ONTARIO COURT OF JUSTICE
CITATION: R. v. Thomas, 2022 ONCJ 309
DATE: 2022 07 05
COURT FILE No.: Metro North, Toronto Region 19-45005297
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Melvin Mac THOMAS
Before Justice Cidalia Faria
Heard on March 28, 29, 2022
Reasons for Judgment released on July 5, 2022
Ovais Ahmad...................................................................................... Counsel for the Crown
Tobias Okada Philips........................ Counsel for the defendant Melvin Mac THOMAS
Faria J.:
I. Overview
[1] Two grown men get into a fist fight at a carwash because of whose turn it was to wash their car. This led to one man getting injured and the other man criminally charged.
[2] On December 22, 2019, Mr. Thomas and Mr. Munoz-Lucio were waiting in line at the car wash. Mr. Thomas thought Mr. Munoz-Lucio butted in line. Mr. Munoz-Lucio disagreed. So, they got into a physical fight over it. At one point Mr. Munoz-Lucio pulled out 2 of Mr. Thomas’ dreadlocks. At another point Mr. Thomas pulled out his keyring from his pocket and stuck Mr. Munoz-Lucio with a key, puncturing him.
[3] Mr. Thomas is charged with Assault with a Weapon s.267(a), Assault Causing Bodily Harm s.267(b) and Possession of a Weapon, a keyring, contrary to s. 88(1).
[4] At issue is whether Mr. Thomas pulled out the keyring with a protruding key during the fight and used it, which is why Mr. Munoz-Lucio pulled out his dreadlocks, or whether Mr. Thomas pulled out the keyring and used it in self-defence after Mr. Munoz-Lucio started to pull out his hair.
II. Position of the Parties
[5] Both parties agree Mr. Thomas and Mr. Munoz-Lucio were in a consensual fight. Both parties agree Mr. Thomas used a key on his keyring as a weapon and he did puncture Mr. Munoz-Lucio which constituted bodily harm.
[6] However, the defence submits it was no longer a consensual fight when Mr. Munoz-Lucio grabbed a hold of Mr. Thomas’ dreadlocks. He submits Mr. Thomas used the key to defend himself from the bodily harm the hair pulling was causing Mr. Thomas. He argues Mr. Thomas’ actions were reasonable in the circumstances to get Mr. Munoz-Lucio to stop pulling his dreadlocks. He submits Mr. Thomas used the key in the keyring to protect himself and the Crown has not disproven self-defence.
[7] In addition, the Defence submits that even if I do not accept Mr. Thomas’ evidence, his testimony should leave me in reasonable doubt as to his guilt, or on the totality of the evidence I should have a reasonable doubt and therefore Mr. Thomas should be acquitted on both assault charges. No submissions were made on the possession of the keyring with keys.
[8] The Crown submits the Court should accept Mr. Munoz-Lucio’s evidence that Mr. Thomas pulled out the key in the keyring during the physical altercation and came at Mr. Munoz-Lucio with it, before Mr. Munoz-Lucio grabbed Mr. Thomas’ hair. He submits the video surveillance shows Mr. Munoz-Lucio backing away from Mr. Thomas. Further the Crown submits Mr. Thomas had other more reasonable options than to pull out his keys and use them as a weapon such as walking away from the altercation.
[9] In the alternative, the Crown submits that after Mr. Munoz-Lucio lets go of Mr. Thomas’ dreadlocks, and they are disengaged, Mr. Thomas threw one last punch while in possession of the weapon in residual anger before he walks away which constitutes an assault with a weapon.
III. Evidence
[10] Mr. Munoz-Lucio testified that in the early afternoon of December 22nd, 2019 he went to a car wash in the city of Toronto to wash his car. There are 6 Bay areas where cars enter to be washed. He lined up near Bay #5 and entered it after the car in Bay #5 left. Once in Bay #5, he exited his vehicle and heard a man “screaming” at him that he had “butted in”. The man was Mr. Thomas. Mr. Munoz-Lucio testified he calmly responded with “What’s the problem sir?” He indicated he’d not butted in, and Mr. Thomas could go into the next car wash Bay #6 which was now empty.
[11] He testified Mr. Thomas approached him and “body checked” him chest to chest so he pushed him away. Then Mr. Thomas punched him, and he punched him back. They proceeded to fight. He saw Mr. Thomas “go to his car” and “get a knife”. He said he backed away, then bearhugged Mr. Thomas. He testified he was “stabbed”, he was hit in the head, and then “fearing for his life” he grabbed Mr. Thomas’ deadlocks and pulled out two of them. Once Mr. Thomas let go of him, he let go of Mr. Thomas and Mr. Thomas ‘took off’ in his car.
[12] Mr. Munoz-Lucio sustained a “penetrating trauma” wound to the lower left side of his abdomen which required 2 staples. There were no defensive wounds. He also sustained some blunt force trauma to the left side of his head.[^1] Photos of his injuries show a large discolouration on his abdomen and a light bleeding cut to his scalp.[^2] Photos of Mr. Munoz-Lucio’s clothes show a cut to his black t-shirt, a cut in his black Calvin Klein jacket, a cut on the sleeve, and blood on the collar.[^3]
[13] In cross-examination Mr. Munoz-Lucio maintained he was calm and did not swear at Mr. Thomas. He testified Mr. Thomas approached him. He was absolutely certain Mr. Thomas went to his car to get a knife during the altercation. When Mr. Munoz-Lucio could not point to when this happened on the video surveillance tape, he said he believed the tape was “altered” and does not show it. Mr. Munoz-Lucio also testified he was certain he saw a knife and that Mr. Thomas showed it to him. He described it as being stainless steel with a brown leather handle, a silver butt, and it looked like a dagger. The handle and the blade were about 6 inches long.
[14] He did agree that he pulled Mr. Thomas’ dreadlocks but testified he only did so after he saw the knife and bearhugged Mr. Thomas.
[15] The Crown also filed on consent the voluntary video statement Mr. Thomas provided to police when he was arrested. After his Rights to Counsel were given, and he was cautioned, he admitted he had been involved in an altercation with a guy at the car wash. He explained the guy butted in line and when he told him he had butted in, he swore at him and told him to “go to the next one.” He admitted there was pushing and punching and that he grabbed his keys when the guy “ripped” his hair out. He described the key ring, “it has a round magnetic hook” and that he hit the guy with it. He was apologetic and said he should have walked away.[^4]
[16] Mr. Thomas testified in his own defence at trial. He testified he was at the car wash waiting in line for Bay #5 when Mr. Munoz-Lucio pulled up beside him. When the car in Bay #5 left, Mr. Munoz-Lucio pulled out and into the Bay ahead of him, butting in line. Mr. Thomas pulled up behind him, exited his car and told him he had butted in line and should move his car. He testified Mr. Munoz-Lucio swore at him and he swore back. Mr. Thomas said he was going back to his car when Mr. Munoz-Lucio came from behind. He testified Mr. Munoz-Lucio pushed him, and then he pushed back, and they then got into a fight. He testified that when the fight moved into the car wash stall, Mr. Munoz-Lucio pulled his hair, which made him “angry”, “panicked” and he “wanted to get loose”. So, he “reached for the closest thing I had which was my keys” in his pocket “because he was pulling my hair and I was scared”.
[17] During testimony Mr. Thomas offered to show the court the keys he used. Instead, counsel took a photo of the key ring and the keys during a recess and filed the photo as an exhibit.[^5]
[18] Mr. Thomas testified the key protruded from his fingers, and that he struck Mr. Munoz-Lucio with it. He also admitted to hitting him with the lock part of the keyring. He testified he did not know he had punctured Mr. Munoz-Lucio, rather he “hit him so he could let go”. He admitted to “feeling bad”, that he had been “raised better than that” and he wished to apologize.
[19] In cross-examination, Mr. Thomas agreed the key portion of his key ring was about 3 inches, that the key ring had a curve, and that it had a brown colour. He agrees he is about 5 inches taller than stocky Mr. Munoz-Lucio who was heavier than his 250 lbs. He agreed he was not scared of Mr. Munoz-Lucio during the fight until Mr. Munoz-Lucio pulled his hair, and two dreadlocks were ripped out of his head. During the two points in time the Crown suggested Mr. Thomas could have walked away from the fight, Mr. Thomas responded “he was in a fighting stance” “both of us continued” “both are fighting, doesn’t matter if going back or forth, we are fighting”. When the Crown pointed to a light spot on the video as his key prior to the re-engagement of the fight, Mr. Thomas disagreed and said he had not reached for his keys at that point. When asked if Mr. Thomas has the keychain in his hand during his very last swipe at Mr. Munoz-Lucio once they disengage, Mr. Thomas responded “I’m not sure.’
[20] The entirety of the altercation, from a distance is captured on the car wash’s video surveillance.[^6]
IV. Law
[21] In this case, as in every criminal case, Mr. Thomas is presumed innocent unless and until the Crown has proven each element of each offence beyond a reasonable doubt. The burden of proof rests with the prosecution throughout the trial and never shifts to the accused. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence, and it is not enough for me to believe Mr. Thomas is possibly or even probably guilty. Reasonable doubt requires more. It lies far closer to absolute certainty than to a balance of probabilities. However, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty[^7].
[22] In the context of this two witness case, the principles articulated by the Supreme Court of Canada in R. v. W.D[^8] assist:
If I accept the evidence of Mr. Thomas which is inconsistent with guilt, I must acquit.
Even if I do not accept the evidence of the defence, if it leaves me with a reasonable doubt, I must acquit.
Even if I do not accept the evidence of the defence, and it does not raise a reasonable doubt, on the totality of the evidence I accept, if I have a reasonable doubt, I must acquit.
[23] To assess each witness’ testimony, I must consider the credibility and reliability of the account provided. Credibility and reliability are distinguished from each other. Credibility relates to a witness’ sincerity, whether she/he/they is speaking the truth as she/he/they believe it to be. Reliability relates to the accuracy of the testimony. To determine accuracy, the witness’ ability to observe, recall and recount is assessed. A credible witness may give unreliable evidence[^9]. As a result, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.[^10]
[24] If I accept the defence of self-defence, the relevant Criminal Code provision reads as follows:
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.
Factors
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.
[25] The onus is on the Crown to disprove self-defence beyond a reasonable doubt.[^11]
V. Findings of Fact
[26] Both Mr. Thomas and Mr. Munoz-Lucio lost their temper on December 19, 2019.
[27] Mr. Munoz-Lucio was not accurate on several points during his testimony. He stated Mr. Thomas came to him, yet the carwash video surveillance shows Mr. Munoz-Lucio walking to Mr. Thomas and coming up quite close to him. He insisted Mr. Thomas went to his car to get a knife, but the video showed no such action. When confronted with that fact, he suggested the tape had been altered rather than admit his memory could be faulty. At times Mr. Munoz-Lucio became agitated, loud, and frustrated on the witness stand when asked reasonable questions.
[28] Granted, given the injury he sustained, Mr. Munoz-Lucio could understandably be insistent he was “stabbed with a knife”, however, I find Mr. Munoz-Lucio’s reluctance to acknowledge simple suggestions such as the presence of Mr. Thomas’ vehicle as possibly waiting in line for Bay #5 on the video, his reluctance to admit he was angry at the time, his suggestion the tape was altered to remove Mr. Thomas going to his car to get a knife, when he otherwise admits the video shows the totality of the altercation, in totality undermined his credibility.
[29] Mr. Thomas remained consistent throughout most of his testimony. He admitted conduct against his self interest such as swearing back at Mr. Munoz-Lucio, consensually engaging in the fight, getting angry, hitting as hard as he could, ripping Mr. Munoz-Lucio’s jacket and cutting it. Mr. Thomas was even earnest at times, such when he offered to show the Court the key on the key ring he used and how he used it during testimony. These admissions enhanced Mr. Thomas’ credibility.
[30] First, I find Mr. Munoz-Lucio’s demeanour on the carwash video surveillance prior to the fight to be one of confident aggression. He approaches Mr. Thomas and is quite close to him when he says Mr. Thomas chest bumped him. He was certainly in Mr. Thomas’ personal space. It matters not who touched who first, whether it was Mr. Thomas with a chest bump, or Mr. Munoz-Lucio with a push – I find it was clear on the video tape that both men were equally involved in a consensual fight.
[31] Second, I find the carwash video surveillance shows that after the initial exchange of blows, the two men disengage, and the fight moves from one spot to another. Mr. Munoz-Lucio is backing up. Mr. Thomas testified this was a back and forth with both men in a fighting stance. Mr. Munoz-Lucio testified he is backing up because Mr. Thomas went back to his car to get a knife. The video shows no such action by Mr. Thomas. I accept Mr. Thomas’s evidence on this point.
[32] Third, prior to re-engaging in the fight, the Crown submits Mr. Thomas reaches into his pocket and has the keyring and the key in his hand just before the fight continues into the carwash stall. I find this is not clear on the video. Mr. Thomas does move his arm, however his hand movements are not definitive, the video is too grainy, and the view too distant from the action to conclusively find Mr. Thomas obtained his keys at that point, and I do not so find.
[33] Fourthly, the second camera angle of the carwash video shows both men in the carwash stall entangled with each other. Each punching and pushing and shoving the other. Mr. Munoz-Lucio is pulling Mr. Thomas’ dreadlocks, and Mr. Thomas is furiously punching at him. They disengage.
[34] I accept the consensual fight ended when Mr. Munoz-Lucio ripped out two of Mr. Thomas’ dreadlocks and kept pulling his hair causing him bodily harm. I accept that is when he used his keys to strike Mr. Munoz-Lucio to protect himself.
[35] Having accepted Mr. Thomas’ evidence on what he did and when he did it. I turn to the issue of whether what he did was reasonable in the circumstances.
[36] Once Mr. Munzo-Lucio held on to Mr. Thomas’ hair, Mr. Thomas had no means to walk away. The nature of the force used on Mr. Thomas, the pulling of the dreadlocks, was ongoing. Although the two heavy set, adult, middle-aged men were equally matched, the nature of the force Mr. Munzo-Lucio used changed the nature of the fight from a consensual one to an assault causing bodily harm Mr. Thomas needed to protect himself from. I accept that he “panicked” and he “wanted to get loose”. So, he “reached for the closest thing I had which was my keys” in his pocket “because he was pulling my hair and I was scared”. He punctured Mr. Munoz-Lucio once. I find his use of force to protect himself and disengage from Mr. Munoz-Lucio proportionate and reasonable in the circumstances.
[37] Having accepted Mr. Thomas’ evidence and his actions as reasonable in the circumstances, I will address whether the Crown has disproved Mr. Thomas was acting in self-defence.
[38] The Crown has not. As indicated earlier, I am not persuaded Mr. Thomas took out his keys prior to re-engaging in the consensual fight. I do not accept as credible and reliable beyond a reasonable doubt that Mr. Munoz-Lucio bear hugged and pulled Mr. Thomas’ hair after he saw a weapon. As a result, the Crown has not disproven that Mr. Thomas struck Mr. Munoz-Lucio with his keyring and key in self-defence beyond a reasonable doubt.
[39] Finally, as they separate, Mr. Thomas does swing at Mr. Munoz-Lucio one last time. It is unclear if there is anything in his hand. This action I find to be part of the continuing fight. Mr. Munoz-Lucio’s reaction to the disengagement is not one of distress at all. I accept Mr. Thomas did not know he had punctured, and injured Mr. Munoz-Lucio. I accept he believed that was just the end of the fight between two men as he testified. Moreover Mr. Munoz-Lucio’s subsequent actions gives credence to this perception. Mr. Munoz-Lucio is seen on video following Mr. Thomas for a few steps as he left, then Mr. Munoz-Lucio, casually walks back to his vehicle, took off his jacket, inserted coins into the machine and began to his wash car.
[40] Regarding count 3, the possession of the keyring and key for a purpose dangerous to the public peace, or for the purpose of committing an offence, I find that Mr. Thomas possessed his keyring and keys for the lawful purpose keys are required for prior to the consensual fight and he did not possess it for a dangerous purpose or for committing an offence.
VI. Conclusion
[41] As a result of my findings, I find Mr. Thomas not guilty of all three charges.
Released: July 5, 2022
Signed: Justice Cidalia C.G. Faria
[^1]: Exhibit 4: Medical Records, Angel Munoz-Lucio, December 22 & 23, 2019, Sunnybrook Hospital [^2]: Exhibit 2: Photos 2b, 2c, 2e, [^3]: Exhibit 2: Photos 2d, 2f, 2g, 2h, 2i, [^4]: Exhibit 3: Video tape statement of Mr. Melvin Mac Thomas to police, December 22, 2019. [^5]: Exhibit 5: Photo of keyring with seven regular keys and a 3 inch circular protruding one belonging to Mr. Thomas [^6]: Exhibit 1: Car wash video surveillance, Bay entrances & Bay 5 [^7]: R. v. Lifchus, 1997 319 (SCC) [^8]: R. v. S.(W. D.) 1994 76 (SCC), [1994] 3 S.C.R. 521 [^9]: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at ¶33, R. v. H.C. 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at ¶ 41 [^10]: R v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.) at ¶47; R v. J.W., [2014] O.J. No. 1979 (C.A.) at ¶26 [^11]: R. v. Avril, 2015 ONSC 2158 at ¶10