R. v. Hill, 2019 ONCJ 225

ONTARIO COURT OF JUSTICE CITATION: R. v. Hill , 2019 ONCJ 225 DATE: April 10, 2019 BETWEEN: HER MAJESTY THE QUEEN — AND — JAYME CHRISTOPHER HILL Before Justice Robert S. Gee Heard on December 18, 2018 and February 6, 2019 Reasons for Judgment released on April 10, 2019 Sheena MacDougall........................................................................... counsel for the Crown Jaime Stephenson………………………………………………. counsel for the accused Gee J.: INTRODUCTION [ 1 ] There is a 24 hour Tim Hortons (Hortons) located on the southwest corner of Dalhousie Street and Queen Street in the City of Brantford.

This particular Tim Hortons is somewhat notorious having recently been featured in a Globe and Mail

article that highlighted how the opioid crisis is taking a disproportionate toll on this community. [1] [ 2 ] This wasn’t news to the citizens of Brantford. This Hortons has been infamous to the residents of this city long before the Globe came to town. The events of October 6, 2017 only helped add to its infamy. At about 3:40 a.m. that night, Paul Black exchanged words with two males outside the Hortons entrance. One of the males swung at him, striking him once in the head. The blow was forceful enough to instantly render Mr. Black unconscious, and he fell hard to the pavement.

He survived but spent the next three days in the ICU and just over a week total in the hospital. Amongst other injuries, Mr. Black suffered from a non-displaced cranial fracture. [ 3 ] Jayme Hill is alleged to be the person who punched Mr. Black and as such was charged with aggravated assault. The only issue in this trial was the identity of the puncher. The balance of these reasons will explain why I find the Crown has failed to prove that Mr. Hill was the person who punched Mr. Black and as a result why the charge against him will be dismissed.

FACTS [ 4 ] The entrance to Hortons is located on the corner of Dalhousie and Queen Street. It cuts the corner of the building at a 45 degree angle to the streets. The entirety of the incident that led to the charges against the accused was captured on video surveillance cameras. There was a surveillance camera on the west side of Queen Street, south of Dalhousie that provided a view north through the intersection. There was another camera on the south side of Dalhousie, west of Queen Street that looked east again through the intersection. Because the entrance to Hortons is on an angle.

The entrance to the restaurant itself is not visible from these outside cameras. There are also several cameras inside that covered the interior. [ 5 ] The cameras inside provided good quality, colour videos. The quality was such that the defence has admitted that one of the persons depicted on the videos from inside is the accused. The quality of the video from outside is not nearly as good. The Dalhousie Street video is colour while the Queen Street video is black and white.

Given the quality of the images, the ambient lighting and the distances at which the important events are captured, it would be impossible from these videos alone to make any identification of

persons depicted on them. [ 6 ] From the inside videos, we know the accused was wearing a black t-shirt with red writing on the front and a black design inside a large red rectangle on the back. He was also wearing dark jeans and a black baseball style hat worn backward. He seemed to be with another person that night who wore a red sweater, light three quarter length pants, white running shoes and a red baseball hat. This person was never identified. [ 7 ] Four witnesses were called at trial, two for the Crown and two for defence. The Crown called the complainant Mr.

Black and Andre Gudgeon, a police officer who responded to the scene. The defence called Tanya McCoy, a Hortons employee who was on a cigarette break outside near the incident when it occurred and Samuel McCormick, also a police officer who was with Officer Gudgeon that night. [ 8 ] By the time the police arrived Mr. Black was lying on the street unconscious and the accused and the person in the red sweater were not present. The punch that felled Mr. Black can only been seen from the outside videos. The outside videos show that Mr.

Black arrived on the scene and was there for a few minutes when there appeared to be words exchanged between him and the person who ended up punching him. As they exchanged words, the person the Crown alleges is the accused punched Mr. Black once and Mr. Black immediately falls flat on his back on the street. The puncher then immediately leaves, walking south on Queen Street and as he passes the surveillance camera on Queen Street he turns to look back to where Mr. Black was lying.

As he does so the back of his t-shirt is visible and according to the Crown the same design can be seen on it as is seen on the t-shirt worn by the accused on the inside videos. [ 9 ] Since Mr. Black and Ms. McCoy were the only persons there at the time of the incident, they are the only witnesses who would have any direct evidence who the puncher was. However for reasons I will expand on in a moment, their evidence in this regard was unreliable and I place no weight on it.

As well, since the officers arrived after the punch was thrown and the puncher had left, their evidence also does not assist in identifying who threw the punch. [ 10 ] What this means is that the ability of the Crown to prove the accused was the person who punched Mr. Black rested solely on whether his identity could be established through reliance on the various surveillance videos. For the reasons that follow I find the videos are incapable of establishing the accused was the puncher beyond a reasonable doubt. ANALYSIS [ 11 ] At trial, Mr.

Black purported for the first time, to identify the accused as the person who assaulted him. I place no weight in Mr. Black’s identification for reasons that go beyond the well-known frailties of an in dock identification. [ 12 ] To start, Mr. Black was highly intoxicated that night. He admitted as much and it was also apparent to the officers who arrived on the scene. His evidence was he had just left a nearby pub when the assault occurred. It’s clear though the assault occurred at approximately 3:40 a.m. well past the closing time for any pub.

Further it appears drinking to excess like this was not uncommon for Mr. Black. The medical records filed indicate when he was at the hospital in the ensuing days he was suffering from alcohol withdrawal. Additionally he suffered a significant head injury that night which he admitted left him with memory problems. For these reasons I find that his evidence as to who may have assaulted him unreliable. [ 13 ] Similarly I find the evidence of Ms. McCoy to be unreliable and I give it no weight. She testified to being outside nearby when the incident occurred.

She apparently was not paying close attention to the altercation as she thought Mr. Black was pushed as opposed to punched and that the person responsible was wearing white. In the absence of the surveillance videos this may have been evidence capable of raising a reasonable doubt. However even given the limitations on the quality of the outside surveillance videos, it is clear that the person who assaulted Mr. Black was wearing black or dark clothing. As such, it is clear her evidence is simply wrong and unreliable and for this reason I assign it no weight. [ 14 ] What that leaves is an assessment of whether Mr.

Hill’s movements can be tracked well enough on the outside videos given it is known from the inside videos, who he was, what he was wearing and when he left the Hortons. [ 15 ] An issue also arose whether the time stamps on all the videos matched up well enough to conclude we were watching a seamless unfolding of the events as they happened that night, over the various videos without any gaps in time. There was no direct evidence at trial that the videos were all linked to the same Tim Horton’s surveillance system.

The Crown though did a very helpful and thorough comparison where she pointed out a number of incidents in the videos, such as when a person left the store, a vehicle went through the intersection or when the emergency response vehicle lights are first visible and demonstrated that the times on the videos were all the same for these events.

As such I am satisfied the time stamps on the videos are synced and we are able to watch a seamless chronology of what took place that night. [ 16 ] The Crown has also done an excellent job attempting to demonstrate as best she could given the limitations to the videos available, that we have a continuous record of the accused’s movements from the time he left the Hortons until he assaulted Mr. Black and left the area. However I find that on close reflection the videos are not capable of proving beyond a reasonable doubt that it was Mr. Hill who struck Mr. Black that night. [ 17 ] From the time Mr.

Hill and the man in the red sweater leave the Hortons until Mr. Black is assaulted, is about 15 minutes. I agree with the Crown that a careful viewing of the videos shows Mr Hill and the man in the red sweater leave the Hortons and remain outside near the entrance for a period of time. Given the entrance to the store is at an angle to the street corner, there are times when Mr. Hill, if he is standing outside the store but in the entrance way to it, is not visible to any of the cameras.

However a careful viewing of all the videos during these points in time would show no one else coming or going from that area or coming from inside, so when a person resembling Mr. Hill emerges from one of these gaps in our view, we can be assured it is still him. [ 18 ] When I say resembling I should note it is only due to the fact we know who he was inside and what he was wearing that we can track his movements outside.

The outside video quality is such that no distinctive features; hair, eyes, scars, tattoos etc., are visible, all we have are generic clothing descriptors to go by in that we can tell he's wearing a dark shirt and dark pants. It is a little better for the

man in the red sweater as the colour of his sweater on the Dalhousie street video is visible as is the fact he's wearing light three quarter length pants, white shoes and carrying a back pack. Facial feature or other physical characteristics for him as well are not capable of distinction from the outside videos. [ 19 ] This presents a particular and in my opinion fatal problem for the Crown at one particular point in time. After standing outside the Hortons for almost 9 minutes, Mr.

Hill and the man in the red sweater walk across to the east side of Queen Street then to the north side of Dalhousie and they then walk east on Dalhousie until they are completely out of view. After approximately one minute two persons return from the direction Mr. Hill and the man in the red sweater went, to the front of the Hortons. They never re-enter the store so their identity from the inside cameras cannot be made. [ 20 ] It is most likely based on the outside video, the same man in the red sweater as seen before as he seems to be wearing the same type of sweater, white shoes and be carrying a back pack.

As for the other person, all that can be definitively stated is that he is wearing a dark shirt and dark pants, similar to what Mr. Hill had been wearing. About five minutes later, Mr. Black has come on the scene and is assaulted by the person in black who returned with the man in the red sweater. This person then walks south on Queen Street and as he passes the camera turns to look back to where Mr. Black was laying.

As he does so it is clear there is a large rectangular design on the back of his shirt. [ 21 ] The Crown’s position is it is reasonable to assume the person in black who left and then returned is Mr. Hill. I can be satisfied it is him since we knew it was him who left with the man in the red sweater only a minute before, it is late at night and the streets are not busy, they returned to the Hortons from where they left and after the assault, the man in black has a design on the back of his shirt that is the same as the one that was clearly visible on the back of Mr.

Hill’s shirt inside. [ 22 ] Starting with the design on the back of the shirt, the Queen Street video quality is not near good enough for me to determine it is the same design as was visible on Mr. Hill’s shirt seen inside. At best all I can say is it perhaps could be the same given its size and placing but I am far removed given the quality of the video, from concluding it is the same. [ 23 ] What I am left with then is the logical inference the Crown wishes me to draw which is the person who left with the man in the red sweater, which we know to be Mr.

Hill, is based on the circumstances noted above, the same person who came back with him. That is an inference available on the evidence but I do not think it is the only reasonable inference. The clothing worn is just too generic and the video quality too poor to form the basis to find beyond a reasonable doubt that it is one in the same person. Without re-establishing the identity of that person as Mr. Hill from the higher quality inside videos or by some other means, the inference it is him is just too tenuous to draw. CONCLUSION [ 24 ] When the evidence is viewed as a whole, it is clear that Mr.

Hill is the most likely person to have assaulted Mr. Black. However proof beyond a reasonable doubt is an exacting standard. It is as close as we come in law to requiring moral certainty. It may mean that persons such as Mr. Hill, who is shown on the evidence to most likely be guilty get to walk free. However history has also shown when less rigorous standards are applied, wrongful convictions are inevitable. [ 25 ] As such, Mr. Hill is entitled to the benefit of any doubt and since I am left with a doubt here, the charge against him will be dismissed. Released: April 10, 2019 Signed: Justice Robert S. Gee