Court File and Parties
Court File No.: 18-373 Date: April 13, 2021 Ontario Court of Justice
Between: Her Majesty The Queen — And — Gyver James-Park
Before: Justice Robert S. Gee
Heard on: December 18, 2019, January 22, 2020 and February 4, 2021 Reasons for Judgment released on: April 13, 2021
Counsel: Brett Moodie, for the Crown Robert Yanch and Shawn Swarts, for the Accused
Gee J.:
Overview
[1] Selkirk Ontario is a small town close to Lake Erie between Port Dover and Dunnville. Each summer, the town hosts an event called Gas Festival. In 2018 Gas Fest as it’s known was held on the weekend of August 11 and 12. One of the festivities held as part of Gas Fest is an evening event in the local pavilion where live music is played, alcohol is served, and people gather to drink and dance and generally have a good time. If there are other festivities associated with Gas Fest, they weren’t discussed at this trial.
[2] The accused, Gyver James-Park and the complainant, Jessica Jones, both attended Gas Fest on Saturday August 11, 2018. Before this night, they were not known to each other. By the end of the night, they had been involved in three separate altercations and both were left bleeding from significant gashes to their heads. Ultimately, Mr. James-Park was charged with assault causing bodily harm to Ms. Jones.
[3] The altercations and animosity between the two were sparked by small-minded bigoted comments made by Mr. James-Park to Ms. Jones who is transgendered. Ms. Jones used to live in Selkirk but hadn’t for some time. This night was her first time back since she began her transitioning. She attended Gas Fest that night with her then fiancé Jaclyn Wendel and her sister Melissa Jones. [1]
[4] Mr. James-Park also attended Gas Fest with a group of his friends. Significant quantities of alcohol it seems, were consumed by all. When Mr. James-Park first saw Ms. Jones, he made a comment on her attire which Ms. Jones either laughed off or ignored. Later in the evening though, Mr. James-Park continued to make mocking comments toward Ms. Jones and at one point brought a friend, Jordan Schuur over to where Ms. Jones and her group was and made a comment to the effect that it looked like Ms. Jones had stolen her shirt from Ms. Schuur’s closet. This comment caused words to be exchanged between Mr. James-Park and Ms. Jones that led to the first of their three altercations. The second encounter occurred shortly after this first fight was broken up, just outside the pavilion in the driveway area. The third occurred near where Ms. Jones’ group parked their vehicle that night, which by coincidence was out front of Mr. James-Park’s house.
[5] This trial began on December 18, 2019 and continued on January 22, 2020. It was not completed that day and a third date of April 17, 2020 was set. However, the COVID-19 pandemic intervened and the matter was delayed as a result. It was set to continue in the fall of 2020 but shortly before it could, Mr. James-Park’s original counsel, Mr. Yanch withdrew from the practice of law and Mr. James-Park retained Mr. Swarts to complete the matter. As such Mr. Swarts needed time to review the transcripts and prepare and the final day of evidence was heard on February 4, 2021. Delays such as this are obviously far from ideal but, unfortunately were unavoidable in the circumstances. I want to assure all parties involved, notwithstanding these delays I have carefully reviewed the evidence in this matter and my decision would have been the same regardless.
[6] The balance of these reasons will explain why although Mr. James-Park’s behaviour that night was shameful and despicable and it is only natural to want to punish him for it, I find the Crown has failed to prove the charge against him beyond a reasonable doubt. Cases such as this are always difficult for the Crown to prove to the requisite criminal standard of proof beyond a reasonable doubt. When all involved parties have been consuming alcohol, there has been a significant passage of time since the events, there are few if no independent witnesses to the events and just the generally chaotic nature of altercations such as this that take place quickly and involve several people, the ability to prove who did what to whom and how it all started can be extremely difficult. This case is no different.
Legal Principles
[7] As a starting point, some of the legal principles at play in a case such as this should be mentioned. The first point to make is that in this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than that of proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities. See R. v. Lifchus, [1997] 3 SCR 320.
[8] Meeting that standard is always a daunting task for the Crown. It can become even more daunting in a case such as this. The bulk of the evidence in a case such as this comes from the testimony of witnesses. When witnesses testify about events that took place a significant time ago it can become problematic. Memories fade over time. The longer the time between the event and the trial, the greater the potential is for witnesses’ memories to fade. This means the quality of the evidence will generally deteriorate as time goes on.
[9] As well, when the witnesses are testifying about events they observed or experienced while under the influence of alcohol or drugs, the reliability of their recollections can become suspect.
[10] However, the burden on the Crown never changes. The Crown still has the burden of proving the accused’s guilt beyond a reasonable doubt even in the face of these evidentiary challenges. It is not permissible to ease the burden on the Crown because the charges are serious or because of evidentiary challenges the case presents.
[11] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives a different version of events from the complainant or other witnesses.
[12] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. W.D. tells me to approach the case in this manner. First I should ask myself if I believe the accused. If I do, then the accused is entitled to an acquittal.
[13] The second part of the W.D. framework comes into play if I conclude I do not believe the accused. If I do not, in order to remain focused on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. At this stage I have to ask if there is a basis to reject this evidence outright. If I find that even though I do not accept the accused’s evidence, I am still unable to reject it as either untruthful or unreliable, then I would have to find I am left with some doubt. The accused is entitled to the benefit of that doubt and is again entitled to an acquittal.
[14] This framework though is not limited to the evidence given by the accused. It should be followed for any evidence inconsistent with guilt, regardless of its source. If I believe the evidence inconsistent with guilt, I should acquit. Further, even if not believed, if the evidence inconsistent with guilt still leaves me with a reasonable doubt, I still must acquit.
[15] It is only after I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D framework.
[16] This part of the framework reminds me that even if I have not believed the evidence inconsistent with guilt and have in fact rejected it in its entirety that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.
[17] The W.D. case “does not describe three sequential analytical steps that a trier of fact must pass through, one at a time”. As Code J. stated in R. v. Thomas, 2012 ONSC 6653, at par. 24:
A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[18] Also following this framework minimizes the risk of treating the case as a credibility contest between two competing versions of events. It is not. Even if I find that the case presented by the Crown is more believable or compelling than that of the accused, such a finding does not resolve whether I am still left with a reasonable doubt. In a criminal trial, a judge is not required to make a binary choice between the Crown version or the accused’s version. There are other legitimate options that could result in an acquittal, even in the face of a compelling Crown case. One such result is that I am unable to resolve the conflicting evidence. Such a determination, which would no doubt be unsatisfying for the parties, would nonetheless mean that in the end I am left with a reasonable doubt. This scenario has long been recognized as a legitimate result to a criminal trial. See for instance R. v. Challice, (1979) 45 CCC (2d) 546 (ON CA), where such a result was recognized by the Court of Appeal.
Evidence at Trial
[19] In total ten witnesses testified at trial; four for the Crown and six for the defence. Nine of the witnesses were present at Gas Fest that night. The only witness who testified who did not attend Gas Fest was Samantha Brown. She testified for the Crown about some comments Mr. James-Park made to her several months later. Of the nine who were at Gas Fest that night, only one, Corey Jones who testified for the defence could be said to be an independent witness. Mr. Jones also grew up in the area and knew Ms. Jones, to whom he is not related, as they had gone to High School together. He also knew Mr. James-Park through his girlfriend’s family, however they were not particularly close as Mr. Jones had moved from the area in 1997. Mr. Jones attended Gas Fest that night though he did not attend with, or socialize with either group.
[20] The evidence amongst the witnesses who were present that night conflicted significantly. That is not uncommon when nine people testify about events that happen quickly, involved numerous persons at the same time, and alcohol had been consumed by many if not all. Except for Corey Jones, I found that all of the witnesses who were there that night testified with an intention of supporting the side that called them. For some this was more blatant or obvious than others. It was clear for some of Mr. James-Park’s friends who testified, their loyalty to him was more important to them than the oath they swore to tell the truth. In this case, after disregarding the testimony or parts thereof I have rejected, I am unable to find enough consistency or corroboration between the accounts to make any factual findings beyond a reasonable doubt as to how the altercations unfolded.
[21] Ms. Jones testified that she went to Gas Fest that night with her sister, Melissa Jones and her fiancé, Jaclyn Wendel. They arrived at approximately 10:30 pm. Not long after their arrival Ms. Jones had her first encounter with Mr. James-Park. According to Ms. Jones, a comment about the outfit she was wearing was made by Mr. James-Park. She says she told Mr. James-Park to leave her alone and he says they both took the comment in a light-hearted fashion. The night progressed without further incident until close to closing when Mr. James-Park brought his friend Jordan Schuur to where Ms. Jones and her friends were. It’s at this point Mr. James-Park made another comment about Ms. Jones’s attire, this time mockingly asking Ms. Schuur if Ms. Jones stole her top.
[22] The first physical altercation between the two began just after this comment. According to Ms. Jones, she made a comment to the effect if Mr. James-Park liked her shirt so much she would give it to him. Ms. Jones states this angered Mr. James-Park and he attacked her. He ultimately got her on a picnic table where several of his friends held her down while Mr. James-Park punched and kicked her. Mr. James-Park stated that after he made this comment, Ms. Jones slammed down her drink and attacked him. The fight eventually ended up on the picnic table but was never more than the two of them. The only time others were involved was to break it up.
[23] Neither Jaclyn Wendel nor Melissa Jones can assist in determining how the first fight started. Although both were present and both claim to have seen the fight, they were both vague on the details of what happened and both deny observing how it started. Jaclyn Wendel in fact testified at some point she was pushed and fell and struck her head on the picnic table rendering her unconscious.
[24] The impetus for the second fight is equally as murky. After the first fight was broken up, Ms. Jones left the pavilion. She said she left with her sister Melissa and eventually Ms. Wendel joined them. Melissa then left to go back to the pavilion for a sweater that was left behind. While Ms. Jones and Ms. Wendel were waiting for Melissa to return, they suddenly heard Melissa yell for them to watch out. As she yelled this Ms. Jones was again attacked by Mr. James-Park and his friends. She fell to the ground and was again punched and kicked. During this melee she injured her knee either from when she twisted it as she fell or from the kicks.
[25] Ms. Wendel tells a similar version. She says after she regained consciousness, Ms. Jones and Melissa were gone so she left to find them. She located them outside in the driveway and at that point Melissa volunteered to go back for the sweater. She also says at some point Melissa yelled a warning to them and as she did, Ms. Jones pushed her away and was attacked by Mr. James-Park and his friends again.
[26] Melissa version though is different. She said after the first fight, Ms. Jones was escorted out by some unknown person. Someone who could perhaps have been part of Mr. James-Park’s group or perhaps just someone trying to help and get Ms. Jones outside away from the others. She said she went out and found Ms. Jones and then left to return to the pavilion to find Ms. Wendel. Once she found Ms. Wendel they returned outside and found Ms. Jones. As the three of them were then standing in the driveway, Ms. Jones noticed Mr. James-Park and his friends leaving. In cross-examination she admitted Ms. Jones was still angry about the first fight and she had started to move toward Mr. James-Park and she and Melissa attempted to hold her back because she might have want to “go again” with him.
[27] Mr. James-Park testified the second incident started when he saw Ms. Jones push over another woman outside and this upset him so he was going to be a Good Samaritan and go over and hold Ms. Jones until he could turn her over to the authorities. Although I am unable to say for certain how this second incident started as well, given Mr. James-Park’s behaviour that night and the numerous transphobic comments he seemed to have no concern making in public, I am certain this explanation by him is a complete fabrication.
[28] After this second fight was broken up, Ms. Jones and her fiancé and sister continued to leave and walk to where they had parked their van. Unfortunately, unbeknownst to them they parked on the same street and close to where Mr. James-Park lived, and to which he and his friends were also returning at the time. Ms. Jones, Ms. Wendel, and Melissa all testified that at some point in the walk, Mr. James-Park and his friends were walking a short distance behind them. As they were, Mr. James-Park again began yelling derogatory comments to Ms. Jones. He began calling her “fag boy” and telling her she should return home to her mother. Mr. James-Park denied this. As near as he came to acknowledging making any inappropriate remarks were in relation to the clothing comments inside the pavilion mentioned earlier.
[29] I accept that this comment and others like it were made by Mr. James-Park and members of his group and were directed at Ms. Jones. Not only did Ms. Jones, Ms. Wendel, and Melissa testify they were made so did some of Mr. James-Park’s friends who testified including Brett Schweyer and Jordan Schuur. This is another clear example where Mr. James-Park chose to not be honest when testifying. His lack of honesty taints the entirety of his testimony. It renders him an incredible witness, leaving me in a position of not being able to accept any of his testimony.
[30] As Ms. Jones and her group continued to their van, the taunts continued. Ms. Jones testified she hurried to the van and opened the door and took out a Johnson bar, which she described as a metal bar approximately two feet in length with a socket on the end. She stated she retrieved this to protect herself and just as she got it, Mr. James-Park and his group were on her again. She said she swung the bar but was unsure if she struck anyone with it. She again ended up on the ground being beaten
[31] Ms. Wendel said she saw Ms. Jones get the bar, turn and raise it and start a swinging motion. She did not see if the blow landed as Ms. Jones was immediately surrounded by Mr. James-Park and his friends and was again attacked. Melissa said when she heard the taunting start, she hurried ahead to the van to start it so they could leave before there was more trouble. As such, she was in the van when Ms. Jones opened it, took something out but she was unable to see what it was or what happened thereafter.
[32] Mr. James-Park and several of his friends who testified, those being Brett Schweyer, Zachary Zchuur, and Jordan Schuur, all testified that as the two groups were heading down the street, as Ms. Jones got near the van she hurried to it, removed the bar and came back toward Mr. James-Park. They met up in the middle of the road and Ms. Jones swung the bar at Mr. James-Park, striking him in the head. All testified the blow was forceful enough to open a gash on Mr. James-Park’s head and caused significant bleeding.
[33] Zachary and Jordan Schuur are cousins, and both are friends of Mr. James-Park. They both made very poor witnesses and I have given their testimony little weight.
[34] Zachary Schuur came across as arrogant and more interested in protecting his friend than in telling the truth. He was part of the group that was walking back to Mr. James-Park’s house and taunting Ms. Jones by yelling derogatory names along the way. Not only did he deny to making any of the derogatory comments, he denied even hearing any being made. This is simply not true. That derogatory names were yelled at Ms. Jones on the walk back to her van was admitted by several witnesses. Mr. Schuur was part of the group that was yelling them and if he himself did not yell any, he was certainly able to hear them. His denial that they were made is a fabrication designed to assist his friend. He also denied seeing any blood on Ms. Jones at the end of the night. This denial would mean he’s one of two things; he’s either an unobservant witness, or untruthful, either of which are further reason to reject his evidence.
[35] Jordan Schuur also came across as arrogant and untruthful. In cross examination her answers were often argumentative and unresponsive. She also testified she didn’t realize Ms. Jones was transgendered. She did this I find to try to portray herself as open minded and fair. It didn’t make her appear as such, it only made her appear to be unwilling to tell the truth. As will be recalled, Ms. Schuur is the person Mr. James-Park brought over to where Ms. Jones was in the pavilion to mock her about her clothing which prompted the first fight. As well, she was part of the group that was yelling the derogatory names at Ms. Jones on the walk back to Mr. James-Park’s house and she admitted she heard these remarks. These facts demonstrate she most certainly knew Ms. Jones was transgendered as that fact was at the root of the trouble caused that night.
[36] Brett Schweyer is Ms. Schuur’s boyfriend and a friend of Mr. James-Park. He also seemed more concerned about supporting his friend through his testimony than being completely honest. He was at least prepared to admit Mr. James-Park was calling Ms. Jones derogatory names like “fag boy” and he also admitted that she was injured that night but tried to downplay her injuries by denying he noticed any blood on her. He also admitted in cross examination that he was a good friend of Mr. James-Park, he didn’t want to see him get in trouble and would testify however he needed to get him out of trouble. As such, it is not possible to give his testimony much weight either.
[37] As noted earlier, the only independent witness who testified who was not associated to either Mr. James-Park’s group or Ms. Jones’ group that night was Corey Jones. He attended Gas Fest that night with his girlfriend. Mr. Jones was in the pavilion when the first fight between Mr. James-Park and Ms. Jones broke out. According to Mr. Jones, he did not see how it started but when he noticed it, the only two involved were Ms. Jones and Mr. James-Park. They were standing and pushing and shoving and perhaps punching each other. He went over to where it was and helped break it up. After that he thought it was over.
[38] Mr. Jones and his girlfriend also found themselves walking between the two groups at the end of the night on the road where Ms. Jones parked, and Mr. James-Park lived. Mr. Jones testified he saw Ms. Jones hurry to her van and retrieve what he thought was a tire iron. Ms. Jones then went back toward Mr. James-Park and they met up in the road where Ms. Jones swung the bar multiple times contacting Mr. James-Park at least once, opening a gash in his head. Several people intervened in the melee that ensued, including Mr. Jones who grabbed Ms. Jones and removed her from the scene. He said he wanted to get her into the van and get her out of there and it took all his strength to do so as Ms. Jones was irate and trying to get back to re-engage with Mr. James-Park. Eventually, Mr. Jones got Ms. Jones into her van and told Melissa to get her out of there. Mr. Jones also acknowledged that Ms. Jones was obviously injured that night as she was covered in blood.
[39] I found Mr. Jones to have testified in an honest and straightforward manner. He didn’t try to tailor his evidence to support one side or the other. As stated, he was independent of the two groups that night and I find he gave his evidence in an unbiased manner and, of all the witness there that night, his testimony was the most factually accurate.
Conclusions
[40] In the end, I find myself in the situation described above in R. v. Challice, (1979) 45 CCC (2d) 546 (ON CA), I am unable to resolve the conflicting evidence and a such am left with a reasonable doubt. Although I was unable to accept much of the evidence of Mr. James-Park or his friends for the flaws in their evidence noted above, there were still too many conflicts between the evidence of Ms. Jones and other witnesses, especially Mr. Jones for me to make any findings beyond a reasonable doubt.
[41] Even though they are now a group in their early to mid twenties, I have no doubt that Mr. James-Park and his friends were acting like a group of immature and transphobic bigots who felt insulated by being in the presence of their liked minded peers, in comfortable surroundings who for that reason felt it was okay to make fun of someone different from them. When they made fun of Ms. Jones that night it unsurprisingly upset her. That this devolved eventually into acts of violence is also not surprising.
[42] How the fights started, and who did what that night, is what I am unable to determine. The first two fights were likely started by Mr. James-Park, but I cannot discount the fact they could have been started by Ms. Jones. If they were started by Ms. Jones, I can't forget, as unsympathetic as he is, Mr. James-Park would still be entitled to defend himself.
[43] The third fight seems, based on the evidence of Corey Jones to have been started by Ms. Jones. It seems she by then had had enough of the taunts and invective hurled her way by Mr. James-Park and his friends and she wasn’t going to put up with it any longer. Although I'm in no way condoning such behaviour, such a reaction by her is understandable.
[44] I should also address why the evidence of Samantha Brown who was called by the Crown, did not alter the outcome. Ms. Brown is the daughter of Melissa and the niece of Ms. Jones and is close in age to Mr. James-Park. Several months after the Gas Fest incidents, she was at a party and was approached by Mr. James-Park. She stated he took her aside and apologized for the pain he inflicted on her family that night. Defence chose not to cross examine her on this evidence. The Crown argued that as the evidence was not challenged, this supports an inference that the defence accepts her evidence. For support for this proposition, the Crown points to the case of R. v. Quansah, 2015 ONCA 237, at par 79.
[45] When Mr. James-Park testified he testified that he apologized for the things he had said the night of Gas Fest and for everything it caused, and he never meant for it to happen. The Crown argued this was a violation of the rule in Browne v. Dunn (1893), 6 R. 87 (H.L.(Eng.)). This rule is rooted in fairness. It means that if a party intends to challenge an assertion made by a witness through calling contradictory evidence of their own, fairness dictates they advise the witness how they intend to contradict them and give them a chance to respond.
[46] In my view neither of these principles come into play here by the lack of cross examination of Ms. Brown. In his testimony, Mr. James-Park didn’t deny making the statement to Ms. Brown, nor did he even challenge the substance of the statement. What he did was offer an explanation as to what he meant by it. Suggesting to Ms. Brown what Mr. James-Park meant by the statement simply as a nod to the rule in Browne v. Dunn would be meaningless as there is no way she would have any knowledge of Mr. James-Park’s intention for the statement in any event. Also inferring from the lack of cross examination on the statement made, that Mr. James-Park as a result accepts the allegations of Ms. Jones in their entirety, or that it should be viewed as an an admission of guilt, is not appropriate. The statement is too equivocal and lacks any nuance or detail that would make any such inference possible.
[47] As such, it is for these reasons that Ms. Brown’s evidence of the apology made by Mr. James-Park, had no bearing on the result in this case.
[48] It is for all these reasons that I have found the Crown has failed to prove the case beyond a reasonable doubt. Human nature as it is, will always mean there is a temptation to find a way to punish people when they engage in deplorable behaviour like Mr. James-Park did here. However, even those who seem the least deserving of it, are entitled to the protection of all the safeguards in the law, including not to be convicted until their guilt is proven beyond a reasonable doubt. Mr. James-Park is getting the benefit of that safeguard today. That does not however mean he will escape all consequences for his actions. This decision will be published online. As such for now and into the future, whenever someone finds and reads it, they will know all the things Mr. James-Park did and said back on August 12, 2018 and they will be able to draw their own conclusions about him from it.
[49] For the above reasons, the charge is hereby dismissed.
Released: April 13, 2021 Signed: Justice Robert S. Gee
Footnotes
[1] There will be times throughout these reasons where I will refer to Melissa Jones as “Melissa”. I do this where necessary to distinguish between her and her sister, the complainant Jessica Jones. No disrespect is intended.