Court File and Parties
COURT FILE NO.: 7859/18 DATE: 2019-06-26 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Dana Peterson, Counsel for the Crown
- and -
D.G. Kenneth G. Walker, Counsel for the Accused
HEARD: April 2, 3 and 4, 2019
GAREAU J.
REASONS FOR JUDGMENT
[1] The accused, D.G., is charged under an indictment dated April 26, 2018 as follows:
D.G. stands charged that he on or between the 1st day of October 2015 and the 13th day of March 2017, at the City of Elliot Lake, in the said Region, did commit an assault on C.C., contrary to section 266 of the Criminal Code of Canada, and
D.G. stands further charged that he on or about the 14th day of March 2017 at the City of Elliot Lake, in the said Region, did commit an assault on C.C., contrary to section 266 of the Criminal Code of Canada, and
D.G. stands further charged that he on or between the 1st day of October 2015 and the 14th day of March 2017, at the City of Elliot Lake, in the said Region, did commit a sexual assault on C.C., contrary to section 271 of the Criminal Code of Canada.
[2] Mr. D.G. has entered pleas of not guilty to the aforementioned charges. The court heard from the complainant, the accused, and three other witnesses with the evidence spanning over two days. Submissions from counsel were received on April 4, 2019, with this matter being put over to June 26, 2019 for decision.
Background
[3] The complainant, C.C., is 34 years of age. The accused, D.G. is two years older. The complainant and the accused met in Elliot Lake, Ontario in the fall of 2015. The complainant was employed in a bar where she met the accused. The complainant does not have children. The accused has two children who he sees on a regular basis.
[4] After dating for a couple of months the complainant and Mr. D.G. moved in together and commenced a common law relationship. They resided at the home of the complainant in an apartment in Elliot Lake, Ontario. In the beginning the relationship between the complainant and D.G. went well, but over time the relationship deteriorated to the point where there were verbal and physical altercations between the two of them. Their relationship was riddled with periods of separation where the complainant and the accused would separate for a period of time and then reconcile.
[5] It is accurate to state that the relationship between C.C. and Mr. D.G. became more volatile and aggressive as time went on. The evidence discloses that there was arguments and aggression on the part of both the complainant and the accused which escalated over time. The complainant and the accused eventually separated on March 14, 2017.
[6] The complainant suffered a serious head injury on November 9, 2016 when she accidentally fell down a flight of stairs sustaining a fractured skull and broken arm. The complainant experienced bleeding on her brain and was hospitalized in Sudbury, Ontario for a period of time. After this incident, the complainant continued to suffer from post-concussion symptoms including dizziness, headaches and short-term memory loss. These symptoms continued up to the time the complainant and D.G. finally separated on March 14, 2017.
The Evidence
[7] Apart from the complainant, the Crown called two witnesses. One of these witnesses was a police officer with the Elliot Lake Detachment of the Ontario Provincial Police. The other witness, Bonnie Rickwood, resided in the apartment next door to the complainant. Ms. Rickwood testified that she knew the complainant who had lived in the next door apartment unit for approximately five years. Ms. Rickwood testified that she also knew D.G., as the boyfriend of the complainant. Ms. Rickwood indicated in her evidence that at approximately 6:00 am on March 14, 2017 she woke up hearing an argument in the apartment next door occupied by the complainant and Mr. D.G.. It was the evidence of Bonnie Rickwood that she heard yelling in the complainant’s apartment and the complainant yelling “get away from me” and “get off me” and “I don’t want your dick”. Ms. Rickwood testified that she heard the complainant crying, like “she was hurt”. Ms. Rickwood testified that “it sounded bad over there” and that she knew “something was wrong”. This prompted Ms. Rickwood to leave her apartment and go to the complainant’s apartment. Ms. Rickwood testified that D.G. answered the door and that she saw the complainant on the bed. She invited the complainant to go with her, which she did. Ms. Rickwood described the complainant as “very upset and crying”.
[8] When she arrived in Ms. Rickwood’s apartment the complainant was asked what she wanted to do. Ms. Rickwood told the complainant, “If it was me, I would call the police.” Ms. Rickwood described the complainant as being hesitant to call the police and that she was indecisive about whether the police would in fact be called. Eventually the police were called and several officers attended at Ms. Rickwood’s apartment. Ms. Rickwood spoke to a female officer while the complainant spoke to a male officer.
[9] It was the evidence of Ms. Rickwood that she did not observe any injuries to the complainant on March 14, 2017. She described hearing arguing before in the complainant’s apartment, “quite often”, as she put it. The doors in the complainant’s apartment would be slammed so hard that Ms. Rickwood’s apartment would shake. Bonnie Rickwood testified that both the complainant and the accused “sounded angry” and that she observed the complainant to leave her apartment in tears on several occasions.
[10] Bonnie Rickwood was aware that the complainant had previously fallen down stairs and that after the fall she was not well, had dizzy spells, and appeared to be in a lot of pain. Ms. Rickwood testified that the complainant had a lot of trips back and forth to Sudbury relating to the injuries that she sustained from the fall down the stairs.
[11] Ms. Rickwood candidly acknowledged in cross-examination that subsequent to March 14, 2017, she learned more about the incident and the complainant’s relationship with D.G. from information provided to her by the complainant. As she put it, the complainant “filled in blanks” for her and that this information came after March 14, 2017 but before she provided her audio statement to the police on May 9, 2017. In cross-examination Ms. Rickwood was adamant that she heard the complainant say “get off me” and “I don’t want your dick” and that this occurred on March 14, 2017 between 6:00 am and 6:30 am.
[12] Constable Brandon Leeson testified that in March 2017 he was a police officer with the Ontario Provincial Police in Elliot Lake, Ontario and assigned to general law enforcement duties as a uniformed officer. Constable Leeson became involved in this matter on March 19, 2017, initially as a property dispute manner to try to facilitate the transfer of items of personal property between the complainant and D.G.. Constable Leeson initially attended with the complainant on March 19, 2017 at 4:10 pm at her residence in Elliot Lake, Ontario. Constable Leeson indicated in his evidence that this meeting focused on the property issue and his role as acting as a mediator with respect to the property dispute between the complainant and D.G..
[13] After this meeting on March 19, 2017, Constable Leeson placed a telephone call to D.G. regarding the property dispute and suggested to Mr. D.G. that he prepare a list of the property he wanted. Mr. D.G. agreed to prepare a list. The next day, March 20, 2017, Constable Leeson returned a telephone call to the complainant who advised him that she continued to receive unwanted messages from D.G., who had threatened to report her to the welfare authorities and to call the immigration department on her father.
[14] Ironically, while Constable Leeson was on the telephone with the complainant, D.G. was at the Police Station to go over his property list with Constable Leeson. Constable Leeson spoke to D.G., who he indicated was upset, talking loudly and pacing back and forth. Constable Leeson described Mr. D.G. as uncooperative and wanting one particular piece of property or there was not going to be a deal on property. At one point in the meeting when he acknowledged messaging the complainant, Mr. D.G. put his hands in the air and said “arrest me – charge me”. It was the evidence of Constable Leeson that he was in a small room with Mr. D.G. and that he “almost felt threatened” by Mr. D.G. so he elevated his voice and told Mr. D.G. to sit down. Mr. D.G. complied, although Constable Leeson described him as “very argumentative” and “not in a cooperative mood”.
[15] Constable Leeson testified that at this point during his meeting with D.G. that he cautioned Mr. D.G. by reading him the formal caution on the caution card and told him about criminal harassment if he continued to contact the complainant. Mr. D.G. indicated to Constable Leeson that he would not contact the complainant and that he was “going to take matters into his own hands”. Mr. D.G. did not agree with the property mediation and kept repeating “all or none”, indicating that either he had all of the property or none of it.
[16] Constable Leeson followed up with a meeting with the complainant on March 20, 2017. He advised the complainant that his mediation on the property issue was not going to work. Constable Leeson then reviewed the messages the complainant had received from Mr. D.G. on her cellphone. Constable Leeson testified that he was concerned with a message in which Mr. D.G. stated, “I shouldn’t put hands on you”. Prior to hearing this statement, at no time had the complainant disclosed to Constable Leeson any physical violence between herself and Mr. D.G.. After Constable Leeson listened to the cellphone messages the complainant became upset and related particulars to Constable Leeson of her domestic relationship between herself and D.G.. It was the evidence of Constable Leeson that at this point the complainant provided him with details of physical assaults and one incident of sexual assault at the hands of D.G.. The complainant showed the officer pictures of bruising that she took and was most upset about being punched in the head, where she had sustained an injury from her fall down the stairs.
[17] After the discussion at the apartment of the complainant, she attended at the Elliot Lake Police Station and provided an audio/visual statement which Constable Leeson monitored. Constable Leeson described the complainant as being “very upset” and crying off and on while providing her statement to the police. Although Constable Leeson did not arrest D.G., he testified that at this point he had formed grounds to lay criminal charges and arrest D.G. who was subsequently arrested.
[18] The defence called Constable Philip Nowiski to testify. He is a 32-year veteran in policing and was stationed in the Elliot Lake, Ontario Provincial Police detachment at the time of his involvement in this matter. Constable Nowiski attended at the complainant’s apartment and spoke to her on March 14, 2017. Constable Nowiski testified that the complainant indicated to him that the past two days she and D.G. had “heated arguments”. It was the evidence of Constable Nowiski that he asked the complainant several times if an assault took place and the complainant answered no. This response by the complainant came after Constable Nowiski explained his role and, in particular, that if an assault took place he would be laying a charge and she would have no control over that. Throughout her discussion with Constable Nowiski the complainant maintained that there were no assaults to her by D.G..
[19] Constable Nowiski testified that he made an entry in his notebook which he read back to the complainant and had her sign. It was the evidence of Constable Nowiski that he was sure that he read back the notebook entry to the complainant before he had her sign it. The tenor of the notebook entry is that the complainant said there were no assaults or threats made to her by D.G.. She had indicated to the dispatcher when she made the call to police that she was assaulted but told Constable Nowiski that she said that because “I was upset – I wanted him gone and we were arguing”.
[20] Constable Nowiski indicated in his evidence that in the course of his discussion with the complainant at her apartment on March 14, 2017, at no time does she reveal that she had been assaulted. Since there was no disclosure of an assault by the complainant, the matter was treated as a non-criminal domestic incident. Constable Nowiski testified that he had some concerns but he “has to go where the evidence leads me”.
Evidence of the Complainant, C.C.
[21] The complainant testified about a downward spiral in her relationship with the accused D.G.. She testified that when he moved into her apartment the relationship was “amazing” and that she was “very happy”. The complainant indicated that over time this changed and that there were increasing arguments between the two of them, which they were both responsible for. The arguments progressed to the point when she and Mr. D.G. would throw items at each other. The complainant recalled an incident were Mr. D.G. threw an antique table across the room. She also recalled an incident where, out of anger, she threw a jar filled with marijuana at Mr. D.G.. It was the evidence of the complainant that these verbal arguments and acting out progressed to being physical. The complainant described being restrained by Mr. D.G.. “He would retrain me”, is how the complainant put it. The complainant remembers being restrained on the floor in the bedroom. The complainant testified that “I most likely pushed him – I don’t remember that”. The complainant recalls the accused on top of her against the wall with his hand on her chest. The complainant testified that she was trying to get away and said “let me go – get off of me”. The complainant remembers having one free hand and scratching Mr. D.G. on the back during this altercation. Mr. D.G.’ hand was hard on her chest and his weight was on her. She had bruises on her arm and her chest area.
[22] The complainant took cellphone pictures of the bruises on her chest area and a bruise on her left upper arm. The photographs were entered as Exhibit 1, A, B and C. The date and time of the photographs are July 25, 2016 at 3:55 pm. It was the evidence of the complainant that the bruise on her chest is where Mr. D.G.’ hand was holding her down. The complainant could not recall how she got the bruise on her left upper arm.
[23] Entered as Exhibit 2 is a text message between D.G. and the complainant, dated July 24, 2016 at 11:40 am. It was the evidence of the complainant that this text to her was sent after the above described bedroom incident. Mr. D.G.’ text to the complainant reads, in part, “fucking finally restrain you and you claim I beat you up you’re a piece of shit”.
[24] Although this incident led to a separation, the complainant and D.G. were back living together not long after this incident, likely within days. One might wonder why? The complainant answered this question by stating that “I loved him. He was amazing when he was amazing”.
[25] The complainant described another incident of violence which occurred in the bedroom occupied by the children of Mr. D.G.. She testified that the accused grabbed her and put her head into a wall. This was precipitated by an argument and the complainant pushing Mr D.G. when he was in her face. After being pushed into the wall, the complainant fell and when this occurred, the accused put his hand on the back of her neck. It is the evidence of the complainant that during this incident the accused stepped on her leg which left a large bruise. Entered as Exhibit 3 is a photograph that the complainant took on her cellphone depicting the bruise to her leg.
[26] The complainant cannot recall exactly when this incident occurred but believes it was within a week of the incident that occurred in the bedroom. After the incident, the complainant and D.G. broke up again although Mr D.G.’ property remained at the complainant’s apartment.
[27] It is obvious from the evidence that this pattern of breaking up and getting back together marked the relationship of the complainant and D.G.. Theirs was a volatile and tumultuous relationship. One only has to look at the text messages exchanged between them to see that. Entered as Exhibit 4 is a text message dated September 30th at 12:55 in which Mr. D.G. says to the complainant, “have fun dummie, if your there my hate is here”. Entered as Exhibit 5 is a text message dated October 7th at 10:49 pm in which Mr. D.G. says to the complainant “you’re a piece of shit and I hope you choke in your sleep. You will never be happy enjoy that bed you fuck I hate you”. Entered as Exhibit 6 is a series of text messages dated November 10, 11 and 12 in which Mr. D.G. calls the complainant a “dumb bitch” and “a fucking retard”, and tells her that he can’t stand her. Despite the tenor of these text messages there are certain messages which were sent in periods of time where the complainant is not sure whether she or the accused were together or separated.
[28] The complainant testified that on November 9, 2016 she sustained a serious head injury which included a fractured skull after a fall down a flight of stairs. The complainant cannot recall how this incident happened other than to know it was not connected to D.G. in any way. The complainant was hospitalized in Sudbury, Ontario and subsequently treated there. The complainant indicated in her evidence that she had ongoing difficulties as a result of her injuries including concussion symptoms, dizziness, headaches and short-term memory loss, which continued as of the date that she and D.G. permanently separated on March 14, 2017.
[29] As to the incident that led to the final separation, it was the evidence of the complainant that on the evening of March 13, 2017 she and Mr. D.G. were arguing because he had thrown away something belonging to her and that this had upset her. She recalls a “big screaming match” in her bedroom over that and that she was “very upset”. Mr. D.G. spent the night in a room away from the complainant. The complainant testified that the next morning, March 14, 2017, Mr. D.G. entered her bedroom, turned the light on and started to call her names like “dumb bitch”, “retarded” and “piece of shit”. He was upset about her car keys and wanted to take her car to work. Mr. D.G. went into the kitchen. The complainant testified that she followed him into the kitchen “to get him to stop yelling”. It was the evidence of the complainant that D.G. was in her face yelling at her so she pushed him. The complainant testified that the accused “restrained her on the ground” with his body on top of hers. After she got up the complainant pushed the accused again.
[30] The complainant testified that she recalls being on the ground, on her knees and on her stomach and the accused having his body on hers holding her down. The complainant testified that she remembers yelling at the accused loud enough for her neighbour to hear her (Bonnie Rickwood). The complainant testified that eventually the accused let her go at which point he hit her with a closed fist on the left side of her head above her ear. The complainant indicated that the pain “was horrible” as it was in the area where she had fractured her skull and was a sensitive area. The complainant testified that she was hit with such force that she fell to the ground. The complainant indicated that she screamed and said to the accused “I can’t believe you hit me”. It was the evidence of the complainant that it was at this point that her neighbour Bonnie Rickwood arrived at her door and removed her from the apartment. The complainant testified that when Ms. Rickwood arrived at her apartment she was in the same area as where the assaulted occurred – between the kitchen and the bedroom.
[31] The complainant testified that when she went to Bonnie Rickwood’s apartment she didn’t want the police involved. She did call 911, telling the dispatcher that her boyfriend had assaulted her and that she wanted him out of her apartment. It was the evidence of the complainant that she spoke to Officer Nowiski and told him that Mr. D.G. had hit her and that she wanted him out of her apartment. As to the written statement in Officer Nowiski’s notebook, the complainant testified that she didn’t read it but that it was not true and that she had lied about not being assaulted. The reason for this, the complainant indicated in her evidence in-chief was, “I didn’t want the police involved and to be sitting here right now [referring to court]. I didn’t want it”. The complainant testified that “I just wanted it to be over and D.G. out of my apartment”, all of which is why she told Officer Nowiski what she did.
[32] Apart from the physical altercations, the complainant gave evidence as to an incident of a sexual nature between herself and D.G.. She described tickling and play fighting with Mr. D.G. on the couch and wrestling with him on the floor. At one point Mr. D.G. put the complainant on her stomach and was holding her down saying, “So you want to play a game?” It was the evidence of the complainant that the accused pulled her tights part way down and had sexual intercourse with her from behind while she was face down on the couch. The complainant indicated that this was done without her consent and that she initially was fighting him and that she could not get away. The complainant testified that while D.G. was having sex with her she turned her head around and looked at him and said “are you serious now?” She testified that she made eye contact with Mr. D.G. but that he did not respond or stop but rather continued penetrating her until he ejaculated on her back. The complainant cannot say exactly when this incident occurred but she recalls that it happened prior to her head injury, which was on November 9, 2016. The complainant testified that she recalled another incident where Mr. D.G. had sexual relations with her without her consent but she could not provide much in the way of particulars about that incident.
[33] In addition to the text messages previously referred to in this decision, there are other text messages which the complainant points to as an acknowledgment by the accused that he assaulted her. Exhibit 7 is a text between the parties that is undated. In that text the accused comments, “I never wanted to lay hands on you” and repeats this again in the text. The complainant states, at one point, “I know it was my fault right”. In her evidence at trial this text refers to the last assault in March 2017. The complainant testified that her comment in the text was an indication that she felt she was provoking Mr. D.G. to hit her, although she also made it clear in her evidence that she did not want him to hit her and was not consenting to being hit.
[34] Entered as Exhibit 8 is another undated text between the complainant and the accused. The evidence of the complainant is that this text was written after she was assaulted in the bedroom and was held down by the accused, bruising her chest. In that text the accused states, “The scary thing is that I put hands on you” and further on in the text he states, “You should be free from my abuse”. The tenor of the text is that although the accused was with his previous partner Josee and had assaulted the complainant, the complainant wanted him back stating in the text, “I’m not Okay. You said you’d be here. I need you.” In her evidence at trial the complainant explained these comments by stating “regardless of anything that happened, I just wanted him to come home and not be with Josee.”
[35] Exhibit 8 ends with the accused stating:
Ya things were going well! You attacked me every night for the last week and then you tell my mom I beat you because I fucking held you down? Ya I was ruff but you need to keep your hands to your fucking self.
The complainant replies:
I pushed you D.G. and I didn’t tell your mom you beat me. I told your mom you held me down read the message.
Evidence of the Accused, D.G.
[36] The accused testified at trial. This brings the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, into play. The court must consider these principles when considering the evidence of the accused and whether the evidence convinces the court beyond a reasonable doubt of the guilt of the accused. In W.(D.), the Supreme Court of Canada stated at paragraph 28:
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury or the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[37] This formula of the court reinforces the principle that the Crown must prove the guilt of the accused beyond a reasonable doubt, which is a cornerstone in the criminal justice system in Canada.
[38] The accused confirmed the evidence of the complainant that his relationship with her started in the fall of 2015 and ended on March 14, 2017. He also gave similar evidence to that of the complainant that the relationship was positive at first but changed over the course of time. Their relationship had many “ups and downs”, as the accused put it and was checkered with break-ups and reconciliations. The accused testified that his former partner, Josee, was a source of irritant in his relationship with the complainant and the course of many of the arguments between them. It did not help matters that the accused slept with Josee during one of his break-ups with the complainant.
[39] The accused admitted that there was yelling, screaming and what he terms “verbal abuse” during the course of his relationship with the complainant. The accused also admitted that it went both ways, as he stated, “I gave it back as good as I got it”. The heated arguments led to physical contact and it was the evidence of the accused that he would be pushed by the complainant more than once. He estimated that this occurred five or six times. It was the evidence of the accused that he would normally walk away or leave the residence when he was pushed by the complainant. The accused admitted that there were two occasions when he was pushed by the complainant and he did not leave but rather responded.
[40] The accused testified that the first of these occurrences happened in July 2016. This is the incident which the pictures in Exhibit 1, A, B and C relate to. The accused indicated that he did not know how the argument started but there was an argument. He testified that he was pushed three times and after the third push he grabbed the complainant’s hands to restrain her. The complainant pulled away and fell to the ground. The accused held her on the ground in an effort to calm her down. His evidence was that he was overtop her and not on her. As to the bruise to her chest and arm, the accused postulated that maybe her hands were close to her chest. He indicated that he did not hit the complainant’s chest or pound her with his fist. The accused testified that he restrained the complainant on this occasion in order not to be pushed anymore. It was the evidence of the accused that the text message, entered as Exhibit 2, dated July 24, 2016 was after that incident and on page two he refers to “fucking finally restrain you”, which is what he did.
[41] The accused testified that the next incident where he restrained the complainant occurred on March 14, 2017, the day the police were called. It was the evidence of the accused the day previously he had the complainant’s car to run errands while she cared for his children. They argued throughout the night about it. The next morning the accused had to go to work and came into the complainant’s bedroom to ask for the car keys. That is when all hell broke loose. They began to argue and yell back and forth. The accused went into the kitchen and the complainant followed him and then gave him two or three “hard shoves to the chest”. The accused responded by grabbing her wrists and hands while the complainant was “freaking out” as the accused put it in his evidence. The complainant was “thrashing about” and fell to the ground and the accused continued to hold onto her wrists only letting go when she had calmed down. The accused testified he did not know what was going to happen in the “state of mind” the complainant was in, so he restrained her in this manner. It was the evidence of Mr. D.G. that by the time Bonnie Rickwood arrived at the apartment the complainant would have returned to the bedroom. This evidence is consistent with the evidence of Bonnie Rickwood but at odds with the evidence of the complainant.
[42] The accused testified that he does not know how the complainant received the bruise to her leg depicted in Exhibit 3 but he is certain that there was nothing he did to bruise the complainant in this way.
[43] In his evidence to the court, the accused acknowledged the seriousness of the complainant’s fall down the stairs. At the time this occurred they were on one of their off periods and the accused would have been at Josee’s home. The accused testified that he “did my best to be there for her” when she was ill and this is also the evidence given by the complainant, namely, that the accused was supportive at this period of time. The accused also confirms the evidence of the complainant as to the health difficulties she experienced as a result of the fall, including vertigo, balance problems and headaches. The accused described it as a “heavy head injury” and indicated in his evidence that the complainant was still in this condition when they separated in March 2017.
[44] The accused denied that he assaulted the complainant. His evidence was that on the two occasions he restrained her it was out of protection for himself and in self-defence. In particular, the accused categorically denied that he punched the complainant in the head. The accused testified that “The head injury was a bad one. If I had contact with her in the head she would have been in the hospital.”
[45] In his evidence to the court, the accused categorically denied that he sexually assaulted the complainant or that there was ever any non-consensual sexual activity between them. As he put it in his evidence, “There was no sexual assault whatsoever”. The accused testified that “nothing remotely” happened the way the complainant described it in her evidence as it pertained to the sexual activity between them.
[46] It is a fair assessment to make that the text messages entered as exhibits sent to the complainant by the accused are disturbing and abusive. These various text messages were put to the accused who did not deny sending them but indicated that he was upset at the time and did not mean what he said. In particular, the text message entered as Exhibit 6, written on November 10, 11 and 12, 2016 were written after an argument with the complainant at a time when the accused did not know the complainant had fallen down the stairs, was injured and was hospitalized. The accused testified that his reference to laying hands or putting hands on the complainant in Exhibits 7 and 8 was referring to the restraining of the complainant. The accused testified that his reference that “I should have more control when I’m being pushed” was a reference to him restraining the complainant.
[47] The accused also testified that the complainant would send him abusive texts as well referring to him as a “deadbeat” and a “piece of shit”. In my view, the fact that the complainant may have been equally as verbally abusive is no excuse for the type of messages that the accused sent to the complainant. Perhaps one might expect more contrition from the accused given the abusive nature of the texts sent by him.
The Charges in the Indictment
[48] With respect to the three counts in the indictment, in her submissions to the court, the Crown provided a helpful guide as to the incidents covered in each of the counts in the indictment. Count 1 is intended to cover the alleged multiple assaults with the exception of the March 14, 2017 incident which is covered in Count 2, as indicated by the specific wording in that count restricted to an event which occurred on or about March 14, 2017.
[49] Count 3 is the offence of sexual assault. Although the complainant testified as to two separate sexual assaults, I have set out in my decision only one incident. As to the second incident, the complainant admitted that she had little recollection of this and could provide little particulars. In her submissions to the court, the Crown conceded that it would be dangerous to convict the accused on the alleged second incident alone.
Analysis
[50] In reviewing the totality of the evidence and applying the principles of W.(D.), I find that there were two physical altercations between the accused and the complainant where physical force was used by the accused toward the complainant. One incident occurred in July 2016, and one incident occurred in the bedroom on March 14, 2017. With respect to the July 2016 incident, I find as a fact that the accused had physical contact with the complainant that constituted an assault. In his own evidence the accused readily admits to doing so. I accept the evidence of the complainant that this physical touching toward her was done without her consent. The photographic evidence in Exhibit 1A, B and C corroborate the complainant’s version of events as to the accused pinning her to the ground and obviously applying some degree of force to her chest area thereby resulting in bruising to her chest. I find as a fact that this occurred. Even on the evidence of the accused alone, the essential ingredients of assault contrary to section 266 of the Criminal Code of Canada are made out with respect to the incident in July 2016 and the charge in Count 1 of the indictment.
[51] With respect to the July 2016 incident, the accused claims that he had physical contact with the complainant in self-defence. As indicated in the jurisprudence, when this defence is raised the court must first consider whether there is “an air of reality” to the defence. As indicated in R. v. Binepal, 2016 ONSC 6500, at paragraph 20:
When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue: R. v. Cinous, [2002] 2 S.C.R. 843, 2002 SCC 29, at par. 54. The air of reality test is not a high burden: R. v. Elliot, 2016 ONSC 3227, at para. 62.
[52] If the court finds that there is an “air of reality” to self-defence then the onus falls upon the Crown to satisfy the court beyond a reasonable doubt that the accused was not acting in lawful self-defence. In deciding this issue the court must consider the factors set out in s. 34 of the Criminal Code of Canada.
[53] Having considered the totality of the evidence, I am satisfied that there is a sufficient “air of reality” to the self-defence argument for it to be considered by the court. The nature of the relationship of the complainant and accused must be considered by the court. It is a fair assessment that their relationship was volatile, argumentative and at times aggressive. Both the complainant and the accused described a relationship where there would be yelling, arguing and sometimes objects thrown at each other. The complainant and the accused were physical with each other. The complainant admitted to becoming angry and to pushing the accused in the chest area. I accept the evidence of the accused that during the course of their relationship this pushing occurred more than once and likely on five or six occasions. Given all of this, it is not surprising that the accused reacted. The nature of the accused’s reaction must be examined within the parameters of section 34 of the Criminal Code of Canada.
[54] Considering all of the evidence and the circumstances surrounding the events in the bedroom in July 2016, I am satisfied that the air of reality inquiry is satisfied and the defence of self-defence should be considered by this court with respect to the offences in Count 1 in the indictment.
[55] In considering the defence of self-defence, I have applied my mind to s. 34 of the Criminal Code of Canada and the principles set out in that section. It is worth repeating s. 34 in its entirety. Section 34 of the Criminal Code reads as follows:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. R.S., 1985, c. C-46, s. 34 1992, c. 1, s. 60(F) 2012, c. 9, s. 2
[56] On the facts of the case at bar, the consideration of the court in analyzing the self-defence argument is not predicated on accepting completely the version of events of the complainant or of the accused as it pertains to the incident in the bedroom in July 2016. There is a commonality to much of their evidence as to that event. The complainant testified that she “most likely” pushed the accused. The accused testified that he was pushed. The complainant testified that she was pushed to the ground and that the accused was on top of her and that his hand was hard on her chest. The accused testified that he grabbed the complainant’s hands to restrain her and that she pulled away and fell to the ground. The accused testified that he was overtop of the complainant although I accept the evidence of the complainant that he was on top of her and holding her down with his hands in her chest area, which explains the bruising depicted in the cellphone photographs entered as Exhibit 1A, B and C.
[57] The complainant describes the aforementioned action of the accused as an act of being restrained. In her evidence, the complainant referred to the fact that the accused “would restrain me”. The accused testified that he took the action he did after being pushed and that his actions were in the nature of restraint in order not to be pushed again, and in an effort to calm the complainant down. The text message between the parties after the incident refers to “finally fucking restrain you” (Exhibit 2). In her text message the complainant refers to telling the accused’s mother that “you held me down” (Exhibit 8).
[58] In applying the factors set out in section 34(1) of the Criminal Code, I am of the view that the accused’s actions were in response to force being used against him by the complainant, that he was protecting himself so he wouldn’t be pushed further, and in an effort to calm the complainant down and de-escalate the situation and that the response of the accused was reasonable in the circumstances. The actions of the accused were a proportionate response in the circumstances. With respect to the July 2016 incident, the accused did not strike the complainant when she was down, and eventually let her up. In my view, the response of the accused was proportionate to the situation that he found himself in and was not excessive or done out of anger but rather protection.
[59] In concluding that the actions of the accused were reasonable in the circumstances under section 34(1)(c) of the Criminal Code, I have considered the factors set out in section 34(2). Even on the evidence of the complainant, the actions of Mr. D.G. meet the standard of reasonableness and proportionality. In reviewing the totality of the evidence, I am not satisfied that the Crown has discharged its burden of proof and established beyond a reasonable doubt that the accused was not acting in lawful self-defence. Accordingly, Count 1 in the indictment is dismissed.
[60] With respect to the incident on March 14, 2017, by the accused’s own evidence, the offence of assault simpliciter, contrary to section 266 of the Criminal Code is made out. The accused testified that there was an argument, the complainant gave him two to three “hard shoves to the chest” and that he responded by grabbing her wrists and hands, the complainant falling to the floor and the accused continuing to restrain her until she had calmed down. The evidence of the complainant confirms that she pushed the accused, and that she was restrained on the ground by the accused, first on her knees, and then on her stomach with the accused’s body on hers, holding her down. The version of events of the complainant and the accused are not so dissimilar that an act of simple assault is established regardless of whose version of events I accept. The fact is that on either version the offence under section 266 is made out. The accused intentionally applied force to the complainant without her consent with the knowledge that the complainant was not consenting.
[61] Having reached this conclusion, the court must consider the defence of self-defence. I do not intend on repeating my earlier comments regarding the air of reality test. The comments earlier made about that test apply equally to the March 14, 2017 incident. The air of reality test must be considered against the background of the relationship of the parties. Theirs was a volatile relationship. The complainant would push the accused. With respect to the March 14, 2017 incident, the complainant followed the accused out of the bedroom. She could have easily stayed in the bedroom until matters had cooled down. Not only did the complainant followed the accused out of the bedroom, she pushed him when he was in her face yelling at her. This led to the complainant being restrained “on the ground with the accused’s body on top of her”. After she got up, the complainant pushed the accused again.
[62] In applying the test as set out in R. v. Cinous, I am satisfied that there is an air of reality to self-defence and a further inquiry should be made.
[63] In considering the defence of self-defence, I have applied my mind to section 34 of the Criminal Code. On the evidence before me, I conclude that the accused had reasonable grounds to believe that force was being used against him. I accept the evidence that the complainant left the bedroom and followed the accused into the kitchen area and gave the accused two or three “hard shoves to the chest”. I accept the evidence of the accused that he restrained the complainant because in the state of mind she was he didn’t know what was going to happen next or what the complainant was going to do. I accept that the actions of the accused were motivated by his desire to protect or defend himself. I also find that the acts of the accused were reasonable in the circumstances after considering the factors set out in section 34(2) of the Criminal Code. In my view, the response of the accused was not disproportionate or excessive. He restrained the complainant only for so long as was required to calm her down. While she was down on the ground the accused made no effort to do anything other than to restrain the complainant.
[64] In applying section 34 of the Criminal Code up to the time of the alleged punch to the face by the accused on the complainant, in other words, the response to the push and the restraining of the complainant, I find that the defence of self-defence has been established and I am not satisfied that the Crown has discharged its burden of proof and established beyond a reasonable doubt that the accused was not acting in lawful self-defence.
[65] It was the evidence of the complainant that the actions of the accused went beyond restraining her to the floor on the morning of March 14, 2017. It was the evidence of the complainant that after the accused let her go and she was up that the accused hit her with a closed fist on the left side of her head above her ear, causing her pain that “was horrible”, as the complainant put it. In his evidence the accused categorically denied hitting the complainant in the head. There would be no “air of reality” to any self-defence argument when it comes to the punch to the head. If I accept the evidence of the complainant, the accused is guilty of assault simpliciter and Count 2 in the indictment. If I accept the evidence of the accused or have a reasonable doubt about whether this incident occurred, the accused should be found not guilty pertaining to Count 2 in the indictment.
[66] In applying W.(D.), the evidence of the accused is capable of being accepted. I did not find any inconsistencies in the evidence of the accused or difficulties with his evidence that were so significant that it would cause me concern about his version of events. The accused gave his evidence in a straightforward manner, he was not evasive or argumentative even though difficult questions were put to him by the Crown and he accepted the obvious. Having said that, I did have concerns about the evidence that Officer Leeson gave about his interaction with the accused at the OPP detachment in Elliot Lake on March 20, 2017 where the accused acted aggressively and in an angered manner toward him. The obvious question that arises from this evidence is, if that is how the accused acts with a police officer in a police station, how is his anger manifested behind closed doors with the complainant? Quite frankly, this question caused me concern but I am satisfied that the accused’s actions at the police station can be explained by the situation he found himself in at the time, his upset over his relationship with the complainant and his upset over property which he felt belonged to him and was not being returned to him.
[67] I also had concerns about the accused’s attempt to minimize the abusive nature of the text messages which he sent and his responsibility for them. Although the accused did acknowledge the inappropriate and abusive nature of the text messages, he tried to defend them by taking the position that the complainant was sending similar messages to him. Even if that is true, it does not reduce the accused’s responsibility for the text messages he sent to the complainant. In my view, the text messages are an indicator of just how uncontrolled and unleashed the accused’s anger becomes at times.
[68] I have considered all of this in reflecting upon the evidence of the accused, but in considering the totality of all the evidence I am left at the second prong of the W.(D.) test that the testimony of the accused raises a reasonable doubt.
[69] I am not convinced with the certainty required in applying a test of beyond a reasonable doubt that the complainant was hit to the head by the accused on the morning of March 14, 2017. I reach that conclusion not only on the evidence of the accused, but on reflecting on the totality of the evidence, including the evidence of the complainant.
[70] There are serious questions raised about the credibility of the complainant and whether her evidence is to be believed. Constable Nowiski attended to speak to the complainant at Ms. Rickwood’s apartment on March 14, 2017 after a 911 call was placed. Constable Nowiski asked the complainant several times if an assault took place. Throughout her discussions with Constable Nowiski the complainant maintained that there were no assaults to her by D.G.. Constable Nowiski went so far to make a notebook entry that he testified he read back to the complainant and made her sign. The tenor of that notebook entry was that there were no assaults or threats made to her by D.G.. The complainant had earlier indicated to the 911 dispatcher that she had been assaulted. Additionally, in examination in-chief the complainant indicated that she had told Officer Nowiski that D.G. had hit her. That was not the evidence of Constable Nowiski. In a small space of time on the morning of March 14, 2017, we had two versions given by the complainant, one version that she was assaulted, one version that she was not assaulted.
[71] The explanation for these two versions given by the complainant was that she did not want the police involved and that she just wanted the accused out of her apartment. The fact is that the police were involved once she placed the 911 call. Once the police were talking to her, why just not tell them the truth? The complainant admitted that she had lied to Officer Nowiski. In examination in-chief, the complainant attempted to leave the impression with the court that she didn’t read the officer’s notebook entry. The evidence of the officer was that he read the notebook entry to the complainant so she would have had to have known what it stated. In cross-examination, the complainant accepted as fact that Constable Nowiski told her what was in his notes and that she signed it.
[72] During cross-examination the complainant gave several versions as to why she said what she did to the 911 dispatcher and to Officer Nowiski. One version was that she was upset and wanted D.G. out of her apartment. One version is that she lied to the officer when she thought she was at fault and that she could get charged with assault. One version is that she told the officer she was not assaulted after he told her it would be up to him if charges were laid and that it would be his decision if in fact she was assaulted. The complainant did not provide a consistent explanation as to why she told Officer Nowiski she was not assaulted. However, the fact remains that if her version of events is to be accepted that she was punched in the head by D.G., then the complainant lied to the police and misled the police during the initial stages of their investigation into the incident on the morning of March 14, 2017.
[73] It is also curious as to why the complainant did not ask for or seek medical attention if she was punched in the head by the accused on March 14, 2017. The complainant testified that she was hit with such force that she fell to the ground and was left in immediate pain. The hit was to the head in the same area as she sustained an injury during the fall down the stairs on November 9, 2016. The evidence is clear that the complainant was still expressing significant ongoing medical difficulties resulting from her fractured skull and concussion. I find it difficult to accept that the complainant would not have disclosed a hit to her head to Officer Nowiski and seek out immediate medical attention given her health concerns if in fact she was struck in the head by the accused as she related in her evidence to the court.
[74] The complainant testified that she screamed to the accused “I can’t believe that you hit me” just before Bonnie Rickwood arrived at the door of her apartment yet this statement is not one that is remembered or related to the court by Ms. Rickwood in her evidence.
[75] On the evidence before the court, I cannot find as a fact that the accused struck the complainant in the head on the morning of March 14, 2017. On the evidence and in the application of W.(D.), I am left with a reasonable doubt. As a result, the accused is acquitted of Count 2 in the indictment.
[76] With respect to Count 3, the charge of sexual assault, the same concerns about the credibility and reliability of the evidence of the complainant previously described in these reasons apply to this count as well. At the very highest, the court is left with being able to accept the evidence of the complainant and being able to accept the evidence of the accused. The accused was firm and adamant that he did not sexually assault the complainant; that there was no sexual activity between himself and the complainant without her consent. There is nothing in the evidence that shakes my confidence in this evidence of the accused or causes me to doubt it. On the totality of the evidence, I cannot find with the level of certainty required that the accused sexually assaulted the complainant. I am left in a reasonable doubt. Accordingly, the accused is acquitted of the charge of sexual assault, as set out in Count 3 of the indictment.
Gareau J.
Released: June 26, 2019
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.G. REASONS FOR JUDGMENT Gareau J.