R. v. Thibault, 2012 ONCJ 73

Citation: R. v. Thibault , 2012 ONCJ 73 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL THIBAULT Before Justice H. Borenstein Heard on October 19, December 1, 2011 and February 9, 2012 Reasons for Judgment released on February 14, 2012 Mr. M. Savage ........................................................................................................... for the Crown Mr. J.

Weisz .................................................................................... for the accused Daniel Thibault BORENSTEIN J.: [ 1 ] Daniel Thibault and his girlfriend Natasha Siena live in a rented basement apartment located in a house. Ms. Hemraj owns the house and lives upstairs with her daughter Roxanne and others family members. [ 2 ] The Thibault tenancy has been difficult. Ms. Hemraj alleges that Mr. Thibault has not paid his rent. [ 3 ] Ms. Hemraj sought an Order from the Rent Tribunal evicting Mr. Thibault and Natasha Siena. Instead, the Tribunal ordered that Mr.

Thibault pay the rent that he owed. [ 4 ] On December 3 rd , Ms. Hemraj delivered that Order to Mr. Thibault by slipping it under his apartment door. He was home at the time with Natasha. Mr. Thibault’s father Daniel Grant may have been there as well. [ 5 ] The Crown alleges that, upon seeing the Order, Mr. Thibault angrily confronted Ms. Hemraj and threatened to kill her and burn down the house. Roxanne went downstairs and confronted Mr. Thibault. According to Roxanne Mr. Thibault denied threatening Ms. Hemraj and taunted her to try to evict him. Ms. Hemraj called the police. The police attended six hours later.

Mr. Thibault was arrested and has not lived at the house since. [ 6 ] I heard from Ms. Hemraj and her daughter Roxanne. I also heard from Daniel Grant and Natasha both of whom testified that no threats were made. [ 7 ] The contents of Ms. Hemraj’s call to 911 were read into the record and both counsel agree that those comments were made by Ms. Hemraj. Ms. Hemraj’s evidence [ 8 ] Ms. Hemraj alleges that Mr. Thibault angrily confronted her about the Rent Tribunal’s Order as she was taking out the garbage.

In cross examination, she recalled that the confrontation actually occurred after she slipped the Order under his door. [ 9 ] Thibault claimed that he never received notice of the hearing and began swearing at Ms. Hemraj. He told her he would not pay the rent and would not leave the house. He said that no one would evict him in the winter. He then said that, if he had to leave, he would burn her house down and kill her. He told her that he would kill her in her house or at the bus stop as he knew her schedule. He also told her she should go back to her own country. She replied that this was her country. Ms.

Hemraj ran upstairs and, as she did, Mr. Thibault reached out to grab her. She called 911 from her apartment upstairs shortly thereafter. [ 10 ] Ms. Hemraj testified that Mr. Thibault’s father was not at the apartment that day. However, she conceded that she did not look inside Thibault’s apartment. She did hear Natasha in the apartment. [ 11 ] Ms. Hemraj told the 911 operator that Mr. Thibault threatened to beat her up. She did not tell the operator that he

threatened to kill her or to burn her house down. The police arrived six hours later. Ms. Hemraj and her family remained home for most of that time. When the police arrived, Ms. Hemraj and Roxanne gave statements to the police. Mr. Thibault was arrested and was not allowed back into the home. Roxanne Muneem [ 12 ] Roxanne testified that she was upstairs in her mother’s apartment and heard the threats downstairs.

The apartment door was open which led to the stairway to the basement unit. [ 13 ] Roxanne testified that she heard Thibault say to her mother that he was not going to pay “any fucking money” and dared his mother to call the sheriff. [ 14 ] Roxanne then heard Thibault say “ I am going to kill you Gloria, if I don’t get you at the house, watch your back at bus” [ 15 ] Her mother returned upstairs and slammed the door. Roxanne asked her mother why she slammed the door. Her mother told her that Thibault tried to beat her up. Roxanne went downstairs and knocked on Thibault’s door and asked him what his problem was.

He replied that his problem was with Roxanne’s mother, not with Roxanne. He said he would not leave and would not pay his rent. Roxanne testified that she asked Mr. Thibault why he was threatening her mother and he denied threatening Ms. Hemraj. He then returned inside his apartment and slammed his door shut. [ 16 ] Roxanne testified that she heard Natasha in the apartment trying to calm Thibault down. In cross examination, she admitted that she did not tell the police that Natasha was trying to calm Thibault down.

She did tell the police that Thibault threatened to kill her mother but did not tell them that he threatened to burn down the house. Roxanne testified that she did not see nor hear Thibault’s father at the apartment. Daniel Grant [ 17 ] Thibault’s father Daniel Grant testified that he was in his son’s apartment at the relevant time and heard everything. He could not see the exchange at the door as he remained in the living room and did not go to the front door during the commotion.

He testified that he heard the incident and that no threats were uttered by his son. [ 18 ] He testified that he heard a letter slip under the door. His son went to the door to retrieve the letter. Natasha remained in the living room, [ 19 ] Ms. Hemraj accused Thibault of having the neighbour’s mail. Thibault replied “look” and showed Hemraj that he had only his own mail. [ 20 ] Grant testified that his son then saw an envelope from the Rent Tribunal and said – “oh we are going to court” and then opened that letter. [ 21 ] Ms.

Hemraj and her daughter were now both downstairs and they began yelling and swearing at Thibault. Thibault responded “oh I guess we are going to court”. Thibault then commented that this was a judgment from the Rent Tribunal and that he never received notice of the hearing. Ms. Hemraj began swearing at Thibault. Roxanne was also yelling. Natasha shut the apartment door. [ 22 ] Ten minutes later, Mr. Grant took Natasha and his son out for lunch and then drove them to look for a new apartment. He then returned them to their apartment. [ 23 ] Just before 6 p.m., he received a call from Natasha.

Natasha had the call on her speaker phone from the apartment. The police were at the apartment and Thibault was going to be charged with threatening. [ 24 ] Grant testified that he did not know any of the details of the alleged threat including when it occurred until he attended the police station later that evening. [ 25 ] However, he also testified that he told Natasha during that phone call that he would go to the police station and give the police a statement telling them that his son did not do anything wrong. [ 26 ] When Mr. Grant was challenged on this in cross examination, his evidence changed.

He testified that he asked Natasha when the threat allegedly occurred and she told him it occurred when he was at the apartment. [ 27 ] He also added that, during the incident, Ms. Hemraj said that she would get Thibault out of the apartment “one way or another”. This was not mentioned in his evidence in chief and was not put to the Crown witnesses. Natasha Siena

[ 28 ] Natasha Siena testified that there were no problems with the tenancy; she and Thibault paid their rent. The only problem was Ms. Hemraj who seemed to have a problem with Mr. Thibault. [ 29 ] She then testified that Thibault was withholding his half of the rent allegedly due to problems with the rental unit. They expected to be taken to the tribunal [ 30 ] She testified that she was in the apartment with Thibault and Grant when Ms. Hemraj knocked on the door and slipped the mail under the door. Both she and Thibault went to the door and saw the letter. She read it aloud.

Hemraj then knocked again and, even before the door was answered, Natasha told Thibault to stay calm and relax. [ 31 ] According to Natasha, it was Hemraj who was yelling at Thibault wanting to be paid while Thibault remained calm. Thibault never said anything like – oh, so you are taking me to Court. [ 32 ] Roxanne came downstairs as well. Both Roxanne and Hemraj then left. [ 33 ] The police eventually arrived and arrested Thibault. They would not say why they were arresting him. Thibault asked Natasha to call his father.

She did and the father said he would go to the police station. [ 34 ] That was the evidence called. [ 35 ] The Crown submits that it has proved its case beyond a reasonable doubt. The Crown witnesses were credible and reliable. To the extent that Ms. Hemraj did not tell the 911 operator the details of the threats, that is not important as that was not a full statement of what occurred, [ 36 ] The defence submits that there exists a reasonable doubt in this case. Even if I disbelieve the defence witnesses, and their evidence does not raise a doubt, there remains a doubt based on the Crown witnesses’ evidence.

Findings [ 37 ] Has the Crown has proved beyond a reasonable doubt that Mr. Thibault uttered either of these threats? Mr. Thibault is presumed innocence. He does not have to prove anything least of all, his innocence. If there is any doubt about his guilt, he will be found not guilty. [ 38 ] Given that defence evidence was called, I will begin my reasons with my assessment of those two witnesses. If I believe either or both witnesses that Mr. Thibault did not utter the alleged threats, Mr. Thibault will be acquitted.

Even if I do not believe either or both witnesses in that regard, if there evidence, individually, or in combination, or in the context of all of the evidence raises a reasonable doubt about whether Mr. Thibault uttered these threats, Mr. Thibault will be acquitted. [ 39 ] Let me begin with Daniel Grant’s evidence. I completely reject his evidence. It does not raise a doubt as to its truth. [ 40 ] Mr. Grant intended to go to the police to tell the police that his son did not commit this offence even before he knew when this threat allegedly occurred. His evidence was clear at first.

He had no idea when the alleged threat occurred while he was speaking to Natasha on the phone. He only learned about it once he attended at the police station. That is reason enough for me to disbelieve his evidence. When confronted with this fact in cross-examination, his evidence changed dramatically. When the illogic of his evidence was put to him, he testified that he explicitly asked Natasha when it occurred and she told him. [ 41 ] Beyond that, I think it is highly unlikely that a father would remain in the living room and not approach the front door when this type of commotion was occurring.

Assuming that he did remain in the living room as he testified, then he would not have been able to describe the details of what occurred at the door as he did in his testimony. For example, he testified that his son showed Ms. Hemraj that he only had two envelopes when she said he had the neighbour’s mail. Further, Mr. Grant testified at Thibault’s bail hearing that a neighbour was out in the hallway and witnessed the incident. Yet, had he remained in the living room, he would not have been in a position to see the neighbour either.

There are inconsistencies between his evidence and Natasha’s evidence concerning the events at the door as well, including who approached the door and what was said. [ 42 ] I completely reject Mr. Grant’s evidence even apart from the inconsistencies with Natasha’s evidence. [ 43 ] As for Natasha Siena, while she testified that no threat occurred, the most telling aspect of her evidence was that, even before they opened the door, she told Thibault to stay calm. She tried to qualify or back-peddle from that statement but that evidence fits with the rest of this case and what was occurring that day.

Thibault was receiving an Order from the Rent Tribunal. Roxanne and Ms. Hemraj testified that Thibault was yelling violently. Roxanne testified that she heard Natasha trying to calm Thibault down. Given that context, Natasha’s evidence that she told Thibault to calm down and relax, even before the door opened, strongly reveals Thibault’s state before he confronted Ms. Hemraj.

While Natasha was not caught in any internal inconsistencies, given the dynamic of what was occurring on scene, given her comment that she was telling Thibault to relax and stay calm, I reject her evidence as an attempt to protect her boyfriend and place no weight upon her testimony at all. [ 44 ] Turning to the Crown’s case, I found both Ms. Hemraj and Roxanne to be credible witnesses. Two things concerned me about their evidence however, First, they were clearly, and justifiably, motivated to evict Thibault from their home. He was not paying rent.

He seemed to be familiar with the workings of the Rent Tribunal, taunting them to try and evict him in the winter. Given that context, they had a strong motive to allege these threats. That motive alone would not be fatal to the Crown’s case. However, that combined with the fact that Ms. Hemraj never mentioned the threats in issue to the 911 operator do cause me to have a doubt about whether they were made. It seems reasonable to assume that, if someone had just been threatened with death and a threat to burn down their house, they would mention those threats when immediately calling the police.

While it is possible that they would neglect to mention those threats, their motive combined with the failure to mention those threats just after they occurred in a call for help to the police together cause me to have a reasonable doubt about whether these threats were made.

[ 45 ] Accordingly, while I prefer the evidence of the Crown witnesses, I am not persuaded beyond a reasonable doubt. Released: February 14, 2012 Signed: “Justice Borenstein”