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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: October 9, 2018

Court File No.: Belleville Y170149-00

Between:

Her Majesty the Queen

— and —

T.B., a young person

Before: Justice W. Malcolm

Heard on: August 24, 2018 and October 1, 2018

Reasons for Judgment released on: October 9, 2018

Counsel:

Mr. Paul Layefsky — counsel for the Crown

Ms. Monica Rodrigues — counsel for the young person

Reasons for Judgment

Malcolm J.:

The Charge

[1] The young person is charged with the theft of a dirt bike owned by Mr. B. pursuant to section 334(b) of the Criminal Code.

The Facts

[2] The dirt bike was taken without consent from Mr. B.'s property on the Mohawk Bay of Quinte (MBQ) Territory on or about September 26, 2017 and was found several days later. The recovered bike was severely damaged with plastic removed from the gas tank and side panels; the shock and springs were damaged; and the ignition was punched with a screw driver replacing the key. The bike had a value of about $2,000.00 when it was stolen and much less after it was recovered.

[3] S.M., a fifteen year-old youth from the Territory, had the bike in his possession prior to its recovery.

[4] The Crown witnesses were S.M. and T.M., his grandmother; a neighbour youth M.P.; E.C. an adult neighbour of Mr. B. (by her written statement) and Officer Maracle. The accused young person was the only defence witness.

[5] There is no direct evidence that T.B. stole the bike. However, S.M., T.M. and M.P. testified that the young person said that he gave the bike to S.M. The investigating officer, Officer Maracle interviewed and took statements from several witnesses but did not interview the accused. The accused young person testified and denied the theft of or the possession of the bike.

Crown's Evidence

S.M.'s Testimony

[6] S.M. was a friend of the accused. He testified that at the time of the theft of the dirt bike he was attending, sporadically, an education program on the Territory. He said he does not walk to school as it's too far.

[7] On the day before he came into possession of the stolen bike, S.M. described his ATV as having "blown up". Coincidentally, he received a Facebook message or post from the accused young person that he had a bike to give away, at exactly the same time as he was in need of new transportation. When cross examined about the Facebook message, S.M. said that he didn't have the same phone and could not retrieve the message. He also admitted that he didn't tell the investigating officer about the Facebook message. He said the officer didn't ask him about it so he didn't volunteer the information. I take judicial notice that Facebook messages can be received from other devices. I did not believe S.M.'s testimony and I find that the reason he did not tell the officer about a Facebook message was that none was sent.

[8] S.M. testified that he went to a friend's home, where he knew the bike would be found. He said he just knew the bike would be there. He said he looked at the bike and it seemed good. He jumped on the bike and started it by kick start and started to drive around. He said only he and his friend, N.C. were there. He denied seeing his friends' mother E.C. there and denied ever speaking with her about the bike. He didn't ask anyone for permission to drive the bike. He said he drove it everywhere for several days on the MBQ Territory until it blew up because it was too small for him.

[9] E.C. gave a statement to the police. She said that S.M. rode the dirt bike in question into her yard on September 26 or 27th during the day. He pulled it behind her porch and she found this strange as normally you'd park in front of the house. She recognized the stolen bike as belonging to her neighbour and asked S.M. if it was Mr. B.'s bike. She described S.M. as having a "stupid little grin on his face" when he answered no to her question. He told her the bike came from Deseronto and she called him a liar. This evidence contradicts the other Crown witnesses who said the young person said he gave the bike to S.M.

[10] Later that night, S.M. said he drove the bike home and parked it at the side of the home where he lives with his grandmother, T.M.

T.M.'s Testimony

[11] His grandmother, T.M. testified that she came outside that night when she heard the noise of the bike. She questioned her grandson about the bike. She was very surprised to see him riding the dirt bike because she didn't even know that her grandson could ride a motor bike. She told the investigating officer that at first her grandson didn't want to answer her about where he got the bike. Then she said that S.M. told her that the accused young person gave him the bike. She said the accused confirmed that he gave S.M. the bike. She replied "really?" in a way that I infer she did not believe him.

[12] She also testified that the accused young person was very convincing when he said he gave the bike to S.M. This is inconsistent with her comment to them of "really", which suggests she was sceptical as to how the bike was obtained.

[13] T.M. testified that her grandson had no reason to lie about his possession of the bike because all he had to do was to go to school and his grandfather would buy him a new bike. However, she also said that her grandson rarely went to school. She also confirmed that the day before he came into possession of the stolen bike, his own ATV had blown up. S.M., when cross examined about his grandmother's discipline, said he pretty well did what he wanted. I find he was a youth who did not want to go to school and therefore unlikely to obtain a free bike from his grandfather.

[14] S.M. says the day after he got the bike at N.C.'s house, he couldn't get it started and the accused young person helped him start it.

[15] In cross examination, S.M. said that he had been offered other free bikes before so it wasn't surprising that he received this bike from T.B. He said to defence counsel that it is not strange to get a free bike on the MBQ Territory. He commented that counsel looked like she wasn't from the Territory implying that if she was, she would know about the proliferation of free dirt bikes there. He said when he had received free bikes before, nothing happened. I assume he means there was no consequence or police involvement. When he describes them as free they might better be described as liberated.

[16] When pressed about why he didn't ask more questions to T.B. about the legal ownership of the bike, he claimed in a sarcastic way that he was only 15 and not smart enough to know about those sorts of things. He was very defensive when cross examined, refusing to answer questions and demanding to speak with his defence lawyer before proceeding. I find that he was evasive and not credible.

[17] S.M. indignantly proclaimed to defence counsel that the accused had given an inculpatory statement to police, that everyone knew that he was responsible for the theft of the bike and insisted that T.B.'s statement be played for the Court. However, the accused young person had not given any statement to the police nor had he been asked to do so.

[18] S.M. admitted that he had raised the bike up because it was too short for him. He denied taking the plastic off of it or damaging the ignition. He had given a statement to the police shortly after the theft in which he did admit taking off the plastic too but in his testimony, claimed not to remember making that admission. He also did not recall telling the police that there was a screwdriver in the ignition. In cross-examination, he said that he meant that it looked like there had been a screw driver in the ignition and asked counsel to stop asking him questions. Again, S.M.'s testimony was quite self-serving and given the internal inconsistencies in his own evidence at trial or between statements given to the officer and his testimony at trial it is difficult to accept his evidence.

[19] The evidence of S.M. is problematic for many reasons. He has a motive to lie or fabricate. The bike broke down while being ridden by him. He made modifications to the bike that may be seen as trying to change the appearance, such as removing the plastic. He claims to have taken the bike because of a Facebook message that he cannot produce, nor was the police officer advised of its existence. He told one neighbour he received the bike from Deseronto and told his mother and another friend that the accused young person gave him the bike.

T.M.'s Credibility Issues

[20] The grandmother's testimony corroborates her grandson's statement that the accused admitted to giving the bike to S.M. She says that she always tells the truth to "her" officers and they have been to her home many times before for fights and other conflicts. However, she also said the police have been there so many times that she couldn't remember what was said every time.

[21] She said she had no reason to ask her grandson about the theft of the bike. She accepted what T.B. and her grandson told her. This is despite her saying "really" to T.B. when he said he gave the bike to S.M. She said that she had taken T.B. into her home before when he was having family problems. She said she had no reason to ask where the bike came from. She said she assumed T.B. got a new bike because the bike in questions was not operating well. This is not consistent with a young person who is sometimes without family support to the point that he is living with school friends and the charity of others.

[22] T.M. told the officer that the accused young person only said he gave the bike to S.M. after the grandmother was questioning S.M. about how he got the bike and S.M. said T.B. gave it to him. Then T.B. concurred with what his friend told his grandmother.

[23] Further, T.M.'s recollection of the events has some frailties. She insisted that there were three boys in her yard the night the bike was stolen, yet she told the officer there were only the accused and her grandson present. She was extremely upset when cross examined about her inconsistent statements and proclaimed that she never lies. When she listened to her statement to the police, wherein she described only two boys she could not explain the inconsistency.

[24] Her grandson said that he left the bike out in front of the home and T.M. said it was hidden under the porch.

[25] She didn't recall Officer Maracle meeting with her before she gave her recorded statement and she denied asking her grandson to go to the police. She said her grandson was home when the officer came, but not well. S.M. said he was not home when the officer came but when he returned home, his grandmother told him he had been there. T.M. denied asking her grandson whether he stole the bike yet S.M. testified that she asked him constantly on the way to the station.

[26] In cross examination, T.M. became indignant and said that her grandson was not a liar and he would "do the time if he did the crime". However, T.M. testified that her 15 year old grandson was facing a number of driving offences including: driving without a licence, police chase, dangerous operation and other offences. I find that the grandmother's testimony does not convince me that T.B. stole or was in possession of the motor bike knowing it was stolen. Even if the accused did admit to giving the bike to S.M. his motive to tell T.M. may have been to protect his friend from the wrath of the grandmother.

M.P.'s Testimony

[27] Another young person, M.P., testified about the stolen dirt bike. His testimony is problematic for a number of reasons. His testimony was interrupted by his caregiver, who wanted to give an explanation to the Court about inconsistencies in his testimony. Instead, the Crown questioned the young person who indicated that he had a learning disability and has difficulties, which caused him to learn a lot slower than other people. I found the witness to have some cognitive challenges although he appeared to be a very pleasant young person.

[28] M.P. described going to a private school but I am aware that it is a children's treatment home. He indicated he has been in the care of the treatment home and sometimes in the care of his grandmother.

[29] He testified that on the morning of approximately September 27, 2017 he saw S.M. in his yard trying to start a motorbike. He also described seeing the motorbike being altered by S.M. by the removal of plastic from it.

[30] He said that S.M. had difficulty starting the bike and the accused was called to assist him and then S.M. took off to school on the bike.

[31] He did not testify about being at N.C's house on the day before. However, he had given a statement to the police that he had been at N.C.'s house and had heard the accused young person say he was giving the bike to S.M. in repayment of a debt. This is contested by S.M., who claims that there was no such debt and M.P. was not at N.C.'s home in any event.

[32] M.P. in his written statement had told Officer Maracle that he walked back from N.C.'s house with his friend S.M. who was pushing the bike alongside of him. However, when he testified he said that he walked alone from N.C.'s home to his own home because his grandmother was calling him to return as he was out past his curfew.

Analysis of Crown's Evidence

[33] There are numerous inconsistencies in the evidence of the Crown witnesses and I cannot reconcile them with each other. However I find that the dirt bike was stolen. It was found in the possession of S.M., who did some modifications to it. E.C., who I find to be an independent witness, recognized the bike being ridden by S.M. as a stolen bike. His explanation to her as to how he came into possession of the bike did not involve T.B.

Legal Framework

[34] The Court must consider in its decision the often quoted test in R v. W. (D), [1991] 1 S.C.R., and that the Crown always has the onus of proving its case beyond a reasonable doubt.

[35] If I believe the evidence of the accused young person I must acquit.

Defence Evidence

[36] The accused young person testified and was straightforward in his evidence. He gave a blanket denial of stealing the motorbike or of giving it to his friend. He was unshaken in cross-examination. He has no criminal record.

Application of the Law

[37] However, even if I don't believe the testimony of the young person, if I am left in reasonable doubt, I must acquit.

[38] Further, even if I'm not left in doubt by the evidence of the accused, I must consider whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[39] There are so many inconsistencies in the testimony of the Crown witnesses that I cannot accept that T.B. stole the motor bike or as the Crown suggests that he had possession of it. S.M. has motive to implicate the accused in the theft or possession of the motorbike. The evidence of the other witnesses has material inconsistencies. It would be dangerous and not consistent with the evidence that I have accepted to convict the young person.

Verdict

[40] I find that the young person is not guilty of the charge of theft of the motorbike or the lesser and included offence of possession.

[41] Thank you to Crown counsel and defence counsel.

Released: October 9, 2018

Signed: Justice W. Malcolm