2019 QCCQ 1552, 2019 QCCQ 1552

R. c. Pierson-Bishop 2019 QCCQ 1552 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal and Penal Division» No: 500-01-136496-160 DATE: February 25, 2019 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v. TAESHA AALIYAH PIERSON-BISHOP Accused ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ I.

OVERVIEW [ 1 ] On April 15, 2016, Kieara Francis decided to celebrate her nineteenth birthday at Tokyo Bar, a club located on St-Laurent Blvd. in downtown Montreal. [ 2 ] She arrived at the club at around midnight along with four of her friends: Judy Ann Nguyen Wixom, Anissa Garcia, Akilia Brathwaite and Kadeena McNichol. [ 3 ] The accused was also present at Tokyo Bar that night, although unaccompanied. At the time, she was in a relationship with Ms. Francis’ ex-boyfriend, Mr. Nesfield. [ 4 ] In the early hours of April 16 th , Ms. Francis was set to leave the club but was unable to find her cell phone.

She suspected that the accused had taken it and confronted her. [ 5 ] Ms. Francis, three of her friends and the accused all ended up in the bathroom of the club. An altercation erupted. Ms. Francis and Ms. Wixom were both stabbed by the accused. [ 6 ] As a result, the accused stands charged of assault with a weapon and assault causing bodily harm on both Ms. Francis and Ms. Wixom. [ 7 ] She admits to having wounded both victims with a sharp object but argues that she was justified in doing so as she was acting in self-defence. [ 8 ] The fact that Ms. Francis and Ms. Wixom suffered bodily harm is not disputed.

Both sustained serious injuries which, according to them, stem from an unprovoked attack.

II. ISSUE [ 9 ] I must determine whether the Crown has proved beyond reasonable doubt that the accused was not acting in self-defence. III. THE EVIDENCE [ 10 ] The Crown called five witnesses: Ms. Francis, Ms. Wixom, Ms. Garcia, Ms. Brathwaite and Constable Barry Étienne. Ms. McNichol did not testify. It is understood that she did not witness the altercation that took place in the bathroom. [ 11 ] I do not intend to summarize each individual testimony at length. Rather, the

summary of the Crown’s evidence will be divided into five distinct headings consistent with the chronology of events, namely: a. background; b. the outing at Tokyo Bar; c. the cell phone issue; d. the bathroom incident; and e. the aftermath. [ 12 ] I will then proceed to a review of the defence evidence which solely consists of the testimony of the accused. Crown’s evidence a. background [ 13 ] Ms. Francis was in a relationship with Mr. Nesfield. She broke up with him in May 2014 but they continued to remain intimate. During that time, Mr. Nesfield was also intimate with the accused. He eventually told Ms.

Francis. [ 14 ] Despite attending the same school, Ms. Francis and the accused were not friends. In fact, they were strangers. While browsing the internet, Ms. Francis saw a photograph of Mr. Nesfield with the accused. [ 15 ] In late 2014, Ms. Francis decided to approach the accused to let her know that Mr. Nesfield was “messing around” with both of them at the same time. [ 16 ] There was no other significant interaction between Ms. Francis and the accused prior to the alleged offences.

They may have ran into each other coincidentally at school, but on no more than two occasions. [ 17 ] At the time of the events, Ms. Francis and the accused were no longer attending the same school. However, she knew that the accused now had a child with Mr. Nesfield.

[ 18 ] Ms. Wixom, Ms. Garcia and Ms. Brathwaite did not know the accused personally but knew of her. They had been told by Ms. Francis that she was in a relationship with her ex-boyfriend. They also knew what the accused looked like because Ms. Francis had shown them online photographs of her in the past, including as recently as two weeks prior to the events at Tokyo Bar. b. the outing at Tokyo Bar [ 19 ] On the evening of April 15, 2016, Ms. Francis and her friends gathered at Ms. Garcia’s house to get ready for the night out.

They drank some alcoholic beverages and then headed to the club. [ 20 ] They arrived at Tokyo Bar between midnight and 1:00 am. It was a busy night at the club. The dance floor was fairly crowded. [ 21 ] Ms. Francis noticed that the accused was present as she walked passed her on her way to the bathroom. She did not speak to her at that point. [ 22 ] The group of friends were having a good time while listening and dancing to music. They mostly stuck together throughout the night. None of them drank alcohol at the club. c. the cell phone issue [ 23 ] At around 2:30 am, Ms. Francis was about to leave the club.

She intended to text her mother to let her know that she was on her way home. She reached for her phone in the back pocket of her pants but could not find it. She asked her friends if they had her phone. They started to look for it. [ 24 ] Ms. Francis saw that the accused was standing not far. She thought that she might have taken her phone. She therefore approached her and asked her to follow her to the bathroom because it was too noisy near the dance floor area. [ 25 ] As Ms. Wixom was scanning the dance floor to find the phone, she noticed that Ms. Francis was no longer in her immediate vicinity.

She asked around if anybody had seen Ms. Francis. She then took the initiative to look for her and eventually found her in the bathroom with the accused. The bathroom had no door [2] . [ 26 ] In her testimony, Ms. Brathwaite made no reference to Ms. Francis having lost her phone and seeking help from others to find it. Nor did she refer to Ms. Wixom asking around for Ms. Francis. Ms. Brathwaite explained that she simply saw Ms. Francis walking by herself towards the bathroom. She decided to follow her because she did not want her to go to the bathroom by herself. [ 27 ] As for Ms. Garcia, she testified that Ms.

Francis asked to keep her phone in her purse when they first arrived at the club. Much like Ms. Brathwaite, Ms. Garcia did not mention being asked to look for Ms. Francis’ phone or Ms. Francis herself for that matter. Ms. Garcia merely stated that she had lost sight of Ms. Francis at one point in the evening. As she looked for her, she approached the open bathroom and noticed that Ms. Francis and the accused were both inside. d. the bathroom incident [ 28 ] Crown witnesses provided diverging accounts of the events that transpired inside the bathroom.

Due to its significance, this part of the narrative will be summarized on an individual basis. - Ms. Francis’ account

[ 29 ] Ms. Francis and the accused entered the bathroom with Ms. Wixom following in their footsteps. Ms. Francis asked Ms. Wixom to retreat, indicating that she would be out soon. Ms. Wixom complied and stayed near the entrance door frame, within sight of Ms. Francis. [ 30 ] Ms. Francis confronted the accused and asked her if she had taken her phone. The accused denied having her phone. She replied that her and her boyfriend, Mr. Nesfield, had enough money and did not need to steal a cell phone. [ 31 ] At the same time, Ms. Garcia arrived in the bathroom and informed Ms. Francis that she had found her phone.

The accused punched Ms. Francis in the face while she had her attention turned to Ms. Garcia. A fight broke out. Ms. Wixom tried to pull Ms. Francis off while Ms. Garcia was attempting the same manoeuver with the accused. [ 32 ] Ms. Francis felt a sharp pain in her stomach but initially ignored it due to adrenaline. She heard Ms. Wixom scream. All movements came to a halt. The bathroom became silent. The accused ran out. [ 33 ] Ms. Francis saw blood gushing out of Ms. Wixom’s stomach and ran out for help. Police officers eventually sat her down and told her she had been stabbed as well. - Ms.

Wixom’s account [ 34 ] When Ms. Wixom reached the bathroom area, she saw Ms. Francis speaking to the accused. She approached them both and inquired as to whether there was an issue because Ms. Francis was leaning towards the accused. [ 35 ] The accused told Ms. Wixom that Ms. Francis was accusing her of stealing her phone. She denied being involved in any way whatsoever. Ms. Wixom suggested to Ms. Francis to leave the bathroom. Ms. Francis then brushed Ms. Wixom off, told her to step aside and indicated that she could handle things on her own. Ms. Wixom remained by the door frame as Ms.

Francis and the accused continued speaking to each other. [ 36 ] Ms. Brathwaite and Ms. Garcia then reached the bathroom and stood near the door. Ms. Wixom warned them against going further inside the bathroom as Ms. Francis would likely ask them to back off. [ 37 ] As she became aware of the nature of the dispute, Ms. Garcia told Ms. Francis that she had her phone. As Ms. Francis turned to look at Ms. Garcia, the accused screamed something and punched Ms. Francis in the face with her right fist. [ 38 ] Ms. Wixom went in to break-up the fight and ended up close to one of the stalls. She tried to separate Ms.

Francis from the accused. She pushed Ms. Francis out of the way and into the stall. At that point, the accused was directly in front of her. She extended her arm out towards Ms. Wixom’s abdominal area. Ms. Wixom thought she had been punched. She did not see a knife. She fell to the ground and realized she was bleeding profusely. [ 39 ] Ms. Garcia helped her up and walked her to the dance floor where she collapsed again. [ 40 ] According to Ms. Wixom, Ms. Garcia and Ms. Brathwaite did not get involved in the altercation in any way. - Ms. Brathwaite’ s account [ 41 ] Ms. Braithwaite saw Ms.

Francis heading to the bathroom alone. She did not see the accused follow Ms. Francis to the

bathroom. [ 42 ] When Ms. Brathwaite entered the bathroom, Ms. Francis and the accused were arguing back and forth over a missing phone. Nobody else was there yet. Two of her friends came in afterwards – Ms. Garcia first, then Ms. Wixom. [ 43 ] Shortly after making her way into the bathroom, Ms. Garcia told Ms. Francis that she had found her phone. The accused got mad and punched Ms. Francis in her face. A scuffle ensued. [ 44 ] Ms. Brathwaite, along with Ms. Wixom and Ms. Garcia, sought to separate the two girls. The fight took the direction of the last stall in the bathroom. According to Ms.

Brathwaite, at some point, they all ended up in the last stall [3] . She did not see any blows with a knife. [ 45 ] The accused ran out of the bathroom. Ms. Brathwaite then realized that Ms. Wixom had been stabbed. It is only later that she found out that Ms. Francis had also been wounded during the altercation. - Ms. Garcia’s account [ 46 ] When Ms. Garcia approached the bathroom, she saw Ms. Francis face to face with the accused. While standing near the door frame of the open bathroom, Ms. Garcia heard them bicker about a phone. [ 47 ] Ms. Garcia reminded Ms.

Francis that she had her phone at which point the accused shouted: “bitch, I told you that I don’t have your phone, me and my man have enough money no to need to steal a phone”. The accused then swung at Ms. Francis and a fight broke out. [ 48 ] According to Ms. Garcia, Ms. Wixom got involved in the altercation and ended up in a bathroom stall with both Ms. Francis and the accused. Everything happened very quickly. She did not see any stabbing motions. [ 49 ] The accused then ran out of the bathroom. Ms. Garcia saw Ms. Wixom lying in a pool of blood with a huge gash near her belly button. Ms.

Wixom was screaming and appeared to be fighting for her life. Ms. Garcia understood that her friend had been stabbed. She managed to bring her up to her feet and walk her to the dance floor. [ 50 ] Ms. Garcia testified that she and Ms. Brathwaite did not jump into the fight. She had intended to do so but the accused left the premises before she could intervene. e. the aftermath [ 51 ] Constable Étienne, while on patrol on St-Laurent Blvd., heard over the radio from the dispatch (911) at 2:57 am that somebody had been stabbed at Tokyo Bar.

The information shared on the radio included a description of the suspect. [ 52 ] Shortly thereafter, Constable Étienne was further informed that a person matching the description had been located 50 meters away from Tokyo Bar. He was called for assistance. [ 53 ] Constable Étienne headed towards the intersection of Pine Ave. and St-Dominique St. The person matching the description, who happened to be the accused, was standing at the intersection along with three other persons, at a distance of 50 meters from the front entrance of Tokyo Bar and 15 to 20 meters from the back door of the club.

[ 54 ] Constable Étienne detained the accused for investigative purposes. He observed that she had a cut between the thumb and index of her right hand. There were also blood stains on her dress. He put her under arrest and read her constitutional rights. [ 55 ] The accused appeared nonchalant and calm. She demonstrated no emotion and did not answer any questions during the reading of her rights. She refused to identify herself until she arrived at the police station. [ 56 ] Meanwhile, both Ms. Francis and Ms. Wixom were taken to hospital when the paramedics arrived at Tokyo Bar. Ms. Brathwaite and Ms.

Garcia stayed at the club to provide separate statements to the police. [ 57 ] Ms. Francis sustained three stab wounds: two in the abdomen and one in the upper left buttock area [4] . Ms. Wixom suffered a stab to the anterior abdominal wall [5] . [ 58 ] Ms. Francis was hospitalized for approximately one day. The stab wounds left some scars on her body. She only occasionally felt some pain. [ 59 ] Ms. Wixom’s injuries were far more lasting. She was hospitalized for almost two weeks in hospital and had a surgery due to complications in her stomach.

It took her two months to recover and she experienced significant sleeping problems. Defence evidence: testimony of the accused [ 60 ] In late 2014, the accused and Ms. Francis were attending the same school, namely: Place Cartier Adult Education Centre. Ms. Francis approached her to ask her if she was dating her ex-boyfriend, Mr. Nesfield. According to the accused, Ms. Francis did not know at the time that her ex-boyfriend was in a relationship with somebody else.

That was the first and last time they spoke until their unfortunate encounter at Tokyo Bar. [ 61 ] In July 2015, the accused returned to Place Cartier Adult Education Centre. At first, a friend of Ms. Francis came to the school and took a surreptitious photograph of the accused while pregnant. Although no longer enrolled there, Ms. Francis herself began coming to the school on a regular basis to sit across the accused at the cafeteria and take pictures of her with her cell phone. [ 62 ] The accused could not recall how long this lasted but stated that she had not seen Ms.

Francis for a while when they ran into each other at Tokyo Bar on April 16, 2016. [ 63 ] On that evening, the accused arrived at the club at around midnight. She was alone. She stood at the bar for close to two hours because the dance floor was packed. She had one drink at approximately 2:00 am. [ 64 ] At one point, the accused went to stand somewhere else. Ms. Francis passed by her and bumped her shoulder with a smirk on her face. They did not exchange words. [ 65 ] Ms. Francis eventually came back and told her she wanted to speak to her in the bathroom. The accused agreed to follow her. Ms.

Francis pulled her by the arm inside the bathroom. The accused told her to relax given that she was being compliant. [ 66 ] Once inside the bathroom, Ms. Francis began squabbling with the accused. She was convinced that she had stolen her cell phone. The accused denied any wrongdoing, indicating that she had nowhere to put her phone because she was only wearing a dress. [ 67 ] She told Ms. Francis that she had enough money and did not need to steal a phone. The accused also pointed out that it made

no sense for Ms. Francis to target somebody in particular, given that she had lost her phone in a crowded environment. [ 68 ] Ms. Francis threatened her by stating that she knew where she and her boyfriend lived. The accused tried to leave twice but each time Ms. Francis pulled her back in the bathroom by holding on to her arm and stating that she was not done speaking to her. [ 69 ] Ms. Garcia came in the bathroom and informed Ms. Francis that she had her phone in her purse. Ms. Francis asked her to mind her business. Ms. Garcia stood in the doorway. Ms. Wixom then came in and Ms.

Francis also told her to mind her business. [ 70 ] The accused attempted to leave yet again. But Ms. Francis held on to her arm to prevent her from exiting the bathroom. This time around, the accused swung her arm to try to break Ms. Francis’ grip. Ms. Francis countered by pulling her in one of the bathroom stalls. [ 71 ] Once in the stall, the accused was punched repeatedly by three to four persons, including Ms. Francis, Ms. Wixom and Ms. Garcia. She ended up on her knees with her head down facing the toilet bowl in a crouching position. She was surrounded but nobody was directly in front of her.

Her hands were in the back of her head and neck to protect herself from the blows. Initially, she did not try to fight back nor did she scream for help. [ 72 ] At one point, however, she noticed that one of the girls positioned beside her was holding a sharp object in her hand. Feeling surrounded and unable to get out, the accused became increasingly panicked. She extended her right arm behind her and grabbed the object from that person by the blade, cutting herself in the process.

The accused then frantically swung the object in all directions at her assailants in an attempt to escape the situation. [ 73 ] As one of her assailants exited the stall, the accused managed to run out of the bathroom and left the club as fast as possible to avoid being followed by the girls. She did not seek any assistance, whether from bouncers present at the club or police officers thereafter. [ 74 ] To the best of her memory, the accused dropped the sharp object once outside Tokyo Bar. As she was running away, she saw a girl she knew from school on the street.

The accused stopped to ask her whether she could go fetch her coat at the club. This is when she was intercepted by police officers. [ 75 ] It is only upon arrest that the accused found out that she had wounded two persons with the sharp object. Except for Ms. Francis, at the time, she did not know the other girls who attacked her. IV. THE LAW OF SELF-DEFENCE [ 76 ] Self-defence justifies a conduct which would otherwise constitute an illegal act. The law of self-defence is enshrined in

section 34 of the Criminal Code (“ C.C ”). [ 77 ] The law of self-defence, as amended in 2012, is enshrined in

section 34 C.C. which reads as follows: Defence — use or threat of force 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.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors […] [ 78 ] This

section defines the circumstances in which and prescribes the nature and extent of what a person is lawfully entitled to do for the purpose of defending or protecting themselves or others from the actual or threatened use of force against them. [ 79 ] Pursuant to

section 34 C.C. , there are now three simplified threshold requirements for the application of self-defence: • a reasonable belief; • a defensive purpose; and • a reasonable response. [ 80 ] Subsection 34(1)(

a) C.C. requires that the accused believes on reasonable grounds that force is being used or that threat of force is being made to herself or to another. [ 81 ] It is, in effect, a modified objective test. The focus is whether the subjective belief of the accused is based on reasonable grounds. It must be determined whether a reasonable person in the same circumstances as the accused would have a similar belief that force was being used or threatened against him or another person. [ 82 ] Subsection 34(1)(

b) C.C. requires consideration of the accused’s purpose in committing an illegal act. The test is a subjective one. It examines whether the response to force or threats was undertaken for the purpose of defending or protecting themselves or the other person. [ 83 ] Finally, subsection 34(1)(

c) C.C. entails an assessment of whether the accused’s response was reasonable in the circumstances. This assessment is also governed by a modified objective test. [ 84 ] The issue is whether what the accused did was reasonable in the circumstances as he knew them or reasonably believed them to be.

The question becomes whether a reasonable person in the accused’s circumstances would have responded in a similar manner. [ 85 ] Subsection 34(2) C.C. sets out a non-exhaustive list of factors that have to be considered and weighed by the Court to decide if the response was reasonable [6] . [ 86 ] The accused is not required to prove that she acted in self-defence. She only bears an evidential burden to ensure that there is some evidence to give an air of reality to each of the three requisite elements of self-defence [7] .

[ 87 ] If the evidence gives rise to an air of reality, the Crown bears the burden to negative at least one of the pre-conditions to self- defence beyond reasonable doubt [8] . V.

ANALYSIS [ 88 ] Prior to deciding the substantive aspects of the defence set forth by the accused, I must first consider whether it has an air of reality. [ 89 ] The air of reality test requires the Court to determine whether there is (1) evidence (2) upon which a properly instructed jury acting rea​sonably could acquit if it believed the evidence to be true [9] . [ 90 ] The defence presented by the accused must have an air of reality to each of its essential elements. [ 91 ] Applying the air of reality test requires a trial judge to consider the totality of the evidence and assumes the evidence relied upon by the accused to be true.

The trial judge is not to make findings of fact, weigh evidence, determine credibility, draw determinate inferences, or even assess the likelihood of success [10] . [ 92 ] Any doubt as to whether the air of reality threshold is met should be resolved in favour of leaving the defence to the trier of fact [11] . [ 93 ] Given the low threshold of the air of reality test, Crown counsel acknowledged that there is an air of reality to the accused’s claim that she acted in self-defence. [ 94 ] I agree with Crown counsel.

Indeed, in light of the testimony of the accused, there is evidence on the record, that: ➢ the accused was assaulted by at least three persons in a bathroom stall; ➢ the accused was outnumbered and surrounded, preventing her from exiting the stall; ➢ one of the assailants was holding a sharp object in her hand; ➢ the accused managed to disarm this person; and ➢ the accused swung the sharp object at her assailants in order to escape the beating. [ 95 ] A properly instructed jury acting reasonably could acquit if it believed this evidence to be true.

I therefore conclude that there is an air of reality to the accused’s claim that she acted in self-defence. [ 96 ] I must now ascertain whether the Crown has established beyond reasonable doubt that the accused was not acting in self- defence. [ 97 ] Considering that I am confronted with conflicting evidence on the elements of the defence advanced by the accused, a vital issue in this case, I am required to consider the three-prong test for analyzing evidence outlined in R . v. W.(D .) [12] which, in the context of a judge sitting alone, can be transposed as follows:

1. first, if the Court believes the evidence of the accused, obviously it must acquit him; 2. second, even if the Court does not believe the evidence of the accused but is left in reasonable doubt by it, it must acquit him; 3. third, even if the Court is not left in doubt by the evidence of the accused, the Court must ask itself whether, on the basis of the evidence that it does accept, if it is convinced beyond reasonable doubt of the guilt of the accused. [ 98 ] In applying the principles set out in W.(D.) , I must be mindful of the presumption of innocence and its inextricable link to the concept of reasonable doubt [13] .

There is no onus on the accused to prove anything and the burden of proof never shifts to the accused [14] . [ 99 ] Guilt must be proven beyond reasonable doubt. While this burden of proof does not require absolute certainty, it is not enough to believe that the accused is likely or probably guilty. T he reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities [15] . [ 100 ] Credibility and reliability go to the heart of this case . Although both concepts are often intertwined to a certain extent, they do remain fundamentally different.

Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account [16] . [ 101 ] I must carefully avoid engaging in a “credibility contest”. In other words, a criminal allegation cannot be resolved by simply choosing between conflicting accounts. Doing so would shift the burden of proof to the accused or lower the standard of proof resting with the Crown [17] . [ 102 ] At all stages of my analysis, I must consider the evidence as a whole.

The evidence heard at a trial is not to be compartmentalized in watertight partitions, to be assessed in a piecemeal fashion [18] . [ 103 ] I may believe some, none, or all of the testimony of any witness, including that of the accused.

Likewise, I may believe inculpatory elements of the evidence of the accused while rejecting its exculpatory elements [19] . [ 104 ] Even if the accused is disbelieved, whether partially or entirely, and I am not left in a reasonable doubt by the evidence of the accused, in order for there to be a finding of guilt, I must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty [20] . [ 105 ] Simply put, mere disbelief of the evidence tendered by the accused does not equate proof beyond reasonable doubt of her guilt or, as in our case, disproof beyond reasonable doubt of an element of the defence. [ 106 ] Upon thorough examination, I do not believe that the account of the accused is an entirely accurate rendition of what took place in the bathroom, mostly because of the following problematic portions of her testimony. [ 107 ] The accused downplayed her involvement at the outset of the altercation by categorically denying hitting Ms.

Francis in the face. While Crown witnesses diverged in some areas, they were unanimous on that aspect. [ 108 ] The accused indicated that she did not scream or cry for help during the scuffle. This is inconsistent with her claim that she was fearing for her life while surrounded in the bathroom stall.

[ 109 ] Furthermore, the accused’s account of the circumstances under which she managed to disarm one of her assailants is implausible. The accused stated that she was crouched over the toilet bowl with her hands placed in the back of her head to avoid the blows. Her assailants were either beside or behind her, but not in front of her. [ 110 ] To then suggest that she was able to see the object and almost simultaneously get a hold of it while positioned in such a way, let alone in a constricted environment with an obstructed view, defies common sense.

In fact, the accused herself acknowledged under cross-examination that she could not see much while being punched inside the stall, including the face of her assailants. [ 111 ] The accused claimed that she only realized that the sharp object was a knife upon hearing the testimony of Crown witnesses at trial. This is simply unthinkable. [ 112 ] Not only did the accused see this object in the hand of one of her assailants, she held it in her own hand to push them away and then kept it for some time until dropping it off outside the club.

She even stated in her testimony that she had grabbed the object by the blade. [ 113 ] Having shown her hands to Constable Étienne, the accused must have been aware then that she had cut herself with that object. According to her testimony, she found out that she had wounded two persons once at the police station, the very night of the event. [ 114 ] Clearly, the accused knew that the object was a knife far before trial. [ 115 ] Also, the accused claimed that news that she had stabbed two girls came as a surprise. This is hardly believable.

The accused knew very well that she had swung a sharp object at her assailants and that it enabled her to successfully and finally exit the stall. Her dress was stained with blood and she got rid of the object not long after leaving the club. That she might have wounded her assailants could therefore not have come as a surprise. Quite the contrary, it was to be expected unless she was wilfully blind to that fact. [ 116 ] The accused stated that she left the club in a haste because she very much feared being followed by the group of girls.

Yet, she tossed the sharp object once outside the club – the same object she used to defend herself against her assailants and make her way out of the bathroom. Moreover, she did not seek any assistance from third parties as she exited the club. This behaviour is inconsistent with her alleged state of mind at the time. [ 117 ] In addition to raising credibility concerns, the accused’s version, in particular with respect to what happened inside the bathroom stall, is plagued by hesitancy, vagueness and occasional, if not selective, memory loss.

This also negatively impacts the reliability of her account. [ 118 ] For instance, the accused was unable to recall on which side of her the assailant holding the object was, how she precisely grabbed the object, how she swung at the girls, why Ms.

Francis had a stab wound in her back, what the sharp object looked like and where she dropped it off. [ 119 ] Because of the cumulative effect of these flaws, I do not accept as entirely accurate the exculpatory part of the accused’s testimony as it relates to the defence put forth. [ 120 ] However, I am left unsure about it when viewed in the context of the evidence as a whole.

Notwithstanding my earlier credibility and reliability findings, some segments of the accused’s testimony, in conjunction with frailties in the evidence tendered by the Crown, contribute to my indecision, thereby fostering a reasonable doubt. [ 121 ] Indeed, I give credit to the following features of the accused’s testimony :

➢ she did not instigate the initial interaction with Ms. Francis at the club; ➢ she politely complied with Ms. Francis’ request to follow her to the bathroom; ➢ she did not seek to cast Ms. Francis and her friends in the most negative light ➢ she did not instigate the verbal feud with Ms. Francis once in the bathroom – rather it was Ms. Francis who confronted her, who was leaning towards her and declined to leave the bathroom as pointed out by Ms. Wixom in her testimony; ➢ save for the use of profanities, the accused candidly acknowledged telling Ms.

Francis that she had enough money and did not need to steal her phone; ➢ she did not steal Ms. Francis’ phone as revealed by Ms. Garcia’s comment upon entering the bathroom; ➢ she indicated that during the verbal feud Ms. Francis vigorously asked Ms. Wixom to back off and mind her business – as confirmed by Ms. Wixom and acknowledged by Ms. Francis herself; ➢ she claimed that the scuffle took place inside a bathroom stall – as stated by Ms. Brathwaite, Ms. Garcia and, to a lesser extent, Ms.

Wixom, and as can be inferred from the photograph of the bloodied stall [21] ; ➢ she testified that they were multiple persons inside the stall during the scuffle – a claim substantiated by Ms. Brathwaite’s testimony to the effect that “they all ended up in the stall” and, to some extent, by Ms. Garcia’s account that Ms. Wixom ended up in the stall with both the accused and Ms.

Francis; ➢ the accused indicated that she sustained a cut between her thumb and her index while grabbing the object by the blade to disarm one of her assailants – this cut was observed by Constable Étienne and evidenced by photographs taken at the police station [22] ; ➢ the accused mentioned that she frantically swung the object in all directions at her assailants – an assertion that finds some support in the fact that none of the witnesses testified seeing the object, in addition to both Ms. Francis and Ms.

Wixom being initially unaware that they had been stabbed and sustaining injuries in different areas of their body; ➢ the accused stated she was only wearing a dress during the altercation having left her coat at the coat check – she was in fact described as wearing a dress by some of the witnesses, including Constable Étienne. [ 122 ] These features of the accused’s testimony lend support to her claim that Ms. Francis displayed animosity towards her, became unduly confrontational to the point of even brushing off her own friends, and played a key

part in provoking the physical altercation. [ 123 ] Also, I am left unsure as to whether the accused actually punched Ms. Francis in the manner described by Crown witnesses. The theory of an unprovoked assault does not seem to fit with the evidence and certainly not with my findings regarding Ms. Francis’ state of the mind at the time – that of a person who was refusing to leave the bathroom and dismissed her friends to handle things on her own – when, in fact, there was no reason to handle anything. [ 124 ] I find it incoherent that the accused, who willingly followed Ms. Francis to the bathroom and played no

part in instigating the verbal feud, would all of a sudden unilaterally assault her. It must be kept in mind that Ms. Garcia had already confirmed that she had Ms. Francis’ phone in her purse. The issue had been settled. [ 125 ] The portions of the accused’s testimony that I do accept also point to the fight having moved inside the last stall of the bathroom, as evidenced by the bloodshed, and having definitely involved more than two persons. They also suggest that the accused did sustain a cut as a result of holding on to a sharp object.

[ 126 ] In the absence of forensic evidence, I cannot conclude that the cut between her thumb and index amounts to a defensive wound. Based on common sense, however, it can be reasonably inferred that it was caused by the blade of the knife and not the handle. [ 127 ] This does not exclude the possibility that the accused cut herself while swinging the object at her assailants and stabbing Ms. Francis and Ms. Wixom. However, it tends to weigh more in favour of the accused’s claim that she sustained the wound while disarming one of her assailants by pulling on to the blade.

Also, the fact that the accused was only wearing a dress makes it far less plausible that she would have been able to conceal a knife. [ 128 ] As mentioned earlier, my doubt stems from parts of the accused’s testimony that I do accept combined with weaknesses in the evidence provided by Crown witnesses, which can be identified as follows. [ 129 ] I do not seriously doubt the fact that Ms. Francis was under the false impression that she had lost her phone. However, that Ms. Francis pinpointed the accused as being potentially responsible for such loss makes little sense. [ 130 ] Ms.

Francis initially stated that she did not know why she asked the accused to come to the bathroom. It is only later in her testimony that she conceded that it was because she thought that the accused had stolen her phone. [ 131 ] Yet, Ms. Francis was unable to provide grounds for her suspicion. In fact, there was no rational reason to single the accused out of hundreds of people in the club at the time, unless it was an opportunity or a pretext to confront her out of acrimony. [ 132 ] After all, Ms. Francis had motive to dislike the accused because of her relationship with Mr. Nesfield.

She even took the time to show photographs of the accused to all of her friends, including as recently as two weeks prior to the events. [ 133 ] Clearly, Ms. Francis was not indifferent to the fact that the accused was in a relationship with her former boyfriend and that they had a child together. This is the only logical reason for approaching the accused at the club and asking her to come to the bathroom. [ 134 ] Although relatively minor, there were some discrepancies between Crown witnesses in relation to the cell phone issue. Ms. Francis claimed that she asked her four friends to look for her phone. Only Ms.

Wixom confirmed having been asked to do so. Ms. Brathwaite and Ms. Garcia made no such reference. It is safe to assume that if she had been asked to look for Ms. Francis’ phone, Ms. Garcia would have handed it over to her much before to the bathroom incident. [ 135 ] More importantly, the fact that three of Ms. Francis’ friends arrived almost simultaneously in the bathroom while she was arguing with the accused is particularly odd. There is no evidence of a prior agreement between them to meet in the bathroom at a specific time of the evening or under given circumstances. Also, let us recall that Ms.

Francis was not accompanied by her friends when she approached the accused to ask her to come to the bathroom. [ 136 ] Coincidentally, however, all three of her friends went to the bathroom separately at around the same time to look for Ms. Francis or, as in the case of Ms. Brathwaite, to make sure she would not be alone in the bathroom. As the saying goes: “too much coincidence is no coincidence”. [ 137 ] Furthermore, it can be inferred that Ms. Brathwaite, Ms. Garcia, and Ms. Wixom, were not physically together when they decided to head to the bathroom. Ms. Brathwaite and Ms. Garcia, unlike Ms.

Wixom, were not scanning the dance floor in search of Ms. Francis’ phone. Ms. Brathwaite headed to the bathroom at the sight of Ms. Francis going there on her own while Ms. Garcia made her way to the bathroom because she had lost sight of her. This makes their quasi-simultaneous meeting at the bathroom, with no other customers present at the time, even more peculiar and further unlikely to be the product of pure coincidence. [ 138 ] As mentioned previously, Crown witnesses provided diverging accounts of what happened in the bathroom.

In addition, there are contradictions between what was said by some witnesses at trial and their prior statement [23] . Hence, both external and internal inconsistencies affect the quality of the narrative of Crown witnesses. [ 139 ] I noted the following external inconsistencies.

[ 140 ] Ms. Wixom testified that she got to the bathroom first and that Ms. Brathwaite and Ms. Garcia followed next. However, Ms. Brathwaite was adamant that she was the first of Ms. Francis’ friends to reach the bathroom and witness the verbal argument. [ 141 ] On one hand, Ms. Francis stated that Ms. Wixom and Ms. Garcia attempted to break up the fight. On the other hand, Ms. Wixom testified that Ms. Brathwaite and Ms. Garcia did not get involved in the altercation. Yet, Ms. Brathwaite indicated that she and Ms. Garcia sought to separate the girls, going as far as stating “we were all trying to separate them”.

Conversely, Ms. Garcia denied that she and Ms. Brathwaite jumped into the fight. [ 142 ] Ms. Francis did not specify where in the bathroom the fight occurred. Ms. Wixom referred to the crux of the action taking place near a bathroom stall. Ms. Brathwaite stated that at some point everybody was inside the last stall while Ms. Garcia mentioned that only Ms. Francis, Ms. Wixom and the accused ended up in the stall. [ 143 ] Some internal inconsistencies are also worth highlighting. [ 144 ] Ms.

Francis’ account at trial is somewhat inconsistent with her written statement [24] drafted several hours after the events took place. [ 145 ] In her statement, contrary to what she advanced at trial, Ms. Francis wrote that she went to the bathroom to meet up with her friends and saw the baby mother of her ex-boyfriend there. That’s when she confronted her about the loss of her phone. [ 146 ] Called upon to explain this inconsistency, Ms. Francis essentially indicated that she was not in her right mind when she wrote the statement having been stabbed and hospitalized.

She added that some things came back to her mind two years after the events and was now correcting her statement. [ 147 ] In and of itself, this inconsistency is relatively benign considering that the accused herself confirmed that Ms. Francis first approached her near the bar and not in the bathroom. However, it is indicative of concerns with her reliability, especially viewed in the context of her testimony as a whole. [ 148 ] More significantly, Ms. Francis acknowledged having written in her prior statement that the accused did not threaten her.

Also, nowhere did she write in her statement that she asked her friends to look for her phone, that Ms. Wixom came in the bathroom or, more importantly, that the accused punched her. [ 149 ] While I am sensitive to the circumstances surrounding the taking of her statement and the fact that she was asked few and very general questions, omitting to mention what allegedly triggered the altercation raises some concerns as to the accuracy of Ms. Francis’ account at trial in relation to this specific sequence. [ 150 ] Ms. Wixom also contradicted herself. In chief, she stated that Ms. Brathwaite and Ms.

Garcia went in to break up the fight and that she went in after. During cross-examination, she nonetheless declared that Ms. Brathwaite and Ms. Garcia did not get involved in the altercation in any way. Yet, in her prior statement [25] she wrote that she and her two other friends tried to separate Ms. Francis and the accused. [ 151 ] Also, when questioned by counsel for the accused, Ms. Wixom claimed that she was not inside the stall but rather stood in the corner by the stall.

However, while interrogated by Crown counsel, she had mentioned that she did not know how “they ended up in the stall”, referring to Kiera and herself. [ 152 ] As well, Ms. Garcia’s account at trial is somewhat undermined by her prior written statement [26] . At trial, Ms. Garcia clearly denied any involvement in the altercation. In contrast, in her statement taken at the club, she wrote that she entered the fray along with Ms. Brathwaite. Likewise, she wrote in her statement that she had gone to the bathroom because she needed to and not because she was specifically looking for Ms. Francis.

[ 153 ] Unlike her friends, Ms. Brathwaite’s testimony was not contradicted by a prior statement.

Although her account very much lacked details, she was pretty straightforward about the fact that “everybody ended up in the last stall”. [ 154 ] Overall, the presence of both external and internal inconsistencies, amongst other weaknesses, shakes my confidence in what version of the Crown evidence to accept. [ 155 ] This, coupled with the portions of the testimony of the accused I do accept, prevents me from resolving the conflicting evidence in relation to what precisely happened in the last stall of the bathroom. [ 156 ] The fact that the accused’s post-offence conduct, as pointed out by Crown counsel, appears at first glance to be inconsistent with a non-culpable act does not offset my doubt.

It is only one piece of the jigsaw and cannot be examined in isolation. [ 157 ] While I do recognize that Ms. Francis and Ms. Wixom have suffered a traumatic experience, I am unable to conclude based on the totality of the evidence that the Crown has met its burden to negative at least one of the pre-conditions to self-defence beyond reasonable doubt. [ 158 ] Consequently, the accused must be acquitted on all counts. __________________________________ DAVID SIMON, J.C.Q. M e Annabelle Sheppard Counsel for the prosecution M e Marion Burelle Attorney for the accused Trial dates: November 12, 13, 29, 2018.