Court File and Parties

Court File No.: 14-9818

Ontario Court of Justice Criminal Court

Her Majesty the Queen v. Nicholas Kim

Before: The Honourable Justice R. Wadden

Date: October 2, 2014, in Ottawa, Ontario

Appearances:

• L. Tansey Miller, Counsel for the Crown
• S. Friedman, Counsel for N. Kim

Publication Ban Notice

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO THE ORDER OF R. WADDEN, Ontario Court of Justice, MADE UNDER S. 486.5 OF THE CRIMINAL CODE.

Reasons for Decision

WADDEN, J. (Orally):

On July 27, 2012, a young man named Thomas Toth was shot twice in a park in Central Ottawa. Mr. Toth survived and the police investigated, but as Mr. Toth could not identify his shooter, and there were no witnesses, no arrest was made.

In March 2014, the Ottawa Police received information from a witness, E.P., who implicated Nicholas Kim, the accused, in the shooting of Mr. Toth. Mr. Kim was arrested and charged with two counts of discharging a firearm and seven other firearms offences in relation to the shooting. This trial proceeded before me over four days in August and September 2014.

Evidence at Trial

The evidence at trial consisted primarily of the testimony of Thomas Toth and E.P. Mr. Toth testified at trial that on the night of July 27, 2012 he had gone to a park off Lees Avenue in Ottawa to work out. He arrived, alone, just as it was getting dark and he continued his workout, primarily running laps around the soccer field in the dark. He testified that without any warning he was shot in the legs twice from behind. As he lay on the ground he phoned 911 for an ambulance. He claims that he did not see anyone else in the park and did not see his shooter. He claims to have absolutely no idea of who shot him, nor know of any reason anyone would have for shooting him. On his account, this would seem to be a random shooting and he is adamant, somewhat bizarrely, that although he has no idea who shot him, he is certain it was not Mr. Kim, a person he has never met. In the course of his testimony, he looked at the accused in the box stating that he had never seen him before and did not know him, and then asserted, although he did not see his shooter, that the accused was not the person who shot him.

Given that Mr. Toth has a significant criminal record for firearms offences, and that he was shot in a well-lit area of the park, there are reasons to believe that he is not being candid in his testimony. However, aside from its improbability, there is no basis on the evidence for me to entirely reject his evidence.

As the evidence of Mr. Toth did not implicate Mr. Kim, nor was there any physical evidence linking Mr. Kim to the shooting, the entire case for the Crown rested on the testimony of E.P., a career criminal who claimed to have been a criminal associate of Nicholas Kim.

Assessment of E.P.'s Credibility

Mr. P. has a lengthy criminal record including offences of violence and weapons, offences against the administration of justice and repeated breaches of court orders. At the time of his testimony he was serving a conditional sentence and he acknowledged repeatedly breaching the terms of that sentence. In addition to offences for which he was convicted, he admitted to numerous other criminal acts including possession of firearms, discharging firearms by shooting at people, armed robbery, drug trafficking and brutal domestic violence. He admitted to a lifestyle whereby he lived off the earnings of his girlfriend, a stripper, and apparently off the earnings of other women. He admitted to perjury, having lied to the police under oath when he gave his statement in March of 2014, and again having lied when he testified in this court. In a recorded conversation played in court, he may be interpreted as seeking a payoff for his silence or for not testifying against Mr. Kim. In his testimony, he implicated himself as a party to the shooting of Mr. Toth.

Mr. P. testified that he knew both Mr. Kim and Mr. Toth in July of 2012. He testified that he and Mr. Kim were planning a robbery and Mr. Toth had agreed to provide them police badges they could use in their disguises. Mr. P. testified that he called Mr. Toth and arranged for him to meet him and Mr. Kim at the park off Lees Avenue on the night of July 27. According to Mr. P. this park was the location where Mr. Toth had hidden the police badges. Mr. P. and Mr. Kim arrived first and waited for Mr. Toth.

Mr. P. gave different versions, all under oath, of what happened next. According to his statements to the police and his testimony under examination in-chief, when Mr. Toth arrived Mr. P. and Mr. Kim walked with him through the fields towards the spot where he had hidden the badges. As they walked along, Mr. Kim pulled out a firearm and shot Mr. Toth in the legs. Mr. Kim and Mr. P. then fled on their motorcycles.

Mr. P. testified under examination in-chief that he had no knowledge that Mr. Kim was about to shoot Mr. Toth. He did not even know that Mr. Kim had a gun. Later under cross-examination, he admitted that he had lied in his evidence in-chief and in his sworn statement to the police. He admitted that as he and Mr. Kim waited for Mr. Toth to arrive he became aware that Mr. Kim had a gun and intended to shoot Mr. Toth. Mr. P. remained with Mr. Kim, reluctantly, to encourage and assist if necessary, stating that Mr. Kim would not have had the courage to go ahead with the shooting if Mr. P. had not remained. This is almost a textbook description of a party as an abettor to an offence.

Mr. P. testified that he and Mr. Kim fled from the scene leaving Mr. Toth wounded and lying on the ground alone in a wooded park. When Mr. P. confronted Mr. Kim about the shooting later that evening, Mr. Kim told him that he had been paid $10,000 to shoot Mr. Toth. Mr. P. did not report the shooting to the police, nor the presence of Mr. Toth as a victim of a shooting in the park.

Motive for E.P.'s Testimony

A year and a half later, in March of 2014, there was a falling out between Mr. P. and Mr. Kim. The dispute between the men seems to have arisen over Mr. P.'s girlfriend. Some weeks earlier, Mr. P. and his girlfriend had separated. At some point after that Mr. P. inflicted a savage beating on her. She fled their home and went to the home of Mr. Kim and his girlfriend. Texts between the men suggested that Mr. P. objected to Mr. Kim harbouring his girlfriend, and there were concerns expressed by Mr. P. about her departure resulting in a loss of his household income and a risk of his being charged for his beating of her.

Mr. P. testified that during the course of this dispute with Mr. Kim, Mr. Kim and others came to his house and attacked him with weapons. Mr. P. then went to the police and told them of Mr. Kim's involvement in the shooting in 2012. As a result, Mr. Kim was arrested and incarcerated. Sometime after that Mr. P.'s girlfriend resumed her relationship with him and they are now engaged.

Discrepancies in Evidence

There were some discrepancies between the account given by Mr. P. and the physical evidence. Mr. P. testified that he was certain that a 9 millimeter handgun was used. The shell casings found at the scene were actually 40 caliber. Mr. P. says that the shooting happened on the fields at the park. The physical evidence shows that it happened on a gravel parking lot at the park.

Significantly, the evidence of the other Crown witness, Thomas Toth, directly contradicts the account given by Mr. P. Mr. Toth denies that he was in contact with Mr. P. that night, and denies that he met Mr. P. or Mr. Kim at the park. He denies having any knowledge of police badges.

Legal Framework: Unsavoury Witnesses

The Crown and the defence filed thorough written submissions and they have been of great benefit to the court. Both the Crown and the defence agree that Mr. P. is to be regarded as an unsavoury witness, as defined in R. v. Vetrovec and other authorities. Due to his lengthy criminal record, his ongoing criminal lifestyle, and his involvement as a party to the offences before the court, Mr. P. clearly falls into that category.

As noted in the Crown's submissions, caution should be used before relying on the uncorroborated evidence of an unsavoury witness. As stated by Justice Fish in R. v. Khela, experience has shown that unsavoury witnesses "can be convincing liars and can effectively conceal their true motives for testifying as they have."

Although there is no legal requirement that there be corroboration, it would be dangerous to convict solely on the basis of the testimony of an unsavoury witness, and a court should look for evidence that is confirmatory of the testimony. As just stated by Justice Dickson in R. v. Vetrovec:

"[I]t has become not merely a rule of practice but a rule of law for the trial judge to warn the jury that it is dangerous to found a conviction on the evidence of an accomplice unless that evidence is corroborated in a material particular implicating the accused. The jury may convict in such circumstances but it is dangerous to do so."

Justice Watt discussed the nature of such material confirmatory evidence in R. v. Pelletier, where he stated that:

"[T]o be confirmatory of the testimony of an unsavoury witness evidence must come from another source and tend to show that the unsavoury witness is telling the truth about the guilt of the accused."

He cites the decision of R. v. Khela from the Supreme Court, and continues:

"Confirmatory evidence must be independent of the tainted witness, but need not implicate the accused. Where the only issue in dispute is whether an accused committed the offence, the trier of fact must be comforted that the tainted witness is telling the truth in that regard before convicting on the strength of the tainted witness' testimony."

Confirmatory evidence might be physical evidence or testimony of other witnesses, even if the other witnesses are unsavoury themselves. For example, if the testimony of an unsavoury witness led to the discovery of a firearm used in an offence, that could be relied on as confirmatory evidence.

Application to This Case

The Crown points to a number of items that I should consider in this case as confirmatory evidence of Mr. P.'s testimony, namely that Mr. Toth was actually shot, that he was shot in the legs, that he was shot in a park off Lees Avenue, that he was shot at night and he was shot by a single gun. However, many of these details were a matter of public record having been reported in an Ottawa Sun article about the shooting. And as noted above, some of Mr. P.'s details such as the calibre of the gun and the location of the shooting within the park were contradicted by the physical evidence. Mr. Toth's evidence significantly contradicts the evidence of Mr. P.

The Crown is correct that there is no legal requirement that the evidence of any witness, including an unsavoury witness, be corroborated by other evidence. As stated by Justice Watt in R. v. Pelletier:

"As a matter of general principle, the evidence of a single witness is sufficient to support a conviction of virtually any offence."

The authorities are clear that there is no prohibition on a properly cautioned trier of fact accepting the evidence of an unsavoury witness and convicting on that evidence where it is appropriate to do so.

Justice Watt stated in the same decision, at paragraph 68, that:

"After considering the totality of the evidence, a trier of fact is entitled to believe the evidence of a disreputable witness, even on disputed facts that are not otherwise confirmed, if the trier is satisfied that the witness, despite his or her frailties or shortcomings is truthful."

It is an accepted reality of criminal trials that evidence will frequently come before the courts from criminals, accomplices and ne'er-do-wells. Those are the individuals who frequent the company of lawbreakers. It may well be that someone who has committed terrible criminal acts may present as a credible, reformed and well-motived witness. Mr. P. does not fall within this category. Even leaving aside his criminal antecedents, Mr. P. lied to the police and lied to this court about the very incidents that form the basis of these charges. He lied about his involvement, moving from innocent bystander to knowing accomplice in the course of his testimony. I have no way of knowing whether any of Mr. P.'s evidence is true. I have to reject it in its entirety.

It is not for me to speculate as to why Mr. P. would testify about Mr. Kim's involvement in this particular crime. Even if I accepted that Mr. P.'s knowledge of the shooting demonstrated his presence, I cannot find his evidence sufficient to establish that Mr. Kim was also there, or if Mr. Kim was there what role, if any, he played. The police may find the description of the crime by Mr. P. has some value to them as street intelligence, but given the unrepentant criminal character of Mr. P., the lack of confirmatory evidence, and the direct contradiction with the evidence of the victim, Mr. Toth, the evidence of Mr. P. is not sufficient to sustain a criminal prosecution.

Verdict

As stated, there is no other evidence before me implicating Mr. Kim in any crime. The burden of proof is on the Crown to prove the charges beyond a reasonable doubt. That burden has not been met. There is insufficient evidence before me to find Mr. Kim guilty.

Mr. Kim is acquitted of all charges.

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Debbie Soucy, certify that this document is a true and accurate verbatim transcription produced to the best of my skills and ability of the recording of R. v. Nicholas Kim in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording CD#0411_CR07_20141002_083737__6_WADDENR.dcr, which has been certified in Form 1 K. Somerville.

Date: ___________________

Debbie Soucy (Court Reporter)

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER

Ontario Regulation 158/03 – Evidence Act

This certification does not apply to the Reasons for Sentence to which were judicially edited.