Court File and Parties

Court File No.: Brampton 3111 998 19-5559 Date: June 19, 2021 Ontario Court of Justice

Between: HER MAJESTY THE QUEEN — AND — EZRA DUNCAN

Before: Justice G.P. Renwick

Heard on: 23-24 March and 17 June 2021 Reasons for Judgment released on: 19 June 2021

Counsel: E. Guimond, for the Crown J. Lopez, for the defendant Ezra Duncan

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with assaulting his then-common law partner causing her bodily harm, and damaging her cellular telephone during a physical altercation on 27 February 2019.

[2] Evidence was taken over three days. The complainant, Stacy-Ann Lodge, the Defendant, and Ms. Shanique Wright testified. There were photographs of Ms. Lodge’s injuries, medical reports, a diagram of the area where the alleged assault took place, text messages, and a transcript of Ms. Lodge’s statement to the police filed as exhibits during the trial.

[3] The only real issue for determination is whether the prosecution has proven the allegations beyond a reasonable doubt. Ancillary issues include the assessment of witness credibility and reliability and the value of circumstantial evidence.

[4] These reasons will explain my decision to acquit the Defendant of the charges.

GENERAL LEGAL PRINCIPLES

[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any single element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed an offence, he will be acquitted of the charge.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into five propositions:

i. I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[8] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have referred to transcripts of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[9] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, to listen to parts of the digital recordings, and to read excerpts of the transcripts of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

[10] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[11] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

The Testimony of the Complainant

[12] The complainant testified in a simple way, in a plain way, and generally, in a compelling way. The complainant described a violent incident that arose because she was complaining about the Defendant to their children and he had called her a “bitch.”

[13] In parts, the complainant’s testimony was unclear. As a result, significant details concerning the alleged assault were incomplete.

[14] My greatest difficulty with accepting the significant parts of the complainant’s evidence was her inability to provide specific details of the mechanics of the alleged assault and the damage caused to her phone. For example, when she was asked by the prosecutor to describe the start of the physical interaction she testified:

A. I knew. We saw my daughter looking. Like, she was looking at the adult using the foul language. And just - I ended up on the ground, at that point, and it got worse.

Q. Okay. So I want to ask you more details about how you ended up on the ground then. Okay. So can you tell me, in as much detail, what happens, physically, from the time that you tilt your head down to the side to look past Mr. Duncan, how you end up on the ground.

A. My leg – he grabbed my leg.

Q. Okay. And where was he standing when he grabbed your leg?

A. The same place, (indiscernible).

Q. And are you still at the same place, on the other side of the fence?

A. Yes. I’m on one side of the gate. He’s on the other side of the gate. He lifts - he pulled my leg, and I used my shoulders and arms to kind of keep me from falling, but I, eventually, fall.

After a few more questions, her testimony continued:

Q. Okay. And I’m just asking now about before he grabbed your leg. You told us you are having this – you are exchanging words. What about physical interactions with him before he grabs your leg?

A. No. Like, I didn’t touch him. He didn’t touch me. But I know that it was just that violent moment there.

Q. Okay. So the grabbing of the leg, is that the initial physical contact between the two of you?

A. Yes.

Q. Okay. All right. And when he grabs your leg, you say you were using your shoulders and arms to brace yourself. What are you bracing yourself against?

A. The wall, at the hallway of the kitchen entry.

Q. Okay. And how long does this go on for before you end up on the ground? Was it, like, less than a second, one second, more than a second?

A. Oh, more than. The whole thing was five minutes.

Q. From when he grabs your leg until you end up on the ground.

A. Oh. Two seconds. It felt longer. I am sure it was very short, but I had injuries after on my shoulder and my thumb.

[15] The complainant’s testimony in cross-examination was similar:

Q. Okay. And I inferred from your evidence today – correct me if I’m wrong – is that, at that point, Mr. Ezra, over the gate, reaches over for your leg and pulls it. Is that correct?

A. Correct.

Some time later in cross-examination the following exchange occurred:

Q. So, Ms. Lodge, to be fair to you – sorry. It’s been a long morning for me. You did mention that part about being - falling to the ground. Okay. So I just want to make sure. That was the moment when he grabbed your leg. Right? And you fell to the ground and then your leg was pinned under the gate. Is that how things unfolded?

A. Yes. But there is the part that you left out where I, kind of, held myself up for a small time. I don’t know how long.

[16] Respecting the mischief count, there was also a lack of specifics regarding this allegation in the complainant’s testimony. In chief, the complainant testified:

Q. Ezra. Okay. And can you tell me more about him throwing the phone?

A. I don’t know why, or when it happened, in the duration. I know that he fixed it right after. Like, immediately, got it replaced.

Q. Okay. The throwing of the phone, I took you to be saying that happened during the same time period, before he left, after the altercation over the fence.

A. Right.

[17] This evidence was re-iterated in cross-examination:

Q. Okay. And soon after that, the impression I got from your evidence is that when that happened, he threw your phone. Is that right?

A. I don’t recall what order of events, but, yes. He threw my phone and he left, like, when all the blood was flowing everywhere.

[18] There was also some imprecision in the complainant’s testimony respecting where the physical altercation ended and how the damage to her phone was caused:

Q. Were you still in the same location, near the fence, when it ended?

A. I don’t remember. I just know that – as he was leaving – the phone was thrown, at some point. Like, it was – it was there, all in the same area, but then the hallway. “You need to leave. Go.”

[19] For Ms. Lodge, the Defendant’s attack upon her was completely unprovoked.

[20] There were other areas of the complainant’s testimony that the Defendant submitted demonstrated her animus toward the Defendant and her motive to fabricate the allegations. The defence theory rests largely on consideration of the evidence of Ms. Wright. In the end, I have rejected this theory as unsupported by the evidence claimed for its foundation.

[21] Ms. Lodge testified that during the struggle while the Defendant held her down on the floor, both of her arms were restrained and she attempted to bite his wrist. Unfortunately, as this happened, the complainant lost a bottom tooth that got caught on the Defendant’s clothing. She also claimed to have suffered a scratch on her foot from the child safety gate and soreness in her left thumb and right shoulder. The photographs and medical reports filed partially supported that Ms. Lodge had lost a tooth, had a scratch to her foot, and the fact that her thumb had been dislocated. Respecting the shoulder injury, at least one of the medicals noted “MSK [which I take to mean musculoskeletal] No Acute/Chronic pain or swelling in : - Hips/Back/Shoulders/Wrist/Knee/Ankle.” [2] Neither the photographs nor the medical reports could corroborate how the complainant’s injuries were caused.

The Testimony of Shanique Wright

[22] Much of the Defendant’s concerns for the reliability of Ms. Lodge’s testimony related to the relationship and interactions between her and Ms. Wright. However, given the concerns addressed above and my assessment of the Defendant’s evidence, discussed below, I have decided that I need not give much weight to the third-party’s testimony. As Ms. Wright was not a witness to any of the criminal allegations, it serves no purpose to discuss any of the specifics of her testimony.

The Testimony of the Defendant

[23] The Defendant testified in a credible way. Although he had a poor recollection about his criminal history, and he thought there was some duplication to the entries on his record, he did not deny his past.

[24] While testifying, the Defendant was not prone to exaggeration or embellishment. Where he could not recall things, he admitted it. Except in two key areas, [3] the Defendant’s lack of recall, unlike the complainant’s, was mostly around peripheral areas: upon returning home he did not recall seeing blood on the carpet near where he says the physical altercation occurred; he could not recall if Aunt Angie was at the home when he returned; he could not recall the timing of his discussions about the incident with Shanique Wright; and he could not recall whether the complainant was wearing socks or footwear during the interaction.

[25] The Defendant was asked about his emotional state during this altercation. He testified:

Q. Okay. During this altercation on February 27th, 2019, what was your demeanour or comportment in terms of your emotions?

A. On upon entry into the home?

Q. Describe throughout.

A. I mean, me and Stacy always argue. I was more surprised that she was attacking me now and this is getting physical. Again, we always argued, and we always found a way to get through the argument and find a solution to whatever problem there was. Our relationship wasn't perfect by all means. She....

Q. All right.

A. I mean…

Q. I'm asking you like you say you were surprised. Do you remain calm?

A. I'm a calm demeanour guy. I don't really get upset real quick. It takes a lot for me to get upset. You have to push a lot of buttons for me to get upset. I am a very emotional talker, you can say, with body language, but I wasn't aggressive that day at all. Like, I pretty much came home from work, and you know, she was making up some noise and you know I'm use to the noise and I'm kind of use to defusing the noise. But today - on that day – sorry - it wasn't diffusible. It wasn't diffusible that fast until that whole incident went down. You know, and by all means, I'm not perfect. I was shocked, surprised. I was just trying to get out of there after that whole incident with me having to hold her hands because she's trying to attack me. Like, she's never done anything like that to me before. Nowhere in front of the children too. It was kind of out of character for her.

[26] As is evident in the passage referred to above, the Defendant was a balanced historian that did not gratuitously attempt to portray the complainant in a negative light.

[27] In terms of the mechanics of the alleged assault, the mischief to property, and how things ended, the Defendant’s version of events is credible and plausible. I accept his evidence as truthful and reliable where it differs from Ms. Lodge.

[28] There was no grand flaw in the Defendant’s evidence. It was consistent throughout. In the end, it was believable and I believe it.

[29] I accept as fact that the Defendant did not initiate physical contact with the complainant. He responded in a reasonable way to defend himself from Ms. Lodge. Unfortunately, during their struggle, they fell onto the landing of the upper stairway, she tried to bite him and when her tooth got caught on clothing it was unintentionally dislodged. I have a reasonable doubt that the Defendant caused any of the complainant’s injuries. I have a reasonable doubt that the Defendant had anything to do with the complainant’s damaged cell phone.

CONCLUSION

[30] On the basis of my acceptance of the Defendant’s version of events and despite the compelling nature of Ms. Lodge’s evidence, I am left in a reasonable doubt about these allegations.

[31] Accordingly, Ezra Duncan is acquitted of the charges.

Released: 19 June 2021 Justice G. Paul Renwick

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[2] This observation is taken from: page 5 of 8 of Family Medicine And Urgent Care Clinic Documentation for STACY-ANN KAREN LODGE.

[3] During cross-examination, the Defendant claimed that he could not recall Ms. Lodge ever being on the floor in the kitchen or whether she had actually kicked him when she was hitting him with her hands.