ONTARIO COURT OF JUSTICE

CITATION: R. v. Carroll, 2019 ONCJ 64

DATE: 2019·02·07

B E T W E E N :

Her Majesty the Queen

— and —

Kevin Fitzpatrick Carroll

Reasons for Judgment

B. Guertin .......................................................................................... Counsel for the Crown

T. David ................................................................................. Counsel for the Defendant

Felix J.:

Table of Contents: R v. Kevin Fitzpatrick Carroll

I. Introduction................................................................................................................................ 3

II. Decision..................................................................................................................................... 5

III. Credibility, Reliability, and the Criminal Burden of Proof.................................................................. 6

A. Introduction....................................................................................................................................................................... 6

B. Summary of Credibility and Reliability Findings........................................................................................................ 7

IV. Dangerous Driving Northbound on Brock Road............................................................................... 8

A. Contact in Front of the Club........................................................................................................................................... 8

1. Evidence of the Defendant............................................................................................................................................. 8

2. Evidence of Dwite Barriffe............................................................................................................................................. 8

3. Evidence of Tarrick Brissett........................................................................................................................................... 9

4. Evidence of Katiesha Brissett........................................................................................................................................ 9

5. Evidence of Ashley Shura............................................................................................................................................. 9

6. Analysis: Contact in Front of the Club............................................................................................................................ 9

B. Driving Northbound on Brock Road........................................................................................................................... 11

1. Evidence of the Defendant........................................................................................................................................... 11

2. Evidence of Dwite Barriffe........................................................................................................................................... 11

3. Evidence of Tarrick Brissett......................................................................................................................................... 11

4. Evidence of Katiesha Brissett...................................................................................................................................... 11

5. Evidence of Kadeja Hughes......................................................................................................................................... 12

6. Evidence of Ashley Shura........................................................................................................................................... 12

V. Dangerous Driving: The Law....................................................................................................... 12

A. Introduction..................................................................................................................................................................... 12

B. Penal Negligence......................................................................................................................................................... 13

C. Dangerous Driving: Actus reus.................................................................................................................................. 13

D. Dangerous Driving: Mens rea..................................................................................................................................... 14

E. Marked Departure......................................................................................................................................................... 14

F. Exculpatory Defences................................................................................................................................................... 15

VI. Dangerous Driving Northbound on Brock Road:............................................................................ 15

A. Actus Reus..................................................................................................................................................................... 15

B. Mens rea......................................................................................................................................................................... 18

C. Conclusion..................................................................................................................................................................... 18

VII. Dangerous Driving in the McDonald’s Parking Lot..................................................................... 20

A. Evidence at Trial............................................................................................................................................................ 20

1. Evidence of the Defendant........................................................................................................................................... 20

2. The evidence of Tarrick Brissett.................................................................................................................................. 21

3. The evidence of Katiesha Brissett............................................................................................................................... 22

4. The evidence of Kadeja Hughes.................................................................................................................................. 23

5. The evidence of Ashley Shura.................................................................................................................................... 23

B. Analysis: Dangerous Driving in the McDonald’s Parking lot................................................................................. 24

1. Claimed lack of awareness of the complainant’s vehicle............................................................................................ 24

2. Arrival at the McDonalds Parking lot............................................................................................................................. 25

3. The defendant tried to distance himself from a finding that he was familiar with the McDonalds Parking lot............. 25

4. The defendant immediately pursued an innocuous stimulus........................................................................................ 26

5. First contact................................................................................................................................................................. 27

6. Physical confrontation with Tarrick Brissett................................................................................................................ 27

7. The defendant disavowed anger or upset after the fight with Tarrick Brissett.......................................................... 28

8. Statements made by the defendant before entering his vehicle.................................................................................. 28

9. Leaving the scene........................................................................................................................................................ 29

10. Testimonial admission................................................................................................................................................... 29

11. Dangerous Driving: Actus Reus................................................................................................................................... 30

12. Damage to the Defendant’s vehicle.............................................................................................................................. 32

13. After the fact conduct.................................................................................................................................................. 32

14. Dangerous Driving McDonald’s Parking Lot: Mens rea................................................................................................. 33

VIII. Fail to Remain...................................................................................................................... 33

IX. Assault and Utter Threat allegations............................................................................................ 34

A. Threats North Bound on Brock Road and in McDonald’s Parking Lot................................................................ 34

B. Assault: Tarrick Brissett............................................................................................................................................... 35

C. Assault: Katiesha Brissett........................................................................................................................................... 35

I. Introduction[^1]

[ 1 ] The defendant is charged with dangerous driving and other related criminal matters. The allegations involve a minor non-violent interaction at the front of a local night club between two groups. Thereafter, the allegation is that the defendant drove dangerously and uttered threats as the defendant drove his vehicle northbound on Brock Road in Pickering. The parties arrived at a 24 hour McDonald’s restaurant on Brock Road north of the 401 in Pickering. There it is alleged that the defendant assaulted Tarrick Brissett, and his sister, Katiesha Brissett. The final allegation is that the defendant drove dangerously by deliberately driving his BMW X5 SUV into Tarrick Brissett.

[ 2 ] The prosecution’s case focused on the evidence of four civilian witnesses occupying one vehicle [the complainant vehicle]: Kadeja Hughes was the driver, Katiesha Brissett was the front seat passenger, Tarrick Brissett (brother of Katiesha Brissett) was in the rear passenger seat on the driver’s side, and Ashley Shura was in the rear passenger side seat.

[^1]: Oral reasons were provided in Court on February 1, 2019. As explained that day, written reasons would be provided forthwith. The addition of full citations and minor grammatical changes that do not impact the content of the decision have been applied. These written reasons are the official judgment.

[ 3 ] The prosecution witnesses testified that there was a mild disagreement involving the defendant just prior to leaving the local night club. These witnesses generally testified that the defendant engaged in dangerous driving northbound on Brock Road after leaving the club. They describe the defendant tailgating, cutting their vehicle off, pulling in front of their vehicle, and slamming on the brakes. The driver had to take evasive action to avoid a collision. Thereafter, these witnesses say that the defendant followed them into a McDonald’s parking lot and parked right beside their vehicle. They say that the defendant came up to the complainant vehicle and assaulted Tarrick Brissett through the window of the vehicle. Further, that the defendant also assaulted Katiesha Brissett by grabbing her neck. Thereafter, the defendant and Tarrick Brissett engaged in a mutual fight. At the end of the fight it is alleged that the defendant got back into his BMW X5 SUV, drove around the parking lot at high speeds, and then deliberately struck Tarrick Brissett causing injury.

[ 4 ] The defence case focused on the defendant and his friend Dwite Barriffe who attended the night club together. The defendant’s position is that there was no conflict at the club. Furthermore, there was simply no contact with the complainants or their vehicle northbound on Brock Road. The defendant’s perspective is that when he arrived at MacDonald’s to get something to eat, someone from the complainant’s vehicle called out to him. He went over to say “Excuse me!” to the person and a female occupant of the car (later identified as Katiesha Brissett) got out and starting telling him off and waging her finger in his face. While he was occupied with this conflict a male party (later identified as Tarrick Brissett) grabbed him from behind and they fought. After the fight was over he was intent on leaving quickly as he heard that the police had been called. There was no unilateral assault committed on anyone. While he did leave the scene with some dispatch because he did not want to engage with the police, he did not impact the other parking lot patrons and did not hit anyone with his vehicle. It is only when he arrived at home and parked his car that he noticed damage to his car.

[ 5 ] At the outset, some preliminary guidance to this judgment is required. First of all, both counsel approached this case with attention to very fine detail. The examinations and cross-examinations were exhaustive and comprehensive. The written submissions naturally respond to the record produced. Given the approach of counsel, it is important to note that I will not rehash or regurgitate every single piece of testimony or every issue raised. I will summarize the evidence of the witnesses and then endeavor to explain what was important and why.

[ 6 ] Second, while this judgment will flow thematically through the events at the club, and the events on Brock Road, and culminate with the events in the McDonald’s parking lot, the criminal burden of proof is not being applied to individual issues or pieces of evidence.

[ 7 ] Third, identification issues were initially litigated in this case. Ultimately, the defendant conceded identification during the latter part of the prosecution case.

[ 8 ] Finally, the main focus of this judgment is credibility, reliability, and the proper application of the criminal burden of proof including the guidance in W.(D).

v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)]. The prosecution submits that the prosecution witnesses should be believed. The defence submits that the evidence of these witnesses is rife with inconsistencies and should not be relied upon. Furthermore, the defence submits that the defendant’s evidence analyzed through the framework of W.(D). should result in an acquittal.

II. Decision

[ 9 ] My findings require some amplification because of the approach of counsel at trial. The Crown Attorney made certain stipulations at trial with the result that the Assault with a Weapon (count 3) and Dangerous Driving (count 6) are referable to the same transaction – namely, the defendant operating his BMW X5 SUV motor vehicle and striking Tarrick Brissett in the McDonald’s parking lot.

[ 1 0 ] I find that the prosecution has proven counts 3 and 6 beyond a reasonable doubt. I will hear submissions concerning whether a conditional stay of one of these counts should be ordered R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729; and R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3.

[ 1 1 ] The Crown Attorney prosecuted the defendant for dangerous driving both on Brock Road. and in the McDonald’s parking lot. There was only one count of dangerous driving on the Information. The Crown Attorney sought an amendment to count 6 striking out the particularization that limited the dangerous driving to operation on Brock Road. Defence counsel consented to the amendment. As a result, the offence of dangerous driving is referable to both transactions – Brock Road, and the McDonald’s parking lot. Factually, while there is no representative count, I am satisfied beyond a reasonable doubt that the defendant committed the offence of dangerous driving on Brock Road as well.

[ 1 2 ] With respect to the criminal offence of fail to remain (count 4) some focus on the construction of the count is in order. Count 4 is particularized to allege that the defendant was involved in an accident with a vehicle. The count alleges criminal conduct under the penalty section -- s. 252(1.1.) of the Criminal Code of Canada [Criminal Code]. The prosecution did not particularize the count under either s.252(a) [a person], or s.252(b) [another vehicle]. The prosecution did not seek an amendment to conform with the evidence to focus the prosecution on either a person or another vehicle. There was no request for particulars on the part of the defendant. In these circumstances, I find that the prosecution must prove that which was alleged – that the defendant was in an accident with another vehicle. I am satisfied beyond a reasonable doubt that in striking Tarrick Brissett with his vehicle, the defendant also struck Kadeja Hughes’s vehicle breaking the driver’s side viewing mirror on her vehicle.

[ 1 3 ] The Crown has proven count 7 (breach of an s.810 recognizance) beyond a reasonable doubt.

[ 1 4 ] With respect to count 1 (Assault on Tarrick Brissett), count 2 (Assault on Katiesha Brissett), and count 5 (threatening allegation concerning Tarrick Brissett), the prosecution has not proven the offences beyond a reasonable doubt. I have a reasonable doubt sourced from the defendant’s evidence concerning the circumstances. Furthermore, I have instructed myself on the third branch of the W.(D). analysis. Having regard to what evidence I do accept from the prosecution witnesses, I am in a state of reasonable doubt. This combination of the defendant’s evidence and the third branch of W.(D). mandates an acquittal.

[ 1 5 ] I will address the convictions on counts 3, 4, and 6 first (the conviction on count 7 flows from the findings in relation to counts 3, 4, and/or 6). Then I will explain why I have acquitted the defendant on the remaining allegations.

III. Credibility, Reliability, and the Criminal Burden of Proof

A. Introduction

[ 1 6 ] I have considered a number of all-embracing principles relating to credibility and the criminal burden of proof.

[ 1 7 ] First, as in every criminal prosecution the Crown must prove the defendant’s guilt beyond a reasonable doubt. If there is any reasonable doubt it must be resolved in favour of the defendant.

[ 1 8 ] Second, I am guided by [W.(D.)] where the Court endorsed the following analysis concerning credibility and the criminal burden of proof: (1) if you believe the evidence of the accused, obviously you must acquit; (2) if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; (3) even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, are you convinced beyond a reasonable doubt by that evidence of the accused’s guilt.

[ 1 9 ] Third, a court may believe all, none or some of a witness' evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; and R. v. Abdallah, [1997]

O.J. No. 2055 (C.A.), at paras. 4 - 5.

[ 2 0 ] Fourth, a court is entitled to accept parts of a witness' evidence, reject other parts, and determine the appropriate weight accorded to different parts of the evidence: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

[ 2 1 ] Fifth, a determination of guilt or innocence must not, devolve into a mere credibility contest or choice between competing prosecution and defence witness evidence. This approach would negatively impact the presumption of innocence and the criminal standard of proof beyond a reasonable doubt: W.(D.), at p. 409; and Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87.

[ 2 2 ] Sixth, having regard to the principles in W.(D.), mere disbelief of the accused's evidence does not equate to criminal liability. It is an error to move directly from mere disbelief of the accused's evidence to a positive finding of guilt:

R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); and R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

[ 2 3 ] Finally, after considering the totality of the evidence at trial, if I am unable to decide whom to believe as between the prosecution witnesses and the defence witnesses, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, at para. 12; and R. v. Austin, 2006 CanLII 39077 (ON CA), [2006] O.J. No 4660 (C.A.), at para. 20.

B. Summary of Credibility and Reliability Findings

[ 2 4 ] Credibility is assessed overall, based on the entire record of the proceeding. In the reasons that follow I will detail the foundation of my credibility determinations.

[ 2 5 ] By way of high level summary, I generally accepted the evidence of Tarrick Brissett and Katiesha Brissett and found both witnesses to be credible and reliable on the core relevant considerations. I did find that there was some limited evidence of bias against the defendant in their overall evidence and presentation at trial. I did endorse some of the reliability issues (for example, things that these witnesses testified to at trial that were not in their statement to the police) submitted by defence counsel. The reliability concerns impacted my findings. The hint of bias caused me to be mildly cautious with the evidence of these witnesses. In the final analysis, I found both of these witnesses to be credible.

[ 2 6 ] I found Kadeja Hughes to be a credible and reliable witness. Her evidence on the dangerous driving on Brock Road was particularly probative. There were mild reliability concerns with her evidence that I will explain further in this judgment. These concerns did not significantly impact her credibility.

[ 2 7 ] I had both credibility and reliability concerns with Ashley Shura’s evidence. When testifying she displayed an obvious and transparent demeanor of bias against the defendant. I will explain further in this judgment why I was very cautious with her evidence, particularly in some areas where her testimony stood alone. To the degree I relied on her evidence I looked for corroboration.

[ 2 8 ] I did not have any credibility or reliability concerns associated with the investigating police officer’s testimony.

[ 2 9 ] I found defence witness Dwite Barriffe to be a credible and reliable witness. He testified in a straightforward manner and answered all questions directly and clearly. Notwithstanding his relationship with the defendant his testimony did not display any notable bias or undue influence. Minor reliability concerns did not impact his credibility in my view.

[ 3 0 ] Finally, I found the defendant to be largely incredible on several core areas relevant to criminal culpability. Demeanor is typically of limited assistance. But he did not present well as a witness when pressed on key issues, particularly during cross-examination. Nonetheless, I was able to rely on certain areas of his evidence sufficient to provoke reasonable doubt as I will explain further in this judgment.

IV. Dangerous Driving Northbound on Brock Road

A. Contact in Front of the Club

1. Evidence of the Defendant

[ 3 1 ] The defendant testified that he was invited to the club by his friend Dwite Barriffe and he arrived at about 1:00 AM. There was no conflict inside of the club. When leaving the club his friend was a few steps ahead of him and was chatting with a group of females. Someone in the group of females said something rude or harsh to his friend. He could not recall the specific words. Dwite Barriffe said something in response but he could not recall the specific words. He recalled telling his friend “Boy, just leave the fat girl alone!” and that his friend said “At least I drive a BMW!” at the complainant’s car as it drove by. The defendant testified that he and his friend left a few moments later and that he was not angered at all about the interaction.

2. Evidence of Dwite Barriffe

[ 3 2 ] The defendant’s friend and former co-worker Dwite Barriffe testified that when leaving the club he spoke with a female patron who he recognized as a frequent customer of the club. He complemented this female on her dance moves. This female took the comment well and simply said thank you. After this exchange he was confronted by a woman (who I find to be Ashley Shura) who insulted him and told him to leave the female alone. Ashley Shura also told him to take his

Uber home. Dwite Barriffe testified that he did not take the insult seriously and in response simply pointed at his BMW vehicle parked nearby and referenced the fact that he drove it. Contrary to the defendant’s testimony, Mr. Barriffe testified that he did not make any adverse comment to the complainants as they drove by in their vehicle.

3. Evidence of Tarrick Brissett

[ 3 3 ] Tarrick Brissett testified that Mr. Barriffe approached his sister seeking her phone number. After she turned him down he told Mr. Barriffe to shut up because he was bragging about his BMW car. Mr. Barriffe did not recall this in his testimony. Tarrick Brissett testified that there were no threats and it was a quick exchange.

4. Evidence of Katiesha Brissett

[ 3 4 ] Katiesha Brissett confirmed that she was approached by Mr. Barriffe and that her brother was having a conflict with another male at the front of the club

5. Evidence of Ashley Shura

[ 3 5 ] Ashley Shura testified that the defendant was upset by Tarrick Brissett putting down Mr. Bariffe and that the defendant threatened the group of complainants in front of the club.

6. Analysis: Contact in Front of the Club

[ 3 6 ] No criminal liability flows from the events that occurred at the front of the club as patrons flowed out in the early morning hours. Counsel produced a thorough record of the interaction in the front of the club perhaps because this was the genesis for later events -- the allegations of criminal conduct on Brock Road and in the McDonalds parking lot. This record also provided some basis to assess credibility and reliability of the witnesses.

[ 3 7 ] I found defence witness Dwite Barriffe to be credible and reliable. I accept his evidence that his interaction with Katiesha Brissett was without conflict and that it was complimentary towards her. It would appear that Ashley Shura escalated matters. I found Ashley Shura’s evidence in this area to be incredible and unreliable. She denied swearing, insulting Dwite Barriffe, or referencing an insult involving Uber. But these were things generally observed by her friends Tarrick Brissett and Katiesha Brissett. Ashley Shura is also the sole witness to testify that the defendant uttered threats in front of the club. I do not accept this evidence. In my view, Ashley Shura presented as a witness with transparent bias against the defendant.

[ 3 8 ] I did not find the defendant’s evidence to be credible about these circumstances in front of the club. It was evident that he sought to minimize his involvement in what was clearly a minor interaction.

[9]

[ 3 9 ] First of all, he sought to project physical distance when describing the position of Mr. Barriffe and the complainants in front of the club. He laboured over his precise physical movement towards and through the exit door of the club with detail that no reasonable person would possess. For example, he claimed to have a precise recollection of his exact position in relation to his friend as they moved towards the exit doors. He also testified that he did not see his friend at the door of the club or just outside the door of the club, and that he only observed him when he had fully emerged from the club.

[ 4 0 ] Second, when the defendant testified about the conflict at the McDonald’s he maintained that he did not initially draw a connection between the complainant group and what happened in front of the club. It was only during cross-examination that the defendant grudgingly conceded that he made a connection between the woman involved in the interaction in front of the club and the conflict at the McDonalds parking lot.

[ 4 1 ] Third, Dwite Barriffe was crystal clear that both he and the defendant were physically proximate to both the complainants and their vehicle. The defendant sought to project greater distance and resisted the obvious – denying that he observed the females or the male party in the complainant vehicle.

[ 4 2 ] Fourth, there was a manifest inconsistency between the defendant and Mr. Barriffe concerning the defendant’s testimony that Mr. Barriffe leaned over and directly engaged the complainant’s in their vehicle by making a comment about his BMW as the complainant’s vehicle passed. Mr. Barriffe was quite clear that this did not occur. This minor inconsistency between them attracted more attention because the defendant was placing Mr. Barriffe in the role as the primary protagonist – relegating the defendant to the background.

[ 4 3 ] Finally, when testifying, the defendant quarreled with the crown’s definition of what a “verbal exchange” meant and supported an unreasonable and illogical definition of same.

[ 4 4 ] In sum, the defendant evidently perceived there to be some advantage to distancing himself from the interaction in front of the club. He rather transparently sought to convey that he was not significantly involved in what I found to be a minor exchange. He thought it important to claim that he never saw Tarrick Brissett at the front of the club. Ultimately, the defendant failed to appreciate that his testimony was internally inconsistent with his testimonial stated purpose in hurling an insult towards one of the complainants (the fat girl comment). He was proximate enough and involved enough to hurl an insult.

[ 4 5 ] It is unclear precisely what happened in front of the club. Factual findings concerning what happened in front of the club are not directly relevant to the determination of criminal liability on the counts before the court. The Crown need not prove a motive sourced in the events in front of the club. In the end this area of examination by counsel simply provided a narrative beginning to the allegations

and provided a platform for the assessment of the credibility and reliability of the witnesses at trial.

B. Driving Northbound on Brock Road

1. Evidence of the Defendant

[ 4 6 ] The defendant testified that nothing happened during his drive between leaving the club and arriving at the McDonald’s parking lot near Pickering Parkway. While driving north on Brock Road, there were a few other vehicles, but there was simply no interaction with any other vehicle or person. In particular, the defendant did not have contact with the complainant vehicle.

2. Evidence of Dwite Barriffe

[ 4 7 ] The defendant’s friend left the club at the same time as the defendant and proceeded in the same direction but parted ways with the defendant at the traffic lights on Brock Road prior to the bridge over the 401. This location is far from Pickering Parkway. He was not in a position to observe any interaction between the defendant and the complainant vehicle. He testified that he did not look back once he passed the defendant.

3. Evidence of Tarrick Brissett

[ 4 8 ] Tarrick Brissett was seated in the rear passenger seat behind the driver. He described the defendant’s vehicle being operated in a dangerous fashion on Brock Road near Pickering Parkway. He explained that as the complainant vehicle proceeded northbound in the curb lane the defendant sped up and came along- side the driver’s-side of the complainant vehicle. The defendant was angrily yelling that they had cut him off. The defendant uttered a threat to kill twice and Tarrick Brissett believed the threat was directed towards him. As a result he yelled back: “If you want to kill me come kill me”. Tarrick Brissett was angry that they were being threatened. As the only male in the vehicle he felt protective of his sister and friends. As they approached Pickering Parkway, the defendant sped up alongside the complainant vehicle, pulled out in front of the complainant vehicle, and slammed on his brakes.

4. Evidence of Katiesha Brissett

[ 4 9 ] Katiesha Brissett described the defendant accosting them as her vehicle she changed lanes into the curb turning lane to proceed right on Pickering Parkway. The defendant had the passenger side window down on his car and was yelling threats and claiming that they had cut him off. His vehicle was keeping pace with their vehicle going approximately 55 to 60 KM per hour. There was a lot of yelling and confusion. She described how the defendant’s vehicle accelerated, moved in front of their vehicle, and then the defendant slammed on his brakes.

She told Kadeja Hughes to keep driving and as a result she drove out to the left, around the defendant’s vehicle, and continued on their way to Pickering Parkway. All the while the defendant’s vehicle tailgated them. They turned right on Pickering Parkway and left into parking lot where the McDonald’s was situated. During these events she heard her brother say to the defendant “Who are you? Leave us alone!” The defendant was saying “I am going to kill you; I am going to get you” in a loud and angry tone. Her brother challenged “Come at me then!”.

5. Evidence of Kadeja Hughes

[ 5 0 ] Kadeja Hughes was the driver of the complainant vehicle. She described proceeding northbound on Brock Road over the bridge to the 401 where she indicated a lane change and moved from the middle lane to the curb lane. A few seconds later a vehicle came up beside her vehicle on the driver’s side. The defendant had lowered the passenger side window and was yelling through the window that she had cut him off. He was animated, yelling, and swearing at her.

[ 5 1 ] The defendant’s vehicle moved behind her in the right hand turning lane as she approached Pickering Parkway. The vehicle was following too closely and riding her bumper such that she could not even see his headlights. Then the vehicle pulled out, passed her quickly, and cut her off just in front of a traffic island. The defendant slammed on his brakes. She had to swerve out to the left to avoid a collision with the rear of his vehicle. Thereafter she was able to return to the curb lane before turning right on Pickering Parkway.

6. Evidence of Ashley Shura

[ 5 2 ] This witness first noticed the defendant’s vehicle as they were travelling northbound on Brock Road at the point when he began trying to overtake their vehicle. The defendant was yelling through the window and appeared to be staring at Tarrick Brissett and appeared to be focused on him. She could not make out what he was saying in detail. As they approached Pickering Parkway in the curb lane the defendant’s vehicle was “literally right on their backend”.

V. Dangerous Driving: The Law

A. Introduction

[ 5 3 ] The proper approach to the criminal offence of Dangerous Driving has attracted significant appellate guidance as trial courts have grappled with the difficult analysis involved. As a result, this court has an obligation to clearly set out the law and the relevant analysis.

B. Penal Negligence

[ 5 4 ] Penal negligence, as distinct from civil negligence, is focused on punishment of blameworthy conduct: R. v. Beatty, 2008 SCC 5, at para. 6 [Beatty].

[ 5 5 ] Fundamental principles of criminal justice and penal negligence require that the Crown establish conduct that deviates from the norm and the mental intent of the defendant in support of a criminal conviction: (Beatty, at para. 6; and see discussion at paragraphs for the rationale in support of this approach at paragraphs 18-28). Given the fact that driving is a regulated and licensed activity, it is appropriate to apply an objective test subject to two important caveats: the “marked departure” test and the allowance of exculpatory defences sourced in the subjective mindset of the driver: Beatty, at paras. 33-49

[ 5 6 ] The “modified objective test” is appropriate for dangerous driving offences because it modifies the purely objective standard for civil negligence such that there must be a “marked departure” rather than a “mere departure” from the civil standard expected of a reasonably prudent person: Beatty, at paras. 7; 29-32.

[ 5 7 ] Furthermore, the modified objective test provides for a contextual analysis of the mental state of the defendant. Objective mens rea – the notion that a reasonable person in the defendant’s position would have been aware of the risks

– is tempered by the allowance of a reasonable doubt as to whether a reasonable person in the circumstances would have been aware of the risk arising from the conduct and provides for defenses including incapacity and mistake of fact: Beatty, at para. 8.

C. Dangerous Driving: Actus reus

[ 5 8 ] The actus reus is determined by the wording of the provision in the Criminal Code, not by reference to the civil standard of negligence. As explained in Beatty at paragraphs 43-45 (see also R. v. Roy, 2012 SCC 266, at paras. 28,33-35 [Roy]; and R. v. Laverdure, 2018 ONCA 614, at para. 20 [Laverdure]):

[t]he trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[ 5 9 ] The analysis of actus reus requires a determination of the manner of driving, placed within the context of all of the circumstances, to determine whether or not the manner of driving constituted a danger to the public: Laverdure, at para. 22. The manner in which the vehicle was operated is the focus – not the consequence of driving: Beatty, at para. 46; R. v. Romano, 2017 ONCA 837, at paras. 65-72 [Romano]. If the actus reus is not made out on the evidentiary record there is no need to analyze the mens rea. If the actus reus is made out the trier of fact must

go on to consider evidence, if any, of the subjective mindset of the defendant:

Beatty, at para. 49.

[ 6 0 ] It is an error to move directly from a conclusion that the driving was “dangerous” to a finding that such driving constitutes a “marked departure”. The trial judge must explain how and in what way the driving went beyond negligence or carelessness and therefore reached the level of a marked departure from the standard of care that a reasonable person would have exhibited: Roy, at para. 30; Laverdure, at para. 25; and R. v. Reynolds, 2013 ONCA 433, at para. 18.

D. Dangerous Driving: Mens rea

[ 6 1 ] The Court in Beatty also restated the requisite mens rea at paragraph 43 (see also Laverdure, at para. 23; and Roy, at paras. 28; 36-38):

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[ 6 2 ] The prosecution is not required to prove a subjective form of mens rea or a positive state of mind (e.g. intent, recklessness, or wilful blindness): Beatty, at para. 47. In circumstances where it is established that the operator purposefully maneuvered the vehicle (e.g. purposefully drove into the path of an oncoming vehicle) in a manner captured by the criminal code provision, it may be open to find that subjective mens rea exists but subjective mens rea is not an element of the offence: Beatty, at paras. 47-48.

E. Marked Departure

[ 6 3 ] Criminal law mandates proof of a “marked departure” rather than the civil standard of a “mere departure” from the standard expected of reasonable persons: Roy, at para. 1; Beatty, at para. 33. The addition of this “marked departure” component to the modified objective test ensures that objective circumstances of driving dangerously as contemplated in the Criminal Code provision are accompanied by the presence of sufficient mens rea to determine that the offence has been proven: Beatty, at para. 36.

[ 6 4 ] While the civil standard ignores the mental state of the driver (except as it concerns punitive damages), the criminal standard requires careful consideration of the mental state to ensure that the driving conduct is deserving of criminal punishment: Beatty, at para. 35. Thus, it is appropriate that the prosecution be required to prove a marked departure from the standard of care that a reasonable person would observe in the circumstances: Beatty, at para. 36.

[ 6 5 ] Evaluation of the issue of a “marked departure” involves drawing inferences from all of the circumstances including any available evidence about the defendant’s actual state of mind: Roy, at paras. 39 -40

F. Exculpatory Defences

[ 6 6 ] Criminal law also mandates a contextual analysis with due consideration of any exculpatory defences to ensure that the offence is constitutionally compliant: Beatty, at para. 37.

[ 6 7 ] The premise that a reasonable person in the position of the defendant would have been aware of the risks associated with driving and would not have engaged in such conduct may not be sustainable on a contextual analysis of all of the circumstances: Beatty, at paras. 37-38. In such circumstances, (examples which the Court cited from R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867) a reasonable person would not have been aware of the risk or would not have been able to avoid creating the danger. It is unjust to find such persons criminally blameworthy.

VI. Dangerous Driving Northbound on Brock Road:

A. Actus Reus

[ 6 8 ] I make the following specific findings with respect to the actus reus:

a. The complainant vehicle proceeded northbound on Brock Road in the curb lane after leaving the club;

b. The complainant vehicle changed lanes to the right hand turning lane for Pickering Parkway;

c. The defendant’s BMW X5 SUV vehicle began to follow the complainant’s vehicle too closely and was riding the bumper of the complainant’s vehicle;

d. The defendant sped up to approximately 55 KM and moved out to the left parallel with the complainant vehicle;

e. The defendant was yelling and screaming at the occupants of the complainant vehicle while maintaining a parallel speed of approximately 55 to 60 KM per hour;

f. The defendant suddenly moved to the right in front of the complainant vehicle thereby “cutting off” the complainant vehicle;

g. The defendant slammed on his brakes;

h. The complainant vehicle swerved out to the left to avoid a collision;

i.

The complainant vehicle drove around the defendant’s vehicle back into the turn lane for Pickering Parkway;

j.

The defendant’s vehicle began tailgating the complainant’s vehicle again; and,

k.

There were no road conditions, weather conditions, or mechanical issues impacting the defendant’s ability to operate his vehicle.

[ 6 9 ]

Identification of the defendant has been conceded. I am satisfied beyond

a reasonable doubt that the vehicle described by the prosecution witnesses was operated by the defendant and he followed them into the McDonalds parking lot off of Pickering Parkway.

[ 7 0 ] I reject the defendant’s testimony that there was no contact with the complainant vehicle northbound on Brock Road for several reasons.

[ 7 1 ] First, even on the defendant’s evidence he used Brock Road to arrive at the McDonald’s parking lot. Second, Dwite Barriffe passed the defendant’s vehicle at the lights prior to the bridge to the 401. The dangerous driving occurred at Pickering Parkway – on the other side of the 401 bridge, some distance away. As such, Dwite Barriffe was not in a position to observe the incident. Probative of his credibility he did not attempt to suggest that he was in a position to observe any interaction between the complainant vehicle and the defendant’s vehicle. But, even the defendant’s friend confirms that the defendant proceeded northbound on Brock Road. Third, the defendant cites the fact that the complainant’s did not immediately call the police or other friends for help on Brock Road as support for the improbability of their account. The defendant argues that if the events occurred as described by the prosecution witnesses then someone would have called the police or alerted other friends in the area. In my view, this is not important. People react differently to events. The events on Brock Road were not protracted.

[ 7 2 ] Fourth, I do not agree with the defendant’s argument that the complainant’s colluded to present a cohesive fabricated account. I do not find that the evidence of the prosecution witnesses has been contaminated by collusion. There are differences and omissions when considering the civilian witness evidence as a whole. For example, Katiesha Brissett was the only witness to testify that her brother called the defendant a “bean-head” at the club. I do not think this happened. Ashley Shura testified that Tarrick Brissett was not even present at the front of the club. I believe that he was indeed present at the front of the club. Ashley Shura was the only witness to testify that the defendant was driving like a maniac prior to approaching the rear of their vehicle. Other witnesses simply observed tailgating. Finally, the prosecution civilian witnesses were inconsistent when describing an alleged threat or threats uttered by the defendant. For reasons I will explain later on, this has resulted in an acquittal on the threatening count. Were these witnesses intent on fabricating evidence or otherwise colluding against the defendant, speaking with one voice about the threat would have been an easy

focus point. I have done my best to synthesize a vast detailed record produced by counsel and I simply cannot agree that the witnesses colluded.

[ 7 3 ] Each prosecution witness described the maneuvers of the defendant in a slightly different but immaterial fashion. Each witness had varying levels of detail. This was not a collusive presentation of the evidence. The driver Kadeja Hughes had the most detail about the maneuvers of the defendant’s vehicle. I found her evidence to be very detailed and highly probative. She was specific, logical, and did not manifest bias toward the defendant when testifying. I find that when Tarrick Brissett and Katiesha Brissett testified the weight of their evidence was impacted very slightly by some indications of bias towards the defendant as displayed by demeanor. But these minor displays were not critical when evaluating the overall credibility and reliability of Tarrick Brissett and Katiesha Brissett. It was natural and understandable that perhaps Tarrick Brissett felt a more protective role as the only male party in the group. It is also natural and understandable that a brother and sister would exhibit protectiveness towards each other when testifying. Ashley Shura did not have much detail. But her evidence overall was tainted by manifest bias towards the defendant. I did not attach much weight to her evidence and if I did I looked for external corroboration. This record does not support collusion on the part of the prosecution witnesses.

[ 7 4 ] Fifth, I am not perturbed by the lack of definitive evidence from Kadeja Hughes that she cut off the defendant. She could have inadvertently cut off the defendant. In any event, the prosecution need not prove that this occurred to sustain the defendant’s guilt. In a similar vein I am not put off by the fact that on the evidence of the complainant’s, the defendant appeared to single out Tarrick Brissett notwithstanding the complaint appeared to be that Kadeja Hughes had cut him off. The defendant’s position is that none of this happened. He has no contrary version for me to consider. The evidence of the prosecution witnesses provides context for why the defendant continued the event by following them into the McDonald’s parking lot.

[ 7 5 ] Finally, the central conclusion I have reached in this case is that the defendant followed the complainant’s into the McDonald’s parking lot and continued the conflict. While the McDonalds restaurant was really the only restaurant open, and I accept the defendant’s testimony that it was not unusual for him to attend this restaurant, it is no mere coincidence that he arrived moments after the complainant vehicle and parked next to that vehicle despite the vast array of available parking locations in the large parking lot. He followed the complainant vehicle into the parking lot after the conflict on Brock Road. It is not a coincidence that he arrived at the MacDonald’s parking lot proximate in time to the complainant’s arrival, parked beside them, and then engaged them further.

[ 7 6 ] It is quite clear on all of the evidence that both the defendant and the complainant vehicles left the same club, took the same route northbound on Brock Road, and arrived at the McDonalds parking lot at essentially the same time. The circumstances involving the interaction in front of the club, the movement

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northbound on Brock Road, and the contact in the McDonald’s parking lot were very close together in time and distance. This close temporal timeframe and sequence of events belies the defendant’s claim of non-involvement in matters on Brock Road.

B. Mens rea

[ 7 7 ] The defendant testified that he did not have any contact with the complainant vehicle northbound on Brock Road. Directly and inferentially his version of events negates any possibility that the offence of dangerous driving occurred. If I believed this testimony, or harboured a reasonable doubt I would be obligated to register an acquittal. I do not believe the defendant’s evidence for several reasons. I am not in a state of doubt.

[ 7 8 ] I have outlined the actus reus concerning the dangerous driving on Brock Road. I find that he was indeed present northbound on Brock Road. I do not believe his denial.

[ 7 9 ] Focusing on the mens rea, I have only the defendant’s testimonial blanket denial. As a result: (1) there is no exculpatory alternative version for me to weigh;

(2) there is no room for me to credit him by imputing to the complainant’s a misunderstanding or misperception of the important events; and (3) there is no subjective mindset of the defendant to analyze with a view to his criminal blameworthiness. The defendant’s blanket denial that he was even present northbound on Brock Road leaves me with no evidence from him that is probative on the issue of mens rea. Often there are at least two sides to the typical “road rage” type incidents addressed commonly in criminal courts. The defendant denies even being present for this portion of the allegations. As such, there is no insight into his mental state or how he evaluated the circumstances. There is no evidence from the defendant that might mitigate the findings reliant on the evidence of the prosecution witnesses. One might imagine a defence position that posits presence at the scene but denies culpable acts or the extent of the culpable acts alleged by the complainants. This state of affairs is critical given the application of the modified objective test providing access to exculpatory evidence or a lack of criminal mens rea.

C. Conclusion

[ 8 0 ] The prosecution must establish beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances

ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[ 8 1 ] Determining whether or not the elements of the offence of dangerous driving are present is not necessarily informed by the fact of injury, or death. This court must explain how and in what way the driving went beyond mere carelessness or civil negligence as it is an error to move from a bare conclusion that the driving was dangerous to a finding that such driving constitutes a “marked departure”.

[ 8 2 ] The central reason why the defendant’s conduct on Brock Road. meets the test for dangerous driving is because I find that the driving he exhibited was deliberate or intentional and I reject his denial of involvement. However, simple rejection of the defendant’s evidence is not sufficient to sustain a criminal conviction. I must go further and consider whether the evidence I accept from the complainant’s supports a criminal conviction.

[ 8 3 ] The prosecution has established dangerous driving beyond a reasonable doubt. In coming to this conclusion I am mindful that individuals driving in the GTAA every day perhaps experience similar conduct “bad driving”. I am also mindful that much of this type of conduct may even escape the purview of criminal courts unless reported to the police. Reports to the police are often in the aftermath of injury or vehicular accident. But this does not mean that this type of intentional driving conduct necessarily escapes criminal examination. There were four persons in the complainant’s vehicle. I do not need expert evidence or a witness from BMW to tell me that a BMW X5 SUV is a large sport utility vehicle. The defendant deliberately engaged the complainant vehicle in the manner I have outlined in this judgment. There is no exculpatory defence to consider. As I have outlined above, there is no subjective mind set for me to consider when applying the modified objective test. This leaves the Court in the position of simply evaluating the driving conduct and drawing an inference with respect to the presence or absence of the requisite mens rea.

[ 8 4 ] While at the lower end of the spectrum of dangerous driving often seen in criminal courts, the defendant’s deliberate conduct and acts were in fact a “marked departure from the norm”. No reasonable person in his circumstances on the evidentiary record placed before this Court would act in this fashion. The hypothetical reasonable person would not tailgate, drive at high speeds while yelling out the window, cut off the complainant vehicle, and slam on the brakes risking a serious collision. But for Kadeja Hughes taking evasive action there would have been a collision.

VII. Dangerous Driving in the McDonald’s Parking Lot

A. Evidence at Trial

1. Evidence of the Defendant

[ 8 5 ] The defendant testified that he attended the McDonald’s parking lot to obtain some food from McDonald’s. This was not unusual for him, he would at times obtain food from this particular restaurant for his family. It was also not unusual for him to attend this McDonalds after having attended the club as it was one of the only restaurants open at that late hour. He testified that he was familiar with the area. He shopped for groceries at the Sobeys, he had shopped several times at the Blue Sky grocery store, and he had attended this McDonald’s in the past. He entered the McDonald’s parking lot from Pickering Parkway and specifically testified that this was the way he customarily entered the McDonald’s parking lot.

[ 8 6 ] Upon arrival in the parking lot there were already some cars parked and it was moderately busy. He parked his vehicle in one of four rows of parking and marked this general area on an exhibit showing the layout of the parking lot.

[ 8 7 ] The defendant explained that he did not customarily access the drive thru at McDonald’s because he generally worked nights and the drive thru was busy at night. He got out of his vehicle and was on his way towards the McDonald’s restaurant when he heard someone say something loudly behind him. At this time there were several people hanging around the parking lot, both inside and outside their vehicles. He turned around to say “What’s going on?” He walked towards the vehicle next to his vehicle and a female person whom he initially said he did not recognize got out of the car and started pointing her finger in his face. He later testified that he thought it was one of the females from the bar. He testified that he could not remember what she was shouting but she was rude. He put his hands up in front of him and said “Whoa! Whoa! Whoa!” while retreating away from the female’s vehicle. Then someone grabbed him from behind and he was thrown to the ground. Thereafter the female party lunged aggressively at him.

[ 8 8 ] The defendant explained that at this point he was engaged in a physical altercation with a male person. This person then knelt on top of him and was punching down towards his face. He was struck on both sides of his temple and was holding his face trying to avoid being hit. This male somehow was removed from on top of him and then took off his shirt and started walking around angrily and flexing and coming back towards him. At the time he was grabbed from behind he did not know who had assaulted him. By the time of trial it was clear that the person was Tarrick Brissett

[ 8 9 ] The fight lasted perhaps 30 seconds. Afterwards, he got up and went towards an unknown male party who was present and offered his hand to shake hands as a gesture of peace. The defendant was evidently quite hurt when this

uninvolved unknown male party declined to shake his hand as during his testimony he became a bit emotional when describing this portion of the events. The defendant testified that someone was telling him to leave or they would call the police. He testified that he had taken a few blows and just wanted to get out of area. He also testified that he did not want to interact with the police.

[ 9 0 ] The defendant acknowledged entering his car and driving at a fast speed because he wanted to leave. He used Exhibit 2 and drew the pathway he followed to leave the premises. He testified that he “looped” between some cars and there were some people “hanging there” and given the direction he was driving these people had to move out of the way. He tried to leave through the same driveway that he had used to enter the McDonald’s parking lot but claimed that too many cars were blocking the entrance trying to get in and he could not get out that way. As a consequence he continued in a circle through the parking lot and left through a north exit. During direct examination the defendant was adamantly clear that at no time did he hit anyone or anything. He was only concerned with leaving the parking lot.

[ 9 1 ] The defendant testified that he left the parking lot via the north exit and travelled for about 15 to 20 minutes to his home. He parked his car on the grass next to his house as is his custom (he claims) when his driveway has parked cars (see Exhibit 4). It was only when he was checking his vehicle’s positioning on the grass that he noticed damage to his vehicle. He assumed that someone had vandalized his vehicle. Shortly thereafter a police officer arrived at his home. At the police station his head was throbbing and his vision was blurry and he sought medical attention.

2. The evidence of Tarrick Brissett

[ 9 2 ] Tarrick Brissett testified that defendant followed them into the parking lot and parked in the spot next to their vehicle. The defendant got out of his vehicle, immediately approached his window (rear passenger driver’s side), and tried to choke him through the window. The defendant was using his right hand on his neck area. He was trying to push the defendant’s hands off of him and was able to do so given the lack of pressure exerted by the defendant. The defendant was saying phrases such as “You caused this” and “I’m going to get you”. These events were moving very quickly in his mind.

[ 9 3 ] Tarrick Brissett testified that his sister was at the area of his window as well yelling “Don’t touch my little brother!”. His sister was scuffling with the defendant. He saw that they both had a grip on each other. He saw her push the defendant off. He also heard her say “Why would you hit me” so he immediately got out of the car to help his sister. Thereafter he and the defendant engaged in a physical fight. He punched the defendant in his face twice. The defendant tried to throw him on the ground and bit him on his chest. The fight was broken up and he was restrained by friends.

[ 9 4 ] Tarrick Brissett testified that the defendant was angry and said “he had something” for him and proceeded to get into his vehicle. He saw the defendant drive his vehicle in a loop around the parking lot trice. The first time the defendant drove very fast back towards the McDonald’s at a high rate of speed missing him by approximately 30 cm. Had he not jumped out of the way, the vehicle would have struck him. The second time, the defendant said “I am not done yet”, reversed his vehicle, and re-aimed his vehicle towards him and drove straight at him. He was stuck in between two parked vehicles and could not get out of the path of the defendant’s vehicle. He jumped as high as he could to his left (which was the right side or passenger side of the BMW) but the defendant’s vehicle hit him. The front grill of the BMW X5 struck him on his lower legs and knees. The contact from the vehicle caused his legs to spin to the side and hit the car next to him. He rolled over the defendant’s vehicle and landed on the ground. He recalled his sister calling the police and yelling that she had the licence plate of the vehicle. The defendant then sped out of the parking lot.

[ 9 5 ] Tarrick Brissett testified that when he gave his hand written statement to the police he was still in a state of shock and was receiving medical treatment. He identified a number of photos depicting the injuries to his legs and a bite mark on his chest.

3. The evidence of Katiesha Brissett

[ 9 6 ] Katiesha Brissett testified that defendant’s motor vehicle was behind them as they entered the Plaza and followed as their vehicle went to park in the fourth row of available parking spots across from the drive thru.

[ 9 7 ] The defendant parked his vehicle right next to them on the passenger side. The defendant got out of his vehicle and without any preliminary contact immediately went around behind the car, to the rear driver’s side of her vehicle where her brother was sitting and confronted him. She testified that she got out of the vehicle as the defendant was heading towards her brother.

[ 9 8 ] The defendant was trying to grab her brother through the window with one arm so she pulled the defendant by the right shoulder on his shirt. The defendant reached out as if to choke her and put his hand on her throat. She knocked his hand down and said “what the fuck are you doing” and continued trying to pull him away from her brother. She was telling him to “Get off!” and pulling him by his shirt.

[ 9 9 ] A crowd of about 10 people formed in the area of the McDonald’s parking lot. The occupants of her vehicle were yelling and screaming at the defendant. She heard the defendant say he is going to get her brother. The defendant got in his vehicle drove away towards an exit, and then came back towards them at approximately 60 km/h. He drove in three or four circles around the parking lot in this manner during which people in the parking lot were running out of the way. The defendant drove his BMW X5 SUV at her brother. She was at the front

passenger side of her vehicle when she saw the vehicle strike her brother and he tumbled over the vehicle. In the aftermath, her brother was angry and screaming “You hit me with your fucking car!” She saw the saw the defendant looking back through the window of his vehicle. She took out her phone to call 911 and then repeatedly screamed out the license plate of the defendant’s vehicle. The defendant drove north from the McDonald’s parking lot and left the area.

4. The evidence of Kadeja Hughes

[ 1 0 0 ] Kadeja Hughes testified that after the interaction on Brock Road, the defendant’s vehicle arrived at the McDonalds parking lot and parked one or two parking spaces away from her vehicle. This despite the fact that there were many other spots available. She saw the defendant get out of his vehicle and go directly to confront Tarrick Brissett without any provocation. The defendant was putting his hands in the window of her car trying to get at Tarrick Brissett

[ 1 0 1 ] Kadeja Hughes did not observe any physical confrontation between Katiesha Brissett and the defendant but did hear Katiesha Brissett complain that the defendant had punched her in the face.

[ 1 0 2 ] Thereafter the defendant and Tarrick Brissett engaged in a physical fight. Everyone was yelling for them to break it up and ultimately some individuals in the crowd broke up the fight.

[ 1 0 3 ] At the end of the fight the defendant said -- “I am going to kill you kids” -- as he went back to his vehicle. The defendant began to drive away from the McDonald’s so originally she thought he was going to leave. Instead, the defendant made a quick U-turn at approximately 50km or 60 km near All-Star Wings and sped back towards the McDonalds. The defendant was driving recklessly in between cars and individuals in the parking lot. He made four loops around the parking lot going between 60 and 80 km an hour between the cars. He was yelling and laughing. He would drive towards persons and then swerve out at the last moment trying to make it seem like a joke.

[ 1 0 4 ] On one of these maneuvers Kadeja Hughes testified that he even came close to her and almost struck her with his vehicle. Finally, Ms. Hughes saw the defendant drive directly into Tarrick Brissett striking him in the leg area as he jumped to get out of the way. At the same time the defendant’s vehicle struck and broke off her driver’s side mirror. She began yelling out his licence plate as he drove north out of the parking lot and left the Plaza. When asked, Ms. Hughes was clear that there was no traffic preventing the defendant from leaving via the entrance to the McDonald’s parking lot.

5. The evidence of Ashley Shura

[ 1 0 5 ] This witness saw the defendant come out of his car leaving his driver’s door open and came directly to physically confront Tarrick Brissett. The defendant was

yelling and trying to hit through the window at Tarrick Brissett but he was not able to fully access Tarrick Brissett because of the window.

[ 1 0 6 ] This witness testified that she observed the defendant punch Katiesha Brissett on her jaw. Then Tarrick Brissett got out of the car and started fighting the defendant. After the fight was over this witness saw the defendant get into his vehicle and perform four or five reckless circuits in the parking lot. He was driving “like a crazy person” and came close to hitting other individuals in the parking lot. Mall patrons were “freaking out” as a result of this behaviour. During one of these maneuvers the defendant came within centimeters of striking Kadeja Hughes

[ 1 0 7 ] Thereafter, this witness testified that she saw the defendant hit Tarrick Brissett with his car. Tarrick Brissett was near the front end of the complainant vehicle on the driver’s side. The defendant drove at him. Tarrick Brissett jumped as high in the air as he could to avoid being run over (in her mind) but he was still struck by the vehicle. As the defendant drove into Tarrick Brissett he also struck the complainant vehicle as well. In the aftermath Tarrick Brissett got up and was pacing around screaming and upset.

B. Analysis: Dangerous Driving in the McDonald’s Parking lot

[ 1 0 8 ] I am satisfied beyond a reasonable doubt that the defendant committed the offences of dangerous driving and assault with a weapon in the McDonalds parking lot by deliberately driving his vehicle at and striking Tarrick Brissett.

[ 1 0 9 ] My findings are driven by a number of factors concerning these central allegations in this case. While the criminal burden of proof is not applied to individual facts, I have considered the defendant’s testimony, the testimony of the prosecution witnesses, and my overall credibility and reliability considerations, in arriving at my factual findings.

1. Claimed lack of awareness of the complainant’s vehicle

[ 1 1 0 ] Despite having witnessed a minor incident involving his friend and the complainant’s and despite having participated in this minor conflict by insulting a female, the defendant claimed no awareness of the complainant vehicle in the McDonalds parking lot minutes later. He further denied any contact with the vehicle on Brock Road. I have already explained why I rejected his evidence on this point and found him criminally liable for dangerous driving on Brock Road.

[ 1 1 1 ] The defendant tried to convey a stance that distanced him from the interaction at the club, the interaction on Brock Road, and ultimately imbued him with innocent attendance at the McDonald’s parking lot. I reject this evidence.

2. Arrival at the McDonalds Parking lot

[ 1 1 2 ] I have already explained why I am satisfied that the defendant interacted with the occupants of the complainant vehicle northbound on Brock Road and why I find that the defendant followed the complainant vehicle into the parking lot and that he parked proximate to the complainant vehicle. I do not believe the defendant’s evidence that it is mere chance or circumstance that caused his vehicle to be proximate to the complainant vehicle. This was a continuation of the conflict on Brock Road. The location of the dangerous driving on brock road was within metres of the McDonald’s parking lot. The defendant followed the complainant vehicle into the parking lot and parked close by on purpose. There was a vast parking area in front of the McDonalds. While the parking lot was starting to fill up after the Club let out, there were approximately 5 rows of parking containing approximately 40 parking spaces in each row. The defendant had perhaps 150 parking spots to choose from. I do not believe his evidence that his randomly selected parking spot just happened to be next to the complainant’s vehicle.

[ 1 1 3 ] On the defendant’s version of events it was coincidence that he attended the same McDonald’s parking lot (to obtain food). It was also coincidence that he parked in close proximity to the complainant’s vehicle. While I agree with the defence position that there was nothing culpable about the defendant attending the parking lot to obtain some food or his peculiar drive thru practices, it was no mere coincidence that he parked close to the complainant vehicle.

3. The defendant tried to distance himself from a finding that he was familiar with the McDonalds Parking lot

[ 1 1 4 ] There is a pattern to the defendant’s testimony relevant to his credibility. I have explained how he tried to distance himself from the genesis of the incident in front of the club. I have explained why I rejected his blanket denial of any contact with the complainant vehicle northbound on Brock Road. The defendant continued this theme when he testified about the McDonalds parking lot – suggesting he was unaware of the presence of the complainant vehicle in the parking lot and that his proximity to the complainant vehicle was mere happenstance. The defendant continued this theme by testifying that he was not familiar with the McDonald’s parking lot and that traffic impeded his egress from the parking lot after the physical confrontation with Tarrick Brissett. The defendant evidently perceived that these twin attestations were relevant support to his evidence that he never committed the offence of dangerous driving in the parking lot. His position is that the looping around the parking lot was due to his egress being blocked by traffic.

[ 1 1 5 ] I do not believe the defendant’s testimony in this crucial area of evidence.

[ 1 1 6 ] First of all, I have an excellent appreciation of the particular location because: (i) it is located in a high traffic area of this jurisdiction featured in many other proceedings in court; (ii) I am able to take judicial notice of locations familiar

to me and I put the parties on notice that this was so; and (iii) Google maps of the location are exhibits. The objective reality is that there was ample room to travel in this parking lot. There were several ways to leave the area where the conflict occurred. The entrances are wide and permitting of both entering and exiting traffic. I do not believe the defendant’s testimony that circling the lot was due to volume of traffic.

[ 1 1 7 ] Second, I know that the defendant lived close to this location courtesy of the exhibits at trial. The defendant testified that he had been a resident for five years. He had attended the McDonalds before. He had attended the Sobey’s grocery store. He did his grocery shopping at the Blue Sky nearby. He was familiar with this location. He would be aware of the multiple entrances and exits.

[ 1 1 8 ] Third, when presented with an exhibit showing the location the defendant argued with the Crown Attorney over the location of Pickering Parkway and Brock Road. Notwithstanding these locations were clearly marked on the exhibit he would not even reasonably acknowledge that which was plainly indicated on the Google map. His challenge to the Crown Attorney in this area was disingenuous and insincere. He was merely being argumentative with counsel in support of his agenda – to present that he was not familiar with the parking lot area.

4. The defendant immediately pursued an innocuous stimulus

[ 1 1 9 ] The defendant testified that a loud communication from the complainant vehicle prompted him to proceed towards the vehicle and communicate an impolite response. He testified that he had no idea who said something, what words were used, the tone of the language, or the content of what was said. Notwithstanding his observation that there were several other vehicles and persons in the parking lot, he concluded that the communication was directed solely at him. He approached the vehicle to say “Excuse me!”. During cross-examination he expanded on this purpose and indicated that it was not his intent to convey the phrase in a polite manner. The “Excuse me!” was expressed in an indignant manner is how I understood his evidence.

[ 1 2 0 ] Frankly, the defendant’s testimony in this area was tortured. He was asked common sense questions by the prosecutor and he contorted and twisted. Ultimately, to the extent that I can make sense of the defendant’s evidence, I believe the defendant testified that notwithstanding he had no idea what was said he determined or concluded that the comment or comments were rude and vulgar because it was loudly expressed. This shift in his evidence occurred during cross- examination.

[ 1 2 1 ] I do not believe that the defendant’s everyday approach to an unintelligible communication from an unknown source in a parking lot is to approach and investigate with stated indignation. He had no reason to walk towards a car he claimed not to recognize to address something that was said that he could not hear. I believe that his evidence is more consistent with an ongoing

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conflict. The simple reality is that the defendant parked his car and sought out a conflict with the complainant vehicle. He knew this was the same vehicle from the club, the same vehicle he followed in from Brock Road, and precisely the same vehicle he parked beside

5. First contact

[ 1 2 2 ] I generally accept the helpful analysis of the defendant’s evidence provided by defence counsel in paragraph 28 of his written submissions. I also accept that the defendant was familiar with the McDonald’s restaurant, it was not unusual to attend the McDonald’s restaurant, and the defendant’s general practice was to avoid the drive-thru because he works nights.

[ 1 2 3 ] The defendant testified that he was accosted by Katiesha Brissett who approached him from the complainant vehicle and started wagging her finger in his face. I accept this evidence notwithstanding the testimony of the prosecution’s civilian witnesses. Defence counsel illuminated during cross-examination that Kadeja Hughes never put in her statement to the police that the defendant’s contact with Tarrick Brissett occurred at the car window. Kadeja Hughes is also clear that Katiesha Brissett got out of the car and confronted the defendant. I prefer the version of events provided to the police as per defence counsel’s submission.

[ 1 2 4 ] Furthermore, notwithstanding adverse credibility findings concerning the defendant, I accept the defendant’s testimony that the conflict occurred proximate to the complainant vehicle but not precisely at the car window where Tarrick Brissett was sitting. While Ms. Hughes provided an explanation for why this important detail was absent from her police statement and denied aligning her evidence with the other complainants, this circumstance was sufficient to diminish the weight I accorded this evidence.

[ 1 2 5 ] Lastly, I accept the defendant’s evidence that Tarrick Brissett and his sister approached him as he made his way towards their vehicle. In this area of testimony the defendant’s recount was logical and made sense to me. These findings are important in the analysis of the assault allegations concerning Tarrick Brissett and Katiesha Brissett that I will outline later on in this judgment.

6. Physical confrontation with Tarrick Brissett

[ 1 2 6 ] Tarrick Brissett made no secret of his intentions during the physical confrontation with the defendant. The defendant had engaged in reckless maneuvers on Brock Road and had now followed them into the parking lot. As the only male, this witness felt a responsibility to protect his female companions. When testifying this witness did not attempt to diminish or minimize his physical interaction with the defendant. Reflecting on this area of evidence the defendant’s approach was to convey that he was victimized. He further would not admit that he bit the complainant during the physical fight claiming he could not remember.

This lack of memory did not prevent him from speculatively opining that the photograph of the injury was not a bite mark.

7. The defendant disavowed anger or upset after the fight with Tarrick Brissett

[ 1 2 7 ] On the defendant’s version of events he had been accosted aggressively by an unknown female for unknown reasons and then he was physically assaulted. His testimony that not upset by the circumstances is not true, and probative of his credibility. The defendant literally scoffed at the suggestion in cross-examination that it would have been natural for him to be upset given the physical assault he had just sustained. Yet the defendant himself testified, in another area of testimony, that he was upset by ill-treatment from an uninvolved male who would not shake his hand as a sign of peace at the end of the fight. In describing this part of the incident, the defendant was visibly emotionally overcome in a manner that was not commensurate with the perceived insult. Seeking to shake the hand of an uninvolved bystander was illogical and improbable in the circumstances. Being so evidently upset about it – curious. The defendant was overcome with emotion over the rejection of his sign of peace yet nonplussed about the physical beating he had just taken? This was simply incredible testimony.

[ 1 2 8 ] It is patently obvious that he was upset by the physical assault. The defendant had received a beating from Tarrick Brissett and perhaps others. It is understandable that he was angry about this circumstance. His denial of this emotion was an obvious attempt to diminish the foundational inferences related to the allegation of dangerous driving – that the defendant was so upset by the physical assault that he threatened Tarrick Brissett and drove his vehicle at him.

8. Statements made by the defendant before entering his vehicle

[ 1 2 9 ] Tarrick Brissett testified that the defendant said “He has something for him”. Katiesha Brissett testified that the defendant said he was going to get her brother before getting into his vehicle. Kadeja Hughes testified that he defendant said he was going to “Kill you kids” and that it was not directed at anyone specifically. The defendant testified that he communicated no such threats. I cannot determine exactly what was said by the defendant prior to entering his car. Certainly there are reliability concerns occasioned by the different memories of the prosecution witnesses. Furthermore, Tarrick Brissett did not record this threat in his statement to the police.

[ 1 3 0 ] All of the prosecution witnesses (except for Ashley Shura) support the finding that the defendant said something threatening. He was upset in the aftermath of the physical assault he sustained. I accept that this occurred but I accord this finding minimal weight in the overall analysis.

9. Leaving the scene

[ 1 3 1 ] On the defendant’s version of events he had been accosted by Katiesha Brissett and assaulted by Tarrick Brissett and perhaps others in the group. He claims that he took such a beating that he was feeling the effects later on at the police station and needed medical attention. The defendant testified that he simply wished to leave the scene in the aftermath of the assault given the circumstances.

[ 1 3 2 ] During his testimony, he admitted that he wanted to leave the parking lot because others were yelling that they were calling the police and he did not want contact with the police. Given his position that he was assaulted, it is odd that he wished to avoid police contact. The defendant’s position is that nothing happened at the club and nothing happened on Brock Road. Thus, on his version of events, he was accosted by Katiesha BRISSETT and beaten by Tarrick BRISSETT without reason. Why the wish to avoid police contact given these circumstances?

[ 1 3 3 ] The defendant acknowledged during cross-examination that he drove at a fast pace through the busy parking lot with other persons and vehicles present. He also grudgingly acknowledged that persons had to move out of the way given the movement of his vehicle. The defendant testified that he looped through the parking lot because the entrance to the McDonald’s parking lot was congested with vehicular traffic and he was unable to leave. I do not believe that testimony.

[ 1 3 4 ] As previously outlined in this judgment the parking lot was a large location familiar to the defendant. There was more than one entrance or exit. Furthermore, the entrance/exit he referred to can clearly be seen on Exhibit 5 – and it is a wide location that could clearly accommodate cars both entering and exiting the lot. During cross-examination he acknowledged his awareness of the existence of other exits. Exhibit 5 clearly depicts at least 4 available exits from the parking lot. Finally, the prosecution witnesses disclosed no difficulty with traffic at this entrance.

10. Testimonial admission

[ 1 3 5 ] The culmination of an effective cross-examination by the Crown Attorney produced this exchange:

Q. And you hit someone

A. Probably I did.

Q. You have been denying that all throughout this trial now you are saying probably you hit someone.

A. I.. I.. well all of this is coming up now so probably I did hit somebody.

[ 1 3 6 ] Thus, the defendant ultimately reluctantly acknowledged that he probably hit someone with his car for the first time at trial near the end of the prosecution’s cross-examination.

11. Dangerous Driving: Actus Reus

[ 1 3 7 ] I make the following specific findings with respect to the actus reus:

a. The defendant drove at high speeds in the McDonald’s parking lot estimated by one witness to be between 50 to 60 km per hour;

b. Other patrons in the parking lot had to take steps to move out of the path of the defendant’s speeding vehicle as confirmed by both the prosecution witnesses and the defendant’s testimony;

c. The parking lot was large in area with multiple exits providing easy egress;

d. The parking lot was well lit from artificial lighting, other vehicles, and the light from stores;

e. The entrance/exit to the parking lot accessed by both the complainant vehicle and the defendant’s vehicle had sufficient diameter to permit both entering and exiting vehicles;

f. This entrance/exit was not congested with vehicular traffic thereby preventing the defendant from leaving the parking lot;

g. No person or persons (or vehicle) was chasing or pursuing the defendant when he drove away after the physical fight;

h. Having driven away from the scene of the physical fight, there was no need for the defendant to drive back towards the fourth row of parking in front of the McDonalds -- the location of the complainant’s and their vehicle -- in order to leave the parking lot;

i. The defendant drove his BMW X5 SUV directly at Tarrick Brissett and hit him where he was positioned in between two parked vehicles;

j. I am satisfied that the front grill area of the BMW X5 SUV struck Tarrick Brissett on his lower legs and that but for him leaping into the air as high as possible he would have been more solidly contacted by the vehicle. Finally, the injuries depicted in the photo exhibits (photos taken at the hospital) showing the injuries to the shins and lower leg area of the complainant are corroborative of all of the events described by the complainants;

k. The defendant did not apply his horn or any other alerting device (e.g. turn signal or flash lights) in advance of striking Tarrick Brissett;

l. In striking Tarrick Brissett, the defendant’s vehicle also struck the driver’s side mirror of the complainant vehicle;

m. In conducting his driving maneuvers the defendant came close to hitting Kadeja Hughes with his vehicle as well;

n. I find that the defendant performed at least two circuits around the parking lot -- not the greater number described by some of the prosecution witnesses. I am unable to find that the defendant conduct 4 or 5 circuits of high speed driving around the parking lot;

o. I agree with defence counsel that Tarrick Brissett’s recollection that the defendant reversed and re-aimed his vehicle during the execution of the second circuit is unreliable as he failed to put this information in his statement to the police;

p. I agree with defence counsel that Tarrick Brissett’s recollection that the defendant aimed his vehicle at Tarrick Brissett twice in an effort to hit him more than once is unreliable;

q. There is no evidence of any mechanical difficulty associated with the defendant’s vehicle nor was the weather or road conditions a factor; and,

r. There was no assertion of self defence in the operation of the vehicle nor was there an air of reality in support of this defense.

[ 1 3 8 ] In conclusion, it must be emphasized that I acknowledge the prosecution submission that the driving conduct could have easily injured Tarrick Brissett in a more significant manner. In considering this submission I do not consider the resulting injury as probative of the actus reus: Beatty para 46; Romano, at paras. 65-72. There is no expert evidence of causation in this case. Nevertheless, when examining the actus reus it is appropriate to consider the description provided by the witnesses concerning the force and speed of the BMW X5 SUV and in particular, the testimony of Tarrick Brissett.

[ 1 3 9 ] Tarrick Brissett was hit by the passenger side of the front of the defendant’s vehicle. It should be clear that Tarrick Brissett jumped in the air as high as possible to avoid impact. His lower legs and lower body were struck by the speeding BMW X5 SUV. Mr. Brissett was conveyed over the hood of the BMW, made contact with the windshield as evidenced by the damage to that windshield (see exhibit 4 showing the damage to the windshield), and then rolled over onto the vehicle next to the speeding defendant’s vehicle. The damage to the vehicle supports the common sense inference that there was a significant impact.

12. Damage to the Defendant’s vehicle

[ 1 4 0 ] The defendant testified that he never noticed the damage to his vehicle until he arrived at his residence. Based on a cursory examination of his vehicle at the residence he testified that he formed the conclusion he was a victim of vandalism.

[ 1 4 1 ] The defendant’s testimony in this area was remarkable insincere. He claimed to be unaware of any contact between his vehicle and any other person or vehicle in the parking lot. If this was true one would have expected him to be interested in speaking with the police about the physical assault perpetuated on his person. Under cross-examination he reluctantly admitted that he left the scene to avoid contact with the police. The damage to his vehicle included significant damage to the windshield yet he claimed not to have noticed this damage until arrival at his residence. Given the vehicular contact with Tarrick Brissett and the trajectory described after being struck by the defendant’s vehicle it is logical that the defendant would have seen the person he struck let alone the resultant damage to the windshield.

13. After the fact conduct

[ 1 4 2 ] I find that the defendant was quite aware that he had struck Tarrick Brissett with his vehicle. I would infer that he left the scene to avoid criminal or civil liability based on the evidence at trial let alone his admission during cross-examination that he wished to avoid the police. I do not believe that he failed to notice the cracked windshield on his car during the ten or fifteen minute drive home. Lastly, I find the he exhibited after the fact conduct supportive of consciousness of guilt by taking some steps to hide his vehicle.

[ 1 4 3 ] The defendant parked his vehicle on the grass in between his residence and his neighbour’s residence notwithstanding there was arguable space on his driveway. Any objectively sensible person who looked at Exhibit 4 would conclude that the defendant testimony about his usual practice of parking on the grass in between two houses was nonsense. Photos 3, 4, and 5 make this abundantly clear. The defendant’s vehicle is arguably almost on the walkway of his next door neighbour’s residence. I don’t believe the defendant’s testimony that this is his regular practice when there are cars on his driveway. Looking at the photographs (particularly 2 and 5) one can easily see lush green grass untrammeled by frequent tire treads. I do not need a forensic examination to draw this obvious conclusion. The defendant’s testimony about his usual practice and care in parking on the grass was simply incredible.

[ 1 4 4 ] Fleeing the scene, claiming not to notice damage, and claimed unusual parking practices punctuated the defendant’s after the fact conduct supportive of consciousness of guilt: R. v. White, 2011 SCC 13, at paras. 17 – 27.

14. Dangerous Driving McDonald’s Parking Lot: Mens rea

[ 1 4 5 ] The manifest conclusion on all of the evidence is a specific finding that the defendant drove in a deliberate fashion and struck Tarrick Brissett with his vehicle.

[ 1 4 6 ] On all of the evidence, this is demonstrably a “marked departure” from the standard of care that a reasonable person in the defendant’s circumstances would have exercised. The hypothetical reasonable person would have simply left the scene via any number of exits to the large parking lot – a location familiar to the defendant. The hypothetical reasonable person would not have driven his SUV motor vehicle and struck a person after conducting at least two high speed loops of the parking lot. The hypothetical reasonable person would not have driven at high speeds around the parking lot putting other patrons at risk.

[ 1 4 7 ] There was no imminent risk to the defendant. No one was pursuing him. The operation of the vehicle was not for the purpose of making good his egress from the circumstances. There are no exculpatory circumstances to evaluate thereby mitigating the mens rea.

[ 1 4 8 ] I believe that the defendant said something threatening before entering his vehicle and careening around the parking lot at a high speed. The deliberate act of driving performed by the defendant is manifestly a marked departure from the objective standard of care. Even on the defendant’s evidence he was driving at high speeds and in such a manner that persons in the parking lot had to get out of the pathway of his vehicle. On the defendant’s evidence, notwithstanding having been assaulted, he was eager to leave the parking lot to avoid contact with the police. On the defendant’s version of events he drove at a fast past through the parking lot and in speeding away at a high rate of speed given the movement of his vehicle, persons had to move out his vehicle’s pathway.

[ 1 4 9 ] Finally, as the penultimate consideration, during a pressured and effective cross-examination by the Crown Attorney, the defendant admitted on the stand for the first time that it was indeed possible he hit someone with his vehicle.

[ 1 5 0 ] On this record, there is ample support for a finding that the defendant possessed the requisite mens rea for dangerous driving.

VIII. Fail to Remain

[ 1 5 1 ] The prosecution has proven that the defendant failed to remain at the scene of an accident beyond a reasonable doubt. The prosecution has proven that in striking Tarrick Brissett the defendant also broke off the driver’s side mirror of Kadeja Hughes’ vehicle. I respectfully disagree with the Crown Attorney’s submission that this fact was not significant – it was a necessary element of the offence given the construction of the count. Both Kadeja Hughes and Ashley Shura testified to this fact and their evidence was not challenged.

[ 1 5 2 ] With respect to the fail to remain allegation the actus reus is clear. The defendant struck both a person and Kadeja Hughes’ vehicle and failed to remain at the scene or otherwise comply with the criminal code requirements. With respect to the mens rea I am satisfied that he was aware that he had struck a person. Persons in the parking lot started yelling at the defendant, calling out his licence plate, and referring to the police. The defendant testified that he was leaving the scene to avoid the police. The prosecution witnesses noted that the defendant stopped his vehicle momentarily right after contact. Furthermore, Kadeja Hughes testified that she saw the defendant look back at the aftermath. The defendant’s after the fact conduct makes it clear that he was attempting to avoid criminal or civil liability.

[ 1 5 3 ] For all of these reasons the defendant is also found guilty of Fail to Remain.

IX. Assault and Utter Threat allegations

A. Threats North Bound on Brock Road and in McDonald’s Parking Lot

[ 1 5 4 ] The defendant denies any contact with the complainant vehicle northbound on Brock Road. I have explained why I reject the defendant’s flat denial of involvement. But having regard to the criminal burden of proof, and in particular, the third branch of W.D., the prosecution evidence must still establish guilt beyond a reasonable doubt.

[ 1 5 5 ] I accept the evidence from all of the witnesses in the complainant vehicle that the defendant was yelling and screaming at them and that the focus appeared to be Tarrick Brissett. That being said, only Tarrick Brissett and Katiesha Brissett testified that they heard a clear threat. Furthermore, while Tarrick Brissett testified that there was no music playing in the vehicle (thus ostensibly he could hear a threat), his sister testified that they had inserted a CD received from the club. Neither Kadeja Hughes nor Ashley Shura testified about a threat on Brock Road. They were within the same vehicle and I accept defence counsel’s point that they were in a position to hear the alleged threat. These circumstances erode my confidence in the allegation of threat.

[ 1 5 6 ] While I am certain that a verbal exchange occurred between the defendant and occupants of the complainant vehicle I am not satisfied beyond a reasonable doubt that the defendant uttered threats and I am not certain that the threats were specifically focused on Tarrick Brissett. With respect to uttering threats in the McDonald’s parking lot I have already analyzed the issue earlier in this judgment and I have a reasonable doubt that threats were uttered.

[ 1 5 7 ] The defendant is found not guilty of uttering threats.

B. Assault: Tarrick Brissett

[ 1 5 8 ] I accept the defendant’s evidence that the interaction with Tarrick Brissett and his sister occurred proximate to the complainant vehicle but not at the rear window of the complainant vehicle. I accept his evidence that Katiesha Brissett approached him first and was wagging her finger in his face. The defendant’s version of events is substantively corroborated in this regard by Kadeja Hughes.

[ 1 5 9 ] This means that a fundamental component of the Tarrick Brissett and Katiesha Brissett’s evidence is not supportable – that the assaultive conduct occurred precisely at the rear window of the vehicle. This concern is amplified by the fact that shortly thereafter there is a mutual fight between the defendant and Tarrick Brissett. On my understanding of Katiesha Brissett’s evidence there are reliability concerns given she did not even testify about a mutual fight involving her brother and the defendant that clearly occurred.

[ 1 6 0 ] The defendant denies any unilateral assault. In the milieu of these fast- paced circumstances I am unable to parse out criminal liability and attribute same to the defendant. I am in a state of doubt because I accept the defendant’s evidence. Even if I rejected the defendant’s evidence on the assaults, by virtue of consideration of the third branch in W.(D.) I would still acquit him.

[ 1 6 1 ] The defendant is found not guilty of assault on Tarrick Brissett.

C. Assault: Katiesha Brissett

[ 1 6 2 ] With respect to the assault on Katiesha Brissett I am in a similar situation. This witness intervened and approached the defendant. Katiesha Brissett says she only approached the defendant after he made contact with her brother. I do not accept that evidence. I believe that her recollection of this portion of the events is unreliable. On her own evidence she initiated physical contact with the defendant by grabbing his right shoulder on his shirt. The defendant reached out as if to choke her and put his hand on her throat. She knocked his hand down and continued her physical intervention.

[ 1 6 3 ] Tarrick Brissett testified that he witnessed his sister and the defendant scuffling and that they both had a grip on each other. He saw her push the defendant off of her. Kadeja Hughes did not witness any physical confrontation between the defendant and Katiesha Brissett.

[ 1 6 4 ] The defendant describes his interaction with this complainant as occurring closely proximate to the interaction with her brother. He says that she initiated the aggression by approaching him and wagging her finger in his face and chastising him for his behaviour.

[ 1 6 5 ] Once again these circumstances were fast-paced. I do not disbelieve the defendant’s recount as it pertains to Katiesha Brissett. Having regard for the credit

to the defendant’s evidence, the prosecution’s case does not convinced me beyond a reasonable doubt.

[ 1 6 6 ] The defendant is found not guilty of assault on Katiesha Brissett.

Released: February 7, 2019

Signed: “Justice M.S. Felix”