Case Name:
R. v. D.H.T.
Between
Her Majesty the Queen, and
D.H.T.
[2006] O.J. No. 3581
Ontario Court of Justice
Toronto, Ontario
F.M. Weinper J.
Oral judgment: June 22, 2006.
(29 paras.)
Counsel:
F. Duprey, Counsel on
behalf of the Crown
D. Brown,
Counsel on behalf of D.H.T.
REASONS FOR JUDGMENT
¶ 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.
