r v. JONATHAN, 2018 QCCQ 1052

R. c. White 2018 QCCQ 1052 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and Penal Division" N° : 500-01-141756-160 DATE : February 23, 2018 BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. THE QUEEN Prosecutor v. JONATHAN WHITE Accused JUDGMENT INTRODUCTION [ 1 ] Jonathan White (“White”) is charged with one count of manslaughter (

Section 234 Criminal Code ) on January 12, 2016. The alleged victim, Mr. Éloi Dessurault (“Dessurault”), suffered a head trauma on January 12, 2016, and died four months later, on May 6, 2016. [ 2 ] The theory of the Crown is that Dessurault was assaulted with one punch by White. The incident took place in a private cabin in an establishment known as Video Erotica, which is commonly referred to as a “peep show”.

According to the prostitute servicing Dessurault immediately prior to the assault, she had an argument with him when they were in the cabin together and the shouting prompted White to open the door and punch Dessurault who fell on the floor and hit his head. According to the Crown, this fall seriously impaired Dessurault’s physical and mental state. Dessurault spent the next hour or so wandering the streets of downtown Montreal until he was finally rescued by a passerby who brought him to the hospital.

Dessurault died four months later from complications caused by a large hematoma in the brain. [ 3 ] White denies ever hitting Dessurault, although he admits that he was present when Dessurault fell to the ground in the cabin of the peep show. [ 4 ] Three issues must be decided: 1. Does the evidence establish beyond reasonable doubt that White punched Dessurault? 2. If so, does the evidence establish beyond reasonable doubt that White was not acting in self-defense? 3. If so, does the evidence establish beyond reasonable doubt that the blow caused Dessurault’s death?

THE FACTS [ 5 ] On January 12, 2016 at around 9 pm, Ms. Catherine Rocheleau was walking downtown on St. Catherine Street near Clark Street when she noticed an older man who was having difficulty holding himself up. As she approached, she saw that he was holding onto a lamp post, and that he had blood on his hands and his nose. His general appearance, combined with the fact that he wasn’t wearing gloves, led her to believe that he was a homeless person, possibly drunk, and certainly in need of assistance. She approached and offered him her gloves.

He told her his name was “Éloi” and that he was from Dorion, but he couldn’t remember the name of his street. He mentioned something about someone stealing his car and he complained that his head hurt. He could not stand up straight, he was confused, he had difficulty answering questions, and he was repeating himself. Rocheleau, with two other passersby, decided that the quickest way to get the man to the hospital was to hail a taxi, which they did. Five minutes later, the victim, accompanied by Rocheleau, was admitted to the emergency at St. Luc Hospital. While in the waiting area, he began vomiting.

According to the nurse who treated him, Catherine Sabourin, this is a sign of a possible brain injury requiring immediate attention. [ 6 ] Nurse Sabourin noticed blood on the back and top of Dessurault’s head as well as on his nose. She noted that the patient was confused and his condition was deteriorating.

He was sent for a CT scan [1] which confirmed the presence of a large intra-cerebral hematoma at the central and posterior right temporal lobe measuring 6.9 cm x 4.1 cm; a subdural hematoma measuring 0.4 cm at the right frontal lobe; some scattered subarachnoid hemorrhage, more on the left than the right side; and, bilateral fractures of the facial bones. The patient was intubated and transferred to the Montreal General Hospital that same evening to undergo neurosurgery.

[ 7 ] As explained by the forensic pathologist, Dr. Dazé, surgery was required to drain the intracranial bleeding. Without the surgery, the continued bleeding would cause further neurological deterioration and eventually death, as the hematoma grows and puts pressure on the brain, compromising vital functions. [ 8 ] Dessurault was left with serious sequelae including paralysis of his left side and respiratory problems. Because he could not swallow properly, he required feeding through a tube. Nevertheless, following the surgery, he showed some neurological progress, and recovered some cognitive functions.

In fact, his daughter, Lyne Dessurault, describes a particularly “good” period of 2 weeks in the hospital in February, when Dessurault was able to speak to her, albeit with some difficulty as a result of a tracheotomy. Ultimately, Dessurault’s condition deteriorated. He was in the hospital a total of 4 months until his death on May 6, 2016. [ 9 ] Dr. Dazé performed the autopsy and provided a report. [2] He explains that, prior to January 12 2016, Dessurault was an active and reasonably healthy 84-year-old. In the opinion of Dr.

Dazé, the head trauma Dessurault suffered on January 12, 2016 was serious and the neurosurgery saved his life. However, he was left with important neurological sequelae which, among other things, affected his respiratory system. He died on May 6, 2016 of aspiration pneumonia. According to Dr. Dazé, whose opinion is not contested on this point, there is a direct causal link between the brain trauma Dessurault suffered on January 12, 2016, and his death. What is contested, is the cause of the brain trauma. [ 10 ] Dessurault was brought to St.

Luc Hospital by Rochelau who had very little information to provide to the doctors. He had no ID on him and there were no clues as to the possible cause of his injuries. While in the hospital, a call came in on Dessurault’s cell phone from Mélanie Léonard (“Léonard”), his employee who worked the evening shift at Dessurault’s motel. She testified that she was looking for Dessurault, who was supposed to replace her at 10 pm, to take over the night shift. She last saw him in the afternoon of January 12, 2016 when he left the motel expecting to be back just before 10 pm.

When he failed to return, which was very unusual, she tried to reach him. The police spoke with Léonard and were thus able to identify Dessurault and retrieve information about him through the SAAQ, obtaining a photo of him as well as his license plate number for a white Honda Civic. [ 11 ] The investigator, Sgt. Detective Rioux, tried to piece together Dessurault’s whereabouts in the last hours before he was found by Rocheleau. She took the photo of Dessurault and began a search using the video surveillance cameras in the area near Clark and Ste. Catherine Streets where Rocheleau found him.

CCTV cameras outside the police headquarters on St. Catherine Street, and outside the Quartier des Spectacles, proved helpful. These video cameras captured footage of Dessurault walking in the area and led the investigator to ask for assistance from nearby businesses in order to view the video footage from their cameras in the hopes of finding other images of Dessurault. [ 12 ] Sgt. Detective Rioux was able to uncover considerable footage and piece together a reverse chronology of Dessurault’s whereabouts on the evening of January 12, 2016 before Rocheleau found him.

The combined video evidence establishes that Dessurault parked his car in the parking lot behind Video Erotica around 6:52 pm, and entered the peep show through the front door on St. Catherine Street east, at approximately 7 pm. [3] The police were able to identify several of the individuals whose images are captured by the video cameras inside Video Erotica that evening, four of whom testified before this Court, namely: Tonya Kirton (“Kirton”), the prostitute working that evening who provided her services to Dessurault; Mr.

Kaboush (“Kaboush”), the janitor who worked at Video Erotica; David Sweet (“Sweet”), who regularly sold crack to patrons at Video Erotica; and White, the accused, who is seen entering Video Erotica with Sweet. [ 13 ] It is not contested that Dessurault fell on the floor while in the cabin of Video Erotica. Kirton, Sweet and White each give different versions of how he fell. Their evidence is summarized and assessed below, in determining the first question at issue, that is, whether White punched Dessurault. ANALYSIS 1. Does the evidence establish beyond reasonable doubt that White punched Dessurault?

Kirton [ 14 ] Tonya Kirton is a sex worker who goes by the name “Kim”. She knows Video Erotica as a place where people go to watch porn movies, to have sex and to do drugs. In the early evening of January 12, 2016 she met Dessurault outside Video Erotica. She had never met him before. They agreed on a “complete” which, she explains, consists of fellatio and intercourse for $100. The video surveillance confirms that Kirton and Dessurault were in Video Erotica together as of 7 pm. She is seen explaining to him that he needs to buy a card at the reception before going in.

There are no video cameras inside the 12 private cabins. According to Sgt. Detective Rioux, the cabins measure approximately 10’ x 4’. They contain a 2-person bench, controls for the videos, and a large TV screen. [4] Rioux also prepared a diagram of the inside of Video Erotica, indicating the area where the private cabins are found. [5] The entire area is dimly lit and the only light inside the cabins is from the TV screens. [ 15 ] According to Kirton, Dessurault paid her with five $20 bills. He had difficulty getting an erection.

She attempted to help him get an erection, including performing fellatio, but to no avail. She assumed he must be drunk. She suggested he pay an extra $40 dollars so that he could “lick and sniff” her. Still, he could not get an erection. He blamed her for not doing what she was supposed to do. She insisted that it was his problem and not hers. She finally told him there was no point in continuing and that he would have to come back another time when he wasn’t drunk. Dessurault got angry and asked for his money back. She flatly refused and explained to him that it didn’t work that way.

The argument continued, Dessurault called her a liar and a thief, and as she was getting ready to leave, he grabbed her. She shouted “Lâche-moi!” and called out for help. [ 16 ] At that point, the sliding door of the cabin opened and Kirton saw White and Sweet. She did not know White well, but she knew he went by the nickname “Chocolate”. She also knows his brother, Kevin. She knows Sweet well. He goes by the nickname “Folks”. He often sold Kirton crack cocaine.

[ 17 ] Within 25 seconds of the door opening, White punched Dessurault in the face. The victim immediately fell backwards and Kirton heard his head hit the floor. She said to White “oh shit, why d’you hit him” and White answered “I thought he was raping you or something”. Sweet was right behind White but did nothing. Dessurault was on the ground at this point, his eyes open. White helped Kirton pick him up and put him on the bench. Dessurault said nothing to White but continued to ask Kirton for his money back, claiming that she had robbed him.

Kirton noticed that Dessurault had a gash in the middle of the back of his head. She was relieved to see that he was okay as he started using the joystick for the videos. Kirton gave Dessurault a Kleenex for his bleeding nose and told him he shouldn’t have grabbed her. [ 18 ] The entire incident happened very quickly and Kirton is not sure of some of the details, for example the exact words spoken. In fact, the Court is skeptical about the accuracy of the words allegedly spoken by her and White immediately following the assault.

But Kirton is absolutely sure that White punched the victim and she maintained this conviction throughout cross-examination. [ 19 ] Kirton was questioned about the fact that there are 135 phone calls between her and Sweet between January and April 2016. She testified that Sweet was concerned about the police investigation and wanted her to say that she pushed Dessurault, which she refused to do, since it was completely false, “shit talk”, according to her. [ 20 ] The testimony of Kirton must be evaluated and weighed carefully.

Based on her criminal record, the Court questions how seriously she takes her duty to tell the truth. In fact, Kirton has a lengthy criminal record for various offenses. Her most serious offense involved an assault with a weapon (a box cutter) that she describes as self-defense. More importantly, she has numerous convictions for breaches of court orders, breaches of probation and failures to appear in court. She readily admits that she goes by several aliases that she uses to try to avoid arrest when stopped by the police.

She has been a sex worker on and off since she was 15 years old (she is now 43 years old) and has also been a drug addict since then. She regularly smokes pot, drinks alcohol and smokes crack cocaine. [ 21 ] Not only must Kirton’s testimony be scrutinized in light of these objective reasons to question her credibility, but she also has a vested interest in blaming someone for the assault on Dessurault since she was initially arrested for his murder in April 2016. [ 22 ] The Court notes that there are weaknesses in Kirton’s testimony.

To begin with, the events leading to the argument between her and Dessurault do not ring true. Kirton insists that Dessurault could not get an erection despite her best efforts and that their argument was thus about reimbursement. However, she states that she put a condom on his penis, first for fellatio and then again for intercourse. Indeed, when Dessurault was brought to the hospital, he still had a condom on his penis. It is difficult to understand how she might have done this without his having an erection.

Also, as an explanation for Dessurault not having an erection, Kirton states that she suspected he was drunk, and that he smelled of alcohol. This is not believable, as the blood analysis found no traces of alcohol in Dessurault’s system. Further, Dessurault had no money on him when he was brought to the hospital. According to Sweet’s testimony he heard a man in the cabin call out “you robbed me”. All of these elements indicate that Kirton stole money from Dessurault as opposed to her refusing to reimburse him, as she claims.

Of course, the underlying reason for their initial argument has little bearing on what happened next, but it suggests that Kirton is not telling the whole truth. [ 23 ] Nevertheless, it is possible to believe some, and not all of a witness’ testimony. Her version of one swift punch by White is entirely believable. So too is the way she relates her dismay and frustration when Sweet suggested she take responsibility for something she did not do. The fact that she gave Dessurault a Kleenex to wipe his bleeding nose is a detail that lends credence to her version.

As will be discussed below, Sweet also noticed Dessurault’s bleeding nose and observed Kirton giving him a tissue. A bloody napkin was later found in Dessurault’s jacket pocket. The details she gives of Dessurault falling backwards from the punch and hearing the sound of his head hitting the floor are also consistent with the evidence as a whole. As will be noted below, White also told the police that Dessurault was flat on his back, and that he hit his head. The radiology report from St.

Luc Hospital also refers to a bump on the back of his head. [6] Sweet [ 24 ] Sweet has been selling drugs since he was 15 years old. (He is presently 44 years old). He has known Tonya Kirton or “Kim” for the past 10 years and regularly sold her crack cocaine. In fact, she still owes him $300. He would regularly hang out at Video Erotica. He used to hide his drugs in cabin number 2 which was out of service. He was there on January 12 2016 to sell drugs. He recognizes himself and White on the video footage that evening.

He also recognizes Kirton but had never seen Dessurault before. [ 25 ] There is an approximate 20-year difference in age between him and White. Sweet knows White’s older brothers who are his age. He has known White, whose nickname is “Chocolate”, for about 6 years. Sweet’s nickname for White is “my son.” They saw each other every day. [ 26 ] On January 12, 2016 he was in the “projects” with White, a short walk away from Video Erotica. When they arrived at Video Erotica, Sweet went to hide his drugs in cabin number 2.

He heard someone shout in French “you robbed me” and then a call for help from inside one of the cabins. White opened the door and the next thing Sweet saw, a man was on the floor. Sweet was next to White but did not see him hit anyone. The man lay flat on his back, knocked out, for 30 seconds with his eyes closed. Once his eyes opened, White lifted the man up from the floor.

Sweet noticed that the man then put $2 into the machine to watch videos. [ 27 ] Sweet states that he did not see any injuries on the man but he did see Kirton give him a tissue for his bleeding nose. [ 28 ] Sweet says that the many calls between himself and Kirton are probably calls for drugs. He also spoke to Kirton when he heard that the police were looking for him in connection with this incident at Video Erotica.

Sweet insisted that Kirton should go to the police and tell them what happened because he didn’t have anything to do with it and he felt that it was up to her to explain what had occurred. [ 29 ] The testimony of Sweet is not very helpful. As a witness, he does not seem concerned with the accuracy of his answers and makes little distinction between what he usually did and what he might have done specifically on the night of January 12 2016. He has a lengthy criminal record beginning in 1993 with consistent convictions through 2015. In fact, he was just recently released from jail on January 6, 2018.

His prior convictions involve assault, obstruction, possession for the purpose of trafficking, drug trafficking, robbery,

and breaches. Although he was able to testify, he enunciates with great difficulty and sometimes struggles to find the right words, due to the lasting consequences of having been stabbed in his throat in 2015. Regarding this stabbing, he stated that it was about money owed, but he also said that he was “stabbed in the throat for nothing”. [ 30 ] Despite the fact that he refers to White as “my son”, when the police showed him a photo lineup, Sweet wasn’t sure he could recognize White. In Court, Sweet testified that the photo of White made him look fatter, so he couldn’t be sure it was him.

This part of his testimony is a blatant lie. The photo of White in the lineup unmistakably represents him, and it is impossible that Sweet would not have recognized the person that he had known for at least 6 years, who he spent every day with, and who he calls “my son”. [ 31 ] Further, Sweet gave a sworn statement to the police in April 2016 about the incident of January 12 and they asked him to identify himself and the person he was with, in the video footage. Throughout his statement, he describes what “a black kid” did, without ever mentioning the name Jonathan White or “Chocolate”.

Cross-examined on this, he answers: “I do not believe his name is Jonathan White”: an answer that illustrates his tendency to say whatever he feels will best suit his purposes at any given time. [ 32 ] Clearly Sweet tried to provide enough details to satisfy the police and the Court without incriminating White. Most of all, he wants to ensure that he is not held responsible for this incident.

In fact, he himself sought out the police in April 2016 when he heard about their investigation, because, as he states, he wanted to make sure he would not be falsely accused. [ 33 ] He denies ever discussing what happened that evening with White. This is highly unlikely, particularly once Sweet heard that the police were looking for him in connection with an investigation into the murder of Dessurault. White [ 34 ] In his testimony, White chose to provide some background information about himself. He is 25 years old. He is the youngest of 3 boys, with 2 brothers who are considerably older than he is.

Kevin, the eldest, is a drug dealer and Duane the second oldest “robs people”. They are both presently in jail. White quit school in grade 9. He had always relied on his mother to provide for him which is why he never held a steady job. His mother was shot and killed in 2014. During that same incident White himself was shot in the foot trying to stop the assailant. That injury put an end to his participating in kickboxing. Since 2014, White spends his days selling crack cocaine, making approximately $2000 a day. He himself does not smoke crack but he smokes between 14 to 28 g of marijuana every day.

He also has a criminal record. As a juvenile, his first offense, robbery, was committed when he was 14 years old. This was followed by 7 other offenses for breaches, assault, and possession of a weapon. As an adult, he had several convictions in 2015 and 2016 for breaches of a court undertaking, breaches of probation, assault, and drug offenses. [ 35 ] White testified that he used to go to Video Erotica at least six times a week to sell drugs. On January 12, 2016 he went there with Sweet to sell drugs.

He remembers that he spent that day with Sweet, smoking “weed”, watching movies at the “base” where he waits for incoming calls for drugs. [ 36 ] Once inside Video Erotica, he and Sweet took a walk around. Near one of the cabins White “heard people talking” and opened the cabin door. With further prompting from his counsel he adds that he heard “words” but he can’t say what. Further prompting leads him to add that in fact the “words he heard” sounded like something was wrong, because “she was yelling”, “loudly”.

In Cross examination, he says that “she may have said help”. [ 37 ] As he opened the cabin door, he saw an old man with his pants down. White immediately tuned away, because he did not want to see the man’s exposed private parts. In that split second, when he turned his head to look away, he heard the man fall. White picked him up instantly, looked in his eyes and asked if he was ok. The man nodded yes.

He did not have any visible injuries. [ 38 ] White then added in his testimony that he forgot to mention that when he first opened the door, he saw the man’s hand out towards Kirton as if he was asking for something she had taken something from him. This added detail is not clarified any further. [ 39 ] White “can’t say” whether Dessurault hit his head when he fell.

Yet when questioned by the police he did say “oui, sa tête a cogné” and that Dessurault was flat on his back on the floor. [ 40 ] White flatly denies hitting Dessurault: he states that he would not hit anyone to help a prostitute and that, in addition, he had a hand injury which prevented him from making a fist. [ 41 ] White helped pick Dessurault up and sat him on the bench. Once he checked that all was ok, he and Sweet left. He did not ask Kirton any questions.

The whole thing happened in “a spilt second” and “less than two minutes”. [ 42 ] He says that he did not discuss any of the details of this incident with Sweet at any time. [ 43 ] The testimony of White is not believable. His description of how the events occurred do not make sense. He begins his testimony by stating that he opened the cabin door because he heard people talking. Certainly, it would not be appropriate to open one of these cabin doors unless there was a real reason to do so. It is only as he is prompted by questions from his lawyer that he does finally say that he heard “Kim” shout.

If that was the reason he opened the door, it’s hard to understand why the sight of a man with his pants down was a reason enough to change his mind about offering help. Just as odd is his claim that suddenly Dessurault fell down. White’s testimony never really explains what his intention was when he opened the door. The story is convoluted. [ 44 ] White also denies seeing Dessurault with a bleeding nose, yet but both Kirton and Sweet mention this detail which is perfectly consistent with Dessurault having been punched in the face.

Of course, Kirton and Sweet themselves are not the most credible witnesses, but their testimony on this point is consistent and rings true. [ 45 ] The entire background story of an injury to White’s hand which would have rendered him unable to throw a punch is equally fanciful. Questioned by his lawyer, he says the injury happened a “long time” before January 12, 2016. But then adds that it was still swollen, he could “see flesh”, and could not make a fist. His limited mobility of his right hand is certainly not at all evident with a close

examination of the video footage in the peep show (he can be seen putting his hand in his back pocket, fixing his coat, undoing his jacket, etc.). In cross examination, he says it happened “about 2” weeks before. Furthermore, he testifies that he hurt his hand in a fight that split the skin open. Yet when questioned by the police he told a story about hurting his hand because he was drunk and fell on the sidewalk.

The Court does not believe any part of the testimony regarding the injury to his hand that could have prevented him from hitting Dessurault. [ 46 ] It is also not believable that White would not have discussed any of this incident at any time with Sweet. At the very least, when they heard that the police were looking for them and when there was talk of murder charges, it stands to reason that they would have discussed it with each other.

This denial seems invented to avoid having to explain what they discussed. [ 47 ] It is equally not believable that White would have such a clear recollection of the details he recounts - the fact that Dessurault had his hand out as if asking for something form Kirton, the way that he looked Dessurault in the eyes, the words he spoke to Dessurault, “are you ok,” and the fact that Dessurault nodded, the precise manner in which he picked him up from the floor- if in fact nothing unusual happened. According to White, a man fell, White picked him up, there were no injuries, and he simply left Video Erotica.

What could account for such a clear memory of the minute details of an otherwise insignificant event, so long after the fact? [ 48 ] Added to this list of the reasons the Court does not believe White’s testimony are the lies he told the police when they arrested him. When first confronted with his involvement with this incident, he denied any knowledge, and claimed not to remember any of it. He only admitted that he was at the scene once the police showed him photos taken from the video footage. At the first photo shown, he still claims not to recognize himself.

Once he does admit to his presence there, he denies ever touching Dessurault. [ 49 ] White admits that he lied to the police when he denied that “Chocolate” was his nickname. He says that as a drug dealer, he was not willing to tell them what his nickname was, even if he has been known by that name since he was 12 years old. White adds that it was the only thing he lied about when questioned by the police. Cross-examination will reveal that this is not the case.

He will also admit that he lied to the police about the cause of his hand injury, about not recognizing himself in the videos, about not having been involved in the incident. [ 50 ] Overall, the Court does not believe the testimony of White, nor does it does raise a reasonable doubt that he hit Dessurault. Despite the weaknesses noted of the Crown witnesses, the evidence as a whole establishes beyond reasonable doubt that White threw one punch to Dessurault’s face, which caused him to fall and hit his head on the floor. 2.

Does the evidence establish beyond reasonable doubt that the accused was not acting in self-defense? [ 51 ] It may be difficult, although certainly not impossible, for an accused to raise the defense of self-defense without testifying to this effect. The difficulty lies in the very wording of

section 34 of the Criminal Code , which provides: 34(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. (Emphasis added) [ 52 ] The basis for this defense is an honest and reasonable belief that the force applied was necessary to defend oneself or another person, and that it was applied for that purpose. White denies hitting Dessurault, which, as noted above, the Court does not believe (nor does it raise a reasonable doubt). The defense suggests that the circumstances as a whole, and the evidence the Court does accept, may still support a claim of self-defense.

Indeed, Kirton’s testimony is to the effect that the assault was motivated by White’s belief that she was being attacked. This is also consistent with the testimony of Sweet who says he heard calls for help coming from inside the cabin. [ 53 ] The reasonable belief that the force applied was necessary must be subjectively and honestly held by the person invoking self- defense. White himself claims that he would not (and did not) hit someone to come in aid of a prostitute.

He is unequivocal that he had no interest in helping Kirton, saying “she is not my friend” and “I’m not gonna go hit a man for a prostitute” [7] . He later repeats “I’m not gonna help a prostitute.” [8] In the absence of any evidence of White’s subjective and honest belief that he acted in self-dense, there no air of reality to this defense. [ 54 ] It is hard to understand what motivated White to punch Dessurault as he did. But his motive is of no consequence on the issues to be decided here. 3.

Does the circumstantial evidence establish beyond reasonable doubt that the blow caused Dessurault’s death? [ 55 ] The evidence has established that Dessurault was punched in the face and fell backwards, hitting his head on the floor. It is not contested that the brain injuries sustained on January 12 2016 caused Dessurault’s death, four months later. The causal connection at issue here is the link between the initial punch and the brain injuries. [ 56 ] According to Dr. Dazé, the brain injuries that were seen in the CT scan would likely alter a person’s higher cognitive functions.

Symptoms normally observed would be confusion, incoherent speech, disorientation in time and space, loss of sensitivity to touch, reduced motor functions, and problems with balance. This can eventually lead to a loss of consciousness as the hemorrhage puts additional pressure on the brain. The symptoms may appear progressively, and there may not be any noticeable symptoms immediately, if the bleeding is microscopic. But as the bleeding increases, it will inevitably cause the symptoms described. According to the

pathologist, given the dimensions of the large hematoma (6.9 cm x 4.1 cm) here, one would expect to notice symptoms within minutes of the trauma. Vomiting can indicate that the hematoma had reached a significant size. [ 57 ] Dr. Dazé agreed with the defense suggestion that it is reasonable to suggest that the large hematoma was caused around 9 pm, which would have caused the vomiting at the hospital some 10 minutes later. [ 58 ] Although Dr. Dazé cannot determine what caused this hematoma, he does provide an indication as to how recent the trauma was.

It should be noted that his report erroneously refers to an assault at around 9 pm. In fact the assault occurred at least an hour before that. He is also unable to determine where the blunt trauma to the head occurred. As he explains, the region of the hematoma is not necessarily indicative of the external area affected. For example, a blunt trauma to the right side of the head could cause a hematoma on the left side of the brain, as the brain is displaced inside the cranium. [ 59 ] Dr.

Dazé also testified that although it is not impossible that Dessurault’s bilateral facial fractures were caused by the impact with a fist, they are more compatible with a fall on his face. [ 60 ] Dr. Dazé agrees that the medical evidence is compatible with two falls, one at 8:35 pm, and one close to 9 pm, with the later fall causing the significant brain injuries noted. It is likely that one trauma, or one fall, caused all of the intracranial injuries.

This same fall could have also caused the facial fractures. [ 61 ] According to the Crown, the video footage of Dessurault after he was punched by White, clearly indicates that the victim was seriously affected by the punch and the impact on his head from the fall. They ask the Court to take note of the evidence indicating that Dessurault experienced confusion and difficulty with motor skills immediately after the punch while he was still in Video Erotica as well as during the hour or so where he is seen walking around aimlessly. These are symptoms that Dr. Dazé associates with a brain injury.

The Crown specifically refer to the video footage from Video Erotica at around 8:10 pm. They ask the Court to take note of Dessurault’s unsteady gait, the way he seems lost, the fact that he cannot open the back door, the fact that he does not go to the parking lot to his car, but walks instead in the opposite direction with no apparent destination and the fact that he wanders aimlessly in the snow for almost an hour. [ 62 ] As to the possibility noted by Dr.

Dazé that the large hematoma is compatible with a fall on the sidewalk, closer in time to the brain scan, this subsequent fall in no way breaks the chain of causation, according to the Crown. Quite the contrary, the Crown submits that the first punch caused some initial head trauma that led Dessurault to wander the streets, unsteady on his feet and confused. The second or subsequent falls thus occur because of this impairment.

On this continuum, applying the “but for” test, the Crown submits that the proof establishes, beyond reasonable doubt, that but for that first punch and the initial fall, Dessurault would not have been impaired, both physically and mentally. As such, the Crown argues, any subsequent fall causing a large hematoma, was itself caused in fact and in law by White. Recognizing the element of the slippery sidewalks, the Prosecution refers to the evidence of Dessurault’s daughter, as well as his employee who describe Dessurault as a surprisingly fit and capable 84-year-old.

Despite some occasional memory lapses or “senior moments” he was able to work full-time, drive a car, was fully autonomous and appeared much younger than his age. According to the Crown, there is no intervening event that breaks the chain of causation. [ 63 ] According to the defense, Dessurault’s unsteady gait as he leaves Video Erotica and walks outside is not any different from the way he walks as he enters. As well, Mr.

Kaboush, the janitor, is seen talking to Dessurault just before Dessurault leaves Video Erotica. [ 64 ] Kaboush testified for the defense and stated that he did not notice anything unusual or abnormal about the behavior of Dessurault, nor did he notice any injuries. Kaboush did have to help Dessurault open the back door by explaining the mechanism to unlock it, but this did not strike Kaboush as anything peculiar. The Defense also point to the slippery and snowy streets and to the very real possibility that Dessurault slipped and fell for reasons unrelated to the first fall. The evidence of Dr.

Dazé supports the theory of a subsequent fall causing the intracranial hematoma. As such, the defense submits that there is a reasonable doubt that the assault caused the brain injury. The legal principles of causation [ 65 ] Section 222(1) of the Criminal Code provides that “[a] person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”. [ 66 ] For

an act or omission to “cause” the death of a human being, it must be a contributing cause of the death, beyond the trifling or minor range [9] . Determining causation requires an assessment of both factual and legal causation. As explained by the Supreme Court of Canada in R. v . Nette [10] : Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

Legal causation […] is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. [ 67 ] As Doherty J.A explains in R. v.

Talbot , in determining whether legal causation is established, the inquiry is directed at the question of whether “in the eyes of the criminal law” the accused person should be held responsible for causing the death. [11] Application of the principles to the facts [ 68 ] The Court must determine whether the punch White threw was a “significant contributing cause” of Dessurault’s death [12] , either because the ensuing fall caused the brain injury, or because it caused some impairment which later caused Dessurault to fall and hit his head, thus causing the brain injury. [ 69 ] The Court makes the following factual findings, based on the evidence and the reasonable inferences that can be drawn from it,

without resorting to speculation: - Before the incident, Dessurault walked with an uneven gait, as evidenced by his arrival at Video Erotica; - When walking around Video Erotica after the punch, he is seen going toward various doors, trying to open some of them. This could be compatible with a state of confusion, looking for the exit door, just as it could be compatible with his looking for someone or something, given the fact that he was just attacked; - He is seen at 8:10 pm in Video Erotica, almost losing his balance [13] ; - He does not go to his car in the parking lot, but instead goes to Ste.

Catherine Street. This could be because he is lost and confused or because he decided to go for a walk. According to Léonard, it was not unusual for Dessurault to go eat at a restaurant downtown and he usually would come back to the motel just minutes before the 10 pm shift; - He crosses in the middle of Ste. Catherine Street, and does not seem to notice the cars coming toward him. One car almost hits him. [14] This does seem to point toward some confusion on his part; - He is seen wandering the snowy streets.

There is no way to infer why he does so, without speculating; - He occasionally seems to lose his footing; - He tries the doors at the police headquarters but they are locked. Was he confused and looking for help? Did he know it was the police headquarters? Did he want to report a crime? Here too, no particular inference may be drawn from this action, without resorting to speculation; - The streets and sidewalks are significantly snow-covered and slippery [15] ; - Dessurault falls at 8:35 pm [16] . The camera is too far away to see exactly how he falls. A cyclist comes to his assistance.

It takes some time for Dessurault to get up and continue walking. The cyclist leaves Dessurault without further intervention. - Dessurault exhibits more difficulty walking after the fall at 8:35 pm; - By the time he is found by Rocheleau at 9 pm, he is bloody and considerably impaired. He cannot hold himself up and he is obviously confused. This condition seems to worsen as he arrives at the hospital and vomits in the waiting room. [ 70 ] In determining the cause of the brain injuries, the Court notes that according to Dr.

Dazé, it is likely that all of the intracranial injuries, as well as the bilateral fractures, were caused by a fall, closer in time to when Dessurault was found. The question thus becomes whether the initial punch (and fall) caused a subsequent fall. [ 71 ] A review of the evidence as a whole, allows for a possible inference that Dessurault’s second fall at 8:35 pm and his further difficulties at 9 pm are related to a state of confusion and physical impairment caused by the punch and the first fall. However, this is not the only possible inference.

Watching the video footage repeatedly, one may be tempted to find indicia of the suggested impairment. But it is not sufficiently convincing. It is possible that Dessurault, after the incident in the peep show, decided to walk around outside, as a matter of choice and not because he was confused.

It is also possible that he fell because of the slippery streets, and not because he was already impaired: the snowy conditions certainly made walking more difficult for any pedestrian, let alone an 84-year-old wearing shoes and not winter boots. [ 72 ] In conclusion, because the proof is equally compatible with the cause of the subsequent falls being unrelated to the initial assault, the causality between the punch and the death has not been established beyond reasonable doubt . Application of

section 662 Criminal Code [ 73 ] Section 662(1) Criminal Code provides that an accused may be convicted of an included offence where the evidence proves its commission, but not the offense charged. As explained above, the evidence does not support a conviction of manslaughter but it is sufficient for the offence of assault causing bodily harm (section 267 Cr. C.).

However, to be an “included offense”, the essential elements of the included offense must be contained in the offense charged, either as described in the enactment creating the offense or as charged in the count. [17] [ 74 ] There is no suggestion by White that he was unaware that the charge of homicide rested on the underlying offence of the alleged assault. Nonetheless, the Court must refer to the indictment itself, and not what the accused knew. In R. v. G.R , [18] the majority of the Supreme Court stated: It is fundamental to a fair trial that an accused knows the charge or charges he or she must meet.

The proper focus is on what the Crown alleges, not on what the accused already knows. An accused will often know a good deal more about the circumstances of an offence than the police or Crown will ever know, but it is not enough for the Crown to say to an accused "you know perfectly well what you're guilty of".

The basis of our criminal law is that he or she is only called upon to meet the charge put forward by the prosecution. [ 75 ] Applying this rule to the present case, the charge as worded, without particulars to qualify the manner of committing homicide, does not support a finding of guilt on a lesser and included offence of assault. FOR THESE REASONS, THE COURT: ACQUITS Jonathan White on the charge of manslaughter.

__________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Éric de Champlain Attorney for the Prosecution (DPCP) M e Sharon Sandiford M e Gabriel Garant-Aubry M e Jacky-Eric Salvant Attorneys for the accused Dates of hearing: January 8, 9, 10, 11, 12, 29, 30, and 31, 2018; February 1, 2, 8, and 9, 2018