CITATION: Regina v Isaacs, 2016 ONSC 7480

COURT FILE NO.: CR-16- CR-16-30000071

DATE: 20161202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v Patricia Isaacs

BEFORE: EM Morgan J.

COUNSEL: Tim Edwards, for the Crown Brian Kolman, for the Defendant

HEARD: November 28-30, 2016

REASONS FOR JUDGMENT

I. The issue

[1] Can one infer an intent to obstruct justice from the fact that an item was removed from the scene of a crime?

[2] Shortly after midnight on March 15, 2014, a fatal stabbing took place at the Markham Bar and Grill, a small neighbourhood establishment in Scarborough, Ontario. The assailant, Anthony Alas, fled the scene immediately after the altercation. Mr. Alas was a regular customer of the bar, and frequently went there to play pool.

[3] The accused, Patricia Isaacs, was Mr. Alas’ friend. When Mr. Alas fled the scene, Ms. Isaacs retrieved his two pool cues along with her own backpack and ran out of the bar. She eventually took the cues back to her friend’s nearby apartment, where they were found by the police in a closet next to his bloodstained jacket a day later.

[4] Ms. Isaacs is charged with attempting to obstruct justice by removing evidence from a crime scene, contrary to section 139(2) of the Criminal Code. The question in this case is whether the removal of the pool cues amounted to something more than the innocent retrieval of property left behind by her friend, Mr. Alas.

[5] The Crown contends that Mr. Alas’ fingerprints would likely have been on the pool cues, and that they therefore could have been used as identification evidence.

[6] The defense contends that Ms. Isaacs did not mean to obstruct a police investigation into identity, since that was not likely to be a contentious issue.

II. The bar fight

[7] The salient facts of this case are not in dispute.

[8] The bartender at the Markham Bar and Grill, Samantha Blackwell, testified that she started her shift at around 6:00 on the evening of March 14, 2014, and that when she arrived at the bar Ms. Isaacs was already there. Ms. Blackwell testified that she and Ms. Isaacs were friends, and that she often saw her with other friends, including Mr. Alas, at the bar. She knew that Ms. Isaacs lived with her mother in a nearby apartment building at 55 Greenbrae Circuit, and that Mr. Alas lived with his girlfriend, Catherine Descoteaux, in the same building.

[9] Ms. Descoteaux testified that the Greenbrae apartment building was only about a two minute walk from the bar. She said that Mr. Alas was a relatively frequent patron of the Markham Bar and Grill, and that he was an avid pool player. Indeed, since Mr. Alas is a diabetic he did not go there to drink alcohol, but rather went there to socialize and play pool. He owned two pool cues, which Ms. Descoteaux thought cost somewhere in the neighbourhood of $50, and always took them with him to the bar.

[10] Ms. Descoteaux indicated that a friend of Mr. Alas’ had invited him to play pool on the night of March 14, 2014, and that they went there sometime before midnight. Security camera footage in the lobby area of 55 Greenbrae shows Ms. Descoteaux and Mr. Alas, along with Ms. Descoteaux’s niece, leaving the apartment building at 11:48 p.m.

[11] Shortly after arriving at the bar, Ms. Descoteaux saw Ms. Isaacs come into the bar from the parking lot and appeared to be upset about something. Ms. Descoteaux and Ms. Isaacs were friends who lived in the same apartment building. Ms. Descoteaux indicated that Ms. Isaacs was charging her cell phone, and that she had with her a black backpack that was sitting on the floor near the wall where the phone was plugged in. She testified that she recognized the backpack as one in which Ms. Isaacs kept personal items, cosmetics, etc.

[12] According to Ms. Descoteaux, Ms. Isaacs was angry that night about an encounter she had with another patron at the bar, Masud Khalif, who apparently had accosted Ms. Isaacs out in the parking lot. Ms. Blackwell, who was tending bar that night, also noticed that Ms. Isaacs was visibly upset. She said that she did not think much of it at the time, as Ms. Isaacs is often moody. She said that she was busy at the bar and figured that Ms. Isaacs would eventually tell her what was wrong if it turned out to be serious. In the meantime, Mr. Alas was setting up for a game of pool. Neither Ms. Descoteaux nor Ms. Blackwell indicated whether a game ever actually got started that night.

[13] Ms. Descoteaux indicated that she bought Ms. Isaacs and herself a shot of tequila, and then went outside for a smoke. Ms. Isaacs apparently went outside as well, and there they encountered Mr. Khalif. According to Ms. Descoteaux, Mr. Khalif was extremely rude, and when she confronted him he began swearing at her and shouting very close to her face. At some point, Mr. Alas also joined the fray just outside the door of the bar, and began yelling at and struggling with Mr. Khalif.

[14] The fight between Mr. Alas and Mr. Khalif quickly became physical. Ms. Descoteaux testified that they were standing face to face and she thought they were punching each other. She said that she approached Mr. Khalif from behind and put her arms around him in an attempt to pull him away from Mr. Alas. At some point she noticed some blood, and said to Mr. Alas, “What did you do?”

[15] Ms. Descoteaux and Mr. Alas fled the scene together, running in the direction of their apartment on Greenbrae. They did not take the time to go back into the bar to retrieve Mr. Alas’ pool cues. Ms. Descoteaux testified that when she turned to run, she saw Mr. Khalif standing in the parking lot and holding his neck with his hand. She knew he was injured, but she said that she did not realize his injuries were fatal until she heard sometime later that Mr. Khalif had died from his wounds.

[16] Ms. Blackwell also witnessed much of the altercation. She testified that shortly before midnight she approached the door to go outside for a smoke, and saw that several people, including Ms. Isaacs and Ms. Descouteaux, were standing near the door of the bar. She tried to go out to the parking lot, but the door was pushed closed by Mr. Khalif. Since she did not want to confront Mr. Khalif, who seemed to be in an angry mood, she went back to work at the bar. A few moments later, when she saw that the crowd seemed to have cleared, she tried the door again.

[17] As Ms. Blackwell exited the bar she saw the fight between Mr. Alas and Mr. Khalif. She noticed that Mr. Khalif was holding his neck and that there was a great deal of blood. She went to get the phone, and gave it to her boss and owner of the bar, Vavakaran Kanesmoorthy (Vava), who in turn gave it to another patron of the bar, Raymond Rasheed, who called 911.

[18] Mr. Rasheed provided a statement to the court, which the Crown and the defense both submitted as part of an agreed statement of facts. Mr. Rasheed observed Ms. Isaacs exiting the bar just after the fight between Mr. Alas and Mr. Khalif. She was carrying two pool cues with her. Mr. Rasheed saw her run in the direction of Lawrence Avenue East and then turn right (west) onto Lawrence Ave East.

[19] The security camera at 55 Greenbrae shows Ms. Isaacs coming and going from the building a number of times that night. She can be seen entering the building at 11:01 p.m., wearing no backpack and carrying nothing in her hands. Then, at 11:12 p.m., the video shows her leaving the building without a backpack. Over an hour later, at 12:19 a.m., the video footage shows her running back into the building with a black backpack on her back and carrying two pool cues in her hand. The security video also shows that Mr. Alas and Ms. Descouteaux returned to the building and entered the lobby just before Ms. Isaacs, at 12:17 a.m.

[20] A statement obtained from Mr. Alas indicates that Ms. Isaacs returned his pool cues to him sometime later that day.

[21] Ms. Isaacs must have had her black backpack with her when she first went to the bar in the early evening, and left it there when she went back to her apartment for a break just after 11:00 p.m. She returned with the backpack and the pool cues shortly after midnight, two minutes after Mr. Alas and Ms. Descouteaux returned.

III. Obstruct justice

[22] Section 139(2) of the Criminal Code creates an offence of specific intent. “The actions of the accused must be proven to be wilful and intended to obstruct, pervert or defeat the course of justice beyond a reasonable doubt. A simple error of judgment will not be enough”: R v Hansen, 2016 ONSC 548, at para 43 (SCJ), citing R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190, at para 522.

[23] As stated in R v Melo, 2014 ONSC 1364, at para 29, “I must be satisfied beyond a reasonable doubt that [the accused] knew that what [s]he was doing had a tendency to obstruct, pervert or defeat the course of justice, and that [s]he intended that it do so.” As is often the case, the specific intent here cannot be gleaned by direct evidence but rather must be arrived at as an inference from the circumstantial evidence in the record.

[24] As trier of fact, I “must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”: R v Griffin, 2009 SCC 28, [2009] 2 SCR 42, at para 33. Moreover, in order to assess the strength of any such inference, I must analyze the relationship between the circumstantial evidence and the rest of the evidence in the record: R v White (1996), 1996 CanLII 3013 (ON CA), 108 CCC (3d) 1 (Ont CA).

[25] Counsel for the Crown points out that for the purposes of this analysis it does not matter that the pool cues were not used to identify Mr. Alas, or that the removal of them from the scene of the crime did not actually have the effect of impeding the police investigation or the subsequent prosecution. Trotter J. (as he then was) observed in R v David, [2009] OJ No 3007, at para 13-14, that an accused need only attempt to obstruct the course of justice, and that under section 139(2) there is no requirement that this have any real impact. The person must have done enough for there to be a risk, without any further action by him or her, that injustice will result: Re Yarlasky [2005] OJ No 606, at para 2 (Ont CA).

[26] While it is true that the attempt to obstruct justice need not have been successful, R v Graham (1985) 1985 CanLII 3644 (ON CA), 20 CCC (3d) 210 (Ont CA), this is not a case where the accused tried, but failed, to accomplish her task. Defense counsel submits that there is simply no evidence to support a finding that Ms. Isaacs took Mr. Alas’ pool cues with a specific intent to obstruct, pervert, or defeat the course of justice. He points out that an offence of specific intent requires subjective foresight, R v Kirkham 1998 CanLII 13866 (SK QB), [1999] 1 WWR 605, at para 27 (Sask QB), and that in the overall context of the evidence no such foresight can be inferred from Ms. Isaacs’ actions.

[27] As a matter of logic, liability for removing the pool cues is predicated on the idea that removing them would make it hard to identify Mr. Alas. As defense counsel points out, Ms. Blackwell, the bartender and a friend of Mr. Alas, was at the bar and right at the doorway when the stabbing took place. Mr. Vava, the bar owner, was familiar with Mr. Alas as a frequent customer, and was present in the bar at the time of the stabbing as well. Indeed, within a short time of the police commencing their investigation, Ms. Blackwell had identified Mr. Alas as the perpetrator of the stabbing. The police knew precisely who he was and where he lived.

[28] The defense goes on to argue that not only were the pool cues not necessary for identification purposes, but it is unreasonable to assume that Ms. Isaacs would have thought that the pool cues amounted to evidence of any kind. They were not used or even related to the knifing of Mr. Khalif. Ms. Isaacs, who was herself a regular at the bar, was unquestionably aware that Mr. Alas was well-known at the bar and could be identified by any number of people.

[29] It is defense counsel’s submission that there are entirely plausible explanations for Ms. Isaacs having picked up the pool cues that have nothing to do with the police investigation. Even if one concedes that Ms. Isaacs knew that a violent incident had just occurred and that the police would doubtless be called to investigate, she may well have picked them up with no further thought than to return them to Mr. Alas. In the same way as she picked up her own backpack containing her personal items before she left the bar, she could have simply seen her friend’s pool cues and thought to return them to him. Although they were not particularly expensive items, the evidence is clear that Mr. Alas was an avid pool enthusiast and always took them with him to play.

[30] The key point, of course, is that it is doubtful that someone in Ms. Isaacs’ position, knowing who was in the bar that night, would have thought that the police need an inanimate object to identify who it was that had been in the fight. Mr. Alas was, as they say, in a bar where everybody knows his name.

IV. Disposition

[31] One cannot infer from Ms. Isaacs having removing the pool cues from the bar that she had a specific intent to obstruct justice.

[32] I find Ms. Isaacs not guilty.

Morgan J.

Date: December 2, 2016