2017 QCCQ 16565, 2017 QCCQ 16565

R. c. Morgan 2017 QCCQ 16565 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and penal Division No: 500-01-147749-169 500-01-147750-167 DATE: July 5, 2017 ______________________________________________________________________ BY THE HONOURABLE JULIE RIENDEAU, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

JONATHAN MORGAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff and the accused were seeing each other at the time of the events, notwithstanding conditions the accused had in several probation orders that forbidden him to do so.

The plaintiff sustains that on December 14 th , 2016, the accused punched her repeatedly on the head, and later threw her on the ground. [ 2 ] The accused has to answer to one count of assault causing bodily harm, one count of uttering death threats or bodily harm, and two counts of breach of a probation order. [ 3 ] While he recognized he breached probation orders, he denies having committed any other gestures than slapping the plaintiff twice, for which he pleads self-defence under section 34(1) of the Criminal Code . I.

QUESTION AT ISSUE [ 4 ] The matter at issue is whether or not the evidence, taken as a whole, demonstrates every essential element of the offences the accused is charged of beyond a reasonable doubt, that, after assessing the credibility of the witnesses in accordance with the principles edicted by the Supreme Court of Canada in W.D . [1] [ 5 ] The defence of self-defence does not shift on the accused any burden of proof. II. CONTEXT [ 6 ] The plaintiff and the accused were seeing each other at the time of the alleged offences. [ 7 ] The events occurred at the accused’s apartment.

The plaintiff had come to visit him and she stayed overnight. The second night she was there, a dispute arose. [ 8 ] While the plaintiff and the accused versions resembles as to what they did during the two days, they differ diametrically with regards to what brought the plaintiff to come at the accused’s apartment and about the circumstances surrounding the dispute. [ 9 ] What is the plaintiff’s version? [ 10 ] According to her, she decided to come to the accused’s apartment after receiving numerous calls, emails, text messages and Facebook messages from him.

She presumed he was intoxicated because he is every time he acts like that. She decided to go visit him to try to convince him to address his drinking problem. As she mentioned, they both had a drinking problem. [ 11 ] The night of the incidents, both the plaintiff and the accused had consumed alcohol. According to her, the accused was drunk as he started drinking early in the day. She was not, even if she had 7 or 8 beers. As an alcoholic, it takes more than that to get her drunk.

[ 12 ] Around 11 pm, they had a heated argument. As the plaintiff said, it was a typical alcoholic discussion that goes nowhere. At a certain point they were even screaming at each other. She decided to leave the apartment and went in the bedroom to get her bag. [ 13 ] It is then that the accused arrived, grabbed her by the hair, pushed her on the bed and punched her repeatedly on the head with his hands and with his fists. She was trying to protect herself by adopting a foetal position, with her hands on her head.

She was screaming and crying, asking him to stop. [ 14 ] At a certain point, he left and went to the kitchen, then came back. He tried to kiss her. Then he pressured her not to call the police otherwise he would kill her. Then he threw her on the ground, her head strongly hitting the floor, and left the room. [ 15 ] Soon after she heard someone strongly knocking on the door. She was on her way out of the bedroom. It was the police. She did not called them.

Neither did the accused if we refer to his testimony. [ 16 ] While going toward the apartment’s door, she saw the accused with a piece of glass in his right hand, a cut on his right cheek, and blood on both. She doesn’t know what happened. However she remembers hearing a sound after the accused got out of the bedroom after throwing her on the ground. [ 17 ] When she saw the accused’s cheek, she approached him, slightly touched him saying “what did you do?” According to her, that may explain why she had a trace of blood on the side of her left thumb’s nail and on her chest.

The police verified both hands when she was at the hospital. [ 18 ] She was just behind the accused when the police entered the premises and separated them. [ 19 ] She was brought by ambulance to one hospital, then transferred to another one in the Trauma care

section for a scan to be taken. She was having headaches, she was nauseated and she had aching hands after trying to protect her head. She was also feeling numbness in her hands. After a while, she felt her back and neck aching also. It was the police officer who convinced her to go to the hospital. The plaintiff did not want to press charges against the accused. [ 20 ] Documents from the Lakeshore hospital indicates that the CT-scan showed evidence of possible aneurysm. The plaintiff explains that she was transferred to General Hospital after that finding.

It also indicates that the straightening of cervical lordosis found could be related to muscle spasm. She was released from the General Hospital with the recommendation to go to her own doctor or to the emergency in Ontario for a follow up. [ 21 ] After the incident, the plaintiff talked to the accused on the phone on several occasions. He called her numerous times from prison. Ninety six times according to her. She answered 7 or 8 times. He was pressuring her to drop the charges against him. He was telling her to call the prosecutor.

He was asking her not to show up in court. [ 22 ] The plaintiff recorded one of the discussions. She tells the accused to stop calling her because it is not worth it. He insists on her calling the prosecutor. He repeatedly asks her if she will help him, to which she answers there is nothing she can do. She reproached him of almost killing her this time. The plaintiff mentions she was about to leave when he jumped on her and almost killed her. The accused does not deny any of these allegations. The only thing the accused seems interested in is to know if she is going to help him.

The plaintiff finally tells the accused he is not even conscious of the seriousness of his actions. The accused answers by saying that he is, adding “you think I’m going to drink again after what happened?” [ 23 ] The accused has a completely different version of the events. [ 24 ] According to him, it was planned that the plaintiff would be coming to his place the day she arrived, as she usually stays with him several days a week. [ 25 ] As the plaintiff mentioned, a dispute arose the second night she was there.

He is however certain that it was about his cellphone and the fact she was trying to snoop on him again going through its content. They were in the kitchen. [ 26 ] As he was trying to get his phone from the plaintiff’s hand, she swung a glass she was using as an ashtray on his right cheekbone, cutting him. The glass broke as the result of the impact. He slapped her twice, one time on each side of her head. It was a reflex induced by the hit. He told her to go to bed and that they would deal with the situation the next morning. She left for the bedroom saying she was leaving.

Then the police arrived. [ 27 ] The accused confirms having priors with regard to assault on the plaintiff, harassment towards his ex-wife and the plaintiff, breaches of conditions and drunk and driving offences. According to him, the plaintiff is to blame for all of his judicial problems. [ 28 ] The police officer who testified confirms the accused had a cut on his cheek and blood on one hand when he opened the door. The plaintiff was a little behind, to the left. She was crying and appeared frightened. She was in shock.

There was a lot of empty alcohol bottles on the floor in the kitchen and in the living room, as well as pieces of shattered glass. [ 29 ] The accused was calm. He had speech problems. He smelled alcohol. He did not know why he was cut. [ 30 ] When asked if the plaintiff was smelling alcohol, the police officer answered that it was not a strong odor of alcohol. [ 31 ] When he met the plaintiff at the hospital, she was confused and had a foggy memory. III. ANALYSIS [ 32 ] Faced with contradictory versions, the Court must analyse the evidence of the accused while taking into consideration the whole

of the evidence and the rules concerning credibility edicted in W.D. [2] [ 33 ] First, if the Court believes the evidence of the accused, he must be acquitted. [ 34 ] Second, if the Court does not believe the testimony of the accused, but is left with a reasonable doubt by it, he also must be acquitted. [ 35 ] Third, even if the Court is not left with a reasonable doubt by the evidence of the accused, it has to be convinced beyond a reasonable doubt of the guilt of the accused, after analyzing the whole of the evidence, before finding him guilty.

Otherwise, the accused must be acquitted. [ 36 ] The burden of proof rests on the prosecution and never shifts to the accused.

It is up to the prosecution to prove beyond a reasonable doubt that the accused was not acting in self-defence. [ 37 ] Does the Court believe the accused’s version when considering the evidence in its entirety? [ 38 ] Does the accused version raise a reasonable doubt as to his guilt when considering the evidence in its entirety? [ 39 ] The behavior of the accused, as it appears in the recording of the conversation between the plaintiff and the accused, is inconsistent with the accused’s version.

By remaining silent when the plaintiff reproached him of almost killing her, the accused essentially confirms the beating. It is unconceivable that the accused would remain silent if he had “only” slapped the plaintive. Two open hand slaps could in no way be referred to as a conduct that almost kill someone. Had he been disagreeing with what she was saying, it would have been logical that he stopped her and denied was she was saying, or at least rectified her.

Moreover, his answer when being asked about the seriousness of his conduct is indicative of a guilty mind. [ 40 ] The assertion of the accused that the plaintiff swung a glass on his cheekbone during the dispute is also irreconcilable with the observation of the police officer who noticed that there were pieces of shattered glass in the kitchen and in the living room.

One has to remember the accused said the incident occurred in the kitchen and that the glass broke instantly. [ 41 ] The police officer also nuances the accused’s version about the fact he was not drunk when he said the accused had speech problems. [ 42 ] The version of the accused is also inconsistent with the state of the plaintiff as observed by the police officer when he first saw her and with her state at the hospital.

As the door opened, the plaintiff was frightened and was crying, while she was confused and had a foggy memory when the police officer met her at the hospital. [ 43 ] What about the findings contained in the medical reports? They are also incompatible with the action of slapping twice someone who is facing you, once on each side of the face.

The slaps, as described by the accused, would never have brought anyone to show evidence of possible aneurysm and straightening of cervical lordosis that could be related to muscle spasm at a CT-scan. [ 44 ] As for the behavior of the accused in the last few days before the plaintiff came to his apartment (including December 13 th ), as it appears in the calls, emails, text messages and Facebook messages filed by the plaintiff, the least that can be said is that the accused was more than insistent in trying to talk to her while it seems she was refusing to do so.

The wording of the said messages also does not fit with the accused’s assertion that it was already planned the plaintiff would be back at his apartment during the week. The angriness showed in some messages could be compatible with the alleged accused’s behavior the night of the events, without being as severe obviously. [ 45 ] What about the accused’s prior convictions? They cannot be used as evidence of the accused’s propensity for violence arises, in other word to conclude that he is the type of person who is likely to have committed the offences he is accused of.

However, they are clearly relevant in assessing the accused’s credibility as a witness. [3] [ 46 ] As it was mentionned by the Court of appeal In Tremblay [4] , "Le mépris persistant de la loi est pertinent pour apprécier la crédibilité d’un témoin.

On peut inférer qu’un individu qui enfreint sans cesse la loi a peu de respect pour la vérité et est donc plus susceptible de mentir." [ 47 ] In clear, the accused prior convictions are relevant and they may affect his credibility and the reliability of his testimony when analyzing the evidence. [ 48 ] Related to his prior convictions, it has to be noted that the accused mentioned pleading guilty more than once not because he was guilty but because he was being practical.

If it is true, this Court sees in such a behaviour disrespect for the judicial process. [ 49 ] The prosecution submits the accused lied when he said he had a valid restricted driver’s license conditional to the use of an alcohol ignition interlock device.

According to the law, no one can obtain such a permit before the expiration of a delay of one year if a person was convicted twice within the previous two years. [ 50 ] The Court cannot retain this argument because the dates of the convictions were not established, even if the convictions were admitted by the accused. [ 51 ] What about the plaintiff’s version? [ 52 ] First, it has to be noted that nothing tends to support the fact the witness would have a motive to mislead. She did not call the police. She did not want to press charges against the accused, as also reported by the police officer.

She also did not want to go to the hospital. It was the police officer who convinced her to do so.

[ 53 ] The Court also noted that at no time the plaintiff had a vindictive attitude while testifying. As the accused did, she called their relationship a toxic one. She described their dispute the night of the events as being one implicating two alcoholics. More than once during her testimony, and without hesitation, she said her reaction in posting messages on her Facebook page was one of frustration. She was more than candid about some childish behavior she adopted. She was resentful, but only with regard to the fact the accused hurt her.

She even mentioned the accused was perfect when he was sober. [ 54 ] As for her own evaluation of her consumption of alcohol, she said that she was not drunk. This assertion is supported by the police officer who said he noticed a slight odor of alcohol emanating from her. [ 55 ] The plaintiff’s version of the events is supported by the Lakeshore Hospital’s report which mentions a CT-scan showing evidence of possible aneurysm and the straightening of cervical lordosis that could be related to muscle spasm.

Other than the numerous hits to the head, one has to remember that according to the plaintiff’s version, her head also hit the floor when she was thrown on the ground. [ 56 ] Other than the above, the recording mentioned earlier also support the plaintiff’s version, so as the content of the calls, emails, text messages and Facebook messages filed by the plaintiff. [ 57 ] The defence submits that the plaintiff had no visible signs of any beating and that the medical reports only refer to a possible trauma, which is somehow inconsistent with the plaintiff’s version. [ 58 ] The Court also disagrees.

The fact that a CT-scan shows evidence of possible aneurysm and the straightening of cervical lordosis that could be related to muscle spasm cannot be assimilated to an absence of evidence concerning a person’s physical condition. [ 59 ] The defence submits the fact the plaintiff had mistaken as to when she arrived at the accused’s apartment must discredit her. [ 60 ] The Court disagrees. [ 61 ] The plaintiff explained why she initially thought the dispute occurred the day she arrived at the accused’s apartment.

She also explained why she is now certain it happened the second day she was there, based on a communication she had with someone with regard to her broken cell phone. The Court also understands from her testimony that the notable thing that happened while she was there in December is the dispute and the accused’s behavior towards her.

In these circumstances, the Court finds inconsequential she initially mentioned the dispute occurred on the night she arrived at the accused’s apartment. [ 62 ] The Court also finds inconsequential the fact the plaintiff did not mention to the police officer why the couple had a dispute since she said they had a dispute. [ 63 ] The fact she changed the accused’s cellphone password also does not affect the reliability of her testimony since she explained clearly why she did it and even recongnized it was a childish behavior. [ 64 ] Consequently, in view of the above reasons and in view of all of the evidence, the Court does not find credible the testimony of the accused. [ 65 ] Also, his testimony does not raise a reasonable doubt taking into consideration the whole of the evidence. [ 66 ] Did the prosecution proved beyond a reasonable doubt every elements of the offence the accused is charged of? [ 67 ] A proof beyond a reasonable doubt is based upon reason and common sense.

It is logically connected with the evidence, or the absence of evidence. [ 68 ] The testimony of the plaintiff is logical, coherent, and reveals no contradictions. Moreover, as already mentioned, it is supported by the police officer’s testimony with regard to many aspects, as well as by the recording and the documents filed, including medical reports. [ 69 ] Seeing as the Court retains the testimony of the plaintiff as being an accurate account of the events which happened on the night of December 14 th , it is not necessary to examine the application of the self-defence defence presented by the accused. IV.

CONCLUSION [ 70 ] In view of all the circumstances, the evidence, taken as a whole, demonstrates every elements of the offences beyond a reasonable doubt in both files. FOR THESE REASONS, THE COURT: DECLARES the accused guilty on the 2 counts in the file 500-01-147749-169. DECLARES the accused guilty on the 2 counts in the file 500-01-147750-167.

__________________________________ JULIE RIENDEAU, Q.C.J. Me David Landry Attorney for the Prosecutrix Me Antonio Perfetto Attorney for the Accused Date of hearing: May 25, June 14 & 29, July 3 2017