r v. ANISHA MOORE, 2019 QCCQ 14762

R. c. Moore 2019 QCCQ 14762 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “Criminal and Penal Division” No: 500-01-177680-185 DATE: November 28, 2019 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE PIERRE DUPRAS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

ANISHA MOORE Accused ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ Introduction [ 1 ] The accused stands charged before the Court on a count of attempted murder and another one of assault with a weapon. The events forming the basis of these accusations occurred in Montréal on September 14, 2018 and the offences were allegedly committed on the person of Shelaya Davis. The facts [ 2 ] The facts in this matter are remarkably brief and simple.

So much so that it is difficult to understand how such a situation could degenerate to the point it did. [ 3 ] A few weeks before the said date, Mrs. Davis said she was riding on the number 123 bus returning home from school when the accused made fun of her, while she was apparently eating. According to her, no words were then exchanged. [ 4 ] On the 14 th of September next, again she came back home by bus.

At the point where she has to change from the number 123 to the number 51 bus, around Patricia and Sherbrooke streets, and while she was sitting on a bench near the bus shelter, she said that she heard someone talking on a phone describing her clothing. She added that she also heard that person saying to its interlocutor that she was going to cause her bodily harm. [ 5 ] Mrs. Davis then got up from her bench and went to the person, to ask her why she is describing her in that way.

She claims that at that point, she did not recognize the woman that had made fun of her on the bus before. [ 6 ] As she got close to that person, and before she could finish her question, the accused started pounding her, did she say. The accused grabbed her by the chest and proceeded to hit her, stabbing her on her face and arms. It is only then that Mrs. Davis recognized the accused from the previous event. [ 7 ] Mrs. Davis tried to get her off of her, and managed to hit her twice, but at one point, she noticed that she was bleeding profusely at a hand and she began to feel pain on her left side.

She said that it was extremely bloody and she was shocked. Mrs. Davis said to her assailant: “ You’re going to stab me and run away ?” She then went on testifying describing her stab wounds to her face and to the left side of her body [1] . [ 8 ] At one point, she nearly lost consciousness and a woman that was also there waiting for the bus, helped her. That woman tried to call her husband on the phone.

[ 9 ] Afterwards, she was taken to the Montreal General Hospital, where she remained for four days. During part of the time she spent there, she had to be intubated. [ 10 ] The woman that helped Mrs. Davis also testified. Rena Marla Abraham tells a different story. [ 11 ] She too was waiting for a bus at the bus stop, and she was sitting on the bench also used by Mrs. Davis. She described a scene where Mrs. Davis while on the phone said to another girl that was apparently across the street “ if you want to fight, you should come”. She also would have shouted that.

She also said, at a certain moment, that “ she had developed a problem and wanted to fight her” in talking about this other girl. [ 12 ] Mrs. Abraham went on saying that she did not see the girl cross the street, but that at one point, there was a fight that she did not see at all. The woman that was sitting next to her got up, but she looked away not wanting to be involved. [ 13 ] She did not see the fight, but she saw the aftermath. The woman she helped had stab wounds, was bleeding and passing out. Mrs.

Davis gave her the number of her boyfriend and she called him, she also called Urgences-santé. [ 14 ] The accused testified in her own defence. About the previous event she said that she was on the bus coming back from work with two co-workers. At one point, one of her co-workers would have noticed Mrs. Davis wearing a headband similar to the Grenadian flag [2] . That co-worker, Anick, would simply have said “ Oh look that girl has a Grenadian headband ”.

No other discussions or pointing would have taken place. [ 15 ] At the moment where everyone got out of the bus, the accused described the following events. [ 16 ] She said that Mrs. Davis was accompanied by two persons, a man and a woman, while the two co-workers that were riding the bus with the accused soon left. Then alone, she walked to the stop for the number 51 bus. [ 17 ] Mrs. Davis, arrived with her two friends near the place where the accused was waiting, and Mrs. Davis said: “ I’m going to fight these three black bitches tonight ”. The girl accompanying her asked who? and Mrs.

Davis added “ The girl in front of me and the two that left […] They kept watching me on the bus eating, if they are hungry, why don’t they go home and eat?” [ 18 ] The man accompanying Mrs. Davis then said “ Stop profiling her” and she would have answered “ No she kept watching me ”. [ 19 ] Scared by the nature of these comments, the accused grabbed the first bus that arrived and returned home. [ 20 ] Turning then to the events of the 14 th of September 2018, this is what she had to say. [ 21 ] Coming back from work around 10 o’clock again on bus number 123, she noticed the presence of Mrs.

Davis in the back of the bus. In order to avoid her, because she was scared of her and did not want an altercation, she sat in the front. [ 22 ] When the bus reached the transfer point where she was to catch the number 51 bus, she waited until everyone exited the bus, including Mrs. Davis, and she then disembarked. [ 23 ] She then described Mrs. Davis sitting on the bench near the witness (Mrs. Abraham). As she walked by to reach the bus booth, she heard her saying: “ I’m going to come up to you and punch you in the face”.

She made it to the bus booth and called her sister on her cell phone to ask her to stay on the line because the girl from the time before was there. She said to her sister that she was back loud and aggressive. [ 24 ] She then turned around and Mrs. Davis, who was now in front of her, punched her twice in the face, fast and hard, on her right side, while grabbing her shirt or vest around the chest. [ 25 ] During that whole time, the accused had her set of keys in her hands. Attached to these keys, was a knife that she described as a pocket knife with a blade that measures one and a half to two inches long.

It was a knife that one had to unfold in order to expose the blade [3] ; two hands were necessary to open it. Upon being attacked, she tried to open the knife and when she finally succeeded, the blade found itself pointing downwards rather than upwards, that is on her thumb’s side, did she explain. [ 26 ] She tried repelling the assailant with her hands on her chest area. Her fists were closed because she had the keys in one hand. It is while trying to push her away that she wounded her. Both threw punches, did she add. At one point, she stepped back and Mrs. Davis said:” You are just going to stab me and run”.

She then picked up her things and ran away. [ 27 ] Her sister called her back and took steps to send an Uber to pick her up and bring her to her house. [ 28 ] The next day, a friend told her that an incident had occurred and was reported in the Gazette Internet pages. Recognizing her story, she decided, after discussions with her family, to go to the police to clarify the story, to give her version. [ 29 ] Further, the accused revealed that she does not know how many times she stabbed Mrs.

Davis and that when she got home, she did not have the knife in her possession anymore; she does not know what happened to the knife. [ 30 ] She pulled out the blade of the knife because she was scared of that woman that was twice her size and it was to defend herself. [ 31 ] The last witness that was presented to the Court is Shenisa Tamara Moore, the accused’s sister that was on the phone with her during part of the incidents that night. [ 32 ] She confirms the original phone call and the fact that her sister asked her to stay on the line.

She heard screams in the background and wrestling noises and then the line was cut. A couple of minutes later, she again spoke to her sister on the phone and she sent her an Uber. Afterwards, they both met at Shenisa’s apartment.

Analysis [ 33 ] The accused’s version of the events suffers from different weaknesses or frailties. The first that comes to mind is her explanation about the presence of the keys and thus of the knife in her hands at the moment where she would have been attacked by Mrs. Davis. At one point, she claimed that she had these keys and knife in her hands because she was nearing her house.

But the evidence established that she was living on Dupuis street near Légaré which is quite a distance from Sherbrooke Street. [ 34 ] Actually, exhibit P-3, the Uber bill for the ride described at paragraph 27, establishes a distance 6.08 kilometres between the point where the accused was picked up and the place where she would have been dropped, that is near her sister’s place and close to her own home.

When confronted to that in cross-examination, she added that the keys were in her hands because she was scared of what might happen. [ 35 ] Then during the original description of the events themselves she showed, it appeared, reluctance to admit that she had stabbed the victim. It became clearer upon cross-examination.

On that topic, the Court will add that another of the difficulties with her description is that it leaves very little or no time to open the knife if in fact it was the type of knife that necessitates the use of both hands in order to achieve that opening. [ 36 ] Also, she did not appear candid when, at the beginning of the same cross-examination, she was asked questions about her change of address. [ 37 ] Above all, her conduct after the event, what used to be called post-offence conduct, raises concerns.

After being attacked without any apparent reason by this stranger, after having had to stab her, according to her, to protect herself, she runs away and does not communicate with the police that evening even though, in that logic, she is the victim of this dangerous assault.

She will show up to a police station only the next day after learning that the Gazette reported the matter. [ 38 ] Let’s not forget also that she managed to pick up all her things after the incident, but somehow managed to lose the knife. [ 39 ] But regardless of these remarks, it will become apparent and subject to the following comments, that the Court will not entirely reject her version of what occurred. [ 40 ] On the evidence for the Crown, there are also preoccupations about the truthfulness of Mrs. Davis’s testimony.

Her answers when confronted to her earlier charges and pending cases, where far less than convincing and sometimes in direct contradiction with the documents produced by the defence [4] . The Court did not and does not believe that she does not know that she is being charged criminally at the municipal Court for the different offences found in exhibit D-4. [ 41 ] Further, the Court does not believe that she did not recognize her assailant until the assault had begun.

In the general circumstances of the evidence presented to the Court that is simply unbelievable. [ 42 ] Still looking at the evidence for the Crown, Mrs. Abraham told a completely different story on how the two women met to fight. Remember how Mrs. Davis is on the phone speaking and screaming to this other girl across the street and inviting her to come over to fight. [ 43 ] That is in contradiction not only with Mrs. Davis’ testimony but also with the accused version of the event. [ 44 ] But there is more to be said on that witness.

The Court does not believe her when she says that she did not see the fight at all. That fight was taking place a couple of feet from her and regardless of the reasons she gave, the Court finds that she did not tell the whole story about what she saw. [ 45 ] But in the end, having in mind what was just written or said, there are a few hard facts that remain: Mrs. Davis and the accused were involved in this violent physical confrontation, during which the latter stabbed the former causing her very serious bodily harm. [ 46 ] The accused claims that she acted in self-defence of her person.

The Court recognizes that there is, at the outset, an air of reality to that defense and thus the onus will be on the Crown to establish, beyond a reasonable doubt, that the defence does not apply to this accused in these circumstances [5] . [ 47 ] Even taking the accused’s evidence in the most favourable light, even accepting, for the purpose of this exercise, that she was in fact assaulted the in the way she described by Mrs. Davis, her actions do not meet the requirements of section 34

(1) c) of the Criminal Code as they were not reasonable in the circumstances. [ 48 ] When looking at the different factors identified at the second paragraph of

section 34 of the Code and the evidence in this case, the Court concludes that the actions of the accused do not meet the reasonability test. [ 49 ] At the outset, there were other means available to respond to the potential use of force. The accused already scared, said she, so much so that she called her sister, could have simply left the scene. Rather she took out her keys and knife. [ 50 ] The aggression that was described by the accused was of a physical nature and did not involve the use or the threat to use a weapon of any nature on the part of Mrs. Davis, yet she responded to this by stabbing Mrs.

Davis numerous times. The wounds caused to the victim were not, to say the least, of a superficial nature they were profound to the point that they caused a pneumothorax to the left side of the victim. They illustrate the violence of the response of the accused. [ 51 ] True, the evidence showed that Mrs. Davis and the accused are not of the same size, but that factor is to be analysed with the other relevant circumstances and factors. The fact that an assailant is of a larger size is only one element of the equation and the Court considered it.

[ 52 ] In the end, the Court concludes that, even though the accused is not expected to measure force to a nicety, considering all the circumstances of this case, her response was disproportionate, and excessive. The Court finds that the Crown has established, beyond a reasonable doubt, that the defense claimed by the accused does not apply. [ 53 ] But that is not the end of the matter. The first count of the indictment charges Mrs. Moore with attempted murder contrary to section 239

(1) b) of the Code . The mental element of this offence was defined by the Supreme Court of Canada in the case of Ancio [6] : It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent.

If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to convic​tion for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder. [ 54 ] The Court finds that the evidence in this case does not reveal this specific intent to kill necessary for the completion of the offence. For that reason, Mrs.

Moore will be acquitted of that charge. [ 55 ] On the other hand, for the reasons above relating to the excessive use of force, the Court concludes that the Crown has established, beyond a reasonable doubt that Mrs. Moore is guilty on the second count of the indictment, that is of assault with a weapon on the person of Mrs. Davis. FOR THESE REASONS , THE COURT: DECLARES Anisha Moore guilty of assault with a weapon contrary to

section 267a) of the Criminal Code ; ACQUITS Anisha Moore of attempted murder contrary to section 239

(1) b) of the Criminal Code . __________________________________ PIERRE DUPRAS, J.C.Q. Me Harry Pierre-Étienne Attorney of the DPCP Me Jean-François Boudreault Attorney of the accused Dates of hearing September 26 and 27, 2019