R. v. Klima, 2018 ONCJ 157

ONTARIO COURT OF JUSTICE CITATION: R. v. Klima , 2018 ONCJ 157 DATE: 2018 03 06 COURT FILE No.: Brampton 3111 998 16 14878 BETWEEN: HER MAJESTY THE QUEEN — AND — KYLE KLIMA Before Justice G.P. Renwick Heard on 05, 06 March 2018 Reasons for Judgment released on 06 March 2018 J. Graham.............................................................................................. counsel for the Crown D. Holmes.................................................................. counsel for the defendant Kyle Klima RENWICK J.: (Orally) INTRODUCTION [ 1 ] Mr.

Klima is charged with one count of assault and one count of mischief under $5000. [ 2 ] This trial was quite brief, both the complainant and the defendant testified and some photographs were introduced into evidence. There was only one main issue in the trial, whether or not the Crown has proven the allegation of assault and mischief, beyond a reasonable doubt. In terms of sub-issues, the credibility of the witnesses and self-defence were also squarely raised on the evidence. [ 3 ] In order to find the defendant guilty of assault, I must be satisfied beyond a reasonable doubt of three things: i.

The defendant intentionally applied force to the complainant; ii. The complainant did not consent to the application of force applied upon her by the defendant; and iii. The defendant knew that the complainant did not consent to the application of force upon her. [ 4 ] Likewise, for the prosecution to prove the mischief count, the evidence must establish beyond a reasonable doubt that the defendant damaged the complainant’s cell phone. [ 5 ] If I am left in a state of reasonable doubt about any of the elements of either offence, I must acquit the defendant. THE EVIDENCE AND FACTS

[ 6 ] I have considered all of the evidence in this matter. I do not propose to reiterate much of the evidence in this very brief trial, but I will provide an overview of my overall impressions of the evidence. [ 7 ] Ms. Van Schyndel testified about the alleged assault and how her cell phone became irreparably damaged and had to be replaced. In terms of her credibility, I was struck by her apparent honesty. Ms. Van Schyndel admitted several things that were not favourable to her. First she admitted that after a heated argument in the past, she had damaged the defendant’s truck. Second, Ms.

Van Schyndel admitted that in the past it was possible during a heated argument that she had taken a swing at the defendant. Last, Ms. Van Schyndel admitted that during this incident there was some initial pushing and shoving by both parties once the argument turned physical. These are damning admissions and they are the hallmark of a truthful witness. [ 8 ] Overall, I found Ms.

Van Schyndel to be candid, truthful, balanced, and without an apparent grudge or “axe to grind.” Though she certainly could have had a motive to fabricate her evidence based on the dissolution of their relationship, it was not apparent to me that she was trying to embellish her evidence or improve it either to make herself look better, or to make the defendant look worse. There was an internal consistency to Ms. Van Schyndel’s evidence, and it accorded with the photographs and common sense. On the whole, the complainant seemed truly remorseful that things had gone too far.

And although there were some minor issues with her evidence, they did not cause me to doubt her truthfulness. [ 9 ] Mr. Klima’s evidence was not satisfactory. There was a quality to his evidence that seemed rehearsed, flippant, and unbelievable. In terms of plausibility, his evidence suffered on significant points. First, when describing how the incident escalated to become physical he said that Ms. Van Schyndel jumped on top of him as he was lying on the couch and began to hit him and kick him.

He never explained how she kicked him, while sitting on top of him, but in his evidence in chief, he clearly said: At this point, she went from leaning over top of me, to, she jumped on top of me and started, ah, like, close-fisting me. I guess. Punching, kicking. [ 10 ] Second, when he described his efforts to defend himself he said: In my defence, I grabbed a hold of her collarbone, that area, trying to keep her arms away from mine.

And I do remember grabbing a hold of her forearms and I did throw her off me, onto the livingroom floor. [ 11 ] Not only was there implausibility to this explanation for the neck injury captured in the photographs, but this evidence seemed to shift. In cross-examination on this point, the following exchange took place: Q: And, as you say, that, um, in your attempts to try to keep her arms away from you that’s when you grabbed her, you said “collarbone, neck area,” right? A: Yes, it wasn’t intentionally, I just, with all the fast movement that’s what I gripped. Q: Right, um, right.

So, when you say “grabbed”… A: Grip. Q: Gripped. Sorry, I just want to make sure I hear you. A: Gripped, grip – G-R-I-P. Q: And, um, was there a grip and a push to try and get her off. A: After I took my hands off of her collarbone area, and that’s when both my hands were on her, ah, outside shoulder areas, and she was tossed off of myself. [ 12 ] Further on, in cross-examination, in response to what had caused the bruising to Ms.

Van Schyndel’s neck, the defendant described that his hand must have “rubbed” against her throat, he had not held her there. [ 13 ] On the whole, the defendant’s evidence did not make sense to me. He could not offer an explanation for the start of the argument. According to him, he was asleep and Ms. Van Schyndel woke him up and started demanding money back. He could not recall what money she was referring to. Ms. Van Schyndel had described him taking money from her wallet that evening to pay for food. I find

that he forgot this fact in order to paint himself in the best light. [14] After an examination of all of the defendant’s evidence, and the inconsistencies referred to above, I do not believe thedefendant’s account of what happened between the parties that morning. The Photographs [15] The defence did not challenge the admissibility of these photographs, or the evidence that they were taken shortly after thealleged assault, or that the marks depicted in the photographs were not caused by the defendant. There is a caveat to this. The defendanttakes issue that he unlawfully assaulted Ms.

Van Schyndel, and at one point in his evidence he seemed to suggest that he was not surethat the marks that were depicted in the photographs were caused by him. However, shortly after this point, he seemed to have concededthis. [16] The injury to the neck on Ms. Van Schyndel is obvious. It is a large dark red mark, with some faint light red scratching marksabove it. In cross-examination, the defendant admitted that the large dark red mark could have been caused by his thumb. [17] I find that the physical altercation between the complainant and defendant caused the marks that were photographed by police onMs.

Van Schyndel shortly after the incident. I make this finding on the basis of the complainant’s testimony, and the lack of challenge toit, or any reason to doubt this evidence. [18] I accept that the complainant’s description of the physical altercation was accurate and truthful. I believe her and I do not believethe explanation of her injuries offered by the defendant. ANALYSIS Credibility [19] This case raises the issue of credibility. In saying that, I recognize that I cannot decide this case as if it were simply a contest ofcompeting versions of events where I am permitted to prefer one version over the other.

That is never permissible for a trier of factbecause it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond areasonable doubt. In fact, even if I totally reject the defendant’s evidence, I must acquit him unless I am not left with a reasonable doubtabout his guilt based upon the evidence I do accept. [20] In R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, our Supreme Court clarified for triers of fact the governingprinciples for deciding credibility cases: i. First, if you believe the evidence of the accused, obviously you must acquit. ii.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. iii. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.[1] [21] In a recently published scholarly paper, Mr. Justice Paciocco of the Ontario Court of Appeal elaborated upon these principles: i.

If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you mustacquit; ii. If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, thenyou have not rejected it entirely and you must acquit; iii. You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof ofthe guilt of the accused; and iv.

Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not beconvicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.[2] [22] I am also aware that I can accept some, none, or all of what a witness says as truthful, and this remains so regardless of the role ofthe witness in the proceedings. Although again, I must remind myself that a rejection of the defendant’s evidence is not dispositive ofwhether or not I am convinced of his guilt beyond a reasonable doubt.

[ 23 ] The defence of self defence is in play if I am satisfied that there is some evidence upon which a reasonable trier of fact could find that self-defence applies: R. v. Budhoo , [ 2015 ] O.J. No. 6846 (C.A.) at paras. 42-49 . If the defence is raised, and there is an air of reality to the defence, t he Crown must then negative at least one of the conditions required for the defence , beyond a reasonable doubt.

If I have a reasonable doubt that self-defence applies on the facts, I must acquit. [ 24 ] I acknowledge that the defendant need not prove that he was acting in self-defence to avoid a conviction for assault. The prosecution must prove that the defence of self-defence does not raise a reasonable doubt about the defendant’s conduct or state of mind. [ 25 ] For the defence to be applied, I must be left in a state of reasonable doubt of the guilt of the defendant in respect of the following: i. The defendant had a reasonable belief that there was force used or threatened to be used upon him by the complainant; ii.

The defendant used force to repel, prevent, or defend himself from attack; and iii. The defendant’s response was reasonable in all of the circumstances. [ 26 ] As a starting point, I reject the defendant’s evidence that he was being attacked, or that he perceived that he was being attacked by the complainant.

The defence theory that the complainant woke him up to argue, and then simply lost all self-control when he said he did not love her, that she then jumped onto him and began to punch him with closed fists, and kick him, and he was merely defending himself, yet he caused her injuries to her neck and upper arm, and he was not injured in any way, defies credulity. [ 27 ] The history of conflict between the parties and her responses in the past do not cause me to doubt her evidence.

She is a much smaller and thinner woman than the defendant and his account is simply inconsistent, implausible, and not believed by me. [ 28 ] The defendant’s purpose in physically responding to the violence or perceived threat of violence must also be considered. A grab to someone’s neck to repel several punches is a possible response to someone advancing in a menacing way. I accept that the defendant’s purpose for responding to the perceived attack by the complainant meets this part of the defence. [ 29 ] Was the defendant’s response reasonable?

People defending themselves from violence need not measure the violence or the threat of violence and respond only in kind. Nor are victims of violence expected to measure the force of their response.

Nonetheless, the response to violence must be appropriate and reasonable in all of the circumstances. [ 30 ] In consideration of the defendant’s actions I am entitled to consider any alternatives to the use of violence, the comparative size, strength, and physical abilities of the aggressor and defender, and any history of violence as between the parties to determine the reasonableness of the response. [ 31 ] Even if I had found that the complainant advanced upon the defendant in a violent manner, which I have not, I would not have accepted self-defence as raising a reasonable doubt for the following reasons: i.

The prior history between them suggests that each had pushed the other in the past and at most, the complainant took a swing at the defendant on a prior occasion. The defendant never described being fearful of the complainant, ever being injured by her, or unable to stop her from hurting him in the past; ii.

The defendant could have yelled at the complainant to stop, he could have attempted to block any blows, he could have tried to turn over, he could have grabbed the complainant’s wrists to prevent a continuation of the attack, or he could have pushed the complainant onto the floor, as reasonable alternatives to grabbing her by the neck; and iii. The defendant is taller and heavier and undoubtedly stronger than the complainant. [ 32 ] In the end, I am not left in a reasonable doubt about the guilt of the defendant on the basis of accident or self-defence.

I have rejected the defendant’s evidence as untrue, I have not been left in any doubt about whether or not the defendant’s evidence is true, and on all of the evidence that I do accept, I am satisfied that the defendant unlawfully assaulted Ms. Van Schyndel on 30 November 2016. [ 33 ] This is not the end of the matter. I must independently consider the evidence to determine whether the prosecution has proven the mischief count, beyond a reasonable doubt. Again, this turns on the evidence and the credibility of the parties. [ 34 ] I accept Ms.

Van Schyndel’s evidence as to the cause of the damage to her cell phone. I reject the defendant’s evidence that he was simply responding to her having thrown her own cell phone at him as she left, and his response without thinking was to throw it back so that he could close the door and be done with her. [ 35 ] Ms. Van Schyndel described a violent incident with several chances for the parties to separate and cool off.

I find that at the end of the incident, after the defendant released his grip from her neck and confirmed that she would lie if questioned by police about the incident, he offered to return her phone. I also find that for no apparent reason other than because it was something of value to Ms. Van Schyndel, and because it would enable her to quickly call the police, he decided to smash her phone on the floor as she described. I am not left in any reasonable doubt about this as the cause of the damage to her phone arising from the defendant’s evidence, nor am I left in

any reasonable doubt on the basis of the evidence I accept. CONCLUSION [ 36 ] Kyle Klima, I find you guilty of both offences as charged. Released: 06 March 2018 Justice G. Paul Renwick