Court File and Parties

COURT FILE NO.: CR-17-30000618-0000 DATE: 2018-07-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – B.L.P. Accused

Counsel: Eadit Rokach, for Her Majesty the Queen Stephen Stafford, for the Accused

HEARD: June 25-29, July 20, 2018

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.5(1) of the Criminal Code of Canada.

Ruling on Gardiner Hearing

DUNNET J. (Orally)

Overview

[1] B.L.P. has pled guilty to an aggravated assault on A.W. which occurred on June 27, 2016. In the course of sentencing, a hearing was held pursuant to R. v. Gardiner, [1982] 2 S.C.R. 368 in order to assess the testimony given by A.W. and B.L.P. as to the gravity of the offence. The Crown must prove the aggravating facts beyond a reasonable doubt.

Agreed Facts

[2] The parties have agreed on the following facts:

1. B.L.P. and A.W. were in a domestic relationship between 2006 and 2010. They separated, but remained “on and off” from 2010 to 2016.
2. The relationship between B.L.P. and A.W. was toxic and volatile. The police were contacted several times throughout the course of their relationship because of domestic disputes. A.W. had previously reported that she was assaulted by B.L.P.
3. The parties have a son together. On occasion, B.L.P. was permitted to be at A.W.’s apartment to spend time with their son. In the weeks before this offence, A.W. sometimes allowed B.L.P. to sleep in the second bedroom of her apartment.
4. On June 26, 2016, A.W. was living at 3941 Lawrence Avenue East, apartment 111, with her son. B.L.P. went to A.W.’s apartment and confronted her about romantic relationships that she was rumoured to be having. When the discussion intensified, A.W. repeatedly asked B.L.P. to leave, but he refused to do so. A.W. went to her bedroom and slept with her son.
5. On the morning of June 27, 2016, A.W. observed that B.L.P. was still in the apartment. She left and walked her son to school.
6. At approximately 9:50 a.m. she returned to the apartment. B.L.P. demanded that A.W. tell him whether the rumours about her romantic relationships were true and they began to argue. B.L.P. rolled a marihuana cigarette and asked A.W. if she wanted to smoke it with him.
7. A.W. did not want to interact with B.L.P. She entered the kitchen and started washing dishes. B.L.P. stood close to A.W., which made her feel uncomfortable. She left the kitchen and went to the bathroom.
8. B.L.P. followed A.W. to the bathroom and continued to question her about other men in her life as he was pacing back and forth in the bathroom doorway. She refused to speak to him. Instead, she put on her iPhone headphones to listen to music. She returned to the kitchen to perform household chores.
9. B.L.P. followed her into the kitchen and asked her again about the rumours. He grabbed her by the forearms and dragged and pushed her into various parts of the apartment. During the struggle, her headphones were yanked out of her ears and the iPhone fell out of her hand.
10. B.L.P. assaulted A.W. in various parts of the apartment, including punching her in the head and choking and gagging her by putting his hand down her throat.
11. A.W. was briefly rendered unconscious several times during the assault in the second bedroom. When she regained consciousness, B.L.P. was no longer in the bedroom.
12. He later returned to the bedroom, at which time she told him that she needed to go to the hospital. He agreed and left the apartment to retrieve his vehicle, which was parked on another street.
13. While B.L.P. was out of the apartment, A.W. retrieved her iPhone from the hallway where it had fallen during the initial struggle. She took a photograph of her facial injuries and sent it to two friends accompanied by the word “help.”
14. B.L.P. returned to the apartment and they walked down the stairwell to his vehicle. On the way to the hospital, B.L.P. urged A.W. to tell the police that two other individuals had arranged to have her assaulted.
15. At the hospital, A.W. disclosed the source of her injuries to a nurse. The police arrived and A.W. asked them to go to her son’s school to ensure his safety.
16. At 3:23 p.m. B.L.P. was arrested at his son’s school. He has been in custody since his arrest.
17. On June 28, 2016, the police executed a search warrant at A.W.’s apartment and observed numerous blood stains in the main entrance, kitchen, hallway, bathroom and both bedrooms. The blood stains were found on everything from the door frames and walls to the carpet and mattress.
18. The police applied Leucocrystal Violet, a chemical spray used to identify bloodstains that are not visible to the naked eye. The chemical spray revealed extensive blood smears in the living room, second bedroom, bathroom and kitchen. Bloody footprints were found throughout the apartment.
19. As a result of the assault, A.W. sustained the following injuries: (a) both eyes were swollen shut as a result of her pupils being ruptured; (b) blood was coming out of her eyes because of ruptured blood vessels; (c) damage to her orbital floor and left eye socket requiring cranial facial surgery and the insertion of five titanium plates; (d) laceration under her right eye; (e) nine puncture wounds to her head; (f) extensive bleeding from the back of her head and neck, which required 17 staples; (g) a large bump in the centre of her forehead; (h) scratches to the left side of her face and forehead; (i) fractures to her nose in three places; (j) fractures to her skull and cheekbone; (k) injury to her temporal muscle, resulting in a temporary loss of balance; (l) bruising around her mouth, neck and back; (m) a fractured middle finger on her right hand; (n) a cut to the thumb on her right hand; and (o) a five-inch horizontal scratch on her abdomen.
20. As a result of her injuries, A.W. continues to suffer from: (a) persistent pain around the titanium plates in her head; (b) limited mobility because of concerns about falling and further damaging her orbital floor and eye socket; (c) double vision in her left eye, which cannot be corrected; (d) difficulty chewing because of the damage to her temporal muscle; (e) permanent scarring on her hand and stomach; and (f) psychological trauma.

[3] A.W. and B.L.P. testified about what happened during the assault. Their versions differed, including the unresolved issue of whether B.L.P. used a knife to cause the puncture wounds to A.W.’s head.

The Evidence of A.W.

[4] A.W. is 39 years old and the mother of three children aged 22, 17 and her 9-year-old son with B.L.P. At the time of these events, A.W. was 5’4” tall and weighed 100 pounds.

[5] She testified that her relationship with B.L.P. was “on and off.” She did not want to be with him, but he made it difficult to get away from him.

[6] On June 17, 2015, she was charged with assault with a weapon after she threw a coffee cup at him striking him in the head, which required four staples. She was released on her own recognizance with a condition to have no contact with him.

[7] On June 26, 2016, B.L.P. arrived at her apartment. They had an argument about the men she was seeing and he became angry. She videotaped him surreptitiously to show him later how he was behaving.

[8] They smoked marihuana together and at 3:00 a.m. she went to sleep in her bedroom with her son. The next morning, she encouraged B.L.P. to leave, but he refused. She walked her son to school and returned to the apartment.

[9] She went into the bathroom and he followed her. He wanted to talk about their conversation the night before. He was pacing back and forth outside the bathroom and she felt cornered. She told him to leave.

[10] She went into the kitchen and he followed her. He asked her to share a marihuana cigarette with him and she said no. She told him that she was not going to talk to him and put on her earphones to listen to music.

[11] He grabbed her arms and began pulling her out of the kitchen. He was squeezing her hand so hard that she dropped her iPhone. He pulled her into the living room and slammed the left side of her face against the tile floor three or four times. She testified that it felt as if he “smashed [my] head like a basketball.”

[12] She was in shock and screaming for help. She thought that this must be in retaliation for throwing the coffee cup at him because he told her at the time that she “should have been dead for that” and that he was going to “get her back.”

[13] A.W. was on her back on the floor trying to scratch him wherever she could. She bit him on his arm and he “slammed” her to the floor, biting her twice on the cheek, which caused the skin under her right eye to burst open.

[14] He got on top of her and punched the left side of her face. She could not see anymore, but she felt him dragging her down the hall to the second bedroom where he continued to punch her.

[15] He put his hands around her throat to choke her. When she started to pray out loud saying “Our Father,” he put his hand down her throat. He was on top of her pressing his body into hers and she was flailing her arms fighting for her life. She tried to bite down on his hand, but the more she opened her mouth, the further down her throat he put his hand. He was grunting and saying nothing. He was pressing so hard on her chest that it was burning and she could hear a crushing sound.

[16] She recalled being on the floor and on the mattress. She testified that she must have passed out and when she regained consciousness, she said “please stop.” He choked her with both hands and she passed out again.

[17] When she regained consciousness, she was lying on her back with her knees up trying to push him off of her. He was holding a knife with a black handle and was trying to lunge at her stomach. She grabbed the knife with both hands as he was trying to stab her and the knife caused cuts to her stomach and hands.

[18] When she begged him not to kill her, she felt blows to her head and sharp pains in her head.

[19] A.W. recalled being unconscious and lying on the mattress and hearing sounds as if B.L.P. was moving things around in the living room. When he returned to the bedroom, she told him that she felt pain in her head and had to go to a hospital. She promised not to tell anyone what he had done.

[20] He told her that he had to get his car, which was parked on another street. He took her apartment keys and she heard the door lock. She went to the bathroom and saw blood in her eyes and on her face and hair. The comforter that had been on top of the mattress was on the living room floor covered in blood.

[21] She picked up her iPhone from the floor and took a picture of her face which she sent in a text message to two friends with the word “help”. When B.L.P. returned, he helped her down the stairs and into his car.

[22] On the way to the hospital, he was telling her to convince people that two women had “jumped” her. She noticed that he was taking a detour past a ravine and she became afraid that he would put her in the ravine, but there were people around. When she agreed to his story, he took her to the hospital and left her there. A.W. told the security guard and the nurse that B.L.P. had caused her injuries. She asked that the police pick up her son at school.

[23] A.W. was asked to describe her injuries and how they have affected her life. She testified that she sustained the following knife wounds: 9 puncture wounds to her head, which required 17 staples; a cut to the top of each hand, and 3 scar wounds to her stomach.

[24] She sustained an orbital fracture to the bone of her left eye socket requiring surgery and the insertion of five titanium plates to support her eye socket. She required stitches under her right eye where her cheekbone was bitten. Her nose was fractured in three places, and her jaw bone was swollen from B.L.P.’s hand down her throat.

[25] She underwent occupational therapy and psychological counselling. She suffers from constant pain in her head, double vision, headaches, sensitivity to cold and light, and depression. Her ability to work as a personal care worker has been affected because she cannot lift anything weighing more than 20 pounds. She is afraid of B.L.P.

[26] In cross-examination, A.W. testified that the night before the assault, she videotaped B.L.P. without his knowledge because he was irate and accusatory and she wanted to show him that he was harassing her about going out with other men - things that she did not have to explain to him. It was his way of controlling her. She denied that the argument concerned her outstanding assault charge or threats from neighbours.

[27] She denied that after she took her son to school the next day, she told B.L.P. that she had a confrontation with neighbours who were insulting their son and that she wanted him to talk to them.

[28] She denied that she assaulted him by slamming the front door on his hand while he was leaving the apartment that morning. She denied that when he came back into the apartment, she pointed a kitchen knife at him. She denied that she started to carry the knife after a neighbour threatened to kill her.

[29] She denied that the fight with B.L.P. started in the front entrance of the apartment when he took a knife from her hand. She denied that she spit in his face and that his reaction was to put his hand in her mouth.

[30] She maintained that B.L.P. “smashed” her head hard onto the floor and that he did it more than once.

[31] She testified that, while B.L.P. was lunging at her stomach with the knife, he was holding the knife handle with his right hand. His left hand was around his right hand. She said that she was holding onto both of his hands and trying to push him off of her with her legs.

[32] A.W. did not know where B.L.P. got the knife. She agreed that she could not see the knife causing the sharp pains to her head, but she felt the wounds being inflicted. She also agreed that it was possible that she told people at the hospital that she was hit by the blunt edge of a knife.

The Evidence of B.L.P.

[33] B.L.P. is 43 years old. He is 5’ 8” tall and weighs 170 pounds.

[34] On June 26, 2016, he was at A.W.’s apartment. They had sex, watched a movie and smoked marihuana. They had a discussion about women in the neighbourhood who were threatening her. He testified that they were each dating others, but they were sleeping together quite frequently. He was not pushing her to be in a relationship with him.

[35] The following morning, she walked their son to school. When she returned to the apartment, she was upset because she had an argument with a neighbour whose child went to the same school. She asked B.L.P. to become involved in the dispute, but he told her that he could not do so.

[36] She put on her headset and started walking towards the kitchen. He pulled off her headset and followed her and he stopped at the doorway to the kitchen. When she started washing dishes, he asked her to smoke a marihuana cigarette with him, but she said no.

[37] He walked down the hallway rolling the marihuana cigarette. She followed him down the hallway and told him that he had to do something about the neighbours who were threatening her. He told her that he could not get involved and she said that she would get someone who would.

[38] B.L.P. became upset. He walked past her and swung open the front door to the apartment. She slammed the door on his hand. He yelled, turned around, and came back into the apartment.

[39] A.W. pulled out a three- or four-inch kitchen knife that she carried with her because there were a lot of people in the area who were threatening her.

[40] She jabbed the knife at him and he grabbed her right wrist with his left hand. She told him that she hated him and spit in his face. She told him to leave and spit in his face again.

[41] He shoved his hand down her throat up to his knuckles and she bit his hand. He kept his left hand on her right hand and shoved her backwards. The back of her head hit the corner of the wall leading down the hallway.

[42] They continued to “scuffle” down the hall and her head hit the door frame to her bedroom. They were still “tussling” and he was still holding her hand. She hit her head on the door frame to the second bedroom and the impact caused his hand to come out of her mouth.

[43] She had the knife in her right hand and she was waving it. He struck her with his clenched fist near her right eye. When they were one foot inside the second bedroom, he “hammered” her in the face. When they were two and a half feet into the bedroom, he hammered her a third time.

[44] She fell onto the floor and he fell on top of her. As they were falling, her head hit the side of a table located a few feet from the foot of the mattress and the knife dropped from her hand. She reached for the knife and he kicked it into the closet. He hit her on the nose with his fist and she bit him on the arm. Then he bit her twice on her right cheek, which “cut her cheek open.” She grabbed his face and raked her nails across it.

[45] B.L.P. testified that A.W. was kicking and “railing” with her arms as the fight continued on the floor of the bedroom from the foot of the mattress along the right side to the head of the mattress. As they moved around the bedroom, he hit her in the face and the back of her head came into contact first with the leg of a desk and then with a stereo on the floor. He shoved her into the side of a stereo speaker on the floor where she struck the back of her head again.

[46] They continued the fight down the right side of the bedroom until they reached the foot of the mattress on the right side. There he grabbed her by the throat and “gave her a couple of punches to the face.” She turned onto her side and he struck her on her head five to seven times.

[47] B.L.P.’s evidence was that when he saw what he had done, he put A.W. on the mattress. He walked down the hallway and when he returned to the bedroom, she told him that she had to go to the hospital.

[48] He washed his hands and face and left to get his car. When he returned ten minutes later, she was dressed and the bedroom had been cleaned up. The comforter was near the front door and the blood on the comforter was smeared on the floor.

[49] B.L.P. testified that he walked her down the stairs and drove her straight to the hospital. She was concerned about getting into trouble because of her bail condition to stay away from him. She asked him what they were going to say about what had happened. He told her to say that two women in the neighbourhood “jumped” her.

[50] She asked him to clean up the apartment so that their son would not see it and to pick him up at school.

[51] After dropping her off at the hospital, B.L.P. returned to the apartment, mopped the floor and cleaned the bathroom. He took the comforter to the basement of the building and threw it into the garbage because she told him to do so. He did not see the knife and he did not look for it.

[52] He testified that as a result of the fight, he sustained two cuts to the inside of his left hand, a cut to the inside of his right hand, scratches on his right cheek and nose, and a bite mark on the top of his right hand. He testified that none of his injuries were caused by a knife.

[53] In cross-examination, B.L.P. testified that on June 26, 2016, he asked A.W. about her other relationships because he did not want her sleeping with anyone else. He agreed that he was sleeping with someone else, but that he had not disclosed that relationship to A.W.

[54] He maintained that the following morning, the fight started inside the front door of the apartment and continued down the hallway. He agreed that he pushed her into the walls as they were fighting in the hallway, that the punches were intentional, and that his hand was down her throat.

[55] After she banged the back of her head on the door frame to her bedroom, it was bleeding. When she hit the door frame to the second bedroom, there was more blood coming from her head.

[56] He testified that when they were one foot inside the second bedroom, he struck her in the eyes and nose. When she fell, he fell on top of her and she struck her head on the table. At the time, she was bleeding from the left side of her head and forehead.

[57] When she lifted her head off the floor to reach for the knife, he kicked it in the direction of the closet and struck her in the face, causing her head to hit the floor.

[58] After her head hit the leg of the desk, the stereo and the stereo speaker, she was flailing on the floor and kicked over a chair near the window. B.L.P.’s evidence was that at that point, he “lost it” and hit her four times with a clenched fist using a downward hammer motion on the top or back of her head.

[59] After the fight, he leaned her against the mattress and put her head on the bottom right corner of the mattress. Then he put her on the mattress and lay down beside her briefly. He agreed that there was a significant amount of blood on the mattress.

[60] He also agreed that after the last few punches to her head, she was “out of it” for a couple of seconds. He denied that she was unconscious when he put her on the mattress. His evidence was that she was dazed and that her eyes were badly swollen.

[61] He agreed that there was no blood found on the walls or door frames in the hallway.

[62] When he was asked how she sustained the wound to her abdomen, he said that the knife could have “turned into her” during the fight.

[63] He testified that after A.W. no longer had the knife and he hit her four times on the top or back of her head, he went “way too far.” He denied that he used a knife on her head.

[64] He denied that they touched the bedroom closet during the altercation. He agreed that there was blood found on the inside of the closet door and suggested that the blood came from his son’s frequent nose bleeds.

[65] He had no explanation for why no blood was found on the table in the bedroom, despite his testimony that her head struck the table after he punched her in the face and fell on top of her.

[66] He maintained that there was no altercation in the kitchen or the living room. He agreed that there were blood smears on the wall at the entrance to the kitchen and blood on the water pitcher and oven drawer.

[67] He agreed that blood was found on the kitchen and living room floors and suggested that it came from A.W.’s “messy clean-up” of the apartment when he went to get his car.

The Position of the Crown

[68] The position of the Crown is that in the living room, B.L.P. targeted A.W.’s head by smashing it on the tile floor several times. Then he punched her in the head multiple times and bit her face twice.

[69] In the second bedroom, he targeted A.W.’s head by choking her and putting his hand down her mouth to gag her. He pressed his body on her to get her to stop breathing, causing her to become unconscious several times. He attempted to stab her in the stomach more than once. He stabbed her in the head repeatedly.

[70] The Crown submits that the court should place little weight on B.L.P.’s evidence about A.W. hitting her head against the wall and door frames in the hallway; about what happened in the bedroom, and about whether she cleaned up the apartment.

[71] It is submitted that A.W. was not asked about B.L.P.’s version of these events, in violation of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), which requires counsel to put a matter to a witness where counsel intends to present contradictory evidence on the same matter through a later witness.

[72] The Crown asserts that B.L.P.’s evidence about striking A.W. several times in the head, causing her to fall and hit her head on a table before he fell on top of her, is simply not believable. The Crown also asserts that B.L.P.’s evidence about A.W. striking her head on a desk, stereo and speaker while bleeding from her face and head is not credible.

[73] It is submitted that striking her head against the wall and door frames and the objects in the bedroom would not have resulted in puncture wounds. Further, the cuts to her hands and stomach were defensive wounds that she sustained as she was fighting for her life by holding B.L.P.’s hands, which were wrapped around the knife handle.

[74] The Crown contends that it defies logic that, with a damaged orbital floor and eye socket, ruptured pupils, ruptured blood vessels in her eyes and puncture wounds to her head, A.W. cleaned the apartment because she was worried about her son seeing the damage.

[75] Thus, the Crown’s position is that the evidence of B.L.P. cannot be believed and based on the evidence of A.W. and the physical evidence of blood at the scene, the aggravating facts have been proven beyond a reasonable doubt.

The Position of the Defence

[76] The position of the defence is that when B.L.P. refused to do anything about the neighbour’s threats, A.W. became angry and assaulted him by slamming the front door on his hand. It is submitted that she reacted in the same way a year earlier when she threw a coffee cup at his head.

[77] It is the position of the defence that when B.L.P. came back inside the apartment, A.W. pulled out a knife. He grabbed her by the throat and put his hand down her throat in retaliation for her spitting on him. During the physical fight that ensued, B.L.P. was reacting to the fact that A.W. had a knife in her hand. It is agreed that he struck her repeatedly in the head even after she lost her grip on the knife.

[78] The defence submits that there is no evidence as to what caused the wounds to A.W.’s head because she did not see them as they were being inflicted. Further, there is no evidence that the wounds were caused by a knife. The defence maintains that the wounds were caused by B.L.P.’s fist. Further, this was a brutal assault within a brief period of time and his explanation of how she sustained her injuries makes sense.

[79] The defence states that A.W. testified that B.L.P. was trying to stab her with a knife in a downward thrusting motion using two hands. It is asserted that the scratch to her abdomen and nicks to her hands are not consistent with her description of what happened.

[80] The defence contends that A.W. was worried about having breached her recognizance by having contact with B.L.P. She cleaned up the apartment when he left to retrieve his car and she instructed him to clean up the apartment when he left her at the hospital. It is agreed that there was a great deal of blood and the clean-up would have caused the blood smears identified by the chemical spray.

[81] The position of the defence is that the Crown has not proven beyond a reasonable doubt that, at the end of a brutal assault, B.L.P retrieved a steak knife from the kitchen, returned to the bedroom and commenced another assault against A.W. using the knife. The defence asserts that it is not plausible that, in her exhausted and semi-conscious state, A.W. was able to fend off B.L.P. and prevent him from seriously stabbing her.

[82] Accordingly, the Crown has not proven beyond a reasonable doubt that a knife was used in the manner alleged by A.W.

Findings

[83] B.L.P. suggested that the blood smear on the wall at the entrance to the kitchen came about as a result of his son’s nose bleeds or as a result of his son playing with friends. It is more plausible that A.W. was first assaulted in the kitchen. She was bleeding significantly and the blood smear was deposited on the wall as she was being dragged into the living room.

[84] B.L.P. testified that A.W. bit him and did not let go until she banged her head a third time on the door frame to the second bedroom when she unclenched her mouth from the force of the bang. His version does not make sense.

[85] Contrary to his evidence that they did not have contact with the closet door in the bedroom, blood was found on the inside of the closet door. Contrary to his evidence that A.W. was bleeding when her head struck the table and the desk, there was no blood found on either object.

[86] B.L.P. testified that he kicked the knife towards the closet and did not see it afterwards. The police did not find a knife.

[87] I find that B.L.P.’s evidence was internally inconsistent. He also attempted to minimize facts that were agreed upon and refused to admit facts that were agreed upon, such as whether A.W. was unconscious more than once. In my view, his version of what occurred during the assault lacks credulity.

[88] A.W.’s evidence was forthright, consistent and credible.

[89] On the evidence that I accept, I conclude that after smashing her head on the floor tiles in the living room and repeatedly punching her in the face and biting her, B.L.P. dragged A.W. into the second bedroom where he choked and gagged her and got on top of her, rendering her unconscious intermittently. A.W.’s evidence that B.L.P. was grunting and did not say a word describes the intensity, rage and brutal nature of the assault.

[90] During the struggle in the second bedroom, B.L.P. attempted to stab A.W. in the stomach with a knife. Then he “lost it” and used the knife to stab her repeatedly in the head. He cleaned up the apartment in order to cover his tracks.

Disposition

[91] Applying R. v. W.(D.), [1991] 1 S.C.R. 742, on the basis of the evidence that I accept, I am satisfied beyond a reasonable doubt that the blood on the wall into the kitchen and on the floors in the living room and second bedroom corroborates A.W.’s version of events that the assault happened in the way she described.

[92] Accordingly, I am satisfied that the Crown has proven the aggravating facts beyond a reasonable doubt.

DUNNET J. Released: July 20, 2018

COURT FILE NO.: CR-17-30000618-0000 DATE: 2018-07-20 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – B.L.P. Accused RULING ON GARDINER HEARING Dunnet J. Released: July 20, 2018