Court File and Parties

Court File No.: 1978/18 Released Orally Date: 2019-03-13

Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Steven Manuel Espinola, Defendant

Counsel: D. Nicol, for the Crown R. McFadden, for the Defendant

Heard: December 10 and 12, 2018

Justice: R. Raikes

[1] Mr. Espinola stands charged with:

1. Break and enter of a dwelling house at 162 Cecil St. and, while inside, commission of the indictable offence of kidnapping contrary to s. 348(1)(b) of the Criminal Code;
2. Unlawful confinement contrary to s. 279(2) of the Code;
3. Kidnapping contrary to s. 279(1)(a) of the Code; and
4. Assault contrary to s. 266 of the Code.

[2] The events giving rise to the charges took place on the morning of May 3, 2017 in Sarnia. The complainant is the same for each charge: Mr. Espinola’s former fiancée, Brittany Courteau.

Legal Principles

[3] There are two fundamental principles that apply to every criminal trial:

a. The presumption of innocence; and b. The requirement that the Crown prove each constituent element of the offence beyond a reasonable doubt to displace the presumption of innocence.

These principles apply regardless of the offence, the accused or the alleged victim.

[4] A reasonable doubt is one that is based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence. It is not a doubt that is farfetched or frivolous, nor one based on sympathy or prejudice.

[5] It is not enough that I conclude that Mr. Espinola is probably or likely guilty. That is not proof beyond a reasonable doubt. I must be sure that he committed the offence for which he is charged.

Facts

a. History of Relationship

[6] Mr. Espinola is 45 years old. He is 20 years older than the complainant, Ms. Courteau.

[7] Mr. Espinola met Ms. Courteau in December 2012 when he was working out-of-town and staying in a hotel at which Ms. Courteau worked. She was then a month shy of her 19th birthday.

[8] She began cohabiting with him near the end of 2013. At that point, he was residing with his mother in Sarnia as his home was rented out. They moved into his home at 863 Westbury Court in Sarnia approximately 5 months later. Mr. Espinola has four children by a prior relationship. One of his children no longer lives at home; the other three live with him every other week. Ms. Courteau helped in their care while they were together as a couple.

[9] Mr. Espinola and Ms. Courteau became engaged to be married in May 2016.

[10] By November or December 2016, Mr. Espinola began to have concerns about their relationship; specifically, he noticed that Ms. Courteau was texting a co-worker a lot. The co-worker, Joel Clarke, was nearer her age.

[11] By January or February 2017, Mr. Espinola felt certain that their relationship was in trouble; there was a great deal of secrecy. She would go into the bedroom and lock the door. She was frequently using her phone. He was sleeping on the couch a lot.

[12] He testified that this was not the first time he suspected her of having a relationship with someone else. He confronted her in 2016, before they became engaged, about a fellow who worked at a local pizza shop. He told her they were done and that she would have to leave. According to him, she broke down and begged to stay. She told him that she loved him; that he was her whole world. He agreed to work it out and they stayed together.

[13] In 2016-17, Mr. Espinola and Ms. Courteau shared a phone plan. The bill would come to Mr. Espinola. He testified that he asked her from time to time who she was texting. She gave him false names but by looking at the bill, he knew she was texting Joel Clarke. He believed that she was lying to him and something was going on between her and Mr. Clarke.

[14] Shortly after midnight on April 27, 2017, Mr. Espinola sent a text to Ms. Courteau breaking up with her. He wrote:

“I’m sorry really really sorry but I don’t think this is gonna work out. I love you and will always love you but I don’t think neither of us feel the same way as it was in the beginning I think it be best for us to split up. After this weekend I’m going to go stay at my mom’s I’ll take Titan with me and till we can figure out what to do. I’m really really sorry but I think your way way better off without me and I just don’t want to live like this anymore. You’ll be way better off without me and happier with somebody your own age I don’t know what happened or when and I’m sorry and I will miss you a lot but I think it’s the best thing for us love you always!”

[15] He continued to reside in the home on Westbury. According to him, she slept there until April 30 when she told him she would be sleeping at her grandmother’s. Thus, by at least April 30, they were no longer living under the same roof and had severed their relationship.

b. Birthday Dinner

[16] Joel Clarke resided at 162 Cecil St. in Sarnia in early May 2017. On May 2, his landlord and owner of the house, William O’Mahoney, was celebrating a birthday. Mr. Clarke, Mr. O’Mahoney and his girlfriend had dinner together. Ms. Courteau joined them for part of the celebration, after which Mr. O’Mahoney and his girlfriend went upstairs to their bedroom and Mr. Clarke and Ms. Courteau went downstairs to where Mr. Clarke’s bedroom was located.

[17] To be clear, the main bedrooms are on the second level of the house. The kitchen and living room are on the main floor. There is a stairway down from the main floor to the basement where there is a large common area room, a bathroom and Mr. Clarke’s bedroom.

[18] Mr. Clarke and Ms. Courteau watched a movie before they went to sleep in Mr. Clarke’s room in the same bed.

c. Mr. Espinola Enters Mr. Clarke’s Bedroom

[19] At approximately 5:30 AM on May 3, 2017, Mr Espinola drove to 162 Cecil St. in Sarnia. He parked his truck in the driveway and went to the back door. He knocked briefly, then tried the door and went inside. Once inside, he went downstairs to the basement to Joel Clarke’s bedroom.

[20] Mr. Espinola had previously met Mr. Clarke. He met him at a Christmas party and, at Ms. Courteau’s request, he also helped Mr. Clarke move by allowing the use of his pick-up truck. Mr. Espinola drove and he went inside during the move. He knew that Mr. Clarke’s bedroom was in the basement and where in the basement.

[21] It is undisputed that Mr. Espinola was not invited into the house nor did he have a right to be there. Mr. Clarke thought the door was locked as usual but could not be sure.

[22] Mr. Espinola testified that he went to Mr. Clarke’s home to satisfy himself that he was right: Ms. Courteau was in a relationship with Mr. Clarke. He testified that his intent was “just to prove and show that I knew what was going on and not to look like a fool, because she would blame everything on me.”

[23] He agreed with his counsel’s suggestion that the only reason for going over was to confront them and let them know that he knew.

[24] Mr. Espinola testified that:

a. He walked straight downstairs and turned on the light to Mr. Clarke’s bedroom; b. He saw Mr. Clarke and Brittany laying on the bed; c. While he indicated he was angry in-chief, he denied that he was angry and said he was only upset in cross-examination; d. Mr. Clarke looked at him and said “sorry” two or three times; e. Mr. Espinola asked him how he could do this? He was wrecking a family. He then told him to shut up; f. Ms. Courteau looked up from under a blanket and asked him what he was doing there; g. He told her that she was supposed to be at her grandma’s, that she was engaged to him three days ago and here she was in bed with Mr. Clarke when she told him nothing was going on; h. She said she fell asleep to which he responded that it was funny she fell asleep in his bed; i. Mr. Clarke said that he would go upstairs to let them talk; j. Ms. Courteau said no, he (Mr. Clarke) had to work so they would go outside; k. He and Ms. Courteau then went outside through the back door; and l. They stood and talked in the driveway in front of the truck; m. She was cold and she asked if they could sit in the truck.

[25] Ms. Courteau testified:

a. She woke slightly when she thought she heard a noise. She thought maybe someone was using a bathroom; b. She woke up to Mr. Espinola in Mr. Clarke’s bedroom; c. She saw his silhouette in the doorway from a light in the hall; d. Mr. Espinola turned on the light to Mr. Clarke’s bedroom; e. She was laying on the bed with Mr. Clarke; f. She could not recall exactly what was said but Mr. Espinola was frantic and erratic. He was pacing the room and was upset; g. Her main focus was to get the defendant out of the house and away from Mr. Clarke. She did not know what the defendant was going to do; h. The defendant told her that he just wanted to talk and she told him they could talk outside; i. She knew that Mr. Espinola had already broken in and she was afraid of a fight in the house; j. They went upstairs, through the mud room and out the back door to the driveway; k. She did not grab a jacket or shoes because she was not planning to go anywhere; l. She was wearing pj bottoms, a T-shirt and no shoes; m. They talked in the driveway. He was upset that she was at someone’s place so soon after they broke up; n. She was cold and shivering; and o. He asked her to get in the truck so they could talk. She agreed but made clear that she was not going anywhere and only if she could keep her door open.

[26] Ms. Courteau did not testify to any force applied to her by the defendant while in the house, nor any threats or coercion to leave the house with him.

[27] Mr. Clarke testified that:

a. He woke at approximately 5 AM to Mr. Espinola entering his bedroom; b. He was not sure if the lights were then on; c. The doorway is roughly 10-15 feet from the bed; d. He recognized Mr. Espinola; e. Mr. Espinola seemed mad at the scenario; f. Mr. Espinola was saying things but he cannot recall exactly what was said; g. He was in shock because he just woke up. The situation felt weird and embarrassing. He was a little scared; h. Ms. Courteau was in bed beside him. She stood up on the other side of the bed; i. They tried to get Mr. Espinola to leave; j. At some point, Ms. Courteau and Mr. Espinola went upstairs and outside; k. He did not recall what Ms. Courteau was wearing; l. He went upstairs later and looked out a window. He saw the truck driving away; m. He was unsure what to do next, whether he should call police or not; n. He next saw Ms. Courteau about an hour to an hour and a half later when she returned. She seemed shaken up.

d. Drive to 863 Westbury Court

[28] As mentioned, Ms. Courteau got into Mr. Espinola’s truck in the driveway. I find that they got into the truck so that they could continue their conversation from the driveway. There was no discussion between them beforehand about going anyplace; in fact, Ms. Courteau made it clear to Mr. Espinola that she would only get in the truck on the understanding that they were not going to leave. She also told him that her door was to remain open.

[29] I accept and prefer Ms. Courteau’s evidence with respect to their discussions in the driveway and the basis upon which she got into the truck. I note that she was not dressed appropriately for the cool weather that morning and she was hardly dressed appropriately for going someplace else. She was still in her nightwear without shoes.

[30] Ms. Courteau testified that once in the truck, Mr. Espinola started it and threw the vehicle quickly into reverse out of the driveway. The doors closed and locked. She tried to open her door and could not. She felt panicked and was yelling at Mr. Espinola to let her out.

[31] Mr. Espinola testified that they were talking in the vehicle with the doors closed when he noticed Joel Clarke looking out at them through a window. He did not feel like having his conversation with Ms. Courteau while being watched by Mr. Clarke. He put the vehicle into reverse, backed out of the driveway and drove. Ms. Courteau did not try to exit the vehicle nor did she ask to be let out.

[32] Ms. Courteau testified that as they drove away from 162 Cecil Street,

a. She realized that she had her cell phone in her hand; b. Mr. Espinola wanted her cell phone; c. She tried to unlock and open her door twice as he was driving. When she did this, he swerved the vehicle so that her door would close and relock; d. She was scared. She had never seen Mr. Espinola act like that before. She had no idea what he was capable of. He was angry and aggressive and did not look like himself; e. She initially had no idea where they were going or what was going to happen. She realized as they got closer that he was taking her to 863 Westbury; f. While they were driving, he was fighting with her over the cell phone; g. The cell phone fell out of her hand onto the floor on his side of the centre console; h. She reached over to grab it and he pushed her shoulder so that he could get it; i. She tried again and he elbowed her sideways. His right elbow hit her in the face as she was bending down to try to grab the phone; j. He picked up her cell phone and refused to give it back; k. Mr. Espinola was driving the vehicle fast. She was not wearing a seatbelt; and l. They arrived at 863 Westbury within minutes of leaving 162 Cecil Street.

[33] Mr. Espinola told a very different story of their drive to 863 Westbury. He testified that:

a. He noticed Joel in the window which made him uncomfortable. He didn’t feel like looking at his face; b. He put the truck in gear and backed up; c. As he was backing up she was telling him how she had been embarrassed by him; d. Once out of the driveway and on the road, he told her that he was the one who was embarrassed; she was the one in bed under blankets with someone that she said she had nothing going on with; e. She then punched him in the face and went to hit him again; f. He hit her arm away from his face which caused her arm to hit the gearshift into reverse. He pushed her back against the door because the truck clicked until it got to a certain speed and then came to a screeching halt; and g. He yelled at her to stop it and proceeded to drive to his home address.

[34] In cross-examination, Mr. Espinola indicated that she asked him where they were going and he told her “to the house”. He agreed that she did not tell him to go there but she also never said not to. He also testified that he could not speak for the way she was acting; that she was “perfectly fine emotionally”, although she was angry and upset that he had embarrassed her

[35] He agreed that he tried to get the phone from her. He testified that: “I just felt like I wanted to see and - if I was right or not and she would admit it. I wanted her to admit.” He denied that there was a struggle in the truck over the phone; rather, he went to grab it and it flew out of her hand. He denied that he got angry with her but said that he was upset that his truck was thrown into reverse and she was attacking him.

e. At 863 Westbury Ct.

[36] When they arrived at 863 Westbury Ct., Mr. Espinola pulled the truck into the driveway and got out. According to him, he walked to the front door of his house, a side-split, and turned and asked if she was coming. She got out of the truck on the passenger side and paused briefly before walking into the house. He walked in first, she followed and she shut the door behind her. She then walked into the kitchen and sat on a chair at the kitchen table. He was standing 10 – 11 feet away from her in the living room. He could see her through the archway that connects the two rooms.

[37] Mr. Espinola testified that he just wanted her to admit that something had been going on with Mr. Clarke. He wanted to hear it from her. She kept denying it. He asked her to unlock her phone if she had nothing to hide and she refused.

[38] He then told her that he knew and how he knew at which point she broke down crying. She asked how he could ever forgive her and how could she do that to him and the children. She went on to say that she was no good and how he must think of her as a whore to which he responded that he did. She was crying and hysterical.

[39] She turned her head and grabbed a knife from a knife block in the kitchen. He asked her what she was going to do, stab him. She said no, that she hated herself and that she should just kill herself. He then tried to talk her out of it and said that they could work things out.

[40] He moved closer to within 5 feet. They were talking and he was trying to calm her down. He said they could go to counselling. She said he would not because he would never be able to forget and forgive what she had done. At some point, she told him that she had to go to the bathroom. He kept telling her to put the knife down but she would not.

[41] The bathroom is four steps down from the kitchen. She went into the bathroom with the knife and locked the door. He banged on the door telling her to open it. She was not responding. He told her that if she didn’t open the door, he was going to call 911. The door opened a crack, she was crying and asked him not to call 911 because it would wreck her career.

[42] He testified that she was blowing her nose and washing her eyes. He went out the back door and had a smoke. The backdoor was not closed all the way. When she came out of the washroom, she grabbed a sweater from a hook by the backdoor and came outside. He moved a little further away on the porch. They talked for about 10 minutes. She said she was tired and that she wanted to get dropped off by her vehicle. He agreed but only if she would leave the knife.

[43] She did not want to leave the knife but he would not let her get in the vehicle with it. He offered to let her call a cab or she could walk. They went back inside and then walked through to the front door. He was standing outside on the front lawn while she was in the doorway inside the house. She stepped out and threw the knife on the front lawn. She got into his truck and he took her back to Mr. Clarke’s home. He agrees that the return trip took longer because he took a wrong turn. He was unsure because the streets were confusing.

[44] Mr. Espinola denied that he grabbed Ms. Courteau and pulled her up onto the front porch; that he lifted and carried her into the house; that he locked the door and used his body to prevent her from getting out the front door. He denied pushing her away from the front door. He denied that she pointed the knife at him to keep him away from her or put a chair between her and him in the kitchen.

[45] According to Mr. Espinola, he could not physically have lifted Ms. Courteau in the manner she described. He suffered two debilitating injuries at work, one of which resulted in a steel plate in his foot, and the other causes neurological issues including TIA’s if he exerts himself.

[46] Again, there is a significant disparity in the evidence of Mr. Espinola and Ms. Courteau.

[47] Ms. Courteau testified that once they arrived at 863 Westbury, Mr. Espinola got out of the truck and walked over to the front porch. It is only one step up to the porch. He still had her cell phone.

[48] She got out of the truck and stood briefly beside it. She looked around to see if any neighbours were about but none were. She thought about making a break for it and trying to get someone to call police. Mr. Espinola was waiting for her to go inside and she said no.

[49] She came a bit closer to the porch and he grabbed her and pulled her up onto the porch. He then lifted and carried her into the house. She recalls screaming. She tried to hang on to the door frame and struggled to get out of his grip. He is a lot stronger. She broke three fingernails on the door frame.

[50] Once in the house, Mr. Espinola closed and locked the door. He seemed extremely angry. She kept trying to get past him to get to the front door. He blocked her with his body and pushed her back. He was screaming at her to unlock her phone. He wanted to see who she had been texting. He accused her of cheating on him while they were together.

[51] She refused to unlock her phone. He continued to yell at her and to force her back into the house with his body. She was then 5’6” tall. She is now perhaps 130 pounds but was then lighter. He is 5 foot 9 – 5 foot 10” and was easily 50 pounds heavier.

[52] When she tried to run toward the front door, he simply blocked her with his arms and pushed her back.

[53] She gave up trying to go out the front door after a few attempts and moved to make her way through the kitchen to get out the back door. He was getting angrier because she refused to open her cell phone. He was in her “personal space” and was screaming at her.

[54] She grabbed a knife from the butcher block in the kitchen. She estimated the blade to be about 12 inches long. She held the knife in front of her. He laughed at her. He asked her if she was going to stab him. She told him that she was not but did not know what she was going to do. She told him to back up which he did.

[55] She grabbed a chair and put it between them. At that point, Mr. Espinola was telling her that she should kill him because he didn’t want to go on without her anyway. He was standing 5 to 6 feet away from her in the archway of the kitchen.

[56] She then tried to run downstairs to the backdoor. It was locked. She fumbled with the door handle. He was coming toward her so she pulled away and ran into the bathroom and locked the door. She held onto the door handle as he tried to get in. She told him she was not coming out until he calmed down. She then told him she was not going to come out until he went upstairs.

[57] He kept telling her to come out so they could talk things out. She heard him go up the stairs and he sat at the top of the stairs. She came out and stayed where she could run back into the bathroom if needed. She estimates that she was in the bathroom initially about 5-10 minutes before she came out.

[58] Mr. Espinola was sitting on the stairs crying. He was emotional but not angry. At that point, they just talked. She does not recall for how long. She told Mr. Espinola that she had hurt his feelings but reminded him that they were no longer together and he ended the relationship. He told her that he did not mean it and wanted things to work out.

[59] She indicated that she told him that what he had just done was pretty messed up and asked how he expected her to get past it. He suggested counselling or selling a few things and going on vacation together. She agreed because she felt it was the only way to get out of the situation.

[60] He asked her not to go back to Joel’s or to see Joel. He did not want her to work at the sleep clinic with Joel and to focus on their relationship. She told him that he needed to take her back to her car and he agreed to do so. He did not want to take her back while she was holding the knife. She initially told him that she was not putting the knife down but once they were outside, and he told her that he was taking her to her car, she agreed and threw it down on the grass.

f. Return to 162 Cecil St.

[61] When they got in the truck, instead of driving her directly to her car, he drove up and down the streets of the neighbourhood. He kept reiterating their conversation and asking her to confirm that she would keep her word so that they could go forward. She kept telling him yes and just take me to my car. She estimates that it took them approximately five minutes to get to 863 Westbury but 15 minutes to get back to 162 Cecil Street. It was then about 7:30 a.m..

[62] When they got back to 162 Cecil Street, he still had her cell phone. She asked for it. He said he would give it back and would trust her to keep her word. Just before she got out of the truck, he took the cell phone from his pocket. She told him that she needed it for work. Once she was out of the truck, she quickly went inside to get her things.

[63] When she went inside, she told Mr. Clarke what had happened but asked him not to call police. She drove home a few moments after, called a friend and called in to say that she would not be coming into work. She went to see police with a friend that morning. She went to police not to report a crime but because she was concerned about Mr. Espinola’s mental health.

Analysis – Count 1 (Break and Enter)

[64] Count one of the indictment is breaking and entering the residence at 162 Cecil St. and, while inside, committing the indictable offence of kidnapping Ms. Courteau contrary to s. 348(1)(b) of the Code.

[65] The constituent elements of the charge of break, enter and commission of an indictable offence are:

1. The defendant broke into a place;
2. The defendant entered the place; and
3. The defendant committed a specified indictable offence while in the place.

[66] Section 348(1)(a) deals with break and enter with intent to commit an indictable offence. To be found guilty of break and enter with intent, the Crown must prove the following:

1. The defendant broke into a place;
2. The defendant entered that place; and
3. The defendant intended to commit an indictable offence in the place when he broke and entered the place.

[67] There is no question that Mr. Espinola broke into the home at 162 Cecil St. in Sarnia, and that he entered it uninvited and without permission. The first two elements of the charge are satisfied beyond a reasonable doubt.

[68] The Crown asks me to infer that Mr. Espinola’s intent on entering the house was to kidnap Ms. Courteau. He was inflamed by jealousy. The break-up of their relationship was very recent, a matter of days. From his subsequent conduct, I should infer that his plan all along was to remove Ms. Courteau and take her to his home.

[69] Defence counsel submits that such an inference is not reasonable and should not be drawn. Mr. Espinola’s evidence that he merely wanted to confront her and prove to himself that he was right that she was in a relationship with Mr. Clarke is credible and should be accepted. Even Ms. Courteau testified that he said he only wanted to talk.

[70] I have difficulty with Mr. Espinola’s explanation. The fact is that walking into the house at 5:30 AM was clearly inappropriate and wrongful behaviour. He could have knocked on the door and asked to see her. He could have called her and asked her to come outside. He could have waited to see her leave the house. He was acting irrationally and unreasonably.

[71] That said, I am not satisfied beyond a reasonable doubt that Mr. Espinola’s intent when he entered the home was to kidnap Ms. Courteau. He did not make any threat toward her or touch her while in the house. He did not tell her to “get up and come with me”. Frankly, I have the sense that Mr. Espinola had no idea what he was going to do if he found her with Mr. Clarke. He hadn’t thought that far ahead. I decline to make the inference requested by the Crown.

[72] I also find that Mr. Espinola did not force or coerce Ms. Courteau to leave the house. She asked him to go outside with her to defuse the situation, to avoid the potential for a fight between Mr. Espinola and Mr. Clarke, to give Mr. Clarke the chance to grab a bit more sleep before he had to get ready for work or to give him space to get ready since he lived there. It was her idea to go outside and she did so under her own power.

[73] I am not satisfied beyond a reasonable doubt that Mr. Espinola kidnapped Ms. Courteau while inside the house at 162 Cecil St.. The starting point for the taking of Ms. Courteau is after they were outside and only once she got into his truck. There was a clear separation between when she left the house and when she got into the truck. During that period, they were talking or arguing in the drive-way.

[74] I find the defendant did not kidnap Ms. Courteau while in the house nor did he enter the house for that purpose. Accordingly, I find the defendant not guilty of count one on the indictment.

Analysis – Count 2 (Kidnapping)

[75] For kidnapping, the Crown must prove the following essential elements:

1. Mr. Espinola kidnapped Ms. Courteau; and
2. Mr. Espinola kidnapped Ms. Courteau with intent to confine her against her will.

[76] Kidnapping requires that Mr. Espinola unlawfully took Ms. Courteau and removed or carried her away by force or fraud, against her wishes, to another place. The taking is unlawful if he had no lawful authority to do what he did. To carry someone away is to move that person, or cause that person to be moved, in some manner from one place to another. It is not restricted to picking up and carrying the person from one place to another.

[77] Kidnapping is not defined in the Criminal Code. In R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, the Supreme Court of Canada clarified that kidnapping is an aggravated form of false imprisonment. The element of movement differentiates kidnapping from the lesser included offence of false imprisonment. Kidnapping is a continuing offence that begins with the taking of the victim and ends only when the victim is released or consents to detention.

[78] The actus reus of kidnapping consists of the abduction and movement of the victim against his or her will from one place to another. The actus reus may be accomplished by force or fraud.

[79] The mens rea of kidnapping requires proof that the defendant had any one of the “intent” described in s. 279(1) of the Code. Section 279(1) states:

279(1) Every person commits an offence who kidnaps a person with intent

(a) To cause the person to be confined or imprisoned against the person’s will; (b) To cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c) To hold the person for ransom or to service against a person’s will.

[80] To constitute kidnapping there must be a movement or taking of the person from one place to another and not simply the placing of the person in the area of confinement: R. v. Oakley (1977), 1977 ALTASCAD 118, 36 C.C.C. (2d) 436 (Alta. C.A.).

W.D. Principles

[81] With respect to the charges of assault, unlawful confinement and kidnapping, the evidence is largely a matter of conflicting testimony by the complainant, Brittany Courteau, and the defendant, Steven Espinola. They tell very different versions of the events that underlie these charges. It is a classic “she said, he said” situation. Save for the evidence of Joel Clarke who saw them drive away, there is no other witness who was present during these events.

[82] The seminal case of R. v. W.(D.) of the Supreme Court of Canada provides an analytical framework for the assessment of evidence in these circumstances. It is not a matter of merely picking one story or the other to believe. I must consider their respective versions in the context of the whole of the evidence including the evidence of the other. I am entitled to accept all, none or part of any witness’ evidence including that of Mr. Espinola and Ms. Courteau.

[83] If I believe Mr. Espinola’s evidence that he did not do the acts alleged, I must acquit him. Similarly, if, on consideration of the whole of the evidence, I am unable to determine who to believe, I must find Mr. Espinola not guilty because the Crown will have failed to prove his guilt beyond a reasonable doubt.

[84] Even if I do not believe Mr. Espinola’s evidence, if it leaves me with a reasonable doubt about his guilt or about an essential element of the offence, I must find him not guilty.

[85] Even if Mr. Espinola’s evidence does not leave me with a reasonable doubt and I do not believe it, then I must consider whether, on the basis of all of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the defendant. Only then can I convict; otherwise, I must find him not guilty.

[86] I turn now to the kidnapping charge which is count two on the indictment.

[87] I am satisfied beyond a reasonable doubt that Mr. Espinola kidnapped Ms. Courteau when he drove her from 162 Cecil St. to 863 Westbury with the intent to unlawfully confine her there. The evidence establishes that:

1. Mr. Espinola transported Ms. Courteau by means of his truck;
2. He did so against her will and by force;
3. He did so to bring her to his home where he intended to confine her until she admitted to him that she had been unfaithful.

[88] I find that Mr. Espinola knew that Ms. Courteau did not wish to leave the property at 162 Cecil St.; in fact, she told him so before they got in the truck. She told him to let her out and he refused – he continued driving to his home. When she tried to get the door open to get free, he swerved the vehicle to cause the door to close and the locks to engage.

[89] I do not believe Mr. Espinola’s evidence that he merely wished to be away from Mr. Clarke peering out the window. If that was the case, he could have simply pulled his truck around the corner after asking Ms. Courteau if she was okay with that.

[90] Mr. Espinola’s actions on May 3 reveal a man who was distraught. He was acting erratically, irrationally and with anger. He was suspicious of her before he went to 162 Cecil St., and he was angered and upset by what he found when he got there. If all he really wanted was to prove to himself that he was right, he had his answer when he walked into Joel Clarke’s bedroom. If he wanted her to know that he knew she had been unfaithful, he could simply have told her that when he found them in the same bed.

[91] Instead, he argued with her in the drive-way. He was hurt. He was angry. He still cared for Ms. Courteau. He wanted her to admit that she had been unfaithful when they were together. He also wanted her to return to their relationship. Even though he broke it off, he wasn’t done.

[92] When he pulled out of the drive-way, he knew that he was taking Ms. Courteau to his house where until a few days earlier, she also resided. That was where he would get the answers and confrontation he wanted.

[93] I do not accept Mr. Espinola’s explanation of what happened in the vehicle during the brief trip to his house. Mr. Espinola’s version suggests that Ms. Courteau was willing to go to his home; she never said she was not. I find it incredible that having just been startled awake to find Mr. Espinola in Joel Clarke’s bedroom at 5:30 in the morning, seeing him acting in an uncharacteristic and erratic manner, wearing only her night clothes, knowing that he’s upset and angered by her, that she would willingly go home with him. His evidence on this point simply defies logic and common sense, and I reject it.

[94] Moreover, Mr. Espinola’s evidence does not give rise a reasonable doubt in my mind with respect to the kidnapping charge for the same reasons given above.

[95] I must now consider whether the Crown has met its burden on evidence which I do find to be credible and reliable.

[96] I find Ms. Courteau’s evidence as to the travel to 863 Westway to be coherent, compelling and consistent. She was afraid. She wanted out of the truck. She did not want to go with him. He offered her no choice and ignored her requests to let her go. He swerved the vehicle to keep her locked in the truck as he drove. I accept Ms. Courteau’s evidence. I find her evidence to be credible and reliable.

[97] I also note Mr. Clarke’s evidence that after Ms. Courteau and Mr. Espinola went upstairs and outside, he next saw the truck driving away from 162 Cecil St.. This is at odds with Mr. Espinola’s evidence that he saw Mr. Clarke looking out at them and then put the truck in reverse to pull back out of the driveway. I found Mr. Clarke’s evidence to be credible and reliable. He was careful in his answers.

[98] I am satisfied beyond a reasonable doubt that Mr. Espinola kidnapped Ms. Courteau on May 3, 2017. All of the constituent elements of the offence of kidnapping have been proven beyond a reasonable doubt.

Count 4 - Assault

[99] I turn next to the assault charge which is count 4 on the indictment. I am taking it slightly out of order because it fits temporally with the transporting of Ms. Courteau to 863 Westway.

[100] To be found guilty of assault, I must be satisfied beyond a reasonable doubt that:

1. Mr. Espinola intentionally applied force to Ms. Courteau;
2. She did not consent to the application of that force; and
3. He knew that she did not consent to the force that he applied.

[101] Force in this context can be direct such as touching her with his fingers or hands, or indirect such as by use of an object. In this case, the alleged force is direct.

[102] The force applied may be violent or gentle. There is no requirement that the Crown prove that Ms. Courteau suffered bodily injuries as a result. Force includes any physical contact with her, even gentle touching, that is intentional. Accidental touching is not an intentional application of force.

[103] Consent to the application of the force in question involves the victim’s state of mind. To consent, Ms. Courteau had to know what Mr. Espinola was going to do and voluntarily decide to let him do it.

[104] A voluntary decision is one that Ms. Courteau made of her own free will. In ascertaining Ms. Courteau’s state of mind, I must consider all of the surrounding circumstances. I must consider the nature of what happened, any words or gestures that may have accompanied it and anything else that indicates Ms. Courteau’s state of mind. Just because she submitted or did not resist does not mean that she consented to what he did. She has to consent to what he did, how he did it, and when he did it. Her agreement must be given without threats or fear.

[105] The last element requires consideration of Mr. Espinola’s knowledge and state of mind. Am I satisfied that he knew at the time that she was not consenting to the force he was applying?

[106] There were only two persons present in the truck during the drive from 162 Cecil St. to 863 Westway Ct.. They tell very different stories of what happened.

[107] Mr. Espinola testified that she was hitting him and he merely blocked her arm to try to stop her from hitting him again. He pushed her back against the door when she caused his gear shift to go into reverse.

[108] She testified that they were struggling over her cell phone which fell onto his side of the truck. She reached for it and he pushed her. When she went for it again, she dove down to try to reach it on the floor. That is when his elbow caught her in the face.

[109] I have already indicated that I do not believe his evidence that she was hitting him and caused his gear shift to move into reverse. I find that he saw the cell phone in her hand. He wanted her to open or unlock it so she could access her past texts. He wanted her to show him who she had been texting because he firmly believed that she had been texting Joel Clarke; in fact, he knew she had from telephone bills. What he wanted to see was what the texts said – did they show that she and Joel were doing more than texting?

[110] He grabbed for her phone. It fell, landing on his side of the front floor of the truck. She reached to retrieve it and that is when he shoved her. I find that the shove was the intentional application of force by him on her.

[111] With respect to the elbow that hit her face when she reached again for the phone, I am not satisfied that that contact was more than accidental. She was reaching toward his side of the truck. I had the sense that the contact with his elbow was incidental to her reaching over and not intentional on his part.

[112] Returning to the shove, he pushed her back to keep her from reaching the phone on the floor. She did not consent to being shoved; she was trying to get her cell phone back. In those circumstances, Mr. Espinola knew that she was not consenting to being shoved when he pushed her.

[113] To be clear, I do not accept Mr. Espinola’s evidence and do not find that it raises a reasonable doubt. I find Ms. Courteau’s evidence to be credible and reliable, and accept it. Her description of what happened was clear, cogent, consistent and made sense.

[114] I find that the Crown has satisfied me beyond a reasonable doubt that Mr. Espinola assaulted Ms. Courteau in the truck after Ms. Courteau’s phone fell onto the floor.

Count 3 - Unlawful Confinement

[115] Mr. Espinola is also charged with unlawful confinement. To find Mr. Espinola guilty of unlawful confinement, I must be satisfied beyond a reasonable doubt that:

1. Mr. Espinola intentionally confined Ms. Courteau; and
2. That confinement was without lawful authority.

[116] Intentional confinement occurs when the defendant physically restrains another person against his or her will, thereby depriving that person of his/her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for a period of time.

[117] The defendant’s conduct must be intentional, not accidental. There must be a coercive restraint of the victim resulting in the victim’s inability to move about as he or she may wish to do. While there must be a restriction on freedom of movement, the victim need not be bound or tied up.

[118] Lawful authority means a power or right that the law authorizes someone to exercise. Without lawful authority in this context means confinement which the defendant is not permitted by law to impose on the victim.

[119] Once again, the determination of the issues raised by this count of the indictment comes down to the testimony of the defendant and complainant who gave very different accounts.

[120] I am satisfied beyond a reasonable doubt that:

a. Mr. Espinola forced Ms. Courteau into the house at 863 Westway Ct.; b. Once inside, he prevented her from leaving by pushing her back and using his body to keep her from exiting out the front door; c. He knew that she wanted to leave the house; d. He only agreed to take her back to 162 Cecil St. after she pulled a knife from the butcher block in the kitchen, tried unsuccessfully to get out through the back door and locked herself in the bathroom; and e. Mr. Espinola had no lawful authority to confine Ms. Courteau.

[121] I find the defendant’s version of events after they arrived at 863 Westbury to be unreliable as:

a. He testified that Ms. Courteau simply walked into the house after him and she closed the door. That makes no sense given his conduct at Mr. Clarke’s, and he just drove her against her will and shoved her while in the truck. He still had her cell phone which he was refusing to give back; b. He is much bigger than she is and was clearly agitated with her; c. He claimed that he threatened to call police on her while she was locked in the bathroom, despite the fact that he just broke into and entered Mr. Clarke’s house, he drove her against her will to his home and he had shoved her to keep her from getting a cell phone that she had been using for months; d. He indicated that she asked him not to call police because it would negatively affect her career which makes little sense given she was the one taken against her will by her ex-boyfriend; e. He painted her as emotionally troubled when the person behaving badly and inappropriately that morning was him; f. His explanation for the circuitous route back to 162 Cecil St., a place he found without difficulty in the dark and had just driven from, beggars belief; and g. He testified that Ms. Courteau was the one who was remorseful and emotionally overwrought once confronted with his knowledge of her duplicity.

[122] It should be apparent that I find Mr. Espinola’s evidence to strain plausibility to say the least. His actions belie his assertion of rational conduct. In short, I simply do not believe him, nor does his evidence raise a reasonable doubt.

[123] I accept Ms. Courteau’s evidence that Mr. Espinola forced her into the house against her will; and that he kept her from leaving the house until she took what were desperate measures to keep Mr. Espinola from doing anything more than he did.

[124] Ms. Courteau’s evidence was consistent and made sense in the circumstances of their former relationship, Mr. Espinola’s emotional state and events of earlier that morning.

[125] I note Mr. Espinola’s testimony that he could not possibly have lifted Ms. Courteau as she described because of his past injuries, that his 11 year old could take him in a fight, and that such exertion would put him at risk of a TIA.

[126] The fact is that Mr. Espinola was not acting logically on the morning of May 3. He didn’t stop to ask himself whether he could or should grab Ms. Courteau and force her into the house or keep her there. He just did it.

[127] As mentioned, I find that he was distraught. He was acting on raw emotions. He felt angry and betrayed. He wanted Ms. Courteau to admit she had strayed, that she had been unfaithful to him. He was upset by what he saw at Mr. Clarke’s home.

[128] I am satisfied beyond a reasonable doubt that Mr. Espinola unlawfully confined Ms. Courteau in his house at 863 Westway Ct. in Sarnia on the morning of May 3, 2017.

Conclusion

[129] To summarize, I find the defendant, Steven Espinola, not guilty of count 1 on the indictment (Break and Enter), and guilty of counts 2, 3 and 4 (kidnapping, unlawful confinement and assault).

Justice R. Raikes Released Orally: March 13, 2019

COURT FILE NO.: 1978/18 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Steven Manuel Espinola Defendant REASONS FOR JUDGMENT Raikes, J. Released: March 13, 2019