Court File and Parties

Date: June 6, 2019

Court File No: 18-0077

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

L.E.S.

Before: Justice Michael G. March

Heard on: October 30, 2018, January 4, 2019, March 26, 2019, March 29, 2019, April 4, 2019

Reasons for Judgment released on: June 6, 2019

Counsel:

• Caitlin Downing, Counsel for the Crown
• Mark Huckabone, Counsel for the Accused

Introduction

[1] The accused, L.E.S., ("L.E.S.") stands charged that:

1. between January 1, 2006 and January 31, 2007, he did carry a weapon, to wit, a beer bottle in committing an assault on T.W. ("T.W.") contrary to s. 267(a) of the Criminal Code ("the Code");

2. between September 1, 2015 and October 31, 2015, he did commit an assault on T.W. contrary to s. 266 of the Code;

3. on or about November 3, 2015, he did commit an assault on T.W. contrary to s. 266 of the Code; and

4. on or about October 17, 2017, he did commit an assault upon T.W. contrary to s. 266 of the Code.

[2] L.E.S. and T.W. were in a common law relationship for approximately nine years. Initially, there were good times. Then there were occasional periods of separation. They had two children together. At present, sadly, custody of the children is a live issue for determination in a family court.

[3] At the time of final separation in or about February 2016, L.E.S. assumed 'de facto' custody of the children at the residence T.W. and he had been sharing in Pembroke. T.W. returned to her hometown of Hamilton to live.

[4] In September 2017, T.W. came back to Pembroke. She stayed periodically with L.E.S. and their children until October 17, 2017, when he forcibly ejected her from the premises. T.W. called police. L.E.S. was charged with assault for having shown her the door as he did. Additionally, historical charges were laid based on accounts of past instances of domestic violence chronicled for police by T.W.

Summary of the Relevant Evidence

Cst. Holt

[5] At or about 9:18 a.m. on October 17, 2017, Cst. Holt received a call for assistance at 477 G[…] Road in Pembroke. He arrived shortly after. He found T.W. outside the residence. She was wearing a black hoody, sweat pants and socks. She was shoeless.

[6] Speaking to T.W., Cst. Holt could see she had been crying. He asked her about the reason for her call to police. He formed his grounds for L.E.S.'s arrest as a result.

[7] Cst. Holt observed injuries to T.W.'s person. Both of her knees were scuffed. There was a small cut to her right knee. He saw a bruise on the inside of her left foot.

[8] Her clothing was torn. The shoulders of her hoody appeared to have been grabbed and stretched. They had holes in them as well.

[9] Upon finishing his conversation with T.W., Cst. Holt proceeded to arrest L.E.S., who had returned to the residence. Initially, L.E.S. had been absent, when the officer arrived.

[10] L.E.S. exhibited no injuries. There was no dishevelment of his clothing. He appeared in good health. He was calm and cooperative with police.

[11] Having taken a statement from T.W. at the police detachment later that morning, Cst. Holt returned her to the residence. He was able to unlock the door using a code given to him by L.E.S. T.W. did not know it. She was then permitted to retrieve some of her belongings.

[12] Inside the residence, Cst. Holt observed a number of pencils, markers and crayons strewn about on the floor. He noticed two chairs on their sides in a dining area near a table. The table itself remained upright.

[13] When shown photographs taken of T.W., Cst. Holt was able to confirm injuries she sustained, as well as damage to her clothing. He saw:

• the beginnings of bruising to her left foot,
• a small cut or abrasion to her right knee,
• a scuff mark on her left knee, and
• a tear on the left shoulder of her hoody.

[14] Under cross-examination, Cst. Holt agreed that T.W. did not seem as though she had been "…thrown around like a rag doll."

[15] In other pictures of T.W. shown to Cst. Holt, he was able to identify a tear on the right arm of her hoody. Cst. Holt acknowledged that T.W. did not complain of any scratches or soreness underneath the ripped areas of her clothing.

[16] In terms of observations made of L.E.S., Cst. Holt confirmed that L.E.S. was not in a state of alcohol or drug at the time of his arrest.

Cst. Milloy

[17] Cst. Milloy attended at G[…] Road in Pembroke to assist Cst. Holt the morning of October 27, 2017. She observed injuries to the person of T.W., as well as damage to her attire.

[18] She saw:

• a scuff mark on T.W.'s right knee and blood in that area, and
• a couple of tears to the left and right shoulder regions of T.W.'s hoody.

[19] Cst. Milloy noted at the time of L.E.S.'s arrival back at the residence at 9:34 a.m., she observed a "blood like" substance on his right thumb. She did not take a photograph of it. It was the diameter roughly of a toonie. Otherwise, she saw no injuries on the person of L.E.S.

[20] Under cross-examination, Cst. Milloy confirmed she did not point out to Cst. Holt the "blood like" substance. She ventured the blood could have come from either L.E.S. or T.W. She further explained that in filling out L.E.S.'s Prisoner Lodging Form, she would have asked him if he was injured.

[21] Under re-examination, Cst. Milloy confirmed that if L.E.S. had told her he was injured, she would have advised Cst. Holt of the fact. The form, she clarified, is simply a document used by the guards for people in custody. It is not used as an investigative tool.

Cst. Watson

[22] Cst. Watson was partnered with Cst. Milloy the morning of October 17, 2017. Cst. Watson observed T.W. to be shoeless, limping and shaking. To Cst. Watson, T.W. appeared upset. She spoke rapidly. Cst. Watson believed T.W. to be in shock.

[23] Cst. Watson did not recall seeing any injuries on the person of T.W.

T.W.

[24] At the time of testifying, T.W. was 37 years of age. She recounted that she knew L.E.S. since they were young children. They lived in the same neighbourhood.

[25] They began dating in 2006. Their relationship lasted some eight to nine years. She moved from Hamilton to Petawawa to be with him. He was in the military. He was a member of the infantry.

[26] T.W. had been an accomplished athlete. She competed for Canada at the World Championships and Olympics as a speed skater.

[27] T.W. and L.E.S. had two children together. However, their romantic relationship soured in 2016. T.W. moved back to Hamilton. She could no longer tolerate L.E.S.'s treatment of her and his physical abuse. As she put it, she was "…no longer willing to live that way."

The Beer Bottle Incident

[28] In the summer of 2006 or 2007, T.W. recalled a day where L.E.S. began throwing beer bottles at her. They were walking home to their residence on B[...]. They were coming from a function they had attended for military members. T.W. remembered it was sunny and warm. L.E.S. and she were with their neighbours, Ashley and Ty.

[29] T.W. could not recall what the argument L.E.S. and she engaged in was about. She thought he started it. She described L.E.S. as far from sober. She was not drinking any alcohol. She made efforts not to say anything to L.E.S.

[30] T.W. tried to put space between L.E.S. and her when they went inside their home after a 20 minute to half hour walk. She would go to different rooms, but L.E.S. would follow. She then went to the basement.

[31] It was T.W.'s recollection that she had been in the basement only five to ten seconds, when L.E.S. came down too. He was still arguing and yelling. She was almost at the washing machine, approximately 15 feet from the base of the stairs.

[32] L.E.S. took an empty from the nearby 15 cases or so of stacked beer bottles. T.W. heard a bottle smash beside her. Then he grabbed others to throw.

[33] The second bottle that L.E.S. threw T.W. could not recall whether it smashed against the wall or on the floor. He threw at least four bottles. The incident lasted perhaps three minutes.

[34] T.W. tried to protect herself. She put her hands in front of her. She went towards the corner of the basement. There was little she could do. She could not recall if she said anything.

[35] After the fourth bottle was thrown, L.E.S. went back upstairs. T.W. was really upset. She had nothing on her feet. She had to scurry her way through the broken glass. She did not remember cutting her feet. She could not recount whether any bottle hit her directly.

[36] T.W. recalled that after the event and in the years that followed, she raised the incident a couple of times with L.E.S. She did so to confront him about his aggression. His only response was to deny.

The Bathtub Incident

[37] T.W. remembered that one morning in the fall of 2015, L.E.S. pushed her into a bathtub. They were then living in their residence on G[…] Road in Pembroke with their two children. It started when T.W. asked L.E.S. if he could help her.

[38] L.E.S. was on his computer drinking coffee. He became agitated. He exclaimed that he was never able to have five minutes to himself.

[39] T.W. had been in the bathroom with the children. She returned. She believed L.E.S. soon followed. His tone of voice in speaking to her was very negative and aggressive. He was complaining he needed time to himself in the mornings. She asked the children to leave the bathroom.

[40] T.W. and L.E.S. were three feet apart. They stood like that for a couple of minutes. T.W. was holding the door handle waiting for L.E.S. to leave.

[41] T.W. testified that L.E.S. used a lot of force when he pushed the door into her. The edge of the door struck her on the left clavicle, breast, arm and shoulder areas. These were the places on her body she recalled feeling pain. Bruising later formed.

[42] T.W. had been facing the sink with her back to the tub. The force of the strike caused her to fall backward. The area of her back between her shoulder blades struck the wall behind her. She sat in the tub for a couple of minutes trying to figure out what had just happened.

[43] When L.E.S. came back to the bathroom five minutes or so later, T.W. was sitting on the edge of the tub. She believed she got up and sat on the toilet. L.E.S. blamed her for what occurred while yelling at her. She cried.

[44] T.W. eventually cleaned herself up. She readied the kids for the places they had to be. Her head, her back and inside her ears, they all hurt. Her whole body was sore. There were bruises all over her. It was not until a week or so later, she explained, that she really felt it. She continues to suffer from the back injury to the present day. Her MRI, she thought, suggested she suffered a compound fracture. The timeline for when the incident occurred, she affirmed, lined up well. She still feels disabled. She had bruises on her legs, arms, chest and clavicle. However, she did not go to the hospital until a couple of weeks after the incident.

[45] T.W. took a "selfie" of the injury to her clavicle. She described the bruise caused by the door striking her as the size of a peach. Her left elbow, which she photographed as well, depicted what she described as a bruise the size of a loonie. The area of her shoulder, where it meets the neck, she testified, was raised and swollen as a result of its impact with the door.

[46] T.W. took several photographs of her body a couple of days after the fact. She kept them on her phone.

Cooking Incident

[47] T.W. recalled that in June or July 2015, she got out of bed at roughly 3:00 a.m. to find L.E.S. cooking in the kitchen of their home. He had been drinking alcohol through the course of the evening. She asked him to keep the noise down.

[48] T.W. turned to go back to bed. L.E.S. began talking to her. When she turned to face him, he pushed her with both of his hands. He "bulldogged"¹ her to the floor. She fell on her back. He asked her what her problem was. She returned to their bedroom to sleep. L.E.S. resumed his cooking.

October 17, 2017 Incident

[49] T.W. recounted an incident where she was with L.E.S. at the G[…] Road residence. She had returned from the Hamilton area a month or so earlier. The children had left to go to school. She was seated at the dining area table. She began asking L.E.S. questions about speed limits in school and hospital zones. He seemed, she recounted, angered by her queries.

[50] He approached her from the couch. He pushed the table up against her. He pinned her against the wall. He told her he was capable of doing much worse. He relieved the pressure applied to her momentarily, but then pushed the table back against her again.

[51] He took control of her physically. He stood her up against the wall. She struck her foot on the leg of the table as he swung her around. He ended up bulldogging her to the floor. She eventually managed to push him away.

[52] T.W. went to the bathroom. She needed to go. While she was finishing and about to pull her pants up, he appeared and put her over his shoulder. Her pants were still down. She resisted being carried by grabbing anything she could, be it door frames or what not. She managed to escape his grasp for an instant. She fell to the floor, and landed in the hallway.

[53] L.E.S. took hold of her again. He dragged her to the kitchen and through the dining area. He then threw her out of the back patio door with her pants down. Her knees scraped the siding track of the door. He went back inside and locked the door.

[54] T.W. laid outside trying to get over the pain. She managed to get her pants up. She went to sit on a swing.

[55] She saw L.E.S. leave the residence via the back door himself. He asked her what was going on – what was her problem – why is this happening. Once he departed, T.W. did call the police using a phone she had in one of her zippered pockets.

[56] L.E.S. returned she believed with coffee. He told her he had gone to the police; however, he decided to leave before going in. A short while later, police arrived on scene. When L.E.S. returned home, he was arrested.

[57] With the photographs taken by police, T.W. explained that the rips in her hoody were not present prior to being "manhandled" by L.E.S. Her right knee injury was caused by being dragged over the sliding door track. She was unclear as to the specifics of her left knee injury. Her left foot struck the table resulting in an injury to its inner aspect above the arch. T.W. estimated it remained bruised for three weeks. The right leg scrapes took four days to heal. The right knee took longer. The left knee took a couple of weeks to get better.

[58] T.W. attended at the hospital for x-rays.

[59] Everything was checked and appeared to be "okay." She was required to do physiotherapy for six weeks, she testified, as a result of the injuries she suffered on October 17, 2017.

The Medical Records

[60] T.W. visited the Pembroke Regional Hospital on three separate occasions. The records of these visits were admitted without any objection by the defence for purposes of allowing the Court to know the clinical findings made. The medical professionals did not detect any serious or significant injury. Minor cuts, abrasions, bruising and swelling were noted. No fractures nor joint effusions were detected through the diagnostic imaging. Physiotherapy was recommended for the difficulties experienced by T.W. in bending her right knee. Pain relief medication and the application of ice to reduce swelling was recommended.

[61] Under cross-examination, T.W. confirmed that she turned over photographs to police to document the injuries she suffered from the bathtub incident. She believed she took the photographs between two and seven days after the event.

[62] T.W. acknowledged that in 2006, she hurt her back seriously in a motor vehicle accident. She was prescribed oxycontin. When asked if she became an opiate addict, T.W. responded with a question of her own, namely, "What's your definition of an addict?"

[63] T.W. agreed that for a period of 18 days, Family and Children's Services apprehended her son. She appeared to attribute some blame to her doctors for ever having prescribed oxycontin to her. Any substance dependence appeared to have had its genesis there.

[64] When it was suggested to T.W. that in 2015, she stole $6000.00 in cash from L.E.S. to feed her addiction, she denied this. She testified that she did not know how much money L.E.S. had set aside in their bedroom. She did not take it all. She did not know how much she had left.

The Beer Bottle Incident (Cross-Examination)

[65] T.W. did not recall drinking any alcohol, or consuming any marijuana over the day or evening of this event. She could not recall what triggered an argument between L.E.S. and her. She remembered it began roughly ten minutes from getting home.

[66] She explained that she wanted to get away from L.E.S. She went to the basement. She did not recollect him saying anything to her before he began throwing empty bottles. She did think he was trying to hit her with them.

[67] She agreed she did not see the first bottle thrown. She heard it break close to her. She turned around to see the second one thrown. It landed at her feet. The third one, she seemed to recall, hit the wall or the washing machine. The fourth one she was not sure about.

[68] She denied that she was fabricating the incident. She conceded that nothing happened after the incident. They remained home. However, whenever they argued, he would go his way and she would go hers.

The Bathtub Incident (Cross-Examination)

[69] In 2015, T.W. testified that she was working at Home Depot in Pembroke. Her son was in daycare, and her daughter had a dental appointment the day the bathtub incident occurred. She believed, upon reflection, it transpired in November, shortly before her son's birthday.

[70] She surmised that L.E.S. did not think he should have to get up off his chair when she asked for his assistance. She returned to the bathroom. She was brushing her daughter's hair. When L.E.S. came to the bathroom arguing, she asked their children to leave. He was complaining about not having five minutes to drink his coffee.

[71] She denied that she tried to guide or usher L.E.S. out of the bathroom before she was struck by the door. He was still in the bathroom, she maintained, when he used it to strike her.

[72] It was then pointed out to her that she initially claimed the door struck her on the left side of her chest area. She corrected where the door hit her body when she was shown the photographs she had taken of herself. She had difficulty pointing to other areas where injury resulted, and which her 'selfies' could confirm.

[73] As T.W. fairly stated, she could not take photos of her back, nor the back of her head, to document the injuries she suffered. She could only take photographs of what she could see. She conceded that the medical staff, after she attended at the hospital, did not note any areas of concern, even though she explained to them she was pushed backward.

[74] T.W. maintained nevertheless that she fell hard on her bottom and hands. The bruising, she testified, did not appear until a week or two later in any event. When pressed about why she did not attempt to take the photos while the injuries were at their peak, T.W. explained that she was then bedridden. She felt as though she had been in a serious motor vehicle accident again. She missed work. She added that she ultimately ended up in hospital for two weeks around December 23, 2015. During that time, L.E.S. did not bring the children to see her.

The Cooking Incident (Cross-Examination)

[75] When T.W. began testifying under cross-examination, she believed this incident had occurred in the summer of 2007. She related how she came downstairs to find L.E.S. cooking. She then corrected herself that the incident happened in 2015.

[76] T.W. agreed with the suggestion that she did not know what L.E.S. and she had been doing earlier that day or evening. She stated she did nothing other than hang out with the children in any event. She seemed to recollect that she went to bed at around 9:30 or 10:00 p.m.

[77] She described how when she woke up, she looked at her phone to determine it was 3:00 a.m. The kids were sleeping in bed. She descended a couple of steps. She asked why L.E.S. was making noise. She wanted him to quieten down. It was the clanging of pots and dishes which roused her.

[78] She fell backwards towards the steps after being pushed about three feet. She did not hit her head. She did not recall that the altercation caused any bruises, marks or abrasions to her body.

The October 17, 2017 Incident (Cross-Examination)

[79] In re-describing this incident, T.W. confirmed that L.E.S. pushed the table striking her breasts with it. She did not stand up. She remained seated when he pushed the table again. It struck her in the same area of her body.

[80] She asked what he was doing. He did not speak. He then grabbed her by the shoulders and removed her from her chair. He swung her around and she struck a wall. She denied L.E.S. had asked her several times beforehand to leave. She disputed the suggestion that she resisted having to vacate the residence. She was kicking, fighting and screaming, she explained, because L.E.S. had his hands on her.

[81] T.W. denied that the reason L.E.S. wished for her to leave the home was because of her drug use. She pointed out that L.E.S. and she were together when the house was purchased. It was the "marital home." She rejected the notion that L.E.S. paid the mortgage and all household expenses.

[82] T.W. agreed that there is a family court proceeding underway. In this court application, she is seeking sole custody of their children, and wants L.E.S.'s access to them to be supervised. She conceded that she left her family to live in Hamilton for a year or more. She ventured that L.E.S. conspired with the police to have him remain in the home to care for their children. She denied that she was "falling down high" at the time police attended at their residence before she departed with her family members for Hamilton. She agreed that she has never made any official complaint about the female officer with whom she believed L.E.S. conspired to end up with 'de facto' custody of their children.

[83] When referred to the photographs taken of her person on October 17, 2017, T.W. essentially agreed that they depicted swelling, bruising, minor cuts and abrasions mainly to her lower legs, as well as rips in her clothing. She did not recall any injury to her breasts.

L.E.S.

[84] At the time of testifying, L.E.S. was 36 years old. He had lived at G[…] Road in Pembroke for five years with his two children. He explained that he essentially has custody of his kids. There is nevertheless ongoing family litigation between T.W. and him.

[85] He is no longer employed by the military. He was medically released. He is now a pensioner.

[86] He recalled that T.W. and he met in school in Grade 5. They essentially grew up together. While he was stationed in Petawawa, they began seeing one another. He visited Hamilton in the summer of 2006. They dated. By the summer of 2007, T.W. and he were living together in Petawawa.

[87] In the beginning, their relationship was "good." It became "rocky" after a few years of being together.

[88] L.E.S. recalled that T.W. had been involved in a car accident in Hamilton before her move to Petawawa. From that day forward, she was taking pain medication. Initially, she was prescribed Tylenol 3. Later, she began using oxycontin daily. Its effect on her, in L.E.S.'s assessment, was profound. It caused her at times to be agitated, aggressive and/or delusional.

[89] When their son was born in 2013, he was apprehended by the child welfare authorities due to T.W.'s opiate use. This traumatic event impacted, of course, his relationship with T.W.

[90] Ultimately, in February 2016, T.W. moved with the assistance of her family members to Hamilton. She tried to take the children with her. She was intoxicated by drug at the time. L.E.S. would not allow his children to be taken away by her. He retained custody of them.

[91] Police attended at his home on this occasion when T.W. wished to leave with the children for Hamilton. L.E.S. confirmed that he knew a female police officer, but she was not at his home in February 2016.

[92] L.E.S. recalled that after T.W.'s departure, he was on his own for a year to parent their children. He had just been released from the army. It was "rough" trying to manage this.

[93] L.E.S. denied that T.W. had any proprietary interest in the G[…] residence he acquired in May 2015. She did not contribute to its purchase. She was not working, although, while together, they did share in the household chores.

The Beer Bottle Incident (L.E.S. Testimony)

[94] L.E.S. rejected outright the occurrence of any such incident. He testified that he has never thrown a beer bottle at T.W. Indeed, he could not recall any daytime military function which T.W. would have attended with him. He recalled that he did store his empty beer bottles in the basement of their former residence on B[...]. Nothing of the sort happened, he proclaimed, as described by T.W. in her evidence regarding the throwing of beer bottles.

The Bathtub Incident (L.E.S. Testimony)

[95] Similarly, L.E.S. denied that any such incident involving him striking T.W. with a bathroom door ever happened. He disagreed that having his morning coffee interrupted could send him into a rage of that proportion.

[96] Specifically, he testified he did not:

• follow her into the bathroom after being asked to help,
• slam the door into her,
• cause her to fall into the tub, or
• injure her in any way as a result.

[97] L.E.S. could not recall a time when T.W. was in hospital for weeks or months, unless it was when she was still living in Hamilton.

The Cooking Incident (L.E.S. Testimony)

[98] Again, L.E.S. refuted the occurrence of any incident where he would have pushed T.W. over a noise complaint she had about his late night cooking. It was not a common practice for him to eat in the early morning hours. To the contrary, in or about 2015, it was T.W., who would be more apt to have left their bed in the middle of the night.

The October 17, 2017 Incident (L.E.S. Testimony)

[99] L.E.S. distinctly remembered that this was the day he was criminally charged. He explained that T.W. had only showed up uninvited a short while before at his home. This would have been around the time that his son was starting school. He told her that she could not be there. She did not live there anymore.

[100] He asked her multiple times to leave. He was worried for his children's safety. He found her on one occasion passed out in bed with pills nearby.

[101] L.E.S. testified that he carried her out of the home the morning of October 17, 2017, while she fought and resisted his attempts to do so. He confirmed that he succeeded in removing her. He intended to go to the police; he in fact, drove there, but he did not have the heart to go inside.

[102] Prior to physically taking control of her, he denied that he pushed the table into her chest area. Nor did he have to move the table to get at her. He simply picked her up under her arms like a child, and put her over his shoulder. He carried her five feet and placed her outside. He did not intend to hurt her at all. It took 30 to 45 seconds to get her outside. She did not complain of being injured.

[103] L.E.S. believed that the patio door was already open. He did not throw or push her out. He allowed for the possibility that her legs could have gotten scraped as she went through the door.

[104] L.E.S. conceded that he probably made the holes in T.W.'s hoody. He also confirmed that he could have caused all the injuries photographed by police on October 17, 2017.

[105] Under cross-examination, L.E.S. chronicled the times at which he lived with T.W. From 2007 to 2015, they resided on M[…] Crescent in Petawawa. He then bought the house on G[…] Road in Pembroke. At that point, T.W. was trying to obtain subsidized housing. She left for Hamilton in 2016 when she was removed from his home by police. She did not move back to Pembroke until September 2017. It was around the first day of school for their children.

[106] Thereafter, T.W. would stay periodically with him and the kids. She would crash on the couch. On other occasions, she would stay at a motel.

[107] L.E.S. explained that T.W. and he were not trying to reconcile. The separation had gone too far. She did not have a key. At the same time, he did not have the heart to tell her to leave – at least not until October 17, 2017.

[108] L.E.S. clarified that family court proceedings did not commence until after he was criminally charged. There had been no discussion between T.W. and him about who would have custody of the children until then.

[109] When T.W. moved back to Hamilton, L.E.S. believed this was in or about February 2016. She was inebriated likely through opiate use the day she tried to take the kids, and police were called. He maintained that she was in no condition to parent. The police, he reckoned, left the children in his care out of concern for their safety. T.W., L.E.S. proclaimed, needed someone to watch her.

[110] A Domestic Violence Supplementary Report was shown to L.E.S. He could not remember this document being filled out by Cst. Howat on February 5, 2016. He did not recall telling police that T.W. had lupus and is on medication. He explained that he was an emotional wreck that day. Nor did he recollect telling police that there had been no change in T.W.'s drug use in the lead up to February 5, 2016.

The Beer Bottle Incident (L.E.S. Cross-Examination)

[111] L.E.S. was not cross-examined about this event – even whether it happened or not.

The Bathtub Incident (L.E.S. Cross-Examination)

[112] L.E.S. acknowledged that T.W. and he lived together in November 2015. They were trying to make their relationship work. They were communicating as best they could. L.E.S. still loved her.

[113] He did not recall ever accompanying T.W. to the hospital. She would not permit him to speak to her doctors. He did ask her why she would be out all night, and why she would be getting herself in states of inebriation.

[114] When shown the hospital records from November 24-25, 2015, L.E.S. did not deny that T.W. reported to the medical personnel that her visit had been occasioned by a fall. He did not dispute the fact that she may have fallen. He simply disagreed that he struck her with a swinging bathroom door, which in turn caused injuries to her.

The October 17, 2017 Incident (L.E.S. Cross-Examination)

[115] Regarding the day of his arrest, L.E.S. recalled that T.W. was seated at the dining room table in his home. She was in the chair closest to the window. He was telling her she had to leave. She told him she would not. The patio door to the outside was only 7 to 10 feet away. It was a 30 second event from start to finish.

[116] L.E.S. picked T.W. up underneath her arms. He did not "fireman carry" her. He was trying to usher her up and out. She resisted his attempts to force her to leave. She punched him when she could. He was clear, however, that he was uninjured by T.W.

[117] He did not deny he may have had blood on his hand, as observed by Cst. Milloy. It was likely his own. He welds and he paints.

[118] L.E.S. agreed his behaviour was not his finest moment. He described himself as in shock having found the pills lying about. It terrified him. He thought he may lose his children. He was worried that T.W. may come up with some scheme to cause him to forfeit custody of the kids.

[119] He denied that he:

• grabbed her by the sleeves,
• swung her around, and
• pulled her by the arms.

[120] He maintained that he asked T.W. to leave several times. She responded with "…screw you." He reacted to this by picking her up, carrying her out and putting her down on a bench. He told T.W. he was going to the police.

[121] L.E.S. testified that he thought he was within his rights to eject a trespasser, especially after finding pills and a bag of pot. He was worn out, tired and frustrated. He was not thinking straight. He was overwhelmed. In hindsight, he agreed he could have called the police for assistance. He was unsure whether the police would remove her however.

[122] To L.E.S.'s mind, he was protecting his kids. They had been through a lot in the past year. Together the kids and he would sit on the couch crying about T.W.'s absence. As L.E.S. explained, "When you love someone that messed up on drugs, it's concerning."

[123] He agreed he did let T.W. back into his home. The children saw her when she showed up in September 2017 out of the blue. He was not going to turn her away, but shortly thereafter, she was coming and going.

Issues

[124] The evidence adduced at trial raises the following issues:

1. Is L.E.S. guilty of assaulting T.W. by throwing beer bottles at her in or about 2006 ("the beer bottle incident")?

2. Is L.E.S. guilty of assaulting T.W. after she confronted him about his loud, late night cooking in the fall of 2015 ("the cooking incident")?

3. Is L.E.S. guilty of assaulting T.W. in November 2015 for slamming a door into her chest and thereby causing her to fall backward into a bathtub ("the bathtub incident")?

4. Is L.E.S. guilty of assaulting T.W. on October 17, 2017 for ejecting her from his home ("the October 17, 2017 incident")?

The Law

[125] As with many criminal trials, findings of fact and credibility must be made to determine whether the Crown has proven the guilt of an accused beyond a reasonable doubt. Where the accused testifies and offers contrary evidence to that of the complainant, a W.D.² analysis applies. L.E.S. did so in respect of Counts 1 to 3 (i.e. the beer bottles, cooking and bathtub incidents).

[126] In respect of the October 17, 2017 incident, L.E.S. raised a defence of property under s. 35(1) of the Code. It reads:

35. (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

Analysis

The Beer Bottle Incident

[127] L.E.S. denies this incident ever occurred. I cannot reject his denial. It may reasonably be true.

[128] This incident appears to have materialized out of thin air. T.W. cannot remember what started the argument. Yet the incident itself was sufficiently significant in her mind that she brought it up with L.E.S. on future occasions. Clearly, it was something she was not prepared to let go. Yet her memory of why the argument commenced seems to have escaped her.

[129] I am troubled as well that T.W. could remember four bottles being hurled in her direction, however she could not recall if any hit her directly. It was only the manner in which the first two were thrown that she could recall.

[130] She did not testify about the third or fourth in giving her evidence in-chief. However, she does then remember the mechanics of L.E.S.'s third launch of a beer bottle at her. The fourth remained a mystery.

[131] Although no real inconsistency was exposed in T.W.'s cross-examination regarding the beer bottle incident, the defence does not need to point to one, or any at all for that matter. A story can be fabricated and retold in a consistent manner. Richness of detail, assuming T.W.'s account of the beer bottle incident can be so characterized, does not give her version of events a badge of truth. Where T.W.'s evidence of the beer bottle incident loses its credibility and cohesion is in its inability to supply a preamble and an aftermath.

[132] Having heard her account of this incident, I cannot, as trier of fact, accept that its trigger and T.W.'s reaction to it would be likely to fade altogether from her memory. I was left with the impression that this outburst of anger was the first display of physical violence by L.E.S. toward T.W. Yet what brought it on, and what T.W. did to contend with it thereafter is left completely unexplained.

[133] Under these circumstances, I can have no confidence that this incident ever occurred. Accordingly, I must find L.E.S. not guilty on Count 1, the assault with a weapon.

The Cooking Incident

[134] T.W.'s recount of this incident is bizarre. She awakens to the noise of L.E.S. cooking in the kitchen. She appears to confuse where they were living at the time. She spoke of coming downstairs. She then reflected and realized, it seems, that there would only be a couple of steps to descend from the bedroom she shared with L.E.S. at the G[…] residence to get to the kitchen. 'Coming downstairs' would be an odd description for what T.W. would have to do.

[135] The incident defies all logic as well. T.W. appears to have achieved her purpose. L.E.S. assures her he would pipe down and come to bed soon. She turned to go back to their bedroom. Yet for some inexplicable reason, he approached her from behind and bulldogged her to the ground. This makes no sense. He was getting what he wanted. T.W. was returning to bed and leaving him to cook unperturbed. She was getting what she wanted. He would be finishing up soon and coming to bed. There was absolutely no need for L.E.S. to react violently and aggressively as he did. Furthermore, even though she was forcibly taken to the ground, T.W. appeared to suffer not the slightest injury or discomfort that she can recall.

[136] I note as well that L.E.S. was not even cross-examined on the cooking incident by the Crown.

[137] I have no basis for rejecting L.E.S.'s denial that this incident occurred. Indeed, I accept his evidence that no such complaint about late night cooking was made to him by T.W. I must therefore find him not guilty on Count 2 of the Information.

The Bathtub Incident

[138] When T.W. testified initially about being struck by the door, which toppled her into the bathtub, she indicated her injury was to her left clavicle area. Her evidence changed when she was shown a photograph she had taken of herself. She noted that the injury was to her right clavicle. This is not a minor inconsistency. It was the initial strike to her body. It caused her to fall and suffer what she says has been a chronic back problem ever since.

[139] The photo she took of her right clavicle area was not impressive as a piece of confirmatory evidence. Indeed, many of the photos, which T.W. took and which she maintained depicted her injuries, were not to me, as trier of fact, particularly persuasive. An objective view of the photos, either through inspection of the hard copies printed by the Crown, or by viewing them electronically on a computer screen, revealed nothing more than what appears to be very minor bruising.

[140] T.W., in my estimation, exaggerated what the photos depicted. Like L.E.S., I was unable to see on numerous occasions the injuries she testified were visible in the photographs. If they existed, they certainly did not show up readily in the photographs taken of them.

[141] The Crown in submissions drew my attention to the following photos from the CD, which stored these digital images of T.W.'s areas of alleged injury, and which CD was made an exhibit on the trial:

• 1233 – bruising to forearm
• 1235 – bruising to forearm
• 1236 – bruising to back of hand
• 1238 – injury to clavicle
• 1239 – injury to back of left shoulder
• 1240 – injury to back of left shoulder
• 1265 – injury to clavicle
• 1267 – injury to top left shoulder.

[142] Upon review of these highlighted photos, I can see some bruising or injury depicted in those areas of T.W.'s body. They could well have been caused by a fall. However, L.E.S. did not take issue with the possibility she suffered a fall. What he disputes was being the cause for it.

[143] It seems inconceivable as well that T.W. could have withstood the pain for as long as she did. She testified she did not go to the hospital for a couple of weeks post incident. Yet she likened her condition to having been in another motor vehicle accident.

[144] Upon a comprehensive review of all of the evidence touching on the bathtub incident, I cannot reject L.E.S.'s outright denial of having acted in a manner, either deliberately or recklessly, to have swung a door, which caused T.W. to become injured in the bathroom at the G[…] Road residence. T.W. took photos and created a record thereby. She may not have used those photos immediately by showing them to police and seeking to have L.E.S. charged. Perhaps, in her mind, they were not particularly cogent. What I can safely conclude is that she was keeping them for a reason. At a future point, she knew they may have some value for her. That day appears to have come soon after the events of October 17, 2017, when she clearly had found favour with the authorities.

[145] L.E.S. had just been charged. Her injuries from her altercation with him that day were fresh. It appears the time was then ripe for the unveiling of her earlier photos taken in November 2015.

[146] I note as well that L.E.S. testified that, in November 2015, T.W. was looking for her own accommodation. Custody of the children, should they separate, was likely within her reasonable contemplation. Any evidence that would tend to blacken the character of L.E.S., or paint him as physically abusive, may come in handy to her. T.W. had a design in mind.

[147] For these reasons, I cannot find beyond a reasonable doubt that L.E.S. caused injuries to T.W. in the bathroom of the G[…] Road residence in November 2015. Simply put, I cannot be sufficiently confident that he did what she says he did that day. Without being sure that L.E.S. caused the injuries which T.W. testified she suffered as a result of the bathtub incident, I must find L.E.S. not guilty on Count 3.

The October 17, 2017 Incident

[148] The only basis for L.E.S. to avoid a finding of guilt for his actions of October 17, 2017 is to successfully invoke s. 35(1) of the Code. He admits that he applied force to the person of T.W. He wanted to oust her from his home. When she refused to leave voluntarily, he took matters literally into his own hands. He was going to do what it took to physically remove her from his premises.

[149] I accept that, at that moment in time around 9:00 a.m. on October 17, 2017, L.E.S. was in peaceable possession of his home. I find that T.W. had remained in his home without being entitled by law to be there. Once her invitation had been revoked by L.E.S., I am persuaded that L.E.S. was acting with the intention of removing T.W. from his property. However, I can firmly conclude that his actions in removing her as he did were not reasonable in the circumstances.

[150] L.E.S. had had enough of T.W. His decision to eject her from his home was borne of frustration and pent up hostilities. T.W., in L.E.S.'s mind, had abandoned the family. She had stolen from him. Her drug use had led to the apprehension of his son at birth. The pills and marijuana he had recently found lying about was the last straw. T.W. had to go, and he was willing to use whatever force necessary to throw her out.

[151] I accept T.W.'s evidence that she was pulled and dragged from the G[…] Road residence. The injuries she suffered to her lower legs confirm the very physical nature in which L.E.S. dragged her out of his house, as well as the tears to her hoody.

[152] In the circumstances, L.E.S. could have called police. He was able to obtain their assistance in February 2016 to have T.W. vacate. There was no urgency to the situation. His resort to an immediate physical ouster was not at all reasonable. A cooler head ought to have prevailed. It did not.

[153] Consequently, I must find L.E.S. guilty of Count 4 for having committed an assault upon T.W. on October 17, 2017.

Conclusion

[154] The Crown referred me to two authorities, R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), and R. v. R.A., [2017] ONCA 714. Neither assist the Crown.

[155] In R. v. J.J.R.D., at paragraph 53, Doherty J.A. wrote:

"… The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence."

[156] In this case, T.W.'s evidence stacked against L.E.S.'s gives me no basis for rejecting his denials. Her evidence was flawed in that it was devoid of any hallmarks of truth in many aspects. It lacked an alpha and an omega. Her memory was scant on details she clearly ought to have recalled (e.g. whether a bottle struck her or not, where specifically the bathroom door struck her, whether she was injured after being bulldogged to the ground during the cooking incident, etc.). Her evidence was far from being so singularly impressive that it could serve as a basis for rejecting L.E.S.'s denials.

[157] In R. v. R.A., the Crown referred me to paragraphs 53 to 56. Essentially, the Court of Appeal upheld the trial judge's conviction of the appellant through a clear application of the principle enunciated in R. v. J.J.R.D., even if the trial judge did not specifically refer to that authority (see R. v. Asselin, [2015] ONSC 7494). That is not this case.

[158] L.E.S. is not guilty of Counts 1 through 3 inclusive. He shall be found guilty on Count 4.

DATED: June 6, 2019

March, M.G., J.

Endnotes

¹ "Bulldogging" is the act T.W. described of an assailant with both hands grabbing a person by his or her clothing in the upper chest area and forcibly grounding him or her.

² Cory J. in the oft quoted passage from R. v. W.(D), [1991] 1 S.C.R. 74, offered the following guidance on how trial judges should instruct jurors, or instruct themselves in judge alone trials on the issue of assessing the credibility of witnesses, where an accused gives evidence:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.