R v Toews, 2023 MBPC 14

CITATION : R v Toews , 2023 MBPC 14 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) J. Negrea ) for the Crown – and – ) ) Glen Toews ) C. Schaan ) for the Accused ) Accused ) Reasons for Decision ) Delivered: April 6, 2023 C.A. Devine, P.J. [ 1 ] Mr. Toews was charged with assault causing bodily harm, which occurred on June 24, 2021 in the context of a domestic relationship. He argues that although Ms. Bayne had injuries, he did not cause them.

Rather, he alleges that she attacked him and fell against the overhead garage door, accidentally injuring herself. [ 2 ] Photographs and medical reports showing and detailing Ms. Bayne’s injuries were filed by consent. She suffered from a depressed fracture of her nasal bone, a deviated septum, two black eyes, the area between the upper lip and nose was heavily swollen and bruised, her upper chest was swollen and bruised, she had a reddened, swollen left cheek and neck, and lacerations and bruising to her left lower arm. She suffered from facial pain and headaches for some period of time after.

The area between her upper lip and her nose developed a lump; her dentist sent her to a dental surgeon who determined it was scar tissue. It took a year to resolve. She suffered from parasternal pain for some time when she coughed. Two weeks after the incident she lost a tooth related to mechanical force. [ 3 ] Mr. Toews and Ms Bayne met in 2013, began living together in 2014, married in 2016 and separated in February 2020. Although they tried to mend the relationship several times after the breakup, those attempts were not successful. During the latter period of time they were not living together.

They had their own residences, but spent significant time at each other’s homes. [ 4 ] They are both mature adults. Ms. Bayne’s age was not disclosed during the trial, but she is retired. Mr. Toews is 62 years old and also retired. Ms. Bayne is five feet, four inches tall and weighed 135 pounds at the time of the incident. Mr. Toews is 6’3” tall and weighed 215 pounds. [ 5 ] There are currently family law proceedings concerning financial and property matters between the parties. [ 6 ] On June 24, 2021, Mr. Toews drove over from his place to Ms. Bayne’s place to discuss their relationship.

The Crown’s Case [ 7 ] Ms. Bayne testified that she did not feel like seeing him or discussing things that night; she was reluctant, but she did not forbid him from coming over. She had concerns that he had been seeing another woman, which he denied. She also wanted him to buy into her condo if they were going to continue to live together. To date, he had not agreed. [ 8 ] After discussing things for about two hours, Ms Bayne stated that if he did not want to buy into her condo, then he could live at his place and she would live at her place.

She was not willing to have him move back in without a financial contribution. She testified that he erupted and reacted and took it to mean she was breaking up with him. “[H]e got really disturbed and excited and started yelling and screaming, and kind of a rage mode.” He was almost in tears he was so enraged. He got up and started getting his clothes from the bedroom. [ 9 ] Ms. Bayne testified that she left, because she did not want to be around that behaviour. Mr. Toews had a history of rage and explosiveness. She drove to his place to retrieve things from there. It is a half-hour drive one way.

She took the clothes, shoes and cosmetics that were at his place and also his wedding ring, which she testified she was not proud of. She denied taking any of his pension or income tax documents, stating she already had his tax returns from when they initially split up. She drove back home, now over an hour later. [ 10 ] She was surprised to see that Mr. Toews’ truck was still in her garage, since he had very few things left at her place – some clothes, fishing rods and gardening tools. He had previously removed all his kitchen things and other household items when he moved back into his place in February.

She found it “unsettling” that he was still there. [ 11 ] She parked in the garage, beside the truck. He was there beside his truck, but they did not speak. She walked into her condo to find that every cupboard and drawer was open and there were kitchen things on the floor and pens had been dumped, “like somebody robbed me”. She was very upset and confronted him in the garage. Her memory is that she said, voice raised, “What the hell are you

doing? What is wrong with you?” [ 12 ] She poked him in the chest with her index finger, only once, she was firm on that. She also closed the overhead garage door, because she had been embarrassed in the past that the neighbours could hear his loud rages and yelling. [ 13 ] Mr. Toews put his cell phone in her face to videotape her. She pushed it away, knocking it to the garage floor. He had done that before. He grabbed her wrists and pushed her back towards the overhead door. Although she struggled to get free, she could not and he slammed the back of her head into the garage door. [ 14 ] Ms.

Bayne testified that she then had a gap in her memory and the next thing she remembered was her face being slammed two or three times into the drywall in the garage. She grabbed her mouth, thinking that her top front teeth would be broken. She remembered saying, “Oh God, oh my God,” and rushing into the house to the bathroom. Her teeth were not broken, but then her nose started bleeding profusely. She laid on the bathroom floor. There was a huge pool of blood from her nose. [ 15 ] A minute or two later Mr.

Toews came into the house and stood at the bathroom door and asked if there was anything he could help her with. She asked him to call an ambulance and he answered, “No, I can’t do that.” He left. Despite putting cloths against her nose, the bleeding did not stop, so she decided to drive herself to the hospital. A few blocks into her drive, the bleeding slowed considerably, so she decided to return home. [ 16 ] Mr. Toews was gone. [ 17 ] Evidence from the police was filed as part of an agreed statement of facts. Ms.

Bayne called police, who arrived at about 1:00 a.m. and saw that her nose was bleeding and swollen, her face was bloody and swollen, she was holding a cloth against her nose and she was upset and in pain. [ 18 ] Police called for an ambulance. [ 19 ] While the officers were taking Ms. Bayne’s statement, Mr. Toews called and texted several times. [ 20 ] The police went to Mr. Toews’ address but he was not home. As they were leaving, they saw his vehicle coming towards his home. They made a u-turn and activated their lights and siren. He did not stop.

He finally parked in front of an address four blocks from his home, although there were numerous spots to park in front of his home. [ 21 ] He was arrested. He told police that Ms. Bayne attacked him. He told them his face was covered in scratches from her and that his clothes were all ripped up from her attack. He told them he could not call them because she broke his phone. [ 22 ] Police examined his face and clothing for scratches and rips. There were none. The Defence Case [ 23 ] Mr. Toews testified that he and Ms.

Bayne were discussing a more permanent living-together relationship and the issues she had with him. He agreed that it was a tense conversation, but that voices were not raised at that point. He testified that after about two hours she said she wanted them to split up permanently. [ 24 ] He testified that at that point they were both trying to make their points and were talking loudly. He stated he was not upset, more annoyed. He disagreed that he was in a rage. [ 25 ] He testified that he acknowledged her decision and started gathering up his belongings.

She left. [ 26 ] He testified at length about the amount of property at her place: a six-foot breadth of clothing in the closet, garden supplies, musical supplies, tools, kitchen utensils, pots and pans, a pizza pan, blenders and food. He described it as a “massive amount of stuff”. He stated that the box of his truck was “full” and “quite packed” with all the items. [ 27 ] He testified that when Ms. Bayne returned she accused him of taking her things and was looking at the items he took and he told her that she could have it if she wanted to.

He testified that she was “hot” and “very agitated,” and that she was going into the truck box and throwing his possessions up in the air. [ 28 ] He testified that she then closed the garage door on him. “I was in a confined area, and she had done that to trap me and confront me.” [ 29 ] And then she started back towards him and poked him in the chest numerous times. [ 30 ] He backed off. [ 31 ] He testified that he had seen this behaviour before and so he started videotaping her, “because in the past this has worked to settle her down by recording her”. [ 32 ] He testified she also was punching him, maybe one punch, to his chest. [ 33 ] That is when he grabbed her wrists to stop her from hitting him and attacking him.

Then she tried to knee him in the groin. He testified that “the only way to stop that has generally been to push her so she can’t knee [him]”. [ 34 ] He further testified: I just stop her from doing that. I'm pushing her back towards the garage overhead door, and she's trying to manoeuvre around to get at

me, and twisting and turning, and -- as best as possible, and I'm still pushing her back to stop her. [35] She was continuing to try to knee him and he did not want her to hit him again, so he was pushing her backwards into theoverhead door to get her away from him. [36] He testified that it was possible that the back of her head hit the garage door. [37] He theorized that somehow she suffered the broken nose when her nose hit one of the four-inch long, extended bracing ribs onthe metal overhead door. [38] Then he said she started crying and he thinks she said, “I hurt my nose” or something like that and he saw some blood drop onthe concrete floor. [39] He let go of her hands then, because she had stopped trying to knee him and attack him.

He asked if he could help her and shedecided to go into the house to see what had happened. [40] When he went into the house and saw her in the bathroom her nose was bleeding. He asked if he could help, she said no, so hewalked back to the garage. She did not ask him to call an ambulance. Then she left in her car, “I would assume to the hospital.” [41] He continued to put things in his truck, then left. [42] He testified that he wanted to report what happened to police, but Ms. Bayne had smashed his phone, so he drove aroundlooking for a convenience store or pay phone to call from.

He eventually drove to a district police station and sat in the waiting room fora half-hour and no one came. [43] He drove home and saw the police behind him as he was nearing his home and he did not want to appear like he was evadingthem, so he parked in the spot where they arrested him. [44] He testified that he noticed that his wedding ring as well as pension and income tax documents were missing a few days later. Analysis of Testimonial Evidence in Canadian Law [45] Because Mr.

Toews testified, I have analyzed and weighed the credibility and reliability of the evidence in the mannerrecommended by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742, and the Manitoba Court ofAppeal in R v Menow, 2013 MBCA 72. [46] Justice Cameron explained the “W.(D.)” analysis in Menow, at paragraph 16: In W.(D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidenceor the Crown’s evidence” (at p. 757).

Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is leftwith a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focussed on the principle of reasonable doubt,the court suggested that the following analysis be undertaken (at p. 758): 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [47] This method safeguards the foundational principle in Canadian criminal law that an accused person is presumed innocent. [48] Justice Karakatsanis writing for the Supreme Court in R v Vuradin, 2013 SCC 38 at paragraph 21, stated as follows: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758.

The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8. [49] A judge must assess all the witnesses’ evidence in terms of its inherent reliability and the likelihood that the events happenedas the witnesses testified to them happening. [50] At the end of the analysis, I must be satisfied beyond a reasonable doubt that Mr.

Toews assaulted Ms. Bayne and caused herbodily harm. If I believe Mr. Toews’ story about how Ms. Bayne sustained the injuries to her face and body, I must acquit him of theassault. If his story raises a reasonable doubt, I must acquit him of the assault. If I do not believe his story, and it does not raise areasonable doubt, I must still, considering all the evidence in the trial, be satisfied beyond a reasonable doubt that he committed theassault. Analysis of the Evidence in this Case [51] This matter will be resolved at the first two stages of the inquiry. I do not believe Mr.

Toews and his evidence does not raise a

reasonable doubt (for example, her throwing his things in the truck box “in the air”). [ 52 ] Mr. Toews’ story was fanciful and tailored to the complainant’s testimony as a parallel but fictionalized alternative. [ 53 ] His evidence was unclear, argumentative, exaggerated (for example, the “full” truck of his belongings), and he speculated about how things happened. [ 54 ] He was emotional and became loud during his testimony, several times. [ 55 ] He contradicted himself.

For example, he initially testified that his knees were scraped, then he testified that one knee was scraped, then he testified that his shin was scraped. I do not believe any part of his legs were scraped. [ 56 ] There were examples where he tailored his evidence to try to explain away the contradictions. For example, he told the police his shirt was ripped, but they looked for rips and saw none. At trial he testified that a button got ripped off. Similarly, he told police he had scratches on his face; they looked and there were no scratches.

At trial he testified that he could feel them, even though they were not visible. [ 57 ] He testified to several things that had not been asked of the complainant, to which I therefore ascribe little or no weight: - her taking things out of his truck box and throwing them in the air - that she had poked him in the chest quite a few times before this occasion - that he videotaped her in the past to get her to stop poking him in the chest - that in the past he has pushed her so that she could not knee him in the groin - his knees or knee or shin were scraped - on cross examination he testified that these injuries occurred somehow on the mudflaps on the back of his truck - his face was red from her trying to hit him in the face - he described the overhead door in the garage as being made of metal with four-inch ribs sticking out; Ms.

Bayne had testified that the door was made of wood - that there was blood on the garage floor [ 58 ] Essentially, he concocted a story that Ms. Bayne attacked him; he went far to describe her as violent and emotional. [ 59 ] Most importantly, his version of events makes no sense. Even if she was the aggressor, which I do not accept, I fail to see how she represented a threat to him. Ms. Bayne is one foot shorter and almost 100 pounds lighter than him. [ 60 ] I do not believe most of Mr. Toews’ evidence. Ultimately, I reject his version of events. It is not likely that Ms.

Bayne could have broken her nose and received all the injuries she did according to his version of events, that he was holding her wrists and pushing her backwards towards and against the overhead door, and that somehow her squirming to get her wrists free resulted in a broken nose and serious impacts to her mouth, bruising to her chest and cuts to her arm. His description of the overhead door is inconsistent with Ms. Bayne’s description of it.

Moreover, her recollection is that she became cognizant after a brief black-out with her face being slammed against the drywall on the side of the garage and her immediate thought was that her front teeth had been knocked out. [ 61 ] Ms. Bayne’s description of what occurred and the nature of her injuries outlined in the medical reports and visible in the photos, are not consistent with a fall as described by Mr. Toews. There was no one else present. The only reasonable explanation for the injuries was offered by Ms. Bayne. [ 62 ] The difference in size and physical ability alone militates against Mr.

Toews’ version that he was protecting himself from the attack by Ms. Bayne. Moreover, she had a bad knee at the time and has undergone knee replacement surgery since this occurred. [ 63 ] His behaviour towards her when she was lying on the bathroom floor with a profusely bleeding nose and a pool of blood, even by his account, is not consistent with her accidentally hurting herself. He walked away and continued to put things in his truck. I believe her evidence, that she asked him to call an ambulance and he told her he could not do that and walked away.

If this was an accident, I find it difficult to believe he would not help her. [ 64 ] He testified to driving around Winnipeg essentially for hours, looking for a phone booth to call the police about the attack on him. He testified that he went into the police district building in Transcona and waited there for a half-hour and no one came. He did all this because his phone was broken and did not work. Meanwhile, the police witnessed several phone calls from him to Ms.

Bayne’s phone while they were taking her statement. [ 65 ] I do not believe he tried to contact the police, except perhaps to get ahead of the story and claim to be the victim. It is difficult to believe that he sat in a police district station for half-an-hour without any police coming to see what he was doing there. [ 66 ] His desire to “report it” is inconsistent with his observed avoidance of the police when they came to arrest him. [ 67 ] In fact, he testified that he knew the police were looking for him and coming to see him.

This is consistent with a guilty mind, not with a victim hoping to make a report to the police about being assaulted.

[ 68 ] He had no injuries. There was nothing to corroborate his testimony that he went to the police station. [ 69 ] He described nothing that would account for Ms. Bayne’s injuries. [ 70 ] Ms. Bayne’s version of events is plausible and believable. The moment when she began describing the assault her demeanor changed. The testimony is as follows: Q Do you -- do you remember how hard you poked him? A Not very hard. Q Okay. And how did he react? What did he do? A Not good. [ 71 ] Before speaking the words “Not good,” Ms. Bayne paused and became very quiet while she was testifying.

She appeared very sad or distressed. She also testified about moving away from Winnipeg nearer to family because she was afraid he would “come back and try and finish the job”. Her fear was palpable. [ 72 ] Ms. Bayne was somewhat argumentative in her evidence. Both parties attempted to put the other in a bad light. At the same time, Ms. Bayne did not avoid difficult evidence that did not put her in a good light, such as poking him in the chest and taking back his wedding ring. I think it is possible that Ms. Bayne poked Mr.

Toews in the chest more than one time, given how upset and angry she was. [ 73 ] None of these imperfections in her evidence rise to the level of deficiencies that would affect my certainty about the assaultive behaviour of Mr. Toews however. [ 74 ] I believe Ms. Bayne’s evidence that she did not hit him in the chest nor attempt to knee him, given her bad knee, but also that her evidence was consistent on these points, although tested on cross-examination. Her evidence about the nature of their relationship, the history of Mr.

Toews’ explosive rages, his loudness such that she was embarrassed the neighbours would hear, is consistent with how she described his behaviour that night. [ 75 ] All of the evidence in the trial convinces me beyond a reasonable doubt that Mr. Toews first pushed Ms. Bayne against the overhead garage door, striking the back of her head against it, and then slammed her face two to three times against the wall of the garage, causing significant injuries. During this “tussle” as Mr. Toews euphemistically called his assault on Ms.

Bayne, I am satisfied that she also incurred the injuries to her chest and arm. [ 76 ] Mr. Toews is convicted of assault causing bodily harm. Original signed by Judge Devine C.A. Devine, P.J.