ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000392-0000

DATE: 201204 13

BETWEEN:

HER MAJESTY THE QUEEN – and – NIGEL COLIN JORDAN

Hanna-Suarez, for the Her Majesty the Queen
C. Israel, for Nigel Jordan

HEARD: April 2 - 5, 2012

Thorburn j.

reasons for judgment

1. The Charges

[ 1 ] Nigel Jordan is charged with two counts of assault with a knife, two counts of wounding and one count of breach of the terms of probation. At the request of the Crown, a fifth charge of attempted murder was stayed at the close of the Crown’s case .

[ 2 ] These charges stem from an altercation that took place on March 24, 2010. It is agreed that Luciano Zagordo was slashed in the neck and Susan Mani was slashed in the upper bicep area of her arm.

[ 3 ] The only issue is whether the accused was the person who committed the assaults on Zagordo and/or Mani resulting in wounds.

[ 4 ] Zagordo and Mani were the only two witnesses called by the Crown. The accused was the only witness who testified on behalf of the Defence.

II. The Agreed Facts

[ 5 ] On March 24, 2010 just after 4:00 p.m., police attended outside an apartment in the area of Keele and Grandravine streets after a number of persons called 911. Several of them reported seeing Zagordo drive a white motor vehicle erratically, chasing a male black who was on foot. Three of the six callers identified the person running as a child or “a couple or a male black teen”. (The accused testified that he also saw Zagordo driving erratically and chasing a young black male whom he knew as Kyle down the street on the date and in the place in question.)

[ 6 ] On the evening of March 24, 2010, Zagordo and Mani attended Humber River Hospital. Zagordo had a four inch cut on the right front area of his neck. He required ten stitches to close the injury and control the bleeding. Zagordo’s girlfriend, Mani had a four and one half inch cut to her upper right arm. She required fifteen stitches to the wound to close the injury and control the bleeding.

III. The Law

[ 7 ] Where the accused chooses to testify, he must be acquitted if his evidence is believed. If the court is left in reasonable doubt as to the accused’s guilt he must be acquitted. It is not necessary to believe the Defence evidence to find reasonable doubt as to the accused’s guilt.

[ 8 ] If the Defence evidence is not believed, the evidence as a whole that is accepted must establish that there is no reason to doubt his guilt. [1]

[ 9 ] In order to decide whether to accept the accused’s version of events or whether it leaves the court with a reasonable doubt, the accused’s evidence must be assessed in the context of the evidence as a whole. [2] The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is presented that contradicts the accused’s evidence, that evidence may no longer be believable, or may no longer raise a reasonable doubt. [3] B oth credibility and reliability of the witnesses must be assessed.

[ 10 ] Where there are differing accounts of an incident, a trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Material inconsistencies may signify unreliability. [4] There must also be a rigorous analysis of whatever independent, extrinsic evidence exists.

[ 11 ] A credibility assessment of the Complainant’s evidence need not confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account. [5]

[ 12 ] The existence or absence of a motive by the Complainant to fabricate is a relevant factor to be considered [6] although the burden of proof is upon the prosecution and an accused need not prove a motive to fabricate on the part of a principal Crown witness.

[ 13 ] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence. [7] A guilty verdict may be founded on the evidence of a single witness [8] where that evidence constitutes the bulk of the testimony on that issue. [9]

IV. Analysis and Conclusion

[ 14 ] In applying the principles set out above, I will first review the evidence of the accused and, if I do not believe his evidence and it leaves me with no reasonable doubt as to his guilt, I will review the evidence of Mani and Zagordo to determine whether I am satisfied beyond a reasonable doubt of his guilt on the basis of the evidence I do accept.

Evidence of the Accused

[ 15 ] The accused is forty one years old. He has a lengthy record that includes over 20 offences committed between 1989 and 2006. He was arrested on these charges in June, 2010.

[ 16 ] The accused states that in March 2010, his ex girlfriend had her jaw broken by her former boyfriend and the doctor prescribed Percocet for the pain. He says Zagordo went “behind my back” to get pills from her. The accused was angry and went and “cussed him out”.

[ 17 ] The accused denies he ever demanded money from Mani or that he ever stabbed Mani or Zagordo.

[ 18 ] The accused testified that on March 24, 2010 he was in his neighbourhood (where the incident occurred). He heard screeching tires of a car accelerating and zigzagging through the intersection near Keele and Grandravine streets. Zagordo was driving the vehicle. The child who was being chased lived in the neighbourhood. He did not know his last name but his first name was Kyle.

[ 19 ] The accused said he first found out that he was accused of stabbing Zagordo on May 15, 2010. At that time, Mani said she had told police he stabbed Zagordo. The accused said he was very upset and asked her why she had done this.

[ 20 ] He did not ask Mani who stabbed Zagordo. He did not do so because he felt it was “not my business”.

[ 21 ] The accused told Mani he could not go to police and tell them he did not do this as they would not believe him. Mani offered to write a letter saying he had nothing to do with this situation. Mani got a pen and paper and envelope from the bar waitress and wrote the letter. The accused went to talk to others at the bar while she wrote the letter. When she had finished writing the letter, she put it in an envelope and gave it to him. He did not open the letter but gave it to his solicitor. The accused denies he called Mani many times after she wrote the letter.

[ 22 ] When the accused was in custody in July 2010 he heard on the news that a person named Kyle who lived in his neighbourhood had been killed. He did not remember seeing a photograph of this person. He assumed this was the same person he had seen being chased by Zagordo four months earlier because this was the only person named Kyle in his neighbourhood.

[ 23 ] He therefore called his counsel to check the news report and learned that Kyle, a twenty year old male, died on July 1, 2010.

[ 24 ] The accused testified that he made no effort to contact Kyle at any time before heard Kyle had died. He acknowledged that if his rendition were true, Kyle could have information that would show he was not guilty of these offences. The accused testified that he did not realize until he heard the newscast that a Kyle had died, that the car chase involving Zagordo and the stabbings for which he had been arrested, happened on the same day.

[ 25 ] I find the accused’s testimony is not credible for these reasons:

• In May 2010, he knew Mani had accused him of stabbing Zagordo. After he expressed his anger, Mani explained that she would give him a letter that would say he was not guilty of stabbing Zagordo. However, the accused made no effort to find out from Mani, who had committed this offence or why she had accused him of committing this offence.

• The accused was very anxious to get a letter from Mani that would say he had not stabbed Zagordo. In the letter Mani wrote, “Nigel Jordan has no involvement in the incident that happen (sic) on 3444 Keele Street. Luciano Zagordo made me say that it was Nigel Jordan.” The accused says that despite the fact that he was anxious not to be blamed for this incident and this was the only evidence he had to show he was not involved in these offences, he made no effort to read the letter although it was in an unsealed envelope and he took it to give to his solicitor. It is clear that a person accused of a crime he says he did not commit, with his knowledge and experience of the justice system would know this was crucial to his defence and would want to know the details.

• The accused professed to have no recollection of the March 24 car chase incident involving Kyle (that he says took place on the day and at the same place as these incidents) when he first found out he had been accused of these charges in May 2010, or when he was arrested on these charges in June 2010.

• Moreover, he did not explain why he suddenly remembered the March 24, 2010 car chase on July 1, 2010, the very day he found out Kyle died. It is incredible that the only person he knew (other than Zagordo and Mani) who could explain what happened on the day of the incident died the very day the accused realized he was the Kyle involved in the car chase and could not therefore come forward to show the accused was not guilty of these offences.

[ 26 ] The accused gave nothing more than a blanket denial that he had any involvement in these stabbings. For these reasons, I do not believe the accused’s version of events nor does it leave me with a reasonable doubt as to his guilt.

[ 27 ] I must therefore look to the evidence adduced by the Crown to see whether, on the evidence as a whole, I am persuaded of the accused’s guilt beyond a reasonable doubt.

Evidence of Zagordo

[ 28 ] Zagordo attended trial pursuant to a subpoena but professed not to know who stabbed him or how the incident took place. When shown a picture of the slash across his neck he said he did not want to recall how this happened. He stated that “the system can’t deal with it.”

Evidence of Mani

[ 29 ] Mani also attended the trial pursuant to a subpoena. She testified that before this incident she and the accused were friends. The night before this incident she received a telephone call from the accused. He was upset and claimed Zagordo had taken $60 from his former girlfriend for taking her to hospital. Mani said she would give him the money the next day and said the accused knows she has always helped him when he was in need.

[ 30 ] On March 24, 2010 at approximately 3:30 p.m. Mani testified that she was with Zagordo in his vehicle near her apartment building. The accused approached them on foot.

[ 31 ] Mani testified that Zagordo got out of the vehicle and he and the accused began arguing. She then got out of the vehicle to stop them from arguing. She went towards them outside the vehicle as they were going to physically fight. She believes one hit the other and is not sure which one. (On cross-examination she said there was no physical fight.)

[ 32 ] She said she “just got in the way”. The next thing she remembered the accused pulled something out of his knapsack and slashed her and Zagordo with the thing he pulled out of his knapsack. Mani was slashed in the upper bicep area of her arm. Mani was unsure what she was cut with.

[ 33 ] Mani said the accused told her he was sorry and had not intended to do this.

[ 34 ] An ambulance was called and police arrived. By the time police came, Mani said the accused had left on foot. She and Zagordo went to the hospital and received stitches.

[ 35 ] In May 2010, several weeks after the incident, Mani testified that she met the accused and told him she had told police he stabbed Zagordo. The accused asked why she had done that and was very angry. She agreed to write a letter stating that he had no involvement in this incident. Mani said the accused was sitting beside her in the bar when she wrote the letter and gave it to him. Mani said she did this because she did not want to get the accused in trouble.

The Credibility and Reliability of Mani’s Testimony

[ 36 ] Mani has a dated criminal record for offences committed in the 1980s. The offences include drug trafficking, the unlawful use of a credit card and possession of a knife.

[ 37 ] Mani is a simple person. She is a recovering drug addict and is disabled. She was clearly afraid, agitated and emotional when she testified. She testified that she feared for her safety. She said her brother is in the same jail as the accused and did not want her to say anything bad about the accused. She also testified that others in the jail where her brother and the accused are both housed threatened her not to say anything about the accused. She testified that the accused himself had not threatened her.

[ 38 ] Mani also testified that she has a great deal of difficulty remembering the details of what happened to her.

[ 39 ] Defence counsel conducted a very thorough and lengthy cross-examination of Mani. During that cross-examination, Mani acknowledged that she lied to the court on the following occasions:

• At the Preliminary Inquiry she said she did not know the accused. She lied because she was worried about her own safety. She did not want to get the accused in trouble as he was a friend of hers and her son’s.

• Mani wrote a letter to the accused’s lawyer telling him the accused had no involvement with the incident and was not responsible for Zagordo’s injury. She also wrote that she had been told by Zagordo to implicate the accused. She testified at trial that this was a lie: Zagordo had never told her to implicate the accused and the accused was responsible for her injury.

• She advised the court that Zagordo’s mother had died on Saturday and the funeral was the day she attended court. (She admitted on cross-examination that Mr. Zagordo’s mother’s funeral was two days before the commencement of trial.) She said she lied about the funeral date because Zagordo was very upset about his mother’s death and she did not want him to get into trouble for not attending court on the day he was required to attend by court order.

[ 40 ] Mani also said she was incorrect when she told the court at the Preliminary Inquiry that she and Zagordo had taken the accused’s former girlfriend to Mount Sinai hospital after she had been beaten up. Mani said Zagordo took her to hospital but she did not attend. She said that she and Zagordo were asked and took the accused’s former girlfriend to the liquor store. She said Zagordo asked the girl for money but did not see the girl give him any money.

[ 41 ] Mani conceded the following propositions put to her on cross-examination:

• It would make sense to “fill in the blanks” in her memory by talking with someone else who was there during the incident as she sometimes has trouble remembering the details of what happened during this incident. It would make sense that she would have discussed things with Zagordo before she gave her statement to police on March 26, 2010 (although earlier in her testimony she said she had not).

• She told police she was cut with a knife but did not see anything in the accused’s hands.

• Although she told police at the time of the incident that the accused stole a laptop from the vehicle, Zagordo could have put this idea into her head. She assumed the accused took the laptop as it was in the back seat of the car at the time of the incident and then it went missing.

• She had smoked crack cocaine three hours before the incident occurred and this affected her memory of the incident.

• She has lied to protect Zagordo and herself in the past. She has also lied to protect the accused.

Conclusion

[ 42 ] There is no question Mani and Zagordo suffered serious stab wounds. There is also no question that Zagordo and Mani were in a position to identify the person who stabbed them.

[ 43 ] Zagordo’s evidence is of no assistance as he was unwilling to provide any evidence as to who stabbed him or Mani.

[ 44 ] Mani on the other hand showed courage in giving a statement to police and in coming to testify for two days at trial notwithstanding her understandable fears as a vulnerable person living in a climate of fear.

[ 45 ] Mani was quick to concede her own frailties: she admitted that she is recovering from drug addiction, has memory problems, and has told untruths. She also readily conceded the inconsistencies in her testimony. Her statement that she often says things to protect others rings true: for example, there is no reason for her to have said Zagordo’s mother’s funeral took place later than it did other than to protect Zagordo. She attended at trial when requested but Zagordo did not on the first day they were summoned.

[ 46 ] I have grave concerns about what motivated Mani to change the story she told police two days after the incident (and the story to which she reverted at trial) when she wrote the May 15, 2010 letter and when she testified at the Preliminary Inquiry.

[ 47 ] However, the threshold to establish guilt is a very high one: it is closer to certainty than to probability.

[ 48 ] I cannot ignore the fact that Mani conceded she has difficulty remembering what happened on the day in question and admitted to several lies, two of which are highly relevant to this case. Mani said she wrote a letter stating that the accused did not commit these offences which was not true, and she said that she again said the accused was not the person who stabbed her or Zagordo at the Preliminary Inquiry. Moreover, in the Agreed Statement of Facts filed at trial, three of the six 911 callers told police that the person chased by Zagordo was a teenager and, as a 41 year old man, the accused is far from a teenager.

[ 49 ] For these reasons, I am left with a reasonable doubt as to the accused’s guilt. I therefore find the accused not guilty on all charges.

THORBURN J.

Released: April 13, 2012

Footnotes

[1] R. v. W. (D.), [1991] 1 S.C.R. 742.

[2] R. v. Hull, 2006 ONCA 26572.

[3] R. v. Hoohing, 2007 ONCA 577; and R. v. Campbell (2003), 2003 ONCA 48403.

[4] R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Sanichar, 2012 ONCA 117.

[5] Kehler v. The Queen, 2004 SCC 11; Regina v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.); Regina v. Michaud, [1996] 2 S.C.R. 458.

[6] The Queen v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.).

[7] Regina v. Howe, 2005 ONCA 253.

[8] The Queen v. G.(A.), 2000 SCC 17; Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.).

[9] Regina v. Chittick, 2004 NSCA 135.