Ontario Court of Justice
Date: 2023 08 18 Court File No.: Toronto 22-40005336
Between:
HIS MAJESTY THE KING
— AND —
LAJOS GABOR MAROSI
Before: Justice Christine Mainville
Heard on: July 12 and 13, 2023 Reasons for Judgment released on: August 18, 2023
Counsel: Geocelyne Meyers............................................................................. counsel for the Crown David Vago....................................................................................... counsel for the accused
Mainville J.:
[1] Renata Galamb and the accused, Lajos Marosi, have been married since 2014. They have two children together, currently aged 14 and 12. The couple had occasional brief separations after quarreling. They separated more formally for the first time in the summer of 2020, and after reuniting, they separated again in October of 2022.
[2] On June 8, 2020, Mr. Marosi was charged in respect of Ms. Galamb and was released the next day. Pursuant to his release order, he was not to “contact or communicate in any way either directly or indirectly, by any physical, electronic or other means” with Renata Galamb, except through a mutually agreeable third party regarding access to the children and support, or through counsel in family court proceedings or pursuant to a family court order.
[3] This release order was subsequently varied to include, amongst other amendments, the ability for Ms. Galamb to provide her written revocable consent to have contact with Mr. Marosi. Ms. Galamb provided this consent in July of 2021.
[4] After the couple again separated in October of 2022, Ms. Galamb continued to reside in what was previously the family residence with her sons and her mother, Andrasne Galamb. The residence was located at […] Grandravine Drive in Toronto. Mr. Marosi moved out and went to reside with his parents, taking limited belongings with him. The evidence is that he left behind his key to the residence on Grandravine Drive, though there was no formal handover of the key to Renata or Andrasne Galamb.
[5] Renata Galamb and Mr. Marosi informally agreed that he would have access to the children on every second weekend, and on other occasions after school when the children wanted to see their father. Ms. Galamb however wanted the children to sleep at her home on weekdays given that their school is nearby.
[6] Mr. Marosi is charged with having unlawfully entered the dwelling house at […] Grandravine Drive on November 29, 2022, and on that same occasion, with having assaulted Renata. He is also charged that he thereby failed to comply with the term of his release order that he not contact or communicate with Renata, “except with the prior written consent of Renata Galamb, which may be revoked orally at any time.”
[7] The Crown called Renata Galamb and her mother Andrasne to testify at trial. Mr. Marosi did not call a defence.
Facts
[8] Renata and her mother both testified that on November 29, 2022, the younger child, who I will refer to as N, was late returning home from school and that Renata imposed consequences on him as a result. He became very upset with this punishment and threw a prolonged fit. He spoke with his father on the phone and around 9 pm, N announced that he was going to go to his dad’s that night.
[9] Renata objected and told him he could not go that night as it was late and he had school the next day. N did not accept this and continued to talk to his dad on the phone. Renata told N there was no way she would allow him to leave. Renata informed Mr. Marosi over the phone that he could meet his son tomorrow. Mr. Marosi told her that if the child wanted to go to him, he could go.
[10] Approximately 10 to 15 minutes later, there was a loud bang or banging on the front door to the house. Very quickly thereafter, Mr. Marosi appeared at the balcony door and tried to get in.
[11] The house has a lower level that is above ground – another tenant resides there. Above that is a balcony. The balcony is above ground. Next to the balcony, at ground level which is below the balcony, is the front door to the home. From the ground level where the front door is located, a person can jump onto the balcony and thereby access the balcony door that grants access to the home. It is not seriously disputed that on this evening, Mr. Marosi did just that.
[12] Ms. Galamb testified, and I accept based on seeing a photo of the house filed as an exhibit in these proceedings, that the balcony door is not intended to be a proper entrance to the residence. It is meant to provide access to the balcony from inside the residence.
[13] Mr. Marosi is said to have jumped onto the balcony and tried to make his way into the house from the balcony door, as Andrasne Galamb – who was seated in her wheelchair just inside the balcony door, in the living room of the residence – tried to push the door shut. The two engaged in some altercation which ended with Andrasne Galamb falling onto the floor, out of her wheelchair.
[14] In the meantime, Renata had been looking for her phone in order to call 911. Once Mr. Marosi entered the house, she told him she would call the police right away, and that he could not take the child away from here. He grabbed Renata’s cell phone from her hand and ultimately went toward the front door of the residence. Renata followed him to retrieve her phone. He held it up so that she could not reach it. A struggle ensued. It is during the course of this struggle that Mr. Marosi is said to have assaulted Renata. The two boys – who had been in their bedroom during the initial events – came out and were crying, telling their parents to stop. The struggle ended when N began experiencing a panic attack, as he had in the past.
[15] The parents stopped and at this time, Mr. Marosi returned the cell phone to Renata, telling her “you need the phone, then here you are”. He then took N in his arms, and immediately left with the child without having him put on any shoes or a coat. The other son locked the door and persuaded his mom to leave them, so as to end the dispute. Renata called the police.
The Applicable Principles
[16] In a criminal trial, the accused person is presumed to be innocent. There is no obligation on the accused to do anything to establish his or her innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that the accused is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[17] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether that person was trying to tell the truth and whether the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as an honest witness may give unreliable evidence.
[18] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent (f) the witness’ demeanour while testifying.
[19] A trial judge is entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.
[20] The accused of course has no obligation to testify, and I cannot draw any adverse inference from his failure to do so.
General Credibility and Reliability Findings
[21] I found Ms. Renata Galamb to be a very credible and compelling witness.
[22] She testified in a clear and straightforward manner. She was responsive to the questions asked, doing her best to answer as precisely as possible when asked. She did not tend to overstate or embellish, and I find that – subject to some potential reliability issues to which I will return – she was always attempting to tell the truth as best as she could recall and recount it. She did not try to hide any facts.
[23] I also did not discern any particular animosity in respect of her former husband, beyond the general friction that accompanies the breakdown of a marriage. She conveyed a sense of fear and distrust of him but was fair in her testimony towards him, and fair when asked to attribute intentions to him, based on her perception of events. I did not discern any particular motive to fabricate accusations of this kind, including as it relates to custody of the children or any such other family dispute. I appreciate that the absence of evidence of a motive to fabricate is distinct from a proven absence of a motive to fabricate, and must be approached with caution in a credibility analysis: R. v. Bartholomew, 2019 ONCA 377, at paras. 20-28; R. v. G.B., 2021 ONCA 675, at para. 18.
[24] While I generally also found Andrasne Galamb to have testified in a compelling and credible manner, I believe that she may have – albeit on limited occasions – tried to better protect her daughter by embellishing events. I say this in respect of her assertion that Renata was slapped in the face, which is not something that Renata alleges occurred. I also believe that she may have embellished the injury she suffered as a result of her own altercation with Mr. Marosi.
[25] I need not, however, accept the entirety of Andrasne Galamb’s evidence to be certain, beyond a reasonable doubt, that Mr. Marosi unlawfully entered the house and assaulted Renata Galamb, and failed to comply with his release order.
Unlawful Entry in Dwelling
[26] In order to prove the actus reus of this offence, the Crown must prove that Mr. Marosi entered or was in the dwelling house without lawful excuse: Criminal Code, s. 349(1).
[27] The defence points to the fact that Mr. Marosi had been a lawful tenant of the residence for some period of time and that there was no evidence he had been removed from the lease agreement, nor that there had been any formal handover of his key to Renata or Andrasne Galamb. It also points to the fact that he had left and returned in the past upon the couple rekindling the relationship. Most of his belongings were also still at the house.
[28] I am satisfied that while Mr. Marosi remained on the lease agreement for […] Grandravine Drive, alongside Renata and Andrasne Galamb, he had moved out to reside with his parents, relinquishing authority over access to the property to the two of them. Even if this was a temporary arrangement, as argued by the defence, I do not accept that he had permission to enter the residence as he pleased.
[29] In fact, the evidence was that when he attended to pick up the children, he would not have contact with Renata and would pick them up outside in his car. I also find that if he had returned to retrieve the rest of his belongings, Renata would have allowed him to do so but he would have had to make arrangements for that to occur, and obtained her permission to enter the home for that purpose.
[30] I also do not accept the defence’s argument that, as had occurred in the past, Mr. Marosi would leave the house but subsequently return upon reuniting with Renata, such that he could return on this occasion. The fact that, upon being reunited with his wife, he would then be permitted back into the house, is not the same as returning as he pleases when no such reunification had occurred.
[31] The evidence, which I accept, is also that Mr. Marosi left his key behind. Even considering the possibility that he had another key – which, I note, he did not use on the evening in question – there was no suggestion that he had the right to use it to enter the house when he wanted. Rather, I accept that Renata and Andrasne were the ones with the authority to allow people inside the house at the time of the events, and Renata had made clear to Mr. Marosi that he could not pick up his child that night.
[32] I must therefore also reject counsel’s suggestion that Mr. Marosi was allowed in the house since the child wanted him there. The child had no authority over the house and its lawful occupants. Both Renata and her mother denied entry to Mr. Marosi.
[33] Of course, had a child opened the door and let a person into the home, it may be difficult to find that this person had the requisite intent to unlawfully be inside the dwelling. But that is not the situation here. Mr. Marosi came inside the home without any lawful excuse.
[34] The evidence was clear that upon attending the house, Mr. Marosi almost immediately went to the balcony door. This is not a normal entry-point for the house. The balcony is above ground and enclosed – it is not intended to permit ingress from the outside. Further, Mr. Marosi did not wait to be let in – rather, he entered by force. If he in fact had the right, as argued by the defence, to come and go from the residence as he pleased, one questions why he entered through the balcony, and pushed his way through as Andrasne was clearly trying to prevent him from entering.
[35] Renata’s evidence was that Mr. Marosi first banged on the front door to the house, something that her mother also testified to. Defence counsel suggested that Renata had not reported any banging on the front door to the police.
[36] If Mr. Marosi initially banged on the front door, I accept that this was done in an aggressive way and that he almost immediately jumped onto the balcony to attempt to enter through that door. In other words, he did not afford any time to the residents of the house to let him in before attempting to force his way in.
[37] If he did not first knock or bang on the front door, it is even more concerning that he simply attempted to force his way in through the balcony, without announcing his presence or otherwise attempting to be let in lawfully.
[38] I accept that Renata told Mr. Marosi that she would call the police and that he could not take the child. I also accept that Andrasne was trying to close the door on him and not let him in, and that he only managed to enter following a struggle with Andrasne Galamb.
[39] Even if there was no official arrangement in place in respect of access to the children, such that one could argue he had the right to see his son as much as Renata did, he had no right to forcefully enter Renata and Andrasne’s home against their will to achieve that purpose. I therefore find that he entered without lawful excuse.
[40] The Crown also has to prove the requisite mens rea, which is a dual intent: first, that Mr. Marosi intended to enter the dwelling, and second, that he had an accompanying intent to commit an indictable offence therein: R. v. Bus, 2020 BCCA 278, at para. 11; R. v. Nagy, [1988] 45 C.C.C. (3d) 350 (Ont. C.A.) at 355.
[41] There can be no doubt that Mr. Marosi had the intention to enter. He forcefully made his way into the home.
[42] Subsection 349(2) of the Criminal Code provides that, being in the dwelling without lawful excuse, and absent evidence to the contrary, I am to presume the secondary intention, that in entering or being in the dwelling, he intended to commit an indictable offence therein.
[43] “Evidence to the contrary” means “any evidence, in either the prosecution’s or the accused’s case, which is not disbelieved by the trier of fact and which gives rise to a reasonable doubt with respect to the existence of the intent to commit an indictable offence on the part of the accused”: Nagy, supra, at 357.
[44] As evidence to the contrary arising from the prosecution’s case, the defence points to indications that Mr. Marosi was there to attend to his child, suggesting that that was his sole intent. I accept that attending to his son N was certainly one of his intentions, perhaps even his main intent, but do not accept that that was his sole intent.
[45] In many cases, the Crown relies on the s. 349(2) presumption given the difficulty in proving the accused’s intent where no indictable offence has been committed. That is indeed the purpose of the “evidentiary assist”: it was intended to overcome “the practical difficulty of proving the secondary intent where there has been a breaking and entering without actual commission of an an indictable offence”: R. v. Bus, 2020 BCCA 278, at paras. 11 and 13. As described further below, that is not the case here: the accused did commit not one but two offences, once inside the residence.
[46] Mr. Marosi was under a no-contact order relating to Renata Galamb. As explained below, at the time of the events, he did not have Renata’s consent to enter the home and have direct contact with her, even if that contact related to the children. Moreover, Mr. Marosi’s actions inside the home included taking Renata’s cell phone and preventing her from seeking the assistance of the police. If Mr. Marosi’s sole intention was to attend to the child to support or comfort him, one questions why he would jump onto the balcony, enter by force in a manner that left the child’s wheelchair-bound grandmother on the floor, and engage in a dispute with his mother, thereby leading to the child becoming even more emotionally distressed.
[47] As set out below, I also find that Mr. Marosi assaulted Renata inside the residence.
[48] Even if I were not to rely on the offences ultimately committed inside the residence to conclude that Mr. Marosi had the requisite intent, I would find that the presumption applies. I do not believe the evidence to the contrary to be sufficient to raise a doubt that Mr. Marosi intended to commit an indictable offence inside the dwelling: it merely points to the fact of an additional intent, to retrieve or attend to his child.
[49] As described in Nagy, which considered the constitutionality of the presumption in then-section 307(2), Parliament’s goal was to protect property and other interests from invasion, but also to protect the security of persons: “It is a known fact that unlawful intrusions can lead to physical confrontations and so one of the protected interests is that of personal safety”: Nagy, supra, at 362. That is precisely what happened here: not one, but two physical confrontations. Mr. Marosi’s manner of entry, at night, belies any suggestion that his intent was merely an innocent one.
[50] I must therefore find Mr. Marosi guilty of having unlawfully entered into the dwelling.
Failure to Comply with Release Order
[51] As indicated above, at the time of these events, Mr. Marosi was bound by a term that he not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with Renata Galamb, except, inter alia, with the prior written consent of Renata Galamb, which may be revoked orally at any time.
[52] The focus of the defence’s submissions was on the ambiguity of any revocation of consent, following Renata having consented to contact in July of 2021.
[53] I start by making clear that I do not have any doubt that Mr. Marosi was aware of the release order and the above term, in particular given that Renata’s later consent is what permitted them from reuniting following the earlier charge against him.
[54] I accept that after the breakup in October of 2022, Renata made clear that she no longer wanted to communicate. She explained that she and Mr. Marosi spoke once on Messenger about access to the children, and after that they no longer communicated. He would pick up his children without having contact with her. She testified that she expressly told him she did not want to talk about anything with him.
[55] While there is a formal process in place to revoke a previously granted consent – which is only natural so that the authorities can be made aware of it, and the authorities can ascertain that the accused is also aware – it is not necessary for the revocation to formally be noted. Indeed, the term of the release order is itself that consent may be orally revoked at any time.
[56] I infer from the evidence that when the children went to see their father, just as occurred on November 29, 2022, communications relating to those visits would generally occur through the children. The children are indeed old enough to manage such communications with their father. It is apparent that there were at least some indirect communications between the parents through the children, and perhaps occasionally direct communication about the children, as there was on November 29, 2022. There was certainly no evidence that a third party had been mutually agreed upon for the purpose of discussing access to the children, as provided for by the release order.
[57] Regardless, while it may be that Mr. Marosi had Renata’s implicit consent to communicate indirectly and even directly with respect to the children, it is evident that she did not wish to have direct contact with him and the arrangements for access to the children were such that no such contact occurred. The parties avoided each other and Renata was adamant that she would not see him when he accessed the children. I find that he was thereby aware that this was her wish.
[58] When formally providing or revoking consent to communicate, there are typically several options presented to complainants relating to how or in what manner they wish to permit or not permit communication. Indeed, Exhibit 3 in these proceedings, which is the “Consent to Communicate” form signed by Renata, allows the complainant to allow communication for specific purposes only (such as to discuss issues related to property, medical emergencies, and the like), or when certain preconditions are present such as in the presence of a mutually agreeable third party, or in writing, or by phone.
[59] Given that consent may be revoked orally, I accept that consent may also be restricted – as opposed to entirely revoked – orally, in the same way it can be in writing. In other words, parameters can be put in place: it does not need to be an all or nothing proposition. I accept that in this case, there was some allowance made for the occasional communication in respect of the children.
[60] I am prepared to accept that some allowance could therefore have been made for contact on November 29, 2022, that would have fallen short of the offence provided for in s. 145(5)(a) of the Criminal Code. Had Mr. Marosi’s sole intention and sole actions been to attend to his child and retrieve him from the house, as argued by the defence, I could not have been satisfied that he was guilty of the offence charged in the circumstances of this case. For instance, I may have been left in some doubt that Mr. Marosi had the requisite level of mens rea to establish the offence had he merely come to the door to retrieve N, and had any communication been directed at whether N could leave with him or not. But there is no doubt that he went beyond the boundaries that had been established, and he did this knowingly.
[61] Renata told him over the phone that he could not take the child that evening. He nevertheless attended the house and after having entered it uninvited, unlawfully, and indeed forcibly, he proceeded to take Renata’s phone from her, preventing her access to it. She was thereby forced to engage with him not only to retrieve and defend her property (which conduct is justified, one should note, under s. 35 of the Criminal Code), but to seek help by calling the police. In interacting with her in respect of her phone, and interfering with her ability to call the police, Mr. Marosi clearly violated the agreed-upon terms of the no-contact condition in his release order. If there was any confusion in his mind about whether her consent to communicate had in fact been revoked earlier, there could not be any doubt that at that point in time, she did not want contact and she wished him to leave. By instead grabbing her phone and withholding it from her, I find that he clearly breached the term of his order not to have any contact with Renata Galamb, except with her written revocable consent.
[62] Indeed, if it was not clear to him before he arrived at the house, it was clear upon his entering that he was not welcome, he had to leave, and there was no consent to contact. Renata could orally revoke her consent at any time. The onus would then be on Mr. Marosi to depart and avoid contact and communication. He could not simply grab Renata’s phone and prevent her from using it. She demanded her phone back and was trying to call the police. Instead of returning the phone and leaving, he withheld it and maintained contact.
[63] I focus on the phone incident as it is the most obvious breach of the established no-contact boundaries, and sufficient to make out the offence charged. But to be sure, the breach in my view went beyond this interaction. Immediately before Mr. Marosi came over, Renata conveyed to him over the phone not to attend to pick up the child. When he arrived, he did not wait to be allowed in through the front door, but rather jumped onto the above-ground balcony and made his way in through the balcony door. Not only was he not invited in, but the door was pushed back in an effort to prevent him from entering. Upon entry, Renata tried to call the police, clearly because she did not want him there. I infer from the fact that he grabbed the phone from her, and all of the surrounding circumstances including the existing release order, that he knew this. I find that it was clear to him that she did not want him to be in or remain in the house, and that is why he took her phone. By being in and remaining in the dwelling, he was engaging in unwanted contact with her.
[64] Aside from later words exchanged when Mr. Marosi returned the phone to Renata, I do not have evidence of any specific words uttered to her. But if there is any doubt about it, contact that is not oral communication can constitute contact for the purpose of s. 145 of the Criminal Code.
[65] The condition made clear that he was not to contact her, including physically or by any other means. As explained by Justice Hill in R. v. J.F., 2001 O.J. No. 2054 (S.C.J.), at para. 24, the term “contact” may include “intrusion into the privacy of another person, a disruption of individual security, for example by sending an item to an individual or acquiring physical proximity to another person in such a way for that presence to become known to the other person, even though in each example it may be said that there is no overt communicative aspect to the conduct.” That is because, as he further notes, the objective of a no contact term is to protect those said to be victims of crime, where, “[e]specially in instances of sexual or domestic violence, the sight or sound of the alleged perpetrator can evoke feelings of terror, insecurity, re-invasion of privacy, and mistrust of the criminal justice system’s resolve to protect those who report crimes. Communications and physically proximate attendances, whether innocuous from the accused’s perspective, frequently generate adverse experiences for those who are in fact victims of crime”: J.F., supra, at para. 28.
[66] The defence argues that there was no evidence Renata told him to leave the home that night or that she did not want to communicate with him. Rather, counsel argued that she was effectively preventing him from leaving, given that she would not let him leave without first getting her phone back.
[67] Given the circumstances in which Mr. Marosi became an intruder in the home, in an aggressive way and at night, forcefully making his way through the balcony door, and how he proceeded to grab Renata’s phone from her – a phone to which he had no right – I could not possibly find that Renata was welcoming this contact and had permitted it, or that she was in some way inviting it. She was entitled to demand that he return her phone, and that in no way could suggest to him or anyone else that he should remain in the residence and have contact with her. She wanted to call the police to report him and get help, and was trying to obtain her phone in order to do so. Clearly, she did not want contact with him, and he knew it.
[68] If there was any doubt about that, it would disappear when one considers that his contact with Renata at that moment was clearly to prevent her from calling the police. I find that this was because he knew he was acting unlawfully.
[69] As the Supreme Court of Canada decided in R. v. Zora, 2020 SCC 14, the intent requirement for breaching a term of a release order is subjective. In addition to the requirement of proving that the accused had knowledge of the conditions of the bail order or was wilfully blind to them, subjective mens rea under s. 145(3) can be satisfied where the Crown proves that:
The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or
The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct. (Zora, supra, at para. 109.)
[70] The second component of the mens rea can thus be met by showing that the accused was reckless. As explained in Zora, at para. 117, the accused must “be aware of the risk that the factual circumstances requiring them to act (or refrain from acting) to comply with their bail conditions could arise and continue with their course of conduct despite this risk.” Recklessness is a subjective standard and the accused “must be aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions”: Zora, supra, at para. 118.
[71] On November 29, 2022, Mr. Marosi was at minimum reckless in having contact with Renata despite his no-contact condition and the surrounding terms. His conduct that night cannot be described as anything but. He took away Renata’s phone as she tried to call the police and withheld it from her. He was no doubt aware that his conduct created a substantial and unjustified risk of non-compliance with his release order that he could have readily avoided. He is therefore guilty of the offence charged.
Assault
[72] I accept Renata’s evidence that in the course of struggling with Mr. Marosi over her phone, he grabbed, pulled and pushed her, and thereby intentionally applied force to her. Counsel for the defence urges me to find that the struggle or grappling was consensual, akin to a consensual fight pursuant to the principles laid out in R. v. Jobidon, [1991] 2 S.C.R. 714.
[73] While the struggle was a mutual one, I do not accept that Mr. Marosi can rely on the defence of consensual fighting in circumstances where he was an intruder in the home, at night, having climbed into the house, uninvited and unwelcome, and then forcefully took away Renata’s phone in order to prevent her from calling for help. He had no right to that cell phone, or to prevent her from calling for assistance. She was not consenting to a fight: she was defending her property. Under s. 35 of the Criminal Code, Renata could take reasonable actions to prevent him from stealing or damaging her property, which is what she did.
[74] The evidence, which I accept, is that Mr. Marosi had previously broken the landline of the residence and cell phones related to Renata and her mother.
[75] In the circumstances, it was entirely justified for Renata to try to get her phone back, in order to call the police. Again, this does not mean that she is engaging in a consensual fight. She did not want any fight or contact with Mr. Marosi – she wanted him to give her phone back.
[76] I cannot reasonably find, given all the circumstances of this struggle, that this was in any way consensual.
[77] Nor can I find, in the alternative, that he was acting in self-defence pursuant to s. 34(1) of the Criminal Code. This defence requires that the act committed be reasonable in the circumstances. In making this determination, section 34(1)(2) requires me to consider “the relevant circumstances of the person, the other parties and the act, including, but not limited to” such factors as whether there were other means available to respond; the person’s role in the incident; the size, age, gender and physical capabilities of the parties to the incident; the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; any history of interaction or communication between the parties to the incident; and whether the act committed was in response to a use or threat of force that the person knew was lawful.
[78] Suffice it to say that Mr. Marosi, who is both taller and stronger than Renata, had other options available to avoid a physical altercation. He could have simply returned her phone. Indeed, this is how the struggle in fact ended. He was also the aggressor, having unlawfully come into her home, through the balcony, and grabbed her phone from her. He knew that Renata was trying to get her phone back to call the police, because she told him as much. He cannot in these circumstances reasonably claim self-defence.
[79] The defence argues that there were inconsistencies in Renata’s various accounts of the events, and as between her account and that of her mother. I found the two accounts to be largely corroborative of each other. They generally corroborate each other on the central points, as well on various smaller details such as the fact that the eldest son helped Andrasne up from the floor, that he locked the door after Mr. Marosi and N exited, and that N’s panic attack is what led to the end of the struggle between Mr. Marosi and Renata.
[80] I am not troubled by the bulk of the discrepancies that were pointed to by the defence. For instance, I am not troubled by the fact that Andrasne stated in cross-examination that after entering the house, Mr. Marosi made his way to the kids’ bedroom, whereas Renata made no mention of this occurrence. She was not specifically asked about it and her account was clear that everything happened very quickly. Andrasne’s evidence confirms that this part of the events was very quick: she stated that Mr. Marosi ran into the children’s room and came back out, that “it took like a second”, “the whole thing took 10 to 15 seconds”. She explained that she saw him run into the room quickly, then back out, screaming “like a rabid dog”, and her daughter wanted to call 911 but he took her phone. It is apparent to me that this occurred during a fast-paced sequence of events as Renata was following him, endeavouring to get help by calling 911.
[81] The only real issue of significance, to me, as it relates to Renata’s account of events, was the fact that she on occasion recounted what her mother had told her or conveyed to the police in her presence, or what she inferred from what she did witness, without making clear that this was her mother’s version of events or an inference she was drawing – not events that she actually witnessed herself. Specifically, this occurred in relation to how Mr. Marosi entered the house, who grabbed onto who first as between her mother and him, and how her mother came to be on the ground.
[82] Renata initially described how Mr. Marosi entered the house and indicated she had witnessed this. In cross-examination, she explained what she did and did not witness in respect of Mr. Marosi’s entry, acknowledging that she did not see him enter and that her mother was better placed to explain how that transpired.
[83] When asked, Renata also indicated it was Mr. Marosi who grabbed onto her mother first, later acknowledging she inferred this from the fact that he was the intruder and thus the aggressor.
[84] Finally, while she was always consistent in her testimony at trial that she did not see how her mother came to be on the floor – that she saw the two struggling one minute, and the next she looked back and her mother was on the ground – she acknowledged that when the police asked if Mr. Marosi had pulled her mother to the floor, she had said yes. She explained that she had then added that her mother “came to be on the floor”, and that she agreed with the police because she inferred from what happened that he had pulled her down.
[85] This raises concerns as to whether I can rely on Renata’s evidence as being reliable, irrespective of what I accept is her desire to tell the truth and not mislead.
[86] However, when challenged on having stated something that she inferred without having made clear that it was an inference, she candidly acknowledged the inference and clarified her answers. This occurred in respect of who grabbed who first, as between Mr. Marosi and her mother, and Mr. Marosi pulling her mother to the floor. She acknowledged without hesitation the inaccuracies in her earlier statements to the police.
[87] Similarly, when asked specifically what she had a first-hand account of or not, Renata readily gave precise answers and distinguished between the two. While she also initially drew inferences and partly relied on her mother’s account of Mr. Marosi’s entry into the house, I also attribute her differing accounts of whether or not she in fact witnessed this to the fact that she saw parts of Mr. Marosi’s entry and parts of the struggle with her mom. She explained that she was also trying to locate her phone at the same time and call the police. She was frightened, as was her mother, and everything happened fast. The entry into the home involved a somewhat prolonged struggle with the door, and as between Andrasne and Mr. Marosi. Renata explained that she partially witnessed the struggle between the two, and she described that the first thing she saw was her mom pushing the door back, and Mr. Marosi pushing the door toward the inside. I accept that she witnessed these things, without witnessing the entirety of the entry and how the struggle unfolded. I therefore do not think there is any true inconsistency on this point or that she was dishonest about seeing part of the events relating to Mr. Marosi’s entry into the home.
[88] In addition, to be fair to her, Renata did, when asked about events surrounding the initial entry into the home, occasionally indicate that her mother was the best person to ask about that. For instance, she acknowledged that things happened so quickly so she did not know whether the door was open or closed when Mr. Marosi jumped onto the balcony, and that she was going based on what her mom said. When the distinction was made between what she saw and what she learned from her mom, she was careful to make the distinction.
[89] In any event, these reliability concerns only relate to the initial interaction between Andrasne and Mr. Marosi. They do not apply to the later assault and her own interaction with Mr. Marosi that night. Indeed, Renata would of course have a first-hand account of the struggle she was herself involved in. I am not concerned that there is any risk of tainting or that her evidence is otherwise unreliable on this point. And I have already found her to be a witness who is credible, who was at all times telling the truth as best as she could recall it and describe it, given how quickly the events unfolded. I therefore accept her evidence in relation to how the struggle unfolded.
[90] On the point about her hair being pulled or grabbed, Renata described this occurring as Mr. Marosi was grabbing her or pulling her away by her shoulder. I cannot find beyond a reasonable doubt that pulling her hair, as described, was necessarily intentional.
[91] Nevertheless, I am satisfied beyond any doubt that Mr. Marosi assaulted Renata by grabbing, pulling and pushing her, and that there is no defence available to him on these facts. He is therefore guilty of assault.
Conclusion
[92] The accused is found guilty on all counts.
Released: August 18, 2023 Signed: Justice Mainville