HER MAJESTY THE QUEEN — v. —, 2016 ONCJ 820

ONTARIO COURT OF JUSTICE CITATION : R. v. Ruel , 2016 ONCJ 820 DATE : October 3, 2016 BETWEEN: HER MAJESTY THE QUEEN — AND — MARIO RUEL Before Justice E. Murray Heard on September 9, 2016 Reasons for Judgment released on October 3, 2016 Ms. Collins .............................................................................................. counsel for the Crown Ms. Paddi ............................................................................................ counsel for the accused MURRAY, E. B.

J.: [ 1 ] Mario Ruel is charged with threatening his former spouse Sasha Ruel with death on January 17, 2016. [ 2 ] This is my decision after trial on this charge in the Integrated Domestic Violence Court. The only evidence at trial was the testimony of Sasha Ruel. The evidence [ 3 ] Ms. Ruel’s evidence is set out below. [ 4 ] Mr. and Ms. Ruel are the parents of one daughter, E., 8 years old. They separated soon after E.’s birth and were involved in acrimonious litigation regarding the child which culminated in a final order February 2, 2013. Pursuant to that order, Ms. Ruel has custody of E. and Mr.

Ruel has access to the child. [ 5 ] The court which made the final order had a report from a clinical investigator of the Office of the Children’s Lawyer. That report noted, among other things, the continuing conflict between the parties about adhering to a

schedule for the visits. Ms. Ruel was adamant about following the times set out for pick up and return of the child; Mr. Ruel resented that Ms. Ruel could not be more flexible about time, and tended to want to return the child earlier than scheduled. Ms. Ruel testified that this was and continues to be a “huge issue” between them. [ 6 ] The final access order contained a mistake; it provided that Mr. Ruel would have access on alternate long weekends only, when in fact he had been having much more frequent access, access on alternate weekends, pursuant to a temporary order which existed prior to the final order.

Pursuant to that prior order, Mr. Ruel was to return E. to her mother on Sunday evening at 8 p.m. on access weekends. [ 7 ] Neither party returned to court to correct the final order. Instead, the parties continued to follow the pattern of E. being with her father on alternate weekends, with a return at 8 p.m. Sunday. On access weekends the child was not picked up from Ms. Ruel’s home, but from a neutral location—school, daycare, or an activity program. Ms. Ruel would text Mr. Ruel as to the pickup location.

[ 8 ] Relations between Mr. and Ms. Ruel after separation were conflicted. [ 9 ] At one point Mr. Ruel called police, reporting that he thought that Ms. Ruel was kidnapping the child. [ 10 ] In January 2012, during an exchange of the child, Mr. Ruel became angry with Ms. Ruel over an issue regarding the child’s clothing. He threw a bag containing the clothing at her, and drew his finger across his throat while glaring at her. Ms. Ruel was scared, and went to police who directed her to a justice of the peace where she told her story. Ms.

Ruel testified that after attending at the justice’s office, she received a call from a Crown attorney advising that they were not “going to proceed”. Ms. Ruel understood that despite this withdrawal, there was still a peace bond in place which limited Mr. Ruel’s ability to interact with her. [ 11 ] Since the January 2012 incident, Ms. Rule has tried to limit her communication with Mr. Ruel to written communication by text or email, only dealing with E.. For a period of time, Ms. Ruel took the precaution of insuring that a neighbor was present at the time that Mr. Ruel returned the child on Sundays.

She had discontinued this practice by the time of the incident which gives rise to this charge. [ 12 ] Ms. Ruel testified that while she and Mr. Ruel could never be described as “friendly”, at the time immediately preceding this incident the situation between them was calm. Christmas access had gone well. As far as she was aware, there was no current dispute between her and Mr. Ruel. [ 13 ] Ms. Ruel lives in a 10-story apartment building in downtown Toronto, a building that has no concierge or security.

Visitors cannot get beyond the first door without being buzzed in by a resident. [ 14 ] E. was with her father for the weekend of January 15-17, 2016. Ms. Ruel was cleaning her bathroom early in the evening on Sunday January 17 th , expecting Mr. Ruel to return E. at 8 p.m. She describes what occurred. • At 7:22 p.m. she saw that she had received a text from Mr. Ruel, and that there were 4 missed calls from him, sent within a short time before. • Ms. Ruel called him back at 7:24 p.m. He was very angry, shouting “Why can’t you pick up your f…ing phone?”, “why are you never there when I want to bring her back?”.

He yelled “ you’re a f….ing idiot…this always happens”. • Ms. Ruel yelled that it was “not okay” for him to talk to her like this, and hung up. • Mr. Ruel called back immediately, saying “Get your f…ing ass down here”. • Ms. Ruel replied ”I’m just going to come down now and get my daughter”. [ 15 ] Ms. Ruel was panicked. She was pregnant and dressed only in a bathrobe. She did not stop to dress, but rushed down the elevator to get E.. She did not recall whether she had shoes on or not. [ 16 ] Ms. Ruel described what happened when she reached the ground floor and the elevator door opened. • Mr.

Ruel and E. were behind a glass door in the lobby. E. looked unhappy. Mr. Ruel threw the child’s backpack against the glass door. • Ms. Ruel buzzed to open the door and asked E. if she was OK. • Mr. Ruel came inside the frame of the glass door, close to Ms. Ruel, and kept yelling in front of E.. Ms. Ruel pushed the child behind her, towards the elevator. • Mr. Ruel’s tirade included these statements: ”f…ing whore”, “I can’t believe they gave you custody”. • Ms. Ruel , backing towards the elevator, said “I can’t believe you’re doing this….this is not okay”. • Mr.

Ruel said “What’s not okay is you’re not going to live to see your next birthday”. [ 17 ] Ms. Ruel then succeeded in backing into the elevator with E., closing the door and getting up to her apartment. She and the child entered and locked the door. She immediately called police to report the threat from Mr. Ruel. Ms. Ruel testified that this was traumatic for her: ”I was so scared. I believed that he was going to kill me”. [ 18 ] Ms. Ruel testified that despite this incident, she has not sought a change in the access order in the family court. She wants E. to keep seeing her father, and is content with the

schedule they have followed. Although she would like a third party was present on access exchanges, she has not re-opened the litigation. Analysis [ 19 ]

Section 264.1 of the Code provides as follows. 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or

(

c) to kill, poison or injure an animal or bird that is the property of any person. [ 20 ] The Supreme Court of Canada has held that in determining whether words spoken by an accused are a “threat” as contemplated by the Code, the words must be viewed objectively in the context in which they were spoken. The issue is whether the words would convey a threat of death or serious bodily harm to a reasonable person, a person in the situation of the complainant [1] .

Pre- charge conduct is relevant as to whether the complainant’s fear of the accused is reasonable [2] . [ 21 ] Defence counsel does not question that the words alleged to have been spoken by her client constitute a threat as contemplated by the Code. Rather, counsel questions whether those words were spoken at all. She argues that Ms. Ruel is not a reliable or credible witness, and says that she should not be believed. [ 22 ] I find that Ms. Ruel was a credible and reliable witness, and I accept her evidence with respect to the facts which are the basis for the offence. I note the following. • Ms.

Ruel was articulate and careful in her testimony, asking for clarification of a question when necessary. • Ms. Ruel readily agreed with defence counsel that she could have been mistaken about certain details of the incident, details that are insignificant. For example, she agreed that she could have received 3 calls and from Mr. Ruel that evening (as opposed to the 4 calls to which she testified). • Ms. Ruel admitted when she did not remember certain aspects of the incident, such as the content of the text from Mr. Ruel.

Since there was no record of the text content, it would have been open to her to assert that it contained content damaging to Mr. Ruel if she was so inclined. • The record of the times of phone calls produced by defence counsel in cross-examination corroborates Ms. Ruel’s evidence as to the times and duration of those calls. • Ms. Ruel has no motive to lie about the incident. She is not using the incident in an effort to change the order governing Mr. Ruel’s access. [ 23 ] In addition, I note that Mr. Ruel did have a motive to threaten Ms. Ruel on the day in question.

The evidence demonstrates that he has historically been agitated that Ms. Ruel was not flexible with the

schedule for visits, accommodating him when he sought an early return time. On the evening in question, he yelled at Ms. Ruel “This is always happening”. [ 24 ] The issues raised by defence counsel do not lead me to question Ms. Ruel’s reliability or credibility. • There were some inconsistencies between Ms. Ruel’s evidence at trial and her statement to police taken on the day in question, such as whether she received 3 or 4 calls from Mr. Ruel that evening. These inconsistencies were acknowledged by Ms. Ruel.

I do not consider them significant in assessing whether she has accurately remembered and communicated the threat alleged. • Defence counsel alleges that Ms. Ruel knew that no peace bond was issued as a result of the January 2012 incident, and that Ms. Ruel lied to police when she told them that there was. I cannot make that finding. The evidence establishes that Ms. Ruel went to a justice of the peace with an allegation that Mr.

Ruel threatened her and that she knew that the Crown later declined to proceed with a charge, but that she thought that conditions existed that were set out in “a piece of paper” that restricted Mr. Ruel’s contact with her for 12 months. • Defence counsel alleges that Ms. Ruel lied when, in response to a question from defence counsel, she replied that she did not. Counsel asserted but offered no evidence that Ms. Ruel has a record. I cannot find that Ms. Ruel was untruthful on this point. [ 25 ] Viewing the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr.

Ruel uttered the words alleged. [ 26 ] The words spoken by Mr. Ruel to Ms. Ruel on January 17, 2016 do not represent an isolated event. They were spoke in the context of years of conflict and acrimony. Mr. Ruel’s 2012 threat to harm Ms. Ruel is relevant to the assessment of whether these words would cause her to fear for her life or safety. [ 27 ] Viewed objectively, a reasonable person in the situation of Ms. Ruel would be afraid for her life and safety after hearing the words: “What’s not okay is you’re not going to live to see your next birthday”. [ 28 ] I find the accused guilty of the offence as charged.

Released: October 3, 2016 Signed: Justice E. Murray