ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-5022
DATE: 2015/10/20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Floyd Quincey Herbert

Accused

John Semenoff, for the Crown

Israel Gencher, for the Accused

HEARD: June 1, 2, 3, 4 and July 16, 2015

REASONS FOR Decision

R. Smith J.

[1] The accused, Floyd Herbert, is charged with a number of counts resulting from two separate incidents, the first on January 23, 2014 and the second incident on February 3, 2014. As a result of the first incident, the accused was charged with assault with a weapon, and breaching four of his conditions of recognizance. He is alleged to have had a dispute with 3 young Somali men at the complainant’s apartment, waved a butcher knife at the complainant, and chased the three young Somali men from the complainant’s apartment sometime after 1:00 a.m. The breaches of his recognizance conditions relate to having possession of a Scheduled substance, breaching his 11:00 p.m. curfew, possessing a weapon, and consuming alcohol.

[2] During the second incident, the accused is alleged to have assaulted the complainant, threatened to cause her bodily harm, threatened to kill her dog, unlawfully entered her apartment and sexually assaulted her.

[3] The accused denied the allegations related to the January 23, 2014 incident, other than admitting to having consumed alcohol and crack cocaine and being away from his apartment after 11:00 p.m. He denied ever possessing a butcher knife. The accused admitted that he had sexual relations with the complainant on February 3, 2014 but testified that the complainant consented to have sex with him in return for crack cocaine. He denied assaulting the complainant, threatening to cause bodily harm to her; threatening to kill her dog and unlawfully entering her apartment.

[4] The issues to be decided are whether the Crown has proven the essential elements of each of the above offences beyond a reasonable doubt.

[5] In R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out the approach to be followed. I must also assess the credibility of the witnesses by assessing their honesty and reliability.

FACTS

[6] W.F., the complainant in this matter, resides at […] in the city of Ottawa. The complainant testified that she has lived at this address for approximately 17 years. She is now 62 years of age, and she has been on a disability pension for six years. She lives on the fourth floor of a five storey apartment building. She has a 13 year old dog named Joey.

[7] The complainant admitted that she allowed her apartment to be used as a safe house for individuals to consume crack cocaine. In return for allowing individuals that she knew to use her apartment they would provide her with a “host toke”. She allowed three to four of her friends, to come to her apartment, at different times on a regular basis. She testified that she did not allow complete strangers into her home but she didn’t always know the last names of the individuals who came to her apartment.

[8] The complainant testified that she had known the accused for approximately two months before the incidents on approximately January 23, 2014 and on February 3, 2014. She testified that she had met him approximately 15 times prior to the events for which he is charged. Approximately one month after she first met the accused, the complainant became aware that he lived with his wife Jane on the second floor of her apartment building.

[9] The complainant lives in a subsidized apartment and receives $750 per month for food and other expenses. She admitted that she is addicted to crack cocaine and she has been using crack cocaine for 10-12 years. The complainant testified that the accused was also a crack cocaine addict and came to her apartment on a number of occasions with other individuals to smoke crack cocaine.

The January 23 incident

[10] The complainant testified as follows about the events that occurred during the evening and early morning of January 23, 2014:

(a) Three young men, between the ages of 19 and 24, asked her if it was ok if they slept over at her apartment. She agreed to allow them to stay overnight. The complainant testified that the names of the three young men were Rick, Nokey and Will. She knew where they lived but did not know their addresses.

(b) Later that evening, she heard a loud banging on her door and knew it was the accused. She recognized his knocking because it was loud and insistent. He wouldn’t stop banging on her door and so she allowed him to enter.

(c) When the accused entered her apartment, he had a large bottle of liquor with him and a little package of drugs which she recognized as crack cocaine. The accused consumed the drugs and was consuming the alcohol when she went to her bedroom. The accused stayed for approximately an hour on this occasion and then went downstairs and came back a few minutes later with another large bottle of alcohol.

(d) The accused was quite drunk and got into a dispute with the three young men. During the dispute, he banged his cell phone on the floor. Mr. Herbert accused the young men of laughing at him and felt he was being ridiculed. He then went to the kitchen and returned with a large knife in his hand and threatened the three young men by waving the knife at them.

(e) The complainant came out of her bedroom and the accused turned around and made a sweeping sideways motion towards her holding the butcher knife and the young men ran out of her apartment and down the stairwell. The accused chased after them. The complainant then closed the door and locked it.

(f) The complainant observed that the accused had left his cell phone in her apartment and one of the young men left his shoes and a coat in her apartment. She returned to bed and then after a short time, she heard the accused knocking loudly and trying to break down her door. She told the accused to get away from her door and told him that she was calling the police. She testified that she would not allow him back into her apartment because she was afraid of the accused. Subsequently, she observed a crack on her door and two screws were missing. Her door was not in that condition before the accused banged on her door that morning.

[11] The accused’s description of the events that evening is very similar to the complainant’s version with the exception that he denied getting a knife and threatening anyone with it, denied ever swinging the knife towards the complainant, and denied having chased the three young men out of the apartment and down the stairwell.

[12] The accused testified that he was the one who was attacked by the other three young men but said he didn’t react angrily. The accused testified that when he returned to the complainant’s apartment, he found that her door was locked and she refused to let him re-enter her apartment. He denied that he was angry at this situation and denied acting angrily by banging on the door or attempting to break her door down.

[13] The complainant’s evidence was very believable when she testified that the accused banged on her door in an angry manner when she refused to open the door when the accused returned to re-enter her apartment. The police officer observed cracks in the complainant’s apartment doorframe after the alleged incident, which is consistent with the complainant’s evidence and not consistent with the accused’s evidence. The accused was intoxicated that night, had smoked cocaine and has a history of violence. I find his testimony that he was not angry about being denied entry into her apartment in those circumstances, especially when he had left his new cell phone in her apartment, to be unbelievable, as it does not accord with the preponderance of probabilities to an informed person.

[14] The complainant acknowledged that she did not identify the three young Somali men to the police, and agreed that they could have provided very relevant evidence, as they were allegedly involved in a dispute with the accused and were chased by the accused who was alleged to be armed with a knife. Their evidence could have corroborated the complainant’s evidence but this evidence was not available at trial.

[15] The accused agreed with the complainant’s evidence that he met her sometime in December of 2013 and went to her apartment on many occasions to smoke crack cocaine. He also confirmed the complainant’s evidence that often there were two or three other individuals present, smoking crack cocaine in her apartment.

[16] The accused was released from jail in December of 2013, on conditions, including a condition that he reside with his ex-wife who agreed to be his surety, that he refrain from consuming alcohol, refrain from possessing any Scheduled narcotics, and to respect a curfew of 11:00 p.m. The accused agreed that he had an extensive criminal record which he blamed on his addiction to crack cocaine.

[17] The accused testified that when he entered the complainant’s apartment on about January 23, 2014, three young men were present, at least one of whom was “a white guy”. He testified that he had a 26 ounce bottle of Captain Morgan rum and he agreed to give the complainant a toke of crack cocaine. He testified that they ordered pizza and ate chicken wings, and he stayed at her apartment until three or four o’clock in the morning. He testified that one of the individuals left to do a delivery and one of the other young men attacked him, nothing dramatic, just with their hands. He then testified that he ran out of the apartment.

[18] He testified that when he left the complainant’s apartment after he was attacked, he became afraid that one of the three young men may have broken into his apartment and that his kids and wife might be in danger so he went to check on them and then came right back. He testified that he smoked four grams of cocaine that evening and consumed 2 tall boy beers and a 26 oz. bottle of liquor, which was shared with four people.

[19] When he returned to the complainant’s apartment after going to check on his wife and children, there was no answer when he knocked at the door. He stated that he just decided to chill and relax and go back home because he was being flown to Halifax to testify in a murder trial that morning around 8:30 a.m. He testified that he only discovered that he didn’t have his cell phone when he arrived at the airport later that morning.

[20] The surveillance tapes of the front lobby of the apartment building for January 23, 2014 did not show anyone that the complainant could identify on the video. The complainant testified that no one approached her about viewing the surveillance tapes for the night in question. The complainant testified that she did not call the police about the January 23 incident because the accused knew where she lived and was going to Halifax in a day or so and she felt she would be safer not calling the police.

[21] Detective Lisa King testified that she did not observe any individuals fleeing the apartment building through the front lobby between the 20th and 26th of January, 2014 when she reviewed the surveillance tape. She acknowledged that there were other exits from the apartment building which any of the three young men could have used which would not have been captured by the camera in the front lobby.

[22] The accused denied that he ever had a knife when he came upstairs to the complainant’s apartment and denied ever swinging or chasing the three men with the butcher knife from the complainant’s apartment. The accused missed his morning flight to Halifax later that morning and the Halifax police department made arrangements for him to catch the next flight at 2:00 to 2:30 p.m. The accused was in Halifax for approximately ten days and returned to Ottawa on February 3, 2014.

(continued verbatim exactly as in the source HTML)

Justice Robert J. Smith

Released Orally: October 20, 2015

COURT FILE NO.: 14-5022
DATE: 2015/10/20

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

Floyd Quincey Herbert

Accused

(moving party)

REASONS FOR JUDGMENT

R. Smith J.

Released Orally: October 20, 2015