R. v. McLean-Campbell, 2019 ONCJ 99

ONTARIO COURT OF JUSTICE CITATION: R. v. McLean-Campbell , 2019 ONCJ 99 DATE: 2019 01 09 COURT FILE No.: Brampton 3111 998 17 13773 BETWEEN: HER MAJESTY THE QUEEN — AND — TIFFANY MCLEAN-CAMPBELL Before Justice G.P. Renwick Heard on 07, 08, 09 January 2019 Reasons for Judgment released on 09 January 2019 H. Rim.................................................................................................... counsel for the Crown M.

Johal......................................... counsel for the defendant Tiffany McLean-Campbell REASONS FOR JUDGMENT RENWICK J.: INTRODUCTION [ 1 ] At the conclusion of this trial, the defendant essentially conceded that many issues had been established and the evidence established her guilt of several counts. The defendant admitted to damaging the bedroom door of Sandra Anderson, her mother. The defendant admitted to committing an assault by pushing her mother.

Further, the defendant admitted having assaulted her sister, Roechelle Larmond, and driving dangerously by reversing her car while Constable Chabab was trying to talk to her, and by side-swiping his parked police vehicle, causing him to fear for his safety and to jump onto the trunk of the cruiser. [ 2 ] The defendant specifically denies having left the scene of that motor vehicle collision without giving her name and address for the purpose of escaping from any civil or criminal liability. [ 3 ] As well, both parties have invited me to dismiss count 7 (escape custody).

On the basis of the joint submission, which I accept, there is an acquittal of the defendant on count 7. [ 4 ] As well, it should be noted that the prosecutor, Mr. Rim, fairly conceded that the evidence established that the home was not owned by the complainant, and as such, he could not rely upon the defendant’s concession of having damaged a bedroom door to prove the mischief alleged in count 1. Rather, the prosecutor relied upon the contested evidence that Ms.

McLean-Campbell damaged her mother’s lamp in the course of their physical struggle. [ 5 ] For the moment, the only issues I need to decide are whether or not it is proven beyond a reasonable doubt that the defendant struck Ms. Anderson with a mug, that she damaged a lamp owned by Ms. Anderson, and if she left the driveway of her mother’s residence, after damaging the police car, to escape civil or criminal liability. GENERAL LEGAL PRINCIPLES [1] [ 6 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable

doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trialunless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof nevershifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that theprosecution has proven any element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonabledoubt about the damage to the lamp, or that Ms.

Anderson was struck with a mug, or that the defendant fled in her car to escape civil orcriminal liability, she will be acquitted of these charges. [7] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logicallyderives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet thecriminal standard, proof to an absolute certainty is inapplicable and unrealistic.

The Supreme Court of Canada has cautioned that there isno mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance ofprobabilities.[2] If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence I mustconvict her since this demonstrates that I am satisfied of her guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have areasonable doubt and an acquittal must follow. [8] This case involves conflicting evidence and credibility assessments.

In assessing witness credibility and reliability I have takeninto account the general capacity of the witness to make their observations, to remember what they perceived, and their ability toaccurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether ornot the witness was sincere, candid, biased, reticent, and/or evasive.

A trier of fact is entitled to accept some, none, or all of what awitness says while testifying. [9] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in thewitness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence inthe case and not on an isolated basis.

This is true for any inconsistencies and whether these are inconsequential or significant to the case.If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [10] The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses.

However,confirmatory evidence in particular need not directly implicate the defendant or confirm the prosecution’s theory in every respect.Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account. [11] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the

article written by Paciocco J.A.entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31.Justice Paciocco breaks down the W.(D.) principles into 5 propositions: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred; (ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidenceis true, there is a reasonable doubt and the defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that isgiven credit proves the defendant’s guilt beyond a reasonable doubt. [12] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specificpieces of the evidence.

Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailednotes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest,and their ability to observe, recall, and communicate. [13] I do not propose to recapitulate all of the evidence received during this trial.

Suffice it to note that I have used ample and manyopportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digitalrecordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case and I will only discussparts of the evidence where it serves to underscore my findings. THE EVIDENCE AND FINDINGS OF FACT [14] Overall, I had some difficulty accepting the entirety of Ms. Anderson’s evidence.

Although she generally had a good recall,possessed a pleasant demeanor, seemed to discuss facts, rather than inferences or feelings, and she was balanced and flattering whendiscussing her daughter’s business strengths, her evidence was somewhat disjointed in relation to what occurred and in what sequence. Ihave a great deal of difficulty accepting how the physical altercation began because of the presentation of her account, the implausibilityof how she described the start of the argument that managed to the physical attack, and the confusion about whether there was damage to

the bathroom door, as initially described by her, or simply damage to her bedroom door, or damage to both doors. [ 15 ] This causes me to have a reasonable doubt about whether or not the defendant threw a mug 15-18,’ which she claimed had hit her on her forehead. This specific injury was not noted by the officer who was called to corroborate her injuries, nor was there any recording of the injury either photographically, or by medical report, or otherwise. Accordingly, I am not satisfied to the necessary degree that the defendant threw the mug and struck Ms.

Anderson with it, before the mug broke on the floor. [ 16 ] With respect to the lamp, I accept Ms. Anderson’s account that her daughter hit her several times with the lamp on her head. This account was entirely consistent throughout her evidence. In fact, when it was suggested in cross-examination that she was not hit with the lamp, Ms. Anderson responded by volunteering that she had the broken lamp to prove it. This evidence was not challenged, except for the somewhat hallow denial by the defendant that she had never hit her mother with the lamp.

As well, there was some small corroboration that the lamp had been involved in the physical altercation because Roechelle Larmond testified that when she brought the officer upstairs, the lamp was on the floor. [ 17 ] Like Ms. Anderson’s, I could not accept all of what the defendant said during her testimony. Some of her evidence was simply fantastic and completely unbelievable. As I expressed during the submissions, I had great difficulty accepting that the defendant calmly stopped her car after she had just side-swiped the officer’s car, she got out to look at the damage, and then she left.

This evidence did not sound truthful when it was given, it defies credulity, and it was contradicted by her sister’s observations from the upstairs window and Constable Chabab’s evidence that she departed the scene without stopping. [ 18 ] I say this in full knowledge that Roechelle Larmond’s evidence was contradicted in terms of which side Constable Chabab approached the defendant’s car, and whether or not the car’s driver door was ever opened, but I find that Ms. Larmond was simply mistaken on these points.

For instance, it would have been easy to assume the officer was on the passenger side of the vehicle if Ms. Larmond was not concentrating on the fact that the vehicle was parked facing the home. [ 19 ] I also found it incredible that the defendant apparently kicked on the bedroom door but did not expect to cause damage or that the door would have opened. Her apparent surprise is not plausible. Her reason for kicking the door is not believed.

She was obviously enraged by having been ejected from her mom’s room in the course of a very heated argument, even possibly by force, as she claimed, and I do not accept that the defendant was simply concerned with her mother’s state, and she merely kicked on the door to try to open it. My

interpretation of the facts is supported by the defendant’s admission that she threw down the bookshelf and she continued to pursue her mother even after they had been physically separated by the elderly house guest. [ 20 ] Nonetheless, there were parts of the defendant’s evidence, when the defendant was quite believable: her account of the start of the argument and the physical confrontation is completely believable and I accept it.

The defendant was always candid about having assaulted her mother and her sister by pushing them, although she may have down-played the assault on her mother, she readily admitted having thrown over the bookcase, and having crashed into the police car and leaving. [ 21 ] In the end, I reject the defendant’s evidence that she left to get her inhaler and anxiety medication for the following reasons: i. Constable Chabab was never questioned on this point. The only question that was asked in cross-examination went towards his knowledge of her state of mind at the time she left. He was unaware. I accept this evidence.

There was nothing apparently said by the defendant to the officer that provided him any clue where she was going or why. This officer was completely believable in his evidence, he was prepared to admit that he was wrong about seeing the car being put into reverse, and I accept that the defendant was not calmly explaining her need to leave and he simply permitted her to go after seeing debris and hearing “that’s her, that’s her;” ii. I do not believe the explanation that the physical confrontation did not cause the defendant’s asthma attack, but her asthma attack started when she was leaving; and iii.

When the defendant left the bedroom, she passed the officer and said “I’m not doing this.” Then she claimed in her evidence in chief that she got to the car and there she explained to the officer that she needed her inhaler. Her professed statement that she did not want to do “this” was more likely the reason she departed than the claim of respiratory distress. [ 22 ] In the end, I reject the defendant’s evidence on why she left as untrue. I have no doubt in my mind that her knowledge of her role in the assaults and damage within her mother’s room were the reasons she initially left the house. When Ms.

McLean-Campbell hit the police car, she was aware of it and she chose to leave. Her evidence that she said “seriously?” is believable. I accept that she said this to herself. I accept that she was aware that things had just become even worse than she may have initially thought and that is why she did not stop, and offer her name or address to Constable Chabab. CONCLUSION [ 23 ] I have considered all of the evidence and submissions. I have made credibility findings based on the evidence as a whole. There are parts of the evidence where I have a reasonable doubt: how the mug became broken is one such area.

However, on the issue of whether or not Ms. Anderson’s lamp was damaged and why the defendant fled after striking the parked police car are areas where the evidence I accept satisfies me and the defendant’s evidence was rejected by me as untrue. Neither Ms. McLean-Campbell’s evidence, nor any other evidence on these two issues have left me with any reasonable doubt about the damage to the lamp and the defendant’s intention to avoid being arrested for the assaults and the damage she knew she had caused.

[ 24 ] On this basis, I find Tiffany McLean-Campbell guilty of count 1, count 2, count 4, count 5, and count 6 and not guilty of counts 3 and 7. Released: 09 January 2019 Justice G. Paul Renwick