R. v. Belzil, 2015 ONCJ 658

COURT FILE No.: 15-002091 CITATION: R. v. Belzil, 2015 ONCJ 658 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MATTHEW BELZIL Before Justice Robert S. Gee Heard in St. Catharines on February 9 & 10, April 10 and September 29, 2015 Reasons for Judgment Released in Brantford November 24, 2015 D. King ……............................................................................................. for the Crown A. McKay / C. Brannagan …............................................................... for the Accused INTRODUCTION [1] The accused, Matthew Belzil, is a Niagara Regional police officer.

The complainant, Jera Belzil is also a Niagara Regionalpolice officer. Mr. Belzil is alleged to have assaulted Ms. Belzil on November 25, 2013. On that date, the two were married but Ms.Belzil had recently commenced proceedings to end their marriage. Notwithstanding this, the parties were still cohabitating in thematrimonial home. [2] The trial of this matter commenced on February 9, 2015. It continued on February 10, April 10 and September 29, 2015. Everyday in courtrooms across the province cases like this are heard. The allegations were not overly complex.

There were no Charterapplications nor were there any complex legal issues at play. This is a trial that should have started and finished on February 9, 2015 yethere we are some nine and a half months later, hearing judgment today. [3] Much of the time this trial took was a result of an all-out, multi-pronged personal attack by the defence on the complainant,couched in terms of an attack on her credibility. There were requests for records made several weeks prior to the incident of officers notinvolved in the investigation.

These records fell under the third party records regime and in any event appeared to have negligiblerelevance. Much time was taken by the accused attempting to demonstrate the complainant had, again at some time prior to the incident,improperly stored her police-issued firearm at their house.

As well, considerable time was spent by the defence arguing about their rightto call, question and have access to the notes of another officer of the Niagara Regional Police Services (“NRPS”), again one notinvolved in the investigation, to prove he and the complainant were involved in an intimate relationship at the time. [4] I do not know if this approach was dictated by instructions from the accused or was designed by counsel, or some combinationthereof. In the end it was decidedly unhelpful and only served to waste time and prolong this matter by many months.

In fact, as willbecome clear from these reasons shortly, this approach has left me with a much less favourable opinion of the accused than I wouldlikely have had otherwise, if this matter had focussed less as an attack on the complainant and more on the real issue raised by the facts. [5] As stated earlier, this was not an overly complex case. What everybody agrees on, is that around midnight on the night inquestion, a violent confrontation took place between the accused and the complainant.

The complainant alleges the accused was theaggressor and that he chased her about the house and assaulted her, causing her to punch him once in self-defence. The accused on theother hand alleges the complainant was the aggressor and she assaulted him. [6] One incident occurred; yet two diametrically opposed versions are heard in court. Resolving issues like this can be said to be thebread and butter of the Ontario Court of Justice. The only case law relevant to this situation is so well known that it has achievedmononymous status like Cher, Sting or Oprah, and is invariably referred to simply as W.D.

Of course in full, I am referring to R. v.W.D. (SCC), [1991] 1 S.C.R. 742. W.D. tells me if I believe the accused, I must acquit him. It also tells me, even if Ido not believe him but after hearing his evidence I am left with a reasonable doubt, then again, he is entitled to an acquittal. Finally, evenif I do not believe the accused, and his evidence does not leave me with a reasonable doubt, the only way I can convict is if, based on theevidence I do accept, I am satisfied beyond a reasonable doubt of the accused’s guilt.

THE TWO VERSIONS [ 7 ] According to the complainant, she and the accused had been married for just over three years and they had two young children. In the time leading up to the incident, their marriage had been breaking down. She describes the accused as jealous, controlling and vindictive, and her version of the event, if believed, would bear this out. [ 8 ] For some time prior to the night in question, the accused had been sleeping in the basement while the complainant slept in the master bedroom. However this changed a few weeks before the incident.

The complainant at that time served the accused with the paperwork that commenced divorce proceedings. After she did this, somewhat strangely it seems, the accused decided to resume sleeping with the complainant in the master bedroom. [ 9 ] On the night in question, the complainant testified she went to bed about 8:00 p.m. after putting the kids to bed. She watched TV and planned on staying awake until midnight.

The next day was her brother’s birthday and it was her tradition to call him as soon as the clock struck midnight. [ 10 ] The accused came to bed and the complainant advised him she had her phone alarm set to midnight. Around 10:30 p.m. the complainant began texting with her friend Shelly Piccirillo. This went on for some time and shortly before midnight, the complainant alleges the accused rolled over and yelled that he could not believe she was texting him while he was sitting right next to her.

The “him” was never specified and the complainant stated she told the accused she was texting with her friend Shelly. [ 11 ] At this point the accused jumped up and grabbed the complainant in the neck or collarbone area and held her against the headboard of the bed. She then testified he slammed her against the headboard and told her to give him her phone. She rolled away from him to the other side of the bed and he jumped off the bed, went around and ripped the phone from her hand.

He then sits on the bed and starts scrolling through her messages, and according to the complainant he gets upset and bolts from the bedroom with her phone. [ 12 ] He goes downstairs and she follows shortly after. The complainant stated she was concerned as the accused is a hunter who keeps firearms in the house and he had threatened to harm himself in the past. She went into the kitchen to see if she could see him and to check to see if he had left any of his hunting guns there. [ 13 ] At this point the accused entered the kitchen and started advancing toward the complainant.

She stated she backed up and into the nearby bathroom. At some point she notices he is still holding a phone so she knocks it out of his hand. The door to the bathroom gets shut and then opened again, and the accused grabs the complainant and tries to pull her from the bathroom. The complainant states she resists by grabbing the towel rack which eventually is pulled from the wall. At this point she is pulled from the bathroom and is on her back on the hallway floor.

She starts kicking him, and according to her he then runs into the kitchen, grabs a chair and throws it at her, hitting her leg. [ 14 ] The complainant said she then noticed her phone on the floor. Its screen is lit up because, in the chaos, it has somehow dialed and connected to her friend Shelly. The complainant said she then picked it up and screamed into the phone for Shelly to tell him she had been texting with her, but Shelly was silent on the other end. [ 15 ] At this point the complainant says she can hear one of the children has woken so she tries to get upstairs.

However the accused at this point approaches her and has what she describes as a vacant look. He states to her that she is “fucking done”, and he has his fists clenched. At this point she punches him once in the face, which stuns him. He takes a step or two back and she runs up the stairs, gets her daughter from her bed, and takes her into her son’s room, where they huddle together with the door closed. [ 16 ] She states she can hear him in the hall continuing to make threats but he does not attempt to enter the room. Eventually she hears him leave the house.

The complainant then finds her phone and calls Shelly, who tells her to leave with the kids. She does leave and goes to her parents’. [ 17 ] The complainant’s friend, Shelly Piccirillo also testified. She confirmed she had been texting with the complainant earlier in the night and then at some point she got a phone call from the complainant. When she answered she heard the complainant breathing heavily and saying, “tell him Shelly, tell him I was talking to you.” She could also hear the accused in the background, yelling.

She stated she asked the complainant if she was safe and if she needed her to phone the police, but did not get any real reply. She stated the complainant next said she thought she could hear the accused leaving, and so she told the complainant to get the kids and leave, and to call her again when she had left the house. [ 18 ] The accused’s version is different. He said he fell asleep in bed and woke to the complainant reaching over him to get his cell phone off the night stand beside the bed. He stated they then struggled over his phone during which time she was scratching and clawing at him.

At no time did he pin her or bang her into the headboard. [ 19 ] He was able to get off the bed and ran downstairs, with her in pursuit. When he's near the bottom of the stairs she jumps on him from behind and they nearly fall. They go into the kitchen and she's still chasing him. In this version he states he runs into the bathroom and she chases him in and wedges herself in the doorway, preventing him from closing it. [ 20 ] He then somehow gets out of the bathroom and she jumps him from behind. He has his phone in his hand and she knocks it out.

He picks the phone up and they end up running through the kitchen, where he knocks over a chair. [ 21 ] Eventually they end up near the bottom of the stairs, facing each other, exhausted from the struggle. The accused, at this point having prevented her from getting his phone, and apparently feeling quite satisfied with himself in doing so, displays his level of maturity by sticking his tongue out at the complainant. In response, the complainant punches him in the face. [ 22 ] The complainant then runs upstairs, taking the kids into a bedroom, while the accused dresses and leaves.

[ 23 ] As can be seen, these two versions are both similar in that there is a struggle over a cell phone in the bedroom, a chase down the stairs, a further struggle in the bathroom, and a final punch to the face of the accused by the complainant. Photos of the complainant were made exhibits that show some bruising and scratching that could be said to be consistent with either version of the event. As well pictures of the accused showed he had some cuts to his mouth and tongue consistent with a punch, and other scratches that also could be consistent with either version of the incident.

ANALYSIS [ 24 ] As noted, W.D. instructs me to begin my analysis by deciding whether I believe the accused. If I do not believe him then I must still ask if his evidence has left me with a reasonable doubt. [ 25 ] In this case, I neither believe the accused, nor does his testimony alone leave me with a doubt. There is nothing inherent in the version of the incident told by him that would cause me to disbelieve him.

However, it is as a result of his behaviour at the time, and aspects of his testimony in court, that have caused me to conclude he is not worthy of belief. [ 26 ] At the time of the incident, his marriage was crumbling and he was not handling it well. He felt he was a victim and seemed to make it his goal to prove the complainant was a bad person and was at fault for the breakdown of the marriage. He was jealous and manipulative.

Unfortunately, these attitudes do not seem to have abated much in the two years since the incident. [ 27 ] At the time the accused was constantly obsessing over whether the complainant was seeing other people. This seemed to create a great deal of angst for him, even though by then, the parties were separated and heading for divorce.

This led to a situation where not long before the incident, the accused sent a mass text message to numerous other members of the NRPS, approximately 15 by his own admission, that stated the complainant was the cause of their marriage breakdown, she was in the midst of a sexual relationship with another officer, and that her colleagues ought not trust her. [ 28 ] He as well at this time, had taken to recording conversations he was having with her without her knowledge. He admitted to this activity and seemed to do it quite frequently.

He stated he had started recording her in September or October of 2013, and by the time of the incident on November 25, 2013 he had multiple recordings. By the end he had filled the memory of three digital recorders with conversations between himself and the complainant without her knowledge. [ 29 ] He claimed to be doing this to protect himself from false allegations the complainant may make against him.

However it appears what he was really trying to do was gather evidence against her in his quest to prove she was the reason for the break up. [ 30 ] A clear example of this was when he was asked if he ever made a recording of her when he himself was not present. He admitted he had done so. He stated they had been in her car and he had his recorder on and in his pocket. Somehow, the recorder fell from his pocket, and was in the car in a spot where it was not noticed by the complainant. The accused stated he did not realize this happened until sometime the next day.

When he retraced his steps he states he located it in the car. He listened to it and realized it had recorded her, and not just any recording, but with her engaged in sex with someone. [ 31 ] He also testified that at the time he did not realize it was not legal to record someone in this manner without their knowledge and without him being present. [ 32 ] I find this wholly unbelievable. I simply do not believe the recorder fell out of his pocket, while on, without his knowledge. Given the frequency with which he was making recordings, he would have realized long before he did that his recorder was missing.

As well that it could fall from his pocket and remain in a spot such that the complainant and other persons in her car were unaware of it, yet still in an open enough area to clearly record her, also defies belief. [ 33 ] What is the most plausible explanation for this recording is that he hid it in her car in an area where she would not find it but it would still be able to record her.

As well, his claim, coming from a police officer, to be unaware of the dubious legality of making such a recording, is an explanation that I find difficult to accept. [ 34 ] A further instance of the accused’s behaviour relates to a video he made that he alleges shows that the complainant had stored her police-issued firearm at their home in an unsafe manner. Apparently she was permitted to bring her firearm home on this occasion as she had a training course to attend the next day. [ 35 ] The complainant was out while the accused was at home with the children.

He alleges while looking for his phone he found her firearm, loaded and in her service belt, draped over a laundry basket in the closet. [ 36 ] How the accused claims to have reacted to this discovery I find somewhat disconcerting.

Instead of immediately rendering the firearm safe, as I would have expected any person licenced to carry a firearm would do, let alone a police officer, the accused instead immediately pulls out a different phone than the one he claims he was searching for, and makes a video recording of his find. [ 37 ] What is most troubling about this video, is that the accused’s two year old daughter can be seen in the bedroom in the area with him.

That he was more concerned about making a video than he was about rendering safe the firearm and storing it safely out of the reach of a young child, speaks volumes to the accused’s mindset at the time. [ 38 ] What I also found strange was the accused’s behaviour on the video. He knew the complainant was not home at the time he made it, yet while he was recording it, he was calling out for her and telling her he had found her firearm and for her to come to retrieve it. [ 39 ] He stated he made the video as he did to protect himself from her alleging that it was he who left a firearm in this condition.

He also stated after he finished making the video, that he called her to tell her what he had found. This is a call he states he did not record. Given his penchant for recording her, and his stated desire to protect himself from false allegations, I find the fact that he would choose to not record this conversation surprising.

[ 40 ] The complainant has denied she left her firearm in this condition, and denied getting a phone call from the accused about it. She stated she received a text from him and she responded for him to leave her firearm alone as she had safely stored it. If he was telling the truth and was as worried as he said about protecting himself, he would have recorded this phone call, or kept this text exchange.

The fact he did not leads me to conclude the complainant’s version of this post video exchange is likely the true one. [ 41 ] I have no intention of resolving whether the complainant left her firearm in this manner. If this firearm incident occurred it would have been approximately two weeks before the night of November 25, 2013. The complainant was asked in cross-examination if she had stored her firearm in an unsafe manner. She denied it, so the video was played to ostensibly demonstrate she was being untruthful.

This was simply a collateral attack on her credibility, and I refuse to consider it in my assessment of her. Had I been forced to resolve this issue, I would have to say I would find it difficult to believe, that a police officer such as the complainant, would have stored it in such a manner in her own home with her children present. [ 42 ] At about the time the complainant served the accused with the application for divorce, the accused took a stress leave from his job as a police officer for the NRPS. The accused testified at trial about this. His testimony at trial was somewhat perplexing.

I got the impression from him that he was unwilling to admit that at the time he requested the leave he was actually experiencing any stress. [ 43 ] He stated when he was served with the divorce application he needed some time to sort out his matters, such as finding a lawyer and getting his personal banking documents, as well as their joint financial information, gathered. [ 44 ] He decided to take some time off from work to deal with these matters, but when he realized he did not have any sick or vacation days left, he told them to mark him off for stress leave because he still wanted to be paid. [ 45 ] However when a police officer indicates they need a leave for stress related issues, NRPS policy is that their firearm is immediately taken away and they require a report from a psychologist or psychiatrist before they can get it back.

This is what happened to the accused, his police issued firearm was taken from him. [ 46 ] As of trial, he still had not obtained the required medical report necessary to have his firearm returned. He was asked why he would not do this but never provided a direct answer to the question. He seemed to indicate he did not feel it was necessary as he really was not suffering a stress-related incident when he took his leave.

Even though he is aware of the NRPS policy requiring such a report, he filed only something called a “functional abilities form” and left it for his police association to sort out. [ 47 ] For reasons that are known only to him, the accused is not willing to admit that what he was going through at the time, with his marriage breaking up, was sufficient to cause him to take a stress leave, even though that is precisely what he claimed with his employer. [ 48 ] I am not sure what the cause of such reluctance is on his part. In fact the explanation he gave does not put him in any better light.

If anything, it makes him look worse. If I take his explanation at face value, what he was really doing was lying to his employer so he could receive a paid benefit which he knew he was not entitled to receive. [ 49 ] It is for all of these reasons I cannot believe the accused. I find that at the time he was jealous and manipulative, and that not much has changed to date. His recording her conversations, leaving the activated recorder in her car, and the taking of the video of her firearm all bear this out.

The rehashing of this at trial, as well as the insistence of focussing on her so called affairs, and the attempts to call witnesses to prove she's having affairs, not only confirm the accused’s continued jealous and manipulative manner, it also demonstrates that he harbours a significant level of animus toward the complainant.

Given he is this type of manipulative person and given his testimony in court, I find it would be dangerous to accept any of his evidence, and as such I reject it and find as well, that it does not raise a reasonable doubt. [ 50 ] But as W.D. instructs, the fact that the accused is not believed and his evidence does not raise a reasonable doubt does not necessarily lead to a conviction, I still have to be satisfied on the basis of the evidence I do accept that the accused is guilty. [ 51 ] That means I still have to decide if the evidence of the complainant is capable of proving the guilt of the accused. [ 52 ] In that regard, I have the version of the events of November 25, 2013 she gave in court as noted earlier.

However, that version is inconsistent in several material aspects, to the statement she gave to Officer Devine of the NRPS, the day following the event. [ 53 ] In the version told to Officer Devine the following day, the complainant states after the confrontation in the bedroom, the accused runs out and she not just follows him downstairs, but chases him.

In this version she jumped over the railing of the last few stairs in order to try to catch him, there is no mention in this version of going to the kitchen to check if his hunting guns are there, in this version she is running, trying to catch him. [ 54 ] As well, in her statement the next day, she states that the accused tried to lock himself in the bathroom and that she put her foot in the door to prevent him from doing so.

They struggled as he tried to push her out, and at that point she knocked the phone out of his hand and it landed in the hall where they both dove for it. [ 55 ] In relation to the kitchen chair, in her statement the day following, she stated he threw the chair in her direction. Unlike in her testimony at trial, she said it never hit her, and she conceded in the statement he could have just been trying to get it out of the way. [ 56 ] The statement she gave to Officer Devine the following day and her testimony in court are significantly different.

This requires me to approach her testimony with caution. [ 57 ] She explained that at the time she was embarrassed, did not want the accused arrested and as a result was minimizing what happened. This was more than minimizing though. These aspects of the versions are completely different and paint an entirely different picture of who was the aggressor that night.

[ 58 ] As well, the complainant as a police officer would have understood what the implications of telling an untruthful account to Officer Devine could be. She would also have been aware that notwithstanding her desire to not see the accused arrested, that is what happened. She would have been made aware of his arrest and his bail conditions, which had all occurred by November 27 or 28, 2013. [ 59 ] Even though she knew she did not give an accurate account of what happened that night, she took no steps for a significant period of time to advise either Officer Devine or the Crown.

It was not until January 26, 2015, some 14 months later, in preparation for the trial, that she first indicated to Officer Devine that what she said in her initial statement was not completely accurate. [ 60 ] As a police officer she was not unfamiliar with how the court system works. She and Officer Devine were colleagues on the NRPS, and she would have had numerous opportunities to speak with her to set the record straight, yet she failed to do so. She would have been aware for a significant period of time that the matter had been set for trial, and that she would have to testify.

Her delay in the face of these circumstances in coming forward with what she now claims is the truth, is both puzzling and troublesome. [ 61 ] The Crown contends that the complainant’s explanations for the inconsistencies in her testimony and statement make sense. She was in the midst of a marriage breakdown, from an unstable and controlling husband.

They were both officers with the NRPS, she was embarrassed and she just wanted to move on without the further embarrassment of charges and a criminal trial, so she minimized what took place. [ 62 ] The Crown argues that in addition to her explanation making sense is the fact it is obvious whose phone the complainant and the accused were fighting over. The Crown states the complainant is being truthful and the accused is not because it is clear the entire incident was over her phone and not his, as he contends.

This contention according to the Crown is supported by the phone call to, and evidence of Shelly Piccirillo. [ 63 ] Ms. Piccirillo confirmed she received a call from the complainant on the night in question where the complainant was heard to be yelling for Ms. Piccirillo to tell the accused that the complainant had been speaking to her. The Crown says this is consistent both with the complainant’s testimony about the phone somehow redialing, and that the struggle was over the complainant’s not the accused’s phone. [ 64 ] I found that this testimony about the phone though, was not quite as straightforward.

The complainant testified when she saw the phone on the hall floor and realized it redialed Ms. Piccirillo she picked it up and yelled for her to tell the accused that they had been speaking. Later however, after she had gone upstairs and the accused had left, the complainant stated she did not know where her phone was, and she ran back down to the kitchen to get it. She retrieved it and spoke to Ms. Piccirillo again, whereupon they discussed the complainant leaving with the kids. [ 65 ] This seems to imply there were two calls to Ms. Picirillo from within the house, whereas Ms.

Picirillo’s testimony was that there was only one continuous call. [ 66 ] As, well, in her testimony, the complainant, during the struggle at the bathroom, clearly stated she knocked the accused’s phone out of his hand and it went flying. Later she testifies it was her phone that was on the floor.

This may have been a slip of the tongue in relation to whose phone she knocked out of the accused’s hand, but given the importance to this case about whose phone the struggle was over, I ought not speculate on such an issue. [ 67 ] In the end, I think it is most likely that the complainant was being truthful in both her testimony and her explanations about her prior inconsistent statements. However, because of the issues with her testimony I am left in a position where I am not able to accept her testimony with the requisite degree required in a criminal trial.

That is to say I am still left with a reasonable doubt even after carefully considering her evidence and the accused is entitled to the benefit of that doubt. [ 68 ] Mr. Belzil you ought not feel vindicated by this verdict. Your acquittal was not brought about in any way by how you acted at the time, or the manner in which you conducted your defence at trial; your acquittal came about in spite of those factors. Agree or disagree, love it or hate it, therein lies the beauty of the criminal justice system in this country.

Before we are willing to bring the authority of the State in the form of criminal sanctions to bear upon someone, we must be satisfied of their guilt beyond a reasonable doubt, which is an exacting standard. It is such that a person, who has behaved and acted as you have, and who is most likely guilty, is nonetheless entitled to the benefit of any doubt. The charge is hereby dismissed. Dated at Brantford, Ontario This 24 th day of November, 2015 The Honourable Mr. Justice R.S. Gee