Austin's Case — Assault (domestic) — Dismissed

Between
Her Majesty the Queen, and
Austin M.

[2001] O.J. No. 6066

Ontario Court of Justice
Toronto, Ontario
Bellefontaine J.

Oral Judgment:  20 November 2001
(5 paras.)

¶ 2      Because issues of credibility are paramount, Mr. Austin M., I have applied the provisions of R. v. W.(D.), [1991] 1 S.C.R. 742. It's a Supreme Court of Canada case which basically sets out the approach that we're to be taking to analyzing matters of credibility when we're trying to determine where the truth of a matter or where the reasonable doubt in a matter lies in any particular case. Firstly, if I accepted your evidence, you'd be entitled to an acquittal on the basis of your evidence here today which would negate the essential elements of the offence from the Crown's perspective. Even if I didn't accept your evidence because I felt there was some problems with it, I would still have to go on to consider whether or not it raised a reasonable doubt, and I think you can appreciate there's some evidence that you really don't think is correct but at the same time you're not so sure that there might not be some element of truth to it that you're prepared to reject it out of hand. Even if I did reject your evidence, as Mr. Penney points out, I have to go on to analyze the evidence adduced by the Crown to ensure that it satisfies me beyond a reasonable doubt of all the essential elements of the offence before the court. These are really essential applications of our basic principles that everyone is presumed innocent until their guilt is proven beyond a reasonable doubt, that the burden of proving that reasonable doubt rests on the Crown. As well, it's a very high standard of proof that is borne by the Crown to be establishing all of these elements to a very high level.

¶ 3      I have considered, as I say, all of the evidence in this matter. It's very difficult to accept your version of what happened when it doesn't explain any of the injuries that were seen on Ms. Vasquez. I appreciate her very upset demeanour that day can be a very variable one. Some people can get quite upset and hysterical about something a lot less than other people might be upset about, but she seems to have been quite legitimately upset about something. It leads one to believe that there has to have been some significant incident that occurred between the two of you to justify her calling 9-1-1, although it's very perplexing that she didn't follow through with the 9-1-1 call if you were outside at that particular point in time and it leaves one to question in some ways why she bothered hanging up at all if she viewed the situation to have been as serious as she's indicating in that particular call. Certainly, there is no meaningful explanation as to why she hung up, particularly if you were outside of the home having a cigarette at that point in time.

¶ 4      Following from that, there are a lot of inconsistencies between her first statement, her second statement, and her evidence here today. Her evidence here today as well was very difficult to follow to assess the narrative. She was quite changeable on some points as I followed it here today and it really leaves a bit of a perplexing sort of narrative. I think there were issues that she was careless with the truth on. Mr. Penney's noted the one about not residing at the home at the time, or since 1999, and her ready acceptance of her having been living there today. Some of the inconsistencies are relatively minor. I don't know that it really affects things a lot whether the mother-in-law was closely present after the assault or close by in the living room or moving off towards the computer room. I don't really attach a lot to that and I'm mindful of Mr. Newell's points that some of the points that aren't addressed in the second statement may very well have been intended by her to supplement the earlier statement. As well, in fairness to her, I think there could very easily be language issues between herself and the police officers involved who were trying to take down what she is saying. So I don't want to be seen to be overly critical of some of the inconsistencies that are made out here. But there is a significant difference between a punch and a slap. I'm surprised to see that type of discrepancy. The fact that she changed her second statement because of the terminology "kicked," and made no mention of the kick in the second statement, and why she was changing the statement, the fact that she has this middle ground here today that she felt some pain but doesn't know whether it was as a result of being kicked or not, really creates a lot of confusion with respect to that. With respect to not being hit before, there is no mention of it in her second statement and then she mentions the hair being pulled out in October of 1999 as the cause of the separation, I would have thought that that would have been a meaningful thing for her to have remembered. And, of course, she testified here today that she had not been hit before at one point in time before she reversed herself again to say that her hair had been pulled on the earlier occasion, causing the separation. I would have thought that incident would have been a fairly memorable one that we would have had some consistent evidence on throughout. That doesn't seem to be the case. She indicated in her initial statement that she had scratched you, causing the injuries to yourself. The second occasion she indicated that she had scratched you but didn't know if it has caused the injuries. "I pushed him and, if I scratched him, I did not see," was the indication on the second statement and, again, when I was reading that in the respective statements I thought it was somewhat difficult to reconcile those two separate concepts. There's no reference in either of her two earlier statements to any shaking, being grabbed by both hands and being shaken by you, but she'd indicated that that occurred in her direct examination here today. As well, something that wasn't in either statement was her being pushed into the wall and hitting the back of her head on the wall, which she raised here today in response to the question by Mr. Newell as to how she had received the bump or injury to her head. Again, that's somewhat concerning, particularly if she was in some pain or certainly enough pain that she would have drawn the injury to the officer's attention when giving her statement. I would have thought that it would have attracted some attention in one of the two statements that she had given to the police.

¶ 5      In my view, although her version of the events is the more likely version of the two, that is that a slap of some sort occurred of some significance at some point in time, I just don't feel she's a reliable enough historian on which to safely register a conviction in this matter. Accordingly, there will be an acquittal registered.

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