R. v. Bendu, 2021 MBPC 19

CITATION: R. v. Bendu, 2021 MBPC 19 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) L. Standil and A. Wood for the Crown ) - and - ) ) Charles Bendu Accused ) ) O. Plotnik for the Accused ) ) ) Judgment delivered: May 3, 2021 Restriction on Publication Pursuant to s. 486.31 of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. C.A. DEVINE, P.J. INTRODUCTION AND FACTUAL BACKGROUND [ 1 ] Mr.

Bendu was charged with uttering threats and obstruction of justice for intimidating a witness. The offences are alleged to have occurred on October 24, 2019 at the Health Sciences Centre in Winnipeg where C.P. was in hospital for injuries caused a few days before on October 21, 2019 by friends of Mr. Bendu in a violent kidnapping, robbery and aggravated assault: Rig Moulebou (“Rig”), Maracle Tamana (“Flex”) and Ciceron Biaya (“Chris”). C.P. reported the crimes to the police and gave a statement. Two of the three were arrested and charged. [ 2 ] A few days later, Mr.

Bendu showed up in C.P.’s hospital room and allegedly threatened to kill him or his family unless he recanted his statement to police. Mr. Bendu denied the offence; he said he visited C.P. in the hospital out of care and concern. [ 3 ] The only question in the case is factual: whether Mr. Bendu committed the threats. There are no legal issues as to whether the threats, if he made them, constitute the offences of uttering threats and obstruct justice. The decision can only be resolved by an analysis of the credibility and reliability of the witnesses’ evidence.

I heard the evidence of C.P. and four police officers who had dealings with him. I also heard evidence from the accused, Mr. Bendu. [ 4 ] The Crown proceeded by way of Indictment. The defence election was to the Provincial Court. [ 5 ] I will outline the evidence I heard from the Crown’s witnesses, and then the evidence of Mr. Bendu. Following that is a brief statement of the law governing the criminal standard of proof and analyzing testimony, and then a more detailed analysis of the evidence. Following that are my findings of fact and my decision.

THE CROWN’S EVIDENCE [ 6 ] C.P. testified about the offence on which the intimidation was predicated. He had been grabbed off the street late one night by friends of Mr. Bendu, beaten, robbed and thrown into the trunk of a car which seemed to be headed out of the city. His phone, shoes and other property had been stolen. He opened the trunk at one point and his kidnappers confronted him with a metre-long rifle with a 100- round ammunition drum attached. The assailants closed the trunk on him and continued to drive.

When C.P. heard the car turn onto a gravel road, he feared for his life and jumped out of the trunk. He was chased and stabbed in the back, but ran barefoot and then jumped into a deep ditch with bulrushes where he was able to evade being caught, and the kidnappers left. [ 7 ] He had broken his wrist when he jumped out of the vehicle and he had been beaten and stabbed. He broke into a car dealership to phone for help, but the lines were down, so he stole a car and drove to a friend’s house, that of Khosh Azizi (“Khosh”). Police and ambulance were called and he was taken to the hospital.

He gave the police a statement that night; he identified two of the kidnappers – he knew them as Flex and Rig. [ 8 ] He was still in the hospital waiting for surgery to his wrist a few days later when he had an unannounced visitor. Sometime after 3:00 p.m. on October 24, 2019, he awoke to find Mr. Bendu standing beside his hospital bed.

[ 9 ] He testified that he immediately knew it was not good; he did not know Mr. Bendu well enough for Mr. Bendu to come and visit him in the hospital. Mr. Bendu, whom he knew as “Prince”, was basically only a weed-smoking buddy. He also stayed at Mr. Bendu’s townhouse when he was “bouncing around” between residences in September. Mr. Bendu told C.P. that Khosh advised him that C.P. was in the hospital. [ 10 ] C.P. testified that he kept up the pretense that everything about the visit was okay; they went outside for C.P. to have a cigarette. While they were outside Mr. Bendu threatened him. Mr.

Bendu told him that he was aware that C.P. had “ratted” on Flex and Rig to the police and that he had better “revoke” his statement, or they would come for him and if they could not get him, they would come for his daughter, his brother or his parents. C.P. understood this as a death threat or threat of serious bodily harm to him or his family. Mr. Bendu had met his family members at their homes over the past months when he was getting rides in Mr. Bendu’s vehicle, smoking weed and dropping off and picking up things or people. C.P.’s daughter was five years old. He was terrified. [ 11 ] He told Mr.

Bendu that he had not told the police about Rig and Flex. He said that the police had viewed and seized video from the car dealership where he had jumped out of the car and the video showed their vehicle and Flex and Rig. [ 12 ] C.P. testified that he was very nervous during the visit, but he was not going to express that to Mr. Bendu. Nor would he flag down a police officer (who could be seen in one of the video segments from the hospital filed as exhibits). [ 13 ] As soon as Mr. Bendu left, C.P. told his mother they had to make a phone call because someone had made threats.

He testified that his mother called one of the officers who had left his card after taking his statement a few days before. He could not remember if he also called the police. But the police came to the hospital and he provided a video statement. [ 14 ] Subsequently, he did some research on social platforms, and after he was discharged from the hospital he met police at headquarters and showed them Mr.

Bendu’s Instagram profile and identified the third assailant, Ciceron Biaya, or “Chris”. [ 15 ] The Crown also called four police witnesses. [ 16 ] Detective Mymryk was involved in investigating the October 21, 2019 kidnapping, including interviewing C.P. at the hospital. He described C.P. at that time as appearing to be in a lot of pain, but “forthcoming, laid back, calm and matter of fact.” [ 17 ] Three days later on October 24, 2019, he received a phone call from C.P.’s mother. He had met her at the hospital on October 21, 2019 and had left his card with them. Ms.

P. told him that her son had just been threatened by a man in the hospital. Detective Mymryk was not on duty; he told Ms. P. to call 911, and he contacted Detective McDonald in the Major Crimes Unit (“Major Crimes”) to have a unit sent to the hospital to speak with C.P. [ 18 ] Ten minutes later C.P. called him, “panicked, scared, if not terrified.” His demeanor was completely different than it had been on October 21, 2019. Detective Mymryk testified that C.P. was “frantic, amped up, bordering on terrified.

It sounded like he was crying.” [ 19 ] Detective Mymryk testified that he took this very seriously; he also contacted Sargent Harbottle in Major Crimes. [ 20 ] Detectives Paul Karpenko and Jason Ulrich of Major Crimes were sent to the hospital to see C.P. The officers testified that C.P. appeared to be terrified: “crying, visibly shaking, shaky voice, quivering voice, jittery, and anxious”. He told them about Mr. Bendu’s visit to the hospital and the threat. Detective Ulrich testified that he had never seen a grown man so scared. [ 21 ] Detective Scott-Herridge was involved in the kidnapping investigation.

He testified that Flex and Chris were arrested for the offences. He was then assigned to follow-up on the obstruct justice and uttering threats offences. He met with C.P. on October 29, 2019 at police headquarters and was provided more identifying information about Mr. Bendu on social platforms. [ 22 ] Detectives Karpenko and Ulrich arrested Mr. Bendu on November 4, 2019. They knocked at his townhouse door on Tim Sale Drive and a woman identifying herself as Tabitha Grieve (“Tabby”) answered, stating that she did not know Mr.

Bendu, that he was not there, and that if they wanted more information they should come back with a warrant. She slammed the door. They stayed in the area and within an hour, a dark SUV pulled up with two black males, one of them being Mr. Bendu, who got out of the vehicle and walked up to the address. Police arrested him. [ 23 ] The agreed statement of facts filed in the trial states that Mr. Bendu was released by the police at 10:40 p.m. that night. At 11:45 p.m. he called 911 to report that there was a dead body on his couch at Tim Sale Drive. The deceased was Rig Moulebou.

The Court was never provided more information about that death during the trial, other than that he had been shot. THE DEFENCE EVIDENCE [ 24 ] Mr. Bendu testified. The following is a brief

summary of the evidence primarily from his direct examination. His evidence is discussed in additional detail in the analysis

section of this judgement. Mr. Bendu testified that he met C.P. in August 2019 through his old friend Khosh Azizi and became a really good friend to C.P., stating, “Our bond was strong.” It became apparent that C.P. was homeless, so he offered him one of the bedrooms in his townhouse to sublet for $750 per month. [ 25 ] He kicked C.P. out at some point because C.P. did not pay the rent. Moreover, he wanted to rent out the entire townhouse through Airbnb to produce some income in October, since he did not have a job and he planned a trip to Toronto in November. [ 26 ] In his direct examination, Mr.

Bendu testified that he heard that C.P. was in the hospital from Khosh who passed on the information to him: So once he received information that [C…] was in the hospital, he gave me a call and was like, Hey, buddy’s in the hospital. I’m not sure what happened. He's not telling everyone what’s happening. So, I just thought I'd give you a call too, just in case you want to reach out to

him and show him some love. [27] He testified that he did not know anything about a kidnapping. [28] In cross-examination it emerged that on October 22, 2019, he was contacted by Khosh about the kidnapping events of the nightbefore. He went over to Khosh’s family home where Khosh lived with this parents, and Khosh told him about C.P. arriving at theirhouse at 4:00 a.m. on October 21, 2019 and that ambulance and police were then called. Khosh had told him that C.P. was lying aboutwhat happened to him, and that as a result, he had broken off ties with C.P. [29] Mr.

Bendu testified in his direct examination that he and his girlfriend went to the hospital, he asked for C.P.’s room at theInformation desk and then he went to C.P.’s room, stopping to say hello to his mother. He testified that he and C.P. had a pleasant visit,joking and laughing around and then they went outside for C.P. to have a cigarette. [30] He denied that he had threatened C.P. in any way.

REASONABLE DOUBT AND ANALYZING WITNESS TESTIMONY [31] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [32] Many evidentiary and procedural rules support the presumption of innocence. In determining whether a person is to beconvicted or acquitted of a criminal offence, the onus on the Crown is high. The Court must be satisfied of the accused’s guilt, on thewhole of the evidence, beyond a reasonable doubt (R. v.

C.L.Y., 2008 SCC 2 at paras. 6-8). “The paramount question in a criminal case iswhether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” (R. v. Vuradin, 2013SCC 38 at para. 21). [33] In cases where the defence calls evidence in the form of testimony, the analysis about the credibility and reliability of witness’testimony becomes more critical and potentially more difficult.

It is important not to simply decide whether the trier of fact prefers theevidence of the accused over that of the Crown witnesses, or vice versa. [34] In order not to lose sight of the proper approach to be taken in such a case, to avoid a human tendency simply to compare andchoose which evidence is preferable, the Supreme Court provided direction to trial judges, in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742. As Justice Cameron explained the “W.(D.)” analysis in R. v.

Menow, 2013 MBCA 72: In W.(D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidenceor the Crown’s evidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is leftwith a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focused on the principle of reasonable doubt,the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [35] The evidence of the accused cannot be assessed in isolation.

It must be assessed in light of all the evidence in the trial. (Menowat para. 23) [36] A judge must assess all the witnesses’ evidence in terms of its inherent reliability and the likelihood that the events happenedas they the events happened. [37] The exact wording is not required; the key point the Supreme Court was making in W. (D.) is that the trier of fact must alwaysensure that the only exercise is to determine if the Crown has proven the charge beyond a reasonable doubt. [38] Justice Mainella provided a practical guide for considering how to analyze witnesses’ credibility in R. v.

Storheim, (24 January2014) Winnipeg (Man.QB.): Some of the things to consider are: did the witness seem honest? Is there any reason why the witness would not be telling the truth? How did the witness appear when giving evidence? Was the witness forthright and responsive to questions, or was he or she evasive orhesitant? Was the testimony of the witness reasonable and consistent, or did the witness contradict himself or herself? Was the witness'stestimony consistent with the testimony of other witnesses?

Do any inconsistencies in the witness's evidence make the main the pointsof the testimony more or less believable and reliable? Did any inability or difficulty the witness had remembering seem genuine or did itseem made up as an excuse not to answer questions? Was there something that helped the witness remember the detail of the event thathe or she described? (At p. 32) ANALYSIS OF THE EVIDENCE Analysis of Charles Bendu’s Evidence

[ 39 ] Mr. Bendu’s evidence was not believable. He was argumentative, evasive, and often disdainful of the Crown Attorneys’ questions. He provided long, meandering answers replete with inconsistences. His answers became particularly protracted on issues that were material to the offences. If his purpose was to obfuscate, he was successful only insofar that it served to undermine his credibility. [ 40 ] The overarching inconsistency in Mr. Bendu’s evidence is that it was completely different between his direct evidence and the evidence extracted from him on cross-examination.

The evidence he gave on direct examination was tailored to make him look like a caring, compassionate person who would never utter a threat or intimidate C.P., and someone who did not know or barely knew the people who had kidnapped C.P. The story slowly unravelled on cross-examination, but not without all efforts to obfuscate, confuse, evade and argue. Eventually, Mr. Bendu testified to a great deal of inculpatory evidence. [ 41 ] Mr. Bendu argued and evaded even on non-material points, such as engaging in an argument with the Crown attorney about whether water was a snack.

I cannot trust anything that he testified about. It would be almost impossible to detail all the inconsistencies and problems with his evidence. I have selected a few examples, under the headings of the material issues in the trial. How Well he Knew C.P. and whether they were Friends [ 42 ] Mr. Bendu’s evidence about the nature of his relationship with C.P. and the tenancy was replete with inconsistencies. He first testified that he met C.P. in August, then in September, and that he felt sorry for him so gave him a place to stay.

He also testified that he offered C.P., whom he referred to as “homeless”, a tenancy for $750 a month and then kicked him out and then felt sorry for him when he learned that C.P. was in the hospital. [ 43 ] When the Crown suggested that he did not know C.P. that well, and only knew him by his nickname, which is what he told police, Mr. Bendu said he knew his real name, because C.P. had told him. His answers to that question are illustrative of many of his answers, which were long, confusing and evasive: Q. Okay.

And so when you told police on November 4th of 2019 when you were speaking to him that you didn't know his real name and that it was Khosh who knew his legal name, you're telling us now that wasn't correct? A. That's also correct. Like, at the time [C...] already told me his name was [C...], but Khosh also told me that [R...]'s name is [C...], but I already knew that from [C...] himself. THE COURT: Well, now I'm confused. A. She asked the question as to at the time at the police station when the police asked me do you know [R...] as [C...] I gave the -- I told the police officers that I don't know who [C...] is.

Like, Khosh told me that there is a [C...], but at the time I was scared because [C...] already told me who he was, so I'm not sure why I will be at the station. Because I went to see [C...]; I gave his name at the hospital. He's the one that gave me all the information. I already had a bond with the kid. So, yes, Khosh told me his name, but at the station I just told the officers that I don't know who [C...] is, I know [C...] through Khosh, and Khosh told me that there is a [R...] and his name is [C...]. But I already had that relationship with [C...] himself, so I'm not sure why I was here.

Because I went to see him, you told me your name. It was a whole confusion to myself, so at the time I lied to the police officers in not saying I know who [C...] is, but I know who [C...] is because [C...] and myself were friends. Q. MS. WOOD: Just one second. Okay, so just to make sure that I have that right, you lied to police about knowing [C...]'s name because you were scared? A. That is correct. Because I know who [C...] is, but I didn't even know why I got picked up. While I was getting -- like, at the station the police told me you were doing utter threat and obstruction of justice.

That was the first time I heard those two words. They had to explain to me what utter threat is and who I went to see. The whole time I -- I was laughing and still scared because, yes, I went to see a friend, but at no point was I, like, doing a utter of a threat or obstruction of a justice. Because I heard that he's in the hospital. I know your real name. I hate the hospital scene. You and I have been close every day, so of course I'm going to get a call that you're in the hospital. So I come see you. We laugh about it at the hospital. I go my separate ways.

A few weeks later I get picked up, so everything was a shock to me. So I didn't know what exactly the cops wanted from me, and I thought why not help them out because I'm trying to go home the exact same night. I was completely in shock at everything that was happening that day. His Reason for going to see C.P. in the Hospital [ 44 ] In his police statement, Mr. Bendu initially denied going to the hospital. On cross-examination he testified that he did so because he did not know where the interview was going.

It was not until the police informed him that they had seen surveillance video from the hospital that he admitted his presence there. [ 45 ] Between his police statement, his direct examination and his cross examination, Mr. Bendu gave three different reasons for going to visit C.P. in the hospital. i). It was a friendly visit out of care and concern; ii). To cut ties with C.P.; iii). To get to the truth of what really happened the night of October 21, 2019.

[ 46 ] In his direct testimony Mr. Bendu testified that he went to see C.P. as a friend to offer “some love”. On cross-examination Mr. Bendu gave three different reasons for going to see C.P. in the hospital. First, that he went to see him as a friend; Khosh told him that C.P. was not telling anyone what happened and he should go to the hospital to show C.P. some love. [ 47 ] Second, he testified that he went to break ties with C.P.

He referred to C.P. as a “rat” throughout in his statement to police; he told the police that Khosh had told him that he did not believe what C.P. had told the police about the kidnapping and that as a result he had broken ties with C.P.. [ 48 ] Thirdly, he testified that he went to the hospital to get the truth, “If you want to find out the source, you go look him in the eye and talk to him.” How C.P. Behaved in the Hospital [ 49 ] Mr. Bendu testified that the hospital visit was friendly and that he and C.P. were laughing and joking. He testified that C.P. was not scared.

But in his statement to police, where he referred to C.P. as a “rat” throughout, he said: No, bro, words on the street don't lie. You can look someone in his eyes in the hospital bed, he's scared, he's shaking. I'm not here to do nothing to you, bro. There's cameras that watched me walk in here, bro. I'm here to come talk to you, make sure you're good. You're family. (Emphasis added) [ 50 ] That is not a friendly interaction; it is sinister. [ 51 ] He testified that he called C.P. a rat during his police statement because he was angry that C.P. had told police that he had threatened him.

I called him a rat out of anger, out of confusion, and stuff like that.. . . I called him a rat out of anger and confusion. . . . Because I was hurt that a friend would do that to me essentially after going to see him in the hospital, him knowing my true intention, me offering you a house. I know you. You kind of know me. And here I am being called in to the police station, first time ever giving a statement, first time ever getting fingerprinted, all based off a kid that is a friend of mine. So, I was just mad.

After watching a lot of movies, the Netflix documentaries, I was just using that word, Rat, rat, rat, rat, with the police and that was something -- I was just angry at myself that I was there having this discussion with police officers. How Well He Knew C.P.’s Attackers and Kidnappers [ 52 ] Mr. Bendu attempted to distance himself from Flex, Rig and Chris in his evidence.

In direct examination, he testified to having little or no connections to any of them. [ 53 ] There was no information about Chris in his direct examination. [ 54 ] He testified that Flex was a promoter whom he had seen at a nightclub; he had a business called FlexLife Productions.

He testified that he hired Flex to organize his birthday party in September 2019. [ 55 ] He testified that he did not know Rig, or “Rigs” who was at his birthday party. [ 56 ] It became apparent during his cross-examination that he knew these people much better. [ 57 ] On cross-examination it came out that Chris lived nearby him and was parking his vehicle in Mr. Bendu’s garage around this time. He hung out often with Chris at his house. He was aware that Chris’ house got “raided” as he put it, “after everything went down” in October after the kidnapping. He knew that Chris was arrested and then released.

He testified that he knew that Chris was arrested for the kidnapping and aggravated assault of C.P. He was aware of the details of his release conditions, because, after “everything happened” he and Chris became closer. [ 58 ] Mr. Bendu picked him up from his mother’s house on November 4, 2019, which is the day that Mr. Bendu was arrested for uttering threats and obstruct justice. Chris was driving him to school that day in Mr. Bendu’s car. Mr. Bendu was using Chris’ phone to check social media. He received a message from Tabby that the police were at his house looking for him.

Rather than having Chris drop him off at his house, he called a ReRyde and had the ReRyde drop him off at his house when the police were there, because he did not want the police to see him with Chris. [ 59 ] When he was asked on cross-examination whether he knew that Chris had been arrested a second time on October 22, 2019, he answered as follows: Q. Is it possible that he told you that he had been arrested a second time? A. I don’t remember how everything went down.

It was a very messy month for everybody . (Emphasis added) [ 60 ] But he was aware that Chris had been released to his mother’s house and that he had a curfew. [ 61 ] Moreover, his reference “to everybody” does not distance him from C.P.’s kidnappers; it puts him in the same group as them. [ 62 ] As for Flex, it came out in cross-examination that Flex was one of Chris’ room-mates and that Mr. Bendu smoked weed with Flex a lot. Mr. Bendu planned his birthday party on September 28, 2019 with Flex in Flex’s bedroom. The pre-party at Mr. Bendu’s

house was not only in celebration of his birthday but also the birthday of Flex’s girlfriend, Grace, whose birthday was two days after Mr. Bendu’s. In one of the video clips that Mr. Bendu took of the pre-party at his house, Mr. Bendu wrote the caption that “my family” came over to celebrate his birthday.

As to whether part of this group of friends he referred to as his “family” included Flex, he testified: Not necessarily, but I can consider him family because he is hosting the party for me, he's out here looking out for me, so, yeah, this week he's my family because he's showing me love. [ 63 ] Eventually he testified to more than that: Q. Okay. I'm going to suggest to you that he's actually a pretty good friend to be putting on this birthday party for you; would you agree with that? A. Yeah, I would say so. [ 64 ] He sent the video to Flex and Chris.

Chris was apparently at his birthday party as well, as this exchange from his cross- examination demonstrates: Q. And one of the people that you forwarded those videos to was to Flex; correct? A. I would have sent it out to Flex, to Chris, like, as well because they were in the video and I knew who they are. Q. Chris was in that video? A. Yeah. Q. Okay. A. You didn't look carefully. [ 65 ] When it was suggested to Mr.

Bendu that this was the first time he had told the Court that Chris had also been at his birthday party, he answered that no one had asked him up until that point. [ 66 ] He testified on cross-examination that he “seen” Rig at his birthday party. A video from the “pre-game” was played and filed in evidence. The “pre-game” was a house party at Mr. Bendu’s townhouse, before everyone at his birthday party went to the nightclub. Rig was present. Despite that, Mr.

Bendu tried to lead the Court to believe he barely knew Rig. [ 67 ] It also emerged in cross-examination that the birthday party at his house was not the only time that he had contact with Rig. [ 68 ] Rig stayed at his house in late October, when he came to the door with one of the two young women to whom he had rented his townhouse through Airbnb in October. He testified that the young woman, Tabby, had “a gentleman” with her that he did not know and they were not introduced. She said her things were still in the townhouse and she would like to stay a few more days. Mr.

Bendu agreed. [ 69 ] A few days later, on November 4, 2019, Rig was found dead in Mr. Bendu’s townhouse. He told the police that he did not know who Rig was. When asked in cross-examination why he lied to the police about not knowing who he was, he testified, I didn't know him like that, correct. I told the police I didn't know who Rig Moulebou was because he wasn't a friend. [ 70 ] He told the police that the first time he saw the man was a few days before when he showed up at his door with Tabby. When the police asked him directly if that was the first time he had been to Mr.

Bendu’s place, he said it was. [ 71 ] He did not tell police that the deceased had been at his birthday party, nor at the nightclub. He testified in cross-examination that it was because it did not occur to him to tell the police. [ 72 ] In fact on cross-examination he testified that C.P. had incorrectly identified Rig in the video from the birthday party because he was not paying attention. He correctly identified Rig in the video. [ 73 ] He finally admitted on cross-examination that Flex, Rig and Chris all knew each other and knew C.P.

They had all been with him at this birthday party pre-game and the nightclub. [ 74 ] Mr. Bendu’s exculpatory evidence is not believable; the inculpatory evidence extracted during cross-examination is believable. I do not believe that Mr. Bendu went to the hospital to be a friend and I do not believe his denial that threatened C.P. and obstructed justice. Nor does Mr. Bendu’s evidence raise a reasonable doubt. [ 75 ] I must still be convinced beyond a reasonable doubt by the evidence I do believe. Analysis C.P.’s Evidence

[ 76 ] C.P.’s evidence about the offences was clear, concise, and consistent throughout direct examination and cross-examination. [ 77 ] C.P. was a colourful witness with a colourful past. The defence argued that he was a Vetrovec witness because he had a youth record, had been a previous gang member and admitted to being a seller of marijuana. C.P. had a youth record for dealing cocaine and a breach that he thought had been expunged. He has no adult criminal record. He did not delay in contacting the police about the offences.

He testified that he was terrified, he told his mother they had to contact the police; she contacted the detective who had left his card on October 21, 2019 and then he apparently was too frightened to wait and he also called the police. I note that he did not remember calling the police, which lends further credibility to the state he was in at the time, which was one of terror. [ 78 ] I am not satisfied that C.P. is a true Vetrovec witness, but I am cognizant that I should treat his evidence with some care. [ 79 ] In this case, there were no inconsistencies about the gravamen of the offences.

And his evidence is completely corroborated by the police witnesses. Any doubts I might have about the veracity of his complaint are negatived by the corroboration of the police officers who saw his terrified state after Mr. Bendu threatened him and his family. [ 80 ] There were inconsistencies in his evidence on other points. None of those matters were material to the charges. Moreover, the inconsistencies appeared to be more a consequence of memory lapses, rather than as a result of deliberate lies.

For example, he told police that the wallet stolen by the kidnappers was a Louis Vuitton wallet, whereas he testified that it was just a regular wallet and he could not remember the brand. Overall, I am satisfied that the testimony of C.P. about the offences is safe to believe and believable. [ 81 ] This evidence was corroborated by other witnesses and evidence. [ 82 ] The officers were challenged on cross-examination about the lack of detail in their police notes about C.P.’s demeanor.

They all testified that the call was unique; it stood out because they do not usually take statements in hospital wards from victims who were so frightened. I believe the police officers’ evidence about C.P.’s demeanor after Mr. Bendu’s visit in the hospital. [ 83 ] Overall, C.P.’s allegation is believable. Any inconsistencies are not on material points. His evidence about the threats was unshaken on cross-examination. [ 84 ] This was a very brief incident and his testimony was straightforward, largely consistent and credible. It is corroborated by the police.

Three officers testified that they found him to be terrified, shaking, and crying, like he feared for his life and his family’s lives. The detectives’ evidence was professional and straightforward. FINDINGS OF FACT [ 85 ] I accept C.P.’s version of the events that occurred at the hospital on October 24, 2019. Mr. Bendu’s evidence is not believable and has not raised a reasonable doubt about C.P.’s story. Based on the agreed statement of facts and video and photo evidence, and my analysis about the credibility and reliability of the evidence of C.P., the police and Mr.

Bendu, I have made the following findings of fact in this case. [ 86 ] Mr. Bendu and C.P. were only casual friends who smoked weed together. They were not close friends such that Mr. Bendu would go to visit him in the hospital. The fact that C.P. knew right away that Mr. Bendu’s visit was not a friendly call is indicative of that. [ 87 ] C.P. was not Mr. Bendu’s tenant. He was unemployed and only selling weed to support himself. There was no information about how much money he earned doing that, including how he could pay for rent. [ 88 ] Related to that, I find that C.P. had no animus towards Mr.

Bendu for being kicked out of his apartment for non-payment of rent. I find that C.P. had no animus towards Mr. Bendu for any reason. [ 89 ] Mr. Bendu was friends with Chris, Flex and Rig, who had been involved in the robbery, kidnapping and aggravated assault of C.P. [ 90 ] Mr. Bendu knew about the kidnapping.

Not only did he testify eventually that he learned it from Khosh and around the neighbourhood, but also when he was left alone in the police interview room he talked about it. [ 91 ] He was told by Khosh that C.P. was lying about it, implicating their friends, and that he had broken off ties with C.P. [ 92 ] Khosh told or suggested to Mr. Bendu that he should go to the hospital and see C.P. [ 93 ] I infer that it was through Khosh’s mother talking with C.P.’s mother in the hospital that Khosh and then Mr. Bendu learned where C.P. was in the hospital.

Khosh told him that C.P. was on ward G3 at the hospital. [ 94 ] It took a few nights thinking about it before he went to see C.P. in the hospital. His own evidence was that he slept on it a few nights and smoked weed on it. This was not a lightly made decision, like going to see an injured buddy in the hospital. [ 95 ] Mr.

Bendu was delivering a message. [ 96 ] He referred to C.P. as a rat every time he referred to him in his police statement which demonstrates his animus towards C.P. [ 97 ] He told the police how C.P. reacted to him with fear and shaking in the hospital, because essentially he was looking him in the eyes and confronting a rat. [ 98 ] I do not accept that Mr. Bendu went to the hospital as a friend or out of care and concern for C.P. His evidence about why he went to the hospital was a moving target, as I have already outlined, but eventually it became clear he was going to the hospital as a

messenger. On cross-examination, there are many “tells”, such as, I took a few nights, slept it over, thought about it. Because it's my first time being in all this drama like this, like, some I'm, like, you know what, I'll go see him . . . [ 99 ] That response is not consistent with going to see an injured friend in the hospital. It is consistent with going to the hospital to deliver a message from C.P.’s assailants and their comrades. [ 100 ] He showed no concern for C.P.’s injuries according to C.P.’s evidence. Mr.

Bendu did not testify about a single detail involving C.P.’s physical condition, and was mistaken about where on his body C.P. was injured and did not know he had surgery. [ 101 ] Mr. Bendu knew where C.P.’s family members lived, and C.P. had no way to protect them. [ 102 ] C.P.’s description of what Mr. Bendu said to him, and the tone of voice, that is, angry and stern, without doing anything to draw any attention to himself, is consistent with delivering a threat. It was also consistent with the calm, controlled demeanor I observed during Mr.

Bendu’s testimony. [ 103 ] The police officers all testified about how terrified C.P. was when they talked to him and saw him at the hospital after Mr. Bendu left. His demeanor was consistent with threats on the life of him and his family. [ 104 ] C.P. had no motive to concoct this story. Although the defence suggested in cross-examination that C.P. was upset that Mr. Bendu had asked him to leave his townhouse or that Mr. Bendu was friends with the people who kidnapped and assaulted him, C.P. denied this. Moreover, it would hardly be motive for such an allegation. [ 105 ] Mr.

Bendu went to the hospital to intimidate C.P., to threaten him and pressure him to recant his statement to the police so that the kidnapping and other charges against his friends Flex, Rig and Chris, would be dropped. DECISION [ 106 ] Based on my acceptance of C.P.’s version of what occurred at the hospital and the findings of fact that I have made, I am satisfied beyond a reasonable doubt that all the elements of the offences of uttering threats and obstruct justice have been proven. [ 107 ] Mr. Bendu committed the offence of uttering a threat pursuant to

section 264.1(1)(

b) when he threatened that “they” would kill C.P., or, if they didn’t come for him, they would come for his daughter, his brother, or other members of his family. [ 108 ] I am also satisfied beyond a reasonable doubt that Mr. Bendu committed the offence of obstructing justice pursuant to s. 139(2) when he made these threats, to interfere with the investigation and prosecution of charges of kidnapping, aggravated assault and robbery against Maracle Tamana, “Rig” Moulebou and Ciceron Biaya. [ 109 ] Charles Bendu is convicted of uttering threats and obstruction of justice. “Original signed by:” C.A. DEVINE, P.J.