CITATION: R. v. Hall, 2016 ONSC 7418

COURT FILE NO.: 14-46

DATE: 2016/12/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

EDWARD HALL Applicant

Aquilas Kapend, counsel for the Crown

Paolo Giancaterino, counsel for the Applicant

HEARD: August 22-26, 2016 and November 7 and 8, 2016

REASONS FOR JUDGMENT

LACELLE, J.

Introduction

[1] Edward Hall is alleged to have stabbed Anthony Marini with a knife in March of 2013, at a house party attended by the two men. Mr. Hall has been charged with various offences as a result of the alleged events, including aggravated assault.

[2] Mr. Hall has testified in his defence. He says he was not the person who stabbed the complainant.

[3] There is no issue in this case that the complainant was stabbed in the course of the house party attended by him and the accused. The issue is the identity of the complainant’s attacker.

Overview of the evidence

[4] Both the complainant and the accused gave a consistent account of their history before the house party where the complainant was stabbed. The men had known each other through mutual friends, including Dan Legue. They had been on very friendly terms with one another for a few months before Mr. Legue decided to host a party.

[5] The complainant says that during the party, the accused was assaulted by Clayton King. Following this, he says the accused was angry and kicked everyone out of the party. The complainant left with some friends, but then returned to the apartment because he had forgotten his backpack. Upon his return, the accused yelled at him to get out. After getting the backpack and reaching the door at the top of the stairs to exit the apartment, he says that the accused kicked him in the back. This caused the complainant to slide down the stairs. As he turned to see who hit him, he saw the accused with a knife. He felt a puncture wound under his arm, and felt very sharp pain. He said he saw the knife come at him again and again. He said that at the time, he believed he had been stabbed thirteen or fourteen times. He said these were not “hard stabs”, but quick and repetitive. When he got the bottom of the stairs, he said he saw blue lights, and heard a ticking sound coming from what seemed to be a small box in the accused’s hand.

[6] The accused also says that during the party he was assaulted by Clayton King. He says that as a result of the assault, he was bleeding profusely, and lost consciousness on the kitchen floor. When he regained consciousness, he heard the complainant’s voice saying “oh shit, you motherfucker”. He left the apartment shortly after that. He says he was not aware that the complainant had been injured when he left the apartment, and denied that he assaulted the complainant in any way that evening.

[7] Both the complainant and the accused testified about a subsequent exchange between them on Facebook. The complainant says that the accused messaged him saying “hey, what’s up” and apologized for what happened. The complainant says he was surprised to hear from the accused, and the he replied by saying he did not understand why the accused would stab him. He says the accused replied “what happened happened” and left it at that. The complainant also said the accused messaged that he was “fucked up that night, and didn’t mean anything by it”.

[8] During his evidence at trial, the accused said he found himself online at the same time as the complainant and wrote to him “hey, sorry to hear what happened to you, hope you’re ok”. In his post-arrest statement to police, he said he told the complainant “I heard about that and if anything happened I told him hey sorry I don’t know it’s like I don’t remember shit”.

[9] In addition to this evidence, the trial included evidence about the weapon used during the alleged assault. The complainant identified the knife used in the assault. That knife was sent to the Centre for Forensic Sciences. The analysis conducted there concluded that one bloodstain on the right side of the blade of the knife contained a DNA profile consistent with that of the complainant, while two other bloodstains on the knife contained a DNA profile that was consistent with the DNA of the accused. The latter blood stains were found on the right side of the handle, and the left side of the blade. There were no blood stains or DNA from any other individuals located on the knife.

[10] The court also heard that this knife was initially located by one of the first officers on the scene in the lower foyer of the staircase leading to the apartment where the party occurred. Not knowing the significance of the evidence, and to protect officer and public safety, one of the officers picked up the knife, brought it into the apartment, and placed it on the stove in the kitchen. When the scene was analyzed by forensic identification officers, the knife had been moved in this fashion.

Positions of the parties

[11] The defence says there is no doubt that the complainant was stabbed at the house party he and the accused attended, and that this was an aggravated assault. He argues that the accused was not the person who stabbed the complainant. While the defence concedes certain weaknesses in the accused’s evidence, counsel argues that the evidence of the accused should be believed, or at least give rise to a reasonable doubt. If the court rejects that argument, the defence position is that the case presented by the Crown does not meet its onus of proof beyond a reasonable doubt. In support of that argument, he says that the evidence of the complainant is so problematic that it would be dangerous to rely upon it to support findings of guilt. He highlights various issues in the complainant’s evidence, including inconsistencies, his drug and alcohol use, his animus toward the accused, and the implausibility of his account of how he was stabbed. He argues the complainant’s evidence is neither credible nor reliable. Further, the defence argues that the value of the independent physical evidence, including the DNA evidence, is tainted by the fact that the knife allegedly used in the offence was moved about the scene.

[12] The Crown argues it has met its onus of proof, and has proved each element of each offence alleged beyond a reasonable doubt. The Crown argues that the accused’s evidence is not credible or reliable and should be rejected. She argues the complainant was a credible and reliable witness, and that his evidence is supported in a number of ways. In that regard, she relies particularly on the DNA evidence, and various types of post-offence conduct. The post-offence conduct alleged is that the accused fled the scene, that he lied to police, that he apologized to the complainant on Facebook, and that he is responsible for a falsified recantation letter from the complainant.

The legal principles

[13] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[14] In a case like this, where the accused has testified and presented evidence, the case of W.D. directs the court in its approach to the evidence. In summary, it tells me that if I believe the accused’s evidence, or it leaves me with a reasonable doubt after I have considered it in the context of all the evidence called at trial, he must be acquitted. In a case like this, then, my assessments of the credibility and reliability of a witness’s evidence are particularly important.

[15] It is important to note, however, that in deciding a case, a judge is not comparing each account and deciding which account to believe. It is also important to note that a judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence.

[16] Further, even if a judge disbelieves the evidence given by an accused person, or does not have a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proved its case. A judge must always determine based on all the evidence called whether the Crown has proved each element of every offence charged beyond a reasonable doubt, because there is evidence that the judge accepts that supports each element the Crown is required to prove.

[17] Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure the accused committed the crimes alleged. If the evidence is not strong enough to show with that degree of certainty that the accused committed the offence, the accused must be acquitted.

Issue #1: Do I accept the evidence of the accused, or does it leave me with a reasonable doubt when I consider it in the context of all the evidence?

[18] I do not believe the evidence of the accused, nor does it leave me with a reasonable doubt about his guilt. I arrive at this conclusion chiefly because I cannot reconcile his very detailed evidence at trial about what transpired at the house party with his post-arrest statement to police approximately five weeks after the party.

[19] A few examples of the inconsistencies between the accused’s evidence at trial and his statement to police will illustrate why I do not believe his evidence. First, the accused offered a very detailed account of what occurred at the party in his evidence in chief. It included cogent detail about three occasions when he had a conflict with Clayton King over the course of the evening, including a description of gestures, and facial expressions, that seem unlikely to be recalled some three years after the fact. It included a description of having a bottle thrown at him. It included a description of various individuals pummeling him with fists when he was on the floor of the kitchen, after being hit by the bottle.

[20] None of these events were described by the accused in his statement to police. He also never told the officer that he passed out, lost consciousness, and awoke to hear the complainant’s voice saying something to the effect of “oh shit, you motherfucker”. I do not accept the accused’s explanation for these inconsistencies. I do not believe that he was confused when he was being interviewed because the interview addressed other allegations as well. The accused never asked for any clarification when he was being questioned, and the officer’s questions leading to the answers put to the accused during cross-examination were clear.

[21] Indeed, the accused repeatedly told the officer in his post-arrest statement that he did not remember various details. For instance, during cross-examination, the accused acknowledged being asked the following question, and giving the following answer, where he was again telling the officer he did not remember:

Q. So let’s not talk about the home invasion right now then. Stabbing, you were at the house at York Street obviously we’ve got pictures it’s not a big deal you were at a party having a few drinks, you don’t remember stabbing mister Marini? …

A. Honestly I don’t even know if I was they say me I don’t know even know if it was me don’t even remember leaving anywheres I don’t I don’t remember nothing I remember drinks and him handing me all these fucking drinks and that’s why I kept asking what the fuck man cause it was it’s a young crew.

[22] I cannot reconcile the accused’s repeated utterances during the statement that he did not remember various details, including whether or not he did stab the complainant, with the very detailed account of events at the party that he provided at trial. I do not believe this is the product of the frailty of human memory. The number of details omitted in the statement, and their significance to the accused’s account now, suggest that the details he says he now recalls are a fabrication. I do not believe him when he says that over time, these memories came back to him.

[23] I also reject the accused’s evidence about the circumstances in which he sent the Facebook message to the complainant. The accused’s evidence about what he knew about the complainant having been stabbed, and when he learned the complainant was alleging the accused had stabbed him, was confused and contradictory. I do not believe that he learned for the first time that the complainant had been stabbed when he was at a friend’s computer, and listening in on the discussion his friend was having with others in the same room. It is implausible that if this is when the accused first learned that the complainant had been stabbed, that the fact that the complainant had alleged the accused had stabbed him would not have been raised at the same time. I do not believe that the accused expressed remorse to the complainant over Facebook about the stabbing before learning from his friend that the complainant was saying he was responsible.

[24] On this issue, I find that the content of what was said on Facebook was also the subject of contradictory evidence from the accused. In his evidence at trial, the accused said that he found himself online at the same time as the complainant, and wrote to him “hey, sorry to hear what happened to you, hope you’re ok”. However he told the officer in his post-arrest statement that he told the complainant “I heard about that and if anything happened I told him hey sorry I don’t know it’s like I told him I don’t remember shit”. I do not believe the accused that at the time he was speaking with the officer, he might not have remembered. I do not believe this is an innocent inconsistency. I do not believe the accused’s account of his messaging the complainant on Facebook as given during his evidence at trial. I believe that the accused did send a message to the complainant over Facebook where he expressed remorse. I do not believe that he had not been aware that the complainant was alleging he was responsible for the stabbing at the time he sent that message.

[25] I also reject the evidence of the accused because of the inconsistency in his evidence about whether or not he was drunk during the party. During his evidence at trial, he acknowledged having some drinks, and said he was buzzed. He firmly denied he was drunk. However, he made contradictory statements during his post-arrest interview. He relied on the fact that he was drunk to explain his lack of memory. I don’t accept his explanation for this inconsistency, that the term drunk “might have just slipped in there”, or that all he meant was that he was buzzed.

[26] For these reasons, after considering the accused’s evidence, in the context of all the evidence heard at trial, I do not believe his evidence. Nor does it leave me with a reasonable doubt.

[27] I turn next to the question of whether the Crown’s evidence satisfied me beyond a reasonable doubt that the offences alleged occurred.

Issue #2: Does the evidence adduced by the Crown satisfy me beyond a reasonable doubt that the offences occurred as alleged?

The post-offence conduct

[28] Save for the evidence regarding the messaging between the accused and the complainant on Facebook, which I will address shortly, I do not rely on any other aspect of the evidence in this case as post-offence conduct which may act as circumstantial evidence supportive of an inference of guilt against the accused. I agree with the submissions of the defence as regards the limited significance of evidence of flight, and the necessity for independent evidence showing the accused’s statement to police was fabricated. I also do not rely on the alleged recantation letter by the complainant provided to the Crown by the defence for reasons I will provide later in my judgment.

The complainant’s evidence

[29] The key witness for the prosecution was the complainant, Mr. Marini. As I have said, the defence argues that relying on the complainant’s evidence would be dangerous, because he is neither credible nor reliable. I will address the main issues raised by the defence to support that argument. However, I will first review the evidence which I find to be corroborative of the complainant’s account, since the weaknesses in his evidence will be assessed in the context of the evidence as a whole.

The corroborating evidence

The knife evidence

[30] Whether or not a judge accepts a witness’s account of events may be significantly influenced by the presence or absence of corroborating evidence. In this case, I find that there are two pieces of confirmatory evidence that support the account given by the complainant.

[31] First, there is the evidence about the knife identified by the complainant as the knife used to stab him. I accept his evidence that the butcher type knife found by police in the foyer of the stairway to the apartment was the knife used in the stabbing. There is no contradictory evidence, or any compelling reason to reject his identification of this knife.

[32] I am aware of the potential for contamination of this knife given the fact that it was moved from its original location to the kitchen, where the accused’s blood had been deposited on several surfaces, and because people were in and out of the apartment prior to the knife being secured as evidence. However, I am not persuaded that the evidence of the DNA found on the knife is the product of contamination, such that the finding of the accused’s DNA on the knife has no value as circumstantial evidence that is capable of supporting the complainant’s account.

[33] The evidence is that the knife was viewed in the stairwell of the common entry area to the house where the apartment was located. Three officers observed it there, and I accept their evidence on that issue. One of the officers picked up the knife and brought it to another officer, who placed it on the stove in the kitchen. By this time, the accused had left the kitchen. It is clear that the accused’s blood had been deposited on several surfaces in the kitchen. The identification officer observed and documented red staining particularly in the area of the kitchen counter by the sink area and on the floor. However, I find that there is no compelling evidence that the accused’s blood had been deposited on the stove in the area where the knife was placed, and later documented by the identification officer. There was no red staining on the surface of the stove where the knife was deposited. This was the evidence of the identification officer, and it is consistent with the photograph of the knife on the stove. I accept the identification officer’s evidence on this issue. Consequently, I find that notwithstanding the opportunity for contamination to have occurred, the evidence of the accused’s blood and DNA on the knife is circumstantial evidence of some weight that is capable of corroborating the complainant’s account. In that regard, I consider that there were no blood stains or DNA from any other individuals located on the knife.

[34] I find the knife evidence corroborates the complainant’s account in two ways, only one of which involves the DNA. First, the evidence of where the knife was initially observed by police is consistent with the complainant’s description of where the stabbing occurred. Secondly, the presence of the accused’s blood and DNA on the knife is consistent with the complainant’s account of the identity of the person who stabbed him. Both of these facts are supportive of the account the complainant gave in his evidence.

The Facebook evidence

[35] I also find that the evidence about the exchange between the complainant and the accused on Facebook corroborates the complainant’s account. Both the complainant and the accused agree this exchange did occur. On both versions of their accounts, the accused is expressing he is sorry about what happened. As I have said, I do not believe the accused when he says that he sent that message not knowing that the complainant was saying the accused was the person who stabbed him. Given the consistency in the accounts of the accused and the complainant about the fact that a Facebook message of this kind was sent, the fact that copies of the messages exchanged were not obtained and produced in evidence is of considerably diminished significance.

[36] I find that the evidence of the accused to the effect that he sent a Facebook message to the complainant saying he was sorry about the stabbing corroborates the complainant’s account that he received such a message. I further find that the message confirms the account given by the complainant, as it tends to show that the accused felt he had something to be sorry about. This expression of remorse is consistent with the account of events given by the complainant that it was the accused who hurt him. The fact that the accused would send such a message is also consistent with the nature of the friendly relationship between the accused and the complainant which existed up to the point of the stabbing, and the consistent evidence given by the accused and the complainant that there was no bad blood between them prior to the stabbing.

The frailties in the complainant’s evidence

[37] As has been effectively argued by counsel for Mr. Hall, there are several deficiencies in the evidence given by the complainant. I have considered the arguments presented by counsel, and will address the more troublesome deficiencies in the evidence he emphasizes, in turn.

The complainant’s drug and alcohol use the night of the stabbing

[38] There is an inconsistency in the evidence of the complainant about how much alcohol he consumed the night of the stabbing, and whether he had also consumed drugs. I assess this inconsistency in the context of the complainant’s evidence that at the time of these events, he had experienced significant difficulties with both alcohol and drugs. He readily admitted his difficulties with both substances.

[39] While the complainant had no recollection of his conversations with paramedics and nursing staff the night of the stabbing, he did not suggest he did not tell them that he had consumed pot that night. He maintained, however, that his recollection at trial was that he had not consumed any pot. As regards alcohol, the complainant agreed that his estimate about how many shots he had varied slightly from his evidence at the preliminary hearing.

[40] I do not believe the complainant was intentionally misleading the court on these issues, or trying to represent himself in a better light, particularly given his ready admissions about his extensive drug habit. I accept that his memory of events, particularly what he told paramedics and nursing staff, would diminish with time. I am also of the view that if the statement to paramedics and nursing staff was accurate, in context, smoking pot did not amount to significant drug consumption for the complainant. There is no suggestion by any of the professionals who had contact with the complainant that night, such as police and medical staff, that they believed the complainant to be impaired by either alcohol or drug, or even noted signs of impairment. While I do consider the complainant’s evidence mindful that its reliability may be impacted by his admitted use of both alcohol and pot that evening, I do not consider these discrepancies in the evidence as fatal to his credibility or reliability.

The presence of a taser in the accused’s hands

[41] There were inconsistencies in the accounts given by the complainant about the accused also having a taser in his hands at some point. The issue of the taser was first raised by the complainant in statement to police the same month as the stabbing (March 2013), when he said that a friend told him the accused had a taser that night.

[42] At trial, the complainant said he saw a box in the accused’s hands after seeing a blue light when he was at the bottom of the stairs. However, at the preliminary hearing, he said the accused had nothing in his hands. The complainant explained the discrepancy by saying that he remembered the box for the first time about a year ago. He agreed the first time he had mentioned seeing a box in the accused’s hands was at trial.

[43] I find that the complainant is not reliable on the presence of an item that might have been a taser. However, I am not persuaded that his account is an attempt to deliberately mislead the court. The complainant did not suggest for the first time at trial that the accused had hurt him with the taser, but simply that he had an item in his hands and he saw a blue light. It may be that given the information he received from his friend, his own recollections have been impacted. If the taser was implicated in how the complainant says the accused hurt him, I would be more concerned about these discrepancies. While I find that the complainant is unreliable on this point, in context, this portion of his evidence does not rise to the level of completely undermining the entirety of his account.

[44] I arrive at the same conclusion as regards other more minor inconsistencies in the complainant’s account, for instance, as regards whether the complainant saw the accused consuming any alcohol that night, and his evidence about the timing of various events, such as when he stopped drinking that night, the time frame for when he first met the accused, and the time between the fight between the accused and Clayton King and the time he was stabbed.

The complainant’s animus towards the accused

[45] I have considered the defence submission that this is a case where there is some evidence of animus by the complainant toward the accused. The defence points to the complainant’s initial statement to police where he tells them that the accused is running around with twenty year olds with a bunch of knives and they should get the guy off the street, and says this shows animosity toward the accused. I accept the complainant’s account that when he gave this statement, he was angry he had been stabbed, and concerned that it not happen to someone else.

[46] I found nothing in the manner in which the complainant testified to indicate that he harboured any ongoing animosity toward the accused. If anything, he was even-handed, noting that while he was looking forward to putting this event behind him, he was sure the accused was looking forward to this too.

[47] I do not believe that the complainant’s allegations are motivated or coloured by animosity toward the accused, nor do I have a reasonable doubt that they are.

The evidence about Shawn Legue

[48] The defence argues that there are significant issues with how the complainant has described the involvement of Shawn Legue in the events at the party, and that his omissions and inconsistencies undermine his credibility and reliability. The defence says that the complainant did not mention Shawn Legue’s involvement until after the Crown attorney had received his alleged recantation letter, and a police officer interviewed him about it. This was the first time the complainant said that Shawn Legue had tried to assault him after he returned to the apartment to get his bag, and before he was stabbed by the accused. The defence argues that the complainant’s suggestion in that interview with police that his altercation with Shawn Legue was the reason for the assault by the accused is not consistent with his evidence at trial that the accused turned on him after the fight with Clayton King and because he was high or drunk. The defence also argues that the complainant has been inconsistent in his subsequent account of where this incident with Shawn Legue occurred.

[49] In the context of the allegations here, I am not troubled by the failure of the complainant to mention the events with Shawn Legue to police earlier than he did. The reason he was complaining to police in the first place was because he said the accused had assaulted and stabbed him. He had no complaint with Shawn Legue. In the grand scheme of the events that the complainant was narrating, it is understandable that he would not have volunteered the details of what occurred with Shawn Legue in his early statements to police.

[50] I also do not see any major inconsistency in the complainant’s account of where he was with Shawn Legue when Legue tried to assault him. The apartment where the party was held was not large. The living room entrance was steps away from the top of the stairs, and the entryway into the apartment. To the extent that the complainant has said that the events with Shawn Legue occurred at the top of the stairs or in the living room entrance, I find that this is a generally consistent account of where these events took place.

[51] I do not find that the complainant’s evidence about Shawn Legue’s involvement that night significantly undermines his credibility or reliability. Nor do I find the complainant’s evidence that he saw no injury to Shawn Legue, which evidence is contradicted by some of the police witnesses who did observe an injury to Mr. Legue’s face (at least one officer did not), is a reason to reject his account of how he was assaulted by the accused. The complainant gave evidence consistent with the officer’s observations about where Mr. Legue was located when he left the apartment. Whether or not the complainant can also accurately recall that Mr. Legue had a cut above his eye when he last saw him that night does not weigh heavily in my assessment of his overall credibility and reliability.

[52] I agree with the defence that there are inconsistencies in the accounts given by the complainant about the involvement of Shawn Legue that night, and I have considered those contradictions. I am not sure that much if any weight should be given to the complainant’s speculation about why the accused acted as he did, whether he links it to the fight with Clayton King, or to events with Shawn Legue. Moreover, when I consider the contradictions in the context of the evidence overall, I find that what is material is that the complainant has always been consistent that whatever happened with Shawn Legue, it was the accused who stabbed him. The contradictions in the complainant’s account about Shawn Legue do not cause me to reject this aspect of the complainant’s account.

The contradictions in the complainant’s evidence about where the accused was when he first saw him with the knife

[53] Similarly, I agree with the defence that there are contradictions between the complainant’s evidence and his prior police statements about where the accused was when he first saw him with the knife. The complainant told police that he saw the accused run at him from the kitchen, while he testified at trial that he first saw the accused with the knife after being kicked in the back. The complainant explained this inconsistency by saying he was mistaken in his accounts to police. Again with this inconsistency, when I consider it in the context of the evidence as a whole, I find that what is material is that the complainant has always been consistent that it was the accused who stabbed him.

The complainant’s account of the number of times he was stabbed

[54] The evidence shows a clear discrepancy in the number of times the complainant says he was stabbed, and the number of wounds he sustained. The complainant said during his evidence at trial that at the time of these events, he thought he had been stabbed thirteen or fourteen times. He said they were not hard stabs, but quick and repetitive. He said he remembered counting little nicks and cuts on his arm and under his arm and assumed they were all caused by this incident. He said these marks were not documented by police to his knowledge. He acknowledged that the photos taken of him at the hospital showed only four puncture marks.

[55] I do not find the contradiction in the complainant’s recollection of the number of times he was stabbed undermines the fundamentals of his account. The evidence is clear that the complainant was repeatedly stabbed. In addition to the puncture wounds on his arm, the hospital photos show a cut to his face. It may be that there were attempts to stab the complainant that did not result in wounds. I do not doubt that in the moment of being stabbed, the complainant would have difficulty in distinguishing the number of times he was stabbed. As for his suggestion that he counted other nicks and cuts at some point, to the extent that this contradicts the physical evidence documented by the identification officers at hospital, it does not cause me to find that the complainant is being deliberately misleading, or that his recollections are so unreliable that the fundamentals of his account should be rejected.

The complainant’s alleged recantations

[56] Evidence was led during the trial suggesting that the complainant recanted his allegations. First, there was a letter allegedly signed by the complainant that was produced to the Crown by the defence at the time of the accused’s preliminary inquiry. Secondly, there was evidence about post-offence contact between the accused and the complainant while they were both in the cell block of the local courthouse.

[57] I am not satisfied that the letter produced to the Crown was authored by the complainant, nor do I have a reasonable doubt about that. I believe the complainant when he says he did not write it. I believe him in part because when I consider the contents of the letter in the context of all the evidence at trial, this supports the complainant’s denial that he wrote the letter. For instance, there is no other evidence that suggests the complainant was on “pills” that night. The complainant denies the suggestion that he was threatened by the Crown Attorney, or offered consideration for his evidence. There is no evidence that the complainant has received any benefit in exchange for his testimony, and I do not believe he was threatened by the Crown Attorney in order to obtain evidence against the accused. The letter’s description of the accused being out cold and covered in blood, and the suggestion that Shawn Legue was likely the person who stabbed the complainant, is consistent with the trial evidence given by the accused. This version of events is inconsistent with the evidence of the complainant, or any prior statement made by him.

[58] I arrive at this conclusion without additionally considering the evidence about the accused’s handwriting. No expert opinion was presented in evidence, and I am not inclined to determine this issue by conducting my own analysis since the issue may be resolved without doing so.

[59] While there is reason to be suspicious the accused either wrote the letter or had someone else do so, there is insufficient evidence to convince me beyond a reasonable doubt that this has occurred. Consequently, I draw no adverse inference as a result of this evidence.

[60] As far as the cell block evidence is concerned, this was first raised by the defence in cross-examination. The complainant denies the allegations of the accused that the complainant told him in cells he would “make things right”, and gave him a fist pump. I believe the complainant. I do not accept the account given by the accused, nor does it leave me with a reasonable doubt that the complainant in effect recanted his allegations against him. While the Crown was permitted to call additional evidence on this issue in reply, I do not rely on that evidence. The officer said to have witnesses this interaction made clear her memory of her dealings with the accused and the complainant in cells together were extremely vague. She had not referenced her notebooks from the relevant time frame prior to testifying. While the officer is credible, I am not satisfied that in the circumstances she was able to give reliable testimony.

Global assessment of the complainant’s evidence

[61] There was nothing in the manner in which the complainant testified that would cause me to reject his evidence. He was a responsive witness. He was not evasive. He admitted the obvious reasons that his memory of these events might be impacted, including the passage of time since the events, and the use of alcohol. He freely admitted to unflattering conduct, including his addictions to drug and alcohol and extensive drug use, and his criminal record.

[62] In assessing his evidence, I also consider that the complainant has a considerable criminal record. It includes numerous breaches of court orders, drug related convictions, as well as entries for mischief (domestic) and assault.

[63] Notwithstanding the difficulties with the complainant’s evidence highlighted by the defence, considering the complainant’s evidence in the context of the evidence as a whole, including the corroborating evidence, I am not persuaded that his evidence is so incredible or unreliable that his account of how he was assaulted and stabbed, and who did this, should be rejected.

[64] I accept his account of being kicked and stabbed in the stairway, and that the accused is the person who assaulted and stabbed him. I accept his account that there was no provocation or conflict leading up to this assault, and that it was totally unexpected.

[65] I also find that the complainant suffered injuries that meet the definition of “wounding” as interpreted under s. 268 of the Criminal Code. I find that the complainant suffered four stab wounds, two in the area of his under arm and two to his upper left arm. He had a cut to the left side of his face. I accept that he suffered a pneumothorax (collapsed lung) to his left lung. I accept that he required stitches to close his wounds, and morphine for the pain his injuries caused him, including pain in his back. I accept that the complainant continues to experience physical problems as a result of the injuries. He says that over-exertion could cause his lung to deflate again, and that he cannot sleep on his left side too long because of pain to his rib cage, which he believes is a result of the medical treatment he received following the stabbing.

Conclusion

[66] There is no dispute that the elements of the offences charged are made out if the court accepts the case presented by the Crown beyond a reasonable doubt. As I have found that the Crown has proved that the accused assaulted and stabbed the complainant, Mr. Hall will be found guilty on all charges.

Madam Justice Laurie Lacelle

Released: December 1, 2016

CITATION: R. v. Hall, 2016 ONSC 7418

COURT FILE NO.: 14-46

DATE: 2016/12/01

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

EDWARD HALL Applicant

REASONS FOR JUDGMENT

Madam Justice Laurie Lacelle

Released: December 1, 2016