R. v. Seraphin, 2015 ONCJ 515

Citation: R. v. Seraphin , 2015 ONCJ 515 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — McKENZIE SERAPHIN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) L. Collins For the Crown M. Luft For the Defendant Heard: November 21, 2014 and July 27, 2015 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, McKenzie Seraphin, and the complainant, Hiliana Leon, were in an intimate relationship for about three years.

It had its ups and downs, finally flaming out on the evening of February 27, 2014 when, Hiliana alleges, the defendant hit her upside the head with a bottle, lacerating her left ear. The defendant, as a result, is charged with assault with a weapon, the bottle. He denies striking the complainant. He and Leon were the only witnesses to testify at this trial.

The complainant’s medical records and some photographs of her injuries and her home complete the evidentiary record. [ 2 ] As always, the legal onus rests on the Crown to establish the essential elements of the offence charged or, here, the included offence of common assault on the conventional standard of proof beyond reasonable doubt that obtains in all criminal prosecutions. B. EVIDENCE (

a) Introduction

[ 3 ] Hiliana lived on the top floors of a townhouse with her two children, aged eight and five. She was about 25, worked as a concierge at a condominium building, and shared custody of the children with their father who lived elsewhere. She and the defendant, known as “Grant”, had been together for three to three and a half years. Grant stands about 6’2” and weighed between 160 and 180 pounds while Hiliana is 5’4” and then weighed about 120 pounds. [ 4 ] The parties agree there was an argument at Hiliana’s townhouse on the evening of February 27, 2014 .

A bottle plays a role in the dénouement of each of their accounts: as the object of a struggle that resulted in an accidental injury in Grant’s narrative and as a weapon deliberately used to assault her in Hiliana’s. Otherwise, there is little overlap between Hiliana’s and Grant’s versions of the events. (

b) The Complainant’s Account [ 5 ] Hiliana and Grant had once been engaged but, on her account, they were going through a break-up in late-February 2014 and no longer lived together. Grant still had a key to the townhouse and occasionally spent the night with Hiliana, but he primarily stayed with his sister. He was not, says Hiliana, employed and had not been for some time, a source of some resentment for her. [ 6 ] Hiliana’s narrative begins one day earlier, on February 26 th . She had gone to visit her cousin at her apartment near Jane and Finch.

She and Grant were on the verge of breaking up and she ignored his repeated phone calls and texts that evening. At about 3am on the 27th, she heard knocks on a window at her cousin’s home and Grant calling her name. Three bangs to the back door followed. From the front door, where she was standing, she saw the back door collapse. She ran out as Grant and a second man entered her cousin’s unit. [ 7 ] She discovered her car tires were slashed. She drove anyway and noticed Grant gaining on her in her rearview mirror.

He was driving what she described as a rental vehicle and the same second man was in the passenger seat. Grant’s car hit the rear of hers. Hiliana was scared but uninjured. She then drove back to her cousin’s and entered through the back door. She had returned to collect her cellphone and because she was concerned about driving any further with slashed tires. She noticed blood on the back door and on a window. [ 8 ] Grant soon appeared at the same door, along with his friend. He accused her of cheating on him. They were both “upset”. They talked for about 45 to 60 minutes while Hiliana tried to calm him down.

Grant and his friend finally left. Hiliana explained that neither she nor her cousin called the police because Grant undertook to pay for the damage to the back door. [ 9 ] Hiliana returned to her own home later that afternoon. There had been more calls and texts from Grant, but she doesn’t think she answered any of them. She got up about 10pm as her shift started an hour later. She usually drives her own car to work but called a cab at 10:30pm. It arrived about 15 minutes later. The children were with their dad and she was dressed in a winter jacket and about to leave when Grant arrived, alone and unannounced.

He was calm, had his brother-in-law’s car, and wanted to drive Hiliana to work. She said, “No”. An argument followed, chiefly, she says in direct-examination, about the events of the previous night. Grant said, “My family said you’re going to get me in trouble”. Hiliana shot back with, “Fuck your dad. Fuck your mom. Fuck your sister.” Grant grabbed a half-full rum bottle from the fireplace mantle and, in effect, dared Hiliana to repeat what she had just said. She did, and he hit her with the bottle. Hiliana’s head was ringing; she blacked out for a bit, and then fell backwards onto a couch.

Her hand was covered in blood as she put it to the left side of her head, just above her ear. The bottle was broken and Grant had only its neck in his hand. [ 10 ] Hiliana stood up to leave. Grant tried to grab her. “See what you made me do”, he said. “We need to talk. We need to wash your ear”. Hiliana was not interested in talking. “I need help”, she said. “Now”. Grant walked from the living room into the next room, the kitchen, got a knife, lifted his shirt and threatened to kill himself if Hiliana left.

She ran out of the house, into the cab and headed to the Humber River Hospital where she was treated, including stitches near her left ear. She was back home in less than two hours. With the assistance of her brother, she had already swept up the broken glass by the time the police arrived at her townhouse. [ 11 ] Photographs entered as exhibits display the presence of a couple of stitches on the upper front portion of Hiliana’s left ear and scratches and small cuts or lacerations on the left and centre areas of the back of her neck and on her right scapula and shoulder.

There are also photos of smudged blood on the landing at the top of the stairs entering the living room on the second floor of Hiliana’s townhouse and on the corner of the living room carpet closest to the top of the stairs. Other than a few photos of smudged blood around the inside handle of the front door at the bottom of the stairs, there is no visible blood in any other photos taken at the townhouse. No photos were tendered of the fireplace or the couch. Hiliana could not recall if there was blood on the couch or whether the police photographed it.

She attributed the cuts on her shoulder to the bottle shattering. There are no conspicuous indicia of contusions or bruising in the photos of Hiliana’s head or face. [ 12 ] Hiliana and Grant had occasionally argued during the course of their relationship. They often accused each other of being unfaithful. Hiliana would sometimes attack Grant during their arguments. As she put it, “I fight back”. She had once struck Grant across the face with the back of her hand and it had then “got physical”.

This was the only time, she insisted, when she “hit first”. [ 13 ] Their exchange on the evening of February 27 th was not about infidelity. It was not even a “real argument”, Hiliana says in cross- examination. She wanted him to return the keys to her townhouse. He refused to return them or get out.

Hiliana denied that there had been any physical altercation, that she came at Grant with a bottle, that there had been a struggle involving a bottle, that she had fallen on a broken bottle, or that there had been any application of force other than being once struck with the bottle. [ 14 ] Hiliana often relied on Grant to babysit her children when she worked in the evenings. That, however, was not her plan on the 27 th . She and Grant were not then on good terms and he had not been at her townhouse during the day. The children were at their dad’s home on the evening of February 27 th . (

c) The Defendant’s Account [ 15 ] Grant, the defendant, was 30 at the time of trial and employed as a forklift operator. He was also employed, he said, in late- February 2014. On his account, he believed his and Hiliana’s relationship was good until he learned otherwise on February 27 th .

Although the townhouse was leased in Hiliana’s name, he paid half the rent on the unit. Grant had no criminal record, but he had beencharged with an unrelated offence in 2013 and required to live with his sister, his surety, while on bail. He was no longer subject to theseconditions in late-February 2014 and spent most nights at the townhouse where he cared for Hiliana’s children while she worked as anovernight concierge. The children frequently, but not always, spent the weekends with their biological father. [16] Grant knew Hiliana had to be at work by 11pm.

Her job was at Kipling and Bloor, about a 15-20 minute drive from the townhouse. Hiliana called Grant about 9:45pm on February 27th. He assured her he would be home by 10:15pm to care for the childrenwhile she was working. He didn’t get to the townhouse until 10:45pm. He arrived with his sister’s husband, Alex Collymore, who sat inthe kitchen. [17] Hiliana was angry with Grant for being late. She told him her car was not working, but he denied offering to drive her to work.She repeatedly told him to, “give me your keys and get out of my house”.

Grant said he was “not giving [her] the keys” and told her to“just calm down”. Hiliana did not calm down. She continued to tell him to leave. He tried to ignore her yelling by talking to Alex. Hilianamade clear that she was “not fucking joking”; she told Grant that if he did not give her the keys and “get out of [her] fucking house” shewould “bust [his] head” with the bottle she had picked up from the fireplace mantle. Grant grabbed and shook Hiliana’s wrists as theystruggled for control of the bottle.

It “went flying out of her hand”, landed near the top of stairs that descended from the living room tothe front door, and broke. They both fell in the area of the broken bottle with Hiliana dragging Grant on top of her as she pulled on hisdreadlocks. Alex tried to disentangle Grant. “Let’s just go”, he said. “I think her head’s bust”. This is when Grant first realized thatHiliana was bleeding. [18] Grant denied ever hitting Hiliana with a bottle. He never said, “See what you made me do”. The suicidal gesture with a knife“never happened”.

And Hiliana never blacked out or fell onto the couch. [19] The children, who had been upstairs, came down during the course of the argument. Hiliana told them to stand by the front door.She took them with her in a waiting cab when she left. She refused to let Grant accompany her.

He did not know where they were going.Grant did not clean up before he left or take anything with him. [20] Grant had been at Hiliana’s cousin’s home about ten times, but he was not there on the previous evening, that of February 26th.He did not break down Hiliana’s cousin’s back door, slash the tires on Hiliana’s car, or drive into its rear end. He had, rather, spent thenight at the home of his sister and brother-in-law. [21] On one prior occasion, Hiliana had struck Grant, cutting his face near his eye. He did not report the incident to the police. C. ANALYSIS (

a) Introduction [22] Other than an argument and an injury related to a broken bottle, there are very few common elements in the two protagonists’accounts. As trials go, it is a model he-say/she-say scenario: two conflicting accounts of a single event for which there is neithertestimonial nor unambiguous physical corroboration. The assessment of the two witnesses’ credibility is key. Accordingly, I begin with abrief overview of the law that governs this exercise. (

b) The Governing Law [23] The rules governing the adjudication of he-say/she-say contests are long settled. Modestly reorganized and stripped of mostcitations, I here repeat much of the review of the general principles that I recently set out in the case of R. v. Santos-Medeiros, 2015ONCJ 396, at paras. 62-65. [24] As already noted, an evaluation of the credibility of the witnesses is crucial to the disposition of this prosecution. “Credibility”comprehends two distinct facets or dimensions of creditworthiness – honesty and reliability.

The former, “honesty”, speaks to thetruthfulness, sincerity and candour of a witness’ evidence while the latter relates more to factors such as perception, memory andcommunication. Both considerations impact on the trustworthiness – the accuracy and believability – of a witness’ account. [25] Legally, it matters not that the account of an incriminatory witness is preferred or found more probable than that advanced by anaccused. The controlling standard is that of proof beyond reasonable doubt. Wherever and however grounded, a failure to clear thisthreshold necessarily translates into acquittal.

As said by the Court of Appeal in R. v. Challice (1979), (ON CA), 45C.C.C. (2d) 546, at 557 (and subsequently adopted, and underscored, by the Supreme Court as a correct statement of the law in R. v.Morin, (SCC), [1988] 2 S.C.R 345, at para. 28): [I]t is not necessary for [the trier] to believe the defence evidence on a vital issue – but it is sufficient if it, viewed in the context of all theevidence, leaves [the trier] in a state of reasonable doubt as to the accused's guilt. [26] The Supreme Court’s judgement in R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 remains the seminal moderndecision in this area, a case, as described by the Supreme Court in R. v. J.H.S. (2008), 2008 SCC 30 , 231 C.C.C. (3d) 302, atpara. 9, that, “simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts”. R. v.

W.(D.)and its progeny make clear that so long as there remains a basis for reasonable doubt respecting the veracity of an incriminatory accountthe same rule applies even if a defendant’s evidence is entirely rejected or even if he or she elects not to testify. [27] A judge presiding, as here, at a judge-alone trial must, like every trier of fact, consider all of the evidence bearing on a witness’credibility. He or she may, with reason, accept none, some or all of the evidence of any witness and accord different weight to differentparts of the evidence that he or she does accept.

Where, as here, a defendant does testify, his evidence – like that of any witness – mustbe assessed in the context of all other evidence and not in isolation.

[ 28 ] A foundation for reasonable doubt may be found in the evidence of any witness, including a complainant. So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, sufficiently credible and persuasive to meet the requisite standard for a verdict of guilty. (

c) Applying the Law [ 29 ] The specific allegations aside, one commonality of the two testimonial accounts is the volatility of Hiliana’s and Grant’s relationship. While Grant does not expressly acknowledge any assaultive behaviour, it seems clear that there were periods of tension and verbal altercation and, on Hiliana’s account (which I accept), some occasions involving physical exchanges. As Hiliana herself volunteered, “I fight back”. There was at least one instance when she threw the first, if not the only, blow.

And her own testimony as to the events in her living room on February 27 th evidences her easy capacity for provocatively hurtful speech. From Hiliana’s perspective, she and Grant were over. Grant, of course, presents a completely contrary take: as far as he was concerned, things were going swimmingly until he was shocked to learn otherwise on the evening of the 27 th . [ 30 ] Each of their accounts, left untested by the other’s, is facially reliable.

If, as Hiliana tells it, Grant was suspiciously jealous enough to follow her to her cousin’s home, break into the house after slashing her tires and then plowing into the back of her car when she tried to escape, then he was likely capable of hitting her in the head with a rum bottle when she demanded the return of her keys, told him to leave her home and, for good measure, profanely insulted his parents and sister.

Given her own self-characterizations as feisty and at least sometimes pugnacious, Grant’s description of Hiliana coming at him with the rum bottle when he repeatedly refused to return her keys and leave is also credible as a free-standing narrative – if, admittedly, somewhat less than persuasive. [ 31 ] One must remain forever mindful that the resolution of this contest does not turn on which account is more believable or likely.

Unless, in the circumstances of this case, I can entirely dismiss Grant’s exculpatory narrative and fully accept Hiliana’s allegations of an intentional assault with a weapon, the prosecution’s burden is not met. And to complicate matters, there is no testimony to consider other than that tendered through the complainant and defendant.

Although their absence is not itself probative of anything, the evidence of potential witnesses – Hiliana’s cousin, for one, and Grant’s brother-in-law Alex, for another – is simply not part of the adjudicative tools at my disposal. [ 32 ] Nor is there any other corroborative evidence that convincingly assists in measuring the credibility of either witness. Indeed, what physical evidence exists tends, in my estimation, to buttress, if only marginally, Grant’s account or, perhaps more accurately put, detracts from the reliability of Hiliana’s.

No bottle or broken glass was preserved or photographed because, as Hiliana explains, it had been cleaned up before the police arrived. More telling is the absence of any evidence of blood on the couch where Hiliana says she fell after the blow to her head.

As well, the injuries captured in the police photos (an extensive array of small scratches, cuts and lacerations) and their location (across the back of Hiliana’s neck and stretching across to her right shoulder and scapula) is more consistent with Grant’s account of a struggle that occurred while Hiliana’s lay on her back on top of broken glass than it does her own description of a single blow to her left ear followed by her descent to the seemingly bloodless couch.

Further, there is no unambivalent confirmatory evidence, either medical or photographic, of a contusion or bruising consistent with blunt instrument trauma. While Crown counsel gamely points to a documentary hospital record that speaks of dizziness and a headache, this symptomology appears to reflect Hiliana’s own reporting rather than any professional diagnosis.

Other than a Tylenol, Hiliana was offered no treatment or medication responsive to the blow she describes in her evidence. [ 33 ] I have, admittedly, considerable reservations about the veracity of the defendant’s account of his efforts to defend himself from the complainant’s assault and the injury to Hiliana that he says accidentally followed. That said, I cannot entirely dismiss the hypothesis that his account might reasonably be true. Nor do I find Hiliana’s testimony so persuasive as to displace the reasonable doubt Grant’s testimonial account and the forensic evidence leave as to his guilt.

Finally, despite Crown counsel’s eloquent submissions I am not able to find the defendant guilty of a lesser included offence of common assault on the basis, as suggested, that he admitted shaking Hiliana’s wrists. If, as I find possible, Hiliana rather than Grant first held the bottle, then the Crown has not persuaded me that his efforts to disarm her were in all the circumstances (including threats and a history of physical aggression) other than a proportionate response to a reasonable apprehension of force being applied. Accordingly, I find the defendant not guilty. D.

CONCLUSION [ 34 ] Consistent with these reasons, the defendant is acquitted of the single charge of assault with a weapon on which he was arraigned. Released on September 25, 2015 __________________________ Justice Melvyn Green