Court File and Parties
Date: 2016-11-28
Court File No.: Toronto Region
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tevyn Rodney & Justin Mohammed
Before: Justice L. Feldman
Heard on: June 13, 22, 23, 24, July 12, September 6, 20, 2016
Reasons for Judgment released on: November 28, 2016
Counsel:
- T. Edwards for the Crown
- U. Cara for the accused Tevyn Rodney
- J. Louch for the accused Justin Mohammed
FELDMAN J.:
Introduction
[1] Tevyn Rodney and Justin Mohammed entered not guilty pleas to charges of Discharge Firearm and Mischief under $500.00. It is alleged that both accused were parties to the firing of a rifle into a home at 43 Cataraqui Cres. in Toronto, narrowly missing an occupant. The Crown says Mr. Mohammed was the shooter, while it was Mr. Rodney who drove him to the scene in his mother's car. There is direct and circumstantial evidence of the identification of both accused. The Crown concedes that this evidence, standing alone, does not meet the requisite standard of proof. He relies on the testimony of a jailhouse informant to enhance the identification of the assailants.
[2] In support of its case, the Crown called two residents of 43 Cataraqui Cres., a civilian witness, who says that while on his balcony he was able to observe the suspects drive into the parking lot behind his apartment building, the building manager, an individual in charge of security at this building, four police officers and a jailhouse informant.
[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.
The Evidence
[4] On October 7, 2014, Ashauntay McLean, then age 12, was asleep in her bedroom at 43 Cataraqui Cres. Her mother, Cherrice Green, was in the basement with a male friend. At 1:23 a.m., they heard shots being fired into their home. Police later found four bullet markings around the front door, two on the left side, one through the door and one above it. Chillingly, one bullet was found in a lamp shade beside a couch where Ms. Green's son, Shethar, was sleeping. A police officer from Forensic Identification Services found four shell casings outside the house. The next day, a Toronto Community Housing officer found a fifth bullet fragment nearby.
[5] Shane Staniek, an expert in firearms and tool marking, employed by the Centre of Forensic Sciences, testified that these 5 cartridge cases were of 30 calibre and shot from the same automatic or semi-automatic firearm. A jailhouse informant testified that while sharing a jail cell with both accused, he heard reference to an SKS Scorpion rifle. Mr. Staniek indicated that but for the fifth projectile, this type of firearm was capable of firing the bullets used here.
[6] Ashauntay told the court that the gun shots woke her up. She felt disoriented at first. She looked out the window from her bed and saw someone she believed to be a man standing about 5 feet away on the footpath in front of the main door. He was pointing what appeared to her to be a gun at the house. She could not see his face but described him as 18-25 years old, wearing dark clothes, a black or grey hoodie and black Air Force running shoes with a swoosh.
[7] Ashauntay heard 2 shots. She said the assailant then ran to a car at the side of the street. The vehicle drove to Warden Ave. in a matter of seconds but she did not know whether it turned north or south. She was present when her mother called 911. She recalls her mother asking her questions while she was on the phone with police but cannot recall what they were.
[8] After hearing the 911 tape in court, she agrees she initially said the car went up Fir Valley, while it was her brother who thought the car went towards the school and then down Warden Ave. The witness also agrees that her mother was with her at the police station when she gave her statement and essentially took over to the degree of explaining to the police what her daughter meant. Ashauntay maintains that she recalls the car heading towards Warden Ave.
[9] Cherrice Green was dozing in the basement when she heard 2 shots. She ran up to the second floor bathroom to look outside. She said she saw a dark car going south on Warden from Cataraqui. She described bullet holes referred to earlier. She called 911. She agrees that during that call she asked her children what they saw, but says she did so in order to be sure of what she had seen.
[10] Police arrived within one-half hour. Ms. Green said she provided little detail and kept her comments short given the trauma of the moment and her worry that her family would be at risk in the neighbourhood were it known she was cooperating the police. Her reluctance continued in the months ahead. On Nov. 5, she refused a police request to provide a video statement. On June 24, 2015, she failed to attend a meeting at a school arranged by P.C. Geoff Brayman. She was supposed to speak with him on August 30, but did not do so. On September 3, the officer showed up at her house, but she refused to meet with him, she says, out of concern for her children's safety.
[11] On Dec. 1, Ms. Green, although reluctant, was persuaded by the officer to bring her daughter to the police station the next day, where they both provided video statements. He told her that the police were working for her family's safety. She says she was still reluctant given her concerns and provided little detail. She was present when Ashauntay gave her statement and agrees she spoke for her at times. This is unsatisfactory and bears upon the independence of her daughter's evidence.
[12] Ms. Green learned early on that both accused had been arrested when P.C. Brayman attended her home on Nov. 5 for the first time. He subsequently told her in February about their releases and provided her with a copy of Justin's bail papers. It may be that he felt she should have this information. It is more likely he was using the opportunity to encourage her to cooperate with the police.
[13] Ms. Green knew both accused from the neighborhood, Justin as J.J. and Tevyn as B.P. Tevyn had been in her house. At one point she saw both accused on U-Tube and from what she observed felt they had no remorse. She said she then made a decision to cooperate with the authorities. She met with the Crown on June 10, 2016 and provided a statement.
[14] Ms. Green let the police know she wished to move from the neighborhood and wanted their help. In fact, P.C. Brayman wrote in his notes that he believed Ms. Green would not cooperate unless the police helped her move. The officer at one point brought her floor plans for a residence to which she was hoping to move and, as well, wrote a letter on her behalf to the Toronto Housing Authority in support of her application.
[15] While I understand the officer's challenges in getting this material witness to testify, his failure to disclose his efforts to help this witness and encourage her, along with her daughter, to participate as witnesses raises questions about his judgment and understanding of his obligation to disclose. In fact, he did not let the officer-in-charge know about the earlier meetings he attempted to arrange with this witness.
[16] Ms. Green says that while she requested police support for her application, it failed to make a difference. P.C. Brayman wrote a letter to Toronto Community Housing and made a phone call supporting her request to move given her circumstances. Her application was not granted. She remains in her house.
[17] Timothy Parisian, age 56, is an independent witness, who was also reluctant to testify. In the early morning hours of Oct. 7, he heard a number of gun shots. He went out to his 10th floor balcony at 30 Burnhill Rd. He said he saw a dark vehicle speed along Cataraqui, turn south on Warden Ave. towards him and while his view became briefly blocked by trees, he heard the car enter the parking lot to his building, as he had experienced with other cars in the past, and park in spot 17. He indicated that where trees briefly blocked his view he maintained sight of the vehicle by its headlights. There were no other cars on the road. He saw two people get out but could not make out their faces. One was taller, one had his arm tucked in against his body as if holding something and both were young and wearing caps. They headed into the building at 50 Burnhill, where Mr. Rodney happened to live with his mother and step-father in apartment 607. An officer found the car, belonging to Mr. Rodney's mother, in spot 17.
[18] Mr. Parisian said that when he gave a statement on Oct. 7th he did not understand he would have to attend court. He told the police he did not want to be involved. When an officer came to his apartment on April 25, 2015, he refused to provide a further statement, concerned that others would come after him for being a snitch. He was upset to receive a subpoena to attend court the following December. His reluctance was apparent during his testimony.
[19] Susan Fitzgerald was the building manager at 50 Burnhill Rd at the time of these events. She provided a surveillance video that showed Ms. Rodney's car pulling into visitor spot 17 at 1:19 a.m. This would be prior to the shooting. She believes the times on the video were accurate.
[20] John Cowan has been in charge of security for both Burnhill buildings for 10 years. He told the court that at the time the surveillance video was 7-12 minutes fast or slow, a problem now rectified. Given his professional responsibilities I accept that he was aware of this technical problem.
[21] The video showed two men enter into the inner lobby and then the hallway leading to a stairwell. They had hooded jackets and hid their faces. Mr. Cowan identified Mr. Mohammed as someone he recognized from past dealings. He said he has spoken to him on the property 5 or 6 times and seen him on other occasions. He knows him to live in apartment 301 or 302 at 30 Burnhill Rd. He describes him as thin, with a goatee and ponytail.
[22] On the Oct. 7 video, he says that although the accused's face was only visible for a very short time and that he was able to see a profile of his nose and the right side of his face for a mere 2-3 seconds, he believed it to be that of Mr. Mohammed. I was satisfied in these circumstances that given his prior connection with the accused it was appropriate in these circumstances to weigh this recognition evidence: R. v. Berhe, [2012] O.J. No. 5029, at para. 13.
[23] Given Mr. Cowan's explanation of the time gap, which I accept in light of his security responsibilities, the arrival of the car fits within the approximate time frame set out by the civilian witnesses. His identification of Mr. Mohammed was expressed with certainty. However, the brief opportunity to observe and the scant detail offered by him would leave his opinion, standing alone, as probable at best.
[24] I would hold to the same view of the recognition by P.C. Brayman of Mr. Mohammed. He had conducted bail compliance checks on him. He said he has been with the accused several times, attended his residence and shown his photo many times. He recalls the defendant to have thin facial hair with corn-rows or hair tied back on his head.
[25] P.C. Brayman believes the young man he viewed in the surveillance video to be Mr. Mohammed. He pointed to his young-looking face, lighter-hued black skin, dark eyes and some facial hair. He agrees he was only able to see his chin, forehead and one cheek for about 3 seconds. The fact this was at 30 Burnhill Rd. was a circumstantial factor for him in his identification of the accused. However, even taken together with the recognition evidence of Mr. Cowan, the officer's identification, as conceded by the Crown, would not meet the requisite standard of proof, given the frailties of eyewitness identification: R. v. Gough, 2013 ONCA 137.
[26] The testimony of the jailhouse informant has the potential to buttress the identification evidence of the shooter and his driver. In combination, other evidence permits the probable inference that it was the two accused who left the scene of the shooting and returned within minutes to the parking lot of the apartment complex where they both lived. Although Ms. Green and her daughter were unable to directly identify the young men who shot at their home, Ashauntay, straightforward, cautious and mature in testifying, described elements of identification involving age and dress that were incomplete, but not inconsistent with the recognition evidence of Mr. Cowan and P.C. Brayman.
[27] As well, Ashauntay's evidence about the timing and direction of the grey or dark car leaving the scene and heading towards parking spot 17 lines up in a material way with that of Mr. Parisian. His reluctance enhanced his objectivity. Of significance, descriptions of the car, the timing of its return to parking spot 17, its admitted ownership, including Rodney's access to it, and the weak recognition evidence together permit the circumstantial inference on a probability basis that it was driven at the time in the early morning hours by Mr. Rodney, accompanied by the shooter who was seen to return to the back seat of the car from which he emerged at the Burnhill complex within minutes of the shooting.
[28] Nonetheless, this evidence, standing alone, is insufficient to meet the rigorous standard of proof required when identification evidence is at issue. Here, what will be determinative in this respect is whether there are elements of Joseph Mariano's testimony that, despite his "unsavoury" character, I accept and are capable of enhancing his trustworthiness to the degree that in combination with other direct and circumstantial evidence of identification, satisfy the prosecution's burden of proof in this regard: R. v. Kehla, 2009 SCC 4, at p. 11.
[29] It is apparent on this evidence that Mr. Mariano is a classic "unsavoury" jailhouse informant whose testimony requires special scrutiny: Kehla, at p. 6. He has a lengthy criminal record that involves offences of dishonesty. He is a drug addict. He is a liar.
[30] In numerous sentencing proceedings, his submissions, or those made on his behalf by instructed counsel, could only charitably be described as misleading. Over the course of several years and numerous court appearances, he said or stood behind variable and false statements, including that he was aboriginal, his mother a Cree Indian, that he suffered from PTST, that he had jobs waiting for him, that he was innocent of assaulting his girlfriend despite his guilty plea and admissions to the contrary, and that at times he didn't hear the inaccurate submissions of counsel. As well, he provided various inconsistent reasons for losing his job at Sony and asserted his home was foreclosed. None of this was true.
[31] It is not difficult to conclude that Mr. Mariano is unworthy of credit. In weighing his testimony, therefore, I must proceed cautiously, looking for evidence from another source tending to show that this otherwise untrustworthy witness is telling the truth. Of importance, individual items of confirmatory evidence need not implicate the accused, but rather serve to "accredit" the informant: Kehla, at p. 10.
[32] It is conceded that Mr. Mariano spent at least a week in latter 2014 locked in a cell at the Toronto East Detention Centre with both defendants following their arrest on these charges. He testified that they, mostly Mr. Mohammed, made inculpatory utterances that he wrote down hoping to use their admissions to his advantage. His lawyer disabused him of that idea. Following his release, he left his notes in a bag, later discovered by police. He was subpoenaed to testify about their contents. He was offered nothing in exchange.
[33] Mr. Mariano was an unimpressive witness, disinterested and surly. In one sense, he was straightforward in admitting he read about the allegations in the media, watched CP-24 and after his release checked out the Toronto Police Service website about this case. It is suggested this diminishes the objective value of the notes and his testimony.
[34] Mr. Mariano told the court that the accused were speaking mostly between themselves. From his notes, he recalls them discussing how Justin fired shots into the door of an innocent person's home in the Cataraqui area where they both lived. Mr. Rodney, or B.P., drove the car, while Mr. Mohammed did the shooting. Mr. Mohamed, or J.J, said he did this in response to being disrespected by a drug dealer who was a relative of the victims. He was sending a message.
[35] The informant also wrote down that Mr. Mohammed described the firearm used as an SKS Skorpion rifle and said that he came out of the car and fired the 8-9 bullets contained in the clip. A forensic expert testified that this was an aftermarket rifle of a kind that could have fired the bullets used here. There was no mention in the media of the type of rifle that fired the shots.
[36] Mr. Mariano recalls J.J. saying how cool he must have looked plugging the door with bullets. He wrote that Justin Mohammed was concerned about leaving a shoe print in soft patches of the ground near the house. There was evidence that it had been raining earlier on the evening before the shooting in the early morning hours.
[37] After the shooting, Justin got into the back seat of the car. Mr. Rodney drove back home. Mr. Mariano asked how they got caught. He was told that someone had seen them from a balcony. He recalls Tevyn saying he ought to have pulled up to the front of the Burnhill building rather than park in the back where he knew there was video surveillance. This is true and would be uniquely understood by Mr. Rodney. It would not ordinarily be known to the informant.
[38] Mr. Mariano recalls Justin saying that he gave the rifle to a friend before he turned himself in to the authorities just after his birthday. The timing is accurate and of a private nature.
[39] He said both defendants told him that the police searched their respective mothers' apartments. This was true and unlikely taken from media reports or internet searches.
[40] As noted, a material part of this information would not be available to the public but is accurate. It tends to enhance the objective reliability of the informant's recounting of the utterances for which he received no benefit. On this evidence, I am not left in reasonable doubt that the inculpatory statements were made. This, in turn buttresses the otherwise insufficient identification evidence and satisfies me to the requisite standard that the two defendants were involved in the shooting.
[41] There will be findings of guilt.
Released: November 28, 2016
Signed: "Justice L. Feldman"