R. v. Marshall, 2010 ONCJ 742

Sault Ste. Marie COURT INFORMATION No. 1013 Citation: R. v. Marshall , 2010 ONCJ 742 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) David Kirk, ) for the Crown ) — AND — ) ) ) lyle andrew marshall ) Ross Romano, ) for the accused ) ) ) ) HEARD: July 6 & 22, August 23 & 24, November 26, 2010 kukurin j. [ 1 ] This is a decision following a multi-day trial, on three of ten counts against the accused. Three of the charges relate to events on April 16, 2010. Seven others are alleged to have been committed on April 18, 2010.

All ten charges are with respect to offences involving the same victim, the former common-law partner of the accused. [ 2 ] Guilty pleas have been entered on seven counts. Sentencing has been deferred on these pending a finding of guilt, or an acquittal, on the remaining three. The following table displays the offences: Offence Date Offence Type Offence Details Plea 1. 16 April 2010 Breach Recog. Abstain communication with victim G 2. 16 April 2010 Breach Recog. Remain 100 m. from victim’s home G 3. 16 April 2010 Breach Recog. Access to child only by family court order G 4. 18 April 2010 Breach Recog.

Abstain communication with victim G 5. 18 April 2010 Breach Recog. Remain 100 m. from victim’s home G 6. 18 April 2010 Breach Recog. Not molest, harass, interfere with victim G 7. 18 April 2010 Sexual assault on victim NG 8. 18 April 2010 Utter threat to victim to kill victim NG 9. 18 April 2010 Break and Entry to victim’s home NG 10. 18 April 2010 Theft Under of victim’s laptop computer G The Crown proceeded by indictment. The accused elected trial in the Ontario Court of Justice. The accused was arrested on or about April 18, 2010.

He has been detained in custody to date, almost eight months. background [ 3 ] The fact that six of the ten offences involve breaches of recognizance of bail conditions implies the existence of some factual background. Indeed there is, and it is of importance in appreciating the context of the ten offences before this court. [ 4 ] The victim is the mother of two daughters who reside in her care and custody. The first, Skyler, age two years, is the child of a former relationship. Her younger child, Hannah, is the daughter of the accused. [ 5 ] The victim and the accused began their relationship in September 2008.

They began cohabiting in June 2009. By then, the victim was pregnant with Hannah. Their cohabitation relationship was short lived, and the accused moved out by mid-December 2009. Hannah was born in January 2010. During the time that the relationship was on-going, including during the half-year of cohabitation, the accused developed a relationship with the child Skyler. Apparently, he continued that relationship in an informal access context, which, on occasion, involved overnight visits by Skyler. After Hannah was born, he began to see Hannah as well by way of access visits.

These were apparently restricted to daytime access only because of Hannah’s young age. For some reason, not explained in the evidence, the local Children’s Aid Society was involved with one or both of these children. Although there was no child protection proceeding, there was an open file and an assigned child protection worker.

[ 6 ] The involvement of the society apparently escalated in February 2010 when Hannah was about one month old, as a result of an alleged threat by the accused directed towards the victim. The circumstances of that alleged threat were not made known to this court. However, what was introduced through the evidence was sufficient information to infer that: (

a) the accused was arrested; (

b) the accused was charged with threatening; (

c) the accused was released on March 5, 2010 on a recognizance of bail with multiple conditions; (

d) the accused pleaded not guilty to this charge of threatening; (

e) the trial of the charge of threatening has commenced before another judge of this court, and has been adjourned for continuation at some later date; (

f) the release of the accused on bail was with a surety, his grandmother, and subject to a condition that he reside with her. [ 7 ] With the threatening offence hanging over his head, and with his bail release conditions in full force, the accused attended at the victim’s home in the morning of April 16, 2010. There is some contradictory evidence from the victim and from the accused as to what took place that morning. There is no disagreement, however, that when the accused left, he took with him the child Hannah, and the diaper bag containing an assortment of items required for the care of infants.

His intention was to have an access visit with the child [ 8 ] Shortly thereafter, the victim called both the Children’s Aid Society and the police. A worker from the former located Hannah, retrieved her, and brought her back to the mother. The police apparently issued a warrant for the arrest of the accused as he had breached at least three of his bail release conditions by going to the victim’s home and taking Hannah. The diaper bag did not accompany Hannah back to Hannah’s home. All of this took place on April 16, 2010. [ 9 ] What the accused did on April 17 th is not entirely known.

It seems a reasonable inference that he did not sleep over at this grandmother’s where he was bound to reside. She was interviewed by police at about 10:45 in the morning of that day. She was aware of the warrant that had been issued for the accused. A friend of his had already called her on his behalf asking for a change of clothing, for some money, and for cigarettes. She refused, and indicated to the accused’s friend that she was going to see a justice of the peace to revoke her suretyship. [ 10 ] Did the accused surrender himself to the police? He did not.

He was still in possession of the diaper bag with Hannah’s diapers and formula and creams. The evidence is contradictory with respect to what transpired on April 17 th . Larry, the brother of the victim, and a friend of the accused, figures in the accounts of both of them. The accounts differ. Unfortunately, Larry was not called as a witness. [ 11 ] According to the accused , Larry called on his cell phone to the home of Rhonda Cory, where the accused was staying. He spoke to the accused for a time, then passed his cell phone to the victim, his sister, who was with him.

In the ensuing conversation between the accused and the victim, the victim communicated three things: (

a) that she wanted the accused to come to her home and spend that night with her; (

b) that she wanted the accused to bring back the diaper bag; and (

c) that she wanted the accused to check in the diaper bag to see if her wallet was there. [ 12 ] According to the victim , she denied calling the accused, trying to get him to drop off the diaper bag. She denied calling to Rhonda Cory’s home for this purpose. In fact, she stated her belief that the diaper bag would be returned to her through her brother Larry. She claimed that she had been told by Larry on April 17 th that the accused was giving the diaper bag to Larry, and that Larry would be bringing it to her.

The victim rejected the suggestion of defence counsel that she had asked the accused to come to her home that night, not just to drop off the diaper bag, but “for more than that”. She denied that she expected him to come over that night. She dismissed the suggestion that she planned to have intercourse with him, and she spurned the implication that she had consensual sex with the accused. the law [ 13 ] This case is no different than many others that involve sexual offences. The only witnesses are the participants. Much of the case is in the accounts given by these two individuals.

It becomes the classic “he said – she said” paradigm. Credibility becomes a major issue in such cases. [ 14 ] The only case cited by counsel was the oft quoted W. (D). [1] decision of the Supreme Court of Canada which, coincidentally, also involved a charge of sexual assault. The case revolved around the issue of credibility in the context of reasonable doubt as to guilt. Cory J. developed what has become a trial judge’s checklist: “Firstly, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do not accept, you are convinced beyond a reasonable doubt by that evidence of guilt of the accused.” evidence of the accused [ 15 ] Rarely would the entire testimony of a witness be rejected. Most witnesses give many answers to many questions. Some are inconsequential. Some are not.

What is of importance is what the witness says about the factual events that are in issue in the case, that are relevant to the determination of guilt or innocence. [ 16 ] In the present case, the central issue is whether the sexual intercourse between the accused and the complainant was consensual as the accused claims it was. [ 17 ] I do not believe the evidence of the accused on this point. In fact, his evidence does not raise in me any reasonable doubt as to his guilt.

There are reasons for my scepticism about the accused’s truthfulness on this critical point. [ 18 ] Firstly, the accused admitted at trial that there were times when he didn’t tell the truth. In fairness, he stated this in the context of his interview by the police. However, the interview was in connection with the events of April 18, 2010. Specifically, he told police that he had tossed the laptop computer that he had taken from the victim’s home into a dumpster not far distant from her home.

This was a complete fabrication by the accused who knew full well that the laptop was in his backpack that he had left at the home of his friend from where he had been arrested. At trial, the accused was cross-examined on what he had reported to the police. During this cross-examination, he was confronted with a portion of his video statement in which he gave a detailed description of what he had done with the laptop, and where it was jettisoned. This was an elaborate lie. It was spun out very credibly. There was no hesitancy, no fumbling for details, no awkward pauses.

Nor was the lie admitted, even when the police informed the accused that officers would be sent out to check the dumpster. What this shouts out very clearly is that the accused is not only a liar, but an accomplished liar. It also confirms that he has no compunction in brazenly lying to authorities investigating offences with which he is charged. [ 19 ] Secondly, and somewhat related to his falsification to the police, is his disdain for the justice system. It is abundantly clear that the accused paid absolutely no heed to judicially imposed conditions of his recognizance of March 5, 2010.

He deliberately disregarded three of those conditions on April 16 th . On the night of April 17 th , or in the early morning hours of April 18 th , knowing full well that an arrest warrant had been issued because he had gone to the victim’s home on the 16 th , he once again went to her home. When he left there, he did not go to his grandmother’s home where he was required to reside by the terms of his recognizance. He spent the rest of the night at Rhonda Cory’s home. Nor did he turn himself in when he became aware of the arrest warrant. He ignored this also. The police had to locate him and arrest him.

He was totally inconsiderate of his grandmother who was surety for him, and who was liable to become indebted to the extent of $1,000 if he breached any of the conditions of his bail release. The accused behaved as if he was completely free to do as he wished. This very cavalier attitude is undeniable, particularly as he has since pleaded guilty to his breach of recognizance offences of both the 16 th and the 18 th of April. From all of this, I draw a very pejorative inference of the accused. He is untrustworthy. His promises are worthless. What he says is unreliable. He is completely centered on himself.

It is difficult to believe anything that he says. [ 20 ] Thirdly, there are several instances of inconsistencies in what he tells the police and what he says in his testimony at trial. This is of some importance as he had had only very little time between his arrest and his interview by the police. By the time he testified at trial, over seven months had gone by, plenty of time to have given considerably more thought to his story. [ 21 ] The most notable discrepancy was in his reason for going to the victim’s home on the 18 th of April.

He told the police that he wanted to see the girls (Hannah and Skyler) and he wanted to return the diaper bag. However, at trial, his story was that he was invited by the victim to come to her home, to spend the night, and to engage in sexual relations. He told none of this to the police. This omission was very odd, particularly as it would be the more obvious justification for his going to the victim’s home. It seems to me that the reasons he gave to the police were fairly tepid in hindsight. Who, after all, visits one’s children at 2 a.m.?

And if the accused really felt that his daughter needed the contents of the diaper bag, why a delay of over 24 hours before it was returned? [ 22 ] There were other examples of inconsistencies, or at least discrepancies, in what the accused said at different times. At one point, he professes his love for the victim as the reason why he keeps returning to her home.

At another, he tells police that the children are his “whole life”, that he “doesn’t give a shit about the victim” and that she “can go fuck herself”. [ 23 ] The accused denied in his trial testimony that he was upset when he arrived at the victim’s home on the 18 th of April. However, in his video statement to police, he said just the opposite, mainly, that she was on the computer and that this upset him to the point that he closed up the cover of the laptop. [ 24 ] Fourthly, some of what the accused recounted was implausible, farfetched, and very difficult to believe.

He admits that he removed two cordless telephones from the victim’s home as well as the laptop computer and its power cord. Why did he take these telephones? According to him it was to prevent the victim from calling the police, since she had called the police on him on prior occasions. However, the accused knew that there was another telephone set upstairs in the victim’s home, one that he did not remove. He was well aware that it could be used to make outgoing calls. His reason for taking the portable telephones makes no sense.

It is illogical. [ 25 ] Moreover, he explains that when he left the complainant’s home on April 18, 2010, he rode his bicycle with the laptop held on his handlebars, and with the cordless telephones in the pockets of his jeans. He rode to the home of Larry, the brother of the victim. There, he deposited the telephones in Larry’s mailbox. Based on the totality of the evidence, this must have been at some time between 2 a.m. and 4 a.m. on the 18 th of April. The accused then went to the home of Rhonda Cory where he slept. He had necessarily to go out of his way to stop by Larry’s home. Why did he do that?

His explanation at trial was that he was going to get Larry to return to the victim both the cordless phones as well as her laptop. If so, why didn’t he just hang onto the cordless phones? Why did he even bother to go out of his way to drop them into Larry’s mailbox? If he was going to see Larry to hand over the laptop, he could just as easily have handed

over the cordless phones at the same time. This account by the accused again makes no sense at all. [ 26 ] Perhaps the most cogent reason for rejecting the accused’s version of what transpired is his description of the sexual relations and his denial that he struck or even pushed the victim, juxtaposed to her account and to the physical injuries on her body that were verified by a Sexual Assault Care Centre (SACC) nurse and recorded in coloured photographs no more than six to eight hours after the sexual intercourse.

The accused insisted that he was gentle during the sexual acts, that he was attentive to the victim’s sexual needs, that he was making sure that she was not in any discomfort, and that he was not forceful with her during their lovemaking. [ 27 ] This is completely the opposite of the victim’s version of what went on.

She claims that he restricted her arms, immobilized her legs to the point that her body was bent like the letter “U’, that he sexually penetrated her against her will, and paid no attention to her ineffectual resistance, both verbal and, when she could get an arm or two arm free, physical. [ 28 ] The SACC sex kit was inconclusive as to whether sexual intercourse was or was not consensual. However, the physical injuries on the victim’s body are consistent with her account of being raped and are inconsistent with the gentle, considerate love making described by the accused.

These injuries were primarily abrasions to the shoulder blade area of the victim’s back and bruises on the tricep and bicep area of her arm. In addition, there was a puncture wound in the right cheek temporal area consistent with a bite by the accused described by the complainant. The back abrasions were consistent with the victim’s explanation of friction between her back and the sofa material when the accused was restraining her and she was struggling to stop him.

The arm bruising was consistent with his conduct in restraining her arms forcefully. [ 29 ] The existence of these documented injuries is not otherwise explained. They are extrinsic evidence that support completely the sexual assault scenario recounted by the victim in her evidence at trial. Conversely, they are unexplained by the events described by the accused. Neither his description of their actual sexual encounter, nor his narrative of their disagreement after he changed Hannah’s diaper and called the victim a “slut” can adequately explain these injuries on the victim’s body.

He was adamant that he never struck the victim. That he never hit her at any point. That he is totally against such conduct and that he doesn’t do that. The inference I draw is that the account given by the accused is not truthful. evidence of the complainant [ 30 ] The W.(D.) analysis does not stop with the evidence of the accused. In every criminal prosecution, the onus is on the Crown to prove the charge with admissible evidence, and to do so beyond any reasonable doubt.

In short, does the evidence which is found to be credible meet this standard so as to justify a finding of guilt of the accused? [ 31 ] At the outset, it should be noted that the evidence of the SACC nurse including the photographs of the victim’s injuries was totally credible, to the extent that it went. [ 32 ] It is the victim’s testimony at trial, however, that represented the mainstay of the Crown’s case against the accused. That evidence was not faultless.

It had some soft spots that the defence understandably attacked. [ 33 ] The victim had given a statement to the police following the morning happenings of April 16, 2010. In that statement, she apparently told the police that she had had a prior discussion with her sister Louise with respect to the exercise of access by the accused that day with Hannah. At trial, the victim initially said that her discussion about the accused’s access had been with her brother Larry.

Ultimately, in cross-examination, she conceded that she had spoken to both and couldn’t remember whether she had this discussion with only one or both of her siblings. Her last comment on the subject was “... I was assuming it must have been Larry ...” [ 34 ] This was a legitimate attack on the credibility of the victim. However, the effect was not so much to create some doubt in the veracity of what she had discussed as it was to show some uncertainty in her recollection as to the person with whom she had had the discussion. Nothing in the case turned on the contents of the discussion in question.

This was not an example of a memory so deficient that anything recollected by this victim must be suspect. The evidence established that the victim spoke often to both her sister and to her brother, and that they were both on relatively amicable terms with the accused.

In such circumstances, it would not be out of the ordinary to lose track of the sibling with whom the victim had had a particular conversation, especially one that, at the time, may not have been particularly noteworthy. [ 35 ] A more aggressive attack on the victim’s credibility was launched in connection with her account of how the accused entered her home in the early morning hours of April 18 th . The story recounted by the victim at trial places her in her doorway, with the door halfway open behind her, and her hand holding onto the door.

At this point, the accused is still standing outside, presumably facing her. When she asks him to leave, he refuses. He then pushes on the door with all his force causing it to fly fully open and causing the victim to go flying backwards about ten feet. He then enters her home. [ 36 ] The submission of the accused is that this story is simply unbelievable. It is impossible that the accused flew backwards ten feet simply by having her hand on the door. Her tale is a gross exaggeration. It ought not be believed. Moreover, the victim confirms she was scared at this juncture.

But she does not even think about calling the police. What does she do? She walks over to the couch and sits on one end of it – with the accused sitting on the other end. [ 37 ] I do not agree that the victim’s version of what happened at the victim’s doorway was impossible, or even improbable. I did not consider it a gross exaggeration at all. To be thrown off balance and stumble backwards ten feet is not at all implausible if one is holding onto a door that is suddenly and forcefully flung open. That the accused may thing otherwise does not make what he thinks correct.

Nor does his disbelief of the victim’s story make her any less credible. His attack on her credibility on this incident is totally ineffectual.

[ 38 ] There are several other areas in the victim’s testimony that are impugned by the accused. Her willingness to speak with the accused by telephone even after the sexual assault incident was said to be inconsistent with any sexual assault, physical assault, death threats and break-in having taken place. The victim’s response that she wanted to know what he wanted, and that as the father of Hannah, he still had a right to know how Hannah was doing, was suggested to be an inadequate explanation for her fielding the accused’s calls.

The more logical explanation was that the break and entry, physical and sexual assault and threats were fabrications and simply had not happened. I don’t believe the inference sought by the accused is the appropriate one to make. This is not a break-in, sexual and physical assault and threat alleged to have been perpetrated by a complete stranger. The parties were former common-law spouses. He stood in loco parentis to her older daughter for half a year and is the biological father of her second child.

The mother had spoken with the accused by telephone even before the incidents of April 16 th and April 18 th , even though she had accused him of threatening her back in February. In fact, she had even considered, for a short time, a possible reconciliation with him.

With this background, I do not find it unusual that she would continue to speak to him on the telephone, particularly since he was in custody during these telephone calls, and it was he who was making the calls to her. [ 39 ] The greatest assault on the credibility of the victim, however, was in the description she gave at trial of the sexual assault incident (or incidents, as there were two). This description is of events that are not peripheral to the charge of sexual assault. They are central to this charge and constitute the critical actus reus .

Accordingly, what the victim said about what happened is extremely important. [ 40 ] The main thrust of the defence submissions was that the victim’s account was totally unbelievable and just did not make any sense. The victim recounted the several events involved in the sexual assault.

These included being laid down on her back lengthwise on the couch, having her arms restrained above and behind her head, having her legs placed on the accused’s shoulders, one on each side of his head, being bent at the waist so that her legs were in the air, and having her clothes (including pants, top, bra and underwear) totally removed by him. It was not just her clothing that was removed by the accused. She stated that he removed all of his clothing as well, and did so in the same time frame that all of the foregoing was taking place.

The victim maintained that throughout this time, she was neither docile nor compliant with what the accused was doing. She claims she managed to free one arm at one point and was hitting at him with it. She said that she was resisting him, struggling to move her legs away from him, but, according to her, they remained on his shoulders throughout, including during the act of sexual penetration.

She also described other things that the accused apparently did during this incident including sucking on her exposed breasts, digitally fingering her vaginal area and masturbating himself to achieve an erection. [ 41 ] After this sexual intercourse was completed, and the accused got off of the victim, she got off the couch to retrieve her clothing. In fact, she had her pants in her hand when, according to her narrative, the accused took them away from her, threw her down on the couch, and started it all over again.

The victim admitted in cross-examination that there was no change whatsoever in how the second incident played out. There was no difference from the first occurrence to the second. It was the identical thing twice. The only variation that she recalled was that in the first incident, the accused did not ejaculate. He did in the second. [ 42 ] The other testimony of significance was with respect to the duration of this occurrence at the victim’s home.

The victim apparently indicated in her statement to the police that the sexual assault lasted for two and a half hours. [2] In cross-examination at trial, she admitted that she recalled having made that statement. It was unclear whether she was referring to the duration of the actual assaultive behaviour or whether she was referring to the entire time that the accused spent at her home from entry to exit. [ 43 ] The victim’s description of the actual sexual assault became more inconceivable as the cross-examination continued.

Her story invited the listener to believe that the accused was restraining her arms with one hand, leaving only one of his hands free to do all of the other things that she says he did. She was insistent, confirming more than once, that her legs remained on the accused’s shoulders through the entire first episode. This was very difficult to envisage. Her testimony began to become downright astounding when she said that the accused disrobed her completely while she was in this position.

It was even more astonishing that her legs remained where she says they were while he was taking all of his clothes off. [ 44 ] Had the cross-examination ended at this point in the narrative of events, there would likely have been some reasonable doubt as to what truly had occurred. However, the victim was questioned further and provided more details as to the events that had taken place. One significant detail is that the accused released the victim’s wrist, leaving him both hands free to disrobe her.

This makes a big difference in understanding how he managed to take her clothes off, particularly when, at one point, with both her hands free, she was holding onto her pants to prevent him from taking them off. She answered in response to another question that she “kept getting her hands free”. Clearly, her hands were not completely restrained throughout the entire incident. [ 45 ] Accordingly, with this qualification to her testimony, it appears that during the course of this incident, both his hands became free and both her hands became free. However, she says her legs were restrained throughout. Or were they?

In fact, they were not. She agreed when questioned in cross-examination, that her legs never left his shoulders. However, only four questions later, she said that she didn’t remember if the accused continued to hold her legs while he was taking her pants off. As the cross-examination continued, the victim explained that, at one point, when the accused was taking his clothes off, her legs were no longer on his shoulders. She had gotten her legs free.

This makes her story of his disrobing himself much more plausible. [ 46 ] As for the specific sexual acts of the accused, the victim’s account of these is much easier to accept. Having regard to the fact that he was on top of her, with his knees on either side of her body, with her legs pinned over his shoulders, with her body “folded in half virtually”, it is much easier to understand how the accused could “finger” her vagina, and masturbate himself and effect coital penetration. [ 47 ] Did he do the identical thing a second time? It may have been similar but not identical.

For one thing, there was no disrobing involved in the second round since both victim and complainant were already naked. Nor would there have been all of the struggling that was involved in the first episode with his attempts to take the victim’s clothing off and her attempt to stop him from doing so. While it might be engaging somewhat in speculation, I suspect that the victim’s resistance during the second episode was much less forceful.

[ 48 ] Do I accept the story of the complainant? Does it meet the evidentiary standard? I do accept what she says happened. One of the realities of this case is that both victim and accused agree on several factual events: (

a) There was sexual intercourse; (

b) There were two episodes of this; (

c) They took place in the living room on the living room sofa; (

d) The accused was at the victim’s house for some time, perhaps up to two or two and a half hours. [ 49 ] The detailed account of the victim, when reviewed in its totality, is credible. The court has to keep in mind that the victim was not a detached, objective observer of events in her living room in the early morning hours of April 18 th . She had already been startled into a state of some degree of fear by the accused’s forceful entry into her residence. The sexual assault had a significant component of physical assault.

When a person is being physically attacked, the mind is not likely to be focussed on the choreographic details of what is taking place. This is particularly so when the person being attacked is physically resisting. The victim stated that she was crying and screaming. Clearly she must have been in an elevated emotional state. It is a reasonable expectation that she would later be able to recount the major elements of the event. Perhaps she wasn’t totally accurate with details. That is understandable in the circumstances.

Overall, I accept her story that the sex was not consensual between her and the accused. [ 50 ] The evidence of her physical injuries from an independent source (SACC) is consistent with her account of what happened. This evidence lends credence to her version of events. [ 51 ] Accordingly, on the W(

D) analysis, I find the accused guilty of the offence of sexual assault. I am satisfied, having regard to the evidence of both the crown and the accused, of the guilt of the accused on this offence beyond a reasonable doubt. [ 52 ] It is possible that I could reach an opposite finding with respect to the break and entry charge as well as to the threatening charge. However, I do not. My finding with respect to the credibility of the accused is no different with respect to these two offences than it is with respect to the sexual assault offence.

I have no reason to disbelieve what the victim says happened when he entered her home. I did not agree that her story about this was either incredible or implausible. She testified that the accused threatened to come back to kill her if she called the cops. She claimed that he said this before he left her home. This appears more than believable. The accused had, according to her, threatened to hit her if she didn’t stop struggling and hitting him when he was in the process of sexually assaulting her. The accused had taken her portable phones and put them into his pockets and did, in fact, leave with them.

Her evidence is that she was in the process of calling 911 when he pulled the phone cord out of the phone jack thus disconnecting the line.

In these circumstances, and keeping in mind that there was an outstanding arrest warrant for the accused of which he was quite aware, and that the victim had called the police on him previously, the most recent occasion less than two days previously, it is not at all improbable that he would have made such a threat. [ 53 ] For the foregoing reasons, I find the accused guilty on each of the remaining three charges on information 1013 on which he has entered pleas of not guilty. Released: December 14, 2010 ____________________________________ Justice John Kukurin, Ontario Court of Justice