R. v. Paris, 2013 NSPC 57

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Paris , 2013 NSPC 57 Date: 20130717 Docket: 2503041, 2503042, 2549200 Registry: Pictou Between: Her Majesty the Queen v. Michael Corwyn Paris VERDICT Judge : The Honourable Judge Del W. Atwood Heard: 28 May, 9 July 2013, in Pictou, Nova Scotia Charges: Assault, para. 266(b); uttering a threat, para. 264.1(1)(b); breach of form 11.1 undertaking, sub-s. 145(5.1), all under the Criminal Code Counsel: William Gorman, for the Nova Scotia Public Prosecution Service Adele England, for Michael Corwyn Paris By the Court :

Preamble [ 1 ] Michael Corwyn Paris and Amy Paris were married in the summer of 2007. Their relationship faced many challenges: conflicts arose over the handling of money; Ms. Paris developed a chronic illness; there were mutual suspicions of trust and fidelity. Tensions appear to have come to a breaking point in August of 2012. The Westville Policing Service was called in, and Mr.

Paris was charged with assaulting his wife on 29 August 2012, threatening her on the same date, and then contacting her on 8 September 2012 in contravention of a police-imposed undertaking. [ 2 ] I will seek to explain in this judgment why it is I find Mr. Paris guilty of the offence of breach of undertaking, but not guilty of the offences of assault and uttering threats.

Evidence [ 3 ] Amy Paris was the principal witness for the prosecution; she told the court about her marriage to Michael Paris; she described the progressive deterioration of the relationship; she identified 17 August 2012 as the watershed date, as it was then she decided that she did not want to be with the accused any more. Ms. Paris then described the 29 August 2012 assault: it began as an argument in the bedroom over Ms. Paris wanting to end the relationship and Mr. Paris complaining to his wife that she was not giving him space; this escalated quickly to an assault, with the accused grabbing Ms.

Paris around the jaw, picking her up and throwing her on the bed. Ms. Paris ran out of the room in tears. She encountered J., her 10-year-old son of a prior relationship, who was also very upset and who told her, “ Dad got me by the head and threw me. ” This portion of Ms. Paris ’ evidence was received as narrative, and not as proof of the truth of what was said by her son, as he was not called as a witness. I will note the significance of this later on in my judgment. When confronted by Ms. Paris, the accused denied attacking J.. [ 4 ] Ms.

Paris described how she was then forced by the accused to write a letter declaring that she was leaving: leaving her husband, leaving him the house and leaving the children in his care. A copy of the letter was tendered in evidence as Exhibit No. 2. Ms. Paris stated that the accused told her that if she ever were to establish a relationship with someone else, “ he would kill me and that person. ” Ms. Paris informed the court that she then went to her mother ’ s, where plans were made to dine at a local restaurant. [ 5 ] On the following day – 30 August 2012 – Ms.

Paris said she helped the accused make arrangements for educational funding through the constituency office of a local MLA. She then went to the local Family Services centre, met with a staff person there, to whom she revealed what had happened to her the day before. The staffer called police. Ms. Paris wound up giving a statement about the 29August assault; furthermore, she told police about a similar incident that had occurred on 17 August, less than two weeks before. Ms.

Paris moved in with her mother at this point; she learned that the accused had been arrested when she was provided by police with a copy of his Form 11.1 undertaking; an exemplified copy of that bail document was put before the court as Exhibit No. 3. The undertaking included a condition requiring the accused “ abstain from any communication, directly or indirectly [sic], with Amy Christine Paris. ” [ 6 ] Ms.

Paris testified that on 8 September 2012 she received a text message from the accused accusing her of “ slinging dirt ” about him, informing her of his plans to give away two family pets, and intimating of her engaging in marital infidelity. Ms. Paris provided a hard copy of this text message to a police investigator; that document was tendered as Exhibit No. 1. [ 7 ] Ms. Paris acknowledged on cross-examination that she had not disclosed to police the details of the alleged threat – the one uttered by the accused in the immediate aftermath of the 29 August assault – until mid-December 2012.

When asked whether she had suffered from an alcohol or drug problem, she replied: “ I was an emotional wreck when this all happened. ” She admitted that her children had come into the care of the Department of Community Services; she assumed considerable responsibility for this having happened to her children: “ I hold myself responsible for allowing it to get this far . . . the abuse . . . the mental abuse . . . and being told it was okay to use drugs. ” Somewhat surprisingly, Ms.

Paris was asked to confirm on cross-examination that the accused had been convicted of assaulting her on 17 August 2012; she confirmed this quite readily. It is important to note that this is the first time I have conducted a trial with Mr. Paris as the defendant, so that any conviction for an incident on 17 August must have been entered by another judge. [ 8 ] The court heard from three police officers: Cst. Paquet, who investigated the assault and the threat, and who took a statement from Amy Paris on 30 August 2012; Cst. Burns, who investigated the breach of undertaking, and who interviewed Ms.

Paris on 8 October 2012 when she showed police the text message she had received from the accused; and Staff Sergeant Stewart, who investigated the charge of uttering threats when it was reported by Ms. Paris on 17 December 2012. Much of their evidence consisted of narratives of what they had been told by Ms. Paris and members of her family. Of the three, Cst. Burns was the only one who did any real digging, as it was he, and he alone, who sought and obtained a statement from the accused.

Defence counsel waived having a voir dire to determine the statement ’ s admissibility, [1] and it was received in evidence as Exhibit No. 4. In that statement, Mr. Paris is recorded as admitting to texting his wife on 8 September 2012 knowing that he was prohibited by the 11.1 undertaking from doing so. [ 9 ] The accused chose to call evidence. His niece Cierra Paris described how she had come to live with her uncle and his wife from July to September of 2012.

She informed the court that her uncle asked her to move in as family life was “ going downhill and he wanted someone there. ” Cierra Paris witnessed many ups and downs in the home, with the “ downs ” involving arguments about money and Amy Paris ’ alleged drug use. Cierra Paris stated that her memory of 29 August 2012 was that it was the day her uncle was arrested; she did not see the accused assaulting his wife on that day. When asked whether she had heard arguing, she testified: “ Amy was freaking out and that ’ s why I came downstairs. ” [ 10 ] Ms.

Marilyn Bray, who has known the accused for over twenty years, gave evidence for the defence. She stated that the accused was a calm person who wanted only to see his wife get off drugs. [ 11 ] The accused testified. He denied assaulting or threatening his wife. Rather, it was she who had assaulted him, back on 16 August 2012. The source of the conflict in the home was Amy Paris ’ use of drugs. On cross-examination, Mr. Paris acknowledged that he yelled at his wife on occasion. He acknowledged a prior record for assaults and breaches of court orders, the most recent conviction having been recorded in 2002.

Legal principles

[ 12 ] It is clear that an accused charged with assault, uttering threats and breach of probation may be convicted on the uncorroborated evidence of a single witness. However, in determining a true verdict, a court must consider certain fundamental legal and constitutional principles. [ 13 ] Given that defence called evidence at this joint trial of these charges, I apply the law as set out in R. v. W. (D.) [2] : if I believe the evidence called by Mr. Paris, I must find him not guilty; even if I do not believe the evidence of Mr.

Paris, but that evidence should leave me in a state of reasonable doubt, I must find him not guilty; even if I were not to believe Mr. Paris, and his evidence not leave me in a state of reasonable doubt, I must still ask myself whether, based on the evidence I do accept, I am satisfied that the prosecution has proven each and every element of the offenses beyond a reasonable doubt, and, if not, I must find Mr. Paris not guilty. [ 14 ] The W. (D.) algorithm is not intended as a form of automated reasoning; the Supreme Court of Canada, itself, made this clear in R. v. S. (J.H.) [3] and R. v.

Avetysan . [4] Even in cases when an accused has called evidence, a trier of fact might conclude that the prosecution ’ s case has failed to prove beyond a reasonable doubt one or more essential elements of a charged offence, so that an acquittal might logically and legally flow from an analysis of the evidence without the need to analyse extensively any exculpatory evidence offered by an accused. Similarly, a trier of fact might find reasonable doubt to have arisen from a combination of defence and prosecution evidence.

Particularly applicable here, reasonable doubt will arise if a Court cannot decide whom to believe. [5] There are an array of possible analytical permutations which might not fit nicely in the W. (D) . framework. [6] What is essential is that the Court keep the following core and constitutional principles of criminal justice in mind: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; • it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; • finally, more is required than proof that the accused is probably guilty -- a court which concludes only that the accused is probably guilty must acquit. [7] [14] Mr.

Paris is being tried for three counts charged in three informations: one count of threatening Amy Paris with bodily harm; one count of assaulting Ms. Paris; and one count of contacting Ms. Paris in violation of a Form 11.1 undertaking. All were prosecuted summarily. The three informations before the Court were tried jointly by consent, in accordance with R. v. Clunas . [8] Although tried jointly, the Court must consider each case independently.

The procedural reason for this is that the prosecution did not advance a similar-fact-evidence application, a prerequisite for an expansive treatment of incriminating evidence in multi-count trials. [9] Furthermore, the prosecution did not bring a similar-fact evidence application regarding Mr. Paris ’ supposed conviction for the 17 August 2012 assault. The principled reason for a specific-charge-limited analysis of the evidence is that the Court must not be overwhelmed by the number of charges arrayed against Mr. Paris.

Additionally, the Court must not engage in propensity reasoning; this means, if I were to find Mr. Paris had committed one or more of the offences of which he stands charged or was supposedly convicted, I should not utilize that finding to draw the inference that Mr. Paris is a person more likely from his criminal conduct or character to have committed the remaining offences. [10] Certainly, there is much circumstantial evidence that the Court has heard in this trial – evidence of chronology, family history, interpersonal relationships, alleged substance-abuse problems of Ms.

Paris – that is relevant to the entire sweep

of charges before the Court. [11] Furthermore, Amy Paris is a complainant in all of the cases being tried before me; it is clearly necessary that I consider the whole of her evidence in relation to all of the counts. [12] Finally, I would observe that findings made regarding the credibility of a witness pertaining to one particular count may carry over into credibility findings regarding other counts. [13] [ 15 ] In R. v.

J.C.H. , the Newfoundland and Labrador Court of Appeal prescribed what I consider to be the highly appropriate sequence of judicial analysis in a criminal case, requiring an initial focus on evidence presented by the prosecution. [14] Rowe J.A. provided an entirely insightful explanation for this approach: [13] A trial judge should generally first consider the evidence offered by the Crown in support of the charges especially that of the complainant. That sets out the case that the accused has to meet.

Only if there is sufficient strength in that evidence is it necessary to consider the evidence (if any) led by the accused. That sequence accords with the burden of proof resting with the Crown.

The danger in considering the evidence of the accused first and determining whether it is worthy of belief before considering the Crown evidence is that it may induce the judge to place too great an emphasis on the remaining evidence, i.e. the Crown evidence, without carefully scrutinizing that evidence in the context of the evidence as a whole to determine whether it can support the charges to the standard of proof required.

In effect, it creates a tendency for the judge to consider the evidence in an "either/or" way, thereby departing from the required burden of proof. [15] Analysis [ 16 ] It is asserted by the prosecution that the Court ought to accept the evidence of Amy Paris as it was “ honest, forthright, cogent, clear and compelling. ” If, by this, it is meant that Ms. Paris testified in a confident manner, I would agree.

But this is the sort of metric – measuring credibility and reliability by reference to demeanour – that our Court of Appeal has stated rightly ought to be approached with caution. [16] [ 17 ] When I assess the content of Ms. Paris ’ evidence – indeed, the content of the entirety of the case for the prosecution – I am confronted by two substantial questions which I am unable to resolve. [ 18 ] First of all, with respect to the charge of uttering threats, I am unable to identify a plausible reason why Ms. Paris would not have disclosed that allegation to police until her meeting with Sgt.

Stewart on 17 December 2012. The court certainly appreciates the vulnerability of human memory – and by that I include the discrete processes of memory recall and retrieval – to factors such as stress, and so I understand why she might have omitted mentioning it to Cst. Paquet on 30 September 2012. But Ms. Paris met only a little over a week later with Cst. Burns and showed to him the text message she had received from the accused.

The content of that text – particularly the words: “ I have the right to know if my wife is cheating on me ” – resonated of the words allegedly used by the accused in uttering the threat: if she were ever to see someone else, he would kill her and that person. Would this text message not have triggered the memory of the threat? In any event, what was it that revived the memory or otherwise prompted Ms. Paris to go to police almost three months later?

I find myself fixed with an unresolvable doubt about the threats charge. [ 19 ] The Court recognizes that it falls within the discretion of the Crown to call – or not call – evidence as it sees fit; accordingly, the Court must be guarded in commenting on the failure to adduce evidence. Nevertheless, I am ever mindful that reasonable doubt may arise, indeed, from the absence of evidence. [17] With respect to the charge of assault, the prosecution did not call Ms. Paris ’ son, J..

Recall Amy Paris ’ evidence: immediately after she was assaulted by her husband on 29 August 2012, she encountered her son, who told her tearfully that he, too, had just been assaulted by his dad, and in a manner very similar to the assault upon Ms. Paris. Had J. been called as a witness for the prosecution, and had he confirmed his mother ’ s recollection, his testimony would have served as a very strong circumstantial guarantee of Ms.

Paris ’ credibility and accuracy as to the accused ’ s violent state of mind at the time, and as to her status as a victim of a continuing offence of family violence; this would not have involved resort to propensity reasoning. Conversely, had he not confirmed his mother ’ s evidence, a major credibility issue would have arisen. Why was J. not called? Did Ms. Paris not tell Cst. Paquet about him? If she did, did the officer not interview him? Or did he interview the boy? If so, what did he say happened? I ask these questions rhetorically, as it is now too late for answers to be offered.

What I do know is that this highly pertinent witness was not called to testify. Beveridge J. (as he then was) in R. v. Leblanc noted that the failure to call a highly material witness might have a significant impact on the strength of the case for the prosecution. [18] I find that to be the case, here. [ 20 ] To be sure, the Court was left with many questions after having heard the testimony of the accused.

However, it is not for the accused to prove his innocence; it is for the prosecution to prove guilt. [ 21 ] With respect to the charges of assault and uttering threats, I am simply unable to determine whom to believe. Accordingly, I am in a state of reasonable doubt, and I must find Mr. Paris not guilty of those charges.

[22] The breach-of-undertaking charge is different. The accused admitted in his statement to Cst. Burns and acknowledged on thewitness stand that he sent a text to his wife on 8 October 2012 knowing that he was subject to a Form 11.1 undertaking not to contact herin any way. [23] Sub-s. 145(5.1) of the Criminal Code provides that:

(5.1) Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of anundertaking entered into pursuant to subsection 499(2) or 503(2.1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. [24] The statute places the burden of establishing a lawful excuse upon the accused. As this is a defence-onus burden, the standard ofproof is on a balance of probabilities only, and an accused is not required to prove the existence of a lawful excuse beyond a reasonable doubt.[19] The accused testified that he sent a text to his wife in response to a text from her. Even if a responsive communication mightbe said to constitute a lawful excuse for violating a no-contact bail condition, the fact is that I do not believe the accused’s evidence. Thecontent of Mr.

Paris’ message to his wife satisfies me completely that he was not replying to a text from her; instead, he was demandingan explanation for rumours he believed his wife had been spreading about him, thus the reference to “slinging dirt.” Evidence that is notbelieved cannot constitute a lawful excuse. All of the essential elements of that offence have been proven, and I find Mr. Paris guilty ofthe charge under sub-s. 145(5.1) of the Criminal Code. JUDGMENT ACCORDINGLY. _______________________________________ J.P.C. [1]See R. v.

Park , (SCC), [1981] 2 S.C.R. 64 as authority for the proposition that a confessional voir dire may be waivedby an accused. [2] (SCC), [1991] 1 S.C.R. 742 at para. 28. [3]2008 SCC 30 at para. 13. [4]2000 SCC 56 at para. 1. [5]R. v. H.(C.W.) , (1991), (BC CA), 68 C.C.C. (3d) 146 at p. 155 (B.C.C.A.). [6]Supra note 2 at para. 10. [7]See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 at para. 36. [8] (SCC), 70 C.C.C. (3d) 115 at para. 28 (S.C.C.). See also sub-s. 591(1) of the Criminal Code. [9]R. v. F. (T.C.) 2006 NSCA 42at para. 27. [10]Ibid. at paras. 29 and 31. [11]Ibid. at para. 45. [12]Ibid.; R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333 at paras. 37-39. [13]R. v. MacIntosh 2011 NSCA 111 at para. 176. Affirmed on other grounds,

2013 SCC 23. [14]2011 NLCA 8 at paras. 12-14. [15]Ibid. [16]R. v. P-P (S.H.), 2003 NSCA 53 at paras. 28 to 30. [17]R. v. Morin (1988), (SCC), 44 C.C.C. (3d) 193 at para. 33 (S.C.C.). [18]2009 NSSC 221 at para. 65. [19]R. v. Manuel, (NS SC), [2000] N.S.J. No. 27 at para. 14 (S.C.) .