IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
R. v. A.Y., 2016 NSPC 37
Date: June 2, 2016
Docket: 2930424, 2930426
Registry: Halifax
BETWEEN:
HER MAJESTY THE QUEEN
v.
Y.(A.)
RESTRICTION ON PUBLICATION: section 110 YCJA
TRIAL DECISION
BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK
HEARD: April 19, May 6, May 11, May 16 and May 20, 2016
DECISION: June 2, 2016
CHARGES: sections 344 and 267(a), Criminal Code
COUNSEL: John Nisbet, for the Crown
Claire McNeil, for Y.(A.)
By the Court:
Introduction
[1] On November 18, 2015 A.M. was on his way home from a party nearby when, in the course of an altercation with N.Y. and A.Y., his backpack was forcibly yanked off his back and he was hit in the face.
[2] A police investigation led to charges being laid jointly against N.Y. and A.Y. for robbery and assault with a weapon.
[3] The only evidence at this trial was led by the Crown. As was her right, A.Y. called no evidence and did not testify.
[4] The central issue in this trial is whether the Crown has proven beyond a reasonable doubt that A.Y. was a party to the alleged robbery and the assault.
A.M.’s Evidence about the Evening of November 18, 2015
[5] A.M. testified that on November 18 he left the apartment at [A] where he lived with his mother and went to a party at a friend’s home. He took his American Eagle camouflage-patterned backpack with him. It contained various items that included a blue plastic bong for smoking marijuana, a large hunting knife in a sheath, his prescription medication in a jar, and twenty grams of marijuana, individually packaged.
[6] A.M. saw A.Y. and N.Y. at the party. He knew them both. He and A.Y. had dated in the summer of 2015. By November 2015 they had been broken up for a couple of months. They spoke at the party. Their interaction was uneventful.
[7] The 10:30 p.m. curfew imposed by his mother looming, A.M. left the party for home. He had taken one of his prescription sleeping pills and was feeling the effects of having smoked marijuana at the party. As he described it, he was “under the influence” and “wasn’t in a perfect state of mind.”
[8] A.M. testified that on the way home, N.Y. and A.Y. yelled to him, using his name. A.M. stopped and N.Y. and A.Y. caught up with him. N.Y. wanted to know if A.M. would “front” him some marijuana. A.M. told him he didn’t want to do that; he “didn’t like giving things away for free.” A.M. testified that his response made N.Y. angry. According to A.M. a chain of events began to unspool.
[9] By now, A.M. and N.Y. were face-to-face. N.Y. warned A.M., “You can either front me or I can take your bag.” A.Y. was off to A.M.’s left, a couple of feet away. She had said nothing up to this point.
[10] N.Y. tore his shirt off and challenged A.M. to fight him. A.M. responded by pulling out his large hunting knife, unsheathing it and telling N.Y. to leave. He intended to scare N.Y. off. A.Y. spoke up at this point and said to A.M.: “Why don’t you fight him like a man? You’re bigger than him anyway.” A.M. put his knife away and still wearing his backpack, picked N.Y. up and got him on the ground. He straddled the smaller boy and started punching him.
[11] This is the point when A.Y. got involved in what was happening. She attacked A.M. from behind by grabbing his neck. In his testimony A.M. said he surmises A.Y. saw that he was going to win the fight with her brother. She pulled at A.M.’s neck and right shoulder. She also pulled on his backpack, using enough force to break one of the straps. A.M. says this is when N.Y. smashed a large rock into his face, a direct hit to his nose.
[12] A.M. testified that N.Y. used one hand to hit him with the rock and the other to grab his backpack.
[13] A.M. claimed the struggle for his backpack involved both N.Y. and A.Y. and that while they jointly tried to pull it off, he was dragging them along with him toward his apartment building. He says that all the while he was screaming for his mother, hoping she would hear him as he was only a couple of minutes away. He testified he had N.Y. and A.Y. hanging off him for about forty meters as he tried to make it home.
[14] It was A.M.’s evidence that when he was hit with the rock he saw A.Y. about 10 to 15 feet up the road with his backpack. He says she was running with the backpack on her back. A.M. took off after her. He watched A.Y. hand the bag off to N.Y., a faster runner. A.M. gave chase, and despite his injuries says he pursued them “in a big loop, probably a kilometer or two.”
[15] In court A.M. identified the backpack, bong, hunting knife and jar – all trial exhibits – as belonging to him. The backpack had been seized by police from a homeowner on the Hammonds Plains Road. The Hammonds Plains Road is in the same neighbourhood as, and not far from, A.M.’s home at [A]. The homeowner testified that he found the backpack outside his house on the evening of November 18 around 7 or 7:30 p.m. He recalled that he had just arrived home from work. He contacted police. The police located the bong, knife and jar inside the backpack. No marijuana or prescription pills were found.
[16] I examined the backpack (Exhibit 1) that A.M. identified in court as his backpack. Consistent with A.M.’s description of A.Y. pulling the backpack off his back, one of the straps is broken.
[17] A.M. was willing to accept the proposition put to him on cross-examination that A.Y. had been trying to get him off her brother when he had N.Y. down on the ground and was punching him. But he says, “I knew what their plan was from the start…” A.M. was firm in his belief that N.Y. and A.Y. had set out to rob him of the drugs they knew he would be carrying.
Inconsistencies in the Evidence
[18] I will say that while I am satisfied beyond a reasonable doubt that the backpack produced in evidence at the trial is A.M.’s backpack, the evidence about its discovery was confusing. The neighbourhood resident’s claim of having discovered it on his property between 7 and 7:30 p.m. on November 18 puts its discovery approximately three hours before the altercation between A.M., N.Y. and A.Y.. I don’t have any evidence from police witnesses who could have described their seizure of the backpack, but I can only conclude that the resident is mistaken about when he found it. However, in the end, I have concluded nothing turns on this. I am not left in any doubt about Exhibit 1 being A.M.’s backpack.
[19] A.M.’s description on cross-examination of where aspects of the events occurred was somewhat confusing and difficult to reconcile. He says he was on Bedford Hills Road, above where he lived on [A], when N.Y. and A.Y. yelled at him. They walked together until N.Y. “told me to take off my bag” when they stopped. N.Y. then took off his shirt in anticipation of a fight. This was near [B] and on A.M.’s way home. But, according to A.M., “the rest of the incident” happened opposite [C], even closer to his apartment building and within “thirty seconds” of A.M. reaching his back door if he had been able to keep going. Yet A.M. acknowledged that he had told police N.Y. threw the rock into the ditch at [B], which is located before [C] and was the location where N.Y. tore of his shirt to ready himself for a fight.
[20] There was some clarification of A.M.’s narrative when he was questioned on re-examination. A.M. indicated that when N.Y. and A.Y. yelled at him they were north of him on Bedford Hills Road. The robbery he alleges took place near [B] and “the rest of what happened” was, according to A.M., where he dragged N.Y. and A.Y. to while they were trying to get his backpack off. By that point, A.M. had been hit with the rock.
[21] A.M.’s descriptions of the fight with N.Y., getting hit with the rock and struggling along with A.Y. and N.Y. on his back also did not provide an entirely coherent, logical narrative. I am unable to reconcile how N.Y. would have been able to smash A.M. in the face with a rock at the same time as he was said to be hauling on the backpack. And A.M. described the events immediately after being hit with the rock inconsistently. In one version he saw A.Y. with the backpack and gave chase. In another version he had A.Y. and N.Y. still pulling on the backpack as he dragged them down the street.
[22] A.M. also said that after he pulled out his hunting knife, N.Y. pushed him and he then decided to fight him. A.M. did not mention a push in his narrative of the events when testifying in direct.
Other Evidence from the Night of November 18
[23] On November 18, 2015 L.M. was living at [C] on the third floor with her mother and sister. Sometime between 10:30 and 11 p.m. that night she began watching a movie. L.M. could hear yelling and went out on to the balcony of the apartment. From that vantage point L.M. could see “two guys and a girl” yelling and arguing. She observed the girl trying to pull a backpack off one of the males. She was pulling at it aggressively by the straps. The male with the backpack was yelling something she cannot clearly recall now. In direct examination L.M. said the male was yelling: “Help me, help me, they are trying to rob me, they are trying to hit me with a rock.” On cross-examination she was unsure what words had been used: either “he’s trying to steal my backpack” or “Don’t hit me with a rock.” I note that A.M. did not testify to saying these words.
[24] L.M. saw the other male lean over and pick something up. This was an object he held in his hand that was bigger than a baseball and dark in colour. She did not see anyone get hit with a rock. At this point both the girl and the other male had a grip on the backpack.
[25] Although her apartment building is in a treed area, L.M. testified that she could see what was happening. The trio was just below her balcony to the right. Despite the street lights, it was quite dark and L.M. acknowledged she could not identify who she was observing. She did not know at the time that A.M., whom she knew as a friend of a friend, was involved.
[26] L.M.’s evidence about who ran into the woods with the backpack was confusing. She first said in her direct examination that she saw one of the males run off through the woods with the backpack. She then said that she “thinks” it was the girl who ran through the woods with the backpack. She also said that because it was dark in the woods she could not really tell if the people running had anything with them. She saw the male she described as “the robbed guy” start to give chase, trip and fall. The two people running away were headed in the direction of the Hammonds Plains Road.
[27] L.M. was questioned about whether she recognized the girl. Because of an utterance made by A.Y. which I will be discussing, I find it unnecessary to review L.M.’s identification evidence. It suffered from various frailties in any event.
[28] Police were dispatched to the Bedford Hills Road area at 10:58 p.m. on November 18. Cst. Stuart McCulley, on general patrol, received the call while in Bedford and arrived in the area a minute or two later. He was waved down by A.M.’s mother who had A.M. in her car. Cst. McCulley observed that A.M. had blood coming out of his nose as well as a bloody lip. Noting that he had slurred speech and appeared confused, Cst. McCulley radio’d for paramedics who then took A.M. to the hospital. It was Cst. McCulley’s evidence that A.M. did not seem intoxicated to him. He did not ask A.M. about whether he had been using drugs or alcohol.
[29] Cst. McCulley confirmed that A.M. supplied details about where the rock he said he was hit with had been thrown. Armed with this information Cst. McCulley assisted the canine unit search a ditch near the intersection of [B] and Bedford Hills Road. A thorough search did not turn up a rock.
[30] Sgt. Kenneth Burton also responded to the dispatch. He recalls the radio dispatch at 11 p.m., an unknown trouble call, in the area of Hammonds Plains Road and Bedford Hills Road.
[31] Sgt. Burton knew A.Y. He was driving on the Hammonds Plains Road when he saw her walking alone toward the Bedford Highway. He estimated the time as 11:02 p.m. She kept walking while he turned around and pulled up beside her. He told her to “hold on for a minute.”
[32] A.Y. stopped. Sgt. Burton testified that she was cooperative and said she was heading back to Dartmouth where she was living. Sgt. Burton observed that she was wearing a backpack. This had to have been her backpack as the evidence establishes that the camouflage-patterned backpack A.M. identified as his was found by a resident of Hammonds Plains Road, leaning up against the foundation of his home.
A.Y.’s Courthouse Utterance
[33] Cst. McCulley was at the Spring Garden Road courthouse on April 19, the day scheduled for A.Y.’s trial. He knew A.Y. and saw her enter the building. She passed through the security checkpoint and joined her brother, N.Y., whom Cst. McCulley also recognized. Cst. McCulley was about five to ten feet away. A.Y. made a comment to her brother that Cst. McCulley overheard and made note of in his notebook. He recorded A.Y. as saying in a loud voice: “I don’t know why I am here. I didn’t do anything bad, all I did was pull the bag off him when he had the knife and I put it back in the bag.”
The Central Issue to be Determined
[34] The issue I have to address is whether, having considered the totality of the Crown’s evidence, I am left with a reasonable doubt about A.Y.’s role in what happened to A.M.
[35] As a starting point, I do not have any doubt that A.Y. was present on the evening of November 18 for a confrontation between her brother, N.Y., and A.M.. This is settled by the utterance she made at the courthouse in earshot of Cst. MacCully. A.Y.’s utterance is an acknowledgement that she was there. That narrows my focus to what she was doing and whether the Crown has established beyond a reasonable doubt that she was participating in robbing and assaulting A.M.
Assessing the Credibility and Reliability of A.M.’s Evidence
[36] As I noted earlier, there are aspects of A.M.’s narrative that are confusing and do not satisfy me as reliable. I did observe that he had an oddly cocky, self-assured manner of testifying. It was more pronounced when he testified on May 6 and less evident on May 11 when he returned to complete his evidence. However he appeared to be trying to answer all questions put to him and was not evasive or reticent. He did not attempt to put himself in a more favourable light, admitting for example that in November 2015 he had been a drug dealer and previously addicted to opiates.
[37] A.M. also showed a willingness to answer questions on cross-examination about anger management and an ADHD diagnosis. He was forthright about an anger problem which he says he dealt with through therapy. He testified that “Therapy really helped me.” He acknowledged taking medication to control the impulsivity and distractedness caused by ADHD. He could have been defensive and chippy about these questions but he wasn’t.
[38] A.M. also acknowledged being angry and emotional about his backpack being taken. And while he believes A.Y. was part of a plan to rob him, he did not have gratuitously negative things to say about her. He volunteered that after he had given up the chase and was sitting on the curb, A.Y. approached him to ask if he was alright.
[39] I do not accept everything A.M. said as credible or reliable. I am not convinced he has a flawless recall of everything he described. At times he seemed prone to some exaggeration, for example, when he said that because of being unable to satisfy his drug debts, there had been “26 people” out to kill him. I have difficulty accepting that he chased N.Y. and A.Y. for a kilometer or two while bleeding from a broken nose and suffering a concussion. His description of dragging them on his back for forty meters before this also seems implausible. It is reasonable to think that the effects of smoking marijuana at the party and taking his sleep medication and then sustaining a head injury would have caused some memory impairment or distortion. His testimony also created the impression that he embroidered some details.
Assessing Whether the Crown has Proven the Charges Beyond a Reasonable Doubt
[40] All that being said, I am satisfied of the following facts beyond a reasonable doubt:
• that N.Y. made an aggressive proposal for A.M. to front him some drugs;
• that A.M. pulled out a large hunting knife intending to scare N.Y. off;
• that, at A.Y.’s urging he put the knife away and proceeded to fight with N.Y.;
• that, with the advantages of height and weight, A.M. quickly got the best of N.Y. and began beating him up;
• that, witnessing this, A.Y. tried to pull A.M. off her brother by hauling on him and the backpack;
• that in the course of doing so, one of the backpack’s straps broke;
• that during the fight with A.M., N.Y. hit him in the face with a rock. I find that A.M.’s injuries - a broken and bleeding nose and significant dizziness that led to him being monitored in hospital for some hours - were caused, as he testified, by being smashed with a rock, not the fist of a smaller boy.
[41] What I am not satisfied of beyond a reasonable doubt is that A.Y. was a party to a robbery and an assault. I find there is a reasonable doubt about A.Y.’s involvement. She had just witnessed A.M. pull out a fearsome knife and then beat up her little brother. It is reasonable to infer, as A.M. himself did, that she was pulling on his backpack to get him off N.Y. who was on the ground and getting the worst of their fight. The backpack came off when the strap broke. I find it is wholly plausible that A.Y. did not want A.M. to regain possession of the backpack which contained a dangerous weapon he could resort to using. I am not satisfied beyond a reasonable doubt that A.Y. ran off with the backpack intending to steal it. She could just as well have been ensuring that A.M. would not get access to the knife. She could have reasonably inferred that A.M., who by his own admission was angry and riled up, might use it if he got his hands on it.
[42] There is nothing in the evidence from L.M. that contradicts the possibility that A.Y. was simply trying to prevent A.M. from hurting N.Y.. A.M.’s own perception that A.Y. was trying to help N.Y. rob him is not proof beyond a reasonable doubt of what was happening. And while A.M.’s evidence indicates that N.Y. got the backpack and took off with it, I find there is reasonable doubt about what A.Y. intended to happen. The evidence does not prove that A.Y. was trying to rob A.M. of his backpack. If A.Y. handed the backpack off to N.Y. as A.M. claims, this is consistent with her trying to ensure the large knife it contained was safely out of A.M.’s reach.
[43] And if ultimately there was a theft of A.M.’s backpack and some of its contents, there is no evidence that A.Y. was involved, either as a principal or a party. The evidence does not establish that A.Y. had any role in the disappearance from A.M.’s backpack of his medication and marijuana.
[44] The evidence does not establish that A.Y. was a party to N.Y. hitting A.M. in the face with a rock. Whether that could qualify as self-defence by N.Y. is not something I am required to decide. Whether he was justified or not, N.Y. committed the assault of A.M. without any involvement on A.Y.’s part. If N.Y. hit A.M. with the rock while A.Y. was pulling on the backpack - and I found the evidence somewhat confusing on this point – it does not prove that this was a joint enterprise. As I have indicated, the evidence does not prove that A.Y. was doing anything more than trying to intervene to prevent her brother being beaten up. This did not make her a party to N.Y. assaulting A.M. I am not satisfied beyond a reasonable doubt that A.Y. played any role in N.Y.’s use of the rock.
[45] The Crown concedes that section 21(2) of the Criminal Code is inapplicable in this case. There is no evidence that N.Y. and A.Y. had formed a common purpose to rob A.M. on the night of November 18. And if N.Y., having had his demand for drugs rejected by A.M., decided to rob him, I am not satisfied beyond a reasonable doubt that A.Y. played any role in assisting him.
Conclusion
[46] I find the Crown has failed to prove beyond a reasonable doubt that A.Y. is guilty, either as a principal or a party, of robbing or assaulting A.M. on November 18, 2015. Consequently I am acquitting her of both charges.