Court File and Parties

Court File No.: CR-15-30000603-0000 Date: 2016-07-14 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Michael Short, Defendant

Counsel: Beverley A. Olesko, for the Crown Robert E. Costello, for the Defendant

Heard: July 11-13, 2016

Before: E.M. Morgan J.

[1] What happens when a maximum security facility produces maximum insecurity?

[2] Michael Short was a guest of Her Majesty in Right of Ontario at the Toronto East Detention Centre on February 6, 2015, having been convicted of robbery shortly before that date. The East Detention Centre, or The East as it is often called, is a remand and correctional facility administered by the province.

[3] On the date in question, Mr. Short was attacked by another inmate while taking a stroll through the 3A East Dayroom. A third inmate served as a lookout for prison guards and waited for his friend to give him the word to stab Mr. Short with a knife he had hidden in his boxer shorts.

[4] What started as a bad day for Mr. Short, however, quickly reversed itself. Within minutes of being blindsided in a dead-end corridor, Mr. Short defended himself impressively and fought off his attackers. While a number of other inmates joined the fracas on both sides, Mr. Short reached into his sock and retrieved a makeshift weapon – a shank, or shiv made of sharpened ceramic with a handle. He can be seen on the security camera footage menacing his attackers and making lunging and stabbing motions.

[5] One of Mr. Short’s attackers ended up with lacerations across his back, while another ended up with a number of cuts and a puncture wound. Mr. Short himself ended up with a neck wound. Mr. Short has been charged with four counts: one count of assault and one count of assault with a weapon, in respect each of his two fellow inmates who mounted the attack on him.

I. The Lead Attacker

[6] The Crown subpoenaed East Detention Centre inmate Shamar Brown. In his testimony at trial, Mr. Brown conceded that he had planned and carried out the surprise attack on Mr. Short. He stated that he is a member of the Malvern gang and that he understood that Mr. Short is a member of the Galloway gang. Both of those gangs have their home bases in Toronto’s east end, and are longtime rivals. Mr. Brown testified that, as far as the Malvern members are concerned, any member of Galloway is open to being set upon and beaten, or worse.

[7] Mr. Brown indicated that he did not know Mr. Short and had never spoken with him before the date of the incident. In fact, he was not completely certain that Mr. Short was a member of Galloway – Mr. Short denies that he is a gang member. Mr. Brown had just heard this from other inmates and decided to act on it.

[8] Mr. Brown did know that he and Mr. Short were both housed in a range of the jail reserved for so-called STG (Security Threat Group) inmates, which generally means gang members. The Corrections Officers who testified indicated that they are not overly concerned about mixing members of opposing gangs in this way in a single ward or range of the prison. They are apparently more worried about the “balance of power”, and do not want any one gang to dominate any particular range.

[9] Whatever the wisdom of this policy may be, it certainly does not prevent violence in the prison. Mr. Brown testified that he hatched a plan to attack, hurt, and, if possible, kill Mr. Short because of what he believed to be Mr. Short’s affiliation. To this end, he recruited his friend, inmate Jordan Marcelle, to assist him and to carry out the actual knife attack on their victim.

[10] Mr. Brown’s plan was to pick a fight with Mr. Short when the Corrections Officers were not looking, and to signal to Mr. Marcelle to stab Mr. Short at the appropriate moment. Mr. Brown also indicated that he had recruited his cellmate to assist him in fighting Mr. Short. He also would have expected other Malvern members and allies to join the fray once it began – which the security camera shows is precisely what happened. There were at least half a dozen inmates involved in the fight once it got underway. Some of them appear to have been on Mr. Brown’s side while others appear to have been on Mr. Short’s side.

[11] According to Mr. Brown, most of the inmates at Toronto East Detention Centre are armed with weapons of one form or another. He indicated that he did not have a weapon on him himself at the time of the fight. Instead, he relied on Mr. Marcelle to come in with a knife and do the stabbing of Mr. Short.

[12] Mr. Brown was, however, prepared for his performance. He can be seen in the security video taken that day wearing long, protective sleeves made of heavy material to prevent lacerations and other wounds on his arms from the kinds of sharp objects often wielded by inmates. After a throwing several punches at Mr. Short and catching him by surprise, Mr. Brown shouted, “Stab him, stab him!” This was his signal to Mr. Marcelle to move in with the knife and do as much damage to Mr. Short as possible.

[13] Mr. Brown himself was stabbed and cut in several places during the fight, and required hospitalization and stitches. When specifically asked who injured him, he said that he does not know. Although the security camera shows Mr. Brown and Mr. Short fighting the most, it was a crowded corridor and a tight spot with a number of inmates going at each other.

[14] The security camera also shows that Mr. Brown started the entire melee by punching Mr. Short when he was not looking. It also shows that Mr. Brown ended the near-riot by accosting yet another inmate in the area of the bathroom near the 3A East Dayroom after the Corrections Officers had already separated him from the main pack of fighting inmates and had the situation nearly under control.

II. The Second Attacker

[15] The Crown also subpoenaed Jordan Marcelle. The security video shows Mr. Marcelle standing as if on guard just before the fight broke out, ensuring that the area of the planned attack is clear of C.O.’s before Mr. Brown starts pummeling Mr. Short. Once the fight starts, Mr. Marcelle can be seen entering the fray and pulling men off of Mr. Brown and trying to isolate Mr. Short. Mr. Marcelle testified that he weighs 280 lbs. He is by any measure an imposing man and obviously has a commanding presence in the crowd of inmates involved in the fight. He participated in this ruckus without a shirt on, explaining on the witness stand that if he is bare-chested it is harder for an opponent to grab onto him during a close skirmish.

[16] Mr. Marcelle testified that he has intentionally tried to cultivate the aura of a tough man whom other inmates should fear; it is safe to say that he has been successful in achieving that goal. He also testified that he is always loyal to his fellow gang members. When Mr. Brown asked him to join him in beating Mr. Short, he agreed without hesitation and without asking any questions.

[17] It would seem, however, that when Mr. Brown shouted the signal to stab Mr. Short, Mr. Marcelle was not close enough to do the deed. He testified that he went into the fight with his knife in his shorts, but that at the end of the fight he was not sure what happened to it. He speculated that he may have dropped it at some point. If that is the case, then one of the other inmates no doubt picked it up and kept it.

[18] The head of security for the Toronto East Detention Centre, Sgt. John Lawson, testified that a search was done after the incident and no weapons were found. That, of course, is rather remarkable since all three inmates testified that the facility is rife with weapons of all varieties. Even Sgt. Lawson conceded that The East is a violent place with many inmates having weapons.

[19] When Mr. Short was on the witness stand he spent several minutes showing all of the places on his body where he has gotten wounds while in jail, including the time he has spent in the penitentiary and the time spent in provincial facilities such as Toronto East Detention Centre. He has scars from knives or makeshift shivs and shanks on his neck, back, head, arms, forehead, and the side of his face. He described a history of being blindsided and attacked for reasons that are obscure to all but the members of the various groups and gangs in the given facilities. He is 27 years old, and the system has taken its toll on him. As for The East, Mr. Brown and Mr. Marcelle confirmed Mr. Short’s observation that the inmates there are armed to the teeth.

[20] The inability of the Corrections Officers to find any weapons in a place apparently bristling with weapons is emblematic of what is seen in the video. None of the C.O.’s seem to notice that Mr. Brown came out of his cell wearing padded sleeves when everyone else is in short sleeve prison outfits, or that Mr. Marcelle was standing guard at the entrance to an isolated corridor without a shirt on when everyone else was fully clothed. Perhaps watching a video of what is now obviously the minutes preceding a surprise attack is unfair to the C.O.’s, who did not have the benefit of hindsight. However, no one seems to have paid any attention to some obvious signs of trouble.

[21] Once the fight started, it lasted a surprisingly long time before any of the officers arrived on the scene to stop it. There was enough time for Mr. Short to be jumped, for a fist fight to ensue, for Mr. Marcelle to get involved blocking and pulling inmates away, for Mr. Short to exit the crowd briefly and pull his shiv out of his sock, for another fight to ensue between Mr. Short and Mr. Brown in the middle of a larger crowd that is caught up in the brawl, and for side fights to erupt in the bathroom and elsewhere in the vicinity.

[22] Eventually, officers arrive with pepper spray and manage to subdue the crowd, but the control they exert seems lackadaisical at best. It is certainly the case that any inmate who is the target of an attack would have to fend for himself; relying on the C.O.’s to intervene appears to be a formula for a trip to the hospital or the morgue. This atmosphere is self-evident in the video, and confirms what Mr. Short said in his testimony – that, unfortunately, an inmate who feels in danger from attack, or who, like Mr. Short, has a history of having been attacked in jail, needs to carry a concealed weapon in order to feel safe.

[23] As indicated, Mr. Marcelle testified that he did not get a chance to use his weapon on anyone during the fight. He did, however, suffer some wounds himself. He was ultimately subdued by the C.O.’s with pepper spray, but not before he was lacerated across his back with a sharp object. The security video does not show Mr. Marcelle receiving this wound. When he was asked who inflicted this injury on him, he said that he does not know. He was in contact with any number of inmates during the fight, although it does not appear that he was in direct contact with Mr. Short.

III. Who Slashed Who?

[24] At the close of the Crown’s case, defense counsel brought a non-suit application in respect of the charges of assault and assault with a weapon on Mr. Marcelle. I dismissed that application with brief reasons, concluding that there was at least some evidence on which a properly instructed jury could convict. Mr. Short can be seen taking a weapon out of his sock in the middle of the fight, and it is at least within the realm of possibility that a trier of fact could conclude that he used it to inflict wounds on Mr. Marcelle.

[25] Having said that, the video does not show Mr. Marcelle sustaining his injuries, and so the footage does not help in ascertaining who wielded the sharp object that cut him. Given the known injuries and the testimony of Mr. Marcelle, one can surmise that there were at least three weapons present in the fight: Mr. Marcelle’s knife or shiv which he did not use and which got lost, Mr. Short’s shiv which he took out of his sock, and whatever knife or shiv it was that cut Mr. Short on the neck during one of the up-close fights.

[26] This latter weapon does not appear to have been Mr. Marcelles’ lost knife, as he indicated that he held onto it until toward the end of the fight and he was never that close to Mr. Short. Likewise, it was doubtless not Mr. Short’s own weapon, as it seems unlikely that he would have stabbed his own neck with his own shiv. Accordingly, it must have been yet a third knife.

[27] Since Mr. Brown testified that he did not have a weapon, and the security video seems to corroborate that, the knife that injured Mr. Short must have come from one of the other inmates. There were so many inmates in the pile of people participating in this fight once it got going, that it is impossible to know who had a weapon and who didn’t. Indeed, if Messrs. Short, Marcelle, and Brown can be believed, it is possible that almost all of them had a concealed weapon.

[28] All of this is a way of saying that although it is possible that Mr. Short slashed Mr. Marcelle, that is only one of many possibilities. The Crown has not proved even on a balance of probabilities, let alone beyond a reasonable doubt, that this is what happened. Mr. Marcelle could have been lacerated by any number of people with any number of sharp weapons.

[29] This leaves the question of who injured Mr. Brown? Here, it is more likely that it was Mr. Short, since he is seen in the video engaged in hand-to-hand combat with Mr. Brown for much of the time. That said, the video does not show Mr. Brown actually being injured.

[30] Since no one can say under oath that they definitely know who stabbed Mr. Brown, it is tempting to say that the Crown has no proof of who did the stabbing. As Cory J. put it in R v W (D), [1991] 1 SCR 742, at para 10, as a trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.” Here, the witnesses, although sworn enemies, are not exactly at odds, since each of them refuses to say or to speculate who stabbed Mr. Brown.

[31] The issue is, admittedly, a close one. On one hand, I cannot convict the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 45 CCC (2d) 546, at para 45 (Ont CA). On the other hand, “the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved”: R v Lifchus, [1997] 3 SCR 320, at para 31.

IV. Self-Defense

[32] Having examined the security video closely, and in slow motion, I am of the view that indeed Mr. Short was the cause of Mr. Brown’s slashing and puncture wounds. If one looks very carefully and freezes the frames at the precise second, one can see Mr Short’s arm extended and aimed at Mr. Brown in a stabbing posture. No inference can be drawn from this photographic evidence other than that Mr. Short stabbed Mr. Brown.

[33] That leads me to consider Mr. Short’s contention that he acted in self-defense. In his testimony, Mr. Short was adamant that he did not intend to be the aggressor in any fight, and that he carried a shiv for self-defense purposes only. It is certainly the case that he did not start the fight at issue here.

[34] It is easy to conclude that the first two criteria for self-defense under section 34(1)(a) and (b) of the Criminal Code are satisfied. When he fought with Mr. Brown, Mr. Short believed on reasonable grounds that force was being used against him. The security video shows the entire fight commencing with a blindsided attack on Mr. Short, as Mr. Brown comes at him with fists flying from the wings of the corridor when Mr. Short is least expecting it. Likewise, when Mr. Short turned to fight back, he was doing so to repel the force that Mr. Brown was already using against him and to protect himself from the harm caused by that use of force.

[35] As for whether the third criterion for self-defense under section 34(1)(c) of the Criminal Code is satisfied – i.e. that Mr. Short’s use of force was reasonable in the circumstances – I am required to measure his actions against the matters set out in section 34(2), as follows:

(a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[36] Given the circumstances of the fight that Mr. Short found himself in – a prison fight against a rival gang in the STG part of the jail where people are blatantly trying to kill him with knives or shivs – these criteria are readily inclined to his favour. There is nothing unreasonable about Mr. Short using a weapon of his own to defend himself. The system put him in this situation, and the system cannot blame him for resorting to his own means of defense.

[37] The Crown’s entire case rests on section 34(2)(g), the proportionality of Mr. Short’s response to the force used against him. Specifically, counsel for the Crown points out that after his first reaction to being assaulted, Mr. Short can be seen stepping away from the centre of the fight and removing the shiv from his sock. He then steps back into the fray, when, Crown counsel contends, he could have walked the other way and escaped the fight.

[38] This movement in and out of the tight circle of fighters was demonstrated in court by Crown counsel, who slowed the video speed down to one-quarter speed. This allowed the viewer to ascertain the exact moment when Mr. Short could have made a different decision than the one that he made to continue fighting Mr. Brown.

[39] Mr. Short was asked about this decision to re-enter the fight when it seems he could have fled the corridor where the melee was taking place. His response was that he did not make a conscious decision to continue fighting, but rather made an instinctive decision that the fight was not yet over.

[40] He embellished this response by explaining that had he tried to run away at that point, before the C.O.’s had subdued his adversaries, someone would likely have come after him and he would have been in a position of such weakness that he would have put his life in jeopardy. Given his long experience of knife fights in a prison setting, Mr. Short speaks with some authority on the subject.

[41] Counsel for the defense adds to this by saying, somewhat facetiously, “If we could slow down life like we can slow down the video to ¼ speed, then Mr. Short could have measured properly when to stop using his knife.” Mr. Short testified that he was acting on adrenalin and, effectively, on auto-pilot, and had no time to contemplate the niceties of how he was conducting his self-defense.

[42] Defense counsel makes the point that the Crown is imposing unrealistic strictures on the way self-defense was supposed to work here. Mr. Short cannot be expected to have weighed the proportionality of his response with any precision in the heat of the moment when he is under ongoing attack.

[43] Having considered all of the criteria set out in section 34(2), I conclude that Mr. Short acted in self-defense in using force and a makeshift weapon against Mr. Brown.

V. Disposition

[44] I find Mr. Short not guilty of all charges.

Morgan J. Date: July 14, 2016