COURT FILE NO.: CR-19-00009823-OOAP
DATE: 2021/01/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Ian Vandeloo
BEFORE: Mr. Justice G. E. Taylor
COUNSEL: Richard Litkowski, Counsel for the Appellant Simon McNaughton, Counsel for the Respondent
HEARD: December 8, 2020 by video conference
Appeal from the convictions entered by Justice A. Thomas McKay on September 10, 2019 and the sentence imposed on November 7, 2019.
ENDORSEMENT
Introduction
[1] The appellant was convicted of two counts of assault causing bodily harm, and one count of common assault involving his domestic partner and one count of disobeying a court order. The appellant was sentenced to 10 months in jail on one of the assaults causing bodily, 12 months’ consecutive on the other assault causing bodily harm, one month consecutive on the simple assault and 60 days concurrent on the breach of court order.
[2] The appellant appeals his convictions on all counts. If the appeal of all convictions is dismissed the appellant submits that one of the convictions for assault causing bodily harm should be reduced to simple assault and the sentence on that count should be reduced.
The Evidence at Trial
[3] The complainant testified that she and the appellant began a romantic relationship four or five years previously. The relationship lasted for approximately eight months. They resumed a relationship in June 2018 and began living together. They initially resided at 54 Pine Street and in September they moved to 172 Binscarth Road.
[4] The complainant testified that in July 2018, while living on Pine Street, she and the appellant began to argue. She was sitting on the bed. The appellant strangled her with his hands to the point where she became unconscious and urinated herself. She was not sure how long she was unconscious. When she regained consciousness, she had difficulty breathing. She recalled the appellant talking to her but she could not understand what he was saying. She was dizzy. Her chest was painful for a couple of hours. When she realized that she had urinated herself she ran to the bathroom to change clothes. She was unsure if there was any bruising to her neck. She did not recall the rest of the evening.
[5] The complainant remained in the residence because she wanted to resolve differences with the appellant. She thought it was her fault. She did not discuss the incident with the appellant because she did not want to make him angry.
[6] In cross-examination, the complainant testified that her throat was very sore and uncomfortable after the incident in July but she did not seek medical attention. She did not tell anyone about the incident until November 21, 2018.
[7] The complainant learned in October that she was pregnant. The pregnancy was not planned. There were concerns about the pregnancy because of the complainant’s diabetes.
[8] The complainant testified that she and the appellant had an argument on November 15, 2018. He followed her into a spare bedroom where he struck her on the back of the head with a fist or an open palm. She had a boil on the back of her head above her right ear. When the appellant struck her she dropped to the floor. Her head throbbed.
[9] After this incident the complainant stayed with her mother for one or two nights. She returned to the Binscarth residence on the basis of the appellant’s apology.
[10] On November 19, 2018, the complainant testified that she and the appellant were arguing. She was sitting on the couch in the living room. The appellant wanted to discuss issues regarding their relationship. He became upset that she was reviewing paperwork about alternate accommodation. He took the paperwork from her and threw it to the floor. The argument continued. The appellant put his hand on the complainant’s right shoulder. The complainant made a fist and the appellant threatened her. The appellant then put his left hand on her throat and squeezed. She managed to remove his hand from her throat. There was a lot of saliva in her mouth and she was gasping for air. Her chest was painful. She was coughing. She had difficulty swallowing, eating and drinking for a few days.
[11] The complainant and the appellant continued arguing. He took her cell phone and would not return it. During the course of the continued argument they fell onto the couch. The appellant landed on top of her and his knee struck her abdomen. The complainant wanted to go to the hospital but did not want the appellant to go with her. The appellant returned the cell phone to the complainant after she apologized. He then left the residence. The complainant locked and chained the door. She then took photographs of herself to show the hand marks on her neck.
[12] The complainant telephoned her mother to tell her what had happened. She planned to go to the hospital that evening but the complainant returned home with his mother. He unlocked the door with his key and broke the chain. The appellant stayed in the bedroom while the complainant and the appellant’s mother were together in the living room. The appellant’s mother spent the night.
[13] The following day the complainant’s mother took her to Grand River Hospital. She was treated in the emergency department. The doctor who she dealt with recommended that she make a report of the assault to the department at St. Mary’s Hospital which dealt with domestic abuse issues.
[14] A day or two after being treated at Grand River Hospital, the complainant attended at St. Mary’s Hospital.
[15] In cross-examination, the complainant testified that the bruises to her neck area lasted for about one week. She testified that the bruise above her left eye was sustained in the assault on November 15. She did not notice that bruise until it was pointed out to her by the nurse at St. Mary’s Hospital.
[16] In cross-examination, the complainant said that when the appellant took the papers from her hand he crumpled them before he threw them on the floor. She acknowledged that she failed to mention the crumpling of the papers when she gave a statement to a police officer on November 21, 2018 and in another statement she made at St. Mary’s Hospital on the same day.
[17] In cross-examination, the complainant denied telling the nurse at St. Mary’s that the appellant had taken her cell phone while his hands were on her neck. She testified that she lost her balance and the appellant’s knee accidentally hit her abdomen.
[18] In cross-examination, the complainant testified that after the appellant left the apartment, she took some time to calm down and have something to eat. She was preparing to go to the hospital when the appellant returned home with his mother. She acknowledged that she was not physically prevented from going to the hospital but she was afraid and felt trapped.
[19] The complainant disagreed with the suggestion made to her that she had fabricated the allegations that she had been assaulted by the appellant in order to obtain exclusive possession of the Binscarth apartment.
[20] The complainant’s mother testified that she received text messages from the complainant on November 15 and 19, 2018. On November 15, the text from the complainant said she was frightened. Her mother arranged for a taxi to pick up the complainant and bring her to her home. The complainant stayed with her mother for two or three days. On November 19 she received a text from the complainant saying she had been assaulted. Her mother instructed her to go to the hospital. The following afternoon the complainant’s mother took her to the hospital. She observed a bruise in the shape of a hand on the complainant’s neck.
[21] The sexual assault nurse examiner who dealt with the complainant on November 21, 2018 testified that there was an area on the right side of the complainant’s neck which was red and was tender to palpation. She observed a blue/black area at the right front of the complainant’s shoulder.
[22] The evidence also included an agreed statement of facts regarding the examination of the complainant by a physician at the Grand River Hospital on November 20, 2018. The physician noted linear bruises on both sides of the complainant’s neck and soft tissue injuries to her left rib area.
[23] The appellant did not testify and did not call any evidence.
Positions of the Parties
[24] The appellant submits that the trial judge erred in failing to give adequate reasons for convicting the appellant. The appellant also submits that the trial judge erred in finding that bodily harm had been established in relation to the assault of November 19, 2018. The appellant conceded at trial that if the assault in July in fact occurred, the loss of consciousness by strangulation amounted to bodily harm.
[25] If a new trial is not ordered and the appeal is successful with respect to the November 19 assault then the sentence for that count should be reduced to one of six months in jail.
[26] It is the position of the respondent that the trial judge did provide adequate reasons. With respect to the conviction for assault causing bodily harm on November 19, the respondent submits that the evidence at trial was sufficient to support a finding of bodily harm.
[27] If the appeal is allowed to the extent of substituting a conviction for common assault arising out of the November 19 incident, the respondent agrees that the sentence on that count should be reduced to six months in jail.
Discussion and Analysis
[28] The Supreme Court of Canada articulated in R. v. Shepherd, 2002 SCC 26, [2002] 1 S.C.R. 869 the requirement for trial judges to give meaningful reasons for their decisions. The purpose of reasons is to explain the result so that the losing party knows why he or she lost (para. 24). The reasons must be sufficient to permit meaningful appellate review (para. 28). The duty to give reasons arise out of the particular circumstances of the case. Where it is clear from the record why an accused has been convicted, the inadequacy of reasons will not interfere with meaningful appellate review (para 46).
[29] In Shepherd, the accused testified and denied the allegation. The reasons failed to explain why or how the trial judge rejected the denial of the accused accepted the testimony of his ex-girlfriend who had testified as a Crown witness. Similarly, in R. v. Dinardo, 2008 SCC 24, the accused testified and denied the allegations made against him by a mentally challenged complainant who had a history of not telling the truth. The Supreme Court held that it was incumbent on the trial judge to explain how he reconciled the complainant’s inconsistent testimony with the accused’s denial of the allegations against him (para 31).
[30] In R. v. Braich, 2002 SCC 27, the Supreme Court indicated that reasons will be adequate if they show that the trial judge addressed the issues raised by the defence. It is not necessary for the reasons to address all secondary or collateral circumstances which the accused said had a bearing on the main issue in the case (para. 25).
[31] In the present case, the issue was whether the trial judge was satisfied beyond a reasonable doubt, based on the evidence of the complainant, that the Crown had proven the guilt of the appellant on all three counts of assault. The present case was not one involving competing versions of the incidents in issue. The trial judge thoroughly reviewed the evidence.
[32] The trial judge was alive to the challenge to the complainant’s credibility. The trial judge found that the complainant gave her evidence in a forthright manner. In coming to that conclusion he noted that the complainant did not embellish her evidence and made reasonable concessions such as not accusing the appellant of intentionally striking her in the abdomen. He also pointed to the complainant being uncertain about when a bruise to her forehead was caused.
[33] In my view, the trial judge addressed the significant challenges to the complainant’s testimony during cross-examination. The trial judge considered the issue about whether the appellant took the papers the complainant was reading and threw them to the floor as the complainant testified in examination-in-chief or whether he crumpled them up before throwing them to the floor as she testified in cross-examination. The trial judge said he attached no significance to that apparent discrepancy.
[34] The trial judge said he accepted the complainant’s explanation as to why she did not go to the hospital following the assault on November 19 but waited until the following day. The trial judge addressed the challenge to the complainant’s credibility based on her description of the November 19 assault which she described as occurring while she was sitting on the couch. He said he did not find anything illogical about the explanation as to how the appellant was able to place his left hand on the complainant’s neck because she testified that she turned to face him before he placed his hand on her neck.
[35] The trial judge did not specifically advert to the submission that the complainant had fabricated the allegations of assault in order to obtain exclusive possession of the apartment occupied by her and the appellant. However, he did refer to her denial of that suggestion when it was put to her in cross-examination. This trial focussed on the credibility and reliability of the testimony of the complainant. I am satisfied that it would have been clear to the appellant that in accepting the testimony of the complainant, the trial judge necessarily found that she had not fabricated the allegations of assault in order to gain exclusive possession of the shared apartment.
[36] I am satisfied that the reasons in this case adequately address the substantive issues raised by the appellant at trial. In my view the reasons explain why the trial judge accepted the evidence of the complainant about being assaulted by the appellant.
[37] The second issue on appeal is whether there was satisfactory proof of bodily harm with respect to the November 19 assault. The complainant testified that as a result of the assault her chest was painful and she was coughing. She had difficulty swallowing, eating and drinking for a few days. The medical evidence which was admitted was that there were linear bruises to both sides of the complainant’s neck. The complainant’s mother observed a bruise in the shape of a hand on the complainant’s neck. The sexual assault nurse examiner testified that on November 21, there was an area on the right side of the complainant’s neck which was red and was tender to palpation.
[38] The Criminal Code defines bodily harm to be any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature (s. 2). Bodily harm need not be the standard of interfering in a great or substantial way with the physical integrity or well-being of the complainant, nor is a functional impairment necessary. Interference with comfort is sufficient to constitute bodily harm if it is more than trifling or transient (R. v. Duke, [2019] O.J. No. 6868 at para. 201).
[39] The trial judge concluded that the results of the strangulation on November 19 were not trifling. In my view this was a conclusion that was open to him on the evidence.
Conclusion
[40] For these reasons, the appeal against conviction is dismissed. It is not necessary to address the sentence appeal.
G.E. Taylor, J.
Date: January 11, 2021