Her Majesty the Queen v. P.R., 2020 ONSC 3792

COURT FILE NO.: CRIMJ(P) 1414/19 DATE: 2020-06-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN T. Sarantis, for the Crown

- and -

P.R. D. Locke, for the defence

HEARD: March 3, 4, 9, 10, 11, 12, 2020 at Brampton

REASONS FOR JUDGMENT

André J.

1On June 15, 2017, the Peel Regional Police Force (“PRPF”) received a complaint that P.R. had broken into a Mississauga residence, sexually assaulted a female occupant, and assaulted a male with a flashlight. The PRPF subsequently charged P.R. with break and enter and committing the offence of assault, sexual assault and assault with a weapon. P.R. testified that while inebriated, he entered what he believed at the time was his friend’s house but denied that he had sexually assaulted one of its occupants. He also maintained that he had struck the male occupant in self-defence.

SUMMARY OF THE TRIAL EVIDENCE

J.M.

2J.M., who lived in a two-bedroom home in Mississauga with his wife, son and daughter-in-law on June 15, 2017, testified that he was awakened by his daughter-in-law between 3:30 and 4:00 a.m. yelling “Jim, Jim”. He heard a male’s voice and went into the adjoining hall. He saw P.R. and his daughter-in-law exiting the latter’s bedroom. He testified that P.R. was “caught like in the wrong place at the wrong time”. He grabbed P.R. and held him against the wall with his arm against P.R.’s neck. He repeatedly asked: “Who the fuck is this?” He recalled being struck on the head by P.R. with a flashlight. A struggle then ensued. P.R. tried to push and get away, but J.M. tried to hold him. During the wrestling, P.R. kept yelling: “I’m only here to see a friend”.

3J.M. managed to pull up the male’s shirt to immobilize his hands. He grabbed the male’s pants and pushed him down a short flight of stairs. P.R. tried to come back up the stairs, but J.M. retrieved a hockey stick nearby and struck him with it several times on the head. P.R. then ran down the stairs and ran through the living room and out the back door but not before J.M. struck him multiple times with the hockey stick. Before fleeing, P.R. repeatedly said: “I’m here because of Craig’s List”.

4J.M. ran outside but returned to his residence to clothe himself. When he went back out, he saw P.R. trying to come through the gate into his backyard. He pushed and kicked P.R.. P.R. said he had returned to retrieve his keys. Two other males came and escorted P.R. to their house.

5J.M. did not smell alcohol on P.R.’s breath, but he testified that P.R. had a “crazed look” during the incident. He further testified that he believed that P.R. “was high on something”.

L.G.

6L.G., who was married to J.M., testified that while lying with her husband in her bed on June 15, 2017, she “sensed a flash of light” and then a second. She opened her eyes and saw someone crouched down at the bottom of her bed. She saw the person exit her room and close the door behind him. She then heard yelling and screaming in the hallway. Her husband had already left the room.

7She heard her daughter-in-law, Ms. C.L., yell: “Who are you. Get the fuck out”.

8After exiting her room, she saw her husband fighting P.R.. It appeared to her like a blur. She then called 911 after going back to her room. Her husband returned to the room, got dressed and left. She saw blood on the top of his head.

9Asked about the townhouses in the neighbourhood, L.G. replied: “They are all identical”. L.G. told the 911 operator that: “I think he is on drugs”. She also testified that her daughter-in-law later told everyone outside what had happened.

Constable Dustin Shaw

10Constable Dustin Shaw arrested P.R.. He formed the opinion that the accused was intoxicated. P.R. advised him that he consumed a bottle of vodka at a local bar and had mistakenly entered the home to return a flashlight he had earlier borrowed from his friend. Constable Shaw had P.R. walk backwards to his cruiser for officer safety.

Constable Stephanie Gorrill

11Cst. Stephanie Gorrill testified that P.R. repeatedly stated that he had gone into the wrong house. She adopted her testimony at a June 24, 2019 Discovery hearing that P.R. was “heavily intoxicated”.

Ms. C.L.

12Ms. C.L. testified that she had taken her sedatives for insomnia before going to bed. Her two-year-old son also slept in the room in his bed. She woke up to feel a hand touching her. She felt cool air on her buttocks. She felt a hand coming from underneath her thigh towards her crotch.

13She initially thought that it was her partner, who was supposed to be at work, touching her. She therefore asked: “What are you doing?” but got no response. She reached out to touch her tablet which gave a flash of light. The person crouched at the side of her bed towards the floor.

14She asked him: “What are you doing here?” She reached out and felt a baseball hat. She saw that it was off-white. She then realized that the person was not her partner. She pressed the tablet again and saw a flash of skin, with a darker colour. She thought it was her friend Dwayne. She then said: “What’s wrong with you? If that’s you, get out of here.” She got no response. The person was still crouched. The male stood up. Ms. C.L.’s hand went up his body. She touched his face and felt facial hair. She told him: “Excuse me, you are in the wrong room. I don’t know you. You’re not supposed to be here.” The male replied: “I’m from Craig’s List, I’m the one you asked to come. You told me you’d leave the door open. I am sitting.”

15She told him that she had never been on Craig’s List and that he had entered the wrong house. She ordered him to get out. She asked him to leave many times, but he did not. He kept moving towards her. He was not trying to get away.

16J.M. then entered the room and pushed P.R. against the wall inside the room. The two moved outside the room. They were tussling. P.R. produced a flashlight and began to strike J.M. with it. J.M. struck P.R. three times, but the strikes did not appear to have had any effect.

17“I was convinced he was on something,” Ms. C.L. testified. “His eyes were huge and wide,” she added.

18P.R. had on a t-shirt and tank top. One shoulder of the tank top was out.

19P.R. ended up on the landing of the steps leading to the upper level of the house. He then charged up the stairs towards her father-in-law. J.M. pulled P.R.’s jersey over his head. P.R. then removed his shirt and tumbled down the stairs. He again charged up the stairs and almost reached the top when J.M. repeatedly struck him with the hockey stick. Ms. C.L. also yanked a flashlight from P.R. and struck him repeatedly on the head. She then yanked keys from P.R. and threw them down the hallway.

20During the physical confrontation between J.M. and P.R., L.G. jumped onto J.M.’s back and shouted to him: “Leave him alone”, presumably because she thought he was fighting with her son.

21Ms. C.L. testified further that she saw P.R. turning left after he ran out of the house. He then ran back to her house and asked for his keys. She later saw police officers escorting P.R. out of a house. He was walking normally between two of them.

22For the first time that evening, Ms. C.L. got a good look at the male. She testified that she had seen him one month before while she was cleaning her jeep. She had felt that someone was watching her. The male had dark skin but she had not paid much attention to him then. He was seated in a car which was light in colour. This car was similar to P.R.’s car. Ms. C.L. was sure that P.R. had sexually assaulted her because he had been watching her a month before June 15, 2017.

23P.R. was wearing jeans and a belt during the assault. The belt was undone but was still looped into his pants. Ms. C.L. testified repeatedly that at no time did P.R. try to leave the house.

Mr. C.L.

24Mr. C.L. lived in one of the townhouses in the area where the incident took place. He testified that P.R. had been drinking at a local bar and had later come to his home to repay a $30 debt. P.R. had asked to borrow a flashlight. He promised to lend P.R. a cellphone. P.R. left his house but returned later drenched in blood. He tried to get P.R. to clean up himself. P.R. then said he had to get his keys and went outside. Mr. C.L. later saw P.R. speaking to a male. P.R. told the male he had entered the wrong house. Mr. C.L. then took P.R. back into his house. He later saw the police in his backyard. Mr. C.L. had no recollection of P.R. wearing a belt.

P.R.

25P.R. testified that prior to entering the house he had consumed most of the contents of a bottle of vodka at a local bar and had also smoked marijuana. After leaving the bar, he decided to go to Mr. C.L.’s house, which he had previously visited, to repay a debt. He had on a baseball cap but did not have a belt. He borrowed a flashlight from his friend and drove home some distance away. However, five minutes before reaching his home, he decided to drive back to Mr. C.L.’s home to return the flashlight. While trying to do so, he mistakenly went into the wrong house.

26He denied touching Ms. C.L. in the crotch area or telling her that he had come because of Craig’s List. He stated that he told her: “I’m here for [Mr. C.L.],” rather than Craig’s List.

27He denied seeing Ms. C.L. before or watching her. He denied having his pants undone or touching her.

28About his interaction with J.M., P.R. testified that he only struck J.M. after J.M. had twice punched him in the face. Only then did he strike him with the flashlight.

29P.R. denied that he did not want to leave. He only realized that he was in the wrong house when someone said: “Who the hell are you?” He testified that he repeatedly told the police that he had mistakenly entered J.M.’s home.

ANALYSIS

30I will address each charge against P.R. in the order in which they are alleged to have been committed. To that extent, I will address the charges in the following order:

a) Break and enter and committing the indictable offence of assault; b) Sexual assault; and c) Assault with a weapon.

Break and Enter and Committing the Indictable Offence of Assault

Position of the Crown

31The Crown submits that the evidence establishes beyond a reasonable doubt that P.R. intended to break and enter into the residence for the purpose of sexually assaulting Ms. C.L. who he had seen a month previously. He relies on the following evidence for this submission:

(1) The evidence that the layouts of Mr. C.L. and J.M.’s townhouses were different; (2) The fact that the backyards of the dwellings were different; (3) The fact that the makeshift cord door handle on the back door of J.M.’s townhouse was different from that of Mr. C.L.’s residence; (4) P.R.’s testimony under cross-examination that unlike his friend’s house, J.M.’s house was strewn with clothing even in the hallway; (5) The evidence that L.G. saw P.R. crouched down in her room; (6) Ms. C.L.’s testimony describing how P.R. intentionally moved his arm towards her crotch; (7) Ms. C.L.’s testimony that P.R. never tried to leave the residence even after being struck by J.M.; (8) P.R.’s use of a flashlight to navigate inside the subject townhouse; and (9) P.R.’s comment about Craig’s List.

Defence Position

32Mr. Locke submits that given P.R.’s inebriation, he mistakenly entered the residence to return Mr. C.L.’s flashlight. Mr. Locke submits that while the layout and condition of the interior of the houses in question may have been different, P.R. made a mistake given a) his inebriation, b) the time when the alleged offences occurred and c) the similarity of the townhouses in the area.

The Law

33In R. v. Shrivastava, 2018 ABQB 998, 82 Alta. L.R. (6th) 116, at para. 65, the court noted that:

Mistaken belief in consent is a particular expression of the defence of mistake of fact. Mistake of fact will exculpate when, because of an honestly held belief, the accused did not have the mens rea to commit a criminal act. The defence is merely a denial of mens rea; the accused bears no burden of proof: Ewanchuk, supra at para 44.

34In R. v. Gawel, [1984] S.J. No. 958, the Saskatchewan Court of Appeal held that mistake of fact could vitiate the necessary mens rea of committing the offence of break and enter.

35There is a legal distinction between the defence of self-induced intoxication and that of mistake of fact in relation to this charge against P.R.. In R. v. Quin, [1988] 2 S.C.R. 825, at p. 831, the majority held that the offence of breaking and entering and committing the indictable offence of assault causing bodily harm is an offence of general intent to which the defence of self-induced intoxication does not apply. Had the charge against P.R. been breaking and entering a place with intent to commit an indictable offence, the crime alleged would have been an offence of specific intent to which the defence of drunkenness would apply: see R. v. Quin (1983), 9 C.C.C. (3d) 94 (Ont. C.A.), at pp. 95-96; R. v. Skippen, [1970] 1 O.R. 689 (C.A.).

Application of the Law to the Facts

36The Crown is quite correct that the layout and condition of the interior of both townhouses were markedly different such that P.R. should have known that he was not entering Mr. C.L.’s residence.

37Additionally, Mr. C.L. had a dog which jumped on P.R. when he entered his friend’s residence and the absence of the dog when he entered the Mergler residence should have alerted him that he was not entering Mr. C.L.’s residence. Additionally, the makeshift door handle on the home he entered was markedly different from the door handle of Mr. C.L.’s residence.

38Undoubtedly, these differences would have been easily discernible to a sober individual in lighted conditions. This was clearly not the case here. All of the witnesses testified that P.R. was either intoxicated or under the influence of some substance. One witness testified that he had a crazed look. Even Ms. C.L. testified that she was convinced he was on something.

39Ms. C.L.’s evidence that P.R. told her that she had asked him to come on Craig’s List, if accepted, would constitute evidence that P.R. did not enter the home to return a flashlight. J.M. also testified to that effect.

40However, P.R. testified that what he said was he was returning to Curtis’s residence and that he had made no mention of Craig’s List. Ms. C.L. could well have misunderstood what he uttered to her. The fact that J.M. also testified that he heard P.R. refer to Craig’s List does not necessarily strengthen the Crown’s case given L.G.’s testimony that Ms. C.L. told them what happened while they were outside the residence. Ms. C.L. also testified under cross-examination that they discussed what they believed they had heard. To that extent, I cannot place much weight on that part of J.M.’s testimony.

41The Crown relies on Ms. C.L.’s evidence that even after P.R. was told that he was in a strange townhouse, he refused to leave the residence.

42I do not accept this evidence for the following reasons. It is directly contradicted by the evidence of J.M. who testified that P.R. tried to run away from the home and that he chased him out of the residence. Indeed, as I will discuss later, there are numerous inconsistencies between Ms. C.L.’s evidence and that of J.M. which raise many concerns about the reliability of Ms. C.L.’s evidence.

43There is other evidence which raises concerns in the court’s mind concerning whether P.R. had intentionally gone into the residence for some illegal purpose.

44After fleeing the residence, P.R. returned to it to retrieve the keys for his car. The Crown submits that this act reflects an effort by P.R. to remove all evidence from the house that would implicate him as the person who had been in the residence. However, the evidence could also support an inference that P.R. had entered the wrong house and was merely returning to retrieve his keys and had no difficulty doing this, even if he was revealing his identity in the process.

45The Crown also submits that P.R.’s explanation for returning to the townhouse complex is so preposterous that it should be given no weight. P.R. testified that after leaving Mr. C.L.’s residence, he drove from Mississauga to his home in Brampton, and within minutes from his destination, he decided to return to his friend’s home to return the flashlight.

46I agree with the Crown that P.R.’s explanation for doing so makes little sense. He testified that he returned to Mr. C.L.’s home because he did not wish to be confronted by his mother about driving while inebriated. I find it difficult to believe P.R.’s testimony because one would have expected that while intoxicated, he would not have driven what is a long distance merely to return a flashlight which he could easily have returned the next day. That said, Mr. C.L. told the police, before P.R. had spoken to them, that he had loaned P.R. a flashlight and had identified the flashlight left at the home of J.M. as having been similar to the one loaned to P.R..

47To that extent, even if I disbelieve P.R.’s testimony regarding why he returned to the townhouse complex, I am unable to conclude that it cannot reasonably be true.

48Finally, P.R. told Mr. C.L., the police and even Ms. C.L. that he had mistakenly entered the house. The Crown did not dispute the admissibility of these utterances. I find that, along with other areas of evidence which I have discussed, I have a reasonable doubt that P.R. intentionally broke and entered the residence in question. To that extent, he is acquitted of this charge.

Sexual Assault

49The Crown relies on Ms. C.L.’s testimony that P.R. sexually assaulted her in her room while she slept. Ms. C.L., in turn, relies on the following evidence that P.R. sexually assaulted her:

(1) His hand moved from her outer thigh towards her crotch. (2) One of P.R.’s shoulders was outside of his shirt. (3) P.R.’s belt was loosened. (4) P.R. did not attempt to leave the house. (5) P.R. told her that he was there because of Craig’s List. (6) P.R. was watching her one month before the alleged sexual assault.

50Ms. C.L. was adamant that P.R. had intentionally moved his hand from her outer thigh to her inner thigh in the vicinity of her crotch. She testified that what she felt was not merely P.R.’s hand “grazing” against her thigh; his actions were deliberate. However, Ms. C.L. testified at the Discovery hearing that “the first thing I felt was a graze coming to my inner thigh”. Second, Ms. C.L.’s bedroom was quite dark thereby limiting visibility. The sources of light included two slivers of light at either side of the blind in the room. Ms. C.L. testified that there was additional light from her tablet. She could not recall seeing any light from P.R.’s flashlight but conceded that she told the police that she had seen flashes of light which may have come from the flashlight. Ms. C.L. also testified that she had taken sedatives that night because of insomnia and that may well have affected her perception that night.

51Additionally, Ms. C.L.’s unflinching belief that P.R. had been watching her a month earlier may well have partly shaped her evidence that P.R. had intentionally moved his hand towards her crotch. She believed so despite her vague description of the male as having dark skin and her evidence that she had not paid much attention to him. Additionally, she testified that the colour of the male’s car was very similar to that of P.R.; however, she gave two prior statements that the car was not a hatchback, unlike P.R.’s car.

52Additionally, there were numerous inconsistencies between Ms. C.L.’s testimony and that of J.M.. These include:

(1) Ms. C.L. testified that J.M. held P.R. against the wall in her bedroom while J.M. testified that this happened in the hallway. (2) Ms. C.L. repeatedly testified that P.R. never tried to leave the residence. J.M., on the other hand, testified that he tried to get away from the house. (3) Ms. C.L. testified that P.R. charged back up the stairs and reached the top. J.M. testified that after he shoved P.R. down the stairs, P.R. did not come back up. (4) Ms. C.L. testified that L.G. jumped on J.M.’s back during his physical confrontation with P.R.. Neither J.M. nor his wife made any mention of this. (5) Ms. C.L. testified that P.R. had removed one of his shoulders from his shirt and had unloosened his belt, presumably to further assault her sexually. None of the officers or Mr. C.L. recall seeing P.R. wearing a belt that evening. (6) Ms. C.L. testified that she saw P.R. walking normally while accompanied by two officers. However, one officer testified that for safety reasons, they had P.R. walk backwards rather than forwards. (7) Ms. C.L. testified that P.R. ran to the left after he exited their property while J.M. testified that he ran to the right.

53Individually, these discrepancies may not amount to anything. Collectively however, they raise some doubt concerning whether P.R. had sexually assaulted Ms. C.L. in the manner she described.

54This doubt must be resolved in P.R.’s favour. Accordingly, he is acquitted of this charge.

Assault with a Weapon

55The Crown submits that P.R. repeatedly struck J.M. with his flashlight while being held up against the wall. The defence contends that P.R. did so in self-defence after being repeatedly punched by J.M..

The Law

56Section 34(1) and (2) of the Criminal Code provide:

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.

57Section 34(1) sets out the basis upon which an accused can exculpate himself or herself if intentional force is applied to another person. In this case, P.R.’s counsel contends that the force applied by P.R. was done for the purpose of defending or protecting himself from J.M.’s use of force against him and that the force he applied was, pursuant to s. 34(1)(e), reasonable in the circumstances. The inquiry under s. 34(1)(b) is a subjective one while that under s. 34(2) blends both objective and subjective considerations: see R. v. Khill, 2020 ONCA 151, 60 C.R. (7th) 233, at paras. 54, 57.

58However, in this case, P.R.’s actions must be considered within the context of a homeowner’s right to use reasonable force to protect the sanctity of his home. A person has the right to defend his or her property: R. v. Clark, 1983 ABCA 65, 5 C.C.C. (3d) 264, at para. 31. Indeed, s. 35(1)(c) of the Code provides that a person is not guilty of an offence if the act that constitutes the offence is committed for the purpose of either preventing the other person from entering the property or removing that person from the property.

Application of the Law to the Facts

59P.R. testified that he entered the property believing that it was Mr. C.L.’s residence. By the time J.M. held him up against the wall, P.R. knew that he had entered a stranger’s home. J.M. testified under cross-examination that he could not recall if P.R. hit him first or if he hit P.R. first. Even if J.M. had struck the first blow, he was entitled to use reasonable force to remove P.R. from his property. P.R. had no right to repeatedly strike J.M. over the head with the flashlight. He could have tried to push and shove J.M. away to leave the house rather than use a weapon to strike the homeowner.

60In my view, P.R. assaulted J.M. with a weapon when he struck him with the flashlight. I find that the Crown has proven beyond a reasonable doubt P.R.’s guilt of the offence of assault with a weapon.

CONCLUSION

61P.R. is acquitted of counts 1 and 3 on the indictment but is convicted on count number 2.

62P.R. is remanded, out of custody, to September 17, 2020 at 9:30 a.m. before me for sentencing.

André J. Released: June 17, 2020