Eric's Case — Assault (Domestic) — Dismissed

Between
Her Majesty the Queen, and Eric T.

[1999] O.J. No. 5554
Information No. 99-01323

Ontario Court of Justice
Oshawa, Ontario
Stone J.

Oral judgment:   June 1, 1999.
(28 paras.)

¶ 2      There were a number of arguments raised here; I can deal with a couple of them very summarily.  The one issue raised was whether the alleged assault on Ms. D., if it occurred, amounted to so minimal a matter that it would engage the old legal maxim of de minimis non curat lex, that is, that it would be so trifling that it wouldn't amount to an offence. I would say that the intentional wiping of blood by someone onto someone else's face is either an act of gross demeaning or a very serious matter, and, in any event, would not qualify for the de minimis argument.  An argument that was very briefly left with the Court with respect to the alleged assault on Lori W. was that perhaps by standing in front of the door, she was granting an implied consent to be touched. I reject that defense out of hand.

¶ 3      As I perceived this case in its earliest times, it seemed to me to be one which would probably focus on an issue of excessive force or not.  I take it as properly pleaded that once, if the evidence so disclosed, Lori W. put herself in front of Mr. T.'s car and did so with the intention that he wouldn't have ready access to it, and if Mr. T. asked her to get out of the way politely or otherwise, and if she then still refused to let him have access to his car, there would be a right in Mr. T. to move Lori W. aside provided he did not use excessive force.  It seemed to me that much of the focus of the inquiry in this case could turn on the issue of excessive force.

¶ 4      With respect to the alleged assault on Tanya D., it seemed to me fairly early on that the real issue would turn on one of accident or intentional contact.

¶ 5      It is necessary to speak briefly of credibility. It seemed to me that in terms of people who clearly had no interest in the case whatsoever and felt no obligation to editorialize to assist their own situation or to explain their own levels of high anxiety, Ms. Gruen enjoyed a very high level.

¶ 6      One of the difficulties in dealing with the evidence of Ms. Gruen is that it would be patently unsafe to convict on that evidence if it was contradicted, in effect, by the alleged victims.

¶ 7      The evidence of Ms. Gruen is the most striking and the easiest to deal with if it has legal force, that is if it would be safe to convict.  Her evidence was that she saw Mr. T. or the person she takes to have been Mr. T., (because her identification evidence was not at all strong) in effect, throw Ms. W. twice against the car.  That kind of contact and conduct would be excessive on any approach; that's not moving a person aside, that's, basically, thumping the person and that would be an assault.  However, Ms. W. explicitly or implicitly denied that, that level of contact occurred between her and Mr. T.

¶ 8      Similarly, the evidence given by Ms. Gruen was that Mr. T. slapped Ms. D. across the face; Ms. D., herself, contradicts that.  Again, while I can certainly accept some, all, or none of any witness's evidence, to simply ignore the evidence of Ms. D. on this point would be highly dangerous.

¶ 9      With respect to the evidence of Ms. W., her evidence almost opened with apologies to the accused, Mr. T.  It's one thing to be fair in the giving of evidence, that is, to admit that one has, for example, used profanity in argument when that's the case, and to be fair about that sort of thing; it's another thing to seem to go overboard to be an apologist for the actions of somebody else. I felt that was where Lori W.'s evidence started.

¶ 10      It was possible to conclude that there were some things that went on that occurred, really, very much as she said, and I'm very much inclined to her view that she was seized with one hand instead of Mr. T.'s version of two hands, before Ms. W. was cast to one side of Mr. T.'s car.

¶ 11      With respect to the evidence of Ms. D., her evidence was relatively short and to the point.  She had no axe to grind with anybody, it appeared.  It was her view that Mr. T. had simply wiped his hand across her face.  With respect to that evidence, I found Ms. D.'s evidence credible and capable of having legal effect.  She did, however, contradict Ms. Gruen on the idea of being slapped.

¶ 12      The maximum assault that Mr. T. faces with respect to Ms. D. is, in effect, a wiping motion, a situation, as I say, which I found to be very credibly delivered by Ms. D.  With respect to the evidence of Mr. T. though, his evidence in connection with the possibility of an accidental touching was one which, in this case, I could not completely discard.

¶ 13      In the Crown discharging its burden in this criminal case, it's not just a matter of my saying I like the evidence of Ms. D., and the evidence of Mr. T. maybe wasn't as precise with respect to the contact between those two people.

¶ 14      It's a matter of the Crown having to establish that Ms. D. was clearly correct and that Mr. T. was either lying or clearly mistaken in his evidence that he did not intentionally make contact with the face of Ms. D. In some cases it's possible to hear the evidence of the accused party and completely disregard it; in other cases, of course, the complainant's evidence could be completely disregarded as fabrication.  In this case, I cannot disregard either body of evidence, and, as a result, Mr. T.'s denial of the intentional contact with Ms. D. is still, shall we say, on the table; it still has legal force and effect.  While I might prefer Ms. D.'s evidence to Mr. T.'s by a slim margin, Mr. T. is entitled to an acquittal on count two.

¶ 15      On count one, I heard argument about two possible phases of the alleged assault on Ms. W.  Frankly, I felt that the evidence of Ms. W. disclosed only one phase and that was the first one, the seizing of the arm and the moving out of the way.  Otherwise, there was scuffling with a certain mutuality which, in my view, could not amount to an offence.  The first part, as I return now to the question of excessive force, is that part of which the Crown's case has to stand or fall.

¶ 16      As I say, I prefer the evidence of Ms. W. to suggest that she was seized with one hand and pushed out of the way, than Mr. T.'s evidence that he seized her with two hands and pushed her out of the way.

¶ 17      It appears to be common ground that he did not throw her away; he did not, for example, knock her to the pavement; he moved her out of the way.  I was not given anything in evidence that would allow me to measure the degree of force that Mr. T. used.

¶ 18      It is a legal principle that where one is involved in legally using force with respect to someone else, one is not required to measure that force to a nicety, although one can't go overboard and use what would be considered excessive force.

¶ 19      This is a case which, with the evidence of the bruising and the description of proceedings by Ms. W., is perilously close to excessive force.  I don't think it's there.  I think Mr. T. had a right to move Ms. W. aside and in doing so, he might have been a little rough, but he did not use excessive force beyond any reasonable doubt.

¶ 20      I don't want to be taken as saying that I applaud Mr. T. in his efforts to get out of the situation without coming to some accommodation with respect to his children.  I don't want to say that I don't understand why Ms. W. stomped across the street and put herself in front of the car.  I certainly don't want to applaud any of the yelling and carrying on and shoving around that occurred on Cinnamon Street in downtown Oshawa.  But is there a matter which I can find is a criminal offence beyond a reasonable doubt?

¶ 21     No, it's not quite there.

¶ 22      So, Mr. T., you're going to be acquitted on both counts.

¶ 23      MR. PENNEY:    Thank you, Your Honour.

¶ 24      THE COURT:    And with an urging to try to come to other accommodations if you get into disagreements.  Thank you very much.

¶ 25      THE ACCUSED:    Thank you, sir.

¶ 26      THE COURT:    Thank you.

¶ 27      MR. PENNEY:    Thank you for your patience, Your Honour.

¶ 28      THE COURT:    Thank you, Mr. Penney, for your assistance.