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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Court File No.: 4815-998-19-Y50117

Date: November 26, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

N.H. and T.W.

Before: Justice P.N. Bourque

Reasons for Judgment

Released on November 26, 2020

Counsel:

• C. Igwe, for the Crown
• A. Goldkind, for N.H.
• B. Irvine, for T.W.

Judgment

BOURQUE J.:

Overview

[1] The defendants are young persons within the meaning of the Youth Criminal Justice Act. They both face a charge of robbery with a shotgun arising out of an incident on a residential street in the afternoon hours of February 24, 2019.

[2] The Crown alleges that T.W. walked up to the driver's side of a car while Nguon Tu was in the driver's seat. T.W. knocked on the window and asked for money while showing Tu a sawed-off shotgun. The defendant N.H. was near the car. A neighbour Ba Ho shouted out from across the street and both defendants fled. They were arrested later that day after a chase, and the defendant N.H. was in possession of a backpack, which had a shotgun inside.

[3] As the Crown's case unfolded, it appeared that the principle issue would be whether the Crown has proven beyond a reasonable doubt the identities of one or both of robbers. As the trial unfolded, this changed dramatically. At the conclusion of the Crown's case, and after I dismissed a motion for a directed verdict of acquittal, the defendant N.H. chose to testify. I will review his evidence further in detail, but in summary, he put himself and the co-defendant T.W. at the scene, and described that T.W. acted totally on his own, without any assistance from him or without any foreknowledge on his part.

Evidence of the Crown

Nguon Tu

[4] Nguon Tu is an elderly man of Vietnamese origin. On February 24, 2019 at about 2:00 p.m., he was getting into his car to go to the market. After starting his car, he heard a knock at his car window. He saw a person pointing to his hand and asking him to lower his window.

[5] The person then opened his jacket and lifted up a gun which the witness described as being cut off at the stock and the barrel. The person asked the witness to give him some money.

[6] At this moment, a person across the street yelled something and the witness heard a person from behind the car yell "run". The person at the door and the person behind the car then immediately ran away and went in the direction of a nearby church and then went out of sight.

[7] The witness gave the following description of the person at the car:

• Young person – skinny about 130 lbs
• Skin colour of Spanish – between white and black
• Male – about 1 meter 65 tall
• Black jacket with an inside garment like a "running shoe", with a grey hoodie

[8] After reviewing his statement, the witness added that the person had some covering on his mouth and head, which was black. He described the pants as being "like running shoes".

[9] The witness gave the following description of the person at the back of the car:

• Male, the same skin colour as the man who pointed the gun (he changed this evidence in cross-examination and suggested that the colours were not the same)
• A bit shorter – a little bit fatter than the person who pointed the gun
• A black hoodie

[10] The witness did not describe any other features of either person and no further description of clothing.

[11] In the course of cross-examination, it was highly problematic that he was able to see anything of the person behind except for some clothing. He changed his evidence with regard to the skin colour.

[12] Ultimately, while he was trying to be as helpful as he could, he could not give any reliable evidence about the person beside or behind the car with the exception of the description of the black coat, and the fact they were young men. The witness also drew a very rough picture of the gun that he said that he saw, which was marked as Exhibit 1.

Ba Ho

[13] Ba Ho is the brother-in-law of the last witness. He was in his house across the street and happened to be watching out and saw a man beside the left side of his relative's car, and another person at the passenger door side (he was a hundred per cent certain of this).

[14] He saw his relative lean over to the right in the seat of his car and his attention was focused there. He believed at that point that his relative may have been in some danger so he steps out of his front door and shouted: "What are you doing?". The person on the passenger side began to run away and the person on the driver's side of the car followed about 10 to 15 meters behind.

[15] The witness did not get any description of any clothing, but he believed he saw a back pack (he could not tell the colour) on the person who was beside the driver's side. In his statement to the police, he described both of them as "black guys". He believed the person on the driver's side was 18 or 19 or younger and was 5'5" or 5'6" and weighed about 130 or 135 lbs, and that person had dark skin.

Gregg Hoffman

[16] Gregg Hoffman was qualified by me as a firearms expert. He was tasked to do a firearms analysis of a firearm seized by Toronto Police. It was described by the officer as a Savage 30T pump action 12 gauge shotgun. By the pictures filed, it had been extensively altered and it had the barrel sawed down to 265 mm and there was no stock, just metal bits behind the trigger mechanism. The entire weapon was 474 mm in length. It is shown in photos filed as Exhibits 10 "C", and 10 "D".

[17] The officer test fired the firearm 3 times. Filed was his certificate indicating that it met the definition of a firearm and by its small resulting size met the definition of a prohibited firearm. Continuity of the exhibit was proven by PC Christopher Ito.

Guillermo Gini

[18] Guillermo Gini is a Toronto Officer who was dispatched to 106 Shoreham. He took a statement from the complainant and then canvassed the area for any private CCTV footage.

[19] Produced and shown as Exhibit 7 was footage from a CCTV camera located in the entranceway, the elevator, and the stairwell of 215 Gosford. Three segments were placed in evidence.

Entranceway Footage

[20] It begins at 14:02:03 and it shows two men walking up to the elevators. There is no clear view of their faces. The one man has a white backpack on the front of his chest. He is wearing a black jacket with some writing on the front. The second man is wearing black jacket with the top portion a light colour. It is a pulled-up hoodie.

Elevator Footage

[21] It begins at 14:02:35 and shows one person with a black jacket and white hoodie. The face is more visible, and it appears to be one of the persons who came into the elevator. The man exits the elevator at the 8th floor along with another man who has the backpack and is the second person who got into the elevator.

Stairwell Footage

[22] At 15:15:05, two men are seen going down the stairs and out the door leading outside the building. The one man has a white backpack (on his back) and is wearing a black hoodie with bold white writing on the front. His face is more visible, and he is clearly a white person. The second man also comes down the stairs and is similar in general look and dress to the second man who got onto the elevator in the scene noted above.

Alexander Brown

[23] Alexander Brown is a Toronto police officer. He was patrolling Queen Street near Parliament in Toronto at 16:14 when he saw a vehicle drive past the open doors of a street car. He put on his emergency lights and siren and pursued. The vehicle stopped for a moment but then sped off up Parliament St. The officer did not actively pursue. Several moments later he received a call from PC Johnson that a car matching the description was in an accident nearby. The officer attended the scene and joined Johnson in pursuit of person(s) who had left the car. He came upon the defendant T.W. who was against a gate and arrested him. He identified the defendant in court.

Andrew Johnson

[24] Andrew Johnson is a Toronto police officer who was on duty near Parliament Street in Toronto. He heard on dispatch that a vehicle was coming up Parliament and so he blocked one lane. A vehicle approached and past him but then crashed shortly up the road. The officer saw one man get out of the car so he chased him on foot up a laneway. The officer eventually stopped the man whom he described as white. The officer handed him over to Officer Brown and had no further dealings with the man.

Sharoon Gill

[25] Sharoon Gill is a Toronto Police officer of two years experience. He was at the scene of the arrest of the defendant T.W. He identified him. He was described as male white some 5'10" tall. The clothing was seized.

Ito Sukman

[26] Ito Sukman is a 14 year veteran of the Toronto Police. He was on patrol in a cruiser in the area and responded to the dispatch and eventually joined in the chase of the two men who left the scene of the car crash. He eventually saw another officer running after the defendant N.H.. He stated that N.H. fell down after being touched by the officer and a backpack fell off his back. The defendant N.H. was arrested.

[27] The following items were found on the defendant N.H.:

• The firearm which was subsequently tested
• A balaclava (which was on top of his head at the time of arrest)
• Gloves
• Black/grey jacket
• Black baseball cap
• Grey backpack
• The defendant was described as heavyset

Evidence of the Defence

[28] After I rejected a motion for non-suit on behalf of the defendant T.W. the defendant N.H. elected to call evidence and he took the witness stand.

N.H.

[29] N.H. is 16 years old. He knows the defendant T.W. He stated that he and T.W. were together that day and they happened to be walking down the street at 106 Shoreham Road. N.H. stated that without any discussion together, T.W. went up to the car that Nguon Tu had just occupied. He stated that he was standing on the sidewalk. He stated that he did not hear what was said between T.W. and Tu. He stated that he saw the firearm when T.W. pulled it out.

[30] When he heard the man across the street yell out, he simply began to run and he states he was 10 to 15 meters in front of T.W., who also ran.

[31] He stated that they went into the apartment at Gosford Drive and he said that it was him and the defendant on the CCTV exhibits.

[32] He stated that when they were downtown later that day, that when the car crashed and he knew the police were in pursuit, he decided to run as he had a court appearance the next day on another matter. N.H. stated that at some point, he decided to stop running and he put down the backpack and the officer told him to lay on the ground and he did so.

[33] With regard to the firearm and the backpack, N.H. stated that he had the backpack (it was his) when they were at 106 Shoreham Drive. He gave it to T.W. so he could put his hoodie in it. At that point, T.W. was carrying the backpack and he can be seen carrying it on the CCTV exhibit. The witness stated that when he got out of the car after the crash, he picked up the backpack and took it with him. He stated that he did not know it was in the backpack. He said that he did not feel the weight of the firearm.

[34] In cross-examination, the witness denied that the gun came from him and did not accept the suggestion that T.W., could not have had the gun as he had been living in a "high security" group home. He stated that they went into the apartment building for about 10 minutes and when he asked T.W. about what had happened, T.W. told him that it was some sort of joke. He handed the backpack to T.W. but stated he did not see him put the gun in it and did not know he was "hiding" his coat. He stated that they went downtown on public transit and for at least 30 minutes he was carrying the backpack. He denied that he could feel the weight of the gun in the backpack. He said they went all the way downtown to go to a specific place to play basketball (although he could not remember exactly where it was).

Analysis

[35] As an initial matter, the defendant N.H. was found to be in possession of the firearm. It was not at the scene of the offence. He was not charged with any firearm offences. He was only charged with being a party to the robbery (with the firearm) at 106 Shoreham.

[36] The defendant T.W. was charged with several weapons offences and with breach of probation and breach of a weapons prohibition.

[37] To convict any of these two defendants on any of these charges I must be satisfied beyond a reasonable doubt that they (individually or collectively) were at the scene of the crime at 14:00 at 106 Shoreham Drive. I must also be satisfied as to the role of each of the parties.

[38] If I accept the evidence of N.H. (at least on this point), then the role of T.W. is clear. He was standing beside the driver's side door of a man and while asking him for money, he revealed the existence of a sawed-off shotgun on his person. That was an attempted robbery while in possession of a firearm or imitation firearm. Several hours later a firearm was found in the possession of N.H. (while in the company of T.W.) and that firearm, was very similar in description to the firearm in his possession. Indeed, N.H. says it is the same device.

[39] To be satisfied beyond a reasonable that N.H. was a party to the offence he says was committed by T.W., I must be satisfied that they were either carrying out a common purpose, or he in some manner aided and abetted the defendant T.W. in the attempted robbery of Nguon Tu.

[40] Reasonable doubt is set out in the case of R. v. Lifchus, [1997] 3 S.C.R. 320:

Reasonable Doubt

The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence:

• Reasonable doubt is not a doubt based upon sympathy or prejudice
• Rather, it is based upon reason and common sense
• It is logically connected to the evidence or absence of evidence
• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt
• More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guilty must acquit

[41] If I accept the evidence of the defendant N.H., which puts himself and his co-defendant T.W., at the scene of the crime, then the identification issue is largely moot, and it is only a question of my reviewing all of the evidence that I do accept to determine the role of each of the parties. As stated in R. v. Vander-Beek, [1971] S.C.R. 260, on a joint trial, the evidence of a co-accused is evidence for/against any other accused to whom it relates.

[42] I must assess the evidence of N.H., as it applies to him free of any suggestion that it is inherently suspect because of his or her status as an accused. However, I must be mindful of the right of the co-accused T.W. to have taken into consideration by me factors that could undermine the credibility and reliability of the evidence of N.H., as it relates to the co-accused T.W.

[43] I find several inconsistencies in N.H.'s evidence (I will refer to them below), but they do not, in my opinion, conflict with the Crown's evidence in any meaningful way as to who was at the scene. T.W.'s assertion that N.H. was lying about the presence of T.W. at the scene in order to protect someone else, is not realistic. No one else was charged with any of these offences. A conviction or an acquittal of T.W. would not put anyone else in jeopardy. The difficulty of the witnesses at the scene to provide consistent and detailed descriptions of both defendants would be relevant to my final determination of identity absent N.H.'s evidence. It is not so inconsistent as to have me doubt N.H.'s assertion that he and T.W. were at the scene and carried out the acts (subject to some discrepancies noted below) generally as described by the civilian witnesses.

[44] Having found that I accept the assertion by N.H. that both he and T.W. were at the scene of the offence, and as it is consistent with the civilian witnesses description of the events, I find that T.W. did the following:

[45] He was standing beside the driver's side door of a car and asked the driver for money. He revealed the existence of a sawed-off shotgun on his person. He is therefore guilty of an attempted robbery with a firearm. (Count #1)

• (i) He was masked while committing the above offence (Count 3)
• (ii) He was carrying a firearm in a careless manner (Count 4)
• (iii) He was possessing a sawed-off Savage Arms Corp Model 301 shotgun with the stock removed, for a purpose dangerous to the public peace (Count 7)
• (iv) He was in breach of the probation order of February 7, 2019 in that he possessed a weapon as defined by the Criminal Code and committed a breach of the peace (Counts 10 and 11)

[46] I must also, in assessing the total case against N.H., be mindful of the principle as contained in R. v. W.D., in that as he has given evidence, which if accepted would provide him with a defence to the charge against him, that if I accept his evidence, I must acquit him, and even if I don't accept it, I must decide if it leaves me with a reasonable doubt (and then must also acquit). Even if I reject his exculpatory evidence, I must, based upon the whole of the evidence that I do accept, decide if the Crown's case is proven against him beyond a reasonable doubt. Finally, I must decide whether I can accept all, none, or a portion of his evidence.

[47] While I find him to be an earnest witness, and was not seriously shaken in cross-examination, either by the Crown or by the co-accused, I find that while I am prepared to accept the bulk of his evidence, especially as it relates to his attendance at the scene with his co-accused, I find that some aspects of his assertion that he was not part of the robbery to be troublesome, namely:

(a) I find that the evidence of Ba Ho places N.H. at the side of the car and not behind and on the sidewalk as he suggested. I realize that Nguon Tu believed that the other man was behind the car, but in his evidence, he did not actually look at the man until the parties were starting to leave the scene. I accept that N.H. was, at least for part of the time, while the other man was interacting with Nguon Tu, at the right side of the car. That would, in and of itself, suggest that there was a joint enterprise in this attempted robbery.

(b) With regard to evidence of Nguon Tu that someone yelled "run", that is not confirmed by Ba Ho and I do not accept it. I do however accept that both defendants immediately ran after hearing the shouting from Ba Ho. Counsel for N.H. asserts that I cannot be sure that the reason he ran was not because he was shocked by the actions of T.W.. I disagree. He had some brief opportunity to run before the words were shouted out. He did not do so. I accept that while N.H. may have been in front of T.W., they clearly came together in the short time it took them to go to the apartment building at Gosford Street.

(c) With regard to the two occasions when N.H. ran, I accept that while both can be some consciousness of guilt, I must be careful and assess other explanations. He is young. When he was being chased by the police, he knew he would be arrested and the fact he had an outstanding charge may have compelled him to make the wrong decision and run. I believe however, that it is telling that he ran on two occasions. It is not conclusive of guilt, but it is, in its totality, some evidence of guilt.

(d) I accept the further evidence of N.H. that the persons in the video at the apartment, are him and his co-accused T.W. While I accept that I cannot identify them independently on the CCTV evidence from the apartment, I find that it is totally consistent with the evidence of N.H.

[48] It was suggested by T.W.'s counsel, in cross-examination, that the firearm was N.H.'s, and that it would have been impossible for T.W. to have had the weapon, as he resided in a group home. While the defendant N.H. agreed that T.W. did reside in a group home, he denied that the firearm was his, and suggested that T.W. had been at his mother's home for some time.

[49] I accept that the backpack initially held by N.H., came into the possession of T.W., by the time that they got to the apartment. The firearm clearly got into the backpack at some point. N.H. professes to be unaware that the gun was placed in the backpack at all, and gives an explanation that T.W. simply put some of his outer clothing in it, and had told him that he had "gotten rid of the gun". With regard to T.W. getting rid of the gun, it would appear from all the evidence that both T.W. and N.H. were in each other's company from the time of the incident to the time of their arrest. How could T.W. have disposed of the gun without N.H. seeing it?

[50] I find this to be unbelievable. It is more logical to assume that the firearm was put into the backpack with the knowledge of both defendants. While it is not a smart thing to maintain possession of the weapon throughout the day, there are a host of reasons why they would want to keep it. I will not speculate but not knowing the gun was in the backpack was only one possible explanation.

[51] In any event, by the time N.H. was in possession of the backpack during the ride downtown on transit and after the car collision, I find that the extra "heft" of the backpack with the firearm inside, would have been noticeable. The firearms officer indicated that the firearm was a sawed-off shotgun with the wooden stock removed. It consisted of metal firing parts with a total length of 474 MM. I specifically do not accept his assertion, that for the whole time he had the backpack on his person, he was not aware that the firearm was in the backpack. I believe that I can go further, and having found that N.H. had the firearm in his backpack for a significant period of time after the event, that is also some evidence that he likely had possession of the firearm or at least knowledge of it, before the attempted robbery.

[52] In conclusion, with regard to the evidence of N.H., I accept it insofar as it places himself and the defendant T.W. at the scene of the crime and on the CCTV footage in the apartment building. I accept it that it places T.W. at the driver's side of the automobile while the events are transpiring. I do not accept it insofar as it attempts to insulate him from the actions of T.W. at the driver's side window.

[53] I specifically find that he went up to the passenger's side of the car and it is a reasonable inference that, in doing so, he was providing or was going to provide some assistance to T.W. in this robbery. I find that he only began to leave the scene when the person across the street shouted out. I find that the totality of his actions after the fact are consistent with a person who has engaged in a joint enterprise and the carrying of the backpack with knowledge of the firearm inside was aiding the defendant T.W.. In rejecting his evidence on these issues, I find I am not left in a reasonable doubt by his evidence.

[54] I therefore find the defendant N.H., along with T.W. guilty of the offence of attempted robbery with a firearm of Nguon Tu on February 24, 2019 (count 1).

Signed: "Justice P.N. Bourque"

Released: November 26, 2020