Court File and Parties
Court File No.: CR-16-30000636 Date: 2017-03-16 Superior Court of Justice - Ontario
Re: R. v. Coltt Roberts
Before: E.M. Morgan J
Counsel: James Dunda, for the Crown Ari Goldkind, for the defense
Heard: March 13-15, 2017
Reasons for Judgment
[1] Mr. Roberts is charged with aggravated assault and breach of two probation orders requiring him to be on good behaviour and to keep the peace. The charges stem from an incident that occurred in the very early hours of Monday, June 20, 2016. The previous day, June 19th, was Father’s Day, and Mr. Roberts had spent much of the day at a water park with his former girlfriend, Odetta McKenzie, and their infant son. Mr. Roberts’ older son from another mother also came along for the outing.
[2] The victim of the alleged assault was Mark Irwin, who at the time was Ms. McKenzie’s latest boyfriend. He was found lying in Ms. McKenzie’s living room suffering from serious head injuries and bleeding from the nose and ears. Mr. Irwin testified at trial and has at least partially recovered from his injuries. The Crown and defense both agree that the injuries he sustained in June 2016 meet the definition of “wounds, maims, disfigures or endangers life” as set out in section 268 of the Criminal Code.
[3] The case is a circumstantial one. No one saw what happened to Mr. Irwin. There is only one person who could have shed more direct light on the subject, and that is Ms. McKenzie. She knows both Mr. Roberts and Mr. Irwin well, spent time with both of them on June 19-20, 2016, and was in her apartment where Mr. Irwin sustained his injuries when the incident occurred.
[4] The one thing on which counsel for the Crown and counsel for the defense agree, however, is that Ms. McKenzie’s testimony is unreliable. It is hard to tell when she is lying and when she is telling something that contains at least a modicum of truth. For example, at the preliminary inquiry in October 2016 she said she saw Mr. Roberts punch Mr. Irwin while he was lying injured on the floor of her apartment, whereas at trial she testified that she did not see Mr. Roberts in the apartment the night of the incident and does not know the circumstances of Mr. Irwin’s injury. Indeed, at trial she expressly said that she had lied at the preliminary inquiry – an assertion that itself is as likely to be a lie as not.
[5] When asked why she lied, she stated that at that time of the preliminary inquiry she was confused and angry with Mr. Roberts. She as much as stated that she has changed her story because now she is no longer mad at him. She has apparently renewed her relationship with Mr. Roberts since the preliminary inquiry, and has visited him in jail some half a dozen times in recent months. I presume that if the current trial were to adjourn and re-start in several months, her testimony as to whether Mr. Roberts did or did not commit the offense would simply depend on whether she was seeing him again or they had broken up again at that time. Telling the truth does not appear to factor into her thought process. It would be embarrassing to the administration of justice to base any conclusion on Ms. McKenzie’s testimony.
[6] Accordingly, we are left with an evidentiary record composed of some brief video clips from a security camera in the lobby and hallway of Ms. McKenzie’s apartment building, together with the testimony of Mr. Irwin and Ms. McKenzie’s 16-year old son, Kaivon McKenzie. Mr. Irwin’s evidence is not helpful in identifying who hit him. He was knocked unconscious and does not remember the incident at all. He testified that he has no memory of anyone hitting him or how he fell.
[7] The security video shows a man who appears to be Mr. Roberts entering the lobby of the building, and walking down the hallway in front of Ms. McKenzie’s apartment, in the early hours of June 20, 2016. He can be seen stopping at the front door of Ms. McKenzie’s apartment and peeping into the living room through the mail slot. There is some debate between Ms. McKenzie and Kaivon as to whether the person shown in the video is in fact Mr. Roberts, but I am convinced it is him. It looks like him, and he is wearing a black fedora, which Ms. McKenzie concedes is a type of hat he owns; moreover, a similar-looking black fedora was found lying next to a large blood stain on Ms. McKenzie’s apartment floor, and DNA evidence obtained from the inside headband of the fedora linked it to Mr. Roberts.
[8] The time of Mr. Roberts’ appearance in the hallway and peeping through the mail slot coincides with the time of Mr. Irwin’s mishap and with Mr. Roberts himself showing up inside Ms. McKenzie’s apartment. As indicated, Mr. Roberts had spent Father’s Day with Ms. McKenzie. After the water park, he returned to her apartment to wait for his older son to be picked up, and then left to go home. He suddenly reappeared at the apartment sometime after midnight, first inspecting the living room through the mail slot, and then vanishing down the hallway and ultimately materializing inside the apartment apparently by climbing up to the second floor balcony – an entrance that was not difficult to access and that was often used by Kaivon McKenzie and his teenage friends.
[9] Meanwhile, Ms. McKenzie was having a busy day. At some point after Mr. Robert’s departure from the Father’s Day outing and before his reappearance via the balcony, Mr. Irwin called and asked if he could come over for a visit. Ms. McKenzie said that he could, and he brought with him some food from a barbeque he had attended that day. She testified that he also brought over champagne and Jamaican rum cream, and that he had been drinking that day and evening. Ms. McKenzie, who is a mother of five children, described having to hold off the drunk and amorous Mr. Irwin until after the children were in their bedrooms for the night. Although Mr. Irwin himself only recalled having a drink or two – “some juice or something”, as he put it – he testified that when he sat down on Ms. McKenzie’s sofa he might have been a bit “tipsy” and at some point he dozed off there.
[10] I pause to note that Mr. Irwin indicated in his testimony that although he did not know Mr. Roberts, he had spoken with him on the telephone and had encountered him once. Apparently, while visiting Ms. McKenzie on a previous occasion, Mr. Irwin overheard Ms. McKenzie arguing with Mr. Roberts on the telephone and then got on the phone himself to speak with Mr. Roberts, whom he had never met. Mr. Irwin said that Mr. Roberts did not threaten him and did not seem angry, but that he had advised him that he – Mr. Roberts – had been seeing Ms. McKenzie and that she was the mother of his child. Mr. Irwin also related that later that day someone whom he surmised must be Mr. Roberts had approached him in the parking lot of Ms. McKenzie’s apartment building and shook his hand and said “It’s good to meet you”, or something to that effect. Again, Mr. Irwin indicated that this was not a violent or threatening encounter, and that Mr. Roberts seemed to simply want to meet Mr. Irwin in person.
[11] Mr. Irwin was credible in relating this aspect of his story. He did not exaggerate it, and did not accuse Mr. Roberts of anything. Although this goes some way to establishing a motive for Mr. Roberts as a former boyfriend of Ms. McKenzie’s that was still interested in her, it was not relayed by Mr. Irwin as a way of manipulating the evidence against Mr. Roberts. Indeed, Mr. Irwin went out of his way to stress that his brief conversations with Mr. Roberts were not threatening and, if not excessively friendly in tone, were not particularly angry.
[12] In any case, late at night on June 19th or early in the morning on June 20th, with Mr. Irwin sedate on the living room sofa and the children all in their bedrooms, Ms. McKenzie went into her own bedroom. According to her, she was in the bedroom when she heard a loud bang in the living room. When she came out to see what made the sound, she saw Mr. Irwin lying face-down on the floor and when she touched him she could see that he was bleeding from the head. She got very upset and in a panic called 911.
[13] At both trial and the preliminary inquiry, Ms. McKenzie testified that she did not see anyone hit Mr. Irwin when he fell to the ground, and so did not know how he got his injuries. The fact that she said this at both proceedings might increase the chances that she is telling the truth, but it by no means guarantees it. Ms. McKenzie says what is convenient to say on the spur of the moment.
[14] At the preliminary inquiry, Ms. McKenzie went on to say that although Mr. Irwin was already on the floor when she came out of her bedroom, she did see a person hovering over him and hitting him while he lay there and that after a moment she realized that person was Mr. Roberts. As already indicated, at trial she was asked about this statement and explained that, actually, at the preliminary inquiry she had lied about seeing Mr. Roberts standing over and hitting the bleeding Mr. Irwin. When pressed further on this at trial, she eventually came up with so many more fabrications that she almost lost track.
[15] At first she said she was in shock and confused by the violent scene, although it eventually dawned on her that that might describe her confusion at the time of the incident but not her state of mind months later at the preliminary inquiry. She then conceded that at the time she was mad at Mr. Roberts, suggesting (although she did not like it being put this way) that she was setting up the father of her youngest child just because she was otherwise not happy with him. She then sidetracked into a narrative about being threatened by Mr. Irwin’s family members who wanted her to pin the deed on Mr. Roberts, although she could not identify any of his family members or give any specifics that might help take this story out of the realm of pure imagination. Finally, she indicated that she was threatened by a mysterious friend of Mr. Irwin’s named Jeffrey, whom she claimed miraculously turned up in her apartment to scare her into falsely blaming Mr. Roberts just moments after Mr. Irwin was knocked out.
[16] As indicated, nothing Ms. McKenzie said in this regard can be believed. She is not only a chronic liar, she is a transparent and ineffective one. When she says she does not know who hit Mr. Irwin, one can almost surmise that she does know; and when she says that she did not see Mr. Roberts, there is a better than even chance that it was him that she saw. For this reason, of course, I rely on none of her evidence as to what transpired when Mr. Irwin was injured in her apartment in the small hours of June 20, 2016.
[17] It is noteworthy, however, that the image of Mr. Roberts standing over Mr. Irwin who was lying on the floor injured was also related by Kaivon McKenzie. Unlike his mother, Kaivon narrates what he saw in a straightforward way and does not appear to be constantly manipulating his testimony to some strategic end. Although I gathered that he has had some legal troubles of his own in the past, I found him to be an honest and intelligent witness.
[18] Kaivon indicated that late in the night of June 19-20, 2016, he was asleep in his bedroom and awoke to the sound of a commotion and his mother, Ms. McKenzie, screaming from the direction of the living room. Kaivon jumped out of bed to see what was going on, and in the living room saw Mr. Irwin on the floor lying face down and unconscious. Kaivon testified that he saw blood on Mr. Irwin’s right hand on the inside of his palm. Standing beside Mr. Irwin were his mother and Mr. Roberts. Kaivon said that his mother was calling an ambulance and had a phone in her hand, while Mr. Roberts was saying to Ms. McKenzie: “Don’t call an ambulance.”
[19] The ambulance and police arrived within a very short time. In Kaivon’s account, as well as that of the police officers that attended at Ms. McKenzie’s apartment, there was no “Jeffrey” in the picture making threats. They did report, however, that Ms. McKenzie was visibly distraught at the scene. The police photographed the apartment, including a large blood stain on the wooden floor near the sofa and a black fedora hat dropped right next to the blood stain.
[20] It is axiomatic that the onus is at all times on the Crown to prove the case beyond a reasonable doubt. No eyewitness has testified, as everyone else was in another bedroom when the incident took place. There is no other direct evidence of how Mr. Irwin sustained his injuries. It is therefore a circumstantial case, and should be analyzed in terms of the rule in Hodge’s Case (1838), 168 ER 1136. That rule provides that, “where all the evidence is circumstantial the accused can be found guilty only if the evidence is both consistent with guilt and inconsistent with any other rational conclusion”: Mezzo v. The Queen, [1986] 1 S.C.R. 802, at para 12.
[21] Although the analytic process with respect to circumstantial evidence is one of drawing inferences, those inferences must be based on logical possibilities thrown up by the evidence in the record. As Doherty JA stated in USA v. Huynh, 200 C.C.C. (3d) 305, at para 7 (Ont CA), “The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess.”
[22] The facts from which I can draw an inference are simply that Mr. Roberts had exclusive opportunity to assault Mr. Irwin, and, as an ex-boyfriend trying to get back together with Ms. McKenzie, he may have had a motive to do harm to Mr. Irwin. I also find, based on the security video and Kaivon’s description of the ease of exit and entry via the balcony, that Mr. Roberts first looked through the mail slot in the front door of the apartment to see what was happening in the living room, and then without knocking or otherwise announcing himself came around the back and entered by climbing up to the second floor balcony – an entrance that was not difficult to access and that was often used by Kaivon McKenzie and his teenage friends.
[23] During final submissions I asked defense counsel: if Mr. Roberts was alone in the living room with Mr. Irwin when Mr. Irwin went crashing to the ground, what possible explanations for Mr. Irwin’s injuries are there other than his being assaulted by Mr. Roberts? Counsel answered that Mr. Irwin might have hurt himself, or that anything might have happened. The key, he submitted, is that the Crown did not prove what happened.
[24] It is literally true that anything is possible – for example, Mr. Roberts suddenly standing next to Mr. Irwin may have fortuitously coincided with Mr. Irwin, in a state of intoxication, falling off Ms. McKenzie’s sofa and hitting his head on the floor. Of course, the fact that Kaivon saw blood on Mr. Irwin’s hand suggests that Mr. Irwin grabbed his injured head on his way down, and not that he injured it on impact with the ground. Even ignoring that evidence, however, the idea that Mr. Irwin may have had a self-inflicted injury, and that Mr. Roberts’ simultaneous arrival was just a coincidence, seems like a paradigm case of speculative reasoning. It’s not quite as far-fetched as saying that Mr. Roberts may have arrived just as Mr. Irwin was struck by lightning, but it is improbable and speculative all the same.
[25] The evidence – the reliable evidence, excluding that of Ms. McKenzie – establishes that Mr. Roberts scouted the terrain by peeking through the front door mail slot, and that he then entered the apartment unannounced through the balcony door. It also establishes that he was alone in the living room with Mr. Irwin – who was known to him as his ex-girlfriend’s current beau – just at the moment that Mr. Irwin fell to the floor with injuries to the head.
[26] I am reminded that the Supreme Court of Canada admonished in R. v. Lifchus, [1997] 3 S.C.R. 320, at para 31, that, “the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved.” And while I acknowledge that, “the reasonable doubt standard… falls much closer to absolute certainty than to proof on a balance of probabilities”, R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para 242, I am also aware that, “a reasonable doubt must not be imaginary or frivolous”: Lifchus, at para 31.
[27] In my view, the theory that Mr. Irwin may have fallen off the sofa or otherwise hurt himself, and that this occurred coincidentally just after Mr. Roberts scoped out the living room and then snuck in through the balcony, is speculative and raises only an imaginary doubt. The only rational inference is that Mr. Roberts assaulted Mr. Irwin and caused his injuries.
[28] I find Mr. Roberts guilty of aggravated assault. Flowing from this finding, I also find Mr. Roberts guilty of breach of two probation orders, as charged.