R. v. Mendes, 2016 ONCJ 478

Court File No. 1211-998-14-685-00 DATE: 2016-06-13 CITATION: R. v. Mendes , 2016 ONCJ 478 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JUSTIN MENDES REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE D. HARRIS On June 13, 2016, at BURLINGTON, Ontario APPEARANCES: M. Ward Counsel for the Crown J. Mendes In Person ONTARIO COURT OF JUSTICE TABLE OF CONTENTS

Transcript Ordered: June 15, 2016 Transcript Completed: June 30, 2016 Ordering Party Notified: June 30, 2016 MONDAY, JUNE 13, 2016 R E A S O N S F O R J U D G M E N T HARRIS, J. (Orally) Justin Carlos Mendes is charged with a number of offences, all involving the same complainant, his wife Crystal Kruikemeijer. Choking is an indictable offence. Crown counsel elected to proceed by indictment with respect to all of the other charges. Mr. Mendes elected to be tried in the Ontario Court of Justice. The charges against him are alleged to have occurred on two separate days. Mr.

Mendes faces charges of assault, unlawful confinement, choking, threatening death and mischief, all of which are alleged to have occurred on September 1, 2013. Mr. Mendes pled guilty to the mischief charge. He pled not guilty to all of the other charges. He also faces three counts of mischief, which are alleged to have occurred on November 3, 2013. He pled guilty to two of these and not guilty to the third one.

Ms. Kruikemeijer and Teresa McGill both testified during the Crown’s case with respect to the charges for which not guilty pleas wereentered. Crown counsel then applied to admit evidence of other discredible conduct on the part of Mr. Mendes. I dismissed thatapplication at R. v. Mendes, [2015] O.J. No. 6340. Crown counsel then closed her case. Mr. Mendes then began to testify. Part way through his examination in-chief, Crown counsel interrupted counsel for Mr. Mendes todiscuss something that had come up. We took a short recess so that the two counsel could discuss this matter further.

We thenadjourned the trial to another date so that they can discuss the matter even further still. That led to a series of adjournments. In the meantime, counsel enlisted the aid of Justice LeDressay and conducted mid-trial discussions. These failed to resolve the issue andcounsel for Mr. Mendes brought an application before me requesting that I declare a mistrial. When that application was heard, a different Crown counsel appeared. He made certain undertakings, which led counsel for Mr.Mendes to abandon the application for a mistrial.

Both counsel then requested that I adjourn the matter so that they could have furtherdiscussions with the renewed assistance of Justice LeDressay. Those discussions again failed to bring about a resolution of the case; instead counsel for Mr. Mendes then brought an application beforeme to be removed as counsel of record. I allowed that application. The case was then adjourned from time to time to allow Mr. Mendesto retain other counsel. He was unsuccessful in that regard and we resumed the trial with Mr. Mendes representing himself.

He completed his evidence in-chiefand was cross-examined by yet another Crown counsel. Mr. Mendes called no other witnesses and Crown counsel offered no evidencein reply. I then heard submissions from Crown counsel and from Mr. Mendes. The issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Mendes is guilty of the remaining charges. Tothat end, Ms. Kruikemeijer testified that Mr. Mendes did do all of the things that he was charged with. Mr. Mendes testified that he didnot.

As a result, I must be mindful of the direction provided to me by the Supreme Court of Canada in R. v W(D), (SCC),[1991] 1 S.C.R. 742. If I believe the testimony of Mr. Mendes, I must find him not guilty. Even if I do not believe his testimony; if itleaves me with a reasonable doubt about his guilt, then I must find him not guilty. If I do not know whom to believe, it means that I havea reasonable doubt, and I must find him not guilty.

Finally, even if his testimony does not leave me with a reasonable doubt about hisguilt, if after considering all of the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit. While conducting this analysis of the evidence, I must be mindful that Mr. Mendes, like every other person charged with a crime ispresumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. He did not have to present evidenceor prove anything.

It is not enough for me to believe that he is probably or likely guilty; proof of probable or likely guilt is not proof ofguilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is notrequired to do so. However I must remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance ofprobabilities and for that I rely on the comments of the Supreme Court of Canada in R. v. Starr, [2000] 2 S.C.J. No. 40 at paragraph 242. This is a tough standard and it is so tough for very good reason.

As Justice Corey said in R. v. Lifchus, [1997] 3 S.C.J. No. 77 atparagraph 13, The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principle safeguards whichseeks to ensure that no innocent person is convicted.

I did not believe Mr. Mendes. His evidence did not leave me with a reasonable doubt as to his guilt. Before I go into the reasons why I did not believe Mr. Mendes, though, I wish to address something that I did not take into account in reaching that conclusion. In her submissions, Crown counsel made much of the way that Mr. Mendes answered questions. I refer here to his use of phrases like “I don't believe” or “I believe” or “not to my recollection”. She suggested that these showed that he really did not remember what had happened.

I noted these answers myself and I shared Crown counsel’s concern to some degree but after reviewing his evidence several times in its entirety, I am not satisfied that this was anything more that Mr. Mendes way of speaking while given evidence. Accordingly, I have not read anything into those particular answers. Having said that, though, Mr. Mendes evidence simply was not reliable. He was intoxicated by alcohol on both of occasions. Even Mr. Mendes admitted that he was intoxicated, although he took the position he was not “that intoxicated”. He certainly was not blackout drunk. He knew what he was doing.

So what was he doing? On the first occasion he was “whacking” the wall with sufficient force that he punched and kicked holes in it. Why did he do this? It was to “coax the right answer out of her”. When pressed on what he meant by this during cross-examination, he said that his actions might scare her into admitting what she did. So he was intoxicated enough that he thought that punching walls and saying vulgar and demeaning things to Ms. Kruikemeijer was a good way to get her to say what he wanted to hear.

He also threatened to post her photo on a social media site, Reddit, and ask if anyone had seen her stripping or acting as an escort. He threatened to do this in order to get her to admit that she had once been a stripper and an escort. This, too, strikes me as the reasoning one might expect from someone who was highly intoxicated. Now, in his evidence, Mr. Mendes testified that while he threatened to do this, he would never have actually carried out his threat. In fact, he could not have done so because he did not have any incriminating pictures of her. That explanation breaks down quickly, though.

He did not have any incriminating evidence, true, but his stated goal was to obtain such evidence. To do that, he needed only to post a regular picture of Ms. Kruikemeijer along with his inquiry as to whether anyone had seen this woman stripping or working as an escort. If someone replied affirmatively, he would have his proof. If not, she would certainly be humiliated before everyone else in any event. This, too, is consistent with the reasoning of a mean and ugly drunk. On the second occasion Mr. Mendes punched the dashboard of Ms. Kruikemeijer’s car hard enough that he damaged it.

He threw the food they had just bought at McDonald’s out of the car window. He threw her floor mat out of the car window. He did all of this with a four year old child crying in the back seat of the car. Again, he stated that he was well aware of what he was doing. He stated that he did these things to get a rise out of Ms. Kruikemeijer. He then kicked the laundry room door when they got home. He did not mean to break it but he kicked with just a little too much force and his foot did go in. He then egged her on to call the police.

He positioned himself between her and the entrance to her son’s bedroom, just to make her mad, just to annoy her. He was rude to the police officers when they arrived. He had a little bit of attitude towards them. None of this was the result of him drinking. It was caused by her divulging personal information to his friend’s parents that evening. He testified that on that occasion he had only consumed two tall boys of beer. He further testified that on the first occasion he had only consumed two glasses or four ounces in all of scotch.

He was drunk enough to do the things described above after drinking these small quantities of alcohol. I did not believe that.

Even Mr. Mendes testified that it takes more to get an alcoholic drunk and that he was, in fact, an alcoholic. He also testified that he never got drunk on scotch; to do so would be a “waste” and a “travesty”. He sipped his scotch. I did not believe that either, coming from this self-admitted, binge drinking alcoholic. In

summary, then, Mr. Mendes agreed with Ms. Kruikemeijer that he was drinking on both occasions but he disagreed with her as to how much he had to drink. She testified that on the first occasion he drank most of 750mL bottle of scotch. She was uncertain about the exact quantities on the second occasion but stated that he had consumed quite a few drinks and he was highly intoxicated. I am satisfied beyond a reasonable doubt that Mr. Mendes was highly intoxicated that night. He was intoxicated to the point that he would likely have difficulty remembering what happened. I also note that Mr.

Mendes now has ample motive to recall the events in the manner that he has described. Mr. Mendes agreed that he was angry enough to knock holes in the wall on the first occasion and to threaten to put Ms. Kruikemeijer’s photo on Reddit. He agreed that on the second occasion he was angry enough that he threw things out of the car window and punched the dashboard. He kicked a hole in the laundry room door, once back home, and taunted Ms. Kruikemeijer while blocking her from access to her son’s bedroom. He behaved badly when dealing with the police.

He agreed he told her the story about assaulting a previous girlfriend and how, in order to get back her, he made false accusations against that girlfriend after biting his own arm to create injuries for the police. He only disagreed with Ms. Kruikemeijer about how drunk he was on those two occasions. He also disagreed with her accusing him of assaulting her or threatening her or preventing her from doing anything or going anywhere or placing his hands on her neck and pressing to the point where she could not breathe. He also disagreed with her accusing him of damaging her cell phone on the second occasion. Ms.

Kruikemeijer testified that on the first occasion he threatened to kick her in the head and actually delivered kicks, which stopped about six inches from her head. When she tried to leave the room, he grabbed her and threw her onto the couch and ottoman set. He told her to defend herself and then punched her in the ribs and threw her around. He overturned the couch, punching a hole in the wall. I note that while Mr. Mendes denies this, he said that he did cause the holes in the wall, but did so by kicking and punching. When Ms.

Kruikemeijer was on the floor, he kicked her several times in the stomach area and ribs. At one point he placed his hands around her neck and slammed her head into the floor. He pressed on her neck to the point where she could not breathe. He taunted her, then, saying “It would be this easy to kill you” and “you can't get away” and “you can't do anything”. Whenever she tried to move towards the door, he grabbed her and stopped her. In that regard, he alternated between telling her to get out and refusing to let her leave. He grabbed her at one point and pulled her across the floor.

This caused carpet burns on both elbows. These had turned into scabs by the next day when they were observed by Teresa McGill. Ms. Kruikemeijer testified that on the second occasion Mr. Mendes was also highly intoxicated and that amongst the other things that he did that night, he did damage the dashboard of her car, he kicked a hole in the laundry room door, and he also broke the screen on her Blackberry cell phone. I believe Ms. Kruikemeijer. There was no suggestion that her perception of events was clouded in any way by the consumption of too much alcohol. She showed surprisingly little animus toward Mr.

Mendes other than with respect to his abusive behaviour when he was drunk. She indicated that he was a very different person when he was sober. She indicated that he was someone she cared for and that she was concerned about the effect the criminal charges would have on his career aspirations as an early child educator. I contrast this to the evidence of Mr. Mendes who said nothing positive about Ms. Kruikemeijer. She was a liar. She was a thief. Everything that occurred those two nights was her fault.

Her statement that he grabbed her and stopped her from leaving the room at least 25 times caused me some concern that she might be tending towards over exaggeration but she admitted that she had not been counting. She said that he caused the holes in the wall when he overturned the sofa. It was Mr. Mendes who said that he was so angry that he whacked the wall directly with his fist and his foot. Ms. Kruikemeijer had to be pressed, almost led by Crown counsel, to point out that his hands around her neck made it difficult for her to

breathe. Her evidence was corroborated to some extent by that of Teresa McGill. Ms. McGill had raised Ms. Kruikemeijer since she was four years old and considered her to be her daughter. She observed the scrapes or scabs on Ms. Kruikemeijer’s arms the day after the first occasion. Ms. Kruikemeijer’s evidence was also corroborated to a large extent by the evidence given by Mr. Mendes. I have already summarized most of this and will not repeat it again here. With respect to the damage to the cell phone, Ms. Kruikemeijer testified that Mr.

Mendes apologized to her at the time and that he subsequently had the cell phone repaired. Mr. Mendes never addressed those statements. He simply stated that he did not damage the phone. He did testify that he had been very upset that Ms. Kruikemeijer had two cell phones, believing that the second one was being used to go back into stripping and her escort business. In conclusion, I did not believe Mr. Mendes. I did not believe Mr. Mendes for all of the above reasons. His evidence did not leave me with a reasonable doubt as to his guilt.

Finally, based on the facts that I do accept, I am satisfied that the Crown has proven the following beyond a reasonable doubt: 1 . Mr. Mendes did assault Crystal Kruikemeijer on September 1, 2013, contrary to s. 266 of the Criminal Code . 2 . On the same date, he physically prevented her from moving freely about their apartment and from leaving that apartment, thereby confining her, contrary to s. 279(2) of the Criminal Code . 3 .

On the same date he placed his hands on her throat and pressed to the point where she could not breathe while saying “you can't get away”, thereby committing the offence of choking with the intent to enable himself to commit the indictable offence of forcible confinement, contrary to s. 246 (

a) of the Criminal Code . 4 . On the same day he threatened death to Crystal Kruikemeijer, contrary to s. 264.1(1) (

a) of the Criminal Code . 5 . On the same day he damaged her apartment walls, committing mischief, contrary to s. 430(4) of the Criminal Code . 6 . On November 3, 2013 he damaged her vehicle, committing mischief, contrary to s. 430(4) of the Criminal Code . 7 . On the same day he damaged her laundry room door, thereby committing mischief, contrary to s. 430(4) of the Criminal Code . 8 . On the same day he damaged her cell phone, thereby committing mischief, contrary to s. 430(4) of the Criminal Code . I find him guilty of all of these offences and convictions will be registered.

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2) I, Helena Tsapoitis-Barbesin , certify that this document is a true and accurate transcript of the recording of R. v.

Justin Mendes , in the Ontario Court of Justice, held at 2021 Plains Road East , Burlington, Ontario, taken from 1213_11_20160613_081056__6_HARRISDAV.dcr , dated June 13, 2016 which has been certified in Form 1 by Eva Anderson. ______________________________ ________________________________________ Date (Signature of Certified Transcriptionist) Helena Tsapoitis-Barbesin ACT ID# 2372561617 1-855-433-2743 hbarbesintranscripts@vptranscription.com *This certificate does not apply to the Reasons for Judgment which has been judicially edited.