ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 1701/12
DATE: 2012 06 08

B E T W E E N:

HER MAJESTY THE QUEEN

A. E. Norman, for the Crown

• and -

BRANDON HINDS

S. Williams, for the Defence

Defendant

HEARD: June 4 – 6, 2012

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[ 1 ] Mr. Hinds was at the Peel Courthouse on August 4, 2011 for the third day of his preliminary inquiry in relation to a charge of sexual assault. J.P., the complainant in that proceeding, was also in attendance at the courthouse. A term of Mr. Hinds’ bail prohibited him from communicating, directly or indirectly, with the complainant.

[ 2 ] At the morning break in the preliminary inquiry, the accused and the complainant each went outside to the area beyond the front doors of the courthouse. They did not exit together and were some distance apart during the break. Each was in the company of friends.

[ 3 ] Video surveillance of the exterior of the courthouse reveals that Mr. Hinds was the first to re-enter the courthouse. He did so on his own. It is alleged that, at the point of his re-entry, the accused turned to where the complainant was positioned and threatened her.

FACTUAL BACKGROUND

[ 4 ] J.P. met the accused at a bar on January 3, 2010. As a result of events not described in this trial, the accused, Donovan Jones and Daniel Downey were charged with sexual assault of the complainant. The accused and Jones have yet to be tried for the alleged sexual assault.

[ 5 ] According to the complainant, she had not seen the accused from the time he was charged until seeing him at the Peel Courthouse at the sexual assault preliminary inquiry in early August 2011.

[ 6 ] The preliminary inquiry commenced August 2, 2011. J.P. was in the courthouse on August 3. Her friends, L.K. and D.M., accompanied her for support. D.M. was in a wheelchair. J.P. testified that she disliked the accused in August 2011 and dislikes him now. On August 4, believing the accused to be guilty of sexual assault, she was “seeking vengeance”.

[ 7 ] J.P. testified that to this day L.K. and D.M. remain her friends. L.K. unequivocally testified that some months ago she had a falling-out with the complainant such that they were no longer friends.

[ 8 ] On August 3, on the complainant’s evidence, as the accused passed her in a hall of the courthouse during a break in the proceeding, he looked at her and mumbled something under his breath. The complainant testified that she was unsure whether she informed anyone of this incident prior to testifying in this trial. Detective Constable (Det.) Curtis testified that she did not make a note, until after the accused’s August 4 arrest, of her receipt of information from the complainant on August 3 about the accused’s gestures or mumbles. Det. Curtis testified that when the accused passed her on a break outside the courtroom he would stare her down a bit or give her a cut-eye, a kind of sideways look, while mumbling. Although she thought this was directed at her, she accepted that the accused may simply have been rapping to himself.

[ 9 ] L.K. testified that she had never met Mr. Hinds prior to the August 2011 preliminary inquiry. Although she was aware of the sexual assault allegations, she had no particular opinion about the accused.

[ 10 ] According to J.P., during the morning of August 4, as she was testifying, the accused was giving her dirty and angry looks and was attempting to stare her down. She felt intimidated. She believed that the accused knew she was afraid of him. She told Det. Curtis about this. The complainant variously described the accused as seated at defence counsel table or in the general body of the court in Courtroom #307.

[ 11 ] The complainant informed the court that on August 4 she was still in the witness box testifying when a morning break was called. At prior breaks and lunches, she and her friends had followed a routine of going outside through the front doors of the courthouse where they would walk south to a picnic table at the front of the building. J.P. and L.K. were smokers. The complainant had not seen the accused outside the courthouse during any earlier breaks in the proceeding.

[ 12 ] The courthouse surveillance videotape records the accused exiting the front door of the courthouse at 11:10 a.m. The videotape shows the complainant, L.K. and D.M. exiting the front doors along with Det. Curtis and Constable Murphy shortly after 11:11 a.m. At this point, the accused, Jones and a third person were already at the picnic table the complainant and her friends had been using. Det. Curtis steered the group to the north for their break. The complainant testified that Det. Curtis told her where she would be stationed before the officer went back inside. At about 11:12 a.m., Det. Curtis re-entered the courthouse and positioned herself in the vicinity of the security desks just inside the doors in order to keep an eye on the situation outside. However, from this position she was unable to see the complainant or the accused.

[ 13 ] In her in-chief evidence, J.P. marked an “X” on the Exhibit #2 photograph to show where she and her friends were positioned for the break. This was only a few feet from the front doors of the courthouse and described by J.P. as “almost immediately to the left of the front door” of the courthouse. She stood and smoked without moving around. She kept her eye on the accused. In cross-examination, the complainant initially rejected the suggestion that she and her companions were positioned at a bench further north and away from the front doors of the courthouse and that they had been escorted there by police officers. J.P. repeated her position that her group stayed by the large gray courthouse sign depicted in the Exhibit #2 photo. Under further cross-examination and reference to some of the Exhibit #3 video clips, the complainant acknowledged that she was in error in placing the “X” where she did on the Exhibit #2 photo. The witness then took the position that she was “probably” standing behind the sign and toward a tree nearer the windows and in turn further from the front doors. In her August 4 videotaped statement to the police, the complainant described herself as “sitting” outside. Referred in cross-examination to a series of benches to the north of the front doors of the courthouse as depicted in the Exhibit #4 photo, J.P. maintained that she was not that far from the door. By the end of her cross-examination, the complainant professed to be unaware as to where precisely she had been positioned or whether she had wandered at all. Questioned in re-examination as to where she may have been positioned, the witness stated: “I’m kind of lost”.

[ 14 ] According to L.K.’s evidence, during the morning break, the complainant and her sat on a bench to the north of the courthouse doors. On L.K.’s evidence, D.M. sat in her wheelchair in front of her and the complainant with D.M.’s back to the front door. Initially in her evidence, L.K. recalled the complainant seated closest to the front door of the courthouse.

[ 15 ] In her in-chief evidence, L.K. variously described their position as about ten or about twenty feet from the doors. Shown in-chief the Exhibit #4 photo of the north benches, the witness stated that she believed they were closer to the front door of the courthouse in August 2011 – perhaps only ten feet distant. According to L.K., her group spent the break chatting to one another.

[ 16 ] Det. Curtis, who has attended the Peel courthouse on many occasions over the years, testified that the north benches, as depicted in the June 2012 photos entered as exhibits in this trial, are positioned the same distance from the courthouse front doors as in August 2011. The only change in her view is that the benches were not then flush to the wall as they now are. The officer’s view appears to accord with one of the Exhibit #3 surveillance video clips from August 2011.

[ 17 ] According to the complainant, it was not as busy outside the courthouse as usual – there were a few civilians but the witness, in her in-chief evidence, could not say whether any police officers were outside. Det. Curtis considered the outside pedestrian traffic to be lighter than normal following the August long weekend.

[ 18 ] J.P. testified that as she chatted with her friends she kept her focus on the accused and his friends. The accused was watching her. She was very nervous on account of them being outside.

[ 19 ] The complainant testified that after she had been outside for four to five minutes, she observed the accused leave his friends and proceed toward the front doors of the courthouse. As he arrived at the most northerly front door and “as he opened the door”, the accused, who is black, turned as he was about to go in, stared straight into her eyes and, with an angry look, very loudly said: “bumbaclot, gonna die”. They were only five to six feet apart. The accused had an angry tone and the volume of his voice was very, very loud – almost a shout. He spoke very quickly. He spoke in an accent, a feature of his voice the complainant had not heard before. The surveillance videotape records the accused’s re-entry to the building at 11:17:00. The timing of the alleged threat was confirmed in cross-examination:

Q. And you advise that it is immediately after Mr. Hinds is opening the door that he makes this utterance, is that correct?
A. Yes.

[ 20 ] Although she had no idea what “bumbaclot” meant, she thought it was an insult. J.P. informed the court that she experienced a range of emotions – intimidation, shock, sadness, anger, violation, being very upset, shaken up, disgraced and really scared. When she immediately responded, “Fuck you” there was no reply from the accused.

[ 21 ] The complainant felt it was a brazen act on the accused’s part to do what he did at a courthouse. She agreed that in her subsequent interview statement to the police, when admittedly her memory was fresher, that she stated, “it was just so shocking that he would say that to me outside of a court[house] where there’s tons of police officers and everything.”

[ 22 ] L.K. testified that when she heard one quick and really loud yell she looked in the direction from which it came and saw the accused at the front door of the courthouse holding the door handle with the door open looking directly at her group. According to L.K., the complainant was on the right side of the bench at the time. It was the yell which attracted her attention:

Q. I’m going to suggest to you that by the time you look up, whatever has been yelled by whom[ever] is completed and all you are able to observe … is Mr. Hinds entering the building?
A. Looking directly at us, yes.

Q. That’s the entirety of your observation, when you look up Mr. Hinds is holding the door?
A. Yes.

Q. Why do you attribute the yelling to Mr. Hinds?
A. Because he was looking over directly at where J.P. and I were sitting.

[ 23 ] L.K. testified that the yell she heard was uttered quickly in her view by the accused, who she had never heard speak on any prior occasion, in an accent and angry tone and with an angry look. When questioned, the witness was unable to provide any foundation for her opinion as why she described the tone and look as “angry”. On the witness’ evidence, to her, “it sounded like” the yelling was, “Bumbaclot … you die”. While L.K. does not understand patois, she thought what “bumbaclot” meant was, “you’re a piece of shit”. L.K. was unable to recall whether anyone else was around at the time. In her view, “it looked like he was threatening” the complainant. The witness confirmed that J.P. became really angry and said, “Fuck off”. She agreed that by the time her friend said that, the accused was already in the building.

[ 24 ] It was the complainant’s understanding that her two friends had never met the accused or spoken to him. To her recall, when the accused spoke, there was no one else in the vicinity of her and her companions.

[ 25 ] J.P. testified in her in-chief testimony that she put out her cigarette and re-entered the courthouse within seconds of hearing the accused’s threat. She also stated that she took a minute “to digest” what had happened before going inside. L.K. testified that after responding to the accused, the complainant was angry and upset. The witness recalled the complainant saying words to the effect of “I can’t believe he said that”. To L.K.’s recall, the complainant “got up very quickly … and went into the courthouse doors” (Q: “You say she immediately gets up … and stomps in?” A: “Yes.”). According to the witness, J.P. stomped angrily inside leaving D.M. and her outside. L.K. also described J.P. as re-entering the courthouse “within minutes” of the exchange.

[ 26 ] The surveillance video records the complainant and D.M. re-entering the courthouse at 11:18:50 a.m.

[ 27 ] Det. Curtis testified that she observed the accused enter the most northerly of the four adjacent front doors of the courthouse. He was alone. He did not hesitate before entering. She was in the security area. She heard no shouting or yelling. It took about twenty seconds for the accused to clear the security desk screening. On the officer’s evidence, whenever Mr. Hinds saw her he would give her a dirty look and mumble under his breath. On this occasion, it was unusual because he did not meet her eyes but went on his way.

[ 28 ] Exhibit #3, the excerpts of courthouse surveillance videotape, reveal the following:

(1) channel 2 / August 4, 2011, 11:11:35 – 11:18:45 a.m.

• the camera angle is downward showing much of the front of the courthouse including part of the circular drive
• the quality of the video is poor and grainy
• throughout, on a steady basis, pedestrians can be seen coming and going at the front of the courthouse

(2) channel 4 / August 4, 2011, 11:10:10 – 11:10:43 a.m.

• Mr. Hinds exited the front door of the courthouse, turned left or north walking a few feet, spoke to someone not visible on the video, and then walked south in the direction of the picnic table

(3) channel 4 / August 4, 2011, 11:11:21 – 11:11:51 a.m.

• at this point, the complainant, L.K. and D.M., together with Det. Curtis and Constable Murphy, exited the front doors of the courthouse and moved to their left to the north

(4) channel 4 / August 4, 2011, 11:16:54 – 11:17:02 a.m.

• looking from inside the courthouse lobby out through the four adjacent glass front doors to the outside, Mr. Hinds first came into view at 11:16:54 a.m. walking right to left toward the most northerly door
• at 11:16:59:000 a.m., the door started to open outward as the accused pulled the handle
• at 11:16:59:765 a.m., the accused crossed the threshold with the right-hand-opening door along his right side starting to close
• by 11:17:00:500 a.m., the accused was two or three feet inside the building

(5) channel 1 / August 4, 2011, 11:16:54 – 11:17:01 a.m.

• this is a reverse camera angle to (4) above, shot from the outside of the courthouse looking toward the front doors of the building
• a few feet from the front doors of the courthouse, a person who appears to be a lawyer was standing facing away from the doors speaking to two persons
• at 11:16:59:250 a.m., the accused began to pull the handle of the most northerly exterior door – at this point he was looking straight at the door
• at 11:16:59:515 a.m., the accused stepped through the doors with the open glass door to the right of his body
• by 11:17:00:015 a.m., the accused was in the courthouse and the door had closed behind him
• by the time the excerpt terminates, at about 11:17:01 a.m., there has been no observable reaction from the three persons standing out front of the doors speaking to one another

(6) channel 4 / August 4, 2011, 11:18:50 – 11:19:01 a.m.

• at 11:18:50 a.m., J.P. and D.M. are observed to enter the courthouse through the same door Mr. Hinds used to enter.

[ 29 ] Det. Curtis testified that she next saw J.P. when she heard, “Detective Curtis, Detective Curtis” as the complainant came up to her in the courthouse lobby area with her hands in the air. D.M. was with her. The complainant, trembling and appearing angry and upset, said, “Brandon just threatened me”.

[ 30 ] The detective took the complainant and D.M. to an interview room on the third floor of the courthouse. She instructed the two of them not to discuss the matter as she would be taking them out individually to interview them. No investigation was undertaken to attempt to interview any witnesses who may have been outside the courthouse. L.K. testified that when she re-entered the courthouse she went directly to the fifth floor not the third floor. According to Det. Curtis, by the time she returned from the fifth floor of the courthouse where she had enlisted assistance to arrest Mr. Hinds, L.K. was in the their floor interview room with the complainant and D.M..

[ 31 ] Mr. Hinds was arrested before court resumed on August 4. J.P. gave a videotaped interview to Det. Curtis at the courthouse between 12:20 and 12:25 p.m. The complainant agreed in cross-examination that she gave her account to the officer in a matter-of-fact way and was, at points, smiling as she did so. Det. Curtis testified that she did her best to put the complainant at ease when she dealt with her. The officer was of the view that J.P. was upset in the interview.

[ 32 ] During the afternoon continuation of the preliminary inquiry, the accused was in custody in a prisoner’s box in the courtroom. L.K. recalled that during the afternoon, as the accused was in the prisoner’s box, he was muttering and being disruptive. Det. Curtis testified that she did not observe any misbehaviour on the part of the accused in the courtroom. She was not paying attention to him. Her focus was on the complainant in the witness box.

[ 33 ] The complainant testified that as she continued to give her evidence before the preliminary inquiry judge, a couple of women were seated in the public area of the courtroom. They were strangers to the complainant and she did not know if they were associated with the accused. Det. Curtis recalled the complainant becoming distracted during her testimony. On J.P.’s evidence, one of these individuals, a black woman, began to glare and give her dirty looks and stare daggers at her. On J.P.’s account, under cross-examination at the preliminary inquiry, she stated at one point, “I’m just a little bit spaced out because the woman in the back there is staring me down and giving me dirty looks”. At that point, to her recall, the presiding judge intervened and cautioned the public gallery.

[ 34 ] As cross-examination continued on this subject in this trial, J.P. stated that what had in addition caused her to become flustered at the preliminary inquiry and to make reference to being “spaced out”, was an in-court threat by the accused – the accused pointed to the same woman who had been staring at her, laughed and mouthed toward the complainant the words, “She is going to kill you”. The complainant testified that at the time of this threat the judge was taking notes. Det. Curtis and two other officers were in the room at the time. Det. Curtis did not see this alleged event. She was unaware of the identity of the women or of any connection to Mr. Hinds.

[ 35 ] Initially in her evidence, the complainant stated that she specifically complained on the record of this conduct on the accused’s part to the preliminary inquiry judge (“I said it out loud in the preliminary inquiry”). In further cross-examination, after reviewing a transcript excerpt from the August 4 proceeding, J.P. conceded that she had not disclosed anything about a gesture by the accused. Her explanation is that the trial judge stepped in and spoke so she elaborated no further. The complainant testified that at the end of the court-day she told Det. Curtis what had occurred. Det. Curtis testified that at no point did the complainant inform her of the threat she alleges the accused made from the prisoner’s box during the afternoon of August 4. The officer testified to a recall of J.P. talking generally about the accused making gestures. She made no note of this. She undertook no further investigation. She did not consider from what she was told that the accused was threatening or communicating with the complainant.

[ 36 ] The complainant testified that as she was leaving Courtroom #307 during the afternoon of August 4, the same woman who the accused had pointed to in court said to her, “Stop lying and tell the truth, bitch”. On J.P.’s evidence, this frightened her further. Det. Curtis recalled that she stood up in the courtroom when the complainant left the witness box. She intended to escort her from the courtroom. As J.P. moved toward the rear of the courtroom, she said, “Look, she’s still staring me down”. The complainant was shaking. As they reached the back of the courtroom, two females stood up. Although she made no contemporaneous note of the matter, and took no further enforcement steps, the detective testified that she remembers hearing the words, “lying” and “bitch”. She hustled the complainant out of the courtroom.

POSITIONS OF THE PARTIES

The Crown

[ 37 ] Ms. Norman submitted that the prosecution proved beyond a reasonable doubt that Mr. Hinds committed the three alleged offences – threatening death, threatening a justice participant, and communicating with J.P. contrary to a condition in a recognizance of bail.

[ 38 ] Crown counsel submitted that a core element of the crimes, a threatening utterance by Mr. Hinds, was established on the evidence of the complainant and L.K.. It is said that both witnesses attribute to the accused, as he was looking at the complainant on his re-entry to the courthouse, a statement to the effect of “bumbaclot , [you] [gonna] die”.

[ 39 ] It was submitted that although spoken quickly this was not a “spout off” in the course of an argument but a deliberate threat to provoke fear in J.P.. The threat caused fear and intimidation of the complainant. L.K. corroborated J.P. being angry and upset. J.P. took the threat seriously as she angrily stomped inside and reported the matter to Det. Curtis. It was submitted that the threat made by the accused was entirely consistent with his ongoing actions in staring down the complainant to intimidate her, muttering under his breath when passing her in the hallway, and even after his arrest repeating his threat from the prisoner’s box of the courtroom. L.K. also observed the accused being disruptive in the prisoner’s box.

[ 40 ] Ms. Norman emphasized that context is important. The accused had a motive to intimidate J.P.. She was the principal Crown witness at the preliminary inquiry on a charge of sexual assault faced by the accused. The accused had no relationship at all with L.K. or D.M. and no apparent connection to anyone else north of the courthouse doors during the August 4, 2011 morning break.

[ 41 ] Crown counsel submitted that given the English language reference to “die”, the meaning of “bumbaclot” is irrelevant.

[ 42 ] It was argued that the complainant’s evidence ought to be accepted. L.K.’s evidence corroborates the complainant’s evidence as does the evidence of Det. Curtis in describing J.P.’s demeanour where she re-entered the courthouse after the break.

[ 43 ] It was reasonable that no one else in the courtroom, on the afternoon of August 4, 2011, after the accused’s arrest, saw the threat he made as those present were focused on the testimony from the witness box. It was said that inconsistencies within J.P.’s evidence are either immaterial or not determinative in assessing the witness’ credibility. Any differences between the evidence of the complainant and that of L.K. are not significant and go some way to debunking any allegation of collusion between them.

The Defence

[ 44 ] Ms. Williams submitted that the prosecution failed to prove the allegations beyond a reasonable doubt.

[ 45 ] Counsel pointed to what were described as “glaring inconsistencies” in the complainant’s evidence and in particular her changing testimony as to where she was positioned during the morning court break on August 4, 2011. J.P. was also shown to be in error concerning the asserted immediacy of her re-entry to the courthouse after hearing the alleged threat and whether she came back in on her own. These features of the evidence, it was said, speak to the credibility of the complainant’s account or alternatively the reliability of her story of who said something outside, what may have been said, and whether any utterance was directed to her as opposed to someone else.

[ 46 ] Defence counsel submitted that the complainant’s general lack of credibility can be inferred from her fantastic story about the accused, post arrest, repeating the alleged threat from the courtroom prisoner’s box. The presence of police officers and others in the courtroom underline the improbability of that event having occurred. J.P. made no complaint to the presiding judge and, contrary to her evidence that she reported the matter to Det. Curtis, the officer testified that she did not report the alleged incident.

[ 47 ] Ms. Williams submitted that the complainant made up the story of a threat by the accused at the courthouse door. A short time after the alleged threat, the complainant did not appear scared or intimidated but was smiling and giving a matter-of-fact account in her video interview. L.K., then her good friend, went along with the plan and having committed to that version of events, stuck with it in this trial. Counsel emphasized that L.K.’s evidence was of limited value as she did not purport to see anyone actually speaking – from a distance, she looked in the accused’s direction after the yell. As well, there was clear opportunity for witness collusion on August 4 when J.P. and her two companions were briefly alone together in an interview room.

[ 48 ] Ms. Williams submitted that scrutiny of the surveillance video shows that no one in the vicinity at the time of Mr. Hinds’ re-entry to the courthouse showed any reaction as might be expected if a yell or shout had just occurred.

ANALYSIS

[ 49 ] The prosecution is obliged to establish guilt beyond a reasonable doubt in a criminal trial. A conclusion that the accused is likely responsible for the alleged crime(s) falls short of the high standard of proof required of the Crown.

[ 50 ] The accused in a criminal prosecution is presumed innocent. He has no burden of demonstrating his innocence. As a result, an accused person is not required to testify on his own behalf, or to adduce other evidence in defending a criminal allegation. In other words, no adverse inference is legally permissible where a criminal defendant does not testify.

[ 51 ] Central to the guilt/innocence determination in this case are findings as to whether Brandon Hinds attempted to communicate with J.P. outside the front doors of the courthouse on August 4, 2011, and if he did, insofar as two of the charges, whether any words spoken by the accused were of a threatening nature. This is largely a fact-driven analysis.

[ 52 ] The principal prosecution witness, J.P., was the only person to testify to directly observing Mr. Hinds utter, in the sense of speak, the alleged threat. There were not insignificant problems with the complainant’s evidence.

[ 53 ] J.P. admitted clear animus respecting the accused. She disliked him in August 2011. She wanted vengeance at the time of the preliminary inquiry. She dislikes Mr. Hinds now.

[ 54 ] The complainant swore in her evidence in-chief that at the August 4, 2011 morning break she and her companions were positioned only a few feet from the front doors of the courthouse. She also testified that when the accused re-entered the courthouse he loudly uttered a threat toward her from a distance of just five to six feet away from where she was standing. In her videotaped statement, the complainant described the accused coming “very close” to her location. With the location described by J.P., there would be an in-your-face scenario of direct and proximate confrontation. Only under persistent cross-examination, did the complainant’s account begin to shift. The witness next testimonially moved her location a short, but further, distance from the door to a position near a tree. Questioned further, and despite earlier denials of sitting on a bench yet a further distance to the north and away from the courthouse doors, the complainant ultimately conceded that she may have been seated on one of the north benches. Although the measurement of the distance between the benches and the front doors of the courthouse was not put into evidence, this is a far cry from the proximity to the accused first described by the complainant, a dramatic and unexplained discrepancy.

[ 55 ] J.P.’s evidence, at times, promoted a very prompt report to Det. Curtis of the utterance she alleges she heard – re-entry “within seconds” after putting out her cigarette. Confronted with video surveillance evidence, the complainant was forced to concede that there was in fact no immediacy to her alert of the police as she re-entered the courthouse with D.M. nearly two minutes after the accused had re-entered.

[ 56 ] In the context of questioning about the alleged loud threat, almost a shout, attributed to Mr. Hinds, and the potential for others to have heard any such utterance, the complainant testified that she was uncertain whether any police officers were in the vicinity out front of the courthouse in a position to hear what occurred. However, in her videotaped statement, given about an hour after the alleged threat and at a time where J.P. agreed events were fresher in her mind, she described her shock that the accused threatened her outside the courthouse “where there’s tons of police officers”.

[ 57 ] It is difficult to uncritically accept the complainant’s evidence relating to an alleged post-arrest threat by the accused on August 4, 2011 from the prisoner’s box in Courtroom #307. J.P.’s first report of such an event emerged under cross-examination in this case while under questioning as to the veracity of her account of a threat at the front door of the courthouse. Apart from the improbability that an in-custody accused just arrested for threatening death would repeat a threat, physically pointing and mouthing words to do so in a public, in-session courtroom with others present including police officers, other aspects of this story tend to support fabrication on the part of the complainant. She purports, while testifying, to have been able to lip-read from a distance the words Mr. Hinds was mouthing. No one else in the courtroom observed the alleged threat. J.P. maintained that she instantly reported the matter to the presiding judge out loud on the record. She did not. It makes no sense that the complainant would first report being spaced out because of the way a woman was staring at her as opposed to an observed death threat. The complainant testified that she reported the matter to Det. Curtis. She did not.

[ 58 ] These inconsistencies and problematic aspects of the complainant’s evidence are troubling. An individual, with a dislike of the accused, sought to present to the court a confident and cogent case against the accused – an oral threat delivered only five or six feet away, at a time when no police officers may have been outside the courthouse, with an immediate report to the police, and a pattern on Mr. Hind’s part of threats to kill. Under the rigours of cross-examination, the complainant’s credibility on these matters, significantly material and not trivial points, was seriously shaken. In the circumstances, J.P.’s evidence standing alone cannot be said to be sufficiently creditworthy to exclude reasonable doubt.

[ 59 ] Assessment of the prosecution’s discharge of proof of course requires review of the totality of the circumstances including the existence of potentially confirmatory evidence of the complainant’s account as well as any evidence which may fairly be said to contradict the Crown’s evidence or otherwise raise questions of implausibility and in turn a reasonable doubt.

[ 60 ] While L.K.’s evidence may be said, on its face, to be supportive of the complainant’s account of a threat at the front of the courthouse, close scrutiny of her testimony is warranted. She was a close friend of J.P. in August 2011 when she committed to an account of August 4, 2011 events. Her version of being with the complainant and D.M. at a bench within ten feet of the front doors of the courthouse is not sustainable on the whole of the credible evidence accepted by the court and in particular the evidence of Det. Curtis on this point and the surveillance video evidence. The complainant’s party of three was much further from the doors. L.K. did not see anyone speak or utter the threat she says she heard. On her account, she looked up only after the yell. This witness purported to describe what “it looked like” had happened. She, in effect, assumed Mr. Hinds was responsible as he was looking in their direction. She testified to what the yell “sounded like” to her, hardly an expression of confident reporting. On the evidence accepted by the court, the witness’ claim at one point that the complainant went into the courthouse right away after the yell is incorrect. L.K. was also incorrect about the circumstances of D.M.’s re-entry to the courthouse. As well, contrary to the witness’ evidence that she went straight to the fifth floor when she re-entered the courthouse after the break, on the evidence accepted by the court, she went to the third floor interview room to be with her friends – an opportunity for discussion before Det. Curtis returned.

[ 61 ] Undoubtedly, the prosecution’s case is strengthened by L.K.’s evidence as well as Det. Curtis’ evidence of the complainant’s demeanour in the courthouse lobby. As well, it could be circumstantially inferred that the accused had a motive to intimidate J.P. who was the complainant-witness in an ongoing criminal proceeding against him.

[ 62 ] I do not find the evidence relating to the accused muttering to himself in the courthouse hallway in the presence of Det. Curtis or the complainant to have any probative value. The witnesses’ evidence of Mr. Hinds attempting communication or conveyance of a message is highly subjective and interpretive. Further, the reported utterance of a woman at the end of the court-day in the preliminary inquiry on August 4, 2011 has nothing but tenuous relevance to whether the accused committed the crimes with which he is charged. Likewise, the complainant’s evidence about the accused purportedly staring her down in the courtroom or giving her dirty looks is of little or no value considering the interpretive nature of describing demeanour, the fact that the accused would normally be expected to be observing a witness in the witness stand, and the lack of any reported observation of this by Det. Curtis.

[ 63 ] Assessment of the totality of the circumstances, insofar as the prosecution’s discharge of proof in this case, must of course consider the absence of evidence as well, in the sense of what might be described as a gap in the evidence or a lack of ordinarily available investigative information. D.M.’s evidence was not before the court by in-court testimony or admissible equivalent. There was no admission, expert or other admissible evidence as to the precise and accepted definition of “bumbaclot” in order to give context and the full, not fractured, meaning to the entire phrase said to have been uttered. No attempt was made on August 4, 2011 to interview uninterested parties who were standing outside the front doors of the courthouse during the morning break.

[ 64 ] Turning to other circumstances of the allegations themselves, the yell or shout of a threat at the front of a courthouse in broad daylight is inherently an unlikely event. The outside of this courthouse, as confirmed by the surveillance videotape, is a busy location with constant pedestrian traffic as well as persons on break or otherwise outside talking to one another. Others were in the immediate vicinity when the relevant utterance is said to have been made. The outside of the courthouse was a location routinely frequented by police officers. The risk of identification, detection and capture would be high.

[ 65 ] Apart from this logical improbability, the surveillance video evidence, in my view, tends to counter the complainant’s account of events. On J.P.’s evidence, the three words, comprising a total of six syllables, were yelled out by the accused “as he opened the door”, a door which opened to the accused’s right and therefore between the accused and where the complainant’s party was situated. Mr. Hinds faced north as he approached to re-enter the courthouse door. However, given that the video shows Mr. Hinds looking straight at the door at the point at which he began to pull the handle toward him, as well as the one second or less which passed from him first pulling the handle until he is inside, it does not appear that he had his head turned sideways as he opened the door or that it can confidently be said that he had time to very loudly say, even quickly, the words attributed to him. Further, no reaction at all can be discerned from the persons standing immediately in front of the doors –for example, the individual appearing to be a lawyer does not flinch or turn as would be expected if there was a shout including the word “die” uttered right behind him.

[ 66 ] On the totality of the evidence, a reasonable doubt exists as to the guilt of the accused.

CONCLUSION

[ 67 ] The accused is found Not Guilty of the charges in the indictment.

HILL J.

DATE: June 8, 2012

COURT FILE NO.: CRIMJ(P) 1701/12
DATE: 2012 06 08

SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN v. BRANDON HINDS BEFORE: HILL J. COUNSEL: E. Norman, for the Crown S. Williams, for the Defence REASONS FOR JUDGMENT HILL J.

DATE: June 8, 2012