R. v. Wasilewicz, 2016 ONSC 6562
CITATION: R. v. Wasilewicz, 2016 ONSC 6562 COURT FILE NO.: 14-6414 DATE: 2016/10/25
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
DANIEL WASILEWICZ Accused
COUNSEL: John Semenoff, for the Crown Robert Carew, for the Accused
HEARD AT OTTAWA: April 4, 5, 6 and 8, 2016
REASONS FOR DECISION
PHILLIPS J.
1Daniel Wasilewicz stood trial over four days in April, 2016 on an indictment containing five counts. The charges run the gamut from assault, forcible confinement, mischief to property, choking, and theft.
2The complainant Madison Clarke and Mr. Wasilewicz met as high school teenagers in St. Catherines and commenced an exclusive relationship. It is clear that the relationship, while long-lasting, had its dysfunctions. In fact, in October 2013, Mr. Wasilewicz was charged with assaulting Ms. Clarke. Ultimately convicted, he was placed on probation with a term not to have any contact with her except with her consent. She gave her consent and the relationship continued.
3The events giving rise to this proceeding occurred on the night of March 29, 2014. By that point, the complainant had commenced studies at the University of Ottawa and Mr. Wasilewicz had essentially followed her here. In any event, on March 29, 2014 the couple went to a house party with friends after having enjoyed some alcohol and marijuana. There is conflict in the evidence as to whether the complainant was intoxicated, but it is clear that Mr. Wasilewicz was. Once back home late at night in Mr. Wasilewicz’s bedroom, the couple had a fight. It is alleged that things got extremely violent.
4As relayed by the complainant, she told him that she was sick of arguing while drinking and that they should talk about their issues in the morning when sober. Mr. Wasilewicz responded by jumping on her and insisting that she not go to sleep. She describes him as not looking like himself, instead looking like a monster. She wanted, therefore, to leave and tried to do so. Ms. Clarke testified that her efforts to leave the bedroom were thwarted by the accused, who kept pushing her both against the wall, onto the couch, or even onto the floor. At some point he left the room, to apparently pace around and otherwise express his anger in her absence. She took the opportunity to try to open the window to get out but then realized it was too small. She relates that during this period she was scared and hyperventilating. Ms. Clarke elaborates that when Mr. Wasilewicz came back into the room and realized that she had tried to leave through the window, he further lost his temper. He called her various insulting names and then pushed her to the floor. She started screaming. She relates that Mr. Wasilewicz then put his hands around her mouth so she could not breathe. He put his other hand over her nose. In the process, she says, his fingers were in her mouth and she was gagging. She described an escalating inability to breathe and a consequent escalating feeling of stress. Eventually, resigned to death, she ceased to struggle and began to feel herself fading away.
5At this point, Mr. Wolochatiuk, Mr. Wasilewicz’s roommate, knocked on the door. I accept Mr. Wolochatiuk’s evidence that he was motivated to do this because of all the noise the couple had been making. In any event, according to Ms. Clarke, this intervention essentially saved her life and allowed her to get up from under Mr. Wasilewicz.
6What followed was some time wherein Ms. Clarke recalls that Mr. Wasilewicz refused to let her leave the bedroom. This happened in the presence of Mr. Wolochatiuk. Eventually, Ms. Clarke ended up locking herself in a nearby bathroom in order to call a friend for help. It is alleged that Mr. Wasilewicz barged into the bathroom, assaulted her there and took her phone both to interfere with her use of it in calling for help and to steal it from her as a piece of personal property.
7Ultimately, Ms. Clarke was able to leave the house and ran onto the street and into a taxi. Police arrived soon thereafter. Ms. Clarke was cooperative, giving a statement consistent with the facts as outlined above. She was conveyed to hospital due to worries about a possible concussion where she was discharged after a few hours of observation.
8Less than a week later, police located and arrested Mr. Wasilewicz at his parents’ house in St. Catherines. Ms. Clarke was found hiding in his bedroom.
9No complainant is ever the one on trial. It is the Crown’s case that is on trial. Of course, the Crown’s case contains the evidence of the complainant. Necessarily, therefore, assessment of whether the Crown has proved its case beyond a reasonable doubt requires assessment of the credibility and reliability of the evidence of the complainant.
10The courts must be sensitive to the realities of allegations of violence occurring in the context of a domestic relationship. Behaviour and decisions made before, during and after an impugned event can only be fairly assessed if one keeps in mind that considerable emotions are at play. Conflict complicated by co-existence with affection understandably results in different reactions and general after-the-fact conduct than would conflict between strangers. Simply put, rational behavior is not always to be expected in the domestic violence context. As an example, I might propose that if a person is approached by a stranger on the street and assaulted, it would be inexplicably odd if that person were to endeavor thereafter to patch things up with the assailant and assist him in avoiding being held responsible. That same irrational result cannot be said to be similarly inexplicable when the parties are involved in a domestic relationship.
11I am also aware that an episode of violence between two people would be dynamic and chaotic and therefore impossible to later describe with precision. No one could possibly recall the exact order and methods of an extended incident of assaultive violence.
12All of that having been said, however, it is crucial to remember that this is a criminal trial. The Crown has the burden of proving all essential elements of each offence beyond a reasonable doubt. The threshold of proof beyond a reasonable doubt is not proof to a degree of certainty. No allegation could be proved to that level. However, proof beyond a reasonable doubt is closer to certainty than to mere probability. The idea that something probably happened is not good enough for the Crown. I must be satisfied of all essential elements beyond a reasonable doubt for Mr. Wasilewicz to be convicted of anything.
13I note that the alleged choking said to have occurred in the bedroom is relayed to the court solely on the evidence of the complainant. While some injuries to her body were observed by others later, none of those observations, in my view, substantiate choking, suffocation or related assault to mouth, nose, or neck. Since I must excise from consideration any hearsay iterations by the complainant to either Constable Agnessi or Jennifer Henderson about the choking allegation, I shall operate on the conclusion that that the only admissible evidence of the choking comes from the complainant.
14This is important because I have significant concerns with respect to the credibility and reliability of the complainant’s evidence when assessed on its own without corroboration. I find troubling the fact that she endeavored to attempt to deceive the administration of justice in St. Catherines by writing a dishonest letter to the authorities about the October 2013 incident then before the courts. I find troubling that she would use the threat of going to the authorities with information as a kind of mechanism of control over the accused, a technique she employed repeatedly and over a considerable period of time both in the St. Catherines matter and the case at bar. I find very troubling the fact that she lied under oath during the preliminary inquiry underlying this very trial (and had such a hard time admitting to it). Overall, I have a real concern that she is manipulative of the court process and has a demonstrated capacity to provide information as it suits her own purposes, rather that participating in the court’s truth-finding process as a fully honest witness. I decline to make any findings at the criminal proof standard on her word alone. To the extent that any count rests on her credibility, I am left with a reasonable doubt. I simply cannot trust her to the extent necessary to agree that the Crown has proven anything that rests solely on her evidence.
15The Crown’s allegation with respect to all that occurred in the privacy of the bedroom rests on the evidence of Madison Clarke. What went on inside that room is not corroborated by any admissible evidence that I accept. As stated, I just cannot trust her enough to found a criminal conviction on her word alone. Accordingly, based on those misgivings, Mr. Wasilewicz is found not guilty with respect to count 4.
16My analysis of the entire case, however, changes from the moment of the involvement of Mr. Wolochatiuk onward. I believe everything that man said in its entirety. He was a most impressive witness. He was careful in his evidence and readily agreed about what he did not know or remember. He did not exaggerate or shade his evidence in any way toward the interests of any party. At the material time he was stone sober and well positioned to see everything he testified about. Then and now he has no interest in the outcome. He is impartial, credible and reliable. I trust him absolutely.
17The offence of forcible confinement is defined in section 279 of the Criminal Code. That offence requires that the Crown prove each of two essential elements beyond a reasonable doubt. First, that the accused intentionally confined the complainant, and second, that the confinement was without lawful authority. The law is clear that to intentionally confine another person is to physically restrain that person contrary to her wishes, thereby depriving her of her liberty to move from one place to another. Confinement does not require any defined time period. Confinement is simply an unlawful restriction on liberty for some period of time. The essence of it is that an accused person must intend to restrict the complainant’s freedom to move about from one space to another and succeed in doing so, even if only temporarily.
18I accept the evidence of Mr. Wolochatiuk that when he knocked on the bedroom door that door ended up being opened by Mr. Wasilewicz. I accept that while Mr. Wasilewicz held the door open, he deliberately positioned his body in such a way as to prevent Ms. Clarke from exiting. I accept Mr. Wolochatiuk’s evidence that Ms. Clarke could be seen to have wide eyes and was panicked and a little bit disheveled. It is clear to me that she wanted out of the bedroom just as it is clear to me that Mr. Wasilewicz both knew that and wanted to keep her inside to unilaterally continue whatever it was that was going on. I accept the following excerpt of Mr. Wolochatiuk’s evidence from page 134 of the trial transcript as an accurate iteration of what unfolded:
Q: You - you’re using the term that she’s trying to get out. Was she having difficulty getting out of the room?
A: Dan was blocking her at that point, yes.
Q: What would - what was she doing that, you could see to try to get out and - and what was Dan doing to block her?
A: Well she was trying to get around Dan and at one point Dan, well he physically blocked her most of the time and then at one point he like actually picked her up and moved her back into the room using like physical strength.
Q: And - and when he doing that, if you could describe where she is when he’s using the physical strength to move her back in the room, and how he does that.
A: So if you were coming up on my left I believe it would be like a bear hug, as if I repositioned you further back in. So you’re trying to come through a door and then I like picked you up and put you back in.
Q: How long- how long does this behavior in terms of her trying to leave and him blocking her and then bear hugging her and putting her back in the room, how long does this behavior go on for?
A: I believe he only bear hugged her once, it wasn’t like a recurring - but he blocked her for more than two, less than five minutes. I couldn’t give you an exact time.
19I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Wasilewicz intended to physically restrain Ms. Clarke contrary to her obvious wishes and that he thereby deprived her of her liberty to move from one place to another. It would have been clear that she wanted out of that bedroom. Mr. Wasilewicz was doing what he deemed necessary to actively thwart her wishes in that regard. He had no lawful authority to confine her in any way whatsoever. She is an autonomous person with a liberty interest in moving about as she pleases. As such, I find that the Crown has succeeded in proving beyond a reasonable doubt that Mr. Wasilewicz committed an offence under section 279 of the Criminal Code when he kept Ms. Clarke in the bedroom like he did.
20I further believe Mr. Wolochatiuk when he tells me that Ms. Clarke eventually got out of the bedroom and locked herself in the bathroom. I believe him when he relates that he knocked on the door to inquire about her well-being, promising that it was only him and not Mr. Wasilewicz. I believe Mr. Wolochatiuk when he tells me that Mr. Wasilewicz had promised to stay in the bedroom. I believe Mr. Wolochatiuk when he tells me that Mr. Wasilewicz instead seized on the opportunity of the opening bathroom door to rush into the bathroom aggressively. As he put it, at page 140 of the trial transcript: “I started to go inside the bathroom and then Dan came flying out the bedroom and shoved me over and went into the bathroom with her.” Importantly, I believe Mr. Wolochatiuk when he relates that Ms. Clarke was standing up when she opened the door, but that Mr. Wasilewicz knocked her down to the ground and forcibly took her phone from her hand. I accept Mr. Wolochatiuk’s evidence that in knocking her to the ground, Mr. Wasilewicz caused injury to Ms. Clarke in the form of a cut to her forehead up near the hairline.
21Assault is defined in section 265 of the Criminal Code which directs that a person commits an assault when, without the consent of another person, he applies force intentionally to that other person directly or indirectly. I find the Crown has proved beyond a reasonable doubt that when Mr. Wasilewicz rushed into the bathroom and knocked Ms. Clarke to the ground he was applying direct force to her without her consent. The whole purpose of her locking herself in the bathroom was to avoid any further contact with Mr. Wasilewicz. Clearly, she wanted a cessation of any hostilities. Mr. Wasilewicz wanted otherwise, and his conduct in putting her to the bathroom floor is clearly an assault in the circumstances.
22Theft is defined in section 322 of the Criminal Code. For Mr. Wasilewicz to be found guilty of theft Crown counsel must prove beyond a reasonable doubt that he took property for his own use that belonged to Ms. Clarke. The question is: did he take the phone from her to convert it to his own use or for some other non-theft purpose?
23I find as a fact that Mr. Wasilewicz took the phone from Ms. Clarke in order to prevent her from successfully calling for help. There is no evidence that he ever intended to or ever did convert the phone to his own use as a piece of personal property. In plain English, I find that he took the phone from her so that she could not use it, not so that he could have it for himself. I have a reasonable doubt, therefore, with respect to whether Mr. Wasilewicz committed the offence of theft when he forcibly removed Ms. Clarke’s phone from her hand because I cannot find any evidence of intention on his part to convert it. I say this even though he appears to have taken it from her and away from the scene before disposing of it, thereby depriving her of its use for a considerable period of time.
24Mischief to property is defined in section 430 of the Criminal Code. That section directs that someone commits mischief who willfully obstructs, interrupts or interferes with the lawful use, enjoyment or operation of another person’s property. I am satisfied that the Crown has proven beyond a reasonable doubt that when Mr. Wasilewicz became aware that Ms. Clarke was on her phone, he wanted to interrupt her call. That is the only sensible inference that can be drawn from the aggressive manner in which he tricked his way into the bathroom and the prompt and violent way with which he took the phone from her hand. The thing is, that phone was hers and was therefore hers to use as she wished. It is clear that in taking it from her hand as he did, Mr. Wasilewicz was willfully interfering with or at least interrupting her lawful use of it. Mr. Wasilewicz is therefore guilty of mischief to Ms. Clarke’s property.
25I find Mr. Wasilewicz guilty of counts one, two and three. I find Mr. Wasilewicz not guilty of counts four and five.
Justice Kevin B. Phillips
Released: October 25, 2016
CITATION: R. v. Wasilewicz, 2016 ONSC 6562 COURT FILE NO.: 14-6414 DATE: 2016/10/25
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
DANIEL WASILEWICZ Accused
REASONS FOR DECISION
Justice Kevin B. Phillips
Released: October 25, 2016