Court Information

Toronto: Metro West

ONTARIO COURT OF JUSTICE

Trial Before: Justice D. Oleskiw

Heard on: June 6 and 7, 2013

Judgment and Reasons Rendered: June 14, 2013

Parties

Between:

HER MAJESTY THE QUEEN

-and-

DAVID ALEXANDER BRIGGS

Counsel

For the Crown: Mr. A. Del Rizzo

For the Accused, David Briggs: Mr. B. Irvine

Introduction

[1] David Alexander Briggs faces charges of attempt abduction, sexual assault, sexual invitation and assault with intent to resist arrest. All of these charges arise out of a brief but alarming incident that occurred just after 10:00 am on the morning of September 22, 2012 on a main street in Toronto.

[2] Mr. G was taking his daughters, one 2½ years old and one 7 months old, to a local bakery for their Saturday morning outing when the accused crossed four lanes of traffic to abruptly stop in the oncoming traffic curb lane, open his door, and aggressively approach Mr. G's 2½ year old child. As the accused was right over the child screaming and before he touched her, Mr. G physically intervened and restrained the accused who would not be deterred. A struggle ensued between Mr. G and the accused until three other passers-by took over to continue to restrain the accused until the police arrived. Upon arrest within minutes of the incident, Mr. Briggs made disturbing spontaneous utterances about his sexual intentions toward the 2½ year old child.

[3] The evidence given by six witnesses in this case paints a clear picture of the unusual incident that occurred on this Saturday morning. Mr. G's account is corroborated by several witnesses to the incident. The live issues in this case revolve around whether the essential elements of each of the charges have been proved beyond a reasonable doubt.

[4] On a motion for a directed verdict the Court acquitted the accused of the sexual invitation count as there was no evidence of "inviting, inciting, or counselling". Also, at the invitation of the defence, a finding of guilt was entered on the charges of possession of cocaine and oxycodone, both of which controlled substances were found in Mr. Briggs's wallet when he was arrested.

[5] Having carefully reviewed the evidence and the law in this case, I conclude that Mr. Briggs is guilty of count 1 - attempt abduction: Not guilty of count 2, sexual assault, but guilty of the included offence of assault: and guilty of count 4, assault with intent to resist arrest. My reasons for these findings are set out below. I will first address the evidence and my findings of fact. I will then apply my factual findings to the law.

Mr. G's Evidence

[6] Mr. G described how just after 10:00 a.m., he walked through Millwood Park with his 2½ year old on her bicycle and his 7 month old in a stroller. Just as he finished negotiating a slight hill onto the sidewalk on Bloor Street West, between his 2½ year old's bicycle with training wheels and the stroller, he heard a loud bang. He turned to see the accused's car facing east against the curb in the westbound lane. At first, Mr. G thought it was an accident and looked inside the car to see if the person in the car was okay.

[7] What Mr. G saw was the accused screaming in a rage at his children to the point that he was physically moving inside the car. The driver's door swung open and in one movement the accused went straight for Mr. G's 2½ year old daughter who was approximately 6 to 8 feet away from him. The accused's screaming continued as he came at Mr. G's daughter although Mr. G could not hear the actual words used by the accused. Mr. G said that the accused never broke stride nor eye contact with his daughter, although Mr. G tried to make eye contact with the accused as he closed the distance on his daughter.

[8] By the time the accused was standing right over Mr. G's daughter, screaming at the top of his lungs, and not responding to Mr. G, Mr. G lunged at the accused. Mr. G believed that the accused was about to punch his daughter and that she was in imminent danger. Mr. G loudly and quickly said to the accused, "What are you doing. Get away from my daughter." When this had no effect on the accused, Mr. G grabbed the lapels of the accused's leather jacket and threw him onto the road.

[9] The accused tried to get up, but Mr. G wrestled him to the ground. Mr. G described that the accused would not stay down. They were fighting and Mr. G ended up punching the accused in the face three times. Mr. G told the accused to stay down but the accused was fighting hard and snarling like an animal. Mr. G got the accused into a tight choke hold and told him that he would choke him out. As the struggle continued, Mr. G was tiring and felt the need to reach his child who was now crying and screaming on the sidewalk. Mr. G called out to bystanders to call 911 and to help him saying this guy is crazy, he is after my daughters.

[10] A man from a truck on the roadway stopped and assisted Mr. G. Then, two more men helped to restrain the accused. One of those men held the accused's hand behind his back. The first intelligible words that Mr. G heard out of the accused's mouth was when he told the other men to loosen their grip. Mr. G was able to go to his daughter.

[11] The police arrived and Mr. G saw that the police officer who arrested the accused had difficulty getting the accused into the scout car.

Officer McMahon's Evidence

[12] Officer McMahon testified that he has been a police officer since 1979.

[13] P.C. McMahon responded to the call that came over his radio at 10:18 a.m. He arrived on scene at 10:21 a.m. finding the accused on the ground being restrained by three men. Based on information received over the radio and by people at the scene, he immediately arrested the accused for assault. The accused was advised that he was under arrest for assault. When PC McMahon tried to cuff the accused, he resisted. P.C. McMahon administered a few knee strikes, got the accused cuffed and picked him up off the ground. He took the accused to the rear of the cruiser where the accused continued to resist. As PC McMahon was conducting a pat down search at the rear of the cruiser, the accused said, "She looked so sexy. I wanted her real bad. I wanted to lick her young twat." P.C. McMahon told the accused to be quiet and that he did not have to say anything. The accused repeatedly resisted by pushing himself off the cruiser and uttered, "Nice and juicy", then stuck his tongue out of his mouth and wiggled it back and forth. When P.C. McMahon told him to stop resisting, the accused tried to grab officer McMahon in the crotch area. McMahon gave him another knee strike and put the accused in the back of the cruiser.

[14] When the accused was in the cruiser, P.C. McMahon advised him of his right to counsel to which the accused responded, "Yeah yeah. I couldn't resist. She looked so sexy there. I wanted to lick her young twat." P.C. McMahon then gave the accused the full caution that he didn't have to say anything but if he did, it would be used against him. At this point Sergeant Lorenzo took over the scene.

[15] At 10:25 a.m. P.C. McMahon started to transport the accused to 22 Division. Again, in the car, the accused kept talking and, without McMahon saying anything, the accused said, "I couldn't resist her I wanted to lick her young twat. Nice and Juicy", and moved his tongue from the corner to corner of his mouth. The accused kept repeating this. P.C. McMahon stopped the vehicle and read the accused the caution again -- to which the accused responded, "yeah, yeah. The last time I was just touching young girls' legs in the pool. That nothing."

While searching the accused's wallet at the station, Officer McMahon found 1.23 grams of cocaine and 6 Oxycodone pills being 3.45 grams.

[16] P.C. McMahon testified that the accused's utterances were not in response to anything the officer said. Rather, the accused was talking non-stop about young girls and the young girl that morning. He appeared to understand the cautions and rights given and P.C. McMahon did not smell alcohol or notice anything abnormal about his eyes. He described the accused's demeanor or behaviour as bizarre, evil and angry. He also testified that the accused's black car that was parked at the curb was not damaged in any way.

The Evidence of Four Civilian Witnesses

[17] Robert Currie was driving eastbound on Bloor when the accused's car sped past him also travelling eastbound, then pulled into the westbound lanes and came to an abrupt stop at the curb. He saw the car door open and a man lunge toward the children while yelling directly at the older child. The accused left his car door open. Mr. Currie pulled over and called 911. Mr. Currie testified that, although he did not tell the police at the time of his statement, he was sure that the accused was yelling something like "come here" at the child.

[18] Roumen Nicolov testified that he was the first to intervene when, as he was driving eastbound on Bloor, he heard one of the two men who were struggling calling for help. He stopped his vehicle in the middle of the street and went out to help because the young girl near a bike was crying. He said that the father was holding the man around the chest while they were standing and that he helped the father get the man to the ground. Mr. Nicolov held the man's legs or feet as the man continued to swear at him saying leave me alone, let me go. When the police arrived Mr. Nicolov witnessed the accused resist arrest.

[19] Frank Taylor, a retired firefighter, was one of the three men who responded to the father's request for help to secure the accused. Mr. Taylor took the middle section of the accused's body and held him until the police arrived. He described the accused's emotional state as "kind of wild" and said that his eyes were kind of glassy. The only words he heard the accused say were "let me get up".

[20] Zachery Kelcher-McConnell, a young male who was walking in the Park, heard a crunch like metal on cement, and then saw the accused get out of his car and start yelling directly at the young girl. He heard the father yelling at the man to get away, and saying why are you yelling at my daughter or why are you doing this. He saw some of the struggle between the men, and stayed a distance away until other help arrived. He saw the accused struggling to break free from the people holding him down. He could not distinguish words spoken by the accused, but he was yelling and Mr. Kelcher-McConnell described the accused as "angry, frustrated, crazed almost".

Factual Findings

[21] I have no reason whatsoever to doubt Mr. G's version of events as he testified. Mr. G was an articulate witness who candidly described his experience and observations, in what had to be a traumatic event. His version is corroborated in all material respects by the other civilian witnesses. I find that the events occurred essentially as Mr. G described them in his evidence.

[22] Defence counsel argued that the reliability to PC McMahon's evidence about the accused's utterances is suspect due to the absence of an in-car video, and the fact that he made his notes back at the station. I reject this submission. First, P.C. McMahon's notes were made in the usual manner, back at the station. Further, as a very experienced officer, Mr. Briggs utterances obviously made a significant impression upon him. Finally, I accept D.C. Laramy's explanation for the partial video and conclude that there is no basis to suggest that there was any intentional non-recording. I believe P.C. McMahon's evidence and find that his recollection of Mr. Brigg's words and actions is reliable.

[23] The real issues in this case are whether the established facts make out the offences charged.

Attempted Abduction

[24] The offence of abduction under s. 281 of the Criminal Code requires proof of the following elements beyond a reasonable doubt:

i) that the child was under the age of 14;

ii) that the accused was not a parent or lawful custodian of the child;

iii) that the accused intentionally abducted, or got control over, the child;

iv) that the accused's abduction was unlawful; and

v) that the accused intended to deprive the child's parent or lawful custodian of possession of the child; R. v. Chartrand (1994), 91 C.C.C. (3d) 396 (S.C.C.)

[25] There is no dispute that the child was under 3 years old, that Mr. G was her parent, that the accused is not the child's parent or lawful custodian and that he had no lawful authority to take the child.

[26] Mr. Irvine, on behalf of the accused, argues that the evidence does not establish that the accused intended to take the child. I cannot accept this submission. Indeed, even without Mr. Currie's recollection of hearing the accused say words to the effect of "Come here" to the child, I find that the evidence clearly establishes an attempted abduction.

[27] Regarding the mental element of attempt, McIntyre J. stated in R. v. Ancio, [1984] 1 S.C.R. 225 at 247:

It is clear from the foregoing that in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea. In R. v. Cline, supra, Laidlaw J.A., speaking for the Ontario Court of Appeal, said, at p. 27:

Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an actus reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.

[28] In addition to establishing that the accused intended to commit the completed offence, the Crown must also prove that the accused accomplished certain acts toward the realization of the intended offence. These acts must amount to more than mere preparation. Justice P. Harris, helpfully reviewed the appellate authority and distilled the principles in R. v. Lane, [2000] O.J. No. 827 where he concluded:

Three principles may be distilled from the case law as to what constitutes the actus reus of attempts:

1. No rule has been formulated to determine in all cases the point at which preparation ends and attempt begins.

2. When preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal intent to commit a crime.

3. An attempt requires some overt action or omission that is sufficiently proximate to the full criminal act and sufficiently predictive of the crime to raise an inference that the action has gone beyond mere preparation.

[29] In the case before me I am fully satisfied that Mr. Briggs intended to take the child out of her father's control and physical custody. His intention, as clearly and disturbingly expressed to Officer McMahon, was to sexually assault the child. I infer that Mr. Briggs intended to take the child out of her father's control, as this is the only way that he could carry out his intention of sexually assaulting her. Mr. Briggs completed the overt actions of pulling over into on-coming traffic, getting out of the car, leaving the car door open, and going straight for the child with determination and purpose. Even after the father's intervention he was not deterred. The attempt does not require actual touching or taking of the child. Mr. Briggs had the necessary mens rea. Mr. Briggs also committed the actus reus as he clearly committed actions sufficiently proximate to the full criminal act of abduction and sufficiently predictive of the crime of abduction to conclude that his actions went well beyond mere preparation. The only thing that prevented the commission of the full criminal act was the reaction of a very determined, strong and protective father.

Sexual Assault s. 271

[31] At least since the release of the decision in R. v. Chase, [1987] 2 S.C.R. 293 it has been clear that sexual assault is an assault within any one of the definitions of that concept in s. 265(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. As the Court noted at paragraph 11 of that decision:

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[32] As with all criminal offences, a conviction for sexual assault pursuant to s. 271 of the Code, requires proof beyond a reasonable doubt of both the actus reus and the mens rea. In R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 the Supreme Court of Canada defined these elements as follows at paras 23 – 24:

23 ... A person commits the actus reus if he touches another person in a sexual way without her consent.

24 A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent.

[33] In R. v. Ewanchuk, [1999] 1 S.C.R. 330, the Supreme Court of Canada defined the elements as follows:

The actus reus of sexual assault is established by proof of three elements: (i) touching (ii) the sexual nature of the contact, and (iii) the absence of consent. The mens rea contains two elements: (i) the intention to touch, and (ii) knowing of or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. (paras. 25 & 42)

[34] To constitute a crime, at some point the actus reus and the mens rea must coincide: R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 35. In the case before me, I am fully satisfied that Mr. Briggs intended to sexually assault the child. However, I am equally satisfied that was an intention that was to be fulfilled at a later time. He needed to abduct the child before he could sexually assault her. I accept that his threatening physical gestures at the roadside constitute an assault pursuant to s. 265(1)(b), but there is nothing about the nature or circumstances of the threatened contact itself that give it a sexual nature. (It is obvious that consent is not an issue here as the child was 2½ years old, pursuant to s. 150.1(1)). The threatened contact at the roadside itself did not carry with it a concurrent motive of sexual gratification. In other words, although I am satisfied that Mr. Briggs ultimately had a motive to commit a sexual assault at a subsequent point in time, there is not a temporal connection between his intention to apply force at the roadside in a context that amounts to a violation of the sexual integrity of the child. The mens rea and the actus reus of sexual assault do not coincide temporally. Mr. Briggs is found not guilty of sexual assault but guilty of simple assault.

Assault on J. G. with Intent to Resist Lawful Arrest

[35] I am satisfied on all of the evidence that Mr. G was entitled to restrain the accused and hold him until the police arrived. I am also satisfied that the accused's steadfast attempts to break free from Mr. G's lawful hold on him constituted assault with intent to resist arrest. This is not a case where the accused simply resisted. The evidence is that the accused fought hard with Mr. G throughout his attempts to restrain him and he snarled like an animal. The accused continued this conduct with the other three men who restrained him as well as the police officer who arrested him. Mr. Briggs would know that Mr. G had called for people to call 911 and that he was waiting for the police to arrive. Certainly, at some point during the restraint, the accused wanted to break free and leave. I am satisfied that with these struggles and aggressive movements towards Mr. G., Mr. Briggs' purpose was to leave the scene to avoid lawful arrest. He is found guilty of assault with intent to resist arrest.

Dated: June 14, 2013

Justice D. Oleskiw