R. v. West, 2013 ONCJ 315

COURT FILE No.: Regional Municipality of Durham: 998 11 21423 DATE: 2013·06·11 Citation: R. v. West , 2013 ONCJ 315 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — George Corrie West Before Justice J. De Filippis Heard on February 2, 13, May 9, 10, 2013 Reasons for Judgment released on June 11, 2013 Mr. T. Boodoosingh..................................................................................................... for the Crown Mr. B.

Scott........................................................................................................... for the Defendant De Filippis J.: Introduction [ 1 ] The defendant is married to Erin West and they have two children together; Destiny (born in 2008) and Roman (born in 2010). This family also includes a five year old child, Ariana, who is the daughter of Ms West by a previous relationship. On May 9, 2011, Ms West told the police that the defendant had thrown hot water on her and Roman (then six months old) and he was later charged with two counts of assault with a weapon (counts one and two).

While being interviewed by the police, the complainant reported prior incidents of abuse against her. As a result the defendant was charged with these additional six offences: Four counts of assault dated December 30, 2010 (count 3), February 10, 2011 (count 4) and during the month April 2011 (counts 5 and 6) as well as two counts of threatening death during the month of April 2011 (counts 7 and 8). [ 2 ] I heard from eight witnesses: The Crown called Erin West, Connie Thirgood, and Cst. Prins. The defendant testified and also called Christa Boncheff, Rosemarie Brown, Dan Steward and Cst. McQuet.

I find the defendant is not guilty of counts 6 and 7 and guilty of the other counts. These are my reasons. Evidence [ 3 ] Ms West testified that her marriage had its difficulties; in 2009 the defendant was jailed for assaulting her and the months leading up to the May 9 th incident were “rough”. During this latter period, he was “a bully and verbally abusive”. The complainant stated that just before Mother’s Day the defendant had cursed and kicked crafts made for her by the children. [ 4 ] The complainant stated that on May 9 th , her mother dropped by to invite her and the children to dinner.

The defendant said that they could not go as he did not know where the keys to the motor vehicle were located. After her mother left, the complainant’s daughter, Ariana, asked for the keys and the defendant shouted, “If anybody else asks where the fucking keys are, I’ll smash them”. The complainant testified that “there is nothing you can do when he gets like that” and proceeded to heat up a bottle for the infant. According to the complainant this only made things worse because the defendant had already done so and became angry at the waste of baby formula. He “squirted” some formula at the complainant.

The latter thought, “okay, he’s calming down and playing” and squirted back at him from her bottle. The defendant picked up the cup of boiling water that had been used to heat the baby bottle and in three successive movements shook the cup and splashed water on her each time. The complainant testified that the hot water hit her left forearm and chest. She said her arm was red and raw but not blistered. Her chest was not injured as she was wearing a blouse. She was holding Roman at the time and the water also hit him on the chest. She quickly pulled at the infant’s shirt to prevent a burn.

She shouted “stop, the baby” but the defendant “just stared and continued to empty the cup”. [1] The complainant testified that after this, the defendant unscrewed the baby bottle and poured the contents down the back of her head. She noted that when the police attended on her later she “still had chunks of formula” in her hair. [ 5 ] Within minutes the complainant’s mother and sister, Amber, returned with ice cream for the children. The complainant said that when the defendant saw them, he “whistled as if all was calm and happy…that’s what he does after”. The complainant quietly told her

mother what had happened and the latter told her to get out of the house. The complainant refused because she feared her mother would be hurt for interfering. She testified the reason for this fear is that the defendant once told her that when his former mother-in-law intervened in a dispute with his son (by a previous marriage), he had choked the woman. After the complainant’s mother left, the defendant went to have a shower. The complainant used this opportunity to leave with her children. She pushed one in a stroller and pulled the other in a wagon, while Ariana walked with her along the road.

Once outside, she called her mother and was picked up by her in a motor vehicle. The police were then called. [ 6 ] While being interviewed by the police about the aforementioned allegations, the complainant reported other incidents of abuse. These are said to have occurred within the preceding months. The complainant testified that one or two weeks earlier, during an argument with her husband, she said she would leave him and he threatened to kill her if she took the children. In another argument sometime in April, the defendant said he would shoot her in the face.

The complainant no longer recalls the context within which this statement was made. She testified that in that same month, she was twice assaulted by the defendant. Both happened while they were in bed. On one occasion, the defendant touched the complainant’s shoulder and face. Annoyed by this, she pushed his hand away and was immediately punched in the head by the defendant, who said, “Don’t fucking touch me”. On the second occasion, the complainant awoke in the middle of the night to find the defendant on top of her with his forearm over her throat while he slapped her.

When asked if they had argued, the complainant said, “No, he did that sometimes. He would punch or hit me and roll over and go back to sleep.” That, she stated, is what he did this time and she “lay there crying”. [ 7 ] The complainant testified she was also assaulted on February 10, 2011. She remembers the date because her nephew was born that day. The birth was a difficult one for mother and child and the complainant went to the hospital to provide support.

She stated that before leaving home, at about 7:30 AM, she argued with the defendant and after “talking back” he administered a “back handed slap” to her mouth, causing her to bleed from an “inside cut”. [ 8 ] The final allegation made by the complainant relates to an incident a couple of months earlier, on December 30, 2010. She testified that on this day the family was to visit her father for a “late Christmas”. After “loading the kids in the van” she went inside the house and was told the defendant would not go along with the family “unless I sucked his dick”.

The complainant testified that as he said this he “pulled out his erect penis”. She said that after she “slapped it away” the defendant kicked and punched her and banged her head on the wall. Then he “suddenly stopped”. The complainant composed herself and joined him in the van for the drive to her father’s home. She testified that en route, the defendant laughed about the incident and said she “squealed like a bitch”. [ 9 ] The defendant was arrested late on May 9, 2011. Two days later, the complainant found a letter dated “10:17 PM Monday May 9 th 2011” in Ariana’s school bag.

It was from the defendant and addressed to the complainant and the Durham Regional Police. It includes the following statements: “I know you are a fantastic mom…..I really, really, really miss you guys right now and always. I love this life and I am never ever going to be angry or spiteful towards you. Ever Erin West. I apologize if I miss packed these bags. I am sure you can understand being surrounded after I awoke. I am peaceful and will back you on whatever choice you go with….”.

The complainant testified that before the sentence hearing for the defendant’s previous assault conviction against her in 2009, she wrote a letter to the Crown praising him as a father. She believes the letter found in Ariana’s back pack was an attempt by the defendant to persuade her to recant these allegations or otherwise help him. [ 10 ] The complainant conceded that her mother did not approve of her marriage to the defendant. She also admitted receiving a call from the defendant and talking to him while he was incarcerated awaiting trial for the 2008 assault on her.

She knew this violated a court order prohibiting contact between them but explained that his family had pressured her to help the defendant and she believed he had changed. This is why she wrote the letter to authorities praising him. The complainant was cross examined at length about the alleged assaults and threats. It was suggested that her failure to report anything prior to May 9 th is due to the fact that on that day she fabricated all allegations to prevent the defendant from obtaining custody of the children after he told her he was leaving.

She responded that by May 9 th she had had enough abuse and decided to report all that had happened. She said she had not done so before in the hope “things would get better”.

In this regard, she also expressed concern that her delay might cause the Children’s Aid Society to blame her for allowing her children to live in an abusive environment. [ 11 ] The complainant was confronted with a Facebook profile dated July 22, 2011 – more than two months after the defendant’s arrest – in which she declared the defendant to be her “significant other” and that her interests are “Being with my family, snuggling with my husband to a good movie, chocolate, enjoying life”. The complainant admitted posting this message before the difficulties leading up to the defendant’s arrest on May 9 th.

She denied doing so and claimed her Facebook account had been “taken over” and pointed out that her birthday is incorrectly noted on the profile in question. The complainant was also accused of having asked a friend, Christa Boncheff, to fabricate evidence that the defendant had abused Ariana in the past. [ 12 ] Connie Thirgood is the complainant’s mother. She testified that on May 9, 2011 at 2 PM, her daughter telephoned her in an agitated state. She immediately went to the complainant’s home and was told the defendant would not give the keys to the van.

She said she heard the defendant say, “I don’t have your fucking keys, are you that fucking stupid?” Ms Thirgood left but soon returned with her other daughter, Amber, because she realized “there’s something wrong here”. She saw the defendant mopping the floor. When he saw her he smiled and said, “back so soon”. The complainant, who was crying, showed her the back of her head and “it was covered in formula”. Ms Thirgood also saw that Ariana and Destiny were hugging each other on the couch and looked “terrified”.

When told that the police had not noticed formula on the complainant, Ms Thirgood stated, “I don’t know how they could miss the formula in her hair, - the powder had not been properly mixed and it was [clumped] in her hair”. [ 13 ] Cst. Prins responded to the report of domestic violence and at 6:21 PM on May 9 th went to the home of Ms. Thirgood. He observed the complainant to be “upset, shaking, and crying“. This house is close to that occupied by the defendant and his family. At 7:31 PM, Cst. Prins joined other officers outside the defendant’s home. He described this as a rural area.

He intended to arrest the defendant and knocked on the door. This went unanswered, although the officer “heard shuffling inside”. He telephoned the defendant at the home and also shouted for him at the window. There was no response. The premise was secured by police and one hour later the canine unit arrived. There were four marked police cruisers on scene with spot lights pointed at the residence. At 9:52 PM, Cst. Prins saw the defendant inside the house close a window and shut the blind. At 10:23 PM, the defendant walked out the front door and was

apprehended. Cst. Prins stated he had not been told about baby formula being poured on the complainant’s head, did not look for it, anddid not see it. [14] The defendant is 32 years old. At one time he was a gifted hockey player with great potential. Any hope of a career in sports cameto an end in 2001 when, during a hockey brawl, he was severely beaten and put on life support with a brain injury. Afterwards, between2004 and 2009, he was convicted of 13 offences, including assaults and failure to comply with court orders.

He now works in forestryand construction. [15] The defendant stated that his brain injury means he has difficulty in “processing information”. He is grateful that a religious grouphelped him through his ordeal with bible readings. His construction and landscaping company is called “Heavenz Soldier” and he refersto himself as “King George” when praying. [16] The defendant was taken through the allegations made against him by the complainant and rejected each of them. With respect tothe incident on December 30, 2010 he confirmed he did not want to visit the complainant’s father.

However, he said did not assault herover this; rather, she was angry with him and grabbed his genitals. He denied demanding oral sex and added that several weeks beforehe was “caught off guard” by the complainant’s “business proposition” to perform oral sex if he would massage her feet and painted hertoes. [17] The defendant testified that on May 9th he had decided to leave the marriage and had left a message with a friend, Dan Steward, toinquire about renting a room. He said the complainant learned of this when Mr. Steward called back and she answered the telephone.

He stated the complainant was upset by this news although, unbeknownst to her, he had decided not to leave after all, “because of thekids”. He denied squirting baby formula or splashing hot water on his wife and his son. He said that after his wife and children left thehouse he tidied up, had a shower, put on loud music and fell asleep on the couch. He explained that “this is what I always do” and did notknow the police were outside his home until much later. He acknowledged that at some point he got up and shut the window andblinds.

Still later, he packed bags for his children because it was after 10 PM and he did not know where they were. He then wentoutside and was arrested by the police. [18] When confronted with the fact that police waited outside his house for several hours before he came outside, the defendantexplained it as follows: At some point, he saw cruisers outside. He shut the window and blinds. He brushed his teeth, packed thechildren’s bags and went outside. Before doing so, he wrote a letter to the complainant and police.

He did this because he had “pickedup a voice mail from police” that they were outside and he wanted “get his side of the story out”. In this regard, he noted that “last time[the complainant] spoke to the police, I was arrested so I did what I had to do”. [19] The defendant denied the suggestion the letter was designed to manipulate events by making it look like his wife had calmly decided to leave without any violent behaviour on his part. He added that on July 22nd well after his arrest on these charges, thecomplainant posted messages to his facebook page, praising him.

In August, he filed for custody of his children. [20] Christa Boncheff is 31 years old. She and the complainant were once close friends, but had a falling out over issues unrelated tothis trial. She testified that in 2009 the complainant asked her to write a statement that she had witnessed the defendant hitting Arianaand had seen bruises on the child. She declined to do so as she had not witnessed these events. [21] Rosemarie Brown is the defendant’s mother. She has a dated record that includes a conviction for fraud.

She testified that onThursday, February 10, 2011 the complainant helped her make lasagne for a charity event to be held in Port Perry on Saturday February 12th. She stated that the complainant did not mention being assaulted and she did not witness any evidence of this on her mouth. MsBrown began making the pasta on Wednesday, February 9 but is certain that the complainant assisted her on the Thursday, not theWednesday or Friday. [22] Dan Steward has known the defendant for about a dozen years. In 2009, he was convicted of two counts of assault.

He confirmedthat in May 2011 the defendant telephoned him about renting a room. On the same day he spoke to the complainant and the latterexpressed concern that her husband would leave. Mr. Steward testified that the complainant told him she would “dress up” and enticeher husband to stay with a “blow job”. He described this conversation as unprecedented and surprising. Analysis [23] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This standard of proof is set out inthe often cited decision by the Supreme Court of Canada in R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397.

A helpfuldiscussion of the applicable principles is set out in R v DiPucchio 2009 ONCJ 39: 15 I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accepthis evidence 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 itdoes not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of thedefendant beyond a reasonable doubt. 16 While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the resultmay be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of thetwo essential witnesses appears more credible. As the Ontario Court of Appeal in R. v.

Hull, (ON CA), [2006] O.J.No. 3177, at para 5 noted recently: 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 of aCrown witnesses to that of defence witnesses. 17 I must assess the evidence of the complainant and the defendant 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 prohibit 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." 18 Proof beyond a reasonable doubt means what it says. There is, thus, nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven.

A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused, or the evidence of any other defence witnesses, or the absence of evidence, the charge must be dismissed: R. v. Lifchus . [ 24 ] The Defence claims the complainant has fabricated all allegations because she (erroneously) believed her husband was leaving her and wanted to “ensure it was on her terms”.

It is said that the complainant’s lies about the events of May 9 th are revealed by the fact that the officers did not notice redness on her skin from the boiling water or baby formula in her hair. Their observation that the complainant had wet hair is attributed to the squirting of baby bottle formula. It is submitted that Ms Thirgood should not be relied upon to confirm the complainant’s version of events because she is motivated to now support her daughter to compensate for guilty feelings at not having been a good mother in the past.

In this regard, it is pointed out that the complainant was raised by her grandmother and did not invite her mother to her wedding. It is also argued that Ms Thirgood is biased against the defendant and in answering questions did not miss an opportunity to “slander” him. Ms. Thirgood did not provide a statement to police until one year these events, when the Crown directed an officer to interview her. Defence counsel suggested that the fact this witness did not tell the police about her observations when they came to her home on May 9 th to interview the complainant shows she is lying.

The Defence relies on other evidence to support the attack on the complainant’s credibility, namely, that the complainant asked Christa Boncheff to give false evidence and Ms Brown did not notice injuries on the complainant on February 10 th . [ 25 ] The Crown points out that the complainant called police because of the incident on May 9 th and revealed the other assaults and threats because of further questioning by the police.

Counsel submits that the details provided by the complainant with respect to May 9 th are significant: She said the mutual squirting of baby formula water happened because she thought her husband was now in a “playful mood” and she “walked on egg shells around him”. She added that “he could be angry and suddenly go into a calm phase”. After she squirted back at him, he had that “look in his eyes” and three times shook hot water at her. It is suggested these details are not the product of fabrication. The Crown also emphasizes that only Cst.

McQuet was aware of the claim that formula had been poured over the complainants head but he did not closely examine her hair or check for redness. On the other hand, the police evidence clearly shows that the complainant’s hair was wet. Counsel also argues that in considering the complainant’s failure to report the prior incidents in a timely manner, it is important to keep in mind that they arose in the course of an intimate relationship with children.

The Crown submits that the defendant’s actions betray a manipulative and controlling man as is evident by his delay in surrendering to the police –that is, on his terms – while he packed bags for the children and wrote the letter to the complainant and police. That letter, it is said, shows a man reaching out to the complainant for help and is an acknowledgement he is in trouble. [ 26 ] There can be no doubt that by May 9, 2011 this marriage was in difficulty. The testimony of both spouses confirms this and points to previous months of acrimony.

The complainant’s version of events is that what happened that day compelled her to go to the police and reveal all the abuse she had suffered. The defendant claims that his wife fabricated everything that day, believing him to be quitting the marriage and wanting to control the fallout, including custody and access to the children. [ 27 ] I disbelieve the defendant and reject his testimony about all the charges. In coming to this conclusion I take into account the impact of his criminal record on credibility.

What is most significant, however, is the defendant’s delay in surrendering to police and the letter he left behind. I find that he was aware of the presence of police long before he came outside. I do not believe that loud music prevented him for hearing the knock on the door or the ringing of the telephone. He was heard moving about inside soon after police arrived. I have no doubt he knew they were outside and saw the spot lights shining on his home. This finding contradicts his testimony at trial and undermines his credibility. It also reveals a calculating and controlling man.

He surrendered on his terms several hours after the police came to arrest him. This attitude is also reflected in the letter he left behind. It is addressed to the complainant and begins as follows: “I really want you and the DRP [Durham Regional Police] to know this…..” For these reasons, I am confident the Facebook profile dated July 22, 2011 was posted by the defendant and that the complainant is correct in asserting her account had been compromised.

That action is further evidence of his manipulative nature. [ 28 ] I am not impressed by the defendant’s comments about the complainant with respect to the incident on December 30, 2010. He denied demanding oral sex and added that several weeks before he was “caught off guard” by the complainant’s “business proposition” to perform oral sex if he would massage her feet and paint her toes. It may be that the complainant proposed this bargain - and the testimony of Mr. Steward suggests she could have – but it has nothing to do with this trial.

The defendant raised this irrelevant matter because he believed it would adversely affect the complainant’s credibility. As such, it reflects badly on him. [ 29 ] I also reject the testimony of Ms Brown. She insists that she began making the pasta on Wednesday, February 9 for an event on Saturday February 12, but is certain that the complainant assisted her on the Thursday, not the Wednesday or Friday. There is no reason why the defendant’s mother should remember the exact day so long after the fact.

On the other hand, the complainant’s linkage of the date to the birth of her nephew makes sense. [ 30 ] The Crown suggested that Christa Boncheff’s trial testimony is a vindictive response to the fact that the complainant ended their close relationship. I do not accept this. Ms Boncheff impressed me as a truthful person. She testified that the complainant asked her to give evidence that the defendant had assaulted her daughter. This has nothing to do with the present charges but it is obviously a serious matter if the complainant ever solicited false testimony.

This is what the defence asserts but it is not what I find as fact. That Ms Boncheff could not agree to the complainant’s request to provide evidence of an assault does not mean the latter invited perjury. I am not troubled by Ms Boncheff’s testimony.

[ 31 ] Mr. Steward confirmed the defendant’s evidence that he had called about renting a room. He also testified the complainant was aware he was thinking of leaving and suggested she might entice him to stay through sex. I find Mr. Steward to be a credible and reliable witness. However, his evidence has no necessary implications for what the complainant said subsequently happened. [ 32 ] The testimony of Ms Brown, Ms Boncheff, and Mr. Steward do not enhance my faith in the evidence of the defendant.

As will be explained, neither does it cause me to doubt that of the complainant. [ 33 ] The Defence is not required to show motive but the one asserted in this case is incredible. Cases of domestic abuse often involve the intersection of criminal and family proceedings. In such cases, a judge must consider if evidence in one matter is tailored to affect the outcome in another. In such circumstances, delay in reporting abuse can be a sign of fabrication. On the other hand, it can be a reflection of the intimate relationship and/or concern over children and finances.

In this case, there is simply no air of reality to the motive asserted. In this regard, the defendant’s criminal record is relevant to the complainant’s state of mind. Most of the 13 convictions are for assault. Whether the complainant was aware of the extent of the record is not clear, but she certainly knew about the 2009 conviction for assault upon her. She is without a criminal record and the mother of three children under the age of five. In all the circumstances, why would the complainant be unduly concerned about losing custody of the children?

If so, why invent a story about squirting baby bottles, hurling boiling water, and formula poured on her head? Moreover, why disclose past events given her fear that the authorities would consider this delay in reporting to be evidence of a poor mother? Motive to lie has not been established in this case. [ 34 ] As noted by May 9 th the parties were in trouble. I believe the complainant’s version of events. She provided a clear, unembellished account.

Small details are marks of truth and accuracy; her effort to appease him by exchanging squirts from the bottle, the demonstrated way in which the defendant shook the hot water cup three times to splash her and Roman, and her description of how he whistled and cleaned up when her mother returned. Contrary to the Defence submission I found the complainant readily answered questions without argument or evasiveness. Moreover, her testimony is materially confirmed by others. [ 35 ] The police observed the complainant to be crying, upset and shaking. This is consistent with being the victim of an assault.

The complainant’s testimony about her husband’s mood swings and feelings of walking on egg shells are also confirmed by that of his mother who testified she once told her daughter in law that ‘we need to make him happy – not grumpy’. [ 36 ] The complainant’s version of events about May 9 th is corroborated by the evidence of her mother. Ms Thirgood testified that the defendant was angry before the assault and that she saw evidence of it afterwards. She also pointed to his flippant and manipulative demeanour in observing that he smiled and said “back so soon” while mopping the floor after the events in question.

I believe her testimony. I reject the suggestion of collusion between mother and daughter. [ 37 ] The fact that the police did not see formula in the complainant’s hair or redness on her skin does not trouble me. One officer was not looking for these signs and the other did not conduct a careful examination. What is clear is that the police observed wet hair. This corroborates the evidence of the mother and complainant. The Defence assertion that this was due to squirts from a baby bottle is at odds with the defendant’s testimony; he denied squirting his wife.

In any event, I reject the suggestion that a squirt or two from a baby bottle would cause such wet hair that it would later be noticed by Ms Thirgood and the police. [ 38 ] I accept the complainant’s account of what happened on May 9 th . I find her to be a truthful and accurate witness. I reject the defendant’s testimony. For these reasons, with the exceptions to be noted, I find the Crown has proven the prior allegations of assault and threatening. The complainant’s delay in disclosing this abuse is adequately explained by her hope things would get better. May 9 th was last straw.

Such is the case with many families in crisis. [ 39 ] The Crown invites me to dismiss the charge relating to the assault in April 2011 when the complainant awoke to find the defendant choking and slapping her. He does so on the basis that there is a reasonable doubt the defendant was awake and knew what he was doing. I would also dismiss the charge of threatening by shooting the complainant in the face because the context within which this was said is not in evidence. It is simply too vague. I find the Crown has proven the other six charges. [ 40 ] The defendant is found guilty accordingly.

Released: June 11, 2013 Signed: “Justice J. De Filippis”