ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: AP350/12
DATE: November 6, 2012

BETWEE N:

HER MAJESTY THE QUEEN

Stephanie L. Venne for the respondent

Respondent

• and -

PATRICK TSCHUDI

Dale E. Ives for the appellant

Appellant

HEARD: August 8, 2012

MITROW J.

INTRODUCTION

[ 1 ] The appellant, Patrick Tschudi, appeals both conviction and sentence. He was convicted of assault contrary to s. 266 of the Criminal Code of Canada and sentenced to a fine of $650, a victim surcharge fee of $97.50 and 15 months probation. The Crown had proceeded summarily.

[ 2 ] The trial was held before McKerlie J. in the Ontario Court of Justice at Stratford on November 16, 2011. The appellant was convicted and sentenced on December 6, 2011.

[ 3 ] The grounds of appeal against conviction are that the trial judge erred in rejecting the defence of a consensual fight and that the verdict is unreasonable. Central to the appeal against conviction is whether the trial judge misapprehended the evidence.

[ 4 ] For reasons that follow, I would allow the appeal against conviction and order a new trial in the Ontario Court of Justice before a different judge.

FACTS THAT ARE NOT IN DISPUTE

[ 5 ] The facts set out by the appellant in his factum in relation to conviction are accepted by the respondent and are summarized below.

A. Background

[ 6 ] The appellant and the complainant, Kascha Tschudi, were married to each other in 2006. They had purchased a home together and they have one child.

[ 7 ] The incident in question occurred in the early morning hours of July 31, 2011. At the time of the incident the appellant and the complainant were estranged, but still living under the same roof in the matrimonial home. The complainant testified she believed the appellant had moved out of the matrimonial home two weeks prior to the incident, but it was the appellant’s testimony that he had not left the matrimonial home, but rather was coming home late, sleeping on the couch and leaving before the complainant woke up.

[ 8 ] The night before the incident, the appellant and complainant had attended, separately, at the same wedding.

[ 9 ] While at the wedding, the appellant would not talk to the complainant when she tried to speak to him. They each left the wedding separately. From dinnertime onwards, the complainant had about four drinks and the appellant had about four or five drinks.

B. The Complainant’s Evidence in-Chief

[ 10 ] The complainant was asked by the Crown to tell the court “what happened when [she] got home.” The complainant then provided the account of the incident as described below.

[ 11 ] The complainant left the wedding sometime between 2:45 and 3:30 a.m. She entered the house, noticed the bedroom light was on and went up to the bedroom.

[ 12 ] By the time she went up to the bedroom, the light was out and the appellant was sleeping in the bed. She did not expect to find him there.

[ 13 ] She went up to the appellant and asked him what was going on in their relationship. She laid on the bed beside him, facing him, and his back was turned towards her, and tried to get him to speak with her. The appellant rolled over and used both feet to kick her in the stomach, knocking her off the bed and onto the floor.

[ 14 ] The complainant got up and told the appellant he could not do that to her. She walked out of the room for about 30 seconds and then came back into the room. She saw that the appellant had his phone beside him and she was reading his text messages to another girl. Then she got upset and told him they needed to talk.

[ 15 ] The appellant refused to talk about it, he just said weird things and said to drop it and leave him alone – just get out. The complainant said no.

[ 16 ] The appellant sprang out of bed, grabbed her neck with his right hand and pushed her out of the room into the hallway and slammed the door.

[ 17 ] The complainant went to the couch, called her mother to come and get her and her mother arrived about 30 minutes later. They went to her mother’s home, arriving about 4:30 a.m. Emotionally, the complainant was shocked.

[ 18 ] The next morning, the complainant’s mother drove the complainant to Brussels to get the complainant’s car. On the way there, the complainant used her cell phone to take photographs of her bruises. She had bruising in the middle of her neck, to the right and left of each side, and some veins on the side that looked like they were burst. In the afternoon, the complainant went to the hospital, was examined and released.

C. The Complainant’s Evidence on Cross-Examination

[ 19 ] The complainant testified that at the time of the incident she was involved with another man.

[ 20 ] The complainant said it was a 25 minute drive from the wedding to the house, so she arrived roughly between 3:30 and 4:00 a.m.

[ 21 ] When the complainant got to the bedroom, the appellant was pretending to sleep. The complainant knows that because she knows her ex-husband and knows when someone is sleeping and when they are not. He was ignoring her.

[ 22 ] After the appellant kicked her out of the bed, she took her hand lotion off the dresser and put it on his back because she was upset. She said she did not tell the Crown about the hand lotion because it is “not what happened to me. He asked what happened to me.”

[ 23 ] After the complainant read the text messages, she accused the appellant of having an affair with his ex. He told her numerous times to get out of the house.

[ 24 ] When the complainant first entered the bedroom, she did not start shoving the appellant around in the bed or try to roll him over. She did not recall if she subsequently laid a hand on the appellant. She did not block the door.

[ 25 ] The appellant got out of bed after she accused him of having an affair, which was after she had sprayed the hand lotion on him and after she read the text messages. When he got out of the bed, she was standing to the right of the doorway leaving the bedroom.

[ 26 ] The appellant asked her to leave him alone. She continued to yell at him. She does not remember him asking her to leave again except for when he grabbed her neck and told her to get out.

[ 27 ] The appellant locked the door to the bedroom after he pushed her out.

D. The Complainant’s Mother’s Evidence

[ 28 ] The complainant’s mother received a call from the complainant and the complainant’s mother arrived at the house somewhere between 4:15 and 4:30 a.m. The complainant’s mother observed the complainant to be very, very upset and very shaken, the complainant was crying, the complainant was having trouble talking and was holding her throat, saying she could barely talk. On returning to the complainant’s mother’s home around 5:00 a.m., the complainant’s mother noticed some redness around the complainant’s neck but no visible bruising. The following day she observed some slight bruising on the complainant’s neck.

E. The Appellant’s Evidence in-Chief

[ 29 ] The appellant testified he was not involved with anyone else.

[ 30 ] He left the wedding about 2:30 or 3:00 a.m. and as soon as he arrived home he went to bed in their bedroom.

[ 31 ] The appellant was awakened up by the complainant poking and prodding him, wanting to talk. He did not respond to her because both had been drinking and he did not want to start a confrontation. She left the room and he fell back asleep.

[ 32 ] The appellant was awakened again by the complainant spraying hand lotion all over him in the bed and yelling about him committing adultery. At first, the appellant laid there because he thought the complainant might leave but the complainant continued yelling. The appellant got out of bed, walked toward the complainant and told her to leave, that he did not want to do this. In response, the complainant backed up out of the room.

[ 33 ] The appellant went to close the door and the complainant pried her body back into the door so he could not close it. The appellant gave the complainant a shove out of the doorway so he could close and lock the door. He went back to bed and slept.

[ 34 ] When asked by his counsel if he had ever laid a hand on the complainant in “anger or frustration,” the appellant said “yes.” He felt this when the complainant wedged her body back into the door to prevent it from closing. (It should be noted that at trial, the appellant’s counsel did not clarify which emotion the appellant had been feeling. The appellant’s counsel on this appeal was not the appellant’s trial counsel.)

[ 35 ] The appellant indicated he pushed the complainant out the door because he had had enough of the verbal abuse. They had both been drinking and he did not want to deal with it. He did not think there was anything else he could have done to get the complainant out of the room.

F. The Appellant’s Evidence in Cross-Examination

[ 36 ] In cross-examination, the appellant testified he slept in his bed because he assumed the complainant would not be coming back to the house after the wedding but would be going with her friends or to Seaforth where their daughter was staying.

[ 37 ] When the appellant was awakened by the complainant, he did not leave the bedroom because he thought it was her turn to sleep on the couch. He did not say this aloud.

[ 38 ] When the appellant walked towards the complainant, he had both hands up at chest level with his palms facing out, as if he was going to push her. He did not touch her while he walking towards her. When he tried to close the door, the complainant stepped between the door and the frame, causing the door to hit her in the mid-section. The appellant did not try to hit the complainant with the door; he was trying to close it and she stepped in.

[ 39 ] On further cross-examination, the Crown asked the appellant where he had laid “his hands on [the complainant] in anger” when pushing the complainant out the door. (It should be noted that, in going back to the evidence of the appellant in-chief, it was not clear whether his answer was in relation to being angry or frustrated.)

[ 40 ] The appellant testified that after the complainant blocked the door, he put both hands on her upper chest below her neck above her breast area and pushed her out of the doorway. He did not put a hand around her neck and push her. He was “sure” his hand did not slide up and hit her in the throat area.

DISPOSITION OF THE APPEAL

[ 73 ] For reasons set out above, I would allow the appeal against conviction, set aside the conviction and order a new trial in the Ontario Court of Justice before a different judge.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: November 6, 2012