Ontario Court of Justice
Date: 2018-10-16 Court File No.: Newmarket 18-02824
Between:
Her Majesty the Queen
— and —
Monzer Hannora
Judgment
Evidence heard: October 16, 2018 Delivered: October 16, 2018
Counsel:
- Mr. Phillip Hsiung, counsel for the Crown
- Mr. Monzer Hannora, on his own behalf
KENKEL J.:
Introduction
[1] Mr. Hannora's father retained a lawyer to provide a legal opinion. Mr. Hannora paid his father's legal fees in advance. He said the lawyer promised to deliver the opinion several times but after four months and no response to emails he went directly to the lawyer's office to ask for the return of the file.
[2] The lawyer testified that he told Mr. Hannora to get a written direction from his father who was the client and he would prepare the file for release in the interim. He said Mr. Hannora went into his office, saw the file and took it. He pushed the lawyer aside causing him to fall into a sideboard and a porcelain horse figurine was broken. Mr. Hannora testified that the lawyer broke the figurine either by hitting him over the head with it or by dropping it. Mr. Hannora is charged with Mischief to Property of a value less than $5000 contrary to s.430(4) of the Criminal Code.
[3] To determine whether the Crown has proved the allegation beyond a reasonable doubt the court must consider two issues: the credibility of the witnesses and whether the Crown has otherwise proved that the accused had the necessary intent.
Credibility
[4] I've considered all of the evidence heard and the photograph exhibits that were presented at trial. In the context of all of the evidence I find I'm unable to accept Mr. Hannora's testimony on the central point as to how the damage was caused for the following reasons:
Given the lack of contact with the lawyer in the weeks and months prior to the incident, it's understandable that Mr. Hannora would have been at least frustrated with the lack of progress. While Mr. Hannora was careful to say he wasn't upset, I find his evidence that he had no feeling at all about the situation when he attended the lawyer's office unlikely to be true.
There was an internal contradiction in his evidence as to whether he was there simply to retrieve the file or whether he still expected he would receive an opinion and discuss it that day. The latter is unlikely given that the visit to the office was not scheduled and his father the client wasn't present.
Mr. Hannora testified that he followed the lawyer from reception and went into the lawyer's office not to get the file but because he was confused and wanted to get an answer to his questions. The credible evidence shows that Mr. Hannora had been told that his father needed to sign a direction to release the file. There was no reason for him to follow the lawyer into the office to discuss that further.
Mr. Hannora testified that the lawyer punched him on the head when he reached down to pick up his file and the bag he'd left it in. There was no apparent reason for the lawyer to do that. Mr. Hannora's suggestion that there was another person's file in his bag and maybe the lawyer thought he was stealing that file didn't make sense. There was no reason for the lawyer to have taken the Hannora file out of the bag that it came in and insert someone else's file prior to the unannounced visit.
Mr. Hannora gave two different versions as to how the horse came to be broken. At first he said he saw the lawyer holding the horse. He didn't know what the lawyer intended to do with it, maybe hurt him, but it fell from the lawyer's hand onto the floor and broke. He did not push the lawyer when the horse fell. In cross-examination Mr. Hannora testified that, "I felt something hard hit my head … I realize that he broke a horse toy with my head. I got dizzy and felt nausea and vomiting. This is where I have my life in danger and he threatened to kill me if I don't leave my bag." The porcelain horse in question as shown in the photographs is large. When laid on its side it's as wide as the sideboard file storage unit it's on and plainly several feet high. Mr. Hannora's explanation that he doesn't know if he was hit with that horse wasn't credible. If he had been hit in the head with that large horse he would know it. He'd certainly feel it as different from a hand or fist and he'd hear the sounds of the porcelain breaking. Mr. Hannora's testimony on this central point was inconsistent and incredible.
[5] Having reviewed all of the evidence I find the Crown's witness to be credible for the following reasons:
His testimony was logical, internally consistent and consistent with the external photographic evidence.
His evidence that Mr. Hannora refused to leave the office and obtain a direction from his father is consistent with the accused's actions. Mr. Hannora refused the lawyer's request to leave, the security guard's request that he leave and even the police request that he leave. He was eventually arrested and charged.
The complainant's evidence that the accused went into his office, saw the bag with his father's file in it and went to retrieve it is consistent with the accused's purpose when he attended the office.
The complainant's evidence that the accused pushed him with force as he went to retrieve the file and his account of the subsequent damage to the figurine is logical given the circumstances and consistent with the photographs of the room, the positions of the parties and the damage caused.
The complainant's limited account of a push shows no sign of exaggeration or animus towards the accused that would detract from the reliability of his evidence.
[6] I agree with the Crown that neither version of the accused's evidence on the central point was put to the complainant and it was never suggested to him in cross-examination that he hit the accused but I decline to draw any inference from that circumstance in this case where the accused is not represented.
[7] I agree with Mr. Hannora that the fact that he called 911 and the fact that he stayed in the office are circumstances that might logically be consistent with his evidence that he did nothing wrong, but on the whole of the evidence I find those circumstances don't reasonably leave a doubt where the credible evidence shows that Mr. Hannora sought the intervention of the police so they would tell the lawyer to release the file. When that didn't happen he argued then struggled with them until they eventually had to arrest him.
[8] I accept the complainant's evidence as both credible and reliable.
Intent – Recklessness
[9] It's plain that Mr. Hannora did not go to the office that day to intentionally cause damage. The credible evidence shows the damage was caused as a result of a push. The Crown submits that in these circumstances Mr. Hannora pushed the complainant and recklessness as to the consequences shows sufficient intent.
[10] Exhibit 1B shows the narrow space by the floor where the Hannora file was located. It's right beside a sideboard file storage unit that is filled with framed photographs on display and the large horse figurine. Mr. Hannora would have seen the sideboard when he entered the office and when he made his way to retrieve the file. In pushing the complainant in that direction Mr. Hannora would have known that it was likely the complainant would bump into one or more of those items and damage could be caused. While he didn't necessarily intend specifically for the horse to be broken, he was reckless as to that result. See: R v Briscoe 2010 SCC 13, at para 22. I find the Crown has proved the fault element of the offence alleged.
Conclusion
[11] I've considered all of the evidence at trial as a whole but I'm unable to find any credible evidence that reasonably could leave a doubt. The Crown has proved beyond a reasonable doubt that Mr. Hannora caused the item at issue to break in the manner described by the complainant and that the action was accompanied by the necessary intent.
Delivered: October 16, 2018
Justice Joseph F. Kenkel