Ontario Criminal


Assault

COMMON ASSAULT
Conviction for assault,

unlawful confinement and breach of recognizance upheld on appeal

Accused appealed convictions for assault, unlawful confinement, and breach of recognizance. Accused and complainant were in intimate relationship from 2001 to 2009. Complainant testified that, during argument, accused grabbed her by throat and threw her down on couch, striking her head on ashtray. Complainant testified that accused prevented her from leaving her apartment to go to hospital. In weeks after incident, complainant gave second statement to police, retracting her allegations against accused. At trial, complainant recanted her earlier recantations, claiming that she made them at accused’s request and because he threatened to distribute explicit photographs of her. Trial judge accepted complainant’s evidence that she had been in “abusive relationship” with accused. Trial judge accepted that, in making allegations against accused, complainant might have been motivated by jealousy arising from recent reappearance of one accused’s previous girlfriend. Trial judge held that Crown had demonstrated that there was direct touching and application of force to complainant’s neck. In subsequent trial on other charges, complainant gave yet another account of incident, where she made no allegation of being choked, nor did she suggest she had been forcibly confined. In subsequent trial, Crown successfully brought application to admit complainant’s prior statements and her testimony at current trial for truth of their contents. Accused was acquitted of charges at subsequent trial, partly due to complainant’s contradictory and confused testimony. Accused argued that verdict was unreasonable. Appeal dismissed. Despite highly problematic nature of complainant’s testimony, there was basis in evidence upon which trial judge could have convicted. Court was not persuaded that trial judge’s ultimate conclusion was tainted by his “abusive relationship” observation. Although other judges may have found inconsistencies in complainant’s evidence to be fatal, court could not say that trial judge erred in approaching evidence in manner that he did.

R. v. Honigan (Mar. 19, 2015, Ont. S.C.J., Trotter J., File No. SCA-13-73-4) 120 W.C.B. (2d) 15.

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