R. v. Campana, 2019 ONCJ 16

Court Information

Court: Ontario Court of Justice

Date: January 11, 2019

Between:

Her Majesty the Queen

— and —

Paul Campana

Before: Justice A. D. Dellandrea

Heard on: November 15, 16, 26, 27, 28, 2018

Reasons for Judgment released: January 11, 2019

Counsel

Mr. Theo Sarantis — counsel for the Crown

Mr. Deniz Sarikaya — counsel for the accused Paul Campana

DELLANDREA J.:

Introduction

1The defendant Paul Campana, and the main complainant in this case, Aaron Stone, are well known to each other. They are neighbours who were formerly friends. After a brief and unsuccessful attempt at becoming work partners, their relationship soured to the point that they have become effective enemies.

2Mr. Campana is charged with a total of seven offences spanning roughly a year long period of time, beginning in 2016 and culminating with an event on July 28, 2017 which resulted in Aaron Stone being physically injured. Mr. Campana does not dispute having struck Aaron Stone in the face on the final date, or that his attack caused Mr. Stone's facial injuries, which he concedes amount to a wounding. The two issues which remained in dispute around this incident are the mechanics of the assault by Mr. Campana, and his intention during the admitted attack.

a) Positions of the Parties

3The Crown alleges that Mr. Campana stabbed Mr. Stone in the face with a knife, and that he did so with the intent to kill. Mr. Sarikaya argues that the evidence could only support the conclusion that his client punched, rather than stabbed the complainant. Further, he submits that whatever the mechanics of the attack, the nature and brevity of the encounter do not support a finding of any specific intention to kill (Counts 1-3).

4Mr. Campana is also charged with having criminally harassed and threatened to kill Mr. Stone in the year preceding the physical attack. Mr. Stone's wife, Jennifer O'Grady alleged that Mr. Campana circled their house and stared at she and her children on a near daily basis, in a way that she felt was menacing. The Stone's daughter, Abigail, also gave evidence of having seen Mr. Campana make a throat slashing gesture in her direction. Ms. O'Grady said that Mr. Campana verbally threatened to kill her husband (to her) during this same period, and that she and her family felt besieged by his verbal attacks and hostile physical presence near their home. The Crown relies on a series of text messages exchanged between the Stone couple and Mr. Campana in September 2017 as evidence of his criminal harassment, and of the implied threat to cause Aaron Stone's death (Counts 4 and 7).

5There are two additional charges of threatening death for an incident on July 25, 2017, when Mr. Stone and Ms. O'Grady both say that after yelling at Mr. Stone to turn his music down in the backyard, Mr. Campana verbally threatened to kill them both (Counts 5 and 6).

6Mr. Sarikaya, for the defendant, does not deny that there were periods of intense acrimony between his client and the Stone family, and that profane if not aggressive words were exchanged in equal measure between the parties. However, he submits that none of the text messages from his client included what could be construed a death threat, nor did his client's movements throughout the housing complex which he shares with the Stone family amount to watching or besetting the complainants' household. Finally he argues that there are serious credibility concerns with each of the Stone family members' testimony which makes their evidence unsafe to rely on to make a finding of guilt on any of the charges.

b) Analytical and Legal Framework

7The five factual and legal issues to be resolved in this case are as follows:

(1) Does the evidence prove that in the year preceding the July 2017 attack that Paul Campana communicated a threat to cause Aaron Stone's death to Jennifer O'Grady?

(2) Does the evidence establish that between 2016 and 2017, Paul Campana criminally harassed the Stone family by watching and besetting their home?

(3) Does the evidence prove that Paul Campana threatened to kill both Aaron Stone and Jennifer O'Grady on July 25, 2017?

(4) Does the evidence establish that Paul Campana stabbed, as opposed to punched, Aaron Stone in the face on July 28, 2017?

(5) Does the evidence establish that Paul Campana struck Aaron Stone with the intent to kill on July 28, 2017?

c) Applicable Legal Principles

8As with every criminal trial, the Crown must prove its allegations beyond a reasonable doubt. There is no burden on Mr. Campana to prove anything, or to disprove the allegations. Mr. Campana is entitled the benefit of any reasonable doubt that arises on the evidence.

9Mr. Campana did not testify, as was his right to so choose. Mr. Campana through his counsel vigorously challenged the credibility of the Crown witnesses, on whose evidence the prosecution depends. It is submitted that it would be unsafe to rely on the testimony of the primary Crown witnesses due to a combination of fatal credibility flaws said to exist, in various combinations, in their evidence. These include what Mr. Sarikaya suggests are: exaggeration, tainting, implausibility, vagueness, and evasion. In the case of the evidence of Aaron Stone, it was argued that his evidence ought to be summarily rejected as being incapable of belief, due to the extent of his criminal record, which includes convictions for offences of dishonesty.

10Credibility is the central overriding issue in this case.

11A trier of fact may believe all, none or some of a witness's evidence, and may attribute different weight to different parts of the evidence which he or she has accepted (R. v. Francois, [1994] 2 S.C.R. 827; R. v. J.H., [2005] O.J. No. 38, (C.A.) at para. 44.)

12The distinction between credibility and reliability is an important one in a criminal trial. Credibility turns on a witness's desire or capacity to tell the truth. Reliability relates to the accuracy of the witness's account. A witness may sincerely believe her own evidence, but other evidence can suggest that her sincerely held belief is mistaken, or unreliable.

13In assessing the credibility of the witnesses in this case, I have considered the factors recommended by Justice Watt in his Manual of Jury Instructions, 2nd Ed (Toronto: Carswell, 2015) at p. 267, as well as the issues of collusion, bias, motive to fabricate, omission or exaggeration.

Overview of Facts

14The principal parties in this case are long time neighbours in a large townhouse complex in Mississauga. The Campana family has lived there for at least 20 years, and the Stone family moved in approximately 12 years ago. At one time, the families were friends. Paul Campana and his father used to socialize with the Stones on their porch, Paul used to play with the Stone children, and the families appeared to consider the other good neighbours. Then things changed.

15It is not disputed that following the failure of their attempted business partnership, the relationship between the defendant and Mr. Stone changed from one of friendship, to mutual resentment and hostility.

16In 2016, Mr. Stone was unemployed, due to a previous injury. However, he had experience in a variety of trades, including landscaping. Apparently Mr. Campana secured a big contract to install sod. He approached Mr. Stone to help him with it and some form of partnership was struck for this venture.

17The partnership "went south" according to Mr. Stone on the first day, when Mr. Campana was asked to leave the site for not complying with the required dress code. Mr. Stone testified that he then had to hire five other workers to help him to finish the job. When his tools were stolen and his materials spoiled, Mr. Stone had to re-purchase and replace these items at his own expense, placing himself and his family at a significant personal deficit. He said he called Mr. Campana and explained that there would be no profit to split, and that at best he hoped to recoup the money he had spent. The $400 which he offered to Mr. Campana was apparently rejected, and the grudge between he and Mr. Stone began.

Issues 1 – 3: The Alleged Threats to Kill Aaron Stone & Jennifer O'Grady, and Criminal Harassment of the Stone Family

18According to Aaron Stone, a few months after the partnership went sour, he started to see Mr. Campana circling their house, and standing on the paths staring at their home. Then there was a period when things "cooled" Mr. Campana was cordial and even helped the Stone family with their cat.

19Again the relationship deteriorated, as Mr. Campana renewed his demands for the money he felt he was owned by Stone. Mr. Stone testified that he had "a few" conversations with Paul by phone in which threats were expressed around the issue of payment. On Mr. Stone's own evidence, the exchange of threats was mutual. He testified: "we would threaten each other. I kill you, you kill me, that kind of thing." Mr. Stone claimed that Mr. Campana said: "I'm going to get my money, whether I get it from you or from them, it's not my problem that job got screwed up."

20The exchanges around money then moved to text format. Mr. Stone and his wife Jennifer O'Grady shared a cellphone on which they each communicated with the defendant.

a) Cellphone Extraction Report

21An extraction report reflecting four days' of text messages between the Stones and the defendant in September 2016 was filed. It contains 202 messages; 176 of which were sent by Mr. Campana. The Crown relies on the extraction report as proof of Mr. Campana's alleged threat to cause death to Aaron Stone between July 2016 and July 2017.

b) Uttering Threats to Cause Death to Aaron Stone

22The actus reus of the offence of uttering threats is made out if a reasonable person, fully aware of the circumstances in which the words were conveyed would have perceived them to be a threat of death or bodily harm. It is not necessary for the Crown to prove that the intended recipient was intimidated by it or took the threat seriously. What is required, in order to establish the second element of mens rea, is proof that the accused intended the words spoken to intimidate or be taken seriously (McRae, 2013 SCC 68, at paras. 13 – 19).

23Both Mr. Stone and Ms. O'Grady testified as to their interpretation of the text messages which they received from Mr. Campana. They agreed that none of the messages from Mr. Campana included the words "I am going to kill you" or any comparable phrasing that could be said to approach an explicit threat against Mr. Stone's life. However both testified that they interpreted Mr. Campana's words as amounting to an implied death threat, from which they felt a genuine fear.

24A careful review of the four days of messages reveals a consistent theme. Mr. Campana wants to get paid. The excerpted messages begin (on Sept 24th) with a reasonably controlled request: All I want is the money I o the guy for this stuff and u get the rest. So grow up body.

25Mr. Campana doesn't get a response on the 24th. He grows impatient, and mildly hostile. Curiously, Jennifer O'Grady directs a message to Paul Campana's father, Gil, to the same number from which Paul Campana's demands for payment were received. In this message, she states:

Hi Gil its Jennifer. I am letting you know that Paul has sent over 150 threatening messages last night and sent another 5 already this morning threatening Aaron and me and the kids . I was trying to give him the benefit of the doubt but he made threats of violence against my children n ow so I have already called the police and have forwarded the messages to them as well. I know you said you didn't care but aaron insisted that I gave you the heads up. I don' tknow why he started messaging me but I had to have my children removed from the house in the middle of the night for their safety. That is where I draw the line.

26None of what Ms. O'Grady alleged was true. Paul had not sent 150 messages. The messages made no reference of any kind to her children. There were no threats of violence or harm conveyed whatsoever.

27On Sept 25th, having himself received this message, Mr. Campana demands that Mr. Stone come outside and give him his money. He says that he is going outside or to their house. He gets no reply. He says he will be coming for his tools. No response comes.

28Then in the afternoon, Ms. O'Grady writes back. She asks him to "leave me and my daughters and Aaron alone." She refers to the $7000 which she claims she and Aaron had to pay towards the job, which they lost. She writes: "if you message me again I will have you arrested. Of you can grow up and stop harassing a mother and her children".

29The defendant responds to the suggestion of having made, and steers the subject back to the topic of money: "where do u get that I threatened you ur kids or arron are you crazy or sometihg. Please call the police. Plz (165); and "im sorry if you think I'm threatening u or your family bit no threat have been made on my part I would like to see when I sent a threat all I want is my money then aaron goes his way and I go mine and I want my tools I paid half for" (163). No response comes.

30On Sept 26th, Mr Campana continues sending messages. They include no threats. Only repeated demands to meet with Aaron to get his money.

31Mr. Stone returns to the dialogue, and initiates a shift in the tone. At 12:01 he wrote: Don't call me or even look at me again, these are my tools, mine, I paid for them and I have let your baby shit go cause I thought you might marten up nice knowing you. (#145)

32Mr. Campana responds in kind. He says he will be by later to get his money and tools or "u will have a problem on ur hands" and that he will get his money "one way or another." He tells Stone to give him his tools or says he will come and take them himself. Again he refers to getting "his 500."

33Mr. Stone responds at 21:02 (#121) with the first unmistakably threatening missive:

Hey lol bitch meet behind the park at 10:30 where the train tracks are so we can "talk" just me and you. Do you really think that I've been silent this long because I'm afraid of you. Yu are the cheese under my dick right between my balls and my ass you little fucken troll. You bring yours and I'll bring mine and we will seen. Did you really think u were goin to threaten my family ?? u r the fuckin retard that doesn't no when to shut the fuck up. No more talk tuff guy only action. This fuckin Christmas for meyou little fucking maggot. The ONLY reason I have been silent is because she begged me to leave it alone. Do you really think I would call the cops??? I haven't been so happy to see someone since santa. No more words you little price of shit. Your dad told me you were a retard but I had no idea you were this fucking stupid NO MORE WORDS.

34Mr. Stone follows up at 21:17 with:

U been barking for days now its time to bite little doggy.

35In his testimony, Mr. Stone admitted that he was being a "pride monster" and a "jackass" when he composed these messages, but adamantly denied that he was being aggressive or threatening towards Mr. Campana. The messages objectively suggest otherwise.

36Mr. Campana responds with laughter and says he will be right out to meet Mr. Stone. For the next 30 minutes the defendant continues texting Mr. Stone from outside that he is there, demanding that he come out to face him. Stone doesn't attend.

37The next series of messages from Mr. Campana include what the Crown suggests are the most hostile messages which come nearest to an explicit threat. Campana says if necessary he will "have ppl kick in ur door for my money" (105) and mocks him for being afraid that his "kids will see u get your ass wiped and your ankle shattered" (101). He adds: "if u don't have my money tomorrow I will be in ur house promise u that". Mr. Sarikaya acknowledges that these messages have a hostile tone, but submits that they do not amount to a threat of death.

38At 21:51, Mr. Stone sends a lengthy and perplexing response (#96). His tone is apologetic, but sarcastic. He opens by again calling the defendant a "retard" but then apologizes for getting "lippy" with Mr. Campana who he describes as "such a fine young man". He avoids the subject of the debt Mr. Campana is demanding be paid altogether, and concludes with "maybe I can find a way to tell u how sorry I am. Please Paul don't hurt me or my family". This sudden tone of submission, abject apology and profuse fear persists in the remainder of the messages from Mr. Stone on Sept 26th.

39Mr. Sarantis argues that the retreating tone of Mr Stone's 21:51 message can be explained by the incident which was captured by Abigail on her iPod and introduced into evidence. In this short video clip captured from within the Stone household on September 26, 2017, Ms. O'Grady and her neighbour Jolene can be heard in a heated exchange with Mr. Campana in which he is being accused of "lurking" and being told to get away from the Stone property. Ms. O'Grady testified that before the recording started, Mr. Campana had leapt from the bushes and threatened to kill her. It is suggested that Mr. Stone would have heard about this incident from his wife when he returned home, and his apologetic and fearful tone in the text messages reflects a reasonable response to his wife's evidence of having been genuinely frightened by that encounter.

40However, the voice which predominates, and which is by far the most aggressive on the iPod video is Ms. O'Grady's, not Mr. Campana's. No other witnesses to this incident could verify hearing any words of threat.

41When the texting resumes that evening, Mr. Campana responds with laughter and derision to the suggestions made by Mr. Stone that he and his family are afraid of him. He calls him a "goof" and a "rat". He tells him he is staring at his house, that continues to demand that Stone come outside"show ur face" and stop "talking shit" and "making up stories". He repeats that he wants his money (#60).

42Between 22:39 and 22:41 the two have the following exchange:

PC: why ur kid looking out the window when I'm walking bye pretending to put a gun to her head and shoot me what u teaching them .

No this is ur phone ur just playing stupid u punk u just gave it to her to make it seem like im treating her ur fuckd buddy. I have never once threating ur wife or kids to stupid fuck and never banged on ur door yelling murder ur fucking crazy

AS: why would you talk about shooting my kids? I didn't' think this could get any scarier but it just did !!! Shooting kids?? Just tell me how much and we will pay please leave us alone

43This message is note-worthy as it offers a clear example of the explicit distortion of the exchange by Aaron Stone, in a manner which is not dissimilar from how Ms. O'Grady had engaged a few days earlier. Mr. Campana told Mr. Stone he had seen one of his children making a shooting gesture at him. Whether or not this was actually observed is of no moment to the observation of Mr. Stone's response, and the court's assessment of his reliability and credibility with respect to his interpretation of these messages. Mr. Stone replied with the dramatic suggestion that Mr. Campana had started talking about "shooting his kids" which he very clearly hadn't. By his own hyperbole and prevarication, Mr. Stone distorted the tenor of the exchange, and undermined his credibility significantly.

44This cycle persists through the conclusion of the extracted messages. Mr. Stone repeats his expressions of terror and begs for Mr. Campana's apology and mercy. Mr. Campana scoffs at what he calls the "craziness" of these messages, and continuously repeats: "all I want is the money I worked for and got promised and you trying to rob me of that you think that's fair".

45With respect to the alleged death threat on July 25, 2017, Mr. Stone testified that as he tinkered in his back yard with his music on, Mr. Campana "snapped" and started screaming at him over the fence to turn his music down.

c) Evidence of Jennifer O'Grady

46With respect to Count 4, the charge particularizes that a threat to cause death to Aaron Stone was conveyed to Jennifer O'Grady, between July 2016 and 2017.

47Ms. O'Grady said that she read the majority if not all of the text messages contained in the extraction report which were received on her shared cellphone with Aaron. While she conceded that there were no explicit threats made towards Aaron, she testified that she interpreted Mr. Campana's allusions to "trouble" or "problems" if he didn't get his money, and to getting it "one way or another" as amounting to an implied threat on Aaron's life.

48Ms. O'Grady admitted in her testimony that the text messages which she had authored included intentional lies. Despite having said that she had done so, she had not called the police or forwarded Mr. Campana's messages to them. She said that this lie was designed to "make an impact" with Gil Campana, to get him to talk to his son.

49When it was suggested that she had grossly exaggerated the number of messages for similar impact (150 versus 10), Ms. O'Grady surmised that there had been hundreds, if not thousands of messages exchanged during this period which she felt weren't reflected in the extraction report. She said she wasn't sure what the police had chosen to take off her phone or what other messages might have gone to one of Aaron's other phones. I found Ms. O'Grady's testimony on this issue to be both defensive and insincere. Her suggestion that the forensic extraction process had failed to comprehensively capture the evidence was clearly an effort to deflect attention away from the obvious hyperbole of her own text messages.

50Other portions of Ms. O'Grady's own evidence contradicted her characterization of the dynamics of her interaction with the defendant. Ms. O'Grady admitted that after the business relationship broke down with Mr. Campana, the expressions of hostility were often exchanged in equal measure between her and her husband toward the defendant. He said often screamed at him out her dining room window as she saw him pass, calling him a 'douchebag' and a loser. She said if she ever heard him outside she would yell at him to go home. When Mr. Campana told Aaron to turn his music down she said "they would yell at each other; you're an idiot, no you're an idiot. They were both idiots. I hold him to go home and Aaron to get in the house".

51With respect to having heard Mr Campana express explicitly threatening words towards her husband in the year preceding July 25th, 2017, Ms. O'Grady's evidence was brief, and decidedly vague. She said "he said he was going to get the money out of Aaron, or me and my fucking kids", which she said she interpreted as a threat to kill her family. No particulars of this alleged assertion were elicited, such as: where, when, and how these words were communicated.

52In conclusion, neither this oblique comment about extracting money nor the totality of the text messages transmitted by Mr. Campana to the Stone couple, in the context of their highly charged, mutually disrespectful relationship, could reasonably be perceived as a threat to Jennifer O'Grady to kill Aaron Stone.

53The Crown has failed to prove the actus reus of the allegation of threatening in count 4.

54Ms. O'Grady's evidence on the allegation said to give rise to counts 5 and 6 was likewise insufficient to prove the charges beyond a reasonable doubt. She testified that she heard Paul yelling at Aaron to turn down his music. She noted that she herself was "probably yelling out the window at him when I saw him, telling him he was a douchebag and to get off my property". When asked if she remembered what Paul said to Aaron on that day, she testified: "I don't remember. There were always threats made along the way. Lots of "I'm going to kill you. And that kind of stuff. It was heated, it was just boy nonsense, that's what I took a lot of it for". After she screamed the insulting label at Mr. Campana one more time, she said Mr. Campana yelled "I'm gonna kill you" or "I'm gonna stab you" to Aaron as he walked home. When asked if Campana said anything to her, she said "probably".

55On her own evidence, Ms. O'Grady described a screaming match which included volleys about "killing" in both directions, which she initially characterized as "boy nonsense". Her evidence on this exchange was otherwise vague, and somewhat glib. It conflicted with Mr. Stone's evidence, which included no reference to any death threat being made on that day. The evidence is insufficient to prove the elements of the alleged threats beyond a reasonable doubt.

d) Criminal Harassment by Watching & Besetting: July 2016-July 2017

56To prove this offence, the Crown must establish five factors:

(1) That the defendant engaged in the prohibited conduct, in this case besetting or watching the Stone household, without any lawful authority to do so;

(2) That the complainants, Aaron Stone and his family were harassed;

(3) That the conduct caused the complainants to fear for their safety;

(4) That the complainants' fear was reasonable, in all of the circumstances; and

(5) That the defendant knew that the complainant and his family were harassed or was reckless or willfully blind as to whether they were.

57The meaning of the terms "watching or besetting" in s. 264(2)(c) of the Criminal Code were considered by Justice Trotter in Eltom, 2010 ONSC 4001. Referring to the definitions which had been refined in an earlier civil case, the court concluded that "watching" is passive in nature whereas "besetting" is active. Watching is continually observing for a purpose and besetting has a physical element of approaching, importuning or seeking to argue with another person. The twin terms, while disjunctive, take meaning from each other.

58Ms. O'Grady alleged that she frequently saw Mr. Campana standing at various locations within their housing complex and staring at her, or "circling" the paths around her home. She said that these sightings were frequent, and their locations varied. She testified that she saw Mr. Campana standing on the pathways when she left for work, when she walked the kids to the bus stop, when she sent her children out to play, and many times in between. Ms. O'Grady said that the defendant stared at her, shouted at her and called her names, and circled their house for "hours and hours", for "an entire year".

59Jennifer O'Grady agreed that the Campana house was only 40 feet away from hers, and that there are numerous paths throughout the complex which would take residents past their house, to get to the parking lot or certain entrances to parks. It was often on these paths where she suggested Mr. Campana stood or used to allegedly "circle" her property. Ms. O'Grady suggested that there were several alternative paths, which would have required him to add only a few minutes to his trip, which Mr. Campana could have and should have taken to avoid passing by their property as often as he did.

e) Evidence of Abigail Stone

60Miss Stone testified for the Crown. Evidence of her prior videotaped statement to police (on July 30, 2017) was admitted pursuant to s. 715.1 of the Criminal Code, on consent. Miss Stone was permitted to testify in the company of a support person, via closed circuit television, pursuant to ss. 486.1 and 486.2.

61Miss Stone was 9 years old at the time of the incidents described in her testimony, and 11 years old at the time of giving her evidence at trial. Abigail is the eldest daughter of Aaron Stone and Jennifer O'Grady.

62Abigail Stone is a bright, and articulate child. She was called to give general evidence of Mr. Campana's behaviour towards her family in the townhouse complex in 2016 through 2017 in relation to the allegation of his 'watching or besetting' the Stone family. She also gave evidence with respect to throat-slashing gesture which she alleged Mr. Campana made in her direction as part of the allegedly menacing conduct said to form part of the criminal harassment of the family. Her evidence also included her claim of having been a witness to Mr. Campana's threat to her father's life.

63In her videotaped statement, Abigail said the defendant was "mean", and a "jerk", because he "swears at people and calls them names" and "says things like I'm going to kill you".

64Abigail said Mr. Campana never said any such things to her, but said he said: "I'm going to fucking kill you and your children" to her mom, as well as "the same thing" to her dad. Later in her evidence, she said it was pretty sure it was just to her mom that those words were said.

65When asked by the investigator for the particulars of the occasions when she heard these alleged death threats, Abigail had no further details to offer. She did not describe where the alleged threats were made, or what her physical position, proximity, or vantage point to her parents was, such that she could have heard such words being spoken. There was no evidence whatsoever of the supposed context in which she heard the threats being made. The only detail which Abigail was able to offer was that she thought it was "probably last year" when it happened. She never actually described hearing them.

66Miss Stone said that "almost every day" Mr. Campana would walk around the paths "circling" her house. She agreed that the path behind her house led directly to Mr. Campana's house. She stated that the defendant often yelled names that weren't nice to her mom. When asked if she was present when these words were said, Miss Stone shook her head in the negative, then added "sometimes, but we were in our rooms. I think, maybe". Abigail wasn't sure that she had ever heard Mr. Campana say any of those words, yet she insisted that it happened every day for months.

67She said Paul never yelled at her, at her sister, or any other kids in the housing complex.

68Miss Stone was prompted by the investigator to describe any other actions Paul did. She said "a couple of times" Paul stood at the fork of the path that splits near the hill and when he saw she and her sister, and her friend Aidan, he made a throat slashing gesture in their direction. She said it happened about a year before she gave her statement. Abigail told the investigator that as a result of these interactions she was afraid for her life, and told her friends to stay away from Mr. Campana.

69In cross-examination, Miss Stone was asked why she didn't tell another trusted adult such as a school teacher about the alleged gesture Mr. Campana had made. Miss Stone responded emotionally to this question, responding that she didn't want anyone to treat her differently or "be scared of my family" because of "something that happened with my parents". Later, when it was suggested to Abigail that she might be mistaken about having seen the gesture, her countenance noticeably changed from the confidence she had presented earlier in chief and on the video. She hesitated then said "I don't know". Miss Stone appeared to be somewhat disappointed or even conflicted by her own answer.

70Tainting was an issue of significant and obvious concern with Abigail's evidence. She asserted to numerous beliefs within her evidence which were revealed to be recitations of what she had been told by either her mother or father, or which she had overheard during the many volatile exchanges between the adults. The most obvious of these included:

(1) Having been told by both her mother and father that the defendant had hurt her dad and/or "attacked" her father with a knife;

(2) Being told that her dad had needed to be stitched inside and out as a result of his injury;

(3) Being told by her mother that Paul was "a scary guy;"

(4) Being present while capturing the iPod video during which her mother and neighbour Jolene shouted profanities at Mr. Campana and claimed he was "lurking in the shadows" of their property.

71To be clear, it is entirely natural, and understandable that a child would accept as fact what she was told by her parents. It was very clear from Abigail's evidence that she loves and trusts her parents, that she suffered a great deal of stress as a result of the prolonged, open hostility between her parents and Mr. Campana which affected her daily life. She was naturally also very worried for her father's safety after the incident of July 27th, which resulted in injuries to him which she saw for herself.

72The law recognizes that while the way that a child gives evidence might be different than that of an adult, it is not to be discounted as inherently unreliable on the basis of these distinctions which may simply flow from the age, maturity or sophistication of the particular child. Yet some of the factors which apply to the assessment of all witness's credibility may be heightened in circumstances where the child is called to testify about circumstances of conflict, and animus alleged between members of their close family, and outsiders. The child's natural sense of loyalty or obligation towards her parents might tug against her duty to tell the truth. It appeared to me that there was a sense of such a conflict inherent to the way that she hesitated and struggled to respond to some of the final questions posed of her in cross examination about the throat-slashing gesture.

73Additionally, there were a few instances of leading and encouragement during Miss Stone's police interview which were of concern.

74In the final analysis, I am unable to rely on Miss Stone's evidence with respect to the alleged death threats against either of her parents, or allegation of criminal harassment. She never described hearing any such threat; she simply said they had been made. Miss Stone did her best in providing her evidence, but her description of the two occasions of having allegedly seen the gesture were similarly vague, lacking in context and detail. Ultimately, she appeared uncertain about her evidence, and worried about the answers she had given. It was obvious that Miss Stone's exposure to the open and prolonged hostility exchanged between her parents of Mr. Campana had upset her deeply. I cannot be confident that it did not also have an impact on the reliability of her evidence. As a result of these frailties, I am not satisfied beyond a reasonable doubt that the menacing gesture said to form part of the criminal harassment allegation was made by Mr. Campana to Abigail Stone.

f) Evidence of Neighbours

75Some neighbours from the townhome complex described hearing the argument which was the subject of the Ipod Video. Eric Tateno lives right across the pathway from the Stones. He heard a male voice yelling "a couple of derogatory words" at Jennifer O'Grady, but did not hear any threats. Mr. Tateno went out to see if everyone was ok, and by then only Ms. O'Grady and her friend Jolene were present. Mr. Tateno testified that he had never seen Mr. Campana hanging out near the Stone house or hiding in the bushes, either before or after this one incident. He never heard Paul threaten the Stone children. He remembered seeing Paul pick up the Stone kids at the bus stop sometime in the past.

76Ms. Lorbetskie, Mr. Tateno's wife, heard essentially the same thing about this incident. She testified that before this happened, she had seen Mr. Campana only a few times, and didn't even know he lived in the complex. She had never seen Mr. Campana hiding in any buses or threatening any member of the Stone family.

g) Analysis and Conclusion

77After careful consideration of all of the evidence, I have concluded that the Crown has failed to prove that Paul Campana was continually observing for a purpose or approaching, importuning or seeking to argue with Aaron Stone, or members of his family, without lawful authority.

78Mr. Campana's home was 40 feet away from the Stones, which would have required him to routinely use the pathways throughout the complex. Two independent witnesses, neighbours who lived directly across the pathway from the Stones for 8 years, testified that they rarely saw the defendant at all, and certainly not hiding in bushes or trees. Nor did they hear a rash of verbal taunts toward Ms. O'Grady, as she claimed to have been subject to. Their evidence is thus inconsistent with the Stone's.

79In their own text messages, Ms. O'Grady and Mr. Stone significantly exaggerated and distorted the truth around Mr. Campana's conduct. This evidence detracted significantly from the credibility and reliability of both parties on this issue. Miss Abigail Stone's evidence, while sincerely offered by her, bore the signs of tainting and the unfortunate spectre of her parents influence. The evidence has failed to satisfy me that Mr. Campana's observation of the Stone household was continuous, or for the prohibited purpose of a criminal harassment.

80As a result I am left with a reasonable doubt on count 7, criminal harassment.

Issues 4 & 5: The Attack of July 27: Attempted Murder, or Aggravated Assault

81It is not disputed that on July 27, 2017, Paul Campana attacked Aaron Stone, and at that after the assault, Stone had received injuries that required stitches to close. Nor is it disputed that the defendant had a knife in his hand as he approached the victim, and that he struck Mr. Stone in the face.

82Mr. Sarikaya has admitted that the evidence of his client's wielding of the knife and aggressive words on his approach alone are themselves factually sufficient to prove Count 1, assault with a weapon. He also very fairly acknowledged that the legal definition of Count 2, aggravated assault by wounding is met where there is evidence of the victim's skin being pierced or broken, to the point of bleeding, as there was in this case. Both of these concessions are well-founded, and reasonable. (See: R. v. Littletent, 1985 ABCA 22, at para.1; R. v. P.H.B., 2000 B.C.J. 850 at para. 22; R. v. Assiniboine, 2005 BCSC 1053, at para. 40; R. v. Hilderman, 2005 ABQB 106)

83Two issues remained very much in dispute. First, whether the Crown's evidence has proven beyond a reasonable doubt that Mr. Campana used the knife to inflict the blow, or in other words, that he stabbed Mr. Stone as opposed to punching or striking him while a knife was in his possession. And second, whether the Crown's evidence is sufficient to prove that Mr. Campana specifically intended to kill Aaron stone, and is guilty of attempted murder.

84In support of its theory that Mr. Campana attempted to kill Mr. Stone by stabbing him in the mouth, the Crown relies on the following sources of evidence: Aaron Stone, Jennifer O'Grady, Marianna Pighin, Aaron Stone's photos and emergency records, and Mark De Oliviera, the ambulance driver.

85Mr. Sarikaya argues that much of the Crown's own evidence points away from this theory, and supports the conclusion that Mr. Stone could not have been, and wasn't stabbed by his client. In particular, he relies on the independent and unshaken evidence of Marianna Pighin, who maintained that she only saw a punch, not a stab. The defence argues that far from supporting the Crown's theory, the medical records, photos and CFS records prove the opposite: that Mr. Stone's injuries could not have been caused by a knife or support an inference of any intent to kill.

86Central to Mr. Sarikaya's argument is his strenuously advanced caution against any reliance being placed on the evidence of either Jennifer O'Grady, or Aaron Stone. Particular emphasis is placed on the need for extra caution around the evidence of Mr. Stone, whose lengthy criminal record he says demands consideration of the principles of Vetrovec.

87Mr. Sarikaya correctly emphasized the rigorous standard applicable to the elements of proof of the Crowns' case, and noted that where the evidence was equivocal or uncertain – his client is entitled to the benefit of any available reasonable doubt.

a) Evidence of Aaron Stone

88Mr. Stone testified that he was speaking with Ms. Pighin just outside his back gate when she suddenly said something like "he's got a knife". He said he turned and saw Mr. Campana raise a knife. Mr. Stone says he said "are you going to stab me". He said he was concentrating on the hand and is certain it was Mr. Campana's right. He saw a black nub or handle and a shiny silver blade. He testified "I was staring into the sun. It had to be late morning, it is seared into my brain, I couldn't make anything else out except the arm, the knife, the sun."

89Initially Mr. Stone said the very next thing that happened was that Mr. Campana attacked him. Later he said that the first thing he did when he saw the knife was to "instinctively" step in front of Ms. Pighin. It was then that he said he was struck.

90Stone described the mechanics of the blow as follows. He said "it was one blow to the face through my mouth, on the left side of my face". He said he felt the pommel of the knife made first contact with his cheek, then the blade went through his lip, and knocked out some of his back teeth. He said he immediately fell on all fours before his wife came running from the house and called 911. He described his lip as "a mess""completely bloody", with his lip "hanging open" and almost "falling off".

91Mr. Stone testified that when the ambulance attendants came they told him he was lucky he wasn't dead.

b) Evidence of Jennifer O'Grady

92Ms. O'Grady didn't see the altercation on July 27th, but says she heard it and came out moments after. She said she saw her husband who was "covered in blood", and Paul fleeing. She called an ambulance. He said her husband's face was "so covered in blood" that she couldn't figure out where all the blood was coming from at first. Then she saw that his lip was "split right open". She offered that she could tell by the way the lip was split apart that it wasn't a punch.

93When the ambulance came she accompanied Aaron to it. She said he was spitting out his teeth into his hand. Ms. O'Grady testified that she was at the hospital with Aaron when the medical staff stitched both the inside and outside of his lip.

c) Evidence of Marianna Pighin

94Ms. Pighin was the property manager at the complex. She had no skin in the game, as they say, in the form of favour or bias towards or against either Mr. Stone or Mr. Campana. Her version of the altercation was described carefully, cautiously and dispassionately. She never speculated or guessed. I found her to be an extraordinarily credible witness.

95Her version of events differed in almost every respect from that of Mr. Stone, and Ms. O'Grady's.

96She described speaking with Mr. Stone behind his property when she saw Campana coming. On this one fact, her evidence is agreement with Stone's. Thereafter, it diverges.

97Ms. Pighin said that as Campana approached he was yelling at Stone "why aren't you a big man now", and Stone was yelling back. There was aggression and they were "razzing" each other, although Mr. Campana was the initiator. Campana came to face Stone. Stone didn't step in front of her, but rather she stepped backwards. She saw the defendant take something out of his right pants pocket. At first she worried that it was a gun, but then saw that it was a large hunting knife.

98She observed the knife in the defendant's right hand because she said she watched him take it out of his pocket "cautiously". She said she saw the knife "clearly" and that she "vividly remembers the object". It had jagged edges and was hooked at the end and had a wide blade.

99Then she said she saw Mr. Campana's left hand shoot out towards Stone's face. She said "it was just the hand shooting out". She was asked if she could have been mistaken about which hand she saw striking Mr. Stone. Ms. Pighin carefully considered the question and responded: "I need to say it, I believe it was the left. I did not see the knife. Once it came out of the pocket, there was no focus on the knife anywhere else. ...I didn't see the knife contact Mr. Stone's face". She testified that her eyes came off the knife in Campana's right hand "because of the fist coming out. The object came out of his pocket and all I know is his fist came out to attack".

100Ms. Pighin saw Mr. Stone walked away from the hit, then fall down after taking a few steps. There was some blood coming from his mouth, but not a lot.

d) Paramedic Evidence

101Mr. De Oliviera attended the 911 call. He described Mr. Stone's lip as cut "through and through" and said there were teeth missing behind it. He remembered minimal bleeding coming from the split lip, which slowed to a "trickle" while he was there. At no point was bleeding a medical concern to him.

102De Oliveira was not able to recall which side of Stones face had been injured. When he was shown the photos of Mr. Stone from two days following the incident, he agreed that there was no "through and through" cut, and that he might have been mistaken in his initial statement. He said Mr. Stone didn't spit any teeth up in the ambulance, and that if he had, he would have noticed and noted it.

e) Medical Records

103The medical records introduced were unfortunately of next to no assistance. From the handwritten entries that I was able to discern, they established little more than the fact that Mr. Stone's lip had been stitched. I am unable to determine from the records where the stitches were applied, or how many in fact there were. In any event, even if these facts were known, they would not assist me at all in the determination of how the injury was caused.

f) Photos

104Photos of Mr. Stone taken two days after the injury were tendered. They show a circular red mark to his upper left cheek of approximately 1 cm, and blue stitches on the outside of Mr. Stone's upper lip along a laceration which is also approximately 1 cm.

105The photos of the inside of Mr. Stone's mouth depict white marks or lines that roughly correspond with the location of the laceration and sutures on the outside. They also appear somewhat like canker sores. The Crown invites me to rely on these images to infer that the white lines represent the "exit wound" of the knife, which Mr. Stone said went "through" his lip.

106Respectfully, I cannot possibly make such a finding as a lay person, based on this evidence. To do so would require me to speculate on what an exit wound looks like, in the absence of any evidence on this point, and to settle on this as the only reasonable circumstantial finding, without any basis to evaluate between the alternative possibilities that might exist. This type of reasoning is impermissible (Villaroman, 2016 SCC 33). One of the very obvious alternatives being the possibility that a punch could also have split the lip and caused the injuries. Since I simply don't know which if any of these conclusions the circumstantial evidence of these images supports, the evidence is assigned no weight.

107One inference which I can safely draw from the images is derived from common sense. That is: the images do not support Mr. Stone's contention that the blade went "through" his mouth and knocked out his back teeth. The photos do reflect that two or more of Mr. Stone's rear teeth were missing. However he testified that he had bad or rotten teeth which were already at risk of falling out. More importantly, common sense compels the conclusion that if a large hunting knife had entered Mr. Stone's mouth and reached the back of his jaw to knock his rear teeth out, there would have been catastrophic injuries to the inside of his mouth. The suggested alternative, that the blade reached the rear of his mouth but only tapped a few teeth out without causing any further damage is, in my view, completely implausible.

108Moreover, the photos of the 1 cm laceration do not offer any support for Mr. Stone and Ms. O'Grady's contention that as a result of his injuries, Mr. Stone's face was soaked or covered in blood. This evidence is a gross exaggeration which unmistakably detracts from their credibility rather than supports it.

g) CFS Report

109The knives seized from the Campana residence were tested by the CFS for the presence of blood. No blood was detected. A male DNA sample was detected on the knife that matched the description given by Ms. Pighin, but it was not Mr. Stone's DNA. This evidence offers no support to the Crown's case.

Conclusion

110I agree with Mr. Sarikaya's characterization of the Crown's evidence about the July 27th incident as being highly problematic. This conclusion flows inevitably from the stark contradiction between the Stone's version of events, and the comparatively independent, objective evidence of Ms. Pighin, the photos, and the medical and CFS records.

111On this incident, I found both Mr. Stone and Ms. O'Grady's evidence to have included exaggeration, inconsistency and implausible detail.

112While not determinative of the ultimate assessment of the issue of credibility, a spouse's even unconscious tendency to "shade" her evidence out of loyalty to her spouse is an appropriate factor for a judge to consider. (See: R. v. A. (K.) (1999), 137 C.C.C. (3d) 554 (Ont.C.A.), at p. 570). Ms. O'Grady was not a direct witness to the attack, and thus her evidence is of very limited value on the question of causation of Mr. Stone's injuries. However, her evidence on the extent of her husband's injuries after it ended, and description of his profuse bleeding were clear examples of her testimony being exaggerated in this area, in what I believe was a deliberate attempt for it to be aligned with her husband's account. I place no weight on her evidence on the issue of causation or intention as a result.

113I approached Mr. Stone's evidence with even greater care, given the necessity that I caution myself according to the SCC's instruction in Khela which guides the approach for assessing witnesses of unsavoury character.

114Mr. Stone has a very lengthy criminal record which spans three decades. It includes multiple convictions for crimes of dishonesty. At the time of this trial, he was facing several outstanding charges of a similar nature, and he admitted to having lied to customs officials and to knowingly breaching his weapons prohibition. As a result if this, I am required to caution myself against the danger of convicting on the basis of his evidence, in the absence of confirmatory evidence.

115There is no evidence available to confirm Mr. Stone's claim of having been stabbed in the mouth by Mr. Campana. The medical evidence is equivocal, at best. The pictures show a small laceration to the outside of his lip, and a line from which I can infer little on the inside. There was no blood or DNA on the knife alleged to have be used in the stabbing. If anything, this evidence contracts Mr. Stone's claim.

116Even more critically, the most reliable evidence at this trial directly and fatally undermines the credibility of Mr. Stone. Ms. Pighin, an independent and unbiased witness who directly witnessed the altercation within a matter of a few feet said she clearly saw a punch and not a stab. Ms. Pighin was insistent that it was a fist that she saw suddenly strike Mr. Stone's face, dizzying him and then dropping him to the ground with only minimal blood produced. She said she didn't see the knife go near Mr. Stone's face. At the very least, Ms. Pighin's evidence would necessarily raise a reasonable doubt with respect to the theory of a knife having been used. However, based on the exceptional quality and clarity of her evidence, I accept her evidence unreservedly as the truth of what transpired on July 27, 2017.

117There being no reliable evidence capable of establishing the use of a knife beyond a reasonable doubt, there is consequently no basis to find that Mr. Campana intended to kill Mr. Stone when he struck him with his fist on the date in question. There can be no question that Mr. Stone was violently attacked and hurt near his home, and that this experience was understandably shocking and upsetting to him, and to his family. But this fact was never in dispute.

118As a result I conclude that Mr. Campana is not guilty of count 3, attempted murder.

119Based on my previous findings with respect to the allegations of uttering threats and criminal harassment, I find Mr. Campana not guilty of counts 4, 5, 6 and 7.

120Further to the admissions of fact and legal concessions made by Mr. Campana's counsel at the outset of his submissions, I find Mr. Campana guilty of counts 1 and 2, assault with a weapon and aggravated assault.

121I would like to thank both counsel in this case for their exemplary efforts in working together to narrow issues through their preparation of formal admissions and concessions, and for having been so efficient and effective in their presentation of evidence and thorough legal submissions.