Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Ferdinand Pangan

Before: Justice P. Downes

Heard: March 31 and April 1, 2014

Reasons for Judgment Released: May 1, 2014

Counsel:

• Ms. D. Tsagaris for the Crown
• Mr. C. N. Barhydt for the accused Ferdinand Pangan

DOWNES J.:

1.0: INTRODUCTION

[1] On May 28, 2013 Ferdinand Pangan brutally assaulted Bruce Moffitt in the ATM lobby of a TD-Canada Trust Bank. The entire incident was captured on CCTV and Mr. Pangan admits that it shows him committing the assault. At the outset of this trial, therefore, Mr. Pangan pled guilty to aggravated assault, robbery and possession of stolen property. He has pled not guilty to attempted murder because he denies that he intended to kill Mr. Moffitt. With exemplary skill and focus, counsel have narrowed this trial to a single issue: has the Crown proved beyond a reasonable doubt that in committing the assault on Mr. Moffitt Mr. Pangan intended to kill him? If it has, Mr. Pangan is guilty of attempted murder. If not, he must be sentenced for the offences to which he has pled guilty.

2.0: THE EVIDENCE

[2] The Crown's case was basically two-pronged: CCTV of the entire assault inside the ATM lobby, admitted through the viva voce evidence of two police officers, and the out-of-court statement of a witness, Jason Green, which was admitted on consent for its truth after Mr. Green failed to attend court to testify.

[3] Mr. Moffitt's medical records from his admission to hospital after the assault were also admitted on consent.

[4] Mr. Pangan testified in his own defence.

2.1: THE CCTV EVIDENCE

[5] The inside of the ATM kiosk on the night of May 28, 2013 was recorded by two separate cameras. The times indicated on the CCTV are not in dispute.

[6] At approximately 10:15 p.m. Bruce Moffitt entered the ATM kiosk at 673 Warden Avenue in Toronto. The first camera angle (camera 1) is taken from directly in front of the ATM user (facing out from the ATM) and it shows Mr. Moffitt conducting various transactions at the ATM for approximately ten minutes. He is wearing a dark wool coat, blue jeans, a dark plaid shirt, and has a small scarf or bandana tied around his neck. He appears to have a knapsack on his back. At approximately 10:21 two men are seen having entered the kiosk. There is no issue that those two men are Jason Green and Ferdinand Pangan.

[7] The second camera (camera 2) is located in an adjacent office and is directed towards the waiting area of the kiosk through a set of glass doors. At 10:18 a football can be seen rolling into the picture, as though it had just fallen to the floor. I understand it to be agreed that the football fell out of Mr. Moffitt's knapsack. At 10:21 camera 2 shows Mr. Pangan noticing the football on the ground. He plays with it with his foot before bending over to pick it up, after which he leans against the kiosk window with the football under his arm. Mr. Green is seen on camera 2 walking back and forth through the kiosk, making a call on his cell phone and looking outside while waiting to use the ATM. Camera 1 shows Mr. Moffitt twice turning around to look at Mr. Green and Mr. Pangan while using the ATM, and he appears to speak briefly to them, although there is no audio on the CCTV recording.

[8] At 10:25 Mr. Moffitt completes his ATM transaction. He retrieves his football from the window ledge beside Mr. Pangan and walks towards the door. Camera 1 appears to show an exchange of words between Mr. Moffitt and Mr. Pangan, as Mr. Green and Mr. Pangan both laugh at something and look in Mr. Moffitt's direction. Immediately following this exchange, camera 1 shows Mr. Moffitt lunge toward Mr. Pangan with his right arm outstretched. Mr. Pangan then tackles Mr. Moffitt to the ground and Mr. Moffitt appears to hit his head on the floor of the kiosk. Mr. Pangan then holds Mr. Moffitt's head down with his left hand, while striking him once in the head and once on the body with his right hand.

[9] Mr. Pangan then grabs Mr. Moffitt's hair with both hands, and forcefully shoves his head against the floor of the kiosk. Mr. Pangan stands up and raises his right foot to roughly waist-height before stomping on the left side of Mr. Moffitt's head. Mr. Pangan's foot is bare at this point, his flip-flop sandal having fallen off when he tackled Mr. Moffitt.

[10] Mr. Moffitt appears to quickly lose consciousness after the first blow from Mr. Pangan's foot, as his hands, which had previously been raised to protect his head, fall limp by his side. Mr. Pangan stomps on Mr. Moffitt's head three more times with his right foot before kicking him twice in the stomach. Mr. Pangan then walks over to retrieve his sandal before returning to Mr. Moffitt and removing each of his running shoes. Mr. Pangan then kicks Mr. Moffitt in the head three times with his right foot. The force from the third kick appears to knock Mr. Moffitt's dental fixture loose, and it falls to the ground beside his head. Mr. Pangan then picks up Mr. Moffitt's football, kicks him twice more in the stomach and once more in the head before leaving the kiosk with Mr. Green at 10:26. Mr. Moffitt is lying motionless on the floor.

[11] At 10:30 camera 2 shows Mr. Pangan returning to the kiosk. Mr. Moffitt is still unconscious. While holding Mr. Moffitt's running shoes in his right hand, Mr. Pangan reaches into Mr. Moffitt's back pocket with his left hand and takes his wallet before exiting the kiosk. Mr. Pangan enters the kiosk again shortly afterwards and takes Mr. Moffitt's knapsack.

[12] At 10:32 a woman enters the kiosk and looks down at Mr. Moffitt before evidently using the ATM machine and leaving. At 10:45 a man enters the kiosk and examines Mr. Moffitt. He takes out his cell phone to make a call and then walks outside. It was agreed between the parties that this gentleman smelled alcohol in the ATM kiosk when he came in. Immediately after the man walks outside, Mr. Pangan enters the kiosk for the fourth time, and stomps on Mr. Moffitt's lower head and neck area twice with his right foot before leaving.

[13] At 10:56 paramedics arrive and examine Mr. Moffitt. At 11:04 Mr. Moffitt is carried out of the kiosk on a stretcher.

2.2: THE STATEMENT OF JASON GREEN

[14] Jason Green was originally arrested in relation to the assault on Mr. Moffitt. He provided a video-taped statement and was ultimately not charged. Although Mr. Green was subpoenaed to testify at this trial he did not appear. On consent, however, his statement was admitted as part of the Crown's case. In his statement Mr. Green described his relationship with Mr. Pangan and what the two of them did on the night in question.

[15] Mr. Green knows Mr. Pangan as "Freddy" but said that he also goes by the nicknames "shoes" and "laces" due to his interest in collecting shoes. Mr. Green and Mr. Pangan met while living in a shelter together and they subsequently moved into different units of the same apartment building on Firvalley Court, near the ATM where the assault took place.

[16] On the evening of the assault, Mr. Pangan visited Mr. Green's apartment around 6:00 p.m. From there, they left together to pick up pizza and buy alcohol from the LCBO. Mr. Green stated that Mr. Pangan did not have any money at the time, so he bought Mr. Pangan a $35 "large bottle" of Crown Royal whiskey. Mr. Green stated that he and Mr. Pangan ate pizza and drank alcohol until sometime between 10:30 and 11:00 when they left to stop by a friend's house and go to the TD bank kiosk. Mr. Green estimated that, when they left his apartment, he had consumed two 250ml cans of beer and Mr. Pangan had consumed three quarters of the bottle of whiskey.

[17] Mr. Green believed that the fight started between Mr. Pangan and Mr. Moffitt because they were both drunk and something was said between them. He wasn't certain it was a serious altercation to begin with, as it looked like Mr. Pangan and Mr. Moffitt were play-fighting. When Mr. Green saw Mr. Pangan stomping on Mr. Moffitt's head, he told Mr. Pangan they should leave, as Mr. Pangan was going to get arrested. Mr. Green and Mr. Pangan walked back to Mr. Green's apartment before Mr. Green kicked Mr. Pangan out for being too loud. Mr. Green observed Mr. Pangan carrying a football, wallet and white shoes, which belonged to Mr. Moffitt. Mr. Green stated that the last he saw of Mr. Pangan that evening was Mr. Pangan staggering down the street after being asked to leave Mr. Green's apartment.

2.3: THE MEDICAL EVIDENCE

[18] On consent the medical records reflecting Mr. Moffitt's hospitalization after the assault were admitted (Exhibit 11) as well as photographs of Mr. Moffitt taken in hospital on the night he was admitted (Exhibits 6a to 6d).

[19] The records show that Mr. Moffitt was unconscious when he was admitted to the Sunnybrook Health Sciences Centre at 11:30 p.m. on May 28, 2013. Upon admission to trauma centre, Mr. Moffitt was diagnosed with severe traumatic brain injury with diffuse axonal injury and a nasal fracture. He was also found to have suffered significant short-term memory impairment. He remained in the Intensive Care Unit before being transferred to regular care and eventually being discharged on September 26, 2013. The Discharge Summary notes that Mr. Moffitt will require ongoing cognitive and physical rehabilitation.

2.4: THE EVIDENCE OF MR. PANGAN

[20] Mr. Pangan testified. His evidence was relatively brief.

[21] Mr. Pangan is thirty-five years old. He has three children. He lived in a homeless shelter in Toronto for about three years before moving to an apartment in Scarborough about three months before he was arrested. He is supported by funds from the Ontario Disability Support Plan from which he receives $630 a month. He pays $140 in rent.

[22] Mr. Pangan has suffered from depression and panic attacks. He was prescribed Seroquel about a year ago to calm him down, which he is supposed to take twice a day. He has been admitted to a psychiatric hospital on what he described as "numerous" occasions. He has heard voices and experienced hallucinations in the past, for which he has been prescribed Zyprexa.

[23] Mr. Pangan admitted his criminal record (Exhibit 7), which included several breaches of court orders and assaults but no typical offences of dishonesty (with respect to his credibility, therefore, Mr. Pangan's record is of not much assistance). Mr. Pangan testified, however, that all of his trouble was rooted in his abuse of alcohol. He often has what he called blackouts when he drinks too much or when he gets panic attacks. He has drunk with Jason Green before.

[24] Mr. Pangan testified that he did not take his medication on the day of the assault because he was feeling depressed. He remembered going to the liquor store and began drinking with Jason Green that night and believes that he consumed a whole 750 ml bottle of Crown Royal.

[25] Mr. Pangan testified that because of his drinking he could not remember meeting Mr. Moffitt, and could not remember assaulting him, although he remembered going to the bank and getting involved in an altercation because the man at the ATM was taking too long. He could not remember if the man responded or what happened next. His next memory was waking up at a friend's house. He did not think he had been drinking between leaving the bank and arriving at his friend's house but based that not on any memory but on the fact that he did not see the bottle when he woke up.

[26] Mr. Pangan testified that he did not intend to kill Mr. Moffitt. Under cross-examination he testified that he was having a panic attack at the time of this incident because he had not taken his medication that day, although he had taken it the previous day.

[27] Mr. Pangan testified that he could not say why he acted the way he did, only that he believed it was mostly a product of alcohol consumption but also because he missed taking his medication.

[28] With respect to the property he stole from Mr. Moffitt, Mr. Pangan said that he did not remember putting it anywhere but that he told the police there were only two places he could have put it – either in the park or his apartment.

[29] Mr. Pangan denied that he told his friend Richard that he, "beat this guy up defending Green's honour." He did agree that he had told the booking sergeant the next morning when he was under arrest that "the guy attacked me, I was just saving my life". The booking video excerpt was played to refresh Mr. Pangan's memory and he acknowledged making that comment. He denied, however, that when he made that comment he had some memory of the fight and in fact said that he couldn't remember speaking in the booking hall.

3.0: THE POSITION OF THE PARTIES

[30] Crown counsel argues that the specific intent necessary to ground a charge of attempted murder can be found in the gravity and seriousness of the attack. The Crown contends that the seriousness of the wounds sustained by Mr. Moffitt and the repetitive nature of the attacks on several different occasions separated by some fifteen minutes can readily be interpreted as having been inflicted by someone who must have intended to kill.

[31] The Crown submitted that Mr. Pangan was an unreliable and incredible witness, having contradicted himself on two significant points: whether medication caused him to blackout, and his statements on whether he had taken his medication on the day of the offence. For the Crown, the crux of case is that in repeatedly kicking and stomping on Mr. Moffitt's head, Mr. Pangan must have known that he would kill him.

[32] For Mr. Pangan, Mr. Barhydt submits that the evidence does not amount to proof beyond a reasonable doubt that Mr. Pangan intended to kill Mr. Moffitt. He takes no issue with the proposition that the attack was vicious and prolonged but says that Mr. Pangan's denial that he intended to kill Mr. Moffitt and his claim of partial amnesia of the incident as a result of the consumption of alcohol should raise a doubt as to his specific intent to kill. In short, Mr. Barhydt submits that the evidence of intent is simply not sufficient to warrant a conviction for attempted murder. Rather, the evidence supports the view that in Mr. Pangan's condition, he simply never turned his mind to what the consequences of the assault would be.

4.0: THE INTENT COMPONENT OF ATTEMPTED MURDER

[33] As mentioned, the only issue to be determined is whether the Crown has proved beyond a reasonable doubt that when Mr. Pangan assaulted Mr. Moffitt he intended to kill him. In order to succeed on a prosecution for attempted murder the Crown must show that the accused acted with the specific intent to kill; no lesser mens rea will suffice: R. v. Ancio, [1984] 1 S.C.R. 225 at pp. 250-251. Put another way, The Crown must prove the accused acted with subjective foresight of the consequences of his conduct. Most significantly, while murder can be committed under s. 229(a)(ii) if the accused inflicts bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not, that identical conduct will not suffice for attempted murder where, even if only by good fortune, the victim survives the attack.

[34] The actus reus is complete upon the first step taken after preparation or formation of intent. Having formed the intent to kill, upon an accused doing any act required for the purpose of carrying out that intent, the offence is complete: R. v. Gordon, 2009 ONCA 170, [2009] O.J. No. 724 at para. 56 (C.A.). In the context of this case, for example, even if Mr. Pangan did not set out to kill Mr. Moffitt, if that became his intention at any point during the attack, even if only briefly, then the elements of the offence would be made out.

[35] In determining whether or not the Crown has proven beyond a reasonable doubt that the accused had the specific intent to kill, a trier of fact must use common sense, drawing inferences from all of the circumstances. In the absence of a direct expression of intention, the accused's specific intent to kill may be inferred from the totality of the facts, including the nature of the attack, the use of a weapon, the area of the victim's body that is attacked, the results of the attack, the evidence of premeditation or spontaneity, the presence or absence of defensive motivation, and any other surrounding circumstances that may form strands in the process of inference leading to a conclusion on the question of intention: R. v. Payne, [2013] O.J. No. 3412 at para. 20 (S.C.J.); R. v. Ryan, [2008] O.J. No. 3111 (C.J.)

[36] A trier is entitled to rely on the common sense inference that "a person usually knows what the predictable consequences of his or her actions are, and means to bring them about": R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438 at para. 64. That common sense inference can, however, be displaced if, after considering all of the facts and circumstances, the trier believes, or had a reasonable doubt, that the inference should not be drawn: R. v. Duguay, [1998] O.J. No. 277 at para. 8-10 (C.A.); R. v. Szanyi, 2010 ONCA 316, [2010] O.J. No. 1757 at para. 22 (C.A.).

[37] The accused may rely on evidence of intoxication to raise a reasonable doubt that he intended the consequences of his actions. Evidence of intoxication may raise a reasonable doubt as to the common sense inference applying to an accused, but intoxication does not invariably raise a reasonable doubt; it will depend on the circumstances: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at para. 92. Where the only question is whether the accused intended to kill the victim, intoxication short of incapacity will, in most cases, rarely raise a reasonable doubt: R. v. Robinson, [1996] 1 S.C.R. 683 at para. 52. Where the accused argues that he was incapable of forming the specific intent to kill the victim due to intoxication, the trier of fact may rely on evidence of the accused's motor skills, physical dexterity, social interactions, and ability to undertake goal-oriented behaviour: R. v. Innocent, [2008] O.J. No. 312 at para. 46 (S.C.J.)

[38] In the absence of additional supporting evidence, the fact that the accused suffered from a blackout—or alcoholic amnesia—is not, on its own, evidence that he did not intend the consequences of his actions at the time of the offence. In this case, the issue of capacity to form the intent is not relevant. The only issue is what role, if any, Mr. Pangan's intoxication had on his actual intention to kill Mr. Moffitt.

[39] Similarly, where the accused argues that he or she could not form the specific intent to kill due a mental or psychological condition, it is not a question of whether the accused was suffering from his condition at the time of the offence but, rather, whether the accused's condition rendered him unable to intend to kill the victim. For example, while an individual's psychological condition may leave him susceptible to impulsivity or disturbed reasoning, this does not mean that he is unable to intend the consequences of his actions at the time: R. v. Innocent, supra.

[40] Provocation is not a defence available to attempted murder, though provocative events may have resulted in a mental state not sufficient to constitute the specific intent to kill required for that offence: R. v. Campbell, [1977] O.J. No. 1684 at para. 32 (C.A.).

[41] Where, as here, many or all of these aspects of the intent for attempted murder are present, it is important to consider the cumulative effect of all relevant evidence in determining the adequacy of the evidence relating to the mental element in attempted murder, even if the same evidence does not raise a reasonable doubt about guilt when offered in support of a specific defence: see R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No. 2761 (C.A.) and the cases referred to at paragraph 104 of that judgment.

[42] This is particularly important in considering the link between intoxication and intent. As Lamer C.J. said in R. v. Robinson, supra, at para. 59:

In this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self-defence. Thus, while the jury may have rejected each individual defence, they may have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self-defence cumulatively on that issue. This is commonly known as the "rolled-up" charge.

[43] Mr. Pangan is, of course, presumed to be innocent unless and until the Crown proves his intention to kill beyond a reasonable doubt. There is no onus on Mr. Pangan to prove anything. Because Mr. Pangan testified, it is necessary to keep in mind the requirements of R. v. W.(D.), [1991] 1 S.C.R. 742. If I believe his evidence that he intended only to injure Mr. Moffitt, I must find him not guilty of the offence of attempted murder. If I do not believe his evidence, but it leaves me with a reasonable doubt, I must find him not guilty. It is only if I am satisfied on all the evidence that the necessary intention has been proven beyond a reasonable doubt that he may be found guilty and convicted of the offence.

5.0: ANALYSIS & FINDINGS

[44] There is no direct evidence of Mr. Pangan's intent. There is circumstantial evidence from which Mr. Pangan's state of mind might be assessed. In a circumstantial evidence case, guilt can only follow if the trier of fact is satisfied beyond a reasonable doubt that it is the only rational inference that can be drawn from the circumstantial evidence: R. v. Griffin and Harris, 2009 SCC 28, [2009] S.C.J. No. 28 at paras. 33-34.

[45] Inference-drawing must be firmly rooted in the evidence and is to be carefully distinguished from conjecture or speculation. The available circumstantial evidence must be evaluated cumulatively and as a whole based on reasoning or inference-drawing through probability. Each piece of evidence is entitled to a reasonable and even-handed assessment based on logic, common sense and experience taking into account both inherent probabilities and inherent improbabilities.

[46] In the appropriate case evidence of motive may circumstantially contribute, in the context of the whole of the evidence, to an assessment of the accused's guilt.

[47] The record reveals nothing said by Mr. Pangan either to the victim, a witness or the police that would amount to an admission that he intended to kill Mr. Moffitt. Here, the single most compelling indication of Mr. Pangan's intent is the nature of the assaultive acts themselves: they were brutal, violent, repetitive and directed at the most vulnerable part of Mr. Moffitt's body, namely his head.

[48] Mr. Pangan's conduct in deliberately taking Mr. Moffitt's property and returning on three occasions to the ATM kiosk could allow for the inference that he was aware of what he was doing and was fully cognizant of the danger that Mr. Moffitt could recognize him after the attack. To suggest, however, that Mr. Pangan tried to kill Mr. Moffitt in order to eliminate the possibility of him reporting him to the police comes perilously close to a speculative inference. Particularly when one bears in mind that the assault took place in a location where most people would know that surveillance cameras are almost certain to be found, in my view this line of reasoning cannot be sustained in the absence of any other evidence to support it.

[49] No weapon was used. This is not a case where, for example, the victim was shot at close quarters in circumstances where it is all but impossible to believe that the accused did not specifically intend the assault to be fatal: R. v. Bains, [1985] O.J. No. 41 (C.A.).

[50] With respect to motive, Mr. Pangan did not know Mr. Moffitt. He had no dispute with him that might support the inference that he attacked him with the intent to kill him.

[51] Mr. Pangan testified that he could not recall assaulting Mr. Moffitt. That amnesia would seem to be based on his claim to have consumed a significant amount of alcohol that night. Mr. Pangan has a history of alcoholism, drug abuse and use of prescription medication. As I observed Mr. Pangan's testimony he struck me as not unintelligent but as vacant, disengaged and almost disoriented. I have serious doubts about his claim of amnesia. He remembered events immediately before and surrounding the incident and, as Ms. Tsagaris pointed out, during his booking at the station the following morning he said that, "I was just saving my life because the guy attacked me" and, "I don't know what I'm being charged for, I was just protecting my life," comments which would seem to be inconsistent with his current lack of memory about the beating. I have trouble believing Mr. Pangan's denial that he remembered the assault on Mr. Moffitt.

[52] But my lack of belief in Mr. Pangan's denials does not necessarily translate into positive evidence of guilt. I must be satisfied based on the evidence before me that he intended to kill Mr. Moffitt. That requirement, of course, is what lies at the heart of the W.D. analysis.

[53] Ms. Tsagaris did not press Mr. Pangan at length in cross-examination. Perhaps confronting him with the recording of his acts may have forced some more meaningful concessions from him. But in all likelihood the Crown's questioning reflected a resignation to Mr. Pangan's inevitable unresponsiveness.

[54] When I examine the record carefully it is apparent that by far the strongest evidence of the intention to kill is the prolonged, repeated and violent nature of the assault itself. The sheer force of the attack on Mr. Moffitt cannot help but give one pause on the issue of intent. But after a careful consideration of all the evidence, I cannot be satisfied on this record that Mr. Pangan intended to kill Mr. Moffitt. I think it most likely that he knew he was causing him significant injury and I suspect he either didn't care about or didn't consider what the consequences of his acts would be.

[55] The impact of Mr. Pangan's mental health and, more especially his alcohol consumption could well have impacted his state of mind such that I have at least a doubt that he had actually been reflective enough to intend that Mr. Moffitt would die from his conduct. But in the absence of any other factors such as the use of a weapon, utterances of the accused or a motive, in my view the evidence is not sufficient to meet the exacting standard of beyond a reasonable doubt required to sustain a conviction for attempted murder.

[56] Mr. Moffitt survived; he could just as easily have died. Had he done so, a conviction for second degree murder would have been a likely result. But absent the specific intent to kill, Mr. Pangan cannot be convicted of attempted murder. While that may seem anomalous, and perhaps even unfair, it is what Ancio requires.

6.0: CONCLUSION

[57] Mr. Pangan is found not guilty of attempted murder. In accordance with his pleas entered at the outset of the trial he is found guilty of aggravated assault, robbery and possession of stolen property.

Released: May 1, 2014

Signed: "Justice Downes"