Court Information

Information No.: 2811-998-17-22493-00

Date: September 26, 2019

Ontario Court of Justice

Location: Oshawa, Ontario

Parties

Her Majesty the Queen

v.

Jennifer Gibson

Appearances

Counsel for the Crown: F. Stephens

Counsel for Jennifer Gibson: G. Dimitriou

Before

The Honourable Justice P. West

Heard: September 26, 2019, at Oshawa, Ontario

Reasons for Judgment

WEST, J. (Orally):

There are three allegations, three separate allegations that occur on three separate days in respect to this matter. It all culminates on December 2nd, 2017.

The evidence before me from both Mr. Hartwig and Ms. Gibson is that their relationship had some difficulties prior to 2017. In Mr. Hartwig's evidence, it was because of infidelity on the part of his wife, which he believed she was still engaging in. And on Ms. Gibson's evidence, it was infidelity on both of their parts.

It really makes no difference what the reasons were. They were not getting along and they were still living in their matrimonial residence. At times, staying in the same bedroom at night and at other times, when they were experimenting with separations, they were living separate and apart, but in the same house.

I understood there was one brief separation where they attempted it in September, maybe through the fall of 2016, but by the spring or late winter, early spring of 2017, they were back in the matrimonial bedroom. Both of them were working, their finances were being shared, they were trying to reconcile.

First Allegation: Threat on March 29, 2017

The first allegation relates to a threat. It was supposed to have been made by Ms. Gibson on March 29th, sometime between 7:00 and 10:00 p.m. And the only evidence we have is Mr. Hartwig's evidence, which in my view, changed when he gave his evidence, as opposed to the note that he says he made in his Outlook, which he ultimately provided a photocopy to the police, where he has made a note, "J walked out", this is, Wednesday, March 29th, 7:00 to 10:00 p.m. "Talk about money, argued, did not say when she was coming back, no idea where she went. Said if I fuck her over, would cut my throat."

That changed in his evidence in-chief and cross-examination to words to the effect that she was going to break in the house and cut his throat. That was the threat and that actually was repeated and I will get to this again. He said that it occurred on a different date, that on or about December 2nd, 2017, that the allegations of assault and threatening were made. And the threatening is that Ms. Gibson threatened Mr. Hartwig by stating that, "If you fuck me around, then I'm going to break into the house and slit your throat." Which is different from what he wrote in his Outlook, recorded in his Outlook.

There were differences in the dates in-chief. He initially said it was at the beginning of March of 2017, but then he was shown Exhibit 2, which is the note that he made in his Outlook where clearly the date is indicated as March 29th.

Ms. Gibson's evidence in respect of that is that on March 29th, she had recently got new employment in March, that they were back sleeping in the same bedroom. Their finances were shared and they were trying to reconcile and restore their marriage and things were good according to her. And even according to Mr. Hartwig in his evidence in cross-examination, he agreed that finances were being shared. There were no financial issues. Bills were being paid. Both of them were working. They were in the same bedroom. There was no reason, he could not provide any explanation why he had a talk about money and knew nothing about it, what the context was and, based on the evidence I heard, there was no context for there to be an argument over money at that time.

Second Allegation: Assault on November 12 or 19, 2017

The second allegation is either on the 12th or the 19th of November, 2017. In my view, it really does not matter what the date is. The allegation of assault there is that there is an argument. Again, Mr. Hartwig has no recollection and can provide no details in his evidence in-chief or in cross-examination when he is challenged on this, as to what the argument was up in the guest bedroom, because now they are living separate and apart. He can provide no details. Does not remember the context, does not remember what the argument was about. But she threw a contact lens solution bottle, which flew over his shoulder, according to him.

I should indicate, Ms. Gibson says that that never occurred. Ms. Gibson also says the threat that is alleged on March 29th or at the beginning of March or on December 2nd, depending on which version you look at, it never occurred. She never threatened to cut his throat or slit his throat, it never happened.

The assault, though, in respect of the November date in 2017, relates to her then coming down into the kitchen and he cannot remember why he was in the kitchen or why she followed him in the kitchen or when she came into the kitchen after throwing the contact lens solution bottle. He cannot remember times, cannot remember any details, but at that point, she struck him. Swung at him twice in his face and kicked him in the shins.

As I have indicated, Ms. Gibson denied throwing the contact solution bottle. She also denied striking him with her hands twice or any number of times or even kicking him in the shins. She denied that.

Third Allegation: Assault and Threats on December 2, 2017

The next allegation of assault occurs on December the 2nd, 2017. And this is when the police are called. And the allegation there is that they are now fully separated. They are two days on, two days off. Living in separate residences when they are not on with the kids. The kids are staying in the house, the two children who are five and six. One in grade one, one in senior kindergarten. And this was the end, on December 2nd, of Mr. Hartwig's two days and he concedes in his cross-examination that he had received emails that Ms. Gibson was coming at 7:30 p.m. to take over.

He has a different version as to how she was to come into the residence and maybe this in fact, was something that they had worked out. Certainly based on the email that is marked as Exhibit 3, in terms of Mr. Hartwig's attempts, the separation agreement and were entering into an agreement with Ms. Gibson in terms of their conduct with each other in the raising of their two children and in sharing expenses and whatnot.

He was supposed to go out by the garage. She was supposed to come in the front door. She does not do that, she comes in through the garage. He says she comes ten minutes late from when she said. She says she arrives on time. Maybe their watches were not set to each other.

What is interesting about that date though is that she is, Ms. Gibson testified, she spent time with her father that day and wrote up because of the November 2nd email that she had received from Mr. Hartwig, her own views as to how the separation should occur. And she sent that by way of email to him. So Mr. Hartwig would have received it on December the 2nd.

I was never provided that email, but Mr. Hartwig in his evidence admitted that he had received such an email. He was not happy about it and that Ms. Gibson attempted to speak to him about it in the garage when he was leaving with his jacket on, having earlier put all of his belongings in his car.

That leads to an argument. I think it is curious that Mr. Hartwig would close the garage door, particularly in light of his allegations of what happened on November the 12th through the 19th and the threat that was made against him on March 29th.

You want all of the neighbours on your cul-de-sac to hear what is going on inside the garage, particularly when there has been a death threat. And particularly when there has been assaultive behaviour. But he closes the door, so nobody can hear what is happening inside the house. That is an observation that I make.

He then says that when they end up in the laundry room area, she is moving towards the kitchen, all of sudden, she turns and she accuses him of taping her, taping their conversation. And this is my note of the evidence at this point. "She accused me of recording her. I have done this in the past." And then it is his allegation that she struck him as he was pulling his phone out with his left hand.

It is curious to me, why there would be an allegation that the conversation is being taped, something he has done in the past, if his phone was in his pocket. This is an after the thought from his point of view. I do not accept his evidence on this. I believe he had the phone out. Well, it is the only thing that makes any sense to me, because why would she accuse him of taping? There would be nothing she could point to.

He then says that she struck him as he is pulling the phone out. And then he says, "She struck me and then went for the phone and knocked it out of my hand." Now, Ms. Gibson's evidence is, he had the phone out already. It was over his hand was over his head. She described it both in-chief and in cross-examination. He was raising the hand up to put it out of her reach. He is taller than she is and she was reaching for it and in the process of reaching for it, it was her evidence that her hand came into contact with his glasses and the glasses were knocked to the ground.

Now, Mr. Hartwig's evidence is, that Ms. Gibson struck him at least ten times, with a flurry of punches and when she went to grab for the phone, it caused it to become dislodged from his hand and go behind the dryer. But his evidence is in agreement with Ms. Gibson, is that she was going for the phone. The difference between the two of them is that, he is saying, she is punching him ten times in the face, as well as attempting to get the phone. And he was, in his evidence, "I was defensive all the way."

So that is where the inconsistency in both of their evidence is. It is that, Ms. Gibson says, she never intentionally struck him. It was in her attempt to get the phone because he had taped her in the past and she was trying to get the phone, which Mr. Hartwig agrees with. But his evidence is, that she punched him ten times, prior to attempting to get the phone, knocking it out of his hand. So that is the evidence.

Legal Framework

As in any criminal case, Ms. Gibson is presumed to be innocent until proven guilty. And I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony.

I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt. As this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.), R. v. Lifchus, and R. v. Starr.

Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit Ms. Gibson if I accept her evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole.

If I reject her evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept, convinces me of the guilt of Ms. Gibson, beyond a reasonable doubt.

Cases are clear. I do not have to follow every aspect of W.(D.) and Justice Cory's indication as to what I have just recounted in that same fashion. I have to look, ultimately at the whole of the evidence. But if the evidence of the Crown, on its face, does not satisfy me beyond a reasonable doubt, that ends the case, in my view.

A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt. That is from W.(D.) at page 409, per Justice Cory.

And as the Ontario Court of Appeal, in R. v. Hull, noted, and I am going to quote from that judgment. This is at paragraph 5:

W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses.

The Court of Appeal in Hull continued:

However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

Proof beyond a reasonable doubt means what it says. There is nothing illogical in rejecting Ms. Gibson's evidence, but still not being sufficiently satisfied by the complainant's evidence, Mr. Hartwig in this case, to find that the case has been proven.

A state of uncertainty at a trial like this, where the Court has heard two conflicting versions from the two parties involved is not uncommon. And ultimately, if I have a reasonable doubt on the whole of the case, that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witnesses or the absence of evidence, the charge must be dismissed. That is Lifchus.

Credibility Assessment

There are three areas of the complainant's evidence that cause me serious concerns about his truthfulness and credibility.

First Area: Strangulation Allegation

The first relates to his evidence in-chief and in cross-examination as to what he testified, he overheard Ms. Gibson say to the 9-1-1 operator, what her husband had done to her.

Ms. Gibson called 9-1-1 first and perhaps, that was because Mr. Hartwig was trying to recover his cell phone that had been knocked from his hand behind the dryer. Fact is, he called 9-1-1 after she did.

Mr. Hartwig testified, his wife told the 9-1-1 operator that he had strangled her. He described observing her, sitting on the floor with her hand around her throat, strangling herself.

Ms. Gibson never told the 9-1-1 operator, her husband strangled her. In fact, despite being asked by the operator if her husband had choked her on two occasions, Ms. Gibson answered, "He had not, he did not." He pushed her against the wall. There was pushing back and forth. Nothing about strangling.

I find Mr. Hartwig lied about overhearing this being said by Ms. Gibson to the 9-1-1 operator. Further, the officer who attended the residence and testified in-chief, very little, but was cross-examined at great length about his observations, made no note of any marks or redness to Ms. Gibson's neck.

I also do not believe Mr. Hartwig's evidence that he observed Ms. Gibson strangling herself with one hand. And there is a good reason why I reject that evidence and do not believe it and believe that Mr. Hartwig made that up. Because that is because throughout the 9-1-1 call, Ms. Gibson can be heard comforting her children and in particular, her youngest, who can be heard crying and whimpering and it was clear to me from the 9-1-1 call that her child was in her arms the entire time of the call until the police arrived. That is an irrefutable conclusion and inference that I draw from that 9-1-1 call. It does not lie. Mr. Hartwig did.

Second Area: Eyeglasses Allegation

Further, Mr. Hartwig testified, when he came back into the house from the garage, his wife was upstairs. Now, that was inconsistent with Ms. Gibson being on the phone, calling 9-1-1. Because he is looking for his phone and he says, she called 9-1-1 when she left the laundry room. And he called after because he had to find his phone behind the dryer.

He testified, his wife was not wearing glasses when she came into the house. Again, that makes no sense. She had not been in the house for two days. This had been his time with the children. One does not leave their glasses behind and then go upstairs and grab them.

His evidence was, when he saw her come downstairs, he testified, she had retrieved her eyeglasses and then proceeded to break them in two and throw them on the floor in the laundry room, where they were photographed by the police, Exhibit 1, photographs, 0015 and 0016. He denied breaking those glasses.

Ms. Gibson identified the two pieces of eyeglasses as being hers.

Well, the first thing I will say about Mr. Hartwig's evidence, as I have already indicated, it was clear from the 9-1-1 call, that Ms. Gibson was comforting her children in the living room area of the house. You can hear the youngest child throughout the call, crying. You can hear Ms. Gibson talking quietly to her son and trying to calm him down. You can hear the 9-1-1 operator talking to Ms. Gibson about her son, trying to calm Ms. Gibson down.

You can also hear a male voice throughout the 9-1-1 call on different occasions. And at no time does it appear, from the 9-1-1 call, that Ms. Gibson left where she was with her children, walked upstairs to retrieve her eyeglasses. Ms. Gibson testified, her glasses were knocked off during the altercation in the laundry room and the entrance to the kitchen. And just like Mr. Hartwig's glasses, being knocked to the ground by Ms. Gibson, they were stepped on and broken in that tiny area, as were hers. She never made an allegation at any point, that he had taken her glasses and broke them.

The Crown did not put this allegation by Mr. Hartwig to Ms. Gibson in cross-examination. And in my view, Mr. Hartwig's assertion on this issue is not supported by the totality of the evidence I heard and in particular, the 9-1-1 call and I find again, that he was untruthful and made up a deliberate act by Ms. Gibson, in an attempt to interfere with the police investigation. I find this act did not occur.

Third Area: Affidavit Inconsistencies

A further area, which I am now in the fourth area, but the first three, in my view, that I have just described are the most serious because I am finding Mr. Hartwig lied to the Court.

But another area where he did not lie to the Court, but he lied to a different court, was the affidavit that he swore to in Family Court. Where he described a December incident, which led to Ms. Gibson being charged with two counts of assault and uttering a death threat. He indicates the allegations are, referring to December 2nd, that she struck Mr. Hartwig with a closed hand on the left side of his face, resulting in bruising and broken glasses and I will stop in there. He does not say anything about being struck ten times or being struck repeatedly. Struck once with her left hand, closed fist.

In my view, Mr. Hartwig, in his evidence before me, was embellishing and exaggerating what he had sworn to previously in a Family Court document, an affidavit, his affidavit, which he swore was true and accurate.

He also alleged in this affidavit that, Ms. Gibson threatened him by stating that, "If you fuck me around, then I am going to break into the house and slit your throat." Which is completely different from what he recorded in his outlook, occurring on March 29th.

The affidavit and the evidence in the affidavit is completely contrary to Mr. Hartwig's evidence in court. And when he was confronted with this difference, and I view them as significant differences, he blamed his lawyer. His said his family lawyer was the one because it was his family lawyer who incorrectly recounted his evidence as to Ms. Gibson's assaultive and threatening behaviour.

What that ignores, of course is the fact that this was his affidavit, not his lawyer's affidavit. He read it over and he swore that the contents of the affidavit were true. They were not. This raises, in my view, serious concerns as to Mr. Hartwig's credibility and reliability.

Fourth Area: Allegations Regarding Children

A further area of concern that was not perhaps, explored in as much detail as it might have been, was Mr. Hartwig's evidence concerning his attendance at Durham Regional Police, to raise a concern about his seeing a red mark on his oldest son's neck. He testified, he told the police that he spoke to his wife about this mark and she admitted to him that she caused this mark. It is a serious allegation.

He testified, though, he was only going to the police to get advice and to get help. As I have said, this is a serious allegation of assault against his son, by his wife. No charges were laid and that was what his evidence was, there were no charges laid and he was not looking to have charges laid. He was not looking to have her removed from the house, was not looking to have her charged with an assault charge. And that is her evidence, that is his evidence, rather, in cross-examination. This is at the very end of his cross-examination:

I reported to police that I saw a red mark on my oldest son and spoke to my wife, who admitted that she had caused this. I went to the police for help. I didn't know what to do. So I went to the police for help. It was not part of my intention to have her charged or removed from the home. I was concerned for the safety of my son...

This was his evidence.

Well, he also went to Children's Aid and maybe that was the advice he received from the police, I do not know, it was not put to him. But I heard from Ms. Gibson that he had gone to the Children's Aid Society about his wife's conduct towards both of their children, which Ms. Gibson testified, led to the family being interviewed by Children's Aid.

The children were interviewed separately, she testified, as were she and her husband. And the file was closed and no allegations were substantiated. There was no investigation continued, the children were not taken away from Ms. Gibson. She was not required to only see the children under strict supervision. Children's Aid mandate is the best interest of the child and it would be my view, completely negligent if there was any substantiation of the allegations that Mr. Hartwig brought to the attention.

Mr. Hartwig admitted to Ms. Gibson, on her evidence, that he had been the person to file the complaint. And that is consistent with him going to the police and filing a similar complaint. Again, I find Mr. Hartwig's evidence to be incredible and I do not believe that Ms. Gibson was engaged in assaultive behaviour towards either of her children.

Conclusion

For all of those reasons, those five areas and there are other areas that but I have given those as examples. They are the most serious. I do not accept Mr. Hartwig's evidence. It does not, in my view, prove beyond a reasonable doubt that Ms. Gibson is guilty of the three offences that she is facing.

Now, I will say this. Even if I completely rejected Ms. Gibson's evidence, which I do not, I would not be satisfied beyond a reasonable doubt, respecting Mr. Hartwig's allegations, that he was assaulted on two occasions and threatened on a separate occasion.

In fact, Ms. Gibson's evidence does raise a reasonable doubt in my mind as to whether she assaulted Mr. Hartwig on December 2nd, November 19th and whether she threatened him on March 29th, all in 2017.

In respect of the December 2nd incident, I find there was an altercation between them. I do not accept the Crown's characterization of what occurred when she went to reach for the phone and her hand hit his glasses and his face. Even Mr. Hartwig's evidence, when looked at closely, in my view, is very similar to what Ms. Gibson testified to.

She was trying to retrieve his cell phone. Trying to grab it from his hand. His allegation is, there were deliberate, there was a deliberate punch or there were deliberate punches. That is his allegation. In his affidavit, it was one punch. In his evidence before me, it was ten.

The evidence of the photographs do not, in any way, shape or form, support the allegation of ten punches. It does not even support the allegation of one punch, which he says, caused bruising and he took no pictures after. After he had gone to the police, when the bruising would have come out, if it came out. There were no photographs provided in this trial.

I find that there was, as I say, an altercation between Ms. Gibson and Mr. Hartwig as she tried to retrieve his cell phone and in the process, knocked off his glasses, which fell to the floor. And which in turn, were damaged as a result of either falling from the floor or as a result of the two of them stepping on the glasses. And also, during that altercation, her glasses fell to the floor and again, either through falling to the floor alone or them stepping on them, her glasses, they were damaged as well.

I accept her evidence respecting that she had no intent of striking or punching him and that she did not strike or punch him. Mr. Hartwig testified, she accused him of recording their argument, which he had admitted to doing in the past. And it was his evidence that she struck him, again, punched at least ten times, which I do not accept. He described it as a flurry of punches, which is completely inconsistent and contrary to what he described in his affidavit.

I do not accept his evidence of what occurred in the laundry room. And based on my findings, it is my view that all three charges are dismissed, Crown not having proven them beyond a reasonable doubt.

WHEREUPON THESE PROCEEDINGS WERE COMPLETED

Certificate of Transcript

FORM 2

Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Julie Maxwell, certify that this document is a true and accurate transcript of the recording of R. v. Jennifer Gibson in the Ontario Court of Justice held at 150 Bond St. E., Oshawa, taken from Recording No. 2811-103-20190929-091459-6-WESTPE, which has/have been certified in Form 1.

Signature of Authorized Person

Julie Maxwell

ACT ID 1918953031