R. v. Escoffery, 2015 ONCJ 428

Citation: R. v. Escoffery , 2015 ONCJ 428 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WILLIAM ESCOFFERY Before Justice D.P. Cole Heard on March 10, May 27, July 9, 2015 Reasons for Judgment released on July 30, 2015 M. Wilson ................................................................................................ counsel for the Crown V. Scaramuzza ....................................................... counsel for the accused William Escoffery COLE J.: [ 1 ] Mr.

Escoffery stands charged with four offences, all allegedly arising out of a robbery at a mobile telephone store on Albion Road in Toronto on June 21, 2013. Those offences are: 1. Using an imitation firearm while committing robbery; 2. Robbing Hitesh Sethi, the sole employee present at the time; 3. Conspiring with Jeffrey Fofie to commit the offence of robbery; 4. Having his face masked during the commission of the robbery . [ 2 ] I entirely agree with defence counsel that, if the evidence of Mr. Sethi were the only evidence against Mr.

Escoffery, it would amount to a significant error in law to use his evidence as a reasoned basis for a finding that Mr. Escoffery was one of the two people who robbed him. Though I think Mr. Sethi was an honest witness who tried his best to assist the court, it is clear that the disguises worn by the two robbers were so complete that Mr. Sethi could in fact describe very little about them. For example, while other evidence disclosed that Mr. Escoffery and Mr. Fofie are both black, Mr. Sethi testified that he could not see the skin colour of either of the perpetrators.

Though both of them spoke to him briefly during the course of the robbery, he could not be clear what “accent” the robbers used; for him, Nigerian, Somali, and Jamaican are all “African” languages. [ 3 ] Furthermore, it is obvious that Mr. Sethi was extremely shocked by what was happening to him by the fact of being robbed. Thus, as properly pointed out by defence counsel, when comparing his viva voce evidence with what the store’s video cameras revealed (Exhibit 4), it seems clear that Mr.

Sethi confused which robber held the pistol and which one had which colour gloves; as well, he gave the police somewhat confusing descriptions of the heights and weights of the two robbers. [ 4 ] In sum, Mr. Sethi could not adequately identify his assailants and, as I have previously said, any finding of guilt based solely on his evidence would be improper. Having said this, there are in my judgment certain other portions of his evidence that do assist me in this case. [ 5 ] Most importantly, Mr.

Sethi did say that as the robbers left the store he called 911 as soon as he was able to extricate himself from some tape which one of the robbers had applied to his hands. Additionally, as he came out of the “back room” where he had been detained by the robbers, he could see them on Albion Road immediately outside the store, each carrying a plastic garbage bag containing stolen phones. Those bags were later seized by the police and entered as exhibits in this trial.

[ 6 ] Officer Keith McBride testified that he was driving his “stealth”/”ghost” patrol car quite close to the phone store when he received a “hotshot” call reporting the robbery. As he pulled up outside the store he could see two males outside the store. One was carrying a black knapsack and both were carrying garbage bags. Officer McBride’s car was equipped with a video camera, and the video of what he saw was played in court (Exhibit 11). [ 7 ] Officer McBride got out of his vehicle and told the two men not to move.

In the brief few seconds before they began to flee he noted the following descriptions: #1 was a male black, approximately 6’ tall, weighing approximately 200 lb. He was wearing a black sweater and pants, a black winter hat and a ski mask; #2 was also a male black, approximately 5’ 10” tall. Officer McBride described him a “much skinnier” than #1. He was wearing a grey hoodie, dark pants, a black hat and he had a blue bandanna covering all or part of his face. [ 8 ] Officer McBride chased the two robbers down an alleyway adjacent to the phone store.

As they reached a more open area at the end of the alleyway they separated but continued to run. Both jumped over fences into a residential area. Instead of climbing the fence in pursuit Officer McBride notified his dispatcher as to what he had seen, gave brief descriptions of the men he was pursuing, and told the dispatcher of their last known direction of travel. [ 9 ] At some point P.C. Maloney joined Officer McBride. They walked together into the residential area on the other side of the fence. At some point a civilian approached the officers and told them he had seen “them” on one of the streets.

He gave the officers a lift in his vehicle to that place. As they arrived, Officer McBride testified that he could see Officers Davis and Pak detaining a man dressed in black. Officer McBride used his handcuffs to restrain this male, whom he identified as the first male he had seen outside the phone store. This male was dressed in black and was wearing a black ski mask. As the male was lifted to his feet, he was found to be lying on a black toque or hat. Importantly, he was not found to be in possession of any car keys.

Obviously, this was the man described by Officer McBride as “robber #1”. [ 10 ] From the evidence of Mr.

Sethi as to what he had seen of the two men outside the store, and the evidence of Officer McBride as to what he saw upon arrival on scene (supplemented by the police car video – Exhibit 11), I am entirely satisfied that the two men Officer McBride chased down the alleyway and across the open area until they climbed the fences were the two men who had robbed the mobile phone store. [ 11 ] While the other robber was able to escape detection in the minutes following the robbery, it is an agreed fact between counsel (Exhibit 13) that the man in black who was arrested was Jeffrey Fofie,.

Upon being interviewed by officers from the Toronto Police Holdup Squad, Mr. Fofie said that he had travelled to the area of the phone store with his friend “William”, and that the black vehicle had been parked on a street near the location of the robbery. Even though it later emerged that Mr. Fofie obviously knew Mr. Escoffery’s name, he declined to provide the police with any further identifiers. The police checked the area around 7:30 p.m. that evening and located a black 4-door Mazda 3 vehicle quite near to the robbery scene. Investigative checks revealed that this vehicle was owned by Mr.

Escoffery’s father, and that Mr. William Escoffery had himself been stopped by police operating that vehicle some 11 months previously. [ 12 ] Apart from these two snippets of information provided by Mr. Fofie – that he had arrived at the scene in a black 4-door vehicle and that this vehicle had been driven there by his friend “William”- obviously the fact that Mr. Escoffery had been found operating his father’s vehicle many months previously is not proof of very much about this robbery.

However, it is a further agreed fact that at approximately 9:20 p.m. that evening officers surveilling the Mazda observed the vehicle’s lights activate and a black male (later identified as Mr. William Escoffery) ride by on a bicycle. Some 5 minutes later Mr. Escoffery walked up to the vehicle, entered the driver’s seat and closed the driver’s door, whereupon the police surrounded the vehicle, and Mr. Escoffery was soon arrested. [ 13 ] In his evidence in chief Mr. Fofie admitted that he was one of the robbers of the mobile phone store on June 21, 2013, and he named his friend Mr. Escoffery as his co-perpetrator.

He said that he had pleaded guilty to offences arising from his

part in the robbery and was now serving sentence. [ 14 ] Mr. Scaramuzza skilfully used

(1) Mr. Fofie’s interview with the Holdup Squad officers (2) his evidence in chief at this trial and (3) what he said in cross-examination to point out numerous contradictions and inconsistencies in what he said. In his submissions to me Mr. Scaramuzza said that if I were sitting as a judge instructing a jury, I would be required to give the jury a “ Vetrovic ” warning regarding the dangers of convicting on the basis of the evidence of an unsavoury witness. For his part, Mr. Wilson for the Crown agreed that I should caution myself with a “ Vetrovic ” warning regarding Mr.

Fofie’s evidence. [ 15 ] I am largely in agreement with counsel on this issue. It is obvious that in numerous ways and at numerous stages Mr. Fofie was either completely untruthful or attempted to mislead, or was conveniently forgetful. Mr. Scaramuzza decimated large portions of his evidence. Without going into all of the contradictions, let me isolate some of the more important ones. I have already referred to the fact that Mr. Fofie attempted to mislead the Holdup officers by claiming that he only knew the first name of the man he claimed was his co- perpetrator, when it is obvious that he had known Mr.

Escoffery for some years, that they were neighbours, that they had been exchanging telephone calls and text messages on previous days and that morning, and that he was fully aware of Mr. Escoffery’s nickname. Further, Mr. Fofie claimed that he did not know that there was any plan to do this robbery, that they did not take steps to prepare the disguises and equipment necessary to do the robbery, that the decision to commit the robbery was spontaneous, that he didn’t know a gun was to be used to threaten any employee working in the store, and that the first time he saw the gun was when Mr.

Escoffery revealed that he had it in the store. All of this is patent nonsense. It does not equate with logic, nor with other pieces of more objective evidence, particularly the various videos and Mr. Sethi’s evidence. [ 16 ] If Mr. Fofie’s evidence was the only evidence against Mr. Escoffery, I would have great difficulty being satisfied beyond a reasonable doubt of Mr. Escoffery’s guilt, despite, as Mr. Wilson fairly argues, Mr. Fofie has nothing to gain – and perhaps something to

lose – from naming Mr. Escoffery at this stage in his sentence. [ 17 ] The remaining police evidence adduced during the Crown case consisted of evidence of various seizures made by officers during searches of the black Mazda vehicle and Mr. Escoffery’s residence, and evidence derived from some of these seizures. Though necessary to fill in some gaps, I do not consider that there would be much point in reviewing it in detail. [ 18 ] This then completed the Crown case. [ 19 ] Mr. Escoffery testified as the first witness on his own behalf. He told the court that he has no previous record.

Because of his bail conditions he now lives in Brampton. Prior to that he lived with his parents, three brothers and two sisters in Toronto. He had graduated from a pre-service firefighting class in June 2013, and was apparently waiting to hear if he had been successful in obtaining a firefighting position, his chosen profession. While waiting to hear further, he obtained a contract position at Campbell Soup from July 2013 (when he was released on bail) until May 2014, when the contract ended. He then worked for U-Haul for some months.

Unfortunately, he was injured in a motorcycle accident in late 2014 and is unable to work until his injury has fully healed. If a firefighter position is not available, he hopes to become a TTC driver. [ 20 ] He testified that he has known Mr. Fofie for some years. He knows Mr. Fofie more commonly by his nickname of “Chubbz”, a name perhaps reflecting the fact that he knows Mr. Fofie to be somewhat taller and considerably more muscular than he is. [ 21 ] I pause here to note that this is consistent with what Officer McBride testified to. If, as seems quite obvious, Mr.

Fofie was the man dressed all in black (identified by Officer McBride as #1), this man was taller and heavier than the second robber. [ 22 ] Mr. Escoffery testified that he had agreed sometime before June 21 that he would drive Mr. Fofie to this particular phone store as Mr. Fofie wanted to buy a new phone. According to Mr. Escoffery, Mr. Fofie asked him to bring some latex gloves with him; Mr. Escoffery inferred that Mr. Fofie wanted to use these gloves to conduct a purchase of some marijuana. [ 23 ] Mr. Escoffery testified that, when he realized that Mr.

Fofie was not going to purchase a phone at this store, he decided that, while he was content to leave Mr. Fofie in possession of his car, he was not at all interested in getting involved in Mr. Fofie’s drug purchase. He testified that he decided instead to visit Ms Kianna Miller, a young woman of his brief acquaintance, who lived in the same neighbourhood. He testified that he went to her place, that he spent approximately an hour chatting with her in her living room.

He said that when he left Ms Miller’s place around 12:00 noon, he walked to where he had parked his father’s car, but when he saw lots of police surrounding it, he walked away because (and I am paraphrasing what he said) “he had had bad experiences with the police in the past and did not want to be harassed”. He said that he walked home. Later in the day he spoke with his friends “JR” and “Rick”, one of whom asked him for a ride to a motel in Mississauga, which he agreed to do.

He thus rode his brother’s bicycle to where the car was located, opened the doors (and flashed the lights) using the remote opener, but that because of his fears of the police he rode away, returning a few minutes later, whereupon, as previously discussed, he was arrested at gunpoint. [ 24 ] Towards the end of his examination in chief Mr. Escoffery denied that he had planned or participated in the robbery of the phone store, and denied that he was chased by the police down the alleyway and over a fence. [ 25 ] No doubt in anticipation of cross-examination about to be conducted by Crown counsel, Mr.

Escoffery was asked to explain the meaning of some text messages passing between himself and Mr. Fofie on the morning of June 21 (Exhibit 8), starting at 9:30 a.m. Mr. Scaramuzza particularly drew Mr. Escoffery’s attention to his reply to Mr. Fofie’s comment that: “We should be there now you know…scoping the area but soft”. Mr. Escoffery explained that his response of “soft t[h]ings…already know the area” had nothing to do with guns (I am comfortable taking judicial notice of the fact that in this part of Toronto a “ting” or a “thing” is often street jargon for a gun). Mr.

Escoffery stated that all he meant by this reply was to reassure Mr. Fofie that there was no need to hurry because the phone store was nearby. (From other evidence it seemed that the store was a 4-5 minute drive by car from the neighbourhood where both resided). He reiterated that it was his understanding that Mr. Fofie needed to buy a new mobile phone as he was “starting to sell weed again”. Mr. Escoffery said that he neither used nor sold “weed”. [ 26 ] In cross-examination it was put to Mr. Escoffery that while there were numerous texts passing between himself and Mr.

Fofie on June 21, and that while there were daily texts between himself and Ms Miller on previous days in June 2013, Mr. Escoffery conceded that he could not explain why there were no texts between himself and Ms Miller that morning. He said that he had spoken on the phone with Ms Miller on June 20 to confirm that he would be coming to her place around 9:30 a.m. on June 21, so there would have been no need for him to call or text her that morning, even to confirm that he would be coming. [ 27 ] On this point I should add that Mr.

Escoffery denied that he had contacted Ms Miller on several occasions after his release on bail to try to persuade her to provide him with a false alibi. While he agreed there was contact between them, on his version he wanted her to assist him by providing a true alibi explaining that he was visiting her at her place during the time the robbery had occurred. [ 28 ] A considerable amount of evidence was heard in both the Crown and defence cases about some packaging for a pellet gun and some BBs found in the black Mazda on the night Mr. Escoffery was arrested.

On the Crown theory of the case this evidence went some way to establishing that Mr. Escoffery was the robber who entered the phone store in possession of an imitation firearm, which was partially shown to – but not brandished at - Mr. Sethi. [ 29 ] Mr. Escoffery testified in chief that he has never owned or possessed any kind of pellet gun. He explained the presence of the packaging in the trunk of the car by indicating that he had seen (and touched the packaging) before because he had gone with his friend Rick Parris to a flea market in the summer of 2012 to assist Mr. Parris to buy a pellet gun and ammunition.

In cross-examination he said that he had simply forgotten that the packaging was still in the vehicle. I pause in the narrative to indicate that I found that portion of his evidence to be quite inconsistent for someone who claims that he was routinely harassed by the police; one would have thought that the last thing he would want to have in that vehicle for over a year was anything that might suggest he was in possession of anything remotely close to being some sort of firearm. I disbelieve Mr. Escoffery’s evidence on this point.

I think that he knew full well that packaging was in the vehicle and that he knew that he would need to explain its presence to this court.

[30] No doubt this was the main reason Rick Parris was called as a defence witness. Though Mr. Escoffery accompanied him tothe flea market when he purchased the pellet gun (and ammunition), Mr. Parris the pellet gun was his. He explained that he and Mr.Escoffery opened the packaging and left it (and some BBs) in the trunk of Mr. Escoffery’s vehicle because “he didn’t want someone inmy house to see it….I bought it for protection because I live in a bad area and I need it for protection”. In support of the defence theorythat Mr.

Fofie must have committed the robbery with some other unknown person, he went to the extent of saying that Mr. Fofie knewhe had the pellet gun because he had shown it to Fofie. In cross-examination he couldn’t recall the make of the pellet gun, nor could heoffer any explanation why, if he had handled it, his prints were not on it when the packaging was forensically examined by the police.Regrettably I find that Mr. Parris’ evidence was largely contrived in a rather pathetic and amateurish attempt to assist his friend. [31] When the Crown case was concluded Ms Miller was called in reply by the Crown.

Though she knew Mr. Escoffery andconceded that she was involved in some flirtatious behaviour with him, she was adamant that Mr. Escoffery was not at her house on themorning of June 21, that he had never been at her house, and that she had in fact been careful not to give him her exact address, as she”didn’t know him”. On the one occasion where he dropped her off nearby, she told him only that she lived “at Islington/Albion”. [32] One further piece of Ms Miller’s evidence in chief is relevant to my determination of this case. Mr.

Escoffery had providedcertain details in support of his position that he had been at Ms Miller’s house that morning. Ms Miller disputed that her front door hadever been white; her evidence was that it had always been brown. She further stated, contrary to Mr. Escoffery’s assertion, that thekitchen is not located to the left as one enters the home. [33] Ms Miller told Crown counsel that sometime later in the summer she received a text from Mr. Escoffery in which heindicated that he would like to “hang out with” her, but that she would have to visit him because he was “on house arrest”.

She testifiedthat on hearing this she decided she didn’t want to have anything to do with anyone in that position, and she told him that. A couple ofmonths later he messaged her and told her that the reference to “house arrest” was just a joke. She testified that she told Mr. Escofferythat making a joke like that was indicative of the fact that he was “an idiot” and that they “were done”. Early in 2015 she received a textfrom Mr. Escoffery inquiring whether there was any “bad blood” between them; she replied that this was not the case but that she didn’twant to have anything further to do with him. [34] Mr.

Scaramuzza put to Ms Miller that when she was initially contacted about this case by the police she denied knowing Mr.Escoffery either by his actual name or by his nickname of Mario. She agreed, but explained that she simply did not – and does not – wishto be involved in any way in this prosecution. While I agree that this was not totally honest, it is perhaps explicable for a 20 year-old whobarely knows the accused. Mr. Scaramuzza further put to MS Miller that while there were lots of texts between herself and Mr.

Escofferyfrom July 17, 2013 onwards through the fall of 2013, none of those texts makes any reference to him being on “house arrest”. MsMiller’s response was that some of the text messages must have been missing. With this I tend to agree; my careful reading of Exhibit 23strongly suggests to me that there are some conversations missing, because at some points she references that and other subjects. (Let mesay immediately that I do not at all mean to suggest that Mr. Scaramuzza has had anything to do with the absence of some of the texts.Mr. Scaramuzza is a well-respected member of the bar.

I shall be charitable to his client and just leave it that perhaps his client wasunable to find all of the relevant text messages). [35] This then completed the evidence presented. I now turn to counsel’s submissions. [36] Applying the first branch of the D.( W.) analysis defence counsel submitted that I should accept Mr. Escoffery’s evidencethat he had nothing to do with this robbery. In addition to the points I have previously summarized regarding the inability of Mr.

Sethi topositively identify either of the robbers, he indicated that his client’s evidence was clear that the other civilians who testified for theCrown – Mr. Fofie and Ms Miller – should not be believed because they had – and perhaps have – other agendas. He pointed out a fewother elements as to why I should believe his client, most particularly that his DNA was not found on any of the gloves seized by thepolice, and that no prints were found on any of the garbage bags. [37] Regrettably for Mr.

Escoffery I have absolutely no difficulty rejecting his evidence in its entirety, except to the extent that itis corroborated by other evidence. As Crown counsel pithily put it in his submission, there are several circumstantial pieces of evidencethat, taken cumulatively, establish a clear chain – and, more importantly, a linkage – between this accused and the robbery committed.These include: [38] First, the place the black Mazda was parked – quite near, yet somewhat concealed, from the store. More importantly, it wasquite a distance away – likely several hundred feet - from Ms Miller’s residence.

To this I would add that Mr. Escoffery’s version that hejust drove Mr. Fofie to the area so that Mr. Fofie could conduct some sort of marijuana purchase, and that he left him his car for thatpurpose, is simply a fairy story, completely unworthy of belief. [39] Second, even though the words are those of Mr. Fofie, I find that both he and Mr. Escoffery knew exactly what they weretalking about when Mr. Fofie used the word “scoping the area but soft”, and Mr.

Escoffery replied “soft things” and “let me get my shit”.In my judgment this is clear evidence that this was a plan by these two men to rob this particular store. [40] Third, it is clear that Mr. Escoffery did not know Ms Miller’s address, that he had never been there, that he was not there onthat day, and that his attempts to have her provide an alibi were in my judgment both contrived and doomed to failure. I caution myself(per R. v. Witter (ON CA), [1996] O.J. No. 358 (Ont.

C.A.)) that there is in law a distinction to be drawn between analibi which is disbelieved or rejected (which has no evidentiary value), and one which is proven false (from which an inference ofconsciousness of guilt may be drawn). In this case I can and do make a negative inference about Mr. Escoffery’s credibility on this basis. [41] Fourth, I draw a negative inference both from the very fact the pellet gun packaging and some BBs were found in the trunk ofthe black Mazda, and that only Mr. Escoffery’s prints were found on that packaging, contrary to what should have logically flowed hadMr.

Parris’ evidence any ring of truth to it. [42] Finally, as pointed out by Crown counsel, I am prepared to find that Mr. Fofie requested, and Mr. Escoffery agreed, to bringgloves with him when they met, and that Mr. Fofie was the one who took the backpack from Mr. Escoffery’s car. In my judgment,contrary to Mr. Escoffery’s evidence, this is further evidence of both an agreement to commit this robbery, as well as irrefutable

evidence that Mr. Escoffery was a willing and active participant. [ 43 ] For these reasons, combined with my observations of Mr. Escoffery’s demeanour and logic as he gave his evidence, why I have no difficulty rejecting it. As the Irish writer Oscar Wilde sagely said over a century ago about the infamous “brides in the bath case”, there sometimes comes a point where coincidences crystallize into certainty. In my judgment this is exactly that kind of case. There are simply too many coincidences and other facts here that exclude a defence based on innocent intention. [ 44 ] Mr.

Scaramuzza made no argument on the second branch of the D. (W.) test. With this I entirely agree. While there are some cases where the evidence of an accused, though disbelieved, nevertheless raises a reasonable doubt, this is not one of them. [ 45 ] In D.(W.) the Supreme Court of Canada was entirely clear that despite the fact that an accused’s testimony is rejected, this does not end the matter. A judge must still be satisfied on the whole of the case that the Crown has discharged its burden of proving the case beyond a reasonable doubt. While there are some pieces of evidence – such as that of Mr.

Sethi and Mr. Fofie – that, by themselves would not allow me to feel comfortable in making a finding of guilt, nevertheless, having carefully reviewed all of the evidence I am so satisfied. The chain of evidence is ineluctable. The accused is found guilty of all four offences charged. [ 46 ] I will now remand this case pending preparation of a Pre-Sentence Report, and, if Mr. Sethi wishes to prepare one, a Victim Impact Statement. [ 47 ] When the matter comes back for sentence, I would like the guidance of counsel on two points.

First, I would like counsel’s views as to whether the Kienapple principle applies to any of the counts in the information – my preliminary thinking is that it does not, but I would like to hear argument on point. Second, as I must concern myself with parity and proportionality, I would like accurate information as to the sentence (including pre-sentence custody) Mr. Fofie received, as some of the things he said about the sentence he is serving do not seem to make much sense. [ 48 ] I wish to thank counsel for their excellent presentation of this case. Released: July 30, 2015 Signed: “Justice D.P. Cole”