Assault R. v. Okolo | Cohen, Sabsay LLP

2011 CarswellOnt 13798

R. v. Okolo

Her Majesty the Queen v. Richard Okolo

Ontario Court of Justice

W. Bassel J.

Heard: July 14, 2011
Judgment: July 14, 2011
Docket: None given.

Counsel: Ms K. Erlick, for Crown

L. Sabsay, for Accused

Subject: Criminal; Evidence

Criminal law.

Evidence.

W. Bassel J.:

These are my reasons for judgement in the case involving R. v. Richard Okolo. Mr. Okolo is charged that on or about April 2nd, 2010 he committed an Assault on Jordan Burke, contrary to The Criminal Code. In a nutshell, the essence of the Crown's case is that in the early hours of April 2nd Okolo, who was a tenant in a multi residential building, heard a loud commotion coming from the next door apartment.
Okolo encountered the complainant who had exited that apartment and was at the elevator and that without justification or cause he assaulted her by pushing her hard into the elevator whereupon she sustained bruises and marks from the assault.
The Crown called the complainant as a witness and certain photographs and DVD surveillance tapes and a 911 DVD call were filed as part of the main action. The accused testified as did two character witnesses on his behalf and also the property manager of the building in question where this incident is alleged to have occurred.
Mr. Okolo denies the allegations made against him and while admitting that he has been disturbed a number of times earlier from excess noise from the adjoining apartment and while not disputing that he saw the complainant on this night in the hallways both on the upper floor and main floor later, he expressly denies ever touching her or assaulting in any way.
The determination as to whether the Crown has proven this charge beyond a reasonable doubt turns essentially on my assessment of the credibility of Ms. Burke and Mr. Okolo. They have both testified and provided significantly different accounts of the relevant facts which bear on this case. The Court need not accept either account as being truthful and whereas here with the exception of some surveillance videotaped evidence, this is to some degree a he said, she said situation and oft result then is that state of uncertainty which requires an acquittal driven by the fact that the Crown has failed to discharge the onus on it to prove the offence beyond a reasonable doubt.
We know that this is not to be a credibility contest wherein the judge simply decides who is more believable or which version of facts should prevail but it is important that I not just set out a boiler plate recantation of the governing principles but rather that the individuals involved in this trial and the public interest understand the legal principles that must and have been hopefully applied by me to the case.
In these reasons I propose to summarize briefly what I consider to be the relevant evidence bearing on certain issues at play here. And I will then and have instructed myself concerning the law relevant to the assessment of credibility and the continuing nature and obligation of the Crown's burden of proof. Following that I will set out the reasons for accepting or rejecting particular evidence and ultimately the conclusion as to whether the evidence that is accepted, whether it proves the accused guilt beyond a reasonable doubt.
So, I do not intend to repeat all of the evidence of Jordan Burke or Mr. Okolo or anybody else so, I will touch on some of it. Ms. Jordan Burke told us she was 19 years of age at the time of this incident, was working as a restaurant hostess downtown. She told us she is 5'-6'' tall and about 120 pounds. On the night in question she was visiting her friend Bronwyn Hope in Hope's apartment at 25 Oxley Street which we learned was next to the accused apartment.
She said that she had consumed three or four drinks that evening, she described being in a big argument with Bronwyn, that they had been yelling and fighting and that she was very upset and that she packed up to leave. She said that as she was approaching the elevator she heard a man, later identified as the accused from behind her, swearing at her, yelling at her, calling her a bitch and a ho, and that he was upset about all of the noise from the apartment.
She said that as she was at the elevator with her back to him he pushed her back and shoulders with some force and that she was propelled forward, that her right arm came into contact with the frame or door of the elevator and she fell to the ground and the doors closed and she was crying and hurting. She said she sustained bruises to her right arm and photographs were taken by her sister three days later. Exhibit 1 reflects the bruises she described.
She then described going down to the main floor, making some calls to her family and that Okolo came to her again, was right in her face, backing her into a metal frame in the lobby area and swore at her and at that stage or thereabouts both of them said they were going to be calling the police. She did not think he actually made contact with her but that possibly he touched her arm, downstairs I am talking about.
Ms. Burke was also shown the lobby surveillance video in court wherein we saw Mr. Okolo coming into the picture from the elevator, walk down the hall and then come back to the place where Ms. Burke said he was in her face and confronted her. That was marked as Exhibit 3.
The Crown played a police 911 call tape, which was admitted for the purpose of narrative and Ms. Burke identified her voice and described her tone as nervous, scared and she told us she was hysterical and crying. The building surveillance video Exhibit 3, reflects Ms. Burke in the main floor hallway and then as I mentioned Mr. Okolo exiting the elevator, walking down the hall towards the front door, waving his arms, he stopped, come back said Burke and Burke tells us that Okolo was yelling at her again.
Burke told us that after Okolo left her on the main floor that she called her mother and that her brother came and picked her up. As I indicated the 911 call was marked as Exhibit 4 and although not admitted for the truth of its contents, it does reflect Burke's demeanour and state of upset and crying close in proximity to the incident.
The evidence of Richard Okolo, his version of the critical parts of the encounter with Burke, as I indicated differ significantly with her evidence. He is 37 years of age, has no criminal record or indeed any criminal charges pending against him with the exception of this charge of course. He is a business person, he told us he is about 6'-4'' and weighs about 215 pounds.
With regard to this incident he told us he was sleeping in his apartment, number 711 and that sometime around 3:00 to 4:00 a.m. he heard loud voices, banging and thumping through the wall, which was coming from the next door apartment, 710 and that he got up. He described seeing a person on the adjoining balcony, and that she was trying to forcibly open the patio door to that apartment. He described the woman now known to him as Ms. Burke as crying and upset and that there was screaming and a great deal of commotion coming from inside the apartment after Burke ultimately went back in.
Okolo said that he took his cellular phone and that his aim was to go and knock on the door of this Apartment 710 but that before he could do so Burke had now come out of the apartment and that he exchanged words with her about all of the noise. He described a mutual exchange of unpleasantries. Okolo said that he told her that he was going to report to management. Okolo told us that after the verbal exchanges which he said lasted about 25 seconds that he went back into his apartment.
He told us that he did not see Burke go into the elevator, that he did not push her into the elevator, did not push her and did not assault her on the seventh floor or anywhere. He told us that he went back into his apartment, reflected on the situation and decided that having regard to the building location, being in an area where he described a lot of night partying and action taking place that there would no doubt be police out and about patrolling the area and he would go-outside to hail a police car and report the noise and confrontation with Burke, telling us that he felt it would be quicker to go out and look for the police than use his cell phone and call 911.
He told us he went downstairs to the front door to see if he could find a police car, carrying with him his cellular telephone and apartment keys. He said he did not go out and rather that he heard some nasty words coming from Burke from behind him and that it angered and upset him and that he approached her. He denies that he backed her into any metal frame or otherwise. He said that Burke was using a number of profanities against him and he told Burke that she was causing a disturbance and was probably a trespasser and that as I indicated earlier that he was going to call the police and report to building management.
He agreed that Burker had also told him that she was going to call the police as well. He referred to a number of complaints before to management to a Mr. Beach, the property manager of a noise from the Hope apartment and that it upset him. Okolo told us that when he returned to his apartment that there was this 911 call, he was put on hold the call was not completed he said that he then went to bed but later was called the police and he met with them in his building.
As I indicated Okolo categorically denies that he pushed, assaulted or in any way came into physical contact with the complainant. Okolo called a Mr. Abi Fagu (ph) a Toronto police officer as a character witness, Fagu told us that he knew Okolo from their days at York University, that they would see each other at the gymnasium where Fagu worked during 1996, 1997 time frame. His contact with Okolo stemmed back to Okolo coming to the gym but not in any meaningful outside contact.
And then Fagu told us about a chance encounter, he saw Okolo at a Greek function down on the Danforth in 2010, a festival and that their contact was for some 15 to 20 minutes, that Okolo told him of this accusation and asked him to testify as to his character. Fagu described Okolo as a gentle giant, sincere, quiet and that he would not expect him to assault a young woman.
When Ms. Erlick, the Crown showed him Exhibit 3, main floor surveillance video with Okolo in an agitated manner, Fagu told the Crown that he had never seen Okolo acting in that fashion at the gym. Okolo also called Beach, Alex Beach the property manager of that building and Beach told us that Okolo had requested the lobby and main floor surveillance video and Beach said that there had been some other footage which he had seen and which by reason of an error on his part was not retained.
Beach corrected himself after reviewing some email transmissions and he told us that his recollection was that when the woman left the elevator that she did not present with any signs of injury or distress. Beach said that his recollection was that the woman in the video at the relevant time period (Beach not being sure whether it was Burke or Hope) that she stood in the lobby area for some 15 to 20 minutes after Okolo left.
Okolo also called Mr. Asha, A-S-H-A as a character witness. Asha is 40 years of age and in the software business and knows Okolo for about 14 years and that they are friends and have business relationships. Asha testified that he believes Okolo's reputation to be that of an honest, trustworthy and calm person.
Now, the assessment of the credibility, given that Okolo denies that he assaulted the complainant and that at its highest by his own recount he was upset, angry and did engage in verbal exchanges but no more. I must and have instructed myself in accordance with those principles enunciated by Justice Cory in R. v. WD, I had it in my prepared version here, I do not intend to repeat all three steps or the references from the quotations from R. v. Lifchus, paragraph 30 of Justice Cory as to the necessary standard that has to be met. But it is part of my reasoning.
I do not intend to repeat the submissions of both Counsel but I have obviously considered them. In a nutshell, from Ms. Erlick's side she submits that it is not just a he said, she said. That there is other confirmatory evidence that bolsters the complainant's testimony and that notwithstanding certain inconsistencies in her testimony that in the main having regard to the dramatic events that unfolded that night that the complainant was endeavouring to be a truthful witness.
With regard to Mr. Sabsay, and again, I do not intend to go into it of great detail. Mr. Sabsay quite correctly reminds the Court that not only should there not be a credibility contest but that I could very well end up at the end of the day concluding that both versions might be reasonably true, in which case an acquittal must follow.
His submission is that Okolo testified in a clear, candid and consistent manner and should be believed and that there is no real dispute in the defence submission, that the fight and noise were emanating from next door in the early hours of the morning and that Burke was by her own words, upset and involved at an earlier stage with a full blown confrontation, including being out on the balcony and crying and distraught and packing up to leave.
And in addition to that submission Mr. Sabsay submits that even if I do not believe Okolo that I should be left in a state of reasonable doubt and that I should also be very concerned as to the credibility and reliability of the complainant's testimony in view of a number of what he submits are material inconsistencies in her testimony, and Mr. Sabsay referred me to the decision of R. v. GM of the Court of appeal.
I will just touch upon the Defence evidence first, not because there is any onus on the accused but obviously if I conclude that either step one or step two of R. v. WD are there the charge is not made out. So, briefly then with regard to Mr. Fagu, the police officer, character witness, I do not have any doubt about him coming to tell the truth. However, the weight that can be given to his testimony in so far as character evidence is minimal.
Minimal, because not only was his contact with Okolo restricted to workout periods in the gym but also that limited contact in what would by common sense be in a setting where people are focusing on working out and then leaving. That is one factor but additionally and more importantly he had virtually no contact with Okolo for quite a number of years, maybe running into him a couple of times except for this 15 or 20 minutes in the Greek Town Festival.
So, although in my view well intentioned, I ascribe very little weight to that evidence in terms of assessing the character and credibility of Mr. Okolo. As I say, I have no doubt that this witness is a truthful witness but it just does not have the traction by reason of the limited contact.
With regard to Beach, Mr. Beach, his evidence does not really advance the search for truth in this case. I am not saying that he was untruthful but in terms of telling us his recollections as to the demeanour of the woman as she left the elevator and was in the main hallway at the relevant time, in-Chief he told us that the complainant showed no apparent sign of injury or distress not crying. Whereas in Cross-Examination - go ahead, turn it off if you like Mr....
- MR. SABSAY: I am, thank you, Your Honour.
  
  COURT: Okay, whereas in Cross-Examination he acknowledged that the video he viewed was less than good in quality, he could not even tell if it was Hope or Burke, Ms. Hope or Ms. Burke. And he told us he could not see the woman talking or what she was wearing or whether she was injured or crying, that came out in Cross-Examination by the Crown. At its highest he said he did not see any blood or bruising. I got the sense that Beach's recollection of this whole incident was spotty and that he could not really throw any light on the demeanour and state of the woman we saw in the DVD during that hallway, lobby period.
With regard to Mr. Asha, his testimony as to his relationship with a certain company of which he spoke, the extent of his relations with Okolo was confusing. In one breath he is telling us that he was never a manager of a company called Mews Q (ph), a company in which Okolo was connected but maybe he would be so in the future and then in another breath when there was reference to the fact that his photograph was on the company's website he illuminated us with word that he was just now aware of that fact.
In describing Okolo as a calm person, he told the Crown he would not expect Okolo to get into a woman's face or follow her down into the lobby but Asha's justification for his friend was that "Everybody has his limits." Asha would have us accept that just because Okolo might be using forceful words and being vocal with his hands and in a woman's face, did not constitute going beyond an acceptable limit.
Although there was an order excluding witnesses Okolo and Asha did have some form of discussions out in the court hall prior to Asha testifying. And I sense that when confronted with this issue by the Crown, Asha attempted to downplay the extent of that discussion. When confronted by the Crown with the scenario involving Okolo's actions down on the main floor, in my view Asha just bobbed and weaved and he was not prepared to answer hard questions. Asha was there to say good for his friend irrespective of certain realities in my view.
With regard to the evidence of Okolo and again, I stress that like the evidence of any other witness it must be assessed against the background, the full mosaic of all the other evidence in the case with focus being always on the fact that there is no onus on the accused and the onus is always on the Crown. Mr. Okolo's evidence with regards to the guts of the issue struck me as being implausible.
I do not question that anyone would be upset and displeased with being woken up a number of times during the night due to noise coming from the next apartment. And indeed it would be normal to harbour displeasure with the persons occupying that apartment and making that racket. Where his evidence does not make sense is that he went to great pains to emphasize that he was upset but not angry this night.
Yet on his version of the events he and Burke having an ugly verbal exchange on the 7th floor hallway, he then says that he then went into his apartment and did not see her-enter the elevator. If according to him she is gone, he has re-entered his apartment, there is no logic to his conduct in going down to the main floor and reengaging with Burke several times, going very close to her, gesticulating and waiving his hands.
Whatever it was on the 7th floor according to him, no physical contact at all, the unpleasantries said and done, the noise has ended, it is over, does not stack up with his conduct. The fact that he goes down to the main floor very shortly after the fracas upstairs and acts the way he did as we all saw on the surveillance video does not ring true with his testimony when I believe he was downplaying the degree of his anger.
His explanation as to why he went down there is just not credible and does not make sense. Okolo would have us believe that the reason he went down there was for him to go out to find and hail a police car as he felt that this was a better way for him to get quick contact with the police.
Again, this explanation does not make sense for several reasons. If he was so intent on getting outside and hailing a police car it is illogical and unbelievable that he would go to the front area and then come right back and engage with Burke instead of following through with his avowed purpose. The submission that Burke called out in the main hall and that this explains Okolo's interactions [(with Burke in the hallway.)] fails to reconcile Okolo's assertion that he was down there purely and simply to go out and find and make a report to the police, an action he did not carry out.
I believe that Okolo was likely still functioning under a full head of steam and anger. Also, he told us that he had used his cellular phone earlier to call 911 when he was in his apartment, but that the line went dead.
45 He told Ms. Erlick that the reason he did not use his cell phone to complete this complaint was that he wanted to give a verbal person report and it would be quicker to find the police outside rather than calling 911, a remarkable statement.
Then he told us that he did not call back to 911, did not follow it up after the line went dead, that he did not in fact go outside to look for a police car, telling us rather remarkably that he figured that they would call him back because his number was locked into the 911 system. This testimony is bizarre. Not only do we see him double back to Burke on the main floor but by his own testimony he agreed that there was a heated argument, that he was gesturing with his hands and that he was according to him about three feet away from her.
I hope I made it clear, Okolo's evidence is not subjected to a higher degree of scrutiny than the Crown evidence and bearing in mind the burden -
- COURT REPORTER: A moment's indulgence, Your Honour.
  
  COURT: Yes. Ready? Okay, I will just go back a step. As I indicated, Okolo's evidence is not subject to a higher degree of scrutiny than the Crown evidence and I always have my eye on the ball but the burden rests with the Crown. Nonetheless it is my conclusion looking at Okolo's evidence against the full backdrop of all of the evidence that his evidence relating to the essential facts at issue here must be and is rejected.
On this night he was far angrier than he would have us believe and his testimony was completely implausible, I do not believe it nor am I left in reasonable doubt from it. Now, having rejected Okolo's evidence as I have does not however end this matter. This becomes extra important here because by having rejected the Defence evidence as I have, it is still on the shoulders of the Crown for the onus.
The rejection and disbelief of Defence evidence cannot provide an adverse inference to a finding of guilt beyond a reasonable doubt. The rejection by me cannot be a basis for supplying deficiencies. It cannot fill holes in the Crown's case. I must therefore having rejected this evidence ask whether all the evidence that I do accept, has the charge been made out beyond a reasonable doubt. And I have in considering the evidence of Ms. Burke which evidence is considered by me on the same level playing field as all the other evidence bear in mind the submissions by Mr. Sabsay including his directing me to the matters that were raised in the R. v. GM case, Court of Appeal that great care must be taken by me where there exists inconsistencies on material matters, where there exists the specter of carelessness with the truth.
Minor inconsistencies may be the hallmarks of truth, however major inconsistencies will tell against the credibility and reliability of one's testimony. There is no requirement that the complainant's evidence must be corroborated however, regard must be made to determine if there is supporting or confirmatory evidence. There are many ingredients that go into this process of evaluating credibility, in terms of what might be confirmatory and what might steer away from confirmation.
I take into account that Ms. Burke had consumed a considerable amount of alcohol that night, a factor that could impact on her recollection. I take into account that she had been in a very significant upheaval with her good friend in the apartment with yelling and screaming going on and Ms. Burke clearly becoming quite distraught, packing up and leaving the apartment in a very distressed state. I will be a little while yet Ms. O'Grady so I will still be a little while so, yes thank you. Now back to the judgement.
The distraught state of the complainant which we heard on the 911 tape, Exhibit 4, crying and upset just a couple of minutes after she said Okolo left is a factor which can be confirmatory as to the trauma she had just incurred. This proposition has been noted in a recent case of our Court of Appeal, R. v. JA, at page 121.
On the other hand I must also heed the fact that there might be some alternative explanations for her post event demeanour namely, as I mentioned we just heard that she had left a major emotional and traumatic event upstairs with her friend where we know she was crying and locked out and upset.
With regard to that submission that I should be wary of her evidence because of her decision to call her mother first, I agree with the submission by Ms. Erlick that the decision of this young woman, then 18 years of age to first call her mother instead of the police that in Defence view detracts from her credibility according to Defence but I embrace the submission by Ms. Erlick that does not I do not draw a negative inference because of that decision.
The Defence submission with regard to drawing an adverse inference as to her credibility by reason of the fact that Burke was a law breaker, a scofflaw because she was drinking under age, to give effect to that submission I shudder to think would cut across a massive swath of students and others who have imbibed while under age, thus branding a huge number of the community as unworthy of belief. I do not think so.
I must also consider the photograph of the bruises on her upper right arm, Exhibit 1. Depicting a fairly large bruise area as potentially confirmatory of her evidence as to the pushing she described. On the other hand Okolo was not in the Hope apartment and we heard that a major fracas had taken place in there before Okolo engaged. And I have considered that the photo was not taken right away and was not taken by the police but by her sister some three days later. I do not understand why the police did not take photographs as part of the investigation and I certainly do not criticize Ms. Erlick for that, she was not involved in it but I just do not understand why they did not.
I also take into account the absence of any apparent motive on her part to make a false accusation against Okolo. There is no suggestion that there existed any pre-existing ill will as between the two of them. Yes, Okolo had made complaints about noise from Hope's apartment but they were complete strangers to each other except for their unpleasant exchanges on the 7th floor that night. I do not believe that this exchange, if that is all it was would be the catalyst for her calling the police and the laying of the charge.
There are other aspects of her testimony however, which I do have to consider. And at one point she said she had no recollection if Okolo had actually grabbed her, yet when confronted with her statement to the police which stated "He walked up to me from behind and grabbed the hood of my jacket." She told us she never knew that Okolo had actually grabbed her and she agreed that she had told the police otherwise.
In her testimony she said that the elevator rail did not cause injury to her shoulder, that in her statement she did not say her shoulder hit the elevator, yet in court she told us that her shoulder hit the frame. And in her statement she said her head hit against the rail at the interview.
In the judgement I prepared a number of pages with excerpts that I have taken out of the transcripts to illustrate some issues and concerns that I had. I think what I am going to do because of the time, is I am going to annex those pages, which start at page 12 and go through to the end of my judgment, I will provide a copy of that to Ms. Erlick, to Mr. Sabsay and to the Clerk and not read all of them.
I will just touch on a couple aspects of it which came out in Cross-Examination by Mr. Sabsay where he shows her the statement which included, when referring to a statement to the police, asking do you remember telling the police that he grabbed the hood of my jacket, shoved me into the elevator, my head hit against the rail of the elevator and referring to that statement she acknowledged she made it. She acknowledged she was trying to be truthful with the police that she was trying to be accurate when she was dealing with the police with a question. I do not think that is going to work that way, I am going to read it. I will refer to certain excerpts included in my judgement from the transcript.

Question, but you did not go head first, you said you went shoulder first into the elevator, right? Answer, my shoulder hit the frame so I actually ended up in the elevator with my body, it was two different hits of the elevator. Question, all right. Answer, there were two different points. Question, but is — was it the rail that caused the injury to your shoulder? Answer, no.

Question, I am going to show you your statement again. Answer, yep. Question, see if you remember telling the police this, after the part about he grabbed the hood of my jacket and shoved me into the elevator, my head hit against the rail of the elevator? Answer, H'mm. Question, and then the elevator closed. All right, you made that statement to the police? Answer, yes, I did. Question, were you trying to be truthful with the police when you said that? Answer, yes, I was.

Question, do you agree with me that you did not say my shoulder hit the elevator? Answer, yes. Question, I take it when you were talking to the police that you were trying to be as accurate as you could with them? Answer, yes. Question, I take it you were trying to be truthful with the police? Answer, yeah. Question, I am suggesting if your shoulder had hit the elevator you would have told the police, would you not? Answer, yes.

Question, all right. And you did not because you have no recollection now nor then of your shoulder ever hitting the elevator, do you? Answer, no, I remember hitting the elevator. Question, all right. This rail by the way, how many times have you been to this place, 25 Oxley? Answer, H'mm, not more than four.

Question, okay, what part of the elevator, now you have described the rail and I guess the rest of it is just a wall, is that right? Answer, and a mirror. Question, and a mirror? Answer, I believe a mirror, yeah. Question, okay. And you cannot tell us what part of this elevator your shoulder hit, can you? Answer, no, I do not know. Question, and you have no recollection of your head hitting this rail, is that not right? Even though that is what you told the police? Answer, my body hit the elevator. This is what I remember, yeah.
Now at another point Ms. Burke told us in-Chief that down on the main floor that Okolo had come very close to her and backed her into the metal frame in the hallway. I go back to the transcript.
"Question, okay, and if I understand your evidence today, Mr. Okolo never pushed you up against any door or door frame at all, did he? Answer, no. Question, no? Answer, the elevator one, yes. Mr. Sabsay, okay, I am sorry. Witness, the elevators, yes. Court, hold it, hold it. Witness, not in the lobby. Court, hold it, stop, stop. Let us start over again. One person at a time, you first.
Mr. Sabsay, thank you, Your Honour. Question, he did not push you against any doors in the lobby that I just showed you? Answer, no. Question, and even this backing into that space you have talked about, this space near the metal portion in the lobby? Answer, H'mm. Question, right. He never actually pushed you into that space, did he? Answer, no. Question, no, he never put both of hands on your shoulders and pushed you anywhere in the lobby, did he? Answer, no.
Question, all right and I am going to show you your statement to the police, you told us you made in the police station after these events? Answer, yes. Question, and right after you said how he, he being my client is calling the cops and that you were trespassing and I was a white ho. You said he pushed me with both hands on my shoulders into a metal door frame.
And you agree with me that you told that to the police officers on April 2nd, 2010? Answer, I must have. Question, right and that was not true was it? Answer, not that I can remember.
Court, pardon? Witness, like I said in the lobby I was very hysterical, a lot of things are unclear. I do remember the metal frame. Mr. Sabsay, question, well it was not just the metal frame, it was being pushed with both hands? Answer, H'mm. Question, into a metal door frame, right, that is what you told the police, right? Answer, yes. Question, and in fact we went on, you will agree with me, you said my upper spine hit against it? Answer, H'mm.
Question, you would agree with me that is not true by the way? Answer, H'mm. Question, that H'mm, we have to translate for that for the record? Answer, yes. Question, he obviously did not push you against anything causing your spine to hit? Answer, my spine did hit, I was against the metal frame. Question, but you told the police he actually pushed you into the frame? Answer, yes. Question, which never happened? Answer, no." Okay, end of the transcript.
Now, in-Chief she told us that Okolo had backed her into the frame area, that this does not appear from my examination to show on the surveillance video. I do recognize that this whole incident happened very quickly and it would be a totally unnerving and distressing experience for anyone, it would be a daunting task to recount chapter and verse each and every detailed step of what and how the incident unfolded.
Having said that however, there are a number of material inconsistencies as between what Ms. Burke told the police and what she told us in court. And one can be certainly sympathetic to the plight of a person who has experienced such a traumatic event and indeed I take into account the reality that a witness cannot be an exact lockstep at two different times when recounting the event.
The credibility assessment process is grounded and the examination and consideration of the internal consistencies of a witness' evidence and whether there are inconsistencies and careful consideration must be made of any explanation to determine whether those inconsistencies can be reasonably reconciled.
No adequate explanation has been presented in order to allay my concerns and to follow the words of the former Justice Galligan from The Ontario Court of Appeal, the trier of fact is then placed in the dilemma of trying to determine whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.
Now, Mr. Okolo, stand up. To be quite frank Mr. Okolo, not only do I suspect that you possibly assaulted Ms. Burke but I would say you probably did so. But having considered all of the evidence at the end of the day I am not satisfied beyond a reasonable doubt. I have gone on at some length with this judgement, part of the reason just to remind myself that our legal system is not based on credibility contests.
I think you were lying and fudging and that you were a lot angrier and a lot more involved than you would have us believe but the majesty of the law and our legal process does not start, thank goodness with credibility contests. So, you are entitled to the benefit of the doubt, something that I believe you probably did and hopefully you have learned something out of this.
You are a big man, sounds like you are a good member of the community but cool your jets. In any event I am left in a state of reasonable doubt and the charge is dismissed. I know you wanted me to consider the issue of a common law peace bond, Ms. Erlick and here is my question, is there any suggestion that there has been any further problem since this issue with Ms. Burke and Mr. Okolo?