Transcript

R. v. [REDACTED], [2017] O.J. No. 1417

 

Ontario Judgments


Ontario Superior Court of Justice
Brampton, Ontario
[REDACTED] J.
Heard: February 16, 17, 21 and 22, 2017.
Judgment: March 17, 2017.
Court File No.: CR-16 -1596


Between Her Majesty the Queen, and [REDACTED]


(33 paras.)


 

Counsel

[REDACTED], for the Crown.

[REDACTED], for the defence.


REASONS FOR JUDGMENT

 

[REDACTED] J.

 

1   The Peel Regional Police Force charged Mr. [REDACTED] on June 15, 2015 with unlawfully committing an aggravated assault on [REDACTED], contrary to s. 268(1) of the Criminal Code of Canada (the "Code"). Following a four-day trial, I am left to decide whether on the totality of evidence that I accept, the Crown has proven its case against Mr. [REDACTED] beyond a reasonable doubt.

 

SUMMARY OF THE FACTS

2  During the evening of June 15, 2015, Mr. [REDACTED] and his wife, [REDACTED] , were watching an NBA basketball game in their bedroom on the third floor of their dwelling. At some point, either during the game or after, Mr. [REDACTED] went to the ensuite washroom and discovered that money in his safe was missing. He became upset and confronted his wife. Suspicion fell on Ms. [REDACTED]’s son [REDACTED], who had taken money from the safe in the past. Mr. [REDACTED] continued quarrelling about the missing money to a point where Ms. [REDACTED] left the room and proceeded to a lower level of the home. She asked her daughter [REDACTED] to accompany her to a local Tim Hortons restaurant but [REDACTED] declined. Ms. [REDACTED] proceeded outside and was later joined by her neighbour, Ms. [REDACTED], and then by her son [REDACTED].

3  Meanwhile, Mr. [REDACTED] continued his ranting upstairs. At one point, he threw the safe out of the bedroom window. It landed on a car which was jointly owned by Ms. [REDACTED] and himself.

4  Thereupon, [REDACTED], who is approximately 6' 4" tall and at least 200 pounds, ran inside the home and up to Mr. [REDACTED]'s bedroom, followed by Ms. [REDACTED] and Ms. [REDACTED]. [REDACTED] entered the bedroom and a physical altercation commenced between Mr. [REDACTED] and [REDACTED].

5  The evidence diverged significantly on what happened in the room. Ms. [REDACTED] testified that both she and Ms. [REDACTED] entered the room. Ms. [REDACTED] testified that she screamed repeatedly at her son, who was pummelling Mr. [REDACTED], to stop or else he would go to jail. She testified that with the assistance of Ms. [REDACTED], she got [REDACTED] off Mr. [REDACTED] and had [REDACTED] go downstairs. Mr. [REDACTED] was flailing his arms. Ms. [REDACTED] did not see either Mr. [REDACTED] or [REDACTED] with any weapon.

6  Mr. [REDACTED] denied seeing any person other than [REDACTED] enter the room, including either Ms. [REDACTED] or Ms. [REDACTED]. Mr. [REDACTED] vehemently denied stabbing Ms. [REDACTED]. Mr. [REDACTED] testified that [REDACTED] cut him with an unknown object in his rib area.

7  Ms. [REDACTED] , on the other hand, testified that she entered the room and, with one hand, grabbed [REDACTED] off Mr. t and [REDACTED] literally flung [REDACTED] outside the bedroom. As she proceeded to leave the room, she felt a thump in her upper back. The only other person in the room at that point was Mr. [REDACTED]. When she arrived downstairs she noticed blood on her cellphone. Someone told her that there was blood on her back.

8  Ms. [REDACTED] was taken to the hospital where it was discovered that she had two puncture wounds, one of which required surgery. Ms. [REDACTED] spent four days at the hospital. Fortunately, she has fully recovered from her injuries.

ANALYSIS

9  The outcome of this case turns on the issue of credibility and the analytical framework set out by the Supreme Court of Canada in R. v. W.(D.)[1991] 1 S.C.R. 742. The test for determining whether the Crown has proven Mr. [REDACTED]'s guilt beyond a reasonable doubt is as follows:

  • First, if I believe the evidence of the accused, I must acquit him;

 

  • Second, if I do not believe the testimony of the accused, but I am left in a reasonable doubt by it, I must acquit;

 

  • Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

 

 

10  Although I am not obliged to do so, I will commence my analysis with a review of Mr. [REDACTED]'s evidence. He testified that he was attacked in his bedroom by [REDACTED].

11  There is evidence to corroborate this part of his testimony. Ms. [REDACTED] testified that after the safe fell on the car, [REDACTED] "flew" up the stairs. Ms. [REDACTED] said more or less the same thing.

12  The Crown seems to suggest that Mr. [REDACTED] may have started the physical altercation. The Crown's basis for this suggestion is because Mr. [REDACTED] allegedly told an officer that he grabbed [REDACTED] by the neck. Mr. [REDACTED] disputes this. Neither Ms. [REDACTED] nor Ms. [REDACTED] testified that they saw this. [REDACTED] did not testify. I am unable to find that Mr. [REDACTED] started the physical altercation with [REDACTED]. To the contrary, I find as a fact that the enraged [REDACTED] ran up the stairs to the third floor, barged into Mr. [REDACTED]'s room and started the fight.

13  Mr. [REDACTED] testified that [REDACTED] punched him in the face causing him to fall backwards onto his bed and then onto the floor. Throughout the fight, [REDACTED] was on top of him raining blows on him. Mr. [REDACTED] flailed his hands at [REDACTED] in apparent self-defence.

14  There are three reasons why I do not reject Mr. [REDACTED]'s account of the altercation up to this point. First, even Ms. [REDACTED] testified that she pulled [REDACTED] off of Mr. [REDACTED] and that [REDACTED] was on top of him. Second, Ms. [REDACTED] testified that when she entered the room, she saw her son strike Mr. [REDACTED], who fell onto the bed and then onto the floor. Ms. [REDACTED] further testified that when she removed [REDACTED] from Mr. [REDACTED], [REDACTED] was stooping over Mr. [REDACTED]'s head, striking him repeatedly. While I do have some concerns about Ms. [REDACTED]’s testimony, which I will address, her evidence, to a point, corroborates that of Mr. [REDACTED] regarding how the fight started.

15  Third, Mr. [REDACTED] suffered a bloodied and swollen left eye, a cut on the left side of his face and numerous abrasions on his arm, rib area and leg. He did not have these injuries before the confrontation with [REDACTED]. There is no evidence that the injuries were self-inflicted. This evidence does not prove that [REDACTED] started the fight. However, it is consistent with the evidence that [REDACTED] attacked Mr. [REDACTED] in his bedroom.

16  Mr. [REDACTED] denied stabbing Ms. [REDACTED] in the back. He also denied that he had a weapon that evening. His evidence about not having a weapon is corroborated by both Ms. [REDACTED] and Ms. [REDACTED] testimony that they did not see Mr. [REDACTED] with a weapon. Neither did they see [REDACTED] with one.

17  However, there is direct and circumstantial evidence that, at some point during the altercation, [REDACTED] had a weapon. Ms. [REDACTED] testified that before he ran up the stairs to confront Mr. [REDACTED], [REDACTED] broke a twelve-inch stick across his thigh and held a piece of a stick in his hand when he ran upstairs. Second, Mr. [REDACTED] suffered what appears to be a cut on the left side of his face. This injury appears to have been inflicted with a sharp object. There is no evidence that the injury was self-inflicted. The only other person who could have caused this injury is [REDACTED].

18  Mr. [REDACTED] testified that as far as he was aware, no one else entered the room. I do not accept Mr. [REDACTED]'s testimony to that effect, although I acknowledge that an altercation of this sort would be chaotic. Mr. [REDACTED] would have been aware of Ms. [REDACTED]'s presence, given that she is 5' 11", approximately 200 lbs and, if her testimony is believed, Ms. [REDACTED] was shouting to [REDACTED] that he would go to jail if he continued the assault.

19  The Crown submits that I should find that Mr. [REDACTED]'s testimony is unworthy of belief and incapable of raising a reasonable doubt.

20  I agree with the Crown that Mr. [REDACTED]'s testimony raises credibility concerns. First, he presented as a person who is very self-absorbed. He portrayed himself as a Good Samaritan whose efforts to uplift Ms. [REDACTED] and her two children were unappreciated by them. He described how he tried to obtain opportunities for [REDACTED] who, despite those efforts, disrespected him and stole his money. He appeared to exaggerate the extent of his injuries: he testified that [REDACTED] cut him in the rib area, but photographs of the injury merely show that he suffered bruising in the area. He also testified that when he went to the washroom following the fight, a piece of his cheek fell into the sink and that he managed to put it back on his face. I note that photographs show that Mr. [REDACTED]'s face was indeed bloodied.

21  Additionally, the Crown urged me to consider the apparent inconsistencies between statements made by Mr. [REDACTED]  to the police before trial and his testimony at trial. For example, Mr. [REDACTED] apparently told the police that he and [REDACTED] started to grab one another outside the bedroom, but he maintained in cross-examination that he did not mean that the fight started in that area. Mr. [REDACTED] also told the police that Ms. [REDACTED] never came up the stairs. However, Mr. [REDACTED] testified that he heard footsteps when he lay on the floor but did not know who it was who approached the room.

22  While Mr. [REDACTED]'s demeanour, the exaggeration and embellishments in his testimony, and the inconsistencies between his statements to the police and testimony raise concerns about his credibility, I cannot dismiss his testimony in its entirety as being incapable of raising a reasonable doubt in the Crown's case.

23  Neither can I dismiss Ms. [REDACTED]'s testimony as being entirely unworthy of belief. Essentially, Ms. [REDACTED] denied that only Ms. [REDACTED] entered the room and extricated her son [REDACTED] off of Mr. [REDACTED]. To the contrary, Ms. [REDACTED] testified that she also entered the room in an effort to stop her son from attacking Mr. [REDACTED]. She testified that she was the one who succeeded in doing so, even to a point of grabbing the testicles of both men. Mr. [REDACTED], however, denied that anyone grabbed his testicles.

24  I am inclined to accept Ms. [REDACTED]’s testimony that she entered the bedroom in an attempt to stop her son from assaulting Mr. [REDACTED] for two reasons. First, she was concerned about her son being arrested for assaulting her husband. Indeed, Mr. [REDACTED] later complained to the police that she favoured her children over him. Furthermore, following the incident, she left her husband in the room and remained downstairs with her son. Finally, she told the police later that evening that Mr. [REDACTED] had grabbed her arm and that she wanted them to remove him from the house. Ms. [REDACTED] did enter the room and removed [REDACTED] from Mr. [REDACTED].

25  Second, I had occasion to observe and listen to Ms. [REDACTED] while she testified. She is not a shrinking violet. She has a vocabulary which is as colourful as that of the proverbial sailor. By her own admission, she is both loud and abrasive. She is 5'11" and approximately 200 pounds. It is difficult, nigh impossible, to believe that she waited outside the bedroom while the diminutive and slightly built Ms. [REDACTED] went into the room and, with great strength, literally flung the 6' 4" inch tall Dhillon, who weighed in excess of 200 pounds, out of the room.

26  This takes me to Ms. [REDACTED]'s testimony. Even if I reject the evidence of Mr. [REDACTED] and Ms. [REDACTED] and find that the defence evidence is incapable of raising a reasonable doubt, I must be satisfied of Mr. [REDACTED]'s guilt beyond a reasonable doubt based on the evidence that I accept. I am not persuaded that the evidence of Ms. [REDACTED] rises to that standard of proof for the following reasons.

27  Ms. [REDACTED] testified that after the safe fell on the car "all hell broke loose". She testified that [REDACTED] "flew inside the house" followed by his mother and herself. All three ended up on the top floor of the house, where Ms. [REDACTED] saw Mr. [REDACTED] and [REDACTED] "in a tussle". They were wrestling on the ground. The lights in the room were on. Ms. [REDACTED] saw someone bleeding. She did not recall seeing Ms. [REDACTED] in the bedroom. [REDACTED] had a nick on his eye. She did not know if Mr. [REDACTED] was injured.

28  Ms. [REDACTED] then grabbed [REDACTED] on his left with her left hand and "flung" him away from the bed "through the bedroom door". As she left, she felt a thump in her back. On the stairs, she saw blood on her cellphone. When defence counsel put to her that [REDACTED] could have been the one who stabbed her, she disagreed. She testified that he would have admitted that he had done so.

29  I have expressed my reservations about Ms. [REDACTED]'s testimony regarding how she got [REDACTED] out of the bedroom. My skepticism is even greater with the added information that she managed to do so with one hand. Ms. [REDACTED] testified that it was not difficult to get [REDACTED] out of the room, thereby implying that he went gently out of the room. I am skeptical that this was the case, since he was in the process of striking Mr. [REDACTED] when Ms. [REDACTED] entered the room. I am also skeptical about her testimony that she did not see any injury on Mr. [REDACTED], despite testifying that the lights in the bedroom were on (a fact that is disputed by Ms. [REDACTED] and Mr. [REDACTED]).

30  I find as a fact that Ms. [REDACTED] was stabbed in Mr. [REDACTED]'s bedroom. On Ms. [REDACTED]'s version of events, the lights in the bedroom were on. Mr. [REDACTED] would have had no reason to stab Ms. [REDACTED] because on her testimony, she pulled [REDACTED] off of him and, furthermore, that Mr. [REDACTED] and herself were friends. Indeed, they had enjoyed a glass of wine a week before in Mr. [REDACTED]'s garage. Neither Ms. [REDACTED] nor Ms. [REDACTED] saw an object in Mr. [REDACTED]'s hand.

31  The police recovered a bloodied corkscrew and a pair of scissors in the bedroom. The blood on the corkscrew did not come from Ms. [REDACTED]. The blood found on the scissors was insufficient for DNA analysis. At some point during the altercation, [REDACTED] cut Mr. [REDACTED] on his left cheek with an unknown object.

32  The Crown suggests that Mr. [REDACTED]’s guilt is the only reasonable inference I can draw from Ms. [REDACTED]'s evidence. In my view, another reasonable inference which can also be drawn from the totality of the evidence I accept, is that [REDACTED] may have caused Ms. [REDACTED]'s injuries.

33  For this reason, I find that the Crown has failed to prove Mr. [REDACTED]'s guilt beyond a reasonable doubt. As a result, I have no other option but to find him not guilty.

[REDACTED] J.