SUPREME COURT OF Nova Scotia
Citation: R. v. Marriott, 2022 NSSC 53
Date: 20220218
Docket: CRH 510476
Registry: Halifax
Between:
Her Majesty the Queen
v.
Brian James Marriott
GARDINER HEARING DECISION
| Judge: |
The Honourable Justice Jamie Campbell |
| Heard: |
February 9, 2022, in Halifax, Nova Scotia |
| Counsel: |
Rick Woodburn and Scott Morrison, for the Crown Nathan Gorham, for the Defence of Brian Marriott
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By the Court (Orally):
[1] Brian James Marriott has pleaded guilty to aggravated assault arising from an incident at the Central Nova Scotia Correctional Facility in Burnside on December 2, 2019. Two trials were held in 2021 for 13 others: R. v. Ladelpha, 2021 NSSC 324 and R. v. Mitton, 2021 NSSC 325.
[2] Of the 13 people who participated in the trials related to this incident, 12 were found guilty of aggravated assault and one was found guilty of obstruction. While Mr. Marriott pleaded guilty and has admitted to the essential elements of the offence of aggravated assault as set out in an Agreed Statement of Facts, he does not agree with how the Crown has characterized the circumstances of his involvement in the commission of the offence. That is relevant to sentencing.
[3] Mr. Gorham on behalf of Mr. Marriott has indicated that Mr. Marriott does not dispute the findings contained in the previous decisions related to the incident. He does not dispute that the inmates involved in the assault on Stephen Anderson were acting as part of a plan. He does dispute the Crown’s assertion that Mr. Marriott was the leader or a leader in the creation of, and the putting into effect of, the plan.
[4] This hearing proceeded under Section 724(3) of the Criminal Code. That is referred to as a Gardiner hearing. In that process where there is conflicting evidence about factors going to the gravity of the offence the Crown must prove the aggravating factors beyond a reasonable doubt. Crown and defence counsel agreed that transcripts and recordings of the two previous trials could be admitted in evidence, even though Mr. Marriott was not a party. The exhibits from those trials would also be admitted in this hearing. Those included DNA reports, a blood spatter report, multiple books of photographs, video surveillance footage, and an audio recording of a phone call made by Mr. Marriott from the Central Nova Scotia Correctional Facility on December 2, 2019, before the assault on Stephen Anderson.
Bouncing
[5] Some evidence was provided in both trials about the practice of “bouncing”. Sometimes inmates want to get another inmate out of their living environment because they consider the person to be unacceptable. Those people might be sexual offenders or people who have ongoing disputes with those already in the facility.
[6] The person can just be asked to leave. They can be threatened. Or they might just be assaulted on arrival.
[7] There was no direct evidence at either trial, or in this matter, that Stephen Anderson was assaulted as part of an effort to have him assigned to another part of the facility. There was no evidence of any motive for the assault.
Assault on Stephen Anderson
[8] Stephen Anderson was admitted to North 3 on December 2, 2019. He entered the dayroom at 7:24 pm. He was assigned to Cell 8.
[9] At around 7:28 pm Jacob Lilly and Brian James Marriott were on the telephones in the dayroom. That was about 4 minutes after Stephen Anderson arrived. Mr. Marriott’s telephone conversation was recorded. He spoke words toward Jacob Lilly, who was sitting near him. What he said was to the effect of “You go figure that out all right now”, and “Get 4 or 5 guys.” The words were spoken by Mr. Marriott and even if this were a trial those words would be admissible against him.
[10] When those words were spoken, Jacob Lilly told the person to whom he was speaking on the phone that something was going on and that he would call back. The timing suggests that Mr. Lilly’s actions were in response to Mr. Marriott’s request. And the timing of the words spoken to Mr. Lilly suggest that they may be related to the arrival of Stephen Anderson.
[11] Mr. Marriott directed Mr. Lilly to go get 4 or 5 guys to deal with something or take care of something. That “something” might have related to an assault, but it equally might have related to a plan to intimidate Mr. Anderson, or might have had nothing whatsoever to do with Stephen Anderson.
[12] Mr. Lilly left quickly. He went around the dayroom. He spoke to some inmates and motioned to others to come to Cell 28. Kaz Cox was the occupant of that cell, and he was already there with two others.
[13] Mr. Marriott ended his telephone call within one minute of that. He stopped at Wesley Hardiman’s cell. Mr. Marriott went to Cell 28 and was followed by Mr. Hardiman.
[14] Jacob Lilly waved to two others to come into the cell. By 7:44 pm there were 11 inmates gathered inside Cell 28. Brian James Marriott was among them. They were summoned there. They didn’t just arrive at random.
[15] There is no evidence regarding what they may have spoken about or if they spoke to each other at all. It is clear though, that 11 men were summoned to a very small space and were crowded inside. Their purpose may have been social. They may have been drinking contraband “brew”. It may be that they were not talking about Stephen Anderson at all. There is no evidence that Mr. Marriott said anything in that gathering. There is no evidence that he directed anyone to do anything. But they all arrived in that cell minutes after Jacob Lilly had apparently been directed by Mr. Marriott to get 4 or 5 guys, which happened minutes after the arrival of Stephen Anderson in the North 3 dayroom
[16] The group filed out of the cell at 7:46 pm. Where they went is significant. They did not simply disperse.
[17] Several of the inmates from Cell 28 moved to a group of tables close to the base of the stairs under which Cell 8 is located. That group included those who later made their way into Mr. Anderson’s cell.
[18] A smaller group of three, Mr. Cox, Mr. Fraser and Mr. Marriott went to the area around the phones across the dayroom from Cell 8. From that area they had a line of sight, under the stairs, to Cell 8. They were at the phones but from the video surveillance footage they did not appear to be speaking to anyone on those phones.
[19] Mr. Anderson went into his cell at 7:49 pm, about 3 minutes after the group left Cell 28 on the second level.
[20] As soon as Stephen Anderson entered the cell members of the group seated near to that cell stood up. Within seconds a group of 6 inmates were in Cell 8. They had all been in Cell 28 a few minutes before.
[21] The cell door was being closed by two others. About 10 seconds later another inmate went in. The assault on Stephen Anderson began immediately.
[22] Mr. Marriott, Mr. Cox and Mr. Fraser walked over to the cell from across the dayroom where they had been seated. They got up at the same time. They did not amble over. They did not approach in a way that would suggest that they were just interested in seeing what might have been going on. The three men walked over together, almost in step with each other, and close together. They arrived as a group of three. Without the benefit of the surveillance video, it would be difficult to describe their purposeful manner. They did not go to the cell to check out the commotion. They turned to face the arriving correctional officers. Mr. Marriott motioned for others to come over. Mr. Cox said that no one was getting in the cell.
[23] The movements of the individuals involved were not random. They were co-ordinated. Inmates filed into Anderson’s cell seconds after he got there. There does not appear to have been any verbal command. As soon as Mr. Anderson entered, one inmate got up and followed him. Others followed him. The assault began immediately. Within seconds two inmates manned the door and shut it. Again, there would not appear to have been any in the moment verbal coordination. Mr. Marriott, Mr. Fraser and Mr. Cox came across the dayroom as a group and took up a position before the correctional officers could get to the cell door. They were not just standing around.
[24] The inmates prevented the correctional officers from gaining access to Cell 8 by impeding their progress. Mr. Marriott was standing up to the correctional officers. He warned officers that they should not touch him. And he encouraged other inmates to join the group.
[25] Outside the cell Mr. Anderson could be heard moaning and the sounds of beating were reported by the correctional officers.
The Plan
[26] There was clearly a plan. And that plan was devised in Cell 28. Within 4 minutes of Stephen Anderson’s arrival B.J. Marriott gave direction to Jacob Lilly. That was followed by having the group of 11 men gather in cell 28 within 16 minutes. After the last man arrived, they left the cell in about 2 minutes. Three minutes after that, Stephen Anderson went into his cell and was assaulted seconds later. The only reasonable inference is that a plan was set out in Cell 28.
The Objective
[27] As was found in the two trials, the plan was to assault Stephen Anderson and to cause bodily harm. The evidence does not permit of any other inference. The coordinated actions in having several inmates quickly follow Stephen Anderson into his cell, having the door closed immediately and blocking access by the correctional officers, do not allow for a reasonable inference that the plan was simply to talk to Stephen Anderson. From the surveillance evidence the altercation began immediately upon entry. There was no time for a discussion that happened to go in the wrong direction. If the purpose had been to talk, there would be no need for it to have been done behind the closed door, no need for it to have involved so many people, and no need for the level of coordination required to keep the correctional officers from intervening. The plan had to have involved doing something that would cause Stephen Anderson to want to get out of the cell and something would cause correctional officers to intervene. That is not a discussion. Or a threat. As was previously found, it is not reasonable to infer that the intent of the plan was simply to cajole or intimidate Mr. Anderson, or to assault Mr. Anderson in a way that involved a use of force that did not extend to causing bodily harm. The infliction of bodily harm was the intended objective of the assault. Whether the purpose of that assault was to get him to ask to be reassigned, or for some other purpose, does not matter.
[28] A person can be found guilty of aggravated assault if they did not intend to wound, maim, disfigure, or endanger the life of another person. It is enough that there was an intent to cause bodily harm and the victim was wounded, maimed, disfigured, or had their life endangered. In this case, the finding is that there was an intent to cause bodily harm to Stephen Anderson. That was the plan. It was not to talk, cajole, intimidate, restrain, or commit a technical assault merely by touching him against his will.
[29] There is evidence that a weapon was used. There is no evidence about who used it or who knew about it.
The Inference About Leadership
[30] Whether Mr. Marriott played a leadership role in the plan to assault Mr. Anderson must be determined based on circumstantial evidence. There is no evidence from any person who said that B.J. Marriott was a leader in the development of the plan. To prove Mr. Marriott’s leadership role the evidence must not allow for any other reasonable inference. It may be more reasonable to infer that B.J. Marriott was involved as a leader in such a plan, but the question is whether it is unreasonable to infer something else.
[31] That “something else” cannot be conjured out of thin air. The existence of a fanciful alternate explanation does not permit a reasonable inference. Reason is based on evidence. And in this case, there are only two options. Either B.J. Marriott was a leader, or he was not. Based on the evidence, and not on what might have been or could have been evidence, is it open to reasonably infer that B.J. Marriott was not a leader in the plan to assault Stephen Anderson?
[32] The Crown seeks to establish Mr. Marriott’s leadership of the plan by pointing first to the comments he made to Jacob Lilly. Mr. Marriott appears at least, to have “got the ball rolling”. Once he spoke to Mr. Lilly, Mr. Lilly immediately went into action in getting inmates together in Cell 28. What Mr. Marriott said was to take care of something, and to get 4 or 5 guys together. Mr. Lilly succeeded in getting 11 guys together in Kaz Cox’s cell. In that sense, if Mr. Lilly were following Mr. Marriott’s instructions, he did not follow them exactly.
[33] The words spoken to Jacob Lilly do not convey what was intended to be done. They do not intimate violence. Taking care of something could mean almost anything. What happens afterward must be put together with those words to provide the full context. Mr. Anderson was assaulted. And what taking care of it meant might be inferred from what happened minutes later.
[34] There is a gap in the chain of events. Once the group was gathered, presumably at the behest of Mr. Marriott, there is no evidence of what was said or done. There is nothing to indicate whether Mr. Marriott put things in motion toward the eventual assault or whether others took over and proposed something quite different to whatever Mr. Marriott might have had in mind when he spoke to Mr. Lilly. There is nothing to indicate whether a proposal was made during the gathering that Mr. Marriott agreed to go along with for the sake of group solidarity. If Mr. Marriott indeed went into the gathering to propose a plan, there is nothing to indicate whether the plan that came out of the gathering was his. Mr. Marriott could have gone into Cell 28 with a plan to have 4 people confront Mr. Anderson but left the meeting having signed on to an altogether different plan.
[35] Inferences are drawn from evidence. There is no evidence about anything B.J. Marriott did or said in Cell 28. He may have got things started with the words to Jacob Lilly, and that may be inferred because he “called the meeting” and directed what happened. But it is not conjuring from the unknown to also infer that he did not take a leadership role. That alternate inference might have been harder to support if he had clearly taken a leadership role in putting the plan into effect or if the words spoken to Jacob Lilly had been more explicit.
[36] As things began to develop Mr. Marriott acted much like the others. He walked across the dayroom with Mr. Cox and Mr. Fraser. Like others he stood in the way of the correctional officers. Like others he spoke to them and told them that the inmates would not move. He encouraged others to join. He was not alone in that.
[37] Apart from the words spoken to Jacob Lilly, Mr. Marriott’s actions were not of a kind different from those of others who were involved such that they would allow for the inference that he was a leader of the group. And the words spoken to Mr. Lilly may permit the inference that Mr. Marriott was taking this on as his issue, but they may also be inferred to mean that what Mr. Marriott had in mind before going into Cell 28 was something of a less violent nature. The plan was developed in Cell 28 but that does not mean that the plan was one dictated by, proposed by, or led by B.J. Marriott.
Conclusion
[38] There was a plan. There is no reasonable inference other than that, the plan involved causing bodily harm to Stephen Anderson. The plan was to hurt him. The result was that he was wounded, and his life was endangered. That is aggravated assault. That is what Mr. Marriott has pleaded guilty to. It is not necessary to prove that the plan involved endangering the life of Stephen Anderson and no finding has been made in that regard.
[39] The wounds to Mr. Anderson indicate that a weapon was used. There was no evidence about who used any weapon or about which of the inmates knew that a weapon was to be used.
[40] B.J. Marriott was involved in the plan. It has not been proven beyond a reasonable doubt that he was the leader or a leader in the preparation or carrying out of the plan.
Campbell, J.