R. v. R., 2010 CarswellOnt 9250, 2010 ONSC 6700

R. v. R.R.

Ontario Superior Court of Justice

Edward Belobaba J.

Heard: November 30, 2010; December 1-3, 2010
Judgment: December 6, 2010
Docket: 09-50000783

Counsel: C. Blondell for Crown
G.T. Clark for Accused

Edward Belobaba J.:

1        R.R. is charged with assault causing bodily harm, threatening death and assault with a weapon (using a piece of wood). The charges relate to two incidents that allegedly occurred in June of 2005 when Mr. R was dating the complainant Amanda Campbell.

2        They began seeing each other in March, 2005. Campbell lived alone in a one-bedroom apartment. R would sometimes stay over.

3        Ms. Campbell’s evidence is that sometime in the first two weeks of June, 2005, in her apartment Mr. R lost his temper, threatened to kill her and then beat her with a closed fist and bit her on the nose. Several days later on June 17, 2005 he became angry again and struck her with a piece of wood. Both assaults, says Campbell, left marks and bruises on her body.

4        The relationship lasted about five months and ended at the end of July, 2005. Ms. Campbell did not report these events to the police until December, 2005 because, as she puts it, she did not want to be a snitch.

5        At the judge-alone trial, only two witnesses gave evidence: Ms. Campbell and her close friend Nickeisha Jeffrey (“Nicki”) who lived in the same apartment building. No evidence was offered by the defence and the accused did not testify.

6        In my view, the complainant may well have been threatened and assaulted just as she described. However, on the evidence presented and given the discrepancies in this evidence, I cannot find guilt beyond a reasonable doubt. For the reasons set out below, Mr. R is acquitted on each of counts one, two and three.

7        Count one: assault causing bodily harm. Campbell’s evidence is that she came home from work, saw her then boyfriend talking on his cell phone to another woman, became upset, told him to get off the phone and then grabbed the cell phone and smashed it. R became enraged, started fighting with her, chased her into the bedroom saying “I’m going to kill this girl” and proceeded to pound her with a closed fist hitting the back of her head and body while she lay on the bed.

8        When she turned over, says Campbell, R bit her on the nose leaving a mark on her face that was visible for several days. He finally stopped, started to cry and began to apologize. The bruises on her body took days to heal.

9        Campbell testified that she saw her close friend and step-sister, Nicki, “almost all the time” and at least every second day. If so, Nicki would have noticed if not the bruises on the body then at least the obvious marks on the nose. But in her very short appearance on the witness stand, Nicki testified that she never saw any such marks or bruises. Nor did she offer any evidence about Campbell ever being upset about her boyfriend or ever showing her any marks or bruises that may have been caused by domestic violence. Again, as I have already noted, Ms. Campbell may well have been beaten just as she described but I cannot make this finding beyond a reasonable doubt.

10        Count two: threatening death. Ms. Campbell says that Mr. R said “I’m going to kill this girl” as he chased her into the bedroom and proceeded to beat her. The difficulty here is twofold: (1) when Campbell contacted the police several months later, she told them that R was threatening her. However, as she then explained at trial, several women were calling her after her relationship with R had ended. None of the callers threatened Campbell but she “felt” that she was being threatened “indirectly” by R. She stated unequivocally that Mr. R never threatened her and “never said I’m going to kill you.”

11        Whether this explanation was only intended to apply to the post-breakup phone calls from the women or also included the cell-phone incident and alleged assault in her apartment in June was not clarified by the complainant or by the Crown in re-direct. That being so, I have a reasonable doubt and cannot convict on count two.

12        Count three: assault with a weapon. Ms. Campbell’s evidence about the second alleged assault is disjointed and difficult to follow. However, as I understand her testimony, she and R often had arguments about money – namely about R wanting money from Campbell. On June 17, 2005 Campbell tells R that she can’t give him any more money and certainly not the $500 he is demanding. They begin to argue. Campbell decides to leave the apartment holding her bank card in her hand. R follows her outside to the hallway, tackles her and starts biting her hand to force her to release the bank card.

13        They eventually return to the apartment. Things quiet down. Ms. Campbell changes out of her clothes. A second fight begins again about the money. R grabs a piece of wood (a broken piece that had once been used as a mirror brace on the dresser) and begins to strike her causing bruises on her thighs and a “chop” mark that breaks the skin on her forearm.

14        Campbell tells him to stop or she’ll call the police. “Go ahead and call the police” replies R, and he pushes her out of the apartment. Campbell is wearing only her underwear. She eventually makes her way up to Nicki’s apartment and calls 911.

15        Defence counsel submits that Ms. Campbell’s testimony at trial about what happened on June 17 is different from what she said to the police in her video-taped statement and different again from what she said at the preliminary hearing. I acknowledge these narrative discrepancies but I am more concerned about the following more fundamental points, also emphasized by defence counsel:

  • According to Nicki, when Campbell came up to her apartment, she only asked for some pants and Nicki obliged. Nicki testified that she saw no marks or bruises. When asked about Campbell’s demeanour, Nicki described it as “frustrated.” Nothing about Campbell being angry or upset. Nicki also testified that she could not remember what was said. I may be wrong, but I would think that Campbell would have told her close friend if she had been assaulted with a piece of wood and if this was said, that Nicki would have remembered.
  • When Campbell called 911, she told the 911 operator that “my boyfriend locked me out of my apartment and won’t let me in.” Nothing about being beaten with a piece of wood. Nothing about being pushed out of her home.
  • When the 911 operator asked Campbell if her boyfriend was violent, Campbell answered “no … he just locked me out.”
  • In a follow-up call to 911 to cancel the police request, Campbell told the 911 operator that “it was not a domestic situation.”

16        I can accept Ms. Campbell’s explanation that she lied to the 911 operator about what really happened because she still had feelings for Rand did not want to get him into trouble. This may well have been the case. I must also express my concern that Nicki may not have been completely forthright in her testimony. Nonetheless, given the evidence adduced at trial, as set out above, I cannot make a finding of guilt beyond a reasonable doubt on count three.

17        Mr. R is therefore acquitted on counts one, two and three.