R. v. Mendonca, 2017 ONSC 7118
CITATION: R. v. Mendonca, 2017 ONSC 7118
COURT FILE NO.: CR-17-10000667-0000
DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PHILIP MENDONCA
Accused
Marnie Goldberg, for the Crown
Elham Jamshidi, for the Accused
HEARD: September 11 – 15, 2017
B.A. ALLEN J.
REASONS FOR JUDGMENT
THE CHARGES
[1] This is a case about an altercation that occurred in the early hours of June 28, 2015 at a nightclub, Bloke and 4th (“Bloke”), located in downtown Toronto. The altercation involved a bouncer, Helsham Tolba, who is the complainant and the accused, Philip Mendonca, who was a patron at Bloke. Mladen Miljas, who claims to have also been a patron, was also involved in the altercation.
[2] Mr. Mendonca, age 41, stands charged under the Criminal Code with aggravated assault, assault with a weapon (a glass bottle) against Mr. Tolba and possession of a weapon (a glass bottle) dangerous to the public peace.
BACKGROUND TO ALTERCATION
[3] Mr. Tolba, age 48, had been working at Bloke for about four months when the altercation occurred. He was 6′ tall and about 250 lbs at the time of the altercation. At the time, he had worked as a bouncer for about 18 years. When he was younger Mr. Tolba went to the gym five times a week and could bench press 225 lbs. Since 2013 he bench presses 115 – 130 lbs. and goes to the gym three times a week.
[4] At the time of the altercation in question, Mr. Tolba worked as a full-time security guard by day and a bouncer at night. The nightclub is comprised of four zones. He was in charge of zones 3 and 4 on the evening of June 27th/28th. There is a bar and a DJ booth in zones 3 and 4. There were 12 to 13 bouncers working that evening. Mr. Miljas, another Crown witness, estimated that the nightclub could accommodate about 700 people at full capacity. Mr. Tolba’s job that night was to keep watch on zones 3 and 4 and check the washroom in zone 3 every five to ten minutes.
[5] Mr. Mendonca is 6′ 5″ and weighs 280 lbs. His original plan on June 28th was to go with another friend, Sean, to a birthday party for a friend’s cousin at another nightclub in downtown Toronto. He set out to have drinks and a good time after a hard week’s work. He works in landscaping installing interlocking brick and pouring cement. He testified that he was in a very good mood that evening. Mr. Mendonca had one or two rum and cokes before he and Sean left his home for the party. However, they arrived too late at the nightclub where the party was being held. The line-up to get in was too long. So they left.
[6] Mr. Mendonca and Sean decided to go to another nightclub, Bloke, which is within walking distance of the original venue. This is where the altercation occurred. According to Mr. Tolba, Fridays and Saturdays are the busiest nights at Bloke. The evidence seems to be that June 27th (a Saturday) and the 28th were fairly busy, but not full capacity. Mr. Mendonca and Sean entered Bloke at around 1:00 a.m. They headed straight for the bar. Mr Mendonca testified he was only hanging out with Sean that night. He was not accompanied by any other friends.
[7] The Crown called Mr. Miljas, age 24, as a witness. Mr. Miljas is 6′ 6″and 250 lbs. At the time of the altercation at Bloke, Mr. Miljas had worked as a bouncer at other clubs over a period of five years. He has a black belt in karate and during the last nine years has trained as a professional boxer.
[8] Mr. Miljas testified he was at Bloke that evening with his girlfriend and another couple. Mr. Miljas was facing the entrance at 1:00 a.m. when he saw Mr. Mendonca arrive. Mr. Miljas said he noticed Mr. Mendonca with a group of friends at the bar near where Mr. Miljas was with his friends. Mr. Miljas testified there is a bottle service near to the bar area occupied by other patrons.
THE ALTERCATION
General Impression of Testimonial Evidence
[9] Mr. Tolba’s and Mr. Miljas’ evidence on the altercation was consistent in some areas but diverged in other critical areas. There were also internal inconsistencies with both of their evidence. Also of note are the inconsistencies between prior statements made by these Crown witnesses with their trial evidence.
[10] Mr. Mendonca’s evidence diverged with the Crown’s witnesses on critical aspects of the altercation. With the exception of minor inconsistencies, I find overall that Mr. Mendonca’s evidence was internally consistent. To my mind, Mr. Mendonca was a forthright witness who was not reluctant to admit to things that could be construed as unfavourable to him.
Mr. Tolba’s Evidence
[11] Mr. Tolba testified that he was patrolling zones 3 and 4. He said that when he reached the bar in zone 3, Mr. Mendonca tapped him, but not forcefully, on his left shoulder (“the tapping incident”). He said he observed Mr. Mendonca was hanging out with only one skinny black man. He had never seen Mr. Mendonca before. Mr. Tolba insisted he knew that Mr. Mendonca tapped him on purpose. Mr. Tolba said he could not just walk away even if it was only a light tap. He had to check Mr. Mendonca.
[12] According to Mr. Tolba, Mr. Mendonca and his friend were right beside the bar. Mr. Tolba testified he had observed Mr. Mendonca all night playing with glasses on the bar, spilling their contents on top of the bar. But he said Mr. Mendonca at that time was not bothering anyone. Mr. Tolba said he would only kick someone out of the club if they were overly drunk or interfering with others. He testified that if a patron poured drinks on the floor he would make them leave the club.
[13] Mr. Tolba testified he would expect only a friend to touch him, not a stranger. He asked Mr. Mendonca why he tapped him on his shoulder. According to Mr Tolba, Mr. Mendonca said, but not loudly, that he was just joking. He did not mean it. Mr. Tolba indicated he told Mr. Mendonca to joke with someone he knows and do not touch someone he does not know.
[14] Mr. Tolba said he never threatened Mr. Mendonca. He just “touched” him back in the same way Mr. Mendonca had touched him. Defence counsel pointed out that Mr. Tolba told the police on the day of the altercation that he “pushed” Mr. Mendonca with the back of one of his arms. Mr. Tolba stated he was mistaken when he told the police that. It was a language mistake, he said.
[15] Mr. Tolba testified Mr. Mendonca then got about six inches from his face as if to challenge him. Two or three other bouncers came around when they saw this. Mr. Tolba testified the bouncers circled Mr. Mendonca but did not touch him. According to Mr. Tolba the other bouncers asked if Mr. Mendonca should be ejected from the club. Mr. Tolba testified he told the other bouncers to leave Mr. Mendonca alone because he was not causing a disturbance. So Mr. Mendonca was not kicked out.
[16] Mr. Tolba was confronted on cross-examination with inconsistencies in his evidence at the preliminary inquiry on June 13, 2016 and his statement to the police on the day of the incident. The inconsistencies were in relation to the other bouncers’ reactions to Mr. Mendonca after the tapping incident. Defence counsel pointed out, contrary to his evidence in-chief at trial that Mr. Tolba testified at the preliminary inquiry and told the police that the bouncers came and “grabbed” Mr. Mendonca.
[17] Mr. Tolba attempted to explain away this discrepancy by asserting that he did not mean to say “grabbed”. He meant that the bouncers were close to Mr. Mendonca trying to control him. He then resorted to saying English is not his first language. Defence counsel pointed out that he did not request an interpreter at the preliminary inquiry or at trial and has answered every question asked without a problem understanding English. Mr. Tolba was not able to persuade me there was a language problem. He ended up saying the bouncers may have “touched” Mr. Mendonca.
[18] Mr. Tolba then continued his patrol, checking the washroom. According to Mr. Tolba, within three to five minutes after he left the washroom, Mr. Mendonca came from behind him, from his right side, and within seconds, hit him with a bottle (“the beer bottle incident). Mr. Tolba testified Mr. Mendonca had moved from where he had been when he tapped him. According to Mr. Tolba, when he hit him with the bottle Mr. Mendonca was between zones 2 and 3 near the DJ booth. Mr. Tolba drew a floor plan indicating where he was struck with the bottle.
[19] The bottle struck the right side of Mr. Tolba’s face next to his right eye. At trial he was not certain whether the bottle broke. But to the police he had said he was 100 percent certain the bottle broke. As a result of the blow he began to bleed profusely and fell down on one arm. The bouncers wear earpieces so they can communicate with each other. They also carry flashlights. Mr. Tolba’s earpiece fell out so he could not call for help. He therefore used his flashlight to draw the attention of other bouncers.
[20] Mr. Tolba testified he got up and went to get other bouncers. He returned with two or three of them. When he returned to Mr. Mendonca there were two other bouncers speaking to Mr. Mendonca. The bouncers asked what happened. Mr. Tolba could not speak because of the blood in his mouth. So he pointed to Mr. Mendonca. Then according to Mr. Tolba, Mr. Mendonca punched him one or two times where he had been hit with the bottle. Mr. Tolba testified he had not touched Mr. Mendonca before Mr. Mendonca punched him in the face.
[21] Defence counsel again referred Mr. Tolba to his police statement where he told the police that he “grabbed” Mr. Mendonca and then Mr. Mendonca punched him on the right side of his face. He insisted he meant he pointed to Mr. Mendonca and maybe only “touched him on his hand or something”. This is again contrary to Mr. Tolba’s evidence that Mr. Mendonca punched him first.
[22] Mr. Tolba admitted that at this point he “grabbed” Mr. Mendonca hard and, as they punched each other, they fell to the floor. He testified Mr. Mendonca was on top of him when the bouncers came and took Mr. Mendonca away. He contended he was just trying to defend himself. Mr. Tolba was taken to Toronto General Hospital by ambulance where he stayed for a day.
[23] Photos were taken by the police at the hospital on the same day. Photos of his injuries were made exhibits. A medical report was filed.
[24] The photos show a bump on the upper left side of Mr. Tolba’s forehead, a cut over his right eye, his right eye swollen shut, injuries to the right side of his face and a broken denture. About ten days later Mr. Tolba was admitted to Mount Sinai Hospital for surgery where he remained for five days. The surgeon who performed the surgery testified at trial. I will discuss his evidence below.
[25] Mr. Tolba was shown photos of Mr. Mendonca’s injuries which I will discuss more fully below. Mr. Tolba confirmed that Mr. Mendonca had no such injuries when he first saw him at the club. He denied causing Mr. Mendonca’s injuries. He said he was too weak to attack Mr. Mendonca after the blows to his face. He said he did not see any bouncers or anyone else attack Mr. Mendonca because he (Mr. Mendonca) had been removed from the scene by other bouncers.
[26] Mr. Tolba told the police that after the bouncers took Mr. Mendonca out, “they took care of him. I don’t know what they did to him”. At trial, defence counsel questioned Mr. Tolba as to what he meant by this. Mr. Tolba responded, “They were going to take him to the cops. I don’t know what happened to him.”
[27] I find this evidence has rather a sinister air. This is especially in view of the multiplicity of injuries Mr. Mendonca sustained that evening and Mr. Tolba’s and Mr. Miljas’s staunch denials to causing the injuries themselves.
[28] Mr. Tolba testified he did not want to work as a bouncer after that altercation. He did not want to be involved in any more such incidents. He said he returned to Bloke after three or four months of recuperation. His evidence is that he worked three or four shifts at the entrance taking tickets before he left the employ of the club.
[29] Defence counsel asked Mr. Tolba whether he had worked with Mr. Miljas before the June 28th altercation. Mr. Tolba indicated that he knew Mr. Miljas from working as a bouncer at Bloke. He confirmed his identity by indicating he is referring to the person he saw outside the courtroom waiting to testify.
[30] In fact, Mr. Tolba agreed with defence counsel that Mr. Miljas was working as a bouncer at Bloke before the altercation and also on the night of the altercation. Mr. Tolba further testified he worked with Mr. Miljas during the four shifts after he returned to Bloke. Mr. Tolba also agreed with defence counsel that when he returned to Bloke other employees knew he had been injured and everyone was talking about it.
[31] Defence counsel questioned Mr. Tolba about the extent of his physical strength and power. Mr. Tolba went to great lengths to minimize his strength despite his evidence about his size and workout routine. He denied that bouncers use forms of force like pushing, punching and kicking to control patrons in spite of his admission he punched Mr. Mendonca. He denied that bouncers are hired because of their size and strength.
[32] Crown counsel called Dr. Howard Holmes, uncontested by the defence, as an expert in oral and maxillo-facial dental surgery. After an inquiry into the credentials set out in his curriculum vitae he was admitted as an expert.
[33] Dr. Holmes performed the surgery on Mr. Tolba. He testified that Mr. Tolba sustained fractures to his occipital bone, jaw bone and other bones on the right side of his face. Titanium plates were inserted to stabilize his eye and face. Dr. Holmes confirmed that the injury was caused by blunt force trauma. There were no imprints or indications on Mr. Tolba’s face that revealed the type of object that caused the trauma. Dr. Holmes could not confirm whether a beer bottle or an elbow caused the injuries.
Mr. Miljas’ Evidence
[34] Mr. Miljas testified he was at the bar where Mr. Mendonca was with two other men. At trial Mr. Miljas said he was about 6 feet away from Mr. Mendonca before the altercation. He described Mr. Mendonca’s friends as two “African American” men of average build and height. This is contrary to both Mr. Tolba’s, as and we will see, Mr. Mendonca’s evidence, that Mr. Mendonca was with only one thin black man all night.
[35] Mr. Miljas testified there was a bottle service booth near where he was situated at the bar. He said he saw from about 20 feet away Mr. Mendonca in a hostile, non-physical verbal altercation with the people in the bottle service booth which was beside Mr. Mendonca (“the bottle service incident”). He could not hear what Mr. Mendonca was saying. Next, he saw Mr. Tolba go over to Mr. Mendonca to settle him down. The situation settled down and Mr. Tolba left the area. Mr. Mendonca then returned to his friends at the bar where Mr. Miljas was with his friends.
[36] Mr. Miljas testified he saw what Mr. Mendonca was drinking. He said he observed Mr. Mendonca drinking straight vodka shots. He said Mr. Mendonca’s friends had a bottle at the bar. He said he saw Mr. Mendonca drink at least three shots from shot glasses within a 40-minute period. He said he also observed Mr. Mendonca drink beer from a green beer bottle. He only saw him with one beer bottle.
[37] Mr. Miljas had not previously told the police or the preliminary inquiry what Mr. Mendonca was drinking or about the colour of the beer bottle. Mr. Miljas explained he had not been asked about this before trial but he did previously say Mr. Mendonca was drinking.
[38] Mr. Miljas stated that Mr. Mendonca appeared “irate”, “pissed off”, upon his return to the bar. Mr. Miljas testified he could not hear everything Mr. Mendonca was saying. But he did hear him say “Fuck” while holding a glass beer bottle in his right hand. He said he saw Mr. Mendonca approach him with the beer bottle in his hand and observed him pour the contents of the bottle on the floor.
[39] Mr. Miljas said Mr. Mendonca then walked away from the bar towards the dance floor. Mr. Miljas stated that at this point he saw Mr. Tolba doing his rounds. Mr. Miljas said that from about 20 feet away, he saw Mr. Mendonca come up behind Mr. Tolba’s back, cup the beer bottle in his palm, and swing it over the right side of Mr. Mendonca’s head and strike Mr. Tolba on the right side of his face.
[40] Mr. Tolba then hunched over from the pain with his hands covering his head. Mr. Miljas testified that he approached Mr. Tolba to assist him. As he approached he saw Mr. Mendonca punch Mr. Tolba on the right side of his head with the “same hand”. I assume he meant the right hand that held the beer bottle. Mr. Miljas stated he then punched Mr. Mendonca with his right hand on the back of his head to the right side. Mr. Mendonca dropped to the floor on his back.
[41] According to Mr. Miljas, during the bottle service incident Mr. Mendonca was situated between zones 3 and 4. The beer bottle incident occurred closer to the other side of the room towards zones 3 and 4 which is not near the DJ booth. Again, this is contrary to Mr. Tolba’s evidence that the bottle incident happened in zone 2 near the DJ booth.
[42] Mr. Miljas asserted that he did not see Mr. Mendonca and Mr. Tolba “tap” each other. He did not see any of the bouncers attack, punch, hit or kick Mr. Mendonca at any time. Regarding Mr. Tolba specifically, Mr. Miljas stated Mr. Tolba did not punch, kick or hit Mr. Mendonca during either the bottle service incident or the beer bottle incident.
[43] Mr. Miljas described Mr. Tolba’s demeanor as “nothing but kind and patient” despite his admission that he could hear none of Mr. Tolba’s words. This too is contrary to Mr. Tolba’s own evidence where he admits that he was not at all happy about Mr. Mendonca touching him. It is also contrary to Mr. Tolba’s evidence that he confronted Mr. Mendonca about “tapping” him on the shoulder and ordered him not to touch someone he does not know. Mr. Tolba emphasized that he did not accept Mr. Mendonca’s explanation that he was just joking. He also admitted he “tapped” Mr. Mendonca back the same way he had been “tapped”.
[44] Some bouncers arrived at the location of the beer bottle incident. Mr. Miljas explained to them what happened. Two bouncers helped Mr. Mendonca from the floor and took him from the room. Mr. Miljas stated that he left the club about five minutes after the beer bottle incident.
[45] Contrary to Mr. Mendonca’s evidence that he was not intoxicated but was just “feeling good”, Mr. Miljas testified Mr. Mendonca was intoxicated. He said he could assess this visually from his experience as a bouncer and from his criminology and psychology studies at university.
[46] Mr. Miljas gave that evidence despite conceding on cross-examination that: he did not hear Mr. Mendonca slur his words; did not smell alcohol or see glossy eyes; he did not see him stumbling; the atmosphere was fairly dark; and he did not know whether Mr. Mendonca had drank alcohol before arriving at the club or know what his tolerance for alcohol was.
[47] Mr. Miljas did not interact with Mr. Mendonca that night but said he could discern from his facial expressions that he was angry and yelling. Neither had he ever previously seen Mr. Mendonca. Yet, Mr. Miljas testified from his observation of Mr. Mendonca entering the club that from the start he gave off “bad energy”, was arrogant, and “gave him a dirty look”.
[48] Again, contrary to Mr. Tolba’s evidence, Mr. Miljas testified he did not know Mr. Tolba before the altercation. Mr. Miljas asserted he was not employed as a bouncer at Bloke on the night of the altercation. He denied being employed there before the altercation. He said Mr. Tolba did not know he was involved in the incident. He further stated that when Mr. Tolba returned to work, Mr. Tolba did not recognize him. His evidence was that he began working at Bloke about two weeks after the altercation and remained employed there for about one year. Also contrary to Mr. Tolba’s evidence, Mr. Miljas testified that he worked eight shifts, not four shifts, with Mr. Tolba after the altercation.
[49] Mr. Miljas did not speak to the police that night. He went to the police station to give a statement on September 7, 2015 after he received a call from the police. Mr. Miljas testified that after the bottle incident before he left Bloke he gave Amir, the owner of the club, his cellphone number. Mr. Miljas indicated that Amir and the head bouncer, Bikki, hired him after the altercation.
[50] Initially, on cross-examination, Mr. Miljas said he did not recall Bikki texting him the next day about the altercation. He eventually agreed with defence counsel that he testified at the preliminary inquiry that Bikki texted him the next day asking Mr. Miljas if he could give his name and phone number to be a witness in case the police called. He agreed that if he said that, then it is true. Mr. Miljas admitted to knowing he was a potential witness but he did not stay at Bloke that night or go subsequently of his own accord to talk to the police.
[51] Also unlike Mr. Tolba, Mr. Miljas did not recall speaking to anyone at Bloke about the altercation. He appeared to minimize the seriousness of the incident. He agreed with defence counsel that working five nights a week until September 7, 2015, he would have worked about 40 shifts with other staff before he spoke to the police. Defence counsel suggested it was hard to imagine he did not speak to anyone about the altercation during those shifts. Mr. Miljas insisted he did not recall.
[52] Mr. Miljas was also shown photos of Mr. Mendonca’s injuries. Mr. Miljas, like Mr. Tolba, denied causing those injuries. Defence counsel also asked Mr. Miljas about his strength and power. Like Mr. Tolba, he would not admit he was a very strong and powerful man despite the fact he has a black belt in karate and is a professional heavy weight boxer who trains five times a week. Actually, when asked the type of professional athletics he was involved in he refused to say. I had to order him to answer that question.
Mr. Mendonca’s Evidence
[53] As noted earlier, Mr. Mendonca and his friend, Sean, headed straight for the bar at Bloke. Like Mr. Tolba, Mr. Mendonca stated he was only with Sean, a thin black man, that night. Mr. Mendonca said he was intent on having a good time. He said he did not have any money that night. So Sean was buying the drinks.
[54] Contrary to Mr. Miljas’ evidence that Mr. Mendonca drank vodka shots, Mr. Mendonca’s evidence was that Sean ordered him two or three single shot rounds of rum and coke during the entire evening. He drank them at about 10 – 15-minute intervals. He also said he drank no beer and never held a bottle of beer or any other bottle in his hand. He said he never poured any liquid from any bottle onto the floor.
[55] Mr. Mendonca testified he was dancing by himself having fun on the dance floor while drinking his rum and coke from a glass. He testified he was doing this for about 20 to 30 minutes before the altercation. He said that he had consumed a couple of drinks when Mr. Tolba passed by him on the dance floor. He did not recall having a drink in his hand at the time. He had never met Mr. Tolba before.
[56] Mr. Tolba accused him of bumping him. Mr. Mendonca stated that he was surprised by this because he had been minding his own business. He admitted he might have bumped Mr. Tolba when he was dancing. He remarked to Mr. Tolba, that if he did that, he was sorry, and he continued dancing. He found Mr. Tolba became aggressive and was trying to make a big deal of it. In accord with Mr. Tolba’s evidence, Mr. Mendonca stated that Mr. Tolba responded, “You don’t know me. Why are you touching me?” Mr. Mendonca testified he apologized again and said, “I’m just trying to enjoy myself”.
[57] It is Mr. Mendonca’s evidence that after the verbal exchange Mr. Tolba pushed him hard with his left forearm. This moved Mr. Mendonca back somewhat. This is contrary to Mr. Tolba’s evidence that Mr. Mendonca struck him first with the beer bottle. At this point, three or four other bouncers surrounded Mr. Mendonca. Mr. Mendonca responded by pushing Mr. Tolba back. He admitted to using a lot of force.
[58] It is Mr. Mendonca’s evidence, again contrary to Mr. Tolba’s and Mr. Miljas’ evidence, that a bouncer grabbed his right arm and then Mr. Tolba punched him forcefully in the nose. Mr. Mendonca heard a cracking sound in his head as a warm substance, his blood, gushed from his nose. Mr. Mendonca testified he suffered a broken nose.
[59] Mr. Mendonca said at this point he retaliated in self-defence. He is left-hand dominant. He raised his left elbow above his head and brought it down and over Mr. Tolba’s head and struck Mr. Tolba on the right side of his face in the temple/cheek area. He did not use his right hand as Mr. Miljas testified. He did not hit Mr. Tolba with a bottle. However, he admitted he used a lot of force. Mr. Tolba fell to the ground.
[60] After he elbowed Mr. Tolba, Mr. Mendonca was punched on the back of the head causing him to fall to the floor. Although he did not see who did this, this evidence is consistent with Mr. Miljas’ evidence that he punched Mr. Mendonca in the back of the head.
[61] Crown counsel cross-examined Mr. Mendonca on why he did not walk away after Mr. Tolba pushed him or after he was punched in the nose.
[62] Mr. Mendonca’s evidence is that the entire interaction with Mr. Tolba was very fast-paced. From the point Mr. Tolba accused him of touching him, until Mr. Mendonca elbowed him, took only seconds to a minute. Mr. Mendonca testified he did not have a chance to walk away after Mr. Tolba pushed him and punched him in the nose. He felt threatened. He was surrounded by bouncers; Mr. Tolba became very aggressive; and everything happened so quickly. He felt he could do nothing but defend himself in the circumstances.
[63] Mr. Mendonca got up from the floor. It is his evidence that three or more bouncers punched him so hard he fell to the floor again. They stomped and kicked him. He raised his hands trying to protect himself from the kicks and blows he was receiving from all directions. He said he was fighting for his life, being “beaten to a pulp”. He kicked and punched and did whatever he could do from the floor to protect himself. He did not recall getting up after he hit the floor that time.
[64] Mr. Mendonca stated that he finally resigned. He curled up into a fetal position, begged for his life, and asked the bouncers to stop beating him. He said he had no idea which bouncers beat him. He was then dragged out into a dark alley behind the club and told he would be arrested. Mr. Mendonca said the bouncers roughed him up and mocked him before EMS and police arrived.
[65] Mr. Mendonca testified he sustained two black eyes. One black eye was obvious from the photos taken on the night of the altercation. He stated that the second black eye developed sometime later. He testified he also sustained a large bump on his forehead, a broken nose, a gash inside his lip, and a swollen knee and ankle. He testified he also suffered four broken ribs. There are photos of the blood-covered white shirt and a navy jacket Mr. Mendonca was wearing that evening. He thought it was his blood. But no DNA testing was done on the blood.
[66] Police officers attended the alley at about 1:36 a.m. Mr. Mendonca was sitting and leaning against a railing. Three bouncers were with Mr. Mendonca. The officers observed his injuries. One officer believed he was intoxicated. But he was co-operative, not aggressive. Mr. Mendonca was taken by ambulance to Toronto General Hospital and later that morning he attended court. He took a couple months off work to recover after the altercation.
ANALYSIS
Weaknesses in the Crown’s Case
Inconsistencies between Mr. Tolba’s and Mr. Miljas’ Evidence
[67] Mr. Tolba and Mr. Miljas were the only witnesses for the Crown called to testify about the facts of the altercation.
[68] Mr. Miljas testified about a bottle service incident. He claimed Mr. Mendonca was causing problems for the bottle service patrons. Mr. Miljas testified Mr. Tolba went over to the bottle service booth to settle Mr. Mendonca down. The problem with this evidence is that when Mr. Tolba spoke to the police that evening he never mentioned this incident. Nor did he mention it at trial. This tends to support Mr. Mendonca’s denial of going to a bottle service booth and causing trouble.
[69] I am not inclined to accept there was a bottle service incident especially since Mr. Miljas claimed Mr. Tolba was involved and Mr. Tolba never mentioned that incident at all. I believe this incident was concocted by Mr. Miljas to bolster his image of Mr. Mendonca as a menacing troublemaker that night.
[70] A further problem for the Crown is that Mr. Tolba and Mr. Miljas gave inconsistent evidence about where the beer bottle incident occurred. This is an important fact of the central incident in this trial. Mr. Tolba’s evidence was that the beer bottle incident occurred between zones 2 and 3, near the DJ booth. Mr. Miljas’ and Mr. Mendonca’s testimonies were consistent that the incident occurred between zones 3 and 4 near the dance floor and not close to the DJ booth.
[71] I find it more likely that Mr. Miljas and Mr. Mendonca were accurate as to where the beer bottle incident occurred − between zones 3 and 4 near the dance floor where Mr. Mendonca was dancing. Mr. Tolba should have known this since that is where he suffered a most traumatic injury. I am not sure why Mr. Tolba misrepresented this evidence. Perhaps, there was something he was hiding that is unknown to the court.
[72] Also troubling about the Crown’s evidence is that Mr. Tolba and Mr. Miljas contradicted each other about whether they knew each other before the June 28th altercation. They were inconsistent as to whether Mr. Miljas worked as a bouncer at Bloke before the altercation and whether he was working as a bouncer on the evening of June 27th/28th. Mr. Tolba, who had worked at Bloke for some four months before the altercation, was clear that Mr. Miljas worked at Bloke before the altercation and on June 27th/28th. Mr. Miljas, on the other hand, said he did not know or work with Mr. Tolba beforehand and only began working for Bloke two weeks after the altercation.
[73] I am more inclined to believe Mr. Tolba that Mr. Miljas worked at Bloke before the altercation, on the night of the altercation and thereafter. I can see no good reason for Mr. Tolba to make this statement against interest unless it was true. That is, denying prior connection to Mr. Miljas could provide a defence against an allegation of collusion. This is precisely why I believe Mr. Miljas did not tell the truth about his employment at Bloke. He wanted to avoid being accused of collusion with other Bloke employees.
[74] There is also a discrepancy between Mr. Tolba’s evidence and that of Mr. Miljas about Mr. Tolba’s disposition and demeanor during his interactions with Mr. Mendonca. Mr. Tolba said of his own disposition that he was not at all happy that Mr. Mendonca tapped him. He told him sternly not to tap or joke with people he does not know. According to his evidence he then reciprocated by tapping Mr. Mendonca back the same way.
[75] In contrast, Mr. Miljas described Mr. Tolba as “nothing but kind and patient.” Mr. Mendonca’s perception, though somewhat more intense than Mr. Tolba’s self-perception, was that Mr. Tolba was “aggressive”. I find this more akin to Mr. Tolba’s description of himself than Mr. Miljas’ depiction of Mr. Tolba. Mr. Miljas seemed intent on minimizing Mr. Tolba’s bad attitude toward Mr. Mendonca, even to a greater degree than Mr. Tolba did. I guess this was in the interest of creating more contrast between Mr. Tolba’s “mild mannered” demeanor and the menacing image Mr. Miljas tried to paint of Mr. Mendonca.
[76] Mr. Miljas also insisted that Mr. Mendonca was with a group of friends that evening. He even described some of their reactions to Mr. Mendonca. He in fact judged Mr. Mendonca’s attitude against his friends’ seemingly disturbed reactions to Mr. Mendonca’s allegedly aggressive behaviour.
[77] Again, Mr. Tolba’s evidence is more aligned with that of Mr. Mendonca. Mr. Mendonca stated that he came to Bloke with one friend, Sean, a thin black man with whom he remained at the bar all evening when he was not dancing. Mr. Tolba emphasized in more than one area of his testimony that Mr. Mendonca was hanging at the bar with only one skinny black man.
[78] I find that Mr. Miljas’ concoction of a narrative where Mr. Mendonca was in the company of friends, whom according to Mr. Miljas negatively reacted to Mr. Mendonca, was intended to bolster his negative portrayal of Mr. Mendonca.
[79] There is also Mr. Miljas’ contention that after the altercation no one at Bloke spoke to him of the altercation. This, Mr. Miljas claims, despite the fact that at least some of the employees would have been at work that evening. Mr. Tolba, on the other hand, stated that after he returned to work people did discuss the altercation.
[80] Again, I am more inclined to believe Mr. Tolba. It would be unnatural for the employees not to discuss such a violent incident occurring at their place of work. I find Mr. Miljas’s denial more questionable given my belief that he knew Mr. Tolba beforehand and was working at Bloke on the evening in question and thereafter. I cannot imagine that no one spoke to him about the incident. Perhaps, Mr. Miljas was trying again to avoid suspicion of collusion and to hide a greater involvement by him at Bloke on June 28th.
[81] As well, Mr. Miljas’ and Mr. Mendonca’s accounts of the altercation are similar in that they describe the altercation as one continuous activity. On the other hand, Mr. Tolba described a situation that had breaks in the altercation. He said that he went to the washroom after the tapping incident and that the bottle service incident happened about five minutes later. Mr. Tolba also testified that after he fell during the bottle incident, he got up and walked over to get the help of other bouncers and walked back to the scene with them.
[82] I find it is more likely that Mr. Mendonca’s version is correct. I do not accept there was a bottle service incident. So I believe that without interruption the tapping incident led quickly to Mr. Tolba attacking Mr. Mendonca, which then led to Mr. Mendonca retaliating and then to Mr. Mendonca being attacked on the floor by the other bouncers.
[83] I also find problematic for the Crown Mr. Tolba’s and Mr. Miljas’ attempts to minimize the extent of their power and strength. That was a futile and outrageous effort by these witnesses. Clearly, by their own evidence, they are objectively very large and physically powerful men. The question then is why they would try to present the court with such wildly dishonest and disingenuous testimony. I think the obvious answer is they wanted to minimize their roles in instigating and aggravating what occurred that night while at the same time exaggerating Mr. Mendonca’s aggression.
[84] In fact on several occasions at trial Mr. Tolba denied that he meant the word “push” when he used that word with the police and at the preliminary inquiry when describing his and the other bouncers’ actions. He called the use of that word a language mistake. However, I believe he intended to use the word “push” because that is what he observed. I find Mr. Tolba was disingenuous in using a language barrier to try to minimize his and the other bouncers’ aggression towards Mr. Mendonca.
Motive to Fabricate
[85] I find the Crown witnesses have motives to fabricate.
[86] Both Mr. Tolba and Mr. Miljas had an allegiance to Bloke when they spoke to the police and testified at the preliminary inquiry. Bloke was their employer. There would be vicarious liability concerns on the part of the employer; that is, if employees were found responsible for injuries to a patron committed in the course of their bouncer duties. This provides a reasonable basis for perpetuating the fabrication that it was Mr. Mendonca who was at fault for his own injuries, not the bouncers. Mr. Miljas and Mr. Tolba needed to protect their employer and their jobs.
[87] As well, the other bouncers involved were Mr. Tolba’s and Mr. Miljas’ cohorts. Each of them depended on each other to come to one another’s assistance whenever trouble loomed at Bloke. That is precisely what the other bouncers did for Mr. Tolba, and perhaps Mr. Miljas, on the evening of June 28th. The bouncers would quite understandably have a sense of loyalty to and camaraderie with each other. Their lives depend on this. They are involved in a risky business. That loyalty may well have inspired the need to fabricate.
Absence of Evidence
[88] The standard of reasonable doubt consists of a doubt based on reason and common sense which must be based upon the evidence or lack of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36, (S.C.C.). In determining the Crown’s success in meeting its burden in a self-defence case, the trier of fact must consider the existence of evidence that disproves the defence and the absence of evidence that could disprove the defence.
[89] I find there is a notable lack of evidence in certain areas that impacts the reasonable doubt determination. That is, in a circumstance, as in this case, where Crown witnesses have provided inconsistent evidence in critical areas an absence of evidence that potentially bears on those inconsistencies affects the Crown’s success in satisfying its onus. I am not entitled to, nor do I draw an adverse inference in these circumstances. The Crown is entitled to call its case as it sees fit. However, in assessing the Crown’s success in meeting the standard I must consider the effect of the absence of evidence on the Crown’s ability to obtain a conviction.
[90] As the Supreme Court of Canada observed in R. v. Walker:
A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence. . . . [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.
R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 22, (S.C.C.)
[91] Several bouncers besides Mr. Tolba were involved with the altercation. They came to Mr. Tolba’s aid and surrounded and restrained Mr. Mendonca. They had first-hand observations. They dragged Mr. Mendonca out to the alley behind the club. Yet none of them were called to support the Crown’s theory that Mr. Mendonca was the aggressor and not a victim who tried to defend himself. None of these persons were called to attest to the details of the altercation. The other bouncers would reasonably have evidence as to whether Mr. Miljas’ was employed at Bloke before and/or on the night of the altercation and whether there were discussions about the incident before Mr. Miljas’ police interview and court proceedings.
[92] There is another concern. It is the customary practice of the police to take photos of the scene of the crime before evidence of the crime is disturbed or removed. The Crown filed photos depicting the interior of the club. But the photos contain no date stamps.
[93] The evidence is that Mr. Tolba and Mr. Mendonca both bled profusely. Some of this blood would reasonably have landed on the floor and surrounding areas. Photos of the floor and surroundings could have held evidence of where the altercation took place. But the court did not have this evidence to consider. The photos were of neutral evidentiary value.
[94] The Crown’s evidence is that a beer bottle was used in the altercation which might have shattered on impact. The bottle and pieces of glass would also have landed on the floor. Photos of such evidence might have confirmed the use of a beer bottle and where the altercation occurred.
[95] Bloke is a bar that required 12 to 13 bouncers as security on the evening of June 27th/28th. It has a capacity for about 700 people according to Mr. Miljas. It is not an unreasonable expectation that a club of that size in downtown Toronto with such high security needs would have surveillance cameras in place. Security footage is frequently evidence at trial.
[96] There was no mention of security cameras at trial. If there were security cameras in use in the area of the altercation, footage surely would have disclosed where the altercation took place and the dynamics of the tapping and beer bottle incidents and Mr. Miljas’ involvement. Were there cameras focussed on the bottle service booth in question, footage might have shown whether Mr. Mendonca harassed the patrons at the booth as Mr. Miljas alleged.
The Law of Self-Defence
The Legislation
[97] Mr. Mendonca faces charges of aggravated assault, assault with a weapon (a beer bottle) and possession of a weapon (a beer bottle) dangerous to the public peace.
[98] On the first two counts it is a straight self-defence case. Mr. Mendonca does not deny assaulting Mr. Tolba and causing his injuries. But he asserts self-defence. On the third count he denies using a beer bottle and admits to using his elbow to strike Mr. Tolba.
[99] Section 34 of Criminal Code contains the statutory requirements for the defence of self-defence. The Crown has the burden to disprove beyond a reasonable doubt that Mr. Mendonca acted in self-defence: R. v. Mulder, [1978] O.J. No. 515, at paras. 5 and 9, (Ont. C.A.). Section 34 provides:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
[100] Section 34 (2) sets out an indeterminate list of factors to consider when looking at whether the act was reasonable in the circumstances, for instance: the nature of the threat of force; the extent to which the force was imminent; the person’s role in the incident; the size, age, gender of and physical capabilities of the parties to the incident; the history of any interaction or communication between the parties to the incident; and the proportionality of the person’s threat or use of force.
Application of the Section 34(2) Factors
Was There Reasonable Grounds to Believe Force is Being Used?
[101] Mr. Mendonca’s evidence was coherent and consistent in the material areas of his account. I do not find he attempted to underplay his role. He admitted to pushing Mr. Tolba back with force after being pushed by Mr. Tolba. Mr. Mendonca admitted to using the left elbow of his dominant arm to strike Mr. Tolba with force after Mr. Tolba punched him in the nose. He did not deny kicking and punching after he dropped to the floor to ward off the bouncers’ blows.
[102] I believe Mr. Mendonca received the injuries he claims, even those not evident in the photos. I also accept his account of how he sustained his injuries.
[103] Neither Mr. Tolba nor Mr. Miljas admit to knowing how Mr. Mendonca received his injuries. I believe the evidence amply shows that Mr. Tolba and the other bouncers came after him pushed, kicked, punched and stomped on him.
[104] I think the facts demonstrate that Mr. Mendonca had reasonable grounds to believe Mr. Tolba was using force.
Was the Strike with the Elbow for the Purpose of Defending Himself?
[105] The extent of the inconsistencies in the evidence of Crown witnesses balanced against the cogency and credibility of Mr. Mendonca’s evidence leads me to accept Mr. Mendonca’s chronology and descriptions of events.
[106] I accept as Mr. Tolba passed, Mr. Mendonca may have bumped Mr. Tolba unintentionally. Mr. Tolba admitted that this perturbed him. But I think it more than perturbed him. I think, as Mr. Mendonca described, Mr. Tolba became angry and aggressive. For some reason, known only to Mr. Tolba, he took extreme exception to a person he did not know touching him. He had this attitude even though in the context of a nightclub dance floor the touching could reasonably have been purely unintentional.
[107] Events moved rather rapidly from this point. Mr. Tolba simply refused to accept Mr. Mendonca’s apologies and move on. Instead, he forcefully pushed Mr. Mendonca. By this time three or four bouncers surrounded Mr Mendonca. One bouncer was holding his right arm. He said he could not get away. I find he was justified in pushing back to defend himself. Mr. Tolba escalated the situation. He forcefully punched Mr. Mendonca in the face striking his nose. Mr. Mendonca heard a cracking noise. Blood gushed from his nose.
[108] I find the circumstances were such at this point that Mr. Mendonca was surrounded by three or four bouncers, one restraining him, and that the critical choice of fight or flight was not open to him. He could not get away. He had to fight. Mr. Mendonca was justified in feeling threatened and fearful for his life. He had just been punched forcefully in the face. It is reasonable to conclude that Mr. Mendonca’s actions were motivated by the very basic primal instinct to defend himself to save his life.
[109] In all the circumstances, I find Mr. Mendonca struck Mr. Tolba with his elbow for the purpose of defending himself.
Was the Strike with the Elbow Reasonable in the Circumstances?
[110] The test of reasonableness of a defensive action is a subjective one, not based in the perspective of the reasonable person. The starting point is the accused’s state of mind:
The accused’s subjective belief that he is in imminent danger of death or grievous bodily harm and that his action was necessary in self-defence was, however, required to be based on reasonable grounds. In deciding whether the accused’s belief was based on reasonable grounds the jury would necessarily draw comparisons with what a reasonable person in the accused’s situation might believe with respect to the extent and the imminence of the danger by which he was threatened, and the force necessary to defend himself against the apprehended danger.
R. v. Baxter, [1975] O.J. No. 1053, at para. 43, (Ont. C.A.)
[111] I need not repeat my findings related to the other factors. I find the facts clearly demonstrate that on both subjective and objective grounds Mr. Mendonca was in imminent danger and in fear for his life. I find the force he exerted in using his elbow to strike Mr. Tolba was reasonable and necessary for him to defend himself.
[112] I see no credible basis to support the Crown’s position that Mr. Mendonca was the aggressor.
The Proportionality of the Person’s Threat or Use of Force
[113] I think the facts I have related on the other factors clearly support the view that before Mr. Mendonca retaliated, he was facing the large and very aggressive Mr. Tolba, who had just pushed him and punched him in the face, and three or four other, I assume, also large bouncers, one of whom was restraining him. The proportion of this threat is obvious. Mr. Mendonca had no other choice but to defend himself.
DISPOSITION
[114] On all the evidence, I find the Crown did not satisfy its burden of disproving beyond a reasonable doubt self-defence on count 1 (aggravated assault) and count 2 (assault with a weapon). I concluded Mr. Mendonca defended himself with his elbow and not a beer bottle. I also find the Crown did not succeed in proving guilt beyond a reasonable doubt on count 3 (possession of a weapon, a beer bottle) that Mr. Mendonca hit Mr. Tolba with a beer bottle.
VERDICT
[115] I find Philip Alfonso Mendonca not guilty on counts 1, 2 and 3 on the indictment. Acquittals will be entered accordingly.
B.A. ALLEN J.
Released: November 30, 2017
CITATION: R. v. Mendonca, 2017 ONSC 7118
COURT FILE NO.: CR-17-10000667-0000
DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PHILIP MENDONCA
Accused
REASONS FOR JUDGMENT
B.A. ALLEN J.
Released: November 30, 2017