COURT FILE NO.: 12-50000 326-0000

DATE: 20130625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAJ THAINE WILLIAMS

Paul Zambonini, for Her Majesty The Queen

Rohan Robinson, for the Accused

DUNNET J.: (Orally)

REASONS FOR JUDGMENT

[1] Taj Thaine Williams has been charged with robbery, aggravated sexual assault by wounding, aggravated assault by wounding and forcible confinement.

The Evidence

M.M.

[2] On May 8, 2011, the complainant, M.M. was an eighteen year old high school student. She lived at X1 M[...] Avenue in Toronto with her parents. That evening she was visiting a friend across the street at X2 M[...]. Shortly after one o’clock a.m., she entered the elevator at X2 M[...] to go home. She pressed the lobby button but the elevator opened on the parking floor and Taj Williams entered the elevator. M.M. was on her cell phone.

[3] Mr. Williams asked her where she was going and she said, “Home.” He told her that she was “pretty cute” and asked if she had a boyfriend. He also asked her if she would hang out with him for a while. She said, “No, my Mom is calling me.” She testified that she was being friendly and “went along” with him, because she did not take his questions as anything too serious.

[4] At 1:14 a.m., video surveillance shows the elevator door opening at the lobby level and Mr. Williams following M.M. out of the elevator.

[5] As they walked across the street together, Mr. Williams whispered to her, “I’m hiding from the police. I am not from around here. I need you to hide me.” She became suspicious and told him that she had to go home. She said that her parents were watching her from their balcony. He looked up and there was no one there.

[6] M.M. described herself as five feet four inches tall and slender. She described Mr. Williams as six feet tall with dark skin and an afro. He was wearing baggy pants and a hoodie that covered his face. He was unshaven and dirty.

[7] When they reached X1 M[...], he told her to wait outside until a man ahead of them went inside. M.M. testified that at that point, she did not feel safe, because he had followed her, but she did not want him to see that she was afraid. The man went inside and she and Mr. Williams entered the building and waited at the elevators.

[8] She testified that Mr. Williams appeared fidgety and was pacing back and forth. He told her that he had money and showed her American money. She thought that he was trying to offer her money to hang out with him and said, “I’m not the girl to do that for you.” She noticed that his tone of voice became more aggressive and he asked her why she would not hang out with him.

[9] When the elevator door opened, he told her to enter and he went in behind her. She called her mother on her cell phone and pressed the fourth floor button, as she lived on that floor. Video surveillance shows Mr. Williams pressing the buttons for the second and third floors. She talked to her mother in Serbian-Croatian and said, “I am on the elevator with someone and he is not letting me leave.”

[10] She testified that Mr. Williams grabbed the phone from her, took out the battery and put it in his back pocket. Video surveillance shows Mr. Williams taking the phone out of her hands. She said, “Please can I have my phone back?” and he said, “No. You will try to call someone again.” The elevator opened on the third floor and Mr. Williams walked out. She testified that she thought that if she stayed on the elevator, he would have caught up with her on the fourth floor and harassed her family. She did not know what he was capable of doing and she felt she had no choice but to follow him out of the elevator and down the hallway.

[11] When they reached the stairwell, she sat down and said, “I just want to go home,” and he said, “You will, you will.” He touched her leg and said, “Baby, it’s going to be fine.”

[12] Then he told her that he wanted to go down to the second floor. As they walked along the second floor hallway, the same man who had entered the building ahead of them was walking towards them. Mr. Williams told M.M. to stay quiet and not to make a sound.

[13] As they approached the garbage chute, she thought that he would rape her there, but he kept walking until he reached the middle of the hallway. He stopped and put a bag of white powder in the palm of her hand. He lit a clear pipe and started smoking. She looked down and said, “I have never done drugs before. You’ve found the wrong girl.” He said, “You are not going to,” and he told her to come with him.

[14] He went into the second floor stairwell and stood in the corner with the pipe in his mouth. He spread his legs and with his head back, he started unbuckling his belt and said, “I want you to do something for me.”

[15] M.M. testified that she knew that he wanted her to perform oral sex and she did not think that she was going to be given a choice. She ran down the hallway. Just beyond the elevators, Mr. Williams grabbed her neck from the back and bit her forehead and cheek. She screamed, “Please help me. Someone help me.” He told her to “shut up” and he put his finger in her mouth, cutting her lip. Someone came out of an apartment and Mr. Williams ran away.

[16] M.M. sustained a laceration to the left side of her forehead and left cheek, which caused swelling to her left eye for about a week. There was a small laceration to her lip and the inside of her mouth felt uncomfortable. The bruises on her forehead, left arm and right knee disappeared after one or two weeks and there is no scarring from the lacerations.

[17] The police advised M.M. that Mr. Williams had hepatitis C. There was concern that his saliva may have entered her bloodstream when he bit her and she was required to undergo monthly blood tests for a year. She did not contract hepatitis C.

[18] M.M. described her psychological injuries as follows: she felt traumatized and required medication for stress. She developed paranoia and trust issues. She changed schools and lost friends. She felt disgusted as a result of being told about Mr. Williams’ disease and felt that it was unfair that she might contract it and pass it down.

[19] In cross-examination, she agreed that her memory of events would have been better when she gave her video statement to the police immediately after the incident and during the preliminary inquiry in April 2012.

[20] In her testimony, she denied that she told Mr. Williams her name and background as they were crossing the street. When she was reminded that at the preliminary inquiry, she testified that she gave him her name and heritage, she acknowledged that she must have given him personal information but she could not remember doing so.

[21] She agreed that she did not tell the police or the preliminary inquiry judge that Mr. Williams told her that he was hiding from the police.

[22] She agreed that she was not overly concerned with Mr. Williams when he told her to wait outside until the man went into X1 M[...] ahead of them. She did not know what he wanted and she was puzzled.

[23] She testified that her mother did not have a chance to say anything to her on her phone in the elevator before Mr. Williams took the phone away. When she was reminded that she told the police that her mother told her that she was going to find her and tell her father to look for her in the building, she recalled the conversation.

[24] She agreed that Mr. Williams left the elevator before her on the third floor. She testified that she was chasing after him to calm him down, because she wanted her phone back for safety reasons.

[25] She agreed that she chose to sit down in the third floor stairwell. She told Mr. Williams that she wanted to go home and that her mother was waiting for her but he wanted her to “chill” with him.

[26] She agreed that she did not tell the police about Mr. Williams putting his hand on her leg.

[27] She also agreed that Mr. Williams made no attempt to compel her to consume drugs. He put the bag in her hand and told her to hold it. She did not see where he put the drugs afterwards.

[28] M.M. testified that when Mr. Williams told her to come into the second floor stairwell, she followed him. He was standing in the corner and she was six feet away. He said, “I want you to do something for me,” and scrunched up his hoodie so that he could unbuckle his belt. She testified that she knew exactly what that meant - oral sex.

[29] Although M.M. maintained that she told the police that Mr. Williams put his head back and spread his legs, she acknowledged that the transcript of the video recording does not include that information.

[30] She told the police that as soon as she ran, she started screaming until Mr. Williams caught up to her. In her evidence at trial, she testified that she did not scream before he caught her.

[31] She agreed that she did not say anything to the police about Mr. Williams biting her cheek. She denied that she bit his finger.

Police Officer Russell Rogan

[32] Police Officer Russell Rogan testified that he reviewed video surveillance of X2 M[...]. At 10:58 p.m. on May 7, 2011, a man matching the description of Mr. Williams used Styrofoam to prop open the ground floor moving room door leading outside from the building. At 1:03 a.m. on May 8, 2011, the man attempted to enter the lobby without success. At 1:04 a.m., he entered the building through the door to the ground floor moving room.

Michael Read

[33] Michael Read lived on the second floor of X1 M[...]. He was listening to music and drinking a beer when he heard someone say “help me” in the hallway. He looked out the peephole of his door and heard a voice shouting, “Help me”. He saw that someone had a big arm around a petite girl’s head in a head lock, shoulder lock or waist lock. They were both hunched over walking down the hall.

[34] He opened the door and said, “What’s going on out here?” He started to walk towards them and the person ran away.

Taj Williams

[35] Mr. Williams was arrested shortly after the police were called to the scene. He gave a video recorded statement to the police at 5:45 p.m. on May 8, 2011. He stated that he was 29 years old. He recalled drinking beer and consuming drugs before one o’clock a.m. when he left his friend’s place on the twentieth floor of X2 M[...]. He recalled seeing a girl in the elevator who knew his name. He blacked out in the elevator because he was drunk and high. He recalled the girl helping him up after he stumbled and putting her hand on his chest. He said that she was flirting with him. She told him that he was good looking and asked him for his phone number.

[36] The officer asked Mr. Williams if it felt good that she was flirting with him and he agreed that it made him feel good. The officer asked if it led him to think about one thing and he said, “Ya, but I could get a blow job in that same building, so why would I care to do anything with her?”

[37] Mr. Williams told the police that the girl asked him if he had any drugs and he gave her a piece of crack. He said that he was surprised that she asked him for drugs, because she did not look like a smoker. He said, “She looked like a school girl that doesn’t do stuff like that.”

[38] He told the police that he recalled putting drugs in the girl’s hand and waiting with her near the elevator at X1 M[...]. She was talking to someone on her phone. He remembered having a crack pipe with him but he said he did not share his stuff with anyone because he had hepatitis C. He did not remember biting anyone.

[39] At trial Mr. Williams testified in his own defence. He said that he was not being accurate or truthful with the police because he was scared and he was trying to distance himself from what had happened.

[40] His evidence was that he met M.M. in the elevator at X2 M[...] on the twentieth floor. They started to make small talk and she told him that he was good looking. He was stumbling and she asked if he was okay. In cross-examination, he testified that before meeting M.M., he had consumed eighteen beers and smoked crack and “weed”.

[41] When they left the elevator at X2 M[...], they walked across the street together. In cross-examination, he denied that he told her that he was hiding from the police. She told him that usually her parents were on their balcony at X1 M[...] but he did not see them there. A man who went inside that building ahead of them let them in. In cross-examination, he denied that he told her to wait outside until the man went into the building. He said that his intention was to smoke the rest of his drugs and go home.

[42] Inside the elevator at X1 M[...], he pressed the third floor button and M.M. pressed the fourth floor button. She was on her phone speaking in her own language. Mr. Williams testified that he asked M.M. twice to use her phone and each time, she said, “Hold on.” The first time she was texting and the second time she was talking to her mother. He testified that he grabbed the phone from her. He admitted that it was a stupid and childish thing to do.

[43] He testified that as he was leaving the elevator on the third floor, M.M. followed him. He said that they were laughing. She told him that her mother was waiting for her and she needed to go home. He asked her to “chill” for a bit and she said “okay”.

[44] Mr. Williams’ evidence was that M.M. went into the third floor stairwell and sat down. He was standing up and they exchanged names and talked for three to five minutes about people they knew in the area. He denied that she was begging him to go home and he denied that he told her to “shut up.”

[45] He told her that he was going to the second floor and she followed him. He lit his pipe to smoke some crack and put a bag of white powder in her hand. She told him that she had tried weed but she did not do hard drugs and he said, “No problem.” He testified that she held onto the bag while he was fixing his pants to put the rest of his drugs into his waistband and she must have seen what he was doing. He said that she did not look afraid. He did not think that anything was wrong.

[46] He testified that they went into the second floor stairwell. He wanted to make sure that the drugs in his waistband were not going to fall out. When he lifted up his sweater and reached into his waistband, M.M. darted off right away down the hall, screaming hysterically. He ran after her to calm her down.

[47] In cross-examination, Mr. Williams denied that he said anything to M.M. to suggest that he wanted oral sex and he denied that he exposed himself to her. He agreed that she was running as fast as she could and screaming hysterically. He maintained that he was running after her to calm her down and give her phone back.

[48] He testified that after she ran past the elevators, she stopped. When he caught up to her, she was still screaming, “Help me, help me.” He said to her, “Calm down. What did I do?” In cross-examination, he said that he put his hand in front of her mouth and said, “Relax, relax.” She grabbed his arm and bit his finger. He retaliated and bit her on the forehead and she fell down. Then he ran downstairs and out of the building. He denied that he dragged her down the hall.

[49] Mr. Williams testified that he threw away his sweater because he was hot. He threw away the phone because he thought his fingerprints were on it and he would be going to jail for something stupid. He did not remember taking the battery out of the phone but he recalled that when he was running after M.M., the phone dropped and he picked it up. He discarded most of the drugs and finished smoking the rest before going home.

[50] Mr. Williams testified that he has had hepatitis C for five to seven years. He has never been diagnosed with the disease and he does not take any medication for it. He has assumed that because his former girlfriend had been in contact with someone who had the disease, he would have been exposed. In cross-examination, Mr. Williams acknowledged that it is possible that he does not have hepatitis C. He added, “I have no idea if I have it or not.”

Legal Analysis

[51] The defence does not rely upon the first two prongs of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Rather, the position of the defence is that the evidence of M.M. does not prove the guilt of Mr. Williams beyond a reasonable doubt.

Robbery

[52] On count one, the Crown relies upon s. 343(c) of the Criminal Code which states:

Every one commits robbery who … assaults any person with intent to steal from him.

[53] The Crown submits that M.M. was in the elevator at X1 M[...] on her phone calling her mother for help when Mr. Williams grabbed the phone from her hands. It is submitted that she did not voluntarily relinquish the phone and he took it by force.

[54] Mr. Williams admits that he intended to steal the phone from M.M.. He denies that he intentionally applied force to her and submits that in the course of taking the phone, the contact was only incidental. Therefore, no assault took place. He submits further that M.M. was never asked whether he had contact with her hands.

[55] The surveillance video of events in the elevator shows M.M. entering the elevator holding the phone to her ear. Mr. Williams moves towards her and takes the phone out of her hands. The elevator door opens and he walks out of the elevator with his back to her. She walks out behind him.

[56] There is no issue that Mr. Williams intended to take the phone from M.M.. None of the evidence, however, clearly establishes that he intended to apply force to her when he took the phone. In my view, any contact with her was incidental and de minimus and did not constitute an assault.

[57] Mr. Williams’ actions constituted theft, as he took M.M.’s phone from her with the intent to deprive her of it, either temporarily or absolutely. I am not satisfied beyond a reasonable doubt that his actions constituted an assault. Thus, he is not guilty of robbery. I find Mr. Williams guilty of theft.

Aggravated sexual assault by wounding

[58] On count two, the Crown submits that Mr. Williams committed an aggravated sexual assault on M.M. by wounding under s. 273(1) of the Criminal Code. The Crown is no longer relying on the allegation that he endangered her life.

[59] The Crown submits that Mr. Williams told M.M. that he wanted her to do something for him and went to unbuckle his pants. It is submitted that viewed objectively, his intent was sexual. She refused his demand by running away. He ran after her and assaulted her by biting her.

[60] In addition to the provisions of ss. 265(1)(a) and (2) of the Code, the Crown relies upon ss. 265(1)(b) and (2) and contends that by his act or gesture, Mr. Williams attempted to apply force and had, or caused M.M. to believe on reasonable grounds that he had, the present ability to effect his purpose. The Crown asserts that the sexual assault in the stairwell continued in the hallway when he grabbed her and dragged her in the direction of the stairwell to complete what he had started.

[61] It is the position of the Crown that Mr. Williams was “hitting on” M.M. from the outset. It is the Crown’s contention that when he took her phone and told her to be quiet, he intended to control and confine her for a sexual purpose. M.M. initially thought that his purpose was to rape her in the garbage chute. Instead, he told her that he wanted her to do something for him and started to undo his pants. In her 911 call to the police, M.M. said that he was about to pull his pants down and he was about to “do oral sex.”

[62] It is submitted that during his statement to the police, it is telling that Mr. Williams raised the issue of fellatio himself when he said that he could get a “blow job” in the same building, so why would he care to do anything with her?

[63] The Crown contends further that Mr. Williams wounded M.M. when he bit her, causing her forehead to bleed. The Crown relies on R. v. Littletent (1985), 1985 ABCA 22, 17 C.C.C. (3d) 520 (Alta. C.A.) at p. 521 where the court held that a breaking of the skin is necessary to constitute “wounding”.

[64] Mr. Williams’ position is that no unwanted touching occurred in the stairwell. He was in the corner and she was standing six feet away. It is his position that her evidence as to what happened in the stairwell is uncertain and unreliable. In her statement to the police, she said:

M.M.: He was holding the – the meth whatever in his mouth and was tryna [sic] fix his –

Officer: -- undo his pants?

M.M.: I’m guessing because he’s like, “Okay now you’re gonna [sic] do something for me.”

Officer: That’s all he said?

M.M.: And, I figured –

Officer: --And then he started fiddling with his pants?

M.M.: --I figured.

Officer: Okay.

M.M.: Maybe he didn’t want to do that but – that’s the chance I took –

[65] Her evidence on the issue at the preliminary inquiry was as follows:

He’s like, “I want you to do something for me.” And then he started unbuckling his belt to unzip his pants but by the time I saw that if he was just about to unzip his pants, I ran for my chance ‘cause he was distracted.

… [H]e says, “I want you to do something for me.” So, he has like, the pipe in his hand and he’s like, unbuckling his belt and about to unbuckle -- about to unzip his pants, not that I see if he did or not, I just ran for the chance.

So, he was standing there, you know, spread out his legs and he’s looking up and he’s fidgeting with his belt. And then, as soon as he’s just about to pull down his zipper, I don’t see if did – I didn’t see if he did ‘cause at that point, I just ran.

[66] Mr. Williams’ position is that if he was just inches behind her when he was chasing her down the hallway, as she contends, why did he not grab her before they reached the elevators half-way down the hall? It is submitted that his actions are more consistent with running after her to tell her to stop screaming and then trying to get her to do so.

[67] In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302, the court held that sexual assault is an assault which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test is whether, viewed in the light of all the circumstances, the sexual or carnal context of the assault is visible to a reasonable observer.

[68] Factors to consider are the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, the circumstances surrounding the conduct, including threats which may or may not be accompanied by force, and whether the motive of the accused is sexual gratification.

[69] On the evidence of M.M., it is difficult to conclude that there was a sexual component to the interaction in the stairwell. Mr. Williams was backed into a corner and was not within arm’s reach. Objectively viewed, his statement and fidgeting with his belt while standing some distance away does not establish a sexual or carnal context. On the evidence as a whole, I cannot find that Mr. Williams demanded fellatio and M.M. refused before he retaliated by enforcing compliance. Moreover, the evidence does not support the Crown’s assertion that the assault in the hallway was a continuation of the sexual assault in the stairwell and Mr. Williams’ goal was to finish what he started by dragging M.M. down the hall to the stairwell.

[70] In light of all the circumstances, I am not satisfied beyond a reasonable doubt that an aggravated sexual assault took place, nor am I satisfied beyond reasonable doubt that a sexual assault occurred in the stairwell.

[71] There will be an acquittal on this charge.

Aggravated assault by wounding

[72] The Crown relies upon the same facts to support a conviction on count three, aggravated assault by wounding. Mr. Williams acknowledges that he assaulted M.M. and caused her bodily harm. He submits, however, that the injuries he caused do not constitute “wounding” in law.

[73] As a result of the bite to her forehead, there were teeth marks visible on her skin. Her evidence was that there was blood on her shirt. She also sustained either a scratch mark or teeth marks to her cheek. Her injuries were not permanent and healed within a week or two.

[74] In order to constitute aggravated assault, the injury must be more than something trifling, fleeting or minor, such as a scratch: R. v. Palmer, [2007]O.J. No. 1981 (S.C.), at paras. 79-85.

[75] The Crown concedes that there is no basis in the evidence for a conviction for aggravated assault by endangering life.

[76] In all the circumstances, therefore, I am not satisfied beyond a reasonable doubt that the injuries to her face constitute a wounding in law. Accordingly, Mr. Williams is not guilty of aggravated assault by wounding. I find him guilty of assault causing bodily harm, a lesser and included offence to the charge of aggravated assault by wounding.

Forcible confinement

[77] On count four, forcible confinement, the Crown submits that from the moment that Mr. Williams entered the elevator at X1 M[...], he was directing the actions of M.M. so that she could not leave and this continued in the third and second floor hallways and stairwells.

[78] It is submitted that Mr. Williams began to control M.M. by telling her to wait outside until the man entered the building. Once they were in the elevator, video surveillance shows that she is frantically pressing the button to the fourth floor where she lived. She told him over and over that she wanted to go home and he prevented her from doing so. It is submitted that she felt that she had no choice but to comply and she was biding her time and waiting for a chance to escape.

[79] Mr. Williams’ position is that he wanted her to “chill” with him. It is asserted that she was never physically restrained and there is no objective evidence that he refused to let her go.

[80] In R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), leave to appeal ref’d (1985), 18 C.C.C. (3d) 462n (S.C.C.), the court held that confinement does not require proof of total physical restraint. Further, it is not necessary for the victim to be confined for the entire time that she and the accused are together. If the victim is restrained against her wishes for any significant period of time, then an unlawful confinement has occurred.

[81] M.M.’s evidence is that she called her mother and said that the man in the elevator was not letting her leave. On the third floor, video surveillance shows Mr. Williams walking out of the elevator and down the hallway. He has his back to M.M. and she follows him out. Even accepting her explanation that she needed her phone and that she thought he might go up to the fourth floor and harm her parents, I do not find that he is controlling her movements at that point.

[82] In the third floor stairwell, M.M. chose to sit down and talk to Mr. Williams. In cross-examination, she was adamant that she did not need his permission to do so and she sat down on her own initiative. Thus, it is difficult to conclude on her own evidence that she remained with him because she was fearful.

[83] When Mr. Williams asked her to hold his drugs, she told him that she had never done drugs before and he said, “You are not going to.” She agreed that he made no attempt to compel her to consume drugs. On her evidence, she was not afraid to make clear to him that she was not going to do so. Her actions appear to be contrary to someone who claimed to be captive and had no choice to leave.

[84] Therefore, I am not convinced beyond a reasonable doubt that Mr. Williams deprived M.M. of her liberty, or coercively restrained her for a significant period of time. Thus, the Crown has failed to discharge its onus on this charge.

Disposition

[85] Accordingly, Taj Thaine Williams will be convicted of the lesser and included offences of theft on count one and assault causing bodily harm on count three. He is acquitted on counts two and four.

DUNNET J.

Released: June 25, 2013

COURT FILE NO.: 12-50000 326-0000

DATE: 20130625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAJ THAINE WILLIAMS

REASONS FOR JUDGMENT

DUNNET J.

Released: June 25, 2013