Court Information

Date: 2015-12-16

Ontario Court of Justice

Between: Her Majesty the Queen — and — Curtney Florent

Before: Justice Carol Brewer

Heard: October 29, 2015

Reasons for Judgment Released: December 16, 2015

Counsel:

• Imran Shaikh for the Crown
• Steven Safieh for the defendant, Curtney Florent

Judgment

Brewer J.:

Introduction

[1] Curtney Florent is charged with two counts of assaulting Taras Vovk with a weapon and one count of stealing marijuana from Mr. Vovk.

[2] Mr. Vovk and the defendant are both drug dealers. Prior to this incident they were friends. Mr. Florent described the complainant as his "go-to guy for cheap weed". These charges relate to a "drug rip-off" perpetrated by an individual, who was referred to as "Pimp" during the trial. It is alleged that Mr. Florent was a party to Pimp stealing marijuana from the complainant and using an unknown weapon to accomplish the theft. In addition, it is alleged that the defendant drove at Mr. Vovk with his motor vehicle in fleeing the scene of the theft.

[3] The key issue in the case is credibility.

The Evidence

The Crown's Case

[4] According to the complainant, he and the defendant first met in 2011 through a mutual friend. They used to live in the same neighbourhood, where they would hang out and do some business together. Mr. Vovk sold the defendant marijuana roughly every two to four weeks. The drug deals were arranged by phone call or text message. About 80 percent of the drug deals involved the defendant making purchases for someone other than himself. In general, the third party would not attend the sale, although sometimes that would occur.

[5] A week prior to this incident, Mr. Florent called the complainant and asked to buy some marijuana. Mr. Vovk and the defendant arranged for a purchase of 2 ounces of marijuana for a price of $500. Mr. Florent was brokering the deal on behalf of a friend, who was a pimp. The defendant said that Pimp wanted to buy bigger amounts if the marijuana was good.

[6] On February 12, 2015, the defendant kept text messaging Mr. Vovk about the deal. Ultimately it was arranged that they would meet at 2:30 p.m. in the parking lot of a YMCA. The defendant arrived in his car, with Pimp as a passenger. When the complainant approached the vehicle, Pimp exited the car and greeted Mr. Vovk. Pimp went to the trunk of the car and retrieved something, and then he got into the back seat. The complainant entered the front passenger seat and told Mr. Florent to drive out of the parking lot, as there were too many people around. Mr. Vovk directed the defendant to a nearby condo building, a short drive away. While en route, the complainant and Pimp chatted together in an effort to establish a business relationship.

[7] Upon arrival at the rear of the condo, Mr. Florent got out of the car and went to a nearby tree, purportedly to urinate. The complainant passed two vacuum-sealed bags of marijuana in a paper bag back to Pimp. The latter checked his pockets as if he was looking for money. Pimp then reached over the front seat and put an object to Mr. Vovk's neck. The complainant did not see the object, but it was cold and felt like a piece of metal. Pimp told Mr. Vovk to get out of the car. Upon exiting the vehicle, Pimp punched the complainant a couple of times in the face. Mr. Vovk was disoriented. He had bruising to his face and a cut on his nose.

[8] Mr. Florent ran back to the car, saying, "Let's go, leave him, let's go" to Pimp. The two men entered the vehicle. The defendant made a three-point turn in order to exit the area. Mr. Vovk ran up to the driver's side window and punched it several times, while cursing at Pimp and the defendant. Pimp opened the passenger door and sprayed pepper spray across the hood of the vehicle towards the complainant. Mr. Vovk ducked down and managed to avoid the spray. Pimp re-entered the car. The defendant drove his car at the complainant, who was blocking the way out. Mr. Vovk managed to jump out of the way of the car.

[9] Following this incident, the complainant wanted revenge and wanted to kill Mr. Florent. He felt he had been set up by the defendant. Mr. Vovk also believed that Mr. Florent had some of his friends watching the complainant's residence. Mr. Vovk called the defendant and threatened to come after him, wanting to fight Mr. Florent. The two men exchanged a series of text messages, during which each threatened the other. During the course of the messages, Mr. Florent stated:

You think I would rob u if I wasn't ready to die. Nigga I dear [sic - dare] u or any body even look at my direction. I dare u.

My Nigga was gonna pop your ass .. I told that nigga its just weed ..

[10] On March 23, 2015, the complainant drove by the defendant's house and confronted him. Mr. Vovk threw a construction hammer at the defendant. According to Mr. Vovk, the hammer barely missed the defendant. However, Mr. Florent described the hammer as striking his wrist.

The Defence Evidence

[11] The defendant said that he purchased marijuana from the complainant for his own use and for other customers. Mr. Florent said that when the purchase involved a large amount he would introduce the customer to Mr. Vovk, as he wanted only to be an intermediary when large amounts were involved. In these circumstances, the defendant would receive some money and some "weed" for the transaction.

[12] Mr. Florent met Pimp when he was smoking some marijuana in front of a hotel. The man approached him and asked if he could get some marijuana. Pimp showed the defendant some money. Mr. Florent obtained Pimp's phone number and said he would get back to him. Two weeks later, the defendant met with Mr. Vovk. The defendant then sent Pimp a text message listing various strains of marijuana and their prices. Mr. Florent arranged the purchase with the complainant two days before they were to meet.

[13] On February 12, 2015, the defendant drove to the YMCA in his car. Pimp came to the location in a black Nissan Maxima. He left the front passenger seat of that vehicle and got into the defendant's car. Mr. Florent called the complainant who met them at the car. Pimp got out of the car and entered the rear seat, so that Mr. Vovk could enter the front passenger seat. The complainant directed the defendant to a location down the street. According to Mr. Florent, Pimp did not access the trunk of his vehicle.

[14] The defendant described getting out of the car to urinate. After he returned to the vehicle, the complainant gave Mr. Florent some marijuana to smoke. He also gave a sample of the product to Pimp. While the defendant was "breaking up the weed", Pimp told the complainant to open the door and let him out for a second. Mr. Vovk moved the seat forward to allow Pimp to exit the vehicle. Pimp patted his pocket as if he was looking for something. The defendant did not see anything in Pimp's hands. Mr. Florent was occupied with his "weed" so he was not watching the two men, although he was listening. The complainant said, "What's up?" Pimp whispered something. Mr. Florent did not hear any threats. The defendant felt a shove against his car. He looked to the right and saw Pimp punching the complainant. At no time did he see any weapon.

[15] Mr. Florent moved his car, so it was facing outside the parking lot. Pimp entered the vehicle and said to "drive the fucking car". The defendant felt Mr. Vovk banging on the driver's side window. Mr. Florent did not see any pepper spray. He had no intention of hitting the complainant. The defendant drove to a stop sign, where he saw the Nissan Maxima pulling up. Pimp bailed out of the defendant's car and entered the Maxima. Mr. Florent continued driving away from the scene.

[16] Following the incident, the defendant found an empty bag in his car. He did not know what happened to the "weed". He never saw any money being exchanged between Mr. Vovk and Pimp.

[17] The same night, Mr. Florent received threatening phone calls from the complainant. The defendant just listened and texted Mr. Vovk back, as the complainant would not let Mr. Florent say anything. The threatening calls continued for a couple of weeks, culminating in the hammer incident on March 23, 2015. According to the defendant, he still likes the complainant and did not want him to go to jail for the hammer incident.

[18] Mr. Florent admitted lying to the police when they asked whether it was his phone number in the text messages with the complainant.

[19] In cross-examination, the defendant agreed that Pimp was a random stranger, but he did not have any concerns about driving him around to make the drug transaction. Mr. Florent also acknowledged that he had a relationship with the complainant. He conceded that he did nothing while Pimp was punching the complainant. The defendant said that he was confused about what was going on and was just watching because he was in shock. The defendant denied that he ever said, "let's go" to Pimp. According to Mr. Florent he did not really care what happened to the complainant as long as he got his cut. He acted for his own safety when driving off with Pimp, although he was never threatened. The defendant said he left the area because he was scared that his window would be broken.

[20] Mr. Florent accepted that his text messages were threatening but noted that he was also being threatened. The defendant maintained that he was trying to show that he was not "soft" and to intimidate the complainant. Mr. Florent agreed that the portion of his text message saying, "my nigger was going to pop your ass" referred to Pimp.

The Fundamental Principles

[21] Curtney Florent is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[22] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[23] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[24] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W., 63 C.C.C. (3d) 397.

Analysis

Credibility Generally

[25] Assessed in the context of the evidence as a whole, I do not believe Mr. Florent, nor does his evidence raise a reasonable doubt in my mind. My reasons for this conclusion include the following factors:

• the defendant's conduct, in driving off with Pimp, is inconsistent with his on-going business relationship and purported friendship with Mr. Vovk. If he truly did not want to associate himself with Pimp's actions, he could have fled the scene prior to Pimp entering his automobile;

• the defendant's own description of moving his car in order to leave, while Pimp was punching the complainant, suggest an action designed to assist the assailant rather than a true effort to leave, as he called out to Pimp and stopped the vehicle so that Pimp could enter it; and

• I find it surprising that, rather than protesting his innocence in the text messages to his friend and business contact, the defendant chose to exchange threats with Mr. Vovk that include significant admissions against his interest.

[26] I recognize that I must take care in evaluating the testimony of the complainant because of his animosity towards Mr. Florent. However, I am satisfied that Mr. Vovk's evidence is supported by the comments made in the defendant's own text messages, which show the defendant acting in concert with Pimp in the commission of the theft.

Party Liability

[27] In order to prove that Mr. Florent aided Pimp in committing the theft, the Crown must establish that:

• the defendant did something that assisted Pimp in committing this offence;

• the defendant knew that Pimp intended to commit the offence; and

• the defendant intended to help Pimp.

[28] In my view, Mr. Florent's conduct in moving his car and driving off with Pimp in order to escape the complainant had the effect of assisting him. The defendant's actions in calling to Pimp, "let's go, leave him, let's go" prior to leaving the scene and his admissions in the text messages support an inference that he knew of Pimp's plan to rob the complainant and he intended to assist Pimp in that endeavour.

Assault with a Weapon

[29] Section 2 of the Criminal Code defines a "weapon" as "any thing used, designed to be used or intended for use … for the purpose of threatening or intimidating any person". In this case a cold object, which the complainant believed to be made of metal, was placed against the complainant's neck and he was ordered to exit the car. Although Mr. Vovk did not see the object, its use appears to me to fall within the definition of a thing used for the purpose of intimidating Mr. Vovk. The fact that the object was not produced in the subsequent fight does not detract from its use to intimidate the complainant into leaving the car.

[30] However, I do not believe that the Crown has established knowledge on the part of the defendant of the presence of the object or its use by Pimp. This is particularly the case as no object was used in the subsequent fight between Pimp and the complainant. On that basis, I am not satisfied that the charge has been proven beyond a reasonable doubt.

Assault with the Car

[31] In order to constitute an assault there must be an intention to apply force to another person. The complainant conceded that he was deliberately blocking the way of Mr. Florent's car in order to try to break the glass of the driver's window. There was no other route for the car to travel because of where the curb was located. Mr. Vovk said that the car would have rolled over his foot, if he had not moved away from the vehicle.

[32] I believe that the defendant's only intention was to move away from Mr. Vovk and to escape from his efforts to damage the car. In all of the circumstances, I am not satisfied that the Crown has proven the intention to apply force to the complainant beyond a reasonable doubt.

Conclusion

[33] A finding of guilt is entered on the theft charge. On the two counts of assault with a weapon, the defendant is found not guilty.

Released: December 16, 2015

Signed: Justice Carol Brewer