Court File and Parties

COURT FILE NUMBER: 15-R2032 DATE: 2018/07/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TYLER BRAZEAU

Counsel: A. Kortenaar, Lawyer for the Crown N. Calvinho, Lawyer for the Defendant

Reasons for Decision

P. E. Roger

[1]

Reasons for Decision

The accused is charged with three counts surrounding events that occurred in Ottawa on July 1, 2015. It is alleged that he committed an aggravated assault, a robbery, and a break and enter. The issue in this trial is identity.

2Ten witnesses testified, including the accused and an alibi witness. The evidence comprises real and circumstantial evidence and is highly conflicting.

Introduction

[3]

Introduction

The victim has no recollection of the events that occurred on the day of the crime.

4Two other individuals, Jean-Philippe Lengelo Lusambi and Bienvenue Ciza, were arrested for these same events and pled guilty to similar charges. They both exercised their right to silence regarding the identity and role of other participants.

5It is admitted that, under section 655 of the Criminal Code, Jean-Philippe Lengelo Lusambi and Bienvenue Ciza were two of the perpetrators of the break and enter, aggravated assault, and robbery on July 1, 2015. It is admitted that at least one other individual attended at the victim’s residence; whether the accused is that individual is the issue in this trial. It is admitted that:

• On July 1, 2015, at approximately 12:14 in the afternoon, at least three individuals forced their way inside the victim’s apartment.
• Fingerprints found on a clear mason jar in the victim’s apartment are from the accused.
• The victim was a paraplegic, low level drug dealer. His apartment was equipped with a security system which, unknown to the perpetrators, transmitted a panic alarm at 12:15 in the afternoon.
• The victim’s apartment was searched for drugs and money, and small amounts were stolen.
• The victim was assaulted and suffered serious injuries. He was transported to The Ottawa Hospital, where he was in critical, life-threatening condition. The victim was in a medically induced coma from July 1 to 7, 2015. He remained in the intensive care unit until July 13, was then moved to the trauma unit until July 20, and he was admitted to the Brain Injury Rehabilitation Centre until August 20, 2015.
• The victim’s injuries amount to an endangerment of life within the definition of aggravated assault in the Criminal Code.

6In the course of their investigation, a police officer contacted the accused on July 7, 2015, and scheduled an interview the next day at the Ottawa Police station. Accordingly, on July 8, the accused met with this police officer. The accused was informed that the victim had been seriously injured and that the accused was a person of interest because his name came out during the investigation. The police did not want to share their evidence and did not tell the accused that his fingerprints had been found on a drug jar at the scene. The accused said that he did not know the victim and that he had never been to the victim’s apartment. Thereafter, the accused’s cellular telephone records were obtained and they revealed that the accused had been in contact with two of the suspects. On August 19, 2015, the police arrested the accused. The accused was again interviewed and again said that he did not know the victim and that he had never been to the victim’s apartment.

Issues

[7]

Issues

The core issue of this trial is identity: is the accused one of the perpetrators?

Background Facts

[8]

Background Facts

The accused testified. He admitted that he lied during both police interviews when he said that he did not know the victim and that he had not been to the victim’s apartment. He explained that he did not want to snitch on a drug dealer because this could be dangerous. However, he stated that he was truthful with the police when he described his activities on July 1, that he had no nickname, and that his friends were nonviolent.

9On July 1, 2015, the police responded to a home security alarm and arrived at the victim’s apartment at about 12:45 in the afternoon. The victim was found unconscious and his apartment had been ransacked. The victim’s wheelchair was lying on its side behind the front door.

10The victim is paraplegic and, at the time of these events, he had been a low level drug dealer (marijuana and cocaine) for about three years. He does not remember anything of July 1, 2015. The evening before, he had entertained neighbours on his rear balcony until about 3:30 in the morning. His next memory is of waking up at the hospital on July 8, 2015.

11The victim’s apartment was equipped with a security system that monitored the opening and closing of both his front and back (patio) doors. He believes that the following items were taken from his apartment: three cellular telephones; a security system tablet; $250.00 in cash; and approximately 4 ounces of marijuana.

12The victim claims that his current memory is the same as before. He explained that when he was discharged from the hospital he had returned to baseline, but that it took about one year to regain his memory. He claims that although he might forget a name, he never forgets a face.

13He explained that he was in a lot of pain, was on medication with headaches, and was still confused on July 8, 2015, when he was interviewed by the police at the hospital shortly after he awoke from the medically-induced coma.

[14] On September 4, 2015, he was interviewed again by the police and shown photographs. It is admitted that the photographs were taken by the police in August 2015 of the following people:

• Jean-Philippe Lengelo-Lusambi;
• Samuel Ciza;
• Bienvenue Ciza;
• Tyler Brazeau.

15On September 4, 2015, the victim indicated to the police that he recognized the first photo as FLO. He explained that FLO had never been in his apartment. He identified the second photo as Dave, and stated that Dave had never been in his apartment. He was then uncertain whether or not the third photo was actually Dave. In his statement to the police he indicated: “I assume the last one’s Tyler Brazeau. I’ve never seen this guy before”. He indicated that the accused had never been in his apartment.

16At trial, the victim explained that the first three individuals listed above were the gatekeepers of a path near his apartment. In-chief he said that they were selling drugs, loitering, and harassing people going through that path and that about one month before the incident they seemed to come more frequently into the area. He testified that he saw FLO, Dave, and Bienvenue (not the accused) a few times on the path and that he sold marijuana once to Dave, on June 14, 2015. He indicated that he then spoke to Dave and that he also saw him on another occasion near his apartment. He indicated that he also spoke with Bienvenue on the path. In-chief, he explained that there was something off with FLO. He said that after June 14, he avoided FLO and his friends whenever he saw them. He indicated that he had never seen Tyler Brazeau before, that he did not recognize him from anywhere, and that Mr. Brazeau had never been to his apartment.

17At trial, the victim explained that his neighbours were his clients, that he sold drugs only to people he knew, to his friends. He explained that only his friends were allowed into his apartment, not all his clients.

18At trial, he indicated that he washed his marijuana jars about once a week, generally when he received a new supply of marijuana. He stated that he had a clear recollection of washing his marijuana jar at least 20 times in the months before these events. He also explained that he would handle his marijuana jars about once a day and that they never left his apartment.

19The victim kept a book in which he recorded his drug transactions. Prior to these events, he had removed pages at the front of this book and his transaction book starts April 10/12, 2015, and ends on June 28, 2015. He believes that he recorded, during that period, all of his drug sales in that book, usually shortly after each sale. During his testimony in-chief, the victim identified most of the persons noted in this book.

20One of the entries in this book is “TYBO”. It appears three times: on May 29, for $25 of marijuana; on June 6, for $20 of marijuana; and on June 25, for $20 of marijuana. A key issue is the identity of “TYBO”, and whether he is the accused, Tyler Brazeau.

21At trial, the victim stated for the first time that TYBO is actually Andrew, the brother of a friend who lived across the street named Tyler Desrosier; that it stands for Tyler’s brother. [Tyler Desrosier is white and a friend of the victim; he was one of about three neighbours present at the victim’s gathering until the early morning hours of July 1, 2015.]

22Other important entries in the victim’s drug book are those of Dave and FLO. Dave appears on May 23 with another person named Fallout for $190 of marijuana and FLO appears on June 14 for $25 of marijuana. At trial, the victim stated that the first and only time that he sold marijuana to FLO and Dave was on June 14, 2015. He said that he actually sold to Dave but that for some reason he made the entry under the name of FLO. The victim could not identify who Fallout or Dave were in his drug book, appearing under the entry made on May 23, 2015.

23The accused testified. He indicated that he knows Jean-Philippe, Sam, and Bienvenue. He said that he met Bienvenue in grade seven and that they became good friends. They drank and consumed marijuana together. Sam is Bienvenue’s brother, and he became a friend, but not as close. He met Jean-Philippe through Bienvenue. He stated that he would see Bienvenue about three times a week, maybe more.

24The accused indicated that he knew the victim. He said that he occasionally hung around the path near the victim’s apartment with his friends, Bienvenue, Sam, and Jean-Philippe, and that he then met the victim. He said that he met the victim probably around April 2015; he indicated that he recalled seeing the victim on the path. He said that he and his friends were smoking cannabis in the path and that FLO bought pot from the victim that day. He explained that FLO and Bienvenue wanted to start selling pot and wanted to buy a large quantity. He said that the victim came back with a bag containing weed that FLO bought. He said that he did not purchase any at that time and that this was the first time he met the victim. He said that at the time he did not know where the victim lived.

25The accused’s evidence was not at all clear, but he thought that during the month of May he saw the victim go to a house that he assumed was the victim’s house. He said that he ran to the victim and introduced himself, stating that he wanted to buy some weed. He could not remember why he was there that day with Bienvenue and FLO. He said that he had seen the victim on the path a couple of days before his birthday (the accused’s birthday is on May 30). He later said that he went to the victim’s door and knocked. He said that the victim was nervous at first but that he told him about his friends and that the victim was then okay. He said that the second time was not in the park, that he saw him go by and ran up to him and told him that he wanted to buy some weed. He asked if he remembered him, explained that he was with the other boys in the path, and said that he wanted to buy some cannabis before his birthday. The accused said that they went inside the victim’s apartment. He said that he took off his shoes and went to the dining room. He said that the victim had weed in plastic bags and that the accused bought about $20 worth. He said that he introduced himself as Ty Brazeau. He said that he was not long in the victim’s apartment, and that the pot was on a table in the dining/kitchen area. He said that he looked at the pot because he wanted a special kind, with a different buzz. He remembered that it was quick but that they had a conversation and that the weed was in little baggies inside the jar. He said he was pretty sure that there were two jars. He said that he touched the jar, that he probably picked it up, but he did not remember how he picked it up.

26He was not clear when he first purchased marijuana from the victim. He indicated that he was not certain, between April and July. He said he was not certain but indicated that it was near his birthday. He said that that the second time that he purchased must have been after his birthday, a few weeks after the first time that he purchased. He did not remember, needed a moment, and finally said, “I don’t know, after my birthday and before Canada Day.” He explained that he was in the neighbourhood again and that he’s pretty certain that he saw the victim outside while he was with the boys. He said that he approached him to buy pot and that he went into his apartment again (however, he stated that it is not clear in his recollection). He explained that he always checked his cannabis. He said they had a conversation at his door. He said that he touched the jar to check the weed. He thought that it was close to Canada Day, a few days before, and indicated that he was in and out basically. He was vague on details concerning the victim and his apartment, uncertain how often he had bought marijuana from the victim, but stated not on more than four occasions. He did not remember purchasing from the victim again and stated that he did not thereafter go back to victim’s apartment.

27The accused’s evidence at trial was not clear regarding what he did the evening and night immediately preceding July 1, 2015. He was also not clear about when he went to bed the morning of July 1, and when he got up on July 1; he did not remember. The accused was 22 at the time and lived with his mother and 11-year-old sister, in a small third floor apartment of a low rise building in Ottawa. He explained that his mother had a lady friend visiting with her at some point during that morning, that his mother made him coffee, and that she and his sister wished him a happy Canada Day just before they left for their activities that day. He said that he was then still sleeping in the living room and that it was dark outside when he later woke up for the day.

28The accused’s mother testified and provided an alibi for her son. She testified that the accused worked the night before these events and that he was sleeping when she got up at about 9:30 in the morning, on July 1, 2015. She remembered her son getting up at some point later that morning to use the washroom and to ask her for a cup of coffee, although she contradicted herself about when this happened. Although she did not otherwise see him, as he was sleeping in his bedroom in the living room, she testified that she could hear him and that she therefore knows that he was present. She remembered that at some point that morning, he was searching for his cellular phone and she explained that she then called his cellular number to help him find his phone. She was not certain when this happened, but indicated possibly around 11:30 that morning. She described a brief telephone conversation with her son when he found his cellular phone. In addition, she stated that just before leaving with her daughter, at about 13:30 that afternoon, she said goodbye and wished him a happy Canada Day; she said that the accused was still half lying on the couch and that he wished them a good day as well.

29The accused was arrested on August 19, 2015. His mother said that on August 20, she told the responsible detective that it was “impossible”. She indicated that she might have said “because her son was home”, but stated that it was a blur. At the bail hearing of January 11, 2016, she described this alibi to the Court. She was then uncertain whether she had earlier told the responsible detective that it was impossible or that it was impossible because her son was home - at trial she was certain that she had then told the detective that it was impossible.

30The responsible detective testified in reply. She said that she had no note and no recollection of the mother telling her, during their two brief telephone conversations on August 19 and 20, 2015, that it was impossible or that it was impossible because her son was home. The detective admitted that she might possibly not recall if the mother only said, “it’s impossible.” However, she said that if the mother had said, “it’s impossible because he was home or with me,” then she would have followed up earlier than she did (which was after the bail hearing).

31As indicated above, the fingerprints on the drug jar found at the victim’s apartment are admitted to be from the accused. The question is when were they left on that jar? Two experts testified in that regard.

32The Crown called a retired police sergeant, who worked this case with the identification unit of the Ottawa Police. He testified that as a police officer, he understood that fingerprints are fragile, and that he learned with experience how to lift and transport fingerprints without destroying them in the process. He explained that fingerprints on nonporous surfaces can be wiped off by handling or washing.

33The defence called a retired civilian member of the Peel Regional Police, who worked with fingerprints. He testified that the fragility of fingerprints on nonporous surfaces depends on the composition of the print (the matrix) and on the surface on which they are left (the substrate). He said that at one end of the spectrum prints can be extremely fragile, to not fragile at the other end. He explained, for example, that if their matrix is eccrine sweat then such prints are probably the most fragile, while those from sebaceous and apocrine sweat are slightly less fragile. He referred to an article where experiments showed that prints from dirty fingers would last longer. He also explained that very few police officers would ever develop the matrix of a print unless it was otherwise required, and that here, as is typically the case, we do not know the matrix of the prints. He stated that the composition of the accused’s prints is therefore an educated guess. He agreed that a fingerprint may be fragile and that it will be wiped off if it is touched with enough force on the same spot as another print. He agreed as well that washing the jar would wipe out the prints. However, he explained that if the jar was not washed and was handled by many people, then the fragility of the prints on the jar would depend on the matrix of each print and also on the substrate (the surface of the jar and whether it was dirty). He stated that here there are too many unknowns.

34The Crown also called a representative of the accused’s telephone carrier. She testified as a factual witness about the accused’s telephone and text messages. The accused’s telephone records produced at trial cover the period from June 24 to July 1, 2015. The carrier’s representative explained that the records produced do not indicate the cell site used for text messages, only for voice calls. She indicated that a call or a message is transmitted by the cell site with the strongest signal. She explained that this is usually the closest cell site but that this is subject to exceptions, including: obstructions (such as from a building), inclement weather (such as rain), or heavy traffic that could temporarily overload a cell site. She indicated that during this period of eight days, the accused’s voice calls were all transmitted via the closest cell site to his residence with the exception that on the morning of July 1, on two occasions, voice calls were transmitted via the cell site closest to his friend, Bienvenue.

Positions of the Parties

[35]

Positions of the Parties

The Crown argues that the victim has no motive to lie, that he did not recognize the accused, and that he should be believed when he states that the accused had never been in his apartment prior to July 1, 2015. The Crown argues that the victim has no reason to dislike the accused and that one would have expected him to remember the accused if he had sold marijuana to the accused on two to four occasions, as described by the accused. The Crown also argues that the victim’s evidence is generally reliable because he correctly identified two of the suspected perpetrators.

36The victim could not initially remember who TYBO was and the Crown explains this by arguing that it’s more difficult to remember nicknames. The Crown also argues that the victim’s interview of July 8, 2015, should be ignored because he had just woken up and was medicated.

37The Crown points out that the accused is a self-admitted and very capable liar with no evidence (although it points out that the onus is always on the Crown) to corroborate his version of events, particularly that his text messages and those of his mother were not produced. It also argues that the cell site evidence contradict his and his mother’s version of events and that the accused’s lying to the police on July 8 and August 19 is post-offence conduct that is indicative of guilt.

38The Crown argues that a finding of guilt is the only reasonable inference that can be drawn from the circumstantial evidence.

39The defence argues that on July 1, 2015, the victim let the perpetrators in his apartment via the front door, which the defence says contradicts the victim’s evidence that he would not have let FLO and his friends into his apartment, and thereby supports the accused’s version of events.

40The defence argues that it is not known whether the cell phone records are complete and further that on these two occasions on July 1, 2015, when the strongest cell site was another cell site (one closer to Bienvenue and the victim) that this occurred for reasons other than the accused not then being at his home, as he and his mother claim.

41The defence argues that not all fingerprints are fragile and that we do not know if the accused’s fingerprints were fragile, because the matrix and part of the substrate are unknown. Therefore, the defence says that the accused’s fingerprints could have been left during one of the earlier marijuana transactions that the accused says occurred at the victim’s apartment.

42The defence argues that the accused convincingly explained why he lied to the police on July 8 and August 19, 2015, and that TYBO is the accused. In this regard, the defence argues that the victim assumes that the police arrested the right people and that the victim wants the accused to go to jail for this very terrible thing that was done to him; that the victim’s explanations about the identity of TYBO and about how often he washed the drug jar are not credible.

General and Specific Legal Principles

[43]

General and Specific Legal Principles

An accused is presumed to be innocent and the burden of proving his or her guilt beyond a reasonable doubt is always on the Crown; this is a heavy onus.

44Proof beyond a reasonable doubt is a fundamental principle of our justice system. As indicated by the Supreme Court of Canada, proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible. On the other hand, it is not enough for the Crown to prove that the accused is probably guilty; probable or likely guilt is not proof beyond a reasonable doubt (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 231).

45To be convinced beyond a reasonable doubt means to be certain that an offence has been made out before convicting someone of the offence (R. v. Lifchus, [1997] 3 S.C.R. 320). A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.

46The assessment of the credibility and reliability of key witnesses is crucial in determining whether the Crown has met its onus of proving the guilt of the accused beyond a reasonable doubt.

47Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony. Both require a careful assessment (see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at paras. 41-44; see also R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); and R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.)). A witness may believe his or her evidence to be true yet that evidence may not be reliable.

48Demeanour evidence alone is a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses.” Demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence (see R. v. Norman, at para. 55). A most valuable method of assessing witnesses is to consider the consistency of what they have said on a material matter.

49The accused testified and called evidence. In R. v. W.(D)., and cases that followed, the Supreme Court of Canada set out the manner in which a court is to consider testimony from an accused person and other exculpatory conflicting accounts. First, you ask whether you believe the accused (obviously on a material point—or the exculpatory conflicting account, in this case the alibi) and if you do, you must acquit. Second, if you disbelieve the accused (or the exculpatory conflicting account, in this case the alibi), you must still ask whether this evidence nonetheless leaves you with a reasonable doubt about the guilt of the accused, and if it does you must acquit. Finally, even if the accused’s evidence or the exculpatory conflicting account does not leave you with a reasonable doubt, you must still consider whether the totality of the evidence has proven guilt beyond a reasonable doubt (see R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 11).

50As indicated above, the rule of reasonable doubt applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence (such as from the accused or from an alibi witness) or even arising out of evidence favourable to the defence in the Crown’s case. In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt” (see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114).

51Indeed, proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflict in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (R. v. Nimchuk (1977), 33 C.C.C. (2d) 209, at para. 7 (Ont. C.A.)).

52Consequently, a reasonable doubt can arise from evidence that the court ultimately does not accept. For example, in R. v. Danks (1994), 22 W.C.B. (2d) 487, at para. 8 (Ont. C.A.), even if the evidence relating to the alibi was ultimately not accepted, this evidence could nonetheless leave the court with a reasonable doubt: “if you do not accept that evidence but you also do not reject it so that you have a reasonable doubt whether that evidence is true then clearly you would have a reasonable doubt about whether Mr. Danks was the shooter and you would be required to acquit Mr. Danks.”

53Conversely, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute a sufficient explanation for the rejection of the evidence of an accused (see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23).

54When considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony.

55With regards to fingerprint evidence, in R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), the Court of Appeal reviewed a conviction for offences arising out of a home invasion robbery where the only evidence connecting the accused to the robbery was his fingerprints on a pizza box that was used as part of a ruse to gain entry to the victim’s apartment. In that case, the accused did not testify and did not call any evidence. The officer, providing opinion evidence about the fingerprints, testified that the print on the box matched the accused though he could not date the fingerprint or provide any evidence as to when the print was placed on the pizza box. He acknowledged that depending on environmental factors, a fingerprint could remain on a surface like a pizza box for years. This is different from the circumstances of this case where the accused testified and called evidence, where the prints were found on a glass jar, and where other facts connect the accused to the victim.

56The Court of Appeal indicates that the probative value of fingerprint evidence depends on the totality of the evidence; whether the entirety of the evidence reasonably permits an inference that the accused touched the object in connection with the crime and not at some other time or place. It indicated:

Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.

57In that case, the Court of Appeal concluded that the evidence did not reasonably permit the conclusion that the accused had placed his fingerprint on the pizza box at the time of the robbery because there was no evidence that assisted as to when the fingerprint had been placed on the pig pizza box. It stated: “…the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.” The Crown in that case argued that the judge was entitled to draw the inference that the fingerprint was placed on the pizza box in connection with the robbery because there was no other reasonable explanation advanced by the defence. The Court of Appeal indicated that the onus is always on the Crown, and that if the Crown’s evidence could support the conclusion that the print was put on the box in connection with the robbery, then the absence of any innocent explanation could have made it easier for the trial judge to draw an inference of guilt. However, it stated that if the Crown’s case could not reasonably support a conclusion that the print was placed on the pizza box in connection with the robbery, then the failure of the accused to offer any other explanation is of no consequence because an accused failure to testify or otherwise advance an explanation cannot add weight to the Crown’s case.

Analysis

[58]

Analysis

In this case, unlike the situation in R. v. Mars, there are additional facts that connect the accused to the crime, including:

• the drug jar was inside the victim’s apartment (and not brought into his apartment by the perpetrators);
• the location or placement of the prints on the jar appears a more natural way to hold the jar to dump its content rather than to inspect it;
• these prints are to some unknown extent fragile, and handling or washing could have destroyed them (whereas in Mars apparently the prints could have last for years);
• the accused admitted that he knew the victim;
• the accused admitted that he was a friend of the perpetrators;
• the accused was in contact by text with the perpetrators: Bienvenue on a number of occasions during the days before these events and later on the day of these events; as well, he received and had one brief voice call with Jean-Philippe at 11:57 at night on July 1, 2015;
• during the morning of July 1, 2015, first at 8:11 and next at 11:14 in the morning, unlike at any other time in the records provided (since June 24, 2015), the accused’s mobile telephone transmitted via a cellular site closer to the residences of the victim and of the accused’s friend, Bienvenue; and
• during the morning of July 1, 2015, at 10:58 the accused’s mother sent him a text message for which there is no convincing explanation.

59I will next review the evidence to determine if the Crown has met its onus of proving the accused’s guilt beyond a reasonable doubt.

60Because the accused has presented evidence, I first consider whether I believe the evidence of the accused, and the alibi defence.

61The accused is a self-admitted liar who proved, during both police interviews, that he is quite good at lying. In addition, he was not a convincing witness during his testimony at trial. He was often vague and his evidence was often confusing. For example, he did not remember many details about the victim or the victim’s apartment and could not accurately situate the victim’s apartment, any of which could have rendered his testimony more convincing. As well, his explanations about when and how he purchased marijuana from the victim were imprecise. Furthermore, his testimony about his activities during the morning of July 1, 2015, conflicts significantly with what he told the police on July 8, 2015. Moreover, none of the rest of the evidence corroborates his version of events.

62Consequently, I do not believe the evidence of the accused.

63The accused’s mother contradicted herself on a number of occasions. Further, she had no convincing explanation for the coffee that she said her son wanted (despite the fact that he also wanted to sleep because he had apparently returned home early that morning), and she had no explanation for the text message that she sent to her son at 10:58 on the morning of July 1, 2015, when her son was supposedly sleeping at home. She also described a telephone call to her son during the morning of July 1, 2015, apparently to help him find his cellular telephone, which did not happen. I find that this telephone conversation did not happen based on the evidence of the accused, who did not describe such a call, based on the accused’s telephone records, which do not include any such call, and based on the evidence of the representative of the accused’s telephone carrier who said that the telephone records incorporate every text message and completed voice call (even if not to 100% certainty, as she indicated during her cross-examination). Moreover, the accused did not at all mention any of this when he was interviewed by the police on July 8, 2015, stating instead that he did not know where his mother and sister were on July 1, 2015.

64Considering all of this, the accused and his mother’s description of what happened during the morning of July 1, 2015, does not have the ring of truth. As a result, I do not believe the alibi evidence that the accused was home until 1:30 the afternoon on July 1, 2015.

65As I do not believe the evidence of the accused, I next consider whether that evidence, viewed in the context of all of the evidence, nonetheless leaves me with a reasonable doubt.

66The accused testified that he purchased marijuana from the victim on two to four occasions, near his birthday (which is on May 30), as well as a few days before Canada Day. He testified that he then touched the drug jar to inspect the product. As indicated above, the victim’s drug book contains three entries for small purchases of marijuana under the name “TYBO”. These are recorded on May 29, June 6, and June 25. This is disputed by the victim and is subject to the fragility of fingerprints and to their resulting ability to survive at least a week.

67Fingerprints may be fragile, and I prefer the evidence of the defence expert that the extent of their fragility depends on the matrix and on the substrate, because this is a more fulsome and a more logical explanation than simply saying that prints are fragile. Indeed, one can easily understand this concept by considering this extreme example (offered to a more limited extent by the defence expert): a fingerprint constituted of ink or paint (as its matrix) even on clean glass would not be fragile and, similarly, an otherwise fragile print constituted of eccrine sweat would not be fragile if the substrate is a pizza box, wet plaster, or even a nonporous surface, such as glass, if such a surface was dirty with wet paint or ink – it depends on the matrix and substrate.

68Obviously, this case is not such an extreme example. However, despite the evidence of the Crown’s expert, I accept that we do not know the precise composition of the matrix of the fingerprints left by the accused. I find that what is indicated at Exhibit 22 is an educated guess because, as is usually the case, an analysis of the composition of the fingerprints was not conducted. I also prefer the evidence of the defence expert that the drug jar or substrate was dirty because this is confirmed by Exhibit 22 and by the pictures of the drug jar.

69Consequently, I do not know to what extent these fingerprints were fragile.

70The victim said, at trial, that he does not forget a face although he might forget a name, that TYBO was Andrew the brother of Tyler Desrosier (a friend who lived across the street), and that he washed his drug jars once to twice per week. I do not find the victim credible on those assertions.

71The victim’s claim that he does not forget faces is contradicted by what he stated during the preliminary inquiry. Indeed, in November 2016 the victim said that because of his brain injury there are things, including people and faces, that he sometimes does not remember and that he could look at somebody now and not recognize them even though he had met them prior to July 1, 2015.

72Regarding the identity of TYBO, I find that the victim does not know or remember who all of his drug clients were. It became apparent during the victim’s cross-examination that he did not remember the identity of many of his drug clients, whom he said were all his neighbours and/or his friends, because of the many contradictions with earlier statements. For example:

• The victim maintained that his customers were people he knew. However, it came out during his cross-examination that at the preliminary inquiry, in November 2016, he indicated that he sold drugs essentially to his neighbours and that a variety of people would visit his house for contraband.
• He denied selling drugs to anyone who knocked on his door. However, as indicated during his cross-examination, at the preliminary inquiry he did indicate that if someone knocked on his door he might conduct a drug transaction if he had some form of trust with the person.
• Frequently, during the victim’s cross-examination, if he did not remember how he had previously answered a question during his examination in-chief, then he could not give the same answer. For example:
  • During his cross-examination, he said that Lizard was a friend of Aaron who lived in Lincoln Field and that he would sell drugs to him there. However, in-chief he had indicated that he would sell to Lizard in the park across from his home. When confronted with this he indicated that it would be at both locations. In addition, he answered differently on January 5, 2018, when he met with the Crown to prepare for trial. Then, he indicated that Lizard was a Kanata friend who would come to the victim’s apartment for drugs.
  • During his cross-examination, he indicated that he knew a client recorded as Mikey for a long time through a mutual friend. However, it came out during his cross-examination that on January 5, 2018, when he met with the Crown to prepare for trial, he indicated “don’t know” with regards to Mickey.
  • During his cross-examination, when asked who Fig was, a former client recorded in his book, he answered that he did not remember what answer he gave to this question to the Crown during his examination in-chief.
  • During his cross-examination, he described a former client recorded as Samir as a friend who would come to the victim’s apartment to purchase drugs. However, when on January 5, 2018, he met with the Crown to prepare for this trial, he described Samir as an annoying kid who would knock on his door and whom he told to fuck-off.
  • During his cross-examination, he indicated that a former client recorded as Ryan lived in Kanata in 2015, and that they grew up together. During his examination in-chief he indicated that Ryan lived in the co-op near him. His explanation was not credible and contradicted what he had told the Crown when they prepared for trial.
  • He said that a client recorded as Waldo was a carnival worker. Yet, in his transaction book, Waldo is identified earlier than the carnival worker transaction and is not one of the names identified under the carnival transaction.
  • Also, during his cross-examination, he indicated that he was friends with Waldo and that Waldo had been to his apartment. However, as indicated above, earlier during his cross-examination, he said that Waldo was a carnival worker, the same person as Carney. Later during his cross-examination he was certain that Waldo had been to his apartment, as they were friends. When he initially met with the police on July 8, 2015, he told them that Waldo had not been to his apartment.
  • When asked about a former client recorded as HHG, he indicated that he did not sell marijuana to this person at his apartment. However, as indicated during his cross-examination, on July 8, 2015, albeit during the police interview conducted very shortly after he came out of the medically-induced coma, he indicated that HHG had probably been to his house.
  • During the trial, he was certain that FLO had never been to his apartment. However, on July 8, 2015, he told the responsible detective that he thought that FLO had been to his apartment. He could not explain the contradiction and maintained that FLO has never been to his house.
  • During these questions, the victim was breathing heavily, looked uncomfortable and frustrated that he could not remember what he had said before, and he answered extremely slowly.

73In addition, I find that the victim’s evidence is not convincing regarding who he now says is “TYBO”:

• It came out during his cross-examination that during his first police interview, on July 8, 2015, albeit very shortly after he came out of the medically-induced coma, while in pain and on pain medication, he indicated concerning his former client recorded as TYBO:
  • “I don’t think so, no” and “I don’t think he’s ever been in my house” in answer to whether TYBO had been in his house;
  • “I think Tyler” in answer to what was the person’s first name;
  • “I don’t know. I can’t remember.” in answer to what he looks like; and
  • “Uh, no. Well, I don’t write people’s names down” in answer to whether he remembered TYBO’s last name.
• At trial, he indicated that TYBO was his next-door neighbour, Andrew, the brother of his friend Tyler Desrosier, and during his cross-examination, he explained that they were friends and that TYBO would come to his apartment to buy marijuana, which contradicts the above.
• However, it came out during his cross-examination that at the preliminary inquiry in November 2016 the victim did not remember who TYBO was. He then said:
  • “I don’t know” in answer to the question who’s TYBO;
  • “I—I didn’t. Unless Tybo is Tyler—unless the name was Tyler Brazeau. But it is my understanding that their fingerprint was found in my place” in answer to how did he know Tyler Brazeau;
  • “I cannot distinguish whether or not that is the same person. Unfortunately as a result of the medically induced or acquired brain injury, there are things that I guess I sometimes have issues with” in answer to whether that refreshed his memory in terms of TYBO and Tyler Brazeau being the same person;
  • He explained that there are gaps in his memory for certain events, people, and faces, that he has some trouble recognizing some faces, before July 1, 2015; and
  • It is possible, given his injuries, that he could look at somebody now and not recognize them even though he had met them prior to July 1, 2015 (excepting “long-time friends and stuff”).
• At trial, the victim denied any such gaps in his memory. However, he could not explain why he said that at the preliminary inquiry. He attempted to explain this by suggesting that he was simply agreeing with leading questions, but some of the questions asked during his cross-examination at the preliminary inquiry dealing with TYBO were open-ended questions and the few leading questions that were asked were not highly suggestive or aggressive. Moreover, his attempts to explain his memory gaps were not at all convincing. A neighbour of the victim testified at trial that the victim’s memory did not appear to have been impacted by these events; however, this does not explain the above.
• The victim could not remember the identity of Dave or Fallout, recorded in his drug book on March 23, which possibly supports the accused’s version of events.
• I did not disregard the victim’s statements to the police of July 8, 2015, despite his weak condition, because his recollection about TYBO at that time was not dissimilar to his recollection at the preliminary inquiry, when according to him his memory would have been back to normal.

74While I have no doubt that it was difficult for the victim to be precise on July 8, 2015, and while I sympathize and accordingly adjust my assessment of what he said that day, the contradictions with his current evidence are important. For example, I find it difficult to believe that he would not have remembered the identity of TYBO, (including what he looked like and whether he had been to his apartment), even if he was understandably still confused, if TYBO was, as he now states, a neighbour and a friend who lived across the street; when he was on July 8 able to remember other names, some that he apparently knew much less.

75Consequently, I find it difficult to reconcile what the victim indicated earlier about TYBO with his evidence at trial that Andrew had frequently been to his apartment for drug transactions. Moreover, it seems possible that the victim’s current recollection of TYBO results from a text exchange with the police immediately following the preliminary inquiry (see Exhibit 15), and this raises unanswered questions about the reliability of what the victim now says about TYBO.

76With regard to how frequently the victim washed his drug jars, the victim’s evidence at trial is incompatible with what he said before. At trial, the victim indicated that he washed his marijuana jars every week, every second weeks, or even twice a week (more than 20 times in 2015). He explained that he had a distinct memory of washing this jar at least 20 times in 2015. However, during his cross-examination, it became apparent that he had said differently at the preliminary inquiry. At the preliminary inquiry, he indicated that he most likely washed the jar but was not specific as to how often. Also at the preliminary inquiry, when pressed during his cross-examination, he indicated that he had no actual memory of ever washing the jar; he could not remember cleaning or washing it, but indicated: “I’m sure I would…I’m sure it got washed…I don’t remember everything I cleaned.”

77As well, at trial the victim denied that a lot of people or clients could hold the drug jars. However, at the preliminary inquiry, when asked in-chief whether anyone else could handle the jar, he answered that yes, friends who came over to his house to smoke marijuana could have handled it. At trial, when explaining why he washed the drug jars, he said that sometime people don’t wash their hands after they go to the bathroom. Realizing that this implied that other people touched the jars, he attempted to correct this by saying that only he touched the jars, but his explanation was perplexing because it made him appear aware of the potential importance of this and quite defensive of what he was now saying.

78Indeed, the impression that the victim conveyed during parts of his cross-examination was that he assumed from the outset that the accused was guilty (he said because he had been charged), and that he wanted the accused to be found guilty for this very terrible crime. This became particularly apparent from the mounting contradictions involving his knowledge of his clients, about TYBO, and about how frequently he was now certain that he had previously washed his drug jars.

79Inconsistencies with the evidence of the victim are compounded by the fact that it appears quite likely that the intruders were allowed through the front door; yet, he stated at trial that something was off about FLO and his friends, and that he kept his distance.

80Moreover, the victim often refused to concede the obvious. For example, he agreed that he carried some drug transactions in his apartment, yet he refused to agree that everyone who picked up drugs at his apartment would know that he kept drugs in his apartment. His explanation was baffling.

81The above leaves a lot of unanswered questions.

82Consequently, despite the fact that the accused lied to the police and despite the fact that here, unlike the situation in R. v. Mars, there are facts that connect the accused to the crime, I am nonetheless not satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence.

83Moreover, even if the victim consistently said that he did not know the accused, that he did not recognize the accused, and that the accused had never been allowed inside his apartment, for the reasons stated above when I consider the evidence of the accused in the context of the evidence as a whole, I am left with a reasonable doubt as to the guilt of the accused.

Conclusion

[84]

Conclusion

As a result, I find the accused not guilty on all counts.

Mr. Justice P. E. Roger Released: 2018/07/03