City: Oshawa, Ontario
Our Client: Mr. H.
Complainant: Mrs. H. & Durham Regional Police Service
Charge(s): Assault (domestic)
Lawyer: Lavinia Inbar
Background: Mr. and Mrs. H. were married and had a five-year-old daughter. On a Saturday night they had a heated conversation which led to Mrs. H. leaving and staying overnight at a friend’s house. On Sunday, when Mrs. H. got home, the argument flared up again and as it progressed, Mr. H. got upset and threw something. Mrs. H. said that it was a glass and that it broke near her feet. Mr. H. said that it was a plastic butter container which landed near the stairs. After that Mrs. H. decided to leave with their daughter. Mr. H. said that did not want his wife and daughter to leave. He said that he wanted to have a discussion with his wife, without the presence of their daughter. Mrs. H. said that her husband grabbed her arm. She said that he applied enough pressure to her arm that it hurt. She said that she did not want to talk to her husband, that she did not consent to being grabbed by the arm and that after her arm was grabbed there was other physical contact between her and her husband. Mr. H. would deny that there was any further physical contact between them. When Mrs. H. went outside after the argument Mr. H. assisted her in leaving the house by putting the car seat in their car and putting their daughter into it. Mrs. H. then left to stay at a friend’s house but returned in the evening. On Monday both parents went to a hospital appointment with the daughter. On Tuesday Mrs. H. asked her husband to leave the house, and he did. He packed a bag and left to stay with a relative. On Friday, Mrs. H. saw a lawyer. After meeting with the lawyer, Mrs. H. called the police and made a complaint about the incident that had occurred on the Sunday.
Goal: The goal was to avoid a criminal conviction. Mr. H. had a record for a previous, similar charge and the Crown was seeking a jail sentence for him. Additionally, at the time of trial the couple had outstanding issues in family court. Another criminal conviction would likely negatively affect the outcome of the family law matters for Mr. H., most significantly with regard to the issue of his access to his daughter.
Strategy: This would be a classic “he-said-she-said” case. Therefore, the court would be applying the rules from what is sometimes known as “WD,” after the Supreme Court of Canada case R. v. W. (D.), which sets out the approach the court is to take with respect to assessing credibility. In accordance with that approach, we would construct a believable narrative out of Mr. H.’s version of the events and raise a reasonable doubt about the allegations against him. We would do this by having Mr. H. testify and by cross-examining Mrs. H. We would attack the Crown’s evidence to attempt to thwart it from proving its case beyond a reasonable doubt.
Verdict: We were successful in raising a reasonable doubt in respect of Mrs. H.’s allegations. Mr. H. was acquitted.