COURT FILE NO.: YCJA J(P) 184/22 DATE: 2023 10 13

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: HIS MAJESTY THE KING

AND:

A.A. Defendant

BEFORE: Justice C. Petersen

COUNSEL: A. Gauthier and T. Powell for the Crown A. Lobel and S. Shabestary for the Defence

HEARD: July 17-21, 24-28, 31 and August 2, 3, 2023

ORAL REASONS FOR JUDGMENT

INTROduction

[1] I would like to begin by expressing my sincere condolences to the family and friends of Ethan Nelles, the young man who tragically lost his life 3 years ago to a senseless act of violence.

[2] Members of the public have been present throughout this trial. I believe that some of the persons in attendance are Mr. Nelles's loved ones, who are no doubt still grieving his loss. The trial must have been emotionally difficult for you, listening to witnesses describe the beating that Mr. Nelles endured, the injury that he suffered, and the final moments of his life.

[3] The attack on Mr. Nelles has been described in various ways throughout this trial as "the fight," the "physical altercation," the "scuffle", the "mêlé," or simply "the incident". It is clear from the evidence that it was not a fight. Mr. Nelles may have attempted to fight back against his attackers, but he was outnumbered. He was immobilized in a head lock, was punched by multiple assailants simultaneously, was pleading for them to stop, and was ultimately fatally stabbed by one of them in the chest. It is a euphemism to describe this as a "physical altercation" or "incident" and I will therefore call it was it was: an attack.

[4] Some of the young men who were involved in the attack or who witnessed the attack on Mr. Nelles testified during the trial. One of them, D.D., displayed unrestrained disdain for the court and flagrant disrespect for the criminal justice process. He made no effort to assist me, as the trial judge, in my fact-finding mission. Two other witnesses also appeared, at times, not to value the truth-seeking function of the trial. Their attitudes of indifference are profoundly unsettling. I can only imagine how upsetting that must be for the members of Mr. Nelles's family, who are seeking answers about what happened that day.

[5] To Mr. Nelles's relatives and friends, I wish I could have spared you these painful experiences. You have my deepest sympathy.

[6] But the decision I am tasked with making requires me to evaluate the evidence presented during the trial objectively and dispassionately, without sympathy for any of the parties involved. I must decide whether the Crown has proven that A.A. is the individual who stabbed Mr. Nelles.

[7] The Defence did not call any evidence in this case. The accused, A.A., has no obligation to call evidence because the onus of proving his guilt rests with the prosecution. Our criminal justice system operates based on the fundamental principle of the presumption of innocence. Every person charged with an offence is presumed to be innocent, unless and until the Crown proves their guilt. This is a vitally important justice principle that applies in every criminal trial in this country.

[8] A.A. therefore does not have to prove his innocence of the charge against him. He does not have to prove that someone else stabbed Mr. Nelles. He does not have to prove that he did not intend to cause bodily harm to Mr. Nelles, did not intend harm that was likely to result in Mr. Nelles's death, or was not reckless as to whether death ensued. A.A. does not have to prove anything at all.

[9] The burden of proof rests entirely on the Crown. From start to finish, that obligation never shifts to the Defence. Consequently, I draw no adverse inference against A.A. based on his decision to exercise his constitutionally protected right to remain silent and not testify at trial.

[10] Some of the relevant facts in this case are not in dispute. Mr. Nelles's cause of death is not in dispute. He was stabbed in the chest. Tragically, the wound penetrated the right ventricle of his heart. This fatal injury was inflicted by one of the group of teenagers who attacked him.

[11] The facts leading up to the attack are not really contested. Although witnesses' recollections of the events differ somewhat in their details, there is significant overlap in their accounts of what transpired that evening. Based on the totality of the evidence, I have made the following findings of fact:

a. On the evening of July 28, 2020, Mr. Nelles and his girlfriend, Isha Topiwala, drove to the area of [----] in Mississauga. It is a residential neighbourhood that has parkland and a footpath that runs behind and between townhouses. Many of the townhouses have fenced backyards, some of which open onto the footpath.

b. Mr. Nelles was there to sell marijuana to a stranger who had contacted him on SnapChat. He pulled his car over on the side of the road and two males approached the vehicle. After a brief exchange by the driver's side of the car, one of them grabbed the bag of weed from Mr. Nelles's lap and both ran off without paying for it. Ms. Topiwala yelled after them to run because she and Mr. Nelles had a gun, which was not true.

c. Mr. Nelles exited the car and took chase, but he did not catch them. The two males joined their friends who were in the fenced backyard of a townhouse where one of them, named V.V., lived. They realized that some of the weed had dropped to the ground, so the group decided to return near the area where the theft had occurred to retrieve it. They encountered Mr. Nelles and Ms. Topiwala who were, at that point, walking along the path looking for the thief. The group turned and ran. Mr. Nelles and Ms. Topiwala ran after them.

e. The group took refuge in V.V.'s backyard, but Mr. Nelles followed them and entered the yard through an unlocked gate in the fence. There were between 10 and 15 people in the yard, mostly teenage males, and a few teenage females.

f. Ms. Topiwala also entered the backyard behind Mr. Nelles, but she did not stay long. She retreated outside the fence. At some point, either inside the yard or behind the fence, she was holding a brick in her hand and had it raised above her head.

g. Inside the yard, Mr. Nelles tried to locate and identify the person who had stolen his drugs. The thief, whose name is B.B., had disguised his appearance by removing his sweater and glasses. Mr. Nelles did not recognize him.

h. Mr. Nelles was upset and was demanding to know which of them had taken the drugs. He was suddenly jumped from behind by one of the males named C.C., who put him in a headlock. Most of the other males then proceeded to beat him. During the attack, one of the assailants stabbed him in the chest, likely with a knife.

[12] The central issue in this case is the identity of the stabber. The question I must ask myself is whether the evidence adduced by the Crown during the trial establishes beyond a reasonable doubt that A.A. committed the stabbing. That is a high standard of proof. It is the standard that applies in every criminal case. It exists to prevent miscarriages of justice, to prevent innocent persons from being convicted of offences they did not commit.

[13] If there were a jury in this case, I would explain to them that a reasonable doubt is not an imaginary or far-fetched 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. It is a doubt that logically arises from the evidence or from the absence of evidence.

[14] To be clear, the question for me to answer is not whether I believe, based on the evidence at trial, that A.A. likely stabbed Mr. Nelles. Proof of likely or probable guilt is not proof of guilt beyond a reasonable doubt.

[15] I am not suggesting that the Crown must prove to an absolute certainty that A.A. was the stabber. Absolute certainty is an impossible standard, and our criminal justice system does not demand it. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than it does to probable guilt. In short, I cannot convict A.A. unless I am sure that he stabbed Ethan Nelles.

RULINGS ON ADMISSIBILITY OF EVIDENCE

[16] The evidence at trial includes the video-recordings of police interviews with three youths: B.B., C.C., and D.D. I admitted those video-recordings into evidence pursuant to s.715.1 of the Criminal Code, despite Defence counsel's objections. However, I excised portions of the recordings due to (i) the hearsay quality of certain statements made by the witnesses, (ii) the speculative nature of certain statements, and (iii) the fact that some statements pertain to other discreditable conduct of the accused - all of which is inadmissible under the rules of evidence. Except for the excised portions of the video-recordings, I have treated the police interviews as part of the witnesses' evidence-in-chief at trial.

[17] I have already provided oral reasons for my rulings under s.715.1 of the Code. I also provided oral reasons for why I denied the Crown's application to adduce into evidence a video recording of E.E.'s interview with the police. E.E. testified at the preliminary inquiry but was not called as a witness to testify in the trial, so there is no evidence in the trial record from him.

LACK OF DIRECT EVIDENCE

[18] I heard testimony from a bystander, Tayaab Tanveer, who observed the theft of Mr. Nelles's marijuana and also observed part of the foot chase that ensued. Mr. Tanveer did not witness the attack on Mr. Nelles and could not offer any evidence relevant to the issue of the identity of the stabber.

[19] Ms. Topiwala observed some of the attack on Mr. Nelles, but she did not witness the stabbing. She was on the opposite side of the fence, having exited the backyard when Mr. Nelles was jumped. She said she tried to peer over the fence but could barely see anything, just a group of people on top of Mr. Nelles, beating him. She heard his pleas for them to stop. She testified that she was not aware that Mr. Nelles had been stabbed until he exited the yard with blood on his shirt and said to her, "Babe, they stabbed me".

[20] Each of B.B., C.C. and D.D. testified that they did not see the stabbing occur. B.B. said he left the backyard before the attack started because he could tell that a fight was about to break out and he did not want to be involved. He heard punching and yelling but was outside the fence and could not see what was happening. He insisted that he did not witness the stabbing and did not even know it had occurred until Mr. Nelles exited the yard with a bloody shirt, holding onto his chest, and said, "He stabbed me."

[21] B.B.'s testimony that he left the yard is plausible. The situation was escalating, and he was the focus of Mr. Nelles's ire. He would have been motivated to leave. Moreover, his testimony that he was outside the fence when the attack started is corroborated by D.D.'s evidence. D.D. testified that B.B. was sitting beside him when Mr. Nelles first entered the yard but went out through the back gate before Mr. Nelles was assaulted. Furthermore, B.B.'s account of how he learned that Mr. Nelles had been stabbed is consistent with Ms. Topiwala's account, and she was also situated behind the fence. I therefore accept B.B.’s evidence that he left the yard and did not witness the stabbing.

[22] C.C. admitted to holding Mr. Nelles in a headlock while the other guys hit him. He said he was physically closest to Mr. Nelles, but he did not see him get stabbed. He just saw punches being thrown. This evidence is plausible considering the position in which he was physically subduing Mr. Nelles. He would not have had a view of Mr. Nelles's chest, which is where Mr. Nelles was stabbed. C.C. testified that he released Mr. Nelles from the headlock after V.V.'s mother came into the yard and started yelling for them to stop. He heard Mr. Nelles saying, "I'm done. I'm done" and at that point, he let Mr. Nelles go. He told the police he noticed that Mr. Nelles's body "wasn't looking right". He recalled that Mr. Nelles's belly was bloody, everyone was screaming, and he heard people saying, "Why'd you stab him?" Up until then, he was not aware that a stabbing had occurred. I accept this evidence as credible.

[23] D.D. was present during the attack. He said there were so many people on top of Mr. Nelles that he could not even see Mr. Nelles's body. He testified that he did not see the stabbing. He said he did not know Mr. Nelles had been stabbed until the beating stopped. He then saw Mr. Nelles leaning against the fence with blood on his stomach and he heard Mr. Nelles say, "They stabbed me."

[24] Although D.D.'s evidence on this point is plausible, I have doubts about whether it is true. For reasons that I will explain shortly, I found D.D. to be an untrustworthy witness whose evidence ought not to be accepted unless it is corroborated by an independent source. I believe is it possible, indeed probable, that D.D. knows who stabbed Mr. Nelles but is withholding that information from the police and the court. The fact remains, however, that he did not testify to witnessing A.A. stab Mr. Nelles.

[25] Therefore, there was no direct evidence at trial that A.A. committed the stabbing. No witness testified that they saw him do it. The prosecution's case rests entirely on circumstantial evidence from which the Crown asks me to infer that A.A. is the stabber.

CIRCUMSTANTIAL EVIDENCE

[26] Circumstantial evidence can, in some cases, be sufficient to satisfy the standard of proof beyond a reasonable doubt. But extreme caution must be exercised in arriving at a conviction based solely on circumstantial evidence because there are dangers inherent in the path of reasoning involved when inferences are drawn from circumstantial evidence. The principal danger is the risk that I may fill in the gaps in the Crown's evidence by jumping to the conclusion that A.A. is guilty, without giving adequate consideration to alternative explanations for the circumstantial evidence.

[27] The Supreme Court of Canada explained it this way in the case of R. v. Villaroman, 2016 SCC 33, at para. 30: If we look outside and see that the road is wet, we may jump to the conclusion that it has been raining. That is a reasonable inference to make. But there are other reasonable explanations for the wet road. For example, a street cleaner may have just passed. If we hear a loud noise in the distance that could be street-cleaning equipment, we might re-evaluate our premature conclusion about rain having caused the wet road condition. Even if we do not hear a loud noise, that does not mean rain is the only reasonable explanation for the wet road. But if we have additional circumstantial evidence - such as the presence of rain drops on the top of vehicles or on the leaves of trees - that might cement our confidence in the correctness of our inference that it has rained.

[28] Any inferences drawn from circumstantial evidence must be logically assessed considering all the evidence, and the absence of evidence, and in light of human experience and common sense. On this point, I am required to follow the guiding principle articulated by the Supreme Court of Canada in the Villaroman case (at para. 30): Where proof of one or more essential elements of an offence relies largely or exclusively on circumstantial evidence, an inference of guilt drawn from the circumstantial evidence must be the only reasonable inference that such evidence permits. In other words, I can only find A.A. guilty if no other reasonable inference can be drawn from the whole of the evidence.

[29] I have grouped the Crown's circumstantial evidence in this case into three broad categories: (i) evidence that A.A. had a knife in his possession just prior to the stabbing and was wielding it as a weapon, (ii) evidence that he had a bloody knife in his possession shortly after the stabbing and was trying to get rid of it, and (iii) evidence that he implicitly admitted to the stabbing by failing to deny his friends' accusations that he was the stabber. I will deal with each of these three categories of evidence in turn.

ANALYSIS

Evidence that A.A. was wielding a knife just prior to the stabbing.

[30] First, I will review the evidence of Ms. Topiwala, who testified that she was threatened by a male with a knife just as the attack on Mr. Nelles was starting. She described how she was confronted by an individual who approached her and got close to her face, held a black folding knife about 30 cm away, with the blade pointed at her neck or throat area, and told her to "step the fuck back", "get the fuck out of here" or words to that effect. This threat caused her to retreat outside the yard through the gate in the fence.

[31] Her observations about that knife and about who was holding it are part of the circumstantial evidence upon which the Crown relies. However, the Crown asks me to accept only part of her evidence and to reject part of it as mistaken and unreliable.

[32] Ms. Topiwala described the knife as a medium size pocket-knife with a blade about 4 inches long. She said it was not a kitchen knife, rather it was "the kind that folds in and out." She could not recall whether the blade was curved or straight, but she remembered that it was black, and she was pretty sure that the handle was also black. She said the knife had a circle latch on it and the blade folded into the handle.

[33] A knife was retrieved by the police from nearby Lake [---] a few days after Mr. Nelles was killed. They were able to locate it because D.D. directed officers to where he had discarded it. The police investigation proceeded on the premise that the knife retrieved from the lake was the weapon used to kill Mr. Nelles. Based on the circumstances known to police, this was a reasonable inference, but I should note that there is no forensic evidence that links the knife to the stabbing.

[34] The knife was marked as an Exhibit at trial. It is an all-black folding knife with a 3.5" blade. It has a silver circular pivot where the blade folds into the handle. It is consistent with the knife described by Ms. Topiwala.

[35] Ms. Topiwala testified that the person wielding the knife was one of the two Black males who had earlier approached Mr. Nelles's car supposedly to purchase marijuana. The consistent evidence of multiple witnesses at trial establishes that those two individuals were B.B. and the accused, A.A.

[36] During his testimony, B.B. denied threatening Ms. Topiwala with a knife. He denied having a knife in his possession or any weapon on him at any point that day. No other witness reported seeing a knife in B.B.'s possession.

[37] The Crown asks me to infer, based on the combined evidence of Ms. Topiwala and B.B., that it was A.A. who held the knife up to Ms. Topiwala's throat. If I draw that inference, it would place an open black folding knife in A.A.'s hand just moments before the stabbing occurred.

[38] I am not prepared to draw that inference because there is other evidence inconsistent with a finding that A.A. is the person who threatened Ms. Topiwala with a knife. When uniformed police officers first arrived at the scene, Ms. Topiwala was asked to provide a description of the assailants involved in the attack on Mr. Nelles. According to Officer Lynda Adams's notes, Ms. Topiwala described the person with the knife as a Black male, wearing beige pants and a black hoody, with a side bag. When the police interviewed Ms. Topiwala later that same night, she described the guy with the knife in a similar fashion, saying he was wearing khaki-coloured pants. She said the same thing when she testified at the preliminary inquiry. We know from other witnesses' testimony and from video surveillance that captured images of people fleeing the scene that neither A.A. nor B.B. were wearing light-coloured pants on the day in question.

[39] The Crown asks me to conclude that Ms. Topiwala was mistaken about the colour of the pants worn by the person who threatened her with a knife. She was uncertain about that evidence when she gave her statement to the police, and she admitted at trial that she might have been mistaken. On the other hand, she also may have been correct about the colour of the pants and therefore mistaken in her belief that the person holding the knife was one of the two individuals who had approached Mr. Nelles's vehicle.

[40] Furthermore, during her examination-in-chief, Ms. Topiwala described some of the personal characteristics of the two males who approached the car. Her descriptions included their perceived race and age, as well as their approximate height, build, and skin tone. She distinguished the thief - the one who grabbed the weed - as “shorter and lighter-skinned” than the other male who accompanied him. She was unequivocal in her testimony that the “shorter, brown-skinned” guy was the one who conversed with Mr. Nelles, then reached into the vehicle and stole the weed from his lap. She said that same shorter, brown-skinned guy later pointed a knife to her neck to get her to exit the backyard.

[41] The evidence of several witnesses establishes that B.B. is the one who took the marijuana from Mr. Nelles. B.B. admitted to this theft during his interview with the police (which became his evidence-in-chief), and he admitted it again under oath before me during the trial. Consequently, if I accept Ms. Topiwala's evidence that she recognized the guy who held a knife up to her throat as the same guy who earlier stole the weed from Mr. Nelles, that would lead to a reasonable inference that B.B. is the person who threatened her with a knife.

[42] The Crown asks me to reject this portion of Ms. Topiwala's evidence as mistaken and unreliable, arguing that there is real danger in relying on the brief observations of a traumatized individual. I agree. Eyewitness identification evidence is notoriously fallible, especially when the witness and the identified individual are strangers, or when the identification is made quickly under dynamic circumstances, which is precisely what happened in this case. Ms. Topiwala did not know either of the two males who approached Mr. Nelles's car. She had never seen them previously and she did not have an opportunity to observe them for long. She also did not know any of the other people in the backyard. The group of friends included many similarly aged Black male youth who were similarly dressed in mostly black clothing. The knife was brandished in her face just as they jumped on Mr. Nelles and began to attack him. She was fearful for her own safety and concerned about her boyfriend's safety. The atmosphere in the yard was charged and things shifted suddenly. She exited the yard quickly in response to the threat. In these circumstances, it would be too risky to rely on her evidence that she recognized the person holding the knife as the same person who stole the marijuana.

[43] Moreover, the evidence establishes that Mr. Nelles was unable to pick out B.B. as the thief among the crowd. Several witnesses testified that Mr. Nelles was specifically looking for B.B. when he entered the yard. He was asking for the guy who stole his weed; witnesses testified that he was saying, "Where the fuck is the person that stole my weed?", "Where's your boy?" and "Where's the guy who took it?". B.B. was in the yard, in plain sight, but he had removed his sweater and glasses, so Mr. Nelles did not recognize him. It is notable that Mr. Nelles would have had a closer look at B.B. than Ms. Topiwala when the two males had earlier approached his vehicle, because he was the one who interacted with B.B. on the driver's side. Ms. Topiwala was seated in the passenger seat. Still, Mr. Nelles did not recognize B.B. in the back yard.

[44] In these circumstances, I question the reliability of Ms. Topiwala's testimony that she identified the guy with the knife as the same person who stole the weed. I am not suggesting that she is a dishonest witness. I am simply stating that I have serious reservations about the accuracy of her perceptions given everything I know about what was going on in that moment.

[45] For these reasons, I agree with the Crown's submission that Ms. Topiwala's evidence identifying the person with the knife as the same person who stole the weed should be given little, if any, weight. Similarly, her evidence about the colour of his pants should be given little weight. However, I reject the Crown's argument that I should disregard only these parts of her identification evidence and accept her testimony that the guy who held the knife to her face was one of the two who had earlier approached Mr. Nelles's vehicle.

[46] I am not required, nor am I inclined to reject all of Ms. Topiwala's testimony simply because I question the reliability of her identification evidence regarding the man who threatened her with a knife. She was a candid and forthright witness who I consider to be credible in so far as I believe she was testifying truthfully to the best of her ability based on her honest perceptions and recollections of the events. I accept much of what she said. However, there is no rational basis upon which I can accept her testimony that the guy who threatened her with a knife was one of the two males who approached the car, while at the same time rejecting as unreliable her testimony that it was specifically the guy who grabbed the bag of weed.

[47] There is, therefore, no evidentiary basis upon which I can conclude that A.A. threatened Ms. Topiwala with a knife just prior to the stabbing. The Crown is not required to prove this fact beyond a reasonable doubt because it is not one of the essential elements of the offence with which A.A. is charged. But even on the lower standard of a balance of probabilities, I am not persuaded by the available evidence that A.A. was wielding a black folding knife as a weapon just prior to the stabbing.

[48] The only other witness who gave evidence that could place a knife in A.A.'s possession prior to the stabbing is D.D. D.D. told the police that he found a black folding knife at the park earlier that day and gave it to A.A. He said this occurred about one hour before the theft of Mr. Nelles's weed. He struggled to describe how the knife's folding mechanism functioned. He stated that it did not have a button on the back of the handle, but rather, "You'd have to, like, put something to the side" to open it. He told the police that the locking mechanism on the knife was broken and that the blade was therefore "really loose".

[49] The black folding knife that was entered into evidence as an Exhibit has a liner lock (i.e., a thin bar of metal that wedges into place under the blade when the knife is opened). The liner lock must be moved to the side with a thumb or finger to fold the blade into the handle. It does not need to be moved to the side to open the knife from a closed position, but I believe that the liner lock is the mechanism that D.D. was trying to describe. The locking mechanism on the knife is not broken, but if the blade is not completely closed into the handle such that it clicks into place, the blade remains loose and can open with a slight flick of the wrist. Based on my examination of the Exhibit, I have concluded that the knife adduced as evidence matches the description given by D.D. to the police of the knife he says he gave to A.A. a little over an hour before the stabbing occurred.

[50] Under cross-examination at trial, D.D. backed away from his earlier statement to the police. He did not directly contradict his evidence-in-chief (i.e., what he told the police), but he testified that he did not remember picking up a knife or passing it to A.A. This was a common theme during his testimony at trial. He claimed to have forgotten much of what happened on the day that Mr. Nelles was stabbed, and much of what he told the police a few days later. He responded, "I don't recall" to dozens, if not hundreds of questions under cross-examination, including questions about simple things that one would expect him to remember. For example, he purported not even to remember whether he was friends with at least half of the people present in V.V.'s backyard that day. He claimed his memory was foggy due to the passage of time and also because he has suffered two head injuries that may have negatively affected his memory. However, at trial, he was conveniently able to recall certain details that exonerate him from wrongdoing. For example, he remembered that he was unaware of the plan to steal Mr. Nelles's marijuana, and he specifically recalled that he did not punch Mr. Nelles during the attack.

[51] D.D.'s selective memory is not the only reason I found him to lack credibility. He contradicted himself repeatedly. He made statements in court that were inconsistent with what he previously told the police. He was generally evasive in answering questions. He repeatedly refused to admit obvious facts. He was flippant, sarcastic, insolent, intentionally vague, and at times combative and defiant.

[52] It is also worth noting that D.D. did not respond to a subpoena to appear as a witness at the trial. I had to issue a material witness warrant so the police could locate him and bring him into court. He ultimately attended of his own volition, but he was a few days late. He was consistently late throughout his testimony, which was conducted over three consecutive days. He arrived over one hour late each morning and was also often late returning after short breaks in the proceeding. He was unapologetic about wasting the court's time and seemed to relish in making everyone wait for him.

[53] This was not the first time that a material witness warrant had to be issued to secure D.D.'s attendance at a court proceeding. It was also required at the trial of an individual who was accused of shooting D.D. in the leg. D.D. clearly does not take the authority of the Court seriously.

[54] There are other good reasons to doubt the veracity of D.D.'s testimony. His police statement was given without the benefit of an oath or solemn affirmation. Furthermore, during the police interview, he exhibited concern for his own self-interest. He made several statements to distance himself from crimes that were committed that day, such as the theft of Mr. Nelles's marijuana and the attack on Mr. Nelles. He also asked questions and made comments revealing a concern that he might be charged for tampering with evidence because he disposed of the knife after the stabbing. He stated twice to the police that he washed the knife before throwing it in the lake because his fingerprints were on it, and he did not want to be associated with the stabbing.

[55] Given all these circumstances, I have no confidence in D.D.'s credibility. I agree with the Crown's submission that D.D. appears to have come to court with a pre-determined agenda to cause confusion for his own amusement. I am not prepared to accept his evidence-in-chief (i.e., statement to the police) that he gave the black folding knife to A.A. prior to the stabbing. I believe that he had that knife in his possession that day, because he described it accurately and was able to direct the police to where it had been discarded. I also believe it is likely that he washed his fingerprints off the knife, since no prints were found on the knife (although the lake water could also have removed any prints). But without corroborating evidence, I am not prepared to find, based on D.D.'s testimony alone, that he gave A.A. the black folding knife about an hour before the theft of Mr. Nelles's weed.

[56] After considering all the available evidence, as well as the gaps in the evidence, I conclude that the Crown has not proven that A.A. had the black folding knife, or any knife, in his possession prior to the stabbing.

Evidence that A.A. was Trying to Dispose of a Bloody Knife After the Stabbing

[57] The next category of circumstantial evidence is the testimony of witnesses who stated that A.A. was trying to get rid of a bloody knife shortly after the stabbing. D.D. told the police that, after the stabbing occurred and the crowd dispersed, he ran into A.A. on the street. He said A.A. gave him a knife and asked him to get rid of it. He told the police the knife had blood on it. He said he was unaware that Mr. Nelles had died at the time. He said he took the knife from A.A. and went into the washroom at the community centre, where he washed it in a sink. He then threw it into the lake.

[58] As I have already mentioned, the police later retrieved a knife from the lake. Based on D.D.'s statements that the knife had blood on it and that he washed it before discarding it, the police obtained a swab from the bathroom sink at the community centre and sent it for forensic examination. No blood was detected on the swab.

[59] During his cross-examination at trial, D.D. agreed with Defence counsel's suggestion that he may have been mistaken about having seen some blood on the knife. He also agreed with the suggestion that he may have washed the knife only because he wanted to remove his fingerprints from it and not because it was bloody. The latter statement is consistent with his evidence-in-chief (i.e., what he told the police) - namely that he washed the knife to remove his own fingerprints.

[60] I have already explained why I do not find D.D. to be a trustworthy witness. I rejected his testimony that he gave the black folding knife to A.A. about an hour before Mr. Nelles arrived in the neighbourhood. I would similarly reject his evidence about A.A. handing him a knife after the stabbing and asking him to get rid of it, but for the fact that C.C. partially corroborated D.D.'s testimony on that point.

[61] In contrast to D.D., I found C.C. to be a relatively forthright witness. I have concerns about the reliability of some of his evidence, but I am mostly satisfied about his truthfulness.

[62] Defence counsel cross-examined C.C. at length about his criminal record, which includes several convictions for crimes involving dishonesty, such as theft and robbery. His record also contains multiple breaches of court orders. In fact, C.C. readily admitted, under cross-examination, that he was in violation of bail conditions on July 28, 2020, when he attended at V.V.'s backyard. This history of criminal conduct gives me pause in assessing his credibility, but I am nevertheless persuaded that he was mostly honest when he gave his evidence, both when he was interviewed by the police (under oath) and when he testified in court before me.

[63] During his police interview (i.e., his evidence-in-chief), C.C. appeared calm and gave his statement in a forthright manner. He was not evasive and did not appear to be withholding information out of self-interest. Indeed, he volunteered facts that implicate him as a party to criminal offences. For example, he told the police that he logged into his SnapChat account so that his friends could message Mr. Nelles to set up the theft of the marijuana. He also admitted that he made the first move to start the attack on Mr. Nelles. He told the police that he put Mr. Nelles in a headlock and then everyone started punching him. He admitted that he kept Mr. Nelles immobilized during the beating until V.V.'s mom came outside to try to stop them.

[64] C.C. did not resile from any of these self-incriminating statements under cross-examination at trial. His testimony in court was similarly candid. He was cautious and reflective in giving his answers, but he did not try to evade hard questions. His recollection of the events was reasonably detailed, given the passage of time. Overall, I found him to be a largely credible witness.

[65] During the police interview, C.C. stated unequivocally that he did not see A.A. stab Mr. Nelles. However, he mentioned that A.A. was "the one that had the knife". When he made that statement, it was unclear at which point in the sequence of events he was saying that A.A. had a knife. In an apparent effort to clarify the timeline, the police officer told C.C. to go back to when he first arrived in the area that day. He asked C.C. whether he had seen any knives when he first got there. C.C. responded that, when Mr. Nelles was chasing him and his friends toward V.V.'s backyard, someone – he thought it was F.F. - threw him a kitchen knife. He recalled that he put that knife in a green sidebag and gave the bag to his friend S.S. He told the police that nothing happened with that kitchen knife because S.S. went home with it in the sidebag.

[66] At that point in the interview, the officer showed C.C. a photograph of the black folding knife that the police had retrieved from the lake and asked C.C. whether he had seen that knife before. C.C. responded, "Um, that's what [A.A.] had." The officer then asked him to explain how he knew A.A. had that knife. C.C. stated that, immediately after the stabbing, he and his friends all ran through and out the front of V.V.'s house. He said they crossed the street and A.A. then pulled out the knife and was saying, "What do I do? What do I do?" He said he told A.A., "I don't know. Get it away from me."

[67] The officer then asked C.C., "Did you notice that there was blood?" C.C. responded, "Um, yeah, there was, uh, I … yeah … there was a little bit of blood on his hand that's …" The officer then interjected, "So you saw a bit of blood on his hand?" and C.C. responded, "yeah."

[68] I am reluctant to accord much weight to some of this evidence because of the leading fashion in which it was elicited from the witness. Firstly, the officer did not ask C.C. to describe the knife he saw in A.A.'s possession before showing him a photograph of the black folding knife seized from the lake. Nor did he show C.C. a series of photographs of different knives and ask him if he recognized one of them. Secondly, the officer did not ask C.C. to describe what he observed when A.A. showed him the knife. Instead, he asked C.C. the suggestive question, "Did you notice that there was blood?" When C.C. responded tentatively to that question, the officer interrupted him and pressed the point, "So you saw a bit of blood on his hand?" It was only then that C.C. answered confidently, "yeah". Notably, less than a minute earlier, the officer had asked C.C. whether he saw blood on A.A. after the stabbing and C.C. had responded, "I - I'm not too sure. He had, like, a sweater on and stuff."

[69] During C.C.'s testimony at trial, the Crown asked him what about the knife in the police photograph caused him to identify it as the same knife A.A. had been holding. He responded, "the shape." He said he remembered there were two knives that day, a kitchen knife that someone tried to give him, but he gave it away, and a pocket-knife. He testified that he no longer remembers where he saw the pocket-knife. He said he cannot remember anything about the pocket-knife other than that it was foldable. He stated that he no longer remembers seeing the knife in A.A.'s hand and could not describe how A.A. was holding it.

[70] During his cross-examination, C.C. agreed with Defence counsel's suggestion that when he told the police the knife in the photograph had been in A.A.'s possession, he was using a process of elimination and making an assumption. He knew the police were investigating A.A. for murder. He had seen two knives on the day that Mr. Nelles was killed: a kitchen knife (which he gave to his friend S.S.) and a folding knife (in A.A.'s hand). Since the officer was showing him a picture of a folding knife, he assumed that must be the knife A.A. was holding.

[71] C.C. also confirmed, during his cross-examination, that he did not have an independent recollection of seeing the knife in the photograph in A.A.'s hand. He reiterated that it was just the shape of the knife in the photograph that triggered his assumption that it must be the same knife. I find this explanation to be both plausible and believable.

[72] The Crown argues that C.C.'s statement to the police (i.e., his evidence-in-chief) was candid and believable, whereas his testimony at trial should be discounted because he was obviously trying to protect his friend, A.A. There is some merit to this argument. In court, C.C. did appear eager to distance himself from some of the more incriminating elements of his statement to the police. The Crown submits that he was feigning memory loss because he conveniently forgot only the facts that most implicate A.A.

[73] I recognize that C.C., B.B. and D.D. are not only friends with A.A., but also part of a larger friend group that appears reluctant to implicate one of their members in criminal activity. D.D. told the police candidly that their friend group was not talking to each other about what happened "because people are, you know, worried about snitching and stuff, so they don't want to be talking." That ethos of not wanting to betray a friend overshadowed the Crown's case throughout this trial and complicated the credibility findings that I need to make with respect to these three Crown witnesses.

[74] C.C.'s possible desire to protect the accused out of misplaced friendship loyalty and possible desire to avoid acquiring the reputation of a snitch are certainly potential motives for him to downplay information that could implicate A.A. in the stabbing. But if that were the case, it is difficult to understand why those same motivating factors to withhold evidence would not have been operative when he was interviewed by the police in the summer of 2020.

[75] At the same time, the quality of the police interview is such that I am reluctant to rely on some of the statements made by C.C. during the interview. The leading questions asked by the officer would not have been permitted had C.C.'s evidence-in-chief been delivered in court. The fact that I admitted the video recording of the interview as part of his testimony pursuant to s.715.1 of the Criminal Code does not mean I can ignore the deficiencies in the interview. They negatively impact my assessment of the weight that can be afforded to that evidence.

[76] Taking all the above factors into account, I accept C.C.'s evidence-in-chief (i.e., what he said to the police) about seeing A.A. pull out a knife shortly after the stabbing and hearing him say, "What do I do? What do I do?" C.C. did not completely resile from that evidence during his cross-examination. And the fact that A.A. had a knife in his possession shortly after the stabbing is corroborated by D.D.'s testimony to the same effect.

[77] Moreover, although I reject as unreliable C.C.'s identification of the knife in the photograph as the same knife that A.A. was holding (because of the flawed method used to obtain that identification during the police interview), I am persuaded by other evidence that it is probably the same knife. The Crown is not required to prove this fact beyond a reasonable doubt because it is not an essential element of the offence with which A.A. is charged. D.D.'s statement to the police that he took the black folding knife from A.A. and threw it in the lake, combined with the fact that the knife in the photograph was retrieved from the lake by the police, leads me to conclude that the knife in the photograph is likely the knife that both C.C. and D.D. saw in A.A.'s possession after the stabbing.

[78] I will now address the issue of whether there was blood on either A.A.'s hand or the knife that he was holding. During his police interview, C.C. made no mention of seeing any blood on A.A. until the officer suggested it to him. The first time the officer asked if he saw blood on A.A., C.C. said he was not sure. The second time the officer asked -- when C.C. said he did see a little bit of blood on A.A.'s hand -- occurred after the officer showed him the photograph of the folding knife.

[79] At the preliminary inquiry, C.C. testified that, when he made that statement to the police, he was just guessing that there was blood on A.A.'s hand because he knew there was blood on the knife. During his cross-examination at trial, he stated that he did not see any blood on the knife when it was in A.A.'s hand. He explained that he observed blood on the knife in the photograph when it was shown to him by the officer. He said he assumed it was the same knife he had seen in A.A.'s hand, so he inferred a transference of blood from the knife to A.A.'s hand, which is why he told the police that there was a little bit of blood on A.A.'s hand.

[80] C.C.'s evidence with respect to the presence of blood either on A.A.'s hand or on the knife in A.A.'s hand shifted over time and was inconsistent and confusing. C.C.'s explanation for these discrepancies in his statements - namely that he jumped to conclusions based on blood that he saw on the knife in the photograph -- seems implausible at first. The forensic evidence confirms there was no blood on the knife retrieved from the lake. It is therefore highly improbable that the photograph shown to C.C. during the police interview depicted blood on the knife.

[81] However, the photograph admitted into evidence does not unambiguously show a clean knife. I do not know whether the photograph presented to C.C. during the interview was in colour or black and white. He signed a copy of the photograph during the interview. A black and white photocopy of that signed photograph was entered as an Exhibit at trial. In the black and white photocopy - which is the only evidence of the photograph in the record - there are unidentified dark spots beneath the knife, which could reasonably be perceived as blood stains, especially in the context of a murder investigation that involves a stabbing. There is also discoloration on the handle and blade of the knife, which could reasonably be (mis)perceived as blood. C.C.'s explanation for why he told the police there was a little bit of blood on A.A.'s hand when in fact he had not observed any blood is therefore plausible. I am consequently not persuaded that I should discount his evidence at trial as fabrication designed to protect his friend or his reputation among his friend group.

[82] B.B. told the police and testified at trial that he did not observe any blood on A.A. when they ran into each other after fleeing the housing complex where V.V. lived. However, he also told the police that he noticed A.A. was holding his hands out awkwardly, as though he did not want to touch his own clothes. The Crown asks me to infer from this evidence that A.A. had blood on his hands and was worried about getting it on his clothing.

[83] During his cross-examination at trial, B.B. conceded the possibility that he was mistaken about how A.A. was holding his hands. The Crown submits that this is another example of a witness trying to protect A.A. by dissociating from key inculpatory elements of his earlier police statement. In this instance, I agree with the Crown and find that B.B. was being truthful and accurate when he told the police he observed A.A. holding his hands out awkwardly. The statement was made spontaneously, without a leading question from the officer, and B.B. did not completely resile from it at trial.

[84] I am not, however, prepared to infer that A.A. had blood on his hands based on B.B.'s observation of A.A.'s ambiguous conduct after the stabbing, particularly since B.B. also told the police repeatedly that he did not see any blood on A.A. The officer asked him if he saw anything in A.A.'s hands and he said no. He did not say that A.A.'s hands were concealed, or that A.A. was too far away to see if there was anything in his hands. He clearly conveyed to the police that he saw A.A.'s hands. He also stated that he did not see any blood on A.A.

[85] I have already summarized D.D.'s inconsistent evidence about the presence of blood on the knife that A.A. gave him. It does not assist me in determining the issue. There is no forensic evidence to assist me - no blood was found on the knife or on the sink where D.D. washed the knife.

[86] Based on the available reliable evidence, and considering the gaps in the evidence, I cannot conclude that there was blood on A.A. or on the knife that he was holding after the stabbing. This raises reasonable doubt as to whether the knife in his possession was the murder weapon.

Evidence of Adopted Admissions

[87] Finally, the Crown argues that there is additional circumstantial evidence that proves A.A.'s guilt beyond a reasonable doubt. Specifically, the Crown submits that A.A. tacitly admitted to committing the stabbing by failing to deny his culpability when his friends accused him of being the stabber in the immediate aftermath of the attack on Mr. Nelles.

[88] In law, silence in the face of accusatory statements made by others, or an equivocal or evasive denial of responsibility in the face of such accusations, may constitute an adoptive admission of guilt where circumstances give rise to a reasonable expectation of reply and unequivocal denial: R. v. Gordon, 2022 ONCA 799, at para. 49. However, I am not persuaded that the circumstances in this case were such that A.A.'s silence or unresponsive answers to questions can be interpreted as an admission of guilt.

[89] D.D. told the police that, as soon as the attack on Mr. Nelles ended, one of their friends, T.T., screamed, "[A.A.] stabbed him!" D.D.'s testimony generally cannot be trusted, but other witnesses independently corroborated this evidence, so I accept it. This out-of-court statement (made by T.T.) was not admitted as evidence for the impermissible hearsay purpose of proving that A.A. stabbed Mr. Nelles, but it provides important context for what happened next.

[90] D.D. told the police that everyone started yelling at A.A., "What did you do? What did you do?" and he slapped A.A. upside the head. When asked how A.A. reacted, D.D. said he was silent and looked to be in shock.

[91] This part of D.D.'s evidence was not independently corroborated, so I am hesitant to accept it. But even if I were to accept it, it is clear from the totality of the evidence at trial that there would have been only a fleeting moment of A.A.'s silence because virtually everyone present, including A.A., then ran off. A.A.'s momentary silence in the circumstances is consistent with him being horrified, alarmed, or traumatized from having just witnessed a brutal stabbing. While one might expect that an innocent person would immediately deny their culpability when accused of committing a stabbing, in the shock of the moment and the utter chaos that ensued, the brief stunned silence of a 16-year-old teenager cannot necessarily be deemed to be an admission of his guilt.

[92] D.D. also told the police that he caught up to A.A. a few minutes later when they were running frantically down [----] Road. He said he asked A.A., "Bro, … what did you do?" and A.A. responded by saying, "I'm going home. I'm going home - I have to go." Once again, I have serious doubts about the trustworthiness of D.D.'s evidence, but even if I accept that this exchange occurred, it does not, in the circumstances, constitute an adopted admission of guilt by A.A.

[93] In his police interview, D.D. said he called A.A. the next day and told him he had to turn himself in because the situation was affecting all the people who were in the backyard. D.D. told the police that A.A. said he was scared to turn himself in. This is the closest that D.D.'s evidence comes to proving an adopted admission by A.A. D.D. said this phone conversation occurred the next day, not in the frantic aftermath of the stabbing. One might reasonably expect that an innocent person would respond to the suggestion that they turn themselves in with either a confused query ("For what?") or an unequivocal denial of culpability ("I didn't do anything. Why would I turn myself into the police?").

[94] During his cross-examination at trial, D.D. confirmed that he was telling A.A. to turn himself in based on what other people had said. He was consistent in his testimony (including during his statement to the police) that he did not see A.A. stab Mr. Nelles. That does not, however, change the reasonable inference that can be drawn from this exchange. If I were to accept that this phone call took place in the manner described by D.D., I could reasonably infer that A.A. implicitly admitted to doing something wrong when he said he was scared to turn himself in, rather than asserting that he had no reason to do so. It would not, however, be reasonable to infer that A.A. implicitly admitted to the stabbing. He was directly involved in planning and executing the theft of Mr. Nelles's marijuana, which ultimately led to Mr. Nelles's death. He may have also participated in the beating of Mr. Nelles, which culminated in the stabbing. A.A. could have been fearful of admitting this wrongdoing to the police. An admission to the stabbing is therefore not the only reasonable inference that can be drawn from the statement attributed to him by D.D.

[95] D.D. confirmed during his cross-examination that A.A. never outright admitted to him that he was the stabber. In my view, the statements D.D. attributes to A.A. - to the extent that D.D.’s evidence can be believed - are too ambiguous, in all the circumstances, to be construed as implicit admissions of guilt.

[96] The Crown also relies on evidence given by B.B., who told the police that he saw A.A. after all the friends scattered and ran off. B.B. said F.F. was running a bit behind him, and A.A. was further back. He recalled that, once they were out of the housing complex, he asked F.F. what happened and F.F. said, "[A.A.] stabbed him". This out-of-court statement by F.F. was not admitted as evidence for the impermissible hearsay purpose of proving that A.A. committed the stabbing, but rather simply to provide context for what happened next.

[97] B.B. told the police that when A.A. caught up to them, he asked A.A., "What happened?" He stated that A.A. did not admit to stabbing Mr. Nelles. He said A.A. did not really answer the question. He recalled that A.A.'s response was, "I turned around and it happened so quick."

[98] During his cross-examination at trial, B.B. claimed not to remember any of this. He did not, however, deny that it occurred. Despite his current lack of recollection of this exchange, I accept his evidence-in-chief, which was given to the police within 48 hours of the events.

[99] When B.B. asked A.A., "What happened?", he did so having just heard F.F.’s accusation that, "[A.A.] stabbed him", but the question would not have sounded accusatory to A.A. unless A.A. heard the accusation that preceded it. There is no evidence that A.A. overheard F.F. tell B.B., "[A.A.] stabbed him." On the contrary, B.B.'s evidence is that A.A. had not yet caught up to them at that point.

[100] These circumstances do not give rise to a reasonable expectation that an innocent person would respond to the question, "What happened?" with an unequivocal denial of culpability (e.g., "It wasn't me" or "I didn't do it"). A.A.'s response to the question is consistent with that of an innocent eyewitness to a stabbing who cannot provide details of what happened because it happened too fast. A.A.'s response, in the circumstances, cannot reasonably be construed as a tacit admission that he stabbed Mr. Nelles.

CONCLUSION

[101] In summary, the Crown has not established that A.A. threatened Ms. Topiwala with a black folding knife just as the attack on Mr. Nelles began, or that he had a black folding knife in his possession prior to the attack. The Crown has also failed to establish its contention that A.A. was holding the black folding knife, with blood on the knife and on his hand, immediately after the stabbing. The Crown has established that A.A. had the black folding knife in his possession, but that was a few minutes later, when he met up with friends after fleeing the scene and running some distance. There is no reliable evidence that the knife was bloody or that he had blood on him at that time. There is, however, evidence that he was panicky and was trying to get rid of the knife. He asked C.C., "What do I do? What do I do?", and he later gave the knife to D.D., asking him to dispose of it.

[102] A.A. did not say, "What have I done?" to C.C., or words to that effect, which could imply an admission that he was responsible for the stabbing. When he said, "What do I do?", C.C. understood him to be referring to what he should do with the knife. The knife may have been the weapon used to stab Mr. Nelles, so it is obvious why A.A., C.C. and D.D. all did not want to be associated with it. C.C. told A.A. to "get it away from me". D.D. washed it to remove his own fingerprints from it.

[103] It is reasonable to infer that A.A. was trying to dissociate himself from the presumed weapon, but that does not necessarily lead to the conclusion that he had committed the stabbing. He could have been trying to figure out what he should do with a knife that one of his friends had just given him after using it to stab Mr. Nelles. If possession of the knife shortly after the stabbing and a desire to rid himself of it were sufficient to prove that he committed the stabbing, the same conclusion could be reached with respect to D.D., who also had the knife in his possession shortly after the stabbing and washed his fingerprints off it and discarded it in the lake.

[104] The Crown argues that it would be fanciful to posit a scenario in which A.A. obtained the knife from someone else who committed the stabbing. I disagree. That is not a far-fetched scenario in the circumstances of this case. Earlier in the day, when this same group of friends were being chased by Mr. Nelles after the theft, F.F. passed a kitchen knife to C.C. C.C. then gave that knife to another friend, S.S., who took it home with him. Plus A.A. gave the black folding knife to D.D. after the stabbing and asked him to get rid of it, which he did. All this evidence reinforces the plausibility that someone other than A.A. could have committed the stabbing and then handed the knife to A.A., trusting that a friend would dispose of it for him.

[105] Notably, C.C. testified to the possibility that someone else in the backyard gave the folding knife to A.A. He stated that when he and others cut through V.V.'s house to flee the area, he was not running side by side with A.A. They caught up to each other later. The scene was chaotic, and people were scattering in different directions. He did not observe A.A.'s whereabouts or actions from the time he realized that Mr. Nelles had been stabbed until he ran into A.A. on the street after leaving V.V.'s house. C.C. was focused on fleeing the scene of a crime and was not paying attention to what A.A. was doing.

[106] The Crown argues that the circumstantial evidence in this case leads to the incontrovertible conclusion that A.A. stabbed Mr. Nelles. I disagree. I can understand why the police charged A.A. There is some incriminating circumstantial evidence that points to his culpability. But I cannot say that the only reasonable conclusion to draw from the totality of the evidence is that A.A. committed the stabbing. I am simply not sure that he is the person who stabbed Mr. Nelles. I have reasonable doubt and must therefore acquit him.

[107] A.A., I find you not guilty. You are free to go.

[108] To the family and friends of Mr. Nelles, I am truly sorry that this process has not brought you closure.

Petersen J.

COURT FILE NO.: YCJA J(P) 184/22 DATE: 2023 10 13

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – A.A. ORAL REASONS FOR JUDGMENT

NOTICE: It is an offence under s.110(1) of the Youth Criminal Justice Act (YCJA) to publish the name of the accused (A.A.) in this case or any other information that would reveal his identity as a person who was charged with and tried for the murder of Ethan Nelles. it is also an offence under s. 111(1) of the YCJA to publish the names of several crown witnesses (B.B., C.C., D.D. and E.E.) in this case, who were youths at the time of the events in question.

Justice C. Petersen Released: October 13, 2023