COURT FILE NO.: CR-16-50000082-0000 DATE: 20170714 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANNA LA FORCE Accused

COUNSEL: Michael Wilson, for the Crown Raymond Boggs, for the Accused

HEARD: March 6 - 9, 2017 and April 21, 2017

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND

The Charges and Witnesses

[1] The accused, Anna La Force, now age 24, was charged on July 23, 2014 with aggravated assault, assault with a weapon and unlawful entry into a dwelling place (“the July 23rd incident”). The charges arise in relation to an attack by Ms. La Force on Allison Robinson, now age 23. The backdrop to the attack is a dispute between Ms. La Force and another woman, Luisa Botelho, now age 22, over a man, Cavin Banfield, now age 30. Ms. La Force and Ms. Botelho were in a relationship with Mr. Banfield at the time of the altercation. Ms. Robinson is a close friend of Ms. Botelho. The attack was at Mr. Banfield’s apartment at the rear of a convenience store at 2519 Eglinton Ave. W. where Mr. Banfield is the tenant. The entrance to the apartment opens onto an alleyway and parking lot.

[2] The Crown called Ms. Botelho, Ms. Robinson and the investigating officer, Officer Charlene Platte. A defence was called. Ms. La Force and Mr. Banfield testified for the defence.

[3] Depending on whose perspective one looks at the situation from, either Ms. La Force was Mr. Banfield’s ex-girlfriend or Ms. Botelho was. They take opposing positions on this. Ms. Botelho’s evidence is that she had been dating Mr. Banfield for several years before the July 23rd incident and that Ms. La Force at the time of the attack was Mr. Banfield’s ex-girlfriend. Ms. Robinson supports Ms. Botelho’s view. Ms. La Force however testified she had been in a relationship with Mr. Banfield for several years and was aware that he slept with other women during their relationship, including Ms. Botelho. But she insisted she was, at the time of the incident and still is his girlfriend.

[4] Ms. La Force testified at the time of the July 23rd incident she lived with Mr. Banfield at his apartment. She said she had been living there from the end of 2012 but did not stay there every night. Her evidence was that before she lived with Mr. Banfield and, when she did not stay with Mr. Banfield, she lived in the building next door at 2515 Eglinton Ave. W. with her mother and brother.

Whether a 2011 Assault by Ms. La Force Occurred

[5] Ms. Botelho and Ms. La Force were familiar with each other for several years before July 2014. They both describe a circumstance in about 2011 (“the 2011 incident”) where Ms. Botelho was at Mr. Banfield’s apartment with him and Ms. La Force arrived. This was the first time Ms. Botelho and Ms. La Force had met each other. They tell different stories about what occurred on that occasion. Mr. Banfield also gave his account of the 2011 incident.

[6] Ms. Botelho testified that she was with Mr. Banfield at the apartment one evening some time in 2011. There was a knock on his apartment door. According to Ms. Botelho Mr. Banfield told her not to answer the door. Ms. Botelho said they heard someone trying to kick the door in. It was Ms. La Force. She eventually kicked the door to his apartment down and entered. Ms. Botelho said the door literally fell on the floor. Ms. La Force started calling Ms. Botelho names like “bitch” and “whore”. Ms. Botelho said at that time she was not aware of a relationship between Mr. Banfield and Ms. La Force.

[7] According to Ms. Botelho, Ms. La Force began attacking her. Ms. La Force got on top of her. They were trying to fight each other off. Ms. Botelho first said Ms. La Force “bit her thumb off.” Then when the Crown queried this Ms. Botelho adjusted her evidence to say Ms. La Force bit her thumb deeply enough to expose the bone. Ms. Botelho said Mr. Banfield then interceded pulling Ms. La Force off of her.

[8] Ms. Robinson testified that she and Ms. Botelho were in high school in 2011. She confirmed Ms. Botelho’s evidence that Ms. Botelho had an injury on her thumb. She said Ms. Botelho came to school and showed her the wound and told her who had inflicted the injury. Ms. Robinson saw that the wound had stitches and observed that the thumb nail was peeling off. Ms. Robinson stated that she graduated in 2011 so the incident could not have happened after that.

[9] This is hearsay evidence normally excluded under the rule against prior consistent statements. However, I accept Ms. Robinson’s evidence as an exception to that rule to rebut the presumption of recent fabrication. I therefore allow Ms. Robinson’s evidence about the 2011 incident for that purpose and not for the truth of its contents. Ms. Robinson had not yet seen or met Ms. La Force by this time.

[10] Ms. La Force and Mr. Banfield also testified about the 2011 incident.

[11] Ms. La Force testified she went by Mr. Banfield’s apartment. Ms. La Force said she did not break down the door or knock it off its hinges. Her evidence was that when she saw Ms. Botelho there she simply asked her to leave and Ms. Botelho left peacefully. According to Ms. La Force, Ms. Botelho was okay with leaving.

[12] Mr. Banfield testified that an incident did occur in about 2011 at his apartment. He described it as the first time Ms. La Force caught him with Ms. Botelho. He said he was at his apartment with his friend and Ms. Botelho. He testified Ms. La Force arrived but she did not kick the door down or kick anything. He also said Ms. La Force asked Ms. Botelho to leave and she left.

[13] On cross-examination, Ms. Botelho was asked about having told the police on July 24, 2014 that the incident when Ms. La Force kicked in the door happened in 2013. Ms. Botelho was confronted with the fact that the police interview preceded her evidence at trial and should be more reliable. Ms. Botelho explained that she was telling the truth to the police but had just mistaken the years.

[14] Both Ms. La Force and Mr. Banfield recalled the incident where Ms. La Force caught Mr. Banfield with Ms. Botelho and the year was not clear in their evidence either. I am prepared to accept that Ms. La Force walked in on Ms. Botelho and Mr. Banfield and that it happened within a few years before the 2014 assault incident.

[15] The question is whether it was an uneventful incident as Ms. La Force and Mr. Banfield describe or a situation where Ms. La Force kicked the door down and attacked Ms. Botelho severely biting her finger. Ms. Botelho’s evidence is that this incident, in addition to other conduct by Ms. La Force, made her fear Ms. La Force on July 23, 2014.

[16] I am prepared to accept that Ms. La Force attacked Ms. Botelho biting her thumb. For reasons that become clear when dealing with the July 23rd incident, I find Ms. Robinson is a credible and trustworthy witness and I believe she witnessed an injury to Ms. Botelho’s thumb around 2011. I have considerable difficulty with Ms. La Force’s evidence particularly in relation to the July 23rd incident. It is also clear to me from Mr. Banfield’s testimony that he was less interested in assisting the court with the search for the truth than with trying to help his girlfriend avoid conviction.

[17] However I do note that Ms. Botelho has shown herself to be partial to exaggeration at times such as saying her thumb was bitten off. I am not so certain Ms. La Force kicked the door down to the floor. However, I believe Ms. La Force bit her thumb and that this was sufficient cause for her to fear Ms. La Force.

Threatening Phone Calls and Texts before the July 23, 2014 Incident

[18] Ms. Botelho testified that after the 2011 incident she received threatening phone calls and texts from Ms. La Force in 2013 and 2014 up until the July 23rd incident.

[19] Ms. Botelho stated that she recognized Ms. La Force’s voice and that Ms. La Force identified herself in some calls. She said she got at least 20 calls from an unknown number. She testified Ms. La Force would threaten that she is coming for her. She would also receive texts with the same threatening message, and other messages telling her she was stupid if she thought Mr. Banfield would ever be with her. Ms. Botelho indicated there were between 30 and 50 texts. She stated the texts and calls warned, “I’m coming for you. Just know someone is coming for you and your time is coming.” Ms. Botelho testified the texts and calls were continuous at times and then would stop but happened right up to the evening of July 23rd.

[20] Ms. La Force denied she made or sent any threatening phone calls or texts to Ms. Botelho.

[21] Mr. Banfield’s evidence in this area is somewhat more in accord with that of Ms. Botelho’s that messages were being sent. He testified that Ms. La Force used his phone to get Ms. Botelho’s phone number. He confirmed that Ms. La Force and Ms. Botelho were sending messages back and forth. In spite of his admission that he never saw the content of the messages, he rejected the Crown’s suggestion that the messages from Ms. La Force were threatening. But he did admit that the two women had a contentious relationship because they knew he was sleeping with both of them.

[22] I accept, as Mr. Banfield and Ms. Botelho say, that Ms. La Force was making calls and sending texts to Ms. Botelho. I think it is safe to conclude from the context of animosity between the two women over Mr. Banfield that Ms. La Force’s messages would reflect that animosity. They would not be friendly or casual. In the context of all the facts, including what I accept was Ms. La Force’s attitude and conduct on July 23rd, I believe that the calls and messages sent over a number of years were threatening to Ms. Botelho, so much so that she called the police to complain.

Ms. Botelho’s Reports to Police before the July 23rd Incident

[23] Ms. Botelho testified she did not call the police after the 2011 incident because she did not want her father to find out she was in a relationship with Mr. Banfield. She made up a story for her parents that she was attacked on the street.

[24] Ms. Botelho testified she reported the 2011 incident and the threatening calls and texts to the police two or three years later and the police advised her that they could do nothing telling her that she should have reported these matters when they happened. She testified she also called the police twice before the July 23rd incident. Her memory was refreshed about one complaint by an occurrence report dated June 13, 2014, six weeks before the July 23rd incident. Ms. Botelho testified she also called the police on July 22, 2014 at about 9 to 10 p.m., the night before the July 23rd incident.

[25] Ms. Botelho’s report to the police on this occasion would have been after the July 22nd incident, as discussed below, since according to Ms. Robinson they arrived outside the apartment at about 8 or 9 p.m.

[26] I accept that Ms. Botelho reported Ms. La Force’s threats to the police on a number of occasions and that she had a good reason to do so.

Incident on July 22, 2014

[27] Ms. Botelho and Ms. Robinson encountered Ms. La Force on the evening before the July 23rd incident. Ms. Robinson testified they arrived outside Mr. Banfield’s apartment at about 8 or 9 p.m.

[28] Ms. Botelho’s and Ms. Robinson’s evidence was basically similar. They testified that on the evening of July 22nd Ms. Botelho went to meet Mr. Banfield at his apartment. Ms. Robinson drove Ms. Botelho to the apartment and parked the car near the rear door entrance to the building. Ms. Botelho did not have a key to Mr. Banfield’s apartment so she had to wait for him to arrive home. Ms. Botelho did not feel safe and Ms. Robinson waited with her. Ms. Robinson remained in the car studying for an exam. Ms. Botelho got out of the car.

[29] As Ms. Botelho was standing outside the car she saw Ms. La Force walking towards her. Ms. Robinson also came out of the car yelled out “Hey” to Ms. La Force and asked her if her name was “Anna”. Ms. La Force did not respond. Ms. La Force immediately walked away in the opposite direction and entered the building at 2515 Eglinton Ave. W. where she lived.

[30] Ms. La Force admitted encountering Ms. Botelho and Ms. Robinson near Mr. Banfield’s apartment on the evening of July 22nd. However she tells a very different story. According to Ms. La Force she left her apartment at 2515 Eglinton Ave. and headed for the convenience store in front of Mr. Banfield’s apartment. She said when she entered the store Ms. Robinson approached her from behind and twice asked, “Is your name Anna?” Ms. La Force stated that she did not respond. She said she did not answer because she did not know Ms. Robinson.

[31] Ms. La Force went on to say that Ms. Robinson asked her if she wanted to fight, saying, “Like to fight me? Like if you want to fight, here’s your time.” Ms. La Force said she did not respond and walked out of the convenience store. But Ms. Robinson, she said, was walking out behind her saying “Fight me. Fight me.” Ms. La Force said she saw Ms. Botelho standing in the parking lot as she quickly walked back into her apartment at 2515 Eglinton Ave.

[32] I am prepared to accept Ms. Robinson’s and Ms. Botelho’s account of what happened on the evening of July 22nd. Ms. La Force had given evidence that there was no antagonism between herself and Ms. Botelho between the 2011 incident and the July 23rd incident. She denied making threatening calls and sending texts. On Ms. La Force’s own evidence it does not seem to fit that suddenly Ms. Robinson, who did not know her, would abruptly burst into such strong anger. I find it does not make sense that Ms. Robinson would out of nowhere challenge Ms. La Force to a fight.

[33] As well, I find Ms. La Force’s account runs contrary to an admission she made that I will more fully address later. She admitted that immediately before the altercation on July 23rd, Ms. Robinson had a conciliatory approach toward the dispute over Mr. Banfield. Ms. La Force also admitted that Ms. Robinson was not yelling or swearing during the altercation on July 23rd as she and Ms. Botelho were.

[34] I do not accept that on July 22nd Ms. Robinson displayed the aggressive behaviour Ms. La Force described.

EVIDENCE ON THE INCIDENT BEFORE THE COURT

Aggravated Assault, Assault with a Weapon and Assault

Evidence of Ms. Botelho and Ms. Robinson

[35] There is no dispute that Ms. La Force attacked Ms. Robinson. The entire episode lasted about 15 minutes according to Ms. Robinson’s estimate. Ms. La Force does not deny stabbing Ms. Robinson with scissors and biting her. The photographic evidence speaks for itself as to the nature and extent of the wounds.

[36] Ms. Botelho and Ms. Robinson provided similar evidence on the material facts. Of course, Ms. Robinson gave specific details of the attacks since she was the victim. There were some differences between their evidence and at times Ms. Botelho’s evidence was not as clear as that of Ms. Robinson. In part this is because Ms. Robinson had a closer vantage point as the recipient of Ms. La Force’s attacks. Therefore, as between the two witnesses, I accept Ms. Robinson’s evidence where their evidence differs.

[37] It was clear to me that Ms. Robinson was attempting to assist the court with what happened to her on the evening of July 23, 2014. Through painful testimony and hearing piercing cries for help over the 911 call played in court, Ms. Robinson persevered with her testimony, at times through tears. I found she was unshakable on cross-examination on the material facts of the attack. She was a solid witness for the Crown.

[38] Ms. Botelho and Ms. Robinson arrived at Mr. Banfield’s apartment between 9 and 10 p.m. They entered with a key which Ms. Bothelo said Mr. Banfield had given to her. Ms. Botelho testified that since 2012 she had known the entry code for the door outside the apartment. Ms. Botelho was supposed to meet Mr. Banfield there after he got off work around 10 p.m. Ms. Robinson drove Ms. Botelho there.

[39] The plan was for Ms. Robinson to remain there with Ms. Botelho until Mr. Banfield came home. Because they had encountered Ms. La Force walking toward Ms. Botelho outside the apartment the night before and because of Ms. La Force’s history of antagonism towards Ms. Botelho, Ms. Robinson said she did not feel comfortable leaving Ms. Botelho alone.

[40] Ms. Botelho testified that at about 10 p.m., before Ms. La Force arrived at the apartment, she had received three to five “unknown caller” calls to her phone. No one spoke from the other end but Ms. Botelho could hear breathing. About two minutes after the last phone call there was a knock on the apartment door.

[41] Ms. Botelho and Ms. Robinson were not expecting anyone except Mr. Banfield who would have had a key to the apartment and would not have knocked. They thought it might have been a boy from a neighbouring apartment. There was no peek hole on the apartment door so they could not see who was on the other side without opening the door. Ms. Botelho slowly opened the door ajar. It is Ms. Botelho’s and Ms. Robinson’s evidence that when the door was opened, Ms. La Force forced the door wide open and rushed into the apartment shoving her way past Ms. Botelho. Ms. Robinson was behind the door when it was opened and Ms. La Force did not see her.

[42] Ms. Robinson stated that Ms. Botelho said nothing because she seemed traumatized by Ms. La Force rushing in. Ms. Robinson repeated over and over, “What are you doing here?” Both Ms. Botelho and Ms. Robinson testified that once inside Ms. La Force rushed toward the kitchen for the knife on the counter. Ms. Robinson said she entered the kitchen and blocked Ms. La Force from getting the knife.

[43] Ms. Botelho’s evidence about the knife was not clear. It first appeared that she was saying Ms. Robinson took the knife from Ms. La Force in the kitchen. Later in her evidence she testified Ms. La Force had the knife in her hand as she entered the bedroom and Ms. Robinson slapped it out of her hand and it dropped and Ms. Botelho picked it up. This is contrary to Ms. Robinson’s evidence.

[44] Ms. Robinson testified that when Ms. La Force was moving toward the bedroom she (Ms. Robinson) stood in front of the bedroom door to block the entrance. From that position Ms. Robinson said she then put her hand on Ms. La Force’s forearm to stop her from running away and asked her to leave the apartment. Ms. La Force then pulled away and sat on the bed. Ms. La Force said, “I’m waiting for my man to come home.” Ms. Robinson then told Ms. Botelho to call Mr. Banfield and tell him there is a woman in his apartment who refuses to leave.

[45] Ms. Botelho called Mr. Banfield. The following evidence about what Ms. Robinson and Ms. Botelho testified Mr. Banfield said during the phone call is hearsay. Mr. Banfield denies having received a phone call and saying what he is alleged to have said. I allow this evidence in only as part of the narrative and not for the truth of what was said.

[46] Ms. Botelho and Ms. Robinson said Ms. Botelho put her phone on “speaker” so everyone could hear the conversation. According to both women Mr. Banfield said, “Call the police. She’s a stalker.” It was Ms. La Force who Mr. Banfield referred to as a stalker. According to Ms. Robinson and Ms. Botelho, Ms. La Force said, “Who’s a stalker Telly (Mr. Banfield’s nickname)?” Ms. Robinson testified that at this point Ms. Botelho was situated on the right side of the bed near the closet when Ms. La Force slapped Ms. Botelho forcefully on the side of her head. Ms. Robinson was on the left side of the bed near the television not blocking the bedroom door.

[47] It was at this point that Ms. Robinson began defending Ms. Botelho from Ms. La Force by blocking her from reaching Ms. Botelho. Ms. Robinson said she stood in front of Ms. La Force with her arms and hands upright at right angles in front of her in a “stop” posture. Ms. La Force began to retreat and Ms. Robinson told her to calm down. Ms. Botelho and Ms. La Force confirmed Ms. Robinson’s evidence that Ms. Robinson said to Ms. La Force and Ms. Botelho that they should be angry with Mr. Banfield, not with each other, because Mr. Banfield is sleeping with both of them.

[48] Ms. Robinson testified Ms. La Force was pacing between the night table on the left side of the bed and the bedroom door. Ms. Robinson was on the left side of the bed near the television close to Ms. La Force. She repeated to Ms. La Force that Ms. Botelho did not want her there. At this point Ms. Robinson told Ms. Botelho, who was on the right side of the bed, to call the police. Ms. Robinson testified she then saw Ms. La Force rushing toward her and observed Ms. Botelho run into the ensuite washroom just beyond the right of the foot of the bed.

[49] Ms. Robinson testified she was standing near the television and Ms. La Force was standing blocking the bedroom door. Ms. La Force told Ms. Robinson to move. Ms. Botelho was still in the washroom calling the police. Suddenly, Ms. Robinson saw that Ms. La Force had scissors in her hand.

[50] Ms. Robinson said she then put her hands up in a “stop” motion. Ms. La Force was trying to get to Ms. Botelho in the washroom. She again told Ms. Robinson to move or she would stab her. Ms. Robinson said she had nowhere to move since Ms. La Force was blocking the bedroom door. Ms. Robinson stated that throughout the incident she always positioned herself between Ms. La Force and Ms. Botelho.

[51] Ms. Robinson stated that Ms. La Force raised her right hand up, and about two feet from Ms. Robinson, Ms. La Force, gripping the scissors, began making stabbing gestures and moving her hand back and forth. Ms. Robinson realized she had nowhere to go to get away from Ms. La Force. She thought she should try to grab the scissors from her and attempt to restrain her. She was yelling for Ms. Botelho to come and help her.

[52] At this point in her testimony Ms. Robinson began to cry and I called a recess.

[53] After the recess Ms. Robinson testified she and Ms. La Force were wrestling over the scissors. Ms. Robinson testified she then used her right arm across Ms. La Force’s chest and the right side of her body to brace Ms. La Force against the bedroom door which at this point was closed. While Ms. Robinson had her right side against Ms. La Force, Ms. La Force bit her right shoulder.

[54] Ms. Robinson testified Ms. La Force then stabbed her in her left shoulder with the scissors. When they were still near the television Ms. Robinson used her right hand to grab the scissors from Ms. La Force. Ms. Robinson threw the scissors and called for Ms. Botelho to get the scissors and take them away. Ms. Botelho was on the phone with 911 at the time. She came out of the washroom and retrieved the scissors. Ms. Robinson testified that when she threw the scissors she realized she had also been stabbed in her left forearm. She did not recall getting that wound.

[55] Ms. Robinson testified that when Ms. La Force bit her right shoulder, she took Ms. La Force’s head from her shoulder and put her in a headlock with her right arm. Ms. Robinson testified Ms. La Force then bit her on her right ribcage. At this point they both ended up on the floor in front of the television. Ms. Robinson was on top of Ms. La Force who landed on her back. Ms. Robinson called for Ms. Botelho’s help because Ms. La Force was trying to get up and was using her legs to move Ms. Robinson. Ms. Robinson asked Ms. Botelho to sit on Ms. La Force.

[56] Ms. Robinson put her right hand on Ms. La Force’s head to restrain her so she could not get up and Ms. La Force bit her on her right thumb. When she did this Ms. Robinson put her right forearm under Ms. La Force’s chin to lock her jaw so she could not bite her again. Ms. Robinson testified that when she did that Ms. La Force twice told Ms. Robinson to choke her, to kill her. At this point Ms. Robinson removed her arm and Ms. La Force continued to fight. Ms. Robinson said that when she tried to get up Ms. La Force bit her on her right breast.

[57] Ms. Robinson continued to try to restrain her as Ms. La Force kept fighting. Ms. Robinson then put her right knee and leg on Ms. La Force’s chest to hold her down. Ms. Botelho tried to sit on her legs but was unable to do so. Ms. Botelho returned to the washroom still on the phone with the dispatcher. Ms. Robinson continued to scream for help. Ms. Robinson leaned over Ms. La Force and Ms. La Force bit her left breast. She removed her breast from her mouth and observed that Ms. La Force had her (Ms. Robinson’s) blood all over her mouth. Ms. La Force kept saying she cannot breathe.

[58] The 911 tape was played for both Ms. Botelho and Ms. Robinson and they identified Ms. Robinson as the one repeatedly screaming for help. Ms. Botelho identified her voice as the person talking to the dispatcher. She confirmed that the dispatcher was attempting to obtain information about who was involved, the location of the altercation and what was occurring. Ms. Botelho confirmed that the dispatcher repeatedly asked her to stay in the washroom away from the noise so the dispatcher could hear her. Ms. Botelho stated that she kept going back and forth between the washroom and the altercation because she wanted to help Ms. Robinson. She also confirmed that she told the dispatcher that she went into the bedroom to retrieve the scissors and that she had taken the scissors away from the altercation.

[59] Ms. Robinson was shown the photographs of her injuries taken by the police on July 27, 2014. The photographs corroborate her testimony about the areas of her body injured by Ms. La Force.

[60] Ms. Robinson gave the following evidence:

• The injury shown to her right shoulder was the bite by Ms. La Force.
• The injury to the right side of her right arm, she did not recall getting, but said she did not have that injury before the altercation.
• Ms. Robinson said the injury to the underside of her left forearm was inflicted by the scissors. She testified she received 16 stitches on that injury and that wound bled profusely.
• The injury near her elbow she received when Ms. La Force was coming toward her with a stabbing motion. She testified she received the wound near her wrist when Ms. La Force first came towards her with the stabbing motion.
• The injury to her left shoulder, Ms. Robinson confirmed, resulted from Ms. La Force stabbing her there when she first came towards her. She received two stitches on that wound.
• The injury to her right breast occurred when she was trying to get up after removing her arm from below Ms. La Force’s chin.
• The injury to her left breast she said resulted from Ms. La Force biting her there when she was on top of Ms. La Force leaning in towards her.
• The injury to her right ribcage occurred when Ms. La Force bit her there when she put her into a head lock with her right arm.
• The injury to her right thumb occurred when Ms. Robinson put her right hand on Ms. La Force’s face to hold her down. The nail peeled off and the thumb became swollen so she could not write her exams. She received stitches on her thumb.

The Evidence of Ms. La Force

[61] Ms. La Force’s account of the incident that gave rise to the charges against her is widely divergent from Ms. Robinson’s and Ms. Botelho’s accounts.

[62] Ms. La Force testified Mr. Banfield was at the time of the incident and currently is her boyfriend. This is Mr. Banfield’s evidence as well. She said she had lived with Mr. Banfield in the apartment since the end of 2012 and knew the pass code and had a key to the apartment.

[63] Ms. La Force testified she saw the kitchen light on in the apartment from the parking lot behind the building and went to investigate. She stated that she used the pass code and entered. She indicated she did not have her key to the apartment with her that evening so she knocked on the door. She testified Ms. Botelho answered the door. According to Ms. La Force, Ms. Botelho opened the door widely enough for her to walk in. Ms. La Force denied barging through the door.

[64] Ms. La Force’s evidence is that Ms. Botelho stepped back and she walked in. She said Ms. Robinson was behind the door so she did not see her. Ms. La Force indicated she said, “What are you guys doing here?”, and told them to get out. She said she recognized Ms. Botelho from the 2011 incident. Ms. Botelho asked her what she is doing there.

[65] Ms. La Force denied rushing into the kitchen. She said she went directly to the bedroom because that was her home. That is where she lived. She denied blocking the door to the bedroom. She said she simply went in and sat at the foot of the bed. She said at that point she was talking calmly to the two women explaining that she had every right to be there because it was hers and Mr. Banfield’s place. She said Ms. Botelho was not listening, not hearing her out.

[66] As noted above, Ms. La Force admitted that Ms. Robinson told her she should not be mad at Ms. Botelho, but rather at Mr. Banfield. However, Ms. La Force said that she and Ms. Botelho began arguing and swearing at each other calling each other “bitch’. She admitted Ms. Robinson was not swearing. At this point, Ms. La Force stated she was standing with Ms. Botelho in front of her a little closer to the bedroom door. According to Ms. La Force they continued swearing in each other’s faces. Ms. Robinson, she stated, was behind the bedroom door inside the bedroom.

[67] Ms. La Force testified that the next thing she knew Ms. Robinson grabbed her and held on to her. Then Ms. Botelho slapped her. She stated that Ms. Robinson then said, “Is that how you are going to hit her? Hit her again.” Ms. La Force said the second slap was more forceful. Ms. La Force said she was trying to get free and trying to elbow Ms. Robinson who was behind her.

[68] Ms. La Force stated that as she continued to struggle with Ms. Robinson, Ms. Robinson ended up with her back against the closed bedroom door. This is contrary to Ms. Robinson’s and Ms. Botelho’s evidence that Ms. La Force was blocking the door. Ms. La Force said she could not get free and Ms. Botelho continued to hit her with her hands and feet all over her body, first in her face, then in her chest and stomach areas.

[69] Ms. La Force testified she was attempting to get Ms. Robinson away from the door so she could get to the door knob and get out of the bedroom. She said she was not successful. She said Ms. Botelho was not hitting her at this point. She could not get away from Ms. Robinson.

[70] Ms. La Force’s testimony diverges in another material way from that of Ms. Robinson and Ms. Botelho. Ms. La Force testified that at this point she saw Ms. Robinson grab for the scissors on the bedside table situated on the left side of the bed. Ms. La Force said she thought Ms. Robinson got the scissors to try to keep her in the room. Ms. La Force said she bit her either on her hand or on her shoulder to make her drop the scissors. She said she was scared and panicking and the scissors ended up in her hand.

[71] Ms. La Force testified that when she got the scissors she stabbed Ms. Robinson. She said she did this because she and Ms. Robinson were still fighting and she was trying to get away. Ms. Robinson was trying to get the scissors back. She said Ms. Botelho was on the phone with the police at this time. Ms. La Force testified Ms. Robinson got the scissors back and dropped them on the floor or threw them on the bed. She said Ms. Robinson was screaming when she (Ms. Robinson) was the one with the upper hand and said Ms. Botelho was also screaming while on the phone with the dispatcher.

[72] Ms. La Force testified she tripped on the corner of the bed and she and Ms. Robinson fell to the floor. Ms. La Force was on her back and Ms. Robinson was on top of her. She testified that everything happened so quickly she could not recall everything that happened. She did not recall the headlock but said she remembered Ms. Robinson choking her when she was on the floor by putting her forearm across her throat. They were still fighting and Ms. La Force admitted she was biting her.

[73] Ms. La Force testified that every time she tried to scream, Ms. Robinson would hold her hand over her face blocking her mouth and nose preventing her from yelling. This, Ms. La Force contends, is why her voice is not heard yelling on the 911 tape. She also said that with all her weight Ms. Robinson pressed her knee into her chest for more than five minutes. She said she was biting Mr. Robinson to get her off of her. She said she blanked out briefly and then the police came in and removed Ms. Robinson from her.

ANALYSIS

Aggravated Assault and Assault with a Weapon

[74] Ms. La Force does not deny she attacked Ms. Robinson and caused her injuries by stabbing her with scissors and biting her on different parts of her body. She asserts that by her actions she was trying to defend herself.

The Law of Self-Defence

The Legislation

[75] The statutory requirements for self-defence are found at s. 34 of Criminal Code. It is not the burden of the defence to prove Ms. La Force meets those requirements. It is the Crown’s burden to disprove beyond a reasonable doubt that Ms. La Force acted in self-defence: [R. v. Mulder, , [1978] O.J. No. 515, at paras. 5 and 9 (Ont. C.A.)]. Section 34 provides:

34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Application of the Factors

Was There Reasonable Grounds to Believe Force is Being Used?

[76] A determination of whether this factor has been satisfied resides in the history of the relationship between Ms. Robinson, Ms. Botelho and Ms. La Force. There was the 2011 incident and threats of force coming not from Ms. Robinson but from Ms. La Force. The threats were directed against Ms. Botelho not Ms. Robinson. I did not accept Ms. La Force’s evidence that Ms. Robinson threatened her on July 22nd. Although the charges arise in relation to Ms. La Force’s conduct toward Ms. Robinson, it was Ms. La Force and Ms. Botelho who had the antagonistic history.

[77] The question is whether Ms. La Force had reasonable grounds to believe Ms. Robinson used force.

[78] I find Ms. La Force’s account of Ms. Robinson’s aggressiveness on July 22nd runs counter to Ms. Robinson’s attempt on July 23rd to encourage the two disputants to focus their anger not on each other but rather on Mr. Banfield. As well, on Ms. La Force’s own admission, Ms. Robinson was not involved in the verbal dispute on July 23rd. She was not hurling profanities and invectives at Ms. La Force.

[79] Ms. La Force’s evidence of Ms. Robinson being the aggressor, I find runs counter to Ms. Robinson’s demeanor when she first encountered Ms. La Force on July 23rd before the physical altercation began. It makes no sense that Ms. Robinson would move from a conciliatory stance to suddenly holding onto Ms. La Force and inviting Ms. Botelho to increase her force in hitting Ms. La Force. This does not have the ring of truth in the context of all the facts.

[80] What does have a ring of truth is that Ms. La Force was the aggressor on July 23rd. She testified she came to the door and walked in, sat on the bed and calmly explained her relationship with Mr. Banfield and her right to be in the apartment. This makes no sense given what I have accepted as her history of aggressive behaviour toward Ms. Botelho and what she alleges was Ms. Robinson’s aggressive conduct the night before.

[81] Moreover, Ms. La Force insisted it was her apartment. Why would she have to explain anything to people she regarded as interlopers? One would expect her to be startled and frightened by their presence and call the police to have them removed as trespassers or for breaking and entering.

[82] I find Ms. La Force had no reasonable grounds to believe Ms. Robinson would engage in force with her before Ms. La Force initiated her vicious attack.

Was the Stabbing and Biting Done for the Purpose of Defending Herself?

[83] I do not believe Ms. La Force’s violent acts against Ms. Robinson were to defend herself. Again, I do not accept that Ms. Robinson aided Ms. Botelho to hit Ms. La Force. The evidence demonstrates to my satisfaction that Ms. Robinson was in fact the person who had to defend herself from Ms. La Force.

[84] I accept that Ms. Robinson kept herself between Ms. La Force and Ms. Botelho and when Ms. La Force could not get to Ms. Botelho, who she actually had the grievance against, she embarked on a series of vicious attacks on Ms. Robinson for blocking her from getting to the bathroom where Ms. Botelho was. She first bit her on her right shoulder.

[85] Regarding who grabbed the scissors first, I accept Ms. Robinson’s evidence. Ms. La Force’s evidence was that Ms. Robinson grabbed the scissors with her right hand from the nightstand on the left side of the bed. However, according to her own evidence that Ms. Robinson had her back against the bedroom door, Ms. Robinson physically would have had to use her left hand to grab the scissors.

[86] I am more partial to Ms. Robinson’s account that Ms. La Force situated herself with her back to the bedroom door so as to physically block the bedroom door. According to Ms. Robinson, Ms. La Force then began pacing making it possible for her to grab the scissors herself. I believe that is what Ms. La Force did.

[87] I accept that Ms. La Force made stabbing motions and in Ms. Robinson’s attempts to restrain her with the right side of her body, Ms. La Force bit her right shoulder and then stabbed her in the left shoulder and her left forearm as Ms. Robinson tried to ward off the scissors. Ms. Robinson sustained several other wounds to her arms before she (Ms. Robinson) seized the scissors and threw them to the floor.

[88] It was Ms. Robinson who was defending herself and not the other way around.

[89] I accept Ms. Robinson’s evidence that after they landed on the ground with Ms. Robinson on top, Ms. La Force continued to fight. The headlock which facilitated the bite to Ms. Robinson’s right breast, I accept was to prevent Ms. La Force from biting her. Ms. Robinson holding Ms. La Force’s head, which led to the bite on the left thumb, I believe was also defensive and directed to thwarting more bites.

[90] The arm placed under Ms. La Force’s chin, I accept, was also Ms. Robinson’s attempt to restrain Ms. La Force’s jaw to prevent further bites. I accept Ms. Robinson placing her knee and leg on Ms. La Force’s chest was also a defensive act to keep Ms. La Force down. Ms. La Force continued to fight and did not settle down. Ms. Robinson sustained further bites to her left breast, rib cage and arms before the police arrived.

[91] Ms. La Force admitted to causing the ugly wounds to Ms. Robinson. In her attempt to paint herself as the victim and Ms. Robinson as the aggressor, Ms. La Force had the audacity to testify that Ms. Robinson’s screams for help while she was being bitten and stabbed were fake, an attempt to pervert the narrative of the altercation. I found that testimony by Ms. La Force disconcerting to say the least.

[92] I also took into account the fact that the police investigation found Ms. La Force to have only a small cut on her lip that was not bleeding. One would expect extensive injuries and bruises if Ms. Robinson and Ms. Botelho had assaulted Ms. La Force as violently as she described.

[93] I find in conclusion that Ms. La Force’s stabbings and biting were not directed to self-defence but rather to forcing Ms. Robinson to let her go so she could go and attack Ms. Botelho who she regarded as her true foe.

Was the Stabbing and Biting Reasonable in the Circumstances?

[94] The Ontario Court of Appeal makes it clear that the test of reasonableness of a defensive action is a subjective one, not based in the perspective of the reasonable person. The starting point is the accused’s state of mind:

The accused’s subjective belief that he is in imminent danger of death or grievous bodily harm and that his action was necessary in self-defence was, however, required to be based on reasonable grounds. In deciding whether the accused’s belief was based on reasonable grounds the jury would necessarily draw comparisons with what a reasonable person in the accused’s situation might believe with respect to the extent and the imminence of the danger by which he was threatened, and the force necessary to defend himself against the apprehended danger.

[[R. v. Baxter, , [1975] O.J. No. 1053, at para. 43 (Ont. C.A.)]]

[95] I think my findings on the other factors make it clear that the stabbing and biting was not reasonable in the circumstances. Ms. La Force’s actions were offensive actions. They were not acted out for the purpose of Ms. La Force defending herself. Ms. La Force’s state of mind was such that she was very angry with Ms. Botelho for sleeping with Mr. Banfield. She was focused on getting past Ms. Robinson to confront Ms. Botelho. Ms. Robinson bravely put herself in danger by blocking Ms. La Force in order to help her good friend.

[96] I saw no credible basis to support Ms. La Force’s contention that she acted out of fear or self-defence. She was incensed about the two women being in Mr. Banfield’s apartment. She had seen them outside the night before. Ms. La Force was determined to get them out of the apartment. When they refused to leave and instead asked her to leave, it was Ms. La Force who went on the attack. The facts point to her being the aggressor, not Ms. Robinson.

In a Dwelling Place without Lawful Excuse

[97] Ms. La Force is charged with being in a dwelling place without lawful excuse, the apartment at 2519 Eglinton Ave. W., contrary to s. 349(1) of the Criminal Code. This provision states:

349. (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein [my emphasis].

[98] The offence created by s. 349 can be committed in two ways. It is an offence to “enter” or be “in” a dwelling house without lawful excuse with intent to commit an indictable offence: [[R. v. Beyo, , 144 C.C.C. (3d) 15, at para. 34 (ONCA)]]. Hence, the offence of entering a dwelling house without lawful excuse and with intent to commit an indictable offence contrary to s. 349 requires two mental elements. The first is the general intent to enter the dwelling house without lawful excuse, and the second is the specific intent to commit an indictable offence: [[R. v. E. (S.), , at p. 3 (NWT CA)]].

[99] The actus reus of the offence is the fact of being in a dwelling place without lawful excuse. Section 349(2) of the Criminal Code enacts a statutory presumption of intent. Where evidence is introduced that a person unlawfully entered or was unlawfully present in a dwelling place, the subsection requires the trier of fact to presume, in the absence of evidence to the contrary, that the intruder was there to commit an indictable offence. What this means is that from evidence of the actus reus, the trier of fact presumes the mens rea, in the absence of evidence to the contrary: [[R. v. Atkinson, 2012 ONCA 380; [2012] O.J. No. 2520, at para 97 (Ont. C. A.)]]. Put another way, once the Crown has proven the actus reus, the mens rea of intent to commit an indictable offence is presumed.

[100] I note, as the Crown did, that on many instances when speaking of the apartment, when the questions did not pertain to whose apartment it is, Ms. La Force would refer to the apartment as Mr. Banfield’s place. This tends to raise a question as to whether she did reside there. It would seem that by 2017 she should be accustomed to referring to the apartment as hers given her evidence that she began living there at the end of 2012.

[101] There is also the evidence that Ms. La Force said she does not sleep there every night and that she sometimes stays across the way at 2515 Eglinton Ave. W., her mother’s home. There is also the evidence that she did not have her key with her on the evening of July 23rd when she said her actual purpose for going there was to investigate what was going on inside the apartment.

[102] However, Mr. Banfield testified that Ms. La Force lived there with him. He confirmed Ms. La Force had a key to the apartment. If this is true it means she was entitled to be there on July 23rd. Mr Banfield, the tenant on the lease to the apartment, permitted her to be there. There is no admissible evidence that Mr. Banfield forbade her to be there. However, even if she did not live at the apartment, as some of the evidence might suggest, this does not mean she was there on the evening of July 23rd without lawful excuse. Mr. Banfield’s evidence was that she was entitled to be there.

[103] While there is no dispute that Ms. La Force entered and was in the dwelling place, the other aspect of the actus reus of being there without lawful excuse has not been proven. I find on the facts that Ms. La Force was not in the apartment without lawful excuse. Mr. Banfield’s evidence contributes to a reasonable doubt about this.

[104] The s. 349(2) presumption of intent to commit an indictable offence is only triggered if the Crown proves the actus reus of the accused’s entry or presence in the dwelling place being without lawful excuse. If the Crown satisfies its onus, the accused is required to rebut the presumption of being in the dwelling place with the intent to commit an indictable offence.

[105] The Crown has failed to prove that Ms. La Force’s general intent to be in the apartment was without lawful excuse. I need not go on to determine the specific intent of being there to commit an indictable offence.

[106] In the result the offence is not made out.

DISPOSITION

[107] Pursuant to s. 268(1) of the Criminal Code, an aggravated assault is committed when an accused wounds, maims, disfigures or endangers the life of the complainant. The injuries committed by Ms. La Force clearly fit that definition. I find the Crown has proven beyond a reasonable doubt that Ms. La Force committed an aggravated assault against Ms. Robinson contrary to s. 268(1) of the Criminal Code.

[108] The scissors were used as weapon as required by the definition of weapon under s. 2 of the Criminal Code. I find the Crown has proven beyond a reasonable doubt that Ms. La Force committed an assault with a weapon, the scissors, against Ms. Robinson, contrary to s. 267(1) of the Criminal Code.

[109] I find the Crown failed to prove beyond a reasonable doubt that Ms. La Force was in a dwelling place without lawful excuse contrary to s. 349(1) and (2) of the Criminal Code.

VERDICT

[110] I am satisfied the Crown has proved Anna La Force’s guilt beyond a reasonable doubt on count 1 and count 2 on the indictment and convictions will be entered accordingly.

[111] I am satisfied the Crown has not proved Anna La Force’s guilt beyond a reasonable doubt on count 3 on the indictment and an acquittal will be entered accordingly.

B.A. ALLEN J. Released: July 14, 2017