CITATION: R. v. Modeste, 2016 ONSC 3955
COURT FILE NO.: CR-12-70000140-0000
DATE: 20160615
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
M. Scott & R. Wright, for the prosecution
- and -
EDWIN MODESTE
A. Furgiuele, for the defence
HEARD: June 6, 7, 8, 9, 10, 13 & 14, 2016
Nordheimer J. (orally):
[1] Edwin Modeste stands charged with one count of manslaughter. It is alleged that Mr. Modeste was a party to the death of Brandon Ramdeen that occurred in the early morning hours of Sunday, June 21, 2009. This is the second trial of Mr. Modeste for this offence. His first trial, before a jury, resulted in a conviction in April 2012. Mr. Modeste successfully appealed that decision with the result that, on June 8, 2015, the Court of Appeal set aside the conviction and ordered a new trial. Pursuant to s. 686(5) of the Criminal Code, this second trial proceeded as a judge alone trial.
The evidence
[2] The basic background facts surrounding this matter have been the subject of an agreed statement of facts fairly and responsibly worked out, and agreed to, by counsel. The agreed statement of facts is especially useful in this case since the evidence of the witnesses was generally unsatisfactory for a number of reasons. Principal among those reasons is that many of the witnesses demonstrated what Crown counsel referred to as “witness fatigue”. That fatigue arises from the fact that these witnesses have given evidence in respect of these matters four, five or more times between giving statements to the police, giving evidence at various preliminary hearings and giving evidence in as many as three trials. This is one of the problems that inevitably results when a new trial is ordered on an appeal. Witnesses are asked to, yet again, relive memories that involve tragic events, often involving people that were their relatives or friends. Recounting such events places an enormous burden on any person in the first instance, but it is made all the more difficult, in the case of a retrial, by the need to repeat the process many years later. That reality leads to another problem inherent in ordering a new trial and that is the effect of the passage of time. The witnesses in this trial are now speaking about events that occurred seven years ago. Needless to say, memories are dulled and recollections are increasingly faulty. Consequently, sorting out such evidence and deciding what evidence one should place reliance on becomes even more challenging.
[3] With that preface, I turn to the background facts. On Saturday, June 20, 2009, a boat cruise took place. More than three hundred people went on this boat cruise. By all accounts, the boat cruise was a peaceful and fun event until right before its close. As the boat was docking, a dispute arose between two of the attendees – Andy James and Leon Alexander. The participants were separated and people began to leave the boat. Once out in the parking lot, the dispute resumed. Mr. Alexander approached Mr. James and a fight ensued. During the course of that fight, Mr. James was stabbed. Mr. James was taken from the scene by private vehicle and driven to a hospital for treatment. Unfortunately, Mr. James subsequently succumbed to his injuries. By whom Mr. James was stabbed has never been proven.
[4] That is about as far as one can go with the background facts before the problems with the evidence in this case start to appear. The fact is that the witnesses in this case do not agree on virtually any aspect of what then happened in the parking lot that led to a second fight. They do not agree on who was in the parking lot, what happened, where it took place, who was involved in the second fight, who did what to whom, how long it took or even whether one of the persons involved had a baseball bat. I appreciate that, in any case, different people viewing the same event will have different recollections. However, the lack of conformity between the various witnesses in this case, as to the events, is remarkable. I also note that many of the witnesses took refuge in their earlier evidence or statements whenever they were confronted with an inconsistency, even where those inconsistencies were on significant material points.
[5] One fact upon which there is consensus, however, is that, at the time of the second fight, no one saw anyone with a weapon, specifically a knife. The only exception to that consensus is Dexter Regis, who says that he saw Kimron Bengy with a knife. I place very little reliance on Mr. Regis’ evidence generally. He admitted to being untruthful in his evidence at least twice and his evidence often contradicted previous statements. As a consequence, I would be hesitant to rely on any portion of his evidence without finding corroboration of it from another source. That said, it is clear that a knife was involved in the second fight because we know that the victim, Brandon Ramdeen, died from stab wounds. And we also know that Mr. Bengy was subsequently convicted of murder for the stabbing death of Brandon Ramdeen. I would add that there can be no reasonable dispute that it was Mr. Bengy who stabbed Mr. Ramdeen. Not only is there that finding of guilt but, at this trial, Anski Julien gave evidence that Mr. Bengy essentially confessed to having done so while he and others were all in a car driving from the scene.
[6] The comments that I have made on the state of the evidence does not, of course, relieve me from the task of determining, as best I can, what happened that led to the death of Brandon Ramdeen. In that regard, I am prepared to make the following findings as to what occurred. Mr. Ramdeen was a friend of Andy James. As I have already mentioned, some short time before the second fight, Andy James had been stabbed by someone. Mr. Ramdeen believed that he knew who was responsible for the stabbing of Mr. James and he approached those people. Those people included Edwin Modeste, Anski Julien, Leon Alexander (“a.k.a. Budja”), Edmund Benjamin (“a.k.a. Shaggy”) and Kimron Bengy. I reach that conclusion from a combination of the evidence of Kenreck Williams, Eric Mitchell, Collins George and Michelle Phillip. I reject Mr. Julien’s evidence that he was not part of this group.
[7] I find that Mr. Ramdeen approached these individuals in a fairly aggressive manner, as Mr. Williams said that he did, but I also find that Mr. Ramdeen was not alone in approaching this group. As Mr. George said, he and his friends, that included Mr. Ramdeen, Mr. Regis and others, went looking for the people that they thought were responsible for the stabbing of Andy James. Mr. Regis had a baseball bat in his hand. I reject Mr. Regis’ evidence that he alone approached Mr. Modeste, asked what had happened, and then withdrew after Mr. Modeste said he did not know what Mr. Regis was talking about. That evidence is not confirmed by anyone else. Indeed, it is directly contradicted by the evidence of Kitson Robertson.[^1] It also does not accord with common sense. It does not make sense that Mr. Regis would have, alone, approached Mr. Modeste, who had others around him, only to withdraw and then have Mr. Ramdeen repeat the very same approach, also alone. It further does not make sense that either of them, but particularly Mr. Ramdeen who was unarmed, would have approached this other group alone to confront them over the stabbing of Mr. James. I note, in that regard, that Mr. Regis had armed himself with a baseball bat. He said that he did so because a friend of his had just been stabbed and he did not know what he was dealing with. Rather, I accept that a group that included Mr. Ramdeen and Mr. Regis approached Mr. Modeste and his group, albeit with Mr. Ramdeen taking the lead. As the two groups came together, I accept that Mr. Ramdeen said something to the effect of “who stabbed my brethren?” and that he did so in an angry or confrontational tone.
[8] It is at this point that a scuffle ensued between these two groups. I use the term scuffle as Mr. Julien used it. I do not accept that a fight occurred, of the type that some witnesses described, with upwards of five people on one side, and Mr. Ramdeen alone on the other side, being subjected to multiple punches and kicks. Rather, as Mr. Julien described, I accept that people were pushing and shoving and that some punches were thrown by some individuals but that other individuals tried to separate the people and limit any physical exchanges.
[9] During the course of this scuffle, Mr. Ramdeen fell to the ground. Whether he fell because he had been stabbed, or for some other reason, is unclear but the former seems the more likely explanation for his fall. I reject the evidence that Mr. Modeste and the others on his side then began punching and kicking Mr. Ramdeen while he was on the ground. I accept that, in the course of this scuffle, a punch or two may have been thrown and, perhaps, some people might have attempted to kick Mr. Ramdeen, but it is clear that no blows of any consequence landed on Mr. Ramdeen. The medical evidence regarding the injuries to Mr. Ramdeen does not support that he was subjected to such an extensive beating as described by people such as Mr. Williams, Ms. Phillips and Mr. Collins. Mr. Ramdeen had no injuries below his neck and there was no signs of kicking or punching on his back, buttocks, upper arms, forearms, legs or feet – a result that is completely inconsistent with the evidence of some of the witnesses that these men were punching and kicking Mr. Ramdeen, as they surrounded him, while he was lying on the ground.
[10] As the agreed statement of facts points out, the injuries to Mr. Ramdeen’s head are consistent with him falling to the ground, as a result of being stabbed. This is consistent with what Mr. Williams described, that is, that Mr. Ramdeen attempted to stand up but then fell face first to the ground. It is also consistent with what Curland Natoo said which is that he saw Mr. Ramdeen coming towards him and then fall face first. Further, the injuries to Mr. Ramdeen’s hands are as consistent with him fighting with the others as they are the result of defensive actions. I would also note, on this point, that those witnesses, who say that Mr. Modeste’s group was punching and kicking Mr. Ramdeen, are all unable to identify any specific person as having punched Mr. Ramdeen or kicked Mr. Ramdeen or where any of these blows connected to Mr. Ramdeen. All that they are prepared to say, in broad and general terms, is that everyone was punching and kicking with no more detail than that. Mr. Mitchell, for example, said that he did not see any blows land on Mr. Ramdeen. More particularly, none of these witnesses said that they actually saw Mr. Modeste, specifically, punch or kick Mr. Ramdeen.
[11] On this point, I should mention the prosecution’s assertion that one of the photographs taken of Mr. Ramdeen’s bloody clothes, removed by the paramedics, shows the outline of a shoe or boot. I am not prepared to make any such finding based on a photograph. For one, the mark shown in the photograph does not suggest to me that it is the outline of someone’s shoe or boot. For another, it would be a fine distinction for someone to have kicked Mr. Ramdeen with sufficient force to leave a print of their boot on his pant leg but for that same force to be insufficient to cause any bruising or marks on Mr. Ramdeen’s leg. For yet another, even if the outline is of someone’s boot, that fact is not synonymous with someone having kicked Mr. Ramdeen. Rather, it could be that someone stepped on the pants in the course of treating Mr. Ramdeen and removing him from the scene. In the end result, were I to draw the conclusion urged by the prosecution, it would be fairly challenged as being based on nothing more than speculation.
[12] To conclude on the surrounding facts, the entire struggle began and finished fairly quickly. Most of the males, who had been involved, ran away. People came to Mr. Ramdeen’s aid, but it was too late. Despite those efforts, and the subsequent efforts of emergency personnel, Mr. Ramdeen died a few hours later of the stab wounds.
The prosecution theories
[13] The prosecution’s theory of how Mr. Modeste is guilty of manslaughter depends on two different theories. One is based on the application of s. 21(1)(a) of the Criminal Code and the other is based on the application of s. 21(2). Section 21(1)(a) reads:
Every one is a party to an offence who
(a) actually commits it;
Section 21(2) reads:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[14] On the first theory, the prosecution contends that Mr. Modeste and others assaulted Mr. Ramdeen during the course of which one of those other persons, presumably Mr. Bengy, stabbed Mr. Ramdeen. Based particularly on two decisions of the British Columbia Court of Appeal, namely, R. v. Ball 2011 BCCA 11, [2011] B.C.J. No. 39 and R. v. Miazga, [2014] B.C.J. No. 2013, the prosecution says that Mr. Modeste participated in the attack on Mr. Ramdeen, in which non-trivial harm to Mr. Ramdeen was objectively foreseeable, and therefore Mr. Modeste is responsible for the death of Mr. Ramdeen at the hands of one of the other attackers.
[15] On the second theory, the prosecution says that Mr. Modeste and Mr. Bengy formed an intention in common to carry out an unlawful purpose, that is, the assault of Mr. Ramdeen. In the course of carrying out that unlawful purposed, the prosecution says that Mr. Bengy committed the offence of murder when he stabbed Mr. Ramdeen. The prosecution then asserts that Mr. Modeste knew, or ought to have known, that Mr. Bengy would stab Mr. Ramdeen and, therefore, he is guilty under the common intention or common purpose provision.
[16] In terms of the first theory, I will first say that I have serious doubts that the principle enunciated in the cases, to which the prosecution has reference, extends culpability for manslaughter as far as the prosecution would have it extend in this case. In particular, I am not convinced that the statement in Miazga at para. 15 is a correct statement of the law. The extent of that statement does not appear to find support in the authorities that are referred to in Ball, especially the decision in R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.). However, that is not an issue that I need to resolve.
[17] Even if the principle has such far reaching implications, I find that it does not attach to Mr. Modeste, in these circumstances, for two reasons. First and foremost is that I find as a fact that Mr. Modeste and the others on his side did not instigate the assault on Mr. Ramdeen. Rather, it was Mr. Ramdeen and his group who approached Mr. Modeste’s group and it was Mr. Ramdeen who instigated the confrontation, to which Mr. Modeste and the others then responded.
[18] Second, I reject the suggestion that Mr. Bengy’s use of a knife as part of this intended confrontation was, in any way, foreseeable by Mr. Modeste. Rather, I view Mr. Bengy’s actions as an intervening act, one that could not be foreseen in the circumstances. There is simply no evidence that Mr. Modeste knew that Mr. Bengy had a knife or that he knew, or should have foreseen, that Mr. Bengy would use a knife during this struggle. The prosecution says that Mr. Modeste should have foreseen this action because Mr. Robertson had told Mr. Modeste, prior to the struggle, that Mr. Bengy had stabbed Andy James. Mr. Robertson’s evidence on this point is problematic. While he did say, in chief at the first trial, that he told Mr. Modeste about Mr. Bengy stabbing Mr. James prior to the second fight, in cross-examination he acknowledged that he had told the police that he had not told Mr. Modeste about this fact until they were together in a car after leaving the parking lot. Mr. Robertson then agreed that he had been mistaken when he said in chief that he told Mr. Modeste about the stabbing prior to the second fight. The prosecution contends that Mr. Robertson only made that admission because it was his fourth day of giving evidence and he was then simply agreeing with anything that was suggested to him. I am not in a position to avoid the effect of Mr. Robertson’s evidence on that basis, especially when I did not have the benefit of seeing Mr. Robertson give his evidence – a factor that would be of some considerable importance in reaching such a conclusion.
[19] In the end result, the evidence does not establish that Mr. Modeste was involved with Mr. Bengy and others in a concerted attack on Mr. Ramdeen. Rather, I find that there was a mutual encounter, prompted by Mr. Ramdeen, in which some persons engaged in physical exchanges while others attempted to separate the participants. Indeed, given the evidence that I heard regarding Mr. Modeste’s efforts to restrain Mr. Alexander in the earlier dispute, I consider it more likely that Mr. Modeste was one of the persons trying to keep the participants apart in this second encounter. Regardless of whether that is the case or not, I find that Mr. Bengy, unbeknownst to anyone else involved, had a knife and chose, for whatever reason, to use that knife on Mr. Ramdeen. He did so entirely on his own.
[20] Based on my conclusions as to what happened in the parking lot, the prosecution’s second theory cannot succeed either. There is simply no evidence that Mr. Modeste and Mr. Bengy formed an intention in common to assault Mr. Ramdeen as opposed to both of them, along with the others, simply reacting to the confrontation instigated by Mr. Ramdeen, as I have found was the case. Further, there is also no evidence that would provide a foundation for a conclusion that Mr. Modeste knew, or ought to have known, that Mr. Bengy would stab Mr. Ramdeen. As I have already said, there is no evidence that Mr. Modeste knew that Mr. Bengy had a knife on him nor is there any evidence that Mr. Modeste knew, or ought to have foreseen, that Mr. Bengy would use that knife in the manner that he did. Consequently, neither the first nor third elements of party liability under s. 21(2) are made out in this case.
[21] In the end result, I find Mr. Modeste not guilty.
NORDHEIMER J.
Released: June 15, 2016
CITATION: R. v. Modeste, 2016 ONSC 3955
COURT FILE NO.: CR-12-70000140-0000
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
EDWIN MODESTE
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: Kitson Robertson could not be located for this trial. On consent, the transcript of his evidence from the first trial was admitted pursuant to s. 715 of the Criminal Code.