Court Information

Ontario Court of Justice

Date: September 20, 2018

Court File No.: Central East Region: Oshawa Courthouse 17-Y18606

Parties

Between:

Her Majesty the Queen

— and —

A.P.

Judicial Officer and Counsel

Before: Justice Peter C. West

Evidence Heard on: September 19 and 20, 2018

Reasons for Judgment Released on: September 20, 2018

Counsel:

• Mr. G. Hendry – counsel for the Crown
• Mr. P. Schott – counsel for the defendant, A.P.

Warning

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Reasons for Judgment

WEST J.:

Facts

[1] A.P. and N.S. both attended […] Secondary School in the fall of 2017. They met at the beginning of their Grade 10 school year. A.P. had just moved from Scarborough with his family to Pickering. They were both in Grade 10 mathematics class. On October 5, 2017, N.S., A.P. and another friend of N.S., "J.", went to N.S.' house after school to smoke some weed, which was N.S.'. When they arrived at N.S.' house they went to his bedroom where they played a computer game and smoked a joint. They all mutually agreed to go into the backyard to play with fire. N.S.' mother was at work and his older sister was in her room. N.S. had a lighter and a plastic spray bottle of rubbing alcohol, which he brought outside. There was also a clay fire pit in the backyard on a stone patio. While in the backyard the boys set a fire in the fire pit, sprayed paper with the rubbing alcohol as well as pop cans and set them on fire. They also smoked some more weed. Both N.S. and A.P. described being moderately high from smoking the marihuana. N.S. testified he could not remember why they were playing with fire but he imagined it was because he wanted to.

[2] At some point the rubbing alcohol in the spray bottle ran out and A.P. went into the kitchen to see if there was some other flammable substance they could use to light more fires. There is a discrepancy between N.S. and A.P. as to what type of substance A.P. found but they were agreed a further bottle of a flammable substance was brought outside and was used to continue making fire. The fire that had been made inside the clay fire pit became quite large and glasses of water were obtained from the kitchen sink to try to put it out.

[3] At one point A.P. poured some of the substance, which he described as more rubbing alcohol into the chimney of the fire pit, where there was already a fire going. When he did this the fire ran up the liquid being poured and set the bottle on fire. N.S. became concerned and knocked the bottle out of A.P.'s hand. It fell onto the stone patio and some of the flaming liquid set the patio and possibly some of the grass on fire. There was evidence that one of the patio chairs was also burned. N.S. tried to pick up the burning bottle and he burnt himself on his hand and dropped the bottle. A.P. picked up the burning bottle and began to walk towards the open kitchen door to put it into the kitchen sink. He described how he and N.S. were panicked because the fire was not going out. N.S. described how he became panicked and concerned that A.P. was bringing the bottle inside his house. As a result he picked up the glass of water and threw the water at A.P. in a forward motion.

[4] There are some minor differences between the two boys' evidence as to where they were when the water was thrown. Initially N.S. testified A.P. was just going up the steps to the kitchen door when he threw the water. A.P. testified he felt the water on his lower back when he was in the area just in front of the table seen in Exhibit 2C, photo 109. N.S. initially described a jacket outside on a lounge chair being set on fire as well as the roof, but I asked some clarifying questions and the jacket was on the left chair in Photo 110 and 111 in Exhibit 2C and when he was saying the roof was on fire he actually meant to say the ceiling in the kitchen. Both boys also described there being some burning liquid on the kitchen floor, which was tile. N.S.' evidence changed somewhat in that A.P. was in the kitchen when the water was thrown and N.S. was also in the kitchen when the burning liquid hit his face and torso.

[5] The only significant difference between N.S.' and A.P.'s evidence was whether after N.S. threw the water at A.P., A.P. turned around and threw the burning liquid at N.S. covering his face and torso with it, which was N.S.' testimony or whether the water caused A.P. to slip and fall onto his back causing the burning liquid from the bottle to accidently splash on N.S.' face and torso. When the incident occurred "J." was in the basement in the washroom.

[6] It was the defence position there was an air of reality to A.P.'s explanation for how N.S. was burned, that it was a terrible accident but not done intentionally. Mr. Schott submitted the Crown has not proven either of the charges beyond a reasonable doubt and there should an acquittal.

[7] The Crown argued I should accept N.S.' evidence and reject A.P.'s evidence and that the Crown therefore had proven the charges beyond a reasonable doubt.

Legal Framework

[8] In determining whether the Crown has proved A.P. assaulted N.S. on the five occasions alleged I must apply certain legal principles, which I will now describe.

[9] The Crown has the onus to prove the essential elements of these assaults facing A.P. beyond a reasonable doubt. A.P. is presumed to be innocent and he does not have to prove anything. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony.

[10] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[11] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit A.P. if I accept his evidence denying he assaulted N.S. Even if I do not accept all of A.P.'s evidence I must ask myself if it raises a reasonable doubt concerning his guilt after considering it in the context of the evidence as a whole. If it does I must acquit. If I reject his evidence and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.

[12] A determination of guilt or innocence must not become a mere credibility contest between the Crown's witness and the defence witnesses. Such an approach erodes the operation of the presumption of innocence and defeats the standard of persuasion of proof beyond a reasonable doubt.

[13] I must assess the evidence of the Crown's witness and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses.

[14] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed.

Analysis and Decision

[15] As I indicated, there is really only one significant area of discrepancy between N.S.' evidence and A.P.'s evidence and that has to do with whether A.P. deliberately threw the burning liquid at N.S. or whether this was a terrible accident that occurred as a result of A.P. slipping and falling backwards as he was attempting to get to the kitchen sink to douse the flaming bottle. It is my view both versions provide a reasonable explanation for how the burning liquid landed on N.S.' face and torso. I do not agree with the Crown's submission that the water would only have been behind A.P. and therefore could not have caused him to slip and fall backwards. N.S. testified he threw the water from the glass in a forward motion towards A.P. who was in front of him. It is equally consistent with this evidence that some of the water landed on the floor in front of A.P. and caused him to slip and fall.

[16] There was no evidence of any animosity or anger between N.S. and A.P. N.S. had invited A.P. to his house to smoke some of N.S.' weed. There was nothing in the evidence, in my view, to suggest that A.P. had any animosity towards N.S. I do not accept the Crown's submission that the fact N.S. threw water at A.P. would have caused A.P. to become so upset he would turn around and throw the burning liquid onto N.S. In my view this submission does not accord with the evidence and in my view that not make logical sense. From the evidence of both boys it was clear they were both panicked and greatly concerned about the consequences of their actions in setting fires in the backyard, particularly having regard to the fact both boys were aware N.S. burned his hand when he tried to pick up the burning bottle after he knocked it out of A.P.'s hand. Further, they both became panicked when they had difficulty putting out or lessening the fire in the fire pit or the fire on the patio stones and one of the patio chairs.

[17] The Crown spent a great deal of his cross-examination of A.P. respecting his attempting to help N.S. with his drug debt to C.J. N.S. was asked about his drug debt in chief and on two occasions he testified the drug debt had nothing to do with A.P. A.P.'s explanation for why he wanted to assist N.S. in my view does make logical sense. A.P. had just changed schools. He observed C.J., his drug dealer as well, yelling and threatening N.S. outside of school. He spoke to N.S. about it and found out N.S. had a drug debt. After a couple weeks he decided to provide some money to N.S. to assist him with C.J. It is my view this does not in any way impact negatively on A.P.'s credibility.

[18] The Crown argued that A.P. telling N.S. he was stupid somehow provided some evidence that A.P. had animus towards N.S. N.S. could not recall the circumstances of when or why A.P. said he was being stupid. A.P.'s explanation in my view provides a reasonable explanation for why a friend might tell a friend they are being stupid. He testified he told N.S. he was being stupid skipping classes to smoke weed. A.P. testified he smoked weed when he wasn't in school on his free time.

[19] The Crown also cross-examined A.P. on not really caring what happened to N.S. because he did not call him the next day to see if he was okay. I accept A.P.'s evidence on this issue that he did call N.S.' house the next day and spoke to N.S.' mother and asked if he was okay. I completely understand N.S.' mother's reaction in telling A.P. not to call their home again and that the police were involved.

[20] Finally, A.P. was vigorously cross-examined by Mr. Hendry and throughout his evidence was consistent and responsive to the questions being asked. He was not evasive in his answers and was not caught out in any glaring inconsistencies between his evidence in chief and cross.

[21] This is a classic case where in considering the totality of the evidence I am unable to completely reject A.P.'s evidence. In this circumstance the two charges facing A.P. must be dismissed as the Crown has not proven the charges beyond a reasonable doubt.

Concluding Remarks

[22] Before ending this trial I believe it is important for me to indicate the following: the injuries caused to N.S. were serious, thankfully they have healed completely, without any lasting injury or scar. The facts of this case demonstrate the significant dangers that can occur when individuals decide to play with fire. The addition of these young lads smoking marihuana and then engaging in using a flammable liquid to ignite paper and cans on fire and then pouring the flammable liquid into the fire, only increased the dangerousness of their actions and the potential for someone being injured. The consequences of what occurred on October 5, 2017, could have been far more drastic and far-reaching.

Released: September 20, 2018

Signed: Justice Peter C. West