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1.) R. v. JUNEJA

In the case of R. v Juneja, the facts are as follows. The Defendant is charged with assault and uttering threats. Following the trial, the charges were dismissed with brief oral reason, advising Counsel that further written admissions would be submitted. The Defendant is a Medical Doctor and the Complainant is also a Medical Doctor.

 

In 2007, the two were associates at the Main Street Walk-In clinic in Brampton, ON. Towards the end of 2007, and the early part of 2008, the Complainant and other members started to have differences, ultimately resulting in the Complainant being locked out of the clinic. The Complainant retaliated by stating the clinic was unsuitable for the training of residents.

 

This resulted in the clinic being dropped from the McMaster University residency program. This program was important to the Defendant. The Complainant alleges that in April of 2008, the Defendant angrily approached him at the hospital and requested they speak in private. The Complainant's response was, “I’m busy.” Allegedly, at this time, the Defendant grabbed the Complainant by the wrist and pulled him. The Complainant pulled his hand away. This is the alleged assault.

 

Some name-calling and swearing ensued as well. The Complainant claims that the Defendant also said, “I know where 100 Pertosa is,” which is the Complainant’s new place of work. This is the alleged threat. 

The next day, the Defendant wrote the Complainant a letter, apologizing for his behaviour. His letter did not specify which behaviour. The Complainant’s response was to report the incident to the hospital’s Chief of Staff, the hospital’s Occupational Health Chief, and to the College of Physicians and Surgeons. The Complainant also reported the incident to the police. The Defendant was then arrested for assault and released on a promise to appear and undertaking. On his first appearance, he was told that an additional charge of threat would be added. The trial officially began at around 11:00am on November 23, 2009. The case continued the following day.

 

Once all evidence was submitted, it was determined that there was no case for the Defence to meet. The case was dismissed. Brief oral reasons were given by the trial Judge for the dismissal. The trial Judge was not satisfied that the words were even spoken by the Defendant, but if they were, it was not constituted as a threat. With the assault charge, the trial Judge applied the doctrine, de minimus non curat lex, and dismissed the charge. 

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The Judge believed that the Defendant did place his hand around the wrist of the Complainant; however, he did not believe that the Defendant pulled or yanked on the Complainant’s wrist. Overall, there was no possibility of conviction. A conviction would be a waste of time and resources according to the trial Judge. The case did not suffer from premature adjudication. Rather, it was necessary and a fair exercise of the Court's authority to control its own processes in the interests of justice.

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2.) R v. WL, [2021] OJ No 1849, 2021 ONSC 2529

Judge:  RD Cornell

Background:

LE is MM’s mother. WL and LE became romantically involved and began cohabitating in August of 2013. Neither LE nor WL were working at the time. MM alleged that when her mother would leave the residence to do laundry or to go to the corner store that WL would touch her private parts inappropriately. MM made a video statement alleging this and describing some of the assaults on her during the time she was in Grade 5. MM states that at the time of the incidents, she was around the age of 8 or 9 as she was in Grade 4. MM stated she was scared to inform her mother, LE, since she had been threatened by WL. WL denies ever touching MM inappropriately. 

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CAS had been involved once in the past over MM. She had bruised both legs during a temper tantrum and alleged that WL struck her. MM later retracted her statement, saying she made it up because she was angry at WL for telling her to clean her room. 

WL was asked to leave the residence on April 8, 2016, after LE discovered that he had cheated on her and had been lying to her. Shortly, after being removed from LE’s home, WL was charged and convicted of Sexual Assault and Sexual Interference in another case.

​

MM disclosed to her biological father at some point after this that WL had touched her inappropriately. Her father called the police and notified LE. MM was interviewed by police to gather a statement on September 28, 2017.

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Issue:

Did WL sexually assault MM? If so, what age was MM at the time?

​

Rule:

“Everyone who commits a sexual assault is guilty of:

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or 

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”

Criminal Code, RSC 1985, c C-46 s 271

“Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years:

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or 

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.”

Criminal Code, RSC 1985, c C-46 s 151

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Assessment:

The Judge begins by noting this is not a competition of credibility. It is their job to examine the evidence as a whole and how witness statements fit into the narrative that the evidence portrays. They must consider the facts as a whole when determining if reasonable doubt exists. The Judge then began their examination of the evidence.

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The Judge noted that MM was able to give details about the who, what, where, when of her assault. MM states it was WL who touched her; the assaults would take place in her bottom bed bunk; they always took place when her mother was away, thirty minutes before bedtime; and the sexual assaults were all of the same nature (WL touching MM’s private parts).

​

The Judge examined similar fact evidence where WL had been convicted for the same charges. He was accused of sexual assault involving another minor, JC-G. The Judge noted: in both cases the victims were nine-year-old children; both assaults took place where the accused was in a position of power over the child; both had sexual assaults that consisted of the accused touching the child’s private areas and did not continue into other sexual activities; and both took place around the same time. The incident with JC-G occurred after WL was removed from LE’s home. The Judge used this to determine that WL had a propensity to engage in the specific behaviour with which he was charged. 

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The Judge followed this by stating that anytime similar fact evidence is considered, the Court must determine if there is a risk of collusion/concoction. The Judge decided that even though MM and JC-G were friends, based upon the evidence and the circumstances surrounding it, it was doubtful MM had colluded in bringing the allegation, nor did the Judge believe that she had concocted the allegations.

​

The Judge then assessed MM’s credibility. They began by examining the CAS event. The Judge states that LE saying that MM lied does not equate to the fact that she did. MM had been with CAS for a week at the point where she changed her story. In the Judge's mind this left a possibility that she had lied about being initially dishonest in order to return home. Alternatively, she could have lied about WL hitting her. Without representatives of MM’s school, CAS, and the Police as witnesses, or records from the organizations to substantiate that she had been lying, the Judge was unable to decide as to MM’s credibility due to the inference of dishonesty being insufficient to make someone noncredible.

​

 Next, the Judge examined the issue of MM’s memory. MM stated she had a poor memory. This was reflected in her testimony but also her frequent utterances of “I don’t know” and “I don’t remember”. However, the Judge deemed MM a credible witness. This is due to her evidence being internally consistent, her video testimony being extremely detailed, and her answers during cross-examination being consistent throughout with her video testimony. The Judge took judicial notice to the fact that MM, as a child, would be unable to remember events as clearly during trial as during her video testimony, due to the difference in time.

When examining WL’s evidence, the Judge found that although he had gone to great lengths to attempt to minimize the amount of time and frequency with which he was left alone with MM, WL had ample opportunity to sexually assault MM, given their brief nature.

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Conclusion:

The Judge was satisfied that the Crown had proved beyond a reasonable doubt that WL had committed a sexual assault. They further found that WL was guilty of sexual interference by way of touching MM inappropriately with his hand for a sexual purpose, while she was under the age of 16.

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3.) R v. KOVACEVIC, [2021] OJ No 1857, 2021 ONSC 2667

Judge: D.F. Fitzpatrick

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Background:

Mr. Milan Kovacevic, the Respondent, and M.M., the Complainant, began communicating months prior to meeting. They met through a website called SP411 that was regularly frequented by “Johns” and sex workers. M.M. testified that she felt an emotional connection to Kovacevic prior to meeting. Kovacevic alleged that the two shared feelings and they began a romantic relationship prior to their first meeting.

The two met for the first time in Hamilton,ON  where they went for drinks at the downtown Honest Lawyer restaurant. M.M. alleged that following this, the two went to the Sheraton Hotel and engaged in sexual activities, for which she was compensated. Mr. Kovacevic alleged that they went to the Hotel bar prior to going to the room for more drinks. Mr. Kovacevic also alleged that the sexual activity was consensual and that no payment was exchanged. Kovacevic spent the night at the Hotel with M.M.

M.M. stated the two met for the second time in Oakville, ON at the Sandman Hotel, sometime during September. Kovacevic confirmed this. Where accounts differed was in the events. M.M. stated she “believed” the two had exchanged money., Kovacevic disputed this and stated they did not exchange any money. M.M. further alleged that Kovacevic bit her thigh without consent. Kovacevic alleged that while performing oral sex on M.M. she requested that he bite her on her thigh, so he complied. He stated that M.M. requested he bite her harder, to which he complied and observed no complaints from M.M. M.M. admitted that she posted a photo of the bite mark with a caption saying, “Lol you know it’s a good session when lmao.” M.M. stated it was during this meeting that she realized she had feelings for Mr. Kovacevic and allowed him to spend the night with her. Mr. Kovacevic alleges he spent the following night with her as well.

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M.M. alleged that the two began a relationship after their second meeting. At this time, Kovacevic helped her acquire Hotel accommodations to perform sexual acts for compensation with clients. M.M. testified that during one of their meetings, Kovacevic sexually assaulted her at the Sandman Hotel in Oakville, ON. She alleged she did not want sex at the time, but the accused pushed himself onto her and had intercourse with her in “doggie position”. Kovacevic confirmed that the two met at the Sandman Hotel where M.M. had been working that day. However, he stated that the sex was consensual and that they only engaged in “missionary position”.

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M.M. alleged that, the second time she was sexually assaulted, was at the Four Points Hotel in Niagara Falls, ON. She stated that the two had attended a strip club where she drank copious amounts of alcohol and “blurred out.” To  her recollection, both parties were extremely intoxicated. However, she allegedly recalled going back to the Hotel room where Kovacevic pushed her down against the bed and sexually assaulted her. She initially could not recall the position used, but later changed her testimony to say it was a “doggie style assault.” M.M. had a “vague recollection” of saying she did not want to have sex. Kovacevic confirmed meeting with M.M. at the Four Points Hotel on September 30th. Kovacevic testified that he observed an empty liquor bottle in the room with M.M. when he initially arrived. Kovacevic testified that at the strip club he consumed 4-5 beers whereas M.M. consumed approximately 15 alcoholic drinks. Mr. Kovacevic had been noted as saying, “she drank enough for an elephant” and “she’s like a machine” when referring to her alcohol consumption. Kovacevic testified they did not have sexual relations because he was too tired from work and the two instead cuddled. Kovacevic testified that the two had consensual sex the next evening and the following morning they both went home.

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On or around the 17th of October, Kovacevic booked a room for M.M. to work from in Kitchener, ON at the Radisson Hotel. M.M. got evicted due to being discovered escorting. She contacted Kovacevic, asking for help finding accommodations, to which Kovacevic obliged. M.M. alleged that Kovacevic was quite angry about having to drive from his home in Hamilton, ON to Kitchener, ON. After finding another room at the Kitchener Inn and Suites, the two proceeded to go for drinks and food at a local restaurant across the street. M.M. alleged that at this bar, the accused threatened her by making references to how often sex workers disappear, drowning her, and sexually assaulting her via anal penetration. M.M. stated that the accused laughed while saying these things to her, saying it was a joke. She also stated they had not been arguing at the time and that she did not take the alleged statements as a joke. Kovacevic denied uttering any threats to M.M. and stated that they had argued at the restaurant and that he had been calling her names. 

Upon returning to the Hotel room, the two continued to argue. At some point, the argument escalated and the accused removed M.M.’s luggage from the room. M.M. testified that Kovacevic pushed her against the bed frame, and this resulted in her falling to the ground and sustaining injury. Kovacevic denied pushing M.M., as well as any other assault allegations.

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After the accused had calmed down, M.M. began secretly recording the accused allegedly, afraid she would be sexually assaulted. In the recording, M.M. can be heard telling Kovacevic to get off her and to stop, Kovacevic complaining that M.M. has intercourse with other people for money, but not with him, Kovacevic asking for a kiss, and M.M. asking to cuddle. She states she offered to cuddle out of a belief that it would be placating. M.M. alleged that after the recording ended, she was sexually assaulted by the accused. Kovacevic confirmed that he wanted and asked for a kiss and that M.M. only wanted to cuddle but denied sexually assaulting M.M. He stated that the two spent the night cuddling and nothing else. Kovacevic stated he ordered a pizza in the morning and M.M. ordered a bottle of booze and started drinking. Following this, he states he left to return home and M.M. remained to escort.

The pair's relationship ended on or around October 22. M.M. met with police and provided a statement while intoxicated on November 5.

Issues:

Can the Crown prove, beyond a reasonable doubt, that Mr. Kovacevic is guilty of the offences he has been charged with?

 

Rule:

“Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of:

• (a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment of,

  • (i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,

    • (A) for a first offence, a fine of $2,000, and

    • (B) for each subsequent offence, a fine of $4,000, or

  • (ii) in any other case,

    • (A) for a first offence, a fine of $1,000, and

    • (B) for each subsequent offence, a fine of $2,000; or

• (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,

  • (i) in the case referred to in subparagraph (a)(i),

    • (A) for a first offence, a fine of $1,000, and

    • (B) for each subsequent offence, a fine of $2,000, or

  • (ii) in any other case,

    • (A) for a first offence, a fine of $500, and

    • (B) for each subsequent offence, a fine of $1,000.”

Criminal Code, RSC 1985, c C-46 s 286.1(1)

“Everyone who commits an assault is guilty of:

• (a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

• (b) an offence punishable on summary conviction.”

Criminal Code, RSC 1985, c C-46 s 266

“Everyone who commits a sexual assault is guilty of

• (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

• (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”

Criminal Code, RSC 1985, c C-46 s 271

“(1) Everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat:

• (a) to cause death or bodily harm to any person”

Criminal Code, RSC 1985, c C-46 s 264.1(1)a

 

Application:

The accused was charged with a variety of offences. These being: receiving sexual services for consideration in Hamiliton, ON and Oakville, ON, contrary to s. 286.1 (1) of the criminal code; assault contrary to s. 266 of the criminal code in Oakville, ON and Kitchener, ON; engaging in a sexual assault contrary to s. 271 of the criminal code in Oakville, ON, Niagara Falls, ON, and Kitchener, ON; and uttering threats contrary to s. 264.1(1) of the criminal code in Kitchener, ON.

The Judge noted that as both sides had called only one witness, he mostly had to determine in order to establish if there was reasonable doubt about the credibility and reliability of both witnesses. He states in s.45, “credibility refers to the ‘veracity or truthfulness’ of the witness. Reliability is concerned with a witness's ‘ability to accurately observe, recall and recount’.” Additionally, the Judge states they must be careful not to reduce the case into who is believed more but to instead examine the evidence presented in its totality to determine whether a reasonable doubt exists.

The Judge did not believe that either witness had credibility problems. He was, however, bothered by their reliability. M.M.’s recollection of events was found to be unreliable, in particular, due to her admitted consumption of alcohol during material events, sometimes contradictory testimony, and limited details provided.

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The Judge broke down his continued assessment by examining the charges based upon chronology:

Charge Details: Obtaining sexual services for consideration (in Hamilton, ON)

The Judge noted that M.M. was unable to provide anything but limited details as to what had occurred throughout the day. She also had no recollection of going to the Hotel bar prior to returning to the Hotel room. Similarly, M.M. was unable to independently recollect her fee and only had some recollection after referring to a Police statement. The Judge identified a problem with this. M.M. had been intoxicated at the time she made her statement to the Police. The Judge did not believe the statement, or the recollection could be reliable since it had not been properly vetted. 

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Additionally, the Judge was confused by M.M.’s answers during cross-examination. M.M. offered contradictory statements about where the funds had been placed. She rooted her memory that money had been on the dresser in that events had been traumatic for her. However, M.M. had previously admitted to having sex with multiple men a day and that being contacted for or engaging in sexual services was not traumatic for her. M.M. had also not testified prior about any traumatizing events that occurred on the day previously. She attempted to explain the event being traumatizing by saying that it is traumatizing being sexually assaulted. However, she had not alleged that she had been sexually assaulted during the first meeting at any point. 

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The Judge noted that Kovacevic was able to provide more details about the meeting even though he himself had been drinking for multiple hours as well. Furthermore, the Judge did not believe the evidence presented before him for the events of the day was congruent with a business relationship that would result in thirty-minute paid sex. Mainly, statements from both saying they shared an emotional bond, the fact that they had corresponded for months prior to meeting, they had spent multiple hours together on a date, and had spent the night together. The Judge's opinion was that the facts were more consistent with two people beginning a relationship than with a business transaction and therefore more consistent with Kovacevic’s explanation of events. This left the Judge with reasonable doubt as to whether the two had enjoyed a business relationship that resulted in sex for hire, and they subsequently acquitted Mr. Kovacevic charge for obtaining sexual services. 

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The Judge ended the assessment of this charge by stating at s. 66, “although unnecessary for the disposition of this charge, I do want to address M.M.'s evidence. The limited details provided, inconsistencies, indecisive explanations and admitted, extensive alcohol use critically undermine the reliability of M.M.'s recollection of these events occurring two years prior.”

 

Charge Details: Obtaining Sexual Services for consideration and Assault (Oakville, ON)

Like the charge previously examined, Kovacevic was able to provide more details and M.M. was able to provide only a limited amount. She similarly was not able to provide concrete details for where the money had been placed. She also could not state whether she had been paid, only that she believed that to be the case. The Judge believed that the evidence of their second meeting was also more consistent with a meeting between lovers rather than a business relationship designed to result in paid sex. This was based upon the fact that the two were in an intimate interpersonal relationship, they had similarly spent time on a date prior to going to the Hotel room, and they had spent the night together. This was once again more consistent with Kovacevic’s narrative. The Judge was therefore left with a reasonable doubt as to the nature of their relationship and acquitted Kovacevic of obtaining sexual services for consideration.

Regarding the alleged assault that took place on the same date, the Judge acquitted Kovacevic of the charge. This is because, Kovacevic's explanation that he had bit M.M. on the thigh as requested, was not “meaningfully challenged” and was therefore accepted. This left the Judge with a reasonable doubt and the sexual assault charge was dismissed.

 

Charge Details: Sexual Assault (Oakville, ON)

The Judge observed that during M.M.’s testimony, she had difficulty differentiating between events that occurred in Hamilton, ON and events that had occurred in Oakville, ON. Additionally, she stated events at the Sandman Hotel in Oakville, ON, were blurry until she changed her testimony during cross-examination to state that events leading up to the sexual assault were blurry, but not the assault itself. She was able to offer no explanation for why events leading up to the sexual assault incident were blurry, except for the sexual assault, which she remembered in great detail. This brought her reliability into question. Mr. Kovacevic’s testimony was that the two had enjoyed consensual sexual relations. Since there was no meaningful challenge to his explanation, the Judge was left with reasonable doubt and acquitted Kovacevic of the sexual assault charge in Oakville, ON.

 

Charge Details: Sexual Assault (Niagara Falls, ON)

The Judge noted that M.M. had no independent recollection of the event at all. She was also, by her own admission, extraordinarily intoxicated. The Judge had doubts over whether her recollection of events could be sparked by text messages when the events in question were all extremely blurry. M.M. was able to offer no explanation for the validity of her recollection. Her reliability as a witness was questionable at best. Additionally, the only meaningful statement she made was that she had a vague recollection of saying she did not want to have sex. Mr. Kovacevic on the other hand, had an independent memory of the events, testified as to the amount that M.M. drank, and denied having sex at all. Mr. Kovacevic’s explanation was not meaningfully challenged and as a result, the Judge was left with reasonable doubt and acquitted Kovacevic of the charges.

 

Charge Details: Uttering threats, Assault, and Sexual Assault (Kitchener, ON)

The Judge noted that again, M.M. was unable to provide anything but limited details about the threats. They also noted at the time of the alleged offence that both parties had been drinking. Dissimilarly from usual, Kovacevic was also unable to provide anything but limited details regarding the threat charge. The Judge noted as usual, Kovacevic’s defense had not been meaningfully challenged and his explanation was consistent, so the Judge could not deny it. However, the Judge stated that due to the limited details provided by Mr. Kovacevic, he was also unable to accept it. The Judge therefore determined that they needed to examine the evidence presented by M.M. Based upon M.M.’s evidence that Kovacevic had been joking when he made his alleged threats, the Judge did not believe that the Mens Rea element of the offence had been met. They were then left with a reasonable doubt that Kovacevic knowingly uttered threats. Subsequently, the charge against Kovacevic was dismissed.

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The Judge determined that they would once again examine the evidence presented by M.M. as they could neither accept nor deny Mr. Kovacevic’s defence due to it being not meaningfully challenged. The Judge identified a few issues with the evidence that M.M. provided. Concerns over her reliability due to her alcohol consumption, inconsistencies that were not addressed when she described her assault, and the fact that she did not have any photos of her injuries. The Judge found this particularly concerning. M.M. had previously taken photos of her bite mark prior and made contradictory statements relating to how often she posted to social media and how commonplace it was for her to take photos. Additionally, the Judge found that the recording that was supposed to have taken place post-assault, was inconsistent in its contents with an assault having just occurred. After considering the evidence, the Judge could not determine whose narrative was true and therefore was left with a reasonable doubt as to whether an assault had taken place. Subsequently, Kovacevic’s assault charge in Kitchener,ON was dismissed.

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The Judge again was unable to deny or accept Mr. Kovacevic’s defense due to the limited details he provided and his testimony that the Judge thought unbelievable. Similarly, to the other charges, the Judge had concerns over M.M.’s reliability due to her extensive alcohol consumption. The Judge also had concerns over the evidence presented. The Judge found M.M.’s testimony inconsistent due to her confusing explanation of why her memory was better for the Kitchener, ON events, and that neither of the two recordings she had taken corroborated her allegation of sexual assault. Additionally, the text messages gathered by the Crown were determined to have no substantive weight since they offered little context and no admissions from Kovacevic. The Judge was unable to determine who was truthful in their accounts and as such, had reasonable doubt a sexual assault had taken place. Therefore, Mr. Kovacevic’s charge for sexual assault in Kitchener, ON was dismissed. 

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Conclusion:

The Judge came to the final decision that the Crown was unable to meet the required burden of proof, and as such, he had no choice but to dismiss all of the charges against Mr. Kovacevic. 

M.M.’s evidence was continually undermined by her issues with alcohol, limited details provided, inconsistencies in her testimony, and her own lapses memory.

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4.) R v. OKEKE, 2021 ONCJ 193

Judge: Justice David S. Rose

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Violent Incident 1:

On March 26, 2020, Mr. Okeke was arrested due to a violent incident at his residence. Mr. Okeke was mad about his roommate asking to borrow $4.00, which resulted in Mr. Okeke assaulting his roommate by throwing him to the ground and then kicking him in the head and neck. 

 

Violent Incident 2:

On March 27, 2020, Mr. Okeke was released on his own recognizance. When he was released, he was still wearing the white biohazard suit he was given because he had urinated on himself. He walked south to Hillcrest mall. A CCTV camera positioned above the parking lot of Hillcrest mall captured Mr. Okeke chasing a vehicle in the parking lot. An Officer was seated in his patrol car. At first, Mr. Okeke didn’t seem suspicious as he walked towards the patrol car. When he got there, he punched Officer Varao through the open window. Officer Varao stepped out of his patrol car, where it is seen, Mr. Okeke takes off his boots and approaches him in an aggressive way. Officer Varao had taken out his baton and struck Mr. Okeke. It had no effect on Mr. Okeke and Mr. Okeke proceeded to punch Officer Varao in the head, knocking him to the ground.

 

In Officer Varao’s attempt to get up, Mr. Okeke kicks him and straddles him on the ground, repeatedly punching him in the head. Mr. Okeke disarms Officer Varao and hits him several more times with the police baton. Then, Mr. Okeke tries to get a hold of Officer Varao’s use of force belt, which contains his pistol. The two of them struggle for the belt and eventually, Officer Varao gets control over the pistol. Officer Varao gets back onto his feet. Mr. Okeke walks off and at 3:42pm, several more Police Officers arrive on the scene. Mr. Okeke was arrested. 

 

When Mr. Okeke was interviewed at the Police station, it was obvious that things he was saying were consistent with mental illness. He was saying things like,

• “I spoke with God, there’s no God. Police officers, there is a God. You are God. I don’t know what I’m saying.”

• “I punched him, and he came out of the car… he didn’t shoot me, he didn’t taser me, and I was told to continue doing that, to shoot him, not to shoot him.”

 

Although Officer Varao was on his feet,  he was taken by ambulance to Sunnybrook Hospital, which is a regional trauma centre. He was diagnosed there with a skull fracture, small frontal subarachnoid hemorrhage, lacerations and fractures of the right roof orbital and right occipital hematoma.

 

Mr.Okeke’s History of Mental Illness:

Mr. Okeke moved from Nigeria to Canada when he was 16. He has one uncle with a history of major mental illness. While working at Cineplex theatres, he was experiencing paranoid symptoms, which included voices of people mocking him. He then returned to Nigeria and was diagnosed with psychosis and prescribed psychotropic medication. When he returned to Canada, his paranoid symptoms returned. He heard voices and would act out violently. The diagnosis he received in April of 2019 was substance-induced psychosis, but schizophrenia needed to be ruled out.

 

On March 21, 2020, Mr. Okeke was admitted to Markham Stouffville Hospital and discharged on March 23rd. He was in a highly psychotic state and asked to be shot by the Police.

 

On March 24, Mr. Okeke was hearing voices and had an encounter with the Police consistent with “suicide by cop.” He had to be escorted out of a Loblaws store because of inappropriate comments to staff.

 

By March 26, Mr. Okeke had the encounter with his roommate over $4.00. His roommate told the Police that Mr. Okeke had been accusing Windsor Police of raping him. They also said that he had psychotic symptoms while he was living in the house. Mr.Okeke claimed to be receiving communication from God. Everything that Mr. Okeke was doing and saying was known as somatic passivity, which is a symptom of schizophrenia. 

 

It was documented that Mr. Okeke had a history of severe mental illness, likely schizophrenia. He lacked rational perception and was experiencing hallucinations and delusional beliefs. 

 

Conclusion:

Mr. Okeke filed a letter of apology to Police Officer Varao, which describes in heartfelt terms, how apologetic he is. Under the criminal code, no person is criminally responsible for an act if they are suffering from a mental disorder, which makes them incapable of understanding the nature and quality of the act or knowing that it is wrong. The Judge came to the conclusion that Mr. Okeke was not criminally responsible for the assault on Police Officer Varao and Mr.Okeke pleaded not guilty to both charges. The evidence is beyond meeting the test of balance of probabilities. 

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5.) R. v. FRANCIS

Background:

In the case of R v Francis, 2019, the facts are as follows. Mr. Francis attended the Smart Shop self-storage business in Pickering, Ontario in November of 2017. Ms. Eryca Helsden was employed there as a Manager. She engaged Mr. Francis in a discussion about the rental agreement. This included advising Mr. Francis that renters were prohibited from sleeping in the rental lockers. Mr. Francis rented the locker and was given a code for the pin pad to access the property. The entrance to the facility where the pin pad was located is video monitored and there is an intercom system to contact the front office if needed.

 

Ms. Helsden was familiar with the distinctive vehicle that Mr. Francis drove at the time. It was described as an older model car that had a broken window on the passenger’s side that was covered by a garbage bag or cardboard. As a result, this alerted her to when Mr. Francis was at the facility. After renting the locker, Mr. Francis attended the unit on two dates in November of 2017. During his visits, Ms. Helsden had the opportunity to observe his behaviour. She described his behaviour as strange. Mr. Francis was seen to be walking or running inside the facility and coming close to the front office door and waving at the camera. She did not describe this behaviour to be rude, menacing or in any way threatening towards the employees prior to the date of incident. She did say that she felt uncomfortable with Mr. Francis. 

 

Incident:

On November 15, Ms. Helsden observed Mr. Francis’ vehicle in the parking lot of the facility for approximately two hours. She stated that this was an unusual amount of time for someone to spend at a small storage locker. Given this, she went to see if something was wrong. It was late afternoon by the time Ms. Helsden attended Mr. Francis’ locker. She noticed the door was closed, but unlocked. She listened for a moment to see if she could hear any movement but didn’t. Instead of knocking and announcing her presence she went to get another employee, Carolyn Lecours. When the two employees returned together to Mr. Francis’ locker, they immediately opened the door to his unit without warning. Ms. Helsden observed Mr. Francis lying down in a sleeping bag inside the unit. Mr. Francis, at this time, began screaming and wanting to know why they were in his unit. Ms. Helsden informed him that sleeping in the locker was prohibited, so she evicted him without any discussion or warning. He was only permitted to collect a few of his items and was instructed to leave the facility immediately. Ms. Helsden returned to the front office and notified her boss of the incident. Mr. Francis complied with the eviction, even though the self storage facility still had some of his belongings. The Police were contacted. Once Mr. Francis left the facility, Ms. Helsden felt that the Police were not needed, so they did not follow-up on the complaint.

 

Second Incident:

A week after the eviction on November 22, some time after noon, Ms. Helsden was in the front office with Ms. Lecours and a customer, Mr. Zaida. Ms. Helsden observed Mr. Francis drive-up and stop at the pin pad to enter his code and gain access to the facility. Mr. Francis pressed the intercom button to communicate with the front office personnel, but Ms. Helsden chose to ignore him, despite the fact that they still held his property. Ms. Helsden became increasingly concerned, so she instructed Ms. Lecours to lock the front doors to the front office. Both employees watched on the camera as Mr. Francis backed his car away from the entrance to the lockers. Instead, Mr. Francis parked on the far side of the parking lot. 

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Approximately one to two minutes later, Ms. Helsden observed him exit the vehicle while wearing a face mask and approaching the front doors of the front office with a baseball bat over his head. Mr. Francis then began to strike the glass doors with the bat, using increasing force. Ms. Helsden, Ms. Lecours and the customer fled the front entrance area to another exit inside the office building that had a view of the parking lot. The striking continued for about 30 seconds. Mr. Francis then returned to his vehicle. While he sat in his car, he screamed at them through the passenger window. Mr. Francis then drove towards the building where they were standing inside the exit doors. He was swearing at them, gave them the finger, drove-up onto the wheelchair access ramp, and then drove away. The Police at this time received a dispatch call to respond to a man smashing windows, making threats and that he tried to hit the  Complainants with his vehicle. They were also advised that the suspect was armed. 

 

Apprehension of Suspect:

Shortly after the service call, Cst. O’Connor’s attention was drawn to a car driving through a parking lot of a Walmart at a high rate of speed. He realized it was the vehicle in question and began to follow it with a fully marked cruiser. Mr. Francis and the cruiser approached an intersection, and it appeared that Mr. Francis was going to stop, but instead, sped through a red light. The Officer continued to follow the erratic driver, Mr.Francis, as he reached speeds of approximately 65 kilometres in a 50 kilometre zone. Officer O’Connor followed him for approximately 2 kilometres with full lights and sirens activated, but Mr. Francis failed to stop at any point. A helicopter was called for assistance, as well as a number of other Police Officers. Three cruisers worked in tandem to try and force Mr. Francis off the road to prevent any further violence. Tactical Officers were also called to respond to the pursuit. The Police were also advised of the allegations of the suspect, Mr.Francis. 

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Officer McKinnon tried to engage in a rolling block to stop Mr. Francis, but Mr.Francis’ driving became more erratic and unpredictable.  Mr.Francis began weaving from side to side between two eastbound lanes to prevent Officer McKinnon from getting in front of him. Eventually, another Officer was able to bump the back of Mr. Francis’ vehicle with her cruiser until he eventually lost control and went up onto the grass along the roadside. Other Officers used their vehicles to pin him in. With their guns drawn, Mr. Francis was removed from the vehicle and placed on the ground. The baseball bat, a receipt for the baseball bat and the mask were all located during a search incident to arrest.

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Legal Issues:

The legal issues in this matter pertain to the information that alleges four separate counts of assault with a weapon against two employees, a customer and the truck driver. In addition, Mr. Francis is charged with having a face mask while committing an indictable offence and possessing a weapon for the purpose of committing an offence. The Justice in this matter made the decision to look at the guiding legal principles in a number of judgments as they apply to the unique facts of the case. 

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Issue 1:

Issue 1 deals with the assault with a weapon with respect to the Complainants standing inside the facility. The Crown was unable to provide the presiding Judge with a guiding case with similar facts. In order to have a fair trial, the Justice considered whether the Crown has proven beyond a reasonable doubt all the elements of an assault with a weapon. The elements of an assault with a weapon are outlined under section 265 of the Criminal Code. Given that, Mr. Francis did not apply force directly or indirectly to any of the Complainants. The question to be answered is whether his actions constituted a constructive assault under s. 265(1)(b) or whether he accosted the Complainants while carrying a weapon under s. 265(1)(c). Even though a bat is not designed to be used or intended for use as a weapon, in this matter it was used for the purposes of intimidating and threatening multiple persons. It meets the definition of a weapon. As a result, it meets the essential context to determine if Mr. Francis was guilty of three counts of assault with a weapon. 

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The cases of R. v Horner, R. v Edgar and R. v Patrick were all referenced in this decision. The two distinguishing facts in this case, in order for the bat to meet the statutory definition of a “weapon,” had to be used for the purpose of threatening or intimidating a person. There is no evidence that showed Mr. Francis knew that the specific employees who evicted him would be in the office that day. He was not attempting or threatening to apply force to another person; rather, he was intending to and actually applied force to the property. Secondly, there was a set of locked, thick, completely undamaged doors. As a result, the Justice ruled that the Crown had not proven beyond a reasonable doubt the essential elements of a constructive assault with a weapon contrary to section 265(1)(b) of the Criminal Code with respect to the three Complainants inside the office. 

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Issue 2:

Issue 2 deals with accosting a person while openly carrying a weapon. Mr. Francis is acquitted of Counts 2*, 3* and 7* as they relate to allegations of assaulting Ms. Helsden, Ms. Lecours and Mr. Zaida with a bat. 

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Issue 3:

Issue 3 deals with the assault with a weapon with respect to the truck driver. Unlike the occupants of the office, the truck driver in the parking lot could hear what Mr. Francis was saying to him. The Justice accepted that Mr. Francis wielded the bat in a threatening manner while approaching him, still wearing the mask. There is ample evidence that Mr. Francis attempted or threatened, by act or gesture, to apply force to Mr. Motilal, the truck driver in the parking lot. As a result, Mr. Francis is found guilty of Count 4*. 

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Issue 4:

Issue 4 pertains to Mr. Francis wearing a face mask while committing an indictable offence. There is no doubt that Mr. Francis was wearing a face mask while committing an indictable offence. Section 351 (2) of the criminal code states, “everyone who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.” The Crown did not make any submissions regarding the essential elements to prove beyond a reasonable doubt. The Crown, however, did present evidence that Mr. Francis was angry with the employees. He bought a bat within the hour as well as a face mask and returned to the office with the intent to commit an offence. Mr. Francis undoubtedly committed the indictable offence of mischief. As a result, Mr. Francis is found guilty of Count 5*.

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Issue 5:

Issue 5 deals with the possession of a weapon. While a bat is not designed or intended to be used as a weapon, it was used for the purpose of intimidating or threatening a person. This meets the statutory definition of a weapon. No matter what Mr. Francis’ intentions were when he removed the bat from the vehicle, his conduct escalated to become dangerous. The Crown has proven beyond a reasonable doubt and Mr. Francis was found guilty of the offence. 

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Mr. Francis is guilty of the following offences: 

Count 1: Flight from police contrary to s. 249.1(1) 

Count 4: Assault with a weapon contrary to s. 267(a) 

Count 5: Having his face masked contrary to s. 351(2) 

Count 8: Possession of a weapon contrary to s. 88(1) 

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Mr. Francis is found not guilty of the following offences:

Count 2: Assault with a weapon contrary to s. 267(a) 

Count 3: Assault with a weapon contrary to s. 267(a)  

Count 6: Mischief contrary to s. 430(4) with respect to the pin pad 

Count 7: Assault with a weapon contrary to s. 267(a) 

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6.) R v. DALEY ONSC 2282

Charge:

On July 20, 2020, Dustin Daley (“Mr. Daley”) pleaded guilty to assault causing bodily harm of Angela Korbiel (“Ms.Korbiel”). 

 

Background:

Dustin Daley and Angela Korbiel had an on-again, off-again relationship for about 4 years. They never lived together, and their relationship was very toxic. On April 29, 2017, Ms. Korbiel went to a work gala with a female co-worker. Mr. Daley did not want her to go without him, since there would be males at the gala. Ms. Korbiel agreed to see Mr. Daley after the gala and texted him, asking to pick her up at 11:30pm. Mr. Daley refused, and in turn, Mrs. Korbiel ended up staying later at the gala. After Mr. Daley realized Ms. Korbiel wasn’t coming home yet, he texted her slurs and told her she should be home. At approximately midnight, Mr. Daley drove to the convention centre where the gala was held, and waited for Ms. Korbiel to exit. After waiting, he saw her exit with another man. As Mr. Daley got mad, he proceeded to yell at her through the window with more slurs. He attended a bar down the street and ran into an old female friend, who he wanted to use to make Ms. Korbiel jealous. When he drove by the convention centre again, this time with his old female friend in the car, he proceeded to yell slurs at Ms. Korbiel again. 

 

At around 1 am, Ms. Korbiel arrived at her apartment, locking all doors and windows in fear Mr. Daley would come looking for her in anger. At around 2am, Mr. Daley went to where Ms. Korbiel lived. He gained entry into her home and ran downstairs, where he then beat Ms. Korbiel by punching her in the face, chest and stomach. The assault lasted for around 5 minutes, and after Mr. Daley got up, he began to cry and essentially blamed Ms. Korbiel for his anger and that she was the reason for his abuse saying, “why can't you just be a good girl? Why can't you love only me?” Ms. Korbiel managed to run past Mr. Daley to her neighbours, but no one came to the door. Mr. Daley fled to his car, which is when Ms. Korbiel was able to return to her apartment and call 9-1-1. 

 

Ms. Korbiel suffered extensive injuries. She had broken ribs, which caused a partially collapsed lung and pneumothorax. She had bruising on her chest, face, breast, stomach, back, shoulders, arms, wrists, hands, feet and legs, as well as a swollen and black right eye. If Ms. Korbiel was not able to return to her apartment and call 9-1-1, the injuries she sustained could have been much worse, if she had not received medical attention right away.  Ms. Korbiel ended up having a chest tube for days and was treated on a number of occasions at the hospital for her sustained injuries. 

 

On 5 other different occasions over about a month-long period, Mr. Daley contacted Ms. Korbiel in the middle of the night. During those calls, Mr. Daley engaged in emotional blackmail. At times, he tried to rekindle Ms. Korbiels love for him. 

 

Legal Proceedings:

The Crown is seeking a global sentence of 30 months with credit for pre-sentence custody, but no credit for the time Mr. Daley has been on bail. Alternatively, the crown is seeking a sentence of 2 years less a day plus 3 years probation. In either of these scenarios, the Crown is seeking a restitution order of $1,020.38 in favour of Ottawa Victim Services. 

 

The Defense retained Dr. Booth to perform psychological tests on the Defendant, Mr.Daley. Dr. Booth observed that, other than feeling down sometimes and emotionally inhibited, nothing was out of the ordinary from a mental health status. 

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Ms. Korbiel submitted a victim impact statement saying; 

“I do believe that, when this situation occurred in April 2017, that Dustin was in a bad spot in his life and was struggling with a lot of his own issues and grieving his father’s death. I do think there is good in him and I have forgiven him. I do believe that people make mistakes but also deserve a second chance in life and not to be robbed of their life and dignity. I have moved on with my life and have slowly healed over the years. Four years ago, I was in a completely different spot than I am now - physically and emotionally. I do not fear Dustin anymore and don’t think or look at him as a threat to me.”

 

Some mitigating factors were listed, including; no priors, and Mr.Daley pleaded guilty after the preliminary inquiry. Mr. Daley has taken a new directions program and is a devoted son to both of his parents.

 

Conclusion: 

Mr. Daley is in no way allowed to communicate with M. Korbiel under a Court order. As well, the final decision is that Mr. Daley is sentenced to a conditional sentence of 12 months for breach of recognizance and this sentence is consecutive to the sentencing for assault causing bodily harm.

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