R. v. Ashley, 2023 ONCJ 579

ONTARIO COURT OF JUSTICE CITATION: R. v. Ashley , 2023 ONCJ 579 DATE: 2023 12 22 COURT FILE No.: Brampton 998 21 619 BETWEEN: HIS MAJESTY THE KING — AND — Chelsea Ashley Before Justice J. De Filippis Heard on October 19 – 20 & December 21, 2023 Reasons for Judgment released on December 22, 2023 Mr. C. MacNeill.................................................................................... counsel for the Crown Mr. R.

Rowe ................................................................................ counsel for the defendant De Filippis, J.: INTRODUCTION [ 1 ] The defendant was charged with assault and assault with a weapon (a knife), said to have occurred on August 16, 2020. She is also charged with assault, assault with a weapon (a knife), assault by strangling, and threatening to cause death, all arising from events on December 10, 2020. The complainant went to the police after the second incident.

During that report, she disclosed the allegations with respect to the first incident. [ 2 ] The complainant in this matter is Ms. Cameal Smith-Binns. She and the defendant know each other from Jamaica. The two women lived together in the City of Brampton, from 2019 until December 10, 2020. The complainant has a son, who was one year old at the time of these events. The defendant has an adult daughter. All resided in the same home and each adult had her own room. By December 2020, a man also lived in the basement of the home. [ 3 ] I heard from the complainant and the defendant’s daughter, Ms. Keelia Roberts.

Medical records were also tendered as evidence, on consent. These reasons explain why I find the defendant not guilty. PROSECUTION EVIDENCE Medical Records [ 4 ] On December 11, 2020, the day after the second incident, the complainant was examined at a hospital. The medical records include a report by the complainant that she had been assaulted and notes by paramedics and hospital staff. The records are not entirely clear. A note by a paramedic reflects that the complainant reported she had been punched in the head and choked. It appears that the

author of this note observed “minor marks on her neck” and that there is “no obvious sign of trauma”. A triage report repeats the complainant’s assertion she had been punched and choked and noted “marks to neck as per ems [paramedics]”. A later, more fulsome, report, presumably completed by the examining doctor, that includes body charts, records that the complainant did not have abrasions, lacerations, fractures, contusions, or wounds. Complainant [ 5 ] The complainant came home on December 10, 2020, at 6 PM and went upstairs. Soon after, she heard a knock at the door and voices within the home.

She came downstairs and saw that children had been admitted to the home. She asked the defendant why they were there. They argued about this. She testified that the defendant, “jumps me and starts to fight me, you know, go to my throat” and by word and gesture explained that she was punched and choked. She added that her breathing was not restricted. [ 6 ] After this confrontation, the defendant went to the bathroom. The complainant approached the defendant who was seated on the toilet and said, “are you going to kill me?” The defendant grabbed her by the throat and punched her again.

The defendant ran to the kitchen and took a large knife – “about 9” – in hand. The defendant’s daughter intervened and took the knife away. The complainant then added, “I’m not remembering that part of the story....I don’t remember what happened from here”. The complainant testified that before the intervention of the daughter, the defendant was “coming towards me with the knife” and “was very angry as if she wanted to kill me”.

She added that, “I had multiple scars on my neck from the choking”. [ 7 ] The complainant testified that this was the second assault upon her by the defendant; “The first time I overlooked it but the second time it happened I had to take a stand for myself and report the matter”. She described an incident in August 2020 as follows: I can’t recall the exact date. It was at a different place in Brampton. We went to a store, and I came home before her and was talking to her daughter. She [the defendant] was upset that I was telling her daughter that she was being careless.

I don’t know how she [the defendant] could know this as she was outside looking into the window. She came inside and started to fight me and ripped off my shirt and there was also a knife brought into play. She was trying to invoke terror and I tried to remain as calm as possible and not escalate the situation. [ 8 ] Cross-examination began with a question about how the complainant came to Canada. After replying that she is a permanent resident, she objected to the relevance of the question. When I directed her to answer, she replied, “on a plane”.

When pressed by counsel, she answered, “I came to Canada as a visitor”. She added that the defendant had come to Canada earlier and they “reconnected”. The complainant confirmed that she is “married but separated”. [ 9 ] The complainant came to Canada on a visitor’s visa and made a refuge claim, on the basis that she feared further domestic violence in Jamaica. She denied “looking for anyone”, including the defendant, to marry her and added, “I was already married”. She denied being in a domestic relationship with the defendant but agreed that “we did things from time to time, sexually”.

While residing with the defendant, the complainant received income from Ontario Works and contributed to the rental costs of the home. She admitted working at a janitorial business run by her sister but insisted it was voluntary and not remunerated. [ 10 ] The complainant pursued an application to become a permanent resident and achieved this goal after the incidents in question in this case. Defence counsel suggested that she knew that reporting domestic violence would help her “get status” and that she had used the criminal justice system to further her application to become a permanent resident.

This line of questioning upset the complainant and I had to tell her several times to answer the questions. [ 11 ] When asked why she was upset that the defendant let children into the home, the complainant replied that it was her right to question this. She added that she felt “vulnerable” and explained that: “all others had landed status and I felt I was being taken advantage (sic)”.

The complainant claimed the defendant had told her she [the defendant] had greater rights” and added, “I did the right thing and went to the police to see if I had rights and this is why we are here today, I got my rights”. [ 12 ] The complainant insisted she was assaulted by the defendant. She denied being the one who had picked up a knife. As noted, the hospital records note that the examining doctor found no evidence injuries on the complainant’s body. When asked to explain this, the complainant replied that, “You will have to take that up with the doctor. I reported it [the assault] and what more can I do?”.

DEFENCE EVIDENCE Defendant’s Daughter [ 13 ] Ms. Keelia Roberts is the defendant’s daughter. She is 23 years old. She confirmed that on December 10, 2020, the complainant and defendant argued over the presence of children who had come into the home. Ms. Roberts went upstairs to her room to avoid this unpleasantness. While there she heard a “commotion” in the upstairs bathroom. The door was open. She saw the complainant standing over the defendant as the latter sat on the toilet seat. The complainant spat on the defendant. The defendant pushed the complainant out of the bathroom and shut the door. [ 14 ] Ms.

Roberts went downstairs to be with the children. After some time, the complainant came downstairs, picked up a knife and, while crying, said she would kill Ms. Roberts and the defendant and tell the police they were responsible. Ms. Roberts sustained a cut to her hand as she tried to take the knife from the complainant’s hand. As they struggled, the defendant came downstairs and assisted her daughter. Together, they twisted the complainant’s hand and forced her to let go of the weapon. Ms. Roberts added that neither she nor her mother punched or choked the complainant.

The defendant went outside with her cell phone. The complainant pleaded with Ms. Roberts that the police not be called as she “did not have status in Canada”. Ms. Roberts returned to her bedroom. [ 15 ] Ms. Roberts testified that the complainant worked “at a cleaning job seven days a week from 6 am until midnight”. She does not understand how the complainant managed to keep up this pace. Ms. Roberts knows the defendant was paid for this work because she helped her calculate her hours of work.

[16] Ms. Roberts agreed with Crown counsel that it is “absurd” that the complainant would threaten to kill her and the defendant andblame them for their own deaths, and testified, “but this is exactly what was said”. She testified she does not believe the complainantintended to cut her during the struggle for the knife. However, in her statement to the police two days after this event, she told the policeshe would like to press charges because of the cut on her finger and that she believed the complainant to be mentally ill.

She concededthat she did not report to the police that the complainant had spat on her mother while in the bathroom. SUBMISSIONS [17] It is the position of the Defence that the complainant did not tell the truth: Her memory was selective and her answers evasive. She avoided answering questions about immigration and employment matters because she used the criminal process to further herapplication for landed immigrant status. Specifically, counsel asserts that the complainant, a refugee claimant based on domesticviolence in Jamaica, thought she could jump the que by claiming an assault in Canada.

Moreover, the medical records, it is said,undermine her allegations. The Defence submits that Ms. Roberts, who testified that the complainant was the aggressor, was not shakenin cross-examination. [18] The Crown provided helpful caselaw on the meaning of “choking”. Counsel described the Defence theory of a motive to lie – toadvance an immigration application – as “ludicrous”. Counsel explained why I should conclude that the complainant’s version of eventswithstood scrutiny while that of Ms. Roberts did not. The Crown says it has met its high burden of proof.

ANALYSIS [19] I have the benefit of submissions from Crown and Defence counsel. I need not reference them in these reasons. It will suffice tonote that they inform the conclusion I have reached. [20] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if thedefendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed butraises a reasonable doubt.

An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince,beyond reasonable doubt, that the defendant is guilty: R. v. W(D), (SCC)). [21] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reasonand common sense which must be logically based on the evidence or lack of evidence: R. v. Villaroman, 2016 SCC 33 ). Inapplying the standard, I can accept some, part, or none of what a witness states.

The testimony of a witness is assessed based on theperson’s sincerity and accuracy. [22] There is no doubt that on December 10, 2020, the defendant and complainant argued. There was a physical confrontationbetween them in a washroom and kitchen. One of the women took hold of a knife in the kitchen. Who did what is not clear. [23] The evidence given by the complainant and Ms. Roberts cannot be reconciled. One or both is untruthful and/or unreliable. Iapproach Ms. Roberts testimony with caution because she is the defendant’s daughter.

Moreover, there is an inconsistency in herevidence; she said the defendant worked seven days a week from 6 AM to midnight, yet she confirmed that on December 10, thecomplainant came home at the dinner hour. However, her core testimony was not undermined. She did not evade questions or argue. This cannot be said about the complainant. [24] Whether or not the Defence theory about the complainant’s motive to lie is ludicrous or accurate, her answers to questions abouther immigration status – as well as whether she was remunerated for working while on social assistance – suggests she had something tohide.

In any event, her obvious reluctance to discuss these issues shows a troubling lack of candor. Moreover, the medical records castdoubt on the testimony of the complainant. [25] The inconsistent observations by paramedics and triage nurse on the one hand and the examining physician on the other, ispuzzling. As an aside I note that while the medical records reveal the complainant claimed to have been repeatedly punched in the headand choked, she did not claim to have been threatened with a knife.

In any event, the medical records do not support the extent of injuriesas described by complainant in trial testimony. [26] I do not find that the complainant or Ms. Roberts lied to me. However, this case fails on both branches of W.D.: I do not haveconfidence in the testimony of the complainant and there is no reason for me to reject that of Ms. Roberts about the events of December10, 2020. [27] Ms. Roberts was not present for the first incident on August 16, 2020.

However, my findings about the credibility of thecomplainant, lead me to the same result with respect to those charges. [28] The Crown has not met its burden of proof. All charges are dismissed. Released: December 22, 2023

Signed: Justice J. De Filippis