ONTARIO COURT OF JUSTICE

CITATION: R. v. Williams, 2021 ONCJ 415

DATE: 2021 08 06

COURT FILE No.: Toronto, College Park 4817 998 02 75000572

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DONOVAN WILLIAMS

Before Justice J. W. Bovard

Heard on October 29, 30, 2020; May 6; June 16, 2021

Reasons for Judgment released on August 6, 2021

Ms. C. Glaister..................................................................................... counsel for the Crown

Ms. P. Bacchus......................................... counsel for the defendant Donovan Williams

Bovard J.:

On January 31, 2020, the police charged Donavan Williams with assault with a weapon. These are the court’s reasons for judgment after his trial.

Introduction

[1] On January 31, 2020, the day of the alleged assault, Mr. Williams and the complainant were staying at the Seaton House shelter for homeless men. They had an argument, which caused the staff to eject them in the middle of the night.

[2] Later, around 4:00 AM, they fought in the courtyard of the shelter. The Crown alleges that Mr. Williams was the aggressor. Further, that he took a swipe at the complainant’s throat with a knife. The fight was recorded by the shelter’s video surveillance camera.

[3] The fight ended with the complainant beating up Mr. Williams. Afterwards, the complainant went into the shelter and told Mr. Morgan, a staff worker, that “he cut me” and showed him a knife. Then he left the shelter and has not been seen since.

[4] I ruled that the complainant’s utterance was admissible as a spontaneous declaration.

The evidence

[5] Mr. Paul Morgan worked at Seaton House on the day of the incident. He knows Mr. Williams and the complainant. He heard them having a loud conversation about 10 minutes before they fought. He heard Mr. Williams say “F” words to the complainant. He also said something about the complainant’s mother.

[6] Mr. Morgan could see the courtyard of Seaton House from his work station. There is a big window through which he had a clear view. The Crown played several videos of the courtyard. They show various individuals coming and going, including Mr. Williams and the complainant. Mr. Morgan recognized the courtyard and Mr. Williams and the complainant, but he said that he did not see what the videos recorded. He was not looking out at the courtyard during the time that the videos were recorded.

[7] What Mr. Morgan saw was a separate incident in which the complainant was walking towards the main entrance of the building. Mr. Williams came up behind him and put his arm around his neck in a choke hold. He demonstrated this by putting his right arm across his neck with his hand closed and by his left ear.

[8] At first, he did not know if they were horsing around. But when he saw the complainant punching Mr. Williams to the ground, he knew that it was a serious fight. He did not see either of them holding a weapon.

[9] When the complainant stopped punching Mr. Williams, he ran into the office where Mr. Morgan was. He said, “he cut me, he cut me”, or something to that effect.[^1] The complainant was angry, and he swore. He was holding a knife. The shift supervisor told him to put it down, which he did. The supervisor took the knife.

[10] Mr. Morgan checked the complainant’s neck. It was not cut, but above his shirt collar he saw a red mark from the left to the right. It looked as if something had grazed or been pulled across his neck.

[11] Although they told the complainant to stay there, he left.

[12] During this time, Mr. Williams was outside lying on the ground, bleeding from his face. Some of the staff gave him a towel.

[13] Mr. Morgan did not remember what the knife looked like. He refreshed his memory from his audio statement to the police. This enabled him to remember that it was a switch blade with a black handle and a jagged silver blade. He said that he thought that it was an exacto knife that one uses for dry wall. The Crown showed him a picture of the knife. He identified it as the one that the complainant had that night. The picture is an exhibit.

[14] The Crown played several video clips of the courtyard of Seaton House that depict the fight in question. I find as a fact that the video clips show the following:

1. There are various individuals coming and going and hanging around in the courtyard, including Mr. Williams.

2. Mr. Williams is pacing around the courtyard. Then the complainant enters the courtyard. He does not look at Mr. Williams or engage him in any way. He walks over to a barred fence and just hangs around in front of it. Mr. Williams keeps pacing around, and he looks at the complainant a few times while he is pacing. It is clear that he had his eye on him from the time that he entered the courtyard.

3. Mr. Williams mills around a bit more and then turns towards the complainant. When he is between eight to ten feet from the complainant, he points at him with his left hand while looking at him and continues walking toward him. As he gets closer, the complainant turns his head slightly towards him to look at him, but the rest of his body does not move. He keeps his hands by his side.

4. Mr. Williams keeps walking towards the complainant. When he is about four feet from him, the complainant turns his head and torso towards Mr. Williams and inclines his torso and head slightly towards Mr. Williams, but his arms stay by his side.

5. Mr. Williams keeps walking toward the complainant. When he is about two to three feet from him, he takes a swipe at his neck area with his right hand. The complainant raises his right arm to block Mr. Williams’s arm. They start to fight which results in the complainant punching and kicking Mr. Williams to the ground.

6. When the Crown slowed down the video and magnified what Mr. Williams had in the hand with which he took a swipe at the complainant’s neck area it revealed the shiny, jagged blade of a knife. The blade reflected the ambient light and is easy to see.

7. After the fight while Mr. Williams was still lying on the ground, the complainant picked up something that was on the ground at Mr. Williams’s side and then went inside the shelter.

8. The knife that is seen in the video clip looks like what Mr. Morgan identified as the knife that the complainant brought into the shelter. A picture of it is an exhibit.

[15] Counsel submitted the following agreed statement of facts.

On January 31, 2020, police attended Seaton House after receiving a radio call. Police noted that the radio call was received by them at 4:52 a.m.

The first police officers to attend arrived at Seaton House at 5:03 a.m.

After receiving information from staff about what had occurred, police placed Donovan Williams under arrest.

Shelter staff provided the police with the black folding knife, the photograph of which is Exhibit #1 in this trial.

PC Seltzer #11417 took an audio statement from witness Paul Morgan starting at 5:17 a.m. Mr. Morgan provided Sergii’s name as “Sergii MESHCHERRIAKOV”.

[16] Mr. Williams testified. He is 57 years old. He has a criminal record, which is exhibit 4. He has been staying at Seaton House since 1993 or 1994. He generally gets along with the staff. He did not know Mr. Morgan before the day in question.

[17] He knew the complainant through drug transactions. He was not sure, but he thinks that he has known him for over five years. They are both drug users and drug traffickers. Mr. Williams bought crack cocaine from the complainant one time. The complainant has bought crack cocaine from him a few times. The complainant is addicted to fentanyl. Mr. Williams told him where he could purchase it. Prior to the day of the incident they did not have much to do with each other. They just knew each other in passing at the shelter.

[18] One time the complainant stole his knapsack. Later, he saw him in the washroom with the knapsack. The complainant told him that he did not know that it was his. He gave it back and apologized. Nothing was missing so Mr. Williams was fine with the situation.

[19] The evening before the incident Mr. Williams had been using crack cocaine. He was also taking medication for depression. The medication gives him brain fog sometimes. Some days he cannot remember things. He said that crack cocaine makes you more alert. On the day in question, in addition to using crack cocaine, he drank two shots of Bourbon.

[20] Mr. Williams is right handed. During the night of January 30, 2020 and up to the incident in question, he had his crack pipe, which is a five inch glass tube with black tape on one end. He also had a Bic lighter and something else that he could not remember.

[21] He denied having a knife or anything that looked like a knife. Prior to the incident, Mr. Williams sold crack cocaine to one of the complainant’s friends. This upset the complainant. They argued. He called Mr. Williams the “N” word. This was very painful for Mr. Williams. He told the complainant “Fuck your mother” or to “suck your mother”. The staff of the shelter intervened and kicked the complainant out of the shelter. The complainant left.

[22] Mr. Williams went out of the shelter a few minutes later to buy drugs. The complainant accosted him and tried to get him to fight. Mr. Williams tried to avoid him. The complainant hit him in the eye, in the jaw two times, in the mouth, on the left temple and one more time somewhere that he could not remember. This knocked him to the ground. He hit his head on the concrete and passed out. When he came to, he was dazed, and his mouth was bleeding. Someone gave him a napkin. He can not remember anything else. The next thing that he remembers is waking up at the police station.

[23] On the surveillance video of January 31, 2020, that depicts Mr. Williams outside of the shelter where the incident took place, Mr. Williams says that it shows him holding either a cigarette or a crack pipe or he was holding drugs in his right hand and a pipe in his left hand.

[24] In another part of the video, Mr. Williams makes a derogatory gesture to the complainant that means that he uses needles. He said that it had to be the complainant to whom he was gesturing because he is the only one there that used needles.

[25] Starting at time stamp 4:47:08, the video shows that he made the same gesture again. And it shows Mr. Williams transferring something from his left hand to his right hand. He is right handed. He thinks that it was his crack pipe. But since he can not remember the incident, he is just reporting what he thinks that he sees in the video.

[26] Mr. Williams testified that the video shows that after their fight, his face was bloodied. He went into the shelter and then came back out. He was wiping his face. Paramedics treated him afterwards.

[27] Mr. Williams agreed that he watched all the surveillance videos played in court, but he does not have any recollection of the altercation between him and the complainant that is shown in the video. He does not remember anything after he got up off the ground.

[28] That was all the evidence.

Defence submissions

[29] The defence submits that the Crown did not prove that Mr. Williams assaulted the complainant with a knife.

[30] The defence maintains that the complainant made the first move towards Mr. Williams and then they started fighting. The defence argued that Mr. Morgan agreed that this is what the video shows, but that is just his interpretation of what he is seeing on the video. He did not see the altercation when it occurred. Therefore, his opinion in this regard does not have any more weight than anyone else’s who has seen the video.

[31] The defence submitted that Mr. Morgan told the 911 operator that the complainant was the guilty party and that Mr. Williams was the victim. This is based on the fact that he saw Mr. Williams bleeding. The defence does not have to prove anything, but I note that this is not evidence that Mr. Williams did not assault the complainant with the knife. The video shows that the alleged incident with the knife occurred before the complainant beat up Mr. Williams.

[32] The defence pointed out that the complainant did not wait around for the police to come. I imagine that the defence brought this up to make the argument that he left because he was the guilty party. But I find that this is an act that is open to many interpretations, not only that one. Again, the defence does not have to prove anything, but I mention this because it was one of the defence’s submissions.

[33] The defence agrees that the video shows that Mr. Williams walked towards the complainant thereby making “the first move to walk towards that complainant”.[^2] But the defence also said that the complainant made the first move towards Mr. Williams while Mr. Williams’s arms are still down”.[^3] The defence appears to be positing two “first moves”. The defence said that it is a “slight move”, not a big move. And further, that Mr. Morgan agreed that the complainant made the first move. As I said above, Mr. Morgan’s interpretation of the video is not worthy of any more weight than anyone else’s who watched the video.

[34] The video shows that next, Mr. Williams raised his right arm and the complainant blocked it with his right arm. The defence said that Mr. Williams put up his arm to defend himself from what he thought was going to be “another fight”.[^4] It is not clear to me if this refers to the possible “horsing around” to which Mr. Morgan referred or to the verbal argument that they had earlier.

[35] The defence argued that neither Mr. Williams’s arm nor his hand touched the complainant’s neck because the complainant’s arm came up to block Mr. Williams’s arm. I note that this makes it look like Mr. Williams was the aggressor.

[36] The defence argued further that I cannot be certain beyond a reasonable doubt that Mr. Williams had a knife in his hand in video clip 16 where it shows the beginning of the fight because “We can’t see this clearly”.[^5]

[37] Mr. Williams said that he had a glass crack pipe with one inch of black tape covering one end of it, leaving five inches of glass with no tape on it. The defence argued that the crack pipe could be mistaken for a knife because one end of it is black and the rest of it is reflective glass. The lighter that Mr. Williams said he had could also have caused a reflection similar to a knife blade. The defence said that the reflection in the video could have come from a cigarette, too. I do not know what type of cigarettes give off reflections like knife blades do, though.

[38] The defence maintained that this should leave me in reasonable doubt that Mr. Williams had a knife. The Crown must prove that it was a knife because they particularized the Information that way.

[39] The defence argued that after the initial encounter, the video shows that Mr. Williams is in retreat from the complainant who is attacking him.

[40] The defence agreed that later, when Mr. Williams is on the ground, the complainant picked up something off the ground or took something from Mr. Williams and went inside the shelter. The defence pointed out that Mr. Morgan said that the complainant came into the shelter with a knife.

The defence submitted that there is no forensic evidence such as DNA or fingerprints that connect Mr. Williams to the knife. Therefore, there is a reasonable doubt regarding the origin of the knife. The defence submits that “The only evidence that the knife came from Mr. Williams is from the complainant”.[^6] But the complainant did not testify, so there is no evidence from him about this. The defence submitted that “we have no idea where the complainant got the knife from”.[^7]

The Crown’s submissions

[41] The Crown submitted that the video shows clearly that Mr. Williams assaulted the complainant with a knife. There is evidence of animus on the part of Mr. Williams towards the complainant as a result of the argument that they had a few hours before the assault.

[42] Further, there is no air of reality to the defence of self-defence. In addition, Mr. Williams does not remember the activities recorded in the video, so he cannot tell the court that he was acting in self-defence.

Analysis

[43] I instruct myself according to the principle that the Crown has the onus of proof beyond a reasonable doubt. Mr. Williams does not have to prove anything.

[44] Mr. Williams testified that after they argued and the complainant called him names and Mr. Williams said derogatory things about the complainant’s mother, the complainant accosted him and tried to get him to fight. Mr. Williams tried to avoid him. The complainant hit him in the eye, in the jaw two times, in the mouth, on the left temple and one more time somewhere that he could not remember. This knocked him to the ground. He hit his head on the concrete and passed out. When he came to, he was dazed, and his mouth was bleeding. Someone gave him a napkin. He can not remember anything else. The next thing that he remembers is waking up at the police station.

[45] There is no evidence other than Mr. Williams’s that the complainant accosted him and tried to get him to fight. In addition, his evidence that after accosting him, the complainant beat him up and knocked him to the ground describes the events during the altercation involving the knife, which is recorded in the video. And in that incident, I find as a fact that the complainant did not accost Mr. Williams. Therefore, I reject his evidence in this regard.

[46] After reviewing the evidence on the video surveillance tape, I find as a fact that it clearly shows that the complainant entered the courtyard and went to a fence in the yard and stood there without doing anything towards Mr. Williams. But Mr. Williams kept his eye on him from the moment that he entered the courtyard.

[47] Mr. Williams milled around a bit and then pointed toward the complainant and approached him. When Mr. Williams was approximately four or five feet from him, the complainant looked at him and turned his torso and head slightly in his direction. But he did not make any aggressive gestures towards Mr. Williams. The complainant’s arms remained at his side.

[48] Mr. Williams raised his right hand in an aggressive manner towards the complainant and took a swipe at the complainant’s neck with a knife. The complainant raised his right hand to block Mr. Williams’s right hand.

[49] I find as a fact that the video clip shows clearly that Mr. Williams had a knife in his hand. The handle is black, and the blade is a silver colour that reflected the ambient light in the courtyard. I find as a fact that this object is not a glass crack pipe with one inch of black tape on one end. It is a knife.

[50] Regarding self-defence, s. 34 of the Criminal Code states:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[51] The Crown has the onus of proving beyond a reasonable doubt that the defence of self-defence is not available to an accused. However, if any one of the prerequisite conditions in s. 34 (1) does not exist, self-defence will not be available to the accused.[^8]

[52] After considering all the circumstances and evidence in the case at bar, I find that there is no evidence to satisfy s. 34 (1) (a), (b) of the Criminal Code that (a) Mr. Williams believed “on reasonable grounds that force [was] being used against [him] or another person or that a threat of force was being made against [him] or another person, or that (b) “the act that constitutes the offence [was] committed for the purpose of defending or protecting [himself] or the other person from that use or threat of force”. Mr. Williams testified that he did not remember the incident so he could not give reliable evidence in this regard.

Air of reality

[53] In addition, there must be an air of reality to the defence. In R. v. Kavinsky[^9], the court stated that there must be “evidence before the Court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe the evidence to be true”. In making this determination “a trial judge must not weigh evidence, determine credibility, draw inferences, or assess the likelihood of success”.

[54] In R. v. Cinous, the Supreme Court of Canada outlined the judge’s task in determining whether there is an air of reality to the defence of self defence. They held that,

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury ... The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences … Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

[55] Considering all the evidence and all the circumstances in the case at bar, I find that there is no air of reality to the defence claim of self-defence for the following reasons.

1. I find as a fact that the video evidence does not disclose any type of aggression toward Mr. Williams from the complainant, actual or imminent. The argument that they engaged in earlier was a verbal argument. I acknowledge that apparently in addition to the verbal argument, Mr. Morgan testified that before the incident in question, he saw the complainant walking towards the main entrance of the building. Mr. Williams came up behind him and put his arm around his neck in a choke hold. He could not tell if they were just horsing around. However, there is no evidence that anything that was said or done during these incidents was a potential harbinger of danger to Mr. Williams from the complainant.

2. There is no evidence concerning what Mr. Williams thought before the altercation involving the knife occurred. He testified that he could not remember the events depicted on the video surveillance.

3. There is nothing depicted in the video surveillance or in any other part of the evidence that gives rise to an air of reality.

[56] Mr. Williams testified, therefore it is appropriate to consider D.W. v. The Queen[^10], which sets out the guiding principles for triers of fact on questions of credibility as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, 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, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[57] Regarding Mr. Williams’s credibility, I find that his criminal record affects my assessment of his truthfulness to a moderate degree. Since1983, when his record began, he has been convicted of 4 thefts, and of attempt to obstruct justice.

[58] In addition, I have concerns regarding the reliability of his evidence.

[59] Mr. Williams testified that during the early morning when this incident occurred, he was holding a crack pipe with black tape around one of its ends and a lighter. The defence argued that this could be mistaken for a knife in the video. I do not agree.

[60] If this is what Mr. Williams was trying to say in his evidence, I reject his evidence. He said that he could not remember the incident. Therefore, his evidence as to what was occurring in the video is no better than that of anyone watching the video. I watched it numerous times in real time, slowed down, frame by frame, and enlarged. And I have considered defence counsel’s interpretations of the events depicted in the video.

[61] As a result of my observations of the events on the video, despite the defence’s imaginative arguments, I find as a fact that the video shows clearly that Mr. Williams was holding a knife in his right hand. I am persuaded beyond a reasonable doubt that it was a knife.

[62] A factor that causes me concern regarding the reliability of Mr. Williams’s evidence is that he said that he does not remember the incident in question, nor anything depicted in the videos. He testified that he was using crack cocaine and alcohol the night before the incident. He also said that his medications cause brain fog. All these factors diminish significantly the reliability of his evidence.

[63] Therefore, based on all the above, I find that his evidence is not reliable or credible in general and specifically regarding what he had in his hands at the time of the incident and I do not accept it. Nor does it leave me in reasonable doubt. None of his evidence leaves me in reasonable doubt.

[64] In any case, even if he had a crack pipe and a lighter at some time that night and morning, I find as a fact that the video shows that he took a swipe at the neck of the complainant with a knife.

[65] Concerning the last prong of the D.W. test, I find that “on the basis of the evidence which [I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused”.

Disposition

[66] Consequently, after considering all the evidence, the law and counsels’ submissions, and for the above reasons, I find that the Crown proved the case beyond a reasonable doubt. I find Mr. Williams guilty of the offence and I register a conviction.

Released: August 6, 2021

Justice J. W. Bovard

[^1]: I allowed the Crown’s application to admit into evidence this utterance as a spontaneous declaration.

[^2]: Transcript, June 16, 2021, page 26, line 6,7

[^3]: Transcript, June 16, 2021, page 26, lines 9, 10

[^4]: Transcript, June 16, 2021, page 38, lines 14-15

[^5]: Ibid., page 29, line 28

[^6]: Ibid., lines 8-10

[^7]: Ibid., lines 13-14

[^8]: 2017 ONSC 532, para. 9

[^9]: Para. 9

10 2002 SCC 29, paras. 53, 54

[^10]: 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397