Court File

Court File No.: CR-23-70000557-0000
Date: 2025-01-23
Ontario Superior Court of Justice

BETWEEN:
His Majesty the King
– and –
Ross Simpson

Appearances:
Kristy Wong, for the Crown
Ian McCuaig, for the Defendant

Heard: December 9, 10 and 12, 2024
Judge: E. Schabas

Reasons for Judgment

Overview

[1] On the evening of May 27, 2022, Jeffrey Newman arranged to meet his ex-girlfriend, Tiffany Busch, at a schoolyard on Donlands Ave. Newman and Busch had been in a relationship for about two and a half years but had split up about five weeks earlier. Their relationship had been somewhat irregular, as Newman said Busch “disappeared” on a few occasions for a week or so at a time and then would come back.

[2] Newman could not remember who had originally contacted the other on May 27, 2022 – they had exchanged text messages a few times, and although Newman was using his mother’s mobile phone at the time, Busch had that number from their text communications.

[3] Newman said Busch called him about getting back together. They decided to meet at a schoolyard where they used to hang out, near Donlands Subway Station in Toronto. They met about 10:30 p.m. at the rear of the school, on the north side of the building.

[4] Newman said they greeted each other affectionately, chatted and did a “toke” of fentanyl together. Newman said that they had previously been heavy users of fentanyl but that he had cut back to just using it on weekends. He described a “toke” as being about 0.1 grams of fentanyl, which just gave him a “little buzz.” He also said he had two beers earlier in the evening.

[5] Newman said that while they were talking by an exterior staircase attached to the school a man approached them wearing a hoody and asked for a cigarette. Newman said he didn’t have any cigarettes and the man walked away. Newman did not recognize the man, who had his hood on and was about 10 feet away.

[6] About five or ten minutes later, the man returned, carrying a bag of groceries, with his hood down. Newman said at this point he recognized him as “Big Ross”, whom he had met at a party about two months earlier that he had gone to with Busch. The party had been in an apartment in Scarborough hosted by one of Busch’s friends. There were about 10 people at the party, and people were doing drugs. Newman said he was introduced to Big Ross, but they didn’t speak much beyond being introduced. Newman said he was at the party for a couple of hours.

[7] Newman said he suspected that Busch and Big Ross were in a relationship. After Newman and Busch split up, Newman called Busch a couple of times and a man answered who he believed was Big Ross, who told Newman to stop calling Busch, saying that she was his girlfriend now.

[8] As Big Ross approached Newman in the schoolyard, Newman said Big Ross dropped the grocery bag and pulled out an extendible baton. Big Ross hit Newman on the left eye with the baton, splitting his eyelid in half and drawing blood. Newman described using his left hand to hold his eye in. He said he couldn’t see anything but blood. He said the baton broke into several pieces.

[9] Newman said that Busch then tried to get into his pockets, but he managed to run away to the south side of the schoolyard and over a fence into a parking lot next to Donlands Ave. He said Big Ross and Busch pursued him. Newman stopped in the parking lot, where people on the street could see him, hoping that Big Ross and Busch would leave him alone. But Big Ross and Busch nevertheless continued their attack, knocking him down and, after a struggle in which Newman was kicked several times, they managed to steal $100 in cash from him, his flip-phone, and fentanyl which he kept in the small change pocket of his jeans which was ripped by Busch when she took the fentanyl. The attackers then fled into the subway station.

[10] Newman found a smartphone that had been dropped by the attackers and, suspecting it belonged to Busch, entered her password which was known to him. It worked. Newman then called his brother for help, who then took him to Michael Guerin Hospital, where Newman arrived at 23:07 p.m.

[11] Police officers were present at the hospital on another matter and Newman reported the incident to them, giving a statement that was recorded by an officer’s body camera. Newman described the assault and his belief that the perpetrators were Busch and the person he knew as Big Ross. He did not know Big Ross’s last name.

[12] The police then attended at the schoolyard and found a broken baton, sunglasses and a grocery bag, among other things, in close proximity to where Newman said the attack had occurred.

[13] Newman’s injuries were visible on the body camera. He had cuts and bruises on his face and head consistent with being hit with a baton and kicked. His left eye was split. One of his fingers was also broken. Although Newman had several procedures over the next several weeks, he was permanently blinded in his left eye, and he has not recovered full use of his broken finger.

[14] DNA was found on the handle of the baton consistent with the DNA of the accused, Ross Simpson, who Newman knew as Big Ross.

[15] Simpson and Busch were charged with aggravated assault and robbery. Simpson was also charged with breaching a probation order in effect at the time that required him to keep the peace and be of good behaviour.

[16] The charges against Busch were resolved before another judge. The charges against Simpson alone proceeded before me.

[17] I heard from four witnesses: Newman, the two officers who met him at the hospital and attended at the schoolyard, and an expert in DNA analysis from the Centre for Forensic Sciences. I was also provided with photographs of the schoolyard taken a few hours after the incident, property found there, and photographs and medical reports of Newman’s injuries.

[18] The issue raised by this case is not whether Newman was attacked and robbed on May 27, 2022, but whether one of the attackers was Simpson. In order to find Simpson guilty, I must be satisfied beyond a reasonable doubt that he attacked and robbed Newman that night.

[19] There are several reasons why I am satisfied beyond a reasonable doubt that Simpson is guilty.

Analysis

[20] I found Newman to be a credible and reliable witness regarding the details of the assault and robbery. He was direct and candid about what he was doing at the school that night, and about his drug use. Hesaid he only recognized Simpson when he returned with the shopping bag and had his hood off. Although it was late at night, Newman referred to lights close to the stairs where he was attacked, which I could see in the photographs, and which would allow one to see a person’s facial features in that location.

[21] Newman’s description of the incident to the police, given very shortly after it occurred, was corroborated and supported by the findings of the police officers. They found pieces of the broken baton in the vicinity of the stairs where Newman said he was attacked. They also found a grocery bag close by, with chips in it. Newman’s sunglasses, which he usually kept on top of his head, were found close to the parking lot, along with his cigarettes.

[22] Although Newman was impeached on some apparent inconsistencies in his account, in my view they were explained and understandable, and do not detract from his identification of Simpson, or his credibility and the reliability of his observations.

[23] For example, at the preliminary inquiry when first asked what happened, Newman said that when the attacker came back “we were talkin' and I had my back turned and pulled out a weapon and struck me in the eye with it.” Newman disputed this was inconsistent with his account at trial, saying he was talking to Busch who was sitting on the steps while he was standing facing her with his back to the schoolyard. Newman said he heard a person approaching him and drop the grocery bag, which caused him to turn around and directly face the attacker when he was hit in the eye. In my view this is not an inconsistency. Newman provided more details at the preliminary inquiry, but his evidence was clear that he was facing the attacker at the time he was struck.

[24] The defence also argues that Newman could not have seen his attacker as he told the police his eye was full of blood and he “couldn’t see shit.” But Newman’s injury was just to one eye, and it was inflicted after he saw Big Ross. After being struck he was able to run away and get to a parking lot where he saw other people. When the attack ended, Newman saw a smartphone left on the ground. He was able to see out of his other eye.

[25] Newman also had more opportunities to identify his attacker as he was pursued and kicked by Simpson and Busch in the parking lot. There was a discrepancy about whether the attacker was wearing his hood over his head or was just wearing a hoodie. Newman testified that the hood was up when he first saw Simpson when he asked for a cigarette, and it was down when Simpson hit Newman with the baton. In his statement to the police Newman said the attacker approached him with his hood on. I do not regard this inconsistency, if it is an inconsistency, as significant or that it diminishes Newman’s identification of Simpson.

[26] The defence argues that it was dark, noting that the police had to use flashlights to find items in the schoolyard. However, as I have noted, there were lights in close proximity to the school and the stairs where Newman was attacked. The broken baton was found further away from the building, where a flashlight might have been needed by the police to see it.

[27] Much was made of the shopping bag and the apparent inconsistency between Newman’s description of it with its contents visible, or spilled, and the evidence of the officer who found it afterwards who said the bag was intact with contents inside. However, the officer had very poor notes and a poor recollection of where things were found. Newman recalled that the bag had chips and a bottle of pop, which was not inconsistent with the officer’s evidence. Newman referred to having seen the police photos of the contents, which may have affected his evidence on this issue; however, this does not, in my view, undermine the reliability of his identification of Big Ross.

[28] Recognition eyewitness evidence was addressed by the Court of Appeal in R. v. Lewis, 2022 ONCA 282. In that case, the witness to a violent altercation testified that he recognized the perpetrator who “was a casual acquaintance with whom he would have spoken a few times before, and whom he had seen around the bar scene.” (para. 7) Someone may have uttered the name “Lewis” at the scene, and later that night the witness found a photograph on Facebook of the person he believed was the attacker, whose name was Lewis.

[29] The Court of Appeal saw no error in the trial judge relying on this evidence. The Court noted that the witness “immediately recognized the appellant” during the incident and provided his name to the police before he searched Facebook. (para. 24) While one must be as cautious with recognition evidence as with any other type of eyewitness evidence, “triers of fact are entitled to take into account whether a witness is acquainted with an accused when assessing the reliability of that witness’s identification evidence.”

[30] As with the witness in Lewis, Newman provided a detailed account of the assault which was corroborated by evidence found at the scene and by his injuries. He said he clearly saw Big Ross before he was struck with the baton and was able to see his attackers when they continued to assault him in the parking lot. Shortly afterwards, he told the police the assailant was Big Ross. He told us of his prior meeting with Big Ross and I accept that he would have recognized him that night in the schoolyard.

[31] Defence counsel suggested that Newman’s identification of Simpson was affected by confirmation bias. Newman was upset that Simpson was now with Busch. However, this was not put to Newman and does not detract from my assessment that he was both credible and reliable in his immediate recognition of Simpson as his attacker, a recognition he also reported immediately.

[32] Newman testified about a Facebook exchange he had with someone he believed to be Big Ross and who identified himself as Ross Simpson, a copy of which he provided to police. Newman said he recognized Simpson’s photo from this Facebook page. I place no weight on this exchange; it occurred after the incident and after Newman had identified Simpson as the man who attacked him with a baton.

[33] Simpson’s DNA was found on the handle of the baton found in the schoolyard. Although scientists at the CFS no longer use the term “match”, the DNA was 29 billion times more likely to be from him than someone else. Although the DNA of two people was identified on the handle, that does not detract from the overwhelming likelihood that Simpson’s DNA was found on the baton.

[34] Counsel for Simpson explored the possibility of transference, i.e., that his DNA had been transferred to the baton by someone else – through touch or proximity to Simpson previously. The DNA expert agreed that the presence of Simpson’s DNA does not necessarily mean that he touched the handle, or that he did so recently; however, she noted that transference becomes less likely over time, and that the sample size can influence the conclusion as to whether there was transference.

[35] In my view, Simpson’s DNA found on the baton is strong circumstantial evidence that Simpson assaulted and robbed Newman. It defies coincidence that Simpson’s DNA would be on the baton yet he did not participate in the attack. This evidence, combined with the identification evidence from Newman, satisfies me beyond a reasonable doubt that Simpson was the attacker.

Conclusion

[36] The assault caused serious injuries to Newman, including cuts and the loss of an eye, thereby wounding him, which satisfies the requirements of an aggravated assault contrary to s. 268(2) of the Criminal Code. Further, Simpson stole from Newman using a weapon, the baton, satisfying the requirements of the offence of robbery under s. 343(d) of the Criminal Code.

[37] It is conceded that at the time of the offence, on May 27, 2022, Simpson was bound by a probation order issued on June 21, 2019 requiring him to keep the peace and be of good behaviour. Having committed the offences of aggravated assault and robbery without any reasonable excuse, Simpson breached that probation order and, accordingly, has committed a further offence contrary to s. 733.1(1) of the Criminal Code.

[38] Accordingly, I find Mr. Simpson guilty on all three offences charged in the Indictment.

E. Schabas
Released: January 23, 2025