Her Majesty the Queen v. Delroy Hyatt

CITATION: R. v. Hyatt, 2015 ONSC 1026

COURT FILE NO.: CR-14-10000143-0000

DATE: 20150212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DELROY HYATT

T. Schreiter, for the Crown

P. Scully, for Delroy Hyatt

HEARD: February 9 and 10, 2015

THORBURN J.

REASONS FOR JUDGMENT

I. THE CHARGES

[1] Delroy Hyatt is charged with:

i. robbing Shari Robbins contrary to section 344 of the Criminal Code, R.S.C., 195, c. C-46;

ii. assaulting Shari Robbins causing her bodily harm, contrary to section 267 (b) of the Criminal Code;

iii. threatening to cause death to Shari Robbins contrary to section 264.1(1)(a) of the Criminal Code;

iv. failing to comply with the probation order of Nakatsura J. dated May 6, 2011, not to carry a weapon, contrary to section 733.1 of the Criminal Code; and

v. failing to comply with the probation order of Nakatsura J. to keep the peace and be of good behavior, contrary to section 733.1 of the Criminal Code.

[2] Robbery is theft accompanied by violence or the threat of violence. Section 322 of the Criminal Code provides that:

322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

[3] The Crown advised in his closing submissions that the accused in this case is charged under Section 343 (1)(d) of the Criminal Code. In section 343(1)(d) robbery is defined as stealing “from a person while armed with an offensive weapon or imitation thereof.”

[4] An intention to steal must be the purpose of, and accompany, the violence before or at the time of a theft or otherwise in connection with it.[^1] One who inflicts violence during the commission of a theft, immediately before or immediately after, whatever the motive prompting its infliction, is guilty of robbery.[^2]

[5] Where the theft is completed before the threat of violence, it cannot be said that the threat was used to prevent or overcome resistance to the stealing.[^3]

[6] An assault causing bodily harm is the intentional application of force that causes harm to the victim.

[7] Uttering a death threat is to knowingly utter, convey or cause any person to receive a threat to cause death to any person. Uttering a threat to cause bodily harm is a lesser and included offence to the charge of uttering a death threat. The essence of both offences is uttering a threat and intending to intimidate.[^4]

II. THE ISSUES

[8] The issues in this case in dispute are:

(a) did Delroy Hyatt rob Shari Robbins on September 21, 2013?

(b) did he strike Shari Robbins with a hammer many times, causing her serious injury on September 21, 2013? and

(c) did he threaten to kill her on October 17, 2013?

[9] If Delroy Hyatt struck Shari Robbins with a hammer causing her serious injury, it is agreed that he was in breach of his probation order to abstain from owning, possessing or carrying a weapon.

[10] If Delroy Hyatt committed any of these three offences, it is agreed that he was in breach of his probation order to keep the peace and be of good behaviour.

III. HOW TO INTERPRET THE EVIDENCE

Burden of Proof

[11] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of each offence beyond a reasonable doubt.[^5] This standard is closer to certainty than probable guilt.[^6]

The Process to be Followed Where an Accused Chooses to Testify

[12] Where the accused chooses to testify, he must be acquitted if his evidence is believed. If there is a reasonable doubt as to his guilt he must be acquitted. If the Defence evidence is not believed, the evidence as a whole that is accepted must establish that there is no reasonable doubt as to his guilt.[^7]

[13] The accused’s evidence must be assessed in the context of the evidence as a whole.[^8] The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is presented that contradicts the accused’s evidence, that evidence may no longer be believable, or may no longer raise a reasonable doubt.[^9] Both credibility and reliability of the witnesses must be assessed.

Determining the Reliability and Credibility of Evidence

[14] A trier of fact must pay particular attention to serious inconsistencies in the account, as well inconsistencies between present testimony and prior accounts.[^10] A credibility assessment of the Complainant’s evidence need not confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account.[^11]

[15] The existence or absence of a motive by the Complainant to fabricate is a relevant factor to be considered[^12]although the burden of proof is upon the prosecution and an accused need not prove a motive to fabricate on the part of a principal Crown witness.

[16] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence.[^13] A guilty verdict may be founded on the evidence of a single witness[^14] where that evidence constitutes the bulk of the testimony on that issue.[^15]

[17] Assessing credibility is not a science. The degree of detail required in explaining findings on credibility may vary.[^16] Caution is to be exercised in assessing demeanour. Assessment of demeanour can be used in conjunction with the assessment of all of the evidence.[^17]

IV. ANALYSIS OF THE EVIDENCE

[18] Both Shari Robbins and Delroy Hyatt agree that on the evening of September 21, 2013,

(a) Shari Robbins allowed Delroy Hyatt (whom she knew as Chucky) and his female friend to come to her apartment at 18 Grenville Avenue, Toronto;

(b) Delroy Hyatt asked her for $130 and she lent it to him;

(c) Delroy Hyatt stayed there for some time;

(d) Delroy Hyatt was there when Shari Robbins was viciously assaulted with a hammer causing her to suffer serious injuries to her body and post concussive syndrome; and

(e) On September 21, 2013, Delroy Hyatt was subject to an order by Nakatsura J. to keep the peace and be of good behavior and not to be in possession of any weapon.

Hyatt’s Testimony

The Incident on September 21, 2013

[19] Because Mr. Hyatt chose to testify, I must begin with a review of his evidence.

[20] Delroy Hyatt testified that Ms. Robbins was a drug addict who used to call him every day for drugs. Late on September 21, 2013, Shari Robbins came down from her apartment to meet him as she was looking to get crack cocaine. He and his female friend went up to Ms. Robbins’ apartment and his female friend gave Ms. Robbins $40 worth of crack cocaine. She got high and they talked and talked.

[21] Mr. Hyatt says Ms. Robbins lent him $130. She never asked for the money back.

[22] Mr. Hyatt testified that he and his female friend, Ms. Robbins, Puff and two other men were in the apartment. He told Ms. Robbins she would have to stop robbing people or she would get “messed up”.

[23] He went into her son’s bedroom with his female friend for about 45 minutes. He left to go to the bathroom and when he came out of the bathroom Mr. Hyatt says he saw “Puff” beating Ms. Robbins up with a hammer. There was blood all over the house. He didn’t know what the problem was but he did not want to be in trouble so he and his friend left and went to McDonald’s.

[24] Mr. Hyatt denies he was angry with Ms. Robbins or that he ever hit her.

[25] He realized he had left his identification in the apartment and sent his female friend to go back and get it but they wouldn’t open the door as there was “a big commotion” in the house.

[26] Mr. Hyatt testified that the only other time he saw Ms. Robbins after that date was in Moss Park. His friend approached her in the park and asked why she was doing this to Chucky. He told his friend not to talk to her.

Telephone Call on October 17th

[27] Mr. Hyatt denies he made a three way call to Ms. Robbins or that he threatened Ms. Robbins.

[28] After his mother advised him that police had come to his house looking for him and after he had seen his picture as someone wanted by police, he turned himself in to police.

Mr. Hyatt’s Relationship with Puff

[29] Mr. Hyatt testified that he was in a remand centre cell with Puff after being arrested on these charges. Mr. Hyatt says he asked to be in a cell with Puff although he saw Puff beat Ms. Robbins with a hammer. During the two days they were together, he says he never found out what Puff’s real name was and never heard the jail guard use Puff’s real name.

[30] Mr. Hyatt testified that Puff is a tall black man with a black chip on his front tooth and a receding hairline. They are smoking buddies.

[31] No information was provided as to Mr. Hyatt’s effort to obtain Puff’s whereabouts.

[32] Mr. Hyatt admits he has a lengthy criminal record dating from 1998 to the present. Mr. Hyatt does not believe a judge ever asked him if he committed any of the offences.

[33] Mr. Hyatt claims he did not commit 95% of the offences he pleaded guilty to. He testified that it was “just a good deal so I pleaded to it.”

[34] Mr. Hyatt’s criminal record contains more than ten convictions for failing to comply with court orders.

Analysis of Mr. Hyatt’s Testimony

[35] I did not find Mr. Hyatt’s account to be believable nor did it leave me with any reasonable doubt as to his guilt.

[36] His account of the incident on September 21, 2013 was bald: there was no explanation for the attack, there was no clear account of what happened, why Puff did what Mr. Hyatt says he did, who Puff was, or where he is now.

[37] Mr. Hyatt’s assertion that,

(a) he asked to be in the same cell as the man who had committed the crime he was accused of,

(b) he did not speak to Puff about what happened to Ms. Robbins, and

(c) he took no steps to ascertain Puff’s real name or his whereabouts when it could serve to exonerate him,

is not believable.

[38] Moreover, Mr. Hyatt’s account of what happened on September 21, 2013 was given for the first time at trial. No explanation was provided for the failure to provide this information to the Crown before trial. Given the significance of Puff to Mr. Hyatt’s defence, Mr. Hyatt’s failure to take any steps to ascertain Puff’s whereabouts is consistent with the Crown assertion that he does not exist, and reflects poorly on Mr. Hyatt’s credibility.[^18]

[39] Moreover, Mr. Hyatt’s evidence on other issues was not credible: for example, he claims he does not believe he was ever asked by the court if he committed any of the numerous entries on his criminal record and he asserts that he did not commit 95% of those crimes although he pleaded guilty to many of them.

[40] Finally, he asserts that although Ms. Robbins is his “buddy” and he had no animosity toward her, he made no effort to help her after she had been struck with a hammer many times and was seriously injured.

[41] Moreover, Mr. Hyatt’s assertion that he took no part in a three way call in which Ms. Robbins says she was threatened, is belied by Ms. Robbins’ assertion to the contrary and Officer Leal’s testimony that he received a frantic call from Ms. Robbins shortly thereafter and that she was terrified and sobbing.

[42] Given that I do not find Mr. Hyatt’s testimony to be credible or reliable and it does not raise a reasonable doubt as to his guilt, I must review the evidence as a whole.

Ms. Robbins’ Testimony

[43] Ms. Robbins admits that at the time she was taking methadone and battling drug addiction.

The September 21, 2013 Incident

[44] Ms. Robbins testified that as of the day in question, she had known Chucky for about six months and had seen him about six times before the day of the incident.

[45] On September 21, 2013, Ms. Robbins took her methadone in the morning. Mr. Hyatt arrived at her apartment with a young female whom she had never met. He brought crack cocaine with him and she smoked a very small amount of crack before Mr. Hyatt went into her son’s bedroom. Ms. Robbins denies she was actively looking for crack cocaine that evening.

[46] Before going into the room, Mr. Hyatt told her he needed money and would work to get money so he could pay her back. He told her it wouldn’t take him long to make the money back. He said he needed it for “work” which she understood to be drugs. She understood “not long” to mean hours because a friend could give him the money.

[47] Ms. Robbins lent him $130. She says she understood that her interest on the loan was to be a small quantity of crack cocaine. Ms. Robbins did not communicate her understanding that Mr. Hyatt would pay the money back the same day to Mr. Hyatt.

[48] Mr. Hyatt and the young female then went into her son’s bedroom for about three hours. Ms. Robbins became frustrated and knocked on the door. He told her to “fuck off”. She gave them some time to “get decent” and then returned and knocked again.

[49] She asked why he was not going to work and told him she wanted her money back. She says Mr. Hyatt threw $10 at her and said, “Take that bitch”. She thought that was disrespectful and said if he was going to be like that it was time to leave. Mr. Hyatt was aggressive and angry.

[50] As she was asking him to leave, she tried to move everything because he was crazy. She went into the bedroom and took a Rubbermaid container to move it as it contained hammers and other tools she had used when she was a carpenter.

[51] He got hold of the hammer and said, “Who do you think you’re talking to bitch? Who do you think I am?” He then smashed the hammer against her head several times. She begged him to stop and after he started hitting her, she doesn’t remember saying anything.

[52] She was in the corner of the bedroom beside the bed. Her blood was on the wall and floor. At first she didn’t feel anything as her adrenalin kicked in. She heard the girl say, “You’re going to kill her”. Ms. Robbins testified that she placed her arms around and over her head and begged Mr. Hyatt to stop hitting her. After he started hitting her she doesn’t remember saying anything. Mr. Hyatt tried to pry her arms open. She testified that he hit her hard a bunch of times.

[53] Ms. Robbins testified that the first time he hit her she was standing. She was then on the ground with her arms around her head, trying to protect her head. She has scars on her arms, legs and head and suffered a serious concussion. Her legs and eyes were swollen. Pictures of her many serious injuries were entered as exhibits at trial.

[54] Ms. Robbins does not remember the girl doing anything. She says that a couple of times the girl said they should go.

[55] Ms. Robbins testified that Mr. Hyatt left his health card on the table.

[56] At some point she tried to call police but Mr. Hyatt broke her cellular telephone. Shortly thereafter, they left. Ms. Robbins estimated that the incident lasted about a half hour although she was not sure.

[57] She heard sirens and thought she was dying. She wanted to run after them but couldn’t. She got to the hall area and at the bottom of the stairs she found the hammer she had been hit with. It was full of blood. She wrapped it in a towel. When she got out in the hall, a lot of neighbours were out to see what was going on.

[58] She went back to her apartment and called Children’s Aid Society to tell them she was in no condition to attend a visit with her child. The Children’s Aid Society worker said she did not sound alright and called police.

[59] The next thing she remembers is being in hospital doing a CT Scan.

The Telephone Call on October 17, 2013

[60] On October 17, 2013, Ms. Robbins says she received a telephone call from “Butter”. Butter is the street name used by an acquaintance of hers. Butter told her that she had to resolve her difference with Chucky and should not go to the police or court. He told her that Chucky could have her shot as he had a gun. He told her that, “You and Chucky are friends and should sort this out.” She replied that if he were a friend he would not have done this to her. Butter replied that if she went to court he wouldn’t be able to protect her any more.

[61] Chucky then entered the discussion and said they could sort this out. She explained the extent of what he did to her and he then started to get rude. He said he was not the only one with a gun and could get her shot. He told her not to show up for court.

[62] She contacted Officer Jason Leal and told him about this incident as he had helped her a great deal through this ordeal. She met Officer Leal in a coffee shop when the event was fresh in her mind. He wrote things down and gave her a copy of her statement.

[63] She identified Chucky from the health card that was left in her apartment.

[64] Ms. Robbins testified that the next interaction she had was when she saw Mr. Hyatt in Moss Park a few weeks later. She says Mr. Hyatt was with a bunch of people. He began to say threatening things to her so she held up her phone. He asked, “You’re going to call the police you fucking rat?”

[65] She says she was threatened on a regular basis through third parties who told her not to come to court.

[66] Mr. Hyatt has not returned the money he borrowed from her.

Testimony of Jason Leal

[67] Officer Leal testified that he attended Mr. Hyatt’s home on October 17, 2013 at approximately 6:25 p.m. Mr. Hyatt was not at home but his mother was there.

[68] At 7:55 p.m. that evening, Officer Leal received a telephone call from Ms. Robbins. She was terrified and sobbing. She told him she had received a telephone call from Chucky, he threatened her and told her she would get shot. The telephone number he used was a private caller ID number.

Analysis of the Crown Evidence

(i) Robbery

[69] On the facts before me, it is agreed that Ms. Robbins lent Mr. Hyatt $130 of her own free will. She gave a believable account of why she lent money to Mr. Hyatt and what her expectation was.

[70] The money was lent on the understanding that her money would be returned and she would be given a small amount of drugs. Ms. Robbins says the money was to be returned in short order. More than three hours later the monies had not been returned. No specific timeframe was given for return of the money although Ms. Robbins says she understood it could have been returned that night.

[71] Mr. Hyatt was not asked what effort he made while in the bedroom to get drugs to enable him to return Ms. Robbins’ money. The night was not yet over.

[72] Ms. Robbins asked for the return of her money. Mr. Hyatt threw $10 at her and has not returned the rest of her money.

[73] Given that

(a) the money was freely given to Mr. Hyatt by Ms. Robbins hours before the altercation,

(b) Ms. Robbins did not transfer funds to Mr. Hyatt by mistake,

(c) the money was not taken by fraud,

(d) it was a loan,

(e) there was no specific time of repayment, and

(f) it is not clear that the violence that ensued was specifically related to the return of the money rather than the fact that Mr. Hyatt was being ejected from the apartment,

I am not satisfied beyond a reasonable doubt Mr. Hyatt intended to steal from Ms. Robbins.

[74] Mr. Hyatt’s actions may be in breach of his agreement with Ms. Robbins to repay the loan, but they do not constitute robbery.

(ii) Assault Causing Bodily Harm

[75] As is evident from her account of the events set out above, Ms. Robbins’ account of the incident on September 21, 2013, was clear, compelling and detailed.

[76] She and Mr. Hyatt both testified that Mr. Hyatt was a casual friend, that she has never had a romantic interest in him, that he occasionally supplied her with drugs in exchange for staying with her and that she had no bad feelings toward him. Ms. Robbins had no motive to wrongly accuse Mr. Hyatt of assaulting her with a hammer and threatening her.

[77] She candidly admitted that at the time she suffered from a drug addiction and had consumed a small amount of crack cocaine that evening. She testified that the effect had worn off long before the altercation.

[78] Her account explains why she was upset with Mr. Hyatt, what happened and how the events unfolded. Her demeanour was forthright and compelling. There were no material inconsistencies between her testimony at trial and her account at the Preliminary Inquiry.

[79] This account is in stark contrast to Mr. Hyatt’s bald account of Puff (whom Ms. Robbins was never asked about).

[80] Mr. Hyatt left his health card in the apartment and it was only this that enabled Ms. Robins to identify Mr Hyatt as she knew him only by his street name.

[81] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Hyatt assaulted Ms. Robbins with a hammer resulting in serious injuries.

(iii) Uttering a Death Threat

[82] For the same reasons, I am satisfied beyond a reasonable doubt that Mr. Hyatt (or Chucky) participated in a three way call to Ms. Robbins where he said he was not the only one with a gun and could get her shot. He told her not to show up for court.

[83] The Crown concedes that this does not amount to a death threat although it is a threat to cause bodily harm which is a lesser included offence. I therefore find Mr. Hyatt guilty of uttering a threat to cause Ms. Robbins bodily harm.

(iv and v) Breaches of a Court Order

[84] I am satisfied beyond a reasonable doubt that Mr. Hyatt assaulted Ms. Robbins with a hammer. Given that it is agreed that at the time, Mr. Hyatt was subject to a court order to have no weapons and to keep the peace, Mr. Hyatt is guilty of breach of this order in two respects: he did not keep the peace and be of good behavior and he was in possession of a weapon.

V. CONCLUSION

[85] For the above reasons, I find Mr. Hyatt:

i. not guilty of robbing Shari Robbins contrary to section 344 of the Criminal Code, R.S.C., 195, c. C-46;

ii. guilty of assaulting Shari Robbins causing her bodily harm, contrary to section 267 (b) of the Criminal Code;

iii. not guilty of threatening to cause death to Shari Robbins contrary to section 264.1(1)(a) of the Criminal Code but guilty of the lesser included offence of threatening to cause harm to Shari Robbins;

iv. guilty of failing to comply with a probation order made on May 6, 2011 by S. Nakatsura J. not to carry any weapons contrary to section 733.1 of the Criminal Code; and

v. guilty of failing to comply with the probation order to keep the peace and be of good behaviour contrary to section 733.1 of the Criminal Code.

Thorburn J.

Released: February 12, 2015

CITATION: R. v. Hyatt, 2015 ONSC 1026

COURT FILE NO.: CR-14-10000143-0000

DATE: 20150212

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DELROY HYATT

REASONS FOR JUDGMENT

Thorburn J.

Released: February 12, 2015

[^1]: R. v. Lieberman 1970 CanLII 393 (ON CA), [1970] 5 C.C.C. 300 (Ont. C.A.) Jessup J.A at pp. 308-309.

[^2]: R. v. Downer [1978] 40 CC.C.C. (2d) 532 Martin J.A. at paras. 27 and 28.

[^3]: R. v. Daughma, [1989] O.J. No. 1765 (Ont. C.A.) Goodman J.A. at p. 2.

[^4]: R. v. Grelette 2005 CanLII 32206 (ON SC), [2005] O.T.C. 776 at para. 15 (S.C.J.) Garton J.

[^5]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 13.

[^6]: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242..

[^7]: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409.

[^8]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.).

[^9]: R. v. Hoohing, (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.); and R. v. Campbell (2003), 2003 CanLII 48403 (ON CA), 57 W.C.B. (2d) 363 (Ont. C.A.).

[^10]: R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Sanichar, 2012 ONCA 117 at para. 51.

[^11]: Kehler v. The Queen , (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; Regina v. Betker, (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 per Moldaver J.A. (leave to appeal refused [1998] 1 S.C.R. vi); Regina v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458 at 459.

[^12]: The Queen v. K.G.B., (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at paras. 2-8; Regina v. K.(A.), supra at 173; Regina v. M.(W.M.), [1998] O.J. No. 4847 (C.A.) at para. 3; Regina v. Jackson, [1995] O.J. No. 2471 (C.A.) at paras. 4, 5.

[^13]: Regina v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 44.

[^14]: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439 at 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.) at 8.

[^15]: Regina v. Chittick, 2004 NSCA 135, [2004] N.S.J. no. 432 (C.A.) at paras. 23-25

[^16]: R. v. Dinardo, at para. 30.

[^17]: R. v. Boyce 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 at para. 3.

[^18]: R. v. Bristol [2011] ONCA 232 at paras 20-22.