HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 793

ONTARIO COURT OF JUSTICE CITATION: R. v. Trudeau, 2017 ONCJ 793 DATE: 2017 11 22 COURT INFORMATION: 16-171 Wikwemikong BETWEEN: HER MAJESTY THE QUEEN — AND — DELORES JEAN TRUDEAU Before Justice V.

Christie Heard on November 1, 2017 Reasons for Judgment released on November 22, 2017 Stacy Haner.......................................................................................... counsel for the Crown Brad Allison................................................ counsel for the defendant Delores Trudeau CHRISTIE J.: [ 1 ] On November 1, 2017, Delores Trudeau pleaded not guilty to one count of assault. [ 2 ] The count reads as follows: Delores Jean Trudeau on or about the 6th day of May, 2016 at the Village of Wikwemikong in the said region did commit an assault on Anna Marie Peltier contrary to

Section 266 of the Criminal Code . [ 3 ] The Crown elected to proceed summarily on January 4, 2017. FACTS [ 4 ] There were three witnesses called by the Crown: Anna Marie Peltier, Constable Jewel Peltier and Constable Chris King. There was one witness called by the defence: Galen Trudeau. Anna Marie Peltier [ 5 ] At the time of testifying, Ms. Peltier was 23 years of age and lived in Wikwemikong. She has two children with Kevin McGregor. Her youngest daughter was 4 years old at the time she was testifying and her older daughter was 5 years old. Ms. Peltier testified that she had been separated from Kevin McGregor since 2014.

[ 6 ] The accused, before the Court, Delores Trudeau, is Kevin McGregor’s mother, and therefore, the grandmother of Ms. Peltier and Mr. McGregor’s children. [ 7 ] On May 6, 2016, Mr. McGregor was residing with his mother, the accused, Delores Trudeau. Other people resided there as well, including Eric, Arianna and Fred. I understood that Arianna was Fred’s daughter and Fred was Ms. Trudeau’s partner. [ 8 ] There appeared to be informal arrangements for child access at the relevant time. The children resided with Ms. Peltier, however, Mr.

McGregor would visit with their daughters at the home of his mother, Delores Trudeau. [ 9 ] There seemed to be good relationships between all relevant parties leading up to May 6, 2016. [ 10 ] On May 6, 2016, the youngest daughter, Adeline, wanted to visit over at her grandmother’s house. Ms. Peltier walked her daughter over there at about 2 p.m. in the afternoon. Everything seemed normal at the time the child was dropped off. Ms. Peltier stayed for a half an hour and then left. There were no issues whatsoever. Ms. Peltier returned to her own home.

Adeline stayed at her grandmother’s residence. [ 11 ] Sometime in the evening, Ms. Peltier received a call from her own mother. Her mother told her that she spoke to Ms. Trudeau and that she sounded intoxicated so her mother told Ms. Peltier to go get her youngest daughter. The comments made by Ms. Peltier’s mother were not led for the truth of their content, simply to explain the narrative as to the reason Ms. Peltier returned to Ms. Trudeau’s residence. There were no issues between Ms. Peltier’s mother and Ms. Trudeau. [ 12 ] Ms.

Peltier left her home within 10 minutes and walked over to Delores Trudeau’s house. The walk was about 10 minutes. She did not let anyone know that she was coming. [ 13 ] Ms. Peltier was not using alcohol or drugs that day. [ 14 ] When Ms. Peltier arrived, she knocked on the door and Kevin McGregor answered. Ms. Peltier asked where Adeline was and Mr. McGregor indicated that the child was with his mom upstairs. She did not tell Mr. McGregor why she was there. Ms. Peltier indicated that he looked like he was drinking, that his eyes were bloodshot and he stuttered.

She had seen him under the influence before that day. [ 15 ] Ms. Peltier walked upstairs, into the living room, and saw Ms. Trudeau holding Adeline on her lap, and she testified that the child and Ms. Trudeau were face to face. She explained in cross-examination that Ms. Trudeau had her hands on the child’s back and that she was cradling her granddaughter. Ms. Peltier also testified that Fred was in the room. She added in cross-examination that Mr. McGregor followed her upstairs. [ 16 ] Ms. Peltier testified that she asked Ms. Trudeau if she could hand over her daughter and Ms. Trudeau refused.

She indicated that she asked politely. [ 17 ] Ms. Peltier was asked if her observations of Ms. Trudeau suggested that she was drinking and she said yes, due to the way she was acting, such as how she was sitting with her daughter, and that when she stood up, she staggered when holding the child. Ms. Peltier indicated that she had seen Ms. Trudeau under the influence of alcohol before that day. [ 18 ] When asked about the words Ms. Trudeau used to refuse, Ms. Peltier indicated that she said “no” and “go back to your boyfriend”. Ms. Trudeau continued saying no and Ms.

Peltier continued to ask her to hand over her daughter. [ 19 ] In cross-examination, Ms. Peltier agreed that she told the police during her statement that she told Ms. Trudeau to let go of the child, but she explained that this was after Ms. Trudeau had refused. [ 20 ] Ms. Peltier then testified that Delores Trudeau pushed her, as she continued to hold the child. They were about 2 feet apart at that time. She described that Ms. Trudeau pushed her “like back away”, and as she described this, Ms. Peltier gestured with her right hand. However, Ms. Peltier then indicated that Ms.

Trudeau used her left hand as she was holding her daughter with her right. Ms. Peltier indicated that Ms. Trudeau made contact with her chest, that it was not enough force to push her on the ground, that she was not able to move her and that it did not hurt. [ 21 ] Ms. Peltier indicated that Delores Trudeau stated “back away, let her stay the night”. Ms. Peltier testified that there was no plan for her daughter to stay the night. [ 22 ] In cross-examination, Ms. Peltier agreed that she approached where Delores Trudeau was seated with the child. She also agreed that after Ms.

Trudeau refused to give her the child, she went toward them and tried to take the child out of her grandmother’s grasp and said “give me my daughter”. This seemed different than her evidence in examination-in-chief. Ms. Peltier agreed in cross- examination that as she tried to grab the child, Delores Trudeau pushed her back from doing that. She agreed that it was not that much force, only enough to move her back. [ 23 ] Galen Trudeau, Kevin McGregor’s cousin, came in to the room around that time and took the child from Delores Trudeau. Ms. Peltier stated that she believed that Ms.

Trudeau let the child go and that Ms. Peltier had raised her voice at that time. Ms. Peltier agreed in cross-examination that when the child was transferred from Delores Trudeau to Galen Trudeau, there was no struggle whatsoever. Galen removed the child from confrontation and walked to another part of the house. [ 24 ] As Ms. Peltier was about to get her daughter from Galen, Delores Trudeau attacked her and they both ended up in the kitchen at some point. Ms. Peltier said that it escalated so fast and that the first contact after Galen left the room was that Ms. Trudeau pushed her. Ms.

Peltier did seem to know that Galen had taken the child to the bedroom and saw him walking in that direction. [ 25 ] Ms. Peltier indicated that Ms. Trudeau hit her on her face, which knocked her glasses off, and she could not see well without her

glasses. Ms. Peltier testified that Ms. Trudeau pulled her hair and hit her body. Ms. Peltier stated that she was trying to block the attack and that she hit Ms. Trudeau back in self-defence “as she was tired of having Ms. Trudeau hit her”. Ms. Peltier testified that she was on the floor, on her side, trying to push herself away from Delores Trudeau. Ms. Peltier testified that she was hit, pushed and punched multiple times. Ms. Peltier told Ms. Trudeau to stop and just let her leave. Ms. Peltier indicated that Fred was telling Ms. Trudeau to get off of her and then Kevin McGregor came to split them up. [ 26 ] Ms.

Peltier agreed that during the fight, Delores Trudeau was telling her to get out of the house and that she did not want to leave until she got her daughter. A few times during her testimony, she indicated that she just wanted to get her daughter and leave. [ 27 ] During this time, Adeline was still in the house, however, Ms. Peltier could not see her at that time. [ 28 ] Ms. Peltier stated that as soon as the fight was broken up, she went and looked in Arianna’s room. Adeline was on the bed. As she went to the bedroom, Kevin McGregor pushed her from behind when she was still standing near the doorway.

She used the bed to catch herself so as not to fall. Mr. McGregor told her to get out of the house multiple times, but Ms. Peltier indicated that she would not leave until she got her daughter. [ 29 ] After being pushed at the bedroom door, she got up and Mr. McGregor pushed her back into the hallway. Delores Trudeau was then coming in her direction, however, Arianna pushed Ms. Trudeau toward the closet, so Ms. Peltier had time to get away. Ms. Peltier agreed in cross-examination that Kevin McGregor was trying to push her toward an exit. [ 30 ] Ms.

Peltier testified that Galen was in the bedroom and would have been in a position to see this occurring. [ 31 ] Galen then took the child out of the bedroom and, in fact, took her outside of the house. Ms. Peltier, knowing her daughter was outside, tried to make her way to the exit downstairs. However, Kevin McGregor was following her. Delores Trudeau was coming toward her as well. Fred was saying “why are you doing this, stop it”. Kevin McGregor then held Ms. Peltier against the wall before she could get out the door. Ms. Peltier said “just let me leave”. Kevin McGregor then pushed Ms.

Peltier and she ended up on her hands and knees outside. She was crying and was making her way to the driveway. [ 32 ] Ms. Peltier met Galen outside, and took her daughter. She was having a hard time seeing but she said she saw Kevin McGregor and Delores Trudeau coming toward her. [ 33 ] Ms. Peltier walked with her daughter to the station to report the incident. Her daughter was 2 years old at the time of this incident. [ 34 ] Ms. Peltier described her injuries as bruises and scratches. There were scratches on her arm, and when she went to do her statement, she showed the police the scratches.

She said that there were bruises the next day, a couple little spots on her arms and on her right cheek, not that noticeable, about the size of a jelly bean. Ms. Peltier was asked what caused the scratches and she was not sure if it was from the scuffle in the kitchen or when she was making her way out of the house, as she had a difficult time getting out. She indicated that her knees were also sore. [ 35 ] Ms. Peltier messaged Arianna to get her glasses sometime later, and when she went to go meet her, Arianna told her that she saw some hair from both Ms. Peltier and Ms. Trudeau.

Arianna was not called as a witness and these comments cannot be used for the truth of their content. Ms. Peltier, however, testified that she believed that the hair from Ms. Trudeau was from when Kevin McGregror tried to pull Ms. Trudeau off of Ms. Peltier. She testified that she did not pull Ms. Trudeau’s hair. [ 36 ] According to Ms. Peltier, about 2 months after this incident occurred, Ms. Trudeau told Ms. Peltier that she was sorry on Facebook. [ 37 ] Ms. Peltier identified Ms.

Trudeau in the courtroom, although given the relationship, I assume identity is not much of an issue here. [ 38 ] In cross-examination, Ms. Peltier stated that her goal that day was to get her daughter and head back home. She agreed that what prompted her to go there was that her mother told her that people were intoxicated. However, she agreed that she was really not there to check on her daughter, but rather to simply take her daughter home. Constable Jewel Peltier [ 39 ] Constable Jewel Peltier testified as a member of the Wikwemikong Tribal Police.

She testified that she saw Delores Trudeau shortly after 2:00 am on May 7, 2016 and described her as intoxicated. Ms. Trudeau was cycling on Ojibway street near her residence. When they pulled up next to her, she just looked at them and kept going. Eventually an officer grabbed her bicycle. She was mad and questioned why she was being stopped. [ 40 ] Constable Peltier indicated that her speech was slurred, she was speaking loudly for no apparent reason, and she was swaying back and forth. Constable Chris King [ 41 ] Constable Chris King testified as a member of the Wikwemikong Tribal Police. He indicated that Ms.

Peltier attended at the station at 2118 and she was visibly upset and crying. There was no reason to believe that she was intoxicated. He observed a scratch on her right wrist but did not observe any other injuries. She did not mention any other injuries at that time.

Galen Trudeau [ 42 ] Galen Trudeau testified as a witness for the defence. When asked if he knew what the hearing was about, he indicated “not really”. When asked if he remembered the incident, he said it was “blurry”. [ 43 ] He indicated that he had grown up with “the boys” – presumably Delores Trudeau’s boys. [ 44 ] He did recall being at Delores Trudeau’s home on the day in question. He remembered Kevin McGregor being there and Anna Marie Peltier being there. [ 45 ] When asked about that day, it was clear that he did not want to be involved and tried to separate himself from the events.

He stated that he tried to remove himself from someone else’s problems and that he has his own problems. [ 46 ] He did recall giving the child to Ms. Peltier outside the residence. [ 47 ] He testified that he had trouble remembering stuff. [ 48 ] When asked whether he saw a scuffle, he said no. When asked who was arguing, he indicated that it was hard to tell and that everyone was yelling and blaming each other. [ 49 ] Mr. Trudeau stated that he tried to avoid the whole situation. [ 50 ] He admitted that he was drinking that day with Kevin McGregor and Delores Trudeau and that he does have a drinking problem.

Position of the Parties Defence [ 51 ] The defence submitted that the confrontation began with the complainant acting as a “mom on a mission with a purpose”. She had received information that Delores Trudeau was intoxicated. She had delivered her child to their care earlier that day, and based on the information received, Ms. Peltier made her way to the residence. [ 52 ] The defence submitted that what unfolded when Ms. Peltier arrived was played out in the course of her concerns for her daughter.

It was submitted that the complainant did not embark on any investigation of whether people were intoxicated, but rather she was there to collect her daughter. She went upstairs to find grandmother and child and that was the context in which the confrontation began. [ 53 ] The defence submitted that Ms. Peltier claimed in examination-in-chief that she asked for her child, however, in her statement to the police, she said that she told her to give her the child. It is clear that Ms. Trudeau declined and the standoff began.

The defence claimed that the key piece of evidence is that while the grandmother was still seated, she told the complainant to go home and that it put the mother in a difficult spot when the grandmother said no. [ 54 ] According to the defence, Ms. Peltier had been asked to leave a private residence, but for Ms. Peltier, leaving was not an option unless she had her child. The defence submitted that the court must weigh and assess the observations and perspectives of Ms. Trudeau. Ms. Peltier tried to grab the child from the grandmother and the grandmother pushed back.

The “better head of reason”, according to the defence, was a third party, Galen Trudeau, who removed the child from the room. [ 55 ] The defence submitted that Ms. Peltier was effectively a trespasser, that she was under direction to leave, and she refused to do so. A struggle then ensued in the kitchen area between Ms. Peltier and Ms. Trudeau. The defence submitted that this was not a one- sided attack, as both were engaged in physical confrontation. The complainant eventually freed herself from the scuffle. The defence then submitted that the remainder of the physical confrontation was between Ms.

Peltier and Mr. McGregor (who effectively took on the role of bouncer), who was trying to get Ms. Peltier out of the house and eventually, literally, pushed her out the door, which caused the injuries to Ms. Peltier. [ 56 ] The defence further submitted that Galen Trudeau, again being the “head of sense and reason”, took the child from the bedroom to the outside to diffuse the situation which seems to have worked. [ 57 ] The position of the defence is that the complainant is the initiator, who approached Ms. Trudeau and made demands, which led to the grandmother pushing her back.

The manner was restrained and the push was not excessive. The defence questioned whether the mother’s actions were reasonable to recover her child, however, also questioned her right to be there and act in such a manner, given that she had delivered the child. [ 58 ] As to whether Ms. Trudeau and Mr. McGregor were intoxicated, the defence submitted that this court must weigh the observations. The police officer’s observations of Ms. Trudeau nearly 5 hours later may not amount to any corroboration on this point. [ 59 ] The defence pointed out that critical witnesses were not called, such as Fred or Kevin McGregor.

The witness called by the defence, Galen Trudeau, was not able to corroborate any physical force. [ 60 ] The defence argued that both sections 34 and 35 of the Criminal Code are applicable in this case, in the sense that the accused was protecting herself and her peaceable enjoyment of her property, in her own living room. Ms. Peltier was asked to leave and she did

not leave. The defence argued, in the alternative, that this was a consensual fight. Crown [61] The Crown conceded that if Ms. Trudeau was trying to remove Ms. Peltier from her home, she would be allowed to usereasonable force to do so. However, the Crown submitted that this was not the evidence in this case. [62] The Crown submitted that this attack only ended because two other people pulled Ms. Trudeau off of Ms. Peltier. According tothe Crown, there was no basis to suggest that Ms. Peltier “squared off” with Ms. Trudeau. [63] With respect to the intoxication, Ms.

Peltier gave evidence as to why she believed Ms. Trudeau was under the influence ofalcohol and that even in Galen’s effort to not see anything, he confirmed that they were all drinking. [64] The Crown further submitted that Galen’s lack of corroboration of the physical confrontation is not problematic for the Crown’scase, as he is deliberately trying to stay out of this and not be involved. [65] Finally, the Crown pointed to the complainant’s demeanour when she testified and how she appeared to be very hurt by theactions of Delores Trudeau that day.

The Crown pointed to both her demeanour in the courtroom as well as her described demeanour atthe police station. Analysis [66] The burden of proof beyond a reasonable doubt remains on the Crown. The Crown must prove beyond a reasonable doubt thatMs. Trudeau, without the consent of Ms. Peltier, applied force intentionally to Ms. Peltier, directly or indirectly. [67] In deciding the facts of this case, the Court must assess the credibility and reliability of the witnesses who testified.

In doing so,the Court must consider all of the evidence and then decide whether to believe all, some, or none of any particular witnesses’ testimony. I have considered the totality of the evidence and whether the evidence seems reasonable and consistent. [68] In R. v. K.B., [2015] O.J. No. 2833, Justice Hill considered whether W.D. still must be considered in cases where the accuseddid not testify.

He stated as follows: [28] Where "credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility andthe Crown's ultimate burden to prove the guilt of the accused to the criminal standard": R. v. J.H.S., 2008 SCC 30 , [2008] 2S.C.R. 152, at para. 8. What has come to be known as a W.(D.) direction, or its functional equivalent, relating the standard of proof towitness credibility fulfils this obligation. In R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, at pp. 757-58, the court stated: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question of credibility along these lines: 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. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.

Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [29] While rigid adherence to the W.D. formula is unnecessary (R. v. S.W.D., (SCC), [1994] 3 S.C.R. 521, at p. 533; R.v. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5, at para. 7), and particularly so in reasons for judgment in a judge-alone trial, it isnevertheless essential that "the substance of the W.(D.) instruction be respected" in a trial court's reasons: Dinardo, at para. 23.

In otherwords, it is generally considered critical that the record demonstrate an appreciation for and a proper application of the criminal standardof proof to the whole of the evidence: R. v. J.M.M., 2012 NSCA 70, at para. 72, leave to appeal refused [2012] S.C.C.A. No. 402. So, forexample, in applying the principle of reasonable doubt to credibility assessment, a trial court must recognize that because "there is adistinction between a finding of credibility and proof beyond a reasonable doubt", "a reasonable doubt can survive a finding that thecomplainant is credible" (R. v.

J.W., 2014 ONCA 322, at para. 26) and a trial court must recognize that the W.(D.) analysis does apply incriminal trials where the accused does not testify. [30] Without an accused testifying, evidence favourable to the defence may be grounded in evidence called by the defence or throughthe testimony of prosecution witnesses. Such evidence may engage the trier of fact in important credibility determinations respectingcontradictory evidence. At paras. 37 and 39 of R. v. Smits, 2012 ONCA 524, the court stated: There is now no doubt that in light of this court's decision in R. v.

D.(B.), 2011 ONCA 51 , at para. 114, that, even if an accuseddoes not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arisingout of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to thosecredibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the

evidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflictingevidence leaves the trier of fact in a state of reasonable doubt as to the accused's guilt. In that event, the trier of fact must acquit. ... Trial judges in a judge alone trial do not need to adhere slavishly to the W.(D.) formula.

It should, however, be clear from an examinationof the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction: see R. v.Minuskin (2000), (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 22. [31] Accordingly, the W.(D.) instruction, or its functional equivalent has application "to other exculpatory evidence that emerges duringtrial proceedings: R. v. B.D., 2011 ONCA 51...at paras. 113-114" and a trier of fact need not accept the evidence favourable to thedefence in order to acquit if it is found capable of raising a reasonable doubt: R. v.

Cyr, 2012 ONCA 919, at paras. 50, 58; R. v. Burnie,2013 ONCA 112, at paras. 47-48; R. v. King, 2013 ONCA 417, at paras. 13-14; R. v. Dayes, 2013 ONCA 614, at paras. 51, 55-59;J.M.M., at para. 74; R. v. Grant, 2013 MBCA 95, at paras. 31-32, affd 2015 SCC 9; R. v. B.D. 2011 ONCA 51, at paras. 105, 113-114. [69] The defence called one witness, Galen Trudeau. If I believe the evidence of Galen Trudeau that he saw no scuffle, assuming Ifind that he was in the position to see a scuffle, I obviously must acquit.

However, even if I do not believe the evidence of GalenTrudeau, but it leaves me with a reasonable doubt about whether in fact a scuffle even took place, I must acquit. [70] In my view, the evidence of Galen Trudeau is suspect. It was clear from his testimony that he did not wish to be involved in thismatter in any way. Clearly, some altercation took place, however, Galen Trudeau saw nothing. He does admit to using alcohol that daywhich might also affect the reliability of his memory. [71] In my view, his evidence was not credible or reliable.

Based on the entirety of the evidence, I find that a physical altercation didoccur. I found that his inability, or at least difficulty, to remember events was not genuine and was an excuse to avoid answeringquestions and an attempt to not involve himself.

Obviously, his admitted alcohol use may have affected his memory of events, however,given his ability to care for a 2 year old child at that time, I find that his level of intoxication may not have been that extreme. [72] Galen Trudeau’s evidence does not leave this Court with a reasonable doubt. [73] Further, there is absolutely no reason to disbelieve the evidence of the two officers who testified. Their credibility andreliability, for the most part, went unchallenged. However their evidence is limited as to the assistance it gives to this court.

Forexample, I agree with the defence that seeing Delores Trudeau in an intoxicated state several hours after these events is of no realassistance to this court. [74] With respect to Anna Marie Peltier, after considering her evidence in its entirety and in the context of the rest of the evidence inthis case, the Court has some concerns about her accounting of the events. For example, Ms. Peltier likely tried to describe her initialbehavior toward Ms. Trudeau in a more favourable light when she testified. Ms. Peltier appeared to give somewhat different versions ofthis initial encounter when she spoke to the police.

Further, it would appear that Ms. Peltier described her injuries as being differentfrom what the police officers, specifically, Constable Chris King, viewed on that day when she provided her police statement. [75] Having said that, however, the Court may accept all, some, or none of a witness’ evidence. The Court finds that Ms. Peltier wascredible and reliable on critical aspects of her testimony. The Court does accept that when Galen Trudeau removed the child fromDelores Trudeau that Ms. Peltier was preparing to get her child and leave. However, it was at this point, that Ms. Trudeau attacked Ms.Peltier. Ms.

Peltier admitted that she did fight back, however, this was all in an effort to get away from Ms. Trudeau, to get her daughter,and to leave the residence. Failure to Call Witnesses [76] The defence argued that the Crown failed to call key witnesses. I assumed from this submission that the defence was eitherasking the Court to conclude that the Crown had not met its burden by failing to call key witnesses and / or was asking this Court to drawan adverse inference that the witness’ testimony would have been favourable to the defence. [77] In R. v.

Jolivet, 2000 SCC 29 , [2000] 1 S.C.R. 751, the Supreme Court of Canada held that where the Crown tells thejury in an opening and during the trial that a particular witness will be called, but fails to call the witness, the defence is entitled tosuggest to the jury that the failure to call the evidence leaves a hole in the Crown’s case.

However, the defence is not entitled to suggest,that an adverse inference should be drawn that the witness' testimony would have been favourable to the defence. [78] The failure of the Crown to call key witnesses may, therefore, result in an inability to prove the case beyond a reasonabledoubt. The Court will assess this when considering the totality of the evidence and deciding whether the Crown has met its burden. However, the Court should not speculate about what that evidence would have been and in whose favour. [79] I am satisfied beyond a reasonable doubt, based on the evidence called, that Ms.

Trudeau, without the consent of Ms. Peltier,applied force intentionally to Ms. Peltier, directly or indirectly. Consensual Fight [80] As part of its submissions, the defence suggested that this altercation may be viewed as a consensual fight. [81] Based on the factual findings above, there is no evidence in this case to suggest the fight was consensual. Ms. Peltier’s evidence

was that she was attacked as she was trying to get to her daughter. The fight that then ensues amounts to Ms. Trudeau attacking Ms.Peltier and Ms. Peltier trying to get away. I find on the facts of this case that this is absolutely not a consent fight. Self-Defence / Defence of Property Air of Reality [82] In order for the defence of self-defence or defence of property to be considered by the court, there must be an “air of reality” tothe defence. [83] Recently, in the case of R. v. Phillips, 2017 ONCA 752 , [2017] O.J. No. 5022 (C.A.), the Ontario Court of Appealdiscussed the air of reality test.

The court stated: [145] The air of reality test enunciated in Cinous was succinctly summarized by this court in Grant, at para. 58: In Cinous, McLachlin C.J.C. and Bastarache J., writing jointly, elaborated on how the air of reality test should be applied. • The trial judge should consider all the evidence but assume the evidence relied on by the accused is true. The trial judge should notmake findings of credibility. • The air of reality test applies to each element of a defence.

As long as each element is supported by some direct evidence, or maybe inferred from circumstantial evidence, the trial judge must put the defence to the jury. • The trial judge should not decide the substantive merit of the defence, or even whether the defence is likely or not likely tosucceed. Whether the defence has merit is for the jury to decide. The trial judge should simply determine whether there is a "real issue"that should be left for the jury. • If the defence has an objective reasonableness component -- as self-defence does -- that component cannot be established by directevidence.

The trial judge must decide whether it can reasonably be inferred from circumstantial evidence; that is, evidence from whichthe fact in issue can be inferred. • To assess whether circumstantial evidence is reasonably capable of supporting the inferences the accused wants the jury to draw,the trial judge is entitled to engage in a "limited weighing" of the evidence. [84] In determining whether an air of reality exists, the Court must consider the totality of the evidence and assume the evidencerelied on by the accused to be true.

The question for the trial judge is whether the evidence discloses a real issue to be decided by thetrier of fact and not how the trier of fact should ultimately decide the issue: R. v. Cinous, 2002 SCC 29 at para. 54. The air of reality testis not a high burden. The Court must determine if there is some evidence upon which a reasonably instructed jury could find that self-defence applies: R. v. Elliott, [2016] O.J. No. 3227 (Ont. C.J.) at para. 62. [85] I must admit that on the basis of the evidence put forward in this case, I am a bit doubtful as to whether an air of reality has beendemonstrated.

However, given the low threshold to be established, I will consider self-defence and defence of property in this case. [86] If there is an air of reality to the defence of self-defence, the Crown bears the onus of disproving any form of self-defence ordefence of property beyond a reasonable doubt. The Crown’s onus of disproving self-defence applies to each definitional element of thedefence and the onus is not discharged if the judge has a reasonable doubt concerning the presence of each element.

However, once theCrown proves beyond a reasonable doubt that at least one definitional element is absent, the defence is then unavailable to the accused. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions do not apply. Self Defence [87] With respect to self-defence in section 34(1) of the Criminal Code, the preconditions are as follows: 1. Did the accused believe on reasonable grounds that force or a threat of force was being used against her or another person?; 2.

Was the act that constitutes the offence committed for the purpose of defending or protecting the accused or another person from theuse or threat of force?; 3. Was the act committed reasonable in the circumstances? [88] In determining whether the act committed is reasonable in the circumstances, the court shall consider a number of factors,including but not limited to those set out in section 34(2).

The items listed in s. 34(2) are but factors to be considered in determiningwhether the Crown has proven beyond a reasonable doubt that the accused did not act “reasonably”, an essential element prescribed in s.34(1)(c), in using force against the person who used force or threatened to use force against the accused. [89] It is clear that Ms. Peltier did not want to leave the house until she had her daughter. However, after Galen Trudeau takes thechild from Ms. Trudeau, Ms. Peltier is no longer interested in engaging with Ms. Trudeau in any way. She simply wanted to take herchild and leave. [90] As Ms.

Peltier is about to go get her daughter from Galen Trudeau, it is at this point that Ms. Peltier is attacked by Ms.Trudeau. There is no suggestion at this point that Ms. Peltier was the aggressor or that any attack by Ms. Peltier was imminent. As the

attack by Ms. Trudeau is occurring, Ms. Peltier is attempting to get away from Ms. Trudeau, to get her daughter and to leave the residence. There is no evidence that Ms. Peltier threatened Ms. Trudeau in any way. [ 91 ] I am satisfied beyond a reasonable doubt as follows:

(1) That Ms. Trudeau did not believe, on reasonable grounds, in the circumstances as she knew or believed them to be, that force was being used or threated against her or another person and, therefore, Ms. Trudeau was not acting in lawful self defence;

(2) That Ms. Trudeau did not act for the purpose of defending or protecting herself or another person from Ms. Peltier’s use or threatened use of force, and, therefore, was not acting in lawful self defence; and

(3) That Ms. Trudeau’s conduct was not reasonable in the circumstances as Ms. Trudeau knew or believed them to be, and, therefore, was not acting in lawful self defence. Defence of Property [ 92 ] With respect to defence of property,

section 35 of the Criminal Code reads as follows: 35(1) A person is not guilty of an offence if

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

d) the act committed is reasonable in the circumstances. [ 93 ] Certainly the Crown has not disproved section 35(1)(a). This is Ms. Trudeau’s home. Further, I have a reasonable doubt about whether Ms. Trudeau believed on reasonable grounds that Ms. Peltier entered the property without being entitled by law to do so, pursuant to s. 35(1)(b)(i). [ 94 ] However, Ms. Peltier was clearly not unwelcome in the home, at least initially. Only several hours earlier, she had dropped her daughter off at the home. At that time, everything was fine. When she returned, Mr. McGregor easily allowed Ms. Peltier into the home. Ms.

Peltier and Ms. Trudeau had some words about the return of the child, at which point Ms. Trudeau pushed Ms. Peltier away. However, this is not the assault at issue. [ 95 ] As stated earlier, as Ms. Peltier is about to go get her daughter from Galen Trudeau, it is at this point that Ms. Peltier is attacked by Ms. Trudeau. Ms. Peltier repeatedly testified that she simply wanted to get her daughter and leave. She was trying to do just that when she was attacked by Ms. Trudeau. Surely, Ms. Peltier must be given a reasonable opportunity to leave the property before Ms. Trudeau is justified in laying her hands on Ms.

Peltier to remove her. [ 96 ] I find that under section 35(1)(c), the Crown has proven beyond a reasonable doubt that the act was not committed for the purpose of removing Ms. Peltier from the property, as that was precisely what Ms. Peltier was trying to do on her own. Further, I find that the Crown has proven beyond a reasonable doubt that the act was not reasonable in the circumstances. [ 97 ] For these reasons, the defences of self-defence and defence of property must fail.

Conclusion [ 98 ] Even though only certain facts have been referenced, all evidence has been considered in reaching this conclusion. [ 99 ] On the basis of all of the evidence, I am convinced beyond a reasonable doubt that Ms. Trudeau intentionally applied direct force to Ms. Peltier without Ms. Peltier’s consent. [ 100 ] Further, having considered the applicability of self-defence and defence of property on the facts of this case, I am convinced beyond a reasonable doubt that at least some of the preconditions of those defences do not apply. [ 101 ] I find Ms. Trudeau guilty of the charge of assault.

Released: November 22, 2017 Signed: Justice V. Christie