ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 137/12 (Halton)
DATE: 20131219

B E T W E E N:

HER MAJESTY THE QUEEN

M. MacKenzie, for the Crown

• and -

MELVILLE DOS SANTOS

K. Taylor, for the Defendant

Defendant

HEARD: October 7,8,9,10,11, 2013

REASONS FOR JUDGMENT

O’CONNOR J.

[1] At the end of a long night of copious drinking at a house party in Oakville, an altercation between two friends erupted on the street outside the house. The two men pummelled each other with punches. One went down. The other, the accused Melville Dos Santos, is charged with aggravated assault.

[2] The Crown alleges Mr. Dos Santos inflicted the serious head injuries his friend, Ivan Chung, suffered that early morning. The Crown’s position is that Mr. Dos Santos caused the injuries when he punched and then kicked Mr. Chung in the head while he was on the ground and either unconscious or semi-conscious.

[3] The Crown called four witnesses, including Mr. Chung; Juliana Johnson, Mr. Chung’s niece; Michelle Causton, an independent witness who saw some of the aftermath of the fight from her balcony across the road, some 120 feet away from the scene; and Dr. Morley Langille, an expert toxicologist.

[4] The Defence argues Mr. Chung started the fight. The men then exchanged several blows before Mr. Dos Santos’ fiancé stepped between them to break it up. He denies kicking Mr. Chung while he was on the ground. The Defence called seven witnesses, including Mr. Dos Santos; the two Halton Regional police officers who attended the scene; Dr. David Rosenbloom, an expert pharmacologist; and three other party attendees.

[5] For the reasons that follow, I find I must have a reasonable doubt that the evidence proves that Mr. Dos Santos wounded, maimed, disfigured or endangered the life of Mr. Chung, thus committing an aggravated assault. I find him not guilty of the offence charged and any included offences.

The Party

[6] The party started in the late afternoon of November 19, 2011, to celebrate the birthday of Anthony Fredericks. It took place at his home on Prince Charles St. in Oakville. The guests, friends and relatives of the host, totalled about a dozen people, including Messrs. Dos Santos and Chung, who were long-time friends. It carried on until after 2:00 a.m. the next morning.

[7] Most participants consumed large quantities of alcohol and were intoxicated. A few were sober. Ms Juliana Johnson, Mr. Chung’s niece and his designated driver for the evening, said she had had one-half a beer the entire night. Ms Cindy Li, Mr. Dos Santos’ fiancé, had several drinks over the evening but was not severely intoxicated. The experts agreed Mr. Chung had a blood alcohol content (BAC) of between 192 and 227 milligrams of alcohol per 100 millilitres of blood. He was severely intoxicated. He also had traces of cocaine in his urine, although the experts disagreed as to when he would have ingested it. The Defence pharmacologist said it would have been within 20 hours before the urine sample was taken, which was shortly after his arrival at the Osler Health Centre at 7:47 a.m. on November 20, 2011, thus sometime during or shortly before the party. The Crown toxicologist said it could have been in his system for up to two to three days. Although I would accept the Crown’s toxicologist’s opinion as more probable, the fact of the minor quantity of cocaine in Mr. Chung’s system at the time of the incident would not have significantly increased his intoxication level. This is something of a red herring. However, his BAC readings confirm he was very drunk.

[8] Sometime after 2:00 a.m. on November 20, most of the party guests were congregated in the kitchen. They were downing beers and tequila shots. It was, by several accounts, a raucous scene. Someone proposed a “joke bet” – a contest as to who had the biggest penis. Most witnesses agree that a dispute then arose between Messrs. Dos Santos and Chung when the former put his hand into Mr. Chung’s pocket, allegedly to retrieve some money from it. Mr. Chung said he felt “disrespected”. They exchanged words. They went outside. The fight started. It was broken up. Mr. Chung went down and they parted.

The Fight

[9] Three of the Crown witnesses, including Mr. Chung, testified they saw the fight or some of the events surrounding it.

(a) Michelle Causton

[10] Michelle Causton lived on the third floor of an apartment building near the house where the fight took place. She said that between 4:30 a.m. and 5:00 a.m. she heard a commotion and went onto her balcony. From about 120 feet away she saw and heard a group of males and females arguing on the street below. She heard a female aggressively trying to calm down a male and have him leave the street. She saw a male on the ground, not moving, while others tried to waken him. She went inside her apartment to call 911 and then returned to the balcony. A male picked up and dragged the male on the ground and put him in the back seat of an SUV. The others left to go back up the driveway and into the rear yard of the house. The police arrived. Ms Causton said she did not see a fight, nor did she see anyone kick anyone else.

[11] Ms Causton described the aggressive male, whom the female was trying to calm down, as 5’7”, with a muscular build, wearing a white T-shirt. The police appeared to check the unconscious male. She did not notice the pants or footwear of the angry male.

[12] Ms. Causton gave her evidence in a straight-forward, apparently unbiased manner. Her evidence was internally consistent, but conflicted on some minor points with the evidence of other witnesses. She was not shaken on cross-examination. I accept her evidence as truthful and accurate respecting the events she described. However, she was not helpful on the essential issue of whether Mr. Dos Santos committed an assault on Mr. Chung.

(b) Juliana Johnson

[13] Juliana Johnson is Mr. Chung’s niece. She is 22 years old and attends university, in her fourth year. She said she had dinner with Mr. Chung and family members at a restaurant earlier in the evening. This group arrived at the party at about 2:00 a.m. She was the designated driver, having had only one-half a beer over the evening.

[14] At the party, everyone, except her, drank beer and tequila shots. She said no one was drunk, that all parties were “normal”. There were no drugs at the party. She described the penis joke, as others did, and Mr. Dos Santos’ attempt to put his hand in Mr. Chung’s pocket which upset him. She said she saw Tony Fredericks throw another guest’s sun glasses out the door. The two groups, Mr. Fredericks and his relatives, and Ms Johnson and the new arrivals, began shouting at each other as her group moved out the door and away from the house.

[15] Ms Johnson said she saw Mr. Dos Santos run out of the house and confront another guest, saying “You want to fight!?” and then push him on the chest. Mr. Chung got between them. Mr. Dos Santos swung and hit Mr. Chung on the left side of his head five or six times, she said. Mr. Chung fell into some bushes, got up and walked to the front of Ms Johnson’s car. Mr. Dos Santos hit him again on the left side of his face. He fell to the ground, his head hitting the ground near the driver’s side front wheel of the SUV. She said Mr. Dos Santos ran over and kicked his head into the tire or wheel of the vehicle. Mr. Chung was not moving when he did this. She said Mr. Dos Santos then knelt down next to Mr. Chung’s head and said “If you can pretend, so can I…”.

[16] Ms Johnson said she saw Cindy Li pick up Mr. Chung to move him into the car, but dropped him. The back of his head hit the pavement. This happened twice, she said. Others then helped her get him into the back seat of the SUV.

[17] The police then arrived and spoke to her and Mr. Chung. She said all he said to them was that his head hurt. Neither she nor Mr. Chung told the police anything about the fight or the kick she said she saw. She heard one officer say to the other, “Oh, it looks like a drunken brawl”, just before they left the scene.

[18] Ms Johnson, Mr. Chung and her group of relatives then left in a taxi for their home in Brampton. She was unable to drive, even though sober, because she had only a G1 driver’s license, which required a qualified, sober, driver to accompany her at night. No one else was sober.

[19] Under cross-examination, some internal discrepancies in her testimony and some contradictions with the evidence of other witnesses that I accept came to light. These included:

• She testified Mr. Chung fell to the ground next to the driver’s side front wheel. At the preliminary hearing she said he fell on the passenger side of the vehicle.

• In examination-in-chief she stated Mr. Dos Santos started the fight and kept hitting Mr. Chung five or six times on the left side of his face until he fell down. Other witnesses, as described below, said Mr. Chung started the fight by punching Mr. Dos Santos twice in the face, cutting his lip, causing it to bleed. Ms Johnson denies Mr. Chung initially hit Mr. Dos Santos twice.

• Ms Johnson said Mr. Dos Santos kicked the back of her SUV and then kicked Mr. Chung in the head while he was on the ground. No other witness said they saw either kick. Several witnesses said Mr. Dos Santos was not wearing any shoes, making it less likely that he would have kicked the car or even Mr. Chung with bare feet, although not impossible. Ms Johnson said she could not remember whether Mr. Dos Santos had bare feet.

• Although she admitted Mr. Chung had a lot to drink, she says he was not drunk or intoxicated. Others said he was “highly intoxicated”. His BAC was between 192 and 227. I have found he was very drunk.

• She said that one police car and a fire truck arrived after the fight. At the preliminary inquiry she said two police cars and an ambulance arrived.

• She said she told police the details of the fight, including that Mr. Dos Santos had kicked Mr. Chung in the head. However, neither officer said she told them any particulars about the fight, nor anything about a kick, something they would be likely to note if she had told them.

[20] Some of these differences are of minor concern. They can be explained by the fact she was observing a fast moving multiplicity of events under stressful circumstances. One would expect some confusion of the exact duration of events, or precise numbers (e.g. of punches), or the location of moving individuals at specific times. However, Ms Johnson is the only witness, among many who could have seen the alleged kick to the head, all important to the Crown’s case, that Mr. Dos Santos committed an aggravated assault. There are, as noted, frailties in her evidence. Important among them is her failure (and Mr. Chung’s failure as noted below) to advise the police officers of the alleged kick.

(c) Ivan Chung

[21] Ivan Chung, now 41 years old, the victim of the alleged assault, testified. He and Mr. Dos Santos had been friends for 17 years, since they met in Guyana. Mr. Chung and some family and friends had dinner and drinks together earlier on the evening of November 19, 2011. Around midnight he, Ms Johnson and a friend named Trevor Henry, arrived at the Fredericks’ home at about 2:30 am, where the birthday party was in full swing. He said he had three beers and a shot of liquor. Everyone was drinking beer and shots. He suggested the joke bet about who had the largest penis. Mr. Dos Santos put his hand into Mr. Chung’s pocket. An argument ensued between Mr. Dos Santos and Mr. Henry. They went outside. Mr. Chung said he followed them and got between them to break it up. He said Mr. Dos Santos turned towards him and started punching him. He, Mr. Chung, punched back and saw that Mr. Dos Santos was bleeding from his mouth. He, Mr. Chung, then got into his SUV. He remembers nothing else after this until later that morning when he recalls being in the hospital in Brampton, where he stayed for two weeks.

[22] He says he suffered two skull fractures (which have healed), dizziness, hearing impairment in his right ear (now almost fully restored), his sense of smell is gone and he has some short and long term memory loss. He has not returned to work and is now on a Long Term Disability Pension. He is now not taking any medication or physiotherapy for his injuries.

[23] In cross-examination, Mr. Chung had difficulty recollecting particulars of the events in the house before the fight, why his group was asked to leave the party, whether Mr. Dos Santos was wearing shoes or not, or details of the fight with Mr. Dos Santos. He said he did recall the two of them trading punches back and forth three or four times. He initially denied, however, that he started the fight or that he punched Mr. Dos Santos in the mouth causing him to bleed. He later said he did remember seeing Mr. Dos Santos’ mouth bleeding but denied he ever hit him. He said he could not recall if he lay down, fell down or passed out. He has no recollection of speaking to a police officer or of the cab ride home. He made no mention to anyone of being kicked in the head by Mr. Dos Santos.

[24] Mr. Chung’s evidence of his alcohol consumption before and at the party is suspect. He said he had had three beers over the late afternoon and up until midnight, plus three beers and one shot of liquor after midnight until about 2:30 am. The two experts agreed his BAC was between 192 and 227 milligrams of alcohol per 100 millilitres of blood. This reading could have resulted only from a significantly greater consumption than admitted by him.

[25] I found Mr. Chung’s evidence to be vague, lacking in particulars and contradictory of the evidence of other witnesses that I do accept. His lack of recollection could, of course, be the result of blows to the head received in the fight, particularly a kick, if it in fact happened. Or from his head hitting the pavement as described by Cindy Li, below. Or it could be the result of his considerable consumption of alcohol. Whatever the cause, the fact is his evidence was not helpful to the Crown’s position that a criminal offence was committed by Mr. Dos Santos.

[26] Six witnesses were called by the Defence.

(d) Anthony Fredericks

[27] Anthony Fredericks was the host of the party that night. He confirms some of the particulars leading up to the dispute and fight between Messrs. Chung and Dos Santos. The evidence of several witnesses confirms that everyone at the party, except Ms Johnson and perhaps Cindy Li, had consumed considerable quantities of alcohol. Mr. Fredericks said that Mr. Chung started the fight in front of the house by punching Mr. Dos Santos in the head and body several times. They then exchanged blows. Mr. Fredericks went into the house to put his shoes on. When he returned Mr. Chung was sitting in the back seat of his SUV. He never saw Mr. Chung on the ground, nor did he see Mr. Dos Santos kick him.

(e) Cindy Li

[28] Cindy Li is Mr. Dos Santos’ fiancé. She said she had two beers only over the course of the evening. She saw and described the joke bet, the exchanges between Mr. Dos Santos and Mr. Henry over a pair of sun glasses, the latter’s threat to come back and kill everyone, and the fight. She said Mr. Chung came up to Mr. Dos Santos and punched him in the mouth with his right hand, which prompted Mr. Dos Santos to respond with punches. They exchanged blows until she got between them to break it up. She led Mr. Dos Santos back into the house. She said Mr. Dos Santos was not wearing any shoes. She took and introduced as exhibits, photos of the bruises and cut lip that Mr. Dos Santos received in the fight. She said she never saw Mr. Chung go down to the ground. Ms Li had little to drink that night. She appeared to have a clear recollection of events and was not challenged on cross-examination. However, I have some concerns with her evidence that she never saw Mr. Chung on the ground. I accept that he did go down. Mr. Dos Santos said he did and Ms Johnson said she, Ms Li, tried to pick him up off the ground but dropped him, causing his head to hit the ground. Ms Causton said she saw a man on the ground.

(f) Michael Dos Santos

[29] Michael Dos Santos is the accused’s brother. He described the party events in the house similarly to others. He admitted to having drunk about ten beers before midnight and four or five after. He said he saw the fight start. He saw Mr. Dos Santos’ head snap back and he then spit out blood. He helped Ms Li break up the fight by getting in between the two men. He never saw Mr. Chung on the ground.

(g) Melville Dos Santos

[30] Mr. Dos Santos gave evidence. He is employed as the manager of an auto body shop. He is engaged to Cindy Li and they are expecting a child. He had known and was good friends with Mr Chung for about 17 years. He said that when Mr. Chung and his group arrived unexpectedly at the party after midnight, Mr. Chung was already pretty drunk.

[31] Mr. Dos Santos described the joke bet, his putting his hand into Mr. Chung’s pocket, his apology for “disrespecting him”, the altercation between two others over a pair of sun glasses and his trying to calm them down. He had about 13 beers and a couple of shots of liquor over the course of the party.

[32] He said it was when he tried to intervene between Mr. Chung and Mr. Henry that Mr. Chung punched him in the mouth, causing him to bleed. They both then traded several punches. He said that when his good friend hit him, it shocked him. After the last punch Mr. Chung staggered back and fell to the ground beside his truck. Mr. Dos Santos returned to the house and went to bed. He said that he wore no shoes the entire evening. He denied kicking Mr. Chung.

[33] Under cross-examination, Mr. Dos Santos was consistent with his in-chief recollection of the evening’s events. Further, he made some admissions against interest that tended to support his overall credibility. He admitted that when Mr. Chung stumbled backwards, he landed on the road beside his SUV and that his head could have been beside the driver side wheel, as described by Ms Johnson. He agreed he was very angry with his friend for having hit him in the mouth and that he wanted to punch or even kick him, but that he did not do so. He admitted to the police a few days later that he wanted to kick him.

[34] Under cross-examination he admitted he did not think to tell the police during his interview that he was bare foot during the melee. However, he was never asked about footwear or any question that would raise the issue of footwear. One wonders, in a case of alleged aggravated assault by kicking the victim in the head, why the investigator would not explore the nature of the footwear of the accused. Mr. Dos Santos was consistent is his denials of the investigator’s numerous suggestions that he kicked Mr. Chung in the head.

[35] Mr. Dos Santos did tell the investigator that he had broken bones in his foot from playing soccer and that the cast had been removed just two weeks prior, leaving the impression that he would not have kicked anyone with his injured foot. However, in cross-examination he admitted the bones had been broken four or five years ago. He has continued playing soccer since then.

[36] The officers were obviously sober. They made notes of their interaction with Ms Johnson, Mr. Chung and others. I accept their evidence of what transpired during their attendance as accurate. I would note that anything the officers told us of what others said happened is inadmissible hearsay if given for the truth of what others said to them. It was received as part of the narrative and not for the truth of what was told to them by the witnesses. What is important about their evidence is what was not told to them by persons who were eye witnesses to the events between the two combatants.

(h) Constable Reid Williamson

[37] Cst. Willamson has been a police officer in Toronto and Halton for 11 years. He arrived at the scene at 5:10 a.m. He understood from Cst. Walczykiewicz and the witnesses that there had been an altercation between two males, both of whom were highly intoxicated and that both parties had indicated they did not require medical attention. He observed that one man was holding his ear and said that it hurt. An ambulance arrived and left when the parties said they did not need medical attention. He spoke to both parties, who displayed the usual signs of impairment. He spoke to a young woman, who was sober, and arranged for a taxi to transport her and the others home, as she had a G1 license only and could not drive after dark except with a sober licensed driver in the car. No one else was sober. From other evidence, I conclude that the young woman was Julianna Johnson. The officer received no information from anyone that anyone was kicked, nor that anyone was suffering from a head injury.

(i) Constable Lukaz Walczykiewicz

[38] Cst. Walczykiewicz has been a Halton Regional officer for five years. He arrived at 5:15 a.m. and observed Ivan Chung in the back seat of an SUV. He got out of it with the help of another man, stood and spoke to the officer. The other man, named Trevor Henry, was one of the party attendees. Ms Johnson was also present. Mr. Chung and Mr. Henry were intoxicated. Ms Johnson was sober. All three participated in a conversation with the officer. He said he was told of a fight between Mr. Chung and another man, where they exchanged punches and he, Mr. Chung, fell to the ground. The officer said Mr. Chung showed no signs of injury, although he kept holding or picking at his ear. He was not bleeding. He refused to give the name of the man with whom he was fighting. He said he just wanted to go home and that he was not interested in laying charges. Again, no one mentioned anything about a kick.

[39] The officers knocked at the door of the house, which was in darkness, and no one answered. They assisted in moving the SUV off the road, getting the cab for Ms Johnson and the others and then cleared the area.

The Law and Analysis

[40] An aggravated assault is the intentional application of force against a person without that person’s consent, which assault wounds, maims, disfigures or endangers the life of the person assaulted. I find the injuries Mr. Chung suffered meet the definition of a wounding or maiming. The skull fractures are a wound and the partial loss of hearing and smell constitute a maiming. However, the real issue in this matter is causation. That is, whether the Crown has proven beyond a reasonable doubt that Mr. Dos Santos caused the wounding and/or maiming of Mr. Chung, or contributed to it to a greater than a de minibus extent: see R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 14-15.

[41] The Crown and Defence agree that the issue of the credibility of the various witnesses to the fight and the events surrounding it is the primary concern in deciding whether the Crown has proven beyond a reasonable doubt the guilt of the accused. In R. v. W. (D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), the Supreme Court of Canada and cases following and interpreting it, provides several principles that instruct the trial judge on the proper analysis of the credibility issue. At p. 409 of the W.(D.) decision Cory J. said:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue…

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[42] It has been established that W.(D.) has no application to individual items of evidence or to discrete facts in the case. It applies only to the elements of the offence charged: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 112.

[43] Further, W.(D.) is not limited to a case where the accused alone testifies and denies the charge. It also applies where there are credibility findings to be made between conflicting evidence called by the Defence or arising out of evidence favourable to the defence, even if called by the Crown: see R. v. B.D., at para. 114. Thus no evidence, whether favourable to the Crown or the Defence, should ever be assessed in isolation when determining credibility. Steps 1 and 2 of the formula should only be undertaken in the context of considering all the other conflicting evidence.

[44] In R. v. S. (J.H.), 2008 SCC 30, 231 C.C.C. (3d) 302, at para.11, Binnie J., when discussing step 2, said there must be an acquittal where the trier of fact concludes “…that they do not know whether to believe the accused’s testimony or not.” I would add to this reference to an accused’s testimony, that this principle would apply to the whole of the evidence, whether led by the Crown or the Defence. That is, if the trier of fact is unable to decide which conflicting version of events, among several, to believe, there must be an acquittal.

[45] In this case there is a plethora of conflicting evidence, not only between witnesses called by the Crown versus witnesses called by the Defence, but between and among all witnesses. As noted above, respecting the critical issue of whether Mr. Dos Santos kicked Mr. Chung in the head or not, most witnesses who were in a position to see the altercation say they did not see a kick or that no kick occurred. However, most of them were intoxicated or severely intoxicated. Only one witness, Ms Julianna Johnson, says she saw a kick. She was sober and thus arguably better able than others who were not sober, to recall and report accurately what occurred. Nevertheless, no one reported to the police at the scene that they saw a kick. This included even Ms Johnson and Mr. Chung, the two people in the best position to observe what would have been a dramatic, potentially unforgettable incident. I have described above the reservations I have regarding Ms Johnson’s general credibility.

[46] I must find, on a balance of probabilities, that the Crown has not proven that Mr. Dos Santos kicked Mr. Chung in the head. The issue then becomes whether the punches thrown by Mr. Dos Santos caused or contributed to the injuries he sustained.

[47] The evidence of who started the fight, i.e. who threw the first punches, is not entirely clear. Again, Ms Johnson and Mr. Chung say Mr. Dos Santos threw the first several blows. But Mr. Chung was very drunk, such that he does not remember much of what went on that night. I have found Ms Johnson’s credibility to be suspect. Several witnesses said Mr. Chung hit Mr. Dos Santos first, cutting his lip. These include Mr. Fredericks, Ms Li and Melville Dos Santos. On this issue, I would find, on a balance of probabilities that Mr. Chung threw the first punches and thus started the fight. His starting the fight raises the issue of the availability to Mr. Dos Santos of the defence of self-defence. Although neither side specifically addressed the issue, on the facts as I have found them, it could have been raised.

[48] Further, Ms Johnson said that she saw Ms Li pick up Mr. Chung to move him into the car, but dropped him, hitting his head on the pavement. This happened twice, she said. This event could be the cause or a significant contributing cause of the head injuries Mr. Chung suffered. I would accept Ms Johnson’s evidence that this occurred, notwithstanding my reservations about her overall credibility, because it is evidence which is helpful to the Defence. She was called by the Crown and it was clear that her sympathies were for Mr. Chung, her uncle.

[49] That the injuries amounting to a wounding and/or a maiming were caused by Mr. Dos Santos must be proved by the Crown beyond a reasonable doubt. I find the evidence of Mr. Chung’s head hitting the pavement twice while he was in the hands of someone other than Mr. Dos Santos raises a reasonable doubt about the proof of this essential element.

Conclusion

[50] Applying the W