Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Clinton McDonald

Before: Justice A.J. Hall

Heard: July 24, 2014

Reasons for Judgment Released: September 29, 2014

Counsel:

• D. Steinberg for the Crown
• C. Brunet for the accused Clinton McDonald

A.J. HALL J.:

INTRODUCTION

[1] On 24 July 2014 Mr. Clinton McDonald, a 22-year-old young man, entered a plea of not guilty to one count of assault before me.

[2] The assault was alleged to have occurred in the holding cells here in the Scarborough courthouse.

[3] Mr. Clinton McDonald, his former co-accused Mr. Christopher Young, and the complainant, Mr. Shawn Newsome, were involved in a verbal confrontation which escalated to an assault on Mr. Shawn Newsome.

FACTS

[4] The Crown's case centred entirely on the surveillance video that captured the incident in the cells on the day in question.

[5] The surveillance video unfortunately recorded only the actions of the individuals in the cell, but not the sound; therefore, it was not possible to tell what was being said by the individuals in the cells.

[6] The surveillance video clearly depicted what can be inferred from the actions of these three young men, a dispute or confrontation in the cell area.

[7] The surveillance video ultimately showed the person identified as Mr. Shawn Newsome walking in the direction of the person identified as Mr. Christopher Young.

[8] Seated on a concrete slab to the right of Mr. Shawn Newsome was Mr. Clinton McDonald. There is no dispute that Mr. Clinton McDonald got up from the seated position and struck Mr. Shawn Newsome with his fist to start the fight.

[9] Both Mr. Clinton McDonald and Mr. Christopher Young delivered a combination of punches and kicks to Mr. Shawn Newsome, who eventually fell to the ground.

[10] It is evident from watching the surveillance video that Mr. Shawn Newsome was seriously stunned from the blows he received from both young men.

DEFENCE EVIDENCE

[11] Mr. Clinton McDonald testified in his own defence – essentially he gave voice to the surveillance video from his perspective.

[12] Mr. Clinton McDonald testified he was in custody at the Scarborough courthouse facing a charge of theft. Mr. Christopher Young, a friend of his, was in custody as well. Both young men are from the Malvern community in the northeast quadrant of Scarborough.

[13] In the cells on the day in question, Mr. Clinton McDonald and Mr. Christopher Young encountered Mr. Shawn Newsome, the complainant.

[14] Mr. Clinton McDonald described Mr. Shawn Newsome as "weird" in his evidence. Mr. Shawn Newsome was talking crazy, specifically about having a chip in his brain and some people put cameras in his house.

[15] According to Mr. Clinton McDonald, Mr. Shawn Newsome asked Mr. Christopher Young where he's from, Mr. Christopher Young replied Malvern.

[16] Then Mr. Shawn Newsome said: ask your father about me bitch. You could get "jook", meaning stabbed. Mr. Clinton McDonald according to him became concerned for his own safety because he's from the same community of Malvern, and this community is known to have problems with other communities in the Toronto area.

[17] The three young men traded insults. After that, according to Mr. Clinton McDonald, Mr. Shawn Newsome went to the toilet area in the cells. It appeared to Mr. Clinton McDonald that Mr. Shawn Newsome was "unbanging" meaning he was removing an object from his rectum.

[18] Mr. Clinton McDonald testified that Mr. Shawn Newsome told him and Mr. Christopher Young that they are going to get it. He understood this remark to mean they are going to be stabbed.

[19] Mr. Clinton McDonald in his testimony claimed to have seen an object, "a shank," being clenched in the hand of Mr. Shawn Newsome. He described the object as a nail about 2 to 2 ½ inches long, with a brownish wrapping on it.

[20] According to Mr. Clinton McDonald, Mr. Shawn Newsome came at himself and Mr. Christopher Young armed with a shank three times as if to start a fight. On the first two occasions when he walked towards them they exchanged insults. On the third occasion Mr. Shawn Newsome was walking aggressively towards Mr. Christopher Young, Mr. Clinton McDonald who was sitting on a concrete slab to the right of Mr. Shawn Newsome, was of the view that he or Mr. Young was going to be attacked.

[21] According to Mr. Clinton McDonald, Mr. Shawn Newsome was saying: "you guys don't know who your F n with, you guys can get X out." Mr. Clinton McDonald understood this to mean he was going to hurt them physically.

[22] Mr. Shawn Newsome was walking towards Mr. Christopher Young, Mr. Clinton McDonald at this point jumped from his seat and struck Mr. Shawn Newsome. Mr. Christopher Young then joined in the fight. Mr. Clinton McDonald and Mr. Christopher Young jointly overpowered Mr. Shawn Newsome by delivering several kicks and punches to him. This continued even when he was on the ground.

[23] Mr. Clinton McDonald in his testimony claimed he struck Mr. Shawn Newsome because he was of the view either he or Mr. Christopher Young were going to be attacked. In other words he was simply defending himself from an attack.

[24] The issue that I must resolve is this: has the Crown proven the case beyond a reasonable doubt, and whether or not Mr. Clinton McDonald was defending himself in the circumstances of this assault.

POSITION OF THE DEFENCE

[25] The defence argued the video that captured the assault is not of sufficiently good quality to show whether or not the complainant had a shank in his hand.

[26] As well the defence vigorously asserted that Mr. Shawn Newsome assaulted Mr. Clinton McDonald, by gesture and acts (threat to stab or exed out) and that Mr. Clinton McDonald was defending himself on the day in question.

POSITION OF THE CROWN

[27] Crown counsel submits the actions of Mr. Clinton McDonald and Mr. Christopher Young that were captured on the surveillance video represented nothing less than the desires of both young men to administer a beating to Mr. Shawn Newsome.

[28] The circumstances of this assault have nothing to do with self-defence, Mr. Shawn Newsome was an unarmed individual who suffered a vicious assault at the hands of Mr. Clinton McDonald and his former co-accused, Mr. Christopher Young. Essentially the Crown submitted Mr. Clinton McDonald had no genuine reason to fear harm from Mr. Shawn Newsome because he was unarmed and it was a fight of two against one.

LAW

Credibility Analysis

[29] I am bound by the principles in R. v. W.(D.), because the accused Mr. Clinton McDonald testified. If I believe the accused, I must acquit; even if I do not believe the accused, if having regard to his evidence in the context of the whole case, I have a reasonable doubt, I must acquit and finally even if I disbelieve his evidence or it does not raise a reasonable doubt, if I have a reasonable doubt on the whole of the evidence that I do accept I must acquit.

Self-Defence against Unprovoked Assault

[30] Section 34(1) of the Criminal Code reads: "Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling the force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself."

[31] To assess the claim of self-defence I must determine the following issues:

1. Was Mr. Clinton McDonald unlawfully assaulted by Mr. Shawn Newsome?
2. Did Mr. Clinton McDonald provoke the assault?
3. Was the force used in response by the accused to the complainant intended, or not intended, to cause death or grievous bodily harm?
4. Was the force used by Mr. Clinton McDonald more than was necessary to enable him to defend himself in the circumstances?

DISCUSSION

[32] After reviewing the surveillance video, I found it was of sufficiently good quality to show whether or not Mr. Shawn Newsome had a shank in his hand. At several points during the surveillance video the hands of Mr. Shawn Newsome were visible, I saw quite clearly he didn't have any object of any kind in his hands. More specifically he did not have a 2 ½ inch length shank in his left hand.

[33] This fact objectively contradicted the evidence of Mr. Clinton McDonald. Therefore I find there was no shank in hand of Mr. Shawn Newsome.

[34] This finding leads me to have concluded Mr. Shawn Newsome could not have threatened Mr. Clinton McDonald with a shank because he didn't have one. Therefore Mr. Clinton McDonald was not assaulted by Mr. Shawn Newsome by means, act or gesture.

[35] Mr. Clinton McDonald in his evidence offered two possible reasons for the confrontation. The first is that Mr. Shawn Newsome is a member of a community in Toronto, where its members are in conflict with some members of the Malvern community.

[36] The difficulty with this proposition is that there is no evidence as to where or which community Mr. Shawn Newsome is from. There is no basis in to conclude the confrontation was a result of tension between two communities.

[37] The second proposition, according to Mr. Clinton McDonald's evidence, was that Mr. Shawn Newsome suffered from mental illness, to use his words he was "crazy". What does this mean in the context of the fact situation of this case – a "crazy" man in the cells, armed with a shank, and threatened to harm Mr. Clinton McDonald and Mr. Christopher Young? Despite this reality Mr. Clinton McDonald seated himself on a concrete slab not far from Mr. Shawn Newsome.

[38] The situation makes little sense to me, and it defies common sense that Mr. Clinton McDonald would leave himself in such a vulnerable position, knowing full well that harm to him could be imminent.

[39] What makes more sense is what the surveillance video revealed: Mr. Shawn Newsome was walking in the direction of Mr. Christopher Young, his purpose unknown, and Mr. Clinton McDonald took it upon himself to strike Mr. Shawn Newsome with his fist. And then he and Mr. Christopher Young delivered a combination of punches and kicks to Mr. Shawn Newsome.

[40] For the above reasons I reject the evidence of Mr. Clinton McDonald. And on those facts I accept, I find self-defence was not a live issue in this case.

CONCLUSION

[41] I find the Crown has proven the case beyond a reasonable doubt. Mr. Clinton McDonald, I find you guilty of one count of assault.

Released: September 29, 2014

Signed: Justice A.J. Hall