ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHAWN JEFFREY MANSHIP
Defendant
Natalie Thompson, for the Crown
Michael Mavraganis, for the Defendant
HEARD: September 2 – 5, and 8, 2014 at Perth
T.D. RAY, J
1The defendant pleaded guilty to 7 of 15 counts arising from incidents on April 3, 2012, June 3, 2012, and a police chase after the June 3, 2012 incident. Since the facts underlying the counts to which the defendant has pleaded guilty are not completely accepted, evidence on those counts is also being led so that I can make the necessary findings for sentencing purposes. Those counts relate exclusively to the defendant’s interaction with the police and his driving after the incident of June 3, 2012.
2The counts to which the defendant has pleaded not guilty relate to the assault counts relating to the incidents of April 3, 2012 and June 3, 2012; and some of the counts relate to his driving after the incident of June 3, 2012. The defendant gave evidence.
April 3, 2012 incident
3The defendant gave evidence. He is 6’ 2”, 220 lbs, and 37 years of age. He has three children by different mothers and is unemployed. One of the children was seven at the time and lived with him and with his parents. He said the child had medical issues which were very demanding of his time and he gave that as a reason why he had been unemployed. He said that on April 3, 2012, he and Ms. English had been in their apartment when she said she was going out for a cigarette. She had been gone for what he thought was a long time so he went looking for her. He heard her voice inside Todd Swan’s apartment. He was let in, and saw Ms. English sitting on a couch with Todd’s brother, Brad. He said he asked her why she was there, then left and returned to his apartment.
4Ms. English returned to the apartment a minute later. He said she was arguing and saying that she can go anywhere she wants and is not accountable to him. He said he felt very frustrated and angry because she was in the apartment with Todd and his brother. He picked up a small hall table to chest height, and smashed it on the floor. One of the pieces flew up and hit Ms. English on her leg. He said he then picked up some shoes that had been under the hall table and threw them at the wall. One of the shoes bounced off the wall and hit Ms. English at the side of her eye. The defendant said Ms. English became very upset and left the apartment. The defendant said that a few minutes later he went looking for her, and again heard her voice in Todd’s apartment. He said he knocked on the door, went in, and began arguing with Ms. English. Todd emerged from a bedroom and told him to leave. Then Todd punched him. The defendant blamed Todd for escalating things and intervening.
5After he returned to his apartment, the police arrived. The defendant signed an undertaking to keep the peace, abstain from alcohol, and have no contact with Todd or Ms. English. The defendant agreed that between April and June, 2012, he breached two of the conditions- no alcohol - and no contact with Ms. English.
6The defendant denied that the arguments earlier were because Ms. English had been critical of him for his behaviour and in not working but said she was the one who had not been studying, paying her way or helping out in the apartment. He said that he had lost his temper because Ms. English was not respecting his demands.
7Katharine English is 27 years old and grew up in Carleton Place. She is single and graduated with a college certificate in office administration. She had lived with her mother Suzanne Narbonne in Carleton Place, but then essentially moved in with the defendant and his seven year old son at an apartment in Perth, which is approximately 30 km west of Carleton Place. She had been living with the defendant at his apartment in Perth five to six days a week for about five months. At the time she was still a student. She and the defendant had met about three years earlier and started dating after about a month. Ms. English said the relationship had been normal until approximately January, 2012, when they began to have arguments. These arguments which included screaming and yelling were generally over what she considered to be his insufficient caring for his son, and his not doing anything.
8She said that on April 3, 2012 she was off school and at a neighbouring apartment along with the defendant and his son, in the same building as their own. She left the neighbours along with the defendant’s son to return to their own apartment so she could do homework. The defendant decided to stay at the neighbours. When the defendant returned to the apartment, she and the defendant began arguing. She said he stormed out and returned to the neighbour’s apartment. She said she then went outside to smoke adjacent to Todd and Brad Swan’s ground floor apartment; and after chatting with them through their window, she went into the apartment to chat. The defendant came down and knocked on the door looking for her. He was clearly upset, left, and she followed him back to their apartment. The argument escalated. The defendant told her he didn’t want her in another man’s apartment alone. She said he picked up a small hall table, smashed it on the floor and a piece flew up and hit her leg causing a gash. He then picked up some shoes and threw them at the wall. One of them bounced off the wall and hit her in the face. In cross-examination she agreed that while he appeared to intentionally break the table and throw the shoes, he had not been intentionally trying to hit her. She left the apartment and went back down to the hallway. She said the defendant came down, yelling in an aggressive manner. She knocked on Todd and Brad’s apartment door. She said she was upset and crying. They let her in. The defendant knocked on the door. She said she heard Todd tell the defendant to leave her alone. The defendant left. In the meantime, another resident came into the apartment and helped clean the cut on her leg. She said that about twenty to thirty minutes later, the defendant returned, banged rather than knocked on the door and insisted on coming into the apartment. She said Todd opened the door. She could not hear what the defendant said, but she heard Todd tell the defendant to “calm down” and “leave her alone for now”. Then she saw the defendant on the ground. She believed that Todd hit him, but did not see it. The defendant left, and Todd telephoned the police.
9Ms. English returned to live with her mother in Carleton Place, and said that days later she learned that the defendant had been charged, and been made subject to conditions, one of which was not to communicate with her. In fact, she said that over the next several weeks they communicated by phone about 5 times, plus a “face to face”, but there had been no further arguments or altercations until June 2-3, 2012.
10Suzanne Narbonne is 50 years old and has two daughters, one of whom is Katharine English. She recalled when the defendant and her daughter began to date. While she got on well enough with him, she said she was not happy about them dating. She did not give an explanation. She said that while Ms. English and the defendant argued from time to time, they got along well enough. Ms. Narbonne recalled Ms. English returning to live with her on April 3, 2012, that she was upset and had “markings on the bottom of her leg”. She said she was aware the defendant and Ms. English had been in contact even though there were conditions in place.
June 3, 2012 incident
11The defendant said he arrived at Ms. Narbonne’s residence in Carleton Place where Ms. English was living at between 10.30 and 11pm on June 12, 2012. He said he was “not crazy about “seeing her but it was a mutual thing. He said it was only one call from a payphone that day. Earlier that day, he said he had done his usual things at his apartment including having a beer. He drove in his own black Hyundai to his parents in Carleton Place, and changed to his father’s blue Ford Taurus because of car problems.
12He arrived at Ms. English’s place in Carleton Place. He said he had a discussion with Ms. English, shared a beer, and walked to the Queens Hotel. He said he had one beer at the Queens, and nothing to drink at the Thirsty Moose, a nearby bar. He thought Ms. English had been drinking though. They then went back to the Queens and they saw Ms. English’s cousin, Anne Willbond. He said he was not engaged in too much drinking and had half a beer. He said he was aware that Ms. English was dancing, and he talked to another girl. He said that Ms. English became angry that he was talking to another girl, and left the bar. She had called him a “fucking slut” as she left. He said he felt embarrassed but not upset. On leaving the bar he saw the police cruisers outside but did not notice any fights. He said he only wanted to find out why she was so upset.
13He said he followed Ms. English back to her place. He said he wanted to confront Ms. English about her calling him a slut. When he arrived, he said he just walked in, and Ms. English and Ms. Willbond were sitting in the kitchen. He said he spoke first and yelled – “what the hell is going on? Why would you yell at me at the bar?” He denied slamming the door or the fridge door. However, he said he was upset, angry and yelling while they were still sitting in the kitchen. He wanted Ms. English to come to the hallway so he could speak to her. Ms. English and Ms. Narbonne followed him out into the hallway. A couple of seconds later, Ms. Willbond came out. He said he decided to leave. He said voices were very loud. He said he didn’t want a fight but agreed that he was angry. He had to shout to be heard over the women, and became angrier. The defendant said that Ms. English and Ms. Narbonne were holding him back and preventing him from leaving, then Ms. Willbond joined in so all three were holding him. He said he began moving his arms and “maybe girls might have been hit”. He was a few feet from the door with his back to it. He said he was angry, turned to Ms. English, told her to “fuck off”, then turned around to leave. The women were all pulling on the back of his t-shirt. He was upset and slammed through the screen door with his arms and hands. He said he was not aware of hitting anyone with his arms and denied punching the ladies. He said Ms. Willbond was right behind him and got smashed in the face with the screen door. He said he saw that she was hurt, on the floor inside the screen door as he turned around to look.
14He agreed that at no time were the women punching him. He said he only wanted 5 minutes alone with Ms. English to sort out their problems. He said he only had a total of two beers that night.
15The defendant left and began driving home to Perth.
16Ms. English said that she and the defendant had agreed that he would come to visit her and they would watch a movie together the evening of June 2, 2012. He arrived around 10 pm. Only her mother, Suzanne Narbonne was there. She said that the defendant came up to her bedroom and told her he wanted to go out with friends that evening instead of staying in. She said he appeared very hyper with a lot of energy, and told her he had had only one beer. They left her mothers and walked the 5 minutes to the Queens Hotel. She said she had one beer at the Queens, and then went to the “Moose” where she had two beers; and returned to the Queens where she had two more. She thought the defendant had one or two more than she had. Until closing time at 2am, they each spent most of their time talking to their own friends. Specifically, she coincidentally met up with her friend and cousin Ms. Willbond, with whom she spent most of her time. At 2am, closing time they went to leave, and found fights in progress on the street in front of the bar, and a number of police cruisers. She asked her friend Ann to come home with her, and told the defendant she thought in view of the police presence and that they weren’t supposed to be together, that he should leave as well. He asked her to wait with him, and she replied that she was going home. She was not sure he heard her reply.
17Ms. English said she and Ms. Willbond walked the 5 minutes back to her place, put on their pajamas, and some music, when the defendant came in.
18She said the defendant slammed the front door, then went to the fridge and slammed it as well. She said he was very angry, that she had not waited for him. He turned towards the door speaking aggressively and angry, so she said she followed him to the hallway and told him to stay. She said she was concerned he was going to drive. He continued to raise his voice and yell insults, calling her a slut. Ms. Willbond then entered the hall area, and both put their hands up to calm him. She said there was no contact. The defendant then punched her in the face so she fell backwards into a coat rack. Then he punched Ms. Willbond repeatedly. While punching Ms. Willbond, he said you never liked me anyway, while Ms. Willbond was backing up and saying “stop”. She said there was blood. At that point she said her mother, Suzanne Narbonne tried to intervene. She said the defendant pushed Ms. Narbonne away, and began punching her repeatedly on her head although she had her arms up to protect herself. The defendant called her an old bag, and a drunken old lady. Then the defendant turned to punch Ms. English again. While there was a brief break, Ms. English managed to get up and maneuver the defendant out the entry door, and locked it. She called 911.
19Ms. English said her injuries consisted of a swollen left eye, black eye, bump on her head, and swollen cheek. She did not seek medical attention. A photograph introduced into evidence and printed on ordinary paper was of a very poor quality. No injuries were evident.
20The police arrived, Ms. Willbond was taken to hospital, and Ms. English told the police the type of car the defendant was driving along with his likely route back to Perth.
21In cross-examination, Ms. English denied she was always aggressive when drinking. However she said she enjoys drinking, and continues to drink but not excessively. She agreed that she did not call the police when she knew the defendant was in violation of his bail conditions, but said they were his conditions, not hers.
22Ms. Narbonne described being at home with Ms. English the evening of June 2, 2012, having some “bevys”, and listening to music. Her beverage of choice was vodka and juice. She had drunk heavily throughout the evening. Ms. Narbonne said that the defendant arrived and the three of them discussed the April 3 incident. She said he apologized and said it would never happen again. The defendant and Ms. English went to her bedroom and then reappeared with her dressed and saying that instead of staying in, they were going out to a bar. She said she believed they left approximately midnight.
23Approximately, 2am, Ms. Narbonne said Ms. English and Ms. Willbond came in. They were laughing and seemed to be having a good time.
24About 10 minutes later, the defendant arrived. Ms. Narbonne admitted she was intoxicated. She said he was angry, slammed the door and went to the fridge. She said he took a beer form the fridge and slammed the fridge door. Then he went back to the entry hallway. She said that Ms. English followed him to the hallway, where she heard them arguing. The defendant asked why she left, and Ms. English replied that she told him they were leaving. Ms. Narbonne heard scuffling and went out to the hallway. She saw that Ms. Willbond had already been hit and was to her right sitting in a pool of blood on the laundry room floor. The defendant had his back to her, and Ms. English was facing her. They continued arguing and raising their voices. Then the defendant punched Ms. English in the face with his closed fist, and then punched her again. Ms. Narbonne tried to get in between them, and grabbed his cocked arm to stop him from punching Ms. English. She said the defendant pushed her down into the corner of the hallway, and then starting punching her while she was down. She had her arms over her head. He was yelling insults at her. Then the defendant turned and began punching Ms. English again repeatedly. Ms. English got up and was able to push the defendant out the door, and lock it. Under cross-examination, she said there was nothing to stop the defendant leaving, and denied counsel’s suggestion that one or more of the ladies was trying to stop him from leaving. She agreed that when she is intoxicated, she might get the order of events wrong but not the events themselves.
25Ann Willbond is 27 years of age, a cousin and friend of Ms. English. She grew up in Carleton Place. She and some girlfriends had been celebrating a birthday the evening of June 2, 2012 and arrived at the Queens Hotel between11pm and midnight. After a while she met up with Ms. English and the defendant, and her girlfriends left. She chatted with Ms. English, and danced. She said while it was known as a rough bar, it was the only place in Carleton Place to dance. At closing time- 2am- on leaving she found several police cruisers outside the hotel and fights in progress in front of the hotel. She said the defendant wanted to stay, so she and Ms. English walked the 5 minutes back to Ms. English’s house. In cross-examination, she admitted she was intoxicated. She said they were both in a happy mood chatting about friends when they arrived.
26She said they had not had a chance to sit down and were still in the kitchen when the defendant flung open the front door, then the fridge door. He was yelling at Ms. English and calling her names because she had left. She said Ms. English seemed surprised at his behaviour. They moved from the kitchen to the adjacent hallway. Ms. English followed the defendant and was trying to persuade him not to leave because of the non-drinking conditions. Then Ms. Narbonne entered the hallway, followed by Ms. Willbond. The defendant continued to be aggressive and yelling. Ms. Willbond said she felt very scared and put up her hand, palm outwards as protection, without touching him. The defendant shouted insults at her and punched her in the face.
27She next remembered being on the laundry room floor, at the far end of the hallway, on her hands and knees surrounded by blood; and a police officer with her. Photographs introduced into evidence showed a large quantity of blood on the floor of the laundry room. She was taken to the Carleton Place Hospital by ambulance.
28Ms. Willbond’s injuries included a broken nose and black eye, both documented in a photograph. She also had bumps on her head. At the hospital her nose was re-set and she was treated. Ms. Willbond described plastic surgery that was necessary to straighten a deviated septum caused by the blows, and which had prevented her breathing in one nostril. Since then she has lost her sense of smell. A medical report from the Carleton Place Hospital notes that Ms. Willbond was examined in the emergency at 3.07am with facial injuries. The report notes “Intoxicated. Was at the cousin’s house and got punched in the face. Nose broken. No other injuries”. It notes that that her nose was “relocated with pressure”.
29She said she had no memory of Ms. English trying to physically prevent the defendant from leaving. Ms. Willbond said that Ms. English has in the past got angry when drinking if someone upsets her.
30An agreed statement of fact filed in evidence placed OPP Cst Macintosh as the first officer at the Narbonne residence. When he arrived, Ms. English and Ms. Willbond were on the front lawn. Ms. Willbond was holding a bloody cloth to her face. He did not notice any injuries to Ms. English. Ms. Narbonne was on the porch. All of them were yelling at each other, and all were intoxicated. OPP Cst. Rogers arrived at the scene at about the same time. He said that Ms. English and Narbonne were yelling that they had been hit. He noted a small bruise-mark under Ms. English’s left eye. Ms. Willbond was on her knees in the laundry room, in a lot of pain and bleeding profusely. OPP Cst. Tereschuk arrived about the same time. He observed that Ms. Narbonne was intoxicated. He said she had a mark or abrasion above her left eye. He saw Ms. Willbond briefly. She was in the back of the house near blood on the floor. Later in the day, he took the photographs of Ms. Willbond and Ms. English that were introduced into evidence.
Driving offences and pursuit of June 3, 2012
31The defendant said that he left Carleton Place in his father’s blue Ford and proceeded west on Highway 7 towards Perth. He said that as he approached Perth, he was pulled over by an OPP SUV. Two officers came up beside the car. The female officer asked for his identification and told him he was under arrest. He said “I panicked and took off”. He said that he had had a “melt down that night”. He denied saying to the female officer – “catch me”.
32With the OPP SUV in pursuit with lights and siren, he drove towards Perth along Highway #7, and turned left on Drummond St. He said he stopped at all of the stop signs along Drummond St. after slowing to make sure there was no cross traffic, then turned left onto Highway #43 which leads to Smiths Falls. He said he did not stop at the stop sign at Highway #43. He said he was feeling terrified. He said he approached a construction zone - one lane controlled with a traffic light - waited for the light to turn green when he saw the OPP SUV in pursuit had fallen behind, and then proceed. He said he approached the town limits of Smiths Falls, and saw two police cruisers angled towards him and a “nail belt” across the road. He drove through the nail belt and after striking some cruisers finally stopped. He said the police were pretty upset and approached his vehicle with their guns drawn. He said there were police everywhere, and he was worried he was going to be shot. He remembered the first officer, Sgt. Klassen approaching the side of his vehicle and telling him to get out of the car. Then another officer came around to the side and smashed the driver’s side window. When asked why after being stopped, he had continued to drive forward and backward smashing into the police vehicles, he said he had been “going through a rough time with life at the time with all kinds of problems and had a melt- down”. He said he was frustrated with life.
33Cst. Whiting, a 20 year veteran of the OPP was riding with Cst. Skillen in an OPP SUV on Highway 7. They had been alerted to the possibility of the defendant driving west on Highway 7 toward Perth. They were proceeding eastbound, saw what they believed to be the defendant’s vehicle going west, did a U-turn, and pulled the defendant over. The defendant identified himself to Cst. Whiting and she told him to shut off his engine, and informed he was under arrest for assault. She repeated this three times, when he began rolling up his window, and said “catch me”. She said he accelerated away. The two officers got back into their SUV, activated the lights and siren, and engaged in pursuit towards Perth. They followed the defendant to Perth and south on Drummond St. She said the defendant stopped at one 4-way, then went through the next 4-way, failed to stop at its intersection with Hwy 43, and turned east towards Smiths Falls. While on Drummond St. which is a residential area and includes a hospital, she said the defendant’s speeds were between 80 and 100 kph in a 50 kph zone. As he proceeded towards Smiths Falls on Hwy 43, his speed was as high as 120 kph. At Port Elmsley, approximately half way to Smiths Falls, the speed limit drops to 60 kph. Twice the defendant came to a complete stop. The first time, they tried to pull up beside him and he accelerated away. The second time, they stayed in behind the defendant, and he then accelerated away again. Farther on, was one lane construction zone controlled by a traffic light. The light was red so Cst Whiting and Skillen stayed back in case there was ongoing traffic. The defendant went through on the red signal, after they saw he got through they then accelerated to catch up. The pursuit continued through the road block and at the final ‘boxed in’ stop, the defendant rammed the driver’s side of their SUV. Under cross-examination, no vehicles were seen to have had to take evasive action during the pursuit, except for two oncoming vehicles on Hwy 43 who were seen to pull over.
34OPP Cst. Skillen was driving the OPP SUV. He said that on Drummond St, he saw no brake lights on the rear of the defendant’s car suggesting he did not brake for any stop signs. He observed that the defendant’s driving was erratic, swerving shoulder to shoulder and varying in speed between 20 kph and 120 kph.
35Sgt. Klassen of the Smiths Falls police service gave a voice overview of a video shot from his vehicle from the time he and another officer established a road block at the entrance to the Town of Smiths Falls until the defendant’s vehicle was stopped and the defendant apprehended. The roadblock was established at 3.11 am through the positioning of their marked vehicles and a spike tire deflation strip across the road between the vehicles. Approximately seven minutes later the defendant’s vehicle could be seen passing at speed over the strip followed very closely by the OPP SUV. During the pursuit, the defendant can be seen hitting another police vehicle which is trying to stop him. The defendant’s vehicle is then boxed in by several vehicles. Sgt. Kassen’s vehicle can be seen shuddering as the defendant backed into it after he had been boxed in. Three police officers can be seen standing adjacent to the defendant’s car with their pistols drawn. Finally, the defendant is brought out through the broken window of the locked driver’s door and hand-cuffed.
36Sgt. Klassen described that the defendant on finally being boxed in drove forward into one police vehicle, then reversed into Sgt. Klassen’s vehicle, forward again into another police vehicle, and reversed again. He then sat revving his engine as three of his tires had been burst by the spike tire deflation strip. He said the driver’s door was locked and the defendant would not get out when ordered to do so. So Cst. Walker broke the driver’s window with his baton. Sgt. Klassen said the defendant looked at him, grinned and said – “catch me”. He was then brought out through the window, grounded and hand-cuffed. He said the defendant was not resisting but was not being cooperative. Photographs at the scene showed significant damage to at least four marked police vehicles.
37Cst. Morris of the Smiths Falls Police pursued the defendant’s vehicle after it went through the roadblock, tried to pass it but was cut off, then successfully passed it, got in front so as to slow down and bring the defendant’s vehicle to a controlled stop, and was rear ended by the defendant. Then he tried to pass Cst. Morris and struck Cst. Morris’ cruiser. Later at the end of the pursuit, the defendant struck Cst. Morris’s cruiser again.
38An agreed statement of fact was filed. It essentially summarized the evidence of the officers.
39A certificate of toxicology was filed in evidence on consent. It noted that at 4.51am and 5.13am, the two breath samples showed 090 mgs of alcohol in 100mgs of blood.
Analysis
Count #14: April 3, 2012 assault on Katharine English contrary to section 266 CCC
Count #15: April 3, 2012 assault on Katharine English with a weapon – table and/or shoe contrary to section 267(b) CCC.
40One of the essential elements of both counts is intent. Did the defendant intend to threaten or cause contact with the Ms. English. There is no doubt that as a result of the defendant’s action in smashing the table on the floor and throwing his shoes that she was struck by a broken table leg, and a shoe. The broken table leg caused a small laceration. The shoe did not cause any injury to Ms. Willbond. The defendant gave evidence. Therefore, in accordance with the instruction in W(D), I must first consider whether I am left with a reasonable doubt by his evidence. I am not left with a reasonable doubt. His explanation was that he was angry, and had lost his temper because Ms. English would not respect his demands. His actions over the preceding hours were childish and irresponsible. All were designed to demonstrate to Ms. English that she was to follow his direction and do what he wanted. His action in smashing the table and throwing the shoes was simply further evidence of a childish temper tantrum designed to emphasize that she was to do what he wanted. It is notable that at no time during his evidence did he show any remorse or regret. It was always the fault of someone else. For example after entering into his neighbour’s apartment to have it out with Ms. English, he blamed the neighbour for interfering. Apparently, it never occurred to him that he had no business intruding into his neighbour’s apartment.
41It is an essential element of the offence that the striking of Ms. English with the piece of chair leg, and the shoe by the defendant, was an intentional application of force.
42Ms. English said that she did not believe that he intended to hit her or hurt her when he smashed the table leg and threw the shoes. That was his evidence also. I do not accept the Crown submission that in the face of her own witness’s evidence that there was no intent that it is open to me to consider other circumstantial evidence and conclude beyond a reasonable doubt that the defendant is guilty. I am left with a reasonable doubt as a result of her evidence, and find the defendant not guilty of Counts #14 and #15.
Count #1: June 3, 2012, assault on Suzanne Narbonne contrary to section 266 CCC.
Count #2: June 3, 2012 assault on Katharine English contrary to section 266 CCC.
Count #3: June 3, 2012 assault on Anne Willbond causing bodily harm contrary to section 267(b) CCC
43The issues are whether on June 3, 2012, the defendant struck the complainants, and in Ms. Willbond’s case whether the defendant caused the injury to her nose and eye.
44The defendant gave evidence and I must therefore consider whether I am left with a reasonable doubt as a result of his evidence. I am not. His evidence was that he only had two beers that night, yet a toxicology report which he accepted, noted his blood alcohol at .09 approximately three hours after he had returned from the bar. Notably, he said he had a “melt down that night”. His description of his own actions that night showed him to be aggressive. He was angry, yelling, shouting, and becoming angrier. I do not accept that he simply wanted to leave, that the complainants were trying to prevent him from leaving, and that he may have struck the complainants while swinging his arms to get them off him. I also don’t accept that as he left, the screen door closed on Ms. Willbond and injured her. It makes no sense. First of all, it was he who wanted to see Ms. English. She and Ms. Willbond had already returned home. They apparently were not expecting him, and no one had asked him to return. That was his decision. His stated reason was that he wanted to confront Ms. English and wanted to know why she called him a slut. In fact he knew why she insulted him if that were the case. On the basis of the defendant’s evidence, it is clear that he wanted to have it out with Ms. English. It makes absolutely no sense that any of them- leave alone all of them- wanted the defendant to stay and were trying to prevent him from leaving. I do not accept his version of events. It is clear that his intention was to confront Ms. English and show her how angry she had made him. It was a childish and immature reaction which escalated when it became apparent that Ms. English was not going to be threatened and pushed around. He became angrier when Ms. Narbonne and Ms. Willbond came to her defence.
45None of them had been physical with him. He said none of the complainants punched him. According to him, the most they did was to try to hold him by grabbing his t-shirt. I cannot conclude on the basis of his evidence however that they wanted him to stay. Ms. Narbonne did not like him. Ms. Willbond did not really know him. Their actions only make sense if they were trying to prevent the defendant from hitting one of them.
46I accept Ms. Willbond’s evidence that while she was in the hallway trying to calm everyone, she put her hand out in front of her, palm outwards, in a calming motion. I accept, and I so find beyond a reasonable doubt that the defendant punched her in the face without provocation. I further accept that as a result she sustained serious injuries requiring surgery, and further that she has a permanent loss of smell as a result of the injury to her nose. I find beyond a reasonable doubt that she sustained a bodily injury as a result of the defendant’s assault. It is unnecessary for me to deal with the Crown’s argument that no weight should be given to the defendant’s evidence that it was the screen door that injured Ms. Willbond, rather than his fist. While it is true that the defendant did not put to Ms. Willbond during her cross-examination that theory as required by Brown v Dunne, I do not the find defendant’s evidence on that point credible. Her injuries were too severe to be consistent with a screen door banging her face.
47I accept Ms. English’s evidence and I find beyond a reasonable doubt that while she was in the hallway, during the shouting and yelling, that the defendant punched her. However, while she was observed to have had a mark near her eye, I cannot conclude on the basis of the evidence that she was injured by the blow. I accept Ms. Narbonne’s evidence and I so find beyond a reasonable doubt that during the scuffling in the hallway, that she was punched, however, there is no evidence of any injuries beyond minor bumps and bruising.
48I was asked by the Crown to consider the defendant’s driving and pursuit later in the evening as consciousness of guilt. I find it equivocal. Certainly he was aware, as was everyone that he was in breach of the conditions. He was aware of the outstanding assault charges from April 3, 2012, and probably aware that the commotion he had caused at Ms. Narbonne’s was likely to invite police involvement. When he was pulled over and told he was under arrest for assault, it is not entirely clear what he was hoping to avoid. It is difficult to say that his conduct in prompting the police chase was evidence in and of itself of his consciousness of guilt following the assaults on the three complainants.
Count # 4: breach of condition to abstain from communicating with Katie English. Section 145(5.1) CCC
Count #5: breach of condition to abstain from consumption of alcohol. Section 145(5.1) CCC
Count #6: breach of condition to keep the peace and be of good behavior. Section 145(5.1) CCC
49The defendant pleaded guilty to these counts. I find beyond a reasonable doubt that the defendant communicated with Ms. English several times between April 3, 2012 and June 3, 2012. They communicated by phone several times and saw each other face to face. I find beyond a reasonable doubt that he consumed more than two beers on June 3, 2012, and further that on his own evidence, he consumed at least a beer and a half on June 2, 2012, including a beer at his apartment before leaving for Carleton Place on June 3. I further find beyond a reasonable doubt that he breached the condition to keep the peace by virtue of the assaults on the complainants as well as the various driving offences and other offences arising from the pursuit in the morning of June 3, 2012.
Count #7: Failure to stop while being pursued by a police officer contrary to section 249.1(1) CCC.
Count #8: dangerous driving contrary to section 249(1) (a) CCC.
Count #9: assault on a police officer, Sgt. Klassen, with a weapon – a motor vehicle- contrary to section 267(a) CCC.
Count #11: operating a motor vehicle while over .08 contrary to section 253(1) (b) CCC.
50The defendant pleaded guilty to these counts.
51I am satisfied beyond a reasonable doubt that the defendant’s failure to stop while being pursued was as described by OPP Cst. Whiting, OPP Cst. Skillen, and Sgt. Klassen. I am satisfied beyond a reasonable doubt that the defendant’s driving which included speeding, crossing both lanes and colliding with the shoulder, failing to obey traffic signals, ignoring the roadblock and ramming various police vehicles was a marked departure, and constituted dangerous driving.
52I am also satisfied beyond a reasonable doubt that the defendant’s actions in twice ramming S