COURT FILE AND PARTIES

COURT FILE NO.: 13-10000598-0000

DATE: 20131114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. ITHEMAR BROWN, ABEDNEGO WYNN and NATHAN ELVIE

BEFORE: Justice Spies

COUNSEL:
Danielle Carbonneau, for the Crown

Taro Inoue, for the Defendant, Ithemar Brown

Marco Sciarra, for the Defendant, Abednego Wynn

Hans Cedro, for the Defendant, Nathan Elvie

HEARD: September 30 to October 31, 2013

rEASONS FOR decision ON Sentencing

Determination of whether a firearm was used in the robbery

Introduction

[1] On October 31, 2013, following a trial before me with a jury, the defendants were each convicted of two counts of robbery. Mr. Brown was also convicted of simple possession of cocaine. Following the jury’s verdict, Ms. Carbonneau stated that for the purpose of sentencing she wished to call evidence to attempt to establish that a real firearm had been used in the robbery. The jury, however, had not made a finding that any firearm had been used as they could have reached their findings of guilt on the two robbery charges by one of three possible ways. The jury could have found that threats were uttered by the man in white; alleged to be Meshach Brown, who is a defendant in a separate proceeding dealing with the same alleged robbery and that Mr. Wynn used a firearm as alleged by the complainants. Alternatively, the jury could have reached their verdict by a finding that threats of violence alone were made or that only a firearm was used.

[2] Before sentencing the defendants on the robbery charges, I must determine the relevant facts of the two robbery convictions made by the jury. Whether or not a firearm was used is a significant factual issue that will impact on sentencing that is not resolved by the jury’s verdict, particularly since a finding that a real firearm was used would trigger certain minimum sentences. It is clearly an aggravating factor that the Crown must prove beyond a reasonable doubt. A finding as to whether or not a firearm was involved will also determine the relevance of evidence on the sentencing hearing. Accordingly, it was agreed that I would first consider the trial evidence and submissions made by counsel to the jury and determine whether or not I am satisfied beyond a reasonable doubt that a firearm was used. The matter was adjourned to November 15, 2013 so that I could make that determination and provide my decision to counsel. On November 15th we will then be in a position to determine how the balance of the sentencing hearing should proceed.

The Law

[3] In a case like this which has been decided by a jury, as the sentencing judge I must determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. Pursuant to s. 724(2)(a) of the Criminal Code, I must accept as proven all facts, express or implied, that are essential to the jury’s guilty verdict. This may not require me to arrive at a complete theory of the facts; I am required to make only those factual determinations necessary for deciding an appropriate sentence in the case at hand; see: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 16; see also R. v. Roncaioli, 2011 ONCA 378, [2011] O.J. No. 2167 (Ont. C.A.) at para. 59.

[4] In Ferguson , the court provided further guidance as follows:

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”... The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty,” … and must not accept as fact any evidence consistent only with a verdict rejected by the jury.

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts … In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” …To rely upon an aggravating fact … the sentencing judge must be convinced of the existence of that fact …beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on the balance of probabilities… It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. …[all citations omitted]

The Circumstances of the Robbery

[5] In light of the jury’s finding, I accept as a fact that at about 5:15 a.m. on the morning of July 30, 2011, Mr. Drakes and Mr. Pemberton were robbed by six to eight men in their hotel room at the Delta Chelsea in Toronto. The jury must have found that Ithemar Brown, Abednego Wynn and Nathan Elvie were part of that group. It was alleged by the complainants that the man in all white; Meshach Brown, uttered threats to harm them and Mr. Wynn was the gunman. It was never part of the Crown’s case that someone other than Mr. Wynn had the firearm or that there was more than one firearm. Although, as I will come to, the complainants’ evidence describing the gunman and what he did varied considerably from time to time, they both took the position at trial that there was only one gunman and that person was Mr. Wynn.

[6] This was the start of Caribana weekend and the complainants and two of their friends had been out on Yonge Street when they ran into four young women; one of whom was alleged to be Tamara Brown; originally a defendant in this proceeding. I determined that she be acquitted of all charges following an application for a directed verdict.[^1] The group of women also included Farisha Besley, who was called as a Crown witness. She identified Tamara Brown as one of the three women she was with. The four women were invited to the complainants’ hotel room.

[7] The complainants testified that after they returned to their hotel room with the four young women, that one or more of the women were seen on the balcony on their phones. Shortly after this there was a knock at their hotel room door and based on the evidence of Mr. Drakes, the blonde woman, who was neither Ms. Brown nor Ms. Besley, opened the door and as a result a group of people entered their room. At this point the complainants told people to leave and some did including the four women and on the evidence of Mr. Drakes, the complainants’ two friends. It was alleged that the robbery then took place behind the closed door to the complainants’ hotel room. The jury would not have needed to make any findings of fact as to the lead up to the robbery but I presume that they found it occurred behind a closed door as I was careful in my charge to distinguish between what was needed to prove a robbery versus a theft. The theory of the Defence was that the complainants were hosting a party in their hotel room, that it was crashed, that matters got out of control and that a number of people took items belonging to the complainants in the chaos that ensued. That theory must have been rejected by the jury.

Findings of Fact Necessary to Sentencing

[8] At trial, according to Mr. Drakes, the guy in all white was doing all the talking and he was the one who told them to be quiet and said that if they did not want to get hurt they would do what they were told. Mr. Drakes also testified that the guy in white was pretty much the last to leave and he told them that if they went to the authorities he would come back and kill them. He had Mr. Pemberton's passport in his hand and knew where he lived. On a prior occasion Mr. Drakes testified that it was the gunman who made the threat but he did not adopt that evidence at trial. I accept for the purpose of sentencing, that if I am not satisfied that a firearm was used in the robbery that there must be a finding that a threat of violence was made in order to be consistent with the jury’s finding of guilt in respect of robbery.

[9] I conclude then that the only factual finding that must be made in order to proceed with sentencing is whether or not a firearm was used by Mr. Wynn and if I so find, there will be the further evidence and submissions on the question of whether or not that firearm was real.

[10] In considering the question of whether or not a firearm was involved, I have only the evidence of the complainants that Mr. Wynn was the gunman and the statement of Ithemar Brown that he did not see anyone with a firearm. Although the defendants, including a man in a blue jacket identified by Ms. Besley as Mr. Wynn, were seen out on Yonge Street shortly before the robbery and coming into the hotel lobby and all but Mr. Wynn were seen leaving the hotel, none are ever seen with a firearm on any of the surveillance video nor behaving in a manner suggesting that they were carrying one. Furthermore, the YouTube video which, as I will come to, I find refers to the theft of items from the complainants and shows these defendants in possession of property stolen from the complainants, makes no mention of any facts to support a robbery as opposed to a theft. No reference is made to the use of a firearm and no one appears to be in possession of a firearm in the video.

[11] As I will explain in some detail, the evidence of the complainants on the issue of the presence of a firearm and that Mr. Wynn was the gunman is problematic for a number of reasons. First of all, there are serious credibility issues with their evidence as there are significant inconsistencies in their evidence concerning the robbery. These inconsistencies are not the type one would expect from honest and reliable witnesses. Given the complainants were sitting side by side and witnessed the same events, I would expect them to only have slightly different recollections of the events leading up to, during and after the robbery. Furthermore, there were very serious flaws in the identification procedure used by police that in my view tainted the identification evidence of the complainants. In addition, there were significant inconsistencies in the evidence of the complainants identifying the defendants as some of the persons who robbed them and that Mr. Wynn was the gunman which is, at a minimum, likely the result of the flawed identification process. Accordingly, I gave the jury a strong caution about relying on the eyewitness identification evidence of the complainants. I must consider and apply that same warning in reaching my decision.

(continued verbatim through paragraph [71])

SPIES J.

Date: November 14, 2013

[^1]: R. v. Brown, 2013 ONSC 6811.

[^2]: This Preliminary Hearing was for the charges against Ithemar Brown, Mr. Elvie and Ms. Brown.

[^3]: This Preliminary Hearing was for the charges against Mr. Wynn and three others who will be tried separately.