Court File and Parties

Court File No.: 13-385 Newmarket Date: February 21, 2014 Ontario Court of Justice – Youth Court

Between: Her Majesty the Queen — and — M.Z.

Judgment

Heard: January 31, 2014 Judgment and Reasons: February 21, 2014

Counsel: Ms. Shambavi Kumaresan, for the Crown Mr. Richard Stone, for the Young Person M.Z.

KENKEL J.:

Introduction

[1] M.Z. is charged with assault and uttering a death threat in relation to an incident at his high school.

[2] The Crown's central witness and the accused both agree that there was an altercation at school but they give completely different accounts as to what happened. Credibility is the central issue in determining whether the Crown has proved the count alleged beyond a reasonable doubt.

Evidence at Trial

[3] The Crown's witnesses are still students at the same high school as the accused. I will refer to them by the order of their testimony.

[4] The Crown's first witness testified that he overheard the accused say words to the effect that he wanted to steal something from the alleged victim. In cross-examination it was brought out that the accused said he wanted to "jump" the complainant. The witness became concerned and notified the complainant that the accused was planning to do something to him.

[5] Later that day another classmate was standing by the complainant's locker when she saw the accused approach with a group of friends. She heard the accused demand that the complainant tell him the name of the person who had warned him about being robbed. The accused threatened that if the complainant didn't reveal the name he would stab him and make sure that his family saw his death. The accused said the words in an angry tone.

[6] The witness saw MZ grab the complainant near the collar area and push him back into his locker. MZ slapped the complainant and then the complainant pushed him off. MZ walked away but then came back from behind, grabbed the complainant's head and hair and went towards the wall. The complainant turned red and appeared scared. It stopped when a teacher was seen in the hallway.

[7] MZ testified for the defence. He agreed that he'd heard that the complainant was told that MZ was planning to rob him. He recalled approaching the complainant in a respectful way to discuss the rumour. For no reason the complainant became angry and started yelling. MZ told him to calm down but the complainant grabbed him by the shirt. Again for no reason the complainant started punching him. MZ was hit repeatedly and had "scratches everywhere".

[8] MZ added that the complainant had also made a gesture that looked like he was going to pull out a knife. MZ said that the complainant is known to carry knives and has pulled knives out on other people in the past. MZ testified that the complainant is a drug dealer and on another occasion he asked MZ to become involved in drug trafficking, working as protection given MZ's size. MZ declined. MZ testified that he had no idea why the complainant would make such an offer to him other than his size.

[9] After the incident at the locker MZ testified that the complainant later called him a name as MZ approached the cafeteria.

[10] All of this shocked MZ as there was no reason for the complainant's behaviour and MZ did nothing but try to calm him down.

Submissions of Counsel

[11] With respect to the assault, the defence submits that this was a consensual confrontation and says that can't be challenged as the Crown didn't call the complainant. The defence submits that there's ambiguity with respect to the alleged threat, that it wasn't taken literally and that there's no evidence the complainant was intimidated.

[12] The Crown submits that the accused's testimony is not credible given internal inconsistencies and the fact that it's inconsistent with the credible external evidence of the two Crown witnesses. The Crown submits that there's direct credible evidence of an assault and threat.

Analysis

[13] The first Crown witness was a friend of the complainant but also knew the accused and had worked with him on a joint project in a class that term. Both witnesses agree that they got along well and there were no issues between them.

[14] The first witness testified in a straightforward, factual manner. He was in a good position to hear the conversation he described and his reaction in warning the complainant is a logical response to what he heard. The accused's evidence also is consistent with a warning having been provided.

[15] MZ confirmed that the second Crown witness was where she said she was, close by the incident at the locker and in a good position to make the observations she described. The second witness also testified in a factual manner although it was plain that she was reluctant and somewhat upset about having to testify in a case against a fellow student.

[16] The second witness had recently arrived at that school. She knew both the alleged victim and the accused although she knew the complainant a bit better at the time. She does not presently socialize with either. There's no evidence that she has any motive to favour either party or to fabricate or exaggerate her evidence in relation to the accused.

[17] The confrontation described by the second witness is consistent with the evidence of the first witness as to the demeanor of the accused and his animus towards the complainant. Her account proceeds in a logical fashion describing a confrontation which then progresses to a physical escalation by the larger accused towards the smaller complainant.

[18] There's no sign of embellishment in her evidence and she admitted that now, many months later, she doesn't recall some of the smaller details that were asked. Even though she referred to giving a contemporaneous statement to the police which contained those details, the Crown did not put that statement to her to refresh her memory. It was never suggested though that the witness added details today not in her original statement or deviated from that statement to the police. I find her lack of memory on certain details understandable given her age (17) and the passage of time. I don't find that could reasonably detract from the credibility of her evidence on the central points.

[19] M.Z. admits that he was concerned enough about what the complainant was told to approach him and confront him. He described his approach as respectful. On his evidence there's no reason for the complainant to be angry and no reason for the complainant to start yelling at him. He gives no reason why the complainant would grab him and according to MZ there was no reason why the complainant would punch him. According to M.Z. the first Crown witness also acted without any reason in warning the complainant as M.Z. did not say anything about robbing the complainant that day in class.

[20] MZ describes his own actions as calm and reasonable throughout. He described the incident escalating for no reason despite the calming words on his part. He also described the first Crown witness on another occasion yelling at him in a random fashion without cause or reason despite the fact that they had been good friends and lab partners. When describing that incident M.Z. added that he thought the first Crown witness was at times disrespectful to teachers. When asked about his own behaviour he stated that he'd never been disrespectful, that he goes to school, gets his work done and then leaves.

[21] I find MZ's evidence is unlikely in the description of his own perfect actions throughout and his description of the irrational demeanor and illogical actions of the others.

[22] Although neither counsel asked the accused his height or weight, he did appear to be over 6 feet in height as described by the second Crown witness with a stocky muscular build. The same witness described the complainant as smaller – 5 foot 9 inches. Given the difference in their height and build, M.Z. claimed he was asked to provide protection for the complainant. While I don't accept that claim, I find the difference in their size is a circumstance which makes M.Z.'s account of the incident less likely but is consistent with the evidence of the second Crown witness.

[23] M.Z.'s testimony appeared exaggerated on a number of points. For example, in cross-examination he testified that when the smaller complainant pushed him, it was so hard that despite his size he flew over to the wall.

[24] M.Z. also added prejudicial claims in relation to the complainant. He said the complainant was known to carry weapons and knives at school. He said the complainant had pulled out knives on people in the past. He said the complainant is a drug dealer who tried to hire him to provide protection for his drug business. None of these claims were backed up by any other evidence and none were put to the Crown witnesses who knew the complainant.

[25] The accused's evidence completely contradicted the evidence of the young woman who witnessed the events at the locker, yet none of the accused's anticipated evidence was ever put to the Crown witness. On the contrary, it was repeatedly suggested to her in cross-examination that the incident was a very minor one and that's why she didn't report the matter.

[26] There's no duty upon the defence to call any evidence and I'm mindful that the Crown did not object to the defence breach of the rule in Browne v. Dunn (1893) 6 R 67 (HL). Nevertheless, in this case I find that the choice to suggest to the Crown witness that the incident is a minor one, and to not to alert the that witness to the dramatically different evidence the defence planned to call, is a circumstance which must limit the extent to which the defence evidence can be said to impeach the credibility of the Crown witness's evidence. R. v. Dexter 2013 ONCA 744.

[27] Considering the evidence heard at trial as a whole, I find both Crown witnesses testified in a neutral factual manner. Their evidence was logical and internally consistent. There's no evidence that either had a motive to fabricate or bore any animus towards the accused that could affect their objectivity. I find their evidence to be credible and reliable.

[28] In addition to certain internal inconsistencies identified by the Crown, the accused's evidence was illogical, exaggerated at points and contradicted by external credible evidence. He was not a credible witness and I cannot accept his testimony as true nor could it reasonably leave a doubt with respect to either count.

[29] The Crown did not call the complainant to testify. As with the other Crown witnesses, the court was advised that the complainant still attends the same high school and was reluctant to testify. When he failed to attend the scheduled trial date the Crown decided to proceed on the evidence they had. Neither party sought an adjournment to obtain his attendance. In that context the defence submits that the Crown has not proved that the altercation was not a consensual fight. While the Crown witness and the accused differed as to who was the aggressor, neither described a consensual fight. There's no credible evidence to support that submission.

[30] The defence submits that there's no evidence that the witness or the complainant took the death threat literally in the sense that they thought the accused was about to kill the complainant. Without evidence of a serious intention to kill behind the threat or evidence at least that the complainant apprehended death the defence says the threatening death charge is not proven.

[31] The threat to kill the complainant and make his family watch his death is a threat to cause death within the meaning of s.264.1. The Crown is not required to prove that the accused intended to carry out the murder nor is the Crown required to prove that the complainant was intimidated by the threat. See: R. v. McRae 2013 SCC 68. Here the words used and the context in which they were uttered shows that they were meant to intimidate and did in fact that that effect.

[32] I can find no credible evidence that could reasonably leave a doubt on either count. The Crown has proved both charges.

Released February 21, 2014

Signed: Justice Joseph F. Kenkel