DELIVERED ORALLY DATE: September 22, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MANDELLA JOHN ARU ASOUTH
Jonathan Lall, for the Crown
Andrew Telford-Keogh, for the Accused
HEARD: May 29, 30, and 31, 2017
REASONS FOR JUDGMENT
Howard J.
Overview
1In a five-count indictment, the accused Mandella John Aru Asouth stands charged with common assault, assault with a weapon, possession of stolen property, breaking and entering, and possession of break-in instruments.
2There were two incidents that are said to give rise to the charges in the indictment. Both incidents took place in or about the early morning hours of Saturday, October 10, 2015.
3The first incident took place at 212 Geraldine Crescent in Windsor, Ontario, at the residential home owned and occupied by Mr. Ping Yu (or "Peter") Xue and his wife. This first incident involved an alleged break and enter that happened at that home some time between 9:00 or 9:30 p.m. on the Friday night before, when Mr. Xue went to bed, and about 5:00 a.m. on Saturday morning when he discovered that doors to their home were open.
4The second incident took place at 2764 Radisson Avenue in Windsor, Ontario, a number of blocks away from the Geraldine Crescent location, at the residential home owned and occupied by Chris and Michelle Williams. This second incident happened at about 8:00 a.m. that same Saturday morning. Mr. Williams found the accused sitting in his pickup truck, parked in his driveway. A physical altercation ensued between Mr. Williams and the accused. The accused was restrained by Mr. Williams with the help of his wife and a neighbour, the Windsor Police Service ("WPS") were called, and the accused was arrested by police at that site.
5Mr. Asouth pleaded not guilty to all charges against him.
6The trial of this matter was held, without a jury, in Windsor on May 29, 30, and 31, 2017. The court heard evidence from six witnesses over two days, including Mr. Xue, Mr. and Mrs. Williams, and the accused. Submissions were received on the third day.
Factual Background
7I do not propose to summarize the evidence of every witness who testified. My review of the facts is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues.
8As indicated above, the events in question took place in the morning hours of Saturday, October 10, 2015. Mr. Peter Xue had gone to bed the night before at about 9:00 or 9:30 p.m. in his home at 212 Geraldine Crescent. Mr. Xue resides in that home with his wife and their six-and-a-half-year-old son, as well as his cousin Mr. Yu Chen (or "Nick") Lin, who was living there at the time while he was studying at university to become a dentist; Mr. Lin stayed in a bedroom in the basement of Mr. Xue's home, which has three floors.
9Sometime around 5:00 a.m. Saturday morning, Mr. Xue's wife woke him up, shaking him awake, and said something to him in a whispered voice. Mr. Xue believed he heard a noise downstairs. Mr. Xue got out of bed and went downstairs to investigate. He found various doors to the home open. He found the front door to the house was open, and he explained that the family never uses the front door; it is typically only used when guests enter the home, and it is otherwise always kept locked. Mr. Xue also found the door between the home and the attached car garage open. As well, the heavy door to the attached garage was open.
10Mr. Xue thought that perhaps his cousin, Mr. Lin, was responsible for the open doors, and so he went downstairs to the basement to see if Mr. Lin was home. Mr. Xue knew that Mr. Lin had said he was going to Toronto to visit his girlfriend that weekend but he was not sure when Mr. Lin had left. He did not find Mr. Lin in the basement, but on his quick look, he observed the room was fairly messy. Mr. Xue did not think anything of it at the time because he thought Mr. Lin typically kept his living space fairly messy.
11Mr. Xue then texted Mr. Lin to ask him where he was, thinking that perhaps Mr. Lin had stopped by the home on his way to Toronto. Indeed, when he had gone to bed the night before, Mr. Xue had closed but did not lock the door to the house from the attached garage because he thought his cousin might come home. Mr. Xue waited about five or ten minutes for a response from Mr. Lin to his text, and when he did not respond, Mr. Xue closed and locked the doors and then returned to bed.
12Mr. Xue woke up later that morning around 9:00 or 9:15 a.m. He went outside and as he walked by his wife's car, which was parked on the left side of the driveway, he noticed that there were various papers, including the motor vehicle registration and insurance, receipts, and other documents that are usually kept in the glove compartment laid scattered on the passenger seat inside the vehicle.
13At that point, Mr. Xue believed his house had been broken into, and so he went in the house and telephoned Mr. Lin to ask him where he was the night before. Mr. Xue was concerned that perhaps some belongings of his cousin may have been taken. As Mr. Xue was talking to Mr. Lin on the phone, Mr. Xue walked down to the basement to look for certain belongings that Mr. Lin directed him to. Mr. Lin told Mr. Xue that he kept some money in an envelope in his dresser drawer in his bedroom, and he had some very important documents on a table in the larger, main room in the basement. Mr. Xue found the documents, but he did not find the money.
14Mr. Xue then went to look around the house. He discovered that a 13-inch Dell laptop computer of his was missing; Mr. Xue kept the laptop in another drawer in the main room in the basement, which drawer was open when he found it.
15Mr. Xue also found a can of silver spray paint laying on the middle of the floor in the garage. Mr. Xue kept the spray paint can to do touch-ups on his car. Further, he found that there was a small spot of silver spray paint on the wall from the garage to the basement, which Mr. Xue found very strange.
16Mr. Xue found nothing out of the ordinary on the main floor of the house.
17Mr. Xue called the police right away to report the break-in. A police constable attended and took a statement from Mr. Xue.
18The police subsequently contacted Mr. Lin and he gave a statement over the phone as well. Mr. Lin told the police that he kept a mix of Canadian and U.S. money in a T.D. Bank envelope in a dresser drawer in his bedroom in the basement; Mr. Lin said the envelope contained about $400 to $500 in mixed Canadian and U.S. cash.
19The police then texted Mr. Lin a photograph of items that were found in a backpack recovered from the scene of the arrest. Of the items depicted, Mr. Lin identified old passport photographs of himself that he had taken perhaps five or six years earlier, which he had used on a previous passport application.
20Mr. Lin also identified from the photograph that the police texted to him an older "Nexus 4" Android smartphone that belonged to him, which he used to play games and other apps on, and which he had left on his bed in his bedroom. Mr. Lin testified that he kept two smartphones and that while the older Nexus 4 was operable, one could not place a telephone call on that phone, for which purposes Mr. Lin used his other cellphone. Mr. Lin testified that when he returned to Windsor after his trip to Toronto, he found that his Nexus 4 phone was missing.
21Returning to the events of the morning of October 10, 2015, both Michelle and Chris Williams gave evidence about an incident that occurred at their home at 2764 Radisson Avenue, where they reside with their daughter (who was then 17 years of age) and their son (who was then 15 years of age).
22Mr. Williams testified that he got up about 7:30 or 7:45 a.m. that Saturday morning and went to make the morning coffee. Mrs. Williams said that it was soon after they got up that morning when, at about 8:15 a.m., she noticed the family dog sticking its nose out through the blinds and growling at something. Mrs. Williams opened the blinds and saw that the driver's side door was open on her husband's Ford F150 pickup truck. The pickup truck was parked in the driveway of the home at the time. The driveway is wide enough to accommodate only one vehicle. The F150 pickup was parked closest to the garage door, in front of Mrs. William's Ford Escape vehicle, which was parked immediately behind the F150, with both cars facing the garage door. The driveway is located to the left of the house (when viewing the front of the home from Radisson Avenue), and so the driver's side of the truck was farthest from the view from inside.
23A similar incident had happened about a year or a year-and-a-half earlier, when the door to the pickup was left open, and Mrs. Williams was irked that it had happened again. She yelled at her husband, "Chris, you left your truck door open again." Mr. Williams cursed, looked out and saw the truck door open, but could not see anyone; so he put on his flip-flops and went outside.
24It was cold that morning and the windshields were fogged up and/or covered with dew. Mr. Williams could not see inside the vehicle. He walked between the two vehicles, i.e., passing the tailgate of the truck, and then turned towards the open driver's door, approaching it from the rear of the vehicle.
25Mr. Williams said he saw the shoulder of a person sitting in the car behind the steering wheel. Mr. Williams was surprised and yelled at the person. The male person got out of the cab, turned around 180 degrees to face Mr. Williams, and stood with his back against the interior of the open driver's-side door. By that point, Mr. Williams had approached the intruder to within an arm's length.
26Mr. Williams described the man as being about 5'10", whereas Mr. Williams is 6' tall and was at least 50 lbs. heavier than the man. Mr. Asouth himself confirmed that he was 5'10' and weighed 130 lbs. Mr. Williams observed that the man had a backpack and was wearing black gloves. Mrs. Williams testified that the young man was wearing track pants, an "Under Armour" hoodie with a pocket in the front, and a "North Face" backpack. She believed he was wearing black gloves; when she tried to disarm the man of the knife, she believed he was wearing at least one glove but could not be 100% certain.
27Mr. Williams testified that the first thing the man did was take "two swings" at Mr. Williams, which he described as two closed-fist punches, the first with his right hand and the second with his left. The first punch grazed Mr. Williams' left temple; Mr. Williams said that it did not seriously injure him but certainly it "was enough to make me pay attention." Mr. Williams ducked the second swing thrown by the intruder.
28Mr. Williams was startled by the two swings. Facing the intruder, Mr. Williams tried to grab him; he said he "grabbed two handfuls of sweater and backpack." Mr. Williams tried to wrestle the man to the ground, using his greater weight and height to try to get on top of him, trying to use wrestling techniques that he had learned in high school.
29Ultimately, both men went down to the ground, on the strip of grass to the left of the driveway. The intruder was face down to the ground, trying to get on his hands and haunches, trying to escape, and Mr. Williams had his chest to the man's back, or rather the backpack that the man was wearing.
30Mr. Williams had some difficulty subduing the man. He said the intruder was very wiry, with his arms thrashing about, and his legs kicking. Mr. Williams said he was trying to control the man's torso and at least keep the man underneath him.
31Mr. Williams testified that at some point while they were wrestling on the ground, he called out to his wife.
32Mr. Williams testified that at some point he was aware of his wife coming out of the house and standing about five or six feet from the struggle. He remembers her calling out to him that, "he's got a knife!" Mr. Williams said he then tried to put his shoulder weight on the man, but his arms and feet were flailing everywhere. He testified that when his wife alerted him to the knife, he tried to get a view of the man's arms and hands. He put his left arm around the man's left arm and brought it up to the man's chest in what Mr. William's described as a "chicken wing" manoeuvre. Mr. Williams then grabbed the man's outstretched right hand with his own right hand. Mr. Williams observed that the man was holding a knife in his right hand and was trying to flip the blade but was having difficulty doing so, and Mr. Williams had "chicken winged" the man's left hand such that he could not use it.
33Mr. Williams testified that at some point while they were wrestling, while he had the man chicken-winged with his hand around his head, the man bit Mr. Williams on his left hand. Mr. Williams said the bite did not break the skin.
34Mrs. Williams testified that after she had initially alerted her husband to the open door of the truck, she went to finish making the morning coffee. At some point, she heard her husband yell in a loud voice, "Michelle!" That was the first time she knew something was wrong.
35Mrs. Williams said she went outside and saw that her husband and a young man were struggling. She heard her husband say, "how dare you take a swing at me." Mrs. Williams testified that as of her first observation of the intruder after she heard that comment from her husband, the man was in the truck, and her husband had got him by his two hands on the man's sweater, and was trying to pull him out of the truck, and then they wrestled to the ground. Mrs. Williams said she was not present to observe the young man throw any punch at her husband.
36Mrs. Williams described that while they were wrestling on the ground, her husband had the man in a sort of bear-hug, and during their wrestling, she saw the man fumbling with something, which she then realized was a knife. Mrs. Williams testified that she saw the man trying to open the knife. She tried to pull the knife from his hands but she could not. She yelled to her husband, "he's got a knife," and again she tried to take it from him but she could not.
37Mrs. Williams said that her husband then told her to "go get Mike." Mike was their neighbour who lived across the street. He was employed as a teacher who worked with troubled youth.
38Mrs. Williams testified that she ran across the street and banged on Mike's door; she was hysterical and screaming loudly. She said that within seconds Mike came running out. Mrs. Williams said she yelled at Mike, "he's got a knife, he's got a knife." Mike ran across the street and came to her husband's aid.
39Mr. Williams testified that when Mike came running over, he told Mike that the man had a knife in his hand. He said Mike went to the man's hand and got the knife away. Mr. Williams testified that once Mike disarmed the man of the knife, he felt he could back off a bit, but he kept his knee on the man, and Mike held the man's legs. At that point, Mr. Williams could hear the police sirens approaching. He remembered that the man said, "let me go, let me go," and Mr. Williams told him that he was not letting him go and the police were coming.
40Mrs. Williams testified that when Mike came to the aid of her husband, they managed to get the knife away from the man, and then Mike was holding on to his legs and Chris was holding on to the top of his body. She said that the young man was still struggling quite a bit, and it took all of Mike and her husband's combined efforts to subdue the man. She testified that she heard the young man ask them to let him go, that he couldn't breathe, and that they were hurting him. She heard the man repeat that multiple times. Her husband and Mike replied to him that he should then stop moving.
41Mrs. Williams testified that by that point the neighbours had come out, and her son was standing on the front porch. Mrs. Williams told him to stay on the porch but call the police and tell them they were being robbed. Mrs. Williams then took the phone from her son and spoke with police dispatch and told him the young man was armed.
42The police arrived on scene, and Mrs. Williams recalled that a constable said to the young man, who was still struggling at that point, "Windsor Police. Settle down," and she said the young man did settle down at that point.
43Following the young man's arrest, Mr. Williams surveyed his truck. He noticed some damage around the driver's side door: the door had surpassed its hinges and had folded the sheet-metal in a little. Mr. Williams observed the interior of the cab of the pickup and saw that his glove box had been rifled through, the centre console was flipped up, and there was stuff strewn all over the back seat. Mr. Williams denied keeping any knife in the truck, as he had no need of one.
44For her part, after the arrest of the accused, Mrs. Williams observed that there was a bicycle laying in the middle of the driveway of their neighbours across the street that she knew did not belong to their children, because those "children" were then 16, 18, and 20 years old and were driving cars, not bikes.
45Police Constable Warren Levack of the WPS also testified at trial. He assisted into the investigation of this matter. His evidence was that at 8:15 a.m. on October 10, 2015, he was dispatched to a call at 2764 Radisson Avenue because a theft had just occurred. Several other units were also dispatched. When P.C. Levack arrived on scene at 8:25 a.m., he observed that P.C. Lauzon was already on site and had the young male under control.
46P.C. Levack spoke with Mr. Williams, who drew his attention to a minor injury or abrasion on the "pointer finger" of Mr. Williams' right hand.
47P.C. Levack testified that as a result of his conversation with Mr. Williams and his investigation, he advised P.C. Lauzon of grounds to arrest the accused on the five counts before the court now.
48Subsequent to the arrest of the accused, P.C. Lauzon conducted a search incident to arrest of the person of the accused and P.C. Levack searched the backpack that he was wearing.
49P.C. Lauzon recovered a black-handled "Mac Tools" folding knife, which had a three-inch blade, from one of pockets of the hoodie that the accused was wearing.
50P.C. Levack searched the backpack and later transported the backpack and its contents to WPS headquarters where he photographed, itemized, and logged into property the contents of the backpack, which included:
a. a large amount of U.S. and Canadian cash, as well as Jamaican, Euros, and Hong Kong currency; b. in particular, there was $520 Jamaican dollars, €2 Euros, $2 Hong Kong dollars, $181.90 in Canadian currency, and $289.30 in U.S. currency; c. three empty T.D. Bank cash envelopes; d. three passport-size photographs of an unidentified male person (i.e., the passport photographs that Mr. Lin identified as having been taken of him some five or six years earlier); e. one LG Nexus cellphone; f. a watch; g. a micro SD card; h. a USB cable; and i. various other items as depicted in the photographs entered collectively as Exhibit No. 1 at trial.
51P.C. Levack also recovered a pair of wet black gloves from the ground near the accused, which Mr. Williams said the accused had been wearing during their struggle.
52P.C. Levack further received from Mrs. Williams a black-and-blue-and-silver-handled "Sheffield" folding knife, which had a three-inch blade, which Mrs. Williams identified to him as being the knife that the accused held during the struggle with her husband.
53Consistent with the evidence of Mrs. Williams, P.C. Levack also testified that he recovered a mountain bike laying on the ground in the driveway of 2759 Radisson Avenue (i.e., across the street from the subject property of 2764 Radisson Avenue). P.C. Levack said that he spoke with the owners of 2759 Radisson and they advised that the bicycle did not belong to them. P.C. Levack further testified that while he attempted to locate and identify the owner of the bike recovered on scene, he was not able to do so.
Fundamental Principles
54It is instructive to review the fundamental framework of analysis in a criminal trial.
55The presumption of innocence is the most fundamental principle of our Canadian criminal justice system. It is the fundamental right of every person accused of criminal misconduct to be presumed innocent until proven guilty by the evidence presented and established by the Crown. Accordingly, Mr. Asouth, as every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.
56The presumption of innocence is interwoven with the standard of proof required to displace that presumption. The standard of proof required of the Crown to secure a conviction in a criminal case is that it must establish each and every essential element of the offence against the accused by proof beyond a reasonable doubt.
57Much has been written on the meaning of "proof beyond a reasonable doubt." It sometimes seems that trial judges strive or struggle to express the same basic notion in different ways. For myself, I find it convenient and instructive to explain the concept by simply reciting the model jury charge suggested by the Supreme Court of Canada in its seminal decision in R v. Lifchus, as follows:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the court] satisfied [the court] beyond a reasonable doubt that the accused is guilty.
What does the expression "beyond a reasonable doubt" mean?
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if [the court] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the court] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the court] of the guilt of the accused beyond a reasonable doubt.
On the other hand, [the court] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, [the court is] sure that the accused committed the offence [the court] should convict since this demonstrates that [the court is] satisfied of his guilt beyond a reasonable doubt.1
Assessment of credibility
58Both Mr. Lall for the Crown and Mr. Telford-Keogh for the defence agree that where the court is presented with two competing versions of the critical events in question, and credibility is important, then central to the court's analysis of the case are the well-known principles in R. v. W.(D.).2 There, the Supreme Court of Canada held that the trier-of-fact should be instructed on the issue of credibility in accordance with the following three-step analysis:
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.3
59In my view, the commentary on the W.(D.) principles set out by Code J. in his decision in R. v. Thomas4 is of assistance. In that case, Code J. held:
… [W.(D.)] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2"). …
… A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.5
60That said, I well recognize that the determination of an accused's guilt or innocence must not devolve into a mere credibility contest between a complainant and the accused. Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution.
61Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness's evidence. A witness may be honest but wrong. I have considered these concepts in my assessment of the evidence.
62I instruct myself in accordance with these fundamental principles.
Application
63As indicated above, Mr. Asouth gave evidence at trial and offered his own version of events.
64Mr. Asouth maintained he never broke into the home at 212 Geraldine Crescent at any time and was never in attendance at that property.
65Mr. Asouth said that on Friday night, October 9, 2015, he received a text message from his friend "Ali," who was with another friend "Hassan," and they mentioned something about a house party that they wanted to go to that night.
66Mr. Asouth said he does not know the last name of his friend Ali. He said that when Ali introduced himself to Mr. Asouth, he used his first name only.
67Similarly, Mr. Asouth said he does not know the last name of his friend Hassan. Again, apparently Hassan introduced himself to Mr. Asouth using his first name only.
68Mr. Asouth said he met Ali and Hassan over the summer at "the club," that he (Mr. Asouth) had "a booth at 29," and that Ali and Hassan seemed like "cool people," and so they became friends.
69Mr. Asouth replied to Ali's text that Friday night, saying he was willing to go to the house party with them. So Ali came to pick him up in his car. Mr. Asouth said Ali picked him up in a black Mercedes Benz, "it was like a 2000 something, like close to … 1990, close to 2000, around there." Mr. Asouth had been in that car multiple times, "whenever me, him, and Ali would come together and hang out" – meaning Ali and Hassan, with Ali driving Ali's car and Hassan in the passenger seat.
70Mr. Asouth testified that Ali and Hassan came to pick him up around 9:00 or 10:00 p.m. that night, when the LCBO was about to close, and they rushed to get to the LCBO before it closed at 10:00 p.m. Ali purchased a 40 oz. bottle of "Cîroc" vodka for the house party.
71Mr. Asouth said they then travelled from the LCBO to the house party, which was "at Southwood Lakes, around Southwood Lakes" in South Windsor. The party was held at the home of a young lady named Melissa. Mr. Asouth did not know her last name.
72Mr. Asouth did not know the address of the house where the party was being held. He did not even know the name of the street where the house party was being held. Mr. Asouth believed it took about 20 or 30 minutes to get from the LCBO to the house party.
73In examination-in-chief, Mr. Asouth said he did not know the time when they arrived at the house party.
74Mr. Asouth said there was about 100 to 200 people at the house party.
75However, Mr. Asouth described that the party was in "three stages." He initially said in examination-in-chief that they were outside for two hours, inside for two hours, and upstairs – or at least he, Mr. Asouth, was – upstairs for two hours.
76In the first "stage" of the house party, Mr. Asouth said that he and Ali and Hassan were outside in the back yard of the house, where there was a bonfire, and they were drinking, passing the bottle of Cîroc amongst themselves. The bottle was contained in a backpack that Mr. Asouth believed belonged to Hassan. Mr. Asouth said that the three of them passed Hassan's backpack between themselves; they would take the bottle out of the backpack, take a shot from the bottle, and then put the bottle back in the backpack and pass it along.
77Then during the second stage of the party, Mr. Asouth said they moved inside the house and the three of them somewhat parted ways, with Mr. Asouth staying to play "Beer Pong" for some portion of the two hours. Mr. Asouth believed he played Beer Pong for about 30 minutes of the two hours, and then he circulated around the house, socializing with people.
78Then during the third stage of the party, Mr. Asouth said he went upstairs with "one of my girls" and had sexual intercourse with her. In cross-examination, he identified her as "Amanda"; he did not know her last name. Mr. Asouth testified that after that, he was sleeping and eventually Ali came and woke him up and said it was time to go home.
79He said that Ali, Hassan, and he then left the house party, and as they were driving through some residential development, Ali and Hassan were talking between themselves, asking each other, "should we put him on?" Mr. Asouth asked them what they were talking about, and he said they explained to him that a good way to make quick money is to go down a street, try to open each car door, and then if the door is unlocked, grab whatever you can from the car, and if you don't see anything, then just get out.
80Mr. Asouth said he agreed to do what they said.
81Further, the evidence of Mr. Asouth was that Ali and Hassan handed him Hassan's backpack at that time and told him, essentially, to deposit the proceeds of anything he might recover from the cars he entered into that backpack. Mr. Asouth said he took the backpack.
82Mr. Asouth also identified the black gloves in the photographs that were recovered by the WPS from the site of his arrest and confirmed that he was wearing those gloves at the time of his altercation with Mr. Williams. Mr. Asouth explained that around the same time that Hassan gave him the backpack, he was told by Ali to put the gloves on but, he said, he does not know why he was wearing them.
83Mr. Asouth testified that he got out of the Mercedes, was walking down the street by himself, rather nervously because it was his first time doing this, and he tried about three or four cars on the same side of the street before he came to a pickup truck parked in a driveway.
84Mr. Asouth said that while he was doing this, Ali and Hassan remained in the Mercedes, watching him, parked at the end of the street.
85Mr. Asouth said that he approached the driver's side door of a pickup truck parked in a driveway, tried to open the door and found that it was unlocked, and then entered the truck, putting his right knee onto the driver's seat and leaning into the cab, with his left leg on the ground. He said he opened up the console of the truck and saw a knife inside and took the knife. With the photographs of Exhibit No. 1 put to him, Mr. Asouth identified the knife as the black-and-blue-and-silver-handled "Sheffield" folding knife, which Mrs. Williams had identified as being the knife that Mr. Asouth had in his hand during his struggle with her husband.
86Mr. Asouth said that he was then confronted by Mr. Williams, that he stepped out of the cab of the truck, and that he turned to Mr. Williams and said to him, "my bad" and offered the knife to him.
87Mr. Asouth said Mr. Williams grabbed his wrists, pulled Mr. Asouth towards him, and threw him to the ground. Mr. Asouth said that Mr. Williams had his knee on his (Mr. Asouth's) back, and Mr. Asouth repeatedly told Mr. Williams that he could not breathe.
88Mr. Asouth testified that the whole time Mr. Williams was "slamming" him, he (Mr. Asouth) was holding the knife in his hand. He said it was in his hand the whole time. He denied that he was trying to open the knife. He denied that he ever took two swings at Mr. Williams.
89Mr. Asouth admitted in examination-in-chief that, other than the black-and-blue-and-silver-handled "Sheffield" folding knife that he had in his hand, he had another knife, a black-handled "Mac Tools" folding knife, in the pocket of his hoodie. Mr. Asouth said that he used that second knife to split open his cigars so that he could insert cannabis marijuana in his cigars. Mr. Asouth said he did this at the house party.
90If I believe the evidence of Mr. Asouth that he was never in attendance at the 212 Geraldine Crescent property, that the backpack was not his, and that he did not assault Mr. Williams, or if I am left with a reasonable doubt by it, then I must acquit.
91That said, however, I have serious concerns regarding the credibility of Mr. Asouth. In my view, the various explanations offered by Mr. Asouth are neither reasonable nor believable. His testimony is implausible and plagued by both external and internal inconsistencies.
92Mr. Asouth appeared to have great difficulty remembering certain basic facts. He could not give the last name of Ali. He could not give the last name of Hassan. He did, however, know that they were both 19 or 20 years old. That is, he knew their age but not their last names. These were friends who, apparently, Mr. Asouth felt close enough to that when they suggested he engage in criminal acts, he readily agreed. On his evidence, he put on the gloves they offered him without even knowing why he was doing it, other than they told him to do that. He was that close to these two friends, and yet he does not know either of their last names.
93Further, he said that he lost contact with both Ali and Hassan after the incident. Indeed, he said that he has had no contact with them in the year-and-a-half since the incident.
94Similarly, he did not know the last name of Melissa, who was hosting the house party. He could not say where the house party was located, other than at or around Southwood Lakes. He could not give an address. He could not even give the street name.
95Similarly, he did not know the last name of the young woman with whom he said he had sexual intercourse during the "third stage" of the house party. In examination-in-chief, he identified her simply as "one of his girls." In cross-examination, he said her name was Amanda but he did not know her last name, yet she was "one of his girls."
96Of the 100 to200 people who supposedly were in attendance at this house party at or around Southwood Lakes, Mr. Asouth could name only four people there that he knew (other than Ali and Hassan). He said he knew these four people from high school. When he was asked for the names of these people, he resisted answering and questioned the relevance of the question. That said, what I found even more telling was that in cross-examination when Mr. Asouth said that "everyone" at the house party saw them leave, Crown counsel then asked him whether his four high school friends saw them leave, and he said no, those four people did not see him leave.
97On the whole, Mr. Asouth's lack of memory on certain basic facts struck me as selective. It struck me that any time particulars were put to him that might confirm his story by external references, he could not remember.
98I found his description of the three "stages" of the house party to be curious, to say the least. He got that explanation out early in his testimony and he repeatedly referred to the various "stages" of the party. Leaving aside the fact that it might be thought a curious way to describe time spent at a party, it struck me that it was a deliberate attempt to apportion his time and account for his whereabouts at the time of the Geraldine Crescent incident. It struck me as a rehearsed explanation.
99Further, when it was initially offered, it was not even a complete explanation. That is, initially in his examination-in-chief, Mr. Asouth said that the first stage of the house party lasted two hours, the second stage was two hours, and the third stage (at least insofar as he was concerned) was also two hours. That amounts to a total of six hours at the house party. So then, if one assumes that he arrived at the house party some time shortly after the LCBO closed at 10:00 p.m., say, somewhere between 10:00 and 11:00 p.m., then the six hours of the three stages of the house party would have ended between 4:00 or 5:00 a.m. Saturday morning.
100However, Mr. Asouth's testimony subsequently evolved to the point that, on his account, he must have been at the party for longer than the six hours.
101Moreover, his testimony on when they arrived at the house party was internally inconsistent. In examination-in-chief, Mr. Asouth said that he, Ali, and Hassan went straight from the LCBO to the house party; he believed they arrived about 20 to 30 minutes after the LCBO closed at 10:00 p.m. But then when it was put to him in cross-examination that he went directly to the house party from the LCBO, Mr. Asouth said he did not remember. When Crown counsel put it to him that they went directly to the house party from the LCBO as he had said in examination-in-chief, Mr. Asouth said he did not know. Then Mr. Asouth changed his evidence and said they did not go straight to the party. Then Mr. Asouth said after they got the bottle of vodka at the LCBO, they were driving around and then arrived at the party in Southwood Lakes. When Crown counsel suggested that it was not a long time after 10:00 p.m. that they arrived at the party, Mr. Asouth then replied – after a considered pause – that they arrived some time between 11:30 p.m. and 12:00 midnight. That would be an hour-and-a-half to two hours after the LCBO closed, and not 20 to 30 minutes, as he first testified. I was left with the impression that Mr. Asouth's story was evolving as the examination unfolded.
102Another area that caused me to seriously question Mr. Asouth's credibility was his exchange with Crown counsel over the gloves that Ali and Hassan gave him. Mr. Asouth admitted that he was wearing gloves at the Radisson Avenue incident, although in fairness he could not remember if he was wearing only one or two gloves. Mr. Asouth testified that Ali and Hassan gave him the gloves at the same time that they handed him the backpack and gave him instructions on how to use the backpack in the commission of the break and enters. When he was asked why he put the glove or gloves on, Mr. Asouth said because Ali and Hassan recommended it. When it was put to Mr. Asouth that his understanding of why he should wear the gloves was so that fingerprints would not be left, Mr. Asouth said he did not know the reason why, other than they recommended it. He said he actually did not even know the reason why he was wearing gloves. He ended up saying that he did not know the reason why he was putting on gloves as he was breaking into cars, but he decided to put the gloves on simply because they told him to.
103In contrast to the serious concerns I have for the credibility of Mr. Asouth, I have no such concerns with Chris and Michelle Williams. Both Mr. and Mrs. Williams impressed me as very candid, sincere, and credible witnesses. They gave their evidence in a straight-forward and unvarnished manner, and they were not shaken on cross-examination.
104It is true that there are some discrepancies in their recollections of the incident at their home, in terms of what I will call the choreography of the struggle between Mr. Williams and Mr. Asouth, but those discrepancies were, in my view, relatively minor in nature.
105Mrs. Williams did not observe the accused throw any punches at her husband. But, on her own evidence, Mrs. Williams was not present for the entire altercation between her husband and the accused, and both Mr. and Mrs. Williams testified that one could not observe into the cab of the pickup truck because of the fogged windows, nor could one see happenings on the far side of the truck, i.e., on the driver's side, where the altercation took place.
106Both Mr. and Mrs. Williams testified that Mr. Williams left the house before his wife did. He was the first one to go out to shut the door to the truck. On Mrs. Williams' evidence, she remained inside the house making coffee. She did not know anything was wrong, nor did she exit the house, until she heard her husband yelling her name. But by that time, the altercation was already in progress.
107The evidence of Mr. Williams is that the accused took two swings at him as soon as Mr. Williams approached him. The evidence of Mr. Williams is not that he immediately called out to his wife. Rather, his evidence was that it was only after the accused threw the two punches and as he was struggling with the accused that he called out to his wife.
108In short, the evidence is clear that Mrs. Williams did not witness the entire altercation between her husband and the accused.
109In sum, given my serious concerns regarding the credibility of the accused, I reject his version of the events in question unless it is corroborated by other evidence.
110Taking into account all the evidence, I accept as credible the complainant evidence of Mr. and Mrs. Williams generally and, specifically, as to the accused's assaults upon Mr. Williams.
111I make these findings of credibility beyond a reasonable doubt.
112Moreover, I make these findings of credibility even apart from the adverse inference that the Crown asks the court to draw because of what it takes to be the failure of the defence to alert the Crown to the alibi defence put forth by the defence. In my view, given the conclusions I have reached, including in particular the conclusions I have reached on the credibility of the accused, it is not necessary to determine the issue concerning notice of the alibi defence.
Analysis
Possession of Property Obtained by Crime
113In count no. 3 of the indictment, Mr. Asouth is charged that "on or about the 10th day of October, 2015, at the City of Windsor, … did possess property, namely money, TD envelopes, Nexus LG Phone, Passport Photos of a value not exceeding $5,000, the property of a Yu Lin, knowing that all or part of the said property had been obtained by an offence punishable by indictment," contrary to s. 354(1) of the Criminal Code.6
114In order to find Mr. Asouth guilty of possession of property obtained by crime, the Crown must prove each of the following essential elements beyond a reasonable doubt:
a. that Mr. Asouth was in possession of property; b. that the property was obtained by the commission of a criminal offence; and c. that Mr. Asouth knew that the property had been obtained by crime.
115In my view, the Crown has proven all essential elements beyond a reasonable doubt.
116I accept the evidence of Mr. Nick Lin that there were items of property contained in the backpack recovered from the accused upon his arrest that belonged to Mr. Lin, namely, the passport photographs of Mr. Lin, a sum of Canadian and U.S. currency, the T.D. Bank envelope that the money was stored in, and his "Nexus 4" Android smartphone.
117There can be no doubt but that the passport photographs belonged to Mr. Lin, and in fairness defence counsel does not argue otherwise.
118The evidence of Mr. Lin, which I accept, is that he had a mixture of about $400 to $500 in mixed Canadian and U.S. currency, stored in a T.D. Bank envelope, which he kept in his dresser drawer in his bedroom in the basement. The evidence of P.C. Levack is that the backpack recovered from the accused contained, among other things, $181.90 in Canadian currency, and $289.30 in U.S. currency. Those amounts are consistent with Mr. Lin's evidence.
119I also accept the evidence of Mr. Lin that the Nexus smartphone found in the backpack was the same Nexus 4 phone that belonged to him, which he left on his bed in the bedroom, and which was no longer there when Mr. Lin returned to Windsor. Mr. Lin identified the phone from the photograph that the police texted to him in the course of their investigation, and again from the same photograph when he gave his testimony before this court.
120Mr. Lin gave no consent to anyone to have his property taken. It was taken by theft through a break and enter into Mr. Xue's residential home on Geraldine Crescent.
121For the reasons explained above concerning the lack of credibility of the accused, I do not believe the testimony of Mr. Asouth that he was never in attendance at the Geraldine home, nor am I left with any reasonable doubt as to any of the essential elements. On the contrary, as explained below, I find that Mr. Asouth broke and entered the Geraldine home and in the course of that break and enter, he stole the property of Mr. Lin that I have identified, knowing that it did not belong to him.
122On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Asouth on the charge of possession of stolen property.
Break and Enter
123In count no. 4 of the indictment, Mr. Asouth is charged that "on or about the 10th day of October, 2015, at the City of Windsor, … did break and enter a place, namely a dwelling-house situated at 212 Geraldine, with intent to commit an indictable offence therein," contrary to s. 348(1)(a) of the Criminal Code.
124In order to find Mr. Asouth guilty of breaking and entering with intent, the Crown must prove the following essential elements beyond a reasonable doubt:
a. that Mr. Asouth broke into the residential home at 212 Geraldine Crescent; b. that Mr. Asouth entered that home; and c. that Mr. Asouth intended to commit an offence in that home.
125In my view, the Crown has proven all essential elements beyond a reasonable doubt.
126I am satisfied that the Crown has established that the break and enter incident at 212 Geraldine occurred at about 5:00 a.m. that Saturday morning. The evidence of Mr. Xue, which was given in a straightforward and fair manner, and which I accept, is that he was woken up by his wife at about 5:00 a.m. Mr. Xue testified that he heard some noise downstairs. He was very fair in his evidence. Mr. Xue readily admitted that whatever was the noise he heard, he could not say he was 100% certain that it was a person. He said it was not the noise of someone running out of the house. Initially in his examination-in-chief, he described the noise as a "squeezy wood noise" that was like the noise made when someone walks over the wooden floorboards in his house. In re-examination by the Crown, Mr. Xue said that at no other time has he heard that "squeezy noise" except when a person was walking over the wooden floor.
127Mr. Xue then went downstairs to investigate and found the doors open to his home. He later spoke with his cousin and it was discovered that some of the property of Mr. Lin was missing, along with Mr. Xue's laptop computer.
128In my view, on the basis of logic, common sense, and experience, it is a reasonable inference on the totality of the evidence here to conclude that the break and enter took place at approximately 5:00 a.m. that morning.
129I therefore also find that three hours later the backpack was recovered from Mr. Asouth at about 8:00 a.m. at 2764 Radisson Avenue, which the evidence indicates is some 1,600 metres away from the Geraldine home. I have found that the backpack contained property that was obtained by commission of a crime. The defence does not argue that the stolen passport photographs of Mr. Lin were taken from some other location other than the Geraldine home.
130The Crown relies on the doctrine of recent possession. In my view, that position is well-founded having regard for the three-hour proximity in time between the incident at the Geraldine home and the subsequent incident and arrest at the Radisson home, as well as the proximity in location, the Radisson home being, again, some 1,600 metres away from the Geraldine home.
131Both counsel agree that the leading authority on the doctrine of recent possession remains the decision of the Supreme Court of Canada in R. v. Kowlyk, where McIntyre J., writing for the majority of the Court, explained the doctrine in the following terms:
On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.7
132It is common ground that the inference can be negatived by a reasonable explanation. In my view, in the instant case, the accused says he did not know that the stolen items were in the backpack. For the reasons explained above, I simply do not believe the accused's story that he was at some house party that night. His evidence is not credible and his story is not believable.
133Again, I reject the explanation offered by the accused, and I am not left with a reasonable doubt as to any essential element of the offence. On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that the accused committed the offence of break and enter with intent.
Possession of Break-In Instruments
134In count no. 5 of the indictment, Mr. Asouth is charged that "on or about the 10th day of October, 2015, at the City of Windsor, … did, without lawful excuse, possess instruments, namely a knife and gloves, suitable for the purpose of breaking into a motor vehicle, under circumstances that gave rise to a reasonable inference that the said instruments possessed had been used for such purpose," contrary to s. 351(1) of the Criminal Code.
135In order to find Mr. Asouth guilty of possession of break-in instruments, the Crown must prove the following essential elements beyond a reasonable doubt:
a. that Mr. Asouth was in possession of the specified instruments, namely, the knife and gloves; b. that the knife and gloves are suitable instruments for the purposes of breaking into a motor vehicle; and c. that Mr. Asouth intended to use the instruments for purpose of breaking into a motor vehicle.
136I find that the Crown has proven all essential elements beyond a reasonable doubt.
137It is common ground that Mr. Asouth was in possession of the gloves that, he says, had been given to him by Ali and Hassan, as well as two folding knives. Mr. Asouth himself admits that at the time of his altercation with Mr. Williams following his breaking into the pickup truck, he was actually wearing at least one of the gloves.
138I agree with the submission of Crown counsel that the Crown does not have to prove that the instruments would have helped, or were actually used by, the person to commit the offence of breaking into a motor vehicle. It is sufficient to establish that the instruments are suitable for the purpose of breaking into a motor vehicle.
139In my view, it cannot be seriously disputed that, as a matter of common sense and experience, gloves and a knife are instruments that are suitable for the purpose of breaking into a car.
140However, the more significant question in the instant case is whether the third element is met here, that is, whether the circumstances give rise to a reasonable inference that the said instruments possessed had been used for such purpose.
141In my view, that third element is not met in respect of the possession of the knife or knives. There is no evidence that either knife in Mr. Asouth's possession had been used to break into the pickup. There was no evidence of any knife marks around the doors or windows of the truck. There was no evidence that Mr. Asouth intended to use a knife for that purpose. Indeed, the circumstances of the instant case suggest that Mr. Asouth was looking for easy entry cars, that is, vehicles whose doors were unlocked.
142That said, the third element is satisfied here in respect of the possession of the gloves. On Mr. Asouth's own evidence, he was wearing at least one glove when he was in the pickup. In my view, the exchange with Crown counsel during Mr. Asouth's cross-examination was telling. In my view, there was no other reasonable explanation for Mr. Asouth to be wearing the gloves except to ensure that he did not leave fingerprints. Even on the evidence of Mr. Asouth, Ali and Hassan handed him the gloves at the same time that they gave him the backpack to store the proceeds of his crime; on Mr. Asouth's own evidence, he was being given the "tools of the trade" that he would assist him in break into vehicles.
143Again, I am not left with a reasonable doubt as to any essential element of the offence. On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that the accused committed the offence of possession of break-in instruments.
Common Assault
144In count no. 1 of the indictment, Mr. Asouth is charged that "on or about the 10th day of October, 2015, at the City of Windsor, … did commit an assault on Christian Williams," contrary to s. 266 of the Criminal Code.
145In order to find Mr. Asouth guilty of assault, the Crown must prove each of the following essential elements beyond a reasonable doubt:
a. that Mr. Asouth intentionally applied force to Mr. Williams; b. that Mr. Williams did not consent to the force that Mr. Asouth applied; and c. that Mr. Asouth knew that Mr. Williams did not consent to the force that Mr. Asouth applied.
146I find that the Crown has proven all essential elements beyond a reasonable doubt.
147For the reasons that I have already explained above regarding credibility of the accused and Mr. and Mrs. Williams, I do not believe the evidence of the accused and I accept the evidence of Mr. and Mrs. Williams. Accepting the evidence of Chris Williams, the essential elements of assault are made out. When Mr. Williams approached the accused, he threw two punches at Mr. Williams, and the first swing grazed him on his left temple. A struggle ensued, in the course of which Mr. Williams received an abrasion to the "pointer finger" of Mr. Williams' right hand. It goes without saying that Mr. Williams did not consent to the application of that force.
Assault with a Weapon
148In count no. 2 of the indictment, Mr. Asouth is charged that "on or about the 10th day of October, 2015, at the City of Windsor, … did in committing an assault on Christian Williams, use a weapon, namely a knife," contrary to s. 267(a) of the Criminal Code.
149In order to find Mr. Asouth guilty of assault with a weapon, the Crown must prove beyond a reasonable doubt not only the same three essential elements of assault under s. 266 but also that a weapon was involved in Mr. Asouth's assault of Mr. Williams.
150I find that the Crown has proven all essential elements beyond a reasonable doubt.
151On his own evidence, Mr. Asouth was holding a knife during the entire struggle with Mr. Williams. He had it in his hand. It is intimidating to encounter a stranger who is holding on to a knife and engaging in a struggle with him.
152Further, the evidence of both Mr. and Mrs. Williams was that as Mr. Williams was struggling with Mr. Asouth on the ground, Mr. Asouth was fumbling with the knife in a manner that was reasonably interpreted as trying to open the folded blade. Mrs. Williams was obviously concerned for her husband: she yelled to him, "he's got a knife" and again when she ran across the street to their neighbour, pounding on the door hysterically, she told Mike that the man had a knife. It was clearly a frightening and intimidating situation.
153All of the parties are fortunate that there was not a different outcome.
154I am not left with a reasonable doubt as to any essential element of the offence. On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that the accused committed the offence of assault with a weapon.
Conclusion
155In sum, for the above reasons, and after having reviewed all of the evidence, I make the following findings:
a. I do not believe Mr. Asouth's various assertions that he was never in attendance at 212 Geraldine Crescent, that he never broke and entered into that home, that the bag containing property stolen from that home did not belong to him, that he did not assault Mr. Williams, and that the knife was not involved in the assault, etc. b. I am not left with a reasonable doubt by the evidence of Mr. Asouth as to any essential element of the offences alleged against him; and c. on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Asouth on the charges of common assault, assault with a weapon, possession of stolen property, break and enter with intent, and possession of break-in instruments.
156Accordingly, I find Mandella John Aru Asouth guilty of:
a. committing common assault on Mr. Christian Williams on October 10, 2015, contrary to s. 266 of the Criminal Code; b. committing an assault of Mr. Christian Williams on October 10, 2015, with a weapon, namely, a knife, contrary to s. 267(a) of the Code; c. possession of property of a value not exceeding $5,000, knowing that all or part of the said property had been obtained by crime, contrary to s. 354(1) of the Code; d. breaking and entering the residential home situated at 212 Geraldine Crescent, Windsor, Ontario, with intent to commit an indictable offence therein, contrary to s. 348(1)(a) of the Code; and e. possessing certain instruments, namely, gloves, suitable for the purpose of breaking into a motor vehicle, contrary to s. 351(1) of the Code.
"original signed and released orally by Justice J.Paul R. Howard"
J. Paul R. Howard
Justice
Delivered Orally: September 22, 2017
Footnotes
- R v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39.
- R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.
- Ibid. at para. 28.
- R. v. Thomas, 2012 ONSC 6653 (S.C.J.).
- Ibid. at paras. 23-24.
- Criminal Code, R.S.C. 1985, c. C-46.
- R. v. Kowlyk, 1988 50 (SCC), [1988] 2 S.C.R. 59, at p. 71g.