R. v. Paroski, 2019 ONCJ 1011

ONTARIO COURT OF JUSTICE CITATION: R. v. Paroski , 2019 ONCJ 1011 DATE: 2019 05 17 COURT FILE No.: Toronto Region – College Park Information No. 18-75004636 BETWEEN: HER MAJESTY THE QUEEN — AND — MARC JORDAN PAROSKI Before Justice M. Wong Heard on April 1, 2, 3,4 and 30, 2019 Reasons for Judgment released on May 17, 2019 G. Ho...................................................................................................... counsel for the Crown P.

Genua.................................................................. counsel for the accused Marc Paroski Wong, J.: [ 1 ] The five-inch scar extending from Christopher Phillips’ cheekbone to his mouth is a constant reminder that on August 9, 2018, a stranger slashed him with a knife. [ 2 ] The Crown alleges Marc Paroski is the perpetrator. He is charged with aggravated assault, assault with a weapon, and fail to comply with probation (2x). [ 3 ] Mr. Paroski elected to have his trial before this Court. The Court heard from eleven Crown witnesses and saw dozens of video clips. The Defence called no evidence. I.

Issues: [ 4 ] The only issue is identity. [ 5 ] The Crown submits there is both direct and circumstantial evidence, which should leave the Court with no reasonable doubt that Mr. Paroski is the person who knifed Mr. Phillips. [ 6 ] The Defence submits there are two parts to the question of identity. Mr. Genua counsel for Mr. Paroski fairly concedes that the totality of the evidence establishes that the defendant was speaking to the victim just prior to the attack and that Mr. Paroski changed his clothing immediately after the incident.

However, counsel argues the Court should have a reasonable doubt about who slashed Mr. Phillips because of an alternative suspect. II. Admissions:

[ 7 ] The following admissions [1] helped to focus the analysis:

(1) On August 9, 2018, at 8:19 am, Christopher Phillips was slashed once by someone with a knife on the left side of his face, while he stood outside a men’s shelter at 135 Sherbourne Street;

(2) Mr. Phillips was rushed to the hospital where he received 42 stitches to close the wound. This injury meets the definition of wounding, maiming, disfigurement or endangerment of life as defined under subsection 268(1) of the Criminal Code ;

(3) Mr. Paroski’s DNA was found on a pair of brown pants [2] that police seized on August 9, 2018;

(4) On August 17, 2018, Mr. Paroski was arrested on a TTC bus and a knife was found that had the victim’s DNA on the cutting- edge blade of the knife [3] ;

(5) On August 9, 2018, Mr. Paroski was bound by two probation orders: December 2, 2016 and August 29, 2016 each with a condition that he not possess any weapons [4] . [ 8 ] The Crown relies on both direct and circumstantial evidence to prove its case. III. Direct v. Circumstantial Evidence. [ 9 ] I am going to first explain to Mr.

Paroski the difference between direct and circumstantial evidence. [ 10 ] Direct evidence is evidence, which if believed, resolves a matter in issue. [5] Here is a very simple example: if the question is who took the bag of cookies from the kitchen, a witness may come forward and state, “I saw Mary take the cookies”. The witness’s testimony that he saw Mary take the cookies is direct evidence.

If I accept the witness’ testimony that he saw Mary take the cookies, then no inferences need be drawn. [ 11 ] Circumstantial evidence “is evidence that tends to prove a factual matter by proving other events or circumstances from which [either alone or in combination with other evidence] the occurrence of the matter in issue can be reasonably inferred.” Unlike direct evidence, circumstantial evidence requires inferences to be drawn before it is of use in resolving material issues. [6] So going back to the example of the stolen bag of cookies: if there are no witnesses who saw who took the cookies, how do we know for sure that Mary took the cookies?

Well, there maybe circumstantial evidence that leads to a reasonable inference that Mary took the cookies. First, a witness might come forward to say he saw Mary alone in the kitchen around the time when the cookies disappeared. Another witness might recall seeing Mary quickly leaving the kitchen, and that Mary had something hidden under her jacket. Someone else might remember seeing Mary throwing something in the garbage can. Lastly, inside the garbage an empty cookie bag is found and Mary’s fingerprints are on the bag.

In this example, the totality of the circumstantial evidence could leave the court with no reasonable doubt that only Mary stole the bag of cookies.

a) Direct Evidence of Christopher Phillips: [ 12 ] In this trial, Christopher Phillips provided direct evidence about who stabbed him. If I accept Mr. Phillips’ evidence, then I do not have to draw any inferences or make any assumptions about what happened. If I believe Mr. Phillips, then his testimony is evidence of who stabbed him. [ 13 ] Defence counsel does not challenge Mr. Phillips’ evidence regarding what he says happened on August 9, 2018 at 8:20 am:

(1) Mr. Phillips testified he was standing outside the men’s shelter having a cigarette and waiting for a friend to bring him back some breakfast;

(2) A man and a woman came up to him: the man was talking to Mr. Phillips, but his speech was rambling and incoherently. Mr. Phillips assumed the man was high on drugs;

(3) The only words Mr. Phillips could decipher was the man said his name was Polo;

(4) Mr. Phillips had seen “Polo” two or three times before in the neighbourhood, but he did not know him;

(5) He described “Polo” as male, Caucasian, 5’10” tall, slim build, looked to be about 32 years old, had facial hair and “very very bright blue eyes”. He wore a red bandana around his neck and wore a black baseball cap; (6) “Polo” showed him a knife, which Mr. Phillips described as a “dagger” which had a 3-4 inch blade and a gold handle. Polo showed him the knife, but then put it away;

(7) A second man rode up on a bicycle and “slammed” the bike down. The “bike man”, as counsel began referring to him, began talking to Polo;

(8) The bike man and Polo continued talking when suddenly Mr. Phillips testified that Polo took out his knife and slashed him across the left side of the face.

(9) Mr. Phillips immediately retreated inside the men’s residence, he told staff, police were called, and he was taken to the hospital. [ 14 ] On November 23, 2018, Mr. Phillips selected two photos from what Defence counsel concedes was a properly conducted photo line-up [7] . Mr. Paroski’s photo was photo #6. Mr. Phillips identified two persons from their pictures:

(1) Photo #6 was the person who attacked him [8] ;

(2) Photo #9 was someone Mr. Phillips said he recognized because he had seen him on the streets before. The complainant told the officer that initially he thought this person was the attacker, but that he had since seen the man in person, and he was certain #9 did not assault him. [ 15 ] Also, in court, Mr. Phillips identified Mr. Paroski as his attacker. [ 16 ] Defence counsel did not challenge any of the evidence related to Mr. Phillips’ ability to identify Mr. Paroski as his attacker. Mr. Phillips was unchallenged regarding his initial description of the suspect he gave to the police.

It was never suggested to the witness that there was anything that affected his ability to make observations or accurately recall the events, for example, that Mr. Phillips was under the influence of any kind of intoxicating substances. Nor was it put to Mr. Phillips that he had a prior criminal record or history of dishonesty. [ 17 ] Nor did counsel challenge the quality of the photo line-up, nor the photo line-up procedure, which was videotaped and which I find was conducted following the best practises and recommendations in the Sophonow Inquiry [9] . [ 18 ] Over all I find Mr. Phillips was very credible.

He was also very articulate, intelligent, and his evidence was rich with detail. His version of events was very balanced and supported by independent video evidence.

i) Video Surveillance Evidence Corroborating Complainant’s Testimony: [ 19 ] The entire interaction between Mr. Phillips and Polo was captured on video. Exhibit 11 is security video retrieved from one of the many Toronto Community Housing (TCH) security cameras that were situated in the surrounding area. Exhibit 11, Clip 1 recorded the slashing incident albeit from a distance. The video is in colour, recorded in real time and it confirms what Mr. Phillips says happened:

(1) At August 9, 2018, at approximately 8:10 am, Mr. Phillips is seen on the video leaning against a utility box. It is a bright, clear, sunny morning;

(2) At approximately 8:14 am, “Polo” arrived on scene accompanied by a female;

(3) By 8:14:17, Polo and Mr. Phillips appeared to be having a one-on-one conversation;

(4) Polo appeared agitated, making jabbing motions and moving around a lot. Mr. Phillips, on the other hand, remained standing in the same spot and he appeared calm and relaxed. [ 20 ] Mr. Phillips testified his view of Polo was unobstructed, which the video confirms. [ 21 ] The video also showed the arrival of a man on a bike:

(1) At 8:17:47 am, the video showed “bike man” riding up;

(2) At 8:17:59, the man threw down his bike;

(3) Between 8:17:59 and 8:19:38, “bike man” and Polo are seen having what appears to be a very animated discussion. Meantime, the victim Mr. Phillips stood passively in his same position;

(4) Just before Mr. Phillips was slashed, the video shows “bike man” and Polo standing beside each other, both facing him. [ 22 ] In cross examination, Mr. Phillips testified the “bike guy” was about five to six feet away from him and he, too, was muttering and was incoherent. Mr. Phillips thought the bike man also was on drugs. When he was slashed, Mr. Phillips said the “bike guy” was five to six feet away from Polo, and that bike guy never approached him. [ 23 ] Defence Counsel argues that if Mr.

Phillips is wrong about where the man with the bike was standing at the time of the slashing, then he could similarly be mistaken about who slashed him. [ 24 ] After reviewing the video, I am satisfied Mr. Phillips is mistaken when he said “bike man” was always five or six feet away from him. However, the video clearly shows that Polo slashed Mr. Phillips and not “bike man”:

(1) At 8:19:38 am, the video shows Polo suddenly extending his right-hand in a large sweeping gesture towards the victim while simultaneously extending his leg behind him;

(2) Instantly, Mr. Phillips is seen grabbing his face, turning and walking off camera;

(3) Straightaway Polo, followed by the female, walked away from the scene;

(4) Meantime, “bike man” remained at the scene leisurely walking around for a few seconds and then eventually leaving. [ 25 ] In watching the video, I am not left with a reasonable doubt that it was Polo who slashed Mr. Phillips. [ 26 ] The remaining issue is whether the Crown has proven beyond a reasonable doubt that Mr. Paroski is Polo? [ 27 ] On this issue, Defence counsel concedes the Court can properly draw a reasonable inference that Mr. Paroski is Polo based on the totality of the strong circumstantial evidence. Nonetheless, I will review the evidence, which falls into the following categories:

(1) Video Evidence;

(2) Evidence of Mr. Paroski’s DNA on the brown pants;

(3) Evidence of Mr. Phillip’s DNA on the knife found on the TTC bus where Mr. Paroski and a female were arrested;

(4) The testimony of two police officers, who had prior acquaintance with Mr. Paroski, who therefore were in a better position than the Court to identify Mr. Paroski from video security retrieved from a convenience store an hour before the attack (Leaney application).

b) Circumstantial Evidence:

i) Video Evidence: [ 28 ] As already noted, there were many TCH locations where video security cameras captured the movements of Polo and a female. [ 29 ] Exhibit 11, Clip One, showed Polo and the female quickly walking northbound on Sherbourne Street, immediately after the attack. Video security caught a good image of Polo, who Mr.

Phillips described as a male, Caucasian, 5’10” tall, slim build, with facial hair, wearing a black baseball cap, and a red bandana. [ 30 ] Here is a screenshot Exhibit 11, Clip One at approximately 8:19:44 (the slashing having occurred at 8:19:38), which shows the suspect male wearing a dark baseball cap with a white logo, a red bandana around his neck, a black t-shirt with a white stripe down its left side, ¾ length dark colour cargo pants and red high-top sneakers.

The male is also light skinned and has a beard and moustache. 9:58 on video marker – Exhibit 11 – Clip One [ 31 ] The video also showed a female following this male and she carried a very distinct black bag with white writing [10] . The bag and a pair of brown pants were seized that afternoon from an underground parking lot stairwell. [ 32 ] Subsequent video clips seamlessly piece together the pairs’ movements:

(1) First the male followed by the female walk through a parking lot of 155 Sherbourne Street (See Exhibit 11, Clip Two);

(2) Next, the pair continued to walk through the parking lot with the male in the lead. The male passed by an underground parking lot entrance;

Clip 3 at 29 seconds [ 33 ] However, the female stopped and opened the door of the underground parking lot: Clip 3 at 33 seconds The male then turned and ran back; following the female in the same door: Clip 3 at 43 seconds. The pair them emerged approximately three minutes later:

Clip 3 at 3:17 Followed by the male, who has now changed his clothes and is now wearing a red hoodie: Clip 3 at 3:18 [ 34 ] The next series of video clips on Exhibit 11, which I will not review, were taken from different security cameras and which showed the pair walking through a parking lot at a nearby building (295 Shuter Street). [ 35 ] In reviewing the video, I find the male’s distinct red hoodie was clearly visible as occasionally were his red sneakers. ii) DNA on Brown Pants: [ 36 ] After police responded and arrived on scene, officers were quickly assigned to retrieve security video from various TCH locations.

After someone had watched the video, P.C. Christopher Cooper, the Scenes of Crime Officer, was advised of a second location of interest, namely, the underground parking garage entrance. [ 37 ] In the stairwell, P.C. Cooper located a pair of brown cargo pants [11] which were later examined, and scientific testing located Mr. Paroski’s DNA could not be excluded as a source of the DNA on the inside of the waistband [12]

Brown Pants seized by Police from stairwell – Exhibit 6A-6C [ 38 ] P.C. Cooper also located and photographed a very distinct black reusable bag with a very distinct logo on its side [13] which I am satisfied is the same bag carried by the female, who accompanied the suspect. iii) Victim’s DNA on Knife: [ 39 ] Eight days later on August 17, 2018, Marc Paroski was arrested while on a TTC bus. At 9:00 pm, a team of officers executed what I will call a “take-down”: police stopped the bus and simultaneously numerous officers entered the bus through the front and rear doors. Videos from the bus, show Mr.

Paroski and the female both looking around and appearing surprised. As police approached him, the video shows Mr. Paroski looking down and then with his right arm, reaching behind the female. Police then arrest him. [ 40 ] P.C. Tyler Steel and his partner searched the immediate area and they located a collapsible buck knife underneath the seats directly in front of where Mr.

Paroski and the female were seated. [ 41 ] Forensic testing of the knife revealed the victim’s blood on the cutting edge of the knife blade [14] . [ 42 ] In addition, the victim, Christopher Phillips described the knife as a ““dagger” with a 3-4 inch blade and a gold handle”. He said he did not see Polo “flick” open the knife, so he concluded it was not a switchblade. [ 43 ] Here is a photo of the knife marked Exhibit 8, which I find is consistent with Mr. Phillips description of Polo’s knife.

Photo of knife seized from TTC bus with DNA from Victim - Exhibit 2C and Exhibit 8 iv) Leaney Evidence: [ 44 ] Defence counsel concedes Police Constables Kristophen Lobo and Kempton Shaw’s testimony is admissible as “non-expert recognition evidence” because the witnesses had prior acquaintance with Mr.

Paroski and thus are in a better position that the Court to identify the perpetrator. [15] [ 45 ] Police immediately began seizing videos from various locations in the surrounding area including from Sam’s Convenience Store, which has a sophisticated, high-definition security video system. [ 46 ] Police reviewed video from August 9, 2018 from between 7:15 to 7:30 am. [ 47 ] I am satisfied that one of the customers who was captured on video is without any doubt, the same man seen slashing Mr.

Phillips and then walking away from the scene. [ 48 ] Here is a screenshot from the Sam’s Convenience Store at 7:20:14 am, which shows a male wearing identical and unique clothing worn by the person who slashed Mr. Phillips, who was captured on the Toronto Community Housing video. The male on the

Sam’s Convenience Store video is wearing same black Nike hat with the white logo, distinct dark shirt with the light strip down the left side, and a red bandana around his neck. Sam’s Convenience Store Video on August 9, 2018 at 7:20:41 [ 49 ] As well, from this screenshot taken at 7:19:51 am, the male is also wearing red high-top sneakers with black laces. Sam’s Convenience Store Video on August 9, 2018 at 7:19:51 [ 50 ] The male in the Sam’s Convenience Store video can easily be compared to the male Polo, walking away after having just slashed Mr. Phillips.

[ 51 ] On the Leaney voir dire , the Crown called both officers each of whom testified that on August 9, 2018 they were asked to watch the convenience store video and both officers testified they recognized Mr. Paroski because they had arrested him in the past. [ 52 ] Defence counsel did not challenge P.C. Lobo who testified that in March and June of 2018, he had been part of a team investigating Mr. Paroski at, as it happens, 155 Sherbourne Street:

(1) First on March 13, 2018, P.C. Lobo testified he saw Mr. Paroski from five to ten feet away both seated and standing. He described Mr. Paroski’s physical features plus the officer had made notes of his interaction;

(2) Next, P.C. Lobo testified he saw Mr. Paroski twice on June 3, 2018 – so approximately two months prior to the incident before this Court. On June 3 rd , P.C. Lobo first saw Mr. Paroski, who was 15 feet away for about 10-15 seconds. Later that day, P.C. Lobo said he saw the defendant for two to five minutes. Prior to this contact, P.C. Lobo said he saw a RICI photo of Mr. Paroski.

(3) In comparing Mr. Paroski’s appearance from these dates to the convenience store video, P.C. Lobo was unable to articulate what about Mr. Paroski he recognized except in generalities: namely, that his build, height, and overall facial features were the same. [ 53 ] P.C. Kempton Shaw testified he had prior dealings with Mr. Paroski on February 1, 2017 and then on June 3, 2018. P.C. Shaw was better able to describe what about Mr. Paroski he recognized from the convenience store video:

(1) On February 1, 2017, between 3:00 to 5:00 pm, P.C. Shaw testified he was part of a team and that he spoke to Mr. Paroski. They were approximately five feet apart and there was no one else involved in their conversation. He gave a detailed physical description of Mr. Paroski including that the defendant had “icy blue” sunken eyes. I note that the victim, Mr. Phillips described his assailant Polo, as having “very very bright blue eyes”;

(2) P.C. Shaw went on and described Mr. Paroski as he appeared in February 1, 2017: slim build with short facial hair, dark reddish-coloured eyelids consistent with being sleep deprived, fairly full large lips, and slightly sunken cheeks. He pointed to the same features on the male in the convenience store video;

(3) On June 3, 2018, P.C. Shaw was the arresting officer and he was alone with Mr. Paroski for approximately 15 minutes and observed his mannerisms, his walk, gait and stature.

(4) Finally, P.C. Shaw also saw Mr. Paroski at the Old City Hall during one of the defendant’s court appearances. On this occasion, the officer did not make notes, nor could he recall any details. [ 54 ] Defence counsel also did not challenge P.C. Shaw’s testimony regarding his prior contact with his client or the basis upon which he says he identified Mr. Paroski from the video. [ 55 ] Counsel agreed that subject to this ruling, the evidence on the Leaney voir dire is admissible at Mr. Paroski’s trial as some evidence of identification upon which the Court can rely. IV.

Conclusion: [ 56 ] In conclusion, I find the evidence against Mr. Paroski can only be described as overwhelming. [ 57 ] The direct evidence proffered by the victim, Christopher Phillips, is credible and reliable and his testimony is corroborated by independent video evidence. [ 58 ] As well, I am satisfied there were no reasonable alternatives and no reasonable inferences other than guilt from the circumstantial evidence. There are no gaps in the evidence. The video evidence is seamless and captured Mr. Phillip’s attacker ducking into the underground parking garage entrance and changing his clothing.

The pants that were abandoned had Mr. Paroski’s DNA on them. When he was arrested, Mr. Paroski tried discarding a knife, which had Mr. Phillip’s DNA on it.

[ 59 ] It is for these reasons the Court is satisfied the Crown has proven the charges against Marc Paroski and he is found guilty of all counts. Released: May 17, 2019 Justice M. Wong