COURT FILE NO.: CR/18/50000543/0000

DATE: 20190927

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

JOSHUA GITTENS

Ms. Barnes, for the Crown

Mr. Alibhai, for Mr. Gittens

HEARD: September 9, 10, 12, and 13, 2019

Croll J.

REASONS FOR JUDGMENT

Introduction

[1] Joshua Gittens is charged as follows:

(i) That he, on or about the 22nd day of June in the year 2017, in the City of Toronto, did in committing as assault on Anthony Smith, wound or endanger the life of Anthony Smith, thereby committing an aggravated assault, contrary to Section 268(2) of the Criminal Code.[^1]

(ii) That he, on or about the 22nd day of June in the year 2017, in the City of Toronto, did conspire together with Tyler Almeida, Manad Liban Dahir, and/or Calvin Michail Nimoh to commit the indictable offence of assault on Anthony Smith, by words or acts, contrary to s. 465(l)(c) of the Criminal Code.

[2] The assault occurred in Cell 17 at the Toronto South Detention Center. The Complainant, Anthony Smith, together with Mr. Gittens and his alleged co-conspirators, were all inmates at the Toronto South at the relevant time.

[3] Manad Dahir and Calvin Nimoh were the two individuals who inflicted the injuries on Mr. Smith. They have both pled guilty to aggravated assault. Tyler Almeida knew of the plan to assault Mr. Smith and played a role in aiding that plan. He has also pled guilty to aggravated assault.

[4] The Complainant, Mr. Smith, had been Mr. Gittens’ cellmate. The Crown alleges that Mr. Gittens knew of the plan to attack Mr. Smith and was the one who directed Mr Smith to attend at Cell 17. Specifically, the Crown relies on what Mr. Gittens allegedly told another inmate, Tariq Syed. Mr. Syed recently was deported to Pakistan.

[5] After a contested pre-trial application, it was ordered that the preliminary inquiry evidence of Mr. Syed was admissible under s. 715, and under the principled exception to the admission of hearsay evidence.

Factual Background

[6] The Crown and Defence filed three Agreed Statements of Fact. Counsel are commended for reaching agreement on several issues, which significantly shortened the time required for trial.

[7] The agreed facts are as follows:

(i) The incident occurred at the Toronto South Detention Centre in Toronto on June 22, 2017.

(ii) On that date, the victim, Mr. Anthony Smith, was assaulted by other inmates.

(iii) Mr. Anthony Smith suffered serious injuries and has a poor prognosis, as outlined in the letters filed from Dr. Alice Kam and Ms. Sarah Houghton. I have reviewed these letters which report that Mr. Smith has incurred very serious physical, cognitive and psychological deficits, such that Mr. Smith likely will never obtain paid employment or return to post-secondary school. He cannot drive a car. In short, Mr. Smith can no longer take care of himself.

(iv) As stated, Calvin Nimoh, Mahad Dahir, and Tyler Almeida have all previously pled guilty to aggravated assault.

(v) The surveillance video from the Toronto South Detention Centre adduced at the trial is admitted as fair and accurate.

(vi) The assault on Mr. Smith was intentional.

(vii) During the assault, Mr. Nimoh or Mr. Dahir stepped forcefully on the left side of Mr. Smith’s head, which caused some of the injuries he suffered.

(viii) Mr. Smith also suffered a laceration to the temple on the right side of his head.

(ix) Mr. Smith was unconscious upon the arrival of medical staff at approximately 9:10 p.m.

(x) There is no issue that the injuries are sufficient to constitute “wounding, maiming or endangering the life” of Mr. Smith.

(xi) The cells that the Crown has identified on video as being “Cell 17” and “Cell 10” are in fact Cells 17 and 10.

(xii) The cell occupancy list is a business record from the Toronto South Detention Centre and can be admitted for the truth of its contents.

[8] Given the admissions made, and that Crown and defence generally agree on the relevant law, the key issue is a factual one — what was Mr. Gittens’ knowledge and involvement in the assault.[^2]

[9] The Crown’s case is rooted in the evidence of Tyler Almeida, video surveillance and, in particular, the evidence of Tariq Syed.

[10] Mr. Almeida was housed in Cell 17 where the assault took place. His cellmate at the time was Tariq Syed. This cell is on the upper level of the B4A range at the Toronto South Detention Center.

[11] Mr. Almeida spent much of the day of June 22, 2017 with Mr. Gittens, either working out or playing the board game Ludi. After the Ludi game ended, Mr. Almeida was approached by Mr. Nimoh at least three times.

[12] Mr. Nimoh wanted Mr. Almeida to arrange for Mr. Smith to come to Mr. Almeida’s cell. Apparently, Mr. Nimoh thought that Mr. Smith was gay and wanted him off the range. Mr. Almeida’s evidence was that he expected Mr. Nimoh to give Mr. Smith a slap or two, enough for Mr. Smith to seek a transfer to another range. Mr. Almeida testified that Mr. Gittens was not present at any time that Mr. Nimoh spoke to him.

[13] In due course, Mr. Almeida did ask Mr. Smith to come into Cell 17 under the guise of helping Mr. Almeida move his mattress. According to Mr. Almeida, Mr. Nimoh was already inside Cell 17 and started assaulting Mr. Smith as soon as Mr. Smith reached Mr. Almeida’s bunk. Mr. Almeida then left the cell to return to the lower level, and as he left, Mr. Dahir entered the cell. Mr. Almeida stated that while downstairs, he heard the commotion from the upper range and returned to Cell 17. Mr. Smith appeared to be unconscious on the floor, as Mr. Nimoh was hitting him, and Mr. Dahir was standing by.

[14] It was Mr. Almeida’s evidence that Mr. Nimoh left the cell and Mr. Dahir instructed Mr. Almeida to help clean up the blood. Mr. Almeida and Mr. Dahir then put Mr. Smith on a bed in the cell. According to Mr. Almeida, Mr. Smith seemed “okay”, as though he had been knocked out.

[15] Apparently, the prison culture required that Mr. Almeida and others “stay solid”. This meant that Mr. Smith would remain in Cell 17 with Mr. Almeida, until he woke up from his knock out.

[16] Mr. Almeida’s further evidence was that he had no contact with his cellmate, Mr. Syed, after the assault on Mr. Smith and that he did not know where Mr. Syed went after the assault. That said, it is not in dispute that after the assault, Mr. Syed took the bunk in Cell 10, where Mr. Gittens was housed.

[17] Mr. Syed denied knowing that there was going to be an altercation in Cell 17. He stated that when he walked into that cell, he saw Mr. Smith on the floor, with blood on his upper body, face and hair. His evidence was Mr. Dahir told him to go downstairs to Cell 10, to keep his mouth shut, and that they would take care of everything.

[18] Consequently, Mr. Syed was in Cell 10 with Mr. Gittens for a period of some three to five days of lock down. According to Mr. Syed, Mr. Gittens told him that Mr. Nimoh and Mr. Dahir did not like Mr. Smith because he was gay, and that Mr. Gittens told him that he knew that they were going to beat up Mr. Smith. Mr. Syed’s evidence was that Mr. Gittens told him that he was the one who sent Mr. Smith up to Cell 17.

Analysis

[19] The Crown position is that Mr. Gittens’ knowledge and involvement has been established by the evidence of Mr. Syed and the video surveillance.

[20] The Crown submits that there are numerous points of corroboration of Mr. Syed’s evidence, such that his evidence should be accepted. Among other things, the Crown notes that:

(i) The cell occupancy list confirms that Mr. Syed and Mr. Gittens were together in Cell 10;

(ii) Mr. Syed’s evidence that Mr. Gittens told him the reason for the attack was because the others did not like that Mr. Smith was gay, and they wanted him to move to another range, is consistent with Mr. Almeida’s evidence about what Mr. Nimoh told him was the reason for the attack;

(iii) Specific details in Mr. Syed’s evidence that are confirmed by other evidence give it the hallmark of truth. By way of example, Mr. Syed testified that Mr. Gittens was eating a sticky bun that night, and Mr. Almeida testified that when he and Mr. Gittens were playing Ludi, they bet over a sticky bun; Mr. Syed testified that he had been sitting on the couch on the lower level of the range, talking to other inmates and playing chess, and that activity is shown on the video; and

(iv) Mr. Syed was not motivated by self-interest as he did not disclose to the immigration authorities that he had participated in this prosecution.

[21] The Crown further submits that the video surveillance supports the guilt of Mr. Gittens in that it shows, among other things, that:

(i) When Mr. Gittens is leaving the top level of the range, before the attack, while Mr. Smith is standing outside Cell 17, Mr. Gittens and Mr Almeida exchange an informed gesture, signaling that Mr. Smith had been brought up to Cell 17 (at approximately 6:24:20 on video time stamp);

(ii) When Mr. Gittens is going down the stairs, he and Mr. Nimoh interact on the stairs to confirm that Mr. Smith has been brought to Cell 17 (at approximately 6:24:22-26 on video time stamp);

(iii) When Mr. Gittens walks past Cell 17, he looks in, walks past again and ducks as he passes the window, which indicates that Mr. Gittens knows something is going on in Cell 17 (at approximately 6:24:47-6:25:04 on video time stamp); and

(iv) When Mr. Gittens is seen at the bottom of the stairs with other inmates, apparently laughing, his casual demeanor is consistent with him being aware of the beating (at approximately 6:25:23 on video time stamp).

[22] In assessing the evidence of Mr. Syed, I note the following:

(i) Mr. Syed, who had been a police officer in Pakistan for 16 years, denied that he ever broke the law or was involved in corruption or otherwise. However, by his own account, he knowingly obtained two fraudulent passports to enter Canada, one within 10 months of being deported.

(ii) Mr. Syed denied ever being involved in the commission of crimes against humanity while in Pakistan. However, he knew that in 2007 his refugee application was rejected on the basis that he was complicit in crimes against humanity. Further, in his evidence, Mr. Syed appeared to accept that the Federal Court confirmed the finding that Mr. Syed had been complicit in the commission of crimes against humanity.[^3]

(iii) Mr. Syed testified that he renounced Islam and converted to Christianity. However, Mr. Almeida’s evidence was that Mr. Syed had a prayer mat and that he had seen him reading the Koran some two times while they were cell mates. Also, somewhat questionable in my view is Mr. Syed’s evidence that he was threatened by someone in the Pakistani Consulate due to his conversion to Christianity.

(iv) According to Mr. Almeida, Mr Syed told him that he was in custody because he had been found in a house that was raided and someone had planted heroin in his jacket. However, by his own account, Mr. Syed was in custody because he had been caught trafficking cocaine and heroin to an undercover officer.

(v) Mr. Syed acknowledged that he helped the police with this investigation because he thought that it would assist him favorably with his own matters. He acknowledged that he was prepared to be a Crown witness provided he could be taken out of jail and put into some sort of protection, and that without such assurances, he was not going to say anything.

(vi) Mr. Syed acknowledged that he was very worried that he, too, would be arrested once he knew that Mr. Almeida had been arrested, given that the assault occurred in the cell he had shared with Mr. Almeida.

[23] Given Mr. Syed’s history, had this been a jury trial, the jury likely would have been cautioned with a Vetrovec[^4] warning to look for some confirmation of Mr. Syed’s evidence.

[24] The Crown submits that the confirming evidence is found in the videotape surveillance of range B4A. With respect, I am not persuaded that this is the case.

[25] Given the quality of the video, in the first instance it cannot be said beyond a reasonable doubt that the man seen going in and out of Cell 10, and then moving throughout the range, is Mr. Gittens. Mr. Almeida’s evidence was that he thought the man was Mr. Gittens, but that he could not be sure. He also testified that inmates often visit each other’s cells.

[26] However, even accepting the Crown’s evidence at its highest, that the man the Crown identifies on the video is, in fact, Mr. Gittens, the movements seen on the video do not confirm the evidence of Mr. Syed. The observations on the video — the fleeting gesture between Mr. Gittens and Mr. Almeida on the upper level of the range and the equally brief interaction on the stairs between Mr. Gittens and Mr. Nimoh — are too vague and ambiguous to draw the inferences that the Crown puts forth. Further, it was Mr. Almeida’s evidence that he heard noise from the assault when he was on the lower level of the range. As such, it is just as reasonable to infer that Mr. Gittens also heard the ruckus when he was on the lower level and ducked when outside Cell 17 because he wanted nothing to do with the activities in that cell, as it is to infer that he knew what was taking place in the cell.

[27] I have considered all of the evidence, the cornerstone of which is the evidence of Mr. Syed. There are issues throughout his evidence, namely inconsistencies between his evidence and that of Mr. Almeida, and live issues as to whether he was motivated to implicate Mr. Gittens because he was afraid of his own potential liability or to curry favor with respect to his own charges. When examining the videotape to confirm Mr. Syed’s evidence, the observations are equivocal in that, when the evidence is considered as a whole, other reasonable inferences, besides an inference of guilt, can be drawn from the portions that the Crown highlights.[^5]

[28] For all these reasons, I am not satisfied that the Crown has established beyond a reasonable doubt that Mr. Gittens did anything to help the perpetrators of the assault, Messrs. Almeida, Nimoh or Dahir, or that he intended to help the perpetrators.

[29] Mr. Gittens is found not guilty of Count 1.

[30] I am also not satisfied that the Crown has established beyond a reasonable doubt that there was an agreement between Mr. Gittens and any one or more of Tyler Almeida, Manad Dahir or Calvin Nimoh to assault Mr. Smith.

[31] Mr. Gittens is not guilty of Count 2.

Croll J.

Released: September 27, 2019

[^1]: R.S.C., 1985, c. C-46 [^2]: See: R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484; R. v. Root, 2008 ONCA 869; and R. v. Villaroman, 2016 SCC 33 [^3]: See: Tariq Syed and The Minister of Public Safety and Emergency Preparedness, 2006 FC 1163 [^4]: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 (S.C.C.) [^5]: See: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; and R. v. Gill, 2017 ONSC 3558, at para. 9