R. v. Pal-Deng, 2015 ONCJ 2

Citation: R. v. Pal-Deng , 2015 ONCJ 2 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — ANGUEI PAL-DENG ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Stanton For the Crown D. Taylor For the Defendant Heard: October 3 and 6, November 3 and December 18, 2014 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Anguei Pal-Deng, the defendant, is alleged to have pushed an elderly woman down some stairs at the Dufferin Mall in Toronto on March 6, 2014.

He was charged with common assault and failing to comply with the term of a probation order requiring him to keep the peace and be of good behaviour. He was detained in custody pending his trial for some seven months, until ordered released on bail mid-trial, on October 6, 2014. The maximum carceral penalty that may be imposed upon conviction for the offence of assault where, as here, the Crown proceeds by way of

summary conviction is imprisonment for six months. [ 2 ] Four witnesses testified at the behest of the Crown: the 82-year-old complainant (Maria Ferreira), the Mall’s security manager (Rafael Leyes) and two women (Stephanie Wand and Tessa Tsang) who were in the general vicinity of the complainant’s fall. The defendant also testified. He denied assaulting Ferreira. A security video recording of the brief interaction between the defendant and the complainant (strangers to each other) and of the surrounding events forms part of the trial record. Crown counsel invites me to reject the defendant’s exculpatory account.

The remainder of the evidence, she says, more than amply meets the Crown burden to establish the defendant’s assault of the complainant beyond reasonable doubt. [ 3 ] The defendant concedes he was at the Dufferin Mall on March 6, 2014 and that he had a passing exchange (including momentary physical contact) with the complainant Ferreira. He also concedes that he was subject to a probation order at the time, including a condition that he keep the peace and be of good behaviour. Accordingly, the only issue of moment is whether the defendant’s brief contact with Ferreira was an assault.

The defendant’s position, in essence, is that any physical contact he had with the

complainant was accidental or, in any event, did not amount to such non-consensual application of force to constitute an “assault” in law. Accordingly, he says, he is entitled to an acquittal on both counts. I am of the same view and, as a result, found the defendant not guilty on December 18, 2014. My reasons follow. B. EVIDENCE (

a) Introduction [ 4 ] The complainant alleges the defendant pushed her down a set of stairs. Two women who then happened to be near the stairs confirm her account. The defendant says he did no such thing. A fixed-focus CCTV recording of the staircase preserves an independent and objective record of the transaction at issue. And, finally, the mall’s security manager details certain material events following the fall. I turn now to the evidence afforded by each of these perspectives. (

b) The Complainant’s Account [ 5 ] The complainant, Maria Ferreira, was 82 at the time of the incident. She testified through a Portuguese interpreter. [ 6 ] Ferreira walked with the aid of a cane she had been using for about two years at the time of the events at issue. She was then under medical care for the treatment of diabetes or to prevent its onset. To this end, she attended at her doctor’s office for bloodwork between 10 and 11 on the morning of March 6, 2014, as she has every three months for the past five years. Her doctor drew two vials of blood.

As required by the procedure, she had not consumed any food since 9pm the previous evening. She denied feeling dizzy. She had a candy and some water after seeing her doctor. She took a bus to the Dufferin Mall where she spent between 30 and 60 minutes paying bills and doing some shopping. She was about to leave the mall when the incident occurred. [ 7 ] Central ascending and descending escalators separate two broad sets of stairs that connect the mall’s ground floor to the floor one level above. Each of the stairways is divided by a landing at its halfway point. Ferreira was on the higher of the two floors.

She feared falling if she used the down escalator. She was, instead, going to walk down the stairs to the mall’s ground level. She could see the defendant with his back against the right wall at the top corner of the stairs as she approached them. Ferreira was carrying a purse and a bag as well as her cane. She moved the cane from her right to her left hand as she intended to use her right hand to grasp the railing attached to the wall against which the defendant was leaning. She recalls saying, “Excuse me” a couple of times. She did not hear the defendant say anything in response.

In Ferreira’s words, he “grabbed my arm and threw me down the stairs”. She did not know the strength of the “grab” but says it was to the upper part of her right arm. She described the physical force as a “push” that, she says, caused her to fall to the bottom of the stairs. Ferreira did not testify that she actually grasped or even reached for the railing along the wall to the right of the staircase. [ 8 ] An ambulance crew attended and took Ferreira to the Toronto Western Hospital. Fortunately, she did not suffer any fractures or other acute physical injuries and was released later the same afternoon.

She was, however, clearly emotionally traumatized by the event and attributes her continuing sense of reduced mobility to her fall down the stairs. (

c) The Independent Witnesses’ Accounts (

i) Stephanie Wand [ 9 ] Stephanie Wand presents as a woman in her late-20s or early-30s. She was passing through the Dufferin Mall on her way to the local YMCA. On Wand’s account, she was about four or five steps down the escalator when her attention was attracted by a verbal “confrontation” or “argument” between an older woman, the complainant, and a man, the defendant, at the top of the adjoining staircase to her right. The woman, she says, was moving her right hand to the railing when the man pushed her. The “push” involved a “sweeping” motion made by the man’s lower right arm.

Wand located herself about halfway down the escalator when the push occurred. She could not specify the point of physical contact, but based on her observations she inferred it was somewhere between the top of the complainant’s right shoulder and the right side of her mid-back. The woman then rolled down the stairs to a landing where Wand attended on her. The defendant came down the stairs, stared at the complainant and then returned to the top of the stairs.

The woman’s earing had become dislodged and her ear was bleeding. [ 10 ] On watching a courtroom video screening of the incident, Wand agreed that the woman’s fall ended on the steps of the stairway and not the landing below. (ii) Tessa Tsang [ 11 ] Tessa Tang is 27. She works in a dentist’s office and was making a delivery to another dental office at the top of the stairs in the Dufferin Mall when she saw a young black man, the defendant, talking with an older woman with mobility issues at the top edge of the stairway.

The woman (clearly the complainant) wanted to use the railing next to where the defendant was standing to descend the stairs. The man and woman’s “body language” suggested some “negotiations” between them, although Tsang could not hear the content of any exchange. [ 12 ] The complainant carried a cane and made repeated efforts to put her hand on the railing. The man did not move at first, but then he “pushed” the woman down the stairs. Tsang, still in direct examination, withdrew the word “pushed”. Rather, she explained, the man touched the complainant’s arm, following which she rolled down the stairs.

Tsang could not recall which of the complainant’s arms the defendant touched. [ 13 ] The Crown endeavoured to refresh Tsang’s memory by way of a two-page statement she had given the police at the scene. On reading the statement, Tsang re-adopted her initial characterization of the physical contact as a “push”, and one directed to the complainant’s right arm. She could not, however, say which hand or part of his body the defendant used to affect the push, what amount

of force he used or whether he said anything at the time. Tsang went down the stairs to help the complainant. The defendant did as well, standing next to where the complainant had fallen. One of the woman’s ears was bleeding. (

d) Account of the Mall’s Security Supervisor [ 14 ] Rafael Leyes is the security supervisor at the Dufferin Mall. He was advised of the incident just after 11am on March 6 th . He attended the scene and observed the complainant lying on the ninth step from the top of the stairway. She appeared confused and in pain and was holding her right ear. There was no other visible injury. The defendant was then standing at the top of the stairwell. Leyes recognized the defendant, as he tends to frequent the mall. He volunteered that the defendant had never caused trouble.

The police were called and statements were taken from some potential witnesses. Leyes escorted the defendant to the mall’s security office where the police ultimately arrested him. (

e) The Defendant’s Account [ 15 ] The defendant is 25 years old. He has a single conviction for assault, for which he was placed on probation in January 2014. Sometime earlier he had been banned from attending the Dufferin Mall. [ 16 ] The defendant required the assistance of an interpreter fluent in Dinka, a language only spoken in a relatively small part of southern Sudan. Despite his minimal court experience and lack of certification or formal qualifications, Crown and defence counsel agreed to proceed with the services of the sole Dinka interpreter the court system was able to locate.

There were some translation difficulties, but other than occasional requests for repetition neither counsel took objection to the interpreter’s competence. While there may have been some loss of nuance, I am of the view that the interpreter’s inexperience did not compromise communication of the essence of the defendant’s testimony respecting the core events. [ 17 ] The defendant went to the Dufferin Mall on the morning of March 6, 2014. He bought a coke and drank it while leaning against the wall on the landing at the top of a broad staircase.

He discarded the empty container in a wastebasket on the same landing and then returned to his original position, leaning against the wall at the top of the stairs. He was considering leaving when a woman, the complainant Ferreira, approached the defendant from behind. He was unaware of her presence until she said, “Please excuse me. Let me pass.” She was then very close to the defendant and beginning to make her way around his left side to descend the stairs. He pressed back against the wall to allow Ferreira to pass while turning slightly to his left, in her direction. He said, “Pass here”.

As he spoke these words he extended his left arm to demonstrate an appropriate pathway. The complainant’s close proximity caused him to “accidentally” make a “little touch” on her right arm. “I was”, he said, just “telling the woman to pass”. To the defendant’s surprise, the complainant fell and then rolled down the stairs. He denied that he intentionally pushed the complainant, that he blocked her passage or that he did not want to make room for her to pass. There was, he said, ample room for her to descend the staircase despite his presence. She did not move to extend her arm towards the rail.

Further, he did not realize she was carrying a cane (consistently translated as “stick” or “walking stick”) until after she fell. [ 18 ] The defendant went down the stairs to help the complainant after her fall. He returned to his position at the top of the stairs when the complainant appeared to stand up. Mall security then attended. They asked him to wait. He did. (

f) The Mall’s Security Videotape [ 19 ] The Dufferin Mall’s security system includes CCTV monitoring of various areas in the mall, including the staircases and escalators. Although not focused on the particular corner in which the physical contact occurred, a video recording entered as an exhibit captures most of that incident as well as the pedestrian traffic on the escalators and staircases and their related landings. The video also includes a graphic of the passage of time so as to permit a precise temporal parsing of the events. The CCTV camera is installed somewhere above the staircase and escalators.

Its point-of-view, then, is from above the stairwells and angled across them from right to left and down so as to also capture the ground-level landing and the large mall exit doors to which this foyer area leads. [ 20 ] The configuration is that of a conventional plaza: central up and down escalators separate two broad sets of steps, both of which are sufficiently wide to accommodate pedestrian traffic in each direction. Each of the two staircases has a railing on each side and one that runs down the centre of the stairs.

There is a large landing across the top (a commercial or office level), another much smaller landing mid-way down each staircase and, finally, a large landing or foyer area at the bottom that stretches across the width of the escalators and the two staircases and separates them from the mall’s exit doors.

There are approximately fourteen steps from the top of the stairs to the middle landing of each staircase and, it appears, an equal number of steps between that landing and the one forming the bottom foyer or vestibule in front of the exit doors. [ 21 ] The brief contact between the defendant and the complainant occurs on the commercial or office landing immediately above the first descending step of the staircase that appears on the far right of the video recording.

The critical interaction transpires at the junction of the wall and the landing at the top of this staircase, an image captured at the bottom right corner of the video screen. The camera angle is such that only the upper portions of the defendant’s and complainant’s bodies, as seen from the back and side, are visible during their exchange. However, the physical movements of both parties’ arms and heads are relatively clearly recorded. [ 22 ] The portion of the video recording entered as an exhibit begins at about 11:00am.

The defendant’s back is pressed against the wall at the top and to the right of the staircase on the right side of the screen. He is standing on the landing, immediately above the first step. At about 11:00:23, the defendant walks purposefully across the bottom of the screen towards, on his evidence, a garbage can where he disposes of the coke he was drinking. He then returns to the top corner of the right staircase. [ 23 ] The defendant is re-settled into his position against the wall by 11:00:40am. He is looking forward, his head facing the escalators that divide the two staircases.

At 11:01:25, a woman (Stephanie Wand) begins to go down the central escalator. A second later, at 11:01:26, the top of the complainant’s head is first visible as she approaches the defendant from behind and to his left, and then moves around his left side to make her way down the empty staircase. The defendant turns his head slightly left, in Ferreira’s direction, and raises his left hand as she, while still on the landing, begins to pass him. He makes very brief contact with Ferreira’s lower arm or

elbow. His gesture appears to be an offer of physical support or guidance or direction. It does not present as a grasp, a push or a shove orin any way the application of aggressive force. There is no movement of his right arm or hand or his shoulders. There is no touching ofthe complainant’s shoulder or back. The complainant never extends her arm towards the railing behind the defendant. She does not atany point turn to directly face the defendant.

There is no discernable conversation, and certainly nothing resembling a verbal“argument” or “negotiations”. [24] The complainant seems to extract herself from the defendant’s touch. She either pulls her arm away or physically recoils. Allof this – Ferreira’s first video appearance, her exchange with the defendant, his brief touching of her arm, and her severance from thedefendant – occurs within a single second.

Wand, meantime, is halfway down the escalator and still facing forward, toward the doorsbelow, rather than toward the interaction at the top of the stairs to her right. [25] The complainant has fully separated from the defendant by 11:01:27, Her momentum carries her to her left as she turns andfalls face-forward toward the railing that runs down the centre of the staircase. At this point, she is still on the landing at the top of thestairs, and the cane and bags she is carrying in her left hand are for the first time “on camera”.

Ferreira reaches out to grasp the centralrailing with her right hand, loses her balance and falls backwards onto the stairs at 11:01:28. Within a second, an unidentified personascending the same staircase reaches over the central railing to offer assistance. The complainant ultimately comes to rest on the eighthor ninth step down. [26] At 11:01:30, Wand reaches the bottom of the escalator and turns her head in the direction of the fallen woman. Neither herhead nor body posture afford any indication that Wand’s attention had earlier been drawn to the events.

Even if it had, her location at theinstant of physical contact (as recorded by the CCTV camera) could not possibly have allowed her a clear view of the brief touchingcaptured on videotape. [27] The defendant follows the complainant down the stairs, immediately kneels beside her and appears to offer assistance. Others(including Wand) soon join the defendant. At 11:01:49, the defendant slowly walks back up the stairs, resuming, by 11:01:58, hisearlier position with his back against the wall at the top of the staircase.

He maintains this posture until at least 11:10am, when theCCTV recording entered as an exhibit concludes. [28] The complainant, at 11:03:30, places her left hand on the central railing and levers herself into a sitting position on the steps. A member of the mall security staff first attends on her at 11:04:10. Rafael Leyes, the security supervisor, is by her side by 11:05:00.

Both pass directly in front of the defendant as they make their way down the stairs. [29] A video image of the woman identified as Tessa Tsang faintly appears at the opposite side of the upper landing during thedefendant’s brief exchange with the complainant. From that position, Tsang’s view of the defendant’s physical conduct, or at least thetouching captured on the video, is almost certainly obscured by the complainant who is then standing immediately in front of thedefendant and between him and the witness. C. ANALYSIS (

a) Introduction [30] The testimonial evidence led by the Crown lends credence to the central allegation: that the defendant assaulted thecomplainant by pushing her down the stairs. The defendant denies this allegation. Accordingly, the correct legal analysis is onecontrolled by the Supreme Court’s seminal decision in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 respecting theproper approach to credibility assessment in, as here, cases of conflicting testimonial accounts. (See R. v.

Harris, 2014 ONCJ 401, atparas. 47-50, for a recent inventory of the governing law and one that I here apply.) Critical to this exercise is the videotaped evidence ofthe interaction between the defendant and complainant. I have watched this video on a number of occasions, in both “real time” and slowmotion. As already noted, the camera’s point-of-view is from above and across the expanse of two wide sets of stairs divided by up anddown escalators. [31] As summarized earlier, the defendant is standing on the landing at the very top of the long flight of stairs on the right side ofthe video frame.

His back is against a wall that, if one is descending the stairs, forms their vertical right margin. The complainantapproaches the top of the stairs from off-camera right. She is behind and to the defendant’s left and begins to makes her way around hisleft side. She does not extend her arm towards the railing behind the defendant, and certainly not repeatedly.

There is no audio trackand the resolution of the video image is not fine enough for me to discern whether any words are exchanged between the two, but thereis certainly nothing resembling a verbal “confrontation”, “argument” or “negotiations”. [32] The defendant raises his lower left arm towards the complainant’s right arm or elbow as she begins to pass him. The motion isneither abrupt nor forceful. It is an upward gesture with an open palm. It appears like nothing so much as an offer of physical guidance,direction or support. There is nothing patently aggressive or menacing about the action.

The complainant appears to pull her arm awayfrom the defendant; she may actually recoil. She loses her balance in the process, strikes the central railing on the staircase and then fallsbackwards and rolls down several steps, coming to rest on the eighth or ninth tread. The defendant follows her down the steps, crouchesbeside her and tends to her, as do several others who then quickly gather. He maintains that position until, about ten seconds later, herises and makes his way back to the top of the stairs where he resumes his original posture, leaning back against the wall. [33] A more sinister

interpretation of the defendant’s contact with the complainant may be available. It is possible (but no higher)to read Ferreira’s physical separation from the defendant as the product of something other than inadvertence or accident, of his pushrather than her pull. This is a strained construction. It is not an inference I draw on repeated viewings of the DVD, nor is it one thatnaturally presents itself on a fair reading of the video in all the ambient circumstances.

I bear in mind that the complainant was 82 yearsof age, used a cane to support herself when walking, either suffered from diabetes or a related pre-condition, had not eaten anything (butfor a single candy) in at least 14 hours, and had just had two vials of blood drawn from her at her doctor’s office. I also bear in mind thatthere is no evidence of animus, motive, of any ancillary criminality or nefarious purpose, or of the defendant suffering from a mental

disorder or intoxication. The evidence of his demeanour does not suggest frustration or anger. Nor is it alleged that he uttered any hostile, threatening or beseeching words. I note, as well, that the defendant immediately attended on the complainant following her fall and made no effort to leave the scene, even after mall security and then the police attended. [ 34 ] The security officer’s testimony adds nothing to the critical evidentiary matrix.

I am mindful, however, of the evidence of the two passers-by and the complainant as to the latter having being pushed down the stairs by the defendant – evidence that, if accepted, would clearly make out both offences. To be clear, I have grave doubts about the reliability of all three women’s accounts. The complainant’s testimony is inconsistent with the defendant’s as to the application of physical force and with the video evidence that, as I read it, fully supports the defence of incidental touching or accident.

And neither of the two passers-by had a clear observation of the event – one that was very brief, involved complete strangers and was entirely unanticipated. Indeed, their respective sightlines were positively obscured. [ 35 ] Wand’s account of the physical contact is particularly unworthy of credit. It is patently inconsistent with the recall of other Crown witnesses (including the complainant) and the video evidence. Based on the video recording, I am extremely doubtful that she perceptually attended to the incident until after the complainant had fallen.

Both the video evidence and that of the complainant herself directly contradict Wand’s testimony as to the occurrence of a verbal confrontation or argument and of Ferreira reaching for the railing to the back of the defendant. Contrary to Wand’s description of the physical contact, the defendant at no time lifted his right arm during the critical exchange, let alone swung at or pushed the complainant with it.

And, as she ultimately conceded on being shown a portion of the video recording, Ferreira rolled only to the eighth or ninth step of the staircase, not the lower landing where Wand originally says she endeavoured to assist her. [ 36 ] Tsang’s evidence is similarly troubling. As with Wand, her recall of a conversation or negotiations between the defendant and the complainant is belied by the latter’s testimony, that captured on video and the extreme brevity of the entire exchange.

Nor does either the complainant or the video support her claim that Ferreira repeatedly tried to put her hand on the railing behind the defendant. These core testimonial recollections have no empirical foundation. Further, the defendant crouched and physically tended to Ferreira after her fall rather than, as both Tsang’s and Wand’s testimony suggest, aloofly standing over her. [ 37 ] Each of three women, no matter how well intentioned, tried to make narrative sense of the events by working backwards from their consequences.

The result is a measure of reconstruction or confabulation or, at minimum, the assignment of aggression or blameworthiness to an ambiguous incident for which the only certainty was its unfortunate result.

Most significantly, the “push” described by both passing women, and by the complainant, is simply inconsistent with my settled construction of the nature of the physical exchange immutably captured by the CCTV surveillance. [ 38 ] While I am strongly inclined to believe that the defendant merely tried to oblige or convenience the complainant, the only legally critical conclusion I need reach to compel an acquittal – and one founded on the defendant’s testimony and the buttressing CCTV evidence – is that I have a reasonable doubt regarding any inculpatory alternative.

A physical gesture of assistance or support is not an assault in the presenting circumstances. Nor is a momentary accidental touch. In the result, the defendant is found not guilty of both counts on which he was arraigned. Indeed, the probative impact of the videotaped evidence is so compelling that I would have reached the same verdict had the defence elected not to call evidence. [ 39 ] Finally, I feel compelled to note that absent the CCTV evidence the result may have been tragically different.

The complainant is a sympathetic witness who has no redress, financial or moral, for the very real trauma she suffered on March 6 th . The two independent witnesses each testified in a straightforward and facially guileless and impartial manner that enhanced their credibility. The defendant, on the other hand, is a culturally challenged and unsophisticated individual who, if understandably, appears to have some difficulty appreciating the basis for his prosecution.

It is of profound concern that justice could so easily have miscarried but for the good fortune that the very physical exchange at issue was preserved on videotape. It is of at least equally profound concern that the defendant spent many months in remand custody for offences for which factually exculpatory evidence has long been in the possession of the state. D. CONCLUSION [ 40 ] The same allegation – that the defendant applied physical force to the complainant – grounds both offences with which he is charged.

I have more than considerable doubt that there was any non-consensual application of physical force, and ample reasonable basis for such doubt. Accordingly, the defendant is found not guilty of both counts. [ 41 ] I am sympathetic to the complainant’s difficult circumstances. It is understandable that she would advance an explanation other than accident or fate for her misfortune. I also understand, if regrettably, why the two passing women may have read the events in a fault-finding manner, and why the apparent strength of their convictions may have helped initiate this prosecution.

Less understandable is why the prosecution was pursued following a video-based assessment of these witnesses’ evidence. Fleeting observations that generate misidentification are a notorious cause of wrongful convictions. Momentary observation of ambiguous conduct resulting in adverse consequences can also lead to miscarriages of justice. A videotaped recording, like DNA evidence, has the forensic power to both convict the guilty and, as in the instant case, exonerate the innocent. [ 42 ] I believe, in short, that the defendant is factually innocent.

I regret that I do not have authority to do more on behalf of this Court than extend to him an apology for the protracted ordeal he has endured. Released on January 5, 2015

__________________________ Justice Melvyn Green