R. v. Stairs, 2018 ONSC 3783

COURT FILE NO.: 117/17

DATE: 2018 06 18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Christina Lynch, for the Provincial Crown Respondent

Mark Miller, for the Federal Crown Respondent

• and -

MATTHEW STAIRS

William Caven, for the Accused

HEARD: May 14, 15 & 16, 2018

REASONS FOR JUDGMENT

COATS J.

Introduction

1Matthew Stairs was charged on a three count indictment for possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), assault, contrary to s. 266 of the Criminal Code of Canada (“Code”), and fail to comply while bound by a probation order, contrary to s. 733.1(1) of the Code.

2On March 19 -21, April 12, and April 27, 2018, I heard pre-trial applications where Mr. Stairs asserted that his rights pursuant to s. 8 and 9 of the Charter were violated. He sought the exclusion of the evidence. On May 10, 2018, I advised counsel and Mr. Stairs that his application was dismissed with written reasons to follow. Those reasons have been released separately today. On May 10, 2018, Mr. Stairs re-elected a trial by judge alone.

3After the release of my Charter ruling, Mr. Stairs pled not guilty on all three counts. On count one of the indictment, being possession for the purpose of trafficking, Mr. Stairs admitted the underlying facts and invited the court to convict him on this count. Mr. Stairs was found guilty.

4The trial proceeded on count two, the assault. Count three, being the breach of probation, will be discussed when the matter returns to Court on June 18, 2018, as will the sentencing on count one.

5Counsel agreed that the evidence of the three officers from the Charter voir dire could apply to the trial without the need to recall the officers as witnesses. I heard additional evidence from three witnesses – Santo Andrew Berlingieri, Ms. Marcela Manriquez, and John Stairs. The Crown called all three witnesses.

Overview of the Facts

6On June 1, 2017, Mr. Berlingieri was driving southbound on Ford Drive in Oakville and believed that he observed an assault being committed by a male driver against a female passenger in a car stopped and facing the opposite direction on the other side of the road. Mr. Berlingieri drove past the vehicle and continued southbound, and observed the vehicle make a u-turn and drive behind his truck in the same direction. He continued to observe what he believed to be an ongoing assault. Approximately 15 minutes later, Mr. Berlingieri called 911 to report the incident, and provided the make, model, and colour of the vehicle, and a licence plate of “BEWN 480 or 483”.

7For the reasons set out in my Charter ruling, I found that the police officers located the vehicle Mr. Berlingieri had observed at 2273 Devon Road, Oakville, Ontario. I also found that the officers legally entered the residence, and after entering the residence, a female named Marcela Manriquez came up from the basement. Matthew Stairs was initially arrested in the basement for assault and breach of the probation order.

Relevant Legal Principles

8Assault is defined in s. 265 and 266 of the Code as:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

266 Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

9The accused is presumed innocent. This presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts. The accused is not required to testify and I draw no inference from his decision not to do so in this case.

10Beyond a reasonable doubt has a well-known meaning. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is doubt based on reason and common sense. It is a doubt that flows from the evidence or absence of evidence. It is not enough for me to believe that the accused is probably or likely guilty. Proof beyond a reasonable doubt is not proof to an absolute certainty. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all of the evidence and be sure that the accused is guilty before I can be satisfied of his guilt beyond a reasonable doubt.

The Evidence

The Officers:

11As stated earlier, three officers (Police Constable Christopher Brown (“Brown”), Police Constable Jesse Vandervelde (“Vandervelde”) and Police Constable Joshua Martin (“Martin”)) testified at the pre-trial Charter application, and counsel have agreed that I can consider their evidence in the trial without having to recall them as witnesses.

12Briefly, the evidence from the officers is that after lawfully entering the residence, a female, who they later noted to be Ms. Manriquez, came up from the basement stairs and met with the officers. The officers observed that Ms. Manriquez had injuries to her face. After Mr. Stairs was located, based on the information available to the officers, including the information received from Mr. Berlingieri, the complainant, Mr. Stairs was arrested for assault.

Mr. Santo Andrew Berlingieri:

13I will first summarize Mr. Berlingieri’s evidence given in chief. On June 1, 2017, Mr. Berlingieri was driving a waste dump truck. His seating position was higher than a sedan and he had a clear vantage point from the driver’s seat. He made his observations relevant to this matter between 12:45 and 1:15 p.m.

14He was travelling south on Ford Drive in Oakville, Ontario, just south of the intersection of Ford Drive with Cornwall. He did not know how far he was from Lakeshore Drive, or how many lanes on Ford Drive go north or south, or the speed he was travelling. The traffic was moving, not stop and go.

15He was approaching a set of tracks so was slowing down. The tracks go across Ford Drive. He did not know how many tracks there were. He reduced his speed to go over the tracks. Mr. Berlingieri observed a car going north on Ford Drive, it stopped just before the tracks and a female was walking on the sidewalk. His truck and the car were going opposite directions, facing each other. The female was before the tracks, and she was walking towards him on the other side of the road.

16Mr. Berlingieri continued to watch the vehicle and the female entered the vehicle through the passenger side door. Mr. Berlingieri did not know if the car was a two door or a four door. Mr. Berlingieri testified that once the female got into the vehicle she immediately started getting hit by the driver. She was hit in the head area. Her head was pushed against the passenger side window. She was in the front passenger seat. She was being hit by the driver’s right arm.

17The car was stopped when the female got in. Then, the car started moving and it crossed the tracks at the same time Mr. Berlingieri did in the truck, with the car going north and Mr. Berlingieri going south.

18Mr. Berlingieri did not know how many times the female’s head was against the window but he testified it was more than once.

19Mr. Berlingieri continued to focus on the car as he kept driving. He viewed the car in the driver’s side mirror, which Mr. Berlingieri testified was clean. He described the mirror as big – he can see the whole lane beside him. He continued to watch the car as it drove away. Once the car had passed his truck, the car made a u-turn. Mr. Berlingieri observed this in the mirror. The car was now behind his truck. After the u-turn, Mr. Berlingieri described the car as coming fast behind him. He said the car was being driven erratically and was swerving. At first, the car was two lengths behind and then closed to one car length.

20Once the car was one car length, give or take, behind his truck, Mr. Berlingieri observed the female being hit/struck in the head area again by the driver’s right arm/hand. Mr. Berlingieri did not know for sure if every single strike was being landed on the female. It looked like she was being struck in the head area. He observed the female trying to protect herself. She was squirming. The female made a ducking motion with her head buried in her arms. He continued to watch. He did not know how many times this happened, but testified it was more than once.

21The driver then had the passenger in a headlock. The driver’s right arm was around the female’s neck. Mr. Berlingieri could not say how long this lasted. He testified that it looked like the female was kicking her feet trying to get out of the hold. When Mr. Berlingieri observed the female in the headlock the car, was directly behind his truck, give or take, a car length.

22Mr. Berlingieri approached a stop. The car was beside his truck in the left turn lane. Mr. Berlingieri tried to get the licence plate. The car turned left. Mr. Berlingieri testified that he got the letters on the plate for sure. He had two of the numbers, but he could not remember the order of the numbers. He had this in his head mentally. Mr. Berlingieri could not recall the licence plate in his oral testimony at trial, but refreshed his memory by looking at the transcribed statement of his call to 911. He testified that the plate was BEWN, a four and an eight, he could not remember the order, and the last number was a zero or three. He thought that he told 911 he could not remember the order, whether the four or eight came first, but he did not see this in the transcript.

23Mr. Berlingieri said he started to get the licence plate when the car was behind him, the plate was backwards in the mirror. Once the car was beside him he was able to get the letters and part of the numbers. He described the car as a Toyota, charcoal gray in colour. He said when the car made the left turn he noticed that it was a Corolla sedan. He did not know if it was a two or four door. He described the male as white with a buzzed haircut. He said this meant very short shaved hair. He said the female was white and he did not remember much else about her appearance. He did not remember her hair colour. He believed she was wearing a white shirt. He said both the male and female looked they were in their mid-twenties to mid-thirties in age.

24Mr. Berlingieri did not know then or now the name of the street the car turned left on. The 911 dispatcher gave him a name, and the name sounded familiar.

25Mr. Berlingieri described that the car pulled up beside his truck, made a quick stop, and turned. He could not tell if there was physical contact then between the male and female when the car was stopped beside his truck getting ready to turn left.

26Mr. Berlingieri did not call the police right away. He said he was pretty taken aback, shocked. His destination was two minutes from where he was, and he proceeded to his destination. He testified he called his girlfriend and asked what he should do. He said he knew what he saw was not right. He needed to tell someone. He also spoke to his boss to tell his boss he was going to call the police. Then he called 911. He said the time between when he saw the car turn left and when he called the police was 10 – 15 minutes. Mr. Berlingieri testified that he had no doubt about what he saw.

27Mr. Berlingieri could not provide the distance or the time over which he saw the vehicle. He knew the street from where it started to where it ended. It started after he had crossed Cornwall and was approaching the train tracks.

28Mr. Berlingieri said the visibility was clear. It was not raining. Mr. Berlingieri testified that he cleans the mirrors everyday on the truck. It is part of an inspection.

29Mr. Berlingieri wears glasses. He got them in December of 2017. He did not have glasses on June 1, 2017. He did not need them at the time.

30Mr. Berlingieri was cross-examined. I will summarize his answers given in cross-examination.

31Mr. Berlingieri confirmed that he had to look at the transcript of his call to 911 to remember the licence plate. He confirmed his memory was not as fresh during the trial as it was when he made the 911 call, or when he gave his statement to the police.

32Mr. Berlingieri confirmed that he has no criminal record, had never been in trouble with the law, and knows right from wrong. He agreed people can get hurt when others break the law and that if someone broke the law he would call the authorities. He would not want someone to get hurt. He would call 911. When asked if he would call 911 without hesitation, he said it depends on the circumstances – he could be taken aback by what he sees. When asked if he would hesitate he said not so much hesitate but would process and collect his thoughts. This would not be so much to consider if calling 911 was the right thing to do, but to make sure what he saw was what he saw. Mr. Berlingieri confirmed that what he saw on June 1, 2017 was a crime.

33Mr. Berlingieri confirmed he was driving a big work truck. The cab looks similar to a semi-tractor trailer – it is the same size. There is a flatbed behind and on that day it held a large metal box, like a dumpster. The box blocked his view out the rear windshield. The truck is nine feet wide and the dumpster seven feet wide. Mr. Berlingieri agreed the truck takes more skill and care to drive and that he must pay close attention to the road and surroundings – more than when driving a small sedan. On June 1, 2017 the box on the truck was empty. Mr. Berlingieri confirmed that on June 1, 2017, he was paying attention to the road and surroundings, including other cars and that the act of driving took up a lot of his attention.

34Mr. Berlingieri said he was 100 meters away when he first saw the car and that the gap was closing as he approached the tracks. The 100 meters was a guess. He was not sure. Both he and the car were slowing for the tracks. He said he could not say for sure if the gap was closing quickly. He was referred to his evidence in cross-examination at the preliminary inquiry and agreed that he had said yes at the inquiry when asked if he and the Corolla passed each other quickly. Mr. Berlingieri agreed it was a matter of seconds from when he first saw the Corolla and they passed.

35Mr. Berlingieri agreed he saw the female outside the car for a split second out of the corner of his eye. He did not see her speak to the driver before she got in the car. He did not see an argument or hear shouting.

36Mr. Berlingieri said he could not fully see the female in the car, but could see her being struck when the car was behind his truck. The only feature he had for the female was that she was white.

37Before the car did a u-turn and before Mr. Berlingieri passed the car, he did not have a description of the driver or the licence plate.

38Mr. Berlingieri confirmed that he saw the female get struck as soon as she got in the car. He was not sure if it was hitting or pushing, and he was not sure it was with an open or closed fist. He knew it was more than once but not sure how many times. He agreed he was not paying 100 per cent attention to the car, as he was driving the truck and most of his attention was on driving. This continued when the car was behind him. His attention was split. Mr. Berlingieri did not know how long the car was behind him until the car turned left, but it was behind him the whole time.

39Mr. Berlingieri said he was focussed on driving straight, occasionally looking left in the mirror, then straight again, back and forth. He could not recall how many times he looked in the side mirror. He could not agree to the suggestion it was less than five times. It was suggested to him that each time he looked it was for less than a few seconds, and Mr. Berlingieri agreed that he could not say either way. Mr. Berlingieri agreed he was only able to see a portion of the car, never the entire front end. He could see the driver’s side and a little bit of the passenger’s side. He did not look at the licence plate until the end as the car got closer to where the car made the left turn. Mr. Berlingieri could not recall how many times the car swerved. He could see the driver portion of the car when the car was behind him, not just when the car swerved.

40Mr. Berlingieri could not tell if the people were yelling at one another when the car was behind him. He could not make out facial expressions. He could not tell if the male or female in the car were angry, smiling, or laughing.

41Mr. Berlingieri was worried that the car might collide with his truck. Part of his focus was on avoiding a collision. When he was looking in the mirror, he was focussing not just on what was occurring in the passenger seat, but on the manner the car was being driven in.

42Mr. Berlingieri confirmed that when the car was behind him he believed the male struck the female. He did not know how many strikes or how many landed. He could not see the female’s face or facial expression when she was in a headlock, and did not know how long it lasted.

43Mr. Berlingieri confirmed he had a cell phone with him and that he did not pull over right away and call 911.

44Mr. Berlingieri last saw the car at a stop sign. He did not know the name of the street the car turned on. The car was beside him for a half a second. The car pulled up so quickly he did not have a chance to look inside. He was trying to get the licence plate. When the car was beside him he could not see the front or back licence plate. He could see the licence plate on the car when the car was behind him but the letters were reversed. When the car turned left he could see the rear plate and confirmed the letters. The car had started to make the turn and was in motion. Mr. Berlingieri did not write down the licence plate. He could not estimate how long he saw the licence plate for but agreed it was for a short amount of time and that the car was driving quickly, drove away quickly, and that he lost sight of the car quickly. When asked if it was for a second or two that he observed the licence plate, Mr. Berlingieri said this was fair.

45Mr. Berlingieri confirmed that he did not know the name of the street the car turned left on. He believed it was the street before Lakeshore Drive. He was guessing. Mr. Berlingieri did not recall if the car windows were down. Mr. Berlingieri confirmed he did not hear shouting, crying or sounds when the car was next to the truck. At the stop sign was the only time he observed the car when his truck was stationary. The rest of the time his truck was in motion. Mr. Berlingieri did not observe assaultive behaviour inside the car when the car was at the stop sign.

46When asked if he was not sure if the male had a shaved head or buzz cut, Mr. Berlingieri said he refers to them as the same. The male had a very short haircut. Mr. Berlingieri agreed the age range of the male was an estimate. The male was not a teenager, but he could be older or younger than mid-twenties to mid-thirties. Mr. Berlingieri did not have any other descriptors of the male. Mr. Berlingieri was moving. The car was moving. He could not identify the male if he saw him again.

47Mr. Berlingieri believed the female was white but he was not sure. She was a similar age to the male but she could be older or younger. He believed she had a white shirt on but could not be sure. He had no other descriptors of the female and he could not identify her.

48Mr. Berlingieri knew no other details of the car. He didn’t know if it was a two or four door or if it had distinctive damage or it was dirty or clean.

49Mr. Berlingieri confirmed that he gave the 911 dispatch the licence plate information from memory. He had not written it down. He had to look at the 911 transcript to refresh his memory of the plate details on the day he testified. He said the first two numbers were an eight or four, he was not sure of the order. The last number was a zero or three.

50Mr. Berlingieri did not pull over and call 911 right away. He reached his destination in about two minutes. He called his girlfriend and spoke to her for five minutes. He said he was not sure what to do. He said he did not call the police because she said he should. He said he explained to his girlfriend what he saw and they talked about it. At the time, he called his girlfriend he knew he should call the police. He was confirming this. When asked if he had to confirm because he was not certain, he said he wanted to be sure he was not overreacting. Everything had happened quickly. He was processing. He was trying to be sure what he saw. He said he was sure what he saw. When asked if this was because he had a doubt about whether what he witnessed was an assault or not, Mr. Berlingieri said not a doubt so much. He was processing what he had seen. He was running it through his head as it had happened so fast. He wanted to confirm.

51He called his boss to tell him he was calling 911. He did not want his boss to wonder why he was sitting there doing nothing. When asked if he had a conversation with his boss about what he should do, Mr. Berlingieri said not so much about what he should do, but that he explained what happened and what he saw. He agreed that he could not observe if the female in the car was laughing, crying or smiling. When asked if that gave him a doubt about what he saw, he said not so much a doubt as she was being struck/hit. He acknowledged he had a concern she might be in danger, yet did not call 911 right away.

52Mr. Berlingieri was referred to the 911 call transcript and agreed he had told 911 he had made the observations 15 minutes ago, and agreed his memory was fresher then. It was probably 15 minutes before he called 911.

53When Mr. Berlingieri was asked if he knew what he saw was an assault he would have called 911 right away, Mr. Berlingieri said what he saw was an assault. He knew what he saw. He did not call his girlfriend or boss because he was confused about what he had seen. He was sure about what he had seen.

54Mr. Berlingieri was asked about his glasses. He said he had a very slight prescription for glasses. He had an eye checkup and got glasses in December 2017. He had never had an eye checkup before.

55In re-examination, Mr. Berlingieri confirmed that he was not unsure what he had seen. It happened so quickly. He wanted to make sure what he had seen made sense. He was flustered. He was feeling uneasy and nervous. He was sure what he had seen. He wanted to put it all together.

Ms. Marcela Manriquez:

56I will first summarize the evidence-in-chief of Ms. Marcela Manriquez.

57Ms. Manriquez is 32 years old. She acknowledged that she is currently dealing with a drug addiction and is taking methadone for treatment. She had been taking methadone for six years and gets it daily in Hamilton from a pharmacy. She takes the methadone in front of the pharmacist and gets a receipt.

58On June 1, 2017, Ms. Manriquez had a cellphone. She could not recall what she was wearing.

59Ms. Manriquez met Matthew Stairs when she was around 16 years of age. They were friends. She did not see him for eight years and as of June 1, 2017 they had been back in contact for eight months and were boyfriend and girlfriend. She was at Matthew Stairs’ residence often. She would stay overnight from time to time. She saw Matthew Stairs a lot – almost every day. Her permanent residence was at her mother’s in Hamilton.

60On May 31, 2017, she spent the overnight to June 1, 2017 with Matthew Stairs in the basement of the Devon Road residence. She could not remember if Matthew Stairs worked on the morning of June 1, 2017.

61When asked if she had any injuries on June 1, 2017, Ms. Manriquez said she had dried blood on her nose from doing too many lines of cocaine, and she probably had a bruise or something very old and faint on her arm, but she was not sure.

62Ms. Manriquez testified that on June 1, 2017, she got up and took Matthew’s car and went to get her methadone. She said 90 per cent of the time he drove her. She did not have a proper driver’s licence or her own car. She was not sure when she got to the pharmacy but thought it was maybe 10:00 a.m. It took her 40 minutes to drive there and 40 minutes back.

63She said she stopped at a gas station near the highway in Hamilton. There was a Tim Horton’s beside it. She grabbed a coffee. She though that Matthew Stairs had asked her before she left to get him breakfast at Tim Horton’s so she bought him something. She thinks it was sandwich. She bought it at the same Tim Horton’s in Hamilton. It cost under $10.

64She drove straight to Matthew Stairs’ house. She was not sure of the time. Mr. Stairs was in the basement. He had ordered a pizza. He asked her why she got the Tim Horton’s. He said he had told her not to get Tim Horton’s. He said get the money back. She had a problem with her hearing. She walked to the Tim Horton’s to return the sandwich and get the money back. She thought he had said for her to get him Tim Horton’s, and he said that he had told her do not get Tim Horton’s.

65When asked if they had a discussion about the car, Ms. Manriquez said she had taken a long time. Matthew Stairs’ dad was there. Matthew Stairs told her to go get the money back. It was a nice day so she walked. Matthew Stairs had asked her why she took so long. He said his dad was there and he did not want his dad knowing that she drove without a license. She told Matthew Stairs that there had been traffic. He asked why she had Tim Horton’s. She told him she thought he had told her to get it. He told her that he had told her not to get Tim Horton’s and to get the money back.

66Ms. Manriquez walked to another Tim Horton’s. Ms. Manriquez said she was upset with herself because she does this a lot – she never hears him properly and she always messes things up. She felt a little guilty. She wanted to go to Tim Horton’s. She wanted to prove to him she could get the money back. She took the sandwich with her. She walked to the Tim Horton’s at a plaza straight down Ford Drive. It took her ten minutes or so.

67She cannot remember what she said at Tim Horton’s. She may have said she got the order wrong so please take it back. She tried to seem upset so they would give her the money back. She got the money back. Ms. Manriquez said she could not remember if she initially bought the sandwich at the Tim Horton’s in Hamilton or the one she walked to in Oakville.

68She was walking back along Ford Drive when Matthew Stairs came. He was driving the Corolla. He said get in. She had not taken the Corolla to Tim Horton’s because of the whole thing about her being late and she did not want to take it again.

69Matthew Stairs stopped the car. He was looking for her. She had taken so long. He was worried, she guessed.

70Ms. Manriquez said she did not remember if he said get in. He asked her why she did not take the car and why she had taken so long. She told him that she wanted to walk and that she did not think that he wanted her to take the car.

71She got in the car when it was right in front of her. It was somewhere along Ford Drive. She did not remember if she had walked over the tracks. She did not talk to him until she got in. She is guessing that he stopped the car and she got in. She got in the car somewhere along her route.

72She testified that Matthew Stairs looked a little worried when he asked her why she did not take the car. She was upset because she messed up a lot, and hated to disappoint him.

73Ms. Manriquez said money was not tight. There was no shortage of money.

74When asked if Matthew Stairs had said anything else to her, Ms. Manriquez asked to read the transcript of her statement to the police of September 2, 2017. She then said Mr. Stairs was upset about having to look for her, and that she had taken so long and should have taken the car. He told her she needed to get off methadone as he had to keep driving her to get it. It was affecting her teeth. She said it was kind of like an argument. Then he started making jokes and play fighting. They were both in a better mood then. They started talking about methadone. Matthew Stairs hates her being on methadone. He cannot stand it. He says he is doing his time driving her there. She said this means it was very annoying, very hard. He had to drive her every day. He sleeps for two hours and then she wakes him up to drive her to Hamilton.

75They got back to Matthew Stair’s residence. They ate pizza. They lay on the couch. Matthew fell asleep.

76When asked why Mr. Stairs was afraid about her teeth, Ms. Manriquez said he was really scared that all of her teeth would fall out. Methadone makes a person crave sugar. Matthew Stairs had a friend on methadone who lost all his teeth, so Matthew Stairs was concerned.

77Matthew Stairs was upset that she had not taken the car to return the sandwich and he had had to look for her. He was upset about the methadone and her teeth. He was upset that she kept messing up. He said “look at what methadone is doing to you”. With methadone, she cannot do a lot of things and it make her slower. It makes her upset when they talk about it. She hates it. He was trying to cheer her up. He started making jokes and play fighting. As an inside joke, Matthew Stairs refers to people who take methadone as ‘methadonians’. He says they have their own land. She thought this was funny, but insulting, so they started play fighting.

78She said it was not exactly play fighting. He insulted her and she punched him. She tickled him. They were wrestling a little bit because he was driving. She said she punched him on his stomach, playfully on his side because he was driving. He tried to get her in a headlock but he could not because he was driving. She tickled him. He tried to stop her. He did not get her in a headlock because she ducked. He cannot stand being tickled. She tried to tickle him. They were both in a better mood then.

79When asked if she hit/contacted the window, Ms. Manriquez said she could not remember that and asked what was meant by contact. She said maybe, he was tickling her. She said he is hyper when they play fight.

80When asked about Mr. Stair’s driving, Ms. Manriquez said they were around the corner from the house so she was not concerned about crashing. She was not watching the driving. She said maybe he swerved a little bit. This is what she imagined when they were play fighting. She cannot remember too much swerving. She did not pay attention to the speed the car was travelling at.

81She said Matthew Stairs does not like to leave them in a bad mood. He was trying to get them in a better mood. When asked if before the play fight, they were both in a bad mood, Ms. Manriquez said pretty much.

82Ms. Manriquez did not remember for sure if Mr. Stairs turned the car around or changed direction. She could not remember how long they were in the car or if she left any items in the car.

83Ms. Manriquez said they always play fight and that they play fight everywhere.

84When they went back to the house and lay on the couch, Matthew fell asleep and she was about to when she heard someone come in and yell. She cannot remember what was yelled. She thought it was one of Matthew Stairs’ friends. She went upstairs. She thinks she realized it was the police. She asked what was going on. The police said something about an assault, someone had called about an assault taking place. She told the police she was okay and asked what assault. The police pressed her and told her she was lying. They went downstairs to get Matthew Stairs. Matthew Stairs went into the laundry room. They both realized it was the police. Matthew Stairs did not say why he went into the laundry room. She said there were a lot of officers there. She said she would be guessing at the number of police with her when they went downstairs to get Matthew Stairs.

85She said the officers looked for injuries on her and did not see any. One officer said there was a little piece of blood on her nose. She said it was from doing lines. She was asked about something on her arm. She told the police it was from something else a long time ago. She said if there were marks she was pretty sure that the officers would have taken pictures. She was then asked if an officer had asked at the station if he/she could take pictures and she answered this is a good question, there was nothing to take pictures of and she was pretty sure she was not asked. Ms. Manriquez said she suffered no injuries in the play fighting.

86Ms. Manriquez testified that she is now broken up with Matthew Stairs. She needs to be alone and focus on her schooling and trying to get off drugs. She has visited Mr. Stairs in jail and could not remember when she last visited him.

87In cross-examination, she said Mr. Stairs would not have been upset when he picked her up. He would have been upset earlier. She was gone. He was worried. He had been a little bit frustrated. He was not angry when he asked her why she had not taken the car and had walked. She said he gets upset every time they talk about methadone as it frustrates him. She said it impacts everything, her relationship and health and that they always talk about it. He was upset about the effect on her teeth.

88She agreed that when she got in the car they were kind of arguing. She said there was no shouting. She said she never shouts and he was not shouting. He started to joke with her about methadonians. He uses this joke all the time. She was not angry about this. She had heard it before and knew he was trying to make her feel better. She was not insulted. She knew he wanted to cheer her up. She punched and tickled him on the side of the stomach. She touched him first in the car. This was the first physical contact in the car.

89She said in cross-examination that she started the play fighting. They play fight all the time. She said it always starts the same way. He tells a joke and tickles her. She said his trying to put her in a headlock was part of the play fighting. She said she was not shocked or surprised or afraid. She did not tell him to stop. It was part of the play fighting. She went along with it. She said she was okay participating in the play fighting and agreed to participate in it. She did not say this out loud. It was understood. She said she was not forced to participate. She did on her own free will.

90Ms. Manriquez said in cross that Matthew Stairs had never hit her and did not that day. He did not punch, bite, scratch, threaten, or kick her. She said if he did she would remember and would call the police. It would stick out in her memory because it be shocking to her.

91Ms. Manriquez said she has problems remembering small details but would remember if he had hit her. She was sure he did not hit, bite, scratch, kick, or threaten her. She said she would have called the police and did before about an incident not involving Mr. Stairs. She said she had a cell phone that day that was charged. She could have called the police. She did not. She did not want to and she was not prevented from calling the police.

92She said no one paid her to give her testimony. No one threatened her. No one offered her anything in exchange for her testimony.

93Ms. Manriquez confirmed that once they returned to Matthew Stairs’ home, she was almost asleep. She did not hear someone knock on the door or ring the doorbell. She met the police upstairs. She told the police she was confused because there was no assault. She said she told them a million times. The police told her she was lying. She felt pressure. She said she was telling the truth to the police on June 1, 2017 that there was no assault and that she was telling the truth today. She said Mr. Stairs did not assault her on June 1, 2017.

Mr. John Stairs:

94Mr. John Stairs, Matthew Stairs’ father, gave evidence. His evidence was not really related specifically to the allegation of assault, and so I will only address a few matters from his testimony. John Stairs lived at 2273 Devon Road, Oakville, with his wife and his son Matthew Stairs.

95John Stairs testified that his son Matthew drove daily a dark gray, four door, Corolla, with licence plate BEWN 840. Matthew Stairs had unlimited use of the vehicle and the windows were not tinted or treated.

96John Stairs testified that Marcela Manriquez was Matthew Stairs’ girlfriend, and had been so for approximately six months. Ms. Manriquez spent time at the home on Devon Road, but lived in Hamilton. When she stayed over, she stayed with Matthew in the basement where Matthew spent most of his time. Ms. Manriquez did not have a car of her own.

97John Stairs testified that the intersection of Cornwall Road and Ford Drive is approximately half a kilometre from the intersection of Devon Road and Ford Drive. He said there is a Tim Horton’s located another block north of the intersection of Ford Drive and Cornwall, and that it would take 10-15 minutes to walk there from their home on Devon Road and three or four minutes to drive there.

98In cross-examination, John Stairs was not sure that Ms. Manriquez did not have a vehicle, but doubted she had a vehicle or access to one. He confirmed that he owned the Corolla, but that it was Matthew’s to use. Matthew used it freely. He was the primary driver. John Stairs was aware that Ms. Manriquez would drive the Corolla from time to time, and that this did not have to be cleared with him.

99John Stairs confirmed that between Cornwall and Devon, Ford Drive is one lane each way.

100On June 1, 2017, John Stairs could not recall if he left the house before Matthew. He could not recall if Ms. Manriquez stayed at the Devon Road residence on May 31, 2017. He could not recall the last night prior to June 1, 2017 that Ms. Manriquez had stayed at the residence, but thought it was within the proceeding five to six days.

101Similarly, he could not recall when he had last seen Ms. Manriquez prior to June 1, 2017, but estimated it would have been within the preceding five to six days.

The Crown’s Position

102The Crown’s position was that Mr. Berlingieri’s evidence was both credible and reliable and that Ms. Manriquez’s evidence was neither credible nor reliable. Based on Mr. Berlingieri’s evidence and the officer’s evidence, the Crown invites the Court to convict Mr. Stairs of assault.

The Defence’s Position

103The defence’s position was that both Mr. Berlingieri’s evidence and Ms. Manriquez’s evidence were credible, but that Mr. Berlingieri’s evidence was not reliable in regard to the assault and Ms. Manriquez’s evidence was consistent and reliable in regard to her denial that she had been assaulted. The defence position is that Ms. Manriquez failure to recall details of the events of June 1, 2017 was understandable given that it was just another day for her until the police entered the residence. Based on Ms. Manriquez’s evidence, who denied that an assault occurred, and the unreliability of Mr. Berlingieri’s evidence, the defence argues that Mr. Stairs should be found not guilty of assault.

Analysis and Findings

104In order to assess the issues before me, I must consider the credibility and reliability of the witnesses.

105As set out in my Charter ruling, I found all three police officers to have given credible evidence. Neither Crown nor defence raised any concerns with the evidence of Mr. John Stairs as to his credibility or reliability.

106I find that Mr. Berlingieri was both a credible and reliable witness. The defence conceded his evidence was credible. The defence questioned the reliability of his evidence because he made his observations while driving his work truck, from a moving vehicle, and when his attention was required to keep his truck on the road. The defence’s position is that Mr. Berlingieri had limits on his own ability to observe based on his vantage point (in a truck), his focus (driving his own truck) and by his physical limitations. The defence argued that without bias or malice, Mr. Berlingieri drew a conclusion that he had witnessed an assault, and made an incorrect conclusion and an understandable mistake.

107I do not accept the defence position that Mr. Berlingieri’s evidence was not reliable for several reasons. It is accepted that Mr. Berlingieri was driving a large truck that was moving and required his attention and care to drive. He made many of his observations using his side view mirror. Mr. Berlingieri acknowledges this. In my view, this does not detract from the reliability of his evidence. He testified that his vantage point was clear. He was higher up than the sedan. When Mr. Berlingieri observed the female get in the vehicle, the vehicle was stopped. The vehicle was then right behind Mr. Berlingieri’s truck. He testified he could observe the vehicle through a mirror that he was required to clean daily. He made a reliable note of the licence plate marker, only transposing two numbers, and being uncertain whether the last number was a 0 or a 3. His observations were reliable as he was able to observe the make, model and colour of the vehicle. He was able to provide a description of the male – male, white, buzz cut, aged 25-35 years old. He also observed that the female, who he believed was white, in the same age range, and believed she was wearing a white shirt. He described the vehicle behind him as swerving. Ms. Manriquez, the passenger in the vehicle, confirmed it did swerve. When Mr. Berlingieri first observed the female get in the vehicle and immediately be hit by the driver, his truck was slowed down to get over the tracks. He had decreased his speed. I also accept Mr. Berlingieri’s evidence that the visibility was clear. It was not raining. This was uncontroverted. His evidence was reliable

108I make no adverse finding on reliability based on Mr. Berlingieri waiting 15 minutes to call 911. He testified that after observing the assault, he spoke to his girlfriend on the phone. As he explained, this was not because he was unsure of what he saw, but because he wanted to process what he had seen. It was reasonable for him to call his boss and explain that he was going to be delayed to call the police. Mr. Berlingieri also stated in cross-examination that he did not call the police because his girlfriend said he should. They discussed what he had seen and talked about it. At the time he called her, he knew he should call the police. He was confirming to be sure he was not overreacting. I accept his evidence in this regard.

109The defence relied on Mr. Berlingieri’s statement in his cross-examination that he could not see the face of the female in the vehicle to argue that he could not therefore be certain about whether what occurred in the vehicle was an assault. I do not accept the defence position. Taking Mr. Berlingieri’s evidence as a whole, his reference to making sure he saw what he saw was in the context of processing what he had seen, not his not being sure that he had witnessed an assault. I am satisfied that he knew what he saw was an assault, and that he needed time to put it together. Mr. Berlingieri testified that he believed what he saw was an assault. I am not of the view that Mr. Berlingieri admitted he was not sure that what he had seen was an assault.

110Mr. Berlingieri testified that he could see in the driver’s side of the vehicle and only a part of the passenger side when the vehicle was behind him. In my view, this did not limit the reliability of his evidence. As set out above, he was able to provide a lot of detail about what he was able to observe. His evidence was reliable.

111Mr. Berlingieri could not say how many times he observed the male strike the female, or if the male was hitting or pushing or striking with an open or closed hand. He could not see the expression on the male’s or female’s face. Mr. Berlingieri readily admitted this. This does not detract from the details he was able to give. I found the amount of detail sufficient to be reliable.

112I make no finding of unreliability based on Mr. Berlingieri recently having gotten prescription glasses in December of 2017. He was able to see a licence plate on a vehicle and got it right except for two transposed numbers and a question about the last number. I have no concerns about his vision. He said his prescription was a mild one.

113Mr. Berlingieri did not independently recall the licence plate when giving his evidence. I draw no inference from this. Almost a year had passed since he made his observations.

114I find that Ms. Manriquez’s evidence was neither credible nor reliable. In terms of her credibility, my concerns include the following:

1. She testified that she had no injuries when she came upstairs from the basement other than a bit of blood on her nostril from doing lines of cocaine, and an old bruise on her arm. She said she suffered no injuries from what she described as the “play fight” between her and Matthew Stairs in the vehicle. This is inconsistent with the testimony of the three officer who I found to be credible witnesses. They all observed marks on her face. PC Martin was with her for a while in the kitchen. He made detailed notes of her injuries to her face. Ms. Manriquez did not address these injuries.

2. Ms. Manriquez’s evidence is inconsistent with a key component of Mr. Berlingieri’s evidence. Mr. Berlingieri testified that as soon as the female got in the vehicle, she was assaulted. He said once the female got in, the driver immediately started to hit her. Ms. Manriquez testified that she entered the vehicle and she and Mr. Stairs were talking and then he teased her and she hit him playfully and then they were play fighting. Her evidence is inconsistent with Mr. Berlingieri’s credible and reliable evidence that the assault began immediately.

3. Ms. Manriquez was hesitant to admit that Mr. Stairs was driving the vehicle in a swerving manner. She downplayed this. This is entirely inconsistent with Mr. Berlingieri’s credible and reliable evidence that the car driven by Mr. Stairs was swerving so much that he was afraid at one point that the vehicle was going to hit him. He described the vehicle as being driven erratically.

4. Ms. Manriquez testified she could not remember her head hitting the window. She said maybe it happened when he was tickling her. Mr. Berlingieri’s evidence was clear that he saw this happen more than once.

5. Mr. Berlingieri described the female kicking to get out of the headlock. Ms. Manriquez did not address this in her testimony.

6. Ms. Manriquez said she could not remember many details of June 1, 2017 and yet she said she remembered that she had her cell phone with her, that it was fully charged and that she could have used it to call the police if she needed to. This simply is not credible that she would remember this and no other details such as whether Mr. Stairs had worked that day.

115Ms. Manriquez has consistently denied being assaulted. She denied this to the officers on June 1, 2017, the date of the incident. She denied this in her statement to the police. She denied this at the trial. I do not accept her evidence in this regard, as I do not find her to be a credible witness for the reasons set out above, and this reflects the credibility of her description of what transpired in the vehicle. I do not accept that her evidence that she gave implied consent to the physical contact in the vehicle, by virtue of it being play fighting, to be credible. I accept the Crown’s submission that there was a clear power imbalance in the relationship between Ms. Manriquez and Mr. Stairs. She had brought a sandwich for Mr. Stairs that costs under $10.00. She had misunderstood what he had told her. Mr. Stairs insisted she take it back and get her money back even though she said money was not tight. She did what he asked even though she could not remember if she returned it to the Tim Horton’s where she had bought it. She was so determined to do what he asked that she pretended to be upset at the Tim Horton’s. She said she did not like to disappoint Mr. Stairs. He did not respect her methadone treatment. He referred to taking her to get her methadone as “doing his time”.

116I do acknowledge that Ms. Manriquez was forthright about her drug addiction. This is to her credit. However, for the reasons set out above, I do not find her evidence on the events inside the vehicle to be credible.

117I also find that Ms. Manriquez’s evidence was not reliable. She could not recall details. She was unsure where she had purchased the sandwich for Mr. Stairs, either in Hamilton or Oakville. She could not remember if Mr. Stairs had worked that day. She admitted that because of her drug use and use of methadone, she was always “messing things up.” She could not hear Mr. Stairs properly. Mr. Stairs told her it makes her “slower”. She could not remember leaving items in the car. She could not remember when she last visited Mr. Stairs in jail.

118Having reached the conclusions I have with respect to credibility and reliability, I accept the evidence of Mr. Berlingieri that he had witnessed an assault and reject the evidence of Ms. Manriquez that what Mr. Berlingieri witnessed was simply play fighting.

119Specifically, I accept Mr. Berlingieri’s evidence that he witnessed the following:

1. Mr. Berlingieri observed the male in the vehicle hit Ms. Manriquez. Ms. Manriquez acknowledged she got in the vehicle driven by Mr. Stairs, who was the only other male occupant inside the vehicle.

2. Mr. Berlingieri observed the female be hit in the head area by the driver’s right arm, and her head was being pushed against the passenger side window. Her head was against the window more than once.

3. When the car was approximately one car length behind his truck, Mr. Berlingieri observed the female being hit/struck in the head area again by the driver’s right arm/hand.

4. He saw the female in a headlock.

120Mr. Berlingieri had no doubt about what he saw. I accept his evidence that Mr. Stairs assaulted Ms. Manriquez. Matthew Stairs intentionally applied force to Ms. Manriquez without her consent.

Conclusion

121Based on the above analysis, I find Mr. Stairs guilty of assault.

Coats J.