R. v. J.B.-T., 2016 ONCJ 553

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. J.B.-T. , 2016 ONCJ 553 DATE: 2016·June·24 BETWEEN: HER MAJESTY THE QUEEN — AND — J. B.-T., a young person Before Justice E. B. Murray Reasons for Judgment released on June 24, 2016

Ms. Cara Sweeney .................................................................................. counsel for the Crown Mr. Alonzo Abbey ................................................................................ counsel for the accused MURRAY, E. B. J.: [1] J.

B.-T. is charged with assault bodily harm and possession of a dangerous weapon in connection with an incident whichoccurred on September 4, 2015 in the Gerrard/Yonge Street area of Toronto in which Urbino Hernandez was assaulted and stabbed. [2] A number of facts are either agreed upon by the parties or established in evidence from the Crown and undisputed by thedefence. 1. Mr. Hernandez’s injuries were serious. He was stabbed in the stomach—the wound was 3 inches deep. He was hospitalized for atotal of 5 days and lost over 2 months work.

The defence agrees that he was the victim of what is correctly characterized as an aggravatedassault. 2. The assault occurred a little past 11:30 p.m. on the east side of Yonge Street between Gerrard and Gould, outside of a male strip club,Remington’s, where it abutted the Evergreen youth shelter. 3. There was a large group of people, at least 10 and likely more, around Mr. Hernandez at the time of the assault. 4. The Defendant was present with a group of others on Yonge Street at the time of the assault, on the east side of Yonge Street,somewhere between Gerrard and Gould[1].

His precise position on Yonge St. at the time of the assault is a point of conflicting evidence. 5. Immediately after the assault, the Defendant was running southbound on Yonge Street towards Gould. Mr. Hernandez was standingon the east side of Yonge at a point somewhere north of the Defendant at the time the Defendant began running. 6. The Defendant admits that he had the knife which stabbed Mr. Hernandez in his hand as he ran, and that he threw the knife to escapepolice scrutiny because he knew that “it was something illegal”. 7.

Detective Ryan Fardell saw the Defendant throw the knife and immediately recovered it when it was thrown. 8. Later tests confirmed that a 1 inch smear of blood on the knife blade was the blood of Mr. Hernandez. . The Defendant was dressedall in black that night—black pants and black hoodie or jacket. [3] I have no direct evidence as to who stabbed Mr. Hernandez. The Crown’s case rests on circumstantial evidence. Thequestion which must be decided is whether the Crown has proved beyond a reasonable doubt that the Defendant stabbed Mr. Hernandezwith the knife.

The Crown submits that this is the only reasonable inference available from the evidence that I should accept. TheDefendant gave evidence that the knife was given to him by a person unknown to him, and that he did not stab Mr. Hernandez. Thedefence argues that his evidence should be believed, or should raise a reasonable doubt, or that, at the very least, the evidence as a wholeshould raise such a doubt. [4] In the trial of this case I heard evidence from Mr.

Hernandez and from 3 police officers involved in the investigation, OfficerFardell, Police constable Patrick Platte, and Police Constable Josh McKenzie, and viewed evidence from surveillance tapes fromRemington’s and from the Ryerson building at the corner of Gould and Yonge (the area where the Defendant was arrested). TheDefendant chose to give evidence. This is my decision. [5] The onus, of course, is on the Crown to prove the Defendant’s guilt beyond a reasonable doubt. I have assessed the evidencein accordance with the principles in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.).

W.D. statesthat: (

i) First, if I believe the evidence of the accused, I must acquit; (ii) Secondly, if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit; (iii) Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidencewhich I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The evidence Mr. Hernandez [6] Mr. Hernandez’s evidence is set out below. • He did not see who stabbed him that night.

• He could not identify his assailant as anyone in the courtroom. • On the night in question, he was working as a stripper/dancer at Remington’s at 379 Yonge. During a slow period he went with co- worker Ben across Yonge Street to the 7/11 for a soda. The 7/11 was on the east side of Yonge, south of Remington’s. He and Ben were wearing distinctive fluorescent tank tops, which identified them as employees of Remington’s. • Upon exiting the 7/11, he and Ben were harassed by 2 young teen boys making homophobic remarks. Words were exchanged. • He and Ben crossed back to the east side of Yonge, followed by the 2 boys.

Things became more heated as more people—10 or more— gathered. These people were older teens, male and female, and hostile. Four men had knives out. • Mr. Hernandez began to get scared, and tried to walk up Yonge towards Remington’s. People were crowding him. At one point he fell, and someone ripped his chain from his neck as he got up. • When he reached Ali Baba’s, a fast food restaurant south of Remington’s, he grabbed and threw a sandwich board at his pursuers. • He backed away, moving towards Remington’s. More people gathered.

People in the group grabbed his shirt, trying to force him down, and ripped it off him as he pulled away. • At last he reached Remington’s. Two females closed in, yelling homophobic remarks and hitting him; he held his hands up to protect himself. He saw a hand on his right and heard a male voice say “take that”. He felt the knife go in. The people around him scattered. • He went in and out of Remington’s, then collapsed, and was taken to hospital. • Mr. Hernandez was interviewed by officers at hospital.

In cross-examination, he was asked about police notes indicating that he had said that his assailant wore a blue shirt. He replied that he had the impression that night of “something blue”, but he wasn’t sure what, saying that maybe he “imagined it”. [ 7 ] Video footage from certain positions on Yonge, including from the exterior of Remington’s, was shown to Mr. Hernandez. The video was not of good quality, but Mr.

Hernandez testified that he was able to pick himself out at various points. • He identified himself and Ben crossing from the 7/11 to the east side of Yonge with the 2 young teens who had harassed them following, with 3 other men also following, one of whom is dressed in black or dark clothing. • He identified 2 females aggressively confronting him in front of Remington’s, and a man in the black pants, gray hoody or sweater near the females. • He testified that the attack with the knife took place during a few seconds off camera, and pointed to himself moving back onto the screen at 23-37:09 on film; he said this was immediately after he was stabbed. • When viewing the video shot in front of Remington’s in court, Mr.

Hernandez said he thought that the man in black and gray was the man who stabbed him . The officers [ 8 ] On the night of Friday September 4th, it was busy on Yonge Street. Officers from both 51 and 52 division were patrolling. Officer Fardell from 51 division was there in plain clothes in an unmarked car; Officers Platte and McKenzie from 52 division were there in a scout car, in uniform. Both were moving southbound on Yonge, with the car from 51 division in front. [ 9 ] All the officers noticed a disturbance when they passed Remington’s.

Officers Platte and McKenzie noted a large group of people, screaming and yelling. Officer Fardell noted screaming, yelling, pushing, and punching that involved up to 6 young males and 3- 4 dancers wearing the Remington tank top. [ 10 ] As they were passing Remington’s, all officers noted that some of the people grouped in front of the club began to run south. Officer McKenzie testified that some of the group ran north. [ 11 ] The attention of all three officers was drawn to a young male figure, all in black, who burst out running at the front of the pack headed south.

The officers’ evidence was that the man was running in a manner that indicated to them that he might well be armed. He was running with his right hand held against his waist or in his pocket, and with his left arm pumping furiously. [ 12 ] Officer Platte testified that others on Yonge Street were yelling and pointing at this figure. He kept his attention on the man as he ran down Yonge. [ 13 ] Officer Fardell testified that he saw this figure start running from the spot at Remington’s where he observed the altercation took place. He kept his attention on the figure as he progressed south.

Officer Fardell testified that the figure kept looking back while running and holding his side. [ 14 ] Officer Fardell saw the 51 division car ahead of him, pulling over across the northbound lane of Yonge and stopping. He jumped out of his car; he intended to stop this man. The running figure was then about 10 feet north of the 51 division car. He saw the officers from 51 division exit their car, and observed the man make a throwing motion, and observed the trajectory of the object thrown.

Officer Fardell was almost flush with the man when he made these observations. [ 15 ] Officer Fardell went to the object thrown, and saw a knife. He testified that the spot where he found the knife is about 50-100 feet south of Remington’s.

[ 16 ] In the meantime, Officer Platte and Officer McKenzie exited their car. Officer McKenzie observed people pointing at the man who had been running. The officers detained the man, who identified himself as the Defendant. The time was 23:38:39. [ 17 ] When advised by Officer Fardell of the knife he had seen the Defendant throw and retrieved, Officer McKenzie arrested the Defendant on a charge of carry a concealed weapon [2] .

The officer noted that the arrest was made at 23:40. [ 18 ] Within minutes, a radio call alerted the officers to the stabbing outside Remington’s up the street. [ 19 ] Both Officer Fardell and Officer McKenzie noted that the Defendant when detained had a gold or metal grill affixed to his front teeth. The Defendant [ 20 ] The Defendant lives at Jane and Sheppard in northern Toronto and was 16 years old at the time of the incident. [ 21 ] On the night in question, he left home to go to Dundas Square with 3 other males whom he said were neighborhood friends, intending to smoke cigarettes and “chill”.

Despite the fact that the Defendant described these individuals as friends, he testified that he did not know their names or addresses or ages. He knew them only by street names. [ 22 ] The Defendant testified that this group was accompanied that evening by 5 other males, who were known to some of his 3 friends but whom he had not known previously.

He could provide no names or identification of these males, except to say that they were black, some light-skinned and some darker. [ 23 ] The Defendant said that while his group was sitting in Dundas Square, 2 younger teen boys, unknown to him or anyone in the group, came asking help, saying that they were being assaulted. This was at about 11:30 p.m. [ 24 ] The Defendant testified that the group (all 8) walked to the corner of Yonge and Dundas.

As he looked far north – up by Gould-- he could see a boy lying in the street and someone standing over him, someone who was wearing a fluorescent tank top. [ 25 ] The group started walking north on Yonge--the Defendant said on the east side. The Defendant testified that he observed a verbal argument in front of the 7/11 on the west side of Yonge between some of the 5 males who were in his group (but unknown to him) and 2 men in fluorescent tank tops.

The Defendant could not hear what was said, and observed no physical altercation. [ 26 ] The Defendant was unclear about whether he had ever gone to the west side of Yonge, by the 7/11. He conceded in cross- examination that maybe he had, and that he was part of the group seen identified by Mr. Hernandez on video, crossing from the west side of Yonge back to the east, following behind Mr. Hernandez and Ben. [ 27 ] The Defendant testified that at this point he “saw a sign flying”—allowing that maybe it was the sign from Ali Baba that Mr.

Hernandez testified to. [ 28 ] The Defendant’s evidence is that after he saw the sign “flying”, he was standing in the road on Yonge Street, on the east side. He said that there was no traffic on Yonge going north. [ 29 ] The Defendant testified that there was a large group of people around him; he saw no fighting and certainly no stabbing. Then, a man came up to him and thrust a knife into his hand, his left hand. He did not know why. The Defendant says that the man made as if to shake his hands—using his left hand, and he found the knife there.

The Defendant did not notice blood on the blade, or even really look at the knife. [ 30 ] The Defendant testified that the man who gave him the knife was one of the 5 men who had accompanied him and his 3 friends that evening—he was not sure which of the 5, and he could not describe the person other than to say he was a black male. [ 31 ] The Defendant testified that he is not really sure where he was when he was given the knife, but that he was certainly not in front of or anywhere near Remington’s, then or at any time that evening.

He gave various estimates of how far he might have been from Remington’s when he received the knife--“20 feet, 30 feet, 40 feet”. [ 32 ] The Defendant testified that after the knife was given to him, he heard someone yell “run” and he started running, with both arms pumping up and down, with the knife in his left hand. He says that after he had run a few steps, he asked himself why he was so stupid to be running with a knife, which he knew was” illegal”.

At that point—right as the car from 51 division pulled up in front of him-- he threw the knife away. [ 33 ] The Defendant was asked if he had made any effort to identify the man whom he says gave him this knife. He admitted that he had not. [ 34 ] The Defendant added that early in this trial three men had confronted him in the lobby of the courthouse, telling him not to “be a rat”. He said that these men were part of the group of 5 that he had been unable to identify earlier, when this incident took place. He had no idea why these threats were made. He did not report the threat to police.

Although defence counsel suggested that a witness to corroborate this alleged threat would be called, that witness did not materialize. Analysis [ 35 ] The Crown’s case against the Defendant relies upon circumstantial evidence. Justice Michael Code set out in a recent case [3]

the test which the Crown must meet in such a case. 58 To satisfy the Crown's burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference fromthe primary facts. ….See: R. v. Cooper (1978), (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), (ON CA), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28 , 244 C.C.C. (3d)289 at 303 (S.C.C.). 59 The first step in a circumstantial case, is to determine what primary facts have been proved.

The second step is to determine whatrational non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 at31-2 (S.C.C.); R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Alexander (2006), 70W.C.B. (2d) 321 (S.C.J.) [36] Before determining what primary facts are established in this case, I must consider the credibility and reliability of thewitnesses. [37] I find Mr. Hernandez to be a credible witness. His account of the incident was detailed. He did not exaggerate what he sawthat evening, and was candid about what he did not see.

He admitted that he could not identify the Defendant as his assailant, and that hedid not see the assailant. [38] I accept Mr. Hernandez’s evidence, with the exception of his remarks suggesting that the assailant wore a blue shirt, or a grayjacket. Mr. Hernandez did not resile from his evidence that he did not see his attacker and that he was surrounded by a crowd of people atthe time he was stabbed. He may have seen both a person with a blue shirt and a person with a gray jacket among the crowd, but, withoutmore than that, any suggestion that either person was his attacker is speculation. [39] Mr.

Hernandez’s evidence when viewing the video establishes that he was stabbed at approximately 23:37:09 that evening infront of Remington’s. [40] I found the officers’ evidence to be credible and reliable, and I accept their evidence. They had no personal interest in theincident. They kept notes of the events that evening, made shortly after the incident. They were careful in their evidence to make clearwhat they did not see.

They did not see the actual stabbing, and could not identify the Defendant as someone who was involved in thealtercation in front of Remington’s. [41] What they did see was the Defendant running from Remington’s southbound on Yonge with what we now know was a knifein his hand, a knife with Mr. Hernandez’s blood on it.

Officer Fardell had the Defendant under continuous surveillance from the time theDefendant began running from in front of Remington’s to the time he observed the Defendant to throw the knife. [42] The evidence of Officer Platte establishes that the Defendant was detained on Yonge Street south of the scene of the stabbingat 23:38:39. [43] I found the video evidence of limited utility, as the evening was dark and the film was not very clear. What was helpful inthe film was that Mr.

Hernandez could refer to it to identify the time during the incident when he was stabbed. [44] I did not find the Defendant to be a credible witness. I say that for a number of reasons. 1. The Defendant’s evidence as to how he came into possession of the knife is beyond belief. Why would an innocent man accept aknife handed to him in the middle of a crowd, in an atmosphere which even by the Defendant’s description involved heated verbalconflict? And why would he run with it?

It would be understandable for him to do so if, for example, one of his associates had done thestabbing and he agreed to (or was pressured into) helping the perpetrator by removing the weapon. There is, however, no evidence to thiseffect. The most I have is his statement, made only at the end of his cross-examination, that one of his associates warned him not to “rat”,evidence upon which I place no weight. That is not evidence that explains why the Defendant might have accepted and ran with a knifethat night. 2. The Defendant’s evidence as to how the knife was transferred to him is unbelievable.

He said that a man delivered the gun to him by“a handshake”, from his left hand to the Defendant’s left hand (not the right hand).That action would be awkward anatomically; it wouldinvolve a rotation of the Defendant’s hand in order to accept the gun. The gun would not just have “slipped into” the Defendant‘s hand,as he testified. 3. The Defendant’s evidence was extraordinarily vague on almost every aspect of the evening and this incident. He could offer almostno evidence as to the identity of any of the 8 men who accompanied him that evening.

He has done nothing since the incident to obtainthis information, information that would be to his advantage to obtain, given his evidence that one of those men handed him the gun. The Defendant’s fuzzy recollection extended to other aspects of his testimony—his location on Yonge Street, whether he ever crossed tothe west side of Yonge Street, what stores or other landmarks were on the street, and the location of any of his associates after theybegan moving up the street. 4.

The Defendant’s evidence conflicts with other evidence which I do accept on several points. • The Defendant says that he was not anywhere near Remington’s that evening. The evidence of the officers is that he was in frontof Remington’s at the time they saw him begin to run. • The Defendant says that when he began to run, he was on the street and had been standing on the street for some time. Theofficers’ evidence is that he was on the sidewalk. In addition, the video evidence at the approximate time of the incident shows a stream

of vehicles in the northbound lane, where the Defendant maintains he was standing. • The Defendant denies wearing a gold or metal grill on his front teeth that evening. Officers Fardell and McKenzie are clear that he was wearing this appliance. • The Defendant says that he ran with the knife in his left hand.

The officers are clear that he was running with the knife in his right hand. [ 45 ] Some of these points of disagreement are minor, but to me they indicate that the Defendant was making up his story as he went along, careless as to its accuracy, focused only on denying anything that might implicate him in the stabbing. [ 46 ] I do not accept the Defendant’s evidence, including his denial of being the person who stabbed Mr. Hernandez, for the reasons set out above. His evidence has significant internal frailties, and the weight of the external evidence against him is substantial.

The Court of Appeal has held that acceptance of conflicting evidence is a proper basis for rejecting the evidence of a defendant. [4] [ 47 ] I find that the following primary facts have been proven. 1. The Defendant was in front of Remington’s at the time of the stabbing. 2. The Defendant ran from Remington’s with a knife in his hand, the knife that was used to stab Mr. Hernandez. 3. The Defendant threw the knife before he reached Yonge and Gould. 4. The Defendant was under continuous surveillance by Officer Fardell from the time he began running to the time he threw the knife. 5.

The Defendant was detained at Yonge and Gould within 90 seconds of the stabbing . [ 48 ] The only logical, non-speculative inference to be drawn from these facts is that it was the Defendant who did the stabbing, and that he was running from the scene of the crime. [ 49 ] Given my acceptance of these primary facts and the inference that follows and given the frailty of the Defendant’s evidence in which he denies being the person who stabbed Mr. Hernandez, I reject his evidence completely.

His evidence and the evidence as a whole does not raise a reasonable doubt in my mind. [ 50 ] Accordingly, I find the Defendant guilty of aggravated assault. It follows, based on the findings I have made, that the Defendant is also guilty of possession of a weapon dangerous to the public, and I so find. Released: June 24, 2016 Signed: Justice E. B. Murray