ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 0397/13
DATE: 20141218

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID IAN BERRY

Defendant

D. Mitchell, for the Crown

D. Burke, for the Defendant

HEARD: November 24-27, 2014

E.M. Morgan J.

[1] The Defendant is charged with aggravated assault, stemming from an incident that occurred in the early hours of May 31, 2012 near the intersection of King and Peter Streets in Toronto. The matter was tried over four days by me without a jury.

[2] The witnesses at trial were the victim of the alleged assault, a taxi driver who observed the events in passing, a friend of the Defendant who was with the Defendant on the night in question, four police officers who investigated the events, and the Defendant himself. In addition, the preliminary inquiry transcript of another taxi driver witness who has since left Canada was entered pursuant to section 715 of the Criminal Code.

[3] The Defendant has pleaded not guilty to the charge. He testified that it was a friend he was with, and not he himself, that committed the assault.

I. The victim

[4] Someone attacked Mauricio Bedoya as he was walking back to his hotel in downtown Toronto in the early hours of May 31, 2012, but he has no idea who it was.

[5] Mr. Bedoya is a financial accounting software manager who lives in Miami, Florida with his wife and four year old son. On May 30, 2012, he came to Toronto for a job interview, and stayed at a hotel near King Street and Blue Jays Way. That evening he went to a nearby bar with the two people who were hosting him for the interview, and they watched a basketball game on television. Afterward they dropped him at the hotel and Mr. Bedoya went up to his room.

[6] Sometime after midnight, Mr. Bedoya left the hotel looking for a store to buy cigarettes. He testified that he took a walk for about 15 minutes, going across Queen Street toward Spadina Avenue and then circling back toward his hotel on King. At one point in his walk, Mr. Bedoya needed to use the washroom. He passed a late night club called The Underground and asked a bouncer standing outside if he could go in to use the facilities without paying the cover charge. The bouncer agreed, and Mr. Bedoya entered the club for a few minutes and then left.

[7] He does not know precisely what time it was, but he can recall leaving The Underground and thanking the bouncer on the way out. He also recalls turning onto King Street to continue his walk back to the hotel. With that, however, Mr. Bedoya’s recollection of the night’s events ends. The next thing he remembers is waking up in St. Michael’s Hospital, where he was being prepared for surgery.

[8] Mr. Bedoya suffered what can only be described as an extremely serious blow to the head. He had not seen the attacked coming, and has no idea who accosted him or why. His wallet with about $100 was still in his pocket, so robbery was not the motive. All he knows is that someone struck him in a way which caused him a severe head and ear injury, as well as some lacerations and bruises on his right arm.

[9] In fact, the medical report submitted by Mr. Bedoya and made an exhibit at trial shows that his injuries are near-catastrophic. He now knows that he had 4 skull fractures, broken bones in the ear, cerebral spinal fluid accumulated around the brain area, and bleeding from the nose. He spent a month at St Michael’s and is not entirely sure what surgical procedures he underwent. He has all but lost the hearing in the right ear, his short and long term memory is affected, he has constant headaches, and has issues with balance. He underwent several months of physiotherapy in order to learn to walk and to do simple tasks like brush his teeth again.

[10] The injuries changed Mr. Bedoya’s life. He testified that he had no insurance coverage for the stay at St Michael’s, and has been left with a hospital bill of “upwards of $70,000”. He has not been able to work since that fateful night in May 2012, and cannot afford to pay his hospital bill.

[11] His family’s life has changed as well. Mr. Bedoya indicated that since suffering his injuries he has not been able to provide financially for his family. Perhaps not surprisingly, he has been suffering from depression since the incident and has begun seeing a psychiatrist.

II. The taxi drivers

[12] This case features two taxi drivers who played the role of passing witnesses. One of the drivers, Iftikhar Butt, witnessed the attack on Mr. Bedoya and saw the attackers leave the scene in another taxi. He alerted the other taxi driver, Ali Mubarak, and then called the police – or, more accurately, had a friend who he was talking to on his cell phone call the police – to report the entire matter.

[13] Mr. Mubarak, in whose taxi the Defendant and his friends were passengers on the night in question, has now left Canada for his native Pakistan. He testified at the preliminary inquiry, and the transcript of this testimony was submitted by the Crown as evidence at trial under section 715(1)(d) of the Criminal Code. Defense counsel did not object to the admissibility of the transcript on this basis.

[14] Mr. Mubarak picked up the Defendant and three friends near King and Peter Streets in the early hours of May 31, 2012. Photographs from the camera inside Mr. Mubarak’s cab show the Defendant sitting in the front passenger seat in a T-shirt and Blue Jays cap. Another witness at trial and a longtime friend of the Defendant’s, Lindsey Herr, testified that she sat in the centre rear seat. Ms. Herr indicated that another mutual friend, Dustin McIntyre, sat immediately behind the Defendant next to the rear door on the passenger’s side of the car; a blond haired woman identified by Ms. Herr as Mr. McIntyre’s girlfriend, Whitney Haver, can be seen in the photographs seated in the rear seat behind the driver.

[15] A few moments after getting into the taxi, Mr. Mubarak was asked to stop and the Defendant and Dustin McIntyre quickly got out of the car. They were in a hurry to exit the vehicle; indeed, Mr. McIntyre was in such a hurry that he tried to open the back door even before Mr. Mubarak had come to a complete stop.

[16] The two men were gone a short time before coming back to the car and telling Mr. Mubarak to drive them to their destination, which was Lindsey Herr’s apartment building at 51 Lower Simcoe Street. Mr. Mubarak did not know why the two male passengers had exited the taxi for that brief interlude, and did not see where they had gone.

[17] Meanwhile, another taxi driver, Iftikhar Butt, was driving by in his empty cab northbound on Peter Street toward King. When he was just past Mercer Street, Mr. Butt saw three men standing in a row on the sidewalk on the east side of Peter Street facing west. As he passed by them, Mr. Butt saw one of the men – the one on the left side, a thin white male about 5’7” and wearing a red T-shirt – suddenly turn and push the man in the middle to the ground. Mr. Butt described the attack as a sudden, hard push to the chest causing the man in the middle to hit the sidewalk where they were walking. The other man – the one on the right side who did not do the pushing – was wearing what Mr. Butt described as a white T-shirt.

[18] Mr. Butt testified that the man who was pushed “fell down and hit the curb to the head.” According to Mr. Butt, the street where the incident occurred was partially lit. The three men were about 20 feet from the intersection of Peter and King Streets, where there was street light. Mr. Butt stated that since he had no passengers he was going slowly – about 20 km/hour – and that he had good visibility.

[19] After being pushed, Mr. Butt saw the man who fell lying still on the ground with blood coming out of his nose. As Mr. Butt recalled it, the body was in the right lane of the street and his head was on the sidewalk. He could not quite explain how the man came to lay at that angle if he was walking on the sidewalk just a few seconds before, but that is how he reconstructed the scene as he saw it from his moving car.

[20] Mr. Butt saw the two men run up Peter Street to the intersection and turn right on King. Mr. Butt was on the phone with his friend Zahid Ali, and immediately asked him to call 911 for an ambulance and police.

[21] Since Mr. Butt had been anticipating turning left when he reached King Street, he was in the left lane as he passed by Mr. Bedoya lying on the right side of the road. He testified that he made a left turn onto King Street and quickly made a U-turn so that he could see where the two men who ran away were going. He saw them get into a taxi that was standing in front of the Hyatt hotel. He identified the taxi as Ambassador cab, No. 783, and began chasing that taxi in an effort to signal to the driver.

[22] When he was behind the Ambassador taxi, Mr. Butt signaled to the driver – who turned out to be Mr. Mubarak – by honking his horn. He then rolled down his window so they could speak when their cars were alongside each other at a red light. At that point they had turned southbound onto Simcoe Street.

[23] Both Mr. Butt and Mr. Mubarak are originally from Pakistan, and so Mr. Butt spoke to Mr. Mubarak in Urdu so that the passengers would not understand. He explained to Mr. Mubarak that he had seen his passengers attack a pedestrian, and that the police wanted to know where he took them. In Mr. Butt’s words, he told Mr. Mubarak that, “this is a police matter, and watch where they’re going because they pushed the people.”

[24] The light then turned green. Mr. Mubarak went straight south, and Mr. Butt made a left turn onto Front Street.

[25] Shortly thereafter, Mr. Butt saw Mr. Mubarak’s car again a few blocks away, at Bremner Blvd. and Lower Simcoe, and by this time Mr. Mubarak’s taxi was empty. The building he was in front of was 51 Lower Simcoe. Mr. Butt saw two men and two women going into the building. He described the males as one wearing a red T shirt and the other wearing a white T shirt. They were the same men he had earlier seen pushing Mr. Bedoya to the ground. He had not seen the two women previously.

[26] Another taxi driver then stopped Mr. Mubarak and told them that the police were looking for him. Mr. Mubarak and Mr. Butt both gave statements to the police as to what they had seen.

III. The Defendant’s friend

[27] One of the two women that accompanied the Defendant and Mr. McIntyre in the taxi that night, Lindsey Herr, testified that she has known both men for many years and that they all grew up together in Little Britain, Ontario. Ms. Herr described May 30-31, 2012 as a night in which she and her friends were celebrating nothing in particular – “summertime”, as she put it. The get together started early in the evening at her apartment at 51 Lower Simcoe and, after some bar hopping and much drinking, ended up after midnight at The Underground and, eventually, back at her apartment.

[28] Ms. Herr remembered being in The Underground that night. When asked whether she had seen Mr. Bedoya there, she said that she did not recall seeing him. She pointed out that her friends “were all spread out” at the club. She testified that she could recall sitting in the taxi after leaving The Underground, but that she could not recall how they had gotten the taxi or where exactly they flagged it down. Ms. Herr indicated that she was intoxicated at the time and that her memory was foggy.

[29] Ms. Herr did remember, however, that she shared the taxi with three people: the Defendant, Dustin McIntyre, and Whitney Haver. She also recalled that shortly after they entered the cab, the Defendant and Mr. McIntyre had exited the automobile. As she put it, “I remember stopping and Dave and Dustin jumped out,” but she did not recall any discussion of why they had jumped out of the cab.

[30] She stated, albeit somewhat tentatively, that she thought they had gotten out of the cab on King Street. She testified that they were gone only a very short time before coming back and telling the taxi to go to 51 Lower Simcoe.

[31] Ms. Herr and her sister, Laura Herr, appear to have hosted the ongoing party at the apartment at 51 Lower Simcoe that night. She was shown several photos from the security camera in the lobby of the building, and confirmed that at 2:13 a.m. on May 31, 2012 she can be seen entering the building together with Ms. Haver. A few minutes later, at 2:16, the security photos show the Defendant and Mr. McIntyre entering the building, with the Defendant wearing a red T-shirt and Mr. McIntyre wearing a white and black plaid or checkered shirt.

[32] In general, Ms. Herr was a difficult witness. Given what she described as her state of intoxication on May 31, 2012, it is perhaps understandable that her recollection of the night is weak. At certain points, however, Ms. Herr gave the impression that her intoxication was more of a shield against both counsels’ questions than a sword cutting through her memory.

[33] When asked, for example, whether she has spoken with Dustin McIntyre since the incident in question, she responded curtly “at some point”. In response to questions by the Crown she claimed to remember nothing about being back in her apartment after the taxi ride except for the fact that there had been noise complaint by a neighbor; the testimony of the police officers and of the Defendant himself made it clear, however, that she was very much involved with the interaction with the police officers who came to the apartment.

[34] Ms. Herr did recall that the police had twice knocked on the apartment door that night (or, rather, early morning). The first time she answered the door together with her sister, and spoke with the police out in the hallway. She also recalled that the second time the police knocked they came into the apartment. According to one of the police witnesses, Officer Liam Murphy, they were let into the apartment by Ms. Herr’s sister, Laura; he related that Laura had to quiet Ms. Herr down as she yelled at the police to leave.

[35] Ms. Herr testified that she was aware that the Defendant and another friend who was visiting her and who had been with them at The Underground, Randy McDowell, were arrested by the police in her apartment. Although it is clear from her own evidence and from the evidence of her yelling at the officers that she was present