Court File and Parties

Court File No.: Central East - Newmarket 13-05365 Date: 2015-02-12 Ontario Court of Justice

Between: Her Majesty the Queen — And — Rodney A. Comer

Before: Justice P.N. Bourque

Counsel:

• J. Fuller for the Crown
• J. Struthers for the accused Rodney A. Comer

Judgment

Released on February 12, 2015

BOURQUE J.:

Overview

[1] On the sidewalk of a busy street in Keswick on a sunny July 6, 2013, it is alleged that the defendant struck a blow to Roy Robinson, which caused him to fall and strike his head on the pavement, which did wound, maim and endanger his life. The defendant pleads that while he did strike the blow to Roy Robinson, he is absolved of criminal responsibility because he acted in self-defence. The determination of this issue involves a review of the scene that day, and a scene at a local bar the evening before. While not determinative of the final issues, it is also an interesting review of how eyewitnesses at a scene of quick violence can have quite different views of what transpired.

The Crown's Evidence

Jacqueline Logan

[2] . . . was driving her convertible north on Metro Road near the intersection of Clarke Street. She stated she was travelling very slowly and noticed on her right that two men who were standing face-to-face to each other on the sidewalk on the east side of Metro Road. She believed that the people were having an "angry" conversation although she could not hear it. She stated that there was "posturing" and then she saw the defendant (whom she had never seen before) strike a blow to the jaw of the other man. She described it as "a cold cock and a hit to the underside of the jaw, it was a knockout spot". She describes the man (she insisted on calling him the victim throughout her testimony) as just falling straight back and he did not try to catch himself and he hit himself on the road. She stated that the victim did not make any motions to the defendant before the strike. She added that the head bounced off the pavement about one foot.

[3] She stated that she pulled up her car to protect the victim as he was partway onto the road. She stated that the victim was having a "seizure" and his eyes were rolling back into his head. She stated that she saw two cans of Redbow cider, one to his left and another between his legs. She did not see these in his hands before, although she assumed that is where they came from.

[4] She stated that the defendant was standing there with his hands clenched in fists and he looked "enraged". He stood there for a short time and then went to his black SUV which was parked on Clarke Street and he drove away. She added that he "rushed away, there was no should I stay or should I go". She stated that she had said to him "he is unconscious, call 911, call 911," but the defendant did not do so. She describes him as having anger in his face and she got his licence number BLAR 975.

[5] She described both persons as being about 5'10" tall. The victim was wearing a t-shirt and the defendant was wearing a cut-off shirt and she could see a tattoo on his arm. She said that the defendant (whom she identified in the stand) had blond hair shaved close to his head and wearing a "muscle shirt, tight fitting" and khaki shorts and blue green eyes and very "enraged". She described the victim as having black curly hair and he was muscular. She said the victim was wearing a t-shirt.

[6] In cross-examination, she admitted that since this incident, she had become good friends with the mother of the victim. She admitted that she is sympathetic to this victim. She stated that while she was being careful driving, she was driving slowly and could see the scene. She could not recall if she was listening to music. She stated that she smelled alcohol on the victim's body but not from his mouth. She referred to it as "old alcohol".

Opal Hustins

[7] . . . was a real estate agent and was driving to work south on Metro Road that day. She stated that she saw a group of people and a person lying on the road. She had some first aid training so she stopped her car nearby and went up to the person on the ground. It appeared that the man was starting to awaken and she assumed that he had been knocked out. The witness stared at him and told him her name and she asked him to tell her his name. He was moaning and groaning and was trying to sit up. She stated in her statement to the police that he did stand up at one point as "she could not keep him down". The witness assumed he had been hit by a car. The witness saw blood on the back of his head. He was spitting up blood and she saw a mark on his left jaw bone and it was swollen. She said the mark was above the jaw bone but closer to his chin than his ear. She at first thought the jaw was broken but he was moving his jaw. She did not observe any other injuries.

[8] She saw cans on the sidewalk and one was "spewing stuff out of it". She did not note any odours from the man, although by his speech, she thought he was drunk. She stayed with him and the ambulance came some 15 to 20 minutes later.

Joan Clarke

[9] . . . works as a receptionist at a real estate agency and knows the witness Opal Hustins as she is a real estate agent at another agency. She stated that she was driving her Ford Explorer. She was driving north on Metro Road, which she described as having a fair bit of traffic as it was "a weekend in the summer". She says she was travelling 50 kilometres per hour as that was the speed limit. She sees a SUV vehicle several car lengths in front of her and that vehicle turned abruptly onto Cedar Road, stop and she saw a man get out. She described him (the defendant) as 5'8", about 25 years old with short hair and a muscular build. He was wearing shorts and a t-shirt and all his clothes were "dark".

[10] She saw another man walking northbound along the sidewalk on Metro Road. As she went by, the two men were talking but the only words she heard through her open window was "last night". She describes the tone as "aggravated" and in an elevated volume. She did not see any other movements by either of them and did not see them "posturing" to one another. The witness also stated that she did not see anything in the "victim's" hands and certainly did not see any beer cans. She describes the victim as being about 5'8" with an average build and dark curly hair and was dressed in black cargo shorts and a white tank top t-shirt.

[11] She went past the persons on the sidewalk and then she said that she continued to watch them in her side and rear view mirrors. She stated that she saw the man who got out of the SUV (the defendant) as punching the victim with a closed fist on the right side of his face. She describes it as a "knockout punch". She said that the victim fell in a perpendicular fall, and hit the ground very hard. She stated that she turned into the first driveway on the right and then immediately backed out and went back. When she came to the intersection, she saw many people by the person on the ground so she followed the Black SUV driven by the defendant. At first the SUV was going slowly but it then sped up over the speed limit. The vehicle then went into a laneway near a plaza nearby. She got the licence plate number and returned to the scene. She spoke to a tow truck driver at the scene and gave him the correct licence number and he called the police.

[12] At the scene, the victim was making the effort to sit up and people there were trying to stop him moving around. She saw blood on the pavement but no blood on the man.

[13] The witness was vigorously cross-examined about her ability to see the blow in her outside passenger mirror while she was trying to safely navigate her vehicle forward. Quite frankly, it would be very difficult to keep any kind of a constant watch on the mirrors as she moved forward. Having said that, the blow may indeed have occurred at the moment she looked in her mirror. I note she immediately turned around, which would be some confirming information that she actually saw the blow.

[14] She was also cross-examined about whom she spoke to at the scene about what had happened. She denies speaking to anyone about the events other than the tow truck driver. This does not really seem realistic as this event must have been a shocking one for all present.

[15] She was quizzed about her recollection of the cans of beer. While her words changed somewhat in-chief and in cross-examination, she ended up say that the beer cans were not open.

[16] She also denied that her reflection about these events had coloured her testimony and denied that she was just looking for someone to blame.

Tracy Becker

[17] . . . is the former girlfriend of the defendant. On the evening of July 5, 2013, she went to the Offside bar with a girlfriend. While there the complainant (whom the witness did not know) was sitting near her and was asking her name and where she was from. She thought he had been drinking and she ignored him. The defendant came to join her and the complainant was staring at him. The defendant said "what is your problem?". She believes very soon afterward that the defendant was "escorted out of the premises" but he may have simply left as she did not know for sure. Very soon after he left, she saw him pressing his lips on the outside window of the bar, trying to get the defendant's attention and wanting the defendant to come outside for a fight. The defendant went outside but she did not think there was a fight and eventually the complainant was taken away in a cab.

[18] She describes his total behaviour as being very aggressive and at one point said he was a Hells Angel. She also heard him say words to the effect, "I'm gonna get you". She could not remember if he had said that he would "spray your house".

[19] After this, the witness and the defendant walked to his house and they spend the night. In the morning, they went out to breakfast and he drove her to where her car was parked. She got into her car and they were proceeding back to the defendant's house. The defendant was driving his black SUV about 3 cars ahead of her.

[20] She stated that she saw a man walking north on Metro Road and had a beer in each hand. She stated that the defendant's home was in the direction of the complainant's travel. She saw the defendant pull his SUV into a side street and then saw the defendant and the complainant standing beside each other. She did not see any gestures and did not see the defendant hitting the complainant. She said that they were very close but she is not sure if she saw the complainant "bump" the defendant. She saw the complainant fall and he fell backwards. She saw the defendant go to his car. The traffic had stopped when this happened but it then moved again and she passed a white convertible which was stopped at the scene.

[21] She went to the defendant's home but he was not there. She could not remember when he arrived at his house. She stated that the police came by later in the day looking for the defendant. She was asked about the incident and she lied to the police and told them that she had not seen anything and stated that she did not want to get involved. She went to the police some 4 days later because the defendant asked her to go there. She admitted that she had spoken to the defendant several times about the incident before going to the police.

Roy Robinson

[22] . . . the complainant, testified for the Crown. He is presently in custody awaiting several criminal charges. When questioned about the events of July 5th and July 6th 2013, he stated that he had not memory of anything that happened on those days. He seemed unable to speak of his injuries and seemed to have no knowledge of them. He acknowledged his criminal record. He was asked about the fact that he was in court on the same day on his personal matter, which was a sentencing on a finding of guilt against him on an aggravated assault. He professed not to know the facts of that matter.

The Criminal Record of the Complainant

[23] Filed as Exhibits 3 and 4 were the criminal record and two occurrence reports. The criminal record is as follows:

Date	Charge
April 4, 2005	Assault
December 12, 2007	Impaired driving
June 14, 2008	Assault
Aug 11, 2008	Drive Disqualified
June 2, 2013	Utter Threat and fail to provide breath sample

Medical Evidence

[24] Exhibit 3 is a brief summary of care from the Toronto Western Hospital in Toronto and Southlake Regional Health Centre in Newmarket. The defendant was diagnosed with a traumatic head injury with a left frontal contusion and left intracerebral hematoma. Several days after being admitted into care, he suffered a seizure and went into a coma, which required open brain surgery to repair. It appears from the records that the intervention was successful but there is no statement of prognosis nor is there a statement of his current condition one and-a-half years after the event. The defence concedes that the injuries sustained by the complainant would constitute a "wounding, maiming or disfiguring", as per section 258 of the Criminal Code.

The Defence's Evidence

Mike Gunn

[25] . . . is a resident of Keswick and was walking northbound on Metro Road on July 6, 2013. He was on the west side of the road and looked across to the other side of the road when he heard two men arguing. He saw a man without a shirt and a man in a tank-top shirt. He heard the man in the tank-top say to the other man "I'm gonna kill". He describes the man in the tank-top as being rowdy and aggressive and he describes that he has a can of beer in each hand. He says that he sees the man drop his beers from his hands and he goes to shove the other man. He believes that the man in the tank top then slips on his can of beer and falls down. By this point the witness is past the scene and sees a white convertible stopping. He continues to walk. He states that several days later he was looking at the York Regional Police website where they are asking for witnesses to the scene. He then goes to the police with his story.

[26] It was revealed that the witness was at the time a frequent user of the drugs OxyContin and phentonol. He had some OxyContin that morning at his friend's house. He also stated in cross-examination that there may have been a blow struck against the man who fell down when he was not looking directly at them. He also agreed that both of the men were yelling.

[27] In many ways, this witness's evidence has a similar problem to the evidence of the witness Joan Clarke, in that there were some serious impediments to their ability to observe the scene. However, he obviously responded to the police request for people to come forward in this matter and he felt the need to do so, notwithstanding his wish not to get involved. He does not know the defendant or the complainant.

Jamie West

[28] . . . is a friend of the defendant and is 40 years old and a contractor. He attended the Offside bar with a friend on the evening of July 5, 2013. He got there between 11:00 and 12:00 o'clock. He stated that upon arrival, he very quickly was aware of the presence of the complainant whom he said was "being aggressive and rude". He describes the complainant as having had too much to drink and was being rude to the ladies and was offending people. The witness knew of the complainant and stated that he had a bad reputation as a dangerous man. The witness knew the owner of the bar, Ali, and stated that the owner asked the complainant to leave the premise. The complainant became very loud and aggressive on going outside and he was yelling while outside and was banging at the windows near where the defendant was sitting. (The witness was not sure when the defendant came into the bar). The complainant was screaming saying "I'm gonna find out where you live and shoot you and spray your house". He also said "I'm a hells angel and I'll spray it with an AK47, I'll spray the bar with an AK 47".

[29] The witness stated that this went on for about 10 minutes or so and several people went outside including the defendant. The witness stated he was trying to diffuse the situation with the complainant. The witness stated that he knew the owner of the bar and was concerned for him and his bar as a result of the statements of the complainant. He described the complainant as a "menace", and he was hoping that the complainant would not beat someone up. He agreed that the defendant and the complainant had some words together and believed that the defendant said to the complainant: "What is your problem?". He heard the complainant say to the defendant that he would shoot him. Eventually the complainant is put in a cab and he leaves.

Ali Sabbaghi

[30] . . . is the owner of the Offside bar in Keswick. He did not know the complainant. He stated that on the evening of July 5, 2013, people had complained to him about the complainant that he was rude and trying to "hit" on some women. He went up to the complainant and asked him to leave but he did not do so. He noticed later that the complainant and the defendant were at the same table and they were talking to each other. The witness said he got more complaints about the complainant and asked him to leave again. His security person walked him outside. When going out and when outside the complainant began to yell and yell at the defendant asking him to come outside and fight. The complainant was saying: "I'm gonna kill you, I'm gonna bring guns here. You don't know, my family are hells angels, I'm gonna burn the bar".

[31] The witness called 911 but was told that the police would not come just for a person yelling in the parking lot. The witness then called for a cab which eventually came. The witness went outside and tried to put the complainant into the cab. Many people had by now come out from the bar, including the defendant. The complainant broke away from the witness and ran up to the defendant and several people stopped him. Eventually the complainant left in the taxi.

Rodney Comer

[32] . . . testified on his own behalf. He is 40 years old and has two children and a step child. He is a contractor, and owns his home in Keswick, where he has lived all his life. In July, 2013, he was not seeing his present spouse (they had an on and off again relationship) but was seeing Tracy. He admitted that he had a criminal record for an assault.

[33] He stated that on the evening of July 5, 2013, he went to the Offside bar that evening after work. On arriving, he made note of a man arguing with the bouncers and being loud. He met his girlfriend Tracy and her friend and got drinks from the bar and sat down. He stated that very soon after sitting down at a long table (near the window), the complainant (whom he had never met before) sat down across from him and gestured for the defendant to come closer and he said "You're in my fucking seat". He looked over to the girls and they said that they didn't know him. The person said to the defendant, "If I tell you again there is going to be trouble". The complainant put his arm onto the defendant's head and asked him to go outside and that "he was going to kill him". The complainant made reference to Hell's Angels and said that he was going to shoot him.

[34] The complainant stood up and his stool fell over, and said to go outside. The defendant started to follow him outside but at the door, he changed his mind and he returned to his seat. The complainant then came up to the outside window and began yelling, mainly at the defendant. This went on for some 15 minutes and caused most of the people in the bar to go outside. The defendant eventually went outside but at no time did anybody have to "hold him back" from the complainant.

[35] He stated that the complainant was continually trying to get at him and had to be restrained several times. The complainant continued to yell at him saying "I'll come back and shoot up the bar, and I'm gonna find out where you live and come and get you". The defendant yelled at the complainant to get into the cab and he finally did. Upon his return to the bar, he said that his friend Jamie West spoke to him and told him what a dangerous man the complainant was. The defendant, still believing that it was mainly alcohol talking, walked the short distance to his home with his girlfriend.

[36] The next day he and Tracy went out to breakfast and then went to a spot where her car had been parked (at a friend's house) and then they proceeded to go to his house in separate cars. He stated that they were planning to go camping that day with his children (who were living with his ex-spouse) who were being delivered shortly to his house.

[37] He stated that as he was driving up Metro Road, he had slowed to let a car turn in front of him and he saw a man walking in the same direction on the sidewalk. He stated that the man turned and they made eye contact and he realized it was the same person he had seen last night (the complainant). He stated that the complainant moved towards his car (which was still moving slowly) and said that "he was on his way to see me", among other things. The defendant made the decision to stop and confront the complainant.

[38] He pulled his car onto Cedar, parked and left it running. He stated that because the man was now sober, he could talk to him, but in any event, he did not want him to come to his home as his children were coming soon. He stated he went up to the complainant and stood before him and said "What is your problem?". The complainant, who was holding a can of beer in each hand, stated "You didn't think I'd find out and I'm gonna kill you" and "It's a small town". The defendant stated that the complainant dropped one of the beers and he believed that he was making a gesture to strike a blow to him and he (he said it was instinctive) immediately struck the complainant a blow to his chin. The complainant began to fall, stepped on the can of beer and continued to fall, hitting the ground.

[39] He stated that he saw that a person was immediately coming to him and he saw the complainant trying to get up and he went to his car, paused and then drove to his house. He stated that Tracy was there shortly thereafter and his kids came and they collected their things and went off to camp. He was contacted by the police about 2 hours later and he, several days later, went into the station and gave a statement.

[40] He stated that he was still worried that there may be repercussions from the "Hell's Angels" so he kept in contact with the police for some time thereafter.

[41] It was his evidence and he was cross-examined extensively about these issues, that he had no dislike of the complainant and all his actions were taken as a result of fear that the complainant, after he saw him on the street, would come to his house and seek to harm him or his family. He also stated that his stopping at Cedar Drive was to speak to him in the hope that the complainant would be more reasonable now that he was not drunk. He asserted that he had no intention to fight and only struck the blow that he did because he believed that the complainant was going to strike him.

Analysis

The Law

[42] The Crown bears the burden at all times of proving the essential elements of the offence beyond a reasonable doubt. As stated in: R. v. Lifchus, [1997] 3 S.C.R. 320:

• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

• a reasonable doubt is not a doubt based upon sympathy or prejudice;

• it is logically connected to the evidence or absence of evidence;

• it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and,

• more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

[43] I must also instruct myself of the weighing of the evidence of a defendant who provides a version of events which, if believed could afford him a defence.

[44] R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.) at pg 409 states:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[45] The evidence raises the defence of self-defence, and based upon all of the evidence, it has an air of reality and therefore the burden falls upon the Crown to prove beyond a reasonable doubt that the actions of the defendant were not taken in self-defence. The elements I must consider are contained in section 34 of the Criminal Code:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[46] As I review these sections of the Code, if I accept the evidence of the defendant, or if it leaves me with a reasonable doubt, then I believe that it could be sufficient to fall within the rubric of self-defence.

The Evidence

[47] With regard to the evidence of Jacqueline Logan, Opal Hustins, and Joan Clarke, I must say that within the capacity for them to see what was occurring in a fast moving scenario and in a frightening scenario, I can and do accept their evidence as to what transpired on that sunny day on the main street in Keswick. That they were shocked by these events stands to reason. They all reacted in a laudatory fashion and in a way that good citizens should. I also accept that Tracy Becker and Mike Gunn were trying to relate as best they could the events as they recalled them. I have no doubt that they did not see the blow being struck but I also have no doubt that they were engaged in other tasks and did not see all that happened.

[48] With regard to the evidence of Roy Robinson (the complainant) there is very little to be made of it. Other than his acceptance of his criminal record, he adds nothing to the scenario. I make no adverse findings against him because of his lack of memory. The injury suffered in this incident could be a real explanation.

[49] I do however, from the totality of the other evidence (his record and occurrence reports) and the evidence of the witnesses (West, Ali and Becker) make specific findings that the complainant was prone to violence and had a general reputation in the community for violent behaviour and by the time that the defendant and the complainant met on Metro Street that day, the defendant was aware of this reputation.

[50] I believe that the defendant only became aware of that reputation as the evening progressed on July 5, 2013, and while he discounted it because of the level of intoxication of the complainant that night, by the time he met him on the street, the combination of the words spoken to him while he was in his car and the words and actions of the complainant in the moments before the blow, brought to his mind that the complainant was dangerous.

[51] The essence of his defence is described by him as follows:

(i) there was the actions of the complainant at the roadside and the threats from the evening before which led him to believe that he was under a threat of force for him certainly, and perhaps some of his family as described by him the act was to protect himself from the blow that he believed was coming from the complainant;

(ii) the blow, while certainly severe, was not so severe in and of itself to break bones, it was the secondary impact which caused the injury to the complainant and as stated in R. v. Ogal, 50 C.C.C. 71: "it was of course not possible for him to measure with nicety just the amount of force necessary to protect himself, under all the attendant circumstances.

[52] I also note that the actions of the complainant and the totality of the words he hurled at the defendant would lead anyone to believe that the threat was significant. As related by the defendant, he felt that a blow was coming immediately. While the defendant put himself at the location on the sidewalk, the question is whether that was unreasonable. Based on his explanation, it would not be. There were certainly previous threats by the complainant that he would use a weapon. The parties were not the same physical build but not of such great a disparity as to make this relevant to my analysis. The history of the previous evening speaks for itself. I have already discussed the proportionality of the response and the complainant was certainly not lawful.

[53] With regard to the total evidence of the defendant, it is not without blemish. I believe that his quick leaving of the scene could be some consciousness of guilt but I accept that it was a quick decision and he believed that he did not injure the complainant as seriously as he did. I believe that his decision to stop his vehicle and confront the complainant was more than just unwise. It was certainly reckless. I am not able to say however, that it proves that he was seeking a fight with the complainant.

[54] Even if I am not completely convinced to accept all of his evidence, I must ask if (on the second part of the test in W. D. ) whether it could leave me with a reasonable doubt. I must say that it does. For me to think otherwise, there would have to be some significant evidence that the defendant was seeking out the complainant on that morning. There was no evidence of that and even no evidence that it was something preying on his mind. I have the impression from his evidence that if he had not seen the complainant on the street and did not receive any further threats from him, that he would not have taken any further steps. There is no evidence that he was seeking revenge. There is no evidence that Tracy even told him of the rudeness of the complainant to her earlier in the evening.

[55] As I have said, while the stopping of his vehicle was unwise and reckless, based on all of the things that had happened, I do not find it an improbable action. I do not think that imparts upon him a prior intention to assault the complainant.

Conclusion

[56] A series of events led to the outbreak of violence on the sidewalk of Metro Street on a warm sunny day in July. Any observer of the violence that day could be forgiven for coming to the immediate conclusion that a young man was seriously injured by the criminal actions of another young man.

[57] A casual observer would not have been privy to all of the events that had transpired between these two men over the past 18 hours and would not have the burden that I do, of sifting through the competing versions and applying that evidence to the law, and most importantly the casual observer would not have upon their shoulders the burden that the Crown has, of proving all of the elements of this offence beyond a reasonable doubt. Such proof includes negating the defence of self-defence.

[58] For all of the reasons as set out above, I find myself left with a reasonable doubt about the guilt of the defendant and I therefore acquit him of the charge.

[59] The defendant is found not guilty.

Signed: "Justice P.N. Bourque"

Released: February 12, 2015