COURT FILE NO.: CR-23-50000166-0000
DATE: 2024-05-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
L.C.L.
Defendant
Stuart Rothman, for the Crown
Robert Lepore, for the Defendant
HEARD: March 18-21, 2024
PUBLICATION BAN
There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a victim or a witness.
DINEEN J.
[1] Mr. L. stood trial on a six-count indictment charging offences against his former wife F. J. The first three counts allege dangerous driving, assault with a weapon, and assault causing bodily harm. These arise from an allegation that he drove at high speed while Ms. J. was clinging to the hood of his car and that he struck her with a belt while doing so. He is also charged with mischief and assault causing bodily harm as a result of another incident where he is alleged to have bitten her and taken her phone. Finally, he is alleged to have sexually assaulted her on a third occasion.
The evidence at trial
The relationship between Mr. L. and Ms. J.
[2] Mr. L. and Ms. J. met in Jamaica in 2008. Ms. J. was a neighbour of Mr. L.’s mother in that country, and they would see each other when he came from Canada to visit his mother. When they met, Mr. L. had a son and Ms. J. had a daughter named H-L.
[3] A romantic relationship developed and Mr. L. began to travel to Jamaica to visit for two or three weeks several times a year. Mr. L. continued to be involved with other women in Canada at times. This and the long-distance nature of the relationship were sources of tension and he and Ms. J. broke up at one point for a period of time.
[4] Mr. L. and Ms. J. had a daughter, H., who was born in Jamaica on May 10, 2011. Mr. L. is a Canadian citizen and sought to get a Canadian passport for his daughter, and as a result he and Ms. J. began to discuss marrying and moving the entire family to Canada. They ultimately married in Jamaica in March 2016 and Mr. L. sponsored Ms. J. and her daughters. Ms. J. moved to Canada with H. in March 2017 and H-L. followed in June 2017. They lived together in an apartment building on Martin Grove Road in Etobicoke. H. and H-L. shared one bedroom while Ms. J. and Mr. L. shared a second bedroom.
[5] It was common ground that their relationship had its ups and downs, and that a continuing source of problems was Ms. J.’s suspicion that Mr. L. was engaging in extramarital affairs. In his testimony, Mr. L. denied that he was unfaithful, at least while they lived together in Toronto, and said that Ms. J.’s suspicions were unfounded and based on little evidence.
Counts 1-3: the car incident
The evidence of Ms. J.
[6] The first set of charges relates to an incident that Ms. J. testified took place one night in June of 2021 at around 10:00 or 11:00 p.m. Mr. L. was going out with friends that evening and she asked if she could accompany him. He agreed and they went to the parking lot of their building. He unlocked the car remotely with his fob and she sat in the passenger seat of Mr. L.’s car.
[7] Mr. L. then abruptly announced that he was not going to go anywhere with her and demanded that she get out of the vehicle. She replied that they always go out together and asked him what the issue was, but he refused to explain his reasons and continued to insist that she leave the car. Mr. L. then began to try to physically drag her out of the car, eventually succeeding. He also removed his belt and tried to strike her with it while she was standing in front of him, catching her a few times on the hands.
[8] Ms. J. then climbed on the hood of the car in an effort to prevent Mr. L. from leaving without her. Mr. L. got in, started the car and drove out of the underground parking lot. He drove quickly and she lay down on her back on the hood and put her hands over her shoulders and used each hand to grip the metal brackets securing the windshield wipers to the car.
[9] Mr. L. drove into the street and drove north on Callowhill Drive past a nearby Tim Horton’s, turned west on to the Westway, and then north on to Sandwell Drive, driving quickly and braking and swerving in an attempt to throw Ms. J. off his vehicle. He also leaned out the driver’s side window and attempted to strike her with his belt while driving. He drove this route more than once, going up and down the street trying unsuccessfully to throw her off.
[10] Eventually, Mr. L. pulled up in front of their building, got out of the car, and pulled her physically off the hood as she was sitting up, causing her to fall to the ground and injure herself. He then drove off. She texted him to say she intended to report this to the police and he told her to go ahead. He returned later that night and they did not discuss the incident further. Ms. J. suffered scrapes and bruises to her arms. She took photos of these injuries and of apparent blood stains to the car.
Mr. L.’s evidence
[11] Mr. L. gave a significantly different account of this event. He recalled that it was a Friday or Saturday night in June 2021 and that he was planning to attend a birthday party with a number of friends including a man named S. He had told Ms. J. he would be going to a party but had not mentioned that he was doing so with S. Ms. J. disapproved of their friendship because she believed that S introduced Mr. L. to other women.
[12] While Mr. L. was in the shower, S phoned and Ms. J. answered the call. When she realized that Mr. L. intended to go out with S, she insisted that he stay home. A heated argument ensued and Mr. L. declared that he was going to go irrespective of her wishes. He went downstairs to the car with Ms. J. following him and continuing to demand that he stay home. Mr. L. denied that there was any discussion of her accompanying him, saying that she was not dressed to go out.
[13] Mr. L. unlocked the driver’s side door and got in. Ms. J. tried to open the passenger’s side door but he kept it locked. He drove out of the parking lot and she followed him on foot. When he reached the exit to the street, he stopped to watch for traffic and Ms. J. took this opportunity to jump face down on the hood of the car. He put the car in park and got out and told her to get off the car but she did not move. He grabbed her by the waist and pulled her off the car, causing them both to lose their balance and her to fall to the ground. He did not notice any injuries to her at that time but acknowledged that she may have hit her elbows and injured herself when falling.
[14] Ms. J. jumped back on the hood and gripped something on the front of the car. They continued to speak and he pleaded with her not to make a scene in public. She eventually agreed to go inside and he left for the party. She called him while he was out to say she would report him to the police because she had been injured, but when he returned home there was no further discussion about what happened.
Count 4: the alleged sexual assault
[15] Ms. J. testified about a single incident of forced sexual intercourse. Mr. L. had been away and when he returned she was coughing from an illness. He asked if she had been tested for COVID and gave her cough medicine. He then wanted to have sex and she refused, explaining that she was unwilling because she believed him to be involved with other women. He insisted and climbed on top of her and attempted to force her mouth open and insert his penis. She held her teeth shut to prevent this.
[16] He then pinned her down and had vaginal intercourse with her while she protested and attempted to push him off. He eventually ejaculated in her face and then fell asleep next to her.
[17] Mr. L. denied that this took place or that he ever had non-consensual sexual contact with Ms. J.
Counts 5 and 6: The phone incident
Ms. J.’s evidence
[18] Ms. J. testified that on a later date, she was in her daughters’ bedroom with both daughters present when she unexpectedly received a message on her phone. The message informed her that her Google password was being changed and asking whether she approved the change. She clicked “no” on H-L.’s advice. Mr. L. appeared a moment later and sought to grab her phone from her hand. They began to struggle over the phone. Mr. L. was accusing her of having taken his own phone.
[19] Mr. L. tried to twist her hands to make her let go of the phone, some wrestling followed, and then he bit her in the back which led her to let go. Mr. L. took the phone with him to the master bedroom and she pursued him demanding its return. He appeared to be looking through the phone and she grabbed it back from him. He pushed her to the floor and tried to hold her head down with his foot while grabbing for the phone and eventually got control of it again. He pushed her out of the room, closed the door, and locked it.
[20] Ms. J. retrieved a key from her daughters’ room and unlocked the master bedroom and once again demanded her phone. She could not see it at this time. She also found another phone and used it to begin recording their interaction while threatening to send the recording to a friend in Jamaica. Mr. L. eventually relented and returned her phone.
[21] Ms. J. testified that she did not understand Mr. L.’s motivations for taking her phone. He had access to all her email and other accounts because she was not tech-savvy and needed him to set them up for her. While he demanded the return of his own phone during the incident, she did not have it, and indeed it was visible in the master bedroom while they were struggling.
[22] According to Ms. J., after this event Mr. L. changed the lock to the master bedroom and effectively kicked her out and she thereafter slept in her daughters’ room. She photographed her injuries from the bite. Ms. J. denied biting Mr. L. during this incident, though she testified that she did strike him, including with a key.
Mr. L.’s account
[23] Mr. L. testified that he believed this event took place in January 2022. He was working as an Uber driver at this time and he carried two cell phones, one of which he used to play games while the other was running the Uber app required for his work. He and Ms. J. were barely on speaking terms at this point. She had, on her own initiative, been sleeping in their daughters’ room for a number of months.
[24] On the day in question, he returned home to find that this second phone was missing. He testified that Ms. J. would frequently take his belongings and so he assumed that she was responsible. He tried to remotely reset the password on her phone, planning to offer to tell her the new password if she returned his phone. When this failed, he decided to physically take her phone.
[25] He entered his daughters’ room and quickly snatched Ms. J.’s phone out of her hands. She demanded it back and he said she would get it when she returned his phone. He left the room. He testified that he was only in the room with their children for a few seconds.
[26] He retreated to the master bedroom and locked the door. She got a key and unlocked it, leading him to try to bar the door by bracing himself against it. Eventually she forced it partially open, grabbed on to his clothes, and bit him on the left side of the chest. He pushed her off and she bit him again, first on the right arm and then deeply into the left arm. He responded by biting her on the left shoulder which led her to release her own bite. Mr. L. took photos of injuries suffered during this event which depict apparent bite marks. The defence position is that his bite amounted to lawful self-defence.
[27] Mr. L. testified that he managed to close the door again and that this dispute continued for some 15-20 minutes with Ms. J. banging on the door demanding her phone back. He ultimately relented and returned it, thinking that the fight “wasn’t worth it” with their children present in the apartment. He testified that he never did receive his own second phone back.
The evidence of H-L. D. and the video she recorded
[28] Ms. D., Ms. L.’s older daughter, was 24 years old at the time of trial. She testified that her relationship with Mr. L. was OK at first, but that he and her mother began to argue over and over about her mother’s belief that Mr. L. was having an affair. Her mother had moved out of the master bedroom in late 2021 over this issue. Ms. D. testified that she cared for them both and this conflict was very stressful and frightening.
[29] Ms. D. testified that on the evening in question, she was lying on the bed with her mother and sister watching TV. The door was closed.
[30] Mr. L. came in and tried to grab Ms. J.’s phone. Ms. J. resisted, tucking the phone under her body and telling Mr. L. to leave her phone alone. They began to struggle with Mr. L. grabbing Ms. J. in a bear hug and biting her on the back of the shoulder causing her to release the phone. He then took it to the master bedroom.
[31] Ms. D. began to record a video with her phone at this point. She explained that she did so because she was afraid they might hurt each other. The video is in two parts that total 13 minutes and 28 seconds and captures the second bedroom in the apartment and the hallway visible through its open door. Mr. L. cannot be seen on the video but can be heard arguing with Ms. J. after she apparently retrieved keys and went to the bedroom. Much of what is said cannot be easily made out but Mr. L. can be heard demanding his phone and at one point saying “…if you bite me one more time…”
[32] Ms. J. can be seen falling backwards onto the floor in the course of the argument following a loud banging noise that was seemingly the slamming of the master bedroom door.
The reporting of the alleged offences
[33] Ms. J. went to the police on July 8, 2022. She testified that at around this time, the relationship was worsening and she wanted to move out. She was making arrangements to live in the basement of a friend’s residence. She began taking her daughters overnight to visit this residence. She and Mr. L. were barely communicating at this time.
[34] Mr. L. testified that Ms. J. and their daughters left on overnight trips at least four times in 2022 and that he had no issue with this so long as he could contact his daughter. The last such occasion was Canada Day weekend. He had not known they were leaving and came home from work to find them gone, and he received no response for two days when trying to call or text H. Upon their return, he told Ms. J. that if she left again with their daughter without telling him and allowing him contact with her that he would report her for kidnapping. She told him that he should not be concerned because H. was OK.
[35] Ms. J. testified that she attended the police station because she wanted to leave Mr. L. but was not sure she could lawfully just leave with her daughter. She asked the police to assist in leaving with notice to Mr. L. so that he did not report her for taking their daughter behind his back and so that she could get her belongings that he had locked in the master bedroom. The police advised her that this was a family court issue and not a police matter, but asked whether there was a concern for the safety of her daughter. This eventually led Ms. J. to describe the events she detailed in her testimony.
[36] She had not previously reported these incidents despite documenting her injuries because Mr. L. was her daughter’s father and the one who had brought her to Canada. She felt she would be being ungrateful and did not want to report him to the police for their daughter’s sake.
Findings
Counts 1-3: the car incident
[37] I believe Mr. L.’s evidence about what happened during the car incident and I do not accept Ms. J.’s account. Mr. L.’s explanation for how the dispute arose made sense. It was consistent with the evidence of all of the witnesses that Ms. J.’s suspicions about Mr. L. meeting other women was the main source of conflict in the relationship. By contrast, Ms. J.’s description of how the argument began made little sense. It is difficult to understand why Mr. L. would agree to bring her along to meet his friends, unlock the car to allow her to get in, and then suddenly change his mind for no apparent reason and violently try to remove her from the car. Mr. L.’s evidence that there was never any suggestion that she would accompany him, and that all of her efforts were directed at preventing him from leaving at all, is much more logical.
[38] I also reject Ms. J.’s evidence that Mr. L. drove around the neighbourhood at high speeds while she clung to the hood of the car thwarting his aggressive attempts to throw her off. Mr. L. in his evidence came across as sincerely embarrassed by the possibility that his argument with his wife culminating in her climbing on the car might have been observed by passers-by. I have difficulty imagining him recklessly driving with her on the hood of his car when this would almost certainly have been noticed by other drivers or pedestrians. I have even more difficulty believing that Ms. J. could keep hold of the car if he drove in the way she described, a feat that would challenge an action movie stuntperson. Ms. J.’s entire account was inherently implausible and I do not believe her.
[39] I found Mr. L.’s account of the event credible. It was consistent with the photos depicting blood staining on the car where Ms. J. would have climbed back onto the hood after suffering scrapes when pulled off the car. Mr. L. acknowledged facts that did not assist his position, freely admitting that he used force against his wife when frustrated by her refusal to let him drive to the party and that this ultimately likely caused her injuries.
[40] Given these findings of fact, I not only have a reasonable doubt on counts 1 and 2, I am satisfied that Mr. L. did not drive dangerously or assault Ms. J. with a belt. However, as I have noted, Mr. L.’s own evidence is that, in pulling her off the car, he used non-consensual force on Ms. J. that was the immediate cause of injuries amounting to bodily harm.
[41] The defence position on count 3 is that Mr. L.’s actions were lawful by virtue of s. 35 of the Criminal Code, which reads as follows:
35 (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
[42] Neither party was able to locate any authority on whether conduct such as Ms. J.’s actions in climbing on Mr. L.’s car to stop him from driving away had the effect of rendering the car “inoperative” within the meaning of the section. The Crown did not urge me to reject the defence on this basis. I have concluded that, assuming that Mr. L.’s use of force against Ms. J. was motivated by the fact that she was obstructing his lawful operation of his car and that this satisfies the requirements of s. 35(1)(b), his actions were nonetheless not reasonable and the s. 35 defence accordingly fails under s. 35(d).
[43] There may well be circumstances where it would be reasonable for a car owner to pull another person off the hood of his or her car in order to be able to drive away safely. However, when I consider all of the circumstances of this event, I am satisfied beyond a reasonable doubt that Mr. L.’s use of force was not reasonable.
[44] This was not a situation where Mr. L. was confronted with a stranger or someone posing a threat to him clinging to the front of his car. Rather, it was his angry spouse doing so during a domestic dispute. He had alternative courses of action available, especially reasoning with her and persuading her to get off the car. Notably, his use of force failed to deter her from climbing on the hood of his car again and it was negotiation and persuasion that eventually worked.
[45] I accept that Mr. L. did not intend to hurt his wife and did not intentionally throw her down to the ground, but her injuries were a predictable consequence of pulling a resisting person from the hood of a car by her waist. While Ms. J. was preventing Mr. L. from using his car to go to the party which he was entitled to do, there was no real threat to him or to the car itself. In those circumstances, I cannot accept that it was reasonable to use force on his spouse that exposed her to a significant risk of non-trivial injury. In my view, courts should be slow to condone the use of significant force in the domestic context in circumstances where all that is at stake is the defence of one’s use of property. I find Mr. L. guilty of count 3.
Counts 5 and 6: the phone incident
[46] I accept Mr. L.’s evidence that the phone incident was precipitated by his discovery that his second cell phone was missing and that he reasonably believed Ms. J. had taken it. It is clear from the video of the incident that Mr. L. was demanding his phone back and Ms. J. and Ms. D. also recalled this. While Ms. J.’s evidence was that this demand was nonsensical because his phone was in his room, I accept that he had two phones and that Ms. J. probably took the second phone and was disingenuous in her evidence when she claimed to not understand why Mr. L. was asking for his phone.
[47] I also accept Mr. L.’s evidence that Ms. J. repeatedly bit and injured him during this incident and reject Ms. J.’s denials on this subject. Mr. L.’s evidence is compellingly corroborated by the photos of his injuries and the video, where he clearly mentions being bitten at a time when he did not know that he was being recorded. I have more difficulty however with his evidence that his own bite only came in response to Ms. J.’s bites. This is inconsistent with Ms. D.’s evidence.
[48] Ms. D. was a very credible witness. She clearly still cares for Mr. L. and it was obvious that she found testifying to be emotionally difficult for this reason. She gave no sense whatsoever of trying to assist either the Crown or the defence and I find that she was doing her best to honestly relay what she remembered.
[49] The defence challenged Ms. D.’s reliability and I agree that she occasionally said that she saw things when in fact she had simply inferred that they took place. For example, she described seeing Mr. L. push Ms. J. on the floor when the video makes clear that she simply saw Ms. J. fall backwards and it is possible that this was caused by the door being closed in her face while she tried to force it open. Nonetheless, I am inclined to accept Ms. D.’s evidence that Mr. L. bit Ms. J. in front of her in the children’s bedroom and that Ms. J. had not yet bitten him at this point. In any event, I need not finally decide if I can rely on this aspect of her evidence beyond a reasonable doubt because I am satisfied that even on Mr. L.’s own account, he did not act in lawful self-defence when he bit Ms. J.
[50] Viewed in isolation, where Mr. L. was himself being bitten deeply in the arm by Ms. J., it might appear entirely proportionate and reasonably defensive to bite her on the shoulder to force her to release her own bite. However, my task in applying s. 34 of the Criminal Code is not to view this event in isolation. I must have regard to all of the circumstances including Mr. L.’s role in the incident and the availability of other means to respond to the use of force. This involves a broad assessment of his exercises of judgment throughout the relevant events: R. v. Khill, 2021 SCC 37. When I consider his bite in that context, I find beyond a reasonable doubt that it was not reasonable.
[51] While he may have been provoked by Ms. J. taking his phone, Mr. L. initiated a physical confrontation by snatching her own phone from her. Moreover, he did this in front of their children. While H. may have been asleep, the effect this act and the ensuing struggle had on Ms. D. was apparent when she testified. Mr. L. effectively initiated a physical struggle with his spouse in front of a young adult for whom he had taken on a parental role, causing her distress and a real and well-founded fear that her parents would hurt each other.
[52] Mr. L. had an alternative course of action available to him throughout the physical struggle. He knew he could end it at any time by returning Ms. J.’s phone to her. This is what he eventually did even though he never got his own phone back. He explained this decision by saying that he concluded that “it wasn’t worth it” given the presence of the children among other factors. I take this to be, in effect, an acknowledgement that he realized that night that he was not being reasonable. I agree. There was nothing reasonable about either his own or Ms. J.’s conduct that night. They both had a responsibility to deal with their disagreements in a mature and non-violent way. This was a responsibility they owed not only to each other but especially to their daughters.
[53] I accordingly find Mr. L. guilty of assault causing bodily harm. I also find him guilty of mischief to property by virtue of his briefly denying Ms. J. the use of her phone. I find that de minimis non curat lex, assuming that it constitutes a valid common law defence, cannot apply here to preclude a conviction. While in many ways Mr. L.’s conduct in taking Ms. J.’s phone to try to secure the return of his own is not particularly serious, I again have to consider it in its full context including its effect on the children present: R. v. Kubassek (2004) 2004 7571 (ON CA), 188 C.C.C. (3d) 307 (Ont. C.A) at para. 23-24. When placed in that context I find that this behaviour was not “trifling.”
[54] I appreciate that Mr. L. may reasonably feel that Ms. J. is equally guilty of the same conduct against him arising from this interaction, but that is not an issue for me to decide on this trial. My task is only to determine if the Crown has proven the charges in the indictment beyond a reasonable doubt, and I find that counts 5 and 6 are proven on that standard.
Count 4: the alleged sexual assault.
[55] There was nothing about Ms. J.’s description of the alleged sexual assault, viewed in isolation, that would cause me to doubt its truth. However, my assessment of her credibility must be based on the whole of the evidence rather than compartmentalized count-to-count: R. v. W.D.D. 2008 ONCA 755. I find that she gave deliberately false evidence about the car incident, grossly exaggerating what happened in order to get Mr. L. into trouble. I also find that she lied about her role in the phone incident. Given these findings, I am not prepared to rely on her unsupported word beyond a reasonable doubt on count 4, especially in the face of Mr. L.’s denials. Mr. L. will be found not guilty of sexual assault.
Disposition
[56] Mr. L. is found not guilty of counts 1, 2, and 4 and guilty of counts 3, 5, and 6.
Dineen J.
Released: May 2, 2024
COURT FILE NO.: CR-23-50000166-0000
DATE: 2024-05-02
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
L.C.L.
REASONS FOR JUDGMENT
Dineen J.
Released: May 2, 2024