CITATION: R. v. Tompkins, 2017 ONSC 5524
COURT FILE NO.: 16-55
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Travis Tompkins
Defendant
Isabel Blanchard, counsel for the Crown
Robert Miller , counsel for the Defendant
HEARD: September 5th ,6th and 7th, 2017
reasons for judgment
Laliberté, j.
Introduction
[1] The accused, Travis Robert John Tompkins, is charged under a twelve count indictment, all of which revolve around allegations of violence against his female partner Brittany Joubert. These counts are as follows:
− 6 counts of assault, s.266 of the Criminal Code
− 3 counts of assault with a weapon, s.267(a) of the Criminal Code
− 2 counts of mischief, s.430(4) of the Criminal Code
− 1 count of uttering threats, s.264.1 of the Criminal Code
[2] The offences are alleged to have occurred during the period of February 1st, 2015 to September 1st, 2015 in the home he was sharing with the complainant in the Village of Green Valley.
[3] For the most part, the Crown’s case is based on the testimony of the complainant. The accused testified in his defence and denied all of the allegations.
[4] Properly articulated, the Court’s task is to decide whether the Crown has proven the essential elements of each offence beyond a reasonable doubt.
[5] The Court’s judgement is structured as follows:
Summary of the Evidence
Position of the Parties
The Law
Discussion
Conclusion
THE EVIDENCE
[6] The Crown presented the following witnesses:
Brittany Joubert (complainant)
Jessica Neville (complainant’s friend)
Rebecca Derouchie (complainant’s mother)
Detective Constable Jason Cholette (investigating officer)
Constable Marty Lalonde
[7] The following witnesses were called by defence:
Travis Tompkins (accused person)
June Homer (accused’s mother)
Brittany Joubert
[8] The complainant in this matter is 23 year old Brittany Joubert. She is the mother of three young children, one being 2 ½ year old Alexis who was fathered by the accused.
[9] She had known the accused for a couple of years prior to their relationship which lasted from 2014 to September 1st, 2015. They had resided in Cornwall with other individuals prior to moving together alone with the children in Green Valley. She believes this was in February 2015. All of the alleged offences would have occurred in the home in Green Valley.
[10] She describes the relationship in fairly negative terms. They were always arguing and never saw eye to eye. They were all petty arguments. These progressed to “severe aggression” on his part.
[11] She explains that there have been so many incidents that she cannot place a date and time on these. Things are “jumbled” up in her mind. However, she is adamant that the events did take place.
[12] The complainant testified that on September 1st, 2015, she contacted her mother Rebecca Durouchie through Facebook messenger and asked her to call the police as she was afraid that the accused would become violent.
[13] She states that she had been subjected to various acts of violence during the previous three days.
[14] She alleges that it all started with an argument over dishes. She describes the following events: ( Crown counsel stated in submission that these events are the factual basis for count #12 (s.266):
− They were close to the sink and both were “pushing and shoving”… it was “vice versa…” There was water all over the place. (s.266)
[15] The complainant reports that the following events occurred after the pushing and shoving: (Crown counsel stated during submissions that these events are the factual basis for counts #2 (s.267(a)), #9 (s.264), #10 (s.267(b)):
− The accused took a roll of Saran Wrap and struck her twice with it over the front of her head (s.267(1)(a)).
− The accused picked up scissors from the kitchen table; she immediately closed her eyes; he told her he was going to cut her; she was afraid; she doesn’t know what he did with the scissors nor does she recall what he did with these after. (s.264.1), (s.267 (a)).
[16] She indicates that the police had been called by a neighbour because of the yelling. The police attended the residence and she told the officer that nothing had happened. She was afraid that her children would be taken away as this would reflect poorly on her. She decided to say nothing to the police.
[17] The accused was told to leave the home by the police. He went to his friend Jason. They continued to argue over Facebook messenger
[18] She describes the following events as having occurred between the time the police attended their home and her mother having contacted the police at her request on September 1st, 2015: (Crown counsel stated in her submissions that these events are the factual basis for counts #11 (s.267(a)), #1 (s.266), #3 (s.430(4)):
− She was in the hallway near the kitchen area when the accused picked her up and placed her on his shoulder; he threw her on a bed which was in the living room; she was on her back on the bed; he grabbed the bottom of a loveseat which was close to the bed, lifted it and flipped it over her; it struck bellow her knees (s.267(a)).
− He had told her that he would use pillows and soap to hit her so that no marks would show on her body; he wrapped a sweater around his fist and hit her once or twice in the abdomen (s.266)
− On September 1st, 2015, the accused stated that he was packing his “shit” and leaving; he ripped the wireless telephone base off the wall; there was no other telephone in the home (s.430(4)).
[19] It is then that she states having communicated with her mother through Facebook messenger and asked her to call the police. She told her mother she was scared and needed her to come as soon as possible.
[20] Ms. Joubert testified that there were previous acts of violence. She states that they fought all the time. She denies having been violent with the accused. She admits that she would follow him around trying to talk to him and have him talk. She followed him from room to room to try and solve their issues. She knows that this would aggravate him.
[21] She did start to push him back but only in self-defence. She would retaliate by pushing him back when he pushed her first.
[22] She describes the following additional alleged acts of violence:
− (Crown counsel stated in submissions that these events are the factual basis for count #4 (s.266):
− In February or March 2015, while pregnant with their child Alexis, the accused would have pushed her backwards in her chest area using his two hands; she fell on the bed; they had been arguing and he felt she was in “ his face”; she was trying to get him to talk and was close to him; she was very close in front of him; she doesn’t recall being injured by this push (s.266)
(Crown counsel stated in submissions that these events are the factual basis for count #5 (s.266)
− In May 2015, they were fighting over something ridiculous; she wanted to talk to him and was following him around; he grabbed her by the arms and shoved her away from him; he also punched her a couple of times, with his fists on both upper arms; this left marks on her arms; she had handprints on her upper arms; she did not hit him (s.266)
[23] The complainant testified having called her mother that same day and asked her to come and pick her up. She went to reside with her mother for a week. She disclosed the incident to her mother who saw the bruises.
[24] She returned to the accused as he had made her feel things would be better. He apologized and made her believe this was a onetime thing. She believed him and went back home.
[25] Things were good for a little while but they continued to argue all the time and he became violent again soon thereafter.
− Crown counsel stated in submissions that these events are the factual bases for counts #6 (s.266) and #7 (s.266):
− a couple of weeks prior to the police being called, they were arguing and the accused grabbed her hair and ripped a “chunk” of her hair; this was in July or August 2015 (s.266)
− he grabbed her by the throat with his hands and chocked her on one occasion; he held her by the neck against a wall; she couldn’t breathe; this lasted for a few seconds; she believes this occurred in August 2015; she states “ … I want to say August 2015…” (s.266)
[26] The complainant alleges in her testimony that the accused broke all of her cell phones.
Crown counsel stated in submissions that these events are the factual basis for count #8, (s.430(4):
− The complainant testified that the accused broke all of her cell phones; he broke at least three throughout their relationship; he didn’t like her being on social networks; he broke the first one while they were living in Cornwall; he never broke any while residing in Green Valley (s.430(4)).
[27] Ms. Joubert is shown a number of photographs taken by the police approximately a week and a half after September 1st, 2015. She identifies these as showing the injuries and bruises caused to her by the accused person. These photographs were filed as Exhibits #1-A to #1-O.
[28] Finally, she states having confided in her friend Jessica about these alleged events. She told her a little bit in August 2015. Jessica saw the bruises in September 2015 after she had moved back to Cornwall.
[29] In cross-examination, the complainant disputes most of the suggestions put to her by counsel, namely: (Counsel’s suggestion are underlined).
− That she is uncertain: she agrees that she struggles with dates and times and things are jumbled up
− That the neighbour called the police on August 31st , 2015: it was on August 28th , 2015
− That she communicated with him over and over while he was away following the police’s attendance: she maintains that both sent messages back and forth
− That she begged him to come back home: she wanted him to return since they were in a relationship and he had children to care for
− That she would be violent with him: she only acted in self-defence; she never pushed first; she tried to talk to him
− That she struck him with a hard hat at a Carnival in Vankleek Hill in August 2014: they were arguing and he is the one who hit her on the head
− That she didn’t want him to go to work: she did not grab him by the collar; she never prevented him from going to work; not upset because he was working long hours;
− That she bruises easily
− That the Saran Wrap incident occurred on September 1st , 2015: she is adamant that this took place a couple of days before her mother called the police
− That the original argument with the dishes revolved around her hitting him with a pan over the head: she has no recollection of such an incident
− That she attacked him while he was in the washroom and stopped him from leaving: she has no recollection of such an incident
− That he pushed her because she was stopping him from leaving:
− That he told her he was leaving on that day: she was angry that he wanted to leave with their daughter
[30] The complainant agrees that she may be wrong on the date that the alleged scissor and Saran Wrap incident occurred when shown page 19 of the transcript of the July 21st , 2015 preliminary inquiry where she indicates that these incidents would have taken place on September 1st , 2015. She states that this “doesn’t change the fact that it happened”.
[31] The complainant agrees that she consumed speed and marihuana but that this does not affect her ability to recollect the events. She was not on drugs when this occurred.
[32] She also agrees that the telephone which is the subject matter of count #3 in the indictment was purchased by the accused.
[33] Finally, she states that the accused pushed her to the ground on several occasions.
Jessica Neville
[34] Witness Jessica Neville describes the complainant as her best friend. She has known her for 10 years and the accused for 3 years.
[35] She did not see the complainant while she was residing in Green Valley. She did however speak to her.
[36] The witness requires to refresh her memory with the statement she gave to the police on September 2nd, 2015 to specify when she was told by the complainant that the accused was violent with her. She couldn’t recall having received such information prior to September 2015.
[37] After reviewing her said statement, she now recalled being told this by the complainant 2 months prior to giving the statement.
[38] She testifies that the complainant told her that they were fighting, he was cornering her and putting his hands on her. She had told her that she should call the police.
[39] She also confirms having seen bruises on the complainant’s face and arms. She also noted that she had hair missing on her head. She saw this the day prior to giving her statement to the police.
[40] The witness also provided copies of her electronic Facebook communications with the complainant which took place on August 30th, 2015 at around noon.
[41] While initially objected to by defence, copies of these electronic messages were filed on consent as electronic documents under section 31.1 of the Canada Evidence Act. These were marked as Exhibit 2.
[42] These documents revolve around the complainant describing how the accused is being violent. The complainant communications include the following:
“I don’t know what to do anymore”
“ I have bald spots because he’s pulled so much hair out, bruises all down my legs, huge goose egg from my head hitting the floor, he crushed my leg with the sofa this morning so I have cuts and who knows what else…”
Rebecca Derouchie
[43] Witness Rebecca Derouchie is the complainant’s mother.
[44] She testifies that her daughter had made her aware of issues with the accused. She was told that there was a lot of arguing, pushing and shoving, he was punching holes in walls and broke a dresser.
[45] The complainant had called her on one occasion asking to be picked up. She had stayed over for a few weeks. Her daughter had been hit by the accused. She was worried for her.
[46] She also notes that the complainant had bruises and marks on her arms, legs and back. She had seen a print on her upper arm.
[47] She believes that it was in August 2015 that her daughter had resided with her for a while.
[48] The witness is given leave to refresh her memory on when her daughter had stayed with her by reviewing the statement she provided to the police on September 1st , 2015. She then indicates that it was in fact a few months prior to September and not in August as previously stated by her.
[49] Finally, she states that on September 1st, 2015, she had sent a message to her daughter in regards to some clothing. She explains that the complainant sent her a message asking her to call the police because Travis was hurting her.
Detective Constable Jason Cholette
[50] Detective Constable Cholette is a member of the Ontario Provincial Police. He is the investigation officer in this matter.
[51] He explained that at 11:19 a.m. on September 1st, 2015, he was dispatched to attend 20334 Station Road in Green Valley in regards to a female who was being hurt and needed assistance.
[52] He arrived at 11:31 a.m. and observed the accused inside a motor vehicle with the door opened. The accused was placed inside the police cruiser.
[53] The officer entered the home and saw the complainant lying in a fetal position on the floor in the kitchen against the cupboards. She was crying. She told the officer that she was hit to the head and stomach, she also told him that she had lied to the previous police officer.
[54] The officer then heard a loud noise and observed an older female approaching him and asking why her son was in a police cruiser.
[55] The accused was arrested for having assaulted the complainant.
[56] He explains having observed a roll of Saran Wrap located in the kitchen. He describes the roll as being hard as wood.
[57] The complainant provided a statement once at the police station.
Travis Tompkins
[58] The accused testified in this trial and denied all of the complainant’s allegations.
[59] He confirmed having been in a relationship with the complainant in 2014 and 2015. They have a daughter named Alexis, who was born on March 3rd, 2015.
[60] He states that their relationship was fine during the first year but that things changed once they moved to Green Valley. They were both consuming drugs on a daily basis.
[61] His evidence is that he never struck the complainant. In fact, he would have treated her like a queen while she was pregnant. She would have been violent with him on numerous occasions. He describes an incident in Vankleek Hill where she took his hard hat and hit him on the head with same because he had gone in her purse to get cologne. He reports that 3 ladies and a friend intervened on that occasion. This resulted in a big bump on his head.
[62] He indicates that he worked 80 hours per week in 2015 and that the complainant was not pleased with this as it impacted on her welfare cheque.
[63] The accused denies ever having struck her. It is possible that she was bruised by reason of their sexual activities.
[64] He states that he never pushed her on the bed. Nor has he ever placed his hand around her throat other than during sex.
[65] He has never broken her cell phones. He recalls a dog having chewed her cell on one occasion. He did snap an I-Pod while upset in July 2015 for which he had paid $ 35.
[66] He never tried to control her use of Facebook. He states being a “Hot head” but that he doesn’t control people. He didn’t care who she spoke to.
[67] Mr. Tompkins states that there was not violence by him in May 2015 which led to the complainant going to her mother for a while. His version is that he had left to go to his mother with their child. The complainant would have followed suit by going to her mother with the child Payton.
[68] He reports having told her not to come back to the home in Green Valley. She was gone for a week or so. She then begged him to come back. She was sorry.
[69] He ultimately chose then to return as he felt as if he was abandoning the child Payton for who he had acted as a father.
[70] His mom would have told him not to return.
[71] In regards to the events of August 30th , 31st and Sept 1st , 2015, he provides the following version of events:
− On August 30th , 2015, she woke him up at 9:00 a.m. for him to do dishes; he was tired as he worked 80 hrs per week
− He went to do dishes; she went to him while he was doing dishes and pushed him; she then grabbed a pan and hit him on the head with same… this resulted in a big hard spot on his head
− She also would have removed a neckless which caused him to bleed in the neck area
− She also caused a bruise on his arm
− He did nothing; he just stood there ; he lightly hip checked her;
− He confirms that the police attended; Constable Lalonde told him to go which he did; he went to his friend and neighbor Jason
− The complainant would have started to immediately send him text messages begging him to come back and that she was sorry
− He responded by telling her he would not return
− He did return late that night
− On August 31st , 2015, he was again gone all day; the complainant would have continued to text message him asking why he wasn’t home
− He states that his intention was to put an end to the relationship; his mind was made up that he was leaving
− He communicated this to his mother who was going to pick him up the following day with his stuff and Alexis
− He returned to the home and told the complainant he was leaving the following day; he slept at the home
− He reports that she threw a tantrum and blocked the doors as she didn’t want him to leave
− On September 1st, 2015, he woke up at 9:00 a.m. and started to pack his stuff
− He packed his clothing…his home phone…the internet box…dresser…crib
− He explains that he did not damage the phone that he had purchased at the dump… he just ripped the chord connected to the wall…He took these items as they were under his name
− He states that the complainant began to push him and begging him no to go that if he did, she would make his life miserable
− She was in his face so he pushed her; he ended up cornered and she was preventing him from leaving; she was stopping him from exiting the bathroom; he fell in a litter box; as she was pushing him
− He pushed her with both hands in the chest area so that he could leave
− He communicated with his mother who told him to go to his car, sit there and wait for her
− The police got there first
[72] In cross-examination, he testified that the incident of August 30th when she struck him with a pan and cut his neck by grabbing a necklace was not the first time the complainant had gotten out of control. The only thing he did was to hip check her and went back washing the dishes.
[73] He states that he told the complainant he was leaving her on August 30th. He was gone all day on August 31st. He had gone to the dump until midnight.
[74] He had to return to sleep at home on August 31st because he had no place to sleep. Jason had a full house and his mother lives in Alexandria.
[75] There was a conversation on August 31st and he explained to her why he was leaving. There was no altercation.
[76] She didn’t fall or hit anything when he pushed her as she was cornering him in the bathroom. She just got back.
[77] His evidence is that there was no physical contact by him at any time other than the hip check, the push to the chest and the throwing of the Saran Wrap which she would have first thrown at him.
[78] He is shown photographs of complainant and denies having caused any of the bruises seen on her. He states that she had scratched her hands while digging in the garden. She may also have injured herself by punching holes in the walls.
[79] He reports never having seen bruises on her body.
[80] He opines that the bruises may have been caused by everyday life by regular bumping or falling down.
[81] He recalls a nephew having slammed a door in her face and her falling down a set of stairs when she was pregnant and wanted to throw up. He also refers to the fact that they had rough sex. He states: “if you ask me to pin you down, I am going to pin you down to the bed.”
[82] He is questioned on how he described himself as “hot head”. When told that this entails being violent by definition, he explains that he didn’t understand the meaning of “Hot head”. In his mind it means having a bad temper… someone who gets angry. He explains that if you don’t get angry, you are not human.
[83] The accused again denies having been violent in May 2015.
[84] He was sitting in his car on August 30th when Constable Lalonde arrived. The officer would have seen his injuries… the handprint on his arm.
June Homer
[85] Ms. Homer is the accused’s mother.
[86] She explained that on September 1st, 2015, her son called and told her the complainant was throwing a fit. She told him to go in his car.
[87] She was going to pick him up with his belongings and her grand-child.
[88] She would have found out that he intended to leave the complainant on the Saturday and he confirmed on the Sunday.
[89] In cross-examination, she states that her son had left for one full night on August 30th and returned on August 31st to sleep there. Her evidence is that he slept at Jason’s on August 30th.
POSITION OF THE PARTIES
Crown
[90] The Crown’s position is that the evidence establishes the accused’s guilt beyond a reasonable doubt on each count.
[91] While the complainant may have certain difficulties with dates, in the end, she remains a credible and reliable witness.
[92] It is argued that she has been consistent throughout in her description of how she was assaulted by the accused. She has not changed her version of events. The Court is reminded that dates are not an essential element of the offences.
[93] The evidence of her friend Jessica Neville and mother Rebecca Derouchie serve to rebut the allegation of recent fabrication raised by defence while cross-examining the complainant. These individuals had been made aware of the assaults prior to the disclosure to the police on September 1, 2015. They had also seen the injuries on her body.
[94] The Crown’s suggestion is that there is a ring of truth to her evidence when she explains why she hadn’t initially disclosed the violence to the police. As explained by her , she was afraid of losing her children.
[95] So that, her evidence should be believed by the Court beyond a reasonable doubt.
[96] As for the accused, it is argued that he is not believable and as such, his evidence should not raise a reasonable doubt.
[97] His evidence is said to be inconsistent and contradictory on a number of points including the following:
− His suggestion that he treated her like a queen while she was pregnant, followed by a statement that he was never home and their relationship was not good while she was pregnant
− His evidence that he had told her to get out in May 2015 followed by a statement that he didn’t know she had left
− His evidence that she had thrown a tantrum on August 31st followed by a statement that they had talked and the mood was decent
[98] It is also argued that his credibility is impacted by his obvious attempt at painting the complainant in a very bad light, namely:
− she was on drugs
− she never worked
[99] It is suggested that he exaggerates and “back peddles” during his evidence. Furthermore, he speculates in his attempt to explain the bruises shown on the complainant in the photographs. He also raises explanations such as them having “rough sex” to explain these bruises which was never put to the complainant in her cross-examination.
Defence
[100] Counsel for the accused submits that the Crown has not proven guilt beyond a reasonable doubt. His view is that the complainant is not credible nor reliable. He describes the Crown’s case as a “moving target” by reason of significant uncertainties in the complainant’s evidence.
[101] She cannot be sure of when the alleged incidents took place. As she herself admitted during the preliminary inquiry, her recollection of events is all jumbled up in her mind.
[102] Counsel suggests that the concerns go beyond a question of when this would have occurred. She provides competing versions of events.
[103] In the end, the complainant should not be believed based on the following:
− Her story changes
− She can’t say when this happened
− She is mixed up in her dates
− She lacks specificity
− She cannot put events in context and explain how things started
[104] While the photographs show that she suffered injuries, counsel’s recollection of the evidence is that these were taken by the police on September 15, 2015. It is not for the accused to explain these bruises but it is up to the Crown.
[105] It is noted that Detective Cholette did not testify as to the injuries, if any, seen by him on September 1st, 2015 when he first encountered the complainant. This is said to be a lack of evidence.
[106] Defence submits that the Court should believe the accused’s evidence. If not, it should at least raise a reasonable doubt for the Court.
[107] The following considerations are raised in support of such a finding:
− He was straightforward during his testimony
− He was responsive
− He did not hesitate in his responses
− He remained consistent throughout
− He provided an entirely believable account
THE LAW
[108] In deciding this matter, the Court will be guided by the following relevant principles:
Fundamental Principles of our Criminal Law
The presumption of innocence provides that the accused is presumed innocent and so remains if and until the Crown proves his guilt.
The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person. The accused does not have to prove anything.
The Crown’s burden is to prove each of the essential elements of the offences beyond a reasonable doubt.
I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’s decision in R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, namely:
i) It is fundamental to the presumption of innocence;
ii) It is not a doubt which is far-fetched or frivolous;
iii) It is not based on sympathy or prejudice; it is based on reason and common sense; it is a doubt that logically arises from the evidence or the lack of evidence;
iv) It is not enough for the Court to believe that an accused is likely or probably guilty;
v) However, the Crown is not required to prove guilt on the standard of absolute certainty;
vi) The Courts’ task is to consider all of the evidence and decide whether it is sure that the accused committed the offence; an acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure;
vii) Where reliability and credibility are the ultimate issues, the Court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility;
Since the accused has testified in this trial and the outcome revolves around an assessment and appreciation of the credibility and reliability of the witnesses, the proper analytical framework is found in R. V. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742:
Firstly, if the Court believes the accused, an acquittal must follow
Secondly, if the accused is not believed but his evidence raises a reasonable doubt, then he must be found not guilty
Lastly, even if the Court is not left with a reasonable doubt with the accused’s evidence, the question for the Court becomes whether based on the evidence that is accepted, it is convinced beyond a reasonable doubt by this evidence that the accused is guilty
Assessment of Reliability and Credibility
[109] In assessing the evidence of the witnesses, the Court must carefully and with an open mind consider all of the evidence. It must decide how much or little to believe and rely upon the testimonies.
[110] The Court may believe some, none or all of a witness’s evidence.
[111] This assessment is an exercise in common sense. There is no magic formula, no crystal ball, no scientific formula to assist the Court.
[112] The Court is alive to the important distinctions between the concepts of reliability and credibility. Credibility relates to a witness’ sincerity and belief that he or she is speaking the truth. Reliability relates to accuracy. It is possible for a credible witness not to be reliable.
[113] In properly assessing the witnesses in this trial, the Court will consider all of the circumstances including the following:
The witness’s ability to observe
The ability to recall the relevant events
How the witness presents in the witness box; this measure does not mean whether the witness appears to tell the truth ; it is not based on an “appearance of sincerity” as looks can be deceiving; what it does mean is that having regard to the particulars of the witness such as age, sophistication and limits, it is proper to consider things such as:
• Whether the witness was argumentative
• Whether he or she was responsive to the question
• Whether the witness was evasive
• The presence of hesitation in answering
• The showing of appropriate emotions
Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances
Whether, to the contrary , the version is contradicted by such extrinsic evidence
The ability to provide a detailed account of the relevant event; details which are significant
The presence of an interest in the outcome, a motive, any bias or partiality; the Court is mindful that the question of motive is to be addressed with caution; I am guided by the instructions of the Ontario Court of Appeal in R.v. Batte 2000 CanLII 5751 (ON CA), [2000] O.J. no 2184:
• There is no burden on an accused to demonstrate that a complainant has a motive to fabricate
• The absence of a demonstrated motive to fabricate doesn’t necessarily mean that there is no motive
• Nor does the absence of a demonstrated motive to fabricate establishes that the witness is telling the truth
• The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility
Whether the witness’s version is internally consistent being mindful that some details may be more significant than others
Whether the witness’s version is plausible when looked at through the lens of common sense, life experience, logic and/or reason
Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute.
Whether the witness has a criminal record for crimes involving dishonesty
Distinct Legal Issues Raised in this Trial
Time of Offences Alleged in Indictment
[114] As stated by the Supreme Court of Canada in R. v. B.(G.) 1990 CanLII 7308 (SCC), [1990] S.C.J. no 58 at paragraph 43:
“43… the following conclusions can be drawn from the authorities:
While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified. The particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction.
If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed.
If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence
If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained.
Mischief and Colour of Right
− Section 429(2) of the Criminal Code provides as follows:
429(2). No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
− A colour of right is an honest belief in a state of facts or civil law which, if existed would negate the mens rea of an offence; s.429(2) does not place a burden of proof upon the accused but rather it is for the Crown to establish the absence of legal justification or excuse and colour of right.
R. v. Creaghan (1982) 1982 CanLII 3859 (ON CA), 1 C.C.C. (3d) 449
R. v. Kishayinew [2014] S.J. no 714
R. v. Hajek [2009] O.J. no 837
Prior Consistent Statements
− It is well established that prior consistent statements are generally inadmissible because they are usually viewed as lacking probative, value and being self-serving
R. v. Stirling 2008 SCC 10, [2008] 1 S.C.R. 272
R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R 788
− There are some exceptions to the rule that prior consistent statements are inadmissible. The exception raised in this trial is recent fabrication
− Where there is an allegation of recent fabrication in connection with a witness, a prior consistent statement is admissible to demonstrate that the witness’s story was the same prior to the alleged fabrication. It is not admitted to prove the truth of its content. It neutralized the challenge or allegation of recent fabrication. It does not serve to show that the statement is true or that the witness is likely telling the truth because they said the same thing before. The admission of the prior consistent statement may impact positively on the witness’s credibility insofar as admission of the statement removes a motive to fabricate
- R. v. D.B. 2013 ONCA 578, [2013] O.J. no 4365
State of Mind Exception to the Hearsay Rule
− Declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion
- R. v. Griffin 2009 SCC 28, [2009] 2 S.C.R. 42
− Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its content, rather only to establish that the statement was made. That the statement was made may afford circumstantial evidence of some fact of importance in the proceeding, as for example the declarant’s state of mind. Where the basis upon which the prior statement is admitted is that it affords circumstantial evidence of the declarant’s state of mind, that state of mind must itself be relevant in the proceedings
- R. v. M. C. 2014 ONCA 611, [2014] O.J. no 3959
DISCUSSION
[115] Having considered the accused’s evidence separately and in the whole of the evidence, the Court finds that he is not believable. Nor is the Court left with a reasonable doubt by his testimony. He is seen by the court as not being credible and reliable.
[116] His tone and manner of testifying were found, at times, to be inappropriate. He was unresponsive, challenging and somewhat hostile. The Court noted the following responses given by the accused in cross-examination:
− “ you can suggest whatever you want, I say it’s false”
− “ it’s quite possible, sexual activity does amazing things”
− “…like I said, you can suggest whatever you want”
− “Understand, I was gone… what do you want to happen when I’m not there…”
− “May I suggest that you are wrong…”
[117] His demeanor in the witness box is certainly supportive of how he is portrayed by the complainant in terms of aggressiveness and how he qualifies himself as a “hot head” which he understands to mean someone who has a bad temper and gets angry.
[118] The end result is that the Court is left with the sense that the accused was more intent on arguing than responding to questions.
[119] The accused’s attempt at presenting himself as a victim of violence at the hands of the complainant is found to be an unreasonable and improbable proposition.
[120] When one considers his own description that he is a “hot head” which again he defines as having a bad temper and getting angry, coupled with his Courtroom demeanor, it is highly improbable that he would have just stood there and did nothing when he was allegedly struck with a pan over the head and cut to the neck by the complainant. Nor is it reasonable to suggest that he would have lightly pushed her on the chest when she had allegedly cornered him and prevented him from leaving.
[121] The court is mindful that an accused person has no burden of proof and is not required to explain the presence of bruises on a complainant. However, recorded proof of injuries is extrinsic evidence through which a version of event may be measured by the Court.
[122] The accused version is that other than a hip check and a two handed push to the chest, he did not otherwise touch the complainant at the relevant time. This does not account for the bruises revealed through the photographs filed as Exhibits. The bruises on her arms and legs are not, as suggested by him, expected everyday life bruising.
[123] The accused testified that, historically, the complainant was bruised through them having “rough sex”. He suggested that he never placed his hands around her neck other than during this “rough sex”. He explained “ if you ask me to pin you to the bed, I will pin you to the bed”
[124] The “rough sex” as a possible explanation for bruises on the complainant, was raised by the accused at the outset of his examination in chief. This suggestion was never put to the complainant in cross-examination. Crown counsel raises the rule in Browne v. Dunn in light of such failure.
[125] As explained by the Ontario Court of Appeal in R. v. Quansah 2015 ONCA 237, [2015] O.J. no 1774, the rule in Brown v. Dunn is premised on the notion that fairness requires a party, intending to impeach a witness called by an opposite party to give the witness an opportunity while in the witness box, to provide any explanation the witness may have for the contradictory evidence.
[126] Failure to provide this opportunity tends to support an inference that the opposing party accepts the witness’s evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later.
[127] Being a rule based on fairness it is said not to be a “fixed rule”. Its application lies with the discretion of the Court and depends on the circumstances of each case.
[128] The rule does not require that every scrap of evidence on which a party intends to contradict the witness be put in cross-examination
[129] The effect of the rule will vary in accordance with the subject matter not touched in cross-examination. A subject which is of little significance in the case and the resolution of critical issues will likely have little bearing on an accused’s credibility. However, the absence of cross-examination on a central feature is likely “to have a more telling effect on an accused’s credibility”.
[130] Also, the rule is not violated where it is clear, in all the circumstances “that the cross-examiner intends to impeach the witness’s story”.
[131] The Court is of the view that while the failure to cross-examine the complainant on the issue of the “rough sex” as a possible explanation for the bruises goes to the weight to be given to the accused’s evidence on this subject matter, it does not allow for the drawing of a negative inference. This conclusion is based on the following considerations:
− The complainant’s cross-examination made it clear that the accused was denying having caused the bruises as suggested by her; the suggestion was that she was making all of this up because he was leaving her
− There was no suggestion by the accused that the bruises shown on the photograph Exhibits were caused through “ rough sex “
[132] In the end, there is no suggestion by the accused that they had “rough sex” during the relevant period of time. So that, “rough sex” cannot be an explanation for the bruises on the complainant.
[133] Therefore, the photograph Exhibits of the complainant’s bruises are seen as objective extrinsic evidence which is not consistent with the accused’s version of events. His version does not allow for these injuries.
[134] The accused admits having lied to Constable Marty Lalonde who attended the home on August 30th, 2015 in response to a call by a neighbour. He provides no explanation as to why he did not disclose having been struck to the head with a pan and cut to the neck by a necklace pulled by the complainant. This, amounts to an admitted prior inconsistent statement to the authorities. In the absence of a reasonable explanation, this prior inconsistent statement is found to impact on his credibility.
[135] The accused’s encounter with Constable Lalonde is significant to his version since he states that the officer knew he was lying and saw his injuries. Obviously, the presence of these injuries is relevant and potentially supportive
[136] The Court notes that Constable Lalonde who was called as a witness by the Crown, was not questioned in cross-examination in regards to the presence of injuries on the accused. Failure to illicit potential corroborative evidence impacts on the weight to be given to the accused’s evidence that he had been injured by the complainant prior to Constable Lalonde’s attendance at the home.
[137] The Court’s finding that the accused is not a credible and reliable witness is compounded by the cumulative effect of the following considerations:
− There is much confusion, contradiction and uncertainty in regards to the events of August 30th and 31st , 2015:
➢ The accused testified that he didn’t sleep over at Jason’s because he had a full house; his mother testified that he had slept at Jason’s on August 30th
➢ The accused stated that he couldn’t leave sooner because his mother who resides in Alexandria couldn’t pick him up; his mother testifies that she came over at Jason’s and brought coffee.
➢ Defence evidence suggests that there was a car available to the accused; he stated that on both occasions when the police attended, he went in his car; this is confirmed by Constable Cholette; his mother told him to go and wait in his car; there is no explanation as to why the accused didn’t leave in this car and why he had to wait for his mother to pick him up
➢ The accused testified that the complainant had thrown a tantrum when he told her he was leaving when he returned home on August 30th ; this is not possible if he slept at Jason’s as suggested by his mother; he also suggested that the complainant didn’t know he had returned as he had stayed at the dump up to midnight and left early the following morning; furthermore, he explained that the mood was decent and they had talked
− His description of their relationship in 2014 and 2015 is also problematic:
➢ The accused testified that their relationship was fair up to the move in Green Valley; they met certain people and got involved with drugs; he treated her as a queen when she was pregnant; he later provided the following contradictory evidence:
• The complainant cheated on him and was told so by the male she cheated with
• She was violent with him; on one occasion she hit him with a hard hat at a fair in Vankleek Hill; people had intervened to help him
• He left and joined a Carnival in August 2014; he did not return before October 2014 and now had another girl with him; they resumed their relationship around Christmas after meeting in a store
− The Court agrees with Crown counsel’s point that the accused paints the complainant in fairly bad light:
• She cheated on him
• She was violent
• She was on drugs
• She didn’t want him to work long hours so as not to reduce her welfare
• The children were mostly cared for by their grand-mother
• She wanted “ rough sex”
• She punched holes in walls
• She never worked
[138] The end result is that the accused is found not to be credible and/or reliable. His evidence does not raise a reasonable doubt for the Court.
[139] The court has considered June Homer’s evidence and finds that it supports the accused’s version that he had contacted his mother on September 1st, 2015 and that she had told him to wait for her in the car as she would pick him up.
[140] Constable Cholette confirmed that Ms. Homer attended the home asking why her son was in the police cruiser.
[141] However, the question remains why she didn’t tell her son to simply leave in this car as oppose to waiting for her.
[142] The Court notes that he is contradicted by his mother on the following 2 points:
− Whether she came over as testified by her; he stated she couldn’t come and get him sooner
− Whether he had slept at Jason’s on August 30th as testified by her; he stated that he didn’t because Jason has a full house
[143] Therefore, the evidence of June Homer does not rehabilitate the concerns raised by the accused’s testimony.
[144] As will be discussed and explained later in these reasons, the Court finds that the Crown has established the essential elements for most but not all of the offences set out in the indictment.
[145] The Court finds that the complainant is a credible and reliable witness. She is believed beyond a reasonable doubt. Again her evidence supports some but not all of the offences argued by the Crown.
[146] Her demeanor during her testimony is found to have been appropriate in the circumstances. Specifically,
− She was responsive to the questions and not argumentative
− She didn’t venture to guess when she was unsure
− She appeared somewhat anxious but tempered
− She did not attempt to paint herself in positive terms:
• She admitted that she was in his face
• She would follow him around and this would aggravate him
• During one of the incidents, the pushing was back and forth; she used the expression visa-versa
[147] There is no question that the complainant struggles with dates and the sequence of events. She readily concedes that she has difficulties with dates and times. She cannot place things in order. She uses the expression “jumbled up” in her mind.
[148] This does not, however, detract from the Court’s conclusion in regards to the overall quality of her testimony.
[149] The evidence reveals that she has historically been subjected to many instances of violence. So that confusion on dates, times and sequence is not unusual.
[150] Furthermore, the fact that she is unreliable as to dates and times is not significant because dates and times are not essential elements of the offences. They are not a crucial part of the prosecution nor defence which is that none of this violence happened as oppose to it couldn’t have happened at a given time.
[151] Her testimony does not reveal any significant contradiction in regards to the events which are the subject matter of the charges. She is consistent throughout on the essential elements to be proven by the Crown beyond a reasonable doubt. She unequivocally maintained that she was assaulted by the accused as described.
[152] The complainant’s evidence finds support in the extrinsic evidence presented by the Crown. The Court notes the following evidence:
i) the photographs of the complainant’s bruises which were filed as Exhibits
• The bruises shown on these photographs support her version
• The photographs showing that a chunk of hair was missing are especially compelling
ii) Constable Cholette’s evidence of how the complainant was in a fetal position on the kitchen floor and crying when he attended the home on September 1st, 2015
iii) evidence of Jessica Neville
− She describes having seen bruises on the complainant the day prior to her giving a statement to the police on September 2nd, 2015
− The complainant had told her about the violence 2 months prior to September 2nd, 2015; it is clearly understood that this prior statement is not used for the truth of its content; nor does it bolster the complainant’s credibility on the notion that she must be telling the truth because she said the same thing on a prior occasion; it serves to rebut the clear suggestion made to her in cross-examination that she made this up because he was leaving her and she told him she would make his life miserable; it counters the suggestion that she had a motive to make false allegations; it neutralizes the existence of a motive to fabricate which in turn, reflects positively on her credibility
− The same reasoning applies in relation to the August 30th, 2015, electronic messenger communications between the complainant and Jessica Neville
• The narrative is such that the accused would not at that point have told her of his intention to leave prior to this electronic conversation which was at around noon and 1:00 p.m. and yet she describes the physical violence in fairly graphic terms.
− The electronic messenger communications of August 30th, 2015 also goes to lend support to the complainant’s state of mind at the relevant time; specifically, she expresses the fear that her children would have been removed by the authorities had she disclosed the physical abuse to Constable Lalonde; her failure to do so was raised during her cross-examination and thus, her state of mind is relevant ; this is not considered for the truth of content but on the basis her state of mind ( ie. fear) which was made relevant as noted above.
Iv) Evidence of Rebecca Derouchie
− She describes having seen bruises on the complainant when she stayed with her for a while
− The complainant had disclosed to her that she was being hit by the accused; this prior consistent statement is considered to rebut the allegation of recent fabrication as discussed earlier
− The electronic messenger message sent to her by the complainant requesting that she contact the police is admissible to support her state of mind ( i.e. fear) at the relevant time
[153] The suggestions that the complainant is less worthy of belief because she did not initially disclose the incident to the police in May and August 2015 and that she returned to reside with the accused, is rejected by the Court for the following reasons:
− In May 2015, she thought he would change
− She feared that the authorities would remove her children
− I adopt the reasoning of Justice Hill in R. v. D. B. 2013 ONSC 7753, [2013] O.J. no 6476 found at paragraph 142:
“142… While expected human behaviour would predict that a robbery victim would not remain in the company of the perpetrator, would report the crime in a timely way to the police and not advance untrue excuses to explain away the robbery, experience tells us that this “normal” behaviour does not necessarily apply to a woman subjected to abuse by an intimate partner. A victim of domestic abuse, in love with her abuser, and having economic and psychological and social dependencies within their relationship, is very often prepared to tolerate if not forgive the violence on account of emotion, perceived necessity, or shame or embarrassment. In the circumstances of the present cases, while these factors do not confirm the fact of abuse by the accused, neither do they detract from the complainant’s credibility.”
[154] Therefore, the Court finds that the complainant is credible and reliable. However, as already noted, her evidence does not provide the factual bases necessary to support a finding of guilt for each offence in the indictment.
CONCLUSION
[155] The Court’s findings on each count are as follows:
Count #1: the Court is convinced beyond a reasonable doubt that the accused wrapped a sweater around his fist and hit the complainant once or twice in the abdomen; he is accordingly found guilty under s.266
Count #2: the Court is convinced beyond a reasonable doubt that the accused struck the complainant twice over the front of her head with a roll of Saran Wrap; he is accordingly found guilty under s.267(1)(a)
Count #3: the Court is left with a reasonable doubt as to whether or not the accused acted without legal justification or excuse and colour or right when he removed the wireless telephone base off the wall; the uncontested evidence is that he had purchased this item and was leaving the residence; he is accordingly found not guilty under s.430 (4)
Count #4: the Court is convinced beyond a reasonable doubt that in February or March 2015, while the complainant was pregnant, the accused pushed her in the chest area with 2 hands which caused her to fall on the bed; he is accordingly found guilty under s.266
Count #5: the Court is convinced beyond a reasonable doubt that in May 2015, the accused grabbed the complainant by the arms and shoved her away from him ; he also punched a couple of times on both upper arms; he is accordingly found guilty under s.266
Count #6: the Court is convinced beyond a reasonable doubt that a couple of weeks prior to the police being called, the accused grabbed the complainant’s hair and ripped a “chunk”; he is accordingly found guilty under s.266
Count #7: the Court is convinced beyond a reasonable doubt that she was grabbed by the throat and held against the wall; the Court is mindful that the complainant is uncertain as to when this incident took place; he is accordingly found guilty under s.266
Count #8: the Court is left with a reasonable doubt; as there is no evidence that the accused broke the complainant’s cell phone during the period set out in the count; the complainant’s evidence is that he did not break her cell phone while residing in Green Valley; nor is there any description of how these cell phones would have been broken; he is accordingly found not guilty
Count #9 and #10 : the Court is convinced beyond a reasonable doubt that the accused picked up scissors from the kitchen table and stated that he would cut her; she was afraid and closed her eyes; the combination of the words and the taking of the scissors coupled with reasonable fear, establishes each of the essential elements of an assault with a weapon; he is accordingly found guilty under s.267 (a)
− while the facts also establishes the elements of threatening under s. 264.1, the rule against multiple convictions set out in R. v. Kienapple makes it such that convictions ought not to be registered when in substance only one crime has been committed; counts #9 and #10 have the same or substantially the same elements; a stay of proceedings will therefore be registered under count #9, being s.264.1
Count #11: the court is convinced beyond a reasonable doubt that on or about August 30th, 2015, the accused picked up the complainant and threw her on a bed and flipped a loveseat which struck her bellow her knees; he is accordingly found guilty under s. 267 ( a)
Count #12: the Court is left with a reasonable doubt in regards to the incident which took place close to the sink; the complainant states that both were pushing and shoving… “It was vice versa”; this raises a reasonable on the question of consent; the accused will accordingly be found not guilty under s.266
Justice Ronald. M. Laliberté
Released: October 19th, 2017
CITATION: R. v. Tompkins, 2017 ONSC 5524
COURT FILE NO.: 16-55
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Travis Tomkins
REASONS FOR JUDGMENT
Justice Ronald M. Laliberté
Released: October 19th, 2017