R. v. Saba, 2012 ONCJ 626

COURT FILE No.: Halton 11- 3010A DATE: September 20, 2012 Citation: R. v. Saba , 2012 ONCJ 626 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SAMUEL SABA Before Justice R.

Zisman Heard on May 17, July 11, and August 1, 2012 Reasons for Judgment released on September 20, 2012 Emily Percorella .................................................................................................... for the Crown Joseph Seib ....................................................................................... for the accused Samuel Saba ZISMAN, J.: INTRODUCTION [ 1 ] Samuel Saba is charged with assaulting and uttering a threat to cause death to kill Joanne Villamia on September 25, 2011. [ 2 ] The Crown elected to proceed summarily and called as its only witness the complainant, Ms Villamia. [ 3 ] Mr.

Saba testified in his own defence as did his sister Leena Silver and his friend Patricia Lewis. [ 4 ] The date, identity and jurisdiction were admitted. The exhibits entered on consent, included photographs of the complainant’s injuries, photographs of the defendant, medical notes from the complainant’s doctor, photographs of various text messages, the defendant’s telephone records, copies of police reports and an information filed by Ms Silver to obtain a peace bond against the complainant. [ 5 ] The complainant is 29 years old and met the defendant on a dating internet site on June 29, 2009.

They had an on and off relationship for about three years. The defendant is 37 years old and works as a stand-up comedy show producer and director. [ 6 ] The complainant testified that she went to the defendant’s apartment on September 24 th , 2011, that she stayed overnight and that in the middle of the night they had an argument and the defendant assaulted and threatened her. [ 7 ] The defendant denies this every happened. It is his evidence that the complainant turned up at his apartment, uninvited and he would not let her in.

It is his theory that the complainant made up the entire incident because she was concerned she would be charged as the defendant had reported her to the police. [ 8 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown. THE EVIDENCE [ 9 ] The complainant explained that after she met the defendant they saw each other initially every weekend, then every couple of months as the complainant lived in Toronto and the defendant lived in Oakville.

Although the complainant’s evidence was unclear as to when the relationship ended, since the incident on September 25, 2011 she and the defendant have had no further contact. [ 10 ] The complainant testified that she and defendant had made arrangements to go the African Lion Safari on September 24, 2011. When the defendant did not show up as arranged she called him at 10:00 a.m. and he told her he had a fight with his sister, with whom he was living, because his sister did not want him to see her anymore. He told her his sister took the car but that he might take a

bus or train to come and see her. The complainant spoke to the defendant again at 3:00 p.m. and he told her that he was not coming. [ 11 ] The complainant testified that she then told the defendant she was coming to his place even though he told her not to come. She explained she wanted to clarify what was going on and why his sister was telling him to stay away. However, she then testified that the defendant’s sister had told her to stay away from the defendant. [ 12 ] The complainant left at 6:00 p.m. and took the train from Toronto to Oakville and arrived at the defendant’s apartment at about 9:00 p.m.

The defendant was alone in the apartment. According to the complainant, the defendant let her in and they had sex. As it was about midnight and too late for her to take a train home, the defendant let her sleep over. She slept on the sofa and the defendant slept on the floor of the living room. [ 13 ] At about 2:00 a.m. she woke up and couldn’t sleep and took a picture of the defendant. He woke up, was upset, angry and “looked like a monster” who could kill her.

In an angry, high pitched voice he told her he was tired of everything she was doing, accused her of getting his password on his Facebook account, talking to his friends and stalking him.

He grabbed her cell phone, he punched her first with a closed fist on top of her head five or six times, when she put her hands up to protect herself, he grabbed her hands down and slapped her with an open hand on the right side of her face around her cheek and eye area and hit her hard enough to make her nose bleed. [ 14 ] When she told him that maybe they should call 911, he told her it was not necessary and he helped her clean up and her nose stopped bleeding after a few minutes.

She testified that when the defendant was hitting her she was speechless, the assault was only a few minutes but they had argued for about half an hour to an hour. [ 15 ] The complainant testified that nothing else happened. It was only after she refreshed her memory, after reviewing her statement to the police, that she testified that the defendant warned her that if she told the police he would definitely find her and kill her.

The complainant testified that she believed the defendant and took the threat seriously because of the defendant’s tone of voice. [ 16 ] The complainant did not leave the apartment immediately even though she was afraid of the defendant because the defendant had her cell phone and the phone was important to her as all her contacts were in the phone. [ 17 ] At about 7:00 a.m. the defendant walked her to the Oakville train station and only then gave her back her cell phone. The defendant grabbed her right arm because he wanted her to take the early train but she wanted to sit and wait at the train station.

She testified that she wanted to think about what happened and maybe go herself to African Lion Safari as it was in Hamilton which was not that far from Oakville. Although she also testified that she had a pre-arranged doctor’s appointment in Toronto but then said it was not a scheduled appointment. [ 18 ] The complainant took the 9:00 a.m. train back to Toronto and went to her doctor’s office. At about11:00 a.m. while she was waiting in her doctor’s office, she received a telephone call from Constable Willis of the Halton police telling her that the defendant accused her of stalking him.

The officer told her not to communicate with the defendant and he sounded convinced that she had been stalking the defendant. She was surprised that the officer knew her address because she did not think the defendant knew where she lived and so she was worried. She was also surprised that the defendant would contact the police.

The complainant then told Constable Willis that the defendant has assaulted her and he told her to contact the Toronto police to make a report, which she did. [ 19 ] The complainant testified that she would not have reported the incident to the police because she was afraid of the effect of any police involvement on her employment and was worried that because the defendant reported her, she would have a criminal record.

The complainant was working for an elderly couple as a caregiver and they had sponsored her. [ 20 ] In cross-examination, the complainant agreed that she was aware that the defendant did not want to have contact with her on September 24 th but then she testified that later he let her come over and sent her a text that his sister was away for the week-end.

She initially confirmed that she told Constable Bourque of the Toronto police department that they had a long argument and then had sex but then changed her evidence to state that they had sex immediately and then had the argument. [ 21 ] The complainant explained that while waiting at the train station, her first thought was that she had a doctor’s appointment that day and that she would tell the doctor what happened but then when reminded that she had testified that she was still thinking about going to African Lion Safari on her own, she testified that the doctor had wanted her to have blood tests and there was no fixed date for the appointment. [ 22 ] The complainant testified that she did not think her injuries were serious.

She testified that she told her doctor about the assault on September 25 th but could not explain why there was no reference in the doctor’s note of that day. The doctor’s note of September 25 th indicates that the complainant was still complaining of nose bleeds for the last 2 months and that the most recent incident was the night before. The doctor also noted that there was a family history of nose bleeds and that the complainant easily bruised. [ 23 ] The complainant returned to the doctor the next day, September 26 th .

The doctor’s note indicates that the complainant stated that her boyfriend hit her with an open palm on the face the night before and that her nose began to bleed again. The note indicated that her nose bleeds had occurred on and off for 2 months, there was superficial swelling on the right side of her face and a bruise on the right upper arm and the complainant reported that she had pain after being gripped hard by her boyfriend. [ 24 ] The complainant denied stalking the defendant.

She agreed that she had strong feelings for the defendant and was hoping to marry him but that changed when the defendant’s sister told her to Google the defendant and find out about his criminal record. She testified that the relationship went downhill in October 2010 when she invited the defendant to her friend’s birthday party and the defendant began to date her friend’s tenant [ 25 ] The complainant also agreed that in December 2010, the relationship was over and the defendant changed his telephone number and they had no contact until May 2011. But then the defendant contacted her and they went out again.

He then gave her his

new telephone number. However, when the defendant’s sister testified, it was her belief that the complainant pretended to be her and obtained the defendant’s new cell phone number from the defendant’s employer. [ 26 ] The complainant agreed that she had sent the defendant a number of text messages [1] that were entered as exhibits. She changed her evidence several times as to whether they were sent in January and February 2010 or 2011. The complainant explained that the texts when she was angry because the defendant cheated on her.

She also testified that she wanted to get back a toy she had given to the defendant and that was the reason for telling him she would call the police. The complainant also testified that she was also just replying to the defendant’s texts and that she was not serious it was just the nature of their relationship. [ 27 ] A sample of some of these texts are: January 14 th 1:17 pm: U mess with s wrong bitch.

January 15 th 2:58 pm: Dats wat u get fr lying n cheating January 15 th 2:58 pm: I will fuck all ur friends February 7 th 11:38 pm: I love u 3 times a day February 9 th 8:08 pm: I will report u to police February 9 th 8:09 pm: Im sory for giving u trouble u pissed me off to the limit February 9 th 8:15 pm: No I want to teach y a lesson.u shud go to jail February 9 th 8:25 pm: I will pone ur bos I tel dem u stealing d steak, olive, salami, chese February 9 th 8:26 pm: I will visit u nd jail.n laugh at u.

February 9 th 9:44 pm: U better be in jail rather than fuck pusy February 11 th 9:53 pm: I will stop wen u r in jail o cemetery February 12 th 2:06 pm: Do u hate me? [ 28 ] The complainant also agreed that she sent the defendant a text dated September 8 th but did not agree that it was sent in 2011, it said, “Just never let me know you fuck some pussy I will definitely cut your dick with not even a word of explanation” [ 29 ] The complainant denied that these texts were threatening or harassing. She testified that the defendant also sent her texts of a similar nature.

She explained that this was the nature of their relationship and afterwards they resumed their relationship. [ 30 ] The defendant’s phone records for several months in 2011 indicate that he received on over a 1000 texts a month but also about the same number or slightly less were sent.

However, the records of course do not indicate to whom the texts were sent or from whom they were received. [ 31 ] The complainant denied that she sent a text to the defendant on September 25 th , 2011 at 7:43 a.m. that stated, “I love you.” She testified that this was the time that the defendant had her cell phone as they walked to the train station and he gave it back to her after this time. [ 32 ] The complainant agreed that she did not tell Constable Willis about the assault until the end of their conversation and did not mention any threat but only mentioned the threat to Constable Bourque when he took her statement in Toronto.

The complainant agreed that when she reported the incident of September 25 th and when asked by Constable Bourque if she was afraid of the defendant she replied, “not really”.

The complainant then tried to explain this response by saying that initially she was happy in the relationship and doubted the defendant could hurt her but that he then told her he was part of the military and a professional sniper and that she was fearful of him. [ 33 ] The complainant also explained in cross-examination that she provided her cell phone to the police and she mentioned that she took a photo of the defendant inside the apartment but that the defendant deleted the photo when he took her phone. The original and the enhanced photo were entered as exhibits.

The complainant denied that she had changed the date or time on the photo. The date and time stamp indicated September 25 th at 1:52 a.m. [ 34 ] The complainant testified that once her employer, an elderly couple, found out the defendant assaulted her, they revoked her sponsorship because they were afraid that the defendant would come after her and they would not be safe. She was scheduled to be deported on June 30, 2012. [ 35 ] The defendant testified about the havoc the complainant caused him and his sister. He testified that the complainant had

a history of stalking and threatening him. She would telephone him, contact him on internet, send him hundreds of text messages, turn up at this apartment and place of employment, hit herself and threaten to kill herself if he would not marry him, threatened his five year old niece, damaged his property, posted his criminal record on Facebook. He testified that he would give in and sometimes go out with her. [ 36 ] The defendant testified that in February 2011, he reported the complainant’s behaviour to the police and showed them her text messages. He blocked her from calling him and changed his telephone number.

He was uncertain about the year he did this, he thought it was 2010 and he was uncertain about when he made other reports to the police as he had been in custody for some time and was unclear about dates. [ 37 ] The defendant testified that on September 24 th , 2011, he was at his friend, Patricia Lewis’ home helping her and another friend wash some cars for an employment project she had.

He identified a photo of himself, his friend and Ms Lewis washing the cars. [ 38 ] During the day, the complainant kept calling him saying that she wanted to go to African Lion Safari and he sent her a text saying that he did not want to see her. [ 39 ] He walked home and arrived before 9:00 p.m. as he had a curfew as a term of his release for an outstanding criminal charge. He testified that his sister was his surety and he was living in her apartment with her and his niece. [ 40 ] The complainant turned up at his apartment door at about 9: 05 or 9:10 p.m. and he would not let her in.

She made a scene, hitting herself a few times, yelling and then grabbed her knapsack and walked away. [ 41 ] The defendant testified that his sister was in Ottawa and he sent her a text that night telling her what happened but as she had her phone turned off she did not see the text until the next day. [ 42 ] The defendant denied that he assaulted the complainant.

When examining the photos of the complainant’ s injuries, he testified that the mark on her right arm had been there for a long time and the blamed the mark on a knapsack that the complainant always had with her that was on wheels and had an expendable handle. With respect to the photos of the complainant’s facial injuries, he pointed out that they were not clearly visible.

He denied that the photo the complainant testified she took of him in the early hours of September 25th was him or that it was a photo of his sister’s apartment. [ 43 ] The defendant went to the police the next morning with Patricia Lewis to file a complaint against the complainant.

Later that day, he received a call from the police advising him that the complainant made allegations against him and he would be arrested. [ 44 ] In cross examination, when asked to clarify why he would resume his relationship with the complainant, the defendant explained that she used certain things that she knew about him against him and that he would go out with her against his will.

Although their relationship lasted off and on for about three years, he only saw her fifteen or twenty times and went out with other women. [ 45 ] During December 2010 or the winter 2011, the defendant testified that the complainant threatened that if he did not see her she was part of a Philippine gang and would get her friends to come over, beat him up and throw him in Lake Ontario.

He claims that he showed the police the text but they did not take him seriously because of his police record and that he could not now find the text. [ 46 ] The defendant’s evidence about when he contacted the police was vague but eventually he seemed to agree that he did not contact the police until February 2011 to report the complainant’s threats. [ 47 ] The defendant alleged that in the summer of 2010 the complainant slashed his tires and that there were scratches on his car that he did not report to the police. [ 48 ] The defendant also alleged that about a week before this incident, the complainant threatened his niece and his sister about thirty times.

When asked why he did not report this to the police, he then testified that he reported it in February 2011.

He tried to explain that he meant that his sister reported feeling threatened and uneasy because of her daughter but the actual threats only happened in September 2011. [ 49 ] The Crown then read to the defendant the police report filed in February 2011 and he agreed that it made no mention of any threat to his niece. [ 50 ] The defendant was then asked why he had not immediately called the police as instructed to do when the complainant turned up at his apartment on the evening of September 24 th , and he gave various explanations.

He had taken medication and needed to go to sleep, he did not want to cause a commotion at his sister’s apartment, after he shut the door the complainant left anyways so even if he called the police she would have been gone by the time they arrived. He felt sorry for the complainant. He went to the police the next day. [ 51 ] The defendant could not explain why he had been able to provide copies the texts of January and February 2010 [2] but not the recent texts of September 2011 threatening his niece.

He could not explain why he did not have copies of texts the complainant sent him on September 24th when he testified that she kept calling him but he did have the text she allegedly sent him on September 25 th at 9:45 a.m. saying she loved him. [ 52 ] The defendant testified that as he was in jail he had asked his sister to provide copies of the texts on his phone. He also testified that all of the texts, even if deleted, could be retrieved from his phone.

He then blamed the police as he had offered to provide them with his cell phone for analysis when he was arrested but then agreed he had never offered the police his phone until he mentioned it in his testimony. [ 53 ] The defendant agreed that he did not have copies of the emails that he testified the complainant sent him because he could

not recall his password to give to his sister so she could retrieve them. The defendant agreed that he kept the naked picture of the complainant she sent him on his phone but not her texts which would have been more proof of her harassing him. [ 54 ] When questioned as to why his employer was not called to give evidence to corroborate his testimony about the complainant showing up at his workplace and the complainant hitting herself and threatening to kill herself, he testified that his boss was busy and a decision was made not to call him.

He also testified that his sister’s neighbours heard the complainant making a commotion at his door, but that they were not called to corroborate his evidence because they did not speak English well and a decision made not to call them as witnesses. [ 55 ] Leena Silver is the defendant’s sister. The defendant lived with her and her daughter, as she was his surety on unrelated criminal charges, from December 2010 until his arrest on these charges.

She testified that she first met the complainant when she turned up at her apartment uninvited sometime in 2010. [ 56 ] When the defendant was arrested in December 2010, Ms Silver went to pickup his belongings that included his cell phone. The complainant kept calling and texting her brother’s phone. Ms Silver told the complainant to stay away from her home. She also had a long discussion with the complainant and told her that her brother did not want to marry her.

In cross-examination she explained that she was aware the complainant wanted to marry a Canadian citizen so she could remain in Canada but as her brother had a criminal record she told the complainant he would not be able to sponsor her. [ 57 ] Ms Silver testified that she had told the complainant several times to stay away from her home and that her calls at midnight and after midnight were not appreciated.

The complainant called or sent her texts about 15 to 20 times but she was unable to produce them because when her Blackberry had been repaired and all of the messages were deleted. [ 58 ] Ms Silver testified that she had filed several police complaints with the Halton police about the complainant and the police had come to her apartment several times. When cross-examined further on this issue she could not explain why the only report on file was in February 2011 and then on September 27, 2011, after the defendant’s arrest.

But she clarified that when she called the police on September 27 th , it was to find out where her brother was not to complain about the complainant. [ 59 ] Ms Silver testified that the police would not do anything since the calls and texts were not harassing but on the advice of the police she tried to obtain a peace bond against the complainant.

The information for the peace bond was sworn on December 15, 2011 and the grounds stated were that the complainant was continuously harassing her by contacting her and that the complainant had informed the defendant that she would harm her daughter if the defendant did not change his mind and marry her. Ms Silver agreed that she had not heard the threat herself.

She testified that she attended at court several times but as the complainant had not been served, the information was marked as withdrawn on June 21, 2012 and she was told she should start the process again. [ 60 ] About a week before the incident in September 2011, the complainant kept calling and texting her that she wanted to come to her apartment to pick up a toy she had given to the defendant.

Ms Silver told her she was away on business, that she was not to come to her apartment and that she knew her brother was not allowed to have anyone at her home. [ 61 ] Ms Silver testified that the complainant called her again the week-end of the incident but was not clear about the date. In cross examination, she produced an undated text message that she testified she received from the complainant that said, “Can you get the toy for me? I want to pick it up this afternoon . I will come over. Why aren’t y talking to me. Can y ask sam to give it back.

Do you hate me ?” Ms Silver testified that she sent the complainant back a text not to come over. [ 62 ] In her direct examination, Ms Silver was unclear about when she spoke to the defendant during the week-end of the alleged incident or about when she sent texts to the defendant. [ 63 ] In cross examination, she explained that she was talking to the defendant throughout the week-end of the incident and he has sent her photos of him working with Ms Lewis washing cars. She spoke to him again as he was walking home and she recalled it was close to his curfew.

The defendant then called her again when he was home and told her that the complainant was sitting outside the front door of the apartment building and she told him to call the police immediately. She testified she spoke to the defendant later that night and he told her that he had an appointment to go the police the next morning.

She assumed he had called the police that night. [ 64 ] When asked to explain the text she sent to the defendant on Sunday September 25 th , “Sam, I want to talk to you now or I’m sending the cops to the apartment myself”, Ms Silver testified that she sent it because she couldn’t reach the defendant in the morning and she was not sure if he had called or gone to the police. She further explained that the defendant did not answer the phone if he did not know who was calling and that was the reason she sent him the text.

Ms Silver denied that she sent him the text because she was worried the defendant’s surety he had breached his curfew since she hadn’t heard from him and she was his surety. [ 65 ] Ms Silver testified about an incident in June 2011 when she went to pick up the defendant at a bar he was working at. It was about midnight and her daughter was with her and she saw the complainant hit herself, throw herself on the ground and that she was ”acting like a crazy nut in front of her daughter” begging the defendant to come back to her and marry her.

When asked in cross examination why she would be there with her four year old daughter, she explained she was the defendant’s surety so she had to pick him up and that she did not report the incident to the police because she felt sorry for the complainant.

When reminded that she had already testified that she had reported the complainant to the police, she changed her evidence and said that she did not really feel sorry for the complainant but the police would not listen to her because the complainant was the defendant’s girlfriend. [ 66 ] Ms Silver denied that the defendant had asked her to bring his telephone records to court but when told the defendant had given this evidence, she then recalled that he had asked her to do this but denied changing her testimony and stated she was just trying to remember. [ 67 ] When shown the photo that the complainant testified she had taken of the defendant in the early hours of September 25th in the apartment, Ms Silver laughed and denied that was her apartment.

She testified that the defendant slept in his own bedroom in her

apartment. [68] Both Ms Silver and Patricia Lewis testified that they had driven to court on the first day of trial together in Ms Lewis’father’s truck. The truck was parked in the courthouse parking lot and when they left court, the truck had been keyed with swirls andthe initials “VA”. They both suspected the complainant did this but agreed they did not see her and that these were not her initials. [69] Patricia Lewis testified for the defendant. She has known the defendant for four years and was his girlfriend.

She knewthe complainant because she was the defendant’s former girlfriend but had only seen for once time in June or July 2011 when she was ata bar watching the defendant perform. [70] She confirmed that the defendant was with her and another friend on September 24th, 2011 as they were building a box tostore some vintage cars for the winter and washing them and identified the photo of them that she had taken. (Exhibit 4). [71] She testified that on September 25th, the day the defendant was arrested, the defendant showed her a picture of her houseon his cell phone which the complainant took and sent to him.

She was afraid of the complainant as she was now the defendant’sgirlfriend and the complainant had threatened to damage her property. [72] However, in cross examination, Ms Lewis could not recall when the defendant showed her the photo of her house and sheconfirmed that it was the defendant who told her that the complainant took the picture.

She clarified that she had not seen thecomplainant’s texts herself but that the defendant told her the complainant was sending him texts. [73] Ms Lewis admitted that she went with the defendant to the police station on the morning of September 25th and that thedefendant had told her to lie to the police.

She admitted that she lied about having seen the complainant outside the hallway of thedefendant’s apartment with luggage, that she lied about seeing the complainant with bruises, lied about the defendant’s sister being in the apartment, lied about seeing the complainant taking photos outside her house on September 24th, lied about the defendant telling the complainant to leave on September 24th and that she wouldn’t leave. [74] Ms Lewis also admitted that her concerns about the complainant damaging her property were based on what thedefendant told her.

POSITIONS OF THE PARTIES [75] Counsel for the defendant submits that despite Ms Lewis’evidence the court should be left with a reasonable doubt basedon the complainant’s evidence alone. There is ample evidence that the complainant was stalking the defendant, that her injuries are notconsistent with her description of the assault, that she did not initially report the assault to the police, that she did not initially report thealleged threat to the police or the assault to her doctor and that her reasons for attending at the defendant’s apartment are nonsensical.

Itis submitted that the complainant wanted to cause trouble for the defendant because of her jealousy. [76] Counsel for the crown submits that the complainant was overall a credible witness and that her text messages to thedefendant should be seen in the context of an unhealthy and volatile relationship. Further it is submitted that there is no requirement forthe complainant to report the assault to her doctor. It is also not unusual for victims of domestic violence not to file reports with the police.

The photograph of the defendant with the date and time stamp of September 25th at 1:52 am is corroboration of thecomplainant’s version of events. It is submitted that the evidence of the defendant and his witnesses should be rejected by the court inview of all of the contradictions and that they are not credible witnesses. [77] Both counsel agree that the court must apply a W(

D) analysis to the evidence. THE LAW [78] As in any criminal case, the defendant is presumed innocent until proven guilty. The defendant does need to proveanything. The Crown must prove the essential elements of the offence beyond a reasonable doubt. It is not enough for me to believe thatit probably or likely happened the way the Crown said it did. Proof of probable or likely guilt is not proof beyond a reasonable doubt. Conversely the Crown is not required to prove its case with absolute certainty.

However “the reasonable doubt standard …falls muchcloser to absolute certainty than to proof on a balance of probabilities. (R. v. Starr (2000),147 C.C.C. (3d) (S.C.C.) at p. 545). [79] This is a very high standard and for good reason. As Cory J. said in R. v. Lifchus (1997), (SCC), 118C.C.C. (3d) 1 S.C.C.at p. 6: “The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt…is one ofthe principal safeguards which seeks to ensure that no innocent person is convicted.” [80] The rule of reasonable doubt applies to the issue of credibility.

Accordingly, I must acquit the defendant if I accept hisevidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it doesnot leave me with a reasonable doubt, I must consider whether or not the evidence I do accept convinces me of the guilt of the defendantbeyond a reasonable doubt. (See R. v.

W.(D.) (SCC), [1991] 1 S.C.R. 742). [81] I recognize that this is not a civil case where the result may be determined on the basis of which of the two competingversions of events I prefer, or which is more probable, or which of the two essential witness appears more credible. As the Ontario courtof Appeal explained in R. v. Hull [2006] O. J. No. 311 at para. 5: W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest.

Put another way, theyprohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses.

[ 82 ] I must assess the evidence of the complainant and the defendant and his witnesses in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued: However, such authorities do not permit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused. [ 83 ] I have also 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. ANALYSIS [ 84 ] Having reviewed the evidence in this case, I do not believe the defendant.

He was sarcastic, evasive, argumentative, and unresponsive. [ 85 ] His explanations as to why he was able to retrieve the complainant’s text messages from January and February 2010 or 2011 [3] but not her more recent text messages made no sense. His evidence that he could not recall his password as an explanation to why he could not retrieve the complainant’s emails to him was also not believable. He attempted to blame his sister for not producing his telephone records.

He also testified that he offered the police his cell phone for analysis when he was arrested and then he admitted that he only made that offer while he was testifying. [ 86 ] His explanation made no sense as to why he would not have called the police when the complainant turned up at his apartment, uninvited on September 24th, 2011.

The defendant and his sister had already complained about the complainant harassing and stalking him and he had been told by the police to call them immediately if the complainant came to his home. [ 87 ] Most concerning is the fact that he convinced Ms Lewis to lie to the police to substantiate his version of events and to provide an explanation about the complainant’s injury being caused by a knapsack she always carried. [ 88 ] Ms Silver’s evidence was also unconvincing. She was clearly upset with the complainant’s behaviour and her intrusion in her life. She was also obviously trying to assist her brother.

Her evidence about when she spoke to the defendant on the week-end of the alleged incident was unclear and convoluted. There were significant inconsistencies between her evidence and the defendant’s evidence as to when they spoke and as to what happened. She testified that the defendant told her that the complainant was sitting outside the apartment building whereas the defendant testified that the complainant was sitting outside the apartment door and that she caused such a commotion that neighbours opened their own doors.

She testified that she spoke to the defendant and told him to call the police immediately whereas the defendant did not mention this conversation at all. It is clear that the defendant did not call the police but instead convinced Ms Lewis to go with him the next morning to the police station and file a complaint about the complainant. [ 89 ] Ms Silver also could not produce any phone records because her phone also crashed.

The one text she was able to produce from the complainant was not threatening but did indicate that the complainant had every intention of going over to her apartment to see the defendant. [ 90 ] Overall, most of the evidence provided by Ms Silver and Ms Lewis about the complainant was based on information told to them by the defendant. [ 91 ] However, I do find that the complainant was obsessed with the defendant and despite knowing that the defendant did want her to continue the relationship she continued to pursue it.

The texts she admitted she sent to the defendant, regardless of when they were sent, show a troubled woman who has no hesitation in making threats. Even though I accept her evidence that the defendant also sent her texts of the same nature, nevertheless her texts show a disturbing side of her character. [ 92 ] I found the complainant’s evidence as to their plans to go to African Lion Safari and why she attended at the defendant’s home on September 24 th to unclear and contradictory.

Although I accept her evidence that she does not know how to change the date or time of the photo on her cell phone, I am left with a doubt about whether or not the photo is a picture of the defendant in his sister’s apartment. The photo, even though enhanced, is unclear and it is impossible to identify the defendant. [ 93 ] I find the complainant’s explanation about what occurred that after the assault and the defendant’s threat to kill her difficult to accept.

She testified that she stayed in the apartment because the defendant took her cell phone despite the fact that the defendant had just assaulted her and threatened to kill her. She then walks with the defendant to the train station the next morning. Further, her explanation as to how she obtained a bruise on her arm was unclear and then she testified that just sat at the train station for a few hours thinking about going to African Lion Safari herself.

She also changed her evidence several times about having a pre arranged doctor’s appointment. [ 94 ] Although I accept that victims of domestic violence are often reluctant to report such incidents to the police, however once she decided to advise the police about the incident there would be had no reason to tell the police only about the assault but not also about the threat.

I found it surprising that the complainant did not even recall the alleged threat until her memory was refreshed during the trial. [ 95 ] Although I accept that the complainant was not required to report her injuries to her doctor, but the notes do not corroborate her evidence. According to the notes, the complainant did not even mention the assault at her appointment on September 25 th but had been complaining of nosebleeds that she was prone to have and the note indicates she had one the night before. There is no mention that the defendant caused the nose bleed by assaulting her.

On the next appointment on September 26 th , the description of the

assault in the notes does not match the complainant’s evidence. I have considered that the complainant does not control what the doctor writes and that these are only notes and not a formal report but they do raise concerns about the complainant’s credibility. [ 96 ] I have also examined the photographs of the complainant’s injuries and the injuries to her face are not visible. I accept defence counsel’s submission that if the assault happened as alleged by the complainant more visible injuries should have evident especially as her doctor’s note indicated that the complainant bruised easily. [ 97 ] In applying the W(

D) analysis to the facts in this case, I find that I do not believe the defendant or his witnesses but I do not firmly believed the complainant either. I am left with the second branch of the W(

D) analysis, that is, as I cannot resolve the conflicting evidence and cannot find exactly where the truth lies and I am therefore left with a reasonable doubt. [ 98 ] The defendant is therefore found not guilty of both charges before the court. Released: September 20, 2012 Signed: “Justice R. Zisman”