COURT FILE NO.: CR-19-0032-000 DATE: 2020-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Ms. A. Brown, for the Crown
- and -
Scotland Crompton Ms. K. Scullion, for the Accused Accused
HEARD: October 7-10, 2019, at Thunder Bay, Ontario
WARNING A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 539 OF THE CRIMINAL CODE OF CANADA
Reasons on Judgment Mr. Justice P. Smith
Overview
[1] On Thursday April 26, 2019, eighty-two year old Oles Chomniak went out for his daily walk in his neighbourhood known as Rockwood Avenue, Thunder Bay. Mr. Chomniak was wearing eye glasses and a hearing aid. He was at the end of his walk when two young men approached him.
[2] Mr. Chomniak testified that he had under two minutes to make the following observations -both were white; individual 1. was slightly taller than the other and wore a loose-fitting hoodie and dark pants; individual 2. had a slim, medium build, was about 19 years old, slightly taller than Mr. Chomniak who was 5’8”, and sported a light-grey hoodie and dark trousers and a blue-brimmed baseball cap was white at the front bearing an emblem. Both individuals were between 18-25 years old.
[3] Individual 2 carried an Apex sign which Mr. Chomniak saw him remove from a neighbourhood property. He accosted Mr. Chomniak, asking, “what’d you think of this sign?” The assailant then pushed him. Mr. Chomniak attempted to run and fell as the assailant punched him. He lost consciousness yet individual 2 continued to kick and punch him.
[4] The assault ended when the car pulled up to where the assault has just taken place. Both the assailant and his friend – who had stood on the other side of the street watching – fled the scene. Luba Moseley, the driver of the car, called an ambulance and the police.
The Charges and the Agreed Statement of Facts and Documents
[5] Scotland Crompton was arraigned on October 7, 2019. He pled not guilty to aggravated assault on the person of Oles Chomniak, contrary to s.268 of the Criminal Code, R.S.C., 1984, c. C-46 on or about April 26, 2018, at the City of Thunder Bay.
[6] The following factual admissions have been made:
a) the offence occurred on April 26, 2019, around 11 a.m. in Thunder Bay b) the offence occurred on Rockwood Avenue South between Bay Street and Phyllis Street c) the court has jurisdiction to hear the matter d) as a result of the assault, Mr. Chomniak suffered a broken arm, broken nose and significant facial and bodily bruising e) the Adult Caution Statement that Mr. Crompton gave to Detective Constable Verscak on May 4, 2018, was a statement given to a person in authority f) the statement was given voluntarily and is admissible as evidence in the trial of this matter.
[7] The following documents were filed on consent and marked as Crown exhibits:
a) Photos of Oles Chomniak’s injuries b) Medical documentation of the injuries c) Causeway Insurance Surveillance Video recorded April 26, 2018 d) Maxx Pawn Surveillance Video recorded April 26, 2018
[8] For the purpose of providing narrative, but not for their truth content relative to the identity of the accused, Mr. Crompton admits the following documents filed as Crown exhibits:
a) Thunder Bay Police Media Release dated April 27, 2018 b) Thunder Bay Police Media Release dated May 3, 2018, and c) related video excerpt from Cause Insurance Surveillance Video attached thereto
The Issue
[9] Identity of the assailant is the only issue before the court.
[10] The court must determine whether the Crown has proven beyond a reasonable doubt all the essential elements of the charge including that the identity of the assailant was the accused, Scott Crompton.
The Position of the Parties
[11] Mr. Crompton referred the court to the inconsistencies in the witnesses’ testimony and submitted that neither Mr. Chomniak nor Ms. Moseley positively identify him as the assailant:
i. Mr. Chomniak failed to identify Mr. Crompton in a photo line up. ii. Mr. Chomniak testified that he was pushed, received a blow, and lost consciousness attempting to run across the street. But he also testified that either he was tripped or fell, dislodging his hearing aid and glasses. He was unable to further describe his assailant. iii. Mr. Chomniak was unable to definitively say whether one or two persons assailed him. Contrary to his testimony at trial, he testified at the preliminary hearing that “they” had hit him. When probed on the inconsistency, he said he was wrong at the prelim and asked to correct his testimony.
[12] The following are the principal evidentiary inconsistencies that Mr. Crompton also relies on to support his position that the Crown has not proven beyond a reasonable doubt that he was the assailant:
a) The eye witnesses to the assault – Mr. Chomiak and Luba Moseley – described the perpetrator as wearing a grey hoodie. Surveillance footage, however, shows the accused, wearing a dark hoodie. His companion, Douglas Munn who was present during the assault, is the only of the two wearing grey clothing. b) The eye witnesses to the assault do not mention any distinguishing features about the assailant such as the scar on Mr. Crompton’s forehead. c) Other eye witnesses describe the perpetrator as having dark hair. Surveillance footage show Mr. Crompton with dark hair. However, when arrested, Mr. Crompton’s hair was blond. In the surveillance videos, Mr. Munn has blond hair. d) Mr. Vajdani, the Maxx Pawn shop operator, testified that he did not shake Mr. Crompton’s hand when he came to his counter because he saw that they were injured and bleeding. This account is not confirmable from the surveillance footage. e) Mr. Ikpong, the taxi driver testified that Mr. Crompton had no hand injuries, nor did he observe that he was bleeding.
[13] Mr. Crompton submits that the direct evidence of Luba Mosely is also unreliable and should not be believed. She first testified that as she approached the scene in her car, she saw a scuffle, a person was pushed, and someone then ran across the street. She also testified that the person who had pushed Mr. Chomniak to the ground was wearing a light-grey hoodie, dark pants, was about 5’9” tall. She also saw the Apex sign. Under cross-examination, Ms. Moseley agreed that she assumed she saw two males but, in fact, she could not definitively say whether they were male or female. Further, Ms. Moseley spoke with Mr. Chomniak after the incident. He visited her home, taking along photos that they discussed, along with his injuries. She also called Mr. Chomniak’s wife to check on him.
[14] Mr. Crompton submits that the court should not accept Douglas Munn’s evidence because he contacted the police to exculpate himself only after publication of his image in the Causeway video. Mr. Munn not only had a motive to lie, but his assertion that he went to the police from fear defies belief and common sense.
[15] Mr. Crompton submits that the Causeway video clearly depicts who was wearing grey and who must therefore be the perpetrator. The video shows Mr. Munn wearing a dark-coloured sweatshirt, dark at the front, with grey sleeves and a grey hood.
[16] Mr. Crompton submits that Mr. Munn’s evidence is not credible. He stated that he feared Mr. Crompton yet never called for help or run away but continued to spend time with Mr. Crompton after the assault.
[17] Mr. Crompton submits that Mr. Munn either has difficulty recalling the events correctly or is misleading the court. His difficulty of recall may be due to his inebriation at the time of the events. He was clearly not sober in the Causeway video. His evidence was that he arrived intoxicated at 25 Windemere to hang out with friends and commenced using cocaine and crack cocaine. He testified that Mr. Crompton was also present and was using drugs. In cross-examination however, he said Mr. Crompton was in another room.
[18] Mr. Crompton submits that the court must follow the directions of the Supreme Court’s in Vetrovec v. The Queen, [1982] 1 S.C.R. 811 and reject Mr. Munn’s evidence. Mr. Munn testified that:
- he didn’t know why he didn’t call his mother.
- that he and Mr. Crompton changed clothes, yet he couldn’t say what either he or Mr. Crompton previously wore versus what they changed into
- that he stood aside as Mr. Crompton, without any warning or cause assaulted Mr. Chomniak
[19] Mr. Crompton submits that the timeline evidence proves that there was no time for a change of clothing. The assault occurred around 11:00 a.m., a cab was called shortly thereafter. At 11:10 a.m., the cab was tracked to Maxx’s Pawn shop.
[20] There was also no attempt by the Investigating Officer to determine whether there was a change of clothing. There would have been blood – reliable forensic evidence – on the assailant’s garments yet there was no warrant applied for to search for clothes. Mr. Crompton submits that were he was bleeding, the blood would have been visible on Mr. Vajdani’s hands and on the countertop however, the surveillance footage evidences none of this.
[21] Mr. Crompton also submits that Mr. Vajdani’s evidence is not credible. Police did not seek a statement from him until one year after the assault. Mr. Vajdani testified that the individual who came into his pawn shop had an injury on his hand. This injury is not depicted in the pawn shop footage. Mr. Vajdani also testified that he refused to shake hands with the individual because he was bleeding yet the footage shows them twice shaking hands and once fist-pounding.
[22] Mr. Crompton submits that Savannah Aube’s evidence is also not reliable or useful. She alleged being with Mr. Crompton and Mr. Munn the night before the assault, but her evidence is vague and uncertain and she confirmed being on Xanax and that she had blacked out that evening.
[23] Miss Aube said she overheard a conversation after the assault wherein Mr. Crompton and Mr. Munn discussed that something may have happened involving “the old man”. She was not sure nor could she tell the court about any details or that the conversation revealed that either was responsible. Mr. Crompton submits that Miss Aube’s reports about the assault does not assist the court.
[24] Mr. Crompton submits that the court should also be critical of Officer Browczuk’s evidence. He testified that he was familiar with Mr. Crompton from previous arrests and the day after the assault when he reviewed the video, he identified Mr. Crompton as the assailant.
[25] On cross-examination, Officer Browczuk said he was only able to identify Mr. Crompton by the shape and outline of his face in the Causeway video. Mr. Crompton submits that the police evidence is inconsistent and vague on the issue of identity. Officer Browczuk said, when cross-examined, that he was not 100% sure Mr. Crompton was the person in the video. However, Detective Constable McLaurin testified that Officer Browczuk had identified Mr. Crompton with 100% certainty.
[26] Mr. Crompton submits that the deficiencies and gaps and lack of follow-up by police in this case create doubt that Mr. Crompton committed the offence. In additions to other omissions, police did not collect the APEX sign or test it for forensic evidence. They relied on broad and vague actors – slim build, race, etc. – that could fit many people.
[27] Mr. Crompton submits that the Crown’s case is based on circumstantial evidence, namely post-offence conduct which is unreliable.
[28] Counsel for Mr. Crompton reviewed the directions of the Court of Appeal for Ontario in R. v. Angelis, 2013 ONCA 70 regarding post-offence conduct: such evidence is subject to admissibility rules that require the evidence be excluded when its prejudicial effect outweighs its probative value. The overriding question is to ask what logic and human experience suggest may be legitimately or rationally inferred from the evidence.
[29] The Crown argued that Mr. Crompton’s change of hair colour to blonde from brown is determinative of guilt. However, Mr. Crompton did not dye his hair immediately after the assault occurred but did so lays later after it was alleged that the perpetrator was dark haired.
[30] Mr. Crompton has a history of changing his hair colour. Mr. Crompton’s father (T.J. Crompton) testified that his son dyed his hair many times and that he saw his son everyday and did not notice any injuries on his hands. It is noted that T.J. Crompton was in court while other witnesses testified despite a court order excluding witnesses. When asked about this he stated that he was unaware of the court order.
[31] Mr. Crompton submits that the post-offence conduct is more prejudicial than probative. Accordingly, he asks the court to take it for what it is: a piece of circumstantial evidence that proves nothing.
[32] Counsel for Mr. Crompton submitted that the court must not base its decision on a single piece of evidence. It must weigh the evidence as a whole. The totality of the evidence must leave the court with a reasonable doubt as to the identity of the assailant.
[33] Mr. Crompton submits that there are only vague descriptors in this case: no forensic evidence, no DNA, no fingerprints to confirm wounds consistent with the evidence. Mr. Crompton submits that the Crown wants the court to fill the blanks in its case. He submits that while the court may rely on the circumstantial evidence, it may not fill blanks in the Crown’s case.
[34] Mr. Crompton submits that the Crown has not adduced evidence to prove beyond a reasonable doubt that he was the assailant in this case and that accordingly he must be acquitted.
The Crown’s Position
[35] The Crown stated that the only issue in this case is whether Scotland Crompton committed the assault on Oles Chomniak. The Crown submits that any inconsistencies in Mr. Chomniak’s evidence are minor and that Mr. Chomniak reasonably explains them.
a) Mr. Chomniak described the assailant (individual #2) as taller than he is, slim, 18 to 20 years old, wearing a grey sweatshirt. b) Individual #1, at whom he barely glanced, was four to five feet away. He positively did not participate in the assault. c) Mr. Chomniak described the second individual as a bit taller but he may have appeared so from the elevation in the road. d) Mr. Chomniak was unsure of this individual’s hair colour. It may have appeared dark due to shadowing. e) Mr. Chomniak said they interacted for 30 seconds before the assault occurred, hence: i. his generalized description of the assailant ii. his sparse description of the other individual iii. his not having noticed the scar on Mr. Crompton’s forehead, plus f) Mr. Crompton wore a hat g) Mr. Chomniak used the pronoun “they” at the preliminary inquiry but clarified at trial that he often used “they” in everyday parlance. He said, “one person followed me and the other remained across the street.” h) Mr. Chomniak had no head injuries that would dilute his memory or render his testimony unreliable. The medical records confirm this, and Mr. Chomniak confirmed his good memory on cross-examination.
[36] The Crown submits that Ms. Moseley’s testimony is credible. Her identification of the assailant, as slim, 5’9” tall is consistent with Mr. Chomniak and DC McLaurin’s evidence. Her evidence when weighed with the totality of all other evidence provides a helpful description of the assailant: his body type and size and what the men were doing when she stopped the car.
[37] The Crown submits that conversations between Ms. Moseley and Mr. Chomniak following the assault are immaterial. They were fleeting and general. Ms. Moseley and Mr. Chomniak did not discuss the assault or the identity of the perpetrator.
[38] The Crown agrees that it is appropriate that a Vetrovec warning apply to Mr. Munn’s evidence. However, the Crown disputes that he has motive to lie or that his evidence should not be taken as credible. The Crown submits that Mr. Munn’s evidence is credible:
a) He testified in a straightforward manner. b) He admitted unflattering evidence about himself including his drug use. c) He admitted walking down the street at the time with Mr. Crompton, then seeing Mr. Crompton commit the assault. d) He admitted being fuzzy on waking up after his drug use, but he was clear about the assault. e) He described biometrics and said Mr. Crompton was an inch or two taller than he was, around 5’9,” about 160 lbs, so more hefty than he is f) He recalled Mr. Crompton wearing a headband but doesn’t recall his clothes. g) He testified readily that he and Mr. Crompton changed clothes following the assault and he readily identified himself as the person wearing grey in the Causeway video.
[39] The Crown submits that it is not logical that he would fabricate having changed clothes, only to then identify himself in the Causeway video as the person wearing grey clothes which were colours linked to the identity of the assailant. To do so would be to knowingly incriminate himself.
[40] The Crown submits that the timeline of events makes it reasonable to believe that there was time for a change of clothes.
a) Ms. Moseley testified that the assault occurred around 11:00 a.m. She returned to her car to get her phone and called 911. b) Mr. Ikpong’s call despatch log further confirms this. He received a call at 11:22 a.m. He accepted it and picked up two males. c) Constable Browczuk, Mr. Munn, and Mr. Ikpong testified that the two males were picked up at Mr. Crompton’s grandmother’s residence on Windemere Street. They would have had time to go in, change, and come back out. d) It was too late to collect evidence of changed clothing at the time police learned of it from Mr. Munn. This was a week after the assault and a warrant to search would have been fruitless. e) DC McLaurin realized that the clothing descriptions did not match the information coming in from the public and from Maxx Pawn Shop footage. She also learned that Mr. Crompton’s grandmother lived close by and made an inference that he would have been able to change there.
[41] The Crown submits that Mr. Munn did not call police immediately on seeing the media release because he knew what had happened was wrong and he took time to come to terms with it. Mr. Munn testified that, having witnessed Mr. Crompton vicious and unprovoked assault Mr. Chomiak, he feared for his own safety.
[42] The Crown submits that Mr. Munn’s behaviour was reasonable. When the assault occurred, he stayed out of it. Once he contacted the police, he had the intention of giving a statement, no matter what happened. Police asked whether he wished to consult a lawyer and he said that was not necessary.
[43] The Crown argues that the evidence before the court clearly identifies Mr. Crompton as the assailant.
a) Mr. Munn identified Mr. Crompton as the person recording the video of Mr. Ikpong, the taxi cab driver. b) Mr. Munn identified himself in the video and confirmed that he and Mr. Crompton were in front the house of Mr. Crompton’s grandmother when the cab arrived. c) Mr. Munn testified that they were taking the cab to Maxx Pawn shop. d) Mr. Munn identified Mr. Crompton recording his feet and then turning the camera on Mr. Ikpong. e) Mr. Ikpong confirmed the video as a recording what occurred once he picked up the two men and then while driving them to the pawn shop. f) Mr. Ikpong identified Mr. Crompton’s gold watch and testified that he said he was going to pawn it. g) Mr. Vajdani also identified Mr. Crompton’s gold watch and testified he offered to pawn it. h) Mr. Munn testified that Mr. Crompton ran away without paying the taxi. Mr. Ikpong confirmed this. i) Mr. Munn identified Mr. Crompton at Causeway Insurance which is in the direction that Mr. Ikpong testified seeing them run. j) Brandon Knoxx identified Mr. Crompton in the Instagram video depicting the taxi ride. He contacted the police and re-posted the video. k) Officer Browczuk identified Mr. Crompton’s voice in the video.
[44] The Crown argued that the post-offence conduct of Mr. Crompton dying his hair blond following the assault is probative of his guilt.
[45] The Crown submits that Ms. Aube is also credible. She conceded her memory was not wholly clear and that she had consumed drugs the night before overhearing Mr. Crompton discuss the assault. She was present when Mr. Crompton was arrested. When examined on this, she said it had something to do with “warrants” and “the old man”.
[46] The Crown submits that Ms. Aube’s evidence corroborates that Mr. Crompton post-offence conduct was for the purpose of avoiding detection. Ms. Aube dated Mr. Crompton in the weeks prior to his arrest. She also knew him on social media for years before they date. She testified that Mr. Crompton dyed his hair the night before he was arrested.
[47] Ms. Aube testified that she had not spoken with Mr. Crompton since she broke up with him yet he attempted to contact her on Instagram a month before trial. The Crown submits that the court should draw a negative inference from this inappropriate contact.
[48] The Crown submits that Mr. Knox identified Mr. Crompton through his voice on the Snapshot video. He believed that Mr. Crompton had reached out to him, calling him a confidential informant and he believed that Mr. Crompton had assaulted an eighty-two-year-old man.
[49] The Crown argued that Mr. Ikpong’s evidence identifies Mr. Crompton as the assailant. Mr. Ikpong did not know that he was being recorded by Mr. Crompton on his cell phone until shown the video in court. Yet during his testimony, he described the events exactly as shown in the video. He also identified the man who occupied the front passenger seat in his cab as slim, white, European, with a gold watch and ring he was going to pawn.
[50] The Crown submits that Mr. Ikpong’s inability to recall injuries on the passenger is not material and is explainable. Mr. Ikpong explained that many individuals with injuries enter his cab and that he could not possibly remember them all.
[51] The Crown submits that absence of notes recording his identification is not material to Officer Browczuk’s positive identification of Mr. Crompton. Police are capable of independent recollection – their notes are not evidence, but act as aide memoire.
[52] Officer Browczuk, had previously arrested Mr. Crompton and knew that he was associated with a residence at 105 Windmere. The Crown submits that there are only immaterial inconsistencies in the degree of certainty that the two officers reported when Officer Browczuk positively identified Mr. Crompton in the video. The Crown concedes that Officer Browczuk testified that his identification was tentative while Detective McLaurin said it was 100%. However, the Crown argued that this does not undermine their identification because the police conducted further investigations before apprehending Mr. Crompton as the suspect. They did not immediately arrest him.
[53] The Crown submits that Mr. Crompton fabricated statements to avoid detection and that this is evidence of his guilt:
- When the police arrested him, Mr. Crompton was walking with his girlfriend from 105 Windmere–his grandmother’s residence. Lot 105 Windmere is the same address in the background of the video recording involving Mr. Ikpong’s cab. When the police approached to arrested him, Mr. Crompton denied that he was Scotland Crompton. When the police observed that he had dyed his hair, he denied it.
- Mr. Crompton also gave false statements when the police questioned him about his I-phone. He said he didn’t have one and that he uses a tablet. However, Mr. Munn testified that Mr. Crompton was making videos before the assault. Mr. Ikpong testified that Mr. Crompton held an I-phone on entering and throughout the time in the cab. Mr. Vajdani testified that Mr. Crompton tried to sell him an I-phone.
- Mr. Munn identified himself and Mr. Crompton in the Causeway recording. But Mr. Crompton told police in his interview, “I think Dougie is in Edmonton. Dougie didn’t call for a cab. But I wasn’t with him so I don’t know.”
- Mr. Crompton stated in the police video that “I don’t go to pawn shops. If I need money, I call my dad. My dad is wealthy.” But other recordings show him at Maxx Pawn attempting to pawn items.
[54] The Crown submits that these four proven falsehoods clearly show that Mr. Crompton fabricated evidence to avoid detection.
[55] The Crown submits that the absence of Mr. Munn from the photo lineup is not material. Both Mr. Chomniak and Ms. Moseley – the two eye-witnesses to the assaults – had only a glance at him. Both testified that he did not participate in the assault. The police also had no information incriminating him.
[56] The Crown submits that Mr. Crompton’s post offence conduct is probative of his identity as the assailant: Regina v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 30.
a) Mr. Crompton dyed his hair a similar colour as Mr. Munn’s after seeing the police releases. b) Mr. Crompton ran away from the scene of the assault when Ms. Mosley drove up in her car.
[57] The Crown submits that T.J. Crompton, Scotland Crompton’s father, is not credible and the court should reject his evidence. Despite a court order excluding witnesses from the court he was in court listening to evidence and watching the video of his son’s police statement before he testified. In the police video he watched his son and deny living at the address that police had put to him and he later testified that his son had lived with him the whole time. During his interview with the police, Scotland Crompton told police that he did not live with his father, but rather with a friend.
[58] The Crown submits that all the evidence identifies Mr. Crompton as the assailant beyond a reasonable doubt and that a conviction of the charge before the court should be granted.
Legal Principles and Analysis
[59] In a criminal case, the Crown must prove guilt beyond a reasonable doubt. If the court accepts the accused’s evidence the court must acquit. If the court does not accept the accused’s evidence but is left in a reasonable doubt by it, the court must also acquit. However, even if the court is not left in reasonable doubt by the accused’s evidence, the court must ask whether on the totality of the evidence it is convinced beyond a reasonable doubt that the accused is guilty: R. v. W. (D), [1991] 1 S.C.R. 742; see also Justice David M. Paciocco, Doubt about Doubt: Coping with R. v. W. (D) and Credibility Assessment, 2017: Thomson Reuters Canada Limited.
[60] In this context, the court must not weigh discrete items of evidence in isolation. It must consider evidence both on its own merits and as part of the totality of evidence on the record. The same is true where, as in this case, the evidence against the accused is circumstantial.
Direct and Circumstantial Evidence of Guilt
[61] The Court of Appeal for Ontario directs that “where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence: Wu at para. 15. It bears reproducing the words of the Ontario Court of Appeal in R. v. Uhrig, 2012 ONCA 470:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[62] Where the evidence is circumstantial, the court must ask whether the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Wu, 2017 ONCA 620; [2017] O.J. No. 3868 at para 9, citing R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56. Mr. Crompton asks this court to interpret the evidence as exculpating him.
[63] The Court of Appeal for Ontario directs that circumstantial evidence need not exclude all other conceivable inferences to be probative of guilt. A “verdict is not unreasonable simply because the alternatives do not raise a doubt […], ‘it is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt:” Wu at para. 14, citing Villaroman at para. 56.
[64] Finally, in assessing the inferences and determining whether guilt is the only reasonable conclusion available on the totality of the evidence, the court is entitled to consider that the accused “did not testify and did not adduce evidence to support any other reasonable inference consistent with his innocence:” Wu at para. 16, citing R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.).
[65] Mr. Crompton did not testify. Instead, he had his father testify. T.J. Crompton testified that Scotland Crompton lived with him. He attempted to refute the allegation that his son was injured and bleeding consequent to the assault. This court finds T.J. Crompton’s evidence unreliable and incredible. His presence in court during other witnesses’ testimony taints his evidence. Moreover, Scotland Crompton in the police video taken upon his arrest denied living with his father.
[66] Discrete pieces of evidence in the Crown’s case fail to positively identify Mr. Crompton as Mr. Chomniak’s assailant. On their own, it is arguable that they raise a doubt that Mr. Crompton was the assailant. However, I find that these inconsistencies are not irreconcilable. Nor do they definitively exclude Mr. Compton as the assailant.
[67] I find that the circumstantial and direct evidence taken together inexorably identifies Mr. Crompton as the assailant.
Post-Offence Conduct
[68] Mr. Crompton’s conduct following the assault corroborate the Crown’s evidence identifying him as the assailant. This court finds that it was he who posted the video depicting events at the time the cab arrived and following the assault. His attempts to contact a witness in the case shortly before the trial and, above all, his change of hair colour, show that he was the assailant.
[69] Post-offence conduct may unreliable and may be prejudicial. It is however reasonable to assume that a person will act one way following the commission of an offence, but differently if innocent: see R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3) 143, at para. 51, per Laskin, J.A. Even so, “an accused’s post-offence conduct is generally admissible to show that the accused acted in a manner which, based on logic and human experience, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: Angelis at para 51, citing R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.).
[70] The Court of Appeal for Ontario clarifies that while post-offence conduct may not be properly used to draw inferences about the degree of culpability, it nonetheless may be used to establish that the accused did commit a culpable act: Angelis at para. 53 (citations omitted).
[71] Post-offence conduct is, thus, not presumptively excluded or subject to blanket rules. Rather, its admissibility follows an assessment of all circumstances of the case: “the nature of the evidence, the issues at trial, and the positions of the parties:” (Angelis at para. 55). If on that assessment it proves probative, the post-offence conduct is admitted. The threshold question is, what do logic and human experience suggest may be legitimately or rationally inferred from the accused’s post-offence conduct: (Angelis at para. 55 citing R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 36, 44).
Inculpatory Value of Accused’s False Out-of-Court Statements
[72] Did Mr. Crompton fabricated his false statements to the police for the purpose of exculpating himself from the offence? A finding that a statement is false does not alone indicate that the accused fabricated the statement to avoid detection. As with post-offence conduct, the evidentiary value of false statements made by the accused turns on principles of relevance and materiality: R. v. Paul, 2009 ONCA 443, [2009] O.J. No. 2184.
[73] The Crown adduced evidence of no less than four confirmed falsehoods from Mr. Crompton to police. Assessed in the circumstances of the falsehoods themselves, in the context of the case, and on the totality of the evidence, this court finds that Mr. Crompton lied to avoid detection.
[74] The Court of Appeal for Ontario directs that “where a trier of fact is satisfied that an out-of-court statement made by an accused is false, the circumstances in which the statement was made and the content of the statement may reasonably permit the trier of fact to conclude that the statement was not only false but was fabricated to conceal the accused’s involvement in the offence:” citing R. v. O’Connor (2002), 62 O.R. (3d) 263 at 377 (Ont. C.A.). The court emphasizes, however, that there must be something more in the evidence “that reasonably justifies the further inference that the false statement was deliberately made for the purpose” of concealing the accused’s involvement in the offence: at para. 24, citing R. v. Hazel, 2009 ONCA 389, at paras. 11-20. In this case, I have no doubt that the accused purposely fabricated evidence to hide his guilt.
Disposition
[75] The totality of the evidence confirms beyond a reasonable doubt that it was Scotland Crompton who committed the assault on the person of Oles Chomniak.
[76] The circumstantial evidence adduced by the Crown need not exclude all other conceivable inferences to be probative of guilt and viewed on a totality basis does prove the identity and guilt of the accused beyond a reasonable doubt.
[77] I accept the eye witness testimony of Douglas Munn as being credible and reliable. This is direct evidence and clearly establishes Mr. Crompton as the assailant.
[78] I find that the evidence establishing the timeline of events on the day of the assault are also probative of the guilt of the accused.
[79] Finally, I find that the post-offence conduct of the accused is also probative of his guilt.
[80] For the above reasons, I find the accused Scotlund Crompton guilty the offence as charged.
“original signed by” Mr. Justice Patrick Smith
Released: March 3, 2020