Ontario Court of Justice

Date: 2015-05-13

Court File No.: Toronto 4817 998 14-75001861:00

Between:

Her Majesty the Queen

— AND —

Tusane Hasani Green

Before: Justice Richard Blouin

Heard on: August 8 and October 28, 2014, and January 9, 2015

Reasons for Ruling on Reply Evidence given on: February 26, 2015

Judgment given on: May 13, 2015

Counsel

Ms. Sabrina Fiacco — Counsel for the Crown

Ms. M. Sandy Di Martino — Counsel for the Defendant Tusane Hasani Green

BLOUIN J.:

Charges

[1] Hasani Green stands charged that on February 26, 2014, he committed the following five offences:

• Choke Subrena Morris;
• Utter death threat to Subrena Morris;
• Assault Subrena Morris;
• Assault Subrena Morris with a weapon (knife);
• Fail to comply with probation orders by contracting or communicating with Subrena Morris;
• And February 28, 2014, through March 17, 2014, fail to comply with the same probation order by contracting and communicating with Subrena Morris;
• Harass (by threatening conduct) Subrena Morris.

Crown's Case and Credibility Framework

[2] This is a case where I must apply the principles outlined in R. v. W.D. The Crown called Subrena Morris regarding an attack by the defendant. The defendant testified that he did not attack the complainant. Importantly, the Crown submitted purported text messages from the defendant to the complainant which corroborated, in large part, her version of events. The defendant denied sending the text messages.

Complainant's Evidence

[3] Subrena Morris testified to events she says occurred at her home in the afternoon of February 26, 2014. She lived there with her five children. Mr. Green is the father of some of those children but did not live permanently with her. She testified that he returned to her house earlier than she expected (around 3:15 p.m.), was angry about a phone, punched her in the face, slapped her, squeezed her throat, put a knife to her side. After the complainant told him to go ahead and stab her, the defendant put the knife down, started to cry and told her that he loved her, and was sorry. He conceded he had a problem. The complainant had muscle pain, but no observable injuries from the attack. She moved herself and her children out of the apartment.

Text Message Evidence

[4] In the middle of March, after receiving phone calls and text messages from the defendant during the preceding two weeks, the complainant went to the police. She was concerned that the defendant would not stop attempting to contact her. Central to the Crown's case were photographs taken of screen shots from the complainant's cell phone. These screen shots purport to be captures of text messages sent from the defendant's cell phone (647-294-4684) to her cell phone (647-447-1019) with a few return texts from her to him. The photographs of text messages totalling 74 pages were collectively made Exhibit 2.

[5] The photographed text messages have the date and time identified below the message. The messages indicate the sender to be the user of a phone with a number 647-294-4684. Ms. Morris says that number belonged to the defendant and he sent her all but a few of the text messages captured in Exhibit 2. The content of those messages indicates that the sender:

• Misses his family;
• Misses his "mina";
• Misses brina;
• Loves the complainant and wants to reconcile;
• Is just waiting for his probation to be over;
• Just slipped up the other day (message sent February 28);
• Accusing the complainant of taking his "princess" away;
• Wants to see his boys;
• Regrets what he has done and needs the complainant to return home;
• Loves both his girls, the complainant and Mina;
• Loves the complainant and that he just reacted because he thought the complainant had a phone he wasn't aware of;
• Says he is sorry about "gettin out my anger";
• Says he will never mistreat her again;
• Says he is sorry he lost his temper.

[6] Ms. Morris testified that the vast bulk of text messages in Exhibit 2, including all of the above, were sent to her from the defendant.

Defendant's Evidence

[7] The defendant testified. He denied he assaulted the complainant on February 26. He was not at the apartment that day (or any other day) because he did not know where she lived. And, although 647-294-4684 was his phone that he used throughout the relevant period, he did not send the text messages the complainant attributed to him.

Reply Evidence

[8] At the end of the defendant's evidence the Crown requested an opportunity to access the defendant's cell phone records. Since the texts were photographed screen shots with the relevant phone numbers connected to the conversations, the Crown initially was not of the view that phone records would add anything to the complainant's evidence. Only when the defendant testified to not sending the text messages, and the real possibility of fabricating text messages became apparent, did the Crown reluctantly ask for an adjournment to get the phone records of the defendant. I provided an opportunity to the Crown based upon this Court's knowledge that service providers have records of the times (and sometimes content) of text messages from one specific phone to another. The records department for the service provider (Rogers) contain a date and time of any text sent by one phone and received by another. The defendant argued that the law prevented reply evidence from the Crown in a case such as this, and that I not allow the phone records to be admitted.

Reply Evidence Framework

[9] The law regarding reply evidence was concisely encapsulated in a case referred to the Court by the defendant. In R. v. K.T., 2013 ONCA 257, Watt J.A. covers this area of the law in paragraphs 40 to 43 inclusive:

[40] The second admissibility rule that has a say in the disposition of this appeal governs the reception of reply evidence.

[41] The general rule with respect to the order of proof is that the Crown must introduce all the evidence in its possession upon which it relies to prove the guilt of an accused in its case-in-chief, before the accused is required to decide whether to adduce evidence in response, and to actually introduce that evidence: Campbell, at p. 693; R. v. Krause, [1986] 2 S.C.R. 466, at pp. 473-474. Inherent in this requirement are principles of trial fairness and the notion of a case to meet.

[42] The rule governing the order of proof in the context of a criminal trial prevents unfair surprise, prejudice, and confusion that could result if the Crown were allowed to split its case. Were it not for this rule, the Crown could put in part of its evidence in its case-in-chief, enough to survive a motion for a directed verdict, allow the defence to play through with its case, then add further evidence to bolster the case presented in-chief: Krause, at pp. 473-474; R. v. Biddle, [1995] 1 S.C.R. 761, at para. 13.

[43] But the rule about the order of proof erects no absolute bar to the introduction of further evidence by the Crown after the defence has closed. The Crown may be permitted to call evidence in reply after completion of the defence case where

i. the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or

ii. some matter that emerged during the Crown's case has taken on added significance as a result of evidence adduced in the defence case.

[10] The Crown argues that the second exception above applies in this case.

[11] I agree. While the complainant was cross-examined by counsel suggesting the text messages were not from the defendant, the defendant's evidence that he did not send all but one of the hundreds of text messages, gave additional significance to text messages, and their true originators. It wasn't until the cross-examination of the defendant that he offered that the texts seemed "made up". He said the complainant hacked into his private communications to impersonate him in order to get information from other girls. In addition, the defendant's phone records housed with the service provider were not in possession of the Crown or police when the Crown presented its case-in-chief.

[12] In my view, the test for admission of reply evidence has been met, and the phone records of the defendant shall be admitted.

Findings

[13] In my view, the defendant's phone records, when combined with his evidence that 647-294-4684 was his phone number that he used exclusively (later in his evidence he qualified that by indicating that he loaned the phone to his cousin, but that the cousin "he's always with me"), proves conclusively that he sent the text messages. And again, the content of these text messages suggest they are messages sent from the defendant to the complainant. Obviously, that is communication throughout a period exceeding two weeks. And, the content of the text messages indicates that there was some contact on or about February 26 (see paragraph 5 above).

[14] As a result, I do not believe the defendant's evidence that he did not send those text messages. He clearly did. Equally, I do not believe his evidence that he did not commit the other offences for which he stood trial. No reasonable doubt regarding his guilt is raised by his testimony.

[15] Accordingly, since it was admitted the defendant was on probation during the relevant times, with a term that he not contact or communicate with Subrena Morris (among others), he must be found guilty of Fail to Comply with a Probation Order between February 28, 2014, and March 17, 2014, (count 7) and similarly, regarding February 26, 2014 (count 6).

Reasonable Doubt on Substantive Charges

[16] And while I find Mr. Green likely committed the other five offences he faces, I have a reasonable doubt based on the third branch of R. v. W.D.

[17] The reasonable doubt arises from the evidence of the complainant. I had trouble with the following areas:

• Ms. Morris displayed a willingness to lie to authorities in order to gain advantage for herself to the detriment of the defendant. She admitted in cross-examination to buying time to prevent the defendant from gaining access to his daughter by having the CAS believe that the defendant was not the father. (See page 81 transcript August 8, 2014.)

• Ms. Morris testified that during the assault on February 26 that she was punched "hard" twice under the left eye by the defendant's fist. He also squeezed her neck, applying significant pressure with both thumbs. Yet, the complainant testified she "didn't have any physical injuries" (page 21 transcript). While not impossible, it strikes me as very unlikely that no physical injuries would result from the attack described.

• In the context of what Ms. Morris contends was a vicious attack including a knife held to her body, she testified that calling the police was the last thing on her mind. She had dinner with him that night, stayed with him that night, and made his lunch for the next day (page 70-71 transcript.)

• In the context of not wanting to involve police, Ms. Morris does just that about three weeks later based upon the defendant's threats. However, when the police responded to her call, Constable Jason Lee testified that Ms. Morris did not express or seem concerned about her safety, but, "rather more fixated on Green's possible interference with any new relationship she may develop with another man" (page 97 transcript).

[18] In addition to reasonable doubt arising from the complainant's evidence, and while I reject the defendant's evidence, I must consider independent evidence provided by the defence through the documents contained in Exhibits 3 and 4. That independent evidence comes from employment records which purport to show the defendant was at work during the time period of the alleged attack on February 26. While those records do not provide iron-tight proof the defendant was working until 4 p.m. that day, he does not have to prove anything. The exhibits provide evidence which raises a reasonable doubt, in conjunction with the reasonable doubt created above by the complainant's evidence.

[19] Regarding the Criminal Harassment charge (count 2), the evidence of Constable Lee that Ms. Morris did not seem concerned for her safety, negates an essential element of that offence (namely that fear was caused).

[20] Again, I want to be clear that I believe the attack Ms. Morris testified about likely happened, but the defence has raised a reasonable doubt, and the defendant must be acquitted on all charges except for the probation violations.

Released: May 13, 2015

Signed: "Justice Blouin"