WARNING
The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
Date: 2015-04-30
Court File No.: Oshawa 14-Y18277
Parties
Between:
Her Majesty the Queen
— and —
K.C., a young person
Before the Court
Before: Justice S. W. Konyer
Heard on: April 8, 9, 10, 14, 15, 2015
Reasons for Judgment released on: April 30, 2015
Counsel
Ms. H. Bayley — counsel for the Crown
Mr. C. Nishio — counsel for the accused K.C.
REASONS FOR JUDGMENT
KONYER J.:
[1] On May 21, 2014, E.M. drove from his home in Vaughan to a residential neighbourhood in Ajax in order to sell a half pound of marijuana to someone he had never met. He picked up his friend D.D. on the way to Ajax. When they arrived at the pre-arranged location, two strangers approached them and entered E.M.'s car to complete the sale. Instead, however, the two buyers pulled guns and attempted to rob E.M. and D.D.. The robbery was foiled when E.M. and D.D. escaped and called for help. Police responded to the scene shortly after, and arrested two young males matching the description of the robbers who were hiding under a deck in the rear yard of a home in the neighbourhood.
[2] One of the males who was arrested is the accused before me, K.C.. He is charged as a youth with a number of offences, including robbery and a variety of firearms offences. He testified in his own defence at trial and denied any involvement in the robbery.
[3] The only issue in this case is identification. I must decide whether the Crown has proven beyond reasonable doubt that K.C. was one of the two persons who attempted to rob E.M. and D.D.. Since the identification evidence in this case comes from numerous witnesses, and is a combination of direct and circumstantial evidence, a detailed review of the relevant facts is required.
The Setup of the Drug Deal
[4] The aborted drug deal was set up by K.T.. She had been friends with K.C. since high school, and knew E.M. from college. Some time before this incident, K.C. had introduced her to his cousin, who was known as C.J. She hung out with K.C. and C.J. on several occasions, and had exchanged phone numbers with C.J. It is undisputed that C.J. is in fact R.C., who is K.C.'s cousin. At the time of the robbery attempt, K.C. lived at 12 Arfield Avenue in Ajax, which is mere blocks from the site of the attempted robbery of E.M. and D.D..
[5] On May 20, 2014, C.J. called K.T. and asked her if she knew anyone who could sell him marijuana. When the call came in, she recognized C.J.'s phone number on her call display, and also recognized C.J.'s voice on the phone. She told him that she knew someone who might be interested, and told C.J. that she would make some inquiries.
[6] E.M. confirmed that K.T. contacted him to make this inquiry. He was unsure whether she provided him with C.J.'s number or whether she gave his number to C.J. In any event, a number of telephone conversations ensued between E.M. and the male identified as C.J. on May 20. In cross-examination, E.M. agreed with the suggestion that there were 7 phone calls between himself and C.J. lasting over five minutes in total. An agreement was reached for E.M. to travel to Ajax to meet with C.J. the following day to sell him a half pound of marijuana for $1,200.00.
The Day of the Incident
[7] The following day, May 21, E.M. picked up his friend D.D. and drove to Ajax, following directions given to him by C.J. He stopped his car on a residential street next to a park and called C.J., as he had been instructed to do. D.D. testified that he was unaware of the specifics of the sale, but knew that E.M. was making a deal of some sort. While they waited, D.D. stepped out of the car to smoke a cigarette.
[8] Two Black males approached the car, one of whom identified himself as C.J. They got in the back seat of E.M.'s car, with the male who had identified himself as C.J. seated behind D.D., the passenger, and the other male seated behind E.M., the driver. After moving to a new location a few blocks away, the sale of the marijuana was discussed. Instead of completing the deal, however, the males in the rear seat pulled handguns, grabbed E.M. and D.D. around their necks, pointed the guns at their heads and demanded the marijuana and money. E.M. was pistol whipped. The Crown's theory is that the male who had identified himself as C.J. was not R.C. but in fact his cousin, K.C.. The other male is alleged to be Julien Heath, who is separately charged as an adult. Neither R.C. nor Heath were called to testify in this trial.
The Escape and Police Response
[9] Both E.M. and D.D. managed to escape from the vehicle and shouted for help. Virginia Jeofry, who lived across the street and was outside working in her front garden, heard the commotion and saw four males running from a car. One of them shouted at her to call police. After they rounded a corner, she heard shots fired and she went inside and called police.
[10] Both E.M. and D.D. testified that they chased the two males who had attempted to rob them once they escaped from the car. They did so because they believed the guns were likely fake, and they mistakenly thought that the males had taken the keys to E.M.'s vehicle.
[11] After rounding a corner, one of the males, alleged to be Heath, turned and fired shots at E.M. and D.D.. They continued chasing the males for a few blocks and saw them enter a house with an address of 12 Arfield Avenue. This is the residence of R.C.. Det. Sitaram, the investigating officer, confirmed that R.C. was known to police by the nickname C.J., and that he was known to live at this address.
[12] After the two robbers entered this home, D.D. watched the house from the street while E.M. returned to his vehicle. Believing that police were coming, E.M. hid a box containing a half pound of marijuana at the side of a house. This was witnessed by Ms. Jeofry, who later showed the location of the box to police. By the time that E.M. returned to the house at 12 Arfield Avenue, D.D. was nowhere to be seen. E.M. could not reach D.D. by phone. Panicked, E.M. fled the area and called K.T., his friend who had set up the deal. He drove to her location and told her that he had been robbed. A short time later, he was contacted by police and returned to the scene, where he was arrested for possession of the marijuana for the purpose of trafficking.
The Chase and Arrest
[13] D.D. testified that after E.M. left him watching the house at 12 Arfield Avenue, that he noticed two Black males on the street a short distance away. He did not recognize them at the time, but called out to them, which caused the males to flee. D.D. gave chase. He testified that the two males split up, and began running between houses. Apparently, much of the residential area was still under construction at the time, so many of the yards were not fenced, allowing unobstructed passage.
[14] D.D. chased and eventually caught up with one of the males, who he then recognized as the male who had been seated behind E.M. during the attempted robbery. This is the male alleged by the Crown to be Julien Heath, the separately charged adult. This male was now wearing a red hoodie, but had been wearing a blue jacket earlier during the robbery attempt, which caused D.D. to believe that the males had changed clothing after entering the house at 12 Arfield Avenue.
[15] A struggle ensued between D.D. and the male in the red hoodie. D.D. saw a handgun in the front pouch of the hoodie, so he grabbed the male in a headlock and took him to the ground. The hoodie came off in the struggle and the male fled. D.D. picked up the gun by the barrel and ran after the male, at the same time yelling for help.
[16] Pedro Martins was a construction worker who was operating a forklift in the neighbourhood. He heard a voice yell "stop those guys". He testified that he looked up and saw two Black males being chased by a third male he described as Filipino. Both D.D. and E.M. are young Asian males. Martins shouted at the Black males to stop, which they did. They also told him that the male chasing them had a gun. Martins saw the third male running with a gun in his hand, which was being held by the barrel. Martins told this male to put the gun down, and that he was calling 911. This male did place the gun on the ground, but all 3 males ran off before the arrival of police.
[17] Cst. Gillman was dispatched to the area at 12:15 p.m. and arrived within minutes. He was operating a marked police cruiser. The information he had received from the dispatcher was that shots had been fired, that a group of four Black males were involved, and that they were last seen running on foot. As he approached the subdivision, he observed two Black males in dark clothing jogging on a street parallel to his location within the subdivision. The officer saw the two men pause and look towards him before running off. He formed the belief that these males were possibly involved in the shooting, and had run from him because he was a police officer.
[18] Cst. Gillman attempted to pursue the males using his cruiser, but was unable to fit the cruiser between concrete barriers blocking access to the subdivision at that location. By the time he had driven to the nearest entrance to the subdivision, he had lost sight of the two males. He took up a perimeter position and broadcast his sighting to other officers over the police radio.
[19] Some time later, Cst. Gillman and another officer on scene, Cst. Jobanputra, were tasked to assist a canine officer who was attempting to track the males seen earlier by Cst. Gillman. They started at the location where Cst. Gillman saw the males jogging, and began searching yards on nearby streets. This process involved one officer accompanying the canine officer into the backyard of each house, while the other officer maintained watch at the front of the house.
[20] Cst. Gillman accompanied the canine officer into the back yard of 37 Barden Crescent, where he immediately saw two males attempting to hide under a small deck. Cst. Gillman called for backup and other officers, including Cst. Jobanputra, attended. Police ordered the males to come out from under the deck one at a time. The first male to emerge was K.C., who was arrested and cuffed by Cst. Gillman. The other male was arrested by Cst. Jobanputra and identified as Julien Heath.
Physical Descriptions and Appearance
[21] Photographs of both males taken later that day by police were entered as exhibits at trial. From the photos, K.C. appears to be a young Black male who is tall and slim, and was wearing dark blue jeans, a long-sleeved blue t-shirt and running shoes. His hair was of medium length, and styled in mini-dreadlocks that hung from his head at a length of about 4 inches.
[22] From the police photos, Julien Heath appears to be a young Black male of average height and build, who was wearing a black short-sleeved t-shirt underneath a black vest, bright blue shorts with neon trim, and running shoes. His hair was styled in a bushy afro, and appears to be about 3 to 4 inches in length.
[23] The theory of the Crown is that K.C. pretended to be C.J. and that he was the male who sat behind the passenger seat during the attempted robbery of E.M. and D.D.. E.M., the driver, had the best opportunity to observe this male, and he described this male as a tall, skinny Black male, lighter in skin tone than the second robber, with his hair in dreads hanging from his head, dressed in a long-sleeved sweater and vest. This description is consistent with the appearance of the accused, except that he was not wearing a vest when he was arrested.
Identification Evidence Issues
[24] E.M. made an in-dock identification of the accused as C.J. during his evidence in chief. Because E.M. himself was charged with trafficking as a result of this incident, he agreed that he would have seen arrest photos taken of K.C. when he reviewed disclosure in relation to his own charges. He was never shown a photo lineup prior to seeing the disclosure. I agree with the defence that in those circumstances I cannot give any weight to the in-dock identification of the accused. It is impossible to know whether E.M. is identifying the person he saw in the rear seat of his vehicle or the person whose photos he viewed in his own disclosure package. For the same reason, I cannot put much weight on the description given by E.M. of the male alleged to be K.C.. It is impossible to know whether E.M. is describing the male seated behind the passenger seat from memory alone, or the extent to which that memory is tainted by his subsequent viewing of K.C.'s photos in the disclosure package.
[25] D.D. was not asked to make an identification in the courtroom. His descriptions of the two males involved in the attempted robbery is similarly tainted, since he was also charged with drug offences and would have viewed arrest photos of the accused as part of the disclosure process. It is impossible to place much weight on his description of the males, who were unknown to him, after he viewed the photos of the males arrested by the police. The other civilian witnesses, the neighbour Virginia Jeofry and the construction worker Pedro Martins, had fleeting glimpses of the Black males and were unable to provide any details beyond the most generic of descriptions.
Physical Evidence
[26] The police did recover two guns from the neighbourhood. The first was the handgun that Martins ordered D.D. to place on the ground. D.D. also testified that when he first started chasing the males, that one was wearing a red hoodie and the other was carrying a multi-coloured backpack. A backpack matching this description and containing a second handgun was found in a yard of a home in the area that same afternoon and turned over to police.
[27] Both handguns were forensically examined. No fingerprints were recovered from either weapon. The gun handled by D.D. was found to be in working order, while the other was not in operable condition.
[28] Gunshot residue testing was performed on tapelift samples from the hands of both K.C. and Heath, from the clothing worn by K.C. on arrest, and from the red hoodie recovered by police (which on the Crown's theory was pulled off Heath during his struggle with D.D.). Results of the testing of K.C.'s hands and clothing was negative. The results from Heath's hands was negative, while there were particles consistent with gunshot residue found on the red hoodie.
The Accused's Evidence
[29] K.C. testified in his own defence. He said that at the time of this incident, he was on bail on other charges. He was supposed to have been living with his mother, who was his surety, and he was bound by a house arrest term that prohibited him from being outside of his mother's residence unless he was with her. He was breaching this condition on the date of this incident, as he gone out alone to his cousin R.C.'s house the night before, and had stayed out all night playing video games. In fact, K.C. believed that his mother had already revoked her surety due to previous non-compliance, and was under the belief that he was wanted by the police as a result. He said that he went to his cousin's house the night of May 20 and stayed up late playing video games until he fell asleep in the basement.
[30] K.C. testified that he was awoken the following day by a loud voice coming from the main floor of the house saying "police are coming". He got up, put on some clothes, searched for his wallet and phone, then ran from the house. He ran because he was breaching his bail conditions and thought he would be arrested if police came to the house. He did not see anyone before he left his cousin's house. He said that he ran through the neighbourhood, stopping to hide beside a house when he heard sirens. He then saw Julien Heath, who he knew, running by, so he followed him. They ended up hiding under a deck together where they were arrested by police. K.C. denied any involvement in the attempted robbery of E.M. and D.D..
[31] K.C. admits having a prior conviction for robbery using an imitation firearm. He also admits that he was bound by a recognizance on May 21, 2014 with conditions including house arrest and non-communication with Julien Heath.
Legal Framework and Credibility Analysis
[32] Although this is not solely a credibility case, I am still guided by the principles established by the Supreme Court of Canada in R. v. W.(D). The accused has testified in his own defence. Clearly, if I believe his evidence, I must acquit. If his evidence raises a reasonable doubt in the context of the evidence as a whole, I must acquit. Even if I disbelieve him, I must consider whether the Crown has proven the case against him beyond reasonable doubt based on the evidence which I do accept.
[33] Applying that analysis here, I find that I do not believe the evidence of K.C.. He has a record of conviction for an offence involving dishonest behaviour, and on his own admission he was flaunting court-imposed conditions of release at the time of arrest. It is reasonable to infer that such an individual is less likely to feel compelled to be truthful with the Court when giving evidence. Accordingly, I am not prepared to accept his evidence outright.
Analysis of Circumstantial Evidence
[34] The more difficult issue is whether his evidence raises a reasonable doubt in the context of the evidence as a whole. The only evidence linking him to the attempted robbery of E.M. and D.D. is the fact that he was arrested hiding under a deck with Julien Heath when police were known to be scouring the area. Standing alone, this is evidence from which one could reasonably infer that the people hiding were involved in the incident leading to the police search.
[35] As the defence correctly points out, however, the strength of that inference is reduced where, as here, there is evidence that the accused had a reason to flee or hide from police that had nothing to do with involvement in the crime he is charged with: see R. v. Arcangioli, [1994] 1 S.C.R. 129, at paras. 39-45. In this case, the accused had reason to run and hide from police because he was in breach of his bail conditions, a fact which is not disputed. Although highly suspicious, I cannot safely conclude that he was hiding under the deck where he was arrested because he was involved in the attempted robbery, rather than because he was attempting to avoid arrest for breaching his conditions of bail.
[36] In reaching this conclusion, I am relying on the evidence that the people involved in the attempted robbery seemed to believe that police were on the way to the area. According to Ms. Jeofry, one of the Asian males who exited the car was shouting for her to call police. After chasing the Black males to the house at 12 Arfield Avenue, E.M. returned to his vehicle in order to conceal the marijuana before police arrived. When he returned and could not locate D.D., he fled the area because he thought police were coming.
[37] The accused testified that he was awoken by the sound of a loud voice yelling out that police were coming, which is consistent with E.M.'s belief that police were on their way. It would make sense that the males who entered 12 Arfield Avenue, the residence of R.C., would be discussing the impending arrival of police in excited terms.
The Possibility of R.C.'s Involvement
[38] It is also noteworthy in my view that K.T., who set up the deal, provided contact information between her friend E.M. and a male known to be R.C., nicknamed C.J. The male that E.M. spoke to on the phone to set up the deal identified himself as C.J. The transaction was set up at a location close to C.J.'s home. After the failed robbery, the males fled to C.J.'s home. While it is certainly possible that C.J. sent his cousin K.C. to do a robbery in his place as theorized by the Crown, it is also not unreasonable to think that R.C. was the male identified as C.J. who entered the rear passenger seat of E.M.'s vehicle. This is a real possibility that I cannot discount. A photograph of R.C., known as C.J., was filed as Exhibit 2 at trial, and there is nothing about his appearance that would be inconsistent with the descriptions given by either the victims or the civilian witnesses. His facial features bear a strong resemblance to his cousin, K.C..
Verdict
[39] Therefore, for all of these reasons, I cannot reject the evidence of the accused. Although I do not positively believe K.C.'s evidence that he was not involved in the attempted robbery, his evidence raises a reasonable doubt. At the end of the day, I am unsure whether K.C. was the male identified as C.J. who entered the rear seat of the E.M. vehicle and participated in the attempted robbery of E.M. and D.D.. Accordingly, he is found not guilty of all charges.
[40] I would be remiss if I did not thank counsel for the professional and focussed manner in which they conducted this case.
Released: April 30, 2015
Signed: "Justice S. W. Konyer"