R. v. Fagg

2015 BCSC 1315 R. v. Fagg IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fagg, 2015 BCSC 1315 Date: 20150724 Docket: 22977 Registry: Smithers Between: Regina v. Robert Fagg Restriction on publication: Pursuant to Section 486.5 of the Criminal Code of Canada Before: The Honourable Mr. Justice Funt Oral Reasons for Judgment Counsel for the Crown: P. Fullerton Counsel for the Accused: T. Zipp Place and Date of Trial: Smithers, B.C. May 26, 2015 Place and Date of Judgment: Smithers, B.C. July 24, 2015 I. introduction [1] Under three separate counts, the accused is charged with assaulting, unlawfully confining, and threatening the complainant with death or bodily harm. [2] The accused and the complainant had a three month intimate relationship which started in December 2012. The complainant testified that the accused's actions that led to the criminal charges occurred during the early evening of the Friday after Christmas in 2012 (counsel agreed that that Friday was December 28). [3] The only evidence at trial was the testimony of the complainant. II. background [4] The complainant is 28 years of age. In December 2012, the complainant lived in a small two-bedroom ground floor apartment in Smithers, B.C. with her four-year-old daughter. [5] The complainant and the accused first met through an online dating website. They had initially exchanged emails and texts. Near the beginning of December 2012, they met in person, became intimate at that time, and started their three month relationship. [6] The accused is a truck driver. The complainant described the pattern of their relationship as follows: Q In that three months there you were in a relationship, how often did you see him? A I saw him for maybe a couple of days at a time, once a week or so. It was basically whenever he drove through town for work. Q What kind of work did he do, to your knowledge? A He was a truck driver for a company called Ryler. Q And -- okay. So, you would see him for a couple of -- couple of days at a time, once a week? A Yeah, about there. Q So you would get together four -- four times in a month, five times in a month, somewhere in there? A Yeah, I think the longest span was maybe two weeks that we didn't see each other. He would -- he would come over for the day, and then he would leave the next day to do his drop, wherever he was going, and then he would come back when he was coming back through. He would stop in again, and then maybe for a night or two, and then he'd leave back home for a week or so until he could get another run up this way. [7] On the Friday evening of the alleged actions giving rise to the three counts, the accused and the complainant had been engaged in a playful water fight. The complainant's daughter was asleep in her bedroom. Neither the accused nor the complainant had been drinking or under the influence of drugs. [8] The complainant testified that the mood quickly changed from a playful water fight to the accused calling the complainant "stupid" for being in a previous relationship with "a guy who kicked [them] out." The complainant replied "I guess I must be." [9] The complainant stated that the accused then grabbed the complainant and looped his fingers around the necklace she was wearing and twisted it. He guided the complainant to her bedroom. The necklace started to dig into the complainant's neck. The complainant pulled on the necklace and broke it. It left a red mark on her neck, which was gone by Monday. [10] The complainant testified that the accused next put her against the wall and stood in front of her with one of his hands on her neck, and with one of his thumbs on the right side of her throat, making it difficult for her to breathe. [11] The complainant stated that the accused then guided her to her bed. She tried to kick the accused in his crotch but he grabbed her feet. She was about to scream. She made a "little squeak," and he put his fingers to his mouth and said "shh." [12] She testified that he then put his fingers across his throat. She describe in her examination in chief the motion and a related threat as follows: Q Sorry, you -- you just motioned with your right hand -- A Yeah. Q -- across your neck, with your index finger sticking out. Is that -- would that be a fair description? A Yes. Q And that you went across your neck? A Yeah, he did it across his own neck, staring at me. And he said, "You know how easy it would be for me to end you?" And he said, "Where would you like me to dump you?" He named a couple of -- he named two places. One of the places was a place I recognized as being a drop site that he goes to. I heard him mention that name once before, and the other name I had never heard before. I just took it as which side of Smithers. He then said, "It wouldn't matter anyways, because no one would find you. And don't worry about [her daughter], because I'll take her to Child Protective Services." Q At this point, [the complainant], can you -- can you tell His Lordship, if you're able to, how you're feeling at this point? A Terrified. Q Why is that? A Because it sounded like he wanted to kill me, and I -- I was terrified. And then when he would take [her daughter] to Child Protective Service, I was -- I felt more scared for her, because I didn't want her to be alone with him. [13] The complainant testified she then lay on her bed with the accused now standing at the foot of her bed. She then described the following: Q You -- what -- what's next, then? What happens next? A Right after he told me he would take her to Child Protective Services, and I just went quiet, he reached over and he turned the bedroom light off. Then, he walked over to the left-hand side of the bed, and I could see him. He was like -- he was looking for something, and I thought he was looking for something to grab, to hit me with. But there was nothing there. So, he sat down beside me, and -- on my left-hand side and put his -- his arm over me, like he was pinning me, almost. He was pinning me there. And then he just started to punch me in the stomach and said, "Do you like that? Does that hurt?" And he continued and was just saying that he doesn't like that I've been with other people. He doesn't like that I -- he doesn't like any -- he doesn't like my tongue ring, he doesn't like that I've been with other people. He doesn't -- he just doesn't like me. He just -- and I started to say, "I love you. I love you; I want things to work. I want us to be together." I felt, at that point, that that was how this was going to stop. He did stop punching my stomach, but then all of a sudden he punched me in the temple, on the left -- the left-hand side. I didn't see him do it. I just felt it. I was looking at him, in his eyes at the time. I didn't -- I didn't know. And then I felt his hand on my head, right on the top of my head, and he was squeezing, really hard, like he was trying to crush my skull. That's how I felt, like what he was trying to do. Then I felt my head moving backwards and towards the side -- to the left side. And I looked downwards, and I could see his hand coming up, really slowly, moving very slowly, and he was wiggling his fingers like he was teasing me with that. And he's putting it closer and closer towards my throat. And he goes -- and his hand's wrapped on my throat like this, but I go and I take my hands and I put them like this around him, and I started rubbing his hand and took it away. And then he started to bend my fingers backwards and say, "How about I just break a finger? How about I just break a couple of fingers?" And I had to move my hand -- move my arm, twist my arm, because he had bent my fingers back quite a ways, where I felt that if I didn't move my arm, that they would break. [14] With respect to the punch to her temple and a subsequent slap to the right side of her face, the complainant testified: Q Just to go back to when you were struck on the temple, you said that you didn't see the punch? A No, but I felt it. I felt like his knuckle got me pretty good, because it welted. Q Was it a hard punch or a light punch that -- the -- the punch to the temple? A It was hard. It left a welt for a few days, for at least -- it was there for two days, the welt, and then it was tender for about three days after. Q Three days after the welt had gone, so a total of five days? A Yeah. Q And then in terms of the slap, was it a light slap, a hard slap? A It stung. And I don't know if it left a mark. I didn't look in a mirror afterwards. At that point he told me he wanted to cuddle with me. So, he laid on the bed, and he wanted me to lay against him. And I was shivering and shaking. He asked me why I was shaking, and I was shaking because I was scared. I was full of adrenaline, and I didn't want to be near him, but I told him I was cold. So, we laid there for a while until my shaking stopped. And then he said he wanted to go watch TV. I said I wanted to go to sleep. He said, "No. I want you to come out to the living room and watch TV with me." So, I went out to the living room with me -- with him, sat on the couch, and he wanted me to cuddle with him. So, I sat on the couch beside him, and he put his arm around me. And he pulled me towards him so that I would be hugging him, and he held me there quite tightly. I laid there with him until I fell asleep, and that's when he woke me up and said, "Fine. Just go to bed, because you can't stay awake." [15] The complainant went to sleep and awoke Saturday morning. The accused stayed in the apartment. The complainant explained the reason she did not ask the accused to leave as follows: Q Did you want him in the apartment at this point? A I wanted to ask him to leave, but I felt that the whole reason that the violence occurred was because I didn't defend us as a relationship, and I felt that if I asked him to leave he would feel rejected, and that he may get angry at me again. And I thought the safest thing to do was to let it be, because at that point he was very calm. He was very nice. Like he did whatever he could to make me feel that he wouldn't hurt me afterwards. [16] The complainant testified that the accused stayed until Monday morning when he left for work. She felt that she could not leave while he was present because she felt watched. On the Monday morning, the complainant dropped her daughter at daycare and went to work. [17] The complainant did not initially contact the police. She testified that, about three days after returning to work, she spoke with her co-worker who encouraged the complainant to telephone the police. In examination-in-chief, the complainant stated that she thought she called the police later on December 31, 2012 or very early on January 1, 2013. In cross-examination she acknowledged she called the police around 8:30 p.m. on January 1, 2013. [18] The complainant testified that, when she telephoned the police to report the incident, the police wanted to speak with the accused. She testified that she was afraid that, if they did speak to the accused, he would be angry with her. She did not give a statement at that time. She felt that by reporting matters the police would have "something on file" if she needed to call again. The police phoned her once a month to check on matters. [19] The relationship ended in late February when the accused was visiting the complainant. Shortly after he arrived he started to pretend to punch her and made a comment to the effect that he should punch her for every time she had been with another man. She asked the accused how hard he would hit her and he said, "As hard as I can." He then started talking about taking a shower and, with the complainant's encouragement, he went to shower. [20] While the accused was in the shower, the complainant contacted a girlfriend to come and help, which her girlfriend did. The result was that the accused left the apartment without incident and the complainant and her daughter went to her girlfriend's home for the night. [21] On April 14, 2013, two police investigators in plain clothes came unannounced to the complainant's apartment and she gave a formal statement at that time. III. Credibility [22] With the complainant as the Crown's sole witness and no documentary evidence, the case at bar turns on the credibility of the complainant. [23] Justice O'Halloran, in writing for our Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 356-357, described the trial judge's task of the finding of credibility, portions of which I highlight: If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. and, The test must reasonably subject [the witness's] story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. IV. THE REASONABLE DOUBT STANDARD [24] The presumption of innocence is fundamental to all criminal trials. The burden is on the Crown throughout a trial to present sufficient evidence to prove an individual's guilt beyond a reasonable doubt; this burden of proof is never transferred to the accused (see: R. v. Lifchus, [1997] 3 SCR 320 at para. 36). The reasonable doubt standard does not change based on the nature of the Criminal Code offence alleged. [25] The reasonable doubt standard is a high threshold to overcome: R. v. Starr, 2000 SCC 40. V. FINDINGS [26] The complainant is not a meek or mild woman. As an example, when the accused demanded the return of two very nice sweaters he had bought the complainant as gifts, she did not comply and instead she insisted on keeping the gifts. [27] Based on the complainant's testimony, the events of December 28, 2012 arose without explanation. At one moment, the complainant and the accused were engaged in a playful water fight and within moments the complainant was subjected to assaults, threats, and confinement against her will. The complainant had no way of predicting whether such events might recur. [28] As the portions of the transcript that I have quoted show, the complainant testified that she was terrified, especially for the welfare and safety of her daughter. [29] The Court cannot rationalize the complainant's apparent willingness to continue to allow the accused to visit, on at least a couple occasions, after the December 28, 2012 incident if she were, in fact, terrified for her daughter. [30] The complainant loves her daughter and, like virtually every mother, would protect her child at all costs. It is inconsistent that she would have voluntarily exposed her daughter to the danger the accused would have presented if she had been terrified, especially having regard to the unpredictability of the danger. [31] The Court finds the complainant's testimony, that she was terrified for her daughter and herself, to be overstated. Her testimony is not consistent with her continuing to host the accused in her home, in the same manner she had prior to the alleged events, for a further two months. [32] Given that the Court has determined that the complainant overstated the terror she felt, the reliability of the remainder of her testimony is also eroded. [33] Where a witness overstates matters, the Court is challenged in separating that part which is true and that part which is overstated. In the case at bar, the Court cannot reliably distinguish what is truth and what is overstatement. For each of the three counts, the Court finds reasonable doubt that the events occurred as described. VI. Conclusion [34] The lack of a reliable factual foundation for any of the three counts gives rise to a reasonable doubt with respect to each count. The Court acquits the accused on all three counts. "Funt J."