ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANE JABOUR
Counsel:
Mark Reiger, for the Crown
Dane Jabour, self-represented
Adam Goodman, Amicus
HEARD at Toronto: January 19, 21, 22, 26 and 28, 2026
DAVIES J.
A. Overview
1Mr. Jabour is charged with three counts of aggravated assault. It is alleged he stabbed Rafal Janowski, Justin Bachlow and Casey Budney on July 7, 2023 in Bellevue Square Park.
2Mr. Jabour does not dispute that Mr. Janowski, Mr. Bachlow and Mr. Budney were stabbed. Nor does he dispute that the injuries they sustained are sufficiently serious to meet the definition of an aggravated assault. The only issue I have to decide is whether the Crown has proven beyond a reasonable doubt that Mr. Jabour is the person who stabbed them.
3For the following reasons, I find that the Crown has not proven beyond a reasonable doubt that Mr. Jabour stabbed Mr. Janowski, Mr. Bachlow and Mr. Budney on July 7, 2023 and he is acquitted of all charges.
B. Summary of Events of July 7, 2023
4Before assessing the evidence about the identity of the person who stabbed Mr. Janowski, Mr. Bachlow and Mr. Budney on July 7, 2023, I will set out the facts that are not in dispute about what happened that day.
5Bellevue Square Park is a park in downtown Toronto that occupies a full city block. In the northeast corner of the park is a paved area with tables and chairs. Just south of the tables is an elevated wooden deck that functions as a stage. Along the north side of the park is a playground with a splash pad. There are washrooms between the deck and the splash pad. There are paths that intersect the park. The rest of the park is covered with grass and trees. The following diagram of Bellevue Square Park was filed as an exhibit at trial:
6There were dozens of people in Bellevue Square Park on the night of July 7, 2023. Some people were playing dominos at the tables in the northeast corner of the park. Others were playing music on the elevated deck. Others were just hanging out in grassy areas of the park.
7I received evidence from four people who were in the park that evening: Mr. Janowski, Mr. Bachlow, Mr. Budney and Rami Salem. They all knew each other from spending time the park.
8Mr. Bachlow arrived at the park at about 3:00 pm on July 7, 2023. In the summer of 2023, Mr. Bachlow went to the park once or twice a week. That evening, Mr. Bachlow was playing music and drinking with friends on the elevated deck.
9Mr. Janowski went to Bellevue Square Park after work on July 7, 2023. That evening, he was hanging out near the dominos table but was not playing dominos.
10Mr. Salem got to the park at about 6:00 pm or 7:00 pm. Mr. Salem had been going to the park almost every day for several years. On July 7, 2023, he was hanging out with some friends on the grass not far from the elevated deck.
11Mr. Budney arrived at the park at around 8:00 pm for a music event he had planned. During the event, he was also on the elevated deck.
12At some point after dark, Mr. Janowski got into a dispute with someone named “D” at one of the dominos tables. Mr. Janowski thought “D” was yelling at him so he shoved “D” off his chair, which caused a big commotion in the northeast corner of the park. During the commotion, Mr. Janowski was spat on and shoved to the ground from behind. Mr. Janowski got up and apologized to “D”. He tried to calm the situation down, but “D” threatened to call the police. At that point, Mr. Janowski decided to leave.
13As Mr. Janowski was getting ready to leave, a man that Mr. Janowski did not recognize approached him. After a brief exchange, the man stabbed Mr. Janowski in the stomach and in the arm.
14Mr. Janowski’s assailant fled west through the park. Mr. Janowski chased after him. Mr. Budney followed Mr. Janowski. Mr. Salem, who was still sitting on the grass by the deck, followed Mr. Janowski and Mr. Budney.
15Mr. Salem caught up to Mr. Janowski in the middle of the park. Mr. Salem could see that Mr. Janowski had been stabbed. Mr. Salem called 911 and walked Mr. Janowski to Toronto Western Hospital, which is one block west of the park.
16Mr. Budney continued the chase the person that had stabbed Mr. Janowski. Mr. Bachlow came out of the washroom building as Mr. Budney ran by. Mr. Janowski was still nearby and told Mr. Bachlow that he had been stabbed and Mr. Budney was chasing his assailant. Mr. Bachlow then joined the chase with Mr. Budney.
17Mr. Budney and Mr. Bachlow caught up to Mr. Janowski’s assailant in the front yard of a house on the west side of Bellevue Avenue (which runs along the west side of the park). Mr. Bachlow and Mr. Budney were both eventually stabbed by the person they were chasing. Mr. Bachlow was slashed in the face and neck. Mr. Budney was stabbed in the torso.
18Mr. Bachlow walked by himself to Toronto Western Hospital after he was stabbed. He received 7 stitches to his face. Mr. Budney went back to the northeast corner of the park and waited for paramedics to arrive. He was transported to St. Michael’s Hospital where he underwent surgery to repair his diaphragm. Mr. Janowski was transferred from Toronto Western Hospital to Sunnybrook Hospital where he underwent emergency surgery to repair a puncture to his stomach.
C. Mr. Jabour’s arrest
19On July 25, 2023 – 18 days after the incident – the Toronto Police Service issued a press release asking for the public’s help locating the person they believed stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow. The press release contained Mr. Jabour’s name and two photographs. The photographs were downloaded by one of the investigators from an Instagram account with the username “sahpat”. That Instagram account had an embedded link to a Facebook account in the name of Dane Jabour.
20Mr. Jabour was arrested on July 28, 2024.
21Having compared the photographs in the press release to Mr. Jabour’s appearance in court during the trial, I am satisfied the photographs attached to the press release are photographs of Mr. Jabour.
D. Identification evidence
22I am satisfied beyond a reasonable doubt that the same person stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow. The more difficult question is whether the identification evidence satisfies me beyond a reasonable doubt that Mr. Jabour is the person who stabbed them.
23The Crown adduced identification evidence from Mr. Bachlow, Mr. Janowski, Mr. Budney, and Mr. Salem. Very briefly, Mr. Bachlow provided a description of his assailant to the police but otherwise could not identify the person who stabbed him. Mr. Janowski provided a description of his assailant the day after the incident and, nine months later, picked a photograph of Mr. Jabour out of a line-up as the person who stabbed him. Mr. Budney gave a description of the assailant to the police on the night of the incident and told the police that he recognized the person in the press release photographs as his assailant. Mr. Salem gave a brief description of the assailant to the 9-1-1 operator as he was walking with Mr. Janowski to the hospital. Mr. Salem spoke to the police on July 10, 2023 and said he had confronted the assailant on the street. In April 2024, Mr. Salem picked a photograph of Mr. Jabour out of a photo line-up as the person who stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow.
24Great caution is required when assessing identification evidence because there is a real danger that even an honest, credible witness will be wrong about their identification.
25At its core, identification evidence is simply the witness’s opinion that the person they have identified is the person who committed the offence in question. It is important to scrutinize the basis for the witness’s opinion because a host of factors can impact the reliability of identification evidence. Research has shown that our memories are not photographic representations of reality. We only perceive and remember selective parts of our experiences. Our brains are constantly filling in missing information to create a logical and coherent memory of events. Research has also shown that the interpretive process by which memories are created is prone to error. Without realizing it, our brains can create a distorted or inaccurate memory of what we experienced. As a result, an eyewitness may honestly believe their memory accurately reflect the reality of what happened when, in fact, their memory is inaccurate, perhaps even grossly inaccurate: R. v. Miaponoose (1996), 1996 1268 (ON CA), 30 O.R. (3d) 419 (CA) at 422, R. v Hudson, 2020 ONCA 507 at para. 34.
26The risk of inaccurate identification evidence is heightened (a) when the witness is identifying a stranger or someone they do not know well, (b) when the pre-trial identification process has been tainted in some way and (b) when the circumstances of the identification are not conducive to an accurate identification: R. v. Tat, 1997 2234 (ON CA), [1997] OJ No. 3579 (CA) at para. 100, R. v. Gough, 2013 ONCA 137 at paras. 35-37. These concerns all arise to varying degrees in this case.
27The risks associated with eyewitness identification evidence may be reduced but are not eliminated if the witness is identifying someone they recognize or with whom they are acquainted. Caution is still needed, though, when considering the reliability of recognition evidence: R. v. Hudson, at para. 34. Like with eyewitness evidence, the reliability of recognition evidence is only as good as the witness’s ability and opportunity to observe the events in question: R. v. Girmay-Habtegabir, 2023 ONSC 6175 at para. 11. Of course, the extent of the prior relationship or acquaintanceship will be an important factor in assessing the reliability of recognition evidence: R. v. Spatola, 1970 390 (ON CA), [1970] 3 OR 74 (CA) at 81, R. v. M.B. 2017 ONCA 653at para. 46.
28The identification evidence given by Mr. Bachlow, Mr. Janowski, Mr. Budney and Mr. Salem raise different concerns. I will, therefore, assess each person’s evidence separately.
a. Identification evidence of Mr. Bachlow
29I found Mr. Bachlow to be a credible witness. However, he was unable to identify his assailant and the descriptions he gave are too generic to be of any assistance.
30Mr. Bachlow reluctantly spoke to the police at the hospital on July 7, 2023 while he was waiting for medical treatment. Mr. Bachlow was quite frustrated by how long it was taking for the staff to treat his injury. When asked for a description of his assailant, Mr. Bachlow responded, “I have no idea.” All Mr. Bachlow could tell the police that night is that his assailant was “not White.”
31Mr. Bachlow spoke to the police a second time on December 2, 2023 – almost five months after the incident. By that time, Mr. Bachlow had seen the press-release issued by the Toronto Police that contained two photographs of Mr. Jabour. Mr. Bachlow told the police he did not recognize the person in those photos.
32Mr. Bachlow provided a more detailed description of the assailant during his testimony at trial. Mr. Bachlow testified he had never seen the person before July 7, 2023. He testified the person they chased was 5’9” or 5’10” tall with tan skin and a medium build. Mr. Bachlow testified the person had dark hair in a bun and a slight beard. Mr. Bachlow testified by video and was not asked to identify Mr. Jabour during his testimony.
33Mr. Bachlow’s description of his assailant’s skin colour, hair colour, height and build is generally consistent with Mr. Jabour’s skin colour, hair colour, height and build. However, Mr. Bachlow’s description is so generic that it does not assist in positively identifying Mr. Jabour as the person who stabbed him and the others: R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21
b. Identification evidence of Mr. Janowski
34Mr. Janowski provided a description of the person who stabbed him to the police on July 8, 2023. He did not speak to the police again until April 21, 2024 – more than 9 months after the incident – when he gave a video-taped statement and participate in a photo line-up. Mr. Janowski identified a photograph of Mr. Jabour in the photo line-up as the person who stabbed him.
35I find that Mr. Janowski was a credible witness in the sense that he was trying to tell the truth. However, I find that his identification evidence is not reliable for several reasons.
The conditions in which Mr. Janowski interacted with his assailant do not favour a reliable identification
36The length of time a witness has to see the person in question, the lighting conditions at the time of the identification, and the level of stress involved in the events can all impact the reliability of identification evidence: R. v. Tat, 1997 2234 (ON CA), [1997] OJ No. 3579 (CA) at para. 100, R. v. Gough, 2013 ONCA 137 at paras. 35-37.
37I accept that Mr. Janowski believes he has a clear memory of his assailant. He testified that his assailant’s face was close to his face during the attack so he remembers what he looks like. However, the circumstances of Mr. Janowski’s interaction with his assailant did not favour the formation of a reliable memory.
38Mr. Janowski was stabbed during a very chaotic, stressful situation. Mr. Janowski admitted that he caused a big commotion in the northeast corner of the park when he assaulted someone who was playing dominos. Mr. Janowski testified there were at least 30 people in the area when the commotion started. During the commotion, Mr. Janowski was spat on and shoved to the ground from behind. Mr. Janowski testified that tried to de-escalate the situation but was unsuccessful so he decided to leave. As Mr. Janowski was putting on his backpack to leave, a man approached him and said, “your homebody wants to talk to you.” Mr. Janowski testified he did not know the person so he yelled, “I don’t even know you, get out of here.” A few seconds later the man stabbed him in the stomach and the arm. Mr. Janowski testified there was still a lot of commotion going on when he was stabbed. The man then ran west through the park and Mr. Janowski chased him. Mr. Janowski stopped running when he got to the middle of the park because the pain in his stomach was so severe. Mr. Janowski’s only opportunity to see his assailant occurred in the midst of the chaos of the commotion he had caused.
39Mr. Janowski also had only a brief opportunity to look at his assailant. I appreciate that Mr. Janowski’s assailant was standing right in front of him and was within reach. However, the attack happened very quickly. Mr. Janowski testified they only exchanged a few words before he was stabbed. And Mr. Janowski testified that his assailant ran away a few seconds later.
40The stressful, chaotic, fleeting nature of the altercation between Mr. Janowski and his assailant increases the chance of an unreliable identification.
Mr. Janowski’s description of his assailant has changed over time.
41Mr. Janowski spoke to the police for the first time after he came out of surgery on July 8, 2023. In that interview, Mr. Janowski described his assailant as thin, frail and athletic. Mr. Janowski told the police the person who stabbed him was Hispanic or mixed-race and had an afro with a ponytail and a thin moustache.
42Mr. Janowski did not speak to the police again until April 21, 2024, more than nine months after the altercation. During that statement, Mr. Janowski described the person that stabbed him as 5’8” tall with a thin build. Mr. Janowski said he had a ponytail, a thin moustache and beady eyes. Mr. Janowski said his assailant was Hispanic or possibly Indigenous.
43At the preliminary inquiry, Mr. Janowski testified that the person who stabbed him was scruffy and had a beard. Mr. Janowski acknowledged that he had not described his assailant as having a beard before the preliminary inquiry.
44During his testimony at trial, Mr. Janowski described his assailant him as 5’8” tall with brown skin, shoulder-length black hair and a beard. He testified his assailant’s hair was loose.
45The mere fact that Mr. Janowski’s description has changed significantly over time undermine the reliability of his identification evidence. But what is particularly concerning about the changes is that Mr. Janowski’s description has become more consistent with the photographs of Mr. Jabour in the press release. Before the press release was issued, Mr. Janowski described his assailant as having an afro with a ponytail and a thin moustache. At trial, Mr. Janowski testified his assailant’s hair was shoulder-length and was loose. He also testified his assailant had a beard. In the photographs released by the police, Mr. Jabour has dark shoulder-length, loose hair and a beard. I am concerned that Mr. Janowski’s memory has, consciously or subconsciously, changed to correspond to the photographs he saw in the press release.
Timing of the photo line-up
46After his police statement on April 21, 2024, Mr. Janowski participated in a photo line-up. The photo of Mr. Jabour in the line-up was not one of the photos attached to the press-release. Mr. Janowski identified the photo of Mr. Jabour as the person who stabbed him.
47The nine-month delay between the incident and the photo line-up significantly undermines the value of the photo line-up evidence: R. v. Harvey, 2001 24137 (ON CA), [2001] OJ No 4749 (CA) at para. 28. Memories often fade and sometimes change with the passage of time. And by the time Mr. Janowski participated in the photo line-up, he knew Mr. Jabour had been arrested and he had seen police-issued photographs of Mr. Jabour. I am concerned that Mr. Janowski’s memory of his assailant was influenced, tainted or altered by the photographs in the press release and the knowledge he had that the police believed Mr. Jabour was his assailant. In other words, I am concerned that Mr. Janowski picked the photograph in the line-up that was of the person in the press release, not the person who stabbed him.
Potential for collusion
48Mr. Janowski spoke to several people about what happened on July 7, 2023 and who stabbed him. Mr. Janowski testified he talked to Mr. Salem about the incident. Mr. Salem also told Mr. Janowski about confronting the assailant at a job site close to Kensington Market. Mr. Janowski testified that Mr. Salem gave him a description of the person he confronted. Mr. Janowski testified that he spoke to other people he knew from the park about the incident as well and they talked about who had been identified as the suspect. I am concerned that these conversations, consciously or subconsciously, influenced or tainted Mr. Janowski’s memory of the events of July 7, 2023.
Other reliability problems with Mr. Janowski’s evidence
49I find that other aspects of Mr. Janowski’s evidence are also unreliable, which further calls into question the reliability of his identification evidence.
50For example, Mr. Janowski testified that after he stopped chasing his assailant, he saw Mr. Bachlow being slashed. He clarified that he only saw a silhouette of his assailant making a slashing motion towards Mr. Bachlow. Mr. Janowski testified he thought Mr. Bachlow got slashed in the neck but he later learned that he got slashed in the face. I do not accept Mr. Janowski’s evidence on this point. I find that Mr. Janowski could not have seen Mr. Bachlow being stabbed.
51Mr. Janowski testified he stopped chasing his assailant when he was close to the splash pad in the middle of the park. He testified that Mr. Salem was close to him when he stopped running and they went to the hospital together. Mr. Salem corroborated Mr. Janowski on this point. I, therefore, accept Mr. Janowski’s evidence that he stopped running in the middle of the park and then went to the hospital.
52To get to the hospital from the middle of the park, Mr. Janowski and Mr. Salem would have walked in a south-west direction. But Mr. Janowski’s assailant ran west through the middle of the park, across Bellevue Ave. and into the front yard of a house on the west side of Bellevue Ave. Mr. Bachlow testified it was quite dark in the front yard. It was dark in Bellevue Park as well. Video from the body-worn camera of one of the first officers to arrive on scene was filed as an exhibit, which confirms that the west side of the park was quite dark.
53I find that Mr. Janowski could not have seen Mr. Bachlow being slashed on the west side of Bellevue Ave. from where he was in the park or as he was walking to the hospital, particularly given how dark it was in the park. While I accept that Mr. Janowski thinks he saw the slashing, I do not accept that his memory is accurate.
54There is also conflicting evidence about Mr. Janowski’s level of intoxication. Mr. Janowski testified he had three beers and half a gram of marijuana. He testified at trial that he had a “little buzz” but was not intoxicated. However, in his police statement, Mr. Janowski said he had consumed four beers that evening but was still “completely sober.” Mr. Salem, on the other hand, testified that Mr. Janowski was intoxicated. If Mr. Janowski was intoxicated that could have further compromised his ability to observe and remember what was happening.
55Mr. Janowski’s evidence of seeing something he could not have seen is a powerful example of the danger of eyewitness evidence: R. v. Gough, 2013 ONCA 137 at para. 35.
Conclusion
56I appreciate that Mr. Janowski testified that he had seen his assailant in the park before the altercation on July 7, 2023. Mr. Janowski said he saw him earlier that day but they did not interact with one another before the commotion started. Mr. Janowski testified that it is “possible” he had seen his assailant in the park or in Kensington Market before July 7, 2023. However, the fact that Mr. Janowski said to his assailant, “I don’t even know you” suggests that, at most, they had a passing acquaintance, which is not sufficient to overcome the frailties with his identification evidence.
57I also appreciate that Mr. Janowski identified Mr. Jabour in the courtroom as the person who stabbed him. However, in-court identifications are inherently dangerous. By the time Mr. Janowski testified at trial, he had seen police-issued photographs that identified Mr. Jabour as the suspect, he knew Mr. Jabour had been arrested, he had spoken to other people about who stabbed him and he had seen Mr. Jabour in court at the preliminary inquiry. As a result, Mr. Janowski’s identification of Mr. Jabour in court has no value and does not increase the reliability of his other identification evidence.
58While I have no doubt about Mr. Janowski’s credibility, I am unable to accept his identification evidence as reliable.
c. Identification evidence of Mr. Budney
59Mr. Budney did not testify at trial. The police could not locate Mr. Budney so the Crown brought an application to admit his police statement and his testimony at Mr. Jabour’s preliminary inquiry for the truth of their contents, which I granted: R. v. Jabour, 2026 ONSC 421. My ruling on the Crown’s application only dealt with the admissibility of Mr. Budney’s evidence. I now have to assess the credibility and reliability of his evidence in the context of all the evidence at trial. As with any witness, I can accept some, all, or none of what Mr. Budney said in his police statement and at the preliminary inquiry.
60Mr. Budney spoke to the police for the first time when he was still in hospital. At that time, he described his assailant as 6’0” or 6’1” tall with a thin build. He also told the police his assailant was tanned and had long, dark, curly hair.
61Mr. Budney next spoke to the police on November 24, 2023 – more than four-months after the incident. At that time, he described his assailant as a male, 5’10” or 5’11” tall with a thin to medium build, light tanned skin and long hair. Mr. Budney told the police his assailant was carrying a side bag.
62At the preliminary inquiry, Mr. Budney identified the person in the photographs attached to the press release as the person who stabbed him.
63I have several concerns about the reliability of Mr. Budney’s identification evidence.
Mr. Budney’s evidence was contradicted by Mr. Bachlow and Mr. Janowski
64While some of Mr. Budney’s version of events was corroborated by the other witnesses, he was contradicted by Mr. Bachlow and Mr. Janowski in several important ways.
65Mr. Budney told the police he was running a music event on the evening of July 7, 2023. As the event was winding down, Mr. Budney noticed a quarrel by the dominos tables. Mr. Budney told the police he saw someone move their arm towards Mr. Janowski. Mr. Janowski jumped back and said he had been slashed. Mr. Budney told the police he saw the person motion a second time towards Mr. Janowski. At the preliminary inquiry, Mr. Budney testified that he did not see anyone yell at Mr. Janowski, push Mr. Janowski or body-check Mr. Janowski. Mr. Budney testified that if any of that had happened, he would have seen it from his position on the elevated deck. Mr. Budney’s evidence that he saw a “quarrel” before Mr. Janowski was stabbed is difficult to reconcile with Mr. Janowski’s evidence about causing a big commotion by the dominos tables before he was stabbed.
66Mr. Budney told the police he left the elevated deck and approached the person who stabbed Mr. Janowski. He told the police that he ordered Mr. Janowski’s assailant to put down his knife. He also told Mr. Janowski’s assailant he was under arrest three times. Mr. Budney told the police that the assailant started to back up and he said, “you’re not going anywhere.” The assailant then sprinted across the park and he chased him. At the preliminary inquiry, Mr. Budney testified that he interacted with the assailant for approximately 30 seconds.
67Mr. Janowski contradicted Mr. Budney’s evidence about confronting the assailant and telling him he was under arrest. Mr. Janowski testified that the assailant ran away as soon as he was stabbed and he immediately gave chase. Mr. Janowski testified that he did not know where Mr. Budney was during the altercation and did not see Mr. Budney interact with and his assailant.
68I appreciate that people can see different things when they witness the same event from different perspectives. However, Mr. Janowski’s version of events and Mr. Budney’s version of events cannot both be true. Mr. Janowski described his assailant running away as soon as he was stabbed. Mr. Budney describes intervening in the altercation and having a 30-second conversation with the assailant before he ran away. I find that Mr. Janowski’s version of events is more credible and reliable than Mr. Budney’s. As a result, I do not accept Mr. Budney’s evidence that he spoke to the assailant before the assailant fled.
69Mr. Budney told the police that as he passed the washrooms in the centre of the park, Mr. Bachlow came out and asked what was happening. Mr. Budney told Mr. Bachlow that Mr. Janowski had been stabbed. Mr. Budney told the police that he and Mr. Bachlow chased Mr. Janowski’s assailant. Mr. Budney said they caught up to the assailant in the front yard of a house on the west side of Bellevue Ave. This portion of Mr. Budney’s evidence was corroborated by Mr. Bachlow. However, Mr. Budney’s description of what happened after they caught up to the assailant is entirely inconsistent with Mr. Bachlow’s recollection.
70On the one hand, Mr. Budney told the police that Mr. Bachlow followed the assailant into the front year of the house. Mr. Budney said he did not see the interaction between Mr. Bachlow and the assailant. He just heard Mr. Bachlow say, “he slashed me.” Mr. Budney told the police that as he was looking at the slash on Mr. Bachlow’s face, he felt something poke his side. Mr. Budney told the police he backed away and the person came at him again. Mr. Budney told the police that as he was falling backwards, he was stabbed a second time. Mr. Budney told the police he never touched his assailant. Mr. Budney told the police after he was stabbed he heard the assailant say, “stay away from me” and he heard Mr. Bachlow say, “You’re under arrest.”
71On the other hand, Mr. Bachlow testified that it was Mr. Budney who went into the front yard and it was Mr. Budney who was stabbed first. Mr. Bachlow testified there was a physical scuffle between Mr. Budney and the person they were chasing. Mr. Bachlow testified that Mr. Budney and the assailant were grappling with each other and pushing each other. Mr. Bachlow testified that during the scuffle, Mr. Budney fell onto his back. When Mr. Budney got up, Mr. Bachlow saw that Mr. Budney had been stabbed in the stomach. Mr. Bachlow testified that the assailant walked towards him after Mr. Budney was stabbed. Mr. Bachlow testified he was still on the sidewalk. Mr. Bachlow testified he outstretched his arms to try to stop the assailant from leaving. Mr. Bachlow testified that he never touched the assailant. Mr. Bachlow testified that the assailant swung at him and hit him in the side of the face. Mr. Bachlow stumbled backwards and the assailant ran north on Bellevue Ave.
72Because Mr. Budney did not testify, I do not know how he would respond to or explain the significant inconsistencies in the evidence. Regardless, the fact that so much of his evidence was contradicted by other evidence undermines the reliability of all his evidence.
73Having rejected Mr. Budney’s evidence that he interacted with the assailant near the dominos tables, I find that Mr. Budney would have had only a very brief period to observe his assailant after they caught up to him on the west side of Bellevue Ave. Whether Mr. Budney was stabbed first or Mr. Bachlow was stabbed first, that was undoubtedly a frightening encounter that unfolded very quickly. And it was dark in the front yard. The length of the encounter, the stressful nature of the encounter and the poor lighting all detract from Mr. Budney’s ability to accurately identify his assailant.
Mr. Budney’s evidence was internally inconsistent
74Mr. Budney gave inconsistent evidence about how many times he had seen his assailant before July 7, 2023.
75During his police statement, Mr. Budney said he spent a lot of time in Bellevue Square Park. He said the people who frequent the park are a tight community. Mr. Budney told the police that he would notice when someone new came to the park and he liked to say hello.
76Mr. Budney told the police he did not know the name of the person that stabbed him or any nickname he used, but he had seen him in the park once before July 7, 2023. Mr. Budney describe an incident a couple of weeks before the stabbing when the person that stabbed him inserted himself into a dispute between two of Mr. Budney’s friends. At the preliminary inquiry, Mr. Budney testified the person that stabbed him was a few feet away from him during that incident and was there for no more than five minutes.
77At the preliminary inquiry, Mr. Budney testified that he saw the person that stabbed him on two occasions before July 7, 2023. Mr. Budney testified that he first saw the person that stabbed him in a group of people by the dominos table a couple of weeks before July 7, 2023. Mr. Budney testified that the second time he saw the person that stabbed him was when he insinuated himself in the incident between his friends.
78Because Mr. Budney did not testify, I do not have an explanation for why he told the police he had only seen his assailant once and later testified he had seen his assailant more than once. Again, this apparent inconsistency detracts from Mr. Budney’s overall reliability.
Mr. Budney’s identification of Mr. Jabour could have been tainted by information he received after the attack
79The description Mr. Budney gave of his assailant on the night of the assault was quite generic. He told the police his assailant was 6’0” or 6’1” tall with tanned skin, a thin build and long, dark, curly hair. While Mr. Budney’s description is consistent with Mr. Jabour’s appearance, it is not sufficiently detailed to make a positive identification.
80By the time Mr. Budney gave a statement to the police and purported to identify Mr. Jabour as his assailant in November 2023, he had already seen the photographs of Mr. Jabour attached to the press release. Mr. Budney also knew the police had arrested Mr. Jabour. In his statement, Mr. Budney told the officer he recognized Mr. Jabour as soon as he saw the photos in the press release. Mr. Budney was not asked to participate in a photo line-up. I am concerned about the reliability of Mr. Budney identifying Mr. Jabour from the press release photographs. There is a real risk he identified Mr. Jabour because no alternates were presented to him. There is also a risk that his identification of Mr. Jabour was influenced by the fact that he knew the police thought the person in the photograph was the person that stabbed him. When a witness identifies a suspect from a single photo (or series of photos of the same person), it is similar to a witness identifying a suspect in court, which courts have repeatedly said has little or no value: R. v. Hibbert, at para. 49, R. v. Tebo, 2003 43106 (ON CA), [2003] OJ No 1853 (CA) at paras. 17-20.
81In addition to the concerns about Mr. Budney identifying Mr. Jabour through the press release photos only, by the time Mr. Budney gave his police statement, he had also received information from various people about who was involved in the incident. Mr. Budney told the police that he heard people talking about what happened on July 7, 2023 and who was involved. At the preliminary inquiry, Mr. Budney testified that information about the incident and the suspect had been passed around the people who frequent the park. Mr. Budney testified that the people who spend time in the park are like a family and they look out for each other.
82For example, Mr. Budney heard from other people that his assailant had been seen in a coffee shop in the Kensington Market a few days after the incident. Mr. Budney talked to his friend, Dave, who told Mr. Budney he knew the assailant and had a conversation with the assailant after the incident. Finally, Mr. Budney heard that Mr. Salem saw the suspect at a construction site close to the park.1 Mr. Budney gave inconsistent evidence about who told him about Mr. Salem seeing the suspect. Mr. Budney told the police that Mr. Salem called him while he was still in hospital and said that he saw the suspect at a construction and went to speak to the construction workers but “there was poor communication with the workers and they really didn’t want to get involved.” At the preliminary inquiry, Mr. Budney testified he heard that Mr. Salem saw the suspect at a construct site from a friend who came to visit him in hospital. Either way, the information Mr. Budney received is not consistent Mr. Salem’s version of that same event. Mr. Salem testified that he confronted the assailant directly, not workers at the other site. Mr. Salem said he asked assailant what had happened the day before and the assailant said something to the effect that it was self-defence and his lawyer was involved. Mr. Salem did not say anything about having difficult communicating with anyone at the other construction site.
Conclusion
83I accept that Mr. Budney had seen the person he identified as his assailant at the park before July 7, 2023. The fact that Mr. Budney was identifying someone with whom he was acquainted rather than a perfect stranger decreases the risks associated identification evidence but does not overcome the frailties with his evidence. The timing and manner of Mr. Budney’s identification of Mr. Jabour as his assailant created a very real risk that his memory of what happened and who was involved was influenced or tainted by the press release and by information he received from other people. The fact that so much of Mr. Budney’s evidence was contradicted by others also significantly undermines the reliability of all his evidence, including his identification of Mr. Jabour. I am not satisfied that Mr. Budney’s memory of what happened on July 7, 2023 and who was involved is reliable.
d. Identification evidence of Mr. Salem
84Mr. Salem gave a brief description of Mr. Janowski’s assailant to the 9-1-1 operator as they were walking to the hospital on July 7, 2023.
85Mr. Salem spoke to the police a second time on July 10, 2023 after he ran into the person that he thought stabbed Mr. Janowski and confronted him about the incident.
86Mr. Salem spoke to the police a third time on April 10, 2024, more than nine months after the incident. Mr. Salem participated in a photo line-up that day and identified the photograph of Mr. Jabour as the person who stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow.
87I also have several concerns about the reliability of Mr. Salem’s identification evidence.
Unreliable evidence about seeing the assailant’s face
88Mr. Salem testified he was on the grassy area just south of the elevated deck in the park when he saw Mr. Janowski, Mr. Budney and two other people chasing someone through the park. Mr. Salem ran after them because he was worried about Mr. Janowski and Mr. Budney. Mr. Salem caught up to Mr. Janowski in the middle of the park. He could see that Mr. Janowski had been stabbed. Mr. Salem testified he immediately took Mr. Janowski to the hospital. The fact that Mr. Salem took Mr. Janowski to the hospital is corroborated by his call to 9-1-1.
89Mr. Salem testified at trial that he did not know or recognize the person they were chasing but got a quick glimpse of the person’s face when that person was under a streetlight on Wales Ave., which runs along the south side of the park. I do not accept Mr. Salem’s evidence on this point for several reasons.
90First, Mr. Salem’s testimony at the preliminary inquiry is inconsistent with what he said at trial. At the preliminary inquiry, Mr. Salem testified that he never saw the face of the person they were chasing. At the preliminary inquiry Mr. Salem said he only saw the person’s back and ponytail before taking Mr. Janowski to the hospital.
91Second, Mr. Salem’s testimony about the person being on Wales Street was contradicted by both Mr. Budney and Mr. Bachlow. Mr. Budney and Mr. Bachlow both gave evidence that they chased the person through the park and into the front yard of a house on the west side of Bellevue Avenue. I accept their evidence on that point. I, therefore, find that Mr. Janowski’s assailant was never on Wales Ave. and Mr. Salem never saw the face of the person he was chasing. This finding undermines any probative value of Mr. Salem’s identification evidence.
92While I accept that Mr. Salem saw some features of the person he was chasing, his description was limited to his hairstyle. If Mr. Salem did not see the person’s face, he could not have reliably identified the suspect at a later date.
Unreliable evidence about confronting the suspect
93In July 2023, Mr. Salem was doing masonry work at a house of Roberts Street, close to Kensington Market. Mr. Salem testified that he was working on July 8, 2023. He testified that he went to another construction site on Roberts Street to dispose of some construction waste and recognized one of the workers at that site as the person who stabbed Mr. Janowski. Mr. Salem testified he confronted the person and asked, “what happened yesterday?” Mr. Salem testified that the other person said something along the lines of “it was self-defence and my lawyer is taking care of it.”
94Mr. Salem testified that he had seen the person he confronted a few other times on Roberts Street in the weeks leading up to the altercation in the park.
95Mr. Salem testified that he called the police after he confronted Mr. Janowski’s assailant and the police came to speak to him at his work site that day. In cross-examination, Mr. Salem denied the suggestion that he spoke to police a few days after the incident in the park. He also denied the suggestion that he spoke to anyone else about who was responsible for the stabbings before he confronted the person at the construction site. Mr. Salem was adamant he saw the person they chased on Saturday July 8, 2023 and spoke to the police the same day.
96I do not accept Mr. Salem’s evidence on the timing of the confrontation or his conversation with the police because his evidence is contradicted by the timing and the content of his police statement. The Crown conceded that the police met with Mr. Salem at his worksite only once and that happened on July 10, 2023, not on July 8, 2023. The police recorded their conversation with Mr. Salem on a body-worn camera. The police officer asked Mr. Salem what happened that morning. Mr. Salem said he had spoken to the person from the park at a job site up the street. In other words, Mr. Salem told the police he confronted the person on Monday morning, not on Saturday morning. I, therefore, find that Mr. Salem confronted someone at the other job site and spoke to the police on Monday, July 10, 2023.
97I also find that Mr. Salem spoke to various people about what happened in the park before he confronted the person that he thought attacked Mr. Janowski. In cross-examination, Mr. Salem agreed that other people in the park told him who stabbed Mr. Janowski but he said that happened after he confronted the person on Roberts Street. Mr. Salem denied he spoke to anyone about the July 7, 2023 incident before he confronted the person at the construction site. I do not accept Mr. Salem’s evidence on that point for several reasons.
98First, I have already found that Mr. Salem did not see the face of the person Mr. Janowski and Mr. Budney were chasing. I have found that Mr. Salem only saw the back of that person before he stopped to help Mr. Janowski. If Mr. Salem only saw the person from behind as he ran away and did not see his face, Mr. Salem could not have independently recognized him a few days later. Mr. Salem must have received information from someone else about who stabbed Mr. Janowski, and Mr. Salem must have used that information to identify the person he confronted.
99Second, during his statement on July 10, 2023, the officer asked Mr. Salem how he knew the person at the other construction site was the suspect and Mr. Salem said he confirmed it with a few friends. Similarly, at the preliminary inquiry Mr. Salem testified that he approached the person at the other job site because a few of his friends had confirmed for him that that was the person that stabbed Mr. Janowski and the others. At trial, Mr. Salem testified that one of his friends told him who the assailant was but he does not know how she figured out the assailant’s identity. I find that Mr. Salem spoke to various friends about who stabbed Mr. Janowski before the confrontation. I also find that, to the extent there was a confrontation, it was with someone his friends said was involved. I am not satisfied Mr. Salem independently recognized the assailant in the days after the incident.
100I appreciate that the police tracked down the photographs of Mr. Jabour that were used in the press release with information they received from people at the Roberts Street construction site where Mr. Salem says he confronted the assailant. On July 18, 2023, two police officers went to the Roberts Street construction site and spoke to the two crews that were working that day. The police received information about someone named “Diego” worked at that location. They received a photo of “Diego”, which was filed as an exhibit. The photo is of someone standing on a ladder, but the person’s face is not visible. It is, therefore, not possible to identify the person in the photo. The officers also received information that “Diego” used an Instagram account with the username “sahpat.” The photos of Mr. Jabour in the press release came from that Instagram account. At most, the evidence about how the photos were obtained proves that Mr. Jabour worked at the Roberts Street construction site at some point before July 18, 2023. That does not assist with the identification of the assailant. Even if Mr. Salem spoke to Mr. Jabour on July 10, 2023, I have already found that Mr. Salem thought he was the suspect because of information he received from other people about who was involved, not because of his own observations or memory.
101Dealing finally with Mr. Salem’s evidence about the content of his conversation with the person at the other construction site. Mr. Salem testified he asked the person “what happened last night?” and the person responded by saying it was self-defence and his lawyer was aware of what happened. The Crown argued that the content of that conversation confirms that Mr. Salem was speaking to the person who stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow. Mr. Crown argues that the other person’s response only makes sense if he was responsible for stabbings. I do not agree.
102I am not satisfied that Mr. Salem’s evidence about the content of their conversation is accurate. I have already found that this confrontation did not happen until July 10, 2023. Based on that timing, Mr. Salem would not have asked what happened the night before because the incident happened three days earlier. Mr. Salem’s account of their conversation is also different than what Mr. Budney said he heard about the conversation. Mr. Budney said Mr. Salem approached a group of construction workers but there was a language problem and they did not want to get involved. Given the other inaccuracies I have found in Mr. Salem’s evidence, I do not accept his evidence about the content of the conversation at the Roberts Street construction site.
103But even if I were to accept Mr. Salem’s account, it does not necessarily amount to a confession that the person Mr. Salem confronted stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow. Mr. Salem testified that he did not mention anything about a stabbing to the person he spoke to. He testified that he just asked the suspect what happened. Mr. Janowski testified he caused a big commotion by the dominos tables that resulted in a physical altercation. During the commotion, Mr. Janowski was shoved to the ground from behind and spat on. Mr. Janowski testified that several people were involved in that altercation. The response Mr. Salem received from the person he confronted would also makes sense if that person was at the park and involved in the earlier altercation by the dominos table.
Frailties with the photo line-up procedure
104The fact that Mr. Salem picked a photograph of Mr. Jabour out of the line-up nine months later does not increase the reliability of his identification evidence. The passage of time between the incident and the photo line-up alone undermines the reliability of Mr. Salem’s identification. In addition, by April 10, 2024, Mr. Salem had spoken to several people about the identity of the assailant. When Mr. Salem finished the photo line-up, the officer told Mr. Salem not to discuss the identification process or any details about the investigation with anyone and Mr. Salem replied, “I already did.” I am, therefore, concerned that Mr. Salem’s identification of Mr. Jabour as the assailant is tainted by information he received from other people and by the photos in the press-release.
105While I accept that Mr. Salem spoke to someone that he believes stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow in the days after the altercation, I am not satisfied he independently or accurately identified the assailant. I find his identification evidence is tainted by information from other people and from the press release and is, therefore, unreliable.
E. Conclusion
106Given the significant frailties with the identification evidence of each witness, I cannot be satisfied beyond a reasonable doubt that Mr. Jabour is the person who stabbed Mr. Janowski, Mr. Budney and Mr. Bachlow.
107I asked the parties to make submissions about whether the Crown had to prove that the person who stabbed Mr. Janowski, Mr. Bachlow and Mr. Budney was not acting in self-defence or in defence of another person. Given my finding that the Crown has not proven beyond a reasonable doubt that Mr. Jabour was the assailant, I do not need to address the issue of self-defence.
108Mr. Jabour is acquitted of all charges.
___________________________ Davies J.
Oral reasons delivered: February 27, 2026
Written reasons released: March 3, 2026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANE JABOUR
REASONS FOR JUDGMENT
Davies J.
Oral reasons delivered: February 27, 2026