2022 QCCQ 9449, 2022 QCCQ 9449

R. c. Diszhazy 2022 QCCQ 9449 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Criminal division » No: 500-01-198579-192 DATE: November 1 st , 2022 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. GEORGE DISZHAZY Accused ______________________________________________________________________ REASONS FOR JUDGMENT [1] ______________________________________________________________________ I. OVERVIEW [ 1 ] Mr.

George Diszazhy (“the accused”) is charged with aggravated assault on his now deceased spouse, Mrs. Veronika Diszazhy. [2] The charge arises from an incident that took place on December 29 th , 2019. [ 2 ] On that day, pursuant to a 911 call made by the accused, police officers attended his home. Upon their arrival, they observed his spouse, Mrs. Diszhazy, lying on the kitchen floor in a pool of blood. She had visible injuries on her face. [ 3 ] According to the police officers present at the scene, Mrs. Dizhazy stated that she was hit by the accused.

Contemporaneously, the accused allegedly made the following statement in reference to his spouse: “Take care of her, I love her, but I hit her”. The police officers placed him under arrest and took him into custody. [ 4 ] Mrs. Diszazhy uttered another brief statement to a police officer who arrived on the scene to provide further assistance. She was taken to the Lakeshore hospital not long after. There, she made yet another verbal statement to a police officer who took it down in writing. Both statements also incriminate the accused. [ 5 ] Mrs.

Diszhazy remained hospitalized until she passed away on January 25 th , 2020. The cause of death was unrelated to the injuries sustained on December 29 th , 2019. Rather, it was linked to a severe pre-existing case of hepatitis. [ 6 ] It is not disputed that Mrs. Diszhazy was diagnosed with multiple facial fractures at the Lakeshore Hospital on December 29 th , 2019. What is at issue here is whether Mrs.

Diszhazy’s injuries were caused by the accused striking her in the face, as submitted by the Crown, or by an accidental fall while heavily intoxicated, as claimed by the accused in his testimony. [ 7 ] Clearly, there are conflicting accounts of the events. The assessment of the witnesses’ credibility and reliability is therefore key to determine whether the Crown established beyond reasonable doubt that the accused committed an aggravated assault on his spouse. [ 8 ] I will first provide a synopsis of the evidence tendered at trial.

I will then briefly discuss applicable legal principles and finally undertake a credibility and reliability assessment. II. THE EVIDENCE [ 9 ] The synopsis of the evidence is not intended to highlight contradictions or inconsistencies in the testimony of the witnesses. It is merely an attempt to summarize what emerged from the evidence heard as objectively as possible. Crown’s evidence [ 10 ] I note that the Crown’s witnesses testified in the context of a blended voir dire held to determine the admissibility of a statement made by the accused as well as various hearsay statements made by Mrs.

Diszhazy to the police. [3] [ 11 ] The parties agreed that the evidence heard during the voir dire would apply to the trial proper. Obviously, I will only refer to the statements or segments of the statements ruled admissible for the truth of their contents.

[ 12 ] Four police officers testified on behalf of the Crown. Their respective testimony can be summarized as follows. - Officer Jackson [ 13 ] December 29 th , 2019 was Officer Jackson’s very first day on the job. She was on patrol with Officer Rochefort when they were dispatched to a specific address to respond to a 911 call. [ 14 ] When they arrived on location, the accused opened the door of his apartment and motioned them to join him inside. He stated: “come, come”.

Once inside, near the front entrance, the accused started talking about his spouse and mentioned that she needed help. [ 15 ] They then all headed to the kitchen. There, Officer Jackson saw a woman lying on the ground in a pool of blood. She was immobile, appeared almost dead and had visible injuries on her face near her eye. The woman in question was Mrs. Diszhazy. [ 16 ] As for her observations of the premises, Officer Jackson noted that there was a bottle of vodka in the living room area adjacent to the kitchen. [ 17 ] According to Officer Jackson, Mrs.

Diszhazy was in the same physical state as on the photograph tendered into evidence [4] . The photograph depicts Mrs. Diszhazy’s upper body lying on the ground with blood on her face and in the immediate vicinity. [ 18 ] Officer Jackson was tasked with handling the accused while Officer Rochefort attended to Mrs. Diszhazy. As Officer Jackson walked by Mrs. Diszhazy, she heard her say: “he hit me, but don’t take him”. She was less than five meters away from her at the time of the statement. [ 19 ] Officer Jackson asked the accused to exit the kitchen. He appeared reluctant to do so.

He kept on saying: “help her, help her”. As Officer Jackson attempted to lead the accused to the living room, he admitted having hit his spouse and reiterated that she needed help. The accused was crying and in a state of panic. According to Officer Jackson, the accused made this statement within a short delay of their arrival on the premises. [ 20 ] It should be noted that during her testimony, Officer Jackson could no longer remember the exact words uttered by the accused as he was being escorted to the living room.

However, she indicated that the exact words were recorded in the police report drafted in the aftermath of the events. Upon taking cognizance of the report to refresh her memory, Officer Jackson confirmed that the accused stated the following: “Take care of her, I love her, but I hit her”. [ 21 ] Shortly after making this statement, the accused was placed under arrest by Officer Rochefort. The accused became aggressive. He refused to put his boots on because he did not want to leave. He wanted to stay with his wife. The officers had to resort to force to take him to the police cruiser without his boots on.

Officer Jackson carried them to the detention center. - Officer Rochefort [ 22 ] For the most part, Officer Rochefort’s testimony is along the same lines as that of Officer Jackson. However, as will be seen next, Officer Rochefort provided supplemental details. [ 23 ] According to Officer Rochefort, the 911 call was placed by the accused. When they arrived at his dwelling, he was waiting for them at the entrance with the front door half open. He made a sign to them with his hand and said “come, come”. When they entered the premises, the accused pointed to Mrs.

Diszazhy who was lying on the kitchen floor in a pool of blood near the corridor. The officers and the accused made their way to the kitchen. [ 24 ] Officer Rochefort approached Mrs. Diszazhy, kneeled on the ground, touched her shoulder and asked her in English if she was breathing well and what happened for her to be on the ground. Mrs. Diszhazy opened her eyes slightly and clearly replied with an accent: “He hit my nose, but don’t take him”. [ 25 ] Officer Rochefort observed that Mrs. Diszazhy had a black eye on her left side, her nose was purple and appeared to be broken.

She also detected a smell of alcohol from her breath. Officers Vary and Bertholot, along with Sergeant Mustapha, arrived on site to provide assistance. They immediately called the paramedics. [ 26 ] While Officers Vary and Bertholot looked after Mrs. Diszazhy, Officer Rochefort went to see the accused who, by then, was with Officer Jackson in the kitchen. The accused made the following unsolicited statement: “Take care of her, I love her, but I hit her”. He looked worried. At 7:18 pm, Officer Rochefort placed him under arrest for assault.

She cautioned him and advised him of his rights. [ 27 ] The accused was then handcuffed. He became agitated and refused to put his winter boots on. Officer Rochefort noted that the accused was unsteady on his feet and had a strong smell of alcohol emanating from his breath. She also noticed that there was an empty bottle of vodka on the kitchen counter. Officer Rochefort then walked the accused, shoeless, to the police cruiser. He was transported to the West Operational Center to be handed over to investigators. [ 28 ] Officer Rochefort was unable to recall who took the photograph of Mrs.

Diszhazy tendered into evidence [5] , but indicated that it was taken before the arrival of the paramedics. She later showed this photograph to the investigators in charge of the file to explain to them why she could not take a written statement from Mrs. Diszhazy. Officer Rochefort testified that no photographs of the vodka bottle were taken.

She also mentioned that crime scene technicians were never called on site. - Officer Moogk [ 29 ] Officer Moogk was on patrol on the evening of December 29 th , 2019 when he heard on the radio waves that two police cruisers were responding to a 911 call for domestic violence.

[ 30 ] Officer Moogk decided to drive to the address given to the 911 operator. When he arrived, he noticed that two police cruisers were already at the scene. He entered the accused’s residence and saw a woman – Mrs. Diszhazy – lying sideways on the ground in a pool of blood. Her eyes were shut. There was already an officer looking after her. [ 31 ] Officer Moogk joined in and crouched down close to Mrs. Diszhazy – approximately a meter away from her. He observed that her face was bloodied and swollen. She looked severely injured. He first asked her in English how she was doing. She did not respond.

He then asked her what happened. She started speaking to him. She told him with a weak tone of voice that the accused struck her with an open hand – his right hand – on the nose and left eye area. [ 32 ] Mrs. Diszhazy also stated that her husband had consumed large amounts of alcohol. Officer Moogk was unsure whether Mrs. Diszhazy volunteered this information or offered a reply to a specific question. Because Mrs. Diszhazy was in obvious pain, Officer Moogk refrained from asking her further questions.

He stayed by her side for approximately 15 - 20 minutes, until the paramedics took her to the hospital. - Officer Diktakis [ 33 ] On December 29 th , 2019, Officer Diktakis was asked by his superior to go to the Lakeshore Hospital to take a statement from Mrs. Diszhazy. He arrived at the hospital at 10:35 pm. Mrs. Diszhazy was on her hospital bed. She was unable to write a statement herself, but felt at ease to describe what happened earlier in the evening. [ 34 ] Officer Diktakis wrote the statement for her. He put down on paper word for word the questions asked by himself and the answers provided by Mrs.

Diszhazy. She then signed the statement. She was able to articulate properly throughout. The parts of the statement ruled admissible are as follows [6] : ➢ “My husband hit me and I fell to the ground. This occurred today at 7:00 pm. He was drunk and when he saw I was bleeding a lot he called 911”. ➢ “He slapped me in the face on the left side of my face”. ➢ “No (I did not lose consciousness), but I was bleeding a lot from the nose and fell to the ground”. [ 35 ] During cross-examination, Officer Diktakis confirmed that he did not speak to the doctor in charge of Mrs. Diszhazy prior to taking her statement.

He had no information, from a medical standpoint, about her state of mind before interacting with her. - The Coroner’s investigative report [ 36 ] Crown counsel also filed into evidence the Coroner’s report concerning the death of Mrs. Diszhazy. [7] [ 37 ] Despite being hearsay evidence, the parties agreed that the report was tendered into evidence for its truth. Defence counsel wished to highlight that Mrs.

Diszhazy was a known alcoholic, that she suffered from a liver disease and that she passed away on January 25 th , 2020 due to a gastrointestinal hemorrhage caused by a severe and ongoing case of hepatitis. [ 38 ] The report contains an indication of Mrs. Diszhazy’s ethanol level in her blood as recorded in the immediate aftermath of the events.

However, Defence counsel rightly conceded that, absent expert evidence, I am not entitled to infer that the recorded ethanol level is significantly high and therefore corresponds to a severe degree of intoxication. [ 39 ] Finally, the report also confirms that a diagnostic imaging examination conducted on December 29 th , 2019 revealed the presence of a small left front-temporal subdural haematoma as well as left orbital floor fractures. This is not disputed. [ 40 ] Of relevance, the Coroner concluded that the trauma incurred by Mrs.

Diszhazy on December 29 th , 2019 was not severe and did not alter her state of consciousness or her general neurological state. The Coroner further indicated that x-rays taken on January 9 th , 2020 revealed that the subdural haematoma had resolved itself. Defence evidence [ 41 ] Only the accused testified in defence. His testimony essentially conveyed the following. [ 42 ] The accused was married to Mrs. Diszhazy since 1965. Towards the end of her life, she was unfortunately struggling with a liver disease. She had to follow a special diet and was not allowed to drink alcohol or any acidic substances.

December 29 th , 2019 was their 54 th wedding anniversary. On that day, the accused prepared breakfast for his spouse, washed her gown and cleaned her bedroom. At the time, they had separate bedrooms. [ 43 ] At around 2 to 3 pm, the accused came up from the basement after doing laundry and noticed that Mrs. Diszhazy was heavily intoxicated. She had been drinking an unspecified amount of alcohol from a bottle of “Absolute Vodka”. The accused was very tired. They agreed to go take a nap. She suggested that they first take a shot of vodka before going to sleep, which they did, in the living room.

It was the accused’s only consumption of alcohol on that day. [ 44 ] The accused then carried his spouse on his shoulders into her bedroom because she had trouble walking. She lied down on the bed and started napping. The accused went to his own bedroom, some 25-30 feet away, to take a nap as well. Approximately 10 minutes later, the phone rang. The accused was barely asleep. He got up, went to the nearby kitchen and picked up the phone. It was his eldest son, George, calling from British Columbia. He wanted to speak to his mother.

The accused told him that she was asleep and that she would call him back once awake.

[ 45 ] All of sudden, Mrs. Diszhazy shouted: “I am coming, I am coming”. The accused could see her bedroom from the kitchen. She had her hands on the bedroom floor while her waist and legs were still on the bed. The accused set the phone aside and went to the bedroom. He helped his spouse back onto the bed. She wanted to get up to speak to her son. The accused told her that she was in no state to walk to the phone, but that she could call George back after her nap. She agreed.

They both went back to sleep in their respective bedroom. [ 46 ] About an hour and half to two hours later, the accused woke up to go the bathroom. When he got out of the bedroom, he saw his spouse lying in the corridor. There was blood around her head and in the kitchen area. He yelled out her name but she did not respond. She had fallen in the past but had never lost consciousness. At first, the accused thought she was dead. He took her pulse and realized she was still alive.

He immediately called 911 to get police assistance and an ambulance to come. [ 47 ] After hanging up with the 911 operator, the accused quickly put on his winter boots and stepped outside his home wearing only a top, his underwear and long johns. He was anxiously waiting for the police and first responders to arrive. Because the police had been slow to intervene in the past, the accused wanted to make sure that they were not going to waste any time once on location. Three to four minutes later, the accused saw a police cruiser drive down the street.

He ran towards the police car, waved at the officers and directed them to his house. [ 48 ] The officers exited their car, placed their hand on their gun and walked slowly towards the accused’s bungalow. The accused shouted “come on, come one” to rush them inside. He displayed his hands to show them that he was not carrying a weapon. Officer Rochefort came in first, followed by Officer Jackson. The accused spontaneously stated to Officer Rochefort: “I don’t know what happened, I didn’t hit her, I love her, please take care of her”.

Officer Rochefort had not seen his spouse yet. [ 49 ] The accused removed his boots and informed Officer Rochefort as to the whereabouts of his spouse. She was then 8-11 feet away from the officer. Officer Rochefort requested that the accused stay with Officer Jackson near the front entrance while she attended to Ms. Diszhazy. The accused remained with Officer Jackson within three feet of the front entrance. Officer Jackson appeared to be fearful and in shock. Officer Rochefort then crouched down near Mrs. Diszhazy for approximately 10 seconds.

Officer Rochefort stood back up, took her handcuffs out and walked towards the accused. [ 50 ] Officer Rochefort handcuffed the accused and told him he was under arrest. She asked him to follow them outside to the police cruiser. He cooperated. At no point during the police intervention did the accused go in the living room. He remained at all times near the front entrance. He was placed under arrest some three to four minutes after the officers first entered his dwelling. [ 51 ] Once outside, Officer Rochefort yelled to the accused: “hey, you are using some drugs”.

The accused, who at the time was shoeless and still wearing only his underwear and long johns, angrily replied: “no fucking way”. He then kicked some snow to the curb and was placed in the police cruiser. He felt bad to leave his wife behind in such a state. Officer Jackson remained with him inside the police car. She was crying at the time. [ 52 ] According to the accused, Mrs. Diszhazy would frequently fall in the few years prior to her death.

He claimed that she fell off her bed back in April of 2019 causing her to sustain a bone fracture under her left eye and a corresponding black eye which was still visible on the day of the events. She again fell off the bed on December 26 th , 2019 and re-injured herself. She was pointing to her left eye and complained that it was hurting again. Her face was still swollen on December 29 th as a result of the December 26 th incident. [ 53 ] The accused tendered two photographs of Mrs. Diszhazy into evidence. The first one dates from 2009 or 2010 [8] when she was 60 years old.

The second photograph is the one on her driver’s licence at the time she passed away. [9] It was taken in 2016. The photographs were filed into evidence to demonstrate the deterioration of Mrs. Diszhazy’s health and appearance over the years. [ 54 ] During his testimony, the accused denied being intoxicated or unsteady on his feet on the day of the events. He was not aggressive towards the police upon arrest. He did not refuse to put his boots on. In fact, he was not even offered to do so. He categorically denied stating that he hit his wife. III.

GOVERNING LEGAL PRINCIPLES The burden of proof and the presumption of innocence [ 55 ] It is trite law that the accused, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. [ 56 ] The Crown bears the burden of proof throughout the entire trial, from beginning to end. The accused does not have to present evidence or prove anything.

Moreover, it is not enough for the Court to believe that he is probably or likely guilty. [ 57 ] Conversely, proof establishing absolute certainty is not required of the Crown, nor may the doubt be imaginary, frivolous or irrational. Such a burden would be nearly impossible to meet. Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. [ 58 ] The Crown need not prove all of the facts in its case beyond a reasonable doubt. The Crown is required only to prove the essential elements of the offence beyond a reasonable doubt.

Assessment of credibility and reliability [ 59 ] I am confronted with conflicting evidence. Clearly, credibility and reliability are at the heart of this case. [ 60 ] Although both concepts are often intertwined to a certain extent, they do remain fundamentally different. Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account. [ 61 ] In my assessment, I may accept all, part or none of a witness’s testimony.

[ 62 ] I must avoid engaging in a “credibility contest”. In other words, a criminal allegation cannot be resolved by simply choosing between conflicting accounts. Doing so would shift the burden of proof to the accused or lower the standard of proof resting with the Crown, both of which are scrupulously prohibited. [ 63 ] Also, mere disbelief of the accused does not equate to guilt.

At most, it simply implies that the defence is completely rejected. [ 64 ] My analysis must then continue by assessing whether, on the evidence that I accept, the Crown has proven guilt beyond a reasonable doubt. [ 65 ] At all stages of my analysis, I must consider the evidence as a whole. The evidence must not to be compartmentalized in watertight partitions or be assessed in a piecemeal fashion. [ 66 ] Thus the accused is not entitled to having his version analyzed in isolation first, with the rest of the evidence being relegated to the subsequent steps of the assessment.

Rather, I must consider all the evidence at each step of the analysis. [ 67 ] Ultimately, I have instructed myself to apply the law with respect to credibility and reliability as set out in the three-prong test for analyzing evidence outlined in R . v. W.(D .) [10] which, in the context of a judge sitting alone, can be transposed as follows : 1. First, if I believe the evidence of the accused, obviously I must acquit him; 2. Second, even if I do not believe the evidence of the accused but I am left in reasonable doubt by it, I must acquit him; 3.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond reasonable doubt of the guilt of the accused. IV. ANALYSIS Assessment of the defence evidence: the testimony of the accused [ 68 ] Upon thorough examination of the evidence, I do not believe that the account of the accused is an accurate rendition of the events which unfolded on December 29 th , 2019. I cannot give credit to his assertion that Mrs. Diszhazy accidentally fell, thereby exacerbating pre-existing injuries caused by prior incidents.

My reasons are as follows. [ 69 ] Recall that the accused categorically denied assaulting his spouse and having made an incriminating statement to the police. He suggested that the police officers misunderstood him. He claimed to have stated “I didn’t hit her” and not “I hit her” as conveyed by both Officer Rochefort and Officer Jackson. [ 70 ] For reasons that will be outlined at a later stage of this judgment, I find the evidence led by the officers on this issue to be compelling. Likewise, I also accept that Mrs. Diszhazy stated to the officers that the accused hit her.

Hence, when viewed in the context of the record as a whole, I generally reject the accused’s exculpatory evidence where it conflicts with evidence of the police officers that I do accept , as was the case in both R . v. R.E.M [11] and R . v. Vuradin . [12] [ 71 ] Based on those two Supreme Court decisions, it is permissible for a trial fact-finder to reject the exculpatory evidence of an accused because of the imposing strength of the Crown case, even if no specific reasons can be articulated for why the accused’s evidence is disbelieved.

Beyond the foregoing, in the case at bar, several aspects of the accused’s version do raise credibility and reliability concerns which further bolster my disbelief of his exculpatory evidence. The following problematic portions of his testimony illustrate this point. [ 72 ] Despite claiming that he only drank one shot of vodka earlier in the day, the accused conceded that it was indeed possible that the police officers detected a smell of alcohol coming from his breath. According to him, the smell of vodka can linger for an extended period of time.

In his testimony, he asserted that he drank a single shot of vodka – the equivalent of 30 ml as he himself stated – between 2 and 3 pm. He was arrested by Officer Rochefort at 7:18 pm. [ 73 ] Granted, no expert evidence was adduced to explain how long the smell of alcohol may linger in one’s breath or if there exists any correlation between the quantity consumed and the strength of the detectable odour of alcohol.

Based on common sense, I find it nonetheless hard to believe that such a small quantity of vodka could have left an easily noticeable and strong smell of alcohol in the accused’s breath as long as four hours after drinking the shot. In my view, the accused sought to minimize his alcohol consumption and degree of intoxication on the day of the events. [ 74 ] On a side note, at the voir dire stage, defence counsel opposed the admissibility of the accused’s statement to the police on the basis that it was not the product of an operating mind, notably because he was severely intoxicated at the time.

I find it therefore paradoxical that the accused claimed at trial not to have been intoxicated on the day of the events. [ 75 ] On a related issue, the accused testified that Mrs. Diszhazy was essentially prohibited from drinking alcohol due to her liver disease. He made it quite clear that alcohol could endanger her life and had contributed to her falling in the past. He further indicated that he often pressured her to stop drinking.

I therefore find it incoherent that the accused accepted to drink a shot of vodka with his spouse before napping, especially given the fact that she already appeared intoxicated and visibly unsteady on her feet. As a reminder, the accused explained that he had to carry her over his shoulders to take her to the bedroom. [ 76 ] It is obvious from the accused’s testimony that Mrs. Diszhazy lacked physical autonomy and totally depended on his support.

On the day of the events, the accused prepared breakfast for her in bed, assisted her with her morning wash, did her laundry, carried her to her bedroom to nap and helped her back to bed when she tried, in vain, to get to the phone. The accused had to grab her head and put his arm under her shoulder to push her back onto the bed.

[ 77 ] Hence, based on the account of the accused, Mrs. Diszhazy could hardly be left unsupervised at the time of the relevant facts. As the accused himself confirmed, she was not able to walk on her own and had fallen off her bed on various prior occasions, including as recently as on December 26 th , three days before. Yet, the accused decided to go nap in a different bedroom, leaving his spouse unattended and in a fragile state.

In such circumstances, it also comes as a surprise that she would have been able to get out of her bed on her own and walk to the kitchen and living room area where the accused allegedly found her on the ground on his way to the bathroom. [ 78 ] On a different note, the accused stated that when he found his wife, she was lying on the ground in the corridor and not on the kitchen floor, as claimed by the police officers. The accused was asked by Crown counsel to draw a sketch of the premises at the time Officer Rochefort was kneeling down next to Mrs.

Diszhazy to verify her state. [13] On the sketch, the accused placed the entire body of Mrs. Diszhazy in the corridor leading to the living room. She is positioned parallel to the walls of the corridor. Her head is near the intersection of the corridor and the living room. [ 79 ] The sketch drawn by the accused is inconsistent with the photograph taken of Mrs. Diszhazy when the police arrived on site. [14] On this photograph, her head is seen to be perpendicular to a carpet which corresponds to the corridor carpet, as acknowledged by the accused.

The rest of her body is in a room with tiles on the floor, also perpendicular to the corridor. The accused testified that there was a pool of blood in the kitchen, which is consistent with the observations made by the police officers. As a result, it can be safely inferred from the evidence that Mrs. Diszhazy was lying on the kitchen floor with her head at the intersection of the kitchen doorframe and the corridor.

The accused’s sketch is therefore misleading, thus undermining the reliability of his account. [ 80 ] In his testimony, the accused claimed that he stayed near the front entrance throughout the police intervention and never went to the living room or to the kitchen for that matter.

Again, this is inconsistent with his own sketch given that he placed himself in the living room at the time Officer Rochefort kneeled close to his spouse. [15] In addition, the accused’s assertion that the blood around his wife’s head was already dry when he first saw her on the ground does not fit with what can be observed on the photograph [16] , that is: a significant amount of blood which appears to be fresh and still dripping. [ 81 ] The accused’s narration of his interaction with the 911 operator and subsequently with the police officers upon their arrival is also source for concern.

The accused asked the operator to send not only an ambulance to his home, but also the police. I find it surprising that the accused specifically requested assistance from the police in the context of an alleged accidental fall. Even more startling, the accused did not even mention to the operator that someone was hurt, let alone his spouse. [ 82 ] Furthermore, the accused testified that upon hanging up with the 911 operator, he immediately stepped outside to anxiously anticipate the arrival of the police or first responders.

He wanted to ensure that they would not waste any time because he was seriously concerned with the well-being of his wife. To him, she was clearly unconscious and barely alive. He rushed the police officers inside his dwelling by saying “come on, come on”. He thought they were slow to act. [ 83 ] Yet, once the officers made their way inside, the accused did not tell them that his spouse was hurt, did not show them where she could be found and did not take them immediately to her. Instead, the accused testified that he made an unsolicited exculpatory statement to the officers.

According to him, the very first thing he told them upon their entrance was: “I don’t know what happened, I didn’t hit her, I love her, please take care of her”. [ 84 ] The fact that the accused would have uttered this statement immediately upon the entrance of the officers is incompatible with the sense of urgency which drove him to rush them inside to take care of his spouse. In light of the accused’s contention that Mrs.

Diszhazy fell accidentally and hurt herself, it also makes little sense to have stated “I don’t know what happened”. [ 85 ] According to his own testimony, the accused did not advise the operator that someone was hurt. On this basis, it can be reasonably inferred that the police officers had no specific knowledge that someone was seriously hurt on location. Rather than properly informing the officers of the situation so as to help them take care of his wife, the accused prioritized the making of an exculpatory statement with no reference to her actual state.

In cross-examination, the accused claimed that he did not tell anyone that someone was hurt because “he didn’t know what happened”. This simply runs afoul of logic and common sense. [ 86 ] The accused testified that upon making this statement, Officer Rochefort asked him where his spouse was and then requested that he remain in the front entrance with Officer Jackson. Why would Officer Rochefort order him to stay in the front entrance after having inquired as to his spouse’s whereabouts? The accused denied pointing his spouse to the police.

There is no indication in his testimony that he offered a reply to the question posed by Officer Rochefort. [ 87 ] In such circumstances, would it not have been be more logical for Officer Rochefort to ask the accused to take them to Mrs. Diszhazy as opposed to requesting that he remain in the front entrance? Would she not have wanted him to show her where she could find his spouse? The accused claimed that Mrs. Diszhazy was clearly visible from where Officer Rochefort was standing in the front entrance.

If such was the case, why would she ask him where she was? [ 88 ] The accused’s claim that he fully cooperated with the police and accepted without protest to follow them to the cruiser once handcuffed is implausible. It should again be emphasized that the accused’s primary concern once the officers came inside his dwelling was to inform them that he had nothing to do with his wife’s injuries. The accused acknowledged that he was agitated at the time and very concerned about leaving his wife. He also admitted having been infuriated by Officer Rochefort’s comments suggesting that he was taking drugs.

He even kicked some snow to the curb while barefoot. This is not the behaviour and state of mind of a person who was fully and calmly cooperating with the police. [ 89 ] The fact that the accused walked to the police cruiser without his boots on is revealing. I very much doubt that the officers did not offer him to put his winter boots before leaving his house. The officers were aware that the accused was an older man in a state of panic, that his spouse had sustained serious injuries and that there was snow outside.

I find it unbelievable that they would not have the courtesy to minimally allow the accused to put his boots on before leaving. If the accused walked outside barefoot, it is in all likelihood because he declined to put them on out of protest, as claimed by the police officers, and not because he was deprived of the option of putting them on. The fact that the officers brought the boots with them to the cruiser goes to show that they cared about his comfort and

well-being. [ 90 ] The accused suggested that the injuries observed by the medical staff at the hospital pre-existed the events which unfolded in the evening of December 29 th . He claimed that his spouse sustained a broken cheek bone under her left eye as result of a fall in April of 2019. He testified that she also had a black eye from this incident which never completely disappeared. He also stated that she fell off her bed again on December 26 th causing her face to swell and to aggravate her prior injuries. [ 91 ] While I do not necessarily dismiss the possibility that Mrs.

Diszhazy sustained facial injuries on earlier occasions, such as a black eye, as a result of accidental falls, I do not accept the accused’s claim that the fractures observed at the Lakeshore Hospital pre-existed the events of December 29 th . This is so for a number of reasons. [ 92 ] First, the accused’s testimony on what transpired back in April of 2019 was very confusing and imprecise. The accused testified that around the same time Mrs. Diszhazy fell of her bed, she began bleeding from the intestine. Although somewhat concomitant, the two occurrences appear to be unrelated.

In other words, her fall did not cause the intestinal bleeding. The accused then mentioned that he took her to hospital. Crown counsel sought to determine when Mrs. Diszhazy was taken to hospital in April of 2019 and whether it was because of the fall or the intestinal bleeding. [ 93 ] The accused struggled to provide a clear answer. He initially mentioned that she started bleeding from the intestine and fell off her bed a week later. He stated that he did not take her to hospital the day she fell, but only later.

He offered contradictory evidence by saying that he took her to hospital the day she fell because she was bleeding from the intestine. In re-examination, defence counsel attempted to clarify the sequence of events. The accused finally stated that he took his wife to hospital on April 21 st because she was bleeding from the intestine, and not because she fell off her bed. The fall would have occurred two to three days prior to April 21 st . [ 94 ] It therefore turns out that Mrs. Diszhazy did not go to the hospital the day she allegedly broke a bone under her left eye.

I find it odd that such a serious injury did not warrant a trip to the hospital. When she did go to the hospital two or three days later, she was treated for an intestinal bleeding and not a bone fracture. As acknowledged by the accused, there is no medical report documenting a bone fracture or a hematoma to the eye sustained in April of 2019 as a result of a fall. In fact, the accused only assumed that she had incurred such injuries. Moreover, he did not provide any details as to how she fell and as to her state in the immediate aftermath of this incident.

I also very much doubt that a black eye allegedly sustained in April of 2019 would still be visible in late December of the same year. [ 95 ] As for the accused’s claim that Mrs. Diszhazy fell of her bed on December 26 th , I do not rule out that it might have been the case. However, the accused was not a witness to this fall and could not describe how Mrs. Diszhazy hit the ground. Although he testified that she complained about feeling pain in her left eye and that her face began to swell, he also indicated that she was able to laugh right after the incident.

The description of what occurred on December 26 th cannot, even if it were true, reasonably account for the extent of her injuries on December 29 th . I would further add that the Coroner’s investigative report makes absolutely no reference to pre-existing facial injuries. [ 96 ] Having reviewed the two photographs of Mrs. Diszhazy tendered into evidence by the accused [17] , even though their resolution is not optimal, it appears that she had dark circles around both eyes in her normal state.

Having said that, the photograph taken in the aftermath of the events [18] clearly demonstrates that her left eye was not in a normal state when the police found her lying in a pool of blood. It is also highly unlikely that her black eye, as appears on said photograph, was a remnant of past incidents. [ 97 ] While far from being pivotal in my assessment of the credibility of the accused, I also factor in his prior convictions. Although the accused was forthcoming about his criminal record, cross-examination disclosed two prior convictions for assault in 2005 and 2010.

Case law [19] recognizes that possessing a criminal record is relevant to the trustworthiness of the witness. While I do not necessarily ascribe a high probative value to the accused’s prior convictions, his record still weighs against a finding of credibility when considered in the context of his testimony as a whole. [ 98 ] V iewed against the backdrop of compelling contradictory evidence from police officers on key points, the cumulative effect of the various flaws noted in the testimony of the accused negatively impact his credibility and, by extension, the reliability of his version.

Indeed, an account which lacks credibility cannot be deemed reliable. As such, I do not accept the exculpatory portions of the accused’s testimony. I do not accept his claim that Mrs. Diszhazy was found in a pool of blood because she fell on her own, nor do I believe that her injuries revealed by the imaging examination existed prior to the events giving rise to the alleged offence. [ 99 ] Now, briefly directing my attention to the second stage of the W.(D .) inquiry, as stated by the Quebec Court of Appeal in A.N. c.

R . , [20] where the defence is total denial such as here, not believing the accused generally leads to the conclusion that the defence has not raised reasonable doubt in the mind of the judge. [ 100 ] Such is the case here. I do not believe his exculpatory account, nor am I left in reasonable doubt by it. [ 101 ] Despite disbelieving the exculpatory account of the accused, I am still required to assess the sufficiency of the remaining evidence in order to determine whether the Crown has established guilt beyond reasonable doubt. I am now at the third step of the W.(D .) inquiry.

Assessment of the remaining evidence: the testimony of the police officers [ 102 ] I have already indicated that I find the evidence led by the police officers to be persuasive. Here is why I come to this conclusion. [ 103 ] The most significant components of the Crown’s evidence consist of the statement made by the accused and the admissible hearsay statements made by Mrs. Diszhazy to the police officers.

[ 104 ] As a reminder, according to Officers Rochefort and Jackson, shortly after their arrival on the premises, the accused stated in reference to his spouse “take care of her, I love her, but I hit her” and Mrs. Diszhazy uttered “he hit my nose, but don’t take him”. [ 105 ] Not long after, as conveyed by Officer Moogk, Mrs. Diszhazy stated that the accused struck her with an open hand – his right hand – on the nose and left eye area and that he had consumed large amounts of alcohol. [ 106 ] Finally, while at the hospital, Officer Diktakis recorded in writing the following admissible utterances made by Mrs.

Diszhazy: [21] Line 9: […] my husband hit me and I fell to the ground. This occurred today at 7:00 pm (December 29 th , 2019). He was drunk and when he saw I was bleeding a lot he called 911. Line 14: He slapped me in the face on the left side of my face.

Line 19: (To the question: “did you lose consciousness?”) No but I was bleeding a lot from the nose and fell to the ground . [ 107 ] As mentioned previously, I ruled those statements admissible into evidence in an earlier judgment [22] [ 108 ] Specifically, I held that the Crown established beyond reasonable doubt that the statement of the accused was made freely and voluntarily. I also concluded that the statement made by Mrs. Diszhazy to Officer Rochefort was admissible under both the traditional spontaneous utterance exception and the principled exception to the hearsay rule.

As for her statement to Officer Moogk, I ruled it was only admissible under the principled exception to the hearsay rule. I reached the same conclusion with respect to the aforementioned utterances made to Officer Diktakis. [ 109 ] Given that the statements are incriminatory, assessing the strength of the Crown’s evidence necessarily entails the following two- fold determination: (1) whether the police officers properly understood and accurately recorded the various statements and (2) if so, whether said statements can be found to be credible and reliable. [ 110 ] I will now discuss both of these issues.

(1) Did the police officers properly understand and accurately recorded the various statements? [ 111 ] In this section, I have to decide what, if anything, the accused and Mrs. Diszhazy said to the police officers. In other words, I must examine whether the recipients reliably reported the various statements referred to previously. As conceded by the parties, the issue here is first and foremost one of reliability rather than credibility. Statements made by the accused and Mrs.

Diszhazy to Officers Jackson and Rochefort [ 112 ] At the outset, it is not disputed that the accused did make a statement to the police. What is at issue is whether he admitted assaulting his wife by saying “I hit her” or whether he offered a denial of the offence by claiming that he didn’t hit her. [ 113 ] I acknowledge that Officer Jackson was not as reliable a witness as Officer Rochefort. For instance, she could not recall from memory the exact words uttered by the accused and did not take personal notes as the intervention unfolded.

At first, she basically only recalled that the accused admitted hitting his spouse. It is only upon taking cognizance of the police report to refresh her memory that she was able to convey the specific words uttered by the accused: “take care of her, I love her, but I hit her”. [ 114 ] Furthermore, Officer Jackson was unsure whether the accused made this statement before or after the first hearsay statement made by Mrs. Diszhazy.

She was equally unsure whether the accused uttered this statement while still in the kitchen or in the living room. [ 115 ] As revealed by her testimony, it was Officer Jackson’s first day on the job. It is fair to say that she must have been understandably nervous, if not shaken, by the sight of Mrs. Diszhazy lying still in a pool of blood. I am also aware that English is not her mother tongue.

Although this does not necessarily make her less believable, it may have impacted her ability to properly record her observations at the time. [ 116 ] Having said that, I do take into consideration that Officer Jackson was in close proximity to the accused when he made the statement. In addition, her memory of the gist of the statement and, surely, its incriminating component is consistent with that of Officer Rochefort. Also, the words uttered by the accused were recorded in a report drafted with Officer Rochefort in the immediate aftermath of the events.

All of this lends support to the reliability of Officer Jackson’s evidence. [ 117 ] With respect to the statement made by Mrs. Diszhazy, I note again that Officer Jackson appeared somewhat less reliable that Officer Rochefort. While she was able to describe the physical state of Mrs. Dizhazy, she could not recall her tone of voice when she uttered the statement to Officer Rochefort nor could she say whether she had an accent. However, she was adamant that the statement was made in English. She was relatively close to Mrs.

Diszhazy at the time, less than five meters away according to her. [ 118 ] I also consider that that they are some discrepancies between the testimony of Officer Jackson and Rochefort with respect to the statement uttered by Mrs. Diszhazy. [ 119 ] For example, Officer Jackson testified having overheard “he hit me, but don’t take him” which is a slightly different utterance than the one heard by Officer Rochefort. Recall that Officer Rochefort reported having heard “he hit my nose, but don’t take him”. Moreover, Officer Jackson indicated that she was closer to the entrance when she overheard Mrs. Diszhazy.

On the other hand, Officer Rochefort stated that Officer Jackson was still in the kitchen when Mrs. Diszhazy spoke to her. Officer Jackson also claimed that Mrs. Diszhazy started talking by herself and that her statement appeared to be unsolicited. Officer Rochefort testified that Mrs. Diszhazy uttered the statement as a response to the question “what happened?”

[ 120 ] I find these discrepancies to be minor. The exact location of Officer Jackson at the time Mrs. Diszhazy made her first hearsay statement has no significant bearing on the officers’ comprehension of the statement and their ability to accurately report it. That Officer Jackson understood Mrs. Diszhazy to have said “he hit me, but don’t take him” as opposed to “he hit my nose, but don’t take him” can be reasonably explained by the fact that she was further away from Mrs. Diszhazy than Officer Rochefort who, at the time, was kneeling on the ground very close to her.

The same can be said about Officer Jackson’s impression that the statement was unsolicited. [ 121 ] From a general standpoint, I find that cross-examination of Officer Jackson did not in any way undermine her credibility. It only highlighted reliability issues which I have already addressed. In any event, any reliability concern stemming from the testimony of Officer Jackson is counterbalanced by the overall quality of Officer Rochefort’s rendition of the events. [ 122 ] Indeed, Officer Rochefort proved to be a reliable witness.

With respect to her interaction with the accused, she reported that he first stated to them “come, come” to rush them inside. She detected a smell of alcohol coming from the accused’s breath which he himself conceded to be plausible. She testified that he walked to the police cruiser without his boots, another item of evidence agreed upon by the accused. [ 123 ] Of significance, Officer Rochefort was able to convey the full statement uttered by the accused from memory. She also clearly indicated that Mrs. Diszhazy’s first hearsay statement preceded the statement of the accused.

She explained that the accused made the statement as she was walking towards him to place him under arrest. It can therefore be inferred that he was relatively close to her at the time. [ 124 ] It is also relevant to mention that what Officer Rochefort heard from the accused essentially mirrors what Officer Jackson understood was being said. Fundamentally, both officers heard the accused making an incriminating statement, acknowledging that he hit his spouse. The words uttered by the accused as reported by both officers share common denominators with what he claimed to have said.

The officers testified that the accused stated “take care of her, I love her, but I hit her”. Even though the accused denied having said that he hit her, he confirmed having stated “I love her, please take care of her”. [ 125 ] I have no reason to believe that Officer Rochefort sought to mislead the Court. In fact, her testimony was fairly balanced. As an example, she conceded that the accused looked sincerely worried for his wife. She also reported that Mrs. Diszhazy asked that her husband not be taken into custody.

If Officer Rochefort had wanted to deliberately mislead the Court and further incriminate the accused, she would have surely left out this segment of Mrs. Diszhazy’s first hearsay statement. [ 126 ] Speaking of her interaction with Mrs. Diszhazy, Officer Rochefort accurately depicted where she was found in the dwelling.

She indicated that she was lying on the ground between the kitchen and the corridor, which is consistent with the photograph taken on the scene. [23] She provided specifics about the state of her injuries, including the fact that she had a bruise on her left eye and her nose appeared purple and fractured. She was able to say that Mrs. Diszhazy had an accent and a weak tone of voice when she uttered the first hearsay statement. She noticed that Mrs.

Diszhazy smelled of alcohol which is consistent with the accused’s own testimony that she drank on the day of the events. [ 127 ] Officer Rochefort recalled the exact questions asked to Mrs. Diszhazy when she kneeled down to check on her. She indicated that Mrs. Diszhazy conveyed her statement without any hesitation. She stated affirmatively that “what Mrs. Diszhazy said was clear”.

She was very close to her when she made the statement, as confirmed to a large extent by the accused himself. [ 128 ] I also take into account that cross-examination of Officer Rochefort did not impact her reliability with respect to the accuracy of the words uttered by either the accused or Mrs. Diszhazy. Although she did not take any personal notes during her intervention, the evidence demonstrates that she recorded the utterances in a report drafted alongside Officer Jackson soon after the events. Officer Jackson mentioned that she needed help drafting the report in light of her inexperience.

However, there is no evidence of any form of collusion between the two witnesses or that their testimony was unduly tainted in any way. [ 129 ] Viewed in the context of the evidence as a whole, including the rejection of the accused’s exculpatory evidence, I am satisfied that the officers accurately recorded the statements made by him and Mrs. Diszhazy while in their presence. I am therefore satisfied that the accused stated in reference to his wife “take care of her, I love her but I hit her” to Officers Jackson and Rochefort. [ 130 ] I am also satisfied that Mrs.

Dizhazy did state “he hit my nose, but don’t take him” to Officer Rochefort. Statement of Mrs. Diszhazy to Officer Moogk [ 131 ] It is relevant to first determine when Officer Moogk interacted with Mrs. Diszhazy. Despite a lack of direct evidence regarding the exact time frame of the police intervention, it can be inferred that the alleged statement made by Mrs.

Diszhazy to Officer Moogk was made contemporaneously to the event which caused her injuries. [ 132 ] Officer Moogk did not specify at what time the 911 call was made, what time he heard on the radio waves that two police cruisers were responding to the call or what time he arrived at the accused’s residence. Officer Moogk did mention, however, that two police cruisers were already on the scene when he arrived. It can therefore be inferred that he arrived after Officers Jackson, Rochefort, Bertholot and Vary. [ 133 ] Officer Moogk testified that a police officer was already looking after Mrs.

Diszhazy when he first saw her lying on the kitchen floor. Officer Rochefort testified that Officers Vary and Bertholot were attending to Mrs. Diszhazy when she approached the accused and received his statement. It logically follows that the police officer who was assisting Mrs. Diszhazy when Officer Moogk entered the premises was either Officer Vary or Officer Bertholot. [ 134 ] From the evidence, it can be concluded that Officers Vary and Bertholot arrived not long after the first hearsay statement was made.

Also, Officer Moogk’s testimony suggests that he drove to the accused’s residence immediately after having heard that two police cruisers were on their way. He must therefore have arrived on the scene shortly after Officers Vary and Bertholot and, consequently, not long after the first statement was uttered by Mrs. Diszhazy – again a matter of minutes.

[ 135 ] It may also be inferred from Officer Moogk’s testimony that he crouched down next to Mrs. Diszhazy pretty much immediately after entering the premises. On the evidence, I conclude Officer Moogk attended to Mrs. Diszhazy only minutes after she uttered a first statement to Officer Rochefort. In other words, not much changed between the time Officer Rochefort interacted with Mrs. Diszazhy and the time she would have made her statement to Officer Moogk.

It is therefore plausible the she may have repeated to Officer Moogk what she had just conveyed to Officer Rochefort. [ 136 ] As to the reliability of Officer Moogk’s testimony, it should be emphasized that he also observed that Mrs. Diszhazy was lying sideways on the ground in a pool of blood. She had visible facial injuries. Her face was bruised and bloodied. Her eyes were initially shut. She had a weak tone of voice. Officer Moogk’s observations were essentially identical to those made by Officers Jackson and Rochefort.

Given that I find Officer Rochefort to be a particularly reliable witness, the fact that Officer Moogk’s testimony is consistent with segments of her account heightens his reliability. I also accept his testimony that he crouched down very close to Mrs. Diszhazy – approximately a meter away – when they interacted and was therefore in a position to properly hear and understand her utterances. [ 137 ] Much like Officers Jackson and Rochefort, Officer Moogk did not take personal notes of what Mrs. Diszhazy would have told him on site. Furthermore, he reported in examination-in-chief that Mrs.

Diszhazy said that she fell as a result of being struck. Under cross-examination, he conceded that this was not in his report and that he had no independent memory of her providing such information. I acknowledge that this may raise reliability concerns. However, given Officer Moogk’s uncertainty about this segment of Mrs.

Diszhazy’s hearsay statement, Crown counsel did not seek to have it admitted into evidence. [ 138 ] As for the statement which was admitted into evidence, namely that the accused struck her with an open hand – his right hand – on the nose and left eye area and that he had consumed large amounts of alcohol, I have no reason to doubt that Officer Moogk accurately conveyed its contents. Cross-examination was very brief and did not significantly impact the reliability of his account, let alone the credibility of the witness. [ 139 ] Consequently, I am satisfied that Mrs.

Diszhazy told Officer Moogk that the accused struck her with an open hand – his right hand – on the nose and left eye area and that he had consumed large amounts of alcohol. Statement made by Mrs. Diszhazy to Officer Diktakis [ 140 ] Recall that later in the evening, at around 10:30 pm, Officer Diktakis was tasked to take a written statement from Mrs. Diszhazy at the Lakeshore Hospital. At the time, Mrs. Diszhazy was unable to physically provide a written statement. However, Officer Diktakis was adamant that she was able to articulate words properly and clearly describe the events to him. [ 141 ] Because Mrs.

Diszhazy was unable to put her statement on paper, Officer Diktakis wrote the statement on her behalf. He explained that he wrote down both the questions asked by himself and the corresponding responses she provided. He did so in real time and on a verbatim basis. She then signed the statement. [ 142 ] Cross-examination of Officer Diktakis did not undermine his claim that he took a verbatim statement of Mrs. Diszhazy. It only revealed that Officer Diktakis did not speak to a doctor to inquire into Mrs.

Diszhazy’s state of mind at the time or to discuss the impact of medication, if any, on her cognitive abilities prior to taking the statement. [ 143 ] I also take into account the fact that the admissible aspects of the statement made to Officer Diktakis are pretty much identical to the contents of the statements uttered to Officers Rochefort and Moogk. This does not in and of itself make Mrs. Diszhazy more believable. But it certainly goes to show that all four police officers essentially reported the same statement.

This tends to reinforce the reliability of each recipient of the statements as it is very unlikely that they could all have been mistaken about what was conveyed to them by Mrs. Diszhazy and unlikely they would all make the same mistake. [ 144 ] In conclusion, I have no reason to doubt that what Officer Diktakis wrote down on the statement (see admissible segments of Exhibit P-2) accurately reflects what Mrs. Diszhazy told him more than three hours after the initial police intervention at her residence. [ 145 ] I am thus satisfied that Mrs.

Diszhazy stated to Officer Diktakis: Line 9: […] my husband hit me and I fell to the ground. This occurred today at 7:00 pm (December 29 th , 2019). He was drunk and when he saw I was bleeding a lot he called 911. Line 14: He slapped me in the face on the left side of my face. Line 19: (To the question: “did you lose consciousness?”) No but I was bleeding a lot from the nose and fell to the ground . [ 146 ] Having concluded that the police officers reliably reported the utterances made by the accused and Mrs.

Diszhazy, I must now determine to what extent I can rely on the various statements to assess the strength of the Crown’s evidence and, in the end, decide whether proof of the alleged offence has been established beyond a reasonable doubt in the context of the evidence as a whole. [ 147 ] I must now direct my attention to the reliability and credibility of the declarants. In other words, are the statements credible and can they be relied upon?

(2) Are the statements credible and reliable? Statement made by the accused [ 148 ] I concluded that the accused stated to the police officers in reference to his wife “take care of her, I love her but I hit her”. This self-incriminatory statement was found beyond reasonable doubt to have been made freely and voluntarily. It is well recognized that a

voluntary confession is generally more likely to be true. [ 149 ] In the same vein, although not determinative of the issue, as stated by the authors Sopinka, Lederman and Bryant in The Law of Evidence in Canada : “Because confessions are a species of admissions, they are admissible as an exception to the hearsay rule on the basis that a person would not admit his or her guilt unless it was true”. [24] [ 150 ] At this juncture, it is worth reiterating some comments made in my Ruling on the Admissibility of Statements (VD-1). [ 151 ] While there is evidence that the accused drank alcohol and that his consumption appeared to impact his balance, there is no evidence that it impaired his ability to organize and communicate his thoughts coherently.

The same can be said about his state of panic. [ 152 ] I am satisfied that the accused was not deprived of the choice to speak by reason of intoxication and/or mental incapacity. He had the requisite capacity to make an active choice to speak to the police.

His will was not overborne by lack of an operating mind. [ 153 ] Even though he had not yet been cautioned to remain silent when he made the statement, the accused was aware at the time that he could be considered as a suspect by the police and thus face jeopardy, as he himself suggested in his testimony when explaining why he made a statement, albeit an exculpatory one according to him.

The accused spontaneously chose to speak and incriminate himself, before the police could even consider reading a standard caution. [ 154 ] This is not a case where it can be said that the accused was so devoid of rationality and understanding that his uttered words could not fairly be considered to be his statement at all.

On the contrary, the accused knew what he was saying and that he was saying it to police officers who could use it to his detriment. [ 155 ] In addition, as Crown counsel correctly pointed out, the fact that the statement was unsolicited and spontaneous also provides a badge of reliability. [ 156 ] This is not to say that a statement made by an accused person freely and voluntarily to a person in authority is automatically truthful and reliable. However, in the case at bar, the accused’s confession that he hit his wife is consistent with the evidence as a whole.

The photograph taken on the scene [25] , the reliable observations made by the officers regarding the state of Mrs. Diszhazy and the nature of her facial injuries all support the theory that she was assaulted by the only other person present in the dwelling at the time. Simply put, the evidence is more compatible with an assault than an accidental fall. [ 157 ] Also of significance, the statement made by the accused is consistent with what Mrs. Diszhazy conveyed to the police. As will be further discussed shortly, I find Mrs.

Diszhazy’s statements to be reliable and truthful. [ 158 ] Finally, I also take into account that the statement made by the accused is not “a mixed statement”. It is not partly inculpatory and partly exculpatory. Instead, it is entirely inculpatory. [ 159 ] When considering the evidence as a whole and the circumstances of the making of the statement, I am satisfied that I can rely on it as being truthful and attach significant probative weight to it in the course of my decision-making process. Statements made by Mrs. Diszhazy [ 160 ] Much caution is warranted when assessing the weight of Mrs.

Diszhazy’s statements to the police. Mrs. Diszhazy was not under oath or affirmation when she uttered the statements. She did not promise to tell the truth. I did not see or hear her testify. She could not be cross-examined like the other witnesses heard at trial. [ 161 ] The three hearsay statements at issue were notably admitted into evidence because it was established on a balance of probabilities that they satisfied the reliability threshold required by the principled exception to the hearsay rule.

The mere fact that they satisfied such threshold is not synonymous with a finding of ultimate reliability at the trial stage. [ 162 ] Once admitted, I remain the ultimate arbiter of what to do with the evidence and of whether or not to accept that the statements are true. I have to assess the ultimate reliability of the statement in the context of the entirety of the evidence tendered at the trial proper. [ 163 ] To be specific, at the admissibility stage, the statements were found to be substantively reliable.

It should be reminded that substantive reliability is established where the hearsay statement is inherently trustworthy. The standard for substantive reliability in the context of the admissibility inquiry is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross- examination on it would add little if anything to the process. [ 164 ] Of note, in support of my finding that the statements satisfied the substantive reliability threshold, I expressed the view that material aspects of the statements were corroborated by other items of evidence.

At the admissibility stage, I therefore found the three statements to be inherently trustworthy. [ 165 ] While my conclusions in the Ruling on the Admissibility of Statements (VD-1) are certainly not irrelevant at the trial proper, it is important to distinguish the two stages of the trial process. Admissibility of the hearsay statements required the Crown to demonstrate on a balance of probabilities that they fell either under a traditional exception and/or under the principled exception to the hearsay rule.

At the trial proper, the Crown must establish beyond reasonable doubt that the accused committed the alleged offence on the basis of the evidence as a whole – including the admissible hearsay statements. The burden shouldered by the Crown is not the same. [ 166 ] With that in mind, I will now proceed with my assessment of the ultimate reliability of Mrs. Diszhazy’s utterances to the police officers. When the three hearsay statements are taken together, the question essentially boils down to whether Mrs.

Diszhazy’s claim that the accused slapped her on the left side of her face is credible and reliable. [ 167 ] I find the three statements made by Mrs. Diszhazy to the police to be credible and reliable for the following reasons.

[ 168 ] With respect to Mrs. Diszhazy’s claim that the accused hit her, all three of her statements are corroborated by the accused’s own independent and self-incriminatory statement to the police which I already concluded to be reliable and significantly probative. The striking similarity between the statements made by Mrs. Diszhazy and that of the accused is for sure a compelling indicia of reliability. [ 169 ] Regarding the first hearsay statement made by Mrs.

Diszhazy, Officer Jackson testified that when she first saw her, she looked dead, she was not moving, she had a visible injury to her eye and there was blood everywhere. Officer Jackson was surprised she could even talk. As for Officer Rochefort, she also noted the presence of blood in large quantity and noticed that Ms. Diszhazy had a bruise near her left eye and that her nose appeared fractured. Her eyes only opened when she touched her shoulder. [ 170 ] Mrs. Diszhazy answered immediately: “He hit my nose, but don’t take him” to the open-ended question asked by Officer Rochefort: “What happened”?

She said nothing more. It was her first interaction with a police officer upon sustaining her injuries. As Officer Rochefort noted, she uttered the statement with the voice of a person visibly in pain. [ 171 ] These observations demonstrate that Mrs. Diszhazy was still experiencing the stress and ill-effects of the event which caused her serious injuries when she first interacted with the police.

This, coupled with the short time lapse between the event which triggered the statement and the statement itself, lends support to a finding that the effects of the involvement from the event were still operating and dominating Mrs. Diszhazy’s thoughts at the time she made the statement to Officer Rochefort. [ 172 ] This is why I concluded that her first hearsay statement was admissible under the spontaneous utterance exception to the hearsay rule.

Having now heard the entirety of the evidence, I remain of the view that this statement was made with such spontaneity and contemporaneity that the possibility of concoction can be safely discounted. The possibility of concoction is also significantly reduced by the contents of the admissible statement made by the accused who confessed having hit Mrs. Diszhazy as well as the facial fractures incurred by her.

The circumstances in which the first hearsay statement was made provide a persuasive badge of reliability [ 173 ] Moreover, as alluded to earlier, the observations made by Officers Jackson and Rochefort and the photograph of Ms. Diszhazy taken on the premises [26] lend support the theory that she was victim of an assault. [ 174 ] The “but don’t take him” segment of the first hearsay statement is also highly relevant in that it makes it unlikely that Mrs. Diszhazy would have purposely incriminated her husband.

Why would she falsely incriminate him for a serious crime, while at the same time implore the police not to apprehend him? The evidence does not disclose any reason for Mrs. Diszhazy to make up a false claim of assault. The fact that she clearly did not want him to be taken into custody further heightens both the credibility and reliability of her statement to Officer Rochefort. [ 175 ] As for Mrs.

Diszhazy’s claim that she was hit on her nose, this is corroborated by the visible facial injuries observed by both police officers, the photograph adduced into evidence [27] and the injuries referred to in the Coroner’s investigative report. [ 176 ] With respect to the second hearsay statement, the one uttered to Officer Moogk, as mentioned earlier, it was made only minutes after the first one uttered to Officer Rochefort. While this statement did not qualify as a spontaneous utterance for the purpose of admissibility, it was nonetheless made contemporaneously to the event which caused Mrs.

Diszhazy’s injuries and even more so to her first hearsay statement. [ 177 ] While Mrs. Diszhazy was less overwhelmed by the pressure or involvement of the event which caused her injuries than when she uttered her first hearsay statement, the degree of contemporaneity with said statement is indicative of the fact that she had little time to give some thought to the possibility of mispresenting the events which caused her to be injured. [ 178 ] In fact, Mrs. Diszhazy did not detract from her first statement.

In the course of her interaction with Officer Moogk, she solely added to her earlier incriminating statement that the accused struck her with an open-hand – the right hand – not only to her nose but also to her left eye area. She also mentioned that the accused had consumed large amounts of alcohol. Although this part of her statement is to a certain extent consistent with observations made by police officers, it is far less material to the issue of guilt. [ 179 ] Much like her first hearsay statement, Mrs. Diszhazy’s second utterance was made in response to an open-ended question.

Officer Moogk did not suggest an answer or exert any influence upon Mrs. Diszhazy. [ 180 ] Again, the claim that the accused struck her on her nose and left eye area is well corroborated by the evidence, including the statement made by the accused. Whether the accused in fact used his right hand as opposed, for example, to his left hand is very much a peripheral matter. [ 181 ] That Mrs. Diszhazy was in all likelihood still under the influence of alcohol at the time of the first two hearsay statements does not alter my conclusions. Although Mrs.

Diszhazy was clearly in a diminished state, the evidence still permits to infer that she was of a sound mind when she uttered the statements. [ 182 ] As for the statement to Officer Diktakis, it I true that it was made more than three hours after the events. Unlike the first two hearsay statements, especially the first one, Mrs. Diszhazy had far more time to give thought to altering her version. Clearly, it was not made spontaneously. [ 183 ] But, again, Mrs. Diszhazy did not significantly detract from her earlier statements.

She specified that the events took place at 7:00 pm and suggested that she fell to the ground as a result of being hit. She also added that she did not lose consciousness but was bleeding a lot from her nose. She explained that her husband called 911 when he saw the she was bleeding a lot. All these answers were given in response to open-ended questions. For reasons already exposed, the admissible supplemental information provided by Mrs. Diszhazy in this statement is supported by corroborative evidence. [ 184 ] Despite being hospitalized and in all likelihood medicated, it is safe to infer that Mrs.

Diszhazy was overall in a better state then when she was first seen by the police officers. It should be recalled that Officer Diktakis assertively confirmed that she was able to articulate words and describe the events, although not physically able to write the statement herself. In the circumstances, the fact that

Officer Diktakis did not reach out to medical staff to inquire as to Mrs. Diszhazy’s state has no bearing on the truthfulness and reliability of what she conveyed to him. [ 185 ] I acknowledge that my assessment of the ultimate reliability of Mrs. Diszhazy’s statement mirrors to a large extent the reasons set out for their admissibility. This is a case where the line between threshold reliability and ultimate reliability is somewhat blurred. [ 186 ] This is so for a number of reasons. The statements are brief.

By their very nature and due to their incriminatory component, cross- examination of the declarant would have added little, if anything. The factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Moreover, because their admissibility depended primarily on their inherent trustworthiness (substantive reliability), I had already inquired into those factors tending to show that the statements were true in determining threshold reliability. [ 187 ] In conclusion, in addition to being satisfied that the admissible statements made by Mrs.

Diszhazy were accurately reported by the police officers, I find that they are credible and can be entirely relied upon. I assign great probative weight to them. Did the accused commit an aggravated assault? [ 188 ] In light of my findings and based on the evidence as a whole (including my rejection of the accused’ exculpatory evidence), I am convinced beyond reasonable doubt that the accused struck Mrs. Diszhazy’s nose and left eye area. Consequently, she started bleeding profusely and fell to the ground.

I am also convinced beyond reasonable that the visible injuries observed by the police officers and the fractures revealed by the imaging examination at the Lakeshore Hospital result from the events which took place on December 29 th , 2019. [ 189 ] Although the events which led the accused to hit his spouse are somewhat devoid of context, it can be inferred beyond reasonable doubt from the evidence as a whole that the accused intentionally applied force to Mrs.

Diszhazy, that she did not consent to being hit and that the accused knew that she did not consent to being hit. [ 190 ] The mental element in aggravated assault is the mental element in assault, coupled with objective foresight of the risk of bodily harm. Pursuant to

section 268 of the Criminal Code there must also be proof that the victim was actually wounded, maimed, disfigured or that her life was endangered as a result of the assault. However, proof of an intent to wound, maim, disfigure or specifically endanger one’s life is not required. [ 191 ] In the case at bar, I find that a reasonable person, in the circumstances, would have realized that the force intentionally applied would put Mrs. Diszhazy at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of bodily harm that she suffered here.

One should also keep in mind that Mrs. Diszhazy was weak and that her health was already precarious at the time of the events. I therefore conclude that the risk of bodily harm – that is the risk of causing an injury which is more than merely transient or trifling in nature – was objectively foreseeable in the circumstances of this case. [ 192 ] Now, in order to find the accused guilty of aggravated assault, it remains to be determined whether the force the accused intentionally applied wounded, maimed, or disfigured Mrs. Diszhazy.

The charge as drafted in the information makes no reference to an assault which endangered her life. In any event, the evidence does not support such a finding. [ 193 ] As a reminder, the police officers observed the visible facial injuries sustained by Mrs. Diszhazy: a black eye on her left hand side, her nose which appeared purple and broken, significant amounts of blood on her face and nearby. This is also apparent from the photograph taken on the premises.

In addition, diagnostic imaging examination conducted on December 29 th , 2019 revealed the presence of a small left front-temporal subdural haematoma as well as left orbital floor fractures. [ 194 ] As referred to previously, I am satisfied beyond reasonable doubt that the prohibited conduct of the accused caused or at the very least significantly contributed to the injuries observed by the police officers and diagnosed at the hospital. [ 195 ] In light of the injuries sustained, can it be said that Mrs.

Diszhazy was wounded, maimed or disfigured as a result of being assaulted by the accused? [ 196 ] In the course of its exhaustive review of the legislative history and jurisprudential

interpretation of the word “wound”, for the purposes of

section 268 of the Criminal Code , the British Columbia Court of Appeal in the case of R. v. Pootlass [28] noted that the Criminal Code was amended in 1983 to create the current three-tier scheme that categorizes assaults as assault simpliciter , assault causing bodily harm and aggravated assault. [ 197 ] The Court stated that when Parliament created the three categories of assault in 1983, it signaled that they were of increasing seriousness. Aggravated assault is a more serious offence than assault causing bodily harm.

It would be contrary to Parliament’s clear intent if wounding, as a mode of aggravated assault, could be committed without, at the very least, the infliction of bodily harm [29] . [ 198 ] The Court expressed the view that aggravated assault required something more than the infliction of bodily harm. It required that the injury rise above the least serious category of injuries that would meet the definition of bodily harm provided for in

section 2 of the Criminal Code , namely: “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [ 199 ] The Court therefore embraced “the serious bodily har

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