r v. DAVID-WALTER HARVEY, 2016 QCCQ 8713

R. c. Harvey 2016 QCCQ 8713 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF IBERVILLE LOCALITY OF SAINT-JEAN-SUR-RICHELIEU Criminal and Penal Division No. 755-01-037749-147 DATE: March 29, 2016 PRESENT: THE HONOURABLE MICHEL BÉDARD J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. DAVID-WALTER HARVEY Accused VERDICT [ 1 ] On March 17, 2014, the accused was charged with the following: On or about January 14, 2014, in Saint-Jean-sur-Richelieu, district of Iberville, did commit an assault on Marie-Andrée Simpson, committing thereby the offence punishable on

summary conviction provided by

section 266b) of the Criminal Code . Prosecution evidence Marie-Andrée Simpson, complainant [ 2 ] The complainant and the accused were de facto spouses from 2007 to the end of 2013. [ 3 ] On January 13, 2014, the complainant, who was working as a flight attendant

for Air Canada, was surprised to see the accused coming to meet her without notice at Toronto Pearson International Airport upon her return from an international flight from London.

JB 4131 [ 4 ] Although he seemed anxious, she stated that he held her very tightly in his arms, repeating that he wished to see his children as soon as possible. [ 5 ] Having convinced him to go back to his home in Toronto, she took a flight to Montréal to return to her mother’s residence where she had been living with her children since the couple ceased living together. (6] On January 14, 2014, around 2:00 p.m., the accused arrived unexpectedly at the complainant’s residence in Saint-Jean-sur- Richelieu, unshaven and wearing the same clothes as the previous day. [7] She gave him a razor and succeeded in convincing him to return to the hotel to freshen up and change his clothes. [8] In the afternoon, he called her on the telephone and sent her several text messages asking her to join him at the hotel.

She declined, despite his threats, explaining that she was taking care of the children and was tired after her recent international flight. [9] That evening, she went to bed at 7:30 p.m. at the same time as the children.

Her mother woke her around 10:00 p.m. to tell her that the accused was at the wheel of a car parked in the driveway in front of the house. [10] In order to avoid his entering the house and waking the children, the complainant decided to go outside in her pajamas to speak to him in the car. [11] As soon as she sat down in the passenger seat of the car, the accused immediately began reprimanding her because she did not join him at the hotel that afternoon. [12] She replied that she wanted him to stop coming to see her unannounced, and to stop calling her and sending text messages. [13] She stated that, while they discussed his request to visit the children, the tone of his voice rose very quickly, until, as usual, he became angry and shouted because they could not agree, while she vainly attempted to calm him down. [14] Repeatedly shouting "Get out !

Get out !", he gripped her upper left arm with his right hand and shook her hard while pushing her against the passenger door. [15] She did not want to be treated in such a manner. She stated that she became scared and was very troubled to see the father of her children acting as he did. [16] On the complainant’s insistence, he finally agreed to let go of her, so that she could open the door to start getting out of the vehicle. [17] He continued to shout "Get out !

Get out !" and as soon as the car door opened, he pushed her so hard by the shoulder toward the open door that she had the impression her feet flew behind her. [18] Before she could turn around, he raced the vehicle backwards, brushing against her with the open passenger door. After he braked brusquely almost immediately, the door shut itself and he sped backwards into the street, where he sped up and raced off.

[19] She estimated that their meeting in the car lasted about 15 minutes. [20] In cross-examination, she acknowledged that it was her decision to join the accused in the vehicle because she did not want him to enter the house and wake the children, and also, because she could not stay outdoors in her pajamas in winter. [21] Even if he had previously been physically violent toward her on one occasion, she acknowledged that she was not afraid for her safety when she got into the car, adding that she was used to hearing him shout when he was dissatisfied. [22] She confirmed to the counsel for the accused that she attempted to open the door as soon as the situation began to degenerate, because she became afraid of him. [23] She explained that she was unable to open her door until the accused let go of her left arm and stopped shaking her against the door. [24] In cross-examination, she confirmed that she had no markings from his having grabbed her by the arm or other signs of injury following the accused’s actions. [25] She was categorical when stating that she attempted in vain to calm him down and that there was nothing more she could do, as he obviously had taken leave of his senses, and was so angry and out of control that he was crying while shouting “Get out !

Get out !”. [26] She indicated to his attorney that she had never invited him to come to her mother’s house or to the Toronto airport, and in addition, he appeared unannounced on both occasions. [27] In response to a question from the counsel for the accused, she specified that he often threatened to set fire to the house when she and her children were in it, whereas in the car, he threatened to commit suicide on the evening of January 14, 2014, when he realized that he would not have access to the children during his stay. [28] When shown the registration certificate and the contract of sale in the accused’s name for the 2006 BMW 320xi that he was driving in the evening of January 14, the complainant indicated that the car was purchased by their corporation, Spraga General Contracting Services Inc., of which they each hold 50% of the shares.

Defence evidence David Walter Harvey, accused [29] Without contradicting the complainant’s evidence with respect to the payment of the purchase price, the accused said that he has sole ownership of the BMW vehicle that he was driving on the evening of January 14, 2014. [30] Acknowledging that he had previously allowed her to use the BMW during the summer season, he specified that for the benefit of the children of whom she had custody, the applicant chose to use the 2011 Toyota Tundra 4X4 that belongs to the company, because it is roomier and better designed for winter. [31] The accused had not seen his children for about 2 months and wished to settle the access rights.

He acknowledged that he went to meet the complainant when she arrived from an international flight at the Toronto airport on January 13, 2014. [32] Since she did not want him to accompany her on her flight to Montréal, he decided to drive to Saint-Jean-sur-Richelieu by car.

[33] Estimating the time required to travel 500 kilometres from Toronto at about 5 hours and 30 minutes, he estimated that he arrived in Saint-Jean-sur-Richelieu at the end of the morning or early afternoon on January 14, 2014. [34] He stated that he went directly to the hotel to shower and change clothes and denied going to the complainant’s house upon his arrival from Toronto. [35] He added that he had chosen an establishment with an indoor pool near the children’s residence because he wanted to have them benefit from it during his stay. [36] He acknowledged having talked on the telephone with the complainant and exchanged several text messages with her in the course of the afternoon of January 14, 2014. [37] He admitted that he had not announced his arrival on the evening of January 14.

Knowing that the children would be in bed, the accused stated that he wanted to negotiate his access rights with their mother. [38] He therefore parked in the driveway in front of the house and when he saw the complainant come out in her pajamas, he unlocked the doors of the vehicle to allow her to sit in the passenger seat, whereas he was behind the steering wheel. [39] Affirming that he was sad at having been apart from his children during the previous months, the accused admitted that he was annoyed and disappointed with the situation, while taking care to specify that at no time did he become angry on the evening of January 14, 2014. [40] When he realized that the discussion with the mother would not allow him to see his children, and that she was again deferring the discussion on his access rights, he told her that he would refer to his lawyer and asked her to get out of the vehicle. [41] Since she was not getting out, he admitted that he had to raise the tone of his voice, as he told her at least five times to get out of the vehicle. [42] Then, he leaned over to the passenger door and, reaching over her, opened the door while continuing to ask her to get out. [43] Since she was still not getting out, he put both his hands on the complainant’s left hip while lifting her up slightly so that she would understand that she was to get out of the vehicle, while he continued to tell her loudly several times “Get out !

Get out !”. [44] As soon as she was out of the vehicle, he admitted having quickly reversed the car and braked suddenly, so that the passenger door shut itself immediately, after which he continued to back out quickly and braked in the street before racing away. [45] A few minutes later, as he was driving very fast, his vehicle skidded and came to a stop in a ditch near a field. [46] While he was waiting for the tow truck in the patrol car, he called a friend who is a lawyer in Toronto and whom he had formerly consulted, to ask him to institute proceedings in order to gain access to his children as soon as possible. [47] The accused, who declared that he had no criminal record, formally denied having grabbed the complainant by her left arm, shaken her against the car door or even having pushed her when she started to get out.

He repeated that he only slightly lifted her left hip with both hands to indicate that he wanted her to get out of the vehicle.

[48] In cross-examination, the accused repeated that he was very sad and disappointed to have failed to settle his access rights on the evening of January 14, 2014, again saying that he never became angry, not even when manoeuvring to back out of the driveway or when he raced away and drove at high speed before losing control of his vehicle, which came to a stop in a ditch. [49] Questioned on his state of mind when the complainant got out of his car, he persisted in declaring that he was very annoyed, very frustrated, but never became angry or mad. [50] He added that he had been surprised when the passenger door shut itself when he brusquely braked while backing up, especially since it was a manoeuvre that he had never performed before. [51] He admitted having left the premises very quickly, specifying that he had not wanted to cry in front of the complainant. [52] Challenged by the counsel for the prosecution, he maintained that the open door never hit or brushed against the complainant while he backed up quickly, adding that he had not seen her slip to the ground when she got out of the vehicle.

POSITION OF THE PARTIES [53] Arguing that he does not believe the accused’s version, the prosecution declared having proved all the necessary elements of the assault charge brought against the accused. [54] For his part, the counsel for the accused pointed out that the complainant, who bore no signs of injury, did not suffer an assault by the accused, adding that it was well-founded for the accused to act as he had by virtue of the defence of property in

section 35 of the Criminal Code . APPLICABLE LAW [55] Section 265(1) (

a) of the Criminal Code defines assault as follows: . . .

A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. . . . [56] Absence of the victim's consent is a material element of the offence, whereas the application of force must be intentional, making assault a "general intent offence". [57] The law does not specify a particular level of force to be used, with the result that even a touch of the hand may be considered an assault depending on the circumstances. [58] In appreciating the contradictory versions at hand, the Court must apply the rule established by the Supreme Court in R. v.

W. (D.) , [1] requiring that the accused be acquitted:

a) if the Court believes his version;

b) if his version raises a reasonable doubt, even if it is not believed;

c) if the prosecution has not proved beyond a reasonable doubt all the necessary elements of the offence charged. [59] With respect to defence of property, before the 2013 amendments, it consisted of the following four elements, as stated by the Supreme Court in R. v. Gunning : [2]

(1) The accused must have been in possession of the property;

(2) His possession must have been peaceable;

(3) The complainant must be a trespasser;

(4) The force used to eject the trespasser must be reasonable. [60] Regarding the fourth element, the Supreme Court has established that the examination of the force used by the owner or possessor of the property implies appreciating what is “reasonable in all the circumstances” ( Lieutenant​Colonel G. Szczerbaniwicz v.

Her Majesty The Queen [3] [2010] 1 S.C.R., 471, at paras. 33 and 34 ). [61] In the above case, the Supreme Court specified that the appreciation of the “reasonableness” of the force must be made according to a test that is both subjective and objective. [62] On the one hand, the accused must believe that the force he used was reasonable “under the circumstances”, and on the other hand, his subjective belief must be appreciated objectively according to the “reasonable person standard”. [63] When evaluating all the circumstances surrounding the use of reasonable force on a trespasser, it is possible to take into account the entire context in which the parties involved found themselves, including and without limitation, their age, sex, size and strength. [64] Moreover, since the coming into force of the new

section 35 of the Criminal Code , in addition to the abovementioned four elements, the Court of Appeal of Québec very recently recalled, in Molley c.

R. , [4] that the following rule must be taken into account: the owner or possessor of property, before considering an individual a trespasser and having the right to remove the person, must first inform the trespasser that his presence is no longer desired, must order him to leave and finally, must give him the necessary time to do so. [65] When the accused invokes the defence of property, the onus is on the prosecution to prove beyond a reasonable doubt that it does not apply. [66] The accused does not have the burden of persuasion in respect of that defence, as any reasonable doubt concerning one or another of the abovementioned four elements must play in favour of the accused, provided that he had ordered the individual to leave and had given him the necessary time to do so.

ANALYSIS AND DECISION [67] The

summary of the context hereafter is uncontested, as is the case for several aspects of the facts of the incident. [68] In this case, the couple in question had been separated for a certain time and the father had not exercised access rights to his

children for about two months. [69] Having been asked to postpone the discussion until later when he went to meeet the mother at the Toronto airport on January 13, 2014, the accused travelled for 5 hours and 30 minutes to cover 500 kilometres by car from his residence in Toronto to Saint-Jean-sur- Richelieu in order to negotiate and obtain access to his children. [70] On January 14, 2014, upon his arrival in Saint-Jean-sur-Richelieu, the father made a reservation for a room in a hotel with an indoor pool with a view to having his children enjoy it during his stay in the region. [71] As he had failed to reach an agreement with the mother despite the exchange of several telephone calls and text messages during the afternoon of his arrival, the father decided, that same evening and without notice, to go meet the mother at the house where she was living, with the intent to settle the matter. [72] Following a discussion of about 15 minutes in his vehicle, when he realized that he would not reach an agreement with the mother, the accused informed her that he would have no choice but to have consult his lawyer, and he asked her to get out of the car. [73] As he felt that she was not getting out as quickly as he wished, he raised the tone of his voice when he repeated at least five times "Get out !

Get out ! ". [74] After she got out and before the door was shut, he backed up the vehicle very quickly over a short distance, applied the brakes brusquely, and the passenger door of the vehicle immediately shut itself. [75] Then, he continued to back up quickly into the street, where he accelerated and raced away, driving at high speed until, a few minutes later, he lost control of the vehicle, which ended up in a ditch. Contradictory versions [76] The contradictions between the complainant’s version and that of the accused bear essentially on the following points:

a) On the afternoon that he arrived in Saint-Jean-sur-Richelieu, the accused denied going to the house where the mother and his children lived; whereas the complainant stated that he arrived unannounced, unshaven and wearing the same clothes as the previous day at the Toronto airport;

b) The mother stated that, when the accused realized that he could not get her to agree on the terms and conditions of his access to the children, he became so angry and out of control in the car, that despite her attempts to reason with him, it was impossible to calm him down;

c) The accused formally denied and persisted in repeating in cross-examination that he never became angry, specifying instead that he was very disappointed and sad about the situation;

d) On the evening of January 14, 2014, as she was sitting beside him in the car, the accused denied having gripped her by the left arm and shaken her against the car door, as she had said in her testimony;

e) He added that he leaned over to the right, reaching over the complainant sitting beside him in the car, to open the passenger door while telling her repeatedly: "Get out ! Get out ! ", to make her understand that he wanted her to get out of the car; whereas, she declared having opened the door herself as soon as he let go of her left arm and stopped shaking her;

f) The accused stated that he placed both hands on the side of the complainant’s left hip when she was sitting beside him in the car and slightly lifted her to make her understand that he wanted her to get out of the car, while he continued to repeat loudly: “Get out ! Get out !”; whereas she declared that he pushed her hard outward as she was preparing to get out of the vehicle;

g) She stated that he had cried and threatened to commit suicide when he shouted at her to get out of the car; whereas, without denying that he threatened to commit suicide and raised his voice, he justified having left the premises so quickly because he did not want her to see him crying. [77] To give full effect to the presumption of innocence to which the accused is entitled, the Court will first weigh his version to determine whether it is believed, or without being believed, whether it leaves any doubt in the Court’s mind when the version is evaluated globally in the context of the whole of the evidence. [78] Considering the context in which the parties found themselves, it is understandable that a father, deprived of access to his children for two months and despite several recent unsuccessful attempts, could have been sad and disappointed that he had not had access to his children for two months. [79] However, when considering that the mother refused a discussion with the father, who came to meet her unnanounced at the Toronto airport, and that the father travelled 500 kilometres by car to see his children, the Court seriously questions the coherence of the accused’s testimony when he stated that he did not go to the mother’s residence on the afternoon of his arrival in Saint-Jean-sur- Richelieu, particularly after having made a reservation at a hotel with a pool that he hoped his children could enjoy. [80] If the accused was feeling only sad and disappointed and never became angry on the evening of January 14, as he repeated many times at the hearing and particularly during cross-examination, the Court notes the weakness of his testimony when he acknowledged and admitted having backed up quickly immediately after the complainant got out of the vehicle, even before the door was shut, after having raised the tone of his voice while repeating at least five times the words “Get out !

Get out !” and pushing her left hip to make her get out immediately. [81] After driving his car in reverse very quickly as soon as the complainant got out, while her door was not yet shut, the accused declared that he braked brusquely after backing up only a few feet. [82] In that regard, the Court severely questions the accused’s statement that he was surprised to see the door shutting itself following the manoeuvre he purportedly never effected before, whereas it is not clear why he would brake so suddenly in backing up quickly, if not to close the door that had remained open. [83] The accused's explanation that he raced away because he did not want to cry in front of the complainant becomes highly questionable when, in the same breath, he admitted having continued to drive at very high speed until his vehicle went into a ditch, particularly since he persisted in saying that he was not at all angry, whereas his high-speed driving after leaving the premises no longer supports his initial excuse. [84] The accused’s insistence in stating that he never became angry on the evening of January 14, 2014 is unlikely and incompatible with the overall context that preceded and followed the breakdown of the discussion with the mother who refused to grant him access to his children during his stay in Saint-Jean-sur-Richelieu. [85] Moreover, considering that the accused insisted and maintained in cross-examination that he never became angry after his discussion in his car with the mother, it is surprising that he did not deny having threatened to commit suicide when he realized during his discussion with her in the car that he would not obtain the access rights he wanted. [86] In appreciating the whole of the evidence, it seems inconsistent that the only feelings the accused had before leaving the premises on the evening of January 14, 2014 were sadness and disappointment, as he stated, whereas he formally excluded any anger during cross- examination in a context where he nevertheless admitted the following facts:

a) he was deprived of access to his children for two months, despite recent considerable and unsuccessful attempts to gain access to them as soon as possible;

b) after a discussion in the car that lasted about 15 minutes with the mother, he realized that he would have to institute proceedings to see his children and would not have access to them during his stay in Saint-Jean-sur-Richelieu, whereas he had intended to have them enjoy the pool at his hotel;

c) the behaviour he adopted when shouting “Get out ! Get out !” repeatedly, demanding that the mother get out of the car, and when he opened the door and pushed her left hip with both hands to make her clearly understand that he wanted her to get out immediately;

d) his behaviour as soon as the mother got out of the vehicle, when he backed up very quickly before she even had time to close the passenger door, his manner of racing away, and particularly his high-speed driving after leaving the premises until he lost control of his vehicle and went into the ditch. [87] The entire facts of the case, which the accused acknowledged and did not contest, clearly demonstrate that when he was tired, frustrated and saddened, he behaved as would an angry person having temporarily lost control of his emotions and behaviour. [88] All of the accused’s implausible statements will have a significant impact on the reliability of his entire testimony. [89] For all the reasons given, the Court does not believe the accused’s version, which is absolutely not consistent with the whole of the evidence or with the context in which the parties found themselves, particularly since he persisted in denying the obvious and in trying to convince the Court that, despite all his erratic conduct, he never became angry. [90] Moreover, in considering the whole of the evidence which was amply referred to previously, the Court finds that the accused’s version raised no reasonable doubt in the Court’s mind, even if the Court does not believe it, whereas the manner in which the discussion ended in the car and the events that followed can lead to no conclusion other than that the accused was angry and had momentarily lost his self-control. [91] With respect to the defence of property raised by the accused, and agreeing that the accused had peaceable possession of the vehicle, it is important to remember that, before being able to consider the complainant as a trespasser, the accused had an obligation to inform her that her presence was no longer desired, then to order her to leave and particularly, to give her the necessary time to do so, whereas, even in this case, he could only eject her using reasonable force under the circumstances. [92] In appreciating the time afforded the complainant to comply, the evidence clearly shows that the accused did not afford her the time necessary to get out of the vehicle, whereas with him gripping her left arm, shaking her and pushing her against the passenger door, she could not get out as soon as he had asked her to, so much so that it was only after he let go of her that she was able to comply, and, even in that moment, the accused pushed her so hard by the shoulder she had the impression her feet flew behind her. [93] Even if he had given her the necessary time to get out of the vehicle, which the evidence does not show in any way, it is certain that the force used by the accused against a woman who was about to get out of his car was unnecessary and disproportionate, and particularly, in no way reasonable under the circumstances. [94] A reasonable person, placed in the same circumstances as the accused, would have chosen to get out of the vehicle to open the passenger door in order to invite the passenger to get out by calmly showing her that her presence was no longer required and, particularly, by giving her the necessary time to comply. [95] A reasonable person acting in such a manner would not have been placed in the situation of racing away backwards even before the passenger door was closed, as did the accused.

[96] Even taking into account the version of the accused, who said he had opened the door from the inside and then slightly lifted the complainant’s left hip with both hands to make her understand that she was to get out of the vehicle, while continuing to repeat loudly several times “Get out !

Get out !”, it has nothing in common with the behaviour of a reasonable person who is not in the least angry, particularly given the speed at which the accused backed his car up immediately after his passenger got out, while the door was still open, not to mention the fact that he drove at high speed after leaving the premises. [97] Because he did not give the complainant the necessary time to comply and without the Court having to appreciate the reasonable force used under the circumstances, the whole of the evidence allows the Court to find that the accused is unfounded in availing himself of the defence of property stated in

section 35 of the Criminal Code . [98] Considering the whole of the context preceding the altercation, nothing in the complainant’s testimony regarding the description of the assault she suffered sheds doubt on her version, which is credible and coherent within the context of a couple dealing with a dispute about a father’s access rights to his children. [99] For the Court, there is no doubt that by gripping the complainant’s upper left arm to shake her against the passenger door of the vehicle and then pushing her by the shoulder with his right hand as she was getting out of the vehicle, the accused committed assault within the meaning of the Criminal Code . [100] Consequently, the Court finds that the prosecution has proved beyond a reasonable doubt the essential elements of the offence charged.

THEREFORE, THE COURT: FINDS the accused guilty. MICHEL BEDARD J.C.Q. Mtre. Martin Bourgeois For the prosecutor Mtre. Steven G. Slimovitch For the accused

Hearing date: August 27 th, 2015.