Court File and Parties

Ontario Court of Justice

Date: 2019-01-14

Court File No.: Brampton 3111 998

Between:

Her Majesty the Queen

— and —

Iryna Wilton

Before: Justice G. P. Renwick

Heard on: 11-12 September 2018 and 14 January 2019

Reasons for Judgment released on: 14 January 2019

Counsel:

• J. Vlacic, counsel for the Crown
• M. Howatt, counsel for the defendant Iryna Wilton

Judgment

RENWICK J.: (ORALLY)

Introduction

[1] This case involves an allegation of assault and assault with a knife upon David Wilton, by his wife, Iryna Wilton. By the time of this incident the couple had been married for less than two years, but because the defendant was initially still living in the Ukraine, they only lived together for nine months before these allegations arose.

[2] From the start of the marriage, there were issues. The couple agreed after their first night together that Mr. Wilton would use a room in the basement as his bedroom, while the defendant would stay in the master bedroom.

[3] There appear to have been language difficulties between the parties from the outset and eventually unmet expectations and communication challenges led to various tensions between the two spouses. The argument that gave rise to the allegations developed because Mr. Wilton wanted to move new bedroom furniture into the spare bedroom on the upper floor of their home, for him to occupy, rather than continue to remain in the basement.

[4] Other than this couple, there were no other witnesses called during this brief trial. There were some agreed facts respecting two small scratches on the complainant's left forearm near his wrist and what the facts establish is a bite mark on his right inner forearm. As well, although there was only a cursory search done by the police, no knife associated to the alleged assault with a weapon was ever located.

Issues

[5] There are three issues to resolve in this matter:

1. The court must decide what actually took place;

2. Determine if self-defence arises on the evidence and whether it is negated beyond a reasonable doubt; and

3. Determine whether either allegation is proven beyond a reasonable doubt.

General Legal Principles

[6] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution's burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the defendant unlawfully assaulted Mr. Wilton, or that she committed an unlawful assault with a weapon, she will be acquitted of these charges.

[7] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities: see R. v. Starr, 2000 SCC 40, at para. 242. If after considering all of the admissible evidence I am sure that the defendant committed one or both of the alleged offences I must convict her, since this demonstrates that I am satisfied of her guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow.

[8] In assessing the credibility of the witnesses in this case, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D., as applied by subsequent cases and explained by academic commentary:

i. I cannot properly resolve this case by deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt: see David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.

[9] In determining who or what to believe in this matter, I have taken into account the general capacity of each witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.

[10] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[11] In the next part, I will outline some of the evidence. Although several of the facts were agreed by the parties, in terms of the sequence of events, the fact that the defendant bit the complainant, and so on, other facts and the entire context must be determined by the court. I will also provide an assessment of some of the viva voce testimony, with references to the evidence taken. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken lengthy notes, and among other factors, I have assessed each witness' testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.

The Evidence and the Findings of Fact

[12] David Wilton was a hesitant witness who often smiled for no apparent reason. He appeared genuinely nervous throughout much of his testimony. This is a natural response to an unfamiliar setting and I took nothing from his hesitancy or obvious nervousness.

[13] I have difficulty accepting many assertions made by Mr. Wilton, where they are contradicted by the defendant. This is not because I believed the defendant in every case. Indeed, she had credibility and reliability issues as well. Rather, I found parts of Mr. Wilton's accounts incredible, implausible, and unlikely. For instance, Mr. Wilton describes having raised the issue of his occupying the spare bedroom before the incident, but he testified that he tried to keep the bed delivery quiet that morning. This suggested to me that he wanted to have the bed delivered and set up without the defendant's knowledge. This would not have been necessary if this was something that had already been discussed.

[14] As well, when the complainant described the bed and frame having come downstairs after they were delivered in the spare bedroom, he testified that he simply carried them back upstairs and met the defendant in the bedroom. Mr. Wilton described how upset and agitated the defendant was, that she threatened to cut the mattress and she felt he was more concerned about his property than her feelings. Mr. Wilton testified that he was defensive, that he was trying to settle things down, that he had open arms, and he tried to convey that he understood her. However, rather than follow her into the master bedroom when she left, rather than console her, rather than renew the discussion about him moving out of the basement, he simply let it go and returned downstairs. This evidence revealed a lack of concern that undermined his testimony.

[15] As well, given his fears on the basis of what the defendant had threatened, he says he then gathered up all of the knives in the kitchen and put them in his hockey bag in the garage. This is significant. Mr. Wilton's explanation for this action was his fear that his wife was going to slash his new bed. Yet, for some unknown reason, this action was never mentioned to either the 911 operator or the police who attended his residence.

[16] Mr. Wilton also described having removed the television from the master bedroom because he thought it may become damaged by the defendant. This was mentioned almost as an afterthought and did not seem to fit in the complainant's description of the sequence of events. I did not believe this evidence. I do not know when this occurred but it seemed that this evidence was an attempt by the complainant to justify what was likely a punishment of the defendant.

[17] I also had difficulty understanding how the complainant came to be behind the defendant when he says he held her from behind, in a gentle way, but which allowed him to control her arms from hitting him. He says he held the defendant at her lower torso around her arms, but I do not accept this evidence. The defendant testified that at least one of his arms was higher up, around her neck. In terms of the bite to Mr. Wilton's mid-right inner forearm, this is consistent with that part of his arm being close to the defendant's mouth at some point. I find that Mr. Wilton was trying to minimize his grip on his wife when he described both the placement of his arms toward her lower torso and by characterizing his hold on her as "gentle."

[18] After this part of the incident upstairs, Mr. Wilton testified that the defendant went downstairs while he replaced the mattress into the spare bedroom. He said that when he next saw the defendant she held up a knife at eye level and made a grimace as if she were about to stab him. To this, the complainant said he was going to call the police, to which Mr. Wilton says the defendant responded, "good, I want you to do that." He then described walking away to the living room, leaving her in the kitchen with the knife.

[19] I found it most unusual that he was so unconcerned by this apparent threat or assault with the knife that he walked away, he partially turned away from the defendant and then Mr. Wilton called his sister instead of the authorities. Moreover, no knife was ever found by the police after a cursory search of the residence.

[20] The cross-examination of the complainant was also problematic. During cross-examination, Mr. Wilton did not agree that there had been disagreements in the relationship leading up to the incident in question, despite having testified about big communication problems, tensions in the relationship, and a 16-day period when the defendant would not speak to him.

[21] Overall, I was left with an uncertainty about what had actually occurred at the completion of the complainant's evidence.

[22] In terms of the defendant's evidence, it was not any more compelling than Mr. Wilton's. In fact, in places, I found it completely unbelievable.

[23] For example, the defendant could not explain how the box containing the bedframe came to be damaged.

[24] As well, I found it unlikely that Mr. Wilton was angry or unhappy about the division of labour or that the defendant was cleaning the home, as she suggested. Instead, I found that the barriers to understanding Mr. Wilton was a direct result of the defendant's difficulties in English. If he was complaining, it was not that she was too clean or that she was organizing their home, it was that she was causing damage to the floors by trying to move things on her own.

[25] In the end, I have a reasonable doubt about these allegations for two reasons. First, I am not satisfied that the prosecution has proven the assaults beyond a reasonable doubt.

[26] In the case of the assaults alleged to have occurred upstairs, the evidence of Mr. Wilton is not compelling and I am unable to determine who actually assaulted who. Nor can I be certain that the defendant was not acting in self-defence after Mr. Wilton pushed her with the mattress.

[27] I accept that the defendant did scratch at Mr. Wilton, causing his shirt to rip and his left arm to be scratched near the wrist. However, as I say, I am unable to find that this was not an attempt to defend herself from Mr. Wilton's approach after he pushed the mattress and tried to hit her to get her to let go of the mattress.

[28] This is my second difficulty with the evidence in this case. I am not satisfied beyond a reasonable doubt that self-defence did not arise in this case.

[29] I am left in the third proposition advanced above. I am not sure which version to believe and I have a reasonable doubt that the assault upstairs occurred, or, that it was not the result of a lawful attempt on the defendant's part to defend herself from a perceived attack.

[30] In terms of the assault with the knife, I do not believe the evidence of the complainant. I need not consider whether the defendant's evidence raises a reasonable doubt. However, if I were to consider the defendant's evidence, I would be inclined to believe that Ms. Wilton never picked up a knife or threatened the complainant in any way. I accept that the defendant did want the police to be called. She felt threatened by Mr. Wilton. He is larger, he got the better of her with the mattress and when he held her from behind. Ms. Wilton bit her husband to escape his grasp and she never held a knife to menace or harm the complainant.

Conclusion

[31] I have a reasonable doubt about what occurred during the first incident upstairs and I am not satisfied that the prosecution has met its high onus of proof for the assault count. That count is dismissed.

[32] With respect to the assault with the knife, I do not believe that this incident occurred. The complainant's evidence was not compelling and his behaviour contradicted what he says had just occurred.

[33] Accordingly, Iryna Wilton is acquitted of both counts.

Released: 14 January 2019

Justice G. Paul Renwick