R. v. Rafuse, 2015 ONCJ 106

ONTARIO COURT OF JUSTICE CITATION: R. v. Rafuse , 2015 ONCJ 106 DATE: 2015 02.27 COURT FILE No.: Regional Municipality of Durham 998 13 RA25326 BETWEEN: HER MAJESTY THE QUEEN — AND — Brian Rafuse Before Justice J. De Filippis Heard on January 14 & 16, 2015 Reasons for Judgment released on February 27, 2015 Mr. Murray .............................................................................................. counsel for the Crown Mr.

Liquornik .................................................................................. counsel for the defendant De Filippis, J.: [ 1 ] The defendant was charged with four offences arising from an incident that occurred on October 19, 2013 at the Township of Brock; (1) assault on John Carter, causing bodily harm, (2) possession of a weapon (knife) for a purpose dangerous to the public peace, (3) carrying a concealed weapon (knife), and (4) being unlawfully in a dwelling-house.

At the conclusion of the prosecution case, the Defence moved for a directed verdict of acquittal with respect to the second and third counts. On consent of the Crown, I granted this motion. The trial proceeded with Defence evidence with respect to the first and fourth counts. [ 2 ] The offences are set out in sections 267 and 349 of the Criminal Code : 267. Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. 349.

(1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling- house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein. [ 3 ] The following facts are not in dispute: The complainant is a 28 year old roofing contractor who lives in Cannington. The defendant is a 32 year old man who has occasionally worked as a sub-contractor for the complainant. On the evening in question, the complainant had been at a hockey game.

He was driven home, at about 11 PM, by a woman he was dating at the time, Ms Vanderklugt. The latter went inside the house and the defendant walked to his neighbour’s “work shop”. The homes in this area are on one acre lots. There were

several people inside, including the defendant, who happened to be visiting the same neighbour. The complainant left the work shop atabout 1 AM and returned home. Some time later, the complainant and defendant became involved in an altercation with the result thatdefendant was rendered unconscious and the complainant had his arm sliced. This injury required 18 staples to close the wound. [4] The complainant testified that he had consumed five or six bottles of beer at the hockey game and he continued to drink with othersas they socialized in the work shop.

He said he drank “half to three quarters of a twenty sixer of whiskey” (i.e. 13 to 20 ounces). Henoted that he was “feeling pretty good”. [5] The defendant’s home is a bungalow. He occupies the basement and his parents reside on the main floor. His parents were not homeon this evening. On arrival at his bedroom, he awoke his partner and they began to have sex. He said that both were naked and engagedin this activity when he heard the front door open and footsteps coming down the stairs. He and Ms Vanderglugt covered themselveswith blankets as the defendant entered the room.

The complainant testified that the defendant was “talking gibberish” and said he was“going to watch or join in”. The complainant told him to leave and, after putting on his pants, he “pushed him up the stairs and out of theroom”. [6] The complainant testified that he pushed the defendant out the exterior door and onto the deck. He added that at this point thedefendant turned around to face the complainant and tried to strike him. The complainant blocked this blow with his arm and felt a“sting”. He responded quickly by repeatedly striking the defendant with his fist.

He noted that “I got the upper hand, I punched him outand he was on the ground, possibly unconscious”. It was at this point that he noticed his arm had a “large cut”. He “tied it” and went tothe hospital. He told the staff that he had fallen on his deck because he did not want to involve the police.

He testified that when he later“settled down” he called the police because he realized “how dangerous the whole situation was” - especially the fact the defendant hadentered his bedroom – and explained, “what if I had not been there”. [7] The complainant testified that he does not know how his arm was cut and that did not see a knife or other sharp object in thedefendant’s hand or in the area of the altercation. When asked if he could have cut his arm on the deck, he stated, “I don’t see how…possibly…[but] it is a wooden deck”.

When shown pictures of the deck, he confirmed the presence of a gate at right angles against thewall and a planter that “could be metal”. [8] The complainant conceded he was intoxicated and that when he left the work shed, he used his neighbour’s All Terrain Vehicle(ATV) to drive home. He added that he did not leave private property in doing so. He denied that he and the defendant discussed anoutstanding debt between them, while they were in the work shop, or that he later heard the defendant shouting outside his bedroom forthe keys to the ATV.

The complainant insisted the defendant had entered his bedroom and stood there “saying he wanted to watch”. Heagreed that while inside the home, the defendant did not threaten or assault him, even as he pushed him out, and added that the latter firsttried to strike him once they were outside on the deck. [9] Ms Vanderklugt is a 29 year old personal support worker who, at the time of these events, was living with the complainant. Theirrelationship has since ended. She confirmed that after she drove the complainant home from the hockey game, he went to visit theneighbour and she went to bed.

Sometime later the complainant awakened her and they began to have sex. Both were naked. Shetestified that they were interrupted by the defendant “stumbling down the stairs”. She added that he “opened the bedroom door anddemands to watch us”. He “slurred his words and was not making sense”. [10] Ms Vanderklugt had never met the defendant before. She testified that the complainant said, “Buddy, you’re in the wronghouse” and told him to leave a few times” before “angrily jumping out of bed” and escorting the defendant out of the home. This witnesssaid that within four to five minutes, she dressed and went outside.

She saw the defendant lying motionless on the ground and thecomplainant bleeding from the arm. [11] The defendant denied entering the complainant’s home. He testified that he was assaulted by the complainant at the frontdoor of his home when he confronted him about taking the ATV. He explained that earlier that evening, he had been at a neighbour’swork shop when the complainant arrived, with a bottle of whiskey in hand. He described the complainant as “loud and obnoxious”. Thedefendant mentioned that the complainant owed him $500.00 but the latter was “rude” in responding so he dropped the subject.

Afterthe complainant left the party, those inside the shop heard the roar of an engine. On going outside, they saw that the complainant had lefton the ATV. The owner of the vehicle and defendant went on foot to find it. The defendant saw it parked outside the complainant’shome. He testified that he went to the front door and knocked. There was no response, so he knocked louder. He said the complainantopened the door and asked, “What the fuck do you want”. The defendant said he wanted the keys to the ATV and the $500.00 owed.The complainant then punched him several times and knocked him out.

The defendant remembers nothing more until awaking at hishome with a gash under his chin, a swollen face, and sore eardrum and shoulder. [12] The defendant admitted he was drinking but insists he had three beers and was not drunk. He also acknowledged he shouldnot have raised the issue of $500.00 owed after knocking on the complainant’s door at 1 AM. He explained that he was in a “foulmood” because of the previous dispute over the debt. [13] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397.

A criminal trial is more than a credibility contest between different versions of events. Tosupport of finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adducesevidence, that standard is not met if the evidence (

i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or(iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant isguilty. [14] The aforementioned test does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessedin context of the entire case. In this regard, Justice Durno stated as follows in R v Woollam 2012 ONSC 2188 , [2012] O.J. No.3867, (Ont. S.J.), (leave to appeal refused, [2013] O.J. No. 5300 (Ont.

C.A.): 176 Reading the reasons as a whole, His Honour's analysis is consistent with counsel's submission and binding authorities. There isnothing to suggest His Honour engaged in the bifurcated analysis the appellant contends, examining J.P.'s evidence and finding it

believable before examining the appellant's and other evidence favouring him. 177 His Honour's analysis is consistent with the Court of Appeal judgment in R. v. Hoohing. At paragraph 15, Feldman J.A. held: ... A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying thefirst two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused's version of events or whether itleaves them with a reasonable doubt.

Clearly they can only do that by assessing the accused's evidence and the other evidence thatfavours the accused in the context of all the evidence. See R. v. Hull, (ON CA), [2006] O.J. No. 3177 at para. 5(C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given thatis contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or inthe case of an accused, may no longer raise a reasonable doubt. 178 The trial judge found the Crown's evidence overwhelmed the appellant's.

In doing so, he referred to and applied binding judicialprecedents including R. v. J.J.R.D., where Doherty J.A. observed: The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trialjudge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant'sevidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt.

An outright rejection of anaccused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credibleevidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the waythe accused testified or the substance of the accused's evidence. 179 There is nothing in the Reasons for Judgment from which it could be inferred the trial judge failed to approach the conflictingevidence appropriately.

A trier of fact examines all of the evidence and assesses the witnesses' evidence for internal consistencies,external consistencies, demeanour, and whether a witness' evidence accords with logic, common sense and human experience.

After thatanalysis is made, conclusions are reached, and W.(D.) applies in relating the Crown's burden of proof to the credibility issues. [15] The Defence submitted that “it makes no sense” that the defendant would walk into the bedroom to watch others engaged insex, especially having to the fact that he did not have a social relationship with the complainant and had never met his partner. It isargued that “it makes more sense” that there was a fight on the porch after the defendant knocked on the door to obtain the keys to thevehicle the complainant had previously taken.

It is also pointed out that there is no evidence the defendant had a sharp object in hand orthat he used it in the altercation with the complainant. [16] The Crown argues that the defendant’s actions can only be explained by drunkenness; “he stumbled into the house and into afight”. In this regard, it is noted that there is no reason I should not accept the testimony of Ms Vanderklugt. She was sober, had nohistory with the defendant and is no longer in a relationship with the complainant.

The Crown portrayed her as an independent andtrustworthy witness. [17] I accept the Crown’s submissions with respect to the evidence of the defendant and Ms Vanderklugt. The latter impressedme as a truthful and reliable witness. She was shocked by the suggestion the defendant was not in the house and responded, “What!?, Hewas there”. Her reaction was not feigned. There is nothing in the record to suggest she is mistaken about seeing a stranger in herbedroom demanding to watch her have sex or that she lied about this. Her testimony was not successfully challenged or undermined byother evidence.

Indeed, her evidence about the defendant’s demeanour was not challenged at all. Ms Vanderklugt noticed thedefendant’s speech was slurred and that he “made no sense”. The defendant’s version of events confirms this suggestion that he wasdrunk. Having dropped the subject of the debt because of the complainant’s “obnoxious” attitude earlier, it is more than strange that heshould raise the issue again in the early hours of the morning outside the complainant’s home. Moreover, the debt had nothing to dowith his stated purpose in confronting the complainant.

He was clearly intoxicated and this is why he found himself at the home inquestion. I am convinced he also entered it. Such action is consistent with drunkenness and his denial of it is contrary to evidence that Iaccept beyond a reasonable doubt - the testimony of Ms Vanderklugt. I reject the defendant’s evidence. [18] I am not concerned about the complainant’s sincerity. He did not embellish his narrative and fairly conceded some pointsfavourable to the defendant. That said, there is no question he was drunk and his testimony must be approached with caution.

I am notprepared to rely upon his testimony if not independently confirmed. On the strength of Ms Vanderklugt’s testimony, I am confident thecomplainant is correct in stating the defendant entered his bedroom, spoke “gibberish” while demanding to watch him have sex, andforced him out of the home. [19] I am certain the defendant was in the bedroom. However, Ms Vanderklugt did not see what happened outside, after thecomplainant forced the defendant out of the home.

Since the defendant was escorted away from the property before the police werecalled, it is not known if he possessed a knife or other sharp object at the time of the fight. In any event, in the absence of other evidence,I cannot rely on the complainant’s assertion that he felt a “sting” to his arm when the defendant turned on him. In the result, I cannotdetermine how and when the complainant was cut. Accordingly, the defendant is found not guilty of assault causing bodily harm. [20] With respect to the remaining charge, I find that the defendant entered the complainant’s home without lawful excuse.

Thisis one of the elements of the offence. The Crown must also prove that he did so with intent to commit an indictable offence. There is nodoubt that once inside the bedroom, the defendant demanded to watch the occupants have sex. He may also have said he wanted to jointhem. Neither Ms Vanderklugt nor the complainant observed him to say or do anything else. Indeed, the complainant testified thedefendant did not threaten or assault or damage property while inside the home.

Accordingly, the defendant is not guilty of this offenceunless his act of standing in the bedroom and demanding to watch the others have sex constitutes an indictable offence. In my opinion itdoes. [21] On my findings of fact, the defendant is guilty of mischief pursuant to section 430(1). There can be no question that hisactions interfered with the lawful use, enjoyment, or operation of property; R v Maddeaux (ON CA), [1997] O.J. No.1184. However, he is not charged with this.

Significantly, for the purpose of my verdict, the Court of Appeal for Ontario has held thatthis is not an included offence to the charge of unlawful entry in a dwelling house; R v Boyo (ON CA), [2000] O.J.

No. 888 . [ 22 ] The defendant unlawfully entered a dwelling house with intent to commit an Indictable offence, namely mischief. He is, therefore, found guilty of that offence. Released: February 27, 2015 Signed: “Justice J. De Filippis”