Court File and Parties
COURT FILE NO.: CR-14-2045 DATE: 2017/01/19 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Anthony Nathan Constant-Booth Accused
Counsel: Matthew Geigen-Miller, for the Crown Robert Carew, for the Accused
HEARD: January 9-10, 12-13 and 17, 2017 (Ottawa)
REASONS FOR JUDGMENT
Parfett J.
[1] The Accused, Anthony Constant-Booth is charged with one count of assault, contrary to s. 266 of the Criminal Code, one count of assault causing bodily harm, contrary to s. 267(b) of the Criminal Code and one count of aggravated assault, contrary to s. 268(2) of the Criminal Code. He pleaded not guilty to all three charges.
Background
[2] In the early morning hours of May 25, 2014, a group of friends went to the McDonald’s restaurant at the intersection of Baseline Road and Navaho Drive in the City of Ottawa. It was approximately 3am and the restaurant was busy with late-night revellers.
[3] There was a dispute of some sort between two customers and the manager. They were holding up the line of customers waiting to order food. Some of these customers started yelling at the two trouble-makers to leave the restaurant and eventually they did.
[4] When the group of friends left the restaurant, they were accosted in the parking lot by several men, none of whom they knew. When the altercation was over, one of the groups of friends had a black eye, one had a long gash on his forehead and the third suffered a seriously broken jaw.
[5] The issue for this trial was whether this accused was one of the men involved in the altercation and more specifically, whether he was one of two men who attacked Pascal Marion, kicking him in the face and breaking his jaw.
[6] For the reasons that follow, I am persuaded beyond a reasonable doubt that he was involved in the assault on Pascal Marion. However, I am not persuaded beyond a reasonable doubt that he was a party to the other two assaults.
Evidence
Joel Deslaurier
[7] Around 7pm on Saturday, May 24, 2014, Mr. Deslaurier and his girlfriend, Amelie Labrosse went to a concert. They left at around 11pm and met with up with other friends – Pascal Marion, Isaiah Aspeck and others. There was a party next door, so they all went to that party. At around 2:45 to 3am, they decided they wanted a snack so they went to a nearby McDonald’s restaurant. This restaurant was located at the corner of Baseline Road and Navaho Drive in Ottawa and was the only one open at that time of the night.
[8] While they were sitting and eating, Mr. Deslaurier noticed a commotion between a customer and a cashier. The restaurant was very busy and crowded that night. He could hear an argument where the customer was seeking a refund because his food was taking too long to be served. The customer was black and wearing a red shirt. Some other customers were also complaining. Ultimately, a manager came along to resolve the situation.
[9] At around 3:15am, the group of friends left the restaurant. They were walking past the drive-through lanes when Mr. Deslaurier saw three people get out of a car parked nearby. The three men ran towards Mr. Deslaurier and his friends. Mr. Deslaurier described the men as being a white man with sandy coloured hair wearing a white tank top and shorts, a Middle Eastern looking man with short spiky hair and a black man who was 5’8” – 5’9”, short hair, 180lbs and wearing a sleeveless black shirt.
[10] Mr. Deslaurier testified that the three men were yelling that his group of friends were ‘the guys’ who had ‘chirped’ them. The white man punched Isaiah Aspeck. Mr. Aspeck did nothing to engage this man. Mr. Deslaurier was sure that only the white man assaulted Mr. Aspeck. However, he agreed that at the preliminary hearing he had said a black man had also assaulted Mr. Aspeck. He corrected that statement during the preliminary hearing and is adamant that only the white man attacked Mr. Aspeck.
[11] Pascal Marion tried to get between the white man and Mr. Aspeck but the black man punched him.
[12] Two other men had joined the three men. According to Mr. Deslaurier, they were both black. One of these men was the one who had been in the earlier dispute in the restaurant. This man was never involved in the assault. On cross-examination, Mr. Deslaurier conceded that he had been uncertain at the preliminary hearing whether this black man was the man in the dispute in the restaurant. According to Mr. Deslaurier, this particular man was trying to tell the remainder of the attacking group that they had the wrong people, but he conceded on cross-examination that he could not be sure it was this man who said that.
[13] Mr. Deslaurier also indicated that the other black man was very tall – approximately 6’4” – with a heavy, athletic build wearing a black t-shirt and dark-coloured pants. This man joined in the assault on Mr. Marion. Mr. Deslaurier stated he witnessed this man delivering a blindside punch to Mr. Marion then kick Mr. Marion in the face when he was on the ground. On cross-examination, Mr. Deslaurier agreed that after he was choked, he was on the ground and his view of the proceedings was limited. However, he insisted he did see the larger black male kick Mr. Marion.
[14] The Middle Eastern looking man approached Mr. Deslaurier and punched him. This same man then choked him until he fell to ground. The attacker stomped on the back of his head and his face hit the concrete. As a consequence, Deslaurier suffered a significant gash to his forehead.
[15] The attack did not last more than 30 seconds to a minute. Police and ambulance arrived and both Mr. Deslaurier and Mr. Marion were taken to hospital to treat their injuries. Mr. Deslaurier received stitches to his forehead and had bruising on his face.
[16] After the incident was over, he saw two of the people involved talking to police. They were the white man and the very tall black man. He testified that he did not know where the other people involved had gone once the incident was over. On cross-examination, he agreed that at the preliminary hearing, he had testified that he saw the white man and the Middle Eastern looking man talking to police after the incident was over. Mr. Deslaurier waffled on who he saw talking with police. Initially, he said he was sure it was the white man and the tall black man; he then decided that it was the Middle Eastern looking man and the tall black man.
[17] In cross-examination, Mr. Deslaurier conceded that he had been drinking that night, but indicated he had only had five beers over the course of the evening. He agreed that the house party had been broken up when police arrived to deal with a complaint, but that he had not mentioned this fact in his testimony or at the preliminary hearing.
[18] Mr. Deslaurier agreed that he was aware that two of the attackers have since pleaded guilty to the assaults on him and on Mr. Aspeck, but he denied that this fact has influenced his testimony at trial concerning who did what to whom. He also agreed that he and the other civilian witnesses have discussed this matter, but indicated that no details were shared and whatever was said did not influence his testimony.
Isaiah Aspeck
[19] Mr. Aspeck confirmed that he was part of the group that went to the McDonald’s restaurant after attending a house party. Police had been called to that party for some reason, after which the party broke up.
[20] At approximately 3am, the group of friends arrived at the McDonald’s. They ate and while they were eating there was an argument between two customers and a manager. He indicated that other people in the line-up, who were annoyed by the delay, were yelling at the two customers to leave the restaurant.
[21] Mr. Aspect identified the two customers who were involved in this dispute as the same two men who appear in Exhibit #2. He testified that he saw them leave the restaurant together.
[22] Once the group finished eating, they left the restaurant and were walking towards Deerfield Drive. He saw a group of people shouting and approaching their group. The approaching group were saying that ‘their guy’ had been ‘struck’. There were five persons in this group and they were coming from two cars parked closer to the Home Depot store. He did not see these men arriving in cars, but did see some of them later standing near a car.
[23] He testified that he recalled a short, white guy was leading the group, but does not recall any details about any of the other people. The white male struck him and he fell down. He does not recall Mr. Marion coming to his assistance. A short while later a Middle Eastern looking male with a short, spiky hairstyle tried to kick him. Immediately after that, someone else grabbed him from behind and began to choke him. This person was a black male wearing a salmon-coloured t-shirt and was the same man who had been in the restaurant. Once he was on the ground, he did not see anything that happened to anyone else.
[24] The altercation ended when the police arrived. Once the incident was over, he saw Mr. Deslaurier on the ground with a long gash on his forehead. Mr. Marion was getting up and had a swollen jaw. He also saw one car drive off and three men were standing outside another vehicle. These three men had been involved in the altercation and were the short white male, the Middle Eastern looking man and the large, black man. Although Mr. Aspeck was able to say five men were involved in the attack, he was unable to give a description of the fifth male.
[25] Mr. Aspeck stated that he never saw what happened to the others in his group and consequently, he was unable to state what, if anything, the large, black male had done during the altercation. However, he did state that Mr. Marion was yelling at this man and his friends and this man responded, ‘you don’t want to do this with me. Big mistake.’ The large, black man was tall, full-figured, short-haired and wearing a black shirt and pants.
[26] Mr. Aspeck indicated that he received a black eye as a result of this altercation.
[27] On cross-examination, Mr. Aspeck conceded he had been drinking that night and stated he had consumed approximately six beers.
Pascal Marion
[28] Mr. Marion confirmed that he and the other people mentioned previously all went to the McDonald’s restaurant at approximately 3am to get some food. He witnessed an altercation between two customers and an employee. He testified that other customers were annoyed and were telling them to leave. Ultimately, the pair did leave. He indicated he saw them get into a car but did not see it leave.
[29] After eating, Mr. Marion and his friends left the restaurant. Mr. Aspeck was in front and a man came up to him. Mr. Marion stated he heard someone say ‘they messed with my boys’. Mr. Aspeck was then hit by a white guy and Mr. Marion tried to intervene, but he was hit and fell down. Mr. Marion testified that he pushed the white man who had punched Mr. Aspeck and then he was hit from the side and fell down.
[30] Mr. Marion testified that more than one person was involved in this altercation. It was a group of people who came towards them. There were four or five people in this group. He noticed one white man, an Arabic looking man and a black man. He cannot recall details of the other two people.
[31] Mr. Marion indicated that he does not know who hit him other than it was not the white guy. Once he was hit, he fell down. He kept trying to get up and was pushed back down. He received a kick to his face that he believes broke his jaw. His view of events was limited, but he stated that he saw Mr. Aspeck being choked by the same white man who initially punched Mr. Aspeck. Although he was aware Mr. Deslaurier was being assaulted he was unable to provide any details.
[32] The incident ended when Ms. Aurora Green jumped in front of him and yelled for everyone to stop. Mr. Marion said that he got up and proceeded to yell profanities as the other group was leaving. He was unaware that he had been seriously injured until later.
[33] Mr. Marion’s injuries consisted of a badly broken jaw that required reconstructive surgery as well as bruising to his face.
Constable Trevor Burgess
[34] Cst. Burgess was parked in the Home Depot along with two other officers, each in their own cruiser. They were all approximately 200 meters from the McDonald’s restaurant. He was writing notes from a previous incident.
[35] At approximately 3:22am, he observed two vehicles pull into the McDonald’s parking lot at a high rate of speed. One vehicle was a dark coloured sedan and the other was a silver SUV. He indicated that his windows were open and he heard a commotion occurring near the McDonald’s restaurant. He also saw a group of people running towards the drive-through where there was a second group of people. As a consequence, he drove his cruiser over to the area to investigate.
[36] By the time he arrived in the parking lot no more than two minutes had elapsed. He saw three men walking towards a car, two more men walking away and another group of people around the drive-through area. The silver SUV was leaving the area and he was unable to say whether any of the occupants of this vehicle had anything to do with the altercation. He also indicated he did not see any part of the altercation.
[37] He decided to speak to the three men. One male was white, wearing a tank top and was identified as Thomas Crippen. A second male was Middle Eastern looking and was identified as Andrew Bailey. The third male was black and was identified as the accused, Anthony Constant-Booth.
[38] It appeared to him that all three men were breathing heavily and were anxious to leave. However, they were walking towards the car. None of the men appeared to have any injuries. Cst. Burgess testified that he did not recall any of the car doors being open.
[39] After speaking briefly with these men, he went over to the other group and observed that two of them had suffered significant injuries, so he arranged for an ambulance to attend.
[40] Cst. Burgess stated that he spoke to Ms. Aurora Green and that she advised him that the man later identified as Andrew Bailey, was the person responsible for kicking Mr. Marion. She also told him that approximately six men had been involved. She was unable to say who had kicked Mr. Deslaurier. He spoke to the other people present and none of them indicated that Mr. Constant-Booth was involved in the altercation.
[41] In re-examination, Cst. Burgess said that his conversation with Ms. Green was very brief and informal and that her identification of who was involved in the altercation consisted solely of pointing to the group of three men with whom he had been speaking. It was he who concluded that she was indicating Mr. Bailey and Mr. Crippen as having been involved.
Constable Timothy McEwen
[42] Cst. McEwen stated that he was on duty May 25, 2014 at around 3:22am. He was on general patrol and was in the Home Depot parking lot along with Cst. Thompson and Cst. Burgess preparing a report. Cst. Burgess said he could hear some sort of incident in the McDonald’s lot. Cst. McEwen indicated he could hear, but not see, a vehicle moving at a high rate of speed. He also could see a group at the McDonald’s but not what was happening. All three officers left the Home Depot lot to investigate. Cst. McEwen indicated that Cst. Burgess arrived first, but he and Cst. Thompson arrived moments later.
[43] Cst. McEwen said he could see a dark vehicle with its doors open parked on a northwest angle facing the McDonald’s. He parked his cruiser so as to partially block the vehicle. He recognized the three men who were approaching the vehicle as Thomas Crippen, Anthony Constant-Booth and Andrew Bailey. He spoke with Mr. Bailey and noticed that Mr. Bailey and Mr. Crippen were flushed in the face and out of breath. He testified that because of his skin tone he could not tell if Mr. Booth was also flushed in the face, and did not notice whether he was breathing hard.
[44] As he was speaking to these men, Cst. Burgess was talking to the victims. Cst. Thompson was speaking to two other men who seemed to be leaving quickly and were near the Tim Horton’s. He joined Cst. Thompson who was dealing with these other two men. They were subsequently identified as Shaquille Booth and Kyle McEachern-Brennan-Brennan. Anthony Constant-Booth and Shaquille Booth are brothers.
[45] Cst. McEwen later viewed a videotape from inside the McDonald’s restaurant and he was able to identify the two customers involved in the dispute in the restaurant as Shaquille Booth and Kyle McEachern-Brennan-Brennan.
[46] All five men he dealt with were cooperative.
Aurora Green
[47] In the early morning hours of May 25, 2014, she was with Pascal Marion, Joel Deslaurier, Isaiah Aspeck and others. They had been at a party and decided to go to the McDonald’s restaurant at Baseline and Navaho for something to eat. They sat near the rear of the restaurant and later left through a door near the drive-through. She indicated that she was aware there had been an argument in the restaurant, but she did not see anyone and could not say whether the people involved in the argument were later involved in the altercation in the parking lot.
[48] They were at the drive-through when they saw a car arrive in the parking lot. A short white guy got out and approached the group. He said ‘you’re the guys that were chirping my friend’. They did not understand and asked him what he meant. This man then punched Mr. Aspeck.
[49] At that same time, Mr. Marion and Mr. Deslaurier went towards Mr. Aspeck. Mr. Marion went to the left and Mr. Deslaurier went to the right. Then Mr. Marion was thrown back a couple of feet and landed on the ground. He had been punched by a taller black man in a black t-shirt. Mr. Marion got up to his knees and was punched in the stomach by the same black man. Another man who was shirtless kicked Marion. Ms. Green was unable to say where the shirtless man had come from. The tall black man also kicked Mr. Marion in the face.
[50] She stepped off the curb, stood in front of Mr. Marion and yelled stop. She heard someone yell ‘cops’. The shirtless male ran off across Navaho street. Also present at the scene was a male with a red t-shirt. He stepped into the fray and tried to stop the assault by putting his hands up.
[51] The three men – a black male wearing a black t-shirt, a short white male wearing a white tank top and another man in a grey t-shirt who had been fighting with Joel Deslaurier all ran back to their car. When she looked over, the police were speaking with them.
[52] She stated that she was paying the most attention to what was happening to Mr. Marion who was her boyfriend at the time. She saw Mr. Aspeck punched, but never saw anyone choking him. In addition, she stated that she saw Mr. Deslaurier’s head pushed into the ground by the Middle Eastern looking man, but again she never saw him being choked. She agreed that she had said at the preliminary hearing that she saw Mr. Deslaurier being choked, but testified she did not now recall this and conceded it could have been something she was told by others.
[53] She had not been drinking that night. She indicated that everything occurred in close quarters and was over very quickly. When she stepped in front of Mr. Marion and yelled stop, the black man ran off towards the car. She looked at Mr. Marion, then looked back towards the black male and she saw him at the car. She only looked away for 3-4 seconds at most. Ms. Green testified that there was no other black male in a black t-shirt. She also noticed that this man was much bigger than everyone else. He was very tall and wide and she recalls him towering over Mr. Marion.
[54] After the altercation stopped, she assisted both Mr. Marion and Mr. Deslaurier to clean themselves up. The police came over to their group and talked to them after talking to the three men at the car. An ambulance was called and took Mr. Deslaurier and Mr. Marion to the hospital.
[55] In cross-examination, Ms. Green agreed that the group had discussed the events of that night but did not share any details as to what they recalled happening to each person. She testified that she was also aware that two of the three men had pleaded guilty, but she was not advised what their specific involvement was.
[56] The police made it clear to her that they knew the men but according to Ms. Green they did not suggest that these men were necessarily guilty.
[57] Ms. Green agreed in cross-examination that she could not give a detailed facial description of the persons involved. She agreed that all she was able to do was describe the race, clothing and hair of the individuals. She saw a Middle Eastern looking man talking to police, but she does not recall saying to police that this man was the one who kicked Mr. Marion. She did say that these men were involved in the attack. She also told them that the white man hit Mr. Aspeck. In addition, she testified that she told police another white male, who was shirtless hit Mr. Marion. Mr. Marion was on the ground at the time. She indicated that the car the three men returned to was behind her right shoulder and still in her peripheral vision as she faced the Tim Horton’s. When she stepped in front of Mr. Marion, the police had not yet arrived, but shortly after that she heard someone yell ‘cops’ and saw cruisers coming across the parking lot from Navaho drive.
[58] It was put to Ms. Green in cross-examination that she had testified that she was not sure that the three men speaking to police were the same three men who had been involved in the altercation. Ms. Green insisted that she is very sure they were the same men. These men were out of her sight for only a few seconds. Ms. Green stated that there was only one black man present and involved in the altercation. The other men were either white or light brown. She indicated that she is very sure that the man kicking Mr. Marion while he was on the ground was a tall, black man. However, she conceded that she did not see the entire series of events as she was focussed on what was happening to Mr. Marion.
[59] It was also put to Ms. Green in cross-examination that at the preliminary inquiry she had suggested that six men were involved in the altercation and possibly even more. Ms. Green stated that to the best of her recollection only five men were involved: a black man, two white men, two brown men, one of whom appeared Middle Eastern.
Jason Krukowski
[60] Mr. Krukowski testified for the defence. He is a friend of the accused, the accused’s brother Shaquille Booth, Kyle McEachern-Brennan and Thomas Crippen. He knows them all from having played hockey with them for many years.
[61] On May 25, 2014, he went to pick up his sister and his brother-in-law from a bar in the Byward Market area of Ottawa. When he arrived, Shaquille Booth and Kyle McEachern-Brennan were also at the bar, so he offered them a lift home. On the way, his sister decided she wanted something to eat, so they all went to the McDonald’s restaurant at Baseline and Navaho.
[62] He was driving a silver SUV that night and he went to the drive-through to order his food. Mr. McEachern-Brennan and Shaquille Booth went inside. He became aware there had been some sort of argument in the restaurant because Mr. McEachern-Brennan later told him the manager had refused to serve them. Mr. McEachern-Brennan was angry at this turn of events.
[63] Once he received his food, he parked his car in the line of spots nearest the Home Depot parking lot. As he was eating, he saw a car turn into the parking lot and park at an angle near the drive-through. Three men got out of this vehicle. Two of the men moved off towards the drive-through. He did not immediately recognize these men, but when they returned to their vehicle he realized they were Andrew Bailey and Thomas Crippen. One man stayed by the vehicle and he knew him as Anthony Constant-Booth.
[64] Mr. Krukowski testified that he was aware of some sort of altercation near the drive-through, but he never saw enough of this incident to be able to say what precisely occurred or who did what to whom. He indicated that it was too dark to see much other than that a fight occurred. He also testified that the incident was very unusual in his experience and when he realized that it involved people he knew, he was annoyed.
[65] Mr. Krukowski stated that the altercation was over very quickly when police arrived. Shortly after police arrived, he said he left the area. He stated that after he left he dropped off his sister and brother-in-law. Shortly afterwards, he received a call from Shaquille Booth and Kyle McEachern-Brennan asking for a lift, so he returned to the McDonalds, picked them up and left again.
[66] Mr. Krukowski was adamant that Mr. Constant-Booth never moved from the vicinity of his car. He described him as roughly 6 feet tall, a bigger guy, approximately 300lbs, broad shoulders, heavy build, overweight.
[67] In cross-examination, he indicated that Mr. Constant-Booth’s car was not in a parking spot but was stopped very close to the drive-through. Mr. Constant-Booth’s car was approximately 25 feet ahead of him and he had a clear view of Mr. Constant-Booth. He testified that there was no doubt it was Mr. Constant-Booth he saw. He conceded that he had no idea how it happened that Mr. Constant-Booth showed up at the McDonald’s restaurant at the same time his brother was there and had been involved in some kind of argument.
[68] Shaquille Booth and Kyle McEachern-Brennan left the restaurant together, but he does not know where Shaquille Booth went after that. He indicated that Kyle McEachern-Brennan came over to his car and was standing at the driver’s side window talking to him. He initially stated that he left approximately two minutes after the police arrived. He denies that it was possible that he left the parking lot just as the police arrived. In addition, he stated that he was still speaking to Kyle McEachern-Brennan when he left the parking lot. When it was pointed out to him that it made no sense that he would leave Kyle McEachern-Brennan standing in the lot when Kyle McEachern-Brennan clearly needed a lift home and lived right next door to him, Mr. Krukowski changed his story and said that he was unsure where Kyle McEachern-Brennan went after he left the McDonald’s.
[69] Mr. Krukowski testified that he was not paying attention to the altercation despite the fact it was occurring immediately in front of him and was a very unusual event, about which he was curious. On the other hand, he was adamant that he was aware of Anthony Constant-Booth’s whereabouts at all times despite the fact he indicated he had no reason to track Mr. Constant-Booth’s movements. He indicated that while he was aware of Mr. Constant-Booth’s location, he could not provide any information concerning what Mr. Constant-Booth may have been doing.
[70] In his version of events, Anthony Constant-Booth was not a direct participant in the altercation, although he conceded that Mr. Constant-Booth was involved to the extent of driving Mr. Bailey and Mr. Crippen to the scene.
[71] Mr. Krukowski conceded that he and Kyle McEachern-Brennan have spoken about this matter. However, he insisted that Kyle McEachern-Brennan never told him his version of events. He indicated that it was Kyle McEachern-Brennan who told him that he might be a witness in this case.
Issue
[72] In this case, the key issue is the credibility or reliability of the witnesses who place this accused at the scene, participating in the assault. The Defence called evidence and therefore, the principles as set out in R. v. W.D. apply.
[73] If I accept Jason Krukowski’s evidence that the accused remained beside his car throughout the altercation, then I must acquit. If I do not accept Mr. Krukowski’s evidence, but if it leaves me with a reasonable doubt about the accused’s guilt, then again I must acquit. Finally, even if Mr. Krukowski’s evidence does not leave me with a reasonable doubt concerning the accused’s guilt, I can convict only if the rest of the evidence that I accept proves his guilt beyond a reasonable doubt.
Analysis
[74] This is a case where the credibility and reliability of the witnesses is crucial. Both counsel agreed – as do I – that all of the witnesses were credible. It is their reliability that is the real issue.
[75] In assessing the reliability of the witnesses, it is important to keep certain factors in mind. Does their testimony make sense when looked at its entirety and when looked at in the light of other evidence? Are there consistencies between the witnesses’ testimony? If there are inconsistencies between witnesses or within the testimony of a witness, are those inconsistencies on major elements of the case? Is there a motive to lie? Is there any corroboration of a witness’ testimony? These factors will not all be relevant to every witness’ evidence, but where these factors are relevant, they must be examined.
[76] Jason Krukowski was a well-spoken, well-meaning witness, but aspects of his testimony did not make sense. As noted earlier, he initially testified that Kyle McEachern-Brennan was standing immediately outside the driver’s side window until the moment he left. It was pointed out to him that given Mr. McEachern-Brennan needed a lift home; it did not make sense that he would leave him standing there. Mr. Krukowski changed his story. The evidence of Cst. McEwen is that he saw two men walking towards the Tim Horton’s restaurant and that Cst. Thompson went off to speak to them. Those two men were subsequently identified as Shaquille Booth and Kyle McEachern-Brennan. I accept this evidence and consequently, it is not possible that Mr. McEachern-Brennan was standing next to Mr. Krukowski’s car when the police arrived. Moreover, it seems highly unlikely that with a very unusual incident occurring immediately in front of him, that Mr. Krukowski’s attention would have been on Mr. Constant-Booth such that he could state with certainty that he never moved from that location. In the circumstances, I do not accept Mr. Krukowski’s evidence concerning Anthony Constant-Booth’s location during the altercation. Furthermore, his evidence does not leave me with a reasonable doubt.
[77] None of the Crown witnesses involved in this assault were asked to identify the participants in a photo line-up or parade. None of the witnesses could do more than give a general description of the assailants, such as gender, race, hair style, and clothing. If this were the sum of the eyewitness identification, it would be too weak to make any finding concerning the identity of the assailants. However, it was not. The identification of three of the participants in the assault rests on the fact that the police arrived on the scene within moments of the altercation ending. They stopped three men who they observed were leaving the vicinity of the altercation and who witnesses at the scene were able to say, had been involved in the assault.
[78] The three victims of this assault – Isaiah Aspeck, Joel Deslaurier and Pascal Marion all testified. The weaknesses in their evidence stem from the fact they were directly involved in the altercation. They had limited opportunity to observe and their ability to recall events was affected by their injuries and the fact their priority at the time was self-defense. Consequently, I accept only limited portions of their testimony. In particular, as it relates to Anthony Constant-Booth’s participation, I accept Mr. Aspeck’s evidence that three of the men involved in the attack were later standing beside a parked car talking to police.
[79] I found Aurora Green’s evidence to be reliable. She had the best opportunity to observe. She was not involved in the assault. She focused on the assault of her then boyfriend, Pascal Marion and had a clear view of that particular assault. She was standing close to where the assault occurred. She did not try to embellish her evidence and when she did not know something, she conceded that fact. On the other hand, her evidence was not perfect. She had been unsure in earlier testimony how many people in total were involved in the altercation. In addition, there was evidence from Cst. Burgess that Ms. Green had pointed to Andrew Bailey as the one who assaulted Mr. Marion. Ms. Green flatly denied she had ever identified Mr. Bailey as the one who assaulted Mr. Marion. Cst. Burgess agreed on re-examination that Ms. Green’s identification of who was involved in the assault consisted solely of pointing to the group of three men with whom he had been speaking. He stated that it was he who concluded she was pointing to Mr. Bailey as the primary person involved in the assault on Mr. Marion. In the circumstances, I have no difficulty finding that Ms. Green has never deviated from her identification of Mr. Booth as the man who kicked Mr. Marion and I accept her evidence on this point. I also accept her evidence that Mr. Booth was one of two men who assaulted Pascal Marion and more particularly that Mr. Booth kicked Mr. Marion in the face.
[80] Cst. Burgess testified that when he arrived on scene he saw three men walking towards a parked car. Those men were identified to him as Andrew Bailey, Thomas Crippen and Anthony Constant-Booth. He indicated that all three men were breathing heavily. Cst. McEwen also testified that he saw three men approaching a parked vehicle. All three men were known to him. He stated that only Mr. Bailey and Mr. Crippen were breathing hard and both had flushed faces. He said that he could not tell if Mr. Constant-Booth was also flushed due to his skin tone. I accept this evidence. Furthermore, this evidence supports Ms. Green’s evidence and Mr. Aspeck’s evidence that they saw three of the men involved in the assault run to a parked car and later speak to police.
[81] As noted earlier, I accept beyond a reasonable doubt the evidence that it was Mr. Anthony Constant-Booth who was one of the men who assaulted Pascal Marion. I also conclude beyond a reasonable doubt that Mr. Booth’s involvement in the assault consisted of kicking Mr. Marion in the face when he was on the ground. Defence conceded during the trial that the injuries received by Mr. Marion met the definition of aggravated assault. Consequently, I find the Crown has proven beyond a reasonable doubt that Mr. Constant-Booth is guilty of aggravated assault.
[82] The next issue to resolve is whether Mr. Booth was also a party to the other two assaults.
[83] Section 21 of the Criminal Code provides:
(1) Everyone is a party to an offence who
- actually commits it;
- does or omits to do anything for the purpose of aiding any person to commit it; or
- abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[84] The Crown submits that the evidence demonstrates that the three men: Mr. Bailey, Mr. Crippen and Mr. Constant-Booth arrived at the scene to assault the persons they believed had yelled at Mr. Constant-Booth’s brother, Shaquille Booth while he was involved in a dispute inside the McDonald’s restaurant. Ultimately, they attacked the wrong group of people. Defence points to the fact that there is little, if any, evidence to support this assertion.
[85] The evidence in support of the Crown theory is that:
- Shaquille Booth was one of the two people involved in a dispute inside the restaurant;
- The Accused is Shaquille Booth’s brother;
- The Accused, Mr. Bailey and Mr. Crippen arrived at the restaurant within minutes of the dispute inside the restaurant;
- Mr. Crippen is alleged to have yelled at the victims’ group words to the effect that they had ‘chirped’ their ‘boy’; and
- Shaquille Booth did not participate in the assault and may have tried to stop it or may have said the others had the wrong people.
[86] The Crown contends that Mr. Crippen started the assault in order to redress some perceived wrong done to Shaquille Booth by other customers in the restaurant and that Mr. Constant-Booth assisted him in that venture.
[87] There is no question that the Accused and his friends arrived at the restaurant at the same time that Shaquille Booth was present. However, there is no evidence concerning why they came to the restaurant. The witnesses do not agree on what Mr. Crippen may have said or whether he said anything at all. Even if he did say something to suggest his presence was to redress a perceived wrong done to Shaquille Booth, there is no evidence that Anthony Constant-Booth knew that was his purpose in being there. Nor is there any evidence that Mr. Constant-Booth did anything to assist or encourage Mr. Crippen in carrying out his purpose.
[88] The evidence does show that Mr. Crippen threw the first punch. His target was Mr. Aspeck. Mr. Marion stepped in to protect Mr. Aspeck and pushed Mr. Crippen. Mr. Anthony Constant-Booth then punched Mr. Marion. In my view, this evidence suggests that it is more likely Mr. Constant-Booth was defending Mr. Crippen when he assaulted Mr. Marion rather than carrying out a common purpose.
[89] In short, I am not satisfied there is any evidence that Mr. Booth was a party to the other assaults and I acquit him of those charges.
Conclusion
[90] In conclusion, I find that Mr. Anthony Constant-Booth is guilty of count three on the indictment, aggravated assault in relation to Pascal Marion, but is not guilty of counts one & two on the indictment.