ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-40000787.0000
DATE: 20120801
BETWEEN:
HER MAJESTY THE QUEEN – and – FRANCIS KOROMA and TRISTAN COX
Dayna Arron, for the Crown
Cydney Israel , for Francis Koroma
Stacey Taraniuk , for Tristan Cox
HEARD: July 16-19, 23-24, and 26, 2012
M.A. CODE J.
reasons for judgment
A. OVERVIEW
[ 1 ] Francis Koroma and Tristan Cox (hereinafter, Koroma and Cox) are charged in an eleven count Indictment with various offences arising out of a robbery that took place on November 16, 2010. The trial took place without a jury over parts of seven days. I reserved judgment at the end of the trial. These are my reasons for judgment.
[ 2 ] A great deal of evidence in this case is not open to any serious dispute. The parties sensibly negotiated a substantial Agreed Statement of Fact on matters that were not disputed. Much of the evidence that was called was not seriously challenged. There were no pre-trial motions.
[ 3 ] In particular, it is agreed that the victim Arif Berkedle (hereinafter, Berkedle) was robbed by Koroma and Cox on the date in question at the FIDO store in the Jane-Finch Mall. Koroma took a set of keys from Berkedle and Cox took $50 from him. It is also agreed that Cox was on bail and on probation at the time of the robbery and was in breach of both of these court orders. Finally, it is agreed that Koroma was on probation at the time and was in breach of that court order.
[ 4 ] The parties also agree that the motive for the robbery was a grievance that Koroma had with Berkedle. However, they do not agree on the nature of the grievance. Koroma testified that he was upset with Berkedle because he was “chilling”, that is, associating with another person named Stanley who Koroma disliked. The Crown alleges that Berkedle was a competitor in the drug trade and that Cox and Koroma were trying to threaten and intimidate him so that he would leave their territory.
[ 5 ] Aside from this dispute over the nature of the motive, which is neither an essential element of any offence nor an issue that I need to resolve, the real dispute in the case is over a loaded handgun that was admittedly produced by somebody during the robbery. There is no question that Berkedle was shot by a single bullet at the very end of the robbery. It went through his thigh just above the knee. The Crown alleges that Cox was in possession of the loaded handgun and produced it and fired it. The theory of the defence, advanced through the testimony of both Cox and Koroma, is that Berkedle was in possession of the handgun, that he produced it, and that he accidentally shot himself in the leg in a struggle over the gun. The parties agree that Cox ended up in possession of the gun as he and Koroma fled from the mall after the shooting.
[ 6 ] If the Crown’s theory about the gun is correct, then the robbery is more aggravated and becomes punishable under s. 344(1)(a) as a robbery in which a restricted or prohibited firearm was used. In addition, the counts of aggravated assault and discharging a firearm with intent, contrary to ss. 268 and 244(b), would be proved against Cox as the principal who fired the gun and, perhaps, against Koroma as a party.
[ 7 ] On the defence theory, the accused are guilty only of robbery simpliciter , contrary to s. 344(1)(b), and the penal consequences would be less severe. In addition, they would be guilty of the admitted breaches of bail and probation. Finally, they may be guilty of one or more possessory offences relating to the handgun which Cox ultimately had in his waistband as he and Koroma fled the mall.
[ 8 ] Many of the relevant events at the Jane-Finch Mall were captured on video surveillance. I have reviewed this evidence carefully, in slow motion and by freezing the frames. It is of considerable value. It shows that Koroma and Cox were in the FIDO store for just under three minutes, with Berkedle, from about 11:53:06 a.m. until 11:56 a.m. The surveillance camera is in the ceiling of the central aisle of the mall, just outside the FIDO store. The surveillance footage shows the two accused entering the store and it shows them fleeing, after the final gunshot, but it does not show events inside the store during the robbery.
B. FACTS
(i) The victim Berkedle
[ 9 ] The victim Berkedle did not testify. He did not cooperate with the police. Some four months after the robbery, he gave a video-taped statement to the effect that he did not remember what happened. A year after the robbery, he testified to similar effect at the preliminary inquiry. He did not remember what happened and he could not identify who shot him. He did agree with defence counsel that he used to live “at Tobermory” but he tended to “hang with the Yellowstone guys” more than with “the Tobermory guys”. This evidence was admitted at trial pursuant to s. 715 because Berkedle was dead by the time of trial.
[ 10 ] On May 31, 2012, some six months after the preliminary inquiry and about six weeks prior to trial, Berkedle was shot and killed. He was found dead inside a silver Cadillac which he owned. He was in possession of 3.5 grams of crack cocaine at the time of his death.
[ 11 ] At trial, it was common ground that Berkedle had lived at an apartment building known as 15 Tobermory, with his mother and his little sister. He was five or six years younger than Cox and Koroma, who also lived at 15 Tobermory as they were growing up. The defence brought out evidence from Trevor Dixon, who lived at 15 Tobermory, that Berkedle had been seen selling drugs in and around the building. In particular, Dixon described watching Berkedle engaged in apparent drug transactions from the vantage point of Dixon’s sixth floor apartment window. Dixon’s evidence on this point was not challenged by the Crown.
[ 12 ] I am satisfied, on all the evidence, that it can be inferred that Berkedle was engaged in the drug trade in some fashion, prior to his death.
(ii) The evidence of Iman Berkedle
[ 13 ] Berkedle’s little sister was with him at the Jane-Finch Mall on the morning of November 16, 2010, when he was robbed. Her name is Iman and she was twelve years old when she testified at the preliminary inquiry. She was eleven years old at the time of the robbery. Her mother was reluctant to have her testify. After her son’s funeral, in June 2012, the mother traveled with her daughter to Africa and, as a result, Iman did not testify at trial. I admitted a transcript of Iman’s preliminary inquiry testimony, pursuant to s. 715.
[ 14 ] Iman testified in November, 2011, exactly a year after the robbery. Her brother was eighteen at the time of her testimony and, therefore, would have been seventeen at the time of the robbery. He had been in grade twelve and was attending Westview High School at the time of the robbery. By the time of the preliminary inquiry, Berkedle was no longer living at home and Iman did not see him a lot.
[ 15 ] Iman described going with her brother to the FIDO store at the Jane-Finch Mall on the date in question. Her brother drove them to the mall, with their mother, who gave two $50 bills to Berkedle but then remained in the car. Iman and her brother went into the mall and into the FIDO store. Her brother needed to buy a SIM card for his phone and their mother had given him money for the purchase. There were two other customers in the FIDO store being served by the proprietor and so Iman and her brother were asked to wait. The store is small and, while they waited, Iman was on the north side, looking at cell phones, and her brother was on the south side, also looking at cell phones.
[ 16 ] Iman testified that two guys came in the store and began talking to her brother. She did not pay attention at first but then she heard them “asking for money”, saying, “I want money”. Iman’s testimony on this point has now been confirmed by both accused who admit they demanded money. Iman also heard her brother say something like, “no, I’m with my sister and my mom”. They replied, “I don’t care”. The two men had their backs to her but her brother was facing her. The three of them were all close together and they were “in the corner” at the south side of the store. She did not actually see the two men take money from her brother but he told her afterwards that they took $50. At the point where the two guys demanded money, the three of them were all standing in the corner having a conversation. One of the two guys then “moved back” and was standing closer to Iman. He then “moved forward”. Iman’s testimony on this point is confirmed by the video surveillance evidence which shows that this person who “moved back” was Koroma.
[ 17 ] Iman testified that her brother did not push the two men or touch them. Rather, they pushed him “to the corner and then he got shot”. She described this pushing incident as backing her brother into the corner of the store and also pushing his back onto the counter that is in the corner. Her brother “came back up” and “then after that they shot him”. There was no further conversation between the three young men once the pushing incident began. Iman estimated that thirty seconds may have passed between the pushing and the shot being fired. This time estimate is probably unreliable, in light of all the other evidence.
[ 18 ] Iman never actually saw the gun. However, she testified that she did not see her brother with the gun and he was facing her. She heard the gunshot and then the two guys ran out of the store. Her brother was screaming and saying, “shit I got shot”, and Iman started screaming. In terms of her attentiveness to what was going on, Iman testified that she “knew something was going to happen” once she heard the demand for money. At the point when her brother was pushed, she was “really looking at what’s going on”.
... (continues exactly as in the source text) ...
M.A. Code J.
Released: August 1, 2012
COURT FILE NO.: CR-11-40000787.0000
DATE: 20120801
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – FRANCIS KOROMA and TRISTAN COX
REASONS FOR JUDGMENT M.A. Code J.
Released: August 1, 2012