Court File and Parties

Date: February 19, 2015

Court File No.: 12-178496

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jamal Edwards

Before: Justice Paul F. Monahan

Heard on: December 30, 2014 and February 19, 2015

Oral Reasons for Judgment Released on: February 19, 2015

Counsel:

• Ms. H Gluzman for the Crown
• Mr. J. Edwards for himself

MONAHAN J.:

Introduction and Overview

[1] Mr. Jamal Edwards is charged with assault causing bodily harm on his former girlfriend, Santasia a.k.a. Sandra Nelson, contrary to s. 267(b) of the Criminal Code (the "Code") relating to events alleged to have taken place on June 3, 2012.

[2] The principal evidence against Mr. Edwards is a 911 tape in which Ms. Nelson alleges that Mr. Edwards came to her house and beat her up. For oral reasons given on February 19, 2015, I admitted the evidence of the 911 tape pursuant to the principled exception to the hearsay rule based on necessity and reliability. I made it clear at the time of admitting the 911 tape that while I was admitting the tape, I was only finding that it met the threshold requirements for reliability but was making no judgment as to whether or not it was proof beyond reasonable doubt of the alleged offence.

[3] On the 911 call, Ms. Nelson indicates that Mr. Edwards punched her in the mouth and "punch my tooth outta my mouth". She said that he choked her as well. About halfway through the call she indicates to the operator that she no longer needs any help and she is going to go to her mother's place and that the police should not come.

[4] When she was called to testify at trial she indicated that she was 25 years old and had two children. She indicated that she did not recognize the voice on the 911 tape as her own and she recalled nothing about the incident. When she was asked where she was living at the time of the incident she said she did not remember although she indicated it was in Canada. It is fair to say that she was entirely uncooperative in her testimony.

[5] Constable Harloff testified that she was on duty on June 3, 2012 and was called to a residence and was told that the complainant was Sandra Nelson. She met with Ms. Nelson at that time. She identified Ms. Nelson as having been at court that day although it was not a direct identification made in the courtroom. Ms. Nelson was not cooperative with Constable Harloff on June 3, 2012.

[6] Constable Harloff testified that Ms. Nelson appeared to be concealing her injuries. She had a broken front tooth and her dress was torn. She refused to provide her boyfriend's name to Constable Harloff. Constable Harloff did not see any other injuries although this may have been due to the fact that Ms. Nelson was trying to conceal her injuries.

[7] Constable Robb also testified and her evidence was similar to Constable Harloff. She attended with Constable Harloff at the residence. She too observed the broken tooth, the torn dress and the attempts by Ms. Nelson to apparently conceal her injuries. She testified that she thought she recalled a swollen lip but she readily and fairly acknowledged that she did not have a note of this which I took to mean that she was not entirely sure of the point.

[8] Like any criminal case, the Crown has the obligation to prove the case beyond a reasonable doubt. In this case, the Crown has difficulties because the complainant has been entirely uncooperative. While I have admitted the 911 tape as evidence, I am not satisfied that the case has been proven beyond a reasonable doubt for the following reasons:

(i) While the 911 tape is admissible, it is not a sworn statement and Ms. Nelson refused to adopt it. Therefore, it made cross-examination of her difficult because she did not acknowledge the statement. On the other hand, one could argue that a fair point to be made in cross-examination and even without cross-examination but in argument was that it was obviously her voice on tape and she was not being truthful with the court when she said that she didn't recognize her voice. The Crown acknowledges that Ms. Nelson was an untruthful person in the sense that she began to immediately distance herself on the 911 tape from her original allegations (in the sense that she indicated that she no longer needed police) and she was entirely uncooperative in her testimony. The fact that Ms. Nelson is fairly acknowledged as an untruthful person by Crown makes it difficult to prove the case beyond a reasonable doubt. I do note my earlier comments regarding cross-examination are really merely observations as there was no cross-examination of Ms. Nelson. Nevertheless, they support the argument and the observation that there were issues about her credibility.

(ii) In addition, on the tape itself it is clear that Ms. Nelson became uncooperative with the 911 operator and later with the police. One explanation for this would be that she simply wished to have nothing to do with the police. Another explanation is that the accusation she made against Mr. Edwards was not accurate or truthful and she did not wish to persist in it. Ms. Nelson was so uncooperative with police and the Court that it is difficult to find the case has been proven beyond a reasonable doubt.

(iii) Mr. Edwards makes the argument that if someone punched Ms. Nelson in the mouth such that her tooth was broken one would have expected that she would suffer other visible injuries. This may be explained by Ms. Nelson being uncooperative but it also provides some evidence which conflicts with the Crown's case.

[9] I strongly suspect that Mr. Edwards did assault Ms. Nelson but this is a criminal court which does not operate on the basis of suspicions. The Crown must prove its case beyond a reasonable doubt. This is a very high standard. The Supreme Court of Canada has stated that:

"Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt." (see R v. Lifchus, [1997] 3 S.C.R. 320 at para. 39)

[10] The mere playing of the 911 tape in the circumstances of this case, coupled with the observations of the police officers who attended at Ms. Nelson's home, simply does not take the case beyond a reasonable doubt. There is a reasonable doubt and it flows from the unsworn nature of the 911 statement; the almost immediate attempt by Ms. Nelson to distance herself from the first part of the 911 statement; the unwillingness of Ms. Nelson to adopt the 911 statement in court and the limited observations of the physical injuries which provide some conflicting support for the defence's position.

[11] The court recognizes the importance of the pursuit of domestic violence allegations and commends those involved in pursuing justice for victims of domestic violence. However, at the end of the day this court cannot make a finding of guilt which may in turn impact upon the liberty of the accused. It can only do so by applying the beyond a reasonable doubt standard.

Conclusion

[12] In conclusion, I find that the case for assault causing bodily harm has not been proven beyond a reasonable doubt against Mr. Edwards and there will be an acquittal.

Released: February 19, 2015

Justice Paul F. Monahan