ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE XXXX
On February xx, 20xx, at XXXX, Ontario
XXXX Counsel for the Crown
T. Pain Counsel for Camero Silver
The Court (Orally):
Okay. I have my judgment in this matter. Given the relative brevity of the trial and the fact that the evidence and your submissions are very fresh in my mind, and the fact that it is twenty-five after four, I will endeavour to set out my reasons in fairly brief compass.
Camero Silver is charged with assaulting Craig Coghill on March 11, 2007. The Crown submits that the evidence of the complainant, Craig Coghill, should be accepted and that it has proved its case beyond a reasonable doubt. The defence position is that Craig Coghills evidence should be rejected and that Mr. Silvers evidence, that his contact with Mr. Coghill was the result of self-defence and/or accident, should be believed or at least raise a reasonable doubt. The prosecution bears the burden to prove guilt beyond a reasonable doubt. The Crown must prove each essential element of the offence charged beyond a reasonable doubt. Mr. Silver is presumed innocent and bears no burden to prove anything. After considering the whole of the evidence, if there is a reasonable doubt on any element of the offence charged, he must be found not guilty. The Supreme Court of Canada has said that the standard of proof beyond a reasonable doubt is higher than proof on a balance of probabilities but lower than proof to an absolute certainty. But the standard falls closer to absolute certainty than to proof on a balance of probabilities. Jurors are instructed that the burden is met when they are sure of the accused persons guilt and that if they are not sure of guilt, they must acquit. Put another way, proof of probable guilt is not enough. The trier of fact must be sure. This trial pits the word of one Crown witness, Mr. Coghill, against one defence witness, Mr. Silver. As the Supreme Court of Canada has recently reminded us in C.L.Y. and the Queen, 2008, S.C.C. 2 at paragraph 8, it is important to bear in mind that the rule of reasonable doubt applies to the issue of credibility. The standard of proof in a criminal trial must not be treated as a credibility contest or a simple question of whether I believe one sides witnesses or the other. To approach it that way risks misapplying the burden of proof and carries the danger of either shifting the burden towards the defendant or diluting the prosecutions burden. In the Queen and W.D., the Supreme Court of Canada recommended an instruction in which jurors are told that they must acquit if, first, they believe the accused persons evidence, or second, if the accused persons evidence leaves them with a reasonable doubt, even if they do not believe it. In addition, the court said that even if the defence evidence does not leave the jury with a reasonable doubt, they must still ask whether, on the basis of the evidence they accept, they are convinced beyond a reasonable doubt of the accused persons guilt. A trier of fact must evaluate each witness evidence in light of the whole of the evidence.
I turn now to the evidence at this trial and I will review it in the order I heard it.
First, the evidence of Craig Coghill: Mr. Coghill testified that after meeting on the internet in November 2006, he began staying at Mr. Silvers apartment for periods of time. In his words, they dated for about seven months. Their relationship was not very good and there were frequent arguments. In December 2006, Mr. Silver asked Mr. Coghill to leave his residence because things were not working out. Mr. Coghill did not want to leave, but did so reluctantly. He was upset and agrees that at that time he pushed Mr. Silver. They reconnected in February 2007, and eventually Mr. Coghill started spending nights, again, at Mr. Silvers apartment, but his primary residence was his mothers home. Mr. Silver was nice and helpful to Mr. Coghill. They continued to argue, however, and when they did, Mr. Silver would tell Mr. Coghill to go home but he would still stay. On March 11, 2007, Mr. Coghill and Mr. Silver were out for the evening. On the way home, after midnight, Mr. Coghill was on the phone with Mr. Silvers friend and Mr. Silver got upset, apparently thinking that Mr. Coghill was interested in the friend. They argued back at the apartment. At some point, Mr. Silver left. He returned three hours later, around three or four a.m. Mr. Coghill was on the couch, listening to his I-pod with his headphones. Mr. Silver wanted to go to bed but Mr. Coghill said he was not tired and wanted to listen to music on the couch. They argued over whether Mr. Coghill should turn down the music. At one point, the building security guard knocked on the door and asked them to keep the noise down. Mr. Silver agreed to do so. Mr. Coghill said Mr. Silver could have asked him to turn his music down, but instead, he ran or charged at him, and while yelling, tried to take away his I-pod. He grabbed his I-pod wire and Mr. Coghill got upset. Mr. Silver started pushing Mr. Coghill by the shoulders and Mr. Coghill pushed him back by the shoulders. Mr. Coghill disagreed that he started pushing Mr. Silver because he wouldnt give him back his I-pod wire. He did agree, however, that he pushed Mr. Silver and knocked his glasses off but only after he charged at him. They started fighting. According to Mr. Coghill, Mr. Silver threw him on the ground and then Mr. Coghill got up and pushed Mr. Silver against a wall. Mr. Coghill ran upstairs and tried to lock himself in the bathroom. He was scared and there was no other room in the loft-style apartment in which he could lock himself. Mr. Silver jammed his foot in the door and pushed it open, causing a towel rack to break and Mr. Coghill to start to fall to the ground. When he was about half-way to the ground, Mr. Silver punched Mr. Coghill in the nose. Mr. Coghill fell to the floor. Mr. Silver then punched him in the shoulder and kicked him once in the chest. At this point, Mr. Coghill kicked Mr. Silver towards the bathtub and Mr. Silver fell onto the ledge. Mr. Coghill ran downstairs; his nose was bleeding heavily. Once downstairs, Mr. Silver started arguing with Mr. Coghill again but he then left the residence. Mr. Coghill called his mother, who called the police. Mr. Coghill was taken to a hospital before his police interview. His nose was not broken but the bridge of his nose was crooked for a couple of weeks. Photographs, entered as exhibits, show the nose, as well as some scratching on Mr. Coghills neck. Mr. Coghill says this scratching was from when Mr. Silver tried to grab him at the top of the stairs. On cross-examination, defence counsel put portions of Mr. Coghills videotaped interview on March 11, 2007, to him. It is agreed that at no time in his statement to police did Mr. Coghill ever tell the officer that he tried to lock himself in the bathroom because he was scared of Mr. Silver. Mr. Coghill never mentioned being in the bathroom during his video statement. In addition, in his video statement, he described to the officer, with words and gestures, that Mr. Silver punched him in the nose while he, Mr. Coghill, was standing. In his evidence in-chief however, he testified that Mr. Silver punched him in the nose while he was sitting on the ground. On cross-examination, he testified that Mr. Silver punched him in the nose while he was in the course of falling to the ground and that Mr. Silver punched him a second time in the chest after he was on the ground. This was followed by a kick to the chest. Mr. Coghill agreed that he never told the police officer about a second punch and, as I have mentioned, he told the officer that the punch in the nose occurred while he was standing up. He testified that he didnt tell the officer about the second punch because he was scared and did not want to get Mr. Silver in any more trouble than he was already in. Mr. Coghill also acknowledged telling the police officer that he felt Mr. Silver was scared of him during the incident because he was stronger than Mr. Silver.
I turn now to the evidence of Camero Silver. Mr. Silver is a 44-year old marketing executive at Proctor and Gamble. He described his relationship with Mr. Coghill following their online meeting in the fall of 2006. It is unnecessary to review that portion of his evidence in detail here. Some time in early 2007, Mr. Silver and Mr. Coghill resumed contact after a hiatus. Over a period of weeks, it seems Mr. Coghill began moving more and more of his belongings into Mr. Silvers condominium and he also had his key. On Friday March 10th, Mr. Silver and Mr. Coghill went to an all-ages event where Mr. Coghill got into an altercation with another person and Mr. Silver had to separate them. The next day, Saturday, March 11th, they spent the day together and went to an establishment where they saw a show that ended at 11:30 p.m. Mr. Coghill wanted to go to a bar but Mr. Silver said No and they went back to Mr. Silvers residence. At home, Mr. Silver got a call from a friend. Mr. Coghill started taunting him, saying that Mr. Silver was lucky to have him and that no one would ever want Mr. Silver. According to Mr. Silver, Mr. Coghills behaviour became challenging so he went for a drive to remove himself from the situation. When he got home, Mr. Coghill was on the couch listening to music. His I-pod was plugged into the stereo and Mr. Coghill also had one earphone in his ear. Mr. Coghill refused to turn the music down and they argued back and forth and from upstairs to downstairs about this issue. Eventually security came to the door about some noise complaints. Mr. Silver apologized and said the noise would end. He went over to Mr. Coghill and pulled the I-pod wire, which he displayed in court, from the stereo, disconnecting it. He acknowledged he was upset because security had just come but he maintained that he was not angry. At this point, Mr. Coghill lunged at Mr. Silver, chest-butting him and slapping him. He was kicking and hitting Mr. Silver with increasing force. Mr. Silver told him to stop hitting him or he would swing back. At one point, he swung. His intention was to scare Mr. Coghill and to get him to stop hitting him. It was dark and Mr. Coghill had knocked his glasses to the floor. Mr. Silver said he must have misjudged the distance because he did hit Mr. Coghill, causing the injury to his nose. Mr. Silver disagreed with the suggestion that he lost his temper and struck out at Mr Coghill out of anger and then started fighting with him. He also disagreed that he wanted more than a friendship with Mr. Coghill and that is why he did not end his contact with him once and for all when he had the opportunity to do so over a number of months.
I will now set out my findings. In my assessment, Craig Coghill was not trying to mislead the court. He testified in a relatively straight-forward way with no obvious axe to grind. He did not attempt to exaggerate his account of the nights events and he readily acknowledged a number of suggestions by defence counsel about his own conduct in his relationship with Mr. Silver including on the night of the alleged offence. Nevertheless, I have some serious reservations about the reliability of Mr. Coghills account, given the inconsistencies between his testimony and his videotaped statement. In his testimony, the very core of the assault occurred in the bathroom. It started as he was trying to lock himself in because he was scared of Mr. Silver but Mr. Silver pushed the door open, causing the towel rack to break and Mr. Coghill to fall down. It was as he was falling, while he was half-way down that Mr. Silver punched him in the face. And then, while he was on the ground, Mr. Silver punched him again in the shoulder and kicked him in the chest. However, in his videotaped statement to the police taken March 11, 2007, Mr. Coghill made no mention of even entering the bathroom. He made no mention of the second punch. In addition, to the police officer, he said the punch in the nose occurred while he was standing up. And as I have mentioned earlier, in his evidence-in-chief, he said the punch occurred while he was sitting down and then on cross-examination, he said the punch took place while he was half-way down to the ground. Again, to the police, there was no mention of Mr. Silver trying to burst in the bathroom, the towel rack breaking, or Mr. Coghill being punched while falling to the ground. These inconsistencies are not trivial or peripheral; they are, in my view, significant. They go to the very heart of Mr. Coghills account and they cause me real concern about the reliability of his evidence.
I turn now to Mr. Silvers evidence. Briefly, Mr. Silver testified in a relatively straight-forward manner and his evidence was, in general terms, credible. I must say, however, that I am somewhat dubious of his account of his relationship with Mr. Coghill over those few months. Mr. Silver is obviously an intelligent and professional and responsible adult. Mr. Coghill is, by all accounts, a troubled teenager. I tend to agree with Crown counsel that if Mr. Silver really wanted to put his foot down and cease contact permanently, he had the means to do that but he didnt. I am left with the impression that he has attempted to portray his relationship with Mr. Coghill in a way that would paint him, i.e., Mr. Silver, in a more favourable light and in a way that is not entirely accurate. His apparent willingness to shade his evidence in this way affects my assessment of the credibility of his account of the nights events. It is also not lost on me that neither in his evidence, nor in defence submissions, was the scratch on the neck addressed. This was obviously not caused by a single punch in the nose. Having said that, on both versions of the events, there was pushing, shoving and grabbing.
In summary, I do not accept Mr. Silvers evidence as true but that is not the end of the analysis. As required by the Supreme Court of Canada, I must consider his evidence in the context of the totality of the trial evidence and ask whether the Crown has proved its case to the criminal standard. And when I look at Mr. Silvers testimony in the context of Mr. Coghills evidence and the serious reliability concerns I have about his account, I cannot be sure of where the truth lies in this case.
In conclusion, while on all the evidence I am left with some suspicion that Mr. Silver assaulted Mr. Prentice on March 11th, I am not sure. I have a reasonable doubt and Mr. Silver is entitled to the benefit of that doubt. I find him not guilty.