ONTARIO COURT OF JUSTICE
DATE: 2025-02-14
COURT FILE No.: Toronto 4810 998 24 48106134-00
BETWEEN:
His Majesty the King
— AND —
Dwumo Amankwaah
Before Justice Christine Mainville
Heard on January 13-17, 2025
Reasons for Judgment released on February 14, 2025
Sandra Duffey — counsel for the Crown
Ben ElzingaCheng — counsel for the accused
Mainville J.:
[1] On February 9, 2024, Carlos Alfaro was stabbed four times in the back, in a makeshift shelter set up in a public field near Jane and Finch, where people gathered to eat and socialize.
[2] Mr. Amankwaah is charged with attempted murder, assault with a weapon, and failure to comply with probation in relation to this stabbing.
[3] The Crown no longer seeks a conviction on the count of attempted murder. Rather, it submits that I may find Mr. Amankwaah guilty of the lesser included offence of aggravated assault.
[4] The defence agrees that attempted murder is not made out on the evidence adduced at trial but argues that the count as stipulated does not allow for a finding of guilt on the charge of aggravated assault. Counsel does recognize that I may however consider the lesser included offence of assault causing bodily harm. I will return to this issue below.
[5] The main issue in this case is identity. Counsel on behalf of Mr. Amankwaah submits that the Crown has not discharged its burden to prove beyond a reasonable doubt that Mr. Amankwaah is the person who stabbed Carlos Alfaro on February 9, 2024.
[6] There is direct evidence implicating Mr. Amankwaah as the perpetrator in this case because Mr. Alfaro testified that he was the person who stabbed him. However, given numerous frailties with Mr. Alfaro’s identification, which I will return to below, this case is better viewed as a circumstantial case of identity.
[7] Aside from Mr. Alfaro’s eyewitness identification, the Crown relies on several circumstances to argue that Mr. Amankwaah is beyond doubt the person who attacked Mr. Alfaro. This includes: other witnesses placing Mr. Amankwaah at the scene of the crime earlier in the day and connecting him to Mr. Alfaro; video surveillance of the accused around the time of the offence; statements made by the accused to the police, and that I have previously deemed voluntary and thus admissible; and items seized in Mr. Amankwaah’s apartment by the police shortly after the stabbing – most significantly, a knife on which DNA belonging to Mr. Alfaro was located.
Overview of the Evidence
[8] Mr. Alfaro called 911 at 8:20 pm on February 9, 2024. He had been stabbed a few minutes prior, a short distance away, and walked to the location where he placed the call.
[9] The stabbing occurred in an encampment or what was termed a “little house” by some witnesses. It was built by Luis Morales and Antonio Soto-Gonzales – both of whom testified at trial – to provide a gathering space for some in the community. There was no lock on the premises, nor was entry restricted in any way. People who attended the encampment were generally people known to Mr. Morales and Mr. Soto-Gonzales, such as Mr. Alfaro. They would generally eat and drink there, and just relax. Two separate spaces inside the shelter had a couch. There was a fire pit to barbecue meat. One individual who testified at trial, Samson Obaga, has also been residing in the shelter for the past two or so years. The evidence is that he works full time but sleeps in the shelter.
[10] Mr. Amankwaah resides with his mother in an apartment complex near the encampment. There was evidence that he occasionally spent time at this encampment.
[11] The police began investigating Mr. Amankwaah after Mr. Alfaro described his attacker and after Mr. Morales and Mr. Soto-Gonzales provided additional information about Mr. Amankwaah. I heard evidence from all three at this trial.
[12] I also heard from police officers who obtained video surveillance from Mr. Amankwaah’s apartment building and searched the area on the evening in question, as well as from officers who executed a search warrant at his residence and who were involved in his arrest. The police seized clothing believed to have been worn by the accused at the time of the stabbing, as well as a small knife and other items.
[13] Finally, I heard evidence from an expert in forensic biology from the Centre of Forensic Sciences regarding a speck of blood found on a black sweater seized from Mr. Amankwaah’s apartment, and DNA found on the seized knife.
[14] I note at the outset that given the expert’s testimony, I am unable to draw anything from the speck of blood found on the sweater. There was no way to tell whether the speck was animal blood (such as from meat) or human blood, nor how long it had been on the sweater. There was such a small amount of blood that it was not observable to the human eye and a second sample – that is, even a second speck – could not be obtained from the fabric. It could not be further tested.
[15] As for the DNA profile relating to some substance found on the knife, the expert could not determine what the substance was, other than stating it was not blood. No blood was found on the knife. However, a grease-like marking found on the blade of the knife was tested and it contained a mixture of two DNA profiles. One of them belonged to Mr. Alfaro – that is, it is more than one trillion times more likely that the DNA originates from Carlos Alfaro than from an unknown person unrelated to Carlos Alfaro. As the expert explained, the range starts at 1 and is capped at “greater than one trillion”: this represents the highest level of certainty they provide that the DNA belongs to Mr. Alfaro as opposed to some other person who is not related to him.
[16] The second DNA contributor was not compared to a known DNA sample to identify a contributor and pursuant to an Agreed Statement of Facts, I am to draw no inferences or conclusions from that second DNA profile.
[17] The accused did not testify or call evidence in his defence.
Principles to be Applied
[18] 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 these offences beyond a reasonable doubt.
[19] 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.
[20] The Crown may prove the case by way of direct or circumstantial evidence, or both. I must ultimately consider the evidence as a whole.
[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 first consider the evidence of the civilian witnesses in this case, including that of the victim, Mr. Alfaro.
Carlos Alfaro
[24] Mr. Alfaro states that on February 9th, he went to the little house around 7:30 pm. Luis, Antonio and the person he identified as Mr. Amankwaah were already there. He went into the room with a multicoloured sofa, sat down on the sofa and opened a can of beer. In direct examination, he indicated that he had been cleaning his apartment that day and this was his first beer of the day.
[25] Luis promptly left, and Antonio sat in the other room with Mr. Amankwaah who then left for 10 to 15 minutes before returning. Mr. Alfaro was sitting by himself in the room with the multicoloured couch, until around 8:05 or 8:10 pm.
[26] Around that time, the man he identified as Mr. Amankwaah returned and stabbed him. Mr. Alfaro says he was sitting on the couch when the man came in and immediately lunged at him and repeatedly stabbed him in the back. When asked how he could have been stabbed in the back when he was in a sitting position, he explained that the man stabbed him with an overhand motion, overtop him. He was stabbed toward his left shoulder.
[27] No words were exchanged, and the man immediately departed. Mr. Alfaro then left the encampment and walked to Jane and Finch, where he called 911. He estimated that that walk took him about five minutes. This would situate the stabbing as having taken place sometime between 8:05 and 8:15 pm.
[28] Mr. Alfaro first told the police that he did not know the name of the man who stabbed him, but he had seen him earlier in the day at the encampment, along with his friends Antonio Soto-Gonzales and Luis Morales.
[29] In court, Mr. Alfaro described the perpetrator as tall, thin and Black, with a dark shade of black skin. He did not know his name nor any nickname for him, but had seen him around, though infrequently. Aside from seeing him earlier on the day of the stabbing, he had seen him the week prior at the encampment. Mr. Alfaro had heard the man talk before, but not with him. They had never had a conversation, nor had he had any prior conflict with him. In cross-examination, however, he relayed two prior instances where Mr. Amankwaah would have said something to him. He identified Mr. Amankwaah in the prisoner’s box.
[30] I have significant concerns regarding Mr. Alfaro’s reliability, and to some extent his credibility.
[31] Mr. Alfaro was adamant that he only had part of one beer at the encampment, and at most four beers during the day as he cleaned his apartment. He initially denied in examination-in-chief having consumed any alcohol that day beyond the one beer in the shelter.
[32] The parties agree that Mr. Alfaro’s blood alcohol concentration at the hospital later that night was 238 mg of alcohol in 100 mL of blood, approximately three times the legal limit for operating a conveyance. Based on this reading and general concerns regarding Mr. Alfaro’s credibility and reliability, I do not accept his evidence regarding how much he had to drink that night. He was far more intoxicated than he testified to.
[33] Mr. Alfaro repeatedly minimized his alcohol consumption and state of intoxication. He admitted in cross-examination that he could have had three to four beers at home after denying having consumed anything more than the beer he started drinking at 7:30 pm. He then insisted that he could not have had more than the four and a bit he finally admitted to consuming that day, denying it could have been six or seven.
[34] I find that he similarly minimized his consumption of alcohol in relation to an incident that happened on a different date involving Mr. Obaga – the individual who lives in the shelter – shortly after the stabbing, in the context of which he was captured on video after the police got involved.
[35] The other civilian witnesses testified to Mr. Alfaro’s general habit of consuming alcohol and Mr. Alfaro himself acknowledged to not-infrequently drinking far more than he says he did on these two occasions. In my assessment, based on this evidence, the video evidence and the blood alcohol evidence, his estimates of how much he had to drink on these two occasions are unreliable, and he was not trying to testify in a candid manner on the issue.
[36] The fact that Mr. Alfaro consumed more alcohol than he was prepared to admit calls into question the reliability of his account of the day, including of the stabbing. It also signals the need for me to be prudent in assessing his evidence given his efforts to make his observations – including, potentially, his identification of the accused – appear more reliable than they in fact were.
[37] On the first point, the reliability of his account, Mr. Alfaro denied being at the encampment earlier in the day, as testified to by Antonio and Luis. He also acknowledged in cross-examination that he never told the police that Luis was at the encampment when he arrived there that night.
[38] Mr. Alfaro further testified to his recollection that the man repeatedly stabbed him in quick succession. He demonstrated the man’s action in doing so. Yet he acknowledged in cross-examination that he told the police he had only been stabbed once. He explained that he initially thought this because of how quick the motions were. He only later realized, upon seeing his injuries, that he had been stabbed several times.
[39] I accept that he would have been confused and in a state of shock at the time, such that he misperceived how many times he was stabbed. I cannot however accept as reliable his recollection of seeing the man repeatedly stabbing him in quick succession. This appears to be an inference he drew after the fact that may have impacted his recollection of events. Indeed, even when the police pointed out that there was more than one area of injury on his back, he was insistent that he had only been stabbed once.
[40] But the concerns I have are not limited to reliability concerns. In my assessment, Mr. Alfaro’s evidence was at times intended to persuade the court that his recollection is more certain than it in fact is.
[41] For instance, Mr. Alfaro testified to having seen the knife used to stab him, stating it was not so big and estimating a length of about six to eight inches. In cross-examination, however, he acknowledged telling the police that he thought it could be a knife, but he did not see the weapon because it was dark.
[42] More significantly, Mr. Alfaro claimed at trial that there was a candle lighting the room where the stabbing took place – which would have impacted his ability to see the perpetrator. He never mentioned this to the police, though he may not have been specifically asked about lighting. Still, he was not able to point to any candle in the pictures taken of the scene, and the other civilian witnesses who spend a significant amount of time at the shelter testified that there is no candle there.
[43] Ultimately, I do not accept that there was a candle, nor do I accept that Mr. Alfaro saw the knife.
[44] That is not to say that I give no credence to his ability to have seen the perpetrator to some extent and to have recognized the person.
[45] First, in terms of lighting and opportunity to see, although the witnesses acknowledged how dark it was at night in the room where Mr. Alfaro was stabbed, Mr. Alfaro said that the man removed the plastic to enter the space where he was, such that he was able to see him because it was a bit lighter outside the room. This aligns with the pictures filed in evidence. Indeed, the room with the multi-coloured couch has a roof, and it was after dark in the winter. But the other area of the shelter, behind the opening to the room, is not covered and could let in some light, including after dark given some artificial lighting in the surrounding area.
[46] I also accept that Mr. Alfaro was awake when he was stabbed. Mr. Soto-Gonzales testified that despite Mr. Alfaro drinking significantly, he had never seen him fall asleep in the encampment. Mr. Morales’ evidence regarding how drunk Mr. Alfaro gets also suggested he would not pass out from drinking at the encampment.
[47] Second, although I must exercise the usual caution that applies to identification evidence given that recognition evidence is merely a form of identification evidence, triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence: R. v. Walker, 2025 ONCA 19, at paras. 38-39.
[48] Here, there were no unique characteristics attributable to the perpetrator Mr. Alfaro witnessed. His description of the perpetrator was vague: tall, thin, dark black skin. But as stated in Walker, at para. 18, “[i]t is notorious that a witness who recognizes another person will base their recognition not only on the details they can identify and describe in testimony, but also on details they have unconsciously observed, or that cannot realistically be identified or articulated in testimony”. Despite having been stated in a different context, this helps explain how Mr. Alfaro may have been able to identify Mr. Amankwaah but be unable to properly articulate how.
[49] While the accused and Mr. Alfaro did not know each other very well, I accept – based not only on Mr. Alfaro’s evidence but on that of the other civilian witnesses – that they were acquainted and had seen each other shortly before the incident.
[50] Though I am not prepared to accept with Mr. Alfaro’s level of certainty that he recognized Mr. Amankwaah that night, I do accept that he got a glance at the perpetrator (albeit a quick one in the dark, and while he was in a state of intoxication), such that he tentatively recognized Mr. Amankwaah. Stated differently, I accept that he believed Mr. Amankwaah to be the perpetrator based on his observations of the person that night – that is, that the perpetrator resembled Mr. Amankwaah. His recognition of the perpetrator, as relayed in vague terms to the police shortly after the incident, carries some but not much weight in the analysis.
Luis Morales and Antonio Soto-Gonzales
[51] Luis Morales resides near the encampment and spends a fair bit of time there. He testified that he does not know Carlos Alfaro very well, but that Carlos comes around and hangs around them a fair bit.
[52] Luis recalls working at the Fresco on February 9th and going to the encampment with Antonio after work around 12:00 or 12:30 pm. Carlos arrived very shortly thereafter, and they ate together.
[53] Luis testified that after Carlos arrived, a person he identified as Nana came by. He identified Nana as the person in the prisoner dock and saluted him. Luis said he had known Nana a long time and that he was a good friend. He wished him a happy new year in court.
[54] Luis testified that Carlos was drinking that day. He agreed that when Carlos drinks, he becomes aggressive and wants to pick a fight. By this, Mr. Morales meant that Mr. Alfaro – who is gay – gets too close to other men who do not welcome it.
[55] Mr. Morales testified that he did not see Nana drink that day. He stated that Nana is a good boy and doesn’t drink much.
[56] Later, after they had eaten, Carlos left, then Nana left. He did not witness any argument or fight. Luis and Antonio subsequently left, around 3:30 pm. Luis testified he did not see Carlos again that day.
[57] Finally, Luis confirmed that a person named Samson Obaga was living in the shelter at the time. His recollection was that Mr. Obaga was only there at nighttime because he was working in the factory, and he only returns from the factory around 11 pm or midnight. He testified that Mr. Obaga does not like being touched by any man or any gay man.
[58] Antonio Soto-Gonzales testified that Carlos is a friend from the neighbourhood whom he has known for about five years.
[59] On February 9th, he first saw Carlos after he finished work, around 12:30 pm. He went to the encampment with Luis, and Carlos arrived shortly after. Carlos was drinking, and Antonio started doing the same.
[60] Antonio later saw the person he knows as Nana. He identified this person in court as Mr. Amankwaah. He stated he saw him after Carlos had left. Antonio then left with Nana to buy some marijuana. He does not recall what time it was, but it was still light out. He then returned to the shack with Nana. No one else was there at that time.
[61] Antonio later saw Carlos again, when it was getting dark. Carlos returned to the shack, as did Luis. Nana then left after they had drunk and had the smokes. Antonio then left, and then Carlos left. It was still daytime when Carlos returned.
[62] Antonio was high and fell asleep on the grey couch after Luis and Nana left. He later woke up, and once again saw Carlos there, on the multicoloured couch – he had come back. He never saw Nana return once he had left. Antonio then got up and left. He could not recall what time it was but stated it would have been after 6 pm.
[63] Antonio witnessed what he described as only a very small argument between Carlos and Nana, as a result of Carlos seemingly sitting right next to Nana. It was very quick, nothing of much significance, and they separated. This was in the area of the multicoloured couch.
[64] Antonio was feeling a bit dizzy and went home. He testified that Carlos was a bit drunk that day and that when he is drunk, he becomes aggressive – he will try to kiss you. That is the reason Antonio left and went home. Antonio could not recall how much Carlos had to drink but stated that at one point, Carlos left and went drinking at the corner near the No Frills, then came back with some beer and was drinking by himself. When Antonio woke up and saw Carlos in the shack, Carlos was sitting and drinking on the multi-coloured couch by himself, listening to music.
[65] As for Samson Obaga, Antonio also testified that he was working that day and believed that he would return from work around 2 am.
[66] No doubt, the evidence of Mr. Alfaro, Mr. Morales and Mr. Soto-Gonzales does not align as it relates to the timing of when they and Nana found themselves in the shelter on February 9th. All had been drinking. Mr. Alfaro testified that Luis was already quite drunk when he attended the encampment. And Mr. Soto-Gonzales stated that Luis was quite high – that they had smoked about four joints and drank about eight beers each. He felt dizzy and went home.
[67] Nevertheless, I accept their collective recollection that the accused was at the shelter earlier in the day, along with Mr. Alfaro. Certainly, alcohol and drugs, as well as the passage of time, has impacted their recollections to varying degrees, and I am cautious about the reliability of their evidence. But I accept that Mr. Morales and Mr. Soto-Gonzales did their best to tell the court the truth about what they recall of the day in question. They were credible and had no incentive to support Carlos in his recollection vis-à-vis the accused. They were neutral as between the two and, if anything, had more of a liking for the accused than for Mr. Alfaro.
[68] I would not however place any weight on the details of their evidence regarding the timing of their interactions with, and observations of, the accused and Mr. Alfaro that day, including how these interactions unfolded. But I accept that they saw both at the shelter at the same time earlier that day. They were confident in that assertion and their memory of the day was canvassed that very night by the police. This is not merely something they now claim to recall from a year ago, in respect of a day that would blend in with any other.
[69] By contrast, I reject Mr. Alfaro’s evidence that he was at home cleaning his apartment that day, and his evidence regarding his interactions or lack thereof at the encampment on the day in question.
Identification of the Accused as Nana
[70] Neither Mr. Alfaro, Mr. Morales nor Mr. Soto-Gonzales knew the accused’s name. They knew him from the neighbourhood and identified him in court. The latter two referred to him as Nana.
[71] In his statement to the police, the accused confirmed that some people call him Nana, though he does not like that. He does not go by that name, but it is a nickname people call him. He perceives that it is to make fun of him.
[72] Indeed, he stated that he had looked up the meaning of the term a couple months prior and it means “a fool”. He added that “[t]hat’s somebody else’s name that they were always teasing me with”, and that he didn’t know what their issue is. He never clarified who he meant by “they”.
[73] Nevertheless, Mr. Amankwaah’s statement to the police confirms Mr. Morales and Mr. Soto-Gonzales’ identification of Mr. Amankwaah as Nana, that is, the person they saw at the encampment earlier in the day.
Surveillance Evidence
[74] The Crown also introduced in evidence surveillance footage from Mr. Amankwaah’s apartment building showing him coming and going from his residence to the area where the encampment is located right around the time of the stabbing.
[75] First, I have no doubt that the person in the surveillance videos is Mr. Amankwaah. During the police interview, Mr. Amankwaah was shown a couple stills from the surveillance footage the police had by then just obtained. While he denied being the person in the first still he was shown, he acknowledged he was the person on a second still, explaining that he was just doing laundry.
[76] Despite his initial denial, I am confident that the same person is tracked throughout the video footage introduced at trial. The surveillance covers a limited period of time between 8:00 and 8:35 pm, and the movements of the person are tracked through the various video clips: they align. For instance, the person is seen waiting for the elevator, then inside the elevator, then on the floor where they have exited. In the beginning, they are wearing the same clothes, dressed all in black with a distinct textured pattern and buttons on the sweater, and sporting a ball cap with lettering on it and gloves with distinct characteristics. Some matching items were recovered from Mr. Amankwaah’s apartment.
[77] The images are of good quality and provide clear views of the person, their actions, and their clothing. Certainly, the man in the surveillance videos looks like Mr. Amankwaah. I am able to make such a comparison pursuant to the principles set out in R. v. Nikolovski, 1996 SCC 158, para. 23. The man on surveillance can also be tracked going from and to the 7th floor, which is the floor on which Mr. Amankwaah resides.
[78] Further, after returning inside the apartment building, the man pushes the elevator button before instead turning the corner and continuing on to the laundry room. There, he does not put anything in the wash or retrieve anything – rather, he appears to be checking on laundry that is already in a machine. He then returns to the elevator and makes his way up to the 7th floor. He arrives there around 8:14 pm. At about 8:30 pm, he returns to the laundry room from the 7th floor in different clothing, including beige pants and a different hat. Despite the change of clothes, I am able to infer that it is the same person. He walks to the elevator from the same end of the hallway on the 7th floor as he did earlier. In the laundry room, he retrieves clothing from a washing machine in the same location as the one he was checking earlier, and places it in a dryer before returning upstairs to the 7th floor. His face is seen in some instances.
[79] It is without a doubt the same person that Mr. Amankwaah identified as himself on the video still who is first tracked going outside from the 7th floor around 8:03 pm, and who returns inside the apartment building at around 8:11 pm. The person is wearing the same clothing as in the still that Mr. Amankwaah identified.
[80] Based on the above and on Mr. Amankwaah’s admission, I find that the person tracked throughout the various surveillance videos is Mr. Amankwaah.
[81] The diagram of the area that was put in evidence shows that the hydro field where the encampment is located is adjacent to the accused’s apartment building. The encampment is also located closer to the building within that field. It would not have taken very long to walk to the encampment and return to the building.
[82] The timing tightly corresponds to the time at which Mr. Alfaro was stabbed – on his evidence and corroborated by the timing of the 911 call, between 8:05 and 8:15 pm. Right around that time, Mr. Amankwaah is seen walking southwest, in the direction of the hydro field. When he returns from that area, he is empty handed. He does put a hand in his pocket but he is not carrying anything that would suggest that he went out to make a purchase or anything of the sort. This timing is very compelling, as is the fact that Mr. Amankwaah changed out of his clothes immediately upon returning to his apartment unit.
DNA Evidence
[83] Of clear import is the knife located in Mr. Amankwaah’s apartment, on which Mr. Alfaro’s DNA was located.
[84] Mr. Amankwaah resides alone with his mother, as he acknowledged in his statement to the police. Their residence is a one-bedroom apartment. The knife was located next to a bed made up just behind the couch in the living room area of the apartment. It was alongside manly articles of clothing and shoes, and near other seized items including a ball cap, sweater and gloves resembling what Mr. Amankwaah was seen wearing on the video surveillance. His resume was also located on a shelf on the other side of the bed. I infer from the whole of the evidence that this was the bed on which he slept – for all intents and purposes, his bedroom.
[85] When questioned about a knife the police located by his bed, the accused told the police that he has a knife for cutting oranges and apples and everything when he’s in his home. This statement confirms that he owned a knife used for slicing – which is consistent with the small Betty Crocker kitchen knife, of the kind used for slicing such things as fruits and vegetables, that was located near the mattress inside his apartment. That is the only knife the police appear to have located in the apartment: there were no knives in the kitchen area, nor any that the police located in areas where knives would not typically be found. The knife seized had a plastic cover protecting the blade of the knife, which would make it safer to carry around without cutting oneself.
[86] As set out above, there was DNA on the knife that is clearly that of Mr. Alfaro. While no blood was found on the knife, the expert’s evidence was that depending on how a knife was washed, some DNA – indeed some blood – could still remain. The Crown’s theory is that while the blood was washed off, some of Mr. Alfaro’s DNA – from some other unknown bodily source – remained on the knife.
[87] Considering the whole of the evidence, I accept that there is no other plausible explanation for Mr. Alfaro’s DNA being on the blade of a knife located inside Mr. Amankwaah’s apartment, where he resides alone with his mother, than the one put forward by the Crown. The two were not friends and Mr. Alfaro had not visited that apartment. Nor is there any plausible scenario of DNA transference onto the blade of the knife found in Mr. Amankwaah’s apartment. Even if the DNA profile did not emanate from blood, it remains very compelling evidence of guilt.
Samson Obaga
[88] Mr. Obaga’s name came up during trial as a potential third-party suspect, given the evidence that he resided in the shelter at the time and is also a tall and slender black man, though he is older than the accused.
[89] Mr. Obaga was subsequently located and testified at this trial. He denied any involvement and I deemed his evidence very credible.
[90] Mr. Obaga identified the accused as someone he recognized, placing him at the encampment on occasion. His best recollection was that he would have been working on February 9, 2024, around the time of the stabbing, pursuant to his usual schedule.
[91] Both Mr. Morales and Mr. Soto-Gonzales believed that Mr. Obaga had been working that day, and did not reference his presence at the encampment throughout their accounting of the events of the day. Mr. Alfaro was also recalled to address the issue and denied that Mr. Obaga could have been the perpetrator.
[92] Certainly, I heard evidence that anyone could access the encampment and that many people occasionally attended there. I also accept that others, including Mr. Obaga, appeared to have had some animus toward Mr. Alfaro, not liking when he got close to other men when he became intoxicated. And Mr. Alfaro was intoxicated that day.
[93] But the question is whether the Crown has proven, to the exclusion of any other reasonable inference, that the perpetrator was Mr. Amankwaah: R. v. Villaroman, 2016 SCC 33, at para. 30. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond a reasonable doubt standard. Inferences consistent with innocence do not have to arise from proven facts. But inferences other than guilt must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. The Crown may need to disprove other reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. 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: Villaroman, at paras. 30, 35-38.
[94] One additional consideration here is that Mr. Alfaro was sitting at the farthest end of the shelter and would not have been visible to passersby. Someone passing by would not have known of his presence there, unless they had been there earlier themselves or had otherwise been informed that he was there. This certainly does not exclude the possibility that someone other than Mr. Amankwaah, Mr. Morales or Mr. Soto-Gonzales entered the shelter and stabbed Mr. Alfaro, but it does diminish it.
Conclusion on Identity
[95] Taking into account each of the above circumstances, in particular the DNA evidence combined with the surveillance footage, I can come to no other reasonable conclusion than Mr. Amankwaah’s guilt as the author of the stabbing. Together, and factoring in what I will call Mr. Alfaro’s tentative identification of the accused as the one who stabbed him, the only reasonable inference is that the accused is the person who stabbed Mr. Alfaro shortly before 8:15 pm on the night in question.
Other Elements of the Offences Charged
[96] The repeated stabbing with a knife was clearly intentional. The charge of assault with a weapon is therefore made out and a finding of guilt will be made on count two.
[97] The Crown has also proven that Mr. Amankwaah was bound by a probationary term that he not possess any weapons. Mr. Amankwaah conveyed knowledge of this probationary term in his statement to the police.
[98] Given my finding that Mr. Amankwaah stabbed Mr. Alfaro on February 9, 2024, it is clear that the Crown has also proven that Mr. Amankwaah used a knife as a weapon, in breach of that condition.
[99] The Crown has accordingly proven count three, the failure to comply with probation, beyond a reasonable doubt.
[100] This leaves count one, attempted murder. The defence acknowledges that if I find that Mr. Amankwaah stabbed Mr. Alfaro, the charge of assault causing bodily harm is also properly made out and is included in the offence of attempted murder. I must first however turn to the issue of whether the offence of aggravated assault is also included, as contended by the Crown.
Lesser Included Offence to Attempted Murder
[101] The attempt murder charge that was laid particularizes the offence as having been committed “by stabbing”.
[102] The defence argues that, based on R. v. MacKinnon, 2021 ONSC 4763, paras. 769-770, the charge must also include the way in which the assault is said to be aggravated in nature, that is, the prohibited consequence, by including the words “wounding”, “maiming”, “disfiguring” or “endangering life”. See also R. v. D.G., 2024 ONCJ 510, paras. 115-116.
[103] The Crown argues that the offence here was committed by “wounding”. Wounding means to break, cut, pierce, or tear the skin or some other part of the body in a way that is more than trifling, fleeting or minor, such as a scratch: R. v. Brown, 2021 ONCA 678, paras. 23-25, citing Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015); MacKinnon, at para. 770. The defence accepts that the evidence makes out wounding but argues that the accused – based on how the charge was particularized – did not have fair notice that he could be convicted of the charge of aggravated assault by wounding.
[104] I agree with the Crown that the charge as particularized allows me to consider aggravated assault as a lesser and included offence.
[105] It is fair to say that aggravated assault is not always an included offence to attempt murder. Attempt murder can be committed in any number of ways, not all of which would involve an assault that wounds, maims, disfigures or endangers life.
[106] In MacKinnon, the attempt murder charge was particularized as “by stabbing and thereby wound, maim, or endanger his life” and as such, Justice Copeland found that aggravated assault was a lesser included offence. While her reasons clearly imply that the words “and thereby wound, maim, or endanger his life” were important to this finding, they do not directly address the issue I am contending with and do not state that that particular wording is necessarily required. Nor does R. v. Pelletier, 2012 ONCA 566, para. 111, on which Justice Copeland relies.
[107] In Pelletier, at para. 126, Watt J.A. amended the count of attempted murder by adding immediately after “while using a firearm”, the phrase “by shooting him with a gun, thereby wounding him”. But there is no indication that that is the only way the count could be particularized to constitute a lesser included offence. Rather, Justice Watt stated that for aggravated assault to be included in the count of attempt murder, what is necessary is that the count “specify the means used to commit the offence and … contain other apt words of description”: Pelletier, at para. 111.
[108] The latter phrase comes from R. v. Harmer and Miller (1977), 1976 ONCA 570, 33 C.C.C. (2d) 17, at p. 19, cited in Simpson, at p. 135, and is the ultimate test where the lesser offence is not included by the wording of the statute itself. See also Simpson, at p. 143.
[109] The means used – here, “by stabbing” – is certainly a requirement. But does “other apt words of description” necessarily include at least one of the prohibited consequences set out in s. 268 of the Criminal Code?
[110] As stated by the Supreme Court in R. v. Simpson (No. 2), (1981) ONCA 3284, 58 C.C.C. (2d) 122 at 134, “the offence said to be included must form such an apparent and essential constituent of the offence charged that the accused on reading the indictment will have adequate notice that he is required to meet, not only the offence charged, but also the specific offences included”. It added, at page 135, that “the description of the offence in the enactment creating it may be amplified in the indictment by describing the manner in which the offence was committed so that the description of the offence in the indictment imports included offences not contained in the offence as described in the enactment creating it” [emphasis added].
[111] Of note, the mens rea of aggravated assault does not require proof of an intent to maim, wound or disfigure. Rather, the Crown must prove objective foresight of bodily harm: R. v. Godin, 1994 SCC 97, [1994] 2 S.C.R. 484.
[112] In my view, then, the issue turns on whether the accused had fair notice that by alleging that he stabbed Carlos Alfaro, this would necessarily include an allegation that he wounded him. See: Simpson, at pp. 136-37, where the Court also references the “good working rule” that “[i]f the whole offence charged can be committed without committing another offence, that other offence is not included.” See also: R. v. Tenthorey, 2021 ONCA 324.
[113] The Crown relies on R. v. Allard, 1990 QCCA 3036 and R. v. DeSousa, 2016 ONSC 2745, paras. 84-88, for the proposition that where the means by which the attempted murder is said to have been committed is particularized, aggravated assault is a lesser included offence. In Allard, like here, this was particularized as “by stabbing”.
[114] In both cases, however, the indictment also specifically referenced an aggravated assault (or “voies de fait graves”, in Allard). This alleviated any concerns about fair notice to the accused.
[115] R. v. S.R., 2008 ONSC 35680, paras. 95 and 99, however, also supports the proposition that specifying the means will suffice. In that case, the court acquitted on attempt murder but convicted on the lesser included offence of aggravated assault where the charge was particularized as “by attempting to push her in front of a subway train”. The court held that the “assault, in causing her to lose her balance near the edge of the platform as the train was approaching, clearly endangered her life”. There was no specific reference to endangering life in the charge as particularized. See also DeSousa, at para. 87.
[116] One way to ask the question in this case is: could a person stab someone and not cause a cut or piercing of the skin or other body part? In my view, the only reasonable answer is no. While there may then be a factual determination as to whether the cut or piercing is one that is minor, fleeting or trifling in nature, there can be no stabbing of a person (in contrast to “stabbing at” someone) that would not occasion a cut or piercing in some way. An injury occasioned by stabbing is after all typically referred to as a “stab wound”.
[117] As stated in DeSousa, at para. 85, what is essential is that the description of the offence be sufficient to alert the accused to the included offence of aggravated assault. In my view, the accused in this case would have been so alerted by the inclusion of the words “by stabbing” in the charge of attempted murder. I therefore accept that aggravated assault is a lesser offence that is included in the count as charged.
[118] While this is conceded, I received pictures and medical records relating to Mr. Alfaro’s injuries and accept that the four perforations of his skin, which are neither minor nor trifling, meet the definition of wounding that applies to this offence.
[119] Given the nature of the stabbing, the mental element of objective foresight of bodily harm is also clearly made out on the evidence in this case.
[120] I therefore find Mr. Amankwaah not guilty of attempted murder but guilty of the lesser included offence of aggravated assault on count one.
[121] Aggravated assault is the more serious charge of the two assaults that Mr. Amankwaah is guilty of. I therefore propose to stay the charge of assault with a weapon pursuant to the principle set out in Kienapple.
Released: February 14, 2025
Signed: Justice C. Mainville