R. v. Korchinski & Colley-Welch, 2018 ONSC 4820

COURT FILE NO.: CR17-100000498-0000 DATE: 20180810 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Nathan Kruger for the Crown

• and -

REECE KORCHINSKI AND DARIENNE COLLEY-WELCH Brendan Gould for Mr. Korchinski Lisa Jørgensen for Mr. Colley-Welch

HEARD: June 4, 5, 7, 8, 13, and July 31, 2018

REASONS FOR JUDGMENT CORRICK J. (orally)

Overview

[1] Reece Korchinski and Darienne Colley-Welch are jointly charged in a multi-count indictment with a number of offences arising from an alleged gun-point robbery of Matthew Thomas and his girlfriend, Danielle Patai on February 24, 2016. In addition, Mr. Korchinski is charged with five offences related to his alleged breach of a number of court orders. Both accused men were tried before me without a jury.

[2] Specifically, Mr. Korchinski and Mr. Colley-Welch were jointly tried on the following charges, all contrary to the Criminal Code:

• Count 1 Possession of a firearm without a licence or registration certificate, contrary to s. 91(1)
• Count 2 Pointing a firearm at Matthew Thomas, contrary to s. 87(1)
• Count 3 Unlawful confinement of Matthew Thomas, contrary to s. 279(2)
• Count 5 Robbery of Matthew Thomas while armed with a weapon, contrary to s. 343(d)
• Count 6 Use of an imitation firearm while robbing Matthew Thomas, contrary to s. 85(2)(a)
• Count 7 Assault on Udara Kissoon, using a weapon, contrary to s. 267(a)
• Count 8 Pointing a firearm at Danielle Patai, contrary to s. 87(1)
• Count 9 Pointing a firearm at Udara Kissoon, contrary to s. 87(1)
• Count 12 Robbery of Danielle Patai while armed with a weapon, contrary to s. 343(d)
• Count 13 Use of an imitation firearm while robbing Danielle Patai, contrary to s. 85(2)(a)

[3] Mr. Korchinski was tried on the following counts:

• Count 14 Breach of probation, to wit: keep the peace and be of good behaviour
• Count 15 Breach of recognizance, to wit: keep the peace and be of good behaviour
• Count 16 Possession of a firearm contrary to a prohibition order
• Count 17 Breach of recognizance, to wit: no contact with Danielle Patai
• Count 18 Breach of recognizance, to wit: no contact with Matthew Thomas

[4] The Crown called two witnesses – Matthew Thomas and Danielle Patai. An agreed statement of fact was filed as an exhibit, along with a number of photographs, an excerpt from a music video, and video surveillance recordings.

[5] The defence called no evidence.

Evidence

Events in the Apartment

Mr. Thomas’ Evidence

[6] Matthew Thomas testified in chief as follows. In February 2016, he and his girlfriend, Danielle Patai, and their two-month old daughter lived on the 18th floor of 150 Dan Leckie Way in Toronto.

[7] Mr. Thomas testified that he sold marijuana, codeine, cocaine and MDMA. On February 24, 2016, Mr. Korchinski called Mr. Thomas and asked if he could stop by Mr. Thomas’ apartment to buy eight ounces of codeine from him. Mr. Thomas had known Mr. Korchinski for about one year before this incident. They shared an interest in music. A few days prior to this incident, Mr. Thomas and Mr. Korchinski argued about money. Mr. Korchinski wanted Mr. Thomas to give him a few hundred dollars, and Mr. Thomas refused.

[8] According to video surveillance, Mr. Korchinski and another man, known to Mr. Thomas as “D,” arrived at Mr. Thomas’ apartment at around 7:30 p.m. on February 24, 2016. Mr. Thomas, Ms. Patai, their infant daughter, and Mr. Kissoon were in the apartment at the time.

[9] Mr. Thomas and Mr. Korchinski talked about money for a few moments. Mr. Thomas apologized to Mr. Korchinski about their argument. They rode two hoverboards around the apartment and then Mr. Korchinski asked Mr. Thomas to go in the bathroom with him. Mr. Thomas followed Mr. Korchinski into the bathroom, and “D” followed behind him. Mr. Thomas thought that Mr. Korchinski wanted to purchase the codeine from him in the bathroom.

[10] Seconds after closing the bathroom door, “D” pulled a gun out of a duffle bag he was carrying, pointed it at Mr. Thomas’ chest and said, “Give me your shit.” Mr. Korchinski told Mr. Thomas that they did not want to hurt him and that he should just go along with what “D” asked.

[11] “D” took a gold chain and medallion that Mr. Thomas was wearing. Mr. Thomas gave him a diamond ring he was wearing, and his IPhone. “D” then instructed Mr. Thomas to go into his bedroom and “get the rest of his shit,” which Mr. Thomas assumed meant more of his jewelry and an expensive video camera. Once Mr. Thomas agreed, he was allowed to leave the bathroom. “D” put the gun back in his duffle bag.

[12] Mr. Kissoon and Ms. Patai were in the living room when Mr. Thomas emerged from the bathroom. Rather than go into his bedroom, Mr. Thomas paced around a table in the living room. He asked “D” and Mr. Korchinski why they were doing this. Mr. Kissoon made a comment and “D” pointed the gun at his head. A struggle between Mr. Korchinski, “D” and Mr. Kissoon ensued.

[13] Mr. Thomas called “D” and Mr. Korchinski “pussies,” lifted his shirt, and invited them to shoot him if the gun was real. “D” cocked the gun, and put it against Mr. Thomas’ bare chest. Ms. Patai, who was sitting on the couch, said she was going to call the police. “D” turned his attention to her, pointed the gun at her, and tried to search her for her phone.

[14] Mr. Thomas went in to the kitchen and took a long bread knife from a drawer. Mr. Korchinski followed him. When Mr. Thomas tried to swing the knife at Mr. Korchinski, he slammed Mr. Thomas against the kitchen wall, causing a gash in Mr. Thomas’ head. “D” then hit Mr. Thomas on the top of his head with the gun.

[15] “D” ran out of the kitchen into the living room. He picked up the blue hoverboard and tried to hit Mr. Thomas with its wheel. Ms. Patai began screaming, and told them to take what they wanted and leave.

[16] The two men left the apartment and ran down the stairs. Mr. Thomas chased them down the stairs with the knife in his hand and an empty liquor bottle, which he threw at Mr. Korchinski. It bounced off Mr. Korchinski’s hair and shattered in the stairwell. Mr. Thomas heard the stairwell door on the 6th floor open. He ran on to the 6th floor, but did not see the two men in the hall. Mr. Korchinski’s brother-in-law, who lives on the 6th floor, was standing in the doorway to his apartment. Mr. Thomas asked him to send Mr. Korchinski out. When he was asked to wait, he thought better of standing in the hall with a knife in his hand, so returned to his apartment. By the time he arrived there, the police were there.

[17] Mr. Thomas was interviewed by the police that night. He told the police that he had been robbed by Mr. Korchinski and someone he knew only as “D”.

[18] On April 12, 2016, Mr. Thomas viewed a photo line-up at the police station. He did not identify “D.” There is no evidence about whether Mr. Colley-Welch’s photograph was in the photo line-up. During his discussion with the police on April 12, Mr. Thomas said that he had found a music video on his computer that showed “D” with Mr. Korchinski. Sometime before the robbery, Mr. Korchinski had shown him the music video and had left it on Mr. Thomas’ computer. Mr. Thomas testified that after the robbery he came across the video on his computer, and recognized “D.” He was unable to say when he found the video in relation to the robbery.

Ms. Patai’s Evidence

[19] Ms. Patai testified that Mr. Korchinski and his cousin “D” came to her apartment at around 8:00 p.m. on February 24, 2016. She was home with Mr. Thomas, Mr. Kissoon and her daughter. She was familiar with Mr. Korchinski because he came to her place weekly to work with Mr. Thomas on music. She had only seen “D” once before in the spring or summer of 2015 when he came to her apartment and sat at the studio desk with Mr. Thomas. She said hello to him and then went in to her bedroom. “D” stayed there for about 20 minutes that time.

[20] After Mr. Korchinski and “D” arrived at the apartment, they talked to Mr. Thomas for a few minutes. Mr. Korchinski rode the blue hover board for a few minutes, and then the three of them went into the washroom. Mr. Thomas went in first. According to Ms. Patai, it was not unusual for Mr. Thomas and Mr. Korchinski to go in to the bathroom together to talk about money.

[21] The three men were in the bathroom for five to eight minutes. When Mr. Thomas emerged, he seemed anxious and scared. She could tell that there was tension between the three men. Mr. Thomas said to Mr. Korchinski and “D”, “Why are you doing this to me?”

[22] “D” grabbed Mr. Kissoon around his neck from behind, pulled a gun from his duffle bag and held it to the right side of his temple. Mr. Kissoon broke free from “D’s” grasp and the two men began wrestling on the floor. “D” did not have the gun in his hand when they were wrestling. Ms. Patai did not know where it was. She told “D” that she was going to call the police if he did not stop. “D” then turned his attention to her. He pointed the gun at her forehead.

[23] Mr. Thomas went in to the kitchen and took a long bread knife from a drawer. “D’s” attention turned to Mr. Thomas. Mr. Korchinski ran in to the kitchen after Mr. Thomas. As “D” ran towards Mr. Thomas, she heard and saw “D” move the top of the gun back. She was still on the couch.

[24] Mr. Thomas was backed into a corner in the kitchen. He was waving the knife. The two men threw Mr. Thomas against the wall. Mr. Thomas’ head hit the wall, and he dropped the knife. The men continued to hold Mr. Thomas against the wall for a few moments. Mr. Kissoon pulled one of the men off of Mr. Thomas, and the struggle in the kitchen ended.

[25] “D” walked into the living room, and picked up the blue hoverboard. She told him to take it and leave. Mr. Korchinski was standing near the door. He opened the door, and ran out. “D” followed him. Mr. Thomas tried to chase them but was unable to because Mr. Kissoon blocked the door. After a few seconds, Mr. Thomas broke through Mr. Kissoon, ran out, but returned a few seconds later and retrieved an empty liquor bottle. He left again and Ms. Patai heard the bottle shatter in the stairwell.

[26] Ms. Patai telephoned Mr. Korchinski’s sister, Renee, and told her that her brother had just robbed Mr. Thomas of his things. According to Ms. Patai, Mr. Thomas told her what had been stolen as he ran out the door after the two men. She spoke to Renee for two or three minutes. After Mr. Thomas returned to the apartment, Ms. Patai called the police. During the ten minutes while they waited for the police to arrive, Mr. Thomas told her what had happened in the bathroom. She denied discussing the events that occurred in the living room with Mr. Thomas while they waited for the police.

Mr. Korchinski’s Telephone Call

[27] Mr. Thomas testified that Mr. Korchinski called him on his cell phone a few days after the robbery and apologized. He called Mr. Thomas’ cell phone from an unknown number. Mr. Korchinski asked Mr. Thomas why he had called the police. Mr. Thomas hung up on him.

[28] Mr. Thomas testified that he had told a friend of Mr. Korchinski that he would drop the charges if he got his belongings back. Mr. Korchinski called Mr. Thomas’ cell phone in April or May of 2016. Mr. Thomas was home at the time, and he picked up his cell phone directly. Mr. Korchinski asked him to meet because he had a cheque for him. Mr. Thomas asked him to meet at the Fox and Fiddle. Mr. Korchinski agreed. Mr. Thomas also told Mr. Korchinski that he was going to knock him out. Mr. Korchinski did not meet Mr. Thomas at the Fox and Fiddle. According to Mr. Thomas, his conversation with Mr. Korchinski was not on the speaker phone, but Ms. Patai was present.

[29] In a statement to the police on May 6, 2016, Mr. Thomas said that Mr. Korchinski had called Ms. Patai’s cell phone two days earlier at 10:00 p.m. Ms. Patai answered the phone. Ms. Patai gave Mr. Thomas the phone. It was Mr. Korchinski asking to meet to give Mr. Thomas a cheque.

[30] Mr. Thomas testified that what he told the police in May was the truth, and that he was mistaken when he testified that he had picked up the phone directly and spoken to Mr. Korchinski.

[31] Ms. Patai testified that she received a call on May 4 around 4:00 p.m. from Mr. Korchinski. He disguised his voice, identified himself as “T” and asked to speak to Mr. Thomas. Ms. Patai gave the phone to Mr. Thomas. She heard the conversation between Mr. Thomas and Mr. Korchinski because it was on speaker phone. Mr. Korchinski told Mr. Thomas that he would give him money if Mr. Thomas would not go to court. Mr. Thomas told Mr. Korchinski that he did not want his money, and hung up the phone.

[32] In a statement to police that Ms. Patai gave under oath on May 6, 2016, she said that she received a phone call from someone who identified himself as “T.” The caller did not ask to speak to Mr. Thomas. Rather, Ms. Patai simply handed the phone over to Mr. Thomas. She told police that she only heard Mr. Thomas’ side of the conversation. Mr. Thomas told her that Mr. Korchinski was the caller.

The Issues

[33] The main issue in this trial is whether the events as described by Mr. Thomas and Ms. Patai actually occurred. If I find that they did, there are a number of other subsidiary issues, such as whether the firearm was real or an imitation, and the role of Mr. Korchinski in the events.

[34] There is also an issue about the identification of Mr. Colley-Welch as one of the perpetrators of these offences.

Applicable Legal Principles

[35] My analysis of the evidence in this trial is governed by the following fundamental principles that apply to all criminal trials.

[36] The first is that the Crown must prove beyond a reasonable doubt that Mr. Korchinski and Mr. Colley-Welch are guilty of the offences charged. This standard is a high one. It is not enough for me to believe that they are probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

[37] The second is the presumption of innocence. This presumption stays with Mr. Colley-Welch and Mr. Korchinski throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that they are guilty of any of the crimes charged.

[38] The presumption of innocence also means that neither man has to prove that he is innocent of these crimes.

[39] Thirdly, I am required to make my decision based on the whole of the evidence.

[40] Finally, I can accept some, none, or all of the evidence of any witness.

Analysis

[41] I begin with an assessment of the credibility and reliability of Mr. Thomas and Ms. Patai. I turn first to the evidence of Mr. Thomas.

[42] As Mr. Kruger, Crown counsel, acknowledged, Mr. Thomas presented significant challenges as a witness. In the witness box, Mr. Thomas was often unfocused, and prone to making derogatory comments about Mr. Korchinski and Mr. Colley-Welch, and other inappropriate remarks, both into the record and sotto voce. Mr. Kruger submitted that the court ought to assess Mr. Thomas’ evidence bearing in mind that he suffers from fetal alcohol syndrome, which causes him to act impulsively.

[43] Mr. Thomas’ credibility and reliability must be assessed against criteria appropriate to his mental development, understanding and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, at para. 27. The court, and indeed counsel, were very patient and understanding with Mr. Thomas throughout the two days that he gave evidence. In the end analysis however, the numerous issues with Mr. Thomas’ evidence have caused me to be concerned about his reliability and credibility.

[44] The first issue was the general tenor of his evidence. His animus towards the defendants was palpable, as was his desire to exact revenge against them.

[45] The second was his continuous effort to belittle and insult the defendants in an effort to demonstrate that he was the tougher, wealthier, more talented man.

[46] The third issue was the ease with which he was prepared to be dishonest with the police, the judge who conducted the preliminary inquiry and this court.

[47] The fourth issue, which exacerbated his inclination to dishonesty, was his dismissive attitude toward his obligation to be honest with the court.

[48] The fifth issue was the number of internal inconsistencies in his evidence, and the number of inconsistencies with Ms. Patai’s evidence.

[49] The trial record is replete with examples of these issues. They include the following.

1. Mr. Thomas testified that Mr. Korchinski came to his apartment that night to buy codeine from him. However, he told the police in a sworn statement that he was not selling drugs to anyone that night. He testified that he lied to the police because he did not want to incriminate himself. He also testified that he did not remember the police asking him that question, but if they had, he would have lied. He went on to say that it was his right to answer questions however he wished.
2. At trial, Mr. Thomas testified that he sold marijuana daily, and that he also sold cocaine, MDMA, and codeine. At the preliminary hearing, he said that he sold marijuana and codeine. He did not mention the cocaine and MDMA. At trial, he testified that he did not mention the cocaine and MDMA because he did not sell those drugs daily.
3. Mr. Thomas told the police that the defendants stole his gold chain, which was worth $3,000 and his gold Jesus pendant, which was worth $700. At trial, he testified that the chain was worth between $1,000 and $1,200 and that the pendant was worth $80. He testified that he lied to the police about the value of the pendant because he was too embarrassed to tell them that he was wearing a fake pendant. He also said that he embellished the value of the pendant because he was mad at the defendants and “wanted them to get theirs.” In cross-examination, he denied that he had lied when he told police that the pendant was gold, because it was gold-coloured. When he was cross-examined about why he had inflated the value of the pendant when he spoke to the police, he replied, “I just established that, I embellished. Not a big deal, buddy.”
4. Mr. Thomas told the police that “D” cocked the gun when they were in the bathroom. At trial, he testified that this was an embellishment on his part; “D” had not cocked the gun in the bathroom. When defence counsel cross-examined him on this inconsistency, he minimized it, saying that he was just re-enacting the scene in his head. He then said to counsel, “Next. Nice try,” indicating that he had not been caught in a lie.
5. Mr. Thomas testified that he had met Mr. Korchinski through a friend, who was Mr. Korchinski’s brother-in-law. He testified that he did not know his friend’s full name; he only knew him as “J.” Later, he testified that he did know the full name of his friend. He denied that he had misled the court and said that he did not think his friend’s name was important. He also said that it was his right to not answer questions if he did not want to.
6. In cross-examination, Mr. Thomas admitted lying about whether he was selling drugs the night of the robbery, and whether he knew his friend’s name. When counsel asked him if those were the only two instances when he lied, he replied, “It’s your job to figure out what’s the truth and what’s not.”
7. Mr. Thomas testified that he had handled a real gun a couple of times. At the preliminary hearing, he testified that he had never handled a real gun. He told me that at the preliminary hearing he had forgotten that he had handled a real gun twice before. When asked by defence counsel how many other things he had testified about inaccurately at the preliminary hearing, he replied, “you tell me.”
8. He testified at trial that he had not spoken to other people to try to determine if the gun used in the robbery was real. At the preliminary hearing, he testified that he had spoken to a couple of people to see if the gun was real. He explained this by saying that he did not remember speaking to other people about the gun.
9. In his evidence, Mr. Thomas named a number of different brands and calibres of firearms when describing the gun that was used in the robbery. When defence counsel suggested to him that he was describing guns that he had seen in videos and movies rather than what he saw in his apartment, he said that he had rhymed off names of different guns to “sound cool” and to “help my case, to get my justice.”
10. At trial, Mr. Thomas testified that he never made music with Mr. Korchinski, never ran his music by Mr. Korchinski, and never used Mr. Korchinski to get feedback about his music or to help him get publicity. According to Mr. Thomas, his music was good and Mr. Korchinski’s was “crap.” He also testified that he did not want to “be tight” with Mr. Korchinski, but that Mr. Korchinski had forced himself on him. In his statement to the police, Mr. Thomas said that he and Mr. Korchinski made music together, and were part of the same music group. He told police that they [referring to the defendants] were good musicians, and he used them to get feedback on his music and to get publicity. When asked at trial, which version was the truth, he testified that both were. He had simply chosen his words poorly when he spoke to the police, but he was now more mature and had better judgment.
11. Finally, during cross-examination, Mr. Thomas acknowledged that he understood the importance of telling the truth to the police, at the preliminary hearing and at the trial. He indicated that he knew that he could suffer criminal consequences for lying. He also knew that he was required to give full and honest evidence in court because he was testifying in a criminal matter and people were facing serious consequences. He added however that, “my consequence wouldn’t be that bad.”

[50] These are but a few examples that illustrate Mr. Thomas’ propensity to lie, and more importantly, his flippant attitude toward his obligation to testify honestly. Mr. Kruger argued that the court must use caution when considering Mr. Thomas’ evidence given the fact that he had been dishonest with the court. However, Mr. Kruger asked the court to consider that Mr. Thomas did not resist admitting that he had lied, even about things that were against his interest, such as his drug dealing on the night of the robbery. This, in Mr. Kruger’s submission, is a hallmark of reliability. I do not agree. Mr. Thomas’ readiness to admit that he lied under oath does not enhance his credibility or reliability. I cannot trust Mr. Thomas’ evidence standing on its own.

[51] I turn next to the evidence of Ms. Patai. In chief, Ms. Patai’s evidence was clear and apparently reliable and credible. However, her carelessness with the truth became evident during cross-examination. Again, I point to a number of examples.

1. Ms. Patai testified that she did not know that Mr. Korchinski came to her apartment that evening to buy codeine from Mr. Thomas. She said that she first learned that from Mr. Thomas after the events were over, and she had called the police. At the preliminary hearing however, she testified that she had overheard a conversation between Mr. Korchinski and Mr. Thomas on the speakerphone during which Mr. Korchinski said he was coming over to buy codeine. She agreed that her testimony at trial was incorrect, and that her preliminary hearing evidence was the truth.
2. Ms. Patai testified that she did not know where Mr. Thomas obtained the codeine. At the preliminary hearing she testified that Mr. Thomas obtained the codeine from someone whom Mr. Korchinski knew.
3. Ms. Patai testified that Mr. Thomas went out to buy the codeine the day before the robbery. At the preliminary hearing, she testified that the person who sold it to Mr. Thomas brought it to her house. This evidence also contradicts Ms. Patai’s evidence at trial that, before the robbery, she knew nothing about Mr. Thomas selling drugs, and that the first time she heard that he sold drugs was the night of the robbery.

[52] In re-examination, Ms. Patai was given the opportunity to explain why she told the court that she did not know that Mr. Korchinski was coming to her house to buy codeine when she had testified to the contrary at the preliminary hearing. Her answer was very revealing. She said, “I didn’t recall saying that I knew that he was coming to do that the first time, so I didn’t want to say it this time if I didn’t say it the first time. I didn’t want to say that I knew this time and I didn’t know if I said it the first time. I forgot.” In other words, she was unable to keep her story straight.

[53] Mr. Kruger submits that I can rely on Ms. Patai’s evidence for the following reasons. She was a forthcoming witness who answered questions thoughtfully and directly. When she knew the answer to a question, she replied right away. Otherwise, she took her time. She accepted that she had given inconsistent evidence when confronted with her preliminary hearing evidence. I agree that Ms. Patai appeared to be a forthcoming witness. However, her willingness to ignore her oath to tell the truth makes it difficult to rely on her evidence.

[54] Mr. Kruger argues that I can accept the evidence of Mr. Thomas and Ms. Patai because they corroborate each other, and parts of their evidence are corroborated by the video surveillance evidence.

[55] Mr. Thomas’ and Ms. Patai’s descriptions of what the men were wearing were similar and were corroborated by the surveillance video. They both described Mr. Thomas going into the washroom with the two men. They both described a scuffle in the living room after the men left the washroom during which the gun was pointed at Mr. Kissoon and at Ms. Patai. Both described a struggle in the kitchen between Mr. Thomas and Mr. Korchinski and “D” during which Mr. Thomas hit his head. They both testified that “D” left the apartment with the blue hoverboard, which can be seen under his arm in the video surveillance evidence.

[56] I have already indicated that I have found Mr. Thomas and Ms. Patai to be untrustworthy witnesses because they have demonstrated their willingness to disregard their oaths to tell the truth. The evidence of one untrustworthy witness, however, can be confirmatory evidence of another untrustworthy witness: R. v. Winmill, [1999] O.J. No. 213 (C. A.), at para. 115. Ms. Patai’s evidence does not have to confirm Mr. Thomas’ evidence in every respect, but it should restore my faith in Mr. Thomas’ version of events: R. v. A. B., [1997] O.J. No. 1578 (C. A.), at para. 24. However, it does not.

[57] Although there are similarities in their versions of events, there are also differences. For example, Mr. Thomas testified that Mr. Korchinski went into the bathroom first. “D” hesitated to go into the bathroom but eventually did after Mr. Thomas. Ms. Patai testified that Mr. Thomas went into the bathroom first, followed by Mr. Korchinski and “D” together.

[58] Mr. Thomas testified that when the men arrived at the apartment, he and Mr. Korchinski rode the hoverboards. Mr. Thomas was very specific about this. He testified that he gave Mr. Korchinski the blue hoverboard, the “crappy one.” Mr. Thomas rode the black one. Ms. Patai testified that the black hoverboard had been broken for months and was unusable.

[59] Mr. Thomas testified that “D” pointed the gun at Ms. Patai when she threatened to call the police. “D” tried to search Ms. Patai for her phone but Ms. Patai would not give it up. Ms. Patai later told Mr. Thomas that she had hidden her phone by sitting on it. Ms. Patai testified that she did not have her phone with her that evening. It was in her bedroom. She also testified that “D” did not search or touch her in an effort to find her phone. She did not tell Mr. Thomas that she had sat on her phone.

[60] While the two men were struggling with Mr. Kissoon in the living room, Mr. Thomas testified that he called the men “fucking pussies,” told them they were too scared to shoot him, lifted his shirt up and said, “shoot me.” It was at that moment when “D” cocked the gun and put it to Mr. Thomas’ bare skin. This happened in the presence of Ms. Patai, who was sitting on the couch. However, Ms. Patai did not describe this rather dramatic event. Rather when asked whether Mr. Thomas had pulled up his shirt during the scuffle in the living room, she replied that she did not think that Mr. Thomas was wearing a shirt. She also testified that “D” did not move any part of the gun when they were in the living room.

[61] Their evidence about Mr. Thomas chasing the men out of the apartment and returning moments later was also inconsistent. Mr. Thomas testified that he chased the two men down the stairs. He had the knife and an empty liquor bottle in his hand. He got close enough to Mr. Korchinski to throw the bottle at his head. According to Mr. Thomas, it bounced off of Mr. Korchinksi’s “poufy” hair and shattered in the stairwell. Ms. Patai testified that Mr. Thomas wanted to chase the men down the stairs but was stopped by Mr. Kissoon, who blocked the door to prevent Mr. Thomas from leaving. Mr. Thomas pushed through Mr. Kissoon after a few seconds. He left, but returned a few seconds later, grabbed the empty liquor bottle and left again. Mr. Thomas threw the bottle down the first flight of stairs. She heard it smash and saw the broken glass in the stairwell.

[62] Mr. Thomas testified that he met the police in the hallway outside of his apartment when he returned after chasing the men. He did not call the police; Ms. Patai did. Ms. Patai testified that she did not call the police until after Mr. Thomas returned to the apartment because she did not know if Mr. Thomas wanted to call the police. Although she called the police, Mr. Thomas spoke to them. They waited approximately 10 minutes for the police to arrive, during which time Mr. Thomas told her what had happened. She agreed with Ms. Jørgensen that what Mr. Thomas told her changed how she replayed the events of the evening in her head. She denied discussing the events that occurred in the living room with Mr. Thomas before the police arrived. Mr. Thomas later told her what he had told the police when he gave his statement at the police station that night.

[63] Mr. Thomas and Ms. Patai also differed about Ms. Patai’s knowledge of Mr. Thomas’ drug dealing. According to Mr. Thomas, Ms. Patai knew all about it. He said, “She’s my wife, she knows everything.” Ms. Patai, on the other hand, testified that she first learned that Mr. Thomas was selling drugs when he told her the night of the robbery while they were waiting for the police to arrive.

[64] When testifying about his identification of Mr. Colley-Welch as one of the robbers, Mr. Thomas testified that he never really watched the video that featured Mr. Korchinski and Mr. Colley-Welch, because it was of such poor quality. He watched only a snippet of it when Mr. Korchinski first showed it to him. He testified both that he had not seen that portion of the video with Mr. Colley-Welch in it before the robbery and that he remembered Mr. Colley-Walsh being in the video from the first time Mr. Korchinski showed it to him. Ms. Patai testified that she and Mr. Thomas watched the video multiple times with Mr. Korchinski before the robbery happened.

[65] These are but a few examples of the inconsistencies in the evidence of Mr. Thomas and Ms. Patai. Of course, inconsistencies in the evidence of two witnesses who are describing an event that occurred more than two years ago are to be expected, even with honest witnesses. However, when viewed in light of the very serious issues that exist with the credibility of these two witnesses, these inconsistencies further reduce my faith in their evidence.

[66] I have also considered the fact that Mr. Thomas and Ms. Patai discussed the events of the evening before the police arrived at their apartment, and after Mr. Thomas gave his statement to the police. Ms. Patai agreed that hearing Mr. Thomas’ version of events affected how she recalled the events. The corroborative effect of their evidence is diminished by the fact that they are not independent, and discussed the events prior to testifying.

[67] The behaviour of the defendants depicted in the video surveillance is very suspicious. They arrive at the apartment building through the front door and leave by running through the underground garage. One of the men has a hoverboard under his arm. However, my suspicion or finding that they probably committed some of the offences with which they are charged is not enough. Our law requires proof beyond a reasonable doubt.

[68] The admitted dishonesty of the witnesses, and the inconsistencies in their evidence, both internal and external, have left me with a reasonable doubt about whether Mr. Thomas was confined in the bathroom, whether a gun was brandished that evening, whether Mr. Thomas was robbed, and whether Mr. Korchinski contacted Mr. Thomas and Ms. Patai, contrary to the conditions of his recognizance. Our law requires that I give Mr. Korchinski and Mr. Colley-Welch the benefit of that doubt.

[69] The offences charged against Mr. Korchinski set out in counts 14, 15 and 16 arise from my findings of fact made in relation to the more serious offences. Given my findings on the offences related to the events in the apartment, Mr. Korchinski will be found not guilty on counts 14, 15 and 16.

[70] Accordingly, Mr. Korchinski and Mr. Colley-Welch are acquitted on all counts.

Corrick J.

Released: August 10, 2018

COURT FILE NO.: CR17-100000498-0000 DATE: 20180810 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – REECE KORCHINSKI AND DARIENNE COLLEY-WELCH REASONS FOR JUDGMENT Corrick J. Released: August 10, 2018