Court File and Parties

COURT FILE NO.: CR-14-700000426-0000 DATE: 20160722 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. John Michael

BEFORE: E.M. Morgan J.

COUNSEL: Jessica Smith Joy, for the Crown Dean F. Embry, for the Defendant

HEARD: January 5-8 and September 8, 2015; April 7, June 30 and July 15, 2016

Reasons for Judgment

[1] The accused, John Michael, is charged with assault, threatening, and use of an imitation firearm while threatening. The charges arise from an incident that occurred on November 17, 2012 on a westbound Queen Street streetcar – or, more accurately, on two successive streetcars. Although there were cumulatively only about 6 days of trial, the trial extended in fits and starts over a relatively protracted period of time.

[2] To keep a short story short, Catherine Brio was waiting for the streetcar at the Queen Street East and Neville Park loop sometime after 6:00 p.m. on November 17th. Mr. Michael approached her at the stop and said that he had a broken cell phone and was trying to contact his family. He kept trying to continue the conversation and she tried to separate from him. Ms. Brio testified that she did not know what he wanted from her, and that she told him, “leave me alone”. She said that he was in her “personal space”, within arm’s length.

[3] Ms. Brio indicated that she waited around 5 minutes at the platform before boarding the streetcar. When the streetcar finally came she felt relieved as there were other people on the streetcar and she had been alone with Mr. Michael at the bus stop.

[4] Mr. Michael was pulling a grey suitcase on wheels and boarded the streetcar behind Ms. Brio. She went to the back of the car and he deposited the suitcase in the middle of the car and came back to sit near her. He began talking to her, and she told him to leave her alone but he ignored her and kept on talking. Ms. Brio said that there was another passenger sitting in front of her, and Mr. Michael was sitting across from her and one seat over.

[5] After a few minutes of this, Ms. Brio said that she did not feel safe and so went up to the driver to make him aware of the situation. The driver said that if Mr. Michael approached her once more he would kick him off the streetcar.

[6] When Ms. Brio turned around, she saw Mr. Michael coming toward her. As he passed her, he hit her with his elbow in her upper arm or shoulder. It was hard enough to knock her out of place, although she suffered no lasting injury. Ms. Brio related that she said to him, “Was that really necessary?”, but he never answered. This was Mr. Michael’s only physical contact with her. Under cross-examination, Ms. Brio never wavered from her firm observation that the hit with the elbow was not an accident.

[7] At that point, people around her asked if she’s okay. She said she’s fine. She saw Mr. Michael approached her again, and two other male passengers intervened and tried to deter him. She said again, “leave me alone”, and walked as fast as she could up to the driver. Two male passengers asked if she was okay, and she went back to her seat and started looking at her cell phone. Ms. Brio remained that way for a time, and did not notice when Mr. Michael got off the streetcar.

[5] Ms. Brio never saw Mr. Michael again. One of the gentlemen on the car told her he had called the police. Then Ms. Brio herself got off at Kingston Road and Queen Street. The police came almost immediately.

[6] The man who called the police was Andrew Marchand, a fellow passenger on the Queen Street streetcar at about 6:00 p.m. on November 17, 2012. Mr. Marchand testified that he noticed a woman with tears on her face. He had never met the woman before, although we now know that it was Ms. Brio. Mr. Marchand heard her say out loud, “That’s the guy who won’t leave me alone”. He saw the man she was referring to, who we now know is Mr. Michael, walking toward the back from the front of the streetcar.

[7] The woman was sitting in the back of the streetcar. As Mr. Marchand described it, she sounded “scared and nervous, like she was trying to get help from somebody.” He said that he tried to get himself between the two of them, and spoke straight to Mr. Michaels, saying, “Listen, buddy, she obviously doesn’t want to talk to you.” Mr. Michael stopped, and the women ran toward the front of the streetcar.

[8] At that point, Mr. Michael spoke to Mr. Marchand for the first time. Mr. Marchand recalled that Mr. Michael told him, “Shut up, you don’t know who I am.” He then spat at Mr. Marchand from about a metre and a half away. At this point, Mr. Michael was at the middle exit door of the streetcar, and Mr. Marchand was in his seat. He had moved to the aisle seat from the window. The spit landed on the window at Marchand’s seat. A moment later, Mr. Michael turned around and said, “Don’t make me shoot you.”

[9] Mr. Marchand saw Mr. Michael pull up his shirt, and expose a gun in the waist band of his pants. Mr. Marchand testified that the gun was rather up close and personal: “I pretty much saw the whole handle and the top of the barrel. The rest of the barrel was tucked into his pants. It was more like he was flashing it to me.” Mr. Michael never pulled the gun out of his pants.

[10] This exchange was captured by the TTC security camera that was running in the streetcar. The video was played at trial. Mr. Marchand can be seen on the security video sitting in the middle of the back portion of the bus at a window seat on the sidewalk side of the streetcar. He can be seen talking with Mr. Michael, who at one point lifts up his shirt to expose his waist in just the way that Mr. Marchand described.

[11] In Mr. Marchand’s description, the firearm was black. “It looked like a real gun,” Mr. Marchand said. He related that he was “shaken up”, and didn’t say anything after seeing the gun. “I pretty much kept my mouth shut.”

[12] Mr. Marchand then saw Mr. Michael get off the streetcare at Lee Avenue. Mr. Marchand said that he lives nearby and knows the streets there. He saw Mr. Michael dragging behind him a blue-grey luggage bag with wheels.

[13] After Mr. Michael’s exit from the streetcar, Mr. Marchand then went and talked to the driver and told him that some guy flashed a gun in the back of the streetcar. Mr. Marchand called 911 and then got off the streetcar about 4 or 5 minutes after talking to the driver.

[14] Although no one testified who actually saw where Mr. Michael went after exiting the streetcar, it is apparent that he must have boarded another streetcar headed in the same direction. George Assimakopolous got on a westbound Queen Street streetcar at approximately 6:45 p.m. on November 17, 2012. He testified that he noticed a man, who we now know is Mr. Michael, screaming at two girls very loudly at the back of the car. Mr. Assimakopolous was seated directly in front of the back doors of the streetcar. He did not know where or when Mr. Michael got on, but did recall that Mr. Michael was yelling loud enough for everyone in the streetcar to hear. Mr. Michael told the girls to be quiet and called them “bitches”.

[15] Things then went quiet, and Mr. Michael got up and started talking to Mr. Assimakopolous and his friend, David Byrne. Mr. Assimakopolous described him as saying some “indecipherable gibberish”, and as having a small bottle of rum in his hand that he was waiving around. Mr. Assimakopolous testified, “he was kind of in our face, so I was half expecting him to swing it.”

[16] Mr. Michael apparently continued to rant by saying that everyone is an idiot. Mr. Assimakopolous heard him say, “That’s why I carry this”. He then turned around and showed a gun in the small of his back with the barrel down his pants and the handle sticking out. Mr. Assimakopolous described it as a black-handled handgun. He testified that it looked like it had some weight to it, although he conceded that he has little experience with guns.

[17] After flashing the gun, Mr. Michael walked further to the back of the streetcar. The streetcar then stopped, and Mr. Assimakopolous noticed police waiting. At that point, Mr. Assimakopolous got off as well.

[18] He saw Mr. Michael walk down the alley, then saw his friend Mr. Byrne, who said “let’s go.” Mr. Assimakopolous then went and spoke with the police to tell them where the man with the gun went. He said that he saw Mr. Michael down the alley about 25 feet away. He was in view for only a short time.

[19] David Byrne had been riding on the streetcar with George Assimakopolous. He also testified and generally corroborated what Mr. Assimakopolous related about the encounter with Mr. Michael. He indicated that he saw Mr. Michael on the streetcar swearing at a group of women to the left and in front of him. He had a distinct memory that Mr. Michael was initially sitting, and that after a few minutes he stood and started moving up and down the aisle. He was not sure where Mr. Michael got on the streetcar, but indicated that he eventually got off at Kingston Road and Queen Street.

[20] Mr. Byrne indicated that he told Mr. Michael something to the effect of, “Take it easy”. Mr. Michael looked at him and replied, “This is why I’m not afraid of you”. He then pulled up his shirt and exposed a gun. Mr. Byrne said that he was in the aisle seat and the gun, tucked into Mr. Michael’s waistband, was right in his face. He described it as black, and that it looked like it was made out of “constructed material” – that is, not plastic like a toy. Mr. Byrne said he could clearly see the grip, the trigger guard, and the hammer. Mr. Michael never pulled the gun out.

[21] Mr. Byrne testified that he has never been exposed to a firearm, but was convinced that it was real. He was terrified. He went to the front to notify the driver that there was a man with a gun. The streetcar ultimately stopped at Kingston Road where Mr. Byrne saw that there were 2 or 3 streetcars in line. He distinctly recalls the driver then walking off the streetcar and closing the door behind him, which Mr. Byrne found very upsetting.

[22] Mr. Michael was ultimately arrested by Sgt. Jared Babineau. On Nov. 17, 2012, Sgt. Babineau was a “road sergeant” at 55 Division, and was responsible for ensuring that calls are attended to by officers on the road and to assist them if needed. On November 17th he got involved as a result of a radio call at 18:47. It was in relation to a person with a gun at Queen and Lee. He was in uniform and in a squad car when he arrived.

[23] When Sgt. Babineau arrived, there were officers already on the scene speaking with some witnesses. While at the scene a witness approached him – George Assimakopolous – who told him that, “the guy with the gun went over there up the alley”. He then went and checked the area in his car. At the end of the TTC loop at Queen and Kingston he followed Mr. Michael through some side streets and a laneway. Sgt. Babineau testified that he could see Mr. Michael across a laneway in a parking lot with his suitcase with the handle extended. He conducted a “high risk takedown” in the laneway, since the information they had was that the suspect had a firearm.

[24] Sgt. Babineau asked Mr. Michael not to move and to lie down on the ground, and had his service firearm out and pointing at him. Sgt. Babineau related that Mr. Michael was compliant with his demand. He was then handcuffed and searched. Sgt. Babineau found a box cutter and a small bottle of rum. He told Mr. Michael, “You’re under arrest for possession of a firearm.” Mr. Michael responded, “What gun?”

[25] No firearm was ever found either on Mr. Michael or in the area. Another officer involved in the search, P.C. Benjamin Elliot, testified that he located a small baggie of airsoft ammunition, which are used in pellet guns or air-powered guns and fire small plastic pellets. Yet another officer, P.C. Curtis Hibbert, testified that he searched the suitcase that Mr. Michael had with him, and that all he found there was some clothing.

[26] Mr. Michael testified at trial that he was in the process of moving his belongings from a storage locker to some other place, which is why he had a suitcase with him. He also indicated that he remembered speaking with Ms. Brio but denied ever intentionally hitting her. He did indicate that he had had a few beers that evening before getting onto the streetcar.

[27] He also recalled Mr. Marchand’s intervention, but denied ever threatening him or showing him a gun. In fact, Mr. Michael testified that he had no gun, and that when the TTC video footage shows him turning and lifting his shirt he was actually showing Mr. Marchand the cell phone holder on his belt. Mr. Michael did not say that he had any physical interaction with Mr. Marchand, but that he “noticed some kind of hate or something. Or he was trying to get involved in things… trying to get involved in things he really wasn’t involved in.”

[28] Defense counsel submits that the firearm has never been found, and that the inference from the evidence is that Mr. Michael had an air powered pistol. He also contends that there is at least a chance that Mr. Michael bumped into Ms. Brio unintentionally rather than with any assaultive intent.

[29] Finally, defense counsel makes the argument that if Mr. Michael threatened Mr. Marchand, it was done in self-defense. He points out that the video footage shows a confrontation, and that it is conceivable that Mr. Michael felt that Mr. Marchand was about to physically intervene or attack him. Any threat or display of a weapon, in this scenario, would have been Mr. Michael’s minimal way of warding off trouble before it escalated to something more serious.

[30] Since Mr. Michael has testified in his own defense, the Supreme Court of Canada’s judgment in R v W(D), [1991] 1 SCR 742 applies to the analysis of the evidence. Accordingly, I will proceed in accordance with the instructions that Justice Cory, at para 11, states that a jury would properly have received in a case where credibility is important:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[31] I am cognizant of the fact that the evidence must be considered in its totality, and that “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. Accordingly, I must acquit Mr. Michael of any of the charges he faces if, with respect to that charge, I am unable to come to a determination “as to exactly where the truth of the matter lay”, R v Nimchuk (1977), 33 CCC (2d) 209, at para 7 (Ont CA), or if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 45 CCC (2d) 546, at para 45 (Ont CA).

[32] I do not believe the testimony of Mr. Michael. Four civilian witnesses, two on each streetcar, recount mutually corroborating versions of the encounters with him. None of those witnesses know Mr. Michael or have any reason to relate anything but the objective facts. The security video on the first streetcar equally corroborates the essential facts as narrated by Mr. Brio and Mr. Marchand, and shows Mr. Michael engaging with each of them.

[33] Moreover, there is no air of reality to Mr. Michael’s version of the events. Having had a face-to-face encounter with Ms. Brio, which prompted her to go to the front of the streetcar out of fear and alert the driver, it is improbable to the point of cynical to say that his hard elbow bump into her on her way back to her seat was accidental. He may have had a few beers, but he hit no one on the vehicle other than the one woman he had been harassing since the two of them got on at an earlier stop. Ms. Brio was obviously upset about the incident, and it was apparent from her testimony that she was telling the truth about Mr. Michael intentionally aiming to hit her.

[34] As for the encounter with Mr. Marchand, it is entirely specious for Mr. Michael to suggest that he was having an innocent conversation with him about his cell phone. The security video shows a direct confrontation between them, complete with Mr. Michael spitting at Mr. Marchand. The idea that Mr. Marchand then turned and lifted his shirt in order to show Mr. Marchand his cell phone holster is so incredible that it is hard to take it seriously.

[35] Likewise, defense counsel’s suggestion that Mr. Michael was acting in self-defense, or perhaps anticipatory self-defense, simply does not conform to the facts as the witnesses and the security video have presented them. I admire defense counsel’s efforts at legal advocacy, but, as counsel for the Crown said in reply, the self-defense theory simply has no air of reality.

[36] Furthermore, two passengers on Mr. Michael’s second streetcar of the night, Mr. Assimakopolous and Mr. Byrne, both witnessed similar conduct. Mr. Michael verbally harassed some female passengers, and then when told to stop by some male passengers reacted by brandishing what by all appearances was a gun in his waistband. It is impossible to conceive that he was also, incongruously, showing Mr. Assimakopolous and Mr. Byrne his cell phone holster, or that he was reacting to their threatened violence. Neither of them had any reason to get involved with him except as good Samaritans trying to calm down someone who was bothering female passengers.

[37] Taking into account all of the evidence, I have no doubt whatsoever that Mr. Michael assaulted Ms. Brio and threatened Mr. Marchand and Messrs. Assimakopolous and Byrne by brandishing what appeared to be a pistol. Although the weapon has never been found, three witnesses saw it up close and were all convinced that it was a real, black metallic gun. Whether it was an imitation firearm or the real thing, it looked the part and showing it off in an intimidating fashion on a TTC streetcar prompted the foreseeable reaction of fear.

[38] Accordingly, I find Mr. Michael guilty on all counts.

Morgan J. Date: July 22, 2016