R. v. Taylor, 2010 ONCJ 340

COURT FILE No.: Central East Region-Newmarket 09-09904 DATE: 2010·05·05 Citation: R. v. Taylor , 2010 ONCJ 340 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER TAYLOR Before Justice Peter C. West Heard on May 5, 2010 Reasons for Judgment released on May 5, 2010 Mr. D. Kasko ............................................................................................................. for the Crown Mr. Ratusny .............................................................................. for the accused Christopher Taylor WEST J.: [ 1 ] Mr.

Taylor is charged that on October 23, 2009 he did assault and utter death threats to Brittney Winrow. He pled not guilty to these charges. [ 2 ] The Crown called one witness, Brittney Winrow who is the wife of the defendant. The defence called no evidence. This is essentially a “she said/he said” domestic case. The complainant and the defendant were the only ones involved in the altercation and there were no witnesses. [ 3 ] Ms. Winrow and Mr. Taylor dated for approximately three years before getting married sometime in the summer of 2009. They have a two year old son together. Mr.

Taylor’s daughter from a previous marriage who is nine years of age sometimes resides at their home. Ms. Winrow, at the time of this altercation, was not working but remained at home to look after their son. [ 4 ] On October 22, 2009 Ms. Winrow’s grandfather passed away while he was a patient in the intensive care unit of the hospital. Ms. Winrow and Mr. Taylor had visited just before he died at the hospital and spent some time with him although he was incoherent. Ms.

Winrow was very close to her grandfather and she testified that his death upset her greatly. [ 5 ] Shortly after her grandfather’s death while she was at home she received a telephone call from a woman, Kim, who advised her that she had been sleeping with Mr. Taylor for two months. Ms. Winrow did not know this woman but this revelation was extremely upsetting, particularly having regard to the fact that she was already emotionally upset by her grandfather’s death. The call came about an hour before Mr. Taylor was to come home. [ 6 ] Ms. Winrow described that she waited for Mr.

Taylor to come home from work, sometime after 7 p.m. when she immediately confronted him about what Kim had told her. Mr. Taylor denied the allegation. Ms. Winrow described her emotional state as being hysterical. She verbally attacked Mr. Taylor as soon as he walked into their home. She testified that Mr. Taylor consumed a number of bottles of beer after he came home. She continued to bicker with him and accuse him of sleeping with this woman Kim. He repeatedly denied that he was involved with this woman. [ 7 ] At some point they decided to watch a movie and they sat on separate couches in the living room.

The children were apparently asleep upstairs. While the movie was on Ms. Winrow testified she began to cry hysterically and uncontrollably. Mr. Taylor sat beside her and put his arms around her trying to console her. She began to scream and yell at him. Mr. Taylor got up from the couch to leave and she followed him and pushed him. She continued to yell at him that he was cheating on her. She followed him from the living room to the kitchen and back into the living room. She was flailing her arms and hands at him. [ 8 ] Mr. Taylor told her to stop hitting him.

When they were in the living room she slapped him while she was flailing her arms. Mr. Taylor grabbed her by her upper arms to prevent her from hitting him. He asked to stop hitting him and to calm down. She testified that she did not stop. While he was holding her arms she was kicking at him with her feet and continued to try and hit him with her hands. She testified that she was mad and infuriated. She told Mr. Taylor she hated him. According to her evidence, it was during this altercation in the living room that they both went to the floor.

[ 9 ] When they went to the floor her left cheek hit the hardwood floor and it was bruised. Ms. Winrow described that when they fell to the floor “they were both struggling, I was trying to hit him and he was trying to hold me.” Mr. Taylor continued to hold Ms. Winrow’s arms to prevent her from striking him because she was still kicking and flailing her arms. He told her that he would let her go if she promised to stop hitting and kicking him. She agreed and he let go of her arms. She then ran from the living room and went into the bathroom. [ 10 ] In cross-examination, Ms.

Winrow testified that she was on the verge of a mental breakdown when this altercation occurred. She indicated that when they were on the couch and Mr. Taylor was attempting to console her because she was crying hysterically, she just “snapped on him.” When he got up to walk away, she followed him, pushed him, flailed at him with her arms, kicked at him and slapped him. She testified that when Mr. Taylor grabbed her arms he was trying to defend himself from her. She agreed that when he was holding her arms it did not hurt her. [ 11 ] Exhibits 1 and 2 are photographs of the left side of Ms.

Winrow’s face which depict a bump and slight bruising to her left cheek. [ 12 ] Ms. Winrow testified that she ran to the bathroom after Mr. Taylor let go of her arms because she was still upset and angry with him. She had no intention of calling the police but when she got into the bathroom one of the cordless phones was there. Mr. Taylor was outside the bathroom telling her that he wanted to talk to her. She testified that it was an impulsive decision to call 911. She said that she didn’t think about she just did because she was angry with him for cheating on her. [ 13 ] Ms. Winrow said that Mr.

Taylor heard her dial the phone and he was begging her not to call, that he loved her and he would kill her if she did it. She testified that at the time he said this to her she did not take it as a threat. She used his words “against him” because at that time she “just wanted him to be removed from the house.” She testified, in chief and in cross, that she told this to the police officers who came to the house and to the officer the next day in her audio statement.

She told them the truth about this, that she did not feel threatened and that this was only his manner of speaking. [ 14 ] She testified that she hung up because she was going to talk to him but 911 called back before they had a chance to talk. The 911 operator told her to not speak with Mr. Taylor but go to another part of the house until the police arrived. Ms. Winrow testified that during the 911 call she was still very angry and upset with Mr. Taylor and that she was exaggerating what had happened. She testified that during the 911 call she had said that Mr. Taylor choked her.

This was not true, this had never happened. She further testified that when she listened to the 911 tape before testifying and it was absolutely ridiculous. [ 15 ] Ms. Winrow testified that in her written statement to the police that night and in her audio statement the next day she said that Mr. Taylor was not threatening when he said what he did outside the bathroom. She never took it as a threat. Further, she told the officers in both statements that Mr. Taylor was only holding her arms to console her or prevent her from hitting him or to try and get her to calm down. [ 16 ] As in any criminal case, Mr.

Taylor is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’s testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.D. (1991), 1991 CanLII 93 (SCC) , 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 1997 CanLII 319 (SCC) , 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40 (CanLII) , 147 C.C.C. (3d) 449 (S.C.C.).

Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. [ 17 ] I found Ms. Winrow to be a credible witness. Her evidence was internally consistent. Her position is that Mr. Taylor did not assault her, that the bump and bruise on her left cheek was caused as a result of her attacking Mr. Taylor and attempting to hit or slap him. She describes the two of them falling to the floor when she was attempting to hit and kick Mr. Taylor and he was holding her arms to prevent her from doing this.

This is when her cheek hit the hardwood and the bump and bruise depicted in the exhibits was caused. She testified this is what she told the police in her statements. Her statements were not put to her by Mr. Kasko to either refresh her memory, nor was there any application by the Crown to cross examine Ms. Winrow because her evidence in court was different from what she told the police that night. [ 18 ] The sequence of events which were described by Ms. Winrow as to how the bump and bruise were caused did not involve an assault on her by Mr. Taylor. It occurred while she was attempting to assault Mr.

Taylor and he was trying to prevent the assault. Her description is certainly consistent with the photographic evidence. [ 19 ] I accept her evidence on this issue and I find that Mr. Taylor did not assault Ms. Winrow and I dismiss this charge. [ 20 ] With respect to the charge of uttering a death threat, it was Ms. Winrow’s evidence in court that Mr. Taylor was not threatening her and that, at no time, did she feel threatened. She testified that she was angry and upset with Mr. Taylor and just wanted him out of the house because he had been cheating on her with another woman.

She admitted that she had exaggerated and lied on the 911 call about Mr. Taylor threatening her. She said the things she did to get back at him and get him out of the house. Further, she volunteered in her evidence that she had made up an allegation that Mr. Taylor had choked her during the incident. This was not true. In fact, Mr. Taylor was never charged with the offence of choking. [ 21 ] The 911 tape was not played during this trial. Perhaps it might have shed some light on the evidence given by Ms. Winrow; however, it was not introduced by the Crown. Ms.

Winrow testified that she told the officers who came to the house and the officer the next day when she gave an audio statement that she did not think that Mr. Taylor was threatening her. Again, her statements were not put to her by the Crown to refresh her memory nor was there an application by Mr. Kasko to impeach her testimony in court. I can only conclude therefore that she did tell the officers the same version that she testified to in court. [ 22 ] Consequently, given Ms. Winrow’s evidence that she did not feel threatened, that she did not believe Mr. Taylor meant

what he said to be taken as a threat and that she had exaggerated and lied about what had occurred during the incident during her 911 call, in my view, the Crown has wholly failed to meet its burden of proof beyond a reasonable doubt. I accept Ms. Winrow’s evidence on this issue and I find that Mr. Taylor did not threaten her and I dismiss this charge as well. Released: May 5, 2010 Signed: “Justice Peter C. West”