Joseph's Case — Assault & Threat — Dismissed

Between
Her Majesty the Queen, and Joseph K.

[2003] O.J. No. 4729

Ontario Court of Justice
Toronto, Ontario
Taylor J.

Charge Dismissed:  27 November 2003
(17 paras.)

¶ 1     TAYLOR J. (orally):  — On November 17, 2002, the A**** family gathered for a wedding. Weddings are supposed to be times of great joy, a union, often a union of families, often sanctified by religious observations. The wedding on this day was anything but. It was characterized by nastiness, insults, childish behaviour, and an atmosphere that could best be described as poisonous.

¶ 2     At the end of the day, the best man, Mr. Carl T., had charged the common-law partner of one of the A**** family members with the offences of assault and threatening to cause death or serious bodily harm.

BACKGROUND:  

¶ 3     Carl T. was the best man at an A**** family wedding. He alleges he was assaulted by Joseph K., who threatened him with death. He says the assault consisted of being grabbed around the throat. His version of events is confirmed in some respects by Mrs. A., the mother of the groom, and the mother-in-law of the accused.

¶ 4     The sister of the groom, Pam K., denies that her husband, at any time, assaulted or threatened the complainant.

¶ 5     Her version of events is that following an altercation involving others, her husband approached the accused and said to him:  

"Why are you such a trouble-maker."

She said that, at that point, the complainant made an insulting remark, and that her husband then touched the complainant on the shoulder, and asked for an apology. She says that her mother then joined the fray, and began assaulting her husband.

¶ 6     Joseph K. gave evidence indicating that as a result of what he perceived to be misconduct on the part of Carl T., he approached him casually, made the remark,

"Why are you such a trouble-maker,"

was told to go back to his cave you Taliban, and at that point touched the accused casually on the shoulder requesting an apology.

APPLICABLE LEGAL PRINCIPLES:  

¶ 7     I may believe all, none, or some of a witness's evidence. (D.R. et al and The Queen, 107 C.C.C. (3rd) 289, per Madam Justice L'Heureux-Dubé, dissenting in the result at page 318)

"A determination of guilt or innocence must not devolve into a mere credibility contest between two witnesses, or groups of witnesses. Such an approach erodes the operation of the presumption of innocence, and the assigned standard of persuasion of proof beyond a reasonable doubt."

(See D.W. and The Queen, 63 C.C.C. (3d) 397, at page 409.)

¶ 8     In this case, the complainant, Mr. T., under cross-examination, made a rather bold statement. He said,

"I don't drink alcohol. I had none at all."

Mr. Penney then suggested to him that he had in fact consumed alcohol. The first response was,

"Well, to my recollection I didn't drink."

The point was pressed, and he said,

"Well, well I might have had a few drinks,"

and then said,

"Okay, so I'll say I had a few drinks."

¶ 9     Our legal system is dependent on witnesses telling the truth, the whole truth, and nothing but the truth. If they are not doing that, then my role is reduced to being a judge of story-telling contests.

¶ 10     I find that I can not accept Mr. T's evidence given his lack of candour with the court. Similarly, I find that I cannot accept the evidence of Ms. A., the mother-in-law. She was clearly a partisan, and her obvious contempt for not only her daughter, but her son-in-law, has to be taken into account in assessing the value of her evidence.

¶ 11     Turning to the evidence of the accused and his wife, there is no burden on the accused to prove anything. I am prepared to accept the accused's evidence, and that of his wife. However, at least in the case of Pam K., her evidence betrayed the over-arching bitterness that existed on that day. She, for her part, when cross-examined by Mr. Paisley as to her husband's remark,

"Why are you such a trouble-maker,"

to T., indicated that that was not an accusatory statement or confrontational. That is ludicrous. It could not be seen as anything other than accusatory or confrontational.

¶ 12     The last issue I have to deal with is whether the touching by Mr. K. could amount to assault. In my view, the touching, although intentional, was without animus. It was a touching that would occur as touchings occasionally occur in normal sort of social intercourse. People touch people in elevators to excuse themselves.

¶ 13     Under the circumstances, I find that the Crown has not proved the case beyond a reasonable doubt. It goes without saying that the purpose of the criminal law is not to try and make people good people, make them nice, make them good citizens. It's to try and enforce minimally socially acceptable standards of behaviour. Don't steal, don't kill. Civil behaviour is left to people's own devices.

¶ 14     What was most distressing in hearing this case was the atmosphere, as described by Mr. Paisley for the Crown, and the testimony of the witnesses, and none of them betrayed any sense of embarrassment whatsoever about what happened that day at what was supposed to be a joyous occasion.

¶ 15     The case is dismissed. I don't propose to take the matter any further with respect to the issue of the peace bond, common-law or otherwise.

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

¶ 17     MR. PAISLEY:  Thank you.

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