Court File and Parties

Court File No.: Brampton 11-5065 Date: March 18, 2015 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen

— And —

Donald Barber

Before: Justice Richard H.K. Schwarzl

Heard on: March 6 and 7, 2013; October 29, 2013; January 26 and 27, 2015

Reasons released on: March 18, 2015

Counsel:

• Mr. Vickramjeet Aujla for the Crown
• Mr. Davin Charney for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In April, 2011 a City of Mississauga Bylaw Enforcement Officer, Mr. Terry Carew, responded to a property standards complaint. When the officer went to investigate the complaint he encountered the Defendant, Mr. Donald Barber who lived at the subject property. A clash took place between the two men during which it is alleged that Mr. Barber deliberately struck Mr. Carew in the face with a digital camera. Mr. Barber denies the allegation. What is more, Mr. Barber alleges that his section 7 Charter right was breached by the Peel Regional Police when they lost an audio recorder found on his person when he searched after his arrest.

[2] What follows are my reasons for judgment on both the Charter application and the criminal charge.

2.0: EVIDENCE

2.1: Prosecution Evidence

2.1.1: Halyna Kupetska

[3] Ms. Halyna Kupetska lives beside the Defendant on Exbury Crescent in Mississauga. In April 2011 she called the City of Mississauga to complain about the poor condition of the Barbers' property. She described the property as littered with junk. Shortly after making her complaint, she saw a bylaw inspector attend the Barber residence.

2.1.2: Terry Carew

[4] Terry Carew ("Carew") has been a bylaw enforcement officer and property standards officer with the City of Mississauga since the fall of 2006. Prior to that he was a policeman for nearly twenty-five years.

[5] On April 19, 2011 Carew was on duty when he received a property standards complaint regarding the Defendant's house. He responded promptly and arrived at around 11:45 a.m. He followed policy to attend the property without first calling the occupant. Prior to attending, Carew had no prior knowledge about the property, the owner or any occupants. He never met, nor heard of, the Defendant before.

[6] In the front yard Carew saw automobiles and other clutter, with more debris on the side yard leading to the rear. He knocked on the front door several times and waited without any reply. Acting under the authority of the City's Property Standards Bylaw, the Ontario Building Code, and the Ontario Planning Act, the officer felt he had grounds to continue his inspection of the entire outside including the rear yard. He took photos of the front, side, and rear yards.

[7] While Carew was inspecting the rear yard and taking photos, he heard a bang from behind him. He turned and saw the Defendant in the back door. Carew stopped taking pictures and approached the Defendant to identify himself because the Defendant was obviously an occupant of the dwelling. As he approached, Carew took out his badge and a business card to produce to the occupant as part of his duties. At this point, the Defendant went back inside the house.

[8] Carew knocked on the back door. The Defendant opened the door suddenly and lunged toward the officer, causing Carew to step back. The Defendant was carrying a palm-sized digital camera which he pointed in Carew's face. Carew held out his badge and identified himself verbally as Bylaw Enforcement and offered his card to the Defendant. Carew comported himself in a calm and professional manner when dealing with the Defendant. The Defendant responded by stating, "I don't want your fucking card. Get the fuck off my property." As the officer turned with the intention of continuing his inspection, the Defendant snatched Carew's business card from his hand while stating, "Give me the fucking card". The Defendant was in Carew's personal space so he told the Defendant not to touch him and warned him of assaulting a peace officer.

[9] Carew recalled the Defendant pushed his chest with his left hand, causing Carew to move two to three feet back into some debris. He said he told the Defendant that he was a peace officer and not to assault him, but this is not any of the two videos filed as evidence. Given the clutter, Carew was concerned about being injured from the shove. Carew reached to try to push the Defendant away and to try to steady himself. At that moment, the Defendant struck Carew between the eyes with the camera, causing the officer's head to snap back. Carew was dazed and his vision was momentarily blurred. He knew now that he was in a fight and dropped his badge. Carew disagreed with the suggestion that he hip or butt checked the Defendant at any time. With both hands free Carew grabbed the front of the Defendant's shirt to hold on to him and to prevent him the Defendant from pushing him further. After Carew grabbed the Defendant, they both went to the ground with Carew on top of the Defendant. Carew did not agree that he deliberately put the Defendant to the ground.

[10] As they fell, Carew tried to hold up the Defendant to prevent him from falling hard. Carew disagreed with the suggestion that he was hit by the camera for the first time as they fell. Once on the ground, the Defendant was on his back throwing punches at Carew's head while the Defendant still held the camera. The Defendant also tried to kick Carew in the groin. Carew had one knee to the side of the Defendant and his other knee between the Defendant's legs. Carew was kneeling and continuing to hold onto the Defendant. Carew recalled the attack lasted two to three minutes before the Defendant ran out of steam.

[11] When the Defendant stopped, Carew grabbed his badge, stood up, and backed away. He had blood dripping from the bridge of his nose. As the Defendant stood up, Carew told him he was going to call the police. The Defendant responded by saying, "Get the fuck off my property. You assaulted me!" Carew went to the driveway and called 911, and thereafter called his supervisor to describe what happened. When the police arrived Carew provided a statement to them. The attack left Carew with swelling to his face for more than a week as well as a permanent scar. He thought the police would photograph his injuries but they never did.

2.1.3: Matthew Lee

[12] Matthew Lee ("Lee") is a constable with the Peel Regional Police. On April 19, 2011 he responded to a 911 call and went to the Defendant's house at 12:28 p.m. Another officer, P.C. Sidhu ("Sidhu"), arrived earlier in a separate police car. On his arrival, P.C. Lee saw Carew who had blood dripping between his eyes from a cut on his forehead. The complainant was upset and told the officer what happened. P.C. Lee felt he had grounds to arrest the Defendant for assault. The officer did not photograph any of Carew's injuries because he did not have a camera with him.

[13] After speaking with Carew, Lee and Sidhu went to the Defendant's driveway. They saw the Defendant approach them from the side of the house. The Defendant was holding a small camera. When speaking to the Defendant, Lee noticed that he was verbally aggressive with the police. Lee noted that the Defendant appeared uninjured.

[14] Lee arrested the Defendant for assault, who struggled briefly before being handcuffed. Lee denied that the police put the Defendant to the ground at any time.

[15] Sidhu searched the Defendant at the rear of one of the police cars. Lee recalled seeing an audio recorder on the trunk. Lee did not seize the recorder because he did not have any reason to believe it contained anything relevant on it. Lee did not return the recorder directly to the Defendant due to safety concerns but left it on top of some material that was on the driveway. For some unknown reason Lee did not tell the Defendant where he put his audio recorder. Some time later Lee got a call from the Defendant wanting the return of his recorder; the officer told him where he had left it. Lee denied destroying or intentionally misplacing the recorder. He testified that the only thing he would have done differently in this investigation was to put the recorder into someone's hand instead of leaving it on the driveway.

[16] After the arrest and search, Lee conducted investigative inquiries about the Defendant. He learned that the Defendant is known to bait the police and record his interactions with them. Lee thought that perhaps the Defendant had recorded his encounter with Carew using his camera but failed to consider the audio recorder because Carew had mentioned only the camera.

[17] As part of the arrest process, Lee seized the Defendant's camera. A few days later, Lee seized the memory card from the camera and copied the images and videos taken by the Defendant during the confrontation with Carew.

2.1.4: Sandeep Sidhu

[18] Sandeep Sidhu is a police officer with the Peel Regional Police Service. On April 19, 2011 he was dispatched to the Defendant's home in response to a 911 call, arriving there at 12:22 p.m. He met Carew, who had a fresh cut on his forehead. Carew then told Sidhu what happened, including that the Defendant hit him in the face with a camera. Based on the complaint and the cut to Carew's forehead, Sidhu believed he had grounds to arrest the Defendant.

[19] When P.C. Lee arrived the two officers went to the Defendant's house. He saw the Defendant coming from his backyard holding a camera. It looked as if the Defendant was photographing the officers. Seeing the camera confirmed the complainant's story and reinforced Sidhu's grounds to arrest. The Defendant was angry and called the officers "blackshirts." The Defendant was then arrested. Sidhu disagreed with the suggestions that the police put the Defendant to the ground or had used inappropriate force with him.

[20] The Defendant was taken to the police cars where Sidhu searched him for weapons, placing whatever he found on the trunk. The Defendant scoffed when Sidhu told him that he used his camera as a weapon. Sidhu did not recall finding anything in particular and did not recall the audio recorder. Sidhu disagreed with the suggestion that either officer discarded any of the Defendant's property on the side of the road, but did say that he could not recall what the police did with any property not seized. Sidhu was shown and agreed with a Peel Police Directive that requires all officers to safeguard property and to protect the integrity of a crime scene and to safeguard any potential evidence.

[21] Sidhu then transported the Defendant to the police station where he was released a short time later.

[22] Sidhu denied reading or being aware of any police reports regarding the Defendant at the scene as there was no reason to do so. He did not know if P.C. Lee read any such reports. P.C. Lee did not inform Sidhu of anything about the Defendant disliking the police or baiting them. Prior to attending the scene Sidhu had never heard of the Defendant nor Terry Carew.

2.2: Defence Evidence

2.2.1: Donald Barber

[23] At the time of this occurrence Donald Barber ("the Defendant") resided at his father's house in Mississauga. On April 19, 2011 he was asleep when he was awoken by what he thought was his cats. He did not hear knocking on any door. He got up to use the washroom and looked outside where he saw a burly, large skinhead walking around his backyard taking pictures. In cross-examination the Defendant said he described Carew as a skinhead not be insulting, but he looked aggressive.

[24] The Defendant went to the rear door, opened it then banged on the storm door to get the man's attention. He then went back inside where he retrieved his camera and audio recorder, turned them on and went outside to confront the person. He put the audio recorder in his trouser pocket and held the camera in his right hand. The Defendant said he behaved this way to "contact and communicate" before deciding whether or not to call the police. When asked in cross-examination why he felt the need to confront Carew, the Defendant explained that he had no intention of being aggressive, but did intend to be assertive of his family rights and property interests.

[25] The Defendant always records his dealings with the police for his own protection by creating a reliable record of what is said or done and to document misconduct by the police. He does not trust persons in authority.

[26] When the Defendant came out, the man was right there. He held out "a badge or some such thing" and identified himself verbally as Mississauga Enforcement. The Defendant agreed Carew immediately identified himself with a badge and a business card, too. The Defendant testified that Carew was not professional in his conduct in part because he had not identified himself as a Bylaw Enforcement Officer, but agreed that Carew was not aggressive or abusive when he approached the Defendant and identified himself.

[27] The Defendant told Carew to get the fuck off his property, making it clear he was to leave. When he told Carew to leave, the Defendant was using direct language and not yelling. The Defendant agreed that when told to leave Carew appeared to comply with his demand and turned as if to leave right away.

[28] The Defendant testified that he gave Carew an opportunity to explain, but then agreed that the video he made contradicted this assertion. The Defendant testified that his preference was that Carew leave the property and then they could discuss things on the curbside. However, he agreed nothing like this was said to Carew.

[29] The Defendant had a bad experience in 2006 when Mississauga bylaw officers made what he called a bogus claim against him and his father. The Defendant figured Carew's attendance was also bogus.

[30] Carew offered the Defendant his card, but the Defendant refused. When Carew said "OK" and started to turn the Defendant figured he was leaving. The Defendant was satisfied that Carew appeared to be going to a more neutral place. Out what he described as a false sense of security, the Defendant took Carew's card, having been disarmed somewhat by the officer's apparent compliance with the demand to leave. He agreed that he did not wait for Carew to give it to him and that in doing so he may have misjudged the situation by acting a little too quickly.

[31] The Defendant reached out for the card in a cramped space. When he did so, the Defendant accidentally made contact with Carew's arm. The Defendant said "excuse me" but Carew "grandly over reacted" by grabbing the Defendant without a word and throwing him to the ground like a rag doll. This action not only caught the Defendant off guard but caused some property to be upended and the Defendant to strike his head on the ground. The Defendant could not break his fall because he had Carew's card in one hand and his own camera in the other.

[32] He and Carew did not fall together; Carew was entirely the one in control and did not fall at all. In cross-examination, the Defendant agreed Carew helped prevent his head from hitting harder than it did but said that this was part of Carew assaulting him, not restraining him.

[33] Later in his evidence-in-chief the Defendant stated that Carew sucker punched him as he reached for the officer's card.

[34] In cross-examination the Defendant agreed that when the camera goes out of control at the end of the first video, Carew's back is to the Defendant. The Defendant said this is when Carew hip checked him, turned around and tossed him to the ground. He added that as an ex-policeman Carew's instincts would kick in. The Defendant also said that Carew must have known that he was profiled as aggressive which would obviously lead Carew to over react to the situation. He also testified that Carew would know how to "fit it out" to make it look like the Defendant was the guilty one when it was really Carew.

[35] The Defendant did not use his camera as a weapon or throw any punches while holding it. He used the camera all the time and valued it too much to risk damaging it. He did not kick at Carew because if he had kicked him, he would have left marks. The Defendant never tried to defend himself and never offered any resistance. If Carew was struck by the camera or anything else, it was accidental.

[36] The Defendant was never aggressive with Carew at any stage. He testified that any profanity he used was to demonstrate his assertiveness to be the dominant person as the property owner's son. The Defendant testified that in twenty years' experience with bureaucrats he has had to be assertive and added that there is no better place to stand one's ground than on one's own property.

[37] The Defendant said he was never angry in his dealing with Carew.

[38] The whole episode lasted seconds, not minutes as Carew described. When Carew went to leave the Defendant did not see any injuries to him. On his way out, Carew upset a hand truck as he ran away. The Defendant yelled at Carew to get off his property and further shouted to Carew that he had assaulted the Defendant.

[39] Once Carew was out of sight, the Defendant called his father to come home. The Defendant then photographed the aftermath. When asked why he did not call the police if Carew was the guilty one, the Defendant stated that Carew already told him he was calling the police and in any event he wanted to document the scene and review the facts first. While taking his pictures the Defendant noticed the police at his house. The Defendant said that the police only do what City staff tell them to do. He was arrested and told that he had assaulted Carew with the camera but was flabbergast by the suggestion. P.C. Lee surged forward and threw the Defendant onto some plastic material in the driveway.

[40] When he was arrested the police confiscated his camera and took his audio recorder, which he had placed inside a modified candy tin inside his pant pocket. He asked Lee when he would get these items back. Lee told him the camera would be used as evidence and that he had left the recorder on his property but was vague as to where he put it. He last saw the recorder in Lee's possession. The Defendant agreed he never told Lee that his recorder was on, only that it was operational. A few days later the Defendant found the candy tin on the front lawn, but he never found his audio recorder.

[41] The Defendant said that his audio recorder would have been able to pick up everything that anyone said at all relevant times. The Defendant agreed that he never listened to the recorder prior to the police arriving to ensure that his caught anything, but was reasonably sure it had.

3.0: ISSUES AND ANALYSIS

3.1: Was the Defendant's section 7 Charter Right Breached by the Police by losing his Audio Recorder?

3.1.1: Positions of the Parties

[42] The Defendant submits that the police are responsible for losing his audio recorder after taking it from him when searched after his arrest. He submits that P.C. Lee was aware at the scene that the Defendant is known to record his dealings with police. He submits that P.C. Lee knew or ought to have known that the device was likely to contain potentially material evidence concerning the charge he faces. He submits that the evidence lost was objective and permanent and that the value of the lost evidence is enhanced because it relates directly to a central issue in the case, namely the credibility of the principal witnesses. The Defendant further submits that the police were unacceptably negligent to leave it on his driveway when the police had a duty to be responsible with property they took from him.

[43] The Crown submits that P.C. Lee was careless in his handling of the Defendant's audio recorder. However, the Crown submits that his conduct was not deliberate insofar as P.C. Lee testified that he did not believe the recorder contained relevant evidence. The Crown submits Lee's mindset was reasonable considering the Defendant only told him the device was operational, but did not tell the police it had in fact recorded the events. The Crown contends that P.C. Lee's conduct was not intended to subvert the course of justice or avoid potentially evidence. Lastly, the Crown submits that the missing recorder may, or may not, have disclosed some discrepancies but this falls short of showing serious impairment of the Defendant's ability to make full answer and defence.

3.1.2: Applicable Legal Principles

[44] The basic principles respecting the impact of lost evidence and when a stay of proceedings should be granted were summarized in R. v. F.C.B., 2000 NSCA 35 at ¶ 10 as follows:

(1) The Crown has a duty to disclose all relevant information in its possession;

(2) The Crown's duty to disclose creates a duty to preserve relevant evidence;

(3) There is no absolute right to have originals of evidence produced. If the Crown no longer has the original in its possession, it must explain its absence;

(4) If the Crown's explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached;

(5) In determining whether the explanation given by the Crown is satisfactory, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police or Crown acted reasonably in attempting to preserve it. The more relevant the evidence, the more care should have been taken to preserve it;

(6) If the Crown does not establish that the evidence was not lost through unacceptable negligence, there has been a breach of the Defendant's section 7 Charter right;

(7) In addition to a breach of section 7 of the Charter, a failure to disclose evidence may be found to be an abuse of process if, for example, the conduct leading the loss or destruction of evidence was deliberately for the purpose of defeating the duty to disclose;

(8) Where it is because of a failure to disclose, or an abuse of process, the remedy of a stay of proceedings is to be granted only if the matter is one of those rare cases that meets the criteria set out in O'Connor;

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary cases, there may still be a breach of the Defendant's section 7 Charter right if the loss can be shown to be so prejudicial to his ability to make full answer and defence that it impairs the right to a fair trial. In such a case, a stay may be an appropriate remedy; and

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

[45] When considering whether the loss of, or failure to preserve, the evidence was the result on unacceptable negligence, the court may consider whether or not it was deliberately destroyed or the product of human error; and whether the defect in question was part of a larger systemic problem or situational inadvertence. The court should also consider whether or not the police were indifferent or ignorant of the duty to preserve the fruits of their investigation.

[46] In assessing the prejudice, if any, to the Defendant's right to make full answer and defence it is important to bear in mind that the Defendant is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. Where it is shown that the Defendant is deprived of relevant information this does not mean that his right to make full answer and defence is automatically breached; actual prejudice must be established. Actual prejudice happens when the Defendant is unable to put forward his defence due to the evidence being lost and not simply that the loss of the evidence makes putting forward his position more difficult.

[47] The presence, or absence, of other evidence to support the Defendant's position independent of the lost evidence is a relevant consideration when assessing actual prejudice. The fact that a piece of evidence is missing that might, or might not, affect the defence will not be sufficient to establish that irreparable harm has occurred.

[48] Where a stay of proceedings is being sought on the basis of irreparable prejudice to the integrity of the judicial process, the court may consider the presence or absence of a systemic disregard for the prosecution's obligation to preserve relevant evidence as well as any malevolent motive by the Crown or police.

3.1.3: Analysis

[49] This is not a case of lost evidence. The audio recorder was never in the possession of the police for any evidentiary reason. It was simply a piece of personal property removed from the Defendant during the search following his arrest and divested by the police before they left the scene. The police never considered the recorder to be real or potential evidence. For this reason alone, the Charter application is dismissed.

[50] If I am wrong and the police were in possession of evidence and lost it, I am satisfied with the explanation for the failure of the police to preserve it. P.C. Lee was wrong in the way he treated the recorder after confiscating it by not telling the Defendant exactly where he put it on his property. He admitted that had he the chance to do it over again, he would have tried to give it to a responsible person, and not leave it outside. Despite P.C. Lee's poor judgment, I find that the police were not unacceptably negligent within the Charter context.

[51] There was nothing in the circumstances that should have caused the police to perceive it as evidence at all. The police focussed on the camera not because it might have contained material video footage of the events, but because it was believed to be the instrument by which the alleged offence was committed. Since there was no allegation that the recorder was used to strike Mr. Carew, it was reasonable for the police to ignore it. It was only days later that the police thought to look at the camera's memory card to see if the events had been recorded. At that stage any consideration of perceived relevance of the audio recorder was moot since it was no longer in the possession of the police.

[52] Also, the Defendant did not tell the police at the time that the recorder may have contained evidence of the events; all he said was that it was operational. At trial, the Defendant said that prior to his arrest and dealing with the police he wanted to "review the facts" but he never checked the audio recorder. At the highest, the Defendant's evidence was that he was reasonably certain the recorder was on.

[53] In all of the circumstances, if this is a case of lost evidence the recorder was lost due to human error and not because of any deliberate attempt by the police to avoid or destroy relevant evidence. Even if the audio recorder was relevant evidence lost by the police due to unacceptable negligence, this is not the clearest of cases to justify a stay of proceedings. The Defendant's right to a fair trial was not impaired nor was the integrity of the judicial system irreparably harmed.

[54] The unavailability of the audio recorder did not prevent the Defendant from putting forward a vigorous and full defence. He had the video evidence at his disposal, he was able to cross-examine the prosecution witnesses, and he gave evidence on his own behalf. I find that it is unclear whether or not anything was actually recorded on the device. Even if audio was actually recorded, in the circumstances of this case any audio recording had as much chance of hurting his case as it did helping it given his vitriol displayed on the video. Any audio would be of no assistance in deciding how many, or what kind, of blows were allegedly struck. Assuming the recorder contained relevant evidence, it cannot be said that it was crucial or essential evidence.

[55] Assuming a breach of the Defendant's section 7 Charter right, the integrity of the judicial system is not undermined in these circumstances. While the police owe the Defendant a new audio recorder, their behaviour in handling the recorder showed no ignorance of their disclosure duties, there was no evidence of any systemic disregard for their general duties or the Defendant's rights, and there was no improper motive demonstrated by them. Being lazy in handling the return of the recorder cannot be equated with bad faith by the police. Although P.C. Lee became aware after searching the Defendant that he had a habit of recording his dealings with police, there was no reason for the police in this case to suspect that the Defendant had recorded his dealings with the bylaw officer who was, at best, a very minor authority figure.

[56] For these reasons, the Defendant's lost evidence application is dismissed. Even if there was a breach of his section 7 Charter right, a stay of proceedings would a disproportionate remedy in the circumstances.

3.2: Is the Defendant Guilty of a Crime?

3.2.1: Positions of the Parties

[57] The Defendant submits that the evidence in this case fails to prove that the Defendant is guilty of assaulting the complainant. The Defendant submits that the Defendant's evidence that he was the real victim ought to be believed, or at least raised a reasonable doubt. He further submits that Terry Carew was an unreliable witness and that it would unsafe to base a guilty verdict on his evidence when assessed in light of all the other evidence including the independent nature of the videos and photographs.

[58] The Crown submits that when assessing the evidence as a whole it has proven the Defendant's guilt.

3.2.2: Applicable Legal Principles

[59] The court may believe none, some, or all of a witness's evidence. The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, the court can accord different weight to different parts of the evidence that it has accepted.

[60] The vast majority of assault prosecutions turn on the evidence of the two principals - the complainant and the accused. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged. However, reaching a verdict must not devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the unshifting burden on the Crown of proof beyond a reasonable doubt.

[61] It must be emphasized that mere disbelief of the Accused's evidence does not satisfy the burden of persuasion upon the Crown. In other words, to use disbelief of the Accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes a legal error. The court must not reach its verdict based on merely choosing between the defence and prosecution evidence. Instead, the court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to the Accused's guilt.

[62] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses. In approaching the issue of credibility, the court in not only entitled to compare the evidence of the Accused to the complainant, but it has a positive duty to assess the evidence of the Accused in light of the whole of the evidence, including the testimony of the complainant.

[63] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events.

[64] An outright rejection of the Accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of his evidence as is a rejection based on a problem identified with the way he testified or the substance of his evidence.

[65] The court may reject the evidence of the Accused and convict solely on the basis of accepting the evidence of the complainant provided that the court also gives the evidence of the Accused a fair assessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence.

[66] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established.

[67] Demeanour evidence, while relevant, alone cannot suffice to found a finding of guilt.

[68] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the Accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the court's faith in the complainant's account.

[69] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering his or her credibility, otherwise it could have the effect of reversing the onus of proof.

[70] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered. The court must remain vigilant to the fact that the burdens of production and persuasion rests upon the prosecution and that the Accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie is relevant to the Accused as witness.

3.2.3: Analysis

[71] I did not believe the Defendant nor did his evidence raise a reasonable doubt. I found him to be an unreliable and incredible witness for several reasons. While testifying the Defendant often was evasive, choosing to go off on tangents or be critical of others rather than providing direct answers. He often dissembled, a clear example being his claim of being assertive, not aggressive. His entire demeanour throughout his dealings with Carew and the police was contemptuous and belligerent.

[72] The Defendant's quibbling about Carew's professionalism being suspect because he said he was "bylaw enforcement" instead of "bylaw enforcement officer" reveals an attitude of condescension consistent with his aggression demonstrated by the whole of the evidence. I did not believe his evidence that his intention was not confront Carew but to simply have contact and communication and a mature discussion. This evidence is profoundly contradicted by the totality of the evidence that showed the Defendant's intention was anything but peaceful. It was obvious to me that he never intended to discuss anything with Carew, but instead intended to intimidate and dominate him by any and all means.

[73] The credibility of the Defendant was further eroded by two significant internal inconsistencies. First, in examination-in-chief the Defendant said several times that he was tossed like a rag doll by Carew but then declared that Carew had in fact sucker punched him in the face when he reached for the complainant's business card. Not only is this inherently inconsistent, it is inconsistent with the evidence of the police that the Defendant appeared uninjured. Second, the Defendant described Carew as over reacting and attacking him, but then agreed that Carew in fact helped the Defendant by preventing injury to his head as he went to the ground. These internal contradictions reveal a wide gulf in the Defendant's perception and memory of the events that made me leery of the rest of his narrative of what happened.

[74] With respect to Terry Carew, I found him to be a credible and reliable witness. He was honest and direct. Although no video captures his evidence that he told the Defendant he was a peace officer and that the Defendant must not assault him, he certainly made it clear to the Defendant that he was an official present for official business. The fact that he thought the events lasted two to three minutes, instead of seconds as they probably did, does not negatively impact on his reliability because many people often recall unpleasant events taking longer than they actually did. I find that any internal inconsistencies in Carew's evidence were minor and were inconsequential to his credibility. In all other respects, I found Carew's evidence consistent both internally and when assessed together with other reliable evidence.

[75] I found Mr. Carew's credibility was bolstered by other evidence including the 911 tape which was materially consistent with his trial evidence. Carew's evidence that the Accused was the aggressor is confirmed not only by the video, but also the Defendant's own evidence that he used profanity, and by the police officers who each independently described the Defendant as aggressive.

[76] I find that throughout his dealings with the Defendant, Carew was calm and professional. It is clear to me that when confronted by the Defendant, he behaved in a professional and controlled fashion at all times, even when being attacked. I believe that his demeanour as a witness mirrored his conduct during the time of this incident.

[77] I believe the complainant on all material facts and where his evidence conflicts with that of the Defendant, I prefer Carew's.

[78] Upon consideration of the whole of the evidence that I believe, it is clear to me that what really happened in this case is that the Defendant was severely perturbed by the unexpected presence of Carew, who was lawfully there in response to a complaint about the poor state of the property. The photos of the property amply justify the complaint which Carew was tasked to investigate. The Defendant was manifestly and immediately antagonistic with Carew, taking no time to be civil and making no effort to find out what was going on. The Defendant remained bellicose with Carew throughout this matter.

[79] Carew began to comply with the Defendant's demand that he leave by turning away from the Defendant. This action speaks volumes about Carew's peaceable conduct. The Defendant, not content to leave the matter there, interfered by moving forward to snatch the business card Carew had offered earlier. Carew did not hip or butt check the Defendant has he claimed as the video reveals no such move. Carew either turned of his own volition or was turned by the Defendant. Carew appropriately perceived the Defendant's actions of going for the card as hostile and aggressive.

[80] I believe that as Carew turned, or was turned, to face the Defendant, the Defendant deliberately punched him in the face while holding his camera. This accounts for why the video stopped shortly after Carew had turned around. I find that after being struck in the face, Carew responded in a measured and controlled fashion by putting the Defendant to the ground, taking care that the Defendant did not strike his head on the ground. I believe that the Defendant was both angry and humiliated by being put down. I accept Carew's evidence that while on his back the Defendant continued to lash out at the bylaw officer because of his uninhibited hostility. It matters not how many blows or kicks the Defendant threw while being restrained because even one would be enough continue the assault upon Mr. Carew.

[81] There is no doubt in my mind that Donald Barber intentionally assaulted Terry Carew. The blows were not an accident. Mr. Barber was the aggressor, not the victim as he claimed. Carew suffered a significant injury which has left a scar. That injury was caused by the camera held in the Defendant's hand as he struck Carew's face. It was the Defendant who sucker punched the complainant, not the other way around.

[82] I believe the Defendant that his camera is valuable to him and that he would not normally risk damaging it. However, I nevertheless find that he used it as a weapon in this case because he knowingly held it in his hand while pre-emptively punching the victim. It was reasonably foreseeable to him at the time that the camera would make contact with the victim and likely injure him.

4.0: CONCLUSIONS

[83] After carefully weighing and re-weighing all of the evidence and after considering the able submissions of both counsel, I find the Defendant guilty of the offence of Assault With a Weapon.

Original signed by The Honourable Justice Richard H.K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice