R. v. M.L., 2015 ONSC 696
COURT FILE NO.: CR-12-31
DATE: 2015/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.L.
Wayne McDermid, for the Crown
Donald W. Johnson, for the accused
HEARD: October 14, 15, 16 and 21, 2015; January 8 and 9, 2015
Leroy, j.
reasons for judgment
Introduction
[1] The protagonists were in a relationship between September 2008 and sometime between March and May 2010, approximately 19 to 21 months. The complainant, C.M., is 30 and the accused is 58. Ms. C.M. said she completed Grade 12 but does not recall the year. She gets by on the benefits of her Ontario Disability Support Pension. She is intellectually disabled. The accused completed Grade 9 and earned his living until 2010 driving vehicles that included taxis, delivery trucks and lastly tractors, driving between destinations in Canada and the United States. He is now in receipt of Ontario Works and cites arthritis, pinched nerves in his neck and glaucoma in his right eye as incapacitating him from pursuing the only skill set he has.
[2] Mr. M.L. was separated and living in the bunk of his tractor when he met Ms. C.M.. Ms. C.M. was living with S.T. who is intellectually disabled.
[3] Their meeting venue was the Tim Hortons located in the East Court Mall in Cornwall’s east end. It is frequented by a large group of people similarly situated to the protagonists. Some, including Mr. M.L., have motorcycles. There is a large public parking area where people lounge, drink coffee, smoke and gossip. If the protagonists and E.F. are representative, the group is exemplified by rotating serial monogamy and ephemeral loyalties. Ms. C.M. was a member of the group for some time. Mr. M.L. joined in 2008.
[4] The commencement of their conjugal relationship is illustrative. Ms. C.M. and Mr. S.T. were arguing and it carried over to their daily attendance at the Tim Hortons, he threw his cell phone and departed. She departed with the accused on his motorcycle. She stayed with him overnight in the tractor bunk and they were a couple. The complainant attended at the police station to report the “assault” discerned in the phone throw.
[5] Ms. C.M. smoked marijuana to replace cigarettes through this relationship. She claimed the accused did as well. That assertion is belied, at least until the end of 2008 by the fact that Mr. M.L. did not fail regular drug testing required by his employment.
[6] E.F. is a central catalyst. He and Ms. C.M. were together as a couple when the trial began. He is estranged from the accused and this prosecution nourishes Mr. E.F.’s vicarious vindication.
[7] Ms. C.M. is not a stranger to deception. She deceived Ontario Works about her living situation with the accused in 2008 by withholding the fact of cohabitation and she was living with him on the road between September and December 2008. Her application for ODSP benefits was crafted with the guidance of Mr. E.F. who apparently knew the requisite responses to the application questions to achieve benefit approval.
The Charges
[8] There are five counts, all in the domestic assault genre. She alleges he assaulted her with a dresser between October 1 and 15, 2008 when they were arguing about laundry and folding clothing. She alleges that sometime between January 1 and the 30, 2009, he assaulted her with a piece of broken mirror after she broke it. It is alleged he sexually assaulted her between May 1, 2009 and February 28, 2010. She alleges he assaulted her with a Sawzall and plastic chairs between October 1 and 31, 2009. She alleges he confined her as a component of a sexual assault in February 2010.
[9] The occasion to disclose emanated from an incident between the accused and E.F. incubated at the East Court Tim Hortons in October 2010. Mr. M.L. complained to police that E.F. threatened him. The police spoke with a few members of the assembly and did not verify the threat. Ms. C.M. was one who came forward. She expressed her wish to speak to the police and did. She gave a 2 hour and 10 minute video recorded statement on October 11, 2010 and a 1 hour and 40 minute video recorded statement on October 26.
The Apartment
[10] When this relationship began, neither had a fixed address. The complainant’s most recent connection to a fixed address derived through Mr. S.T. and his ODSP address. On separation, she was without a source of income. Although Ontario Works or a disability pension award would remedy that deficiency, she needed a fixed address to qualify.
[11] Mr. M.L. knew of, what can only be described as a hovel, above the motorcycle shop on Cornwall Centre Road where he serviced his motorcycle. It was uninhabitable in September 2008 when Ms. C.M. paid the rent in the amount of $300.00. The roof leaked and there was water damage to the walls. For context, they were forced to vacate this apartment in May 2010 when it was condemned.
[12] There is dispute about when they might have first stayed in this apartment overnight. Ms. C.M. testified they moved their belongings into the apartment in October 2008 and that would have been the month when they stayed overnight for the first time. She testified in the preliminary inquiry to moving into the apartment in September 2008. Mr. M.L. said he did not stay in the apartment until near the end of December 2008. He enjoyed the peripatetic lifestyle living in the tractor bunk one-half of the time in the American south where it was warm and was uninterested in an apartment in Cornwall. He conceded to assisting with roof repair in November 2008 saying the place was uninhabitable so long as the rain poured in. He recalled that E.F. laid some carpet in December and they moved their belongings in two weeks before Christmas 2008. He said the apartment needed to be painted and the furniture was stored in the middle of the living room until they painted the walls.
[13] I will review the allegations in chronological order.
The Laundry Incident – October 2008
[14] This incident would have occurred within one month of the genesis of the relationship. Ms. C.M. said the accused delivered her to the Laundromat at 10:00 a.m. with ten large garbage bags of clothing. She said he departed for the Tim Hortons and took the laundry soap with him. She had neither money nor soap. Coincidently, E.F. attended with a small laundry and gave her enough soap for two loads.
[15] The accused returned within the half hour and chastised her because the laundry was not done. He departed again. She said she persevered and worked away at the ten bags of laundry until 10:00 p.m. She confirmed to having smoked marijuana during the day. During those 12 hours, she did not have time to fold the clean clothing. E.F. confirmed eleven or twelve garbage bags of laundry and what he depicted as the accused’s “hissy fit” on his return. He recalled Ms. C.M.’s request for soap.
[16] Mr. M.L. contests context. He recalls taking Ms. C.M. to the Laundromat to do laundry. He denies having ever accumulated ten bags of laundry. He says one bag per laundry. They were living in the truck and did not own that quantity of clothing. The tractor bunk did not have that much space. It was their practice to buy dispensed laundry soap at the Laundromat.
[17] She said by then they were in the furnished apartment and on her return to the apartment they argued over laundry folding and proper storage in the stacked chests of drawers in the bedroom. She said he lost his temper and slid the top chest of drawers on top of her striking her left shoulder, torso and leg. He then picked the chest up and replaced it. She said she suffered a small cut on her chest and left leg. She threatened to call the police. She said he shut her in the bedroom and called E.F. to attend and calm her down. E.F. recalls receiving a phone call at 2:30 a.m. and attending but could not fix a date. He observed they were angry and yelling at each other and said he observed the dresser half on the bed and half on the other dresser. His recall is different than Ms. C.M.’s. He did not observe injuries.
[18] During the preliminary inquiry, Ms. C.M. depicted the accused’s actions as picking the chest of drawers up and throwing it at her.
[19] The accused denied this incident. They did not occupy the apartment in October 2008. He acquired the second small top chest much later in the relationship. There was a television set on the dressers. It was not unusual to connect with E.F. and others in the early morning.
Mirror Incident
[20] Ms. C.M. testified to another confrontation in January 2009. She said there were items on the bed and somehow, unexplained, as she removed something from the bed, it struck and broke a mirror in the bedroom. She said the accused was angered by this and threw the broken piece of mirror at her from a distance of four to five feet. She recalls that it hit her, but is unsure about where on her body and suggested it might have been her right shoulder. She was uninjured and they departed for Tim Hortons shortly after. She did not recall if she smoked marijuana that day. She thought he apologized, but it was never discussed.
[21] The accused denied this incident. There was never a broken mirror. The only mirror in the bedroom was attached to the black set which remained intact until the end of the relationship.
Sexual Assaults
May and September 2009
[22] Ms. C.M. said that E.F. and his cohorts mocked Mr. M.L.’s penis size for some time at Tim Hortons. She said this disturbed Mr. M.L. and ensuing sexual performances were rougher than usual punctuated by comments about the adequacy of his penis size. The banality aside, the logic is lost on me. They had been together as a couple for many months and his penis size could not be an unknown.
[23] Ms. C.M. agreed on cross-examination that she went along with his overtures and her responses would lead him to believe she consented to sexual intercourse. She said she consented. That is a defence to sexual assault.
[24] The accused denied having ever forced himself on Ms. C.M.. He recalled that, of the two, she was the sexual aggressor.
[25] Ms. C.M. did not associate Mr. M.L.’s behaviours as sexually assaultive until the thought was introduced in response to a form she was given as part of the investigation.
October 2009
[26] They were salvaging copper. Ms. C.M. was tasked to cut the wire into sections with a plug-in reciprocating saw and was either doing it poorly or was using the wrong blades. She did not enjoy work. She wanted to stop and he did not. Initially, she said he threw the saw at her from a distance of 10-12 feet. She corrected that and said he could have been handing it to her. She caught the saw and was uninjured. She changed the blade and carried on.
[27] On cross-examination, Ms. C.M. estimated the distance between them at 20 feet and that she was walking away with her back to him when he threw it. At the preliminary inquiry, she estimated the distance to be 5-6 feet and depicted the exchange as pushing the saw towards her. She did not describe the walking-away motion.
[28] Mr. M.L. recalled the occasion. He agreed to Ms. C.M.’s incompetence with the saw. He concurs with her displeasure about having to perform a task. He owns the saw. It is industrial grade and he has never thrown it.
October 2009 – Birthday Party
[29] They were invited to attend a child’s birthday party. She said they were smoking marijuana, she wanted to attend and he did not. He instructed her to go alone, but was upset. The child’s mother asked her to take lawn chairs. On arrival, in the presence of the child’s mother, she alleges Mr. M.L. threw three plastic lawn chairs through the open sliding door of the van and one struck her.
[30] Mr. M.L. said he removed the three chairs from the vehicle, placed them on the ground and went to the Tim Hortons. He said she wanted him to take the chairs around to the back yard and was unhappy when he declined.
January 2010 - Dishes
[31] Ms. C.M.’s version: They were out for the evening and returned home around 2:00 or 2:30 a.m. They were not drinking alcohol. All their dishes were dirty. The accused asked her to clean up and she declined. He made the comment that there was no use in having dishes when they are dirty and began throwing them around. She said she was struck on her shoulder and right leg and a bowl narrowly missed her head. He instructed her to clean the ensuing mess and she declined. Tempers escalated and she tried to leave. He blocked her path and she pushed, he grabbed her shoulders, turned her around and pushed her through the wall between the living room and bedroom.
[32] After they settled, he expressed remorse and began to repair the wall damage using cereal box cardboard and drywall mud. Her father was scheduled to visit next day and they agreed to describe the repair as renovation.
[33] Mr. M.L. denied this incident. He said that he was responsible for cleaning the apartment and never asked Ms. C.M. to perform that task. He denied throwing dishes, grabbing her or pushing her into or through the wall. He did not throw her on the bed or restrain her in any fashion.
[34] Mr. M.L. recalled the repair work relative to the father’s visit. He reported that Ms. C.M. made a hole in the wall when she was intoxicated by alcohol and marijuana. He observed that her father badgered Ms. C.M. about her lack of responsibility so he agreed to perform the repair to avert another reprimand.
Lock Incident - Confinement
[35] Ms. C.M.’s version: She said he placed her in a room in the apartment in the context of a time out so she could compose herself and he locked her in with a hook and eye set that had been there from the penultimate tenant. He vacated the building for a while. By the time he returned, she was composed.
[36] Mr. M.L. denied this allegation. He said none of the interior doors in the apartment were lockable. The hook part of the hook and eye set was painted in and unusable.
Late January/Early February 2010
[37] Ms. C.M.’s version: Mr. M.L. suspected Ms. C.M. of a sexual encounter with E.F.. She denied, but he did not believe it. He insisted on sexual intercourse as evidence that she had not been with Mr. E.F.. She was uninterested, but resigned. Through this encounter, he offered the odious comparisons between his skill set and Mr. E.F.’s. She responded in his favour.
[38] On cross-examination, Ms. C.M. confirmed her agreement to this intercourse. During the preliminary inquiry, she recalled they partook in sexual intercourse for about one hour and she agreed to it.
[39] Mr. M.L. denied non-consensual sexual intercourse with the complainant.
February 20, 2010
[40] Ms. C.M.’s version: They were watching a television show about child disciplinary methods. They disagreed about methodology. She made the point that she did not plan on having children with Mr. M.L.. That upset him and he lightly touched her face with the back of his fingers. She determined to leave. Her bag was pre-packed but he pulled it from her hands. She walked out without shoes or coat. She planned to go to the Irving gas station and call for assistance. He followed in the van. She walked in the front of the van and he nudged her. He persuaded her to return home, they showered and went out for the evening.
[41] The accused denies this incident.
May 2010
[42] Their apartment was condemned in May 2010 and they had to vacate. After two nights in a hotel and argument about where to move, she left and stayed with E.F. and his then partner Melanie. When Mr. M.L. attended there to talk it over, they argued and she says he pushed her down the stairs, they started away in the van and she jumped out while it was in motion.
[43] Mr. M.L. says that he left the E.F. apartment alone after he observed Ms. C.M. and Melanie groping one another. He did not push her down stairs.
E.F.
[44] Mr. E.F. is 48, is in receipt of ODSP and testified for the prosecution.
[45] Mr. E.F. did not buttress the prosecution case. He is unscrupulous. He actually placed legal title to a motorcycle in Mr. M.L.’s name to either evade support issues with his ex-wife or to defraud the insurance company or both.
[46] The dispute between the accused and E.F. centered on the assertion that E.F. was C.M.’s drug supplier. Mr. E.F. denied that role.
[47] E.F. thrived in the role of intermediary while the protagonists were in the process of separating. He delivered the separation letter to the accused.
[48] E.F. has a criminal record engendered from post separation conflict with his spouse.
[49] If Mr. E.F. said anything probative and truthful it was happenstance.
Discussion
[50] The sexual assault counts have to be dismissed. Consent denudes the offence and the complainant assured the court their sexual relations were invariably consensual.
[51] The Crown theory is that the accused exploited the complainant. The age difference and her intellectual limitations are central to the theory. She is younger than his children. The Crown discerned a singularity in these incidents consistent with the perspective of controller and the controlled – adult and child.
[52] This theory fails to factor in the defendant’s intellectual limitations. His function is marginally, if at all, better than the complainant. He achieved Grade 9 and spent his working life driving, always on the financial margin. His best engagement involved north-south truck driving as an independent operator with a reliable broker, namely Konink, grossing in the range of $150,000 annually.
[53] In the years after 9/11, he operated state side on borrowed time. He has a criminal record and secured a waiver at will to enter the United States. The waiver was withdrawn in December 2008 when he was rejected at the border. The Crown determined to adduce evidence that the rejection was the result of another criminal charge and discharge disposition. I declined to hear that evidence. Little turns on it.
[54] The Crown submission is that no one would stand idly and accept the waiver seizure unless he knew it was for good reason. The defendant said he could re-apply but it would take time and by the time he re-acquired authority to enter the United States he would have lost the tractor for encumbrance default. He had expenses and had to drive to stay afloat financially. The defendant, as it is with owner-operators, paid insurance, maintenance, fuel and financing expenses of operation from gross proceeds. In the end, he was left with $3,500 from his years of driving.
[55] The complainant is the fulcrum of the Crown case. She is inexperienced, disabled, indolent and egocentric. Their relationship was not all that important to either. He offered the adventure of North American travel without expenses. She could sit in the truck free of the usual chores in life and rely on the accused. He would be significantly less appealing as a partner after the border incident. The implications, if not immediately obvious to her, were that they were relegated back to the reality of public assistance, resident in a hovel having to scrape by salvaging copper wire. As time passed, this union deteriorated into the same abyss as the others. She re-visited their arguments, no doubt in discussion with Mr. E.F. and likely others and could not help but modify each in ways that negatively depicted the accused and enhanced the complainant.
[56] Each incident lacks body. She portrayed the accused as gratuitously violent, insensitive, volatile, random and arbitrary. She portrayed herself as an innocent with no part in their domestic spats other than victimization.
[57] The complainant is oblivious to the impact of substance-induced indolence. With respect, the complainant does not enjoy life’s obligations. She doesn’t clean the house and she resents having to do laundry. She recalls two incidents over laundry. The laundry incident involved one bag of laundry. She got stoned and lost focus. It is impossible to credit reliability to her recall at 2:00 a.m. after smoking marijuana through the day. The other arose when she inexplicably broke a mirror while folding laundry.
[58] The W. (D.) check down determines this case. The accused’s perspective is minimally more reliable than the complainant. He is likely the person depicted by the Crown. At the end of their relationship, he was tired of her.
[59] My issue is that I have little confidence in much of what the complainant narrated. She was under the influence of E.F. from the date of disclosure onward. He is a manipulator and the complainant is easily manipulated. His animus to the accused was not concealed. He and Ms. C.M. are currently monogamous.
[60] The Crown submitted that there is enhanced credibility to her narrative because the allegations are not the sort that often comes before the court. That begs the question why. The easy answer is that we do not criminalize every petty domestic dispute especially when the parties don’t discern the features of assault at the time. If that were the case, every failed relationship would engender assault charges.
[61] Ms. C.M. was intoxicated when some of the asserted incidents are said to have taken place. In their minds, these events were so de minimis they didn’t even change their social schedule and went to the bar or Tim Hortons within minutes of what would be to others a significant confrontation. These conflicts grew in significance many months later when she chose to side with E.F.. E.F. is the catalyst.
[62] I am not persuaded the accused threw dishes at her or the wall or pushed or threw the complainant through a wall. She described a night at the bar. The accused said she was intoxicated. It is hard to credit her with reliable recall after she acknowledged pervasive marijuana consumption and the impact this had on her perceptions at 2:00 a.m. on any given day.
[63] The incident following the child discipline argument is inconceivable. She could not walk a mile in Cornwall in February without shoes without medical treatment. Instead, they went to the bar.
[64] With respect to the reciprocating saw incident, she was incensed at taking orders from the accused. The accused did not throw the saw at her. He certainly pushed it towards her with instruction to resume the job. She grabbed it and continued. Her uncertainty from time to time as regards the distance and motion used to return the saw to her undermines the allegation that he threw it at her.
[65] I can’t accept that she was confined in a room in that apartment. The accused’s explanation matches up with the context of the apartment – pure hovel painted many times. I am not persuaded that the hook and eye were useable. By that time in their relationship, failure, any authority he might have had as the senior person was spent. She was past playing that role if she ever did.
[66] With respect to the chairs, I accept that they were not getting along, that the accused did not want to attend the party and the complainant wanted him to carry them to the back yard. He very likely tossed the chairs out the side doors of the van. He was ejecting them from the van and any contact with the complainant was regrettable but unintentional. She said that Melanie observed the incident and could have provided some better perspective on what the two were experiencing. The complainant’s perspective is not persuasive of the intentional application of force.
[67] Neither protagonist has a presumption of veracity or reliability. The burden of proof beyond reasonable doubt on matters of substance and credibility rests with the Crown throughout. The defence is not required to prove innocence or anything.
[68] It is a he-said/she-said case. As with most such cases, the ambient circumstances can be aligned to support one side or the other. While I have some serious doubt about the accused’s veracity in some areas, the same serious doubt exists as to the complainant’s veracity and reliability to honestly portray the events as they unfolded.
[69] The Crown has not made a case against the accused to the requisite standard of proof beyond reasonable doubt, a standard closer to certainty than probability.
[70] He is acquitted of these charges.
Justice Rick Leroy
Released: February 12, 2015
COURT FILE NO.: CR-12-31
DATE: 2015/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.L.
REASONS FOR JUDGMENT
Justice Rick Leroy
Released: February 12, 2015