R. v. J.C., 2023 MBPC 26

CITATION: R. v. J.C., 2023 MBPC 26 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) E. Dunsmore ) ) for the Crown - and – ) ) ) J.C. ) ) E. Brenner for the Accused ) ) Judgment delivered: ) June12, 2023 Restriction on Publication – of victims and witnesses: Pursuant to s.486.5 of the Criminal Code Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. FREDERICKSON, P.J. INTRODUCTION [ 1 ] On August 3, 2022, R.L. suffered significant physical injuries. She says her former partner, J.C. (J.C.), inflicted them.

He denies the allegations. [ 2 ] In addition to aggravated assault, J.C. is charged with assault with a weapon, break and enter with intent, uttering threats, kidnapping, and failing to comply with conditions of his Release Order. [ 3 ] The issue for me to determine is whether I believe R.L.’s account of what happened that night. BACKGROUND [ 4 ] R.L. and J.C. were in a relationship for approximately four years, starting in 2017. R.L. described their relationship as “up and down”, and at the time of their separation, they were going through a rocky period.

In May of 2021, R.L. became pregnant with their daughter, and J.C. ended the relationship shortly thereafter. [ 5 ] Although it was J.C.’s decision to end the relationship, he continued to have contact with R.L. The contact was not positive, and J.C. was charged in relation to matters not at issue in this trial. He was released on a Release Order with standard conditions to not have contact with R.L., and to not attend where she lived. [ 6 ] Notwithstanding this court order, contact between the two continued throughout R.L.’s pregnancy.

R.L. says that J.C. began using drugs more regularly and in particular started to use crack cocaine. In addition, he began drinking alcohol again after several years of sobriety. [ 7 ] In the fall of 2021, R.L. moved out of their shared house on Carlyle, in the City of Winnipeg, and into an apartment on Smith Street. After her daughter’s birth, she moved back into the Carlyle house.

She said she and her daughter lived in the living room area of the house, and alleged that J.C. was running a drug operation from the basement. [ 8 ] By the end of March 2022, R.L. was living in a women’s shelter, first in Winkler, Manitoba and then in Winnipeg. Although she was supposed to be safe from J.C., he knew where she was at all times. [ 9 ] She eventually moved into an apartment on Hastings Boulevard in Winnipeg. Child and Family Services was involved and required R.L. to comply with certain conditions, including not having contact with J.C.

Despite the CFS condition and the conditions of the Release Order, J.C. and R.L. were still in contact with each other.

[ 10 ] In addition to the no contact condition, CFS imposed a condition that R.L. abstain from the use of drugs. R.L. tested positive for cocaine. Eventually, after repeated non-compliance with their conditions, CFS apprehended her daughter in mid-July 2022. [ 11 ] R.L. testified that the time following her daughter’s apprehension was “very dark”. She attempted suicide, and sent J.C. a video of what she had done. [ 12 ] Following her suicide attempt, R.L. said that J.C. would not leave her out of his sight. If he had to be away, he left her with his friends. If she tried to leave, J.C. would be contacted.

She could not call for help, as J.C. was either within earshot or would break her cell phone. She slept on people’s couches and in vehicles. She says she was subjected to threats, including threats to kill her and her family. [ 13 ] On the morning of August 3, 2021, R.L. said that she had enough. She had spent the night at the home of a friend of J.C’s. J.C. was not there when she woke. She took a backpack, filled it with phone chargers and left. She walked from East Kildonan to her apartment in St. Vital. She got a new cell phone.

She told her friend S.O., who was staying at R.L’s apartment along with her two young daughters, that it was over with J.C. The two of them planned a “divorce party” for that evening. [ 14 ] While waiting for the babysitter to arrive, J.C. showed up at the Hastings apartment. He let himself in and demanded that R.L. leave with him. He was angry. He did not want other people living at “his house”. R.L. says that in addition to threatening her, he also threatened S.O. and her daughters.

Fearing for their safety, R.L. left the apartment with J.C. [ 15 ] Paul Prezel – who often drove J.C. around - was waiting in the parking lot with his van. J.C. and R.L. got in the van and he started driving. R.L. and J.C. began physically fighting in the back of the van over control of J.C.’s cell phone. They ended up at a Scotiabank on Dakota Street, next to a Sobey’s grocery store. [ 16 ] While J.C. was outside of the van, R.L. once again grabbed the same backpack she had taken earlier in the day and started to walk across the parking lot.

She hoped to get back to her apartment to warn S.O. about J.C.’s threats. J.C. ran after her, and the physical fight that started in the van continued. [ 17 ] J.C. eventually gained control of the backpack and left. R.L. saw someone by the entrance to Sobeys and asked for help. She collapsed and was taken to hospital. J.C. was arrested a couple of days later. THE EVIDENCE [ 18 ] Three Crown witnesses testified – R.L., Oscar Brown and Winnipeg Police Service Constable Sharon Charles. [ 19 ] R.L. testified about her relationship with J.C.

She described a relationship that started out positively, but ultimately became violent. Hallmarks of an abusive relationship were present – jealousy, isolation from her family and friends, monitoring of her movements, having others watch over her, exercising control over her possessions, passwords, and money, belittling, verbal assaults and ultimately physical assaults. [ 20 ] When asked why she continued to have contact with him, she explained that she was trying to find the person that she used to love. She had no other support network.

Although J.C. was bound by a court order to have no contact with her, she testified that he would frequently breach the order. Her calls to police did not stop or dissuade his behaviour, and so she gave in to ongoing contact. [ 21 ] She described J.C.’s increasing use of drugs and alcohol, as well as his involvement in dealing drugs. Paul Prezel was a customer of J.C.’s and since J.C. did not have a licence, Paul Prezel would frequently drive J.C. in his van.

She described the van as gold coloured, with the second row of seats taken out. [ 22 ] R.L. testified that when she woke up on August 3, 2022, she had decided that she had finally had enough, and was ending her relationship with J.C. She ignored J.C.’s demands to return, and planned a divorce party. [ 23 ] Given the constant monitoring she said she was under, it was perhaps not surprising that J.C. went to the Hastings apartment. Nonetheless, I believe R.L’s evidence that he was not invited, nor did he have permission to be there.

She and S.O. were starting the divorce party they had planned, and S.O. had briefly left the apartment to meet up with her sister and friend who were going to act as babysitters for the evening. These actions are consistent with R.L.’s evidence that she was planning on celebrating being free of her relationship. [ 24 ] When he arrived at the Hasting apartment, R.L. described J.C. as “fairly high”, noting his pupils were dilated, and he was angry. His demand – that she come with him or he would hurt the people in the house – concerned her since S.O.’s young daughters were present.

When she challenged him on this threat, specifically as it related to the children, he confirmed that if he had to hurt them he would. She said that following this threat he flashed her with a knife with a wooden handle concealed in his waistband. [ 25 ] She explained that she left with J.C. because she did not want S.O.’s children to get hurt. When he threatened to stab the people in the apartment, she told him to stab her instead. When she saw Paul Prezel’s van waiting in the apartment parking lot, she told J.C. that she was not going in willingly.

When in the van, her concern was to warn S.O. that J.C. would be coming back to the apartment. When the van stopped and she got out, her plan was to get back to the apartment to warn S.O.. [ 26 ] In furtherance of this goal, she managed to take J.C.’s phone while in the van and text a warning message to S.O.. She refused to give the phone back despite being physically assaulted by J.C while Paul Prezel drove to Scotiabank. She explained that she did not want J.C. to contact one of the people in his contact list to carry out an assault on S.O..

When Paul Prezel reneged on his promise to give her his phone, she grabbed the backpack to use as something to barter with, to see if she could convince someone to give her a ride back to the apartment. When J.C. was fighting with her in the parking lot over the backpack, she refused to give it up despite feeling her nose break and skull crack, in order to be a barrier between S.O. and J.C. returning to the apartment.

[ 27 ] I do not believe that R.L. was lying in testifying about the nature of her relationship with J.C., nor in her fear for S.O. and her daughters based on the threats J.C. made. The actions she described that she took are consistent with her decision to end the relationship with J.C., and her recognition that J.C.’s threats and behaviour were serious and potentially life threatening. Her evidence is internally consistent in this regard. [ 28 ] There were, however, areas of concern regarding R.L.’s testimony. She denied using cocaine.

Her explanation, when confronted with positive drug tests, required the court to engage in speculation as to whether such drug transference is possible. No medical or expert testimony was given to the court. I give her explanation in this regard little weight. [ 29 ] Whether she used cocaine or other drugs is not relevant to the charges J.C. is facing. Notwithstanding this, it is concerning that she may have lied about this subject. [ 30 ] In considering her motive to lie, the court notes that CFS was and still is involved with respect to her daughter.

R.L.’s purported drug use will be of concern for those proceedings. Her testimony in this regard reflects on her, not J.C. or his actions. [ 31 ] She was also questioned about social media posts that she made. When the posts were presented to her, she denied that the messages in them were directed at J.C.

The content of the posts, wishing an unnamed person “happy 25 to life”, and referencing being left for dead in a parking lot while showing a picture of her from the hospital following August 3 rd , are clearly intended for him. [ 32 ] It was put to her that she made the posts to get J.C. in trouble, and that she would say anything to achieve this. In re- examination she explained that she made the posts in response to an anonymous message that she received, warning her not to come to court “or else”. This message made her feel frightened.

As well, she testified that J.C., or people on his behalf, continue to post about her and follow her on social media. The posts she made were made in response. [ 33 ] While R.L. was less than forthcoming about the intent of her social media posts in cross-examination, her explanation for the reason for the posts, including the references to others “watching” her and reporting back to J.C. is believable. [ 34 ] The posts have a gloating tone.

However, I do not believe that she was willing to say anything, including what was in the posts, simply to get J.C. in trouble. [ 35 ] Taking into account these areas of concern, I still find R.L.’s testimony overall to be credible and reliable. As previously noted, much of it was internally consistent. In addition, Oscar Brown and Constable Charles corroborated her evidence in key areas. [ 36 ] Oscar Brown had just finished his work shift at the Sobeys next to Scotiabank on Dakota Street. He came out of the store and saw an altercation between a man and a woman in the parking lot. He did not recognize them.

He told the court that he could see the man, who was physically larger, pick up the woman by a backpack she was wearing around her shoulders and repeatedly slam her onto the ground. He heard the man yelling at the woman about stealing. He saw the man eventually get the backpack off the woman, and walk toward a gold-coloured van parked at the nearby Scotiabank. He saw another man standing by the van. He called 911 and sought help from his co-workers. [ 37 ] Oscar’s evidence was credible and reliable. He had a clear line of sight, as the parking lot was mostly empty of vehicles and was well lit.

He was consistent in both direct and cross-examination of what he saw, and although he conceded that distance might affect his assessment of size of the people involved in the altercation, he did not waiver in describing J.C. as the aggressor throughout. [ 38 ] He is an independent witness with no motive to lie. He did not know R.L. or J.C. He immediately assessed the situation as dangerous and called 911. He was fearful of the man turning his attention on him. [ 39 ] He corroborated R.L.’s evidence that she was wearing the backpack, and that J.C. wanted it back.

He corroborated how R.L. described J.C. attacking her. He described R.L. hobbling toward him, asking for help before collapsing. [ 40 ] As with many eyewitnesses observing a traumatic event unfold in front of them, he got some details wrong. He described J.C. as wearing a dark coloured hoodie and pants. As shown in a still photograph taken from a video, J.C. is wearing a long blue t-shirt and shorts. This discrepancy does not detract from the reliability of his observations of the assault.

There is no suggestion that there was a male other than J.C. who attacked R.L. [ 41 ] Constable Sharon Charles is assigned to the WPS Domestic Violence Unit. Her involvement in this case began on August 5, 2022. She investigated the gold van, confirming Paul Prezel as the registered owner. She observed the gold van parked on the street, with the side passenger door open. Looking into the van, Constable Charles saw that the van’s middle row of seats were removed. When Paul Prezel arrived to meet with Constable Charles, she arrested him. [ 42 ] She met with R.L. following her discharge from hospital.

She observed a bandage on R.L.’s eye, bruising to her face and her broken nose. While Constable Charles was interviewing R.L., they received news that J.C. had been arrested by other officers. When she interviewed R.L. a second time, R.L. picked Paul Prezel out of a photo pack prepared by police. [ 43 ] Constable Charles was responsible for obtaining any available video from the Scotiabank. Photographic stills from that video were entered as an exhibit in court. The date and time stamps are incorrect.

Although Constable Charles subsequently tried to clarify or confirm the correct date and time, the reliability of the true date and time was not made clear to the court. [ 44 ] In the photographs, a man is shown entering the vestibule of the bank, and going to the ATM. Constable Charles identified the male as Paul Prezel, who she had met with and arrested in the days following the incident. [ 45 ] Constable Charles also identified R.L. and J.C. in a photograph taken from a video in the Sobey’s parking lot. She did not personally view the video, only the notes and photograph in another officer’s notebook.

[46] I find Constable Charles’ evidence to be credible and reliable. Her testimony corroborated details of Paul Prezel’s van, such asthe colour and the missing row of middle seats. She observed Paul Prezel at the Scotiabank around the time and date of the offence,consistent with R.L. and Oscar’s testimony. Although the explanation as to differential on the Scotiabank video time and date were notthoroughly explained, little turns on this. Time and date were agreed to, and Oscar Brown’s testimony more definitively establishes theseissues.

Officer Charles identified Paul Prezel in the bank vestibule, and Oscar places another male next to the van at Scotiabank at thetime of the attack. [47] Constable Charles’ observations of R.L.’s injuries corroborates the physical injuries shown in the photographs entered as anexhibit, and her description of R.L.’s demeanor during the interview is consistent with someone involved in a domestic violencerelationship. THE LAW [48] J.C. is cloaked in the presumption of innocence. He is not required to call evidence.

For each of the offences for which hestands charged, the burden of proof is on the Crown to establish the essential elements of the offences beyond a reasonable doubt. Aggravated Assault [49] The Crown must prove that, without consent, J.C. applied force to R.L., and that force caused her to be wounded. [50] Wounded means that there is a break in the continuity of skin layers, constituting serious bodily harm. Serious bodily harm isany hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant (R v.

Pootlass 2019BCCA 96 ). [51] The Crown must establish that J.C. had objective foresight of the risk that his actions would cause bodily harm. They are notrequired to prove that he had a specific intent to maim, wound or disfigure (R. v. Godin (SCC), [1994] 2 SCR 484). Assault with a Weapon [52] J.C. is also charged with assault with a weapon. The Crown must prove that in committing an assault, he carried, used orthreatened to use a weapon. It is not necessary to prove that the weapon caused the injuries to R.L.

Break and Enter with Intent [53] The Crown must prove that J.C. broke into and entered R.L.’s home with the intent to commit an indictable offence. Nospecific offence was set out in the Information. [54] Breaking into a place requires the application of some force, however slight, to gain entry. Nothing actually has to be brokenby the force that is applied. Opening, unlocking or unlatching a door involves enough force to count as a breaking. [55] Entering a place is achieved if any part of the person’s body enters or goes into the place. Walking through a door counts asentering.

A person is deemed to have broken and entered if they entered without lawful justification or excuse by a permanent ortemporary opening. [56] A place includes a dwelling house, which by definition includes a building or unit like a townhouse, apartment orcondominium, where people live. [57] The intention to commit an indictable offence relates to accused’s state of mind when he broke and entered the place.

There is apresumption that, absent evidence to the contrary, if an accused broke and entered a place, they did so with the intent to commit anindictable offence. [58] This presumption does not shift the burden of proof. The accused does not have an obligation to prove that they did not intendto commit an indictable offence. Uttering Threats [59] In order to prove this offence, the Crown must establish that J.C. threatened to cause death or bodily harm to any person, andintended the words to be taken seriously.

The Crown need not prove that the intended recipient was made aware of the threat, or if so,that they took it seriously. Kidnapping [60] For the offence of kidnapping, the Crown must prove that J.C. unlawfully took control of R.L. and moved her from one place toanother against her wishes, and did so with the intent of confining her against her will. [61] Kidnapping is an aggravated form of false imprisonment. The element of movement differentiates kidnapping from the lesserincluded offence of false imprisonment.

Kidnapping is a continuing offence that begins with the taking of the victim and ends only whenthe victim is released or consents to detention (R. v. Vu, 2012 SCC 40 ).

[62] A taking is unlawful if the accused had no lawful authority to do what he did. Taking may be done in any of a number of ways,and while it includes physically taking hold of someone, it also includes taking through force or fraud (R. v. Espinola, 2019 ONSC 1177,at paragraph 78). [63] To constitute kidnapping there must be a movement or taking of the person from one place to another and not simply theplacing of the person in the area of confinement (R. v.

Oakley (1977), 1977 ALTASCAD 118 ). [64] Movement, or causing someone to be moved in some manner, is not restricted to picking up and carrying the person from oneplace to another. Movement increases the risk of harm to the victim, by isolating or removing them from the place where detention andrescue may be more likely. APPLICATION OF THE LAW [65] In September 2021, J.C. was bound by a Release Order, prohibiting contact with R.L. The existence and validity of the ReleaseOrder as of August 3, 2022 was agreed to.

He fairly concedes that he breached this Release Order, and the offence is made out. [66] The photographic evidence of the physical injuries R.L. combined with her testimony and that of Oscar Brown and ConstableCharles, establish that the injuries she suffered reflect multiple wounds, causing serious bodily harm. She had a crushed orbital bonerequiring surgery and the insertion of a steel plate in her head; a broken nose; cuts and bruises all over her body; and a split swollen lip,among other injuries.

She was in hospital for treatment, she had to continue to treat her eye injury when discharged, she has enduredsurgeries with more to come, and has only recently regained feeling in her face. [67] I find that J.C. was responsible for inflicting these injuries; not R.L. while in the van, nor are they due to Paul Prezel’s drivingfrom the Hastings apartment to the Scotiabank.

Even if some of the injuries were caused by accident, due to being thrown around in thevan, the severity of the injuries combined with Oscar Brown’s observations of the attack in the parking lot lead me to this conclusion.This was not a consensual fight. [68] J.C.’s actions – punching and hitting R.L. and kneeling on her neck while in the van; once out of the van running at her andknocking her to the ground; repeatedly lifting her up by the backpack and dropping her to the ground; kicking at her head and body; andstepping on her skull while she was prone on the ground – demonstrate an objective foresight that his actions would cause bodily harm.

This was not a momentary lapse of judgement. It was a prolonged, vicious physical assault. [69] The offence of aggravated assault is made out. [70] Regarding the assault with a weapon charge, the Crown’s position is that the elements of this offence are made out, as it is nota requirement that the weapon be used during the assault; only that its use be threatened. Alternatively, viewing the series of events asone long assault, the aggravated assault charge is the one that should proceed. [71] R.L. testified that J.C. showed her a knife that was concealed in his waistband.

Shortly thereafter, he threatened to stab thepeople in her apartment. She also testified that he often acquired knives and would and carry a knife with him. While it was put to herthat the knife may have been put in the backpack, it was not suggested that there was no knife. [72] As I found in relation to the aggravated assault charge, J.C. was responsible for physically assaulting R.L. I believe R.L.’stestimony that while at the Hastings apartment, J.C. showed her the knife in a manner that was intended to threaten. The fact that he didnot use the knife while doing so is of no moment.

The elements of the offence have been made out. [73] When J.C. entered R.L.’s home without permission, he broke into and entered a place. The apartment on Hastings was not hisresidence. He did not have a key. He did not knock on the door, or otherwise seek permission to enter.

Rather, he let himself in throughthe front door, and demanded that R.L. come with him. [74] Having proved that J.C. broke into and entered a place, the presumption in the Criminal Code establishes an intent to commitan indictable offence, unless there is evidence to the contrary. [75] In cross-examination, it was put to R.L. that J.C. went to her house for the purpose of retrieving the backpack that she took. R.L. denied that this was the case.

The evidence supports her rejection of this suggestion: when J.C. was texting her throughout the day,the messages were about her returning to him, not the return of the backpack. Upon entering the R.L.’s apartment, he did not simplypick up the backpack, which was left close to the door, and leave. Rather, he entered, confronted and threatened R.L. and others in thehouse, and demanded R.L. leave with him. [76] I believe R.L.’s evidence that J.C. was angry when he arrived at Hastings. She had ignored his earlier demands that she returnto him. He threatened her, her friend and two small children.

If there was any doubt as to his intentions, it was eliminated when heshowed her a knife that was concealed in his waistband. [77] The offence of break and enter with intent is made out. [78] When in R.L.’s house, and later when both were outside, I find that J.C. did utter threats to cause bodily harm to R.L., S.O., andher two daughters. J.C. knew that S.O. and her daughters were staying at the Hastings residence, and knew they were present there onAugust 3. The nature of the threats – that if R.L. did not come with him, he would hurt her and the people in the house - was notambiguous.

Later, when outside the apartment, J.C. threatened to go back and stab those inside. [79] When specifically confronted by R.L. about whether he would hurt a young child, he indicated if he had to, he would. Hethreated to stab those inside the apartment, which he knew included young children, after showing R.L. the knife. [80] I accept R.L.’s evidence that he said these words to her and intended them to be taken seriously.

[ 81 ] The offence of uttering threats has been made out. [ 82 ] I accept R.L.’s evidence that she did not want to leave her apartment and go with J.C., but that she did so out of fear, after he threatened her, her friend and two small children. I accept that she believed leaving with him would afford S.O. and her children an opportunity to be safe. [ 83 ] Her fear was reflected by her actions of taking off some of her clothing and leaving her possessions behind when she left with J.C.

As she told the court, she felt, in leaving with J.C. that evening that she would die. [ 84 ] I do not believe that J.C.’s statement to R.L. of “Let’s fucking go” was merely an invitation to leave. He was high, he was angry, and he wanted to control R.L.’s movements. He was not inviting her to spend time with him; it was a demand. [ 85 ] R.L. expressly told J.C. that she was not going with him willingly. In telling him that, if he wanted her in the van, he had to open the door, she was not consenting to being detained in the van.

In the context of the events leading up to entering the van, I find that she was acting out of fear and duress. She did not enter the van of her own volition. [ 86 ] Her fear for what J.C. might do to S.O. and her children was also reflected in her willingness to take a physical beating from J.C. while in the van, rather than give him his phone back, and in her willingness to subject herself to the assault in the parking lot for as long as possible in order to give S.O. more time to protect herself. [ 87 ] I reject the argument that, as Paul Prezel was the one driving both J.C. and R.L. were under his control.

Paul Prezel and J.C. were working together in taking R.L. J.C. consented to being in the van. R.L. did not. [ 88 ] In making the threats, demanding R.L. accompany him knowing that she did not want to leave, taking her away from her home and confining her in Paul Prezel’s van as they travelled from the Hastings apartment to Scotiabank, the offence of kidnapping has been made out.

CONCLUSION [ 89 ] I find J.C. guilty of aggravated assault of R.L., assault with a weapon, break and enter with intent, uttering threats against R.L., S.O. and her two young daughters, kidnapping, and failing to comply with conditions of his Release Order. “Original signed by” Frederickson, P.J.