Between
Her Majesty the Queen, and
Ramesh Amritial Gaglani
[2006] O.J. No. 4960
2006 ONCJ 473
Court File No. 5096/04
Ontario Court of Justice
G.F. Hearn J.
Heard: December 6-7, 2005, March 20-21, June 8,
July 24, September 6, 27 and November 23, 2006.
Judgment: November 23, 2006.
(203 paras.)
Criminal law - Offences - Offences against person and reputation - Assault - Common or simple assault - Trial of the accused for assault - Accused owned a nursing home and was alleged to have assaulted one of the residents - Accused acquitted - Crown failed to prove beyond a reasonable doubt that the accused assaulted the complainant.
Criminal law - Evidence - Burden and standard of proof - Standard of proof - Beyond a reasonable doubt - Trial of the accused for assault - Accused owned a nursing home and was alleged to have assaulted one of the residents - Accused acquitted - Crown failed to prove beyond a reasonable doubt that the accused assaulted the complainant.
Trial of the accused Gaglani for assault - Gaglani owned a retirement home - Complainant, named Weber, was a 72-year old resident of the home in November 2004 - In that month he sustained injuries which occurred on a set of stairs in the home - Crown alleged that Gaglani pulled Weber down the stairs - This was based on the testimony of a witness named Craggs who saw the incident - Craggs claimed that Gaglani generally mistreated Weber - Gaglani claimed that Weber fell while on the stairs on his own - He also alleged that when the accident occurred he was walking down the steps in front of Weber - Gaglani claimed that after the fall he attempted to assist Weber - HELD: Gaglani acquitted - Scenario provided by Gaglani was capable of belief - Weber had a history of falling and a history of having his pants down around his ankles - His injuries were as consistent with falling down the stairs as being pushed - Evidence did not convince the court beyond a reasonable doubt that Gaglani assaulted Weber - Court heard two versions of what transpired - There was reasonable doubt that arose not because the court accepted one of the versions but because the court was not in a position to reject or accept outright either version - Acquittal resulted because the Crown failed to satisfy the onus required in a criminal charge.
Counsel:
Margaret Janzen for the Crown
Lorne Sabsay for the accused Ramesh Amritial Gaglani
G.F. HEARN J.:-
BACKGROUND:
1 Ramesh Gaglani at all relevant times was the owner of Bridgeport Terrace Gardens Retirement Home (referred to hereafter as "the Home") located in the City of Kitchener. Richard Weber was a 72-year old resident of that home in November of 2004. On November 14, 2004 Mr. Weber sustained injuries as a result of events which took place on a set of stairs situated within "the Home". The Crown alleges on that occasion Mr. Weber was in fact pulled down those stairs by Mr. Gaglani. Mr. Gaglani's position is that Mr. Weber actually fell while on the stairs on his own and at the time that occurred he was in fact walking down the stairs in front of Mr. Weber. Mr. Gaglani's position further is after that fall he attempted to assist Mr. Weber. The Crown alleges that Mr. Gaglani committed an assault on Mr. Weber. Mr. Gaglani denies that and has entered a plea of not guilty to a charge that on or about the 14th day of November, 2004 at the City of Kitchener he did commit an assault on Richard Weber.
2 The matter came before the court for trial initially on December 6, 2005 and was originally estimated to continue for a two-day period. The trial has in fact well exceeded that estimate and has continued over a course of eight days with the evidence and submissions finally being completed on September 27, 2006 at which time the matter was put over to today's date to allow the court an opportunity to review the evidence and submissions of counsel and for judgment.
ISSUES TO BE DETERMINED:
3 Both the Crown and the defence have called numerous witnesses on this matter. It is clear from the evidence presented and the submissions made that the real issues in this proceeding are credibility and reliability as it relates to the evidence of the Crown witnesses, George Craggs, Peter Soanes, the utterance made to Patricia Harrison by Mr. Weber and ruled to be admissible as part of the Crown's case and the evidence of Mr. Gaglani and other witnesses called on his behalf. The Crown's position is that the evidence of Mr. Craggs, Mr. Soanes, coupled with the utterances made by Mr. Weber to Patricia Harrison is credible and reliable evidence and firmly supports the Crown's submission that all elements of the charge have been proven beyond a reasonable doubt. The Crown asks the court to reject outright Mr. Gaglani's evidence and, further, in any event that such evidence of Mr. Gaglani and other defence evidence does not raise a reasonable doubt.
4 The defence position is that the Crown evidence is unreliable and fabricated, that Mr. Craggs and Mr. Soanes are witnesses whose evidence was motivated by ulterior motives and whose evidence is clearly suspect. Further, Mr. Sabsay on behalf of Mr. Gaglani submits that any utterances made by Mr. Weber to nursing personnel should be carefully reviewed and the court should find that the ultimate reliability of such utterances is lacking. In addition, defence counsel submits that Mr. Gaglani's testimony is credible and reliable and on the basis of his evidence alone he should be found not guilty. At the very least defence counsel submits that the evidence of the defence raises a reasonable doubt and Mr. Gaglani should ultimately be acquitted.
GENERAL PRINCIPLES OF LAW:
5 This of course is a criminal charge and as with all criminal charges the accused, in this case, Mr. Gaglani, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilty of Mr. Gaglani beyond a reasonable doubt rests upon the Crown and never shifts. Mr. Gaglani does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if after I consider all of the evidence I am satisfied the Crown has proven the case beyond a reasonable doubt. This standard is a formidable one and proof beyond a reasonable doubt is closer to absolute certainty rather than a balance of probabilities.
6 The phrase "beyond a reasonable doubt" is a term that forms a very important part of our criminal justice system. That requirement of proof beyond a reasonable doubt applies to each element or essential part of the offence charged. The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence where there are separate pieces of evidence that make up the Crown's case but to the total body of evidence upon which the Crown relies to prove guilt.
7 I remind myself that a reasonable doubt may arise:
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from the evidence; | ||
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as a result of a conflict in the evidence; or, | ||
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a lack of evidence. |
8 I further remind myself that it is my duty as a judge to consider the evidence carefully and dispassionately and without any trace of sympathy or prejudice for or against anyone involved in this proceeding. Then, after reflecting upon all of the evidence of each individual witness, I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence or none of the evidence given by that witness. Then, after considering the whole of the evidence presented in the case both by the Crown and the defence, I must reach a conclusion as to the guilt of Mr. Gaglani beyond a reasonable doubt or otherwise acquit him.
9 I also note that the object in assessing evidence in a criminal case is not to choose one witness over another. It is to determine whether the Crown on the whole of the evidence has proven Mr. Gaglani's guilt beyond a reasonable doubt. The ultimate question is not which side is telling the truth but rather on all of the evidence whether the case has been proven to the degree required.
10 In summary, it is incorrect to view the case on the basis of whether I believe Mr. Gaglani's evidence or the Crown's evidence and in particular the evidence of George Craggs and Peter Soanes. Approaching the evidence on the basis of an either/or proposition would exclude the possibility that without believing Mr. Gaglani's evidence one still has a reasonable doubt as to guilt.
11 I instruct myself on the following basis:
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If I believe the evidence raising a defence or negating an essential element of the offence I must acquit Mr. Gaglani. | ||
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If I do not believe the evidence raising a defence or negating an essential element of the offence but I am left in a reasonable doubt by it I must also acquit Mr. Gaglani. | ||
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Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence I must ask myself whether on the basis of the evidence I do accept that I am convinced beyond a reasonable doubt of Mr. Gaglani's guilt. |
OVERVIEW OF THE EVIDENCE:
12 Both the Crown and the defence have called numerous witnesses. Some of those witnesses were not physically present at "the Home" on November 14, 2004. Some witnesses had contact with Mr. Weber and/or Mr. Gaglani prior to that date and some after the events at "the Home" on November 14th. The witnesses can reasonably be classified into three categories.
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Those who were in "the Home" at or about the time of the incident; | ||
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Those who were involved with Mr. Weber and Mr. Gaglani immediately following the incident both at "the Home" and the hospital; and, | ||
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Those that had contact with both Mr. Weber, Mr. Gaglani and other witnesses prior to the events of November 14, 2004. |
13 There was, of course, some overlap in the evidence of various witnesses with respect to all categories.
14 There is no need to review the evidence of all the witnesses in detail but a general review of the evidence is appropriate and necessary. In addition to that evidence there has also been filed throughout the course of the trial a number of exhibits. Exhibit #1 is a binder containing numerous pictures which has been filed on consent and which photographs depict among other things the exterior and interior of "the Home" including photos of the subject stairwell. A number of those photos as well as other photos were referred to during the course of the evidence.
A. THE CASE FOR THE CROWN:
1) EVIDENCE OF GEORGE CRAGGS:
15 In November of 2004 Mr. Craggs was a 47-year old resident of the "the Home" and had been for approximately two months prior to that date, having arrived on or about September 15, 2004. He testified that he was disabled as a result of a diagnosis of "extreme panic disorder" and came from hospitalization to the "the Home" in September 2004. He had a room situated in the lower part of the residence as depicted in the photographs, which room was across the hall from Richard Weber's room and beside the room occupied by Peter Soanes. Mr. Craggs in his evidence referred to the location of his room as well as the location of the stairwell leading to the lower level from the main floor as depicted in photographs numbered 21 through 26 of Exhibit #1.
16 On November 14, 2004 Mr. Craggs was in his room watching a videotape when he paused the tape to go to the bathroom. At that point he testified he heard "a quite bit of noise" and a "lot of banging". He went out of his room and observed down the hall Mr. Gaglani's back and then saw Mr. Gaglani disappear back into the stairwell area. He started to walk down the hall and noted when he arrived at the stairwell area Mr. Weber lying on his back with Mr. Gaglani's hands around his ankles and observed what he testified was Mr. Gaglani pulling Mr. Weber down the stairs by his ankles. He observed Mr. Weber's shirt to be up under his arms and his pants down around his ankles. He described Mr. Weber as being "basically naked".
17 He testified he observed Mr. Gaglani pull Mr. Weber by his ankles down the second flight of stairs shown in the photographs and concluded that the noise he had heard was as a result of the problem Mr. Gaglani appeared to be having getting Mr. Weber down the stairs. He observed Mr. Gaglani pull Mr. Weber down the balance of the stairs and then to a corner in the hallway shown in photograph numbers 27 and 28.
18 Mr. Craggs described Mr. Weber as a "nice, quiet type of guy" with a "little bit of dementia". He described their relationship as good. He had noticed over a period of weeks leading up to the events of November 14, 2004 there had been a deterioration in Mr. Weber's physical and mental health and, as Mr. Craggs described it, Mr. Weber was "really going downhill fast".
19 Mr. Craggs testified that Mr. Weber would have difficulty understanding all of any conversation they might have. He suggested that Mr. Weber might understand about 70 percent of it but by the date of the incident he had deteriorated to the point where you "couldn't hold a conversation with him".
20 Mr. Craggs stated that prior to the incident Mr. Weber had occasion to fall down "quite a bit". He indicated that these actions on the part of Mr. Weber were apparently seen by the staff as an attention seeking manoeuvre. He in fact himself had observed Mr. Weber to fall down and be unsteady on his feet or standing with his "head against the wall" on occasion. He described the falls as being in all directions. He also gave evidence with respect to the filthy nature of Mr. Weber's clothing, the fact that it didn't fit and the fact that Mr. Weber was losing weight rapidly. Mr. Weber's pants would not fit properly and Mr. Craggs had put a "few more notches" in Mr. Weber's belt to assist him in keeping his pants up.
21 Mr. Craggs gave evidence with respect to the general relationship between Mr. Gaglani and Mr. Weber as he perceived it. Basically his position was that Mr. Weber was not treated as well as some of the other residents. He was fed less and appeared to be the recipient of a lack of patience, frustration and manhandling by Mr. Gaglani on a day-to-day basis. These actions made Mr. Craggs angry and he had expressed his concerns to Mr. Gaglani on two or three occasions. According to Mr. Craggs he had advised Mr. Gaglani "why keep him if he causes so much grief".
22 Mr. Craggs stated that on prior occasions when Mr. Weber had fallen Mr. Gaglani would grab him to get him up or leave him where he fell. He testified that on occasion Mr. Gaglani would be verbally abusive to Mr. Weber but was told by Mr. Gaglani that it was none of his business. Mr. Craggs told the court he had indicated to Mr. Gaglani that one of the days he would "go too far".
23 On November 14, 2004 after making the observations and travelling to the stairwell it appears Mr. Gaglani disappeared after dragging Mr. Weber into the hallway. Mr. Craggs indicated he asked Mr. Weber if he was all right and then Mr. Gaglani reappeared at the bottom of the stairs mumbling something. According to Mr. Craggs Mr. Gaglani had a "wild look in his eye". He told Mr. Gaglani he had gone too far this time but there was no response.
24 Mr. Craggs testified that he then went to the room of Peter Soanes with the intention of phoning 911. Mr. Soanes had just awakened and Mr. Craggs borrowed his portable phone and went to the doorway and made the call to 911. When he came out of the bedroom he testified that neither Mr. Weber nor Mr. Gaglani were in the hallway and he looked throughout the basement for Mr. Weber without success. He went outside for a "couple of puffs" of a cigarette. He was angry and came back in and at that time noticed Mr. Weber to be on his bed in his own room.
25 Mr. Craggs testified in cross-examination about his criminal record which dates back to 1975 and continues to 2002. The entries include convictions for break and enter as well as for public mischief, dangerous driving and assault with a weapon. He candidly admitted to Mr. Sabsay that he had his "doubts" about Mr. Gaglani from the beginning. He did not like his temper or the way he would "change on a dime". He denied that he had communicated to Mr. Gaglani "so this place is run by Pakis". He acknowledged that he had been "kind of upset" with Mr. Gaglani shortly before the incident when Mr. Gaglani had refused to drive him to enable him to get additional medication.
26 He testified when he heard the "noise" it was like a "thud". There had been no screaming or yelling, although Mr. Gaglani was mumbling loudly when he arrived. He testified that the door at the bottom of the stairwell was open but that he did not see who opened it. However, in an interview with the police shortly after the event he had indicated that Mr. Gaglani had opened it and in fact was holding it with his foot to allow Mr. Weber to be pulled through.
27 The relationship between Mr. Gaglani and Mr. Weber as perceived by Mr. Craggs was explored, as was his own relationship with Mr. Gaglani. He acknowledged having referred to Mr. Gaglani in a journal that he kept as "a Nazi" and a "rat" and stated that Mr. Gaglani never did "anything right for Mr. Weber". He was questioned at length by counsel for Mr. Gaglani with respect to his allegations of Mr. Weber being excessively medicated, fed less, confined to the basement area of the "the Home" and generally being treated differently than others by the staff, including Mr. Gaglani.
2) EVIDENCE OF PETER SOANES:
28 Mr. Soanes was also a resident of the "the Home" from February 2004 to the date of the incident. He had a room downstairs also across from Mr. Weber's room. He did not recall specific dates as to when he moved in as he self-described that he was "very bad with times and dates". He did not recall Mr. Weber's last name although he knew the individual across the hall as Richard. He also indicated there was another resident on the same floor named George.
29 When he moved into "the Home" he had a shattered knee and his meals were brought to him in his room. That continued after he had healed, although he would go upstairs for his meals once in a while. He identified Mr. Gaglani, his daughter and Andrea, the "cook and waitress" and Candy, the administrator" as employees of "the Home".
30 Mr. Soanes described Mr. Weber as having "healthy" days and "weak" days. On his weak days Mr. Weber was noted to have problems standing, conversing and was "confused if you will". Mr. Soanes had seen Mr. Weber fall on more than one occasion and he described that. He said when he observed that he would help Richard or some of the other residents such as "George" would help, as would the staff, in getting Mr. Weber up.
31 When asked by Ms. Janzen if he had ever seen Mr. Gaglani deal with Mr. Weber when he fell, he noted that he had and Mr. Gaglani's reaction apparently "varied from time to time". According to Mr. Soanes, Mr. Gaglani was "fed up with Richard's falling". So there were occasions when Mr. Gaglani would pick Mr. Weber up and yell at him and tell him to get his "act together and go downstairs". He noted Mr. Gaglani on those occasions to be yelling, swearing and having a temper. He also noted Mr. Gaglani to yell at Mr. Weber to "stop pretending, stop faking and take control". He also noted on occasion during these incidents that Mr. Gaglani would indicate to Mr. Weber to "get out of his sight, get downstairs" and on occasion Mr. Gaglani would swear using "a fuck or perhaps using Jesus Christ's name in vain, that type of thing".
32 He described Mr. Gaglani's actions in picking up Mr. Weber on occasion as abrupt and causing Richard to appear scared, worried and confused.
33 Mr. Soanes indicated he had spoken to Mr. Gaglani about Mr. Weber not belonging in "that type of home" as it was his view Mr. Weber needed "more nursing assistance, more special care". Mr. Gaglani responded to Mr. Soanes that Richard was just "putting it on to get attention". Mr. Soanes interestingly enough also indicated that Mr. Gaglani was advised by him that Mr. Soanes felt the medications were incorrect for Mr. Weber. Mr. Gaglani, in fact, did proceed in getting Mr. Weber medical help. Mr. Soanes also noted that Mr. Weber's falling appeared to be "getting worse".
34 Mr. Soanes described Mr. Weber as being "lonely" and as being "hungry quite often". He described his own meals as being better prepared and larger than Mr. Weber's. He spoke to Mr. Gaglani about this and according to Mr. Soanes, Mr. Gaglani's response was that Mr. Weber did not "deserve" larger portions as he was causing "too many problems". He also spoke to other staff and Andrea, in particular, made certain that Mr. Weber got more than he might have normally.
35 Mr. Soanes, in-chief also testified that he, Mr. Craggs and Mr. Weber were asked to go downstairs and "keep out of sight" when visitors came to look at the "the Home". This request apparently was made not only by Mr. Gaglani, but also other members of the staff. He testified this was the case as Mr. Gaglani was apparently concerned that Mr. Weber would "scare" possible residents.
36 Mr. Soanes testified that nearing the end of his stay at the residence he noted Mr. Gaglani to be yelling at Mr. Weber and that Mr. Weber seemed to spend a lot of time in his room. He also stated that he heard Mr. Gaglani yelling at other residents.
37 On November 14, 2004 Mr. Soanes was in his room when he heard what he described as "a lot of ruckus, yelling, banging - a tremendous amount". He described this noise as coming from outside his door and prior to that towards the end of the hall. He said it sounded like "anger, loud voices and banging against the walls". He testified that initially the loud voice was Mr. Gaglani's and then "closer to the end it was George". He described it as very loud, negative, mean, angry yelling. He stated he heard Mr. Craggs yelling something similar to "what the hell are you doing" and then there was a bang on his door. Mr. Craggs indicated to Mr. Soanes that he needed to use his telephone to call the police. Mr. Soanes testified that he went out to the hall after Mr. Craggs banged on his door, but just briefly and "saw nothing".
38 In cross-examination Mr. Soanes confirmed that Mr. Craggs had knocked loudly on his door, that he was lying on his bed at the time, but not sleeping. He stated that he and Mr. Craggs talked "a bit" before the phone was used and Mr. Craggs made the call. He stated that he could not recall whether the phone call was made from his room or whether Mr. Craggs took the phone into his own room. All he knew was that there was a discussion "leading up to the phone call" and then the phone call was made.
39 Mr. Soanes confirmed his history of difficulty with alcohol and drugs. He confirmed that he was not to have alcohol in his room, that he was responsible for keeping his own room "clean and tidy" and for bringing his own laundry to the staff and having it folded. Apparently this was "a special deal" which resulted in a lower rent for him.
40 He testified that on September 30th, 2004, he had been intoxicated in a public place and was charged and at that time Mr. Craggs was with him. He also confirmed that approximately three to four days before November 14, 2004 the police had attended at "the Home" and placed him in handcuffs. This apparently was not related to the intoxication charge, but to a separate incident. He also confirmed that the staff was not happy about that and that he had been spoken to about that issue by "Candy".
41 In cross-examination he stated that Mr. Weber used to "fall a lot" and that he would sometimes "dress inappropriately". He also confirmed that Mr. Weber would sometimes "drool in front of other residents" and would sometimes "say things that didn't make any sense". He also confirmed that Mr. Weber would on occasion "play it up" when he was falling and that his falling had been an ongoing issue.
42 In cross-examination notwithstanding what he had indicated in-chief with respect to Mr. Gaglani, he confirmed that in August of 2004 he had written a note to Mr. Gaglani where he referred to him as "continually caring and giving and respect shown to all". He confirmed that would have been true if he had said it was true, but he was effectively just "kissing butt". Notwithstanding that he did indicate at the time that Mr. Gaglani had been very kind towards him.
43 Mr. Soanes confirmed as well that in March of 2005 he had also written to Mr. Gaglani and although he had mentioned his temper in the letter, he also mentioned that Mr. Gaglani was "truly kind and friendly". He testified that at times Mr. Gaglani was, in fact, "very kind and generous towards me".
44 In cross-examination Mr. Soanes agreed that he spent a lot of time in his room, that some of the yelling that he heard on occasion he only heard and never saw the interaction and that he would not see Mr. Gaglani interact with Mr. Weber "all the time". He, in fact, agreed that it would be a small percentage of time that he actually saw Mr. Gaglani and Mr. Weber together.
45 With respect to the incident of November 14th he confirmed again in cross-examination that he had heard Mr. Gaglani yelling, but he was not certain if he was swearing or not. He indicated he heard a noise, a disturbance, something out of the ordinary and a "lot of commotion". He also stated, however, that he had never seen Mr. Gaglani do anything inappropriate to Mr. Weber on November 14th. He was also aware that Mr. Weber suffered "from some sort of form of dementia" and that he had seen "lots of evidence of that".
3) EVIDENCE OF ERIN MILLER, DR. MICHAEL KAM and PHILLIP LEBOLD:
46 During the course of the trial the Crown initiated a voir dire to determine the admissibility of certain utterances allegedly made by Mr. Weber to various medical personnel. These included utterances allegedly made to Erin Miller, the ambulance attendant who first attended at the scene, Dr. Michael Kam, the medical doctor in attendance at the Emergency Department at the Grand River Hospital where Mr. Weber had been transported to on November 14, 2004, and Phillip Lebold, a nurse, at the Grand River Hospital on duty on November 14, 2004 in the Emergency Department, all of whom had some contact with Mr. Weber.
47 After examinations of those witnesses the Crown abandoned its application to have various utterances admitted into evidence as principled exceptions to the hearsay rule. It is to be noted Mr. Weber had unfortunately passed away prior to trial from unrelated causes and was not available to give evidence at the trial. The Crown decided to only pursue utterances that had allegedly been made by Mr. Weber to Patricia Harrison, also a nurse at the Grand River Hospital in the Emergency Department.
48 Although the various utterances made to these particular witnesses, other than Patricia Harrison, are not before the court as admissible evidence their evidence otherwise was admitted following the voir dire. That evidence however is of minimal value, save and except as follows:
(a.) EVIDENCE OF ERIN MILLER:
49 Erin Miller was one of the ambulance attendants who attended at "the Home" in response to a 911 call on November 14, 2004. She was dispatched to "the Home" at 4:16 p.m. and arrived at "the Home" thereafter. The first contact she had with Mr. Weber was at 5:05 p.m. She had contact with Mr. Weber then transported him by ambulance to the Grand River Hospital at 5:14 p.m., arriving there at 5:30 p.m.
50 Ms. Miller described Mr. Weber on her first contact as being "pretty dishevelled", conscious, alert and oriented, expressing concerns about lower back pain. She also noted that there were several other people in the room with Mr. Weber at the time. Ms. Miller described the injuries she noted as a slight abrasion and contusion to the lower lumbar spine.
(b.) EVIDENCE OF DR. MICHAEL KAM:
51 Doctor Kam was in a similar situation as Ms. Miller in that it appeared originally the Crown was going to attempt to introduce utterances allegedly made by Mr. Weber to Dr. Kam but the Crown abandoned that particular application. His evidence otherwise would simply indicate that he had contact with Mr. Weber at the Emergency Department for the purposes of assessment at 6 p.m. on November 14, 2004. He noted an abrasion on the left scalp of Mr. Weber which appeared to be dated (likely an injury from a prior fall as referred to by Mr. Craggs in his evidence) and also noted abrasions to the back area. Further, Dr. Kam noted what appeared might be a possible fractured finger. In cross-examination he confirmed that the abrasion noted involved some sort of trauma and could be consistent with one "falling and sliding down the stairs".
(c.) EVIDENCE OF PHILLIP LEBOLD:
52 Mr. Lebold is a registered nurse who on November 14, 2004 was also working in the Emergency Department of the Grand River Hospital. He had contact with Mr. Weber when he was admitted there at about 7:10 p.m. that evening. Mr. Weber was responsive to his questions and although the responses were not sought to be admitted into evidence, Mr. Lebold did describe Mr. Weber as responding quickly to his questions without any difficulty. He described the injury to the finger of Mr. Weber and his efforts to arrange for a transfer to another location following his discharge from the hospital. He noted that Mr. Weber appeared to be awake, alert but "mildly confused".
4) EVIDENCE OF PATRICIA HARRISON AND CONSTABLE STEPHEN WASSOM:
53 The Crown did pursue an application to introduce certain utterances made by Mr. Weber to Patricia Harrison, a registered nurse at the Grand River Hospital on November 14, 2004 as substantive evidence in the trial. A voir dire was conducted and Ms. Harrison as well as Constable Wassom who was present during the utterances and recorded same were called as witnesses on the application. A ruling was delivered wherein the court was ultimately satisfied that the utterance made by Mr. Weber to Ms. Harrison and as recorded by Constable Wassom met the tests of threshold reliability and of necessity and such statements were then admitted into evidence on the trial.
(a.) EVIDENCE OF PATRICIA HARRISON:
54 Patricia Harrison was a registered nurse on duty on November 14, 2004 at the Grand River Hospital when Mr. Weber arrived in the Emergency Department. She referred to an Emergency record and noted that Mr. Weber was thin, "maybe a little emaciated" and that he had indicated that he was hungry.
55 She noted some contusions, abrasions and a small laceration. She noted that he was wearing no underwear on arrival and found that to be "unusual". He appeared to be oriented and able to relate events. The contusions were to both knees, his right shin and his spine.
56 While she was attending to Mr. Weber information was conveyed to her by the paramedics as to what was alleged to have taken place. It is my understanding from her evidence that the paramedics relayed that information while she in fact was examining Mr. Weber in his presence. Mr. Weber was questioned with regard to his orientation. He knew his name, his birth date, although he was not able to relate the date, i.e. November 14th, 2004. He was however able to indicate to her "the events of the day".
57 She referred to the Emergency record and noted on page two of the Emergency record an objective assessment which indicated that Mr. Weber remembered "being pulled down the stairs". When questioned by Ms. Janzen in that regard the following exchange took place:
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"Question: Okay. You have written patient remembers being pulled down the stairs, that - that's your ... | ||
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Answer: I asked the patient ... | ||
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Question: ... language? | ||
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Answer: ... if he was pulled down the stairs. | ||
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Question: Can you recall specifically what he said? | ||
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Answer: I remember him telling me he was pulled down the stairs. | ||
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Question: Is that in response to a question asking him like do you remember being pulled down the stairs and he agrees with you or is the language coming from him? | ||
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Answer: I asked the patient what had happened to him. | ||
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Question: And what is it that he tells you? | ||
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Answer: The patient told me that he was pulled down the stairs." |
58 Ms. Harrison also indicated in cross-examination that the statement or utterance recorded on the chart attributed to Mr. Weber was not a complete verbatim account of what had been said to her.
59 In cross-examination she noted as follows:
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"Question: And obviously the statement that you have said you do believe comes from the patient is obviously not verbatim? | ||
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Answer: If I had it put in quotation marks it would have been exactly what the patient had said to me. | ||
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Question: All right, you'll agree with (sic) there are no quotation marks here? | ||
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Answer: No. | ||
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Question: So this is not a verbatim account of what the patient said to you? | ||
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Answer: No." |
(b.) EVIDENCE OF CONSTABLE STEPHEN WASSOM:
60 Constable Wassom is a member of the Waterloo Regional Police Services and was one of the officers who responded to the call at "the Home" on November 14, 2004. He later attended at the Grand River Hospital with Mr. Weber and was in the Emergency Room beside the bed of Mr. Weber. It was his responsibility to observe Mr. Weber's injuries and record what was occurring at the hospital. He was present when Ms. Harrison had contact with Mr. Weber at 5:30 p.m.
61 Constable Wassom noted that Ms. Harrison started asking Mr. Weber questions as he was being examined and, although he did not have note in his notebook of the question that elicited the answer, he had an answer recorded as, "He was dragging me down the stairs. He was pretty mad because I wouldn't do what he said."
62 At the time this utterance was made only he, Mr. Weber and Ms. Harrison were present. He had also recorded that Ms. Harrison had asked Mr. Weber with respect to a "seizure time frame" as there had been some information causing her to believe that Mr. Weber had suffered a seizure and Mr. Weber had responded, "It happened before he dragged me down the stairs".
63 Constable Wassom had then recorded in his notes that Ms. Harrison had asked Mr. Weber, "So you remember being dragged down the stairs?" and Mr. Weber had responded, "Yes". Ms. Harrison asked Mr. Weber if he had anything to eat that day and he stated, "Nothing for lunch, I am very hungry."
64 In cross-examination Mr. Sabsay questioned the officer on what the question was that had prompted Mr. Weber's response with respect to being dragged down the stairs. Constable Wassom could not recall the question and did not have it noted in his notes.
65 Also when cross-examined about the "seizure time frame" he believes that Ms. Harrison had asked when that had occurred. There had also been conversation between Ms. Harrison and Mr. Weber about his injuries and what had happened that day but, as put by Constable Wassom, he "didn't have the exact details of that conversation".
66 Constable Wassom also testified that he had discussions with Mr. Weber at "the Home" prior to his removal and that during those conversations a number of "other officers" were present, including Constables Etheridge and VanDyke. Constable Etheridge had been the scribe with respect to a conversation that Constable Wassom had with Mr. Weber in Mr. Weber's room. The particulars of that conversation were pursued by Mr. Sabsay in cross-examination, not for the purposes of eliciting the evidence for the truth of their contents but simply for the purpose of determining that certain utterances had been made, which Mr. Sabsay indicated at the time would or should cause the court some concern with respect to the reliability issue to be determined on the voir dire concerning the utterances made to Ms. Harrison.
67 This entire area of questioning was discussed with counsel and submissions were made. It was clear that Constable Wassom did not recall all of the specifics of the conversation in Mr. Weber's room which had been noted by Constable Etheridge and, although he did recall some, a good deal of the conversation was not recalled. There was a recollection with respect to Mr. Weber advising Constable Wassom as to the possibility of a seizure, Mr. Weber's concern about being taken to the "cookie farm" and his references with respect to "George" being responsible, "George" being the owner as well as another resident and referring to "George" as the "restauranteur".
68 Constable Etheridge was never called during the course of the trial and the Crown did not seek to introduce the various statements attributed to Mr. Weber in the presence of Constable Wassom at "the Home" as substantive evidence at the trial.
69 The highest this portion of Constable Wassom's evidence goes is to simply relate to Mr. Weber's state of mind at the time he had the conversation with Constable Wassom prior to his being transported to the hospital. Constable Etheridge's notes were entered on consent of both the Crown and the defence, not for the proof of their contents but simply on the issue of reliability of what may ultimately have been said to Ms. Harrison by Mr. Weber at the hospital.
70 That concluded the evidence of the Crown. The defence then elected to call evidence and called a number of witnesses, including Mr. Gaglani.
B. THE CASE FOR THE DEFENCE:
1) EVIDENCE OF ALLAN LAAKSONEN:
71 Mr. Laaksonen initially gave evidence on March 21, 2006 and then again on July 24, 2006. He is a friend and an acquaintance of Mr. Gaglani and has been since 1978 when both were at the University of Toronto. He is currently a large file auditor with Revenue Canada.
72 He testified as to visits to "the Home" and in particular visits right after Thanksgiving and around Halloween in 2004. Apparently he was thinking of relocating at that time and came to visit Mr. Gaglani at the home to discuss that possibility.
73 He testified to meeting Mr. Weber. He described him as a "weak old man" and in terms of age, in his early seventies. He described Mr. Weber's actions and indicated that Mr. Weber would follow Mr. Gaglani everywhere and when he and Mr. Gaglani had sat down to talk Mr. Weber would be present. He spoke of conversations involving Mr. Weber and difficulties Mr. Weber had with his clothing and in particular his pants.
74 He described Mr. Gaglani's assistance to Mr. Weber when Mr. Weber's pants would fall down and what he perceived to be Mr. Gaglani's concerns about Mr. Weber's health. He described Mr. Gaglani as very helpful and at no time did he observe anything such as a hostile or angry exchange between Mr. Gaglani and Mr. Weber. He spoke of Mr. Gaglani's actions as "speaking very calmly, very relaxed, very, you know, comforting in a way".
75 In cross-examination Ms. Janzen explored Mr. Laaksonen's background and understanding with regard to caring for elderly people. That cross-examination actually opened up a whole area where Mr. Laaksonen in a quite candid and caring fashion described how he had been a caregiver for members of his family. Notwithstanding that there may have been some issue with regard to his approach to Mr. Weber that had been stated in examination-in-chief, it is clear that Mr. Laaksonen had a rather good feel for caring for elderly individuals and stated that a caregiver of elderly people cannot become frustrated as they have a duty to help these people as they are "the weakest people in society".
76 He was also questioned in cross-examination with respect to Mr. Gaglani indicating that Mr. Weber's behaviour was a result of him wanting attention. He described incidents involving food which undermined Mr. Cragg's and Mr. Soane's view as to Mr. Weber not being fed properly. He also had questioned Mr. Gaglani about Mr. Weber being present and following him and Mr. Gaglani had told him that Mr. Weber "likes to be around people, it's good for him to be around us ... he won't hurt you".
77 In cross-examination he explained in further detail the difficulty that Mr. Weber would have on occasion with his pants and being unable to "keep them up". He described observing Mr. Gaglani assist Mr. Weber by holding him by the arm and helping him walk to his room and Mr. Weber appearing to be "a little bit wobbly all the time".
78 Mr. Laaksonen in cross-examination related to the court a conversation he and Mr. Gaglani had subsequent to the events of November 14, 2004 wherein Mr. Gaglani had indicated that Mr. Weber had fallen or slipped down the stairs because his pants had fallen down and that he had gone to help him and had taken off his pants to enable him to move his legs freely.
79 He indicated that he had never heard Mr. Gaglani yell at anyone and described him as being very "passive" and very relaxed. On March 21, 2006 during cross-examination he was going to give an example of that relating to some issue around racial comments but moved on without giving details. He indicated however on March 21st that he had never seen Mr. Gaglani raise his voice.
80 When the court convened on July 24, 2006 Mr. Laaksonen again gave evidence at the request of Mr. Sabsay. He explained the circumstances as to how he had been in touch with Mr. Sabsay and provided further information about racial slurs that had been referred to but not explored on March 21st and Mr. Laaksonen wished to provide further information. I am satisfied that the reason he had not referred to the particular incident that he was about to refer to on July 24th on March 21st was for the reason set out in his evidence on July 24th.
81 On July 24th he testified as to an incident where he had been at "the Home" on October 12th and at that time a person named "George" who he identified as Mr. Craggs who was present in court on July 24, 2006 had entered the residence and had left the door open. Another resident indicated to Mr. Craggs that he should shut the door as Mr. Gaglani liked it shut otherwise flies would get into the residence. Mr. Craggs said the flies got in because of a broken screen door. Mr. Gaglani then appeared and advised Mr. Craggs that the door would have to remain closed and at that point Mr. Laaksonen heard Mr. Craggs say to Mr. Gaglani, "You stupid fucking Paki or something, I told you the screen is broken, that's why the flies get in."
82 According to Mr. Laaksonen Mr. Gaglani took this comment "pretty calmly" and in fact asked Mr. Craggs if he wanted some food. Mr. Craggs responded no and said that he was going outside for "a smoke".
83 In cross-examination Ms. Janzen asked whether or not he had discussed that particular incident with Mr. Gaglani afterwards. Mr. Laaksonen indicated that he had told Mr. Gaglani that it was totally unacceptable behaviour but Mr. Gaglani had indicated that he "didn't have a lot of residents right now and that, you know, George has his problems, he has his difficulties, he said, but George is a little bit upset because he had been caught getting these double prescriptions".
2) EVIDENCE OF RAMESH GAGLANI:
84 Mr. Gaglani is 57 years of age and is the owner of "the Home" which had been in operation since 2001. Prior to that he operated a similar type of business in Hamilton for 16 years.
85 He testified that Mr. Weber had been a resident of "the Home" for just under two years as of November 14, 2004. He described his room and the reason for the move from what he referred to as the second floor to the main floor (described by the Crown witnesses as the basement). It appears Mr. Weber actually had been moved to a double room with his own bathroom as there had been some issues with respect to his bathroom etiquette and the other residents.
86 Mr. Gaglani described how Mr. Soanes and Mr. Craggs came to be residents and the terms of their arrangements with "the Home". He spoke kindly of Mr. Weber as a "happy-go-lucky" individual (in good health overall although certainly some health issues). He testified that when Mr. Weber moved into the facility he weighed 140 lb. and the last time he was weighed before November 14, 2004 he weighed 138 lb. He testified as to the medical attention that Mr. Weber would received on occasion and gave evidence of taking him to doctors' appointments and Mr. Weber's general reluctance to attend such appointments.
87 He testified as to medication that Mr. Weber was prescribed and which was administered for certain psychiatric difficulties. He gave examples of what he referred to as "attention-getters" which he acknowledged all residents had but Mr. Weber's list seemed to be longer than some of the other residents. He gave examples of unusual actions such as offering food to others that was not there, pulling things from the air and falling down in front of residents and others. The frequency of this type of activity seemed to vary.
88 He describes his own reaction to these type of "attention-getters". He says that he took them in stride and adamantly denied that he would get angry or use profanity, for example when Mr. Weber would fall down.
89 Mr. Gaglani testified with respect to the clothing and in particular the pants and shoes of Mr. Weber. He described how his pants were too large and how he had taken him to buy a proper pair of pants and in fact paid for them. He did the same with respect to Mr. Weber's shoes. Mr. Weber had a habit of not tying his shoelaces and so Mr. Gaglani purchased him a pair of shoes with Velcro.
90 He denied knowing of Mr. Weber having a broken finger and indicated he had taken him to a medical appointment as late as October 2004.
91 Mr. Gaglani also testified with respect to the feeding of Mr. Weber and how he received the same as everyone else. He described that Mr. Weber, Mr. Soanes and Mr. Craggs in fact had their breakfast in their rooms but Mr. Weber would have his lunch and dinner on occasion in the kitchen of the residence. This was as a result of what the other residents considered to be his poor eating habits. Mr. Weber actually seemed to enjoy, according to Mr. Gaglani, eating in the kitchen where he could interact with the staff.
92 Mr. Gaglani denied that he had ever been approached by either Mr. Craggs or Mr. Soanes concerning the treatment of Mr. Weber, nor did he discuss Mr. Weber's situation with either Mr. Craggs or Mr. Soanes.
93 In fact, Mr. Gaglani describes in his evidence-in-chief that Mr. Weber was "no trouble at all" and that he was a "blessing". He stated that he was "A-1" and although he had problems "that's what we are here for".
94 When asked by Mr. Sabsay how he "got along with George" Mr. Gaglani responded as follows:
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"Just like everybody else. We treat them with dignity and respect. I didn't had no problems whatsoever that I remember." |
95 He did however say that Mr. Craggs had made comments to him about "the place being run by Pakis" and that there are "Pakis everywhere". He also testified as to his reaction to such comments which was effectively a non-reaction and was adamant that he continued to treat Mr. Craggs as his client and treated him with "fairness and dignity".
96 Mr. Gaglani described that although Mr. Weber was in good health when he originally moved in with him and in fact was driving, as time had passed (two years) his health "wasn't as great". His behaviour became more troubling and he describes specific incidents of that type of behaviour including the falling. He described Mr. Weber as being 6'1" whereas he himself is 5'3" and weighs 145 lb. He also described that he has an issue with his back which has been outstanding for some period of time as well as having diabetes. All of this evidence was presumably to indicate that Mr. Gaglani would have difficulty because of his size and health conditions of treating Mr. Weber physically inappropriately as suggested by Crown witnesses.
97 Specifically with respect to November 14, 2004, in examination-in-chief Mr. Gaglani testified that on that date in the middle of the afternoon he was in the kitchen assisting in the preparation of dinner with Kathy Taylor, a friend of his who helped out in "the Home" particularly on weekends.
98 Mr. Gaglani stated that traditionally there was a roast beef dinner each Sunday and they were preparing that dinner with Richard being present talking to Ms. Taylor. Mr. Gaglani indicated at the time he was washing dishes and Mr. Weber was in and out of the kitchen during the course of the afternoon.
99 At some point Ms. Taylor apparently requested of Mr. Gaglani that he take Mr. Weber downstairs as Mr. Weber was "flashing". Mr. Gaglani observed Mr. Weber to have his pants down with no underpants on and he indicated to him that this was not appropriate and "would you follow me".
100 Mr. Gaglani testified that Mr. Weber "always follows me like a shadow" and he followed him on this particular occasion. Mr. Gaglani stated that he opened the upstairs door and Mr. Weber was following him down the staircase. Photographs of this particular area, both the entry and the exit to the stairwell as well as the stairwell and landings are shown on photographs filed with the court.
101 Mr. Gaglani testified that he preceded Mr. Weber down the stairs to the first landing. He then went from the middle landing to the lower landing and told Mr. Weber to move along. Mr. Gaglani testified that Mr. Weber was coming down the last flight of the stairs and Mr. Gaglani himself was trying to open the door. He testified that he heard a "thump" and "before I know it his feet strike against my feet at the bottom of the bottom landing". The area where this took place is shown on Exhibit #1, photograph number 20.
102 Mr. Gaglani testified that both the upper and lower doors are closed because of fire regulations. He described the entry to the upper staircase as follows:
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"Question: Okay. So it was shut at this time. So, who opened the door for you to escort Richard down the stairs? | ||
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Answer: I opened the door. | ||
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Question: You opened the door? | ||
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Answer: I opened the door and hold it open. I say, Richard, come on, my friend; follow me." |
103 Mr. Gaglani testified that nothing eventful happened on the first of the stairs to the middle landing. He then went down the second set of stairs. The door was also closed. Again photographs were shown of this particular area to the witness and it was at the lower landing that Mr. Gaglani heard the "thump", turned around and had seen that Mr. Weber had fallen on the stairs.
104 Mr. Gaglani testified at that time the lower door was closed and he was in the process of opening the door when he heard the "thump". He testified that Mr. Weber's feet were actually touching his own and Mr. Weber's body was "on the steps" with one hand holding onto the railing and the rest of his body being on the steps.
105 Mr. Gaglani testified that he asked Mr. Weber if he was all right to which he received a positive response. He noted that Mr. Weber's pants were "all tangled up in his feet" at the ankle level and were just about "ready to come off".
106 Mr. Gaglani testified that he then helped Mr. Weber remove his pants as they were tangled up and he took Mr. Weber's pants off. He unravelled them and he states that this took place while he was on the bottom landing and the lower door was still closed. He used both of his hands to remove the pants which took less than 60 seconds and he left the pants beside Mr. Weber. He then told Mr. Weber that he was going to the door of his room to open it and "when you get up go to your room".
107 Mr. Gaglani left Mr. Weber where he was and went to his bedroom door. He came back and told Mr. Weber that he had the door open for him. In order to pass by Mr. Weber he had to open the landing door and he described how there was a magnetic "hold-open device" once the door is in fact open.
108 Mr. Gaglani testified that after he had told Mr. Weber he was going to his room to open the door he went down the hallway and saw Mr. Craggs coming towards him. He states that he had no conversation with Mr. Craggs and simply walked right by him to Mr. Weber's door. He testified that he actually passed Mr. Craggs twice, once going to Mr. Weber's door and once coming back.
109 Once he had opened the bedroom door he returned to the stairwell, opened the door, observed Mr. Weber pull up his pants, open the door and leave. Mr. Gaglani says he gave him a couple of minutes to get to his room, he watched him enter the room, went back and closed the door and told Mr. Weber that his "snack was on its way and I left". He stated that Mr. Weber went to his bed and was sitting on his bed and that is where "I left him".
110 Mr. Gaglani states that notwithstanding that there was a door magnet at no time during this incident on the stairs was the door open or the magnet engaged.
111 Mr. Gaglani testified that he then went upstairs and continued to prepare dinner and advised that snacks were prepared for the residents. Ms. Taylor went downstairs and returned and indicated that Mr. Weber wished to have some toast and jam and a coffee.
112 When questioned by his own counsel as to whether or not he actually pulled Mr. Weber down the stairs by his ankles he noted as follows:
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"Question: At any time on this afternoon, did you ever actually pull Richard down the stairs by his ankles? | ||
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Answer: No, sir, I don't - no. I don't think so | ||
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Question: You don't think so? | ||
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Answer: I never do that kind of stuff. I - no, I did not." | ||
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Question: You did not? | ||
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Answer: No I did not." |
113 Mr. Gaglani testified that he never manhandled Mr. Weber nor forcibly escorted him to his room on this occasion nor on any other occasion. He was adamant in that regard and noted "I never do that. I never done that."
114 Mr. Gaglani described how he removed Mr. Weber's pants and unravelled them. He noted that Mr. Weber was not at the time wearing shoes. Mr. Gaglani again denied that he had pulled Mr. Weber down the stairs and indicated, as he had previously, that he treats all residents with dignity and respect. He also indicated to the court that he was "feeling kind of very nervous because I've never been in court testifying".
115 He was questioned with respect to the carpeting on the stairs and once again was asked by his counsel whether he had dragged Mr. Weber across the corridor as indicated by Mr. Craggs in his evidence. Mr. Gaglani specifically denied that had happened.
116 Mr. Gaglani was cross-examined extensively by the Crown. The cross-examination included questioning eliciting evidence with respect to his financial situation, his background and the operation of "the Home" generally. He again described the arrangements for Mr. Craggs, Mr. Soanes and Mr. Weber, their rooms and the financial obligations of each. He was questioned about Mr. Weber's room and indicated that his room was on the main floor and not the basement as referred to by the Crown and was in fact a premium room because of the size of it and the presence of an ensuite.
117 He was questioned with respect to the other employees and the familial relationship between some of them. The initial part of the cross-examination of Mr. Gaglani by the Crown seemed to be directed at attempts to discredit him on the stand as an individual who ran "the Home" for profit only with some lack of caring and a degree of incompetency.
118 Ms. Janzen cross-examined Mr. Gaglani extensively with respect to Mr. Weber's "attention-getters" and specifically the falling down and the dropping of pants. She put to him that it must have been pretty upsetting and that he was "a bit impatient with his shenanigans, with his attention-getting schemes".
119 In response to that Mr. Gaglani indicated that he has the "patience of an angel" and that there was no reason to be impatient. He stated that Mr. Weber was very good at pulling up his own pants after he had dropped them and on November 14, 2004 he had done that and followed Mr. Gaglani down the stairs.
120 Mr. Gaglani acknowledged that Mr. Weber did not have a lot of visitors and that he might appear to be lonely but also stated that he was "always with me. Always, always he follows me everywhere I go. Not all of the residents followed me so, he got almost undivided attention from me day in and day out."
121 He continually denied the statements put to him by Ms. Janzen that he had dragged or pulled Mr. Weber down the stairs. There was reference made to comments Mr. Gaglani apparently made to a newspaper reporter which were not of great assistance to the court because that reporter was never called and Mr. Gaglani did not acknowledge specifically the comments attributed to him by the reporter. He denied that he ever yelled, that he forced Mr. Weber down the stairs. He denied that he effectively had lost his patience, that he "rough- handled" Mr. Weber and that Mr. Weber had lost his footing and he was dragged down the rest of the stairway by his ankles by Mr. Gaglani.
122 Mr. Gaglani denied that scenario and was adamant in that regard. His position continuously was that Mr. Weber had fallen on his own, that he had assisted in removing his pants and after checking for his well-being made certain that he was in his room. He did not, as the Crown put it, "yank him down the stairs".
123 With respect to the pants, he indicated that he had placed them beside Mr. Weber, that Mr. Weber had taken the pants down to his room and slipped his pants back on. Mr. Gaglani stated that he himself had not taken the pants to the room, that Mr. Weber had "grabbed his pants and opened the door and left".
3) EVIDENCE OF CANDACE CRAWFORD:
124 Ms. Crawford at all relevant times was an employee of "the Home" and was the Marketing Co-ordinator but when necessary did "other jobs as well". She was not present at "the Home" on November 14, 2004 but responded to a call from the police at one o'clock in the morning on the 15th of November and attended at "the Home" to meet with the police.
125 Ms. Crawford gave evidence with respect to Mr. Weber and Mr. Gaglani consistent with other evidence the court has heard from defence witnesses and indeed consistent with some of the evidence heard from Mr. Craggs and Mr. Soanes. She described Mr. Weber as being "quite frail" but capable of opening doors and climbing stairs without the assistance of a cane or a walker.
126 She, as others had, indicated that Mr. Weber liked attention and would act in ways to attract that attention including picking imaginary items out of the air, falling down and having difficulty both with his shoes and his pants. She testified that Mr. Gaglani had in fact bought Mr. Weber a pair of Velcro shoes as Mr. Weber had difficulty tying regular shoelaces. She described the falls that Mr. Weber would orchestrate and noted the falls appeared to be occasioned for no particular reason and involved Mr. Weber simply crumpling to the floor.
127 Ms. Crawford also, as others had, described Mr. Weber following Mr. Gaglani around and noted that from her observations the interaction between Mr. Weber and Mr. Gaglani was good. She stated that Mr. Gaglani "did more care" with Mr. Weber than the rest of the staff because Mr. Weber seemed to go along with what Mr. Gaglani would say.
128 She was questioned as to whether or not she ever observed Mr. Gaglani lose his temper or become angry or swear at Mr. Weber or in fact any of the residents. She indicated that she had never seen him angry with any of the residents, although she had seen Mr. Gaglani annoyed at a staff member. She stated Mr. Gaglani never seemed to get angry or frustrated with Mr. Weber.
129 She also spoke of Mr. Craggs' and Mr. Soanes' arrivals at "the Home" and noted that Mr. Craggs had indicated to her that he did not like Mr. Gaglani. Mr. Craggs had not indicated why he felt that way.
130 Ms. Crawford spoke of the incident involving Mr. Soanes some five days prior to November 14th when the police had arrived and Mr. Soanes had been handcuffed. She indicated to him that she had some concerns about that and might have to reconsider his being allowed to remain as that type of conduct was reflecting "very badly" on "the Home". As a result of that position Ms. Crawford indicated that Mr. Soanes was "angry".
131 When asked by Mr. Sabsay whether or not Mr. Soanes or Mr. Craggs ever spoke to her about Mr. Weber she indicated that Mr. Craggs had shown some concern about Mr. Weber's physical health but no complaints whatsoever about the way he was treated by Mr. Gaglani. She also indicated that Mr. Soanes only comment about Mr. Weber was one day when Mr. Weber had entered his room, laid on his bed and Mr. Soanes had become angry and was "hollering" for Ms. Crawford to come to his room to remove Mr. Weber.
132 Ms. Crawford was cross-examined skilfully and thoroughly by Ms. Janzen, although on occasion in a manner that in my view unsuccessfully attempted to portray Ms. Crawford and the conduct of business in "the Home" as less than adequate and in many ways negligent.
133 Through the Crown's questioning of Ms. Crawford concerning Mr. Gaglani the relationship with Mr. Weber and Mr. Gaglani was portrayed as a relationship of caring and concern about Mr. Weber. From her evidence, as with the evidence of other employees there was nothing negative to be attributed o Mr. Weber's lack of medical attention, feeding including not only size of portions but service in his room or the location of his room in the lower level of the residence.
134 She did relate an incident where Mr. Gaglani appears to have sworn at a resident who came into the kitchen while he was talking with Ms. Crawford. He apparently had told a resident to "get the hell out. Can't we have any damn privacy?". She in fact had spoken to Mr. Gaglani about that comment and she did not think that was appropriate. She acknowledged that this type of incident was rare.
135 Ms. Crawford appears not to have been keen on having Mr. Craggs or Mr. Soanes in "the Home" in the first place as it was a retirement home for seniors. She indicated that to Mr. Gaglani and he apparently had told her, "Everyone deserves to have a home". Her concern was the alcohol and drug abuse in the backgrounds of both Mr. Soanes and Mr. Craggs and the fact that they were "younger people" and did not, in her view, fit in well with the balance of the clients in "the Home" who were in their seventies and eighties.
136 Ms. Crawford stated that when Mr. Craggs expressed concern about Mr. Weber's health she told Mr. Gaglani and Mr. Gaglani indicated he would be taking Mr. Weber to a doctor. It was her belief that in fact had happened.
137 She also confirmed in cross-examination that throughout the period of time she worked there she had seen Mr. Weber fall "a half dozen times". As thoroughly explored during cross-examination, it appears that such falls were not recorded, nor were the falls of other residents if they occurred. Notwithstanding that the falls were not recorded, I am satisfied that they happened. In fact, the falling is consistent with the evidence of Mr. Craggs and Mr. Soanes as well as other witnesses.
4) EVIDENCE OF KATHLEEN TAYLOR:
138 Kathleen Taylor, a friend of Mr. Gaglani's, is 52 years of age and is a primary school teacher by profession. She would visit Mr. Gaglani at "the Home" on weekends and during that period of time would do "volunteer work" in "the Home". On November 14, 2004 she was the member of "the staff" and was in fact in the kitchen area with Mr. Gaglani.
139 She testified that on the afternoon of November 14th Mr. Craggs came into the kitchen just prior to lunch. She had met him on previous occasions and described him as an unhappy individual but she tried to reassure him that the lunch was coming soon and it would be "a great lunch". She was in the kitchen preparing dinner with Mr. Gaglani for the residents when Mr. Weber appeared stating he was hungry. She advised him that she would prepare a snack for him and bring it down to his room.
140 According to Ms. Taylor Mr. Weber continued to stand in the hallway and was "picking things out of the air and he was being silly". She indicated to him that she would bring the snack down to his room and Mr. Weber then went over to the doorway leading to the "main floor". He was at the stairway door and Ms. Taylor testified that he then "kind of dropped his pants". At that point Ms. Taylor requested Mr. Gaglani take Mr. Weber "down to his room". She did that because she knew that Mr. Weber would follow Mr. Gaglani to the room.
141 Photographs were produced and Ms. Taylor noted the door that was leading to the stairwell. She testified that she and Mr. Gaglani went to the door and she believes it was probably Mr. Gaglani who opened the door and she held it as it was a heavy door while Mr. Gaglani and Mr. Weber went down the staircase. She noted Mr. Gaglani to be going down first with Mr. Weber following slowly holding onto the railing. She testified as well that she had actually seen Mr. Weber standing on the middle landing at which time she shut the door behind her and went back to the kitchen.
142 "A couple of minutes later", she testified, Mr. Gaglani came back up the stairs and told her that Mr. Weber was in his room and that if she wanted to take the snack down to him she could. She stated that she did not hear any yelling or commotion from the staircase either before or after she closed the door to the top of the stairs.
143 She then went downstairs into Mr. Weber's room and asked him if he still wished to have a snack. He indicated that he did. He was situated on his bed and offered no complaint with respect to anything nor did he appear to be injured. She went back upstairs, made the snack and then took the snack back down to him. On the second occasion she again attended at his room and he again made no complaint nor were there signs of any injury.
144 Ms. Taylor testified that on neither occasion when she had attended to Mr. Weber's room on November 14, 2004 had she seen Mr. Craggs nor Mr. Soanes. She did testify that later that day she had seen Mr. Soanes and he was "very excited and had "a smile on his face" and indicated to her that Mr. Gaglani was to be arrested.
145 She testified that she had never seen Mr. Gaglani manhandle or mistreat in an aggressive fashion Mr. Weber at any point. She stated that Mr. Weber was a loner who enjoyed talking with her and "was somebody who always wanted to make sure that you were paying attention to him". She gave examples of that type of behaviour and reaffirmed on this particular occasion Mr. Weber had actually dropped his pants and was not wearing underwear when that took place. It was for that reason that she had asked Mr. Gaglani to assist him in getting to his room.
146 As with other defence witnesses, the Crown extensively cross-examined Ms. Taylor as to her evidence. She was adamant and consistent in her cross-examination with respect to the activities on November 14, 2004. She denied that Mr. Weber was annoying and in fact indicated to Ms. Janzen that Mr. Weber was quite enjoyable to talk to.
147 She testified as to some of the actions of Mr. Weber and the dropping of the pants on November 14th was not the first time she had seen that take place. She restated her evidence with respect to watching Mr. Gaglani and Mr. Weber go down the stairs and that she had held the door "out of politeness". She heard nothing resembling a commotion or noise in the stairwell and indicated that she in fact never even knew that Mr. Weber had fallen down the stairs until Mr. Gaglani was arrested.
148 She was questioned by Ms. Janzen with respect to what Mr. Gaglani had told her and it would appear from the answers to those questions that Mr. Gaglani was not certain himself why he was being arrested. She did indicate that subsequently Mr. Gaglani had advised her after he had been charged that Mr. Weber had slipped on the stairs and tripped over his pants and "slipped down the stairs" when his feet got "tangled in his pants".
149 Ms. Taylor testified as to her interaction with the police on the day in question and indicated that she had suggested the police speak with the owner if they wished to have further information concerning Mr. Weber. She also testified that at no time had she ever been interviewed by the police and when asked specifically by the Crown if she had given a statement in writing about what had happened she noted "nobody asked me which I was really surprised at, that nobody came and asked me".
150 As noted, she was consistent in her cross-examination with respect to her observations and her interaction with Mr. Weber on the day in question and when it was suggested by the Crown that she actually was not interested in telling the court precisely what happened and that she and Mr. Gaglani had somehow colluded or connived to not tell the truth because it was "dangerous to do so" she adamantly denied that suggestion.
5) EVIDENCE OF SERINA GAGLANI:
151 Serina Gaglani is the 29-year old daughter of Mr. Gaglani and resides at "the Home" with Mr. Gaglani and other residents. In addition to working in a pharmacy she also worked at "the Home" but she was not in fact working November 14, 2004.
152 She gave evidence with respect to her observations of Mr. Weber as well as her father's interactions with Mr. Weber. She described Mr. Weber as a "funny kind of guy" who was always "wanting to be around my dad". She noted that Mr. Gaglani took Mr. Weber to medical appointments and "anything like that". She also noted that Mr. Weber on occasion would be reluctant or refuse to go to the medical appointments but her father was able to motivate him to attend those.
153 She described the interaction between Mr. Weber and her father in a positive fashion. She indicated that she never saw her father become frustrated or hostile or aggressive with Mr. Weber.
154 She also described Mr. Weber's peculiar actions which she thought were meant to gain attention, which actions included falling and dropping his pants.
155 She stated her father had never indicated to her that he should "get rid of" Mr. Weber. She also indicated that Mr. Craggs had never expressed any concerns to her about Mr. Weber. She stated that Mr. Craggs kept to himself and she did not see a lot of interaction with Mr. Craggs and other residents including Mr. Weber. She did state that the odd time she had seen Mr. Craggs and Mr. Soanes together but did indicate that it was not "like they were best buddies".
156 She talked about the eating and sleeping habits of Mr. Weber and gave specific examples of the numerous incidents where Mr. Weber would fall on his own. She noted the falls were orchestrated in such a way that Mr. Weber was careful not to hurt himself and that you could tell it was not a "real fall". She had been present when Mr. Weber had fallen "a few times" when her father had been present. She noted that he did not get upset with Mr. Weber and did not swear at him during that interaction.
157 In cross-examination Ms. Janzen questioned Ms. Gaglani about what her father might have indicated to her following the incident on November 14, 2004. Ms. Gaglani told the court that Mr. Gaglani had indicated to her that Mr. Weber had fallen down the stairs and he tried to help Mr. Weber by unravelling his pants and removing them.
158 She was quite candid in indicating that she had not been present but she did demonstrate to the court how her father had explained how the pants had been removed to her and that was "her understanding of what happened". It was clear however that her father actually had not demonstrated visually as she did in the stand but had just told her about what had happened.
159 She acknowledged she had been aware that Mr. Weber had a broken finger a few days before the November 14th incident. She had in fact tried to take Mr. Weber to the doctor but he had refused. She stated that she had not told her father about that particular injury as she had tried to deal with it and felt that Mr. Weber was more than capable of deciding whether or not he should see a doctor.
160 Ms. Gaglani also gave evidence with respect to the feeding of Mr. Weber including what was served and where. She described his health care and from her evidence it would appear that Mr. Gaglani and the staff at "the Home" treated Mr. Weber in no different fashion than anyone else.
161 The Crown attempted through cross-examination to establish that Mr. Weber was considered to be a problem and Ms. Gaglani was questioned extensively concerning that particular issue. Ultimately Ms. Gaglani indicated that he was not a "problem", it was more "like he had issues and concerns". It was suggested by Ms. Janzen to Ms. Gaglani that she was aware that her father had a good deal to lose if he was convicted of the charge before the court, that she loved him and wished to help him and was doing so by telling the court that he would not become frustrated with Mr. Weber as it would hurt her father. In response to that Ms. Gaglani said that she was "telling you what I know. My dad never got mad at Richard, he never got frustrated with Richard". She stated that every time she had seen her father interact with Mr. Weber he was always "pleasant and nice". She also indicated that she had never seen her father lose his temper with her.
162 She also confirmed that Mr. Craggs was a "nice person" who kept to himself, although he too had "a lot of concerns" and those concerns had been expressed to her by Mr. Craggs, including issues with respect to the use of medication and mental health issues.
163 Ms. Gaglani again repeated to the Crown that Mr. Gaglani had attempted to encourage or motivate Mr. Weber to attend doctors' appointments and that Mr. Weber's relationship with her father seemed good. Mr. Weber would follow "my dad a lot" and would sometimes "wait outside the bathroom door for my dad". The relationship she portrays between Mr. Gaglani and Mr. Weber was a supportive not an abusive one.
6) EVIDENCE OF BRUCE HAINES:
164 Mr. Haines is an investigator retained by counsel on behalf of Mr. Gaglani to conduct an "investigation" in connection with the events of November 14, 2004 at "the Home". This investigation was conducted in May of 2006 after the trial had been commenced.
165 The investigation consisted of the taking of photographs, some of which have been marked as exhibits, of the various areas of the residence, measurements of distances within the residence (e.g. the hallway on the lower level, and the distance to certain rooms of residents), the creation of a video and measurement of certain sound levels generated by activities in the stairwell between the upper level and the lower level where the incident leading to the charge before the court occurred on November 14, 2004.
166 Much of this information was of limited use to the court. The photos produced were of some assistance as were the measurements in understanding the general layout of the building and the areas within the building which are of concern to the court but the recording of various sound levels and the videos of the activities that created those sounds were of little probative value.
167 The recording of certain sound levels and the exercise relating to the creation of the video was not to duplicate all of the possible scenarios from November 14, 2004 and at best that exercise indicated that it was in fact possible to hear or not to hear some sounds at some level from the room of Mr. Craggs and/or Mr. Soanes. There really is no dispute in any event that some sound may have been created on November 14, 2004 from the events described by Mr. Craggs, Mr. Soanes and/or Mr. Gaglani himself.
168 Mr. Haines also gave evidence with respect to the time that might be required to walk from the stairwell to the rooms of Messrs. Cragg, Soanes and Weber.
ANALYSIS OF FACTS AND LAW:
169 As noted initially, the Crown bears the onus throughout this proceeding and must prove beyond a reasonable doubt that Mr. Gaglani committed all essential elements of the charge before the court. Can I be satisfied beyond a reasonable doubt that Mr. Gaglani in fact assaulted Mr. Weber as described by Mr. Craggs and as stated by Mr. Weber to Ms. Harrison? Mr. Gaglani has given evidence in this matter and I instruct myself again with respect to the principles set out in Regina v. W.(D.) (1991), 63 C.C.C. (3d) 397.
170 A recent Court of Appeal decision, Regina v. Hull, [2006] O.J. No. 3177, August 4, 2006 in dealing with the principles set out in W.(D.) and other cases noted as follows at paragraph 5:
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" W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused." |
171 In this particular case, after having had an opportunity to review the evidence, hear the witnesses give their evidence and to observe the manner of the giving of the evidence and after hearing submissions from counsel and considering the relevant principles of law to be applied I am not satisfied that the Crown has proven all essential elements of the charge before the court beyond a reasonable doubt and Mr. Gaglani will be acquitted.
172 The case before the court is a troubling case. Mr. Weber, by all accounts, was a frail, elderly gentleman who apparently was dealing with a number of issues and also who presented as a vulnerable individual. However, as I noted initially, I must consider the evidence that is before the court carefully and dispassionately and without any trace of sympathy or prejudice for or against anyone involved in this matter. Ultimately I have concerns not only with respect to the evidence of the Crown but also with respect to some of the evidence of the defence. I am not in a position to say that I accept or reject either the evidence of the Crown or the defence and the evidence in its totality leaves me with a reasonable doubt concerning the guilt of Mr. Gaglani and the benefit of that doubt favours Mr. Gaglani.
173 The Crown's case initially rested on the evidence of Mr. Craggs, Mr. Soanes and the utterances alleged to have been made by Mr. Weber to Ms. Harrison. Mr. Sabsay urges the court to find that both Mr. Craggs and Mr. Soanes are not only unreliable but also not credible. The court is not prepared to go that far but certainly I do have concerns about various aspects of their evidence and the reliability of same.
1) EVIDENCE OF THE CROWN:
174 Mr. Craggs was presented by the Crown as an eyewitness to an event on the staircase at "the Home" on November 14, 2004. He stated under oath that he saw Mr. Gaglani drag Mr. Weber down the stairs depicted in various photographs that have been filed. Mr. Craggs' evidence when assessed from his answers both in examination-in-chief and cross-examination and looking at the balance of the evidence raises a number of concerns.
175 I think it is important to note that Mr. Craggs had only been a resident of "the Home" since September 2004, approximately two months before the incident on November 14, 2004. Mr. Craggs' opportunity to observe the ongoing daily interaction between Mr. Gaglani and Mr. Weber was restricted to that period of time. His description of the relationship between Mr. Weber and Mr. Gaglani is such that he would have the court find that Mr. Gaglani was physically and emotionally abusive towards Mr. Weber. His evidence is such that his observations would indicate that Mr. Weber was manhandled on a rather regular basis, was treated with disdain, disrespect, fed less than others and medicated in an excessive manner. None of that evidence is supported by the evidence of others, save and except Mr. Soanes and his evidence to a great degree was compromised by his comments in correspondence addressed to Mr. Gaglani both before and after the event in November 2004.
176 Mr. Craggs has a history of issues dealing with substance abuse, a criminal record including a conviction for public mischief and came from a hospitalization to "the Home" with a diagnosis of "extreme panic disorder". That is not to say he is not a credible witness but the court must be concerned about his ability to recall events and make proper observations in an objective fashion, such as the observations he says he made at the stairwell on November 14, 2004.
177 In addition, Mr. Craggs, by all accounts including his own to some extent, appears to have developed a dislike for Mr. Gaglani and an anger. He felt that Mr. Gaglani never did "anything right" for Mr. Weber and he referred to Mr. Gaglani in a journal that he kept as "a Nazi and a rat". He expressed to others such as Ms. Crawford his dislike for Mr. Gaglani and again his animus towards Mr. Gaglani, which I find did in fact exist, requires the court to view his evidence with that in mind.
178 A good deal of Mr. Craggs' concerns about the alleged mistreatment by Mr. Gaglani of Mr. Weber is simply not borne out by the evidence of many witnesses called on behalf of the defence whose evidence I find is credible, believable and reliable. Mr. Gaglani was noted to be caring and concerned about Mr. Weber's condition, the state of his health and he appears to have been patient in his dealings with him without any open incidents at least of anger or physical or verbal abuse. The evidence of the defence witnesses, and specifically Mr. Laaksonen, Ms. Crawford, Ms. Taylor and Serina Gaglani, clearly speak of the relationship between Mr. Gaglani and Mr. Weber in much different terms than Mr. Craggs. Mr. Craggs came to his conclusions at a very early point in his stay at "the Home" and his references to the fact that he never liked Mr. Gaglani "from the beginning" and his feelings that "the place was run by Pakis" are relevant in the assessment of his evidence generally. I note that although he denied the comment with respect to "Pakis" but I am satisfied that he made such comment in reference to Mr. Gaglani on more than one occasion as testified to by defence witnesses.
179 Keeping those matters in mind and without taking an overly critical approach to Mr. Craggs' evidence otherwise, it is clear that the version of the event testified to by Mr. Craggs itself causes the court some concern. Mr. Craggs testified that he was in his room watching a video, paused the video and then heard "quite a bit of noise" and "a lot of banging" down the hall. He looked out his door and saw Mr. Gaglani's back apparently going back into the stairwell area. At that point he walked down the hall at a distance described by Mr. Haines and as shown in the photographs and states that he observed Mr. Gaglani with his hands around Mr. Weber's ankles pulling Mr. Weber down the stairs. Mr. Weber's shirt was up under his arms, his pants were down by his ankles and he appeared to be "naked". As I understand Mr. Craggs' evidence then, he is testifying to the event of the pulling down the stairs taking place while he is actually there. If that is the case one wonders how he heard the noise and travelled down the hall and the event is still taking place over a relatively small number of stairs as shown on the photographs. I accept Kathy Taylor's evidence that nothing took place in the first set of stairs to the middle landing and the fall took place between the middle landing and the bottom landing. For noise to be occasioned as a result of the pulling down the stairs, or indeed a fall, Mr. Craggs would have to have heard the noise he states he heard, travel down the hallway and then still observe Mr. Gaglani pulling Mr. Weber down a short set of stairs.
180 Mr. Craggs also says that he then sees Mr. Gaglani pull Mr. Weber to a corner in the hallway and he showed the court that on photograph numbers 27 and 28. Mr. Craggs states that Mr. Gaglani then disappears and reappears with a wild look in his eye. Mr. Craggs then goes to Mr. Soanes' room, takes the phone and either phones from in the room or to the doorway, as testified to by himself, and phones 911. Apparently when he comes out of the bedroom after that phone call neither Mr. Weber nor Mr. Gaglani are in the hallway.
181 If Mr. Craggs made the call from the doorway as he initially stated, one wonders why he would not have observed both Mr. Gaglani and Mr. Weberin the hallway as, according to his evidence, Mr. Weber was dragged by Mr. Gaglani down the stairs and into the hallway. Mr. Soanes' room is such that Mr. Weber's room is across the hall and Mr. Weber would have had to have come down the hall. Mr. Craggs says that Mr. Weber was not in his room and neither he nor Mr. Gaglani could be found on the lower level after the phone call was made. One wonders where they went according to his evidence and wherever they went one wonders why he would not have observed them going there given his position during the making of the call. Notwithstanding his concern for Mr. Weber and the apparent disappearance of both Mr. Gaglani and Mr. Weber, Mr. Craggs went outside to have "a couple of puffs of a cigarette", as he puts it, and then returns to the hallway and now notes Mr. Weber to be in his bed in his room.
182 In my view his evidence with respect to the entire event is somewhat disjointed and difficult to understand. Indeed, his evidence as to what he says he observed in the stairwell is very consistent with the evidence of Mr. Gaglani, save and except the dragging down the stairs and dragging Mr. Weber into the hallway. That is, Mr. Craggs arrives at the stairwell after Mr. Weber has fallen or in some way got to the bottom landing and Mr. Gaglani by his own admission is holding Mr. Weber by his ankles, not to pull him down the stairs but to assist him in removing his pants. Mr. Gaglani then states that he goes down the hall, passing Mr. Craggs without commenting to him, to open up Mr. Weber's door. This would explain Mr. Gaglani's "initial disappearance" as testified to by Mr. Craggs. He then reappears when he comes back down and Mr. Craggs then apparently is going to Mr. Soanes' room to place the call.
183 Presumably what happened at that point is more consistent with Mr. Gaglani's evidence that Mr. Weber was able to make it to his room with his pants intact - the door had been opened - and he went into his bedroom. Why this was not observed by Mr. Craggs is a concern but of more concern is the fact that the event that he describes at the bottom of the stairs as having been observed by himself is equally consistent with Mr. Gaglani's evidence concerning his positioning vis-à-vis Mr. Weber at the bottom stairwell.
184 Mr. Craggs' observations confirm in fact some of the evidence of Mr. Gaglani as far as the interaction with Mr. Weber in the stairwell. These observations certainly do not confirm the pulling down the stairs or pulling to the corner in the hall but I am not prepared to accept Mr. Craggs' evidence in that regard. His view of the entire event is of course perceived through the eyes of an individual who has a dislike for Mr. Gaglani, has been disrespectful of him and "doubted him" from the time he arrived some two months previous. That perception and his overstatement as to how Mr. Gaglani treated Mr. Weber prior to November 14, 2004 as compared to how Mr. Gaglani treated Mr. Weber according to the evidence of others and the gaps in his evidence with respect to what actually took place after he initially attended at the stairwell all cause the court some concern.
185 Mr. Soanes did not actually witness the event on November 14, 2004 although he was in his room at the time the incident took place on the staircase. He did not see either Mr. Gaglani or Mr. Weber. Given the fact that Mr. Craggs used his phone and had some discussion with Mr. Soanes about what had taken place one wonders why Mr. Soanes would not have seen anything if he looked out in the hall if the events occurred as suggested by Mr. Craggs. Mr. Soanes gave evidence with respect, as well, to the alleged mistreatment of Mr. Weber by Mr. Gaglani during his stay at "the Home". Mr. Soanes had of course been there longer than Mr. Craggs. Mr. Soanes also had some issues that he was dealing with and had in fact been involved in an incident a short time before November 14th wherein his placement at "the Home" was placed in jeopardy and he was noted by Ms. Crawford to be "angry".
186 Also, his evidence with respect to the interaction between Mr. Gaglani and Mr. Weber on other occasions has to be considered in light of his comments to Mr. Gaglani in a note of August 2004 that Mr. Gaglani was "continually caring and giving and respect shown to all". He said that he was effectively just "kissing butt" at that time so one could perhaps reasonably conclude that Mr. Soanes wished to further his own position in August of 2004 within "the Home" by making a misleading or an incorrect statement to Mr. Gaglani, or one could equally conclude that he meant it because in March of 2005 even after this event, although he did refer to Mr. Gaglani's temper in a letter he mentioned in the same letter that Mr. Gaglani was "truly kind and friendly". This is in my view not consistent with someone who would reasonably be upset if Mr. Weber was treated as Mr. Soanes says he was by Mr. Gaglani. Again I find given the evidence of other witnesses with respect to that relationship which I prefer over Mr. Soanes it would appear that Mr. Soanes has at least overstated the alleged mistreatment of Mr. Weber by Mr. Gaglani.
187 With respect to the utterances made by Mr. Weber to Ms. Harrison at the hospital, although they have been admitted into evidence and the issues of necessity and threshold reliability have been addressed, the ultimate reliability of those utterances is a concern to the court. It is clear from all the evidence, including the evidence of Mr. Craggs and Mr. Soanes that Mr. Weber's physical and mental health appears to have been deteriorating for some time prior to November 14, 2004. Mr. Craggs himself stated that Mr. Weber only understood about 70 percent of what he was saying and he had gone downhill even in the two months he had been there. There were certainly psychiatric issues involving Mr. Weber and there appears to have been some dementia. His actions appear to have been more than just attention-getters and perhaps were indicative of a compromised mental capacity. This would include the grabbing of non-existing objects, the falling, the habits when eating food or using the bathroom and other actions of Mr. Weber as described by various witnesses.
188 By the time Mr. Weber was in the care of Ms. Harrison he had been exposed to a number of people, including police officers in his room as testified to by Constable Wassom, the paramedics and other medical personnel at the hospital. If not a party to, he certainly had an opportunity to be privy to conversations concerning the investigation and the allegations made both while at "the Home", in transport and while being examined by Ms. Harrison when the paramedics themselves are conveying information they have received from other sources to Ms. Harrison in the presence of Mr. Weber prior to his utterance upon which the Crown relies.
189 Mr. Weber's mental state is a concern to the court. He was on medication for psychiatric issues and he made comments on November 14, 2004 to the police which caused not only the police some concern but also caused the court some concern. This relates to issues with respect to "George, the restauranteur" and the statement with regard to the "cookie farm". As well, he presented as confused.
190 Further, I am not entirely satisfied with the circumstances under which the utterance was made and whether or not the utterance testified to was the complete conversation. Clearly, Constable Wassom advised that he had not noted the entire conversation with Mr. Weber and Ms. Harrison, nor did he note the question that led to the utterance upon which the Crown wishes to rely. Ms. Harrison in her own evidence indicated initially that she questioned Mr. Weber by asking him if he was pulled down the stairs. She then stated that she asked Mr. Weber what had happened to him and at that point he told her he had been pulled down the stairs. It is unclear on the evidence whether the response from Mr. Weber was in response to a leading question or simply a general question as to what had happened. In any event, there is not a verbatim account of what was said by Mr. Weber, according to the evidence of Ms. Harrison, and there is not a complete record. Further, in looking at the issue of reliability in this particular case the absence of an opportunity to cross-examine on what would obviously be some very fertile ground for defence counsel is a factor to be considered. Ultimately I am concerned about the reliability of that particular evidence given all the circumstances between the time of the event and the statement being made to Ms. Harrison. It is of note that the Crown did not rely on any other utterances made by Mr. Weber to anyone else involved as substantive evidence.
2) EVIDENCE OF THE DEFENCE:
191 Leaving aside the evidence of Mr. Gaglani for a moment, I find that the witnesses called on behalf of the defence were credible and reliable witnesses. Without exception they gave their evidence in a candid and straightforward manner. I find that they were attempting to answer honestly all questions put to them both by Mr. Sabsay and Ms. Janzen in cross-examination. Mr. Laaksonen presented initially perhaps as somewhat aloof and arrogant given his evidence concerning his conversation with Mr. Weber regarding certain theories but after hearing his evidence in-chief to completion and in particular his evidence in cross-examination I am satisfied that Mr. Laaksonen is a very caring and compassionate individual. In my view, his own personal experience enhances the reliability of his evidence and particularly his evidence as to his observations concerning the relationship between Mr. Weber and Mr. Gaglani. His description of that relationship is consistent with the description of the relationship by others. That is, Mr. Laaksonen observed Mr. Gaglani to be a caring individual who was not observed to lose his temper with Mr. Weber notwithstanding Mr. Weber constantly following him. He never observed Mr. Gaglani to lose his temper and he had observed Mr. Weber having difficulty with his clothing and in particular his pants. He never observed a hostile or angry exchange between the two of them and noted that Mr. Gaglani dealt with Mr. Weber in a calm and relaxed manner. As he put it, in a comforting way. I expect, given his own personal experience he would not hesitate to state and advise the court if he had observed Mr. Gaglani in any way treating an elderly resident such as Mr. Weber as suggested by Mr. Craggs.
192 I fully appreciate of course Mr. Laaksonen is Mr. Gaglani's friend but I accept his evidence concerning his observations with regard to Mr. Weber and Mr. Gaglani. I also accept the evidence that he gave on July 24th with respect to Mr. Craags and a derogatory racial comment that Mr. Craags made to Mr. Gaglani without any apparent reaction on the part of Mr. Gaglani.
193 The same can be said with respect to the evidence of Candace Crawford and Serina Gaglani. One of course would expect perhaps Mr. Gaglani's daughter to be supportive and she was. She confirmed incidents involving Mr. Weber dropping his pants and her father's reaction to that as being a passive reaction. She described the relationship as she observed it between Mr. Gaglani and Mr. Weber. She seems to understand that Mr. Weber had issues. Her evidence clearly indicates that Mr. Gaglani did not overreact or mistreat Mr. Weber. She states that she never saw him become frustrated or hostile or aggressive with Mr. Weber and I accept that she never made such observations. She was a witness that I was particularly impressed with because she was not overly critical of Mr. Craggs. She described him as a nice person who kept to himself and who had some concerns. She, as others, spoke of Mr. Gaglani's attempts to motivate Mr. Weber to attend on physicians and as an individual who would and did in fact purchase clothing including shoes for Mr. Weber to help him and did take him places other than to doctors' appointments when no one else would seem to have much success in getting him out.
194 Ms. Crawford had similar comments with respect to the relationship between Mr. Weber and Mr. Gaglani as she observed it. She too I find was a candid and forthright witness. She does acknowledge that Mr. Gaglani was observed to lose his temper with a resident at one point in the presence of staff but that appears to have been an isolated incident. She made no observations to support the position of Mr. Craggs and/or Mr. Soanes that Mr. Gaglani was continually abusive towards Mr. Weber or that Mr. Weber was treated as a nuisance and subjected to underfeeding and overmedicating.
195 The evidence of Kathy Taylor I find as well is credible and reliable. I find that November 14, 2004 she did observe Mr. Weber and Mr. Gaglani to go down the stairs, at least to the first flight and that she heard nothing nor noted anything of any consequence. I accept her evidence that Mr. Weber had dropped his pants on that day and was to go back to his room. I accept that she attended to the room after and did not note any concerns or complaints from Mr. Weber nor did she see Mr. Craggs or Mr. Soanes.
196 I find that there was no reaction from Mr. Gaglani when he returned from Mr. Weber's room and there was nothing heard in the stairwell by her or anything in the contact between Mr. Weber and Mr. Gaglani on that date that would cause her any concern.
The Crown attempted to portray Ms. Taylor as someone who was trying to protect Mr. Gaglani but my impression after hearing and observing Ms. Taylor is that she was conveying to the court in an honest fashion what she observed, both on November 14, 2004 and on prior occasions with respect to Mr. Weber and Mr. Gaglani and was not attempting to mislead the court or indeed protect Mr. Gaglani.
197 Finally, there is the evidence of Mr. Gaglani. He too gave his evidence in a straightforward manner and was cross-examined skilfully and thoroughly by Ms. Janzen. His evidence withstood that cross-examination and there were no inconsistencies in his evidence. There is no reason that I can find even on the totality of evidence to reject his evidence.
198 There are concerns, however, I have about his evidence but those concerns do not, in isolation or when considering all of the evidence including the evidence of Mr. Craggs, cause me to reject his evidence in total. Those concerns lead me to be in doubt with respect to the acceptance of his evidence over that of Mr. Craggs' but are not sufficient enough to lead me to reject his evidence entirely. As a result while I do not accept his evidence I am certainly left in a reasonable doubt by it.
199 The concerns I have with respect to Mr. Gaglani's evidence relate to what I find was a continuing effort on his part throughout his evidence to stress his reasonableness and acceptance of the actions of Mr. Weber and others within "the Home" including Mr. Craggs and Mr. Soanes. He overly stated his patience (noted by himself to be the "patience of an angel") and his caring manner towards all of the residents. Based on all of the evidence from the witnesses for the defence perhaps that evidence is not so overstated but it was clear from Mr. Gaglani's presentation in court that he wanted to make the court aware that he had done many things for Mr. Weber. He would often refer back to things he had done without cost (e.g. the purchase of the shoes), the taking of Mr. Weber or sometimes the attempts to take him to a doctor and the preparation of Mr. Weber's food.
200 These particular concerns, as I say, are not such to cause me to reject the evidence of Mr. Gaglani but put me in a position of not being able to completely accept his evidence. Another concern I had with regard to his evidence was addressed by counsel in submissions. During the course of being asked specifically by Mr. Sabsay whether or not he had dragged Mr. Weber down the stairs on the day in question he stated, "No, sir I don't - no, I don't think so". He then when questioned by his own counsel about him not "thinking so" stated, "I never do that kind of stuff. I know - no I did not." In isolation this would appear to be some hesitation on his part as to whether or not he actually recalled the event himself in detail. However, when I look at his evidence in total I am satisfied that was more likely a grammatical error or a misstatement produced by nervousness as it certainly is inconsistent with all of his evidence otherwise with regard to the denial of the circumstances as described by Mr. Craggs in the stairwell. He was cross-examined extensively by Ms. Janzen without otherwise being inconsistent with his position that he did not pull Mr. Weber down the staircase and ultimately I am satisfied that, notwithstanding that concern, I am not in a position to reject his evidence as to what occurred in the stairwell.
201 The scenario painted by Mr. Gaglani with respect to the incident on November 14, 2004 is capable of belief. Mr. Weber had a history of falling, a history of having his pants down around his ankles and the injuries noted are as consistent with Mr. Weber falling down the stairs as being pulled.
202 In summary then, the evidence in total does not convince me beyond a reasonable doubt that Mr. Gaglani is guilty of assaulting Mr. Weber on November 14, 2004. The court has heard two versions of what took place in that stairwell. The onus is on the Crown to satisfy the court beyond a reasonable doubt that what took place is in accordance with Mr. Craggs' version. That onus not having been met Mr. Gaglani will be found not guilty. The reasonable doubt, I would note again, does not arise as a result of the acceptance of either Mr. Craggs' version or Mr. Gaglani's. It arises as a result of the court not being in a position to reject or accept outright the evidence of either of those two witnesses when considering all of the evidence in this matter. The finding of not guilty should not be seen in the circumstances as a vindication of Mr. Gaglani nor as a condemnation of Mr. Craggs. It is simply a situation where the Crown has failed to satisfy the onus required in a criminal charge and a reasonable doubt exists.
203 As a result, the charge is marked dismissed and the information will be noted accordingly.
G.F. HEARN J.
