Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 09 20 COURT FILE No.: Windsor 22-81100284

BETWEEN:

HIS MAJESTY THE KING

— AND —

TOBIAS BISHOP

Before: Justice C. Uwagboe Heard on: June 28, 2023 Reasons for Judgment released on: September 20, 2023

Counsel: A. Nguyen, for the Crown F. Lyons, for the Defendant, Tobias Bishop

Uwagboe J.:

[1] Mr. Tobias Bishop stands charged with the assault of his brother, Shai Bishop, on March 11, 2022.

Background

[2] It is alleged that on March 11, 2022, Shai Bishop received a call, while at his girlfriend’s house, that prompted his attendance at his residence (formerly the residence of his mother now deceased). The phone call was purported to be from a neigbour who suggested that he had a problem with Tobias Bishop and damaged the home in an effort to do him harm.

[3] Mr. Shai Bishop attended at the home to find it in disarray with the front door damaged. His brother, Tobias, was passed out on the couch and Shai Bishop made attempts to wake him by both striking him with pillows and shaking him. He testified that he went outside and called an ambulance to attend.

[4] Upon hearing something in the residence, Shai Bishop went back inside. Mr. Shai Bishop advised that he approached his brother in an agitated state and asked him what he did to his mother’s house. Mr. Shai Bishop alleged that Tobias Bishop accused him of smoking his meth. He described Tobias as “wild eyed” making “irregular movements” with “white at the sides of his mouth.” They closed the space between them and as Mr. Shai Bishop took off his glasses, Mr. Tobias Bishop punched him in the mouth causing him to bleed. This exchange is alleged to have taken place inside of a minute. After being struck Shai Bishop left the residence and called the police.

[5] Upon police arrival, damage was observed to the residence and some discussion was had with Shai Bishop and he was later photographed for injuries.

[6] Police attended inside and called out for Tobias Bishop and he emerged from his room and was arrested without incident.

[7] The Crown led evidence from Shai Bishop and Officer Loebach. Mr. Tobias Bishop testified in his own defence.

Position of the Parties

Defence

[8] The Defence submits that the evidence of the complainant, Mr. Shai Bishop, lacks credibility, reliability, or corroboration. Defence submits that he was motivated to remove his brother from the residence. That he did not like his brother being there. His timelines were inaccurate. That he misled the police about Tobias’ standing with the house. That Mr Shai Bishop embellished his evidence surrounding the attendance at the residence and the condition of the knuckles. Further, that Shai Bishop misled the Court about the timing of his arrival at the home and that his call for an ambulance is a fabrication. His alleged behaviours of his brother versus the police observation on his arrest diverge in a manner that belies belief. There is not sufficient evidence to refute the version of the accused that he was asleep in his room and at the very least the evidence of Tobias Bishop should leave the Court with a reasonable doubt.

Crown

[9] The Crown submits that the evidence heard at trial requires a classic W.(D) assessment. The Crown submits that the evidence of the accused should be rejected. The evidence of Tobias Bishop was inconsistent, unreliable, lacked credibility, and was not worthy of belief. The Crown points to difficulty in Tobias Bishop recalling details about his own narrative such as what he made to eat before bed. Further, the Crown suggests that claiming to be a heavy sleeper and waking from that deep sleep due to a soundless glance from the door belies common sense. That the evidence of Mr. Shai Bishop was credible, truthful, and assists the Court in its fact finding endeavour. The independent evidence corroborates the narrative of Mr. Shai Bishop and the evidence on a whole ought not to leave this Court with a reasonable doubt as to the guilt of Tobias Bishop.

Evidence and Analysis

Shai Bishop

[10] I listened carefully to the account of Mr. Bishop. He testified to being punched by his brother and that photo exhibits 1 – 3 represent the aftermath of that assault. The fresh injury was corroborated by the police evidence including observation of blood in his mouth at the time the police arrived. I found him to be a good historian and did not embellish his evidence. At one point he described the assault as a “love tap” from his brother. He admitted to the Court that he got “hot” (or angry) as well in his interaction with his brother. I found him to be credible.

[11] He suggested to this Court that he loved his brother and that his brother had an addiction problem that led him to prefer staying at his girlfriend’s home often, including on the evening leading to the morning of this event. He testified that he wanted help for his brother and wished that more could be done for him for his mental health and addiction issues.

[12] His narrative about what brought him to the home at that time and his actions before and after the assault made sense. His narrative was coherent and supported in large part by the independent evidence in this case. I found his evidence to be reliable and helpful to the Court.

[13] I accept Mr. Shai Bishop’s evidence about the condition of the home when he attended. His account of his exchange with his brother was detailed and logical. It made sense. It was believable.

[14] I do accept also the defence submission that his timing of the event was inaccurate. That said, I do not find the inconsistency in timing to be material to this Court’s assessment of the evidence.

PC Derek Loebach

[15] Officer Loebach testified as well. His attendance at the scene did not accord with the timing set out by the complainint in this matter. As I indicated above I do not find that to be material.

[16] He made observation of the damage to the door as described by the complainant. His initial observations of the complainant on the scene were consistent with the photo exhibits 1 - 3 that were filed with the Court. In addition, he testified to observing fresh blood in the mouth of the complainant as well as on his shirt upon his arrival at the residence.

[17] His evidence about the demeanour of the complainant was consistent with how Mr. Shai Bishop described himself. The officer described him as “worked up.”

[18] The officer described the home as being in disarray. More specifically that there were items on the ground and on the couch, stating the house was “messy.” This is consistent with the account of Shai Bishop and inconsistent with the evidence of Tobias Bishop.

[19] Officer Loebach did not note any injury to the hands of Tobias Bishop following his uneventful arrest. The evidence of Officer Loebach corroborated in large part the evidence of Shai Bishop. In particular, his fresh injury, the damage to the home, and the disarray in the home.

Tobias Bishop

[20] Mr. Tobias Bishop testified in his own defence. In sum, his evidence amounted to an uneventful evening at home noting only hearing sounds of a female coming from his brother’s room. He then recalled “people peeking in his room,” prior to the police calling to him for his arrest. He did not account for actually seeing his brother at any point.

[21] He testified to being a heavy sleeper. I had difficulty reconciling his heavy sleep that would have prevented him from hearing any of the commotion outside the home (which I do accept occurred), including the attendance of the police in the home, but would have not been so heavy as to keep him asleep when he was looked at briefly from his bedroom door.

[22] I also noted that his evidence, in cross-examination, about “people peeking in his room” changed to “someone peeking in his room” and he guessed that this must have been his brother.

[23] He denied assaulting his brother. Further, he denied any confrontation at all with his brother.

[24] He detailed his routine when he got home that evening, suggesting that he cooked food but when pressed could not recall what he made to eat, though he accounted for putting the dishes away so there was not a mess.

[25] He also denied that the house was in disarray at all. He specifically denied that there was anything on the couch or the floor contrary to the observations of the other witnesses at trial.

[26] I do not find that his version of events, regarding the mess or his lack of recollection about what he had to eat, sufficient to reject his account of being asleep the whole night on their own.

[27] Mr. Tobias Bishop did not testify to a relationship problem with his brother or that there was acrimony of any kind over his tenancy there. He did not refute his brother’s account as to how long he lived there or why he came there nor was he obliged to.

[28] Mr. Tobias is under no obligation to provide an answer of any kind for the injury caused to his brother. That burden rests with the Crown exclusively.

Credibility & Reliability

[29] Defence counsel, through submission, reminds this Court about the principles set out in R. v. Villaroman, 2016 SCC 33, that when the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole.”

[30] To determine whether the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof. R. v. Smith, 2016 ONCA 25

[31] Inferences consistent with innocence may arise from a lack of evidence. The Court in R. v. Villaroman stated the following:

“Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”

[32] The Crown may need to negative reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused… ……. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.”

[33] Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.

[34] I do not find that the evidence in this case wholly or substantially relies upon circumstantial evidence. The evidence of the complainant was direct evidence, that was both completely credible and reliable. I found Shai Bishop to be an intelligent and articulate witness who gave his evidence in a manner that demonstrated to me that he was accurately recalling and relating a real incident. The inaccuracy in the timing of the events is of little significance and is in my view indicative of human imperfection in recall, having no impact on the essential accuracy or truthfulness of his allegations. R. v. Jaura, 2006 ONCJ 385 I find his evidence believable and accept it.

[35] The evidence of the accused, Mr. Tobias Bishop, was neither impressive nor unimpressive. It was a general denial of the allegations, “ it necessarily lacked detail, substance and the flavour that can sometimes alternatively either support or undermine believability. His demeanour while testifying was unremarkable.” There were contradicitons in his evidence such as the person or persons at his door and his suggestion of a good memory of the events while lacking details pertinent to the narrative of what he did that evening. He did not contradict himself in his denial of the assault. Viewed in isolation, his version of events may not be rejected as untrue.

[36] The Court in R. v. Jaura determined that a conviction may rest solely on the evidence of a complaining witness provided the accused’s evidence was given a fair assessment.

“In summary, it is my view that the case law establishes that, in a “she said/he said” case, the Rule is that a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence.”

[37] In this case, I am not left to only draw from the evidence of the complainant to arrive at my determination in this matter. I find that the evidence of the complainant, the police witness, and the exhibits provide a cohesive narrative of the events that I accept to be credible and true when I assess the evidence as a whole.

[38] I have considered the defendant’s evidence and kept the burden of proof and principle of reasonable doubt firmly in mind. I have allowed for the possibility of being left in a state of reasonable doubt. When I consider the evidence of the accused in the context of the evidence as a whole, I am not left with a reasonable doubt as to where the truth lies. I am absolutely convinced of the truth of the complainant’s evidence and reject the defendant’s evidence because it is inconsistent with the complainant’s evidence which I accept beyond a reasonable doubt.

Conclusion

[39] I find Mr. Tobias Bishop guilty as charged.

Released: September 20, 2023 Signed: Justice C. Uwagboe