Falls-area man’s long legal journey finally ends
Darren Gibson suffered brain injuries in assault while working out of town
An eight-year legal odyssey has finally came to an end for a 42-yearold former tradesman from the Niagara Falls area, who suffered a life-altering brain injury when he was assaulted by a part-time Ottawa student in town for the 2008 Queen’s University Homecoming festivities in Kingston.
Mackenzie G. McDonald, 27, finally pleaded guilty Tuesday to a charge of assault causing bodily harm to Darren Gibson, who at the time was the foreman for a tiling contractor working at a Canadian Tire store in Kingston.
McDonald stood trial twice previously on a charge of aggravated assault on Gibson and was found guilty by two different Frontenac County juries: in 2010 and again in 2013. He was also previously sentenced, on both occasions, by two different Superior Court judges, to two-years-less-one-day in provincial jail. But he never served any of it. His lawyer, John Hale of Ottawa, filed appeals on his behalf both times before sentence was even pronounced. Bail pending appeal was granted and both times the Ontario Court Appeal overturned both the jury verdicts and twice ordered new trials, most recently in November last year.
This time, assistant Crown attorney Elisabeth Foxton and defence lawyer Hale reached a resolution that involved reducing the charge from aggravated assault to assault causing bodily harm, as a summary conviction, allowing them to put forward a joint recommendation for community sentencing.
In order to accomplish that, however, Superior Court Justice Gary Tranmer had to reconstitute himself to exercise jurisdiction as a judge of a lower court.
He then accepted the joint position of the two lawyers, gave McDonald an 18-month conditional sentence to serve in the community, under house arrest; followed by six months of probation, subject to a 10 p.m. to 6 a.m. curfew; and 75 hours of community service.
Gibson, who was 34 when he was injured, came to Kingston from the Niagara Falls area to work on what was then a new Canadian Tire store under construction.
On Sept. 27, 2008, after a full day of work, he and his employer Gerard Traverse went downtown for supper and drinks. Traverse testified at McDonald’s first trial that he didn’t know it was Homecoming weekend for Queen’s University and wasn’t unaware of the weekend’s reputation for booze and bad behaviour.
McDonald, at the time a 19-yearold part-time Carleton University student, had come to Kingston with three friends for the party.
Around 2 a.m. on Sept. 28, 2008, both men ended up in the Subway restaurant at 358 Princess St., which was crowded with student revellers and noisy.
McDonald has always maintained Gibson cut into line ahead of him. But at least one witness at his trial thought Gibson might have been stepping out to read the menu boards on the wall and one of McDonald’s companions that night positioned their party toward the rear of the line, not the front.
According to the agreed statement of facts presented to Justice Tranmer, this time: “McDonald became upset and quite verbal toward Gibson, telling him with increasing intensity and profanity to go to the back of the line. Gibson ignored McDonald, acting as though he did not hear him.”
McDonald then “put his right hand on Gibson’s shoulder to get his attention.”
Crown prosecutor Foxton told the judge “according to some witnesses McDonald appeared to be more the aggressor than Mr. Gibson, while to other witnesses McDonald appeared overwhelmed by the situation and off balance.”
She continued, reading from the agreed statement, that “the initial pushing and shoving led quickly to Gibson ending up with his head under McDonald’s right arm, in a headlock.”
The agreed statement then references 29 seconds of the incident filmed by one of the patrons and notes that at the nine second mark McDonald can be seen releasing Gibson, who fell backward to the terrazzo tile floor.
Foxton said there’s no medical evidence as to how Gibson was rendered unconscious, but it appears the headlock may have cut off the blood supply to his brain, causing him to black out before he was released.
His head made a loud, sickening and unforgettable thud as it struck.
The agreed statement of facts reflects that some witnesses thought McDonald pushed Gibson off on the release and others thought he simply let him go. It also notes McDonald didn’t render any assistance to Gibson and left the Subway immediately.
Gibson sustained intracranial haemorrhages, and extensive cerebral contusions in the fall involving both his right and left frontal and temporal lobes and left occipital and parietal lobes, and wasn’t expected to live.
McDonald turned himself in Oct. 9, 2008, following a large-scale media release by Kingston Police that included a portion of the video recording.
Despite complications, including pneumonia due to mechanical ventilation, Gibson survived. The agreed statement notes he’s been left with permanent brain damage and has had to re-learn how to walk, talk and read. “To this day,” it states, “he has difficulty understanding and communicating, requiring longer time to process and converse as he has difficulty finding the right words.”
In addressing the judge, however, Gibson showed he’s still possessed of both dignity and grace.
He told Justice Tranmer everything he said in his previous victim impact statement about his difficulties remains true, “nothing has changed,” since it was submitted