Court File and Parties
COURT FILE NO.: 16-40000014-0000 DATE: 20160919 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JESSE FRENCH
Counsel: R. Liberman, for the Crown J. Rybak, for Jesse French
HEARD: September 13-15, 2016
BEFORE: S.A.Q. Akhtar J.
Reasons for Judgment
[1] Jesse French stands accused of the individual counts of Aggravated Assault and Robbery stemming from an incident that occurred on 26 June 2013 at the Franki Boys Sports Bar located at the intersection of Sweeney Drive and Victoria Park Avenue. The allegations originate from a dispute that began in another nearby bar and culminated in a brutal attack on the victim, Bryan Lavoie. The injuries sustained by Mr. Lavoie were both serious and long lasting, resulting in the loss of his left eye.
[2] Ms. Liberman, Crown counsel, submits that the accused was one of three men that perpetrated the attack to be later identified by Mr. Lavoie. Mr. Rybak, counsel for Mr. French, argues that the identification of the accused is both flawed and inaccurate. He further contends that there is insufficient evidence to demonstrate the accused’s involvement in the assault and submits that Mr. Lavoie’s evidence is riven with inconsistencies and contradictions.
The Facts Not in Dispute
[3] The defence does not contest the fact that Mr. Lavoie was the victim of an assault on 26 June 2013. At the outset of the case, the parties also agreed upon the extent of Mr. Lavoie’s injuries resulting from the assault.
[4] An Agreed Statement of Facts tendered into evidence specified that, as a result of the attack, Mr. Lavoie suffered:
- A left globe rupture which resulted in the loss of Bryan Lavoie’s left eye;
- Lacerations to both the upper and lower left eyelid;
- Orbital Bone fracture;
- Laceration on the back of the head;
- Scalp Hematoma;
- A loss of consciousness during the attack.
The Evidence of Bryan Lavoie
[5] Mr. Lavoie, now 37 years of age, testified that, on 26 June 2013, he attended the Happyland bar at Victoria Park Avenue and Lawrence Avenue, in Toronto, where he met a friend by the name of Daniel and another man who he was acquainted with, Richard Chabot. Whilst enjoying a drink on the patio of the bar, Mr. Lavoie entered into a conversation with a party consisting of two men and two women who were accompanied by a dog. Mr. Lavoie enquired if the dog was “friendly” and was told that he was not. The conversation ended at that point.
[6] Mr. Lavoie continued to drink and eat wings at Happyland. After an hour or two, he left the bar to go to the nearby Franki Boys Sports Bar with Mr. Chabot. He testified that on leaving Happyland, at approximately 9.00 to 9.30 pm, he was “buzzed” i.e. feeling the effects of alcohol but not drunk.
[7] Arriving at Franki Boys, Mr. Lavoie and Mr. Chabot encountered Mr. Chabot’s roommate and began drinking together. Mr. Lavoie observed the accused at the bar, recognising him as a person whom he had seen in the area on prior occasions. Mr. Lavoie described the accused as being 5 foot 8 or 9 inches tall with tanned skin. The accused was also “clean shaven with a five o’clock shadow”. Mr. Lavoie could not tell his background and assumed that Mr. French might be Hispanic or of Middle Eastern origin.
[8] At some point, Mr. Lavoie entered into a conversation with the accused after being approached by him. The tone of the conversation was not pleasant. According to Mr. Lavoie, the accused was aggressive towards him, slapping his hands together. Mr. Lavoie told the court that whilst he could not remember the exact details of the conversation, it was clear to him that the accused knew the two men from Happyland and the subject of their conversation concerned the dog on the patio at Happyland. Mr. Lavoie attempted to placate the accused by buying him a drink at the bar. Shortly afterwards, the accused left the bar to go outside and speak to the two men who had been at Happyland and who were now standing outside Franki Boys.
[9] During the course of the evening, Mr. Lavoie also stepped outside Franki Boys on a number of occasions to smoke a cigarette. On one occasion, he was approached by the two men that he had met earlier on the patio at Happyland. They told him that they had been asked to leave that bar because of something that Mr. Lavoie had said about their dog. During this conversation, the two individuals looked over to the accused.
[10] Later on, Mr. Lavoie again went outside for another cigarette break. He heard his name called out by the accused and the two men from Happyland who were standing near the alleyway adjacent to Franki Boys. Mr. Lavoie walked over and had a brief conversation - the details of which he can now no longer remember. He only recalled that it concerned the dog, a topic which made him decide to walk away. As he did so, the accused struck him on the back of the right side of his head just above the ear. The force of the blow almost felled him but he managed to regain his balance. Looking up, Mr. Lavoie saw the accused hit him again on the left side of the face, after which all three men attacked him. Mr. Lavoie fell to the ground and was repeatedly kicked in the head which led to him losing consciousness.
[11] When he revived, he was on the North side of the parking lot laying on a patch of grass. Mr. Lavoie testified that he did not know how he had ended up at that location. Mr. Lavoie noticed that his left eyeball was hanging down on his left cheek. He reached for his phone to call 911 but the accused intervened by stepping on his hand. The accused kicked him in the face and uttered the words “Don’t be a rat”. He recalled that Mr. Chabot was present and tried to prevent the accused from further assaulting him. Eventually, 911 was called and Mr. Lavoie was taken to Sunnybrook Hospital where he was admitted into the Intensive Care Unit. Surgery undertaken to save Mr. Lavoie’s left eye proved unsuccessful and the eye was replaced by a prosthetic device.
[12] At the hospital, Mr. Lavoie also discovered that various pieces of jewellery, namely a necklace and bracelet, had gone missing.
[13] Mr. Lavoie provided two initial statements to the police on 27 June 2013 and 4 July 2013. On 3 December 2013, Mr. Lavoie picked out the accused when shown three different photo line ups. There is no dispute as to the propriety of the police procedure or the fact that the person selected by Mr. Lavoie was the accused. The recording demonstrates Mr. Lavoie’s confidence in identifying the accused as the person who attacked him.
The Surveillance Video
[14] The Crown also tendered video evidence capturing events inside Franki Boys on the night of 26 June 2013. This evidence detailed the interactions between Mr. Lavoie and the accused and captured, albeit from a distance, the assault outside the bar.
[15] At approximately 12.21 am, Mr. Lavoie is seen seated at the end of the bar and shortly thereafter is seen to join Mr. Chabot and his roommate at a table near the front of the bar. At 12.29, the accused leaves the bar and begins conversing with someone outside the bar. At different points, Mr. Lavoie is seen to leave Franki Boys, presumably for a cigarette break. At 12.40 am, the accused is seen talking with Mr. Lavoie in a somewhat agitated manner. Mr. Lavoie appears to buy the accused a drink after which the accused exits Franki Boys followed minutes later by Mr. Lavoie.
[16] The attack on Mr. Lavoie can be seen through a window at the top right hand corner of the video recording. Mr. Lavoie falls to the ground and is set upon. At 1.05 am, Mr. Lavoie’s body is seen being moved from the location in which he fell. Minutes later, the accused re-enters the bar and takes a pitcher of water through the front entrance and outside the premises. He returns to be followed outside by the bartender who now carries the pitcher.
[17] Both the Crown and the defence rely on the video as part of their case.
Evaluation of Mr. Lavoie’s Evidence
[18] The Crown’s case rests largely on the testimony of Mr. Lavoie. No other witness provided direct evidence that Jesse French physically assaulted Mr. Lavoie. There are, however, several problems with his account of events. The following examples illustrate some of the difficulties with his evidence.
[19] Mr. Lavoie denied being intoxicated when the attack occurred but conceded that, by the time of the assault, he had consumed a combined total of approximately ten drinks at Happyland and Franki Boys. Mr. Lavoie’s description of his physical state was that he was “buzzed” rather than drunk. However, in his initial statement to the police, he repeatedly informed them that he was intoxicated.
[20] Although Mr. Lavoie, at trial, claimed that he saw the accused hit him, it is clear that in his previous statements he never told the police that he had seen the person who had struck him from behind.
[21] Mr. Lavoie, at trial, was convinced of the accused’s role in the assault. However, when speaking to the police, he described the man who assaulted him as being of “Indian Coolie Asian” descent. “Coolie”, he explained, was a term he used to describe a person who was West Indian or East Indian. Moreover, in his statement to the police on 4 July 2013, he described his attacker as being West Indian or East Indian. The accused is a white Caucasian male.
[22] Mr. Lavoie also told the police in prior statements that his attacker was wearing a blue dress shirt. The surveillance video clearly shows the accused dressed in a baggy, black t-shirt. Mr. Lavoie also testified that he could not remember any of the statements given to the police after the incident. Yet, he clearly claims to remember the actual incident itself.
[23] The Crown sought to explain some of the discrepancies by asking the court to view Mr. Lavoie’s description of his assailant in the prevailing dimmed lighting conditions. The difficulty with this argument is that, according to Mr. Lavoie, he had seen the accused on previous occasions. It must have been clear, at least on other occasions, that the accused was not of an Indian, Middle Eastern or Asian heritage. Moreover, Mr. Lavoie’s explanation for many of the inaccuracies present in his prior statements was that he was fearful of retaliation by the accused. If that was the case, however, why, I ask rhetorically, would Mr. Lavoie actually identify the accused at all?
[24] On the basis of Mr. Lavoie’s initial statements to the police, it would appear that he was identifying a person different to the accused as his assailant, perhaps one of the two men from Happyland. Yet, on 3 December 2013, Mr. Lavoie emphatically claimed that the person he had selected from the photo line-up - Jesse French - was the man who started the assault and continued it when preventing him from calling 911.
The Events As Portrayed on the Surveillance Video
[25] Mr. Lavoie’s inconsistencies are understandable in some ways. He was the victim of a very serious assault which might well have affected his recollection of details. He had also consumed a number of alcoholic drinks preceding the assault. It may well have been that trauma had affected his initial thoughts on the matter causing him to provide significantly different descriptions of his assailant.
[26] The crucial piece of evidence, in my view, comes from the recording made through the surveillance cameras at Franki Boys.
[27] This recording places the accused in Franki Boys, illustrates his conversation with Mr. Lavoie and confirms that he knows and converses with the two men from Happyland shortly before the attack on Mr. Lavoie.
[28] As both parties acknowledge, however, the most significant part of the recording occurs between 12.53 am and 1.04 am.
[29] The camera depicts Mr. Lavoie outside the bar at 12.53 am. At 12.54 am, the accused also exits the bar. At 12.59 am, both men are still outside Franki Boys. At 1.03.38 am, the accused can be seen re-entering the bar and walking down the stairs at the front of the bar to the basement area where washrooms are located. At 1.04.21 am, the attack on Mr. Lavoie commences with Mr. Lavoie seen falling to the ground. At 1.04.44 am, the accused is seen coming up the stairs that he previously descended and moving rapidly to the outside area where the attack has occurred. At 1.08 am, the accused walks back into Franki Boys and puts out a left hand on the bar, taking a pitcher of water and exiting. Two seconds later, the bartender is seen carrying a pitcher of water from the door way to the outside area.
[30] The video expressly contradicts Mr. Lavoie’s clear assertions that the accused was part of the group that initiated the attack as he had clearly re-entered Franki Boys a minute or so before the attack began. Or does it? Ms. Liberman, for the Crown, says that this anomaly can be explained. She argues that it was more than possible for the accused to descend into the bar’s basement, run along the length of the building to the back, re-emerge and run round the alleyway in good time to attack Mr. Lavoie. After the attack, she says, the accused ran back round taking the reverse route and re-emerged from the stairs giving the appearance that he had nothing to do with the assault. This plan, she says, was hatched by the accused to avoid detection as he knew that a surveillance camera was stationed on the premises and would record events both inside and outside the bar.
[31] To support this proposition, Ms. Liberman called Constable Michael Pagniello who visited the location on 15 June 2015. He described the area in the basement as consisting of washrooms and a staffing area. He confirmed that it was possible to enter from the front of the bar, go down the stairs and exit through the back of premises which allowed access to the alleyway at the side of the building. Performing three laps at different speeds, Constable Pagniello walked, jogged and ran the route suggested by the Crown. Walking the distance took him 45 seconds; a brisk jog yielded a time of 27 seconds; and running full speed meant that he completed the route in just 21 seconds. Assuming the same speed for the return journey, a person running this route, there and back, would take approximately 42 seconds.
[32] As noted, the accused is seen re-entering Franki Boys at 1.03.38 am and re-emerging from the stairs to go back out at 1.04.44 am. This would have meant that if it took the accused 42 seconds to run to scene of the attack and get back, he would have had only 1 minute and 6 seconds to call over Mr. Lavoie, engage him in a brief conversation and then, along with the other two males, severely beat him before commencing his return run. Even more narrowly, if the attack began at 1.04.21 and the accused was then seen re-emerging at 1.04.44, his participation in the attack would have lasted seconds. I find this scenario to be very unlikely.
[33] The Crown’s position is made even less tenable due to the evidence given by Constable Pagniello in relation to the way in which the doors locked in the basement area. According to the officer, there were locks on the inside of the doors leading to the staffing area and a panic bar on the rear exit door. Thus, for the accused to successfully navigate through the basement, all the staff doors - leading inside and outside - would have to have been unlocked and the rear exit door propped open to permit a successful re-entry on the return journey. I find these things to be implausible particularly with the time constraints in place.
[34] Finally, I would add, that despite the very able submissions of Ms. Liberman, the Crown’s theory takes a fatal hit below the waterline when the accused’s conduct is taken into account. Ms. Liberman’s position asks me to accept the execution of a very skilful and carefully thought out plan almost diabolical in nature. The accused, using his knowledge of the layout of Franki Boys’ basement, formed an intent to attack Mr. Lavoie and then brilliantly covered his tracks by making it appear that he was in the washrooms and not outside when the attack occurred. Once again, I ask rhetorically: why then, having the superior acumen to conjure up such a scheme, would the accused come back up the stairs and go to the very same spot that he has taken such pains to avoid been seen at? Nor, it should be noted, does the accused go to the scene of the crime just once - he returns with a pitcher of water to try and clean the blood spots from the area in front of Franki Boys.
[35] I find therefore that the accused could not have been amongst the group that initially attacked Mr. Lavoie outside Franki Boys Sports Bar.
The Second Assault
[36] Even though I find that the accused could not have not committed the initial assault on Mr. Lavoie, there is a second part to the incident which took place after Mr. Lavoie recovered consciousness. Waking up on the grass in the North side of the plaza in which Franki Boys was situated, Mr. Lavoie testified that the accused prevented him from calling 911 by stepping on his hand and phone. He further assaulted Mr. Lavoie by hitting him in the face. According to Mr. Lavoie, by this time, Mr. Chabot was on scene and tried to stop the accused.
[37] If I accepted this evidence, even though the accused may not have committed the aggravated assault outside Franki Boys, he could still be held liable for the Aggravated Assault count as an aider and abettor by preventing the apprehension of the actual perpetrators.
[38] Once again, however, there are grave difficulties with Mr. Lavoie’s testimony. First, Mr. Lavoie’s erroneous testimony that the accused was part of the group that initially attacked him casts grave doubts over the reliability of his evidence as a whole.
[39] Furthermore, in prior statements given to the police on 27 June 2013, Mr. Lavoie failed to mention any details regarding the accused stepping on his hand or kicking him in the face. On 30 April 2015, Mr. Lavoie first mentioned the accused stepping on his phone. Tellingly, there was no reference to his hand being stepped on his face being kicked.
[40] Critically, however, his version of events is expressly contradicted by the statement given by Richard Chabot to the police shortly after the incident. This statement was recorded in the notebook of Constable Richard Weckworth and tendered, on consent, as an exhibit by the defence. Mr. Chabot told the police that he was in his apartment, located above Franki Boys, when the assault occurred and that he arrived after the incident had occurred. It was he who called 911 so that an ambulance could take Mr. Lavoie to Sunnybrook Hospital. Mr. Chabot was clear that he had not seen any of the assault and that the “suspects” he did have the opportunity to observe were running away. One of those suspects was described as a male with a “shaved head”. Of particular note is the fact that the accused, of course, did not leave Franki Boys but returned to the bar to get a pitcher of water. Mr. Chabot also told the police that he picked Mr. Lavoie up and moved him which might explain the events recorded on video as Mr. Chabot is wearing a dark top.
[41] For these reasons, once again, I am unable to accept Mr. Lavoie’s version of events.
Post Offence Conduct
[42] The Crown asks, however, that any doubt surrounding Mr. Lavoie’s testimony can be resolved by considering the accused’s actions after the assault had ended, namely using pitchers of water to remove Mr. Lavoie’s blood that had seeped onto the ground where he had fallen. Ms. Liberman argues that this is a form of post offence conduct showing the accused attempting to conceal evidence of his guilt. The photographs taken by Constable Philip Wong of the area in front of the Franki Boys storefront appears to show a water like substance surrounding the blood on the ground. The video surveillance clearly shows the accused taking a pitcher of water to the area in question. These pieces of evidence point to the inescapable conclusion that the accused poured water over the blood to try and remove it.
[43] Ms. Liberman suggests that the irresistible inference is that the accused was attempting to conceal evidence of his guilt. Mr. Rybak, on the other hand, contends that there could be a number of reasons for the accused’s actions. He posits the most likely being the accused’s sense of community spirit in trying to help Franki Boys Sports Bar in cleaning up a mess in front of its business premises.
[44] I reject Mr. Rybak’s interpretation as implausible. There was no request by any of the Franki Boys staff to clean the area. More revealingly, the haste at which the accused moves indicates an urgency to his actions. In my view, Ms. Liberman is correct and the accused, of his own accord, was attempting to remove the blood on the ground before police arrived, possibly to assist those persons who had attacked Mr. Lavoie.
[45] That conclusion, however, does not end the matter. Post offence conduct is a piece of circumstantial evidence to be used in context with the entirety of the evidence and not alone: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. There may be other explanations for an accused’s actions which must be considered, but first and foremost, post-offence conduct supplements and works with the existing evidence demonstrating that the accused committed the offence: see R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760. In other words, the post-offence conduct must be looked at with other evidence demonstrating the accused committed the offence. For the reasons set out previously, I have already found that the evidence actually refutes this notion.
Final Comments
[46] The Crown has failed to discharge its burden of proof beyond a reasonable doubt with respect to the count of Aggravated Assault. It follows that, in finding that the Crown has failed to prove the accused assaulted Mr. Lavoie, I also find that there is no evidence demonstrating that the accused robbed Mr. Lavoie of any jewellery.
[47] Before closing, however, I wish to offer a few remarks about Mr. Lavoie.
[48] As a victim, Mr. Lavoie suffered a brutal attack with extremely serious injuries. He will live with the consequences of this incident for the rest of his life. In determining his evidence to be unreliable, I wish to make clear that I do not find that he fabricated or deliberately lied to the police in any way. The inconsistencies and confusion in his evidence are perfectly understandable when viewed alongside the traumatic and shocking beating that he was subject to and of which there is no dispute as a fact. Mr. Lavoie honestly believed the accused to be the man who attacked him and told the police the truth as he accepted it to be. The fact that I have found that he was wrong is no comment on his veracity.
[49] Mr. Rybak suggested that there was evidence that Mr. Lavoie was being a nuisance and an annoyance to others in Franki Boys on the night that he was attacked. I respectfully disagree: there is no such evidence. In fact, the surveillance video shows the exact opposite - demonstrating, for instance, Mr. Lavoie’s calm nature when being confronted by an agitated Mr. French and buying him a drink in order to pacify him.
[50] By contrast, Mr. Rybak’s description would be more in apt in describing Jesse French. The video surveillance discloses the accused wandering from area to area in the bar, acting obnoxiously, striking the bar with his hands, pursuing a female bartender despite her apparent lack of reciprocity and demonstrating an aggression towards Mr. Lavoie in the build up to the events that occurred outside.
[51] I would also add that even though I have found the accused not guilty of the offences charged, his role in what happened that night is not entirely clear and raises a cloud of suspicion. He plainly knew the assailants, was seen speaking to them prior to their vicious assault on Mr. Lavoie, and acted with wanton stupidity and disregard for the law in trying to clean the blood from the area in front of Franki Boys Sports Bar in the immediate aftermath of the attack. Any right minded member of the public would have been astute enough to recognise that the blood spots were potential evidence of a crime that had been committed. The accused’s senseless and foolish actions could well have resulted in additional or alternative criminal charges of obstructing justice being laid against him.
[52] As I have said, there is a cloud of suspicion that hangs over the accused’s actions. Suspicion, however, is not the standard required for a criminal conviction. Accordingly, I find Jesse French not guilty of the counts on the Indictment.
[53] I would only add my compliments to both counsel for their skill and co-operation in presenting this case in a manner that was both expeditious and fair. They are to be applauded for their efforts.