ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-22–3000-0226 DATE: 20221007

BETWEEN:

HIS MAJESTY THE KING

– and –

DION LANGFORD

Counsel: Constantinos Stratos, for the Crown Daisy McCabe-Lokos, for Dion Langford

HEARD: August 8-12, 15^th^, 2022

Reasons for judgement

P.J. Monahan J.

[1] Dion Langford was tried before, me sitting without a jury, on the following charges: (i) possession of a weapon, namely a knife, for a purpose dangerous to the public peace, contrary to s. 88 (1) of the Criminal Code of Canada;[^1] (ii) carrying a concealed weapon, namely a knife, contrary to s. 90 (1) of the Criminal Code; (iii) stealing while armed with a knife, thereby committing a robbery, contrary to s. 343 (d) of the Criminal Code; and, (iv) aggravated assault, contrary to s. 268 (2) of the Criminal Code.

[2] These charges arose out of a violent assault on Michael Bui that occurred around midnight on June 20, 2019. During the evening of June 19, 2019, Mr. Bui had arranged via a series of text messages to meet a young girl for sex in his car in return for a payment of $100. (Since the girl was just 15 years old at the time, I will refer to her in these reasons by her initials, MT.)

[3] MT had instructed Mr. Bui to meet her in front of an apartment building located at 15 Orton Park Road in Scarborough. When Mr. Bui arrived at that location, MT exited the apartment building, got into the front passenger seat of Mr. Bui’s car, and instructed him to drive around to a parking area in the rear and slightly to the north of the building. Shortly after Mr. Bui parked as instructed, a male approached Mr. Bui’s car, opened one of the car doors and began assaulting him. In the course of this assault, Mr. Bui was seriously injured, including being stabbed in the abdomen and suffering severe cuts to his head and face. He called 911 and was taken to hospital, where he underwent surgery for his injuries and went through months of rehab.

[4] Mr. Bui was not able to identify his assailant. However, police obtained surveillance video from the apartment building which disclosed that when MT came downstairs to meet Mr. Bui, she had gotten into an elevator with Dion Langford, a tenant in apartment 1409. MT and Mr. Langford got out of the elevator on the second floor. A few minutes later, MT could be seen exiting the building through the main lobby. As a result of their investigation, police charged both MT and Mr. Langford with robbery, although the charges against MT were subsequently resolved and were not before me at this trial.

[5] There is no dispute that Mr. Bui was assaulted and severely injured and that his $100 was stolen. The only issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Langford was the assailant.

[6] The Crown’s theory is that after Mr. Langford got off the elevator on the second floor with MT, he exited the apartment building via a rear north entrance, where he waited for MT and Mr. Bui. The Crown argues that when Mr. Bui drove around the building and parked in the adjacent rear parking area, Mr. Langford forced his way into the vehicle (with MT’s assistance), while MT ran off with Mr. Bui’s $100. After he had assaulted and stabbed Mr. Bui, Mr. Langford went back into the apartment building with MT via the rear north entrance and together they walked up the nearby stairs to his apartment on the 14^th^ floor.

[7] Counsel for Mr. Langford points out that the evidence identifying him as the assailant is entirely circumstantial. Mr. Bui was unable to identify his assailant. There is no video evidence from the area where the assault occurred, nor is there any forensic evidence that links Mr. Langford with the assault. Although Mr. Langford admits that he was smoking outside the rear north entrance of the apartment building near to where when the assault occurred, he denies that he was the assailant. Mr. Langford’s evidence in this regard is corroborated by MT, who says that the assailant was an unknown male, and not Mr. Langford.

[8] For the reasons explained below, I believe it is likely that Mr. Langford was in fact the assailant. But there are significant gaps in the Crown’s case and the evidence linking Mr. Langford with the assault is far from compelling. When I consider the evidence as a whole, I find that the Crown has failed to prove beyond a reasonable doubt that it was Mr. Langford who assaulted Mr. Bui. I therefore acquit him of the charges before the court.

Crown Case

[9] There were three Crown witnesses: Mr. Bui, the victim of the assault; Timothy McCoy, the superintendent of the apartment building at 15 Orton Park Road; and MT.

a. Evidence of Michael Bui

[10] Mr. Bui is currently 33 years old and was 29 at the time of the assault. He explained that on the evening of June 19, 2019, he arranged through a series of text messages to meet a girl for sex in his car in return for a payment of $100. Although he initially thought that that he had met this girl before, he subsequently learned that it was a different girl whom he did not know.

[11] Mr. Bui testified that the girl who was to provide him with sexual services instructed him to drive to an apartment building located at 15 Orton Park Road in Scarborough and to text her when he arrived. He parked in a roundabout in front of the building sometime between 11 PM and 12 PM that evening and sent the text as agreed. The girl seemed to be taking her time coming downstairs so, a few minutes later, Mr. Bui sent her a second text asking if she was still planning on coming down. Eventually, the girl – who turned out to be MT – came out of the apartment building and got into the front passenger seat of Mr. Bui’s car.

[12] MT instructed Mr. Bui to drive around the apartment building to a parking lot in the back. He did so and parked near the far end of the parking lot, about a dozen parking spaces away from the rear north corner of the building. Mr. Bui paid MT the $100 that they had agreed upon and MT put the money in her purse. MT then said she wanted to smoke a cigarette and began rummaging around in her purse. Mr. Bui thought she needed a lighter, so he reached toward the back seat to get one. Mr. Bui said that as he turned towards the back seat, he noticed a male approaching the vehicle from the rear passenger side. This individual – whom I will refer to simply as the assailant – began pulling on the door handle of the front passenger door. Although the car doors were locked, Mr. Bui was afraid that the assailant might somehow force his way in and so he began repeatedly pressing a door lock button on the vehicle dashboard. This continued for between 10 and 15 seconds at which point MT pulled on her door handle, unlocking her door and allowing the assailant to open it. The assailant then appeared to Mr. Bui to assist MT in getting out of the car by holding her arm or her hand.

[13] As MT was exiting the vehicle, Mr. Bui tried to grab the purse where she had put his money. MT was able to break free and ran off in the direction of the apartment building, while the assailant began punching Mr. Bui in the head. Eventually the assailant ceased the attack and ran off in the direction of the apartment building. Mr. Bui got out of his car to try and get a better look at him. As Mr. Bui came around the back of his car, the assailant charged at him, pushed him onto the ground and resumed punching him in the head. The assailant then got up, told Mr. Bui that he had been stabbed, and ran off once again towards the apartment building.

[14] Mr. Bui got up off the ground and ran towards the building in pursuit of the assailant. He thought the assailant had entered the apartment building through a rear door near the north end of the building. When he got to the door he found it was locked and he could not open it. From the other side of the door, he heard the assailant yell out a second time that had been stabbed. Mr. Bui looked down and saw what appeared to be the blade of a kitchen knife (albeit without a handle) sticking out of his stomach. He ran back to his car and called 911. By the time Mr. Bui got back to his car the knife blade had fallen out of his stomach, but the police were later able to locate it on a grassy area adjacent to the parking lot.

[15] Paramedics and police arrived shortly thereafter and took Mr. Bui to the hospital. Police also confirmed that Mr. Bui had in fact pursued his assailant to the north rear exit door of the apartment building, as they observed blood on the step immediately outside of that door as well as on the door handle.

[16] Mr. Bui suffered severe injuries as a result of this attack. In addition to the knife wound, which required surgery to remove a portion of his intestine, he had severe cuts to his nose and head which required numerous stitches and staples. He remained in the ICU for a week and was bedridden for about a month, following which he underwent six months of rehab.

[17] Mr. Bui told police that he did not get a good look at his assailant and could only provide a general description. He said the assailant was a black male, 5 foot 8 or 5 foot 9 inches tall, with a skinny build, wearing baggy clothes, possibly a hoodie or a sweatshirt. Mr. Bui thought that MT and the assailant knew each other since she had opened the car door, thereby allowing him access to the vehicle, and he had appeared to help her get out.

[18] On cross-examination, Mr. Bui agreed that he did not notice any distinguishing features of the assailant and that his description was sufficiently general that it could match many young black males. He also agreed that it was possible that the assailant had been wearing a white T-shirt.

[19] Mr. Bui was asked whether he had initially told the police that the assailant had gained entry to his vehicle through the driver’s front door rather than the front passenger door, in light of notes made by the police officers to this effect. Mr. Bui said he did not specifically recall having said this to the police, but it was possible that he had because he was worried that he might get in trouble for having arranged to have sex with a young woman in his car. He said he had therefore initially given the police a “cover story” about the robbery that made no mention of the girl. Mr. Bui said that when he was interviewed at the hospital the police told him he could be honest with them and at that point he told them about the arrangements he had made with the girl for the purchase of sexual services. However, he also agreed with Mr. Langford’s counsel that the first time he mentioned the assailant having entered the vehicle through the passenger door (as opposed to through the driver’s door) was when he made a videotaped statement to the police in November 2019.

[20] Mr. Bui said that although MT and the assailant seemed to have had some prior connection with each other, he did not necessarily think that MT was working with the assailant to rob him. Mr. Bui also agreed that MT and the assailant did not say anything to each other as MT was getting out of the car. Mr. Bui said he did not draw any conclusions from the fact that MT had opened the front passenger door, which had allowed the assailant to gain entry to his vehicle.

b. Evidence of Timothy McCoy

[21] Timothy McCoy has been the superintendent of the apartment building at 15 Orton Park Road since July 2004. He indicated that there are surveillance cameras in the building elevators as well as all of the entrances to the building. In June 2019, the cameras in the elevators as well as the building lobby were functioning. However, the camera at the rear north entrance to the building was not functioning as it had been disabled by a tenant.

[22] Mr. McCoy also reported that it was necessary to use a key to enter the building through the door at the rear north entrance. He said that the lock on this door was functioning properly on June 20, 2019 as he had tested it shortly after being woken up by police at approximately 1 AM that morning, due to the assault on Mr. Bui.

[23] Mr. McCoy said that in June 2019, Dion Langford had been a tenant in the building for well over a decade, residing in apartment 1409 with his mother and sister. He saw and spoke with Mr. Langford regularly over the years. Mr. McCoy said that Mr. Langford would have had a key allowing him to gain entry to the building, including through the rear north entrance door.

[24] Mr. McCoy recognized Mr. Langford in surveillance video that had been recorded in one of the building elevators commencing at 11:52 PM on June 19, 2019. That video showed Mr. Langford getting onto the elevator with a female, acknowledged to be MT. Mr. McCoy said he recognized the female since he had seen her with Mr. Langford a few times previously, although he did not actually know her name. Based on his observation of the video, Mr. McCoy said that when they first got into the elevator, MT had pressed the button for the main floor. As the elevator began descending towards the main floor, Mr. Langford was bending over and appeared to be tucking his pants into his shoes. Before the elevator could reach the main floor, Mr. Langford quickly reached up and pressed the button for the second floor.

[25] Mr. McCoy testified that the video showed that the elevator stopped on the second floor, at which point Mr. Langford and MT exited to the left. Mr. McCoy said that this would lead them down a hallway to the north stairway of the building which could be used to exit the building either through the main lobby or the rear north entrance. However there were no surveillance cameras in the hallways of the building and thus there was no video of MT and Mr. Langford walking down the hallway after they got out of the elevator on the second floor.

[26] The surveillance video showed MT exiting the building through the main lobby about three minutes after she got off the elevator on the second floor. However, there were no further observations of Mr. Langford on any of the other surveillance cameras that evening.

[27] In cross-examination, Mr. McCoy agreed that he had seen some drug activity around the building and that police had been called from time to time to assist in removing unauthorized persons from the building stairwells. He also agreed that in August 2019, there was a shooting in a neighbouring apartment building which he also managed, located at 3950 Lawrence Avenue East.

c. Evidence of MT

[28] MT was born in October 2003 and, in June 2019, was 15 years old. At that time, she had been in a relationship with Mr. Langford for between six months and a year, although she said that their relationship was nonexclusive and not that serious. She said she would hang out at his apartment a couple of times a month but did not have a key to his building.

[29] MT acknowledged that on the evening of June 19, 2019, she arranged to provide sexual services to a male person (i.e., Mr. Bui) via a text messaging app. MT said that when she was making these arrangements, she was with Mr. Langford in his apartment on the 14^th^ floor of 15 Orton Park Road. However, MT said that Mr. Langford was unaware of the fact that she was making these arrangements with Mr. Bui, nor did he know that she had made similar arrangements with other men in the past. MT did not have a phone at the time and so she borrowed a tablet from Mr. Langford to make the arrangements with Mr. Bui.

[30] MT said that she does not remember anything that she did that day, nor did she remember any details about what had been agreed to with Mr. Bui. She did recall that she was going to try to persuade Mr. Bui to pay her without her actually providing any sexual services. She said on some occasions in the past she been able to sweettalk men into paying her even without her having sex with them. However, if Mr. Bui objected and insisted on having sex, she would not have put up a fight and would have returned his money.

[31] MT said that she told Mr. Langford that she was going to be picked up and driven home. However, she did not tell Mr. Langford who it was that was coming to pick her up.

[32] Just before midnight, MT and Mr. Langford took the elevator downstairs to wait for her ride to arrive. MT said that Mr. Langford came with her because he was planning to smoke weed just outside the rear north entrance to the building. Since the person who was coming to pick her up had not yet arrived, they got off on the second floor to wait. MT said that there was a window on that floor that provided a vantage point looking out towards the roundabout in front of the building. Once MT saw her ride arrive through that second-floor window, she would walk down the stairs to the main lobby and exit through the front doors, while Mr. Langford would walk down the stairs to the rear north entrance where he planned to smoke. While they were waiting on the second floor, Mr. Langford was rolling a joint

[33] When MT saw a car drive up and park in front of the building, she said goodbye to Mr. Langford, exited through the front lobby, and got into Mr. Bui’s car. She told him to drive around and park in the back of the building. Once they were parked in the rear lot, she asked him to pay her the $100 they had agreed upon. She put the money in her purse and asked Mr. Bui if she could smoke in his car.

[34] Suddenly, an unknown male opened Mr. Bui’s car door and demanded that Mr. Bui give him money. MT said as Mr. Bui and the assailant struggled with each other, she panicked and tried to open her door so she could get away. She had trouble opening the door and had to pull the handle two or three times before she could get it open.

[35] Once she got out of the car, she ran back towards the apartment building. She saw Mr. Langford standing outside the north rear door smoking. She told him the guy she was with was getting robbed. Mr. Langford walked around the building to take a look and see what was going on. He was gone for less than two minutes and then came back and said, yes, this person was getting robbed and was being beaten. Mr. Langford said they should go inside right away, and he opened the north rear entrance door using his key. MT said that she and Mr. Langford were worried that the guys who were robbing Mr. Bui might come looking for her and so they walked up the stairs to his apartment on the 14^th^ floor rather than take the elevator. When they got to Mr. Langford’s apartment, MT explained to him that she had arranged to provide sexual services to the driver of the car. Mr. Langford was not upset and was just happy that she was safe. She spent the night in his apartment because they did not want to run into anyone.

[36] MT was unable to describe the unknown assailant who had attacked Mr. Bui. She did not see his face, clothing, or skin colour. She did observe that he had a male voice.

[37] The surveillance video of MT and Mr. Langford going downstairs in the elevator appears to show her using a cell phone. MT was asked why, if she did not have her own phone, she had one in her hand when she was in the elevator. MT said that this was Mr. Langford’s phone that he had lent to her. MT also testified that, although at the preliminary inquiry she had said that she was using her phone, it was actually Mr. Langford’s phone she was using it at the time.

[38] MT was also shown the text messages that she had exchanged with Mr. Bui on the evening of June 19, 2019. These text messages seemed to suggest that Mr. Bui had arrived and parked in front of the building before she came downstairs. It was also pointed out to MT that when she got on the elevator, she initially pushed the button to the main lobby rather than the second floor. MT was asked whether this changed her recollection as to whether she had gone downstairs to wait for Mr. Bui on the second floor of the building. MT said that when she went downstairs Mr. Bui was not there and that is why she got off on the second floor with Mr. Langford to wait until he arrived. When asked how long she had waited, she said she did not remember the exact time but it was less than 20 minutes.

[39] On cross-examination, MT said when she and Mr. Bui parked in the rear parking lot, she had heard some loud voices. However, she did not see anyone in the parking lot and did not see where the assailant came from.

[40] MT was asked where she was planning to go after she ran out of Mr. Bui’s car. She said she was planning to go to a nearby bus stop and take a bus home. However, when she saw Mr. Langford smoking outside the rear north entrance of the building, she stopped and explained to him what had happened.

[41] MT had initially said that Mr. Langford went around the corner of the building for less than two minutes in order to investigate the robbery. However, after observing a period of 30 seconds elapse on the courtroom clock, she said that Mr. Langford was gone around so the building for closer to 30 seconds rather than two minutes.

[42] MT said that Mr. Langford was wearing a red satchel around his body, which contained his weed along with the paraphernalia necessary for him to roll a joint. She said he was not carrying a weapon.

Defence Motion for a Directed Verdict

[43] At the conclusion of the Crown’s case Mr. Langford moved for a directed verdict of acquittal, on the basis that the Crown had failed to tender evidence sufficient to support a finding that he was the person who assaulted Mr. Bui on June 19, 2019.

[44] The test to be applied on a defence motion for a directed verdict is well established, namely, whether there is evidence upon which a reasonable jury properly instructed could return a verdict of guilty. To satisfy this test, the Crown must tender evidence of culpability for every essential element of the relevant offense, which obviously includes the identity of the perpetrator. The judge hearing a motion for a directed verdict does not attempt to resolve conflicts in the evidence, make credibility findings, or determine whether the Crown has proven guilt beyond a reasonable doubt.

[45] Although I identified a number of frailties in the Crown’s case, particularly the fact that there is no direct evidence that Mr. Langford was the person who assaulted Mr. Bui, I ultimately concluded that the Crown case did include sufficent evidence which, if believed, could reasonably support a verdict of guilt. I therefore dismissed the defence motion for a directed verdict.

Defence Case

[46] The only defence witness was Dion Langford. He was born in September 1996 and, in June 2019, was 22 years old.

[47] Mr. Langford had met MT at a party through a mutual friend. They had an open relationship and would get together once or twice a month. He did not know her very well and did not know what she was doing for work. He thought she was about 18 at the time.

[48] MT came over to his apartment on the afternoon of June 19, 2019 and they hung out for a few hours, smoking and talking. When they got in the elevator later that evening, he thought she was going to get a ride home from her parents or an Uber driver. He went downstairs with her because he planned to smoke weed outside the back door to the apartment building. He wanted to pack his joint on the second floor because weed gives off a strong smell and it would be disrespectful to people coming into the building through the main lobby for them to have to smell it.

[49] Mr. Langford and MT waited for a couple of minutes on the second floor until she saw her ride arrive. MT then went downstairs towards the front lobby to meet her ride, while he took the stairs towards the rear entrance. He finished rolling his joint and sparked it before going outside. When he stepped outside, he propped the door open slightly so that it would be easy to get back inside the building once he was finished smoking. Mr. Langford thought there was a surveillance camera near the rear entrance of the building, and he thought it was working that evening.

[50] A couple of minutes later he saw MT run around the corner of the building toward him, saying that someone was being robbed. He looked around the corner for about 10 seconds to see what was happening and saw some people in the distance scuffling. He told MT that it looks like someone is being robbed. He was scared and panicking because he knows that robberies can go bad. He told MT to come back into the building with him. They decided to walk up the stairs rather than take the elevator because he was worried that someone might have seen MT and would come looking for her in the main lobby of the building.

[51] On cross-examination, Mr. Langford was asked whether he had seen MT go out to a car parked in the roundabout in front of the building. He said he was already in the staircase by that time and did not see her. Mr. Langford also said that he did not see Mr. Bui’s car drive around to the back of the building as he stood outside smoking. He said that Mr. Bui must have already driven by and parked by the time he went out through the rear north entrance door.

[52] Mr. Langford said that he had lent MT an iPhone as well as a tablet because she did not have her own phone. He said he never got his phone back from MT.

[53] Mr. Langford was also asked why he decided to smoke outside the rear north entrance rather than on his balcony. Mr. Langford said that because the apartment is on the 14^th^ floor, it is sometimes windy on his balcony and so he would go downstairs to smoke. He said a few minutes before they went downstairs, he had checked and found that it was in fact windy on the balcony that evening.

[54] Mr. Langford was asked what he had done with the joint that he been smoking outside the rear north entrance. He said he does not remember but he might have put it in his hoodie pocket or he might have just dropped it.

[55] Mr. Langford was asked whether he had any steak knives in the apartment. He said that his cutlery is all silver and that he purchased it at IKEA. He did not know whether a knife could fit in the satchel he was carrying since he had never put a knife in there. He said that he carried paraphernalia for smoking weed in the satchel, including a grinder, rolling papers, weed and a small metal tray.

[56] Mr. Langford was asked why, in his examination in chief, he had testified that he always wore his satchel across the front of his body. He said that in general he keeps it in the front of his body on his chest. When shown the surveillance video from the elevator he agreed that as he left the elevator, the satchel was across his back rather than his front. However, he said that after he left the elevator and was rolling a joint on the second floor, he moved the satchel to the front of his body.

[57] Mr. Langford was asked why, if he was concerned about the other tenants smelling his weed, he had rolled a joint on the second floor. He said that there were fewer people on the second floor than in the lobby and that is why he decided to roll the joint there.

[58] Mr. Langford said that as he was standing outside the rear north entrance smoking weed, MT came around the corner and told him there was a robbery going on. He said he looked around the corner for about 10 seconds and saw a few people scuffling outside the car. It appeared to Mr. Langford that there was more than one assailant engaged in the robbery. He was asked why, if he was so scared, he had decided to look around the corner of the building rather than immediately head back inside. He said he was not sure what was going on in his head at the moment other than that he was afraid that the people engaged in the robbery might have seen MT and would come looking for her.

[59] Mr. Langford denied that he and MT had jointly planned to rob Mr. Bui, or knowing that MT planned to take Mr. Bui’s money without providing him with any sexual services. He further denied that he had assaulted Mr. Bui.

Relevant Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[60] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. Thus, Mr. Langford is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[61] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Langford is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to Mr. Langford and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[62] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that Mr. Langford committed an offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt in relation to that offence.

b. Circumstantial Evidence and Proof Beyond a Reasonable Doubt

[63] The Crown’s case in support of the conclusion that Mr. Langford was the assailant is circumstantial. Therefore, as the Supreme Court of Canada noted in R. v. Villaroman[^2], in order to find Mr. Langford guilty, it is necessary that a finding of guilt be the only reasonable inference that the evidence, or the lack of evidence, permits. Moreover, if the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. Langford was the assailant, then he is entitled to an acquittal, which would extend to all four counts in the indictment.

[64] Nor is it necessary that inferences inconsistent with guilt be based on, or arise from, “proven facts”. At the same time, those inferences must be reasonable, given the evidence or the absence of evidence, assessed logically, and in light of human experience and common sense.[^3]

[65] When assessing circumstantial evidence, it is necessary to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown is required to negative those reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.[^4] In short, “circumstantial evidence does not have to totally exclude other conceivable inferences”[^5], and the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable”[^6].

c. Assessing Credibility and W.(D.)

[66] Since Mr. Langford testified and denied the Crown’s allegations, it is necessary to determine whether the Crown has proven his guilt beyond a reasonable doubt in accordance with the framework set out by the Supreme Court of Canada in R. v. W.(D.)[^7]. This means that if I believe Mr. Langford’s evidence to the effect that he did not assault Mr. Bui, I must find him not guilty. Second, even if I do not believe Mr. Langford’s evidence but it leaves me with a reasonable doubt as to whether or not he assaulted Mr. Bui, I must find him not guilty. Third, even if Mr. Langford’s evidence does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me beyond a reasonable doubt that he was the assailant. In making these findings, I am obliged to assess Mr. Langford’s evidence in the context of the evidence as a whole, as opposed to considering his evidence in isolation.[^8]

[67] The framework in W.(D.) is not confined to the testimony of Mr. Langford. Rather, it applies to any exculpatory evidence on vital issues that arise in the case and that turn on the credibility or reliability of a witness, including Crown witnesses.[^9] In this case, MT testified that the assailant was an unknown male rather than Mr. Langford. Even if that evidence is not believed it may, considered in the context of the evidence as a whole, give rise to a reasonable doubt. Moreover, while the Crown can certainly argue that various parts of MT’s evidence was not credible and that some or all of it should not be accepted, a finding against MT’s credibility would simply neutralize her evidence, which then has to be treated as if it has not been given.[^10] In other words, mere rejection of her evidence as to the identity of the assailant cannot be used by the Crown as the basis of a finding that the assailant was in fact Mr. Langford.

Analysis

[68] I begin my analysis by observing that I have serious concerns regarding the credibility of both Mr. Langford and MT.

[69] Numerous aspects of their evidence are simply not believable, including the following:

a. I do not find it credible that MT, a 15 year old girl who claimed that she did not even have her own phone, would have been making arrangements to provide sexual services with men over the Internet using Mr. Langford’s electronic devices without him knowing anything about it. MT provided no credible explanation as to why she was supposedly hiding this information from Mr. Langford, particularly in light of the fact that she said they had an open, non-exclusive relationship. Moreover, MT testified that when she told Mr. Langford later that evening about her providing sexual services, he wasn’t upset or even concerned about it. This reinforces the conclusion that Mr. Langford must have been aware of MT’s arranging to provide sexual services over the internet;

b. MT and Mr. Langford claimed that they got off the elevator on the second floor in order to wait for Mr. Bui to arrive. Yet the text message exchange between Mr. Bui and MT shows that Mr. Bui had already parked outside the building before MT and Mr. Langford got into the elevator. Moreover, the surveillance video shows MT exiting the building within three minutes of getting off the elevator on the second floor. I find that MT and Mr. Langford’s evidence that they got off the elevator on the second floor to wait for Mr. Bui is simply not credible;

c. MT was unable to provide any description, not even the skin colour, of the assailant whom she claims attacked Mr. Bui through the driver’s side door of his vehicle. I conclude that she was not being candid in her evidence on this point;

d. MT testified that she lied to Mr. Langford and told him that someone was coming to pick her up and drive her home, but that she deliberately didn’t tell him who it was, and Mr. Langford didn’t ask. Mr. Langford agreed that this is what happened. But neither of their accounts makes any sense. If, indeed, MT lied to Mr. Langford about who was coming to pick her up, she would have wanted to make the lie at least somewhat believable by identifying a person who was supposedly coming to get her. As for Mr. Langford, he said he never asked her who was coming to pick her up and just assumed that it was one of her parents, or maybe an Uber driver. But why the mystery around the identity of the person coming to pick up MT? If, indeed, MT had told Mr. Langford that she was being driven home, either she would have told Mr. Langford who it was, or, at the very least, he would have asked. The claim that MT didn’t mention who was picking her up, and that Mr. Langford didn’t ask, is obviously a fabrication;

e. Then, just minutes after heading out of the front door of the apartment building to meet her ride home, MT appears on foot around the rear of the building and encounters Mr. Langford smoking. Yet MT doesn’t see any need to explain how it is that she is now running around the rear of the building rather than on her way home, nor does Mr. Langford express any surprise at seeing her there. The only plausible inference that can be drawn is that MT saw no need to offer an explanation, and Mr. Langford wasn’t surprised, because Mr. Langford knew that MT wasn’t getting a ride home;

f. MT and Mr. Langford’s evidence that they then walked up 14 flights of stairs (rather than take the elevator) because they were afraid that the assailants would see them in the building lobby and attempt to rob them, makes no sense. Mr. Langford said that when he peeked around the corner of the building, the robbery was still in progress at the far end of the parking lot. Thus, the fastest way to evade the assailants would have been to head immediately to the front lobby of the building and take the elevator upstairs. Alternatively, if MT and Mr. Langford were genuinely concerned about being observed by the assailants in the building lobby, they could have simply retraced their steps by walking up to the second floor and taking the elevator upstairs. I thus reject their evidence that they decided to walk up 14 flights of stairs in order to evade the assailants who were in the process of robbing Mr. Bui.

[70] These concerns over MT’s and Mr. Langford’s credibility are so significant as to cause me to reject their evidence in its entirety.

[71] That said, the W.(D.) framework requires me to find that there is evidence that I do accept that persuades me beyond a reasonable doubt that Mr. Langford was the person who assaulted Mr. Bui. Moreover, since the Crown case on identity is entirely circumstantial, in order to find Mr. Langford guilty, I must find that the only reasonable explanation that the evidence, or lack of evidence, permits is that he was the assailant.

[72] The key witness for the Crown was Michael Bui. For the most part, Mr. Bui testified in a straightforward manner, and his evidence was generally both internally and externally consistent. Nevertheless, he was unable to identify Mr. Langford as the assailant. Nor did he necessarily believe that the assailant and MT were working together. Although he thought this might be the case, since the assailant appeared to assist MT in getting out of the car, Mr. Bui said that he was not sure that they were in fact working together.

[73] I also cannot ignore the fact that Mr. Bui appeared evasive when asked about whether he had initially told the police officers that the assailant had attacked him through the driver’s door. In the course of his cross-examination, he said a number of times that he did not recall “specifically” having said this to the officers, although he conceded that it was possible that he had done so since he was concerned that he might get into trouble if he mentioned the presence of the girl in the car. He also acknowledged that the first time he had mentioned the assailant as having opened the front passenger door was in November 2019, when he gave a video statement to the police.

[74] I conclude that Mr. Bui initially told the officers that the assailant had opened the driver’s door, as part of a “cover story” to ensure that he didn’t get into any trouble from the involvement of the girl. But what I cannot account for is why, when the officers later told him at the hospital that he could be honest about what had happened, he failed to mention that the assailant had entered through the passenger door rather than the driver’s door.

[75] Moreover, it is certainly not helpful to the Crown’s case that MT testified that the assailant came through the driver’s door rather than the passenger door. Even though I have rejected her evidence, the fact that both she and Mr. Bui gave evidence supporting this version of events leaves me uncertain as to which door the assailant used to access the car.

[76] In my view, the Crown’s case is entirely dependent on a finding that the assailant came through the passenger door, with the assistance of MT. If that is what happened, then a reasonable inference is that MT and the assailant were working together. It is admitted that MT and Mr. Langford were in a relationship, and that they were together than night, which could support a further finding that Mr. Langford was the assailant.

[77] But if the assailant came through the driver’s door, then this would give rise to a reasonable doubt as to whether there was a connection between MT and the assailant. There being no other evidence directly tying Mr. Langford to the assault on Mr. Bui, the inevitable consequence is that I would be unable to find beyond a reasonable doubt that Mr. Langford was the assailant.

[78] Mr. Langford admits to being present and nearby at the time of the robbery. But merely being present at the scene of a robbery is not proof that he committed the robbery. Given the frailties in the Crown’s evidence on identity, I am left with a reasonable doubt as to whether Mr. Langford was the assailant.

[79] Mr. Langford is therefore entitled to an acquittal on the four counts before the court.

Disposition

[80] I find Mr. Langford not guilty of all counts in the indictment.

P. J. Monahan J.

Released: October 7, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DION LANGFORD

REASONS FOR JUDGMENT

P.J. Monahan J.

Released: October 7, 2022

[^1]: RSC 1985, c. C–46 (the "Criminal Code"). [^2]: 2016 SCC 33, [2016] 1 S.C.R. 1000 ("Villaroman"). [^3]: Villaroman, at para. 36. [^4]: Villaroman, at para. 37. [^5]: R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22, quoted in Villaroman, at para. 42. [^6]: Villaroman, at para. 42. [^7]: 1991 93 (SCC), [1991] 1 S.C.R. 742. [^8]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at para. 5. [^9]: See R. v. D.M., 2022 at para 58. [^10]: R. v. Walker, 1994 8725 (ON CA), [1994] O.J. No. 827; R. v. Figliola, 2018 ONCA 578 at paragraph 44