Evan's Case — Assault and Death Threat — Dismissed

Between
Her Majesty the Queen, and
Evan P.

[2004] O.J. No. 6097

Ontario Court of Justice
Barrie, Ontario
C.E. Purvis J.

Oral judgment:  21 April 2004
(14 paras.)

¶ 1      C.E. PURVIS J. (orally):— Certainly the case was well fought out, if I can put it that way, back and forth, and I do not think you left too many stones unturned.

¶ 2      In this matter the issue before me, the single issue, is — Was there an assault committed upon Vanessa P. by her husband, the accused? The Crown, of course, must prove, and without any question, the accused's guilt beyond a reasonable doubt that, in fact, the assault took place and it was the accused that used the excessive force in committing the assault.

¶ 3      The accused denies any contact with his wife.

¶ 4      It was by implication, I suppose, the defence theory that the wife objected to his taking the guns rather than his actual appearance at the house because on the evidence he had been at the house several times before picking up his mail and picking up tools and things like that. In any event, Vanessa P. testified that on the 9th of June her husband entered by the basement door and was endeavouring to climb the basement stairs to gain entry to the main floor. She told him to leave, on her evidence, and return for his guns when she was absent.

¶ 5      He testified that, "I have come for my guns, I need them." There is not doubt really the guns were lawfully his, as was the house. Vanessa P. testified she stood at the top of the stairs on the first step going down to the basement with the door to the basement to her back. She testified in order to overcome her physical blockage of the doorway, which she was endeavouring to do, her husband pushed her aside and she fell back against the basement door, opening it fully I take it, and apparently falling backwards on her buttocks. The accused, she said, then passed by her and proceeded to retrieve his guns.

¶ 6      In listening to their evidence and observing each — the accused and his wife — I was less impressed with Vanessa's evidence. She had a reasonably good command of the English language, as did her husband, yet, I found she was stumbling and hesitant with respect to her answers, almost as though she was groping for the right answer. I found her somewhat evasive in her answers to counsel's questions. I still cannot grasp the reason as to why she did not want him to take his guns at the time that he showed up. She clearly admitted that she had no fear that he would harm her or shoot her or physically beat her but she did say that her fear was based upon his verbal abuse, his abusive conduct, she said, towards her, and it may well have been.

¶ 7      I find the accused's story really appeared more plausible. He began, after finding out that she had peddled three things, his hardwood, his hot tub and something else.

¶ 8      MR. PENNEY: The vacuum, Your Honour.

¶ 9      THE COURT: The vacuum, the uninstalled central vac. It appears that it finally dawned on him that it appeared she was planning to also peddle his guns.

¶ 10    Even if I were to believe the victim, Vanessa, I would have to say that the accused had every right, in my view, to, in his own house, retrieve his guns whether she was there or whether she was not. He had the right to retrieve them and she had no right to dictate, really, when he was to attend or when not to attend. She had no right whatsoever to refuse him entry or block his passage.

¶ 11    Even if I were to accept her evidence over that of the accused, I cannot find that the force he used to overcome her improper blockage of his entry was excessive under the circumstances. He did not punch her. He could have slapped her face or taken and shoved her back to injure her, but it was a shove really, and I was left with the clear impression it was a shove back out of the way to get by her. Had she been on solid ground in all probability she would not have stumbled back and fallen on her buttocks, but she was on the first step and as she was pushed back, of course, her heels would be against the vertical rise of the first step and down she went.

¶ 12    However, in all of the evidence, I prefer the evidence of the accused that at no time did he push her away and down. The only contact was as he was trying to get into his motor vehicle.

¶ 13    I was left with the impression that her conduct, with regard to the wrongful disposition of the husband's property, really was less than circumspect.

¶ 14    So the charges are dismissed, both for your efforts there, it was sound. Thank you.

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