COURT FILE NO.: CR 117/18
DATE: 2019September24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
Richard Jason Mitchell
Respondent
Ornawka, for the Crown
Kurt Wildman, for the Respondent
HEARD: September 9, 10, 11, 12, 13, 2019
The honourable R. John Harper
reasons for judgment
The Offence
[1] Richard Jason Mitchell (Mitchell) is charged with 2 counts of assault and two counts of mischief. It is alleged that these offences occurred on November 1, 2017 and November 2, 2017.
[2] It is alleged that the defendant assaulted the complainant, (Stewart) by putting his hands around her neck and squeezing to the point that she lost consciousness. In addition, on November 1, and 2 of 2017, the Mitchell broke Stewart’s digital keyboard, cell phone and air mattress.
The Background
[3] Stewart and Mitchell met in or about February 2017. According to Stewart, they were friends at first, however, they soon became boyfriend and girlfriend. In her testimony Stewart emotionally related the good times they had early in their relationship. She described it as “fun” and adventurous”. They would go camping and boating together and although they were both on Ontario Works, Stewart worked from time to time at a fast food restaurant and Mitchell did some landscaping. Stewart helped Mitchell with some of the landscaping. For a short period of time, they both lived together in a rooming house located at 66 Victoria Street in Brantford, Ontario. He was the tenant and his room was in the attic of that premises. Stewart moved in with him at the beginning of March 2017. When Stewart reported to OW that she had moved in with Mitchell, she was cut off from OW.
[4] On June 24, 2017 Stewart was in a serious motor vehicle accident. She was in hospital at either the Hamilton General or Brantford General until the first week in August 2017. At that point she returned to live with Mitchell in the attic room at 66 Victoria Street.
[5] Mitchell moved out of Victoria Street in or about the early part of October of 2017. He rented a room at a house on Wellington Street in Brantford. Stewart would stay with Mitchell at his Wellington Street residence from time to time and Mitchell would also stay over with Stewart in her attic apartment on Victoria Street, from time to time.
[6] According to Stewart, she was considering moving in with Mitchell on Wellington Street and had a meeting with his landlord who was also a reverend and pastor of a church. She stated that the pastor filled out the required form for OW in order for her to change her residence to Wellington Street, however, she stated that she changed her mind about moving in with Mitchell because of his behaviour toward her. She described their relationship as having ups and downs and was like a roller coaster.
The Injuries Stewart Sustained as a Result of the Motor Vehicle Accident
[7] According to Stewart, she was in a coma for approximately 7 to 9 days from the date of the accident. She has no memory of the accident. Stewart stated that the accident has ruined her life. She has also stated that she has a Traumatic Brain Injury and what she referred to as frontal lobe brain damage.
[8] Stewart gave evidence that all of the injuries she sustained in the accident impact on her ability to process questions and give answers to those questions. She describes it as having a rush of multiples thoughts coming into her mind all at the same time. It is a struggle and a challenge that is very frustrating for her to process all these thoughts and focus on the question. She describes her thought process challenges and her cognition being delayed. Stewart stated that she has a hard time understanding simple questions. When asked by the Crown if she understood her questions she said: “I am on the fence about that one”. She also stated that she would ask for clarification if she did not understand and if she needed a break.
[9] Ms. Stewart gave evidence that she works with an occupational and speech therapist as well as a social worker in order to help her with her challenges.
[10] She states that she has no long-term memory problems and her short-term memory is affected with respect to specific date, appointments and dealing with numbers. She can remember events such as having a doctor’s appointment, however, she is not able to recall the date and time unless she is given reminders and triggers that will allow her to remember.
[11] Stewart gave her testimony in a separate room by closed circuit TV (CCTV). I ruled, in a pretrial application, that she be allowed to give her testimony in this manner as it would facilitate the giving of her evidence. In that same ruling, I denied the request that her support worker from Victims Services be present in the same room as Stewart during her testimony. However, Ms. Stewart would be allowed to seek breaks if she needed time to process her thoughts and deal with any emotions she felt were limiting her ability to give her testimony. I also ruled that she could talk to her support worker in the breaks with the caveat that she was not permitted to talk about the evidence in this case.
[12] However, it became evident, during the course of her testimony, that Stewart was having a lot of difficulties regulating her emotions. She often stated that she did not understand the question and wanted it repeated. She became frustrated and very emotional at times during her testimony. From time to time, it was apparent that she was in obvious distress as a result of this frustration during these periods she would breath faster and lift her hands and arms to her head. At times she would cry and ask for a break and at other times, either defence counsel would ask her if she wanted a break or I would ask her.
[13] Stewart was also very emotional about certain topics she was testifying about. She required a break in her testimony when she was giving evidence about the good times she had in her relationship with Mitchell. She also became emotional when she talked about the more turbulent times in which they argued, yelled and became physical with each other.
[14] Having said that, Stewart was on the witness stand, in examination in chief, for a little over one half day and in cross examination for 2 full days. In addition, to a lunch break for 90 minutes each day of her testimony she would need breaks approximately every 40 to 45 minutes for about 15 minutes in order to regain her composure. Although this process lengthened to time to conduct the trial it was necessary in order to provide the best possible opportunity for Stewart to give her evidence under the circumstances.
The Events of November 1 and 2 of 2017
[15] Stewart stated that in or around October 26, 2017 her and Mr. Mitchell were trying to work things out between them. She stayed with him at his home on Wellington Street and they spent 2 or 3 days in a motel.
[16] In addition, Mitchell would go to Stewart’s attic apartment from time to time to place extension cords from her apartment to the floor below in order for Stewart to have power. There were constant power breaks at her attic apartment. On one occasion in or around the time that they were attempting to sort thing out, Mitchell was insisting that Stewart go with him in order for him to retrieve some of his extension cords.
[17] They argued about this and Stewart remembers only sitting on the sidewalk crying. According to her she was upset that Mitchell did not understand how serious her injuries were. On this occasion they did arrive at 66 Victoria and proceeded to the landing that leads up to the attic apartment. Stewart recalled in her cross examination that she took Mitchell’s glasses off his face and threw them down the stairs. At that point, she proceeded to enter the stair area to her attic apartment, and she latched the door from the inside.
[18] Mitchell demanded to be let in and when Stewart did not let him in, he forced his way in.
[19] The police photo of the broken latch area is consistent with Stewart’s version of the evidence in this regard.
[20] Mitchell stayed overnight with Ms. Stewart in her room in the attic at 66 Victoria on October 31, 2017. According to Ms. Stewart they argued frequently from the time they woke up on November 1 until the time Mr. Mitchell left the premises on November 2.
[21] Ms. Stewart stated that Mr. Mitchell was angry about two things. He complained that he did not like what she wore at times. As an example, he complained to her that he felt that it was not proper for her to go to the second floor of the rooming house to use the bathroom in her bathrobe.
[22] Ms. Stewart stated that they also argued about Mitchell wanting her to do things she could not physically due as a result of her being in constant pain from her injuries.
[23] According to Ms. Stewart, the most serious argument, however, was over the issue of Mr. Mitchell wanting Ms. Stewart to sign a piece of paper that amounted to what she described as lying to Ontario Works. According to her, he made up a written document that gave the clear impression that Mitchell was Ms. Stewart’s landlord. She refused to lie and stated that she did not want to lose everything by doing what he was asking her to do.
The Alleged Assault
[24] Stewart stated that Mitchell became angry when she would not sign the paper he wanted her to sign to give to OW. As he became irate his voice got progressively louder. According to her, she was calm but her voice also got louder as the argument continued. She stated that that they got to the point that we were yelling at each other. At that point she testified that:
He attacked me from behind and he had his hands around my neck and I remember waking up in a different position.
Strangulation 1
[25] Stewart referred to this incident as: “Strangulation 1”.
[26] On consent of the defence counsel, drawings that Stewart made at the preliminary hearing for what she referred to as “Strangulations, 1, 2, 3, and 4”, were made exhibits at the trial. Stewart was shown the drawings that she made while being asked to describe the alleged assaults.
[27] Stewart stated that on November 1, 2017 she could only recall that the sun was shining, and she was sitting at the top right corner of her bed. She was facing toward the stairs and during the argument Mitchell came up from behind her grabbed the back of the top she was wearing and pulled her down on to the bed. It was at that point that he got on top of her and started to “strangle her”. She demonstrated this by putting her hands on each side of her neck with thumbs on opposite sides of her neck. She stated that she did not know how to describe it as she did not see it, but she felt his hands around his neck. She then felt like she just collapsed and woke up in a different position.
Strangulation #2
[28] Once again, Stewart was shown the drawing she made at the preliminary hearing as she described the second incident. She stated that she was sitting on her bed after she woke up from the first strangulation when Mitchell asked her if she was going to call the police. She stated that she was thinking of what to do, however, she did not feel the police would do anything. According to her, the police did not do anything after the June 24, 2017 accident. Mitchell was the driver of the car that day and Stewart was being told by her family that he had run her over. The police did not lay any charges after their investigation.
[29] The argument over what Stewart referred to as the “false paper” he wanted her to sign, according to Stewart, Mitchell, once again came at her from behind and pulled her down onto the bed in a similar manner to the first incident. He then got on top of her with his knees holding her down at her thighs and he put his hands around her neck. His chest was near her chest and they were nose to nose.
[30] Stewart stated that she did not lose consciousness the second time. She also testified that shortly after the incident they had sex. She stated that she was confused and after they had sex they went to sleep.
Strangulation #3
[31] Stewart stated that Mitchell was angry in morning and this time the argument started about his disapproval at her going to the washroom at the rooming house only wearing a bathrobe. The argument, however, continued about the false paper and, at some point, Mitchell came at her from the front and not from behind. According to Stewart, Mitchell came right at her and placed his hands around her neck. However, this time, she put her arms up to protect herself and he did not get to place his hands directly on her neck. She stated that she had learned this as part of self defence and received “general education on what to do if your being strangled.
[32] Stewart stated that because she blocked his hands from going on her neck, she had the ability to scream. She wanted to make people in the house were aware of what was going on. She stated that she yelled out: “Richard needed to stop strangling me”. Although she felt that she was loud enough for people to hear her, no one came.
[33] Stewart described herself at the time of the alleged incidents as dealing with many injuries and living with daily pain. Mitchell was much larger and stronger then her. According to Stewart he was about 200 pounds, heavy set and in great shape.
Strangulation #4
[34] After continued arguments and Mitchell damaging her property (I will deal with in detail later), Stewart stated that Mitchell once again approached her in a face to face attack. He was really upset and he put his hands around her neck. Stewart stated that this: “pissed me off”. She wanted this to stop. She had a number of things rushing through her head.
He had run me over with a car and tried to strangle me 4 times. I did not want a 5th time to happen. No one was coming up to help me, so I was angry and I jumped on him and started to hit him. He was sitting on the bed beside me and I just pounced and started to hit him. He went into a fetal position and I started punching him in the head with my hands closed.
I punched him for running over me and for strangling me 4 times
[37] Stewart then went downstairs to the room of a person only referred to as Al. She stated that she used his phone to call the police and she stayed at Al’s until the police came. She told the police what happened, and the police called an ambulance and Stewart was taken to the hospital.
[38] While the police were still at the Victoria residence, Mitchell returned and he was arrested by the police and charged with assault and mischief.
[39] At the hospital she told them she was strangled but they did not take any tests and released her. While at the hospital, she gave a statement to the police that was written down by Constable Bain.
The Alleged Property Damages
[40] Stewart was not exactly sure when the specific incidents of property damage occurred. However, she stated that between the early morning of November 1, 2017, Mitchell damaged the following personal possessions of hers:
a. Her cellphone;
b. Her lap top computer;
c. Her digital piano keyboard;
d. Her air mattress that she used as a bed.
[41] According to Stewart, during the course of the arguments that spanned over the period between early morning hours of November 1, 2017 and the afternoon of November 2, 2017, Mitchell broke a number of her possessions. Immediately after Stewart had been hitting Mitchell on November 2,2017, Mitchell left the premises and Stewart went to Al’s to call the police. The police arrived very shortly after the call from Stewart. Constable Bain heard Stewart’s complaint and he went to Stewart’s apartment to observe it and the damaged possessions.
[42] Bain testified that he personally observed a number of items that were damaged. He saw a lap top that had been smashed, a cell phone and an air mattress. He contacted the forensic evidence section of Brantford Police Services and had someone from that section photograph the residence in the attic at 66 Victoria Street.
The Police Photographs of the Scene
[43] The photos taken soon after the police arrived were filed as exhibits. Among other things they depict the following:
a. An air mattress that had been deflated with one close up picture of what appears to be a puncture hole on the side of the mattress.
b. A digital key board that was broken as if it one quarter of the keyboard was snapped and pieces of the snapped off portion were laying on the floor away from the rest of the keyboard.
c. A cell phone that was bent so badly that it snapped and split almost in half.
d. Pictures of the door frame leading up to the attic apartment that showed damage to the frame at the point around the deadbolt lock.
e. The photos also show a liquid on the floor and a carton of iced tea laying sideways.
f. There were no police photos of a damaged laptop. Stewart testified that Mitchell had taken the laptop when he left that afternoon and prior to the police attending at the residence.
[44] The police photographer also attended at the police station after Mitchell’s arrest and took pictures of Mitchell’s hand that had a bandage on it when the police arrested him at 66 Victoria. One of the pictures shows a fresh cut on his skin in the web part of his hand between his thumb and pointer finger.
[45] I find that these photographs are a significant piece of corroborating evidence to the testimony of Stewart. They were taken immediately after the police had taken Stewart’s statement in Al’s room. She stated that she did not access the room between leaving it to call the police and the police observing the room. The evidence was that no one altered any of the possessions from the point of Stewart leaving the room to the point of the pictures being taken except for the police photographer stating that she moved the cell phone to change the angle of the picture in order to reveal how the cell phone was bent to the point of snapping.
Stewart’s Evidence of her Possessions Being Damaged by Mitchell
[46] Stewart testified that, although she could not recall the exact times in which Mitchell damaged her property, she did recall that some of the items were damaged by him between strangulation 1 and strangulation 3. She thought that he damaged her cell phone and mattress after strangulation 4.
The Mattress
[47] Stewart stated that he took out his keys and punched a bunch of holes in the mattress to deflate it. Defence counsel suggested to her in cross examination that the holes could have been made to the mattress when she took the mattress and lifted it in order to roll Mitchell off the mattress during the arguments.
[48] Stewart stated that when she did that she placed her fingers under the mattress with her thumbs to one side of the mattress and lifted it. She stated that she did have a ring on her finger however the ring she had could only snag something but not puncture it.
[49] I accept Stewart’s version of this event. Even if her ring could have done more than snag an object, her fingers were under the mattress and not in the position near where the photos show a puncture in the mattress. The photo is consistent with a puncture made with a key as described by Stewart.
The Keyboard
[50] She stated that Mitchell took the keyboard and smashed it over his knee and busted it in half. The police photo showed this keyboard broken in the manner that she described it happening. She stated that she did not move anything until the police finished their work. The keyboard and its pieces remained in the same position they were in when he smashed it.
[51] This testimony was not challenged.
The Cell Phone
[52] She stated that he grabbed her phone out of her hands and he snapped it in half. He bent it to the point that he destroyed it. This testimony was not challenged.
The Laptop
[53] Stewart testified that she recalls that during the night of November 1, 2017 she saw Mitchell pick up her lap top. She stated it was dark and she could not see but she heard a snap. He was just a few feet or just about 5 steps in front of her and she could see a shadowy outline and she could hear the lap top snap. Stewart stated in cross examination that she was confident the lap top was snapped and split in 2.
[54] Counsel for the defence suggested that her evidence in this regard was inconsistent with her evidence at the preliminary hearing. At that hearing she testified that she saw him snap the lap top over his knee. Stewart insisted that she was not inconsistent as she was so close to Mitchell at that time, she saw his shadowy outline and she heard the snapping over his knee. In the day light, she saw the results of those actions and that the actions she partially saw and fully heard. I do not feel that she was misrepresenting her evidence nor was she inconsistent as she related the core elements of what her senses told her at the time. I accept her evidence in this regard.
[55] Constable Bain testified that he observed a broken laptop when he arrived at the scene. He did not mention a broken digital keyboard. The police photos clearly show a broken keyboard but no laptop. The description given by Stewart of Mitchell taking, what she referred to as her laptop at a time when it was dark and she only saw his shadowy figure taking something and snapping it over his knee is consistent with him taking the keyboard and smashing it over his knee. Stewart saw the damaged items in the morning. She did not see her laptop, however she saw the smashed keyboard. I find that the description of the snapping over the knee and smashing the item in Mitchell’s hand during the night most likely was Mitchell smashing the keyboard. There are no photos of a damaged laptop.
[56] Constable Bain stated that he had only been employed with Brantford Police Services for a short period of time at the point in time that he was called to attend 66 Victoria. He described Stewart as very distraught. She gave a statement as to what had happened. He observed the scene and noted the state of her apartment and the items that were damaged. He did not interview any of the other residents in the building. He stated that with 2 more years of experience under his belt he would have done many things differently including interviewing other residents.
The Law and Analysis
[57] My task is to conduct a reasoned review of all of the evidence. The Crown must prove the essential elements of the case beyond a reasonable doubt. That burden remains throughout the trial, it never shifts to the accused.
[58] In this case a central issue that I must determine is the credibility and reliability of the evidence of the complainant. It is not in dispute that Stewart has a Traumatic Brain Injury that impacts her cognition and memory to varying degrees. That injury occurred as a result of a motor vehicle accident that occurred approximately four (4) months prior to the alleged assaults and mischief.
[59] Throughout the course of her testimony Stewart never attempted to minimize the impact of her TBI on her. She stated that she had great difficulty processing her thoughts. She described her challenge as having all thoughts flowing in at the same time and it takes her longer to sort through a question to focus on an answer. She finds this troubling and frustrating. However, on the totality of her evidence I find that her cognitive challenges to not cause me to have a concern about the core evidence in this case.
[60] Her evidence of what she calls strangulations is consistent and it was unshaken in cross examination. Her description of these four events meets all of the essential elements of assault. Mitchell touched Stewart by placing his hands around Stewart’s neck and during the first two incidents, he grabbed her by the back of her shirt and pulled her down onto the bed from her sitting position. I accept Stewart’s evidence that Mitchell approached her on incident 3 and 4 from the front and in the process of him attempting to place his hands around her neck she blocked the force of his hands moving toward her neck by lifting her arms up on each side of her head.
[61] I do not accept the suggestions of counsel for the defence that Stewart was motivated by such resentment and anger at Mitchell that she fabricated her testimony to get back at him. I find that she was angry and frustrated with her condition. I find that she was and still is angry with Mitchell because he was not understanding of the pain she had as a result of her injuries. She was and is angry with her physical condition and her frustrations over her constant pain, her feeling that no one has listened to her. However, her evidence with respect to the incidents of assaults are intertwined with her evidence of Mitchell’s anger and use of force to damage her door frame, laptop, digital piano keyboard and her mattress. Her testimony is corroborated in a significant manner by the police photos.
[62] Defence counsel submits that Stewart was inconsistent with respect to some of her evidence and this should cast doubt on her evidence as a whole.
[63] He submits that her trial testimony focused on the false paper Mitchell wanted her to sign and not his complaints to her about the clothes she wore. However, she did not mention the false paper argument to the police. I find that she did mention the complaints about clothing to both the police and in her evidence at trial. The fact that she did not tell the police about the main focus of the argument in her statement to them does not materially impact on her veracity or her reliability. Stewart made it clear in her evidence that her focus when talking to the police was on what she referred to as the “strangulations” and the property damage Mitchell caused.
[64] Counsel for the defence also submitted that Stewart omitted certain statements to the police and in her preliminary hearing testimony that should impact on her credibility and reliability. He sited as an example the fact that she did not mention to the police that she had punched Mitchell after the “4th strangulation”. Her explanation was that she did not feel that was relevant. She was telling the police about what he did to her.
[65] I find her explanation was reasonable given her challenges with focusing and most importantly, by the fact that she volunteered this evidence in cross examination. She was not hiding it and she was not asked about it by. She spontaneously testified to it when relating her evidence of the “4th strangulation”.
[66] In R. v. M.B 2018 ONCA 399, [2018 O.J. NO. 2386 the Ontario Court of Appeal stated at para 5:
[5] The trial judge carefully reviewed the complainant’s evidence and was alive to its frailties. The trial judge accepted the complainant’s explanation for her poor memory and found that it did not affect her credibility in relation to her core memory of he sexual assault.
[6] We do not read the trial judges use of the words “memory fragmentation” as a scientific term. Rather, he was summarizing the complainant’s own explanation for her inconsistent and sometimes incoherent memory of the relevant events which she attributed to her excessive alcohol consumption. It is no more than a finding, based on the evidence, that on both occasions when she described what happened, the complainant was unable to consistently access from her memory some of the details of what occurred on the night of the incident, because of her intoxication.
[67] The Ontario Court of Appeal further commented on a complainant who had difficulty remembering certain events and guessing to fill in the blanks in R. v. J.N., [2017] O.J. No. 2092 They stated in part at para.13:
…Moreover. Despite the latter acknowledgements, the complainant did not recant the October 2013 allegations and the core of his allegations in relation to which the trial judge convicted the appellant remained intact.
[68] I find that Stewart did have challenges focussing on answers as a result of her TBI. At times during her testimony she demonstrated by her actions and her statements that she had a rush of thought followed by frustration and emotion. After a break, she did focus on the question and that answer and she never waivered on the essential elements of the assaults.
[69] Her evidence was corroborated, in a significant way, by the police photos. The only way that the property of Stewart could have been damaged in the manner that is was had to have been by Mitchell. No one else was present during the relevant time period. There was no suggestion or any evidence to support any finding that Stewart could have caused that damage.
[70] I find that the evidence of the damage shown in the police photos and how that damage occurred is intertwined with the evidence given by Stewart of the assaults. The extent of the damaged cellphone, keyboard, and mattress shown in the photos demonstrate that they were damaged by someone who was strong and in a fit of rage. There are no photographs of the damaged laptop. However, Stewart testified that when Mitchell left the residence at 66 Victoria, shortly after the fourth incident of his placing his hands around her neck, he took the laptop with him.
[71] When he returned shortly after the police arrived, his hand was bandaged. The police photos show a cut that was between his thumb and finger in the middle of the webbing of that part of his hand. The cut is consistent with someone who was holding the cellphone and bending it to the point that it snapped. It is also consistent with someone who took the digital keyboard in his hands and snapped it over his knee to the point of splitting it and shattering the one end of the keyboard.
[72] Stewart testified that she feels terrible that she does not remember every detail of certain events put to her in cross examination. However, she added: “All I know is he strangled me 4 times and I don’t forget that.”
[73] The Ontario Court of Appeal in R. v. J.J.R.D., 2006 40088 (ON CA). In that case, the court commented on the circumstance where even though the trial judge reviewed certain flaws in the complainant’s testimony a review by the court of the totality of the evidence allowed for a proper conviction beyond a reasonable doubt. The court stated:
[53] The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[74] In this case the accused did not testify. I draw no inference whatsoever, from this. He is presumed innocent until proven guilty and that presumption stays until the completion of the trial and a decision is given.
[75] However, after a reasoned review and given my findings as set out above, I find Richard Jason Mitchell guilty on all counts.
The Honourable R. J. Harper
Released: September 24, 2019
COURT FILE NO.: CR 117/18
DATE: 2019September24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
Richard Jason Mitchell
Respondent
REASONS FOR JUDGMENT
The Honourable R. J. Harper
Released: September 24, 2019