ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000535-0000

DATE: 20130423

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHADDRICK BROWN and YAHYE HERSI

Defendants

Anna Stanford, for the Crown

Andrew Stastny, for the Defendant, Chaddrick Brown

John Scandiffio and Marsha Kideckel, for the Defendant, Yahye Hersi

HEARD:

February 19-22, 25-28, and March 1, 2013

SPIES J.

Overview

[1] The defendants, Chaddrick Brown and Yahye Hersi, are both charged with robbing Latoya Peters and her former boyfriend, Adil Osman, while armed with a firearm, in Ms. Peters’ home at 87 Bagot Court, in the City of Toronto, on March 18, 2012, contrary to section 344 of the Criminal Code. It is alleged that Mr. Hersi and two other youth offenders who participated in the robbery each had firearms. Although there is no dispute that Mr. Brown was not armed, the position of the Crown is that he is a party to the robbery and the use of a firearm. The defendants are also both charged with confining Ms. Peters and Mr. Osman without lawful authority during the robbery contrary to section 279(2) of the Criminal Code. In addition, Mr. Hersi is charged with uttering a threat to Ms. Peters to cause death to her on March 19, 2012, contrary to section 264.1 of the Criminal Code. The defendants were arraigned on other charges that the Crown withdrew at the conclusion of the evidence. The defendants re-elected trial by judge alone and pleaded not guilty to the charges.

[2] At the outset of the trial Ms. Stanford brought an application for an order permitting her to rely on the statement given by Mr. Hersi to police should he choose to testify. She also brought an application to introduce prior discreditable conduct and post-offence conduct with respect to Mr. Hersi. These applications were initially contested by Mr. Scandiffio. He also contested the continuity of the two cell phones that Mr. Hersi had in his possession when he was arrested, one of which is material to the threatening charge. With the agreement of all counsel the trial proceeded by way of a voir dire on all of these issues which was blended with the trial. It was agreed that the defendants could call evidence on the voir dire and that they would not be put to their election to call a defence until after all of the issues on the voir dire were decided.

[3] After all of the evidence was heard on the voir dire, which included all of the evidence for the Crown’s case on the merits, Mr. Scandiffio conceded the voluntariness of the statement made by Mr. Hersi to police and that there was no longer any issue with respect to continuity of the cell phones. After argument on the other Crown applications, I ruled that the evidence of prior discreditable conduct given by Ms. Peters of a prior incident when Mr. Hersi is alleged to have been showing off a gun was admissible solely to the issue of whether or not the gun that he is alleged to have had during the robbery was real. After argument began on the post-offence conduct application, Mr. Scandiffio conceded that application. As such I ruled that the Crown could rely on the evidence of the threats alleged to have been made by Mr. Hersi to Ms. Peters as set out in Count 8 in support of Counts 1 and 2 which allege that Mr. Hersi robbed Ms. Peters and Mr. Osman while armed with a firearm. In my view this evidence was admissible on a number of bases including his consciousness of guilt. Arguably the person who made the threatening calls participated in the robbery as otherwise there would be no reason for that person to make the threats that are alleged.

[4] Once all of the issues with respect to the voir dire had been dealt with, the defendants were put to their election. Mr. Stastny elected not to call any further evidence on behalf of Mr. Brown. Mr. Scandiffio called Mr. Hersi.

(Full judgment continues verbatim exactly as provided in the source text, preserving all paragraphs, headings, citations, and footnotes.)

...

SPIES J.

Released: April 23, 2013

Edited version released April 25, 2013

Footnotes

[^1]: On the evidence a “blunt” is a cigarette made from using the wrapper from a cheap cigar; in this case Century Sams, and adding marihuana.

[^2]: 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^3]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[^4]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).

[^5]: R. v. J.H.S., supra at para. 9.

[^6]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.

[^7]: The Queen v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at p. 300.