R. v. Disheau, 2015 ONCJ 145

Information No. 14-69 Citation: R. v. Disheau , 2015 ONCJ 145 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DARREN DISHEAU REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on January 13, 2015 at ORANGEVILLE, Ontario APPEARANCES :

R. Feldstein Counsel for the Provincial Crown D. Howick Counsel for Darren Disheau ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment ...starting at page one

Transcript Ordered: January 13, 2015 Transcript Completed: March 16, 2015 Ordering Party Notified: March 17, 2015 TUESDAY, JANUARY 13, 2015 REASONS FOR JUDGMENT PUGSLEY, J. (Orally): Darren Disheau was charged with assault and breach of probation. The alleged assault took place on January 22 nd , 2014 at Caledon and the complainant was the defendant’s common law spouse at that time. The alleged breach of probation was of the statutory term keep the peace and be of good behaviour imposed upon the defendant on the 19 th of December 2013 by Justice Currie here at Orangeville.

The complainant testified that she, the defendant and three children resided in Caledon at the time of the alleged assault. She and Mr. Disheau had separated previously due to a domestic altercation engaging criminal charges against the defendant. They reconciled after he was sentenced by Justice Currie. On the day in question the couple had argued. The complainant threw the defendant’s boots outside. The defendant broke a dish. The complainant threw out the defendant’s mug and plant according to the evidence of the complainant. The defendant then left the house. The complainant put the children to bed.

She sent the defendant a text message telling him he was not to return and that they were done. By way of background, Exhibit Five is a copy of the defendant’s December 19, 2013 probation order. That order prohibited any direct or indirect association with the complainant except with her written, revocable consent filed with the probation officer. The complainant had given such consent prior to the date of the alleged assault. The defendant replied by text that he agreed that they were finished. The complainant locked the doors up and went to bed.

At roughly 3:30 to 4:00 a.m. she woke up and went downstairs, and found that the defendant was sleeping on the couch. She turned on the lights and the defendant woke up. She testified that he was angry at being awakened. She could tell that the defendant had been drinking and there was a beer on the coffee table.

They conversed in angry and loud voices. The complainant states that the defendant splashed beer in her face. She asked that he leave and he declined, saying that it was minus 30 degrees out and where could he go. The complainant took away the defendant’s car keys, because, as she testified, she did not want him to drive, because he had been drinking. The defendant was angry at the complainant taking his keys away. He went up to the master bedroom and came down with three or four bottles of perfume, which he then smashed on the floor. He kicked a perfume bottle in the direction of the complainant.

The defendant was described as being very loud and had opened up the doors to the children’s bedroom upstairs to make sure that they were awake. He then went to the basement laundry room to smoke a cigarette in the bathroom area. The complainant testified that she did not want him to go downstairs, that she did not like it when he smoked in the house and that she wanted him to leave the house. She followed him downstairs and tried to block his way into the laundry room.

She testified that the defendant grabbed her from behind and threw her so that she hit the washing machine, and then again into the laundry room sink. The defendant then threw her to the ground and put his hands around her neck, and tightened them, choking her. She found it hard to breathe and called out to her son to call the police. The defendant also stepped on her thumb while he was on the ground. She then got up. The defendant sat on the toilet seat and indicated that she was trapped beneath his legs.

She got out from under and then sat on the bathroom floor, and they both lit up cigarettes, and stared at each other. The defendant tipped his cigarette ashes on to her. The complainant testified that she got up and noticed that the phone was in use, and she went to check on her son, Sam. She found that he was on the phone with his father, her ex-husband. She spoke to her ex-husband who said he was coming to pick up Sam and his sister, and that he was calling the police. The complainant helped the children to get ready. She told the defendant that the police were coming.

He was very upset and yelling that it was all her fault, and then he went outside. The police then attended. By way of an admission the 9-1-1 recording was admitted into evidence. The complainant’s ex-husband had called the police after Sam telephoned him. Sam indicated he was unsure if the complainant had been hit or not. The complainant had told her ex-husband that everything was all right. After giving the police a statement the complainant was seen at the hospital. She had cuts, scratches, and redness, and bruises, and was photographed there.

The complainant was the subject of a vigorous cross-examination by Mr. Howick, the defendant’s counsel. She testified that she was unsure as to what she and the defendant had argued about on the night in question, but agreed that the defendant went into the garage to smoke a cigarette. On occasion they both smoke in the laundry room bathroom area as well. The complainant agreed that she threw the defendant’s new boots outside, because she was angry and they had argued, and as was typical the defendant had left. The defendant returned from the garage and a dish was then broken.

The defendant told her that the breaking of the dish had been an accident. The defendant then took his van and left. She texted him on her cell phone that she had taken off her ring and that they were done. After the defendant returned she took away his keys so that he could not drive, because she knew that he had been drinking. She described the defendant as an alcoholic and stated that she knows when he has been drinking, and she found a beer on the family room table where he was sleeping. She denied throwing a cell phone at the defendant.

She did tell the defendant several times he was to leave and he stated where would he

go, but she did not give him his keys, because he was drunk. He could have called a cab or his family in order to leave. The complainant agreed that she wanted to stop the defendant from going into the laundry room bathroom to smoke a cigarette. She stated that the defendant did not grab her by the jacket to get his keys back, because she was in her pajamas and rather he grabbed her arms, and pushed her, and her face hit the washing machine, and then a second time, and she hit the sink.

The complainant denied that the defendant covered up her mouth to stop her from waking up the children, but agreed that they both smoked in the bathroom after the described assault. While she called Sam earlier, because she was scared, she was in shock when she and the defendant each lit up a cigarette in the bathroom, and smoked them together. She told her ex-husband on the telephone that she and the defendant had only argued. She said that because Sam was there in the room at the time.

She understood that her ex-husband had called the police, because he was coming to pick up the children at 4:00 a.m. and she and her ex-husband had had their own past issues. She denied that the assault on this occasion was a struggle back and forth between the parties. A nurse from the hospital gave brief evidence as to the marks that she observed on the complainant at the hospital, which marks were then photographed.

The Crown filed the documents with regard to the elements of the breach of probation charge stipulating that those were filed such that a finding of guilt on count one was the basis upon which the Crown sought to prove the breach of the term of keep the peace and be of good behaviour in count two. The defendant was the sole defence witness. Mr. Disheau testified that on the day in question he had cooked the evening meal for the family. He cleared the table and went to the garage to have a cigarette. He returned and he, and the complainant argued about the timing of access, and about his children.

He went out to the garage again for another cigarette. The complainant threw out his boots, so he threw them back into the house and accidentally broke a dish. The complainant then broke his mug and told him to get out. The defendant testified that he left, drove to The Beer Store and got six large tallboy beer cans. He returned and parked in the driveway, and the complainant texted him that they were through. He was not to come back. He replied, “Fine”, but he also knew that this was not a new thing with the complainant, so he remained in the truck and ran it to keep warm in the driveway.

He later went into the family room and fell asleep on the couch there. The next thing he knew the complainant had thrown a cell phone at him and woke him up, and yelled for him to get out of the house. He lay on the couch and said to the complainant that he guessed she had read his cell phone where his sister had told him he could go to her house near Whitby and that everything was under control. He then went to leave the house and discovered that his keys were not in his jacket. He then took off the jacket and asked the complainant where his car keys were.

She told him to get out and he refused saying that that was not an option. He testified it was minus 30 degrees that night. He went and got the complainant’s perfume and told her that if she did not give him his keys he would break the perfume bottles. She did not give him the keys, so he dropped the perfume bottles on the floor.

The defendant stated that he wanted to get away and have a cigarette in the bathroom, but the complainant went ahead of him and at the time she was wearing a long sweater, and he grabbed at that sweater to try and get his keys, and the complainant struggled away, so he let go, and when he let go the complainant accidentally fell. The complainant then went to grab his cigarettes and he grabbed at the cigarettes, and then the complainant tried to stop him from going into the bathroom, but he pushed through and when he sat down to smoke the complainant was on the floor. He assumed that she had tripped.

He lit up a cigarette and the complainant called Sam to call 9- 1-1. The defendant testified that he then reached up and covered over her mouth with his hand, and grabbed the side of her neck, and said, “Stop, you’re crazy” to the complainant. They then sat in the bathroom and had a smoke. The complainant then left and then

returned, and told him that Sam had called his father, and that her ex-husband had then called the police. He went outside and waited for the police to arrive. The defendant denied choking the complainant with his hands. He stated he only grabbed her neck for a second and told her to stop, and tried to cover up her mouth. He has no idea how the complainant was hurt, because he saw no signs of injury while they were in the bathroom together. He described feeling trapped and if he had received his keys back he would have left the house. He also assumed that they would deal with it all in the morning.

In cross-examination the defendant estimated that he had left the house the first time at about 7:45 p.m. and returned to the driveway by 20 after 8:00. He testified that he only drank three of the large beer in the car plus one further as he lay on the couch. He also drank one large beer while waiting for the police to arrive. He testified that he could have gone to his sister’s house, but that these disagreements happened frequently and he thought this was no different.

He agreed that there had been physical events previously, but in this case he only let go of the complainant’s coat and the complainant then flew forward, hitting the washing machine. That and their struggle over the cigarettes led to the complainant’s observed injuries. He decided to have a smoke in the bathroom, because he knew if he went outside to have a smoke in the garage the complainant would have locked him out. He thought that the situation was under control. He waited outside to let the matters cool down the first time.

He testified that although legally it was the complainant’s house it was his home too. He denied, however, that he was hurt and bothered, and angry, because he had been excluded from his home by the complainant. He stated that he could not leave, because she would not let him have the car keys. He agreed that he had been drinking and that he drank alcohol on a daily basis. They had fought over his drinking in the past. On this occasion he wanted to leave the second time, but he had no transportation. He was angry to be in that position, but was not angry at the complainant for putting him in that position.

He denied being loud and waking up the children. He agreed that he did drop the perfume bottles when the complainant would not give him back his car keys, but his level of anger did not escalate. Going outside to smoke a cigarette was not an option until he knew that the police were on their way. The complainant only fell when he let go of her after he realized that his keys were not in her pocket. He grabbed her to search her pockets for the keys. He wanted those keys so he could leave. He did not choke the complainant to stop her from screaming.

He only put a hand over her mouth to cover her mouth so she would not wake up the children, then grabbed her neck and told her she was being crazy. By the defendant’s evidence there was no physical altercation. The complainant only wanted him out and they struggled. He never hit her and never intentionally harmed her, as he stated. He wanted to go into the bathroom to smoke and the complainant was dragged as he went forward, trying to stop him from going into the bathroom. In the past he has locked himself in the bathroom many times to smoke and get away from the complainant.

It was normal and he would then be able to collect his thoughts. He described on this occasion he was not intoxicated. The complainant had tried to dump out alcohol in the past, leading to a physical altercation when he had stopped her from doing so. Here, however, there was no force used and it was just a struggle. There were no further witnesses. The defendant properly points to the test in R. v. W.D. and submits that there were internal inconsistencies in the evidence of the complainant such that the charge has not been proven beyond a reasonable doubt.

Much of the evidence as to cuts and bruises is similar, but with a different causation alleged. Notably, the complainant told her ex- husband on the telephone that there was no problem and that he did not need to pick up his children. It was submitted that it was reasonable for the defendant to remain in the house, because it was very cold outside. The defendant did concede that by covering up the complainant’s mouth a minor assault may well have happened.

The Crown too acknowledged the R. v. W.D. test, but submits that the complainant’s evidence was clear, was supported by the physical evidence and that the defendant’s evidence had no air of reality. A conviction is sought. Both counsel, as just stated, referenced the leading case of R. v. W.D. in the Supreme Court of Canada as the basis to assess the competing evidence led by the complainant and the defendant in this case.

The test, briefly put, is based on the fact that the evidence of a defendant must be assessed in a special way, because the burden of proof must always lie upon the Crown and must always be proof beyond a reasonable doubt. In short, W.D. requires me to undertake a three-step test of the evidence of the defendant here. First, if I believe the defendant’s denial of the assault I must acquit him. Next, if I do not believe the defendant, but his evidence leaves me in a reasonable doubt I must also acquit him.

Finally, if the defence evidence is not believed and does not leave me in a reasonable doubt I must nonetheless be satisfied that the Crown has proven each element of these offences beyond a reasonable doubt before I can convict the defendant. The Crown agrees that they will seek a conviction on the breach of probation only if I convict the defendant of the assault. The W.D. assessment of the competing evidence here is, in the end, not difficult. The events of the evening in question started in a silly and immature way. Articles were thrown and a dish broken. The defendant left the house.

I accept the evidence of the complainant that she told the defendant to leave and not return. The defendant agreed and had taken steps to arrange to stay at his sister’s house. He bought and consumed some alcohol, but testified that he was not intoxicated. I do not believe that the defendant is a reliable witness as to his level of sobriety here. He accepted that he drinks alcohol every day and astonishingly indeed consumed a large beer while waiting for the police to arrive. The complainant is a far more reliable witness as to the effects of alcohol on this defendant.

She had not been drinking and from experience knew that the defendant was an alcoholic, and on this occasion was intoxicated. She wanted him to leave when she discovered that he had returned to the house without her knowledge or permission, but also had a valid concern that he not drink and drive. The defendant, by both her evidence and his, was bound and determined to get his keys back. He petulantly smashed her perfume when she refused to give the keys. He then refused to leave.

As the defendant and the complainant agreed in their evidence he decided to go into the basement to have a cigarette instead of leaving, because leaving - that is doing what the complainant told him to do - was, as he testified, simply not an option. The defendant denied pushing the complainant, but testified that he decided to see if the car keys were in the pockets of the complainant’s jacket and grabbed that jacket to see if they were there. Only when he found that they were not and let go did the complainant fall, by his evidence, and injure herself.

Any other injuries were caused by the defendant continuing to move towards the bathroom while the complainant tried to stop him from doing so. The complainant was scraped and scratched in a mutual struggle, not an intentional assault as the defendant testified. In my view the complainant’s evidence was both clear and forthright, and was hardly touched by a vigorous and skilled cross- examination. The biggest inconsistency in her evidence was that she told her ex-husband that there was nothing wrong and no need to come and pick up the children.

The complainant explained this, stating that she and her ex-spouse had their own issues between themselves, and that her ex-husband was only calling the police because he was picking up the children in the early morning hours, and was afraid of a confrontation because of that. By implication he wanted the police to be there in case the complainant objected to his picking up of his son and daughter. There is no evidence to suggest that the complainant knew after they exchanged text messages that the defendant was going to return home.

I accept her evidence that she was surprised to find the defendant sleeping on the couch. Both parties then engaged in a very loud confrontation, but the parties did not have a balanced right to remain in the house. It was the complainant’s house, although the defendant had moved back after his previous criminal charge was concluded. The defendant was on a probation order, filed as an exhibit and which I had signed on behalf of Justice Currie that made his contact with the complainant contingent on her written, revocable consent. By his text he had agreed that they were over as a couple.

He testified that he had an offer to stay with his sister, which he decided not to take up. He simply got alcohol, drank alcohol, came back into the house and assumed that everything would be fine in the morning as it had before. I attach no meaning to the defendant’s assertion that because it was very cold there was no way he could have left. No defence of necessity was argued, nor could such a defence be successful here since the residence of the parties at the time was at 195 Dale Street, a

residential street address in Bolton, Ontario, not somewhere out in the middle of the country. I accept the evidence of the complainant corroborated by the defendant’s actions. Indeed his evidence was that, plainly put, he was not going to leave unless he could drive, and that he smashed the perfume bottles, and grabbed at the complainant, by his own evidence, in attempts to secure the keys to the vehicle. He made no reference to attempting to call a cab. Indeed a short walk from the house would have taken him to the safety of the Bolton Police Detachment.

As already observed I accept that the complainant’s evidence as to the state of inebriation was accurate. Her action to prevent the defendant from driving was natural and proper on this occasion. Unlike the complainant the defendant’s evidence was evasive, self-serving and conclusatory. For example, he testified, citing the legal test of intention. He minimized his alcohol consumption and overstated the hazard of departing the house.

I could not accept his concocted evidence that while angry he was never loud and that he did not wake up the children while going upstairs to get the perfume bottles so he could smash them. He denied being angry when such was obviously the case. Indeed his evidence at its core was not believable whenever it sought to downplay his own role in this adventure. Clearly, however, the defendant was angry, inebriated and, as he said, leaving was simply not an option he was prepared to consider. Not, I conclude, because he could not leave, but rather because he would not leave.

Indeed his own evidence was that this had happened many times before and had always been sorted out. In other words, why should he leave this time? The defendant’s evidence as to how the complainant came to be injured was both concocted and in the end did not amount to a defence to the charge that he faces. Even on his own slanted version of the facts the defendant’s evidence admitted to an assault. For example, he agreed that the complainant fell into the washer, but testified that this was when he let go of her coat after searching her coat for his keys.

First of all I accept the complainant’s evidence that she was not wearing any coat. She had just woken up and was in her pajamas. Second, grabbing someone to see if there are keys in their pocket without any consent is itself an assault. Letting go and having that person then react by falling and hurting themselves is a continuation of that assault. Dragging someone across the floor to get into a bathroom to have a cigarette as described by the defendant is an assault. Covering a person’s mouth to stop them from calling out is an assault.

Taking them by the side of the neck and calling them crazy is also an assault. All these events came from the defendant’s own evidence in chief and in cross. As noted during submissions the defendant’s own evidence supports a conviction here. Beyond this, however, I reiterate that I found the evidence of the defendant in general to be incredible and not capable of belief. The events in question were as the complainant testified and not as the defendant described them in his evidence. This is not to say that I am seeing the evidence as engaging in a credibility competition between the parties.

This is only to observe that the complainant, unaffected by alcohol and clearly unhappy when she was testifying about the end of her relationship with the defendant was reliable, and credible in that evidence. And when her evidence and that of the defendant differ I can only accept on all of the evidence that her version is what happened. The defendant’s evidence was clouded by alcohol and I conclude by his own habit of getting his own way when crossed. I do not believe him when he denies the assault here.

His evidence does not leave me in a reasonable doubt as to that assault and the Crown has proven each necessary element of the assault beyond a reasonable doubt. I reach this decision with one caveat, however, which will bear on sentence. It is unclear to me whether the evidence of the intentional

choking described by the complainant is sustained by the physical signs that were photographed by the police at the hospital. These marks are equally consistent with the grip on the side of the neck described by the defendant and I have some doubt as to whether the complainant would have been so calm in denying the assault to her ex-husband had she been choked by the defendant as she recalled. I find that there was indeed a hand to the neck and a covering up of her mouth, which in and of itself could have been a momentary blocking of her ability to breathe.

The complainant may well have had the defendant’s hands around her neck, but I do not find that that is proven beyond a reasonable doubt. The defendant is not charged with choking, but rather with common assault and the proven evidence of that assault is clear, and unassailable. A finding of the assault here then leads me to a finding that the defendant did breach the term of keep the peace and be of good behaviour, as set out in his probation order entered into barely one month before, before Justice Currie.

Accordingly the defendant must be convicted of both counts today. ...CLOSING REMARKS NOT REQUIRED FOR TRANSCRIPTION AT THIS TIME ...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Disheau in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_101_20150113_090733__6_PUGSLEB.dcr , which has been certified in Form 1.

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