Court Information

The Ontario Court of Justice

Date: 2016-04-13

Court File No.: Durham Region 998 14 12023

Parties

Between:

Her Majesty the Queen

— And —

David Lang

Judicial Officer and Counsel

Before: Justice De Filippis

Heard on: October 5, 2014 & April 7, 2016

Reasons for Judgment released on: April 13, 2016

Counsel:

• M. Newell — counsel for the Crown
• S. Samet — for the defendant

Reasons for Judgment

De Filippis, J.:

[1] The defendant was tried on an Information containing four counts: Assault causing bodily harm; Threat to cause bodily harm; Weapons dangerous (an axe); and Theft under (a computer hard drive). The complainant is Thomas Whitehead. All offences are said to have occurred on February 10, 2014 at the City of Oshawa.

[2] The following facts are not in dispute: The complainant was living with Ms Baldwin. She had previously been in relationship with the defendant. On the day in question, Ms Baldwin drove the defendant to her home so he could retrieve his martial arts equipment. Before doing so, she told the complainant not to be present for this event. He declined to leave as he was sick and in withdrawal from drug use. The complainant and defendant became involved in a physical confrontation. The complainant suffered a broken jaw that required surgery and the insertion of a metal plate. At some point, the complainant produced a knife from his pocket. It was grabbed by the defendant and thrown outside the home. It was later found in the snow.

[3] At the time of these events, Thomas Whitehead was unemployed. He has a criminal record with convictions for possession of cocaine, impaired driving and drive while suspended. For the preceding 13 years he had been prescribed oxycodone for a herniated disk. He testified that in addition to fourteen 40 mg tablets per day, he also consumed cocaine about once per week. For several days he had not ingested oxycodone (or cocaine); he had a doctor's appointment on the day in question to renew his prescription. The complainant "went into withdrawal"; this made him sick including loss of appetite and fatigue.

[4] The complainant conceded that Ms Baldwin had told him several weeks before that she wanted him out of her home. He denied this was because of his drug use and non-payment of rent. He said she agreed to give him time to find another place. On the morning of the events in question, Ms. Baldwin sent a text message to the complainant and told him the defendant would arrive to pick up his property. She asked him to leave the home as the defendant "was pissed". The following exchange occurred:

Complainant: No I'll stay upstairs, I'm a big boy.

Baldwin: I don't want this, I just want peace, I don't [want] you in the house…..you offered before to sit at coffee cultures

Complainant: Yes but I'm sick…I'm not here to cause trouble but I'm not feeling well.

[5] According to the complainant, he was upstairs in a bedroom when the defendant and Ms. Baldwin arrived. The following events occurred: He heard the defendant call his name in an "aggressive voice" and, from the top of the stairs, saw him with an axe in hand. He described it as an older axe with a rusted blade and duct tape on the handle. The defendant said, "Come downstairs, we need to talk". The complainant was worried by the sound of his voice and the presence of the axe and said "what do you want to talk about". When the defendant replied that the complainant, "had to go [from the home]", the latter said, that that was a matter between him and Ms Baldwin. The defendant said "I'm here on her behalf' and came upstairs, with axe in hand. The defendant said, "You have to go now". The complainant responded, "What about the axe". The defendant said, he did not need it and threw it aside. He then grabbed the complainant's jacket to escort him out. The complainant grabbed it back. The defendant punched him once, on the left side of his face under the ear. The complainant fell back onto the bed. He removed a knife from his pant pocket "for protection". The blade was still folded into the handle and the parties "wrestled over it for about 30 seconds". The defendant took the knife away from the complainant and placed him in a headlock. The latter said, "You have broken my jaw, let me go". The defendant walked downstairs, followed by the complainant. He went out the front door, threw the knife into the snow bank, and left.

[6] The complainant said that after he was hit in the jaw, the defendant said, "now you can tell your friends you got your ass kicked by an MMA fighter" and added, that "if you call the police, I'll make it 10 times worse". The complainant testified he did not go to the police until four days later, after he had had surgery. It took almost eight weeks for him to recover and he still has a scar on his face. He said he decided to ignore the threat after realizing the seriousness of his injury.

[7] The knife in question was filed as an exhibit. It has a four inch handle and a three inch blade. A photograph of it in the snow bank was taken by police. It is depicted with the blade folded, not exposed. After these events, the complainant noticed his computer hard drive was missing. He said Ms Baldwin told him the defendant had taken it.

[8] The complainant denied using any drug on the day in question. He insisted he was in withdrawal. He agreed this made him very sick but rejected the suggestion it would impair his ability to observe, function and remember. The complainant conceded that in his prior statement to the police, he reported that the defendant had taken his knife from him, but did not specify he had tried to use it in self defence and that they struggled over it for about 30 seconds. He also admitted he did not mention the threat (about going to the police) until the end of the police interview and only because the officer asked why he had waited four days to report the incident.

[9] David Lang is employed as a cook. He has a serious criminal record but it ends 12 years ago, in 2004, when he was a young man. The defendant testified that he had been in an eight year relationship with Ms Baldwin and that he left after he learned she had was having an affair with the complainant. They remain friends; she is his surety in this matter. The defendant testified he is a martial arts student and has "a blue belt", the second level.

[10] According to the defendant, he did not know the complainant was in the home when he arrived and was surprised to see him downstairs in the living room. These events then occurred: The complainant screamed, "what are you doing here, get out". He rushed at the defendant and pushed him up against the wall. The defendant threw the complainant's jacket out the door, hoping the complainant would follow. Instead, when he turned round, he saw the complainant with a knife in hand. With one continuous manoeuvre, the defendant used one arm to block any attack by the knife and, with the other hand, he punched the complainant in the face. He grabbed the knife from the complainant and threw it outside.

[11] The defendant testified that the confrontation was quick and short. He added that he immediately regretted the punch, but had feared for his safety; "I hit him, took the knife, and put him out the door. That ended the matter."

[12] The defendant said that although Ms Baldwin's affair with the complainant "affected" him he was not bitter; "I was looking forward to moving on with my life". He denied seeing an axe or using it on day in question. The defendant agreed that the complainant held the four inch knife handle in a clenched fist, exposing the three inch blade. He gave vague answers when pressed about how he grabbed that knife from the complainant without cutting himself. He did not refute the demonstration, by Crown counsel, that the knife requires two hands to open and close the blade from the handle. The defendant could not explain why, on his version of events, the knife is depicted (in the photograph) with the blade folded into the handle outside in the snow bank.

Legal Analysis

[13] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D., 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D., [2004] O.J. 2086 (O.C.A).

[14] Defence counsel emphasized the inconsistencies between the complainant's trial testimony and statement to the police about the knife. She also noted that his state of withdrawal would make him irritable and affect perception and memory. Counsel suggested the defendant gave straightforward account and was a persuasive witness.

[15] Crown counsel argued that the complainant's failure to report the struggle over the knife is not significant as, on his version of events, it was produced after he had been assaulted and he was quickly relieved of it. Counsel also pointed out that text messages prove the complainant's state of mind; he was sick and did would stay in his room so as not to interact with the defendant. Lastly, the Crown submits that the location and state of the recovered knife confirms the complainant's testimony and undermines that of the defendant.

Credibility Assessment

[16] I find the complainant to be a credible and reliable witness. I am mindful of his criminal record, high dosage of oxycodone, and abuse of cocaine. There is no doubt that he was in withdrawal but his trial testimony shows that sickness did not impair perception and memory. He provided a clear and coherent account of what transpired. The limited independent evidence – the text messages and the photographs of the knife – confirm his evidence. The text messages do not show a hostile person, but one who wanted to stay in his room, away from the defendant. The condition of the knife in the snow – with blade closed - supports his assertion that it was taken from him in that state and that it was not used to attack the defendant. In these circumstances, I accept Crown counsel's suggestion that I need not be troubled by the fact that he told the police the defendant took his knife, but did not disclose the struggle over it.

[17] There is no issue with respect to the application of the law of self defence. On the defendant's version of events he was entitled to act as he did. Thus, notwithstanding my observations about the complainant's evidence, I must acquit if I believe the defendant or he raises a doubt. I agree with Defence counsel that her client was a persuasive witness but I restrict this observation to his evidence in chief. He did not fare well in cross-examination.

[18] I reject the defendant's testimony because of two points – both involve the knife. On his account, he was confronted with a hostile man, holding a knife with the blade exposed, and with one motion, he grabbed the knife, punched the man in the jaw, and threw the knife outside. That could not have been done without cutting himself on the blade. Moreover, it is beyond question that the knife requires two hands to fold the blade into the handle. The knife was found in the snow bank in that state. The defendant did not suggest he closed the blade before throwing it outside. The photograph of the knife outside the home undermines the defendant's trial testimony on a critical issue – whether he needed to act in self-defence.

[19] Defence counsel recognized the difficulty raised by the two points with respect to the knife and addressed this in submissions. She suggested that it is possible the knife blade was never exposed and, in the heat of the moment, the defendant thought it was and grabbed it and threw it outside in that state. That possibility does not rest on an evidentiary foundation. The law commands that I acquit if I have a doubt, based upon reason, not speculation.

Verdict

[20] Ms. Baldwin told the complainant several weeks before these events to move out of her home. He had not done so. I believe the complainant's evidence that the defendant entered the home in an aggressive manner, with axe in hand, demanding that he leave. I find that he assaulted the complainant as described, relieved him of the knife and left the residence after threatening more violence if he went to the police. I find the defendant guilty of assault bodily harm, weapons dangerous, and threatening bodily harm. I have no doubt Ms Baldwin told the complainant that the defendant stole his hard drive. That hearsay statement does not prove that fact. He is acquitted of that offence.

Released: April 13, 2016

Signed: "Justice J. De Filippis"