COURT FILE NO.: CR-16-4-481 DATE: 20170314

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - TEVIN CAMPBELL

Counsel: Sharna Reid, for the Crown Marco Forte, for the accused

HEARD: January 31 to February 7, 2017

K.L. Campbell J.:

I

Overview

[1] The accused, Tevin Campbell, stands charged with four offences, namely, robbery, aggravated assault, breach of recognizance, and failing to comply with a probation order. All of these offences are alleged to have been committed in Toronto on October 27, 2015. The complainant with respect to the two crimes of violence, is Jack Tao. The accused has pled guilty to the alleged breach of recognizance, but not guilty to the three other alleged offences.

[2] With respect to the most serious charges, the two alleged crimes of violence, the Crown alleges that, on October 27, 2015, the complainant, an admitted heroin addict, attended in a second floor stairwell, inside a low-rise community housing complex at 17 Cane Grassway, near the intersection of Jane Street and Firgrove Crescent in Toronto. He had agreed to meet the accused in this “high crime” neighbourhood because he wanted a refund on his last heroin purchase, given that the quality of the heroin he had received from the accused was woefully sub-standard. Further, approximately two weeks earlier, the accused had stolen the complainant’s black Sony Experia cell phone, and he wanted to discuss its return.

[3] According to the complainant, when he arrived at the agreed stairwell meeting place, the accused and a confederate quickly attacked him. They were almost immediately joined by approximately eight other men, who all participated in the beating and robbery of the complainant, at the direction of the accused, the “mastermind” of the attack. The complainant testified that, during this assault, he was repeatedly punched and kicked, he was stripped naked, any items of value were stolen from him, and a bottle of the lemon-lime soda drink, 7-Up, was poured over his head. The accused then told the complainant that he was “banned” from the area, and not to return. The accused and the other assailants then left the scene.

[4] There is no issue between the parties that the complainant suffered serious physical injuries to his face and head at some point on the night of October 27, 2015. Indeed, according to the admitted hospital medical records, the complainant suffered, amongst other injuries, a “blow out fracture” of the orbital bone around his left eye, a displaced fracture of his nose, and extensive bruising to his face, including a shoe imprint bruise to his forehead.

[5] The defence argues, however, that the Crown has failed to establish, with the requisite degree of certainty, that the accused was involved in the alleged assault or robbery of the complainant. In advancing this position, the defence attacks the credibility and reliability of the complainant as a witness, arguing that he may well be lying about the alleged involvement of the accused in these crimes of violence.

II

The Presumption of Innocence and The Burden of Proof on the Crown

[6] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial, and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, at pp. 682-683, 687.

[7] An accused need not testify in his or her defence and, if the accused elects to remain silent in the face of criminal allegations, as Mr. Campbell has elected to do in the present case, no adverse inference can properly be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See R. v. Prokofiew, 2012 SCC 49, per Moldaver J. at paras. 4, 10-12, 15, 20-21, 26, per Fish J. at paras. 64-65; R. v. Noble, [1997] 1 S.C.R. 874, at para. 72. See also R. v. Tomlinson, 2014 ONCA 158, at paras. 97-98; R. v. Caron, 2014 BCCA 111, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, at paras. 91-92.

[8] In a case such as the present one, it is also important to recall the nature of the heavy burden of proof cast upon the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, [1997] 3 S.C.R. 320; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

III

Analysis of the Evidence

1. The Alleged Crimes of Violence – Robbery and Aggravated Assault

a. Introduction

[9] The Crown fairly conceded that the case against the accused in relation to the alleged crimes of violence turns upon acceptance of the key elements of the testimony of the complainant, Jack Tao. The Crown also fairly conceded that, for a variety of good reasons, I am obliged to approach the testimony of the complainant with care and caution and to look for any evidence that might tend to confirm the accuracy and reliability of his testimony, as required by R. v. Vetrovec, [1982] 1 S.C.R. 811. After all, as the Supreme Court of Canada noted in R. v. Khela, 2009 SCC 4, at para. 2, where the guilt of the accused “is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.” The Crown argued, however, that the evidence of the complainant was confirmed in a number of important respects and that, accordingly, the alleged guilt of the accused has been established for the offences of robbery and aggravated assault beyond a reasonable doubt.

[10] At a fundamental level, notwithstanding the obvious frailties of the complainant as a witness, the Crown’s case against the accused is not an unpersuasive one. It is clear that the complainant attended at the building located at 17 Cane Grassway, as he said he did, at approximately 9:00 p.m. on the night of October 27, 2015. The video recording from the security/surveillance camera located in the lobby of the building shows the complainant entering the building at approximately that point in time, without any of the injuries that he suffered later that night. Further, just 20 minutes later, the complainant placed a call to the 911 emergency number, complaining of the attack and robbery and identifying the accused, by name, as one of the individuals that was involved in the commission of these offences. The parties agree that, given the prior relationship between the complainant and the accused, it is unlikely that the complainant would have mistakenly identified the accused during this 911 call. In addition, in a subsequent flawlessly conducted sequential photograph identification “line-up,” the complainant immediately confirmed his recognition of the accused as one of the individuals involved in these offences, referring to him as the “mastermind” of the offences. Finally, it is apparent from a “voice note” recording subsequently created by the accused on November 2, 2015, indicating, essentially, that “Jack … got crushed,” that the accused at least knew, within a week, about the violent assault on the complainant that took place on October 27, 2015.

[11] Viewed from this perspective, it would seem that unless the complainant is intentionally manufacturing his evidence about the alleged involvement of the accused in these offences, and deliberately falsely implicating the accused in these crimes, the accused is probably guilty of the commission of these offences. However, it is upon this very issue, for the reasons I will hereafter outline, that I have a reasonable doubt as to the alleged guilt of the accused. In my view, it is not at all unreasonable to conclude that it is possible (if not probable) that the complainant is, for his own reasons, deliberately falsely implicating the accused in these offences.

b. The Complainant’s Animus Toward the Accused

[12] First, the complainant has the necessary animus against the accused that might motivate him to provide false evidence implicating the accused in an offence he did not, in fact, commit. During the course of his viva voce testimony, the complainant often spoke directly to the accused, as he sat silently in the prisoner’s dock. In other words, the accusations that the complainant made during the course of his testimony were frequently leveled directly at the accused. Indeed, at one point in his evidence, the complainant called the accused a “piece of shit,” and had to be reminded that the courtroom was not a place for name-calling. The complainant’s dislike, if not hatred, for the accused was palpable through most of his testimony.

[13] While it is certainly possible that the complainant’s animus toward the accused is due to the alleged aggravated assault and robbery of the complainant by the accused and his friends, as the Crown argued, it is also possible that it was motivated by other factors. I am not convinced that the evidence in this case reveals the true nature of the relationship between the accused and the complainant. Moreover, I am convinced that it is the complainant that is concealing the true nature of that relationship, for his own reasons. Those concealed reasons may well provide great insight into why the complainant bears this obvious animus toward the accused, and might well explain why he would want to falsely incriminate the accused.

c. Phone Records of Communications Between the Complainant and the Accused

[14] In his evidence in-chief, the complainant testified, essentially, that he had few telephone communications with the accused. The complainant explained, more particularly, that there were some initial phone calls between them about the quality of the drugs that were sold to him by the accused and to coordinate the further purchase of heroin. There were then some follow-up text messages from the complainant complaining about the quality of the heroin, which were almost entirely ignored by the accused.

[15] The objectively reliable phone records that were produced in this case, however, clearly established a very different version of events. Indeed, when confronted with these records, the complainant agreed that they painted a very different picture of the communications between he and the accused. While the complainant was unable to recall the vast majority of these numerous communications, or offer any explanation as to what he and the accused might have been discussing during these communications, these phone records established the following:

• In the 14 days between August 17 and 30, 2015, the complainant contacted the accused 13 times by way of telephone calls or text messages.
• In the 13 days between September 9 and 21, 2015, the complainant contacted the accused 12 times by way of telephone calls or text messages.
• During the four day period between October 16 and 19, 2015, the complainant and the accused contacted each other by way of telephone calls or text messages some 30 times. During this brief period of time, the accused was, for the first time, the originator of some of the communications, contacting the complainant. Some of the communications during this four day period took place in the early morning hours (e.g. between 1:51 and 3:59 a.m. on October 16, 2015).
• On October 21, 2015, just one week before the alleged offences, there were some 70 communications between the complainant and the accused between 12:23 a.m. and 7:39 p.m.
• Contrary to the testimony of the complainant, these phone records revealed no communications between the complainant and the accused on the date of the alleged offences, namely, on October 27, 2015.

[16] As I have already indicated, when confronted with these records, the complainant purported to have no recollection of these many communications between he and the accused, and he could offer no insights as to what they may have been discussing during these many contacts. Even with respect to the 70 communications on October 21, 2015, just one week before the alleged offences, the complainant’s memory was miraculously blank with respect to what he and the accused were discussing.

[17] I reject the testimony of the complainant that he does not recall these communications, nor have any recollection of what he and the accused may have been discussing. I am simply unable to accept that the complainant engaged in all of these numerous communications with the accused in the days leading up to the alleged offences, and yet now cannot recall any of the these communications or their substantive content. Instead, I am driven to conclude that the complainant is lying in this regard in an effort to conceal the true nature of his relationship with the accused and the substance of their communications in the days leading to the alleged offences. Admittedly, I do not know why the complainant is lying in relation to these communications – but, I am satisfied that he is lying about them. Of course, the hidden reason for the complainant’s deliberate dishonesty in relation to these communications may provide the explanation as to why the complainant would falsely incriminate the accused in these alleged offences.

[18] In any event, even viewed in isolation, this conclusion, that the complainant is being deliberately dishonest in his evidence, must significantly undermine the complainant’s potential value as a witness in these proceedings.

d. The Complainant Exaggerated the Attack and His Injuries

[19] In his testimony, the complainant significantly exaggerated the nature of the physical attack on him, and the physical injuries that he suffered in the result.

[20] The complainant testified that for five minutes straight as many as ten different men, including the accused, beat him while he lay helpless on the floor of the stairwell. He was punched and kicked repeatedly by this group of men during this period of time. According to the complainant, this extensive beating left him with many physical injuries, and bruising that covered almost his “entire body.” Indeed, the complainant purported to have a difficult time articulating what parts of his body did not have bruising after this beating. He explained that he first noticed this extensive bruising when he was at the hospital being treated for his injuries later that night.

[21] There is no question that the complainant suffered a number of very serious injuries to his face and head, including his eyes and ears. However, neither the photographs of the complainant’s injuries, nor the medical reports that were provided as part of the evidence in this case confirm the other injuries allegedly suffered by the complainant.

[22] The alleged extensive bruising to his entire body is simply not revealed by any of the photographs taken by the police to document his injuries. More particularly, the 20 photographs that were taken by the police while the complainant was being treated at the Humber River Hospital show no visible bruising or other physical injury to any part of the complainant’s body below his neck area. The complainant purported to point to bruising on his arms, chest and stomach in these photographs. By my eyes, however, the photographs reveal no such bruising.

[23] Equally importantly, the parties have agreed that the “head-to-toe” medical examination of the complainant by the medical personnel at the Humber River Hospital revealed that “no further injuries were noted” beyond the injuries to his face and head.

e. The Absence of Any Corroboration as to the Physical Location of the Attack

[24] The complainant testified that as a result of his beating in the second floor stairwell on October 27, 2015, and the extensive physical injuries that he suffered during this beating, there was “blood everywhere” in that area. While he agreed that there might not have been blood all over the walls in the area, the complainant was sure that there was at least blood located in the area where he had been lying on the stairwell floor while he was being beaten.

[25] The subsequent police investigation of this area, in the early morning hours of October 28, 2015, did not, however, reveal the presence of any blood in the second floor stairwell where the complainant alleged that the beating took place. The complainant admitted that he was confused by the absence of any blood in the stairwell after the beating, and he speculated that the accused and his friends might have quickly cleaned up the area before the police arrived.

[26] The complainant also testified that after he was beaten, stripped naked and robbed of his belongings, one of his assailants poured a soda bottle of 7-Up over his head. The complainant testified that he saw this assailant throw this 7-Up bottle onto the floor. He told the police that, in addition to the blood stains, they would also find the empty 7-Up bottle in the stairwell at the scene of the beating.

[27] The police did not, however, find any soda bottle in the second floor stairwell. The complainant speculated that the accused and his friends might have picked up the empty 7-Up bottle, as well as cleaned up the blood staining, before the arrival of the police.

[28] During the course of their investigation in the early morning hours of October 28, 2015, the police did discover a fresh spot of some clear, sticky liquid on the floor in the second floor stairwell. While this spot might possibly have been the residue of spilled 7-Up soda, this could also have been any other type of clear, sticky fluid.

[29] In my view, the results of the police investigation into the alleged offences of violence on October 27, 2015, provide no significant confirmation or corroboration of the testimony of the complainant as to the alleged location of the offences. Where one might reasonably have expected the police to find blood staining and/or an empty 7-Up soda bottle, if the complainant was being truthful as to the location of the alleged offences, the police found neither. Moreover, there was no evidence from the police suggesting that any portion of the second floor stairwell had been recently scrubbed clean (i.e. that recent blood staining had been cleaned). Indeed, Cst. Randhawa testified that the stairwell area did not look like it had recently been cleaned. Of course, the presence of the freshly spilled, clear, sticky fluid residue suggests that the stairwell had not recently been cleaned.

[30] Of course, if the complainant is, for whatever unknown reasons, lying about the location of the alleged offences, he may well also be lying about who was involved in the commission of these alleged offences.

f. The Security/Surveillance Video Recording of the Lobby

[31] The video recording taken from the security/surveillance camera located in the lobby area of the building located at 17 Cane Grassway, shows the complainant entering the lobby of the building, through a series of two doors, at approximately 9:02 p.m. on October 27, 2015. At the time he entered the lobby, the complainant was fully dressed, wearing blue jeans, running shoes, a black long-sleeved jacket, a hooded grey sweater, and a black and white baseball cap. As he entered the building, the complainant removed the hood from his head, and left it hanging over his jacket at the back. He had a black glove on his right hand, but there was no glove on his left hand. The complainant was only on camera for approximately eight seconds, as he walked quickly into the building and through the lobby (from right to left, as seen on camera).

[32] This same video recording showed the complainant leaving the lobby area of the building, through this same series of two doors, nearly 7½ minutes later, at approximately 9:09 p.m. As is evident from the video recording, when he left the building, the complainant was dressed exactly as he was when he entered the building, with the exception that, when he left the building, he was not wearing any gloves on either hand, and his black jacket was open at the front. He was only on camera inside the building for approximately nine seconds, as he walked quickly into the lobby (from the left side, as seen on camera) and outside the building. The complainant was followed outside by an asian male. Once they were outside the building, the complainant and the asian male remained in front of the doors for a period of approximately 2½ minutes, before the complainant left the area in the same direction he had come from (i.e. the complainant departed to the right side, as seen on camera), and the asian male returned inside the building.

[33] According to the complainant, it was during the 7½ minute period of time between these two video recordings, between 9:02 and 9:09 p.m., that he met with the accused in the second floor stairwell of the building, and was violently attacked, extensively beaten, stripped naked, humiliated with soda, and robbed of his belongings by the accused and his large group of friends. According to the complainant, the asian male that followed him outside was someone that encountered him after the offences and who offered him money to take a taxi home.

[34] In my view, these video recordings provide no concrete support for the complainant’s viva voce testimony that he was attacked and robbed during this intervening period of time by anyone. Indeed, these video recordings undermine his testimony.

[35] Having carefully reviewed these recordings many times, it appears to me that the complainant walked and appeared, when leaving the building, almost exactly as he did when he entered the building. When he was leaving the building, he was wearing the same clothes, and was wearing them in the same manner. The complainant was no more disheveled in his appearance when he was leaving the building. Further, there was no evidence of any blood or physical injuries, although the security/surveillance camera viewed the complainant almost entirely from behind. There was no discernible change in the complainant’s gait as he was leaving the building. He was not limping, or walking more slowly, or with any apparent discomfort. When the complainant got outside the building, he bent over, at the waist, for about ten seconds, but it appears to me that he may have been simply tying up the laces on one of his running shoes, which laces were dragging on the floor as he walked through the lobby on his way outside.

[36] I find it difficult to believe that, if the complainant had been so badly and extensively beaten by this group of men, at the time and in the location he claimed, that there would be no evidence of that violence in the video recording of the complainant in the moments almost immediately after that beating. Given the gravity of the violence inflicted on the complainant, the sheer number of assailants, and the duration of their attack, one would reasonably expect to see at least some evidence that the complainant was physically injured or bleeding, or at least had some of his clothing disheveled. Yet, the video recording of the complainant leaving the building immediately after the alleged beating in the second floor stairwell reveals no evidence of such a beating. Instead, when he left the building immediately after the alleged attack, the complainant looked almost exactly as he did when he entered the building before the attack. This reality, in and of itself, causes me to seriously doubt whether the complainant suffered his physical injuries at the time, and in the location, he described in his evidence.

[37] Of course, if the complainant is lying about where and when he suffered his physical injuries, it is difficult to place any confident reliance upon his testimony as to who caused those physical injuries.

g. The Complainant is a Heroin Addict With a Long Criminal History

[38] The complainant admitted that he has a long criminal history. Despite the fact that the complainant is still only 22½ years old, his criminal record, which includes numerous youth court and adult court entries, includes some 15 different findings of guilt or convictions for the offences of: (1) possession of a prohibited or restricted firearm with ammunition; (2) possession of a scheduled, controlled substance; (3) attempting to obstruct the course of justice; (4) failing to comply with a recognizance; (5) failing to comply with a probation order; (6) assault; (7) uttering threats; (8) extortion; (9) theft under $5,000; and (10) assault with a weapon. In addition, the complainant admitted that these are not the only criminal offences that he has committed, acknowledging that he has committed other offences for which he has not been apprehended or prosecuted.

[39] The complainant admitted that he is addicted to heroin. More particularly, he admitted that he started using oxycontin about five years ago, and moved to using heroin close to two years ago. While he has tried to quit this addiction many times, he has admittedly relapsed back into using heroin each time. At the time of the alleged offences, the complainant was using a significant quantity of heroin every day. Indeed, according to the complainant, his relationship with the accused arose through his heroin addiction, in that he claims to have purchased heroin from the accused on two separate occasions in the early fall of 2015. The complainant testified that he is now on a methadone treatment program to help him with his addiction.

[40] These circumstances regarding the personal background of the complainant impact quite negatively on his credibility and reliability as a witness. Indeed, these circumstances confirm my conclusion that the complainant is an inherently incredible and unreliable witness.

h. The Complainant’s Admittedly “Selective” Memory

[41] The complainant admitted that he has a “selective memory,” in that he chooses to recall things that are important to him, but is unable to recall events that are unimportant to him. This “selective memory” manifested itself throughout the complainant’s testimony.

[42] The complainant often had a difficult time recalling the details of apparently significant events. Indeed, he testified that the only thing he recalled clearly was being beaten up. Further, the complainant often paused, for long periods of time, before answering questions that were posed to him, seemingly pondering over what the answer might be. Periodically, the complainant expressly asked to have his memory “refreshed” by counsel. These requests struck me as, essentially, requests by the complainant to be told or clearly led to the answer to the question posed. At one point in his evidence, the complainant himself spontaneously suggested that he may have “lost [his] brain down the road somewhere.”

[43] Given the many problems associated with the complainant’s memory, the great majority of his testimony must be viewed as inherently unreliable.

i. The Mistaken Identification of Others in the Photograph Lineup

[44] On October 28, 2015, the complainant participated in a flawlessly conducted sequential photograph “lineup.” During the course of this 12 photograph “lineup,” the complainant positively identified a total of seven individuals, including the accused, as individuals who were all part of the group of 10 men who assaulted and robbed him on the night of October 27, 2015. As he identified these individuals, the complainant explained the role that they each played in the offences against him. When shown the photograph of the accused, the complainant immediately identified him by name and described him as the “mastermind” who had “set it up” and “organized” the offence, and who had robbed him of his cell phone two weeks earlier.

[45] At the conclusion of the police investigation in this matter, the accused was the only person who was arrested and charged with the alleged offences. The Crown conceded that three of the other six individuals positively identified by the complainant could not possibly have been involved in the commission of these offences as they were in jail at the time (i.e. on October 27, 2015). In his trial testimony, the complainant admitted that while he now knows it was “impossible” for these three identified individuals to be involved in these offences, at the time he positively identified them as some of his assailants, he honestly believed that they had been involved in these alleged offences. The complainant explained that he might have suffered some kind of brain damage as a result of these offences.

[46] Needless to say, the complainant’s positive, but quite mistaken, identification of these individuals as some of his assailants in the alleged offences, serves only to further undermine his reliability as a witness.

j. The Established Lies in the Complainant’s Testimony

[47] It is apparent that, during the course of his testimony, the complainant was clearly caught in a number of lies.

[48] For example, the complainant testified that, on February 2 or 3, 2016, long after the commission of the alleged offences, he returned to the building at 17 Cane Grassway for the purpose of gathering some information, and verifying the dimensions of the stairwell in which the offences were committed. The complainant testified that while he was there, he was followed by a couple of young men and ultimately confronted as the “rat” that had put the accused in jail. The complainant testified that he told the police about this incident. The officer-in-charge of this case, Det. Cst. Colacci, confirmed that the complainant had told him, on May 17, 2016, just prior to the preliminary inquiry, about an incident of threatening when he had returned to the Cane Grassway complex. But, according to Det. Cst. Colacci, the complainant told him that the purpose of his return to this location was to purchase more heroin, not to gather information about the case or verify the dimensions of the stairwell. I find that the complainant lied to the court about the reason for his return to the building at 17 Cane Grassway.

[49] By way of another example, in his trial testimony, the complainant also recalled an occasion when he was approached at a “KFC” outlet by friends of the accused, threatened, and told not to attend court to testify against the accused. While the complainant admitted that he did not mention this incident during his preliminary inquiry evidence, he testified that he told the police about this incident. Again, the officer-in-charge of this case, Det. Cst. Colacci, gave conflicting evidence, denying that the complainant had ever reported this alleged threatening incident. I find that the complainant lied about telling the police about this alleged incident of threatening.

[50] Finally, during his evidence, the complainant testified that, after the accused stole his black Sony Experia E3 cell phone in mid-October of 2015, he was able to continue to contact the accused using his mother’s borrowed Apple iPhone 4S, as he had the accused’s phone number recorded physically in his “phone book” of numbers. In support of his evidence that he had such a phone book, the complainant testified that a police officer took a photograph of his phone book. Again, however, the police evidence did not confirm the testimony of the complainant in this regard. More specifically, according to Det. Cst. Colacci, as far as he was aware, the police never discovered any such phone book, and never took any photograph of any such phone book. Again, I find that the accused lied about the existence of this alleged “phone book” and about a police officer taking a photograph of this alleged phone book.

[51] These three examples suggest that the complainant is a witness who will deliberately fabricate false testimony when it advances his interests. This tendency further undermines the credibility and reliability of the complainant.

k. The Text Message Communications With “Keisha” – The Money Not to Testify

[52] The complainant testified that over the three month period between mid-February and mid-May of 2016, he engaged in a number of “threeway” communications with the accused and a woman known only as “Keisha.” According to the complainant, Keisha was an ex-girlfriend of the accused. Further, while the complainant denied that he was ever romantically involved with Keisha, he admitted that he began a “friendship” with Keisha after the accused was arrested (on November 9, 2015) and detained in jail pending his trial in relation to the present charges. The complainant also admitted that, by the time he testified at the preliminary inquiry in this case, on May 20, 2016, he had been “friends” with Keisha for “a few months.”

[53] According to the complainant, this series of communications began with a couple of telephone conversations wherein the accused, who was on the line with Keisha: (1) admitted that he robbed the complainant and told him that he was “sorry” for what he did; (2) told the complainant that he wanted to “make it up to him” and would somehow pay him back; and (3) told the complainant that he would pay him not to come to court to testify against him. The complainant testified that he did not take this seriously, but just continued to talk to the accused in order to give him “false hope,” and so that he could “feel the pain” that he had felt.

[54] The Crown produced police photographs of a series of text messages from the complainant’s cell phone. These messages were apparently exchanged between the complainant and Keisha after these “threeway” telephone conversations. None of these messages are alleged to have originated directly from the accused. In these messages:

• The complainant asked Keisha to relay his messages to the accused, and she ostensibly appeared, on occasion, to respond on his behalf;
• The complainant repeated his allegation that the accused set him up, had him “jumped” by “ten guys,” and had him severely beaten and “ripped off;”
• The complainant suggested that the accused had his boys threaten him and that this “stunt is going to cost him;”
• The complainant suggested that he was planning to “drop” the charges against the accused, but may now, in light of the threats against him, keep the accused in jail “for good;”
• The complainant demanded that the accused immediately “pay [him] back” for everything he stole and for his medical bills, which was “easily $1000;”
• The complainant indicated that, by not testifying, he was saving the accused seven years in jail, but since the accused had “bullshitted” him, he was going to be “doubling the fees,” and the accused had better “pay up” or he would testify against him, and also “press charges for witness intimidation” and breach of his recognizance for having “contact” with the “victim;”
• The complainant said that he was expecting $2,000 before 9:00 p.m. on May 18, 2016 “at the latest,” or the accused “can be sure” that the complainant was “coming to court to testify against his ass,” and that the accused could then expect to spend the next seven years in prison for his original offences, and an additional three years “on top of that” for “witness intimidation” and breaching his recognizance;
• The complainant threatened to “press charges” against the accused for “threatening to cause bodily harm,” “using a semi-automatic weapon,” “stalking” and “attempted kidnapping” as a result of the threats that were made to the complainant and his family by the accused’s “boys;”
• The complainant indicated that he would call the accused at any random time on May 5, 2016, and that the accused better have at least $1,000 by then, and that the accused should make sure he gets him his money, otherwise he would see the complainant in court;
• In the days immediately prior to the preliminary inquiry, the complainant expressed a willingness to “take half first,” namely, $500, and then another $500 on May 19, 2016, after which he would not “show up for court.”

[55] The complainant testified that just before the commencement of the preliminary inquiry, he met Keisha at the Jane-Finch Mall and accepted $500 from her “not to come to court.” Nevertheless, the complainant still appeared at the preliminary inquiry in this case on May 20, 2016 to provide his testimony. According to the complainant, he had always intended to come to court. The complainant explained that, initially, at the preliminary inquiry, he was “scared to admit” taking this money and, in fact, he expressly denied receiving any money not to testify. In his trial testimony, however, the complainant explained that, in lying in this regard, he did not want to give the accused “any chance.” When asked to explain this justification, the complainant said that he was not sure what was going through his mind at the preliminary inquiry. Subsequently, however, upon reflection, he decided that he wanted to “play it fair” and he ultimately admitted taking the $500 not to testify against the accused.

[56] In my opinion, this body of evidence does not support the case for the Crown in relation to the charges of aggravated assault and robbery, but rather serves only to undermine it.

[57] First, this body of evidence does not, in my assessment, tend to confirm or corroborate the trial testimony of the complainant as to the alleged involvement of the accused in these offences. Significantly, there is no direct evidentiary link between these text messages and the accused. They were all exchanged between the complainant and his “friend” Keisha. Moreover, the Crown did not call Keisha as a witness in this case. Accordingly, there is no direct evidence that she passed any of these messages along to the accused, and then replied to the complainant on his behalf. Even viewed circumstantially, I decline to infer that these text messages incriminate the accused in these offences. In my view, given that the complainant has deliberately concealed the true nature of his relationship with the accused, and has admitted the development of his “friendship” with Keisha after the arrest and during the pre-trial detention of the accused, it is reasonably possible that this body of text messages has been artificially constructed between the complainant and Keisha for their own personal reasons in an effort to falsely incriminate the accused.

[58] Second, this body of evidence, in my assessment, serves to further significantly undermine the reliability and credibility of the complainant. It is important to appreciate that, on its face, these messages reveal that the complainant: (1) was willing to sell his testimonial co-operation to the accused in return for monetary compensation; and/or (2) was trying to extort money from the accused by threat of his testimony against him, the institution of further criminal charges against him, and the resulting imposition of a lengthy term of imprisonment upon the accused. Further, the complainant eventually admitted that he, in fact, accepted $500 not to testify against the accused, promptly lied about accepting that money at the preliminary inquiry days later, and then gave evidence against the accused in any event. I do not accept the complainant’s explanation that he had always intended to testify against the complainant and was just trying to provide him with “false hope.”

[59] In my view, this evidence further proves that the complainant is an inherently incredible and unreliable witness who simply cannot be trusted to provide truthful testimony.

l. The Sony Cell Phone in the Possession of the Accused

[60] The complainant testified that in mid-October of 2015, approximately two weeks before the alleged offences of aggravated assault and robbery, he met with the accused to complain to him about the quality of the heroin he had been sold. According to the complainant, at that meeting, the accused stole from him a black Sony Experia E3 cell phone. The complainant detailed how he had purchased this cell phone on June 22, 2015, together with a Wind Mobile user contract, and he produced a receipt establishing his purchase of the phone, including the packaging box that contained the phone when it was purchased.

[61] The Crown contended that a series of text messages, photographs and voice notes between the accused and his girlfriend, “Nyesha,” on the night of October 27-28, 2015, supported the testimony of the complainant. I disagree. Viewed in context, and cumulatively, these communications establish only that, sometime on the night of October 27, 2015, the accused came into possession of a black Sony cell phone, that functioned when the accused installed his “Wind chip” in the phone, and that the accused intended to give this phone to his girlfriend.

[62] It is, of course, possible that that the Sony cell phone in the possession of the accused on the night of October 27, 2015 was the same Sony cell phone that originally belonged to the complainant. However, it is no more than possible. There are, no doubt, many black Sony cell phones in the city of Toronto, and there is nothing to more closely identify this particular black Sony cell phone as the one that was owned by the complainant.

[63] Further, the complainant was clear that the accused stole this phone from him approximately two weeks earlier. The complainant did not suggest that this cell phone might have been taken from him during the offences allegedly committed on October 27, 2015.

[64] These communications between the accused and his girlfriend clearly suggest that he only came into possession of this cell phone on the night of October 27, 2015 – not earlier. Accordingly, in my view, these communications do not support the testimony of the complainant.

m. The Lies in the 911 Emergency Phone Call

[65] The audio recording of the 911 emergency phone call that the complainant made at approximately 9:20 p.m. on October 27, 2015 was made an exhibit in this matter. The complainant agreed that this recording accurately reflected what he said to the 911 operator when he called to report the alleged offences.

[66] During the course of this call, when asked what items had been taken from him, the complainant, amongst other things, advised the 911 operator that his assailants took two cell phones, his belt, and his shoes. Significantly, the video recording of the complainant leaving the lobby area of 17 Cane Grassway, at approximately 9:09 p.m. that same night, right after the alleged offences, shows that the complainant was still wearing both of his shoes.

[67] In his testimony, the complainant admitted that, in telling the 911 operator that his assailants stole his belt and his shoes, he was being “untruthful.” The complainant also agreed that, during the offences on October 27, 2015, his assailants did not, in fact, take two phones from him, but rather they only took his mother’s iPhone. In addition, during his 911 call, the complainant never specifically identified 17 Cane Grassway as the building where the alleged offences took place, notwithstanding his general familiarity with this neighbourhood, and his familiarity with the buildings in this neighbourhood in particular.

[68] It is difficult to understand why the complainant would lie to the 911 operator on any topic. But lie he did. These lies also serve to undermine his credibility and reliability as a witness.

n. Conclusion

[69] There is no question that the complainant was attacked on the night of October 27, 2015, and that he suffered serious physical injuries to his face and head as a result. However, I am not satisfied beyond a reasonable doubt that the accused was involved in this attack.

[70] Plain and simple, the complainant is an incredible and unreliable witness. He is a heroin addict with a long history of criminal offences. He has an admittedly “selective” memory. He mistakenly identified a number of other innocent men as being involved in these alleged offences. The complainant has lied in a number of material respects in his trial testimony, as well as in his 911 emergency call shortly after the alleged offences.

[71] Moreover, the complainant’s testimony that the accused was involved in these offences finds no significant support in any of the other evidence in this case. There is no physical or forensic evidence, or video surveillance evidence, connecting the accused to these offences. In my view, it is quite possible that the complainant has deliberately falsely implicated the accused in these offences. The complainant’s animus toward the accused was obvious. The complainant has dishonestly concealed the true nature of his relationship with the accused, and pretended not to recall the substantive details of their many communications leading up to October 27, 2015. The complainant exaggerated the scope of his physical injuries and the nature of the physical attack upon his person. The police investigation suggests that the complainant may well be lying about the location of the alleged offences.

[72] As the police witnesses in this case testified, this particular community housing complex is a “pretty bad neighbourhood” with “a lot of violent crime,” including murders and violent robberies, with known gangs in operation, and where people are frequently beaten up. This is not a case where the complainant could not have been attacked, beaten and robbed by a group of men that did not include the accused.

[73] In the result, as I have indicated, I am simply not satisfied beyond a reasonable doubt that the accused is guilty of the alleged offences of aggravated assault and robbery. Accordingly, he must be acquitted of these offences.

2. The Other Offences – Breach of Recognizance and Breach of Probation

[74] The accused also stands charged with breach of recognizance and failing to comply with a probation order.

[75] The breach of recognizance charge, more particularly, alleges that, on or about October 27, 2015, the accused was at large on a recognizance, a condition of which prohibited him from the possession of more than one cell phone, and that the accused, without lawful excuse, failed to comply with that condition. The accused pled guilty to that charge, and the evidence in this case fully supports that plea. More specifically, the evidence (including the admissions) establishes that: (1) as of December 15, 2014, the accused was bound by a recognizance that included a condition that the accused “not possess more than one cell phone, pager or personal digital assistant;” (2) the accused was bound by that recognizance condition on October 27, 2015, and on November 9, 2015 (the date of his arrest); and (3) prior to July of 2015, on October 27, 2015, and on November 9, 2015, the accused was in possession of two cell phones, namely, an LG Nexus cell phone and a Motorola cell phone. Accordingly, as the evidence supports the plea of guilty by the accused, the accused must be found guilty of this offence. Defence counsel did not suggest otherwise.

[76] The breach of probation charge, more particularly, alleges that, on or about October 27, 2015, the accused was bound by a probation order, that required him to “keep the peace and be of good behavior” and, without reasonable excuse, the accused failed to comply with this probation order. The evidence clearly establishes that, on October 27, 2015, the accused was on a probation order that required him to “keep the peace and be of good behavior.” However, given my conclusion that the accused is not guilty of the two offences of violence allegedly committed against the complainant on October 27, 2015, I am not satisfied beyond a reasonable doubt that the accused was in breach of this condition of his probation order. Accordingly, the accused must be found not guilty of this alleged offence. The Crown did not suggest that there was any basis to conclude that the accused was guilty of this offence if he was not guilty of the alleged offences of aggravated assault and robbery.

IV

Verdicts

[77] In the result, the accused is found guilty of the offence of breach of recognizance, as charged in count three of the indictment, but is found not guilty of the alleged offences of robbery, aggravated assault and breach of probation, as charged in counts one, two and four (respectively) of the indictment.

Kenneth L. Campbell J.

Released: March 14, 2017