WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Date: January 10, 2017

Court File No.: Newmarket Y140712

Parties

Between:

Her Majesty the Queen

— AND —

J.T.

Before: Justice Joseph F. Kenkel

Heard on: October 31, November 3, 4, 8, 2016

Judgment delivered: January 10, 2017

Counsel

Ms. Mary Lou Armour — counsel for the Crown

Mr. Steve Fortini — counsel for the accused Young Person J.T.

KENKEL J.:

Introduction

[1] A.J. went to a semi-formal high school party with friends. In the washroom his group made joking comments about two others who were there. There was an altercation and A.J. was stabbed. The accused was charged with:

• Attempted Murder s.239
• Assault with a Weapon s.267(a)
• Obstruct Justice s.129(a)
• Personation s.403
• Possession of a Weapon for a Dangerous Purpose s.88(2)
• Two counts of failing to comply with a youth sentence contrary to s.137 of the Youth Criminal Justice Act

[2] The Crown concedes that the evidence does not prove Attempted Murder beyond a reasonable doubt. Final submissions identified two central questions for decision:

• IDENTIFICATION - Has the Crown proved the identity of the assailant beyond a reasonable doubt?
• INCLUDED OFFENCE – If the Crown proves the identity of the assailant, is Aggravated Assault an included offence on the wording of this Attempt Murder count?

[3] The Crown called 6 witnesses:

• A.J. – The victim of the stabbing
• K.C. – A.J.'s friend
• T.M. – A.J.'s friend
• J.K. – A.J.'s friend
• Neena Jaswall – Event staff
• Sonia Sallan – Security staff

[4] The accused J.T. gave evidence for the defence.

The Evidence

[5] A.J. was 16 at the time of the incident. He went with friends to a semi-formal dance which had been organized by students but was not a school function.

[6] A.J. drank a quarter of a 1.14 litre bottle of rum and smoked marijuana before going inside the banquet hall. He was with his friends T.M. and J.K. and they were drinking too. A.J. went with his friends to the washroom. He testified that he and his friends T.M. and J.K. started joking and laughing because two boys in the washroom exited from one stall. The boys exiting the stall took offence and there was a confrontation. A.J. identified the accused J.T. as one of the two exiting the stall who engaged in pushing with him. A.J. put J.T. into a headlock then he tightened the grip on J.T.'s head. J.T. broke free and A.J. noticed that he'd been stabbed. He testified that he wasn't certain it was J.T. who stabbed him. A.J. was in hospital afterwards for two weeks with serious injuries requiring surgery. A.J. was not friends with J.T. but knew of him prior to the event as they were in the same social circle.

[7] In cross-examination A.J. did not recall speaking to the trauma nurse at the hospital during medical treatment but agreed with the assertion that he did not see the stabbing. He agreed he discussed the incident with others afterwards and he agreed that his second statement to police may have contained some information learned from others. He agreed that in his initial statement to police just after his surgery he did not mention laughing at the other men and seemed to say the incident was random without provocation. He'd seen the accused J.T. in the past and told the police his first name but he was not friends with him.

[8] The complainant A.J. agreed in cross-examination that the night he was stabbed he was not cooperative with the police. He "didn't want anything to do with the police". He didn't recall telling the police at the hospital that he didn't know the assailant's name and had never seen him before, but he didn't deny making that statement. In cross-examination A.J. agreed that during the struggle he was not aware of where others were. In his statement to police he said he thought they left during the altercation. He confirmed again that J.T. was the person he struggled with, but he repeated that he was unsure that the accused was the person who stabbed him. Things happened quickly and he wasn't aware of the stabbing when it occurred.

[9] K.C. went to the same function but with another friend. He also was drinking prior to the event but didn't recall the details. He was in the lobby when he heard loud voices and yelling in the washroom. He went into the washroom and saw A.J., J.K. and the accused J.T. J.T. was holding a knife. K.C. reacted by grabbing the knife from J.T. He cut his hand in the process. Another boy J.K. was holding J.T.'s wrist. Security personnel from the banquet hall came in and took the knife from him. K.C.'s hand was cut when he grabbed the knife from J.T. K.C. said he pointed out J.T. to the police as being the person with the knife. K.C. said that J.T. "looked intoxicated" and was aggressive during the incident. K.C. went to the same school as A.J. and knew of him but K.C. is a year older. He was not friends with A.J.

[10] In cross-examination he testified that he did not discuss the incident with the complainant or his friends. He confirmed that when he entered the washroom the complainant A.J. was there as was his friend J.K. The accused J.T. was there. He didn't mention J.K. being there in his statement to police as he didn't know that mattered. K.C. confirmed in cross-examination that J.K. was the person who grabbed J.T.'s wrist as J.T. held the knife. K.C. blamed his drinking as the reason he failed to give the police J.K.'s name. In response to further questions on this point he testified that his focus was on the knife and not the other person who intervened. He concluded that he doesn't now really remember that other person. K.C. agreed he came into the washroom after the stabbing. The defence suggested that he yelled at J.T., "What did you do?" but K.C. did not now recall doing that.

[11] T.M. went to the event with the complainant A.J. and their friend J.K. He shared what he thought was a 750ml bottle of rum with the other two and ¼ of that bottle was left over. He was "feeling good" but not drunk. Nothing happened when they first arrived but later he and A.J. were in the washroom. J.K. arrived in the washroom two minutes later. There were four stalls and they noticed that one stall had two people in it. They were talking about that when the two emerged and there was a confrontation. There was pushing and T.M. said that A.J. put both of the two boys who emerged from the stall into a headlock. There was a struggle and then security came in.

[12] In cross-examination T.M. agreed that he didn't see anyone with a knife and didn't see who stabbed A.J. He did not see K.C. struggle for the knife and didn't recall him being in the washroom. T.M. confirmed in cross-examination that he knows the first person emerging from the stall who confronted A.J. was the accused J.T. He could not identify the second person. T.M. said that A.J.'s back was towards him or against him in the sink area at the time of the altercation. T.M. said he didn't see a knife or see the stabbing. He agreed in his original statement to the police he told them A.J. put only J.T. in a headlock and the second person was trying to get out of the washroom. He explained that he doesn't now accurately remember the central part of the incident.

[13] J.K. was with the complainant A.J. and T.M. at the event. He had one or two shots of rum with the other two prior to going inside and also shared a bit of marijuana an hour or two before that. Inside the event J.K. and the other two ended up in the washroom. They saw two boys coming out of one stall and he remembers they joked about that. J.K. identified J.T. as the first person coming out of the stall. He said J.T. confronted A.J. and asked him what he was laughing at. He saw J.T. attack A.J., pushing him. He noted that J.T. was much smaller than A.J. A.J. tried to dodge him but then put J.T. in a headlock under his right arm. J.K. saw J.T. with a knife in his hand. J.K. intervened and ended up grabbing J.T.'s wrist. J.T. let go of the knife and security entered the washroom.

[14] J.K. admitted that he lied to the police in his initial statement as he was 16 and didn't want his parents to find out he'd been involved in the altercation. His parents were already "freaked out" and he'd told his father a different story to minimize his involvement. He told the police he didn't see the knife and didn't intervene in the altercation but that wasn't true. He's 18 now not 16 and he said he understood the importance of telling the truth at the trial and was telling the truth. He specifically asked his father to stay outside the courtroom during his testimony so that he could give a candid account. He agreed that the second person coming out of the stall was not involved in the fight and that A.J. did not put two persons in a headlock. J.K. said that he recognized the accused's face but agreed that he learned the name from others.

[15] Sonia Sallan was working at the event as security staff. She went into the washroom in the moments after the stabbing. She was told there was an incident in the men's washroom and she ran directly in. Her co-worker Neena Jaswall entered just behind her. She told two men to leave and one of them she identified as the witness who had just testified (J.K.). Ms. Sallan tended to A.J. who was injured with two wounds to the side of his abdomen and further cuts on his leg or thigh close to the buttocks. She didn't see a knife until her co-worker had it. In cross-examination she disagreed with the suggestion that she didn't see J.K. in the washroom. Her diagram put the two non-injured men including J.K. inside the washroom when she first saw them.

[16] Neena Jaswall was the second event staff member to enter the washroom. As she entered she saw a person with a red shirt walk by her and into the banquet hall. Inside the washroom she found a person with a knife in his hand who said, "I stopped him from getting stabbed". The blade of the knife was towards his hand and he was cut. There was another person in the washroom who had a turban. She took the knife from the person with the cut hand (K.C.) and got something for him to wrap his hand with. The security person Sonia assisted a third person who was bleeding. Ms. Jaswall saw the person with the cut hand help point out a person to the police who was then arrested. She recognized the person with the cut hand when she attended court on another day and saw him waiting to testify. In cross-examination she said she could not confirm where the person who walked out went.

[17] The defence and Crown agreed that a police officer seized the accused's shirt that night and noted that the accused J.T. also had cuts on his hand. There was a significant cut on the top of his thumb on the right hand, minor cuts to his index finger and the finger next to the index finger on his left hand.

[18] J.T. was also 16 at the time but he went to a different high school than the other witnesses. He was not friends with the Crown's witnesses. He went to the event with his friend S.P. They drank Crown Royal whisky before going inside. J.T. had 5-7 shots of whisky, then after he and his friend drank a "mickey" (typically 375ml) of Bombay gin in the washroom. He was still able to walk but was "wavy" and drunk. He couldn't remember if they finished the gin and he couldn't remember how much he had.

[19] J.T. walked out of the stall with his friend and recalled seeing a person with a knife in his hand. He saw a lot of people in front of him and they were all walking out of the washroom. He didn't know how many people were there. His friend S.P. was with him but he doesn't know where S.P. went. J.T. doesn't know if others remained in the washroom after he left.

[20] J.T. testified that after seeing the person with the knife but before he left the washroom, he tried to grab the knife out of the person's hand. Then someone else tried to grab it. He didn't know someone had been stabbed. He didn't see any altercation. He didn't see anyone in a headlock. There was no apparent reason why the knife was out. He doesn't now know why he tried to grab the knife. He doesn't now remember whether he got the knife from the person. He now thinks he used one hand then both to try and get the knife. He doesn't know if the other person let go of the knife at any point. He doesn't know if the other person who intervened got the knife. He doesn't know where the person who first had the knife went as he wasn't paying attention to him. He was unable to say where exactly the altercation happened as it all happened so fast. J.T. said he left the washroom after he saw blood on his hands.

[21] J.T. said he didn't know which table he sat at and he didn't know how long he sat there before police spoke with him. He doesn't now remember his arrest other than that he was handcuffed. He was taken outside but doesn't remember whether he was taken to a police car or a larger Jeep. He doesn't know if he was searched or if any items were found during a search. J.T. agreed that the police took false identification from him at some point. He didn't remember if he had a wallet or whether the identification was just in a pocket. He explained he had the false identification to use to buy alcohol. When asked how he felt about his arrest he said, "I don't know I can't remember …". He didn't remember what if anything was said to him by the officer. J.T.'s lawyer suggested to him that he told the police that he didn't do it and J.T. agreed with that suggestion, "Yeah I didn't do anything".

[22] In cross-examination J.T. said he did not recall the police officer asking him for his name. He agreed that being arrested by the police was a significant event but he said he didn't remember anything about it because he was "drunk". The false identification was a real driver's license but it was not his, it belonged to an older friend. He agreed that he doesn't now remember making the statement suggested by his lawyer that he didn't do anything. He does remember that he "led on" the officer by telling him that he lived at the address on the license.

[23] When questioned in cross-examination about how he says he grabbed the knife he replied, "I don't know exactly" and later on the same point, "it's hard for me to remember". He agreed his motions that he had shown earlier were guesses. He was unable to describe the features of the washroom or the layout without guessing. He remembers there were others in the washroom which is why he and his friend went into one stall to drink, but he can't recall now if he heard them talking.

[24] When questioned about what happened when he exited the stall J.T. said, "I don't know, I can't recall, I don't remember". The washroom diagrams of the other witnesses did not refresh his memory and he said he "wouldn't be able to say" if they're accurate. J.T. did recall that he exited the stall first. He agreed he walked straight towards the door and the 3-5 people were ahead of him in that direction but still in the washroom and not the hall leading to the event. J.T. didn't recall whether he saw the backs or the side of the 3-5 others leaving. He didn't say anything to anyone as he had no reason to. When asked whether the person with the knife was walking towards the door as part of that group J.T. said he wasn't walking towards that door. When pressed he said, "I don't remember that's my answer". He couldn't say why he decided to try to take the knife away other than a vague notion that something might happen. When asked why he didn't just tell the person to put the knife down he replied, "I don't know what to say to that". When pressed further he said he was very drunk and doesn't now remember what happened in the washroom. He didn't recall if there were any loud or angry voices. He was unable to answer questions about further incident details beyond those few facts he described. He was able to say that he recognized the Crown witnesses as persons who were there at the time but none of them were the person who initially held the knife.

[25] Medical records were marked as Exhibit 5 on consent. The CFS report for items submitted was marked at Exhibit 6.

Analysis

[26] Determining the credibility of the witnesses is the most important issue in answering the first question – whether the Crown has proved the identity of the assailant beyond a reasonable doubt? I've assessed the evidence as a whole and make the findings of fact that follow in that context. The case of R v. W.D. applies.

[27] The defence admitted that the Crown could have called evidence to prove beyond a reasonable doubt that the accused obstructed a peace officer and personated another person as alleged in counts 3 and 4 and that no defence related to intoxication or mens rea would apply. Documentary evidence of the Youth Sentence referred to in counts 6 and 7 was admitted on consent. Proof of counts 1, 2, 5, 6, 7 otherwise rests on an assessment of whether the Crown has proved beyond a reasonable doubt that the accused was the assailant.

[28] J.T. was not a credible witness. I accept his testimony that he was in the stall with another person, that he emerged first and that he was directly involved in a struggle with the knife. All of that evidence is consistent with the credible testimony of other witnesses and consistent with the circumstantial evidence. The remainder of his evidence including his account of his involvement in the struggle was illogical and plainly unreliable. He was evasive during questioning in both examination-in-chief and in cross-examination. His claimed certainty on a few points related to his involvement in the altercation was surrounded by his claim of a complete lack of memory about most other surrounding details. His account of his involvement including the explanation for his wounds didn't make sense and was contradicted by external credible evidence. He drank quite a bit more than the other witnesses and was plainly more intoxicated. I did not find J.T. to be a truthful witness on the central points, but even if that finding is mistaken and his repeated lack of memory is simply due to intoxication I could place no weight on those portions of the events he claims to remember that were not confirmed by other credible evidence.

[29] The complainant A.J. was plainly a reluctant Crown witness. He admitted that he didn't want the police involved despite the very serious nature of his injuries. His initial statement to police immediately after medical treatment left out a number of details. He initially told police he didn't know who had struggled with him but later admitted that he knew the person. He didn't want "anything to do with the police" when he was first interviewed.

[30] He was drinking that evening and consumed marijuana but not to the point of intoxication. A.J.'s account of the incident is logical – that he and his friends made fun of two guys emerging from one stall. The first guy out confronted him and they struggled. His evidence regarding the confrontation and altercation is consistent with the evidence of the witness K.C. who was outside the washroom and ran inside after hearing loud voices and yelling. A.J. is a big person and was able to put the other man in a headlock. He tightened his grip around that person's head during the struggle. He didn't see the knife and didn't know he was stabbed, but as the Crown points out his injuries to his side and back buttocks/thigh are consistent with the areas of the body that could be reached by someone in a headlock. The second person emerging from the stall was not involved in the fight and the credible evidence at trial including the testimony of Neena Jaswall shows there was only one person other than the complainant and the two witnesses who emerged from the washroom immediately after the stabbing. That person was wearing a red shirt and the evidence as a whole shows that person had been involved in the struggle with A.J. The altercation was brief and was over in seconds. A.J.'s overall account progressed in a logical fashion, showed a reason for the altercation and showed why the smaller person put in a headlock that was tightened might have resorted to stabbing to break free.

[31] A.J. initially told police that there weren't other people in the washroom at the time he was stabbed but his evidence overall shows that his friends J.K. and T.M. were there with him at the outset. He was a reluctant witness and may not have wanted to involve his friends. Given his focus on the altercation and the fact that he received multiple serious stab wounds it's also possible that he simply didn't know where his friends were during the altercation. It's reasonable that he didn't see himself being stabbed given that the wounds were inflicted to his side and back while he had a person in a headlock. A.J.'s stated uncertainty as to whether the accused J.T. stabbed him was consistent with his presentation as a reluctant witness but also consistent with the fact that he didn't see the knife or feel the wounds. However, his evidence describes a circumstance that explains the use of the knife. A.J.'s evidence does not identify any other person who could possibly have inflicted the injuries.

[32] With respect to A.J.'s identification of J.T. as the person who stabbed him, that evidence must be approached with great caution. See: R v. Pelletier, 2012 ONCA 566, at paras. 89-95. There's no evidence that his dock identification was tested by a photo lineup or any other independent procedure. There is evidence that there was some communication with others after the incident as teen texts and social media attributed a name to the person arrested. His position relative to the person in the headlock shows he would not likely be aware of what that person was wearing and the evidence shows his later statement that the assailant had worn a red shirt was likely derived from contact with others. There's evidence that A.J. knew the accused J.T. to a degree but there are no details of their prior contact. I place very little weight on A.J.'s identification of J.T. and assign it a non-zero weight only because there is some evidence of past knowledge of J.T., and more importantly A.J.'s testimony on this point is supported by other credible direct and circumstantial evidence.

[33] While I approach his evidence with caution given his reluctance as a witness and some important differences in his initial statement to the police, I find A.J.'s evidence is generally logical and consistent with other credible external evidence. Differences in his evidence, particularly with regard to the first statement taken early at the hospital are reasonably explained by his medical condition at the time and his plain antipathy towards police involvement. Considering A.J.'s evidence in the context of all of the evidence I find his testimony on the central points was generally credible and reliable.

[34] K.C. was also drinking that evening prior to the event. He's a year older than A.J. and A.J.'s friends. He went to the event with another person and was not with A.J.'s group. K.C. went into the washroom when he heard loud voices and yelling. His testimony that he grabbed the knife is consistent with the injury he received and consistent with the credible testimony of J.K. He said another person held the wrist of the person with the knife which is also consistent with J.K.'s evidence. It's understandable that he was unable to confirm whether or not the other person was J.K. as he was focused on the knife at the time.

[35] K.C.'s dock identification of J.T. as the person he took the knife from was not supported by evidence of past association or independent photo identification. However, K.C.'s evidence that he identified J.T. to the police shortly afterwards as the person he took the knife is supported by the evidence of Neena Jaswall and by the admitted fact of J.T.'s arrest at that time. It's also consistent with Ms. Jaswell's evidence that a person with a red shirt left the washroom as she entered and K.C.'s evidence that J.T. had been wearing a red shirt and dress clothes that evening. His identification at the time was made when the events were fresh in his mind and the evidence shows he singled out the accused out of a crowd of many persons of similar description wearing similar dress including red shirts as shown in the cross-examination of other witnesses. That past identification as repeated at trial is consistent with the accused's admission that he was present in the washroom and was the first person out of the stall. It's also consistent with the circumstances of the altercation set out by A.J. and J.K.

[36] K.C.'s evidence was consistent with his injury, consistent with the credible evidence of other witnesses including Neena Jaswall. I find his evidence is credible and reliable in that context.

[37] T.M. was with A.J. that evening and also was drinking. He confirmed A.J.'s evidence that they went into the washroom, saw two males in the same stall. An altercation followed when the males left the stall. T.M. said the first person to emerge was pushing and shoving and then was put into a headlock by A.J. That's consistent with the evidence of A.J. and J.K. He recalled a second person was also put into a headlock but T.M.'s evidence on this point didn't make sense and was contradicted by the credible evidence of his other two friends. The suggestion that the second person out of the shared stall was also put in a headlock finds no support even in the accused's evidence or the evidence of the persons present when the event staff entered the washroom. T.M. initially told the police that it was just J.T. who had been put in a headlock. I find T.M. is now mistaken on this point.

[38] T.M. was also apparently unaware of the intervention and presence of K.C. T.M.'s identification of the accused J.T. as the person involved in the fight with A.J. elicited twice in cross-examination was based on his recollection of the accused's face. I find no weight can be placed on that identification given the lack of details to explain why he came to that conclusion.

[39] T.M.'s account of the start of the altercation and the fact that the person who emerged from the shared stall was put in a headlock was credible and consistent with the other credible evidence at trial. His present memory was unreliable as to the involvement of a second party in a headlock which was inconsistent with his statement to police and inconsistent with the other credible witnesses. Likewise his evidence that J.K. did not intervene is inconsistent with the credible evidence of J.K. and the observations of Neena Jaswell. T.M. admitted his memory of the events after the altercation started wasn't good and some information he appears to have learned from others. I find I cannot place much weight on that portion of his testimony.

[40] J.K. was an impressive witness who testified in a neutral and factual manner and responded in detail to questions put by both counsel. Where the preceding witnesses conveyed directly or by demeanor to different degrees some reluctance to testify on behalf of the Crown, J.K. presented in a forthright manner. That doesn't mean J.K.'s evidence was free of issues. His initial story to the police indicated that he was uninvolved in the incident. He explained that he said that to the police on affirmation because his parents were very upset about the incident and upset that he was going to speak with the police. He'd told his parents he wasn't involved and when he first spoke with the police he told them the same thing. Now at trial he's 18 not 16 and he understands the special importance of telling the truth in this context. He specifically asked his father to wait outside the courtroom during his testimony so he could give the court a candid account. Considering J.K.'s age at the time and the circumstances as described I find the inconsistency between his evidence at trial and his initial report to police is reasonably explained.

[41] J.K. went to the event with the complainant A.J. and T.M. He had one or two shots of rum from the bottle the others shared and had some of the marijuana they shared hours earlier. J.K. testified that the accused J.T. emerged first from the shared stall and confronted A.J. J.K.'s group was laughing and this led to an altercation. J.K.'s evidence on this point is consistent with A.J. and T.M. He said after pushing and shoving A.J. put J.T. in a headlock. That's also consistent with A.J.'s evidence and the credible portion of T.M.'s evidence. J.K. saw J.T. with a knife. He did not see the stabbing but his evidence that A.J. was involved in a fight with one person, that that person ended up in a headlock and that person had a knife is all consistent with A.J.'s logical account, consistent with the circumstantial evidence of the location of the complainant's injuries, consistent with the accused's injuries as showing his proximity to the knife and his admitted presence in the washroom at that moment, and consistent with the observations of Neena Jaswell.

[42] J.K.'s evidence that he grabbed the wrist of J.T.'s arm that held the knife is confirmed by the evidence of K.C. that a second person grabbed J.T.'s wrist as K.C. grabbed the knife from the other direction.

[43] J.K.'s testimony as to the circumstances of the incident is consistent with the rest of the credible evidence at trial and was shown to be reliable. His testimony that the person who first emerged from the shared stall was the person who fought with A.J. and also the person who had the knife is consistent with the credible direct and circumstantial evidence at trial. He identified that person by name as J.T. but it's plain that he got that name after the fact. He testified that he recognized the accused's face but was unable to articulate what details led him to that conclusion. I'm unable to give his dock identification much weight on that basis but I accept his evidence that the person first out of the shared stall was the assailant with the knife.

[44] Sonia Sallan was working as event security and had no connection to any party. She went directly to the injured A.J. so it's understandable that she focused on him, but her evidence showed a person in a red shirt left the washroom as other witnesses said and two others were present in the washroom and left which is consistent with the evidence of T.M. and J.K. Ms. Sallan's testimony was further evidence showing that the defence theory that T.M. and J.K. weren't in the washroom during the altercation was not correct.

[45] Neena Jaswall was able to provide much more detailed evidence regarding what happened with the persons in the washroom other than the complainant A.J. immediately after the stabbing. She first encountered a man in a red shirt walking out past her. She then saw a person who looked shocked, holding a knife in his hand who said that he'd prevented his friend from being stabbed. She saw that the blade was towards his hand and he was cut. She saw another man there wearing a turban which other evidence identifies as J.K. He was the only person wearing a turban in the washroom. Ms. Jaswell's observations are consistent with K.C. and J.K.'s evidence and further contradict the defence assertion that J.K. wasn't in the washroom during the incident. She saw K.C. identify the accused for the police immediately after the incident from among a group of persons wearing red shirts.

[46] The credible evidence at trial shows that the incident started with three 16 year olds in the washroom making fun of two others who had shared a stall to drink gin. The first person to emerge from the stall confronted A.J. and became involved in a struggle. A.J. put him in a headlock. Nobody saw the stabbings including A.J., but the circumstances of the altercation and the location of the injuries is consistent with the blows having been inflicted by the person in the headlock to escape from the bigger A.J. That person had the knife in his hand until it was taken from him and he left the washroom.

[47] In one of the few credible portions of his evidence, the accused admitted that he was in the shared stall and that he was the first to emerge. The credible evidence of A.J. and J.K. and the credible early portion of T.M.'s evidence show that the person who emerged first from the stall was the one person involved in the altercation with A.J. That person took out a knife until it was taken from him in a struggle. Their evidence is consistent with J.T.'s injuries showing he was directly involved in the altercation in the washroom and in contact with the knife.

[48] The combined evidence of the other witnesses including the identification of the accused to the police at the time of the incident by K.C. from among a group of young men is further evidence identifying the accused as the assailant. The accused was wearing a red shirt that was seized upon arrest. While none of the dock identifications would be sufficient to identify the accused either alone or in combination, the whole of the evidence shows beyond a reasonable doubt that the accused was the assailant who stabbed A.J. I can find no evidence or combination of evidence that could reasonably leave a doubt in that regard.

Aggravated Assault Included?

[49] There are three ways that one offence may be included in another:

• by description in the enactment creating the offence,
• by description on the count on which the accused is charged,
• or by specific statutory provision.

R v. Pelletier, 2012 ONCA 566, at para. 105

[50] Section 239(1) of the Criminal Code proscribes the offence of attempted murder by "any means" and does not define the ways in which the offence may be committed. Aggravated assault is not included by the Code definition nor by a specific statutory provision – Pelletier at para. 107.

[51] The third way in which an offence may be "included" in another offence charged is where the description of the offence charged also contains the essential elements of another offence – Pelletier at para. 109. That's the case here where Count 1 alleges that the accused attempted to murder A.J. by stabbing. The particularization of that count as stabbing, a form of assault that involves wounding and endangers life, falls within the s.268(1) definition of Aggravated Assault. On count 1 as particularized, Aggravated Assault is an included offence.

Conclusion

[52] I find that the Crown has not proved count 1 beyond a reasonable doubt but has proved the included offence of Aggravated Assault to the same standard. The Crown has proved the Assault with a Weapon alleged in count 2. The defence admits that the Crown could otherwise call evidence to prove count 3 Obstruct Peace Officer and count 4 Personation. The Crown has proved the accused possessed a weapon for a dangerous purpose as alleged in count 5. The Youth sentence referred to in counts 6 and 7 was proved by documentary evidence and the findings above amount to breaches of the requirements of that order to keep the peace and not possess any weapons as alleged in those counts.

[53] The Young Person J.T. is found guilty of Aggravated Assault s.268(1) on count 1, and guilty as charged on the remaining counts. Both parties are invited to make submissions with respect to multiple convictions for the same delict and whether a stay of count 2 would be appropriate.

Released: January 10, 2017

Justice Joseph F. Kenkel