Ontario Court of Justice

Date: May 5, 2017

Between

Her Majesty the Queen

— and —

Cian Doorley

Before: Justice H. Borenstein

Heard on: March 20 and 24, 2017

Reasons for Judgment released on: May 5, 2017

Counsel:

• Mr. Kalantzis — counsel for the Crown
• Mr. Masir — counsel for Cian Doorley

BORENSTEIN J.:

Overview

1Cian Doorley is charged with assault. He and his brother were out at various locations throughout the late afternoon and evening. They were both drinking. At around two in the morning, they were in line at a hot dog stand. The complainant, Evan Ferguson, was also waiting at the hot dog stand with a female friend. A dispute arose between Ferguson and Doorley.

2Ferguson alleges that Doorley began mocking his voice by using what he described as stereotypically gay voice. They exchanged words. Ferguson says Doorley punched him in the face. Ferguson and his female friend ran to the laneway next to the hot dog stand for cover. Doorley chased him and continued assaulting him. Ferguson believed he hit his head on the ground and lost consciousness. When he came to, the police and EMS were on scene taking care of him.

3Doorley says that he and Ferguson were exchanging banter and Ferguson became offended. He was not mocking Ferguson's voice in any homophobic manner. He was just imitating it. They were bantering and Doorley was just giving it back. Doorley was not angry. Ferguson then pushed Doorley hard in the chest knocking him down. Doorley got up and struck Ferguson once as he feared Ferguson would continue to attack him. Thereafter a scrum ensued where everyone was grappling. He denied punching Ferguson after the first punch and denied following him into the laneway. Doorley's brother Shane Doorley corroborated some of the accused's evidence. A witness who was in line, and did not know any of the parties, Luka Pike, gave evidence. He testified that the accused chased Ferguson into the laneway, pushed him to the ground, straddled him and was punching him. Pike helped pull the accused off Ferguson. P.C. Kan arrived on scene. He testified that the accused lied about his name before admitted his real identity.

4As always, the issue is has the Crown proved the case beyond a reasonable doubt. I turn to the evidence in a little more detail.

The Complainant

5Evan Ferguson was 27 years old. He was smaller than both Doorley brothers. He and his friend Linda had been at a bar. He had about five drinks over the course of several hours. He said he was not too intoxicated that night or "super drunk". At around 2:00 a.m., he and Linda were in line waiting to buy a hot dog. A male behind him, the accused as it would turn out, began mocking Mr. Ferguson's voice by using what Ferguson described as a stereotypical gay voice. Ferguson said something like: "what is your problem" and called him old fashioned. He and the accused were now in each other's face. Ferguson was angry and told the accused to go back to the small town he crawled out of. Ferguson then turned away from the accused and back toward Linda when the accused punched him in the side of the face. He and Linda immediately ran to the laneway just next to the hot dog cart. Lisa began wiping blood off of Ferguson's face. Ferguson then saw the accused running toward him. The accused knocked Ferguson to the ground. He lost consciousness. When he came to, he was being tended to by the police and ambulance personnel. He testified that, while initially arguing with the accused at the hot dog stand, he was pointing but did not think he touched the accused and he did nothing physical to the accused. He thought the accused punched him one or two times before he and Lisa ran to the laneway. When he was knocked down in the laneway, he thinks the accused punched him with his fists four or five times. He was cowering on the ground curled up like a ball when that happened. He believes he hit his head on the ground and lost consciousness.

6In cross examination, he disagreed that he had eight or nine drinks or that he told EMS that he had that many. Further, he described himself as "out of it" when he spoke to EMS.

7He gave the police his statement by email about 54 days after the incident. In that email, he said he was pushed to the ground. In his evidence, he said he was punched between four to five times after on the ground. He tried to explain that the two statements were not incompatible or inconsistent.

8His medical records were filed on consent which revealed that he had a small bump (less than one centimeter in diameter) on the left side of his head, abrasions and a nose bleed. There were no lacerations.

Luka Pike

9Luka Pike is 28 years old and works as a strategic commercial analyst. Mr. Pike was out with his girlfriend that night. He had three or four beers over two hours. He and his girlfriend were in the hot dog line ahead of the others. He did not know any of the parties.

10He heard voices and two men yelling behind him. He did not know how it started but believes he heard homophobic remarks. He did not see anything physical in line. Things seemed to calm down. He then saw the accused knock down Pike's girlfriend as the accused ran past her. Ferguson was in the alley. The accused grabbed and shoved Ferguson to the ground. It looked as though Ferguson hit his head on the ground. The accused was on top of Ferguson taking swings. Pike and several others tried to pull the accused off of Ferguson. Ferguson was curled up in a ball, pretty much in self defence mode. Ferguson believed the accused's friend, presumably his brother Shane, was also trying to restrain the accused. They held him for the police. The accused was still shouting at Ferguson. Pike denied the suggestion that he or he and his girlfriend assaulted the accused.

P.C. Kan

11P.C. Kan received the dispatch and attended the scene. On his arrival, he was directed to the accused. He asked the accused his name. The accused identified himself as Paul O'Shea. Kan ran the name but there was no Paul O'Shea. Kan cautioned the accused but the accused maintained his name was Paul O'Shea. Kan's partner was speaking with the accused's brother and learned that his last name was Doorley. He cautioned the accused again who this time gave his real name. The accused denied doing anything wrong. According to Kan, the accused and his brother were intoxicated. He would not take a statement from them as they were both intoxicated. He told them they could give statements when they sobered up.

12Kan's notes were sparse. He had no notes of injuries to the accused or Ferguson. He did not note any indicia of intoxication but did note HBD for had been drinking in relation to the accused. Kan did not take statements from anyone that night. The accused and his brother were yelling the whole time when told the accused would be charged.

Cian Doorley

13Cian Doorley testified. He was in Canada on a work permit from Ireland. He was applying for Permanent Residents Status and was aware that any trouble with the law would affect his application. His brother Shane had arrived that day from Philadelphia. He wanted to show his brother a good time in Toronto.

14They met at around five p.m. at Shoeless Joes for dinner and a few pints of beer. They then went to the Blue Jays game and had a few beers and a hot dog. After the game, they went to Tortilla Flats for one beer. Then they took a cab to the Ossington area and had a pint of beer. Then they went to another bar, Sweaty Bettys, and had three more drinks and stayed until closing at two a.m. In total, he testified that both he and his brother each had about ten drinks throughout the course of the night. Once the bar closed, they stood in line for a hot dog.

15Ferguson and a female were in front of him. All of a sudden, Ferguson said to his female friend; "Listen to that stupid Irish accent". The accused mimicked Ferguson's voice and repeated what Ferguson had said. The accused was not angry. Ferguson asked his friend if the accused was mocking him. The friend said he was. Ferguson then turned to the accused. The accused took a step back. Ferguson then pushed the accused in the chest with such force as to knock him down. The accused got up, felt threatened and instinctively punched Ferguson. Thereafter, everyone joined in. There was lot of pushing and shoving but he never punched Ferguson again. The accused testified that a man and woman were standing in front of him. That would be Pike and his girlfriend presumably. The accused testified that Pike's girlfriend struck him in the face and threw food and condiments at him. He took a picture of his shirt later that night with some mustard or ketchup on it. He testified that he put his hand on her shoulder to move her. Pike then said he was assaulting his girlfriend. Pike then punched the accused in the face. The accused punched Pike back. The scrum continued with everyone rolling on the ground.

16The police arrived. The witnesses blamed the accused. He shouted that they were lying. The police told the accused and his brother to wait in the alley. An officer asked him his name. He lied. When the officer checked and said it was a false name, Doorley again gave the same false name. He lied because he feared for the immigration consequences. An officer was then speaking with Shane Doorley and returned. When he did, the accused apologized for lying, explained the reason he lied and gave his real name.

17He then told the officer what happened. The officer asked if he wanted to press charges but Doorley said he did not due to his immigration concerns. The officers then spoke to the other witnesses. When the officer returned, he said he was going to charge Doorley. Doorley testified that he became "fairly animated" and said they were lying. He began crying. The officer gave him an appearance notice and told him to leave. He did and when the scene cleared, he and his brother returned. His brother took photos of Doorley's torn shirt, with a condiment stain and a minor injury. They went to the police station to give a statement but officers there would not take a statement.

18In cross examination, Doorley confirmed he and his brother were both fit and bigger than Ferguson. He denied mocking the complainant's voice in a homophobic way. He was just mimicking the complainant's voice. The two exchanged words. He does not remember what was said. It was just banter. Doorley was not at all upset by what had been said.

19Doorley testified that he was pushed hard by Ferguson and the fall caused injuries. When he did, a crowd was forming around Ferguson.

20He got up after knocked down. He felt threatened so he punched the complainant.

21He agreed that Ferguson's arms were not raised, he had not made a fist, did not come toward him or say anything before the accused punched him. He did not know whether the other people around Ferguson were his friends but he believed they were. He was afraid so he punched Ferguson in self-defence.

22He denied running to the laneway after Ferguson. He denied that a group was trying to stop him from attacking Ferguson. He repeated that a scrum arose right after he punched Ferguson. Everyone was grabbing everyone else.

23He never saw Ferguson again after the first punch.

24As for the tear on the back of his shirt, it did not occur when people were pulling him off of Ferguson. It likely occurred when Pike's girlfriend was pulling the accused's shirt.

Shane Doorley

25Shane Doorley testified. After the evening of sports bars, they ended up at the hot dog stand.

26An exchange of words began between his brother and Ferguson. Shane did not know how that began but it escalated quickly. Ferguson became angry and took a step toward them. The accused stepped back and Ferguson shoved the accused violently to the ground. The accused got up. Shane tried to step in between the two. Two others joined in and a woman began striking the accused in the head. The accused tried to fend her off but the woman yelled that the accused was assaulting her. A male (presumably Pike) then hit the accused. In chief, he said nothing about his brother allegedly hitting Pike. A scrum developed. Shane and Pike held each other. Pike was yelling that the accused assaulted his girlfriend. Shane said he hadn't and asked Pike to calm down. They released each other. Shane did not see what was happening with his brother.

27They heard police had been called and the police arrived. He heard his brother give a false name. He did not say anything. His brother repeated the false name. When Shane told the officer his name and that he was his brother, the officer asked why they had different last names. Shane replied that the accused probably panicked because of his immigration status.

28Both he and his brother tried to give statements to the police that night but the officers would not take them. They tried to give statements at the police station later but were met with the same response. Shane and his brother returned to the scene once it cleared and took some pictures.

29In cross examination, Shane testified that, once the accused was knocked down and got back up, he (Shane) tried to stand between he and the complainant as he did not want anything to happen but was too slow. The accused struck the complainant. Then a male and female struck the accused.

30When shown the photo he took of the accused's face, he described the bruise on the accused's face as depicted on the photo as a large bruise. The mark is so small it is barely perceptible. It is not a large bruise.

31Shane repeated in cross examination that he did not know how the incident began. He did not hear any homophobic remarks, or racist remarks. He did not hear the comment "stupid Irish accent".

32In cross examination, Shane added that his brother struck Pike once Pike struck him.

33It was suggested to him that he could not intervene before his brother struck the complainant because the accused was too quick. Shane replied that it was because he was too slow.

34He did not know what the complainant was doing during the melee or scrum.

35He did not know where Ferguson was when the scrum ended. He could not comment on whether the complainant lost consciousness or whether there was blood on his face.

36When the physical interaction ended, his brother was annoyed, not angry.

37That, together with the exhibits, was the evidence in this case.

Analysis

38There is no dispute that something happened at the hot dog stand between Doorley and Ferguson. Further, something continued in some fashion in the laneway. Has the Crown proved that Doorley committed an assault beyond a reasonable doubt, whether by the hot dog stand and/or in the laneway.

39There is no burden on the accused. If I believe the accused or the defence evidence, he will be acquitted. Even if I do not believe either, but if I am left with a reasonable doubt about whether the accused assaulted Ferguson, based on either or both of the defence witnesses, he will be acquitted. Even if I am not in doubt, the accused will only be found guilty if I am persuaded beyond a reasonable doubt based on the evidence I do accept. I do not approach this case as deciding which version to accept. My task is not to choose which version I prefer. It is to determine whether the Crown proved its case beyond a reasonable doubt.

40Ferguson gave evidence about how the assault began. So did Doorley and his brother.

41I found the witness Pike an independent, credible and reliable witness. He did not know any of the parties.

42For reasons I will elaborate upon during my findings, I found Shane Doorley demonstrated such bias in favour of his brother that I cannot safely rely on most of his evidence.

43I found Ferguson generally credible but unreliable about being punched in the laneway as a result of both losing consciousness in the laneway as well as due to the inconsistency between his evidence and his police statement.

44I found the accused account incredible primarily because it is materially contradicted by the credible evidence I accept from the witness Pike particularly about the accused's attack in the laneway as well as for the other reasons that follow.

Findings

45I do not accept that this was an act of self-defence precipitated by the "stupid Irish accent" comment or a push by Ferguson.

46Ferguson denies making such a comment.

47It is unlikely that a smaller man, in line with a female friend, would decide to take on two larger men behind him by making such a provocative comment. While anything is possible, Ferguson denies it.

48Shane Doorley was right next to his brother. When he was cross examined about the term "Stupid Irish Accent" he seemed genuinely surprised by the question. He never heard such a comment and yet he was right there. He would have been in a position to hear it if Ferguson said it or if his brother repeated it.

49Ferguson described the incident beginning by the accused mocking his voice in the fashion he described.

50Pike was in line and heard a verbal exchange behind him. He could not recall what was said but believed he heard homophobic comments which is consistent with what Ferguson described.

51I accept Ferguson's evidence that he never made such a comment. The accused made it up. I accept that the incident began by the accused mocking Ferguson in the manner described. While the accused may have considered this banter, Ferguson did not.

52I reject completely the accused's account of how the exchange began.

53The verbal dispute escalated quickly. They were in each others' faces. It was loud. Again, it is notable that Shane Doorley was unable to recount any of the escalating verbal exchange that was occurring with his brother right in front of him.

54I accept Ferguson's evidence that he made some derogatory comments to the accused such "why don't you go back to the small town you crawled out of" and turned away and that is when the accused punched him in the face.

55I accept that Ferguson and his friend then ran to the laneway to get away from the accused and that the accused chased him, knocked him down and continued striking him until he was pulled off.

56I do not accept that Ferguson pushed the accused down and the accused got up, punched Ferguson in self defence and was then attacked and punched in the face by Pike and his girlfriend, two disinterested witnesses.

57As indicated, I found Pike the most impressive of all the witnesses in this case. I accept his evidence that neither he nor his girlfriend attacked the accused. They were not involved in this exchange. I reject the accused's evidence that he or his girlfriend assaulted accused after Ferguson assaulted Pike and am not in any doubt about that. The picture showing some ketchup or mustard on his shirt does not add anything.

58Shane Doorley was standing right next to his brother in line where some sort of verbal altercation was occurring and escalating, yet he could not recount what was said at all.

59He testified that Ferguson pushed his brother down. When his brother got up, Shane testified that he tried to get in between his brother and Ferguson before his brother punched but could not. When it was suggested that this was because his brother was too fast, he replied that it was because he was too slow. This is just another example of Shane trying to protect his brother.

60In his evidence in chief concerning the exchange of punches between Pike and his brother, Shane at first described only Pike punching his brother. In cross examination, he added that his brother punched Pike back. I accept as credible Pike's evidence that he did not punch anyone.

61Further, Shane stood by while his brother was lying about his identity to the police and persisted in lying.

62While I do not rely on Shane's evidence for the reasons mentioned, in any event, he testified that he did not see what his brother was doing after that encounter by the hot dog stand. He did not know where or what his brother and Ferguson were doing.

63The accused testified that he had no dealings with Ferguson after the first punch and that he was in a scrum with others.

64That is contradicted by the independent witness Pike. It is also contradicted by Ferguson.

65Ferguson has the accused running toward him while he is in the laneway and knocking him down. Pike also testified that the accused ran after Ferguson into the laneway, knocked him down and began striking him until Ferguson pulled him off. That is how the accused's shirt was likely torn.

66Both Pike and Ferguson, who do not know each other, described Ferguson as cowering or curled up like a ball when this happened and both described his head hitting the ground.

67While Ferguson was inconsistent with respect to whether he was punched as well as knocked down in the laneway, I accept he was assaulted both at the hot dog stand and in the laneway. I also accept that he lost consciousness in the laneway and his memory is not clear. More importantly, it is primarily Pike's evidence as to what happened in the laneway that I found credible and reliable. Pike was an independent, credible, reliable witness who came to court to tell the court what he saw and did.

68Even if Ferguson did push Doorley down, which I do not accept happened, it would not justify what followed. This was not an act of self defence. It was an attack by Doorley upon Ferguson.

69Accordingly, for these reasons, I find the accused guilty.