Court File and Parties

Ontario Court of Justice

Date: 2018-10-26

Court File No.: Niagara Region 998 17-N2362

Between:

Her Majesty the Queen

— and —

Frank Caputo

Before: Justice J. De Filippis

Heard on: September 10 & 11, 2018

Reasons for Judgment released on: October 26, 2018

Counsel

Mr. H. Limheng — counsel for the Crown

Ms. B. Walker — for the defendant

Judgment

De Filippis, J.:

Introduction

[1] The defendant was charged with mischief on June 20, 2017 at Niagara Falls. It is alleged that he damaged a motor vehicle. I heard from 10 witnesses. These reasons explain why I find him not guilty.

Evidence

[2] On June 20, 2017 at 1:55 PM, P.C. Easby responded to a complaint about damage to a motor vehicle at 6035 Murray Street in Niagara Falls. This is a three-storey apartment building. The defendant, complainant, and most witnesses in this trial live in this building. Tenants are assigned designated spots for their motor vehicles. Photographs taken by the officer show marks and dents on the side of a Honda CRV, as well as a shattered mirror. This vehicle is owned by Mr. John Brookman.

[3] Ms. Jeannette Taylor lives on the second floor of the building. Her balcony overlooks the parking lot. She testified that on the evening of June 19, around 11 pm, she heard "smashing noises and yelling". She went to her window and saw the defendant, who "appeared to be drunk", throwing dirt and rocks from a garden at vehicles parked in the lot. She saw that the complainant's motor vehicle was struck by these objects. She said the defendant's conduct continued until about 4 am. Ms. Taylor testified that she is "100% certain" the defendant was responsible because she has lived in the building for seven years and knows "what he looks like and his voice". She described him as wearing "shorts, no shirt, and flip flops". Ms. Taylor noted that the parking lot was well illuminated by two "very bright" lights on the roof of the building, along with lights on the side of it – one of which was not in working order.

[4] The complainant, Mr. John Brookman, lives on the third floor of the building and knows the defendant as one of the other tenants. He testified that around midnight on June 19/20 he heard the dumpster adjacent to the parking lot repeatedly being opened and closed. He went to his balcony and saw that the defendant was the person who was slamming the lid. When the defendant became aware of the complainant, he shouted, "peekaboo I see you". The complainant retreated inside his unit as the defendant appeared to be drunk. However, he heard a different banging noise and returned to his balcony and saw the defendant throwing things at his car. All these events happened within five minutes. He described the defendant as wearing shorts and no shirt.

[5] The complainant explained that he did not confront the defendant on the evening in question and added that "there have been prior incidents with him and nothing is ever done". Nevertheless, he called police on the morning of June 20th after he inspected the damage to his car. The complainant noted that he wants the defendant to be held responsible for his actions and agreed that he is aware that a conviction in this matter could be cause to evict him from the building. He insisted that the parking lot was well lit.

[6] The defendant lives on the second floor of the building "as part of Niagara Housing". He denied committing the offence. He said that he was not outside at the time in question and was not drunk. He produced a book of photographs that purport to show various angles of the building and parking lot during the day and at night. The night photographs are dark with no artificial lighting. Almost nothing can be seen in these photographs. The defendant testified that these pictures were taken within weeks of the events in question – he specifically recalls the date, July 14, as this is his father's birthday. He could not explain why two of the "day pictures" show dried leaves on the parking lot and trees in the background with leaves that are sparse and brown. It is obvious that these photographs were taken in the autumn.

[7] Mr. Gerald Sawchuk is the superintendent at the building in question and became aware of the allegations the following day. He testified that at this time there "was an issue with the [exterior] lighting fixtures and this was not fixed until August". He explained that there were lights on the roof and side of the building. The former did not work. He testified that it would have been dark in the parking lot by 11 pm.

[8] Four other Defence witnesses testified that the lighting conditions at the time of these events was such that the parking lot would have been in almost complete darkness. These witnesses are Thomas Gilfillan, Jack Potter, Julien Booth and Frank Caputo Jr. (the defendant's son). All but the defendant's son are tenants of the building. Frank Caputo Jr. happened to be staying overnight at his father's unit. The tenants confirmed the evidence of the superintendent that the difficulties with the exterior lights was not remedied until after the date in question. Each of these witnesses also testified that they did not hear any noises outside in the early morning hours of June 20. However, none of them were present or in a position to observe what may have happened around midnight.

[9] All Defence witnesses, except Mr. Sawchuk (the building superintendent) discussed the allegations amongst themselves. They concede that the defendant told them he was innocent and that they believe him.

Analysis

[10] The Crown must prove its case beyond a reasonable doubt. If the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises a doubt, based upon reason. An acquittal will follow even if the Defence evidence is not believed and does not leave a doubt, based upon reason, but the remaining evidence fails to prove that the defendant is guilty: R v. W.D., 63 C.C.C. (3D) 397. In determining if the Crown has discharged its burden of proof, all evidence may be considered. This also means that any Defence evidence should not be viewed in isolation.

[11] I reject the suggestion that Mr. Brookman and Ms. Taylor were not truthful in giving evidence. The question is one of reliability, not credibility. In this regard, the Defence evidence is determinative.

[12] Mr. Brookman and Ms. Taylor are confident the defendant committed mischief. Their accounts are similar – especially as it relates to the defendant's clothing. Their testimony about the timeline is different: Ms. Taylor testified that the defendant caused a disturbance over several hours, between 11 pm and 4 am. Mr. Brookman said that it all happened within minutes around midnight. It may be that the latter was simply focusing on the specific act of mischief. In any event, the Defence evidence casts doubt on the prosecution narrative.

[13] The defendant's insistence that the photographs he produced are proximate to the events in question is obviously wrong – some of them are clearly autumn scenes. These photographs were produced to support the inference that Mr. Brookman and Ms. Taylor could not have seen the defendant on the night in question. I would not readily believe or rely on his testimony. However, the other five defence witnesses attest to the fact that the building lights were not all in working order and that it was very dark, with little or no visibility. There is no reason to reject this evidence. In the circumstances of this case, the fact that most of them discussed the allegations does not trouble me. This means whatever Ms. Brookman and Ms. Taylor thought they saw cannot be safely relied upon.

[14] There is no question that Mr. Brookman's motor vehicle was damaged by somebody who caused a disturbance and threw objects in the parking lot around midnight on June 19/20. It may be that the defendant is responsible for this. However, that this is possible or even probable does not meet the criminal law standard of proof. I have a reasonable doubt about the defendant's guilt.

[15] The charge is dismissed.

Released: October 26, 2018

Signed: Justice J. De Filippis