r v. DONAVAN-ANTHONY BRETT, 2015 QCCQ 11

R. c. Brett 2015 QCCQ 11 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Criminal and Penal Division Nos. 455-01-012860-130 455-01-012861-138 DATE: January 6, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

DONAVAN-ANTHONY BRETT (Seq. 001) and CHARLES-PAUL BRETT (Seq. 002) Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Donavan-Anthony Brett (hereinafter referred to as “Donavan Brett”) and his father, Charles-Paul Brett (hereinafter referred to as “Charles Brett”) are both accused of assault of Alain Marceau during which they inflicted bodily harm on him on May 5, 2013 in Cowansville.

JC00K1 [ 2 ] Donavan Brett is also accused of mischief in regard to Alain Marceau’s vehicle the same day, of assault of Alain Marceau with a weapon and of assault of Alain Marceau causing bodily harm. [ 3 ] The evidence in these two cases was adduced jointly, and this judgment will deal with the two cases, which are related. THE FACTS [ 4 ] It was agreed at trial that there were two distinct incidents, which were, however, consecutive and interrelated. The first incident [ 5 ] The first incident occurred around 9:30 p.m. on May 5, 2013. Alain Marceau was driving his vehicle on rue Buzzell in Cowansville.

He was with his friend Larry Greenwood, who was in the front passenger seat of the vehicle. [ 6 ] Either because he saw that a vehicle was following him closely with its high beams on or because, in addition to that, Alain Marceau wanted to stop his vehicle on that street and go to his destination on foot a little farther on, he stopped his vehicle on the side of the street. [ 7 ] Before he realized what was happening or was otherwise able to react, two individuals came up to his vehicle. One of them, probably the passenger in the second vehicle, was carrying a baseball bat.

Insults were uttered to Alain Marceau and blows from a bat rained down on Alain Marceau’s vehicle. The windshield was shattered, as was the vehicle’s rear window and the windows on the driver’s side, where Alain Marceau was sitting. Only the side where Larry Greenwood was sitting remained intact. Once the windows were broken, the blows continued, even through the sunroof, which was open at the time. [ 8 ] Alain Marceau was hit several times on the arms and head when he tried to protect himself. He placed his legs in the direction of the opening of his door and also received blows to his feet.

There were glass shards throughout the interior of the vehicle, and on and in Alain Marceau’s clothing. [ 9 ] After a few minutes, the attack ended. At trial, both Larry Greenwood and Alain Marceau identified the accused Donavan Brett clearly, positively and without hesitation, although they did not know him at all until the incident. Alain Marceau was unable to identify the other assailant, but said he believed the assailant could be one Jessy-Lee Burch or a similar name. He identified him mainly because of the vehicle used by their assailants. I will come back to this.

[ 10 ] When the attack ceased, the two assailants went back to their vehicle. Alain Marceau possibly tried to start his vehicle. He was in a bad way, likely bleeding abundantly. According to the witnesses heard, he was [TRANSLATION] “in shock” or [TRANSLATION] “panicked”. He himself remembers very little about those moments. [ 11 ] The preponderant evidence indicates that he subsequently got out of his vehicle, went up to the assailants’ vehicle, and gave it a kick and a punch.

Reportedly, the passenger of the vehicle, the one who had delivered most of the blows, got out of the vehicle, still holding the baseball bat in order to attack Alain Marceau. [ 12 ] Alain Marceau reportedly ran away, evidently in a somewhat disorderly fashion, given his condition. The witnesses saw him run toward rue Church, with his assailant pursuing him with the bat.

A few minutes later, the assailant returned to the vehicle where the second individual was waiting for him and, together, they left in the direction of rue Church. [ 13 ] According to Alain Marceau, he went to the balcony of a home on rue Church to ask for help, but no one responded. He said he walked toward Place Caroline, the location of a series of low-rent housing buildings. The second incident [ 14 ] Continuing on his way, Alain Marceau went through the backyards of other buildings to reach Place Caroline.

After jumping over a fence, he found himself in the backyard of a duplex whose occupants he did not know. [ 15 ] He then realized that, coming from Place Caroline, the individual who had attacked and later pursued him with the baseball bat had just jumped over the fence and was there. [ 16 ] Bear in mind that Place Caroline, a complex of residential buildings, is, in a way, hemmed in between other properties and said to be completely fenced in, except for the entrance for pedestrians and drivers. [ 17 ] The backyard where the second event occurred is located behind a series of three duplexes the common backyards of which adjoin the Place Caroline fence (and land).

The civic address of the buildings (the duplexes) bears the name Place Philippe Fortin. [ 18 ] The evidence is not particularly convincing that the individual whom Alain Marceau saw in the backyard, Donavan Brett, had a bat at that point and, in fact, I do not accept that he did. [ 19 ] Be that as it may, Alain Marceau and Donavan Brett reportedly exchanged a few brief words, one asking the other to identify himself, then Donavan Brett’s father, Charles Brett, rushed toward Alain Marceau and threw him to the ground. [ 20 ] According to Alain Marceau, he was then kicked and punched many times while on the ground.

The blows stopped after a few minutes, at his request. He took advantage of the lull to run away to a nearby convenience store, where he called the police. [ 21 ] He felt the attack was entirely gratuitous. He did not know either of the people who attacked him and could not explain why they did it. [ 22 ] I do not know whether Jessy-Lee Burch, if that is his name, was accused or not in regard to the first incident. I understand that he was not. The evidence also showed that a vehicle similar to the one described by the victim was usually driven by Jessy-Lee Burch.

The vehicle was examined by the police, who found inside chips of paint that definitely came from Alain Marceau’s heavily damaged car. [ 23 ] The evidence also showed that Jessy-Lee Burch lived at Place Caroline, in a dwelling above the dwelling occupied by Larry Greenwood, at least at the time, but the two individuals did not know one another any more than that. Jessy-Lee Burch is the spouse of Jackie or Jacqueline Paquette. I will also come back to this. [ 24 ] The two accused testified in their defence.

According to Donavan Brett, on the evening of May 5, 2013, he left his dwelling at Place Philippe-Fortin for a few minutes to see his spouse, who was at a party in one of the Place Caroline apartments.

He allegedly stayed there only a few minutes and, once back home, after jumping over the fence between the two locations, he saw an individual covered with blood at the back of his lot: it was Alain Marceau, whom, he said, he did not know. [ 25 ] Alain Marceau spoke to him in French, asking him his name and [TRANSLATION] “is it you?” Donavan Brett responded in a rather cavalier fashion that he should mind his own business and Alain Marceau reportedly charged at him. Allegedly, Donavan Brett’s father, Charles Brett, intervened and the father and Alain Marceau found themselves on the ground.

They reportedly had one another in a headlock in that position. [ 26 ] Donavan Brett said that, believing his father was in danger, he punched Alain Marceau three times to free his father. Charles Brett reportedly asked his son to stop hitting. Donavan Brett then offered his hand to Alain Marceau to help him up, which Alain Marceau accepted, but tried again to hit him. Allegedly, a brawl ensued, at the end of which Alain ran away toward the convenience store located nearby. [ 27 ] Charles Brett recounted a consistent story up to a certain point.

According to him, after his son had left for a few minutes and had asked him to watch his children, he saw an individual he did not know in his backyard. Saying that he knew how to handle situations like that, he stated that he spoke loudly to the intruder, whom he did not know, but who was evidently Alain Marceau. [ 28 ] According to him, the intruder refused to leave and was aggressive. He had no difficulty throwing him to the ground and gaining control over him. His son came in and Alain Marceau said “I’m done”.

Charles Brett and Donavan Brett helped him get up but Alain Marceau, rather than leaving politely and apologizing, continued to be aggressive and tried to hit Charles Brett, who prevented him

from doing so, but Alain Marceau managed to get out of his grip and he ran toward the convenience store, where he called the police. [ 29 ] Charles Brett said he was impolite with the police officers and vented his anger on them. He had not noticed how much Alain Marceau was bleeding, but he could not help but notice when he saw his own clothing later on. He did not hit Alain Marceau and Alain Marceau did not hit him. [ 30 ] Rebecca Sherman was then heard. She is the spouse of the accused Donavan Brett.

On the evening of May 5, 2013, she was at the home of her friend Jacqueline Paquette, in her apartment at Place Caroline. Jacqueline Paquette is, of course, Jessy-Lee Burch’s spouse. [ 31 ] Rebecca Sherman said she was at Jacqueline Paquette’s home in an apartment on the third floor of the Place Caroline building. Rebecca Sherman’s spouse, Donavan Brett, had just come to see her there. She then saw him in the backyard of their home with a man.

It looked like problems would erupt. [ 32 ] She said she ran down and, arriving there, noted that her spouse was threatened or at least confronted by an aggressive individual whom she recognized as Alain Marceau, the spouse of a childhood friend, Cara Hayes, who also lived at Place Caroline. She is Jackie Paquette’s neighbour, and lives on the same floor of the same building. [ 33 ] She said she screamed and became hysterical. Alain Marceau tried to hit her husband, but at that point, Charles Brett came out and threw Alain Marceau to the ground.

Donavan Brett punched Alain Marceau three times, then helped him get up. The police were there and everyone was shouting. [ 34 ] Rebecca Sherman has known Cara Hayes since early childhood. They had lost sight of one another, but since Rebecca Sherman moved to Place Philippe-Fortin, they had become friends again. She does not see Cara Hayes’s spouse socially, but obviously does not like Alain Marceau. [ 35 ] He regularly argues with Cara Hayes and leaves at all hours of the day and night, squealing the tires of his automobile and waking the neighbourhood children, including her own.

He plays that little game almost every day. [ 36 ] She recalled that the preceding week, on April 29, 2013, for her birthday, there was a party at her home and Cara Hayes attended, among others. The day in question, the police had been called both before and after the party, and complaints were filed against Alain Marceau because of the way he drove his car and the noise it made.

Both Cara Hayes and Jackie Paquette reportedly called the police. [ 37 ] The police intervened and one or more tickets were given. [ 38 ] Even the day of May 5, with Cara Hayes, another complaint about noise was reportedly filed with the police department concerning Alain Marceau and the police came. Rebecca Sherman was reportedly informed that he had been given another ticket. [ 39 ] But she affirmed that she had never spoken about Alain Marceau to the accused Donavan Brett or his father.

It was only after the police left that she told them that the person with whom they had just had a fight was Alain Marceau, the spouse of her friend Cara Hayes. [ 40 ] Lastly, she said she panicked in the backyard of her home because her friend Cara Hayes had told her all sorts of things about the victim that reportedly “frightened” her. [ 41 ] Lastly, the statement of the accused Donavan Brett was adduced in evidence. It particularly contained the following about the identity of the person he was with behind his dwelling: “I saw him two days before at Caroline’s Place.

He was driving his car like a crazy man near my friends, but i didn’t know his name until tonight” [ sic ]. ANALYSIS AND DECISION [ 42 ] There is no particular legal question to be decided. There is only a question of credibility, that is, factual evidence containing major contradictions between the evidence of the prosecution and that of the defence. [ 43 ] Both the accused testified and, if I believed their testimony, I would have to acquit them. In cases where the evidence is like that, the Supreme Court of Canada has indicated the appropriate way to analyze it. It did so in R. v.

W.(D.) . [1] The proposed analysis is divided into the following three stages: 1. If you believe the evidence of the accused and it is exculpatory, the accused must benefit from that and you must acquit. 2. Even if you do not believe the evidence of the accused but are left in reasonable doubt by it, the accused must benefit from that and you must acquit. 3.

It is only when the first two stages have not made it possible to reach a decision that the evidence as a whole must be examined to see whether you are convinced beyond a reasonable doubt. [ 44 ] The first issue is therefore whether I believe the evidence of the two accused. [ 45 ] Before responding to that question directly, I think it is essential to elaborate on certain elements. Firstly, the evidence appears to have established beyond a reasonable doubt that the victim Marceau sustained an extremely brutal attack on the evening of May 5, 2013. It is impossible to doubt that his vehicle was seriously damaged.

The evidence also established that at least one of the men, the passenger in the vehicle, used a baseball bat, both to demolish the vehicle and to hit Alain Marceau on rue Buzzell in Cowansville. It is obvious that he was the target; Larry Greenwood was in no way targeted.

[ 46 ] I find the evidence equally clear that Alain Marceau did not know his assailants and that, if he had known them, he would have been quick to identify them, to give their names.

The evidence is also convincing that, when the victim left the first incident, he was [TRANSLATION] “in shock” or [TRANSLATION] “panicked”, and was pursued, at least momentarily, by the passenger from the vehicle who was carrying the baseball bat. [ 47 ] Lastly, I also consider it to have been proven in the circumstances that the paint from Alain Marceau’s vehicle was found in the vehicle usually driven by Jessy-Lee Burch, the spouse of the friend of the accused Donavan Brett’s spouse. [ 48 ] That being so, can I believe the version provided by Charles and Donavan Brett? [ 49 ] Let me first deal with Donavan Brett.

He denied (in Court) that he knew the victim. According to him, when he saw the victim in the backyard of his home, he was a complete stranger. Donavan Brett said it was only after the victim took refuge in the convenience store, but before he was arrested, that his spouse identified the victim. [ 50 ] That story is unbelievable. [ 51 ] According to his spouse, the problems caused in the neighbourhood by Alain Marceau’s dangerous driving were recurrent; they occurred almost every day.

She knew full well that the person responsible for those problems was none other than the spouse of one of her best friends since childhood, which happened to be one of her neighbours.

Moreover, that friend had even attended a birthday party for her barely a week earlier. [ 52 ] The confused and contradictory explanations given by Donavan Brett and his spouse about the time that she revealed that fact to him (before or after the intervention by the police, etc.), and the accused’s clear statement (in Exhibit D-2) plainly show that Donavan Brett lied when he said he did not know the victim, at least by name. [ 53 ] Rebecca Sherman’s words weigh heavily in the assessment of Donavan Brett’s testimony, since she is in fact the link among all the protagonists.

She is evidently very good friends with Jackie Paquette, the owner of the vehicle driven by Jessy-Lee Burch in which paint from Alain Marceau’s vehicle was found. Jessy-Lee Burch was clearly recognized by Larry Greenwood as the driver of the vehicle and as one of the victim’s two assailants. Rebecca Sherman is also a close friend of Cara Hayes, Alain Marceau’s spouse, a spouse in a turbulent relationship who confided in her about Alain Marceau and whose words “got her scared”.

In the same statement, filed earlier as Exhibit D-2, the accused Donavan Brett acknowledged that he was aware of the problems between Cara Hayes and Alain Marceau. [ 54 ] Donavan Brett’s version in Court also implies that Alain Marceau, after desperately running away to escape an assailant who was pursuing him with a baseball bat, ended up in Donavan Brett’s backyard completely by chance.

Alain Marceau then believed, erroneously, that he recognized the assailant from whom he was running away, but that at that point, he no longer wanted to flee but, on the contrary, wanted to fight, with his father, a second person, as well. [ 55 ] Alain Marceau, whom he said he was covered in blood (contrary to the testimony of Donavan Brett’s father and spouse), was therefore evidently injured and defenceless.

However, he wanted to start a fight with two people who were in full possession of their faculties, but who, according to Donavan Brett, had nothing to do with the assault of which Alain Marceau had just been a victim. [ 56 ] In addition, I would have to believe that, also by chance, Donavan Brett arrived at almost exactly the same time as Alain Marceau in the backyard after jumping over the fence on his property, which, it must be said, is a pretty unusual way to get home.

What is more, he was coming back from the apartment of the person who owned the vehicle in which paint fragments from the victim’s vehicle were found. [ 57 ] I am definitely not prepared to accept such a story. [ 58 ] Several other elements are hardly credible in their account of the events. Among them, and this also concerns Charles Brett: the versions of Charles Brett, Donavan Brett and Rebecca Sherman are contradictory regarding the time that Charles Brett intervened. According to Charles Brett, he was the first to realize it and intervene when Alain Marceau burst in.

Donavan Brett said that his father went out only after an initial exchange of words. Rebecca Sherman said that the period of time must have been much longer. She had time to observe the two men’s confrontation from the window, go down three floors, from one building to the other, and arrive on the site before Charles Brett went out. [ 59 ] In addition, according to Charles Brett, he had an iron grip on the situation and easily—I would say almost comfortably—had control over Alain Marceau at all times, even when he tried to attack him a second time, after getting up again.

That contradicted his son, who said he had to react to defend his father, who was immobilized in a “headlock”. [ 60 ] That description of Alain Marceau’s aggressiveness is also in flagrant contradiction with the uncontested facts: Alain Marceau ran away from his assailants to the backyard where the second incident occurred. After the attack behind the Bretts’ home, he ran away again, to the convenience store, where he took refuge in order to call the police. Those facts are inconsistent with the fact that he himself was the Bretts’ assailant behind their home.

In any case, his physical condition alone makes that theory improbable. [ 61 ] I could add to that list the inconsistency between the time that Rebecca Sherman said she informed her husband of the identity of the victim and her husband's version, as well as, for example, their testimony concerning the presence or absence of the police during the argument between the Bretts and Alain Marceau.

The latter theory is absurd, considering that the victim fled to the convenience store to contact the police. [ 62 ] My above comments about Charles Brett’s version are highly relevant in explaining why I also do not believe him. His version is not consistent with the other testimony heard in defence. [ 63 ] Moreover, neither of those versions raises a doubt in my mind.

[ 64 ] It remains to be ascertained whether, on the whole, evidence has been adduced beyond a reasonable doubt. I want to point out that the accused Donavan Brett was clearly identified by the victim and Larry Greenwood.

The latter also identified Jessy-Lee Burch as the other assailant on rue Buzzell, whom he knew since he was a neighbour. [ 65 ] Without their leading to a definitive conclusion and without that being necessary to conclude as I will, those facts convince me that, after committing their mischief on rue Buzzell, the accused and his partner in crime returned to Burch’s address, where the accused jumped over the fence to return home. [ 66 ] Alain Marceau was at that location, probably by chance.

He was given another beating and he ran away toward the convenience store. [ 67 ] As for Charles Brett, I am not convinced beyond a reasonable doubt from the evidence heard that he caused Alain Marceau’s bodily harm on the evening in question, although I am convinced that he assaulted him. [ 68 ] Accordingly and for these reasons, I find Donavan Brett GUILTY of counts 1 to 3 in case 455-01-012861-138 and find him GUILTY of count 1 in case 455-01-012860-130. [ 69 ] Furthermore, I find Charles-Paul Brett GUILTY of assaulting Alain Marceau in Cowansville on May 5, 2013, thereby committing an offence punishable on

summary conviction, contrary to

section 266 (

b) of the Criminal Code . __________________________________ Serge Champoux J.C.Q. Mtre. Karyne Goulet Counsel for the prosecutor Mtre. Gerson Foisy Jr. Counsel for the accused Donavan-Anthony Brett Mtre. Danielle Dontigny Counsel for the accused Charles-Paul Brett Date of hearing: October 28, 2014