Her Majesty the Queen ) Mitchell Lavitt, ) ) for the Crown - v. –, 2018 MBPC 17

Citation: 2018 MBPC 17 THE PROVINCIAL COURT OF MANITOBA Winnipeg BETWEEN: Her Majesty the Queen ) Mitchell Lavitt, ) ) for the Crown - and – ) Michael Ndlovu and ) ) ) Kathy Bueti, for the Accused NdlovuDallas Perreault, Accused ) ) ) Josh Rogala, for the Accused Perreault ) Decision delivered: April 18, 2018 MARY KATE HARVIE P.J.

Introduction [1] The accused Michael Ndlovu (“Ndlovu”) and Dallas Perreault (“Perreault”) are jointly charged with four arson relatedoffences under Criminal Code Sections 433 and 434, arising from a fire which occurred during the early morning hours of July 16, 2016.At the trial of this matter, the central evidence for the prosecution came from two witnesses; Justin Kirstein, the occupant of the housewhere the fire occurred, and Sergeant William de Groot, a Winnipeg Police Service member and gang expert, who addressed issues ofgang history, membership and hierarchy.

Both accused testified on their own behalf, denying the offences, and both called alibi evidence.Their evidence must be assessed through the application of the test in R. v. W. (D.) (SCC). The Court must also considerthe credibility and reliability of the complainant and the strength of the eyewitness identification as part of an evaluation of theprosecution’s case to determine whether the allegations have been proven beyond a reasonable doubt. Depending on this assessment, theCourt must determine whether the accused Ndlovu, if present, was a party to the offence.

As with all cases, the credibility and reliabilityof each witness must be assessed, as it is open to the Court to accept all, some or none of the evidence of each of the witnesses. [2] Counsel made a number of agreements prior to the commencement of the trial, including the jurisdiction of the Court; thedate, time and location of the arson; the admissibility of a photo booklet of the scene; and the injuries of another resident of the house,Ms. Shania Thompson. The case was heard over 12 days between January and April, 2018. Counsel for Ndlovu took issue with theexpertise of Sergeant de Groot.

At the conclusion of a voir dire, he was qualified as an expert and his testimony and report wereadmitted into evidence. The Circumstances Surrounding The Arson [3] The circumstances surrounding this arson are unsettling. The extensive evidence detailing the drug trade in Winnipeg, theongoing rivalry between various street gangs, and the acts of violence used by warring gangs to control the lucrative drug traffickingwithin “their territories” all paints a disturbing picture and helps to put this incident in context.

An arson of this magnitude, the massiveamount of property damage, the potential for greater harm and actual physical injuries which resulted is certainly consistent with theprevious acts of violence employed by these street gangs. [4] In early July of 2016, the complainant Justin Kirstein took up residence at a house at 566 Young Street, in Winnipeg,Manitoba, in an area that Winnipeg street gang “the Mad Cows” had claimed as their “territory”. Kirstein candidly acknowledges that hewas a drug dealer, and was using the house as his base for his drug operation, for which he employed approximately seven youngermales.

A former member of Winnipeg street gang “B-Side” from some years back, and working independently, Kirstein says that hewas having ongoing difficulties with individuals he believed to be members of the Mad Cows. [5] In the weeks and months prior to this incident, Kirstein lived in several different houses, all within Mad Cow “territory”. He

describes being the target of a number of violent incidents, including an earlier arson attempt and an attempted home invasion. While he did not actually observe the assailants, he paid local drug dealers and prostitutes for information about the identity of the perpetrators and attributes those acts to members of the Mad Cows.

He also claims to have had phone calls and exchanged text messages with various Mad Cow members, including the accused Ndlovu, during which he alternately taunted his rivals and attempted to resolve the ongoing hostilities, and at one point offered advice on the running of a successful drug operation. None of these purported texts were filed in evidence. As of July 16, 2016 their differences remained unresolved. [ 6 ] In the early morning hours of July 16, 2016 Kirstein was sleeping on an air mattress in the front room of 566 Young Street.

He awoke at approximately 3:30 a.m. when his girlfriend, Shania Thompson (“Thompson”), came to bed. While trying to get back to sleep, he answered a text message related to the possible movement of a quantity of substandard cocaine. After completing the text, and while trying to get back to sleep, he observed three individuals in the front of the residence.

Being groggy and half asleep, he did not immediately react to their presence, although he testified that he believed them to be members of the Mad Cows. [ 7 ] After the passage of somewhere between five and 30 minutes, a rock was thrown through the front window of the house, followed by a flaming bottle. The bottle smashed beside the bed and the contents splashed on to Kirstein’s leg and arm, igniting his clothing, and that of Thompson. Kirstein and Thompson went into the next room where he woke two young drug dealing employees.

While simultaneously leaving the residence and trying to extinguish his burning clothing, Kirstein called 911, advising of the fire but refusing to give his name. As they were exiting, Kirstein heard another loud bang when a second flaming bottle was thrown at the back of the house. Once in front of the residence, Kirstein lay down on the sidewalk, in extreme pain from the burns. Members of the Winnipeg Fire and Paramedic Service and Winnipeg Police Service arrived and began attending to Kirstein and Thompson. [ 8 ] Kirstein and Thompson were taken by ambulance to the Health Sciences Centre.

Thompson did not testify, as counsel conceded that she suffered significant burns as a result of this incident. Kirstein was hospitalized for 19 days, during which he received skin grafting to approximately 40% of his body. He suffered burns to both legs and a significant portion to his right hand and arm. He continues to suffer pain from the effects of the burns and requires ongoing treatment. He still wears a burn compression bandage on his arm.

Photographic evidence confirms the extensive damage to both the interior and exterior of the residence. [ 9 ] As a result of a search incidental to this incident, Kirstein was charged with a number of drug and weapons offences related to items located within 566 Young Street. He was interviewed by the Winnipeg Police Service both as an accused and as a complainant. Initially at the scene, Kirstein was spoken to by police, telling them he suspected the Mad Cows were responsible for the fire, specifically identifying Ndlovu (by the name Michael Amyotte) and two others (not the accused Perreault).

Later, after his release from hospital, he identified both accused from a police photo line up, as well as a third individual not presently before the Court, although he identified Perreault by reference to his social media name “John Bustraid”. A preliminary inquiry has been completed on the charges against Kirstein, and they remain before the Court. There is no suggestion that Kirstein was offered any inducement or consideration in respect of his charges in exchange for his testimony against Ndlovu and Perreault. [ 10 ] There are no statements from the accused to police before the Court.

There is no forensic evidence linking these accused to the scene of the fire. The Theory of the Prosecution [ 11 ] The theory of the prosecution is not complex. It is rooted in the application of common sense to the facts, and is based on a combination of the evidence of Kirstein and that of gang expert Sergeant de Groot. Crown counsel argues that Kirstein was targeted by members of the Mad Cows because he was trafficking drugs in their territory, thus cutting into their profits.

Seemingly unintimidated by previous threats and attacks, including a previous attempted fire bombing, Kirstein’s attitude and activities were becoming increasingly provocative and problematic and represented a problem that had to be addressed.

Crown counsel submits that the evidence establishes Perreault’s actual involvement, and that, as a leader in the gang with the authority to give orders, Ndlovu was present to ensure that the job was “done right”, therefore making him a party to the offence. [ 12 ] In order to prove the affiliation of each accused with the Mad Cows, Crown counsel relies on the opinion evidence of Sergeant de Groot, who testified and prepared a report which was filed as an exhibit.

In his report, he was asked to answer a number of questions related to the Mad Cows and B-Side gangs generally, and about the specific involvement of these two accused. Sergeant de Groot explained that members of the Mad Cows, whose name stands for “Money And Drugs, Cash Over Women” self-identify by “flashing” gang signs using their fingers to mimic the letters “MC” or to mimic bull horns, as their sports team of choice is the Chicago Bulls. They are often seen wearing either Chicago Bulls clothing or clothing that is predominately black and red.

Gang related graffiti includes the letters MC or the numbers 1303, referencing the numerical position of the letters M and C in the alphabet. [ 13 ] Sergeant de Groot testified that as of July 2016, both accused were members of the Mad Cows. His report states that the accused Ndlovu, whose half brothers founded the gang, is “a leader of the Mad Cows street gang and controls members within the gang . . .

Ndlovu is referred to as “Arty” and provides direction to other members and controls the lucrative crack cocaine market in the west end of Winnipeg.” It is the Sergeant’s opinion that while the “higher up” members of a gang generally do not become involved in the actual commission of offences, and in fact usually distance themselves from actual criminal activity, a more senior gang member might attend if there was a need to ensure that a problem was dealt with properly.

The Sergeant also testified that the accused Perreault was a Mad Cows member on the date of the offence. [ 14 ] Both accused testified, denied participating in the offence, and have called alibi evidence. Ndlovu denies being a member of the Mad Cows at the time of the offence. Perreault admits to gang affiliation but testified that at the time of the offences he had been distancing himself from his gang associates for a number of months. Their denials must be assessed through an application of the test in R. v.

W. (D.) and weighed in light of the evidence as a whole, to determine whether it can be believed, or alternatively, whether it raises a reasonable doubt. As I will explain, their evidence fails these first two tests. Therefore, the case for the prosecution must be assessed to determine if all elements of the offences have been established beyond a reasonable doubt. The Evidence of Justin Kirstein - a General Assessment

[ 15 ] Prior to the commencement of his evidence, Crown counsel described Kirstein as a “Vetrovec” witness whose evidence requires the cautious consideration by the Court. Given the totality of Kirstein’s testimony, it is clear that Crown counsel’s opening comments were justified. [ 16 ] Justin Kirstein is a drug dealer who is committed to a criminal lifestyle and has, by his own admission, a blatant disrespect for Court orders. His extensive criminal record might make this observation seem obvious.

But beyond that, Kirstein presented as a cagey witness who possesses a low cunning that enabled him to tailor some of his evidence as he went along. [ 17 ] Throughout his testimony, Kirstein’s distain and distrust of authority was very evident. He seemed constantly focused on assessing any situation to determine the best possible personal outcome, whether it be avoiding criminal liability or gaining personal profit. One stark example is his description of the events immediately after the fire started, when he and others were exiting the house.

Despite the fact that he was literally on fire, he refused to provide his name when calling 911 for help and continued to hide his own identity from first responders and police.

He repeatedly complained in court that the first responders who were treating his burns at the scene “cut off his brand new clothing for no good reason.” Although terribly burned and writhing in pain, he had the presence of mind to ask police to retrieve from the burning house a suitcase, later found to contain cash, being $17,000 of crime proceeds. [ 18 ] Not only does Kirstein lack any appreciation as to the negative impact that the sale of illicit drugs has on the community, he actually described himself in fairly glowing terms, telling police that “what I’ve done to help people far outweighs what I have done to hurt people.” At the time of the fire, he had a quantity of substandard cocaine and was concerned about the impact its sale might have on his reputation.

His unapologetic solution was to offer it to a cohort in order to expand his network into some of the northern Manitoba First Nations communities. He justifies his willingness to bring younger males into his trafficking network by saying he was like an “older brother” to these individuals.

He seems to idolize his drug dealer status, placing a photo of himself with a “money phone” on his Facebook page. [ 19 ] When confronted with his criminal record, which is extensive, he was quick to deflect responsibility and blame others, including various legal counsel who he says “badgered” and “browbeat” him to make plea bargains and to accept deals.

What is specifically concerning is his admission that he repeatedly lied to the Court during the plea comprehension inquiries, now asserting that he entered guilty pleas to offences he did not commit. [ 20 ] While not an educated person, he presents as an individual who is clever enough to attempt to manipulate the system. For example, when initially speaking to police about this incident, he began the discussions by trying to negotiate his own release on a promise to appear, despite being aware that he was facing literally dozens of charges.

Items found in or around the residence include an SKS assault rifle, a double barrelled sawed off shot gun, a machete, bear spray, and 158 grams of cocaine, although I note that Kirstein continues to assert that he was unaware of the presence of some of these items. [ 21 ] Recognizing that Kirstein has been entrenched in a criminal lifestyle for many years, it is not surprising that he has some enemies.

Although no longer a member of the B-Side gang, having “ratted out” another member, he testified that he reached out to them for support while he was having troubles with the Mad Cows, and was irritated by the fact that their support was not forthcoming. While he asserts that other disputes are dated, he admits to having had issues in the past with the B-Side gang, the Afrikan Mafia, as well as other gangs. [ 22 ] As it relates to his interactions with the Mad Cows, he presents as an individual who was more than willing to do what it takes to continue his drug operation in so called Mad Cow territory.

Describing himself being a “competitor” rather than a “rival” of other drug dealers, he initially denied possessing guns because of his involvement with the drug trade, and yet went on to describe a shotgun as a “deterrent”. He freely admits to physically confronting and chasing members of the Mad Cows with bear spray and with flashing a gun at others. [ 23 ] It is conceded, and there is no doubt, that Kirstein’s house was the subject of a firebombing. Crown counsel argues that members of the Mad Cows had a motive to attack Kirstein, and Kirstein certainly believed that to be the case.

However, the evidence also establishes a motive on his part to attribute the arson to the Mad Cows, and specifically to the accused Ndlovu. [ 24 ] Kirstein testified about a number of interactions with Ndlovu prior to the fire, including what he says were cell phone conversations and Facebook exchanges. Kirstein’s version of these purported conversations demonstrate significant animus towards the Mad Cows and to Ndlovu specifically.

At one point, Kirstein claims to have bragged to Ndlovu about the extent of his information about Mad Cow members, including their personal phone numbers, the clothing choices and the restaurants they frequented, adding “I haven’t been attacking you guys like I could have.” I note that there has been no corroboration provided to support Kirstein’s assertions as to the text and phone conversations. An Agreed Statement of Facts filed as Exhibit 7, states “No Facebook profile was found for the name Michael Amyotte” being the name used by Kirstein to reference the accused Ndlovu.

In his evidence, Ndlovu admitted to having different Facebook profiles, all under assumed names. [ 25 ] Even though there are credibility concerns with respect to Kirstein’s evidence that does not mean that it should be automatically rejected. It is conceded that he was the victim of an arson. His evidence as to the identity of the assailants must be assessed to determine if it established guilt beyond a reasonable doubt. [ 26 ] Kirstein was examined extensively about the moments prior to the fire bombing. As has already been noted, Kirstein woke up at approximately 3:30 a.m. when his girlfriend came to bed.

Although he didn’t remember until reminded some months later, he now recalls using his cellphone to send a text about the sale of a quantity of substandard cocaine. While trying to get back to sleep, he saw three people in the area immediately in front of his house. Kirstein asserts because of ongoing difficulties he slept wearing his glasses on. He described his state at that point in various ways – he thought he was dreaming, that his eyes weren’t focused, that he was seeing but not looking. It seems that he was “half asleep and somewhat groggy” when he initially saw the trio in his front yard.

Kirstein initially thought only a few moments had gone by but now accepts that it may have been as long as half an hour. [ 27 ] Kirstein spoke to police at the scene, intermittently at the hospital, and later upon his release. He participated in a photo line up, identifying these accused as the assailants.

[ 28 ] His observations while in this state are in issue. He initially told police “that a rock hit the bed and completely woke me up and then I looked”. He later clarified to police, and repeated in Court that he saw “John Bustraid’s” (Perreault) arm move before the rock was thrown. It was the second male (not before this Court) who threw the flaming bottle. The person he identified as “Mike Amyotte” (Ndlovu) was further back and was not seen to say or do anything. [ 29 ] The frailties of eyewitness identification are well known.

The circumstances affecting the witness’ ability to observe the perpetrators must be carefully considered, including factors such as the length of time the witness had to observe the offender, the lighting, any obstructions, and the degree of detail noted are all factors to be considered when assessing the weight to be attached. Many of those factors are present here. Kirstein acknowledges that his observations were made when he was “half asleep” and groggy, that they were made over a brief period of time under poor lighting conditions.

Crown counsel argues that this is a case of an eyewitness identifying someone recognized from previous interactions. Defence counsel take issue with this characterization. [ 30 ] Having provided the necessary context, I will now consider and assess the evidence of each accused. The Evidence of Dallas Perreault [ 31 ] The accused Dallas Perreault testified on his own behalf and denies being involved in the fire bombing of Kirstein’s residence. In his direct examination, which was relatively brief, Perreault focused on the time period immediately around the incident.

He admits to having been affiliated with Mad Cows, but says that during the months prior to the incident he became involved in a relationship with Ms. Twila Ameech, his alibi witness, and began drifting away from the gang. He says he has now left the gang. [ 32 ] Perreault testified that the period of time around this incident stands out because July 13, 2016, three days before the fire, was Ameech’s birthday. He testified that they argued and did not spend her birthday together as planned.

He says he went to her residence at approximately 8:00 a.m. on July 14, 2016, when they spoke and made up and he remained at Ameech’s family home for the next few days, indicating that they alternatively slept, went to the local 7-Eleven, watched movies and played video games. He say that he was at Ameech’s house and was sleeping with her at the time of the fire. He denies being involved in the fire and says that other than one brief interaction with Kirstein, he does not know him. [ 33 ] The cross-examination of Perreault was extensive, particularly as it relates to his gang involvement.

Perreault admits being a member of the “MOB” street gang prior to becoming involved with the Mad Cows. He admits to selling drugs for the Mad Cows in 2013 for a period of about six months. When shown Facebook and other photographic evidence, much of which dates back to 2012- 2013, he confirmed his own identity in some, but not all of the photos.

He acknowledges using the name “John Bustraid” on Facebook at the time of the incident. [ 34 ] There is a gap in the photographic and other evidence, coinciding with the period between December 2013 and October 2015 when Perreault was in custody for firearms related offences. There is no evidence that while he was in custody he was actively involved in the gang. [ 35 ] After his release in October, 2015, Perreault was on probation and says he was encouraged by his “street mentor” to become involved in sports. He joined the downtown YMCA in late 2015, where he says he met Ndlovu while playing basketball.

Although he admits to playing “pick up” basketball with Ndlovu approximately once a week through to spring of 2016, he denied knowing that Ndlovu was a member or leader of the Mad Cows. He acknowledges being photographed with Ndlovu, likely in December of 2015, after having dinner at a downtown restaurant with Ndlovu and others who were celebrating the birthday of another Mad Cow member. [ 36 ] Michael Ndlovu has a tattoo on his forearm which is, in part, gang related.

Perreault was shown a picture of the tattoo, admits to having seen Ndlovu in shirtsleeves while playing basketball, but testified that he did not “stare at” Ndlovu’s arm and therefore was not aware from the tattoo that Ndlovu was a Mad Cow member. [ 37 ] Perreault testified that his involvement with the gang decreased significantly when he began his relationship with Ms. Ameech. He indicates that he was tired of the lifestyle, which included drug and alcohol use, although when pressed in cross examination, he was vague as to the details of the “lifestyle” that he wanted to leave behind.

Despite his admitted affiliation, and his admission that he regularly used drugs during this time, he denies being actively involved in the sale of drugs and other gang activities. [ 38 ] I am satisfied that, as of July of 2016, Perreault was still affiliated with the Mad Cows, and may have been spending less time with his gang friends. However, this conclusion does not preclude his having been involved in this arson, particularly considering his ongoing relationship with Ndlovu. What is more signficiant is an assessment of his alibi evidence. This requires a further evaluation of his evidence and that of Ms.

Ameech. The Evidence of Twila Ameech [ 39 ] Twila Ameech (“Ameech”) provided an alibi for Perreault for the night in question. At the time, Ameech and Perreault had been dating for a number of months. Like the accused, she says she has a specific recollection of the days in and around July 16, a time period anchored by the events around her July 13 birthday. She confirms that they had argued, did not see each other on her birthday, but that Perreualt came to her house on the morning of July 14 when they reconciled.

They then spent the next few days together watching movies, going to the park and to 7-Eleven, and generally “hanging out” with her family. Specifically, during the early morning hours of July 16, Ameech testified that Perreault was sleeping with her, that she is a “light sleeper” and that she would have been aware if the accused had left. [ 40 ] Ameech testified that she neither knows, nor has spent time with Ndlovu. She says she and Perreault did not associate with any of his other friends.

She knew that Perreault had previously spent time in custody and was on probation, but says she did not ask about his criminal record. She gave a statement to police approximately seven months after the incident, explaining the delay by saying that she was uncertain as to who to speak to, did not know what an “alibi witness” was, and was truthful when she spoke to police. [ 41 ] Ameech presents as a sincere, if somewhat immature witness, who is clearly smitten with Perreault, evidenced by her

repeatedly mouthing "I love you” to the accused throughout her testimony. She confirms that her family has left the province but that she remained and was actually living with Perreault’s mother for approximately six months. Crown counsel challenged her version of the events, suggesting that she and the accused had fabricated her alibi evidence, pointing to her admission to having spoken to the accused regularly since his arrest, her delay in speaking to the police, and to some unusual consistencies between her evidence and that of Perreault.

She was adamant, and I accept, that Perreault did not force her to provide alibi evidence. I am satisfied that Ameech provided credible evidence with respect to the time period immediately following her birthday on July 13. I am satisfied that Perreault attended to her residence and that he spent time there with her and her family. [ 42 ] The challenge regarding Ameech’s evidence is with respect to its reliability. I am not surprised that Ameech was not familiar with “alibi evidence” at the time of Perreault’s arrest or how to go about providing a statement to confirm her story at an early opportunity.

This explains some of the delay in her speaking to the police. Not surprisingly, given the passage of time, she struggled with some of the details as to their actions during this period of time. More importantly, there are discrepancies between her account of the days following July 14 th and that of Perreault’s that call into question the accuracy of her memory respecting this time period. [ 43 ] Most significantly, there is a lack of clarity as to how long Perreault remained at her family home.

Throughout her testimony, Ameech repeatedly estimates the length of time of Perreault’s stay, suggesting it was “four to five days, up to a week.” In order to accept her evidence as providing an alibi for Perreault, I have to be satisfied that Ameech can recall that he was with her at the time of the incident. Taking into account the lack of precision in her recollection, the passage of time, and the discrepancies both within her direct and cross-examination and her statement to the police, I am not satisfied that Ameech provided evidence which is sufficiently reliable to act as an alibi for Perreault.

While I am satisfied he likely spent time with her and her family immediately after July 14, I am not sure about the amount of time he was at the Ameech residence. As such, I cannot be satisfied that she can say with any certainty that Perreault was with her the early morning hours of July 16 th . [ 44 ] Similar concerns are present when assessing the reliability of Perreault’s evidence. As indicated, I am satisfied that he spent time at the Ameech residence immediately following her birthday. The length of that stay is less than clear.

The Evidence of Michael Ndlovu [ 45 ] Michael Ndlovu denied that at the time of the incident he was a Mad Cow member, and denied involvement in the fire. Because Crown counsel asserts that he was present at the scene of the arson and was, due to his gang status, a party to the offence, his affiliation and ranking in the gang are important. [ 46 ] Ndlovu acknowledges that his two half-brothers were involved in the founding of the Mad Cows street gang. He became involved in gang activities around 2004 when he was approximately 13 years old.

When testifying at a trial in 2007, he agreed that he was a “mid level enforcer”, although in his direct examination he now downplays his influence in the gang in those early years, describing himself as a “bottom feeder” who ran a “crack line”, but otherwise had no real influence in the gang. [ 47 ] Ndlovu has an extensive criminal history, particularly from April, 2005 to January of 2012.

During that period, he was convicted of numerous drug related offences, some of which he acknowledges were related to his involvement in the Mad Cows street gang. [ 48 ] Ndlovu asserts that two events caused him to break ties with the Mad Cows. The first was related to an assault conviction, where he was suspected to have cooperated with the police. The second was his 2007 testimony at the trial involving a gang related shooting of an innocent bystander.

After those events, he was told by his brothers that he was “NG” or “no good” and that he was not to hang around with other gang members, flash gang signs or be involved in gang activity. [ 49 ] In 2007, shortly after he was purportedly declared “NG”, Ndlovu moved to Calgary with his mother for a number of months.

When they returned to Winnipeg, he began selling drugs “independently.” He was charged with trafficking, served a jail sentence and was released. [ 50 ] Ndlovu returned again to Calgary, where he worked for a period of time as a roofer before returning to sell drugs provided by his cousins, Mad Cow members Alan and Adam Bird, who had also moved to Calgary. According to Sergeant de Groot’s report, during this period of time, the Mad Cows were attempting to expand their drug network to Calgary. Ndlovu asserts that his affiliation with the Birds was based on family rather than gang ties.

Ndovu was eventually charged and received a custodial sentence for trafficking marihuana in Calgary in June of 2010. [ 51 ] Ndlovu testified that after serving his Calgary sentence, he relocated to Red Deer, Alberta, at the invitation of an old friend, Lloyd Sarsan. Ndlovu claims that he was angry with his cousins for failing to support him while in custody. Interestingly, Ndlovu claims that he went to assist Sarsan, who planned to “rip off” a supplier. Sarsan was eventually shot, and Ndlovu’s Calgary cousin Alan Bird was charged.

For his part, in January, 2012, Ndlovu was convicted again, in Red Deer, on drug related offences. Although Ndlovu claims otherwise, Sergeant de Groot’s evidence that Ndlovu attended Red Deer for the purpose of expanding the Mad Cows drug sales into Alberta is consistent with his drug conviction, and the evidence as a whole. [ 52 ] Ndlovu describes the period of time from 2012 to 2016 as being one where he was on very poor terms with his own brothers, and was no longer affiliated with the Mad Cows street gang.

He explains that his ongoing relationship with other gang members flowed from his childhood friendships with these individuals. He describes the events of 2012 to be a “big wake up call” as by that time he had lost a number of friends to violence related to the drug trade.

Once returning to Winnipeg, he describes working on a farm in the Rolling River area on a seasonal basis, and working sporadically as a tow truck driver, while living with his father in Winnipeg the rest of the time. [ 53 ] Crown counsel points to a series of interactions between Ndlovu and other Mad Cow members which he argues establishes Ndlovu’s ongoing and unbroken relationship with the gang. After reviewing the activities, associations, and criminal convictions, I am more than satisfied that Ndlovu’s status as a member of the gang never terminated, and that as of July, 2016 he was an active member of

the Mad Cows street gang. [ 54 ] Despite his assertions that he remained “NG”, that he was not to associate with other gang members, and that he was not to flash gang signs or wear gang colors or clothing, there is ample photographic evidence to establish that he was doing just that and that his gang associations and activities continued unabated. I cannot accept that Ndlovu could simply return to Winnipeg and live in Mad Cow territory after the Lloyd Sarsan incident without having ongoing and significant connections to the gang.

His explanations for the flashing of gang signs, or wearing gang colours or clothing by saying that he was acting out of fear and was intimidated by other gang members are simply unbelievable, and fly in the face of the sheer number of incidents and the activity depicted in the photographs. I noted with interest that the 2015 photograph was taken shortly after the birthday dinner of a gang member at an upscale Winnipeg restaurant, and that, by his own admission, Ndlovu was not only present but had his dinner paid for by the host.

This is hardly consistent with the state of affairs suggested by Ndlovu, that other gang members were actually being beaten up just for hanging out with him. [ 55 ] Ndlovu stated repeatedly that his relationship with his half-brothers was strained and that he rarely, if ever, saw them It was pointed out in cross examination that Ndlovu was working at a farm in Rolling River, a small Manitoba community, at the same time his brother was bound by a recognizance to reside in that same community.

I note as well that he and his brother were housed on the same range during a recent period of incarceration. [ 56 ] Further, his evidence respecting his tattoo, its meaning, and his motivation for obtaining it is contrary to the expert’s evidence and, frankly, makes no sense whatsoever. His evidence that he was intimidated by a Mad Cow member into getting a gang related tattoo, although he was at NG status with the gang, defies common sense. The date as to when he obtained the tattoo is of less significance than the fact that he kept the tattoo.

His evidence that he did not “have the money” to have the tattoo removed is inconsistent with his lifestyle at the time, which included money to purchase a car and to travel to and from Calgary and Red Deer. On this point, I accept the evidence of Sergeant de Groot, who testified that non-gang members would simply not be permitted to have or keep a gang tattoo.

The conclusion that, as of July 2016, Michael Ndlovu was a Mad Cow gang member is inescapable. [ 57 ] Ndlovu denies involvement in the fire, explains why he recalls being at his father’s apartment on the night of the arson, and called his girlfriend Breanne Fitzgerald (“Fitzgerald”) to provide alibi evidence. His alibi evidence requires some context.

By July, 2016 he and Fitzpatrick had been in a committed relationship for some time, although it began by being “on-again off-again” because he maintained contact with his former girlfriend “Samantha.” Ndlovu says that on July 1, 2016, after a series of sexually explicit texts, he had a rendezvous with Samantha at a local hotel. In support of his evidence, screen shots of a text exchange are filed as an exhibit.

Because he was on a curfew, he indicated that he returned to his father’s apartment before 11:00 P.M. [ 58 ] Ndlovu testified that on the following day, while he was showering, Fitzgerald found his phone, read the texts and became aware of the fact that he had cheated on her. As a result, an argument ensued. When they reconciled, Ndlovu testified that Fitzgerald “kept him on a short leash”, insisting on staying with him at his father’s apartment every night. He says that on the night of the arson he was home with Breanna and his father in compliance with his 11:00 P. M. curfew.

The Evidence of Breanna Fitzgerald [ 59 ] Fitzgerlad confirmed the history of her relationship with Ndlovu, and that they previously resided together at her apartment when he was not away working, until he was released on a recognizance which required that he stay with his father. She confirmed Ndlovu’s testimony that on July 2, 2016 she went through his phone and discovered the texts and his rendezvous with Samantha. She says they argued, after which she decided to spend every night with the accused at his father’s residence.

She described their routine, and attempted to give some actual details about their activities on July 15 and 16, although it became clear over the course of her testimony that she could really only provide generalities.

She says that at the time of the fire the accused was with her, that he did not leave on any evening after they went to bed, and that she would have been aware if he had gone out, even for a short period of time. [ 60 ] It strikes me that for someone who was purportedly keeping her wayward boyfriend on a “short leash”, Fitzgerald demonstrated a startling lack of knowledge about Ndlovu’s daily activities. She knows none of his friends. She doesn’t know where he goes or what he does during the day.

Beyond the piecemeal work he supposedly does at a farm that she has never been to, and whose location she cannot provide, she cannot say how he was able to contribute his half of the rent, being $800 per month. She claims to be unaware of the Mad Cows and their symbols, such as the “1303” Ndlovu has tattooed on his forearm. [ 61 ] Her dedication to Ndlovu, however, is evident. It was she who obtained the screen shots of the text messages that are filed as exhibits, from his ex-girlfriend Samantha.

And she acknowledged that both she and Samantha have assisted Ndlovu in obtaining release on bail. [ 62 ] Fitzgerald claims that, in response to his infidelity, she spent every night with the accused, meeting with him just prior to his court imposed 11:00 P.M. curfew. This was, presumably, her method to ensure that it didn’t occur again. The difficulty with this explanation is that Ndlovu’s tryst with his former girlfriend occurred before his 11:00 P.M. curfew. Fitzgerald presents as a relatively intelligent young woman, with both an education and employment history.

While I can accept that she was unhappy when she discovered Ndlovu’s extra curricular sexual activities, her purported solution hardly seems to address the problem. [ 63 ] The relevance of Ndlovu’s romantic activities is only that it provides context to Fitzgerald’s evidence. Even if I accept that Fitzgerald insisted on nightly sleep-overs, she acknowledged, eventually, that she has little actual memory of the evening in question, and is relying on what they usually did each night. A recitation of what they “usually” did is a factor when assessing the reliability of her evidence.

On that front, I have some serious concerns. [ 64 ] I also have concerns about the credibility of her assertions that during the early morning hours of July 16 the accused had to have been with her, at home in bed. Her willingness to turn a blind eye to his day time activities casts a shadow over the credibility of her evidence and causes the Court to wonder about her willingness to ignore a middle of the night absence. This assumes, as well, that she would have been aware if Ndlovu left for a period of time in the night.

It is not impossible to imagine that she might well have been unaware of an absence that occurred while she slept.

[65] I also have issues with the statement she purportedly wrote out approximately a month after Ndlovu’s arrest. Like Ameech, shetestified as to being unaware of the legal system, and specifically the process for witnesses and alibi witnesses. This does not come as asurprise and is quite easy to accept. What is more difficult to accept is her assertion that she wrote out a statement, but did not provide acopy to anyone, or even tell anyone, including Ndlovu’s lawyer, that it had been prepared.

While she may have been unaware that sheshould or could speak to the police, the fact that she did not even offer the statement to Ndlovu’s counsel stretches credibility. This mustbe considered alongside the fact that she did not speak to the police until shortly before the commencement of the trial. Her reticence,when she actually does speak to police, is more troubling, and casts a further shadow over her credibility. An Analysis of the Evidence Pursuant to R. v. W.(D.) [66] Considering the test set out in R. v.

W.(D.) I find that I am not able to accept as truthful the evidence of Perreault, nor does itraise a reasonable doubt. Indeed, in argument his counsel essentially conceded that there were concerns, given that his client was notcompletely forthcoming during his evidence, attributing this to the safety concerns that his client likely has from being in custody.Perreault does not present as a particularly sophisticated witness. While he downplays his gang involvement, unlike Ndolvu he does notassert that at the time of the offence he had completely severed ties with Mad Cows.

In that regard, his evidence is supported somewhatby the evidence of Sergeant de Groot, who testified that some individuals come and go from the gang and that even gang membersthemselves are not necessarily aware of who is presently an active member. [67] Having said that, there are a number of examples throughout Perreault’s evidence confirming that he is being less thanforthcoming with the Court. For example, he clearly did not want to identify the individuals who were providing him with drugs in 2013,claiming they came from a woman, whose name he did not know, whose description he was not able to provide.

He denied being awareof boundaries of Mad Cows territory. He was evasive when explaining the meaning of a gang related T–shirt he is seen wearing inFacebook photos. He denied knowing that Ndlovu was affiliated with the Mad Cows, despite the latter’s historical and significant familyaffiliation with the gang, and despite the fact that Ndlovu has a gang tattoo on his arm. There are discrepancies between his evidence andthat of Ndlovu as to the timing and amount of contact between the two.

Despite his assertions that he was limiting his contact, headmitted to being with a number of Mad Cow members when a confrontation occurred between the group and Kirstein some weeks priorto the fire. [68] All of the foregoing must be considered when assessing the alibi raised by Perreault. Given the concerns respecting thereliability of the evidence of Ameech, I cannot accept Perreault’s alibi evidence, nor does it raise a reasonable doubt. [69] With respect to Ndlovu, taking into account the findings previously articulated respecting his evidence and applying the test setout in R. v.

W.(D.), I do not accept his evidence, nor does it raise a reasonable doubt. I am satisfied that as of July, 2016, he was an activemember of the Mad Cows street gang. I do not accept his repeated denials, and I find that his evidence explaining his association withother gang members is completely lacking in credibility. [70] This credibility finding impacts directly on his evidence regarding his alibi. Further, for the reasons previously set out, I findthat of Ms.

Fitzgerald, neither is sufficiently credible or reliable so as to provide the accused with an alibi for the timeframe of the fire.As such, I do not accept Ndlovu’s alibi evidence, nor does it raise a reasonable doubt. The Impact of a Rejected Alibi [71] Although it was not raised in arguments, it seems appropriate at this stage to comment on the effect of the now-rejected alibievidence.

The case law recognizes the important distinction between alibi evidence that is disbelieved and therefore rejected, and alibievidence which is found to have been concocted and therefore can constitute evidence from which an inference of guilt can be drawn: seeR. v. Hibbert 2002 SCC 39 ; R. v. Clifford 2016 BCCA 336 ; R. v. O’Connor (ON CA). InHibbert, Arbour J. noted (at para. 62): Even if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate orcomplement the case for the prosecution, let alone permit an inference that the accused is guilty.

In O’Connor, the Court expanded on these comments, noting (at para. 19) that: the distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remainson the Crown throughout a criminal trial and helps to ensure that the trier of fact properly applies the burden of proof in cases wherestatements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for theCrown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence.

Thedistinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused’s explanation and maymove too readily from mere disbelief to a finding of guilt. [72] With that caution in mind, having analysed the evidence of both accused and concluded that I do not accept their evidence andthat it does not raise a reasonable doubt, it is necessary to consider the prosecution’s case as a whole to determine if all elements of theoffences have been proven beyond a reasonable doubt. [73] As indicated at the outset defence counsel made a number of helpful admissions which have assisted in focusing the evidence.At issue is the eyewitness identification of Justin Kirstein, his general credibility and his reliability as a witness and as an eyewitness.

Eye Witness Identification of Dallas Perreault [74] As indicated, Kirstein identified Perreault at various times in the investigation, and was invited to identify the accused in court.Although he was spoken to by police at varying intervals while recuperating in hospital, Kirstein was first formally interviewed onAugust 4, 2016. When asked to describe the perpetrators, he said the individual, who he admits he knows only by his Facebook name of

John Bustraid, was a “whitish looking Metis guy with glasses”. When asked about his height, Kirstein said “I don’t know exactly because we’ve never been, like, very close to each other”. When pressed, Kirstein, who is 5’11’ and 145 lbs. described the individual as being “5’9” or 5’10” at the most”, with a build as being “a little bigger than me”. Kirstein says that the circumstances were such that he was unable to properly see Perreault’s height. [ 75 ] Although he was asked to identify these accused in Court, Kirstein was not asked in direct examination to provide a physical description of his assailants.

What this leaves the Court to consider is the very general description provided to the police after Kirstein had an opportunity to speak to his girlfriend and accessed the internet. There are virtually no distinguishing features provided in his description. What is significant with respect to this limited description, however, is the fact that Perreault is 6’3”. [ 76 ] Further, the conditions of the purported eye witness identification were poor. This offence occurred at approximately 3:30 a.m. and the area was lit only by a city street light.

Kirstein acknowledges that the lighting conditions were such that he was unable to accurately see or describe the clothing worn by any of the assailants, other than to say that all were wearing dark clothing. I note, as an aside, that in his testimony Kirstein blames officers for a lack of clarity in the questions asked of him. He did confirm, however, that due to the poor lighting conditions he was unable to provide in any detail a description of the hair of his assailants.

No other distinguishing features, such as scars, marks or tattoos, were noted. [ 77 ] By all accounts, Kirstein’s opportunity to observe his assailants was brief. Crown counsel argues that this is a case of “recognition”, as Kirstein says he knew Perreault/Bustraid from previous encounters and from his pictures on Facebook. There are some noteworthy aspects to his evidence on this point. While Perreault admits that his Facebook name was John Bustraid, Kirstein was not shown any Facebook pictures of Perreault to corroborate his evidence on this point.

Kirstein also admits to having access to the internet and admits to discussing the firebombing with his girlfriend Shania Thompson prior to being asked to identify the accused. [ 78 ] Kirstein initially testified that he had seen Perreault in person on one previous occasion. He describes a confrontation between himself and a group of males that included Perreault/Bustraid. Interestingly Perreault admits to having been part of that group but denies any real interactions with Kirstein.

Despite this encounter Kirstein could not provide any distinguishing descriptors of the accused including Perreault’s height. [ 79 ] During the second day of his testimony, under cross-examination, Kirstein advised that on the previous evening he “recalled” another altercation, describing an incident where Perreault and another male were “throwing bricks at him” and he retaliated by spraying them with bear mace. Despite this incident, which was not previously raised by Kirstein in his interviews with either the police or Crown counsel, he says he was still unable to accurately assess Perreault/Bustraid’s height.

This means that the only detailed descriptor provided by Kirstein of the person who threw the rock, being the height, is not accurate. [ 80 ] Counsel have raised concerns about the manner in which the photo line up was conducted.

Frankly the greater concern is with respect to the issues already referenced being the timing of the line up, the complainant’s opportunity to discuss the incident with his girlfriend, his access to the internet, and the Facebook references prior to the line up. [ 81 ] I consider the eyewitness identification of the accused Perreault to be weak, and I am unimpressed by the supposed “recognition” evidence offered by the complainant. Eye Witness Identification of “Michael Amyotte”/Ndlovu [ 82 ] Kirstein’s evidence respecting Ndlovu’s identification is plagued with some of the same problems as with Perreault.

As with Perreault, Kirstein claims to have “recognized” Amyotte/Ndlovu from previous dealings, choosing his photo from the photo line up, and identifying him in Court. Interestingly, Kirstein actually implicated Amyotte/Ndlovu at the scene immediately after the incident and while being treated for his injuries. [ 83 ] As with Perreault, the physical description of Amyotte/Ndlovu to the police is very general and Kirstein acknowledges that the opportunity he had to make his observations was very brief.

Kirstein also acknowledged that the “third person”, who was not seen to actively participate, was difficult to see because he was standing further back. Virtually no unique or distinguishing features were identified. When asked by police to describe Amyotte’s hair Mr. Kirstein stated “it was, it was short dark hair but that - - I couldn’t really see his hair because he was further back. I could just barely see him. He was further back than the rest, the other two”. At another point, he tells police that he recognized two faces, “but the third face I could only recognize partially”.

As with Perreault, Kirstein was asked to identify the assailant in Court. Prior to the dock identification, Kirstein was not asked to provide a description of his assailant. [ 84 ] A brief glimpse of an individual may be sufficient for later identification if the complainant actually recognized the perpetrator. Kirstein testified as to a previous interaction with Amyotte/Ndlovu in March 2009 when both were housed in the Remand Centre on the “800 block”, an area reserved for gang members. They were not, however, cell mates and it appears that the Institution had made efforts to keep them apart.

During this time Kirstein asserts that he observed Amyotte/ Ndlovu through a 2’ x 2 1/2'” window while Ndlovu was going on break. It is unclear as to the number of times he made these observations and for what duration. Even accepting that Kirstein was housed at the Winnipeg Remand Centre at the same time as Ndlovu, the evidence as to his opportunity to observe the accused is sparse and predates the incident by some seven years. [ 85 ] He also stated, for the first time in cross-examination, that there were two other incidents involving Ndlovu.

Much like with the accused Perreault, Kirstein says that he only recalled these incidents the night before, after having already completed his direct examination. It is difficult to accept that Mr. Kirstein would not have mentioned these other incidents to either investigators or Crown counsel. [ 86 ] Kirstein testified that he knew Ndlovu through photos placed on social media. No Facebook photos were shown to him to corroborate this identification.

We know from the Agreed Statement of Facts that there was no Facebook page under the name Michael Amyotte, so presumably the photos referenced by Kirstein of Amyotte/Ndlovu were seen on someone else’s Facebook, or on a page created under another name. Confirmation in Court would have been of assistance. And while risking trying to have it both ways, defence counsel argues that the viewing of any Facebook photos, either before or after the incident, explains why Kirstein was able to identify

Ndlovu out of the photo lineup. [ 87 ] All other interactions between Kirstein and Ndlovu were by way of telephone calls, Facebook messages or text messages. No texts or messages have been filed to corroborate this evidence. And Kirstein’s recount of these purported conversations certainly demonstrates a degree of animus on his part, particularly towards Ndlovu. [ 88 ] While the identification of Ndlovu is bolstered by the comments made by Kirstein at the scene, I have considerable concern about the strength of the eyewitness identification.

The fleeting observation made by Kirstein under poor conditions is not sufficiently bolstered by the so-called recognition evidence, and is further diminished by concerns as to Kirstein’s credibility and reliability. Ndlovu as a Party to the Offence [ 89 ] Crown counsel relies on the evidence of Sergeant de Groot as it relates to motive behind Ndlovu’s purported presence at the scene, the theory being that, as a gang leader, he was present to ensure that the arson was properly carried out.

He concedes that there is no actual evidence of involvement, such as words, actions or gestures. [ 90 ] Given the concerns with respect to the reliability of the identification of Ndlovu, I cannot conclude that he was present and therefore party to the offence. Conclusion and Verdict [ 91 ] The third prong of the test in R. v. W.(D .) the Court must be satisfied that the Crown has proved all elements of the case beyond a reasonable doubt.

For the foregoing reasons, I have considerable concerns about the general credibility of the complainant Justin Kirstein, and I have concerns about the credibility and reliability of his eyewitness identification of these two accused as being present at or participating in the start of the fire. Accordingly, I have a reasonable doubt. [ 92 ] Let me be clear: whatever disputes existed between the parties in July of 2016, neither Justin Kirstein nor Shania Thompson deserved the injuries they sustained.

This arson was extremely serious and without detracting from the significance of the injuries suffered, things could have been much worse. Having said that, as with any case and regardless of the seriousness of the allegations, the burden of proof in any prosecution rests with the Crown. [ 93 ] Considering the totality of the evidence and for the reasons articulated, I am satisfied that it would not be safe to convict these accused on the evidence before the Court. As such, an acquittal will be entered on the arson related charges arising from July 16, 2016. “Original signed by” MARY KATE HARVIE, P.J.