R. v. M.(S.), 2011 ONCJ 80

WARNING The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. Citation: R. v. M.(S.) , 2011 ONCJ 80 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — S.M. and T.S., young persons Before Justice Borenstein Reasons for Judgment released on February 14, 2011 B. Jones ..................................................................................................................... for the Crown D. North ................................................................................................................. counsel for S.M. J.

Wilton ................................................................................................................ counsel for D.B. BORENSTEIN J.: [ 1 ] This is my decision as to whether the Crown has proved S.M.’s guilt with respect to the charges arising out of a robbery

with a firearm and assault causing bodily harm. [ 2 ] During the trial, the Crown applied to adduce confessions to the police allegedly given by S.M. and his then co-accused D.B.. The Crown also applied to adduce the out-of-court statement of an accomplice, T.S., who was a witness at the trial for the truth of its contents pursuant to the authority of K.G.B. (the “ K.G.B. statement”). Last week, I ruled that the two alleged confessions were inadmissible but admitted the K.G.B. statement. Following that ruling, the charges against D.B. were dismissed at the request of the Crown. No defence was called.

Submissions on conviction were made in relation to S.M.. I incorporate my recitation of the evidence from those earlier rulings into this decision. I exclude from consideration the two alleged confessions as well as S.M.’s evidence on the voir dire . [ 3 ] Just to briefly review the allegations to set the context for this judgment, on February 8, 2010, Mr. Kandiah, was working alone in his convenience store on Markham Road. Shortly after 8:20 pm, probably closer to 8:45 p.m., five masked males entered through the back door of Mr. Kandiah’s store and violently robbed him.

The entire robbery was captured on the store’s security camera. [ 4 ] One of the males was carrying a shotgun as he entered and approached Mr. Kandiah. The Crown alleges that person to be S.M.. Mr. Kandiah was behind the counter. While the male with the shotgun pointed the gun at Mr. Kandiah, the men began stealing various items including coins, cash, TTC and lottery tickets, as well as packages of cigars and cigarettes. They also stole Mr. Kandiah’s keys. The male with the shotgun pointed the shotgun directly at Mr. Kandiah and waved it at him continually in a threatening manner.

That male then began striking Mr. Kandiah in the head and upper body with the barrel of the shotgun, breaking various bones in Mr. Kandiah’s face. Another male began punching Mr. Kandiah. Mr. Kandiah thought that male was using brass knuckles. Mr. Kandiah had not been resisting. The males then fled the store with the stolen items. [ 5 ] Mr. Kandiah activated an alarm which alerted the police to the robbery. Officers received calls to attend the scene at approximately 8:46 p.m. Mr. Kandiah was only able to provide a very generic description to the police.

He told the police that he had been robbed by five young black males wearing dark clothing. He could not identify any of the males. [ 6 ] Numerous police officers attended the scene and quickly set up a perimeter at various locations within about a kilometre of the Markham Road store. Very few pedestrians were out on the street at the time according to the officers. [ 7 ] Constable Stubbs and a police dog, By-Tor, attended the scene of the robbery. The dog began tracking a scent from the parking lot of the convenience store.

The dog led the officers though a golf course located just east of the store to the north end of that golf course. A fence separates the north end of the golf course from Scarborough Golf Club Road. The dog led the officers to a shed just across the fence at 458 Scarborough Golf Club Road. Two people were found hiding in that shed by the police at 9:34 p.m. The two males were S.M. and T.S.. The shed was about a kilometre away from the scene of the robbery. It is conceded by S.M. that he had no connection to that property.

S.M. and T.S. were arrested. [ 8 ] The police dog then located a backpack in the bushes of 460 Scarborough Golf Club Road, two houses from the shed. The police seized that backpack. It was later discovered to contain property stolen from this robbery including Mr. Kandiah’s keys. [ 9 ] I have been asked not to consider the dog tracking abilities of By-Tor as being anything other than background context to explain how it was the officers located S.M. and T.S. and the knapsack.

Specifically, the Crown indicated it was not seeking to establish the dog’s abilities to accurately track a scent. [ 10 ] In any event, within an hour of the robbery, five youths, including S.M. and T.S. were arrested by the officers who had set up at various locations within the perimeter. They were all taken to the police station. [ 11 ] I heard from Mr. Kandiah as well as from many of the officers who attended the scene as well as the detectives who investigated this case. I also heard from T.S.. [ 12 ] By the time T.S. testified at S.M.’s trial, he had already pled guilty to being part of this robbery.

He testified that he did not know how many others were involved in this robbery. He did not know their names or nicknames. He testified that he did not know that a gun would be involved. Of note, when one views the D.V.D. of the robbery, the gun is pointed directly at the victim from the first moment the men enter through the back door. No one, at least outwardly, appears surprised. None hesitate or stop.

They all continue with their crime. [ 13 ] T.S. testified that, after the robbery, he ran from the store, through the golf course, over a fence and hid in a shed where he remained until was arrested by the police. [ 14 ] He testified that he and S.M. have known each other since they were very young. They are very close and consider each other cousins. He calls S.M. “D”. [ 15 ] T.S. testified that he saw S.M. after school on the day of the robbery at a Burger King and in an area of Scarborough known as Cougar Court. He testified that he did not see S.M. at the robbery.

He conceded that S.M. was in the shed with him when the police arrived. He testified that he did not know why S.M. was in the shed. S.M. just entered the shed after T.S. did. He did not say anything and he did not know why S.M. was in the shed. [ 16 ] In T.S.’ statement to the police, however, he implicated both himself and S.M. in the robbery. He told the police that he and S.M. were cousins. He told them they met just before the robbery in the hallway outside the back door of the store. He was shown a photo of the five men taken from the hallway and identified a masked male as S.M..

He told the officers that he brought and stashed a change of clothes when he committed the robbery. He threw away his jacket and put on those clothes as he fled the robbery. He told the officers that he ran from the scene and hid in the shed. He was asked who had the gun and replied that he knew but would not say. He told the police that neither he nor S.M. had the backpack.

[ 17 ] T.S. testified that he gave that statement to the police because Detective Watts threatened him and told him to lie in his statement. Detective Watts told him to say that he had spoken to duty counsel when he had not. Detective Watts then testified and provided the name of the duty counsel who called the station and spoke with T.S.. I rejected T.S.’ evidence earlier on the s. 9(2) and K.G.B. applications and incorporate my reasons herein. In my view, he spoke freely to the police, albeit reluctantly. He decided how much he was prepared to say.

When the subject of who had the gun came up, that was more than T.S. was prepared to talk about. [ 18 ] That was the evidence called at this trial. No defence was called. [ 19 ] The Crown argues that it has proved its case against S.M. beyond a reasonable doubt. It cautions me about the unsavoury witness T.S., both in terms of his in-court testimony and his K.G.B. statement. However, the Crown argues that, when one looks at the independent evidence corroborating T.S.’ statement to the police and evidence, it is safe to rely upon those sources to find that S.M. was one of those involved in this robbery.

As such, he should be found guilty of both offences. [ 20 ] The defence argues that this case comes down to whether the Court can rely on T.S.'K.G.B. statement implicating S.M. to carry the Crown’s case. Without it, the defence argues, the Crown cannot prove its case. It also argues that, even accepting S.M. was part of this robbery, the Court cannot be satisfied beyond a reasonable doubt that he would have known and agreed to participate in a robbery with a firearm and that aspect of the charge should be dismissed.

Finally, even if I was satisfied that he was guilty, without S.M.’s statement, there is no basis to find that S.M. was the male with the gun. [ 21 ] Let me turn now to my findings. There is no onus on S.M. to prove anything. In order to secure a conviction or convictions against S.M., the Crown must prove each element of the offences beyond a reasonable doubt. Further, in that the Crown relies, in some measure, on T.S.’ evidence, both in and out of court, particular caution is required before relying upon anything T.S. has said.

Caution is required because T.S. is an accomplice; because he is an unsavoury witness; and because, in Court, he has well demonstrated that he has little regard for speaking the truth. I would not rely on anything T.S. said unless it was substantially corroborated by independent evidence that I could rely upon. However, to the extent that T.S. exculpates S.M., that evidence does not have to be accepted.

It is sufficient if his evidence, in the context of this case, raises a doubt in my mind. [ 22 ] With that in mind, let me turn to the question of whether the Crown has proved its case against S.M.. [ 23 ] It is clear that five young males committed this robbery. We know the five fled from the robbery. The police immediately set up check points. Few people were around. Within a short period of time after the robbery, two males were found hiding together in a shed to which they have no connection.

Although they are approximately a kilometre away from the robbery, there is a discarded backpack containing property from the robbery including the victim’s keys. Those facts alone, while highly suspicious, would not be enough to persuade me beyond a reasonable doubt that S.M. was involved in this robbery. [ 24 ] However, it is clear that one of the males in the shed, T.S., actually committed the robbery. He pled guilty to this robbery and he admitted it at this trial. Further, he testified that he fled from the robbery to the shed where he was hiding.

That is corroborated by the timing of events and the fact that he was found in the shed. That additional fact, that one of those two males in the shed, has been proved to have committed this robbery, together with the other factors I just mentioned, is sufficient to persuade me beyond a reasonable doubt that S.M. was involved in this robbery. The circumstantial evidence proves the guilt of S.M. beyond a reasonable doubt.

In other words, I need not rely on anything T.S. said to the police or to the Court, other than the fact that he involved in this robbery to satisfy me beyond a reasonable doubt. [ 25 ] While I have already indicated that I will treat anything T.S. testified to, or told the police, with caution and scepticism, I accept that he was involved in this robbery, that he is friends with S.M. and that he ran straight from the robbery to the shed where he was then found hiding with S.M.. [ 26 ] T.S.’ evidence that he did not know who or when or why S.M. came to be in the shed is ludicrous and reflects both T.S.’ untruthfulness and his desire to not implicate S.M. at this trial.

I rejected T.S.’ evidence earlier on the s. 9(2) and K.G.B. applications and incorporate my reasons herein. In addition to those reasons, a review of the statement reveals that he spoke freely to the police, albeit reluctantly. He did not want to implicate anyone. But he said enough to implicate S.M. in that statement.

When the subject of who had the gun came up, that was more than T.S. was prepared to talk about. [ 27 ] The defence submission that, on the evidence, one reasonable inference might be that a youth such as S.M. came across T.S. fleeing from the police and thought it would be exciting to hide with him is without any evidentiary basis and is pure speculation. In fairness, Mr.

North was ethically constrained by what he knew to be in the excluded confession and was properly postulating what he submitted were reasonable inferences that were capable of being drawn from the evidence. [ 28 ] The Crown seeks to make substantive use of T.S.’ statement implicating S.M.. [ 29 ] As I have indicated, I am satisfied beyond a reasonable doubt without the use of T.S.’ out-of-court statement. [ 30 ] I have already ruled that the Crown may rely on T.S.’ out-of-court statement for the truth and incorporate my comments in that ruling herein.

However, the same factors that require caution before accepting anything T.S. said to the Court or the police apply with equal force at this juncture.

In other words, I still would not rely upon anything in that statement that implicated S.M. unless that part of his statement was significantly corroborated by independent evidence that I did accept. [ 31 ] In essence, the only aspect of T.S.’ out-of-court statement that could potentially be relied upon is that part of his statement where he admitted being involved in the robbery, indicated that S.M. was also involved, and that he fled to the shed after the robbery. Those aspects of the statement are all corroborated in the manner already described. T.S.’ own involvement has been proved.

He was found hiding in the shed after the robbery. Finally, his statement to the police that S.M. was involved is significantly corroborated by the fact that, right after the robbery, S.M. is found hiding in the very shed Steven fled to right after the robbery. [ 32 ] I am satisfied beyond a reasonable doubt that S.M. was fully involved in these two offences. As for the defence

submission that S.M. may not have known the shotgun would be used, there is nothing in this case that causes me to have a doubt about that issue. The gun, while not visible in the video of the men in the back hallway, is immediately visible and presented at the very start of this robbery. The various participants all continue the robbery notwithstanding the presence of the gun, as if the robbery was proceedings according to plan. No one withdrew. No one stopped. No one hesitated.

The suggestion that, maybe, S.M. did not know the gun would be used and that he should not be found guilty of the firearms aspect of the offence is speculative and without any foundation, either in the direct and circumstantial evidence or from any possible inferences that may arise. [ 33 ] Finally, I agree with the defence that the Crown cannot establish that S.M. was the one wielding the gun during this robbery. [ 34 ] He will be found guilty of all offences as charged. Released: February 14, 2011 Signed: “Justice Borenstein”