COURT FILE NO.: 10/18
DATE: 2019-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HOWARD WALTON
A. Khoorshed, for the Crown
T. Kent, for Mr. Walton
HEARD: April 8,9,10,11,15, 2019
REASONS FOR DECISION
gibson J.
This case concerns a home invasion robbery that occurred in Oakville in May 2017.
Howard Walton is charged with four counts on an Indictment dated February 11, 2019.
The first count alleges that, on or about May 1, 2017, at the Town of Oakville, Ontario, he did break and enter a certain place, to wit: a dwelling house situated at 374 Rimmington Drive, Oakville, Ontario, and did commit therein the indictable offence of robbery, contrary to s.348(1)(b) of the Criminal Code.
The second count alleges that, on or about May 1, 2017, at the Town of Oakville, he did rob Joneal Hall, contrary to s. 343(d) of the Criminal Code.
The third count alleges that, on or about May 1, 2017, at the Town of Oakville, he did by verbal means knowingly utter a threat to Joneal Hall to cause bodily harm to Joneal Hall, contrary to s. 264.1(1)(a) of the Criminal Code.
The fourth count alleges that, on or about May 1, 2017, at the Town of Oakville, he did carry a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code.
Mr. Walton pleaded not guilty to all four counts.
He was tried before me in a judge-alone trial on April 8, 9, 10, 11 and 15, 2019.
In explaining the Court's decision, I shall first review the facts of the case as they have emerged in the evidence heard by the Court, then instruct myself as to the applicable law, indicate the findings that I have made with regard to the credibility of certain witnesses, then apply the law to the facts in explaining the analysis that I have made, before indicating the court's determination as to finding on these charges.
Evidence at Trial
- The Crown and Defence entered into evidence as Exhibit 1 on the trial an agreed statement of facts. This provided:
Agreed Facts at Trial
The Crown and Defence agree to the following facts at trial:
On the afternoon of May 1, 2017, three black males broke into the home of Joneal Hall, located at 374 Rimmington Drive in Oakville, by cutting on the screen of a second-floor window. Mr. Hall had been napping in his bedroom on the second floor. These three males entered his bedroom and demanded cash. Mr. Hall had $15,700 in cash in a safe in his room. One of the males punched him in the face, and another threatened him with a knife to force him to open the safe. He did open the safe, and the three males left his home with the stolen $15,700 in cash and numerous items, including expensive designer clothing and jewellery.
The subscriber information on the cellular telephone seized by the police from Mr. Hall’s bedroom (telephone number 416-845-0976) is as set out in the attached business records from Rogers Mobile.
The attached record indicated as follows:
Phone #: 416-845-0976 Prepaid Chatr
Billing Name: Howerd James
Billing Address: 1500 rebecca st, Oakville ON L6L 5K3
Activation Date: 15-Apr-17
Cancellation Date: N A
A list of items stolen on May 1, 2017 prepared by Mr. Hall was made Exhibit 2 in evidence. It included $15,700 in cash, and a variety of jewellery, clothing and shoes. The total loss was specified at $40,564.
The Crown called five witnesses: the complainant Joneal Hall, and four police officers from the Halton Region Police Service: Detective Constables Bill Marshall, Sean Mazzuto, Mike Tidball and Nicholas Tansley. In addition, a number of photographs and cellphone records were made exhibits in evidence. There were also two pieces of real evidence which are important in this trial: a Gucci leather belt, and a LG cellular phone.
The Defence called two persons: the accused person, Howard Walton, and Ms. Dung Truong, a Gucci salesperson from Toronto.
The Law
The first issue I must consider is what are the essential elements of the offences alleged?
The essential elements of the offence of breaking, entering and committing the indictable offence of robbery as alleged are:
That Howard Walton broke into the dwelling house at 374 Rimmington Drive;
That Howard Walton entered that place; and
That Howard Walton committed robbery in the place.
As a general rule, breaking into a place requires the application of some force, however slight, to gain entry. Opening, unlocking or unlatching a door; raising, forcing open or breaking a window; or taking off a screen all involve enough force to count as a breaking.
A “place” may include a dwelling house.
To “enter a place” means to go into it.
The essential elements of the offence of robbery include:
That Howard Walton stole something from Joneal Hall; and
That Howard Walton was armed with an offensive weapon at the time of the stealing.
To steal something from somebody means to take something, for example, money or property that does not belong to the person who takes it and to which that person has no legal right. To steal something also requires that what is taken be moved. Any movement is enough. To steal something also requires proof that Howard Walton intended to take the money or property permanently, or at least temporarily, from Joneal Hall.
To be armed means to be equipped with or in possession of an instrument or thing. An offensive weapon is anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person. It is of no consequence that Howard Walton did not intend to use the offensive weapon. The Crown does not have to prove that Joneal Hall was frightened or intimidated by the sight of the weapon, or the prospect of its use. What must be proven, however, is that Howard Walton was equipped with or had in his possession an offensive weapon at the time he stole from Joneal Hall.
The essential elements of threatening to cause bodily harm include:
That Howard Walton made a threat;
That the threat was to cause bodily harm to Joneal Hall; and
That Howard Walton made the threat knowingly.
A threat may be spoken, written or communicated in any other way that caused it to be received by another person. It may be direct, or it may be conditional. What is important is the meaning that a reasonable person would give to the words used in the circumstances in which the words were spoken. A threat to cause bodily harm to another person is a threat to cause that person something more than a slight injury or brief pain. Bodily harm is any hurt or injury, including psychological harm, that interferes with a person’s health or comfort and is more than brief or fleeting, or minor in nature. The Crown must also prove beyond a reasonable doubt that Howard Walton made the threat knowingly. The term knowingly refers to a state of mind of the accused. A person makes a threat knowingly if, when making the threat, the accused means it to intimidate someone or means it to be taken seriously by someone.
The essential elements of carrying a weapon, such as a knife, for a purpose dangerous to the public peace include:
That Howard Walton possessed a weapon;
That Howard Walton knew that what he possessed was a weapon; and
That Howard Walton had the weapon for a purpose dangerous to the public peace.
A weapon is anything that is used, or designed or intended for use in killing, hurting, threatening or injuring another person. A knife would be such a thing. A person may have actual physical control of a weapon by having it in his hand or on his person. Sometimes, several persons may have possession of a weapon at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has a weapon in his possession or custody, all of them are in possession of the weapon, provided each has some control over it. Knowledge and agreement by the others who are not in actual possession of the weapon is essential. Mere indifference, or doing nothing, is not enough. The question of possessing a weapon for a purpose dangerous to the public peace relates to an accused person’s state of mind, his purpose for having the weapon in his possession.
The second legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.
It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes his or her determination at the end of the trial.
The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution's case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.
The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.
The term "beyond a reasonable doubt" has been used for a very long time. It is part of our history and tradition of justice.
In R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.
In R v Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:
... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....
On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
The third legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the prosecution or the defence, and matters of which the court takes judicial notice.
It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.
Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial? This last factor applies in a somewhat different way to the accused. Even though it is reasonable to assume that the accused is interested in securing his or her acquittal, the presumption of innocence does not permit a conclusion that an accused will lie where the accused chooses to testify.
The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.
The Court of Appeal for Ontario has repeatedly cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.
Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.
The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The court may accept the evidence of a particular witness in total, in part, or not at all. In Captain Clark v. The Queen, 2012 CMAC 3, the Court Martial Appeal Court has given very clear guidance as to the assessment of credibility of witnesses. Justice Watt for the court elaborated the governing principles:
First, witnesses are not "presumed to tell the truth." A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]
Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicated evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]
Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.
As Justice Watt indicated at para. 48 of Clark:
Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness' sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness' account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.
- The accused, Howard Walton, gave evidence in his trial and his evidence was essentially a denial of several essential elements of these offences. Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R v W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, for cases such as this where the accused has testified and his evidence essentially constitutes a denial of one or more of the essential elements of the offence. This guidance provides as follows:
a. first, if I believe the evidence of the accused, then I must acquit;
b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and
c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
- In R v J.H.S., 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (BCAA) where Wood J.A. suggested the additional instruction:
I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit."
There are two further aspects of the law which are particularly engaged in this case. The first has to do with the assessment of circumstantial evidence. In a case in which the Crown’s proof includes circumstantial evidence, in order to find guilt on the basis of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.
As Cromwell J. stated for the Court at para. 41 of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, to justify a conviction, the circumstantial evidence, assessed in the light of human experience, should be such that it excludes any other reasonable alternative.
The second concerns the frailties of eyewitness identification evidence. This has been a recurrent theme in the jurisprudence of the Supreme Court of Canada, including R. v. Hibbert, 2002 SCC 39, and the Court of Appeal for Ontario. Recent examples in the Court of Appeal include: R. v. Chafe, 2019 ONCA 113; R. v. Lewis, 2018 ONCA 351; R. v. M.B. 2017 ONCA 653; R. v. Biddle, 2018 ONCA 520; and R. v. Olliffe, 2015 ONCA 242.
As Hourigan J.A. succinctly summarized at paras 34-37 in Olliffe:
The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.
The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification.
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
- Benotto J.A. has recently reinforced this message at paras 26-34 in Chafe.
Analysis
I will now turn to an assessment of the evidence in this case, and whether the prosecution has met its burden of proving the guilt of the accused on each essential element of the offence, to the standard of proof beyond a reasonable doubt.
As good counsel will, the Crown and Defence in this case have produced an agreed statement of facts that has the effect of narrowing the scope of necessary scrutiny by the Court. It is thus not necessary to canvass in detail all of the evidence presented to the Court. I will focus on three essential issues: the identification of Howard Walton by Joneal Hall as one of the three black males who broke into his residence and robbed him on May 1, 2017; the leather Gucci Belt matching the description of one stolen from Joneal Hall and seized by police executing a search warrant at the location Howard Walton resided on the date of the search on May 27, 2017; and the LG cellphone belonging to Howard Walton that was found at the scene of the robbery by Joneal Hall and his grandmother later on the date of the robbery.
Applying the W(D.) analytical framework, I start with the evidence of the accused Howard Walton. Mr. Walton denies being present for the robbery of Joneal Hall on May 1, 2017. He testified that his LG cellphone was stolen from a school gym in Mississauga earlier in the day of May 1, 2017. He says that the leather Gucci belt was a gift from a former girlfriend. Concerning his testimony regarding the central issue of whether he participated in the robbery, I do not find his evidence to be credible. His evidence concerning the pivotal issue of the cellphone found at the scene of the robbery is inherently improbable and unpersuasive. (I will discuss in more detail below why I consider this to be so.) Aware of the necessity for caution regarding the use of demeanour expressed above, I do note as one further factor in the credibility assessment that his demeanour while giving his evidence was unpersuasive.
I do not believe the evidence of Mr. Walton regarding the events of May 1, 2017, and I am not left with a reasonable doubt by it. His evidence is implausible, and both internally and externally inconsistent. That Joneal Hall was robbed, that amongst the items he was robbed of was a Gucci leather belt, and that a LG cellphone belonging to Howard Walton was left in Joneal Hall’s room by one of the robbers, is not in dispute. The explanation offered by Howard Walton for the presence of his cellphone at the scene of the robbery simply does not survive scrutiny.
Mr. Walton’s evasive and argumentative demeanour while giving his evidence further buttresses my conclusion that he was being untruthful.
I must then turn to assessing whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
I will start by an assessment of the credibility and reliability of the evidence of the four police officers called as witnesses by the Crown, mindful of the guidance of appellate courts described earlier.
I found the evidence of all four of Detective Constables Marshall, Mazzuto, Tidball and Tansley to be credible and reliable.
More extensive scrutiny is required in considering the evidence of the complainant and victim of the robbery, Joneal Hall. Mr. Hall suffered a brain injury in an automobile accident in 2012, and this affects his ability to promptly process information and makes it harder for him to put his thoughts into words. Notwithstanding this impediment, I found him to be generally a credible witness who was trying his best to be honest in his evidence to the Court. However, there are significant concerns with the reliability of one important element of his evidence, his eyewitness identification of Howard Walton as one of the three young black men who robbed him.
As discussed above, the reliability of the evidence of a witness engages distinct considerations from its credibility. In this case, the eyewitness identification of Howard Walton by Joneal Hall is simply too unreliable to be accepted as evidence by the Court. Mr. Hall did not make a contemporaneous identification of Howard Walton in his statement to police on the day of the robbery. He subsequently conducted his own research on the internet. He was influenced by rumours he heard around the neighbourhood. He may have been influenced by the subsequent arrest of Howard Walton by the police. As he stated in his evidence, at some point he put one and two together, and arrived at a conclusion that it must have been Howard Walton. He said that he did not recognize Howard Walton on the day of the incident, but that he came to the conclusion later. During the robbery, he only saw part of the face of the person he subsequently thinks was Howard Walton.
This is nowhere close to constituting reliable eyewitness identification evidence. It would be unsafe to accept this as reliable evidence of identification, and I do not do so.
The evidence regarding the Gucci belt seized by police at Howard Walton’s residence engages different considerations. It is at least consistent with the Crown’s assertion that it was amongst the items of clothing stolen by Howard Walton from Joneal Hall’s residence on May 1, 2017. The evidence of Mr. Hall that he purchased the same sort of belt from the Nordstrom Store at the Eaton Centre in Toronto was substantiated by a receipt and by the evidence of the Gucci representative Ms. Dung Truong. Mr. Hall gave evidence about the possible origin of the scratches on the belt buckle of the belt (Exhibit 27 in evidence). I did not believe the explanation of Mr. Walton that the expensive belt ($430) was purchased as a gift for him by a former girlfriend, who was not called as a witness at the trial.
Ms. Truong testified that, to the extent that Gucci’s recordkeeping permits, all together at least 27 units of this type of belt had been sold in the Greater Toronto Area.
It is possible that this is indeed the same belt. However, in respect of this sort of circumstantial evidence, I must instruct myself as trier of fact that I must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence, and that it excludes any other reasonable alternative. On the circumstantial evidence before me, the belt does not rise to this level. It is not, on its own, dispositive evidence that Mr. Walton participated in the robbery.
This leaves the cellphone, which is the most important and, ultimately in my assessment, dispositive piece of evidence in this trial.
It is accepted by the Defence that the LG cellphone found at the scene of the robbery by Joneal Hall and his grandmother on the day of the robbery was Howard Walton’s phone. The explanation by Howard Walton that it was stolen from a high school gym in Mississauga shortly before, on the same day as the robbery, and that it then was dropped by the robber in Joneal Hall’s room a short time later, would require a fantastic degree of coincidence. The explanation given by Mr. Walton during cross-examination of the circumstances in which he says the cell phone was stolen does not hold water. Mr. Walton’s persistent pattern of dishonesty regarding the phone (registering the LG phone to a false name Howerd James, his unbelievable explanation about the address of 1191 westview terrace contained in the text messages), and the text messages to SK at 1:20 and 1:27 strongly suggestive of preparations being made to rob someone, lead me to conclude that he is not credible.
The presence of the cellphone is circumstantial evidence. But there is no other reasonable alternative to the conclusion that Howard Walton dropped his LG cellphone in Joneal Hall’s room during the robbery. Given this conclusion, together will the other evidence specified above, all of the essential elements of the first two counts are made out.
With regard to the third count on the indictment, that Howard Walton uttered a threat to cause bodily harm to Joneal Hall, Mr. Hall’s evidence was unclear. It turned on who was wearing which coloured hoodie. Given that I have not accepted the eyewitness identification of Howard Walton as reliable, this evidence is insufficient to prove beyond a reasonable doubt that it was Howard Walton who uttered the threat. The evidence is insufficient to sustain a conviction on this count.
With regard to the fourth count of carrying a knife as a weapon dangerous to the public peace, it is again unclear whether Howard Walton was the one amongst the three who carried and brandished the knife. However, the agreed statement of facts provides that one of the three men threatened Joneal Hall with a knife to force him to open the safe.
Where any one of two or more persons, with the knowledge and agreement of the others, has a weapon in his possession or custody, all of them are in possession of the weapon, provided each has some control over it. The knife was in joint possession and was a central part of the common purpose of the three men to commit the robbery. Party liability would accrue to Mr. Walton pursuant to s.21(2) of the Criminal Code.
On the evidence as a whole, I find that on May 1, 2017, together with two other men, Howard Walton broke into and entered the dwelling of Joneal Hall at 374 Rimmington Drive in Oakville for the purpose of committing the indictable offence of robbery, and that he robbed Joneal Hall. I also find that one of the three men carried a knife for a purpose dangerous to the public peace, that is, to use it to threaten Joneal Hall in order to force him to open his safe so that they might steal the money therein, and that this was done as part of a common unlawful purpose.
I find that, with regard to the first, second and fourth counts on the Indictment, the Crown has met its burden of proving all of the essential elements of the offence to the standard of proof beyond a reasonable doubt, and that it has failed to do so with regard to the third count.
The Court finds Howard Walton guilty of the first, second and fourth counts on the Indictment. It finds him not guilty of the third count.
Gibson J.
Released: May 27, 2019
COURT FILE NO.: 10 /18
DATE: 2019-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HOWARD WALTON
REASONS FOR decision
Gibson J.
Released: May 27, 2019