DATE: December 17, 2024
ONTARIO COURT OF JUSTICE Toronto
BETWEEN: HIS MAJESTY THE KING — AND — DERRICK COLLEY JUSTIN COLLEY CHRISTOPHER SPENCE
For the Crown: A. Nagra For the Defendant D. Colley: F. Shanahan For the Defendant J. Colley: S. Kovacs For the Defendant C. Spence: D. Carter
Heard: January 22 – 24, June 17-19, October 16 and 22, 2024
REASONS for JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] On December 25, 2021, Derrick Colley was the superintendent of a low-rise apartment building at 990 O’Connor Drive in the city of Toronto. He lived in the building with his wife, Jacqueline Colley. His son Justin Colley also lived in the building with his wife and twin children. Christopher Spence was a tenant in the building as was Demar Dwyer. Ever since Mr. Dwyer had moved into the building several months earlier there was significant tension between him and the two Colleys, especially Derrick.
[2] In the morning of December 25, those tensions erupted in an altercation that involved the three defendants and Mr. Dwyer. As a result of this altercation Mr. Spence was stabbed and cut with a knife. Mr. Dwyer was also injured but to a less significant degree.
[3] The police investigated and all four participants were charged with criminal offences. By the time the matter came before me, the charges against Mr. Dwyer had been withdrawn. The remaining three (the defendants) were tried before me on the following charges:
Derrick Colley: Break and Enter and aggravated assault.
Justin Colley: Break and Enter and aggravated assault.
Christopher Spence: assault, break and enter, assault with a weapon, weapons dangerous and aggravated assault.
B. THE EVIDENCE
(a) Introduction
[4] Mr. Dwyer testified for the Crown. Mr. Spence testified as did Justin Colley, who also called his mother, Jacqueline Colley as a witness.
[5] Several audio exhibits and photographs were filed as exhibits.
[6] There is very little common ground as between Mr. Dwyer’s testimony and that of defence witnesses Colley and Spence (whose testimony was remarkably similar).
[7] I shall not set out the evidence in detail. Mr. Dwyer, Mr. Spence, and Mr. Colley all testified in excruciating detail and a transcript of the evidence is readily available. Rather I shall summarize their versions of events with emphasis on the salient aspects of their testimony.
(b) Mr. Dwyer’s version of events
[8] According to Mr. Dwyer, ever since he had moved into his basement apartment six months prior, he had had nothing but trouble with the landlord, Derrick Colley, and to a somewhat lesser extent, Justin Colley.
[9] On the morning of December 25, 2021, Mr. Dwyer was minding his own business when he saw Justin Colley smoking a cigarette just outside the side door to the building. Mr. Spence emerged from the building, passed Mr. Dwyer on the exterior landing of the stairs to the side door, said something threatening to Mr. Dwyer and then joined Mr. Colley outside.
[10] Soon, Mr. Spence and Mr. Colley started saying things to Mr. Dwyer, such as “where is your mom to come suck my dick for Christmas”.
[11] Angry words were exchanged between them and Mr. Dwyer decided to go back into his apartment, which was at the base of a set of stairs just inside the side door. After entering the building, he turned around and saw Mr. Spence and Mr. Colley enter behind him. Mr. Spence kicked Mr. Dwyer down the stairs toward the door to Mr. Dwyer’s apartment. Mr. Dwyer went into his apartment and closed the door.
[12] Mr. Dwyer waited then opened the door and saw the two men outside his door. Mr. Spence was holding a metal bar. Both Mr. Spence and Mr. Colley were trying to break into Mr. Dwyer’s apartment by banging on the door.
[13] Mr. Dwyer then called 911 and Derrick Colley arrived minutes later. All three men outside the door were shouting at Mr. Dwyer.
[14] While all this was occurring and while on the phone with 911 Mr. Dwyer picked up a knife that was lying somewhere in his apartment.
[15] Mr. Dwyer opened his door twice and immediately closed it. Knowing Derrick was outside the door, he opened it a third time thinking that Derrick would calm things down in his role as superintendent. Derrick, Justin, and Chris Spence then pushed their way into the apartment.
[16] The fighting continued inside the apartment. Mr. Spence was swinging the metal bar. Justin was swinging his fists behind Mr. Spence and Derrick was egging them on while swearing at Mr. Dwyer. Mr. Dwyer defended himself with the knife in hand, injuring Mr. Spence. As Mr. Spence tried to run out of the apartment, the two Colleys pushed him back in. Eventually the two Colleys and Mr. Spence ran off.
[17] The police appeared within minutes.
(c) The defence version of events
[18] Mr. Spence and Mr. Colley gave practically identical versions of the December 25th incident.
[19] According to them, they were minding their own business outside near the side door to their building when Mr. Dwyer emerged from the side door yelling obscenities at them.
[20] As Mr. Dwyer and Justin Colley exchanged obscenities Mr. Spence began walking up the stairs to the side door when Mr. Dwyer took a knife out of his kangaroo pouch and stabbed Mr. Spence in the shoulder. Mr. Dwyer ran back in the building after the stabbing and Mr. Spence continued up the stairs and went through the door hoping to go to his cousin’s apartment.
[21] Mr. Dwyer was just inside the door on the inside landing, and he again attacked Mr. Spence with the knife, cutting his hand. Mr. Spence then kicked Mr. Dwyer down the stairs in the direction of Mr. Dwyer’s apartment. Mr. Dwyer grabbed Mr. Spence’s pant leg and they both fell to the bottom of the stairs ending up just outside the door to Mr. Dwyer’s apartment.
[22] Mr. Dwyer went into his apartment and closed the door. Mr. Spence, feeling angry, kicked the apartment door a couple of times then started to climb the stairs as Derrick Colley arrived. Justin Colley had gone to his mother and father’s apartment to report the stabbing and to get them to call 911.
[23] As Mr. Spence was going up the stairs Mr. Dwyer emerged from his apartment and again swung the knife at Mr. Spence. Mr. Spence grabbed Mr. Dwyer’s arm and they both fell back into Mr. Dwyer’s apartment where Mr. Dwyer continued his attack while Mr. Spence defended himself, while Justin Colley tried to, and eventually succeeded in extricating Mr. Spence from the apartment.
(d) The 911 calls
[24] Ms. Colley called 911 at 09:08:54 after learning from Justin Colley that Mr. Dwyer had attacked Mr. Spence with a knife. Mr. Dwyer called 911 from inside his apartment at 09:10:19.
[25] Both 911 calls were played for the court and made exhibits.
[26] In Ms. Colley’s call she tells the dispatcher that Demar Dwyer has attacked her son and Mr. Spence with a knife. She learns of Mr. Spence’s injuries while still on the call and requests an ambulance.
[27] Mr. Dwyer’s 911 call is a call for assistance. He tells the dispatcher that three men are trying to get into his apartment to attack him. When asked if anyone has a weapon, he tells the dispatcher that he has a knife but says nothing about the metal bar he testified was in Mr. Spence’s possession. One can hear shouting from at least some of the defendants. According to Mr. Dwyer, the fight in his apartment took place while he was still connected to 911.
C. ANALYSIS
(a) Introduction
[28] This case turns principally on the credibility of Mr. Dwyer, Mr. Colley and Mr. Spence and I must thus apply the rule in R. v. W.D., [1991] S.C.J. No. 26, which can be summarized as follows: if I believe the testimony of the defence witnesses, I must of course find the defendants not guilty. Even if I am not convinced by their testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find the defendants not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegations against each defendant beyond a reasonable doubt. If it does not, the defendants must be acquitted. If it does, they must be found guilty.
(b) The credibility of the witnesses and their accounts
[29] Mr. Dwyer has a serious though dated criminal record for violence, theft and failing to comply with court orders. Mr. Spence has a prior conviction for assault in 2012. There was no evidence of any prior convictions for Justin or Jacqueline Colley.
[30] All four witnesses testified in what appeared to be a frank and sincere manner. None of them was particularly combative or argumentative. Mr. Dwyer tended to go on at length when asked simple questions, but not in a way that I found would adversely affect his credibility. However, I find that Mr. Dwyer’s evasive approach to cross-examination on the details of his criminal record detracts from his credibility on that subject, and generally.
[31] The 911 calls are important in weighing the two contrasting versions of events. According to Mr. Dwyer, the three defendants would not have known he had a knife until after he had called 911. Yet, Ms. Colley learns of his knife from her son Justin before Mr. Dwyer’s 911 call. We know that because her call to 911 regarding the knife precedes Mr. Dwyer’s 911 call. Even though Dustin Colley’s statement to his mother that Mr. Dwyer had a knife is a prior consistent statement, not generally admissible as corroboration of his testimony, the fact that he referred to a knife and one was eventually wielded by Mr. Dwyer I find lends support to his testimony.
[32] Mr. Dwyer’s 911 call tends to support his testimony in that it sounds like his apartment is under siege and it would be unlikely for him to call 911 while acting in the manner described by the defendants. Yet, the fact that he didn’t tell the 911 dispatcher that Mr. Spence was wielding a metal bar when asked if anyone had a weapon undermines the credibility of Mr. Dwyer’s testimony.
[33] I find it difficult to believe that Mr. Dwyer would open the door to his apartment hoping that Derrick Colley would act reasonably as a superintendent and calm everyone down. Mr. Dwyer had a miserable relationship with Derrick Colley marked by a history of anger, threats, and mistrust. It is inconceivable that Mr. Dwyer would have thought that Derrick would do anything other than join the melee on the side of his son. Moreover, Mr. Dwyer was safe in his apartment with the door closed. He testified that the defendants could not have broken down the door. Opening the door was inconsistent with his avowed desire to protect himself. It was also contrary to the instructions from the 911 operator.
[34] Mr. Dwyer testified that he had a violent demon inside him which could strike if he were pushed. That and his criminal record for violence increase the likelihood that he was the aggressor on December 25.
[35] The defence version of events is not without its weaknesses. It is difficult to accept that Mr. Spence would follow Mr. Dwyer through a closed door, right after being stabbed in the shoulder by Mr. Dwyer.
D. CONCLUSION
[36] There are many reasons to doubt the credibility of all three principal witnesses. I neither reject nor accept the evidence of the defence witnesses. Nor do I reject or accept Mr. Dyer’s testimony. I am thus left with a reasonable doubt as to what occurred on December 25, 2021.
[37] The Crown has failed to prove any of the criminal allegations against any of the defendants beyond a reasonable doubt.
[38] The charges are dismissed.