COURT FILE NO.: CR23/12
DATE: 20120625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUSTAFA OMAR, ANDRE PALMER, DAMIAN RICHARDS and ANGUS SNOW
E. Pecorella, for the Crown
A. Herscovitch, for Mr. Mustafa
A. Hope, for Mr. Palmer
H. Azimi, for Mr. Richards
B. Burgess, for Mr. Snow
HEARD: June 18, 19, 20, 21 and 22, 2012
REASONS FOR JUDGMENT
MURRAY J.
[1] The four accused before the court are charged with endangering the life of Kishon Felix thereby committing an aggravated assault contrary to section 268 of the Criminal Code of Canada. All four accused before the court pled not guilty. None of the accused testified.
[2] The four accused, and the victim, Kishon Felix, were all inmates on the same unit at the Maplehurst Correctional Centre in Milton, Ontario on the 18th of December, 2010. In the unit, there are eight cells on one level or tier and immediately above those eight cells is another tier of eight cells. Each cell normally has two inmates. The top tier of eight cells is accessible by a metal staircase going from the floor of the unit to a catwalk walkway which goes in front of cells 9 to 16 on the upper tier. There is capacity for 32 inmates in the unit. It was not established how many of inmates were present in the unit at the time of the assault.
[3] There is a surveillance camera operating 24 hours a day in the unit. The surveillance camera does not cover certain areas in the unit, in particular, an area behind a partition where there is a urinal and a toilet. There are partitions around the toilet facilities. The height of such partitions are obviously designed to give inmates privacy when they are using the washroom. The result is that the toilet facilities and an area between the facilities and the cells are not captured by the surveillance camera and therefore not visible on the video made by the surveillance camera on the date in question.
[4] On December 18, 2010, Mr. Snow and Mr. Omar were servers. Servers distribute food to the other inmates in the unit while the inmates are in their cells. Mr. Snow and Mr. Omar therefore had, by virtue of their server duties, significantly less time in the cells than did other inmates. On December 18, 2010, one of the inmates served by Mr. Omar was Mr. Felix in cell nine on the second tier. Omar and Felix had an argument during the dinner hour. Apparently the argument was about whether Mr. Felix had been delivered his bread. Mr. Felix was in his cell at the time of the argument. The argument was heated and, as a result, both Omar and Felix agreed to meet later and sort things out.
[5] After all cells were opened and the inmates had an opportunity to access the unit, Mr. Felix came down from the tier 2 level and waited in a corner of the unit near the washroom facilities. A person identified on the surveillance video by crown witnesses as Mr. Omar approached Mr. Felix and a fight began. Almost immediately after the fight began, the combatants moved behind the toilet facilities out of sight of the surveillance camera. In addition, almost immediately after the fight between Omar and Felix began, three other individuals, identified by crown witnesses as Palmer, Richards and Snow joined the two combatants in the area behind the washroom facilities. It was in this area behind the facilities, out of view of the surveillance camera, that an altercation took place in which Mr. Felix was injured. From the video recorded by the surveillance camera, it is apparent that the four individuals, including Omar and Snow who went with Felix into the area behind the toilet facilities and out of camera range, left the area shortly thereafter and Mr. Felix did not. Mr. Omar returned for a second time to the area behind the toilet facilities out of camera range while Mr. Felix was still there and out of sight of the surveillance camera. Mr. Omar and Mr. Felix both remained out of sight of the surveillance camera. Mr. Omar then exited the area leaving Mr. Felix. Eventually, Mr. Felix was able to leave the area behind the partition and have a shower. It was subsequently determined that Mr. Felix had suffered various contusions and a head injury as set out in more detail below.
The Evidence of the Crown
[6] The surveillance video was made an exhibit in the trial. At the outset, I wish to make it plain that after reviewing the surveillance videotape on numerous occasions, I am unable to conclude independently that Palmer and Richards are two of the four individuals who accompanied Omar and Snow behind the partitioned area surrounding the toilet facilities when the altercation between Omar and Felix first began. The imaging on the videotape is not clear enough to allow identification of Palmer and Richards as being involved even after having observed both of them in court over a period of days. The video is not clear enough to allow me to make any conclusions about the identity of the participants. The situation of Omar and Snow is unique. Snow is a white man and Omar is a black man. Both are servers. The surveillance video captures the images of both of these men when all other inmates are locked in their cells at meal times. One can therefore trace the activity of these two individuals from the time they were on their own when other inmates were locked in their cells up to the time of the altercation. In my view, by tracing the activity of Omar and Snow from the time when they are on their own allows me to conclude independently that Omar was engaged in an altercation with another inmate and that Mr. Snow, Mr. Omar and two other inmates entered to the partitioned area behind the toilet facilities immediately after the altercation between Omar and Felix began. As noted, the identity of the two other inmates is not evident from watching the surveillance video.
[7] Dr. Isukawa, a neurosurgeon from the Trillium Health Centre, gave evidence with respect to the injuries suffered by Mr. Felix. Dr. Isukawa’s testimony establishes that Mr. Felix was admitted to the hospital on December 20, 2010 having been transferred from hospital in Milton, Ontario. According to Dr. Isukawa, Mr. Felix was not conscious when he was admitted. A CT scan indicated a left frontal contusion with hematoma in the speech area. Dr. Isukawa also observed superficial abrasions on his face over his right eyebrow and left ear. There was also some swelling and bruising. There was no skull fracture. Initially, Mr. Felix was intubated and put on ventilation. Dr. Isukawa testified that his injuries were potentially life-threatening and, in particular, there was a risk from swelling in the brain and this necessitated medical intervention to prevent the prospect of permanent injury. Mr. Felix was ultimately released from hospital on January 10, 2011. The clinical notes indicate that Mr. Felix initially had word-finding difficulty and occasional paraphasic errors. The notes indicate that this gradually improved. His headache slowly resolved. He remained seizure free and was weaned from prophylactic Dilantin. He remained bright and alert and word finding was progressively improving at the time of discharge back to the correctional facility.
[8] The second witness called by the crown was Mr. Donald O'Brien, who on December 18, 2010 was an inmate in the unit with Felix, Omar, Palmer, Richards and Snow. In his evidence in-Chief, Mr. O'Brien stated that from cell number seven where he was located he could hear an altercation between a man in cell nine (subsequently identified as Mr. Felix) and Omar. According to Mr. O'Brien, he heard both of them indicate that they would deal with the matter later on when the inmates were released from their cells. Mr. O'Brien described himself and Omar as being top dogs in the unit and testified that Omar told him that the issue was between the man in cell nine and him and nobody else. Mr. O'Brien testified that the inmates were released from their cells at 5:30 PM. According to Mr. O'Brien, shortly after being released from his cell along with other inmates, while sitting at a table he witnessed Mr. Felix (referred to throughout Mr. O'Brien's testimony as the man from cell nine) come down the stairs from the second tier of cells and go to the vicinity of cells six and seven on the bottom tier close to the washroom area. According to O'Brien, after the guards had left the unit, the man from cell nine called to Omar who walked over and almost immediately a fight erupted between the two of them. He did not overhear what was said. He said he was sitting at his table approximately 30 or 40 feet away from where the altercation commenced and that although the metal stairs going from tier 1 to tier 2 were between him and the altercation, he could see right through them. He recalled that the man from cell nine may have thrown the first punch, but indicated he was uncertain. He indicated that Omar threw a punch and then within a few seconds while Omar and Felix were grappling, three other men came and they all disappeared behind the partitioning which surrounded the washroom facilities. O'Brien testified that for 5 or 6 seconds “they beat him up.” When asked who “they” were, O'Brien said Snow, Omar and the two other guys in the dock whose names he did not know. O'Brien testified that he could see the feet of the man from cell nine (from the knees down) and that he could hear a commotion and curse words. He further testified that on more than one occasion he saw a head pop up over the top of the partition surrounding the toilet facilities. O'Brien speculated individuals in the toilet area were interested in seeing if the guards were coming. He was unable to identify who this person or persons were. O'Brien testified that while Felix and the four inmates were out of view, he could hear the sound of punches and kicking. After five or 6 seconds, O'Brien testified that the four accused walked out from behind the partition and Mr. Felix was left lying on the floor. He described the unit as being very quiet. He also testified that after he and three others had left Felix in the washroom area behind the partition, Omar turned around and briefly returned to where Felix was located behind the partition and that he heard what he described as the sound of bone hitting concrete which he concluded was the sound of head bouncing off the cement floor. According to Mr. O'Brien, Mr. Omar then left the area where Mr. Felix was located.
[9] A few minutes after Omar had left the area where Mr. Felix was located, O'Brien testified that he went to check on Felix to see if he was all right and found him unconscious, lying on the ground with his legs twitching. O'Brien left Felix and subsequently returned with a sheet soaked in cold water which he intended to put under the victim's head. According to O'Brien, when he tapped the victim on the shoulder and asked him if he was okay, the victim told him to “F… off”. Mr. O'Brien then left the victim and returned to his table. After five or 10 minutes, a couple of other inmates took Felix to the shower. After exiting from the shower, Mr. Felix apparently had some difficulty maintaining his balance and he was removed from the unit. Mr. O'Brien testified that he was very opposed to four men ganging up on one man and that he was “old school” meaning that it ought to have been one on one.
[10] O'Brien testified that he knew Snow prior to the incident. O'Brien testified that he had known Omar for 3 to 4 months prior to the incident, that they had frequent interactions and that they had mutual respect for one another. Both Palmer and Richards had been on the range for a very few days prior to the incident and he had not had much interaction with either one. As noted above, he did not know their names at the date of trial.
[11] O'Brien then watched the surveillance video and purported to identify all four accused as being involved in the altercation behind the partition. The video indicates that Mr. O'Brien was seated at a table facing the cells and looking in the direction of the area behind the toilet facilities when the altercation began.
[12] In his statement given to the police on 22 December, 2010, Mr. O'Brien stated that he knew there was going to be a fight after dinner between Omar and the “guy in cell nine” (Felix). He recorded in his statement that the guy from cell nine called Omar over and Omar punched him in the mouth. Then three guys came rushing in and beat the hell out of him. Then they stopped and it was over. In his statement he said he went to see if the victim was okay and he was kind of on his side leaning against the wall. Mr. O'Brien testified that he could see the victim's legs moving-like twitching-it was disgusting. He then said he spoke with Omar and told him that he doesn't need to go back there anymore and that he (O'Brien) would check to see if he is okay. O'Brien's statement and reports that he took a rolled up sheet and ran cold water on it and went around to see if the victim was still “out” and that when he asked the victim to wake up and asked him if he was okay, the victim then turned and looked at O'Brien and said “what the f…” He described the victim as belligerent. Mr. O'Brien's statement indicates that he could see a cut on his face and an area where it was swollen. When he applied the wet sheet to the head area of the victim, the victim told him to “F… off” and Mr. O’Brien then reported to Omar that the victim seemed all right. In his statement, Mr. O’Brien went on to say that Omar then gone back and kicked the victim three more times in the chin and that the victim’s head went back and hit the floor. He stated: “You could hear it hit the floor real loud. The victim was out, probably unconscious, before hitting the floor.”
[13] In cross-examination, in contradiction to what he had said in his statement, Mr. O'Brien agreed that he could see nothing of what happened behind the partition. He was unable to testify as to which individual assaulted Mr. Felix and caused the injuries or whether all of them participated in the assault. In cross-examination Mr. O'Brien stated: “All I can say is that something happened in some fashion.” In his cross-examination, Mr. O'Brien basically repudiated his statement by saying he had the facts jumbled up and that it was given off the cuff.
[14] At the preliminary inquiry on December 12, 2011, Mr. O'Brien testified that Mr. Felix and Mr. Omar had got into a bit of a tussle and at the outset the victim had the upper hand on Omar. He stated at the preliminary: “he's basically got, he's, he's got the upper hand on Omar for about three or four seconds and then three guys come out of nowhere, run over.” When asked to clarify what he meant by the upper hand, he stated: “Well, he was winning.” This was not consistent with his written statement in which he stated that the guy from cell nine called Omar over and Omar punched him in the mouth. At trial, in cross-examination, Mr. O'Brien also testified that the victim threw the first punch. Furthermore, at the preliminary inquiry, when asked what he could hear when Omar and Felix began their altercation, he said he couldn't hear anything and that the TV was blaring and people were talking. This is in contradiction to his evidence at trial where he said that the unit was as quiet as the courtroom.
[15] Mr. O'Brien stated that when he gave his evidence at the preliminary, he was apprehensive and confused and didn't remember the sequence of events until he saw the video. He testified that he watched the video in whole or in part between five and 10 times immediately prior to the commencement of trial. Mr. O'Brien agreed that prior to looking at the video, he had things jumbled both in his statement and in his evidence at the preliminary. He agreed he gave a different version of the facts at the preliminary and in his statement and that he was confused with respect to the sequence of events until he saw the video. In my view, it is more likely that he tailored his evidence to fit the images on the surveillance video.
[16] With respect to identification, Mr. O'Brien could not identify beyond a reasonable doubt that Palmer and Richards followed Omar and Felix into the area behind the partition and were involved in the altercation with the victim. He had never identified these individuals by name prior to trial. He knew them only for a few days prior to the altercation on December 18, 2010. Although Mr. O'Brien believed he was shown a photo line-up, he was unable to recall whether he picked any of the accused out of such line-up. He purported to identify Mr. Palmer on the surveillance video not by any facial features but by his body shape. On at least one occasion he misidentified Mr. Palmer and Mr. Richards while watching the video. When being asked questions by his counsel, Ms. Azimi, he failed to recognize Mr. Richards even though in his testimony in-Chief he pointed to the same individual as being Mr. Palmer. He conceded that while he was 100% certain in his evidence in-Chief, he was no longer certain and agreed that he could have mistaken this individual for anybody else.
[17] Mr. O'Brien was in other respects an unreliable witness as well. When asked about certain prior convictions - including a conviction for fraud - where he had agreed to plead guilty on based on an agreed statement of facts, he denied the accuracy of the facts and asserted his innocence. He stated he was prepared to lie to the court on those occasions to achieve certain other objectives.
[18] I conclude that it would be unsafe to rely on the evidence of Mr. O'Brien for purposes of identifying Richards and Palmer as participants in any activity behind the partition on December 18, 2010.
[19] The next witness called by the Crown was Ms. Hediye Marriott, a correctional officer at the Maplehurst correctional facility since 2003. She did not view the incident except on the surveillance video. She was called to identify the four inmates who had been behind the partition with Mr. Felix. When asked if any effort had been made to identify those inmates who were in a position to witness all or part of the incident behind the partition, Ms. Marriott indicated that no effort had been made to identify those inmates and that her focus had been exclusively on identifying the four individuals who were behind the partition with the victim, Mr. Felix.
[20] I accept that she is able to identify Omar and Snow because she knew that they were alone in the unit while all other inmates were in their cells because of their role as servers. Knowing the identity of these two individuals, Omar and Snow, one black and one white, I accept that Ms. Marriott was able to trace their activity on the surveillance videotape from the time they were alone to the time of the commencement of the altercation between Omar and Felix. I also accept her evidence of identification with respect to Omar and Snow as being two of the four inmates who went behind the partition with two other inmates into the area not captured by the surveillance camera. She conceded in her evidence in-Chief that she was not able to identify Mr. Richards independently and that she had relied on the assistance of another inmate to make that identification. The inmate was not called to give evidence. Ms. Marriott was unable to provide any reliable identification of Mr. Richards based on her viewing the surveillance video and I am not prepared to accept her evidence as establishing the identification of Richards beyond a reasonable doubt. Ms. Marriott also conceded that her identification of Mr. Palmer was based on characteristics of Mr. Palmer that she purported to be familiar with rather than by identification of his face in the surveillance video and on the use of other “identification tools” - like unit records - which were not produced to the court. Ms. Merritt testified that she interviewed all four accused persons and that none indicated that they had sustained any cuts or injury and that no cuts or injuries were visible on any of them. I am not prepared to accept her evidence as establishing the identification of Palmer beyond a reasonable doubt.
[21] The victim did not testify in this case. The Crown advised that the victim had told police that he was unable to recall the events in question and, according to the Crown, this statement informed the Crown's decision to not call the victim to testify. There is no medical evidence that the assault on December 18, 2010 adversely affected the victim's memory. There is no evidence that the victim is not willing and able to testify. It is not disputed by defence that the victim told the police that he could not recall the events in question. The Crown conceded that the victim’s statement to the police that he could not remember the incident is not evidence of the truth of the statement. The assertion by the victim to the police that he had no memory of the event was not made under oath and was not capable of being tested in cross-examination. The Crown did not establish that the victim is unavailable to testify for legitimate reasons.
[22] In addition, the video makes it clear that there were three or four inmates who were in a position to see all or a part of the initial altercation including what happened behind the partition. None of these inmates were called to give evidence and no explanation was given.
[23] In R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, the Supreme Court of Canada commented on the Crown's duty to call witnesses including the victim. First, with respect to witnesses, the court stated at paras 30-31:
The question of which witnesses were "essential to the . . . narrative" came before this Court again in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. McIntyre J., for a unanimous bench, firmly rejected a tailoring of the Crown's discretion and instead held that the term "essential to the . . . narrative", at least in this context, meant no more and no less than that the Crown had to put forward enough witnesses so that the essential elements of the crime could be adequately proven. Hence, if the Crown decided not to call a witness it risked failing to meet the burden of proof incumbent upon it and losing the case. Specifically, McIntyre J. stated at pp. 190-91:
The remaining ground that the Crown failed to call a witness, Mrs. Yebes, essential to the unfolding of the narrative, must also fail in my view. The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason: see Lemay v. The King, supra. No such improper motive is alleged here. While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based. [Emphasis added.]
In my view, the reasoning in this passage is abundantly clear. "[E]ssential to the . . . narrative" does not mean, as many have attempted to suggest, that all witnesses with relevant testimony have to be called by the prosecution. On the contrary, it refers solely to the Crown's burden of proof in a criminal proceeding. Where the "narrative" of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the Crown risks losing its case. Additionally, where certain witnesses are not called, this can become a factor for an appellate court to consider in reviewing a decision to determine if a verdict was unreasonable: Whitehorn v. The Queen (1983), 152 C.L.R. 657 (Austl. H.C.); The Queen v. Apostilides (1984), 154 C.L.R. 563 (Austl. H.C.).
[24] In addition, the judgment of the Supreme Court of Canada in Cook articulated the implications of the failure by the Crown to call the victim. The court stated at paragraphs 50-52 as follows:
Indeed, in the vast majority of cases, the Crown will ignore calling the complainant or victim at its own peril as this testimony would be crucial to prove the offence in question. This is, of course, the very essence of this Court's decision in Yebes. The burden of proof beyond a reasonable doubt, as it is designed to, operates very much in the accused's favour in this regard. Where the Crown adduces nothing at all from the complainant or victim in a given case, it goes without saying that the Crown will need some other evidence of a compelling nature to establish the accused's guilt beyond a reasonable doubt. This burden will be even more difficult to overcome where there appears to be no good reason for refusing to call the witness. I would think that, in many situations, legitimate questions would arise in the minds of the trier of fact where a victim was willing and able to testify, yet without any explanation, was not called on behalf of the Crown. Indeed, in a situation where the failure of the complainant or victim to testify was completely unexplained, I would think that it would be open to the trial judge if he or she so chose, to instruct the members of the jury that they could adversely consider this absence of testimony in deciding upon whether or not the Crown had proved its case. I wish to make it clear, however, that this would not be the case where the Crown satisfies the trial judge that the complainant or victim is unavailable to testify for legitimate reasons.
[25] In summary, therefore, I see no unfairness from a Crown's decision to avoid calling a complainant or victim in an appropriate case. It is a tactical judgment which should properly be left to the discretion of the individual Crown.
[26] In the case at bar, the Crown did not call any of the individuals who witnessed the incident and neither did it call the accused. Therefore, legitimate questions arise where the victim and other available witnesses were not called on behalf of the Crown without any satisfactory explanation. The evidence of the witnesses and the victim may have been helpful in assisting in a factual determination of what occurred in the area behind the partition.
[27] However, the question still remains: Does the Crown have other evidence of a compelling nature to establish the guilt of the four accused persons beyond a reasonable doubt?
[28] The actus reus of this offence is established by proving beyond a reasonable doubt that the accused wounded, maimed, disfigured or endangered the life of the victim. The mens rea of the offence of aggravated assault is objective foresight of bodily harm and does not require proof of intent to maim, wound or disfigure. See R v. Godin, 1994 CanLII 97 (SCC), [1994] 2 SCR 484.
[29] It is agreed that the altercation in this case commenced with a consensual fight between Omar and the victim, Mr. Felix. A consensual fight which does not result in bodily harm is not prohibited by the Criminal Code. It is, otherwise, if bodily harm results. See R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] S.C.J. No. 65. The consensual portion of the altercation is captured on the video. Otherwise, all the surveillance video shows is that Snow and two others joined Omar and the victim in the area behind the toilet facilities which is not captured by the surveillance video camera.
[30] Based on the evidence of Dr. Isukawa, there is no doubt the injuries sustained by Mr. Felix were serious and required hospitalization and medical intervention and that without such intervention his life was in danger. It is also agreed that consent by Felix to fight Omar would not amount to a defence in the circumstances of this case if it could be established that Omar caused the injuries to Felix in the course of an assault.
[31] I now turn to the identification evidence. As noted, there is no reliable evidence on which to identify Palmer and Richards as two of the inmates who rushed to join Omar and Felix behind the washroom facilities in the area not captured by the surveillance video. I accept that the Crown has proven beyond a reasonable doubt that Omar and Felix were involved in the initial altercation and that Snow was one of the inmates who followed Omar and Felix into the area behind the washroom facilities.
[32] Quite apart from the question of the reliability of identification evidence, and assuming that it is established beyond a reasonable doubt that two of the accused, Messrs. Snow and Omar, were both in the area where an altercation took place and when an altercation took place, there is no evidence of who did what to Felix on that occasion. The surveillance video also indicates that Mr. Omar returned to the area behind the partition on his own while Mr. Felix was still there and after Snow, Omar and two others had left the area. It is entirely possible that the aggravated assault occurred when only Mr. Omar was present with the victim in the area behind the partition.
[33] The Crown has not established how the victim’s injuries were caused or who caused them. Neither is there any evidence of who aided or abetted the person or persons who committed the offence. Furthermore, there is no evidence that the four accused persons or any of them formed an intention in common to assault Mr. Felix and to assist each other in carrying out such purpose. Therefore, the court is not in a position to determine which person or persons inflicted injury on the victim. Neither is there sufficient evidence to conclude beyond a reasonable doubt that there was an intention in common between the four accused or any of them to assault the victim and to assist each other in that assault. In such circumstances, a verdict of guilty would be unreasonable. In this regard, the decision of the Ontario Court of Appeal in R. v. Schell, [1979] O.J. No. 870 is apposite.
[34] I therefore find the four accused not guilty of the offence of aggravated assault.
MURRAY J.
Released: June 25, 2012
** COURT FILE NO.:** CR23/12
DATE: 20120625
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MUSTAFA OMAR, ANDRE PALMER, DAMIAN RICHARDS and ANGUS SNOW
REASONS FOR JUDGMENT
MURRAY J.
Released: June 25, 2012