Crown: M. Rumble, Office of the Crown Attorney, Newmarket
Defence: Craig Penney, Toronto Domestic Lawyer, Newmarket
¶ 1 CROWN: Your Honour, before we resume with [the complainant], I'd just like to make a few comments. I'm going to invite Your Honour — first of all, I'm going to seek your leave to be able to withdraw both counts of assault in this trial, and if Your Honour is willing to grant me that leave, I just want to put on the record why.
¶ 2 What we have in this case, so far, is evidence from this witness, and I know from reviewing the file, that we have three, now, different versions of these incidents that happened between this couple. So, the night that the police were called, the complainant, both in her 9-1-1 call to the police, and in her under oath statement to the police, says that during this argument involving her boyfriend, and involving the dog, he grabbed her wrist and he pushed her down, and he was grabbing hold of her and that's why she bit him. In relation to the other count on the information, she said that when he came home at five o'clock in the morning, they got into an argument and he pushed her, and then he dragged her by the ankles. And in relation to the count of assault causing bodily harm, when he was a young person, the other information that's before the court, she tells police, in her under oath video-statement, that he pushed her causing her to fall on the hardwood floor and split her head, resulting in two stitches.
¶ 3 Today, what she's testified to under oath, in relation to the first incident with the dog is, basically, he's just trying to help her because she, sort of, inexplicably fell because of her flip-flops; that, in relation to the second alleged incident three weeks earlier, there was absolutely no physical contact that day, and then in relation to the incident where she had to go to the hospital, she fell and it was her own fault. What the accused says is that the night the police came, she ran at him and bit him; that in relation to the incident when he came home at five in the morning, there was no touching at all, and in relation to the time where she had to get two stitches, she, essentially, slipped on a wet floor after he had thrown up. So, we have three different versions of what may have happened on these three occasions.
¶ 4 Now I personally believe her initial reports to the police were true, in the 9-1-1 tape and in the K.G.B. statement. But as Your Honour knows and my learned friend knows, and everyone knows, a criminal trial isn't about what I believe; it's about what I can prove, and what I can prove beyond a reasonable doubt. And, in this case, I think I could have successfully cross-examined this complainant on her prior 9-1-1 tape and on her prior K.G.B. tape, and when I say successful, I mean I think I may have been successful in persuading Your Honour to allow me to cross-examine her. What that would have done, ultimately, is just gone to her credibility and destroyed whatever shreds she may have had left. In terms of bringing an application to admit her prior under oath statement, I have no collaboration to support the allegations of assault that she made, and I would have had a hard time convincing Your Honour that you should accept that version, as opposed to the version she's giving in court, or perhaps, another version that you would hear from the accused.
¶ 5 In my submission, the explanations that this witness gave today for lying to the police were, in my respectful submission, patently ridiculous and offensive, in the sense that it involved also, sort of, trying to blame the police, essentially, for lying to them at the time. So, for all of those reasons, Your Honour, I'm going to ask for your leave to withdraw these charges, because I don't feel that I have a reasonable prospect of conviction. I felt coming into this trial today, that the defendant, Mr. Johnson, was properly charged, we certainly had reasonable grounds to charge him with assault, there was a reasonable prospect of conviction coming into the trial today, but, given the evidence we've heard so far, that prospect of conviction no longer exists. I would ask that the second information, also, be marked withdrawn for the same reasons.
¶ 6 THE COURT: All right. I do not need to hear any submissions from you, unless you want to make any.
¶ 7 MR PENNEY: My friend has the right to withdraw the second information, the youth one, but not necessarily the first. She has to seek Your Honour's leave. I would prefer that that be dismissed. He's been arraigned on it, so I would ask Your Honour to consider that.
[At this time, both counsel made submissions.]
¶ 8 THE COURT: Well, I have heard the submissions of both counsel. Ms. Rumble has made an application that I permit the Crown to withdraw the charges. I have heard an arraignment; there has been a plea of not guilty; there has been evidence called on the matter. It would be my preference to dismiss the charges, and if there is nothing else Ms Rumble would prefer to do, so I am going to dismiss the charges against Mr. J. Thank you.
