R. v. Donadel, 2013 ONCJ 431

ONTARIO COURT OF JUSTICE DATE: 2013·08·07 COURT FILE No.: Regional Municipality of Durham 998 12 11046 Citation: R. v. Donadel , 2013 ONCJ 431 BETWEEN: HER MAJESTY THE QUEEN — AND — Aimee Donadel Before Justice J. De Filippis Heard on June 3 & 4, 2013 Reasons for Judgment released on August 7 , 2013 Mr. M. Melleson ................................................................................... counsel for the Crown Mr. J.

Olver ...................................................................................... counsel for the defendant De Filippis, J.: Introduction [ 1 ] The defendant is charged with assault causing bodily harm. The offence is said to have occurred on February 19, 2012 at the Municipality of Clarington. The complainant is her step-mother. I heard from five witnesses. There is no dispute that on the day in question there was a confrontation between the defendant and complainant and that the latter suffered injuries amounting to bodily harm. [ 2 ] These reasons explain why I find the defendant not guilty.

Evidence [ 3 ] At 4:01 PM, on the day in question, Cst. Wintle was dispatched to a home in Newcastle to investigate a domestic altercation. The door was answered by Gaetan Donadel and standing behind him was his wife, Debbie Avery. The officer immediately noticed a large bruise and cut to the side of Ms Avery’s left eye. Photographs taken at the time and filed with the Court confirm the extent of the injury. Cst. Richardson arrived at the home shortly afterwards. In response to information received he went to another home in search of the defendant. He arrested her for the charge before the Court.

He testified that she was distraught and upset. [ 4 ] Debbie Avery is married to Gaetan Donadel and they have two children. The defendant is Mr. Donadel’s daughter from a previous marriage. She testified that the defendant moved into their home several months before this incident; previously she lived with her mother (Mr. Donadel’s first wife). She described her relationship with the defendant as “casual”. [ 5 ] According to the complainant, on the day in question she overheard the defendant and her father arguing about storage bins the former had removed from her bedroom.

The complainant testified that she went to basement, where the bedroom was located and was told by her husband to go back upstairs. She did so but quickly returned because of something she overheard; she felt it was important to do so because the defendant was “manipulating us and controlling my house”. At this time, the defendant charged at her “with anger”, the two struggled, and then she “staggered back” holding her eye. [ 6 ] The complainant described the events immediately before she was injured as follows: “We were connecting by hands….when she

came at me. I put up my hand and we struggled for seconds before my husband intervened”. She testified that she “bent back” the defendant’s fingers during the struggle “to try to get away” but denied “throwing punches” or calling the defendant a “lying little bitch”. The complainant was later taken to hospital and the wound was closed with three or four stitches. The bruise remained for one month. [ 7 ] Ms Avery testified that the defendant was allowed to live with them on the understanding she would abide by the house rules.

The complainant added that her husband told her he would handle any problems with his daughter and told the complainant not to become involved. This exclusion hurt and upset the complainant but she agreed to it. However, in the weeks leading up to the incident, the complainant became anxious that the defendant was “getting between” her and her husband. [ 8 ] The complainant stated that the immediate cause of the argument on the day in question was the removal of storage bins, by the defendant, from her bedroom to another area of the basement.

These bins contained the baby clothes of the children she had with the defendant’s father. She added that what it was “really about” is “manipulation, disrespecting our home, and lies” about her attendance at work and money matters and that this “had been building up for about one month”. [ 9 ] Gaetan Donadel is 37 years old and works as a millwright. He responded to a subpoena but explained, “I do not like being here….it’s my daughter and my wife”. He testified that the bins were “a big problem” between the defendant and complainant.

Previously, he removed some of the bins from the bedroom as his daughter had complained about the lack of space. [ 10 ] On the day in question, the complainant called her father downstairs to show him that she had moved the remaining bins. As he questioned why she had done this, his wife came downstairs and said, “Have some respect for your father”. Mr. Donadel believes he told his wife to go back upstairs. After he and his daughter resumed their argument, the complainant returned, “angry and upset”, and called the complainant a “lying little bitch”. According to Mr.

Donadel, “things happened quickly”: He saw the defendant rush towards the complainant and throw a punch. As his wife was behind him, he did not see what, if anything, the complainant did during this altercation. As his wife left the area, the defendant picked up a mirror and threw it towards him before going outside. He followed her and noticed she had slammed the garden gate with such force that one of the hinges was damaged. Before leaving the defendant showed her father her hand and said, “look what that bitch did to me”. [ 11 ] Mr.

Donadel testified that “there was always a tension” between the defendant and complainant and that he felt “caught in the middle…I love my daughter and my wife”. When asked if he believed his daughter had acted in self defence, he paused and said, “In my opinion it’s not because [the defendant] came forward ten feet in anger”. He added that he believed the source of this anger is prior physical abuse of the defendant by her step-father and that she needs “to get help”. [ 12 ] The defendant works for an insurance company. She testified her parents separated when she was two years old and she lived with her mother.

When the latter decided to move to the USA, the defendant, in August 2011, asked to live with her father. She was allowed to do so provided she obeyed these house rules; no smoking, no friends without prior permission, and “don’t move the boxes”. The defendant admitted she “broke the box rule” on the morning of February 19, 2012, when she moved the storage bins from her bedroom to other areas of the basement. [ 13 ] The defendant testified that she knew moving the bins would “cause issues” but “did not dream it would get to this”.

She argued with her father over the matter but could not understand “why it’s a big deal”. She stated the complainant “quickly came down” and called her a “lying fucking bitch”. The defendant “went toward” the complainant and added that she now realizes this was taken as a threat. The complainant grabbed her hand and “would not let go”. The defendant stated that this brought back childhood memories “when I was dragged to the room to be punished” and thought “I am old enough to do something about it this time”.

The defendant described what she did as follows: “I had reached around my father and realized I connected. I saw [the complainant] stagger back and was shocked at what I’d done”. The defendant testified she threw a mirror at her father’s feet to intimidate him so he would not come near her as she feared his reaction to the injury she had caused to his wife. She was told to leave by her father and heard the complainant shout that she would never be allowed back. However, her father followed her outside and asked her not to leave. The defendant ignored this.

She has “no recall of breaking the gate” but does not dispute her father’s claim that she did so. [ 14 ] The defendant testified that she was injured by the complainant and that, after being charged, she went to the police station to have photographs taken of her hand and forearm. The police, she said, were not interested so she took the photographs herself on February 28. These were filed with the Court. They show slight bruising. [ 15 ] The defendant testified that before “throwing a punch” she screamed, three times, at the complainant to “let go” of her hand.

The Crown objected that this evidence had not been put to the complainant or Mr. Donadel and violated the rule in Browne v. Dunn ( (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.) ). Accordingly, Mr. Donadel was recalled and asked if he heard his daughter say this to his wife. He testified, “I can’t recall. There was so much shouting”. Analysis [ 16 ] The Crown points out that the complainant clearly suffered bodily harm and that the only issue is whether the defendant intended to assault her.

Counsel submits that this is not a credibility case because, even accepting the defendant’s version of events, she used excessive force and does not come within the defence provided by

section 34 of the Criminal Code . In any event, the Crown claims the defendant is not a credible witness, as demonstrated by her explanation for throwing the mirror; her father was the peace maker and not one to be feared. Indeed, it is suggested that the thrown mirror and smashed gate are evidence of the defendant’s rage and relevant to intent. [ 17 ] Defence counsel argues that the words and action of the defendant and complainant show they were both angry and that, although, the complainant reasonably felt threatened by the defendant, she inflicted pain to the defendant by bending back her fingers.

In response, the defendant threw “one blind punch” that was not intended to strike the complainant’s face or cause the bodily harm. Counsel suggests that in these circumstances,

section 34 is not relevant; this is a case about intent. [ 18 ] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (

i) where the testimony is believed, (ii) where the testimony is not believed, but leaves

the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remainingevidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C.(3d) 397 (S.C.C.). The application of this principle does not mean the defendant’s evidence is to be viewed in isolation, divorced fromthe context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A). [19]

Section 34 provides as follows: 34.

(1) A person is not guilty of an offence if • (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is beingmade against them or another person; • (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person fromthat use or threat of force; and • (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: • (

a) the nature of the force or threat; • (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential useof force; • (

c) the person’s role in the incident; • (

d) whether any party to the incident used or threatened to use a weapon; • (

e) the size, age, gender and physical capabilities of the parties to the incident; • (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of forceand the nature of that force or threat; • (f.1) any history of interaction or communication between the parties to the incident; • (

g) the nature and proportionality of the person’s response to the use or threat of force; and • (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [20] The quarrel over storage bins is part of a larger dispute. In the weeks leading up to this incident, the relationship between thedefendant and complainant had become tense and competitive. This dynamic was such that Mr. Donadel suggested his wife not speakdirectly with his daughter and that he be the conduit between them. [21] The accounts given by the two women is coloured by their strong emotions at the time.

For example, notwithstanding thecomplainant’s testimony I have no doubt she called the defendant a “lying little bitch”. This was overheard by her husband and isconsistent with her admitted concern over the defendant’s lies and manipulation. Similarly, I disbelieve the defendant’s evidence thatshe threw the mirror out of fear of her father; rather, it was, like the slamming of the gate,

an act of anger. These observations do notmean I reject their evidence entirely, but are offered as reasons why I treat their testimony with caution. On the other hand, I have nosuch qualms about the evidence of Geatan Donadel. He did not let his discomfort at being a witness affect the quality of his testimonyand I have confidence in it. Among other things, his evidence confirms that the incident was a highly charged one that unfoldedquickly. [22] The defendant caused serious injury to the complainant. The Crown invites me to conclude this was a deliberate act of rage andnot one of self defence.

This is a reasonable conclusion – but it is not the only one. The confrontation between the two women wouldnot have occurred had the complainant not intervened in the argument between father and daughter and if the defendant had not made athreatening gesture towards her step-mother. These actions set up a brief physical clash in which the defendant’s fingers were bent backand the complainant was punched in the face. I accept that the defendant screamed when her fingers were grabbed and I cannot reject theclaim that she reacted with one blind punch.

In these circumstances, I agree that this case is not so much about self defence, but one ofintent. I have no doubt the defendant was shocked by the injuries she caused. However, I am not convinced she intended to strike thecomplainant as she did. Accordingly, whether the injuries were foreseeable is not an issue that arises in this case. Conclusion [23] The Crown must prove guilt beyond a reasonable doubt. This standard has not been met. The charge is dismissed. Released: August 7, 2013 Signed: “Justice J. De Filippis”