calgary defence blog
A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
Coffee Thrower Assault in Saskatchewan
Posted in ASSAULT andAugust 2, 2019
coffee thrower video
CBC reported an incident supported by a video of Falgun Viviya being assaulted when another person threw coffee in his face. The assailant fled while others videotaped the incident. The video was posted online, where it went viral.
Mr. Viviya's case is a conversation piece for a variety of legal topics. Several come to mind: the offence of assault, party to an offence, identification and investigation.
What happened to Mr. Viviya was a criminal assault and could very well result in charges being laid if Saskatchewan police manage to identify his assailant. As a reminder, pursuant to s. 265 of the Criminal Code of Canada, "assault" is defined as follows:
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
party to an offence
Not only is it possible for criminal charges to be laid against the coffee thrower, it is also possible for the person or persons filming the incident to be charged as a "party" to the offence of assault; for as reported, those taping the event were laughing. In Canadian criminal law a person can be a party to an offence if they aid, abet or having an intention in common with the "principle" who committed the crime.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
In the instant case, videotaping the event and laughing as it occurred could be construed as encouraging (or abetting) the commission of the assault. Also, the act of filming could be construed as premeditation to commit the offence; meaning that the principle and party could have formed an "intention in common". Of note, I have written previously on identification and parties to an offence in "Brick foils apparent break and enter attempt".
It is noteworthy that if a "party" is convicted, there is no legal difference between principles and parties for the purpose of sentencing. Though a party to an offence could receive a lesser penalty due to his/her lesser involvement, it is possible for a party to be sentenced similarly to the principle. It is even possible for a party to receive a higher sentence. In this case, the fact that the party recorded the event as part of what may have been a premeditated plan, while laughing and potentially furthered the harm by posting the video, an argument could be made that the filmer should receive a higher sentence than the thrower. Of course, every case turns on its own facts. It is too early to draw any conclusions.
identification and circumstantial evidence
There are a variety of legal issues at play in this investigation.
To begin with, the first question is whether the assailant or those taping the event can be "identified". As I have written previously, "identification" is an essential element to every criminal offence. The video does not clearly depict Mr. Viviya's assailant and therefore, is of limited value in so far as it helps to identify the accused. However, since the video was posted online, it may be possible for the police to use the electronic data trail to identify the person(s) who initially posted the video. There is a reasonable prospect that identifying who first posted the video will lead to police to the assailant or one of the parties to the assault. If the police can track down a suspect by following the online data, they might be able to obtain circumstantial evidence capable of connecting an accused to the offence.
Circumstantial evidence allows a trier of fact to infer that a fact exists. In criminal law, the inference is made by the trier of fact in order to support the truth of an assertion. For an accused to be convicted on the basis of circumstantial evidence the inference in support of guilt must be the only reasonable inference capable of being drawn. If there are other reasonable inferences other than guilt capable of being drawn from the circumstantial evidence, the accused must be acquitted.
following the online trail
Identifying who posted the video has other investigative value; for if police are able to interview a suspect, the information gleaned from the interrogation could lead them to other suspects. Of course, if police manage to track down a suspect, detain and interview him/her, they must ensure that the suspect is afforded his or her section 10(b) Charter protected interests. Section 10(b) of the Canadian Charter of Rights and Freedoms assures that any person who is detained or arrested has the right to retain and instruct counsel without delay. This means that until the detainee has been afforded the right to counsel, the police must refrain from eliciting any evidence from that person until the right has been satisfied. As an aside, it is shocking how often police trammel over an accused's section 10(b) Charter protected interests and in the view of this Calgary criminal lawyer, even more shocking how police, prosecutors and judges are prepared to ignore or marginalize the right.
Following the online data trail is not easy. To do so, the police would theoretically need to start at the earliest online post. If the video poster cannot be identified from looking at the online post, police would then need to identify the online service where the video was hosted. From here, they would likely need a warrant to obtain any information relating to the identity of the poster and the online information, such as the IP address indicating the approximate location of the source of the post. The point is, though it might be easy to think that the police should be able to easily discover who posted the video, the task is not a simple one.
The takeaway is that this investigation may not be easy. In fact, there is a very reasonable prospect that despite the viral nature of the video, the police may not be able to track down Mr. Viviya's assailant(s). Even if they manage to track down a suspect(s) and lay charges, this case could be very difficult to prosecute. The Crown must have a reasonable prospect of conviction before a case can be prosecuted. If the assailant(s) cannot be identified, there is no case. If they cannot be correctly identified, there is likely no prospect of conviction. Identifying the accused may require a relatively labour intensive and sophisticated police investigation that could further weaken the prospects of conviction even if suspects are identified and charges laid.
Sadly, in this Calgary criminal defence lawyer's view, there is a real possibility that the wrong to Mr. Viviya may go un-redressed. Whatever the case, though the behaviour of those involved was certainly childish and juvenile, it demonstrates a real lack of moral compass. Unfortunately, living in a society where thousands of human beings live in close proximity to each other, we will encounter cases such as this.
David G. Chow
Return to Blog