ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
Charge: Assault C.C.C.
Before The Honourable Justice XXXX
heard at the Courthouse, XXX, Ontario
on Monday, May XX, 20XX
REASONS FOR JUDGMENT
APPEARANCES: XXXX Counsel for the Crown
T. Pain Counsel for Willy Chu
The Court (Orally):
Mr. Willy Chu is charged with assaulting his wife, now his former wife, Kim Dy.
The incident allegedly took place on September the 25th, 2007 in the matrimonial home. Ms. Dy testified that on that day she and the defendant were living together and they had a verbal argument. This verbal argument escalated into physical contact. The result of the physical contact was that the defendant pulled Ms. Dy’s hair, he hit her on the right side of her face and he kicked her in her ribs. The kick to the ribs was such a strong blow that she was unable to finish her dinner. The slap to her face caused a bruise. She described his actions as consisting of several slaps with an open hand. She described the pulling of the hair as grabbing it by the scalp. That also caused her some pain. She described the altercation as lasting more than five minutes.
She gave the court some background as to the circumstances leading up to the altercation. She indicated that there was a complaint about his sister and his sister’s behaviour and attitude towards her. Ms. Dy also complained about the defendant’s control of her. She said that after he attacked her, she was thinking of defending herself but Mr. Chu is a much stronger person than she is, so she was afraid to retaliate. She said she did not call the police because she was hoping that his attitude would change. She was asked as to how did the incident end and she said that Mr. Chu left the premises and there was no other altercation that day. Then she went on to describe the pain from the kick to her ribs and she said it was very hard pain, she could not breathe and her employer advised her to see a doctor. The result was that she went to a walk-in clinic and had some X-rays. The doctor told her to take some anti-inflammatory drugs and so she ended up taking Advil.
Ms. Dy was cross-examined extensively by defence counsel. It came out in cross-examination that there were other issues surrounding the altercation on September the 25th. These issues involved a confrontation between Ms. Dy and Mr. Chu’s sister, whereby the sister accused her of using the phone more than was necessary. Ms. Dy had complained to the defendant and the defendant refused to stand up for her. She said she told him she needed her own phone. As a result, they went to Rogers but did not purchase a cell phone because it was expensive. She agreed with defence counsel that although she admitted today that she did strike the defendant, she did not make any mention of that when she spoke to the police. She said, however, that when she hit the defendant she did so in self-defence because the defendant was trying to get her out of the house. She recalled that the defendant left the house eventually for some time. He then came back and brought some medication for her ribs. She was asked by defence counsel whether they hugged and apologized to each other. She said she remembered they hugged but she did not remember either of them apologizing to each other. There were some photographs shown to her, which she identified as being the defendant’s legs but she did not understand or have any knowledge as to how the injuries to his legs got there. The defendant testified in his own defence. His version of events substantially corroborated the version given by Ms. Dy. The difference was, who did what, the extent of what Mr. Chu did and how it happened. It was clear when Ms. Dy gave her evidence that Mr. Chu was the aggressor and that the only time she fought back was when he was trying to evict her from the premises. When Mr. Chu testified, however, he gave a detailed account of what took place. His detailed account commenced from the time they sat in the living room, on the couch, watching television and eating ‘hotpot’. He described the argument that commenced, the subject of the argument and what led to physical contact between them. At one point – and I probably may have misunderstood – it seems to me that Mr. Chu did admit that after Ms. Dy said some very hurtful things to him, he slapped her, and it was in retaliation for that slap that Ms. Dy then responded in kind. It may very well be that when Mr. Chu slapped her, that was an assault in itself but that is not an argument before me.
I see the situation as being one in which the two parties sat down to have dinner and during the course of their dinner there was an argument which became very heated and escalated into contact between them. I accept the explanation given by Mr. Chu with respect to how the injuries to Ms. Dy occurred. Mr. Chu made reference to the fact that he was on the sofa at the time he kicked Ms. Dy in the ribs. My understanding of that evidence is that he was in a position on his back, he had held his arm in front of him and had raised his foot. It was while his foot was raised that Ms. Dy was coming towards him and made contact with his foot. That may or may not have been the way in which the injury to her ribs occurred, but in my view the explanation given by Mr. Chu is an explanation that could reasonably be true. In assessing the evidence of the two witnesses, I must say that when Ms. Dy testified in-chief there was no hint or indication that she at any time struck Mr. Chu. It was clear that she would not have done so because he was much bigger than her and she was afraid of the consequences had she struck him. In cross-examination, however, it came out that she did retaliate against him; she did, even though it was in self-defence. So in my view there was an inconsistency in her evidence. When Mr. Chu testified, however, I found that he gave his evidence in a straightforward and forthright manner. I do not fault Ms. Dy for pausing or hesitating in her responses. I do not hold that against her. But with Mr. Chu there were no pauses or hesitation in his responses. He was very straightforward to every question put to him, not only by his own lawyer but by the Crown prosecutor, and his explanation as to the physical contact between him and his ex-wife is, in my view, an explanation that could reasonably be true.
I am satisfied that regardless as to who started the altercation, that at a certain point the altercation became a consensual fight between Mr. Chu and his wife. I am satisfied that Mr. Chu did not use more force than necessary in the circumstances. I am satisfied that the injury that she suffered to her ribs, which may have been something of concern, happened during the course of the fight and it was not as if, Mr. Chu stood up and deliberately kicked Ms. Dy with his foot. I am satisfied that it happened during the course of the altercation and there is stated jurisprudence that when there is a consensual fight between parties, one party ought not to be expected to measure blow for blow or the amount of force that he or she uses against the other. Both counsel have made reference to the principles in Regina v.W.D. and I find those principles are appropriate to the case at bar. I will refer to them as this is a case where the W. (D.) analysis is important. In quoting from Regina v. W.(D.), the court says as follows, ‘In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.’ The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically the trial judge is required to instruct the jury that they must acquit the accused in two situations: first, if they believe the accused, second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt, after considering the accused’s evidence in the context of the evidence as a whole. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge but on any re-charge. A trial judge might well instruct the jury on the question of credibility along these lines: first, if you believe the evidence of the accused, obviously you must acquit; second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft-repeated error which appears in the re-charge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle. The first principle outlined clearly states, first, if you believe the evidence of the accused obviously you must acquit.
In the case at bar I am satisfied that the accused is a credible witness and accordingly I find him not guilty of the charge.