Court File and Parties
Ontario Court of Justice
Date: 2015-10-14
Court File No.: Durham Region 998 13 A15040
Between:
Her Majesty the Queen
— and —
Jacinth Curtis Grant
Before: Justice De Filippis
Heard on: March 16, August 27 & 31, 2015
Reasons for Judgment released on: October 14, 2015
Counsel:
- Mr. D. Parke — counsel for the Crown
- Ms. V. Colby — counsel for the accused
Judgment
De Filippis, J.:
Introduction
[1] On 7 December 2013, the defendant was arrested and charged with assault causing bodily harm to Marlon Haynes and with assault and robbery with respect to Tanika McLeod. The charges arise from events that occurred, in the early morning hours, outside a nightclub in Oshawa. The defendant and complainants had been inside the club. Fighting broke among some people as a large group left the premises at the close of business. As a result, the two complainants were knocked to the ground. Marlon Haynes has no memory of the incident. Tanika McLeod lost personal possessions. On the arrival of police, the defendant ran away. He was chased and apprehended. He was in possession of some of Ms. McLeod's property. The defendant insists he fled to avoid being caught up in a police investigation and that he picked up Ms. McLeod's property, mistakenly believing it was his.
[2] I heard from nine witnesses and received eleven exhibits. I find the defendant guilty of assaulting Tanika McLeod. I dismiss the other charges. These reasons explain this result.
Evidence
[3] Akiela McLeod is a 24 year old university student. The complainant, Tanika McLeod, is her cousin. On the day in question, the two women went to the Marquee nightclub in Oshawa with five others; Christina Francis, her brother Donovan (last name unknown), as well as Stacey Noble, Jamal (last name unknown) and Marlon [Haynes]. Ms. Akiela McLeod said she had two alcoholic drinks. She testified that as this group danced and talked among themselves, she was made to feel uncomfortable by others who attempted to join them. One man, in particular, tried to do so several times and another "was staring at Tanika". The latter wore a blue baseball hat and blue sweater.
[4] According to Ms. Akiela McLeod her group of friends left the club at about 1:30 AM, along with many others. As soon as they exited the front door, the man with the blue hat and sweater grabbed Ms. Francis by the arm. This is the same person who had previously been staring at Ms Tanika McLeod. The men in her group told that man to let go of Ms Francis. He did so but then "grabbed" Ms Tanika McLeod. By this point a second group of men had formed and the two crowds yelled and pushed each other. Ms Tanika McLeod "pulled away" from the man that clutched at her and shouted "get off me". The witness testified she saw a cellular phone on the ground which she thought might belong to the man. She intended to get it to call 911. However, the man in the blue hat and sweater punched her cousin, causing her to fall to the ground. The assailant crouched down beside her. As the witness ran to assist her cousin, another man began to kick her as she lay on the ground. Meanwhile, Ms. Francis intervened to help her brother who was being assaulted and somebody knocked Mr. Haynes to the ground.
[5] When Ms. Akiela McLeod ran to help her cousin, she was punched in the face by a man. As the crowd of assailants dispersed, the witness saw Mr. Haynes on the ground having a seizure from all the people kicking him". The witness did not see who caused Mr. Haynes to fall to the ground. When asked if the "man in blue had anything to do with knocking down Marlon [Haynes], she said, "Not from what I saw". She said that the man who had punched her and kicked her cousin wore a sweater with a "cheetah print" on the chest and black sleeves.
[6] Ms. Akiela McLeod provided two statements to the police; a brief one at the scene and a longer one later. In both statements she described a man in a blue hat. She did not report that he wore a blue sweater. She conceded that she did not pay attention to what the man in the blue hat was doing whiled crouched down beside her cousin as she was more concerned about the "cheetah print guy".
[7] Ms. Tanika McLeod is a 21 year old university student. She said she does not normally drink alcohol and on this evening had one cranberry vodka that she did not finish. The complainant testified that while in the club she was repeatedly approached by a man who wanted to dance. Another person, a "man in blue" remained off the dance floor but "stared" at her. This made her feel "very uncomfortable". She said this man was six feet and two or three inches in height, wore a blue cap, blue sweater, black vest, and blue pants. On leaving the club, her group of friends followed 20 – 30 people out the front door. The man in blue grabbed her by the waist and said "come on, let's go". The complainant pushed him away as she said, "don't touch me". Ms Tanika McLeod testified that there was a group of men around the man in blue and a fight broke out between them and her male companions. She said, "I'm not exactly sure who hit who first….it got very hectic very quickly". She saw Ms Francis run to the aid of her brother [Donovan] as he was attacked by five or six men. She also observed one of the men in her group, "Johnny" [Marlon Haynes], fighting with "a few men". She would later see him on the ground being kicked by several men and that he "suffered a seizure" and was "foaming at the mouth".
[8] The complainant testified that during this "mess" she yelled to the man in blue, "Why are you doing this?" and "This is your is fault". She added that as a result:
He punched me in the face. I fell. My glasses fell off". I got back up. I remember having a shoe in my hand. Christina, both of her shoes came off at some time and I had one in my hand so I stood back up, I tried to use that to defend myself….I was hit to the ground again by the man the blue cap but I believe people were trying to hold him hack, so I stood up and I was knocked from behind by somebody else and I was hit on the ground by a few men.
[9] Ms Tanika McLeod said that her cousin, Ms Akiela McLeod, tried to help as she lay on the ground and that one of the men that had been hitting her wore a "cheetah print sweater". She added that after being knocked to the ground, her purse was taken. It is not clear if she lost possession of it before or after falling to the ground. It held money, a driver's licence, student card, credit card, debit card, and a white iPhone. The purse was later found at the scene by police and returned to her with most of its contents. However, her student card, driver's licence, and cell phone were missing.
[10] The complainant identified the defendant as the man in blue who assault her. She explained that she saw him outside the courtroom as they both waited for the trial to commence and that it was "definitely him". She admitted that she had not identified him before this time. The complainant denied her identification is based on the fact that she subsequently learned the defendant was arrested in possession of her student card and cell phone. She also conceded that although she asked the defendant at the scene if his conduct was due to her refusing to dance with him, in her statement to police she said he had never asked her to dance. When confronted with this she testified, "I found this puzzling as well". Neither counsel asked to her elaborate on this answer.
[11] The McLeod cousins both testified that they only saw one man that evening wearing a blue hat and sweater. A screen shot from social media shows that a number of men wore blue hats on the day in question.
[12] Mr. Marlon Haynes testified that his nickname is "Johnny" and he was part of the group that went to the club with the McLeod cousins. On leaving the club he saw Donovan "get hit from behind" as he defended his sister. Mr. Haynes has "no recall" what happened to him. His next memory is awaking at a friend's home. He cannot recall being at a hospital and, since then, has had difficulty "speaking in complete sentences".
[13] Christina Francis is 25 years old. She confirmed the identity of the group of friends that went to the club. She testified that the McLeod sisters had no more than two drinks and she only had one. She said that on leaving the club a "drunk guy" wearing a "white shirt" grabbed her hand. When her brother told him to stop, another man, wearing a baseball hat and blue jacket, said, "What the fuck are you going to do about it". After this, "everything happened quickly": Fights broke out. She participated in the fighting. She saw Marlon [Haynes] "get punched and fall back – he was having a seizure". Ms. Francis saw the McLeod cousins being kicked by men, including the "blue jacket guy", as they lay on the ground. She went to assist Haynes who had "foam coming out his mouth" but was pushed aside by the same blue jacket guy and then witnessed him "step in [Hayne's] face" with his "boot".
[14] Ms. Francis identified the blue jacket guy as the defendant. She added that he ran away on the arrival of the police and that she saw the latter chase after him. Later, while giving a statement to another police officer, she became aware that the pursuing officers had returned with a man in custody. She cannot say if it was the blue jacket man as she was focussed on her statement. Ms. Francis confirmed that others also fled the scene on the arrival of the police.
[15] P.C. Ficko is one of several officers dispatched to deal with the disturbance outside the Marquee nightclub. He operated a marked cruiser with his partner, P.C. McCracken. Both officers were in uniform. P.C. Ficko described the scene as "a chaotic mess". He immediately noticed a man lying motionless on the ground and a number of people pointing to another man "running away from the injured man". The club is situated on King Street, an east-west road. Immediately to the east is Albert Street, a north-south road. To the west is Celina Street, another north-south road. The city square block is completed by Athol Street to the south. It runs parallel to King Street.
[16] P.C. Ficko testified that the man ran in a south-east direction, away from the nightclub. P.C. Ficko pursued him in the cruiser. In an attempt to cut him off, he drove south on Albert Street, turned left [eastbound] on Athol Street, and left again [northbound] into a plaza parking lot. The man responded by changing direction and he ran northwest out of the plaza and north on Albert Street. The officer could not follow with the vehicle from this area. P.C. McCracken exited the cruiser and chased the man on foot while P.C. Ficko retraced his original route and then turned left [westbound] on King Street. In so doing he was now driving the wrong way on this major one-way road in Oshawa. He managed to cut off the man as he was pursued by P.C. McCracken, near the corner of King and Celina Streets. By the time P.C. Ficko exited the cruiser, his partner had caught up to the man.
[17] The man was described as a black male, heavy guild, about six feet tall, and dressed mostly in blue. The man was "extremely uncooperative" and "actively resisted arrest" but did not assault the officers. He was "grounded" and handcuffed. He identified himself as Jacinth Grant and P.C. Ficko confirmed that he is the defendant in this case. The defendant was searched as an incident of arrest. A student card and driver's licence in the name of Tanka McLeod were located in his rear pant pocket. A white iPhone was found in his right front pocket.
[18] PC McCracken testified that she and P.C. Ficko arrived at the Marquee Bar at about 3 AM in response to a fight call, adding that "there are often issues there". She saw an apparently unconscious man on the ground and a "hysterical female beside him". The female "pointed across the road to a male….a tall black male with blue sweater and ball cap". This person was standing alone. P.C. Ficko called to the man and he fled. Both officers pursued him, with P.C. McCracken doing so on foot. She testified that she told the man to stop and observed him continuously until she grabbed hold of him about 100 meters away. She described him as "non-compliant" until he was handcuffed. The man identified himself as Jacinth Grant and protested that he had done nothing wrong. He was arrested for assault. P.C. McCracken noted that she did not see anybody else flee the scene.
[19] Jacinthe Grant testified that he is employed as "a youth worker". He said he went to bar in question at the suggestion of his friend, Colin. They arrived by taxi around midnight. The defendant had never been to there before and said: "As soon as I got there your honour I felt out of place – ninety percent of the people were under 25 and I'm 33." He became more comfortable on seeing a friend his age, Christine, but added that the packed club was "Not for me…all had baseball hats and bandannas. I thought it would be more multicultural, not that crowd". The defendant said he had two beers (Heineken) by closing time and left with Colin. On leaving the club, the defendant saw 30 to 40 people fighting and noted that "somebody was stomping on somebody". He explained that "it was total anarchy….I've never seen anything like this in my life."
[20] The defendant testified that he wanted to "get away from the situation" and walked across the street, to where taxi was parked, at the corner of King and Albert streets. As he did so, he was "hit from behind" and felt a "stab to neck and a girl took out her purse and slapped me in the face while accusing me of asking her to dance or something". He said the woman "was drunk and I told her she had wrong person". The defendant identified this woman as Tanika [McLeod] and noted that she stuck him "numerous times". At this point, "a man in a cheetah print hoodie came and knocked her to ground….then another girl grabs the hoodie guy …they struggle ….the police come…everyone disperses…if the police had not come who knows what would have happened…I ran and fell."
[21] Before fleeing the scene, the defendant saw a cell phone and identification on the ground. He picked these up. He testified that he has a full time job and would never jeopardize his career by stealing and that he picked up the items thinking that they were his. He added that while running away, he never heard anybody tell him to stop.
[22] The defendant produced photographs of the injuries he suffered; a bruise to the side of his face, a bloody eye, and a mark behind his ear. He attributed the bloody eye to being hit with the purse and suggested the mark behind the ear, where he felt the stabbing motion, is consistent with a high heel shoe.
[23] The defendant stated that he only spoke to Colin and Christine. He did not stare at anybody. He did not see the four civilian witnesses for the Crown until he arrived at court for his trial. He testified that he had worn a Blue Jays hat, a blue hoodie, and light blue jeans with white trim on side. Overtop the hoodie he wore a vest; brown at the top, with a navy blue bottom, and a white fringe/ring. He had running shoes on his feet. He added that after his arrest, he offered to leave his clothing with the police "for testing".
[24] The defendant explained that he does not have much of a social life and reluctantly went to club, adding that his time is taken up with his two children and coaching basketball. He confirmed that on leaving the bar, he crossed the street to avoid the fights. He said he was then attacked from behind by Ms. Tanika McLeod. He added that "when I turned around I saw shoe in one hand and purse in other…I got the worst of this…I hit the ground to protect myself and when I turned around to see who hit me, I saw a girl and I was hit with purse as she yelled at me". The defendant testified that he had two cell phones with him that night, one white and one black – "for work and personal". He said he left his wallet at home but had money and identification with him. When asked if he "normally kept his wallet in the same pocket" he responded that, "I don't normally go out much".
[25] The defendant clarified that he did not fall completely to the ground and that this is when he thought he had dropped his cell phone: "I stumbled…and she swung her purse at my face and yelled at me". This is when he saw items on the ground; "I thought it was mine and grabbed it all…I wanted to get out of there quick". He was pressed on this matter:
[26] The defendant conceded that he ran away from the police but said he did not see and hear anybody point to him and say "it's him". When asked, "Did the cruiser pull directly in front and cut you off", the defendant gave a long and somewhat confusing answer. When the question was repeated, he answered, "No, it came in front of me, but it didn't cut me off". He disputed the evidence of the pursuing officers that he fled eastbound into a parking lot and that he evaded the police cruiser as it came onto this scene. The defendant testified that what, in fact, happened is that he ran directly westbound on King Street and fell in front of the front doors of the club. This is where he was grabbed by the female officer and arrested with the assistance of her partner. The defendant insisted that he did not struggle with the police or resist arrest but was trying to explain that they had the wrong person: "I might have been a little bit frustrated and anxious like now".
[27] Colin Brunet accompanied the defendant to the Marquee Nightclub. He recalls that the latter wore a blue jays hat and light blue jeans and had a beard. They have been friends for 15 years. He confirmed that there was a young crowd inside the club and that neither he nor the defendant went on the dance floor. At closing time, the two men left the club to get into a waiting taxi on Albert Street. They saw a "big commotion…fights everywhere and a guy on the street getting stomped". They decided to "get outta here". Mr. Brunet testified that at this time, a "really drunk girl" hit the defendant; "I don't know she had a shoe or a purse". He heard the defendant say "I didn't even dance with you". After this, "a guy hit the girl from behind and another piles on". Mr. Brunet saw the defendant run away and he did the same.
[28] Mr. Brunet explained that he fled because he "didn't want to be one of those rounded up". When asked why he left in a taxi without the defendant, he responded that "he went one way and I went the other" and later pressed on the point added, "when the police come, I leave". He said the defendant ran back towards the club. Just before doing so he heard him say "let's go let's go". He did not see his friend pick up anything from the ground and cannot comment on why he was found in possession of Ms. Tanika McLeod's cell phone and identification. He also testified that he did no see anybody point at the defendant, nor did he see the police chase him.
[29] In cross-examination, Mr. Brunet stated that he did not actually see "the girl" hit the defendant but saw the "aftermath". He said he assumed she struck him with a purse "because she is a girl". He denied having discussed the details of the night in question with the defendant. Mr. Brunet described the girl as a lighter skinned black person. He said the man who attacked her punched her in head and she went down. This man then started to kick her and another woman intervened to protect the victim. A group of men came on scene, one of whom had a cheetah print sweater. The witness reported that he also saw "a man on the street getting stomped on the head" by an unknown assailant.
[30] The evidence of Mr. Hristo Demirevski, a paralegal, was tendered by way of an agreed statement of facts: He took photographs of the defendant at the courthouse on December 9, 2013 (two days after the events in question). There are no visible marks on the defendant's hands or knuckles. There is a light bruise behind his ear. He wore light blue "True Religion Jeans".
Submissions
[31] The Defence argues that this is a case of "confusion and unreliable Crown evidence" on the one hand and the "defendant's credible testimony" on the other. Counsel cautions that with a hectic scene involving fights among 30-40 people, identification is a live issue. In this regard, it is pointed out that none of the Crown witnesses mentioned the defendant's "prominent beard and moustache". Moreover, there is some confusion among these witnesses with respect to whether the defendant is a light or dark skinned black man. Ms Tanika McLeod did not mention a man in a blue hat until her second (longer) statement to police and did not note the blue sweater until trial testimony. Ms Francis testified that the complainant's assailant did not have "light" blue pants.
[32] The Defence suggests that there is nothing in the photographs taken by police of Ms. Tanika McLeod to support her claim to being punched in the face up to three times. It is submitted that Ms. Francis cannot be relied upon to prove the defendant stomped on Mr. Haynes head and that the defendant's explanation for his flight removes any sinister implications. In this regard, it is conceded the defendant was "uncooperative" on arrest but that I should accept his testimony that this was due to "frustration".
[33] The Crown anchors its case on the fact that the police chased the defendant and had to tackle him to the ground to complete the arrest. This, it is said, reflects consciousness of guilt and proves the defendant's trial testimony about the nature and extent of that flight shows is untruthful. Moreover, the Crown submits that given the chaotic scene the "minor inconsistencies" between the civilian witnesses for the Crown is not surprising or troublesome. In addition, I should not be unduly concerned by the different descriptions of the defendant's facial hair because Defence counsel failed to put the "prominent beard and moustache", to the Crown witnesses.
[34] The Crown argues that Ms. Francis was not undermined in her testimony that the person who stomped on the head of Mr. Haynes is person she pointed out to be police. Accordingly, since PC McCracken never lost sight of that man during the chase, I can be confident the defendant is the person responsible for that crime. Counsel suggested that there is no reason for the defendant to have believed his cell phone and identification fell to the ground during the confrontation with Ms Tanika McLeod and that his claim he mistakenly picked up her property is incredible.
Analysis
[35] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This standard of proof is set out in the often cited decision by the Supreme Court of Canada in R v W.D. (1991), 63 C.C.C. (3d) 397. A helpful discussion of the applicable principles is set out in R. v. DiPucchio 2009 ONCJ 39:
15 I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
16 While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witnesses appears more credible. As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 3177, at para 5 noted recently:
W.D. and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of a Crown witnesses to that of defence witnesses.
17 I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:
However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
18 Proof beyond a reasonable doubt means what it says. There is, thus, nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused, or the evidence of any other defence witnesses, or the absence of evidence, the charge must be dismissed: R. v. Lifchus, [1997] 3 S.C.R. 320.
[36] As the passage cited above makes clear, the application of the criminal law standard of proof does not mean evidence, including that of a defendant, is viewed in isolation. Context is important. Indeed, in R v T.S. 2012 ONCA 289, it was held that in the appropriate case, a trier of fact may reject a defendant's evidence on the basis of a reasoned acceptance beyond a reasonable doubt of a complainant's testimony.
[37] The Crown and Defence evidence agree with respect to these essential facts: The defendant left the Marquee Nightclub at the same time as the complainants and their circle of friends; fighting broke out among several people and groups outside the club; there was a confrontation between the defendant and Ms. Tanika McLeod; when the police arrived, the defendant ran away; he was chased and tackled to the ground; and, he was found with property belonging to Ms. Tanika McLeod.
[38] The McLeod cousins are consistent in their account of the defendant's actions. Both testified that he stared at Ms. Tanika McLeod inside the club, grabbed her as she left the premises, and punched her in the face outside. In identifying the defendant, both describe clothing that is similar, but not identical, to that worn by the defendant at the time. Ms. Francis also saw the defendant assault Ms Tanika McLeod. She differs in stating that the defendant did not first grab her but, rather, verbally accosted her. She is also the only one who claims she saw the defendant "stomp" on the head of Mr. Haynes as he lay on the ground.
[39] There is no reason to doubt the sincerity of the three female witnesses. The issue is the reliability of their evidence. I am not troubled by the fact that other patrons of the bar wore blue caps. What clearly emerges from the testimony of these witnesses – and admitted by the defendant – is that he was dressed primarily in blue. This is distinctive. The Crown claims that the Defence violated the rule in Browne v Dunn by not putting the suggestion to these witnesses, as later testified to by the defendant and Mr. Brunet, that the defendant had a "prominent beard and moustache". This is not entirely correct. Defence counsel did put that suggestion to Ms. Tanika McLeod and she described the defendant's facial hair as "stubble". I need not concern myself with this issue or consider the impact of the failure to put the suggestion to the other Crown witnesses; given the other evidence implicating the defendant in the assault on Ms. Tanika McLeod, I am not troubled by the matter.
[40] Standing alone, I could not rely upon the at trial identification of the defendant, as her assailant, by Ms. Tanka McLeod. However, such identification by the other two witnesses was not undermined and I accept it as credible and reliable. As will be explained, I am less confident about the testimony of Ms. Francis that the defendant also assaulted Mr. Haynes by stomping on his head.
[41] The application of the criminal law standard of proof is, of course, incomplete without a consideration of the Defence evidence. I find Mr. Brunet cannot be trusted with respect to the defendant's activities. He confirmed the defendant's version of events about the encounter with Ms. Tanika McLeod but later conceded he did not actually see the confrontation, only the "aftermath". His evidence reflects the fact that he discussed the events with the defendant. In all the circumstances, it would be natural for two friends to do so. As such, his testimony that they did not discuss the events cannot be believed.
[42] With respect to the defendant, I agree with the Crown that, in applying the criminal standard of proof in this case, much turns on the inferences to be drawn from the defendant's flight from police. It reflects the defendant's consciousness of guilt and causes me to reject his testimony. That the defendant ran away at all is potentially suspicious. That he did so in the manner described by the police makes it incriminatory. The different accounts of the nature and extent of the flight are irreconcilable. The defendant testified that he ran a short distance back to the front doors of the nightclub, where he fell and was arrested. The two officers who apprehended him described a chase that took them partially around, and diagonally through, a city block, with a forcible arrest 100 meters west of the club. More to the point, it is impossible that either the defendant or the two officers is mistaken; one or the others is not telling the truth.
[43] I have no doubt that the police version of the chase is truthful and accurate. I come to this conclusion for several reasons: The officers in question were on routine patrol, came upon a chaotic scene, and immediately pursued a man others were pointing at. The pursuit involved a police cruiser. At one point, it blocked the defendant's way, causing him to change direction. At this time, one of the officers exited the cruiser and ran after the defendant on foot. The other officer continued in the cruiser and drove the wrong way on a major street to block the defendant. They grounded him to make the arrest. The testimony of the officers stands in stark contrast to that of the defendant but was not otherwise undermined. The details of the chase are remarkable and were recorded in contemporaneous notes. The officers cannot be mistaken. If they are wrong in their account it is because they are lying. However, there is nothing to support an inference of fabrication. There is no relevant history between the police and the defendant or anything else suggesting falsehood.
[44] I am convinced the defendant lied about the nature and extent of his flight from police. I am also confident it reflects consciousness of guilt. In this regard, I am mindful that post offence conduct must be treated carefully; it must be relevant to a live issue and with due regard to non-sinister explanations for it: See R v White 2011 SCC 13, [2011] SCJ No. 13 (S.C.C.). In this case, the flight from police is relevant to the defendant's credibility and as evidence of guilt. The only reasonable inference is that it was a response by the defendant to people pointing at him and reflects his interpretation of this gesture as an accusation. The defendant asserts he did not see the gesture and simply wanted to avoid being caught up in a police investigation. I do not accept either statement. However, even assuming he did not see people pointing at him, there is no reason, in the circumstances of this case, or in the background of the defendant, why he should want or need to avoid the police.
[45] My comments with respect to the defendant's flight from police cause me to reject much of his testimony. I find the following facts have been proven beyond a reasonable doubt: The defendant stared at Ms. Tanka McLeod while inside the club and grabbed her by the waist as she left the premises. This resulted in an exchange of angry words and gestures between two groups, in the course of which Ms. Tanika McLeod shouted that the defendant was to blame. He punched her in the face or forehead, knocking her to the ground. The complainant stood and assaulted the defendant with a shoe and/or purse. He struck her again. Her cousin came to assist and both women were kicked while on the ground by the defendant and others.
[46] While I conclude the defendant assaulted Ms. Tanika McLeod, I am not persuaded he intended to deprive her of property. Having regard to all the evidence, I do not reject the defendant's claim that he picked it up mistakenly. Ms. Tanika McLeod lost possession of her purse, and the contents spilled to the ground, during her struggle with the defendant and others, including the man with the cheetah print. This may have occurred before she was initially punched by the defendant. Ms. Akiela McLeod saw the cell phone and, assuming it belonged to the defendant, wanted to pick it up to call police. Instead, the defendant crouched down and quickly left. He picked up that phone and identification. He did not see, or pick up, the bank cards and money. In these circumstances, it is reasonably possible that he thought the items were his – property he would not want to leave behind as evidence of his confrontation with the complainant.
[47] Notwithstanding my observations about the impact of the defendant's flight from police on my analysis of this case, I have a reasonable doubt about his culpability with respect to the assault causing bodily harm to Mr. Haynes. Ms. Francis is "certain" he "stomped on his head" as he lay on the ground, having been attacked by a group of men. This was not witnessed by the McLeod cousins. Moreover, the defendant would have had to be involved in two confrontations in a very short time span. While it is possible that he moved quickly between the two fight zones and that the McLeod sisters simply missed it, it would not be safe to convict. In this regard, I am mindful that P.C. Ficko testified that the defendant ran "away from the injured man". However, this observation, without more detail, does not put the Crown over the high burden of proof it faces.
Conclusion
[48] The defendant has been proven guilty of assaulting Ms. Tanika McLeod. The charge of robbing her and assault causing bodily harm to Marlon Haynes have not been proven.
Released: October 14, 2015
Signed: "Justice J. De Filippis"