Court Information

Ontario Court of Justice Scarborough – Toronto Date: November 27, 2017

Parties

Between: Her Majesty the Queen

And: Spencer Williams

For the Crown: L. Vandersteen For the Defendant: A. Goldkind

Heard: October 6, 2017

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Spencer Williams is charged with: (1) fraudulently obtaining beverages at the Candi Bar restaurant, (2) threatening Shea Fox with bodily harm, and (3) assaulting Robert Stewart, causing him bodily harm.

[2] The allegations arise out of altercations that occurred on September 7, 2015.

[3] The Crown called five witnesses: (1) Candice Bachew, the owner of the Candi Bar, (2) Shea Fox, a patron of the bar on the evening in question, (3) Tharvena Paskarathevan, (4) Robert Stewart (who, along with Ms. Paskarathevan, was assaulted that night), and (5) P.C. Robert McDonald who arrested Mr. Williams after the assaults.

[4] Mr. Williams called no evidence.

B. ISSUES

[5] With respect to the alleged fraud, there is no doubt that Mr. Williams consumed beverages at the Candi Bar and did not pay for them. The issue is whether he had the necessary fraudulent intent when he left the bar without paying.

[6] With respect to the alleged threat, the only issue raised by the defence is whether the words spoken constitute a threat in the context in which they were uttered.

[7] As concerns the assault on Mr. Stewart, there are two issues: (1) was it indeed Mr. Williams who was involved in the assaults on Mr. Stewart and his girlfriend, Ms. Paskarathevan, and (2) if so, was his participation in the attack such as to make him a party to the assault on Mr. Stewart.

C. DISCUSSION

(a) The Fraud

[8] According to Candice Bachew, Mr. Williams and his friend (who was not named in the evidence) ordered $127 worth of drinks at her bar on the evening of September 7, 2015. When she gave them the bill they offered her $60 and she refused the lesser amount. They asked if they could come back and pay another day and she said no. They then left without paying. On cross-examination Ms. Bachew admitted that she initially approached Mr. Williams's friend about the bill, but maintained that the discussion over the bill involved the three of them.

[9] Her evidence was not contradicted, and counsel for Mr. Williams admitted on his behalf that he was indeed the taller of the two patrons that dealt with Ms. Bachew.

[10] Section 364 (1) of the Criminal Code makes it an offence to fraudulently obtain food or beverage. Section 364 (2) provides that evidence that the accused obtained food or beverage and then absconded without paying for it, is, in the absence of evidence to the contrary, proof of fraud.

[11] Mr. Goldkind, counsel for Mr. Williams, concedes that his client did indeed obtain beverage, and did abscond without paying but argues that the evidence of a discussion between his client's friend and Ms. Bachew about the friend returning later to pay the bill is evidence of an intention on the part of the accused to return with payment.

[12] I reject this argument. No arrangement for later payment was agreed to by Ms. Bachew, and I heard no evidence of any attempts to pay the bill after that September evening. The actions of the accused in regards to the bar bill create a presumption of fraudulent intent on his part which is not rebutted by any evidence, including the evidence arising out of his participation in the discussions surrounding the bill. He is thus guilty of count one.

(b) The Threat

[13] According to Shea Fox and Ms. Bachew, Mr. Williams threatened to hit Mr. Fox over the head with a chair and to kick him in the ribs. According to Mr. Fox, and as corroborated by a CCTV video of the accused's behavior prior to the threat, Mr. Williams had lost his temper and had begun banging on the bar with both fists. The threat was levelled after Mr. Fox asked Mr. Williams to settle down.

[14] I accept the uncontradicted evidence of Mr. Fox and Ms. Bachew as concerns the events in the bar. The words spoken by the accused, in the context in which they were spoken, would clearly convey a threat of serious bodily harm to an objective person. It matters not whether Mr. Fox felt intimidated. See R. v. Clemente, [1994] 2 S.C.R. 758, and R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931. The accused is thus guilty of count two.

(c) The Assault

[15] Mr. Stewart and Ms. Paskarathevan were walking home, heading south on the west side of Morningside, just north of Coronation. Two men approached them from the other side of Morningside, where the Candi Bar is located.

[16] The taller of the two was described by Ms. Paskarathevan as 6' tall, dark skinned, in his twenties, and wearing a white shirt. She described the shorter one as wearing a purple shirt and black jeans, with a short buzz cut.

[17] Mr. Stewart described the taller one as 6' tall, and black. He described the shorter one as 5'6" and half black, half white. He could not provide a clothing description of either man.

[18] Both Ms. Paskarathevan and Mr. Stewart testified that the shorter of the two perpetrators yelled "Let's jump these guys", or something to that effect, and proceeded to punch Mr. Stewart in the face twice. Mr. Stewart blocked the second punch and suffered a fractured hand as a result. After the second of the two blows to Mr. Stewart, the tall perpetrator grabbed Ms. Paskarathevan by the hair and yanked her head violently, saying "shut the fuck up" in response to her yelling. The smaller perpetrator was then about to strike a third blow when they got scared away by a bystander.

(i) Was the Accused the Tall Perpetrator?

[19] Shea Fox testified that he watched the very same men whom he interacted with in the bar leave the bar and immediately approach a couple that had just got off a bus across the street from the bar. According to him, the taller of the two men punched the man.

[20] Ms. Paskarathevan described the tall man's shirt as white. According to the CCTV video and the evidence of Mr. Fox, the tall man's shirt was dark with numbers on the back. In every other respect, however, the descriptions of the two perpetrators given by Ms. Paskarathevan and Mr. Stewart match the two men in the bar. I refer to their respective heights, their height relative to each other, the purple shirt and dark pants on the short one, and the relative length of their hair. As for Ms. Paskarathevan's failure to notice the tall man's hat, I can understand this oversight given the time of night and the stress of the encounter.

[21] I accept Mr. Fox's evidence that the two men in the bar were immediately involved in an attack on a couple and I conclude that he is simply wrong about which of the two was the principal assailant.

[22] That there was a separate incident involving two similarly described perpetrators, two similarly described victims, at the very same intersection at the very same time is too far-fetched a notion to raise a doubt on this issue.

[23] I conclude beyond a reasonable doubt that the accused was indeed the taller individual involved in the attack on Stewart and Paskarathevan.

(ii) Was the Tall Perpetrator a Party to the Assault on Mr. Stewart?

[24] The Crown argues that the accused was either a secondary co-principal, or an aider and abettor of his companion's assault on Stewart.

[25] The evidence clearly establishes that the accused's companion suggested to the accused that they together attack Stewart and Paskarathevan. While there is no evidence that the accused said anything in response to this invitation, the evidence does demonstrate that he nonetheless accompanied his shorter companion as his companion approached the couple and began to assault Stewart. The evidence also makes clear that the accused assaulted Paskarathevan, telling her to keep quiet, at the same time as his companion was in the midst of assaulting Stewart. The issue is, were the actions of the accused such as to make out his status as a party to the assault on Stewart. (I note that the accused was not charged with assaulting Paskarathevan, which, as I have intimated, he was clearly guilty of.)

[26] The resolution of this issue turns on the accused's state of mind and purpose when he assaulted Paskarathevan. If he assaulted her as part of an agreement with his companion to assault both her and Stewart he is guilty as a co-principal. See R. v. Ball (2011), 2011 BCCA 11, 267 C.C.C. 532 (B.C.C.A.). If he assaulted her intending to prevent her from coming to Stewart's assistance, he is guilty as an aider of his companion's assault on Stewart. See R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881.

[27] While the evidence of the accused's behavior that night proves a significant lack of good intentions on his part, it does not exclude the reasonable possibility that his decision to assault Paskarathevan was unrelated to his companion's assault on Stewart. It just might be that his decision to follow his friend in the direction of the couple was borne of his desire to remain with his friend. It might also be that his decision to assault Ms. Paskarathevan was an exercise in malice solely directed at her. While the likelihood of these scenarios is not very high, it is not so negligible as to not create a reasonable doubt as to the accused's criminal liability for the assault on Stewart. Count 3 is thus dismissed.

Released on November 27, 2017

Justice Russell Silverstein