COURT FILE NO.: CR-19-1575-00
DATE: 20211208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D. B.
Daniel Galluzzo, for the Crown
Shauna Pemberton, for the Accused
HEARD: October 5, 6 and 7, 2021
REASONS FOR JUDGMENT
F. Dawson J.
[1] On February 26, 2017 D.B. and his wife F.G. became involved in an argument which led to a physical confrontation. As a result, Mr. B. is charged with assaulting Ms. G. contrary to s. 266 of the Criminal Code and with uttering threats to cause bodily harm to her, contrary to s. 264.1(1)(a) of the Criminal Code. When the police subsequently interviewed Ms. G. she advised them that in June 2016 Mr. B. had sexual intercourse with her without her consent. As a result, Mr. B. is also charged with sexual assault contrary to s. 271 of the Criminal Code.
[2] There are significant conflicts between the evidence of the complainant and the accused in relation to these allegations. The events of February 26, 2017 were witnessed by the couple’s son, D.G. He testified and, in part, supported his mother’s version of what occurred on February 26, 2017. The only other witness was S.B., the accused’s daughter from a prior relationship. Her evidence is of little assistance in determining what occurred on February 26, 2017.
[3] For the reasons which follow, I find the accused guilty of assault and of uttering threats to the complainant on February 26, 2017 as charged in counts 1 and 2 of the indictment. However, I find him not guilty of the sexual assault charged in count 3 of the indictment.
[4] In summary, I conclude that neither the complainant nor the accused are completely credible or reliable witnesses. They were living separate and apart within the same home and tensions had been running high between them. The accused had a relationship with another woman named T. The complainant believed that relationship started before she decided to separate from the accused, apparently for other reasons. She was hurt and bitter about that. The couple were also involved in family law proceedings in the Superior Court which included claims in relation to the matrimonial home. The accused had slowed those proceedings and remained in the home. Both the complainant and the accused gave testimony which was, in parts, inconsistent with their prior statements.
[5] Having seen and heard the witnesses, and after considering all of the evidence, I am of the view that it would be dangerous for me to rely on the evidence of the complainant unless it is confirmed or supported in some way by other evidence. In relation to the events of February 26, 2017 I find that support in the evidence of the couple’s son D. and in the evidence of the accused. Regarding the sexual assault, I understand that there is no legal requirement for confirming or supporting evidence. However, due to my concern related to the complainant’s bitterness, and having regard to the accused’s denials and the lack of any confirmatory or supporting evidence, I find I am left in a state of reasonable doubt in relation to the sexual assault charged in count 3.
The Evidence in More Detail
[6] The complainant and the accused were together as a couple for 20 years. They married on July 30, 2011. They have four children together. In addition, each has a child from a prior relationship. Their four children and the accused’s daughter S., also known as A., lived in the matrimonial home.
[7] In May 2016 the complainant sent a letter to the accused advising him that she wanted to separate from him. The reasons for this decision are not established clearly in evidence. At that time the complainant worked days and the accused worked nights. They were home together on the weekend. After the separation each slept in the master bedroom during the week because the other was at work when they were home. On the weekend, when they were both at home, the complainant slept in their son D.’s room.
[8] The accused testified that after he received the separation letter he tried to reconcile but the complainant did not want to. I have no reason to reject the accused’s evidence on this point.
[9] The accused testified that sometime after receiving the separation letter he developed an intimate relationship with a woman named T., whom he met at a best friend’s wedding. Although the complainant did not link her decision to separate from the accused to T. during her evidence, the accused testified that prior to February 2016 the complainant believed his relationship with T. had started before their separation.
[10] The complainant testified that she did not remember when she found out about T. However, she said that she was hurt and disheartened by the accused’s relationship with T. Given that it was the complainant’s decision to separate, it is difficult to see why this would be so unless she believed that the relationship between the accused and T. had been going on prior to the couple’s separation.
[11] The complainant also testified that she was upset by her belief that T. had spoken to her son D. about Christmas presents. D. testified that he had never spoken to T. He confirmed, however, that his mother was generally angry and upset about T. He also said that it was upsetting to him that his father left his mother for T. This impression must have been conveyed to him by his mother. He testified that he was shocked when he heard his mother say that his father spent money on T. but not on his own children. This further supports my conclusion that the complainant was angry and bitter towards the accused for this reason.
The Allegations Related to February 26, 2017
[12] The couple’s oldest daughter, V., had a basketball tournament on Sunday, February 26, 2017. The complainant testified that she left the family home in the morning with the couple’s four children to attend the tournament. She said she left the accused’s daughter, A., at home because A. was still sleeping.
[13] The complainant testified that she and the children left the basketball tournament to return home at around 4:00 or 4:30 p.m. She said they arrived home between 5:00 and 6:00 p.m.
[14] It is common ground that the accused called the complainant on her cell phone as she was driving home. The accused asked why A. had not been included in the trip to the basketball tournament. He was annoyed. A. testified that she had lived in the home for several years and was close to the couple’s oldest daughter, V. However, she said that after the complainant decided to separate from her father the complainant marginalized her and left her out of family events. The annoyance the accused exhibited during this phone call was the first irritant that arose that day.
[15] The accused was also annoyed by the fact that he found a sweater or hooded sweatshirt in the garbage that day. The sweater belonged to the complainant, but she had previously thrown it out. The accused testified that he had earlier retrieved the sweater from the garbage and washed it so he could use it to stay warm at work. He explained that he had purchased winter clothing for the children and did not have enough money left to replace his worn out winter jacket. He testified that he was using the heavy hooded sweater to help him stay warm on the loading dock where he worked. He was upset that the complainant threw out the sweater a second time.
[16] The complainant testified that when she and the children arrived home the accused met them at the door. She said the accused began to confront her about the sweater. In cross-examination the complainant denied that the accused told her he had used the sweater at work. However, she agreed that she was annoyed that the accused had removed the sweater from the garbage and added that she did not want the accused using anything of hers. This again reflects the complainant’s bitterness towards the accused.
[17] It is common ground that the accused and complainant argued about the sweater. They also argued about A. not being taken to the basketball tournament and about $40 the accused owed the complainant. The complainant and the accused agree that the complainant went upstairs to the bedroom area to change and get a blanket before going downstairs to the living room to watch television. The accused agreed that he followed her upstairs and that the argument continued. D. confirmed that he and his two younger sisters could hear their parents arguing. D. and his sisters were in his upstairs bedroom where D. had gone to play video games. D. testified that the arguing was about a sweater and other topics.
[18] The complainant testified that she threw her blanket over a balcony railing and brushed past the accused as she headed downstairs to the living room. She said he followed her. The arguing continued. She testified that she was not upset about the sweater but that she wanted the accused to get out of her face.
[19] Once the pair was downstairs a physical altercation ensued. As things became heated D. and the two younger children came out of D.’s bedroom. D. said he could clearly see what was going on in the living room from his vantage point at the railing on the second floor as that area overlooked the living room. The house is described as a split-level home.
[20] There are three version of events: one from the accused, one from the complainant and one from D. D.’s version is closer to the complainant’s version than to the accused’s version. On any of the three versions, including that of the accused, the complainant was assaulted by the accused.
[21] I start with the accused’s version of events. He testified that once they were downstairs the complainant was loud and was swearing at him about the sweater and the $40 that he owed to her. He testified that as they were facing each other he put his arms around the complainant in a bear hug, pinning her arms to her sides. He said he did this to calm her down. He said his head was in her shoulder area and he was telling her to calm down and saying that he would pay her the money that he owed to her. He said he had no intention to hurt her, only to calm her.
[22] I observe that on this version there was clearly an unjustified application of force to the complainant to which she did not consent.
[23] According to the accused, the complainant was able to turn around within his grasp so that her back was towards him. He said that she then bit him on the hand, and he let her go. He said she then pushed him onto the couch, jumped on top of him and began to strike him. He testified that she was yelling at him and he was telling her to get off him.
[24] The accused testified that when the complainant finally got off him things calmed down and he left to go to the kitchen, one level down. He testified the complainant said that his son had bigger balls than he did. In response he called her a bitch. At that point he said the complainant jumped up and grabbed his hair so hard that she pulled two of his dreadlocks out of his head. The accused agreed in cross-examination that he told the police the complainant pulled his hair during the physical struggle. He said that was true, but that it was later when she pulled his dreadlocks out of his head. It is an agreed fact that the police found two four-inch-long dreadlocks on the floor. These were not hair extensions. They were natural hair that was pulled out of the accused’s head by the roots. The accused said at that point he went to the bathroom to inspect the injury to his scalp. Just after that the police arrived.
[25] The accused denied that he placed the complainant in a headlock or that he threatened to break her neck.
[26] The complainant’s version is quite different. She testified that she went to the living room to watch her TV show. She told the accused to get out of her face. She said the accused then put her in a headlock by placing his right arm behind her neck and his left arm beneath her throat. She said the accused was to her left side and that she was in the headlock for about 10 seconds. She said she had trouble breathing because she was recovering from a collapsed lung. She testified that the accused threatened her at this time by saying that he would place her in a “sleeper hold” and “break her fucking neck”. She said that she either pulled his hair or bit him and he let her go. She said she then pushed the accused into a chair, got on top of him and began to hit him. She testified that the accused then got up, pushed her, placed his right hand around her throat and pinned her against the wall. While pinned in that position she said she reached out to her cell phone. She testified that she had 911 programmed into the first position on her speed dial and the police non-emergency number programmed into the second position on her speed dial. She said she selected the non-emergency number and placed her cell phone on a ledge. She said she did not speak to the police but that the police soon arrived at the home. She said the accused did not loosen his grasp on her throat until the police officers rang the doorbell.
[27] During her testimony the complainant added certain embellishments which seemed to me to reflect her animosity towards the accused. At one point in her narrative she added that the accused had married her and was supposed to protect her. At another point during her narrative she added, “I thought he’d have some compassion for the mother of his children.” In relation to the sweater, she denied yelling at the accused, “Bitch, it’s mine, get out of my face.” However, she acknowledged during cross-examination that she said that in her written police statement.
[28] The complainant claimed she had no recollection of pulling the accused’s hair out of his head. However, she was cross-examined on her written police statement where she stated that she pulled so hard on his hair that his dreadlocks came out into her hands. It seems to me that it would be very difficult to forget this.
[29] The complainant agreed that she told the accused that his son had bigger balls than he did.
[30] The complainant was also cross-examined about the family law proceedings she had commenced. She agreed that in an affidavit in those proceedings she swore that she had sustained permanent eye damage because of the assault. No such injury was described during her trial testimony. The police did not see any injuries to the complainant.
[31] D. George-Brown was 17 years old when he testified. He said he was 12 years old when he made his observations on February 26, 2017. He gave a statement to the police on April 10, 2017. That statement was video recorded and admitted as part of D.’s evidence at trial pursuant to s. 715.1 of the Criminal Code.
[32] After the accused was arrested on February 26, 2017, he no longer lived in the family home. The accused testified that he now has court ordered access to his children and so there is a continuing relationship between father and son.
[33] D. testified that he has continued to live with his mother. He agreed that his relationship with his mother is closer than that with his father. However, he appeared, overall, to take a very fair approach when describing the discord between his parents.
[34] D. testified that he recalled the argument between his parents as starting about 20 minutes after the family returned home from the basketball tournament. He was not sure who started the argument. He thought it was probably his father. He heard arguing about a sweater. He was in his bedroom with his younger sisters playing video games. His bedroom door was open.
[35] D. testified that his parents were shouting “a bit” but they were not as loud as in other arguments he had heard. In cross-examination he testified that after the argument had gone on for a while, he heard what sounded like a slap. He then heard his mother yell, “Don’t put your hands on me.” At that point D. said he went out to the railing. He could see into the living room, which was one level down.
[36] While D. did not give his evidence in a completely orderly fashion, he did indicate the following during his testimony, including his s. 715.1 video. He said he saw his father and mother facing each other. He said he saw his father push his mother in the face once and hit his mother on her left arm once. He did not know if his father used an open or closed hand. He said his mother then hit his father. This was followed by his father pushing his mother onto the couch.
[37] D. testified that his mother got up and that his parents continued arguing. After being referred to his police statement, D. added that his father pulled his mother off the couch by her arm and put her in a headlock. He testified that he then heard his father say that he would put his mother in a sleeper hold and break her neck. His mother was in the headlock for about 30 seconds. He said his mother then bit his father’s hand. At that point D. said he threw a slipper at his father.
[38] D. also testified that he saw his mother use her cell phone to call the police. He said his mother was standing in front of the couch when she made the call. She then placed her phone on a ledge. He did not confirm his mother’s testimony that she was pinned to the wall by her throat when she made the call or that she was held in that position until the police arrived.
[39] In his s.715.1 video D. said that his mother brought T. up during the arguing and told his father that he should get T. to buy him a sweater. I observe that the complainant denied this when she was cross-examined.
[40] Significantly, D. testified in cross-examination that he did not think he saw his mother pulling his father’s hair. He said he would have seen it if it had happened. Given that the accused’s dreadlocks were pulled out by the roots, this tends to support the accused’s version that his hair was pulled out of his head as he was walking away to go downstairs to the kitchen after the original altercation was over. D. said he could not see down to the kitchen.
[41] In cross-examination D. testified that it was not possible that his father was leaning in towards his mother to hug her. He was sure his father applied a headlock and made a threat. He recalled that at some point his father left to go towards the kitchen one level down. He also recalled that earlier in the confrontation, after his mother hit his father, his father called his mother fat and ugly.
[42] D. was cross-examined extensively about the closeness of his relationship with his mother, about any discussions he had with his mother concerning these events and about his mother telling him that his father spent money on T. rather than his own children. I have taken all of this into account in assessing D.’s credibility. While D. was only 12 when he made his observations and his recollection is fading, I formed the impression he was doing his best to give a full account of his observations. The video recording of his police interview admitted pursuant to s. 715.1 was made when his memory was fresher. Unlike his parents, he was fair and balanced in his testimony. Based on my observations of D., the content of his evidence and the manner in which he gave it, I conclude he was doing his best to give an objective and unbiased account of the events in question.
[43] I conclude the accused is guilty of assaulting and threatening the complainant as charged in counts 1 and 2 of the indictment. I do not accept his testimony that he only placed the complainant in a bear hug to calm her down. Nor do I accept his testimony denying that he placed the complainant in a headlock and denying that he threatened her. I observe that even if I did accept the accused’s testimony about the bear hug, he would still be guilty of assaulting the complainant on that basis. Given this finding, and taking all of the evidence into account, the accused’s testimony does not raise a reasonable doubt in my mind about his guilt on counts 1and/or 2 of the indictment.
[44] While I do not accept all aspects of the complainant’s testimony, I do accept those portions of her testimony which are confirmed by her son D.’s testimony. I am satisfied beyond a reasonable doubt based on that evidence that the accused placed the complainant in a headlock and threatened to break her neck. I am skeptical of the degree of the severity of the assault as described by the complainant. It seems to me that it is more likely that the accused’s hair was pulled out by the roots as the accused described. D. said his mother was standing in front of the couch when she placed the call to the police. He did not describe her being pinned against the wall by her neck. I also observe that the complainant said she chose to call the non-emergency number for the police, although she had 911 programmed into the first position on her speed dial. That seems to me to be incongruent with the severe assault she described as occurring at the time she placed the call.
[45] Despite my reservations about some aspects of the complainant’s evidence, I am satisfied of the accused’s guilt on counts 1 and 2 beyond a reasonable doubt. I reach this decision at the third stage of the analysis described in R. v. D. (W.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757.
The sexual assault
[46] When the complainant attended at a police division to be interviewed in relation to the events of February 26, 2017, she also alleged that in June 2016 the accused sexually assaulted her by forcing sexual intercourse upon her without her consent.
[47] The complainant testified that on a Friday or Saturday night in June 2016 she attended a party with her cousin and some friends. She said she returned home from the party at around 3:30 or 4:00 a.m. As previously mentioned, on weekends the accused slept in the master bedroom and the complainant slept in her son’s room. However, the complainant’s clothing remained in the master bedroom.
[48] The complainant testified that she went into the master bedroom and then into the master bathroom to remove her makeup and change into her nightgown. When she left the bathroom to place her jewelry on the dresser, she turned around to find the accused sitting on the side of the bed. She said that the accused told her he “needed some”, referring to sex. She said she responded that he was not getting anything from her as she was done with him. She testified that the accused said that he was entitled to sex because they were married. She said she told the accused that he was not entitled to anything from her because they were done.
[49] The complainant testified that the accused then grabbed her forcefully by the arm, pushed her face down onto the bed, pinned her arms behind her back, pulled up her nightgown, removed her underwear and had sexual intercourse with her from behind. At no time did she consent. She said that she did not scream because she did not want the children to come in and see what was happening. She said she did not report the misconduct to the police because she was embarrassed and due to her pride.
[50] The accused denies that there was any sexual activity, consensual or otherwise. He agrees with the complainant’s account of events up to the point where she said he forced sexual intercourse on her. The accused agreed that he asked the complainant for sex and that told her that he was entitled to sex because they were married. However, he said the complainant angrily told him that she was giving him nothing and that if he ever tried to take it, she would call the police and he would go to jail. He said that ended their interaction. He testified she then left to sleep in their son’s room. He maintained that he did not touch her that night.
[51] In closing arguments Crown counsel addressed the accused’s submission that there was no independent evidence to corroborate or support the complainant’s allegation. Of course, there is no requirement for such evidence for a conviction. Crown counsel submitted, however, that the accused’s acknowledgement in cross-examination that he told the complainant that he was entitled to sex because they were married makes it more “believable” that the accused would follow through by forcing sexual intercourse on the complainant.
[52] While as a matter of logic there is some value in the submission, I observe that the accused’s statement was one of belief and not one of intent, which he may well have followed through on. In addition, in cross-examination he included in his response that she could say no. He said that “no” was an answer he would accept. As he put it according to my notes, “I said it but not that I am physically going to do it.” I am not able to conclude that, as fully explained by the accused, this submission by Crown counsel carries any significant weight.
[53] As I pointed out earlier in these reasons, there are aspects of the evidence which lead me to conclude that the complainant harbours considerable animosity towards the accused. She decided that the marriage was over and sent a letter to the accused to that effect in May 2016. Then she started family law proceedings. The accused slowed those down. She thought that the accused had been involved in a relationship with T. prior to their separation and was hurt and angry about it. Despite her desire to separate from the accused, he remained in the matrimonial home.
[54] The complainant also delayed in reporting the alleged sexual assault. I recognize that there is no typical way in which a sexual assault victim will react to the abuse or their abuser, that the impact on a victim’s dignity and self-esteem can be substantial and that the victims of sexual abuse often delay in reporting their abuse or never report it at all. Fully recognizing these realities, however, in the totality of the circumstances here the delay in reporting, particularly in view of the complainant’s animosity towards the accused and the family law litigation, contributes to my unease in relying on her allegations in the absence of any form of supporting evidence.
[55] I also have the denial of the accused to consider. He readily admitted that he asked the complainant for sex and that he said he felt entitled because they were married. However, I found his description of the complainant’s angry rejection of his overtures and her stern warning to him that she would call the police and have him put in jail if he tried anything, compelling.
[56] Overall, I am unable to conclude with the required degree of certainty that the accused sexually assaulted the complainant. The accused’s denial, in the context of all the other evidence, leaves me in a state of reasonable doubt. My conclusion in relation to count 3 comes at stage two of the D. (W.). analysis.
[57] Consequently, I find the accused not guilty of the sexual assault alleged in count 3.
F. Dawson J.
Released: December 8, 2021
COURT FILE NO.: CR-19-1575-00
DATE: 20211208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
D. B.
REASONS FOR JUDGMENT
Dawson J.
Released: December 8, 2021