ONTARIO COURT OF JUSTICE DATE: 2023 02 21 COURT FILE No.: 20-45004096 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Othniel SHIRLEY, Othniel a.k.a. Morris EL WAINWRIGHT BEY

Before Justice Cidalia C.G. Faria

Heard on June 1, 2, 3, 2022, August 24, 2022, September 26, 2022, December 13, 2022

Reasons for Judgment released on February 21, 2023

Scott Pearl............................................................................................ counsel for the Crown Othniel SHIRLEY, a.k.a. Morris EL WAINWRIGHT BEY................... on his own behalf

Faria J.:

I. Overview

[ 1 ] On June 5, 2020, Othniel Shirley, was charged with Assault Bodily Harm. He is alleged to have broken the wrist of Ji Min Li, a storekeeper, who tried to tell him he could not enter the supermarket without a mask. He prefers to be identified as Morris El Wainwright Bey, and so I will respect his preference.

[ 2 ] On the first day of trial, June 1, 2022, Othniel Shirley, a.k.a. Morris El Wainwright Bey decided not to plead, and was deemed to have pled “Not Guilty” pursuant to s.606 (2) of the Criminal Code.

[ 3 ] The Crown called four witnesses: the complainant, the nurse who treated the complainant, the arresting officer, and the officer who took photos of the scene. The Crown also filed three exhibits. A video surveillance clip showing the altercation, medical records of the complainant’s treatment in hospital, and photos of the supermarket and injuries sustained by the complainant.

[ 4 ] The Defendant, who represented himself, testified on his own behalf and filed photos of the supermarket. He also filed many documents, all of which were irrelevant to any issue at trial.

II. Position of the Parties

[ 5 ] Othniel Shirley a.k.a. Morris El Wainwright Bey raised two main issues. First, that he acted in self-defence, and second, that the prosecution had not obtained and disclosed all video surveillance from all the cameras in the supermarket where the altercation took place.

[ 6 ] Though, not articulated in legal terms, as may be expected from a self-represented litigant, the Defendant argues should the court find he acted in self-defence, he should be acquitted, and alternatively, if his s. 7 Charter right was violated, then the charge should be stayed pursuant to s. 24(2).

[ 7 ] The prosecution submits it has proven all the elements of the offence of assault bodily harm beyond a reasonable doubt. On the issue of self-defence, the prosecution submits Ji Min Li did not use force on the Defendant, the Defendant was not protecting himself and the force he used against a minimal touch was unreasonable. The Crown relies on the video evidence and submits he has met his onus and disproven self-defence.

[ 8 ] In response to the allegation of a s. 7 Charter breach, the prosecution submits the filed video surveillance captured the entirety of the altercation and there is no relevant video surveillance that was not seized, or lost, and the application should be summarily dismissed.

III. Evidence

[ 9 ] As Othniel Shirley, a.k.a. Morris El Wainwright Bey is self-represented, I will summarize the evidence.

A. Ji Min Li – Complainant

[ 10 ] Ji Min Li testified he was working in the Jian Hing Supermarket located in the Jane and Finch area in Toronto on June 5, 2020. He had been training as a bookkeeper. However, because of the COVID-19 pandemic, he was tasked to be at the entrance of the supermarket and ensure that the company pandemic policy that customers not enter without wearing a mask was followed pursuant to the government restrictions at the time.

[ 11 ] His job was to ask every shopper without a mask to either buy a mask or take one he offered for free. He would point to a sign that said “No mask No entry” posted on the glass window at the entrance of the supermarket.

[ 12 ] If a person stated they were exempt from the mask requirement due to a medical exemption pursuant to government policy, then he would “believe the people whoever say it.”

[ 13 ] On June 5, 2020, Mr. Li testified he was outside the entrance to the supermarket when a male attempted to enter the store without a mask. Mr. Li, who himself was wearing a mask and a clear face shield, said “Sir, Sir” and requested the male wear a mask and pointed to a box of masks. The male continued into the supermarket. Ji Min Li followed him, got in front of him and tried to block him from entering further by opening his arms by his sides.

[ 14 ] The male walked through his arm repeating “this is against the law” as Ji Min Li told him “Sir, I’m just doing my job”. After he walked past Ji Min Li, the male turned around and grabbed Ji Min Li’s right wrist. Ji Min Li put up his hands to his face, palms out. When he thought the altercation was over, he put down his hands and was then punched in the face, though he did not know how many times. He almost fell and his vision was blurry. He lost his face shield. His colleagues quickly came to help him.

[ 15 ] Ji Min Li testified he sustained a right wrist fracture, swelling on his forehead, and a swollen and bleeding nose. He went to the hospital for treatment and followed up with an eye specialist as he saw “black dots flying in front” of his eyes. He had a cast from the palm of his hand to past his wrist for six weeks. He then went to physiotherapy to gain back function in his right hand. He has become “cautious” and “vigilant” when he interacts with people because of the experience.

[ 16 ] The crown put a video clip of the altercation to Ji Min Li where he identified himself, the male who attacked him and the location of the altercation to be the supermarket where he had worked. During the playing of the video, he confirmed the video accurately depicted himself following the male into the supermarket, getting in front of the male, and extending both his arms to try to block the male’s entrance. He confirmed the video depicted the male grabbing his wrist, pushing him away, and punching him, as well as his own attempts to punch back and kick the male. Colleagues then come to his aide. He testified he is1.62 m (about 5”3) and weighed 124 lbs at the time.

[ 17 ] During cross-examination, Ji Min Li clarified he was standing outside of the entrance of the supermarket, to the right side of an entering customer, behind a table, dispensing masks, and not acting as a security guard.

[ 18 ] He first addressed Othniel Shirley, a.k.a. Morris El Wainwright Bey from behind the table: “I called you ‘sir’, you stopped, and also you looked at me”. He pointed to the “No Mask No Entry” sign, the male “looked at it” while Ji Min Li said “you should uh, have your mask on” and pointed to the box of masks. The male “paused, then he turned his head and walked in. So, then I followed him, and I was waling ahead of him. That’s when things happened.” There was also a picture with a person with a mask on beside a person without a mask on, which is crossed out, by the entrance door. The rules were posted in pictures and in text.

[ 19 ] When asked what language he spoke, he said English, as he uses English in “everyday life” and does not need an interpreter for his employment. He was not wearing a uniform or a name tag.

[ 20 ] When it was suggested to Ji Min Li, that it was he who attacked Othniel Shirley, a.k.a. Morris El Wainwright Bey by touching his bicep, he responded “I grab you because your uh, movement was so big that I could only try to prevent it. I did not grab you.” When asked about kicking, he responded “You can see at this moment, uh, my face mask was already uh, knocked from the fight. It was because of the strike from the other party” and “I was just trying to protect myself.”

[ 21 ] Ji Min Li did not know how many cameras were in the supermarket, had not seen the video clip of the altercation before, did not record the video, did not edit the video, did not seize the video, and did not provide the video to police. Photos were put to him showing cameras outside the supermarket. Ji Min Li testified he had never noticed them. Photos of cameras inside the supermarket were put to him, he testified he did not know whether they were there at the time.

B. Erika Soroka – Nurse

[ 22 ] Erika Soroka was a Registered Nurse at Humber River Hospital in the Emergency Department on June 5, 2020. She treated Ji Min Li when he was brought in by Emergency Medical Services (EMS). She explained the Meditech Documentation system that creates medical reports at the hospital. These include both objective assessments, what medical professionals observe, and subjective assessments, what patient say. Mr. Li was diagnosed with a right wrist fracture by the treating physician Dr. Calvin Lian.

[ 23 ] Ms. Soroka personally observed redness/bruise on the bridge of Ji Min Li’s nose, and the right eyebrow area. She saw his arm in a sling, with normal colour and sensation. She observed his right wrist was slightly swollen. He was able to move his fingers, but his right wrist was limited secondary to pain with movement. She recommended Rest, Ice, Compression, and Elevation (RICE). Ji Min Li was discharged with an appointment to attend the fracture clinic two days later.

[ 24 ] In cross-examination, Ms. Soroka testified she was not qualified to assess the age of the fracture and would not be able to identify when it happened. She did note that Ji Min Li reported no visual changes, no blurry vision and no double vision. She could not recall if she needed the assistance of an interpreter when she treated Ji Min Li and did not note one was used. She testified if she did not understand the patient in the English language she would have used an interpreter.

C. Christopher Frazier – Arresting Officer

[ 25 ] Constable Frazier received a radio call at 12:26 p.m. on June 5, 2020, for trouble at a supermarket at 1989 Finch Avenue West. His information was that a customer had stolen a product and assaulted a worker. He arrived on scene with his partner, Police Constable Duke at 12:28 p.m. and observed the Defendant being held by several people who said, “this is him, this is him” while the male struggled to get away. He assumed the people holding the male were employees, but they could have been civilians.

[ 26 ] Based on the information received that a male had assaulted an employee, a male was being held by supermarket employees, and the employees told him “This is him”, PC Frazier and his partner took control of the Defendant and effected his arrest for assault at 12:29 p.m. The male resisted and was taken to the ground to be handcuffed. He was told why he was arrested by PC Frazier and his Rights to Counsel by PC Duke.

[ 27 ] When searched incident to arrest, PC Frazier found “Moorish identification cards” with the name “Morris Wainwright Bey”, and a bank card with the name “Othniel Shirley”. A search of the name Morris Wainwright Bey was negative. A search of the name of the bank card resulted in obtaining a photo that matched the male they had arrested.

[ 28 ] PC Frazier identified the Defendant as the person he arrested.

[ 29 ] The Defendant was taken to 31Division. He requested to go to the hospital and was taken there at 1:46 p.m. PC Frazier observed no injuries, and the defendant was medically cleared. He was returned to 31Division at 4:02 p.m. He made two unsuccessful phone calls to counsel. He was offered Duty Counsel but refused this assistance as he asserted calling Duty Counsel would “infringe” on his rights.

[ 30 ] In cross-examination, PC Frazier testified he was made aware at the scene that there was relevant video surveillance. He did not see it, but other officers on scene viewed it. He did not ask how many cameras were in the store.

D. Kerry Webb, Scene of Crime Officer (SOCO)

[ 31 ] PC Webb testified he received a call to attend 1989 Finch Ave. West at 12:32 p.m. He attended at 12:37 p.m. and took photos of supermarket entrance, the aisle of the supermarket, and several photos of Ji Min Li’s injuries. He also took photos of the sliding entrance doors to the supermarket with two posted signs that state “No Mask, No Entry” as well as a sign that indicated 3 m. of social distance required, and limits on the number of shoppers in the store at one time.

E. Othniel Shirley, a.k.a. Morris El Wainwright Bey

[ 32 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey testified on his own behalf. First, he testified he “corrected” his “identification” and “nationality” in 2016 and became Morris El Wainwright Bey, a “Moorish American”.

[ 33 ] He testified that on June 5, 2020, when he entered the supermarket, he did not see a sign and he was not told of any COVID-19 procedures. He testified there was no obstruction to his entrance, and he did not see Ji Min Li or an interpreter.

[ 34 ] He testified “someone came at him out of nowhere” while he was wearing headphones and he backed away. He testified the person, Ji Min, Li, was not wearing a name tag or a uniform indicating he worked at the supermarket. He testified he did not hear Ji Min Li who got into his “private space.”

[ 35 ] He testified Ji Min Li touched his right hand, so he flung the hand away. He grabbed Ji Min Li’s neck and pushed him away because Ji Min Li assaulted him. He testified he was scared for his life and Ji Min Li attacked him, so he punched Ji Min Li to stop the attack which must have caused Ji Min Li’s nose to bleed.

[ 36 ] He also testified he has a medical condition that prevents him from wearing a mask and he quoted what he believed to be City of Toronto Bylaws about such exemptions and the fact that he is “Indigenous” exempting him from mask requirements during pandemic restrictions.

[ 37 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey testified that after he punched Ji Min Li, people then came and held him, assaulted him, and he did not struggle or fight them. He “yielded” himself to them. He testified he did not struggle or resist police when they arrived. He testified police went through his bag and wallet and located his “Iroquois” identification and “Indigenous identity”. He explained he was born in Jamaica and came to Canada. Since 2016, he had “corrected” his identity, but the police found his Othniel Shirley card and did not identify him as Morris El Wainwright Bey.

[ 38 ] He testified he did not steal anything and did not get a chance to touch any products at the entry of the supermarket and was only trying to protect himself.

[ 39 ] In cross-examination, Othniel Shirley, a.k.a. Morris El Wainwright Bey testified Ji Min Li had not touched him prior to his entrance into the supermarket and the start of the video surveillance clip. He testified Ji Min Li was close to him and frightened him. He agreed Ji Min Li was “obstructing” him from entering the store, but he did not understand what Ji Min Li was saying because he was not “speaking English to me”.

[ 40 ] He testified he pushed Ji Min Li into the fruit bin to “get away” and that he punched Ji Min Li “to get away”. He testified he did not grab Ji Min Li’s wrist “hard”.

[ 41 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey’s requested the material he filed for an Adjournment Application that was denied prior to the start of the trial be considered by the court. The material was filed as Exhibit 3 at trial. These materials referred to foreign Treaties, Constitutions, and legislation as well as documentation of the “correction” of his name to be Morris El Wainwright Bey, an Iroquois Moorish American National.

IV. Legal Principles

Onus / Presumption / Standard of Proof

[ 42 ] As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense. It is logically connected to the evidence or the lack of evidence. 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: R. v. Lifchus, 1997 SCC 319.

Elements of the Offence

[ 43 ] The prosecution must prove beyond a reasonable doubt the location of the offence to be in Toronto, the date of the offence to be June 5, 2020, and the identity of the person who committed the offence to be Othniel Shirley a.k.a. Morris El Wainwright Bey.

[ 44 ] The prosecution must also prove beyond a reasonable doubt that:

• Othniel Shirley a.k.a. Morris El Wainwright Bey applied force to Ji Min Li.
• He intentionally applied that force.
• Ji Min Li did not consent to the force being applied.
• Othniel Shirley a.k.a. Morris El Wainwright Bey knew Ji Min Li did not consent to the force being applied.
• The force caused bodily harm.

[ 45 ] Bodily harm is any hurt or injury that interferes with a person’s health, comfort, or psychological wellbeing. The harm must be more than brief, fleeting or minor in nature. It must result from the physical contact that Othniel Shirley a.k.a. Morris El Wainwright Bey made with Ji Min Li.

Credibility and Reliability

[ 46 ] 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: R. v. Morrissey, 1995 ONCA 3498, R. v. H.C., 2009 ONCA 56 at ¶ 41. As a result, there is a distinction between a finding of credibility and proof beyond a reasonable doubt: R v. J.J.R.D., 2006 ONCA 40088 at ¶47; R v. J.W., [2014] O.J. No. 1979 (C.A.) at ¶26.

[ 47 ] The applicable guiding principles were articulated by the Supreme Court of Canada in R. v. S. (W.D.), 1994 SCC 76:

1. First, if I accept the evidence of the Othniel Shirley a.k.a. Morris El Wainwright Bey, which is inconsistent with guilt, I must acquit.
2. Second, even if I do not accept the evidence of Othniel Shirley a.k.a. Morris L. Wainwright Bey, but if it leaves me with a reasonable doubt, I must acquit.
3. Third, even if I do not accept the evidence of Othniel Shirley a.k.a. Morris L. Wainwright Bey, and it does not raise a reasonable doubt, on the totality of the evidence I do accept, if I have a reasonable doubt, I must acquit.

Self-Defence

[ 48 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey raised the issue of self-defence. I therefore turn to s. 34 of the Criminal Code:

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

[ 49 ] 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.

[ 50 ] The onus is on the Crown to disprove self-defence beyond a reasonable doubt: R. v. Khill, 2021 SCC 37 and R. v. Avril, 2015 ONSC 2158 at ¶10.

Section 7, Lost Evidence

[ 51 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey claims that there was surveillance video not disclosed to him. I am guided by the Supreme Court of Canada in R. v. La, 1997 SCC 309 on this issue.

Step 1: Where the Crown’s explanation satisfies the trial judge the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. (at para. 20). The onus is on the Crown.

Step 2: Has an abuse of process been established? The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown’s obligation to disclose, will, typically, fall into this category. In some cases, an unacceptable degree of negligent conduct may suffice. However, it is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose. (at paras. 20, 22) The onus is on the defence.

Step 3: Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on their s. 7 right to make full answer and defence. In extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. (at para 24) This onus is on the defence.

[ 52 ] To determine if the Crown’s explanation is satisfactory for Step 1, the Court explained:

The main consideration is where the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclosure if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. (at para. 21)

[ 53 ] If the Crown has satisfied Step 1, the Court stated regarding Step 3:

… where the Crown has met its disclosure obligations, in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence. (at para. 25)

[ 54 ] Should a s. 7 violation be found, the three criteria to determine if a stay of proceedings is warranted is outlined in R. v. O’Connor, 1995 SCC 51 at para 75:

i. The prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome. ii. No other remedy is reasonably capable of removing the prejudice; and iii. It will be appropriate to balance the interest that would be served by the granting of a stay of proceedings against the interest that society has in having the final decision on the merits.

[ 55 ] A stay of proceedings should only be ordered in the “clearest of cases” because it is the “most drastic remedy a criminal court can order. It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated, and the public is deprived of the opportunity to see justice done on the merits”: R. v. Piccirilli, 2014 SCC 16 at para 30.

V. Findings of Fact and Analysis

Elements of the Offence

[ 56 ] Jurisdiction and date are not at issue as Othniel Shirley, a.k.a. Morris El Wainwright Bey acknowledged the altercation occurred at the Jian Hing Supermarket in Toronto on June 5, 2020.

[ 57 ] Identity is also not at issue vis-à-vis who is before the court and who was involved in the allegation before the court. The person before the court identified himself on Exhibit 2 as the other person Ji Min Li was physically involved with. He also filed a document he called a “Declaration of Nationality” “correcting” his name “Othniel Wainwright Shirley” born on August 9, 1971, in Jamaica, to become “Morris El Wainwright Bey”. To be clear, the Defendant is not an Indigenous person, though he refers to him as such. This name “correction”, and belief in his Indigeneity is of no relevance in this case.

[ 58 ] In this case, the video of the altercation, as stated in R. v. Browne, 2017 ONSC 5054 at paragraph 16 “is real evidence and is a silent, constant, unbiased witness with instant and total recall of all that it observed.”

[ 59 ] The video, supported by Ji Min Li’s testimony proves:

• Othniel Shirley, a.k.a. Morris El Wainwright Bey applied force to Ji Min Li by grabbing his wrist, pushing him away, and punching him in the face several times.
• He did so intentionally.
• Ji Min Li did not consent to Othniel Shirley, a.k.a. Morris El Wainwright Bey grabbing his wrist, pushing him away and punching him in the face several times.
• Othniel Shirley, a.k.a. Morris El Wainwright Bey knew that Ji Min Li did not consent to having this force applied to him.

[ 60 ] The medical records and Ji Min Li’s testimony are undisputed on the issue of injury. He sustained a fractured wrist. The cast was on for six weeks and he required physiotherapy thereafter. This was an injury that meets the definition of bodily harm.

[ 61 ] I therefore find that the prosecution has proven all the elements of the offence beyond a reasonable doubt and find that Othniel Shirley, a.k.a. Morris El Wainwright Bey assaulted Ji Min Li and caused him bodily harm.

Self Defence

[ 62 ] I now turn to the issue of self-defence.

[ 63 ] Ji Min Li’s testimony was simple, consistent, and straightforward. He was doing his job ensuring everyone who entered the supermarket was wearing a mask during the pandemic in Toronto in June 2020. He would offer customers who did not have a mask, a free one from a box, or they could buy one. He pointed to the signage that depicted the policy in both pictures and text. That is what he did with Othniel Shirley, a.k.a. Morris El Wainwright Bey who was not wearing a mask. His testimony is unchallenged, and I accept this evidence.

[ 64 ] When spoken to, Othniel Shirley, a.k.a. Morris El Wainwright Bey stopped, looked at the sign and kept walking into the supermarket. When Ji Min Li got in front of him to block his way with his arms out by his sides, Othniel Shirley, a.k.a. Morris El Wainwright Bey pushed past him by pushing by Ji Min Li’s right arm. When Ji Min Li’s hand touched Othniel Shirley, a.k.a. Morris El Wainwright Bey’s right bicep, Othniel Shirley, a.k.a. Morris El Wainwright Bey turned around, and grabbed Ji Min Li’s wrist hard enough to break it.

[ 65 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey then pushed Ji Min Li onto a bin of fruit, put his hands on his throat and punched him in the face dislodging his clear protective face shield.

[ 66 ] Though Othniel Shirley, a.k.a. Morris El Wainwright Bey backed away from Ji Min Li for a moment, he then moved forward and punched Ji Min Li in the face again until 3 young men came and pulled him away from Ji Min Li.

[ 67 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey struggled with these three men, and a fourth one came to assist the three to contain Othniel Shirley, a.k.a. Morris El Wainwright Bey.

[ 68 ] The entirety of the altercation is captured on the video surveillance, and both Ji Min Li and Othniel Shirley, a.k.a. Morris El Wainwright Bey testify to that.

[ 69 ] Ji Min Li’s testimony is supported by the video of the altercation. His only inconsistency was that he testified the assault led to blurred vision, but the medical records state he made no such claim at the time. This is peripheral. Where his evidence differs from the video evidence, I accept the video evidence.

[ 70 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey’s testified he did not hear Ji Min Li speak to him as he had headphones on. I do not accept his evidence. It is inconsistent with his testimony that Ji Min Li did not speak to him in the English language. I do not accept that either, as Ji Min Li testified in the English language several times about what he said to the male in the supermarket and had to be reminded to speak in Mandarin for consistent interpretation.

[ 71 ] The photo exhibits depict very clear public notices posted on the glass window that Othniel Shirley, a.k.a. Morris El Wainwright Bey walked by to enter the supermarket. I do not accept that he did not see the notices, did not know about the requirement, or hear Ji Min Li tell him he had to be masked to enter.

[ 72 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey testified Ji Min Li got into his “private space”. It can be seen on the video that it is him who walks into Ji Min Li and past him, entering Ji Min Li’s ‘private space”. He testified he was scared for his life, yet all Ji Min Li did, was have his hand on Othniel Shirley, a.k.a. Morris El Wainwright Bey’s bicep. The video shows Othniel Shirley, a.k.a. Morris El Wainwright Bey’s response was not one of fear, but of immediate aggression.

[ 73 ] He is seen on the video following his assault on Ji Min Li’s wrist with a push, a grab to the throat and punches to the face. He is then seen moving toward Ji Min Li again and swinging at him with more punches to the face. Even as this is clear on the video, Othniel Shirley, a.k.a. Morris El Wainwright Bey testified he was not moving forward, and he was defending himself.

[ 74 ] I find Othniel Shirley, a.k.a. Morris El Wainwright Bey not credible or reliable. I do not accept his evidence and it does not raise a reasonable doubt. Where his evidence differs from the video evidence, I accept the video evidence.

[ 75 ] A word on the size of the two men. Ji Min Li is 5”3 and weighed 124 lbs. On the video, he is a slender, short, older, diminutive man. Othniel Shirley, a.k.a. Morris El Wainwright Bey was 48 at the time, slightly taller, but significantly heavier, with a stocky and wide shoulder build.

[ 76 ] Considering all the applicable factors, namely:

• nature of the force Othniel Shirley, a.k.a. Morris El Wainwright Bey testifies he is responding to, is a hand on his bicep by an older, slimmer, man trying to block him from entering a supermarket.
• the video shows there was room to step away.
• His role was that of the one who initiated contact and insisted on entering the premises without adhering to the conditions by which was permitted to enter.
• He was younger, heavier, stockier, and stronger than Ji Min Li.
• His response was violent, persistent and repeated.
• His reaction to wrench, push, grab and punch was out of proportion to a touch on the bicep:
• There was no use or threat of force by Ji Min Li.

[ 77 ] As testified to by Ji Min Li, and seen on the video, I find: (i) It is Othniel Shirley, a.k.a. Morris El Wainwright Bey who first makes physical contact with Ji Min Li when he walked by him, pushing his right arm aside to get into the supermarket. Ji Min Li did not apply “force” and there was no “force being used” against him pursuant to s. 34 (a) of the Criminal Code. (ii) Othniel Shirley, a.k.a. Morris El Wainwright Bey’s wrenching of the Ji Min Li’s wrist, then his pushing, putting his hands on Ji Min Li’s throat and then punching him was not an act of self-defence from the minimal contact of Ji Min Li’s hand on his bicep per s. 34 (b) of the Criminal Code. (iii) There was nothing reasonable about the manner with which Othniel Shirley, a.k.a. Morris El Wainwright Bey wrenched Ji Min Li’s wrist, pushed him, grabbed at his throat and punched him in the face numerous times pursuant to s. 34 (c) of the Criminal Code.

[ 78 ] On the evidence I do accept, I have no reasonable doubt, and on the issue of self- defence, I find the prosecution has disproved it beyond a reasonable doubt.

Alleged Charter Violation, s. 7, Lost Evidence

[ 79 ] I now turn to the allegation of a Charter violation.

[ 80 ] The court provided Othniel Shirley, a.k.a. Morris El Wainwright Bey with considerable leeway by way of accepting his argument that the Crown did not disclose all camera footage in the supermarket, as a Charter argument, without proper materials and proper Notice to the Crown.

[ 81 ] Othniel Shirley, a.k.a. Morris El Wainwright Bey filed photos of cameras outside and inside the supermarket. He argued that this footage should have been obtained and provided to him.

[ 82 ] Ji Min Li testified he was not aware of any cameras in the plaza outside the supermarket and that no physical contact occurred outside the supermarket. Othniel Shirley, a.k.a. Morris El Wainwright Bey testified to the same.

[ 83 ] Therefore, even if there were cameras in the plaza outside the supermarket on June 5, 2020, and even if they were operational, the evidence is that they would not have captured the altercation. On the evidence then, there is no relevant “lost” or “unseized” evidence of these cameras.

[ 84 ] Regarding camera footage from cameras inside the supermarket, there is no clear evidence they were in place at the time of the allegations, that they were operational or that they captured the altercation. Both Ji Min Li and Othniel Shirley, a.k.a. Morris El Wainwright Bey testified that the video clip of the altercation filed as an exhibit captured the entirety of the altercation.

[ 85 ] Therefore, there is no evidence that even if they were installed on June 5, 2020, and they were operational, they would have captured anything different that the video surveillance that was seized, disclosed and filed as an exhibit that captured the entirety of the event.

[ 86 ] Othniel Shirley, a.k.a. Morris El Wainwright Be, even as a self-represented litigant, carries the onus on an allegation of a Charter breach.

[ 87 ] Addressing Step 1 of the La inquiry, the Crown took reasonable steps in the circumstances to preserve the relevant evidence and seize it. The police cannot be expected to seize the footage of every camera, when the footage they do seize captures the entirety of the event they are investigating. Their conduct was reasonable in the circumstances.

[ 88 ] On the evidence, there was no evidence lost or destroyed. There was no unacceptable negligence. There was no duty to get more footage than what was relevant and captured the entirety of the event in question.

[ 89 ] The analysis does not get past Step 1 of the La inquiry.

[ 90 ] Regarding Step 2, there is no evidence of an abuse of process. There is no evidence of a deliberate destruction of any surveillance of any kind, and no evidence of any negligent conduct.

[ 91 ] Finally, I turn to Step 3, wherein I must consider that even where the Crown has discharged its duty by disclosing the relevant footage, Othniel Shirley, a.k.a. Morris El Wainwright Bey can rely on his s.7 right to make full answer and defence. Although he alleges it had been “edited”, he agrees that the video surveillance provided captures the entirety of the altercation. He took no issue with anything missing or not properly recorded. He took no issue with the quality of the video, its duration, its angle or made any submission that it did not accurately depict what occurred. He just insisted he wanted the footage of all the other cameras. He showed no prejudice to not having this footage and so fails on this inquiry as well.

[ 92 ] I therefore find no breach of s. 7 and dismiss the oral Charter application.

VI. Conclusion

[ 93 ] After reviewing all the evidence, I find Othniel Shirley, a.k.a. Morris El Wainwright Bey assaulted Ji Min Lin on June 5, 2020, in the city of Toronto and fractured his wrist. I him guilty of assault bodily harm.

[ 94 ] There is one more comment I must make on the conduct of this trial. Although the evidence was quite straightforward and uncomplicated, these proceedings took five days because of Othniel Shirley, a.k.a. Morris El Wainwright Bey’s comportment.

[ 95 ] Although at times he focused, listened to my instructions, and appropriately participated in his trial, there was significant time expended on his recurring challenges to the court’s jurisdiction, his frequent interruptions, his insistent demands justice participants declare their “nationality” and his repeated need to articulate his “identity”. He brought “supporters” to court, some of whom stood by his side in the middle of the courtroom where he preferred to stand, with their arms crossed, and one whose persistent disruption led to his removal. At times, no number of explanations or accommodations of his eccentric desires persuaded him to participate in an orderly fashion.

[ 96 ] Nevertheless, the Crown, all the witnesses, the court staff and all participants conducted themselves with patience, professionalism, and courtesy.

Released: February 21, 2023 Signed: Justice Cidalia C.G. Faria