R. v. Hunnigham, 2013 MBPC 72

CITATION: R. v. Hunnigham , 2013 MBPC 72 Date: 20130822 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Himmelman, ) for the Crown ) and ) ) ) Omar Hunnigham ) J.

Gindin, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) orally August 22, 2013 ) Restriction on Publication : Pursuant to s. 539 of the Criminal Code , this decision is subject to an order restricting publication in any document or broadcast or transmission of any kind of any evidence taken at the preliminary inquiry before such time as either the accused is discharged or, if the accused is ordered to stand trial, the trial is ended. C. Devine P.J. [ 1 ] This is a stabbing case based to a great extent on circumstantial evidence.

The defence argues that there is insufficient evidence on which to commit the Accused to stand trial on a charge of aggravated assault. Omar Hunnigham was charged with aggravated assault in the wounding of Elroy Smith that took place at the Aura Nightclub in Winnipeg, Manitoba on October 30, 2011. The preliminary hearing took place yesterday, August 21, 2013.

At the conclusion of the hearing, counsel for the Accused argued against committal. [ 2 ] This is the decision with respect to committal. [ 3 ] Jurisdiction, identification and the date of the offence were agreed to for the purpose of the preliminary hearing. The Crown called three civilian witnesses including the complainant, Elroy Smith. The Crown also filed by consent a letter from a doctor in the Emergency Department where the complainant’s injuries were treated. Facts [ 4 ] The Accused and the victim Elroy Smith had some history.

Elroy Smith in his testimony said the two were not friends, and that this history predated the night’s events. On the night of October 29, 2011 the complainant went to the Aura Nightclub with his girlfriend Rhiannon Lynch, her roommate Rachelle Turenne and his friend Alrick Bonton. They arrived at the club just before midnight on October 29, at about the same time that the Accused Omar Hunnigham arrived with his friend Tovary, whose nickname was Gaza

Shabba. The complainant testified that Gaza Shabba was looking at him with a smile on his face and giving him dirty looks. The Accused went up the stairs of the club ahead of the complainant, with Gaza Shabba following behind him. They were the only three in the stairwell, when Omar said, “Money over Bitches” and a racial epithet. [ 5 ] The complainant believed this was intended to be heard by him. [ 6 ] Once inside, the complainant said he went to the bar to get a Dragon Stout beer for himself and a water for Rhiannon. The Accused was also at the bar.

The complainant said he should not be at that side of the club, so he went to the left side of the club, where he was standing with a friend. He said that the Accused walked through the club a couple of times. He said that the Accused went to the washroom and then came back and purposely stepped on his shoes. The complainant asked the Accused why he stepped on his shoes and then gave him a shove. The Accused shoved him back and then they started fighting, punching and hitting each other with bottles. They both had Dragon Stout bottles.

The complainant said they were punching and hitting each other with the bottles and at some point fell to the ground. His bottle fell to the ground and may have broken. This all occurred at the left side of the club. The fight was broken up by someone. [ 7 ] The complainant testified that he was not injured at that time. [ 8 ] This fight lasted very briefly, but then erupted again, this time on the dance floor. The complainant said he had the Accused in a headlock and they fell to the ground. Then they were running back and forth, to and from each other.

That fight was broken up as well. [ 9 ] The complainant was taken to the side of the room by a security person, when he noticed he was feeling warm on his right arm and saw that there was blood coming down his right arm from under his short-sleeved t-shirt and he felt blood coming down his back. Security took him to an office at the back of the club and he started throwing up.

His girlfriend Rhiannon came and called 911. [ 10 ] The complainant said he was stabbed either during the fight on the dance floor or when Omar and he were running to and from each other, but he said he did not run into something that Omar was holding in his hand. He said he was stabbed during the fight. He cannot say what he was stabbed with. He was not injured before that. He did not fight with anyone else that night. [ 11 ] Rachelle Turenne testified that there was a vibe in the club that night, like something bad was going to happen. She said that the complainant was standing next to a male nick-named Quban.

The Accused kept walking through their group, trying to instigate something. At one point when walking through, the Accused nudged the complainant with his shoulder. That resulted in words being exchanged. Then they started fighting and heading towards the dance floor. They were punching with closed fists and scrambling. The complainant had the Accused in a headlock, then the Accused put his hand into his right-hand coat pocket and grabbed something. After that he started punching the complainant four to five times, mostly in his torso, his stomach. The Accused was punching in an undercut motion, upwards.

Then the producer Chino and Security broke it up. Before that, the complainant did not have any injuries to him. The Accused left out the front door. Ms Turenne tried to follow, but Shabba stopped her. [ 12 ] Rhiannon Lynch, who was dating the complainant at the time, said that the complainant was standing next to somebody, the Accused had left and come back and then tried to get between the complainant and the male he was standing next to, so that their shoulders bumped together. Rhiannon testified that she guessed that the Accused nudged the complainant and they exchanged words. She could see them talking.

Their moods seemed aggressive. They started fighting. She could hear bottles breaking. She saw broken bottles on the floor. [ 13 ] This scuffle ended when it was broken up and then about a minute later the complainant and the Accused started fighting again, on the dance floor. The complainant had the Accused in a headlock and there was a scuffle, going back and forth. She could not see what the Accused was doing, other than trying to fight back. This fight was broken up. The complainant went to the back of the club.

The Accused went to the front. [ 14 ] Before this, the complainant had not been injured in any way. [ 15 ] Rhiannon Lynch went to the back of the club, where Security had taken the complainant, to see if he was okay. He said he was okay. He was breathing heavy. Then he held onto her. Security then moved him from there to a small room towards the kitchen. Once there, the complainant was vomiting uncontrollably, maybe five to six times. Rhiannon Lynch ripped open his shirt and saw blood. Security told her to drive him to the hospital, but she called 911.

She put pressure on the area where the complainant was bleeding. She saw two lacerations, one on the right side of his upper chest and the other lower down, on the left side. [ 16 ] The complainant and Rhiannon Lynch said that after this, the complainant was carried downstairs by Security, who accidentally dropped him on the stairs from a height of one foot on the way down. He was taken to the Health Sciences Centre by ambulance.

The complainant testified that he had five stab wounds: • one on the back of his neck; • one on the left side near his breast; • one on the right upper chest, close to the middle, then; • right upper chest, close to the side; and • one to the lower back. [ 17 ] A letter by Dr. Peters from the Emergency Department, filed as Exhibit 1, stated that the complainant alleged he was stabbed to his right front of chest, right back of neck and lower left back. His wounds were stapled for closure.

[18] A chest tube was put in place for a collapsed lung. [19] The complainant testified that he has scarring as a result. He receives injections every six weeks, most recently August 12, toget the scar removed. LAW A. The test for committal at the preliminary inquiry [20] Section 548(1) of the Criminal Code states: When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictableoffence in respect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused ontrial for the offence charged or any other indictable offence in respect of the same transaction [21] The interpretative guideline for the committal authority of preliminary court judges has been described as follows: • Credibility assessments and the weight to be assigned to evidence is for trial. The preliminary court judge must consider theCrown’s case in its best light – could the evidence, if believed, provide proof of the essential elements? • Any reasonable

interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved infavour of the Crown. Some evidence, even very small, must however exist, respecting all the elements of the offence. • The preliminary court judge must consider the cumulative effect of the evidence pointing towards culpability. It is an error toisolate one piece of inculpatory evidence that points to the accused’s guilt to the exclusion of the totality of the evidence. (R. v. Coke, 1996 CarswellOnt 696 at para. 9 (Ont.

C.J.), a decision of Justice Hill) [22] The question to be asked by the preliminary inquiry judge under s. 548(1) is whether or not there is any evidence upon which areasonable jury, properly instructed, can return a verdict of guilty. (United States of America v. Shephard, (SCC), [1977]2 S.C.R. 1067) [23] Where the Crown’s case is based entirely on direct evidence, and the Crown has presented direct evidence as to every elementof the offence charged, the judge’s task is complete. The Accused must be committed to stand trial.

That is because it is the jury’s job todecide if and to what extent the direct evidence is to be believed. (R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 at para. 22) [24] Chief Justice McLachlin went on to state in Arcuri, The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has notadvanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requiresthe judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should bebelieved . . . The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself wouldconclude the accused is guilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt. (at para. 23) (Emphasis added) [25] The Manitoba Court of Appeal added the further nuance to this analytical process in R. v. Eckstein, 2012 MBCA 96. The judgedoes not draw inferences from the circumstantial evidence.

Rather, the judge assesses the reasonableness of the inferences suggested bythe Crown. [26] As the Supreme Court of Canada directed in Arcuri, this is by undertaking a limited weighing of the evidence. [27] Justice Chartier stated it thus at paragraph 18 of Eckstein: A few points need to be made on certain distinctive evidentiary features which exist at the preliminary inquiry stage. At this stage, if theCrown's evidence is capable of belief, it is to be believed.

The preliminary inquiry judge is not to assess credibility or generally weighthe evidence, nor is the judge allowed to draw inferences from the circumstantial evidence. Rather, that judge is to assess thereasonableness of the Crown's suggested inferences. This requires a "limited weighing" of the whole of the Crown's evidence (see R. v.Arcuri, 2001 SCC 54 at paras. 29-30, [2001] 2 S.C.R. 828).

While the accused may disagree with those inferences or prefer otherinferences, such differences of opinion are not proper considerations at this stage of the proceedings. [28] Also, it is the inferences favourable to the Crown, not the defence, that are considered at the preliminary hearing stage. AsJustice Chartier went on to say in Eckstein, at paragraphs 18 and 21: Finally, when conducting this assessment, the preliminary inquiry judge must bear in mind that "where more than one inference can bedrawn from the evidence, only the inferences that favour the Crown are to be considered" (Sazant at para. 18).

The issue turns on whether there is, on each essential element of each offence, some admissible evidence capable of belief which, ifbelieved, could reasonably support the Crown's suggested inference. This is not a difficult threshold to meet.

B. The Elements of the Offence of Aggravated Assault [ 29 ] A person commits an assault when, without the consent of another person, he applies force intentionally to that person, directly or indirectly. A person commits an aggravated assault when the assault results in wounding the complainant. Wounding requires a breaking of the skin. The mens rea of the offence of aggravated assault requires an objective foresight of bodily harm.

Analysis [ 30 ] The defence argued that the evidence at the preliminary hearing was insufficient to allow a properly instructed jury to return a verdict of guilty on the charge of aggravated assault.

He argued that none of the witnesses could testify as to exactly what happened: • The complainant did not know at what point he was injured; • That he could not say who caused his injuries; • That he did not see a weapon, no weapon was seen; • No weapon was found; • There could not have been a knife, as everyone who went into that bar was searched; • That the complainant could not say if somehow he was injured by a bottle, that he could have run into the bottle as he and the Accused were running back and forth. [ 31 ] Therefore, the defence argued, there is not sufficient evidence to constitute proof beyond a reasonable doubt. [ 32 ] The defence is correct that there is no direct evidence that could constitute proof beyond a reasonable doubt. [ 33 ] But much of the Crown’s case is based on circumstantial evidence.

The question to ask when the evidence of the offence is circumstantial is different. The Crown may invite the Court to draw inferences from the evidence that does exist. Therefore, the preliminary judge’s task is to determine the reasonableness of the inferences, and, if they are reasonable, to determine if they can lead to the conclusion that there is sufficient evidence on each of the elements of the offence to put before a jury.

As Chief Justice McLachlin stated in Arcuri : The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence . Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed . . .

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw . [ 34 ] There is direct evidence of wounding, sufficient to send to a jury: • Evidence of the complainant and Rhiannon Lynch as to the complainant’s bleeding wounds; • The description of the wounds as stab wounds by the complainant; • The wounds described in the medical letter; • The nature of the treatment of those wounds: stapled for closure and a chest tube placed for a collapsed lung; • The fact the complainant was in hospital for four days. [ 35 ] The evidence of the assault that caused the wounding is what is circumstantial.

The Crown has invited the Court to infer that the Accused stabbed the complainant with a knife or some other bladed

article intentionally, with objective foresight that in so doing he would cause bodily harm, which are the other elements of the offence of aggravated assault. [ 36 ] Does the totality of the evidence reasonably support those inferences?

This is the evidence supporting those inferences: • There was a history between the Accused and the complainant, which both the complainant and Rachelle Tourenne testified to. • As they were entering the Aura Nightclub that night, the Accused and his friend Gaza Shabba essentially surrounded the complainant as they were going up the stairs, Gaza Shabba smiling and giving him a dirty look and the Accused stating a gang representation and a derogatory racial epithet. • The behaviour of the Accused was intended to intimidate or anger the complainant – walking past him and his group several times, walking between him and his group, and walking up to him and stepping on his shoes. • Getting involved in a fight with the complainant. • Just prior to stepping on the complainant’s shoes, the Accused had gone to the washroom or somewhere, and returned, this evidence from the complainant and Rhiannon Lynch. • During the latter part of the fight, when the complainant had the Accused in a headlock, Rachelle Tourenne saw the Accused reach into his right side coat pocket and grab something and then punch the complainant several times in the torso with an upward motion.

• There is evidence from Rhiannon Lynch that Aura does not always require that people walk through the scanner.

Rachelle Turenne said that when they arrived, the Accused and Gaza Shabba were already there, and so she could not say if they would have gone through the scanner or not. • The complainant did not fight with anyone except the Accused. • He was not injured before the fight with the Accused. • He was wounded right after the fight with the Accused. • There is no evidence of the complainant receiving wounds from anyone other than the Accused. • The Accused quickly left the club out the front door after the fight. • The complainant did not flee the club. • Right after the fight between the Accused and the complainant, the complainant was bleeding heavily from what later appeared to be stab wounds. • The location of some of the stab wounds were consistent with where Rachelle Turenne saw the Accused punching the complainant after he grabbed something out of his right pocket. • The wounds were closed with staples, not sutures. • The wounds resulted in a collapsed lung. • The nature, number, location and severity of the wounds are evidence that the Accused had the intent to assault the complainant. • Likewise, the location, severity, and number of the wounds are evidence that the accused had objective foresight that the assaults would result in bodily harm. [ 37 ] Based on this evidence, it is reasonable to infer that the Accused intentionally stabbed the complainant with a knife or a sharp, bladed object, and objectively knew that the stabs would cause the complainant bodily harm. [ 38 ] The defence invited the Court to make other inferences, such as wounding caused by the complainant accidentally running into a broken beer bottle or falling on broken glass during the struggle.

At the preliminary hearing juncture, however, the Court may only consider inferences in favour of the Crown. ( Arcuri, Eckstein, Sazant ) To quote Justice Chartier from Eckstein once again, paragraph 18 : While the accused may disagree with those inferences or prefer other inferences, such differences of opinion are not proper considerations at this stage of the proceedings. [ 39 ] I am satisfied that the Crown has tendered sufficient evidence, whether direct or circumstantial, in order to reasonably ground inferences of all the elements of the offence of aggravated assault. [ 40 ] Accordingly, I am ordering that Omar Hunnigham stand trial for the offence of aggravated assault by wounding Elroy Smith on October 30, 2011 in the City of Winnipeg, Province of Manitoba.

Original signed by Judge C. A. Devine P.J.