Court File and Parties
Ontario Court of Justice
Date: 2018-10-01
Court File No.: Ottawa 18-R1946
Between:
Her Majesty the Queen
— and —
Abdulaziz Al-Enzi
Before: Justice P.K. Doody
Heard on: June 29, August 29, and September 24, 2018
Reasons for Judgment released on: October 1, 2018
Counsel:
- Marie Dufort, counsel for the Crown
- Joseph Addelman, counsel for the accused
DOODY J.:
Overview and Issues
[1] The defendant Abdulaziz Al-Enzi is charged with assault with a weapon (particularized as a jailhouse shank), assault causing bodily harm, and aggravated assault.
[2] The complainant and the defendant were incarcerated in the 4 wing of the maximum security section of the Ottawa-Carleton Detention Centre on April 19, 2018. They were both in the dayroom that day, along with 6 other inmates. An altercation occurred among inmates. The complainant was assaulted and suffered significant injuries.
[3] The defence position is that the complainant's injuries were caused by Houssine Ali and Ali Elenezi, two other inmates who assaulted the complainant during the altercation. Both Mr. Ali and Mr. Elenezi testified and said that they had assaulted the complainant with short pencils grasped in their fists, which they had hidden under their clothes before the fight.
[4] The complainant emerged from a group of inmates in a corner of the dayroom underneath a television set mounted on the wall. A photo taken shortly thereafter shows that he had two cuts on his face which were bleeding significantly, causing blood to drip and cover his chest and stomach. One cut started on the bridge of the man's nose and ran in a straight line below his eye and across his cheek. The other cut was on his right cheek extending roughly horizontally about 2 inches long from the edge of his moustache.
[5] A photo taken the week before trial shows scars on both cheeks, one of which runs at an outward 45 degree angle from the inside corner of his left eye to a spot which is at the level of the bottom of his nose. The other scar is less significant but is visible on his right cheek.
[6] Two videos recorded on cameras mounted on the wall of the dayroom show the altercation. The complainant testified that he did not know who cut him on the cheeks. No pencil and no other weapon was recovered.
[7] If I find that the Crown has proven beyond a reasonable doubt that the defendant assaulted the complainant with a jailhouse shank, he is guilty of assault with a weapon.
[8] If I am satisfied beyond a reasonable doubt that he assaulted the complainant but am not satisfied beyond a reasonable doubt that he was armed with a jailhouse shank, I must acquit him of assault with a weapon but convict him of the included offence of assault unless the fight was consensual.
[9] If I am satisfied beyond a reasonable doubt that both cuts were wounds or maimed or disfigured the complainant, and that the defendant assaulted him and caused at least one of those cuts, I must convict him of aggravated assault.
[10] If I am not satisfied beyond a reasonable doubt that both cuts were wounds or maimed or disfigured the complainant, but I am satisfied beyond a reasonable doubt that one of the cuts met that standard, I must determine whether the Crown has proven beyond a reasonable doubt that the defendant's assault resulted in that cut. If so, the defendant will be guilty of aggravated assault and assault causing bodily harm.
[11] If not, but I am satisfied beyond a reasonable doubt that the defendant's assault resulted in one of the cuts on the complainant's face, the defendant will be guilty of assault causing bodily harm, because both cuts resulted in harm which was more than merely trifling and thus amount to bodily harm.
[12] It is therefore necessary for me to determine whether the Crown has proven beyond a reasonable doubt:
(a) that the defendant assaulted the complainant;
(b) that he used a jailhouse shank;
(c) that the defendant's assault (if there was one) caused one or both of the cuts;
(d) that both cuts were wounds or maimed or disfigured the complainant; and
(e) if only one cut was a wound or maimed or disfigured the complainant, that the defendant's assault caused that cut;
(f) if the defendant's assault did not cause that wound, that the defendant's assault did cause one of the cuts; and
(g) if the defendant's assault did not cause one of the cuts, the assault he did engage in was part of a consensual fight.
The Evidence
(a) Video
[13] There were two video cameras – one in each of two diagonally opposite corners so that the entire room could be seen at all times on one video or the other. The videos are of good quality. The videos can be played in actual time or in slow motion. The videos were shot at a rate of 15 frames per second, and could be stopped at any frame. The image can be enlarged to zoom in on a particular part. Even when zoomed in a great deal, the image remains relatively sharp and defined so details can be discerned. The videos are timestamped to 1/1000 of a second. There is no audio.
[14] The inmates were identified by Scott Munro, the director of security at the detention centre. They could also be identified by pictures of each inmate entered into evidence on consent.
[15] The videos were played many times during the trial, in both normal speed and in slow motion. All witnesses were given an opportunity to comment on and describe what they saw happening on the videos. The inmate witnesses were asked to explain what they were doing in the videos. Counsel played them during submissions and made submissions on what they showed.
[16] At the end of the day, however, the issue is what the videos showed, not what a witness testified he believed it showed. In order to determine what the videos showed, I watched them many times after the trial was over, in both normal speed and in slow motion. I frequently stopped the video to get a better understanding. I zoomed in on details.
[17] The dayroom is rectangular. I did not hear evidence about its size. At one end, there is a door and, beside the door, a short section of wall and then two glass panels starting 2 or 3 feet above the floor and running to the ceiling. There is an open doorway beside the glass panel furthest from the door which allows entry into a washroom behind the glass panels. There is a toilet in the washroom. An opaque strip runs along the panel from approximately waist height to shoulder height, making it impossible to see on the video more than the head of someone sitting on the toilet. This wall, with door, two glass panels, and the entry to the washroom, is the shorter wall.
[18] The longer wall is half again as long as the shorter wall. A television is mounted in the corner at the opposite end and on the same side as the entry doorway into the washroom.
[19] The video taken from the camera diagonally opposite the doorway to the washroom (which I will call the first video) shows that there were 8 inmates in the room. The defendant can be seen standing in the washroom doorway. The complainant walked into the washroom past the defendant. They stood facing each other and having a discussion. They both raised their arms and the defendant punched the complainant. The complainant fought back. They tussled briefly but could not be seen clearly because they are blocked by the opaque panel and a group of 3 inmates crowding around the doorway. They fell to the floor and then got up. The complainant remained in the washroom and the defendant left. The complainant appears to be arguing with a group of 3 inmates in the doorway, including the defendant.
[20] The complainant then removed his shirt. Another inmate, Houssine Ali, then ran into the washroom and punched the complainant with his right hand. He can be seen hitting him on the upper portion of the complainant's head, in the area of the forehead, driving the complainant's head back. After the punch, the complainant moved back towards Mr. Ali. He and Mr. Ali are obscured by the group of inmates at the doorway.
[21] Mr. Ali was called as a witness by the defence. He testified that he had a pencil in his shorts and that as he approached the doorway he took the pencil out. He said that the pencil was in his right hand when he punched the complainant. He was asked where he hit him and he replied "his face". He was asked what happened to the pencil. He testified "I think as soon as I threw the punch on the guy I lost it."
[22] The first video shows that Mr. Ali was in the group of inmates standing in the dayroom in front of the doorway to the washroom before and during the altercation between the defendant and the complainant in the washroom. He had his hand in the waistband of his shorts while the defendant and the complainant were arguing. He removed it 60 seconds before he punched the complainant. His hand was open and not curled into a fist with two or more fingers clenched together. His hand can be seen fully open 29 seconds later. Nine seconds before he punched the complainant with his right hand, his right hand can be clearly seen with all fingers and his thumb splayed outward, not holding anything. The video shows his right hand during that 9 second period. He did not put it back in his shorts.
[23] Mr. Munro testified that the inmates sometimes make weapons using things available to them, such as plexiglass pried off walls, toothbrushes, sharpened combs, and razor blades melted into plastic pencils. He was asked if small pencils such as are used on golf courses would be readily available to inmates. He testified that they would be.
[24] All the inmates other than the complainant backed away from the doorway after Mr. Ali punched the complainant. The complainant came out of the washroom, kicking at the inmates, and ran down the wall towards the television set, out of the view of the camera recording the first video.
[25] The second video was recorded by a camera diagonally opposite the television set. On the second video, the complainant can be seen running towards the corner with the television, where a group of three inmates are fighting amongst themselves. In that group was Ali Elenezi. As the complainant was pushed into the corner beneath a shelf under the television, Mr. Elenezi ran toward him and swung his right arm toward the complainant. His fist was clenched.
[26] Mr. Elenezi testified that he had a small pencil in his fist when he hit the complainant. He testified that he hit the complainant in the face with the pencil and that his punch was not straight on, but went upwards. In cross-examination, he said he was "pretty sure" that he had hit him in the face. He agreed that ordinarily, an inmate who has a weapon would flush it down the toilet right away, so that it would not be found by the guards. He testified that he kept the pencil on his person until after the guards had entered the day room and taken them all to their cells without searching them. He said that after he returned to the cell he flushed it down the toilet before he was searched. In cross-examination, he agreed that ordinarily he would flush a weapon down the toilet immediately after he had used it to assault someone, but said that he did not have enough time to do so that day. He said "with everything going on, the COs [correctional officers] rushing in, I didn't have time to flush it."
[27] At the time the complainant ran toward the television set, the defendant was in front of the door leading out of the dayroom, on the opposite end of the wall from the doorway into the washroom. He can be seen on the first video holding what appears to be a white object in his right hand. He ran toward the corner with the television. He can be seen removing, with his left hand, a white covering from the object held in his right hand. The white covering can be seen drifting to the floor in the way in which tissue paper would fall. It unfolded as it fell. It was approximately the size of 1 or 2 pieces of toilet paper. The first video shows the defendant running toward the television set with his right hand up after the white covering fell to the floor.
[28] The second video shows the defendant running toward the complainant. Immediately after the complainant was punched by Mr. Elenezi, the defendant moved toward the complainant and drew his right hand across the complainant's left cheek from his mouth toward his ear. The defendant then grabbed the complainant's head in an arm hold. His right hand can be clearly seen moving across the left side of the complainant's face.
[29] After the defendant did this, the complainant moved to the corner opposite the television, directly opposite the door on the washroom wall and diagonally opposite the doorway into the washroom. The fight among the inmates stopped.
[30] The defendant went into the washroom. He can be seen on the first video bending down over the toilet and then straightening up. The opaque area of the glass prevented the video camera from recording an image of what he did while bending down.
[31] The first video also shows that Mr. Elenezi went to the area in front of the washroom doorway immediately after the fight stopped, 11 seconds after he punched the complainant. Mr. Elenezi stood in front of the doorway while the defendant bent down over the toilet. He did not enter the washroom at any time but stood in that area for 50 seconds before the guards entered.
[32] After the defence had rested its case and Crown counsel indicated that she did not intend to call any evidence in reply, I reserved my decision. I reviewed the videos in detail, as I have indicated. I noticed that the video showed Mr. Ali splaying his fingers just before punching the complainant, and no pencil being in his right hand. I noticed Mr. Elenezi standing in front of the washroom doorway for 50 seconds before the guards entered. I wrote to counsel, advising them of what I had seen. I told counsel that since neither counsel had commented on these aspects of the videos when they were played in court, and neither Mr. Ali nor Mr. Elenezi had been asked about them, I wanted to hear submissions from counsel on them.
[33] I also indicated that I wanted to hear from Mr. Addelman, the defendant's counsel, on whether he wished to bring a motion to reopen the defence case to recall Mr. Ali and/or Mr. Elenezi to give evidence on these aspects of the videos. Mr. Addelman declined to bring a motion to recall Mr. Ali, advising that he had been unable to locate him. He did bring a motion to reopen his defence case to recall Mr. Elenezi. I granted that motion, relying on the decision of the Ontario Court of Appeal in R. v. Hayward (1993), 86 C.C.C. (3d) 193.
[34] Mr. Elenezi was recalled and gave more evidence on September 24, 2018. In the course of that evidence, he was shown the videos again. In examination in chief, he repeated his evidence that he did not flush the pencil down the toilet when he was standing in front of the washroom door because he did not have time. He said that the correctional officers were rushing to the door. In cross-examination on this point, he repeated both these points. When pressed, and the length of time he stood in front of the door was pointed out to him, he said that his "adrenalin was running" and he "was not thinking right". He also testified that he did not flush it because he would be seen on video. He had not said this before, either during his evidence when he was first called or during examination in chief when he was recalled.
[35] He also testified that he removed the pencil from inside the opening to his prison jumpsuit, which was held shut by Velcro strips, just before rushing toward and punching the complainant, and that he put it back in his suit some 9 seconds later on the opposite side of the room. In cross-examination, the video was played again to him. It was suggested that his right hand could be seen clearly open with no pencil in it just after he had struck the complainant. This occurred several seconds before the time when he had testified that he returned the pencil to his clothing.
[36] A careful review of the video in slow motion and with the image zoomed in to show Mr. Elenezi's hand makes it clear that, immediately after punching the complainant, he placed his hand on the back of another inmate. All fingers and his thumb are splayed. There is no pencil.
[37] He testified in re-examination when he was recalled that he held the pencil along the palm of his hand, with the tip of the pencil sticking out. He demonstrated that he swung his hand with the tip of the pencil sticking out in a movement across his chest, almost horizontal to the ground. The video shows that he punched the complainant. He did not swing his hand across his chest in a horizontal motion, as he had testified when he was recalled. Furthermore, his evidence when he was recalled about how he struck the complainant was not the same as his evidence when he first testified.
[38] The first video shows the complainant's face and chest six seconds after he was punched by Mr. Ali, and 10 seconds before he was assaulted by Mr. Elenezi and the defendant. He had no blood on his face or chest at that time. The second video shows the complainant immediately after being assaulted by Mr. Elenezi and the defendant. That was 28 seconds after he had been punched by Mr. Ali. No blood can be seen on his face or chest. Nine seconds later, blood can be seen on the complainant's face and chest.
[39] The complainant was called as a witness by the defence. The video was played while he was in the witness box. The complainant testified that Mr. Ali hit him in the face in the washroom, but he said he did not recall if either the defendant or Mr. Elenezi hit him while he was in the corner under the television. In cross-examination, the video showing the altercation under the television was played. He agreed that the defendant was hitting him, and that he had extended his hand toward the defendant's hand 2 or 3 times.
Analysis
(a) Did Mr. Ali and Mr. Elenezi have a pencil in their fists?
(i) R. v. W.(D.) applies to this issue
[40] The analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742 does not only apply where the defendant testifies and gives evidence that, if true, would mean that he or she is not guilty. As Paciocco J. put it in a recent article, it applies to any evidence (whether arising from the testimony of the defendant, defence witnesses, or from the Crown case) which, if true, is
(a) capable of preventing the Crown from proving beyond a reasonable doubt an element of the offence, or
(b) capable of preventing the Crown from disproving beyond a reasonable doubt an element of a defence that is in play (other than mental disorder, automatism or extreme intoxification); and
(c) that evidence must be evaluated for its credibility and/or reliability before it can be acted upon. (Paciocco, D., "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment", (2017) 22 Cdn. Criminal L.R. 31)
[41] The W.(D.) analysis is designed to ensure that triers of fact make their factual findings in a way which ensures adherence to the bedrock principles that the Crown must prove every element of the offence and that the defendant is presumed innocent until proven guilty beyond a reasonable doubt. It does not, however, as Paciocco J. notes in his article, apply to facts other than those he sets out.
[42] In R. v. D.(B.), 2011 ONCA 51, Blair J.A. wrote at paragraph 114 that the W.(D.) analysis must be performed when "on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case." In that case, the defendant was charged with incest. The Crown alleged that the defendant's co-accused was her eldest child, and that the two accused were the parents of the defendant's three youngest children. The Crown proved by DNA evidence that the two accused were the parents. A witness had testified that the defendant's eldest child was dead, and that her co-accused was a completely different person. Blair J.A. held that the trial judge erred when he failed to tell the jury that they must find beyond a reasonable doubt, following the W.(D.) analysis, that the defendant's co-accused was her eldest child, because that was a vital issue part of the Crown's case. That fact was vital to the Crown's case because if the co-accused was not her child, there would be no evidence of incest.
[43] In this case, there is a live issue as to whether Mr. Ali and Mr. Elenezi had pencils in their fists when they assaulted the complainant. If they did not, neither of them could have caused the complainant's injuries, which the photographic evidence establishes could only have been caused by a sharp object. Thus, this fact is crucial to the defence submission that the injuries were caused by someone other than the defendant.
[44] In order to find the defendant guilty of aggravated assault, I must find that the Crown has proven beyond a reasonable doubt that the defendant assaulted the complainant and caused him injuries that amount to a wound, or maimed or disfigured the complainant. There is no doubt that the injury to the complainant's left cheek meets this standard. The defence admits this, but submits that the injury to the complainant's right cheek does not amount to aggravated assault and is only capable of supporting a finding of guilt of assault causing bodily harm.
[45] There is no direct evidence that the defendant slashed either of the complainant's cheeks and caused his injuries. There is evidence that, if accepted, would establish that he had a weapon, that he used that weapon on the complainant, and that immediately thereafter the complainant had the injuries. That is circumstantial evidence. In order for me to determine that the Crown has proven that the defendant's assault caused those injuries, I must conclude that, on all of the evidence and absence of evidence, that is the only reasonable conclusion. (R. v. Villaroman, 2016 SCC 33 at paragraphs 26 to 37)
[46] Two witnesses – Mr. Ali and Mr. Elenezi – testified that they punched the complainant while holding a pencil in their fist. The defence submits that I should accept this evidence and infer from those facts that the Crown has not proven beyond a reasonable doubt that the defendant's assault of the complainant caused either of the injuries to his face.
[47] The Crown submits that even if Mr. Ali and Mr. Elenezi did have pencils clutched in their fists when they punched the complainant, I may still conclude that the Crown has proven beyond a reasonable doubt that the complainant's facial injuries were caused by the defendant. I accept that submission. It would be open for me to find that even though Mr. Ali and Mr. Elenezi punched the complainant with pencils in their fists, the injuries were caused by the defendant.
[48] But the converse is not true. If they did not have pencils in their fists, the injuries could not have been caused by them. The issue of whether they had pencils in their fists is a "vital issue" to the defence advanced. In my view, I must determine whether the Crown has proven beyond a reasonable doubt that they did not have pencils in their fists. Otherwise, I would be effectively reversing the burden of proof and requiring that the defendant prove a fact vital to his defence.
[49] In determining that issue, I must follow the W.(D.) analysis. I must determine whether, on all of the evidence, I believe Mr. Ali and Mr. Elenezi. If so, I must accept that fact. If not, I must determine whether, on all of the evidence, I am left with a reasonable doubt. If so, I must proceed with my analysis of whether the Crown has proven that the defendant caused the complainant's facial injuries on the basis that it has not been established whether Mr. Ali or Mr. Elenezi, or both, as the case may be, had a pencil in their fists. Even if I am not left with a reasonable doubt, I must determine, on the balance of the evidence, whether I am satisfied beyond a reasonable doubt that the injuries were caused by the defendant.
(ii) The Crown has proven beyond a reasonable doubt that Mr. Ali did not have a pencil and did not cause the complainant's injuries
[50] The complainant's evidence is of no value on this point. He did not know whether either Mr. Ali or Mr. Elenezi had a pencil. He did not even know if Mr. Elenezi or the defendant had assaulted him.
[51] I do not believe Mr. Ali's evidence. The video shows that the fingers of his right hand were fully extended for a period of time after he pulled his hands out of his waistband. He has no pencil in his hands. The video evidence also shows that he did not enter the washroom to dispose of the pencil after the fight and before the police arrived, despite having a significant amount of time to do so. I accept Mr. Elenezi's evidence that inmates will dispose of weapons in the toilet as soon as possible after a fight in order to avoid the guards finding them. I cannot accept that Mr. Ali would not have done so if he had a weapon as he claimed.
[52] I am not left with a reasonable doubt about whether Mr. Ali had a pencil. The video evidence is clear. There is no room for doubt.
[53] The photographs make it clear that only a pointed object could have caused the injuries to the complainant's face. I am satisfied beyond a reasonable doubt that they were not caused by Mr. Ali.
(iii) The Crown has proven beyond a reasonable doubt that Mr. Elenezi did not have a pencil and did not cause the complainant's injuries
[54] Mr. Elenezi had no valid explanation for why he did not flush the pencil down the toilet before the guards arrived, even though he admitted that that was something that would ordinarily be done. He testified that he did not have time to do so. The video shows clearly that that is not so. He stood in the area of the washroom door for 50 seconds before the guards entered. He could have gone in and flushed the pencil down the toilet. Yet he did not do so. His explanation that he did not have time to do so makes no sense. Nor is it true, as he claimed, that the correctional services officers were coming in the room. They did not appear behind the door to the room until Mr. Elenezi had been standing in front of the washroom door for 24 seconds. They could not see Mr. Elenezi, or the washroom, until they entered the room 36 seconds later.
[55] The video makes clear that he did not have a pencil in his right hand immediately after he struck the complainant, and several seconds before he testified he put the pencil back in his clothing.
[56] I do not believe his evidence that he had a pencil.
[57] Nor am I left with a reasonable doubt on this point, for the same reasons.
[58] I conclude that the Crown has satisfied me beyond a reasonable doubt that Mr. Elenezi did not have a pencil in his hand. In reaching this conclusion, I am not considering or placing any weight on my disbelief in Mr. Elenezi's evidence. I am relying on
(a) the video evidence which shows that he did not have a pencil immediately after striking the complainant;
(b) Mr. Elenezi's evidence, which I do accept, that he would have flushed a weapon down the toilet if he had one and had time to do so before the guards arrived; and
(c) the video evidence which establishes that he had ample time to flush it down the toilet and that he did not enter the washroom although he was right at its doorway.
[59] The only reasonable conclusion on this evidence is that Mr. Elenezi did not have a pencil in his hand when he punched the complainant.
[60] The photographs of the cuts on the complainant's face establish that only a pointed or sharp instrument could have caused them. Consequently, I conclude that the complainant's facial injuries could not have been caused by Mr. Elenezi.
(b) The facial scars were caused by the defendant
[61] As I have indicated, there is only circumstantial evidence on this point.
[62] Circumstantial evidence can be used as the sole or primary basis for concluding that the Crown has proven an element of an offence beyond a reasonable doubt. Care must be taken when doing so, however. Because triers of fact may be inclined to "fill in the blanks" or "jump to conclusions" when applying circumstantial evidence, they should be aware that they should not draw inferences of guilt too readily. Circumstantial evidence should only be used as the primary basis for a finding of guilt where the defendant's guilt is the only reasonable inference to be drawn from the evidence or the absence of evidence. (R. v. Villaroman, at paras. 26 to 37)
[63] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt to determine whether "the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty." (Villaroman, at para. 38)
[64] It is not necessary, however, that the trier of fact negative every possible conjecture, no matter how irrational, fanciful, or speculative, which might be consistent with the innocence of the accused. The following language summarizes this principle:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably supposed.
[65] The facts which have been established are these:
- Neither Mr. Ali nor Mr. Elenezi had a pencil in their fist;
- They each punched the defendant straight on, and not in a horizontal or diagonal slashing or cutting motion;
- There was no blood on the complainant's face some 6 seconds after Mr. Ali punched him and before he was assaulted by Mr. Elenezi and the defendant;
- The defendant removed an object from under his waistband and unwrapped tissue-like material which had been covering it just before he ran at the complainant, holding the object in his right hand;
- The defendant made slashing movements with his right hand across both sides of the complainant's face after running at him and holding him in a headlock;
- While the defendant was making those movements with his right hand, the complainant extended his hand toward the defendant's hand two or three times, in the way someone would if he was trying to defend himself against being cut;
- The complainant suffered two significant cuts to his face, one on each cheek, running in a horizontal line on his right cheek and in a diagonal line on his left cheek;
- The defendant entered the washroom immediately after assaulting the complainant and bent over the toilet, as he would do if he was flushing something down the toilet;
- There was blood on the complainant's face, streaming onto his chest, 21 seconds after being assaulted by the defendant, and a full 37 seconds after being punched by Mr. Ali.
[66] I conclude that the Crown has proven beyond a reasonable doubt that the defendant assaulted the complainant with a weapon and slashed him across both cheeks, causing injuries that amounted to wounds and maimed and disfigured him. The circumstantial evidence allows for no other reasonable conclusion.
[67] Both injuries amounted to "wounding". Any breaking of the skin is a wound for the purpose of aggravated assault. (R. v. Littletent, 1985 ABCA 22; R. v. A.F., 2018 ONSC 1511 at paragraph 85 (per Maranger J.)) The complainant's skin was clearly broken on both sides of his face. Mr. Ali only punched him once.
[68] I find the defendant guilty of aggravated assault. I also find him guilty of assault causing bodily harm.
[69] A "shank" is defined by the Canadian Oxford Dictionary as "an improvised knife, especially as made by a prison inmate". Mr. Munro testified that inmates often improvise knives by sharpening objects from the prison. The defendant had an object in his pants which he had wrapped with tissue which he used to slash the complainant. I conclude that this was a "jailhouse shank" as the assault with a weapon charge particularizes. I find the defendant guilty of assault with a weapon.
Released: October 1, 2018
Signed: Justice P.K. Doody
