ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 471/14
DATE: 20151117

B E T W E E N:

HER MAJESTY THE QUEEN

C. Presswood, for the Crown

Respondent

• and -

LUKASZ WOJCIK

V. Cojocaru, for the Appellant

Appellant

HEARD: October 13, 2015

REASONS FOR JUDGMENT

[On appeal from the decision of Schwarzl J.
dated July 10, 2014]

André J.

[1] Mr. Wojcik appeals his conviction and sentence on the charge of assault. He submits that the learned trial judge erred in his application of the case of R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, that he misapprehended the evidence and the law relating to the defence of de minimis non curat lex, was unfair in his treatment of Mr. Wojcik, and exceeded his jurisdiction by imposing a restitution order as part of his sentence. The Crown counters that the trial judge applied the correct legal test in finding Mr. Wojcik guilty, fairly assessed the evidence, and acted within his jurisdiction when he ordered Mr. Wojcik to pay restitution as part of his sentence.

SUMMARY OF THE EVIDENCE

Linda Plourde’s Evidence

[2] On July 31, 2013, Ms. Plourde and Mr. Wojcik, who had been in a relationship for approximately 11 months, had been out running errands. They returned home at approximately 2:30 p.m.

[3] Mr. Wojcik was scheduled to work at 4:00 p.m. and was going to be late for work; he asked if he could borrow Ms. Plourde’s car despite the fact he was a suspended driver. Ms. Plourde did not permit him to borrow the car but offered to drive Mr. Wojcik to work. He declined that offer.

[4] Mr. Wojcik became upset as he looked at the bus schedule on Ms. Plourde’s computer; he “closed the computer, snapped it down with force” and it seemed to Ms. Plourde that his personality changed. Mr. Wojcik grabbed her by her shoulders, pushed her down onto the couch and told her the relationship was over if she did not give him the keys.

[5] Ms. Plourde threw the keys on the couch and left the home through the back door. She proceeded to a pathway in a nearby park. Ms. Plourde turned and saw Mr. Wojcik come out of the house and after telling him she was afraid of him, she started to run. Mr. Wojcik started to chase her.

[6] As Ms. Plourde ran away from Mr. Wojcik, he caught her and grabbed her from behind, using both of his arms. She employed a self-defence technique and dropped onto the ground.

[7] Mr. Wojcik had his arm around Ms. Plourde’s neck and uttered “You’re done, you’re finished”. Ms. Plourde then heard a male voice call out for Mr. Wojcik to let her go. He released her neck at that point.

[8] Ms. Plourde contacted the police; Mr. Wojcik went back into the house.

Damien Fernandes’ Evidence

[9] On July 31, 2013, Mr. Fernandes was taking his two dogs for a walk in Settler’s Green Park. He was walking up a hill in the park when he heard, “You’re fucking done, you’re finished”.

[10] Mr. Fernandes saw Mr. Wojcik with a choke hold on Ms. Plourde; it appeared that Mr. Wojcik was pulling her down, and dragging Ms. Plourde with his arm under her chin choking her.

[11] Mr. Fernandes told Mr. Wojcik to let go. Mr. Wojcik responded by saying, “don’t worry she’s crazy” and that Mr. Fernandes should keep going. Ms. Plourde asked for help and the police were called. Ms. Plourde spoke with the 911 operator and Mr. Wojcik left.

Mr. Wojcik’s Evidence

[12] Mr. Wojcik and Ms. Plourde were running errands and an argument over money began. He withdrew some money from the bank and gave it to her and then went home to get ready for work. Ms. Plourde remained at the Meadowvale Town Centre in Mississauga.

[13] He examined the bus schedule using Ms. Plourde’s computer because his shift at a restaurant at the Square One mall began at 5:00 p.m. Ms. Plourde arrived home and appeared angry and upset. She was yelling at him. He was frustrated because he was not told a specific amount of money he had to give to her.

[14] Mr. Wojcik continued to be frustrated and angry as he was being yelled at “for no reason”. He offered more money but was still yelled at and called names. He asked Ms. Plourde to borrow the car but she told him he could not take it.

[15] Ms. Plourde went out the back door and through the backyard to the park. It was hazy and kind of damp outside. It was getting chilly. Mr. Wojcik closed the computer, shut it down and went to bring Ms. Plourde into the house.

[16] Mr. Wojcik denied hitting the computer and testified that it was not broken when he closed it. He did not know what Ms. Plourde was wearing. He approached her outside, trying to calm her down, but she continued to yell at him and call him names.

[17] Ms. Plourde turned to run and she slipped and fell. She was running at a fairly high speed and he was a few feet away. Mr. Wojcik approached her, knelt down and put his arms around her abdomen and chest to try and calm her down. Ms. Plourde told him to “screw off” and squirmed away. As she was getting to her feet, Mr. Fernandes arrived.

[18] Mr. Wojcik was frustrated and he left and went back to the house to get ready for work.

TRIAL JUDGE’S DECISION

[19] Justice Schwarzl provided his reasons following closing submissions from Mr. Wojcik’s counsel. He declined to hear submissions from the Crown.

[20] Justice Schwarzl indicated that he was required to assess the evidence as a whole; rather than piecemeal. He indicated that where the defendant testifies, as in the case before him, he had to apply the following test:

[I]f I believe Mr. Wojcik I will acquit him because I accept his evidence. If I do not believe him, but his evidence could be reasonably true or otherwise raises a reasonable doubt, I must still acquit. Even if I utterly reject his evidence and it does not raise any reasonable doubt, I still must acquit him unless the balance of the evidence proves his guilt beyond a reasonable doubt.

Reasons for Judgment, July 10, 2014, at page 134.

[21] The trial judge then assessed Mr. Wojcik’s defence. He noted that Mr. Wojcik had denied choking Ms. Plourde; that he had simply hugged her after she slipped and fell in the park. He noted that Mr. Wojcik’s version of events was contradicted by the evidence of Ms. Plourde and Mr. Fernandes. He concluded that any inconsistencies between the evidence of the two Crown witnesses were immaterial: see Reasons for Judgment, at page 134.

[22] The trial judge found Mr. Fernandes to be a reliable witness whose testimony corroborated Ms. Plourde’s testimony that Mr. Wojcik had choked her: see Reasons for Judgment, at page 135.

[23] Regarding Ms. Plourde’s evidence, the trial judge indicated that:

Many elements of the accused’s testimony were never put to the complainant. For example, the argument over money while on errands; going home separately; Ms. Plourde calling him names not only in the house, but out in public. These statements were germane to the complainant’s state of mind and attitude. His failure to put these statements to her, as was expected, in law raises, in my view, concerns about the quality and reliability of his testimony.

I do not believe the accused and his evidence does not raise a reasonable doubt. Where his evidence regarding the events in the park differ from the complainant, I accept her evidence on the central issues without reservation, confirmed as they were by Mr. Fernandes, who was in a perfect position to see things unfold as they truly did in an unbiased, clear and fair fashion.

Reasons for Judgment, at page 136.

[24] The trial judge added at page 136 that:

There was no ambiguity on the facts that I found and with the nature and quality of what the accused did to Ms. Plourde. The accused did not believe he had her permission to apply a consoling touch as a gesture of reconciliation for a fresh disagreement between them. He was angry. He attacked her. He violently tried to choke her, stopping only when an unexpected passerby came on the scene and witnessed this vicious assault.

[25] The trial judge then assessed whether the principle of de minimis non curat lex exonerated Mr. Wojcik. He concluded that it did not. He provided the following reasons for his conclusion at page 136 of his Reasons for Judgment:

The fact that there were no injuries and the pressure on the complainant’s neck lasted for only 5 to 10 seconds do not diminish the seriousness of the event, which included applying a choke hold with enough pressure to start to interfere with the complainant’s breathing.

SENTENCE

[26] The trial judge sentenced Mr. Wojcik to 70 days custody to be served intermittently, and gave him credit of 12 days for the 8 days he had spent in pre-trial custody. He also sentenced him to 18 months’ probation and ordered him to pay restitution of $600 to Ms. Plourde. He also imposed a DNA order and a weapons prohibition order pursuant to s. 110 of the Criminal Code.

(Decision continues verbatim exactly as in the source judgment.)

André J.

Released: November 17, 2015