WARNING

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

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

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

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

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

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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

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

Court Information

Ontario Court of Justice

Date: 2020-01-02

Court File No.: Hamilton 18Y-11182

Between:

Her Majesty the Queen

— AND —

V.K.

Before: Justice P.H.M. Agro

Heard on: December 3rd, 2019 and December 5th, 2019

Reasons for Judgment released on: January 2nd, 2020

Counsel

Ms. M. Fahim — counsel for the Crown

Ms. G. Eliany — counsel for the accused V.K.

Reasons for Judgment

Facts

[1] V.K. is charged with assaulting I.S., causing her bodily harm.

[2] It is the theory of the Crown that V.K. punched and kicked the pregnant I.S. during a family celebration at the home of the complainant's sister I.V.S. on the evening of November 18th, 2018.

[3] Five witnesses testified: the complainant and two Hamilton Police Service officers for the Crown, one being Constable Pacheco who attended at the scene in response to a 911 call and the other, Constable McKenna who took the complainant's statement on November 23rd, 2018. For the defence, the accused and I.V.S. testified.

[4] On those aspects of evidence of these witnesses that I accept, I make the following findings of fact:

• The complainant knows the accused, who is the son of her sister I.V.S.'s partner
• The gathering took place in celebration of the complainant, her sister I.V.S. and her mother T.S., attaining permanent residence in Canada
• In addition to the named witnesses, other extended family members were in attendance as well as the accused and his friend, K. [surname unknown] and T.S.'s boyfriend, A. [surname unknown] and the complainant's boyfriend
• The complainant consumed alcohol during the evening but was unable to quantify a precise amount beyond "2 or 3 beer"
• On the evidence of Constable Pacheco, I find the complainant was moderately intoxicated
• At some point late in the evening a verbal altercation took place in the doorway of the residence that drew the attention of the complainant and other partygoers
• None of the civilian witnesses were able to remember what started that altercation
• That altercation escalated into a physical one, resulting in injuries to A. [surname unknown], the complainant's mother's boyfriend
• When the complainant and others went over to the area of the melee, she was hit in the left eye, fell to the ground and was kicked
• The complainant's boyfriend called police and EMS who attended to the complainant who had suffered a cut above the left eye, a blackened left eye, several small bruises to her left arm and bicep and scraped shins
• The accused left the house immediately after the altercation, leaving his shoes behind
• The injuries suffered by the complainant were neither transient nor trifling and amount to bodily harm: those injuries took about two months to completely heal

Defence Evidence

[5] V.K. testified in his own defence. He was 16 years of age at the time of the incident.

[6] He acknowledged knowing the complainant and being at the party but denied having anything to drink.

[7] He testified that he arrived at the party at about 8pm, and after partaking of the offered food, he watched movies with his younger brothers.

[8] V.K. said that he heard yelling and when he went toward the area of the altercation he saw a drunk I.S. yelling and pushing at others in the area. He said he went outside and when he tried to return to retrieve his shoes, he was blocked and pushed by the complainant and at one time was hit by her in the back of the head.

[9] V.K. said that the complainant kept going after him as he tried to retrieve his shoes so he slapped her in the face but she became more aggressive. He denied punching her.

[10] The testimony of I.V.S. was unhelpful other than to confirm that an altercation took place at the front door, that the complainant was drunk and that V.K. was upstairs watching movies with the younger children. She could not remember any interaction between V.K. and the complainant.

Complainant's Testimony

[11] The complainant testified that V.K. was already inside the doorway area when she went over toward the altercation. She was unequivocal that it was the accused who twice punched her in the face and kicked at her causing her to fall to the ground where she was kicked again. She said the accused was facing her directly when he punched her but was unable to account for who kicked her on the ground as she was unable to see.

[12] I.S. offered no reason for the accused's hitting her and denied pushing, hitting or running after the accused outside.

Analysis of Evidence

[13] I find the complainant, while not having full recall of the entirety of events, to be a reliable and credible witness. Her testimony under cross-examination did not waver and she was clear in her identification of the accused as the individual who punched and kicked her.

[14] Her testimony regarding her injuries is supported by the photographs taken by police and the evidence of the two officers regarding the nature of those injuries and is consistent with the events as she described them.

[15] The testimony of I.V.S. was vague and somewhat evasive. Her relationship with the complainant was not that strong before this event and even less so at the time of trial. That may well be because of competing loyalties to her sister and her boyfriend's son, the accused. For that reason, I reject any of her evidence that is inconsistent with that of the complainant.

[16] The evidence of V.K. bore a number of inconsistencies and at times, made little sense.

[17] At one point in his testimony he said he was watching movies with his brothers in the living room area of the house when he heard the altercation at the front door and then claimed he was upstairs watching the movies and only came down when he heard yelling.

[18] He claimed at one point in his examination in chief that when he saw the "big beef" at the front door, he tried to calm everyone down and then the complaint started yelling in his face and pushing him multiple times, after which he slapped her.

[19] Later in his testimony in chief he said he was barefoot outside and when he returned to get his shoes, the complainant blocked and pushed him. In the next sentence he claimed the complainant came running after him and hit him in the back of the head and when he turned around she was being restrained by her boyfriend.

[20] There was no explanation about how he got outside through a tangle of adults engaged in a fracas in a confined entrance way described by the complainant as 3 metres by 3 metres. The defence witness I.V.S. remembered at least 5 adults, including the accused in that entranceway.

[21] Despite being, by his own admission, a few inches taller than the complainant, and certainly more sturdy than she, V.K. claims he was scared when I.S. was yelling at him.

Wiginton Discharge Analysis

[22] The testimony of the accused does not raise a reasonable doubt in my mind. As explained, there were multiple inconsistencies and claims that bore no common sense.

[23] His post-offence conduct of leaving the party for a 20 minute walk home without his shoes in mid-November, speaks to his consciousness of guilt.

[24] I appreciate however that V.K.'s testimony, although I reject it, cannot be viewed in a vacuum.

[25] However, on all of the other evidence which I do accept, I find it was the accused V.K. who assaulted I.S., thereby causing her bodily harm and I am satisfied of that beyond a reasonable doubt.

Conclusion

[26] For these reasons, a finding of guilt will be entered.

Released: January 2nd, 2020

Signed: Justice P.H.M. Agro