Court File No.: Brampton 21 15390 Date: 2023 12 14
Ontario Court of Justice
Between: HIS MAJESTY THE KING
— AND —
SHANE SPRINGER
Before: Justice G.P. Renwick
Heard on: 13-14 December 2023 Reasons for Judgment released on: 14 December 2023
Counsel: M. Lisus, for the Crown A. Bakaity, for the Defendant Shane Springer
RENWICK J.:
Introduction
[1] The Defendant was charged with one count, assaulting Ricardo Pilgrim and causing him bodily harm, arising out of an incident on 20 September 2021. The prosecution proceeded summarily.
[2] This was a brief trial. Only three witnesses testified (the complainant, a police officer, and the Defendant). There were no exhibits received into evidence. In all, it took approximately three hours of court time to complete the evidentiary phase. The parties presented their case in an efficient, focused manner. Few matters require determination.
[3] At the heart of it, I must determine whether the prosecution has proven the allegation beyond a reasonable doubt. This will entail a consideration of credibility and reliability, the probative value of the evidence, and the role of corroboration, circumstantial evidence, and whether the prosecution’s high burden is met.
[4] It appears to be uncontested between the parties that the complainant was seriously injured on 20 September 2021. He required medical treatment, both by paramedics and at a local hospital. While the extent of the medical treatment may have been contested, the nature of the complainant’s injuries (head wounds) and the fact of those injuries were never at issue. Rather, the cause of the injuries (has criminal liability been established to the requisite degree) remains.
Governing 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 element of the alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant assaulted the complainant causing bodily harm, 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 a 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 the alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.
[7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate 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.
[8] 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 significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
[9] Given the Defendant’s 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.
[10] 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 him;
(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.
[11] Also, I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role or status, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.
[12] 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, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.
[13] I will not 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 and to listen to parts of the digital recordings 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
The Testimony of the Complainant
[14] Overall, I find that the complainant was believable. He presented as an unsophisticated person both in terms of education and presentation.
[15] The complainant described having permitted the Defendant to stay at his place and to sometimes use his bedroom when the complainant slept elsewhere. He received some money for this permission.
[16] The complainant knew the Defendant from their common place of employment and he had known the Defendant’s father (also from work) quite well. The complainant testified, and I believe him, that helping the Defendant was never about the money. The Defendant also admitted that he was without a place to stay at that time.
[17] There had been an occasion between them when the complainant felt it was necessary to lock his bedroom door, because the Defendant and his girlfriend were sleeping in the complainant’s bed more than occasionally, the Coronavirus was on-going, and the complainant was uncomfortable with their continued use of his bed.
[18] On the day in question, the complainant testified that he came home. The Defendant had a friend over. It was a man that the complainant did not know too well, but he did not like. Words were exchanged about bringing strangers to the complainant’s apartment. The complainant testified that the Defendant went to the bathroom. He was carrying on about this when he returned. At one point, when the complainant was not looking, he said he was hit over the head by the Defendant.
[19] The complainant initially thought that the blood coming from his head was sweat. He was badly bleeding. He told the Defendant that this was not like “back home” and they could not settle differences like this in Canada. He said that he was calling the police. All the while, as the Defendant was gathering his belongings he made threats, before he left.
[20] Police and paramedics came. The complainant went to the hospital where he received staples to two wounds, one above his right eye and one at the back of his head.
[21] During his evidence in chief, the number of staples was estimated to be 13 at the back and nine or 10 to the injury on his forehead. In cross-examination, when asked, the complainant testified:
I can’t see the back of my head. Maybe eight or nine back there and a couple in the forehead.
[22] Cross-examination suggested that the medical report noted “staples x2.” The complainant disagreed that he only had two staples, instead, he had received staples in two places. It was also suggested that the complainant was forcibly trying to remove the Defendant when he tripped and hit his own head. This was denied. Cross-examination also asked whether the complainant had initially told the police that he was “repeatedly” hit by a “baseball bat,” which was then changed to the Defendant’s bag, containing his belongings. The complainant was clear that he had been struck by the Defendant’s bag, although he was uncertain what it was inside that had caused the damage to his head. The complainant was asked whether he knew the name of his attacker and had given that to police. He said he knew who had hit him. Lastly, it was denied by the complainant that he had been drinking that day.
The Testimony of the Police Officer
[23] Constable Jameel Brown testified for the prosecution. He arrived in response to the call to the police. He observed the complainant’s injuries and the blood on the living room floor. The complainant had blood on his shirt, his pants, and his hands.
[24] The officer could not tell the court much about the location of the injuries other than “he had two large gashes on the top of his head,” but he confirmed that the complainant was treated by medical staff at the hospital. When asked by the prosecutor where the gashes were, he had no recollection or notations to refresh his memory.
[25] In cross-examination, the officer revealed that an e-brief prepared by another officer he had spoken with indicated that the complainant’s narrative had changed from the use of a baseball bat to a bag. He knew from speaking with the complainant that he believed he had been hit by a weight or a dumbbell in the Defendant’s bag. The e-brief also noted that the complainant did not know the suspect’s name, but they work together at the racetrack.
The Testimony of the Defendant
[26] The Defendant testified. He was not particularly believable. His narrative seemed to shift. He appeared sweaty and hot during cross-examination.
[27] The Defendant testified that he knew the complainant through his father and they worked together. At one point, the Defendant was not at a “fixed” place and accepted the complainant’s offer to live at his home. He claimed that he was told that he would be renting a bedroom. The Defendant was clear that the complainant was not who he thought that he was. He was always coming home drunk and he would make comments about the Defendant’s girlfriend that made her uncomfortable. After staying in the room for six days, the complainant claimed that there was a problem with the bed and locked the bedroom door. From that point until the incident, the Defendant had to sleep on the couch. The Defendant testified that he had given the complainant $1000 to stay at the apartment for two months (September and October).
[28] On the day of the incident, the Defendant was at the home to take a shower. He was with a man with whom he had plans to go out. The complainant came home and took issue with the fact that the Defendant had a guest. The complainant began yelling for the Defendant to get out. The Defendant asked for $500 back for the month of October. The complainant said that it was not that much money. After his shower, the Defendant was getting dressed, but the complainant was still coming to him, and he was drunk. When the Defendant decided to leave, the complainant shoved him from behind. He then saw the complainant tripping.
[29] The Defendant was asked what he was bringing with him. He testified that he took his basket of clothes and his bag. He took his things and went to a friend’s place down the hallway and never returned.
[30] Cross-examination of the Defendant was vigorous. It revealed several apparent inconsistencies respecting the mechanics of being shoved, whether his friend was inside the apartment or outside in the hallway watching their bikes, whether the complainant was upset because the Defendant had brought a guest over, whether the complainant had previously said that he would call the police on the Defendant or others around the building, whether the complainant fell, the number of times the complainant shoved or tried to shove the Defendant, whether he had to open the door to retrieve his belongings, and whether he or his friend had left the apartment first.
Analysis of the Evidence
[31] Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence.
[32] It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns rule the analysis because credibility does not guarantee accuracy.
[33] In other cases, reliability/accuracy plays an equal role with credibility in guiding the fact-finding process. A person is unlikely to be mistaken about having been assaulted where there are significant injuries. Reliability in this sense concerns the accuracy of the evidence. At issue is whether the witness is being truthful about the cause of their injuries. Once reliability concerns have been extinguished, significant credibility findings may predominate forensic fact-finding. This stands to reason: we may be concerned that an apparently truthful witness is inaccurate (untruthful) because of animus or motive. However, once we are satisfied that an intention to mislead is disproven, the truthfulness analysis will generally determine the fact-finding outcome.
[34] While credibility is not a proxy for reliability, [2] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, accuracy is likely established.
[35] When I consider the complainant’s testimony, in light of all of the evidence heard, I accept it as truthful and accurate. I am not concerned that any apparent inconsistency about the extent of his injuries (the number of staples used to close his wounds) undermines his reliability. I accept that he was unable to see the back of his head to count the number of staples. I accept that it took a week before the staples were removed. I accept the evidence of Officer Brown that there were two large gashes on the complainant’s head, there was blood on the complainant and the floor inside the living-room, and the complainant was treated for some period of time at the hospital (the officer was eventually relieved by a colleague during the treatment).
[36] I am not troubled by the officer’s description of the location of the injuries (the “top” of the complainant’s head), because he was unable to recall where the injuries were and he had no notations to assist his memory. It is likely with the apparent bleeding that his estimate of the location of the “gashes” is simply in error.
[37] I find that the complainant spoke with a strong Bajan accent. At times, he was asked to repeat parts of his evidence so that it could be understood by the parties. It is likely that he never told the police of a “bat,” and he was simply misheard when he spoke of being hit by a “bag.” At the very least, it is not proven (by the double hearsay) that the complainant had ever complained of being hit by a baseball bat.
[38] Did the complainant have a motive to fabricate his evidence? In this case, this is a live issue. He had disagreements with his roommate, the Defendant. He may have perceived that he was being taken advantage of by the Defendant and his guests. He had received money to let the Defendant stay at his place which he never refunded.
[39] Despite some concern that the complainant may have had a motive to fabricate, I find that the concern evaporated for the following reasons:
i. There is no evidence besides the Defendant’s testimony, which I reject on this point, that the complainant was drunk;
ii. The complainant testified in chief that he had locked his bedroom to prevent the Defendant from using it, a fact that painted him in a poor light; and
iii. The other bedroom had an occupant, “Daley;” this supports the complainant’s testimony that he never rented a bedroom to the Defendant, rather, he permitted him to use his bedroom when he was away.
[40] In the end, I accept as believable and accurate what the complainant said about his injuries and who had caused them.
[41] In respect of the Defendant’s testimony, I had significant concerns about his reliability as a witness. [3] His testimony was equally malleable and evolving. There were parts that did not accord with common sense.
[42] For example, the Defendant denied that he was ever upset with the complainant when the latter locked the bedroom door. This defies credulity. On the Defendant’s account, this happened within the first two weeks of his arrival (he arrived sometime during the first week of September and had only spent six nights in the complainant’s bedroom), and he would have been required to sleep on the couch for about one week, despite having paid rent for the bedroom.
[43] The Defendant’s testimony is that he was being kicked out, unfairly, and he was leaving when he was shoved from behind. If that is so, why would he have had to re-enter the apartment to grab his belongings in the storage closet?
[44] The evolving nature of how the Defendant was shoved and how the complainant tripped and presumably injured his head in two places was equally problematic.
[45] Though he was never asked, the officer did not testify that there was blood anywhere else in the apartment, besides the living room. I find that this is a small piece of circumstantial evidence that undermines the Defendant’s narrative that the complainant was likely injured by tripping in the front doorway. The nature of the injuries is another small piece of circumstantial evidence that undermines the Defendant’s theory of a single trip as the cause of the complainant’s substantial injuries in two opposing places on his head. I have kept in mind that it was never suggested that there was any other cause of the two cuts to the complainant’s head, besides the alleged tripping.
[46] What, if any, weight should a trial judge give to the presentation of the witnesses during their testimony? Many courts have cautioned triers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness:
It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness. [4]
[47] Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness’ presentation:
It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges have the “overwhelming advantage” of seeing and hearing from witnesses. [5]
This advantage comes from the ability to assess the demeanour of the witness, including observations of how the witness actually testified and especially how he or she responded to various parts of the cross-examination.
[48] When I consider the Defendant’s appearance and testimony during his cross-examination when he was lifting his sweatshirt and flapping himself with it, I find that his demeanor supports the view that he was caught being untruthful during this part of his testimony and he literally felt the heat of cross-examination. This is not significant in terms of assessing the reliability of the Defendant’s evidence, but it was noticeable. This, and the testimony itself, undermined the denials of wrong-doing and his far-fetched explanation for the cause of Mr. Pilgrim’s injuries.
[49] The prosecutor suggests that the Defendant tried to hold onto his unbelievable narrative despite the inconsistencies presented by his testimony. I agree with this characterization. As a result, as it concerns the material aspects of the allegations made by the complainant, I completely reject the Defendant’s testimony as untruthful. I find that the Defendant attempted to mislead the court by his untruthful testimony in order to avoid liability for the alleged offence.
[50] I have also assessed whether the evidence as a whole leaves me with a reasonable doubt about the allegation, nonetheless. I find that the evidence does not leave me with a reasonable doubt in any respects. The Defendant’s denials were somewhat basic and his evidence lacked plausibility as a whole. As a result, none of the evidence has left me in a state of reasonable doubt in respect of the cause of the complainant’s injuries.
[51] In the end, after a careful and reasoned analysis, I accept as true and accurate the testimony of the complainant that he was assaulted by the Defendant on 20 September 2021 and this caused him to have two significant injuries which required substantial medical treatment and observation over an extended period of time in order to heal.
[52] On the basis of my acceptance of the testimony of the complainant and my complete rejection of the Defendant’s evidence, I am satisfied beyond a reasonable doubt of the Defendant’s guilt in respect of the single count on the Information.
Conclusion
[53] For these reasons, Shane Springer is guilty of assaulting Ricardo Pilgrim and causing bodily harm.
Released: 14 December 2023 Justice G. Paul Renwick
[1] R. v. Starr, 2000 SCC 40, at para. 242.
[2] R. v. H.C., 2009 ONCA 56, at para. 41.
[3] The words of Justice Paciocco are worth noting: Still, it is useful to attempt to determine whether the problem is likely a credibility or reliability issue. This is because learning that a witness has intentionally lied about something is more likely to promote the rejection of their evidence as a whole, than a finding that the witness was mistaken in some of what they offered. “Doubt about Doubt,” supra, at p. 15.