R. v. Fernandez, 2011 ONCJ 76

Information No. 10-935, 10-1584 Citation: R. v. Fernandez , 2011 ONCJ 76 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WALTER FERNANDEZ ********** R E A S O N S F O R J U D G M E N T BY THE HONOURABLE JUSTICE B.E. PUGSLEY On January 7, 2011, at ORANGEVILLE, Ontario ********** APPEARANCES: R. Fetterly Counsel for the Crown L. Shemesh Counsel for Walter Fernandez 1 REASONS FOR JUDGMENT PUGSLEY, J. JANUARY 7, 2011

PUGSLEY, J. (Orally): The defendant stands charged with two Criminal Code allegations, assault upon his domestic partner and mischief to their joint property as part of that assault process. Two Crown witnesses testified, the complainant and the officer in charge, Constable Tigera Turner, of the Caledon Detachment of the O.P.P. The defendant was the sole defence witness. The analysis set out in the leading case of R. v. W.D. in the Supreme Court of Canada is engaged in my assessment of the defendant’s evidence here. To paraphrase, the test in R. v. W.D. can be described as follows.

When a defendant testifies, his evidence must be weighed in a careful way since the onus always remains upon the Crown to prove the charges beyond a reasonable doubt. It is not simply a matter of whether the complainant’s evidence or the defendant’s evidence is more believable. Rather, I must first ask myself, as the trier of fact, whether I believe the defendant’s evidence here. If I do so, I must acquit him. Second, if I do not believe the defendant but nonetheless his evidence leaves me in a reasonable doubt as to his guilt, I must also acquit him. 2 REASONS FOR JUDGMENT PUGSLEY, J.

Finally, if I do not believe the defendant’s evidence and that evidence does not leave me in a reasonable doubt, the Crown must, in any event, prove each necessary element of the offence beyond a reasonable doubt before the defendant may be convicted.

Here, the complainant testified that in April, 2009, while upset over very bad news about his stepfather, the defendant was angered by her apparent indifference to his pain and violently knocked over a large clock, breaking it and damaging a couch, coffee table and the floor, then violently assaulted and attempted to strangle her and then finally broke two doors enroute to the garage. A short time later, the defendant came back in the house and apologized and as she described it, they made up for a time. The defendant’s evidence is that he was upset and tearful at the news from his stepfather’s homeland.

He did knock over the clock, but by accident, damaging the couch and subsequently the floor as the clock fell, but in fact there was no coffee table in the living room. The damaged laundry room door was damaged by his aggressive opening of that door, but the garage door from the house into the garage was not damaged at any time during this process. He denies absolutely any assault upon the complainant. 3 REASONS FOR JUDGMENT PUGSLEY, J. By September of 2009, the parties were essentially separated but for residential convenience were living in the same house.

A petty dispute over who would use the defendant’s Jeep was escalated by the defendant’s threat to throw all of the complainant’s belongings out on to their small lawn and change the locks on the house if she left. She responded by calling 911 and although she changed her mind, the police, of course, came. While there, both parties were questioned about any prior incidents of assault or property damage separately by the attending officers. Both the complainant and the defendant denied any prior acts of assault or damage to property.

The complainant left for the night and returned soon after and they continued to live in the same home, albeit separate and apart while the divorce was negotiated and ultimately finalized. There was one other problem, however, between the parties. They had two dogs. Neither wanted the dogs in the end. Long after final separation, the complainant attended at the defendant’s then home, the former matrimonial home, and left the dogs there with the defendant’s mother. The defendant called the police who came and determined that they could not assist.

Nonetheless, the defendant subsequently 4 REASONS FOR JUDGMENT PUGSLEY, J. confronted the complainant at her employment about the act of leaving the dogs at the house without his leave, told her it was animal cruelty and that he had called the police. He did not however tell her that the police had said that they could not do anything about this because he wanted, childishly, to scare her into taking the dogs back. Failing this, he later took the dogs down to the complainant’s car, waiting for her to leave work, to presumably force the return of the dogs. In the interim, however, his threat had backfired.

The complainant was, she says, worried that the defendant might actually harm the dogs and then tell the police that she was the one who had done it. She decided to go to the police herself to make sure they knew that she hadn’t hurt the dogs and that the defendant might try and frame her. Not surprisingly, Constable Turner, a very experienced O.P.P. officer, who had had dealings about the dogs with the defendant some time shortly before, detected that there was a certain amount of animosity between the parties.

And as was the proper policy of the O.P.P., asked the complainant questions about any past incidents of abusive conduct between them. The complainant then gave a statement about being 5 REASONS FOR JUDGMENT PUGSLEY, J. strangled in April, 2009. While he waited to shuffle the dogs back to the complainant, the defendant was arrested and charged with these two counts and held in jail until a bail hearing. The defendant denies the assault and says that the damage to the clock, couch, floor and door, all his property, for they ended up his in the end after the divorce, took place accidentally.

The defendant’s story essentially unchallenged in cross-examination might reasonably be true. The complainant’s testimony however did suffer somewhat as more details came out when she was cross-examined. The complainant described a shocking, unprecedented and unprovoked attack by the defendant involving acts of strangulation. She described being left gasping for air such that she could not even speak as the defendant stormed out into the garage. She did not report this assault.

By September 2009, however, when the marriage between them was clearly over but for the legal end to that marriage, she gave evidence that she lied to the police about that shocking, unprecedented and unrepeated assault essentially because she knew that the defendant loved hunting and she did not want the police to take his guns away. That is, to protect him some five months later after the end of the marriage, lying to the 6 REASONS FOR JUDGMENT PUGSLEY, J. police when asked directly about acts of assault and damage to property.

Notably, she could have complained about the damage to the property and omitted any assault if she wished to protect the defendant but rather, as she now admits, lied to the police.

Now, as the Crown submits, delayed complaint and even telling falsehoods by complainants is not at all unknown in domestic assault charges and for often good reasons, since partners who are the subject of assault have a multitude of reasons to try and keep things going in the family, including children, economic issues, and a love for the assaultive partner. None of these reasons are apparent here at all.

I find the complainant’s credibility is shaken by her claim that she was trying to protect the defendant by not mentioning being strangled by him when she had just felt it necessary to call the police because of an idle threat to throw their property out on the front lawn and lock her out of the house. The marriage, as already stated, was by that time over and there was no basis for me to conclude that the complainant harboured any such tender feelings to the defendant in September of 2009 and rather the opposite. 7 REASONS FOR JUDGMENT PUGSLEY, J.

In this respect, I do not accord my analysis of the complainant’s decision to remain silent about this bitter and unprovoked assault for nearly one and a quarter years with the usual considerations that I would relate to a domestic assault complainant. Further, although essentially denied by the complainant, there was a motive for her to suddenly recall and report the earlier assault when she went to the station to defend herself against what she saw as a potential framing of animal cruelty allegations.

I agree with the defendant’s submission that in the context of this immature and mismatched couple, the complainant did have a reason to strike back at the defendant when handed a potentially potent weapon by the operation of police policy. Did the assault take place as the complainant described? Perhaps so. But such is no basis upon which to find criminal liability under R. v. W.D. I must find that on the second leg of the test, the defendant’s evidence does leave me with a doubt, a doubt that I must, of necessity exercise in his favour. Accordingly, I find the defendant not guilty of both counts.

Thanks very much, counsel, for your very focused and helpful submissions. 8 Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Joyce Tuyp, certify that this document is a true and accurate transcription of the recording of R. v. Walter Fernandez in the Ontario Court of Justice, held at 10 Louisa Street, Orangeville, Ontario, to the best of my skill and ability, taken from Recording Number 8/2010, which has been certified in Form 1. _______________________________ ______________________________ Date Signature of Authorized Person (

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ONTARIO COURT OF JUSTICE Exam. Cr- Re- WITNESS In-Ch. Exam. Exam. ...NO WITNESSES WERE CALLED AT THIS TIME *********** Transcript Ordered: January 7, 2011 Transcript Completed: January 16, 2011 Ordering Party Notified: January 17, 2011