R. v. Duperron, 2016 ONSC 550

CITATION: R. v. Duperron, 2016 ONSC 550

COURT FILE NO.: 14-99

DATE: 2016/01/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MELISSA DUPERRON

Matthew Collins, counsel for the Crown

Ian Paul, counsel for the Accused

HEARD: January 18 and 19, 2016

REASONS FOR JUDGMENT

LACELLE, J.

Overview

1Melissa Duperron is charged with having disfigured Frederick Sherman on July 3rd, 2013, and thereby committing an aggravated assault.

2This was a brief trial. The complainant was the only witness who gave viva voce evidence. The court also received an agreed statement of fact setting out the history of an injury to the complainant’s eye. That evidence indicates that when Mr. Sherman was 5, his left eye was injured by a tent peg thrown by a sibling. By 2003, he was diagnosed as being completely blind in his left eye. Over time, due to the injury and the build-up of pressure in the eye itself, Mr. Sherman’s left eye bulged, and became noticeably larger in size than his right eye.

3Mr. Sherman was 30 years old when he testified. He indicated that he and the accused were in a common-law relationship for some years between 2008 and 2013. In cross-examination he agreed he was mistaken, and the relationship ended in 2012. While the relationship was on and off again during that time, they resided together for at least 3 years. At one point, they had been engaged and planned to marry. The relationship ended, however, in 2012, after Mr. Sherman committed on assault on Ms. Duperron. He was convicted of that offence in March of 2012, and received a probationary disposition.

4Following their break-up, the couple remained on relatively good terms. In the months preceding the alleged offence, they would regularly communicate with each other over Facebook, and talked on the phone.

5Mr. Sherman also remained on good terms with Ms. Duperron’s mother, Natalie Duperron. At the time of the alleged offence, he was living with Natalie Duperron, her daughter Izzie, and Natalie Duperron’s common-law partner, because he had been invited to do so by Natalie Duperron. Mr. Sherman explained this was because she wanted help with her daughter Izzie.

6On July 3rd, 2013, Mr. Sherman was contacted by the accused who wanted to know if she and her new boyfriend, Mr. Jarvis, could come over for a visit. They arrived at about 12:30-1:00 p.m., at which time Mr. Sherman was on his laptop in the kitchen. At some point after their arrival, Mr. Sherman and the accused got into an argument about their past. They called each other names. Subsequently, Mr. Sherman took his laptop and his coffee and went to sit in a rocking chair in the living room of the residence. The accused called him a “goof” as he sat on the chair, and he called her a “slut”.

7At this point, it was Mr. Sherman’s intention to calm down and play a game on Facebook. But then the accused, without any further comments between them, walked over to him from the couch, and punched him on his glasses at his left eye. The punch was to the corner of his left eye.

8Mr. Sherman said he did not try to get out of the chair, that he just moved his head to the right a little bit to try to get out of the way.

9Following the punch, a liquid came out of Mr. Sherman’s left eye that was warm and watery. It was followed by blood.

10Seeing the blood, Mr. Sherman got up and went to the bathroom, while the accused went to get a cloth. The accused gave him the cloth and told him to lay down, and that it would be all right. Mr. Sherman told her it would not. Eventually, a call was placed to 911 by Natalie Duperron’s common-law partner.

11About 45 minutes after the punch occurred, and just prior to paramedics arriving, Mr. Sherman started to experience pain. He rated that pain as a 10 on a scale of 1-10, with 10 being the highest level of pain.

12Ultimately, Mr. Sherman was taken to emergency, and surgery was performed. Ten stitches were put in to close his ruptured eye. The stitches did not hold well following the surgery, and the complainant continued to experience significant pain. Mr. Sherman was referred to a specialist at the Ottawa Eye Institute, Dr. Jordan. According to Mr. Sherman, Dr. Jordan indicated that he could fix the eye as it was, but there would be no guarantee it would not rupture again. Alternatively, he could have the eye removed. Mr. Sherman opted to have the eye removed, and the surgery occurred that same week. Four to six weeks later, Mr. Sherman received a prosthetic eye.

13With respect to the previous condition of his eye, Mr. Sherman said that his eye had bulged from the time he was 7 until he was 28, and the alleged assault by the accused occurred. He wore bullet proof glasses so that nothing would damage his left eye. It would occasionally pain him and cause him discomfort, but he could generally sleep that off. He had episodes like this a few times during the relationship with the accused.

14He had discussed his eye with the accused on numerous occasions throughout their relationship. He said that his eye was bulging when they met, and eventually came to bulge a little more during their relationship. He recalled that the couple had discussed his bullet proof glasses, and used to joke about them.

15Prior to the events of July 3rd, 2015, Mr. Sherman was investigating the possibility of having the left eye removed, and had an appointment with a specialist for an opinion as to the advisability of that procedure scheduled for that September. He had not decided on the procedure, however, and had no date set for that surgery. He explained that before the assault upon him, the eye had not been removed because his doctors were trying to save it.

16Mr. Sherman said that he did not report these events to police until August 12, 2013, because he did not want to get the accused in trouble. He says she had asked him not to report it. He further indicates that while he initially told the paramedics who treated him at the scene that he had sustained the injury after slipping on a toy and falling on a bike, he did so because this story had been suggested to him by the accused.

The issues

17It is trite law that the Crown must prove each and every element of any offence charged against an accused beyond a reasonable doubt as that term has been defined in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. That standard also applies to the issue of credibility.

18There are many principles of law that apply in this case, which I consider, but will not review in my reasons given the narrow issues to be decided in this particular case. The primary issues litigated in submissions before me was whether the accused had assaulted Mr. Sherman as he alleged, and whether that act caused him to be “disfigured” as that term has been defined in the legal authorities.

19In this case, where an aggravated assault is alleged by disfigurement, the Crown must prove the following:

(1) There was an intentional application of force by the accused without the complainant’s consent;

(2) A reasonable person in the position of the accused would have foreseen that striking the complainant’s left eye would subject him to the risk of bodily harm; and

(3) The assault upon the complainant caused him to be disfigured.

Issue #1: Did the accused intentionally apply force without the complainant’s consent?

20The defence argues that the court should be left with a reasonable doubt about how the injury to the complainant occurred, because the complainant is not credible, or reliable. He urges an acquittal should be registered because the Crown has not succeeded in proving that the accused assaulted the complainant as he alleges.

21The defence argues the complainant is not credible for a number of reasons, and I will address them in turn. First, the defence argues the complainant was inconsistent in his evidence about how he moved in anticipation of the blow. I accept the complainant’s explanation of his statement to police about trying to block the blow, that is, that he thought he could do so with his head, which is consistent with his evidence before me that he moved his head slightly to try to avoid the blow. I accept that this slight movement as a way to block the blow made sense to him, even if others might have reacted differently. I do not agree that the slight variations in the testimony and statements by the complainant on this issue amount to an inconsistency of any significance.

22The defence also points out that the accused has been inconsistent about the nature of the blow by the accused. The complainant described it in his original statement to police, at the preliminary hearing, and at trial as a punch with a fist. However, when speaking with a police officer a few months after his original statement to police, he allowed the blow might have been a slap, and that he was not sure if it was a slap or a punch. In the circumstances of this case, this discrepancy in his evidence does not undermine his evidence that he received a blow at the hands of the accused. Save for his initial disclosure to the paramedics, which he readily admitted before me was a lie, he has been consistent that it was the accused who caused the blow to his eye. There is no evidence to the contrary.

23In the circumstances of this case, I do not find that the complainant’s initial account to paramedics is sufficient to undermine his credibility about being assaulted, and by whom. I accept his explanation for why he lied at the time. On this point, I note that I was impressed with the presentation of Mr. Sherman during his evidence. He was a very measured witness, who readily admitted unflattering behaviour, and was not prone to any kind of dramatization or exaggeration. There was no hint of any animosity toward the accused in the tone or substance of his evidence. On this record, given the prior relationship between the parties and the fact that they were on good terms before these events, I am not surprised that the complainant would have made up a story to explain his injury because he did not want to get the accused in trouble, and that he delayed his reporting to police for that reason.

24The defence suggests that the timing of the accused’s complaint is suspect because it coincides with the complainant learning that the accused was pregnant. Mr. Sherman denied that this motivated his complaint, which he had previously indicated was precipitated by a threat made to him over Facebook by the accused’s new boyfriend. I have only Mr. Sherman’s uncontradicted evidence on this issue, and I accept it. As indicated previously, I observed no signs of animosity by Mr. Sherman toward the accused during his evidence, and there is nothing else in the evidentiary record to suggest he had a motive to falsely implicate the accused. If anything, his delay in reporting and his false story to the paramedics indicates that he was willing to lie to protect her interests at one point in time.

25I have carefully considered the arguments advanced by the defence suggesting the complainant is neither sufficiently reliable or credible in his evidence to be believed. I find that he was not inconsistent on any material issue. I also do not agree that the complainant demonstrated a shifting or evolving memory that necessitates a finding that his evidence is so unreliable as to be unable to sustain a conviction. The complainant appeared genuine in his admissions that he had been unsure about the mechanics of the blow at one time, and how he put the facts together to arrive at the conclusion that he was punched. While this shifting in his account leaves me with doubt as to the precise mechanics of the blow he sustained, it does not leave me with any doubt that the accused struck him in his left eye with some force.

26As explained above, from the time he decided to report these events to police, the complainant has been consistent in the core of his account of how the injury occurred. He gave detailed and cogent evidence about the events of July 3rd, and following. I also do not agree that he was careless with the truth in any way when he testified before me. I agree with the Crown that some of the issues highlighted by the defence, for instance his use of the language “at this point” when describing the certainty of his memory to police, arguably reflects the manner in which this unsophisticated witness expresses himself, and not the carelessness suggested by defence. As I have indicated, I was impressed with the manner in which the complainant gave evidence.

27As to whether the accused’s blow was a punch or a slap, on this record, that issue is of diminished significance and not an essential finding. The intentional application of force of any kind without the complainant’s consent would satisfy this element of the offence. At the end of the day, I am satisfied beyond a reasonable doubt that the accused struck the complainant’s left eye area while he was wearing his glasses. The Crown need prove nothing more.

28With respect to the issue of the complainant’s lack of consent to the assault, the facts presented in this case admit no other conclusion. While the complainant and the accused had been engaged in a verbal argument, there is no evidence of any kind of utterance or behaviour that would suggest they had agreed to a consensual fight. The uncontradicted evidence of the complainant is that while he was sitting in a rocking chair, the accused came over to him and struck him in the left eye. There was no consent to this act.

29In summary, I am satisfied beyond a reasonable doubt that the accused intentionally applied force to the complainant’s left eye area, and that she did so knowing he did not consent to that force.

Issue #2: Would a reasonable person in the position of the accused have foreseen that striking the complainant’s left eye would subject him to the risk of bodily harm?

30The mens rea requirement for aggravated assault is objective foresight of the risk of bodily harm. The Crown does not have to prove that the accused actually intended the serious injury that resulted. The Crown must prove that a reasonable person would inevitably have realized that the assault in question would subject the person struck to the risk of bodily harm. This is a modified objective standard, and the reasonable person must be put in the circumstances the accused found herself in when the events occurred in order to assess the reasonableness of the conduct: see R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484 at 485; R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, and R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3.

31I am satisfied beyond a reasonable doubt on the evidence presented that Ms. Duperron had objective foresight of the risk of bodily harm. She had been the complainant’s partner for a significant period of time, during which time his eye both bulged, and occasionally caused him pain. She was aware that he wore bullet proof glasses. Even without her knowledge of the pain the eye had caused him, and the fact that he wore bullet proof glasses, the photos of the condition of the complainant’s left eye prior to the events of July 3rd, 2013, leave no doubt that if the complainant sustained a blow to that eye, of any kind, he would be at risk of bodily harm. That risk was arguably increased by the fact that the complainant was wearing glasses. Accordingly, whether the blow here was a slap or a punch, I find the risk of bodily harm was foreseeable to the reasonable person.

32I find that the Crown has proved this element of the offence.

Issue #3: Did the assault upon the complainant cause him to be disfigured?

33The term “disfigure” is not defined in the Criminal Code. Black’s Law Dictionary, Tenth Edition defines “disfigurement” as “an impairment or injury to the appearance of a person or thing”. Watt’s Manual of Criminal Jury Instructions, Second Edition, suggests that juries be instructed that “[t]o “disfigure” means to deform or deface.”

34The term “disfigure” has also been interpreted in several cases. In Regina v. Innes and Brotchie, [1972] B.C.J. No. 648, the term was found to denote “something more than a temporary marring of the figure or appearance of a person.” The court further explained at para. 22:

For example, a black eye mars the appearance of the person who suffers it, but in a short time it disappears and no lasting mark is left, and I do not think that the word “disfigure” in s. 228 is intended to include the causing of such an injury as a black eye. It is otherwise where the injury is the cutting off of an ear or nose or the slitting of a nose or the causing of permanent scar on the face by throwing acid.

35In R. v. R.J.C., [2005] N.B.J. No. 574, Ferguson J. held:

In my view, a disfiguring injury is one that takes into consideration a number of factors including:

1. What is the type of injury involved in quantum terms? Is it a major injury or one that is difficult to observe?

2. What area of the body has been affected? Even a small injury of the face will likely much easier qualify as disfiguring than the same injury to the underside of a hand or finger, they being the parts of the body which are often injured and subject to minor scarring throughout our lives.

3. Is the injury temporary in nature? Disfigurement has, by its very nature, some permanency to it. While it need not be a completely permanent injury it must, in my view, be an injury of the sort that precludes from its definition those kinds of injuries that a reasonably healthy person would expect, given the part of the body affected, to resolve in a reasonable healing period. If the healing period extends beyond that period to what a reasonable person would consider lifestyle altering, even in the medium term, that, too, ought to be taken into consideration.

4. Whether the injury is of a temporary nature and thus not disfiguring to the particular part of the body affected is, as well, a consideration. Our common experience teaches us that an open cut of five centimetres in length to the forearm and upper arm, for example, will completely heal in a reasonably healthy person more quickly than an injury to the palm of the hand of the same magnitude, which is an instrument of our body that we use constantly in our daily lives. Those factors lead me to the conclusion that the injury must be more than temporary.

36This reasoning was adopted in R. v. A.P.P., [2008] O.J. No. 1584 by Cole J., who held at para. 70 that “it is sufficient to equate disfiguring to permanent defacing or deforming. It connotes something beyond the passing characteristics of bruising or abrasion”.

37I reject the suggestion by the defence that one cannot disfigure that which is already disfigured, a proposition which is not supported by any authority. I find that the assault upon the complainant ruptured his eye, something which had not occurred since the original injury he sustained as a child. The assault led to the loss of his left eye, and its replacement with a prosthetic one. While there is evidence that the complainant was considering surgery to remove the eye at the time of the assault, I find that but for the accused’s assault upon him, the complainant may or may not have elected to have his left eye removed. He had been functioning with the eye as it was for over 20 years. Because of the assault upon him, he effectively lost that choice. The assault upon him caused him to lose his eye as it existed prior to that event.

38This is manifestly not a temporary injury. It is an injury to a prominent area of his face and its aftermath remains visible for all to see. The injury has affected the complainant’s appearance in a permanent way. The subjective assessment of whether his appearance has improved as a result of the loss of the eye and its replacement with a prosthetic one is irrelevant here. The fact remains that his appearance was fundamentally altered by the assault. Further, the injury caused by the assault was a painful injury, and caused the complainant extreme pain at the time of the assault, and during the subsequent treatment of the injury. I find that the complainant was disfigured as a result of the assault upon him.

39In arriving at this conclusion, I am mindful that the blow administered by the accused likely would not have produced an injury of this magnitude to someone without a pre-existing eye injury. However, the criminal law has long maintained the “thin skull” principle, and an accused must take his victim as he finds him.

40As indicated above, the victim’s vulnerability to significant pain and injury if struck in his left eye would have been clear to any reasonable person. While I do not believe that Ms. Duperron intended the consequences of her assault, this is not an element of the mens rea for the offence that must be proven beyond a reasonable doubt, and I am satisfied beyond a reasonable doubt that she had the requisite mens rea for this offence.

41The Crown has met its burden with respect to each element of the offence. Accordingly, Ms. Duperron will be found guilty as charged.