Court File and Parties
Ontario Court of Justice
Date: 2018-03-02
Court File No.: Brampton 3111 998 12 1026
Between:
Her Majesty the Queen
— and —
Haldane Smithen-Davis and Jason Hamilton
Before: Justice G. P. Renwick
Heard on: 12, 13, 14, 16, 20 February 2018
Reasons for Judgment released on: 02 March 2018
Counsel
E. Taylor — counsel for the Crown
M. MacGregor — counsel and A. Warth for the defendant Haldane Smithen-Davis
J. Struthers and A. Pinnock — counsel for the defendant Jason Hamilton
RENWICK J.:
INTRODUCTION
[1] Shortly after midnight on 07 December 2012, three men broke into the residence of Milorad and Slavica Vrga on Corkstone Glade in Mississauga, while the Vrgas were in their home. The three men were armed with at least one firearm. Mr. Vrga struggled with the men and he managed to shoot and kill one of the intruders, Ibrahim Abukar ("IA"). The two other men fled, but in so doing, it is alleged that one left behind a pair of gloves while the other left behind a pair of shoes.
[2] Mr. Smithen-Davis ("HSD") and Mr. Hamilton ("JH") are charged with one count of breaking and entering a dwelling with the intent to commit an indictable offence. [1] Initially, this trial was scheduled to take 15 days, but due to the focus and agreement of all counsel, the trial was truncated to include three agreed statements of fact ("ASF"), two of which were written and one was verbal, several exhibits, and the testimony of three brief witnesses. I am most grateful to all counsel for how they conducted this trial.
[3] The main issue in this case is the sufficiency and probative value of circumstantial evidence that is purported to prove the identity of the two men who fled the Vrga residence. The identification evidence is entirely circumstantial. The admissibility of hearsay text messages recovered from IA's smartphone was a secondary issue in the trial, but because the admissibility or exclusion of this evidence will determine the totality of circumstances on which the prosecution's burden will be assessed, I will determine the admissibility issue before turning to whether the prosecution has met its onus of proving the identity of the perpetrators beyond a reasonable doubt. Before beginning the discussion of these issues, it assists to note some general legal principles which will govern my analysis.
GENERAL LEGAL PRINCIPLES [2]
[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution's burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that either, or both, of the defendants broke into the Vrga home he, or they, will be acquitted of this charge.
[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [3] If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow.
[6] The evidence of identity in this case is circumstantial. In order to be satisfied that the identity of one of the suspects has been proven to be one of the defendants beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence. [4] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden.
[7] In a case with multiple defendants I must consider the evidence against each defendant separately. Even where I am satisfied of the guilt of one of the defendants, I must not use that as proof that the other defendant also committed the offence.
[8] In the next part, I will outline some of the evidence. Although many of the facts were agreed as proven by the parties, the weight or significance of each fact is a determination that I must make. I will also provide an assessment of some of the viva voce testimony, with references to the evidence taken. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken lengthy notes, and I have assessed the witness' testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.
THE EVIDENCE
[9] There is no contest between the parties that the side door of the Vrga residence showed evidence of being forced open when police attended to investigate a break-in. Photographs taken at that time depict a pair of gloves on the step at the side door and a white canvas shoe on the walkway leading from the front of the residence to the side entrance, several feet from the side door steps. As well, a second white canvas shoe, was photographed just inside the side door. The photographs also capture two black boots, one was near the bottom step of the side door and one was inside the home next to the second white shoe. The black boots were not the subject of any agreed fact. [5] The photographs depict the deceased, IA, on the floor in a living room near a fireplace and a Christmas tree, with observable signs of trauma (blood) and the artefacts of medical attention. IA is wearing a dark (black or blue) long-sleeve shirt with a shoulder emblem resembling the Toronto Police crest, dark (black or blue) pants, black boots, and black gloves.
[10] From the photographs and the agreed facts I can readily make the following findings:
i. The three men who entered the Vrga home broke in through the side door;
ii. The gloves on the step at the side door were used by one of the two men who broke into the Vrga home, but not IA;
iii. The white canvas shoes were worn by one of the two men who broke into the Vrga home, but not IA;
iv. The black boots were recognized by one or more of the residents of the Vrga home and were not attributed to either of the three intruders;
v. IA wore an outfit resembling a police uniform, but it was not a police uniform;
vi. The BlackBerry ("BB") found on IA contains messages sent and received by IA leading up to the break-in; and
vii. IA used the user/profile name "IB" in his BlackBerry Messenger ("BBM") text messages.
[11] These facts should not be controversial. They easily flow from the agreed facts and the photographic evidence, which I accept as accurate and authentic. This means that I do not find that the items photographed were manipulated or staged prior to police arrival. There was no suggestion by either defendant that the contents of the photographs were manipulated in any way, and my conclusion also flows from the timing of the 9-1-1 call, made during the "altercation." While it is not impossible for one of the home's occupants to have handled the items noted prior to police arrival, given that police were contacted during the event, it is highly unlikely that this occurred. Moreover, depending on the police response time, there may not have been any opportunity for this to have occurred.
[12] Several questions arise on the evidence noted:
i. Who is the user of the phone represented in the BBM messages as J….;
ii. Who is the user of the phone represented in the BBM messages as Logix; [6] and
iii. What do the communications between IA, J…. , and Logix 3 establish?
However, before I can consider these questions, it will be helpful to resolve the hearsay issue.
Is the Hearsay Admissible
[13] Generally, out of court declarations sought to be introduced to prove the truth of their contents are inadmissible because the veracity and reliability of the statements cannot be tested by cross-examination: R. v. Bradshaw, 2017 SCC 35, at para. 1, and R. v. Middleton, 2012 ONCA 523, at para. 32. Exceptionally, hearsay statements are admissible if they fit into a traditional category of hearsay evidence or they meet the twin criteria (necessity and reliability) under the principled exception.
[14] The prosecutor sought to adduce many BBM messages found on the deceased assailant's phone. There are alleged discussions, the prosecutor says, which can establish the present intentions of IA to meet with an individual alleged to be HSD several days before the break-in. These communications can establish that HSD is the user of the BB with PIN 28F88F40. And, in a second set of communications, both defendants are alleged to be discussing meeting with IA within 90 minutes before the home invasion. On the Crown's theory, these messages prove that both defendants met up with IA at some time after 11:22 pm, or about an hour before the break-in. There is no issue that the proposed communications are relevant and if they are admissible they may provide circumstantial evidence of the identity of IA's confederates.
[15] The various BBM messages can be categorized as follows:
i. The statements of IA and J…. on 03 December, as recorded in the BBM messages recovered from IA's phone;
ii. The statements of IA and J… on 04 December, as recorded in the BBM messages recovered from IA's phone;
iii. The statements of IA, J…., and Logix 3 on 05 December, as recorded in the BBM messages recovered from IA's phone; and
iv. The statements of IA, J…., and Logix 3 on 06 December, as recorded in the BBM messages recovered from IA's phone.
[16] The prosecutor advanced several arguments in support of the admissibility of the various pieces of hearsay, depending on the author and the context. I will discuss each piece of hearsay evidence in turn.
The Hearsay Statements of IA and J…. on 03 December
[17] The Crown relies on the present intentions exception of the hearsay rule to adduce statements made by IA on 03 December. For the hearsay messages of J…., the prosecutor asserts that these are HSD's own admissions and they are admissible if I am satisfied on a balance of probabilities that the admissions are his.
[18] In R. v. Starr, the Supreme Court confirmed that the "present intentions" or state of mind exception to the hearsay rule may justify the admissibility of statements revealing the intentions of an out of court declarant, if made in the absence of suspicious circumstances.
[19] The statements sought to be introduced relate to the possible attendance of the out of court declarants at an event, after 6 [pm], at Troika Lounge on King Street. The statements were made between 4:13 and 4:24 pm on that date. Given the evidence of Dwight Grange ("DG") that HSD was in attendance with the deceased at Troika Lounge sometime before Christmas, and the photograph entered as exhibit 4 which confirms that testimony, the prosecution seeks the admissibility of these statements to advance the inference that J…. is HSD. I cannot assume that HSD is the declarant to determine the admissibility of J….'s statements. As well, I must consider each side of the out of court declarations independently.
[20] I am satisfied that IA was the user of his phone on 03 December when these statements were made. There is certainly no evidence to suggest otherwise. I am satisfied that the statements themselves indicate his then present intention to attend an event together with J…. after 6 o'clock at the Troika Lounge. Given the date of the communications and the fact that IA was seeking to know the location of Troika Lounge, and his eventual demise 4 days later, I am satisfied that the photograph of IA and HSD was taken at the same event that IA discussed in the BBM messages on 03 December with J…. . I note that the clothing that IA indicated in the messages that he was wearing, for the most part (his pants cannot be seen in the photograph) is confirmed by exhibit 4. Moreover, there is nothing suspicious about the communication with J…. .
[21] The statements of IA are being adduced to circumstantially prove who was using the phone represented in the BBM messages as J…. . The material aspect of this series of hearsay communications is the purported present intention of IA to attend an event at Troika Lounge on 03 December. The specific dangers raised by this hearsay are that each declarant may have been mistaken about the place he or she was going to attend, or, he or she was not being truthful about their intention to attend that event. An alternative explanation for the hearsay is that the discussion related to a different event at Troika Lounge (which was not captured in the photograph which became exhibit 4), also attended by IA.
[22] On all of the evidence available to the court, including the absence of any reason for IA to concoct a story to mislead J…. on 03 December, I conclude that the corroborating evidence of exhibit 4 can only explain IA's present intentions on 03 December to attend the event he was eventually photographed attending.
[23] This analysis applies with equal force to the then-present intentions of J…. . He or she knew about the event at Troika Lounge, including where Troika Lounge is located, and the event's starting time and the proposed attire. I find that the user of the phone shown in the messages as "J…." (the letter J followed by four dots) represents someone whose name begins with the letter J and is then followed by four letters (a-s-o-n). The evidence is clear that HSD has been known to use the name Jason. The photograph upon which the prosecution relies as corroborative evidence captured a moment in time when 2 of the 120 or so guests posed with the party's host. On the basis of DG's evidence that he only knew IA through HSD, and IA's messages, "I'm down fam," "He sent me the text," "Troika lounge," which I have determined is admissible under the present intentions doctrine, I am satisfied that all of the evidence can only be explained by the fact that HSD must be J…. .
[24] I have considered and rejected an alternative explanation that someone other than HSD is J…., because there is no basis in the evidence to support this alternative theory and the evidence that does exist points only to the conclusion that HSD used the phone under the user name J…. on 03 December. My conclusion is based on the following facts that are clearly established on the evidence:
i. DG only knew IA through HSD;
ii. DG sent IA the text about the event at the Troika Lounge;
iii. IA knew HSD;
iv. IA planned to attend the Troika Lounge with J….;
v. HSD was known by the deceased's brother as J;
vi. HSD was known by DG as J or Jason;
vii. Like J…., HSD was known to have a BB and to use BBM to communicate; [8]
viii. IA, DG, and HSD were photographed together at the Troika Lounge; and
ix. The short period of time between the party at Troika Lounge and IA's death suggests that the photograph of IA and HSD (exhibit 4) was taken on the same night that IA communicated with J…. about going to that exact location, wearing those same clothes.
All of these facts independently prove very little, however, when linked together, they form a powerful chain of irresistible inference which satisfies me that HSD used the phone by the username J…. in the BBM messages with IA on 03 December to indicate his then-present intentions to attend the Troika Lounge with IA. Their separate then-present intention was carried out sometime after 6 pm on 03 December, when IA and HSD met up at Troika Lounge as planned, and recorded by exhibit 4.
[25] Accordingly, I find that the present intentions exception to the exclusionary rule applies in respect of both IA's and J….'s statements on 03 December, which are admissible to prove the truth of their contents. HSD's statements are also admissible under the party admissions rule, employing the same rationale, above.
The Hearsay Statements of IA on 04, 05, and 06 December
[26] The Crown sought to rely upon the co-conspirator's exception to the exclusionary rule to justify the admissibility of these hearsay statements.
[27] In R. v. Carter, the Supreme Court established three requirements to adduce hearsay statements under the co-conspirator's exception. First, a trier of fact must be satisfied that there is proof beyond a reasonable doubt that a criminal conspiracy existed. Second, using only the evidence admissible against a party, the trier must be satisfied on a balance of probabilities that the party was a member of the conspiracy. Third, only the hearsay statements of other co-conspirators, as determined by the second step, which are made in furtherance of the conspiracy qualify for substantive admissibility against all member parties to establish their involvement in the conspiracy and their possible guilt beyond a reasonable doubt.
[28] The parties agree that the break-in was not spontaneous, but rather it was the result of an agreement of at least three parties, who ultimately broke into the Vrga home. It would seem on this concession that the first prerequisite of Carter is met. I am satisfied beyond a reasonable doubt that IA and his two confederates agreed to commit the break-in and they planned the break-in before it took place. Their arrival at the same time was not happenstance or coincidence. The use of gloves by at least two of the parties and Mr. Vrga's evidence that it appeared that all three intruders were armed demonstrate some degree of planning to achieve the aim of the agreement.
[29] I am satisfied on a balance of probabilities that the following evidence directly admissible against IA proves his membership in the plan to commit the break-in:
i. IA was one of the three men who broke into the home;
ii. The clothing worn by IA, which is dark, and resembling a police uniform, was deliberately worn to conceal his presence or to provide a ruse to justify his presence on private property if he were detected by the homeowner or someone else before or during the break-in;
iii. IA was wearing gloves during the break-in; and
iv. IA's BBM messages with J…. on 04, 05, and 06 December and his communications with Logix 3 on 06 December, wherein he discusses the timing, attire, mode of transportation, and meeting with them in the days and hours leading up to the break-in.
[30] I find that IA's statements on 04, 05, and 06 December are admissible under the co-conspirator's exception to hearsay if they were made in furtherance of the plan to commit the break-in.
[31] The material aspects of IA's communications on 04, 05, and 06 December include the following statements: "He understands we can't go on a weekend right," "And I have tests early next week," "Exams," "tomorrow morning," "tomorrow or Friday," "We're not gaining anything by waiting," "Ok bro, let's keep in mind next week is outta the question since I got exams cuz," "Ok u trying to roll tonight," "Cuz we gotta make it happen," "Wanna roll in the AM," "So u wanna do it now," "Are we rolling or checking," "So uni?," "Cross street homie," "Cuz are you coming in this wheels," "So we can take 1 wheels," "Ok so where you wanna meet," "Where you wanna meet," and "Cuz we here."
[32] The specific hearsay danger of admitting these statements includes IA's possible dishonesty about when he wants to conduct what is being discussed and his purported arrival noted by the message, "here." An alternative explanation for these communications is that these messages have nothing to do with the break-in, wearing a uniform, or meeting up in one vehicle.
[33] I have considered the evidence of DG that IA was a business school student around this time-frame. I have considered IA's involvement in the actual break-in which occurred in the early morning hours, on a Friday, a short period of time after these communications were made. I rely upon the fact that the phone containing these messages was found on IA and the user name is "IB," which could represent IA's first name. Lastly, I have considered that IA was found dead at the scene of the break-in, which was not spontaneous, while wearing dark clothing, a pretend police uniform, and gloves. The only rational explanation that accounts for all of the evidence is that these communications represent IA's intention to commit the break-in with others, in the early morning hours, of Friday 07 December. These communications were made in furtherance of the break-in because they discuss the logistics of timing, dress, transportation, and meeting up with the others just before the break-in occurred. All of the evidence satisfies me that these hearsay statements could only have been made in furtherance of the specific conspiracy to break-into the Vrga residence with two others.
[34] Accordingly, I find that IA's statements on 04, 05, and 06 December, made in furtherance of the conspiracy are admissible for their truth against him and any other probable member.
The Hearsay Statements of J…. on 04, 05, and 06 December
[35] Again, I must satisfy myself using only the evidence that is directly admissible against J…. that he or she was a probable member of the agreement with IA to break into the Corkstone Glade residence, before I can determine whether the hearsay statements made in furtherance of the agreement by any of the probable members have probative value to establish the identity of two of the perpetrators of the break-in.
[36] The material portions of these communications include: "I'll tell him," "What time u wanna circle," "I'm linking log," "Waitin on word," "U thinking morning or nite," ""Not sure but I like early," "We gonna go get this paper soon then ," [9] "I'll see what lo says," "I wanna get it done soon," "I know but wheels cuz," "I'm just waitin on him," "Headin by spot," "Fuck if I had a next wheels just the 2 of us could go," "I'm linkin Lo," "He's comin for u," "He's on his way," "Roll," "U ready," "Yea think so," "He's there," "Homie is waitin cuz," "Meet by bayvillage," and "I'm at side of loblaws."
[37] On the basis of the agreed facts in relation to IA's involvement in the break-in and the timing and the content of the messages between J…. and IA, the fact that IA arrives at the break-in with two others in a very short period of time after the messages terminate, that J…. directs IA in terms of bringing a "uni," and he or she indicates contact with a party named "Lo," some thirty-four hours after he or she tells Logix 3 "…so u prob gonna have to grab my boy," I have no difficulty finding that J…. was probably a member of a conspiracy with IA and someone else to commit the break-in that actually occurred. The use of cryptic language and short forms to disguise the true nature of these illicit discussions also supports this conclusion.
[38] In terms of the reliability of these messages, the specific hearsay danger is that J…. may be attempting to mislead the recipient(s) of his or her messages because he or she was not actually planning anything, he or she was not actually waiting on word from someone, he or she was not actually "headin[g] by [the] spot," he or she did not want to meet at "bayvillage," or he or she was not at the side of [L]oblaws. Theoretically, it is possible that these communications are not about meeting up with IA and Logix 3 (the recipients) for any reason, or, they do not relate to the break-in that occurred within 63 minutes after J….'s last message.
[39] However, there is no rational explanation for suggesting to meet up with one of the known members of the conspiracy after many conversations about the timing of the unspecified early morning event, that just happens to coincide with one of the members of the conspiracy being found committing an agreed upon plan with others a very short period of time after these communications end, if these messages are not about the Vrga break-in. I can think of no rational reason why J…. would seek to mislead two others he or she appeared to want to meet up with in seemingly spontaneous conversations, which were recorded as they occurred, long before J…. could have known that they would end up in the hands of police investigators, and which took place about an hour before the break-in where one of the recipients of his or her messages is found.
[40] I have no difficulty concluding that the only reasonable explanation for J….'s BBM messages is that these hearsay statements support the Crown's theory that J…. conspired with IA and another person to break into the home on Corkstone Glade on 07 December. As a result, I find that J….'s statements on 04, 05, and 06 December, referred to above were made in furtherance of the conspiracy. Again, they demonstrate the finalization of a plan in terms of the timing, the transportation, and the rendezvous to commit the objective of their plan. These hearsay statements are admissible for their truth against J…. and any other probable member of the conspiracy.
[41] The question that must be answered at this point is who used the BB represented by the user name J…. on 04, 05, and 06 December. To determine the user known in the BBM messages as J…., I must consider all of the admissible evidence.
[42] The Crown suggests that the totality of circumstantial evidence supports a finding that HSD used the BB with PIN 28F88F40, associated to the username J…. . In reply, counsel for HSD submits that the circumstantial evidence does not establish who used the BB that communicated with IA and Logix 3 .
[43] One of HSD's arguments is premised on the cell tower evidence. Danielle Fortier testified from Rogers Communications and introduced a map depicting the locations of Rogers' cell towers, also known as cell sites. Her evidence was that calls or text messages generally transmit through the tower with the strongest signal and this is usually the tower which is geographically closest to the sending or receiving cellular telephone. Her evidence makes it clear that topography, weather, and structural barriers or physical obstructions may interfere with radio waves to prevent cell phones from using the closest cell site. As well, she testified that in densely populated areas cell phones sometimes use adjacent cell sites to the towers physically closest to them because the signal may be stronger. HSD accepts Ms. Fortier's evidence as accurate and so do I.
[44] The Crown submits that one of the pieces of circumstantial evidence that proves that HSD is J…. is the cell tower use by a phone associated to HSD [10] during a call received from HSD's wife one half hour before the home invasion. The cell tower is located 1.8 kms from the Vrga residence. Standing alone, I agree with HSD, this evidence does little to support the Crown's theory that HSD used the BB phone with the username J…. besides putting HSD in an area proximate to the break-in around the same time.
[45] As well, and despite the fact that both the deceased's brother, Abukar Abukar ("AA") testified that HSD used the name J, and DG testified that HSD used the name J or Jason, the defendant suggested that these are common monikers. In fact, DG testified that his roommate at the time was named J. [11] Again, this is not an unreasonable submission, but I caution myself that I cannot consider individual pieces of circumstantial evidence apart from the greater context of all of the other evidence.
[46] On the basis of the following evidence, I conclude that HSD used the J…. phone:
i. HSD used the name J or Jason. The evidence of AA and DG was clear, unambiguous, and unchallenged by the defendant, and I accept it;
ii. HSD used a pseudonym, Jason Smith, and although having an alias is not inherently suspicious, they can assist people in evading law enforcement;
iii. The four dots in the profile J…. represent the four letters a-s-o-n;
iv. From the agreed facts, Darren Nash knew HSD to have "random [phone] numbers." This supports the inference that HSD had more than one phone on 06 December;
v. Darren Nash knew HSD to use a BB, which is significant because J…. used a BB;
vi. [The BB used by J…. was a Rogers phone and HSD's 647-708-4290 phone was a Mobilicity phone which used Rogers cellular towers;] [12]
vii. HSD knew IA. HSD can be included in the pool of people who could have used the BB with the username J…. to communicate with IA on 03 December;
viii. HSD used the BB with the username J…. to communicate with IA about going to the party at Troika Lounge on King Street;
ix. HSD discussed IA's death with DG within days after it occurred (between 07 and 16 December when he left Canada);
x. HSD was aware of the circumstances of IA's death (that IA had been shot trying to break into somewhere); [13]
xi. The content of the BBM communications leading up to 07 December between IA and J…., make it clear that they were planning something for Friday morning. Within two hours of their last communication at 10:43:19 pm on Thursday 06 December, IA was involved in the break-in with at two other males, one of whom I infer is the person using the BB as J…. ; and
xii. HSD's DNA is found in one of the gloves used by one of the unknown men who broke into the home on Corkstone Glade. This means that HSD can be included in the pool of potential people who discussed doing something on Friday morning using the BB with the username J…. .
All of these independent pieces of circumstantial evidence form a compelling picture of HSD using the BB with PIN 28F88F40, to communicate and plan the break-in with IA that eventually took place.
[47] Looking at the individual pieces of circumstantial evidence apart from their larger context would be like looking at one pixel of a video screen and trying to discern the plot of a movie. An example proves the point.
[48] If I tried to infer that J…. was HSD on the basis of the DNA evidence alone, I would be unable to do so despite the knowledge that DNA can be compelling evidence of identity. The DNA evidence establishes that there are several contributors to the DNA found on both gloves. In fact, the inside cuff of the right glove "contained a mixture of DNA from at least four individuals, one of whom was male, but this profile was not suitable for comparison." Counsel for HSD suggests that this fact and the fact of two contributors of the DNA on the left glove mean that there were up to six different people who wore the gloves. Despite my rejection of this submission for the reason that counsel's suggestion does not necessarily follow from the accepted evidence (one or more contributors may have left DNA on both gloves), it is clear that in the absence of any other evidence, it is simply impossible on the basis of the DNA evidence alone to exclusively infer that J… was HSD.
[49] However, when I consider how unlikely it is that HSD's DNA is found on a glove at the break-in that appears to be planned by IA and someone else, in circumstances where HSD's 647-708-4290 phone has him in the general area about 30 minutes before the start of the break-in, four days after someone using the 28F88F40 BB discusses going to Troika Lounge with IA, and IA and HSD attend Troika Lounge during that timeframe, and IA is wearing similar clothes to what he described in the communications on 03 December, and HSD uses the name Jason, which could be what the user/profile J…. stands for, it becomes almost irresistible to conclude that HSD used that BB. And even if I am wrong in this assessment, irresistibility is not the appropriate standard for inferences drawn from circumstantial evidence.
[50] I am satisfied beyond a reasonable doubt that the only reasonable inference I can draw is that HSD used the BB with the username J…. and any competing inferences are not reasonable because they cannot be reconciled with the entire body of circumstantial evidence in this case.
The Hearsay Statements of Logix 3 on 04, 05, and 06 December
[51] The prosecutor submits that the hearsay statements contained in the BBM messages of Logix 3 can be adduced under the party admission exception of the exclusionary rule. If I am satisfied on a balance of probability that a defendant made a particular admission, the evidence is admissible on two bases. Firstly, it would be admissible because if it is the defendant's own admission, it is not considered hearsay. A defendant is presumed to know the veracity of her own admissions and the out of court statements need not be tested under cross-examination by that defendant. Secondly, party admissions are admissible because they provide circumstantial proof of a defendant's identity by narrowing the pool of potential declarants of the hearsay, if the statements are unique, irrespective of the statement's truth. The probative value of these types of out of court declarations is found in the fact that the statement was made and its connection to the defendant: R. v. Evans, at paras. 19-24.
[52] The difficulty with the prosecution's submission is that the BBM messages attributed to Logix 3 tell us almost nothing about the user of that phone in and of themselves. It is only when I consider other evidence that I am able to make any findings with respect to the identity of Logix 3 .
[53] From the first ASF we know that the BB used by Logix 3 was registered to someone known as Willy Rufford of 1721 Eglinton Avenue West, Toronto. While the date of this registration is unknown, the police first learned of this fact on 08 April 2014. In 2016, police learned that the alternate contact number provided in the registration information for this BB was a telephone number that was formerly associated to a business previously owned by JH at an address strikingly similar to Rufford's: 1712 Eglinton Avenue West.
[54] Counsel for JH argues that there is no actual, current evidence linking JH to this BB. There are four reasons to dismiss this submission.
[55] Granted, I am not an actuary, but I cannot imagine how infinitesimally small is the likelihood that someone other than JH used the same phone number in December 2012 that was known in 2014 to be assigned to Willy Rufford who used an alternate contact phone number that at one time was used by the defendant for his business, which happened to be located at an address that matched Willy Rufford's if the last two digits of the four digit street address were transposed. Similar to determining the directionality of the stairs in an M.C. Escher drawing, one's head begins to swim when trying to imagine that someone other than JH used this BB during the relevant time period. While the theoretical possibility exists that Willy Rufford is an actual person and not an alias for JH, it is not reasonable to draw this inference on the evidence adduced in this trial.
[56] The analysis is strengthened when common sense is applied. There is almost a proprietary aspect to cellular telephone numbers. Although people may change their cellular phones on a regular basis, they do not tend to change their phone numbers, even over extended periods of time. This makes sense from a practical standpoint: It becomes difficult to track down and contact someone if they frequently change telephone numbers. This is true whether the person is using a phone number registered in their own name, or they are using another name (for instance, "Willy Rufford"), for whatever reason. And, if someone is using an alias for any untoward reason, they certainly have no need to change their phone number to avoid apprehension.
[57] Second, it is admitted by JH that he maintains an internet presence with the profile name of "Jay J Logix." This is some evidence which tends to make it more likely than without this evidence that JH was the user of the phone with a user/profile name of Logix 3 . I recognize that the agreed facts prove that there are innumerable other users of a similar profile with "Logix" in the name, but again, I cannot imagine how few of those could also be known as Willy Rufford, with both a telephone number and an address that has some connection to JH, without actually being JH.
[58] Third, the likelihood that someone other than JH used Logix 3 shrinks to almost zero when paragraphs 36 and 69 of the first ASF are accepted. When examining the browser history of IA's BB police learned that the phone was used to visit the Facebook site of "jlogix," less than two months before the break-in. This is almost identical to the actual Facebook name admittedly used by JH and the profile name Ms. Ellis knew for JH.
[59] Lastly, the content of the three messages sent by Logix 3 from 11:01:10 pm to 11:03:02 pm on 06 December suggest that he is trying to meet up with IA approximately 90 minutes before IA commits the break-in and gets shot. These are extremely unique messages. The number of people who could have sent similar messages about meeting up with IA in such a short time frame before IA committed the break-in with two others is very small. As Sopinka J. held in Evans:
…the statements still have some probative value as non-hearsay. Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize that the statements are not being used as truth of their contents at this stage.
For example, if a declarant stated: "I have a tattoo on my left buttock which measures 1 centimetre by 1 1/2 centimetres and resembles a four-leaf clover" and it was proved that the accused had such a tattoo on his left buttock, the identity of the group to which the declarant belonged would be narrowed to include the accused as the most likely person, and his family or intimate friends, who would be in a position to know this fact. The statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused. [14]
[60] Without relying upon the content of Logix 3 's messages for their truth, they assert a meeting between the declarant and IA shortly before IA and others committed a crime. The number of possible declarants who were in a position to make these statements is small. JH's deoxyribonucleic acid ("DNA") is found at the scene of the crime. Again, the probability that someone other than JH could have sent those messages on the BB which was associated to JH, who was not JH, but they wore a pair of shoes that had also been worn by JH, is almost nil.
[61] When I consider the DNA evidence along with the other three facts discussed above (the BB phone number is associated to a subscriber, Willy Rufford, with an uncommon connection to a phone number and address associated to JH, JH uses a moniker similar to Logix 3 , and IA searched for a Facebook user with a strikingly similar account name to JH's), I am satisfied beyond a reasonable doubt that the only reasonable inference I can draw is that JH was the user of the BB with the PIN 2A2DD5FE and the user/profile name Logix 3 .
[62] On that basis, I conclude beyond the required probability standard that the statements contained in the BBM messages attributed to Logix 3 are JH's. In reliance upon the content of these utterances (Logix 3 and IA are trying to meet up close in time to the break-in), and the presence of JH's DNA left at the scene during the break-in, I conclude on a balance of probabilities that JH was also a member of the plan to invade the Vrga's dwelling.
Probity and Prejudice
[63] Neither defence counsel made any submissions to suggest that the hearsay admissions should not be admitted into evidence on the residual ground that their probative value was outweighed by their prejudicial effect. However, I am prepared to consider this assessment out of an abundance of caution.
[64] The probative value of the BBM messages is high. These messages have the potential to prove that the defendants were involved in the likely plot to rob the Vrgas and they were responsible for carrying out the plan and committing this crime. For the reasons given below, I am convinced that the probative value of the hearsay messages greatly outweighs any actual prejudicial effect that could result from their admissibility in this trial.
[65] Prejudice does not refer to the potential of evidence to prove the offence before the court, because if that were the case, all evidence would forever be caught in an inadmissible purgatory: the stronger the evidence, the greater the prejudice, the less likely the evidence could be admitted at trial. Rather, prejudice refers to the potential for the misuse of evidence to support impermissible inferences (moral prejudice – the defendant is a bad person, or reasoning prejudice – if the defendant did some other bad act they likely committed the offence), to distract or confuse the trier of fact, or to unnecessarily protract the proceedings: see R. v. Wray.
[66] While there may be some slight prejudice in a trial where a jury heard evidence of a defendant's involvement in a plan to commit an offence for which there was no actual evidence that the defendant went through with the plan, but the jury impermissibly used the evidence of planning and on this basis alone they decided to punish the defendant by reaching a verdict of guilty on the commission of the crime that had been planned, this risk is reduced to almost zero in this case. I am aware of this risk, and this is not a case where there is a total dearth of evidence that the defendants committed the break-in.
[67] As well, if the hearsay in this case had only been admitted as against each individual declarant, there would be a risk that the court might misuse the statements of one declarant against another. However, given the use of the co-conspirator's exception to hearsay as the basis for the admissibility of the material hearsay in this case, there is no risk of confusion or the misattribution of the declarations of one conspirator to another because this hearsay rule is an exception to that general restriction.
PROOF BEYOND A REASONABLE DOUBT
[68] In this section, I will consider whether the evidence establishes that the defendants were the perpetrators beyond a reasonable doubt.
Haldane Smithen-Davis
[69] There are several pieces of circumstantial evidence by which the prosecutor seeks to prove that HSD planned and committed the break-in with IA and Logix 3 :
i. In the BBM messages between IA and J…. approximately 24 hours before the break-in, IA discussed his money issues, he needed to borrow money to pay his rent, in the midst of discussing their plans for the next morning;
ii. In the BBM messages between IA and J…. approximately 24 hours before the break-in, they spoke in a cryptic manner – for instance, "We gonna go get this paper soon..;" [15]
iii. In the BBM messages between IA and J…. approximately 24 hours before the break-in, they discuss not waiting any longer and doing it "tomorrow morning," "next week is outta the question since I got exams," and "weekend is a no-no as usual;"
iv. In the BBM messages between IA and J…. approximately 3 hours before the break-in, they discuss "trying to roll tonight," "Checkin it first," and "if I had a next wheels just the 2 of us could go;"
v. In the BBM messages between IA and J…. approximately 24 hours before the break-in, IA asks "So uni" and J…. responds "Yea think so;"
vi. In the BBM messages between J…. and Logix 3 approximately 35 hours before the break-in, J…. writes "Tied from bout 4:30 to 5:30 so u prob gonna have to grab my boy" and Logix 3 asks "We are just driving by or checking it out" to which J…. answers "Depends on opportunity;"
vii. In the BBM messages between IA, J…., and Logix 3 approximately 90 minutes before the break-in, the three men discuss meeting up, taking one car ("1 wheels"), and where they are at different times. These discussions end approximately 63 minutes before the break-in where IA dies and the DNA of HSD and JH is located; and
viii. HSD left Canada just over a week after the break-in, and he did not return despite having a return trip ticket for 14 January 2013, and being on probation for part of that time period, until he was extradited in the spring of 2016. [16]
[70] Counsel for HSD argues that the agreed facts prove that the defendant had a different phone from that used to communicate with IA and Logix 3 , and this proves that HSD is not J…., or alternatively, this should raise a reasonable doubt that J…. is HSD. This submission fails to consider the circumstantial evidence in totality. If there were only the single phone call between HSD and his wife approximately 30 minutes before the break-in from a location proximate to the cell tower used to connect the call, which is 1.8 kms from the Vrga home, I would agree that on its own this call establishes very little. However, when that evidence is coupled with the communications between IA and J…. discussing the Troika Lounge on King Street, the fact that HSD knows IA (according to IA's brother, AA), the joint presence of IA and HSD at the Christmas party held sometime before 07 December by DG at the Troika Lounge on King Street as captured in the photograph showing IA, DG, and HSD, the clothing worn by IA in the photograph, the communications between IA and J…. on 06 December, the glove found outside the break-in with HSD's DNA, the use of the nickname J and Jason by HSD, and the fact that HSD in a very general way matches the vague description of the two surviving intruders in paragraphs 8 and 9 of the ASF (exhibit 1A), the evidence takes on a greater significance in establishing the inference sought by the prosecution.
[71] HSD submits that there are other possible scenarios, even accepting that HSD was present, which raise a reasonable doubt about his involvement in the break-in. Counsel for HSD notes that the gloves containing HSD's DNA are found outside the residence. Counsel rightfully submits that a mere bystander to a criminal offence is not a party to an offence.
[72] I remind myself that in R. v. Paul, our Supreme Court held that:
the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt [does not include] the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused. [17]
That said, I must not reverse the onus of proof. The defendant need not offer alternative explanations for circumstantial evidence in order to raise a reasonable doubt. Where the defendant advances alternative inferences, they "must be reasonable, not just possible:" Villaroman, supra, at paras. 35 and 42.
[73] I reject HSD's submission for two reasons.
[74] First, the conversations leading up to the break-in include IA asking HSD "So uni?" Given that IA is found dead at the Vrga residence wearing a phoney police uniform, I find as a fact that this question was meant to solicit HSD's views on whether or not IA should wear the his fake police uniform. HSD responds, "Yea think so." HSD is clearly not just someone who happened to be along for a ride and unwittingly ended up at a fatal break-in. I find that he was a direct conspirator and assisted in carrying out the offence. Even if I concluded that HSD had not entered the Vrga home, on the basis of the messages where J…. discusses the uniform worn by IA, the "wheels," and the timing of the offence, coupled with the location of the glove that included his DNA, past the gate and on the step at the door that was forced open (a significant distance from the sidewalk, well onto the private property), I would have no difficulty concluding that HSD was an active participant in the joint enterprise to break into the residence.
[75] Second, it is agreed among the parties that there were three intruders into the home. There is no evidence suggesting that there were four men in attendance and HSD was simply present, but remained outside the residence. It is speculation to suggest otherwise. In fact, on the basis of the agreed facts, I find that HSD used the gloves while he forced open the side door of the home and once that was accomplished he discarded the gloves and entered the basement with the two other men.
[76] Counsel for HSD also suggests that the admissibility of the BBM messages attributed to J…. does little to prove the offence because the messages require an expert witness to interpret their significance. I disagree. Other than "uni" there is very little left to the imagination in J….'s correspondence.
[77] On the basis of all of the evidence, when considered cumulatively, I have no reasonable doubt that HSD is J…., and HSD was a perpetrator of the break-in along with IA and the third man. This is the only reasonable conclusion that I can come to on the basis of all of the circumstantial evidence of identification, in totality.
[78] Though compelling in his address, I am not persuaded by counsel for HSD that the individual alternative explanations for each piece of circumstantial evidence raises even the slightest doubt about HSD's guilt. Contrary to the rule in Paul and Villaroman, I am being asked to consider individual links of evidence apart from the entire chain they inextricably form in support of unreasonable, hypothetical, alternative realities. I reject this piecemeal approach to the evidence and I am not left in a state of reasonable doubt on the issue of the identity of J…. as one of the two other perpetrators of the break-in with IA, when the evidence is assessed on the whole.
Jason Hamilton
[79] Counsel for JH made equally compelling submissions. He submitted that the co-conspirator's exception cannot apply as against JH because the prosecution cannot meet the probable membership hurdle on the basis of the admissible evidence. Counsel relies primarily upon the fact that there are only four messages of Logix 3 and at most they establish he was meeting the two others and they needed a set of wheels. Counsel submits that there is no actual evidence that JH ever went further than meeting J…. at Bayvillage. This begs the question of the presence of JH's DNA at the Vrga home, but counsel explained that evidence by suggesting it related to the attendance of Ms. Vrga's sister (Natasha Trlka) and her friend, Michelle Ellis, at the Vrga residence for a bar-b-que approximately six months before the break-in.
[80] Through counsel, JH submits that the fact that JH was in an on again, off again intimate relationship with Michelle Ellis around the time of the break-in is as useful as playing six degrees of separation from Kevin Bacon. I agree that the presence of Ms. Trlka at the Corkstone Glade home one week before the break-in is less than compelling evidence without any connection to JH, but the fact that he dated her friend, who had been at the Vrga home is a very small connection between JH and that home. The DNA strengthens the connection. The association of JH with IA and J…. leading up to the hour before the break-in, where JH's shoes are eventually found at the point of entry of the break-in, cannot be the product of mere coincidence.
[81] I have also considered that JH is the author of the text message "We are just driving by or checking it out" in a discussion with HSD during the afternoon of the day before the break-in. That same discussion refers to them going before 5 [pm] or after 8 [pm] and in terms of whether they were just going to drive by the place HSD wrote, "Depends on opportunity." These messages suggest JH is more than a mere supplier of the car to bring IA and HSD to the home. In fact, they suggest that JH would be included in committing the break-in that very night if the opportunity presented itself. Also, JH finishes this discussion with "I'd have to prep the car if that's the case we go in the morning like we said b4." This squarely commits JH to the same plan that IA and HSD had made. JH was as much a part of their plan as they were because he was providing his input in terms of the timing, the transportation, the preparation of the car, checking out the location, and picking up IA, who is referred to by HSD in these messages as "my boy."
[82] Counsel for JH also suggests that the statement by J…. three hours before the break-in "Fuck if I had a next wheels just the 2 of us could go" also suggests that JH was not a part of the plan beyond supplying a car for the other two men to commit the home invasion robbery. Respectfully, the statement proves the opposite. It presupposes that JH is as much a part of the plan as they are and but for their need for his car, he would easily have been cut out of this crime.
[83] Respectfully, counsel for JH asks this court to commit the same error as counsel for HSD: Do not add up all of the evidence, instead, look at how flimsy each separate piece of evidence is by itself. I completely agree with both counsel and their assessment of the strength (or lack thereof) of the various individual pieces of circumstantial evidence in this case. However, as a whole, the evidence is compelling. Again, if even one piece of the circumstantial chain were broken, the entire prosecution theory may, depending on the significance of that circumstance, fail.
[84] For instance, if the break-in only involved two men, I would accept the submission that there was no evidence that JH went any further than providing a vehicle to HSD and IA. That might still raise a question about JH's DNA, but given the strong inference that JH supplied the vehicle that was taken by the men to commit the break-in, if only two men had attended, the recovery of the shoes with JH's DNA at the scene would be consistent with HSD having borrowed JH's car and his shoes (perhaps unbeknownst to JH). But with 3 perpetrators seen by Mr. Vrga, the death of IA, and two different items with at least two different individual's DNA left at the scene, JH's loose connection to the Vrga home, and his direct efforts to manage the timing of the drive by the home the day before, I can only reach one conclusion: JH was a member of the conspiracy and the joint enterprise to break into the Vrga home.
[85] I should also note that once the co-conspirator's exception applies, all of the statements made by each probable member in furtherance of the objective of the conspiracy apply against every other conspirator. That means that all of HSD's and IA's messages "Waitin on word," "Kk fam lemme know lo says," "He said he ready from mon[day]," "So it's a tomorrow or friday ting" apply with equal force against JH. That means, he is as much a part of the entire conspiracy as IA and HSD, and not merely their car supplier.
[86] I have considered whether the evidence could lead to any other possible, reasonable inference besides the guilt of either defendant. Neither counsel have suggested one alternative theory that accounts for all of the various pieces of circumstantial evidence against their client. Again, they do not have to. However, when I consider whether there is any other reasonable inference other than guilt, in respect of each defendant separately, I am unable to find that there is, and accordingly, I am not left with any reasonable doubt that HSD communicated as J…. and JH communicated in the BBM messages as Logix 3 , and together with IA, they broke into Mr. and Mrs. Vrga's home just after midnight on 07 December 2012, while they were each armed with a weapon.
CONCLUSION
[87] For these reasons, I am satisfied on all of the evidence that both Haldane Smithen-Davis and Jason Hamilton are guilty of breaking and entering into the Vrga dwelling with the intent to commit an indictable offence.
Released: 02 March 2018
Justice G. Paul Renwick