R. v. Houle, 2019 MBPC 46

CITATION: R. v. Houle , 2019 MBPC 46 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Ritchot ) ) for the Crown - and – ) ) ) Aaron Houle ) ) M. Bhangu for the Accused ) ) ) Reasons for Decision ) Delivered: July 29, 2019 CORRIN, P.J. THE CHARGES [ 1 ] The accused is charged with assaulting Skylar Friesen and her two-year-old daughter, Jaylynn, on May 13, 2018. The information before the Court alleges that the Skylar Friesen assault constituted a

section 266 common assault and the assault on her daughter was an assault cause bodily harm pursuant to

section 267 (

b) of the Criminal Code . THE ALLEGATIONS [ 2 ] The complainant, Skylar Friesen, was the Crown’s only witness. Ms. Friesen told Court that she had broken up with the accused earlier in the day and made arrangements for the accused to come back to their residence and pick up his personal belongings that evening. She testified that she, her father and her daughter, Jaylynn, were in the residence when the accused arrived and that he was accompanied by his mother and aunt. Ms.

Friesen related that she had left the door to the apartment unlocked and that she had packed all his possessions in a bin which she had placed near the front door. She further related that Mr. Houle, his mother and aunt had come to her bedroom almost immediately after their arrival, soon after she had “buzzed” them up (unlocked the downstairs entrance door) and permitted them entry to the apartment building.

She told Court that she had gone to her bedroom after unlocking the main entrance door as she didn’t want to see the accused. [ 3 ] The complainant testified that the accused came into the bedroom and that his mother and aunt stood in the doorway to the room.

She recollected that they had argued about their relationship situation in the presence of Jaylynn, the mother and aunt for five to ten minutes, that at this point the aunt had come into the room and taken Jaylynn to the bathroom, because the child had become upset and was crying. [ 4 ] The complainant alleged that the accused had punched her in her forehead area a short time after the removal of the child. She testified that she had been sitting on the bed and he had been standing over her at such time.

Court was told that both the child and the aunt were out of the room when this event occurred. [ 5 ] The complainant went on to describe the aunt then returning with her daughter and both the aunt and the mother departing from the immediate vicinity of the bedroom, leaving the two complainants alone in the room with the accused. Ms. Friesen testified that the arguing had persisted for approximately ten minutes after the child returned and that the accused had become agitated by Jaylynn’s constant crying and demanded that she desist, and that he had then struck the child in the face. Ms.

Friesen related getting off the bed and fleeing from the room at this point. [ 6 ] Ms. Friesen told Court that notwithstanding all the commotion, her father remained in the living room throughout the alleged incident. It was her evidence that she thought he was watching television at such time. The Court was left with the impression, albeit by inference, that she hadn’t discussed this subject with her father after the alleged incident had concluded.

She did, however, testify that she had asked her father to examine Jaylynn’s face right after the incident and had taken the child to the hospital after receiving his opinion. On direct examination, Ms. Friesen related that she had not told police that her father was in the suite when investigators asked her to disclose the identities of persons present during the assaults. She explained that she hadn’t provided this information because her father had never done or said anything during the alleged incident. [ 7 ] On cross-examination, the complainant initially told Court that the hospital staff called police.

When questioned further by Defence she acknowledged that her niece, who she had picked up en route to the hospital, had called the police at her request. During

cross-examination, the complainant also conceded telling police investigators that the accused’s mother and aunt were not in thebedroom during the alleged incident. [8] Defence also questioned the complainant respecting another significant difference between her in-court testimony and herstatement to police, that she told investigators that the child was present in the bedroom when she was struck by the accused, not thatJaylynn had been in the bathroom with the aunt.

During cross-examination, the complainant revised her direct testimony and related thatthe aunt had taken the child to the bathroom after she had been assaulted, not before as described during her direct examination. [9] On cross-examination, the complainant also testified that the accused had not taken the bin containing his clothing and otherpersonal belongings when he left the apartment notwithstanding that she felt certain that he knew his possessions were in the bin she hadplaced just inside the front door of the suite. [10] The Crown also filed a medical report and photos of the two complainants’ injuries as part of its case.

The medical reportdescribed the child’s injury to be attributable to blunt force trauma. [11] The accused was the only witness called by the Defence. He denied punching the complainants. It was his evidence that he hadcome over, as pre-arranged with the complainant Friesen, to pick up his belongings. He also related the presence of his mother and aunt.According to him, he had found his personal belongings in a bin in the bedroom closet and had taken the bin with him when he left thesuite. [12] Mr.

Houle related that the two complainants were in the bedroom when he arrived, that they were watching a movie, and that hehad gone to the bedroom because that was where his belongings were. He also testified that they had argued soon after he had arrived,that he wanted a full explanation respecting Ms. Friesen’s decision to break up. It was his evidence that his mother and aunt hadn’t stoodin the doorway, that they had remained in another room during the argument in the bedroom.

He related that the only act of physicalviolence was perpetrated by the complainant Friesen, that she had attacked him from behind when he was taking his possessions fromthe closet. It was his testimony that she had “grabbed” at him and that he had pushed her away. [13] On cross-examination, Mr. Houle denied that he had become angry during the verbal exchange with Ms. Friesen, even thoughshe had called him a “loser” and a “bitch”.

He also conceded that Jaylynn had been crying during their argument and that in the highlycharged circumstances, this could have been a source of significant annoyance. [14] The accused also agreed with the Crown that Ms. Friesen had not been happy to see him when he came back for his belongingsand wanted him to leave the apartment as soon as possible with the bin containing his belongings and that he could have left theapartment in a couple of minutes if he hadn’t wanted answers about her decision to end their relationship.

THE LAW [15] An accused person cannot be convicted of a crime unless and until the offence is proved against him or her beyond a reasonabledoubt. The onus of proof is always on the prosecution to prove the case. The application of this principle in cases such as this one, wherethe accused testified, leads the court to the principles articulated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. In W.(D.),at p. 758, the Supreme Court of Canada provided guidance to trial courts on how a trier of fact should give effect to the presumption ofinnocence.

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [16] The W.(D.) analysis requires that a trial judge stay focused on the central issues, that being whether the Crown has proved thecase beyond a reasonable doubt. “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact isleft with a reasonable doubt about the guilt of the accused...” (R. v.

Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639 at para. 21). Itis trite but true that a trial judge is not permitted to simply compare the evidence of the witnesses and choose the version that he or sheprefers. [17] At the first and second stage of the W.(D.) analysis, the court must consider all the evidence, and may find that other evidence,i.e. the testimony of other witnesses, including the complainant, makes the accused’s evidence unreliable and/or unbelievable. This doesnot mean that the court is choosing between the Crown’s evidence and that of the accused.

On the contrary, it simply ensures that theaccused’s evidence is not being assessed in isolation, but in the context of all the other evidence in the case. [18] The Manitoba Court of Appeal has also followed the 2007 decision of the Ontario Court of Appeal in R. v. Hoohing, 2007ONCA 577, in which Feldman J.A. stated (at para. 15): A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence.

When the jury is applying thefirst two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether itleaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence thatfavours the accused in the context of all the evidence...

The evidence of any witness, including an accused, may be believable standingon its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witness’s evidence,that evidence may no longer be believable, or, in the case of an accused, may no longer raise a reasonable doubt. ANALYSIS [19] Defence argued that the accused should be acquitted on either the first or second stage of the W.(D.) analysis. Significantly, it

also contended that the Crown had failed to provide evidence on the third prong that proved the charge allegations beyond a reasonable doubt.

Defence contended that the complainant’s testimony was neither credible nor reliable and that the corroborative evidence, the photographs and medical report, were not sufficient in the overall context of the case, as asserted by the Crown, to tip the evidential scale in favour of the prosecution. [ 20 ] The Crown conceded that the complainant’s testimony contained inconsistencies that “do not favour the complainant’s version of events” but submitted that the inconsistencies were reflective more of reliability as opposed to credibility issues.

For example, the Crown questioned how the complainant’s evidence respecting the mother and aunt being at the bedroom doorway during the incident could be perceived as purposely misleading when such detail could only serve to “work against her version of events” because the two eye witnesses were both members of the accused’s family, not hers. The Crown further argued, as previously mentioned, that the “inconsistencies in her (the complainant’

s) evidence should not undermine this Court’s confidence in her evidence at trial as there is corroboration of her version of events in the form of injury photos and a medical report.” [ 21 ] It is the Court’s view that the context of this case favours an “out of order” review of the three W.(D.) considerations. For that reason, the Court will begin its W.(D.) analysis with the last (third) analysis; whether on the basis of evidence that it accepts, it is convinced beyond a reasonable doubt by that evidence, of the guilt of the accused. [ 22 ] In R. v.

Giesbrecht , 2014 MBCA 99 , the Manitoba Court of Appeal cited the Supreme Court of Canada’s approval of “out of order” credibility findings quoting paragraph 21 of the Vuradin decision (previously cited herein) and by reference to paragraph 25 of its own Menow decision. [ 23 ] In no particular order, the Defence argued that the following were “significant inconsistencies” and discrepancies that raised either credibility or reliability issues with respect to the complainant’s testimony: - That when asked on cross-examination about who called the police, the complainant indicated that the hospital did and then, when questioned further, altered her testimony, stating that her niece also called the police at her request.

The second, more proactive version, is certainly more favourable to the complainant as it supports her version of how the child complainant’s injuries were sustained. The second version’s change in evidence certainly gives rise to the possibility, slight or significant, that the complainant purposefully altered her evidence to bolster her case i.e. that she reported the assaults to police, not the hospital. - That when initially asked by Defence counsel why she told police investigators that the mother and aunt were in another room, she denied making such a remark.

A short time later, upon further questioning, the complainant agreed with Defence that she had provided the police with the inconsistent and differing version of the incident. The Court agrees with the Crown, as previously herein mentioned, that such inconsistency does not appear to be reflective of mendacity or any purposeful attempt to deceive the Court. However, the Court is concerned that the deviation may have been an attempt by the complainant to bolster the strength of her allegations at the time they were related to the police investigators.

After all, investigators might have been less likely to ‘accept’ her allegations as truthful if they had been made aware that there were two potential eyewitnesses present at the time of the incident. Indeed, in such circumstances, they would probably have felt it necessary to interview the aunt and the mother in order to clarify what actually occurred.

For this reason, the Court feels that this is another discrepancy that suggests a possible witness credibility rather than a reliability issue. - That the complainant acknowledged during direct examination that she had not told police investigators the truth when asked for the identities of all persons present in the suite at the time of the alleged incident i.e. she failed to tell them that her father was present at such time.

The Court found her explanation for such discrepancy to be less than convincing - that she didn’t disclose his presence because her father hadn’t done or said anything at the time of the incident. On its face, this seemingly facile explanation respecting the misleading of the investigators seems to be a purposeful attempt to frustrate the fulsome investigation of the allegations presented to the police. - That the complainant gave two differing versions of what transpired when she was struck by the accused.

On direct examination, the complainant testified that the aunt had taken Jaylynn out of the room prior to the assault. On cross-examination, when confronted with her police statement by Defence, that Jaylynn had started crying when she was struck by the accused, she initially indicated that her in-court evidence was only reflective of more detail and reiterated that the child was not in the room when she was punched. A short time later, after concerted Defence cross-examination about such discrepancy, the complainant acknowledged that she was not really sure whether Jaylynn was present at such time.

The Court is of the opinion that such inconsistency is possibly reflective of the complainant’s efforts to mislead police investigators. After all, she had told them soon after the alleged incident, that the aunt was outside the room and presumably, as such, advised them that she had not witnessed the incident. On the other hand, the Court was told that the aunt had been in in the bedroom doorway but somewhat conveniently, had taken the child to another room just prior to the assault on herself.

When presented with this inconsistency by Defence the complainant first asserted that the police statement was correct and that Jaylynn was taken to the bathroom after she was struck. A couple of minutes later, after further questioning, she then asserted that her present memory of events was better than it was when questioned by the police. The Court observes that it found the complainant’s evidence on this subject matter very troublesome insofar as it suggested that she may have prevaricated to the police and/or have an extremely and seemingly inexplicably confused and unreliable memory of events.

Put bluntly, the Court perceived the complainant’s evidence to be ‘all over the map’ in relation to this aspect of her allegation. This suggests that it would be extremely dangerous to rely on the complainant’s evidence given all the other discrepancies and inconsistencies that have been discussed herein. [ 24 ] The Court agrees with Defence that the complainant’s changing version of events between direct and cross-examination is disturbing. The Court also concurs with Defence respecting the complainant’s wavering between her police statement and her testimony in court.

Concerns are definitely present in such respect. There are simply too many unexplained contradictions and discrepancies to suggest that we are dealing with an unreliable as opposed to a less than credible complainant. The Court therefore concludes that it has concerns with respect to both the reliability and credibility of the complainant’s evidence.

Of course, this pertains to step two as well as step three of the W.(D.) analysis, the reason I decided to perform the step three analysis out of order. [ 25 ] Three further points of contention must be dealt with at this stage of review: the Crown’s suggestion that there was no evidence suggestive of Ms. Friesen “showing any animus against the accused” and that this should satisfy the Court that “there is no basis to

believe she would have fabricated these allegations” as she would have “nothing to gain in doing so.” And secondly, the Crown’sassertion that the Court should regard the injury photos and medical report as corroborative evidence which should sufficiently buttressthe “Court’s confidence in the complainant’s credibility and reliability.” And finally, the Crown made reference to two cases, R. v.Carter, 2005 BCCA 381 and R. v.

Giroux, 2006 CarswellOnt. 2102, which according to the Crown support the proposition thatDefence’s failure to question the complainant with respect to how the injuries disclosed in exhibits 1 and 3 may have taken place was aviolation of the rule in Browne v. Dunn. [26] Dealing with the third concern first, the Court notes that both cases discuss the application of the rule in Browne v. Dunn, aBritish civil case heard in the House of Lords in 1893. The so-called rule is essentially a fairness rule that was subsequently adopted bymany Commonwealth high courts.

The rule prevents the ‘ambush’ of a witness by opposing counsel who fails to give a witness anopportunity to state his position with respect to later evidence which will contradict the witness on an essential issue in the case bypermitting a trier of fact to take account of the absence of cross-examination when assessing the credibility of the witness and thecontradictory evidence offered by the opposing party. [27] Defence, in his written submission, cited paragraphs 42-46, 57, 65 and 66 of Carter, observing that such passages were actuallysupportive of his cross-examination approach and not the submission made by the Crown.

According to Defence, Crown counsel’sargument in our case, if accepted, would extend the requirement to cross-examine well beyond the rule in Browne v. Dunn because theaccused was only obliged to cross-examine on matters that were significant and essential matters, that the rule didn’t oblige Defence toadopt the language of Finlayson, J.A. in R. v.

Verney, (1993) (ON CA), 87 C.C.C. (3d) 363, at 376, “to slog througha witness’s evidence in chief putting him on notice of every detail that defence does not accept.” [28] At paragraph 62 of Carter, Thackray J.A., speaking for the court, states that “(Crown) counsel should not invite juries to drawinferences against the credibility of a witness because of ‘non confrontation’ except in the clearest of cases”, noting that such anapproach “carries the suggestion that the tactic was used with the approval, if not direction, of the accused.” Defence counsel in our caseargued that this was what the Crown was inviting me to do in reference to his client, notwithstanding that he and not the accused devisedthe approach taken on cross-examination. [29] Defence also reminded the Court that his client had not testified respecting alternative explanations for the injuries and as such,there was therefore no “positive obligation” on the Defence to put questions about this subject matter to the complainant.

Defencereasoned that any negative inference arising in the specific context of our case would effectively be tantamount to a shifting of the burdenof proof to the accused, something which would run “afoul of the presumption of innocence.” Crown counsel’s written submission madeno mention of the Carter case, nor did it contend with Defence’s submissions in such respect. The Court is of the view that the rule inBrowne v. Dunn does not pertain to this case.

That said, I acknowledge that if this was a clear case of exclusive opportunity I probablywould have concurred with the Crown. [30] Turning to the Crown’s lack of animus argument, the Court does not share the prosecutions opinion. These allegations are in thecontext of a dissolution of a cohabitation relationship. Both parties testified that they had argued during the course of the day, that theywere both emotionally upset by the circumstances surrounding their situation. The complainant acknowledged that the accused hadranted about how well he felt he had treated her during their relationship.

The accused, on cross-examination, claimed that thecomplainant had called him a “fucking loser” and a “bitch”, something that the Crown alluded to in its argument for conviction - that theinsulting remarks had made him angry, indeed so angry that they probably caused him to lose self-control and resort to violence. Ofcourse something unspecified had almost certainly made the complainant so unhappy as to make her throw the accused out of herapartment. With all this in mind, the Court does not perceive the complainant as having been above vengeance.

And one cannot discountthe possibility that the child complainant’s injuries were not caused by violence perpetrated by the accused. One must keep in mind thatthe complainant’s failure to tell investigators about her father’s presence in the suite could have been calculated i.e. to prevent himtelling police about something that either occurred or didn’t occur on the evening in question. Maybe the child fell and injured her face?Maybe someone else struck the child?

There were after all two other people in proximity to the child that evening. [31] Moving on to the Crown’s last argument, that the medical report and photos are sufficient corroboration to justify convictions -the Court does not agree. If the complainant’s testimony hadn’t been so internally inconsistent, suggestive of a lack of credibility, I mighthave agreed with the Crown. But such was not the case.

Her testimony was rife with inconsistencies and discrepancies, some of it,particularly her lack of candour with police investigators, suggestive of an attempt to conceal the full truth from law enforcementofficials. [32] Writing for the majority in the R. v. Lifchus case (1997) (SCC), 3 S.C.R. 320, Justice Cory recommended thiskind of advice for criminal trial fact finders at paragraph 39: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. [33] Applying reason and common sense in this case, there are sources of doubt. Fallibility lies in the discrepancies andinconsistencies which presented in the complainant’s evidence.

This is therefore a case where the accused may have misrepresented thetruth about what actually transpired but, even if such were the case, I am unable to know with an appropriate level of certainty whatactually happened. In other words, I believe he is probably guilty but am far from certain that such is the case. The bottom line so tospeak is that the complainant’s credibility issues compromised the Crown’s case. So while I agree with the Crown that the accused’sevidence did not per se raise a reasonable doubt as to his guilt, I am conscientiously unable to find him guilty.

For these reasons the Courtacquits the accused of both charges. “Original signed by:” CORRIN, P.J.