R. v. Yeshi and Chuk, 2017 ONSC 4036
Court File and Parties
Court File No.: CR-14-10000421-0000 Date: 2017-08-18 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: Jigme Yeshi and Yeshi Wang Chuk, Defendants
Counsel: Brigid McCallum, for the Crown William Jaksa, for Jigme Yeshi Robert Valentine, for Yeshi Wang Chuk
Heard: October 24, 26, 27, November 2, 3, 25, 2016, March 27, 28, April 12, 13, 25 and June 28, 2017
Reasons for Judgment
B. P. O’Marra J.
Overview
[1] The two accused are jointly charged with offences that allegedly occurred on July 4, 2013. On October 24, 2016, both accused re-elected to be tried by me without a jury. The trial has now occupied thirteen days of court time spread over many months. Several days were required for voir dires related to contentious evidence. There were disputes related to the nature and extent of admissions that occupied several days. Unfortunately, continuation dates had to be set on an intermittent basis related to the availability of counsel and the court. At the request of counsel, when the evidence was completed, a date several weeks away was set for written submissions to be filed. It is far from ideal that a trial proceeds intermittently over such a protracted time. Experienced counsel for both accused raised no objections to the various continuation dates. I am satisfied that the time involved to complete this trial did not impair the full and fair presentation by both crown and defence. After dealing with certain admissibility issues, the evidence on the trial proper was not extensive. Both accused chose not to testify or call any other evidence.
[2] The two accused are jointly charged on a five-count indictment as follows:
JIGME YESHI and YESHI WANG CHUK stand charged that they, on or about the 4th day of July in the year 2013, at the City of Toronto, in the Toronto Region, did commit an aggravated assault on Jamal GRAHAM by wounding him, contrary to section 268 of the Criminal Code.
JIGME YESHI and YESHI WANG CHUK stand further charged that they, on or about the 4th day of July in the year 2013, at the City of Toronto, in the Toronto Region, did commit an aggravated assault on Sheanna WILLIAMS by wounding her, contrary to section 268 of the Criminal Code.
JIGME YESHI and YESHI WANG CHUK stand further charged that they, on or about the 4th day of July in the year 2013, at the City of Toronto, in the Toronto Region, did commit an assault on Jamal GRAHAM while using a weapon, to wit: a knife, contrary to section 267 of the Criminal Code.
JIGME YESHI and YESHI WANG CHUK stand further charged that they, on or about the 4th day of July in the year 2013, at the City of Toronto, in the Toronto Region, did commit an assault on Sheanna WILLIAMS while using a weapon, to wit: a knife, contrary to section 267 of the Criminal Code.
JIGME YESHI and YESHI WANG CHUK stand further charged that they, on or about the 4th day of July in the year 2013, at the City of Toronto, in the Toronto Region, did have in their possession a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code.
[3] There was no dispute that the serious injuries to the two complainants were caused by a knife. No weapon was recovered. The critical issues at trial were the identity of the assailants and party liability.
Evidence of Jamal Graham
[4] Jamal Graham is the complainant on counts one and three. He is 32 years old and has acknowledged that he has the following criminal record:
2002-08-23 Assault with intent 5 months open custody and probation 12 Toronto ON to steal s. 343(c) - months on each charge concurrent and (Youth Court) 344 CC (2 charges) (7 months pre-sentence custody)
2006-04-18 (1) Attempt murder (1) 9 years (credit given for the equivalent of Toronto ON 4 years pre-sentence custody)
(2) Possession of a weapon (2) 3 years concurrent
(3) Unauthorized possession (3) 1 year concurrent of a prohibited or restricted firearm (Global sentence 5 years) and mandatory prohibition order s. 109 CC
2009-08-14 Statutory release
2016-07-29 Fail to comply with 7 days (credit for the equivalent of 15 Brampton ON recognizance s. 145(3) CC days pre-sentence custody)
[5] On the evening of July 3, 2013, he had consumed alcoholic beverages before going to the bar with his girlfriend Sheanna Williams and two others. He denied using any drugs before going to the bar. He continued to drink alcoholic beverages at the bar to the point that he felt inebriated. On a scale of 0 to 10 for intoxication, he self-assessed as 8. He played pool with someone at the bar and did not recall any negative interactions.
[6] He recalled that it was raining as he and Sheanna Williams left the bar. At some point after he was outside, he became involved in an altercation with two, possibly three persons. He described it as “kind of like a drunken brawl.” He tried to defend himself. He acknowledged that he may or may not have initiated the altercation by words or gestures. At some point he realized that he had been stabbed but did not see any weapons involved.
[7] Jamal Graham sustained numerous injuries, including a number of stab wounds to his right arm and back. He believes he sustained a collapsed lung. He was in the hospital for four to six days.
[8] In cross-examination, he acknowledged his criminal record but disputed some of the factual and legal underpinnings of certain convictions.
Evidence of Sheanna Williams
[9] Sheanna Williams is the complainant on counts two and four. On the date of this incident she had been involved in a dating relationship with Jamal Graham for approximately eighteen months. Before going to the bar in the late evening of July 3, 2013, she and Jamal Graham had smoked some marijuana. They had also shared a 27 ounce bottle of rum with her cousin and another friend. The four of them went to the bar together. At the bar she consumed a significant amount of beer as well as shots of liquor. She felt “tipsy.” On an intoxication scale of 0 to 10, she self-assessed as 5 or 6. She knew Jamal Graham had been drinking but in her opinion he was not drunk.
[10] Sheanna Williams and Jamal Graham remained in the bar after her cousin and her friend left. Jamal Graham finished a game of pool and they decided to leave. Jamal Graham headed for the door and Sheanna Williams followed just behind him. She testified that there were people “purposely” blocking the front door as they went to leave. Jamal Graham pulled her past a person at the door. She testified that Jamal Graham may have touched the person who was blocking the door. She could not describe that person other than to say that he was Asian. She heard someone make a vulgar comment and Jamal Graham responded. She had no idea who the vulgar words were said by or directed to. She thought no more of it as they planned to get a cab to go home. She saw a cab make a U-turn. Jamal Graham turned and made a comment to someone. She urged Jamal Graham to just go. The cab was on the other side of the street. Jamal Graham was arguing with someone but she could not see who. She and Jamal Graham were about to enter the cab when “they basically attacked him from behind.” There were two people against Jamal Graham. She tried to separate them. It looked like the two men were hitting him. She did not see a knife or any other weapon being used. She described it as an “unfair fight.”
[11] At some stage she said “I think you are bleeding” and “they have a bottle.” She then realized that she herself was bleeding. She testified that there was blood everywhere. At some stage a woman wrapped her injuries with a shirt. Sheanna Williams does not know how she was injured. At some stage she passed out and does not know how the altercation ended.
[12] In cross-examination, Sheanna Williams said that she did not see Jamal Graham punch or push anyone inside the bar.
[13] Sheanna Williams sustained a 6-10 inch wound on her left forearm, a 3 inch cut on her right arm and a small cut below her left breast. At the hospital she underwent surgery and received blood transfusions.
Evidence of Kristen Desjarlais
[14] Kristen Desjarlais is twenty-six-years old. She was at the bar in the late evening of July 3, 2013 and into the early hours of July 4, 2013. She had no prior contact or connection with either accused or either complainant. She saw a black man playing pool in the bar. He was loud and animated. He appeared angry. She stayed at the bar longer than originally planned, enjoyed herself and drank alcohol to the point of intoxication.
[15] As she went to leave the bar, she noticed and heard two men at the doorway speaking in a foreign language. She thought it was Vietnamese but was unsure. A black man with a girl walked past them and something was said by one of the two men. The black man said words to the effect of “what the fuck did you say to me?” and made aggressive gestures.
[16] The black man approached the shorter of the two men and punched him in the face before leaving the bar with the girl. Kristen Desjarlais felt that the action by the black man was unprovoked. The two men at the door said something to each other. The shorter man pulled out what looked like a switch blade knife. The blade was 2” or 3” long. He held it in his fist. He did not wave it around but kept it at his side. She was sure it was a knife and not a key. The shorter man motioned to the other man to go outside with him. Kristen Desjarlais told them not to go but they kept going. She felt that with a knife involved the situation was “not going to end happy.” She followed them outside.
[17] Once outside the bar, Kristen Desjarlais saw the two Asian men run up to the black man and woman. There was a “huge altercation.” There was blood everywhere. The fight moved across the street and back towards the front of the bar. It appeared that the woman with the black man was trying to stop the fight. Kristen Desjarlais never saw the knife during the fight outside the bar. When the fight broke up the two Asian men ran away.
[18] Kristen Desjarlais acknowledged that she requires eye glasses for short sightedness. She does not like to wear her glasses and was apparently not wearing them during this incident.
[19] In cross-examination she admitted that without her glasses she could not make out faces or races of people sitting at the back of the courtroom.
[20] After Kristen Desjarlais had been cross-examined, a dispute arose between the Crown and defence counsel related to out-of-court prior identification of the two alleged assailants.
[21] Kristen Desjarlais testified that she could not identify either accused in court as being involved in the altercation. She had provided a video statement to the police in the early afternoon of July 4, 2013. That would be some eleven hours after the incident outside the bar. She testified that she had not slept well before coming in for the police interview and was “hung over.” Her memory of events was obviously much better on July 4, 2013. A voir dire was commenced relating to two photo arrays that were presented to Kristen Desjarlais by the police. Counsel agreed that evidence received on the voir dire would become evidence on the trial proper, subject to a ruling on admissibility.
[22] The photo array process as recorded on video did not accord totally with the Sophonow Inquiry recommendations but I was satisfied that the results were admissible on the trial proper. “Those recommendations are neither conditions precedent to the admissibility of eye witness testimony nor binding legal dictates for the assignment of weight”: R. v. Pelletier, 2012 ONCA 566 at para. 94. Kristen Desjarlais selected each accused from among the two sets of photos shown to her. Counsel for both accused did not contest the admissibility of this evidence after the voir dire was completed.
[23] Counsel for the accused cross-examined Kristen Desjarlais on other issues referred to in her video statement. Kristen Desjarlais had mentioned seeing three Asian males. She testified that only two of those three were involved in the altercation. She said the third guy was “just wasted…wasn’t really involved at all.” She said one of the two Asian males said his name was Jimmy. He wore black clothing and was approximately 25 years old. He was definitely younger than the other Asian male who was between 35-37 years old. The older man was the one who held the knife. She was “really sure” that the older man was wearing black shorts with a red t-shirt. She recalled that he had a red tattoo or cut on his arm. She did not recall that it was raining when she left the bar as the altercation unfolded.
Evidence of Graham Fleming
[24] Graham Fleming is twenty-five-years old. He observed some of the events outside the bar that early morning. He had no prior connection with either accused or either complainant.
[25] Graham Fleming had been drinking alcohol with friends on a patio at a nearby bar. After they left the patio he heard a commotion on the street. He observed a black man and woman involved in a “big fight” with two Asian men. It appeared that each of the black man and woman were fighting with one of the Asian men. The woman and one Asian then split up. Graham Fleming got between the black man and the other Asian and tried to push them apart.
[26] Graham Fleming did not actually see the two Asian men leave the scene but at some stage he was alone with the black man and woman. There was blood visible on both of them. He observed injuries to both.
[27] Graham Fleming did not see any weapon or bottles involved in this incident. He could not describe the two men, other than to say they looked to be Asian. He could not distinguish between them in any way.
Police Contact with Both Accused After the Altercation
[28] Shortly after the altercation occurred, police located both accused sitting on a porch at a nearby residence. Yeshi Wang Chuk was wearing a white t-shirt covered in blood. He had a cut to his right hand near his pinkie finger. Jigme Yeshi had a 3.5 inch laceration to his forearm.
Admission by Yeshi Wang Chuk
[29] Yeshi Wang Chuk admitted pursuant to s. 655 of the Criminal Code that he was present and involved as one of the Asian males involved in the altercation with Jamal Graham and Sheanna Williams.
Analysis
[30] There was no evidence called by either accused. There was no obligation on either to do so. The onus is on the Crown to prove the essential elements of each allegation beyond a reasonable doubt.
[31] In assessing the evidence of the various civilian witnesses, I have considered the following:
(1) the impact on memories of the lapse of time between the events of July 4, 2013 and the trial commencing in October 2016;
(2) the two complainants and Kristen Desjarlais, a critical witness, were at varying degrees of self-induced intoxication as events unfolded;
(3) Jamal Graham has a substantial criminal record, including crimes of violence up to and including attempt murder. His criminal record is relevant to an assessment of his credibility as well as a propensity for violence; and
(4) The alleged assaults involving a knife and causing very serious injuries to the two complainants occurred in a brief but intense altercation.
[32] The onus of proof and standard of reasonable doubt do not apply to individual pieces of evidence. They relate to a consideration of the totality of the evidence; R. v. Morin, [1988] 2 S.C.R. 345 at paras. 21 and 28.
[33] For reasons that I will refer to, I find that the following has been proven:
(1) Jamal Graham became involved in a verbal and likely physical exchange with Jigme Yeshi and Yeshi Wang Chuk at the door of the bar as Jamal Graham was leaving with Sheanna Williams;
(2) Jamal Graham may well have instigated this initial exchange;
(3) Yeshi Wang Chuk produced a small knife from his pocket, looked at Jigme Yeshi and signaled for the two of them to pursue Jamal Graham outside the bar;
(4) Yeshi Wang Chuk and Jigme Yeshi caught up to Jamal Graham outside and both attacked Jamal Graham. Yeshi Wang Chuk used the knife to injure Jamal Graham during the incident. Sheanna Williams got involved to assist Jamal Graham and was also stabbed by Yeshi Wang Chuk;
(5) Yeshi Wang Chuk and Jigme Yeshi quickly left the scene with injuries incurred during the struggle with Jamal Graham; and
(6) Yeshi Wang Chuk and Jigme Yeshi were located together by police not far away shortly after the altercation. Yeshi Wang Chuk wore a white t-shirt covered in blood.
[34] Jamal Graham and Sheanna Williams were both significantly intoxicated by the time they chose to leave the bar. In assessing their evidence, I have also considered Jamal Graham’s criminal record as relevant to his credibility and violent propensity. Neither of them have ever claimed that they could identify whomever was involved in the violent altercation. Neither of them claims to have seen a knife or any other type of weapon during the altercation. Both of them suffered serious injuries, including several stab wounds to Jamal Graham’s back. Proof that it was the two accused who were involved does not depend on their evidence.
[35] Kristen Desjarlais was intoxicated as these events unfolded and was hung over some 12 hours later when she was interviewed by police. Her memory was obviously much better then as opposed to the trial date. There are some discrepancies in her evidence but on the core issues I found her to be reasonable, reliable and accurate. The defence quite properly focused on reliability issues rather than credibility related to her evidence. She was unconnected to the two accused and the two complainants before July 4, 2013. She had some brief dealings with the two accused in the bar that night. In the early afternoon of July 4, 2013, she identified the two accused out of two photo arrays as the two Asian men involved.
[36] Kristen Desjarlais accurately and fairly described Jamal Graham as the aggressor in the initial incident at the door, including Jamal Graham slapping or punching one of the two Asian males. She described the actions of Jamal Graham as unprovoked. As Jamal Graham then went out the door with Sheanna Williams, Kristin Desjarlais observed a critical interaction between the two Asian males. The older man pulled out what looked like a switchblade knife with a blade 2” or 3” long. He held it in his fist and at his side. That man then motioned to the other man to go outside with him. I am satisfied beyond a reasonable doubt that it was Yeshi Wang Chuk (the older man she later identified from the photo array) who produced the knife and motioned to Jigme Yeshi to go with him outside. In the circumstances, I find the two of them went out together, both knowing that one had a small knife, to attack the man who had been aggressive with them moments earlier.
[37] There is a discrepancy in the evidence of Kristen Desjarlair related to the clothing worn by the older man (Yeshi Wang Chuk), as well as whether he had a tattoo. That discrepancy is not fatal to her identification of Yeshi Wang Chuk as the older man with the knife. There is also the evidence that Yeshi Wang Chuk was selected by her from the photo array. Further, Yeshi Wang Chuk has admitted that he was present and involved in the altercation.
[38] The two complainants did not see a knife or any other weapon before, during or after the incident. Kristin Desjarlais described seeing a knife with a short blade. Such a weapon is easily carried, easily concealed and may well not be visible even to someone on the receiving end of stab wounds. I find that is what happened in this case.
[39] Jigme Yeshi and Yeshi Wang Chuk were together in the bar and at the door as Jamal Graham and Sheanna Williams went to leave. The two accused were disrespected and likely assaulted by Jamal Graham. In the moment after Jamal Graham and Sheanna Williams left the bar, the knife was produced and, on a signal, both accused hurried out with the joint intention of attacking Jamal Graham. Jigme Yeshi knew Yeshi Wang Chuk had a knife, certainly when he saw it held by Yeshi Wang Chuk, and intentionally went with Yeshi Wang Chuk to deal with Jamal Graham. Whatever the provocative or aggressive acts by Jamal Graham, there was no justification for the two accused to attack him in the way they did. The multiple stab wounds to Jamal Graham’s back belie any possible notion of self-defensive actions by either accused.
[40] I am satisfied beyond a reasonable doubt that the two accused pursued and attacked Jamal Graham outside the bar. They out-numbered him. That caused Sheanna Williams to intervene to assist Jamal Graham. She would not have done so if she knew that the two attackers also had a weapon in use.
[41] After Jamal Graham left the bar, Yeshi Wang Chuk drew the knife and held it in his fist. Kristin Desjarlais has testified and I accept that Yeshi Wang Chuk then signaled by a gesture for Jigme Yeshi to go with him in pursuit of Jamal Graham. In the moment this signal was given, Jigme Yeshi must have been facing Yeshi Wang Chuk and was very close to him. I am satisfied that Jigme Yeshi knew that Yeshi Wang Chuk held the knife in his hand for use in the impending attack on Jamal Graham. The two had together formed the intention of assaulting Jamal Graham with the objective foreseeability of bodily harm related to use of a knife. Thus, they were joint principles under s. 21(1)(a) of the Criminal Code: R. v. Spackman, 2012 ONCA 905 at paras. 180 and 181; R. v. Kennedy, 2016 ONCA 879 at para. 23. Even though Jigme Yeshi did not brandish or use a knife, he knew Yeshi Wang Chuk would and carried through on the intended attack.
Result
[42] I find that all five counts have been proven beyond a reasonable doubt. Convictions will be entered for both accused on counts one and two (aggravated assault contrary to s. 268 of the Criminal Code). Based on the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729, counts three to five inclusive are stayed.
B. P. O’Marra J. Released: August 18, 2017
COURT FILE NO.: CR-14-10000421-0000 DATE: 20170818 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JIGME YESHI AND YESHI WANG CHUK Defendants REASONS FOR JUDGMENT B. P. O’Marra J. Released: August 18, 2017