It's closing time at a Halifax bar and in the parking lot a fight
breaks out. It's over in seconds and the combatants scatter, except for the one they leave behind, the one they say started it all. The last they know, he's on the ground, but they don't think they've killed the guy.
But he does die, later, in hospital, after someone finds him and calls for help. Immediately the police launch an investigation, gathering statements and evidence. Almost as soon, the story hits the news and is the top story for a week, until arrests are made. Papers carry the picture of the accused coming to court. They were three teenagers, two of whom tried to hide in the woods when the cops came for them: by all appearances, guilty as hell.
Bobby Smith died three years ago, on July 17, 2004. Ryan Smith (no relation), Billy Comer and Jaret Hodgson were arrested for killing him six days later. Although they were initially charged together, Hodgson had his trial first, in June 2005. Hodgson's manslaughter charges were dropped in June of 2005, and he then agreed to appear as a prosecution witness in the Smith/Comer trial, where the two would ultimately face manslaughter charges as well.
That trial took place last summer and again—for a while at least—it was a big news story. The information that trickled out painted in most minds a clear picture of what happened. The boys had been drinking for hours when Bobby Smith happened upon them in the bar. Police would testify Bobby Smith had a long history of alcohol-related run-ins with the law. Cut off by the bar staff, Smith tried to persuade the boys to give him some beer and wouldn't take no for an answer. Words were exchanged. When closing time came, Smith was waiting outside, and as Ryan Smith, Comer and Hodgson piled out into the parking lot, tempers flared again and the fight was on. In short order Bobby Smith was down on the ground, and his assailants were running off into the night.
As the trials progressed in a series of stops and starts, media interest faded away. When the verdict was announced, there was almost no coverage and hardly a murmur of surprise, although, given the story that had unfolded in the public, surprise would have seemed warranted. Ryan Smith, not guilty. Billy Comer, guilty of common assault.
Bobby Smith died, but Ryan Smith and Comer didn't cause his death. How judge Felix Cacchione reached his conclusion, as laid out in his written decision, is the story of how our justice system works or not, depending on your point of view. It contains a twist worthy of a good Law and Order episode. And it raises the question of who was responsible for Smith's death, if those charged were not.
The story of Bobby Smith's death, as told in judge Cacchione's decision, begins with an evening of drinking among Comer and his friends Andrew Warner, Derek Morrison and Yannick Southwell at Geoff Maes's house (all of whom would appear as prosecution witnesses at trial). The others were trying to lift Comer's spirits because he had been fired from his part-time summer job earlier that day. They barbecued and drank, and sometime after midnight decided to walk the short distance from the house to Buster's, a now-defunct bar in a small strip mall called Mill Cove Plaza at the corner of Bedford Highway and Hammonds Plains Road. There they met up with their acquaintances Ryan Smith and Hodgson, who had, coincidently, been let out of a cab nearby after a dispute over the fare. The two walked into Buster's to call another cab shortly after Bobby Smith had first approached Comer and his group, after he had tried to take a swig of beer from the pitcher that sat on their table, and after Warner stopped him from doing so. Those at the table related the incident to the newcomers, while Bobby Smith sat some distance away and glared at them.
When closing time came, Ryan Smith, Comer and Hodgson left the bar first, followed shortly by Warner, Maes, Morrison and Southwell. Warner would testify that on exiting the bar, he saw Bobby Smith confronting the first group in a fighter's stance, fists up, threatening to put them all in the hospital. Bobby Smith first kicked Ryan Smith, Comer responded with a kick of his own (throughout the trial, Comer would insist this was the one and only time he kicked Bobby Smith. Warner would claim he saw Hodgson kick Smith when he was down, leading to the charges against Hodgson) and all three started throwing punches. After a sudden flurry of blows, Bobby Smith fell to the ground. The fight was over in less than a minute, and all had taken place only a couple of metres outside the door of the bar. At this point, Comer testified he saw headlights in the parking lot and yelled, "Let's get the hell out of here." The group split up, with Comer, Ryan Smith and Hodgson heading east toward Bedford Highway. Comer then made his way back to the Maes house, where he had planned to spend the night. Ryan Smith and Hodgson were videotaped on a security camera at a nearby gas station a short time later trying to call a cab.
Meanwhile, Warner, Maes, Southwell and Morrison walked northwest, across Hammonds Plains Road, and cut through the parking lot of another strip mall and series of businesses. Once they reached the far end of the lot, Warner testified at Hodgson's trial, he looked back and could see other people outside Buster's. Meeting up back at the Maes house, Maes, Warner and Comer briefly discussed what had happened, and then went to bed.
Although this is the story as pieced together by judge Cacchione from the testimony given by Comer, Ryan Smith, Warner, Maes, Southwell, Morrison and Hodgson, in his decision the judge makes clear he is less than impressed with the boys as witnesses. He found all were exceptionally drunk when the fight took place, calling into question their accuracy in the retelling of who did what to whom. All had the opportunity to discuss the events of the night among themselves for several days prior to the arrests. Maes admitted in court that despite his eye-witness statement to police during their investigation, he really couldn't see much of what happened on the night in question as it was dark and he was not wearing his glasses. Morrison admitted that some of what he had told police in his eyewitness statement were details others had told him after the fact. On the stand, allegiances broke down, with Hodgson calling Warner a liar for saying Hodgson had kicked Bobby Smith. Judge Cacchione in particular singled out Hodgson, whom he found to have "a cavalier attitude towards testifying under oath, exemplified by the fact he did not bother to read his statement of two years earlier before testifying in court." He calls Hodgson's testimony "not worthy of belief."
He also finds much of Comer's testimony questionable, including Comer denouncing Warner as a good friend, contrary to the fact the two had attended school, played sports and socialized together for years.
Yet despite any misgivings, judge Cacchione apparently believed he had enough of the pieces to put the puzzle together, at least as far as it concerned Comer, Ryan Smith and the others.
And he believed their actions were only the first act in the tragedy, because he fully believed the testimony of another witness.
Doug Durant was on his way to work when he pulled into the Mill Cove Plaza around 2:30am on July 17. He was stopping to make a deposit at the Scotiabank that anchors the east end of the mall, when, he testified, he saw a group of people chase down and then beat a man who would turn out to be Bobby Smith. While it's not uncommon for a witness to be incorrect in the details of an incident—claiming to see five people where there were six, or describing a t-shirt as black when it was dark blue—what is stunning about Durant's testimony is that it differs completely from that given by any other witness.
Durant told the court he saw a group of approximately 10 to 15 people, males and females, chase Bobby Smith from around the corner of the bank. He admitted the group could have been smaller, but definitely included girls and guys. All involved were caucasian. Durant said the group split up, with three or four continuing to chase Bobby Smith along the sidewalk of the plaza, toward Buster's. Two of the chasing group then caught up to him, and one and then another began to throw punches. Durant testified that after a few punches Smith went down, and one of his assailants tried to drag him by the arm into the parking lot. Failing this, the assailant then kicked Smith twice in the area of the head. At this point, the group scattered in various directions. Durant, who had sat in his car facing Buster's while these events unfolded, then saw more people come out of Buster's to find Smith on the ground. He went to the bank, made his deposit, and then waited around to give his statement to police.
In his decision, judge Cacchione points out the testimony of Durant's version of events "cannot be reconciled with that of any other witnesses." Outside of Durant's testimony, the court heard no evidence in regard to Bobby Smith being chased or grabbed by the arm once he had fallen to the ground, or that there were ever any females in the Comer/Ryan Smith group. Durant testified all involved were caucasian, yet, in the judge's words, Southwell is a "very dark-skinned black." And the clothing worn by those Durant saw beating Bobby Smith did not match that worn by Ryan Smith and Comer on that night.
In essence, what the judge decides is that there is a possibility Bobby Smith, the unluckiest man in Halifax that night, was beaten up twice, by two different groups of assailants, within a matter of minutes.
In his decision, judge Cacchione says he fully believes Durant's testimony, calling him the only "sober and disinterested person who was not inclined to favour or injure one side or the other" and points out Durant was the only witness to the beating to have his statement taken by police immediately after the fact. He writes that Durant's evidence raised reasonable doubt Ryan Smith and Comer were involved in the fight that Durant witnessed, and makes clear he believes "the fight Durant witnessed is the one that caused the deceased's death." Perhaps most interesting of all, he makes allusion in his decision to "other, unsolved swarmings in the area"—an apparent point of disagreement between the judge and Halifax police.
"Around the same time, I don't know if it was the same night or that weekend, there was another incident that occurred and initially investigators believed the two might be linked," says Halifax Regional Police spokesperson Jeff Carr. "But through the course of the investigation they were able to determine the two incidents weren't linked. actually identified and charged the people involved in the other incident and determined they weren't the same people involved in this incident."
Medical evidence had indicated Smith died from "subarachnoid hemorrhage" caused by multiple blunt-force blows—rather than one single blow—consistent with being struck in the head repeatedly in a fight. The deadly effect of these blows was their cumulative, rather than forceful, nature. His most serious single injury was three broken ribs, which were described as having been caused by a kick rather than a punch.
Based on the medical evidence, together with the testimony of Doug Durant, the judge found reason to believe the second beating, rather than the first, killed Bobby Smith, and the prosecution had failed to convince him all witnesses were describing the same event. Furthermore, he writes in his decision that "even if I am mistaken on this and Mr. Durant did witness the same fight as that described by the other Crown witnesses, on the totality of the evidence I am still left in a state of reasonable doubt as to which blows to the deceased caused his death." He found that Ryan Smith had only responded in self-defence when attacked by Bobby Smith outside the bar, and that he was therefore not guilty of the manslaughter charge, or anything else. He found that Comer, too, acted in self-defence, right up until the moment Bobby Smith went to the ground, when at least one final kick constituted common assault. In late September 2006, Comer was given a conditional discharge, with six months probation and 25 hours of community service, and ordered to provide a DNA sample.
From the time Bobby Smith was found on the pavement outside Buster's Bar, it took two years and three months for justice to reach a conclusion on what happened. Clearly, for Ryan Smith and Billy Comer, the outcome could not have been much better. From the time of their arrest, the spectre of lengthy prison time hung in the air. Media reports and general public opinion leaned heavily toward their guilt. In the summer of 2005, Comer was fired from a job for not telling his employer up front about the charges he was facing. Both had spent the days immediately following their arrest in remand and lived for more than two years under restrictive bail conditions.
For the family of Bobby Smith, the outcome of the trial could bring no sense of justice. In finding Ryan Smith and Comer not guilty, the judge accepted the possibility of an alternate theory of what happened and that some other, unknown person or persons are guilty. Yet as far as police and Crown prosecutors are concerned, their investigation led them to arrest and charge the right people and, unless some other compelling evidence is brought forward, the case regarding the death of Bobby Smith is closed.
Three years after the fact, whether it is solved is another matter entirely.
Brent Sedo is a freelance writer in Halifax.
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