R. v. Fernando, 2017 ONCJ 56

CITATION: R. v. Fernando, 2017 ONCJ 56 DATE: January 12, 2017 COURT FILE No.: Toronto Region ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. McKibbon, ) for the Crown ) — AND — ) ) ) DISHANIE FERNANDO ) A. Wine, ) for the accused ) ) ) ) HEARD: September 7, November 30, 2016 FELDMAN J.: Introduction [ 1 ] Dishanie Fernando entered a not guilty plea to a charge of Public Mischief. It is alleged she falsely accused the complainant, Miles Marianchuk, of assaulting her after a night of drinking and intimacy. [ 2 ] The Crown called Mr.

Marianchuk, his mother, Dawn Sheffer, and a police officer in support of its case. I must weigh the credibility of the witnesses and the evidence in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence [ 3 ] Mr. Marianchuk was 29 years old at the time of these events. He has a criminal record that includes a recent assault of his child’s mother. He met Ms. Fernando on September 1, 2015, at a bar on Victoria Park Ave. in Scarborough where she was working. He was there celebrating his mother’s birthday. [ 4 ] That night, Mr.

Marianchuk had some drinks with the accused after she finished work. She returned to his apartment, where he lived with his mother, in the early morning hours of September 2. They were intimate. She left the next afternoon. [ 5 ] Ms. Sheffer is the superintendent of the apartment building. She employs her son part-time in maintenance. She recalls Ms. Fernando sleeping over that night. [ 6 ] The complainant told the court that before Ms. Fernando left the apartment, she suggested he meet her later for drinks at a downtown bar. He did so around 10 p.m. They stayed until the last call at 2 a.m.

She paid for the drinks. They were both intoxicated. [ 7 ] They returned to his apartment building around 4:30 a.m. and stayed at a furnished apartment on the 8 th floor that had been vacated by the previous tenants. They were intimate again, this time on a couch near the front door. [ 8 ] Mr. Marianchuk testified that after having sex, the defendant indicated she was going to go home. He offered to call a cab but said that in response Ms. Fernando accused him of kicking her out. He said that her mood changed, she seemed ‘possessed’ and she began to hit herself several times around her mouth and nose.

He saw blood. [ 9 ] He recalls her saying that she ought to have stayed with another man she had been talking to earlier at the bar. He indicated he was indifferent to this comment as he had no emotional attachment to her. Rather, he was concerned by her behaviour. He said he picked up her purse and asked her numerous times to leave. He claimed to just want her out and away from him. He denies either touching her or dragging her towards the door or kicking and pushing her out into the hallway. She eventually left. It was shortly after 6 a.m. [ 10 ] The complainant recalls that once Ms.

Fernando was out, she ran across the hallway and knocked on another door. It was answered. She asked a neighbour to call the police. The door was shut quickly. [ 11 ] Mr. Marianchuk told the court that they made their way to the elevator. He said he kept his distance from her as they descended to the ground floor. There he saw his friend, Rob, who did not have his key to the lobby door. He let him in. He said that while he stood aside, Rob tried to calm the accused down. [ 12 ] The complainant made his way to his mother’s apartment. Ms. Sheffer made him remain there. He fell asleep.

Later, he saw the police arrest the defendant in the parking lot across the street. [ 13 ] Video surveillance tends to support material elements of the complainant’s evidence. It shows him leaving the apartment at a distance from the defendant who is already knocking on a neighbour’s door. There is nothing to indicate that she was forcefully

ejected as she alleges. [ 14 ] This evidence also shows the complainant carrying the defendant’s purse while holding the elevator door open and motioning for her to enter. She can be seen grabbing or hitting the complainant in his face. He presses the button and stands apart from her on the way down. On the first floor he gets out and motions for her to leave. [ 15 ] The lobby surveillance video shows Mr. Marianchuk opening the front door for his friend who talks to the accused while the complainant stands aside. He can be heard telling Rob to “get her the fuck out of the building”. Ms.

Fernando is heard saying that the complainant was “kicking the shit” out of her. There was nothing in the 8 th floor hallway video surveillance to support that assertion. [ 16 ] Ms. Fernando called the police. In her 911 call, she said, in part, that the complainant freaked out and hit her nose, that it was their first date, that he grabbed her and dragged her out the door, that he kicked and punched her causing her to bleed, that he said he wouldn’t get charged because of her record and that he broke her cell phone.

The objective evidence is to the contrary. [ 17 ] Dawn Sheffer told the court she could tell the defendant was drunk and that she saw no injuries on her face. She said her son is not a drinker and that although he assaulted the mother of his child, she also assaulted him. She volunteered that she heard the accused worked in a massage parlour. [ 18 ] Ms. Sheffer has a dated criminal record for Immoral Theatrical Performance, Assault Causing Bodily Harm and Trafficking in a Narcotic. In her testimony, she did not hesitate to denigrate the accused when she could and served as an advocate for her son.

There was little that was objective in her testimony. She was an unimpressive witness upon whose evidence I would place little weight. [ 19 ] P.C. Robin Hind took a statement from the accused as part of a domestic assault investigation. Ms. Fernando told the officer that Myles insisted she come back to his building. She said she told him that she “should have gone with the other guy”, that he lost it and that he told her to get out. She claimed he pulled her from the couch and then kicked and slapped her in the hall. She said she had a small bump on the left side of her head.

She recalls knocking on a neighbour’s door to call the police. She admitted having had “a few shots and quite a few drinks”. The officer observed a tiny cut on the bridge of her nose. [ 20 ] P.C. Hind returned to the building in order to interview the complainant intending to arrest him for assault, but decided first to view the surveillance videos. He observed the two parties leaving the apartment. He saw that while trying to keep his distance, the complainant was carrying the accused’s purse and encouraging her to come out to the elevator.

There was no evidence of an assault in the hallway. [ 21 ] The surveillance camera also showed the complainant keeping his distance from the accused in the elevator and then in the lobby as he sought help from someone to get her to leave the building. [ 22 ] The surveillance evidence tends to support Mr. Marianchuk’s testimony and his depiction of the bizarre events in the apartment and in the hallway. It shows that the accused was reluctant to leave and that the complainant neither dragged the accused out of the apartment nor assaulted her in the hallway.

Given the defendant’s aggressiveness at the elevator, it would appear that the complainant’s caution in keeping his distance was warranted. Ms. Fernando’s behaviour was likely fuelled by alcohol. [ 23 ] P.C. Hind it felt possible the accused had made false allegations. He decided to question her further. He said that upon re- interviewing her he found it difficult to get information from her. He felt she was not forthcoming. She suggested she had only one date with the complainant, not two. She never mentioned having had intercourse.

She changed her allegation regarding the assault in the hallway to one of having lost her balance, falling down and then being kicked. She did not say where she was kicked. She did not seem upset. The officer observed no marks on her body. He did not believe her. He arrested her for Public Mischief. Assessment of the Evidence [ 24 ] I found the complainant to be a straightforward witness. He did not embellish his evidence. He said there was nothing serious about the relationship beyond sex. He was made afraid by the defendant’s ‘crazy behaviour’ and threat to claim assault.

He said he kept his distance and just wanted her to leave. He was not seriously challenged in cross-examination. [ 25 ] Ms. Fernando told Rob that the complainant “kicked the shit out of her”. She informed the police this was her first date with him. It was not. She omitted the fact of intimacy. She said she was dragged out of the apartment into the hallway and then kicked and slapped causing her to bleed. She said that she was pushed by the complainant at the elevator. She was not. She claimed he broke her phone, the one with which she later called 911. She admitted being intoxicated. [ 26 ] P.C.

Hind noted that when he spoke with the accused, she did not seem upset. There were long pauses in her reporting of the events. The officer felt she was not forthcoming. The second time he spoke with her, she claimed inconsistently to having fallen down in the hall before being kicked. But for a mark on her nose, there was an absence of injury. [ 27 ] The video surveillance tends to buttress the narrative of the complainant and undermine that of the defendant gleaned from her utterances to Rob and P.C. Hind. There was nothing in her allegations that were supported by this evidence.

I don’t accept her material assertions indirectly adduced. [ 28 ] In this regard, it is apparent from the video evidence that the parties left the apartment separately. There is no indication at any point of an assault in the hallway. The complainant carried her purse as if to coax the defendant forward. He kept his distance, as if apprehensive, at the apartment door, in the hall, at the elevator and down to the lobby where he asked for Rob’s assistance in persuading the defendant to leave. The accused was physically aggressive with the complainant at the elevator door, one more indication of her demeanour.

The evidence renders the complainant’s testimony reliable and the utterances of the defendant not. [ 29 ] On all the evidence, I am not left in reasonable doubt that Ms. Fernando’s complaint was intentionally false. She intended Mr. Marianchuk harm by false reporting. There will be a finding of guilt.

Released: January 12, 2017 Signed: “Justice L. Feldman”