Duprey, Counsel on behalf of the Crown
D. Brown, Counsel on behalf of D.H.T.
¶ 1 F.M. WEINPER J. (orally): The defendant stands charged as follows: D.H.T., on or about the 24th day of May, it the year 2005, in the City of Toronto, in the Toronto Region, did in committing an assault on J.D. use a weapon to wit: fireworks, contrary to the Criminal Code; and further that D.H.T., an the 24th day of May, in the year 2005, in the City of Toronto, in the Toronto Region, did being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance directed by the said justice, failed without lawful excuse to comply with that condition to wit: house arrest, not to be away from your place of residence each and every day, except to go directly to and from school, for the purpose of employment or in the company of surety, contrary to the Criminal Code.
¶ 2 Crown elected to proceed summarily and the defendant pleaded not guilty. I heard evidence in this matter on June 16, 2005.
¶ 3 Although I have outlined much of the evidence in this judgment, I have considered the totality of the admissible evidence before me in deciding this case. I have also considered the submissions of the Crown and the defence in arriving at my verdict. Further, I have instructed myself as to the presumption of innocence and the burden of proof upon the prosecution to establish guilt beyond any reasonable doubt. The burden rests with the prosecution throughout; the defence need prove nothing. And further, I do not have to choose between competing versions of events.
¶ 4 In this particular case significant credibility issues arise. And because I have heard evidence favouring both the Crown and the defence, I have instructed myself as to the principles articulated by the Supreme Court of Canada in W.(D.) v. The Queen, (1991), 63 C.C.C. (3d) 397 (S.C.C.) and have applied those principles in this case. As well, I have remained mindful of the fact that it is unnecessary for me to resolve issues of credibility that arise and that my inability to resolve issues of credibility may, in and of itself, depending upon the issues, inure to the benefit of the defence and leave me in a state of reasonable doubt. My findings of credibility respecting individual witnesses were made after consideration of the whole of the evidence and in accordance with W.(D.), supra.
¶ 5 I have also cautioned myself that, in approaching the assessment of credibility in accordance with W.(D.), first I must acquit Mr. D.H.T. if I believe him. And secondly, I am not to evaluate Mr. D.H.T.'s evidence in isolation or compartmentalize each piece of evidence favouring Mr. D.H.T. I must acquit even if I do not believe Mr. D.H.T. if I have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole. And third, even if I am not left in doubt by Mr. D.H.T.'s evidence, I must determine whether on the basis of the evidence, which I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. D.H.T.
¶ 6 The position of the Crown is that on May 24th, 2005, the defendant shot a firework at the complainant's upper back in a park in a housing complex, thereby causing first and second degree burns to the complainant's back. The Crown also alleges that at the time of the incident the defendant was on a recognizance with a condition of house arrest, except for purposes of employment, and that by being in the park on the day in question the defendant was in breach of this condition.
¶ 7 The position of the defence is that the defendant arrived home from work to see young kids, including the complainant, in the park near his house shooting off fireworks. The defendant received a small burn to his cheek as a result of the activities of these children. The defendant knew the then nine year old complainant because the complainant was a friend of the defendant's brother. The defendant went up behind the complainant and grabbed the top of the firecracker to remove it from the complainant's hands. The complainant held fast to the bottom of the firecracker. The ensuing tugging of the firecracker caused it to break in the middle and a volley of fire fell down the tube and onto the complainant's upper back. This was an unfortunate accident caused when the defendant tried to remove the lit firecracker from the child's hands and not an intentional assault.
¶ 8 With respect to the breach of recognizance, the position of the defence is that the house arrest clause contained an exception for employment. The defendant's boss dropped him off in the parking lot of the housing complex after work and he had to cross the park in order to return home. It was while he was crossing the park that this incident took place.
¶ 9 J.D. was nine years old on May 24th, 2005. He was ten years old when he testified in these proceedings after promising to tell the truth. J.D. lives in a townhouse in a housing complex that has its own park where the neighbourhood children play. J.D. knew the defendant since the defendant was the older brother of one of J.D.'s friends.
¶ 10 May 24th, 2005, was Victoria Day, or, as J.D. referred to it, "firecracker day". When J.D. arrived at the park on the day in question the defendant was already at the park. The defendant had brought fireworks to the park. There were a lot of firecrackers at the park and J.D. was playing with his friends and he, himself, had a firecracker at the park. J.D. shot one of the firecrackers in the air. He testified that the defendant pointed the firecracker at him. He was five steps away from him when the defendant pointed the firework at him and J.D. started to run. J.D. was about to put on his hood, but the firecracker hit him in the back of the neck before he was able to put on his hood.
¶ 11 J.D. further testified that he went to a neighbour's house and his mother's friend put alcohol on his burns. Then he went home and his mother called an ambulance. Exhibit One in these proceedings was made up of the Medical Reports describing the burns to the back of J.D.'s neck. They were described as first and second degree burns in the Medical Reports. Exhibits 2A, B and C were pictures of the complainant's injuries.
¶ 12 The defendant testified that his boss dropped him off in the parking lot at the housing complex. He had to walk through the park to get to his home. He saw six to seven kids in the park firing firecrackers off at each other. These children were ten years old, at most 12 years old. He recognized these children from the neighbourhood, although he only knew the complainant.
¶ 13 The defendant told J.D. to stop shooting firecrackers because he may shoot someone in the eye. J.D. started to fire off his "eight shooter," a two foot long firecracker at the other children. One of these children ran behind the defendant and J.D. shot the firecracker and it hit the defendant on the left cheek. The defendant was angry and approached J.D. and grabbed him from behind. The defendant grabbed the firecracker in order to get it out of J.D.'s hands and he grabbed it and pulled it up and it broke and some of its fiery liquid contents broke off and hit J.D. in the neck. J.D. ran screaming.
¶ 14 The defendant further testified that about three minutes later J.D.'s mother came to the park. The defendant was walking home. He tried to explain what happened to J.D.'s mother, but she would not let him speak because she was very angry. She told him she would see him in court.
¶ 15 The defendant testified that he did not mean for J.D. to get hurt. His only thought was to get the live firecracker out of J.D.'s hands.
Breach of Recognizance:
¶ 16 At the time of this incident, the defendant was out on a recognizance with a form of house arrest. This clause read:
"House arrest: not to be away from your place of residence each and every day except to go directly to and from school, for the purpose of employment or in the company of surety".
¶ 17 The defendant testified that he knew he was permitted to be outside of his residence only to go directly to and from school, work or when in the company of his surety.
¶ 18 The complainant testified that he had seen the defendant in the park for about ten minutes when the accident happened. The defendant testified that he had just returned from work when this incident happened in the park and that after everything happened he went straight home. He further testified that J.D. did not go to a neighbour's house after the incident: he went straight home.
¶ 19 The defendant further testified that it took three to four minutes to get to his house from the parking lot. It would take a minute and a half to get from the sandbox to his house. The firecracker activity took place near the sandbox.
¶ 20 The defendant had been walking through the park for two minutes when he was injured on his cheek. He further testified that J.D. lived a minute and a half from the park and that he was back with his mother in short order.
¶ 21 The issue for the Court to decide is whether the Crown has proven beyond a reasonable doubt that the defendant was outside his residence for a purpose other than attending work.
The Defendant's credibility:
¶ 22 I reject aspects of the defendant's evidence. For example, it was only in cross-examination when the Crown asked him, if he was pulling the firecracker back towards himself, would he not have gotten some of the fiery liquid on himself. His response to this, something the court did not hear in examination in-chief was that he got the liquid on his shirt. He had a sweater on and he was not burned. I reject this evidence as false. Did he get it on his shirt or his sweater? And why was he not burned if fiery liquid landed on his shirt, especially given the injuries to J.D.? Surely if his clothing had been burned the Court would have heard about it in examination in-chief.
¶ 23 Further, when the defendant realized that he was having difficultly with his times, that is, how long he was in the park, he stated in cross-examination, in contrast to his earlier evidence, that the incident took place by the sandbox, that the defendant was right at his own backyard when the incident occurred. I reject this evidence as patently false.
¶ 24 The defendant also contradicted himself with respect to his knowledge of the firecracker J.D. was holding. First he said he knew it was an eight shooter because it said so on the firecracker. I do not know how the defendant could see it was an eight shooter from his vantage point of holding the firecracker six inches from the top, given that he had come up behind J.D. to grab the firecracker. And he further testified that he just knew it was an eight shooter; that he could tell it was an eight shooter notwithstanding that he has never purchased firecrackers and he would not have had an opportunity to see what was written on it.
¶ 25 I reject these aspects of the defendant's evidence. However, notwithstanding the difficulties with his evidence, the defendant's evidence, when considered in the context of all of the evidence, leaves me in a state of reasonable doubt.
¶ 26 In this regard, I have considered that J.D. testified in cross-examination that:
The complainant's brothers bought firecrackers from Drug City, although J.D. did not attend at the drugstore when the firecrackers were purchased.
The complainant agreed with counsel in cross-examination that his older brothers brought the fireworks to the park.
Some of the kids started pointing the firecrackers all around the playground trying to scare people, according to J.D.
Although J.D. at first testified that his brother was not acting "silly" with the fireworks, he eventually agreed with defence counsel that both of his brothers were acting silly with the firecrackers. He agreed that his brothers were pointing the fireworks at people to scare them and that the people were running, although he also testified that they did not light the fireworks, that other people from the other neighbourhoods were lighting the fireworks and scaring people who were running around.
J.D. testified that he went home to get a lighter from under his brother's bed; that no one lit the firecracker for him and that he shot the firecracker in the air and that it went off five times.
J.D. agreed that the defendant arrived at the very end and that he did not have any fireworks with him. He contradicted this evidence later by saying that the defendant had one firecracker.
J.D. agreed that the defendant came up to him and told him not to shoot the fireworks at anybody. J.D. also testified that the time the defendant had a firecracker in his hand. But it must be emphasized that J.D. agreed with defence counsel that Mr. D.H.T. came up to him and told him not to shoot the fireworks at anybody.
J.D. agreed that the defendant told him that he should not be shooting off a firecracker.
The defendant has never been mean to him before and never tried to hurt him before and has always been nice to him.
¶ 27 Based upon all of the above, I am left in a state of reasonable doubt with respect to whether the defendant intentionally injured J.D. with the firecracker. It could have been an accident as the defendant described. It is possible. And accordingly there will be a finding of not guilty with respect to the assault with a weapon count.
¶ 28 With respect to the count of breach of recognizance, I am similarly left in a state of reasonable doubt. I am suspicious about the evidence of the defendant that he was working on Victoria Day, and his times were occasionally problematic. Having observed J.D. testify, and although I believe he was attempting to tell the truth as best as he could on this point, I do not have confidence in his ability to accurately recall that the defendant was in the park for ten minutes before the incident. The mother's evidence was that when she attended at the park the defendant was running away and subsequently she testified that he was walking away. I cannot accept the mother's evidence given the internal inconsistencies in her evidence and her evidence regarding calling the police when it has been proven to my satisfaction -- pursuant to the evidence of officer Blair Begbie -- that she did not call the police. And it was only when the police coincidentally attended at her residence to investigate an allegation of child abuse that the incident with the firecracker came to light. In the result, I am simply not satisfied to the standard required in a criminal matter that the defendant breached a condition of his recognizance.
¶ 29 Mr. D.H.T. will therefore be acquitted of both counts, with my genuine thanks to counsel for their assistance to me.
QL UPDATE: 20061002