R. v. Sawyer, 2019 ONCJ 974

CITATION: R. v. Sawyer , 2019 ONCJ 974 DATE: August 23, 2019 Information No.2811-998-17-37669-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SCOTT SAWYER R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on AUGUST 23, 2019, at Oshawa, Ontario APPEARANCES : S. Thompson Counsel for the Crown J. Wilkinson Counsel for Scott Sawyer WAKEFIELD, J. (Orally): Scott Sawyer stands charged with one count of assault causing bodily harm.

The crown case comprised testimony from the complainant Tristan Maenza, Riley Sawyer, Richard Lephka, and PC Salesman and PC Kronen (ph) together with medical reports and photographs of the complainant’s injuries. The defence case consisted of testimony of Theresa Robichaud, sister-in-law of the defendant, and together with that of the defendant. As such, all three branches of W.D. are engaged. The defendant conceded that the injuries to the eye amounted to bodily harm.

Tristan Maenza presented as a very fit young male, 23 years old, he has a university degree in kinesiology, currently an employee with Bell Canada and past employment in construction working with concrete which he advised had left marks on his hands. He also runs a painting company on the side. He is certainly athletic looking, consistent with years of playing soccer competitively. He did not present in Court as in any way aggressive, quite the contrary when describing the altercation, he became teary several times

and had needed moments to compose himself. That emotional demeanour was also observed by PC Salesman who took a statement from the complainant at the hospital while being treated for the complainant's injuries and the officer described the complainant as crying several times while giving the statement. The complainant's testimony covered meeting the defendant’s niece a couple weeks earlier. The invitation to the birthday party of the defendant's brother, the complainant's drinking prior to attending the party. The niece picked up the defendant from a bar to take him to the party.

The defendant's daughter was in the car with his niece who was driving. The complainant had some expectation that after attending the party him and the niece would depart for his own apartment as they had in the past. The party was for an older crowd, however; the complainant introduced himself around and described having a pleasant experience as well as a pleasant chat with the defendant. The complainant described observing an interaction between the defendant and his niece which the complainant interpreted as upsetting the niece.

The complainant followed the niece upstairs to ask if everything was okay, now feeling awkward at the party. He joins her in her bedroom along with the defendant's daughter where they just chat. The defendant then entered the bedroom either just after his daughter went to the washroom or as both girls ran out of the bedroom. A family friend and the defendant's sister-in-law came up to see any problem that evolved and were told everything was okay, only it was not okay.

On the complainant's version, he tried placating a very irate defendant who initiates an unprovoked scuffle which results in the complainant being throw on the bed with such force as to damage the bedroom walls, then being marched down the stairs and thrown out the front door. When describing the multiple punches' effect on him, the complainant required several pauses in testifying to compose himself, consistent with his demeanour as described by the officer that originally took his statement at the hospital where the complainant was being treated for multiple abrasions and chipped teeth amounting to bodily harm.

Red marks on the complainant’s hands as photographed by the police on the incident day he described as a result of concrete work he had been doing. I noted that on the trial date, his hands had what appear to be similar red markings as depicted in the photographs. Specifically, the complainant denied saying anything disparaging about the niece, of her having a pimp, or that the complainant had the right to do whatever he liked with his niece. The complainant readily admitted inaccuracies in his initial statement taken at the hospital.

He presented as a balanced, truthful witness, who very naturally uttered a bless you while testifying when my clerk sneezed. He appeared both credible and reliable in his testimony. Any inconsistencies in his testimony was to the sequence of physical acts would easily fall within an acceptable category of being the victim of an assault, sufficiently violent and quick as to make detailed memories almost impossible to retain. The defendant testified. He admitted to a prior record of violence which was almost three decades old and not a factor in this trial.

The defendant described the confrontation from a polar opposite perspective in which he was the victim, albeit completely victorious in the altercation, having complete physical control over the complainant. According to the defendant, the complainant attacked him during which the defendant was able to subdue a younger man in apparently peak condition without physical injury to himself and substantial injuries to the complainant. While the defendant self-reported a swollen hand and bruises the next day, they were undocumented.

Unlike the complainant, the defendant testified in a controlled, almost rehearsed manner both in-chief and in cross. He did not provide a context for going upstairs as apposed to having the niece's mother go upstairs. To his credit, the defendant testified to being the first to throw a punch, albeit in a preventative self-defence context. Certainly, that sort of preventative assault is a defence in law. That admission while adding to a credibility is also the only way in which the complainant's injuries compare to the defendant's lack of injuries could be explained.

Ultimately, I was less than satisfied with the defendant's explanations standing alone. Even his ascertain of the complainant's disparaging remarks toward the niece would also be motivation for an assault, given the admitted protection as to attitude the defendant described towards his extended family and especially towards the niece with certain challenges. In short, I would reject the evidence of the defendant standing alone nor would it have left me in a reasonable doubt.

The crown's case in my view was well beyond a balance of probabilities but I would certainly anticipate any civil Court would not hesitate in finding liability against the defendant together with his brother's family where the incident happened. The other witnesses called by the crown ultimately did not assist beyond confirming that prior to the physicality everything appeared non-violent.

Only the complainant and the defendant could testify as to what occurred within the bedroom when it was just the two of them, other than the fact that Riley Sawyer quickly exited the room to find her mother is an indication to a level of tension between the two men which had already been created. However, the testimony of Theresa Robichaud is troubling in two respects.

I find that despite her being the defendant's sister-in-law, her demeanour in testifying was quite suggestive that she was not overly supportive of the defendant, at least as so far in what occurred at the party and perhaps more generally as she appeared to resent the defendant more than just involving himself in a fight at her residence during her husband's party. When responding to the Court's questions. She described the defendant's demeanour in throwing or pushing the complainant out the front door.

I note here that the crown very fairly agreed that the manner in which the complainant was adjected from the house was not part of the crown's theory of assault, and agreed that this action was not something the crown was relying upon. While I instruct myself that I am not bound by that concession, I have decided to accede to the crown's request. I certainly find as a fact that there is no air of reality to the defence theory that the complainant was on a mission to seduce the niece in the parents’ house and when prevented by the defendant lashed out to the defendant physically.

That theory I find was an unnecessary slur on the complainant. In assessing the third branch of the W.D. analysis, I am left troubled by one other aspect of Ms. Robichaud's testimony. When describing the defendant's reaction once the complainant had been ejected, she testified that the defendant was yelling that no one talks about our family like that. There is no reason for the defendant to say anything like that about the complainant given the complainant's testimony as to the conversation in the bedroom.

The defendant's outburst after coming down the stairs only makes sense if it arose from something said in the bedroom, contradicting the complainant on what I assess to be a very important point. While I subjectively find the complainant testified both credibility and reliably, the contradiction between the defendant's outburst on the stairs and the complainant's denial of any provocative conversation leaves me with a reasonable doubt as to what exactly occurred in the bedroom given that factor on the complainant's credibility and reliably.

While I do not accept the defendant's testimony standing alone, when the context of Ms. Robichaud testimony is considered with the testimony of the defendant, I am not prepared though quite reluctantly, to find the crown has proven its case beyond a reasonable doubt. Stand up, Mr. Sawyer. I find you not guilty of assault bodily harm or any less or included offence. You’re free to go.