DATE: February 9, 2022 Information No.: 20-15002041
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN AND JAMES ALFRED DOAN
REASONS FOR JUDGMENT
BEFORE JUSTICE B. BROWN
ON FEBRUARY 9, 2022, AT TORONTO, ONTARIO.
APPEARANCES: H. Lamourie, Counsel for the Crown A. Veneziano, Counsel for James Doan
REASONS FOR JUDGMENT
Brown J. (Orally)
THE COURT: Mr. James Alfred Doan is charged with assaulting Roxanne Alexandra, also known as Roxanne Wright, on April 2nd, 2020, contrary to s. 266 of the Criminal Code. The Crown proceeded summarily, and there were no Charter applications. The Crown called three witnesses: the complainant, Roxanne Wright; Officer Michael Harnish; and the S.O.C.O. officer, Dennis Oh.
The defence called Mr. James Doan as a witness. The defence brought a motion for particulars which it later abandoned. The defence also brought a motion for non-suit which it also abandoned prior to calling Mr. Doan as the witness. No issue was raised in relation to the complainant with the first name Roxanne being named in the information with the surname Alexandra who testified using the surname Wright. As a result, the Court does not consider any issue arising from the change to this woman's surname. The only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Doan assaulted the complainant.
It is apparent that the allegations in this case relate essentially to two assaults close together in time. The first is an allegation that Mr. Doan pushed the complainant in the area of the entrance of the elevator. The second allegation of assault is one of him striking her face in some fashion, causing a small cut to the inside of her top lip.
In relation to the second allegation, initially in examination-in-chief it appeared that this allegation was also in the elevator. As the complainant's evidence progressed, she indicated that it happened in the area of the hallway and/or stairwell on the sixth floor after the two parties had left the elevator and were proceeding to the main floor and the superintendent's office.
Uncontradicted evidence.
Officer Michael Harnish responded to a radio call and attended at 22 McCaul Street to meet with the complainant on April 3rd, 2020. She met him in the lobby before he went to her unit. At the time, he noted that the complainant had a swollen top lip. The complainant identified Mr. Doan, who was also in the lobby, as the party who had assaulted her. He arrested Mr. Doan at that time and read him rights to counsel.
The officer also reviewed camera footage in the building in relation to a female and male in the area of the elevator. The video and other videos were seized by the police.
Both the complainant, Ms. Wright, and Mr. Doan were residents of the Toronto Community Housing building at 22 McCaul Street in Toronto at the relevant time. Mr. Doan is 63 years of age, and he enjoys roller blading. Almost every morning he roller blades from Queen and McCaul Streets to Main and Queen Streets, and back. He is on a disability after having worked 25 years as a cab driver.
The complainant, Ms. Wright, is 36 years of age. She has worked in the field of indigenous addiction and mental health. She has lived at 22 McCaul Street since 2018. At the time of the allegations, she was dealing with her son who had been in the hospital for a brain tumour. She testified that she is immune compromised as it relates to COVID-19.
On April 2nd, 2020, Mr. Doan was leaving his unit in the building wearing roller blades and clothing for roller blading, including a helmet and a pair of gloves. He was leaving to get some herbal medicine for his ailing elderly pet. Ms. Wright was already in the elevator going down to the main floor. She was alone in the elevator. She had just recently come from the hospital with her son who was in a wheelchair after being treated for a brain tumour. She indicated that she was immune compromised.
The allegations as noted below in the conflicting versions of Ms. Wright and Mr. Doan relate to events which happened in the elevator near the sixth floor and later in the hall and/or stairway of the building.
After the event in the elevator area, Mr. Doan went downstairs and the complainant was in the process of following him down the stairs. Both were independently intending to go to the superintendent's office in relation to what happened to them in the elevator. When they arrived at the office of the superintendent, they realized that he was not there. They waited a short period of time but he did not arrive. Shortly after that, Mr. Doan left the building. The complainant remained in the area of the building.
Although there was mention in this trial of the complainant not wearing a face mask as she walked in the hallway and elevator of the building, it is notable that Mr. Doan was also not wearing a face mask as he travelled through those areas. The video shows numerous people in the building not wearing a face mask. At the time the video is depicted, the people in the building, the majority of people, were not wearing a face mask. Only a very few wore a face mask.
The Court would note that this was only a few weeks into the COVID-19 pandemic on April 2nd, 2020. The rules on that date as far as wearing a face mask and whether a face mask was either suggested or required to be worn are not at all clear or in evidence in this trial. At the very early stages of the pandemic, public health officials were stating that face masks were not effective.
There is conflicting evidence as to whether Mr. Doan called Ms. Wright names and racial slurs. There's also conflicting evidence with respect to whether Ms. Wright threatened him after he allegedly pushed her in relation to her son living in the building.
Video evidence.
The video of the elevator clip was marked as Exhibit 1 and played in the trial. It is a visual video with no audio. At the start of the video, the elevator is empty. It shows on the left side wall of the interior of the elevator two posted signs with respect to social distancing. One sign shows one person in it. This sign was later marked as Exhibit 8. The sign alongside it shows two people in it, and this sign was later marked as Exhibit 7 in the trial.
Approximately forty seconds into the video, the complainant stepped into the elevator, alone, holding a smart phone in her right hand and some other items in her left hand. The door closed. Some time went by. As the elevator door opened, the complainant walked over to the door as it started to open. Mr. Doan at that point was just outside the door wearing a helmet, gloves and roller blades.
The complainant touched a button on the elevator panel and walked in front of the door as it opened. Mr. Doan was standing in the middle of the open door. The position of the complainant blocked his entry to the elevator. The complainant pointed to a sign on the inside of the wall of the elevator, appearing to speak to Mr. Doan. Mr. Doan pointed to another sign. Then, shown very clearly in that moment, Mr. Doan used his right leg and chest to push into the complainant, push her aside and thereby get inside the elevator. This appears to be an intentional push, not an accidental push.
Mr. Doan then appeared to push one or more buttons on the elevator as he moved around the inside of the elevator. The complainant stood in the elevator opening preventing the door of the elevator from closing. Neither party was at that time wearing a face mask. The two parties remained in the elevator area for a few minutes until Mr. Doan left the elevator. Shortly after, the complainant left the elevator.
Exhibit 3 was the video clip of the stairwell with railing and shows stairs coming down to the floor, then a view of the hallway to the door. It shows no people until approximately 5:56 into the clip. At that point, it shows Mr. Doan coming down the stairs first, still wearing his roller blades, with his right hand on one railing and his left hand on the other railing. He steps down the stairs on his roller blades. The complainant follows behind, holding her cell phone in her right hand. Mr. Doan proceeded ahead of her through the door, down the hall, going into what appears to be the ground floor of the building. Ms. Wright delayed slightly behind him, following through the same door.
The ground floor stairwell exit video, Exhibit No. 4, shows two elevators and a hallway in front of the elevators. One elevator is marked "1". It shows many people in the building not wearing a face mask as the video taping is ongoing. One woman wore a face mask and she was using a walker. At approximately 6:10 into the clip, it shows Mr. Doan come through a door with the complainant following behind. They pass by the elevators, go down the hall and turn left. Towards the end of the nine-minute or so clip, a woman coming off the elevator was wearing a face mask. Other parties that were shown on this video were not wearing a face mask are not being described in the reasons.
That lobby video, Exhibit 5, shows the foyer of the building and front door together with the hallway to the left. Much later in the clip, it showed Mr. Doan with his roller blades facing the front door as the complainant remained in the hallway. The two parties remained in the general area for some period of time before Mr. Doan exited through the front door. The complainant remained for some time on the inside and then outside of the front door appearing to talk on her phone.
Photographs.
The S.O.C.O. photographs as part of Exhibit 5 showed the inside of the top lip of the complainant showing a small abrasion to the inside of the lip near the complainant's front teeth. The S.O.C.O. photos were taken the day after the allegations on April 3rd, 2020, in the lobby area of 22 McCaul Street. Exhibit No. 6, being two photographs taken by the complainant, showed the same abrasion inside the top upper lip of the complainant.
Elevator notices.
Exhibit 7 was a photo of a notice that was posted inside the elevator removed shortly after the allegations by Mr. Doan. This notice depicted a notice from Toronto Community Housing for "social distancing on elevators". The notice showed two people with an arrow between the two images of people. The notice reflected that physical distance means keeping two metres apart from each other and that there should only be two people on the elevator at a time. This notice had been altered by Mr. Doan writing yellow highlighting and red printing on top of it after he removed it from the elevator and before he presented it to the Court.
The next exhibit, No. 8, was a similar notice from the Toronto Community Housing for "social distancing on elevators". On this notice, which was placed beside Exhibit 7 in the same elevator, it showed the image of only one person and stated to "please keep your physical distance on elevators", meaning two metres apart from others. This notice reflected the statement: "Due to the size of the elevator in this building, there should only be one person on the elevator at a time." This notice was also altered by Mr. Doan writing with yellow highlighting and red letters on top of it. As indicated, these two notices were in the elevator which was the subject of the allegations.
I am going to stop here for a minute. I note that someone has joined the Zoom platform and has described themselves as an observer. It is an open court, but we need to have people identify themselves so that the Court can be confident that the person is known and is not taping these proceedings. So would the observer please identify themselves.
--- Inquiry by the Court of the observer and advice re illegality of taping proceedings.
THE COURT: I'm continuing with my reasons now.
For reasons not known or understood by this Court, Toronto Community Housing, or someone else, had placed two contradictory notices side-by-side in the same elevator. As noted above, one notice stated that there should only be one person in the elevator. The image of the notice right beside it indicated that there could be two people in the elevator but two metres apart. It was apparent to this Court that this was not a huge elevator. It also seems, as noted in the viva voce testimony below, that the complainant was relying on the notice indicating one person was allowed in the elevator while Mr. Doan was relying on the notice that said two people were allowed in that elevator. This seems to have created a state of confusion, and a dispute occurred between the two parties.
Viva voce testimony - incident relating to push allegation at elevator.
This Court is going to deal with the two allegations separately given the nature of video evidence in relation to the push in the elevator area. The Court also considers and applies R. v. W.(D.), 63 C.C.C. (3rd) 397, a judgment of the Supreme Court of Canada. The Court considers the evidence of Mr. Doan firstly on this point. Essentially, he testified that Ms. Wright was blocking the doorway to the elevator. He testified that he went to the left and she stopped him so he went over to the right, and when he went around her, his body touched hers. He testified that she pushed, and he pushed back with his skates to get his balance back, and they started yelling at each other. Then in cross-examination he modified his evidence to admit that he "moved her out of the way", using the force of his leg. This is moving her intentionally.
Then, at another point in cross-examination, he testified that he didn't really shove her out of the way, he went around her. The video shows clearly, this Court would find, that he did intentionally push or "move her out of the way". The Court rejects his version that he did not intentionally push her. There is no doubt that Mr. Doan was of the view that he was entitled to enter the elevator as he was relying on the sign that seems to indicate two people were permitted. At the same time, there is no doubt that the complainant was relying upon the notice that seemed to indicate only one person was to be in the elevator. Either way, there was no justification for there being a push or an assault by Mr. Doan to get in that elevator.
The Court does not believe or have a reasonable doubt regarding Mr. Doan's version that he did not intentionally push Ms. Wright, also in light of his additional evidence that he "moved her out of the way".
The Court also considers the evidence of Ms. Wright with respect to the allegation of the push at the elevator. On the day of the allegations, she went in the elevator. The elevator stated how many metres people were to be apart from each other and how many people were to be in the elevator. It was her understanding that the elevator she was located in was not conducive to having two people in it at the same time due to the COVID-19 pandemic. At that time, she had just come out of the hospital with her son who was in a wheelchair. She was immune compromised. She was not taking any risks with respect to her son.
When Mr. Doan tried to get on the elevator, she pointed out the social distancing notice to him and that he could not join her on the elevator. She said that the signs were up for a reason. Her evidence was that instead of responding to her verbally, Mr. Doan responded by punching her in the elevator"chucking" her. When she was asked to explain what she meant by "chucking", she indicated that he pushed her to get in the elevator. He pushed his way into the elevator by pushing his way in. She explained he pushed her with his body, his upper torso area. She explained that his body was in contact with her upper body as she kind of went back in the elevator.
After the complainant was shown the video following her recitation of the events in the elevator, in examination-in-chief she said she did not remember that her back had been turned to him before he pushed her. It was her impression that he did this intentionally, and she stated that she did not consent to the contact. She had not touched him before this happened or threatened him in any way.
When asked if she had provoked him in any way, she said "I guess by telling him he should not enter the elevator". It is apparent from the video that she was pushed somewhat from behind and to the side by Mr. Doan and that she was looking at the sign when he did so. She testified that when he did this, she fell back into the elevator.
She further stated that she had just come out of the hospital with her son in a wheelchair"Just take the next elevator", and Mr. Doan did not want to do that. He told her that is "B.S.", that COVID isn't real, that the signs, referring to the notices in the elevator wall are garbage. She testified that he should get out of the elevator. He also added a few racial slurs that she did not want to repeat.
Ms. Wright knew Mr. Doan previously from living in the building. She knew that he wore spandex and roller blades. She said that everyone in the building knows him. The video shows that he was wearing spandex and roller blades at the time that he was in the elevator with the complainant.
As noted above, the video very clearly shows that Mr. Doan pushed the complainant from behind as she was looking away from him and pointing to a notice in the elevator. Although Ms. Wright gave evidence that Mr. Doan pushed her with both hands at one point in her testimony, it is clear that she would not have seen what he pushed her with from a view of the video. He did push her generally from behind, according to the video. The Court can see in the video that he pushed her from behind, using his leg and torso area.
The video also shows what the Court would find to be an intentional push by Mr. Doan. Although the defence did not specifically argue that it was an accidental push, the Court wishes to address this given that Mr. Doan was on roller blades at the time. While the Court does have some concerns regarding the credibility and reliability of the complainant's evidence regarding the second allegation of her being struck in the face, the existence of the video evidence makes it clear to the Court what happened in relation to the push near the elevator. The Court does not find that it was an accidental push, and the Court does not have a reasonable doubt as to it being an accidental push by Mr. Doan. It was intentional.
Accordingly, bearing in mind the physical evidence of the video of the elevator, the Court does not have a reasonable doubt with respect to the intentional application of force by Mr. Doan to the complainant, pushing into her and shoving her into the elevator. That was an assault.
While at one stage in examination-in-chief she stated that he pushed her with both hands, it is apparent to the Court that she had her back essentially turned to him so she would not have been in a good position to see what part of his body came in contact with what part of her body. As stated above, it is apparent from the video that his leg and torso were the parts of his body that he used to push her. This is not a material inconsistency when the Court considers her viewpoint and has available the video clip which captured the actual assault.
The physical objective evidence of the video corroborates and confirms that Mr. Doan assaulted the complainant by pushing her and shoving her from behind with his leg and torso. The Court does not believe his denial that he intentionally pushed her as stated in his evidence, given the video recording which makes it clear.
The Court does not have a reasonable doubt regarding this assault arising from his evidence and R. v. W.(D.). The Court accepts the complainant's version, as corroborated by the video, that she was pushed and shoved intentionally by Mr. Doan into the elevator. There was also no justification for Mr. Doan pushing Ms. Wright.
The Court relies upon the video clip of the elevator scene, the viva voce testimony of the complainant, and notwithstanding the evidence of Mr. Doan, which the Court does not believe, as far as his version that he did not push her, nor have a reasonable doubt arising from it. The Court makes a finding of fact that Mr. Doan intentionally pushed Ms. Wright near the elevator without justification.
In making these findings, the Court has also considered and now refers to the case law referred to by counsel which is now summarized. The defence asked the Court to consider the case of R. v. Kormos, unreported, December 27th, 1998, a judgment of the Ontario Court of Justice, Provincial Division, authored by Justice Vaillancourt. In that case Mr. Kormos was a politician who had attended at an office and was trying to get in this office when there was a protest ongoing and a security guard was present. A videotape had been put in evidence but it only captured a portion of the allegations. The Court made a finding of credibility regarding the complainant's evidence above and beyond the portion of events captured on the videotape.
In that case, the learned trial judge found that the contact by Mr. Kormos to the security guard was all in the category of minimal touching situations. The trial judge was cognizant of the nature of the touching or brushing by in that case and made adverse findings of credibility against the complainant. The Court relied as well upon the principle of de minimis non curat lex, that the law does not concern itself with trifles, as commented upon by the Supreme Court of Canada in R. v. Hinchey, 111 C.C.C. (3d), 353.
The Supreme Court of Canada, however, declined to support the concept of de minimus non curat lex in the criminal law. The Court also relied upon the case of R. v. LePage, 1989, 74 C.R. (3rd), 368 Saskatchewan Queen's Bench, where the Court found that there was no evidence to support an intentional application of force in the sense of being a wrongful application of force. Justice Vaillancourt characterized this as a determination as to whether the actions have the indicia of criminality and drew upon an analogy of people trying to exit a crowded subway car or elevator, moving someone out of the way, knowing that the mere application of some force upon another does not always suggest an assault in the criminal sense. The Court also referred to it as incidental touching that cannot be considered criminal conduct.
In that case, the Court found that Mr. Kormos did not have an intention to assault anyone in the criminal sense but rather engaged in transient contact intended to distract the complainant and allow the cameraman to get film footage. Justice Vaillancourt also considered the duration and results of physical contact, the complainant's desire or lack thereof to pursue a criminal charge, and the publicity of the actions by the accused.
Mr. Kormos was acquitted, and the trial judge found that there was no proof beyond a reasonable doubt of an intentional application of force in the sense of being a wrongful application of force. There was merely incidental contact to divert the attention of the complainant. The acquittal was entered on the basis that it was not assaultive behaviour independent of any potential consideration of de minimus non curat lex.
The defence in the case at bar argued that the pushing by Mr. Doan was akin to the touching by Mr. Kormos in the case referred to above. This Court does not find that to be the case. The complainant and Mr. Doan were clearly in a dispute over whether he should enter the elevator. There was clearly a difference of interpretation by the two people over the notices in the elevator. The complainant felt she was justified in preventing Mr. Doan from entering the elevator arising from her public health concerns. Mr. Doan felt he had a right to enter the elevator based on his interpretation of the notice and his feeling that the complainant was wrong.
The Court does not condone people taking matters into their hands by pushing other people around. This is not the type of incidental touching that was before Justice Vaillancourt in the Kormos case. To be clear, it is not the type of incidental touching that might happen with people leaving or entering a subway car or an elevator as referred to by Justice Vaillancourt in Kormos. Mr. Doan, in this case, appeared to make a motion which reflected a conscious intention to push the complainant out of his way and to allow his entering into an elevator which the complainant felt was contrary to public health rules. This is not at all comparable to an innocent brushing of two people coming in and out of a subway car or an elevator. In the case at bar, it was intentional touching and a wrongful application of force by Mr. Doan.
The Court would also find this is not a situation of de minimus non curat lex. This Court would note that this Latin concept has not been accepted for this type of conduct in cases in Ontario referred to by counsel in this case, and the Court in this case does not accept it as a justification or excuse for Mr. Doan's intentional application of force in the sense of being a wrongful application of force on Ms. Wright.
The Crown responded by putting before the Court the cases of R. v. Kubassek, [2004] O.J. No. 3483, Court of Appeal, and R. v. Chapman, [2008] O.J. No. 4391, Ontario Court of Justice. In Kubassek, the respondent had decided to attend a church where a same sex marriage was expected to be performed. She did so on the basis of her belief that such marriages are a falling away from God's truth. After the minister approached her at the front of the church and asked her to stop, she pushed or shoved the minister causing him to stumble backwards but not fall, and he was not injured. The trial judge and Summary Conviction Appeal Court were both of the view that de minimus non curat lex prevailed and that there should be an acquittal.
The Court of Appeal noted that the Supreme Court of Canada in R. v. Hinchey, supra, did not resolve the question whether the de minimus principle provides a defence to a criminal charge. The Court in Hinchey specifically left open the question. In Kubassek, the Court of Appeal specifically found that the conduct of the accused was not trivial, it was intentional. The Court simply found that even if it was available in law, it was not available in this case.
The Court specifically declined to address the issue of whether a defence of de minimus non curat lex is available in criminal law in Ontario or Canada. Ms. Kubassek was, accordingly, found guilty.
In the trial decision in R. v. Chapman, the Court considered the situation of a rally or protest at the Six Nations near Caledonia, Ontario. It was a tense and volatile situation. The defence argued de minimus. The Court found that the Court could not classify the actions of the accused in taking steps towards the complainant and extending her arm towards him in an obvious pushing motion to be trivial. The facts in that case are unlike those in the case at bar. In any event, the accused was found guilty of assault. In that case, the Court referred to R. v. Carson, [2004] O.J. No. 1530, Court of Appeal, where the Court referred to the context of domestic violence and the societal harm resulting from that type of crime as a basis for not finding that the defence of de minimus applies.
In this case, the Court finds that there was the intentional application of force, a wrongful application of force by Mr. Doan pushing Ms. Wright from behind at the elevator. He was taller than the female complainant, and he pushed her from behind as she was trying to explain her interpretation of the public health notice that during COVID-19 only one person was permitted in the elevator. Rather than engage in a discussion, Mr. Doan responded by pushing her from behind so that he could get his way of going in the elevator regardless of any interpretation of the public health notice or any health concerns of Ms. Wright.
The Court accepts the complainant's testimony in relation to the push as verified on the video that he did push her and that she did not touch him before that happened. He intentionally applied force upon her, which was a wrongful application of force. To use the phrase of counsel, his conduct had "the cloak of criminality".
The Court finds specifically that there is no defence of de minimus available in this case. Accordingly, the Court finds that the Crown has proven beyond a reasonable doubt Mr. Doan intentionally inflicted force on Ms. Wright by pushing her in the area of the elevator and finds him guilty of this assault charge.
Incident related to complainant being struck in the face area.
It is important to note that there is no video evidence with respect to the portion of allegations relating to Mr. Doan somehow striking the complainant in the face and causing a small laceration to the inside of her upper lip. The Court is left with the testimony of the two parties in that regard. Mr. Doan essentially gave a version of events with respect to a non-intentional or possibly accidental movement causing the injury, if any, to the inside of the complainant's lip. Essentially, he indicated that as the complainant was following behind him down the stairs around the third floor and he was travelling on his roller blades stepping on steps, that he turned to raise his hand towards the complainant, palm out. He explained that he has a deformed hand and that he was using his right hand to hold the railing as he went down the stairs. He testified that this hand had become tired and so he stopped and turned around to face Ms. Wright on the stairs. It wasn't clear from his evidence if he actually said the words"Stop chasing me, I didn't do anything wrong" or if, in his evidence, he was referring to his raised hand as being body language for him to stop chasing him.
In any event, he testified that she then ran into his hand when his right hand was raised, and this touched her left hand which was holding her phone, and then in return this hit her mouth. He explained that just prior to her running into his hand, the complainant was holding her phone in her hand, looking at it, and she came in contact with his hand, causing the force to her face.
The Court considers R. v. W.(D.). While the Court does not believe that version of events, the Court does not reject it. It is a version which can raise a reasonable doubt.
The Court also considers the third branch of the W.(D.) test. The Court reviews the testimony of Ms. Wright in relation to the allegation that she was struck in the face causing a small abrasion to the inside of her upper lip. Ms. Wright indicated that Mr. Doan punched her in the area of her jawline on her right side and she fell back into the elevator. She indicated that her lip was busted and swollen. She told him"You really should not have done that". At that point, he was on the inside of the elevator with her and she was standing in the doorway of the elevator. (From a review of the video, it is apparent to this Court that Mr. Doan did not punch Ms. Wright in the jaw or anywhere in the elevator.)
She testified that he motioned to punch her again. She said these were new elevators and the cameras were working. Again, the video does not show any action on his part consistent with trying to punch her either a first or a second time.
After the complainant was shown the video following her recitation of the events in the elevator, in examination-in-chief she stated that after he pushed her, she informed him that she was calling the authorities. Then, she testified, he punched her in the lip. Ultimately, he took the staircase down. She indicated that he walked out of the elevator. He roller bladed down the hallway, and then she left the elevator. She followed him as he went down the stairs of the building still wearing his roller blades. It was her intention to go to the office of the superintendent for the building in relation to what had happened with Mr. Doan in the elevator. She testified she had tried to call the superintendent on her cell phone but was unable to get through to him.
She related that the incident in the stairwell was on the third floor heading into the stairwell. She indicated that he was on his way downstairs and she was behind him. She testified that he turned around to punch her and kick her with the roller blades. She stepped back, so he missed hitting her. She testified that the punch to her right jaw was something that happened in the elevator. She testified that he punched her phone up into her lip, causing her lip to be busted. She indicated that she was standing in the elevator doorway when she was injured in her mouth by Mr. Doan. As indicated, the video of the elevator shows this did not happen.
Then the two of them exchanged words. She told him that she was not going to let him get away with this. She was angry but she wanted to let the authorities deal with it. She did not wish to approach him and get closer. She said the authorities would find him because he was on camera. She stated that he called her a "dumb bitch", and that she should shut up, that she was a "stupid N", clarifying she was saying that he called her, in her testimony used the phrase"a stupid nigger".
He told her that nothing would happen to him"You watch". She indicated in cross-examination that these slurs were stated in the staircase, not the elevator. In cross-examination, she also expanded on the list of slurs that he had made to her of beyond what she had stated in examination-in-chief. It is interesting that in cross-examination she stated that he struck her in the face with a closed fist. At another point she maintained, even after she saw the elevator video, that Mr. Doan had punched her as she was in the doorway of the elevator. That is where she indicated that he punched her phone into her face rather than punching her face directly, and busted her lip.
She also indicated he also gestured to punch her in the same area. At that point she was standing in the elevator and he was on the outside of the elevator. The video shows that did not happen.
She indicated she had been punched with a closed fist where her phone was pushed up into her face upwards. She explained that he hit her phone and the phone hit her face. There is a clear inconsistency that arises in her evidence. She said she was struck in this fashion by Mr. Doan in the stairway, not the elevator.
The complainant was cross-examined regarding her prior statement to the police that Mr. Doan had struck her in the face, and she made no mention of striking the phone into her face. That was an inconsistency with her second version that he struck her phone in her hand which came in contact with her face due to the force of striking the phone in her hand. She was also inconsistent, as indicated, as to the location of being struck in the face. It is clear that she told the police officer in her statement that this punch was in the elevator. In cross-examination, she tried to explain that it was by the elevator, not in the elevator.
Her evidence was more in the nature of near the stairway, not near the elevator. So the Court found this explanation somewhat disingenuous and resulting in a concern regarding her credibility and/or reliability as it resulted to the assault allegation to her face. In cross-examination she testified that the punch to her face was in the hallway near the door to the stairway which is some distance away from the elevator, this Court would find. She agreed in cross-examination that she followed Mr. Doan out of the elevator as she wanted to take a photograph of him with her phone.
Although at one point in cross-examination she refused to agree she was following him as he walked down the stairs in his roller blades, she later agreed that she was walking behind him in the same direction that she was following him. She did not agree that it was difficult for him to negotiate the stairs walking in his roller blades. At one point she said in cross-examination he hit her with a closed fist upwards to her phone which he pushed into her jaw.
Overall, there were numerous inconsistencies in her evidence with respect to Mr. Doan striking her in the face, how it happened and where it happened. The Court has a reasonable doubt with respect to the allegation that he struck her intentionally in the face, also based on the evidence of Mr. Doan that it was essentially an accidental contact in the stairway.
In all the circumstances, the Court has a reasonable doubt with respect to the allegation that he struck the complainant in the face. As indicated, the evidence of Ms. Wright caused the Court concern as it related to the allegation of being struck in the face. This arises from the clear inconsistencies as noted above.
On the third branch of the R. v. W.(D.) test, the Court has difficulty with the Crown's case regarding the allegation of Ms. Wright being struck in the face. Essentially, the Court finds that the complainant's testimony with respect to this allegation changed significantly. There were numerous inconsistencies as noted above. The Court cannot accept the credibility and reliability of the complainant's evidence on this point and, as indicated, the Court finds that the Crown has not proven the charge of Mr. Doan striking Ms. Wright in the face beyond a reasonable doubt.
In the end, as indicated, the Court finds Mr. Doan guilty of the assault which was the intentional push in the area, it was also the shove of the complainant in the elevator area, but the Court finds Mr. Doan not guilty of any assault related to an allegation of the complainant being struck or injured to the upper lip of her face.
Those are the reasons of the Court.
Form 2 Certificate of Transcript
Evidence Act Subsection 5(2)
I, Clare Humphreys, certify that this document is a true and accurate transcript of the recording of February 9, 2022, in the Ontario Court of Justice, held at 60 Queen Street West, Toronto, taken from Recording No. 4811_M2_20220209_093614 6_BROWNBE.dcr which has been certified in Form 1.