ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE MADAM JUSTICE REBECCA SHAMAI
ON JULY 21, 2004, at Toronto.
COUNSEL FOR THE CROWN: MS. H. KEATING
COUNSEL FOR THE ACCUSED: TUSHAR K. PAIN
THE COURT: I am dismissing the charge. The Crown alleges that Ms. Watts was assaulted by George Sheppard, on the night of December 27th, 2002 at about 11:30 at night. The incident was witnessed by an off-duty officer who was coming with a group of about another ten friends along the same sidewalk where Mr. Sheppard and Ms. Watts found themselves in the course of an argument. As Crown suggests, the evidence of that police officer, off-duty in a social situation as she may have been, is undoubtedly of great assistance to the court. The officer is a trained observer and I don’t doubt that her ability to perceive and recount the details of the incident that night, recorded as they were in a fellow officer’s notebook, brings some clarity to this court as to what that officer observed. However, in terms of assessing the entirety of the evidence I have Ms. Feldman, the officer, saying that she saw Mr. Sheppard take a small object which she guessed was a man’s purse. It had a short strap on it and she didn’t describe in great detail the size of it. She says he wound up and hit Ms. Watts in the head with it.
Ms. Watts’ testimony, as both counsel have pointed out, was somewhat difficult. In fact the Crown acknowledges that perhaps in more detail than Ms. Feldman does. It is hard to say just why Ms. Watts had such difficulty in giving her evidence to the court. Through much of her testimony she was shaking to the point where I didn’t think she could safely drink a glass of water. Her answers trailed off many many times. She was offered the opportunity to take a break and I talked with her a couple of times to see whether there might be some way she could gather herself together and answer the questions put to her directly. Nonetheless, her testimony was troubled by her own trouble. She said that she has been ill, although I don’t know what sort of difficulty she’s had. Obviously she has some difficulties and I don’t know just what they are. In the course of her testimony she told the court about her relationship with Mr. Sheppard. It was an intimate relationship. Apparently it was her primary relationship, and for him it was extra-marital, although her understanding of his marital status was unclear. She alluded to other acts of violence which he had committed upon her and to a restraining order. I don’t really know when that would have occurred. I don’t know whether she’s referring to the bail condition which was in place from the start of these proceedings preventing Mr. Sheppard from having contact with her. She refers to many details which raise more questions than they answer for me. She referred to a number of issues which were alive between herself and Mr. Sheppard on that night. One, that she hadn’t seen him over Christmas as she wanted to, and secondly that she had concerns about his driving, and she related details of another incident where he had fallen asleep while they were driving on Eastern Avenue and it caused her great concern. So she was concerned, according to her testimony, about Mr. Sheppard’s driving the car that night when they got out there because she didn’t want him to drive. She does acknowledge the effect that alcohol may have had on her that evening. She said that the alcohol she had consumed that evening left her relaxed, and she says that she had three glasses of wine that evening. She says that she had nothing to drink prior to getting to the Jersey Giant with Mr. Sheppard. She says it got very confusing at the trunk of the car. For some reason she says he was – I guess to assist her with her wish to leave, he was assisting her by reaching in to get her stuff out, and she says she just cannot account for what then happened. She acknowledges that she threw some things and that she didn’t feel safe, and that she was crying hysterically. She said it was violent and getting out of control and ridiculous. She described the assault which she says was committed by Mr. Ward upon her. She says that it was a gesture which he was in the habit of doing towards her forehead. She says that she knows she got “clunked” in the head and she described very specifically an action which she says Mr. Sheppard did that evening and had done in the past; that he used the heel of his hand to hit back against her forehead, and she demonstrated the gesture. However, she also said that he struck her when she bent over to get things out of the trunk.
When asked about why she declined to assist the police, by making a statement on the night of the 27th of December, she said that she was in a state of denial as to what had happened between herself and Mr. Sheppard that day although she says she didn’t think she’d ever be reluctant to help the police. She also was asked whether she recalled telling the police that Mr. Sheppard did not strike her and she said that she recalled reacting in an opposite way, recalling that she had told the police that she and Mr. Sheppardwere fighting and screaming.
Because of the state she was in, as she testified today, it was hard to make sense of some aspects of her testimony. I had the impression that although we took lengthy pauses in the course of her testimony, as she sought to express herself, there were more things that she would have liked to say to the court. I just don’t know what was on her mind. At the conclusion of her testimony in-chief she said that she knew that her demeanour was extreme and distraught on the night in question but again she didn’t finish her thought. She could not explain her having been placed in a police car with handcuffs on. She denies that she was charged herself and she denies punching Mr. Ward in the neck. She states that she had no knowledge of Mr. Sheppard being in Montreal. She believed that he was separated and that he had been married four previous times.
Mr. Sheppard’s testimony was that he is married and that it’s a marriage of approximately 20 years. He says that during the time that he was involved with Ms. Watts he was in a period of separation from his wife. However, he had been in Montreal with his wife and family over the Christmas period, and when he drove back on the 27th he went directly to Ms. Watts’ apartment. Mr. Sheppard says that he is in the television industry and that he met Ms. Watts when she was a dancer at the Zanzibar Club on Yonge Street and that she was most anxious to get out of that work. He says she got herself out but he was able to assist her with some work from time to time in his own business.
He says that when he got to Ms. Watts’ apartment that afternoon she had already been drinking and that the tension was almost immediately high. When he got to her apartment they’d had a few phone calls. He said they were tense phone conversations on the question of where he was at Christmas. Nonetheless, they continued on to the pub in question where he says Ms. Watts had a further seven or eight glasses of red wine, and the argument started to become fairly lively in the bar. He says that he didn’t want a further confrontation so instead of spending the night with her at his own home, he suggested to her that she go home to her own apartment, and went with her to his car to get her things out of the trunk of his car. He says that at that point she began grabbing things and throwing them on the sidewalk.
Mr. Sheppard testified as to having been punched three times in the side of his neck by Ms. Watts. He testifies to his state of mind on the sidewalk. He says that not only was he concerned about Ms. Watts as he had been in the bar but at this point he was somewhat embarrassed to be outdoors with this kind of a melee ensuing about him and people around as well. One of those people turned out to be Constable Feldman, the off-duty officer, whose intervention did calm down the incident. Mr. Sheppard denies hitting her, hitting Ms. Watts with anything, although he acknowledges that in the confusion of things being thrown in and out of the trunk, with Ms. Watts grabbing things and throwing them and yelling, he may have accidentally hit her with something.
The evidence clearly shows three separate versions of an incident; with the officer saying she thought that she saw Mr. Sheppard take aim at Ms. Watts and strike her with a small object which she thought might be a man’s purse; Ms. Watts who states, with some considerable clarity, that Mr. Sheppard struck her in the forehead with the heel of his hand, a gesture which she had come to know from him; and Mr. Sheppard says that he did not hit Ms. Watts with anything, although he can’t exclude the possibility that in the course of things being tosssed in and out of the trunk, and generally being thrown around, that he might have accidentally struck Ms. Watts with something.
The test is of course not simply who of the three do I believe. Mr. Sheppard is in a position where of course he is charged with a criminal offence and the Crown is required to prove beyond reasonable doubt the offence which is alleged against him. In assessing the evidence of the three witnesses, I have to take into account the difficulty which Ms. Watts had in relating her testimony. I also have to take into account the extent of her inebriation on the night of December 27th. Again, resorting to the testimony of Constable Feldman, it is clear from her testimony that Ms. Watts’ conduct was clearly affected by the state of intoxication she was in. I do not accept Ms. Watts’ assertion that she had only had three glasses of wine that evening. Although I know very little of what else might be at work in her state of upset today, I do know that it is not only today and as a result of some illness she suffered she is uneasy in presenting an account of events. On the night of December 27th she was also very much less than straight forward with the police. Indeed, taking her evidence today at its highest, that she would always want to cooperate with police had she understood in the least what had happened on the night in question, and that, for reasons best know to herself, she didn’t give a straight account of what happened, she might well have contacted the police at a later occasion to say this is actually what happened. That did not happen. I have conflicting evidence from her, and perhaps most importantly from an objective point of view I have a significant conflict in the evidence from what Constable Feldman describes as the assault and what Ms. Watts describes as the assault. Both of them describe with considerable clarity very different gestures. Now, again, I have considered whether there could be just some question of perspective that Constable Feldman saw the same thing that occurred to Ms. Watts which she described to the Court but saw it from a different angle or something like this, but both of them were very clear and both described very different incidents. So that gives me some concerns on the face of it, just on the face of the Crown’s case, both with regard to the conflict as to the essential aspect of the assault and also generally with regard in the particulars I have described I have a general concern as to the extent to which Ms. Watts’ testimony is reliable.
Mr. Sheppard’s testimony – I think Crown used the word unflappable. He does, I suppose, make one wonder how someone can present such an impermeable front. Nonetheless, his testimony does allow for the possibility that he did have some contact with Ms. Watts of the sort that in my understanding of the case the officer described. I am unable to conclude on all of the evidence, however, that he intended to inflict a blow upon Ms. Watts on the night in question and I am dismissing the charge.