r v. Jamal Stewart MacKenzie, 2011 QCCQ 180

R. c. Mackenzie JW0200 Robbery-assault-obstruction of a police officer-taxage in the metro. 2011 QCCQ 180 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-021818-098 DATE: January 17, 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Jamal Stewart MacKenzie Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ THE CHARGES [ 1 ] The accused is charged with 3 counts stemming from an incident that occurred on April 8, 2009 at the Lionel-Groulx Metro station. More specifically, he is accused of robbery, assault and of obstructing a peace officer in the execution of his duties.

THE PROSECUTION'S CASE [ 2 ] K.S., the victim of the assault and robbery did not testify at trial but a brief statement that he gave to the police right after the incident was admitted into evidence. According to this statement, K.S. was in the Metro station on April 8 2009 when he was approached by an unknown person who asked him for "weed". That person then went into K.S.' pocket and proceeded to throw him to the ground and kick him in the face. K.S. sustained injuries to his face and a cut in his mouth.

K.S. did not identify his assailant but described him as a black male wearing a grey sweatshirt and jeans. [ 3 ] Constable Parisien, a police officer patrolling the Metro station undercover, witnessed the entire episode. Constable Parisien did not testify at trial but her testimony given at the preliminary inquiry was read into evidence pursuant to

section 715 of the Criminal Code . [ 4 ] A gathering of approximately 15 youngsters in the station initially caught Constable Parisien's attention. She then noticed an altercation between the victim K.S. and the accused. At first she thought the roughhousing could be a game, until she saw the accused try to put his hand in K.S.' right pocket, push him to the ground and kick him in the face. The accused then fled and ran onto a Metro car with another individual. Constable Parisien was able to block the Metro doors and had the Metro operator stop the train.

She called for backup over her walkie-talkie and pointed out the two individuals in order to have her partners arrest them. [ 5 ] Constable Parisien describes the accused as a black male, approximately 1 m 62, weighing 60 kilos, with his hair in braids to his shoulders. He was wearing a white sweatshirt with black lettering on it. She is able to recognize him without hesitation in the courtroom. Constable Parisien had an unobstructed view of the altercation from 2 or 3 meters away and she describes the events just as

the victim did. She never lost sight of the accused from the time of the attack until his arrest and she is 100% sure that the accused is the person she saw committing the assault described above. She later spoke to the victim and noted an injury to his lower lip and that he was bleeding from inside his mouth. [ 6 ] Constable Kalaitzakis testified for the Prosecution. He is the victim of obstruction on count 2. He was also working in plain clothes as part of the police operation to target extorsion ("taxage") in the Metro.

He received information from Constable Parisien about the robbery that she had just witnessed. With the assistance of Constable Pinault, he proceeded to arrest the 2 individuals pointed out by Constable Parisien, one of whom was the accused, who he describes as wearing a white hooded sweatshirt with black and grey graffiti lettering. [ 7 ] The accused was extremely uncooperative. First he refused to get up when asked to do so and had to be physically escorted out of the Metro car. At the doors of the Metro, the accused put both his arms across the doorframe to avoid exiting the car.

The accused grabbed Constable Kalaitzakis by the collar and continued to resist his arrest. Constable Kalaitzakis required the assistance of 3 or 4 officers to restrain the accused. The resistance continued once on the platform of the Metro where the accused grabbed onto a fence separating a construction area in the Metro station, refusing to let go. He was screaming and kicking the air in an attempt to fend off the officers. Several maneuvers were required to subdue the accused, including applying pressure points in order to finally handcuff him.

During this entire episode, the accused repeated that he had done nothing wrong and specifically told Constable Kalaitzakis: "I just grabbed him by the shirt and threw him around a little bit, that's not assault". [ 8 ] Once arrested, the accused gave a false name and date of birth to the officers. It wasn’t until he was questioned at the police station that his true identity was revealed. In fact, he had initially given the name and birth date of his younger brother Jesse Jadon, who is a minor. [ 9 ] At the police station the accused signed a written statement that was admitted into evidence.

In it he states that some of his "acquaintances" were fighting with another "citizen" although no punches were thrown. The accused stepped in and grabbed the "citizen" by the jacket and swung him off, causing him to hit the floor. At that point he heard people calling "police" so he decided to continue on with his plan, that is, to take the Metro. THE DEFENCE CASE [ 10 ] The accused testified in defence . His version of the events is somewhat different than what he said in is police statement. He states that he was going to the Metro with a group of friends.

One of his friends, Rahin, wanted to buy weed and decided to rob the person selling it (K.S). Rahin tried to grab the weed from the guy's pocket and when K.S. tried to hit Rahin, the accused grabbed him by the jacket and threw him to the ground. When they heard someone shout "police", the accused went onto the Metro. He states that he "didn't do anything" and simply wanted to get away. [ 11 ] He does not deny resisting his arrest and giving a false name to the police.

He claims to have done so because he was not inclined to tell the police anything about who was responsible for the incident. [ 12 ] He tendered his sweatshirt in evidence (Exhibit D-1), which is the one he wore that day. It matches the description given by the officers, as it is white with black shapes on it. It is not grey, as the victim stated. [ 13 ] Although the accused claims in his statement to have gotten on the Metro to continue with his plan to return home, in cross- examination he agrees that he was in the wrong direction to head home and in fact he was fleeing the police.

In cross-examination he also admits that it was not just Rahin who wanted weed, but all of them. [ 14 ] The accused was also confronted in cross-examination with another version of events he gave at his bail hearing, at which time he told the Court that someone struck the victim and when it looked like the victim was about to strike the accused in retaliation, the accused grabbed the victim's jacket. On the stand at trial, the accused denies this earlier version of events. [ 15 ] The accused's testimony discloses several versions of events with differing elements.

He also alluded to the possibility that if given more time, he would be able to find the witnesses who were with him that day to confirm his story. It is clear that I must decide the case upon the evidence before me and not on speculation as to what some other as yet unidentified witnesses might say. Although I told the accused that a motion could be made to re-open the defence if further admissible evidence was presented before the judgment was rendered, no such motion was presented. ANALYSIS [ 16 ] The accused does not deny his guilt on a charge of simple assault for having grabbed the victim.

Nor does he contest the count of obstructing a peace officer in the execution of his duties. He does contest the prosecution evidence with respect to assault causing bodily harm, and robbery. [ 17 ] The accused has no burden to meet and it is for the Prosecution to prove every essential element on each count beyond reasonable doubt. If I am left with a reasonable doubt, whether stemming from the evidence of the accused or the evidence as a whole, I must acquit. [ 18 ] The accused has several prior convictions, which affect his credibility. They are for theft, mischief and breach of Court- imposed conditions.

On the whole, the testimony of the accused is not credible. The many contradictions noted above leave me with no doubt whatsoever stemming from his evidence. On the whole I am convinced beyond reasonable doubt of his guilt on all 3 counts of the indictment. [ 19 ] The evidence of Constable Parisien is clear and unwavering. She was stationed at the Lionel-Groulx station specifically to

monitor and control criminal activity in the Metro. She saw the entire episode as it unfolded and never lost sight of the accused until herpartners took charge of him. There is no doubt whatsoever that the accused is the person she saw rob and assault K.S. Her description ofthe accused's clothing matches that of the accused himself, as confirmed by Exhibit D-1. The fact that K.S. described the accused aswearing a grey sweatshirt has no effect on this conclusion. It is perfectly understandable that a victim of assault under thesecircumstances would be less than 100% accurate in describing his assailant.

Indeed, had the identification of the accused relied solely onthe testimony of K.S., I would need to take serious precautions to ensure that his identification was not flawed. But the absence of anypositive identification of the accused by K.S. is immaterial, given the strength of the testimony of Constable Parisien. [20] In addition, the evidence of identification is bolstered by the fact that the accused himself does not deny being involved in thescuffle with K.S. and actually admits striking him.

Essentially, the accused denies the extent of his actions as described by ConstableParisien. [21] I also take note of the post-offence conduct of the accused, specifically the considerable lengths he goes to in resisting arrestand then falsely identifying himself to the authorities. His explanation for this -that he didn’t want to give any information about anyoneto the police- is simply fanciful. Submitting to an arrest and properly identifying oneself does not involve the incrimination of anyoneelse.

Further, although the accused states that on principle he would not incriminate anyone else, on the stand at trial he stated that hehoped to find the witnesses in order to have them tell who the true culprit was. CONCLUSION [22] After a careful consideration of all of the evidence I find that the Prosecution has proved the essential elements on all 3counts beyond reasonable doubt.

In application of the Kienapple principle, ( (SCC), [1975] 1 S.C.R. 729) I will stay thecharge of assault causing bodily harm as it arises out of the same facts and is part and parcel of the robbery of K.S. ____________________________________ LORI RENÉE WEITZMAN, J.C.Q.Me Dennis GaliatsatosAttorney for the Directeur des poursuites criminelles et pénales Me Robert BellefeuilleDefence attorney Date of hearing: December 6, 2010.