SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-10000598-0000

DATE: 20131220

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: December 2 and December 12, 2013

rEASONS FOR decision ON Sentencing

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 and failure to comply with a term of a probation order imposed on March 30, 2009 namely not to possess drugs prohibited by the Controlled Drugs and Substances Act. The defendants are now before me for sentencing. Mr. Brown and Mr. Wynn are step-brothers; Mr. Elvie is related to Meshach and Shadrach Brown who are defendants in another proceeding related to the same robbery.

[2] The jury did not make a finding that a firearm had been used as they could have reached their findings of guilt on the two robbery charges by one of three possible ways. Before hearing sentencing submissions, I determined that the Crown had not proven beyond a reasonable doubt that Mr. Wynn produced a firearm during the course of the robbery as alleged by the two complainants.[1] Accordingly the defendants will be sentenced on the basis that a robbery of the complainants occurred during which the man in white (alleged to be Meshach Brown) made a threat of violence.

The Facts

(a) Circumstances of the Offences

[3] In light of the jury’s findings, 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 that Mr. Wynn was the gunman. 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 should be acquitted of all charges following an application for a directed verdict.[2] 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.

[4] 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. Although Mr. Drakes was not consistent in his evidence as to how the robbers entered the room and his evidence was at odds with the evidence of Mr. Pemberton on this point, it seems that six to eight men including the defendants were let into the room and that the young women and the complainants’ two friends left the room at the same time.

[5] 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.

[6] 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 therefore 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, since I was not satisfied that a firearm was used in the robbery, that there was a threat of violence made by Meshach Brown as testified to by Mr. Drakes at trial.

[7] At the initial sentencing hearing Ms. Carbonneau argued for the first time that violence was used in the commission of this robbery in that Mr. Pemberton testified that the man in white forced his way into the room. I pointed out to her that she did not take this position during the pre-charge conference or in her closing before the jury nor was this option put to the jury. In any event, I would not be prepared to make such a finding on the evidence the jury heard. I deal to some extent with the different versions of how the robbers got into the complainants’ room that were testified to by Mr. Drakes and how his evidence differed from Mr. Pemberton’s at paragraph 14 of my first decision on sentencing. On Mr. Drakes’ version of events either the young woman with the blonde hair or the man in white let the robbers in. No force was used. On Mr. Pemberton’s version of events the men “bum rushed” the door after it was opened as he was trying to keep it closed. There was no violence; he spoke only of a verbal argument that he had with the man in white. I therefore find that violence was not used in the commission of this robbery.

[8] Ms. Carbonneau also argued that the robbery had been pre-planned at least once the women were in the hotel room. She essentially re-argued her submissions as to why I should not grant Tamara Brown’s application for a directed verdict. She submitted again that Tamara Brown or one of the others called one of the defendants to set it up and that the jury could have made such a finding. She conceded that the jury would not have needed to make such a finding in order to reach the conclusions that they did.

[9] Although I considered this argument only from the perspective of Tamara Brown, I granted her motion for a directed verdict.[3] For the reasons set out in that decision, I find that there is insufficient evidence to find beyond a reasonable doubt that she or any of the other three women called any of the defendants for the purpose of setting up this robbery. The only evidence of a call came from Ms. Besley, a Crown witness, and that was simply to tell her boyfriend, Meshach Brown, where she was. It was never suggested to Ms. Besley that her call was part of a plan to commit a robbery or that she was even aware of the fact that a robbery occurred after she left the hotel room. As for the defendants and the others they were with, they came into the hotel together, based on the hotel surveillance, but there is no evidence that they did so in order to commit this robbery. They are all related or friends and were seen out on Yonge Street together before the robbery. They could have come to the hotel because of Ms. Besley’s call to Meshach Brown or for a party somewhere in the hotel. Furthermore there is no evidence of what happened once they got to the floor where the complainants’ room was. In fact, there is a significant gap in time (the period between 5:15 a.m. and 5:25 a.m.) where it is unknown what took place in the hotel immediately prior to the robbery. If there was any planning, I could only find that it happened on the spur of the moment once they got there. I therefore am not prepared to find that this was a planned robbery as opposed to a spur of the moment event.

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SPIES J.

Date: December 20, 2013

Edited: December 20, 2013