Court File and Parties

Ontario Court of Justice

Date: 2016-09-02

Court File No.: Newmarket 15-04570

Between:

Her Majesty the Queen

— and —

Kamil Jakub Jaworek

Before: Justice J.F. Kenkel

Evidence Heard: November 27, 2015; February 3, 2016; July 19, 20, 2016; September 2, 2016

Judgment: September 2, 2016

Counsel:

• Ms. J. Lee, Ms. M. Daigle — counsel for the Crown
• Mr. S. Dimitryjevec — counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] Shortly after Mr. Jaworek left a bar he became involved in an argument with a woman sitting across the street. He walked over to her side of the street, they both waved fists at each other, then Mr. Jaworek walked back across to his side. The argument continued back and forth and expanded to include others including Mr. Jaworek's friend Mano. Mano said something to the complainant who had been uninvolved to that point and she crossed the street towards him. Mr. Jaworek rushed towards the complainant as she crossed the street. She says he punched her and she fell back to the ground. Mr. Jaworek says he walked towards her, then backed up and told her to go back across the street. He says she tripped herself and that's why she fell to the ground.

[2] Mr. Jaworek is charged with assault contrary to s. 266 of the Criminal Code.

[3] The credibility and reliability of the witness evidence is the central issue in the case in determining whether the Crown has proved the allegation beyond a reasonable doubt. The WD framework applies. See: R. v. W.D., [1991] SCJ No 26.

The Evidence

[4] The complainant testified that she had spent the night drinking and was waiting with friends for them to leave by taxi when her friends became involved in an argument. Eventually the complainant crossed the road to speak with Mano and the accused charged at her. She recalls that the accused "slugged me right in the face and I went flying". She fell back onto the street and lay there until police arrived a few minutes later.

[5] The accused also spent the evening drinking. He was with his friend Mano when he got into an argument with Cindy and Butch who were across the street. He walked over to their side of the street, calmly told them to act their age and then walked back over to his side. When he reached the other side he saw a third person Kate, run across the street towards Mano. He thought she had a bottle. He told her to go back, then he backed away from her. He saw her back up and trip over her own feet, falling backwards. He made no physical contact with Kate.

[6] Ms. Pauline Lambert observed the incident from the window of a nearby apartment. Ms. Lambert testified that Mano yelled something to the complainant that caused her to get up and cross the street towards him. As she crossed the street the accused ran towards the complainant with his arm extended in an open hand push position, not a fist. They met and the complainant fell to the ground and was crying. She said Mr. Jaworek and Mano "ran away" but Mano later returned to the area.

[7] Mr. Persaud known as "Mano" testified for the defence. He had been drinking that night as well but he thought the complainant was, "really intoxicated". His evidence was contradicted by that of every other witness and was inconsistent with the video record. He denied he was on scene at the time of the alleged assault, but I accept the evidence of every other witness present on this point that he was the man in the white T shirt with the accused in the video. His evidence is plainly unreliable given his intoxication at the time and both parties agree it cannot be given any weight.

Analysis

[8] I've first considered the evidence as a whole, and make the findings of fact that follow in that context.

[9] The complainant had been drinking heavily that evening and showed some disorientation when speaking with police after the incident. It turned out she was right when she testified that more than one officer had attended. That was unknown to either counsel and triggered some further defence disclosure inquiries. She was mistaken though, when she testified that officers had chased after the accused. That and other deficiencies show that the reliability of her evidence is called into question by her intoxication that evening and the fact that she hit her head in the fall. I approach her evidence with caution to the point where I am unable to give it weight unless it is confirmed by other credible evidence.

[10] The accused was also drinking that evening. As Ms. Lambert said of the accused, Mano, the complainant and her friends, "It was obvious they'd all been drinking." Her observation on this point is consistent with the evidence of the complainant, the actions of the accused, the complainant and her friends as shown in the video, and the circumstances of the incident. I approach the evidence of the accused with caution regarding the reliability of his evidence. As explained above, the evidence of his friend Mano cannot be given any weight.

[11] The video confirms the evidence of all witnesses that Mr. Jaworek crossed the street to argue with a woman named Cindy. Mr. Jaworek testified that he was calm and simply told Cindy to grow up and act her age. The video record is inconsistent with that evidence. At 00:40:35 it shows the accused making a fist and twice shaking his fist gesturing towards Cindy. She does the same back.

[12] The accused testified that he grew tired of arguing with Cindy and simply returned back to the other side of the street. The video however shows at 00:40:57 that he stopped in the street, turned back towards her and held his arms up outstretched wide. He waved his arms up and down still arguing. At 00:42:19 just before the complainant got up to cross the street, the accused stood facing Cindy, rapidly swinging his arms in front of him, clasping his hands together repeatedly then out wide in an aggressive gesture.

[13] The video shows Mr. Jaworek rushed towards the complainant as she crossed the street. His evidence that a beer bottle was thrown at him and flew by his ear at this time is incorrect as the video shows at 00:42:23 that a male standing by Cindy threw the bottle directly across the street towards Mano while the accused was standing still and before he moved towards the complainant.

[14] The accused's recollection that he was backing away from the complainant as she backed away from him is contradicted by the video record which shows at 00:42:25 the accused rushing towards her with his arm outstretched. At 00:42:26 the video shows the complainant suddenly lurch back. Her head is back and both of her feet are off the ground. She then fell backwards. At this point her feet become entangled and she fell to the ground. Contrary to the accused's recollection though, the video shows the accused was still moving forward towards the complainant even as she fell. His arm that had been extended towards her dropped across the front of his body as she fell. The video record is inconsistent with the accused's recollection on the central points.

[15] The complainant's evidence that she got up and walked towards Mano is consistent with the video evidence which shows her uninvolved during the initial argument as she said, then reacting to something said by Mano. She got up and walked quickly across the road towards him. The complainant's evidence that Mr. Jaworek "charged" at her is also supported by the video evidence after 00:42:23 which shows him turn and rush towards her.

[16] At the moment they meet, the upper bodies of the accused and the complainant are obscured on the video by a lottery sign in the store window. However, the complainant's testimony that she was hit by the accused is consistent with the video evidence showing the accused rushing towards her with an extended right arm at 00:42:25, the proximity in which they meet as shown by the legs visible in the video throughout, and the manner in which the complainant suddenly lurches backwards at 00:42:26. The video shows her head tilted backward and both of her feet appear to be off the ground. She then fell back, tripped and fell down onto the roadway with the accused still moving forward towards her, his right extended arm dropping down across his body in front of him.

[17] It was suggested to the complainant in cross-examination that she had been arguing with Mr. Jaworek before crossing the street to run towards him. The video evidence showing her running towards Mano and the consistent credible evidence of Ms. Lambert and the accused's evidence on this point supports the complainant's answer that she'd been arguing with Mano and was walking towards Mano when the accused intervened.

[18] Ms. Lambert was the only witness who was sober at the time. She knows both the complainant and the accused, but she knows the accused better. He's a friend who's been in her apartment. Despite her stronger link to the accused, I find that Ms. Lambert was a factual and neutral witness. Her testimony was consistent with the video record. Her testimony was shown to be independent of both parties, derived from her own memory and was not affected by contact with either the accused or the complainant. I find her to be a credible and reliable witness and I place great weight on her evidence. I also place great weight on the independent and reliable video record.

[19] I accept the whole of Ms. Lambert's evidence with one important caveat as to her observation of the moment of contact. In cross-examination the complainant was shown her initial statement and she agreed that her present recollection of seeing the moment where the accused's extended hand contacted the complainant's face was not mentioned there. Initially she'd told the police that the accused ran towards the complainant with his arm extended "as if to hit or push her" but her statement didn't go on to describe the point of contact. She did see the complainant fall backward and cry out in apparent pain. She couldn't now explain the omission.

[20] When a civilian leaves out a detail in an initial statement, even on a central point, that's not necessarily an inconsistency that detracts from their credibility. For example, the defence challenged Ms. Lambert's evidence as to whether the complainant walked fast across the street towards Mano. It's not plain why that testimony was challenged given that the accused eventually gave the same evidence, but the point was apparently to attempt to contradict the witness in the sense of showing something she testified to at trial hadn't been mentioned in her original statement. The video evidence plainly shows the complainant walking quickly across the street, so Ms. Lambert's recollection at trial from memory was factually correct even though that detail had not been in her original statement.

[21] Given Ms. Lambert's close vantage point and the fact that she was able to see and describe in detail the moments leading up to contact and immediately after, all consistent with the video record, it may well be that her present recollection that she saw the accused strike the complainant's face is correct. However, given the omission in the original statement on this important point, I find it safer to disregard her evidence on this one point as to the observation of contact. I accept her evidence as to her observations in the moments immediately before and after contact and of the remaining events she described.

[22] I cannot accept the accused's evidence as it is inconsistent with the credible evidence at trial. It does not leave a reasonable doubt either alone or in combination with other evidence.

[23] The credible evidence at trial shows that the complainant was uninvolved in the argument between the accused and the other two parties. Mano said something to her from across the street which caused the complainant to get up and walk quickly across the street towards him. The accused rushed towards her with his arm outstretched and contacted her with an open hand in the head area causing her head and body to move backwards. She lost her balance as she landed. She tripped backwards, fell to the ground and hit her head. I can find no credible evidence which reasonably could leave a doubt on these central points.

Conclusion

[24] I find the Crown has proved the allegation beyond a reasonable doubt. There will be a finding of guilt.

Delivered: September 2, 2016

Hon. Joseph F. Kenkel