Court File and Parties

Ontario Court of Justice

Date: 2020-12-21

Court File No.: Toronto 19-15005970

Between:

Her Majesty the Queen Respondent

— And —

Micah Shatsky Applicant

Before: Justice Patrice F. Band

Reasons for Judgment

Counsel

Ms. A. Samberg — counsel for the Crown

Mr. J. Struthers and Ms. A. Pinnock — counsel for Mr. Shatsky

BAND J.:

Introduction

[1] Mr. Micah Shatsky was charged with four counts of assault in relation to allegations made by his spouse Ms. Anna Davidenko. The incidents were said to have occurred between December 2018 and February 2019, at a time when their relationship was falling apart.

[2] The trial took place before me remotely, using Zoom, on consent. The only witness was Ms. Davidenko. Mr. Shatsky called no evidence.

[3] The Crown bears the burden of proving all allegations beyond a reasonable doubt. Mr. Shatsky bears no burden whatsoever. If I am left with a reasonable doubt on any of the counts, I must acquit Mr. Shatsky on that count. I am also mindful of the fact that the evidence bearing on each count must be analyzed in relation to that count only. Although some of the allegations are similar, the Crown did not make a similar act application. In other words, should I find Mr. Shatsky guilty of one or more counts, it is not open to me to use such a finding to support the Crown's case on any other count.

The Issues

[4] The central issue in this trial is Ms. Davidenko's reliability. It was put this way in submissions, when Mr. Struthers invited the Crown to limit her submissions to that topic. As the submissions developed, however, two additional issues materialized: consent and self-defence. It was clear to me that the defence's primary position is that a finding of guilt beyond a reasonable doubt cannot rest on Ms. Davidenko's evidence, which was frail in a number of respects. She was forgetful and her accounts were incomplete in material ways. The allegations were made when the relationship was breaking down and concerns as to the custody and access of their child were heading to family court where they currently remain unresolved. Ms. Davidenko bore an animus against Mr. Shatsky and she is of bad character insofar as it appears that she attempted to extort him by threatening to go to the police unless he gave her significant sums of money.

[5] With that said, I will begin with a brief overview of the evidence and the context in which the incidents are said to have occurred.

Background and Context

[6] Aside from some text messages between Mr. Shatsky and Ms. Davidenko, everything I have heard in this trial comes from Ms. Davidenko. I say this up front to make it clear that my explanation of the context and background is what I have heard from her. It is my view that this context will make it easier to understand the assault allegations and the disputed issues, which I discuss below.

[7] Ms. Davidenko is in her early thirties. She met Mr. Shatsky in 2011. The two lived together from 2013 to 2019. They were married in 2017, when she became pregnant. Their son Lucas was born that April. They separated in February 2019. They lived in a leased condo in Toronto.

[8] Mr. Shatsky and Ms. Davidenko were coproprietors of a business that sold exotic glass products, including bongs. She did not receive wages or direct income from that venture. She depended on Mr. Shatsky, who provided for the family. It appears that he did so, in part, by selling narcotics. They enjoyed a lavish lifestyle. He drove a Maserati, she a BMW X6.

[9] Ms. Davidenko explained that Mr. Shatsky abused her throughout the relationship. She came to see it as a normal feature of the life of couples. After the child was born, she became very concerned about the fact that Mr. Shatsky left Ziploc bags of cocaine where they could pose a danger to Lucas or to their cats and dogs. It became a central focus of their disputes. She would confront him and threaten to go to the police, he would get angry and assault her. He told her that if she went to the police, she would go to jail for possession of cocaine and Lucas would go into care of the CAS. She believed him, and so was only bluffing.

[10] In this way, the cocaine was the starting point of three of the four allegations before the court.

[11] In February 2019, after the fourth incident, at Mr. Shatsky's urging, Ms. Davidenko went to the Bahamas with Lucas to stay with her parents. She stayed for several months. While she was there, she found out that Mr. Shatsky had removed her belongings from the condo and placed them in storage. She feared that upon her return, she and her son would be homeless and without financial support. In the context of the abuse she had been experiencing, Mr. Shatsky's actions in her absence made her fearful of what else he might do to her upon her return.

[12] From the Bahamas, she called Toronto police to seek help regarding her belongings and the fact that it appeared that Mr. Shatsky was preventing her from returning to their home. The police advised her that the matters were civil in nature and that she should retain a lawyer.

[13] She felt thrown out like a dog, and she believed that because he had removed her things, she no longer had a right to reside in the condo.

[14] During that time, she also learned that Mr. Shatsky had been seeing another woman.

[15] She went to police in May 2019, after her return from the Bahamas, with the intention of obtaining a restraining order. She did so because Mr. Shatsky had threatened her, telling her it would be better for her if she did not return to Toronto.

[16] During that interview, she came forward with the allegations about the four assaults. She also explained that she had been abused for eight years.

The Four Alleged Assaults

[17] It is useful at this point to provide a basic account of the four alleged assaults.

First Incident

[18] The first incident occurred in early December 2018. Ms. Davidenko was at home with Lucas, who was 20 months old. She was cleaning the condo, as was her routine, when she found evidence of cocaine in Mr. Shatsky's office. She confronted him, and threatened to call police. They began to fight and argue. She remembers ending up on the floor with Mr. Shatsky on top of her. She weighed 130 lbs., he weighed 200 lbs. With his full weight on her, she had difficult breathing. He made her repeat what she had said – that is, that she would call police. He then put his elbow under her chin in a manner that made it even harder for her to breathe. Lucas came and tried to get into her arms. Mr. Shatsky broke her cell phone and left.

[19] She recalled bruising on her back and under her chin in the upper neck area. She did not recall any other injuries. She did not seek medical attention at that time. It was winter, she had no car or babysitter, and because she had been abused for eight years, she thought it was normal. "Couples fight" as she put it.

[20] She later took photos of the bruising and showed them to her doctor after a few weeks.

Second Incident

[21] The second incident took place a week or so later. As she was performing her daily cleaning routine, she found a ½ Ziploc bag of cocaine. She threw it into the bathroom sink and ran water over it so that police would not find it, arrest her and take Lucas from her. She phoned Mr. Shatsky to tell him what she had done and that she would go to the police. He came home and they started to argue. He was angry that she had wasted so much money. He pushed her around in the small bathroom; she pushed back. He then pushed her very hard, causing her to fall onto Lucas and the baby gate in the doorway. Her ribs were sore and Lucas was crying. She did not seek medical attention or take other steps. She was most concerned about Lucas and, again, felt like this was normal.

Third Incident

[22] The third incident occurred a week or so later, towards the end of December. It was similar to the first incident. After finding a quantity of cocaine, Ms. Davidenko phoned Mr. Shatsky to tell him to come remove it. She was not going to flush it this time, for fear of being beaten. But she told him she was going to call the police if it happened again. While she knew that he would beat her, she wanted to make her point. They argued and fought. She remembers being on the floor and trying to get him off of her. It was hard to breathe. She was pushing and scratching at his face. He got her thumb in her mouth and bit it. She was able to get up. When she tried to leave the condo, he bashed her head against the door. She managed to run out, but then returned to get Lucas.

[23] She said she suffered injuries: bruises on her thumb, upper lip and body. She took pictures two days later. They show bruising to her lip, cheek and thumb. They also show a yellowish bruise under her chin. They were admitted into evidence. She could not recall what part of the third incident caused the injuries to her mouth and cheek.

[24] On January 7, 2019, she went to the doctor for purposes of "making a report." Her mother had advised her to make sure something was on record, just in case. She did not go to police because she believed Mr. Shatsky that she, too, would be arrested and automatically taken to jail.

[25] In cross-examination, Mr. Struthers showed Ms. Davidenko two photos depicting scratches to Mr. Shatsky's face. She acknowledged that she had made those scratches.

Fourth Incident

[26] The fourth incident took place in February, just before Family Day. Ms. Davidenko invited Mr. Shatsky to go to Ripley's Aquarium with Lucas and her. She felt he was aggressive at the aquarium and decided that she did not want him to come up to the condo afterwards, for fear that he would beat her. In the car, they had an argument about a very negative Google or Yelp review she had made about their business.

[27] When they got to the underground parking lot of the condo, Mr. Shatsky carried Lucas towards the elevator area. Ms. Davidenko told Mr. Shatsky she did not want him to come upstairs because he was enraged. He pushed her and she hit her head against the wall. She then summoned the elevator and pressed "G" so that she could get off and tell security to save the surveillance videos. Video footage capturing the incident was admitted into evidence. Ms. Davidenko watched it in court, and confirmed that it depicted her trying to stop Mr. Shatsky from entering the door to the elevator area and the ensuing push. It also shows her pointing out the security camera to him. After that, Mr. Shatsky lets her take hold of Lucas.

[28] In cross-examination, she acknowledged that she had tried to grab Lucas from Mr. Shatsky before they went through the door.

[29] Ms. Davidenko testified that she was never a consenting participant in the physical violence.

Ms. Davidenko's Reliability and Credibility

[30] Ms. Davidenko's reliability is a central issue in this trial. I have strong concerns about it, as well as her credibility. Ms. Davidenko's memory of the way things happened in the first three incidents had significant gaps. She repeatedly explained that they were due to the passage of time and the fact that she had been in states of shock. With respect to the first incident, she testified that she was "starting to remember" and that it was "starting to become clear." She could not remember who said what or, more importantly, who made the first physical contact. She only remembered "certain parts." When pressed, she explained that she had been trying to suppress those memories.

[31] She made similar admissions as to her recall of the second incident, which took place in the small bathroom. She could not remember if she had been crowding Mr. Shatsky's space when he wanted to get out of the bathroom.

[32] She could not recall how she came to be on the floor during the first three incidents.

[33] In cross-examination, it was suggested to Ms. Davidenko that she had threatened to call the police on Mr. Shatsky if he did not pay her a sum of money. Ms. Davidenko agreed that she threatened to call the police, but she denied that it had anything to do with money. It was then that she was confronted with a series of text messages dated January 24 and April 24, 2019.

[34] The January 24 text included the following:

Ms. Davidenko:

I'll need 5000 to take to Bahamas.

I have cops to make u change ur mind.

My terms or jail.

My terms or jail.

[35] Then, in the texts dated April 24, after each accuses the other of bullying and various amounts of money are bandied about, the exchange includes the following:

Mr. Shatsky:

I made you a reasonable offer and you reply police

Ms. Davidenko:

Just wait what I have instore for you

I can't agree to ur offer without my lawyer.

[36] As Mr. Struthers pointed out, those text messages appear to constitute extortion. I note that during the cross-examination, Ms. Davidenko told the Court that the texts were taken out of context and left an unfair impression. She had hundreds and hundreds of Skype messages that would show that money was not the issue.

[37] The text messages were among hundreds of pages of communications that Ms. Davidenko had given to the Crown a few days before trial. These, in turn, were disclosed to the defence. The Crown did not seek at any stage of Ms. Davidenko's testimony to bring forward other electronic communications to attempt to rehabilitate her in any way. I was left to interpret them in the context of the evidence before me.

[38] If they amount to extortion, they are telling against her character. More importantly for the purposes of this trial, the texts seriously affect Ms. Davidenko's credibility. The January 24 text clearly contradicts her earlier testimony in a material way.

[39] I also had trouble believing that Ms. Davidenko had come to the conclusion over eight years that physical violence was normal between couples and that she believed that was the meaning of the expression "couples fight." Her testimony in relation to the third incident belied the notion that she had become inured to physical violence in such a way. She said: "I was crying because I was that woman I thought I'd never be." That statement speaks of someone who had known that couples could enjoy non-abusive relationships. In my view, the two states of mind that Ms. Davidenko described cannot coexist.

[40] Ms. Davidenko's evidence also demonstrated animus. The text messages clearly did so. So, too, did the following evidence.

[41] First, Ms. Davidenko testified in chief that Mr. Shatsky had put her belongings in storage while she was away in the Bahamas. However, in cross-examination, she admitted that Mr. Shatsky had first asked her whether he could bring them to her mother's house. Her evidence in-chief on this point was not completely truthful; what is more, it painted Mr. Shatsky in the worst possible light. Second, Ms. Davidenko's online review of their business was extremely negative. Yet, she denied that it was an attempt to destroy the business.

[42] The Crown acknowledged frailties in Ms. Davidenko's evidence, particularly in relation to the second incident.

[43] For all these reasons, I am unable to rely on Ms. Davidenko's testimony about the allegations where it is not corroborated in some way. It would be dangerous to convict Mr. Shatsky on her evidence alone.

Analysis Regarding the Allegations

Counts 1-3

[44] I have a reasonable doubt concerning the first three incidents. For the reasons I have explained, I do not have confidence that they were related to the court in a complete and reliable fashion sufficient to prove them beyond a reasonable doubt.

[45] I am left unable to find beyond a reasonable doubt that Ms. Davidenko did not consent to the first three physical fights or that Mr. Shatsky was not acting in his own defence. In saying that, I acknowledge that there are photos depicting injuries alleged to have been suffered during the third incident, as well as bruising from the first. They are concerning and give me pause – particularly the bruising and swelling to the thumb. But they are insufficient to make up for the frailties in her evidence. Mr. Shatsky is entitled to be found not guilty on Counts 1-3.

Count 4

[46] However, I take a different view of the fourth incident. The security footage is consistent with Ms. Davidenko's testimony and clearly depicts an assault. The video shows Ms. Davidenko standing in the doorway for over 10 seconds, facing outwards and apparently blocking Mr. Shatsky's way. According to her evidence in cross-examination, she attempted to take Lucas during that time. Mr. Shatsky then pushes her out of his way and enters the elevator area. The push is very hard, propelling Ms. Davidenko a few steps backwards and causing her to crash into the wall.

[47] Mr. Struthers argues that by trying to grab Lucas, Ms. Davidenko started the physical confrontation, thereby consenting to it. Had the gender roles been reversed, he submits, the matter would not be before the courts. He also argues that Ms. Davidenko's attempt to grab Lucas put the small child at risk of harm, that Mr. Shatsky's response was reasonable and that, therefore, the Crown has not negatived self-defence or defence of another beyond a reasonable doubt.

[48] I accept Ms. Davidenko's evidence that the two of them had been arguing in the car and that she had told Mr. Shatsky she did not want him to come upstairs. This is corroborated by her attempt to block him from going through the door to the elevator; I believe she did that to reinforce her point. I also believe that she was trying to get Lucas into her arms so that Mr. Shatsky would have no reason to accompany them upstairs.

[49] On the evidence before me, the notion that grabbing for the child was an act of consent to a physical fight has no air of reality. I am satisfied beyond a reasonable doubt that Ms. Davidenko did not consent to being pushed backwards in the way that I have seen and described.

[50] Further, I reject the notion that stereotypical gender roles are why Mr. Shatsky found himself charged by the police. But even if they were, my task is to apply the law to these facts in a gender-neutral fashion.

Self-Defence Analysis

[51] For the following reasons, I also find that the Crown has negatived self-defence beyond a reasonable doubt.

Section 34(1) of the Criminal Code reads as follows:

A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

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

[52] As the Court of Appeal for Ontario explained in R. v. Bengy, 2015 ONCA 397 at para. 28:

When the first two prerequisites of s. 34(1) are met – the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations.

[53] The Court of Appeal explained that none of the factors listed are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.

[54] In my view, the Crown has negatived the first two prongs of s. 34(1) beyond a reasonable doubt. There is no air of reality to any concern that Ms. Davidenko was threatening or using force against Mr. Shatsky in this instance. As for Lucas, it is evident that by trying to take hold of him, she intended to apply some force. But that type of force – one parent taking a child from the arms of the other – is not unusual. And I believe that from common experience, this can be done by an adult using one or both arms in these circumstances without subjecting the child to foreseeable risk. I reject the notion that it was out of concern for Lucas's safety that Mr. Shatsky pushed Ms. Davidenko away with the force that he did. There is no evidence in this case of any cause for concern in that regard and I am not left in a state of reasonable doubt about it. Also, I note that after Ms. Davidenko pointed to the security camera, Mr. Shatsky ultimately let her take Lucas.

[55] Even if I am wrong about that, I am satisfied beyond a reasonable doubt that Mr. Shatsky's response went well beyond what could have been reasonable in the circumstances.

[56] In all the circumstances, the nature of the force used – Ms. Davidenko's attempt to grab Lucas – was a minor matter. Given that she had what appeared to be a long coat draped over her right arm, I am inclined to believe that her attempt to grab Lucas was done with one arm. But little turns on that. Any risk associated with it – be it with one arm or two – related to the mere possibility that Lucas could fall. This risk, if it existed at all, was remote.

[57] It constituted an imminent albeit minor and momentary use of force regarding which Mr. Shatsky had a host of readily available options: he could have simply held the child firmly, put his arm up, backed up or turned away, among other things.

[58] Mr. Shatsky's role in the incident was that of a parent who was holding the couple's child and attempting to come upstairs when he had been told not to. It is clear on the evidence that Ms. Davidenko was Lucas's primary care-giver.

[59] Neither party used or threatened to use a weapon.

[60] There is a great difference in the size and physical capabilities of the parties. Mr. Shatsky weighed 70 lbs. more than Ms. Davidenko and was significantly more imposing in stature.

[61] The history between the parties clearly involved acrimony. Whether or not it involved the prior use of force or threat of force is a messy question. I have found Mr. Shatsky not guilty of the first three counts. Beyond that, there was evidence that the two of them threw objects at each other. However, there was no evidence that either of them was in any way abusive toward Lucas.

[62] As for a history of interaction or communication between them, again, there is evidence of acrimony and anger. The January text messages are a clear example.

[63] The push – which was very forceful – was completely disproportionate to Ms. Davidenko's attempt to grab Lucas.

[64] In the circumstances, I find that Ms. Davidenko's attempt to grab Lucas, her small child, was not unlawful. It is something that happens all the time between parents.

[65] For these reasons, I find that the Crown has proved the allegations supporting Count 4 beyond a reasonable doubt.

Conclusion

[66] I therefore find Mr. Shatsky not guilty of assaults as alleged in Counts 1-3, but guilty of assault as alleged in Count 4.

Released: December 21, 2020

Justice Patrice F. Band