Ontario Court of Justice
Date: 2025-02-28
Court File No.: Toronto 4810 998 24 4810
Between:
His Majesty the King
— and —
Rahjon Ceballo
Before Justice Christine Mainville
Heard on February 19-20, 2025
Reasons for Judgment released on February 28, 2025
Counsel:
Nicholas Burrell — counsel for the Crown
Pasquale Morabito — counsel for the accused
Reasons for Judgment
Mainville J.:
[1] On December 17, 2022, Teclemarian Berhan was assaulted as he exited his apartment building to meet his son-in-law, Tesfay Tesfamariam, who was waiting for him just outside the building in his car.
[2] Mr. Tesfamariam testified that he witnessed the assault on his father-in-law, aspects of which are caught on camera. Mr. Berhan did not testify. The two then drove around to locate and pursue the perpetrator who had fled the scene on foot. They also called 911. The police arrested Mr. Ceballo nearby.
[3] It is alleged that Mr. Ceballo is the person who assaulted Mr. Berhan, and that he did so with a butter knife which was recovered close to the scene of the incident. As a result, he is charged with one count of assault with a weapon.
[4] The main issue in this case is identity. Counsel on behalf of Mr. Ceballo submits that the Crown has not discharged its burden to prove beyond a reasonable doubt that Mr. Ceballo is the person who assaulted Mr. Berhan on December 17, 2022. He also submits that the fact that the assault involved a knife cannot be proved beyond a reasonable doubt.
Overview of the Evidence
[5] Mr. Tesfamariam testified that he went to pick up his father-in-law at the latter’s home around 7:30 or 8 pm. He later acknowledged that he may have been an hour off in terms of timing, and that he may have gone to pick him up around 8:30 pm. He recalled that it was before 9 pm. It was getting dark.
[6] Mr. Tesfamariam saw his father-in-law exit the building but then looked away, perhaps to look at his phone. When he looked back up, he next saw his father-in-law approaching the vehicle passenger door and a man coming from behind him. He could see the man from above his chest. The man was wearing a blue or dark hoodie. Mr. Tesfamariam then noticed the man do something to his father-in-law Mr. Berhan: it looked like he punched him as he approached him. Mr. Tesfamariam did a motion with his left hand, gesturing forward and backward with his left fist, to demonstrate what he witnessed. He saw the man make contact with Mr. Berhan, describing the area where contact was made as Mr. Berhan’s left chest, just below the heart, but pointing toward the abdomen and rib area. Mr. Tesfamariam was not sure whether he saw something in the man’s hand at that time.
[7] Mr. Tesfamariam was surprised and got out of the car to scare the man off. The man then came towards Mr. Tesfamariam who then saw that the man had a knife in his hand. The Crown did not ask him to describe this knife.
[8] After yelling at the man to stop, Mr. Tesfamariam got back inside his car and started driving off. His father-in-law was still going after the man, who began to walk away at a fast pace before starting to run. Mr. Tesfamariam told his father-in-law to stop and got him in the car.
[9] Mr. Tesfamariam asked his father-in-law if he was OK, and he said he was. He was wearing a winter jacket, so they did not notice any injury at that time. It is unclear whether they looked at Mr. Berhan’s skin, under his jacket and sweater at that time.
[10] The two began driving north on Mutual Street to follow the man. Mr. Tesfamariam observed the man going north on Mutual, towards Shuter Street. They lost track of him before locating him again as he crossed from the north side of Shuter Street, at the intersection of Church Street. At least, they spotted the person whom Mr. Tesfamariam believed to be the same man at that location.
[11] Mr. Tesfamariam made a U-turn and followed the man slowly as he returned to Mutual Street. The man returned all the way to 25 Mutual Street and stood in front of the building. At that time, Mr. Tesfamariam brought down his car window, waited to make eye-contact with the man, and took two pictures of him as he started coming towards the car.
[12] After taking the pictures, Mr. Tesfamariam says he continued to drive south on Mutual Street and turned left on Queen Street. He stopped at the traffic light and called 911. The police told him to remain in place until an officer came to speak with them. He did not see the perpetrator after driving off from 25 Mutual Street.
[13] Aside from Mr. Tesfamariam, I heard from Officer Doherty who was involved in Mr. Ceballo’s apprehension by the police.
[14] Officer Doherty testified that he and his partner received a radio call relating to a person with a knife, who was described as a Black male in his twenties, approximately 5’7 and of slim build, wearing a blue hoodie. The knife was described as a switchblade.
[15] At that time, he and his partner were directed to the corner of Church and Shuter Streets. As they approached, they were informed of a foot pursuit involving other officers and were directed to head east on Shuter. They did that and turned south on Mutual Street, where they observed parked police cars and the accused on the ground in the process of being arrested. Officer Doherty described that they did a westbound turn on Mutual Street to an entrance to a parking garage behind a building off that street.
[16] The parties filed an Agreed Statement of Facts confirming that the accused was arrested at about 9 pm on the west side of Mutual Street, after a police foot pursuit that went northbound on Dalhousie Street, which is one street west of Mutual Street. They then went eastbound on Shuter Street, and southbound on Mutual Street. The body worn camera footage of the accused’s apprehension by the police shows the parties in the garage laneway off Mutual Street.
[17] A butter knife was located on Mutual Street, near the site of the accused’s apprehension, around the same time.
[18] The accused did not testify or call evidence in his defence.
Principles to be Applied
[19] The accused is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of this offence beyond a reasonable doubt.
[20] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or lack of evidence. It is not enough for me to believe that the accused is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
[21] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.
[22] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external and internal consistency of the evidence; (d) the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (e) the witness’ demeanour while testifying.
Analysis
[23] I state at the outset that I found Mr. Tesfamariam to be a very credible witness. He was careful in his answers and made clear what he saw and did not see, what he recalled and did not recall.
[24] There were some reliability issues in particular as it related to the time at which this incident took place, but Mr. Tesfamariam gave the approximate time at which it occurred and admitted to the possibility of being an hour or so off. He did his best to tell the court the truth of what he recalled and provide an accurate picture of how things unfolded. There is no suggestion that his ability to perceive events that evening was impaired in any way. He was picking up his father-in-law to drive him home to stay with his kids while he drove one of his daughters to Mississauga for a late soccer game.
[25] I therefore accept his account of how the assault and subsequent events unfolded. These are in large part confirmed by photographs he took and video surveillance.
[26] The key issue however in this case is identity, and the perpetrator of this offence was not a person familiar to Mr. Tesfamariam. I must exercise caution when assessing his eye-witness identification evidence: see R. v. Walker, 2025 ONCA 19, at para. 21; R. v. A.W., 2024 ONCA 564, at paras. 26-27.
Identity
[27] There is no dispute that the accused before the court is the man seen in the arrest video and arrested by the police shortly after the incident. Officer Doherty also confirmed this to be the case.
[28] The identity issue relates to whether Mr. Ceballo is also the person who committed the assault, given that Mr. Tesfamariam and his father lost track of the perpetrator before he was ultimately apprehended by the police. Was the person they initially observed the person whom the police ultimately arrested in the vicinity?
[29] This is not a case where the alleged perpetrator was identified by Mr. Tesfamariam sometime after the offence, unconnected in time and place. The person was pursued and tracked by Mr. Tesfamariam to some extent and was seen in the vicinity moments after the assault took place, after Mr. Tesfamariam lost sight of him for a matter of minutes. Still, I must exercise caution regarding this type of identification evidence, in particular given that the perpetrator was a stranger to Mr. Tesfamariam. Mr. Tesfamariam also lost sight of the man prior to Mr. Ceballo’s arrest by the police a short time later, and he was not asked to identify the man in police custody.
[30] In resolving this issue, however, I am assisted by surveillance videos and photos taken by Mr. Tesfamariam during his endeavour to follow the perpetrator. I also have images of Mr. Ceballo on body worn camera upon his apprehension by the police that same evening.
[31] First, the perpetrator is seen on video going from the same building that Mr. Berhan exited from, 25 Mutual Street, to the location where the assault happened. It is clear that he is the perpetrator as he is captured going directly to Mr. Tesfamariam’s vehicle where Mr. Berhan was also headed and advancing directly behind Mr. Berhan. There are some agitated movements before the two are out of frame or not visible. A few moments later, the car starts edging forward and also exits the frame.
[32] The video aligns with Mr. Tesfamariam’s description of how the assault unfolded: he was seated in his car and a man arrived behind his father-in-law as he approached the vehicle and was about to get in. They were at the passenger side door which means that Mr. Tesfamariam had a view of the altercation through the window. The timing of when the video shows him starting to drive also aligns with his description of events.
[33] Just prior to exiting the building, the perpetrator including his face is depicted quite clearly on video. The images are of good quality and provide clear views of the man, his actions, and his clothing. He is dressed in a dark blue hoodie with no markings on it, with the exception of what appears to be a small white tag or mark on the left side of his chest. The hood is up, though you can still see the man’s face on video. He is a Black man with facial hair, a slim build and he appears to be in his twenties. He is also wearing blue jeans and black or dark running shoes. As the man walks through the building lobby, you can clearly see an object in his left hand that appears to be a knife.
[34] Mr. Tesfamariam described the man as Black with light skin, maybe 25 or 26 years old, wearing a blue sweater, jeans and running shoes, with a round face and short hair.
[35] I can certainly state that the man in the surveillance video resembles the accused. I am able to make such a comparison pursuant to the principles set out in R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 23.
[36] Mr. Tesfamariam testified that the man fled north on Mutual Street, and that he first lost track of him on Mutual as he approached Shuter Street. He did not know whether the man turned left or right on Shuter, but it appears that he turned off Mutual Street as that is how Mr. Tesfamariam lost sight of him. Mr. Tesfamariam opted to turn left on Shuter Street and was headed toward Church Street. He says he then located the man again, at Shuter and Church Street. Mr. Tesfamariam estimated that perhaps two to three minutes had passed since he had lost sight of the man. This is a short time after first losing sight of the man, and the man was located in proximity to where he was when Mr. Tesfamariam first lost sight of him.
[37] Mr. Tesfamariam then did a U-turn and began slowly following the man, who returned to the building at 25 Mutual Street. It is at this time that Mr. Tesfamariam stopped his car and took a couple pictures of the man as he began approaching the vehicle.
[38] One of the pictures in particular is fairly clear and depicts a man matching the description set out above. His appearance is also otherwise the same, though he has his hood down such that his short hair is visible. He also appears to be holding a knife in his hand, which very much resembles the item seen in the man’s hand earlier in the lobby video of 25 Mutual Street. It looks to be the same length, though this time it is being held in the man’s right hand. Mr. Tesfamariam also described at this time seeing what appeared to be a knife in the man’s hand. A slightly lighter shade is again seen in one spot on the man’s hoodie around his left chest.
[39] I am satisfied that the person in the pictures taken by Mr. Tesfamariam shortly before calling 911 is the same person as was seen earlier in the lobby video, and thus the person who committed the assault on Mr. Berhan.
[40] The picture of the man with what appears to be a knife is particularly telling. Again, the knife-like object in his hand matches the one seen in the lobby-area video of 25 Mutual Street: it appears to be the same size, length and colour. It also aligns with the butter knife located on the street a short distance from where the arrest took place, in proximity to these events.
[41] The fact that the man in the pictures taken by Mr. Tesfamariam is the same man seen on video at the scene of the assault is also confirmed by further video surveillance of the front exterior of 25 Mutual Street from that time period. Mr. Tesfamariam identified the video as representing the moment when he took pictures of the perpetrator. The man is seen walking up from the street and pushing a button for the entrance doors to the building to open. He then turns around to head back towards the street. Mr. Tesfamiriam’s car is seen on the street in the background. The man then starts to follow the car as it drives off, and he begins running behind it. The man can again be seen matching the above description.
[42] I find further confirmation for the fact that the person seen at this time is the perpetrator of the earlier offence, in the fact that he started running at this time. The man was also at the very same location where the offence took place, and where he had been seen exiting from when he committed the assault.
[43] Am I also able to conclude that this is the same person the police later arrested?
[44] Mr. Tesfamariam no longer had eyes on the perpetrator after taking the pictures at 25 Mutual Street. He testified that he drove south on Mutual, and that the perpetrator had begun following his vehicle. Mr. Tesfamariam called 911 after turning onto Queen Street.
[45] The Crown did not adduce evidence relating to the timing of this 911 call. Nor did it elicit any evidence from Officer Doherty relating to the timing of his response to this call. It was however agreed that the foot pursuit took place at approximately 8:59 pm. Officer Doherty’s evidence was that he proceeded to the scene of the incident when the call came in and was re-directed to this foot pursuit. The pursuit began on Dalhousie Street, one street west of Mutual Street, which also connects to Queen Street. Mr. Ceballo was arrested in the vicinity of 25 Mutual Street around 9 pm.
[46] The Crown did not prove the time at which Mr. Tesfamariam took the pictures of the perpetrator in front of 25 Mutual Street. While some videos of 25 Mutual Street from that time period were also put in evidence, the Crown did not prove that the time stamps on those videos were accurate.
[47] Mr. Tesfamariam testified that he went to pick up his father-in-law around 7:30 or 8:30 pm. He was certain that it was before 9 pm. I can infer that the 911 call he placed was shortly before Officer Doherty and other officers were dispatched to the scene, around which time the foot pursuit commenced, and thus that the pictures were taken by Mr. Tesfamariam shortly before 9 pm.
[48] The question ultimately is whether the person arrested by the police – and acknowledged to be Mr. Ceballo – is the same person that Mr. Tesfamariam had been tracking a short time earlier and that I accept was the perpetrator.
[49] Mr. Ceballo is seen on body worn camera footage during his arrest. He is wearing a dark blue hoodie and blue jeans. At one point when he is at the front of one of the police cars, it is possible to see a small white logo on his hoodie, on the left side of his chest. He has the same hair, facial hair, and skin tone as can be seen in the pictures from Mr. Tesfamariam and video images from the surveillance footage. His face and stature are readily visible on the body worn camera footage.
[50] I am again able to make my own observations and comparisons and accept that the person arrested – Mr. Ceballo – is the same person as the one seen earlier by Mr. Tesfamariam. Amongst other identifying characteristics, Mr. Ceballo’s eyes and facial features strike me as matching in all images filed before the court.
[51] While there was no knife in Mr. Ceballo’s possession upon his arrest, one was found nearby, on Mutual Street. The perpetrator was on Mutual Street both prior to and during the foot pursuit that led to Mr. Ceballo’s apprehension. As indicated, the butter knife that was located is consistent with the images of an object in the hand of the perpetrator.
[52] The use of a butter knife – as opposed to some other sharper knife or weapon – is also consistent with the minor injury to Mr. Berhan, if this injury was occasioned by this alleged assault. In other words, a larger knife would in all likelihood have occasioned a more serious injury, but the abrasion that was observed later that day on Mr. Berhan is not inconsistent with the use of a smaller and duller knife like a butter knife.
[53] For the sake of clarity, I do not rely on the abrasion on Mr. Berhan’s body as an indicator that the knife was used. (Indeed, it was unclear from the evidence where the abrasion was on Mr. Berhan – Mr. Tesfamariam only indicated that they observed this injury later that evening upon Mr. Berhan removing his jacket and lifting his sweater. The Crown did not seek to clarify where exactly the abrasion was on Mr. Berhan’s body.) Rather, I reference it to underscore that it does not detract from the suggestion that the butter knife was the weapon used in committing the assault. As such, not finding a knife on Mr. Ceballo upon his arrest does not detract from my finding that he was the person seen earlier by Mr. Tesfamariam and on surveillance.
[54] I am therefore satisfied beyond a reasonable doubt that Mr. Ceballo was the person who assaulted Mr. Berhan on December 17, 2022.
Other elements of the offence
[55] I am satisfied that there was an assault based on Mr. Tesfamariam’s account of witnessing contact being made between Mr. Ceballo and his father-in-law. This is supported by the video evidence.
[56] The accused is also seen on video heading directly to Mr. Berhan before he assaults him. The assault was clearly intentional.
[57] But has the Crown proven that the assault was committed with a weapon, that is, the alleged butter knife?
[58] I accept that the object seen on video in Mr. Ceballo’s hand is the butter knife that was later located near the scene of his arrest. This aligns with Mr. Tesfamariam’s testimony that he later saw a knife in the man’s hand. Though the witness did not describe the knife, the object seen on video in Mr. Ceballo’s hand does align in shape and size with a butter knife like the one that was located.
[59] There are, however, gaps in the evidence on this point. Mr. Tesfamariam did not see a knife or object in the man’s hand when the assaultive gesture was made – he only saw it subsequently. He never did describe the knife he witnessed. And while he motioned with his left hand when he demonstrated what he saw of the assault, he was never in fact asked what hand the man used, and how certain he was on this point. In the lobby video, as Mr. Ceballo is seen approaching the vehicle where the assault took place, the knife is seen in his left hand. Still, I cannot be sure that that was the hand with which he assaulted Mr. Berhan.
[60] Mr. Berhan did not testify at trial, such that I also cannot know what he felt when he was assaulted. And although a small abrasion was seen on Mr. Berhan’s skin later that evening, I do not know whether the location of this abrasion aligns with the assault that Mr. Tesfamariam witnessed. I also do not know from Mr. Berhan if he suffered this injury as a result of this assault or not. Ultimately, I am unable to use the abrasion to corroborate the use of a knife by Mr. Ceballo in assaulting Mr. Berhan.
[61] Still, the video footage is clear that when Mr. Ceballo approaches Mr. Berhan from behind, he has the knife in his hand. Mr. Tesfamariam also saw a knife in Mr. Ceballo’s hand almost immediately after the assault. While I cannot find that he used this knife on Mr. Berhan, section 267 of the Criminal Code provides that the offence of assault with a weapon is made out if, in committing an assault, a person “carries, uses or threatens to use a weapon or an imitation thereof”.
[62] I am convinced beyond a reasonable doubt that Mr. Ceballo assaulted Mr. Berhan with a butter knife in hand, and thus, while carrying a weapon.
[63] Indeed, “weapon” is defined in section 2 of the Code as “any thing used, designed to be used or intended for use … in causing death or injury to any person, or … for the purpose of threatening or intimidating the person”. While I have not found that Mr. Ceballo used the knife on Mr. Berhan in a way to cause him injury, given the circumstances in which he carried the butter knife and assaulted Mr. Berhan, I am satisfied that he at minimum used it as a means of threatening or intimidating the victim.
[64] He is therefore guilty as charged of assault with a weapon.
Released: February 28, 2025
Signed: Justice C. Mainville