WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
PETER OPPONG
Before Justice A. Dellandrea
Heard on June 22-25, September 3, 2021
Reasons for Judgment released on October 7, 2021
Ms. D. Ida counsel for the Crown
Mr. J. Berman counsel for the accused Peter Oppong
1.0 Introduction and Overview
1It was a beautiful summer day on July 13, 2019 when several families flocked to Wildwood Park in Mississauga to enjoy the sunshine. Some gathered as an extended group to prepare and share a meal together. Music was playing. Scores of children were playing happily in the fields and play structures.
2What should have been a lovely day for everyone at the park devolved into a tirade of tears and immature conflict, first between children and then between their parents.
3In the end, a little boy was chased by a larger group and covered with fistfuls of sand, and moments later a little girl suffered a broken arm and had to wear a cast for 6 weeks.
4Mr. Oppong stands accused of causing the bodily harm to that 9-year-old girl.
5It is not in dispute that the girl and a group of older children chased Mr. Oppong’s youngest son out of the sandbox and down a hill towards the street where the little boy ended up on the ground, covered in sand. Nor is it disputed that Mr. Oppong pulled up in his car at the park just as his son hit the ground, prompting him to quickly exit his vehicle and confront his son’s pursuers.
6What is at issue is what happened next. More particularly, whether Mr. Oppong twisted the complainant’s arm angrily after she fell on her way up the hill, and whether he caused the buckle fracture later observed to her right wrist.
7The Crown submits that the evidence of the young complainant, J.O., together with that of her friend E.N. was sufficiently compelling and credible to prove that Mr. Oppong committed an assault on J.O. beyond a reasonable doubt. On the issue of causation, Ms. Ida submits that the opinions of the medical witnesses allowing for the possibility that an aggressive twist of the child’s arm could have caused the resulting fracture should support the conclusion that it was Mr. Oppong’s assault which caused the bodily harm.
8Mr. Berman submits that the court should have a reasonable doubt on both issues, of whether an assault was committed by Mr. Oppong at all, and if so, whether it caused bodily harm. Counsel urges me to accept the testimony of the defendant and of his wife and two sons – all of whom described having first seen the complainant’s group attacking his defenceless son – and thereafter, to having gone to speak to the complainant’s mother up the hill in the park. Mr. Berman submits that I should accept his client’s denial of ever having touched the complainant, who was on the ground after having admittedly fallen forward as she ran. He submits that the medical evidence tendered at trial equally supports the conclusion that the fracture to J.O.’s wrist was the result of her fall – which ought to leave the court with a reasonable doubt with respect to causation. Mr. Berman submits that Mr. Oppong is entitled to an acquittal on this basis.
2.0 Applicable Legal Principles
9Every person who is charged with a criminal offence is presumed to be innocent. That presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. Mr. Oppong bore no obligation to prove his innocence or to disprove his guilt.
10In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, then the defendant must be acquitted.
11A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence heard at trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is not required in order to convict. However, our Supreme Court has cautioned that proof beyond reasonable doubt lies much closer to absolute certainty than to proof on a balance of probabilities.1
12One of the pivotal issues in this case is credibility. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. I have considered whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, or evasive. A judge is entitled to accept some, none, or all of a witness’ evidence.
13Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26. I may not resolve the case simply deciding which of the conflicting versions of events that I prefer. Instead, I am required to first consider whether I believe the evidence of the defendant. If I do, then I must acquit. Further, even if I do not entirely believe the evidence of the defendant, but am left in a state of reasonable doubt on the elements of the charge, then I must also acquit. Finally, even if I completely disbelieve the defence evidence, that does not automatically lead to conviction. I must go on to consider whether the remaining evidence is sufficient to prove the elements of the offences beyond any reasonable doubt.
14The law of causation directs that criminal responsibility for a particular result (i.e.: bodily harm) may only be assigned where it is proven that the accused caused the result in both fact and law. Factual causation concerns how the victim came to his or her injury, in a “medical, mechanical or physical sense:” Nette, 2001 SCC 78 at para. 44. Legal causation is imputed where the accused’s actions contributed in more than a trivial way to the result: Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506 at p. 519.
15In this case, causation and credibility were the primary issues for determination at this trial. I will address the relevant evidence of each witness and make my findings in respect of these related issues, in turn.
3.0 Crown Witnesses
16Two young witnesses for the Crown described an aggressive physical contact by the accused against the complainant which, if believed, would amount to an assault.
3.1 J.O.
17J.O. was eleven when she testified, and nine at the time of the incident. She adopted her videotaped statement previously given to investigators.
18J.O. described being at the playground with her 12-year-old brother, friend E.N., and several of her cousins – all of whom were about her age.
19J.O. said that when she and her group were in the playground area, Mr. Oppong’s son, W.O., started throwing sand at them. She said they told him to stop. When he didn’t, they all picked up sand in their hands and collectively threw it back at him.
20While J.O. acknowledged that the little boy throwing sand was smaller than all of them, and was alone, she was initially reluctant to admit that she and her friends had done anything wrong when they all started throwing multiple handfuls of sand at him.
21J.O. agreed that the little boy got sand all over his face as a result of her group’s retaliation, and said that he ran away from them when that happened. J.O. wouldn’t agree that she and her group chased the boy, but said they “followed” him down the hill. She said the boy ran backwards as he ran, and that when he reached the street at the bottom of the hill he just fell.
22She denied that she or anyone else in her group pushed or kicked W.O., but she agreed that some of them still had handfuls of sand with them as they stood around him on the ground.
23It was then that J.O. said a car pulled up and Mr. Oppong leapt out of the driver’s seat and started yelling at all the kids. She said that everyone immediately ran away, up the hill, to get away from him. J.O. said she thinks her friend E.N. went and hid in the bushes and the rest of the boys got away.
24J.O. said she ran not because she had done anything wrong, but because she didn’t want to get into trouble.
25She said that as she was running up the hill, someone might have kicked her shin and she fell suddenly forward. She outstretched her hands to brace her fall. It was then that J.O. said she was approached by the defendant as he mounted the hill after having picked up his son. She said he picked her up from the ground by the collar of her shirt, then twisted her arm sharply before setting her down and carrying on up the hill.
26J.O. said that she started to cry right away from the pain when Mr. Oppong grabbed her wrist.
27J.O. testified that when she reached her mom, she told her that her head and wrist were hurting.
3.2 E.N.
28E.N. was eleven on the day of his testimony, and was 8 years old on the date of the incident. He was at the park that day with J.O.’s family, whom he refers to as his “god-family.”
29E.N. was very reluctant to describe the interaction between his group of friends and young W.O. in the playground. He said he could only remember that the boy did “something bad to us, I don’t know what,” and then “we did something bad to him.” It was quite apparent that the young witness was worried about his own or his friends’ behaviour on the day in question being critiqued. In cross-examination, E.N. said that after the boy “did something bad” that J.O. had “done something bad back, but she never touched him.”
30E.N. said that after the “bad thing” happened in the sand area, the boy “left” and he and his friends just “went down the hill.” E.N. testified that the boy tripped and “got hurt.” He said the boy was walking or running forward when this happened.
31E.N. described Mr. Oppong getting out of the car to see what happened to the boy, and yelling “why would you push him?” to the group.
32E.N. testified that the defendant “was going to attack us, so we were running and he grabbed J.’s shirt and twisted her arm.”
33E.N. said that he was “on the hill” and he was “going to run” but he then saw the defendant “grabbing her arms” and heard her crying so they figured she got hurt. He said he ran to the parents to get help.
34E.N. said he didn’t notice anything else about the defendant’s behaviour beyond him grabbing her shirt and twisting her arm.
35In cross-examination, E.N. said he was able to remember that the “bad thing” which all of the children had apparently done was to throw sand at W.O. in the playground. Despite this admission, E.N. was clearly minimizing the seriousness of his and his friends’ actions during this portion of his testimony. On his evidence, W.O. just left the playground and headed down the hill on his own before any of the bigger kids pursued him or threw any sand on him after he fell.
36E.N. also testified that as W.O. ran away of his own accord, he continued to throw sand at the group of children who were behind him.
37E.N.’s description of the alleged assault by Mr. Oppong of J.O. varied considerably in cross-examination. E.N. repeated that once he exited his car, the defendant was “going to attack us” by “grabbing our shirts or us.” When asked by Mr. Berman how he knew this was the defendant’s plan, E.N. said “J. was going to run and he did it to her.”
38E.N. was unable to estimate the distance he was from J.O. and the defendant when he made the observation which he described. He said he turned from “up the hill” and J.O. was on her feet with the man holding her shirt. He did not observe J.O. either falling or being on the ground.
3.3 P.A. – Mother of J.O.
39The complainant’s mother did not witness any contact between Mr. Oppong and her daughter.
40She was at the top of the hill with a group of other adults when her son ran towards her, followed shortly by Mr. Oppong. As the defendant approached her, she said she looked past him to see her daughter “on the playground floor.”
41Initially in her testimony Ms. A. testified that J.O. was crying when she observed her. Later she testified that she wasn’t certain when her daughter started to cry, and said it might have been after she called the police. Ms. A. testified that she didn’t speak to her daughter before she called police. She indicated that she called because so many people were saying “call the police.”
42Ms. A. testified that Mr. Oppong approached her angrily, with his son in his arms. She said he was yelling and using profanity. Mr. Oppong’s wife was also present and Ms. A. described her as apologetic. Ms. A. said she decided to call the police. Mr. Oppong told her to “go ahead” and kept walking. After Ms. A. spoke with police, she took her daughter to the hospital. She saw the Oppong boy there as well, and wondered why he had gone as in her mind there was nothing wrong with him.
4.0 Defence Evidence
4.1 Peter Oppong
43Mr. Oppong testified that upon his arrival at the base of the hill at the park, he saw his son W.O. being chased and then pushed to the ground by a mob of older children, which included the complainant J.O. and three older boys. The defendant said that once his son was on the ground, he saw the four other children proceed to deliver a flurry of vicious and coordinated blows to his child’s head and body with their hands and feet. He described the attack as being so severe that he said “they want to kill him.”
44He said he stopped the car in the middle in the road, exited his car and yelled at the children “why are you beating him.” He denied that he was menacing towards the children, or that he ran towards them aggressively. Mr. Oppong maintained that he and his wife calmly disembarked their car, walked towards their son and asked him what happened. His son’s face was covered in sand and he was crying. His clothes were all dirty. Mr. Oppong said he held his son’s hand and calmly walked up the hill to discuss the issue with the other parents.
45In cross-examination, Ms. Ida put certain portions of his police statement to him in which he had apparently described the attack on his son differently. For instance, the Crown directed the defendant to a passage in his statement wherein he had alleged that he had seen “four kids holding his neck and one holding his legs,” and another where he had stated that he “didn’t know how many boys or girls.” Mr. Oppong maintained that he had given police essentially the same account as he had offered to the court.
46The defendant testified that he saw the complainant J.O. fall down as she was running up the hill. He said he heard her crying but didn’t know the reason why she had fallen. He proceeded uphill and was approached by J.O.’s mother, who was coming towards him. Mr. Oppong adamantly denied ever touching J.O. in any way.
47The defendant testified that he directed his elder son Marvin to take his youngest son W.O. to the hospital, because his son had a scratch on his face which was bleeding, sand in his eyes, and was complaining of something being wrong with his foot.
4.2 W.O.
48W.O. was nine years old when he testified, and was seven at the time of the incident. He is the defendant’s youngest child.
49W.O. testified that he was playing on the swings with his 13-year-old sister at the park when one older girl and three older boys asked him to leave the play area. He said that when he refused, the children all picked up handfuls of sand and started throwing it at him. He responded in kind. They persisted, and chased him out of the playground while continuing to throw sand at him.
50W.O. said that he fled down the grass hill towards the road. The group pursued him, and he felt himself being pushed to the ground by one of them. W.O. testified that he scraped his head when he fell, and the group started “kicking and beating” him when he was on the ground, facing down. He got a lot of sand in his eyes.
51W.O. described seeing his family arrive in the car at the base of the hill. His father, mother and older brother exited the car and came to his side. He said his father yelled “why are you beating him?” to the children, who scattered.
52W.O. said when the kids ran away, the girl fell down on the hill, and started crying right away.
53W.O. testified that his father never touched any of the other children, including the complainant. He saw his parents talking to the girl’s mother after she fell, then he went with his brother to the hospital.
4.3 Emilia Asieduaa-Bedeiko
54Ms. Asieduaa-Bedeiko is the defendant’s wife, and W.O.’s mother. The narrative which she related was generally consistent with that of the defendant. She described picking their son Marvin up from church and then returning to the park to see kids running from the top of the hill to the bottom, and then realizing that the lone child on the ground was her son. She screamed and her husband stopped the car. The pack of older children who had been beating W.O. dispersed when her husband exited the car and called out to them. She said she and her husband picked up W.O. and they walked up the hill together.
55Ms. Asieduaa-Bedeiko testified that she saw the girl fall down, and said she and her husband met up with the child’s mother as they reached the top of the hill. She denied that her husband ever touched the girl and rejected the suggestion that she had apologized for her husband’s conduct to the complainant’s mother. She maintained that she was upset only by the mistreatment of her son.
4.4 Marvin Opoku-mpiani
56Marvin is the defendant’s eldest son. He is 19. Marvin testified that he was at a youth conference at his church on the day in question. His said parents picked him up at church and they drove to the park to rejoin his younger siblings at the park.
57Marvin described pulling up to the park and hearing his mother scream when she saw W.O. on the ground. He said he saw his brother getting “beaten up” by a group of 3 boys and 1 girl. Marvin said the kids were using both their hands and feet to strike his brother, who was on his stomach. Some of the kids were throwing sand at him.
58Marvin testified that his father stopped the car, and they all got out. His father was calling out “why, why” and the kids all ran away before they got to his brother.
59Marvin said he saw the girl fall as she was running up the hill. He testified that after she fell, she cried then stood up right away and continued up the hill while holding her hand. He said that his father picked up W.O. and their family walked together up the hill. They were met by other parents and things got “heated.”
5.0 Findings of Fact and Credibility Assessments
5.1 Causation
60The nature of the complainant’s injury in this case was not disputed: the only debate was over how it was caused.
61Upon her examination at the Emergency Department at Etobicoke General, J.O. was sent for an x-ray of her right wrist, for which she complained of pain. Dr. Bahl described the single injury seen on the x-ray as a “buckle” fracture, which can be caused by any kind of force applied to the bone. The fracture was located 2.5 cm above J.O.’s wrist.
62Buckle fractures are also referred to in medical nomenclature by the acronym “FOOSH” said to be descriptive of their most common cause: “Fall On Out Stretched Hand.”
63Dr. Mamela, the radiologist who reported on the complainant’s fracture, explained that buckle fractures most often occur from axial loading through the palm, which occur vey commonly in children when they fall on their hands.
64Dr. Mamela also agreed that in circumstances where a wrist is grabbed and then twisted, there is often a related injury pattern or dislocation seen at the patient’s elbow as well. Dr. Mamela explained that since the wrist and the elbow are connected, “things that happen at one end tend to happen at the other.”
65Dr. Mamela confirmed that there was no injury to the complainant’s elbow observed.
66Simply put, the medical evidence proffered in this case does not support the Crown’s theory of causation of J.O.’s injury being attributable to Mr. Oppong. If anything, it detracts from it. The radiologist’s evidence was that the type of injury seen in the complainant’s wrist usually occurs from a forward fall, the occurrence of which is an undisputed fact in this case. Moreover, Dr. Mamela testified that when there is a twist to a wrist there “tends to be all sorts of injury patterns that happen at the elbow,” for which there were none in J.O.
67On her own evidence, J.O. said she was running quickly and fell suddenly uphill, trying to get away from the defendant who was yelling at she and her friends. She testified that she put her hands out and fell on her palms. The complainant’s description of her fall aligned perfectly with what two doctors described as the most common mechanism for causing a buckle fracture.
68The absence of any evidence of a related injury pattern in the elbow was another issue casting doubt on the Crown’s theory that the defendant caused the injury by twisting J.O’s wrist. While not determinative of the issue of causation, this evidence failed to support the Crown’s proof of causation as an essential element of the offence charged.
69Therefore, the only evidence upon which the Crown can rely in seeking to prove the defendant’s responsibility for the complainant’s injury is the testimony of J.O. and E.N. I will now turn to the credibility analysis of the defence and Crown witnesses.
5.2 Credibility Analysis
70A judge is entitled to accept all, some or none of a witness’ evidence. In Mr. Oppong’s case, I believed some, but certainly not all of his testimony.
71In cross-examination, Mr. Oppong’s description of the supposed beating of his son by the other children became ever more elaborate, and violent. The defendant described the positioning of each of the combatants on top of, beside or standing over his son with increasing detail. Yet Mr. Oppong had no choice but to agree that many of these details were never offered by him in his police statement.
72The obvious points of exaggeration in the defendant’s testimony led to credibility concerns with his evidence. The most obvious of these is of course his description of a “minute or two” of slaps, punches and kicks being levelled against his child by four older, bigger children. Quite simply, this portion of his evidence (and equally of his other family members) couldn’t possibly be true – as young W.O. suffered no more than a single scratch to his forehead, as well as an unfortunate layer of sand to his face resulting from the exchange. The blister-like lesion to his one toe was a small abrasion which did not appear to be the product of repeated blunt force. It was quite apparent that the defendant was exaggerating if not inventing the details of the other children’s aggression towards his son in his account, perhaps in an effort to deflect or neutralize the allegation against him. I did not believe this portion of the defendant’s account, and it caused me serious concern with respect to my assessment of the rest of his evidence.
73Similarly, while there was general consistency between the defendant and his family members’ accounts of what they witnessed, there were a number of discrepancies which raised concerns. While the defendant, his wife and son Marvin all claimed to have seen the supposed attack of W.O. at precisely the same time from the same distance, each of them described the positions of the various combatants differently. Most notably, the defendant’s wife said that J.O. was pinning her son to the ground by laying on top of him with her whole body when they arrived: a rather notable detail that I have difficulty believing the others would have missed, had it occurred. In a similar vein, their accounts of how J.O. fell down and whether she stayed down or got back up varied, once again raising concerns with the veracity of individual accounts.
74On the issue of whether Mr. Oppong approached and had any physical contact with the complainant, the testimony of the defendant and his three family members was entirely consistent. They all patently denied that the defendant touched her at all, and maintained that they heard J.O. cry or refer to pain in her wrist immediately after she fell.
75Their evidence on this issue is logically consistent with J.O.’s own evidence that she fell on her outstretched hand, as well as the medical evidence suggesting that this type of fall is the most common mechanism for the infliction of a buckle fracture.
76I have carefully considered the evidence of J.O. and her friend E.N. related to the allegation that Mr. Oppong approached and angrily twisted J.O.’s arm after she had fallen. Were this evidence to be accepted, it would minimally establish that the defendant had assaulted J.O., even if her wrist had already been fractured by the fall.
77J.O. and E.N. both presented as bright, attentive and impressively polite children for their ages. They listened carefully to questions before giving their answers, and were able to maintain their focus on the proceedings without any sense of distraction.
78However, both children were noticeably apprehensive about admitting to any wrongdoing towards W.O. on the day of the incident despite the incontrovertible evidence of their having ganged up as a group on a smaller child who was by himself. J.O. testified that they “followed” W.O. out of the playground, rather than admitting that he had been chased. She maintained this position despite having to acknowledge that she and her group had each picked up handfuls of sand to throw at W.O. while he “backed out” of the park, and that by the end of the incident W.O. was essentially covered in sand.
79E.N. was so avoidant of acknowledging the truth of his participation in what was obviously an unfair fight that he could initially only admit to having done a generically “bad thing.” The very clear undercurrent of the testimony of both young witnesses was their hope of not getting in trouble for anything that they might have done at the park that day. It appeared to me that they maintained a certain level of this apprehension throughout their testimony.
80While this response might be seen as a perfectly natural one for children to take when a conflict between them erupts, it creates a concerning risk of a potential motive to fabricate in an effort to deflect any blame.
81Another inconsistency raised further concern with the children’s narrative. J.O. testified that when she fell and was subsequently assaulted by the defendant, she couldn’t see her friend E.N. She believed he was hiding in the bushes. However, E.N. testified that he was running up the hill, just ahead of J.O., and that he happened to turn and see the assault occurring when he reached the top and realized that she wasn’t there. I am troubled by the inconsistency of their accounts, and have difficulty reconciling E.N.’s claim of having seen the assault with his evidence that he was running fearfully in the opposite direction.
82In the final analysis, I am unable to achieve any level of certainty about what happened that day in the park, beyond one inescapable fact. That is, that every person involved misbehaved to some degree. Mr. Oppong included. I have no difficulty rejecting his evidence that he remained calm and was merely inquisitive of the children who had ganged up on his son. Those children should have known better than to treat another younger child the way they did. But I suspect that Mr. Oppong did, in fact, yell at the children in a way that frightened them and caused them to scatter. And very likely chased them with his anger still raging. I strongly suspect that Mr. Oppong behaved in a manner that was equally immature and inappropriate for an adult, and he in particular should have known better and behaved more responsibly. I have similarly serious concerns that the testimony of Mr. Oppong’s family members was motivated by their desire to tailor evidence consistent with his, as opposed to adhering strictly to the truth.
83However given the frailties of the Crown witnesses’ evidence, and the absence of any objective confirmatory medical evidence supporting of the Crown’s theory of causation in relation to the complainant’s injury, I am left with a reasonable doubt as to whether the defendant committed the offence.
84This was a very difficult case. A child was badly injured in the moments following the defendant’s intemperate outburst towards her group. J.O. would have had every good reason to be fearful, and to run from the defendant. She should never have been made to feel that way by an adult. The physical injury which resulted as well as any continuing anxiety that she may rightly feel from this experience were totally unwarranted.
85Mr. Oppong should be ashamed of how he behaved that day in the park. He ought to know that when children are misbehaving it is a parent’s duty to maintain their calm and to model self-control. He failed to do so.
86However, the standard of proof in a criminal trial is an appropriately very high bar. Convictions can only occur where the evidence leaves no reasonable doubt in the trier’s mind as to all of the elements of proof. In this case, a reasonable doubt remains in mine, making Mr. Oppong entitled to an acquittal.
87The charge is hereby dismissed.
Released: October 7, 2021
Signed: Justice A. Dellandrea
Footnotes
- R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.