Introduction

[1] Kendell Clarke is charged with attempted murder and having committed an aggravated assault on John Lourenco. These charges arise out of an altercation on Sunday, July 8, 2012, just after 9 o’clock in the evening, when he is alleged to have slashed John Lourenco a number of times in a knife attack steps away from the Oakwood Café at 359 Oakwood Avenue in Toronto. John Lourenco had been drinking beers there moments earlier in the company of his friend, Tony Valadao, after having an angry face to face confrontation with Mr. Clarke about a half hour before that.

[2] There are two issues here: (i) whether Kendell Clarke was the assailant who attacked John Lourenco with a knife, and (ii) if so, whether Kendell Clarke had the specific intention to kill John Lourenco. Mr. Clarke testified in his own defence. He acknowledges having had an angry verbal altercation with Mr. Lourenco about a half hour earlier that evening before the knife attack but he says he was nowhere in the vicinity at the time of the attack.

[3] If I am not satisfied beyond a reasonable doubt that Kendell KENDELLClarke attacked John Lourenco, then he must be acquitted of both charges. However, even if I am satisfied beyond a reasonable doubt that Kendell Clarke was the assailant, he must be acquitted of the charge of attempted murder and may be convicted only on the lesser charge of aggravated assault, unless I am satisfied to the same standard that he had a specific intention to kill John Lourenco. Defence counsel did not challenge the Crown’s assertion that the injury caused and the harm done to the victim meets the test for an aggravated assault.

[4] In considering the entirety of the evidence relative to those questions, I found that I did not believe the evidence of the accused, Kendell Clarke or his claim that he could not have been and was not the perpetrator and I am not left in a state of reasonable doubt. His willingness to lie, either to me under oath, or to have admitted his willingness to lie about where he lived shortly before the assault, undermines his credibility. His evidence did not make sense. His claim that he would never have gotten angry enough to launch such an attack was undermined by the contrary evidence.

[5] Further, I am satisfied on the whole of the evidence that the Crown has proven that Kendell Clarke was the assailant. I reach that conclusion based in part on the recognition based identification evidence provided by the two key Crown witnesses, the victim, John Lourenco, and his friend, Tony Valadao. Both of them were well acquainted with the accused from the Oakwood Café.

[6] In summary, I am satisfied beyond a reasonable doubt that the assailant who attacked John Lourenco on the evening of July 8, 2012, close to the Oakwood Café on Oakwood Avenue in Toronto was this accused, Kendell Clarke. However, notwithstanding the submissions of Crown counsel, I am not satisfied beyond a reasonable doubt that the accused had the specific intent to kill John Lourenco that is required to found a charge of attempted murder. He will be acquitted on the charge of attempted murder, but convicted on the charge of aggravated assault.

Overview of the Facts

[7] The three individuals who are central to these events, Kendell Clarke, John Lourenco, and Tony Valadao, were all regular habitués of the Oakwood Café. The Oakwood Café is a small neighborhood bar located on the east side of Oakwood Avenue, right at the intersection of Rogers Road.

[8] Neither Mr. Lourenco nor Mr. Valadao knew Mr. Clarke personally, but both had been drinking at that establishment for some years. They had seen him numerous times before, either in that bar where Mr. Clarke also was “a regular,” or in the neighborhood. Mr. Clarke lived at 372a Oakwood Avenue. That was just a short stone’s throw across the street, just a couple of buildings northwest of the intersection, but still within easy sight of the Oakwood Café.

[9] Mr. Clarke admits that he lived at that address up until at least March of 2012, but by the time this attack took place in July he claimed that he had moved out of the neighborhood and was living in Mississauga with a friend and his girlfriend.

[10] The victim, John Lourenco, is 57 years old. He does renovations for a business. He lives in that neighborhood and has frequented the Oakwood Café for many years. Mr. Lourenco said he went to the Oakwood Café 3 to 4 times a week. He saw Mr. Clarke there 2 to 3 times a week and claimed to have known him for 2 years. On his own evidence, Mr. Clarke admits to having been in the Oakwood Café many hundreds of times, at a minimum, in the 3 to 5 years that he lived in that vicinity.

[11] The other main civilian witness is Tony Valadao. He is 64. He and John have known each other and been friends for a long time, perhaps as many as 20 years. Tony was also at the Oakwood Café that evening and a regular patron. He lived in the vicinity. He also claims to have been very close when the attack took place and to have seen the assailant.

[12] Based on the evidence of each of these three individuals, there is no doubt that they were able to recognize each other as people who lived in the same small neighborhood area of the city, in the vicinity of Oakwood Avenue and Rogers Road, and who frequented the same establishments and the same stores in that area, and in particular who were regular patrons of the Oakwood Café.

[13] Mr. Lourenco went to the Oakwood Café early in the evening of July 8, 2012, after attending a barbecue at a house on Robina Avenue with his girlfriend Liz. He had consumed a half a liter of wine plus one glass, and a beer before he got to the Café. After the barbecue, he said he and his girlfriend had sex, but then his girlfriend said she was going to go to the Café to purchase cigarettes. He did not believe her. He knew she wanted to go to buy drugs.

[14] A short while later after she left, he went out. He made a couple of stops and then he went to the Oakwood Café. When he arrived, he found his girlfriend, Liz, in the company of another guy, a black male with dreadlocks who he thought was there to deliver drugs to her. He accused him of being her “pizza boy”, an expression meant to refer to a person who delivers drugs. Mr. Lourenco described him as a stocky black male, 5’7’’, with dreadlocks and wearing a red basketball tank top. Mr. Lourenco was angry. He was shouting and accusatory towards the “pizza boy.” Shortly after that exchange, that black male with dreadlocks left. According to Mr. Lourenco, his girlfriend Liz left the bar as well.

[15] It was not long after that the second black male arrived in the bar. Mr. Clarke acknowledged that he was that black male. Mr. Lourenco said that Kendell Clarke approached him. He challenged him, asking what it was that Mr. Lourenco had said about his friend, the “Pizza Guy”, moments earlier. He yelled “What are you saying about my friend?” Lourenco claims to have told Clarke to “bugger off” or “f—k off” and “leave me alone.”

[16] However, that did not end the exchange of words between them. It quickly escalated to become heated and angry. It involved the two of them yelling at each other, face to face, only a short distance apart. Mr. Clarke admits that he was the other participant in that altercation. He claimed that Mr. Lourenco’s diatribe towards him included despicable racial epithets. Mr. Lourenco called him a “nigger” and called his friends “monkeys”.

[17] Mr. Lourenco testified that the accused challenged him to “go outside to settle it!” He understood that if he went outside he would face a physical fight of some sort with Mr. Clarke. Mr. Lourenco did not want to have a physical fight. He declined to go outside. Then the owner of the bar interceded. She told Mr. Clarke to leave.

[18] Mr. Lourenco described the person with whom he had that altercation as a black male with a clean shaven head or a very short cut, a man with a skinny build who was wearing a black sleeveless undershirt, and black basketball or track pants. That is exactly how the accused appears in the video surveillance footage from the camera located over the rear parking lot behind the Oakwood Café. He is seen driving his motorcycle east out the laneway towards Robina Avenue at about 8:59 pm, about 15 to 20 minutes before the attack takes place.

[19] After Mr. Clarke was escorted out of the bar, Mr. Lourenco had another beer. 15 to 20 minutes passed and then he left the Oakwood Café, exiting onto Oakwood Avenue. As he started to walk, sauntering in a southerly direction, he only got about three doors down the street, about 15 feet south of the bar and just south of the crosswalk at the intersection of Oakwood Avenue and Rogers Road. That was when he saw the assailant hidden in the shadows of a doorway to his left. He saw him pull a knife from his back area as they stared at each other, and then commence his attack. The assailant jumped out from the shadows in that doorway and started to attack him viciously with a knife. The attack took place at about 9:15.

[20] Mr. Lourenco was able to fend off the attacker after he took several serious blows to his arm, stomach and forehead. But he also had two or three seconds to see the attacker’s face before that attack commenced. He said he got a very good look at that person’s face. He testified that he could see plainly that the attacker was the person he now knows to be Kendell Clarke, who he had argued with in the Oakwood Café, 20 to 30 minutes earlier.

[21] Mr. Lourenco sustained serious injuries as a result of this assault. Those injuries required 23 stitches to his left hand and further surgery to repair that damage, six staples to close his abdomen wound and 13 staples to close the stab wound he sustained on his forehead. There was also an abrasion on his neck from the knife attack, an abrasion that might have cut his throat and killed him if he had not raised his arm to defend himself and suffered the injuries as a result to his left hand. He was bleeding profusely after the attack. Photographs of the blood on the floor in the Oakwood Café where he sat while he waited for the police and ambulance services to arrive, attests to the seriousness of his injuries.

[22] P.C. Mokerich arrived on scene at 359 Oakwood Avenue at 9:18 PM on July 8, 2012, after having received the dispatch call at 9:17 PM. Those times confirm that the knife attack took place at or about 9:14 or 9:15 PM. She was only a minute or so away from the location when she received the call.

[23] Numerous photographic exhibits were introduced at trial. Exhibit 4-2 shows the front of the Oakwood Café facing Oakwood Avenue, with the graphics shop located in the same building immediately to the south, a pizzeria business located in the next building immediately to the north, and an alleyway at the south end of the building that includes 359 Oakwood Avenue, just south of the graphics business. The Oakwood Café is immediately north of that.

[24] The knife attack is partially captured on surveillance video from a store located just down the street, but the victim and the assailant are only visible from the waist down. Nevertheless, one can see the attacker jump out and see Mr. Lourenco and the attacker dancing around each other as Mr. Lourenco tried to avoid and fend off the attack. The video shows a slim or skinny black male who was wearing a gray hoodie, dark or black pants, black shoes, and a gray head cap, run south on the street past the surveillance camera. He is pulling the hoodie over his head as he passes the camera, and turning his head to avoid being photographed. A second or two later, Tony Valadao can be seen walking south on Oakwood Avenue. He is about 20 feet behind the fleeing assailant.

[25] There was also surveillance video of the parking area behind the Oakwood Café, taken by a camera outside at the back of 355 Oakwood Avenue. It shows a couple of parked cars, an open area, and the laneway that heads east towards Robina Avenue. It also showed Mr. Clarke coming outside and pacing in the parking area. He can be seen making angry gestures and pounding his fist into his hand as he gesticulates towards the back of the buildings, and speaks to his friends at about 8:45 PM, about a half hour prior to the assault. He then disappears from sight, but then reemerges at 8:59. At that time he can be seen putting on his helmet, getting on his motorcycle and driving away from the scene by heading east into the alleyway to Robina Avenue, and then north on Robina out of sight.

Analysis

[26] The main issue in this case is the identity of the assailant, and whether Kendell Clarke, is the person who attacked Mr. Lourenco that evening. Given that Kendell Clarke testified at his trial, in conducting my analysis of the evidence I must first consider his testimony applying the methodology in R. v. W. (D.), [1991] 2 S.C.R. 742. If I believe his evidence that he did not commit this attack on John Lourenco or it leaves me with a reasonable doubt, then I must find him not guilty. However, even if Kendell Clarke’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of the offences, I may convict him only if the rest of the evidence that I accept proves his guilt beyond a reasonable doubt.

Evidence of Kendell Clarke

[27] At the time of the assault, Kendell Clarke was working full-time for Pusateri's, a high-end Toronto grocery store, as a cook in their prepared foods division. He said that he was living at 959 Marygrace Avenue in Mississauga. That was where he was arrested a month after the attack. He said he moved there in March 2012, but he did not change the registration of his driver’s licence at that time. He said he lived at the Marygrace Avenue address with a friend, one Roy Hutchinson and his girlfriend Bianca and her child. The wife of the landlord of that apartment testified but she was not able to contribute to the evidence in any meaningful way relative to whether Mr. Clarke ever lived at that address.

[28] Before that, Mr. Clarke admitted having lived in the Rogers Road and Oakwood Avenue area near the Oakwood Café. He lived first at 244 Oakwood Avenue, just south of the café and then at 372a Oakwood Avenue, but he claimed that he only lived at the latter address across the street from the Oakwood Café for three months from January to March 2012. By the time of the assault, he said he had moved away from the area to Mississauga.

[29] During the time that he did live there, however, he went to the Oakwood Café many times – he said at least 500 and perhaps as many as 1000 times. He worked from the morning until four in the afternoon, and then would stop by the café for a cappuccino or espresso. Mr. Clarke was at the Oakwood Café on the evening of Sunday, July 8, 2012, and got into an argument with John Lourenco. He had seen him in the neighborhood for three years, but claimed he had never spoken to him before and said John Lourenco had never spoken to him before that date. The same was true with Tony Valadao. He had seen him as well, up and down the street regularly and at the Oakwood Café for several years.

[30] Kendell Clarke described John Lourenco as having been in an argumentative mood that evening. As he entered, Lourenco said “here comes another one of your pizza boys,” referring to people who deal drugs. The accused did not like that. He did not appreciate John Lourenco accusing him of being a drug dealer. Mr. Clarke told Lourenco to stop telling people that he was a drug dealer. Lourenco started swearing at him and called him a “nigger.” The confrontation escalated.

[31] That was when the owner of the bar intervened. Mr. Clarke admits that she told him to leave. Clarke protested. He asked why she was “sticking up for her racist customers?” Then, Mr. Lourenco called out that he was a “monkey”. Mr. Clarke admitted he was upset that Mr. Lourenco called him a “nigger” and "monkey. Mr. Clarke was angered by Mr. Lourenco’s verbal insults but he claimed that he calmed down quickly. He said it did not bother him being asked to leave by the owner, even though the instigator of the altercation who was hurling racial insults at him was permitted to stay. He also confirmed, however, that he had been asked by the owner to leave the bar on other occasions before. This was not a first time event.

[32] However, there was no fight that evening and he simply left the bar, went calmly to the parking lot behind the Oakwood Café, got on his motorcycle and drove away. He claimed that he went up to Eglinton Avenue, proceeded west on Eglinton and took that route home to the place he was staying on Marygrace Avenue in Mississauga.

[33] Mr. Clarke denied that he returned to the Oakwood Café wearing a gray hoodie sweatshirt and he denied having any part in the assault on John Lourenco. He admitted that he was angry and offended, but insisted that he had simply gotten onto his motorcycle and driven away. When he left on his motorcycle, he can be seen wearing a black sleeveless T-shirt, black pants and white shoes. Those are the same clothes that John Lourenco said the assailant was wearing when he was in the bar. Mr. Clarke denied that he changed his clothing.

[34] He was asked but could not explain why Tony Valadao would accuse him of attacking John Lourenco with a knife. They had never had an altercation before. His only explanation for Mr. Lourenco’s language was that he must have been a racist. He said that “most of those guys, made racist comments,” referring to the Portuguese patrons of the Oakwood Café, such as Mr. Lourenco and Mr. Valadao.

[35] Kendell Clarke was surprised that the owner of the bar, asked him to leave rather than John Lourenco, but in his view, it was not about “colour” or “the racist comments made by Lourenco,” but rather about preserving her clientele.

[36] Mr. Clarke was asked why he did not change the registration on his driver’s licence when he moved to Mississauga in March, as is required under the Highway Traffic Act. He said he did not regard it as important regardless of what the law may have required. He admitted he had changed his residence address on his driving licence previously, a few times, and on February 22, 2012, he obtained a new licence to ride his motorcycle. But as of March 2012, only a month later and three to four months before this incident, he said he had moved to the Mississauga address. Contrary to that claim, however, he was confronted and contradicted by a police occurrence report dated April 25, 2012. He was stopped on that date at the corner of Oakwood Avenue and Vaughan Road in a random police road check.

[37] At first, Mr. Clarke denied that he had been stopped. He was insistent that no road stop had taken place. Then, after denying it several times, all of a sudden the lights went on and he changed his story. He said “Oh yes! Now I remember!” He was stopped that night when the licence plate on his motorcycle flipped up hiding the plate number. He had testified before me that by that time he had moved out of the area, yet on April 25, 2012, he told the police officer that he still lived at 372a Oakwood Avenue. He did not give the officer an address in Mississauga.

[38] He was questioned aggressively about why he would have lied to the police about this? His answer was telling. He said that as a black man, he “hate[s] the police.” He said he did “not give a damn about the police.” There was venom in his voice when he told the Crown that there was no way he would have told any police officer from 13 Division where he actually lived. He claimed the police had targeted him many times for things that he had not done and had thrown him through a plate glass window and injured him even though no police officers were ever charged.

[39] As Crown counsel challenged him about having threatened Mr. Lourenco to come outside to talk about their argument, I watched Mr. Clarke become increasingly agitated as he testified, and he acknowledged that he had called him out, but he said that was “just to talk about it.” He also acknowledged that he may have challenged him to “Come outside and call me a monkey!” but insisted he had not attacked Mr. Lourenco even though he got mad at him. He said he calmed down and then left on his bike.

[40] Kendell Clarke insists that both John Lourenco and Tony Valadao are confused when they both identified him as the attacker in separate photo lineup sessions. He said others were also arguing with John Lourenco that evening, even though admitted he had challenged John Lourenco not to call him a drug dealer and admitted he challenged him to “come outside.”

[41] On the first and second legs of the R. v. W.(D.) test, I find that I have no hesitation in rejecting the evidence of the accused. I do not believe Kendell Clarke and I am not left in the state of reasonable doubt by his testimony. There are three reasons I have reached this conclusion:

(i) First, it defies common sense that when he challenged John Lourenco to come outside, Clarke wanted to calmly and politely ask John not to refer to him as a drug dealer in that public place. That was not the flavour of their altercation. He tried to portray what happened that way to distance himself from the knife attack.

However, his testimony that he was calm is called into question, if not contradicted, by the video surveillance evidence from the rear parking lot camera. That evidence shows that the first time Kendell Clarke exited from the Oakwood Café, he was pacing angrily in the parking lot, banging his fist in his hand and gesticulating to his friends and towards the bar with aggressive and angry motions. These were not the actions of someone who was calmly walking away from a fight to calmly leave and drive home on his motorcycle in a leisurely manner.

It is plain that the altercation in the bar was a significant one, a screaming match between John Lourenco and Kendell Clarke. There were very loud and angry words being spoken between the two men. Their faces were only a short distance apart as they yelled at each other. In spite of his claim that he was calm, Kendell Clarke also admits that the bar fight was escalating enough that the owner broke it up and told him to leave. Regardless whether the fault was that of John Lourenco or Kendell Clarke, plainly it was a serious situation that was escalating and that had the potential to turn into a serious physical altercation if the owner of the bar did not intervene.

Looked at in that light, it defies common sense or belief that Kendell Clarke would or could have been approaching the matter in the calm and rational manner he suggested he was. Instead, he was angry. He plainly wanted John Lourenco “to come outside” so that the score could be settled. He wanted physical retribution for the insults that had been directed his way by a man he said was a racist, a man who had called him a “nigger” and he and his friends “monkeys.”

(ii) Second, I do not believe the evidence of Kendell Clarke that he had nothing to do with this assault because he was caught lying during his testimony before me relative to where he lived. He testified that he moved to Mississauga in March, yet when asked where he lived when stopped by police on April 25, 2012 he told them he lived at 372a Oakwood Avenue. He testified before me that he intentionally lied to police in giving that address.

Depending on which version of events one accepts, either he was telling a lie in claiming he no longer lived on Oakwood Avenue, or if he did not live there anymore, he was telling a lie in claiming on April 25, 2012, that he did still live at the address shown on his licence. He said he moved out of the area in March 2012, and yet he was willing to lie to the police a month later to tell them that he still lived at 372a Oakwood Avenue. He admits to lying to the authorities. He is willing to lie to the police. These facts do not enhance Mr. Clarke’s credibility in my assessment. He appears to be a person who will lie in particular circumstances if it suits his purposes. In my opinion, this was one of those occasions. He was willing to allow the police to think that he lived in that area at that time, but now, having told the court that he moved out of the area a month before, he has been caught fabricating where he lived subsequent to the point in time that he wants this court to believe he moved out of the area.

It is easier in my view to conclude that he was not lying when he told the officer on April 25, 2012 that he still lived at 372a Oakwood Avenue, but that he lied about that now in his testimony, telling the court that he had moved to Mississauga by then. He had no reason to lie in April.

Yet now he has a reason to geographically distance himself from these events, and thus from that area. However, I found that to be problematic because (i) he actually was in the area at the time that he was pulled over for that random stop on April 25, 2012, by his own admission, and as recorded by the police occurrence report, just as (ii) he was in the area on the evening of July 8, 2012, only two and a half months later, and admitted being there at that time as well. Kendell Clarke asks the court to believe that he only visited on those occasions, having moved to Mississauga, but it makes more sense to conclude on this evidence that he still lived in that neighborhood, and that is why he went to the Oakwood Café for an espresso or cappuccino after work on July 8, 2012, such a long way from Pusateri’s where he worked and from Mississauga where he now claimed to live.

I find that Mr. Clarke still lived in the area at 372a Oakwood Avenue, and he was telling the truth to the police at that random stop. I also believe that he still lived there at the time of this assault. He had no reason to lie, and yet his explanation that he would never tell the police the truth was problematic, regardless of what the truth may have been. The lies only emerged during the course of this trial when he needed to distance himself from the Oakwood Avenue and Rogers Road area in order to try and distance himself from this assault.

(iii) The third and final reason that I have rejected Mr. Clarke’s evidence relates to his inability to control his anger. He tried to paint himself as an individual who could control his anger in the kind of circumstances that presented themselves to him in the Oakwood Café that evening, but the evidence showed the contrary, that Kendell Clarke cannot control his anger. Not only does the video surveillance tape from 355 Oakwood Avenue show him being angry, agitated and pacing, as he hammers one fist into his open palm and points back toward the back of the Oakwood Café seeming to refer to something that has just happened, but I also witnessed him lose control of his anger in court.

When Tony Valadao calls him a “c---sucker” in the course of doing the police photo lineup on July 11, 2012, and as that video was being played before the court, at first Kendell Clarke started to laugh out loud in court. Crown counsel jumped up to note for the record that Mr. Clarke was laughing over what was happening, and insulting the court with that conduct. In that instant, his personality changed. He became angry and aggressive. He yelled out that the whole matter was a joke, but that his life was at risk. He started swearing in the courtroom, at the process, and at the witness. We had to break to provide him with an opportunity to calm down, and regain his composure.

This behavior was consistent with the events as they appear to have unfolded that evening at the Oakwood Café. I find that Kendell Clarke was kicked out of the bar because he lost his own temper in that altercation with John Lourenco, and then escalated it by calling him outside so that they could settle the score in a physical fight. The owner was not prepared to let that happen. She expelled Kendell Clarke from the Oakwood Café for that conduct. This was not the first time that he was expelled from that bar.

This evidence is neither consistent with nor supportive of the image he seeks to portray. He was expelled from the Oakwood Café because he was angry and had called John Lourenco outside for a physical altercation. That frame of mind was not one directed towards a peaceful resolution of the dispute. He had been insulted. He was angry and he wanted retribution. It is evident that Mr. Clarke has anger issues, not only from this evidence but from his seething expression of hatred for the police, and for the “racist” customers who he says are regulars of the Oakwood Café. He is not a person who would have calmly fluffed off the insults that were directed his way.

[42] Considering the evidence as a whole, I do not believe or accept the evidence of the accused, Kendell Clarke nor am I left in a state of reasonable doubt by that evidence.

[43] So I turn now to consider the evidence of the principal Crown witnesses and the other physical evidence, consisting principally of the video surveillance footage from 344 and 355 Oakwood Avenue and also from the three photo lineup identification sessions, two with John Lourenco and one with Tony Valadao, to consider whether I am satisfied.

Evidence of John Lourenco

[44] The substance of most of Mr. Lourenco’s evidence is set out in the overview. What is important to the central issues, however, is the credibility and the reliability of his identification of the assailant as Kendell Clarke. I found Mr. Lourenco to be an honest and credible witness, who presented his evidence well, was not shaken in any material respect in his cross-examination, admitted his shortcomings. He was also plainly and visibly upset at the attack that he had sustained. This man did not present as a person was scheming for some reason to have Kendell Clarke accused of this crime. He has no reason to accuse this person apart from his belief and identification of the accused as his assailant.

[45] Nevertheless, as Epstein J.A .observes in R. v. Jack, 2013 ONCA 80, [2013] O.J. No.519, after reviewing the applicable legal principles in an eyewitness identification case, it is essential to recognize that it is generally the reliability, not the credibility of the eyewitnesses identification that must be established.

[46] Mr. Lourenco could see the defendant’s face at the bar as they shouted at each other during the earlier verbal exchange. He said he could see that same face clearly a half hour later as he was being stabbed. He confirmed that the person that was stabbing him was the second person he had argued with, the accused, the person who had called him to go outside to settle the matter. This was the same person that he had seen two or three times a week in the neighborhood and in the bar, and who he had seen driving around in the neighborhood on his motorbike, even though he did not know his name.

[47] Mr. Lourenco testified that he did not see his friend Tony Valadao during the attack. After the attack, he said he staggered back from the attack to the front of the Café and into the bar. He thought that Tony was still at the front of the bar when he left the Oakwood Café to walk south on the street just before the attack took place, but he was not sure. He simply said Tony “could have been behind him.” He did not know. He was not focused on him, he said, but was instead “looking at the attacker.”

[48] Mr. Lourenco provided his first description of the assailant to P.C. Mokerich. He described the assailant as a black male, tall and skinny, wearing, in his words, a black “wife beater” (i.e. sleeveless T-shirt). Mr. Lourenco told her that the assailant was about 5’11” tall, and was wearing black basketball shorts or perhaps track pants, was 25 or 26 years old, but he provided no specific description of any facial features of the assailant.

[49] Within a couple of hours of the attack, Mr. Lourenco was shown a photo lineup, but although the accused’s photograph was contained within that group of photos, it was not a recent photo. That photograph showed the accused with a goatee and his hair in dreadlocks. Mr. Lourenco did not identify him.

[50] The next day, Detective Douglas of TPS learned that the provincial Ministry of Transport database contained a more recent photograph of Mr. Clarke. That was a photograph given on his last licence renewal in February 2012, when his address was still listed as 372a Oakwood Avenue, but the photograph shows no facial hair and a short almost shaved head. Mr. Lourenco had described that the assailant was an individual with short hair.

[51] In light of the existence of this second, more recent and up to date photograph of Mr. Clarke, that more closely resembled him as he presently appears, Mr. Lourenco was invited to participate in a second photo lineup on July 11, 2012, two days after the attack. On that second occasion, he identified the second of 12 photographs as the person who attacked him. That was the more up to date photograph of this accused, Kendell Clarke. He wrote “Yes” on the photo. When asked why he picked that photograph out, he told the officers that the person in that photograph had “features very similar to those of the person who stabbed me.”

[52] Defence counsel claimed that the identification of Mr. Clarke in the second photo lineup is adequate for an identification case. He referred to paragraph 55 of the dissent of Rowles J.A. in the decision of the B.C. Court of Appeal in R. v. Reitsma, 1997 CanLII 3607 (BC CA), [1997] B.C.J. No. 2314 (B.C.C.A), which was upheld by the Supreme Court of Canada at 1998 CanLII 825 (SCC), [1998] 1 S.C.R.769.

[53] The issue there was identification. The question was whether the complainant had actually “identified” the photo of the accused in a photo lineup that he was shown on the day following the incident. The appellant in that case was depicted in photograph seven. In that case, however, the complainant did not make a positive identification of the accused. Nevertheless he did note on the form that “photo number seven is similar to the suspect”. No other pretrial identification procedures were undertaken. No other photo lineup identification was provided by any other witness.

[54] The foundation for the comments provided by Rowles J.A. was her observation that the reasons for judgment of the trial judge showed that he regarded the complainant’s notes on the photo lineup as a “qualified identification” rather than as a failure to identify. But in that case the complainant plainly had not reached any firm conclusion identifying any particular photograph as being a photograph of the accused. So against that background, it is not surprising that at paragraph 55, Rowles J.A. stated:

Regardless of the view taken of the complainant’s testimony in regard to the photo lineup, however, it is not possible to elevate the complainant’s statement on the exhibit that “photo number seven is similar to the suspect” into a positive identification through an assessment of the witnesses honesty and fairness.

That comment makes sense in the context of the difficulties that the complainant had in that case making an actual positive identification of the accused. Plainly, he did not positively identify the photograph as being the accused. He merely said that photograph number seven was similar to the suspect. In my opinion, that is quite a different circumstance from this case.

[55] Here, in the second photo lineup that was conducted on July 11 with the more recent photograph of Mr. Clarke that actually resembles him considerably more than the photograph that was shown to Mr. Lourenco in the first photo lineup in the hours following the attack, Mr. Lourenco did identify that photograph number two was the person who attacked him with a knife. Having marked the face of the photograph with a “yes.” When asked by the police officer to indicate why he had identified that photograph, Mr. Lourenco wrote down that photo number two that he identified as the assailant was “very similar to the person who attacked me.”

[56] Contextually, I find this to be an entirely different kind of identification. It is not a case where the photograph is not identified as the perpetrator, as was the case in Reitsma, but a case where the photograph is identified as the perpetrator. In Reitsma, the complainant may have thought that the photograph was “similar to the suspect” but plainly he was sufficiently unsure that he would not make a positive identification of the person in that photograph as the perpetrator. That was plainly not an identification, but that was not the case here.

[57] Defence counsel also sought to undermine the weight that ought to be given to the second photo lineup identification provided by Mr. Lourenco in light of the fact that he failed to identify any of the photographs in the first photo lineup as being the assailant. As noted above, however, to put those two photographs side-by-side, it would not be surprising that the first photograph shown in the first photo lineup might not have triggered an identification instinct in Mr. Lourenco. The reason is simple. Mr. Clarke’s appearance is markedly different in the two photos.

[58] Moreover, and even though Mr. Lourenco was cautioned to try and take account of differences in hairstyle, Mr. Clarke has his hair in dreadlocks in the photo from the first photo lineup, and plainly has facial hair in the form of a goatee and moustache. In the photo from the second photo lineup, consistent with the verbal description provided by Mr. Lourenco of his assailant, the hair is cut very short, almost shaved, and it is not plain that the accused had any facial hair in that photograph.

[59] The defence also attacks the identification made during the second photo lineup because it was made three days after the attack took place when Mr. Lourenco’s memory would not have been as good as it was right after the attack. With respect, however, to my mind this ignores the foundation of the identification in this case. It is based upon recognition, not simply a first time identification of a person that the complainant had never seen before.

[60] Kendell Clarke acknowledges that he was the person having the argument with John Lourenco in the bar. John Lourenco is clear that the person who attacked him is the same person that he had that argument with in the bar. That was a person that he had seen many times over the three years or so that preceded the attack. Consequently, given that Mr. Lourenco knew that the person he had the altercation with was the person who attacked him, and given that he and Mr. Clarke had been looking each other directly in the face throughout that altercation, I do not accept that his memory would have suffered to any material extent over the course of the several days that transpired before the second photo lineup was conducted. In my view, that brief passage of time did not undermine the value or weight that ought to be accorded to his identification of Mr. Clarke on that second photo lineup as the person who attacked him with a knife.

[61] Defence counsel also challenges the quality of Mr. Lourenco’s identification based on the decision in R. v. Jack, above. Even in a recognition case, he argues, where the person was previously known to the identifying witness, the reliability of the identification will typically be greater, but the circumstances of the contact during the commission of the crime, and the opportunity that the complainant had to see the suspect is also important.

[62] In my view, Mr. Lourenco had all the opportunity he needed in this case. He testified that he had at least three or four seconds to see the face of his assailant as the attacker stood off the street waiting for him just before the attack began. Then he watched that person’s face for another four or five seconds as the attack was perpetrated while also trying to protect himself from the attackers blows with the knife using his arm. He testified that the face that he saw, the face of his assailant was exactly the same face that he looked into directly less than a half hour before as he was engaged in the aggressive and increasingly heated verbal altercation in the café with this accused, Kendell Clarke.

[63] I find that to be an important distinguishing feature as compared to the decision in R. v. Miller, 1998 CanLII 5115 (ON CA), [1998] O.J. No. 5356 (C.A.). That case also was a recognition case, but the court observed there that despite the fact that the witness knew the appellant, she had very limited time to observe the assailant in question. Unlike this case, in that case there was also the problem that the witness’s identification also conflicted with the complainant’s identification and description of the assailant in several significant and material respects. Finally, there was other evidence present in that case that supported the appellant’s theory that the witness had mis-identified the appellant as one of the assailants. Against that background, the Court of Appeal concluded that the failure of the trial judge to instruct the jury on the frailties of the eyewitness identification or the particular weaknesses of the witness’s identification was fatal to the jury’s determination.

[64] In contrast, in this case, no similar conflicting evidence was present. I have also considered how much opportunity Mr. Lourenco had to observe his assailant. I do not rely merely on the fact that there was three years of recognition within the context of the community and the Oakwood Café between these two individuals, and also Tony Valadao, who also identified this accused in a photo lineup and whose evidence is reviewed further below. What is considerably more important is that the escalating verbal altercation between Mr. Lourenco and Kendell Clarke inside the Oakwood Café before the assault provides the opportunity for the refreshing and etching into the mind of the complainant of the appearance of the person with whom he had that altercation, looking at each other face-to-face, when he finds that same person trying to slash at him with a knife only 20 to 30 minutes later.

[65] Neither am I persuaded that concerns over clothing ought to undermine this identification. John Lourenco accurately described the clothing being worn by Kendell Clarke at the time that the altercation took place inside the bar. That is the same clothing that Mr. Clarke can be seen wearing as he gets on his motorcycle to drive away. I will have other comments below to make about the clothing of the assailant as seen in the video surveillance footage. It should suffice for the present moment, however, to also note that there was no evidence here that Mr. Lourenco was ever asked whether the assailant was wearing different clothing when the knife attack took place than what he described Kendell Clarke as having worn at the time of the earlier altercation inside the bar.

[66] In conclusion, I accept the evidence of John Lourenco as both credible and reliable. He identifies Kendell Clarke as the assailant who attacked him with a knife, not out of any rancor or for any unexplained reason, but because that is the person he saw attacking him with a knife. He identifies him, because he is the same person with whom he had the altercation, who called him out to settle the score and who was then thrown out of the Oakwood Café.

Evidence of Tony Valadao

[67] Turning to the evidence of Tony Valadao, for all its claimed difficulties and arguable flaws, it is simple, direct and frankly, supportive of the complainant’s evidence. Tony’s evidence was simple although it was also filtered through the animated interpretive approach of the Portuguese translator who was present, Mr. Penner.

[68] I do not question that Mr. Penner is a fully accredited translator. However, he did acknowledge when I asked him that his approach to translation was not verbatim word to word translation, but rather the translation of interpretation, meaning, nuance and message. So I accept that within that type of interpretation presentation, there may be some inaccuracy or lack of absolute clarity relative to exactly what Mr. Valadao said, not only due to translation, but also as Mr. Penner explained, due to some of the idiosyncrasies of the Portuguese language. This is an issue with any interpretation of testimony from a foreign to the English language.

[69] Defence counsel argued, first, that I ought to regard Mr. Valadao’s evidence as unreliable because he has a prior criminal record. However, while he did breach court orders and commit assaults, it is a very dated record. The last entry was in 1998 – 15 years ago. It would not be fair or reasonable to dismiss the evidence of Mr. Valadao based on that dated record, when there is no evidence that he has had any troubles with the authorities since that time, when he is now 64 years of age, and given that a considerable part of his evidence relative to the attack and identification, even if it were otherwise called into question, finds support in the video surveillance evidence.

[70] Defence counsel also suggested that Mr. Valadao is not worthy of belief and dishonest for a second reason. He lives on payments he receives from social welfare, and yet he admitted to working “a few hours here and there” for a restaurant up the street. He gets cash payments for that work. But important to Mr. Battigaglia’s submission, he admitted he has not told ODSP that he is earning any monies from any other source. By law he ought to be doing so, but I am not prepared to hold Mr. Valadao to a standard of perfection or to reject his evidence for that reason.

[71] Even though it was not in compliance with his reporting requirements to ODSP, it seems most likely to me that Tony works a few hours at the restaurant up the street on Oakwood Avenue to obtain some additional money to assist his subsistence level life as he progresses into old age. However, even if he is not in compliance with the ODSP rules for continuing to receive assistance, that does not undermine Tony Valadao’s evidence, especially where several key elements of his testimony are independently verified on the surveillance video, as referenced below. Moreover, he admitted these uncomplimentary facts under oath. He made no effort to hide them or to try to be someone or something that he was not. He has the worn appearance of a person who has not had an easy life. He looks older than he is. He was a gravelly voiced, rough and tumble witness, but he did his best, was entirely sincere in his evidence and made a concerted effort to answer questions correctly and carefully.

[72] Tony Valadao has no ulterior motive or reason to want to implicate this accused. There was no evidence of any prior altercation of any kind between them. Mr. Clarke had no experiences of that kind to recount that might have served to undermine Mr. Valadao’s credibility or the reliability of what he claims he observed. He has no animus towards the accused. He did not come to testify before the court in order to lie, and he has no reason to do so on any evidence that was before the court or inference that could reasonably be drawn. He was also a very simple man, and it was plain in the course of certain questions that he was asked, that he did not always understand exactly what was being asked, and in certain instances questions had to be put to him in simpler terms by the interpreter in order to permit him to understand what it was that he was being asked.

[73] Mr. Valadao testified that he was in the Oakwood Café on the evening of Sunday, July 8, 2012. He came from work at his part-time job at 475 Oakwood Avenue He remembered John Lourenco sitting outside in front of the Oakwood Café. He invited John to join him for a beer. Then they went inside the bar together. He remembered John Lourenco arguing with the accused. He identified him in court as he testified. He said they were exchanging angry words. The accused said “let’s go outside because I’ll kill you outside.” I note that Tony is the only one who makes that statement. Tony's evidence was that the accused was wearing blue jeans and a sweater with a hood on it. After the accused was expelled from the bar, John and Tony stayed inside that bar and had another beer.

[74] Mr. Valadao said he left the bar at the same time that John did. John left the bar first and was “right in front of him”. He said he was “right behind John”. The accused was waiting for him in a doorway beside the sidewalk. He had a knife that was about 7 inches long. He said that the accused stabbed John in the forehead and then the arm and then John fell. There was no other evidence that John fell, though the movement of the feet in the video surveillance suggests that John may have stumbled onto Oakwood Avenue as the assailant pursued him in the direction of the curb close to the light post, and may have stumbled again as he retreated north towards the Café – it is not clear in the video footage.

[75] Then Tony said that he got blood on himself. It is difficult to see in the surveillance video that Tony has large stains of blood across his chest to his abdomen as his dramatic evidence seemed to have suggested would be found. Nevertheless, there are pinkish shadowed areas which appear on the front of his torso as he moves down the street and out of the picture frame in pursuit of the assailant. It is possible, as Crown counsel suggests, that those somewhat shadowed areas do represent blood that rubbed off from John Lourenco onto Tony as he helped John to his feet, but it is impossible to say, and perhaps the blood description was an exaggeration. However, what is clear is that the assailant went fleeing down the street and Tony went after him and was right behind him. He can be seen in this video surveillance walking down the street only 15 or 20 feet behind the fleeing assailant.

[76] Tony said he could see the assailant’s face, even if he did not know what his name was at that time. Tony testified that he knew who the accused was because Mr. Clarke was at the Oakwood Café “most days” having a coffee, speaking to the black lady who was the owner of the bar who was his friend. When asked about the regularity of Kendell Clarke’s attendance at the Oakwood Café, Tony said that Mr. Clarke was “always there.” Tony noted that he lived close by and he would regularly see Kendell Clarke on the street. He said he saw him “many or most days”, but he never saw Mr. Clarke again, on foot or driving his motorcycle in the neighborhood, after the day of the attack.

[77] Just as John Lourenco did, Tony Valadao also did a photo lineup identification of the accused. That identification took place on July 11, 2012. Tony admitted in cross-examination that he had drunk four beers over the course of the day before he went to the police station to do the photo lineup ID. It seemed clear from the evidence that that was not unusual for Tony, especially since the photo lineup took place in the late afternoon. Importantly, however, despite efforts to suggest that he must have been intoxicated, not only when he did the photo lineup but also on the earlier occasion when the assault took place, there was no evidence that he was incapacitated in any respect by intoxication. There was no evidence from the police officers that he appeared to be intoxicated, nor did they comment on any smell of alcohol as he participated in the photo lineup process. That is telling to me because the officers are trained to make those kind of observations and would have done so had they been present.

[78] In any event, Mr. Valadao said that the beers he had consumed had no impact on his identification of the accused on the day he was shown the photo lineup. As the video of the photo lineup identification by Mr. Valadao was played, the video shows him identifying the photo of the accused and, when asked why he picked that photo, he angrily tells the police officers “because that’s the c---sucker who hurt my friend John!”, and he gets increasingly agitated.

[79] As that was played on the video in court, as noted above, it gave rise to Mr. Clarke’s outburst but when Tony was asked why he had used that language, he said that that was what had come into his head – he was nervous. But he then told the police officers that what he meant to say was that “I picked him out because I see him every day. Yes, he’s there every day – but it was him [Clarke] that did that to John.”

[80] Right after he makes that statement, I found it noteworthy that the video shows Mr. Valadao becoming increasingly angry and emotional as he sits in the interview room with the police officers. He clenches and unclenches his fist and wipes his face in his hands. He is plainly in tears and very emotional about the injury caused to his friend John as the identification process comes to an end.

[81] In my assessment, those expressions of explanation, emotion and concern enhance the credibility and the reliability of his identification of Mr. Clarke. There is no evidence that Mr. Valadao had any reason to want to falsely accuse Mr. Clarke of perpetrating the assault on John Lourenco. It was also clear from the evidence that there was no opportunity for collusion between John Lourenco and Tony Valadao, and frankly, there was no suggestion made by the defence that there was any collusion between John and Tony. Indeed, the differences between the evidence that John and Tony gave is the best evidence of an absence of collusion. There is no question that there are differences in the events that they describe of what transpired just before and after the attack took place. There are different descriptions, but as well, they were in differing positions for purposes of observation, so it is not surprising that those differences were present.

[82] There were plainly some inconsistencies in Tony's evidence, some of them as compared to John Lourenco’s evidence and some which related to evidence he had given at the preliminary inquiry. Defence counsel suggested in his argument that owing to these inconsistencies, Mr. Valadao has no credibility and that the events cannot have occurred as he described them. Defence counsel acknowledged that there may be elements to his evidence that are truthful, but that overall it cannot be relied upon because regardless of whether he recognized Mr. Kendell Clarke that evening, his evidence on identification and what happened cannot be correct and therefore must be rejected. Defence counsel asserts that it is a pure fabrication. Respectfully, while there are aspects of Tony’s evidence that I do not accept and that may be exaggerated, I disagree with that conclusion.

[83] At one point, the translator seemed to be suggesting that Tony was saying that there were two suspects. That suggestion appears at the Preliminary Inquiry, but Mr. Valadao clarified that. He said no, that was not what he was saying, or at least what he meant. It was also incorrect, he said, that he had seen one of the men pull a gray hoodie over his head and then leave the bar. He clarified that the person in the gray hoodie was already outside the bar when he saw him pull the gray hoodie over his head. That example showed that Mr. Valadao was prepared to acknowledge where he had been less than in his earlier evidence, or when he wished to clarify and be more precise about what he had actually seen, while not denying that he had said something different previously.

[84] I find that the general flavour of Tony’s evidence of how the assault transpired is corroborated by the video surveillance tape taken from down the street. I accept defence counsel’s position that Tony’s evidence of what transpired is difficult to accept if taken too literally, but if the vagaries and inevitable inaccuracies of translation are added in, and the video surveillance footage is examined, then Tony Valadao’s important evidence becomes clearer and easier to understand.

[85] Tony said that the knife attack happened “in front of him.” That is a correct statement. John Lourenco was in front of Tony as they walked out of the Oakwood Café. I believe that Tony was probably 5 to 10 steps behind John. Taken literally, Tony’s evidence makes it sound closer. Nevertheless, he would have been outside on Oakwood Avenue looking south perhaps 10 to 15 feet behind John, when the assailant in the gray hoodie jumps out from a storefront just south of the Oakwood Café, and starts to attack John Lourenco. This is evident from the videotape at the time that the feet of the assailant and John Lourenco can be seen dancing around each other, but it becomes clear a second and a half later, as Mr. Lourenco retreats to the top of the video surveillance footage and as the assailant starts to head south, and looks over his shoulder. It is clear because at that second an additional set of feet can be seen to be visible at the top of the footage.

[86] Those feet clearly belong to Tony Valadao. He was behind John Lourenco, but I do not accept just because he was behind John Lourenco, and perhaps at a greater distance than he portrayed, that his evidence is not true and correct for the most part. Tony was also insistent that he had helped John to get up off the ground after the attack. He was insistent that he had gotten blood on his shirt as he helped John up and then saw the attacker run down the street and away from him. He said that the blood from the incident was on the area of his abdomen on his shirt and on his hands. Mr. Valadao is then seen in the surveillance video from 345 Oakwood Avenue seconds after the attack takes place, walking south on Oakwood Avenue following behind the assailant as he leaves. There are some shadows that are evident on his clothing, but it is difficult to see that his clothing is “covered in blood.” This seems exaggerated.

[87] One might interpret his evidence as indicating that he was right behind John rather than several steps behind, and that he picked John up with both arms around him and got covered in blood in the process, rather than simply assisting John as he struggled back towards the Café. However, to the extent his evidence is corroborated by the video surveillance footage, it suggests that he was in a position where he would have and could have seen the knife attack take place more or less directly in front of him, even if 5 to 10 feet away. That position would have permitted him to see what the assailant was wearing and to see his facial features, especially since the videotape showed that the hoodie portion of the gray sweatshirt started to slide off the head of the attacker. He needed to pull it back up to cover the appearance of his face as he turned to flee in a southerly direction.

[88] Tony testified that he went to look for the assailant, and the video evidence shows that is exactly what he did only seconds later. I agree with the Crown that the video surveillance which confirms his evidence about the things that he did after the knife attack took place assists in bolstering his credibility overall, notwithstanding that Tony’s entire delivery of his evidence had a seriousness and drama to it that seemed sincere, even if a bit exaggerated, perhaps for dramatic effect. It was plain that he regarded these proceedings as serious and grave, and his manner and delivery reflected that demeanour.

[89] Neither is there anything in the evidence of Officer Garner that undermines Mr. Valadao’s testimony to this effect, contrary to the submissions of defence counsel. Tony did not provide a description to the police on the day of the event. He did not tell the police at that time that John had been threatened in the bar. He just told Officer Garner, a junior officer, that John had been attacked and that the assailant had fled. But in fairness to him, Officer Garner also acknowledged that she did not ask him to describe what happened, nor did she ask him for a description of the assailant when she arrived at the scene shortly after the attack took place. She was simply identifying people who could provide further information, and then arranging for them to be questioned by the detectives. Tony did not provide a formal statement to her and was speaking to her in English. They spoke for less than five minutes. Plainly no formal statement was taken from him at that time. Her notes were merely her impressions of what she heard from him. I reject that those notes are a formal statement that could be used to impeach the credibility of Mr. Valadao, as I made clear to defence counsel at the time, despite his efforts to elevate their status or importance.

[90] In summary, Tony Valadao was inside the Oakwood Café and personally witnessed the altercation that took place between John Lourenco and Kendell Clarke. Tony heard Kendell Clarke call John Lourenco outside to settle the score, and he saw Kendell Clarke be expelled from the bar. He said that when he saw the assailant wearing the gray hoodie he was already outside the front of the bar. He said that he could see that it was the accused, Kendell Clarke, with whom John had had the altercation a short time before, who was the person that attacked John with a knife. He briefly assisted John, and then he walked down the street following behind the attacker, seconds after the attack took place. The video surveillance shows that he could not have been more than 10 to 12 feet north of the assailant on Oakwood Avenue at the moment when the assailant turns to look over his shoulder after the attack is completed, and then pulls the hoodie up over his head pivots on his foot and heads off in the southerly direction.

[91] I find that Tony Valadao had ample opportunity to view the attacker and he knew who he was looking at because he had seen him regularly in the neighbourhood, just as John Lourenco had, and had seen him for three years as a regular customer of the Oakwood Café. Further, given the graphic language he used, even if incited by nervousness, Tony Valadao could not have more clearly identified Kendell Clarke as the attacker then the manner that he did in the videotape of that photo lineup identification session. I accept Tony Valadao’s evidence that the individual who attacked John Lourenco was this accused, Kendell Clarke.

The video-surveillance evidence

[92] As I have noted, the knife attack on Mr. Lourenco is partially captured on surveillance video from a store located just down the street at 342 Oakwood Avenue, but the victim and the assailant are only visible from the waist or legs down. Nevertheless, one can clearly see Mr. Lourenco and the assailant dancing around each other as the attack takes place and as Mr. Lourenco tried to fend off the attack. The attacker is also visible in that footage. He is a slim black male who was wearing a gray hoodie, dark or black pants, black shoes, and a gray head cap. He can be seen running south on the street past the surveillance camera, pulling the hoodie over his head as he passes the camera. Seconds later, Mr. Lourenco’s friend, Tony Valadao, can also be seen walking south on Oakwood Avenue.

[93] The video surveillance evidence looking north up the east sidewalk of Oakwood Avenue towards the pedestrian crosswalk at Rogers Road is not perfect, but it is important. It conveys some information that corroborates aspects of the evidence of both John Lourenco and Tony Valadao, as I will explain later in these reasons. It is also important because it provides a timeline chronology of what happened and when.

[94] The first time of importance in that timeline, in my assessment, is on July 8, 2012, at 21:26:55, as shown on the face of the surveillance video. Given the agreement of counsel that the time recorded on the face of the Oakwood Avenue surveillance tape is 15 minutes, that means that in real time that entry refers to 21:11:55, 15 minutes earlier. So the chronology evident from that surveillance tape, recorded in actual agreed time, is as follows:

21:11:55

This time records the commencement of the series. It is important because it permits the location of the events to be correlated to the photograph of the storefronts and the crosswalk on the south side of the intersection at Rogers Road and Oakwood Avenue. At 21:11:55 at the top of the frame of the surveillance video coverage, one can see the base of the stop light, a light post can be seen adjacent to the edge of the roadway, and several individuals start to move in a westerly direction across Oakwood Avenue using that crosswalk. This co-relation shows that the most likely location where the assailant hid in the shadows of a doorway waiting for John Lourenco was at the second doorway south of the Oakwood Café as reflected in photographic Exhibit 4-2.

21:13:05 – 21:13:10

During this timeframe, the feet of the individual who will later be shown to have been the assailant who stabbed John Lourenco come in a southerly direction on Oakwood Avenue and hide in the doorway to the east, out of the range of vision of the surveillance camera.

21:13:20

The assailant appears to step out from the doorway for a brief second to peek around the corner of the glass storefront window and up the street, presumably to look for his target, and then slips back into the doorway and out of the video.

21:15:21

The assailant steps quickly out from the doorway for a very brief second to peek up the street a second time and then quickly slips back into the doorway and out of the video.

21:15:28

The feet of the victim, John Lourenco, can be seen heading in a southerly direction and at this moment he is walking south but is parallel to the location of the light post.

21:15:31 – 21:15:35

Two seconds later, the victim’s southerly progression stops. His feet turn left as he turns to the left to look in the direction of the attacker, parallel to the location where the attacker is in hiding.

21:15:36

The attack begins. The assailant quickly emerges from the doorway and for the next seven seconds, the feet of the victim and the assailant can be seen dancing around each other, with the victim at one point actually standing on Oakwood Avenue at the Rogers Road. intersection, while the attack is continuing.

21:15:42

The feet of John Lourenco can be seen fleeing in a northerly direction towards the Oakwood Café as the attack has ended. The attacker moves slightly south.

21:15:43 – 21:15:58

The attacker walks quickly down the street. Just before he turns to head south down the sidewalk on the east side of Oakwood Avenue, however, the positioning of the assailant’s feet show that he has looked back over his shoulder in the direction that John Lourenco is retreating, and then he completes his turn to a southern direction and starts to move quickly down the street.

21:15:59 – 21:16:00

The assailant disappears from view heading in a southerly direction as he goes past the surveillance camera at 342 Oakwood Avenue. He has on black shoes, black pants, a gray hoodie with a white stripe on it, is wearing a gray skullcap, and is a fairly black male of uncertain height.

21:15:52 – 21:16:05

Commencing at this time, eight seconds before the assailant disappears from view, the feet of the individual now known to be Tony Valadao can be seen heading in a southerly direction on the sidewalk as he follows fairly closely behind the attacker. Importantly, he appears to be only about 10 to 15 feet behind him as the attacker pulls up the hoodie over his head and starts heading quickly in a southerly direction. Tony Valadao identifies the attacker as having been wearing a gray hoodie. As the video continues, at the top of the screen, John Lourenco's feet can be seen for a moment, and then at 21:31:33 he disappears from view appearing to go into a building to the east, while Tony Valadao heads south on Oakwood Avenue.

21:17:00

The evidence of Constable Mokerich was that they received the dispatch call advising of the attack outside the Oakwood Café at 17 minutes after 9:00 PM on July 8, 2012. Given that a police vehicle was seen in the video not more than 5 to 6 minutes earlier on Oakwood Avenue heading north, and that the police station is on Eglinton Avenue just blocks east of Oakwood Avenue, that would explain why officers said they were on scene at about 21:18.

[95] However there is also surveillance video of the parking area behind the Oakwood Café, taken by a camera outside at the back of 355 Oakwood Avenue. It shows a couple parked cars, an open area, and the laneway that heads east towards Robina Avenue. It also shows Mr. Clarke coming outside and pacing in the parking area, making angry gestures and hammering his fist into his hand as he gesticulates back towards the back of the Oakwood Café and speaks to his friends and to the owner of the bar, at 8:45 PM, about a half hour prior to the assault. He then disappears from sight, but he reemerges into the view range of the surveillance camera at 8:59 PM. At that time, he can be seen putting on his helmet, getting on his motorcycle and driving away from the scene by heading east into the alleyway to Robina Avenue, and then north on Robina Avenue and out of sight.

Remaining Identification Issues

[96] This brings me to the final issue in this case related to identification. John Lourenco and Tony Valadao, the two principal witnesses for the Crown, both identify Kendell Clarke as the attacker. Both of them had more than ample opportunity to recognize him.

[97] The problem is that counsel for the defence claims (i) that Mr. Kendell Clarke is not in the vicinity when the attack took place, having left on his motorcycle 20 minutes before the attack commenced; and (ii) that unlike the clothing worn by Kendell Clarke at the time he is seen driving the motorcycle east towards Robina Avenue, the assailant is wearing some different clothing. He is wearing a gray hoodie, a gray skullcap, and black shoes.

[98] The defence position is that this is not the clothing that was being worn by Kendell Clarke when he is last seen in the video surveillance footage from 355 Oakwood Avenue. As such, it is claimed that he cannot have been the assailant. He is claimed to have left the area and to be wearing different clothing so it is argued that I cannot be satisfied beyond a reasonable doubt that the assailant was or could have been Kendell Clarke. I agree that the video surveillance from 355 Oakwood Avenue does show the defendant going east on his motorcycle through the laneway to Robina Avenue, the first street east of Oakwood Avenue that runs parallel to it, and then turning left in a northerly direction (it is a two way street). However, the only evidence of Mr. Clarke’s whereabouts after he disappears from public view is his own evidence. He says that he goes north to Eglinton Avenue, and west on Eglinton Avenue to Mississauga, but there is no corroboration for his evidence that he left the area of Oakwood Avenue and Rogers Road at that time. We are simply left with Kendell Clarke’s evidence that he was not there and could not have attacked John Lourenco, opposed by the evidence of John Lourenco and Tony Valadao that he was there and was the person who attacked John.

[99] In my view, however, it is just as likely that Kendell Clarke stayed in the area, went home and changed his shoes and put on the hoodie as it is that he left the area to go to Mississauga. The circumstantial evidence is equally consistent with Kendell Clarke having been in the area, having put on a gray hoodie and changed his shoes, and having attacked John Lourenco as he left the Oakwood Café that evening.

[100] I have found that it is more likely on the evidence at trial that Kendell Clarke still lived upstairs at 372a Oakwood Avenue, just across the street from the Oakwood Café on July 8, 2012. As such, given the timing of his departure from the back parking lot behind 355 Oakwood Avenue, he would have had more than adequate time to

(i) ride his motorcycle home to 372a Oakwood Avenue across the street from the Oakwood Café;

(ii) he would also have had more than adequate time to change his shoes;

(iii) to put on a gray hoodie; and

(iv) to walks the few steps back across the street.

[101] The video surveillance footage shows the feet of the assailant coming from the north. He would have had more than enough time to then hide himself in the doorway of the shop just south of the Oakwood Café to wait for John Lourenco to emerge and start to walk home.

[102] I have watched the video surveillance footage numerous times – both the surveillance footage of the back parking lot behind the Oakwood Café which shows the laneway that leads out to Robina Avenue, and the surveillance footage from the camera mounted out over the sidewalk on Oakwood Avenue looking north from the shop located at 342 Oakwood Avenue. In my review of that video surveillance, I noted that for five seconds at 9:13 PM, during the timeframe from 21:13:05 – 21:13:10, the feet of the individual who will later be shown to have been the attacker who stabbed John Lourenco, comes walking in a southerly direction on Oakwood Avenue and that person hides in the doorway to the east, out of the range of vision of the surveillance camera.

[103] Apropos of that evidence, one of the questions that I have considered as I have thought about this evidence is how the attacker could have known that when John Lourenco exited from the Oakwood Café to walk home, he would head south on Oakwood Avenue rather than north. That knowledge is implicit in the decision of the attacker, as he walks down the east side of Oakwood Avenue to hide himself in the doorway of a shop a couple of doors to the south of the Oakwood Café.

[104] Perhaps the attacker would still have been able to attack John Lourenco if he had come out the front door of the Oakwood Café and turned to walk north, but he would have been at least 10 to 15 feet behind John. He would also have to have been watching around the corner to see which way John was going to go, which would have risked him being seen by his victim. He would not have had the element of surprise that was available to him from his hiding place south of the Oakwood Café, and that is evident in the very quick manner that the assailant emerges from the doorway and commences the attack.

[105] To my mind, this evidence leads to the reasonable inference that (i) the attacker knew John Lourenco; (ii) that he knew he would be leaving the Oakwood Café soon; and (iii) that he knew John Lourenco would be walking in a southerly direction, thus permitting him to jump out from the shadows of the doorway to the south to attack him. In order to have known these things, the attacker would have to have known something about John Lourenco and his habits. Such an explanation would be consistent with the identification of Kendell Clarke as the attacker, since Mr. Clarke and the two eyewitnesses, John Lourenco and Tony Valadao, all acknowledge that they had seen each other regularly in the neighborhood for a long time. As a result, it would make sense that as another one of the regulars of the Oakwood Café, Kendell Clarke would have known that John Lourenco would most likely head in a southerly direction once he left the Oakwood Café exiting onto Oakwood Avenue.

[106] However, while that inference is a reasonable one to draw in my assessment, it is not necessary to reach a conclusion on this point. I find that the fact that Kendell Clarke is seen heading east through the laneway to Robina Avenue on his motorcycle 17 minutes before the assault does not preclude him from being the attacker. I reach that conclusion because I have found that he still lived at 372a Oakwood Avenue at the time that the assault took place, but even if that is not correct, he had numerous friends in the area that could have helped him.

[107] As such, the gap in time between 8:59 PM and the time when the assailant in the gray hoodie jumps out from the shadows to attack John Lourenco as he walked south from the Oakwood Café at about 9:16 PM was more than enough time to permit him to return to his apartment across the street, or to a nearby friends residence, to put on black shoes and a gray hoodie, to grab a knife for the purposes of the assault, and to return to the hiding spot three doorways south of the Oakwood Café. An examination of the Google map that was tendered as Exhibit 12 shows that these distances are very short and could have been covered in a very short period of time, especially if the first part was travelled by motorcycle.[^1]

[108] As such, I reject that the only inference that can be drawn from the video surveillance footage showing Kendell Clarke leaving the back parking lot and turning left to go north on Robina Avenue is that he was leaving the area entirely and heading back to his alleged home in Mississauga. For the same reasons, I reject the argument that the defendant Kendell Clarke could not have been the attacker, simply because the assailant was wearing black shoes and a gray hoodie while he was seen wearing white shoes and no hoodie at the time when he mounts his motorcycle to drive through the laneway.

[109] John Lourenco identified Kendell Clarke as the person who attacked him with a knife because that is the person he saw attacking him with a knife. He identifies him, because he is the same person with whom he had the altercation a half hour earlier in the Oakwood Café, who called him out to settle the score, who was then thrown out of the Oakwood Café, and who then came back and attacked Mr. Lourenco for racial insults. Tony Valadao identified the assailant as Kendell Clarke because he was with John having a beer, saw the altercation happen before his eyes, saw the defendant call John out to a physical settling of the score, saw him expelled from the bar, and about 20 minutes later saw John be assaulted by that same person with a knife from a distance of about 10 to 15 feet. He saw that take place in front of him outside and just south of the Oakwood Café. He said he saw that Mr. Clarke was wearing a gray hooded sweater at the time of the attack.

Intent to Kill

[110] In R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, the Supreme Court of Canada considered the mens rea necessary to establish the offence of attempted murder. The question was whether it was adequate that an accused would have an intention to cause death or to cause bodily harm knowing that death would or could be likely to follow, or whether the mens rea required extended to the intention to do some action that specifically constituted murder as defined in the Code. In this governing case, the court concluded that the mens rea required for attempted murder is a specific intent on the part of the accused to kill another person. Nothing less will do.

[111] The court observed in Ancio that a criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any crime, the Crown must prove mens rea and it must prove the actus reus of the offence, that is, a step taken towards the commission of the offence attempted going beyond mere acts of preparation. In R. v. Cline, 1956 CanLII 150 (ON CA), [1956] O.R. 539 (C.A.), at p. 27, Laidlaw J.A. observed:

Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an actus reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavors to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.

[112] While a mental state falling short of that level might lead to conviction on other offences, such as an aggravated assault, it could not lead to a conviction for an attempt at murder. The completed offence of murder involves killing, so any intention to complete that offence must necessarily include the intention to kill. That logic and statutory construction demands that an attempted murder should have no lesser intent: Ancio, above, at p. 18

[113] Kendell Clarke is charged here with attempted murder and with aggravated assault. Although he was the victim of the assault, John Lourenco himself never heard any threat from Kendell Clarke that Kendell Clarke intended to kill him. Tony Valadao claims that he heard those words, but given that John did not, I am not satisfied that there was ever any specific statement made by the accused evidencing an intention to kill John Lourenco.

[114] However, Crown counsel argues that the specific intent necessary to ground a charge of attempted murder can be found in the gravity and seriousness of the attack and in what she claims is planning and deliberation. The Crown contends that the seriousness of the wounds sustained by John Lourenco cannot be interpreted as anything other than wounds suffered at the hands of an attacker who intended to kill.

[115] I do not dispute that the wounds sustained by Mr. Lourenco are serious: 13 staples were required to close his forehead, seven to close the cut on his abdomen, and surgery to repair his left hand which was cut to the bone as it blocked the path of the assailant’s knife. Defence counsel raises no disagreement with the seriousness of the wounds sustained being sufficient to make out an aggravated assault.

[116] Certainly the actus reus of aggravated assault necessarily entails a highest level of seriousness, such as wounding, maiming, disfiguring, or endangering the life of the complainant. Plainly, an aggravated assault embraces a circumstance where the complainant is assaulted with a weapon and the risk of the victim being wounded, maimed, disfigured or having his or her life endangered, becomes a reality. Further, I accept that in this case Mr. Lourenco’s life could have been endangered had he not put up his arm to break the force of the attacker’s first knife blow. The presence of an abrasion on the side of his neck from the attacker’s knife shows that he was injured with wounds and in areas of his body, which could have been fatal.

[117] Nevertheless, that is not the test for whether Mr. Kendell Clarke can be convicted of attempted murder. In order to be convicted of attempted murder, I must be satisfied beyond a reasonable doubt that Mr. Kendell Clarke had the specific intent at the time that he attacked Mr. Lourenco to cause his death.

[118] Stated simply, I am not satisfied of that beyond a reasonable doubt. While unquestionably serious, this was a bar fight. It resulted from a verbal altercation that commenced inside the bar with insults and epithets being traded by the participants and that ended with Mr. Clarke obtaining physical retribution against Mr. Lourenco for the insults that had been directed at him when he attacked him in the street. This is not to suggest that a bar fight could not support a conviction for attempted murder, depending on the facts. But plainly, even with very serious wounds of the kind that were sustained here, the fact aggravated assault contemplates that the wounds could have endangered life, necessarily means that very serious wounds, even those that endangered life, may nevertheless result in a conviction only for aggravated assault in the absence of a finding of the presence of specific intent to kill, that is to cause the death of the complainant, in the mind of the attacker. In the absence of being satisfied beyond a reasonable doubt that Kendell Clarke had that specific intent to kill John Lourenco, it follows that he cannot be convicted of attempted murder.

Conclusion

[119] In considering the entirety of the evidence relative to the question of identification, I found, first, that I did not believe the evidence of the accused, Kendell Clarke. I did not believe his evidence, or his claim that he could not have been and was not the attacker, nor am I left in a state of reasonable doubt by that evidence. His willingness to lie, either to me under oath, or to have admitted his willingness to lie about where he lived shortly before the assault, fatally undermines his credibility. Moreover, his evidence did not make sense. His claim that he would never have gotten angry enough to perpetrate such an attack was undermined by the evidence to the contrary, including the video surveillance evidence.

[120] I have found on the whole of the evidence that the Crown has proven the identity of the attacker, having regard in particular to the recognition based identification evidence provided by the two key Crown witnesses, the victim, John Lourenco, and his friend, Tony Valadao. Both of them were well acquainted with the accused from the Oakwood Café. Their identification is corroborated by other evidence, principally, the video surveillance footage from 344 and 355 Oakwood Avenue. Considering the strength of their identification in the context of the whole of the evidence, I am satisfied beyond a reasonable doubt that the assailant who attacked John Lourenco on the evening of July 8, 2012, close to the Oakwood Café on Oakwood Avenue in Toronto was this accused, Kendell Clarke.

[121] However, for the reasons given, I am not satisfied beyond a reasonable doubt that the accused had the specific intent to kill John Lourenco that is required to found a charge of attempted murder. He will be acquitted on the charge of attempted murder, but convicted on the charge of aggravated assault.

Michael G. Quigley J.

Released: February 19, 2014

COURT FILE NO.: CR-13-40000354-0000

DATE: 20140219

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

KENDELL CLARKE

Defendant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: February 19, 2014

[^1]: The Google map of the area that was tendered as Exhibit 12 did not include actual distances. However, an examination of that exact same map in electronic form on Google Maps suggests that the entire distance was well less than 1 km, and suggests that it would take about 3-4 minutes to drive that route and about 11 minutes to walk it.

R. v. Clarke, 2014 ONSC 1062

Case Summary

Introduction

Overview of the Facts

Analysis

Evidence of Kendell Clarke

Evidence of John Lourenco

Evidence of Tony Valadao

The video-surveillance evidence

Remaining Identification Issues

Intent to Kill

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2