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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: May 17, 2018

Court File No.: Brampton 3111 998 17 1079Y

Between:

Her Majesty the Queen

— and —

T.G. (a "young person" as meant by the Youth Criminal Justice Act, S.C. 2002, c. 1)

Before: Justice G.P. Renwick

Heard on: 14, 15, 16 May 2018

Reasons for Judgment released on: 17 May 2018

Counsel:

• A. DeGrace — counsel for the Crown
• R. Mann — for the defendant T.G.

RENWICK J.: (Orally)

INTRODUCTION

[1] The defendant is a young person charged with four counts arising out of a stabbing incident in a public school parking lot last summer. As it was late August, school was not in session, and only the parties directly involved were present. Fortunately, the young man that was stabbed in his left arm, appears to have made a full recovery, except for some on-going pain he sometimes experiences and the psychological stress this event has left upon him. To meet its onus, the prosecution relies exclusively upon the testimony of the complainant (R.D.), his good friend who was present and witnessed the event (A.P.), and the complainant's mother (G.D.), who witnessed some of the event and the aftermath as well.

[2] Except for the weapons dangerous count, which alleges that the defendant was a principal actor, the parties agree that I have to determine whether or not the prosecution has proven the defendant guilty beyond a reasonable doubt as a party to the offences committed by the adult who was charged separately. The basis for liability was agreed by the parties as falling within s. 21(1)(b) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended ("Code"). That means, I have to determine whether the defendant aided Yash Kanak to assault R.D. with a weapon and to commit the assault upon R.D., which caused him bodily harm. There was no dispute as between the parties that R.D. suffered a significant injury to his left arm from being stabbed in two places and he required several medical treatments to apply 18 stitches to close his wounds. To be clear, there was no argument made to suggest that I could find the defendant guilty pursuant to s. 21(1)(c) for abetting Kanak. The prosecution also seeks the court to consider whether the defendant is liable for these offences under the common purpose provision found in s. 21(2) of the Code.

[3] During submissions, Crown Counsel invited me to consider dismissing the mischief charge arising from the damage caused to R.D.'s cellular telephone on the basis of a dearth of evidence to support the defendant's liability, even as a party. This was a fair concession to make, and I am dismissing that count on the Information. Accordingly, these reasons relate to my decision to acquit the young person on the three remaining counts.

ISSUES

[4] Has the prosecution proven beyond a reasonable doubt that the defendant aided the adult to commit the offences, such that he is liable pursuant to s. 21(1)(b) of the Criminal Code; and

[5] Has the prosecution proven beyond a reasonable doubt that the defendant formed a common intention to carry out an unlawful purpose with the adult and the defendant knew or ought to have known that the assault with a weapon and assault causing bodily harm would be a probable consequence of carrying out the common purpose, such that he is liable pursuant to s. 21(2) of the Criminal Code?

DISCUSSION

[6] 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 offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the young person committed any of these remaining offences, he will be acquitted of these charges.

[7] 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.[^1] If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence(s) 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.

[8] I am aware that I can accept some, none, or all of what a witness says. Agreed facts, on the other hand, are accepted by the parties as proven. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant's testimony to greater scrutiny because of his role in the proceedings. That would be unfair and it would completely undermine the presumption of innocence, which does not shift from the defendant unless and until the prosecution has proven the charge beyond a reasonable doubt.

[9] Given that there are credibility issues at play in determining whether or not the prosecution has met its burden of proof, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D.,[^2] as applied by subsequent cases and explained by academic commentary:

i. I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.[^3]

[10] 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. I have access to my extensive notes and the digital audio recordings of the testimony heard during this trial.

THE EVIDENCE AND FINDINGS OF FACT

[11] R.D. was the first witness. He testified about what unfolded and how he sustained his injuries. I am mindful that he is a young person and he had to endure testifying in chief and a thorough cross-examination by a seasoned advocate. It is unrealistic to expect that he would testify like an adult or have a perfect recollection which he could meaningfully communicate without imperfection. Overall, accounting for his youth, I found R.D. to be believable, on first impression.

[12] Defence counsel pointed to an inconsistency in R.D.'s evidence and A.P.'s in terms of who arrived at the school parking lot first. In terms of the overall import of this evidence in the context of his testimony as a whole, this inconsistency is immaterial. Moreover, R.D. admitted that it was possible that he did not arrive before A.P., but he was "pretty sure" that he had.

[13] I did note an internal inconsistency with R.D.'s evidence. During his testimony in chief he initially testified that he took out his phone once he saw that the two individuals had weapons. He said he did this to "call someone." He repeated that phrase at another point as well. But later in his evidence, he testified that when he brought out his phone, he didn't even have an opportunity to call his Mother, G.D. The defendant testified that he heard R.D. say that he would call some people and they could fight behind the school. I accept the defendant's evidence on this point. This evidence detracts from R.D.'s credibility in respect of why he was bringing out his phone, who he intended to call, and what this incident was all about, but I will say more about the latter, momentarily.

[14] Respecting whether or not R.D. knew the adult, Yash Kanak, R.D. said in chief and during cross-examination that he did not know his aggressor. R.D. testified in cross-examination that he had never seen Kanak prior. However, when he was asked in cross-examination whether he had any "beef" with Kanak prior to the incident, strangely, R.D. answered, "not that I know of." And when he was pressed on a fight at the park in the month before the incident and the police coming to his home to investigate, R.D. became very evasive. It was clear at this point that he was not being truthful about not having known Kanak before the stabbing.

[15] As well, the result of R.D.'s evidence is that it suggests that this incident was a robbery that went wrong. However, he testified that the adult with the knife slashed his and A.P.'s bike tires once the incident began, to prevent them from leaving. In fact, after he was stabbed he says "they" took his phone.

[16] I have difficulty reconciling R.D.'s evidence of the apparent motive of the aggressors with the evidence of A.P. that this was an unprovoked invitation to fight. Even Ms. G.D.'s evidence supports the theory that this was a fight based on her observations of an initial struggle between her son and the male with the haircut. And, as I said earlier, the defendant's evidence supports the view that whatever the reason for the initial contact between Kanak and R.D., it was not random, it was not for a robbery as implied by R.D., and I find that it was likely the result of a prior confrontation between Kanak and R.D.

[17] When R.D. was confronted in cross-examination with a photograph taken from social media which depicts R.D. and A.P. and a group of males posing with various hand gestures while R.D. holds a long flashlight and A.P. is holding an extendable baton, he admitted that he and A.P. were in the photograph. R.D. offered no explanation for the purpose of carrying objects that could be used as weapons and the suspicious poses in the photograph.

[18] In terms of the Defendant's apparent role in the incident, R.D. said that the defendant held a baton, a "long black stick known as a taser baton". He said that he mentioned this taser baton to the police at the end of the incident, and he even described where it was thrown just prior to the police arrival. Interestingly, the defendant's evidence supports this part of R.D.'s testimony. However, R.D. testified in chief that the police found the black baton, yet there is no evidence that this ever occurred. In fact, to the contrary, the parties seem to agree that there was no such weapon or device ever recovered by the police who investigated this occurrence.

[19] In the end, for many reasons, I have trouble accepting large portions of R.D.'s evidence. I cannot decide how much or how little of his evidence is accurate and reliable and what portions are inaccurate, misleading, unreliable, or downright lies. It would be unsafe to found a conviction on R.D.'s evidence alone. Other than establishing his injury, I have difficulty making any factual determinations relying solely upon the evidence of R.D.

[20] A.P. testified after R.D. Again, I bear in mind his youth when considering the value of his testimony. I find that A.P.'s evidence was less compelling, and of even less value than R.D.'s for the reasons mentioned below.

[21] A.P. testified that these two unknown males appeared to want something from R.D. and they wanted to fight. I accept this evidence as truthful. He described the male now known to be Kanak as grabbing R.D.'s phone and grabbing R.D.'s sweater before pulling out his knife and stabbing R.D. A.P. described the defendant in a manner that was similar to R.D.'s description: the defendant was present, but he did not do much. According to A.P., the defendant did not say anything but he stood there holding the taser baton, which he activated 5 times.

[22] During cross-examination, A.P. seemed to be going in circles to explain why his statement to the police suggested he had arrived at the school first, but in court he confirmed R.D.'s evidence that R.D. arrived before him. While this discrepancy in the evidence is something that may have been easily forgotten by R.D., who was seriously injured on 22 August 2017, I find that it was a purposeful attempt on A.P.'s part to mislead the court and bolster R.D.'s evidence. Also, in cross examination, for the first time A.P. indicated that the defendant grabbed him by the front of his shirt. I found this evidence incredible, it was not supported by R.D.'s account, and I reject it as untrue.

[23] The witness was also cross examined on the photograph which became exhibit 1. A.P. admitted that he held a collapsible baton in the photo. When, at the conclusion of his testimony, and with the consent of counsel, the court asked the witness whether he was the author of the comment below the photograph, "Putting work on the opp block" and what that meant, he confirmed he wrote that, but he said it was just a joke. Again, I do not accept this evidence as truthful. I find that the photograph was taken to create an appearance of solidarity and aggression. Each youth is posing in a particular manner, almost everyone, except R.D., is making a hand sign, nobody is smiling, several males have their arms around others and the clear impression is one of intimidation and force. To be clear, I have not used this exhibit in any way to make factual findings concerning the matter at bar, but I have used this photograph to assess the credibility of A.P.

[24] The final Crown witness was G.D., the mother of R.D. She was also not entirely helpful as a witness, but not because she was not worthy of belief. Rather, her evidence suffers from a lack of precision which I attribute to the trauma she experienced as a result of finding her teenage son bleeding profusely from an apparently random attack moments after he had left home to play with his friends outside.

[25] During Cross examination, G.D. admitted that she had not told the police that the defendant had pushed her that day, something which she said in her examination in chief, for the first time. Her explanation for this apparent discrepancy was that it was not asked of her during her brief 10-minute video statement. She also testified that she was "nervous" when she saw her son bleeding. I find that this was extremely traumatic for G.D. and I have taken this into account in assessing the witness' reliability and credibility. Overall, while I find that G.D. wanted to assist the court, I cannot place much weight on her shifting and inexact evidence.

[26] In the end, I am not satisfied beyond a reasonable doubt on the evidence adduced by the prosecution that the defendant aided Kanak to assault R.D. with a knife, which also caused R.D. significant bodily harm.

[27] I find that it is unnecessary to make any factual findings in respect of the defendant's testimony because the prosecution's evidence is too weak to found a conviction. I am especially troubled by the lack of any forensic or other corroborating evidence in this case. None of the attending police officers testified in this trial. Moreover, there were no photographs of the scene, of the damage, if any to R.D. and A.P.'s bicycles, and apparently, there was no black taser baton either seen or recovered by the police. So, despite the defendant's testimony that the "black stick" actually existed, and I do not know if he is talking about the taser baton when he says this, I am in complete doubt about whether or not there was a black baton taser and I have ample doubt that he possessed such an item. On this basis I cannot convict the defendant on the weapons dangerous count.

[28] Had the baton been produced to the court, it may have provided some corroboration of the prosecution's theory and the crown witnesses' testimony. Furthermore, if I had been satisfied beyond a reasonable doubt that the defendant had possessed a black baton, I most certainly would have concluded that it was possessed for a purpose that was dangerous to the public that day. That evidence would have likely satisfied me of a common intention to threaten or cause physical harm to R.D. in retaliation for a prior grievance with Kanak or his family and it may well have satisfied me of the guilt of the defendant of the substantive weapons offences.

[29] To be sure, I was not entirely satisfied by the evidence of the defendant. He testified in a rather mechanistic fashion with a flat affect. He was not believable when he could not say how R.D. was stabbed and he did not offer any reason for his inability to describe this. Overall, he was less than credible as a witness, but it matters not.

CONCLUSION

[30] On all of the evidence taken during the trial, I am not satisfied that the prosecution has proven the charges beyond a reasonable doubt. I must give the benefit of that doubt to the defendant. As a result, all charges as against T.G. are dismissed.

Released: 17 May 2018

Justice G. Paul Renwick

[^1]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^2]: R. v. W.D., [1991] S.C.J. No. 26.

[^3]: The Honourable Mr. Justice David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) And Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.