ONTARIO COURT OF JUSTICE
DATE: 2025-04-09
COURT FILE No.: 23-48118181
Toronto Region
BETWEEN:
His Majesty the King
— AND —
Joseph Herrington
Before Justice Cidalia C.G. Faria
Heard on November 25, 2024 and January 23, 2025
Oral Reasons April 7, 2025
Written Reasons for Judgment released on April 9, 2025
Ellen An — counsel for the Crown
Marcus Bornfreund — counsel for the defendant Joseph Herrington
Faria J.:
I. Introduction
[1] Joseph Herrington is charged with assaulting his intimate partner on September 24, 2023, contrary to s. 266 of the Criminal Code.
[2] The Crown called the complainant, Janice Wu, and a neighbour, Christopher French. Mr. Herrington testified in his own defence.
[3] The central issue is the credibility and reliability of each witness.
II. Legal Principles
[4] As in every criminal case, Mr. Herrington is presumed innocent. The burden is on the Crown to prove each element of the charge beyond a reasonable doubt. The burden never shifts. Reasonable doubt is based on reason and common sense from the evidence or lack of evidence. It is higher than a balance of probabilities, yet less than proof to an absolute certainty. R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 14.
[5] When considering the credibility and reliability of a witness, I may accept some, none, or all, of a witness’ evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented.” R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para. 27.
[6] As Mr. Herrington testified in his defence, the applicable analytical framework is that of W.(D.). R. v. W. (D.), [1991] 1 SCR 742:
i. If I accept the evidence of Mr. Herrington, I must acquit him.
ii. Even if I do not accept the evidence of Mr. Herrington, if his evidence raises a reasonable doubt, I must acquit him.
iii. Even if I do not accept the evidence of Mr. Herrington, nor does it raise a reasonable doubt, on the totality of the evidence I do accept, I must be satisfied beyond a reasonable doubt the Crown has proven every element of the offence.
III. Position of the Parties
[7] The Crown submits the evidence of Ms. Wu was reliable and credible, and should be accepted, and that the evidence of Mr. Herrington was neither reliable nor credible and should be rejected. In support of her position that the Crown has proven the charge beyond a reasonable doubt, she points to Ms. Wu’s candid, clear and direct testimony that is supported by Mr. French’s evidence, and the implausibility of Mr. Herrington’s testimony.
[8] Counsel for Mr. Herrington submits the parties had a hostile relationship at the time. Their verbal dispute became a tussle over keys, and the court should accept Mr. Herrington’s denial that he made any physical contact with Ms. Wu, other than in a de minimis manner. In support of his position, he submits Ms. Wu was inconsistent, and Mr. French’s evidence does not support her evidence. He submits the Crown has not proven the charge beyond a reasonable doubt.
IV. Summary of Evidence
[9] The allegation of the assault occurred over a very short period in the kitchen of the family home. Ms. Wu testified Mr. Herrington swung at her with a closed fist but made no contact. He kicked at her and made no contact. He then lunged at her and grabbed at her trying to get the keys from her. She tried to push him off but could not. The assault was interrupted by a neighbour knocking on the door.
[10] However, Ms. Wu and Mr. Herrington provided a narrative of that entire afternoon, and the neighbour, Mr. French, testified to what he heard and what he did that led to his 911 call.
[11] To ascertain the credibility and reliability of each witness, a summary of the details of their narratives is necessary.
Janice Wu
[12] Ms. Wu testified she had been partners with Mr. Herrington since 2005. They have three children together, ages 13, 9, and 7. At the time of the allegation, they were all living together on Alton Ave. in Toronto.
[13] On that Sunday, their eldest daughter was at a sleep over. Ms. Wu, Mr. Herrington, and their children were invited, likely that morning, to stay for dinner at the friend’s house when they picked up their daughter that afternoon.
[14] Ms. Wu testified things were “volatile” between her and Mr. Herrington that afternoon around 2:00 to 3:00 p.m. when they got into the family mini van to go pick up their daughter. They had to go pick up dessert and wine first before going to the friend’s place. Mr. Herrington did not want to go dinner.
[15] Ms. Wu drove with the two children in the backseat and Mr. Herrington in the passenger seat to Spaccio, a restaurant owned by Terroni’s on Sackville at King St. She testified that while she drove, Mr. Herrington yelled at her for having low gas as the gas light was on. She was “very stressed, and very anxious and white knuckling it all the way over.” She was nervous, distracted and became very quiet as Mr. Herrington continued to scream at her while the children were in the backseat.
[16] When Ms. Wu pulled up to the restaurant and parallel parked, Mr. Herrington yelled at her again for parking too far from the curb and made condescending remarks. She thought they were similar to what he usually said to her, such as “nobody does this” or that she is “stupid”. He was loud and intense. She managed to park and then Mr. Herrington got out of the car quickly and slammed the door so hard, it shook the car. He stormed into the restaurant.
[17] In the restaurant, Ms. Wu testified that Mr. Herrington was swearing he did not “fucking care” what dessert to pick, saying “I don’t want to fucking go anywhere with you” amongst other things. When they got back in the car, Ms. Wu drove toward their home to drop Mr. Herrington off as he did not want to go to dinner.
[18] Ms. Wu testified that once again as she parallel parked in front of their home, Mr. Herrington yelled at her. He turned off the van, took her purse with her car keys, her house keys, her cellphone, her wallet, her identification, “everything” from the console, and went into the house. She told the children to stay in the car. She wanted them to be “safe and out of the house.” She then followed Mr. Herrington into the house to get her keys and take the children to dinner.
[19] Once inside the home, Ms. Wu testified she grabbed Mr. Herrington’s set of keys from a key bowl, which contained a key to the van. Mr. Herrington screamed at her to give him his keys. She responded that she would if she got her own keys and her purse back. Mr. Herrington responded with “or what?”. She testified Mr. Herrington was screaming in her face, standing over top of her, and intimidating her. Mr. Herrington is 6’5” and Ms. Wu is 5’2”. She felt “panicked, stressed, on edge and scared.”
[20] Ms. Wu testified Mr. Herrington went to grab the keys out of her hand, they were struggling, and she tried to push him off her. They separated. He lunged at her with a closed fist and gestured as if he was going to punch her. He paced back and forth. She had the keys in her pocket, and he tried to pull them out a second time. During the altercation Mr. Herrington kicked “the air but close enough that, you know, I would be intimidated”, his foot was chest height, about a foot away. Mr. Herrington forcefully grabbed her left arm, and she could not get him off her, and could not get away.
[21] Ms. Wu described Mr. Herrington’s jaw as clenched, his eyes beading out of his head, he was enraged, with a red face, screaming with his fists clenched. She was terrified.
[22] Ms. Wu testified she tried to be calm, but she was loud. She told Mr. Herrington she wanted her keys and wanted to get out of there. She repeated “get off me, get off me.” She believed she was “pretty loud and pretty forceful” when she heard loud knocking on the front door which “which stopped the whole thing.” Mr. Herrington released Ms. Wu, and they both went to the front door.
[23] Their neighbour, Chris French was at door. Ms. Wu testified Mr. French told Mr. Herrington to leave the house, but he did not. She testified she went next door to Chris and Brenda’s house. She could not recall if Chris had already called the police or was going to. Ms. Wu’s two younger children were still in the van, and she asked they be brought over. Ms. Wu testified she was “shaken, scared, angry.”
[24] She recalls calling the family friend to say they were not coming for dinner, and asking if her daughter could sleep there another night. The police came, Mr. Herrington was taken away and she gave a statement to police.
[25] Ms. Wu testified that the events in the house took about 15-20 minutes, on the main floor, which is open concept, and about 25 feet long. They have a 10-foot island in the kitchen at the back of the house around which they circled both the first time and the second time Mr. Herrington grabbed Ms. Wu.
[26] In cross-examination, Ms. Wu testified:
- It was common for Mr. Herrington to raise his voice at her. Mr. Herrington’s behaviour was not new, and it had been going on for hours before the altercation in the kitchen. She usually became quiet and frozen, but when pushed, she responded and was loud too. She never initiated physical contact, but did strike Mr. Herrington before in self-defence, and has thrown things, though never at him.
- On this occasion, she did not yell back at Mr. Herrington in the car.
- She agreed she got the restaurant incorrect; it was not Terroni’s on Queen St., it was Spaccio, owned by Terroni’s on Sackville at King St.
- It was Mr. Herrington’s suggestion to be dropped off at home, not hers.
- Mr. Herrington reached over, and pushed the button to turn off the car before he took her purse into the house.
- On this occasion, she did raise her hands and did try to push Mr. Herrington off her. She did get worn down, and she did raise her voice.
- She agreed she was incorrect when she testified, she did not have keys in her hand when she pushed and struck Mr. Herrington, as in her video statement she told police she did.
- She was unable to leave the house as Mr. Herrington impeded her.
- It was possible Mr. French told her to leave the house and not Mr. Herrington.
- It was possible Mr. French asked her if she wanted to call someone.
- It was possible the altercation inside the home was only 2 to 3 or 5 minutes and not the 15 to 20 minutes she thought.
- It was possible the police did not arrive right away, but instead took 45 minutes.
- She had no idea about the timeline, or how long she was anywhere, as it was “very heightened and stressful.”
[27] Ms. Wu disagreed she drove to the restaurant to pick up ingredients for Mr. Herrington to make dinner. She did not recall getting a call when she was driving that changed their plans. She disagreed that she followed Mr. Herrington into the home to provoke him, give him a piece of her mind, and initiate a physical fight.
Christopher French
[28] Mr. French, the next-door neighbour, testified he was working in his backyard that Sunday afternoon about 40 feet away from the Herrington and Wu kitchen window. There is no fence between the two lots and his backyard is open concept. He was sitting in his cabana which opens to the back of the Herrington/Wu home, with the television on. He was working on emails when he heard Mr. Herrington and Ms. Wu arguing.
[29] He turned down the television and heard they were arguing about keys. He heard Ms. Wu say “gimme the keys” and “I need to go.” Their voices were tense, and Mr. Herrington’s was lower and angrier though he could not hear all the words they were saying. He estimated he listened for about 15-20 seconds. [Mr. French was not asked how long he heard the argument before he turned down the television to listen.]
[30] Mr. French then heard a thump and a female voice scream. He ran to their front door and banged on it loudly. Ms. Wu opened the door, and he could see Mr. Herrington, about 8 feet behind her. Mr. French described Ms. Wu as upset and distraught. Mr. French asked if she needed to call someone, and Mr. Herrington appeared to be pleading with her and saying “no.” Mr. French was unclear if he had already called 911 at that point and was on hold, or he had not called 911 yet.
[31] Mr. French testified that Ms. Wu went to his home, and the children joined her shortly after. He estimated the wait for the police to be about half an hour.
Joseph Herrington
[32] Mr. Herrington testified that on that Sunday afternoon, he got into Ms. Wu’s family mini van with their two younger children to go pick up groceries for a pasta dish he wanted to make for the family.
[33] On the drive there, Ms. Wu shifted into reverse while moving forward which “frustrated” and “scared” him because she was damaging the transmission of the car.
[34] Once inside the store, Mr. Herrington testified Ms. Wu took a call from the parents of the friend where their eldest daughter was sleeping over and accepted a dinner invitation. That was “frustrating” because he was shopping for a “special dinner”. He was “disgruntled” as he now had to add a dessert and wine for the dinner party to his ingredient shopping.
[35] Mr. Herrington testified he was not “especially interested” in going to dinner as he had planned on making his pasta dish. Both he and Ms. Wu got back into the van and Ms. Wu drove to their home. Again, Mr. Herrington testified, Ms. Wu put the car in reverse while still moving forward. He testified this was “like a provocation”. He asked her why she did that again, stating “didn’t we just talk about this?” He did not remember if Ms. Wu replied.
[36] Mr. Herrington testified that he did not have his keys to the house so he picked up Ms. Wu’s “pouch” with her keys and the groceries and he entered the house. He put the groceries on the counter, and Ms. Wu came in without the children. He asked her why she left them in the car as this is not “normal” behaviour. Ms. Wu said, “they don’t need to see this.”
[37] Mr. Herrington testified he was surprised by this answer. He “braced” himself for some sort of interaction, and so he took Ms. Wu’s purse and “put it as far away from where he was standing as he could.” He testified she was agitated, and “presumably she was looking for keys to go to dinner herself or us” though he “preferred she not drive” and “somehow she got my keys and my house keys.” He did not recall if he had her keys or if they were in her purse. He had reached for the keys in a key bowl, but Ms. Wu “tore the keys out” of his hand.
[38] Mr. Herrington remembers Ms. Wu had her keys in her left hand in her pocket and he “tried to get the keys from her pocket”, but he did not reach into her pocket, or grab her. He just asked for his keys back. He testified that Ms. Wu had both sets of keys. He was asking for his keys and does not remember if she was asking for hers. Then the next thing he recalls was banging on the door.
[39] Mr. Herrington testified he never made any physical contact with Ms. Wu, and if he did, it was “inadvertent.” He never prevented her from leaving, or swung at her, or made a kicking motion. There was never any screaming, or grabbing, or pushing. During this argument, it was Ms. Wu who was trying to hit him with her right hand on his left side. He took a “few strikes or hits” and “probably asked her to stop” hitting him. She did stop. He estimated the interaction inside the house was 3 to 5 minutes long.
[40] Mr. Herrington testified Mr. French did ask Ms. Wu if she wanted to call someone, but does not recall her answer, then the door closed. He was upset and scared. He waited until “she left safely” and then went to the children in the car. Mr. French forcefully screamed at him to get back in the house, and he did. He sat on a stool and cried as he waited for police, though he did not hear if anyone had called the police. Police did arrive about 45 minutes later.
[41] In cross-examination, Mr. Herrington testified:
- There was no plan to pick up their eldest daughter, though “someone” would, but there was no “specific plan as to which parent would do that”.
- He was frustrated the gas light was on in the car, as he had a similar conversation about refuelling weeks before. It was “frustrating that we were having it again.”
- He was not frustrated with Ms. Wu’s parallel parking, just “concerned” about the transmission.
- He “potentially” raised his voice but did not remember if he said, “no body does this” or called her “stupid.”
- He did not remember if he slammed the car door. He did not remember what he said to Ms. Wu in the store. He remembers they did pick up a tart and wine for the “dinner party” he called it.
- He did not remember what he said on the way home, or the volume he spoke at, but acknowledged he was frustrated.
- He was frustrated again when Ms. Wu parked in front of the home.
- The purpose of going home was to put the groceries away, and then he would get back in the van and go to dinner. He did not remember “desiring” to go to dinner, but as the dad, it was his job to show up.
- He did reach over and turn off the car, because he did not want to “waste fuel” as it is bad for the environment. He acknowledged it was not his practice to turn off the car when someone else is driving.
- The argument was a “back and forth” about the keys. They were circling the island because “we each had something the other person wanted” and it was “possible” that he touched her.
- It was a “provocation” and Ms. Wu did something on purpose that they had talked about.
V. Analysis
[42] Ms. Wu testified in a clear, specific, and candid manner. She easily admitted facts against her interest such as she has thrown things before in an argument, she can be and was worn down by Mr. Herrington’s behaviour and raised her voice. She admitted without hesitation when she could not remember, when she was wrong, or had demonstrated something different to the police in her police statement than in court. She simply and directly agreed that certain things were “possible” though she did recall it that way or disagreed with the suggestions put to her.
[43] Inconsistencies such as which restaurant/store they went to, when the dinner invitation was made, whether Ms. Wu had Mr. Herrington’s keys in her hand or her pocket, either or both, whether she told Mr. French to call someone or not, whether the altercation inside the home took 15-20 minutes or took that long from beginning to end, were all peripheral matters to the core of the allegation: did Mr. Herrington swing at, kick at, and ultimately lunge at and forcefully grab Ms. Wu?
[44] Ms. Wu’s narrative was unshaken in cross-examination. I accept her evidence and find her description of the assault credible and reliable.
[45] Mr. French’s evidence is a helpful narrative from an independent third person perspective. He was specific about what he heard and did not hear, what he thought, and why he thought it, his assumptions and on what basis he made those assumptions. He was forthright throughout his evidence.
[46] Mr. French was candid that he had a “heightened” response because he was aware of “history” between the two, and when asked if saw any physical interaction between Mr. Herrington and Ms. Wu, responded “on that date, no.”
[47] On several points, Mr. French’s evidence supports Ms. Wu’s evidence that Mr. Herrington was the aggressor, she just wanted to leave, she was panicked and upset, and Mr. Herrington was threatening in his demeanour. Mr. French specifically testified that:
- Mr. Herrington’s voice was angrier than Ms. Wu’s.
- He heard Ms. Wu say she wanted her keys and wanted to leave.
- The interaction made him concerned for Ms. Wu not Mr. Herrington.
- Ms. Wu was distraught when she opened the door.
[48] Notably, Mr. Herrington’s rage was so obvious to both Ms. Wu and Mr. French that they both testified they perceived Mr. Herrington to be a danger to the two children in the car. Ms. Wu testified that, before the altercation, she told the children to stay in the car, because she wanted them to be “safe and out of the house.” Mr. French testified that after the altercation, he told Mr. Herrington to get away from the children in the car, because he did not know if “they were in danger” and if Mr. Herrington was going to “harm them.”
[49] I accept Mr. French’s evidence as reliable and credible.
[50] Mr. Herrington’s evidence was not plausible, or consistent. For instance, according to his evidence:
- Ms. Wu, Mr. Herrington and both children got into the mini van to go grocery shopping. There was no plan to pick up their eldest daughter. “Someone” would have, but the 4 of them were just going to pick up ingredients and go back home. Then he was going to cook dinner for the 5 of them.
- Although he knew in the store that he was no longer going to cook dinner, and they picked up the tart and wine for dinner, he kept shopping and wanted to drop off the groceries.
- Although he was frustrated about the gas light, two instances of her parallel parking, the change of plans, and that he would not get to cook his special dinner, his voice never altered as he expressed his frustration.
- Although he was going to “be right back” to the car after he put away the groceries, in addition to turning off the car, he took the keys to the car, and Ms. Wu’s purse.
- Although he intended on going to the dinner with Ms. Wu, he wanted his keys to the van, knowing he had taken her keys to the van, and she would not be able to drive it otherwise.
[51] Mr. Herrington’s testimony that Ms. Wu was provoking him by reversing while moving forward because they had “talked about this before” was exemplary of his condescending attitude, one the court observed with his tone with the Crown. R. v. Kruk, 2024 SCC 7, at paras. 146 and 155.
[52] Mr. Herrington’s reaching over and turning off the car when she was the driver was a demonstration of his aggressive, intimidating, and controlling behaviour.
[53] Had Mr. Herrington, though frustrated, intended to go to the dinner when the plans were changed in the store as he testified, there would be no need to buy the ingredients of the dinner he was not going to make. Had he intended to go to the dinner, there was no need to return home. Had he intended to return to the van, there was no need to not return the keys and the purse to Ms. Wu. If Mr. Herrington was telling the truth about his intentions, and his behaviour, there would have been no argument, much less, as he testified, a circling of the kitchen island, “because each person, had something the other person wanted.”
[54] I reject Mr. Herrington’s evidence about the altercation in the kitchen of their home on September 24, 2023. It raises no reasonable doubt.
[55] I find Mr. Herrington took Ms. Wu’s purse and her car keys and went into the home. She took his keys from a key bowl and asked for her keys and purse back. Mr. Herrington would not give them to her. He continued to scream and intimidate her as he had done while she drove to a restaurant store and back home. He became aggressive. They circled the kitchen island. He was loud, red-faced, eyes bulging, fists clenched. Mr. Herrington lunged at Ms. Wu to get his keys. At one point, he swung his fist at her and made no contact. He kicked at her and made no contact. He grabbed her arm forcefully and would not let go. Both times he grabbed her she tried to push him off, struck him, and told him to get off her. Mr. French’s loud banging on the door is what ended Mr. Herrington’s assault on Ms. Wu.
[56] In regard to the defence submission that if the court found there was contact between the parties, that it was de minimis, I refer to the Ontario Court of Appeal’s discussion of de minimis in R. v. Murdock, para. 29:
…The “de minimis” defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statutes, where possible, should not be read so as to encompass conduct which is trivial or harmless (citations removed)…
… Patience and resort to lawful means to resolve a dispute must always be chosen over an act of intimate partner violence. …(while) the context of the offences must be considered, in my view, the societal values associated with intimate partner violence will almost always preclude the successful application of the defence of de minimis or “consent fight”: see R. v. Carson, para. 25; Gosselin c. R, 2012 QCCA 1874, para. 40; R. v. Downey, 2002 NSSC 226, para. 37.
[57] This physical assault was not de minimis. Far from it. This was no trivial matter that posed no risk. This was not harmless behaviour.
[58] Mr. Herrington assaulted Ms. Wu after hours of intense, domineering, condescending behaviour. He was aggressive and intentionally menacing in tone and conduct. Mr. Herrington was clearly coercive and controlling, and finally physically violent. Not only was he not going to go to dinner at the friend’s place, but he was going to make sure that Ms. Wu would not either.
[59] Mr. Herrington reached over from the passenger seat, and turned off the car, according to his own evidence. He took her car keys. He took her purse. He left her and the children in the car. He made sure he was in control, and she had no options.
[60] Mr. Herrington’s evidence that Ms. Wu was in a “mood” could not be more disingenuous. On his own evidence, he was the one who was frustrated and felt provoked that Ms. Wu did put gas in the car, and reversed while driving forward, twice after they had “just talked about it.” On his own evidence, he was frustrated about how he was not going to get to cook the dinner he wanted and about how the plans had changed.
[61] It was Mr. Herrington who was in a mood, and it was an aggressive, enraged mood that turned violent when Ms. Wu got his keys and tried to negotiate getting her own keys and purse back. His words “or what?” were illustrative of the power he felt and exercised emotionally and physically over Ms. Wu.
VI. Conclusion
[62] For the above reasons, Joseph Herrington, I find you guilty of assault on Janice Wu.
Released: April 9, 2025
Signed: Justice Cidalia C. G. Faria