Court File and Parties

COURT FILE NO.: 21-RD16187-A DATE: July 5, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BENOIT LABRECQUE

Counsel: Chantal Lefebvre for the Crown Joe Addelman for Mr. Labrecque

HEARD: June 26, 27, and 28, 2023

Verdict

Justice Sally Gomery

[1] In the early evening of November 1st, 2020, Benoit Labrecque knocked on the outside door to a basement apartment in a house on Meadow Drive in Greely, Ontario. The apartment was rented by Brittany Elder and her husband Paul Fitzgerald. Labrecque’s wife, Kelsea Fox, was a close friend of Elder. They both had very young daughters and often spent time together during the first few months of the COVID-19 pandemic, while they were both on maternity leave. Labrecque also socialized with Elder and Fitzgerald on a regular basis. He considered Fitzgerald a good friend.

[2] Things had changed in August 2020. Fox and Labrecque had fought. She had left their shared residence and they had negotiated a shared parenting schedule. Labrecque had not spoken to Fitzgerald or Elder since the separation. Fox continued to spend a lot of time with Elder. On November 1st, Elder and Fitzgerald had invited Fox to have dinner at their place, along with their long time friend Brandon Torrens.

[3] Labrecque approached the Elder/Fitzgerald residence after seeing Fox’s car was parked outside. Elder came up the inside stairs from the apartment when she heard someone knocking at the door. She was upset to see Labrecque and says she tried to prevent him from coming inside the house. According to her, he responded by forcing his way inside, then choked her, slapped her face, and spit on her.

[4] The other adults in the apartment heard yelling. Fitzgerald, Torrens, and possibly Fox came to the door to see what was happening. There was a physical fight. Everyone agrees that Labrecque was, at one point, on the ground with Fitzgerald as Torrens beat Labrecque on the back with an umbrella. Labrecque admits that he punched Fitzgerald in the face during the altercation and Fitzgerald fell to the ground. He says he did this, though, in self-defence, after Fitzgerald came after him repeatedly. Fitzgerald, Elder, and Torrens dispute this.

[5] Labrecque left the Meadow Drive property after knocking Fitzgerald unconscious. Before he left, according to Torrens, he looked directly at him and made a slashing motion across his throat with his finger. Later that evening, Labrecque sent Fitzgerald a text message saying: “Next time you come at me like that. I’ll hurt you again.” [1]

[6] Labrecque is charged with five offences under the Criminal Code of Canada: breaking and entering to commit an indictable offence (assault), contrary to s. 348(1)(b); assaulting Elder and Fitzgerald and causing them bodily harm, contrary to s. 267(b); uttering a threat of bodily harm to Fitzgerald, contrary to s. 264.1(2); and conveying a threat to cause death to Torrens, contrary to the same provision.

[7] Labrecque’s trial took place June 26, 27, and 28, 2023. The Crown called five witnesses: Elder, Fitzgerald, and Torrens; and two police officers. The defence called Labrecque. Having carefully considered the evidence and counsel’s arguments, this is my verdict.

Legal Framework

[8] Labrecque is presumed innocent. To obtain a conviction, the Crown must prove, beyond a reasonable doubt, that he has committed one or more of the offences on the indictment.

[9] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada directed triers of fact as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[10] In summary, even if I find the Crown’s evidence credible and reliable, and I do not believe the accused’s evidence or find that it gives rise to reasonable doubt, I may still have reasonable doubt based on the evidence as a whole.

[11] The Crown does not need to prove the allegations to an absolute certainty, or beyond any imaginary or frivolous doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. It must, however, prove each element of a charge beyond a reasonable doubt. Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”.

[12] As Molloy J. explained in R. v. Nyznik, 2017 ONSC 4392, at paras. 15-16, a judge’s task in a criminal trial is not only to determine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict the accused. A witness may be trying to tell the truth but be found to be mistaken in their recollection of events based on other reliable contradictory evidence. Only evidence that is deemed both reliable and credible can support a finding of guilt beyond a reasonable doubt. The focus of a criminal trial is not the vindication of a complainant’s account but whether the accused has committed a criminal act for which he may be convicted.

Has the Crown proved, beyond a reasonable doubt, that Labrecque assaulted Brittany Elder after forcing his way into her apartment to do so?

[13] Labrecque’s alleged assault of Elder, and his alleged forcible entry into the Meadow Drive house, occurred before anyone else came to the entranceway. The first step in assessing the Crown’s case on these charges is therefore an assessment of the credibility and reliability of Elder’s testimony. If I find that the Crown’s case on these charges cannot succeed on the basis of Elder’s evidence, I do not need to consider if Labrecque’s denial or if the evidence as a whole gives rise to reasonable doubt.

[14] I will begin by reviewing Elder’s evidence, then assess its reliability.

Elder’s evidence

[15] Elder testified that that, at 5:15 or 5:25 p.m. on November 1st, 2020, she was starting to cook dinner in the kitchen apartment. She had returned from the grocery store a short time earlier with her daughter, then two years old. Her husband Fitzgerald, his friend Torrens, and Labrecque’s wife Fox were sitting in the living room having a drink. Elder denies that she had consumed any alcohol, or that the others were drunk. She had changed into pyjamas after arriving home because the apartment’s furnace ran hot.

[16] Elder heard a knock at the door but ignored it because she thought someone might be knocking on the neighbour’s door. The sound got louder, and she realized that someone was at her own door. She testified that it sounded almost as if someone were kicking it. Elder went up the stairs to the outside door on the main floor to see who was there. She looked through the peephole in the door. Although she did not see anyone, she started to open it.

[17] When Elder had opened the door about eight inches wide, she saw Labrecque on the concrete stoop just outside. She immediately tried to close the door both because Labrecque appeared angry and because he simply was not welcome. Elder testified that she had formed a negative opinion of Labrecque based on what Fox had told her since the break-up.

[18] According to Elder, Labrecque stuck his foot out to prevent her from closing the door and pushed his way in. He began asking “where the fuck” his daughter was. This surprised Elder, because she assumed that Labrecque knew that Fox had left their daughter with Labrecque’s sister that evening.

[19] Elder testified that, when Labrecque pushed the door all the way open, she was knocked off balance and fell down. One of her knees was on the first or second stair down to the apartment while the other was in a crouching position. Labrecque put his hands around Elder’s neck and began to choke her. She could not get any words out, partly due to fear and partly due to pressure on her neck. She tried to grab Labrecque’s forearms to get him to let go. She felt that this went on for a long time but estimated that it actually lasted 30 seconds to one minute. During this time, Labrecque removed one of his hands from her neck to slap her right cheek. He also spit a wad of saliva and mucus on her face and bit the top of her right ear.

[20] Elder recalled that she managed to rise to a standing position, as Labrecque took his hands off her throat before spitting at her. By this time, Fitzgerald had come running up the stairs. He gave Labrecque two or three pushes with his hands and succeeded in getting him out of the house. Elder says she yelled “stop, stop” but Fitzgerald told her to get inside. She did. Fitzgerald turned his back on Labrecque to follow her into the house but then dropped to the ground. Elder did not see what made him fall but assumes that Labrecque hit him on the back of the head. After falling, Fitzgerald was lying on his back on the interlock brick surrounding the concrete stoop.

[21] I will continue to summarize Elder’s evidence in chief past this point in the altercation, as an assessment of the reliability of the whole of her testimony will be relevant.

[22] Elder testified that, after Fitzgerald fell to the ground, Labrecque jumped on top of him, punching him in the face. He also grabbed Fitzgerald by the shoulders and slammed his body onto the interlock brick. Elder said: “Stop, you’re killing him”. Fitzgerald’s eyes had rolled up backwards and Elder thought he was dead or “really messed up”.

[23] When Labrecque would not stop assaulting Fitzgerald, Elder called Torrens and Fox for help. Torrens arrived and used a rolled up golf umbrella to beat Labrecque across the shoulders. The umbrella broke but Labrecque did not stop. Finally he got up, kicked Fitzgerald in the ribs, and ran away to the parking lot in front of the pizzeria next door, got into his car, and drove away. As he left, Labrecque yelled: “This isn’t over, cunt”.

[24] According to Elder, Fox arrived at the top of the stairs as Labrecque was leaving. She called 911. An ambulance arrived for Fitzgerald, but he refused to go to the hospital.

[25] Elder testified that the entire altercation, from the time she answered the door to the time Labrecque left, lasted no more than ten minutes.

[26] Fitzgerald was dazed and confused when he regained consciousness. Based on her own experiences playing sports in high school, Elder thought he was concussed. His eyes were unable to focus. She did not think he realized immediately what had happened.

[27] Elder produced three photos she took of injuries she said she suffered during the altercation with Labrecque. She testified that she took the photos in the apartment later that evening and sent them to the police. The photos show bruising and a horizontal laceration on one of Elder’s knees, a bruise on the inside of her arm, and a cut on a finger. She testified that she hurt her knee when she was kneeling on the stair while Labrecque choked her. She was unsure how she sustained the other injuries but testified that she noticed the bruise on her arm and cut to her finger after the alleged assault.

[28] Elder also produced four photographs she said she took of Fitzgerald’s injuries that evening. They show lacerations and bruising on his mouth, a bloody nose, possible swelling and discoloration from his nose to the inner part of his left eye, a cut on his right cheek, bruising on his inner right arm, just below his armpit, and scrape marks from the centre of his back to his right waist and hip.

[29] Elder said she and Fitzgerald moved out of the apartment on Meadow Drive two or three months after the incident, breaking their lease. They had lived there for eight years, but Elder no longer felt safe when she was at home alone. She was also afraid to take her daughter to daycare on her own. She began going to therapy twice a week.

[30] Elder remained in contact with Fox for about a week after the altercation. Fox then told her that she and Labrecque were reconciling. Fox asked Elder to forget about what had happened. Elder refused and blocked Fox’s number. She has not had any contact with Fox or Labrecque since then.

Assessment of the Crown’s evidence on these two charges

[31] Witnesses are not expected to have perfect recollection, but inconsistencies can demonstrate a carelessness with the truth: R. v. G.(M.), 1994 CarswellOnt 181, at para. 23. A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies or a single inconsistency on a major point may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.

[32] The defence argues that Elder’s testimony is neither reliable nor credible. It contends that Elder’s account of the altercation differs significantly than the accounts provided by Fitzgerald and Torrens, as well as Labrecque’s account, and that the accounts of other witnesses are more plausible. The defence also argues that Elder dislikes Labrecque and so exaggerated or fabricated parts of her testimony to put him in the worst possible light.

[33] I do not accept as significant every inconsistency between Elder’s testimony and the testimony of the other two complainants. The complainants were each describing a violent but brief altercation involving three or four people that took place two and a half years ago. It is not surprising that they did not perceive the incident in exactly the same way or that they recall some details differently.

[34] For example, I do not find it implausible that Elder would have visited the grocery store with her daughter late on the afternoon of November 1st, 2020, even though Fitzgerald and Torrens did not remember this. Neither Fitzgerald or Torrens had a solid recollection of their own movements and activities in the hours immediately before the altercation. Torrens did not even remember that Elder and Fitzgerald’s daughter was present in the apartment that afternoon.

[35] There are, however, some points on which the complainants’ accounts cannot be reconciled.

[36] Elder’s recollection of what she was doing when Fitzgerald arrived at the top of the stairs is inconsistent with Fitzgerald’s recollection. Fitzgerald testified that Elder was either sitting or lying on the floor of the entranceway while Labrecque was over top of her. Elder testified that she was initially kneeling on one knee during Labrecque’s assault but had managed to get back on her feet by the time Fitzgerald arrived. At no point did she recall being on her back or backside on the floor.

[37] Fitzgerald estimated that it took him as little as five seconds to join Elder at the door, after he first heard her yelling. If I accept this evidence, I would have to reject Elder’s account of the assault, as there would not have been enough time for Labrecque to do everything she described before Fitzgerald’s arrival on the scene. Torrens estimated that as much as twenty seconds passed between the time that Elder started to yell and Fitzgerald ran up the stairs, which in my view would have allowed for sufficient time for Labrecque to choke, slap, and spit at Elder.

[38] Each of the complainants described the umbrella wielded by Torrens differently: Elder said it was a golf umbrella, Fitzgerald described it as a children’s umbrella, and Torrens said it was a typical store-bought, long wooden umbrella. In Labrecque’s text message to Fitzgerald later that evening, he referred to the person hitting him “from 5 ft away”. Since Torrens was able to use the umbrella to hit Labrecque from a few feet away, I infer it was a long umbrella. This is generally consistent with the descriptions used by Elder and Torrens but contradicts Fitzgerald’s recollection.

[39] Having reviewed these and other inconsistencies in the complainants’ evidence, I conclude that Torrens was generally the most reliable witness. He was the least inclined to either exaggerate or speculate to fill in a gap in his memory. His testimony was broadly consistent with the physical evidence and with other evidence that I find reliable. He conceded inconsistencies where appropriate. He displayed no hostility towards Labrecque. At the time of the trial, Torrens was in custody on another matter. The details of the other matter were not disclosed, but the defence did not suggest, based on it, that Torrens was an inherently dishonest or untrustworthy witness. His account of the altercation between Labrecque and Fitzgerald differs in one significant way from his statement to police that same evening. I will address this inconsistency later in these reasons. For the time being, I will simply say that the inconsistency does not lead me to conclude that Torrens generally lacked credibility.

[40] Fitzgerald was knocked unconscious by Labrecque and came to in a state of confusion, after having missed some of what had happened in the interim. There were also significant gaps in his recollection of what happened prior to the altercation. Although I think he did his best to assist the court, Fitzgerald acknowledged he did not remember some basic chronology. For example, he could not recall how much time passed from the time he heard Elder and Labrecque yelling to his arrival at the front door of the apartment. When Fitzgerald agreed to suggestions made by defence counsel in cross-examination, I do not think he always did so because his memory was truly refreshed, but because he wanted to appear reasonable and cooperative and had no memory to contradict them.

[41] I do not agree that Elder consciously fabricated anything in her testimony. I do find, however, that she was hostile towards Labrecque and this may have impacted her impression of events.

[42] I reject the defendant’s contention that I cannot rely on any of Elder’s evidence. I agree, however, that I cannot rely on her evidence alone as the basis to convict Labrecque on the first two charges.

[43] Elder’s account of Fox’s role in the altercation differed materially from that of the other two complainants. Elder recalled that Fox arrived upstairs only after the fight was over. Torrens recalled that Fox ran upstairs at the same time as Fitzgerald, and that he himself followed about twenty seconds later. According to him, Labrecque bit Fox’s finger while she was trying to pull him away from Fitzgerald. This is consistent with Labrecque’s evidence. Fitzgerald also recalled that Fox was present outside the Meadow Drive house while the fight was ongoing. He testified that, when he regained consciousness after passing out, Torrens was beating Labrecque on the back with an umbrella while both Fox and Elder were standing off to the right.

[44] Elder’s account of Labreque’s assault on Fitzgerald as Fitzgerald lay unconscious was contradicted by other Crown witnesses and the photographic evidence. Elder described a violent and sustained attack on Fitzgerald by Labrecque. She said that Labrecque punched Fitzgerald at least 15 times and kicked him in the ribs. Torrens testified that Labrecque continued to swing at Fitzgerald as he lay on the ground, but he was not sure if any of the punches landed. He did not see Labrecque kick Fitzgerald at any point. The photograph of Fitzgerald’s face after the fight could be consistent with more than one punch, but it is inconsistent with the savage beating described by Elder. There is no evidence that Fitzgerald’s ribs were bruised, as would be expected if he were kicked in that part of the body.

[45] Elder’s account of the blow that knocked Fitzgerald to the ground was also different than the account of the other two complainants. She said that Labrecque hit Fitzgerald from behind after he turned around to follow her back into the house. Fitzgerald, Torrens, and Labrecque himself testified that Labrecque punched Fitzgerald directly in the face, knocking him out. The injuries to Fitzgerald’s face are consistent with at least one strong blow to his nose and mouth, more on the left than the right.

[46] In addition to Elder’s testimony, the Crown relies on the evidence of the injuries to Elder’s arm, knee, and finger, and on a text that Labrecque allegedly sent to Fitzgerald on September 1st, 2021.

[47] The photo of Elder’s knee supports her account. The laceration and bruising could have been caused, in my view, by her knee being pushed against the metal edge of a stair, as she described. The photo of Elder’s arm neither assists nor contradicts her account. She admits that she did not know how she got the bruise on her inner elbow. The photograph of an injured finger produced by Elder is problematic. She admitted that she could not recall how her finger was cut but testified that the finger shown in the photograph was her finger. Labrecque says he bit Fox’s finger during the altercation. So does Torrens. He vividly described how this happened as Fox was trying to separate Labrecque and Fitzgerald. He recalled seeing Fox’s injured finger and a bruise under her nail after the fight. Officer Keith Jay, the police officer who attended the scene, also noted that Fox had an injury to her finger.

[48] The photo produced by Elder shows a cut that could have been caused by a bite. It would be highly coincidental if Fox and Elder each sustained this same injury. I find that this photo more likely than not shows Fox’s finger, and I accordingly conclude that Elder either misremembered or misrepresented the photo.

[49] Officer Jay did not see any marks on Elder’s face or neck. The absence of any sign of a slap that took place half an hour or more earlier is not surprising. Elder testified, however, that Labrecque choked her with two hands hard enough for her to have trouble breathing. She was wearing a pyjama top. It is possible that she was not bruised but surprising that there was no visible sign whatsoever of any injury to her neck half an hour later. There is also no record, either photographic or otherwise, of an injury to Elder’s ear, which Labrecque allegedly bit during the assault.

[50] Labrecque admits that he sent Fitzgerald texts on November 1st and 2, 2020. He denies, however, that he sent a September 1st, 2021 text, which came from a different telephone number than the others. The September 1st, 2021 text reads as follows:

Paul, I think you blocked me the day after all this shit happen. I just want you to know I did try to apologize. You and brit welcomed us to greely and were amazing friends. I was going through a lot of shit and I’m sorry I took it out on you guys. I am writing this because of my preliminary coming up but don’t think I dont mean this. Whether this means shit to you or not, I am sorry again to you and Brittany.

[51] I find it implausible that anyone other than Labrecque sent this text. His preliminary inquiry on these charges took place in September 2021. The text refers to Fitzgerald and Elder by name and refers to them welcoming “us” to Greely, the town where Fitzgerald and Elder had lived for many years and to which Labrecque and Fox relocated in June 2018. The tone and content of the text is consistent with the text that Labrecque admits he sent to Fitzgerald on November 2, 2020, in which he wrote: “Your a good fucking guy. I’m sorry shit went down like that. I’m falling apart man.”

[52] Having found that Labrecque wrote the September 1st, 2021 text, however, I do not find that it assists the Crown very much. Labrecque apologizes to both Fitzgerald and Elder, saying he is sorry that he took out his emotions on “you guys”. This could be consistent with Labrecque having assaulted Elder. But it is also consistent with Labrecque acknowledging that he punched Elder’s husband and yelled at her.

Conclusion on the first two charges

[53] I am left with a photo of Elder’s knee that supports her account but concerns about the reliability and credibility of key aspects of her evidence. I conclude that the Crown has not established, beyond a reasonable doubt, that Labrecque forcibly entered the house to assault Elder or that he did in fact assault her causing bodily harm.

Has the Crown proved that Labrecque threatened Torrens?

[54] The Crown’s case on this charge rests uniquely on Torrens’ evidence. As mentioned at the outset, he testified that, as Labrecque was leaving the Meadow Drive property, he looked directly at Torrens and made a slashing motion across his throat with his finger. According to Torrens, Labrecque was standing at the back of the patio, about ten feet away, when he made this gesture.

[55] I find that the gesture described implies a threat to kill someone by cutting their throat. Torrens’ evidence about it, and the circumstances in which it was made, was not successfully challenged in cross-examination.

[56] Labrecque denied making the gesture. Since I find the Crown’s case on the threatening gesture to Torrens is credible, I must consider whether it has proved the charge using the three-step W.(D.) inquiry.

[57] The first question is whether I believe Labrecque’s denial that he made a threatening gesture to Torrens. I do not. His denial was not even unequivocal. In his examination in chief, he said he did not make a threatening gesture to Torrens. In cross-examination, however, he said he did not have time to make the gesture and later that he did not think he would have turned around and made such a gesture. This is not a firm denial. It appears instead to be a reconstruction based on what Labrecque remembers about what he thinks he could or would have done in the circumstances. What it suggests is that Labrecque does not actually remember whether he made the gesture described by Torrens.

[58] Having concluded that I do not believe Labrecque’s denial, I must next consider whether I am nonetheless left in doubt about his guilt based on his evidence. I am not left in doubt.

[59] In general, I did not find Labrecque to be a credible witness. There are several reasons for this.

[60] First, Labrecque’s evidence at trial differed from the account he gave to a 911 operator a few minutes after the fight. Labrecque acknowledged in cross-examination that he made this call because he knew that Fitzgerald and Elder would report the altercation to the police, and he wanted to get his version of events on the record.

[61] Labrecque told the 911 operator that he was pushed by Elder and that she took a swing at him. He admitted this was untrue at trial. He did not mention his assertion at trial that Elder spat on him, or that Fitzgerald fell because he tripped on the edge of the stoop.

[62] During the 911 call, Labrecque characterized the Meadow Drive apartment as a “drug house” but did not mention that he had seen cocaine there. This was significant, in my view. He testified at trial that he had seen cocaine on a coffee table in the Meadow Drive apartment, within reach of his one year old daughter, in August 2020. According to Labrecque, this discovery was why he and Fox began to fight and why she left him a few weeks later. He wanted Fox to end her friendship with Elder because he was worried that their daughter would be exposed to drugs, but she refused. He testified that seeing cocaine in his daughter’s reach made him fear for her safety and even her life. According to Labrecque, this fear was the only reason why he stopped at the Meadow Drive apartment on November 1st, 2020.

[63] The cocaine Labrecque allegedly saw should therefore have been top of mind when he spoke to the 911 operator a few minutes after the fight. It would have put Elder and Fitzgerald in a negative or even criminal light. And yet he did not mention this critical allegation.

[64] A person calling 911 is not under oath and may not provide a full account of the events that prompted the call. Labrecque’s omissions bear on his credibility, however, because they would have put him in a better light and his stated purpose in phoning 911 was to establish his version of events.

[65] Second, Labrecque equivocated and evaded questions put to him in cross-examination. He initially denied that he would have been mad to learn that Fox started dating someone during their separation, insisting only that he would not be happy. He conceded that he was angry to discover that Fox was interested romantically in Torrens only after being confronted with his text messages to Fitzgerald on November 1st, in which he referred to Torrens as the “fagot” who was trying to “fuck my wife”. He equivocated about whether he and Fox continued to have disagreements after their separation. He went back and forth on whether he knew that he was not welcome at the Meadow Drive house, even though he testified about a huge confrontation with Elder after the supposed discovery of cocaine at the apartment, after which he stopped talking to her and Fitzgerald. He initially denied that he could have parked in the driveway in front of the house, even though the driveway could easily accommodate eight or ten cars. He said that he took his normal route when he went past the Meadow Drive house on November 1st, even though he told the 911 operator that he “swung by” to see if Fox and their daughter were there. He denied that he knew that there was a peephole in the door to the house, even though he testified that he had visited several times a week for six months. He initially said that he did not know how Fitzgerald got a cut on his right cheek, but then suggested that Fitzgerald might have got the injury by rolling after he fell.

[66] Third, parts of Labrecque’s account were simply not credible. He testified that, after the fight, he was “full of bruises and cuts”, he was “scratched up everywhere” and his nose was bleeding. In cross-examination, Labrecque stated that the scratches on his face would have been visible when he looked in the mirror. He also said he had bumps on the back of his head. No cuts, bruises, blood, scratches, bumps, or injuries of any kind were observed by Officer Eva-Gonzalez, who attended at Labrecque’s residence at 6:27 p.m. on November 1st, 2020, about an hour after the altercation. The officer noted only that Labrecque’s face was red and blotchy, as though he had been crying. It was admittedly dark and, although the officer had a flashlight, he was standing ten feet away. But given that Labrecque’s admitted purpose in phoning 911 was to get his story out there because he knew that Elder would herself phone the police, it is unbelievable that he would have visible injuries or bleeding, on his face or elsewhere, yet fail to draw them to the officer’s attention or to document them in any other way.

[67] Labrecque’s claim about seeing cocaine at the Meadow Drive apartment in August 2020 is implausible, in my view. Although both Elder and Fitzgerald admitted that they had struggled with drug addiction prior to the birth of their daughter, they said they had ceased using and vehemently denied they had cocaine in their home in 2020. Labrecque’s own actions prior to November 1st are inconsistent with his allegation. As mentioned already, he expressed the view that Elder had endangered his daughter’s life by leaving cocaine within her reach. He stopped going to the apartment, even though he had previously been visiting twice a week for the preceding six months, and ended any contact with Fitzgerald, whom he described as a good friend. He argued with Fox about her continued friendship with Elder; this was ostensibly the issue that led to their separation. Despite all of this, Labrecque admitted that he never mentioned finding cocaine at the apartment to Fitzgerald, nor did he report his discovery to the Children’s Aid Society, the 911 operator, or Officer Eva-Gonzalez.

[68] Since I reject Labrecque’s allegation about finding cocaine at the Meadow Drive apartment, I also reject his assertion that his visit to Meadow Drive on November 1st, 2020 was uniquely driven by his concern for his daughter. I infer that he was suspicious about Fox’s activities. This is consistent with his text messages later that night, which reveal his suspicion that Fox was romantically involved with Torrens.

[69] All of this leads me to find that Labrecque’s evidence was generally not reliable, and to require me to decide if, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of Labrecque’s guilt on the charge of threatening Torrens.

[70] As already mentioned, I found Torrens generally to be a credible and reliable witness. It is entirely plausible that Labrecque would have made the threatening gesture Torrens described. Every witness, including Labrecque himself, testified that Torrens had just finished beating Labrecque with an umbrella. Based on Labrecque’s text messages later that evening, he believed that Torrens was trying to have sex with his wife. Labrecque admitted at trial that he was angry during the altercation and remained angry when he wrote the texts two hours later, another of which threatened Fitzgerald with bodily harm.

[71] The defence argued that the Crown had not proved that Labrecque intended to threaten Torrens. Mr. Addelman suggested that Labrecque may have simply been trying to discourage Torrens from following him. But there is simply no evidence that Labrecque feared Torrens or thought he might come after him as he left. Labrecque said nothing about this in his testimony. This leaves me with no explanation for the purpose of Labrecque’s gesture beyond the obvious one: he meant to threaten Torrens.

[72] On the evidence as a whole, I find, beyond a reasonable doubt, that Labrecque made a slicing gesture across his throat to Torrens on November 1st, 2020 and that this conveyed a death threat.

Has the Crown proved that Labrecque threatened Fitzgerald?

[73] As mentioned at the beginning of this verdict, Fitzgerald received a text message from Labrecque at 7:32 p.m. on November 1st, 2020, that reads as follows: “Next time you come at me like that. I’ll hurt you again”. At trial, Labrecque admitted that he sent this message but denied that the text should be considered a threat of bodily harm. In his view, this text supports his contention that he was acting in self-defence when he knocked Fitzgerald out during the altercation earlier that evening. He was not threatening Fitzgerald but merely warning him that, if Fitzgerald pushed him or grappled with him again, Labrecque would again not hesitate to defend himself.

[74] In R. v. Ross, 26 CCC (3d) 413 (ONCA), the Ontario Court of Appeal held that a conditional threat is a threat for the purposes of the Criminal Code. The accused in that case had stated, among other things, that if a police officer whom he viewed as a trespasser did not leave his property, “he will be shot”. He was acquitted at trial, on the basis that the statements were warnings rather than threats. The Court of Appeal directed a new trial. It noted that the Shorter Oxford English Dictionary defines “threat” to include: “a declaration of … damage to be inflicted in retribution for or conditionally upon some course”. The Court found that “a conditional intention is capable of being an intention (here, the expression of an intention to inflict injury or death) for legal purposes”, and concluded that: “A conditional threat, if one wants to describe it that way, is part of the ordinary meaning of threat and we think that it would be in accordance with the purpose of s. 331(1) of the Criminal Code to interpret it as including such a threat.”

[75] The provision of the Criminal Code at issue in Ross read as follows:

331(1) Every one commits an offence who by letter, telegram, telephone, cable, radio, or otherwise, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or injury to any person,

[76] The current version of s. 264.1(2) is identical, except that “by letter, telegram, telephone, cable, radio, or otherwise” has been replaced by “in any manner”.

[77] Ross has been repeatedly affirmed by criminal courts across Canada. In R. v. Deneault, 2002 BCCA 178, the accused told two forestry workers that they must leave land subject to a First Nations land claim. He said he would escort people out but was willing to shoot or burn to protect his land if they did not leave. He appealed his conviction of uttering a threat of death or bodily harm. One of his arguments was that because the threat was conditional, it could not constitute an offence. Citing Ross, the B.C. Court of Appeal dismissed this argument, holding that conditional threats are included in the ambit of s. 264.1.

[78] I conclude that the words used in the November 1st text constitute a threat of bodily harm, even if they are framed in a conditional way.

[79] When asked about his intent when he sent the message to Fitzgerald, Labrecque said he was not sure. This does not amount to a denial of his intent to threaten Fitzgerald. Labrecque admitted he was angry when he wrote the text. Although he had punched Fitzgerald, he felt that Fitzgerald had assaulted him rather than the other way around. Again, there is no evidence inconsistent with the logical inference that, in writing the text, Labrecque meant to threaten Fitzgerald.

[80] I conclude, beyond a reasonable doubt, that Labrecque intentionally threatened Fitzgerald with bodily harm in the text he sent to him on November 1st, 2020.

Has the Crown proved that Labrecque assaulted Fitzgerald?

[81] Labrecque admits that he punched Fitzgerald in the face, and that Fitzgerald fell to the ground. He contends that he is not guilty of assault causing bodily harm, however, because he acted in self-defence.

[82] Section 34(1) of the Criminal Code states:

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.

[83] Labrecque is not required to prove that he acted in self-defence so long as the defence has an air of reality. Where it has an air of reality, the Crown must prove beyond a reasonable doubt that Labrecque did not act in self-defence. Unless the Crown proves beyond a reasonable doubt that at least one of the conditions in s. 34(1) was absent, I must acquit Labrecque.

When Labrecque punched Fitzgerald, did he believe that force was being used against him or that Fitzgerald was threatening to use force against him?

[84] According to Labrecque, his physical altercation with Fitzgerald started when Fitzgerald emerged from inside the Meadow Drive house. He ran between Elder and Fox, who were in the entranceway, grabbed Labrecque by the collar and pushed him further outside. When Fitzgerald got to the end of the stoop, he tripped and fell onto the ground with Labrecque. Labrecque did not think that Fitzgerald hit his head at this time. He denies that he punched or tried to punch Fitzgerald when they were on the ground. He testified that he wanted to leave but could not let go of Fitzgerald so long as Fitzgerald was holding on to him.

[85] In cross-examination, Labrecque denied that he was aware that Fox, Elder, and Torrens were trying to get him to let go of Fitzgerald. He admitted, however, that he felt hits on the back of his head. He also felt hands on his face and head, grabbing him. It was at this point that Fox stuck her finger in his mouth and he bit it.

[86] Labrecque testified that, when Fitzgerald finally let go of him, he stood up and started to walk away, off the property and towards his car. He had walked about ten feet away when Fitzgerald caught up with him. In his examination in chief, he testified that Fitzgerald charged at him. He expressed the view that Fitzgerald was intoxicated based on the look in his eyes. When Fitzgerald got close, Labrecque punched him. Fitzgerald fell to the ground. Labrecque initially denied that Fitzgerald passed out, but later conceded that his eyes rolled back as he hit the ground and that he lost consciousness. After knocking Fitzgerald out, Labrecque continued to his car parked about twenty feet away, got in, and drove away.

[87] Fitzgerald also testified that he fell to the ground after pushing Labrecque onto the concrete stoop from the doorway, but says he fell because Labrecque punched him, not because he tripped. Elder testified that Labrecque hit Fitzgerald from behind, but I have already rejected her evidence about this. Torrens had not yet arrived at the entranceway at this point.

[88] On the other hand, every one of the witnesses, including Labrecque, recalled that Labrecque was standing over or grappling with Fitzgerald as Fitzgerald lay on the ground and Torrens was hitting Labrecque with an umbrella. At trial, Torrens, Elder, and Fitzgerald each recalled that Fitzgerald was unconscious at this point. According to Fitzgerald and Torrens, Fitzgerald hit his head on the brick wall of the house after Labrecque punched him. This is consistent with the cut on Fitzgerald’s right cheek. Elder and Fitzgerald deny that that he got up again, as Labrecque testified.

[89] The question, then, is whether Fitzgerald lost consciousness the first time he fell to the ground, or whether he did so after falling a first time and getting up again, then being punched by Labrecque.

[90] Labrecque’s testimony on this point is supported by Torrens’ police statement. In it, Torrens said that he saw Labrecque punching Fitzgerald as Fitzgerald lay on the ground. Labrecque got up after Torrens broke the umbrella over his head. When Fitzgerald stood up too, Labrecque punched him, knocking him out.

[91] In order to assess Labrecque’s self-defence claim, I do not have to definitively resolve the question of whether Fitzgerald got up after his first fall to the ground. Even assuming that Fitzgerald and Elder are mistaken about what happened during the altercation and that Torrens’ police statement should be preferred over his recollection at trial, I do not believe that Fitzgerald charged at Labrecque as he left the Meadow Drive property. Even if he did, I do not believe that Labrecque punched Fitzgerald because he felt threatened by Fitzgerald.

[92] I do not believe Labrecque’s assertion that Fitzgerald charged towards him nor does his evidence as a whole leave me in reasonable doubt that Fitzgerald may have done so. I have already found that Labrecque was not, in general, a credible witness. Torrens did not observe Fitzgerald charging at Labrecque. Fitzgerald denied that he had any desire to fight with Labrecque. He simply wanted him to leave.

[93] Labrecque furthermore did not testify that he punched Fitzgerald because he believed that Fitzgerald was threatening to use force against him. He said that he simply wanted to ensure that his daughter was not in the apartment, but did not leave after being told, by both Elder and Fox, that she was not in fact there. He disengaged from the initial physical confrontation with Fitzgerald only after Torrens broke an umbrella over his head. He turned to confront Fitzgerald rather than continuing to his car. His actions did not display any fear that Fitzgerald would use physical force against him. Labrecque admitted that he was angry when he knocked at the door to the Meadow Drive house, and he remained angry during the confrontation and two hours later.

[94] Defence counsel argued that there is reasonable doubt as to whether Labrecque felt threatened, given that Fitzgerald had physically pushed him, and Torrens, Fox, and Elder had hit him and grabbed at him, all within the preceding minute or two. It is true that everything happened very fast. There is simply no credible evidence, however, that Labrecque believed Fitzgerald was physically threatening him as he began leaving the property.

[95] Mr. Addelman also argued that Labrecque’s text message to Fitzgerald later that evening (“Next time you come at me like that. I’ll hurt you again”) supports his claim that he believed he was defending himself against a physical threat when he knocked Fitzgerald out. The text is at best ambiguous. The construction that defence counsel urges me to place on it is not supported by any other evidence that I accept about what prompted Labrecque to punch Fitzgerald and is contrary to evidence I do accept. I conclude that the text alone does not give rise to reasonable doubt.

[96] I find that the Crown has proved, beyond a reasonable doubt, that Labrecque did not punch Fitzgerald because he genuinely believed that Fitzgerald was threatening him with physical violence.

Conclusion on the self-defence argument and the charge that Labrecque assaulted Fitzgerald

[97] My finding on s. 34(1)(a) means that I do not have to consider the criteria to establish self-defence at subsections (2) and (3).

[98] For further certainty, however, if it were necessary to consider the reasonability of Labrecque’s action based on the factors at s. 34(2), I would find that the Crown had proved that the blow he gave to Fitzgerald’s face was unreasonable in the circumstances. The particular factors that I find the most relevant are the parties’ friendship and history; the absence of any violence or threats between them prior to November 1st, 2020; Fitzgerald’s lack of any physical assault on Labrecque, aside from pushing him some time before Labrecque punched him; Labrecque’s multiple opportunities to end the altercation by leaving the Meadow Avenue property; and the force of Labrecque’s blow, which was so powerful that it caused Fitzgerald to lose consciousness. On this last point, I reject Labrecque’s assertion that Fitzgerald was very drunk. This is a speculative claim that was denied by the complainants and was not corroborated by or even put to the police officer who attended the property right after the fight.

[99] I conclude that the Crown has proved, beyond a reasonable doubt, that Labrecque intentionally punched Fitzgerald, causing him bodily harm, and in doing so he did not act in self-defence.

Disposition

[100] I find Labrecque guilty on the charges of conveying a death threat to Brandon Torrens, communicating a threat to commit bodily harm to Paul Fitzgerald, and assaulting Paul Fitzgerald causing him bodily harm. I acquit Labrecque of the other two charges.

Justice Sally Gomery

Released: July 5, 2023

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