R. v. Graham et al., 2014 ONCJ 470

Citation: R. v. Graham et al. , 2014 ONCJ 470 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON GRAHAM, RENE HAMEL, MELISSA WHITE, KRISTA HODGKINSON and LARISSA BUCKNELL Before Justice Borenstein Heard on August 25 and 26, 2014 Reasons for Judgment released on September 11, 2014 Ms. K. Crosbie............................................................................................................. for the Crown Mr. M. Morse ................................................................................................... for Gordon Graham Mr. T.

Ounapuu ....................................................................................................... for Rene Hamel Mr. N. Dwyer ........................................................................................................ for Melissa White Mr. R. Costello................................................................................................ for Krista Hodgkinson Mr. J.

Mazin ...................................................................................................... for Larissa Bucknell BORENSTEIN J.: [ 1 ] Gordon Graham, Rene Hamel, Melissa White, Krista Hodgkinson, and Larissa Bucknell are jointly charged with aggravated assault. In addition, Melissa White faces two further charges of possessing a weapon for a purpose dangerous arising out of these allegations. [ 2 ] The victim, Chris Partalis, was attacked in the hallway outside of his apartment by two people, allegedly White and Hamel. He was hit in the head with a beer bottle.

He was then stabbed in the torso and back. He testified that the attackers were White and Hamel. The other three accused are alleged parties to the aggravated assault. [ 3 ] No defence was called. There is no real dispute that the victim was attacked and stabbed. Medical records filed on consent and photographs corroborate Partalis’ evidence. The only issue in this case is identification. [ 4 ] This has been a brief and very focused trial. [ 5 ] As the trial proceeded, the Crown re-evaluated the evidence and sought and obtained leave to withdraw the charges against Mr. Graham.

The four others remain charged. [ 6 ] Given that there is no dispute that the complainant was attacked and stabbed, the evidence can be stated briefly. [ 7 ] Partalis lived in an apartment building. He has a criminal record and was using crack at the time of the incident. He knew the accused Mr. Graham who also lived in the same building. While they were not close friends, he had seen him about twenty times and they smoked crack together. [ 8 ] Partalis testified that he had seen Hamel, White, Bucknell and Hodgkinson throughout the building on numerous occasions. He said that Hamel and White were drug dealers.

He has bought drugs from them and owed money for a drug purchase to White and possibly Hamel as well. [ 9 ] Partalis and most of the accused are known by their nicknames. [ 10 ] Partalis is known as “Greek”.

[ 11 ] He knew Hamel as “Pinks”. [ 12 ] He knew Krista Hodgkinson as “Greeneyes”. [ 13 ] He knew Larissa Bucknell as “Rainbow”. [ 14 ] He did not know a name for Melissa White. [ 15 ] The night before the attack, Partalis had been at Mr. Graham’s apartment on the 6 th floor. Partalis returned alone to his own apartment on the 13 th floor sometime after 9:00 p.m. He smoked crack and lay down. A few hours later, he heard banging on his apartment door and the voices of Graham, Hamel and White outside his door. They were trying to get into his apartment.

They were pushing and pulling on his door which had two dead bolt locks. They were yelling, “Greek, open the door”. He knew he owed them money and did not answer. They eventually left. [ 16 ] Very early the next morning, Partalis again heard knocking. This time, he heard and recognized the voices as Bucknell and Hodgkinson, whom he referred to as Rainbow and Greeneyes. He had spoken to them numerous times around the building. [ 17 ] The knocking and banging continued for what seemed like hours. The women were telling him to open the door.

Partalis got fed up and came out into the hallway where he saw Bucknell and Hodgkinson. They told him to let them in but he told them to “get lost” and that they were making too much noise. Hodgkinson ran down the stairwell. Bucknell sat on a bench in the hallway. Partalis turned around to re-enter his apartment but his door had closed and the door handle was missing. He assumed that occurred the night before when Graham, Hamel and White had been banging on his door. [ 18 ] He spent the next five to ten minutes trying to open his apartment door when the elevator door opened.

From the corner of his left eye, he saw White exiting the elevator with a bottle in her hand. As he stood, he saw Hamel and Graham exit the elevator as well. White ran toward him and struck him very forcefully with the bottle on the left side of his face. The bottle shattered. Hamel then stabbed him in the back. She appeared to have a small knife in her hand but he conceded that it could have been something other than a knife. White then stabbed him three times in the stomach with a large steak knife. They were both calling him names such as “fucking goof”.

He saw the faces of White and Hamel as they attacked him. The other accused did nothing. Hamel and White fled in the elevator. The entire incident took seconds. He agreed with the characterization that he was blindsided. Graham left shortly after Hamel and White did. He testified that Graham, Hodgkinson and Bucknell did not touch him or do anything during the attack. He was not sure that Bucknell was on scene during the attack. [ 19 ] Although he was focused primarily on the hands of the attackers, he also saw their faces during the attack and when they fled.

He was certain that it was Hamel and White, both of whom he has seen many times and knew and had bought drugs from previously. [ 20 ] Partalis was stunned by the attack and was bleeding profusely. His neighbour Russell, came into the hallway to help. Russell brought a screwdriver and used it to help open Partalis’ apartment door. Partalis called 9-1-1 reporting that he had been stabbed. [ 21 ] Partalis’ 9-1-1 call was played in Court. [ 22 ] His utterances to the 9-1-1 operator were admitted initially only as evidence of Partalis’ state of mind.

However, in light of the cross-examination which suggested that, when the events were still fresh in his mind, he did not know who stabbed him, or thought that only one person stabbed him, the 9-1-1 call became admissible to rebut that allegation. [ 23 ] Partalis told the 9-1-1 operator that he had been stabbed and was bleeding everywhere. He said that a number of people came from the 6 th floor and began stabbing him in the stomach, ear, head and back. He said that two females stabbed him; one he knew as Pinks (allegedly Hamel) and the other went by the name “Vanessa or something”.

That is allegedly Melissa White. He described them as drug dealers whom he had seen many times. He provided brief descriptions of the women and their clothing. He advised that the black female had a steak knife, looked about 20 years old and looked like a boy. The white female looked around 40 years old with light brown hair. She also had a knife. The operator asked if it too was a steak knife and he replied that it was. He said he used his hands to block the slashing.

He identified the male as Gordie Graham and said he was just standing around watching. [ 24 ] Partalis testified that, when the police arrived, he was still bleeding and was drifting in and out of consciousness. He spoke to officers in the hallway, in the ambulance and at the hospital. Eventually, an officer recorded Partalis’ utterances at the hospital in his notebook. Partalis initialed each page but did not read the notebook explaining that he cannot read well. The statement was read to Partalis. [ 25 ] It was agreed by counsel that Officer Stepanenko was on scene.

She did not ask Partalis any questions but would have testified that Partalis was rambling and spitting out information. She did not ask him any questions as he was going to provide a statement later and was about to receive medical attention. [ 26 ] The Crown submits that all accused were in on a plan to extract Partalis from his apartment knowing that he would then be assaulted as revenge for not paying a drug debt. Hodgkinson and Bucknell’s role was to get Partalis out the apartment since he would not leave when Graham, Hamel and White tried the night before.

Once out, Hodgkinson alerted the others while Bucknell watched Partalis to ensure he did not leave. The fact that Hamel and White immediately assaulted Partalis when they exited the elevator is evidence from which it could be inferred that this was planned and that everyone knew about the plan. [ 27 ] The defence submitted that the identification of the attackers was made in fleeting, stressful circumstances and Mr. Partalis’s identification evidence is inconsistent. Further, Ms. Hamel submits that the evidence of Partalis’ recognizing the voices of the

persons behind his door on the first night is conclusory. The defence also points out that Partalis was trying to downplay Graham’sinvolvement in this attack thus calling into question his credibility as well as his reliability. [28] This case depends upon the eye-witness identification made by one witness. As such, particular caution is required beforerelying on such evidence to meet the Crown’s burden of proof. Courts have to be particularly vigilant where a case depends solely uponeye-witness identification. Credible witnesses can be very convinced and convincing.

It is important to look for circumstances orconfirming evidence to support a witness’ identification. [29] Eye-witness identification is considered to be among some of the least reliable yet most persuasive evidence based on thehonesty and certainty of the witnesses. That is why honesty and certainty in one’s opinion is not enough.

It is the reliability of thatevidence that needs to be assessed including the circumstances in which the identification was made, the nature of the identification,whether the witness was identifying a stranger or someone previously known to him or her, inconsistencies in description, dissimilaritiesbetween the accused and the description and so on. [30] In R. v. Burke, , 105 C.C.C. (3d) 205 at 224 (S.C.C.), Chief Justice Lamer stated: [T]he cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made bydirect visual confrontation of the accused.

By reason of the many instances in which identification has proved erroneous, the trier of factmust be cognizant of "the inherent frailties of identification evidence arising from the psychological fact of the unreliability of humanobservation and recollection": [cites omitted]. In R. v. Spatola, [cite omitted] Laskin J.A. (as he then was) made the followingobservation about identification evidence: Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibilityof powers of observation.

Studies have shown the progressive assurance that builds upon an original identification that may beerroneous... [31] With these cautions in mind, I turn to the identification evidence in this case. [32] Let me begin by expressing my views on Partalis’ credibility. Despite his criminal record or the fact that he was usingcrack cocaine at the time, I found him to be a credible witness who was telling the Court what happened to him in this case. There is noquestion that he was attacked and stabbed that morning.

The issue is who stabbed him and has the Crown proved that the variousaccused had a role in this aggravated assault. [33] I have some concern regarding Partalis’ credibility as it relates to his evidence with respect to Graham. He seemeddetermined to not implicate Graham in the attack that occurred that morning. He had told the officers that morning that this related tomoney he owed to Graham. However, he also told the 9-1-1 operator that Graham was just standing around and told other officers thathe was a lookout. He never alleged that Graham attacked him and seemed determine to emphasize that in his evidence.

While I havesome concerns or suspicions with respect to his evidence in relation to his failure to implicate Graham, I do not see that as affecting theothers. [34] Turning to the reliability of his evidence. [35] There are several contradictions or inconsistencies between Partalis’ testimony and his utterances to the police at thescene or thereafter. Partalis explained that his trial evidence was true and that these inconsistencies were attributable to the fact that hehad just been hit in the head and stabbed and was in and out of consciousness. He was hit in the head, stabbed repeatedly and bleedingprofusely.

He was rambling.

I accept his explanation that his utterances are attributable to the shock he was in having been just hit in thehead and stabbed repeatedly. [36] Some of them do cause reliability concerns however, for the most part, they relate not to identification (other than whohad the bottle) but to details concerning the chronology of the attack, such as whether he was stabbed first in the back or in the torso.There is no question, and the medical records admitted on consent for the truth of their contents confirm, that he was stabbed in bothlocations. [37] He was inconsistent as to whether the first stab wound was in the back or the front.

However, there is no issue he wasstabbed in both the back and the front. [38] He told the police that four people were in the hallway behind a garbage chute when he opened his apartment door,whereas he testified at trial that two were in the hallway and then the others arrived from the elevator. He explained that he was mistakenwhen he said they were all in the hallway and that was likely due to the state he was in following the attack. [39] He was inconsistent with respect to who broke his door handle. He initially said it was Graham. Then, he told the policethat it was the women.

Then he said he assumed it was Graham and later, that he was sure it was Graham. [40] When the police asked him what the attack was about, he said that he owed Graham $70.00. At trial, he testified that heowed Graham money but that he owed either White or White and Hamel $600 for drugs. He testified that he did not answer the doorbecause he owed them money. [41] With respect to who hit him with the bottle, Partalis told the police he was not sure whether it was Graham or Whitebecause Graham was standing back.

He testified that he did not know why he said it like that as he was sure it was White. [42] To summarize, I find Partalis credible with some reservations concerning his evidence relating to Graham. I find that theinconsistencies, with the exception of who had the bottle, do not relate to the identification of the participants but to details surroundingthe attack including the location of participants and the chronology.

[43] He identified Hamel, aka Pinks and Ms. White as the two women who stabbed him. [44] While the attack occurred quickly, this is not a case where Partalis was identifying strangers. He was identifying peoplehe had seen on multiple occasions, had spoken to and had dealt with. He knows them. He owed Ms. White money. He just did not knowher name. He was not identifying them by their voices. He saw the people who stabbed him during the stabbing, not simply as they werefleeing.

He was not identifying them by their voices but by their faces. [45] In his 9-1-1 call, he reported that a black and white female stabbed him. He identified the white female as Pinks. Hethought the black female’s name was “Vanessa something”. He identified Ms. White as that person. Given that he did not know hername, the confusion between Vanessa something and Melissa is not significant. He knew Ms. White, just not by name. [46] In its decision in R. v.

Bob (2008), 2008 BCCA 485 , 63 C.R. (6th) 108 at para 13, the British Columbia Court ofAppeal stated: There is a significant difference between cases in which a witness is asked to identify a stranger never seen by him before the offence,and cases in which a witness recognizes a person previously known to her. While caution must still be taken to ensure that the evidenceis sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight thanidentification evidence” I am satisfied that Mr.

Graham credibly and reliably identified all four remaining accused. [47] I am not satisfied however, that the Crown has established the guilt of Hodgkinson and Bucknell as parties in this case. [48] While it is certainly possible that they knew that the Partalis would be attacked when they lured him out of his apartment, there remains a speculative gap in that regard. It is very possible that Hodgkinson went down to the 6th floor and alerted the others thatPartalis was outside his apartment.

It is also possible she did that knowing he would be attacked, but it remains only a possibility. [49] Likewise, it is certainly possible that Bucknell repeatedly knocked on Partalis’ door to get him to come out knowing hewould then be attacked but that too remains only a possibility. [50] I also have a doubt about whether White was the one with the bottle in light of Partalis’ statement to the police that it waseither she or Graham. It is very probable that it was her but on that charge, I have a doubt based on that prior statement of Partalis. [51] Accordingly, I am satisfied beyond a reasonable doubt that Ms.

Hamel and Ms. White committed aggravated assault uponMr. Partalis. I am also satisfied that Ms. White was in possession of a knife for a purpose dangerous to the public peace. They will befound guilty of those charges. Ms. White will be found not guilty of possession of the bottle count and Ms. Bucknell and Ms. Hodgkinsonwill be found not guilty of all charges. Released: September 11, 2014 Signed: “Justice Borenstein”