R. v. F.(P.), 2011 ONCJ 809

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. F.(P.) , 2011 ONCJ 809 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 — P. F. & J. N., young persons Before Justice Dianne M. Nicholas Reasons for Judgment released on September 21, 2011 Ms. L. Tansey-Miller............................................................................................... for the Crown Mr. D. Anber...................................................................................... counsel for the accused P. F. Mr. J.

Bahimanga............................................................................... counsel for the accused J. N. Nicholas J.:

[ 1 ] These youth are charged with robbing K. G. H. with a knife contrary to 344 (1) of the Criminal Code and attempting to steal from M. R.-G. with a knife contrary to s. 463 (

a) of the Code . They were originally charged with other youth for other charges stemming from these incidents. A motion for directed verdict was decided on April 13, 2011. As a result, with respect to P. F., counts 1, 5, and 7 were dismissed and count 4 was withdrawn. With respect to J. N., count 1 was dismissed and count 4 was withdrawn. Co-accused A. M. pled guilty to a count of robbery against K. G. H. and was sentenced to 4 months of deferred custody followed by probation. I have reviewed the transcripts and the written submissions of counsel.

It is not my intention to summarize all of the evidence as many charges have been withdrawn or dismissed, and one co-accused (A. M.) has entered a plea. [ 2 ] I will deal briefly with the motion for directed verdict of April 2011. Written and oral submissions were provided. The test to be applied is well summarized by counsel and is rather trite law, namely whether the evidence presented by the Crown could reasonably support a finding of guilt. It was the view of the Crown that permissible inferences were available to the prosecution in this case. The test is whether those inferences were logical and reasonable.

Crown properly exercised her discretion by withdrawing the conspiracy charges on the date of the motion. In addition, Crown witness S. H. who cooperated with police was not charged but played a significant role on that evening. He appeared to me to be the directing mind and certainly provided the vehicle. His credibility could not be considered on the motion. S. H. implicated J. N. in the robbery of P. N. by saying that he had admitted to “beating the Asian guy” during the robbery. [ 3 ] Crown accurately submits that “the evening is dedicated to robbing people.” There was a courtroom identification of P. F. by K.

G. H. There was some evidence of the presence of these accused at the scene of the robberies. There was some evidence that everyone was pretending to have a knife. There is evidence that a “black male” with a knife approaches K. G. H. first, to be followed by 3 or 4 others. K. G. H. believed that P. F. was the Lebanese person there but was not sure. There is some evidence that P. F. and J. N. were outside of the vehicle at some point during the incident involving M. R.-G. and K. G. H. With respect to the robbery of P.

N., he did not identify anyone and was uncertain as to the skin color of the person who attacked him. In addition, he testified that one person did not get involved at all. Hassan implicated J. N. somewhat but does not implicate P. F. directly and gave evidence that J. N. showed him some “stuff”. I concluded that there was a complete absence of evidence on the required elements of the offence for a conspiracy charge. The evidence of M. R.-G. refers to “a white one” to the side of the black guy with the knife. Neither J. N. nor P. F. would be described as white. P.

F. however would meet the description of “not quite black, not quite white”. After hearing argument many charges were dismissed or withdrawn. [ 4 ] There remain two accused before me. Each faces a charge of robbery against K. G. H. by stealing while armed with a knife, as well as a charge of attempting to steal from M. R.-G. while armed with an offensive weapon, namely a knife contrary to

section 463 (

d) of the Code , J. N remains charged with the robbery of P. N. However, in her written submissions, the Crown concedes that the charge has not been proven beyond a reasonable doubt and J. N. is hereby found not guilty of that offence. P. F. remains charged with a count of breach of undertaking by being away from his residence. [ 5 ] I must determine the role played by P. F. and J. N. in the robbery of K. G. H. and M. R.-G. It is not disputed that they had been present in the car being driven by S. H. However, P. F. denies participating or acting as a party to the offence. With respect to J.

N., his counsel submits that the evidence discloses that one guy cut off P. N. and hit him in the head and face and told him to empty his pockets. He also suggests that there is no evidence that the person was J. N. with respect to the robbery involving the two complainants K. G. H. and M. R.-G. The credibility of the Crown witnesses are challenged, as well as the fact that these two victims have been discussing their evidence together prior to the commencement of trial. THE ROBBERY OF K. G. H. and M. R.-G. [ 6 ] There is no question that these two young men were the subject of a robbery involving several youth.

The evidence discloses that both P. F. and J. N. were present with the group driving around in the vehicle of S. H. The issues to be resolved are the role, if any, they played alone or as parties and if the Crown has proven their guilt beyond a reasonable doubt. That evening, as M. R.-G. was walking with K. G. H., a Honda Accord stopped and four people got out and came at them with knives telling them to hand over money or objects. He was in shock and did not really understand English well. He did not have a strong independent recollection as was often directed to his statement by the Crown.

They were all taller than him. One was his age and wore a long white sweater, low black jeans and looked the same age as him. He also recalled there was “another black with a toque, who looked a bit older, with a knife,” who was saying in English “not to do stupid things” or else he could stab them. That person was 17-20 years of age and was holding a knife. He could also see one person in the back with a knife. There was also a shorter one, about his height of 5’ 8” or 9”, who was darker in skin colour and facing him. That person wore a leather jacket that was reflecting the light a bit.

There was also a person, a not white or black darker man, that had black hair. He could not describe the 4 th person. He did recall that four people got out of the car but he could not tell who the driver was. He had originally reported five people to police, including one white guy. He describes the group as one Lebanese, three blacks and one white male. He recalls seeing two knives and could not believe this was happening to him. To him, each one of them was “pretending” to have a knife. They took the coat and hat of K. G. H. and asked him to remove his shoes.

He did his best to recall but stated that it all happened very fast and he was “frozen” at what was happening to him, which is understandable. He describes himself as a witness to the robbery of his friend as opposed to a victim. He agreed that he and his friend discussed their recollection after the event to “clarify” exactly the beginning and the end. It is fair to state that his attention was focused on the black person threatening them with a knife. [ 7 ] The evidence of K. G. H. was fairly similar. A car passed them and a group got out and threatened them with a knife. He

saw four or five males exit the Accord. He and his friend were asked to hand over belongings. His coat was taken and it is the coat recovered. It was difficult for the Crown to obtain answers from these two complainants independently of their written statements. He accurately described A. M. who has entered a plea. He described a Lebanese person as 5’ 4”, with a black coat with grey on the shoulders and short black hair. He saw this person exit the car. He did a dock identification of P. F. as that person but agreed that he was not certain. That type of identification has little evidentiary value.

He was not sure if any of the other accused in the courtroom were present that night. He only knows that the other two were black. One black man had a knife, was lean, had a black toque and was 17-20. This was the one that came to him first. He also recalls being told that he would be stabbed if he did anything stupid. In cross- examination it became clear that he first noticed a group of three and was able to give some description of them but only described the 4 th and 5 th to exit the car as black males. He described these last two as being near the rear of the car. He only saw the first male with a knife.

He also admitted that he and his friend had discussed their recollections before testifying. Although this is understood as a rather normal thing, it may have affected their testimony. THE ROBBERY OF P. N. [ 8 ] P. N. was approached by a group of guys walking towards him. As he tried to go around them, one of them cut him off, hit him in the head and told him to empty his pockets. He handed over a few things like a cell phone and a wallet. The others did not do anything. He did not get a real good look at the person who hit him and he did lose his glasses in the attack.

He describes the person as having “skinny legs” which stood out. He was not completely sure of the skin colour of the person. Cards taken from his wallet were recovered. [ 9 ] As for the evidence of S. H., I found this witness to be extremely problematic. He describes himself as an accessory who just picked people up and drove them to a place where they robbed people. This group included P. F. and J. N. He was arrested that night when he drove home and, at his father’s insistence, went immediately to the police station where he incriminated everyone but himself and A. M.

Early on, it became evident to me that this brash young man was spinning a tale that defied belief. I watched P. F. rolling his eyes as this guy sold him out. Early on it became apparent to me that he had no credibility whatsoever. I made several notes as to his bravado and utter lack of credibility. I will not bother to summarize his evidence which I reject completely. This is a young man who cut a deal and now had to deliver. His entire story was nonsensical if that is the word, if not, it is hard to find a word that describes his contemptuous attitude, demeanour and lack of candour.

Of course he was far more than just a driver; I believe that he was in fact the leader. He had the car; and he was dropping off those who had done his bidding. [ 10 ] The accused P. F. testified. He has acknowledged the existence of a recognizance which required him not to be away from his surety at the time these offences took place. He said that he did not follow the recognizance because he was trying to make new friends in Ottawa. That does not provide him with a defence and he will be convicted of the charge of breach of recognizance. He admits that he was present, along with his co-accused J. N. when P.

N. was robbed by R. T., a co-accused who did not appear at this trial. He says that he was shocked but about 15 feet away. He was scared and ran towards Montreal Rd. R. T. would have called S. H., and advised him of the “take.” Of course, S. H. came and picked them up. P. F. describes S. H. as the ringleader and the one calling the shots. It is fair to say that P. F. cast a lot of blame on R. T., the accused who was a no-show for the trial. That makes it difficult for his evidence to be contradicted. He was not believable when he testified that he did not know what his other co-accused A. M. and J. N. were doing.

He was not that convincing when he told us that he did not have any conversations with the others. His statement that he felt bad for those involved and regretted having been there “because it made me look like I was a part of it” was rather odd. He denies having had a knife on him at any point. He only recalls watching what occurred. I highly doubt that.

He was equally lacking in credibility when he testified that he did not know how to get home as a justification for staying with the group after the criminal activity. [ 11 ] He does admit to exiting the car for the robbery but said that he was scared and felt pressured. He describes S. H. and R. T. as chasing the two victims and saying “let’s get them”. He was trying to be friends with them and to fit in. He described coming across the two victims as “opportunity knocks” and that they “looked like good candidates” although it was not his choice.

My impressions of him as a witness was that he came clean at some moments and made a fairly good impression but other parts of his evidence were not believable. I do not reject his entire evidence and portions of it were very credible, others less so or not at all. [ 12 ] Lastly the accused, J. N. also testified. He knew S. H. and A. M. prior to these events but not P .F. or R. T. They all met up together. He was with P. F. and R. T. He claims that R. T. robbed P. N. and that he and P. F. saw it all but ran.

They had talked about it beforehand and “it’s like he kind of just did it.” He was not paying much attention because he was running. They ran into a residence when they heard sirens. He saw R. T. pull out the cell phone and other belongings of P. N. He agreed to stay with them, supposedly to get a ride home from S. H. who was coming. He was also present in the car later when R. T. tried to use the credit card stolen from the robbery of P. N. Before the second robbery, he saw S. H. in possession of the knife and a screwdriver. Soon the plan was hatched to rob two guys getting off the bus.

Despite this knowledge he remained with the group. His evidence is that he told them that he was not going to do anything and that he did not want to take

part in it. Under pressure from S. H. he testified that he got out and stood by the car, nothing more. I did not find this particularly believable. He did testify that he saw it but kept to himself. He then got a drive home. Consistent with the evidence of P. F., he also describes S. H. as the ringleader and driving force for the attack on the two males. He does not incriminate P. F. other than by being present. Although present, he denies any participation in any criminal activity. As with P.

F., he cannot provide a reasonable or believable explanation for his continued presence with the group after the robberies. As with the others, he describes S. H. as the ringleader. This may well be true. His evidence does not entitle him to an acquittal on the first part of the W. D. test. [ 13 ] I have reviewed each of the written submissions and thank counsel for their excellent work during the course of this trial and in their written submissions. Crown counsel has described in detail the law with respect to parties and the issue of wilful blindness. Given my findings with respect to the evidence of P.

F. and J. N., that issue is a live one. I have no difficulty in concluding that their evidence is not sufficient to acquit either of them on the first part of the W. D. test. I agree with the admitted and uncontested facts described at paragraphs 23-29 of the Crown’s submissions and with her conclusion as to the complete lack of credibility of S. H. I also agree with the Crown’s description of the credibility of the two victims M. R.-G. and K. G. H. Nonetheless, their identification evidence was very weak and the dock identification of P. F. is given no weight.

I agree with the Crown’s assessment of the credibility of J. N. I accept her

submission that portions of his “story” were not believable. There were many opportunities to split from the pack that he simply did not take. He could not provide a believable explanation for getting out of the car. I also agree with her that P. F. was a better witness and, at times, quite believable. His credibility fluctuated during his evidence. Admittedly, P. F.’s continued presence with the group is also problematic as he had many opportunities to leave. I accept the Crown submissions with respect to their wilful blindness.

The mere fact of exiting the car does not necessarily make them a party to the robberies of the two young men. [ 14 ] Counsel for P. F. appropriately relies on all three elements of the W. D. test. It is true that the majority of the evidence points to R. T. as the assailant with the knife. A. M. who has admitted his guilt in the robbery also played a direct role. The role of the remaining accused, however, is still a bit of mystery because their evidence is not entirely accepted nor rejected. S. H. was untruthful and lacked credibility as submitted by counsel for P. F.

The identification evidence of the complainants against P. F. was weak and his evidence cannot be completely set aside. I am persuaded by the submission of Mr. Anber that the Crown has failed to prove the robbery case against his client as is required by the third

part in the W. D. test. He will, however, be convicted of the breach of his undertaking. [ 15 ] With respect to J. N., Crown is not seeking a conviction on count 5 and he will therefore be acquitted of the robbery of P. N. With respect to the attempted robbery of K. G. H. and the robbery of M. R.-G., I agree with certain of the Crown’s submissions. These were honest witnesses who admitted to jointly recollecting the events together. They appeared traumatized by what happened to them and doing their very best to recall.

The weakness in their evidence lies not in their credibility but the lack of acceptable descriptions or identification of their assailants. They were victimized as they say they were. This is not a case of what happened but rather of who did what. Unfortunately, many questions remain. I agree with the characterization of J. N.’s counsel as to S. H. and with the inconsistencies he pointed out in the evidence of M. R.-G and K. G. H. I agree with defence counsel that the evidence led by the Crown is lacking with respect to the identity and role of the persons present.

That makes it difficult to make findings of fact as to their respective involvement, even as parties. Regardless of wilful blindness, which I do not believe is what actually was going on, mere presence is not enough in this case to convict these youth of the robberies. J. N. was not a very good witness and his evidence does not lead to a doubt on the first or second parts of W. D.

Nonetheless, I am left with a doubt that the Crown has proven his guilt beyond a reasonable doubt. [ 16 ] This decision is not based on any lack of credibility on the part of the complainants but rather on a lack of factual grounding for a conviction. Crown has abandoned its prosecution on the robbery of P. N. For the same reasons I draw the same conclusions on the two remaining charges against him. He will be found not guilty. Released: September 21, 2011 _________________________________ Signed: “Justice Dianne M. Nicholas”