Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-19-00281 Date: 2019-11-22

Between:

Her Majesty the Queen

— AND —

Daniel James Ward

Before: Justice P.N. Bourque

Reasons for Judgment

Released on November 22, 2019

Counsel:

• P. Tsiung for the Crown
• S. Fortini for the Defendant

BOURQUE J.:

Overview

[1] On the evening of January 3, 2019, an access visit for this defendant, to see his children went quite wrong. It led to a scene in a parking lot of a condominium complex in Richmond Hill. Most of the action was captured on a CCTV recording of the parking lot. To anyone viewing that video, the impression would be left that we were dealing with a case of dangerous or careless driving, as a boy was run over by the car. First impressions however can be misleading, as this case is actually about an allegation that the defendant (who was not driving the car) is guilty of pulling someone's hair.

[2] The defendant is facing a charge of assault.

Katherine Reid

[3] ...is the mother of three children, two of whom are the children of the defendant. She broke up with the defendant about eight years ago, and it appears that they have had a difficult time with regard to his access to the children ever since. He did not see them for a year, and then there was supervised access through his mother and then on and off again every second weekend access.

[4] She states that on January 2, 2019, she had returned with the children from an extended stay at a cottage in Haliburton. When she returned, he demanded to see his son and she demurred until the next day.

[5] At about 5:00 p.m., she arrived in her car at the condominium complex of the defendant's mother and she dropped off the young boy and girl. She stated that she waited until her children texted her that they had gotten to the apartment when she saw her daughter coming back down. She said that her daughter had been sent away and that the defendant only wanted to see the son. The complainant called up and told the defendant that he could not just see the son and he had to bring him down. The defendant did come down with his son.

[6] She describes the defendant as "storming towards her vehicle". She stated that he was yelling at her and went up to her door saying, "Look what you have done". He was swearing at her. She says that all the children were terrified. The defendant somehow opened the back door and then he grabbed her hair. She stated that she backed up the car and then drove it forward back into the parking spot. She said that she saw the defendant over her son and he was saying that "I had just run over him". She called 911 and the police and ambulance came. The police arrested the defendant.

[7] There was a CCTV at the complex and two portions of it were played. One portion is from 17:03:05 to 17:03:42. The second portion is from 17:03:57 to 17:04:36. There is no audio. I can see a man "walking" (not storming) up to the driver's side of the car and there is a boy following him. He speaks to the witness for a few seconds. He hugs the boy and then opens the driver's side rear door. He is interacting with a person in the seat behind the driver and the boy gets in on the opposite side.

[8] The first tape ends here. In the second tape, the defendant is at the rear door and it is open. Approximately 11 seconds after the tape starts, the car moves backwards quickly. The defendant is hanging on to the car door which is open. The car stops and moves back into the parking spot. The car stops for a few seconds and then a boy can be seen coming from behind the car and he jumps up onto the defendant. The car reverses quickly again and then the boy falls onto the ground. The car then goes forward and the boy appears to be under the wheels of the car. The tape ends. It is very faint and hard to see inside the car but there is one point that the defendant's arm can be seen to be reaching over the front seat and that is when the vehicle begins to reverse for the second time. While it is not conclusive, this maneuver cannot be seen before that time. In fact, for most of the time that the car is reversing for the first time, the defendant is quite a way out of the vehicle. His body can be seen in front of the rear wheel. It would be impossible for him to reach the distance required to grab (or keep grabbing) the hair of the complainant.

[9] The witness stated that after the defendant pulled her hair (which cannot be seen on the video although it could be obscured) she honked the horn and after about 3 seconds she reversed. The time seems to be longer on the tape.

Some Credibility Issues

[10] This was an unfortunate event which occurred in the context of a child access situation. The witness had become upset with the defendant over her belief that he only wanted to see the son and not the daughter. She was therefore cancelling a visit which had already started. While she attempted to say that she was always non-confrontational with the defendant because of the children, I have reason to doubt that assertion. She could have spoken to the defendant (or his mother) about this issue before arbitrarily ending the visit.

[11] While she denied that she was angry, all of her actions (as seen on the video) were consistent with anger. I have already noted that the video contradicts her assertion that he was storming towards the car. The video also shows him knocking on the door two times in succession. It does not show him continuously slamming on the door in the way that she demonstrated in court. The video does not show him opening her door, but in fact shows him closing her door. The video shows him hugging his son before the son gets into the car. The witness did not mention this in her evidence at all. The video also shows him opening the rear door and perhaps interacting with the person in the back seat.

[12] In none of this does it show any agitation on the part of the defendant. In her evidence in-chief, she stated that when she was fearful and put the car in reverse she did so to "nudge" him. In cross-examination, she refused to admit that this may have put him in some danger. She said that he was a "big" man.

[13] In fact, while she was taken by the defence through the video clips, she would refuse on occasion to admit what was clearly being shown.

[14] The defence put to her their theory of the case, that is, she reversed the car to nudge him away, that he began to yell at her to stop, she did stop but then returned to the parking spot and the defendant was yelling at her for running over his foot and she then reversed the car again and that is when he grabbed her hair and that is when the son came out of the car and around to where the defendant was and tried to climb on his back and that is when the son fell and was run over. The witness denied these suggestions and even refused to answer the question as to whether the son was run over at all.

Defence

[15] The defendant testified. He admitted that he has a previous finding of guilt with regard to an assault upon the complainant in 2012. I will not review his evidence in detail. It is largely confirmed by the video. He adds that she at first opened the door and he closed it. He also stated that she was swearing at him throughout and before the first movement of the car, she said "I'm out of here". He also stated that he realized after the event that his hoodie could have been stuck on the door handle of the car and that is why he was held when the car moved. He also said that the car ran over his foot and he attended the hospital the next day for soreness to his chest and for the soreness to his foot.

[16] He ultimately stated that he only pulled at the complainant's hair when she went to move the car backwards the second time in an effort to stop her from moving the car.

[17] The Crown took the witness through the video. He was attempting to show some discrepancies. The are potentially some, but I can see the video. I can see that he walked up in a slow fashion. The Crown attempted to suggest that the closing of the door was a hard movement. The witness did not agree and the video does not show that.

[18] As to the point he first heard her yelling, I do not think that anything turns on it. In fact nothing about the first interaction is important except whether there is anything that shows me that he is pulling her hair. I can't see anything, at least in the initial movement of the car. I can see a reaching may be forward by him at the start of the second time that the complainant backs up the car.

[19] With regard to the options of the defendant as this was progressing, I find this all happened very fast and I cannot judge the actions of the defendant with the degree of precision that the Crown suggests. I do not think he had much time to make any rational decisions at all. His foot had been run over at this point. I am amazed that he did not fall and suffer some serious injury in this incident.

[20] In any event, the defendant admits pulling her hair but only in an effort to get her to stop moving the car, on the second occasion that the car backed up.

Conclusion

[21] The information in this case alleges a charge of assault by the defendant upon his former spouse during a disagreement over child access. This case is actually not about that at all. It is really about the actions of a woman in the course of this dispute, who decided to reverse her car on two occasions to dislodge her former spouse from his position in or beside her car. It is clear that she does not care greatly about any consequences to him. She did not see her son move over behind the car to where the defendant was. She was clearly not looking behind her before she backed up the car.

[22] The second time she backed up, her son fell under the wheels of the car. The only good news about any of this is that I am informed that the child was not seriously injured. What is obvious from the video evidence is that it is entirely consistent with the defendant's version of events. While parts of it are consistent with the complainant's version, there are many things (noted above) which are clearly inconsistent with her viva voce evidence, and the statement that she gave to the police. I am convinced that if there was a careful review of this video before these charges were laid, then we would not be here today dealing with a charge against this defendant.

[23] As a result, I believe that the defendant's version of events is more consistent with the video evidence and upon that he is entitled to an acquittal. As he pulled at her hair for the purpose of stopping her from further moving the car, I find that a very reasonable act of self defence.

[24] I am relying upon s.34 of the Code. I need not review all the subsections of the Code. The car had already moved and had subjected him to extreme danger. His foot had already been injured. She clearly did not care that her actions could lead to injury. The Crown has not only failed to prove a lack of self defence beyond a reasonable doubt, I find as a fact that the defendant's actions are entirely consistent with a desperate (and quite minimal) act of self defence.

[25] I find the defendant not guilty of the offence.

Released: November 22, 2019

Signed: "Justice P.N. Bourque"