Introduction

[1] Mr. Cummings is charged in a multi-count indictment with a number of offences related to an allegation that he stabbed a passenger on a TTC subway train in the neck with a knife on February 27, 2013. Specifically, Mr. Cummings is charged with the following offences related to this incident:

Count 1 – attempted murder, contrary to s. 239

Count 4 – carrying a concealed weapon, contrary to s. 90(1)

Count 5 – aggravated assault, contrary to s. 268

Count 6 – assault with a weapon, contrary to s. 267

Count 7 – possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88

[2] Mr. Cummings was also charged with two counts of breach of probation (counts 2 and 3) and one count of criminal harassment (count 8). The Crown called no evidence on counts 2 and 3, and they are therefore dismissed. Mr. Cummings was not arraigned on count 8.

[3] There are two issues in this case. The first is whether the person who stabbed Corey Baker in the neck is Cassim Cummings. If I determine that Mr. Cummings is that person, the second issue is whether the Crown has proven beyond a reasonable doubt that Mr. Cummings attempted to murder Mr. Baker.

The Stabbing

[4] On February 27, 2013, at approximately 10:20 p.m., Corey Baker was sitting on a subway car when he was approached by a black man. When Mr. Baker stood up in front of the man, the man swung his right hand at Mr. Baker's neck. The man's right hand was covered with a white plastic bag that concealed a knife. Mr. Baker's neck was cut by the knife. The subway car stopped at the Davisville subway station. The assailant got off, and Mr. Baker was taken to the hospital by ambulance.

[5] Mr. Baker's injuries were not life-threatening. He had a 5 centimetre-long scratch ending in a 1 centimetre-long laceration, which was closed with a single staple.

[6] The assault was captured by the TTC's video recording equipment. A DVD copy of the recording was filed as an exhibit at the trial.

[7] Christopher Biri was on the subway car that night and witnessed the assault. He testified that it occurred between the Eglinton and Davisville subway stations. He was sitting on the subway with headphones on, listening to music, when he heard and saw a very loud, aggressive and hostile man walking down the subway car. The man was approaching people who were seated, and yelling at them. He heard the man repeatedly say in a loud voice, “what are you looking at” to two people who were seated in front of him.

[8] Mr. Biri saw the man continue down the subway car and approach the victim, who was seated. The man stopped right in front of the victim and said, “what is your problem.” The victim stood up. The man raised his right arm to the level of his shoulder and appeared to punch the victim. The victim held his neck. A lot of blood spattered in the subway car. Mr. Biri testified that at that point he could see a rather large knife in the man’s hand. The victim headed south through the subway cars, and the assailant headed north.

[9] Mr. Cummings was arrested two days later on March 1, 2013.

Earlier That Day

[10] Mr. Cummings was investigated by Officers Singh and Uppal near the St. Clair West subway station at approximately 4:00 p.m. on February 27 – a little more than six hours prior to the stabbing. The investigation was initiated by a complaint from Christian Riveros, who was walking west with his daughter on the sidewalk on the north side of St. Clair Avenue West, when he was knocked off balance by a man. Mr. Riveros testified that he felt as if he had been intentionally body-slammed by the man. When Mr. Riveros turned around to tell the man to "watch it," the man looked at him aggressively, as if he wanted to start a fight.

[11] Mr. Riveros approached two police cars, which were parked next to the north curb of St. Clair Avenue West, to report what had happened to him. Officer Uppal was in the first police car Mr. Riveros approached. Officer Uppal did not take any action in response to Mr. Riveros' complaint, so Mr. Riveros approached the second police car, and told Officer Singh what had happened.

[12] Ultimately, Officers Singh and Uppal spoke with the man, who Mr. Riveros had said assaulted him. He identified himself as Cassim Cummings. Officer Singh patted Mr. Cummings down for weapons. He found nothing. Both officers testified that Mr. Cummings was co-operative, but was agitated. He appeared to them to be suffering from some mental disorder. Officer Singh testified that Mr. Cummings seemed excited. His answers were quick and he would go off on tangents. Officer Uppal testified that Mr. Cummings was speaking very fast and kept repeating that he loved the police.

[13] Officer Singh testified that he was at the scene for between 20 and 30 minutes. He spent most of that time dealing with Mr. Cummings. He testified that he spent about 10 minutes dealing with Mr. Riveros. Officer Uppal testified that he was at the scene for between 20 and 25 minutes.

[14] Officer Uppal remained seated in the driver’s seat of his scout car and spoke to Mr. Cummings through the passenger side window. He confirmed Mr. Cummings' identification through checks on the computer in his car. Officer Singh was on the sidewalk standing behind Mr. Cummings.

[15] Mr. Cummings was not charged with anything after his conversation with the officers. He walked west along St. Clair Avenue away from the officers.

Identification of Mr. Cummings as the Assailant

[16] The next morning, February 28, 2013, Mr. Riveros saw a news report on a local television station, about a stabbing that had occurred in the subway the night before. The report included a photograph of the suspect wanted for the stabbing. Mr. Riveros thought that the photograph looked like the man who had assaulted him the previous day. The clothing of the suspect looked familiar to him and although he could not make out the face 100%, he thought it looked like the man who had assaulted him the day before. He called the police to report that he thought he recognized the suspect as the man who had assaulted him the day before. He told the police that the man had been investigated by two police officers.

[17] On February 28, Officers Uppal and Singh were asked to attend 53 Division to view photographs and a video of the suspect in the subway stabbing that had occurred the evening before. Both officers were told that they may have investigated the suspect the day before.

[18] Officer Uppal testified that he was driving alone in his police car when Officer White from 53 Division called him and asked him to look at a police bulletin that had been released with a picture of the stabbing suspect. Officer Uppal looked at the bulletin on the computer in his car. He testified that he was able to identify the suspect right away as the man he and Officer Singh had spoken to the day before. He testified that he recognized Mr. Cummings’ face and clothing. The suspect was wearing the same clothing Mr. Cummings had been wearing when he investigated him.

[19] Officer Singh testified that he and Officer Uppal viewed the police bulletin and the video together at 53 Division. Officer Singh testified that he knew immediately from the description of the assailant’s clothing contained in the bulletin, as well as from watching the video, that the assailant was the man he had investigated the day before.

[20] Both officers identified Mr. Cummings in the prisoner’s box as the man they investigated near the St. Clair subway station on February 27, 2013.

The Arrest of Mr. Cummings

[21] Officer Peart testified that on March 1, 2013, he and Officer So arrested Mr. Cummings in an apartment building at 250 Davenport Road. They located Mr. Cummings in the stairwell on the 21st floor. He was talking on a white cell phone. He told the officers that he was staying with a friend in Unit #617. The officers searched Mr. Cummings, and found no weapon.

[22] Ann Martel lives at 250 Davenport Road in Unit #617. She testified that she befriended a black man she called “J” sometime around the end of February 2013. Ms. Martel was unable to pinpoint when she met this man, but she knew that a few days later, five police officers came to her apartment and searched it. She went to the police station and gave a videotaped statement that day.

[23] Ms. Martel remembered very little about J. She remembered that he was a good-looking young black man, with a good body. J had been to her apartment a few times, and then disappeared out of her life. They had sex once or twice. On two occasions, he gave her $10. He also gave her crack cocaine. She lent him her white Public Mobile cell phone more than once. The last time she lent it to him, he did not return, and she did not see her phone again until she was at the police station giving her videotaped statement.

[24] Ms. Martel also testified that she remembered J telling her to say to anyone who asks that he was with her on Wednesday. She was a little startled by this because he was not with her on Wednesday, and she did not understand why he asked her to say that.

[25] Ms. Martel was unable to identify anyone in the courtroom as J.

Issues

Has the Crown Proved that the Assailant was Mr. Cummings?

[26] Mr. Bottomley does not dispute that Mr. Cummings was the man Officers Uppal and Singh investigated near the St. Clair subway station on February 27, 2013 at 4:00 p.m. He submits that there is no reliable evidence identifying Mr. Cummings as the man who stabbed Mr. Baker six hours later.

[27] Mr. Brandes asks the court to compare the image of the assailant in the TTC videotape and the still photographs extracted from it with Mr. Cummings as he has appeared in the courtroom and as he appeared in photographs taken of him upon his arrest, which are marked as Exhibits 6A, B, and C. He relies on the decision of the Supreme Court of Canada in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, in which the court held that a trial judge can use videotape evidence to determine whether the accused is the perpetrator of the crime, but must be cautious in doing so. The weight to be given the videotape evidence will depend on the degree of clarity and quality of the recording, and to a lesser extent, the length of time the accused appears on the videotape.

[28] I have reviewed the videotape and the still photographs numerous times while preparing these reasons. I also had the opportunity to observe Mr. Cummings throughout the trial. I have borne in mind Mr. Bottomley’s submission about the reliability of cross-racial identification, and the cautions set out in Nikolovski.

[29] The quality and clarity of the videotape is very good. It is in colour and clearly depicts the assailant walking down a subway car, confronting seated passengers in an aggressive manner, saying something to them. He ultimately approached Mr. Baker. The assailant's face is displayed from a number of different angles, including from the front. He appears on camera 3 for 71 seconds, and on camera 4 for 8 seconds. Although the assailant appears for only 8 seconds on camera 4, his face appears in 76 frames within those 8 seconds.

[30] I am unable to positively identify Mr. Cummings as the assailant from the videotape or photographs because the toque worn by the assailant covers his hair and forehead. I do find however a striking resemblance between the assailant and the photographs of Mr. Cummings taken when he was arrested on March 1 and his appearance in court throughout this trial. The facial hair is the same. The shape of the face is the same, with a pronounced, long chin. The shape of the nose is the same. The shape of the upper lip, coming to a “V” in the centre is the same. The shape of the eyes is the same. The skin colour is the same. The body type and build is similar. There are no dissimilar features that would exclude Mr. Cummings as the assailant.

[31] Because I am not satisfied that a positive identification of Mr. Cummings can be made from the videotape and photographs, I have considered what other evidence there is to support the Crown’s submission that Mr. Cummings is the assailant depicted in the videotape.

[32] The videotape depicts the assailant wearing a black toque, black jeans, and a black hooded sweatshirt with four "Aces" across the front of it. This clothing matches the description of the clothing Mr. Cummings was wearing earlier that day when he was investigated by Officers Uppal and Singh.

[33] Officer Uppal completed a contact card when he investigated Mr. Cummings on St. Clair Avenue at 4:00 p.m. that day. To complete the card, Officer Uppal was required to describe Mr. Cummings. The card, which is Exhibit 1, describes Mr. Cummings as a black male, born on November 9, 1992, with brown eyes, black hair, goatee, 5'9", 170 pounds, tattoo of MOB on his right hand, wearing a hoodie with "Aces" on the front, black pants, and a black toque.

[34] Christopher Biri described the assailant as a black male, between 28 and 35 years of age, about 6'2", 160 pounds, wearing a black coat, black pants and a hat. Although he identified Mr. Cummings in the courtroom as the assailant, he had only seen the assailant once, for a very brief period of time between 30 seconds and one minute, two years ago, under very stressful circumstances. These are the precise conditions that have been recognized as contributing to the frailties of eyewitness identification evidence. In addition, Mr. Biri identified Mr. Cummings when he was the only person sitting in the prisoner's box, and the only black person in the courtroom. For these reasons, I am unable to place any weight on Mr. Biri's physical description of the assailant and his in-dock identification of Mr. Cummings.

[35] Mr. Riveros testified that the photograph of the assailant he saw the morning following his encounter with Mr. Cummings looked familiar to him. He said that the face of the assailant and his clothing looked familiar. He remembered Mr. Cummings having a long face with a unique chin. He also recognized the shirt the assailant was wearing in the photograph as the same one Mr. Cummings had been wearing. He remembered it as a dark fleece-type jacket with white dots on it. He also recalled that Mr. Cummings was wearing his black or dark blue jeans with the crotch down low. The assailant depicted in the video is wearing black jeans with the crotch hanging down low.

[36] The Crown also relies on the recognition of Mr. Cummings as the assailant by Officers Uppal and Singh. Mr. Brandes submits that their identification of Mr. Cummings as the assailant amounts to recognition evidence, which is more reliable than identification evidence. In addition, Mr. Brandes submits that the fact that police officers are trained to observe and describe people makes their identification evidence more reliable.

[37] I accept that there can be a difference between recognition and identification evidence. A witness’s previous familiarity with a person can enhance the reliability of the witness’s identification. Notwithstanding that, recognition evidence is simply one type of identification evidence, and is subject to the same frailties as identification evidence, requiring triers of fact to exercise caution when relying on it: R. v. Olliffe, 2015 ONCA 242. In addition, I do not accept that a 15-minute conversation with Mr. Cummings on the sidewalk alone rises to the level of familiarity necessary to enhance the reliability of their identification. Nor do I accept that police officers are immune to the same influences that make the identification evidence of lay witnesses unreliable.

[38] In this case, Officers Uppal and Singh were shown a single photograph of the suspect in the subway stabbing and the videotape of the stabbing. Officer Singh testified that he was asked to confirm that the suspect in the video was the man they had spoken to the day before. Officer Uppal testified that he was told that the suspect could be the person they had investigated the day before. Both officers agreed that a photographic line-up would never be administered to a civilian witness in this way.

[39] Officer Singh testified that he did not make a note of Mr. Cummings’ description at the time he investigated him on February 27, 2013. The first time he made a note of Mr. Cummings’ description was the next day after he went to 53 Division and saw the photograph of the suspect in the subway stabbing. This fact, together with the suggestion made to Officer Singh that he had investigated the man the day before, makes his identification of Mr. Cummings unreliable and I attach no weight to it.

[40] Officer Uppal, on the other hand, made a specific note of Mr. Cummings’ description on the contact card he completed while investigating him. This would have required him to focus on the details of the description. Although his identification of Mr. Cummings as the assailant is also tainted by the suggestion made to him that it may be the man he had investigated the day before, I am prepared to give some weight to his evidence because his attention had been focused specifically on Mr. Cummings’ description.

[41] Finally, Mr. Brandes relies on the evidence of Ms. Martel. He acknowledges the difficulty with Ms. Martel’s evidence. She is addicted to crack cocaine, and has very little memory of the events that occurred in her life around the end of February 2013. During the trial, she watched the video of a statement she gave the police on March 1, 2013 to refresh her memory.

[42] Ms. Martel gave evidence in this trial on April 10, 2015. She arrived late to court that day. She explained to the court that she was late because she had smoked crack all night until 4:00 a.m. and then at 5:00 a.m., she took some anti-anxiety medication to help her sleep. She was roused from her sleep when a police officer knocked on her door. She was emotionally fragile throughout her evidence, breaking down in tears and asking for breaks to have a cigarette.

[43] The evidence of Ms. Martel that Mr. Brandes sought to rely on is that she lived in apartment #617 at 250 Davenport Road in February and March 2013; that a few days before March 1, when the police searched her apartment, she had befriended a good-looking young black man she called J; she had lent J her white Public Mobile telephone, which she did not see again until she was at the police station on March 1 giving her statement; and that she was startled when J asked her to tell anyone who asked her that he was with her on Wednesday, when he was not.

[44] Mr. Brandes submitted that the court could find on the basis of Ms. Martel’s evidence that Mr. Cummings was J, that he had her cell phone when he was arrested in the stairwell of the building where she lived, and that he had asked her to tell anyone who asked that he was with her on Wednesday.

[45] Mr. Bottomley submitted that Ms. Martel’s evidence was entirely unreliable.

[46] I have approached Ms. Martel’s evidence with caution. Clearly, her drug addiction and chaotic life give rise to concerns about the reliability of her evidence. I am not, however, prepared to disregard it entirely. Some of it was confirmed by other evidence. When Mr. Cummings was arrested, he told the police officer that he was staying with a friend in unit #617, which is Ms. Martel’s apartment. He was talking on a white cellular telephone at the time of his arrest. It was seized from him and photographed. Exhibit #6D is a photograph of the white Public Mobile cellular telephone that was seized from Mr. Cummings. I am satisfied on the basis of Ms. Martel’s evidence that J was Mr. Cummings.

[47] I am also satisfied that Mr. Cummings asked Ms. Martel to tell people that he was with her on Wednesday, when he was not. Ms. Martel was very clear with the court when she did not remember something. She did not hesitate to tell the court when she had no present memory of something that she had told the police on March 1, 2013. Nor did she hesitate to tell the court when her memory had not been refreshed by watching her videotaped statement. She testified that she remembered J asking her to say that he was with her on Wednesday, and feeling startled because it was untrue. I accept this evidence.

Conclusion on the Identity of the Assailant

[48] The evidence the Crown relies upon to prove that Mr. Cummings is the man who stabbed Mr. Baker is entirely circumstantial. In a criminal trial, the Crown bears the burden of proving all of the essential elements of the offence, including identification, beyond a reasonable doubt. To satisfy the burden on the Crown in this circumstantial case, the inference that Mr. Cummings is the assailant must be the only reasonable inference to be drawn from the evidence: R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.

[49] I have considered the following circumstantial evidence:

❏ the striking resemblance between the assailant depicted in the videotape and Mr. Cummings;

❏ the description of the clothing Mr. Cummings was wearing at 4:00 p.m. on February 27 as recorded by Officer Uppal on the contact card matches the clothing the assailant is wearing at 10:00 p.m., including the black hooded sweatshirt with the design of "Aces" across the front;

❏ Officer Uppal’s identification of Mr. Cummings as the assailant the day after he had completed a contact card with Mr. Cummings’ description;

❏ Mr. Cummings' aggressive and assaultive behaviour towards Mr. Riveros, a stranger walking on the street is similar to the aggressive, confrontational behaviour of the assailant depicted on the videotape and described by Mr. Biri; and

❏ Ms. Martel's evidence that J, who I find is Mr. Cummings, asked her to lie for him and tell anyone who asked her that he had been with her on Wednesday. February 27, 2013, the day of the stabbing, was a Wednesday.

[50] I have also considered that there is no evidence that excludes Mr. Cummings as the assailant. Mr. Bottomley pointed out that Mr. Riveros described the sweatshirt Mr. Cummings was wearing when he encountered him as having white dots across the front of it. This however, is not significant since it is conceded that the man Officers Uppal and Singh investigated that afternoon was Mr. Cummings. Officer Uppal described Mr. Cummings’ sweatshirt on the contact card as having “Aces” across it. I find that Mr. Riveros was simply mistaken.

[51] I am aware of how cautious trial judges must be when considering eyewitness identification evidence. The Ontario Court of Appeal in the decision of R. v. Gough 2013 ONCA 137 described eyewitness identification evidence as “notoriously unreliable” and called for triers of fact to exercise considerable caution.

[52] I have also borne in mind that there is a very weak link between the level of confidence a witness has in his identification and the accuracy of that identification: R. v. Hibbert (2002), 2002 SCC 39, 163 CCC (3d) 129. Eyewitness identification evidence is fraught with danger, in part, precisely because of the confidence of the honest identification witness in his evidence.

[53] Individually, none of these pieces of evidence in themselves would support a finding that Mr. Cummings was the assailant. However, when taken together, I find that they establish the identity of Mr. Cummings as the person who stabbed Mr. Baker beyond a reasonable doubt.

Has the Crown Proven that Mr. Cummings Attempted to Murder Mr. Baker?

[54] Before finding Mr. Cummings guilty of attempted murder, I must be satisfied beyond a reasonable doubt that Mr. Cummings had a specific intent to kill someone: R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225.

[55] There is no direct evidence of Mr. Cummings' intention. Mr. Brandes submitted that I can infer that Mr. Cummings had the specific intent to kill someone that day on the subway based on the totality of his actions. He is seen in the video walking in the subway car, confronting passengers. A white plastic bag covers his hand, which is holding a large knife. Mr. Cummings walks through the subway car, aggressively accosting people. He approached Mr. Baker and asked him what his problem was. When Mr. Baker stood up, Mr. Cummings did not hesitate, but slashed him across the neck, a very vulnerable part of the body. When considered as a whole, this evidence, according to Mr. Brandes, supports an inference of an intention to kill.

[56] Mr. Bottomley submitted that it is clear that the assailant was acting erratically that evening, without a plan. The assailant did not say anything to Mr. Baker when he stabbed him, or afterwards. Mr. Bottomley pointed out the evidence of Mr. Biri that the assailant looked surprised after the stabbing. This look of surprise is evident on the videotape.

[57] Even accepting the facts as Mr. Brandes has recounted them, they do not satisfy me beyond a reasonable doubt that Mr. Cummings intended to kill someone that evening. I therefore find Mr. Cummings not guilty of count #1.

[58] Mr. Bottomley also submitted that the evidence falls short of establishing that Mr. Cummings committed an aggravated assault. To prove aggravated assault, the Crown must prove beyond a reasonable doubt that the force Mr. Cummings applied to Mr. Baker wounded him. To wound someone means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. The wound must be more than something trifling, fleeting or minor, such as a scratch.

[59] It was an agreed fact in this trial that Mr. Baker suffered a 5 centimetre-long scratch to his neck that ended in a 1-centimetre-long laceration. It was also agreed that the laceration was closed with a single staple. In my view, that is evidence that Mr. Baker's skin was cut, and that the cut was something more than minor in that it required a staple to close.

[60] I am satisfied beyond a reasonable doubt on the evidence that Mr. Cummings committed an aggravated assault on Mr. Baker, that he assaulted Mr. Baker with a weapon, that he carried a concealed weapon, and that he possessed a weapon for a purpose dangerous to the public peace.

[61] I therefore find Mr. Cummings guilty of counts 4, 5, 6, and 7.

Corrick J.

Released: April 14, 2015

CITATION: R. v. Cummings, 2015 ONSC 2416

COURT FILE NO.: 13-70000794-0000

DATE: 20150414

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

CASSIM CUMMINGS

REASONS FOR JUDGMENT

Corrick J.

Released: April 14, 2015

R. v. Cummings, 2015 ONSC 2416

Case Summary

Introduction

The Stabbing

Earlier That Day

Identification of Mr. Cummings as the Assailant

The Arrest of Mr. Cummings

Issues

Has the Crown Proved that the Assailant was Mr. Cummings?

Conclusion on the Identity of the Assailant

Has the Crown Proven that Mr. Cummings Attempted to Murder Mr. Baker?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3