R. v. Horton; R. v. MacNeil
Ontario Court of Justice
Date: March 20, 2020
Court File No.: Municipality of Scarborough 19-35004602
Parties
Between:
Her Majesty the Queen
— AND —
Lorne Eric Horton
— AND —
Danielle MacNeil
Before the Court
Justice K. Caldwell
Heard on: September 23, 25, 26, October 1, 2019; January 2-3, 24, 2020
Reasons for Judgment released on: March 20, 2020
Counsel
- Mr. Paul Kelly — counsel for the Crown
- Ms. Alison Craig — counsel for the accused Mr. Horton
- Mr. Toomas Oonapuu — counsel for the accused Ms. MacNeil
K. CALDWELL J.:
Introduction
[1] Mr. Horton and Ms. MacNeil are jointly charged with numerous offences involving a gunpoint robbery at a Husky truck stop on Highway 401 near London, Ontario and a subsequent stabbing the owner of a car wash near Warden Avenue in the Scarborough area of Toronto. Mr. Horton also is charged alone with additional offences relating to these two incidents.
Summary of the Evidence
Ms. Michelle Deeks
[2] Ms. Deeks was working the overnight shift at the Husky station on January 13-14, 2019. She remembered that it was an extremely cold night thus not many people were out.
[3] Just before midnight, a young woman, mid-twenties in age, entered the convenience store portion where Ms. Deeks was located. The young woman was wearing a red coat with a collar that flaps back into a V neck and appeared to have no clothing on underneath it. She was white, maybe 5'3" or 5'4", with brown slightly curly hair that was pulled back and possibly pulled up. She wandered about for a bit, made a coffee, paid, and left.
[4] Ms. Deeks testified that it was unusual for a young woman to come into that gas station, and even more unusual on a bitterly cold night as only those who needed to travel were out on the roads. She had arrived in a small red car and she parked the car away from the building in a back corner which was also unusual. The car was left running with the lights on, again unusual. The young woman got into the driver's side of the car and it remained there for four or five minutes.
[5] Four other men came in over the next fifteen minutes. Two came in hoping the restaurant was open, and two others were retail customers, including one man that she knew. Another man then entered wearing a mask with one eyehole area, a hoodie, and a dark jacket with black wool gloves. He was 5'2" or 5'3", maybe 125 pounds, slim build, with shoulder length dirty blonde hair. He had dark jogging pants with light coloured writing down the right side and white high-top runners with light blue markings.
[6] The man slunk over the counter, pointed a gun at her and said, "give me all the cash". It was a black handgun, slender, with a rectangular barrel. He told her not to press any buttons. She put the cash in a white plastic shopping bag, giving it to him. It included bills, and multiple rolls of coins including "toonies".
[7] He also asked for her health card which he had trouble picking up from the counter given the gloves. As he was leaving, he told her not to call the cops for 20 minutes as he knew where he lived and he'd come to her house and start shooting.
[8] As soon as he left, she called to her partner who was in the back of the store, yelling "we've been robbed!". Through the plate glass windows she watched the man run across the parking lot and follow the pavement down a laneway, disappearing.
Mr. Dat Nguyen
[9] Mr. Nguyen worked for Mr. Abbas Kamali, one of the complainants in this case, at Mr. Kamali's car wash. Ms. MacNeil and Mr. Horton also worked for Mr. Kamali so he knew them well. Around 8:30/9:00 pm on January 14, 2019, he was at the bus stop on Warden Road near the car wash. He saw a dark or black Honda Civic drive by with two occupants. The one in the passenger seat was wearing a black mask with two separate eyeholes and had a 2 ½ foot long black gun which was held upright and across the chest area.
[10] A few seconds later, he looked towards the car wash and saw Mr. Kamali's Mini Cooper drive up very fast, almost hitting the Honda Civic. Mr. Kamali exited the car; he and the man with the mask began pushing each other. He also heard shots though he didn't see the gun at that point. He then ran south one block, and called 911.
[11] He described Mr. Horton's hair as long, blonde, and usually tied in a bun.
Ms. Alma Zoto
[12] Ms. Zoto is Mr. Kamali's partner. They live next door to the car wash, essentially attached to it. Around 8 pm, just after the car wash closed, she heard a female voice at the door stating, "open the door, it is the police". She also heard a second voice, a very wild voice, saying "bitch!" and other words. She didn't recognize the voices. She was scared, and knew it was not the police. The glass door to their place was broken shortly after that. She saw both people but one and possibly both were masked. She saw them run away towards a Chinese noodle factory nearby. They were wearing dark blue or black clothing.
[13] Ms. Zoto locked all the doors and called Mr. Kamali on his cell phone. She agreed that she told Mr. Kamali that it might be "Tony" trying to break in. Tony was another employee and they had had issues with Tony in the past regarding money. Mr. Kamali was at the Rona store nearby and said he'd be over shortly. She believed he arrived around 8:26 pm. She also saw Mr. Horton's and Ms. MacNeil's dark blue car. She next saw him running and falling down, saying repeatedly "I'm going to die, I'm going to die". He also said, "it was Eric and Danielle, call the police, call the police". He thought he was going to die so he asked her to call his children so that he could talk to them.
[14] She knew both Mr. Horton and Ms. MacNeil well. They worked for Mr. Kamali, and they kept their car in the car wash, sleeping inside it. At times Ms. Zoto would ask Ms. MacNeil to sleep inside the Zoto/Kamali home as Ms. Zoto felt badly for Ms. MacNeil and she didn't feel that a woman should sleep in a car.
[15] She also said that Mr. Nguyen was living with her and Mr. Kamali at this time but none of them spoke about the incident afterwards. She felt that Mr. Nguyen was quite fearful so she avoided the topic.
Mr. Abbas Kamali
[16] Mr. Kamali testified that Mr. Horton and Ms. MacNeil worked for him during the two-month busy period before Christmas. Both were hard workers though Ms. MacNeil worked more frequently as Mr. Horton had some medical issues. They had a dark blue Honda rental car, and they slept in the car in the car wash for a two-week period. Mr. Kamali believed they were from Nova Scotia and that they had children back home. They had stopped working for him about three weeks prior to this incident but they had stayed in touch and they had asked him if they could have work if they returned as they wanted to make money to head back home. He was unable to rehire them.
[17] He said that his business is 80-90% cash. He assumed that Mr. Horton and Ms. MacNeil would guess that he kept the money in his residence.
[18] He thought that Tony was the probable perpetrator because he had had issues with Tony in the past regarding stealing money from people's cars. When he got the call from Ms. Zoto, he rushed to the car wash and saw a grey or light blue car. He saw a black person inside and assumed it was Tony. He stopped his car four to five metres away from the Honda and denied almost hitting it. He had a knife with him for his own protection but when he saw that the occupants were Mr. Horton and Ms. MacNeil, he threw the knife back in the car as he said that they are like his children. The lights were off in the car but he was 100% positive it was Ms. MacNeil in the driver's seat. She put the car into reverse and stepped on the gas but ended up backing up into another car.
[19] Mr. Kamali then walked over to the car and at that point he saw the gun in the passenger's hands. The passenger was masked and holding the gun between his legs. He thought he should run but he also thought that everything would be fine as he knew he treated Mr. Horton and Ms. MacNeil well.
[20] The masked man got out of the car and hit Mr. Kamali with the shotgun. He managed to yank the mask off the man and saw that it was Mr. Horton. He was shocked. Mr. Horton then grabbed a knife and began punching Mr. Kamali. He was also stabbed, five times in the head area and twelve times in the throat. In the end, he required seven stitches to his neck just below his left ear. Mr. Horton and Ms. MacNeil fled the scene, and Ms. Zoto rushed over to help him. He thought he was going to die so he managed to talk to the mother of his children before help arrived.
[21] He vigorously denied that he was angry, that he rushed up to Mr. Horton and Ms. MacNeil with the knife and that he then got cut in a struggle over the knife.
Video Footage of the Econolodge in London, Ontario
[22] The incident at the Husky gas bar occurred around 2 a.m. on January 14th, 2019. Footage was seized from an Econolodge 16 km away in London, Ontario. It is conceded that Mr. Horton and Ms. MacNeil were the individuals stopped in the Econolodge's parking lot around 11:30 a.m. by the London police as shown in the footage. The car they were standing near was a dark Honda Civic with the same license plate as the car in which they were taken down in Toronto later that night.
Video Footage of the Husky Gas Station/Convenience Store
[23] Very good quality video footage was seized from the Husky convenience store showing both the full hold-up and the entry of a young woman about fifteen minutes prior. I will deal with that footage in more detail further on in my analysis.
Detective Constable Kristophen Lovo and Detective Constable Ito
[24] D/C Lovo became involved in this matter around 9:15 p.m. on January 14th. He and his team were looking for a black Honda Civic with Nova Scotia plates reading GHD 703 in the area of Ridgemoor Avenue and Kingston Road. He saw a black Honda Civic reversing in a Shopper's Drug Mart parking lot but he couldn't get a good look at the plates though he saw that they were from Nova Scotia. He followed the car to Kingston Road and Guildwood Parkway where the car was taken down at 9:30 p.m. at gunpoint. That location is less than a five-minute drive from the car wash. He didn't lose sight of the car from the time it left the Shoppers parking lot to the time takedown was called. He didn't see anyone exit the car in that time.
[25] D/C Ito was also part of the takedown. He testified that Ms. MacNeil was in the driver's seat and Mr. Horton was in the passenger seat. No one else was in the car.
The Photos
[26] D/C Jeffrey Johnston took photos of the interior of the Honda. The plates matched those on the car that the officers had been seeking. The items included in plain view in the back seat area: a long replica black rifle, a long red down filled coat with a fur collar, a pair of dark grey pants with the word HOLLISTER written along the entirety of the left leg and CALIFORNIA written along the entirety of the right leg, and a black balaclava with one eyehole and a thin blue/black string attaching the middle parts of the eyehole.
[27] In the flip-up compartment between the two front seats an assortment of change was located including 23 nickels, 30 dimes, 7 quarters and 14 "toonies". A further nine "toonies" were found in the pocket of the long red coat with the fur trim.
[28] In the front passenger seat area, a pair of brilliant blue and white runners with a very large Nike logo on the back blue area and front white area was located along with a pair of black fleece gloves with white writing on labels near the wrist area. In the glove compartment in front of that was a replica black square-barrelled Glock pistol.
[29] It was agreed that the following were not found: a health card in Ms. Deeks' name, any bills in excess of $30 total, coin rollers and a light blue sweater.
Analysis and Factual Findings
The London Robbery
[30] The London robbery case against both Mr. Horton and Ms. MacNeil is absolutely overwhelming. I will deal first with Mr. Horton and then move to Ms. MacNeil.
Mr. Horton
[31] There is no question that the Husky convenience store and, specifically, Ms. Michelle Deeks, were robbed. The issue is whether Mr. Horton was the one who did it.
[32] The video footage, Mr. Horton's presence that day in London, Ontario, and the items seized from Mr. Horton's car make out an extremely strong case for the Crown.
[33] Mr. Horton was in London on the day of the robbery. It is a city to which he has no apparent ties. He was in a car with Nova Scotia plates, and he had told Mr. Kamali and Ms. Zoto, his previous employers, that he was here recently from the east coast. Further, he is found back in Toronto that evening.
[34] The car in which he was arrested was the same as that seen in the parking lot of the Econolodge in London. All of the evidence of both the robbery in London and the attempted break in/stabbing in Toronto point to two people acting alone. The information they gave Ms. Zoto and Mr. Kamali about their backgrounds, their arrival in Toronto, and just their day-to-day activities demonstrate that Mr. Horton and Ms. MacNeil were a solitary couple without associates or a social circle in Toronto. I find as a fact that they were the only two individuals who had access to the black Honda Civic on the date in question.
[35] The video footage of the hold-up is extremely clear. The height, build, and skin colouring of the masked man conducting the hold-up appears to be similar to that of Mr. Horton.
[36] Most significantly, and what makes this case overwhelming, are the items found in the car. The following items match or are extremely similar to those worn by the man on video:
The black fleece gloves. The ones worn by the masked man are the same colour, appear to be of the same material, and have white writing at the same location on the wrists;
The grey track pants with HOLLISTER written down the side. The masked man's pants are the same shade of grey, with writing down the side of each leg that matches the size and colour of the writing on the pants found in the car;
The shoes. The shoes found in the car are white with a deep sky blue, and black Nike symbols on the side and toe. The shoes seen on video have white colouring in exactly the same place, blue colouring in exactly the same place, and the black Nike symbol in exactly the same place;
The gun. The gun found in the glove compartment of the car is the same colour, size and shape (square barrel) as that used by the masked man;
The balaclava. There were two balaclavas found in the car. One is somewhat unusual with a single eyehole cut out but it is held together in the middle, loosely forming two eyeholes, by a thin dark string. The masked man was wearing a black balaclava with one eyehole and a thin dark string of the same size and in the same location as that found on the one in the car.
[37] Further, the car contained a large quantity of change albeit not the same quantity that was stolen from the store.
[38] I realize that not every item seized in the robbery was found in the car. There wasn't a health card in Ms. Deeks' name, nor coin rollers, nor a white plastic bag with the Husky name on the side. Proof beyond a reasonable doubt does not require, however, that every item taken in a robbery be found in possession of the accused party. I have considered the absence of these items and still find that I am convinced beyond a reasonable doubt that Mr. Horton was the masked man given the evidence that I do accept which I have outlined above.
[39] Finally, I note that finding one item that fit the items worn by the masked man would be insufficient for guilt. It is the high volume of items found in this case, and their unusual nature – I find I can take judicial notice of the fact that most people do not drive cars containing both balaclavas and handguns – that make the case overwhelming. I find as facts that the gloves, track pants, shoes, gun and balaclava are the same as the ones seen on video.
[40] I also accept as a fact that the masked man, whom I find to be Mr. Horton, also threatened to come to Ms. Deeks' house and start shooting if she immediately called the police.
[41] I therefore find Mr. Horton guilty of all charges pertaining to the London robbery – counts 3, 4, 6 and 8.
Ms. MacNeil
[42] I also find the case very strong regarding Ms. MacNeil.
[43] Approximately fifteen minutes before the robbery, a young woman is seen on video entering the store and buying a coffee. The coat worn by the young woman matches the coat found in the black Honda Civic upon arrest. The colour, material, size of the down-filled fabric squares, colour of the fake fur trim on the hood, even the placement of the zippers – one on the upper right, one on each side lower down, none on the upper left – match the coat seized from the car. I find as a fact that it is one and the same coat.
[44] Further, I find as a fact that the woman on the video is Ms. MacNeil, applying the principles in R. v. Nikolovski. The video footage is very good quality. The woman on video is seen close up and facing the camera. The hair and the facial features are identical. It is the same person.
[45] I find as a fact that Ms. MacNeil entered the store fifteen minutes prior to the robbery in order to assess the situation. I also find as a fact that she drove the getaway car that allowed Mr. Horton to flee the scene before the subsequent arrival of the police.
[46] I make these findings based upon the following evidence:
Ms. MacNeil's entry into the store was contemporaneous to the time of the robbery. Fifteen minutes is a relatively short period of time;
She parked her car some distance from the store. This fact would not be significant if the weather was warm, the store was crowded and it was daylight. Ms. Deeks, however, testified that it was an unusually frigid night. As she put it, only those who needed to be out were out. She took note of Ms. MacNeil for three reasons: first, she appeared to have no clothes on under her jacket. I find as a fact that she may or may not have been dressed but certainly the jacket was unzipped significantly showing only bare skin. Secondly, it is unusual to have a young woman enter at midnight what is essentially a truck stop. Thirdly, the weather;
It is reasonable to infer, when combined with the other evidence in this case, that Ms. MacNeil parked to avoid detection. Dressed as she was, given the emptiness of the parking areas, and given the extreme cold, parking quite close to the store would have been the most logical position otherwise;
All of the items associated with the robbery which I have listed above were out in plain view in the car or at minimum easily discoverable. I find as a fact that Ms. MacNeil was fully aware of their presence in the car;
Finally, I draw the logical inference that Ms. MacNeil drove the car that was required to allow Mr. Horton to flee. Throughout the twenty-four hour period during which the car was seen by various people, Ms. MacNeil was the only driver or it was reasonable to infer she was the driver as Mr. Horton was in the passenger seat. Ms. Deeks testified that the remote location of the gas station, essentially in the middle of nowhere on Highway 401, would have required access by car. Mr. Horton isn't seen to pull up in a car. Ms. MacNeil was seen entering and exiting a car.
[47] I have considered Ms. Deeks' evidence that Ms. MacNeil's car was a small red car. I find as a fact that she simply got the colour wrong. I make that finding considering that it was dark outside albeit the parking area was well lit. Most significantly, I note that Ms. Deeks had no idea of the significance of the car when she was looking at it. She noticed Ms. MacNeil for the reasons I have outlined but she had no reason at that point in time to know that she was about to be robbed. Noting precise car colour would not be top of mind.
[48] I find that Ms. MacNeil was a knowing and active participant in the robbery of Ms. Deeks and thus I find her guilty of the robbery charge – count #6.
The Toronto Incidents
[49] It is conceded that a person or persons attempted to enter Ms. Zoto's and Mr. Kamali's home. It is also conceded that Mr. Kamali was stabbed and that the wound would constitute an aggravated assault. The issues are (1) who tried to break into the home (2) the purpose of the attempted break in and of the altercation with Mr. Kamali and (3) how Mr. Kamali's wound occurred.
Mr. Horton and the Attempted Break-In
[50] I find as a fact that Mr. Horton was one of the two people that tried to break down the door to the Zoto/Kamali home.
[51] The evidence regarding the break-in is circumstantial. Two people are seen on video running from a small dark car towards the Zoto/Kamali home. They are seen running back to the car shortly after though where the car went cannot be determined as it is simply seen going off-screen. Ms. Zoto couldn't identify the voices of the people nor could she see them clearly. She said one and possibly both were masked.
[52] I accept her evidence on these points. The damage outside the door corroborates her description of the break-in attempt. The video footage showing two people running towards the home and then two people running away and immediately driving off in a car also corroborates her evidence.
[53] I also accept as a fact Mr. Nguyen's evidence that he saw a car driving along Warden Avenue with a masked person holding a rifle type gun in the front seat. I accept as a fact that the altercation with Mr. Kamali occurred very shortly after the car drove by. Mr. Nguyen gave his evidence in a clear, coherent manner. It made logical sense. He knew all of the parties involved in this case but there is no suggestion that his ties with any particular individual were such that he would be driven to fabricate his evidence. His evidence also makes logical sense when considered in the context of the other evidence in this case.
[54] It is admitted that Mr. Horton was seated in the Honda Civic when Mr. Kamali drove up and that he got into an altercation with Mr. Kamali. Roughly an hour later, his car was taken down by the police and found with an imitation rifle, and two ski masks or balaclavas. The altercation with Mr. Kamali occurred roughly five minutes after the two individuals were seen getting into the dark car after the attempted break in.
[55] It was argued by counsel that this is a case of mere coincidence – two individuals, at least one wearing a mask, attempted to break down a door with a forceful object and then sped away in a small dark car roughly five minutes before two individuals – Mr. Horton and Ms. MacNeil – were acknowledged to be in a small dark car next to the home with a rifle and two black balaclavas in the car. Further, one of those individuals was seen by Mr. Nguyen seated in the passenger seat wearing one of those balaclavas and holding a rifle. It is argued, however that the first two individuals were not the same as the second two individuals.
[56] One argument made in support of this proposition is that the car was seen speeding away after the break-in while Mr. Nguyen testified to the Horton/MacNeil car arriving shortly after the break-in. I note, however, that the footage showing the car speeding away is very limited – it simply speeds off screen. Where it goes after that is totally unknown and it would be entirely possible for the car to re-enter the premises at another point. Further, it would make logical sense that this would happen as the attempted break-in was just that, an unsuccessful attempt. Regardless of motive, it clearly wasn't accomplished.
[57] I also find that it defies all common sense to conclude that the small dark car speeding away with the masked individual or individuals is different than the small dark car seen minutes later on the same premises, also with two occupants and a masked individual. I mean no disrespect to counsel when I fully reject this submission – I appreciate that counsel must work with what they have.
[58] I make no finding regarding whether Ms. MacNeil was masked at the time of the attempted break-in and I find it unnecessary to make such a finding as she faces no charge related to that possible act.
[59] I do, however, find as a fact that Mr. Horton was masked and that the rifle was used to smash the window. I make that finding based on the evidence I have already accepted, particularly the evidence of Mr. Nguyen regarding the masked man holding a rifle seen in the passenger seat of the Honda Civic minutes after this incident.
[60] I am left uncertain, however, about the specific reason for the break-in. I appreciate that the timing was shortly after the car wash closing. As Mr. Horton used to work for Mr. Kamali, it is possible that he knew Mr. Kamali kept the car wash money on the premises though I find that conclusion speculative. Mr. Horton knew Mr. Kamali and Ms. Zoto. There could be many reasons for the attempted break-in. Robbery is one but a desire simply to injure is another. I appreciate that Mr. Horton committed a robbery in London about twenty-four hours earlier but I find it dangerous to conclude that the motive in the one incident must be the same as in the other.
[61] I agree with Mr. Kelly, however, that I do not need to determine the specific reason for trying to enter the home. I find as a fact that the nature of the attempted break-in establishes that his intention when he smashed the door with the rifle while masked was to commit an indictable offence – and I find that he did commit the offence of mischief – thus I find him guilty of both counts #1 and count #7.
Ms. MacNeil and the Attempted Break-In
[62] I also find that Ms. MacNeil was a full participant in the attempted break-in. I have covered much of my reasoning already in this judgment – much of what applies to Mr. Horton also applies to Ms. MacNeil.
[63] Mr. Oonapuu argued strenuously on behalf of Ms. MacNeil that I should reject Ms. Zoto's evidence that a female voice was heard at the outset of the incident. He makes this argument for a couple reasons. First, Ms. Zoto never mentioned a female voice in her statement to the police. Secondly, she spoke of "he", not "she" or "they", through most of her statement. Thirdly, he described Ms. Zoto as a terrible witness, lacking in both credibility and reliability.
[64] I reject these submissions and find as a fact that Ms. Zoto did hear a female voice and that the voice was Ms. MacNeil's. I did not find Ms. Zoto to be so lacking in reliability and I found her to be a credible witness. She was very emotional when testifying and clearly found this process extremely difficult. At times she made statements that later turned out to be inaccurate but those statements pertained to the taking of her statement and what she did or did not say to the officers. She maintained, for example, that she had spoken numerous times of a female and that she told the officer about a female voice.
[65] I note, however, that she was thinking back almost a year to a time when she gave her statement when she was in a highly emotional state. The glass on her outside door had just been smashed. More significantly, her partner had just been slashed in the neck, had bled profusely in her presence, and had been rushed to hospital. The extent of his injuries was not known at that point. Further compounding the issue was the fact that she gave her statement in English, clearly her third language. It is the reliability and fulsome nature of her statement to the police that is in question, not her court testimony. It is only logical to infer that her statement in the moment would not contain a totally comprehensive rendition of what occurred that night. I also find it logical that she would not remember all of the details that she did or did not provide to the police that night.
[66] Further, she did refer to more than one person in her statement as at various points she said "they". Much of the statement refers to "he", however that also makes logical sense as it is clear that the male party was the most aggressive.
[67] Finally, there is no question that two people were involved as two are seen running towards the home and away from the home.
[68] I have already outlined my reasons for finding that the two people running from the scene and driving away are the same two people who, minutes later, were found in the black Honda Civic near the home. Those reasons equally apply to Ms. MacNeil.
Mr. Horton and the Encounter with Mr. Kamali
[69] It has been conceded that Mr. Horton and Ms. MacNeil were seated in the car when Mr. Kamali raced into the parking area in his Mini Cooper. The issue is what happened when he exited.
[70] Mr. Kamali's credibility was fiercely challenged. There are issues with Mr. Kamali's overall credibility. He was at times evasive in his answers on peripheral matters and some did not make sense – for example, he described minding his own business when he entered and exited a Costco store yet for an unknown reason the police stopped him, questioned him about the cash he had, and charged him with robbery. Possible, perhaps, but highly unlikely. He testified to injuries that were more extreme than those documented in his medical records. He also changed his evidence regarding the colour of the car – it was a light colour on the Friday of his testimony but when we returned on Monday he said that it was a dark colour. He denied having spoken to Ms. Zoto over the weekend about court and the car but, again, that is difficult to accept as on that intervening weekend he had asked her to take pictures of scars on his head for court purposes.
[71] I can, however, accept some, none or all of a witness's testimony. Despite the overall credibility issues, I accept most of Mr. Kamali's evidence regarding how the altercation unfolded between him and Mr. Horton. I make that finding because a significant degree of his rendition is corroborated by other evidence. He testified that when he rushed over to Mr. Horton's car, Mr. Horton exited, masked, and hit him with a rifle. He pulled the mask off which is how he identified Mr. Horton. I find that Mr. Nguyen's evidence that he had seen a masked man holding a rifle drive by moments before corroborates Mr. Kamali's evidence that the incident began in that fashion. Further, I note again that both an imitation rifle and two masks were found in the car an hour later.
[72] I also accept as a fact that Mr. Horton stabbed Mr. Kamali. It was argued that Mr. Kamali was injured as an unintended consequence of the struggle between he and Mr. Horton, possibly by Mr. Kamali's own knife. I reject that submission.
[73] A knife was found next to the Mini Cooper. No blood can be seen on the blade and the knife handle had DNA only from Mr. Kamali. If that knife was used to stab him, Mr. Kamali would have had to have stabbed himself in the side of the head up by his left ear. Further, he would have had to stab himself with some force – this was no mere scratch as evidenced by the copious amount of blood on his clothing, soaking the sheet beneath him in the hospital. I find that concept totally illogical.
[74] Finally, the knife was found by the police on the ground by the driver's side rear wheel. Mr. Kamali testified that he had the knife with him but threw it back in the car when he exited. I accept this action as a fact. It fits with the knife placement. I accept that Mr. Kamali threw the knife but did not realize in the heat of the moment that he missed the interior of the car and it fell to the ground. Immediately after the stabbing, Mr. Kamali was holding his neck and bleeding profusely. He fell to the ground on more than one occasion. If this knife was in his possession at the time of the incident, he would have had to stagger back to his car, dropping the knife once he arrived there, and he would have had to clean the knife of all obvious traces of blood. That defies reason given the severity of his injury.
[75] I therefore find that Mr. Horton stabbed Mr. Kamali during the interchange between the two of them.
[76] I find I am unable to make a determination as to whether Mr. Kamali touched Mr. Horton first or whether Mr. Horton touched Mr. Kamali first. Mr. Kamali said that he approached the car without fear because he realized it was Ms. MacNeil and Mr. Horton. On the other hand, he had just arrived at the scene as a result of the call from Ms. Zoto, expecting to encounter the perpetrators, and he found Mr. Horton masked. I do not accept that he thought all would be well.
[77] I also find, however, that if Mr. Horton was reacting to Mr. Kamali's approach, it has been demonstrated beyond a reasonable doubt that the degree of force he used far exceeded any reasonable or proportional use of force required to repel the unarmed Mr. Kamali.
[78] I am left uncertain, however, regarding the motive for the assault on Mr. Kamali, much as I am left uncertain regarding the motive for the break-in.
Conclusions Regarding the Toronto Incidents
[79] Given my lack of clarity regarding motive, I find both Ms. MacNeil and Mr. Horton not guilty of the Toronto robbery charge.
[80] Given my findings regarding Mr. Horton's masked face at the time of the attempted break-in, the wounding of Mr. Kamali, and his use of the firearm to both smash the window of the home and hit Mr. Kamali in the head, I find Mr. Horton guilty of counts 1, 2, and 7.
Conclusion
[81] I find that the Crown has proven beyond a reasonable doubt all counts with the exception of count #5, the joint robbery count of Mr. Kamali.
Released: March 20, 2020
Signed: Justice K. Caldwell