R. v. Carrie, 2024 ONCJ 414

ONTARIO COURT OF JUSTICE

DATE: 2024 01 02 COURT FILE No.: Sault Ste. Marie 23-133300056

BETWEEN:

HIS MAJESTY THE KING

— AND —

DAVID CARRIE

Before: Justice Romuald Kwolek Heard on: November 22, 23, 2023 Reasons for Judgment released on: January 2, 2024

Counsel: T. Wilson, for the Crown K. Sajid, for the accused

KWOLEK J.:

[1] The accused is charged that he did:

1. on or about November 11, 2021 confine Gerald Daniel Chretien contrary to section 279(2) of the Criminal Code;
2. on the same date did assault the same complainant using a weapon, namely a wrench contrary to section 267(a) of the Criminal Code;
3. on the same date did cause bodily harm to the said Gerald Daniel Chretien contrary to section 267(b) of the Criminal Code.

Agreed Statement of Facts

[2] A call came into 9-1-1 on November 11, 2021 from an anonymous male about a possible woman overdosing on the front lawn at 151 Wellington St. East. The 9-1-1 operator advised ambulance personnel to attend the scene. When paramedics arrived, they found the complainant Gerald Chretien lying on the front lawn complaining of having severe neck pain and the paramedics transported the complainant to Sault Area Hospital (SAH).

[3] The complainant underwent several procedures to treat his neck injury at both SAH and Sudbury Health Sciences North (SHSN). As a result of those injuries Mr. Chretien is now a paraplegic.

[4] Officers attended on January 6, 2022 to interview the complainant and attended on January 21, 2022 to photograph the outside of the residence at 151 Wellington Street East. The photographs and the medical records formed part of the agreed statement of facts.

Legal Issues

1. The reliability and credibility of the version of events as testified to by the complainant.
2. Has the Crown proven the elements of the offences beyond a reasonable doubt?
3. To what extent can the courts rely upon statements found in the medical reports and in other written documentation to refute/confirm the testimony of the complainant or raise a reasonable doubt about the guilt of the accused.
4. If the evidence of the complainant is accepted, has the offence of unlawful confinement been proven by the Crown?
5. If the court accepts the evidence that the complainant escaped through the window to avoid an assault by the accused, are the injuries arising out of the fall out of the window, sufficiently connected to the offence to result in a conviction for assault causing bodily harm?

Other Evidence

[5] The complainant, the investigating police officer and the two paramedics were called as witnesses for the Crown. Photographs were taken of the outside of the premises on January 21, 2022, over two months after the incident, and about 1000 pages of medical reports from Sault Area Hospital (SAH) and Sudbury Health Sciences North (SHSN) were introduced as evidence and filed on a DVD and included as an exhibit together with the agreed statement of facts as described earlier.

[6] The accused did not testify.

Testimony of Constable Steven Potter

[7] This officer was referred by another officer to investigate an alleged assault that had taken place about two months prior. He attended at the hospital to interview Gerald Chretien who had no use of his legs and limited use of his arms.

[8] The officer listened to the 9-1-1 audio call. The 9-1-1 operator called for an ambulance as the initial report indicated a possible overdose. The police were not dispatched to the scene that day by the 9-1-1 operator nor did any officer attend at the scene that evening, nor did the paramedics request police attendance or report to the police that any crime had been committed. The investigating officer never followed up with the caller who did not leave a name but left a telephone number. The officer never called the number left by the caller and the 9-1-1 call is no longer available nor is the phone number available that was provided in the call.

[9] In his statement provided to the police on January 6, 2022, the complainant identified the perpetrator of the offences as the accused David Carrie. In addition, he identified another individual, Debbie Laroue as an individual who attended with him at the residence earlier that evening. Even though the last known address of Ms. Laroue was listed as being 151 Wellington Street East, the same address where the incident occurred, the police were not able to locate Ms. Laroue at that address, nor at any other address up to and including trial. Significant efforts were made by the police to locate Ms. Laroue.

[10] On January 21, 2022 the officer attended at 151 Wellington Street East, took photos of the outside of the residence and spoke to David Carrie, a resident of that address, and advised him they were looking for Diane Laroue. The officer did not arrest David Carrie at the time, nor did he question him about the incident nor request a statement from him even though he was the only suspect named by the complainant. Given the passage of time, no search warrant was requested to search the inside of the residence where the alleged altercation had occurred.

[11] The window on the second floor through which the complainant advised he exited from, appeared, on January 21, 2022, to have a broken windowpane. Only the exterior pane appeared to be broken with the interior pane appearing to be intact. The officer did not measure the size of the window nor enter the home at any time to view the room nor the window that the complainant reportedly exited from.

Testimony of Joseph Hocevar – Paramedic

[12] The paramedic testified that they were dispatched to 151 Wellington Street East as a result of a possible overdose. When they arrived at the scene, they found a man on his back with a jacket rolled under his head. No one else was present at the scene and the paramedics did not speak to any occupants of the building. The paramedics did not call the police to attend the scene.

[13] The complainant was fully conscious when the paramedics arrived and answered all of the questions of the paramedic although he was described as being a poor historian. The complainant provided information as to his name and his age. He confirmed that he had no fixed address.

[14] There was damage on the roof and, the eavestrough or metal trim, was hanging down, consistent with someone falling off the roof. The complainant did not name anyone who was responsible for or involved in his fall although he did advise he was chased. There was no glass or shards of glass around him, no cuts to his skin and the witness did not recall any bruising or bleeding to the face of the complainant. There were no outward signs of trauma. There was no metal pipe or wrench in the area. There was no physical proof of drug use in the area. There was no physical indication of any assault. The paramedic testified that had he determined that an assault had occurred, he would have called the police. The paramedic did not contact the police.

[15] This witness testified that the findings at the scene aligned with a fall as he observed what he described as a piece of trim metal or an eavestrough hanging down from the roof over the porch and a broken railing. This witness indicated in his report that he had received information from the complainant that the complainant had been smoking meth that night with a friend.

Testimony of Steven Anderson – Paramedic

[16] This witness was the second paramedic who arrived on the scene. He arrived with Hocevar and noted the complainant on the front lawn. This witness would have been driving the ambulance while the other paramedic would have been with the patient in the back of the ambulance. Hocevar would have been the person who primarily spoke with the patient. The ambulance call report would have been signed off by both paramedics.

[17] This witness noted a piece of siding or fascia peeled off or hanging off the lower roof area with damage to a wooden railing. There were no obvious signs of any meth use. The complainant was conscious and was able to speak and move his head but could not move his legs.

[18] This witness testified that he recalled the window on the third floor of 151 Wellington St. East appeared either open or broken. There was no wrench or weapon found on the grass. The paramedic did not note any cuts to the skin or bruising on the complainant's face nor any bleeding that he could recall.

[19] There were no obvious signs that the complainant was intoxicated although the complainant appeared to be confused about the details of the incident and appeared to be a poor historian. The witness could not say if the patient's confusion was caused by the consumption of drugs or due to an injury or a combination of the two. The attendant would normally call the police if he believed that a criminal offence had been committed and the police were not contacted by him.

Testimony of Complainant Gerald Chretien

[20] The complainant testified from a wheelchair. As a result of the incident that occurred on November 11, 2021 he was a paraplegic with limited movement of his arms and his lower extremities were paralyzed.

[21] Gerald Chretien testified that he attended at the home located at 151 Wellington Street East with Debbie Laroue whom he had met outside a men's shelter. Initially, he testified that Debbie Laroue, who had previously lived at that address, knew he was going to get his clothes and agreed "to go for a walk" with him. He testified that he had gone previously to 151 Wellington Street East to visit the accused's brother Ralph Carrie. The complainant knew Ralph because he had done a job for Ralph's mother, who as a condition of hiring him to do the work, required him to hire Ralph for the job. He testified that he knew the accused David Carrie for about a dozen years.

[22] The complainant testified that he was supposed to do the roof on the house at 151 Wellington Street East and he had clothes there because "I was there getting ready to do this roof." He testified that the owners decided to postpone repairing the roof until the following year. Later he testified that he had clothes there because "some of the clothes you didn't want to walk back home with." He admitted to sleeping over at the house a few times. He also indicated that he had a few small tools at the residence as well. He testified that he had his clothes and tools in a little cabinet in the room where the alleged assault occurred. He had "hidden" these items at that residence so they would not be stolen. He described the property as a rooming house and one where everyone stole items from each other.

[23] The complainant did not appear to have a permanent residence at the time. He admitted that he would sometimes stay the night at that residence. There was no arrangement that he could live there in return for doing repairs on the building. He would sometimes stay at the Wellington Street address if he was doing work there.

[24] The complainant testified in chief that when he came to the door the accused told him that the complainant owed the accused "over $1000 bucks anyway" for a bike that he allegedly stole from him and demanded money from him.

[25] The complainant testified that this conversation occurred in the hallway going towards the upstairs. He testified that he would have exited by the front door but that door was screwed shut. When the complainant went upstairs the accused followed him, raised his voice, asked for money for a second time and slapped him on the right side of his face with his right hand. It had to be his right hand because "I was walking ahead of him, so it had to be." Later he testified that he was slapped or punched and "was black and blue apparently." He indicated that he started screaming when he "slapped me or punched me or whatever ... I can't remember."

[26] The complainant indicated that he fell in the corner then testified, Mr. Carrie, "shut the door. I couldn't go out that way. It's the only way to get out of the room was by the door and he was standing in front of it."

[27] The complainant later testified that he could not remember if the accused had shut the door to the room that he was in or not but indicated he had no choice but to go through the window because the accused was in front of the door.

[28] The complainant testified that when he fell, he was half on the bed and half on the ground "he almost knocked me out." He testified that the accused turned around reached in the corner and had this bar in his hand.

[29] The complainant testified that he then jumped up on the bed and the accused picked up a "spud wrench" that he described as a 2 ½ to 3 foot long pipe with a bar - spud on one end, and an open wrench on the other, used by ironworkers, and swung the bar upwards trying to hit him in the head. He "ducked sideways" and the accused missed him and hit the glass behind him breaking the windowpane. The window swung open at the bottom and the complainant climbed out the window on the roof over the porch to get away from the accused as he could not get out the door because the accused was standing in front of the door with the wrench.

[30] The complainant testified that once he got out the window, he "looked for a set of stairs to get down off that roof and there were no stairs." He then indicated that he scaled himself to the edge, hung on the edge and tried to scale off the roof by using the eaves trough which let go from the house. The complainant indicated that the accused was on the roof: "he wanted my money, obviously he wanted a piece of me."

[31] The witness testified that the accused came out behind him out the window. The witness, as he fell from the roof, grabbed the eaves trough, which let go from the roof with his feet were hanging over the edge, and his feet hit the railing of the steps and broke the railing and he fell on his head.

[32] When asked for a second time in chief whether the accused came out of the window the complainant answered "I would imagine yes, he was following me so if he was all out of the house, I'm not sure, I can't remember. I know he was partially out. At least half the body...you don't go out feet first ... so up to his waist at least.. he wouldn't have fit out that hole."

[33] The complainant testified that the accused tried to pick him up two times after he had fallen and tried to bring him back into the house, but the complainant told him no because he was hurting him stating, "you're going to kill me" because all he felt was his neck.

[34] The complainant indicated that he was not on the third floor of the rooming house but was on the second floor.

[35] The witness confirmed that he had commenced a lawsuit "a little over a year ago." He had spoken to the lawyers about his case and approved the claim. The lawsuit claimed $10,000,000 in damages. The claim stated that the complainant was confronted by an irate tenant who chased him up the stairs and attempted to strike him with a crowbar and the complainant lost his balance and fell out of the second story window. He testified that he read the claim. He refused to answer any further questions about the claim.

[36] In cross-examination, the complainant admitted that he has had extensive experience with the criminal justice system but insisted that that such involvement was dated and occurred over 30 years ago and insisted no criminal involvement since 30 years ago. He then conceded his criminal convictions that had occurred more recently.

[37] The complainant's criminal record was made an exhibit. In actual fact, the offender had been convicted less than a month prior to the incident, on October 19, 2021 with using a forged document; on December 30, 2010, with three counts of fraud under $5000 as well as failure to comply with a recognizance and failure to attend court. In February of 2008 he was convicted of assault causing bodily harm and breach of probation and failure to appear in court. The complainant had numerous convictions between 1994 and 2000, less than 30 years prior to his testimony in court, including crimes of dishonesty as well in December of 1997. The complainant had a total of five convictions for impaired driving and five other narcotics related convictions. The complainant had at least 12 previous convictions for violence and on 9 different dates was convicted of property crimes or crimes of dishonesty.

[38] The complainant testified when asked if he recalled speaking to the police his answer was:" when the alleged complaint was made it was made by me and what date it was, don't ask me because I can't remember what I did last week .. so I can't really pinpoint exactly the time that you need to search for me."

[39] The complainant was asked if he had "lived at the residence where the incident occurred for some time..." and he answered that he was not living there for some time.

[40] He clarified that he did "stay there on and off while he was doing work there he was too dirty to walk home."

[41] He indicated that the owner of the residence had cancelled doing roof repairs for that year and "he went there to pick up "some of the tools that he had left there, because I take care of my tools and I don't want to lose them."

[42] The complainant testified that he was going to the residence to visit with Ralph Carrie but Ralph wasn't there.

[43] When asked about how much Mr. Carrie was demanding from him, he testified that it was $1000 but when cross-examined about his statement to the police that indicated it was $3000, his response was "it's fluctuating. It could be. I know it's up there anyway. The exact amount I can't remember what he was saying."

[44] The complainant testified that the discussion about funds owing by him to the accused Mr. Carrie: "started at the door and all the way to the stairs to the slap, to the thing, then crawled out the window for me to get away from him, and from him for my own safety."

[45] The complainant did not recall speaking to the paramedics but remembered getting into the ambulance on the stretcher. He did not recall saying anything to the hospital staff or doctors that evening about what happened. He did not recall anything until he came to in Sudbury days later.

Analysis

General Analysis

[46] The court is mindful of the fact that it is the Crown's obligation to prove its case beyond a reasonable doubt. A much higher standard than is set out in civil courts where the standard of proof is only on a balance of probabilities.

Issue – The Use and Admissibility of Medical Records

[47] Medical records produced in this case are clearly relevant for the purpose of providing information as to the observations of physical injuries and the medical condition of the complainant.

[48] There are concerns, with the introduction of a history in medical reports, as opposed to medical or observational findings provided in medical reports, even for the purpose of impugning the credibility of the complainant, especially where the source of such information is unclear. These comments regarding such non-medical information is clearly hearsay. Previous contradictory statements are often admitted to impugn the testimony of a witness. However, just because medical records can be admitted under the Evidence Act does not mean that hearsay evidence found in such records is admissible or reliable if found in such reports. The complainant never admitted he made such statements.

[49] There are the usual concerns about the reliability of hearsay statements found in medical reports including the proper recording of information in a medical context especially when such details of the history may not be relevant to diagnosis or medical treatment. Where the purpose of the gathering of information is not for forensic purposes, the recording of such information, some time after the fact, may be inaccurate even if alleged to be admissible due to some exception to the general hearsay rule. The origins or source of the hearsay information may be unclear. The court, in this case, is also concerned about tainting of evidence.

[50] An example of possible tainting in this case would be the initial report received by the 9-1-1 operator who received a call of a potential drug overdose. The police were not sent to investigate the incident as a result and only an ambulance and paramedics attended at the scene. Paramedics Hocevar and Anderson did not see any evidence on the scene of actual drug use. The patient/complainant was described as a poor historian but the paramedics could not determine if that was due to drug consumption, the fall or a combination of the two. Their perceptions could have been influenced by the report that they received of a possible overdose.

[51] The initial report of a possible drug overdose may have initially tainted the Sault Ste. Marie report of Dr. Kirk Johns at page 2 of 3, from Sault Area Hospitals, that the defence asks me to rely upon, I suppose for a finding that the complainant was intoxicated by meth. I do not accept that such medical report stands for such proposition. The initial "Assessment" reported by the physician initially stated:

it is somewhat unclear on physical examination, should this be a neurological versus how much may be drug induced as he appears to be somewhat intoxicated at this time, with mumbling, mildly incoherent speech, and may not be able to elicit motor strength because of this.

[52] A reassessment appears in the same report, on the same page, three paragraphs down, once a radiology report had been received which "Reassessment" reads as follows:

I was contacted urgently by radiology over concern over the patient's C-spine CT scan. There is a 50% subluxation with jumping and locking of the facets. Bilateral facet fracture as well. I will reach out to critical urgently in regards to this patient for life or limb case.

[53] There is no longer any mention of possible drug effects or causation. The assessment and reassessment, at least from a medical point of view and of physical observations, appears to confirm a physical injury.

[54] I do not see this assessment, when read in context together with the reassessment, as confirming drug intoxication.

[55] With respect to page one of the report of Dr. Johns, the complainant advises that he does not recall anything further after entering the ambulance until he wakes up in Sudbury, attached to various monitors, and it appears on a respirator. He also testified that he did not recall speaking to the paramedics. The "history of presenting illness", set out in the report of Dr. Johns and the source of this information seems to mirror the paramedic documentation. As I am not satisfied where this information originated, such information on page 1 of his report is inadmissible hearsay not acknowledged by the complainant, and as a result is of no use to me to impugn the complainant's testimony at trial as I find said information to be unreliable.

[56] Similarly, with respect to social history at page 872, the information there is clearly hearsay and presumptively inadmissible. If anyone wished to submit evidence regarding recent substance abuse history for the complainant the alleged source of information set out in the social work report, the family members, could have been called as witnesses.

[57] As none of the physicians who prepared reports were called to give evidence, any hearsay evidence in those reports is presumptively inadmissible. It is unclear to me what if anything the complainant said to various doctors and other medical staff and how much information was elicited by means of a review of the medical chart and past history or was as a result of limited answers to leading questions by medical personnel. It appears that little, if any, information was a verbatim quote of what was stated by the patient. At various times the complainant was attached to a respirator and could not speak.

[58] In the almost 1000 pages of medical documentation relating to treatment of the complainant, there was no toxicology screen ordered for the presence of methamphetamine so that there is no drug testing or clinical evidence of the presence, or lack of presence of methamphetamine, in the complainant's blood.

[59] The court finds that there is no admissible medical information that would assist the court in determining whether the complainant was intoxicated by meth or had meth in his system at the time of his admission into the hospital, and many of the comments in the medical reports are not admissible for the purpose of impugning the testimony of the complainant.

Ambulance Reports and Testimony of the Paramedics

[60] The paramedics responded and were the first to assess the complainant at the scene. They were told the reason for the call was a possible overdose.

[61] From information received from the complainant and based on their observations of the scene they were satisfied that the complainant had fallen from the roof. Neither of the paramedics believed a criminal offence had been committed and they did not call the police to attend. They were not provided with any name of a potential accused involved in the incident.

[62] Paramedic Hocevar testified that he was told by the patient his name, age, lack of a fixed address and provided other information directly that the "patient [was] smoking meth today with a friend." Anderson's testimony was that the complainant had told them he had smoked meth earlier in the evening. This evidence contradicts the testimony of the complainant where he indicates he consumed meth the day before. That information is noted in the written reports. The source of that information, which contradicts the complainant's testimony at trial that he only ingested meth the day before, the court finds is capable of being used to question the credibility of the complainant. It was contrary to the complainant's interest to admit recent drug consumption. The accused testified at trial that he was not using meth that evening. As to the reliability of such a statement, that statement appeared to be made in a timely fashion to the paramedics at the same time as accurate information was provided as to his name, age and lack of a permanent residence. Such information was reduced to writing within a relatively short period after the statement was provided. I find that evidence is capable of impugning the evidence of the witness.

[63] Anderson admitted that Hocevar was in the back of the ambulance with the complainant and would have conversed more with him. Much of the detail of the report could not be confirmed by the Paramedic Anderson as to what exact words were spoken by the complainant. In addition, the paramedics completed their written reports some hours after the incident potentially resulting in some inaccuracies in their reports or recollection.

[64] The court does not find the other details as set out in the incident and ambulance call report detailing at times contradictory versions as to what occurred and whether the complainant was chased out or fell out of the window as being of much help for impeaching the testimony of the complainant for the following reasons:

1. There are inherent contradictions in some of the reports, for example what floor the complainant fell out of, and the testimony provided by the paramedic Anderson.
2. The complainant had broken his neck and was likely in some shock which could have affected his recollection of the events or his accuracy in describing the events;
3. The complainant was described as a poor historian;
4. English is not the complainant's first language;
5. The possibility the paramedics misinterpreted what was said to them by the complainant.

Credibility and Reliability of Complainant's Testimony

[65] The complainant testified in a forthright manner and never resiled from his position that:

1. he had not consumed any drugs on the evening in question,
2. he entered the house with Ms. Laroue to get his belongings,
3. the Accused David Carrie followed him into the residence demanding that he pay him money that he claimed was owed to him, slapped him from behind apparently knocking him out,
4. that he fell to the ground or possibly half on the ground and on the bed and was knocked unconscious;
5. that he got up and jumped on the bed and the accused swung at him with a spud wrench in an upward motion, missing him and hitting a window, breaking the pane and allowing the window to swing open;
6. that the complainant then exited the window fearing for his life;
7. He tried to get down from the roof and grabbed the eavestrough to get down only to have the eavestrough come loose and he fell hitting the front railing with his feet and falling backwards breaking his neck.

[66] The court finds that on the day in question, the evidence that the court accepts establishes that the complainant crawled through a window and fell off the porch roof, ultimately falling to the ground, landing on his neck, breaking his neck.

[67] The defence raised a number of issues as to the credibility and reliability of the evidence of the complainant:

1. Defence counsel takes issue with Ms. Laroue leaving the area of the incident, and not calling for help when an altercation reportedly occurred between the accused and complainant. I do not accept Ms. Laroue's departure as negatively impacting the issue of credibility of the complainant. Unfortunately, Ms. Laroue could not be found and did not testify. She could have corroborated or contradicted the evidence of the complainant. Many people wish to avoid conflict and leave at the first sign of trouble. I did not think that the relationship between the complainant and Ms. Laroue was anything more than a passing acquaintance and the fact that Ms. Laroue left the area when an altercation commenced, the court does not find as affecting the complainant's credibility. The inability of the Crown to find and interview that witness did, however, deny the Crown the opportunity to have some potentially corroborative evidence of what transpired that evening.
2. The defence also points to page 5 of the medical records from Sault Area Hospitals, which is part of Dr. John's report. There is no mention of the source of this information of the existence of drug paraphernalia or needles found. Certainly, the paramedics who attended at the scene did not report seeing any evidence of drug use or consumption. There was a jacket under the head of the complainant. Given that the paramedics did not observe evidence of recent drug use or of drug paraphernalia, and given the lack of information as to the source and detail of this information, the court finds that such evidence is of no assistance to the court.
3. The evidence of the presentation of the complainant following the injury is consistent with someone who suffered a traumatic injury or possibly a combination of drug consumption and a traumatic injury. Based on the evidence before the court I cannot say which of the two options is the correct one. The comments with respect to observations of other treating physicians such as Dr. Navdeep Netta or Dr. Melanie Brulette do not establish that the complainant was hallucinating after the event nor assist me in accepting what happened on the evening in question given the lack of reliability of the source and/or the accuracy of the information received.
4. Different drugs have different effects on different individuals. Contrary to the suggestion by defence counsel that the complainant's denial that he suffers from some of the classic symptoms or side effects from meth use, should impact on his credibility, I do not accept those statements by the complainant as impacting on either his credibility or reliability. The complainant testified as to minimal "sociable" use of the drug. The court finds that his testimony that minimal use of meth does not significantly affect his behaviour or cause significant side effects as plausible.
5. The court has found that the evidence of the paramedic Hocevar that the complainant told him he had smoked crystal meth that evening was capable of being used to impugn the credibility of the witness since the complainant had vehemently denied such use on the evening in question under oath. However, the paramedics did not observe any obvious signs of drug use in the vicinity of the complainant nor could they conclude that he was under the influence of drugs. There was no toxicology testing that could confirm or refute whether there was significant meth in the complainant's system at the time of admission to the hospital.

[68] However, the court did accept some of the concerns raised by defence counsel and the court has made the following observations and conclusions that affect the reliability and credibility of the complainant. The accused is a "Vetrovec" witness who has a history of criminal convictions for crimes of dishonesty.

[69] There were a number of internal and other inconsistencies with the version of the facts as described by the complainant.

1. Although the record of the accused was provided and accepted by the complainant as accurate, he kept on asserting that his criminal convictions were more than 30 years old although that was clearly not the case. The offender had been convicted less than a month prior to the incident, on October 19, 2021 with using a forged document; on December 30, 2010, with three counts of fraud under $5000. The complainant had numerous convictions between 1994 and 2000, less than 30 years prior to his testimony in court, including crimes of dishonesty as well in December of 1997. The complainant had a total of five convictions for impaired driving and five other narcotics related convictions. The complainant had at least 12 previous convictions for violence and on 9 different dates was convicted of property crimes or crimes of dishonesty. Admittedly, the majority of those convictions were over 20 years old and pre-dated the year 2000. The court, given the background of this witness, should be very careful in reviewing the evidence of this witness with a critical eye, especially if such evidence is not corroborated;
2. Counsel for the accused suggests the reasons given by the complainant for visiting the home are suspect. The first point raised is the lateness of the hour. The time of the visit is 9:00 p.m. I do not see any issue with visiting someone at that hour especially if no children are present in the home. However, the person the complainant testified he was going to visit, Ralph Carrie, was not present but the complainant entered the residence anyways. The complainant testified that he had tools and clothes in the residence. He was coming to pick up some tools or potentially his clothes. However, he was homeless at the time and was couch surfing. It did not make sense that he would visit at such an hour to remove items when it did not appear he had a residence, or a better place to store these items;
3. Next was the issue of the reason for the argument with the accused – there seemed to be some internal inconsistency as to the amount claimed to be owing, which was initially described as being over $1000 and later admitted to be $3000, the amount specified in his statement to the police. I accept that some bikes or e-bikes may have cost as much as $3000 but the complainant at trial appeared inconsistent as to the amount that was claimed to be owing. Ultimately, he testified that he was not sure of the amount claimed to be owing.
4. The issue of evidence, namely physical evidence that would either corroborate or contradict the evidence of the complainant, the court finds is an important factor. The complainant indicates he was struck with such force by either a slap or a punch (his uncertainty on this point also calls into question his reliability as a witness) by the accused. There is no physical evidence of injury or bruising that would support the evidence of such a powerful strike that would have knocked someone out. The lack of such evidence is significant and would appear to contradict the evidence of the complainant.
5. There is no evidence of any glass or shards of glass on the clothing of the complainant or any cuts that would have resulted from him being in close contact to a broken window. Although this fact is not determinative, as the complainant testified that he climbed through the window, which had swung out and not through the broken pane, the lack of such evidence is a factor the court must consider in determining if the Crown has proven its case beyond a reasonable doubt.
6. The final issue raised by defence counsel was the implausibility of the account of the assaultive behavior. There are certain circumstances that cause the court concern. a) If the accused had knocked out the complainant with one slap or one punch and wanted to forcefully assault him, why would he not have taken advantage of the fact that he was lying on the ground instead of allowing him to get up. b) Why would he need a weapon of any kind given his much greater size than the complainant? c) Why would he not have not grabbed the complainant as he tried to escape through the window. d) The alleged action of striking upwards with a metal bar when it made sense to wield the weapon like a baseball bat at a horizontal angle if the accused wished to strike the complainant. e) The complainant testified he got on the roof and he first searched for some stairs to climb down off the roof. The complainant had stayed at that residence for periods of time, did repairs to the windows and would have been familiar with the roof as he testified he was to redo the roof. It does not make sense that the complainant would not know that there were no stairs from the roof leading to the ground from the patio roof and would need to look for such stairs.

[70] In addition to the issues of credibility there are also concerns with respect to the reliability of the evidence of the accused. It is not disputed that the complainant suffered a traumatic event that has left him a paraplegic. His recollection of the events immediately following the fall he reports are virtually non-existent. Although he discussed matters with the paramedics and provided them with information, he denies having any recollection of the events until sometime later when he found himself in Sudbury. There is also a concern about possible drug use on the evening in question. The injury and possible drug use on the evening in question give the court concern regarding the reliability of the complainant's recollection of the events in question especially in light of some of the internal inconsistencies described above.

Conclusion

[71] It is not up to the accused to prove his innocence. It is up to the Crown to prove the elements of the offence charged beyond a reasonable doubt.

[72] Given my comments above I am not convinced beyond a reasonable doubt as to the guilt of the accused on any of the charges given my concerns relating to the credibility and reliability of the testimony of the events as described by the complainant.

[73] As a result, all charges against the accused shall be dismissed.

[74] Given my findings above, the court does not need to deal with legal issues identified as numbers 3, 4 and 5.

Released: January 2, 2024 Justice R. Kwolek Ontario Court of Justice