R. v. Laplante, 2012 ONCJ 538

Citation: R. v. Laplante , 2012 ONCJ 538 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Levy ) for the Crown ) — AND — ) ) ) Mr. J. Berman KODY LAPLANTE ) for the accused ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] The accused, Kody Laplante, pleaded not guilty to charges of break enter and commit robbery with a firearm, robbery with a firearm, assault with a weapon, utter death threat, possession of firearm while subject to a weapons prohibition order and three counts of breach of probation. The Crown proceeded by indictment on the Crown-elect offences. Mr.

Laplante elected to be tried in the Ontario Court of Justice. Overview of the evidence [ 2 ] The complainant is Calvin Anderson. He is 58 and blind in one eye. At the time of the allegations he resided in an eleventh floor apartment at 10 Gordon Ridge Place in Scarborough. He supports himself on a disability pension and was supplementing his income by selling marijuana. Two of his customers were the accused and Mr. Laplante’s mother, Debra. Mr. Anderson told the court that on February 19, 2012 around 9:45 p.m there was a knock at his apartment door.

He opened the door to see a young male who asked him for some weed. Anderson said no and noticed Laplante standing against the hallway wall. The young man pushed the complainant back into his apartment, grabbed him by the shoulders and took him to the floor. The young man asked where Anderson’s money was and held a gun to Mr. Anderson’s neck. Anderson said that at one point Laplante took the gun from the other male and threatened to kill the complainant. Anderson told him the money was in his bedroom. Laplante walked into the bedroom where he found a suitcase with $100 in an envelope.

Laplante took the money and then left the apartment with the other male. [ 3 ] The Crown introduced photographs taken by the police of Mr. Anderson which showed the complainant’s bruised right knee and dust on the right shoulder of his shirt. Anderson said that he bruised his knee during the altercation. His right shoulder was pinned to the floor by the young person during the altercation. [ 4 ] Kody Laplante denied committing a robbery or having a weapon. He told the court that he had known Anderson for about a year and half. Laplante frequently visited Anderson in order to purchase and smoke marijuana.

Laplante’s mother also bought marijuana from Anderson. She also lived in the same building. Prior to February 19, Laplante owed the complainant ten dollars. Laplante learned there had been an incident when Anderson pushed his mother and snatched ten dollars out of her hand. This incident upset both Debra and the accused. Three or four days before the incident, Laplante was riding in an elevator with Anderson who called Laplante a “punk”.

On February 19, 2012 Laplante along with his girlfriend, Chanelle Cull and a friend named Malik Morrison visited another friend named Jim who lived on the 17 th floor of the building at 10 Gordon Ridge. Laplante had been drinking and was intoxicated. Laplante decided he wanted to confront Anderson for the way he treated his mother in the earlier incident. He told the court that as a result of his drinking he was not thinking rationally. He and Morrison went to Anderson’s apartment and knocked at his door. His girlfriend was by the stairwell.

Laplante asked Anderson why he pushed his mother and took ten dollars out of her hand. Anderson said he didn’t do anything and told Laplante to leave the building. Laplante said he “stepped into his face” and Anderson pushed him back. Laplante then punched Anderson in the face. Laplante told Anderson that if he ever put his hands on him or his mom he would break his skull. The accused claimed that this incident took place at the doorway of Anderson’s apartment and the altercation never continued inside the apartment. Malik and his girlfriend stood by the stairwell during the incident.

He denied stealing anything from Anderson. He told the court that while in pre-trial custody at the Toronto East Detention Centre, he received a letter that purported to be from Anderson recanting the allegations, particularly the part relating to the gun. That letter was entered as an exhibit. [ 5 ] Debra Laplante testified about the incident involving her and Mr. Anderson. Her son owed Anderson ten dollars. For some reason, Anderson was holding a carton of cigarettes for Ms. Laplante. He grabbed ten dollars from her hand and refused to return her cigarettes. There was a physical altercation between Ms.

Laplante and Mr. Anderson. The police came and sorted the matter out by retrieving her cigarettes and the ten dollars. [ 6 ] Chanelle Cull, the accused’s girlfriend at the time of the incident, testified that she was with Laplante and Malik at Jim’s place on the 17 th floor prior to the incident. Laplante was upset and wanted to confront Mr. Anderson. She witnessed her boyfriend and Mr. Adnerson arguing in the doorway of Anderson’s apartment. She saw Laplante punch Anderson in the face causing Anderson to fall back.

She heard Laplante say if you ever touch his mother or him again he would break his skull and then all of them left. She testified that she was eventually arrested for robbery. Her ipod was seized and on it was the photograph of Laplante holding a firearm. She claimed she didn’t know when the picture was taken. She also admitted that she offered Mr. Anderson a bribe of $500 to not go to court and testify against her boyfriend. She claimed that the accused had nothing to do with her attempt to obstruct justice. [ 7 ] There was a photograph on Chanelle’s ipod that was seized by the police.

In the photo the accused is holding a firearm. Ms. Cull didn’t know when the photo was taken nor was she in the room when the photo was taken. She thought she had seen the gun at Kody’s mother’s house and thought it was a water gun. Laplante claimed he took the photo on January 23 at Jim’s place. He put the gun on Facebook on January 23 but took it down a few days later. His girlfriend said that the only day she was at Jim’s place was the day of the incident. There was no definitive evidence introduced at trial as to when the photograph was actually taken.

Analysis [ 8 ] The accused is presumed innocent and the Crown must prove his guilt beyond a reasonable doubt. As in most criminal trials, an assessment of the credibility of the witnesses is important here. The accused testified and in assessing his testimony as it relates to reasonable doubt, I have applied the principles set out by the Supreme Court of Canada in R. v. W.D . [ 9 ] There is no controversy that Laplante both assaulted and threatened Mr. Anderson. The accused admitted as much.

As well, on his own testimony Laplante admitted that he was never in fear of Anderson during the incident and did not act in self defence when he assaulted the complainant. Defence counsel did not dispute that the Crown has proven beyond a reasonable doubt that the accused committed an assault and uttered a threat. [ 10 ] For his part, Crown counsel concedes that there is insufficient proof that a firearm was used and that the charge of possession of a firearm while bound by a weapons prohibition order, count 5, should be dismissed.

It is also conceded that the accused could be convicted of only robbery and not robbery with a firearm. [ 11 ] The main issue in this trial concerns whether the Crown has proven beyond a reasonable doubt that Laplante committed a robbery. To determine this issue, the court must assess both the credibility and reliability of the testimony provided by the witnesses. [ 12 ] Mr. Anderson, the central Crown witness in this trial, never wavered in his testimony that the accused and his young associate, whom we now know to be Malik Morrison, robbed him at gun point inside his apartment.

Having said that, I cannot ignore several inconsistencies in Mr. Anderson’s account of the events. For example, Anderson testified that it was the young male who asked him where the money was. Anderson told the police it was Laplante who asked where the money was. Anderson told the police that he said he had no money. In testimony Anderson said that he told the other male that the money was in his room. Anderson told the court that he saw Laplante go into his bedroom, went into the suitcase on his bed and took out an envelope with $100.

In cross-examination he said he didn’t observe this because his eyes were closed at the time and he was traumatized. On this particular point, Anderson told the police that once he got up from the floor, he went into the bedroom and saw that a suitcase from his closet was now open on his bed. [ 13 ] In chief the witness said that the young male held a gun to his neck. However Anderson told the police that Laplante had the gun.

In cross examination, Anderson said that after Laplante came out of the bedroom he took the gun from the other male and held it to his cheek. [ 14 ] In testimony the witness said that Laplante told him he would kill him. He told the police that Laplante told him “I should just kill you.” [ 15 ] As well the witness was less than forthcoming in chief about his drug dealing activities. He only revealed this fact when pressed in cross-examination. [ 16 ] At the very least, the witness appeared confused when confronted with these inconsistencies. Mr.

Anderson said that his confusion resulted from the trauma he experienced as a result of the incident. The defence submitted that he was simply lying. Whatever the reasons may be, the evidence of the Crown’s principal witness is problematic and raises serious concerns regarding his credibility and reliability. [ 17 ] I have carefully reviewed all of the evidence to determine whether there is any evidence to support the Crown’s theory that the accused had committed the robbery alleged by the complainant. The photographs show the dirt on the right shoulder of Mr.

Anderson’s shirt and his bruised right knee which certainly supports the complainant’s testimony that he was assaulted. Also, it makes common sense that that the accused must have played some role in his girlfriend’s attempt to bribe the witness. I strongly suspect that the recantation letter the accused said he received in custody was also a fabrication. The letter said that Mr. Anderson was making up the part about the gun and likely came from him seeing the photograph of Laplante posing with the gun.

I tend to believe the witness that he had nothing to do with writing the letter and that he had never seen the photo referred to in the letter of Laplante posing with what appears to be an authentic looking gun. These attempts to obstruct justice is evidence of consciousness of guilt. [ 18 ] The photograph from Ms. Cull’s iPod of the accused posing with the handgun is potentially strong evidence of guilt if the Crown could show it was taken close in time to the alleged robbery. However, there is an absence of reliable evidence as to when the photograph of the gun was taken.

The testimony of the accused and his girlfriend differ on the timing and both were very unreliable witnesses in any event. [ 19 ] I note that there was no evidence adduced with respect to the scene of the crime that established the state of the complainant’s apartment and, in particular, whether or not there ever was a suitcase on Mr. Anderson’s bed as the complainant maintained. That kind of evidence, had it been available to the court, might have supported Mr. Anderson’s version of events. [ 20 ] The accused admitted that he threatened and assaulted Mr. Anderson.

His testimony that this was not a robbery was not credible. He claimed that he punched Anderson in the face but there isn’t a mark on the complainant’s face. From his frequent visits to the apartment to buy and smoke marijuana, Laplante would have had a good idea where the complainant kept his drugs and possibly his

money as well. This combined with his animus toward Anderson provides good evidence of motive for robbery. Again his likely involvement in his girlfriend’s attempt to bribe Mr. Anderson is some evidence of consciousness of guilt.

I didn’t find Laplante to be a truthful witness nor did his evidence, standing alone or in combination with that of his other witnesses, raise a reasonable doubt on the issue of whether he committed a robbery or had a weapon in his possession. [ 21 ] However, even after rejecting the evidence of the accused, I am required by the third prong of the WD analytic framework to ask myself whether, on the basis of the evidence I do accept, the Crown has proven the robbery beyond a reasonable doubt. [ 22 ] I am satisfied beyond a reasonable doubt that the accused and his friend Malik did barge their way into the complainant’s apartment.

On this issue I do accept the evidence of Mr. Anderson. Apart from the colour of Malik’s coat, Anderson gave a sufficiently good description of the accomplice to convince me that Malik was involved in an assault within the complainant’s apartment. He was not walking away from the complainant at the time of the confrontation as alleged by Laplante. I am also satisfied beyond a reasonable doubt that the accused assaulted Mr. Anderson. The accused admitted the assault and Mr. Anderson was credible about being thrown on his right side to the floor.

The dirt on his right shoulder and bruised right knee support his testimony. The Crown has established that Laplante is guilty on count 1 of the included offence of break and enter and commit assault. I am also satisfied beyond a reasonable doubt that he threatened to cause death to the complainant. I believe Mr. Anderson that the accused threatened to kill him. Laplante admits he threatened to break Anderson’s skull.

Because of these findings, the Crown has also established the accused’s guilt on counts 6 and 7, that is, failing to comply with two separate probation orders made by two judges to keep the peace and being of good behaviour. [ 23 ] Because of the inconsistencies in Anderson’s account of the alleged robbery and because of the lack of independent evidence supporting his account of the robbery, I am not persuaded beyond a reasonable doubt that the accused is guilty of a robbery. Count 2 alleging robbery is dismissed.

Count three alleging breach of probation by carrying or possessing a weapon is also dismissed. [ 24 ] In

summary, these are the verdicts on each of the counts in the information: Count 1- not guilty of break and enter and commit robbery with a firearm but guilty of the included offence of break and enter and commit assault Count 2- not guilty of robbery while armed with a firearm Count 3 -not guilty of assault with a weapon but guilty of the included offence of simple assault Count 4- guilty of threaten death Count 5- not guilty of possession of a hand gun while prohibited Count 6 – guilty of breaching Justice Nakatsuru’s probation order to keep the peace and be of good behaviour Count 7 -guilty of breaching Justice Pringle’s probation order to keep the peace and be of good behaviour Count 8- not guilty of breaching Justice Pringle’s probation order to not carry or possess any weapons as defined by the Criminal Code .

Released: August 28, 2012 Justice T. Lipson