Charges: Assault Causing Bodily Harm (2x)
The client, G.F., and his co-accused, F.B., were each charged with two counts of assault causing bodily harm.
It was alleged that the client and his co-accused, together with several other friends, were standing on the sidewalk arguing amongst themselves in Toronto's entertainment district as bars in that area were closing and patrons were filling the streets. It was alleged that a group of young men walked past the client and his co-accused at which time a fight started between the client and his co-accused and this group of young men. Two of these young men sustained bodily injuries and were left unconscious on the sidewalk. The client and his co-accused were located by the police a short while later in an alley. The police were directed to the alley by an unknown witness. The client and his co-accused were immediately arrested following which their blood-stained clothing was seized by the police as evidence. The police did not have any of the Crown witnesses complete any type of identification process on the day of the alleged offences or soon thereafter. As expected, by the time of the trial, the memories of all of the witnesses had faded.
The only issue during the trial was identification. The strongest evidence of identification was put forward by the two victims rather than their friends, probably because their friends were being a little more honest.
The two victims, however, tried to stand their ground on the issue of identification. I undertook a vigorous cross-examination of both victims. The first victim eventually conceded that if he had run into my client in a casual setting a couple of days before the trial, he would not have recognized my client as being the person who had assaulted him several months earlier. He conceded that he was assisted in identifying my client by the fact that my client was in court standing trial. This is commonly referred to as "in dock" identification and is considered to be unreliable and relatively worthless as identification evidence. The second victim was more difficult to manage. Interestingly enough, however, when I attempted to put the same question to the second victim regarding whether or not he would be able to recognize my client if he had run into him in a casual setting a couple of days prior to the trial, he immediately began to answer before I completed my question. This was a tip-off that perhaps the two victims, who were brothers, and their friends had spoken in the hallway during breaks in the trial.
After two days of trial, the Crown conceded that there was no reasonable prospect of obtaining a conviction against either my client or his co-accused. The charges were therefore dismissed.
This case provides an excellent example of how a skilled and experienced cross-examiner can get the better of even tough witnesses. As already mentioned, the two victims were brothers. They had several friends in court to support their testimony and they would have liked nothing better than to see the persons they believed caused their injuries to be convicted.
It was also of assistance that I had had my client take photographs of his back soon after the alleged offences depicting what he claimed were marks left by the buckle on a belt that was wielded by one of the victims during the fight. I was able to get the victim in question to admit that he had removed his belt during the fight, however, he claimed that this was in self-defence. This victim also claimed that he could not remember whether or not he made contact with anyone while wielding the belt. Probably a convenient loss of memory.