Ontario Court of Justice

Date: 2016-02-29

Court File No.: Central East - Newmarket 4911-998-13-00993G-00

Between:

HER MAJESTY THE QUEEN

— AND —

DEVONTE WATSON

Before: Justice R.A. Minard

Heard on: June 16 and 17, October 28, 2015

Reasons for Judgment released on: February 29, 2016

Counsel:

• L. Thompson, counsel for the Crown
• N. Singh, counsel for the accused Devonte Watson

MINARD J.:

Introduction

[1] Mr. Watson is being tried before me on the following charges:

• Between the 1st day of March 2012 and the 31st day of March 2012 did confine Victoria Johns, contrary to s. 279(2) of the Criminal Code;

• Between the 5th day of July 2012 and the 6th day of July 2012 did commit an assault on Victoria Johns, contrary to s. 266 of the Criminal Code; and

• Between the 1st day of September 2012 and the 20th day of December 2012 did knowingly utter a threat to cause death to Victoria Jones, contrary to s. 264.1(2) of the Criminal Code.

[2] As to Count 3 (the threatening count) the Crown, in the course of submissions, requested this charge be dismissed. There was evidence from the complainant that the texts sent to her on the evening of July 5, 2012 by the accused included a threat that "He was going to fuckin' kill me." However, Count 3 alleges a time period between September 1, 2012 and December 20, 2012. While dates and counts are not generally essential averments (in the absence of established prejudice) the Crown advised that the gravamen of Count 3 was a quite different threat that the complainant had alleged in her police statement and repeated at the preliminary inquiry. She made no mention of this threat in her trial evidence. Accordingly I did dismiss this count.

[3] The Crown also invited the court to dismiss Count 1 (the forcible confinement count). This count was based on the complainant's allegations of an incident at a "hotel party" on March 1, 2012. It was the accused's birthday. Ms. Johns says she booked a room at a hotel near their high school to celebrate the birthday. According to her the accused got drunk. This upset her. She told the accused she was leaving and gathered up her things and left the hotel room, entering the hallway. The accused followed her, trying to convince her to stay. He picked her up and tried to pull her back into the room. She struggled against him. Catherine Harris and David Henderson were present and told the accused to let her go. He did. The complainant then left the hotel. The accused followed her outside. Ultimately he was able to coax and cajole her into returning to the party where she says she remained in the bathroom with the door closed for approximately two hours.

[4] The gravamen of the offence was the relatively brief incident in the hallway. I should add that the accused testified that this incident is a fabrication and that he, not the complainant, arranged a hotel party to celebrate his birthday but that he then became ill and cancelled. David Henderson in his evidence could recall no such hotel party or any such incident.

[5] The Crown submits that given some troubling evidence that arose in the cross-examination of Ms. Johns (which I will review later in these reasons) it would be unsafe to base a finding of guilt on her evidence alone. I advised the Crown that even if the complainant's evidence is accepted on this count, in my view it still falls short of making out the offence of forcible confinement. The brief incident in the hall is more in the nature of a clumsy attempt by the accused to convince his girlfriend to return to the party. In my view it falls short of demonstrating beyond a reasonable doubt an intention to confine the complainant against her will to this hotel room.

[6] In the result I conceded to the request and dismissed this count in the course of Crown submissions.

[7] The principle charge is Count 2, the assault charge pertaining to July 5-6 of 2012. The alleged facts, if true, are of an egregious nature. The defence is that the incident never occurred and is a fabrication by Ms. Brown and the complainant, Ms. Johns.

[8] The matter is dated. The accused had elected trial in Superior Court. A preliminary hearing was conducted and the accused was committed to stand trial. In Superior Court the accused re-elected to have his trial in this court with the consent of the Crown.

[9] At the trial, which commenced before me on June 16, 2015, the Crown called two witnesses, Beverley Brown and the complainant.

Beverley Brown

[10] Ms. Brown was 21 at the time of her testimony. She returned from British Columbia to give her evidence. She has no criminal record. She is a close friend of the complainant. They went to grade school and high school together. Their relationship became less close in grade 10 when Ms. Johns began to date the accused. She was acquainted with the accused, Mr. Watson. She estimated Ms. Johns dated the accused for about a year and a half with the relationship breaking up in 2012, prior to the Spring prom. At that time they were in grade 12.

[11] She says she and the complainant went to an arcade establishment known as Lovegetty, situate in Markham near Highway 7 and Commerce Gate. By this time the complainant had established a relationship of some sort with a Jonathan Kofkin. Her and Ms. Johns had met up in the evening with the intention of attending at Mr. Kofkin's house. However Ms. Johns had received a phone call from the accused who was screaming at her, calling her a whore, saying something about her fucking a new guy. Ms. Brown had heard this screaming. Ms. Johns suspected that it was their friend, Joshua Lai, who had told the accused of the complainant's new relationship. They wanted to confirm this suspicion with Mr. Lai. To locate Mr. Lai, Beverley texted her boyfriend, Patrick Jerome Borgia (known as PJ). PJ messaged back that he was at Lovegetty and confirmed that Joshua was there. He said nothing about the accused also being present. Accordingly they drove to Lovegetty.

[12] On arrival she saw Deshaun, Joshua, Shaday (a female) and David Henderson and maybe others outside. She also saw the accused outside. She told Ms. Johns she had seen him. In fact, as soon as they pulled up is when she saw the accused exit Lovegetty. She told the complainant, who still wanted to talk to Joshua. Ms. Johns exited her vehicle and went and spoke to Joshua. Ms. Brown saw the accused staring at Johns and then begin walking towards her. She was of the view the accused was drunk. He was stumbling and not coherent. Deshaun went to the accused and held him back by putting his arm across the accused's chest. Brown could tell the accused was mad with a smirking facial expression. Deshaun was saying, 'You don't want to do this. You don't want to do this.' She says the accused did go up to Ms. Johns and grabbed her by the arm and turned her around and spit in her face with what she said 'was a lot of spit.' This was followed by the accused striking Ms. Johns in the middle of her face (she can't recall which arm was used). The force of the blow caused Ms. Johns' head to go backward and then she put her head forward, looking down on the ground. She went to Victoria and asked if she was okay but there was no response. By this time the accused was beginning to walk away. Eventually Ms. Johns began to walk after him, telling Ms. Brown to stay back and that she (Ms. Johns) can calm him down.

[13] She says the accused and Ms. Johns went to the end of the building, a distance that she estimated to be 80 to 100 feet. Ms. Brown remained with the group of people and was talking to Shaday about what occurred. She then heard Ms. Johns scream and looked back to see her on the ground. The accused was standing over Ms. Johns, pulling her up by the hair, then stomping on her. In clarifying she said he would pull her off the ground by her hair and then stomp her back down on the ground, which action would then be repeated. Throughout Ms. Johns was yelling and trying to "get out of" his grip. Ms. Johns was in a curled-up position trying to avoid the kicks at her, while at the same time attempting to loosen the accused's grip on her hair. In the course of doing this he would drag her a short distance (she described as a foot or two) towards the parking lot and then again stomp on her. She estimated the total number of 'stomps' at 'I'd say probably about six times.' She described the 'stomping' as lifting his foot up and forcefully putting it down into her body. The sole of his foot would hit her torso. She does not recall what the accused was wearing for foot-wear. In describing the force she said, 'Pretty forceful, definitely wanting to do damage.'

[14] She ran toward Ms. Johns to help her but she was held back by her boyfriend, PJ. David Henderson and PJ then went to the accused and pulled him off Ms. Johns. She stated it took them about 'a minute at least' to get the accused to release Ms. Johns. In the course of this, Ms. Johns was in a desperate situation trying to grab at anything to release the accused's grip and to get off the ground. In the course of this she said Ms. Johns reached up and grabbed David Henderson's shirt with such force that she "ripped it off" him.

[15] Once they were able to separate the accused from Ms. Johns, the accused continued to struggle to try and get back at her. Eventually Deshaun attended to assist David and PJ in restraining the accused. She also said there was a fourth guy assisting to hold the accused back but she does not know who. While this was occurring, the accused was screaming at Ms. Johns words to the effect that 'It takes four guys to hold me back.' She was afraid the defendant would continue the assault as he 'was enraged.'

[16] She got Ms. Johns to her car. They drove to Jonathan Kofkin's house. She noticed Ms. Johns' nose was red. It was dark out. Ms. Johns was crying throughout the trip to Jonathan's and kept repeating, 'I can't believe what just happened.'

[17] Entering Jonathan's house, Ms. Johns went straight to the washroom 'without even saying hi to Jonathan' to clean herself up. Upon coming out Ms. Johns seemed (physically) fine, although her makeup was 'a little smeared.' After she exited the bathroom, Mr. Kofkin tried to bring up what had happened but Ms. Johns said she did not want to talk about it. All of them then went to the backyard patio for a smoke and some drinks. She said that was when someone called Ms. Johns asking her if someone had called the police as the accused was in jail.

[18] Ruslan was also at Jonathan's with them. She said both Jonathan and Ruslan were shocked and mad at what had occurred outside Lovegetty.

[19] As to conversations about the incident at Jonathan's, Ms. Brown said that Victoria does not talk about private matters and that she was in one of her 'I do not want to talk about it' moments.

[20] She saw Ms. Johns a couple of days later. She noticed no bruising, while agreeing that Ms. Johns does wear a lot of makeup.

[21] Later that summer she was at a house party in Markham. Ms. Johns was there, as was the accused. She said at one point 'we were outside' and the accused came over to her and apologized for the night at Lovegetty by repeatedly saying, 'I'm sorry you had to witness that.' She was not sure what to say in response but did say, 'What would your mother think' to which the accused replied he had told her. She says she also 'kept saying' to the accused words to the effect of why are you apologizing to me. It wasn't me you did this to.

[22] Since the incident, she has not spoken about it to Ms. Johns beyond vague general references. At no time did Ms. Johns go into specific details of what occurred. She said when Ms. Johns is upset about something she does not like to speak about it. She knew it was important to talk about it with her, but as she put it 'You can't make them talk about it.' She had tried to bring it up with the complainant but it was clear the complainant did not wish to discuss it. She said there was only one time when she and Catherine Chu picked up Ms. Johns and Ms. Johns mentioned about possibly calling the police. To encourage her, Ms. Brown said that she would go with her to the police while reiterating that 'we should call the police.' However, Ms. Johns deflected the conversation to another topic and ultimately the call was not made.

[23] Concerning her not calling the police, she agreed with the suggestion that it was a safety issue for Ms. Johns and perhaps others but that at the end of the day it was the complainant's decision as to what to do. She denied the suggestion that the incident at Lovegetty was fabricated by her and Ms. Johns or that her evidence of the accused apologizing to her at Mr. Kofkin's house was also a fabrication.

[24] Prior to attending at Lovegetty with Ms. Johns, she could not recall if Ms. Johns told her of texts she had received earlier from the accused. She agreed with the suggestion that if Ms. Johns had told her she had received texts from the accused threatening to kill her that that would have stood out in her mind.

[25] Concerning the first altercation outside Lovegetty, she agreed with the suggestion it was a closed-fist punch by the accused to the face of Ms. Johns. The witness was then about five feet away. She thought the punch was such that it may have broken Ms. Johns' nose. She did not see any bleeding from the nose. It was a solid punch ('Yeah, oh yeah.') that she heard and immediately thought the nose would be broken. She agreed with the suggestion that when the incident moved to the other side of the Lovegetty building that Ms. Johns and the accused spoke for 'a maximum of five minutes' before he again assaulted her. Ms. Johns was in a curled fetal position on her side while being stomped by the accused. She agreed the bottom portion of Mr. Henderson's shirt was ripped off. She was not aware if there were any such injuries on Ms. Johns' legs. There was no black eyes and she noticed no swelling.

[26] The accused's apology to her occurred at a house that was situate near Bayview and Romfield. The accused arrived after she and Ms. Johns had arrived. She asked Ms. Johns if she wanted to leave and Ms. Johns said words to the effect that 'it's fine.' At one point she saw the accused talking with Ms. Johns. They were both sitting on a love-seat swing on the house porch. In addition, after the accused had apologized to her, Ms. Johns asked her what was said and she informed her of the apology.

[27] When she learned from her mother she was being subpoenaed for this trial (about a month prior to the commencement of trial) she called Ms. Johns, whom she had not spoken to in about a year, and left a voicemail message. The message informed Ms. Johns of the subpoena and inquired as to what was going on, 'We should talk about it (meaning like is she going to go to the trial and what's going on in terms of the status of the matter).

Victoria Johns

[28] At the time of her testimony Ms. Johns was 20 and employed full time. She has no criminal record. She dated the defendant for about a year and a half during high school. It was her first serious relationship. In describing the relationship she said the accused was aggressive, rough, with mood swings. Certain things she could not do without his permission.

Count 2

[29] It was July 5, 2012. As often occurred, she and Beverley Brown met up in the evening. The accused had sent her 'copius' texts saying inter alia that he knew she was with the Russian (Jonathan Kofkin). Some of the statements in the texts included that he was 'going to fuckin' kill me' while calling her names such as a 'bitch' and basically calling 'me every name in the book.' She recalls being in Beverley's mother's car with Beverley when these texts were received. She was of the view it could only have been Joshua who told the accused of her relationship with Mr. Kofkin. PJ had told her the same and that Joshua was most likely at Lovegetty. They drove to the plaza where Lovegetty is located. While driving, she was reading the texts that had been received from the defendant out loud to Ms. Brown. The parking lot was busy. They parked close to Lovegetty and exited the vehicle and walked up the short distance to the front area of Lovegetty. Then she approached Joshua 'by myself.' She was quite upset and wanted to know why he was telling her business to Devonte. They were close to a railing in the arcade entrance. She described it as being in a corner where the door to the arcade opens. She and Joshua were about two feet apart, facing one another. She turned her body slightly to the right to see the accused coming out of the door of the arcade. The accused then came towards her saying nothing. He then spit in her face. The spit landed 'all over my face.' This was immediately followed by a punch to her face. She assumes the punch was with a closed hand, explaining that it all happened so fast. The hit was mostly in her eye, demonstrating the area around her right eye, forehead and cheek. She said the accused has a large hand, big enough to cover her face. She remembers not wanting to fall down and her face going backward. She did not want to fall down, thinking to show the people that she could take a punch and that it was fine. Counsel asked if it hurt and she responded emotionally that 'It really did.' She said that at that time she was about five foot, five inches tall and 'on a good day' her weight would push 110 pounds.

[30] She wanted to try and fix things, thinking it was her fault. So she approached the accused. She remembers shouting to him words to the effect of 'Really, in front of everybody, after everything?' She said the accused asked if she wanted more and then sprinted towards her. At that immediate point she believes she was approximately 40 feet from the accused.

[31] The accused ran to her. To defend herself, she swung at him. She said that was immediately followed by being 'swacked' by the accused's hand, the force of which knocked her to the ground. The accused then grabbed her hair in the area of the back of her head (at that time her hair was a little longer than now, below shoulder length). She could not recall if her hair was down or had been pulled up. She describes being face down with her palms on the ground. The accused would lift her up but not to a standing position. It was more as though she was on her hands and knees. She says she remembers feeling as if 'I was going to die.' She was struggling trying to protect herself and hitting out at the accused. She was asked if any other part of the accused's body touched her during the course of this incident other than his hands. She replied that she did not know as her face was facing the ground and she just wanted to get out of the situation. She was asked if she felt any other blows and responded that she felt the pressure on head the most.

[32] To protect herself, she was trying to grab and cling on to anything she could. In the course of giving an emotional description of the incident, she said she was resisting with her arms out but that the accused overpowered her. She was grabbing up with her hands as her head was facing the floor trying to, as I've said, grab onto anything. Eventually she grabbed onto a t-shirt. At the time she did not know who it was but became aware it was David Henderson's. She would not let go of the t-shirt to the point where a part of it completely ripped off, leaving t-shirt cloth in her hand. In the course of this going on the accused was still dragging her away.

[33] The assault did not end until PJ assisted David Henderson to pull the accused off of her. Asked how she was feeling at this point she said that, while not wanting to swear (in court) but that she felt 'like a piece of shit, being dragged and degraded, like who does that!'

[34] After the incident she went to their car with Ms. Brown.

[35] As to injuries, she said she had scrapes on her forearms from being dragged on the cement. The right arm was the worst with scrapes on the forearm and right hand and palm. Some fingernails on both hands had been ripped off. She believes she had four nails left out of 10. She had acrylic fake nails and her real nail came off with the acrylic ones. As she put it, she had four normal acrylic nails and the remaining had been 'ripped off and were bloodied.' When she was able to clean herself up she noted the back of her head was red and her eye was swollen.

[36] They drove in BB's car to Jonathan's house. The car ride was quite quiet. She did not know how to 'process it or talk about it.' Once at Jonathan's, she says she received two text messages, one from Deshaun and one from Joshua Lai, both asking if she had called the police.

[37] She got inside the door with BB and told Jonathan she needed to clean herself up. She says she washed up, cleaning the bloodied wounds on her hands and forearms and fingernails and 'made myself presentable.' She says her eye was very swollen and tender to touch but she could not see if it was red because of her makeup.

[38] She briefly told Jonathan what happened, making it sound like it wasn't a big deal and that she could deal with it. She did not feel as though she had enough support to call police. She eventually got to her own home, sometime between three and five a.m. On entering her bedroom she saw that her bedroom window was 'covered with eggs.'

[39] Later that summer she did see the accused at a house party near Romfield and Bayview. Ms. Brown was there. Ms. Brown told her the accused apologized for the incident. She did not know the accused would be at the party. She was inside the residence in the basement and at a point went to the outside patio for a smoke. The accused was sitting there in a chair. She was anxious and nervous and thought of leaving but didn't. She could not recall actually speaking to the accused but rather that they just stared at each other.

[40] She says later that summer she was at a party at 'Ronzay's.' Ronzay lived in the same apartment complex as did the accused. She said she had some contact with the accused at the party. They talked and tried to pretend nothing had happened. She said she still had feelings for the accused and felt that the assault was more her fault so she 'tried to reach out to him.' She cannot recall how her contact with the accused that night ended. They walked a mutual friend to Finch Street and then returned to the party but had to leave as the police were there.

[41] Thereafter she described contact with the accused as being very minimal, stopping altogether by December 2012. In fact she does not recall any contact with the accused in the Fall, though she sent a text to him at Christmas stating only 'Merry Christmas' and the respondent sent her back one with the same two words.

[42] She described the accused at trial as being about a head taller than he was at the time of the Lovegetty incident. Nonetheless when they dated the accused could 'very easily' pick her up.

Defence Evidence

Devonte Watson

[43] Mr. Watson is now 22. At the time of his testimony he had been employed for approximately 18 months at Seroyal International Inc., a pharmaceutical company. He has applied to the Business Administration and Bachelor of Commerce and Accounting program at Humber College.

[44] He agrees he and Ms. Johns dated for about one and a half years and broke up in approximately March of 2012. He believes this occurred on an evening in March when he was partying with male friends, one of whom may or may not have been David Henderson. In the course of this he, at some point, was speaking on the phone with Ms. Johns, which conversation ended with him breaking up with her.

[45] They continued to see each other although he was pretty sure in April that "We broke up again." As he put it, she had been "hanging on" and "I ended it officially then."

[46] He says for the first year their relationship was exciting but that he eventually found it becoming boring and he wanted to "expand my options" and see other girls. He says the complainant was also rather possessive and became jealous and upset if he spoke to or befriended other females. After the break-up they continued to be friends. He says they trusted one another and still talked and saw each other. They communicated through Facebook, phone calls, BBM and the like. During this time she came to his residence and they spent the night.

[47] While not going to the movies, they did meet in coffee/pastry shops. Occasionally she would hold his hand. He cannot recall whether or not they continued to kiss in public.

[48] He says the friendship ended in January 2013 when he got a series of text messages that were alarming in which Ms. Johns was "basically spazzing out on me." He had "no idea" why Ms. Johns would send these messages.

[49] At the time he received these messages he had "no idea" why Ms. Johns would send them. These texts were sent in January 2013 and filed as Exhibit 11. Ms. Johns alleges they were sent after she found out that the accused had beat up her boyfriend, Jonathan Kofkin. The accused has been charged in relation to that allegation and his trial on this is pending. The accused denied any such incident occurred with Mr. Kofkin.

[50] In the series of the four text messages comprising Exhibit 11 (the first three of which were timed at 4:57 p.m., 4:58 p.m. and 5:00 p.m. respectively) the complainant says, among other things, that she is "done" with his "childish shit" and swears that she will "shank" him "to death." She says the "shit" he has put her through and the "shit" she has had to "get past" because of him, that she, as a result, "hope[s] you fucking die." She comments that his "Mom doesn't love you", "you're boys lie to you" and that he "won't go anywhere in life other than the bin. You waste." In the final text she asks for her H&M gift card back.

[51] To repeat, he says that up to the point when these texts were received there had been no animosity between him or the complainant since the time of the break-up.

[52] He says he was not aware that Ms. Johns was dating someone until "October, maybe." He was fine with it as he was seeing others and he was pretty sure she had been too. He believed he learned of this dating as a result of a text message he received from Ms. John. Asked if he ever learned who she was dating, she said Ms. John told him in October and that he only knew his name as Jon. He did not even know what Jonathan Kofkin looked like until February 2014 when, through inadvertence, he says he saw the complainant and a gentleman on a VIVA bus that he was riding in. He later saw the same gentleman in court and realized it was Mr. Hofkin.

[53] He says it did not bother him nor did he care that Ms. Johns was dating Hofkin.

[54] He says that back in high school he did "hang out" at Lovegetty but he wouldn't say he did so "too frequently." While they were dating, he and Ms. Johns did attend on occasion at Lovegetty. He denies ever attending at Lovegetty at the same time as Ms. Johns in July of 2012.

[55] He was aware even prior to dating Ms. John that Beverley Brown was Ms. Johns' best friend. He said he barely ever talked to Ms. Brown and in fact did so "maybe once" in the whole time that he dated Ms. Johns. He denied ever arguing with Ms. Brown. He never ran into Ms. Brown after the break-up, nor was he ever at house party that Ms. Brown was at nor did he ever at any time have a conversation with Ms. Brown in the course of which he apologized for his conduct toward Ms. Johns.

[56] In describing his relationship with Ms. Johns, he says it was "definitely not" violent. He denied at any time even engaging in physical horseplay with her.

David Henderson

[57] Mr. Henderson is now 21 and at the time of testimony was employed as a forklift operator for a business known as Dorox. During high school, he and Mr. Watson were "pretty good" friends. He says he continues to see the accused once in a while.

[58] While they were not good friends, he says he did know Victoria Johns and they did occasionally talk to each other.

[59] He says the accused and Ms. Johns did date for a while in high school. During this period they were "inseparable" and "always lovey-dovey" – kissing each other and being very affectionate. While she and Mr. Watson argued occasionally like anyone else, he says he never witnessed any physical fighting between them.

[60] Lovegetty was very close to their common high school (St. Roberts Catholic High School in Richmond Hill). Accordingly he and his friends went to Lovegetty many times. He would also go there with Mr. Watson but it was mostly with his other high school friends. As he put it, "It was a big hangout spot for lots of kids from St. Roberts."

[61] He was asked if he ever saw Mr. Watson assault Ms. Johns at Lovegetty. He replied, "I don't ever recall seeing that."

[62] He was then asked if he specifically ever intervened in a physical assault that Mr. Watson was perpetrating on Ms. Johns at Lovegetty, to which he replied, "To my knowledge no."

[63] Next he was asked if he ever intervened in a fight of this kind between Mr. Watson and Ms. Johns, in the course of which his shirt got ripped off. He replied, "Not to my knowledge." Mr. Singh asked, "Okay, and if something like would have happened do you think you'd remember it?" He answered, "Well if someone ripped my shirt I think I would remember that."

[64] He was close friends with Beverley Brown in Grade 9 but they stopped talking after that. He did not know why.

[65] When asked how he found out about the alleged Lovegetty incident he said he spoke to the police but was not aware the accused got charged until he received a subpoena to testify at the trial. He was asked if he was sure the police spoke to him about Lovegetty or was it about the hotel incident and he said he was "pretty sure" the police asked him if he ever remembered being there (at Lovegetty). He said the first time the police called him, he remembers being asked if he recalls anything about an incident between Ms. Johns and Mr. Watson at Lovegetty and he said he did not recall that and that he told them he did not want to be called anymore about it.

[66] In re-examination he was asked if any of his friends asked him questions to the effect of "Man, did you see Devonte beat the crap out of Victoria Johns?" He replied, "Not that I recall, no."

Onus of Proof

[67] The burden of proof rests upon the Crown to prove the offence beyond a reasonable doubt. It is a substantial onus that never shifts to the accused and is to be applied in accordance with the very helpful instructions of the Supreme Court of Canada in the well-known decision of R. v. W.(D.), [1991] 1 S.C.R. 455, 63 C.C.C. (3d) 397. A three-pronged approach is outlined in W.(D.) that can be summarized as follows in relation to this case:

1. If the defence evidence is believed in the context of the testimony led in the case then Mr. Watson is to be found not guilty;

2. Secondly, if the court concludes, for reasons expressed, that in the context of the evidence led, the defence evidence is not believed but it nonetheless has the result of raising a reasonable doubt, then Mr. Watson is to be found not guilty.

3. However, should the court conclude for reasons expressed that the defence evidence is not believed, nor does it have the effect of raising a reasonable doubt, then the court is required to consider whether the balance of the evidence is sufficiently credible and reliable to make out the offence beyond a reasonable doubt. With this so-called third prong of W.(D.) the court must be careful not to draw any adverse inference against the accused as a result of the rejection of the salient features of the defence evidence, including the evidence of the accused himself.

[68] With these principles in mind, I now turn to an analysis of the evidence. I propose to consider first the defence evidence and, in doing so, I should not be taken to have reversed the onus of proof which, as I stated, rests on the Crown and never shifts.

Analysis

Evidence of Mr. Watson

[69] I first consider the evidence of Mr. Watson. His defence of course is a basic denial; it never happened and the allegations are a product of a fabrication and collusion of Ms. Johns and Ms. Brown. In those cases where the defence is a denial there is generally little opportunity in the defence evidence itself because of the very nature of such a defence which would permit the court to engage in a detailed objective analysis of the denial. Perhaps, to put it more crudely, what can one say where the defence is to the effect that it never happened, that's it, that's all. However, the court must not draw any adverse inference against the accused because of the potential analytical difficulties such a defence causes.

[70] To that end, the Crown acknowledged that while Mr. Singh in his submissions conceded that Beverley Brown was the main problem for the defence, the defendant in his evidence is the main problem for the Crown. To that end the Crown submitted that while the accused was for the most part an articulate witness, his evidence is a basic denial that leaves little for cross-examination or for the court to point to in terms of credibility and reliability assessment. While this is true (although Mr. Watson did testify at some length on collateral matters), as I have already stated, Mr. Watson is certainly not in any way to be penalized for this circumstance in the court's application of the W.(D.) analysis and the application of the onus of proof beyond a reasonable which, as I have stated several times, rests on the Crown throughout.

[71] Bearing this in mind, I still have several observations of the accused's evidence that bear comment on.

[72] He was at some pains to distance himself from any physical contact with the complainant, however innocent. To that end it was his and the complainant's evidence that the two of them were involved in a serious and sexually intimate relationship that lasted approximately 18 months. He maintained that not only was there an absence of violence in their relationship but there was not even a single occasion where they engaged in friendly, consensual horseplay or similar kind of activity. I find that assertion to be incredible.

[73] Ms. Johns was cross-examined at length as to when the accused was made aware that she was dating or seeing Jonathan Kofkin. In-chief Mr. Watson was asked as to when he became aware Ms. Johns was dating someone else. In his reply the accused hesitated as if having difficulty and was trying to think back to recollect. Mr. Singh, recognizing the accused appeared to be struggling with an answer, interjected "To the best of your ability." Mr. Watson then stated, "October, maybe she had told me." He was asked, "Okay, of 2012?" He replied, "Uh, yes, I believe so." Asked how he learned of it, he said, again with some hesitation, that he "thinks" it was through a text message from Ms. Johns. Soon after he was asked if he ever learned who it was that Ms. Johns was dating. Notwithstanding the hesitancy and equivocation in his prior answers, to this question he responded immediately and without any equivocating that she told him in October. Asked who she said she was seeing, he replied "I only knew the first name. It was Jon."

[74] While perhaps a minor point, I noted at the time that within a minute or so he went from suggesting with considerable equivocation and uncertainty that it was "maybe October" and "thinking" it was by a text to responding immediately, without any equivocation, that "Yes, she had told me in October." I find this somewhat concerning.

[75] Finally, it is the substance of the accused's evidence that they broke up in March 2012 and then again in April 2012 for the final time. After the break-up he said that they remained friends, still talked and communicated on occasion, would meet up from time to time for a coffee and the like and she even, on one occasion, came to his residence and stayed overnight. Indeed, this ongoing communication without any overt expressions of animosity between them is generally borne out by the various electronic messages exchanged between them that were filed as exhibits.

[76] Yet his evidence is that this good, generally friendly and positive on-going relationship on one day in January 2013 does a dramatic 180-degree turn when she sends in immediate succession a series of messages (Exhibit 11) stating inter alia that she is done with his "childish shit", swearing that she's "actually" going to "shank" him to death, then referring to the "shit" he's put her through and that she's had to get past while expressing the hope "you fucking die" followed by references that his mom doesn't love him and "your boys" lied to you and that the only place he's going to go in life is "the bin."

[77] The accused has no evidentiary obligation to explain what the complainant is thinking. Nonetheless, the suggestion that their relationship went from being good and friendly to one of animosity in the extreme, virtually overnight and for no reason I find concerning.

Evidence of David Henderson

[78] I turn now to consider Mr. Henderson's evidence in the context of all the evidence in this case.

[79] Clearly the complainant and Ms. Brown have described a nasty assault by the accused upon Ms. Johns. Ms. Brown describes the accused as spitting and punching Ms. Johns and in the second altercation, again striking her, pulling her hair and kicking her, while Ms. Johns is in a curled position on the asphalt surface struggling against the accused in attempts to protect herself.

[80] Ms. Brown describes Mr. Henderson intervening to protect Ms. Johns. Ms. Johns gave similar evidence, although at the immediate time she was unaware it was Mr. Henderson. Ms. Brown describes Mr. Henderson as intervening, along with Ms. Brown's boyfriend, PJ. Mr. Henderson and PJ grabbed the accused in an effort to pull him off Ms. Johns, efforts the accused resists. In this melee, Ms. Johns in her struggles latches on to Mr. Henderson's shirt with such force she rips part or all of it off Mr. Henderson. Eventually, after about a minute, they are able to separate the accused from Ms. Johns, while the accused continues to struggle against them, yelling it takes four guys to hold him back. (By then Deshaun had intervened and a fourth person that Ms. Brown could not identify.)

[81] In my view, common sense strongly suggests that if this incident had in fact occurred it would be an unforgettable one for the participants. This would include Mr. Henderson who is described as playing a primary interventionist role to save Ms. Johns from serious injury or worse, to the point where part, or all, of his shirt was ripped off.

[82] Such an encounter would have been memorable. If such an incident had in fact never occurred one would reasonably expect a clear and unequivocal denial. Yet Mr. Henderson's responses, and the manner of them, struck me as surprisingly equivocal.

[83] As I summarized in my review of his evidence, when it was first put to him in-chief he said, "I don't ever recall seeing that." When next asked in-chief if he ever intervened in an assault being perpetrated by Mr. Watson on Ms. Johns outside Lovegetty, he replied in similar fashion by stating, "To my knowledge no." He was then asked if he ever intervened in a fight between Mr. Watson and Ms. Johns in which his shirt got ripped off. He gave the same response of, "Not to my knowledge."

[84] The equivocal nature of these responses was not lost on Mr. Singh, who then followed up with the question, "Okay and if something like would have happened do you think you'd remember it?" His response, "Well if someone ripped my shirt I think I would remember that." These answers and the manner of their delivery failed to constitute a clear declaration by the witness that in no circumstances did such an assault occur.

[85] Mr. Singh took up the subject again in re-examination, asking Mr. Henderson if any of his friends asked him questions to the effect, "Man, did you see Devonte Watson beat the crap out of Victoria Johns?" The response again was similar, when he stated, "Not that I recall, no."

[86] I should add, in summarizing this evidence of Mr. Henderson, that in giving his answer to the first two questions he was asked by Mr. Singh that specifically pertained to the alleged assault, Mr. Henderson appeared to gulp noticeably during his reply to each question. I distinctly recall this and made a note of it at the time. In stating this I am keenly aware of repeated reminders from Courts of Appeal that relying on witness demeanour can be a dangerous exercise and should only be done with great caution. This admonition is certainly justified given that people are all different and can respond differently when under pressure in the usual atmosphere of a courtroom.

[87] Yet, for me, the main point remains, the allegations are serious but straightforward. A forthright response that such a thing never happened could reasonably be expected. Yet, despite repeated opportunities to do so, Mr. Henderson's evidence never got beyond the hesitant and the equivocal.

[88] I reject the salient features of his evidence.

[89] For these reasons, and the ones to follow, I conclude that the defence evidence as a whole is not believed, nor does it have the effect in the circumstances of all the evidence in this case of raising a reasonable doubt.

Evidence of Ms. Johns

[90] The defence position is that on matters raised in cross-examination, Ms. Johns proved to be a manifestly unreliable and incredible witness and that it would clearly be improper for the court to return a guilty verdict that rests on her evidence. The Crown generally agreed while arguing that while reasonable concerns were raised in cross-examination as to Ms. Johns' reliability, that the same cannot be said as to the testimony of Ms. Brown. Ms. Thompson submits that when considering Ms. Brown's evidence in conjunction with that of Ms. Johns as to the specific Lovegetty incident, the court should not be left with a reasonable doubt and a guilty verdict should be returned. I will consider Ms. Brown's evidence later in these reasons.

[91] I agree with the general proposition that were the Crown's case to rest solely on Ms. Johns' evidence an acquittal would be the result. Sufficient matters were raised in cross-examination that would lead to this conclusion. Some of these were troubling, others not so much. I will endeavour to summarize these concerns. The list below is not necessarily exhaustive. If I fail to mention any item, it does not necessarily mean I have forgotten to consider it.

[92] First, it is pointed out that Ms. Johns says she ended the relationship. However, the accused says he did, first in March and in a more clear fashion in April. It is said the communication in Exhibit 1 bears this out.

[93] In my view, the evidence is more nuanced than that. Her evidence in-chief is that "I recall" ending it on the phone in the middle of the night. She then said, "I take responsibility for ending it."

[94] In the Exhibit 1 communication of April 15, 2012, Ms. Johns tells him to "Get rid of it." There is little dispute that this is a reference to their Facebook status as still showing them to be in a relationship. She goes on to state, "Because not only [a]re you done but I'm done. You're single. Dipsizzle." She then adds, "Be mature about it, but you can take me off your relationship status."

[95] The accused responds to this communication by pointing out you have a Facebook account, what's stopping you from doing the same thing. She responds, thanking him for breaking up with her and that she had written up a few things.

[96] In short, their communications suggest that a break-up of some fashion had occurred the night before but that there appeared to be some reluctance by both to put it on their Facebook accounts.

[97] It is further argued that she testified that their contact post Lovegetty was minimal. The same included their mutual evidence that she attended the common room of the accused's apartment complex for a party for Ronzay, who was known to both of them and who was celebrating a recent release of his music. Her evidence in substance is that it was awkward, they did speak and she still had feelings for him. She said, as I've stated, that their contact thereafter was minimal. She says they had no contact in the fall until she sent him a Merry Christmas message at Christmas time. (See Exhibit 11.) In-chief she said the accused post-Lovegetty communication to her contained no threats. In cross-examination she agreed with the suggestion that they were "short but not sweet."

[98] The defence points out that in fact they did communicate in the fall, as can be seen in the exchange of texts captured in Exhibit 3 and Exhibit 4, bearing dates of October 12, 2012 and October 16, 2012 respectively. The defence also refers to other communications that they had post-Lovegetty, the nature of which it is submitted are inconsistent with the complainant having been the victim of a severe beating of the accused. I propose to summarize all of these in the order that they were made exhibits:

1. On October 12, 2012, there was an exchange of messages initiated by the complainant. She is near the defendant's residence and the two agree to meet for a cigarette. The meeting does not occur as the complainant had arranged for a third party to pick her up. She suggests "Another time?" and the accused responds, "Nah there's no point." (Exhibit 3)

2. Four days later she texts the accused advising she "whylled out on Jon in some serious Jamaican terminology" and that she "still got that fucking D in me." She would "Love to update [you] on tings." Later in the day she sends the final message asking if she can call just to talk, that she "need[s] advice." (Exhibit 4) The defendant does not respond.

3. On August 3, 2012, she sends Mr. Watson a text asking what's going on (wagwan) at 9:20 p.m. At 9:53 p.m. she texts him a smiley-face. The accused does not respond.

4. There was a further exchange of communication on the 2012 Civic Holiday weekend, specifically August 5th and 6th (Exhibit 2). Initially the same involved the complainant contacting York University with respect to issues of course selection for her pending first year there. The complainant says she's "craving "shisha."" The accused suggests if she reaches Finch (which is near his residence) they could go for some. The complainant responded "perhaps" and then changed the topic, asking if he had talked to "kat."

5. Finally there is an exchange of communication concerning "Matteo" and his egging her house (I will address this shortly). In the course of this communication the accused says to her to clear his name "with your famzz i like emm i dont wanna be hatedddd." In her replies she does not respond to this request.

6. The last communications that occurred in 2012 that she was confronted with in cross-examination were messages exchanged just before Christmas. Consistent with her evidence in-chief, she did text him "Merry Christmas" but this was the last message in a series. It began at 5:44 p.m. with her inquiry of Mr. Watson's plans for Christmas. Mr. Watson does not respond. At 12:48 a.m. she texts asking "Did you wanna talk?" Again Mr. Watson does not respond. At 1:42 a.m. she texts that she's persistent "because I needed to talk to you about something." She adds, "But it only proves to me that I can't talk to you anymore (presumably because to this point he has not responded). No matter how hurt you got because of this, just know that I was hurt more." At 3:08 a.m. she messages further "Because I'm sure my suffering has brought you great bliss." Eventually the accused responded that he would see her and requesting her to "pick a day." He also assures her she can call him at any time and she replies she'd just text him "for now."

[99] All of these communications were put to the complainant in a lengthy and rigorous cross-examination. At various times she explained them as having been made because she still had feelings for him; that she just wanted to let the accused know she was tough and could take the Lovegetty incident and that it was not going to change her; or that it was quite some time ago and she did not remember making them; that part of her never wanted to speak to him and that part of her felt guilty it happened and that she did want to speak to him.

[100] I agree with the submission that these communications are of concern. They are more frequent than she first testified to. It involves subjects in her personal life such as her schooling and the nature of her relationship with "Jon" that one might think would be unlikely if the assault she alleges had occurred and that she continued to be in fear of him.

[101] However, the weight I give to the same is tempered by several other observations. In several of the conversations, while they discuss meeting up, she eventually deflects this topic and does not pursue it in terms of actually arranging a meeting. In the Christmas conversation he invites her to call him at any time but she wants to keep it on the level of messaging for now. Also she says she is persistent because she needed to talk to him because though she may have hurt him, he had hurt her more. Finally, while these communications are more frequent than she stated in-chief, they can still only be described as infrequent and occasional with respect to electronic messaging between them post-Lovegetty.

[102] More troubling was her evidence in examination in-chief that on returning home after the Lovegetty incident she discovered her "entire" bedroom window had been egged. In cross-examination she said she suspected the accused given the proximity of the egging to the assault. She could think of no one else who would do that. She was asked if she knew a "Matteo". She asked for his last name. Mr. Singh repeated the question without proffering a surname. She then said she knew a Matteo who dated Katrina. She was asked if she ever talked to Matteo with respect to the accused having egged her house. She replied, "I don't know." She confirmed her house has only been egged this one time. She was asked if she ever came to believe Matteo egged her house. She replied evasively that "I don't know, I can't recall." She was asked if she ever suspected Matteo of doing this. She replied she assumed it was Devonte. She was then asked, "So you never suggested to anyone that it was Matteo who egged your house?" She replied, coyly, "I don't know."

[103] Following the lunch break it was suggested to her that in a Facebook exchange with the accused, she suggested to him it was Matteo who did it. She replied, "I don't recall" but she believed that was incorrect. It was put to her if she was saying that in fact there was no such exchange. Again she stated, evasively, "I don't recall that." Then Mr. Singh suggested she had no reason to assume Matteo did it. Yet again she gave the evasive "I don't know, I don't recall" answer.

[104] The Facebook exchange of August 6, 2012, being Exhibit 2, was then put to her. In it she advises the accused that "Matteo just msg'd me." Mr. Watson then asked, "what did he say" and suggested to Ms. Johns that "hes lonely talk to him." Ms. Johns response, in capitalized letters, "LMFAO (laughing my fucking ass off) AFTER THE WHITE TRASH EGGED MY HOUSE YOU STUPID? THE THINGS ID SAY..."

[105] She gave varying answers as to why she said that in this recorded exchange: that she did not recall when Matteo did that; that these were her assumptions that had never been proved; that she had no reason to suspect Matteo as she had minimal contact with him; she did not know why she suspected Matteo, that it was a long time ago; she did not know why she said that but felt as if it was not her talking there (on the Facebook message); that Matteo was friends with the accused and if Matteo did it, it was pursuant to instructions from the accused, although she would not define Matteo as a close friend of the accused; that the egging was not so much an issue in her mind; and that it was an example of her being hard and tough in the aftermath of the assault.

[106] Clearly the complainant was throughout this exchange on this topic being coy and evasive, while scrambling for some kind of an answer that made some sense. Ultimately she failed.

[107] I have considered this and the other reservations put to me with respect to her credibility and reliability very seriously. However her evidence is not without some redeeming features. I consider some of these to be the following:

1. The headway made against her in cross-examination was with respect to matters collateral to the alleged assault at Lovegetty;

2. Her version of the incident in which there was an initial altercation near the entrance door, followed by an even more serious one some distance away was detailed and unshaken on cross-examination;

3. It is clear from the evidence of Beverley Brown that subsequent to the alleged assault, Ms. Johns rarely discussed it, did not want to speak in detail of it, deflecting conversations to another topic and was not willing to report it to the police;

4. The electronic messages filed as exhibits on cross-examination have been reviewed in detail in this judgment and, in my view, are consistent with a conflicted individual who still has a desire at some level to communicate and interact with the accused, yet remains hesitant to do so;

5. It is to be remembered that the assault allegation is one where the purported beating occurred in a public place before numerous witnesses, many of whom were school friends or acquaintances of the accused. This included, on the evidence of Ms. Johns, her ripping the shirt of Mr. Henderson during the struggle and that Patrick Borgia (PJ) also helped pull the accused off of her. Later the Crown incorrectly suggested she had said it was Joshua Lai who had assisted in intervening and the complainant immediately corrected her and said it was PJ.

[108] Ms. Brown's evidence was consistent with this, while also stating that Deshaun helped along with a fourth person, the identity of whom she did not know to hold the accused back who was still trying to get at the complainant while the accused was screaming, "It takes four guys to hold me back."

[109] In my view, the multiplicity of eye-witnesses, including the involvement of up to four individuals to remove and restrain the accused, during which Mr. Henderson's shirt was torn, is logically inconsistent with the suggestion the allegations are fabricated.

Evidence of Ms. Brown

[110] I turn now to consider Ms. Brown's evidence. Mr. Singh frankly submitted that she presented generally as a frank and forthright, credible and reliable witness. This was certainly my impression as well. Mr. Singh does argue that nonetheless there remain concerns with respect to her evidence when compared to that of Ms. Johns that should at the end of the day leave the court with a reasonable doubt.

[111] To that end, Mr. Singh submits that I can reject her evidence as being in substance a lie given to protect her friend and to that end Ms. Brown should be considered in a fashion similar to that of Mr. Henderson. I disagree. I have already commented on Mr. Henderson's evidence and the view I take of it. The equivocation that was pervasive in Mr. Henderson's testimony was absent from Ms. Brown's evidence.

[112] Mr. Singh further points out that Ms. Johns testified of receiving on July 5th numerous texts from the accused concerning his knowledge of her having been with "the Russian" (Jonathan Kofkin) and threatening her and calling her names. On the other hand, Ms. Brown testifies that when the two of them were in her car, Ms. Johns got a call on her cell phone from a guy screaming at her, something to the effect of he knew she was fucking a new guy and was calling her a whore. She could hear the screams and saw the name Devonte on the phone. When asked in cross-examination if Ms. Johns had showed her texts that she had received from Devonte earlier in the day, she could not recall. She did agree that if there were such texts that included a threat to kill she would remember that. In contrast, Ms. Johns makes no mention of receiving such a phone call when the two were in the car.

[113] However, a detailed review of their evidence makes the scenario as described by Mr. Singh less clear.

[114] Initially in-chief Ms. Johns says that when she first met up with Ms. Brown that evening that she had earlier that day received copious texts from the accused that were "not friendly, very not friendly." Ms. Johns was then asked if she ever spoke to the accused that evening prior to going to Lovegetty. She didn't know and could not recall. She said she was not able to review the video of her police statement for the purpose of refreshing her memory. Court was adjourned and resumed the next day to permit her an opportunity to do so. She reviewed her interview in the interim and eventually gave the evidence concerning texts received from the accused. When again asked if she got any further communication from the accused before going to Lovegetty, she said she did not recall. She also said the texts were received when they were in the car in her driveway planning to go to Mr. Kofkins.

[115] I observe that Ms. Johns' evidence is based on her refreshing herself from a statement that was given to the police over six months after the event. In her evidence she does not say that no call was received from the accused but more simply that she did not recall if one was or not. And she first said copious texts were received earlier in the day and the next day in court she says the texts were received while they were together in the car. I find Ms. Brown's evidence is more reliable. She recalls the screams over the phone and looking at it to see Devonte's name. In any event, I view this as a peripheral matter in which the substance of their evidence is similar while it differs as to detail. In my view this is more consistent with honest attempts to recall specific details where recollections differ than something consistent with collusion and fabrication.

[116] Mr. Singh submits their evidence differs as to the first sighting of the accused at Lovegetty. Ms. Brown says she saw the accused exit Lovegetty as soon as they pulled up and said to Ms. Johns that Devonte is here but that the complainant still wanted to talk to Joshua Lai and confronted him, shortly after which the accused spat and punched Ms. Johns, notwithstanding Deshaun's effort to intervene, to talk the accused out of confronting Ms. Johns. Mr. Singh points out that Ms. Johns says that when she confronted Mr. Lai, she turned her body to the right to see the accused exiting the arcade and coming toward her.

[117] In considering this submission, one needs to put it all into context. They both had seen Mr. Lai. On parking, Ms. Johns, determined to confront Mr. Lai, immediately exits the vehicle and goes to him. Ms. Brown also exits the vehicle. By the time she reaches the area of Mr. Lai and Ms. Johns (a matter of probably very brief seconds), the accused exits the arcade door and walks the very few feet toward Ms. Johns. Both witnesses have the accused coming out from the arcade. The whole scene developed from innocuous to physical in what must have been, as I have stated, a few very brief seconds. The vantage point of each witness at certain times was different and it is not clear all heard or absorbed what was said.

[118] As with the prior submission, I view these differences in detail to what is otherwise a generally consistent version to be an indicator of credibility and reliability as opposed to one of collusion and fabrication. They are minor differences reflective of what can be expected to occur from the passage of time, where witnesses are in different positions at the time and honestly recollect things in minor but different ways with respect to an incident that developed very quickly.

[119] Again in my view, much the same can be said for the other matters raised ably by Mr. Singh as to whether at any subsequent point the accused was walking or running or something in between these. It is also to be remembered that Ms. Brown says she was also engaged with others at the time and accordingly was "looking back and forth" and was not again directly focused on the complainant and the accused until the point she says she heard the complainant scream. Similarly, with respect to estimates of distances between the first and second altercation, Ms. Brown's substantive evidence is that this altercation occurred near the corner of the building. Estimates of distance, given years later, concerning a traumatic incident can be notoriously unreliable.

[120] Finally, Mr. Singh takes issue with Ms. Brown's evidence that in the course of the second altercation the accused she says stomped down with his foot on the complainant on multiple occasions. The complainant in her evidence made no mention of this occurring.

[121] Again in my view, this submission needs to be considered in its context. Ms. Brown is standing some distance away with an unobstructed view. Ms. Johns' position is very different. She has been knocked to the ground. She is then being held by the hair and being pulled upward, but not to a standing position, while being dragged a little and then this action would repeat itself. During this she is thinking "I'm going to die" and she is struggling with "most likely" her arms and legs to defend herself and get off the ground. In the course of this she was able to latch onto Mr. Henderson's t-shirt, ripping it in the process. When asked if any other part of the accused's body contacted her apart from his hands she said she didn't know as her face was facing the ground.

[122] In substance then the complainant describes what from her view was a chaotic and vocal situation where she knew the accused was applying force to her such that she was being propelled to the ground, then was being picked up by the hair while she is face down and thrashing about to defend herself.

[123] And clearly, for Ms. Brown, one of the hallmark features of the occurrence was the stomping action by Mr. Watson.

[124] I find, in these circumstances, the difference in their evidence is explained from their very differing positions in circumstances that each was in during the assault. In my view also, again, this variation in evidence is consistent with what one might well expect given the very different circumstances each was then in and is inconsistent with the suggestion of collusion and fabrication.

[125] Ms. Brown testified in a forthright, credible and compelling fashion. Her version was detailed. Some of those details added to its reliability. For example, on the second altercation she says four intervened to pull the accused off and hold him back. She names three of them; the fourth being a person she did not know. While this occurred (as I stated) the accused kept screaming at her "It takes four guys to hold me back." Details such as this I find inconsistent with fabrication.

[126] On another occasion she testified as to the second altercation as it being a drag, stomp, drag, stomp sequence. Mr. Singh asked by way of clarification that the accused would bend his leg and then stomp down on Ms. Johns. She replied that that was correct, while volunteering that at least the accused was trying to, though Ms. Johns was curling up on her side in a fetal position in response to the blows. Again, evidence of that content and circumstance is in my view inconsistent with collusion and fabrication.

[127] Finally, as I stated in paragraph 109, the fact that the version of both Ms. Brown and Ms. Johns has so many eyewitnesses present, some of whom were good friends of Mr. Watson, is a circumstance logically inconsistent with collusion and fabrication.

[128] The evidence of Ms. Brown is substantively corroborative of the complainant's evidence on the assault count. The points raised by Mr. Singh concerning Ms. Brown's evidence I conclude do not, when considered singularly and collectively, cause me to be in a reasonable doubt with respect to the third prong of W.(D.).

[129] I accept Ms. Brown's evidence.

[130] For these reasons, Mr. Watson is found guilty on this count.

Released: February 29, 2016

Signed: "Justice R.A. Minard"