WARNING

The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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.

129. 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. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Court Information

Court File No.: Central East - Newmarket 4911-998-11-Y1243-02

Date: 2013-08-01

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— AND —

V.E., a young person

Before: Justice Richard Blouin

Heard on: January 11 and 17, 2013, March 27, 2013, April 5, 2013 and May 30, 2013

Reasons for Judgment released on: August 1, 2013

Counsel:

• J. Pearson, for the Crown
• M. Owoh, counsel for the defendant V.E.

BLOUIN J.:

Introduction

[1] V.E. stands charged that on November 2, 2011, he committed the offences of Use Imitation Firearm to rob Mohammed Gebril of cellular telephones, and Fail to Comply with a Recognizance.

[2] The Crown called two police officers (the evidence of a third was admitted by way of an agreed statement of facts) and the complainant. V.E. testified in his defence. The case reduced to the Crown presenting evidence that suggested the defendant's involvement in a home invasion robbery, and the defendant maintaining that he was not.

Evidence

P.C. Steer

[3] Constable Blair Steer testified he was a member of the York Regional Police canine unit. At 12:51 a.m., on November 2, 2011, he received a 911 radio call for his attendance regarding a possible home invasion at 341 Flagstone Way in Newmarket. En route, he did not observe any vehicles on the road. When he arrived on scene he observed a black car with Indiana plates parked at the curb just north of the driveway, and right in front of 341 Flagstone, with its engine running, and driver's door open.

[4] Steer saw two people while pulling up in his vehicle. He saw one person at the front of 341 Flagstone Way on the lawn or in the driveway. He also saw a person wearing a dark hooded sweatshirt and jeans (later identified by him as the defendant) running off the front porch, then running north across lawns of neighbouring houses. He then observed the defendant to turn eastbound and run between two houses, 369 and 371 Flagstone. P.C. Steer drove his vehicle the distance of "approximately maybe five houses" and stopped his vehicle in front of 371 Flagstone. He did not lose sight of the defendant until he ran east between the two houses.

[5] Steer and P.C. Murray, another canine officer, got out of their cruisers and gave chase. About five seconds after Steer lost sight of the defendant as he ran between the houses, the defendant returned, this time westbound from the rear of the houses. The defendant was then arrested by Murray at gunpoint during what is referred to as a "high risk takedown". The defendant was turned over to Sergeant Graham. Steer was certain that the defendant was the same person who ran between the houses because the person who emerged five seconds after Steer lost sight was wearing the same clothes (blue jeans and a dark hoody).

[6] Because Steer was concerned about possible victims at 341 Flagstone, he attended to that address. After ensuring safety at 341 Flagstone, Steer returned to the rear yard of 371 Flagstone where he and Murray found a black replica handgun on the patio in the rear yard. The photograph was included in a photo sheet marked Exhibit 2.

[7] In cross-examination, Steer conceded that the defendant, just before arrest, said "I'm 15, I'm 15." He also maintained the defendant was "sweating and had nervous energy", although that observation was not recorded in his notes. Steer also agreed the defendant was arrested at gunpoint, but denied excessive force involving himself or other officers. Steer was unaware if any fingerprints were located on this firearm. He denied the defendant had a chrome-plated handgun pointed at him, since York Regional Police only have black matte guns.

P.C. Murray

[8] P.C. Kevin Murray, also of the canine unit, responded to the 911 call and arrived at 341 Flagstone just in front of Constable Steer. He observed, upon arrival, one male walking on the sidewalk about 20 – 30 feet away from the residence, and another male running from the porch of 341 Flagstone. He observed the defendant (later identified) to run northbound and "tuck" between the houses at 369 and 371. He noted the defendant to be wearing a dark hooded sweatshirt, dark baggy jeans and multicoloured Nike running shoes. When he lost sight of the defendant, he decided to get the police dog. Before he was able to retrieve the dog, the defendant walked back out between the houses, five to 10 seconds later. Murray had lost sight of the defendant, but was certain it was the same person who ran because of the clothing, with the Nike multicoloured running shoes figuring prominently in that conclusion.

[9] The defendant had walked out with his hands up saying "I'm only 15." Murray did not draw his firearm and maintained that no excessive force was used to arrest the defendant. Murray also investigated the back yard of 369 Flagstone briefly where he unleashed his police dog. The dog picked up and then dropped a black handgun. The gun was seized.

[10] In addition, Murray observed a third canine officer, P.C. Burnett, locate a second handgun in the yard "adjacent" to 369. He was unsure whether that address was just south of 369 or north.

[11] In cross-examination, Murray contended he was able to see what the police dog did with the gun because he had a flashlight. He believed the gun was located in the back yard of 369 Flagstone.

P.C. Biersteker

[12] The parties agreed that Constable Biersteker's evidence could be filed on consent as an Agreed Statement of Facts. Exhibit 8 reads:

On November 2, 2011 at approximately 12:51 am, Police constable Biersteker #1508 of the York Regional Police Service, was one of a number of police officers who attended the address of 341 Flagstone Way in the Town of Newmarket in response to a 911 call for service regarding a home invasion robbery. He was a uniformed officer who was driving a marked police cruiser.

The officer drove directly to the rear of 341 Flagstone Way where there was a Walmart shopping plaza. This area can be described as a laneway and delivery area. The properties along Flagstone Way are divided from the shopping plaza by a large concrete retaining wall.

The officer drove into the rear laneway from Bonshaw Avenue which is at the south end of the plaza. Upon doing so he observed two males standing at the base of the retaining wall, in the laneway, at the rear of 341 Flagstone Way.

The two males quickly took off running northbound but were quickly intercepted by the officer. Another officer was arriving at the location from the north end of the plaza. As the two males began to run PC Biersteker saw them throw two dark heavy objects up over the retaining wall into the rear yards of a residential property(s) on Flagstone Way.

Both males were arrested and subsequently identified as Mr. Elisha McFarlane (22 years of age) and Mr. Shelford Phillips (18 years of age), both Toronto residents.

A search of the backyard areas where the objects had been thrown was conducted. The following items were seized:

1. Black replica firearm located on the rear patio of #369 backyard
2. Small black replica firearm located next to a shed in #371 backyard
3. Two individual rounds within a few feet of each other in #371 backyard
4. Magazine from the garden area at the south side fence in #371 backyard
5. Two alcohol bottles behind the wooden fence in #341 backyard

Mohamed Gebril

[13] Mr. Gebril, 43, rented 341 Flagstone Way and lived at that address with a sub-tenant named Hussein Fasil. Fasil woke him up around 12:30, telling him there were people knocking at the door. Gebril was not expecting visitors. He saw a girl in her teens and opened the door. Immediately three men pushed at the door, trying to enter. The intruders were able to overcome Gebril and Fasil. Quickly, Gebril had two men on top of him. One of them had a gun and said, "This is real", twice.

[14] Gebril eventually saw two guns; one big one, one small. Both men hit him with their guns. One of the men took Gebril upstairs to his bedroom. The men ransacked his closets and ripped his door off the hinges. Since he was injured and frightened he phoned 911. He suffered serious head wounds, which required stitches and staples. The intruders stole three cell phones and bottles of liquor.

[15] Gebril gave descriptions of the three men. The defendant was not identified as one of the three. Only the one man with glasses and a gun was known to Mr. Gebril. Surprisingly, that man, McFarlane, had entered his house in essentially the same fashion the previous Saturday (October 29). The girl did not come inside the house. Gebril saw her outside on the front lawn with a male. V.E. was not identified by Gebril as the male outside either.

V.E.

[16] V.E., now 16, was 15 years of age when arrested by police on November 2, 2011. He has no youth record. That night, he and three others were smoking marihuana in a car near his residential building in the Black Creek/Trethewey area of Toronto. They were: Q., his female friend; Mikel; and McFarlane (Mikel's cousin). He decided to wake up his friend Shelford. All five decided to get food at a local fast food restaurant. They then headed north in McFarlane's car. McFarlane was driving. Shelford was in the front passenger seat. Q. was in the back seat between Mikel and the defendant.

[17] After the five (all were arrested in proximity to 341 Flagstone later that night by YRPF) left the restaurant, McFarlane drove northbound on Highway 400. The defendant did not realize the car was not heading in the direction of his home until he saw a sign that indicated "Major Mackenzie". Since the defendant was concerned about a curfew, he "freaked out", expressing his displeasure at travelling far from home.

[18] When the vehicle reached Flagstone the defendant was upset and walked away from the car to have a cigarette. He did not see where the others went but thought it was in the opposite direction. He did not know the others' intentions. The police arrested him on the sidewalk as he was in the process of walking back to the car. The defendant testified he was never on the porch of and he did not enter 341 Flagstone. He never ran from the police. He never ducked in between 369 and 371 Flagstone. He did not have a handgun. The defendant maintains he was punched by the police and had a shiny handgun pointed at him. He says the police were not truthful when they maintained they were not abusive. His face was bleeding.

Findings

[19] Since the defendant presented evidence, I must apply R. v. W.(D.), 63 C.C.C. (3d) 397:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

I conclude that I cannot accept the defendant's version for the following reasons:

• The defendant claimed to be "freaked out" when he realized the car he was in was not heading home but now north of Toronto on Highway 400. He was concerned about his curfew, and he did not want to be "stranded". However, when the car reached Newmarket, the defendant left to go for a walk by himself around the corner in the opposite direction. In my view, leaving the vehicle and walking out of eyesight is inconsistent with someone concerned about being abandoned.

• The defendant claimed he was not involved in the home invasion, was never at 341 Flagstone, and did not run from the porch of 341 Flagstone, or between two houses. Obviously, this position is in complete opposition to the evidence of the two canine officers. But it also does not accord with the evidence regarding four male and one female suspects, which is supported by the police investigation, the complainant, and the evidence of the defendant himself regarding four males and one female in the car. Tellingly, the complainant testified to three males entering his house, and observation of one male and one female outside the house in his front yard. V.E. maintained he was never on the property of 341 Flagstone, much less in the house.

• The defendant claimed to be upset about the others driving away from Toronto, but never asked anyone where they were going.

• He claimed to be concerned about a curfew, but did not know what time he and his friends ate food in Toronto immediately before coming to Newmarket.

• Exhibit 1 is the recording of police communications during the response to the 911 call and the arrest of the defendant and others. In the recording, the canine officers involved in the arrest of the defendant made it clear that he (the defendant) was the one that ran from the officers. Even the defendant agrees that it was his arrest that is heard on Exhibit 1. This res gestae statement, "We have a guy in custody, he's the one that took off on us here" was made while the event was occurring and therefore has significant reliability. This confirms the officer's evidence that the defendant ran from 341 Flagstone. Therefore I find the defendant ran from 341 Flagstone.

[20] Next, if I conclude the defendant was responsible for discarding either of the two guns found in the back yard of 369 and 371 Flagstone, the circumstantial case for his involvement in the home invasion, and therefore his criminal liability as a party to the offence charged, would be close to impossible to refute. However, I consider the following evidence:

• No one saw the defendant possessing a gun, or discarding a gun.

• No fingerprints connected the defendant to the guns found.

• Five seconds, or even 5 – 10 seconds, would not likely provide enough time to run the length of the grassy area between the houses, dispose of the gun over a fence gate, and return with your hands up. Not impossible, but unlikely.

• No other participant in this offence testified at this trial to implicate the defendant.

• Most importantly, P.C. Biersteker's evidence that the two adults discarded two dark heavy objects into the back yard where the two guns were found, provides a plausible alternative explanation for their discovery.

[21] Ultimately, in the end, I cannot conclude that the defendant was responsible for discarding one or both of the two guns found. The fact that this case was re-opened to allow the arresting officers to explain their evidence that V.E. ran between 369 and 371 Flagstone, when in fact those houses were attached, had no bearing on my conclusion. Ultimately I conclude the officers simply mistook the numbers and nothing more nefarious.

[22] However, the defendant's possession of one, or both, of the firearms is only one part of the circumstantial case against him. He could still be found guilty as a party. There is no question the defendant and four others travelled from Toronto to Newmarket in a car around 1:00 a.m. At least four people knew about and were directly involved in the home invasion – the three males that entered the house and one female who knocked at the door so as to ensure that it would be opened. It is hard to accept the defendant was unaware of the criminal plan.

[23] The homeowner (Gebril) described a fourth male whom he saw on the lawn outside. There is no evidence regarding that male's involvement in the home invasion. He might have been a lookout. However, there is no evidence that male performed the lookout role. The female was outside as well, in a position to act as a lookout. Of course, it is well-settled law that mere presence at a crime scene cannot attract criminal liability.

[24] Party liability is detailed in s. 21 of the Criminal Code:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Marginal note: Common intention

(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.

[25] I have earlier indicated that I accepted the police evidence that it was V.E. who ran from the scene of the home invasion. V.E. fleeing the scene is certainly some evidence of consciousness of guilt. But again, there are alternative explanations for why V.E. would run from police. Of course, V.E. did not provide any reasons, since his evidence was that he did not run. As a result, I find that V.E. was likely running because he was aware of his involvement in the offence of Use Firearm in a Robbery that was committed by the principals. In a criminal case, likely is not enough.

[26] In the final analysis, although I am left with evidence which leads me to conclude that V.E. was likely involved in this crime, in my view, there is simply insufficient evidence to establish the Crown's case beyond a reasonable doubt. Other than running from the scene, there is no evidence of the defendant's participation in this criminal act. Again, none of the four known participants testified to implicate the defendant. No witness could identify him as acting in any way that could attract s. 21 liability. No inculpatory statement or stolen property was connected to the defendant.

[27] Had there been any evidence to corroborate the defendant's "consciousness of guilt", I may well have concluded differently.

[28] As a result, the defendant must be found not guilty on the Use Firearm count. In addition, he must be found not guilty of the Breach of Recognizance charge since I heard no evidence regarding his failure to report to 12 Division, Toronto, on the first day of each month.

Released: August 1, 2013

Signed: "Justice Richard Blouin"