R. v. Huynh, 2021 ONSC 4438

COURT FILE NO.: 18-12220

DATE: 2021/06/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

John Y. Huynh

Accused

Michael Purcell, for the Crown

Paul Lewandowski, for the Accused

HEARD: June 17 and 18, 2021 by Zoom-Oral decision given on June 18, 2021

Reasons for decision

A.E. London-weinstein j.

1Mr. Huynh is charged with robbery and conspiracy to commit robbery by luring arising from an incident on June 11, 2018. There were a number of admissions in this trial. It is not necessary to relate them here. The Crown filed a PDF containing the admissions which were made Exhibit 1 in this trial. There is no question that Mr. Al-Abidin was robbed. The issue in this trial was whether Mr. Huynh was involved in that robbery.

2The Crown called two witnesses, the complainant Fareed Al-Abidin and his friend Ms. Sindy Dhaliwal. Mr. Huynh testified in his own defence. For reasons which I will explain further, I have a reasonable doubt as to the guilt of Mr. Huynh and I found him not guilty of both counts on the indictment. I indicated on Friday, June 18, 2021 that Mr. Huynh was acquitted of both counts on the indictment. These are my reasons for finding him not guilty.

3Mr. Al-Abidin is in the bitcoin business. He runs a business called Mr. Bitcoin. The business involves selling and purchasing crypto currency. A commission is earned on each sale or purchase. Mr. Al-Abidin testified that he was robbed on June 11, 2018 by Mr. Huynh and another unknown black male. I will refer to this male as Ricky.

4Mr. Al-Abidin was an early adopter of crypto-currency. He testified that he has done very well for himself and helped others increase their wealth through bitcoin purchases and sales.

5Mr. Al-Abidin testified that he became friends with the accused but knew him only by his first name of John. Mr. Al Abidin met Mr. Huynh through a third party and the men developed a friendship. Mr. Al-Abidin had been to Mr. Huynh’s house and had dinner with him over 20 times.

6Mr. Al-Abidin said he had known Mr. Huynh for a few months before the incident on June 11, 2018 when Mr. Al Abidin says that Mr. Huynh and Ricky, robbed Mr. Al-Abidin.

7Mr. Al-Abidin and Mr. Huynh completed a number of bitcoin transactions before the incident on June 11, 2018. The previous transactions had all gone smoothly, and Mr. Al-Abidin testified that at that point he trusted Mr. Huynh.

8Mr. Al-Abidin testified that Mr. Huynh had previously referred one of his friends who was a high stakes poker player to Mr. Al-Abidin and there was no issue with that sale. Prior to the June 11 incident he had concluded large transactions with Mr. Huynh with at least two clients.

9Mr. Huynh had advised him of someone who wanted to cash out his bitcoin. Mr. Al-Abidin said that he was told that this person wanted to sell bitcoin worth a sum under $20,000 perhaps $17,000. Mr. Al-Abidin was not able to come up with more than $9,000. He had a friend who was a doctor who provided the money to purchase the bitcoin, he said.

10Mr. Al-Abidin said he did not discuss the sale of the bitcoin with Mr. Huynh until the day of the transaction. He testified that suddenly, Mr. Huynh reported that he had someone who wanted to sell his bitcoin.

11Mr. Huynh and Mr. Al-Abidin agreed to meet at the Lonestar restaurant on Dalhousie Street in the Byward Market. Mr. Al-Abidin testified that he went with his friend Ms. Sindy Dhaliwal, and her friend. Mr. Al-Abidin testified that he and the women went for fajitas and drinks at the Lonestar restaurant and Mr. Huynh met them there. Ms. Dhaliwal testified that Mr. Al Abidin and Mr. Huynh were already at the restaurant when Ms. Dhaliwal and her friend Katie, last name not provided, arrived.

12There were text messages introduced into this trial where Mr. Huynh texted that if Mr. Al-Abidin could get 15K cash, he could get $16.5K in bitcoin. Mr. Huynh texted that he wanted a $600 cut.

13Mr. Al-Abidin texted back, “I can, but how are you basing your cut” Mr. Huynh responded: “I will just take 600 cash”. Mr. Al-Abidin testified that even though Mr. Huynh had not answered the question directly, Mr. Al-Abidin went along with the idea of a $600 cut for Mr. Huynh.

14Mr. Al Abidin texted that he could not withdraw $15,000 from the bank with so little notice.

15It was initially suggested by Mr. Al-Abidin that both series of texts were sent on the same day. In cross-examination he maintained they related to the same transaction, but might have been sent on different days, based on the time- stamped chronology.

16After paying the restaurant bill, the two women and Mr. Huynh and Mr. Al-Abidin went to Mr. Al-Abidin’s car. Mr. Huynh sat in the back passenger seat. Ms. Dhaliwal testified that Mr. Huynh had been seated in the front passenger seat. They drove to the Fisher Street address where Ricky was supposed to meet them. Mr. Al- Abidin testified that everyone seemed happy in the car and there was nothing which appeared abnormal in the 15 to 20 minute drive over to the apartment building. They parked at the front of the building in a parking spot parallel to Fisher Avenue.

17Mr. Al-Abidin said he took off his gold bitcoin necklace and gave it to Ms. Dhaliwal to hold for safekeeping. Mr. Huynh and he got out of the car and the two men walked around to the back of the building. Mr. Al-Abidin had been told that Ricky could not meet them in the ByWard Market as he had to babysit his daughter. Prior to Mr. Huynh’s arrival at the Lonestar restaurant, Mr. Al- Abidin was not aware he would be meeting Ricky at the Fisher Avenue address.

18He testified that he entered through the first set of glass doors into a hallway with a buzzer in the building. There were two sets of doors. Mr. Al-Abidin testified that a black male wearing a hoodie and silver aviator sunglasses was hiding around the corner.

19Mr. Al-Abidin testified that Mr. Huynh recommended Ricky to him as a good friend. He had provided his name to Mr. Al-Abidin, but Mr. Al-Abidin could not remember the name.

20Mr. Al-Abidin said he kept asking Mr. Huynh why they were going in through the back door of the apartment building. Mr. Huynh, according to Mr. Al-Abidin, said the guy lives close to the back of the building and he would just come and meet them at the door.

21Mr. Al-Abidin said he usually goes through the front door.

22Mr. Al-Abidin testified that when they got into the building, Mr. Huynh held his arms behind his back while the man in the hoodie tried to go through his pockets. Punches were thrown while Mr. Huynh was holding Mr. Al-Abidin’s arms behind his back. The man in the hoodie had a can of bear mace. Mr. Al-Abidin managed to get outside of the building, but he was taken down to the ground. The gold chain his grandmother gave him was broken in the struggle.

23The male in the hoodie pointed the bear mace in Mr. Al-Abidin’s face. The man lifted his shirt with his left hand and reached for the bear mace with his right arm. His glasses fell to the ground at one point, but Mr. Al-Abidin did not look back at him. The man in the hoodie and Mr. Huynh were yelling get the cash, look for the cash, I got the cash.

24Mr. Al Abidin testified that Mr. Huynh also said, he was sorry; that he owed people money, and that he did not really want to do this; or something like that.

25Mr. Al-Abidin said he was hit in the head with the bear mace, but it was never deployed. Mr. Al Abidin was punched several times as the men tried to get the money out of his pocket. Both men choked him at various times, and punched him numerous times, he said.

26Mr. Al-Abidin said it appeared as though the hooded man had a knife. Mr. Al-Abidin said he saw a knife handle.

27Mr. Al-Abidin said that Mr. Huynh removed the money from Mr. Al-Abidin pants.

28Mr. Al-Abidin was able to run to his car. He got in his car and turned left out of the parking lot and right on Fisher Avenue. Ms. Dhaliwal and Katie asked him if he was okay. He was breathing heavily. He told them he had been robbed. Ms. Dhaliwal’s friend Katie was panicking. He sent her home with an Uber driver. Ms. Dhaliwal took a cab home, as Mr. Al-Abidin was driving very fast, he said. He did not recall where he dropped them off. He gave them money for the ride home from a cup holder in the car, he said.

29Mr. Al-Abidin drove by the police station in Orleans. He saw that it was not open so he went home and put ice on his head. There were photographs in this trial which revealed that Mr. Al-Abidin had numerous small abrasions on his body, including on his rib area, on the palm of his hand, on his neck, on his arms, and on his knee. He testified he had bumps on his head from being struck with an object, likely the can of bear mace.

30The next day he said he went to the police station and gave a report about what happened. He also attended the police station later in June to provide a photo of Mr. Huyhn.

31Mr. Al-Abidin initially denied that he went to Mr. Huynh’s house on June 11, the day of the robbery, to demand that Mr. Huynh either reimburse him for the money he lost, or face being reported to police for robbery. However, Mr. Al-Abidin had provided a licence plate number to police which he suggested was related to the robbery. In his statement to police, it appeared as though Mr. Al-Abidin was suggesting that this car was at the scene of the robbery. Mr. Al-Abidin denied that he was suggesting to police that the car was at the scene of the robbery and insisted this was a misinterpretation of what he said due to his weak writing skills. Mr. Al-Abidin initially denied attending at the home when asked about it in cross-examination, however he later said he attended Mr. Huyhn’s home to record the licence plate number on June 12th before attending the police station.

32He initially conceded that he may have sent a text to Mr. Huynh asking that he repay the money that had been stolen and blaming him for the robbery. Mr. Al-Abidin testified that he kept all of his conversations on his phone and therefore would have kept a record of this conversation. It was agreed between counsel that the texts would be collected by Det. Taillefer and produced overnight. The text messages were not produced. I would not expect Mr. Al -Abidin to have texts from 2018 given the passage of time. However, I was troubled by the fact that Mr. Al-Abidin insisted he had kept a record of these conversations on his phone, and then could not produce them. The texts were purported to blame Mr. Huynh for the robbery. Mr. Al-Abidin said that he had kept them on his phone at a point in his cross-examination when he was being pressed as to why he had not disclosed them to police. He was asked by defence counsel if he deleted the texts. He responded that he could not remember. He testified that his phone rings as frequently as a pizza shop. He denied banging on Mr. Huynh’s door and demanding repayment.

33Defence counsel also cross-examined Mr. Al-Abidin regarding being charged with robbery himself two months before this incident. The allegation was that Mr. Al-Bidin and an escort robbed a customer and attempted extortion. Mr. Al-Abidin said that the man had raped his friend. Mr. Al-Abidin pleaded guilty to a charge of theft in front of Justice Webber for which he received a conditional discharge.

34Mr. Lewandowski suggested that Mr. Al-Abidin stole the victim’s phone because he thought it had bitcoin and when he found it did not, he threw the phone in the garbage. He suggested that Mr. Al-Abidin and the escort set up this man, who instead of submitting to extortion, called the police.

35Mr. Al-Abidin denied that suggestion. He said there was a 911 call on the phone. Mr. Al- Abidin was extremely argumentative during this part of the cross-examination. Despite my reminder that I was interested in his evidence and not that of Mr. Lewandowski, Mr. Al-Abidin continued to ask Mr. Lewandowski questions which were extremely inappropriate, such as what would Mr. Lewandowski do if someone raped his daughter, and asking Mr. Lewandowski whether he had a Lamborghini. While I understand why Mr. Al-Abidin felt affronted by the questions, the questions were relevant and were posed in an appropriate manner by defence counsel, who remained professional in his manner throughout. I found that Mr. Al-Abidin was evasive during this portion of his cross-examination and was not testifying in a forthright manner.

36When Mr. Lewandowski asked Mr. Al-Abidin if he had been robbed by someone else in February of 2018, he said he could not remember, that a lot had happened since that time. However, that robbery was only four months before the June 11, 2018 incident which was the subject of this trial.

37I found it unlikely that Mr. Al-Abidin would simply entirely forget being robbed in February of 2018 given that a robbery is not an insignificant event, and 2018 is not the far distant past. I concluded that Mr. Al-Abidin did not wish to answer questions about another robbery and simply claimed he could not recall anything about that robbery to shut down that line of questioning.

38Mr. Lewandowski pointed out that if Mr. Huynh was planning on robbing him, even though Mr. Al-Abidin did not know Mr. Huynh’s last name, he knew where he lived and could identify him as he had been to his house many times.

39Mr. Lewandowski suggested that when Mr. Al-Abidin met Ricky, who was the man in the hoodie, he asked him if he had his bitcoin wallet and cash ready. Mr. Al-Abidin said he could not recall that.

40He admitted that with the prior transactions, it was his normal practice to require visual verification of the bitcoin to be obtained. Mr. Al-Abidin admitted that this is what he had done in the past, but he said that is not what happened this time; that Mr. Huynh had pulled his arms behind his back and held him so that he could be robbed.

41Counsel suggested Mr Al-Abidin asked to see the bitcoin, and Ricky asked to see the money, whereupon Ricky grabbed the cash and ran. Mr. Al- Abidin responded that he had never heard such a poorly made up story. Mr. Lewandowski suggested that Mr. Al-Abidin chased after Ricky and Mr. Huynh tried to help, but also got punched by Ricky. Mr. Al- Abidin said that this story was the worst made up story he had ever heard. He laughed.

42Mr. Al- Abidin said he preserved all of his conversations on his phone. This comment was made in response to Mr. Lewandowski asking him why he had not turned over a text to police. The text may have contained a conversation between Mr. Al-Bidin and Mr. Huynh where Mr. Al-Bidin may have said he if he did not get the money back, he would go to police.

43In his evidence at trial, Mr. Al- Abidin testified that only Ricky had the knife and that Mr. Huynh never had a knife. In his statement to police in 2018, he said the Chinese guy (Mr. Huynh) pulled the knife. This is a major discrepancy in the evidence of Mr. Al -Abidin, and it is not on a peripheral matter, but relates to the robbery itself. I also find it is the type of discrepancy about which an honest witness, even having experienced the duress of a robbery, would be unlikely to be mistaken.

44Mr. Al-Abidin denied telling Ms. Dhaliwal that he had been robbed with a gun. However, Ms. Dhaliwal was emphatic that Mr. Al-Abidin said he had a gun drawn on him and yelled “duck” when he ran to the car, as though warning of potential gunfire.

45He also denied seeing a vehicle where the incident occurred other than his own car. However, in his statement to police it appeared he was suggesting the other car was present at the parking lot. The other car was linked to Mr. Huynh and was actually at his address of 25 Spruce. Mr. Al-Abidin, in his statement to police indicated that Mr. Huynh lived at 25 Spruce.

46Mr. Al-Abidin then remembered that he drove by Mr. Huynh’s house the next day and took a picture of the vehicle and went straight to the police station.

47Mr. Al-Abidin provided the licence plate ATPN 289 and a description of a Honda SUV to the police in his statement. Mr. Al-Abidin had initially denied attending Mr. Huynh’s home on June 11.

48Mr. Al- Abidin denied that he went to Mr. Huynh’s house to confront him directly about the money that was lost when Ricky robbed him. He denied scuffling with Mr. Huynh and said he did not want to catch an assault charge. He said if that happened, he is sure the neighbours would have called the police. He asked Mr. Lewandowski if he would just go and fight out of his office.

49Mr. Al-Abidin agreed that he had testified that Mr. Huynh had said that he was sorry; that he owed people money; that he did not have to do that, or that he didn’t really want to do this.

50However, in his statement to police he said the “Chinese guy” said “sorry man I had to do this…” he said this was the same thing in different words. However, there was no explicit reference to owing people money.

51The detective asked why he thought Mr. Huynh would make those remarks. Mr. Al- Abidin replied that perhaps Mr. Huynh was trying to repay a debt to a car rental agency.

52However, at trial he testified that Mr. Huynh’s comments were made because Mr. Huynh owed people money. I found his evidence during the trial on this issue to be inconsistent with his statement to police.

53Mr. Al- Abidin was extremely argumentative with counsel during this portion of his examination, despite remonstrations from the court. Mr. Al-Abidin said he felt like he was arguing with his girlfriend. He urged defence counsel to keep matters on a professional level, as he was a business man. The Crown had made no objection to Mr. Lewandowski’s questioning, which was appropriate as the questioning was entirely permissible and defence counsel was never rude, nor badgering, and the questions were relevant to issues which I had to decide.

54Mr. Al- Abidin was uncertain if he had been choked two or three times. I did not find it surprising that he could not recall how many times he had been choked, or that he was confused by the order in which the assault unfolded given the suddenness of the robbery and the duress he experienced while being attacked.

55He maintained that Ricky was part of Mr. Huynh’s group of friends who played poker together. He said that Mr. Huynh talked about Ricky not being able to attend downtown as he had to watch his daughter. He indicated that Mr. Huynh spoke to Ricky on the phone on the way to the exchange. Mr. Al-Abidin testified that Mr. Huynh acted like he knew Ricky and provided specific information about Ricky such as the fact he had to watch his daughter.

56Ms. Sindy Dhaliwal also testified. At the time of the incident she was dating Mr. Al-Abidin. She said that she and a friend name Katie, last name not provided, went to the Lonestar restaurant and Mr. Huynh and Mr. Al-Abidin were already present. The late lunch was around 4 p.m., she said. She said that Mr. Huynh called himself Jeff. Mr. Al-Abidin asked the women if they wanted to come with him and they agreed to attend the meeting with the client. The two women sat in the rear seat. Mr. Al-Abidin and Mr. Huynh were in the front of the car. The women stayed in the car and Mr. Huynh and Mr. Al-Abidin left the car together.

57About 10 minutes later Mr. Al-Abidin came running out and yelled “duck.” Ms. Dhaliwal said that Mr. Al-Abidin told her he had a gun pulled on him. He jumped in the car and sped out of the parking lot of the building. Katie needed to get out of the car. Ms. Al-Abidin told Ms. Dhaliwal that Mr. Huynh had set him up and that he had been jumped and robbed. He appeared to her to have difficulty breathing. Ms. Dhaliwal said that she was under the impression that there were five people who robbed him, but in cross-examination it turned out this number was not based on anything which Mr. Al-Abidin had said, but was Ms. Dhaliwal’ s surmise.

58Ms. Dhaliwal said that Mr. Al-Abidin’s face was very bruised. In the photographs which were presented in this trial, I did not observe bruising on Mr. Al-Abidin’s face. I also query whether the bruises would have had time to be visible immediately after the attack. I did not find Ms. Dhaliwal to be the most reliable of historians. She frequently made reference to her poor memory, due to the passage of time, when pressed for any degree of detail by counsel. However, she was quite clear, and seemed quite certain that Mr. Al-Abidin had told her to duck as if he expected them to be fired upon. Mr. Al-Abidin denied making this statement to Ms. Dhaliwal. I found that the statement was made to her, despite Mr. Al-Abidin’s denials. The fact that Mr. Al-Abidin made the statement that a gun was drawn upon him, and denied making this statement, cast doubt on his credibility in this trial.

59I turn to the evidence of the accused. Mr. Huynh is 29 years old and has no criminal record. He has worked doing seasonal interlock installations on a full-time basis for a number of years. He has an annual salary in the $60,000 to $70,000 range. Mr. Huynh testified that he and Mr. Al- Abidin met each other through someone who Mr. Huynh knew in the poker world. He testified that he and Mr. Al-Abidin completed five to six bitcoin deals together prior to the June 11 incident. The amounts of the deals ranged from five figures ranging from $10,000 to $50,000. He would split any earned commissions with Mr. Al-Abidin There were no issues with any of the prior deals.

60Mr. Huynh testified that people in the bitcoin business could be shady or use the exchanges to launder money.

61Mr. Huynh testified that his contact with Ricky was only from an Instagram app., and that he and Ricky were not friends.

62Mr. Huynh said he had no idea that Mr. Al-Abidin would be robbed. He said that Mr. Al-Abidin blamed him for the robbery and said that he set him up, which he denied.

63Mr. Huynh said Ricky’s Instagram profile depicted exotic cars. He appeared to be a person of considerable means. Mr. Huynh agreed that he texted back and forth with Mr. Al-Abidin to discuss the details of the deal. He and Mr. Al- Abidin were supposed to meet the client (Ricky) at a public place, such as a shopping mall. Ricky said he could not come to the mall as he had to babysit his daughter. He told Mr. Huynh to go to 1150 Fisher Avenue.

64Mr. Huynh testified that he and Mr. Al-Abidin left the Lonestar restaurant to go to the apartment building. He went to the front of the building and called Ricky on his cellphone to announce their arrival. Ricky instructed him to go to the back or the side of the building. Mr. Huynh and Mr. Al-Abidin walked to the side of the building. Mr. Huynh continued to speak on the phone with Ricky, who advised he was in the back of the building. Ricky came out of the building.

65Mr. Huynh described Ricky’s appearance as being tall, 6’ 3” or 6’4”. Mr. Huynh said Ricky was black, wore glasses and he described him as Arabian.

66Mr. Huynh testified that Mr. Al-Abidin asked Ricky if he had the bitcoin. Ricky pulled out his phone. Mr. Huynh said that Mr. Bitcoin, which is how he sometimes referred to Mr. Al-Abidin, pulled out the cash. Ricky grabbed the cash and started running. Mr. Al-Abidin tried to tackle him. Ricky got up and shoved Mr. Al -Abidin off of Ricky. However, Ricky grabbed Mr. Al-Abidin’s gold chain from his neck and it fell to the ground. Mr. Huynh testified that he tried to pull Ricky off of Mr. Al-Abidin with no success. He testified that he was punched in the face very hard and knocked out. Ricky ran away with the money. Mr. Huynh picked up his phone off the ground. Mr. Al- Abidin fled and left him behind.

67Mr. Huynh said he felt badly that Mr. Al-Abidin got robbed, but he was not involved in conspiring to rob Mr. Al-Abidin. He was emphatic that he did not hold Mr. Al-Abidin’s arms behind his back, or hit him, or choke him. He did not take his money and he did not share the money which Ricky had stolen.

68He said that he tried to call Mr. Bitcoin multiple times and he would not pick up. Mr. Al-Abidin eventually answered the phone and said told him that he was going to get fucked up. Mr. Al-Abidin then hung up on him.

69Mr. Huynh had to take a cab home. Mr. Al-Abidin called him and said he was coming to his house.

70Mr. Al-Abidin came to his house. Mr. Huynh came outside. Mr. Al- Abidin accused him of setting him up. He told him that he was going to be fucked up and if he got fucked up Mr. Huynh would be even more fucked up. He punched Mr. Huynh in the face. Mr. Huynh grabbed him and threw him to the round. They were wrestling around on the ground. Mr. Huynh testified that Mr. Al- Abidin said he would send people after him. He said he was going to go to the police and claim that Mr. Huynh robbed him if he was not reimbursed for the money which had been stolen.

71Mr. Huynh denied saying he was sorry; or admitting that he robbed Mr. Al-Abidin because he owed people money. He denied saying he did not have to do this, as Mr. Al- Abidin had testified. He testified that he also did not say “sorry I owe people money I didn’t really want to do this.”

72He testified that he had no weapons that day, no bear spray and no gun. He said he never grabbed any part of Mr. Al-Abidin’s body, nor choked him.

73In cross- examination, Mr. Huynh admitted that he was not honest with Det. Taillefer in his police statement when he denied involvement in the bitcoin business numerous times. Mr. Huynh said he did not wish to speak to the detective at all and she kept questioning him.

74I note that Det. Taillefer was under no duty to stop questioning Mr. Huynh, and his statement was conceded to be voluntary.

75Mr. Huynh quite candidly admitted that he was not sure of the legality of the bitcoin business and did not want to admit his involvement to the officer. He also said that he did not call police after the robbery as he had concerns about the legality of the bitcoin business. I agree with the Crown that Mr. Huynh tried to sanitize his involvement in the business to a certain extent, and to portray Mr. Al- Abidin as being engaged in criminal activity. However, I did not find this sanitization of his own involvement in a business which may have had some criminal participants, nor his tendency to cast Mr. Al-Abidin in a bad light, to be a sufficient basis to reject his evidence entirely, or even substantially. I noted that Mr. Huynh had a tendency to cast himself in a good light, and Mr. Al-Abidin in a bad light as I considered his evidence. I still found I had no basis to reject his evidence, as much of what he said accorded with common sense within the specific facts of this case. He also made admissions which did not favour his position, which I found to be the mark of an honest witness.

76Mr. Huynh admitted in cross-examination that he was the one who had contact with Ricky and that he had spoken to him on the phone. He agreed that he was the one who had provided Ricky as a potential client. I found him to be candid in making these admissions in cross-examination.

77Mr. Huynh was also asked by the Crown if he felt uneasy when he was at the building when Ricky was not at the front of the building. He said he was, and he and Mr. Al-Abidin discussed the oddity of the situation. He then went on to say, that he actually found it weird that Ricky would not meet them at the Rideau Centre as previously agreed. In answering this way, Mr. Huynh was making the Crown’s point for him as the answer provided was contrary to his own interest. The Crown was suggesting that it would have been obvious to him that something was awry about the deal, and the reason he did not pull out of the deal despite something being “off” was because he was a party to the robbery. I found his answer to be the mark of an honest witness and it emerged spontaneously in cross-examination.

78I also accepted that the robbery happened so fast that Mr. Huynh was unable to defend himself. I accepted his evidence that after the robbery he ran toward Mr. Al-Abidin and Mr. Al-Bidin left him at the scene. I accepted he was punched in the face. I also did not find it incongruous that he was able to later knock Mr. Al-Abidin to the ground when Mr. Al-Abidin attended at his house, but was overcome by Ricky. The event with Ricky was an unexpected event, and Ricky was 6’3”or 6’4”. Mr. Huyhn is 5’9”. Mr. Al-Abidin is closer to Mr. Huyhn’s height.

79There was cross-examination regarding a motive for robbery due to gambling debts. I had no evidence to find that Mr. Huynh had gambling debts. If I were to find that Mr. Huynh were to have debts, merely because he plays poker, in the absence of evidence, I would be engaging in speculation. The only evidence I had was that Mr. Huynh made $60,000 to $70,000 per year in the interlock installation business and that there are winning and losing streaks in poker. Mr. Huynh did not agree that he had accrued significant debt due to poker, and there was no evidence to suggest otherwise.

80There was also cross-examination of Mr. Huynh regarding the danger of the bitcoin business. The Crown pointed out the bitcoin dealing business is a dangerous way to earn an insubstantial amount of money. Again, Mr. Huynh was candid. He admitted that there was some risk, but he did his best to control the risk. He said that although he did not know Ricky, and had not done due diligence, he felt relatively confident as both himself and Mr. Al-Abidin were present. He also said that he wanted to supplement his income. I have no basis to reject his evidence on this issue. I found he was supplementing his regular income through engaging in bitcoin deals.

81Mr. Huynh testified in a credible and straightforward manner. He was not shaken in cross-examination in my view. Further, I preferred Mr. Huynh’s evidence regarding what happened at the beginning of the interaction. I found that Mr. Al- Abidin asked Ricky to see the bitcoin, and Ricky asked to see the money. This practice accords with the normal practice of what transpired in the other transactions which Mr. Huynh and Mr. Al-Abidin had conducted on five or six previous transactions.

82In his evidence, Mr. Al-Abidin initially described Mr. Huynh. as immediately pulling his arms behind his back whereupon he was immediately assaulted by Ricky. He made no reference to asking to see the bitcoin, or being asked to show the money. I did not accept Mr. Al- Abidin’s evidence on this issue, and I preferred the evidence of Mr. Huynh, as it was consistent with Mr. Al-Abidin’s normal practice. Mr. Huynh mentioned in cross-examination for the first time that Ricky may have had a weapon, perhaps bear spray or a black object. I agreed with the Crown that I would have expected Mr. Huynh to reveal this observation in his examination in chief, but in fairness to him, he was not specifically asked. Upon reflection, I did not find it a significant enough omission to justify the rejection of his evidence.

83I turn to the legal analysis.

84If I believe the evidence of the accused, I must acquit. If I do not accept the evidence of the accused, but am left in a doubt by it I must acquit. If I do not accept the defence evidence, it does not leave me in a doubt, but when I consider the evidence I do accept, if it leaves me in a doubt, I must acquit. R v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The burden of proof rests with the Crown throughout and never shifts. The burden of proof is closer to certainty than to a balance of probabilities. If I think Mr. Huynh probably or likely robbed, or conspired to rob Mr. Al-Abidin, I must acquit Mr. Huynh. I must not simply choose which version of events I believe. If I were to do that, I would be reversing the burden of proof, which is an error.

85I accepted the evidence of the accused in this case. I believed his evidence that he arranged the deal with Ricky and had no basis for knowing there was going to be a robbery. I accepted that he called Mr. Al-Abidin immediately after the robbery to try and speak to him. I also accepted his evidence that Mr. Al-Abidin came to his home to demand reparation for the robbery. I found Mr. Huynh to be credible, and to make admissions which were not in his interest. For example, he admitted that he found it strange that they were not only meeting at the rear of the apartment building, but that Ricky had refused to meet him at the Rideau Centre. This admission was contrary to his interests, yet he freely made this admission to the Crown. I accepted the evidence of Mr. Huynh and that ends the analysis. However, even if I did not accept the evidence of Mr. Huynh that he had no part in the robbery, which I do in fact accept, I would not convict Mr. Huynh on the evidence I heard in this trial.

86There were significant inconsistencies in the evidence of Mr. Al-Abidin. In his statement to police he said that Mr. Huynh had a knife. In his evidence at trial, he said that he saw a knife handle on Ricky, not Mr. Huynh.

87He denied telling Ms. Dhaliwal that a gun was pulled on him. While I did not find Ms. Dhaliwal to be a good historian, as she frequently claimed she could not remember details when pressed by counsel, the detail about Mr. Al-Abidin yelling “duck” seemed to be a clear memory of hers and I accepted her evidence over that of Mr. Al-Abidin. I found that Mr. Al-Abidin had yelled “duck” in reference to potential gun fire. He denied making this statement at trial.

88I also found that Mr. Al-Abidin’s testimony at trial that Mr. Huynh said he owed people money does not accord with what he said to police regarding Mr. Huynh’s potential motive for robbery which related to a car rental debt. I also found that Mr. Al-Abidin’s evidence was not credible on the issue of what he had done after the robbery and whether he had gone to Mr. Huynh’s house to demand reparations. He initially claimed he did not, said he might have asked for reparation in a text, said he had the texts saved, and then could not produce them. As I indicated, I would not expect Mr. Al-Abidin to still be able to access texts from 2018. However, I found the fact he insisted he did when being pressed in cross-examination, to be undermining of his credibility.

89When I consider the evidence of Mr. Al-Abidin and the whole of the evidence, I find that I am left in a doubt that Mr. Huynh was a participant in the robbery for the additional reason that Mr. Al-Abidin knew where Mr. Huynh lived, knew his address and they had been out together many times. It would be easy for Mr. Al-Abidin to identify Mr. Huynh and turn him in to police. Mr. Huynh was aware that Mr. Al-Abidin knew where he lived as they had been together many times.

90The standard of proof beyond a reasonable doubt is inextricably intertwined with the fundamental principle of all criminal trials, which is the presumption of innocence.

91The burden of proof rests on the prosecution through the trial and never shifts to the accused. A reasonable doubt is not based on sympathy or prejudice, rather it is based on reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty, it is not proof beyond any doubt, nor is it an imaginary or frivolous doubt. More is required than proof that the accused is probably guilty. A jury that concludes only that the accused is probably guilty must acquit. R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 (C.R. (5th) 1, 111 C.C.C.

92At the end of the day, when I consider the evidence as a whole, I am left in a state of doubt as to whether Mr. Huynh was involved in the robbery or was duped by a man named Ricky who took advantage of him. My reasons for coming to that conclusion relate to my acceptance of Mr. Huynh’s evidence. Further, even if I did not accept Mr. Huynh’s evidence, which I do, given the number of material inconsistencies in Mr. Al-Abidin’s evidence, it would be unsafe to rely on this evidence to find guilt has been proven beyond a reasonable doubt. I find Mr. Huynh not guilty on both counts.

Anne London-Weinstein J.