ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM.J.(P) 1864/19
DATE: 2021 04 19
B E T W E E N:
HER MAJESTY THE QUEEN
Cindy Nadler and Patrick Quilty, for the Crown
- and -
D.S.
Michael A. Moon, for the Defendant
HEARD: October 14, 15, 16, 19, 20, 2020, January 25, 26, 28, 29, February 1, 9, 10, and March 8, 2021
REASONS FOR JUDGMENT
PUBLICATION BAN
An Order has been made pursuant to s. 486.5 of the Criminal Code directing that the identity of the complainants and any information that could disclose such identity shall not be published or broadcast or transmitted in any way.
Fowler Byrne J.
[1] D.S. has been charged with committing an aggravated assault on M.T., contrary to s.268 of the Criminal Code of Canada, and with attempting to murder M.T., contrary to s.239 of the Code. Both offences were alleged to have occurred on September 23, 2017.
[2] The trial of these offences took place over 13 days, before a judge alone.
I. Elements of the Offences
[3] In order to find that D.S. is guilty of the offence of aggravated assault as against M.T., I must find that D.S. intentionally applied force to M.T., which M.T. did not consent to; that D.S. knew that M.T. did not consent to that force; and that the force applied wounded, maimed, disfigured or endangered the life of M.T..
[4] In order to find D.S. guilty of attempted murder, I must find beyond a reasonable doubt that D.S. stabbed M.T. in the ear and neck area and that D.S. meant to kill M.T. in so doing.
[5] The Crown must establish all the essential elements of these offences beyond a reasonable doubt.
[6] In the case before me, it is not disputed that M.T. was stabbed in the left ear and neck area on September 23, 2017. The issue that this trial must determine is if the Crown has met its burden and proven beyond a reasonable doubt that D.S. was the individual who stabbed M.T. If the Crown is able to do so, the court must then determine if the remaining essential elements of the two alleged offences have been made out beyond a reasonable doubt.
II. Facts
A. Evidence of the Crown
[7] D.S. had spent the night at “X MH Court in Brampton”, from the evening of September 22, 2017 to the morning of September 23, 2017. This was the residence of M.J., with whom he was in a romantic relationship. M.J. lived at this address with her son, who was 4 years old at the time. D.S. occasionally stayed over, but he still maintained a bedroom at his father’s house. M.J. indicated that on some nights, they stayed at D.S.’s father’s house. M.J. indicated that D.S. was the only man she was dating at that time.
[8] X MH Court in Brampton is located in a neighbourhood complex comprised of several rows of townhomes and having an outdoor basketball court and playground. M.J.’ unit is only two doors down from the playground and basketball court. Running behind M.J.’s unit is another street called “Brampton”, which also has townhomes and an apartment building. The homes on Brampton can be accessed from the playground and basketball area.
[9] On the morning of September 23, 2017, M.J. had plans to visit an apple orchard as a volunteer with the Boys and Girls Club. She left around 9:30 a.m. that morning when a bus came to collect her and others from the complex involved in the excursion. She had her cell phone with her for the entire trip. At trial, M.J. did not recall if D.S. had spent the previous night with her. Accordingly, the Crown brought an application to have part of her video statement to the police from the afternoon of September 23, 2017 entered as evidence, as a past recollection recorded. The application was granted, so the court may also consider M.J.’s statement given on September 23, 2017 that D.S. was at her home that morning and waved good-bye to her from her door at 9:30 a.m.
[10] M.T., the victim of the stabbing, lived at, X MH Court in Brampton, only a few doors away from M.J. M.T. states that he was at home that morning, having returned at approximately 6:00 a.m. from an all-night party.
[11] Sometime after returning home, M.T. went to visit his mother-in-law. It was an agreed fact that during that morning, before the stabbing, M.T. received multiple calls from phone number (xxx-xxx-xxxx). It is also an agreed fact that this phone number belonged to M.J. (“the M.J. Cell Phone”). M.T. indicated at trial that he received a call from the M.J. Cell Phone when at his mother-in-law’s home. He claims to have no recollection of when he went to his mother-in-law’s home, or how long he stayed. He also claims to have no recollection of how long it would take to travel to his mother-in-law’s home, by car or by walking, despite making this journey as he claimed, “two million-zillion times”.
[12] When asked to confirm the time of this call while at his mother-in-law’s home, M.T. was at first unwilling to commit to any time except to say that it was before noon. M.T. was then confronted with his evidence at the preliminary inquiry on this issue when he indicated that he received the call at 10:15 a.m. to 10:25 a.m. When pressed further on this evidence and his recollection, he indicated at trial that his best recollection now is that between 10:00 a.m. and noon on that day, he received the call at his mother-in-law’s home, he returned to his home, had an interaction with his assailant as detailed below, and was stabbed.
[13] The Crown presented no other evidence as to the exact time these calls were made. No cell records from the M.J. Phone or from M.T.’s cell phone were entered into evidence.
[14] From the time M.J. left on the bus, until which time M.T. was stabbed, the only evidence presented by the Crown of what occurred was from M.T. himself. M.T. stated that on the phone call, the assailant asked for money from a prior transaction. M.T. stated that the type of transaction was not specified, but the amount the assailant said was owed was only about $20 to $30. When M.T. returned to his home, he met up with the assailant, who he referred to by the nickname “B.M.” M.T. did not know B.M.’s real name, but said it was not unusual for people in his neighbourhood to only know each other by their nicknames. In fact, he was also known by a number of nicknames, including M.M. or D.
[15] It is not clear from M.T.’s evidence, but either he denied he owned any money to B.M., or else he paid it and then took it back. M.T. then met up with two other men who either lived in the housing complex or had family who did. They were talking about how B.M. used to look “clean and nice” and how he didn’t look so good anymore. B.M. said something to M.T., to which M.T. responded something to the effect of, "Listen to me, Bro, whatever you're doing stop using it. Stop taking it. If you're selling it, sell it. Stop using it.” M.T. said he did not feel it was a serious argument.
[16] M.T., the two other men and B.M. then proceeded to the basketball court. He and the other two men started playing “hustle” on the court, just grabbing the ball and shooting. B.M. was on the side of the court looking on. M.T. said that he had his back to B.M. and was trying to get a rebound. He did not see B.M. with a knife. He continued:
…And then when I jump for the ball, he poked at me, but my back was turned, he was behind me. And then the guy that's deceased now, he's the guy that says, "Why you're stabbing at the guy?" So by the time I could realize, that's when he stabbed me right here, and I went like this and I feel it, and then I run off. And like as I said, the basketball court facing this - the basketball court facing this way, because we have to enter from here to the basketball court. There's a fence right there, there's a fence right there, and we were right here. And when he stabbed me, I went like this, and then when I went like this, I saw him still coming at me, and then I ran across. Like, it's down a little slope like this, and run right across the garbage chute to a house, and I fell right here, and the lady then called the police for me.
[17] M.T. estimates that about 20 minutes passed between the time he first spoke to B.M. about the debt and the stabbing. M.T. referred to how he ran from the basketball court, down a slope and towards Brampton. He claims at one point he fell, and when he looked back, he saw the assailant was still chasing him. He got up and kept on running down Brampton. He adamantly denied he ever rested on any car when running away. M.T. stated that he could see the assailant. He continued,
And then when I looked behind me, I still see him coming with the knife. And he wasn't really that far from me. He wasn't near to me, but he wasn't that far from me. So then that's how I could recognize like what knife he used to do it, because I realized it was a – it wasn't like one of those steak - you know those little steak knife. I know it's a knife like that. And then I run. Meanwhile I'm running, I'm looking to see how far he is from me, and I start to bawl help and I went and I dropped on the lady's porch and the lady run out, and then the lady come out and like saw him coming up, and she run him back, and he turned back.
[18] M.T. indicated that the assailant was approximately 10 feet or three metres from him, similar to how far he was in the witness stand to this judge. From this distance he claims he could see what is in my hand, what I am wearing and see my hair. From the moment he was stabbed, M.T. was running away from the assailant.
[19] Evidence at the scene was gathered by Constable Paul Correia from the Forensics Identification Unit of the Peel Regional Police (“PRP”), after he arrived at 2:21 p.m. He took a number of photos. One photo showed a knife with a blue handle, located close to the basketball court where the incident took place. No other forensic evidence was presented with respect to the knife. His photos showed droplets of blood on the pavement of the sidewalk, which is between the basketball court and the townhouses on Brampton. The photos also showed droplets of blood on and around the driver’s side-view mirror on a parked car in the driveway of Brampton, which was across the street and down a bit from the home of CH, but would be the first townhouse on Brampton that would be encountered if coming from the basketball court. No evidence was given as to whose blood it was, but the trail of blood droplets is consistent with M.T. running from the basketball court area towards Brampton while bleeding. Constable Correia had no direct involvement with either D.S. or M.T. During the course of the police investigation immediately following the stabbing, a firearm was located in the MH Court area, namely in the bushes on the walkway behind M.J.’s yard. No forensic evidence was presented with respect to this discovery.
[20] As indicated, there were two other men present on the basketball court when the stabbing occurred. One man has since died. No evidence was presented regarding the other man, nor was he summoned as a witness.
[21] It is agreed that after being stabbed and running away, M.T. collapsed on the front porch of the residence at Brampton, in Brampton, Ontario. There were two witnesses on the porch at that time, CH, who lived at that address, and J.R. who was visiting. Both ladies gave evidence at trial.
[22] CH resided at Brampton in Brampton. On September 23, 2017, around noon, she was sitting on the front porch of her home with her friend, J.R. At that time, she saw two men running down a slope from a playground area at the end of her street, coming towards her. The man in front had blood all over his shirt. He stopped to catch his breath at a car parked in the driveway of the first house in the row closest to the park area. She does not recall if the man being chased actually touched the car, but later stated that he was braced or resting against the car. Another man was behind him chasing him with a knife in his hand. This man came no closer to her than around the parked car across the street. She described the knife as big, approximately 12 inches in length, but did not see a colour. She saw the man with the knife was only at most a foot away from the chased man and that he lunged towards the man resting. She screamed “NO!” which caused the chased man to start running again further down Brampton, and the man chasing him to run back towards the park. The man that was being chased, being M.T., ran a bit more, past approximately 6 houses, and yelled to her to call the police. He then turned around and ran to CH’s porch.
[23] At this time, CH did not know M.T., nor the man who was chasing him. She remembers that M.T. was wearing denim shorts and a white undershirt. She saw that he was bleeding so she called 911. The operator on the 911 call told her to apply pressure to the wound area in his neck and waited for the ambulance to come. CH described M.T. as very anxious and frantic when he came to her porch, with blood all over him. When she asked him who did this to him, he replied “[M.J.]’s boyfriend”. CH knew a M.J., as she was a friend of her daughter’s. She did not know who her boyfriend was.
[24] J.R. testified that on the date of the offence, she was sitting on the front porch of CH’ residence. When sitting there, she observed two men running. One man she described as light-skinned who was chasing a man who she described as dark-skinned. They were running from the direction of the basketball court beside MH Court. She observed the man who was chasing the other man raise his hand in a stabbing motion, but she barely saw a weapon. When the lighter skinned man got closer, the other man tried to run faster. When the man being chased got closer to her, she saw blood in the area of his ear. When he was on CH’ porch, he looked like he was going to pass out, so she and CH tried to keep him conscious. He could barely speak to them. They both stayed with him until the ambulance came.
[25] J.R. indicated that she did not know either man at the time of the event. She has only learned of M.T.’s name after the fact. She recalls the darker-skinned man, being M.T., yell to them to call 911. She had never seen the lighter-skinned man before. She did not pay any attention to what the lighter-skinned man was wearing, as her focus was on M.T..
[26] When M.T. was questioned about arriving on CH’ porch, his evidence was as follows:
Q [by Crown]. Now, when you get to the lady's residence on [Brampton], do you say anything to them or anything to her?
A. No, I just asked them for help.
Q. Do you remember if they said anything to you?
A. They just asked me like who stabbed me, and I could like tell them who stabbed me, because definitely I know who stabbed me.
Q. Who did you tell them....
A. I didn't know his name was whatever his name is. Kyon [sic] or whatever his name is. We didn't call him like that. We call him "[B.M.]."
Q. So you didn't know the person who stabbed you?
A. We don't know his name. I didn't know his name until I came to court or something like that. I don't, I don't remember, but it's just since like recently like when I got the paper the first, first time I came to court, that's when I know his name.
Q. You knew his nickname - you knew him by nickname at the time?
A. We gave him, we gave him that name around there, "[B.M.]."
[27] When in cross-examination the next day, M.T. claimed to not remember if CH asked anything and if he responded. He does not deny that it may have happened, he just did not recall.
[28] The call to 911 was made at approximately 12:06 p.m. Constable Simmons of the PRP received a radio call for service at 12:06 p.m. He arrived at 12:10 p.m. and was the only officer there. He located the victim at Brampton. He had a towel pressed to his left ear and neck area, and he observed a great deal of blood. He learned the name of the victim, but he does not recall how. He took statements from CH and J.R. C.H. reported that she was the individual that called 911. He stayed with M.T. until the ambulance arrived. When Officer Simmons arrived, he found M.T. pacing and in distress. While M.T. was not necessarily uncooperative, Constable Simmons observed that M.T. was very careful about what he said to him. Constable Simmons concluded that the pacing was due to adrenaline and M.T. did cooperate and sat when requested to do so by Constable Simmons. When the ambulance arrived, Constable Simmons asked M.T. if he knew who stabbed him. As a result of his response, Constable Simmons believed that M.T. knew who stabbed him, knew where the assailant lived, but did not know his name. Constable Simmons did not learn where the assailant lived.
[29] Constable Simmons indicated that someone told him that the knife carried by the assailant was about 12 inches long with a brown handle, but he does not know who gave him that information.
[30] It is also agreed that at 1:15 p.m., Constable Copeland of the PRP took a two page written statement from C.H.. In that statement, C.H. reported that when she asked M.T. who did this to him, he said it was “[M.J.]’s boyfriend.” This statement was admitted into evidence further to the Crown’s application to have it admitted as an excited utterance. As indicated, neither C.H. nor J.R. knew either the man chasing M.T. or M.T. himself at that time. They came to know M.T.’s name only after these events.
[31] M.J. testified that she has a memory of receiving a few telephone calls that day on her cell phone while away from the housing complex. She remembers getting a telephone call from D.S., but that it came through as a call from M., which is a friend of hers. It was D.S., but he was using M’s cell phone. While she had no recollection of the exact conversation at trial, she remembers feeling nervous after speaking to D.S. Given her lack of memory, the Crown applied to admit her statement made to the police later in the day on September 23, 2017 about the contents of that call, as a past recollection recorded. The Crown was successful. Accordingly, the court can consider evidence that M.J. got a call from D.S. that day, using M’s phone, about one hour before speaking to Constable Brad Imber of the PRP, in which D.S. told her that he was in a fight with someone with the same first name as M.T., that he loved her and that he would be leaving the neighbourhood. As detailed below, she spoke to Constable Imber at approximately 2:15 p.m. that day, making the approximate time of receiving that call to be 1:15 p.m.
[32] At trial, C.H. also gave evidence that about one and a half hours after the incident, she went to the Mac’s convenience store to purchase lottery tickets, which was about a five minute walk away. When there, she thought she saw the man who chased M.T. with a knife. She recognized him by the clothes he had on and his hair style. After returning from the store, she saw the police and they came to her door and asked her if she had seen him. She relayed that she was not sure, but she thought he was at the store “because he had on the same outfit” – a black shirt and black pants.
[33] In cross-examination, C.H. was shown her written statement to the police, which she had given and signed approximately 30 minutes after the incident. In that statement, she described the man chasing M.T. as 5’9’’ or 5’10”, skinny, black, wearing long shorts (which she described as basketball shorts) and a black t-shirt. When showed the exhibit which depicted what D.S. was wearing when arrested (being a grey t-shirt and black jeans), she agreed that this was not the same outfit that she has described to the police on September 23, 2017 and that the man who lunged at M.T. with a knife had been wearing basketball shorts and a black t-shirt.
[34] In re-examination, C.H. tried to explain the discrepancy between her evidence in chief at trial, her evidence in cross-examination and her statement to the police. She thought that maybe she was mixing up D.S. with M.T. who was wearing shorts, but was then was adamant again that the man chasing M.T. had on black pants and a black t-shirt and that was the man she later saw at the plaza one and one-half hours later. It is important to note that C.H. was not present when the police arrested D.S., and did not personally point out or identify D.S. to the police at the time of his arrest. At no time after was she asked to identify D.S. in person or through photos.
[35] At 1:54 p.m. that day, it is agreed that D.S. was located by police at a plaza at 51 McMurchy Avenue South, in Brampton, Ontario where the Mac’s was located. He had no visible injuries when he was arrested. This location was approximately 350 metres, or a four minute walk from Brampton. When arrested, he was wearing black jeans and a grey t-shirt.
[36] Constable Masse of the PRP also attended at Brampton on that day. He was asked to accompany M.T. in the ambulance as he was acting aggressively. He doesn’t know when the ambulance left the scene. Constable Masse observed that at 12:55 p.m., M.T. called his wife and told her he was in an ambulance on his way to a hospital on Queen Street. Constable Masse also observed that at 12:56 p.m., M.T. received a call on his cell phone and Constable Masse saw that the screen said “Dija”. He heard M.T. tell this person that he just got stabbed in the ear. Constable Masse then continued:
Q. [Crown] All right. What's the next time notation that you have in your notes after the call with Dija?
A. At 12:58, that's when I have a brief conversation with M.T.. That’s where he advises me of the phone number that I [sic] called him. He says whoever called him on that phone number called and said to meet him outside. He recognized the person. There was no arguments and the person had just stabbed him. He knew him by a nickname, but did not know his real name. And at that time, we arrived at the hospital.
[37] M.T. showed Constable Masse the phone number on the screen of the call he just received. It is an agreed fact that the phone number belonged to M.J.. M.T. had no recollection of this at trial. The ambulance arrived at the hospital at approximately 1:06 p.m.
[38] Meanwhile, Constable Imber waited for M.J. to arrive back from the apple orchard. He saw her get off the bus with a bag of apples at 2:12 p.m. She identified herself to Constable Imber and told him where she lived. At 2:14 p.m. she was arrested for unauthorized possession of a firearm in relation to the firearm found on the walkway behind her unit. Her cell phone, the M.J. Cell Phone, was seized at that time. She was advised of her rights to counsel and cautioned at 2:16 p.m. M.J. was handed over to Constable Yashnyk at 2:34 p.m. to be transported to the police precinct. Constable Imber gave the M.J. Cell Phone to Constable Yashnyk to bring back to the precinct.
[39] Constable Yashnyk was only involved in the events that day to transport M.J. to the precinct for the firearms offence. Other than to advise M.J. of her rights, she elicited no conversation with M.J.. Constable Yashnyk said that M.J. appeared nervous and made several statements to her. Constable Yashnyk had no knowledge of the stabbing incident, other than knowing that it had occurred, and she had no knowledge of who the victim was.
[40] Constable Imber left the scene at 3:10 p.m. and commenced his interview of M.J. at 3:56 p.m. at the precinct, which lasted until 4:44 p.m. After being questioned by the police in relation to the firearms, but more substantially about the stabbing, M.J. was released unconditionally.
[41] At some point, M.J. and D.S. were engaged, but no one was very clear on those dates, except that it was probably after the stabbing. M.J. and D.S. stopped dating in or around July 2018.
[42] M.T. remained in hospital for several days and claims to have had no visitors from the MH Court complex. He said he remembers his family and other friends coming as of the following Monday. He remembers he was told by some friends from outside the MH Court complex, while in hospital, that the police had arrested the assailant at the Mac’s store and that he had given himself up. It is possible that the police told him that as well, but he did not recall that at trial.
[43] M.T. was released from hospital by September 28, 2017, as that was when he made a formal statement with the police. There is no evidence of M.T. being asked to identify D.S. as the assailant, either in person or in a photo or video.
B. Evidence of D.S.
[44] At the close of the Crown’s case, D.S. elected to give evidence. His account of the events of that day divert significantly from those provided by M.T.
[45] D.S. testified in chief that he would frequently go to the MH Court complex to hang out with M.J. He agreed that at times their relationship was sexual, but he did not agree that they were “full blown boyfriend-girlfriend.” He knew her for about a year at the time of the stabbing. In cross-examination he remembered that he started seeing her in 2016 when he was released from prison on another offence. In his examination in chief he said he started seeing her on a more consistent basis for the last six months prior to the stabbing. In cross-examination, he said he started to see her more regularly for a few months prior to the stabbing because he said it was after his birthday, in July. He conceded that they were more than friends in September 2017.
[46] He indicates that since they met, they would both see other people. In particular, he states that in September 2017 he said he was seeing other people. He doesn’t know for sure, but he believes M.J. was also seeing other people at that time, as she was an exotic dancer and he was not sure what she was doing each night. He does believe they became engaged after the stabbing incident. He remembers this because he was out on bail for this incident and M.J. became pregnant. They became engaged because she was having his child. He believes this was around March 2018. He believes they may have become exclusive to each other when they became engaged, after the stabbing incident.
[47] D.S. testified that he was at the MH Court complex maybe two nights a week max in September 2017. He claims he didn’t know anyone else in the MH Court complex except those he met through M.J.
[48] He states that he did not own a cell phone due to a term of his probation in place at that time. He was able to use a cell phone, just not own one.
[49] D.S. admits that he spent the night prior to the stabbing with M.J. and was at her home the morning that she left to go apple picking. He states that at no time did he use her cell phone before she left. He recalls she left between 9:00 and 9:30 a.m. He said after she left, almost immediately he left and took the city bus from the MH Court complex to his parents’ house. He said he did not stay at his parents’ home very long – just enough to shower and change, maybe 15 minutes at most. Then he took the city bus to see his doctor, whose office was on 1221 Bloor Street in Mississauga. He believed it took him between 30 and 45 minutes to make that trip. He stated he had an appointment at 11:00 or 11:15 a.m. that day. The questioning continued as follows:
Q. [Mr. Moon] Okay. Now, what time was your appointment with the doctor, do you remember, generally?
A. [D.S.] I think it was around like eleven o'clock, eleven — maybe just after 11:00, 11:15.
Q. Okay. Did, did you get there in time for the doctor's?
A. Yes, I did.
Q. Do you have a, a recollection about how long you were there?
A. I was only there about 10, 15 minutes. It wasn't a big meeting — sorry, appointment.
Q. Okay.
A. It was just about 10 minutes.
Q. Okay. And then where did you go after you left your doctor's?
A. I was supposed to meet, I was supposed to meet up with [M.J.] again after she went apple picking in, in [MH Court].
Q. Okay. So what did you do when you left your doctor's?
A. I went on the bus and went back towards [MH Court].
Q. Okay. Do you have any idea of about what time you arrived at [MH Court]?
A. It would have been around noon.
Q. Okay.
A. And then it wasn't really [MH Court], it was McMurchy. I didn't, I didn't actually go into the complex, I just went into the — there's like stores outside [MH Court].
Q. Okay.
A. On McMurchy, where there's like a Mac's Milk. There's a pizza stop and there's a bar in there.
Q. Okay. And is — where is the bus stop in regards to this Mac's Milk or [MH Court]?
A. It's literally like right beside the, the store and [MH Court].
Q. Okay.
A. Literally like throw a stone how far — how close it is to the bar.
Q. Okay. All right. And where did you go when you — once you got off the bus?
A. I went to the stores. I went to, I think, Mac's Milk to get some candy first and then I went to the bar after.
Q. Okay. And, and what did you do in the bar?
A. I had like a drink and I was just watching the games that were on the TV, that were in the bar.
Q. Okay. What, what was your plan — well, did you know about what time [M.J.] was going to be coming back from apple picking?
A. She told me it was around maybe one o'clock, I think. I'm pretty sure that's what it was around, around one o'clock, maybe 1:30. It might have been later 'cause I was supposed to meet up with her.
Q. Okay. And so what was your plan?
A. Well, my plan was to wait for her to come home and then go, go back and spend some time with her, right?
Q. Okay. Where were you going to wait?
A. I was going to wait at the bar where I was, where I had the drink, right?
Q. Okay. Did you at any point come out of the bar?
A. Yeah, I, I believe two times for a cigarette.
Q. Okay. Did you have your own cigarettes?
A. No, I didn't.
Q. Okay. So where did you get a cigarette?
A. I got it from one of [M.J.]'s friends that was walking by with her boyfriend/baby father. They're on and off, but I know they're together, sometimes they're not. I got a cigarette — a couple cigarettes off of them.
Q. Okay. And where did you see them or meet up with them?
A. It was basically like the — in front of Mac's Milk, there's a parking lot and that's the only separation between the bus stop and the Mac's and basically they were leaving the Mac's and I seen them from the back, as they were leaving the Mac's and I shouted out to them to say hello.
Q. Okay. Did you spend any time with them at all?
A. Yeah, I did. We, we sat — we didn’t sit, but we just stood there and had a conversation about a few things.
Q. Okay.
A. Yeah, about a couple things.
Q. All right. Did — was there any — do you recall any of the conversation that you had with them at all?
A. I remember asking if they seen, if they seen [M.J.] back yet. They said, they said they're not sure and then I'm pretty sure that — no, I am sure that — actually, when she said that, [M.J.] wasn't back yet, I asked her, can I use her phone to call [M.J.]?
Q. Okay. And when you had — did you speak — were you able to get a hold of [M.J.] on the phone?
A. Yes, I was.
Q. Okay. Do you recall any of the conversation that you had with [M.J.] on the phone?
A. Yes, I do.
Q. And can you relate it to the court, please?
A. Okay, well, basically, I called her first to ask her if she was home, first of all, because I wasn't sure if she was there or not and neither was her friend. She told me she was not home and that she was — she should be home soon and she wanted me to wait for her because she didn't want me to leave and then not come back and not spend the day with her.
Q. Okay.
A. And basically I had a conversation with her friend about, there was a lot of commotion in, in the complex behind them and I remember asking them what's going on and they related to me that there had been a fight. A bad fight. And there was some, some police in the neighbourhood. So I just related that message to [M.J.], saying that I'm just, I'm just going to hang out at the bar and wait for her because there's a lot of police in the neighbourhood and there was a big fight or something. So that's what I told her.
Q. Okay. Did you know any of the particulars of this fight?
A. Particulars? No I didn't. I didn't — at the time, I didn't know any particulars about the fight, no.
Q. Okay. Who told you about the fight?
A. Her — it was the friend I was talking to. Her name's [her friend] (ph).
Q. Okay. And so you had this conversation — was it — whose phone were you using...
A. It was [her friend]'s...
Q. ...to call?
A. ...phone.
Q. All right. And once you were done with the conversation, what did you do?
A. You mean like after, after I was done hanging up the phone?
Q. Yes.
A. I went back into the bar, after the — my cigarette was done.
Q. Okay. And did you go anyplace else other than the bar?
A. No. Like I said, it was only for the cigarette. That was the second time I went out the back door to have a cigarette in the back of the, the bar area. Basically, the bar has two doors. It has a front door, which it leads to the front where the storefronts are. And then it has a back door where it has like a couple chairs, so people can have their cigarettes in peace, so they can just sit there and have their cigarettes.
Q. Okay. So did you go outside to have your second cigarette at some point?
A. Yeah, I did. A little bit after. I'm not sure how long though.
Q. Okay. And can you describe what happened when you went outside for your second cigarette?
A. Oh, man. Well, basically, I seen like a big — I'm pretty sure it was like a black Ford truck. I'm pretty sure it was black, don't quote me on that, but it was a Ford truck that came flying around the back of the bar and it came in so fast it startled me. And at first I didn't know what was going on and [indiscernible] like a special detective, like a special enforcer police, not the regular outfit and he's screaming, "Yo, get down, get down, get down." So I got down on the ground.
Q. Okay. Did you have any idea why they were telling you to get down on the ground?
A. No, I just seen all the, all the dogs and guns and I didn't ask questions. I just laid down on the ground.
Q. Okay. They had guns drawn?
A. They had guns drawn, yes.
Q. Okay. Did you comply with them?
A. Yes, sir.
[50] D.S. denies ever having the nickname B.M. He claims his nickname is J., which was tattooed on his arm about 13 years ago. D.S. claims that the only other nick name he had was “[P.]” which was given to him by M.J. and was only used by her and her son. There is no other evidence that D.S. has been referred to as “[B.M.]”.
[51] When cross-examined on his actions the morning of September 23, 2017, D.S. claims that he took the city bus to his parents’ house to shower and change which he believes took no more than 15 minutes. He then took public transportation to his doctor’s office located at 1221 Bloor Street in Mississauga, which required him to use three different bus routes. He recalls using the Zum bus, which doesn’t stop at all stops. He said while at the doctor’s office, he ran into a friend from high school named David, who drove him to Square One on the way home. From there he took the city bus back to the plaza beside MH Court. He doesn’t know David’s last name or where he lives.
[52] The Crown spent some time with D.S. reviewing the possible bus routes he could have taken to get back to his place, then to his doctor’s office in Mississauga, and then back to the plaza beside MH Court by noon, as he testified. D.S. would not agree that it was not possible, claiming he knew all the bus routes and knew how to get around in a timely manner. He does not remember why he didn’t bring fresh clothes with him to M.J.’s to go to the doctor. He then concedes he might have gone back to his Dad’s place to pick up a welfare cheque he does not recall, but he is sure he also changed his clothes.
[53] When they were going through the bus routes, D.S. indicated that he would have been trying to move fast because he had a short amount of time to get to his doctor’s office because he had an appointment. He further stated,
Q. Do you remember what time your appointment was?
A. Like I told you, it was around 11:00, 11:15, give or take. I — to tell you the exact time, I can't tell you that, but it was around that time in the morning. I think 11:00.
[54] In cross-examination he changed his testimony somewhat to say that he was not sure the time he got back to the plaza. He remembers speaking to her friend and the man she was there with. Her friend lives in the MH Court area. He is not sure how long after he got back there before he saw her friend. He is also not sure if he saw the commotion at MH Court. He remembers seeing people gathered on the sidewalk but he couldn’t see into the housing complex from where he was. He said he was not sure who told him, her friend or the man that was with her, but he learned there was a big fight involving a couple of guys and there were a lot of police around. He remembers having this conversation before he spoke to M.J. He does not remember the exact words he said to M.J. when he used her friend’s phone, but he remembers asking her about when she was returning, that he was not in the complex himself but close by, and that there was a big fight in the neighbourhood. Then he said he could not remember specifically if he brought up the commotion or if she did. He heard M.J.’s evidence and he thinks she was a bit mixed up because he told her that he was not leaving the neighbourhood and there was a big fight with a guy in the neighbourhood. He doesn’t think he said M.or M.T. If he did use the name M.T, it would have been something he learned from M.J.’s friend or the man that was with her. He doesn’t remember it, but it is possible that he told her that he loved her.
[55] D.S. claims that as of September 2017, he did not know M.T., didn’t know his name, couldn’t point him out in a crowd or restaurant or if he randomly walked by on the sidewalk. He denies ever playing dice with him, never chitchatted with him. He doesn’t know if he ever passed him in the complex, that he would know who he was. He denies having a fight with M.T. or calling him on a cell phone that day.
[56] He denied being high on drugs on that morning and denies being an extensive drug user.
[57] With respect to his attendance at his doctor’s office, his evidence changed somewhat after the Crown indicated that they wanted to subpoena the doctor’s records to confirm D.S.’s attendance. He then denied that he said he definitely had an appointment, but rather it was possible that he was attending the walk-in clinic of his doctor’s office. Before he was aware of the Crown’s intention to subpoena the records, he said he definitely saw Dr. Gitterman and requested an update for his prescription or to sort out his prescription for mental health drugs. Later he stated that he was not sure what the doctor did, but the next time he went to get his prescription filled, all was okay.
[58] The Crown requested and was granted a short adjournment in order to subpoena the doctor’s notes. The next week, the cross-examination of D.S. continued. After reviewing the records subpoenaed, D.S. agreed that there was no record of him attending the appointment with Dr. Gitterman or another doctor at the office that day. Nonetheless, he insisted that he never said it was definitely an appointment but that he was not sure. He still maintained that he was at the doctor’s office the day of the stabbing.
C. Reply Evidence - Dr. Wayne
[59] The Crown successfully applied to call reply evidence with respect to D.S.’s alleged attendance at his doctor’s office on September 23, 2017 between 9:30 a.m. and 12:06 p.m. that same day.
[60] The Crown called Dr. Andrew Wayne. Dr. Wayne took over Dr. Gitterman’s practice in 2019 when Dr. Gitterman retired. It started as a locum position and became permanent in January 2020. He confirmed there was a walk-in clinic on Saturdays when he started in 2019. He confirmed a doctor’s obligation to keep records of all attendances and keep them for a period of 5 to 10 years. He confirmed this obligation existed whether there was a formal appointment or walk-in appointment. If a patient comes in to either obtain or discuss a prescription, there would be an obligation to make a record of that visit. He also confirmed that he has access to all records for Dr. Gitterman’s patients.
[61] Dr. Wayne stated that there is no record of an appointment for D.S. on September 23, 2017. There is no record that he missed an appointment on that day. In 2017, he only had a record of an appointment on January 16, October 27 and December 6.
[62] In cross-examination, Dr. Wayne conceded that if D.S. attended and no one documented anything, there would be no record of the visit. Dr. Wayne also said there was a system to see who checked in for an appointment or a walk-in, but he did not know how to access this record for 2017. He conceded that theoretically, D.S. could have attended, but there would be no record. His recollection though, is that Dr. Gitterman kept a lot of notes.
[63] Mr. Moon then sought a full copy of D.S.’s medical records for 2017 and the evidence of Dr. Wayne was adjourned until the next day at noon. When his cross-examination resumed, Dr. Wayne confirmed there were notations of three appointments in 2017. On January 16, 2017, D.S. did not show up. There is a record of an appointment on October 27, 2017, but the record itself says the appointment date was October 28, 2017. Dr. Wayne explains that the appointment date populates when the note is made so it could have been that the note of the October 27, 2017 appointment was made the next day. There is also a notation for the December 6, 2017 appointment.
[64] Dr. Wayne stated he could not say for sure that D.S. did not come in on September 23, 2017, but he can confirm that no medication was prescribed that day. He agreed that the records show a history of mental health issues since 2016 and that Dr. Gitterman had prescribed medication for this since 2016. He also conceded that if the medical computer system was done, a paper prescription could have been given, and one would have to check with the pharmacy to see if it was filled. If the system goes down and comes back in a reasonable time, they would enter the electronic record, otherwise they keep it handwritten and it would go in the patient chart. He confirmed he had access to D.S.’s handwritten chart as well and there is no record on September 23, 2017.
III. Issues
[65] The following issues must be determined:
a) Has the Crown proven beyond a reasonable doubt that D.S. stabbed M.T. on September 23, 2017?
b) If it has, did D.S. commit an aggravated assault or did he try to murder M.T.?
IV. Analysis
A. Identity of the Assailant
[66] D.S. denies he is the assailant. He does not indicate who stabbed M.T., but states he was either on a bus or at a bar in a strip mall next to the MH Court complex at the time of the stabbing. Accordingly, the credibility of D.S. and the other witnesses is a key issue before this court.
[67] The law is clear. If this court accepts the evidence of D.S., he must be acquitted. If this court does not believe the evidence of D.S., but is left with reasonable doubt by it, he must be acquitted. And finally, even if this court is not left in doubt by the evidence of D.S., it must still determine, on the basis of the evidence that it does except, whether it is convinced beyond a reasonable doubt by that evidence, of the guilt of the accused: R . v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758.
i. Evidence of D.S.
[68] I have considered the evidence of D.S. and do not find it to be credible. His evidence does not establish his guilt or innocence beyond a reasonable doubt. I make this finding for a number of reasons.
[69] First of all, despite his insistence that he was at his doctor’s office around 11:00 a.m., his doctor’s office has no evidence that he actually attended on that day. While I accept the doctor’s appointment is not his alibi, it is part of a narrative that puts him outside of the MH Court complex from approximately 9:30 a.m. until after the stabbing occurred. The records subpoenaed from Dr. Gitterman’s office show clearly that M.T. did not have an appointment. The clinical notes and records show no notations on that day or any day until at least a month after. It is conceded that Dr. Wayne, who took over Dr. Gitterman’s practice, cannot say with any certainty that D.S. was not there. Nonetheless, the lack of notation of his visit, in light of record-keeping obligations of the medical profession, makes D.S.’s appointment highly unlikely, to the extent that it does not provide reasonable doubt as to D.S.’s guilt.
[70] In addition, D.S. was very clear in his examination in chief that he had an appointment at 11:00 or 11:15 a.m. When advised that the Crown would be subpoenaing his attendance records, his evidence changed somewhat to say that he does not know if he had an appointment or simply went into the walk-in clinic. Nonetheless, Dr. Wayne was clear that Dr. Gitterman or any associate is obligated to make a note, whether or not the patient is there for an appointment or to attend the walk-in clinic.
[71] Thirdly, I find that timing of his trips that morning by public transportation to be unlikely. While I concede that there is no direct evidence of the bus routes and timing for September 23, 2017, common sense tells us that it would highly unlikely that D.S. could have taken a bus back to his father’s house, showered and changed, take three buses to his doctor’s office in Mississauga, meet with his doctor for 10 to 15 minutes, and then take public transportation back again to the MH Court complex in Brampton by noon that day, all within 2.5 hours. This transportation narrative provides D.S. with his alibi, either putting him on a bus at the time of the stabbing, or else putting him back to the plaza by noon, allowing him enough time to buy candy at Mac’s and then be seated in the bar at the time of the stabbing. While his alibi was not disproven, I find it unlikely.
[72] Finally, I take note of D.S.’s failure to make a timely disclosure to the prosecution that he was at the plaza at the time of the incident. Had he done so, the police may have taken additional steps to investigate that account, such as interview other witnesses at the scene, or securing video surveillance if it was available. Almost 3.5 years have transpired since the stabbing before he gave this account of his whereabouts, likely making any further investigation fruitless. Accordingly, I draw an adverse inference from his failure to disclosure his alibi in a timely manner: R v. Skeete, 2017 ONCA 926, at para. 229; R. v. Hill, 1995 CanLII 271 (Ont. C.A.), at p. 12.
[73] Accordingly, D.S.’s evidence of his attendance at the doctor’s office, and the public transit odyssey he undertook that day, considered along with his subpoenaed medical records and the evidence of Dr. Wayne, and his late account of his whereabouts, all lead this court to reject his evidence as not credible.
ii. Remaining Evidence
[74] The Crown’s evidence in relation to D.S.’s whereabouts that day, and the identity of the assailant comes from four witnesses: J.R., C.H., M.J. and M.T. This evidence must be analysed to determine whether it raises a reasonable doubt as to D.S.’s guilt of the offences.
J.R.
[75] J.R. did not witness the stabbing, but did witness the chase. Unfortunately, she could in no way identify the chasing man, other than to vaguely describe him as a “light-skinned man”. She claimed to not know either of the men. She was not asked to identify the assailant. While honest, her evidence does not assist the court.
C.H.
[76] I found C.H. to be credible and forthright. At the time of the assault, she knew neither party. She observed the chase and the attempt of the assailant to stab M.T. again. She acted as a good citizen in trying to prevent a further attack and in assisting M.T. I accept that she asked M.T. who attacked him, and I accept her recollection of what he said. Her evidence at trial is consistent with what she told Constable Simmons that day only a half hour after the events.
[77] With respect to C.H.’S observation of the assailant at the store later, unfortunately I find CH’s evidence on this point unreliable. While I accept that she was honestly trying to recollect what she observed, her evidence at trial was different from her statement made on the day. She accepted the suggestion of defence counsel that the clothing the assailant was wearing at the Mac’s store was different than the clothing D.S. wore when arrested. She then insisted in re-examination that the assailant was wearing black jeans and a black t-shirt, with no understandable explanation of the change in evidence. It is an accepted fact that D.S. was wearing black jeans and grey t-shirt when arrested. In addition, it is an agreed fact that on the date of the stabbing, D.S.’s height was approximately 6’2”. In her statement, C.H. described the assailant as 5’9” or 5’10”. That being said, it would be hard to provide an accurate description of the height of a man who you witnessed across the street running. I also note that it may be difficult to accurately describe any characteristics of someone who is running across the street. Most importantly, C.H. was not present when the police arrested D.S. There is no way to know if the man she described to the police was the man they actually arrested at the plaza. She was never asked to verify his identify after he was arrested. Accordingly, although honest, I find her evidence on the identification of D.S. as the suspect is unreliable.
M.J.
[78] M.J. did not witness the stabbing but her evidence is important in three respects. First, given that C.H. was told that “[M.J.]’s boyfriend” was the assailant, we need her evidence on the nature of her relationship with D.S. Secondly, given the Crown’s evidence on phone calls made from the M.J. Cell Phone, we need her evidence of the use and whereabouts of the M.J. Cell Phone. Finally, further to the Crown’s application, M.J.’ evidence as to a phone call between her and D.S. was admitted into evidence. The credibility of and weight to be put to that statement is to be considered.
[79] M.J. indicated that at the time of the stabbing, she and D.S. were in a romantic relationship, and that she was seeing no other men. She also said that she did not know if he was exclusive with her. They were engaged at some point. Although not clear, it appears to have been after this incident.
[80] The relationship ended in or around July 2018. The relationship is so strained that at trial, on consent, she was granted leave to give evidence by video link from outside the courtroom, with a support person. At trial, she claimed that she could care less if D.S. “rotted in hell”.
[81] On the point of her relationship with D.S., I see no reason to reject M.J.’ testimony. Her evidence, the evidence of D.S. and the evidence of M.T. was that D.S. was hanging out more frequently with M.J. in the last few months prior to the stabbing. Nonetheless, I don’t put any significant weight to her perception of the relationship. It is M.T.’s perception of it that is relevant.
[82] With respect to the calls from the M.J. Cell Phone, M.J.’s evidence on this point gives the court some pause. M.J.’s evidence was that on September 23, 2017, she left her home at approximately 9:30 a.m. Other than the evidence of D.S., no other evidence was given on this time. M.J. was clear that she had her cell phone with her the entire time. This is corroborated by the evidence of Constable Imber, who actually seized the M.J. Cell Phone from M.J. when she got off the bus at approximately 2:14 p.m. that day. Accordingly, I accept that M.J. had her cell phone with her the entire time between when she left for the apple orchard and when she returned.
[83] It is an agreed statement of fact that a number of calls were made by the M.J. Cell Phone to M.T. the morning before the stabbing. There is no agreement as to the time of these calls. M.J. testified that she made no phone calls to M.T. that day. Nonetheless, M.T. insisted that he got a call from the M.J. Cell Phone at 10:00 a.m. or after, which was when she was on her was to the apple orchard with her phone. Her denial of calling M.T. that day does not seem plausible.
[84] We also know that M.T. received another call from the M.J. Cell Phone while in the ambulance ride to the hospital, which Constable Masse observed at 12:56 p.m. We know that the M.J. Cell Phone was with M.J. at that time because it was seized approximately 20 minutes later by Constable Imber. Constable Masse heard M.T. say to this caller that he was stabbed in the ear. The court infers from this that M.J. called M.T. at 12:56 p.m. that day and received that information. Accordingly, she was again not truthful when she said she did not call M.T. that day.
[85] Accordingly, the court finds any of M.J.’ evidence with respect to the use of the M.J. Cell Phone to not be credible.
[86] Finally, as a result of the Crown’s application, the court is to consider M.J.’s evidence of a phone call between her and D.S. sometime after the stabbing. In particular, it is M.J.’s evidence that about one hour before speaking to Constable Imber (which started at about 2:14 p.m. that day), she got a call from D.S., who called using her friend M’s cell phone, her friend’s name showing up on her cell phone screen. In that call, he told her that he had got into a fight with someone with the same first name as M.T., that he loved her, and that he would see her later.
[87] I do except that a phone call was made that day by D.S. to M.J., using the cell phone owned by M. She advised Constable Imber of it almost immediately after she returned home that day. Even D.S. agreed that the call was made from this cell phone.
[88] With respect to the contents of the call though, this court now doubts the reliability of the statement she made. The video statement to the police was taken between 3:56 p.m. and 4:44 p.m. on the day of the stabbing. Although the police officer questioned her with respect to “[M.M.]”, Constable Imber testified that M.J. never mentioned “[M.M.]” but only “[M.]”. He conceded that he questioned her about “[M.M.]” in error. Even M.J., who claims to have no memory of this interview, now believes that no name was mentioned in her phone call with D.S. At trial she stated that she believes D.S. to be monster, but a “calculating monster” that would not give any name over the phone. Her evidence at trial is that she only recalls mention of a fight in their phone call and nothing more.
[89] We also know that M.J. has a history of dishonesty that pre-dates this statement. At first, she denied to defence counsel making any income selling drugs. Then when confronted with her evidence at a preliminary inquiry on another matter wherein she admitted to selling cocaine for about 10 years, she conceded it to be the case, but then claimed she was not doing so in September 2017. M.J. did concede to not declaring her drug dealing income on her income tax returns. In re-direct, she indicated that she sold drugs to support herself as a single mother.
[90] At the time this evidence was given on September 23, 2017, M.J. was facing charges relating to a firearm, although Constable Imber was more interested in the stabbing. She was aware that her cell phone had been seized, which had a record of many calls made to M.T. earlier that day. She was nervous and upset, understandably. Her statement now that D.S. would not have mentioned anyone in the call, if accepted, may be helpful to the accused’s defence but may also be helpful to her given the connection of the M.J. Cell Phone to the crime.
[91] Accordingly, after reviewing this evidence along with the other evidence at trial, I will give little weight to M.J.’ evidence about the contents of the call.
M.T.
[92] M.T. maintains that he was stabbed by the Defendant. Given that D.S.’s evidence was rejected, it must be determined if M.T.’s evidence as to the identification of D.S., establishes D.S.’s guilt beyond a reasonable doubt.
[93] M.T. has testified that D.S. is not a stranger to him. Accordingly, he is able to identify D.S. as his assailant because he is known to him. This has been referred to as recognition evidence. Recognition evidence is a form of identification evidence, and accordingly, the same caution must be taken in consideration its reliability: R. v. Olliffe, 2015 ONCA 242, at para. 39. Any identification evidence must be given scrutiny, particularly when there is not a single item of confirmatory evidence which could minimize the inherent dangers of eye-witness identification: R. v. Miaponoose, (1996) 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), at para. 13.
[94] The weight to be given to identification evidence will vary according to the circumstances of the case. As stated in R. v. Smierciak, (1946) 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.), at pp. 157-158, as followed in Miaponoose:
The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person.
[95] An excellent summary of the factors to consider is set out in R. v. Thind, 2018 ONSC 1607, at para. 91-93:
[91] Recognition evidence, as “a subset of eyewitness identification evidence, in which the eyewitness’ identification is based on prior experience”, generally engages the eyewitness describing, as a foundation for his or her opinion/conclusion, prior familiarity with the subject preceding the relevant date of observation. The eyewitness’ degree or level of familiarity with the identified person may, given the specific circumstances of a case, serve to enhance the accuracy of an eyewitness’ identification. Be that as it may, the same caution and concerns applying generally to identification evidence are relevant as well to assessment of recognition evidence.
[92] In assessing the ultimate reliability of an eyewitness’ identification, a trier of fact considers the whole of the circumstances including confirmatory evidence, and, in relation to the particular witness’ evidence, a trier will have regard to a number of relevant factors including:
(1) the natural human inclination of viewers, since perception and memory are selective processes, to fill in perceived events with other details, a process enabling presentation of a logical and coherent account largely driven by past experience and personal expectations.
(2) the duration of the eyewitness’ opportunity to observe the subject of the identification – simply “fleeting” or qualitatively more sufficient.
(5) in instances of purported recognition evidence, whether the eyewitness’ trial evidence provides only a general, generic and non-specific description of a person which purportedly triggered identification of the subject from the earlier occasion as opposed to recounting idiosyncracies, unique or special characteristics;
(6) whether the eyewitness’ reported identification is the product of an independent process untainted by influence or contamination from a second eyewitness: Davy, at para. 4.
[93] An eyewitness’ in-court identification of an accused at trial as the person previously observed is, standing alone, of negligible, or no, probative value given the suggestive circumstances of the courtroom setup and the potential influence of the witness having seen the accused, given his or her compelled appearance, at the trial or preliminary inquiry or other related proceedings.
(citations omitted).
[96] There are a number of instances, after being stabbed, that M.T. had an opportunity to see his assailant. The first was upon immediately being stabbed. At this moment, M.T. said he turned to see the assailant was still coming at him, so he took off from the basketball court towards the park and Brampton. He stated that he also fell down at one time and looked back to see the man still pursuing him. He told the court that the assailant was approximately 3 metres or 10 feet away. C.H. said she saw the assailant about a foot away from M.T. when he was at the car across the street, but M.T. denies that occurred.
[97] M.T.’s identification of his assailant is not based so much on his identification at trial, but rather that he knew D.S. from around the housing complex and that he knew who he was, irrespective of whether he knew his proper name. He claims to have had a conversation with him right before the stabbing.
[98] M.T. stated that he knew this gentleman by the name of B.M. He stated most folks in the neighbourhood were known by nicknames. He knew that he was spending time with M.J. because his friend is the father of M.J.’ youngest child. When his friend moved out, B.M. was around more. He would not identify him as a friend, but just someone he knew from around the neighbourhood. In particular:
MR. QUILTY: Q. How well did you know the individual that you're referring to as "[B.M.]"?
A. Not that we sit and eat or drink together, nothing like that. It's just like we know him from, from the girl he was dating, or the girl he was staying with. That's how we knew him.
Q. And who is the girl he was dating or the girl he was staying with?
A. I think her name was [M.J.] or something like that. Because the girl, this is how I knew the girl, because her kid is my bredren's son. The same kid that he beat, that's my bredren's son.
Q. Who's – sorry, I didn't....
A. The way how I know the girl because her baby, the kid that she had, one of her kid, the last one, it's my friend's son. So that's how I know the lady.
[99] When asked the first time he had met B.M. and when B.M. came into the complex, M.T. replied it was a couple of months prior to the stabbing. He was unable to say how often he saw him, except to say that he would only see him if he was outside for some reason. M.T. claimed he both saw and had interactions with B.M., but could not recall when they occurred. He would not say that he saw him often, or rarely, but only “sometimes”.
[100] Finally, in re-examination, when asked about who stabbed him, he answered as follows:
Q. [Crown] And, just to clarify, when you told the police or whoever else you told, and you told the court that the person who did this was [M.J.]'s boyfriend; who, who are you referring to?
A. I'm talking about [B.M.] as in the guy that I'm looking at in front me right now.
MR. QUILTY: And, for the record, identifying the accused.
[101] It is of note that one of M.T.’s first comments when sworn in to give evidence was to ask who was on the video screen. D.S. and his counsel Mr. Moon were identified to him at that time.
[102] It is not contested that at no time after the stabbing was M.T. asked to further identify D.S. either in person or by photos or video.
[103] M.T. is sure of the identity of his assailant, based on his seeing him around for a couple of months prior to the stabbing. He has no specific recollection of how often, or the nature of the interactions, other than to describe their discussions the morning of the stabbing. He never hung out with D.S. socially, never shared a meal with him. M.T.’s evidence was that he was in Jamaica before the stabbing, so he was not able to observe D.S. then. It is clear, and I find it as a fact, that his recognition of D.S. has more to do with D.S.’s association to M.J., with whom M.T. is well acquainted, being almost neighbours for many years, and having the father of her youngest child as a common acquaintance. In fact, that is how D.S. is identified by M.T. to C.H., not as “[B.M.]”, but as “[M.J.]’s boyfriend.”
[104] It is difficult to say with any great certainty how this type of casual knowledge, through mutual acquaintances, would ensure a reliable identification. Each person is different as to how well they remember faces, characteristics and mannerisms of other people whom they see in passing, “sometimes”, as M.T. indicated. That is why identification evidence must be treated with some scrutiny.
[105] The difficulty the court has with accepting this identification in this case is not so much the reliability of it, which at first glance appears reasonable, but the lack of credibility on the part of M.T. in so making the identification. In most other aspects of M.T.’s evidence, this court has concerns about his credibility and his desire to be forthright with this court. To accept his identification evidence would mean to accept that one part of his evidence to the exclusion of most else. While this is the more crucial part of his evidence, when it is viewed along with all the other evidence, and lack of evidence, it establishes a reasonable doubt as to D.S.’s guilt.
[106] M.T.’s evidence over the course of two days was at times unclear and contradictory. He also was purposively evasive in answering questions that he did not think relevant or that were not in his own interests.
[107] With respect to his evidence about the morning before the stabbing, M.T.’s evidence was that he received a call from D.S. while at his mother-in-law’s home. He thinks it was 10:15 a.m. or 10:25 a.m., but definitely between 10:00 a.m. and noon. This caused him to return to his home. This, in and of itself, raises concerns. We know M.T. received a number of calls from the M.J. Cell Phone but it is uncontradicted that M.J. left with the M.J. Cell Phone at approximately 9:30 a.m.
[108] In cross-examination, he stated he left his mother-in-law’s home because he got a phone call, but doesn’t recall when. He did not remember the number that called, but when asked who was on the call he said “the guy in the yellow shirt” – referring to D.S. on the videoconference screen. Then, in cross-examination M.T. was shown his evidence at the preliminary inquiry in this matter, wherein he was asked if he ever spoke on the phone with D.S., to which he had replied “no”. When asked to explain why he answered differently at trial, he tried to explain that there is a difference between a brief exchange (which is what he meant by “no”) and a lengthier conversation. When having to concede that his answer at trial was different, he responded, “what float…whatever float your boat man.”
[109] Most importantly, it is also M.T.’s evidence that the person he spoke to on the phone, that caused him to go back to his home, is the same man he carried on a conversation with about the debt back at the housing complex, and then was the same person who wandered down to the basketball court with him and two others and then stabbed him. This does not make any sense given that he reported the call to have taken place after M.J.’s Cell Phone was in the possession of M.J. on the way to the apple orchard.
[110] This court is also concerned about M.T.’s desire to give full and honest testimony with respect to anything he felt was detrimental to his character, or more importantly, relating to M.J.
[111] First, M.T. failed to appear when summoned to attend on October 13, 2020. He did warn the officer that he would not be there as he was attending a funeral in Jamaica. He was advised that he had to come to court and that they would try to accommodate the funeral date. Nonetheless, M.T. did not attend. The trial had to continue with other witnesses and a material witness warrant was issued for M.T. M.T. was arrested upon his return to Canada on some weeks later and released on his promise to appear to give evidence when the trial continued in January 2021.
[112] Second, M.T. was particularly evasive and obstructionist in cross-examination. He refused to tell Mr. Moon if his wife and children lived with him at X MH Court. He said, “my wife and kids are not involved in this” or “no comment”. He refused to answer if he had been at a party the night before. Then he agreed he was at the party the night before, but would not indicate what time he came home, except to say it was in the morning. He was adamant that he could not recall the time, but then said he knew it wasn’t 6:00 a.m. He later conceded it was 6:00 a.m. when confronted with his statement to the police on September 28, 2017. He also steadfastly maintained that he did not know how long it would take to travel from his mother-in-law’s home to his home, despite doing it a “million-zillion times”. Having more definite timing on the phone call he purportedly received from D.S. would have been of assistance to this court.
[113] In addition, M.T. refused to answer the question if he dealt drugs at the party, because he said he didn’t take drugs. He then denied buying drugs at the party or using drugs at the party. Later, when asked again, he stated “I am not innocent” but would not provide any particulars.
[114] With respect to his evidence relating to M.J., near the end of his first day of cross-examination, when asked if he had seen M.J. with any other male friends, M.T. said he did not want to talk about M.J. in the court and didn’t want to get involved her business. Even when directed by the court to answer that question, he refused to and stated he would “pay the penalty” or get locked up for not answering. When asked why he would not speak about M.J., he stated:
A. Okay, Your Honour. I know my problem is with this fellow right here. [M.J.] is not my problem, but apparently after this guy got locked up, [M.J.] side of family them that are some bikers. I was at a party, the party was over, and they tried to jump me and whatever it is. So I know a couple of friends that they squash it and said – because the guy that tried to squash it, he is friends with those other guys, right. So we squash it and we said leave it alone, because as I said, she has nothing to do with whatever me and him have so I rather keep her name out of my thing, right. Because prior to this - I don't know where this guy gets some stuff. That's why I said the justice system. Get some videotape and have it all over [MH Court] with me with whatever I'm maybe saying. Something like this he got and he have it all over [MH Court], right. So I'm saying, if he's going to ask me such question and I'm going to answer, I know it's going to be out in [MH Court] again for me to be worried more than how I worried. You understand me? So that's why I said I don't want to speak about her because I have no beef with her. All of this just came from this one person. So I said, "I don't want to speak about her. I have no issue with her and I have no problem different from the time when that occurred. So that's why I said I do not want to speak about her.
[115] He later described being surrounded by bikers in the summer of 2018 where he was warned to stay away from M.J.
[116] The trial was adjourned to give M.T. a chance to reconsider his refusal to answer and told to speak to a lawyer about the consequences of not answering. M.T. appeared the next day. He indicated that he had not yet received independent legal advice but repeated that he did not want to say anything about M.J. regarding her bedroom or drugs. He was cautioned again about the seriousness of not answering questions that the court directed him to answer. The Crown advised the court that they made arrangements for M.T. to receive independent legal advice, at the government’s expense, but it was not available until later that afternoon. Accordingly, the court adjourned until then.
[117] An hour later, before M.T. had an opportunity to speak to the lawyer, he indicated he wanted to give evidence. When asked if he knew of any other male friends of M.J.’s, he said he saw them around, but he doesn’t know who they were. On re-direct when asked if he knew of any male friends with whom she was romantically involved, he said he only knew of B.M, “as in the guy that I’m looking at in front me right now”.
[118] When trying to sort out M.T.’s evidence, a number of things are evident. If the evidence approaches something that is detrimental to his own reputation, he is evasive or contradictory. If the evidence veered towards his family, he simply refused to answer. When the evidence led to the issue of M.J., he was purposively evasive, and as much as admitted that he would not say anything against her, even if it meant going to jail. When he did eventually answer the questions asked, his evidence wasn’t particularly damning of her. His refusal to speak negatively about her causes the court to consider whether M.T.’s evidence about the phone calls he received were truthful.
[119] The reasons for M.T.’s unwillingness to give consistently truthful evidence is not clear. Perhaps it is out of fear to protect himself, his family or just disinclination to cooperate with this judicial process. Whatever the reasons, it is not this court’s role to engage in speculation on the reason. The court’s role is to determine if his identification evidence establishes D.S.’s guilt beyond a reasonable doubt. It does not.
Absence of Evidence
[120] Combined with the difficulties with M.T.’s evidence, are some gaps in the evidence that raise some concerns with this court.
[121] Despite the reliance on the calls from M.J.’s cell phone to M.T., allegedly setting in motion the events of the day, no evidence of the cell phone records of either M.J. or M.T. were entered into evidence. The timing of these calls could have provided some needed clarity for this court.
[122] The presence of another person on the basketball court was not addressed. Two other men were present. One of them has since died. Surely the evidence of the other potential eye-witnesses at the time of the stabbing would have gone a long way to alleviate reasonable doubt.
[123] Despite M.J. giving evidence about the involvement of her friend, her meeting of D.S. shortly after the stabbing occurred, and the phone calls made from her phone, no evidence of her cell phone records was presented, nor was her friend called as a witness.
[124] Also, no other evidence was presented that would identify D.S. as B.M. or that he was known or seen in the MH Court complex.
[125] Despite the reliance on C.H. to identify the assailant, which led to his arrest, there was no evidence that C.H. was ever asked to identify D.S. after the fact. The police went to the plaza and arrested a man who was not wearing the same clothes as any of the descriptions given by C.H.
[126] Finally, despite M.T.’s statement of who stabbed him – being “[B.M.]” or “[M.J.]’s boyfriend”, no efforts appear to have been made to have him attend after the fact to verify that identification in any other way.
V. Conclusion
[127] Accordingly, after reviewing the entirety of the evidence, I find that the Crown has failed to establish, beyond a reasonable doubt, that D.S. was the individual who stabbed M.T. Accordingly, it is not necessary to determine if the other essential elements of the charge of aggravated assault and attempted murder have been made out.
[128] D.S. is found to be not guilty of both charges.
Fowler Byrne J.
Released: April 19, 2021
COURT FILE NO.: CRIM.J.(P) 1864/19
DATE: 2021 04 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
D.S.
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: April 19, 2021