Ontario Court of Justice
Date: 2021 03 02 Court File No.: Sudbury 19-1308, 19-1358 ad 19-1837
Between:
HER MAJESTY THE QUEEN
— AND —
DENIS SONIER
Before: Justice André L. Guay
Heard on: September 14, October 20 and December 17, 2020 Reasons for Judgment released on: March 2, 2021
Counsel: Brittany Butler, counsel for the Crown Jacob Gauthier, counsel for the accused Denis Sonier
GUAY J.:
1: Introduction
[1] The accused is charged with two counts of assault, two counts of mischief under and one count of breach of undertaking pursuant to ss. 266, 430(4) and 145(5.1) of the Criminal Code of Canada. The events underlying these charges occurred in the period between October 16, 2017 and April 2, 2019. The complainant was the accused’s common law spouse of twelve and one-half years. They have two children: Isaac (age 8) and Ezra (age 6).
[2] Notwithstanding the length of her relationship with the accused, the complainant would tell the court that only the first two months of it were good and that she had not left earlier because “there was just enough in it to keep me invested”. The accused seemed more invested in the relationship even though he himself told the court that “… there was a lot of conflict and especially toward the last few years, it was the most toxic and co-dependent relationship that could have existed, but two stubborn people just didn’t want to quit”.
2: Assault – 2017
[3] On or about April 1, 2019, the complainant called the Greater Sudbury Police to complain about the accused having assaulted her. In her testimony, however, the complainant candidly admit that what actually prompted her to complain to the police was not the accused’s assaultive behavior but the fact that the accused had left their home with the children twice in two days without her consent. From the evidence, it is reasonable to conclude that she was concerned about this because she had been informed by the accused that the Children’s Aid Society had concerns about leaving her alone with the children. The complainant may, then, have drawn the wrong conclusion about where events were leading with respect to a possible custody battle over the children.
[4] Questioned by the police about whether she had been abused by the accused in the past, the complainant disclosed to them that she had been the victim of two assaults and that the accused had on two other occasions deliberately broken items of property in the home. Both items had been purchased by the parties at very low cost through Kijiji.
[5] Alleging physical and emotional abuse by the accused since early in their relationship, the complainant initially neglected to tell the police about threatening the accused in the summer of 2018. Although she admitted to this court, and later to the police that she had threatened to kill the accused during that period, the police did not charge her with this offence.
[6] The complainant’s most serious complaint against the accused involved an incident which occurred on or about October 16, 2017. On that occasion, she alleged that she had been backhanded by the accused and sent flying into a nearby closet containing children’s clothing. The parties’ versions of what happened on this occasion varied greatly. I found that the complainant’s evidence describing what happened to cause this incident to occur was very poor. I found her evidence to be evasive in this and other matters before the court.
[7] In contrast, I found the accused provided a clearer and more credible picture of what had happened to the parties in the last few years of the relationship. The accused testified that on the evening this incident occurred, he heard their youngest child, Ezra, to whom he was very much attached, crying. He recalled going to Ezra’s room around 12:00 a.m. to console him when he heard him crying. He testified that after he entered Ezra’s room and picked him up, the complainant came at him “flailing” and “clawing”, attempting to take Ezra out of his arms. He said that he had had to struggle to get the complainant off himself, Ezra still being in his arms. He stated that in an attempt to get her away from his neck, he had unintentionally struck the complainant in the face with his forearm.
[8] There was evidence indicating that it was not unusual for the complainant to do laundry late in the evening. She, herself admitted to doing so. When doing so, she would turn on the lights of the room she was in, make a lot of noise, slam the door and in the case of the accused, leave the light on so as to cause him to awaken. The accused testified that on the night in question, she had done this every half hour between 8:00 p.m. and 12:00 a.m. This behaviour on the complainant’s part set the stage for what followed.
[9] The complainant had earlier that evening pressed the accused to help get Ezra to sleep so that she herself could get some sleep. The complainant testified that when he did fall asleep, she went into his room to be near him. Her earlier behaviour toward the accused had upset Ezra, awoken him and made him cry. When, according to the accused, he heard Ezra crying, he decided to go to his room to fetch him. As the door to Ezra’s room was shut, it is clear that he did not know that the complainant was with Ezra at the time. The accused testified that when he entered the room, he went to his bed and picked him up. At this point, he said, the complainant came at him trying to remove Ezra from his arms.
[10] I found the complainant’s evidence, in this particular matter, to be overly dramatic and unclear. One example of this was her evidence with respect to on which side of her face the accused allegedly struck her. I found the evidence about how the incident ended odd. According to the complainant, the incident ended by the accused backing out of the room, closing the door, she, going outside for a smoke.
[11] The accused appears to have had Ezra with him when he left his room. He testified that after he got back to the room in which he had been previously trying to sleep, he barricaded himself and Ezra in that room using a dresser and they went to sleep. While the complainant did not call the police, she took a picture of her reddened face the next day and sent it to her medical friend. The complainant admitted in cross-examination that she suffered from a serious skin condition which sometimes resulted in her having reddish marks on her face. This evidence made it difficult to ascertain the true impact of the blow she had allegedly received from the accused during the incident. Overall, I found the complainant’s evidence with respect to the alleged assault generally poor and lacking in the context that would have given it some credibility.
3: Assault – 2019
[12] The next serious complaint lodged by the complainant was with respect to the accused’s assault on her on or about January 2, 2019. This incident occurred at a time when the parties had been quarreling. Again, their versions about the altercation differed largely. The complainant alleged that at one point the accused got up from their bed and tried to “spill her” out of the bed by grabbing the mattress and trying to overturn it. In doing this, she stated, he threw two of several small pillows located on the bed at her. The complainant also alleged that on the same occasion, the accused damaged her cell phone beyond repair. She recalled that he had done this by throwing it against the bedroom wall. Once again, the complainant did not contact the police about this incident. In the morning, the parties made up and continued with their lives.
[13] In his version of what happened, the accused related how, after a disagreement between himself and the complainant, she came into the bedroom and tore the blankets off their bed. According to the accused, the complainant then “strong-armed” him, took her cell phone and began jabbing him with it four or five times. The cell phone was normally located on the night table on the right side of the bed, the complainant’s side of the bed. Early in this incident, the complainant found herself on the left side of the bed, presumably as a result of what the accused did. Somehow, during the fracas, the complainant was able to get herself back to her side of the bed. Here she got her cell phone and, according to the accused, started jabbing him with it.
[14] Responding to the complainant’s aggression, the accused testified, he was able to get the cell phone away from her. Having done so, he said, he then flung the cell phone away from himself in order to stop the complainant from further hurting him with it. It appears that when the cell phone hit one of the bedroom walls, it ricocheted off it and struck an adjoining wall. This left a small hole in each wall.
[15] Whatever the cause of the argument leading to this incident, the parties resumed their turbulent relationship the next day and forgave each other for what had happened or led up to it the previous night. In fact, the accused soon purchased a newer and improved Samsung 7 cell phone for the complainant. Of note, this was not the first cell phone the accused bought the complainant. This is not to say that he had broken the complainant’s other cell phones. It appears that the complainant had herself accidentally done so before.
[16] I found the accused’s evidence with respect to this alleged assault credible and more so than that of the complainant. His evidence, on which he was cross-examined, raised a reasonable doubt as to his culpability. Once again, I found the complainant’s evidence dramatic and less reliable.
4: Mischief Charges
[17] The accused was charged with two counts of mischief to items of family property. It is clear that these items, a plant holder and a children’s art easel, were damaged as a result of what the accused did. What is unclear, however, is how these items came to be damaged and, more pertinently, what the intention of the accused was in doing so. The evidence makes it clear that both items were damaged in an atmosphere of the latent tension which existed between the parties at the time.
[18] At the time the plant holder was damaged, the complainant was unhappy when the accused decided to leave the home on a business matter. According to the accused, the complainant blocked his exit from the house or at least made it difficult for him to leave. She wanted him to remain in order to help her water some of her 150 or so indoor plants but he was unwilling to do so. When the accused attempted to get past the complainant in order to leave the house, the computer bag he had strapped onto his shoulder caught the plant holder and knocked it over. The complainant who was nearby allegedly pushed the plant holder back as it was falling. The end result of this maneuvering was that the plant holder was damaged, even if not irreparably so.
[19] The parties differed on the degree of damage to the plant holder. Unfortunately, there was no photographic evidence to assist the court in assessing the damage. It is reasonable to infer that the complainant’s many plants on the floor near the closest exit path from the house made it even more difficult for the accused to leave the house. Taking all of the facts into consideration, I find that the accused’s version of what happened reasonable and consistent with an accidental damage to the plant holder. The accused’s explanation of what happened certainly raised a reasonable doubt about his alleged, criminal motivation in knocking over and damaging it.
[20] The events surrounding the damage to the children’s art easel are not dissimilar to the events respecting the damage to the plant holder. Once again, the events involved the accused attempting to leave the scene while carrying the documentation needed by him to prepare his accounts. Considering the material which the accused was obliged to carry as he removed himself from the presence of his upset spouse, I cannot find her allegation that he damaged the art easel by “punching” it credible. I find that the accused’s explanation respecting what happened consistent with accidental damage to the art easel. I find the complainant’s evidence that the accused “punched” the easel not credible and more in line with her dramatic description of the other events which occurred in this matter. If, as the accused testified, he was carrying a lot of documentation with him when moving to work elsewhere in the house, how could he have been able to punch anything? More than likely, he would have had to have used his foot to clear the easel from his path in an area of the house where a lot of other things were stored. The accused’s version of what happened to the art easel raises a reasonable doubt about his criminal intention in this incident.
5: Breach of Undertaking
[21] At the outset of the trial, the accused pled guilty to breaching his undertaking of April 1, 2019 not to communicate with the complainant. He testified that when did so, he was in a confused state of mind and did not fully appreciate that what he was doing was legally wrong. The e-mail he sent to the complainant was not a hostile one and, aside from seeking to attend at the family home to collect his personal effects, it canvassed the possibility of reconciling with the complainant. While still constituting an offence, the accused’s blameworthiness here was not of the highest order. That said, I am obliged to find him guilty of committing this offence.
6: Whole of the Evidence
[22] This was very much a “he said/she said” type of case. This does not mean that in such a case the decision to convict or acquit will depend on which conflicting evidence the trier of fact prefers. Nor should the trier of fact base his or her credibility finding on a witness’s mannerisms or behaviour in the courtroom. The third branch of the credibility assessment criteria noted in R v W(D), [1991]1 SCR 742, the “on the whole of the evidence” branch, suggests that the trier of fact should go further in assessing the evidence than simply weighing the evidence of each of two opposing parties.
[23] When we speak of “on the whole of the evidence”, we should be looking at the facts surrounding the parties’ specific allegations and recollections with respect to the matter at hand from a wider perspective. All too often, these are the facts which can and will assist the trial judge in making crucial findings of credibility. Such facts will directly and indirectly lend support to the credibility of the parties’ evidence.
[24] Take, for example, the accused’s allegation that prior to the alleged assault which occurred on or about October 16, 2017, the complainant came into the room where he had been trying to sleep every half hour between 8:00 p.m. and 12:00 a.m. and caused a disturbance in order to awaken him. This was done in an attempt to make him too tired to travel for work the next day. While not agreeing with the accused that she had done this every half-hour between 8:00 p.m. and 12:00 a.m., the complainant did, under cross-examination, concede that she had done so at least twice that evening. The accused testified that she was in the habit of doing this to him. Although she denied engaging in such behaviour, the complainant’s admission was corroborative of the accused’s evidence on this key point. She was angry with the accused on this occasion. It did not bother her, though, that her banging, shouting and door-slamming aimed at depriving the accused of his sleep, brought then three-year old son Ezra to tears.
[25] Again, with respect to the constant arguments which broke out between the parties, the complainant more than once described herself and the accused as “not being on the same page”. About what were they “not on the same page” to a degree that led to the constant conflict between them? The complainant was unwilling to offer any explanation as to why these arguments between her and the accused occurred and, in particular, those associated with the mischief charges and the alleged assaults against her. Most assault victims can and do provide that type of information to the police when they investigate an alleged assault. It appeared, however, that these arguments would become heated, with the complainant initially flying into a rage if she perceived that her interests were being violated. This anger was in evidence during the incidents giving rise to the charges before the court. The complainant would simply not admit to being responsible for any of the turmoil which occurred in the parties’ home.
[26] Recall that the complainant admitted little or no role in the episode leading to the accused’s alleged assault in January 2019. In her evidence, she portrayed herself as the victim whereas, in the end, the credible evidence indicates that it was she who crossed to the other side of the matrimonial bed to get hold of her cell phone which she then used to attack the accused. Her allegations were that the accused tried to overturn the mattress on which she had been sleeping and that he threw two small pillows at her. There was no allegation on her part that she had been attacked with an object of any kind or that the accused had physically struck her. Out of the blue, the accused is supposed to have initiated an attack on her for no apparent reason. Was she injured in this altercation? The accused was much larger physically than she was. Why would he have assaulted her with two small pillows?
7: Conclusion
[27] The evidence suggests that the complainant had difficulty coping with the stress of family life and its obligations. It appears that, for this reason, she regularly used marijuana to calm herself. A realization of the impact her stress had on the family may explain why she chose not to call the police when the events giving rise to the present charges occurred.
[28] I find that the complainant attempted to portray the accused as an abusive person, with herself being the victim. The evidence shows that it was usual for the accused to get their two young children up and about in the morning while the complainant tended to her rest. Is this the profile of an abusive man? Indeed, the evidence suggests that the accused was sympathetic to her needs right to the end of the relationship, including her need for sleep. One cannot say the same was true of the complainant.
[29] I find the evidence establishes that it was the complainant and not the accused who was at the heart of the dysfunction in the family home. The evidence with respect to the damage to the two pieces of furniture clearly illustrates that it was the provocative conduct of the complainant which set those events in motion. I find that it was the accused who was the person being abused in this situation. I conclude this, notwithstanding that the accused blamed both the complainant and himself for what had happened in their relationship. True, the accused may in his own mind have seen himself as codependent with the complainant for what was happening in their relationship, but he never gave up hope that he could bring his family through the constant turmoil which marked it.
[30] Because the accused has raised a reasonable doubt about his guilt in these matters and because the Crown has failed to prove beyond a reasonable doubt that he is guilty of the offences charged, I acquit him of the assault and mischief charges before this court.
Released: March 2, 2021 Signed: Justice André L. Guay