COURT FILE NO.: CR-23-0091-00
DATE: 2024-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Crown
- and -
Wesley Coaster
Accused
S. Crowe, for the Crown
B. Sacevich, for the Accused
HEARD: February 20, 21, 2024, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Judgment
Overview
[1] Mr. Coaster is charged with aggravated assault upon Gerald Bottle contrary to section 268 of the Criminal Code and with two counts of breach of a probation order by failing to keep the peace. The alleged assault occurred on September 10, 2021.
[2] It is admitted by Mr. Coaster that, on September 10, 2021, he was bound by two probation orders which required him to keep the peace and be of good behavior.
[3] It is further admitted by Mr. Coaster that the injuries sustained by Mr. Bottle – a large subdural hemorrhage requiring craniotomy – endangered the life of Mr. Bottle within the meaning of s. 268(1) of the Criminal Code.
[4] At issue is whether the Crown can establish, beyond a reasonable doubt, that it was Mr. Coaster who assaulted and caused these injuries to Mr. Bottle.
[5] Mr. Bottle was not called as a witness. The Crown relied upon surveillance videos and utterances from Mr. Coaster to establish Mr. Coaster’s guilt. Mr. Coaster did not testify.
The Facts
The Location
[6] Mr. Bottle was found by police laying on the ground beside a staircase at the rear of the Canadian Tire Store (CTC) off of Fort William Road in Thunder Bay. To the south of the rear of the CTC is a Kentucky Fried Chicken (KFC) outlet with a drive through on the CTC side. There is a KFC surveillance camera covering a portion of the drive-through area and showing the back of the CTC. There is another KFC surveillance camera showing the approach to the drive-through, the rear northwest side of the CTC and Fort William Road.
[7] Northeast of the KFC is a beer store that is referenced in the dispatch log.
The Time Line
[8] The 911 call regarding this assault was made at 1:18 p.m. or 13:18 on September 10, 2021.
[9] The timeline is based on the surveillance videos, the dispatch time, and a body camera worn by Constable Bresele.
[10] The evidence is that the time stamp on the KFC surveillance videos is 14 minutes slow. the times used below for those videos will be the time stamp indicated plus 14 minutes. It is likely that the times are not accurate but should be considered as approximate.
September 10, 2021:
11:03 KFC drive though video:
4 males walking though drive through area
One male resembles Coaster, grey/green/camo hoodie, hood up
11:40 KFC drive through video still (exhibit 14a):
3 males at CTC wall, 2 with white sneakers
13:18 KFC approach to drive through video:
person with black hoodie/dark pants walks away from CTC followed by another person
13:19:33 2 begin confrontation, break off. Larger male follows black hoodie
13:19:37 still ex 12d
13:19:50 larger male grounds black hoodie, larger male punches black hoodie several times, then large male on top of black hoodie punches again several times
13:20:34 large male helps black hoodie up, then large male starts walking towards CTC, then returns to where black hoodie is walking and then together, they walk towards CTC, they pass 2 other persons by CTC, one gives larger male jacket? Another person in area with lighter coloured pants and backpack
Larger male, plum or purple t-shirt, dark pants and white shoes, smaller male all in black. Larger male resembles Coaster.
13:18 TBPS Dispatch:
Group of 9 gathered by the drive thru on the staircase
M just kicked other m who is down on ground
Accused grey backpack, grey clothes, hat
Accused LSH TWDS (last seen heading towards) beer store
13:22:22 KFC drive through:
13:22:26 2 sets of legs with white shoes perhaps kicking
13:24:49 Bodycam of PC. Bresele:
Bottle on ground, 3 males walking away
“right now, you are all being detained pending an assault investigation”
Male – “it wasn’t me”
Coaster – “it was me” Coaster wearing blue Leafs toque, black hoodie, plum tshirt, blue sweat pants, white runners, no backpack
Cautioned :
13:35 Coaster: “ I don’t know what happened here”
Bottle –“been sitting here all day, don’t know what happened” Clothing on Bottle black hoodie, dark pants
Constable Bresele
[11] Constable Bresele testified that he and Constable Augier were dispatched to the rear of the CTC and arrived at 13:21. Both officers were in uniform and arrived in a police cruiser.
[12] His body cam footage was entered as an exhibit. It is about 42 minutes in duration. At times, no audio was recorded. The officer could not say why or how that occurred.
[13] When the officers arrived, they observed three males walking away from a male who was laying on the ground. As set out in the timeline, Constable Bresele told the males to stop, “right now, you are all being detained pending an assault investigation.” All males walked back towards the officers and one male said: “it wasn’t me.” Another male said: “it was me.” That male was Mr. Coaster.
[14] All males were cooperative. When given a formal caution, Mr. Coaster said he understood. When asked what happened he responded: “I don’t know what happened here.” Initially, Mr. Coaster gave a false name. He said he was supposed to be with his surety. Eventually, the officers determined his real identity. Mr. Coaster did not appear impaired, but Constable Bresele thought that he might have been drinking.
[15] EMS arrived at 13:52. At that time Mr. Bottle was coherent but then his condition deteriorated. Mr. Bottle did not implicate anyone as his assaulter nor did he say that he had been assaulted: “Been sitting here all day, don’t know what happened.”
[16] Constable Bresele admitted that no one that he encountered on this call matched the description that was relayed by dispatch.
Constable Augier
[17] When he arrived, he noticed three males walking away from where another male was laying on the ground. He did not observe any injuries to the male on the ground, and in particular, did not note any facial or head injuries. There is no indication from Mr. Bottle that he had been the victim of an assault.
[18] When the EMS arrived, no major injuries were noted on the individual then identified as Mr. Bottle.
[19] When Constable Augier attended at the hospital after Mr. Bottle was transported, he was told that Mr. Bottle had suffered a “brain bleed” and that medical staff were unsure if Mr. Bottle would survive.
Constable Fennell
[20] Constable Fennel was a Detective Constable at the time. He attended at the scene and canvassed for video surveillance. The only video surveillance that might assist with the investigation came from the KFC. According to Constable Fennel the videos depicted two separate assaults: one at the front of KFC towards Fort William Road and one at the side of KFC at the rear of the CTC. He observed that the second assault involved a person or persons stomping on another person. All that is depicted is a view from the waist down and what can be seen are dark pants and white or grey shoes. He admitted that there were potentially two people with white shoes or grey shoes. He observed that the videos show a person with a grey backpack.
Positions of the Parties
[21] The Crown submits that the totality of the evidence, that is, the videos and Mr. Coaster’s statement – “It was me” – is sufficient to establish that Mr. Coaster was the person who assaulted Mr. Bottle and caused these injuries. The Crown notes the similarity of the clothing worn by Mr. Coaster in the body cam video and the clothing worn by the assailant in the KFC video depicting the altercation near Fort William Road. With respect to the kicking or stomping behind CTC, the Crown relies upon the similarity of the colour of the pants and footwear of the person or persons kicking and the clothing worn by Mr. Coaster.
[22] Counsel for Mr. Coaster submits that there is no evidence that Mr. Bottle was assaulted and that his injuries could have been the result of events other than assault. According to Mr. Bottle, he had been sitting there all day and he did not know what happened. Mr. Bottle was found near the base of a very high exterior staircase, the implication being that he might have fallen.
[23] Mr. Coaster’s utterances are equivocal. While he did say: “It was me” initially, after he was formally cautioned, he denied knowing what happened.
[24] Counsel for Mr. Coaster argues that the videos, especially the videos showing the back of the CTC are of limited assistance because only the legs and footwear are noted.
[25] Most importantly, as Constable Bresele noted, none of the persons present, including Mr. Coaster, matched the description given by the witness to the police dispatcher.
Analysis and Disposition
The Statement – It was me
[26] The circumstances in which this utterance was made are clearly set out in the body cam video. Mr. Coaster was not asked anything. The officer stated: “right now, you’re all being detained pending an assault investigation.” Other individuals stated it was not them. Mr. Coaster clearly states, “it was me”. No inducement or threats were made. I am satisfied that that utterance was made voluntarily. However, in the circumstances, this statement is somewhat ambiguous. The ambiguity is confirmed by Mr. Coaster’s later statement that he did not know what happened.
The Videos
[27] I have watched the videos many times after observing them first in the courtroom during the trial. I find that it is impossible to discern with any degree of confidence what some of the videos depict. The theory of the Crown case is that one video depicts Mr. Coaster kicking or stomping upon Mr. Bottle’s head. There is nothing to confirm that it is Mr. Coaster other than similarity in colour of shoes and I note that there appears to be more than one person wearing white or light-coloured shoes.
[28] The witness described the attacker as a male wearing grey clothes, hat, and wearing a grey backpack. Mr. Coaster was observed in the body cam video wearing blue sweatpants, a black hoodie, a plum-coloured T-shirt, and a blue Leafs toque. He is not seen with a backpack in any of the videos. Mr. Coaster does not match the description relayed to 911 by the witness. A person with a grey backpack is observed in the videos.
[29] The Crown has not proven that Mr. Coaster was the person who kicked Mr. Bottle.
[30] However, the video depicting the altercation near Fort William Road is of better quality. I am satisfied, beyond a reasonable doubt, that the larger male is Mr. Coaster. He is wearing the same colour T-shirt, dark pants, and white shoes that he is observed wearing in the body camera video a short time later. The body type is the same. I note that the times expressed on the timeline are not likely precise. I am also satisfied, beyond a reasonable doubt, that the male with the black hoodie is Mr. Bottle. His black clothing and his straight long hair can be seen in the footage depicting the Fort William Road altercation, which match his clothing and hair in the body camera video. The body type is the same.
[31] I am satisfied that Mr. Coaster was assaulting Mr. Bottle in the video capturing the fight near Fort William Road. Mr. Coaster punched Mr. Bottle several times, but he did not kick Mr. Bottle.
[32] I am satisfied, beyond a reasonable doubt, that in this case, there were two separate assaults, one by Mr. Coaster and one by a male wearing grey clothes, a hat, and carrying the grey backpack. This is not a situation in which two or more each beat the victim. This is a situation where two people consecutively (but separately) beat the same victim. I find that these are separate incidents.
[33] There is no evidence before me that the assault by Mr. Coaster upon Mr. Bottle caused the serious injuries constituting the aggravated assault. In fact, the video depicts Mr. Coaster helping Mr. Bottle to his feet after the assault and they walk together back to the area behind the CTC.
[34] Accordingly, I find Mr. Coaster not guilty of aggravated assault but guilty of the lesser offence of common assault upon Mr. Bottle. As a consequence of this conviction, he is also guilty of the two counts of breach of the probation order by failing to the keep the peace.
“orignally signed”
Regional Senior Justice W.D. Newton
Released: May 27, 2024
COURT FILE NO.: CR-23-0091-00
DATE: 2024-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
- and –
Wesley Coaster
REASONS FOR JUDGMENT
Newton R.S.J.
Released: May 27, 2024