R. v. Gordon, 2019 ONCJ 863

CITATION: R. v. Gordon , 2019 ONCJ 863 DATE: October 28, 2019 Information No.: 2811-998-18-45709-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JEREMY O. GORDON R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on October 28, 2019, at OSHAWA, Ontario APPEARANCES : M. Tait Counsel for the Crown R. Parker Counsel for Jeremy O. Gordon REASONS FOR JUDGMENT – WAKEFIELD, J. (ORALLY) : Jeremy Gordon stands charged that on the 29 th day of August 2018 he committed a common assault on his spouse as well assault with a weapon, namely; a clothes iron.

The Crown called the complainant and the defence called the defendant. All three branches of W.(D.) are now engaged. Both witnesses described a marriage in which sequential physical fights ensued over the short duration of the marriage. The subjects are here as some charges arose from a physical dispute upon awakening of the morning of the offence date. The complainant was impressively self-confident and is one who is clearly financially disciplined, unlike her description of the defendant. She described the day in question following the dispute the night before that was not resolved prior to going to bed.

In the morning of the incident, the pair got up and the defendant gets dressed and then goes into the ensuite washroom, brushes past the complainant on a couple of occasions. She has described herself as careful not to provoke a reaction from him, however, she does nudge him back when he comes back in on a subsequent occasion. She describes going to the closet to get clothing where he follows her and starts strangling her. She returns to the ensuite washroom to again try and fix her hair before going to work. He follows her there, staring at her.

She screams at him and sprayed his face with a water bottle to which he replies by spraying her with another water bottle. She describes her reaction at this point as thinking he just wants to waste time. They both take off the tops of their respective water bottles and go into the bedroom, presumably with the intent to throw water on each other. She testifies that she sees the unplugged iron he had just used to iron his clothing and that he dares her to touch him with a hot iron, which she does by tapping his belt buckle.

He forces her down on the bed grabbing the arm of the iron and takes the iron and presses it on her chest. There is a hit to her lip causing bleeding inside her mouth. This all occurs, apparently, while in the bedroom next door is an Airbnb guest couple staying the night.

She takes photos of her injuries with her iPhone and declines his offer of driving her and takes her motorcycle to work. The photos that she took were of her mouth and her chest and shoulder. The police photos show a consistent similar mark on her chest she described as a burn from the iron. The defendant testified. His version runs parallel in many ways with that of the complainant. He confirms both getting up at the same time, her showering while he irons his clothing. He showered and got dressed.

There is possible brushing past the complainant on his testimony in order to reach the water spray bottle he uses for his hair. He describes her as starting to punch him in reaction, though ineffectively and not hurting him. He is trying not to provoke her, an interesting parallel to the intent of the complainant trying not to provoke him on her testimony. In the bedroom she gets the iron without any daring by him and presses it on his chest over the shirt he is wearing. I note that at one point in her testimony she went from the belt buckle to the lower midriff and then corrected it back to the belt buckle.

In any event, the defendant now grabs her arms to move the iron off his chest. He denies the iron was only touched on his belt. He admits in the struggle of moving the iron that it had hit her in the mouth causing bleeding. He denies hitting her chest with the iron which he says stayed in her hand. He apologized and helped her clean up and he says he drove her to the GO station where she took the train to work. He too testified in a confident manner in which he withstood cross-examination, being quite consistent in his testimony. I have no basis with which to reject his testimony.

I agree with the Crown’s submissions that he appeared to be minimizing some of his involvement, but as the Crown also submitted regarding the complainant, this incident all happened very quickly. I do not reject the defendant’s testimony as being implausible just because he did not strike or fight the complainant while she was punching him, given that the strikes did not hurt him and it was a domestic relationship in which one would hope that a larger male would not punch back. Although, the sad continuing series of domestic violence cases in this Court would suggest many domestic partners do resort to violence.

The defendant denied he tried to strangle the complainant and the entire closet incident. The photographs do not demonstrate bruising to the throat. The complainant clearly participated in petty choices with respect to the defendant’s cricket equipment and I find as a fact, on the uncontradicted testimony of the defendant, that the police have made at least two telephone appointments with the complainant to retrieve the defendant’s passport which the complainant did not live up to her appointments.

Then again, if her testimony is a true rendition of what occurred, then her actions after the fact are understandable. Apparently, there has been an ongoing Family Court proceeding that neither Crown or defence has reviewed, nor is it clear if the timing of these proceedings impacts the review of facts in the criminal proceedings. The fact of the Family Court proceedings in these circumstances did not assist me. The text messages between the two regarding skin on the iron could mean either the mouth injury or the chest burn. It is not clear if there is any skin on the iron as it was never seized.

There is no evidence if the size of the iron fits the chest mark on the complainant. There is no evidentiary description of the iron surface, for example, if it has holes for steam, to note if the chest marks are consistent with an iron burn. I did not hear from either investigating officer to confirm the nature of the chest mark on the complainant. There appear to be no blistering. The marking did not change between the dates of the two photographs, the one she took of herself and the police one. However, the defendant did confirm that the chest mark was not there beforehand.

On review of the photographs, it is not clear to me if they depict a burn or a bruise, nor do I have the ability to differentiate such markings other than to note none of the photos show the bright redness I would have expected to see, but then again, such colouration might not be expected. There is not any allegation that the same iron burned the complainant’s mouth when it had its contact there. There are marks on the complainant’s upper chest, but I did not see any bruising or marks on the photos around her throat, indeed as one would expect from the strangling allegation.

Indeed, the quality of the iPhone photos do not assist me as to what is shadow and what is bruising or burns. Another evidentiary lack is the embedded information in the iPhone photos to confirm the date and time they were taken. That too was not provided. I do note that while the complainant did assert that she was trying not to provoke the defendant, her actions were certainly participative in a physical altercation which started the incident and she was the first to pick up the hot iron and to try to apply or actually did apply it to the defendant, depending on the two testimony versions.

To prevent being burned, it would be both consistent and understandable for the defendant to try and prevent the further application of a hot iron to his body. Neither the Crown or defence reached out to the guests in the next bedroom as to what they may have heard. There are no witnesses called by either side regarding the complainant’s reception at work that day or the means by which she went to work. It was not clear to me if she regularly took the Go Train and if she had a pass or not, or if there would be a record of such transit.

Indeed, the police investigation seems to have ended with just taking a statement and some photographs. All I am left with are the photographs and the two sets of testimonial versions I have heard. As such, with those two competing versions of the witnesses, I find I cannot determine the truth of the matter which amounts, in my view, to the Crown not having met its high standard of proof despite my level suspicions of what really occurred.

Stand up. In the circumstances, I am finding you not guilty of both charges. You are free to go.