Court File and Parties

Ontario Court of Justice

Date: March 25, 2014

Court File No.: CENTRAL EAST 13-4021

Between:

Her Majesty the Queen

— and —

Jeffrey James Barnaby

Before: Justice C.M. Harpur

Heard on: January 23, 2014, March 3, 2014

Reasons for Judgment released on: March 25, 2014

Counsel:

• M. Flosman, for the Crown
• B. Fedunchak, for the defendant

HARPUR J.:

Overview

[1] Mr. Barnaby faces five charges in connection with what was, effectively, a home invasion by several persons at a third floor apartment at 51 Albert Street North in Orillia shortly after midnight on June 19, 2013. The occupants of the apartment were its lessee, Constantine Cousins, and his friend, Sherry Porte. In the incident Mr. Cousins was sprayed with some of the contents of a fire extinguisher, struck repeatedly with a baseball bat and the shaft of a hockey stick and struck on the side of the head with a beer bottle, cutting him. Fifteen surgical staples were required to close his head wounds. He testified that he sustained brain damage from the various blows he received and, that, through to the time of his testimony at trial on January 23, 2014, he had lost the hearing in his left ear.

[2] Ms. Porte was also sprayed with fire extinguisher contents during the incident but was not otherwise physically assaulted.

[3] The Crown's theory is that Mr. Barnaby was one of the several persons who burst into Mr. Cousins' apartment, that Mr. Barnaby was at least a party to the crimes which occurred there, and that those crimes were: (i) aggravated assault on Mr. Cousins in the form of wounding by the beer bottle; (ii) assault with a weapon – the baseball bat – on Mr. Cousins; (iii) assault on Ms. Porte by way of the spraying with the fire extinguisher; (iv) forcible entry into Mr. Cousins' apartment; and (v) break and enter of Mr. Cousins' apartment.

[4] The Crown proceeded by indictment and Mr. Barnaby elected trial in this court. The trial proceeded on January 23 and March 3, 2014. Mr. Flosman for the Crown called Mr. Cousins, Ms. Porte, Paige Foreman, a person who spent time with Mr. Barnaby before and after the incident in Mr. Cousins' apartment and friend of an alleged co-participant in the home invasion, P.C. Ken Williams, one of the officers who was called to the scene and investigated it, P.C. Brenda Thomas, the identification officer, the agreed statement of fact of D.C. Elliot Duhamel, another officer who was called to the scene and investigated it, and, finally, Renata Dziak, a forensic scientist from the Centre of Forensic Sciences with, as conceded by Mr. Fedunchak for Mr. Barnaby and as I found, expertise in body fluid identification and nuclear DNA analysis.

[5] Mr. Fedunchak called no witnesses.

[6] The central issue raised in counsels' submissions was whether the Crown can prove beyond reasonable doubt that Mr. Barnaby was one of the intruders in Mr. Cousins' apartment in the early morning of June 19, 2013. As I understood Mr. Fedunchak's position, Mr. Barnaby does not contest the fact that Mr. Cousins' injuries by the beer bottle give rise to an aggravated assault, that Mr. Cousins was struck with a baseball bat in the course of the invasion and that this would constitute an assault with a weapon, that the spraying of Ms. Porte with the fire extinguisher was an assault on her, that the uninvited forcing of their way into Mr. Cousins' apartment by the intruders was both a forcible entry and a break and enter, or that, no one having been clearly identified as principal, those persons proven to have invaded Mr. Cousins' apartment are properly regarded as parties, at least to the offences against him. Rather, Mr. Fedunchak submits that the Crown has not established, as it must, that Mr. Barnaby was one of these intruders.

[7] Mr. Flosman acknowledges that the Crown's case is circumstantial but proposes that the facts pointing to Mr. Barnaby's participation are, in aggregate, overwhelming.

[8] For the reasons which follow, I agree with the Crown's submission that the totality of the circumstantial evidence proves Mr. Barnaby's guilt on the charges relating to Mr. Cousins beyond a reasonable doubt. However, I am not satisfied that the Crown has proven Mr. Barnaby's liability as a party to the offence involving Ms. Porte.

Issue One: Was Mr. Barnaby a Party to the Home Invasion

[9] I have taken as my starting point the law concerning circumstantial evidence set out in the decision of the Ontario Court of Appeal in R. v. Robert, [2000] O.J. No. 688, applying the test from R. v. Fleet (1997), 120 C.C.C. (3d) 457, as follows:

This test, often referred to as the rule in Hodge's case, has often been used to described how the trier of fact is to assess the case for the Crown when it is based on circumstantial evidence. However, since the decision of the Supreme Court of Canada in R. v. Cooper (1997), 34 C.C.C. (2d) 18 (S.C.C.), it is clear that the rule in Hodge's case is not "an inexorable rule of law in Canada". As was pointed out by this court in R. v. Fleet (1997), 120 C.C.C. (3d) 457 at 464-465, the formula referred to by the trial judge is but one of the ways of describing the essential test, which remains, has the Crown proved the guilt of the accused beyond a reasonable doubt:

We read the object of both judgments in Cooper to be the eradication of any formulaic approach to such cases so long as the jury is clearly made aware of the necessity to find the guilt of the accused to be established beyond a reasonable doubt. This object may be achieved in more ways than one. Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidence to that position, may frame the requisite instruction in the manner her or she considers most appropriate in the circumstances, for example, by;

(a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);

(b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judge did in Cooper in the final portion of his recharge); or

(c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts (per Ritchie J. in Cooper and Dublin J.A. in Elmosri).

The essential requirement is to impress upon the jury the need to find guilt proven beyond a reasonable doubt and to make plain to them the manner in which such a doubt can arise in the context of a case of proof of identity by circumstantial evidence.

[10] What, then, is the evidence marshalled by the Crown which, it says, proves Mr. Barnaby's participation beyond reasonable doubt?

a. The "Scene" Evidence

(i) Mr. Cousins

[11] Mr. Cousins said that, by reason of being sprayed in the face with contents of the fire extinguisher, he never did get a good look at any of the intruders that morning. His evidence concerning the intruders' identities was as follows: (i) they were male; (ii) there were three of them; (iii) one held a fire extinguisher, one a baseball bat and one a stick like the shaft of a hockey stick; (iv) one said words to the effect of "fucking rat" immediately after their entry; (v) another had dark hair; one, who held either the fire extinguisher or the bat, had curly blond hair (vi) Mr. Barnaby had been an acquaintance of Mr. Cousins for four or five years and has a distinctive voice which Mr. Cousins did not recognize during the incident; (vii) the heights of the intruders were approximately 5'7, 5'8 and 5'9; (viii) neither the man with the extinguisher nor the man with the stick was Mr. Barnaby; (ix) Mr. Cousins felt that Mr. Barnaby was not present in the apartment; and (x) all three of the invaders participated in the attack upon him.

[12] Mr. Cousins also testified that he felt the incident took place between 8:00 and 9:00 p.m. on June 18, 2013, testimony contradicted by that of Ms. Foreman and the police officers which is subsequently described, which I accept, and which put the time of the start of the incident around 1:00 a.m.

(ii) Ms. Porte

[13] Ms. Porte was able to contribute only the following evidence to the identity issue: (i) her first awareness of the invasion was the kicking in of the bathroom door; (ii) more than one intruder entered the bathroom; (iii) immediately on the intruders' entry her face was full of fire extinguisher spray; (iv) she was able to see but did not recognize the man with the fire extinguisher, who had long hair and was wearing a baseball cap; and (v) Ms. Porte knows Mr. Barnaby and knows him to have been bald for many years, that is, he was not the man with the fire extinguisher.

(iii) Ms. Foreman

[14] Ms. Foreman's evidence, in context, placed Mr. Barnaby near to Mr. Cousins' apartment at the approximate time of the home invasion. She said she, her friend "Kristen", Mr. Barnaby, Mr. Barnaby's son Brian Bould, Mr. Bould's girlfriend Erica Muir, her own friend Gary Laird and one Louis Mortimer arrived at the apartment of Mr. Bould and Ms. Muir in Orillia at approximately midnight on June 19, 2013. The evidence of P.C. Williams and P.C. Thomas subsequently established that the apartment Ms. Foreman identified as Mr. Bould's is approximately 100 metres from Mr. Cousins' apartment building.

[15] Ms. Foreman said this group proceeded to consume alcohol and some marijuana in Mr. Bould's apartment. She said that, after approximately 45 minutes, the men prepared to leave, one of them saying "we're going to get them". She said Mr. Bould left the apartment, followed approximately 10 minutes later by the other men. She said they were gone for approximately 15 minutes and then returned, Mr. Bould first, then Mr. Mortimer, then Mr. Laird and Mr. Barnaby. She said Mr. Laird had blood on his hands and a gash on his right palm. She said Mr. Barnaby had a gash over his right eye, fresh blood running down his face and blood on his shirt and pants. She said that Mr. Barnaby said, both then and subsequently that morning, that he was "glad Gary came back to get him", "glad he did what he did", "glad he got the rat" and "glad that the rat had been punished". Ms. Foreman said that, approximately 5 to 10 minutes after the men's return, all of the group except Mr. Bould and Ms. Muir left in Ms. Foreman's car for Bracebridge, Ontario with Ms. Foreman driving.

(iv) The Police

[16] P.C. Williams was dispatched to the scene shortly after 1:00 a.m. on June 19. He followed a trail of blood from the entrance of 51 Albert Street North, the address of Mr. Cousins' apartment building, to the side door of Mr. Bould's apartment at 58 Nottawasaga Street. In 58 Nottawasaga Street were Mr. Bould and Ms. Muir. In a kitchen shared by apartments in the building, P.C. Williams saw long drips of blood on the cupboard doors and fresh drops of blood on the floor. Also in a common area on a counter P.C. Williams saw a fire extinguisher with its clasp open and its pin pulled.

[17] Like P.C. Williams, P.C. Thomas observed the trail of blood from 51 Albert Street North to 58 Nottawasaga Street and the apparently-recently-used fire extinguisher in the Nottawasaga Street residence. P.C. Thomas, as identification officer, also seized and sent to the Centre for Forensic Sciences various items from 51 Albert Street North, including the black Nike baseball cap visible in the photographs taken by P.C. Thomas which were made Exhibits 1-3 at trial.

[18] The statement of D.C. Duhamel made Exhibit 6 at trial is to the like effect of P.C. Thomas's testimony with respect to the blood drop trail and a fire extinguisher in Mr. Bould's apartment.

(v) Ms. Dziak

[19] It is the seizing of the Nike cap, its submission to the Centre of Forensic Sciences and the results of the Centre of Forensic Sciences' analysis on which Mr. Flosman particularly relies in asserting that Mr. Barnaby was present at the melee at 51 Albert Street North. According to Ms. Dziak's expert evidence, subject to the prospect of a 1 in 5.9 quadrillion coincidence, Mr. Cousins' DNA is contained in the blood stain in the middle of the "swoosh" on the outside of the front of the baseball cap (figure 5-1 in Exhibit 9). According to that same evidence, and subject to an even less likely coincidence, Mr. Barnaby's DNA is contained in both a blood stain underneath the bill of the cap (figure 5-2 in Exhibit 10) and in the headband of the cap (figure 5-3 in Exhibit 10).

[20] On the issue of how these samples came to be on the cap, the Crown couples Ms. Dziak's evidence with the following: (i) Mr. Cousins' evidence that he had cleaned up his apartment shortly before the melee, indicative of the cap's presence on the apartment floor only from the time of the invasion (Mr. Cousins said the police arrived immediately following the intruders' departure and the police evidence was to the effect that the scene was secured from the arrival of the first officers at the apartment until P.C. Thomas took her photographs); (ii) Mr. Cousins' evidence that the cap was not his; and (iii) Mr. Cousins' evidence that both he and one of his assailants were cut when he was struck with the beer bottle. Mr. Flosman says the inevitable conclusion from these factors, in the context of the evidence as a whole, is that Mr. Barnaby had worn the cap prior to and/or during the attack, thus explaining his DNA in the headband, and was wearing the cap during the attack, thus explaining his blood DNA on the underside of the bill and Mr. Cousins' blood DNA on the outside of the front of the cap.

b. The Other Circumstantial Evidence

[21] Mr. Cousins also testified that the day before the home invasion Mr. Barnaby had attended Mr. Cousins' apartment for an amicable visit but that, after some 20 minutes of visiting, the police came to Mr. Cousins' door, entered, and arrested Mr. Barnaby but not Mr. Cousins. Mr. Flosman submits that Mr. Barnaby thus had a motive to harm Mr. Cousins as revenge for a perceived complaint by Mr. Cousins about whatever conduct on Mr. Barnaby's part led to the arrest. Mr. Flosman observes that this theory is supported by Ms. Foreman's testimony about Mr. Barnaby returning bloodied with other men from somewhere that morning and saying he was "glad he got the rat", "rat" being a term commonly understood to mean one who implicates another in a crime.

[22] I accept the Crown's argument that the constellation of pieces of circumstantial evidence – Mr. Barnaby's arrest at Mr. Cousins' apartment the previous day, Mr. Barnaby exiting Mr. Bould's apartment with other men one of whom is speaking of "getting them", these men returning bloodied shortly thereafter, Mr. Barnaby expressing satisfaction about getting the "rat", Mr. Cousins' description of the altercation including the cutting of himself and an assailant and of the use of a fire extinguisher, the extinguisher and blood found in Mr. Bould's apartment and, finally, Mr. Cousins' and Mr. Barnaby's blood DNA on the ball cap – all of these constitute compelling proof of Mr. Barnaby's participation in the invasion of Mr. Cousins' apartment.

[23] I should pause to note that Mr. Fedunchak vigorously and at some length tested the evidence of Ms. Foreman, which put Mr. Barnaby in Mr. Bould's apartment before and after the home invasion, indicated that he was cut when he returned and described his "glad I got the rat" remarks. The cross-examination did elicit that (i) Ms. Foreman gave her police statement implicating Mr. Barnaby only after the police told her she would certainly be charged if she did not give a statement and might be charged even if she did; (ii) Ms. Foreman herself was an accessory to whatever crimes the men who returned to Mr. Bould's apartment had committed; (iii) Ms. Foreman had consumed one beer and approximately one-half gram of marijuana while she and others were at Mr. Bould's apartment and was then "maybe a little under the influence" of the latter; (iv) she may have smoked crack-cocaine the night prior to June 19, 2013; and (v) she omitted from her police statement information about Mr. Barnaby's expression of satisfaction about "getting" someone and may well have omitted the information that Mr. Barnaby was cut when he returned to Mr. Bould's.

[24] Ms. Foreman's explanation for the last of these matters was that she continued to be fearful of Mr. Barnaby and at least some of the other men involved at the time of her statement and that she was being reticent at that stage in order protect herself. She said she was also very tired, nervous, and flustered at the time, although she acknowledged that her memory is likely to have been better so close to the events than it was at trial.

[25] I agree with Mr. Fedunchak that Ms. Foreman's evidence requires particular scrutiny. However, having observed Ms. Foreman in the witness box and heard her testimony, I was not left with doubt about her veracity in describing her involvement with Mr. Barnaby on June 19, 2013. She did not target Mr. Barnaby alone in her evidence, describing the presence of the other men as well and their injuries and saying only that one of them, whom she could not identify, said "we're going to get them" before the four left. Nor do I regard as suspect a statement provided by a person told by police they will be charged if no statement is given and that they may be charged in any event. In such a case, without more, the police are simply reciting a fact, not making a threat. Finally, Ms. Foreman was not shaken in her testimony that neither the previous night's drugs nor the beer and marijuana consumed on June 19 precluded an appreciation for her of what was occurring during her involvement with Mr. Barnaby. It appears she was alert enough to be able to drive the group from Orillia to Bracebridge that morning without incident.

[26] Thus, I do not disregard Ms. Foreman's evidence in canvassing the Crown's circumstantial case.

[27] Mr. Fedunchak rightly observes that Ms. Dziak's DNA analysis does not assist in establishing when Mr. Cousins and Mr. Barnaby's DNA were deposited on the ball cap. Absent such assistance, Mr. Fedunchak submits, one cannot draw the inference that the blood DNA deposits were made by Mr. Barnaby and Mr. Cousins in the course of the home invasion.

[28] I readily accept the proposition that any inference I draw must be firmly grounded in the proven facts, must be logically and reasonably drawn, and cannot constitute speculation. Here, however, I would not characterize the inference about when Mr. Cousins and Mr. Barnaby made their blood DNA deposits as speculative or unsupported by the underlying facts. The proof that the cap is present following the melee and not before, that it is not Mr. Cousins' cap, that its headband has been in contact with Mr. Barnaby's body, that it bears the blood DNA of Mr. Barnaby and Mr. Cousins, that Mr. Cousins and an assailant were cut in the exchange and that Mr. Barnaby returned to Mr. Bould's apartment cut above the eye (that is, adjacent to the blood stain containing his DNA on the bill of the baseball cap), all give rise to a compelling inference about the timing of the deposit of the two blood profiles.

[29] Mr. Fedunchak pointed in argument to Ms. Porte's evidence that she and Mr. Cousins had a large collection of hats and that he would, on occasion, trade them with others, including, "possibly", Mr. Barnaby. He noted as well Ms. Porte's evidence that Mr. Barnaby has had no hair on his head for years prior to the incident. From this, Mr. Fedunchak submits that another equally plausible and innocent explanation for the victim's and the accused's DNA samples on the cap is Mr. Cousins having loaned his cap to Mr. Barnaby and Mr. Barnaby having deposited his blood DNA sample as a result of a head-cut during shaving.

[30] What prevents this hypothesis from being viable is the absence of any supporting evidence. Mr. Cousins was not asked whether he had ever loaned this cap to Mr. Barnaby and the evidence he did give - that the cap was not his - appears to contradict this proposition. Ms. Porte went only so far as to say Mr. Cousins traded hats with Mr. Bould and, possibly, Mr. Barnaby, not that this baseball cap was part of a trade or that Mr. Barnaby was one of the friends with whom Mr. Cousins traded. While Ms. Porte said she could not recall Mr. Barnaby ever having hair on his head, there was no evidence given by anyone about whether shaving had anything to do with this condition.

[31] In sum, while I recognize that Mr. Barnaby has no burden of proof in this trial and that Mr. Fedunchak need not establish a reasonable alternative hypothesis to Mr. Barnaby's participation in the home invasion for the DNA deposits, neither the scenario which he has advanced nor any other I am able to conceive would constitute anything other than speculation.

Issue Two – Was Mr. Barnaby a Party to the Assault on Ms. Porte?

[32] The Crown called no direct evidence that Mr. Barnaby was one of the persons who entered Mr. Cousins' bathroom and confronted Ms. Porte. The circumstantial evidence that I have referred to does not place Mr. Barnaby in the bathroom, as opposed to places in the apartment in which Mr. Cousins battled with his attackers. Mr. Cousins said there were three intruders in the apartment and that neither the man with the fire extinguisher nor the man with the stick was Mr. Barnaby. Ms. Porte said one of the intruders into the bathroom was discharging a fire extinguisher, that that person had long hair and that there was more than one intruder in the bathroom. She said her awareness of the intruders began with a kick which opened the bathroom door.

[33] On this evidence I am not satisfied beyond a reasonable doubt that Mr. Barnaby was one of the persons who entered the bathroom. One intruder of the three referred to by Mr. Cousins was not observed by Ms. Porte to have entered the bathroom. That person may have been Mr. Barnaby.

[34] If Mr. Barnaby were proven to be one of the bathroom intruders, I would find him criminally liable for Ms. Porte's assault regardless of whether it was he or another who used the fire extinguisher. Accompanying a person - who, it may properly be inferred, had already made assaultive use of the fire extinguisher - in that person's invasion of the bathroom still armed with the extinguisher would constitute the knowing provision of assistance or encouragement to the commission of a crime against the bathroom occupant and would attract liability under s. 21 C.C.: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411. However, since Mr. Barnaby may have remained elsewhere in Mr. Cousins' apartment, and, the bathroom door being closed, may not even have even been aware of Ms. Porte's presence there, I retain a doubt that he was knowingly providing assistance or encouragement for the assault involving her. The proof here, at best, puts Mr. Barnaby in the vicinity of this offence. It does not prove him to be one with prior knowledge of the principal's intention to commit it. This does not give rise to party liability: R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881.

[35] Ms. Foreman did testify that, before Mr. Barnaby and his male companions left Mr. Bould's apartment, one of them said "we are going to get them " [my emphasis]. However, Ms. Foreman did not identify Mr. Barnaby as the speaker of these words or indicate whether Mr. Barnaby was within earshot when the words were spoken. Thus, this evidence does not provide proof that Mr. Barnaby was aware that his group would be confronting anyone other than Mr. Cousins at his apartment.

[36] The charge against Mr. Barnaby of assaulting Ms. Porte is dismissed.

Conclusion

[37] Convictions will be entered on counts 1 and 2. I would ask for counsels' submissions concerning the application of the principle in R. v. Kienapple, [1975] S.C.R. 729 to counts 4 and 5, the charges of forcible entry and break and enter.

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.

Released: March 25, 2014