Court File and Parties

Court File No.: Toronto Date: 2012-09-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Joshua Campbell

Before: Justice Fergus O'Donnell

Heard on: 6 September, 2012

Reasons for Judgment released on: 20 September, 2012

Counsel:

• Mr. Matthew Bloch for the Crown
• Mr. Richard Mwangi for the defendant Joshua Campbell

Reasons for Judgment

Overview

[1] The Crown alleges that Joshua Campbell engaged in two acts of apparently random mayhem on St. Clair Avenue near Dufferin Street on 22 March of this year. As a result, Mr. Campbell faces charges that he assaulted a local café owner without provocation, that he assaulted a local shopper and tried to steal her necklace and that he assaulted a man who helped subdue him, ultimately escaping from that man's custody. As a result of his alleged involvement in these acts, Mr. Campbell also faces two charges of failing to keep the peace and be of good behaviour, in breach of a probation order he entered into in December, 2011.[1]

The Evidence

[2] I heard from five witnesses, namely the café owner, the victim of the alleged theft, the good Samaritan who helped restrain the assailant from the theft and two responding police officers. The central, but not sole, issue in this case is whether the Crown has proved beyond a reasonable doubt that the person the police arrested nearby is the person who was the assailant in one or both of the two attacks on St. Clair Avenue.

[3] Antonio Ferragina is the owner of a café on the north side of the T-junction of St. Clair Avenue West and Via Italia. Around 2 p.m. on 22 March, 2012 he was outside his café chatting with a woman when a young black man approached from the west and punched him in the face, knocking him out. The assailant was tall with a normal build, around 23 to 25 years old, with short hair and was wearing dark shorts and a blue shirt, which Mr. Ferragina said was more like the blue in the court security officer's cap-band than the blue in the court security officer's body armour. Mr. Ferragina saw him for only a split second before being knocked out.

[4] After being struck, Mr. Ferragina went into his café and applied ice to his bleeding face. One of his customers, Pedro Bruzzese, was in the café and he left within five or ten minutes by Mr. Ferragina's estimate. Mr. Ferragina next saw Mr. Bruzzese at the corner of Dufferin and St. Clair when he attended there after being told the police had arrested someone. He did not see the person arrested at any time. There was no evidence that Mr. Ferragina or any of the other witnesses was shown a photo line-up.

[5] When asked in cross-examination if he could identify Mr. Campbell in the prisoner's box in court, Mr. Ferragina said that without a doubt that was the man who hit him.

[6] The injuries to Mr. Ferragina's face were substantial and endured for up to a couple of months. It was agreed that they satisfied the requirement of bodily harm.

[7] Lina Ferrone, a retired dry cleaner, was shopping for a dress around 2 p.m. that day. She came out of a shop on the south side of St. Clair a short distance east of Mr. Ferragina's café and a man approached her and grabbed her necklace and insisted that she let go of it. Ms. Ferrone responded by shouting for help and people started approaching. Ms. Ferrone held onto one part of the necklace while the assailant held onto the other and tore at it, causing the necklace to break in two parts, one in Ms. Ferrone's hand and the other falling to the ground where it was retrieved later.

[8] Ms. Ferrone recalled that two people helped her and that her assailant was thrown to the ground.

[9] Ms. Ferrone recalled that her assailant was a dark-skinned man, taller than she was, with short hair and wearing a "normal" blue T-shirt and dark shorts. He eventually escaped and she last saw him turning southbound at the corner of Dufferin and St. Clair. Ms. Ferrone testified that the police didn't take very long to get there and that she heard that a suspect had been caught on Dufferin Street right away. She never saw her assailant again that day.

[10] Pedro Bruzzese was one of the good Samaritans who came to Ms. Ferrone's aid that March afternoon. The general import of his evidence is that he became aware of the attack on Mr. Ferragina and went over to his café, leaving after three or four minutes because everyone was looking for the guy who hit Mr. Ferragina. After about fifteen minutes, he heard a commotion further west, on the south side of St. Clair. He crossed over and found a man holding a dark-skinned person and asking for help because there had been a robbery. This first good Samaritan said he couldn't hold the man any longer and didn't want to go to court and left, leaving Mr. Bruzzese to restrain the alleged assailant.

[11] Mr. Bruzzese testified that he and the dark-skinned assailant struggled and eventually fell to the ground. Although Mr. Bruzzese was not precise about how long events took to unfold, he described it as happening very fast and said he could not hold onto the assailant any longer because he had injured his shoulder.

[12] Mr. Bruzzese described the man he restrained temporarily as dark-skinned, wearing shorts and a shirt that he described as "blue, I just can't recall if it was blue or black or purple". On reviewing his statement to the police, he said that the shorts were black and the shirt was blue. The assailant was about Mr. Bruzzese's height (1m82) and skinny.

[13] Constable Kelli Webb was the first officer on scene, arriving within four minutes of getting the dispatch notice. Because the assailant's last known direction of travel was southbound on Dufferin Street, Constable Webb proceeded in that direction and came upon a person she felt matched the description given. She found Mr. Campbell walking very quickly southbound on Dufferin, slightly out of breath and seeming scared when she approached him. She found him about 1 ½ blocks south of St. Clair Avenue and described him as a black male with a light complexion, about six feet tall and 150 pounds with a medium length afro hairstyle and wearing a black t-shirt and blue basketball shorts. She also noted that he appeared to have dirt on his clothing that was consistent with a scuffle on the ground or with other contact with the ground. The dirt was in random locations on his clothing. He also appeared to have a cut on his elbow, which looked minor but fresh.

[14] Constable Gucbilmez arrived on scene shortly after Constable Webb. He confirmed Constable Webb's description of Mr. Campbell's clothing as including blue shorts and a black t-shirt, which is the reverse of the civilian descriptions of the assailant on St. Clair Avenue. He also described Mr. Campbell's elbow wound as a fresh, minor scratch and said it was still bleeding, sufficiently so that some of the blood transferred to Constable Gucbilmez's arm as he escorted Mr. Campbell that day.

Has The Crown Proved The Charges Beyond A Reasonable Doubt?

[15] It goes without saying that Mr. Campbell is presumed innocent of all of the charges. He has nothing to prove. The Crown must prove his guilt beyond a reasonable doubt in order to secure a conviction.

[16] It also goes without saying that the Crown's case against Mr. Campbell is almost entirely circumstantial. The only direct identification of Mr. Campbell as the assailant in either incident was Mr. Ferragina's in-dock identification of Mr. Campbell at trial. While such an identification is not entirely without value, the inherent frailties and limitations of such an identification process are so widely recognized as to mean that, standing alone, its value is extremely limited. This, of course, reflects nothing negative in relation to Mr. Ferragina, whose in-dock identification may very well be correct. It simply reflects the long experience with the limitations of identification evidence and the particular dangers that identification in certain settings can create.

[17] What the Crown can rely on is that the general description of the assailant in each attack matches closely with the general description of Mr. Campbell, for example as given by Constable Webb. His height,[2] build, skin colour and hair length are a reasonably close match. None of the witnesses defined any particular physical characteristic of the assailant, assuming there was any, but this is not surprising given the circumstances and it is highly questionable as to whether or not this is how real people actually register and recall other people's appearance. Suffice to say that, at its highest, the Crown's description of the assailant's physical attributes is very generic.

[18] One obvious concern is that the description of the assailant's clothing has one significant impairment, namely that the colours attributed to Mr. Campbell's shorts and t-shirt by the police are the reverse of those attributed to the assailant by the civilian witnesses. All of the witnesses, civilian and police, however, are consistent that both the assailant and Mr. Campbell were wearing shorts and a t-shirt and that the colours were blue and black.

[19] This discrepancy clearly does not assist the Crown's case. The question is also to what extent the discrepancy undermines the Crown's case, in particular in creating a reasonable doubt that there was someone else matching Mr. Campbell's general description in the area at the same time that afternoon but wearing similar clothing in a reversed colour pattern. This is obviously something to which I must pay heed in determining whether or not the Crown has proved that Mr. Campbell was the assailant in either or both of the attacks, but I do not consider the discrepancy to be a knock-out blow to the Crown's case. In the first instance, at a certain point the difference between the colours black and blue can be somewhat subjective. Secondly, the amount of time the civilian witnesses had to absorb the fine details of the assailant's clothing was very limited and these were stressful circumstances, so I must remain alive to the possibility of innocent confusion, all the while recalling that the burden is always on the Crown to eliminate any reasonable doubt about the assailant's identity. For example, Mr. Ferragina had the shortest of opportunities to register that his assailant was wearing black and blue before being knocked unconscious and waking up with his face in those very colours.

[20] There are two other elements that are relevant to the issue of whether or not the Crown has proved that Mr. Campbell was the assailant, although one relates only to the Ferrone incident and the other relates more strongly to that incident. The first of these is that Mr. Campbell was found with dirt on his clothes and with a fresh cut on his elbow. These are two pieces of evidence that are consistent with the struggle as described by Mr. Bruzzese. Leaving aside the issue of whether or not Mr. Ferragina's assailant was necessarily the same person who attacked Ms. Ferrone, however, these pieces of evidence only link Mr. Campbell to the second incident.

[21] Mr. Mwangi fairly suggests that there may very well be other explanations for how Mr. Campbell got his clothes dirty and got the cut to his elbow. While that is true, on the evidence before me the existence of an alternative explanation does not rise above mere possibility. This is obviously not to suggest for a moment that Mr. Campbell has any obligation to prove anything; he does not. However, while I must consider the possibility that he fell during a ball game or tripped over an uneven sidewalk, I must also recognize that such possibilities lie closer to the realm of speculation than that of reasonable inference from the evidence. At the end of the day, the dirt and wound are one piece of evidence in the overall assessment of the Crown's case that the person stopped on Dufferin Street was the person who attacked Mr. Ferragina and Ms. Ferrone.

[22] The other element that is relevant is time and distance. Obviously, nobody was keeping track of these events with a stopwatch and estimates of time can be quite subjective. Based on all of the evidence, however, it seems clear to me that the time between the assault on Ms. Ferrone and the detention of Mr. Campbell on Dufferin Street was very short, likely a few minutes. I also note the evidence of Mr. Ferragina, a café owner in the neighbourhood for about fifteen years, about the time it would take a pedestrian to get from his café to the site of Mr. Campbell's detention by Constable Webb. Extrapolating from that evidence and considering the slightly greater proximity of the Ferrone attack to the site of Mr. Campbell's detention, the Crown's case that the assailant last seen turning south on Dufferin Street was the same person as Mr. Campbell who was arrested a block-and-a-half away is strong.

[23] The evidence with respect to time and distance in relation to the Ferragina assault, however, is less compelling because the time-lines strike me as less clear. The Crown's evidence of Mr. Campbell's injury and his soiled clothing does not have the same confirmatory force with respect to Mr. Ferragina's assailant as it has with respect to Ms. Ferrone's assailant. In light of all of the evidence including time and description, it does seem highly probable to me that the person who assaulted Mr. Ferragina was the same person who assaulted Ms. Ferrone, but the fairly vague timelines and the absence of any evidence before me of a robbery attempt against Mr. Ferragina (contrasted with the obvious robbery attempt on Ms. Ferrone),[3] weaken the strength of any conclusion that they were necessarily the same assailant. While the existence of a unique signature to the criminal behaviour is not essential in the circumstances of this case, I note that on the evidence before me the Ferrone incident was a clear robbery attempt whereas there was no evidence of an attempt to steal the necklace Mr. Ferragina was wearing.

[24] When I consider all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Campbell is the person who attacked Ms. Ferrone and tried to steal her necklace. When all of the relevant evidence is stitched together, the Crown has satisfied its burden, even allowing for the discrepancy of which article of clothing was which colour. The evidence clearly makes out an assault insofar as the non-consensual application of force to Ms. Ferrone, whether directly or indirectly, is inescapably proved. While it is debatable whether or not the brief separation of Ms. Ferrone from the second half of her necklace makes out the offence of theft that is charged, it clearly makes out the charge of attempted theft. Mr. Campbell's utterance to Ms. Ferrone to let go of the necklace removes any possible doubt about his intent. Finally, the assault and attempted theft are not consistent with his obligation to keep the peace and be of good behaviour as required by his probation order. Accordingly, I find Mr. Campbell guilty of counts 3 and 6, the assault and failure to comply with probation, and not guilty of count 4, the theft, but guilty of the included offence of attempted theft.

[25] I am obviously also satisfied beyond a reasonable doubt that Mr. Campbell is the same person who struggled with Mr. Bruzzese and then freed himself from Mr. Bruzzese's grasp. Mr. Mwangi argues that Mr. Campbell cannot be guilty of assault to resist arrest/detention because Mr. Bruzzese's arrest/detention of the assailant was unlawful. Mr. Mwangi argues that while Mr. Bruzzese's intentions were honourable and laudable, it was not objectively reasonable for him to act on the information he had in detaining the assailant. I do not think that this argument can be sustained in light of Mr. Bruzzese's testimony that an elderly lady (a description that would match Ms. Ferrone) said he had stolen something and the man who was holding Mr. Campbell at first told him that there had been a robbery. Whether the precise words were uttered or not, it seems to me a perfectly rational conclusion that the person being detained was the alleged robber.

[26] In the context of this case, it seems to me to be beyond gainsaying that Mr. Bruzzese subjectively and objectively had reasonable grounds to detain Mr. Campbell. It bears noting that the degree of felicity expected of a police officer in formulating and explaining his reasonable grounds for arrest are not to be compared with the degree of exactitude expected in the drafting of a search warrant. The same practicality must surely apply to a civilian explaining his actions. The words of Justice Doherty in R. v. Golub (Ont. C.A.), bear repetition:

The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[27] With respect to the requirements of section 494(2) of the Criminal Code, I am satisfied that Ms. Ferrone's raising of the "hue and cry" in relation to the robbery attempt against her gave her authorization to the initial good Samaritan who detained Mr. Campbell and that that authorization validly cascaded from Ms. Ferrone through the first good Samaritan to Mr. Bruzzese, thereby rendering his detention of Mr. Campbell lawful.

[28] I should also note that there is no room for any doubt on the evidence before me but that the assailant struggled with and struck Mr. Bruzzese with the precise intention of avoiding detention and arrest.

[29] Mr. Mwangi also argues that even if I am satisfied beyond a reasonable doubt that Ms. Ferrone's assailant was Mr. Campbell, I should find Mr. Campbell not guilty of the escape charge. He argues that the offence of escape necessarily requires the application of force by the escapee to the person having custody, in this case Mr. Bruzzese and that the evidence does not make out any such application of force.

[30] I believe there are two flaws in that submission. First, assuming that force is a necessary element of an escape charge, it seems clear to me that the struggle described by Mr. Bruzzese, including but not limited to the blow that weakened his shoulder and his ability to hold on to Mr. Campbell, constitutes Mr. Campbell's application of force to Mr. Bruzzese. If the evidence demonstrated that Mr. Campbell did nothing other than purely passive resistance, Mr. Mwangi's argument that there was no force applied might prevail, but the "struggle" and blow described by Mr. Bruzzese are not the stuff of passive resistance.

[31] More importantly, I do not think it is correct to say that an escape from lawful custody necessarily requires the application of force. There is nothing in the Criminal Code provision or in the plain meaning of the word that supports such an interpretation. Human imagination and countless movie scripts tell us that the means whereby a person could escape from lawful custody are limitless, for example by climbing a prison wall, by sneaking out in a laundry truck or by making use of an unguarded door, all without any interaction whatsoever with another human being or without any application of force of any kind. The World War II incident that became notorious as "The Great Escape" involved the escape of seventy-six prisoners from a prisoner of war camp without any reliance on force or violence. The Concise Oxford Dictionary reminds us that "escape" can be both a transitive and intransitive verb, for example: "get free (from prison, person, etc.)…find a way out; get off safely, go unpunished;...get clear away from (person, his grasp, etc.)".

[32] I am satisfied that the Crown has proved the charges of assault resist arrest and escape beyond a reasonable doubt.

[33] This brings me to the question of whether or not the Crown has proved the charges in relation to Mr. Ferragina beyond a reasonable doubt. I note that the evidence in relation to identity for these counts does not include the fact that Mr. Campbell's clothes were soiled or that his elbow was bleeding, which are details highly relevant to whether he is the person who assaulted Ms. Ferrone and struggled with Mr. Bruzzese. The lines of time and distance are also somewhat more attenuated when one considers the Crown's case on the Ferragina charges. While there is much to be said to the effect that Mr. Ferragina's assailant and Ms. Ferrone's assailant were probably the same person, the Crown's overall case on the Ferragina counts is materially weaker than its case in relation to the Ferrone/Bruzzese counts and I am left with a reasonable doubt about Mr. Campbell's guilt on the Ferragina counts.

Conclusion

[34] Accordingly, I find Mr. Campbell not guilty of counts 1, 2 and 7, all of which relate to the attack on Mr. Ferragina. I find him guilty of the assault on Ms. Ferrone (count 3), of the attempted theft of her necklace (the included offence on count 4), of the breach of probation made out by that misconduct (count 6), of the assault on Mr. Bruzzese with the intent to resist arrest and of escaping Mr. Bruzzese's lawful custody (counts 5 and 8).

Released: 20 September, 2012

Footnotes

[1] There was no issue that Mr. Campbell was bound by that probation order at the time of these events.

[2] For example, Mr. Bruzzese described the assailant as being about his height. Mr. Bruzzese was 1m82 tall and Constable Webb described Mr. Campbell as being about six feet tall. The metric and imperial measurements reflect exactly the same height.

[3] I use the term "robbery" because that is what the attack on Ms. Ferrone was, quite apart from procedural reasons why the Crown might choose to proceed on a theft and assault charge instead.