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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2020-03-27

Court File No.: Toronto 19-Y190560

Between:

Her Majesty the Queen

— AND —

D.T., a young person

Before: Justice Alex Finlayson

Heard on: October 21, 22 and 24, 2019, November 28, 2019 and January 17, 2020

Reasons for Judgment released on: March 27, 2020

Counsel:

• Erin McNamara — counsel for the Crown
• Melody Izadi — counsel for the accused D.T.

PART I: OVERVIEW

[1] The Incident

On March 7, 2018, the complainant, "A.G." (then age 23), had a conversation by text message with a 15-year-old male, known to him as "Blitz" at the time. Blitz is the young person before the Court. Blitz' real name is D.T.

Both A.G. and D.T. live a short 5-minute walk away from each other, in the East York area of Toronto. During their text message conversation, A.G. and D.T. agreed to meet outside D.T.'s apartment on March 7, 2018.

According to A.G., the purpose of the meeting was that A.G. owed D.T. $20 in exchange for some crack cocaine that A.G. had previously purchased from D.T. In addition, on March 7, 2018, A.G. said, in response to D.T.'s request for it, that he would bring D.T. some marijuana. A.G. also agreed to throw in some extra marijuana too, on account of the $20 that he owed D.T. And, A.G. wanted to get more crack cocaine from D.T.

During their text message conversation, A.G. claimed that he and his "bro" had recently been out of Toronto, and that each had acquired a gun while away, plus two boxes of bullets. A.G. offered to sell a gun, and possibly the bullets, to D.T. A.G. claimed he would be bringing his "bro" to the meeting.

After these text exchanges, A.G. walked over to D.T.'s apartment, alone. He did not bring his "bro".

When A.G. arrived in the lobby of D.T.'s apartment building, he texted D.T., telling him to come out. D.T. responded that he could not come out, and told A.G. to go home. D.T. suggested to A.G. that they could "link up" later, in about an hour. However, building surveillance subsequently obtained by police revealed that, already by this point, D.T. was not home. He had already left the building and was not being truthful with A.G.

Upon realizing that they would not be meeting at that time, A.G. left D.T.'s lobby and started walking home. But then, A.G. ran into D.T., and another person, on the street. A.G. testified that he had never met this other person before. D.T. introduced the other person as "J".

A.G. was surprised that D.T. was out, and already near A.G.'s house, given their very recent text message exchange to the contrary. According to A.G., D.T. avoided explaining why it was that he was there, and instead started talking loudly, on the street, about the gun. In response, A.G. asked D.T. and J. to go for a walk, to obtain some privacy, worried that neighbours might overhear their conversation.

After walking down a street and turning onto another, D.T. walked off the sidewalk and headed towards a garage situated next to a house on a corner lot. It was near this garage that A.G. was then stabbed, on his left side in the neck, and then again on his right side in the face and through his mouth.

It is not disputed that A.G. was stabbed. Nor is it disputed that D.T. was with A.G., and this other person, known only as J., when the stabbings occurred. There is no evidence to suggest, nor is there an argument from the defence, that someone else was present (other than D.T. and J.), who might have stabbed A.G. D.T.'s identity on certain surveillance video that documents some of his comings and goings that day, is conceded.

[2] The Charges

D.T. is charged with 5 different offences relating to this interaction. At the conclusion of the trial, the Crown submitted that there should be acquittals on counts 2, 3 and 4, being certain robbery and weapons offences. That is because there was no evidence that anything was stolen, and counsel for the Crown felt she had not proven that the object used to stab A.G. was a knife. Therefore, the Crown only seeks findings of guilt on counts 1 and 5.

Pursuant to count 1, D.T. is charged with attempt to commit murder contrary to section 239(1) of the Criminal Code. Pursuant to count 5, D.T. is charged with aggravated assault contrary to section 268 of the Criminal Code.

[3] The Court's Findings

For the reasons that follow, I find D.T. not guilty of attempt to commit murder, but guilty of aggravated assault.

PART II: BACKGROUND

A. Information Concerning the Complainant and the Young Person

According to A.G., he and D.T. knew each other "from the area", but he denied that he and D.T. were friends. At the time of the stabbings, A.G. and D.T. had just recently started interacting with one another. A.G. said that in total, he had met D.T. about 5 times in person. According to A.G., D.T. sold him crack cocaine on at least one, and perhaps two occasions, prior to the stabbings.

A.G. suffers from opioid addiction. A.G. acknowledged that he has struggled with this addiction for about 3 years. By the time of the trial, A.G. said he had been sober for somewhere between 3 and 5 months. However, at the time of the stabbings, he had gone without drug use for only about a day.

Both then and now, A.G. takes methadone to manage his opioid addiction.

B. The Text Message Conversations Between the Complainant and the Young Person

The Crown brought an application on the first day of this trial to introduce certain evidence of the young person's prior discreditable conduct. For oral reasons delivered at the outset of the second day of trial, which I do not intend to repeat here, I granted the application. The evidence consisted of the text message exchange between A.G. and D.T., supplemented by certain parts of A.G.'s viva voce evidence, during which he explained his prior dealings with D.T., and he explained the meaning of certain things written in the text messages.

Following the stabbings, A.G. voluntarily turned over his cell phone to Officer Mike Ghazarian, the lead police investigator involved with this matter. While the police seized D.T.'s cell phone too, Officer Ghazarian testified that the police were not able to extract data from it. Therefore, the record of the text message conversation between A.G. and D.T. that was introduced into evidence at this trial, was taken exclusively from A.G.'s phone.

A.G.'s and D.T.'s text message conversation began in the afternoon of March 7, 2018, while D.T. was still in school. According to A.G., at about mid-day, D.T. sent him a message saying that D.T. would "link" him when done with school. D.T. told A.G. that he needed "kush so make sure u have it up". According to A.G., "kush" means "weed" (ie. marijuana).

A.G. testified that he did not have any "kush" when he received the text message, but he told the Court that his plan was to get some before meeting D.T. In a responding text message, A.G. asked D.T., whether instead of D.T. paying him "gwop" (which A.G. said means money) for the marijuana, would D.T. instead "just trade [A.G.] the kush for wat u have". A.G. said that "wat u have" meant he wanted more crack cocaine.

A.G. went on to propose to D.T. that he would give him additional marijuana too, since as I have said, A.G. owed D.T. $20 for a prior crack cocaine purchase. In response, D.T. texted back to A.G. "just gimme 4 G's and imma bless u". A.G. agreed.

It was at this point in the text message conversation that A.G. began talking about the gun. As I said earlier, A.G. told D.T. that he had left Toronto with his "bro" and that while away, each had obtained a gun, plus two boxes of "things for it". A.G. testified that "things for it" meant bullets. A.G. offered to sell a gun, and perhaps the bullets, to D.T. In response to these comments, D.T. said that they would talk about this in person.

A.G. told D.T. that he was going to bring his "bro" with him to the meeting. But A.G. did not then bring any "bro" with him, nor was there any direct evidence before the Court that he actually had the gun, or the bullets, on him either, when he later met D.T.

Still talking via text message at this point, A.G. and D.T. agreed to "link up" at "5 or 6". Then, during another several pages of their messages back and forth, A.G. and D.T. discussed the price for the gun. Although a dollar value is not clearly stated, in plain English, in the text messages, A.G. explained that what he wrote to D.T. meant that he wanted $1,000.00.

At 4:47 pm, D.T. messaged A.G., saying "can u link rn", which I was told meant that D.T. wanted to meet A.G. "right now". At 4:49 pm, A.G. responded saying "yo I just left so be ready". A.G. testified that he was already walking over to D.T.'s apartment at the point of sending the latter text message.

When A.G. arrived at D.T.'s building, he waited in the lobby. At 4:55 pm, A.G. sent another text message to D.T. saying "Yo come ou". However, D.T. did not come out.

A.G. continued to send several more messages to D.T.

At 5:08 pm, D.T. told A.G. that he could not come out. D.T. again texted to A.G. that he could not come out in a subsequent message after that, and that he would "link in an hour".

Still, the texting continued.

Eventually, at 5:22 pm, D.T. texted A.G. "Yo jus go home lmao".

A.G. responded, asking if he could come back in an hour. D.T. said "yea".

C. The Complainant Then Walks Towards His Home and Encounters the Young Person, and J., on the Street

After this, A.G. left D.T.'s apartment building, and started walking home. He testified that as he was getting close to his home, he saw D.T. and the other person, J., out on the street.

Upon meeting them, A.G. asked D.T. how it was possible that he was already there, as D.T. had just said via text message that he was at home and could not come out. According to A.G., D.T. ignored the question and started talking about the gun.

A.G. was concerned that D.T. was talking loudly about the gun, and so he suggested that they go for a walk, worried the neighbours would overhear them. So, the three started to walk down the street they were on, and then they turned onto another street.

During his examination in chief, A.G. said that as the three walked, D.T. and J. kept their hands in their pockets the entire time.

For his part, A.G. testified that he had nothing in his pockets. He said he was holding his cell phone in his hand as they walked.

D. The Complainant Is Stabbed Twice

At the end of the second street, there is a house on a corner lot. That house has a garage next to it. A.G. said that as the three approached the corner lot, D.T. walked off the sidewalk and in towards the garage.

D.T. was on the left side of A.G.'s body as he walked in towards the garage, whereas J. remained on A.G.'s right side. Then, according to A.G., D.T. turned around, came back towards A.G., stabbing him on his left side, in the neck.

Almost instantaneously or simultaneously with D.T. turning back towards A.G., A.G. reacted by turning to look to the right, to check his surroundings. A.G. did not see a weapon when he was stabbed in the neck.

Once stabbed, A.G. fell to the ground. He said he was holding his neck to stop the blood from coming out. A.G. testified that as he got up, the other person, J., then stabbed him on his right side, in his face. A.G. also testified that he later noticed about four other stab marks in his clothing, including through his Canada Goose vest. Photographs taken by Officer Ghazarian do show some tears on the vest.

In cross-examination, A.G. testified that he was in shock upon being stabbed. He tried to get away, but he said that both D.T. and J. were grabbing at him. He said that he was initially crawling "like a baby" on "all fours" for a few meters because he had "lost a lot of blood", before he was able to get up and run home.

As I will explain in more detail, at this point a pizza delivery person named R.H. happened to drive by. He observed a scuffle between the three and honked his horn several times. It appears that this caused the three to disperse in different directions.

At this point, A.G. was able to run home. D.T. and J. ran the other way. They did not follow him.

A.G. testified that when he got home, he opened the door and fell down. He said it was at this point that he saw his father. He was then taken to the hospital.

E. Officer Ghazarian's First Interview of A.G. in the Hospital

Officer Ghazarian met with A.G. in the hospital soon after the stabbings. Officer Ghazarian testified that it was obvious that A.G. was having difficulty speaking due to his injuries. But he wanted to do an interview with A.G. as soon as possible after the incident.

Despite A.G.'s limited ability to speak, Officer Ghazarian was able to ask A.G. a serious of yes and no questions. And A.G. was also able to write down some answers on paper during the interview.

Through a combination of nodding yes or no, pointing, and writing, A.G. told Officer Ghazarian that the person who stabbed him was a white male, age 15 years old. He was able to give Officer Ghazarian D.T.'s address. He told Officer Ghazarian that D.T. lives on the first floor of the apartment building with his father. He gave Officer Ghazarian the name "Blitz", and described what Blitz was wearing. He also described J.'s physical characteristics, to some extent. And A.G. wrote that Officer Ghazarian should review the "lobb can log" (sic.) from D.T.'s apartment building.

After A.G. was released from the hospital, in a subsequent statement to the police, A.G. once again identified D.T. as the person who had stabbed him.

F. No Witness, including A.G., Observed A Weapon

Apart from A.G.'s testimony, there is no direct evidence that it was D.T. who stabbed A.G. in the neck. As I have already said, at no point during their encounter did A.G. see either D.T., or J., wield a knife, or any other sharp object.

The police did not retrieve any weapons, which could have been used for the stabbings, during the execution of a subsequent search warrant of D.T.'s home. Nor did any of the other two witnesses who testified at this trial observe any weapon.

However, it is clear, not only from A.G.'s viva voce evidence, but also because of the photographs of A.G. taken by Officer Ghazarian while A.G. was in the hospital, and A.G.'s hospital records, that A.G. had in fact been stabbed and quite badly injured.

PART III: THE ELEMENTS OF THE OFFENCES

A. Aggravated Assault

Pursuant to section 265(1) of the Criminal Code, a person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

Pursuant to section 268(1), everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

The mens rea respecting aggravated assault is the objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure, just that there be objective foresight. See R v. Godin; see also R v. Cuadra, 1998 CarswellBC 1219 (C.A.).

B. Attempt to Commit Murder

Pursuant to section 239(1) of the Criminal Code, every person who attempts by any means to commit murder is guilty of an indictable offence.

Attempt is defined in section 24 of the Criminal Code.

Pursuant to section 24(1), every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

Pursuant to section 24(2), the question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

In R v. Ancio, the Supreme Court considered the elements of the offence of attempt to commit murder, and in particular, the mens rea of the offence. At ¶ 32, the Supreme Court wrote, "[t]he completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill… the mens rea for an attempted murder cannot be less than the specific intent to kill."

And at ¶ 37, the Court held, "[t]he intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent…. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder."

PART IV: ISSUES AND ANALYSIS

A. Summary of this Court's Ruling

There is no question that the Crown has proven the actus reus of an aggravated assault beyond a reasonable doubt. Regarding the assault itself, direct force was intentionally applied to A.G., without his consent.

Regarding the aggravated nature of the assault, A.G.'s hospital records reveal that he sustained serious injuries to his neck, to his face and to his inner mouth. He had to undergo surgery.

Furthermore, Officer Ghazarian's photographs reveal a stab mark on the left side of A.G.'s neck closed together with stiches or staples. They also reveal swollen eyes, a cut mark on his lip, stiches around his mouth.

Officer Ghazarian described that when he attended at the hospital, A.G. had a severe cut to the moustache area of his mouth, and a cut tongue inside his mouth.

The photographs also depict what appears to be dried blood on A.G.'s face and nose. Both A.G. and Officer Ghazarian testified that A.G. lost a tooth during this incident.

The nature of these injuries are of the kind contemplated by section 268(1) of the Criminal Code. But to be clear, according to A.G.'s account, some of these injuries would have been caused by the other person, J., whom A.G. alleges stabbed him on his right side.

As A.G. has alleged that D.T. stabbed him in the neck on his left side, I specifically find that that wound on the left side of his neck alone, also is the kind of injury contemplated by section 268(1) of the Criminal Code.

I say this without, at this point in this Judgment, considering whether there would be any party liability for D.T. respecting the other injuries that were inflicted upon A.G. by J.

Regarding the mens rea of aggravated assault, there is also no serious issue that the Crown has proven the necessary intent, including the objective foresight of bodily harm required.

Therefore, there are essentially two, and possibly three issues, that I must decide in this case:

Issue #1: Should the Court find D.T. guilty of aggravated assault? This turns, in part, on whether the Court ought to draw an inference that it was D.T. who stabbed A.G. in his left side, in the neck;

Issue #2: If the Court has a reasonable doubt as to whether D.T. actually stabbed A.G., is D.T. nevertheless a party to the aggravated assault pursuant to section 21 of the Criminal Code?; and

Issue #3: If this Court finds that D.T. stabbed A.G., then should the Court also infer that D.T. intended to kill A.G.?

In my view, the answers to the questions posed in Issues #1 and #3 are Yes and No, respectively. Although submissions about D.T.'s party liability were made, I need not decide this in light of my conclusion that D.T. did in fact stab A.G. in the neck. I will now explain why I have reached these conclusions.

B. Applicable Legal Principles Concerning the Complainant's Credibility

The Crown has asked the Court to give itself a Vetrovec warning. The Crown concedes that the complainant is a so-called unsavoury witness.

At ¶ 37 of R v. Khela, 2009 SCC 4, the Supreme Court adopted the principled framework set out by the Ontario Court of Appeal in R v. Sauvé (2004), 182 C.C.C. (3d) 321, to assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case. The framework has four elements, namely:

(a) The Court should draw to the attention of the jury (or to itself, where there is no jury as in this case) testimonial evidence requiring special scrutiny;

(b) The Court should explain why the evidence is subject to special scrutiny;

(c) The Court should caution the jury (or itself) that it is dangerous to convict on unconfirmed evidence of this sort, although that may be done if satisfied that the evidence is true; and

(d) The trier of fact, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

The need to give a Vetrovec caution is not limited to cases involving accomplices, or others who fit the traditional definition of an unsavoury witness. A cautionary warning may also be required, for example, where a witness has made inconsistent statements (although this is not always required). See R v. Fatunmbi, 2014 MBCA 53.

As the Manitoba Court of Appeal held at ¶ 37 of R v. Fatunmbi, two main factors will be relevant in deciding whether a Vetrovec warning is necessary: the witness' credibility and the importance of the witness' testimony to the Crown's case.

Citing R v. Brooks, 2000 SCC 11, the Manitoba Court of Appeal held in R v. Fatunmbi:

…where the witness is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness' evidence. In short, the factors should not be looked to independently of one another but in combination.

C. Applicable Legal Principles Concerning Drawing Inferences Based on Circumstantial Evidence

In addition, this case depends in part on circumstantial evidence.

Apart from A.G.'s direct testimony that he was stabbed, the question regarding whether it was D.T. who stabbed A.G. on his left side in the neck rests on circumstantial evidence, as does the inference the Crown asks the Court to draw about D.T.'s alleged intention to kill A.G.

The Court must be careful about too readily drawing inferences of guilt based on circumstantial evidence. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that may be drawn.

The trier of fact should consider "other plausible theories" and "other reasonable possibilities" which are inconsistent with guilt. However, the Crown need not negative "every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused".

"Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation". See R v. Villaroman, 2016 SCC 33.

Conclusions alternative to guilt may be based on inferences drawn from proven facts, but they may also be based on an absence of evidence. See R v. Villaroman.

D. Analysis Respecting A.G.'s Credibility

The Court finds it to be appropriate to issue a Vetrovec caution to itself. In this case, A.G.'s testimony is clearly essential to the Crown's case. There are credibility concerns about A.G.'s testimony.

The overarching subject matter of A.G.'s testimony that requires special scrutiny is the evidence about the stabbings themselves. However, those are not the only aspects of his testimony that the defence calls into question.

The defence submits that A.G.'s criminal record, his failure to tell Officer Ghazarian about the part of the text message conversation involving the proposed guns and bullets sales, and the fact that he lied to D.T. about bringing his "bro" to the meeting, are all areas where A.G. is vulnerable respecting his credibility.

Counsel for the defence submits that A.G.'s story "doesn't make sense". Therefore, there must be something that he has not told the Court. This should cause the Court to have a reasonable doubt as to D.T.'s guilt.

However, in the result, and for the reasons that I will explain, I do not find the credibility problems to rise to the level of "overwhelming" as discussed in R v. Fatunmbi or even near that level. Nevertheless, even if I am mistaken regarding my description of A.G.'s credibility problems, there is a considerable amount of confirmatory evidence in this case, that gives the Court comfort in arriving at the finding of guilt in this case.

I turn to the issues concerning A.G.'s credibility next, followed by the confirmatory evidence.

(1) A.G.'s Criminal Record

The defence says that a significant reason for the Court to be cautious is A.G.'s criminal record.

A.G. has a lengthy criminal record dating back to 2011. It includes findings of guilt for various drug offences, failures to comply, a theft, weapons charges and an assault charge, among others.

During cross-examination on his criminal record, A.G. said he was unable to recall the specifics of many of the findings of guilt. Counsel for D.T. focused her cross-examination on several of A.G.'s failures to have complied with prior court orders. A.G. was unable to explain the details of several terms of court orders that he breached. He did not remember what weapon he had been found guilty of possessing, for example.

Both counsel for the Crown and the defence agree that A.G.'s evidence was problematic concerning his criminal record. The Crown characterized A.G.'s testimony regarding his criminal record as demonstrating a "reluctance" on A.G.'s part to discuss its details.

The Crown's characterization of A.G.'s testimony as reluctant paints it in too favourable a light. I would characterize it as evasive. I agree that this evidence, and the manner in which A.G. responded to questions about it, calls A.G.'s credibility into question.

However, as I will explain, it does not create a reasonable doubt about the stabbings.

(2) A.G. Failed to Advise Officer Ghazarian of the Text Message Discussion About the Guns and Bullets

The defence relies on A.G.'s failure to disclose, to Officer Ghazarian, the portion of the text message conversation about the guns and the bullets, when he gave his police statement, as another area where A.G. is vulnerable respecting his credibility.

Indeed, when A.G. initially spoke to Officer Ghazarian after getting out of the hospital, he did not specifically mention that part of the text message conversation. He only disclosed it, just prior to the trial, when he was preparing, with counsel for the Crown, to testify.

During his examination in chief, A.G. explained this by saying that he was not really focused on that aspect of his text message discussion with D.T. when he gave his police statement. He said this was due to the medication he was then on, after the stabbings.

In cross-examination, counsel for the defence suggested to A.G. that he failed to tell this to the police, deliberately, because he was on probation. A.G. denied that suggestion.

I do note, however, that at the time A.G. made his statement to Officer Ghazarian, there was also a weapons prohibition order against him in place too, in addition to the fact that he was on probation.

The Crown attempted to rehabilitate A.G.'s credibility regarding this topic by arguing that although he omitted to specifically tell Officer Ghazarian about the guns and bullets conversation, A.G. nevertheless readily turned his cell phone over to Officer Ghazarian for the investigation. The cell phone itself has a record of the guns and bullets conversation on it. However, even Officer Ghazarian testified in cross-examination that he did not follow up and further investigate the guns after reading the texts, because the words used in the text message conversation were not so clear as to what the two were actually talking about.

On this topic, I agree with the defence that A.G.'s omission calls his credibility into question. I question the veracity of A.G.'s explanation to the Court that he failed to tell Officer Ghazarian about the guns and bullets because of his medical condition at the time. In my view, it is far more likely that he omitted to share this, because of the possible ramifications for him of having a gun in his possession, especially when considered in tandem with his criminal record and the orders made against him relating to other criminal convictions.

However, again, this does not mean that he was not being truthful about the stabbings.

(3) A.G. Lied to D.T. About Bringing His "Bro" To the Meeting

The defence submits that A.G. lied to D.T. about what was coming with him to the meeting. In cross-examination and then in re-examination, A.G. explained that he was "lying" to D.T. about bringing his "bro" to the meeting, because he was trying to look "cool".

Counsel for the defence suggests this explanation is absurd, that A.G. would be trying to look "cool" to a 15-year old. This is another area where counsel submits there must be more to the story.

I agree with the defence that this too calls A.G.'s credibility into question. But again, this does not mean that he was not being truthful about the stabbings.

(4) The Confirmatory Evidence

In my view, none of these issues respecting A.G.'s credibility questions raise a reasonable doubt as to the conclusion I have reached that D.T. did in fact stab A.G. in the neck. I agree with counsel for the Crown that there is a considerable amount of other evidence that corroborates A.G.'s account.

I - The Text Messages

First, there are the text messages. The text messages clearly reveal a conversation designed to get A.G. out of his house for an ostensible meeting at D.T.'s apartment building, at a time when D.T. was not there.

II - The Surveillance Video of D.T.'s Lobby

Second, there is surveillance video of D.T.'s lobby, which confirms the timing of D.T.'s and A.G.'s comings and goings that day. This includes the timing of D.T.'s departure from his apartment building with someone else, prior to A.G.'s subsequent arrival there, followed by A.G.'s departure from the building lobby, and then D.T.'s eventual return home.

On March 9, 2018, Officer Ghazarian went to D.T.'s apartment building, to obtain surveillance video of the lobby. He downloaded video covering the period between March 7, 2018 (the date of the stabbing) and March 9, 2018.

The surveillance video confirms that before A.G. arrived on March 7, 2018, D.T. (and a female believed to be his girlfriend), left the building, taking a dog out for a walk.

The surveillance depicts a red truck (which Officer Ghazarian referred to as a Dodge Ram) drive up to the building. D.T. is seen walking over to the passenger side of the truck. D.T. is not seen on camera getting into the truck at this time, however. Instead, the truck backed up into the parking lot, behind D.T.'s building.

According to Officer Ghazarian's testimony, there is only one way to exit the building from that parking lot. That would require the truck to drive back out the driveway, where the truck was initially depicted on camera. In other words, the truck would have to be seen on camera a second time, in order to leave.

The surveillance video shows D.T. subsequently leave the building again, not too long after earlier being depicted standing on the passenger side of the truck. It shows D.T. walk back towards the parking lot area, to where the red truck had recently backed up. The red truck is then captured on camera driving out of the parking lot.

Based on this evidence, I am asked to draw the inference that the truck remained behind the building after it backed up, until it later drove out. I heard no suggestion of any alternative inferences to be drawn. I draw that inference.

A red truck is later depicted on other surveillance video from the street on which A.G., D.T. and J. later walked. I draw the inference that D.T. got into the red truck that was behind the building, and then it drove out.

To be clear, all this is captured on camera before A.G. arrives. Yet during this entire time, the person with whom A.G. had been text messaging talked as if he was at home.

A.G. is then seen on video arriving at the building lobby. The surveillance video reveals that A.G. came in and out of the building, and walked around the first floor, as if he was looking for someone, before leaving.

The surveillance video at times depicts A.G. using his cell phone. This is consistent with his account that he was texting D.T. while at the building.

The surveillance video shows A.G. then leave D.T.'s apartment building, consistent with A.G.'s evidence as to what happened that day, and the text messages.

Later on, and well after the time frame that the stabbings are said to have occurred, D.T. is observed on camera returning to the building.

III - The Surveillance Video of the Street

Third, there is also different surveillance video from the street on which the three walked after A.G. encountered D.T. and J. That video surveillance corroborates part of A.G.'s account as to how the three met. It also corroborates, to some extent, A.G.'s evidence that D.T. and J. had their hands hidden while they walked.

Indeed, this video shows D.T.'s and J.'s hands in their pockets while walking. Although the video does not capture their entire walk together, and although in cross-examination A.G. conceded that he was not watching both D.T.'s and J.'s hands the entire time, he recalled that the two sets of hands were in general, not out in the open.

Counsel for the defence submits that the Court should not draw the inference that the reason D.T. had his hands in his pockets was because he was concealing a knife or other weapon in his pocket. She submits perhaps it was just cold outside.

I place little weight on these submissions. First, a witness named L.T., whose evidence I will summarize next, testified that it was warm out that day. And in any event, even if it was cold, having one's hands in one's pockets on account of cold weather, is not mutually exclusive with the proposition that one had one's hands in one's pockets because he was carrying an object ultimately used to stab. He could have been doing both.

And in any event, given that A.G. was actually stabbed soon thereafter, I find it to be a reasonable inference that there was some kind of object in D.T.'s pocket.

IV - L.T.'s Evidence

Fourth, there is the evidence of a witness, L.T., who observed portions of the events in question.

L.T. is a resident who lives in a house on the second street, on which the three walked, before A.G. was stabbed. L.T. happened to be outside on his front porch on a break from making dinner, smoking a cigarette, as A.G., D.T. and J. walked by his house. The three walked by L.T.'s house but on the opposite side of the street.

L.T. wears glasses. He was not wearing his glasses while outside smoking when he observed the three pass by initially. L.T.'s description of what he recalled seeing is not an accurate description of the three who passed by. However, given the concessions as to identity in this case, that does not affect my analysis.

What L.T. did say during his testimony, on which I do rely, is that he recalled A.G. walking by with two others. He did not know A.G. personally, but he had seen him around the neighbourhood. He recognized A.G. at the time based on that history of having seen him around the neighbourhood, plus he had also previously noticed A.G.'s distinctive walk. He recognized A.G. that day in part because of his manner of walking.

L.T. did not know the other two persons with whom A.G. was walking. But L.T. recalled that there were two other persons with A.G. He remembered this in part, because he said he had not seen A.G. with others before.

L.T. believed they passed by, somewhere between 5:15 and 5:45 pm. He was able to recall the time they walked by, because as I said, he was home from work and making dinner.

His recollection as to the time they passed by is consistent with the time of the text messages that had been exchanged. It is also consistent with the time stamps on the video surveillance, and Officer Ghazarian's evidence about the time stamps.

L.T. described that the three were just "walking and talking" as they passed by. He could hear voices, but not their words. He described the three (before the stabbing) as "three buddies sort of talking together".

L.T. also happened to be outside on his porch again, having another cigarette when A.G. passed by alone, going the opposite direction, after the stabbings. L.T. estimated this was about 15 minutes after having seen the three walk by in the first place. Meanwhile, A.G. estimated that the entire period of time that the three were together was between 10 and 20 minutes.

L.T. testified that A.G. was moving at a much quicker pace, practically running and holding onto his chest. He remembered this, as he had never seen A.G. run before. L.T. first wondered if A.G. had forgotten something. Then he heard A.G. make a "loud, high pitched sound". L.T. wondered if A.G. was alright, but then lost sight of him.

This observation evidence is consistent with A.G.'s evidence that he ran home after being stabbed.

V - R.H.'s Evidence

Fifth, there is the evidence of R.H., a pizza delivery driver, who happened to pass by and observe some of the encounter between A.G., D.T and J.

R.H. had just delivered a pizza in the area. He drove by the garage on the corner lot just after the stabbing had occurred. While he did not see A.G. get stabbed, he described seeing three people pushing each other.

R.H. testified that he first thought it was a "friendly prank" or a "friendly brawl" between the three, but then one of the three pushed another of the three in front of his car. R.H. testified that he was alarmed by this, and at that point he honked his horn. In total he said he honked his horn three or four times. As I have already said, this appears to have caused the three to disperse.

R.H.'s description of the fight differs from A.G.'s somewhat. Whereas A.G. said he was "crawling like a baby", R.H. recalled that one person had fallen down to the sidewalk, got up and then was pushed down again. R.H. thought that the person pushed down was on his back (as opposed to on "all 4s"), and was looking up at the person who had pushed him. As well, the person who had been pushed down actually came off the sidewalk and had fallen onto the street, in front of R.H.'s car, according to R.H. That is what led R.H. to honk the horn.

A.G. did not recall R.H. being present in his car for part of the encounter, nor did he recall a car horn being honked several times. These discrepancies between A.G.'s evidence and R.H.'s evidence as to the scuffle occurred are not material in my view. Nor do I find it surprising that A.G., who had just been stabbed and who said he was in shock, did not recall R.H. passing by in a car, nor that R.H. was honking his car's horn.

VI - A.G.'s Own Evidence Compared to the Evidence About the Nature of the Injuries

Sixth, there is A.G.'s own evidence, compared to the medical and other evidence about the nature of the injuries themselves.

A.G. was not fully consistent during the trial when testifying as to whether D.T. "rushed" at him after turning back from the garage, or not. But I understood the overall tenor of A.G.'s evidence to be that this happened suddenly.

In any case, as D.T. returned towards A.G., A.G.'s testimony was that D.T. was located on A.G.'s left side, whereas J. was still on his right. A.G. was adamant that each of D.T. and J. stabbed him on both his left and right sides, respectively, given their physical locations in relation to him when the stabbings occurred, and the sequence of events as they unfolded.

I believe him.

He was not shaken in cross-examination as he told his story as to how the stabbings occurred, multiple times.

In cross-examination, A.G. persisted in saying he knew it was "Blitz" who had stabbed him in the neck, because "Blitz" was on his left side. He said it could not have been "the other guy", because J was on the right side.

A.G. became frustrated as counsel for the defence asked him repeatedly about what happened, looking for some inconsistencies.

A.G.'s account is also consistent with the nature of his injuries. There is medical and photographic evidence of injuries in locations consistent with the way that A.G. said he was stabbed.

VII - The Evidence Concerning D.T.'s Knuckles

Officer Ghazarian testified that he photographed D.T.'s knuckles following the arrest, because he observed some bruising or other abrasions there.

In cross-examination, A.G. admitted that no punches were thrown during the incident.

Therefore, I do not consider this to be confirmatory evidence in arriving at the conclusion. I place no weight on either Officer Ghazarian's testimony about D.T.'s knuckles, nor the photographs he took of them, in reaching the conclusion.

E. Analysis Respecting A.G.'s Credibility and Reliability Relating to His Drug Use

Counsel for the defence also challenges both the credibility, and the reliability of A.G.'s account, based on his history of drug use and addiction.

First, she says the Court should doubt whether A.G. was actually sober at the time of the stabbings. If the Court does have this doubt, then this is another credibility issue given his testimony to the contrary. And regardless, even if he was not then using, then perhaps he was experiencing withdrawal symptoms. His recollection cannot be reliable either, according to the defence.

I reject these submissions. Although at the trial, A.G. said that he was just recently sober, I do recognize that around the time of the stabbings, A.G. admitted to have been using fentanyl. He also used crack cocaine and smoked marijuana during that time frame, but said he was not addicted to those.

However, A.G. said that he had not used fentanyl, or crack, or marijuana, on the day of the stabbings itself. To be specific, while he had been using fentanyl every couple of days at that point, A.G. said he was completely sober at the time of the stabbing.

In cross-examination, A.G. candidly acknowledged that he experienced withdrawal symptoms when not using fentanyl. But he had also taken methadone that day. A.G. testified that his methadone made him feel "like a normal human being".

I observed A.G. to have been very candid with respect to his drug use. There was nothing in the cross-examination about the events in question, and in particular regarding the evidence about stabbings themselves considered in the context of all of the evidence, that caused the Court to doubt that A.G. was materially mis-remembering how he was stabbed because of his drug use or addiction.

I also reject the defence's submissions that A.G. appeared not to be sober on the surveillance video, in light of the way that he was walking. First, the evidence from L.T. was that A.G. has a distinctive walk (which the Court also observed in the Court room during the trial). Second, A.G. can be seen texting and using his cell phone on the surveillance video while in D.T.'s lobby. It may be that he was not paying attention to the manner in which he was walking. In any event, I would not draw such a speculative inference, that he was not sober, from a review of the surveillance video.

F. Conclusion Respecting the Aggravated Assault Charge

Based on the foregoing, I draw the inference that D.T. did stab A.G. on his left side, in the neck.

The defence suggested that perhaps it was J. who did all the stabbing and that D.T. did none of it. For reasons that I have already explained, I do not accept this as an alternative theory as a plausible one.

A number of D.T.'s possessions were seized after the stabbings pursuant to a search warrant. The defence argued that the Court should have a reasonable doubt as to D.T.'s guilt, based on the absence of blood on those possessions. If blood was gushing out, the defence says, then blood ought to have been detected.

The manner in which this evidence was tendered was confusing. Confusing questions were asked about this. Officer Ghazarian was mistaken in his evidence and then the record had to be corrected on consent. Counsel for the Crown attempted to introduce an expert report to correct a statement, even though no expert witness was called.

To be clear, there may have been some evidence of blood on an article seized from D.T., but no expert evidence was called about this linking it to A.G. I place no weight on this. I am treating the record as though no blood was found.

The Crown did not call expert evidence about blood splattering to explain that it could be possible that no blood got onto D.T., despite his being involved in the stabbing. However, in my view, in light of the other evidence before the Court, it did not need to.

I find that the absence of blood does not create a reasonable doubt as to whether D.T. stabbed A.G. In saying this, I note two things from the viva voce evidence. First, A.G. testified that he was holding his neck after he was stabbed. This is corroborated by both R.H. and L.T.

And second, R.H.'s evidence was that all three males were involved in the scuffle. A.G. would have been stabbed at that point and there is evidence that D.T. would have been close to him, in that scuffle. Perhaps D.T. was just lucky that he did not get A.G.'s blood on him. But again, this does not raise a reasonable doubt as to the stabbings, when I consider all of the other evidence.

Finally, the defence attempted to suggest an alternative theory, such as perhaps A.G. actually had the gun on him, and then something else happened, leading to the stabbings. Given A.G.'s credibility issues and the fact that counsel says the "story doesn't make sense", the defence suggests that the Court ought to have a doubt as to the veracity of A.G.'s version of events.

There was no evidence before the Court upon which the Court could consider a defence of self-defence. Counsel for the defence did not suggest that a defence of self-defence exists either. The suggestion that maybe something else happened, perhaps involving the gun, is not an inference that the Court may draw on the evidence before it, or based on the absence of some piece of evidence. In my view, it is not a "plausible theory" or "other reasonable possibility". It is little more than speculation at this point.

G. Whether D.T. Is A Party to the Offence

As I have found that D.T. actually stabbed A.G., I need not determine whether D.T. is a party to the offence pursuant to sections 21(1) (b),(c) or (2) of the Criminal Code, in the scenario/theory that it was J. who did all the stabbing.

H. Conclusion Respecting the Attempt to Commit Murder Charge

The Crown submits that the Court should also infer that D.T. had the intent to kill A.G. because:

(a) he set a trap to get A.G. out of his house;

(b) he took A.G. to a place of relative privacy;

(c) he stabbed A.G. in a vital area of his body; and

(d) he fled after the stabbing, rather than assisting A.G.

The defence argues that the life-threatening nature of the wound, on its own, is not sufficient for the Court to infer an intent to kill. The defence submits that D.T. did not chase after A.G. as he fled, to refute the suggestion that he intended to kill him. And it also makes no sense, according to the defence, that D.T. would just return home, passing by the lobby surveillance, again, if he had just tried to kill someone.

I do not fully accept either counsel's characterization of the evidence in these respects relating to the attempt to commit murder charge. For example, regarding the suggestion that D.T. took A.G. to a place of relative privacy, it was actually A.G. who suggested that the three go for a walk to find privacy, not D.T. And regarding the evidence of A.G.'s escape, how he got away and why the others ran in the other direction has more to do with the fact that R.H. honked his car horn and broke up the encounter than anything else, in my view.

The Crown has provided to the Court a number of cases in its Book of Authorities in which courts have inferred an intent to kill. These cases turn on their facts, and those facts differ from the facts of this case before this Court. I do not intend to through each of the cases and summarize them in this Judgment.

In this case, I find it to be significant that there was no evidence of animus between A.G. and D.T. A.G. was asked by the Crown, and denied, that he had any prior conflict with D.T. at this point. His words were, "no everything was alright".

In cross-examination, A.G. testified that while D.T. was upset about the $20 that he was owed, A.G. had "talked to him about it". He maintained that there had been no fight over the $20.

Given the Supreme Court's comments in R v. Ancio, that the mens rea for attempt to commit murder is the highest intent in murder, I would not find D.T. guilty on the facts of this case.

The inference that D.T. intended to kill A.G. is not the only reasonable inference that may be drawn here. For example, it is equally plausible, in my view, that there could have been an intent to rob him, in light of the prior text message discussion about drug and gun transactions. As a result of the prior conversation, D.T. would have thought that A.G. was coming with marijuana, a gun and bullets. It could be that the plan to lure A.G. out of his home was in furtherance robbing him.

Incidentally, count two is a robbery charge (for which I have already acquitted D.T. on account of the lack of evidence of something being stolen). But until the last day of the trial, this charge remained pending and was being pursued by the Crown. Indeed, the Crown had asked that D.T. be arraigned on this count.

This strengthens my view about a plausible alternative inference in this case relating to D.T.'s intention and a possible robbery. At some point, including into this trial, the Crown must have shared the opinion that there was an intention to rob (although admittedly, perhaps the Crown may have thought there was a dual intention).

Regardless, I do not find the attempt to commit murder charge to have been proven beyond a reasonable doubt based on the applicable legal principles applied to the evidence.

PART V: CONCLUSION

Therefore, I find D.T. not guilty of count 1, being attempt to commit murder, but guilty of count 5, being aggravated assault.

This decision is being released in writing during the Court's reduced operations due to the COVID-19 outbreak.

The parties shall appear before me via telephone conference on a date to be arranged by the trial coordinator, at which time the not guilty and guilty findings shall be entered into the record, and the Court will set the next steps for D.T.'s sentencing.

Released: March 27, 2020

Signed: Justice Alex Finlayson

Footnotes

[1] According to A.G., the bullets pertained to only one of the guns. Therefore, he offered to sell the bullets too, only if D.T. purchased the gun to which they pertained.

[2] As I have said, A.G. did not know J. at this point. He testified that that J. was somewhere between 16 and 22 years old. A.G. also testified that he has not seen J. since the stabbing. Officer Ghazarian testified that the police have not been able to locate J. either, nor a red Dodge Ram truck that was involved in the incident that day.

[3] For example, he misdescribed the color of a hoodie that one of the three (not A.G.) was wearing. During the trial, he was not able, with complete confidence, to identify A.G. out of a still photograph taken from video surveillance of the street, either.

[4] The time stamp on different video surveillance was off. However, Officer Ghazarian compared it with his own watch and made adjustments in his evidence accordingly.

[5] R.H. testified that the person who got up from being pushed down, was touching his face "weirdly". L.T. said he was holding his "chest" when he ran home.