Court File and Parties
Ontario Court of Justice
Date: November 18, 2020
Court File No.: Brampton 19-39809, 19-39733
Between:
Her Majesty the Queen
— and —
Justin Malcolm and Jason Williams
Before: Justice M.M. Rahman
Heard: November 2, 3, 4, and 5, 2020
Reasons for judgment released on: November 18, 2020
Counsel
Robin Prihar — counsel for the Crown
Brian Crothers — counsel for Justin Malcolm
Harval Bassi — counsel for Jason Williams
RAHMAN J.:
1. Introduction
[1] The accused, Justin Malcolm and Jason Williams, are charged with robbery, and pointing and discharging a firearm. Mr. Malcolm also faces a charge of breaching a non-attendance and non-communication bail condition.
[2] The charges against them arise out of an incident inside and outside a bar in Mississauga on October 9, 2019. There is no issue that Rachel Van Koughnett was attacked by someone that night when she was working at the bar. Surveillance video of the bar's main entrance areas shows Ms Van Koughnett being violently taken to the ground by one person while a second person took her cell phone after it fell to the ground. Both men then rushed outside. There is also no issue that gunshots rang out somewhere outside the bar shortly after the altercation inside.
[3] The Crown alleges that Mr. Malcolm robbed Ms Van Koughnett of her cell phone and cash that night, and that he fired a gun at her after she had run outside trying to get her phone back. The Crown says that Mr. Williams helped Mr. Malcolm commit these offences. At the trial, Ms Van Koughnett identified Mr. Williams as the person on the video who took her iPhone after it fell on the floor during the assault. She did not identify the man who struck her, brought her to the ground, and shot at her in trial testimony. The Crown relies on one of the prior statements she gave to police, in November 2019, identifying Mr. Malcolm as that assailant. During the trial, I ruled that statement was admissible under the principled exception to the hearsay rule.
[4] The defence says that the Crown's case falls far short of proving the charges. Both Mr. Malcolm and Mr. Williams say that Ms Van Koughnett is not a reliable witness because inconsistent statements about the identity of her assailants. Ms Van Koughnett initially told police she did not know who attacked her. She also swore an affidavit about five months ago recanting her November 2019 identification of both Mr. Malcolm and Mr. Williams. The defence also says that Ms Van Koughnett's evidence about being shot at is unreliable because it is inconsistent with what other witnesses remember about the timing of the gunshots, and is inconsistent with the video evidence. They further argue that Ms Van Koughnett is not credible because she clearly fabricated the allegation about being shot at outside the bar.
[5] These reasons explain why I find that the Crown's evidence falls short of proving the charges. Before setting out my reasons for finding the accused not guilty, I will first explain my reasons for the mid-trial ruling admitting Ms Van Koughnett's prior statement under the principled exception to the hearsay rule. I will then summarize the evidence surrounding the attack on Ms Van Koughnett, and the gunshots heard outside the bar. Finally, I will explain my findings and conclusions on the trial proper, including my assessment of Ms Van Koughnett's evidence.
2. The K.G.B. Application
[6] At the outset of the trial, Crown counsel, Ms Prihar, alerted the court that Ms Van Koughnett had previously given inconsistent statements, and that she was unsure exactly what Ms Van Koughnett would say during her testimony. Ms Van Koughnett had already given three statements about what happened on the night in question.
2.1. The prior statements
[7] Ms Van Koughnett gave a video-recorded statement to police on October 10, 2019, the day after the incident. In that statement, she described the robbery but said she did not know the two men who robbed her. She also gave a video-recorded statement to police on November 21, 2019. Ms Van Koughnett had been contacted by police before giving the November statement and told that the police believed that she knew her assailants. In the November statement, she identified both Mr. Malcolm and Mr. Williams as the two men who robbed her, and said that she saw Mr. Malcolm shoot at her while she was outside the bar. Finally, on June 4, 2020, Ms Van Koughnett swore an affidavit saying that she had been mistaken in her November statement, and that she did not know the identity of the men who robbed her. Of these three prior statements, only the affidavit was under oath.
2.2. Trial and voir dire
[8] Early in her trial testimony, Ms Van Koughnett said that she only recognized Mr. Williams as one of the men who robbed her. She identified him as the man wearing the vest who picked up her phone just before running out of the bar. She testified that she did not know the other man. After Ms Van Koughnett had gone through the events of October 9, Ms Prihar applied (without opposition) to cross-examine her under s. 9(2) of the Canada Evidence Act, on her November police statement. After the cross-examination, Ms Prihar brought a K.G.B. application to have Ms Van Koughnett's November video statement admitted as evidence.
[9] The court then heard the rest of Ms Van Koughnett's evidence both as part of the K.G.B. voir dire and as part of the trial proper. She was cross-examined once on both proceedings. The parties also agreed that the court could consider the evidence of all other Crown witnesses as far as it was relevant to the substantive reliability of the November statement. The Crown also called a police officer, Cst. Ryan Olton, only on the K.G.B. application, to give recognition evidence to strengthen the Crown's case for the substantive reliability of the statement. All parties agreed that Cst. Olton's evidence was only admissible if his purported recognition of Mr. Malcolm and Mr. Williams passed the test for recognition evidence in R. v. Leaney.
[10] The defence opposed the K.G.B. application on the grounds that Ms Van Koughnett's evidence was inherently unreliable. The focus of the defence's attack was on the lack of substantive reliability of her police statement. The defence argued that the substance of Ms Van Koughnett's evidence was seriously undermined by the other Crown witnesses' accounts of what happened. In particular, the defence focussed on the discrepancy between Ms Van Koughnett's assertion that she was shot at while she was outside, and the other witnesses' evidence that they did not hear shots until Ms Van Koughnett had already gone back into the bar.
2.3. Analysis
[11] Before admitting hearsay evidence, a court must be satisfied that the proposed evidence meets the standard of threshold reliability. The Crown can establish threshold reliability by showing that the hearsay statement has sufficient procedural reliability or substantive reliability.
[12] A court may find procedural reliability where "there are adequate substitutes for testing the evidence," which provide "a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement." These procedural safeguards include a video recording of the statement, the presence of an oath or a warning about the consequences of lying, and some form of cross-examination, including the presence of the witness at trial.
[13] The Crown may also establish threshold reliability by establishing substantive reliability. Substantive reliability refers to the inherent trustworthiness of a statement because of sufficient circumstantial or evidentiary guarantees. In determining substantive reliability, a court may consider the circumstances in which the statement was made, and evidence that confirms or contradicts the statement. Before finding that a statement has sufficient substantive reliability, a court must be satisfied that the statement is so reliable that cross-examination would add little to the process.
[14] It is important to note that the Crown need not establish both procedural and substantive reliability to have a statement admitted under the principled exception. Rather, procedural and substantive reliability are alternative means to establish threshold reliability. If the Crown can establish one, the statement is admissible even if it cannot establish the other.
[15] In this case, I found that Ms Van Koughnett's November statement had sufficient procedural reliability. The two most important features of procedural reliability here are the video-recording and Ms Van Koughnett's availability to be cross-examined. A number of cases have recognized that the witness' availability for cross-examination is the most important factor supporting the admissibility of a prior inconsistent statement. That is especially so where, as here, the accused can conduct a meaningful cross-examination because the witness recalls making the statement, recalls the incident, and is willing to answer questions about it. Although Ms Van Koughnett's police statement was not under oath, I do not find the absence of an oath detracts from the statement's procedural reliability. As the Court of Appeal observed in R. v. Trieu, where a statement is video-recorded and the declarant is available for cross-examination, the oath's role in the procedural reliability assessment is a modest one. I am satisfied that Ms Van Koughnett understood that she was speaking to police about a serious matter. She was reporting to them that she had been the victim of a robbery and a shooting and that she feared for her life. She was providing the statement after police had asked her to speak to them again because they believed she was not being truthful. In these circumstances, the absence of an oath does not seriously affect the procedural reliability of her statement. This is especially so because her statement was recorded on video and she was present to be cross-examined on a statement that she remembered and acknowledged giving. It is possible to rationally evaluate the truth and accuracy of the statement.
[16] Because I was satisfied that the Crown had established threshold reliability of Ms Van Koughnett's November statement, I ruled that it was admissible. I also ruled that, along with the video recording and transcript of the statement, stills of the video recording that she had been shown during the statement, would also be exhibits on the trial.
3. Summary of the Trial Evidence
[17] The Crown's case relied heavily on video surveillance evidence both inside and outside the bar where the offences took place. Also, in addition to Ms Van Koughnett's evidence, the Crown also led evidence from two other employees of the bar, a patron at the bar, and a truck driver who was at a neighbouring business.
3.1. Video Surveillance Evidence
[18] As mentioned above, video surveillance evidence played a prominent role in this trial. The Crown relies on footage captured by two surveillance cameras, one inside the bar and one outside the bar. The Crown relies on the video inside the bar, showing the area of the main entrance, to explain how most of the attack on Ms Van Koughnett unfolded, and to confirm her account of the robbery. The Crown relies on the outside video to show how the men, alleged to be the accused, entered the bar shortly before the attack, and to show the events that took place after the attack when the assailants left the bar being pursued by Ms Van Koughnett. The Crown also says that the video inside the bar is of sufficient quality that it permits the court to compare the image of the man in the vest to Mr. Williams.
[19] Video surveillance at the bar's main entrance shows Ms Van Koughnett struggling with a man, alleged to be Mr. Malcolm, wearing what witnesses described as a grey hoodie. The man appears to pull Ms Van Koughnett down to the ground. As she falls to the ground, a cell phone slides across the floor. The second man, who is wearing a vest, picks up the cell phone. The Crown alleges that the second man is Mr. Williams. The first man quickly goes out the main door and the second man follows immediately behind him. Ms Van Koughnett grabs hold of the second man's clothing in an attempt to get her phone back. David Hall, a doorman at the bar, tries to intervene to help Ms Van Koughnett and follows the three outside.
[20] Video surveillance also captured some of what took place once the two men, Ms Van Koughnett, and Mr. Hall went outside. Ms Van Koughnett continues to hold onto the man alleged to be Mr. Williams, while the man alleged to be Mr. Malcolm walks ahead. Ms Van Koughnett is dragged on the ground for a few metres before letting go. The second man (with the vest) gets into an SUV parked almost completely out of the camera's range. Though it is not visible on video, there is no dispute that Ms Van Koughnett followed the man to the SUV and used her shoe to smash at its windows. Faisal Eweidah, a manager at the bar who had been in the parking lot, followed Ms Van Koughnett as he saw her pursuing the two men. Mr. Hall went to the back of the SUV to get its license plate number. The SUV eventually left its parking spot and drove away.
[21] The video shows Mr. Hall walking by himself back into the entrance of the bar. He is followed several seconds later by Ms Van Koughnett and Mr. Eweidah. Ms Van Koughnett goes into the front door of the bar just before Mr. Eweidah. At that point, Mr. Eweidah can be seen looking around while holding the door open. Mr. Eweidah testified that he believed he was looking around at this point because he had just heard gunshots.
3.2. Evidence about the gunshots
[22] The video surveillance cameras did not capture any audio. Therefore, all the evidence about the sound of gunshots came from four of the Crown's witness: Mr. Eweidah; Mohammed Hussein, a truck driver at a neighbouring business; Carlos Salcedo, a customer at the bar; and Ms Van Koughnett. The evidence about the timing of the gunshots varied between these witnesses.
[23] As just mentioned, Mr. Eweidah believed he heard three to four gunshots after the SUV had driven away. He testified that he believed he was in a vestibule at the main entrance of the bar, just inside the main outer door and a second set of inner doors. He testified the shots all happened within a minute or less than a minute. As mentioned above, Mr. Eweidah said that after he heard the shots, he looked out the door from side to side. In cross-examination, Mr. Eweidah said that Ms Van Koughnett was already inside the bar when he heard the shots.
[24] Mr. Hussein testified that he heard four shots in quick succession. He believed that Ms Van Koughnett and the others were about to go inside the bar when he heard the shots, although he acknowledged in cross-examination that she may have been inside the bar already.
[25] Carlos Salcedo testified that he heard six to seven shots in quick succession. He believed that the shots were fired after everyone had gone back inside the bar, and he was outside speaking with someone in the parking lot.
[26] Ms Van Koughnett's evidence about the timing of the gunshots, and who fired them, varied between her statements. I will review her evidence about the gunshots in more detail when I consider her credibility and reliability, below. For now, I simply observe that her testimony at trial is likely the most reliable of her accounts (although not the most reliable of the witnesses' accounts). She testified at trial that she heard three to four shots. She could not remember exactly where she was when the shots were fired, but she maintained that she was outside and not inside the bar. She acknowledged that it was possible she was going into the club as the shots were fired. She testified that upon hearing the shots "everyone" (presumably meaning at least herself and Mr. Eweidah who was with her) went back inside the bar.
[27] As between the witnesses, I find that Mr. Eweidah's evidence about the timing of the gunshots to be the most reliable. His testimony, that the gunshots happened just before the video shows him looking out the door, side to side, is the most reliable because it conforms to the objective video evidence. He is the only one who shows any reaction to the gunshots. No other person in the video shows any reaction to gunshots being fired. This is also consistent with Mr. Hall's evidence, because Mr. Hall did not hear gunshots and had gone back into the bar shortly before Mr. Eweidah and Ms Van Koughnett.
4. Issues on the Trial Proper
[28] The main issue at this trial was whether the Crown had proven the identity of the two men who robbed Ms Van Koughnett.
[29] Mr. Williams also took issue with whether he could be found guilty of robbery, should the evidence establish that he was the man in the vest. I can deal briefly with this issue. The man wearing the vest was a party to the robbery. It is clear from the evidence that he was involved. He entered only seconds before the attack on Ms Van Koughnett and he left immediately behind the man who assaulted her. He also picked up her cell phone as he left. I am satisfied that the only reasonable conclusion is that both men were involved in robbing Ms Van Koughnett. The first man wearing the grey hoodie was the principal assailant, because he started the attack on her by assaulting her and trying to take her phone. The second man, wearing the vest, was clearly there to help the first man. And he did help the first man by taking the phone. Both men can properly be regarded as robbers or assailants.
[30] I will now turn to the main issue of identity.
4.1. Identity of the Robbers
[31] The Crown relies principally on Ms Van Koughnett's evidence to prove the identity of the two men who robbed her. Because Ms Van Koughnett did not identify Mr. Malcolm with her in-court testimony, the Crown relies on her identification of him in her November police statement. The Crown acknowledges that without Ms Van Koughnett's identification in that statement, there is no other evidence identifying Mr. Malcolm as a participant in any of these offences.
[32] For Mr. Williams, the Crown relies on Ms Van Koughnett's testimony and the video surveillance footage from inside the bar. Ms Prihar, argues that the facial image of the man wearing the vest, who picked up Ms Van Koughnett's phone, is clear enough to identify Mr. Williams. Relying on the Supreme Court's decision in R. v. Nikolovski, Ms Prihar says that the court can compare Mr. Williams' appearance in court with the image on the video to identify Mr. Williams. Mr. Williams removed his mask briefly, without objection, to allow me to see his entire face.
[33] I will deal first with the Nikolovski identification.
4.1.1. The Nikolovski Identification
[34] A judge or a jury is entitled to decide the issue of identity based only on video or photographic evidence. In making this determination, it is essential to consider whether the video or photographic evidence is clear enough and shows the accused for a sufficient period of time to allow for a positive identification beyond a reasonable doubt.
[35] In addition to seeing the video surveillance footage when it was played several times in court, I have reviewed the footage on my own several times. While I can say that Mr. Williams' appearance is consistent with the man in the vest, I cannot say with any degree of certainty that it is the same person. In fact, I cannot even go so far as saying that it is probably Mr. Williams based on the video evidence alone. All I can say is that the man in the video shares some similar facial features with Mr. Williams. There is nothing unique enough about those facial features that would allow me to make a positive identification. The image is not clear enough for me to even compare the general facial resemblance. The person who walks by the camera does not face the camera directly. The video captured the man mainly in profile. Simply put, the brief footage of the man wearing the vest is not of sufficient quality or duration to permit a positive identification. Therefore, Ms Van Koughnett's evidence must carry the whole weight of the Crown's case identifying Mr. Malcolm and Mr. Williams as the men who robbed her. I now turn to an assessment of her evidence.
4.2. Ms Van Koughnett's identification of the robbers
[36] Ms Van Koughnett has been anything but consistent about the identity of her assailants. On its face that would seem to lead to the conclusion that she is an inherently unreliable witness and her evidence should be rejected out of hand. But credibility assessments in cases like this are more difficult than they might seem. The unfortunate reality in many cases is that witnesses are either untruthful, not forthcoming, or easily recant allegations because they fear retribution, or ostracizing, for accusing someone of a crime. Anyone with experience in the criminal justice system knows this reality. The very body of law dealing with K.G.B. statements illustrates how often people make accusations only to recant them once they enter the witness box in court. In most of those cases, the witness claims memory loss or simply suggests that the first statement was untrue. Some witnesses simply refuse to answer questions. Rarely does the witness explicitly provide reasons for recanting. In that respect, this case is different.
[37] Ms Van Koughnett gave a reason explaining why her in-court testimony identifying only Mr. Williams is different from her police statement identifying both Mr. Malcolm and Mr. Williams. Ms Van Koughnett said that she testified as she did because she had been threatened and was concerned about her safety. She said that she alone is responsible for ensuring her well-being and that is what influenced her testimony. Although she did not provide any details about these threats, the clear implication was that she believed she would suffer harm if she testified according to her November police statement. All of this is to say that Ms Van Koughnett's evidence cannot be automatically dismissed as unreliable just because she has said different things on different occasions. If she is telling the truth about being threatened, there may be a reason why she is holding the evidence from her prior statement hostage. However, where a witness has given inconsistent accounts, and where the Crown relies on a witness' unsworn prior inconsistent statement to prove its case, a court must exercise some caution in assessing that witness' evidence. A court may look to other evidence that confirms the witness' prior statement. In this case, the Crown contends that there is such evidence.
[38] Ms Prihar says that Ms Van Koughnett's evidence is reliable because it is consistent with independent evidence, including the video surveillance and the testimony of other witnesses. Ms Prihar notes that Ms Van Koughnett's initial description of the robbery and shooting is consistent with the video evidence. Even though she said that she did not know the men who robbed her, her description of the two men remained the same. Ms Prihar also relies on the circumstances of the robbery itself as supporting the Crown's theory that the two assailants knew Ms Van Koughnett, and that they targeted her for her phone. The two assailants only spent a brief period of time in the bar. The second man, alleged to be Mr. Williams, was only inside the bar for about 16 seconds before the attack on Ms Van Koughnett started. The men appeared to be after Ms Van Koughnett's phone, which she had cited as the motive for the robbery, claiming she had information on her phone that Mr. Malcolm considered damaging to his reputation. Finally, when the assault on Ms Van Koughnett started, a patron at the bar, Mr. Salcedo, heard the assailant say, "Call your man, call your man." Ms Prihar argues that this latter statement confirms what Ms Van Koughnett said in her November statement about there being bad blood between herself and Mr. Malcolm because she had a new boyfriend.
[39] Some of the circumstances Ms Prihar cites do support Ms Van Koughnett's evidence and, in particular, her November police statement. The circumstances do suggest a targeted attack, and one that seemed to be directed at her phone. It would also seem that one of the men knew Ms Van Koughnett because he was heard yelling "Call your man." The fact that Ms Van Koughnett's description of the robbery is consistent with the video evidence is less helpful in enhancing her credibility. Ms Van Koughnett believed that the events inside the bar had been captured on video. During both of her statements to police she believed that the interior camera had captured the events. Consequently, she would have no reason to be untruthful about what she knew would be on video. At most, the fact that she was able to recount the events in a way that matched the video might enhance the reliability of her memory somewhat, but it does not enhance her credibility.
[40] The real problem with Ms Van Koughnett's evidence lies in her account of what happened outside the bar. Ms Van Koughnett's evidence about the timing of the gunshots and who shot at her is quite problematic. Much of her account of events outside the bar is inconsistent with the other evidence (including the video evidence) and is also inconsistent between her statements.
[41] In her first police statement, the day after the incident, Ms Van Koughnett said she saw a man hiding behind a car shoot at her. She said that he fired three to four, or four to five, shots at her. She said that he shot at her while she was smashing the SUV's windows and that it caused her to "duck down." She said that he shot at her to stop her from smashing the windows. Ms Van Koughnett also said that as the assailants drove off, they fired another five to six shots in the air. As previously mentioned, she said she did not know who the men were. She also said that she was too far away to see the colour of the gun. She did not describe the gun at all. When the interviewing officer told her they found no shell casings, she appeared surprised and said "that's really fuckin' weird."
[42] In her November statement, Ms Van Koughnett identified Mr. Malcolm and Mr. Williams as her assailants. She said that Mr. Malcolm shot at her while he was hiding behind a car and that he fired five or six shots. She said that he was trying to murder her. She said that she decided at that point she was not going to die over a phone and ran inside. Despite her earlier statement that she could not see the gun, this time she said, "I remember the type of gun it is…the bullets [cartridge casings] stay in like the gun." When she was asked if she meant a revolver, she agreed. Ms Van Koughnett also mentioned for the first time that, when she held onto Mr. Williams, she felt a gun in his pocket and that caused her to let go of him.
[43] As I explained before, when she testified at trial, Ms Van Koughnett identified only Mr. Williams but not Mr. Malcolm. She again said that she felt a gun in Mr. Williams pocket as she grabbed his jacket. She said that the gunman fired three to four shots while hiding behind a car. She also said that he used a silver gun, but that she could not tell anything else about the gun. She testified that she couldn't remember where she was when the shots were fired and could not remember if it was while she was entering the club.
[44] The foregoing accounts have some significant inconsistencies, even putting aside Ms Van Koughnett's identification, or lack of identification, of Mr. Malcolm and Mr. Williams. Ms Van Koughnett's accounts of where she was when she says she was shot at are not consistent with the other evidence. As I explained above, it is apparent from all the evidence that gunshots did not go off while she was smashing the windows of the SUV. The video does not show anyone reacting to gunshots before Mr. Eweidah and Ms Van Koughnett re-enter the bar. Moreover, there were not two sets of gunshots (one directed at her, the other in the air) as she described in her first police statement. These discrepancies are concerning because Ms Van Koughnett gave a reason why she believed the gunman was shooting at her, which supported her locations. She said that whoever was trying to shoot at her was trying to get her to stop smashing the SUV (October statement), and was trying to murder her (November statement). These discrepancies might be explained by the traumatic nature of the event. However the timing of the gunshots is not the only thing Ms Van Koughnett is inconsistent about.
[45] The most concerning inconsistency is Ms Van Koughnett's description, or lack of description, of the gun and her ability to see it. In her first statement to police, she said she could not describe the gun because it was far away. During that interview, she learned that the police had not found any cartridge casings at the scene, and she remarked that was "weird." In her second statement to police, she said that the gun was a revolver, which also happens to be the type of handgun that does not eject cartridge casings when fired. Ms Van Koughnett only mentioned that the gun was a revolver after learning (in October) that the police had not found any cartridge casings at the scene. She did not mention it in October when she was told that there were no casings. Then, by the time of trial, Ms Van Koughnett could not describe the gun other than to say it was silver. This was despite her never having described its colour. These discrepancies in her evidence are significant. I also note that all of the inconsistencies in her accounts of what took place outside the bar are also concerning because, when she gave her police statements, she either did not believe or know that the police had video evidence of what happened outside the bar.
[46] In my view, the above problems significantly weaken the strength of Ms Van Koughnett's evidence. These are not minor inconsistencies on peripheral matters. These are inconsistencies that go to the heart of the allegations. They affect both her reliability and her credibility. As I explained in my ruling granting the Crown's K.G.B. application, Ms Van Koughnett knew she was speaking to the police about a significant matter. She was alleging she had been robbed and shot at. She would have known that she had to be accurate and truthful about what she told the police.
[47] The inconsistencies in her various accounts do not allow her evidence to safely carry the whole weight of the Crown's case. I would not go as far as saying that I reject Ms Van Koughnett's evidence entirely, or find her to have been testifying untruthfully. I do not accept the defence's submission that she is somehow playing a game or not taking the proceedings seriously. However, the Crown is relying completely on Ms Van Koughnett to prove who attacked her. Because of the flaws in her evidence I cannot rely on her evidence to the criminal standard of proof.
[48] Again, in making these finding about Ms Van Koughnett's evidence, I am mindful about her allegation that she had been threatened and that those threats have impacted what she has said since she gave her first statement to police up until testifying at trial. While I appreciate that Ms Van Koughnett said that she testified the way she did because she had been threatened, I do not have any details about the nature of the threats, exactly when she received them, in what form or from whom. The lack of any such details means that I cannot assess her testimony about those threats and how they have affected her decision to testify the way that she did and why they may be responsible for the problems that I have outlined above. I cannot assume that she is telling the truth about being threatened and I cannot find that she has been threatened without information about the threats, which would allow me to assess the truth of her testimony about them. Therefore, I cannot conclude that the alleged threats occurred and explain the flaws in her evidence. More importantly, while the alleged threats might provide a plausible explanation for Ms Van Koughnett refusing to identify Mr. Malcolm at trial, I have trouble seeing how they explain the problems with her evidence about seeing the shooter, being able to identify the gun, or being shot at while she was breaking the windows of the SUV.
[49] Consequently, I am unable to safely rely on Ms Van Koughnett's evidence identifying Mr. Malcolm and Mr. Williams.
5. Conclusion
[50] Because Ms Van Koughnett's evidence does not satisfy me of Mr. Malcolm and Mr. Williams' guilt beyond a reasonable doubt, I find them not guilty on all charges.
Released: November 18, 2020
Justice M.M. Rahman