Court File and Parties

Date: 2016-07-25

Court File No.: Brampton 15-12324

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Delonie Green

Before: Justice P.A. Schreck

Heard on: May 11-12, 2016

Reasons for Judgment

Counsel:

• A. Fedak-Tarnopolsky – counsel for the Crown
• M. Owoh – counsel for the accused

SCHRECK J.:

[1] Introduction

In the early morning hours of July 25, 2015, several people became involved in an altercation outside the Island Style Bar in Brampton. Two people were stabbed. The accused, Delonie Green, is alleged to have been the person who stabbed them and is charged with two counts of aggravated assault.

[2] Issues

There is no issue that the same person stabbed both victims and that their injuries constitute wounding as that term is used in s. 268(1) of the Criminal Code. There is no issue that several people were at the Island Style Bar that night and that Mr. Green was among them. The sole issue is whether the Crown has proven beyond a reasonable doubt that Mr. Green was the person who stabbed the victims. No witness testified to seeing Mr. Green commit the offences. The Crown's case relies primarily on security videos of the events, although there is other circumstantial evidence.

I. EVIDENCE

A. The Location

[3]

The Island Style Bar is located in a plaza on The Gore Road in Brampton. There is a parking lot in front of the door to the bar and cars can pull up and park directly in front of it. In the early morning hours of July 25, 2015, a number of people were milling about outside the front door of the bar. A few cars were parked in the parking lot. A security camera was pointed towards the area directly in front of the bar. A second camera was pointed towards an adjacent area of the parking lot and the front of the plaza.

B. The Witnesses

(i) Nicole Ali

[4]

Nicole Ali is the owner of the bar and was working at the door that night. She is acquainted with Mr. Green and confirmed that he was present.

[5]

As described below, Ms. Ali is seen on the security video struggling with the person who stabbed the victims, apparently in an attempt to restrain him. The assailant's shirt is torn during the struggle. Although Ms. Ali identified herself on the video, she purported to be unable to recognize the person she had struggled with.

[6]

According to Ms. Ali, when the police first came to the bar following the stabbing, there were about 25 to 28 people there. The police did not interview anybody at that time. The police returned later, at which time they did conduct interviews. There were about seven to 10 people present by then.

(ii) Troy Carter

[7]

Troy Carter, a friend of Mr. Green's, was also present that night. He was interviewed by the police, following which he left the area together with Mr. Green. Mr. Carter was shown the video but claimed that he was unable to recognize anybody in it, including himself.

(iii) The Victims

[8]

Karunkaran Ponnuthurai testified that he went to the bar with some friends, including Pragash Thanigasalam, the second victim. After consuming a few beers, he and his friends left the bar and were standing outside when a fight broke out. When asked whether any of his group was involved in the fight, he replied "not really". During the altercation, Mr. Ponnuthurai was stabbed three times with a knife in the arm and upper torso, causing a collapsed lung. He did not know the person who stabbed him nor why he had done so. Mr. Ponnuthurai was able to give only a very general description of the person who stabbed him. He was "dark skinned", black, had a "built" physique, braided hair, wearing blue pants and a white T-shirt, and about 5'8" or 5'9" tall.[1]

[9]

Mr. Thanigasalam testified that he saw Mr. Ponnuthurai get stabbed. When he attempted to go to his aid, he was also stabbed. He was unable to give a description of his assailant other than to say that he was a black male wearing a white T-shirt.

(iv) Police Officers

[10]

Several police officers attended at the scene. Two of them, Cst. Warren and Cst. Fernandes, interacted with Mr. Green. Cst. Warren noted his name at some time after her arrival on scene at 2:17 a.m. and Cst. Fernandes took a statement from him at 3:49 a.m.[2] Neither noted his description.

[11]

The officers were not able to say with precision how many people were outside the bar at the time they attended. Cst. Sibanolipava, who arrived on scene at 3:35 a.m. and took a statement from Mr. Carter at 3:50 a.m., estimated that there were about seven or eight people present, although he made no specific notation of this. Cst. Warren, who arrived at 2:17 a.m., was unable to agree or disagree with the suggestion that there were 20 people outside the bar at the time she was there. Cst. Fernandes, who took a statement from Mr. Green at 3:49 a.m., could not say how many people were present, only that there were more than four.

C. Video

(i) Security Video

[12]

Camera 8 points at the front of the bar. At about 2:10 a.m., various people, including Ms. Ali, are milling about outside the front door of the bar. An altercation involving several people starts outside the front door of the bar. A number of individuals chase each other. Some individuals are seen restraining others. Shortly thereafter, everybody appears to calm down.

[13]

Soon afterwards, a black male wearing blue jeans, white shoes and a white T-shirt comes out of the bar. His jeans are "distressed" in the front, with patches along the legs that are lighter than the rest of the garment. His hair appears to be braided.

[14]

The man in the white T-shirt is approached by another person who appears to say something to him. He reacts by lunging towards him and chasing him behind a car. Several people follow. At around 2:13 a.m., the man in the white T-shirt is seen engaging in a stabbing motion behind the car and I infer that it is at this point that he stabs Mr. Ponnuthurai.

[15]

Ms. Ali then pushes the man in the white T-shirt back towards the door of the bar. He begins to pull away from her, so she grabs his shirt, which tears as a result. The man lunges forward towards the area behind the car, dragging Ms. Ali behind him and causing her to fall. Although it is not clear, it appears that the man is wearing two shirts, one of which came off behind the car.

[16]

The man in the white T-shirt then chases Mr. Thanigasalam, stabbing him in the back at 2:14. By this point, he is wearing the torn remains of a white shirt. Mr. Thanigasalam runs away, and the man then returns to the front of the bar. He enters the bar, removing the remains of his shirt as he does so.

[17]

At around 2:20 a.m., the car behind which Mr. Ponnuthurai was stabbed pulls away, revealing a white article of clothing on the ground behind it. Shortly thereafter, a black male wearing a grey T-shirt and blue jeans exits the bar. He picks up the article of white clothing and carries it while he walks around the parking lot. He walks up and down the parking lot several times. At one point, he looks underneath a car. Ms. Ali is also seen walking around the parking lot, sometimes together with the man with the grey T-shirt. Another black male, whom the Crown alleges is Mr. Carter, is also seen talking to the man with the grey T-shirt.

[18]

The man in the grey T-shirt is wearing white shoes. At two points, he walks fairly close to camera 9, which points to an area of the plaza and parking lot adjacent to the area where the bar is. He is seen wearing "distressed" jeans. A spot which is especially distressed, or perhaps a hole, can be seen on the upper portion of his left leg. The man is wearing his hair in tight braids.

(ii) Video at the Police Station

[19]

On October 8, 2015, about two and a half months after the stabbing, Mr. Green turned himself into the police. Video of him in an interview room being questioned by the police[3] and of him in the booking area was tendered at trial. Mr. Green is clearly seen in the video. He is a black male. His hair appears to be braided, although with several portions sticking out at the back of his head. He is wearing "distressed" jeans with an especially distressed spot on the upper left leg.

II. ANALYSIS

A. The Approach to Video Evidence

[20]

As stated earlier, no witness who testified identified the stabber. As a result, the Crown's case relies on the video evidence, which the Crown submits is supported by other circumstantial evidence. I am entitled to view the video evidence and draw my own conclusions. In doing so, I must take the approach outlined by the Supreme Court of Canada in R. v. Nikolovski, [1996] 3 S.C.R. 119 (at paras. 29-30):

The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

B. The Video in This Case

[21]

Although the video is of high quality, the stabbing, which is caught on Camera 8, takes place at a considerable distance from the camera. The face of the stabber is not seen with sufficient clarity to be able to identify him or compare him to Mr. Green. It certainly could be Mr. Green in that his description is consistent with that of the person in the white T-shirt.

[22]

Camera 9 has a much better view of the person wearing the grey T-shirt. I am satisfied that the stabber and the man later seen wearing a grey T-shirt are the same person. They are both wearing white shoes, both have hair in braids, both are wearing distressed jeans and both are wearing a black belt, one end of which can be seen looped at the middle of his side. Most importantly, the person in the grey T-shirt picks up the white shirt which the stabber had dropped earlier. In my view, it would be most unlikely that anybody other than the owner of a shirt that had been discarded on the ground would pick it up.

[23]

While the stabber faces Camera 9 momentarily, he does so while he is some distance away. On two occasions, he walks fairly close to the camera and it is on these occasions that the view of him is clearest. However, in both his face is seen at an angle from above.

[24]

I have reviewed the security video, as well as the video of Mr. Green when he was at the police station, numerous times. I have also considered Mr. Green's appearance at trial, although the video at the police station was more proximate in time to the stabbing. The person in the grey T-shirt appears similar to Mr. Green in many respects. They are both black males, apparently of similar age, and both have their hair in braids. However, Mr. Green's braids in the interview video stick out at the back while the braids in the security video do not. The person in the grey T-shirt has braids in tight rows, while Mr. Green's braids at the police station appear to be in a "zigzag" pattern. As well, Mr. Green's face looks to me to be fuller than that of the person wearing the grey T-shirt. All of these differences may have explanations. Mr. Green could have changed his hair, he could have gained weight, or the camera angle in the parking lot may have made his face look less full than it was. However, I have heard no evidence on these matters and it would be improper for me to speculate. Unfortunately, the police officers who interacted with Mr. Green on the night of the stabbing did not note his appearance. I am not suggesting that they are in any way at fault, as they had no reason at the time to believe that he was a suspect.

[25]

While the video is of good quality, the view of the stabber's face is not clear enough for me to conclude with the requisite degree of certainty that he is Mr. Green. As noted, there appear to me to be differences which, while not major, are not insignificant.

C. Other Circumstantial Evidence

[26]

The similarities in appearance between the stabber and Mr. Green are not the only evidence. Most significantly, the "distressed" jeans with the highly distressed spot, which appears to be a hole, above the left knee worn by Mr. Green at the time of his surrender are very similar to the jeans worn by the stabber. However, I can and do take judicial notice of the fact that people purchase "distressed" jeans with holes in them. I do not know if the hole in Mr. Green's jeans were part of the design and, if so, how common they are. While this is a significant piece of circumstantial evidence, in my view it is not conclusive.

[27]

There is also no issue that Mr. Green was present at the bar that evening when the police arrived and I infer that he was likely present earlier, including when the stabbing occurred. As well, he knows both Ms. Ali and Mr. Carter, and the stabber can be seen speaking to Ms. Ali and a person who is probably Mr. Carter, despite his denials. I find that neither Ms. Ali nor Mr. Carter were forthright in their testimony. In my view, it is likely that both of them know full well who the stabber is. The Crown submits that their motive for not being forthcoming with the Court is that they are friends of Mr. Green. That may well be, although I note that there is no evidence that Ms. Ali had any particular relationship with Mr. Green other than knowing him as a patron of her bar. In any event, the presence of an explanation for their reticence to testify truthfully does not change the fact that neither witness provided any evidence as to the identity of the stabber. However, they both know Mr. Green and they evidently both know the stabber.

D. Cumulative Consideration of the Evidence

[28]

I have considered all of the evidence cumulatively. This is a very close case. The evidence establishes guilt on far more than a balance of probabilities. In my view, Mr. Green is very likely guilty of both offences. Of this, I am almost certain. However, after careful and anxious consideration, I find myself with a reasonable doubt on the issue.

III. DISPOSITION

[29]

For the foregoing reasons, I find Mr. Green not guilty on both counts.

[30]

I would be remiss if I did not thank both counsel for the extremely professional and efficient manner in which they conducted these proceedings. In the finest traditions of the bar, they have demonstrated that an adversarial process does not mean that counsel cannot work cooperatively while still discharging their respective and different duties.

Justice P.A. Schreck

Released: July 25, 2016.

Footnotes

[1] The Crown successfully applied pursuant to s. 9(2) of the Canada Evidence Act to cross-examine Mr. Ponnuthurai on a prior statement he had given to the police in which he described the height of the assailant as being 5'9" to 5'11". Mr. Ponnuthurai explained that he had been in a lot of pain when he gave the earlier statement and declined to adopt it.

[2] The Crown did not seek to introduce the contents of Mr. Green's statement.

[3] The Crown did not tender Mr. Green's statement, so the video was played without sound.