Court File and Parties
COURT FILE NO.: 141/17 DATE: 20181102 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Juan Camilo Garcia Barbosa Defendant
COUNSEL: S. Monaghan, for the Crown H. Bracken, for the Defendant
HEARD: October 10, 11 and 12, 2018
Restriction on Publication
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Mcarthur, j.
Introduction
[1] On February 6, 2017, the complainant had been at the defendant's apartment for the weekend. At some point, the parties became involved in a prolonged argument in the bedroom over the cell phone belonging to the complainant.
[2] The argument was precipitated by frequent and repeated communications received by the complainant from her sister at that time. Both parties made disparaging comments to each other and in the context of a troubled relationship that had involved mutual past infidelities.
[3] A physical encounter occurred that involved the complainant falling onto her tailbone and back. The complainant sustained a very mild fracture at T12 and T11 without damage to the spinal cord.
[4] The complainant maintains that she was assaulted by the defendant and blocked from exiting the bedroom by him over a prolonged period at that time at the defendant's apartment.
The Charges
[5] Mr. Barbosa is charged that on February 6, 2017 in the City of London he did, in committing an assault on S.W., maim S.W. and thereby committed an aggravated assault contrary to s. 268(2) of the Criminal Code of Canada; and further he did on this same date and location without lawful authority confine S.W. contrary to s. 279(2) of the Criminal Code of Canada.
The Proceeding
[6] This case heard evidence and submissions over three days. This is the decision in this case. There is a non-publication order in effect involving the name and identity of the complainant.
Issues
[7] The ultimate question in this case is whether the Crown has proven its case beyond a reasonable doubt. The key issues in this case are that of credibility and reliability.
Applicable Legal Principles
[8] As I have considered the evidence and the submissions, I am mindful that the test in a criminal trial is whether the Crown has proven the offence beyond a reasonable doubt. When I assess this evidence, all of the evidence must be considered in determining whether the Crown has met its burden.
[9] In this case, Mr. Barbosa is presumed to be innocent, unless and until the Crown has proven the offences beyond a reasonable doubt. It is not enough for me to believe that Mr. Barbosa is possibly or even probably guilty. Reasonable doubt requires more.
[10] As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.
[11] In this case, Mr. Barbosa did not testify nor is he required to do so.
[12] I am otherwise mindful of the principles articulated by the SCC in R. v. W (D). Since Mr. Barbosa did not testify, then the test here is whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt that the Crown has proven the defendant is guilty of these charges?
The Crown's Case
[13] Mrs. Renate Ivin resided with her husband in Unit 402 which was two units down from the unit occupied by the defendant that was basically at the opposite end of the building on that floor. She did not know the complainant. She had seen the defendant from passing in the hallway and walking his dog but did not know him otherwise.
[14] On the date in question Mrs. Ivin had been asleep and awoke to loud voices coming from the hallway. She looked through the peep-hole in her apartment door and observed the complainant crouched on the floor and crying. She opened her door and the complainant indicated that she had been in a fight with her boyfriend. Mrs. Ivin was about four feet away from the complainant who was about four to five feet away from the elevator doors. Mrs. Ivin then directed her husband to call the police which he did.
[15] Mrs. Ivin observed the complainant was distraught, sobbing, very emotional and complained of a sore back that she said happened in an argument with her boyfriend when she was thrown to the ground. Mrs. Ivin did not observe any injuries to the complainant and remained with the complainant until the police arrived. She did not observe the defendant throw a cell phone at any point.
[16] Constable Jared McLean was the initial investigating officer who arrived on the scene at 2:17 a.m. and proceeded to the fourth floor where he observed the complainant in a ball on the hallway floor. The complainant complained of a sore back. He observed no other injuries to the complainant. The complainant indicated to him that she was in a fight with her boyfriend who choked her. He also observed a twisted iPhone with broken glass screen. He then spoke to the defendant who let him enter the apartment. He did not observe anything out of the ordinary in the apartment.
[17] Medical evidence was tendered by Crown counsel and admitted on consent by the defence. This involved the records of the hospital including the attending physicians. The complainant was diagnosed with a very mild compressed burst fracture at T12 and T11 with no spinal cord injury. The complainant received pain and other medications. The clinical records also noted old bruises to her arms. The source of trauma was noted to arise from the complainant and the defendant arguing, the defendant choking the complainant and, in the struggle, the complainant landed on her back on the ground with the defendant covering her mouth with a pillow.
[18] The complainant, S.W., testified over the course of two days with the assistance of closed-circuit television. She is a single mother with a son from a prior relationship. She works for a rehabilitation company. She had been in a relationship with the defendant for approximately two years prior to the incident giving rise to the charges.
[19] The complainant resided in her own apartment in a northeast area London. The defendant resided in his own apartment in south London approximately a 25 minute drive from the complainant.
[20] The complainant had arranged to spend the weekend at the defendant's apartment since her son was with his father for that weekend. She testified that all had been fine between them until the incident. The weekend was Friday February 3 to Sunday February 5, 2017.
[21] The complainant was unsure what day that weekend this incident occurred on. However, the involvement of Cst. McLean was at 2:17 a.m. on February 6, 2017 and the medical reports indicate a commencement time of 2:56 a.m. on February 6, 2017. This places the events into the late evening of February 5 and into the early morning of February 6.
[22] The complainant testified that while in bed that evening, her sister was texting her repeatedly and her phone notification was going off likewise and this upset the defendant who demanded to see the text messages. She then proceeded to go through and show the defendant all of her text messages as well as messages on all of her various social media platforms. The defendant wanted possession of her phone and she resisted, a verbal argument ensued that devolved into him calling her a number of derogatory names to which she replied in kind. She decided to get up to get her various personal things to leave and went to the living room but the defendant would not assist to disconnect the wires from her gaming device so she re-entered the bedroom where he remained.
[23] The conversation between them became more heated and the defendant persisted on wanting her phone. When the complainant went to leave the bedroom, she testified that the defendant got off the bed, closed and blocked the bedroom door. She attempted to move or push by him but he moved his shoulder or chest to block her and told her that she was not allowed to leave until he got her phone. She testified that she became scared because of past incidents and the escalating conduct.
[24] At some point, the complainant got up from the bed and attempted to exit the room and she yelled and screamed at the defendant, hit him and grabbed him by the testicles. She testified he pushed her back, told her to shut up or the cops would be coming, put a pillow over her face to stop screaming and told her to give him the phone. She testified that she then went to the window a foot away and attempted to open it and scream for help and that by this time she was panicky. The defendant then grabbed her phone that was partially out of the top of her shirt. She again went to open the window and the defendant closed it and pushed her toward the bed. She went again and opened the window and yelled for help which made the defendant angry. The defendant was then demanding her password to unlock the phone.
[25] At some point the defendant grabbed her so hard and she fell to the ground on the hardwood floor onto her tailbone then her back, could not breathe, heard a pop and had a searing pain in her back and moved onto her right side where she remained for some time. She told the defendant she was hurt and he replied that she was being dramatic and to get up. When she did not, he got her some pills to take which she did and she soon after then spat them out. She remained on the floor for a while. Matters calmed down and they kissed each other, both of them got onto and laid on the bed, the defendant then ordered a pizza using the complainant's phone and the complainant gave the password to the defendant to call her an Uber taxi since her back was still hurt.
[26] She testified that the pizza delivery person arrived at the apartment door and the defendant went to the door and received the pizza. She remained on the bed and the defendant ate pizza and offered her some but she was not hungry. She then testified that she passed out but was not sure for how long. When she came to, the defendant again became angry and called her derogatory names.
[27] The complainant managed to get out of the bedroom and then broke a glass object that she says was done to give her space away from the defendant. She went into the hallway where she screamed since the defendant was grabbing her and was right behind her at the elevator. The neighbours came into the hall and attended to her and called the police. The defendant threw her phone to her in the hallway. When the police arrived, the defendant was arrested and she was taken to Victoria Hospital for medical attention and where she provided her statement to Cst. McLean.
The Defence Case
[28] The defendant did not testify. The defence case consisted of the filing on consent of Exhibit #4 that was the affidavit of a single witness who had been involved in witness support and the witness preparation of the complainant.
General Legal Principles and Application
[29] As stated earlier, there is no onus on the accused to prove anything in this case. The issue here is whether the Crown has proven the case beyond a reasonable doubt.
Credibility Assessment Principles
[30] I have taken into account the general integrity and intelligence of the witnesses, each witness’s opportunity to observe, their capacity to remember and accuracy in statements. I have also considered whether the witnesses were honestly endeavoring to tell the truth, whether sincere, frank, biased, reticent and/or evasive.
[31] I have considered that the main witness is a younger adult in a quasi-domestic relationship of a two year duration. In assessing the evidence of the complainant, I have been mindful of this context as well as consider all of the evidence presented.
[32] I am also required to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. I have carefully considered what was testified to in the context of all of the evidence in the case and not on an isolated basis. I have determined what inconsistencies exist and whether these are inconsequential or material to the case. Where an inconsistency is significant, I have paid careful attention and addressed the inconsistency.
[33] I have also taken account of confirmatory and contradictory evidence of all witnesses. Confirmatory evidence need not directly implicate the defendant nor confirm the Crown witness's evidence in every respect. Rather, the confirmatory evidence should be capable of restoring the trier's faith in the relevant aspects of the witness' account.
[34] In this case there was no issue and the Crown was able to establish identity, date and jurisdiction.
Analysis
[35] S.W. testified over a two day period. She was respectful and sincere throughout despite a significant level of emotional distress with episodes that made some of her responses difficult to follow at times. These episodes were addressed subsequently through clarification, cross-examination and re-examination by the Crown and defence counsel. Crown counsel submitted that credibility and reliability were important in this case but were not the sole factors where the complainant was injured at some point during this incident that was not an all-out attack but rather an argument over infidelity that escalated in the context of a volatile relationship.
[36] The complainant holds a sincere and firm belief in what she recounted. Nevertheless, there are concerning features of the complainant's evidence that go beyond any problematic presentational aspects and involve the content of her evidence as will be examined. Ultimately, the combination of overarching problematic, insufficient and unexplained features do not permit a suitable and reliable basis to find beyond a reasonable doubt that the acts complained of occurred in the manner she testified to.
[37] There is also a lack of coherence in the evidence of the complainant on some significant features that adversely impacts on the core credibility and the reliability of the complainant. The most notable features central to demonstrate this include the following.
Choking
[38] As mentioned, the complainant was in a high level of distress throughout her testimony. The Crown Attorney and the defence counsel were both most aware and sensitive to this, conducted themselves remarkably well and made enquiries along with the court to suggest and take breaks when she appeared to have any emotional or other difficulties understanding questions or providing answers.
[39] At no time in her testimony did the complainant make any mention or reference, directly or indirectly, to any feature of choking. Cst. McLean testified that one of the first indications the complainant made to him when he attended the apartment hallway was that she was in a fight with her boyfriend who choked her. It was based on this disclosure that he called EMS (Emergency Medical Services) as was the protocol. In addition, at the hospital and in the hospital records, the complainant had indicated during triage assessment that there was arguing with her boyfriend who "was choking her and she landed on her back on the ground" and that "she denies LOC (loss of consciousness) when being choked. LPS (London Police Services) officer in the room taking statement."
[40] Choking was a significant feature to both the investigating officer and medical officials. It was also a feature that was inextricably connected with and intertwined with falling on her back that caused the injury that forms that basis of maiming. Such an omission in context of the case and the nature of the allegation made was both surprising and concerning.
[41] If the Crown, defence and court had not been as sensitive and accommodating as they were, it might have been be possible to attribute an omission to intermittent and undue anxiety and/or momentary forgetfulness. That is not possible here. Rather, it becomes as likely that this was a feature that may not have happened or was exaggerated. The court is left in a quandary with concerns about fabrication or carelessness with the truth by the complainant. This is one feature among others that could not be adequately explained nor reconciled in these circumstance and brought into issue both the reliability and credibility of the complainant.
Post-incident contacts by the complainant to the defendant
[42] The defence raised in cross-examination that the complainant had email contact with the defendant about a week after the incident and also attended at the apartment door of the defendant on her birthday in April 2017, just weeks after the incident. The relevance was in relation to the fear that the complainant expressed of contact or being in the presence of the defendant. This was also the subject in another court proceeding that occurred in the meantime that the complainant testified in.
[43] The complainant had sent a series of emails to the defendant including intimate images of herself approximately a week after the incident.
[44] As to the birthday attendance at the defendant's apartment, the complainant had at the previous proceeding been presented with a video that showed her in the hallway and at the door of the defendant's apartment. The complainant confirmed she had been out celebrating her birthday with her friends in downtown London, drinking tequila and that she had no recollection of leaving her friends, attending the defendant's apartment on her own on this date nor of returning home. The complainant's explanation basically was that she was extremely intoxicated.
[45] The Crown submitted that the context of their two year relationship and their volatile dynamic was important to be considered in view of these actions. An understanding of the context may well explain the emails sent to the defendant by the complainant approximately a week after this incident.
[46] As to the attendance at the defendant's apartment, the context alone does not explain the complainant's actions nor does her indication of extreme intoxication. Such actions involved travelling a substantial distance on foot or making and executing travel arrangements that would involve driving, taxi, bus or otherwise to various destinations and also gaining access to the apartment complex of the defendant as well as ultimately eventually to her own residence.
[47] Such activities over a significant duration would require some meaningful mental functioning which would be inconsistent with a person being so extremely intoxicated. Also, since she was with many other friends on the birthday occasion, it is difficult that a person's extreme condition would go unnoticed or ignored by others without any comment being directed to the complainant.
[48] The complainant impressed me as a person who does not frequently and regularly consume large quantities of alcohol nor had developed a substantial tolerance for alcohol. She is otherwise an educated and articulate person and a single mother who holds employment at a rehabilitation clinic. The complainant was obviously surprised to learn that she was captured on video at the defendant's apartment door and hallway area of the apartment building. I find that her explanation of her lack of recollection was not genuine and further compromised the reliability and veracity of her evidence.
External inconsistencies
[49] The complainant's testimony was that she went into the hallway where she screamed since the defendant was grabbing her and was right behind her at the elevator. The neighbours came into the hall and attended to her and called the police. The defendant threw her phone to her in the hallway. Other than hearing loud voices and seeing the complainant in the hallway through the peep-hole and when she entered the hallway, Mrs. Ivin only saw the defendant when he was being escorted out of the apartment after his arrest.
[50] Mrs. Ivin also saw the complainant in the area that was between the apartment door and the elevator and not in front of it or immediately adjacent to it as the complainant had testified. Mrs. Ivin neither provided evidence as would have reasonably been expected that the defendant threw the damaged cell phone at or to the complainant if this had happened as the complainant testified.
[51] At the hospital, the complainant is also recorded as indicating to medical staff that she “was afraid head was going to be squished in the elevator”. The complainant made no mention of this feature in her testimony before the court. In any event, any positioning of the complainant in relation to the elevator and the presence of the defendant in this respect is inconsistent with the testimony of Mrs. Ivin who was a straight-forward and most credible witness. I find that the defendant was not in the hallway as described nor at any time as the complainant testified.
Internal inconsistencies and problematic features
[52] The complainant’s testimony that was that she did not know when this occurred at one point and over the weekend. The Crown’s position was that this was a volatile relationship in which mutual infidelity caused problems and was the source of the argument. In view of this and other known facts as outlined earlier, this incident would have arisen on the Sunday evening and/or into the early hours of Monday morning. There appears to be no issues of concern or dispute over the earlier part of that weekend. This incident would certainly have occupied a significant duration. At the very least, on the evidence there was a wait of 45 minutes for the pizza delivery that appears to have been a hiatus in the conflict.
[53] Notwithstanding these features, the complainant could not provide any estimates of time. It may be that the complainant was so emotional and confused that these features could not be retrieved and articulated. However, this must be considered in the context of the overall details of the incident and the conduct as related by the complainant. When frequently pressed for times or details, the complainant was unable to provide any meaningful answers.
[54] On her own admission, the complainant indicated that in view of errors in her evidence, she was scrambled and indicated that she sought out others to let them know when she became aware of errors in her statement to police. These comments did not inspire confidence in her evidence and could not be adequately explained.
[55] For example, the complainant had testified that when she as in the bedroom, she was persistently looking to get out of the bedroom to leave and get away from the defendant. She testified that she screamed for help on a number of occasions including getting up and going to open the bedroom window. It was at some point in the bedroom, according to her evidence, that she fell on her tailbone.
[56] As mentioned earlier, the complainant related the defendant choking her and this distinctive feature is absent from her evidence. At trial, she had the defendant pulling her back and causing her to fall. It is impossible to reconcile the differences or find the evidence on this point to be sufficiently reliable. The court must be confident in the evidence to make a finding beyond a reasonable doubt that the defendant assaulted and confined the complainant. The confidence is lacking here especially when taking into account all of the other evidence in this case.
[57] Additionally, what followed according to the complainant was a call made from her phone to order, pay for and have a pizza delivered to the defendant’s apartment. When the pizza was delivered, it was then eaten by the defendant while they both laid on the bed. The complainant had apparently passed out from some reason, came to and eventually left the bedroom. She then broke a glass and exited into the hallway with the defendant behind her.
[58] There was a discrepancy in the evidence as to who called to order the pizza; however, this was little consequence in itself. However, the complainant’s phone required her password and this was then obviously provided by the complainant after the fracas on which the charges were based and which had been the primary substance of the argument.
[59] These actions as testified to by the complainant lack a practical and sensible coherence particularly in a situation of the escalation of argument, a significant fear and a repeated desire of the complainant to flee the situation. Knowing the pizza was going to be delivered, that it was delivered and that the defendant was no longer in the bedroom were features that provided considerations and obvious opportunities to leave. For some reason, all of these opportunities escaped at least contemplation or passing reference in even some minor way.
[60] Crown counsel submitted that the conduct of the complainant could be understood in the context of the dynamic domestic relationship of these persons. In this case there was an absence of threats or circumstances in view of the conduct of the complainant including grabbing the defendant as described earlier. Such features and conduct by the complainant are not in harmony with one being concurrently passive, resigned or disabled by conflicted feelings during the same incident.
[61] Other inconsistencies exist. For example, on cross-examination, the complainant testified that she did not eat the pizza because she was not hungry. In her statement to police she indicated that she had not eaten all day. She also testified that the defendant had ordered the pizza and in her statement to police that she had ordered the pizza. She later explained that she had to provide the password so that the defendant could use her phone to order the pizza. Also, she testified that her injuries included bruising on her arms. This was observed by the doctors in the medical reports as old bruises to her arms.
[62] Standing alone, these inconsistencies might be of minor consequence. However, given the many inconsistencies and problematic features, these created a constellation of concerns about the reliability of the complainant’s evidence that could not be reconciled nor be resolved.
[63] When considered in relation to the overall evidence, the fundamental reliability of the content of the evidence of the complainant was lacking to support a finding of an assault and confinement beyond a reasonable doubt. Indeed, it would be dangerous to do so even if the standard was on the basis of the balance of probabilities in this case.
Maiming
[64] In view of the prior reasons, it is unnecessary to address whether the injury to the complainant constituted being maimed. If it was required to be addressed, I would have found that maiming had not been proven on the evidence.
Conclusion
[65] I find that the Crown has not proven beyond a reasonable doubt that the defendant assaulted or confined the complainant. The defendant shall be found not guilty of both counts and the charges are dismissed.
“Justice M.D. McArthur”
Justice M.D. McArthur