R. v. O’Halloran, 2017 ONCJ 421

ONTARIO COURT OF JUSTICE CITATION: R. v. O’Halloran , 2017 ONCJ 421 DATE: 2017 06 07 COURT FILE No.: Brampton 3111 998 16 3641 BETWEEN: HER MAJESTY THE QUEEN — AND — MAYNARD O’HALLORAN Before Justice G.P. Renwick Heard on 01, 02 June 2017 Reasons for Judgment released on 07 June 2017 T. Powell ............................................................................................ counsel for the Crown W.

Singer ............................................... counsel for the defendant, Maynard O’Halloran RENWICK J.: INTRODUCTION [ 1 ] Maynard O’Halloran is charged with one count of assault, allegedly committed upon his sister, Penny O’Halloran on 21 March 2016. [ 2 ] Although the evidence was heard over the course of two dates, the trial was brief. Ms. O’Halloran and Constable Delaney testified for the prosecution, and the defendant testified on his own behalf.

There were no exhibits introduced by either party. [ 3 ] The complainant testified that in the course of asking her brother to return a candle she believed he had removed from the main area of the house, he assaulted her on the left side of her mouth, causing a tooth to puncture her face and fillings to be knocked loose. [ 4 ] The defendant testified that it was his sister, the complainant, who attempted to attack him and as he brought his right hand up to protect himself, there was incidental contact which caused the complainant’s injury.

He denies that he ever intended to hit the complainant or cause her any injury. ANALYSIS [ 5 ] In order to find Mr. O’Halloran guilty of this offence, 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. [6] If I am left in a state of reasonable doubt about any of these elements I must acquit the defendant. Credibility [7] 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. [8] 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] [9] In a recently published scholarly paper, Mr. Justice Paciocco of the Ontario Court of Appeal elaborated upon these principles: (

a) If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit; (

b) If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then you have notrejected it entirely and you must acquit; (

c) You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof of the guilt ofthe accused; and (

d) Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convictedunless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.[2] [10] 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 roleof the 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.

The Evidence [11] The complainant testified in a somewhat unsatisfactory manner. At times during her cross-examination, she was argumentativewith counsel. At other points, the complainant claimed a lack of memory respecting evidence she had already given. At one point, whenasked if the complainant had been humming or singing in the kitchen before the defendant entered, she said “no” and then whisperedunder her breath “happy birthday.” I found this part of her evidence to be flippant and unhelpful.

The theme of Penny O’Halloran’sevidence, to use her words, was that she “just want[ed] this over with.” [12] In considering the overall credibility of the complainant, I will consider the following areas: -general character; -motive to fabricate; and -evidential value. As well, I will consider the overall reliability of the complainant, in terms of the following: -ability to observe; -memory; and -presentation. Credibility of the Complainant [13] Penny O’Halloran is the slightly older sister of the defendant. She is 57 years old, she is a mother, she works as a receptionistand she has no criminal record.

There was no discreditable conduct adduced respecting her character. There were no concerns raised thatthe complainant is not honest or not worthy of belief. [14] At the time of this allegation, the estate of the mother of the complainant and the defendant was still in the process of beingsettled. There was tension between the complainant and the defendant and they were not communicating. Once the defendant wascharged he was removed from the family home.

The complainant had a possible motive to provoke the defendant into assaulting her: hisremoval from the home would make her life easier and he would not have access to family heirlooms or keepsake items before thefinalization of the estate.

[15] In terms of the value of the complainant’s testimony I will consider the following: -plausibility; -substantiation; -internal consistency; -external consistency; and -balance. [16] The complainant’s description of the assault is somewhat implausible. She describes the assault as the immediate andunprovoked reaction to her gentle request of the defendant to return a special candle to the main floor of the home. The complainant saysthat the defendant said nothing before striking her in the face.

On her version of events this was the first conversation she was havingwith the defendant and she had assumed he took the candle rather than her sister or her nephew, both of whom also lived in the basementof the home. [17] There is no evidence that corroborates the complainant’s description of the cause of her injury. However, there is substantiationof the complainant’s injury and her evidence of the physical home environment. [18] Constable Delaney was one of the first responders who attended the residence following the 9-1-1 calls of the defendant and hisother sister.

The officer could corroborate the complainant’s evidence that the house was not in darkness, nor did the officer notice anydog-gates blocking most of the entrances to the kitchen, again, supportive of the complainant’s testimony, and contrary to thedefendant’s evidence. [19] In terms of the complainant’s injury, the officer’s evidence was entirely confirmatory. The officer observed that thecomplainant had blood on her face, the complainant’s face was starting to swell, blood was on the cloth held by the complainant, and theofficer saw the complainant spitting up blood.

This evidence significantly supports the level of the assault, the complainant’s descriptionof her injury, and assists to support the complainant’s denials that the house was in darkness and that dog barriers compelled entry of thekitchen by the main entrance. [20] Generally, Penny O’Halloran was consistent in both her evidence-in-chief and in cross-examination. There were no internalinconsistencies in her version of events. There were parts of her evidence where the complainant denied knowledge of things one mightexpect her to know, which detracted from the internal consistency of her evidence.

Her answers (“I dunno”) to questions about thedistance of the fridge from the main entrance to the kitchen, or how many steps it would take to get to the fridge upon entering thekitchen detracted only slightly from her overall credibility. [21] There were no external indicators by which the complainant’s evidence could be tested. [22] In terms of balance, the complainant described the defendant as someone who was not nice to her.

She testified that thedefendant referred to her, her younger sister, and her mother (when she was alive) as “the bitches.” She portrayed their mutual enmity asthe result of the defendant’s attitude and behaviour without acknowledging any personal responsibility for the state of their relationship. Reliability of the Complainant [23] There is no dispute that the complaint was in a good position to observe the defendant and to know how her injury had beencaused. There were no physical or environmental obstructions to Penny O’Halloran’s observations.

I have no concerns about the witness’ability to observe the events about which she testified. [24] In terms of memory, there are concerns with the testimony of the complainant. I am not suggesting that the witness suffers frommemory loss, either by reason of health or the passage of time. Rather, the witness claimed not to remember letting the dog outside ortestifying to that during her examination-in-chief.

To be clear, I disbelieved the complainant when she gave both of those answers.Likewise, when the complainant denied knowing how many stairs there are leading from the main floor to the bedrooms, or whether ornot the defendant ever locked his bedroom door, her lack of memory seemed less than genuine.

Given that these are peripheral matters, Ican attribute these answers to testimonial-fatigue instead of a desire to mislead the Court, but nonetheless, they factor into my assessmentof the complainant as a reliable historian. [25] What if any weight should I give to the presentation of the complainant during her testimony?

Many courts have cautionedtriers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness: It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of thewitness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity canbe and often is misinterpreted as indicating truthfulness.[3] [26] Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness’ presentation: R. v.

N.S., 2012SCC 72 , [2012] S.C.J. No. 72, at para. 25: It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges(and juries) have the "overwhelming advantage" of seeing and hearing the witness - an advantage that a written transcript cannotreplicate: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; see also White v. The King, (SCC),[1947] S.C.R. 268, at p. 272; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p. 131.

This advantage is described asstemming from the ability to assess the demeanour of the witness, that is, to see how the witness gives her evidence and responds tocross-examination.

[ 27 ] In this case, I found Penny O’Halloran generally believable during her testimony. She displayed tears, and apparent sorrow, at the appropriate times. However, the complainant’s presentation was also problematic in parts. During her cross-examination, the complainant took an oppositional stance with defence counsel. At one point, the complainant even seemed frustrated with the Court. [4] Nonetheless, again, I attribute this more to a sense of exasperation on the witness’ part, rather than an attempt to obfuscate or mislead. [ 28 ] In

summary, although the testimony of Penny O’Halloran was not free from question, it could support a conviction, if there were no other evidence to consider. I say this because, in a general sense, after cross-examination, I was satisfied that overall, Ms. O’Halloran was truthful and reliable in her description of the cause of her injury. This is far from the end of the matter. Instead, this is merely a starting point, without which, I would not need to consider the evidence of the defendant or the W.D. analysis.

Credibility of the Defendant [ 29 ] Like the complainant, the defendant is without a criminal record. [5] He is a 55 year-old father of three, who in the past was a maintenance machinist, but due to on-going health issues, he is disabled from current employment.

I have no concerns with the defendant’s general reputation or trustworthiness. [ 30 ] The prosecutor suggested that the defendant purposefully took the candle to anger the complainant and that the defendant’s version of events is designed to provide a defence of self-defence for an attack by the complainant that never took place. [ 31 ] The prosecutor never suggested that the defendant was motivated to mislead the court to exculpate himself.

And I specifically caution myself that it would be unfair to attribute a motive to fabricate a version of events on the part of the defendant merely because he has decided to testify in his defence. To do so would undermine the presumption of innocence and the reality that some defendants are wrongfully charged. Absent any positive evidence of a motive to mislead, I will not consider any motive in consideration of the credibility of the defendant beyond the presumed desire to obey the oath sworn by Mr. O’Halloran. [ 32 ] The plausibility of the defendant’s version of events is wanting.

The defendant described the environment of the home in terms suggestive of an attack by the complainant who was lying in wait: the lights were out, the complainant made no noise, the TV was off, the TV room curtains were drawn, the dog had been let outside, and the dog-gates compelled the defendant to enter the kitchen by a particular route.

Significantly more implausible than the suggestion that his elder sister was either attacking the defendant or feigning an attack to provoke him to hit her is the defendant’s description of the event which caused the complainant’s injury. [ 33 ] On the defendant’s account, he was completely startled by the “loud bang” of the complainant having kicked the dog dish, whereupon he turned to see his sister’s right forearm and elbow just miss his face. He describes his surprise and initial inability to recognize his attacker as the complainant until her arm came down.

The defendant says at this point her left arm started coming up and he stumbled back to get away from her. He describes the event in his evidence-in-chief this way: Once she seen me moving away from her she started coming right at me. She wasn’t letting me get more than a step away from her. I stumbled backwards about three, four steps and ran into the table. The defendant described bringing his left arm up in front of him with the plastic ice cube tray he was carrying.

Again, the complainant advanced on him and when he saw that the complainant’s right hand was coming up over the ice cube tray, he testified: And I responded. I was holding the table with my right hand and just went like this. Q: Indicating with your right hand. A: Like that across my chest, to back away from her. I didn’t aim anywhere to hit her. Q: Okay. A: I couldn’t even see her through the ice cube tray, except for her eyes, and a part, or bit of her nose. Q: Okay. And what happened when you did do that. Did you feel anything?

A: I didn’t feel an impact, but I did see her head move slightly to my left and her right fist then go over my left shoulder. [ 34 ] On the defendant’s version of events, the complainant was upset about the fact that he had removed a candle from the main floor. To confront him, the complainant had yelled at the defendant through his closed bedroom door a couple of days prior. The defendant posits the incident giving rise to the allegation of assault as a set-up: his sister attacked him and he was merely defending himself when she must have been accidentally struck by his arm.

It is also interesting to note that on the defendant’s version of events, the entire attack began without the complainant ever speaking a word, much less even mentioning the missing candle. [ 35 ] There is also some implausibility in the defendant even raising his right hand to protect himself given that his left arm was already in front of him and his right hand was partially bracing him from the complainant’s attack on the kitchen table. [ 36 ] In terms of substantiation, there is no corroboration for the defendant’s version of events. [ 37 ] There were small discrepancies in the defendant’s testimony respecting its internal consistency between the evidence given in- chief and during cross-examination.

The prosecutor asked the Court to consider these as indicators of untruthfulness, but I regard these small differences in the description of how the defendant brought his right hand from the table to the point where he struck the complainant, and whether or not he was bracing himself or leaning on the kitchen table, as insignificant. [ 38 ] Far more significant was the lack of internal consistency shortly after the cross-examination began. At one point the defendant was asked:

Q: What hand did you hit her with? Rather than deny that he had hit the complainant, or offer that his right hand or arm must have contacted the complainant’s face, although he never felt any impact as he lifted his hand to shield himself, which would have been consistent with the defendant’s earlier testimony, he responded: A: It would be my right. [ 39 ] As well, the defendant’s claim of an unintentional application of force seemed to change during the cross-examination. Q: And in defending yourself your intention was to hit her in the face. A: No, my intention was only to back her away from me.

I had no intention to hit her in the face. Like I said, when I swung , I thought, uh, I had just hit her in the body, you know what I mean. Just to back her away from me…. [ 40 ] The defendant also admitted in cross-examination that as he brought his right hand up from bracing himself on the table, he made a fist.

This may have been an attempt by the defendant to discount an intentional striking of the complainant’s face, while providing an explanation for the amount of force that caused such a significant injury. [ 41 ] The injury that resulted from this apparently accidental, unintentional application of force that was so minimal it was not even perceived by the defendant, completely undermines the defendant’s testimony.

That is to say, the defendant’s testimony is externally inconsistent with the undisputed, corroborated evidence of the severity of the injury caused to the complainant. [ 42 ] Was the defendant a balanced witness? He attempted to portray himself as a loving brother who feels unfairly maligned by his greedy sister.

Also, when asked in cross-examination “your sister sounds violent and crazy sir,” the defendant responded, “she is.” Reliability of the Defendant [ 43 ] There was no suggestion that the defendant was not equally well-placed as the complainant to make observations of each of their actions during the events in question. [ 44 ] There were no memory issues raised during the defendant’s testimony. [ 45 ] At times, the defendant was an impressive witness. He was articulate and descriptive. He appeared earnest. This is not to suggest that the defendant’s presentation was flawless.

There were at least three issues raised by the defendant’s demeanour while testifying. [ 46 ] Much of the defendant’s version of events was presented in an exaggerated fashion. The defendant described the “loud bang” of the dog dish apparently kicked across the floor by the complainant, and how startled he was by this. Similarly, the description of the complainant attacking the defendant immediately as he entered the kitchen sounded exaggerated and contrived. [6] [ 47 ] The apparent sincerity of the defendant also causes me some concern.

He claims to be apologetic for having unintentionally injured his sister, but at no point did he apologize during or after the confrontation with his sister. As well, at one point during cross- examination, the defendant claimed that he “still feel[s] self-conscious” for hitting the complainant as an 8 year old child. [ 48 ] Lastly, the defendant was prone to offering rambling explanations to simple questions that lead him twice to be unaware what question the prosecutor had initially asked him.

I took from these answers a concerted effort on the part of the defendant to malign the complainant and depict himself as the victim. Findings [ 49 ] I have considered all of the evidence and the submissions of counsel carefully. As is evident from the excerpts noted above, I have reviewed the entirety of the complainant’s evidence and all of the defendant’s testimony before reaching any conclusions in this matter. [ 50 ] As indicated earlier, I am entitled to accept some, none, or all of a witness’ testimony. [ 51 ] I do not accept all of the complainant’s testimony.

I do not accept that she merely gently requested that the defendant return the candle to the main floor. Instead, I find it more likely the case that she resumed her earlier argument (which she denied having), once the defendant entered into the kitchen.

The fact that I take issue with some of the complainant’s evidence does not mean the parts that I accept as truthful cannot be considered toward proof of the offence. [ 52 ] The more significant issue is whether the defendant’s testimony convinces me that he is not guilty (if I accept his evidence as truthful), whether the defence raises a reasonable doubt (if I am unsure whether or not to reject his evidence as untruthful, or in spite of it being rejected), or whether on all of the evidence I do accept I am satisfied beyond a reasonable doubt of the guilt of the defendant. [ 53 ] I completely reject the defendant’s description of the cause of the complainant’s injury.

His version of events is implausible, inconsistent, and does not accord with common sense or the undisputed fact of the level of injury suffered by the complainant. The complainant’s injury was not the result of an accidental application of force. [ 54 ] Nonetheless, this rejection of the defendant’s evidence is not proof of guilt, nor is it the end of the matter. [ 55 ] Not only do I reject the defendant’s evidence as untrue, I am not left with a reasonable doubt by it. In consideration of whether or not the defence evidence leaves me in a state of reasonable doubt about his guilt, I find that it does not.

There is nothing about the defence evidence that causes me to doubt that no insubstantial amount of force caused the complainant’s injury. In light of the severity of

the injury (her tooth perforated the skin above her lip), I am lead to the irresistible conclusion that the defendant “swung” at the complainant (as he testified), with a closed fist (as he acknowledged), but not to back her away from attacking him as he claimed, rather I find that the defendant deliberately punched the complainant as an angry and violent response to end a verbal confrontation which may have initially startled him, but most certainly angered him. [ 56 ] Even though I have some concerns about the accuracy or truth of some of the complainant’s evidence relating to her role in the confrontation with the defendant, I have placed great reliance on those portions of Constable Delaney’s evidence which can be used to corroborate or disprove the allegations.

In terms of the mechanics of the injury (a perforated lip that required sutures to close) and the observable artifacts of the injury (blood on the floor, a bloody cloth, the complainant spitting blood), I have no concerns that the complainant was less than completely truthful about the cause of her injury (a punch to the face by the defendant). I am not left in any reasonable doubt that the injury was caused by the defendant’s purported incidental application of force. Defence of Self Defence [ 57 ] I must also consider whether the defence of self-defence arises in this case.

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. [ 58 ] For the defence to be raised, 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. [ 59 ] 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 would risk physical injury to get the defendant to strike her as a way to get him out of the house so that she could keep the contents of the residence defies credulity and the operation of the law of estates, which was apparently already underway. [ 60 ] There was not even a scintilla of evidence to suggest that the complainant is or has ever been violent, either towards another person, or the defendant. Any belief on the part of the defendant that his sister was physically attacking him is unreasonable.

The suggestion is even more unreasonable in the circumstances: according to the defendant, the complainant said nothing. Had the defendant suggested that the complainant was renewing the argument or that she had begun to question him about the candle (adopting that part of her evidence), this may have bolstered his view that she was lunging at him and gesticulating in an aggressive manner.

The defendant’s suggestion that the complainant was essentially awaiting his arrival in order to attack him, lacks any air of reality that his belief was reasonable. [ 61 ] The defendant’s purpose in physically responding to the violence or perceived threat of violence must also be considered. A punch to the face 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. [ 62 ] 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. [ 63 ] 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. [ 64 ] Even if I had found that the complainant advanced upon the defendant in a menacing manner, which I have not, I would not have accepted self-defence as raising a reasonable doubt for the following reasons: i.

There was no prior history of violence on the part of the complainant towards the defendant; to the contrary, the defendant admitted that he hit the complainant when he was a child; ii. The defendant could have yelled at the complainant to stop, he could have attempted to block any blows, he could have tried to retreat further (perhaps necessitating pushing the table backwards behind him), he could have grabbed the complainant to prevent an attack, or he could have pushed the complainant away from him, as reasonable alternatives to violence; and iii.

Although the defendant is taller and slightly younger than the complainant, it is unknown whether or not he was stronger or more physically capable than his sister; moreover, the evidence fails to establish her physical capabilities to cause injury to the defendant, despite his testimony that she has some weight behind her and he has breathing difficulties. [ 65 ] 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 his sister on 21 March 2016. CONCLUSION [ 66 ] On all of the evidence, I am satisfied beyond a reasonable doubt that Maynard O’Halloran committed an unlawful and unjustified assault upon Penny O’Halloran and I find the defendant guilty as charged.

Released: 07 June 2017 Justice G. Paul Renwick