COURT FILE NO.: CRIMJP3515/09

DATE: 20120425

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

L. Di Giulio, for the Crown

• and -

KENNETH GOBIN

B. Pearson, for the Defence

Defendant

HEARD: April 17-20, 2012

REASONS FOR JUDGMENT

Hill J.

INTRODUCTION

[1] Kenneth Gobin pled not guilty to charges or robbery, having his face masked with intent to commit robbery, and use of an imitation firearm while committing robbery.

[2] The trial commenced with a voir dire to determine the admissibility of the accused’s videotaped statement to one of the investigating officers. The statement was ruled voluntary and admissible: 2012 ONSC 2372. Following the ruling, the parties agreed that the evidence heard and exhibits produced on the voir dire would be admissible on the trial itself.

[3] The prosecution, having called seven police officers to testify on the voir dire, called one further witness, Christopher Tran, a co-accused whose case was disposed of in 2009.

[4] The victim of the robbery, Ms. Rachel Chatlani, did not testify at trial. She was about to give birth. Counsel agreed upon the evidence she would give if called to testify at trial.

[5] Mr. Gobin testified on his own behalf.

THE VICTIM’S ACCOUNT

[6] On August 5, 2007, Ms. Chatlani, a 27-year-old teacher, drove her white Toyota RAV4 vehicle (licence plate #AZRM 835) from Woodbridge to her residence in Mississauga arriving home at about 12:50 a.m. She parked in the driveway and exited her vehicle. She heard a door slam behind her.

[7] The victim turned and observed two male parties. One came up behind her, pointed a gun, and said, “Give me everything you have”. She saw a second male getting into the passenger side of her vehicle. She gave up her purse containing her wallet and other items and surrendered her vehicle keys. She then ran into her house.

[8] Asked to describe the two suspects the complainant provided these descriptions:

1. male Asian, possibly Philippines, 20 years, 5’8”-5’10”, skinny, short, dark hair, handkerchief covering face, no accent

2. male Asian, short, 20 years, average build, bandana on face, possibly grey, possibly shaved head.

[9] According to Ms. Chatlani, the gun suspect #1 pointed at her was black and rectangular in shape like a semi-automatic.

THE ACCOMPLICE’S TESTIMONY

[10] Chris Tran, born December 25, 1990, has a prior criminal record:

March 31, 2008 - fail to comply with recognizance 12 months’ probation

March 6, 2009 - robbery 5 months’

• use imitation firearm to commit robbery 7 months’ (con-

current terms of

deferred custody,

s.51 Y.C.J.A.)

June 14, 2011 - robbery (home invasion) credit for 347 days

pre-sentence

custody, and 4

years’ incarceration

& a life-time

weapons prohibition

ban

June 30, 2011 - possession of a C.D.S.A. 10 days consecutive

Schedule I substance

The 2009 record entry relates to the robbery for which Kenneth Gobin was charged. Tran pleaded guilty to those charges in Youth Court.

[11] Mr. Tran provided a videotaped statement to the police the day he was arrested. Mr. Tran testified here as an in-custody witness. He informed the court that he had received no promises regarding the testimony he was to give at the accused’s trial.

[12] Mr. Tran testified that on one occasion, prior to August 5, 2007, he had stolen a vehicle for a man called Frank. Frank was an individual who paid for stolen vehicles.

[13] Mr. Tran informed the court that prior to August 5, 2007 he had known the accused for two to five months. They had an alright relationship and were good friends. While he had seen the accused more than twice prior to August 5, he could not say how many times.

[14] Mr. Tran testified that Kenneth Decomarmond was a “good” friend too. He was a better friend that the accused. He had known him a long time. They resided in the same apartment building in August 2007.

[15] The witness testified that on August 5, 2007 he was in the company of the accused and Decomarmond. They drove to the Colossus Movie Theatre in Woodbridge. They went there looking to steal a car for Frank. He had agreed to do so with the accused. The plan was to steal a car, park it at a given address, and “wait on some money”. The accused may have been smoking marihuana in the car while they waited.

[16] Mr. Tran testified that he observed a woman come out of the theatre with her boyfriend and enter a white Toyota RAV4. That was one of the vehicles discussed – the type of new car which would pay more money. As a woman, the driver would be an “easy target”. With Decomarmond driving, they followed the RAV4. The driver dropped off her boyfriend and proceeded to her house in Mississauga where she pulled into the driveway.

[17] On Tran’s evidence, the “time had to be right”. He and the accused exited the accused’s mother’s vehicle and Decomarmond drove away. Tran had a black-coloured replica handgun. It was either in his hand or on his waist. On his evidence, the accused had a replica firearm as well. He had seen the accused with the firearm on his lap at a point prior to the robbery. He could not say where the accused’s gun was on the approach to the RAV4, which was taller than he was. He Iast saw the gun on the accused’s waist. Mr. Tran could not recall whether the accused was wearing a bandana. Asked whether he was wearing a bandana, Mr. Tran replied that he had one around his neck and perhaps over his face – in his words, he “should have”. Mr. Tran informed the court that he accused approached the driver’s side of the RAV4 and the “robbery took place”. The accused did “most of the talking” while he went to the passenger side of the victim’s vehicle. On the witness’ evidence, “we” asked for the vehicle keys. The victim threw her purse and keys into the RAV4.

[18] The victim was “totally frightened” and ran into her house. They drove off in the stolen vehicle with the accused driving. At a point, the accused said that he should drive. He agreed and they switched seats. He drove on Highway #401 and after about fifteen minutes formed the view that they were being followed by an “unmarked car”. He took the Lawrence Avenue exit and headed for the Weston Road/Lawrence Avenue area stopping at one point to ask for directions. The intent was to leave the car in an apartment building parking lot in that area and report-in the stolen car’s location. In speaking of the agreement with the accused, the witness stated, “we were on common ground to do this”.

[19] Mr. Tran testified that as the unmarked car kept up with them, he elected to drive into an apartment building parking lot on his right. On his recall, police cars arrived and eventually there were about twenty police officers. The police had drawn guns. He exited the RAV4 leaving his firearm under the driver’s seat. The accused got out as well. Although Tran had last seen the accused with his firearm on his waist he could not say where it was when they exited the stolen vehicle.

[20] Mr. Tran informed the court that his arrest was scary. He was 16 years of age. Police guns were pointed at him. He was thrown down with a policeman’s knee in his back as he lay on the pavement with his face squished to the ground. The accused was thrown to the ground and injured – his chin bled. According to the witness, the accused and he were beaten up – they were handled roughly as they had guns. He felt he needed to cooperate with the police.

[21] Mr. Tran testified that he was scared when he gave his statement. He feared what his mother would say. He knew he was in a lot of trouble and wouldn’t be able to talk his way out of it. He nevertheless tried to negotiate out of the “wear disguise” charge with the police interviewer, Constable Callan, but the officer was unable to promise anything.

[22] Mr. Tran argued that in his videotaped statement to the police he said that the car-jacking robbery was the accused’s idea and that the accused had both firearms. He was in custody and did so to help himself to be in less trouble. The witness first clarified these points, as described above, in his trial evidence here.

[23] Mr. Tran testified that he did not lie to the police about Decomarmond’s role – he was along for the ride. Certainly, Decomarmond knew of the plan. However, at age 16 Mr. Tran did not then feel that his friend’s actions amounted to involvement in the commission of any crime.

[24] Constable Callan described Tran’s appearance on August 5, 2007 as 5’6” in height, 130 pounds, a slim build, with black hair with a blonde streak in front.

[25] Asked in cross-examination whether the accused and Decomarmond had a similar physical appearance, Mr. Tran responded “no”, they had two totally different faces and hair styles. Decomarmond had a lot of hair and the accused was bald. However, he knew them both. The witness went on to note that they were similar to the extent that they are both tall and had a brown complexion. In 2007, according to the witness, the accused was a lot bigger than Decomarmond. Mr. Tran agreed with the suggestion that of the three of them, he was most likely to be described as Phillipino. The witness testified that in August 2007 his black hair was not too short and was not “shaved”.

[26] Under cross-examination questioning, Mr. Tran agreed that he had misled the court hearing his charges in this matter to believe that he did not have a firearm in an effort to receive a lighter sentence. He agreed that he was a person who could say things to help himself.

THE ACCUSED’S EVIDENCE

[27] Mr. Gobin, born February 5, 1989, and two credits short of completing grade 12, testified on his own behalf.

[28] Mr. Gobin testified that he had “a very small criminal record”. He acknowledged the following Youth Court record:

December 7, 2006 - assault time served

• break and enter (7 days) and 18

months’ probation & a 2-year weapons prohibition order (concurrent sentences)

[29] In his testimony, the accused admitted this adult criminal record:

February 22, 2008 - possession of a weapon credit for 19 days of

(a BB gun according to the pre-sentence accused) custody

• breach recognizance suspended sentence

& 18 months’ pro-

bation (concurrent

sentences) & 5-year

weapons prohibition

order

August 5, 2008 - breach of recognizance 1 day & credit for 9

days’ pre-sentence

custody

September 24, 2008 - breach of recognizance 7 days credit for 10

days’ pre-sentence

custody

[30] Questioned about additional convictions and sentences on the February 22, 2008 date (assault, fail to attend court), the accused replied that he assaulted no one and always attended court. Subsequently, as an admitted fact, the defence acknowledged the validity of those additional convictions without the necessity of the prosecution proving them pursuant to s.12(1.1) of the Canada Evidence Act.

[31] The content of the accused’s August 5, 2007 videotaped statement to the police is summarized at paras. 34-8 of the earlier ruling. Asked at trial whether that statement was truthful, the accused replied, “yes, somewhat”. According to the witness, because he was scared, he was not fully truthful.

[32] The accused informed the court that he met Chris Tran at a picnic a couple of days prior to August 5, 2007. The second time they met was on August 5. On the first occasion, he met Frank through Tran but did not speak to him. He did not overhear the conversation between Tran and Frank. The accused just “wanted to smoke weed”. The accused testified that the first time he met Kenneth Decomarmond was on August 5. He met him through Tran. He was unaware whether Tran and Decomarmond had jobs. He considered them as “friends”. He considered them “honest guys”.

[33] Mr. Gobin provided the following account of the events of August 5, 2007. In his in-chief evidence, the accused stated that he was not working and did not have “much money”. In cross-examination, he stated that he had “no money”.

[34] He travelled in his mother’s car from home and, at about 4:00 p.m., met Chris Tran at Decomarmond’s apartment in the Jane/Finch area of Toronto. He knew how to get there as Tran had told him. Tran was with him. He went there because he had no marihuana and he wanted to smoke some weed. Decomarmond had some. At the apartment, he smoked marihuana. He chilled and watched T.V. He was not entirely sure whether he had a bandana but was pretty sure he did not.

[35] At some point, Tran and Decomarmond wanted to talk privately. They did. Then they wanted to use his car. He heard something about getting some money but there was no real indication how. He heard the others speak of Frank. He had no idea Frank was involved with vehicles. If he lent his car, he would get a couple of thousand dollars. He would be paid that night. He knew a car could be rented for a $100 a day or less. He wanted money. He needed money. He was tired of working. He never asked why they needed the car. He did not really care how he was to get the money but he wasn’t going to do anything to get it and certainly nothing criminal. He went with the flow. He knew Tran and Decomarmond would be involved in “something” to get the money. Asked at trial who was supposed to pay him the easy money, the accused replied, “I heard a guy named Frank”.

[36] In the accused’s view, “it’s easy to get money out there” and “the less you do sometimes, the more money you get”. He did not ask Tran and Decomarmond how they planned to get money. He chose not to ask about it. He was not curious. He was not suspicious. He assumed they were not going to a bank. In cross-examination, the accused stated that he was “kind of pressured” to lend his car. He wanted “easy money”. As to easy money, “he wanted a piece of that”. He didn’t want to get hurt. “Maybe they had weapons” – he could be hurt. In the accused’s view, a lot of guys in society have guns, sometimes just to protect themselves. He was not afraid of either Tran or Decomarmond one-on-one but they could “team up”.

[37] The accused agreed to loan his car. However, his mother’s car was a priority for him. He was very concerned that nothing happen to his mother’s car, that it not be used in anything illegal, and that he be able to return it to her. It was dark outside. He sat in the back seat. Decomarmond drove. He was offered some marihuana. They parked at a movie theatre where he continued to chill, listening to rap music and smoking marihuana. He looked out the window the odd time to be sure the police were not around. He was high and “spaced out” and having a “good time”. He did not see a RAV4. He heard the others say something about a RAV4 but he did not want “to invade their business”.

[38] At a point, they were on the move. He had no idea where they were going. He had no idea they were following another vehicle. He was still smoking weed. According to the accused, he kind of knew something was going to happen. He was not sure what. He didn’t think it would be a bad thing. They parked at the curb in a suburban area. He was told to wait in the car. Tran and Decomarmond got out and went straight ahead. He didn’t see where they went or what they did. He knew something was about to occur – “I kind of knew something was going to happen” – “they started doing their own thing”. He did not look out the window – he was just chilling in the back seat.

[39] On the accused’s evidence, one or two minutes later a car then rolled up to where he was with Tran driving. When Decomarmond told him to get in the back of that vehicle, he did. Decomarmond tossed him an air pistol, said, “Don’t worry. It’s fake”, and told him to hold it. He put it in his waistband. Air pistols were not illegal. This was the first time that night he had seen any firearm. In his evidence in-chief, he stated that he did not see Tran with a firearm. In cross-examination, the accused stated that he had seen Tran with a handgun that looked real. With Decomarmond saying they were off to get the money, Tran drove off in the SUV while Decomarmond drove his mother’s vehicle. In the back seat he saw an open purse with its contents scattered on the seat.

[40] When he asked Tran what was going on, he was told to chill. He was “really high”. In his view, they were going wherever they were going. At a point, Tran thought he was being followed by the police. He drove into a parking lot at the back of an apartment building. Tran got out of the vehicle first. He followed him. As he started walking, an unmarked car raced toward him and a big guy pointed a gun at his head and said, “Stop or I’ll fucking kill you”. There was no uniform or police shirt. He thought he might die or be robbed. He raised his hands. The handgun was still in his waistband. Told to turn around, he did. He did not want to be shot. He went to his knees and lay on the ground on his own. He was then kicked in the head. His chin was cut. He saw Tran getting his face punched by another officer. The accused was unable to recall whether his injury was treated at the scene. He was arrested. Prior to his arrest, he had no idea anyone had been robbed.

[41] At P.R.P.S. 11 Division, he provided a videotaped statement. On the accused’s evidence, prior to the videotaped interview, Constable Gordon came real close to his face and said he would beat him up if he didn’t talk. He put a fist in the accused’s face and said that he was going to do a long time in prison and said he would be raped there. Constable Gordon forced him to say things.

[42] According to the accused, he was “a little bit high” during the interview but he was coming down. He did not understand his rights on August 5, 2007. He was not informed of his rights. The accused agreed in cross-examination that on more than one occasion he had been arrested prior to this date.

[43] The accused testified that he did not disclose in his statement that Decomarmond gave him a firearm as he “did not want to get others in trouble” – he “wanted no one to be arrested”. He did not want to be blamed if Decomarmond was arrested. He did not want his family jeopardized – guys in the Jane and Finch area had guns. He knew Tran had been arrested. The accused did not consider himself to have been caught red-handed – it just “looked” like he was caught. Any details provided in the videotaped statement were not as a result of being involved in a crime. After getting into the RAV4, Tran told “a little about” what occurred. He also learned “a little bit” when he asked Tran about the purse in the back seat. He was high and not really paying attention to details.

POSITION OF THE PARTIES

The Crown

[44] On behalf of the prosecution, Ms Di Giulio submitted that, on the whole of the evidence, guilt has been proven beyond a reasonable doubt.

[45] It was submitted that Christopher Tran, though a Vetrovec witness, provided reliable evidence. It is said that he was candid about his own involvement, appeared frank, admitted lack of memory where he had no recall, had been promised nothing for his testimony, corrected earlier testimony to take increased blame on himself, and was corroborated by such details as the presence of a bandana in his possession and the existence of two replica handguns seized at the scene of the arrests.

[46] On the evidence of Mr. Tran, the accused was directly involved in the robbery of the victim.

[47] Apart from Tran’s evidence, the victim identified one of the two robbers as having a shaved head. On the evidence of Mr. Tran and of Constables Gordon and Callan, and review of the videotape of the accused’s statement, of Tran, the accused and Decomarmond, only the accused had a shaved head.

[48] Aspects of the victim’s account at odds with the appearance of the accused or the prosecution theory may reasonably be explained by the impact on the victim of the quick and alarming nature of the armed robbery.

[49] Crown counsel further submitted that Tran’s evidence is corroborated by the accused’s confession to the police. In that statement, the accused admitted using an imitation firearm to rob the victim of her vehicle. The accused was arrested with the victim’s possessions. He was in possession of a bandana and an imitation firearm when arrested.

[50] It was submitted that the accused provided a significant level of detail in his statement to the police. There was no credible basis for the allegation that Constable Gordon threatened the accused in any way. The chin injury is inconsistent with the accused’s account of being kicked in the head. The police evidence and observation of the accused giving his statement demonstrates that he was not high from drug consumption.

[51] It is not alleged that Constable Gordon “scripted” the accused on what to say. On the accused’s evidence, while high and spaced out, he only heard sketchy details from Tran of events in the RAV 4 after the robbery. It is submitted that the detail emanates from the accused being involved in the robbery, recognition that he was caught, and then voluntarily confessing.

[52] It was submitted that once the court accepts that it was Tran and the accused who went up the victim’s driveway, it matters not whether it was Tran or the accused who directly dealt with the victim at the driver’s door of the RAV4. If the accused was on the passenger side of the vehicle, he was a party to the robbery and a party to Tran’s use of his imitation firearm to effect the robbery they had agreed to commit.

[53] Ms. Di Giulio submitted that the accused’s testimony was unbelievable, ought to be rejected, and failed to raise a reasonable doubt. The accused wanted easy money but purportedly never asked how the others would get it. Two thousand dollars to loan a car with no thought of illegality made no sense. Despite a professed concern about his mother’s car, he allowed Decomarmond to drive the car and to have it used in a venture to secure easy money in which a firearm was present. The accused incredibly testified that he did not see or know where the others went in the residential location of Mississauga when they left his mother’s vehicle. Equally incredible was the accused’s claim that his knowledge about the robbery only came after the crime was committed.

[54] It was submitted that the charge of being masked with intent to commit robbery was proven. The victim identified two masked robbers. A bandana was seized from the accused when arrested.

The Defence

[55] Mr. Pearson submitted that on the totality of the evidence there exists a reasonable doubt as to the accused’s guilt on all charges.

[56] Counsel identified certain common ground on what the evidence revealed – three individuals were together the night of August 4/5, 2007 (the accused, Tran, Decomarmond); at about 1:15 a.m. on August 5, 2007, the accused was in the RAV4 stolen in the robbery; when arrested, the accused was in possession of an imitation firearm and a bandana.

[57] As to the victim’s evidence, she did not identify the accused. She only described seeing one firearm. The male person with the gun who accosted her clearly fits the description of Christopher Tran. On Tran’s evidence, the accused and Decomarmond had a similar appearance in terms of height and skin colour.

[58] It was submitted that Tran was an untrustworthy witness who ought not to be believed. He misled the police and the court that sentenced him on significant issues. For example, he sought to advantage himself by saying that he was not in possession of an imitation firearm. He alleged that the robbery was the accused’s idea. As well, because Decomarmond was a long-time friend of Tran residing in the same apartment building, Tran had a motive to shift blame away from that as-yet-unarrested friend and onto the accused.

[59] Mr. Pearson submitted that the accused’s videotaped statement should not be considered as entirely reliable. He was only 18 years of age and scared. Decomarmond had not been arrested. The accused did not want to “rat” on him and had a degree of fear for his family’s safety. In his statement, the accused related to Constable Gordon that he feared he might be beaten in jail if he snitched. In these circumstances, it was not unreasonable for the accused to falsely implicate himself to protect Decomarmond.

[60] It was submitted that the evidence does not credibly establish that the accused left his mother’s car at the time the robbery was committed. Remaining in the vehicle does not afford a basis to find the accused to have been a party to the robbery.

[61] Alternatively, counsel submitted that should the court find as a fact that the accused accompanied Tran up the driveway to the victim’s vehicle, the accused was not the person on the driver’s side of the RAV4. Because there was no evidence that the robber on the passenger side of the vehicle had a firearm, or if he did that he brandished a weapon, the allegation of “use” of an imitation firearm was unproven. Simple possession of the Exhibit #2 firearm does not constitute a crime.

ANALYSIS

General Principles

[62] “Credibility is a central issue in many criminal cases”: R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at para. 55 per Lamer C.J. The court may believe all, none or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; D.R. et al. v. The Queen (1996), 1996 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R. v. Abdallah, 1997 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4, 5. Accordingly, a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[63] However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[64] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.)(QL), at paras. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[65] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.)(QL), at paras. 9-17.

[66] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.)(QL), at para. 1 (affirmed 1995 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.)(QL), at paras. 8, 9; R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.

[67] Assessment of a witness’ credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom – this includes “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57 (under reserve judgment, [2010] S.C.C.A. No. 494). However, a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 1999 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[68] Where significant factual matters testified to by an accused are not put to the complainant in cross-examination for her position or explanation, a trier of fact may, but is not “required by law to give less weight” to the accused’s testimony: R. v. Bell, [1997] O.J. No. 1546 (C.A.)(QL), at para. 3. As to whether there has been non-compliance with the principle in Browne v. Dunn, “[t]he extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case”: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Blea, 2012 ABCA 41, at para. 35.

[69] An affidavit of an accused, effectively a statement under oath, filed on a Charter motion at some point prior to the trial itself is not evidence in “any other proceedings” for the purposes of s.13 of the Charter. Standing alone, the fact that an accused changes counsel, and that the successor counsel decides not to proceed with the motion to which the affidavit related, does not cause the affidavit not to be a prior statement under oath available to the prosecution: see generally, R. v. Baksh (2005), 2005 24918 (ON SC), 199 C.C.C. (3d) 201 (Ont. S.C.J.) (aff’d 2008 ONCA 116) (leave to appeal refused, [2008] S.C.C.A. No. 155). Questioned on the sworn statement at trial, the accused may of course explain the circumstances and context and accuracy of what was said on the earlier occasion.

[70] In some cases, a witness presents as an untrustworthy individual or as having that potential, for example, one who is particeps criminis in the transaction with which the accused is charged. Add to this a prior criminal record and self-admitted dishonesty, and very real concerns emerge about the reliability of such a witness’ evidence and in turn whether it can safely be counted on in the absence of cogent corroboration. In particular, an accomplice is generally considered a dangerous witness who may appear convincing when testifying as he or she is fully conversant with the details of the crime. However, the accomplice may well be acting in self-interest, for example, by inculpating another to protect a friend or minimizing his or her own role in an effort to lessen his or her own punishment.

[71] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the untrustworthy witness’ evidence in every respect – the evidence should, however, be capable of restoring the trier's faith in the witness’ account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; R. v. Betker (1997), 1997 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 (leave to appeal refused [1998] 1 S.C.R. vi); R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458 at 459. The acceptance of potentially corroborative evidence does not eliminate the inherent danger posed by a suspect witness — the effect of witness rehabilitation does not place the Crown witness in the same position as an ordinary witness: R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.), at 50, citing R. v. Racine (1977), 1977 2106 (ON CA), 32 C.C.C. (2d) 468 (Ont. C.A.), leave to appeal refused [1977] 1 S.C.R. xi and R. v. Brymer (1975), 1975 1360 (ON CA), 24C.C.C. (2d) 105 (Ont. C.A.); R. v. Conroy (1980), 1980 2923 (ON CA), 57 C.C.C. (2d) 446 (Ont. C.A.), at pp. 448-9.

[72] The existence or absence of a motive by an accuser or principal Crown witness to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at para. 2-8; R. v. K.(A.), supra at 173; R. v. M.(W.M.), [1998] O.J. No. 4847 (C.A.) at para. 3; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at para. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie is relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12 at para. 12, 16; R. v. Murray (1997), 1997 1090 (ON CA), 99 O.A.C. 103 (C.A.) at para. 11-14.

[73] Where a person has control of an imitation firearm, it need not be fired or brandished to found liability under s. 85(2)(a) of the Code. It may be considered to be used where, to facilitate the commission of an indictable offence, it is, for example, revealed or displayed in some manner to a victim in the course of a robbery: R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 26-32; R. v. Boodhoo, Ont. Ct. (Gen. Div.) (CRIM(J) 519/94; unreported, April 10, 1996), at pp. 4-7. Simple hidden possession does not amount to use of a firearm. However, an accused may be found guilty as a party to another’s actual use of a firearm. In the Steele case, at para. 33, the court stated:

Where two or more offenders are acting in concert, the usual rules of complicity apply: McGuigan, at pp. 307-8. It will therefore be sufficient, where one of the offenders is in physical possession of a firearm or has immediate access to it, for another to utter the firearm-related threat.

[74] A person is a party to an offence when he aids a principal offender or offenders. Section 21(1)(b) of the Code establishes that such party liability attaches where the person “does...anything for the purpose of aiding” another to commit the crime. That is the actus reus of aiding – “to aid under s. 21(1)(b) means to assist or help the actor”: R. v. Greyeyes, 1997 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The prosecution must as well prove that the person who rendered assistance had the requisite mens rea. This has two components:

(a) an intention to assist the principal in the commission of the offence

and

(b) knowledge that the perpetrator intends to commit the crime.

See: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-17; R. v. M.R., 2011 ONCA 190, at paras. 17, 36-7, 40; R. v. Almarales (2008), 2008 ONCA 692, 237 C.C.C. (3d) 148 (Ont. C.A.), at paras. 66-70. It need not be shown that the accused desired that the offence be successfully committed and he need not know precisely how it will be committed: Briscoe, at paras. 16-7.

[75] Section 21(1) of the Criminal Code imposes criminal liability as a party on anyone who “does or omits to do anything for the purpose of aiding any person to commit” an offence. As said, “[F]or the purpose” is to be equated with intention: R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 (S.C.C.) at 209.

[76] Once an accused’s statement to a person in authority is ruled to be voluntary beyond a reasonable doubt, it is substantively admissible at trial when introduced by the prosecution. It is evidence for and against the accused. The trier of fact function considers the accuracy and reliability of the confession and the weight to be afforded the evidence and, together with the remainder of the evidence, determines whether the Crown has discharged its ultimate burden of proof in the case. Despite being admitted at trial, an accused may in his or her evidence seek to persuade the trier of fact that conduct on the part of the police caused or influenced him or her to given an unreliable and untruthful statement: R. v. Park (1982), 1981 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.), at p. 395; R. v. Murray, [1950] 2 All E.R. 925 (C.C.A.), at p. 927. In Park, involving a judge-alone trial after the accused’s statement was ruled admissible, the accused testified to a threat and an inducement such as may have rendered any resulting statement to be involuntary. At p. 396, the court stated:

The trial judge, having heard the evidence, had three alternatives (i) to continue with the trial, (ii) to hold a voir dire, (iii) to declare a mistrial. He decided to continue with the trial. Such an exercise of his discretion was not, in my opinion, a procedural error of law. As counsel for the Crown points out, correctly, the following factors were relevant to the exercise of such discretion, (i) the defence through experienced defence counsel had waived the voir dire and stated that voluntariness as a test of admissibility was not in issue, (ii) the defence had not cross-examined Sergeant Cosgrove as to any circumstances which could be said to cast doubt upon the voluntariness of the statement, (iii) the objection of the defence throughout was not voluntariness but whether the words attributed to the appellant were the words he had spoken, (iv) the judge was hearing the case without a jury, (v) when the evidence now alleged to constitute evidence of involuntariness was given defence counsel did not suggest either voir dire or mistrial.

Fact-Finding in the Present Case

[77] The court did not have the advantage of seeing and hearing from the victim given her medical circumstances. Apart from the logical inference that in the quick armed robbery the victim would be scared, highly stressed and potentially distracted by weapon-focus, she herself reported running into the house. As well, Tran described her as totally frightened.

[78] In these circumstances, the victim’s account, submitted as an agreement to what facts she would testify to, must be viewed with a degree of caution and in the context of the totality of the evidence. Aspects of the victim’s description of her assailants suggests that the armed robber at the driver’s side of the RAV4 was Tran, not the accused. This is contrary to Tran’s version of events. The victim’s reference to a robber with a shaved head fits the accused’s description and not Tran or Decomarmond.

[79] Christopher Tran is a Vetrovec witness, a witness to be considered untrustworthy and liable to provide incredible/unreliable testimony. This is so having regard to the following:

(1) Tran was himself involved in the robbery

(2) under arrest, Tran inculpated the accused and exculpated his long-time friend, Kenneth Decomarmond

(3) Tran has a criminal record

(4) in his videotaped statement to the police, Tran admittedly lied in saying that the accused had the firearms and that the robbery was his idea

(5) Tran misled the court sentencing him as to the extent of his participation in the robbery

(6) arguably, Tran received a lenient sentence as a result of his mis-representations.

[80] The real prospect that Tran deflected blame from himself to the accused must be assessed in light of consideration of the witness’ testimony in court, and the existence of corroborative evidence.

[81] Chris Tran presented as a confident witness not uncomfortable in admitting what he could not recall. He admitted lies to the police and to his sentencing court and took an increased measure of blame upon himself in this trial in the sense of having one of the imitation firearms and the shared idea of committing the robbery. Despite being a prisoner serving a custodial sentence, the witness gave no indication of equivocating on his account that the accused accompanied him up the residential driveway in their concerted effort to rob the victim of her RAV4.

[82] The accused’s involvement in the robbery is circumstantially supported by his presence in the Weston Road parking lot with the victim’s RAV4 containing her purse, and the presence of a bandana and an imitation firearm on his person.

[83] In his videotaped statement, the accused unequivocally confessed to participation in the planning and execution of the car-jacking robbery. Included in the accused’s admissions were these utterances:

A. … we ran up and got it.

A. So um, yeah, we, we followed her to her house. She parked her car, me and Chris ran out. And um, our other friend who I met tonight-, today. He was driving my mom’s car. And uh, so yeah, me and Chris took the keys from her.

Q. Okay.

A. And then we got in the car.

Q. (Inaudible).

A. And then we drove off. And then we just drove down to the area where we were gonna park the car.

And, in relation to the replica firearm in his possession on August 5, 2007 with which he was arrested:

Q. …is that what you used to steal the car?

A. Yeah, I used that.

[84] In his trial testimony, not having testified in the confession voir dire, the accused maintained that he went to the pavement on his own in the Weston Road parking lot, was high at the time of his arrest, was kicked in the head, his face was smashed, his rights were not communicated to him by the police, he was threatenened off-camera at 11 Division by Constable Gordon including with further physical violence should he not confess, and in the videotaped interview he falsely implicated himself in the car-jacking robbery because he was scared. In these circumstances, the statement voir dire was not re-opened. Nor was a mistrial declared. The court exercised its discretion to proceed with the trial and assess the reliability of the confession in light of all the evidence, having regard to a number of factors including:

(1) the defence did not request that the voir dire be re-opened

(2) having agreed at the outset of trial that if the accused’s statement were ruled voluntary and therefore admissible, the voir dire evidence would then apply to the trial, the accused chose not to testify on the voir dire and did not cross-examine Constable Gordon about a kick to his head, his alleged state of being high from drug consumption, or express threats that he would be physically beaten if he did not cooperate - electing instead to suggest to the officer that he told the accused he would go to jail for 10 years and then scripted him on his theory of the case

(3) the accused’s chin injury does not appear consistent with a kick to the head or having his face smashed

(4) the accused acknowledged that despite his age, he was not a novice to the criminal justice system as prior to August 5, 2007 he had been arrested and given his rights

(5) the police witnesses described Tran as having no injuries; while Tran testified to rough handling, he did not describe any injuries and certainly nothing consistent with the multiple punches to him described by the accused

(6) when Constable Gordon, in the videotaped interview, spoke of the accused’s injury as caused “when I took you down”, the accused said nothing about having put himself on the ground

(7) in the interview, the accused described the cause of his chin injury at the scene of arrest resulting from Constable Gordon putting “some pressure” on him – nothing about a kick to the head

(8) both Constable Gordon and Constable Savage, two credible witnesses, cautioned the accused and communicated to him his rights to counsel

(9) although the accused maintained in his October 22, 2009 affidavit that he incriminated himself in his August 5, 2007 videotaped statement not understanding the implications of what was going on in part because he “had not previously faced criminal charges and was unaware of the process”, he subsequently admitted in cross-examination that he had a prior record and had been given his rights in a previous arrest situation.

[85] I accept the evidence of Constables Gordon and Callan wherever it differs from the accused in terms of allegations of violence or threatening. The police witnesses gave straight-forward testimony not impacted in cross-examination or by the cursory nature of any of their notes. On these issues, and generally, the accused’s prior criminal record impacted on his credibility as a witness. He was a most unimpressive witness in testimonial content and presentation of his evidence.

[86] Apart from reliance upon the observations at paras. 34-44, and 85-90, of the prior ruling rejecting the accused’s earlier assertions of improper police behaviour causing him to confess, the following observations confirm those conclusions.

[87] In the videotape, the accused exhibited no fear or distress. He appeared calm and responsive to the interviewer’s questions. Included in the dialogue are these passages:

Q. Okay. And that no time since you been here [has] anybody laid any hands on you or abused you in anyway?

A. No.

Q. I’ve been pretty straightforward with and decent with you. Would you agree with that?

A. Yeah.

Q. Listen, I appreciate, I appreciate what you’re doing here. Okay. I understand you want, you want to be a man, you’re taking ownership of what you’ve done tonight.

A. Yeah.

[88] In considering some of these described considerations, it might be said that an in-custody accused would not be disposed to complain, or correct an interviewer’s statements, or appear to dispute suggestions, if he had in fact been threatened or physically abused. However, in the videotaped interview, the accused confidently resists suggestions that he was also involved in an August 1st car-jacking, also stating, “this is the first time”. Beyond that, the accused also had no difficulty raising the topic of discomfort about being a snitch. The accused was not afraid to dispute things said to him by the interviewer.

[89] Further, the accused provided unsolicited details in his statement with respect to a number of matters including with respect to the victim’s RAV4 (“Figured it be pretty easy to take”), his motive for the crime (“I just had no money at the time and I needed some”), a description of Frank and how the police might acquire his phone number (“I think it’s on Chris’ phone”), that Decomarmond was not to get the same money for the job as Tran and him, and advanced theories as to what Frank did with the stolen vehicles.

[90] The accused not only described Tran’s role in the robbery including background about Tran having stolen cars previously and as having “the contacts”, but he also described the role played by “Kenny” (Decomarmond) in terms of the assistance he provided in the robbery scheme as well as his description (dark skin, “kinda big”, aged 21 and Guyanese) and that he was in possession of the accused’s mother’s car. It cannot fairly be said that in the interview the accused was adopting a posture of not providing information about his co-accused out of fear of reprisal from his confederates.

[91] The accused’s assertion that he was in a marihuana-induced haze the night of August 5 is completely incredible. On the accused’s evidence, at that time of his life, one of his prime objectives was to smoke weed and to get high. It made no sense, on the accused’s version, that to obtain marihuana he had to travel from Thornhill to the Jane and Finch area to meet Tran’s friend, Decomarmond, a person he maintained he had never met. There is no indication in the videotape to suggest that the accused was high on marihuana. He was responsive to questions, asked for nothing to be repeated, and added details on his own. The police witnesses who were asked at trial made no observations of any impairment on the accused’s part on account of substance ingestion. There was no cross-examination of Constable Callan, who searched the RAV4, as to whether there was an odour of marihuana in the vehicle. In the accused’s October 22, 2009 affidavit, he claimed he was “intoxicated” as opposed to being “high” or “spaced out”, the words the accused ordinarily employs to describe his state when he smokes weed.

[92] On the totality of the circumstances, the accused’s interview statement is a reliable and truthful account of the accused’s activities on August 5, 2007 and therefore a significant piece of evidence to be considered in the context of the entire trial record.

[93] There were a number of inconsistencies within the accused’s own testimony and between his testimony and information he provided in the videotaped statement.

[94] Inconsistencies and additional problems within the accused’s trial testimony included the following. The accused represented that he only had “a very small prior criminal record” and failed to admit two prior convictions. While describing Tran and Decomarmond as “friends”, Mr. Gobin claimed to have met Tran only once prior to August 5, 2007 and to have only met Decomarmond that day. He variously testified that he needed and didn’t need money. He informed the court both that he saw Tran with a firearm and he did not.

[95] Turning to the videotaped statement, the accused confessed to the robbery. At trial he did not. In the video, the accused stated that he met Tran the prior summer whereas at trial he claimed to have met Tran only two days prior to the crime. In the interview, the accused stated, “we had to pull a mission … to get some money”, while at trial he claimed to have no knowledge of what was transpiring as he was high and spaced out. On this point, although the accused maintained at trial that he had no part in the plan, in the video interview he stated:

Q. Who came up with the plan?

A. We both did.

[96] While, at trial, the accused testified that he never spoke to Frank when he and Tran were with Frank, in the police interview the accused said that he shook his hand, they spoke as he was recruited by Frank, and in the accused’s words, “And I said I’ll do it for him”.

[97] The complainant described an approach by two masked men who robbed her of her vehicle and purse. Those two individuals, it has been established, were Tran and the accused. They were disguised to prevent the victim being able to identify them. The accused was found in possession of a bandana when arrested in the Weston Rd. parking lot. The compelling evidence is that the accused was masked in order to rob the victim.

[98] Given the court’s conclusion that no reasonable doubt exists on the totality of the evidence that the accused went up the victim’s driveway, masked and armed with a real-looking, replica firearm, with the intent of robbing the victim, it matters not whether the accused was on the driver’s or passenger side of the RAV4. He either used the imitation firearm in his possession to rob the victim, or was a willing party to Tran’s use of the firearm in his possession, to execute their in-concert plan of committing armed robbery with imitation firearms.

[99] The prosecutor convincingly established guilt beyond a reasonable doubt. The accused’s account of police mistreatment, of having advancing a false statement as to his own liability, and of non-involvement in the planning and execution of the robbery, is entirely unbelievable and fails to raise a reasonable doubt. On the whole of the evidence, no reasonable doubt exists.

CONCLUSION

[100] The accused is found guilty of the three charges in the indictment.

Hill J.

Released: April 25, 2012

COURT FILE NO.: CRIMJP3515/09

DATE: 20120425

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

KENNETH GOBIN

Defendant

REASONS FOR JUDGMENT

Hill J.

Released: April 25, 2012