CITATION: R. v. [REDACTED], 2011 ONSC 6781

COURT FILE NO.:11-30000095

DATE: 20111116

ONTARIO

SUPERIOR COURT OF JUSTICE

Kelly J.

reasons for Decision

The Charges Before the Court

[1] Arsim [REDACTED] is charged with four offences arising out of a fight at a bar on August 9, 2008. Those charges are as follows:

(1) Aggravated assault contrary to s. 268 of the Criminal Code, R.S.C., 1985, c. C-46;

(2) Possession of a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code;

(3) Assault with a weapon (beer bottle) contrary to s. 267(a) of the Criminal Code; and

(4) Assault with a weapon (knife) contrary to s. 267(a) of the Criminal Code.

[2] [REDACTED] plead guilty on the first day of trial to failing to comply with his recognizance contrary to s. 145(3) of the Criminal Code. On the night in question he was in breach of a condition of a prior release that he be in his place of residence between the hours of 10:00 p.m. and 6:00 a.m. seven days a week.

The Issues to be Decided

[3] There is no doubt that there was a fight involving [REDACTED] on the evening of August 9, 2008 in the Tumber Café located at 1375 Danforth Road in the City of Toronto. There is also no doubt that [REDACTED] suffered injuries to his back, face, knee and foot during this altercation.

[4] The issue that I must decide is whether Crown Counsel has proven beyond a reasonable doubt that it was [REDACTED] who possessed a knife, used the knife and the beer bottle during the altercation and caused the injuries to [REDACTED].

[5] Since [REDACTED] testified, I must consider the principles summarized in the three-step analysis set out by the Supreme Court of Canada in R. v. W. (D.) [D.W.], 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, as follows:

(i) if the accused’s exculpatory account is positively believed, then the trier must acquit;

(ii) if the accused’s exculpatory account is not positively believed but, considered together with the other evidence, it raises a reasonable doubt, then the trier must acquit;

(iii) even if the accused’s exculpatory account is disbelieved and does not raise a reasonable doubt, the trier must still apply the traditional burden of proof by considering all of the evidence and determining whether the Crown has proven guilt beyond a reasonable doubt.

[6] For the reasons set out below, I am not satisfied that Crown Counsel has proven the guilt of [REDACTED] beyond a reasonable doubt on any of the four offences charged. As such, the charges are dismissed and [REDACTED] is acquitted.

[7] I will deal with the evidence of [REDACTED] and explain why I believe it and therefore must acquit him of the charges before the Court.

The Evidence of [REDACTED]

[8] It is my view that [REDACTED] testified in a straightforward manner. Despite a skillful cross-examination by Crown Counsel, he was not shown to be an unreliable witness.

[9] [REDACTED] testified that he was a regular patron at the Tumber Café and had been going there for years. He had seen [REDACTED] on prior occasions and greeted him at the café on the night in question.

[10] [REDACTED] also knew [REDACTED]’s former spouse, [REDACTED]. She worked part time at the Tumber Café and had served him on occasion. [REDACTED] had been at the Tumber Café two nights prior to August 9, 2008. He was there with his friend Eugen [REDACTED].

[11] [REDACTED] testified that on August 7, 2008, [REDACTED] asked for the phone number of [REDACTED] and she declined. [REDACTED] said that [REDACTED] started calling [REDACTED] a "fat bitch" and other inappropriate things. [REDACTED] testified that [REDACTED] wanted to call the police but that he intervened and convinced her not to do so.

[12] [REDACTED] testified that he and [REDACTED] returned to the Tumber Café on the night in question. They arrived at approximately 10:30 p.m. They sat at the bar and they ordered drinks. He had a vodka and cranberry juice. [REDACTED] had a beer.

[13] [REDACTED] testified that he went to say hello to the other patrons that were in the bar. About a half hour after he arrived, [REDACTED] and [REDACTED] did as well. [REDACTED] said hello to [REDACTED].

[14] [REDACTED] testified that [REDACTED] pointed his finger at him and [REDACTED]. He called [REDACTED] over to him. [REDACTED] asked [REDACTED] why he was cursing at [REDACTED] and calling her a fat bitch. [REDACTED] responded asking [REDACTED] what his problem was with him. [REDACTED] said words to the effect: "Do you know who you are talking to? I am Hell’s Angels".

[15] [REDACTED] testified that he did not know who started the fight but that he did observe [REDACTED] pick up a chair. He was not able to hit [REDACTED] with the chair so he picked up a beer bottle and hit him over the head. [REDACTED] fell over a table and then to the ground. [REDACTED] then threw himself on [REDACTED]. A struggle ensued.

[16] [REDACTED] testified that he started towards the door to go outside. While he was doing this, he was yelling at them to "stop this". He did not see what was happening on the ground. He denies that he participated in the fight at all: he did not possess or use the knife and he did not possess or use the beer bottle as a weapon. Put simply, [REDACTED] denies causing any injuries to [REDACTED] because he was not involved in the fight.

[17] [REDACTED] says that he left the scene promptly because he was having problems with immigration at the time and he knew that he was in breach of his recognizance by being outside of his home at this hour. He testified that he and [REDACTED] drove to his girlfriend’s home. It was there that he noticed that his friend was bleeding from his head and he took him to the hospital. [REDACTED] received 12 stitches in his head that resulted from the altercation with [REDACTED].

The Evidence of [REDACTED] Generally

[18] As I have stated above, I found [REDACTED] to be a witness who gave his evidence in a candid and straightforward manner. His credibility was not affected during cross-examination. Some of the reasons why I accept his evidence as truthful are as follows:

a. [REDACTED] candidly admitted that [REDACTED] had a disagreement with [REDACTED] after he asked for [REDACTED]’s phone number and she refused to give it. That is when [REDACTED] insulted [REDACTED] by calling her names. It is this dispute which gave impetus to the fight between [REDACTED] and [REDACTED]. [REDACTED] had nothing to do with the insulting behavior of his friend and that is why he says that he did not get involved in the fight. This, to me, seems logical. It was [REDACTED]’s behavior that was in question and not [REDACTED]’s. He was a regular at the Tumber Café so it is unlikely that he would get into a fight with another regular: [REDACTED].

b. Although it would appear that [REDACTED] was prepared to intervene in the dispute between [REDACTED] and [REDACTED] when words were exchanged, he was not prepared to intervene in the dispute between [REDACTED] and [REDACTED] when punches were exchanged. [REDACTED] did not want [REDACTED] to call the police after the verbal altercation because he was worried about his immigration problem and the fact that he was in breach of his recognizance. It is logical that [REDACTED] would not likely have participated in the physical dispute with [REDACTED] as the police, no doubt, might be called in that situation – something [REDACTED] clearly did not want to happen as it would lead to bigger problems for him.

c. [REDACTED] testified that he saw [REDACTED] at the cafe and that she served he and [REDACTED] their drinks. She then left for approximately a half hour and returned to the cafe. Although [REDACTED] was never asked if she served [REDACTED] his drink, [REDACTED]’s evidence is consistent with that of [REDACTED] who said that she left the café for a period of time and then returned.

d. [REDACTED] and [REDACTED] (the bartender working that night) both testified that they saw [REDACTED] slap [REDACTED] on the face. [REDACTED] denies that he saw this action. There was no need for [REDACTED] to deny observing this slapping as such conduct did not implicate him in any way. This, in my view, supports the fact that [REDACTED] was telling the Court about the occurrence as he saw it. It would have been very easy for him to say that he observed such an action to make his account consistent with the others: he did not.

e. [REDACTED] denies that he saw [REDACTED] punch [REDACTED] in the face which [REDACTED] readily admitted. Again, there was no reason for [REDACTED] to deny that he saw such a punch. He was not implicated by such an assault and it might have been to his benefit to say that he did see the punch. He did not, which, again leads me to the conclusion that he was telling the truth about what he saw on the night in question and the fact that he was not involved in the assault on [REDACTED].

f. I also accept that the reason that [REDACTED] did not remain at the Tumber Café to speak to the police or call the police himself was because he was in breach of his recognizance at the time. This was clear from the fact that [REDACTED] plead guilty to failing to comply with his recognizance at the commencement of trial. He was in breach of his curfew condition on August 9, 2009.

[19] I will now deal with the evidence of the knife and the beer bottle.

The Use of the Beer Bottle

[20] [REDACTED] also denies that he saw [REDACTED] hit [REDACTED] over the head with a beer bottle. Again, there was no need for [REDACTED] to deny seeing this as he was not implicated by such an assault by [REDACTED]. This, again, leads me to conclude that [REDACTED] was telling the truth about his memory of the occurrence.

[21] [REDACTED] denies that he broke a beer bottle over [REDACTED]’s head which is somewhat consistent with the evidence of [REDACTED]. [REDACTED] testified that he is not positive that it was [REDACTED] who hit him with the beer bottle but that he is "quite sure". He knows that it was not [REDACTED] who hit him on the head with the beer bottle.

[22] [REDACTED] says that it was [REDACTED] who broke the beer bottle over the head of [REDACTED] and that [REDACTED] was hit with the beer bottle from behind. I accept the evidence of [REDACTED] on this issue.

[23] As I have stated above, [REDACTED] was standing right in front of [REDACTED] when the assault with the beer bottle occurred and he had the best view of the occurrence. He says that he was hit from the front and this is consistent with the injuries that he suffered from the broken beer bottle. Further, it was [REDACTED] who had the issue with [REDACTED] and was therefore more likely to use the beer bottle as described by [REDACTED].

[24] Due to the inconsistencies discussed above, I simply cannot rely upon the evidence of [REDACTED] or the other witnesses in order to convict [REDACTED] of the offence involving the beer bottle before the Court. There was one occurrence, but many different versions of how the injuries were inflicted. I am simply not sure that it was [REDACTED] who used the beer bottle during the altercation, but I am even less sure that a knife was involved at all.

The Evidence of the Knife

[25] [REDACTED] denies that he had a knife in his hand and used it during the assault. I accept such evidence. The only other evidence of the existence of this knife was provided by [REDACTED] and [REDACTED]. I find that neither of their evidence is reliable on this issue.

[26] When [REDACTED] testified in chief, he was clear and concise. There was no doubt in his mind that [REDACTED] wielded the knife that put two cuts in his back and slashed other parts of his body. He specifically said: "the accused is the man who had the knife".

[27] [REDACTED] was even clearer during the first few questions during cross-examination. It was suggested to [REDACTED] that he never actually saw a knife during the altercation to which he responded: "I did when I was on the ground." He was certain that he saw the knife. However, the certainty of that observation was shaken when Counsel for [REDACTED] probed further.

[28] Counsel showed [REDACTED] his evidence from the preliminary hearing and his statement, under oath, to police. In both of those instances, [REDACTED] denied that he saw the knife, at all, let alone in the hands of [REDACTED].

[29] At the preliminary hearing, [REDACTED] denied even seeing the knife: "I was stabbed in the back. … I don’t have eyes back there." He further denied that he even saw the knife when he was on the ground, on his back and looking up. [REDACTED] explained such an inconsistency about his ability to observe the knife by saying words to the effect of: "Did I see the knife exactly? No." And when he was advised that he had said that he did not see the knife at the preliminary hearing, he said: "Fair enough. It is in the transcript."

[30] In his statement to the police shortly after the incident, [REDACTED] testified that he was told by someone in the bar that [REDACTED] was stabbing him with a knife. When he was advised that he did not mention seeing the knife to the police during his interview 11 days after the occurrence, [REDACTED] protested: "I am telling the truth now."

[31] But what is the truth? When Counsel for [REDACTED] suggested, in her final question on this issue: "You never saw a knife?" [REDACTED] replied: "I don’t recall."

[32] Based upon the contradictions in [REDACTED]’s evidence, I cannot accept his evidence about [REDACTED] being in possession of the knife during the occurrence and the use of it to stab [REDACTED]. I also find [REDACTED]’s evidence on the issue of the knife to be questionable.

[33] At times in her evidence, [REDACTED] was uncertain as to whether she saw a knife or a pole in the hands of [REDACTED]. At other times [REDACTED] referred to what was in [REDACTED]’s hand as an "item". There is evidence that a portion of a leg of a stool or chair became lose which is consistent with [REDACTED]’s evidence that there was a pole used, or at least accessible during this altercation. [REDACTED] said that despite seeing an "item" in the hand of [REDACTED], she did not see [REDACTED] get stabbed.

[34] While it may be possible that [REDACTED] sustained the injuries from a knife, I cannot rule out that the injuries to his back were caused from broken glass. Almost every witness testified about the existence of broken glass in the area where [REDACTED] lay on the ground after he was hit by the beer bottle and fell to the floor. [REDACTED], himself, testified that there was a lot of glass on the ground and that he was involved in a struggle when he was down there.

[35] Some of the glass was cleaned up by the owner of the bar prior to the arrival of the police. Accordingly, I cannot rule out that glass with blood on it from the back of [REDACTED] was disposed of before the police arrived on scene.

[36] Based upon my analysis of the evidence provided at this trial, I accept, as true, the evidence of [REDACTED] and that he did not wield the knife on the night in question, thereby causing the injuries to [REDACTED].

Conclusion

[37] For the above-mentioned reasons, I accept the exculpatory account of the occurrence provided by [REDACTED]. As such he is acquitted. There is no need for me to consider the other two principles set out in R. v. W. (D.) [D.W.], supra.

[38] In coming to my conclusion that [REDACTED] is not guilty of the offences charged, I must remind myself of the standard of proof required in a criminal case. Specifically, the onus at all times rests with the Crown. The onus is to satisfy me beyond a reasonable doubt as to the essential elements of the offences in question. As stated by the Supreme Court of Canada, this is a standard that lies much closer to absolute certainty than it does to balance of probabilities.

[39] In the circumstances I have acquitted [REDACTED] as the Crown has not met the required onus despite his best efforts to do so, for the reasons set out above.

___________________________

Kelly J.

Released: November 16, 2011

CITATION: R. v. [REDACTED], 2011 ONSC 6781

COURT FILE NO.:

DATE: 20111116

Released: November 16, 2011