COURT FILE NO.: CR-16-1341
DATE: March 2, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Caitlin Downing for Her Majesty the Queen
- and -
JOSEPH COUVIEAU
Adrian Cleaver, for the Accused
Accused
DATE HEARD: February 26, 27 & 28, 2018
REASONS FOR DECISION
James, J.
[1] This case involves a 7 count indictment against Joseph Couvieau who is alleged to have assaulted Tammy Leclaire on 3 occasions between 2014 and 2016.
[2] Mr. Couvieau is 39 years old. He moved in with Ms. Leclaire in late 2013. Mr. Couvieau’s father, Andy moved in a short time later. They lived together in Ms. Leclaire’s home on Dufferin Street in Renfrew until about August 2016.
[3] The first incident is said to have occurred on March 15, 2014 at the house on Dufferin Street. Ms. Leclaire testified that she and Mr. Couvieau argued frequently. She said he was a possessive and jealous partner. Her evidence was that on the day in question they were arguing about a former boyfriend of Ms. Leclaire and Mr. Couvieau accused Ms. Leclaire of being unfaithful to him while he was in jail. They were standing in the kitchen. They were yelling at each other. Mr. Couvieau Sr. was in his bedroom. Mr. Couvieau approached Ms. Leclaire and knocked her backwards with his chest in an action sometimes referred to as chest bumping. Her back struck the dish drying tray on the kitchen counter. Mr. Couvieau is several inches taller than Ms. Leclaire and at least 50 pounds heavier. Neither of them had been drinking. Mr. Couvieau left the house to get a coffee. There was no discussion of the incident later.
[4] I should add at this point that while the defense called evidence from Andy Couvieau, the accused did not testify.
[5] The next incident is alleged to have occurred on or about December 27, 2014. They had been at a dance that evening. Mr. Couvieau took issue with the fact that Ms. Leclaire had spoken with a male friend at the dance. She said they both had consumed alcohol before and at the dance. Mr. Couvieau may have had 2 beer before they left the house and about 4 at the dance. Ms. Leclaire said she had a couple of beer before and 2 at the dance.
[6] She said Mr. Couvieau was agitated as they got ready to leave the dance. He yelled at her for flirting. Ms. Leclaire knew there would be a fight when they got home. Mr. Couvieau walked home. Ms. Leclaire took a taxi and got home before him.
[7] They argued when he got home. At one point Mr. Couvieau flipped the kitchen table on its side, spilling tea and breaking the cup and an ashtray that was on the table.
[8] She said a lit cigarette fell onto an area rug and burned a hole. Mr. Couvieau went into their bedroom. A few minutes later the argument resumed.
[9] As Ms. Leclaire was standing with her back to the bathroom door Mr. Couvieau is alleged to have pushed her backwards with his chest against the bathroom door. A plaque hung from a nail on the outside of the door. Ms. Leclaire came in contact with the nail and she said it made a mark near the base of her neck. She described the contact as fairly forceful. He also put his hands on her shoulders and pushed her back. On an earlier occasion she said his hands had remained at his sides.
[10] Ms. Leclaire made some notes of the state of the relationship starting about 10 days before this incident. The notes chronicle the details of their arguments and disputes. The note for December 28 refers to the recent chest bumping incident in the following terms:
December 28
I thought if we went out Sat night that we might be able to have some fun but again I was wrong and when you flipped out on me and pushed me twice into the wall and slapped me twice you scared me to death I know one thing that will never happen again no one has ever put their hands on me and you won’t do that to me again. You could see the bruise on my face and the bruise on my shoulder the next day and I didn’t even get a I’m sorry from you. U now know that I’m not ever going to be good enough for you and now am scared every day because I don’t know when your going to snap again and is it going to be worse. I just know that I can’t live like this anymore.
[11] Ms. Leclaire kept these notes to herself until after she split up with Mr. Couvieau.
[12] The third and final incident is alleged to have taken place on August 5, 2016. It was in the morning. They were arguing in the kitchen. The argument had been going on for over two hours. They were both yelling at each other. Ms. Leclaire got up from the kitchen table to go to the bathroom. She said Mr. Couvieau charged towards her, grabbed her shoulders and head butted her in the right temple area of her head.
[13] There is a serious question about whether Mr. Couvieau used his hands to slap or push Ms. Leclaire in addition to the head butt because at the preliminary hearing and in her police statement she never referred to being slapped or said that he used his hands as part of the assault.
[14] Ms. Leclaire testified that she immediately went towards the front door to exit the house. Mr. Couvieau got there before her and prevented her from leaving. He held his hand against the door and held Ms. Leclaire back from the door with his other hand. She turned away and went towards the back door. Again Mr. Couvieau got there before her and blocked her way. He kept her from going outside. She then went into the bathroom and sat on the toilet. The door was not closed. She felt faint and slipped off the toilet. Both Mr. Couvieau and his father came to her assistance. When she recovered she told him to leave. That was basically when their relationship ended.
[15] Ms. Leclaire made a recording of their argument with her cell phone. Ms. Leclaire made numerous recordings of their arguments. The phone was placed on the top of a book case by their bedroom door. Ms. Leclaire said that the phone was recording their argument when Mr. Couvieau head-butted her. The recording is not very clear but it is possible to discern their angry exchanges.
[16] There is a point in the recording when Ms. Leclaire says, “get away from me Joe” and something about “touching her again” which she said was immediately after Mr. Couvieau head butted her. The tone of her voice changes at that point and it sounds like she is hyperventilating or having a panic attack. The recording also supports the impression that her anger escalated to a higher level as she repeatedly tells him to get out.
[17] Later that day Ms. Leclaire took some photographs of injuries to her face and right eye. She said she took a photograph of the image of her looking into a mirror. One of the photographs clearly shows bruising around her right eye that she said was the result of the head butt by Mr. Couvieau earlier that day. She said the bruise was about the size of a silver dollar and it took about 3 days for the swelling to disappear.
[18] The fact that Ms. Leclaire was injured was confirmed by two other people. The court heard evidence from Cathy Radema, age 51, who described herself as a friend of Ms. Leclaire. She recalled having a coffee with her in August 2016 while sitting in a park. When Ms. Leclaire removed her sunglasses Ms. Radema observed that she had a black eye. It was on the right side of her face. Ms. Leclaire told her that Mr. Couvieau had head butted her a few days before. She said Ms. Leclaire was shaking and crying when she described what happened. When Ms. Radema asked her if there had been other incidents of abuse, Ms. Leclaire said no. Ms. Radema confirmed that the photo of Ms. Leclaire’s eye that was filed as an exhibit was consistent with the black eye she observed that day in the park.
[19] In cross-examination defense counsel suggested that Ms. Radema’s evidence was tainted by the fact that she had read Ms. Leclaire’s account of the assault in the transcript of her police statement. Ms. Radema said that she read to page 25 of the transcript but Ms. Leclaire’s account of the incident appears further on in the transcript.
[20] Crown counsel also adduced evidence from Shane Curry, one of Ms. Leclaire’s neighbours. He said that he observed bruising around Ms. Leclaire’s eye in August 2016. When he asked her what happened, Ms. Leclaire told him that Joe, referring to Mr. Couvieau, had head butted her. He wasn’t sure if she actually said his name. He observed that Ms. Leclaire seemed shaky as she described what happened.
[21] The evidence of third parties that she had a black eye is clearly admissible but their account of Ms. Leclaire’s prior statement that Mr. Couvieau had head-butted her as corroborative of her trial testimony is problematic. A prior consistent statement can, however, be used to counter an allegation of recent fabrication. In this case the defence suggested that Ms. Leclaire fabricated her allegations against Mr. Couvieau as revenge for the fact that he made a complaint to the police about Ms. Leclaire hacking into his Facebook account. The evidence that she told people about the head butt before he complained to the police about her is admissible for that limited purpose.
[22] The only defense witness was Mr. Couvieau’s father, Andy Couvieau.
[23] Mr. Couvieau Sr. is 67 years old. He moved into Ms. Leclaire’s home not long after his son took up residence there. His son was in jail for several months while Mr. Couvieau Sr. stayed at Ms. Leclaire’s house. He said that not long after his son was incarcerated, Ms. Leclaire’s former boyfriend, Derek Peplinski, started visiting the house frequently. Ms. Leclaire’s relationship with Mr. Peplinski was often the reason for the arguments between Mr. Couvieau and Ms. Leclaire. He said Ms. Leclaire asked him not to tell his son that Derek was visiting. Mr. Couvieau Sr. said he saw Ms. Leclaire and Mr. Peplinski kissing and he didn’t like it. He said that one night he observed them having sex on the patio at the back of the house.
[24] He said he never saw his son be violent towards Ms. Leclaire. He never saw her with an injury. He recalls the day when Ms. Leclaire was upset in the bathroom but he doesn’t know why she was upset. He agreed that they had frequent arguments. On a couple of occasions he saw Ms. Leclaire banging her fists on Mr. Couvieau’s chest.
[25] In cross examination Mr. Couvieau Sr., who is not in the best physical condition and appeared older than his 67 years, agreed that he is very dependent on his son to assist him with the tasks of daily living. He also agreed it would be difficult for him to manage if his son had to go back to jail.
[26] I will now turn to a consideration of the legal issues involved in this case.
[27] Defense counsel submits that there are too many inconsistencies in Ms. Leclaire’s evidence to prove Mr. Couvieau’s guilt beyond a reasonable doubt. For example, regarding the first incident, there is a serious question whether it occurred at all. Exhibit 13 is a letter Ms. Leclaire sent to Mr. Couvieau while he was in jail. This would have been after the 1st alleged assault in March, 2014. In this letter she says that Mr. Couvieau has always treated her well and never once did she worry about him hitting her or anything like that. The only time he frightened her was one day when he was yelling at her.
[28] Also, when Ms. Radema saw her black eye and asked her if there had been previous abuse, Ms. Leclaire said no.
[29] Regarding the second incident in December, 2014 Ms. Leclaire gave differing accounts of what injuries she sustained. Prior to trial Ms. Leclaire had never mentioned the injury to her back as a result of being knocked backwards and hitting the nail on the outside of the bathroom door. At the preliminary hearing she said Mr. Couvieau’s hands were at his sides and her police statement does not refer to any slapping or grabbing during the incident.
[30] Regarding the third incident, the injury to her face may have occurred when she slipped off the toilet. At the preliminary hearing she agreed that this was a possibility. Also she claimed to Mr. Curry that she had to barricade herself in the bathroom when at trial she said she left the door open.
[31] There was considerable delay in reporting the assaults and it is apparent when you listen to the recordings, Ms. Leclaire was an active participant in the arguments. The suggestion that she did not report the abuse due to fear of reprisals by Mr. Couvieau is not credible. The defence says she falsely reported Mr. Couvieau to the police in response to his complaints to the police about her. She made up the allegations in revenge.
[32] And finally, Mr. Couvieu Sr’s evidence did not support the version of events described by Ms. Leclaire. Mr. Couvieau Sr. was a credible witness, his testimony was even-handed and he was not prone to exaggeration.
[33] When the defence calls evidence that contradicts the evidence proffered by the Crown, the court must consider and apply the framework outlined by Justice Cory in R.v. W(D). When credibility is important to the determination of the case, if the court believes the defence evidence, the accused is entitled to be acquitted. If the defence evidence is not believed, it may raise a reasonable doubt and again the accused is entitled to an acquittal. If the court does not believe the defence evidence and it does not raise a reasonable doubt, the court cannot safely convict the accused unless convinced by evidence that the court accepts that the guilt of the accused has been proven beyond a reasonable doubt.
[34] In this case Mr. Couvieau Sr. said he never saw his son assault Ms. Leclaire and never saw her with an injury. Also he said that Ms. Leclaire’s relationship with her former boyfriend Derek was much more serious than what Ms. Leclaire was prepared to acknowledge and this damaged her credibility.
[35] I will now deal with the various counts individually.
[36] Count 1 is the assault on March 15, 2014. Even if I was to conclude that this chest bumping incident probably occurred as Ms. Leclaire described it, Ms. Leclaire’s letter (Exhibit 13) where she says Mr. Couvieau never hit her or anything like that raises a reasonable doubt and I find Mr. Couvieau not guilty.
[37] Count 2 relates to the assault on December 27, 2014. I find Mr. Couvieau guilty on this count. I accept Ms. Leclaire’s account of the sequence of events. While there is some uncertainty about any grabbing or slapping, the essential allegations regarding the chest bump have been consistently maintained. I note that in the journal entry for December 28 (Exhibit 8), which is the most contemporaneous record of the incident, Ms. Leclaire refers to being pushed twice and slapped twice. I find that this note is corroborative of the allegation that an assault involving chest bumping occurred. I have considered her denial to Ms. Radema that there were not previous incidents of abuse. The chest bumping was qualitatively different than the head butting allegations in that there were no lasting injuries from the chest bumping. I accept Ms. Leclaire’s evidence that she was concerned that her friend might do something if she knew of previous abuse.
[38] Count 3 relates to the mischief charge involving the broken tea cup and ashtray when Mr. Couvieau is alleged to have overturned the kitchen table in anger moments before the assault referred to in count 2. There was a lit cigarette burning in the ashtray that fell on an area rug when the table was flipped over that burned a hole in the rug. Ms. Leclaire testified that there was a lamp on the table as well which she referred to as “my lamp’ just as she referred to the rug as “my rug” but the lamp was not damaged. I find Mr. Couvieau not guilty on this count. I accept that he flipped the table over as described by Ms. Leclaire but I note that she did not refer to the ashtray and the tea cup as her property as she did when referring to the lamp and the rug. An inference may be drawn that this differentiation was made because she did not own these items as alleged in the indictment. There was no photographic evidence of the hole in the rug. The alleged damage to the rug was not described in any detail- not the location or size of the hole nor was there any evidence of the condition or value of the rug or whether the hole was readily discernible or not.
[39] Count 4 relates to the allegation of a head butt on August 5, 2016. I find Mr. Couvieau guilty on this count. I reject the evidence of Mr. Couvieau Sr. that he never saw Ms. Leclaire with any injuries. Mr. Couvieau Sr. had a strong motivation to give evidence that favoured his son. I had the impression that he was very concerned about how he would manage if his son was sent to jail by the way he acknowledged that things would be difficult for him if this occurred. I have no doubt that Ms. Leclaire sustained a black eye in August 2016 and it is highly probable that it would have been apparent to Mr. Couvieau Sr. I accept her evidence that it was caused in the manner she described. Her oral testimony is corroborated by what she said and the distinctive change in her voice on the recording at the point when she said the head butt occurred. While she may have allowed for the possibility that she was injured when she slipped off the toilet in her testimony at the preliminary hearing, her evidence at trial was that she fell to the left rather than to the right and that she did not bump her head or face when she felt faint but did not lose consciousness.
[40] Count 5, unlawful confinement, was withdrawn at the request of the Crown.
[41] I note that the defence made a point about the delay in reporting, especially in the context of whether Ms. Leclaire was actually afraid of Mr. Couvieau or not. Mr. Cleaver accurately observed that Ms. Leclaire was an active participant in the verbal sparring with Mr. Couvieau in the recordings of their arguments. I think it is fair to say that she gave as good as she got in angry exchanges. Having said that, I don’t think this fact neutralizes or diminishes her evidence that she was concerned with what Mr. Couvieau would do if she reported him to the police. It is well established that delay in reporting in the context of domestic abuse, standing alone, is not a valid basis for discounting the complainant’s allegations.
[42] Finally, there will be findings of guilt on counts 6 and 7, the breach of probation charges. It is admitted that Mr. Couvieau was bound by a probation order to keep the peace and be of good behaviour when he committed the assaults referred to in counts 2 and 4.
[43] So to summarize, there will be findings of not guilty on counts 1 and 3, count 5 was withdrawn and there will be findings of guilty on the remaining counts.
Mr. Justice Martin James
DATE RELEASED: March 2, 2018
COURT FILE NO.: CR-16-1341
DATE: March 2, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JOSEPH COUVIEAU
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: March 2, 2018