WARNING

The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse­quences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 10 09 Court File No.: Windsor 22-Y8110073

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.G., a young person

Before: Justice S.G. Pratt

Heard on: 8 – 10 January, 9 April, 18, 24 July 2024 Reasons for Judgment released on: 9 October 2024

Counsel: Iain Skelton, for the Crown Ricardo Golec, for the Defendant

Pratt J.:

1The Defendant D.G. is charged with one count of Attempted Murder on the Complainant Nathaneal Butler-Robinson. The incident leading to the charge allegedly took place on 2 June 2022. The Crown contends the Defendant stabbed the Complainant and thereby intentionally tried to kill him.

2The Crown called several witnesses and filed several exhibits. I heard from civilians and police, and received several videos and photographs as well as documentary evidence. I did not hear from the Complainant or his girlfriend, Desiree Phelemba as they were not called by either party. It is their absence that has led to a Charter application that must be decided before I turn to the trial proper.

The Charter Application

The Charter Application

3At the close of the Crown’s case, counsel for the Defendant brought an application for a stay of proceedings based on the Crown’s failure to call the Complainant or Ms. Phelemba as witnesses. Evidence was called and submissions were made.

4In summary, the Defendant argues that the Crown’s failure to keep in contact with the witnesses (whom I will refer to hereinafter as “the missing witnesses”), and subsequent failure to call them at trial, amounts to lost evidence. He says the loss of that evidence was as a result of unacceptable negligence on the part of the state. That negligence proves a Charter violation. The appropriate remedy is a stay of proceedings.

5In the alternative, if there was no unacceptable negligence, the Defendant argues the conduct of the Crown amounts to an abuse of process deserving of a stay. In the further alternative, the Defendant argues his ability to make full answer and defence has been prejudiced by his inability to examine these crucial witnesses.

6The Crown responds by arguing that an absent witness does not equate to “lost evidence”. If it does, the loss was not the result of unacceptable negligence but was rather the result of the vagaries of trying to secure out-of-town witnesses for trial. The Crown argues it did what it could in the circumstances.

7Regarding abuse of process, the Crown points to the broad discretion it enjoys in deciding which witnesses it will call. That discretion is only reviewable to determine a potential abuse of process, which it says is not present here.

8Finally, the Crown says the Defendant has not shown actual prejudice to his ability to conduct his defence owing to the absence of the missing witnesses.

9As to remedy, the Crown opposes the granting of a stay of proceedings in the case that a breach has been shown. This is not, in the Crown’s estimation, one of the clearest of cases that necessitates ending the prosecution of a serious charge.

Issues

Issues

10There are several issues to be determined in this application. Using the Nova Scotia Court of Appeal’s roadmap in R. v. F.C.B. 2000 NSCA 35, [2000] N.S.J. No. 53 as a guide, the present issues are:

1. Does the absence of a witness in the circumstances before me constitute lost evidence?
2. If it does, was evidence lost in this case through unacceptable negligence?
3. If it was not, does the conduct of the Crown nonetheless amount to an abuse of process?
4. If it does not, has the Defendant shown that his ability to make full answer and defence has been prejudiced?
5. If the answer to issues 2, 3, or 4 is yes, what is the appropriate remedy?

11In my view, if the answer to issue 1 is no, the analysis comes to an end and the application must be dismissed. The rest of the issues are predicated on a positive answer to that question.

Issue 1: Does the absence of a witness in the circumstances before me constitute lost evidence?

Issue 1: Does the absence of a witness in the circumstances before me constitute lost evidence?

12The resolution of this issue requires resort to the caselaw and also to a consideration of the plain meaning of the term “lost evidence”.

13Courts have dealt with the notion of lost evidence for many years. It has generally been applied to tangible items, like counselling records, witness statements, or surveillance videos. There are no cases I can find, nor that I’ve been provided by counsel, that directly address the question of whether an absent witness is tantamount to lost evidence.

14To make this determination, I start at the beginning. The Crown has the obligation of disclosing all relevant evidence in its possession, subject to very narrow exceptions. As stated by Justice L’Heureux-Dube in R. v. O’Connor, [1995] S.C.J. No. 98 at paragraph 101:

Though the obligation on the Crown to disclose has found renewed vigour since the advent of the Charter, in particular s. 7, this obligation is not contingent upon there first being established any violation of the Charter. Rather, full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served: Stinchcombe, supra, at p. 333. For this reason, as I have already mentioned, although a disclosure order can be a constitutional remedy, the obligation on the Crown to disclose all information in its possession that is not clearly irrelevant, privileged or subject to a right of privacy undoubtedly has force independent of any violation of the accused's s. 7 rights. Because of the Crown's unique obligations, both to the court and to the public, it, alone, owes a duty to disclose to the defence. This duty does not extend to third parties. Similarly, the obligation upon the Crown to disclose all relevant material does not extend to records which are not within its possession or control. See, also, R. v. Gingras (1992), 71 C.C.C. (3d) 53 (Alta. C.A.).

15No one would dispute that the Crown in the present case had a duty to disclose any statements obtained from the missing witnesses. At the hearing of this application, I learned that a statement was taken from Ms. Phelemba and that utterances were made by the Complainant. This evidence was disclosed in accordance with the Crown’s obligations.

16The Defendant’s complaint lies not with the Crown’s failure to disclose evidence in its possession, but in its failure to maintain contact with the missing witnesses. By losing that contact, the Crown has denied the Defendant the ability to cross-examine them and potentially unearth evidence helpful to his defence.

17As I said, the Crown has disclosed the statement of Ms. Phelemba and the utterances of the Complainant. It is the loss of what they might have said at trial that troubles the Defendant. This brings up other points that can only be addressed through analogy.

18The Crown is correct that its disclosure obligation generally only applies to evidence in its possession or control. This has been a requirement dating back to R. v. Stinchcombe, [1991] 3 S.C.R. 326, and affirmed countless times since, including R. v. La, [1997] 2 S.C.R. 680. More recently, Justice Brown of the Ontario Superior Court of Justice said the same thing in R. v. Brounsuzian 2019 ONSC 4481. That limitation on disclosure to include only items in the possession and control of the Crown seems settled. But is it?

19In R. v. Downes [2022] O.J. No. 3410 (S.C.J.) Justice Nakatsuru cited several cases that supported a more expansive obligation. At paragraphs 95-96, His Honour considered the failure by police to seize third-party surveillance video. He noted:

Nonetheless, in some circumstances, a s. 7 violation resulting from "lost evidence" may occur despite the police not actually seizing or possessing the evidence. In Osman, at para. 22, Code J. found a violation of s. 7 where police failed to obtain certain surveillance footage at a nightclub; though never physically in the possession of the police, the police had seen it and requested a copy but failed to pick up the copy before it was overwritten. Code J. found the footage to be in the effective or constructive possession of the police. In R. v. Murray #6, 2020 ONSC 1495, at paras. 77-79, 119-123, Molloy J. found a violation of s. 7 where the police failed to copy and disclose relevant CCTV footage, regardless of the fact that the police only downloaded selected portions of the footage and did not seize or have possession of all of it.3 In R. v. Heddle, [2008] O.J. No. 2021 (S.C.), at para. 17, Harvison Young J. (as she then was) found a s. 7 violation where the police inadvertently failed to seize relevant restaurant surveillance video of an assault that they had viewed. See also: R. v. Nkemka, [2013] O.J. No. 3318 (S.C.), at paras. 46-47; R. v. Kish, 2011 ONSC 1243, at paras. 20-24; R. v. Dupuis, [2014] O.J. No. 1823 (S.C.), at paras. 8-10, 16-21; R. v. Chan, 2020 BCSC 189, at paras. 46-53.

In my opinion, whether the s. 7 "lost evidence" analysis applies is a fact-driven exercise. The normative question to be answered is whether the circumstances are such that the duty to preserve and disclose evidence should be placed upon the state. Most cases will be simple: for example, when evidence is seized by the police but is later lost or destroyed. Others, on the margins, will be more difficult. Inflexible tests such as actual physical possession should be avoided. Otherwise, the police will be incentivized to refrain from seizing relevant evidence or to inappropriately release evidence to avoid disclosure obligations.

20There is clearly some significant support for the notion that there is an obligation to seize relevant evidence that is not in the possession or control of the police. Failure to do so may result in a Charter breach.

21In the present case, the Defendant’s position would seem to equate a failure to seize something like a third-party surveillance video with a failure to keep tabs on a crucial witness. In both cases, he argues, the police have an obligation to ensure relevant evidence is available for trial. That the evidence is not in the possession or control of the state is immaterial. The obligation still remains.

22I am prepared to accept the notion put forward by Justice Nakatsuru above that evidence in the hands of third parties may sometimes be subject to a state obligation to seize and preserve. The question here is whether viva voce evidence, as opposed to something tangible, like a video, triggers the same obligation. Were the police under an obligation to preserve the evidence of the missing witnesses by maintaining current contact information for them?

23After much consideration, I come to the conclusion they were not.

24In my view, the nature of the thing to be preserved in the present case is fundamentally different from examples in the caselaw. A surveillance video or a counselling record is an objective, impartial piece of evidence that does not change. It is a physical item that can or should be secured and preserved. Conversely, the evidence the Defendant says is lost here is the potential testimony of the missing witnesses. There is nothing to be preserved or maintained. To the extent that there is, the police have done so. They took a statement from Ms. Phelemba and noted utterances from the Complainant. All were disclosed by the Crown. Put another way, all that could be preserved or maintained regarding the missing witnesses has been. I see no reasonable basis to impose an obligation on the state to preserve something as intangible as witness availability. Maintaining current contact information is obviously advisable but is not part of the Crown’s duty under Stinchcombe, La, or Downes. Finding otherwise would add an entirely new burden on the Crown that has never been envisioned by our courts.

25In the ordinary course, when a Crown witness cannot be located, the consequence is that the Crown must proceed without their evidence (unless, for example, a successful hearsay application is brought). The absence does not trigger a potential Charter breach; it simply weakens the Crown’s case.

26There is also the question of whether the evidence of the missing witnesses is truly lost at all. Unlike many of the cases in this area, there is no suggestion that either missing witness is deceased or otherwise permanently unavailable to testify. They simply could not be located for service. If indeed their evidence was crucial to the defence, there was nothing stopping the Defendant from seeking an adjournment to serve them himself.

27While I do not see an obligation to preserve witness testimony, I do wish to comment on the efforts to maintain contact with the missing witnesses made in this case.

28The offence date in this matter is 2 June 2022. The trial began on 8 January 2024, having been set in May 2023. I heard evidence from Glen Bacani, supervisor of the document services section of the Toronto Police Service, that the TPS received the subpoenas for the missing witnesses on 23 October 2023. Service was not attempted for either witness until December 2023. Neither witness could be located and the subpoenas were returned to the Windsor Police Service (or possibly forwarded to Halton Regional Police Service in Ms. Phelemba’s case) on 12 December in Ms. Phelemba’s case and 27 December in the Complainant’s case. Despite receiving the subpoenas in late October, no action was taken to attempt service for approximately six weeks. This was, according to Mr. Bacani, because of the workload of his department.

29PC Brandon Lyle also testified on the application. He met with the Complainant in hospital and noted the utterances I have mentioned. PC Lyle was asked if he was involved in obtaining or updating contact information with the Complainant. He said he was not.

30PC Scott Bennett spoke to Ms. Phelemba in the aftermath of the incident. In the course of taking a statement from her, he learned she and the Complainant were from the Toronto area. He also obtained her cell phone number. He said he “probably” asked her for her address in Toronto but had no note of any response. He was not involved in contacting Ms. Phelemba after the day he met her.

31While Mr. Bacani testified that his department was provided addresses for both missing witnesses by the Windsor police, I heard no other evidence as to how those addresses were obtained. Neither officer called on the application obtained any contact information other than PC Bennett learning Ms. Phelemba’s cell phone number. I heard no evidence of any attempts in the months after the incident to contact either missing witness.

32Further, this matter was set for trial in May 2023. Subpoenas were not sent to Toronto for service until October. They were not acted upon until early December, barely a month before trial.

33Perhaps unsurprisingly, neither missing witness could be located. By December 2023, eighteen months had passed since the incident. I have no evidence of any contact with them in the interim.

34While I do not find an obligation on the state to maintain contact with witnesses, it is my hope this case will be instructive to authorities that efforts should be made to do so, especially when those witnesses live outside the jurisdiction. The workload for all justice system participants is heavy, I do not dispute that. But, if indeed no contact was made with the missing witnesses from June 2022 until attempts at service were made in December 2023, it seems to me the state was risking this very problem.

35Finally, on the point of this case being instructive to the parties, I find the Crown could have done a better job of updating the defence on their witness situation. Counsel sent an email advising that while the Complainant could not be located, the Crown would proceed in any event because “[t]he stabbing was witnessed by two other witnesses who have been served to attend court.” Counsel for the Defendant was entirely reasonable in assuming those two witnesses were Mr. Parent and Ms. Phelemba. The other “eyewitness” mentioned in the Crown’s confirmation hearing form, the taxi driver Muhi Haddad, testified that he did not witness any stabbing. It makes sense, therefore, that counsel would have made the assumption he did, and that he was surprised when the Crown closed its case without calling Ms. Phelemba. But then, when he received the email, he could have simply asked who the two witnesses were. More open communication from both counsel could have corrected misapprehensions early on.

36The remainder of the issues to be decided in this application were all predicated on finding the missing witnesses to be tantamount to lost evidence. I have found their absence is not a case of lost evidence. Consequently, it is not necessary for me to consider the other issues. I find the Defendant has not proved a breach of his ss. 7 or 11(d) Charter rights. The stay application is dismissed.

The Trial

The Trial

37I turn now to the merits of the case.

38In all criminal trials, the accused is presumed innocent. He or she maintains that presumption unless the Crown is able to prove guilt beyond a reasonable doubt. There is never any burden on an accused to prove their innocence.

39The primary, though not exclusive, issue in this case is identity. Has the Crown proved beyond a reasonable doubt that it was the Defendant who unlawfully stabbed the Complainant? To answer that question, the Crown relies on extensive video evidence.

40The first videos come from the Devonshire Mall food court. Specifically, there is a video from the Thai Express restaurant, and two others from mall security. They depict the area in front of the Thai Express and the area near the A&W restaurant. All show the same event but from different perspectives. The mall security videos both start at approximately 4:12pm. The Thai Express video starts at 3:49pm. PC Soufane testified that when she obtained the Thai Express video, she viewed their live security feed and checked the time stamp against the current time on her phone. She determined the video system to be 22 minutes behind the actual time. If that is correct, and I have no reason to find otherwise, 3:49pm on the Thai Express video would be equivalent to 4:11pm on the mall security videos. I’m satisfied that all three videos show the same events from the same time period.

41There are two main actors. One is a white male dressed in black (I’ll refer to him as Male 1) and the other is a black male dressed primarily in red (I’ll refer to him as Male 2). The Thai Express video shows Male 1 interact briefly with a Thai Express employee, and then pace back and forth in front of the restaurant. He appears to be speaking into his cell phone and holding a small plastic bag in his left hand.

42Male 2 goes to the A&W counter where he speaks briefly with someone. He then leaves the counter and paces around. He seems to spy Male 1 and approaches him. They begin speaking. Male 2 starts pointing towards Male 1 and edges closer to him. He eventually gets perhaps a foot away. They seem to be talking, with Male 2 gesturing. Male 1 backs away and is followed by Male 2. Male 1 then extends his right arm and touches Male 2’s chest with his phone. Male 2 then swats Male 1’s cell phone out of his hand. It falls to the floor. Male 1 immediately reaches to the rear of his waist on his right side. Male 2 continues to advance, leading to Male 1 dropping his bag. Male 2 turns and walks away. Male 1 picks up his cell phone and bag and resumes his phone conversation. After a few seconds, he walks out of the frame in the same direction as Male 1 went.

43The story picks up outside the mall. Security video shows Male 2 exit the mall and walk west. He is quickly followed by Male 1. Male 1 runs up behind him and punches him in the back of the head with his right hand. Male 1 then runs away to the south. I pause to note that, contrary to defence submissions, Male 1 seems to have no difficulty running without holding his pants up. Male 2 walks after him. They soon start walking towards each other, with Male 1 again holding his right hand at his rear waistband. Once they get within about 20 feet of each other, Male 1 turns and starts walking south again. Male 2 walks after him. Both parties continue south, with Male 1 turning back appearing to say something to Male 2, until both walk out the bottom of the frame at 4:16pm.

44The video from the Thai Express itself is very helpful to me on the issue of identity. It is a high-quality, colour video. For approximately 70 seconds, Male 1 is facing the camera. His face is completely visible. He is wearing a black hoodie with white Champion branding across the chest. It has a light-coloured fabric on the interior of the hood. His baseball cap is all black except for what appears to be a reflective sticker on the brim and a small white mark at the left temple area.

45The Crown has argued that I must be satisfied Male 1 is in fact the Defendant. If I am not, I cannot find the Defendant guilty. The Crown’s theory is that Male 1 (the Defendant) is the same male seen in a later video at the time of the alleged stabbing. If I do not find Male 1 to be the Defendant from the mall videos, there is no basis for me to find he is the male in the later videos.

46I have heard no independent evidence on the issue of identity. It falls to me to consider the issue pursuant to the principles of R. v. Nikolovski, [1996] 3 S.C.R. 1197. In that case, the trial judge used her own identification of an alleged convenience store robber, by comparing surveillance video of the crime with the person before the court, to find the Crown had proved identity beyond a reasonable doubt. Though that finding was overturned by the Court of Appeal for Ontario, it was restored by the Supreme Court of Canada.

47While I agree with counsel that Nikolovski allows me to consider the video evidence and compare it to the Defendant before me, there is, I think, an important distinction in this case. Finding that Male 1 is in fact the Defendant does not lead inexorably to a finding of guilt. It only puts the Defendant at Devonshire Mall, in conflict with Male 2, at the relevant time. Because the consequence of finding Male 1 to be the Defendant is not dispositive of guilt, the concerns associated with this comparison are perhaps somewhat assuaged. I recognize, however, that finding Male 1 to be the Defendant is a crucial link in the chain the Crown argues connects him to the stabbing. As a result, I approach this assessment with the care recommended by Justice Cory at paragraph 30 of Nikolovski.

48I have reviewed the videos from Devonshire Mall, in particular the video from the Thai Express. As I said, that video is high quality and in colour. It shows Male 1’s face clearly for approximately 70 uninterrupted seconds. It is clear enough that I can see he pays for his order with a $20 bill. I have viewed the video and seen the Defendant in court. I have no hesitation finding that the Defendant is Male 1.

49I have also viewed the videos and photographs to consider the identity of Male 2. In addition to the videos I have already mentioned, Male 2 is seen in another video entering a taxi. I have viewed what he was wearing at the mall and compared it with the bloodstained clothing recovered after the incident. I find Male 2 to be the Complainant.

50The Crown filed additional videos taken from Devonshire Mall that day. I will summarize them chronologically.

51First, there is a video of the mall parking lot. It begins at 4:59. A small four-door silver vehicle with a sunroof and star-shaped hub caps is seen moving through the lot. It has distinctive tail lights that are much narrower on the trunk lid than they are on the body of the vehicle. It appears to park in the lot and remains parked for the duration of the video. At approximately 5:14, a person emerges from the vehicle and at 5:14:57 walks towards the mall. The person is dressed entirely in black.

52At 5:15:37, a male is seen on another camera entering the mall. This camera shows what was described as entrance vestibule 4. PC Arevalo, then a mall security officer and now a police constable, confirmed the silver vehicle was parked near this particular mall entrance. The male is wearing black pants, shoes, and hoodie with the hood over his head. He is also wearing a light-coloured surgical mask. There appears to be a small white mark on the left chest area of the hoodie. For simplicity, I will refer to him as Male 3.

53Videos from the north end of the mall, near the Globo shoe store and BB Branded store, begin at approximately 5:59pm. They show the Complainant and a female enter the BB Branded store. Within a few seconds of them entering the store, a person is seen entering the frame. The person is dressed entirely in black, including a black hoodie with the hood over his head, and is wearing a light-coloured surgical mask. A light mark on the left chest of the hoodie is visible. Having viewed this video and all others where this person appears, I find as a fact that the person who entered through vestibule 4 and whom I’ve identified as Male 3, is the same person who is later seen outside the Globo and BB Branded stores. He is talking on a cell phone. He walks past the Globo Shoe store, opposite BB Branded. He enters the Globo and exits about a minute later. He sits down in the seating area between Globo and BB Branded, where he remains for about ten minutes. He exits the frame at 6:12 and re-enters at 6:14. He exits the bottom of the frame for about a minute but then returns and walks past the Globo and BB Branded stores to the top of the frame. He is seen pacing back and forth.

54A second video begins at 6:22. It is from the same camera and shows Male 3 entering the frame from the bottom at 6:23. He again sits down in the seating area between Globo and BB Branded. At that time, while he is seated, the Complainant and the female emerge from BB Branded. They stop outside the store briefly and then go back in at 6:24. Male 3 remains seated until 6:25, when he gets up and walks to the top of the frame.

55A video of the Ring-O-Lings kiosk picks up at 6:25. This camera faces the same direction as the Globo camera but is farther to the south, going by the diagram of Devonshire Mall filed as an exhibit. Male 3 is seen walking back and forth. He appears to have a drink with him, which he sets down on the kiosk counter. As he paces around, he goes back to his drink periodically. At 6:29, the Complainant and female walk through the frame from the bottom to the top. Two minutes later, Male 3 stops pacing around and follows.

56The identity of the female was not disputed at trial. I find the female in the Complainant’s company throughout much of this incident to be Desiree Phelemba.

57Another video depicts the entrance area of the Traveler’s Choice motel on Sandwich Street. According to the time stamp on the video, it begins at 7:03pm. It shows the covered driveway of the motel, two motel room doors on the right side of the screen, and a small portion of Sandwich Street on the left side. Just as she did with the Thai Express video, PC Soufane checked the accuracy of the time stamp in this video by viewing the live security video at the motel and checking its time stamp against the time on her phone. She determined the motel video time stamp to be one minute behind the actual time. I don’t believe anything turns on a one-minute difference in the context of this video.

58The video shows a taxi arriving at the motel at 7:04:55. It enters the motel courtyard. Within seconds, a small silver vehicle very similar to the one seen at the Devonshire Mall parking lot is seen parking on Sandwich Street just past the motel driveway. It has the same star-shaped hub caps and the same distinctive tail lights. Two males exit the rear doors of the vehicle. Both are dressed entirely in black sweatsuits. The male from the rear driver’s side has white writing across his chest. The male from the rear passenger’s side has a small white mark on the left side of his hoodie’s chest area. Both are wearing surgical masks. The male with white writing on his chest has something small in his right hand, which he seems to place in the front waistband of his pants. At first the two start to walk up the driveway but stop suddenly and stay on the sidewalk. At that point, a person dressed in red is briefly seen in the motel courtyard. Based on the evidence I’ve heard about where the Complainant was found, I can find that person was the Complainant.

59Once the two males exit the silver vehicle, it drives away. After they momentarily stop at the sidewalk, the two males enter the motel courtyard, walking from left to right in the frame. They exit the right side of the frame at 7:05:16.

60At 7:05:32, the taxi exits the courtyard. At 7:05:50 the two males in black run out of the courtyard. Each is holding a small object in their right hands. They run under the covered driveway and turn right on the sidewalk.

61A final video came from the apartment building next to the motel. Specifically, it shows the parking area of the property. The motel driveway can also be seen in the background. The video begins, according to the time stamp, at 7:12pm. Jeffrey Senay, property manager of the apartment building, testified that the time may be off by a few minutes. The video shows a small, four-door silver vehicle with a sunroof, star-shaped hubcaps, and distinctive tail lights turning around in the parking lot. This is obviously the same vehicle that just dropped off the two males. It then moves forward to the mouth of the driveway, facing Sandwich Street. At 7:13:08 on the video, the taxi can be seen leaving the motel driveway. At 7:13:28, while the taxi is still waiting for traffic to clear, the two males in black are seen running from the motel onto the sidewalk. They go to the silver vehicle and enter the rear seats, each returning to the seat they’d earlier vacated.

62Has the Crown proved the Defendant is one of the males in black seen at the motel?

63The identifying features of the Defendant, whom I have already found was Male 1 seen in the earlier Devonshire Mall videos are as follows:

(1) He has a slim build and is dressed entirely in black, wearing black, narrow sweatpants, a black hoodie, black shoes, and a black baseball cap; (2) The hoodie has the word “Champion” written in large white letters across the chest; (3) The baseball cap has a reflective sticker on the top side of the brim; and (4) His black shoes have white markings near the soles.

64The male at the motel who exited the rear driver’s side of the silver vehicle has the following notable features:

(1) He has a slim build and is dressed entirely in black, with narrow sweatpants, a black hoodie, black shoes, and a black baseball cap; (2) His hoodie has writing in large white letters across his chest; (3) His black shoes have white markings near the soles; and (4) His black baseball cap appears to have a reflective sticker on the top side of the brim.

65The only real difference I can see between the Defendant and the male from the rear driver’s side of the vehicle is that the male at the motel is wearing a surgical mask. His appearance is otherwise identical.

66Regarding the other male, I note that he bears a striking resemblance to Male 3. Again, he is dressed all in black with a surgical mask. He appears to be the same build. Male 3’s hoodie had a small white mark on the left side of the chest. The second male at the motel has a small white mark at the same spot on his hoodie.

67Given the proximity in time to the incident at the mall between the Complainant and Defendant, and the obvious, nearly identical appearances of the Defendant and the first male at the motel (save for the surgical mask), I find as a fact it was the Defendant who emerged from the rear driver’s side of the silver vehicle at the motel and entered the courtyard, and who ran in the opposite direction moments later.

68To be clear, I am not comparing the Defendant before me to the male in the motel video. The male in the video has his face obscured by the mask. Finding that the male in the motel video is the Defendant is not a Nikolovski identification. It is a direct comparison of the Defendant from the mall videos and the male in the motel video. I find as a fact they are the same person. I will have more to say on this point later in these reasons.

69It is not necessary for me to make a final determination on whether the second male at the motel was Male 3. That said, again, comparing the appearance of Male 3 and the second male at the motel leaves little room for uncertainty. It is an entirely reasonable inference that Male 3 was observing the movements of the Complainant at the mall as he walked in circles and paced back and forth outside the store the Complainant had entered. When the Complainant finally left the store, Male 3 followed. As well, Male 3’s entrance to the mall corresponds nearly to the second to a male dressed in black exiting a small, four-door silver vehicle in the parking lot and walking towards the mall.

70The identification of Male 3 as the same male seen at the motel is not an element of the offence charged. I do not, therefore, have to be satisfied with that identification beyond a reasonable doubt. I will have more to say about circumstantial evidence later in these reasons, but for now I will say I have little difficulty making the finding that Male 3 is the same person who exited the silver vehicle at the motel from the rear passenger door. As this is not an element the Crown must prove, it need not be the only reasonable inference available to be drawn from the evidence. Rather, I find it is simply a reasonable inference. For this piece of evidence, that is enough.

71I have found it was the Defendant seen in the motel video. After having a significant conflict with the Complainant at the mall, the vehicle he was in followed the Complainant to the motel. He and another male exited the vehicle and entered the motel courtyard. Seconds later, with small objects in their hands, they ran from the courtyard, down the street, and re-entered the silver vehicle as it waited for them next door.

72The question that remains is, what happened in the courtyard?

73I have no evidence from the Complainant or Ms. Phelemba. While the Complainant’s utterances and Ms. Phelemba’s statement were part of the evidence on the voir dire, they are not part of the evidence on the trial itself. I remind myself I can make no use of them in determining the outcome of this case.

74The evidence I can consider from the courtyard comes from several sources: the taxi driver Muhi Haddad, Mark Parent and Karrie Foesenek, neighbours, and the photographs taken by police in the aftermath of the incident.

75Mr. Haddad testified to picking up a fare at the mall and taking his passengers to the motel in the 3600 block of Sandwich Street. He said he dropped them off in what he called a field, which he described as a square cement area with motel rooms arranged around it. It is clear he is describing the Traveler’s Choice motel and its courtyard.

76After the passengers exited his taxi, Mr. Haddad said he saw two figures, dressed in black with hoods covering their faces, run into the courtyard. He thought it looked like they knew the passengers. He was in the process of exiting the motel property and heard the male passenger screaming. The same two people in black he’d seen entering the courtyard then ran out and turned right on Sandwich. Mr. Haddad pulled onto Sandwich but stayed in the area. He said he was later contacted by his company and told to call the police about a crime that had occurred.

77Ms. Foesenek lived in the area with her family. On the night in question, she had visited a nearby convenience store and was walking back to her home. Her route took her past the motel. She testified to hearing screaming from a man and a woman as she walked by. To her, it “sounded like someone pleading for their life”. When she looked into the property, she saw a male on the ground and a woman screaming. She also saw two people she described as teenagers speed-walking out of the motel. She said each was wearing a jogging suit and a surgical mask. One turned to look at her, but she couldn’t see his face because of the mask. She saw the two go right on Sandwich and enter the rear doors of a grey vehicle parked in the driveway next to the motel. She posited that they were wearing grey jogging suits, but couldn’t really recall the colour with confidence. She saw that one of the two had something in his hand, but she couldn’t say what it was.

78In cross-examination, Ms. Foesenek agreed she couldn’t say conclusively the two were teenagers. To her, they looked young, as she said, “like high school kids”.

79After they left, she told her husband what had happened and asked him to call 911. In the end it was she who called for help as her husband went to assist the man on the ground.

80Mark Parent was a resident of the apartment building next door to the motel. This is not the apartment building managed by Mr. Senay; Mr. Parent’s building is on the opposite side of the motel. As he said his apartment faced east, it seems clear his building was to the west of the motel, while that other building was to the east.

81Mr. Parent said he lived on the third floor of the building, which was the top floor. He was in his apartment at around 7pm. He had turned in for the night and was watching television when he heard a woman scream. At first, he didn’t react but then the screaming got louder. He got out of bed and looked out his window.

82His apartment window overlooked the motel courtyard, but the view was partially obscured by trees. He could see four people, three males and one female. Two of the males were dressed entirely in black jogging suits with masks on their faces. To him, it appeared the males in black were trying to get into a confrontation with the other male and female. He differentiated between the males in black by identifying one as standing to the left and one to the right. The male on the left was trying to grab the male Mr. Parent called the victim. The male on the right had a knife in his hand. Mr. Parent described the knife as being about 6-7” long and looking like something a chef or a butcher would use. While the victim screamed no, please don’t over and over, Mr. Parent saw the male on the right make multiple upward stabbing motions towards him. He described the knife going backward and forward. He could see clearly enough that he saw the curvature of the knife blade facing upwards. Throughout, the female was also screaming no, no, no.

83When asked if he saw the knife make contact with the other male, he said he did not as there was a tree blocking his view.

84Mr. Parent called 911 immediately. Police arrived, he said, in about seven minutes. The ambulance arrived shortly after that, at which point he closed his blinds. He confirmed it was still bright daylight when all this took place.

85He also testified to another vehicle showing up at the motel perhaps two minutes after the altercation. It was a grey vehicle with two people inside. He said the passenger asked the female what had happened. She said the male had been stabbed. It seemed odd to Mr. Parent that someone would show up and ask that question immediately after the incident. He wondered if they were connected to the events in some way.

86In cross-examination, Mr. Parent said the motel was known to be a place frequented by drug users and who he described as “riff raff”. It was because of that history that the female’s first scream didn’t really stand out to him. Her second scream, which he called a shriek, got him to the window.

87He said he couldn’t see the victim clearly as there was a tree in the way. He confirmed seeing the two males in black. They were standing in profile to him so he could not see if there was any writing on their clothing. At no point did they face Mr. Parent.

88Regarding this other vehicle that arrived after the stabbing, he said it looked like an older vehicle, and that it had a matte paint job that did not look professionally done. The two males inside looked scruffy. He called them “Duck Dynasty types”.

89I accept the evidence of Mr. Haddad, Ms. Foesenek, and Mr. Parent. All were impartial, with no connection to any of the parties. I find each did their best to tell the truth and made no attempt to embellish or spin their evidence. Ms. Foesenek, for example, conceded in cross-examination that the boys she saw may have been 19 or 20 years old, and not teenagers. Mr. Parent freely admitted he did not see the knife wielded by an assailant make contact with the victim as his view was obstructed. Each witness provided useful evidence in a candid way, and none had their credibility or reliability shaken despite skilled cross-examination.

90The Crown also filed several photographs of the courtyard. They show bloodied clothing on the ground, as well as a plastic shopping bag from BB Branded and two white running shoes. They also show a fire extinguisher on the ground outside Room 19. It appears from the photo that the extinguisher had been removed from the case mounted to the exterior wall of that room, to the left of the door. Also on the ground were pieces of broken glass. The case also had shards of broken glass leaning against its frame. It’s reasonable to conclude the extinguisher was removed quickly from the case, breaking the glass. Also on the ground is a card from the fire extinguisher company. This paper card still being nearby lends support to the idea that it, the glass, and the extinguisher all landed on the ground a relatively short time before the photo was taken. One of the white shoes is also in that area, though the second is a significant distance away and near the bloodied clothing.

91Finally, there is a photo of a baseball cap. It is on the ground. PC Michael Armaly, who took all the photos, said it was seen in the north side of the courtyard, behind the motel office. He testified to it being a red and white Toronto Blue Jays cap, though the photos are of the underside of the cap, and it appears from that angle to be primarily black with red on the brim. Looking at the Devonshire Mall video of Thai Express, and at the taxi video, it appears the Complainant was wearing a Toronto Blue Jays cap on the day of the incident and that it was primarily black. Comparing that video evidence with the photographs, it would seem the cap found at the motel is the same cap worn by the Complainant.

Analysis

Analysis

92The first issue to be determined in this case is identity. Has the Crown proved the Defendant is one of the males seen at the motel?

93As I have stated earlier in these reasons, I find as a fact that Male 1 is the Defendant. I have also found the male who exited the silver car from the rear driver’s side is the Defendant.

94To be abundantly clear on the issue of identification, I will again review the bases for those findings.

95I have found the Defendant was the person with whom the Complainant had a conflict at Devonshire Mall. There was an altercation near the Thai Express restaurant between the Defendant and the Complainant. This is seen in both Thai Express videos and in the A&W video. Moments later, the Defendant followed the Complainant and struck him from behind. This is seen in the exterior mall entrance video. As I have stated, the video from the Thai Express itself (not the mall security video) provided ample opportunity for me to see the face of the male in black. I have compared that person to the Defendant before me. Taking the care directed by the Supreme Court in Nikolovski, I find they are the same person.

96The identifying features of the Defendant at the mall are:

(1) He is a white male, with a slim build; (2) He is dressed in black, narrow-fitting jogging pants, a black hoodie, black running shoes, and a black baseball cap; (3) The hoodie has the word “Champion” written across the front in white letters; (4) The cap has a reflective sticker on the top side of the brim; (5) The running shoes have a white swoosh emanating from the soles and extending upwards.

97The identifying features of one of the males in black who is seen entering the motel courtyard are identical to the Defendant’s, save for the white writing on the hoodie not being legible in the motel video, and the person in the motel video wearing a surgical mask. The addition of a surgical mask is not evidence this is a different person; masks have been ubiquitous in society since 2020. In every other way, the appearance of the motel male matches the Defendant. Counsel for the Defendant argued the male at the mall could barely run without holding his pants up, unlike the male at the motel. Respectfully, I do not see that in the mall videos. The only time the Defendant touches the waist of his pants is when he’s engaged in a confrontation with the Complainant. His motion seems more in line with miming that he had a weapon in his waist than with trying to hold his pants up.

98The defence filed an affidavit, admitted on consent, where the deponent spoke of how common the Champion brand is. I accept the brand is common. Taking all the identification evidence in totality, however, as I’m required to do, I find that point does not change my conclusions. It is the fact that both the Defendant at the mall and the male at the motel have obvious, large white writing across their chest that links them. What that writing says is not especially relevant.

99As I’ve already noted, the other male bears a striking resemblance to the male seen at the mall after the altercation and waiting outside a store the Complainant had entered. Given the circumstances of his conduct at the mall and the level of similarity between him and the second male in black at the motel, I am satisfied they are the same person.

100Mark Parent testified to seeing two males dressed entirely in black with hoods over their heads confronting someone in the motel courtyard. After the confrontation, they exited the motel property. Motel video shows them run down the driveway and turn right. Ms. Foesenek saw them. She saw, and the apartment video confirmed, the two getting into the rear of a waiting silver vehicle.

101Is it possible that other assailants, unrelated to the Defendant, immediately showed up at the motel to confront the Complainant? As the faces of the males at the motel cannot be seen, I concede it is possible. That does not end the issue.

102The Supreme Court of Canada, in the case of R. v. Villaroman [2016] SCC 33 discussed the proper use of circumstantial evidence. To prove their case, the Crown must show that guilt is the only reasonable inference available to be drawn from the evidence. It does not need to be the only possible inference. I must consider all surrounding circumstances and determine if the Defendant’s culpability is the only reasonable inference I can draw.

103Those circumstances are:

(1) The Defendant and Complainant engage in two altercations at Devonshire Mall. In the first, the Complainant knocks the Defendant’s phone out of his hand. In the second, the Defendant strikes the Complainant from behind; (2) The Complainant is the initial aggressor in the first altercation; (3) The Defendant is dressed as I’ve already noted; (4) After the altercations, another male exits a silver four-door vehicle and enters the mall. He is seen variously pacing and sitting outside a store the Complainant had entered; (5) When the Complainant leaves the store, the male follows him; (6) The Complainant and a female enter a taxi and leave the mall, going to the Traveler’s Choice motel; (7) Within seconds of their arrival at the motel, a small, four-door silver vehicle pulls up on Sandwich Street. This vehicle appears identical to the one seen in mall security video entering the mall parking lot, and from which the second male emerged; (8) Two males dressed in black exit the vehicle and enter the motel courtyard. One is nearly identical to the Defendant and the other to the second male at the mall; (9) Both males are seen by Mr. Parent confronting the Complainant. Mr. Parent sees a male with a knife make multiple upward stabbing motions while the Complainant and Ms. Phelemba scream “no”; (10) The males are seen by witnesses and security video leave the motel property and re-enter the silver vehicle.

104Taking all the circumstances into account, I find the only reasonable inference is that the Defendant was one of the males who confronted the Complainant in the motel courtyard. The notion that someone else, coincidentally dressed like the Defendant and accompanied by someone else coincidentally dressed like Male 3, would arrive in a car identical to the one Male 3 exited at the mall, would pick that moment to attack the Complainant is not reasonable. I am reminded of the principle behind Occam’s Razor: sometimes, the simplest explanation is the correct one. The Defendant fought with the Complainant at the mall and sought to continue that fight at the motel. That is the only reasonable inference available to be drawn from the evidence.

105In my view, the attendance by the other individuals, described by Mr. Parent as “Duck Dynasty” types, does not change my analysis. There was no evidence to suggest who these people were or what connection, if any, they had to any of the parties. For me to assign them any importance would require bald speculation.

106Counsel for the Defendant argued there are gaps in the evidence. Certainly, the absences of the Complainant and Ms. Phelemba are significant. Further, I agree with counsel that reasonable doubt can be based on evidence or on a lack of evidence.

107One of the gaps counsel argued regards the Defendant’s knowledge. He correctly noted the Defendant was seen leaving the mall property after the second altercation. I have no evidence of him returning after that. How, counsel argued, can I connect him to events that took place afterward if he was nowhere to be seen? There is no evidence that connects him to what happened subsequently.

108Counsel’s concern is addressed by the appearance of Male 3 and a holistic view of all the surrounding circumstances. I have found that Male 3 was one male at the motel. I have found the Defendant was the other. That is the connection counsel argued does not exist. Male 3 enters the mall after the altercations and seems to be tracking the movements of the Complainant. Seconds after the Complainant arrives at the motel, he and the Defendant exit a vehicle and confront him. The Crown does not have to prove the existence of a detailed plan or of communications between the Defendant and Male 3. The evidence shows they were working in tandem.

109I have also considered the position of the fire extinguisher and broken glass in the motel courtyard. As I said, it seems these items may have come to be where they were found shortly before the photos were taken. I really cannot say anything more than that. I have no evidence that the extinguisher was touched by anyone involved in the conflict. Mr. Parent did not see anyone with it. I cannot say when the extinguisher was removed from its case. I can see from the photo that the hose is still clipped to the body of the extinguisher. It does not appear anyone tried to use it. As counsel pointed out repeatedly, this is a motel with something of a shady reputation. It’s not beyond the range of possibility that some other incident took place that evening that resulted in the extinguisher, glass, and card being on the ground. Beyond that, the two males enter the courtyard at 7:05:11, and run out at 7:05:50. I question whether there was even sufficient time for one of the parties to go to the case and forcefully remove the extinguisher before Mr. Parent took up his observation. In the absence of any evidence other than general proximity connecting it to the incident, it would be speculative for me to find an air of reality to a claim of self-defence based solely on the fire extinguisher. Add to that the fact that Mr. Parent never saw the recipient of the stabbing motions take any action against his assailants, but rather only that he was being held while screaming “no, please don’t”, and any suggestion of an air of reality to a claim of self-defence must surely fail.

110In the result, I find the Defendant went to the motel to confront the Complainant. He went with an accomplice who had tracked the Complainant’s movements at the mall. He was armed with a knife. He found the Complainant in the courtyard and attacked him with the knife. This was witnessed by Mr. Parent. As the Complainant and Ms. Phelemba screamed for him to stop, he repeatedly struck the Complainant with the knife.

111I pause to note my finding that both individuals in black at the motel appeared to have objects in their hands when they ran away. Mr. Parent only testified to seeing one of them making the stabbing motions. Had it been argued that the Crown had not proved beyond a reasonable doubt that it was the Defendant who stabbed the Complainant, rather than that he’d merely held the Complainant while the other male stabbed him, I would have found the distinction irrelevant. Both males are equally culpable for the attack on the Complainant.

112To prove the charge of attempted murder, the Crown must prove beyond a reasonable doubt that the Defendant had a specific intent to kill the Complainant. It is not sufficient that he intended bodily harm or even to endanger the life of the Complainant. He must have intended to kill the Complainant. A failure to show that intent to the criminal standard will result in an acquittal on the charge.

113Based on all the evidence, I cannot find beyond a reasonable doubt that the Defendant had the requisite intention to kill the Complainant. Going back to the law of circumstantial evidence, that intention is certainly a reasonable inference. It is not, however, the only reasonable inference available to me. The Defendant may only have intended to injure the Complainant. The Crown conceded several of the injuries were superficial lacerations, though one did penetrate the biceps muscle. There is no evidence of what the Defendant may have said during the incident that could have cast light on his intentions. Bearing in mind the nature of the injuries and the lack of other evidence of intent, I find I cannot conclude beyond a reasonable doubt that the Defendant had a specific intention to kill the Complainant.

114Counsel are in agreement that even if I acquit the Defendant of the charge as laid, there are included offences I must consider if I find him responsible for attacking the Complainant.

115Counsel agreed that aggravated assault is not one of those included offences. The information alleges the Defendant “did attempt to kill by stabbing” the Complainant. Counsel for the Defendant argued that since the information did not include the words wound, maim, disfigure, or “endanger the life”, aggravated assault is not included. Without particularizing the count in this way, the Crown cannot rely on aggravated assault as a fallback position. The case of R. v. McKinnon [2021] O.J. No. 6238 (S.C.J.), a decision of Justice Copeland (as she then was) confirms that the inclusion of aggravated assault as an included offence on a charge of attempted murder is not automatic. Her Honour referred to R. v. Pelletier 2012 ONCA 566, [2012] O.J. No. 4061 (C.A.) a decision of Justice Watt from the Court of Appeal for Ontario. In that case, Justice Watt amended an attempted murder indictment to include the phrase, “by shooting him with a gun, thereby wounding him”. His Honour found that such an amendment was necessary to uphold the trial judge’s finding of guilt for aggravated assault as an included offence.

116As the current information does not specify wounding, maiming, disfiguring, or endangering life, I agree that aggravated assault is not an available included offence.

117That said, the words “did attempt to kill by stabbing” are sufficient, in my view, to find assault causing bodily harm to be an included offence. There is no issue as to causation, as argued by counsel for the Defendant. The Complainant’s injuries were clearly and obviously caused by the actions of the Defendant. Those injuries resulted in a significant loss of blood, as seen in the motel photographs. They had to be sutured by hospital staff. The injuries are clearly more than trivial or transient in nature. They amount to bodily harm.

118I find the Defendant stabbed the Complainant with a knife several times in the courtyard of the Traveler’s Choice motel. He intentionally caused significant injury in doing so. There is no defence or excuse available to him that would justify his actions.

119The Defendant is found not guilty of the offence of attempted murder. He is found guilty of the included offence of assault causing bodily harm.