Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty the Queen

And: David Clarke

Before: Melvyn Green, J.

Counsel:

• J. Lofft for the Crown
• M. Wyszomierska for the Defendant

Heard: June 8-9 and July 13, 2015

Reasons for Judgement

A. INTRODUCTION

[1] David Clarke, the defendant, had recently fathered a child with the nominal complainant, Nana Kubi. They began to argue while driving from Ajax to Toronto. The argument continued in a third-floor apartment unit where, says the defendant, Kubi pushed and hit him and he endeavoured to restrain her from further assaulting him. He denied striking Kubi. Three persons on the roof of a building across the street observed parts of this dispute through an apartment window. Each testified to seeing a man, undoubtedly the defendant, repeatedly strike a woman, undoubtedly Nana Kubi. One of the rooftop witnesses dialed 911. The police attended, arrested the defendant and charged him with assault. Nana Kubi was called as a further Crown witness. She denied being hit by the defendant. Several attending police officers also testified, although their evidence adds little to the factual scenario necessary for disposition of the critical issues.

[2] Like many similar prosecutions, this case turns on resolving the testimonial conflict between, on one hand, most of the Crown witnesses and, on the other, the defendant and (somewhat more unusually) the person he is alleged to have assaulted. The legally proper resolution of this dispute is informed by the presumption of innocence that protects all accused persons. This presumption is only overborne if the Crown meets its burden to establish the essential elements of the offence charged to a standard of proof beyond reasonable doubt. Failing that, an acquittal must follow.

B. EVIDENCE

(a) Introduction

[3] The physical location of the two buildings, the layout of the apartment, the positioning of the windows and the sightlines afforded those across the street are all matters of importance to appreciating the events at issue and the reliability of the three Crown witnesses' observations. These are also not matters of serious dispute. I begin with a description of these considerations.

[4] A canvass of the "insiders"' evidence then follows – that is, the generally exculpatory (if not entirely consistent) evidence of the defendant and Nana Kubi, who were inside the apartment during the alleged altercation. I first summarize a number of common elements, and then provide synopses of their individual accounts of their dispute.

[5] A summary of the evidence of each of the three witnesses who observed the events from across the street and a brief recital of the material police testimony completes this evidentiary review.

(b) The Physical Setting

[6] The events at issue took place in a two-bedroom apartment on the third floor of a low-rise building at the northwest corner of Bathurst and London Streets in central Toronto. A vegetarian restaurant occupies the ground floor. Two windows, far taller than they are wide, look south from the apartment over the one-way street below. There are no curtains or shades on the windows. No trees or external structures obstruct the view from the outside. From across the street one cannot determine the number or nature of the rooms inside the apartment or whether the windows occupy the same or different rooms.

[7] Two of the three rooftop witnesses, Victoria Joseph and Arran Svadjan, shared a third floor apartment in the building on the south side of London, directly across the street from and at the same elevation as the apartment occupied by the defendant and Kubi. They and a mutual friend, Madeleine ("Mattie") Harding-MacDonald, were hanging out on a makeshift patio on the flat roof of their building, one floor above the shared apartment and accessible only from that apartment. Some road-level noise first drew their collective attention to events across the street and, ultimately, the altercation they all claim to have witnessed through the unobscured windows of the well-lit apartment occupied by the defendant and Kubi. At some point all three descended to Victoria and Arran's apartment from where they monitored the events in the apartment across the street while peering through the kitchen blinds.

[8] The evening of June 28, 2014 was, on all accounts, warm and clear.

(c) The Insiders' Accounts

(i) The Common Elements

[9] Nana Kubi and the defendant had been on-and-off-again girlfriend and boyfriend since highschool, for about ten years. In June 2014 they were, as the defendant put it, no longer "an item". They did, however, have a child in common, a then seven-month old son named Elijah. On June 28th they drove to a family barbecue in Ajax in Kubi's Jeep. Neither consumed any alcohol or drugs that day.

[10] The post-dinner plan was to drop off the defendant's parents and then hang for a few hours at an apartment belonging to a friend of the defendant's and to which he had access while it was being renovated. Things did not go well on the way home. There was a disagreement as to which exit ramp they should take, culminating in the defendant using language and a tone of voice that even he, in retrospect, realized disrespected Kubi. Further, this occurred while his parents were still in the car. And then a woman called the defendant on his cell and he refused to either answer the phone or tell Kubi who was calling. She pursued the identity of the caller and the defendant continued to rebuff her inquiries. It would only "have made matters worse", he explained at trial, to answer Kubi's questions. While Kubi understood that they were not "a couple", she, at least then, still "wanted to be".

[11] Kubi grew increasingly irritated with the defendant. She was both hurt and full-blown angry by the time they parked on Bathurst around 9 or 10pm. The defendant no longer wanted her to come up to the apartment but Kubi needed to change the baby. Telling her to chill and "stop overreacting" was clearly not mollifying what the defendant described as Kubi's "sour mood". On Kubi's account, she was yelling at the defendant as they got out of the car. The defendant, however, concedes that he too raised his voice. Eventually he relented and allowed Kubi to visit the apartment.

(ii) The Events in the Apartment: The Defendant's Account

[12] According to the defendant, Kubi was right back on the caller's identity once she changed Elijah on the living room couch: "Who's calling?" "I can't believe you have another girl calling you." The defendant kept trying to brush it off but eventually allowed that, "Yes, it was a girl". Kubi grew even angrier: "I knew it. I can't believe you". I knew it". The defendant's efforts to calm her down were ineffective. "It was supposed to be me and you", she protested. He parried with: "You know what it is. C'mon stop it". Kubi got up from the couch, hit him on the chest and pushed him back while repeatedly yelling, "I hate you". Fearing she would strike him again, the defendant stepped forward, put his arms around her and set her down on the couch. "Relax", he kept saying, "just relax". He stepped away as they yelled "smart-ass" insults at each other. Kubi came after him again, and this time he restrained her against the wall near the kitchen. Eventually, she grew limp in resignation and returned to the couch. "I can't believe this", she said. "I had your son". It was the first time Kubi actually learned the defendant was seeing another woman.

[13] They argued and exchanged insults for another 10 to 15 minutes. Kubi finally said she was leaving. The defendant heard a knock on the window as she gathered her belongings. A police officer was on the fire escape by the window asking him to come down. The police met Kubi and the defendant as they descended the stairs. The defendant was soon under arrest.

[14] The defendant denied ever hitting or slapping Kubi on June 28th or, as framed by the question, causing her to "fly through the air". He said he wanted to be present in his son's life and help support him, but he couldn't financially provide for Elijah at that time. The defendant has a record for weapons offences and failing to comply with court orders.

(iii) The Events in the Apartment: Nana Kubi's Account

[15] Nana Kubi's recall of the events in the apartment largely parallels the defendant's. She changed Elijah's diaper on the couch and gave him some toys. He was still too young to sit up by himself and she did not prop him up.

[16] Kubi then returned to her earlier agenda, "press[ing] this situation of this girl calling" the defendant's cell. He tried to laugh it off, but she persisted: "I just had a baby for you and now another girl is calling your phone. I was hoping we could be a family". The defendant "didn't really care" about Kubi's sentiments. Kubi said both raised their voices, but unlike the defendant she "was pretty much loud all the time".

[17] The defendant finally copped to there being another woman: "You know what it is", he said. Kubi was deeply hurt: "How can you do this!" He said he was going to leave to see his new girlfriend. She responded by pushing the defendant in his chest a few – "say three" – times. The defendant stumbled back. He then bear-hugged her around the waist to prevent her from further pushing him. She could remember only one occasion when the defendant restrained her in this manner, but it was an emotionally charged evening and she allowed the "possibility" that it happened more than once. All of their physical exchanges took place in the living room.

[18] These pushes were the only times Kubi touched the defendant that evening. Other than the bear-hugging, the defendant never touched her. She was not holding her son during any of their physical exchanges. In direct examination, Kubi testified the argument continued for another one to two hours, ending only when she finally said she was leaving. In cross-examination she said the police appeared about 30 minutes after she first pushed the defendant.

[19] Kubi suspected the defendant had other sexual involvements. Her suspicions were first confirmed that evening. She had wanted to be in a monogamous relationship with the defendant and felt angry, hurt and betrayed by his infidelity. Kubi repeatedly denied ever hitting or slapping the defendant, but she ultimately accepted defence counsel's suggestion that it was "possible" she did strike him in the midst of her anger and simply could not remember having done so. She repeatedly denied that the defendant's hands ever connected with her face or head: "I know he did not hit me in my face".

[20] Kubi told the police that an apparent bruise on her forehead was a blemish related to having recently had a baby. She also described the apartment as "scorching hot" that evening when explaining her profuse sweating to the police.

[21] Kubi was dating others at the time of trial. She was no longer in a relationship with the defendant.

(d) The Rooftop Witnesses' Accounts

(i) Introduction

[22] There were three persons on the rooftop across the street: all employed young adults without criminal antecedents who were watching fireworks on a Canada Day weekend. None of them were intoxicated. Two later discussed their cross-street observations. They were also interviewed by the police within an hour or two of the events at issue and, in some cases, were cross-examined about their prior statements.

(ii) Victoria Joseph's Account

[23] Victoria Joseph was on the rooftop patio on the southwest side of Bathurst and London when she heard the sound of an SUV pulling up across the street and, then, the sound of yelling and a baby crying. It was around 11 or 11:30pm. Victoria had just returned from work. She does not drink alcohol. Her boyfriend, Arran Svadjan, and good friend "Mattie" Harding-MacDonald were having a beer. None of them were using drugs. Victoria was standing when she first heard the yelling. She turned off the music at that point.

[24] Later Victoria heard a couple yelling at each other inside the third floor apartment across the street. Both raised their voices but the woman "barely yelled". Victoria could not make out any of the words. She was looking through the apartment window, an opening that only allowed a limited view of the apartment interior, and sometimes the man and woman were outside of her line of sight.

[25] Victoria could see a man pacing and a woman in a sitting position while holding a small child. Although not positive about the sequence, she observed the man:

• Come right up to and yell into the woman's face;
• Slap the woman on her face while she held the baby;
• Push the woman over a couch when she tried to get up; and
• Repeatedly slap the then standing woman's face while standing behind her and while the woman tried to protect herself.

In total, Victoria estimates she witnessed the man slap the woman more than 15 times over the course of about 45 minutes.

[26] Victoria left the roof and returned to her apartment, losing sight of the fracas for the minute or two it took her to get down the stairs. She then resumed watching through her apartment window. She was very upset by the events across the street and dialed 911 to report their occurrence. The police arrived within 10 to 15 minutes of her call, maybe less. She was a couple of rooms distant from her friend Mattie and boyfriend Arran when the police interviewed her in her apartment.

(iii) Mattie Harding-MacDonald's Account

[27] Mattie was watching fireworks on the roof with Arran when Victoria joined them. She heard a baby crying. About five to ten minutes later she heard a commotion coming from the apartment across the street. She stood up and looked through the windows of that apartment. A man and a woman were engaged in a heated argument. The woman appeared to be on a bed and a baby was in a chair or, at times, being comforted by the woman. The man grabbed the woman by her hair, shook her and pushed her on the bed. The woman's hands were in front of her face in a defensive position. Both had their voices raised, but the man's tone was much more aggressive. She could not make out their words. She could see clearly, she says, through the two windows into what she took to be two rooms.

[28] The man slapped the woman in the face. He left and then returned to Mattie's field of vision, slapping the woman again. This pattern was repeated some three or four times, with escalating "physicality". The woman was struck some eight to ten times in total over the course of these events. The police interviewed Mattie in her friend Victoria's apartment immediately after they arrested the man. She was asked how many times she saw the man hit the woman. Her answer, as recorded by an officer, was "at least five good hits". Asked if they were punches or slaps, she advised the officer that, "it was more like a slap to the face; maybe one good punch". She adopted "the truth" of these answers to the police questions, noting that she had "purposely said 'at least'" when quantifying the number of blows inflicted on the woman. Mattie never saw the woman standing.

[29] Mattie and her friends came down to their apartment to call the police. The descent from the roof took about 30 seconds. Victoria's call to the police took another 30 seconds. All three continued to watch the events across the street through the horizontal blinds covering Victoria and Arran's kitchen window. Mattie testified that the blinds did not interfere with her ability to see inside the cross-street apartment. The lights were off in Victoria and Arran's kitchen and turned on across the street. She found the events "shocking".

(iv) Arran Svadjan's Account

[30] Arran was on the rooftop patio with Victoria and Mattie. He heard shouting and then saw a man (who he recognized in court as the defendant) through the windows of the apartment across the street. The man was pacing and shouting, and then "it got physical". A woman stood up and disappeared from view. She then reappeared, "flying back" onto a couch. He decided the police should be alerted and packed up the roof patio to take everything down to his apartment. This exercise took several trips. Once downstairs he saw the man hit the woman in the face a few times while she was holding a child. He also observed some pushing and shoving. It was Victoria who called the police, "about five minutes", he said, after he first heard the sound of shouting.

[31] The first police officers arrived within ten minutes of the call. They interviewed Arran alone in the living room of his apartment about an hour later. His statement says nothing about seeing the man hit a woman or of making observations from inside his apartment, but Arran insisted he had done both. "Of course", he says, there were occasions when he and Victoria (but not Mattie) talked about the incident, especially soon after its occurrence. He does not wear glasses or contacts and had only one beer on June 28, 2014.

(v) The Material Police Evidence

[32] The first police arrived around 11:50pm. Others soon followed. They completed the on-scene investigation, the arrest of the defendant and interviews with all the rooftop witnesses by about 1:20am. One officer described Nana Kubi's forehead as appearing to be a "little swollen", although there were no markings or bruises. A second, on examining her face with a flashlight, located one or two bumps on her forehead, but they were not red. Both officers described her as sweating profusely. She refused to come to the station.

[33] As did the rooftop witnesses, several officers testified to the defendant "bolting" when advised he was to be arrested. He was quickly apprehended. The circumstances surrounding this incident are such that the Crown does not invite the drawing of any inferences prejudicial to the defendant as a result of his conduct on the street. This is a fair approach, and in my view a legally correct one.

C. ANALYSIS

(a) Introduction

[34] There is a profound evidentiary divide between the positions of the Crown and defence. The latter, grounded in the testimony of the defendant and Kubi, paints a picture of a heated verbal argument that culminates in Kubi several times pushing the defendant and he doing no more in response than restraining her from continuing to assault him. On the other hand, each of the three rooftop witnesses report seeing the defendant repeatedly hit or slap Kubi about her head while she did no more than raise her hands to try and protect herself from these blows.

[35] On their face, these two very different, indeed directly contradictory, accounts cannot be reconciled. The defence argues that the defendant's and Kubi's testimony leaves room for reasonable doubt, particularly when filtered through an appreciation of the context of the parties' history and their underlying argument. I am not unsympathetic to the importance of contextual analysis, but I think it equally important in the particular circumstances of this case to first resolve, to the appropriate standard, the factual dilemma posed by the opposing narratives. In my view, and for reasons I soon outline, "context" is of small moment in this initial assessment. Its explicatory value arises only if the core factual question is determined in favour of the Crown and the inquiry then turns to the ancillary question of whether the defendant's assaultive conduct (if such it was) is justified or excused in law. What is to be avoided is the premature injection of contextual reasoning and, thus, the risk of conflating these two orders of inquiry.

(b) The Governing Legal Principles

[36] The resolution of he-say/she-say contests, of which the instant case is a variant, constitutes a substantial portion of the work of criminal courts. Although subject to continual refinement, the rules governing their adjudication are long settled. R. v. W.(D.), 63 C.C.C. (3d) 397 remains the seminal decision, a case, as described by the Supreme Court in R. v. J.H.S., 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 9, that, "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". I recently had occasion to set out the general principles that govern this exercise: see R. v. Santos-Medeiros, 2015 ONCJ 396, at paras. 62-65. With some modest revisions and stripped of reference to most of the authorities there cited, I here simply repeat the relevant passages.

[37] An evaluation of the credibility of the witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct facets or dimensions of creditworthiness – honesty and reliability. The former, "honesty", speaks to the truthfulness, sincerity and candour of a witness' evidence while the latter relates more to factors such as perception, memory and communication. Both considerations impact on the trustworthiness – the accuracy and believability – of a witness' account.

[38] It matters not that the account of an incriminatory witness is preferred or found more probable than that advanced by an accused. The controlling standard is that of proof beyond reasonable doubt. Wherever and however grounded, a failure to clear this threshold necessarily translates into acquittal. As said by the Court of Appeal in R. v. Challice, 45 C.C.C. (2d) 546, at 557 (and subsequently adopted, and underscored, by the Supreme Court as a correct statement of the law in R. v. Morin, [1988] 2 S.C.R. 345, at para. 28):

[I]t is not necessary for [the trier] to believe the defence evidence on a vital issue – but it is sufficient if it, viewed in the context of all the evidence, leaves [the trier] in a state of reasonable doubt as to the accused's guilt.

R. v. W.(D.) and its progeny make clear that so long as there remains a basis for reasonable doubt respecting the veracity of an incriminatory account the same rule applies even if a defendant's evidence is entirely rejected or even if he or she elects not to testify.

[39] A judge presiding, as here, at a judge-alone trial must, like every trier of fact, consider all of the evidence bearing on a witness' credibility. He or she may, with reason, accept none, some or all of the evidence of any witness and accord different weight to different parts of the evidence that he or she does accept. Where, as here, a defendant does testify, his evidence – like that of any witness – must be assessed in the context of all other evidence and not in isolation.

[40] A foundation for reasonable doubt may be found in the evidence of any witness or combination of witnesses. So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, sufficiently credible and persuasive to meet the requisite standard for such verdict. Finally, acceptance of an inculpatory accounting may itself be a proper basis for rejecting a defendant's and any defence-supportive testimony.

(c) "Context": Its Meaning and Application

[41] As earlier suggested, there is lively debate between the Crown and defence as to the value of context in assessing the conduct alleged to provide the factual premise for the charge before the court. "Context" is not a term of legal art. As in common usage, the word here refers to the ambient social, cultural, historical or interpersonal conditions or circumstances that help explain or give meaning to human transactions. The defence argues that a reliable interpretation of the events seen through the apartment windows requires an understanding of the context in which they occurred. As put somewhat rhetorically by counsel, "context is everything". The Crown's contrary position is that it is the very absence of any appreciation of context that renders the "rear-window" evidence not only reliable but compelling. In the end, I am persuaded that, in the very particular circumstances of the immediate case, the Crown's view is here the correct one respecting the first stage of the essential analysis: Did the defendant strike Kubi? There is a second, if contingent, critical question: If the defendant did strike Kubi, does their interpersonal dynamic – the "context" – afford him a defence? That inquiry, if reached, involves different considerations, which I now begin to address.

[42] As a tool for assessing the probative value of evidence, context generally speaks to the reliability of a witness' testimony not his or her honesty. Context, in short, may help explain a witness's warped or otherwise inaccurate perception of an event, his or her flawed recall or, commonly, the witness's assignment of significance, meaning or relevance to the behaviour at issue, especially where that conduct is potentially vague or equivocal, removed from the experience of the witness or otherwise subject to a risk of misinterpretation. The difficulty with the defence argument respecting the need for context is that it ultimately depends on an ambiguity that is, here, fundamentally inconsistent with the defence approach to "the facts".

[43] Put differently, the defence position respecting the need for contextual analysis is ultimately predicated on accepting the general accuracy of the rooftop witnesses' evidence and, thereby, the truth of the Crown accusation that the defendant struck Kubi. Context, then, does not rebut the core allegation of assaultive conduct by the defendant but, rather, situates the impugned conduct in a dynamic that allows for the defendant's use of force to be cast as a non-culpable reaction to the physical instigations of the alleged victim, Nana Kubi. As advanced by the defence, an appreciation of context could help explain that the blows observed from across the street do not amount to assaultive conduct by the defendant but, rather, reflect his side of a consensual altercation or are acts of self-defence.

[44] The context that permits this construction of the events, so the argument continues, was unavailable to the rooftop witnesses who knew nothing of the background to the incident they observed or the relationship between the parties. They, rather, viewed only random and isolated frames of a continuous movie. The full context, however, was known to and shared by the two participants and, the defence contends, their evidence of that context leaves reasonable doubt as to whether the rooftop witnesses' observations of acts of physical aggression by the defendant amounted to conduct attracting criminal liability, especially when combined with the defendant's and Kubi's evidence of the latter's assaultive behaviour. In short, the contextual approach urged by the defence goes only to the availability of a defence for the defendant's application of force, not whether the force described by the rooftop witnesses actually occurred.

[45] The challenge for the defence is that the evidence led through Kubi and the defendant lends no viable support for a theory of self-defence or consent. Both consistently deny that the defendant ever struck Kubi. And while the defendant repeatedly testified that he was subject to pushes and likely some blows from Kubi, she goes no further than to concede the possibility she may have struck her baby-father in a fit of rage that evening, although she has no recall of doing so.

[46] Defence counsel is all too well aware of this evidentiary quandary: that on the evidence of her client and Kubi there is simply no real-world foundation for a defence of consent or self-defence. On their evidence, and taken at highest, there is really nothing for the defendant to respond to that called for more than the modest bear-hug they both say he effected. Neither come close to describing physical aggression of the intensity, frequency or duration attributed to the defendant by the rooftop witnesses. There is no need on their evidence to resort to background or surrounding circumstances to help "contextualize" something that, on their sworn recounting, never occurred.

[47] Accordingly, the defence advances a creative approach to crafting the necessary evidentiary foundation for its alternative position. On the basis that I can accept all, some or none of the evidence, counsel asks me to review all the evidence and, in effect, marry that of the rooftop witnesses as to the defendant striking Kubi with that of the defendant (and Kubi) as to his first being assaulted by her. I am then invited to apply the contextual analysis that derives from the "insiders"' testimony as to their historical relationship and the intensity of Kubi's anger with the defendant for his deception and infidelity to ground both reasonable doubt as to the defendant being the primary perpetrator and, as well, the reasonableness of his response through reliance on the doctrines of self-defence or, much less likely, consent. Further, any inconsistency between this reading of the evidence and that of the rooftop witnesses (in particular, their failure to report any physical aggression by Kubi) is readily accommodated, says the defence, by recognition of their ventilated, stop-action, audio-free and, ultimately, randomly selective perception of the events across the street.

[48] I have no difficulty finding ample ingenuity in the defence suggestion as how best to construe the evidence. I have much more difficulty finding that the evidence clears the admittedly low threshold of "air of reality" required for further adjudicative consideration. Before considering that question, I first address the predicate inquiry: am I satisfied to the requisite criminal standard that the defendant, as alleged by the Crown, struck Kubi?

(d) Assessing the Core Allegation

[49] The defendant's and Kubi's narratives of the events in the apartment are each inherently rational and internally consistent. Apart from Kubi's reticence to concede hitting the defendant or pushing him more than once, their accounts are cross-confirmatory. Each testifies to an argument that escalates into a brief fracas. Kubi pushed, and perhaps hit, the defendant in his chest. He, in turn, restrained her by way of a pacifying bear-hug. This sequence may have been repeated but, in any event, the defendant never hit or slapped Kubi and certainly not on the face. Absent any contrary account, there would be little reason to doubt the veracity of that tendered by Kubi and the defendant, let alone extinguish any reasonable doubt as to its truthfulness.

[50] There is, however, a formidable contrary account. Three persons situated directly across the street each claim to have witnessed a man, the defendant, repeatedly and forcefully slap and hit a woman, Kubi, about the head and face. Kubi barely defended herself by raising her arms, let alone physically resisted. She was not seen to strike at or push the defendant. It was a clear night. The windows of the apartment occupied by Kubi and the defendant were uncovered and otherwise unobscured. The apartment was internally illuminated. The three witnesses were straight and sober adults whose attention was only drawn to the events across the street by Kubi and the defendant's loud exchanges. The police interviewed each of the three witnesses independently within an hour or two of the occurrence and preserved, by way of signed police notations, the witnesses' first recall of the events they observed.

[51] There are inconsistencies, some arguably material, among the three witnesses' accounts, including whether Kubi was sitting or standing when she was hit, whether she was or was not holding her baby, the number of times she was hit, whether Kubi was pushed or thrown as well as hit, and the estimates of the duration of the event preceding the arrival of the police. The witnesses' field of vision was restricted to the dimensions of the windows that literally framed their view of the inside of the apartment. Arran's testimonial insistence that he saw the defendant strike Kubi, and repeatedly, is inconsistent with the omission of such allegation in the notes of his interview with the police. Mattie's testimonial recall of the number of times the defendant struck Kubi is about double that she first told the police, although she did then preface her answer with the words "at least". None of the rooftop witnesses maintained a constant vigil; their sightlines changed and their views were interrupted. Further, all three knew each other, shared their reactions as the events unfolded, and at least two of them, Victoria and Arran, later discussed the incident.

[52] The only tangible evidence arguably bearing on the creditworthiness of the rooftop witnesses' accounts is that of the police officers respecting a fallen fan and a detached window screen found in the apartment living room and, as earlier noted, their observations of Nana Kubi's profuse sweating and slightly swollen forehead when first questioned. The disarray in the apartment has only tenuous probative value, if any, as it is as consistent with the ongoing apartment renovations and admitted pushing as it is with the violence described by the three friends; it is also not directly confirmatory of any of the rooftop witnesses' specific observations. Similarly, I find that Nana Kubi's testimony effectively neutralizes any negative inference that might otherwise be drawn from her physical condition when first confronted by the police. Absent expert medical evidence (and none was here called) I am not prepared to conclude that the results of the cursory police examination of Kubi's face are either consistent with her being slapped or, conversely, that the absence of any red marks or bruising permit me to infer that no slapping occurred.

[53] My inventory of testimonial concerns respecting the three rooftop witnesses is not insignificant. However, I would be far more concerned as to the credibility of their accounts if their narratives were near-identical or even so closely parallel as to suggest collusion or a tailoring, consciously or otherwise, of their evidence. I do not make such findings. Although Mattie was, by any measure, an enthusiastic witness, I conclude that all three made their best effort to tell the truth. They were, in short, honest narrators. Although friends, they can also fairly be described as independent witnesses. They did not know either Kubi or the defendant. They had no emotional investment in the parties or interest in the affairs across the street before they were made unwitting witnesses to their development. They were all intelligent and level-headed. Their decision to call the police reflects both their civic-mindedness and the gravity of the events they observed. They each delivered their evidence in a clear and articulate manner, acknowledging frailties in their perception or memory while adhering to the firm elements of their recall.

[54] My assessment of the reliability of the rooftop witnesses' evidence is not affected by their ignorance of the incident's contextual matrix. Indeed, their unfamiliarity with the players, their history or the precipitating events lends additional credence to their accounts, focusing their perception and recall on what they actually observed rather than its purported or assigned meaning. The fact that they are strangers to the parties enhances rather than prejudices the witnesses' reliability. The issues are uncomplicated, reduced at this threshold stage to the factual question of whether the defendant struck Nana Kubi. The absence of a contextual appreciation renders the witnesses more like cameras than cultural interpreters, more ethnographers than anthropologists. By dint of their contextual remove, the rooftop witnesses are near-natural practitioners of the "Just the facts, ma'am" school of forensic investigation (as pioneered by Jack Webb playing Sgt. Joe Friday on Dragnet throughout the 1950s.)

[55] While recognizing the distinctions between their recitations, the conjunctive force of their three accounts persuades me of the core accuracy of the rooftop witnesses' testimony. The defendant, I find, did repeatedly strike Kubi about the face and head. The "insiders'" accounts do not leave me in any doubt respecting this conclusion. As said by Doherty J.A. for the Court of Appeal in R. v. D. (J.J.R.), 215 C.C.C. (3d) 252, at para. 53; leave to appeal refd, [2007] 1 S.C.R. x:

An outright rejection of an 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 an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

(See, also, the subsequent Court of Appeal decisions in R. v. Windibank, 2012 ONCA 237, at para. 6; R. v. Flynn, 2010 ONCA 424, at para. 9; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 67 and R. v. R.M., 2014 ONCA 785, at paras. 28-29 and the Supreme Court judgement in R. v. M. (R.E.), 2008 SCC 51, 235 C.C.C. (3d) 290, at para. 66.)

(e) Assault, Context and Justificatory Defences

[56] This conclusion respecting the defendant's application of force compels consideration of the second question to which I earlier alluded: does his and Kubi's interpersonal dynamic – the "context" – afford him a defence? A preliminary issue, however, is whether this question merits adjudicative attention. As said by Lamer C.J.C. for the majority of the Supreme Court in R. v. Park, [1995] 2 S.C.R. 836, at para. 13, "A jury must not be invited to speculate on issues that are not realistically before it". This injunction applies with equal force to, as here, a judge presiding over a judge-alone trial: R. v. Davis, [1999] 3 S.C.R. 759, at para. 77.

[57] The defence proposal to merge portions of the two sets of evidence to create a platform for consideration of a defence of self-defence or the consensual exchange of physical force provokes application of the "air of reality" test. In my view, the defence's alternative position invites not only a selective canvass of the evidence but a tendentious and unreasonable one. Unlike R. v. Esau, [1997] 2 S.C.R. 777, this is not a case where the evidence favouring the prosecution and that favouring the defence can be realistically "cobbled" or "spliced" together. In Esau (esp. at paras. 17-20), the defendant's claim of an honest mistake as to the complainant's consent to sexual intercourse was held to meet "the threshold of a plausible explanation of the facts [that] should have been put to the jury" where both parties were intoxicated and the complainant had no memory of the critical events and never testified to not consenting. There is no realistic latitude for such reconciliation of the evidence tendered through the two camps in the case before me.

[58] The "circumstances" relevant to a determination of whether a claim of self-defence is "reasonable", as set out in s. 34(2) of the Code (including the proportionality of the response), renders it virtually impossible – not "plausible" in the language of Esau – to advance such defence given, on the one hand, the relatively minimal force the defendant and Kubi both say she applied to him and, on the other, the repeated slaps and blows the rooftop witnesses all say he applied to her while she remained passive. Even accepting, if in arguendo, that the defendant believed he was acting in self-defence, his (re)actions were clearly and objectively excessive. The law does not condone or excuse the use of excessive force. As said in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 86, the application of the "air of reality" test,

… requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence. Where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury. This duty of the trial judge is at the very heart of the air of reality analysis.

Bearing in mind that the alternative defence position effectively depends on acceptance of the rooftop witnesses' testimony respecting the nature of the defendant's aggressive behaviour (if not necessarily the frequency of the alleged blows), I cannot find capacity for a "reasonable inference raising a reasonable doubt on the basis of the defence" advanced. Accordingly, and consistent with my judicial "duty", there is no need for me to further entertain the alternative position or the defence it is claimed to comprehend.

D. CONCLUSION

[59] In summary, I have no doubt that the defendant did repeatedly strike Kubi and that no recognized defence or cognizable excuse avails him. In the result, I find him guilty of the offence of assault.

Released on July 28, 2015

Justice Melvyn Green