R. v. Brincat, 2010 ONCJ 643

Information No. 09-1390 Citation: R. v. Brincat , 2010 ONCJ 643 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MICHAEL BRINCAT ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on November 22, 2010, at ORANGEVILLE, Ontario **********

APPEARANCES : R. Fetterly Counsel for the Crown M. Penny Counsel for Michael Brincat (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment....................................Page 1

Transcript Ordered: December 7, 2010 Transcript Completed: January 4, 2011 Ordering Party Notified: January 5, 2011 F O R M 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Nancy Byers, certify that this document is a true and accurate transcription of the recording of Regina v. Michael Brincat, in the Ontario Court of Justice held at Court House, 10 Louisa Street, Orangeville, Ontario taken from Recording No. 0611-102-444/2010, which has been certified in Form 1. ____________________ ___________________________ (Date) (Signature of authorized persons)

MONDAY, NOVEMBER 22, 2010 Pugsley, J (Orally): R E A S O N S F O R J U D G M E N T Michael Brincat faces two counts of assault against a sometime girlfriend of the defendant. The Crown submits that both counts are made out beyond a reasonable doubt. The defence submits that I should prefer the defendant’s evidence and that, in any event, the Crown cannot get past a R. v. W.D. analysis to a conviction here. The complainant, her daughter, and the arresting officer testified for the Crown. The defendant was the sole defence witness. R. v. W.D. is engaged by the evidence in this case.

Much of the complainant’s evidence revolved around the history of her relationship with the defendant. Even in that area, the complainant and the defendant’s evidence was different. The last count here relates to events said to have taken place on November 16, 2009. The complainant stated in-chief that, at that time, she had resided with the defendant since May of that year. The defendant testified that the complainant and her two younger children only moved in in late August or early September of that year.

On November 16th, 2009, the defendant took the complainant and her children to buy knee pads for her son in Newmarket. The complainant testified in-chief that the defendant was upset at her for some sort of flirting with a man in the store, that she must have tried to draw the attention of that man. In other words, the complainant’s initial in-chief evidence was meant to suggest that the defendant was jealous. The complainant then testified that when they got back home, the complainant started to fix dinner but an argument ensued. The argument started with suggestions of the defendant’s jealousy.

The complainant stated that she remained silent as the defendant spoke of her lack of respect for him. The complainant then testified that the defendant was upset at her failure to pay attention to him and forcibly pulled her by the hair to make her look at him, all the while backing her into a counter. In fact, he pulled her hair so hard that some of her hair came out. Notwithstanding this initial assault, the complainant continued to cook the hamburger. The defendant again grabbed her, pulling up her shirt in the process and throwing her against the counter.

At that point, by her evidence, her daughter, Brianne, came downstairs and told the two adults to stop fighting and then returned upstairs. The complainant testified that the defendant then went outside and she went upstairs to collect herself in the bathroom. The complainant then testified in-chief that the defendant came back in the house and flew up the stairs yelling at Brianne to stay out of their business. The complainant then came out of the bathroom and grabbed the defendant because of him speaking to her daughter in that way. She stated that she grabbed the defendant by his shirt to shut him up.

The complainant testified that the defendant then grabbed at her and they scuffled and fell on the floor, and when she hit the floor, it hurt her everywhere. The defendant then let her go and she went downstairs. Meanwhile, Brianne called 911. The complainant took over the phone and told the dispatcher that she was okay. The defendant was yelling at the complainant to get out of his house. When the police arrived, the defendant tried to persuade the complainant to work out their problems, but she refused.

While being questioned by the police, the complainant mentioned an earlier assault from around November 7th of 2009. That assault had taken place in the detached garage of the home. The defendant and the complainant were in the garage and argued. The defendant put the complainant’s family down and so the complainant responded in kind. The defendant threw a coffee at her that they had just bought at Tim Hortons about 20 minutes before. The cup did not hit her but she was splashed with the lukewarm coffee. The complainant then responded by sweeping her own coffee off the table at the defendant.

The coffee hit the defendant’s classic van and the defendant then lost it, grabbed her and they scuffled and fell on the floor. The defendant tried to drag her out of the garage forcibly and she fought back. The defendant then hit her head off the concrete floor repeatedly. In the meantime, she had scratched the defendant’s forehead. When the defendant got her out of the garage, he let her go and she went into the house to the bathroom to collect her thoughts. The complainant testified that she was injured by these assaults and takes Tylenol for the pain that still persisted a year later. A somewhat

different picture of events was revealed during cross-examination. First, the complainant acknowledged that since the charges, she has taken over the lease to the residence from the defendant. The defendant had lived at the property from some four to five years before the events of November 2009. As subsequent events disclosed, the defendant, in fact, never abandoned the lease, according to a ruling of the Landlord and Tenant Board from earlier this year.

The complainant testified that she lived off and on at the defendant’s place over a term of years and that the defendant held his legal status as the tenant over her head. Since the charges, she’s remained in the residence with her children. In cross-examination, it became clear that the complainant had moved about, staying at many places and with many persons from time to time during the time that she knew the defendant. When she lived at the defendant’s place, the defendant would never even let her have a key to the house to maintain power over her.

A letter purporting to acknowledge her transient status at the defendant’s residence was shown to her by the defence counsel, but never put into evidence as a numbered exhibit. The complainant stated that the signature on the purported exhibit was forged, although she was less certain about whether she had seen the agreement before. At the Zeller’s store, the defendant and the complainant’s children were playing around, and when they left a man stood by their car. The complainant believed he was a loss prevention officer from the store, but he did nothing else and they left.

As they drove home, she testified that the defendant was talking to her but that she didn’t reply. She said that they never spoke much and that she only came back to live with the defendant because he said he would change, but he did not. In the kitchen as she was cooking that evening, the complainant denied that the defendant had raised the topic of her leaving the home, although it had been mentioned the day before. In September, the complainant had wanted an older child, Kayla, to also move in with them but the defendant had made it clear that he did not want Kayla to live with them again.

The defendant never gave a clear yes or no, and when the complainant’s mother and Kayla came to Brianne’s birthday party in September, Kayla came ready to stay at the house because the complainant had told her to bring all of her belongings to move in. The defendant had not okayed this move. The complainant was asked if, at that time, she was a guest in the defendant’s house and she replied that she was his fiancé. Earlier, she told the defendant she had pawned the engagement ring, but that had been a lie. The complainant denied that she was angry with the defendant when he refused to let Kayla stay.

Then she said she was hurt and admitted that hurt could be anger too. She denied being violent because she does not get violent unless violence comes to her. She had only attacked the defendant once. She described never throwing things around, only moving them. She did not tip over or throw objects, at least not intentionally, and described herself as basically an easy-going person. In the kitchen on November 16, 2009, counsel suggested to the complainant that the defendant had told her right then that she had to move out. Her reply to that was that she did not recall.

On the 15th of November, the defendant had not told her that he wanted her out, but rather that they would discuss it. She stayed because it was, after all, her home. When asked if she was a guest, the complainant stated, “With all my belongings?” But then accepted that, from time to time, she had left in the past and that it was not a stable home for her and her children. In fact, before she moved in with the defendant the last time, she and the children had been living at a hotel. The complainant testified that she did not plan, at that point, but lived rather day by day.

She only moved in with the defendant because he persistently asked her to do so. She also felt that the defendant only wanted her, not her children. The complainant denied that the parties had had a simmering dispute since the defendant had refused to let Kayla move in, but admitted that she could not understand why the defendant had refused that permission and made that clear to the defendant, but was hurt, not angry. On November 16, 2009, she had been the subject of violence by the defendant in the kitchen, and so when she heard the defendant berate Brianne, she admitted that she reacted with violence.

As she testified, how was she supposed to act, be calm and reasonable? With regard to the events in the kitchen, the complainant then was reminded and agreed that after the defendant pulled her hair, as she stated, she flipped the kitchen table over at him. She then recalled that the defendant threw a milk carton at her and pulled her hair in response. The first hair pull was unprovoked as she was calmly cooking and ignoring the defendant, as she always did.

She then elaborated that she was fighting back at the defendant, and that it all started when the defendant and her children were acting like animals, running around the aisles in the store earlier that evening, although she initially stated that that did not annoy her. She then admitted that it did annoy her but she never told the defendant this because they never said much to each other anyways. The complainant was asked about where she grabbed the defendant when she came out of the bathroom on November 16, 2009. She had

initially said in-chief that she grabbed the defendant by the shirt. She initially denied grabbing the defendant by the throat, in cross- examination, saying rather that she grabbed him by the shoulder. After the video statement was played, the complainant recalled that, yes, indeed, she had grabbed the defendant outside the bathroom by his throat, as she had admitted to the police. She also agreed that on October 24th, 2009, she had also attacked the defendant and grabbed him by the throat, stating that she blacked out at that time.

Speaking of the November 7, 2009 garage assault, the complainant stated that she swept her coffee off the table at the defendant after he had thrown a coffee at her but missed. She denied being upset, and the defendant then just grabbed her without warning off the chair. She then testified that they got into an altercation, during which the defendant repeatedly slammed her head off the concrete floor but that she suffered no injury from this assault. The complainant stated that she had been in generally good health before November 16, 2009, although in the past she had been a crack addict, but had recovered.

She only smoked marijuana with the defendant. Her daughter, Kayla’s departure from the home was related to Kayla’s alcohol abuse. In re-examination, the complainant elaborated on the fact that the Exhibit A tendered did not contain her signature and that she had scratched the defendant’s face on November 7th, 2009. The complainant’s daughter, Brianne, testified. On November 16, 2009, she called the police to come to the home. They’d been to Zeller’s earlier in the evening and, when they got home, the parties argued back and forth. She was upstairs.

She heard the arguing and yelling back and forth, and then her mom yelled, “Don’t pull my hair.” She described both the complainant and the defendant as yelling at each other. She came down and her mother was against the counter with the defendant being a few feet in front of her. Her mom then came upstairs to use to bathroom, and the defendant came up a few minutes later and told Brianne not to get involved in the disagreement between the defendant and the complainant. She then saw her mom come out of the bathroom and jump at the defendant, put him up against the wall and he pushed the complainant back down.

She went into her room and called the police. While she was on the phone, her mother came and took the phone from her, and the complainant told the defendant, “You’ll figure out what’s going on.” The police came, and at first the defendant would not let them in the house. In cross-examination, the witness testified that she lives in the same home now with her mother and brother, and that Kayla has now moved in with them. Kayla could not come back before because the defendant did not get along with Kayla and would not let her come back. She and her brother got along well with the defendant.

She described many other places where she and her mother had lived in the past. She had heard the parties argue before but never saw the defendant ever hit the complainant. She had seen the complainant attack the defendant. She saw nothing that the defendant did back to that attack but call the police. When she had come down earlier after hearing her mom yelling about her hair, she yelled at the complainant and the defendant to stop arguing. When the defendant went upstairs later, he walked up normally. In the past when they had left the defendant’s house, they had often left it instantly.

She never saw the defendant during the three years she lived with her aunt in Barrie. Constable Kevin Bucknor of the OPP was the final Crown witness. After some delay, he and his fellow officer were admitted to the house on November 16, 2009. Constable Bucknor spoke to the complainant and then arrested the defendant. He observed a scratch on the defendant’s forehead, but could not estimate whether it was fresh. The defendant chose not to give a statement after speaking to duty counsel. The complainant gave a video statement and admitted that she had scratched the defendant during the assault in the garage.

The complainant also admitted to grabbing the defendant around the neck on two occasions, such that the officer was compelled to caution her about speaking to duty counsel before they continued her statement. The defendant did not give a statement complaining about any assault on him, and so the officer did not pursue this further. The defendant testified that he met the complainant while they were children, but later more formally in 2001. The complainant was having problems at the time and turned to him for help. In about 2004, the complainant moved into his residence on Highway 10 in Brampton.

She’d been evicted and had no place to live with her children at the time. She stayed for a few months, at most, off and on, leaving when she was having a lot of problems with him. About one year later, the complainant returned. Again, she and her children were homeless. Soon they left again. He described her car as always being packed ready to go.

The defendant had lived off and on since 2001 at a residence on Highway 9, and then to a place on Mayfield Road. Again, the complainant and her children joined him and his father there for a brief period of time. In 2005, he moved to the Highway 9 address where he was arrested. He proposed to the complainant, as he said, to provide them some stability, but their relationship was still very rocky and the complainant bowed out of counseling. Around 2006 or 2007, the complainant left and told him that she had pawned his engagement ring.

Near the start of school in 2009, the complainant was again virtually homeless, living in a hotel with her children, and he allowed them to move back on the basis that it would be for a few weeks. They were not in a romantic relationship at that time and slept separately. At the store in Newmarket, the defendant noticed a loss prevention officer watching them and following them out to their car. He was worried that the children had maybe taken something they should not have from the store. The complainant was angry at this suggestion or implication that her children were thieves.

At home in the kitchen, the complainant was still upset, slamming doors. He raised the subject of her leaving. The complainant was angry and, at one point, Brianne came downstairs. The defendant was well away from the complainant because she has been known to throw things when angry. He described the complainant as being very angry and yelling at Brianne, and the defendant told Brianne to go back upstairs, and she did.

The defendant told the complainant that her children listened to him more than to her, and she became angry and flipped over the kitchen table, breaking dishes that he had set on the table, and then left. The defendant re-set the table, cleaned up the glass and went upstairs to check on Brianne, and described being ambushed by the complainant, who grabbed him by the throat, whereupon a scuffle took place in the upstairs hall. The police came and he had to secure his dog before letting them in. He was then charged and taken out of the house.

On the previous alleged assault in the garage, the complainant had been speaking to her mother on the phone and came into the garage in a very bad mood, as she always did when she spoke to her mother. She became abusive in talking to him, and then threw a coffee at him, hitting his van. He left the garage to get the van keys to take it out of the garage and wash it. No assault took place at that time. In the kitchen on the 16th, he was careful to stay well away from the complainant and did not assault her. In October of 2009, the complainant and her family wanted Kayla to move into the home.

He was not in favour of this because of past conflict caused by Kayla. But on Brianne’s birthday, the complainant and her family came, with Kayla and all of Kayla’s belongings, as if the matter had been settled, and they were angry and his - the complainant’s mother threatening when he refused to let Kayla stay. The defendant went to the Landlord and Tenant Board after his arrest and the Board confirmed that he, not the complainant, was the proper tenant of the property.

In cross-examination, the defendant accepted that he got along well with the complainant’s younger children, but was not in a father role with them, in his view. Up until 2006, when the complainant broke their engagement, he was prepared to step up and give the children and the complainant stability, but all that ended when the complainant told him that they had split and she had pawned his ring. The defendant stated that the telephone call about the complainant’s daughter, which had precipitated an unprovoked assault on him by the complainant, took place in October, not around November of 2009.

The coffee thrown in the garage on the November 7, 2009 was made at home, not bought from the Tim Hortons because they’re not close to a Tim’s restaurant. The mark on his forehead was from the complainant’s attack on him in October. He described continuing to press the complainant about her plans to move out to her own place, but she always avoided the issue. He only delayed the entry of the police into his home to secure his dog, who might have attacked them, not because he feared any arrest. As counsel both submitted, the test here in an application of the leading Supreme Court of Canada case of R. v. W.D.

Briefly summarized, when a defendant testifies, I must assess his or her evidenced in a cautious way. Because of the duty on the Crown to prove its case beyond a reasonable doubt, the competing evidence of the complainant and the defendant is not merely a matter of who between them I believe. If I believe the defendant, I must acquit him. If I do not believe the defendant but his evidence leaves me in a reasonable doubt as to his guilt, I must still acquit him.

Finally, the third leg of W.D. requires me to determine whether the Crown has proven each necessary element of the offence charged, even if I reject the defendant’s evidence. The credibility of the complainant suffered greatly in cross-examination in this case. The evidence she gave in-chief was a calm story about what might be referred to as an event, sadly familiar to this court, of spousal abuse. The defendant was jealous of a man she had looked at in the store. He kept at her all the way home in the car, even though she ignored him, still continuing to do so in the kitchen.

There, angered at her lack of response, he pulled her hair to turn her head around, pulling so hard that some hair came out in his hand. She had done nothing at all. He then left and she went upstairs to the bathroom to compose herself. The defendant then came back in the house, as she describes it, flew up the stairs and started verbally attacking her daughter. And the complainant opened the bathroom door, grabbed the defendant by his shirt to stop his verbal attack on Brianne. He fought back and took her to the floor and held her there. Brianne then called the police, who came and arrested the defendant.

While she was giving her statement, she reported an earlier

extremely serious assault from November 7, 2009. Then she said she and the defendant had exchanged comments about their respective families, and the defendant threw a coffee at her. She responded by sending her coffee at him, and he lost it, attacking her, dragging her forcibly out of the garage and banging her head repeatedly on the concrete floor before walking away.

With respect to both alleged incidents, the complainant told a more complete story in cross-examination, including her role in the fight in the kitchen, forgotten in-chief, and after denying it at first, admitting to grabbing the defendant by the throat in the upstairs hallway. Further, the complainant admitted that she had volunteered to the police that she had earlier done the same thing to the defendant in late October when he did not move fast enough in a crisis when her daughter was in hospital. As she said, she blacked out at that time.

The Crown submits that the admittedly violent attack in the upstairs hallway was a consent fight, totally separate from the events in the kitchen just a few minutes earlier when the defendant had pulled the complainant’s hair, a complaint that Brianne had heard. The problem is that the complainant’s credibility cannot be compartmentalized so nicely. The complainant’s in-chief evidence places her as a calm person, attacked without warning by the defendant.

In fact, it is clear that the complainant and the defendant each had a habit of giving as well as they got during these and past altercations, to the point where, un-asked, the complainant admitted her earlier violent attack on the defendant to the police. In other words, the complainant attempted to gild the lily in her evidence, to make her role sympathetic and to cast the defendant as the violent, unprovoked attacker. This seriously impairs her overall credibility, to the point where a doubt is created by the defendant’s denials.

As a couple of examples, in the kitchen, the complainant is silent before the defendant’s badgering about being disrespected. The intent of the evidence is to cast the defendant as jealous of this look apparently given by the complainant to a stranger at the store. In fact, the stranger was thought by everyone to be a loss prevention officer. The comment by the defendant about the children maybe taking something was just the type of comment to get this complainant angry, as later events showed. The complainant was certainly not silent in the kitchen.

Brianne came down because of the yelling back and forth between the two parties and found the defendant located several feet away from the complainant. The complainant forgot about flipping over the kitchen table at the defendant until reminded in cross-examination, I conclude, because that did not fit the sought-after image of an unprovoked sudden attack by the defendant. Further, from the bathroom, the complainant testified that the defendant flew up the stairs and violently yelled at Brianne.

Brianne, the subject of this violent outburst, testified that the defendant walked up the stairs normally and told her she should stay out from between the defendant and the complainant when they argued. In passing, very sound advice. The complainant said that the defendant was always after her to move in with him when she lived in Barrie, but Brianne never saw the defendant for that three-year period. The complainant said the defendant only wanted her, not her children, but this defies the fact of the relationship acknowledged between the defendant and those children.

Finally, the complainant had a reason to gild the lily, in her evidence, although the criminal law process is not meant to have such an effect. Through that process, she obtained the defendant’s home, correcting the situation that she had complained about in her evidence in-chief, that the defendant was also holding her status as a guest in his house over her head. In the end, I accept that the defendant’s evidence could be true.

Under the first leg of W.D., I’m not sure I believe him, but under the second leg, I find that his evidence clearly creates a reasonable doubt, and accordingly I must acquit the defendant on both counts, and I do so. Thanks very much, counsel, for your very focused submissions.