r v. Jobe, 2012 QCCQ 9410

R. c. Gittens 2012 QCCQ 9410 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-050866-117 DATE: 10 September 2012 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Jobe Alexander GITTENS Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] The evidence leaves no doubt that in the morning of 27 January 2011 there was an altercation between neighbours in a duplex occupied by the complainants on the ground floor and the accused on the floor above. As a result the accused is charged with two counts of uttering threats to cause death or bodily harm. [1] Mr.

Michael Donnelly and his mother Brenda Donnelly, the complainants, testified that during this confrontation the accused threatened them. The accused testified and denies having made such threats. [ 2 ] There are discrepancies and conflicts in the testimony that require close adherence to the principles that govern the assessment of evidence as stated in W.(D.) [2] and related jurisprudence. These principles concern the credibility of witnesses, the reliability of evidence and the meaning of proof beyond reasonable doubt.

Prosecution evidence [ 3 ] Michael Donnelly testified that he awoke in the basement to the sounds of a commotion in or around the family apartment on the ground floor. He went upstairs and saw his mother, his brother and a family friend (Doug Henry, who is black) near the front door. He saw the accused come down the stairs. He asked Mr. Gittens why he was making such a commotion. He also testified that this was by no means the first occasion on which the occupants of the upper duplex had caused a commotion. [ 4 ] Mr.

Donnelly testified that when he was at the door on the ground level the accused directed various insults in his direction. Among other things, the accused called him and his family “white trash.” While waving a bottle of liquid, he said that he would turn their black friend white. He said, “I will kick your ass” and “I’ll beat the shit out of you” and “I will shoot you.” He said that Mr. Gittens threatened to kill him or them. [ 5 ] Mrs. Brenda Donnelly, Michael Donnelly’s mother, was already at the front door of their apartment when Michael came upstairs. She was there with another son and Doug Henry.

Unknown to Michael, she had already called police to complain of the commotion and testified that this was not the first occasion on which she had called the police for this reason. Mrs. Donnelly testified more explicitly than her son but to the same effect. She testified that the accused said several times “I’m going to kill you.” She also said that the accused threatened to turn their black friend white with acid. He also said, according to her evidence, “Our friends are going to get you.” [ 6 ] Constable Boulet of the SPVM arrived at the scene. He went upstairs where he met the accused.

The officer testified that Mr. Gittens was uncooperative and aggressive. He said also that Mr. Gittens was incomprehensible in his speech and aggressive in his gestures. He told the accused that if he did not cooperate he would have to handcuff him. He did handcuff Mr. Gittens in arresting him. Defence evidence [ 7 ] Mr. Gittens testified and described himself as the victim in this incident. He said that the complainant Michael Donnelly called him a “nigger” and claimed “We work for the mafia and we could kill you.” He says that the complainant directed a punch toward him and that he dodged it.

He testified further that he was unable to engage in any kind of physical confrontation due to recent medical difficulties. He claimed further that Constable Boulet treated him abusively, notably in not allowing him to secure a brace for his spine. Assessment of evidence

[ 8 ] Mr. Gittens admits the confrontation with the Donnelly’s but denies that he made threats as charged. Although he bears no burden to prove any matter of defence, his choice to testify in his own defence puts him in the same position as any other witness on the issue of credibility. His testimony was not successful in this regard because, from start to finish, he testified in a manner that eroded his credibility to the vanishing point. He was evasive, inconsistent, refractory, combative and angry.

The intensity of these characteristics increased as his testimony progressed and, not surprisingly, the acuteness of these characteristics was greatest in cross-examination. As his credibility approached nil, the reliability of his testimony diminished in direct proportion. His truculence as a witness matched the behaviour described by the complainants and by Constable Boulet. [ 9 ] If the prosecution evidence consisted of no more than the testimony of Michael Donnelly I would find without hesitation that the prosecution had not proved the case charged.

I say this not because his credibility was diminished but because the reliability of his evidence would not allow a conclusion of proof beyond reasonable doubt. The broad lines of his evidence were clear but vague. The testimony of Brenda Donnelly was consistent with his but specific in its particulars. There is nothing in the evidence to call her credibility into question and there is certainly no reason to believe that she held any animus toward Mr. Gittens. At several points in her testimony she underscored this by saying that she did not understand why Mr. Gittens was behaving in the manner that she observed.

The aggressiveness noted in the testimony of Constable Boulet only reinforces the reliability of the testimony provided by the complainants. [ 10 ] Thus, adhering to W.(D.) [3] and the settled jurisprudence following that decision, I ask myself whether I believe Mr. Gittens’s evidence or whether it otherwise raises a reasonable doubt. No. Although by no means impossible, a denial advanced by a witness without credibility is less likely to raise a reasonable doubt than a denial advanced by a credible witness. This truism is underscored in this case. In the witness box Mr.

Gittens conducted himself in a manner that could be described as harassing and menacing. This does not prove the charges but it certainly weakens the probative value of any denial that is otherwise loose and incoherent. Mr. Gittens’s account of the events does not materially differ from that offered by Mr. and Mrs. Donnelly except that he denies the utterance of threatening words. In particular, he acknowledges that during the altercation he was in a rage. [ 11 ] The accounts provided by the complainants, especially Mrs. Donnelly, lack nothing for credibility. I have noted that by itself the evidence of Mr.

Donnelly is too weak to sustain the prosecution case because it consisted of vague assertions and conclusory statements without offering a sufficient factual foundation for his allegations. His mother, however, was clear and detailed in this respect. She provided, and repeated, clear evidence of threats through the course of the altercation. Her recollection was precise and her statement of remembered facts was detailed and consistent. The evidence of Constable Boulet underscored that Mr. Gittens remained uncooperative and belligerent at the arrival of the police and during his arrest.

In short, nothing in the evidence presented by Mr. Gittens raises a reasonable doubt by itself or when taken into account in an assessment of the whole of the evidence on the whole of the case. [ 12 ] Thus the answer to each of the first two questions posed in W.(D.) is No. With regard to the third question, at the end of the case and on the whole of the evidence the evidence proves beyond reasonable doubt the two counts in the information. FOR THESE REASONS Mr. Gittens is guilty on the two counts charged in the information. ____________________________________ PATRICK HEALY, J.C.Q.

M e Annabelle Sheppard For the prosecution M e Walter Stirling For Mr. Gittens Date of hearing: 25 April 2012