R. v. B.(Y.), 2011 ONCJ 290

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. B.(Y.) , 2011 ONCJ 290 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 — Y. B, a young person (or “young persons”) Before Justice D.M. Nicholas Reasons for Judgment released on May 24, 2011 J. Lalande .................................................................................................................. for the Crown J. Adley .............................................................................................. counsel for the accused Y. B. JUSTICE D. M.

Nicholas: [ 1 ] The following rulings address certain motions brought either by Defence or Crown following the closing of the Crown’s case.

This matter originally commenced as a trial with three co-accused, namely P.S., K. M. and Y.B. The charges stem from the robbery of two teenage females, at night, in the vicinity of the transit station adjacent to the Orleans Mall. The charges against K.M. were stayed on January 27, 2011 and he became a Crown witness. On March 4 th , P.S. pled guilty to the two robberies as well as to being a party to the use of an imitation firearm knowing an indictable offence had been committed.

On January 31 st , the two robbery charges were withdrawn for Y.B. and he remains charged with an accessory after the fact charge by enabling his co-accused to escape knowing an indictable offence had been committed. During argument Crown stayed the s. 85(3) offence relating to the possession of the imitation firearm which is a plastic soft air pistol which was sawed off. It does meet the definition of a firearm found in the Criminal Code . THE FACTS [ 2 ] There is video footage of the events immediately after the two females were robbed, including how and where the many youth dispersed.

In one scene, Y.B. is seen changing some clothing with another. He is also seen kneeling near what appears to be a grate, and laying something down. The object cannot be seen. Special Cst. Young became involved in the investigation inside the transit station and its overpass area. He found a bus pass, checked the garbage and then located the “replica pistol” at the top of the stairs. Photo 3 of exhibit 4 shows him pointing at the weapon. This has always struck me as odd, as the video footage clearly shows an officer walking over that exact area twice, and not noticing anything on the ground.

This is particularly odd as this officer was aware of and was participating in the investigation taking place. No one identifies Y.B. as being present at the robbery, but he is seen exchanging hats with J.C. and going down the stairs. He has not testified on the motions. Since the trial commenced, all charges were dismissed against K. M. and P. S. had entered pleas of guilty as described below. Only Y.B. is still before this Court. VOIR DIRE ON ISSUE OF “SPONTANEOUS UTTERANCE” [ 3 ] Crown counsel seeks to introduce a statement made by Y.B. following his arrest and rights and caution being given by Cst. St Pierre.

He had confirmed that the youth he was dealing with was the same youth who had dropped “the firearm” in the shelter. He read from the card with respect to the “ YCJA caution”. After testifying that he read from the card the words “do you want to call a lawyer now”, he indicated that that meant he would be able to call a lawyer once they were at the station. He then went on to reference the portion of the warning (exhibit 22) which states “You have the right to have a lawyer and or parent, or an adult relative or another appropriate adult present here with you if you want.

Do you want someone here with you?” He then gratuitously added that it “only applies if there is an interview once at the station”, and that police were “not going to call the parents to the scene” and that “we do not get an interview at the scene”. He left out the word “here” when reading to the youth his right to have a parent, responsible person or lawyer present. This is a rather egregious omission, in my view, one that misrepresented this youth’s rights at the scene. After he read him his rights, he advised Y. B. that they had him on video surveillance “dropping the firearm used in the robbery”. Y.

B. had “not seen the video to this point”. This is not a truthful statement as this youth is seen bending and seemingly placing something on the ground but no object is seen, and this statement could and would have completely misled Y.B. He explained that when he gives the required reasons for arrest that “it depends on me sometime I try to give more details to make them feel it’s ok”. He acknowledged that he did not inquire whether or not Y.B. understood the caution. He did not have Y.B. repeat to him his understanding of what his rights were.

He immediately recorded the following statement: “yeah I dropped the gun”. St Pierre denied that his own statement about the gun was meant to prompt Y.B. to say anything. [ 4 ] I fail to see how incorrectly advising a youth, who has not communicated with a lawyer or his parents, that they have him dropping the firearm used in the robbery would make him feel “ok”. Y. B. was cuffed at this point. He would have turned 15 two months before this event. It is St Pierre’s evidence that there was no other discussion with B. during the time in the cruiser.

During cross-examination he agreed that he had left out a word from the caution but provided no explanation. He clearly misunderstood the right of a youth to have a parent and/or lawyer present at the scene if he so wished. He placed this youth in front of a security camera prior to reading him his rights and caution. This is completely inappropriate. He failed to record the individual responses of Y.B. to any of the warnings or cautions. He did not explain to Y B., since he had an improper understanding of the law, his right to have a parent or lawyer present before speaking to anyone.

He has not carefully recorded his own statements to the youth and did not record verbatim much of anything. In his notes he merely wrote that he admitted to “dropping the gun”. Although the youth sat in the cruiser while police figured out what they were doing with him, no effort was made to put him in touch with his parent or guardian. I conclude that a complete record of the interactions between this youth and police, usually required for the admission of a statement, is not present in this case.

I make this comment because I found the evidence of St Pierre very troubling. [ 5 ] Crown seeks to have this statement admitted as a spontaneous statement. Such statements do not require compliance with the extensive requirements of s. 146(2) for the admission of youth statements. Therefore, the issue is limited to the spontaneity of the statement, which must be proven in order for the exception found in s. 146 (3) to apply. Officer St Pierre is the only witness to this statement.

Crown submits that St Pierre’s statement that they “had him dropping the gun” was meant as an explanation for his arrest and not a statement. There is no denying that it did directly result in the alleged statement. [ 6 ] Counsel provided case books on this issue. I must determine whether, in all the circumstances of this case, Y.B. uttered a spontaneous declaration, while arrested and cuffed. Crown concedes that, in the presence of any form of questioning, statements are usually excluded. This applies equally, he concedes to prompting our Supreme Court acknowledged, even in the Young Offenders Act era, in R. v.

J. (J. T.) [1990] S.C.J. No 88 , the “problems and difficulties that beset young people when confronted with authority.” In that judgment, Justice Cory wrote that “a young person is usually far more easily impressed and influenced by authoritarian figures”. In ruling that the statement made by J. T. was not spontaneous because he was a suspect in the eyes of police, had been held in custody for some time, and had been questioned at length. Two of those three elements are present here and the statement is made by Y.B. only after being falsely told that police had him “dropping the gun”.

I do not find the circumstances with respect to the recovery of the gun to be as clear cut as the Crown does. No item is seen, although the gun is later recovered at that location. [ 7 ] I have reviewed the cases decided since the advent of the Y.C.J.A . Section 146 (3) states that the requirements of s. 146 (2) do not apply if oral statements “are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements”. Y. B. has not given evidence on this voir dire .

The facts before me differ significantly from those in the cases submitted by the Crown. In R. v. Y.N . [2005] O.J. No. 6329 Justice Maclean, of this Court, relies on Justice Cory’s reasoning in concluding that any doubt as to the spontaneity of a statement should be resolved in

favour of the youth even, as in her case and the one before me, when the statement is made without any direct question posed to theyouth. [8] The rights and cautions provided to a youth upon arrest or detention are meant to fully inform that youth of all his/her rights,including the right to have a parent, responsible person, or lawyer present. It is also meant to inform of the youth’s right to silence. Policeare encouraged to ascertain that youth fully understand their rights before proceeding with any questioning.

It is not, in my view, anopportunity for the police to confront that youth with the evidence they have against him/ in a “gotcha” kind of way, while they arereading the rights from the police issued rights and cautions card. In doing so, I conclude that St Pierre violated in a significant way hisduty to Y.B. His reference to an “explanation” being given to Y.B., in the midst of his rights being read to him, does not withstandscrutiny. As stated above, the video depicts him bending and depositing an item that cannot be seen at all.

An officer walks right by thatsame area, while participating in the investigation and does not appear to notice it. It is in fact recovered by another police officer later,and there is no complete video coverage of activities at the scene. [9] In R. v. J.W. (ON CA), [1996] O.J. No. 3003 the Ontario Court of Appeal made reference to the OxfordEnglish Dictionary definition of “spontaneous” as “arising, proceeding, or acting entirely from natural impulse, without any externalstimulus or constraint”. It concluded that an external stimulus need not be a question or directive from a person authority.

The Courtreinforced the importance of the protections afforded to youth because of their immature powers of judgment. In R. v. A.C. [2010] O.J.No. 4743, Justice Cohen of this Court declared that the totality of the circumstances must be considering before a determination ofspontaneity can be made. She referred to the fact that the youth was 14 and had just been charged with attempted murder. The youthbefore me had been 15 for two months, was arrested and cuffed, was not properly advised that he had the right to have his parent,guardian or lawyer present “here” meaning at the scene.

In fact, the officer believed that right only came into play at the station.Furthermore, it was completely inappropriate to refer, while in the process of reading him his rights, of the incriminating video evidencethe police had on him. Nothing said after that comment should legally be construed as “spontaneous”. Having reviewed all of theevidence, I conclude that the statement will not be admitted into evidence. I agree with defence counsel that although the officerdescribed it as an explanation, it was tantamount to a wolf in sheep’s clothing. It was a completely inappropriate external stimuli andcircumstance.

I do not agree with Crown’s submission that nothing was done to prompt the statement. The absence of evidence by Y.B.does not determine that issue. The totality of the circumstances and, in my view, the trustworthiness of this officer’s evidence do. Thatstatement would have created in any youth the feeling that his goose was cooked. It prompted an immediate reply which in my view wasnot “spontaneous” as that term is legally defined in this case. CROWN MOTION TO RE OPEN ITS CASE [10] At the conclusion of the evidence of S.

M., Crown closed its case and Defence advised the Court that she would not be calling any evidence. This trial had proceeded from January 21st until February 1st, the March 7th date was cancelled to permit Y.B. to attend the OFFSA tournament, and March 18th was the date set for the argument of the Defence no evidence motion. Before that date, Crown brought this motion to reopen its case.

As referred to above, P.S. a co-accused, pled guilty before me on March 4th to certain of theoffences he was charged with including the two robberies and being a party to an offence in which an imitation firearm was used.Following his plea, Crown now intended to call him as a witness. In his submissions Crown counsel advised me that P. S. had been interviewed that morning of March 18th, having been subpoenaed to appear. Crown is now seeking, at this very late stage, to call P.S., aformer co-accused, as a witness for the Crown. Defence is obviously opposed.

She has made reference to the significant delays in thiscase, and the lack of certain transcripts. [11] Crown submits that a two stage inquiry is required on a motion to re-open; firstly is there prima facie evidence to present, andsecondly what is the impact of allowing the Crown to re-open its case at this stage. Crown relies on the judgment of our Supreme Courtin R. v. S.G.G. [1997] S.C.J. 716 which addresses the crucial question of whether the defence will be prejudiced in it defence. Crownconcedes that the discretion to re-open narrows as the trial proceeds.

Appellate courts have expressed some concern if the proposed re-opening occurs after the defence has begun to enter the case. The rights of the accused should not be compromised. In the S.G.G. case, awitness came forward at the end of the Defence case. [12] At page 10 par. 29 Justice Cory rules that: “the decision of a trial judge to allow the Crown to reopen its case at any time prior to averdict is discretionary and, as a result will generally be accorded deference”. This deference must be exercised judicially and in theinterests of justice.

The right becomes narrower as the trial proceeds because “of the increasing likelihood of prejudice to the accuseddefence as the trial progresses. During the first stage, when the Crown has not yet closed its case, the trial judge’s discretion is quitebroad. At the second stage, which arises when the Crown has closed its case but the defence has not yet elected whether or not to callevidence, the discretion is more limited.

Finally, in the third phase, where the defence has already started to answer the Crown’s case,the discretion is extremely narrow and is “far less likely to be exercised in favour of the Crown”. [13] Some cases have ruled that Crown should only be permitted where the evidence could not have been foreseen by the Crown, or ifCrown inadvertently omitted to adduce evidence as part of its case. In all cases prejudice to the accused is to be avoided. It is obviousthat P.S., as a youth co-accused, could not be called by the Crown before he entered his guilty pleas.

The rule which prohibits Crownfrom splitting its case does not apply in this case because of P.S.’s prior status as a co-accused. [14] Crown submits that prejudice, for the purpose of this inquiry, is to be used in the legal sense of whether it is likely to convict theaccused unjustly. Crown submits that the evidence he now possesses is to assist the Court in the search for the truth, and give a morecomplete picture of what occurred. P.S. pled before me and was immediately sentenced to time served and probation and then released by me.

Crown argues that this is the first substantive appearance since the plea on March 4th, and that we have not proceeded beyond thediscussion as to whether Defence would call evidence. Defence is firm in stating that she advised the Court beforehand that she wouldnot be calling evidence but would be bringing a no evidence motion.

Defence submits that we are at the second stage of the S.G.G. test.Defence is adamant that we are at the third because she did “take a step” by election not to call evidence and setting a date for a non suitmotion. [15] The S.G.G. decision does conclude at par. 51 that “the fact that the evidence arose in a manner that could not be foreseen is to a

large extent irrelevant”. In this case, it can be said that the pleas entered by P.S. were not foreseen. The question, however, is whether this youth’s right to a fair trial will be prejudiced. Crown closed its case on February 14 th and Defence at that time indicated she would be bringing a non-suit motion. Two days were originally set for March 7 th and 18 th . That first date was cancelled at the request of Defence when she submits that it was “clear we would not need two dates as I was not calling evidence”.

Although P.S. pled guilty on March 4 th , Crown did not advise Defence of its intention to produce P.S. as a witness until March 18 th , the date Defence was prepared to argue her no evidence motion. I appreciate that Crown might not have had the opportunity to do until he issued a subpoena for P.S. to appear as a witness. In my view, he should have advised Defence sooner that he was contemplating calling him even if the firm decision was not made and P.S. was only interviewed after he responded to the subpoena. [ 16 ] Defence argues convincingly that we are in the third stage of the inquiry.

Her view is that, in putting this Court on notice at the close of its case that she was bringing her no evidence motion, she has in fact “taken a step” in response to the Crown’s evidence. That step is to seek a directed verdict. She argues that Crown, now tipped off as to her intentions, is seeking to call a former co-accused to fill in the gap in its case. This is the rationale for having Crown counsel formally and on the record “close” its case. She intentionally did not reveal her intention to bring this motion until she had the safeguard afforded to her client when the Crown closed its case.

The fact that Crown could not call P.S. until his plea on March 4 th is irrelevant on the issue of whether it prejudices her client. [ 17 ] Defence argues that the focus of this inquiry must be on the rights of the accused, and the inevitable prejudice to her client that will result should I reopen this case. Crown obviously argues that P.S. only became a compellable witness after he entered his pleas and that he has cogent evidence to provide to the Court. I do not disagree. However that is only a part of the consideration here. Defence also objects to the late notice of the Crown’s intentions to call P.S.

I tend to agree, despite the fact that Crown was only able to interview P.S. on the date set for the Defence motion. In addition, after I allowed Crown to proceed with that motion, he did not provide defence with his cases until he started argument.

She responds to the argument that Crown is merely seeking to assist the truth seeking function by arguing that it should not be done in a hodge podge fashion at the expense of a fair trial for her youthful client. [ 18 ] She adds to the mix the fact that Crown has modified its approach to these charges throughout the trial, which has made providing Y.B. with a proper defence more difficult. Firstly, Crown states the charges against K.M. and proceeds to call him as “a star witness” halfway through the trial, and a key witness to identify the people involved in the swarming and robbery of these two victims.

Furthermore, K. M. gave his evidence after he was excused from this trial, but no statement was provided to Defence for this important witness. In my view, Defence brings this argument to the table to properly portray the frustrating manner in which this case has unfolded. She also makes the argument that she is prejudiced even further because she did not have the opportunity to make submissions as to whether P.S. should have pled guilty before me, as opposed to another judge. She had no idea the Crown was contemplating calling P.S. as a witness, and therefore did not attend the plea hearing.

She does not have a transcript or details of the evidence at the plea hearing. Furthermore P.S. is now being called as a witness in a case where, as a former co-accused, he has heard every single witness and could tailor his evidence accordingly. In addition P.S. is not in the same situation as the accused in the cases provided to me. He is not an independent witness. [ 19 ] Defence relies on the Ontario Court of Appeal decision in R. v. Linan [1998] O.J. No. 1267 . In that case, reopening was permitted after Crown closed its case and one Defence witness was called.

She has also been present during the Crown’s evidence. The Court of Appeal upheld the reopening of the case because “the evidence did not fill gaps in the Crown’s case or offend the appellant’s right against self-incrimination. It did not change the complexion of the Crown’s case”. In my view the same cannot be said on the facts before me. P.S. is a co-accused who has pled to two robberies and being a party to the commission of an offence during which an imitation firearm was used. His evidence would certainly fill in gaps and change the complexion of the Crown’s case for the Defence.

Given that I have not admitted Y.B’s statement, the evidence before me is that of the officer who found the gun in the location he said, despite another officer walking right by it and seemingly looking in that direction, as well as the video which shows Y.B. bent down in that location and appear to deposit an items which cannot be viewed. Of course, it is highly suggestive if the other evidence is accepted. Nonetheless, it remains a largely circumstantial case.

Crown has conceded that he did not have exclusive opportunity or access to the location where the gun was retrieved. [ 20 ] In this case, the defence position is that there is no evidence upon which a jury could properly convict. Defence takes the position that she has taken that step by electing not to call evidence and notifying the Court of the motion for non-suit. Crown disagrees strongly and maintains that we are, in fact, still in the second stage. P.S.’s plea is not evidence at the ongoing trial of Y.B.

Crown denies that Y.B. could be prejudiced by the evidence of his former co-accused who has had the benefit of hearing all of the evidence. [ 21 ] I am thankful to counsel for their arguments and the case books provided to me. My review of the excerpts from Watt’s Criminal Evidence textbook have been instructive, and lead me to deny the Crown’s motion. In R. v. Sylvester 919970, 114 CC.C. (ed.) 364 (Ont. C.A.) our Court of Appeal concluded that Defence is entitled to full disclosure and knowledge of the case prior to making the decision to call evidence or not.

In this case the evidence of P.S. would no doubt be relevant, but I conclude that it would be quite prejudicial to Y.B. particularly at the proposed witness is a former co-accused, willing to testify having been released from custody after having received from me a time served sentence. At the time I did not know that Crown had any intention to call him and it may not have yet formed that intent. The decision in R. v.

P. (M.B.) 1994 I S.C.R. 555 states that the decision to reopen depends on both the timing and the nature of the evidence Crown intends to call. [ 22 ] In conclusion, whether we are at the second or third stage, it is this Court’s discretion to reopen this case or not. This is not a case where the defence has simply elected not to call her client or other defence evidence. I accept her argument that she has commenced the process of answering the Crown’s case.

There is more than one way of doing that, one is to call evidence, another is to call no evidence and proceed to submissions based on the evidence, and a third is to answer the trial evidence with a motion for dismissal based on the Crown’s failure to produce any evidence which meets the very low threshold of being any evidence upon which a reasonable jury properly instructed could infer guilt, in effect the Arcuri test. I have considered the merits of the argument presented. I also take into consideration the special protections available to youth.

I am persuaded by the arguments of defence counsel that we are in fact at stage three. She has played her card by bringing a no evidence motion. That is her answer to the evidence of the Crown. In my view, even if we were at the second stage, prejudice to the youth before the Court would result from allowing the Crown to reopen its case by calling the former co-accused P .S. The motion is denied.

DEFENCE NO EVIDENCE MOTION [23] This motion relates to the accessory after the fact charge described at the beginning of this judgment. That charge is particularizedto allege that “knowing that K. M. & P.S. had been a party to the offence of robbery, assist them for the purpose of enabling them toescape”. Crown requested that I dismiss the s. 85 charge at the commencement of this motion. Crown alleges that he disposed of theimitation firearm in an effort to assist his co-accused to escape and avoid liability. In bringing this motion defence relies heavily on theSuperior Court decision in R. v.

Knott 2006 Carswell 1313 which dealt with a charge of accessory after the fact murder by hiding drugsand a gun in his barbecue. Nordheimer, J. , at the outset of his analysis, makes plain that the role of a judge dealing with such a motionis not to review the evidence and decide whether a guilty verdict is possible or not. Rather, the role is a limited one and involvesapplication of the preliminary inquiry test, summarized in R. v. Arcuri (2001) 2001 SCC 54 , 157 C.C.C. 3d) 21 (S.C.C.), ofwhether or not there is any evidence upon which a reasonable properly instructed jury could convict.

In other words, at page 3, caseswhere there is “admissible evidence which could, if it were believed result in a conviction”. If there is direct evidence on the requiredelements of the offence, this motion cannot succeed. However, the waters are a little murkier in a circumstantial case. Defence relies onthe principle set out in the Arcuri decision which permits limited weighing of the evidence to determine whether the test described aboveis met. [24] As for direct evidence, the date, time, jurisdiction and identity of the youth is admitted by Defence.

It is also admitted that the twocomplainants were robbed, not that he provided assistance to the principle offender in order to assist that person or persons to escapejustice and a robbery charge. The Knott decision refers to 4 required elements:1- that the perpetrators committed the offence, 2- that theaccused before the Court knew that they committed the offence, 3- that the accused provided assistance to the offenders, and 4- that heprovided that assistance for the purpose of helping them to escape. In the case before me, there were two other youth originally charged.Crown abandoned its prosecution against K.

M., and P.S. has now pled to the two robberies. [25] In Knott, Norheimer, J makes clear that it was not his role “to decide which of these or other different scenarios is the one the juryshould decide upon. Rather, it is only necessary for me to decide that there is competing that arise on the facts and that at least one ofthese scenarios would be consistent with guilt, to preclude taking the charge away from the jury.” [26] Defence is of the view that there is no direct evidence of every element of the offence as is required. Counsel agreed that the factson the P.S. pleas are not to be considered on this motion.

The defence admissions have already been described. Defence does not admitthat Y.B. knew that such a crime had been committed. She does not admit either that he provided assistance for offender in aiding theoffender to escape a robbery and that his assistance was provided for the purpose of enabling the principal offender to escape justice. Sheadmits that having pled P.S. is an offender for the robberies.

Her argument is that actual knowledge of the specific crime committed bythe principal offender is required or actual suspicion combined with a decision not to make inquiries which could confirm that suspicion.Therefore, her position is that the Crown must prove Y.B., as the accessory, knew that the persons he assisted knew that P.S. and otherunknowns were parties to the offence of robbery with an imitation handgun. She argues that it is insufficient for the evidence to merelydisclose that Y. B. knew that an offence had been committed and that, in disposing of the gun, he was assisting their escape from justice.

The Knott decision stands for the proposition that there needs be knowledge of the “specific offence that he is said to have beenaccessory to”. A similar conclusion is reached in R. v. Duong (ON CA), 108 O.A.C. 378 which dealt with a charge ofaccessory after the fact murder. Defence maintains that Crown has failed to provide and could lead a jury to convict him. [27] Following her argument, Crown reviewed the footage which shows Y. B. bending down, and seemingly placing something, that isnot seen at all, on the floor. Only the motion is seen.

The footage appears to show a bit a darker shadow in that area immediatelyfollowing his departure. I have heard evidence that Officer Young found the imitation firearm there some time later. My view of the gunevidence will be addressed at a further point should this motion fail. I am well aware of my limited role with respect to this motion. Sherelies on the evidence of K. M. who does not identify Y. B. as part of the group that robbed the girls. They described several youthsurrounding and taunting them. Nor does K. M. describe Y.B. as being in the periphery of the event. She also relies on the fact that S.

M.,who gave very detailed evidence and had a good view of the scene, said that he saw Y.B. in the shelter, as seen on the video, but not atthe robbery itself. Neither K.J. nor D.M., who were eye witnesses, put Y.B. at the scene of the robbery or its periphery, nor do theyrecall seeing any gun during the robbery. It was a chaotic scene and many people dispersed soon afterwards as the footage shows. I agreewith Defence that there is no evidence as to his whereabouts at the time of the robbery, or if he saw it, or at what point he discovered thata robbery with an imitation weapon had occurred.

There is no evidence that he had actual knowledge or even a reasonable suspicioncoupled with any deliberate failure to make appropriate inquiries, in other words wilful blindness. [28] The actus reus of the offence of accessory after the fact requires that Crown demonstrate that Y.B. committed some positive act oromission to aid the persons who committed the robbery. There is no direct evidence that Y.B. ever had that imitation weapon in hispossession.

Rather, Crown seeks to have an inference drawn based on the bending motion made by Y.B., as well as the apparent placingof an unidentified item on the floor, in the area where police later recovered the imitation weapon. P.S. had the magazine or that weaponon him upon arrest, no prints were lifted, and the video evidence is not definitive of the issue. Defence argues that police found the gunmore than a half hour after the robbery.

Crown alleges that Y.B. dropped it some 24 minutes before Young found it. [29] Defence reviewed the police evidence, namely that Young found the gun, and advised Laframboise that he had it. Laframboisethen reviews the tape and admits at trial that he could not see what was in Y.B’s. hand when he is near the grate because it is dark there.Defence admits that he is leaning in that area and that his hand does go down. Furthermore, he testified that the frame cut right when theitem was dropped.

It is the position of defence that the Crown’s theory falls apart because the video shows Y.B. bending and apparentlyplacing something down at 12.15. However, Crown witness, K.M., testified that he saw P.S. with the gun while they were in the tunneland S is seen running to the north side at 12.13 and returning at 12.20. An inference can be drawn given the footage that P.S. did notreturn to the tunnel until after 12.20 and P.S. is not seen disposing of the gun or handing it to anyone. The absence of key footage is anissue in this trial because of the manner in which the cameras shift locations.

Defence suggests that the evidence before me wouldindicate that the gun must have been dropped after 12.20 to then be found by Young at 12.39. This is based on the evidence of K. M. Of course, it is not within my authority on this motion to weigh or evaluate the evidence. [30] Defence concedes that her client switched hats with “Jessie” but argues that there is no evidence as to his intention for doing so.There is no evidence of exchange of clothing with the named accused and I cannot infer that he switched hats with Jessie to assist P.S.

and K. M. In addition, he is seen alone at 12.13 which would indicate that he is not an individual who appears to be in collusion with others plotting an escape. She concedes that knowledge or actual suspicion could be implied or inferred if there was evidence that he actually watched the robbery or if anyone could identify him doing so. I agree that there is no such evidence. Therefore, she submits that I should not be able to infer actual suspicion by Y.B. of what occurred nor with a failure to ask questions or seek clarity.

In conclusion, Defence maintains that there is no evidence of the 2 nd , 3 rd , and 4 th part of the test in Duong . [ 31 ] Crown has also provided very helpful written submissions and charts of the evidence in this case. The preparation and advocacy in this case has been excellent. Unfortunately, the many twists and turns in this case have resulted in multiple adjournments. It has taken over four months to complete this case on a piecemeal fashion, and I commend counsel for their preparation.

The facts are well summarized in chart form by the Crown in the document entitled Crown submissions, now appended to the Information. Crown summarized the involvement of Y.B. as follows. He was in the terminal when the robbery occurred and K. M. testified that everyone was watching. Y.B. is not identified by anyone as an attacker. Later Y.B. is seen alone heading to the north terminal. We see him and others go down then up the stairs. At this point, Crown alleges that Y.B. is seen disposing of the weapon. Y.B. leaves then returns.

By then, he has exchanged hats with J.C. who is not charged at all. [ 32 ] In his written materials, Crown repeatedly refers to Y.B. disposing of the firearm, it bears repeating that the firearm is not seen. As referred to above, one of the officers tasked with reviewing the videos makes plain that he never sees the firearm on film. Clearly Crown may argue that it was the imitation firearm since it was recovered at that location almost a half hour later. However, there is not a constant camera at that location. Crown has made that inference.

I acknowledge that I must draw all permissible inferences favourable to the Crown. It is the Crown’s position that the actus reus is fulfilled when Y.B. switches hats with J.C. and disposes of the firearm. He submits that the mens rea flows from that act. I cannot agree. This is an offence for which the specific intent to assist in escaping is a mandatory element of the charge as drafted. There is no factual basis for the Crown assertion that Y.B.’s knowledge of the crime is “evident”, in the sense that there is evidence that he had knowledge that a crime had been committed in which an imitation firearm was used.

The evidence of K.M. that “everyone was watching” has limited evidentiary value. P.S. has not testified at this trial, nor has Y.B. This alleged fact as stated by the Crown does not form part of the evidence. It is the Crown submission that these favourable inferences should be made in favour of the Crown. Despite that rule of law, the inferences must be permissible based on the evidence. J.C. is not charged with any offence before the Court and was not called as a witness.

I fail to see how the fact that Y.B. switched hats with him is, as Crown alleges “an attempt to frustrate the identification of J.C. as a participant in the robbery”. The charge faced by Y.B. in this trial specifically names the two parties he assisted in escape knowing that they had committed a robbery and they are P.S and K.M. [ 33 ] Crown argues that the required knowledge that the crime had been committed can be satisfied by actual knowledge of the offence committed or that the accessory was wilfully blind with regard to the offence. This is the Duong test referred to above.

Crown appropriately distinguishes between direct and circumstantial evidence. With direct evidence, Crown submits there must be evidence of each specific element of the offence. However with circumstantial evidence, limited weighing is required. He relies on the limited weighing referred to in Arcuri . In those situations the judge must not assess credibility, make findings or facts, or consider whether she would convict. The only question to be asked and answered is whether the evidence could reasonably support a finding of guilt.

Crown urges me to draw the reasonable inference that Y.B. dropped the imitation firearm. [ 34 ] Paragraph 34 of the Crown submission is rather troubling. He repeatedly refers to Y.B. as dropping the weapon, yet urges me to ignore what he calls the “opinion” of Cst. Young that Y.B. may have deposited something else. His submission that this evidence has no probative value and should be given no weight is odd, given that he is asking me to draw the opposite inference based on the same video.

It is not open to the Crown to repeatedly refer to Y.B. dropping the weapon without adding the caveat that this is the Crown theory. Again no object can be seen and the Crown theory and assertion is a circumstantial one, which of course can form the foundation for a charge. In my view, Young is not stating an opinion as alleged since the item cannot be seen; it is possible that it was the imitation weapon and it is also possible that it was not. That is not opinion evidence in my view. The item is not visible or evident.

I therefore disagree with Crown argument that there is clear evidence of the actus reus of the offence. [ 35 ] Obviously, I am required to determine whether a permissible inference can be drawn in this case which leads a reasonable jury to convict. The assertion that “everyone was watching” made by K.M., whose own attention was on the robbery he saw, has limited evidentiary value for obvious reasons. Presumably, if he is watching he cannot testify as to what others saw or viewed. The evidence of K.

M. on the issue of Y.B’s knowledge of the actual crime committed and the use of an imitation weapon is rather oblique. He purports to testify as to what one person in a crowd actually saw. It is not reasonable to infer that Y.B. saw the robbery and has knowledge of its details based on K. M.’s evidence that “everyone was watching” in the crowd of people in the tunnel. This is particularly so given the requirements in the Duong test as to specific knowledge of the actus reus itself and who committed the act. There is not a shred of evidence that Y.B. communicated to K. M. what he saw.

As a result there is no direct evidence that Y.B. knew that firearm was used in the commission of the robbery. Crown, in the alternative, asserts that Y.B. was wilfully blind to that fact. I do not agree with the Crown assertion that Defence is wrong in law in her submissions regarding the required knowledge of the actus reus . Crown argues that her submission “places the onus on the Crown to prove that any person accused as an accessory knew of particular details beyond the elements of the offence listed in the accessory charge” and is “unrealistic and contrary to public policy”.

As to the mens rea , Crown relies on the principle that an individual intends the natural consequences of his actions. He suggests that by disposing of the firearm and “switching clothes with the perpetrator of the offence”, it is clear he was doing so in “order to permit the perpetrator to escape”. The evidence is that he switched hats with J.C. who is not before the Court. I disagree, having chosen to particularize the accessory charge in the manner it did, the authorities cited by Defence constitute the required elements for this offence.

I am to apply essentially the preliminary inquiry test to the actual and circumstantial evidence to determine whether, drawing all permissible inferences in favour of the Crown, a reasonable jury could properly convict. [ 36 ] I am persuaded by the detailed response provided by defence to the written submissions of the Crown. I agree that there is no direct evidence that Y.B. had actual knowledge of the offence committed. That cannot be reasonably inferred from the bold assertion of K. M. that everyone was watching.

There must be actual knowledge or actual suspicion combined with a decision not to make inquiries about the offence. In this case, that knowledge must include the factual element that an imitation firearm was utilized in the robbery. Given the particulars of the actual charge, I agree that it is not sufficient for Y.B. to have had knowledge that a robbery had occurred. As per Knott , the law requires him to have knowledge or suspicion and refusal to inquire about the specifics of the offence and that, in disposing of the gun he was doing so to help the perpetrators escape from justice.

Defence has made persuasive arguments on the issue of

knowledge and intentional action by the manner in which she has reviewed the evidence of the civilian witness in her written submission. The evidence supports her conclusion that all of them were in different positions with different vantage points. Her review of the evidence of K.M. is such that, in my view, a reasonable jury properly instructed could not conclude as to the guilt of Y.B. given all the required elements that flow from the drafting of that charge.

I agree that evidence only disclosed that Y.B. was at Place D’Orleans at the time of the robbery, but not where he was specifically or what he actually saw. I am not prepared to infer his knowledge based on the evidence of K.M. referred to above. I accept the Defence as to the second element of the offence regarding actual knowledge as to the commission of the offence. [ 37 ] As for the third required element, namely that he committed some positive act to assist P.S. and /or others to escape justice; it is true that there is no direct evidence on the point.

None of the witnesses called saw Y.B. in possession of the imitation gun, the video is but circumstantial evidence which can of course be sufficient. In my opinion, a jury would have difficulty rendering a verdict of guilt beyond a reasonable doubt given the following facts: the gun is not seen on the video, the camera is not focused on that site throughout the whole time period, other people are seen in the area, and the gun is not recovered for over a half hour.

There is evidence that P.S. had the gun, but there is no evidence that Y.B. was ever in possession of the gun, no prints were found on it, and the video evidence is not conclusive. Of course, at this stage it need not be. I have already acknowledged that the Crown theory is weakened considerably, the Crown’s time line that Y.B. dropped the gun at 12.15 a.m. when the witness he is relying on, that is K. M., for this required elements of the offence has testified that he returned to the tunnel at 12.20.

The apparent and reasonable conclusion to be based on that is therefore that P.S. returned after that, at least five minutes after Y.B. is seen apparently placing an item on the grate before fleeing. There is in fact 19 minutes on the video not accounted for. There is also video evidence of another individual in that area at 12.16. With respect to the fourth element, defence argues and I agree that the switching of hats with J.C., who is not charged, is unexplained. I fail to see who switching hats with him relates to a required element.

Y.B is not with the original group who change clothing and is, in fact seen, walking alone and trailing the others. I accept her submission that this is not an individual who appears to be in collusion with others plotting an escape”. [ 38 ] In conclusion, I adopt and make mine the conclusions drawn by defence, namely that there is no evidence, on the 2 nd , 3 rd , and 4 th required elements so that could reasonably support an inference of guilt. There is an absence of direct evidence, and the circumstantial evidence does not, in my view, meet the test in Knott and/or Duong . The motion is granted.

Released: May 24, 2011 Signed: “Justice D.M. Nicholas”