REASONS FOR JUDGMENT

File No.: 2811 998 14 Y18138 01 and 2811 998 14 Y26030 02

Ontario Court of Justice

Her Majesty the Queen v. J.J. and J.M.

Court Information

Before: The Honourable Mr. Justice M.S. Felix

Date: Thursday, October 29, 2015

Location: Oshawa, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances

• T. Hewett – Counsel for Crown
• T. Thompson – Counsel for J.J.
• A. DiCarlo – Counsel for J.M.

REASONS FOR JUDGMENT

FELIX, J. (Orally)

Introduction

J.J. and J.M. are "young persons" per Section 2 of the Youth Criminal Justice Act charged with criminal offences arising out of an armed robbery that occurred on August 28, 2013.

The Crown's case focused on the evidence of two roommates who complained that they were robbed - C.M. and K.F. The two complainants were within their apartment unit shortly after midnight. C.M. testified that there was a knock at the door. When she opened the door two young male assailants entered the apartment. The first assailant struck C.M. in the eye with a firearm and she was guided to a position face-down on the floor. The second young man accosted K.F., went to her bedroom with her, and sought valuables. The assailants secured some cell phones and some money. The two males then fled the premises.

Identification of J.J. and J.M. was not in issue in this trial.

J.J. testified. He explained that both he and his co-defendant attended the apartment to engage in sexual relations with sex trade workers. He said that J.M. made the arrangements for the appointment. Once inside the apartment J.J. changed his mind and wished to leave the apartment. This provoked a dispute he says with complainant C.M. wherein she demanded payment for her time and threatened to get her "pimp". J.J. testified that he and J.M. fled the apartment. J.M. testified that he was not in possession of any weapon and any physical contact with C.M. was incidental to leaving the apartment and did not cause injury.

J.M. did not testify at this trial. He adopted the characterization of the events as described by J.J. through the submissions of his counsel.

Issues at Trial

Having considered the evidence at trial and the submissions of counsel there are three main issues to resolve:

1. Credibility and the Application of R. v. W.D.;

2. Whether the Crown has proven the offence of robbery beyond a reasonable doubt; and

3. If robbery is proven, whether the Crown has proven that a real operable firearm was used.

The Crown position was that a robbery occurred and that there was sufficient evidence to support the inference that a real firearm was used.

The Crown submitted that if there were credibility issues associated with the complainants and their work in the sex trade industry, this did not detract from the truth - a violent armed robbery occurred. The Crown left the credibility determinations to the Court pursuant to the analysis in R. v. W.D.

Defence counsel submitted that J.J. and J.M. attended the premises for a prearranged liaison with sex trade workers. J.J. had a change of heart. There was a dispute concerning fees. They fled the premises. There was no robbery.

Defence counsel submitted that the two complainants colluded to fabricate the allegation of robbery for several reasons:

1. C.M.'s eye injury meant that she needed medical attention. Contrary to their wishes, C.M. and K.F. realized that the involvement of the police was unavoidable.

2. The complainants did not wish for the police to focus on their sex trade work occurring out of the apartment. They wanted to minimize or avoid the sex trade work aspect of the event.

3. There was a 15 minute intervening period between the time that J.J. and J.M. fled the apartment and the police were contacted. The complainants colluded during this timeframe and agreed to fabricate an allegation of robbery and the use of a firearm for two purposes:

   • (i) drawing the police attention and focus away from the complainant's sex trade activities; and
   • (ii) to ensure the police took them seriously by the allegation of the use of a firearm given their employment as sex trade workers.

The Information

The defendants are charged with robbery contrary to Section 343(d) of the Criminal Code of Canada, weapons dangerous, and assault with a weapon.

Based on the evidence at trial and the submissions of counsel: date, time, jurisdiction, and identification of the two defendants before the Court is not an issue.

The Crown must prove beyond a reasonable doubt that:

• That the defendants stole items from one or both complainants, and
• That one and/or the other was armed with an "offensive weapon" as defined in Section 2 of the Criminal Code of Canada.

The structure of count one on the information alleges an armed robbery while armed with an "offensive weapon", namely a handgun contrary to Section 343(d) of the Criminal Code of Canada. Notwithstanding the inclusion of the word handgun in count one, I note that the Crown is not required to prove that an actual "firearm" was used during the robbery: R. v. Wills, 2014 ONCA 178 at para 48. The Crown must prove that the robbery occurred while one or both of the assailants was armed with an "offensive weapon" as defined in the Criminal Code of Canada. An "offensive weapon" is anything used, designed to be used, or intended for use in causing death or injury or to threaten or intimate any person.

The Crown Attorney and Defence Counsel filed very helpful written submissions concerning the evidence in relation to the use of a real firearm in this case.

I will first examine the evidence to determine whether or not a robbery while armed with an "offensive weapon" has been proven contrary to Section 343(d) of the Criminal Code of Canada. If I find that the Crown has proven robbery contrary to Section 343(d) of the Criminal Code of Canada beyond a reasonable doubt I will then consider whether or not the Crown has proven that a real firearm was used: Wills, supra, para 48.

A. Robbery Contrary to Section 343(d) of the Criminal Code of Canada

The Crown's case rests primarily on the evidence of the two complainants C.M. and K.F.

Evidence of Complainant C.M.

C.M. testified that she was up and received a phone call between 12 and 12:30 in the morning on the date in question. No one said anything. She noticed that this was the same phone number that had called the day before. No one spoke on that phone call either.

She testified that a couple of minutes after that phone call there was a knock on the door.

She opened the door and was immediately grabbed by a light-skinned male wearing a grey sweater approximately 5'11" with a short curly afro.

This male put her in a headlock and told her to "Shhh" and struck her in the right eye with an object resembling a firearm. Someone said get on the floor or go down on the floor and she described being assisted down to the floor with no further violence. She described the assailants guiding her to the floor with a hand on her arm and shoulder rather than forcing her to the floor.

She ended up prone on the floor in the front hallway of the apartment.

C.M. described the firearm as a black gun. She did not know if it was real or fake. She thought it was loaded because it was really heavy. She felt the weight of the object when it struck her. She described it as resembling a police issued firearm. She could not tell what it was made of.

C.M. testified that she saw another male near the staircase exit door next to the apartment. But she observed him only briefly because she was struck in the eye so quickly.

While face down on the floor she heard a discussion involving her roommate K.F. who had arrived in the vicinity of the front hallway. She could not distinguish which of the males was talking or if both were talking.

She overheard the assailants asking K.F. where the laptop and money and other valuables were located.

She overheard K.F. tell them that the laptop had a tracking device in it.

She testified that she knew the males had left when she heard the exit door slam (and that's the door adjacent to the stairwell).

C.M. testified that she did not suffer any loss. Her cell phone was under her body when she was taken to the ground so they did not take her cell phone. Her purse was in her bedroom but nothing had been taken.

In the aftermath of this robbery, C.M. was concerned with an injury to her eye. She testified that she and K.F. surveyed the apartment to determine what was missing. And then notified police.

During cross-examination by counsel for J.J., Ms. Martin, complainant C.M.:

• Provided evidence about the length of cell phone calls to her cell phone
• Evidence about her relationship and contact with K.F.
• Acknowledged that she was surprised at being hit in the eye and that the events moved quickly
• Acknowledged that the circumstances of her being put in a headlock was not in her police statement
• Acknowledged that she told the police in her statement it was weird that the assailants knew what to ask for (and that's a reference to the computer or the laptop)

C.M. denied the substance of the cross-examination - that: (1) there was a dispute over fees; (2) that she was "working" that night (that is to say working in the sex trade industry); and the rolled up submission ultimately (3) that she and K.F. took 15 minutes to discuss, collude and fabricate the allegation of robbery then called the police.

Evidence of Complainant K.F.

K.F. testified that she heard the knock at the door.

And then she heard C.M. yell "ow" loud enough that she got up to go see what was going on.

She was not expecting anyone that evening.

She came out of her room and observed two individuals almost on top of C.M.

She described a light skin male waving the gun around in a panicked state like he did not know which way to point it.

She described the gun being directed towards C.M. and then she described it being pointed towards her as she came down the hallway. She testified that she pulled back when she saw the gun because she did not want to get shot.

She testified that did not want to stare at the male with the gun because she did not want to get shot. The firearm was described as:

• An item with a barrel
• Black in colour
• It looked like a firearm
• It was short
• She described it as a hand gun
• She told the officer that it could have been a toy gun
• It looked like something a police officer would have
• She testified for all she knew it could have been a B.B. gun
• And notably while it was not in her statement to the police she testified that she believed she told the police that she not get a good look at the gun and was trying not to look at the gun. She noted in her testimony that that was absent from her statement

K.F. testified that the second male aggressively walked towards her and was asking "where's the money at" and other valuables?

He grabbed her phone from her.

He tried to take her laptop, but she told him there was a tracking device in it so he just left it.

Ultimately this male took $100.00 and three cell phones, left the laptop and ran out of the room.

She described this second male as appearing to be scared. She said he did not appear to be a hardcore gangster. He seemed like a scared kid. He was obviously nervous. And she testified that she was trying to remain calm in that situation. She actually felt that she was more calm than the person robbing her.

After both males fled, she described herself as trembling and scared and recognizing what had occurred.

She told the Court that she tended to C.M.'s injury, may have got her some ice. she examined the injury.

She told the Court that she called her mother based on instinct and told her mother that some kids came into her apartment and we got robbed what should I do?

Her mom asked her what happened?

Told her mom what happened to C.M. and the property was taken.

And ultimately she decided to call the police after that conversation with her mother because C.M. was hurt.

She testified that she thought she was on the phone with her mom for five or ten minutes.

Evidence of J.J.

J.J. testified that the purpose of his attendance that night was to meet prostitutes and have sex.

He testified that J.M. made all the arrangements for the appointment with the sex trade workers. And that he and J.M. walked for 30 minutes in the middle of the night to attend the appointment.

When they arrived at the apartment building J.M. dialed the phone, and said (J.J. did) that he "hopped on the phone" to let her know that they were outside the building.

A female answered and indicated someone would let them in.

J.J. testified that a gentleman came and opened the door. This person did not speak. He gave a head nod signal for J.J. and J.M. to enter the building.

As they walked towards the elevator J.J. testified that they still did not know what floor (and I infer) which apartment to go to. He said that J.M. dialed his phone, and that after he dialed his phone, he J.J. hopped on J.M.'s phone again to speak to the female and find out which floor. He says he was told the apartment number in that call.

They attended the apartment, he knocked at the door and he says that C.M. answered the door.

C.M. escorted him to a couch area and they sat down together. A second taller female (and it's not controversial amongst counsel that that is K.F.) brought J.M. down the hallway.

J.J. said that he sat on the couch. He testified that he really was not paying attention as he and C.M. engaged in a conversation of some sort. He zoned out. His attention was ultimately secured by C.M. snapping her fingers saying "Hello hello are we going to do this or not".

He testified that he was thinking about whether to go through with this.

He said to C.M. "Honestly I can't".

C.M. said "Can't do what".

J.J. said "Have sex with you".

He testified that C.M. then said "you wasted my time you have to pay me".

J.J. replied that "Pay for what?" You did not perform anything.

C.M. he says replied "Either you pay me or I will call my pimp on you".

J.J. says that he called to J.M. and stood up to leave.

He had a short conversation with J.M. saying "let's leave I cannot do this I am not comfortable". He described (J.J. did when he testified) he described J.M. as sympathetic and understanding.

He then testified that when he attended the doorway to leave C.M. proceeded to block the door area.

He says that she put her whole body on the door. He was trying to open the door.

He pushed past her and was able to leave the apartment.

He said he did not want to wait for the elevator and did not know the whereabouts of C.M.'s pimp.

So he saw the stairs on the left and took the stairs as the quickest exit available.

He testified that he was not armed with a firearm or anything similar to a firearm.

He said that he felt (I'll paraphrase what he said) but he felt that he used minimal force, the force needed to facilitate his egress from the scene.

He did not see anyone get hurt including C.M.

He said it is not impossible, but he feels like he would know if someone got hurt including C.M.

ANALYSIS

A number of issues must be examined to explain my judgment in this case.

I will commence with the question of how the Defendants met the complainants that night.

1. How Did the Defendants Meet the Complainants That Night?

I am well aware and I recognize that a court of law cannot and need not resolve every issue in a trial.

The issue of how the complainants and the Defendants met up that night is an interesting question. Having considered all of the evidence at trial and the submissions of counsel, I am mindful that the Court relies on the evidence produced by counsel, elicited by counsel and that is the record that is placed before me. Having considered all of that evidence, I am still not sure exactly how the Defendants met the complainants that night. I do find a number of observations relevant:

• J.J. testified that J.M. made the arrangements through a sex trade worker website. J.M. met him at his residence and they walked for 30 minutes to the apartment. J.J. testified as to the efforts he made to ascertain the apartment location for the liaison with the sex trade workers.

• C.M. testified that her phone number was in an internet advertisement for her sex trade services, but not the apartment number.

• C.M. says she received calls from the number the day before the robbery and night before the robbery. There was no one on the phone and no discussion. K.F. testified (when her memory was refreshed by cross-examination by defence counsel) that she called the relevant phone number and a male person answered.

• In direct examination, C.M. testified that she opened the door without checking to see who was attending the premises after midnight. During re-examination her memory was refreshed from her police statement wherein she said she looked through the peephole, saw someone, and assumed they were visiting K.F.

• C.M. testified that they were not working as sex trade workers out of the apartment, but that they did work "in the area".

• K.F. was asked about her statement to the police during cross-examination wherein she apparently told the police that she and C.M. worked together as sex trade workers out of the apartment. K.F. did not adopt this part of her statement to the police. Counsel for J.M. did not prove the statement was made.

• C.M. testified that she was not working the day of the robbery and that they had not worked out of the apartment.

• It is also interesting that according to the complainants J.M., immediately upon entry to the apartment, asked for a computer or laptop in addition to other valuables. The question being, how did he come to possess this peculiar information?

• There was no evidence of any prior association between the Defendants and the complainants. No evidence of any prior contact. No evidence of any animus between the Defendants and the complainants. C.M. did say she might have seen J.J. at a variety store in the past on one occasion that was it.

• No phone records were filed with the Court, however C.M. acknowledged during cross-examination that certain records showed that her phone number was connected for several seconds with a relevant phone number in this trial, but C.M. denies speaking with anyone that night.

• And I will get to this a little in more detail in a moment but I have also considered a surveillance video in this case and on that video you can see J.J., J.M. and another male using cell phones.

After careful consideration of this issue, trying to figure out how it is that the Defendants came to meet the complainants that night, I have come to the determination that I cannot resolve that issue definitively, but I am confident of a few conclusions:

1. It was not a random event, coincidence, or a chance meeting;

2. I am undecided about whether either or both complainants were "working" (that is to say providing sex trade services) that specific night; and,

3. I do suspect that C.M. and K.F. have not been completely forthright about their provision of sex trade services out of the apartment generally.

Notwithstanding some lack of clarity in this area, and the fact that some specific findings in this area elude me, when I consider all of the available evidence in this case I tend to the view that the complainants have sought to downplay or minimize the sex trade worker aspect of these events. While I cannot definitively find that the premises were used generally for the purpose of providing sex trade services, I must admit to at least a strong suspicion that they were for the following reasons:

1. Both complainants had experience as sex trade workers and were employed in that capacity.

2. C.M. claimed not to know K.F.'s last name. K.F. testified that C.M. provided money towards rent and groceries, but did not pay a regular rent. During cross-examination K.F. acknowledged telling the police that she lived alone. I think that C.M. contributed to the expenses, but did not pay formal rent as she described in her evidence. This line of cross-examination by defence counsel for J.J. and defence counsel for J.M. provided evidence that I agree tended more to a functional relationship relating to sex trade services.

3. As recently as the day prior to the robbery C.M. had worked as a sex trade worker.

4. There was what can only be described as a "stripper pole" in one bedroom that was purchased by K.F.. Ostensibly this was suggested in evidence that this was for exercise purposes. Defence counsel argued that this was more evidence of the "work" (that is to say sex trade work) occurred in the apartment. I tend to agree.

5. There was a large black shade in one bedroom that K.F. suggested was used to facilitate make-up application. Defence counsel for J.J. insinuated that it was related to the "sex trade work" occurring in the apartment. Again, although this wasn't particularized as it was put to the complainant, I tend to agree.

6. When asked how the two assailants could have obtained her phone number and address, C.M. suggested (and I should say really she speculated) that it was from a sex trade services ad on the internet. Given this explanation it might be reasonable to find that their apartment was the site of the services provided. But for all I know C.M. is telling the truth and they worked outside of the unit, but in the area for example in another unit. That issue was not pursued further. For all I know C.M. and K.F. had different advertisements or the advertisements changed from time to time. The evidence just is not clear on this point.

7. J.J. testified that it was his belief that J.M. obtained the relevant information from a sex trade ad on the internet. This could be true.

8. C.M. opened the door to the apartment between 12:00 and 12:30 in the morning. Neither complainant was expecting anyone. Yet C.M. thought it might be someone coming to visit her roommate K.F.

I tend to agree with the defence contention that sex trade activities were occurring within the apartment generally. I believe that it is possible that C.M. and K.F. have downplayed, minimized, and perhaps not told the whole truth about their sex trade activities occurring within the apartment.

For the reasons I will address further throughout this judgment, including my overall findings as to the credibility of C.M. and K.F., I am not satisfied however that sex trade services were being provided on the very night of the robbery.

This provokes an issue in my mind with respect to the overall credibility of C.M. and K.F. that I must resolve. Given I am satisfied and suspect that neither complainant has been forthright about the provision of sex trade services out of the apartment generally, does this call into question their evidence concerning the allegation of robbery? Put another way, if the complainants have downplayed or minimized the sex trade worker aspect of the allegations, does this mean that they have in fact colluded to fabricate the allegation of robbery involving J.J. and J.M.? Does this finding support one pillar of the defence evidence - that J.M. and J.J. attended for the purposes of a sexual liaison?

I think it is appropriate to consider this question at the commencement of these reasons as components of the analysis pursuant to the R. v. W.D.

If I accept the evidence of J.J., then I should acquit both defendants. This would mean that I accept that there was a fee dispute and that the components have colluded to manufacture the allegation of robbery.

If I do not accept the evidence of J.J., but I am nevertheless left with a doubt by his evidence, I should still acquit both defendants.

If I do not accept the allegation of robbery made by the complainants, obviously I should acquit the defendants.

If the approach of the complainants with respect to minimizing, downplaying, or not telling the fulsome whole truth about sex trade activities occurring within their apartment causes me to doubt their version of events, or causes me to have a doubt overall having regard to all of the evidence in this case, I believe I should acquit the defendants. If this issue raised a doubt in my mind as to any aspect of the Crown's case relevant to proof of robbery to the criminal standard I would acquit the defendants. Finally, if this issue caused me to be unsure as to whether I believed the complainants or I believe J.J. with respect to the allegations involving the robbery, this would equate to having a doubt, and I would acquit the defendants.

I am mindful that a criminal trial is not a credibility contest between the complainants and the defendants. My focus must be on the criminal burden of proof and entertaining a credibility contest implies that J.J. and J.M. have some obligation to establish something. This is contrary to the presumption of innocence.

I have had several weeks to consider the evidence in this trial. I have reviewed the record of this trial more than once. I have actually listened to the submissions of counsel several times and I have reviewed the written submissions. I have to make the best decision I can while honoring the basic core principles in criminal law concerning the presumption of innocence and the burden on the Crown.

I have come to the considered conclusion that I accept the complainant's evidence that a robbery occurred notwithstanding my belief that they downplayed, minimized, or did not tell the fulsome whole truth about the sex trade aspect of this matter. For the reasons I will outline, I accepted the evidence of C.M. and K.F. that a robbery occurred. I do not believe that C.M. and K.F. colluded to fabricate the allegation of robbery. In addition, for the reasons I will explain, I did not believe much of the evidence provided by J.J.

2. The Evidence of C.M. and K.F.

Particularly focused on the evidence of C.M. and K.F. overall I make the following findings:

1. I found the evidence from both complainants to be blunt, simple, and straight forward. I do not wish to be disrespectful to the complainants, but I must say neither witness was particularly elegant or articulate but the simple facts were persuasively described.

2. I found C.M. to be credible when describing the impact of the robbery. She testified that in her time in the sex trade industry, she had never had what is known as a "bad date". She had only been in the industry for a period of months. And after the event she cut herself off from the second complainant (my characterization not hers) and described efforts to get her life back together. I found it telling that after the incident she was also angry at the assailant who struck her for needlessly (in her mind) damaging her face in a visible and long-lasting way given that she made her living partly based on her appearance.

3. Certain features of C.M.'s evidence leant credibility. For example, she did not exaggerate the violence when she was struck with the weapon. She described being guided to the floor rather than being roughly manhandled to the floor. There were no specific threats uttered. Just a caution "Shhhh" to keep quiet. She was told to get down on the ground.

4. Certain features of K.F.'s testimony also imbue her with credibility. She described the assailants as appearing to be scared or fearful. She clearly conveyed to the Court in unmistakable terms that these were young men who did not appear to know what they were doing. Who did not appear to be experienced and were scared. K.F. appeared older than C.M. and quite frankly presented to me with a harder more analytical demeanor. I observed that either complainant (but particularly K.F.) could have easily over-emphasized the violence in this incident or exaggerated the effect on the complainant. K.F. did not seek to do so and in fact portrayed herself as calmer than the robbers during the robbery.

5. Both C.M. and K.F. testified that they believed that the first assailant was armed with a firearm. But both witnesses emphasized that they were not sure. C.M. reasonably volunteered that it could have been an imitation. K.F. also acknowledged this. I thought that both complainants were particularly reasonable in this observation given the circumstances. I took particular note of K.F. telling the Court that she had specifically told the police that she was trying not to look at the gunman or the firearm in an effort to keep him calm, yet this fact was not reduced to writing in her police statement. This is the type of evidence I had regard to when I considered the defence submission that the complainants colluded to fabricate the allegations.

6. There was no prior relationship between C.M., K.F. and the Defendants.

7. Neither complainant was challenged during cross-examination such that they materially changed their evidence in-chief. For example, counsel for J.M. challenged C.M. concerning statements she might have made to the medical professionals treating her after the event. I thought the line of cross-examination was to suggest that she had made prior inconsistent statements or potentially had made prior inconsistent statements. C.M. did not adopt the suggestions provided and the suggested conversations were not proven. I did not think on another note it was significant that C.M. left out the detail about being in the headlock. As I understood her evidence it was disclosed prior to trial and I considered her perspective as a person who I was satisfied had been violently assaulted during a robbery. Counsel for J.J. cross-examined C.M. about the length of telephone calls that she received and whether there was any conversation. This cross-examination did assist in my determination that the complainants were downplaying the sex trade worker aspect of the incident overall. Cross-examination also caused C.M. to adopt portions of her statement to the police relating to what she and K.F. did after the robbery and prior to calling the police. It was suggested to both complainants that there was a 15 minute delay in contacting the police after the robbery. It was suggested that this was the timeframe wherein the two complainants determined to collude and fabricate the robbery allegation. Both C.M. and K.F. strongly rejected the suggestion. C.M. explained that she was tending to her injury and examining the apartment for loss. K.F. explained that she tended to C.M.'s injury, examined the apartment for loss, and frankly, called her mother based on instinct. The time period was explained and there is nothing to support the submission or cause me to believe that C.M. and K.F. used this time to fabricate the robbery.

8. Certain material features of J.J.'s evidence were not put to the complainants (particularly C.M.). I will outline further in this judgment how this impacted my assessment of J.J.'s credibility (See R. v. Dexter 2013 ONCA 744) later on in this judgment.

In the end, I think that the complainants have downplayed or minimized their sex trade activities but this does not detract from their evidence about the circumstances of the robbery.

When witnesses testify there are often unseen pressures (for example in the context of some domestic assault prosecutions or other familial-related prosecutions).

Defence counsel, Crown Attorney's, police officers and other criminal justice system participants might be aware of many challenges experienced by sex trade workers including:

• (a) Legal questions about the activity;
• (b) Treatment by customers;
• (c) Exploitation by "pimps";
• (d) The societal view and morality of their activity; and,
• (e) Treatment by law enforcement.

In this case it does not take much for me to find that some of these pressures are evident. My observation of both complainants throughout lengthy testimony is that they were cooperative and relatively polite but clearly not enthusiastic participants in the criminal justice system. Both complainants testified that they did not want to pursue a criminal trial. This was particularly evident with K.F. I issued a material witness warrant for her arrest to secure her attendance and after a day of testimony she inquired of the Court whether her further attendance was required. With respect to C.M. it appeared that this demeanor was because she had put this matter into the past and had difficulty revisiting it. K.F. seemed more concerned with more pragmatic matters such as the distance she had to travel and those types of issues. She inquired directly of the Court whether she needed to return after a long day of evidence.

It is my considered view that this what I term "institutional reluctance" on the part of these two witnesses was not related to a lack of truthfulness on their part or the suggestion that they colluded to fabricate the allegation of robbery. They were naturally reluctant to expose the nature of their employment to the authorities. It is understandable that they were adverse to police involvement in their affairs.

I am not convinced that the premises were being used for sex trade services on the particular night in question. I accept the evidence of C.M. and K.F. that they were not "working" that particular night. C.M. was in clothing associated with her retiring to bed. It was noted in evidence that she changed her clothes when police were contacted. She was not working that night because of the passing of her aunt. K.F. testified that she was not working that night.

I do not perceive a crucial conflict between my suspicion that the complainants have downplayed, minimized, or not told the complete truth about their sex trade activities in general with my finding that they were not working that particular night. It is trite law that I may accept all, none or part of a witnesses' evidence. Pragmatically, the criminal law accepts that witnesses may not be entirely forthright for reasons both within and outside the evidentiary record before the Court. This is why the evidence of a witness should be assessed as a whole and not subjected to a piecemeal analysis. Obviously if I were to reject evidence on a crucial aspect related to credibility or advanced as proof of the elements of the criminal offence when the criminal burden of proof governs and the Defendants should be acquitted. When I examine the evidence of the complainants in the context of all of the evidence at trial, including the evidence of J.J., I conclude that a robbery did occur that night.

There are four important factors relevant to my ultimate conclusion in this case:

1. I believe the evidence from C.M. and K.F. that they were the victims of a robbery;

2. I do not believe much of the evidence provided by J.J., nor does it provoke a doubt in my mind;

3. My review of the surveillance footage in this case; and,

4. The fact of the physical injury suffered by C.M.

These factors are intertwined with my analysis of the circumstances of that night. I will now discuss several additional features of this case and how I came to the determination that a robbery did in fact occur.

3. The Arrival of J.J. and J.M.

Surveillance video from the apartment building was played during this trial and filed as an exhibit. It shows the arrival of J.J. and J.M., their interaction with two other males, and shows their egress from the scene. I have had the opportunity to review the surveillance video footage (I must be honest) countless times. I have watched it over and over again. It is challenging to articulate body language and non-verbal communication, but the following description will have to suffice for this record.

I make the following findings in relation to this surveillance video:

• The quality of the footage is excellent.

• J.J. and J.M. attend the apartment building at 12:06:55 hours.

• A young male (who I will term "Male #3") engages a panel used to buzz in apartment guests at 12:07:11 hours.

• Male #3 opens the door at 12:07:27 hours and J.J. and J.M. enter first and go to the lobby.

• At 12:07:33 hour when J.M. enters the building it appears that a cell phone is against his right ear. When he enters the lobby at 12:07:42 hours J.M. is still on that cell phone and he removes the cell phone from his ear at approximately 12:07:50 hours.

• There is no audio but I find that there does not appear to be any conversation or gestures amongst Male #3, J.J., or J.M. associated with the entry into the building.

• I note that Male #3 remains at the front door and holds open the door.

• At 12:07:42 Male #3 appears to be manipulating a smart phone or cell phone of some kind with both of his hands.

• At 12:08:24 a fourth male - Male #4 (that is what I call him) attends and enters with Male #3.

• All of this time J.J. and J.M. have remained in the lobby.

• I observe J.J. press a button for an elevator. I observe the elevator arrive and neither J.J. nor J.M. take the elevator. They wait I find for Male #3 and Male #4.

• J.J. and J.M. stay in the lobby of the building and look towards the front door - towards Male #3 a couple of times.

• At 12:08:07 hours, J.M. passes his phone to J.J.

• J.J. has the phone to his ear from 12:08:07 until he enters the elevator at 12:08:34.

• It does not appear that J.J. is having a conversation on the phone.

• Male #3 and Male #4 enter the elevator without word or gesture to J.J. and J.M.

• Immediately J.J. follows Male #4 into the elevator.

• And then he gestures to J.M. to follow him into the elevator.

The defence position is that Male #3 and Male #4 are not associated to J.J. and J.M. J.J. testified that he did not know Male #3 and Male #4. The inference submitted based on the evidence is that these males were dispatched by the sex trade workers to grant entry to the apartment building and so these males are associated to the complainants.

The Crown position is that it is quite evident that they are associated. I am mindful that the Crown is not required to prove individual pieces of evidence beyond a reasonable doubt. I must assess the evidence in the context of the entire case.

As the trier of fact I have listened to the submissions of the Crown Attorney and defence counsel but I am conscious that I must make my own determination as to what I see in this video and the weight of this evidence. As I said I have watched the video countless times while considering the issues in this case. It is powerful independent evidence and I have come to the firm conclusion, contrary to the evidence of J.J., that Male #3 and Male #4 are associated to J.J. and J.M. for a number of reasons:

1. First of all, J.J. testified that he contacted the sex trade worker by telephone outside the building to find out which apartment to attend. The female person who he spoke to said "someone will let you in". He agreed when he was testifying (J.J. did) that very shortly thereafter Male #3 three granted entry. When one examines the surveillance video Male #3 three is observed arriving 16 seconds after the arrival of J.J. and J.M. J.J. did not testify where Male #3 came from. Did he come from the parking lot? Did he come from inside the building? We do not know. On the evidence of J.J. he simply materialized.

2. J.J. says that he called once from outside the apartment building for the purpose of obtaining the room number. He is not observed on the surveillance video using the phone at the entrance to the apartment building.

3. J.J. testified that the male who let him in gave them a head node gesture to give him the signal to let him in. If that indeed occurred I do not see it on the video. There is no perceptible acknowledgement by Male #3.

4. J.J. was mildly inconsistent concerning the telephone calls at first. to be frank I attributed that to his nerves when he was testifying. But he ultimately clarified his testimony. He said that he contacted the sex trader worker outside of the apartment building lobby for the purpose of obtaining the apartment number. As I said the women who answered told him someone would let him in. Once in the lobby of the building J.J. testified in-chief that at this point J.M. dialed the phone again and he, J.J., took the phone from J.M. to speak to the sex trade worker for the purpose of getting the apartment number. When this rather strange event was presented to J.J. again during cross-examination by the Crown Attorney, J.J. changed his evidence. He explained that he got on the phone because he wanted to obtain a "vibe" from the sex trade worker and this is why he secured the phone from J.M. The apartment number was provided to him.

I have issues with this evidence:

1. First of all, within a matter of a few seconds the sex trade worker who did not provide the apartment number just before 12:06:55 hours when J.J. says he called from outside of the building provided it at 12:08 hours, two minutes later.

2. One would imagine that the time required for the sex trade worker to say "apartment 311" or words to that effect would be relatively short measured in a couple of seconds yet J.J. is on the phone from 12:08:07 to 12:08:34 hours.

3. There is no audio on the video and despite viewing the video at the highest resolution on a large screen that I secured for this purpose, I could not see any evidence of J.J. moving his mouth on the video or having any discussion on the video.

4. During cross-examination C.M. confirmed business records that indicated that her cell phone was contacted at 11:46 the night before for 39 seconds, 11:54 for 28 seconds, and 12:07 for 19 seconds by the relevant cell phone number. No one spoke to her. The business records do not support the sequence of events described by J.J. He says he made one call at the entrance of the apartment building to obtain the apartment number. This would have been at approximately 12:06 or shortly prior. He made the second call in the lobby from 12:08:07 hours until 12:08:34 hours. This call lasts approximately 28 seconds which could potentially match up with the call at 11:54 indicated in the business records but not the call at 12:07. I appreciate that I have heard no evidence concerning the cell phone records and their accuracy. The cell phone records were not even filed in this trial. I appreciate as well that it could be that the length of the call displayed in a business record is not an accurate representation of the actual length of the call in reality. Certainly I am aware of that type of evidence from other cases. But I have not heard that evidence in this case. Certainly the time on the surveillance video may not correspond to the time in the business record. But in the final analysis I only see J.J. using the cell phone once. I do not see any evidence of a conversation in the lobby. To the contrary, it appears as if there is no discussion on the phone.

5. Leaving aside the dubious proposition that the provision of an apartment number would give anyone a "vibe", why didn't J.J. simply get this vibe during the first call that he says he made outside the apartment building approximately two minutes earlier?

6. Having walked for half an hour in the night to attend at this apartment for the purposes of this liaison, why assess the vibe from the lobby? A short ride up the elevator and you will be able to assess the vibe and the physical appearance of the sex trade workers. You will get all the information you will need. That information was a short elevator ride away. Yet J.J. would have me believe that he needed to make a phone call to get that vibe.

7. J.J. further testified that neither he nor J.M. asked Male #3 (who I see on video) or Male #4 (who I see on video) a simple question - what is the apartment number? If it is true that the woman on the phone said someone will let them in it is imminently logical to ask the "doorman", "pimp", whoever he is where do I go? J.J. testified clearly that he felt the two males were associated with the sex trade workers. Yet he nor J.M. never asked a simple question - where do we go? As a result, this convoluted explanation about a second phone call to the apartment was required to request the same information. It is illogical and inefficient for a sex trade worker to dispatch someone to grant entry and then also have to take a phone call to provide the apartment details to the client. Given this frankly stark illogical and unlikely event, J.J. provided the "vibe" explanation. He says J.M. apparently dialed the phone and he jumped on the call and took over once again to determine the answer to the simple obvious question - what apartment number or where do we go? When pressed on cross he came up with this "vibe" explanation.

8. If it is true that Male #3 and Male #4 were dispatched by the sex trade workers to grant entry to the apartment building it is curious that on J.J.'s evidence neither male escorted J.J. and J.M. to the apartment or volunteered information to J.J. or J.M. relevant to their attendance. On the evidence of J.J., the two other males never even spoke. On J.J.'s evidence they did not escort them to the apartment. There was no confirmation discussion with these "doormen" or "pimps" saying I have got the apartment number. I guess we are going to 311 or anything like that. Further J.J. testified that he did not even know where these two males went, yet they all got on the elevator together.

With great respect to J.J., I did not believe his testimony about the "vibe" and the machinations around determining the apartment number. In my view, J.J. was attempting to explain away two important objective pieces of evidence captured by surveillance video - the fact that there were four individuals that attended that night. The fact that he is seen on surveillance video using a cell phone shortly before the robbery. The convoluted explanations do not sit well with the objective evidence of the surveillance video. The nonsensical "vibe" explanation does not explain the objective evidence on the video surveillance.

My respectful view and my assessment of the interaction between J.J., J.M., and the two other males is that they are associated to each other. That they are together. I do not find that Male #3 and Male #4 four are strangers to J.J. and J.M. I must examine the video as a piece of evidence within the framework of all of the evidence at trial. That analysis includes the evidence of J.J. I do not believe J.J.'s evidence that Male #3 and Male #34 are unassociated with him. That conclusion, in combination with the other considerations I have and will outline in this judgment, means that I have grave concerns about his evidence.

4. The "Doormen" (Male Number Three and Male Number Four)

Counsel for J.J. was eminently prepared and meticulous in presenting the defence case. But having close regard to the testimony of J.J., explicitly endorsed by J.M., there is an interesting factor.

At no point was it put to the complainants C.M. or K.F. that they had two doormen downstairs granting entry. This characterization of Male #3 and Male #4 arose during the testimony of J.J.

5. The Interaction Between J.J. and C.M.

A core feature of the defence evidence provided by J.J. was his interaction with C.M. He testified that:

• He knocked at the door and C.M. answered the door.
• C.M. escorted him to the couch area they sat down together. The second taller female (K.F.) brought J.M. down the hallway. And I have recounted earlier step by step the sequence of events involving his conversation with C.M., specifically what he said, what she said and in particular the threat made by C.M. "either you pay me or I will call my pimp on you".

During cross-examination of C.M. it was suggested to C.M. only that there was a dispute over fees. The substance of this evidence emanating from J.J. was not put to C.M. The core substance of J.J.'s evidence was a dispute over fees after a change of heart, the threat to involve her pimp and the meeting at the couch. I will come back to that in a moment.

6. Flight From the Scene

J.J. testified that he and J.M. took the stairs rather than the elevator when they fled the apartment unit. The surveillance video shows that J.J. and J.M. in fleeing the scene appear to re-attend the entrance area of the apartment where the two "doormen" let them in. In trying to flee they attended the location where the doormen/pimps would have been seen.

J.J. testified that he was first out of the apartment and down the exit stairs. When it was pointed out to him during cross-examination that J.M. is observed on the surveillance footage first coming down the stairs, J.J. modified his testimony and said that somehow he had slipped on the stairs and somehow J.M. got past him thereby reversing their order.

This was a convenient explanation on the part of J.J. in an attempt to reconcile his version of the events with logical determination that if, as he says, he was the first to get out of the apartment unit and head immediately for the stairs that were approximate to the door exiting the apartment he would have been the first person seen on the surveillance footage.

In addition, the Crown urges the Court to find that J.J. is concealing something in his heavy warm sweatshirt hear his waist. It is August 28th? Why is he wearing a sweatshirt? It is in indeed suspicious but my close review of the surveillance video does not support such a finding. It is not clear to me that there is an item in the sweatshirt. Furthermore, as much as I do not accept J.J.'s evidence about the events within the apartment, I cannot reject his explanation provided in court that he was just fixing his pants. Given I cannot reject that explanation, I do not find that he was concealing a weapon as suggested by the Crown in submissions.

7. The Cost Associated with the Meeting with Sex Trade Workers

J.J. testified that J.M. made all of the arrangements for the meet with the sex trade workers. During cross-examination he said:

1. That he did not know how much money it would cost.

2. That he brought money but could not remember how much.

3. Then J.J. said he probably brought $100.00.

4. Then he testified it was less than $100.00.

5. He testified he did not know if J.M. brought money.

6. Then he said he did not know if J.M. brought $100.00.

Ultimately during cross-examination J.J. testified that he is not even sure how he came up with the figure $100.00. He had no prior experience to relate to. No one told him to bring $100.00. Specifically he said J.M. did not tell him to bring 100. He simply brought cash and was guessing at the amount. He also indicated that he never provided any money to C.M. upon entering the unit to engage sex trade services.

The totality of this evidence was not helpful to his credibility.

It was suggested in cross-examination that a first time customer in strange premises having been just threatened with the attendance of a pimp would have simply chosen the easy course and paid the money and got out of there. The inference being if there was the threat of an unknown pimp it would have been safer and easier to pay the money. Recall that on J.J.'s evidence two doormen (apparently associated with the complainants) materialized - just appeared upon his attendance at the apartment. He is concerned they might be the pimps. I will be charitable and describe J.J.'s reaction to the suggestion on the stand as indignant. He indicated why should he pay when there was no service provided? He seemed to be concerned about his rights as a customer more than the controlling fear of the threat of the attendance of a pimp. But then that threat of the attendance of a pimp is what caused him to flee at high speed out of fear. It is curious that he does not know how much of the hard earned money he received from his grandfather was at risk. If all of this was true, the actual amount in issue would have been an important consideration one would think.

8. Positioning of C.M. on the Ground

It is a minor point, but both C.M. and K.F. are consistent with respect to the positioning of C.M.'s body on the ground after being struck during the robbery.

9. Injury to C.M.

I must respectfully disagree with the Crown's approach to this evidence in submissions. The Crown submits that I should be critical of J.J.'s evidence on this issue as he has provided no explanation for how the eye injury was caused to C.M. I understand why the Crown would submit this - it was a recognition that even the defence position accepts that injury was caused as I have outlined earlier in this judgment.

I am of the view that J.J. is not obligated to provide an explanation.

He testified that he did not injure C.M. on his egress from the apartment unit. He acknowledged while it was possible that she was injured, he did not observe her being injured, and he certainly did not cause any injury.

I am concerned about two features of his evidence.

First of all, he testified that the complainant C.M. was blocking his egress from the apartment. He described her as yelling at him. He said she began with her back to the door then she turned around and put her forearms on the door. On J.J.'s evidence she positioned her body in the middle of the door in these efforts. She was not grasping the handle of the door from the inside. She did not touch the handle at all in her efforts to keep the door shut. This oversight on C.M.'s part permitted J.J. to grasp and pull the door handle in his effort to leave. He testified that C.M. did not touch his body. He testified that she did not even touch his hand as when he grasped the door handle and used his physical size to wrestle the door open.

Further, I note that during direct examination J.J. did not relate any associated conversation with C.M. during his attempt to leave the unit. His evidence about what she said ended with the dispute over fees to be paid and her threat to call her pimp on him. During cross-examination he added to his evidence. He testified that he said "excuse me can you get out of the way I am trying to leave". And that the response was C.M. was yelling at him and saying that he was not leaving until she got paid. J.J. is an intelligent articulate young man. I am not sure why this important part of the narrative only came out in cross-examination.

Once again, neither issue was canvassed with the complainant C.M. Not the suggestion that she was trying to impede J.J.'s egress from the scene. Not the conversation where in J.J. said "excuse me can you get out of the way I am trying to leave".

I am satisfied on all of the evidence that C.M. received an eye injury and received medical treatment for her injury for the following reasons:

1. C.M. testified that this occurred and I accept her evidence.

2. C.M. took pictures of her eye and the injury in the hospital and later on. These photos were not provided prior to trial. The witness, C.M., only provided the photos I believe the morning of trial secured from a phone possessed by her. The dates and times of the photos were obtained from the phone in court. The Crown arranged to print out the photos from her phone. These photos were filed as Exhibits 2, 3, 4, 5 and 6. The first three photos were taken in April 2013 proximate in time to the event. She received medical treatment at a hospital and wore a patch over her eye for a period of time. I believe that Exhibits 5 and 6 were taken at home. These exhibits clearly display an injury to C.M.'s right eye and bruising. The manner in which the photographs were produced and disclosed and provided to the Court, the date stamps, the time stamps and what the photographs show give me some security in finding that there was an injury to C.M.'s eye proximate to this event in the apartment, however they do not assist with causation.

3. K.F. testified that she saw the aftermath but did not actually see J.J. strike C.M. in the eye. She assisted C.M. with the treatment after she was struck in the eye. When I consider the defence submission that the complainants have colluded and fabricated the event it is curious that in their collaboration K.F. did not testify that she observed the most important part of the robbery - the striking of C.M. with a weapon resembling a firearm in the eye.

4. While counsel for J.M. inquired of medical records associated with the injury during cross-examination of C.M. and initially appeared to be questioning whether medical attention was actually received by C.M., this issue went no further and there was no submission by either counsel that this evidence was unreliable or false. I would imagine that it is a fairly simple exercise to confirm or deny whether the complainant received medical contested, medical records or the lack thereof or some other information would have been presented to me.

5. The defence theory that having regard to C.M.'s eye injury, the complainants colluded and fabricated with the twin goals of directing the police attention away from their sex trade activities and ensuring that they were taken seriously by the police is an interesting observation. As counsel for J.J. put it - say "gun" and the police pay attention. The problem with this theory is that the complainants did not need to fabricate anything in order to get medical attention in the Province of Ontario. They could have simply gone to a hospital and made up some other explanation for the injury to the eye. They could have gone to a hospital and demanded recognize however that the Defendants need not establish this theory or any other theory in this case. They are entitled to simply address the evidence that has been heard in court and I know that the defence need not address motive. But having presented this theory it is evident that defence counsel are grappling with the same reality that the Court is grappling with - factually C.M. did have an injury to her eye. Factually, she did receive medical attention for her eye. And the suggestion that there was collusion or fabrication does not account for the fact of the eye injury.

6. In the mere dispute concerning fees described by J.J. he did not acknowledge any circumstance that would have given rise to serious injury or even medical attention. While J.J. reasonably acknowledged that anything was possible, he testified that he did not cause any injury to C.M. and did not see any injury on his egress from the apartment. As correctly pointed out in submissions by counsel to J.J. I am not in a position to draw inferences or speculate that the injury was caused by C.M. coming in contact with the door in some fashion or the door knob.

7. Once again there are material parts of J.J.'s evidence that were not put to complainant C.M. The evidence concerning the struggle at the door where essentially C.M. (if I accepted the evidence of J.J.) was forcibly confining him in the apartment and the conversation with her at the door where he politely asked her to give way so he could leave. These features were significantly not put to C.M.

In the final analysis I accept that C.M. had an injury to her eye. And having regard to all of the findings in this case I have no doubt in my mind that J.J. caused this injury during a robbery by striking her with an offensive weapon resembling a firearm.

Credibility of J.J.

I have outlined in this judgment areas of evidence that J.J. provided in viva voce evidence that were not put to the complainant C.M. including:

1. The suggestion that Male #3 and Male #4 were pimps or doormen assisting C.M. and K.F. by granting entry to clients;

2. That J.J. attended to sit on the couch inside of the unit;

3. That J.J. and C.M. engaged in a discussion while sitting on the couch;

4. That C.M. threatened J.J. by telling him that if he did not pay she would notify her pimp;

5. The confinement of J.J. by C.M. at the door, her efforts therein, and

6. The conversation with C.M. at the door.

A decision of the Ontario Court of Appeal in R. v. Dexter, supra assists with these Browne and Dunn issues. While it was clear throughout the trial that the defence position was that no robbery happened and what occurred was a dispute over fees, some of the key material areas were not put to C.M.

The overall conduct of the defence made it clear that the evidence of C.M. and K.F. would be contradicted. But cross-examination on material elements of J.J.'s version of events did not occur. I must accept that perhaps sitting on the couch with C.M. is not terribly material. But the suggestion that C.M. threatened to call her pimp, a threat that J.J. says he took seriously is material. The evidence from J.J. that C.M. obstructed his escape by essentially trying to confine him to the apartment unit is also material. The conversation he had with C.M. at the apartment door might reasonably be material or it could be part of a "dispute over fees". Finally, the suggestion that Male #3 and Male #4 were actually associated with C.M. and K.F., rather than associated with J.J. and J.M., was materially relevant to the defence position especially given the evidence provided by the surveillance video.

I want to be very clear here. Counsel for J.J. was not obliged to put every single feature of J.J.'s version of events to C.M. I do not know why these areas were not canvassed. I found the conduct of the defence by counsel for J.J. to be thorough, complete, strategic, and effective in other areas. In effect, counsel for J.J. lead the defence in this case and clearly engaged in meticulous preparation. In some areas (as I have already outlined) her cross-examination was the determining factor in my analysis (e.g. that the complainants likely engaged in sex trade work generally within the apartment).

This issue was not addressed by the Crown Attorney during the trial or submissions. There was no objection from the Crown. Both the Crown and Defence, if they considered this issue, apparently left it to the Court to determine in weighing credibility. And as Dexter points out, this is one of the appropriate ways to address this evidence.

I have carefully considered the guidance in R. v. Dexter, supra especially at paragraphs 21 and 47. I am entitled to rely on these circumstances when assessing the credibility of J.J. and weighing his evidence. The alleged threat by C.M. to get her pimp, her provocative actions in physically seeking to confine J.J. within the apartment, and the suggestion that Male #3 and Male #4 who I see on surveillance video are confederates of C.M. and/or K.F., are material to J.J.'s version of the incident. The other omissions I have pointed out are not significant in my view. I have considered the careful preparation of defence counsel to J.J. While I cannot find that J.J. simply made up this evidence in court on the stand, the failure to address the material aspects of his version of the events played a part in my rejection of his evidence. In the end, I rejected his evidence because of my assessment of all of the issues in this case - not merely the issue identified in Dexter.

Robbery: Liability of J.J. and J.M.

I have done my best to outline the basis of my decision and to ensure that it is in language and form accessible to the two defendants.

I accept the evidence of C.M. and K.F. that a robbery occurred. My finding that they were possibly not completely forthright about their sex trade worker activities generally does not diminish the evidence I accept from them about the robbery. The fact of the injury to C.M.'s eye corroborated by independence evidence at trial.

The defence theory that the two complainants colluded to fabricate this event has as one of its constituent logical elements that there was an injury to C.M.'s eye and that the complainants made up the allegations to focus the police on the event rather than their sex trade work activities and to ensure they were taken seriously.

In the end I did not find that C.M. and K.F. colluded in this manner.

In the review I have done of this trial record I have done my best to give J.J. and J.M. the benefit of the doubt. I know that they are "young persons" and I feel the weight of this decision.

But I have a responsibility to grapple honestly with the issues, apply the burden of proof, and render my decision.

It is possible that J.J. wished to have a sexual liaison to forget his girlfriend? It is possible. It is possible that a sex trade worker and a client engaged in a dispute about payment? Of course it is possible. The problem is on all the evidence at this trial I do not believe J.J.'s evidence in this regard.

I do not believe his evidence in key areas, nor have I been put in a state of doubt by it. Further I have outlined areas of his evidence that led me to disbelieve the account that he was providing.

I am satisfied beyond a reasonable doubt that J.J. assaulted C.M. and committed the criminal offence of robbery while armed with an offensive weapon, contrary to Section 343(d) of the Criminal Code of Canada.

J.M. did not testify in this trial as is his right. He adopted the version of events described by J.J. through his counsel. His counsel adopted the submissions provided by counsel for J.J. As to their respective roles (that is to say J.J. and J.M.) it is quite easy to distinguish between the two of them given their physical presentation. Further, identification was conceded, but a Court is always careful with identification issues and I listened carefully to the evidence of C.M. and K.F. concerning the participation of J.J. and J.M. I am comfortable with distinguishing between the two parties. There were two very distinct actors in this robbery. Only one party was apparently armed. And I note as well as I have had the opportunity to observe C.M., K.F. and the Defendants before the Court, I am not alerted to any of the dangers associated with cross-racial identification.

The evidence is clear that within mere moments of J.J. striking C.M., J.M. was confronting K.F. and seeking a computer, laptop and other valuables. From his physical position behind J.J., J.M. would have been aware of the action of J.J. He would have had to walk past C.M. on the ground enroute to accosting K.F. J.M. knowingly participated in the theft aspect of the robbery. It is clear that he possessed some peculiar knowledge about what to find in the apartment as he spontaneously initiated a request for the computer or laptop. There is no evidence that he was armed with an offensive weapon or that he physically touched or harmed either complainant. There is no evidence of J.M. uttering any threats to either complainant. I am satisfied beyond a reasonable doubt that J.M. is guilty as a joint principle in that both defendants were engaged in a joint criminal enterprise with each performing different roles.

I will briefly address the issue of proof regarding the firearm used during the robbery.

Firearm

A few findings are not controversial:

1. No firearm was recovered;

2. No firearm was discharged;

3. There is no forensic evidence probative of a real firearm; and,

4. The complainants did not observe the firearm being manipulated (i.e. the action engaged, loading, unloading, etcetera).

As I outlined above the Crown need not prove that a real firearm was used in a prosecution under Section 343(d).

I acknowledge that it is possible to prove that an actual firearm was used even if it was not discharged or recovered. However, when I consider the evidence as a whole, I agree with counsel for J.J. that the record in this case does not support such a finding. I am not satisfied that a real firearm was used in this case.

Even both complainants reasonably acknowledged that they could not be sure that J.J. used a real firearm as opposed to something resembling a firearm. If I have a doubt on the evidence it must be resolved it in the favour of the defendants.

Section 2 of the Criminal Code of Canada defines offensive weapon and weapon.

I am satisfied that an "offensive weapon" as defined in the Criminal Code of Canada was used.

I am satisfied that J.J. used an "offensive weapon" resembling a handgun. The description of the item provided by both complainants makes that clear. It is also clear that both complainants were significantly impacted by the use of this weapon in this case. C.M. was actually struck with the weapon and K.F. described her course of action for fear that the weapon could be discharged.

It is for all these reasons that I find J.J. and J.M. guilty of robbery, contrary to Section 343(d) of the Criminal Code of Canada.

Certificate of Transcript

Evidence Act, subsection 5(2)

I Tammy Irvine, certify that this document is a true and accurate transcript of the duplicate recording of R. v. J.J. and J.M. in the Ontario Court of Justice held at Oshawa, Ontario on October 29, 2015, taken from Recording No. 2811_103_20151029_090857_Y_3_FELIXMA, which has been certified in Form 1.

................. .................., Court Reporter (Date) (Authorized Person)

Legend (sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Tammy Irvine, and accordingly are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.