r v. Dwight HOWE, 2014 QCCQ 3015

R. c. Howe 2014 QCCQ 3015 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-073172-121 DATE: April 17, 2014 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Dwight HOWE Accused REASONS FOR JUDGMENT [ 1 ] The accused is charged with one count of assault (s. 266b) Cr.c.) against Mrs. A. P.. The events that led to that charge took place on May 10, 2012, at Mrs. P.'s apartment situated on [...] in Town A. Both the accused and Mrs. P. testified before the Court. Mrs. P.'s medical report was also filed by the Crown. [ 2 ] Mrs.

P. stated that during a dispute, the accused grabbed her by the throat and repeatedly hit her head on the wall, which caused her a concussion. The accused denied those facts. He claimed that he pushed her to defend himself, and added that he did not see her head hit the wall. THE CROWN'S CASE [ 3 ] Mrs. P. testified for the Crown. Mrs. P. and the accused were in a relationship for five years. In October 2011, the accused moved in with Mrs. P. on [...] in Town A. In February 2012, just a few months after the accused moved in, Mrs.

P. decided to put an end to the relationship as the accused cheated on her and infected her with a sexually transmitted disease. [ 4 ] Although their relationship was over, Mrs. P. and the accused agreed that he would stay in the apartment until the end of June. They both agreed that they would continue to share the rent and other costs pertaining to the apartment. The also agreed that the accused would find another place to stay by the end of June. [ 5 ] Although the total cost for the rent and other expenses was approximately 1 400$ per month, Mrs.

P. explained that the accused only paid 400$ a month, as he did not have a lot of money. She stated that she was fine with this, even if it was less than half of the total costs. [ 6 ] On May 10, 2012, Mrs. P. phoned the accused to get 200,00$ for the bills. She asked to meet him downtown, near his workplace. Her plan was to go directly to the bank after getting the money from the accused. As she arrived downtown, she learned that the accused was back at the apartment. She became upset as the bank was about to close. They had an argument over the phone.

She told him that she would come back to her place to get the money. [ 7 ] The accused was in the shower when she walked in. She felt insulted when she noticed that he had bought new clothes and shoes, but was still paying less than his share for the apartment. This is when she decided that the accused had to definitely leave her apartment. [ 8 ] As the accused walked out of the bathroom, he threw the 200,00$ at Mrs. P., who was sitting on the couch. The money hit her on the chest. She put it in her bra. Mrs. P. told the accused he had to leave. He got angry and started calling her names.

He told her " go fuck yourself ", " fuck off " and " leave me alone ". Mrs. P. told him to lower his voice, as she did not want the neighbors to hear. She wanted to settle this in an adult manner. The accused kept yelling and started to put his personal belongings in bags. At one point, he asked for his money back. Mrs. P. refused as the money was for bills that were already processed.

[ 9 ] The accused then attempted to take the television. Mrs. P. refused and put her arm to move him away from it. He next tried to take her Videotron boxes. She refused again. He finally tried to take her laptop, which was on the futon. Mrs. P. tried to stop him by " grabbing him and pulling him off ". She grabbed him around the torso. The laptop fell on the floor. This is when the accused grabbed her by her throat and right arm. He pushed her against the wall. He started choking her and smacking the back of her head against the wall. Mrs. P. screamed form help. She blacked-out at some point.

According to her, the incident lasted from two to five minutes. [ 10 ] Mrs. P. eventually pushed him off. Moments later, her brother called. She put him on the speakerphone. The accused was still yelling at her. Mrs. P.'s brother told the accused to get out of the apartment. The accused left and the police arrived shortly after. Since the police wasn't called by Mrs. P., one can infer that it was called by neighbors who heard the dispute. [ 11 ] At first, Mrs. P. assumed she had a mild concussion and did not seek treatment. She did not think that the pain would eventually be that intense.

As her health was getting progressively worst, she went to the emergency on May 17, 2012, which was seven days after the events. Before getting to the emergency, she was vomiting and could hardly get out of bed. She had headaches. The medical report filed into evidence by the Crown states that Mrs. P. complained of dizziness, nausea, headache and head injury, which are all symptoms associated with a concussion. The doctor's notes indicate a loss of consciousness. Mrs. P. went back to the hospital on June 4 and 5. She complained of similar symptoms, as well as concentration problems.

She was given anti-inflammatory pills, painkillers and sleep pills. [ 12 ] In cross-examination, Mrs. P. admitted that she smoke marihuana to help for the pain. She explained that the accused pushed her on the wall for two minutes before she lost consciousness and had a blackout. She stated that she did not fall when that happened. She admitted that when she used to live in Saskatchewan, she was convicted for an attempt to defraud a bank using false identification documents. She was sentenced to a conditional sentence of imprisonment of 18 months.

THE DEFENSE [ 13 ] The accused testified before the Court for his defense. He confirmed the testimony of the complainant concerning their relationship and the break up. He confirmed the agreement to share the bills until the end of June, but claimed that he paid more than his share. [ 14 ] With regards to the events of May 10, 2012, he admitted that there was a dispute at the apartment when he walked out of the bathroom. According to him, Mrs. P. asked him 220,00$ to pay the bills. He stated that he would have been glad to pay her, but wanted to see the bills before giving her the money.

Since she wouldn't show him the bills, he told her he wasn't paying. [ 15 ] Mrs. P. told him that he had to leave the apartment. According to him, Mrs. P. was yelling at him as he was packing his stuff. As he was ready to leave, the accused asked for his money back; Mrs. P. refused to return it. He stated that he went for the laptop so he could get his money back. Before he even touched the laptop, Mrs. P. pulled his hair from the back. He turned around and " pushed her off of him ". She started to yell, " help, help, help ". The accused took his stuff and left.

The police reached him 15 minutes later on his phone. He was informed that he was being charged. [ 16 ] When asked more details about the push, the accused stated that he didn't know if Mrs. P. hit the wall; he just pushed her off him. He stated that it took " maximum 10 minutes " between the time he asked for his money back and the time he left the apartment. He admitted that there was a dispute over the phone earlier that day between them. He claimed that he did not try to take the Videotron boxes nor the television. He has no criminal record. [ 17 ] In cross-examination, the accused confirmed that Mrs.

P.'s brother called when he was ready to go. He could not remember how he gave the money (220,00$) to Mrs. P. on May 10; he mentioned he might have put it on the table, or thrown it at her. He did not fuss nor yelled when Mrs. P. asked him to leave. He just kindly asked for his money back. When Mrs. P. refused to return it, he decided to " go for the laptop ". She pulled his hair on the back of his head. He turned around and pushed her off with his forearm. He shoved her off him. [ 18 ] In cross-examination, he clearly admitted that she was not pulling his hair anymore when he pushed her.

He stated that she did not fall, but started to yell, " help, help ". She yelled help five times within a span of 30 seconds. He picked up his stuff. As she stopped yelling, he had all his stuff ready to go. He didn't recall pushing her against the wall. He didn't recall if she hit the wall. He claimed that he did not grab her by the throat nor bang her head against the wall. He didn't recall if she banged her head during the incident.

He did not see her bang her head. [ 19 ] When asked if the complainant was in his sight for the whole incident, he gave a long explanation to the effect that he dipped forward before pushing her off him. When pressed by the Crown to explain the reason why he did not see her bang her head, he claimed that she was not in his sight of view in the " little time period " that immediately followed the push. ISSUE [ 20 ] Does the evidence show beyond a reasonable doubt that the accused assaulted Mrs. P.?

ANALYSIS The presumption of innocence and issues of credibility [ 21 ] It is well established that every person charged with a criminal offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. The accused does not have to prove that he or she is innocent. The Court may only find an accused guilty if, after considering all the evidence, it is satisfied that the Crown has proven its case beyond a reasonable doubt. If a reasonable doubt as to the guilt of the accused arises from the credibility of the witnesses, the Court must find the accused not guilty. [ 22 ] In R. v.

Vuradin , 2013 SCC 38 , at para. 21 , the Supreme Court states:

The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2 , 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.

However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v. Boucher, 2005 SCC 72, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29. [23] The test for assessing reasonable doubt when credibility is in issue was defined by the Supreme Court in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. First, if the Court believes the evidence of the accused, it must find him or her not guilty. Second, if the Court does not believe the evidence of the accused, but is still left by this evidence with a reasonable doubt, it must findhim or her not guilty.

And third, even if the Court is not left with a reasonable doubt by the evidence of the accused, it must still askitself whether, after considering all the evidence, it is satisfied beyond a reasonable doubt that the accused is guilty. Application to the present case [24] In the case at bar, the accused claimed that he pushed the complainant only to defend himself. After reviewing andconsidering all the evidence, the Court finds that his version of events is neither plausible nor credible or reliable. [25] The accused mentioned that he pushed the complainant away after she grabbed his hair.

However, in cross-examination, heacknowledged that the complainant was not holding his hair anymore when he shoved her away. [26] In addition, in examination, he mentioned that when she pulled his hair, he immediately turned and pushed the complainantaway. However, he stated in cross-examination that he had to duck or dip forward before doing so. [27] Furthermore, even though she was right next to him - a few inches away – the accused claimed that the complainant was notin his sight of view in the second that followed the push. His narrative on this sole point is simply not plausible.

Both the accused andthe complainant were in the living room when the dispute occurred. Pursuant to the accused' testimony, she was close enough to grabhim by the hair; and he was close enough to push her away. In those circumstances, how can he not see, in the immediate moment thatfollowed, whether or not she hit her head? His assertion - that he cannot recall because the complainant was not in his sight of view - issimply unbelievable and not plausible. [28] In

summary, the Court does not believe the accused when he states that he pushed the complainant only to defend himself. Nor is the Court left with a reasonable doubt on that issue. [29] That being said, the Court must still ask itself whether, after considering the evidence as a whole, it is satisfied beyond areasonable doubt that the accused is guilty. On this point, the Court concludes that Mrs. P.'s testimony was clear, fluid and detailed. Hernarrative of the sequence of events was unbroken and precise.

Moreover, it was confirmed in material particulars by other evidence,more specifically the medical report which confirmed the concussion. The Court cannot find any material ambiguity in her evidence. CONCLUSION For all those reasons, the accused is found guilty of assault. (

S) Yvan Poulin __________________________________ YVAN POULIN, J.C.Q. Me Juliette Lucas For the prosecution Me ArchambaultFor the accused Date of hearing: March 20, 2014