DATE: April 5, 2022 Information No.: 20-75000325-00

Ontario Court of Justice

HER MAJESTY THE QUEEN

v.

PER POLDERMAN

Proceedings

REMOTELY BEFORE THE HONOURABLE JUSTICE L. THOMAS

On April 5, 2022, for a TORONTO, Ontario proceeding

APPEARANCES: Vicki Hentz, Counsel for the Crown Coulson Mills, Counsel for Per Polderman

Reasons for Ruling

THOMAS, J. (Orally):

I do take it and I want to make it clear, Ms. Koh does not have representation, so I appreciate Ms. Hentz, as an officer of the court, and is relaying her concerns.

Some of the concerns that Ms. Koh notes is that Mr. Polderman would further track her. I do not know if she has moved since then, but her address was public to Mr. Polderman at the time of the events, both through him attending her building on a number of occasions but also through her own actions of sending him her unit number through a picture. I don't see how her name would create further tracking for him.

I appreciate again, Ms. Hentz, it's not your personal submission. It's the submission on behalf of the complainant but Ms. Koh also talks about her ex-husband and that was because her name comes up with her ex-husband in another case that has been published. Again, it too was a case of domestic violence and also a Family Law matter involving the name of her child. So that decision is public. So I do not see how a publication ban in this case is in the interest of justice given that her name and her child's name was published. I don't know if Ms. Koh's child's name was even mentioned in this court, and it certainly will not be mentioned in any judgment. It bears no purpose. In terms of Ms. Koh, I do not see why her name should not be mentioned. So in terms of a publication ban, I will order a ban for the sake of her child who is of absolutely no interest to this matter.

I will make a publication ban for only her child's name but not with respect to Ms. Koh.

...WHEREUPON PROCEEDINGS CONTINUED

Reasons for Judgment

THOMAS, J. (Orally):

Per Polderman and Mipha Koh are in their mid-forties. In 2014, the two met online but did not date until 2016/2017. They have never lived together. They each have a child from a previous relationship. Mr. Polderman lives in the same house as the mother of his child and his child, but they live separately within the home on different floors and co-parent amicably.

On January 18th, 2020, the two met at Pape Station. Mr. Polderman picked Ms. Koh up from the TTC subway station. During the ride, Ms. Koh stated that she wanted to end the relationship. She came to believe that she was "the other woman" in the relationship between Mr. Polderman and the mother of his child. She held this belief even though she attended his home and knew of the living situation between the former couple. Ms. Koh described the woman as Mr. Polderman's wife but that was never the case.

This belief that the relationship was not legitimate crystallized for her, it appears, in December 2019.

In early December 2019, Mr. Polderman forgot to celebrate her birthday. Ms. Koh became quite upset because she believed he took off time to celebrate his ex-girlfriend's birthday. Three weeks later, Mr. Polderman gave her gifts for her birthday. He signed the gift tag as "Forgetful P". When things soured, she returned the gift tag writing a derogatory term for Chinese persons in reference to his ex: "not forgetful. You did plenty to show your [C-word] princess for he[sic] birthday. You don't care".

At the end of December 2019, Ms. Koh sent an email to his office requesting disbursements for money she had spent on hotels with Mr. Polderman; however, she received an out-of-office message that he was away for the holidays. This caused her to be very angry as she believed he was spending the holidays with his ex and their son.

As such on New Year's Eve 2019 Ms. Koh sent angry text messages threating to expose him to his wife. After he did not respond, Ms. Koh sent a series of messages again accusing him of being too busy with his wife. Further, she threatened to expose him to his wife and her family.

On January 4, 2020, she sent another series of enraged text messages. She was offering an NDA not to disclose his secrets at this point. In cross, she could not recall what she was going to expose. She did not about any NDA and yet she wrote the term in her text messages. It is clear from the messages she believed he was married, and, in addition, the text messages demonstrated how enraged she was at the time.

Both described their relationship as toxic. Ms. Koh has said that it brought out the worst in her, causing her to be an extremely angry person and she reasoned this is partially why she used the derogatory term for Chinese persons with respect to Mr. Polderman's ex, who was of Taiwanese descent. Ms. Koh originates from Japan.

Mr. Polderman noted that the relationship would be good until there was a hiccup. He stated that Ms. Koh would have outbursts of rage but would calm down. Therefore when she brought up the NDA, he was unconcerned and unresponsive as he believed it would go away. It is in this context that the incident of January 18th comes about.

The two were parked in the front of her building; he in the driver seat, her in the passenger seat. Ms. Koh accused him of using her for casual encounters. She showed him photos of other men who had expressed interest in her through online dating sites. Mr. Polderman's response was to tell her that he was content if she pursued other relationships.

Ms. Koh stated she intentionally knocked off the Lego structure or structures on Mr. Polderman's dashboard. She knew the Lego broke but did not pay attention to where and how much of it broke. She testified that he grabbed her by the throat pushing her against the passenger window, but his hands did not constrict her breathing. He then let go and pretended to punch her a few times but did not make contact. She then exited the vehicle on her own. According to her, he had stopped the physical attack and then exited the car, throwing a sled that belonged to her from his trunk to the ground. It was then she called 911. Ms. Koh indicated she injured her finger when she knocked off the Lego. Detective Constable Mitchell attended the scene.

Detective Constable Mitchell testified that Ms. Koh was distraught and crying. She told the officer about the dynamics of the relationship in that Mr. Polderman was dishonest. She further explained the physical injuries and assault that had occurred. She was also upset that he neglected her birthday. Detective Constable Mitchell said that she was calmer when the SOCO photos were taken but she appeared to be crying in the pictures.

Mr. Polderman testified that Ms. Koh damaged the wire ear buds hanging from his front visor. Mr. Polderman testified from home and showed the damaged ear buds. One wired ear bud was ripped from the main piece.

He said that he made a sarcastic remark calling it classy and told her to get out of the vehicle. In response she threw four Lego structures at him causing them to break. These structures had some sentimental value as they were created by his son. She also managed to remove a wireless charger affixed to his car for two years.

Finally, he describes her as grabbing the collar of his coat causing damage to the inner lining and his zipper. He held a receipt, but it was not presented as evidence. His claim was that the items were repaired and that claim remained uncontradicted and unchallenged through cross-examination. According to him, he used his forearm to create distance, making contact below her neck. He denied that he ever touched her neck with his arms or any other part of his body. He said he was not scared for his life, but he was worried she might scratch him. Once the distance was created, he exited the car and pulled out the sled as Ms. Koh described. He told her again to get out of the vehicle. At this time he described Ms. Koh as partially out of the car. He told her she needed to go. Mr. Polderman stated that he opened the door more, he grabbed her jacket to get her out of the car and she was yelling at him saying she wanted her phone back. He told her he would get the phone and she was to stay out of the vehicle. Mr. Polderman then retrieved the phone. Ms. Koh then used the phone to call 911. Mr. Polderman told her she could not make false statements to 911 and he too called 911. He described the actions and the activities as very quick, and he further described it as one of the worst days of his life.

This is a credibility case where R. v. W.D., [1991] 1 SCR 742 applies. Therefore, I make a few points regarding what considerations I made in assessing the evidence.

The defence pointed out to the fact that Ms. Koh had been inconsistent in the past of reporting domestic violence incidents; see her case Veneris v. Veneris, [2015] ONCJ 49. The Crown submitted that there was no evidence called in that case, the judge summarized the proceedings and the reasons the Crown provided as to why the criminal charge was withdrawn with no reasonable prospect of conviction. I do not have various statements in that case to assess the reasonableness of the Crown's assertion. As such, I agree with the Crown in this case that a summary noted in that matter cannot be used to address the credibility of Ms. Koh in this case.

I find that Mr. Polderman's evidence does bring reasonable doubt as to whether he assaulted Ms. Koh. I find that there were times that he made assumptions such as whether he wore a scarf or not but otherwise, he was consistent and forthright in his evidence.

Further, he demonstrated supporting evidence to his version of events such as the picture of the Lego before it was damaged and the damaged ear buds. Additionally, when he stated his jacket was ripped by Ms. Koh, he was asked by the Crown when he repaired it. His response was to pull out a receipt and read the date. He was not challenged with respect to the receipt or its legitimacy, however he was cross-examined at length about the coat ripping and his testimony did not falter aside from whether he was wearing a scarf. I find that he did not exaggerate.

In response to a question about whether he was in fear for his life, Mr. Polderman stated that he was not because he was 50 pounds heavier than Ms. Koh. He stated that he assumed his arm made contact with her chest or armpit area based on their heights. He also testified that this was an assumption that he made because he could not see as it was in the dark and everything happened so quickly, but he was firm that he did not make contact with her neck. He told the 911 operator that he'd pushed her out of the car. This contradiction to his evidence was a concern for his credibility as submitted by the Crown. Mr. Polderman testified he pushed her away but not out of the car. Further, he testified he pulled her out of the vehicle after he exited. This appearance of contradiction does not detract from his evidence.

I did have concerns with Ms. Koh's evidence. When confronted about her text messages with Mr. Polderman, Ms. Koh initially stated she did not know what she meant by saying she would tell everything to his wife. Further, she could not recall mentioning him signing an NDA, yet she used the term in two text messages. As an example, "I suggest you show how fucking grateful you are for this NDA to be entered into to cover up your lies".

She stated there was no formal agreement, and she was using the term to indicate that she was promising not to tell someone something but not referring to any legal written agreement.

Ms. Koh testified that she was not in her right mind when she was writing the text messages. She described herself as desperate and looking for closure during the text messages and during that day. She indicated she was looking for closure whether it be from Mr. Polderman or his ex-girlfriend. It felt, according to Ms. Koh, that Mr. Polderman was replacing Ms. Koh with his ex but then Ms. Koh testified later that she wanted to help Mr. Polderman and the mother of his child solidify their relationship. I find this last statement simply incredible based on all of her actions.

Mr. Polderman told Ms. Koh that she could talk to his ex about their relationship therefore Ms. Koh reasoned that she was never really threatening Mr. Polderman when she texted a note to them December 31st, 2019:

"U can tell Ur wife I don't want u; I just want u two to know the truth and I deserve better than some Chinese leftover unfuckable piece of liar so I moved on :) just here to disclose what happened".

The other text message January 1st, 2020:

"Pick up Ur fucking phone to answer questions u lying sack of shit before I tell Ur Chinese wife"

and finally,

"I will notify everyone in her family and with your emails and photos too".

As previously noted, she continued on January 4th, 2020, to send threatening messages to him and mentioning this NDA that he should be grateful for. Ms. Koh described that she was in a toxic rage when she sent the text messages because she believed he had lied to her and was spending the holiday season, or going away, with his ex-girlfriend. She denied that she blackmailed him even though one of her messages read:

[As read]

"I suggest you read every single fucking word I send you so you don't miss what needs to be done for your ass to buy silence".

Furthermore, when she testified, she consistently mentioned that the mother of his child was indeed his wife, and she, Ms. Koh, was the other woman. It was clear she wanted to communicate this and wanted it to be a true fact, however there's no evidence that her beliefs were true. What became clear during her evidence is she remained consumed by this theory that he was married despite knowing his living arrangements and his denials of that claim.

She testified that she could not remember what was said that caused her to swipe the Lego off the dashboard. As well she could not recall damaging his other property such as his ear buds. These recollections or issues are problematic to the Crown's case. It may on one hand be reliability issues caused by trauma or intense anger, or alternatively she could have been attempting to minimize her actions for that day.

The arresting officer, Detective Constable Mitchell, noticed minor redness on her neck. He took photos of her neck that were so close that you can see each pore visible on her neck, however no redness was visible on her neck, though Ms. Koh did appear slightly flushed on her face in the pictures.

As per Detective Constable Mitchell, the redness was less pronounced at the time of the photos, however Detective Constable Mitchell testified the redness was still present when taking the photos. The photos do not support this assertion. In his notes, he made no mention of the redness of the photos contemporaneously to the injury on her finger, instead it was a late entry.

I cannot find that the redness was present at the time of the photos. If it was present before I cannot find it was a result of Mr. Polderman's actions, or alternatively of being flushed given that she appears to be flushed when upset.

Further, I find the injury on her finger inconsistent with the action she described as one swiping motion that dislodged the Lego structure or structures off the dashboard, however she herself could not be exactly aware of how she injured her finger, just that it was during that time.

I find that Ms. Koh was the aggressor in this situation. She was still in a toxic rage, as she described, and extremely jealous of the perceived ongoing intimate relationship with Mr. Polderman and the mother of his child. Unlike Ms. Koh, Mr. Polderman expressed indifference to continuing the relationship to Ms. Koh's threats to speak to his ex. His reaction caused her to be further enraged.

I find that she destroyed his earbuds and his coat. Further, Ms. Koh assaulted him with Lego structures by throwing them at Mr. Polderman when they were in the car, at times hitting his face, then she grabbed and pulled at his collar, as I said, causing damage. Mr. Polderman acted reasonably in self-defence by using his forearm to get him off her, but specifically her hands off his coat.

Under Section 35 there are four elements to be satisfied on a balance of probabilities for the defendant to avail himself of defence of property. This is important because the Crown has asked me to convict with respect to Mr. Polderman grabbing Ms. Koh by the jacket when she was partially in his car, as the Crown submits it was not a reasonable action given that the activities would have concluded by the time Mr. Polderman exited the vehicle, grabbed the sled, threw it down and then approached Ms. Koh at the passenger's seat.

The first element is that the defendant must believe on reasonable grounds that he is in peaceful possession of the property. There is no issue with this. Mr. Polderman satisfies this element as it was his car and the property in the vehicle were his belongings.

The second element is where the Crown notes concern, which is the defendant must believe that the other person is about to enter or is entering or has entered without being entitled by law to do so. Further, the person is about to damage or destroy property making it inoperative or is doing so. I accept his evidence when he testified "she was trying to get back into my car to do more damage". This belief was reasonable given her state of anger and her actions. The Crown submitted that he had time to assess the situation and no further damage was caused to his knowledge. However, Ms. Koh was still in a volatile state and therefore he could not be sure whether she would cause more damage or not.

The third element is that the act constituted was committed to prevent the person from entering the property or preventing the damage of the property. Mr. Polderman said he pulled her to prevent her from re-entering. He disagreed with the Crown that Ms. Koh was already out of the car, in fact he said that she was still partially in the car.

The fourth element is that the act was committed was reasonable circumstances. Mr. Polderman testified he grabbed Ms. Koh by the jacket. It was a swift action that required no more force than necessary. Ms. Koh made no mention of being pulled out of the car or sustaining any injuries from that action. When it comes to Mr. Polderman pulling Ms. Koh out of the car, I find that he was acting out of defence of his property and therefore his actions cannot constitute a criminal offence.

With respect to the count before the Court Mr. Polderman is acquitted of the charge.