R. v. Kerr, 2011 ONCJ 492

COURT FILE No.: Toronto Region Citation: R. v. Kerr , 2011 ONCJ 492 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) G. Brienza, ) for the Crown ) — AND — ) ) ) OMAR KERR ) T. Tomavski, ) for the accused ) ) ) ) HEARD: May 16, September 6, 13, 2011 FELDMAN J.: [ 1 ] Omar Kerr entered not guilty pleas to Assault, Theft under $5000 and Mischief under $5000. It is alleged that during an escalating argument with the complainant, Lacey Abusin, the defendant assaulted and injured her, damaged her apartment and stole some property from her purse. [ 2 ] In support of its case, the Crown called Ms.

Abusin to give evidence and tendered photographs of her injuries that were taken shortly after these events. Mr. Kerr testified in his own behalf. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution. The Evidence [ 4 ] Lacey Abusin is 27 years old. She says she dated the accused on and off since 2008. She told the court that they lived together part of the time but were also separated for a while. She said the defendant referred to her as “my girl”. [ 5 ] Ms.

Abusin testified that until recently she supported herself for two years as an “escort”. She said for much of that period Mr. Kerr was her driver and that he kept all of her earnings but for those funds he used to purchase items for her. She believes she earned $144,000 as an escort, but set aside $800 from her work over the last two months she was still together with the defendant to send to her children in Nova Scotia.

She says she had those funds in her purse on May 29, 2010 when they were forcefully taken by the accused, as was a $600 diamond ring she had originally purchased for him but had him return before the assault occurred. [ 6 ] Ms. Abusin gave evidence that on May 29, the defendant was spending the evening with her when he received a call from an unknown woman. This angered her. She said she told him she had had enough, wanted to end the relationship and insisted he leave. She said that in response, Mr. Kerr grabbed her purse and then hit her when she struggled to regain it.

She told the court the defendant took $800 and the ring from the purse. [ 7 ] The complainant testified that when she grabbed hold of the purse, the defendant struck her cheekbone with the back of his hand. A photograph taken a couple of hours after this occurrence shows her with a black right eye and swollen right cheekbone. She was mistaken in indicating her injuries were on the left side of her face. [ 8 ] Ms.

Abusin told the court that following the assault a struggle ensued that moved from the living room to the kitchen where as the defendant attempted to grab her she tried to get away, at one point ending up on the floor, possibly from having tripped. She saw him take some liquor from the fridge before he left. [ 9 ] Police photographs showed broken glasses from the kitchen counter on the floor, a chair knocked over and a hole in the kitchen door. Lengthy scratches on the complainant’s leg, seen as well in the photos, may have been caused by her falling on the glass.

She says these events moved quickly and she did not see how the property damage occurred. [ 10 ] Ms. Abusin admitted that after the defendant left she called and texted him many times demanding that he bring back her property, but to no avail. She called the police. [ 11 ] She said the defendant came to her apartment about a week later to get some of his property. She told him there was a warrant for his arrest, but did not provide details to him as she felt he knew why. Defence Evidence [ 12 ] Mr. Kerr is 28 years old.

He denied all material allegations, including theft of property from the complainant’s purse, that he had ever returned the diamond ring until asked on May 29 or that he assaulted Ms. Abusin and caused damage in her apartment. He implies that she went into a rage because of his admittedly high handed treatment of her and her own jealousy and that she likely injured herself and damaged her own property in order to set him up for arrest.

[ 13 ] The defendant told the court he supports himself on welfare and lives in subsidized housing. He denies owning two cars, as alleged by the complainant, but only borrows them. He says he met the complainant through an on-line date site and saw her 3-4 times per month prior to their initial parting of ways. He says he told her he had a girlfriend and a son and felt she was accepting of it and their own casual, but intimate relationship. [ 14 ] Both parties agree that they had no contact between June 2009 and March 2010.

The defendant says the complainant then called him to see her new apartment on Teasdale Ave. in Scarborough and that thereafter they resumed their relationship, with him staying overnight with her at least once per week. [ 15 ] Mr. Kerr testified that on May 29 at about 12:30 a.m., his girlfriend, Kelly James, called him to pick her up from work and that when the complainant objected he told her it was not her concern and that he did not have to tell her with whom he was speaking or where he was going. He said he took some liquor from the fridge and left within a minute.

He says nothing else happened. [ 16 ] It is to be noted that the complainant’s purported animus in these circumstances does not fit with the defendant’s assertion that Ms. Abusin accepted his having another girlfriend. As well, the photographic evidence of injury and damage, taken within two hours of this confrontation, challenge the credit of the defendant’s story. [ 17 ] Mr. Kerr told the court that the complainant called or texted him at least 50 times demanding he return the liquor and the ring.

He said she was screaming, yelling and threatening to have him hurt or shot or call his girlfriend if he didn’t comply, despite their prior understanding, as he claimed, of the nature and limits of their relationship. He suggested her rage was irrational and permitted the inference she used self-harm to frame him. [ 18 ] The defendant said he saw Ms. Abusin about a week later to pick up his things at her apartment. It seemed odd that he would keep his computer there, as he admitted, if he only visited her once a week. It may be he was there much more often, as alleged by the complainant.

Findings of Credibility and Fact [ 19 ] I found the complainant to have testified in a straightforward, if understated manner. She was fair in admitting the events moved too quickly for her to be sure how the damage to her apartment was caused. At the same time, however, it is unclear, even questionable without more, how she came to accept with no apparent objection to handing over all her earnings from prostitution to the defendant. However, I don’t accept that her mistake about which of her cheeks was struck is other than an honest one given the passage of time.

She was always clear that she had $800 in her purse she had siphoned off in the last few months from escort payments, a minor amount in the context of all she had allegedly earned in the escort business. [ 20 ] Importantly, the photographic evidence tends to enhance the objective reliability of the complainant’s evidence on the material issues of fact related to the assault allegations. And given the defendant’s admission that he was high handed in his treatment of Ms.

Abusin on May 29, her dismissal of him for his infidelities and their argument leading to an assault was on this evidence an objectively reasonable inference. The defendant’s suggestion of the complainant’s disproportionate response that evening, including a threat to kill him, despite his martial arts facility and massive size, was in my view of the evidence, contrived and self-serving. I reject the notion that the complainant set the accused up for arrest. [ 21 ] Mr. Kerr’s blanket denial of the allegations is undermined by the photographic evidence and my rejection of the assertion he was framed.

His suggestion that the complainant accepted he had a girlfriend is inconsistent with the notion she became enraged and irrational over a woman calling him late at night. His denigration of Ms. Abusin in this manner and by the evidence she threatened to have him killed if he failed to return her property reflects negatively on the defendant’s testimonial reliability. His asking the complainant if the scratches on her leg were from shaving is bizarre. On all the evidence, I reject the defence theory of self-harm. [ 22 ] Ms. Abusin is not sure how the damages were caused.

She says it is possible they were the result of her struggle with the defendant, leaving open the possibility they were caused accidentally. It is probable the physically powerful defendant put a hole in the kitchen door as

an act of either anger or intimidation, but on this evidence I am left in reasonable doubt in relation to the mens rea element of the mischief charge. That count will be dismissed. [ 23 ] There is also no corroboration of the complainant’s allegation concerning theft of her monies and ring. It is probable the accused saw the complainant as a cash cow whose exploitation would allow him to live well on the margins of society by dishonesty and intimidation. It is likely he felt entitled to take what he wanted from someone he appeared to be using to satisfy his own needs.

However, the complainant’s lame explanation for handing over her earnings to the accused bear on her credibility in this narrow regard, leaving me in reasonable doubt about the theft charge that will as a result be dismissed. [ 24 ] On all the evidence, however, I am not left in reasonable doubt that the defendant assaulted the complainant as she alleges. I accept that Ms. Abusin was entitled to end what appears to have been an unsatisfactory relationship and that her anger was not misplaced nor used to make up a false claim, a notion on this evidence unworthy of any weight.

The photos of the injuries are unassailable. On all the evidence, I reject the accused’s denial and am satisfied beyond a reasonable doubt that he subjected his rebelling charge to a physical punishment causing her injury. In the result, the defendant will be found guilty of assault.

Released: September 13, 2011 Signed: “Justice L. Feldman”