R. v. J.T., 2017 ONCJ 147

WARNING The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. J.T., 2017 ONCJ 147 DATE: January 10, 2017 COURT FILE No.: Newmarket Y140712 BETWEEN: HER MAJESTY THE QUEEN — AND — J.T. Before Justice Joseph F. Kenkel

Heard on October 31, November 3,4,8, 2016. Judgment delivered January 10, 2017. Ms. Mary Lou Armour ............................................................................. counsel for the Crown Mr. Steve Fortini ................................................. counsel for the accused Young Person J.T. KENKEL J.: Introduction [ 1 ] AJ went to a semi-formal high school party with friends. In the washroom his group made joking comments about two others who were there. There was an altercation and AJ was stabbed.

The accused was charged with: • Attempted Murder s.239 • Assault with a Weapon s.267(a) • Obstruct Justice s.129(a) • Personation s.403 • Possession of a Weapon for a Dangerous Purpose s88(2) • Two counts of failing to comply with a youth sentence contrary to s.137 of the Youth Criminal Justice Act [ 2 ] The Crown concedes that the evidence does not prove Attempted Murder beyond a reasonable doubt.

Final submissions identified two central questions for decision: • IDENTIFICATION - Has the Crown has proved the identity of the assailant beyond a reasonable doubt? • INCLUDED OFFENCE – If the Crown proves the identity of the assailant, is Aggravated Assault an included offence on the wording of this Attempt Murder count? [ 3 ] The Crown called 6 witnesses: • AJ – The victim of the stabbing • KC – AJ’s friend • TM – AJ’s friend • JK – AJ’s friend • Neena Jaswall – Event staff • Sonia Sallan – Security staff [ 4 ] The accused JT gave evidence for the defence.

The Evidence [ 5 ] AJ was 16 at the time of the incident. He went with friends to a semi-formal dance which had been organized by students but was not a school function. [ 6 ] AJ drank a quarter of a 1.14 litre bottle of rum and smoked marijuana before going inside the banquet hall. He was with his friends TM and JK and they were drinking too. AJ went with his friends to the washroom. He testified that he and his friends TM and JK started joking and laughing because two boys in the washroom exited from one stall. The boys exiting the stall took offence and there was a confrontation.

AJ identified the accused JT as one of the two exiting the stall who engaged in pushing with him. AJ put JT into a headlock then he tightened the grip on JT’s head. JT broke free and AJ noticed that he’d been stabbed. He testified that he wasn’t certain it was JT who stabbed him. AJ was in hospital afterwards for two weeks with serious injuries requiring surgery.

AJ was not friends with JT but knew of him prior to the event as they were in the same social circle. [ 7 ] In cross-examination AJ did not recall speaking to the trauma nurse at the hospital during medical treatment but agreed with the assertion that he did not see the stabbing. He agreed he discussed the incident with others afterwards and he agreed that his second statement to police may have contained some information learned from others.

He agreed that in his initial statement to police just after his surgery he did not mention laughing at the other men and seemed to say the incident was random without provocation. He’d seen the accused JT in the past and told the police his first name but he was not friends with him. [ 8 ] The complainant AJ agreed in cross-examination that the night he was stabbed he was not cooperative with the police. He “didn’t want anything to do with the police”. He didn’t recall telling the police at the hospital that he didn’t know the assailant’s name

and had never see him before, but he didn’t deny making that statement. In cross-examination AJ agreed that during the struggle he was not aware of where others were. In his statement to police he said he thought they left during the altercation. He confirmed again that JT was the person he struggled with, but he repeated that he was unsure that the accused was the person who stabbed him. Things happened quickly and he wasn’t aware of the stabbing when it occurred. [ 9 ] KC went to the same function but with another friend. He also was drinking prior to the event but didn’t recall the details.

He was in the lobby when he heard loud voices and yelling in the washroom. He went into the washroom and saw AJ, JK and the accused JT. JT was holding a knife. KC reacted by grabbing the knife from JT. He cut his hand in the process. Another boy JK was holding JT’s wrist. Security personnel from the banquet hall came in and took the knife from him. KC’s hand was cut when he grabbed the knife from JT. KC said he pointed out JT to the police as being the person with the knife. KC said that JT “looked intoxicated” and was aggressive during the incident.

KC went to the same school as AJ and knew of him but KC is a year older. He was not friends with AJ. [ 10 ] In cross-examination he testified that he did not discuss the incident with the complainant or his friends. He confirmed that when he entered the washroom the complainant AJ was there as was his friend JK. The accused JT was there. He didn’t mention JK being there in his statement to police as he didn’t know that mattered. KC confirmed in cross-examination that JK was the person who grabbed JT’s wrist as JT held the knife. KC blamed his drinking as the reason he failed to give the police JK’s name.

In response to further questions on this point he testified that his focus was on the knife and not the other person who intervened. He concluded that he doesn’t now really remember that other person. KC agreed he came into the washroom after the stabbing. The defence suggested that he yelled at JT, “What did you do?” but KC did not now recall doing that. [ 11 ] TM went to the event with the complainant AJ and their friend JK. He shared what he thought was a 750ml bottle of rum with the other two and ¼ of that bottle was left over. He was “feeling good” but not drunk.

Nothing happened when they first arrived but later he and AJ were in the washroom. JK arrived in the washroom two minutes later. There were four stalls and they noticed that one stall had two people in it. They were talking about that when the two emerged and there was a confrontation. There was pushing and TM said that AJ put both of the two boys who emerged from the stall into a headlock. There was a struggle and then security came in. [ 12 ] In cross-examination TM agreed that he didn’t see anyone with a knife and didn’t see who stabbed AJ.

He did not see KC struggle for the knife and didn’t recall him being in the washroom. TM confirmed in cross-examination that he knows the first person emerging from the stall who confronted AJ was the accused JT. He could not identify the second person. TM said that AJ’s back was towards him or against him in the sink area at the time of the altercation. TM said he didn’t see a knife or see the stabbing. He agreed in his original statement to the police he told them AJ put only JT in a headlock and the second person was trying to get out of the washroom.

He explained that he doesn’t now accurately remember the central part of the incident. [ 13 ] JK was with the complainant AJ and TM at the event. He had one or two shots of rum with the other two prior to going inside and also shared a bit of marijuana an hour or two before that. Inside the event JK and the other two ended up in the washroom. They saw two boys coming out of one stall and he remembers they joked about that. JK identified JT as the first person coming out of the stall. He said JT confronted AJ and asked him what he was laughing at. He saw JT attack AJ, pushing him.

He noted that JT was much smaller than AJ. AJ tried to dodge him but then put JT in a headlock under his right arm. JK saw JT with a knife in his hand. JK intervened and ended up grabbing JT’s wrist. JT let go of the knife and security entered the washroom. [ 14 ] JK admitted that he lied to the police in his initial statement as he was 16 and didn’t want his parents to find out he’d been involved in the altercation. His parents were already “freaked out” and he’d told his father a different story to minimize his involvement.

He told the police he didn’t see the knife and didn’t intervene in the altercation but that wasn’t true. He’s 18 now not 16 and he said he understood the importance of telling the truth at the trial and was telling the truth. He specifically asked his father to stay outside the courtroom during his testimony so that he could give a candid account. He agreed that the second person coming out of the stall was not involved in the fight and that AJ did not put two persons in a headlock.

JK said that he recognized the accused’s face but agreed that he learned the name from others. [ 15 ] Sonia Sallan was working at the event as security staff. She went into the washroom in the moments after the stabbing. She was told there was an incident in the men’s washroom and she ran directly in. Her co-worker Neena Jaswall entered just behind her. She told two men to leave and one of them she identified as the witness who had just testified (JK). Ms. Sallan tended to AJ who was injured with two wounds to the side of his abdomen and further cuts on his leg or thigh close to the buttocks.

She didn’t see a knife until her co- worker had it. In cross-examination she disagreed with the suggestion that she didn’t see JK in the washroom. Her diagram put the two non-injured men including JK inside the washroom when she first saw them. [ 16 ] Neena Jaswall was the second event staff member to enter the washroom. As she entered she saw a person with a red shirt walk by her and into the banquet hall. Inside the washroom she found a person with a knife in his hand who said, “I stopped him from getting stabbed”. The blade of the knife was towards his hand and he was cut.

There was another person in the washroom who had a turban. She took the knife from the person with the cut hand (KC) and got something for him to wrap his hand with. The security person Sonia assisted a third person who was bleeding. Ms. Jaswall saw the person with the cut hand help point out a person to the police who was then arrested. She recognized the person with the cut hand when she attended court on another day and saw him waiting to testify.

In cross-examination she said she could not confirm where the person who walked out went. [ 17 ] The defence and Crown agreed that a police officer seized the accused’s shirt that night and noted that the accused JT also had cuts on his hand. There was a significant cut on the top of his thumb on the right hand, minor cuts to his index finger and the finger next to the index finger on his left hand. [ 18 ] JT was also 16 at the time but he went to a different high school than the other witnesses. He was not friends with the Crown’s witnesses. He went to the event with his friend SP.

They drank Crown Royal whisky before going inside. JT had 5-7 shots of whisky, then after he and his friend drank a “mickey” (typically 375ml) of Bombay gin in the washroom. He was still able to walk but was “wavy” and drunk. He couldn’t remember if they finished the gin and he couldn’t remember how much he had. [ 19 ] JT walked out of the stall with his friend and recalled seeing a person with a knife in his hand. He saw a lot of people in front

of him and they were all walking out of the washroom. He didn’t know how many people were there. His friend SP was with him but hedoesn’t know where SP went. JT doesn’t know if others remained in the washroom after he left. [20] JT testified that after seeing the person with the knife but before he left the washroom, he tried to grab the knife out of theperson’s hand. Then someone else tried to grab it. He didn’t know someone had been stabbed. He didn’t see any altercation. He didn’tsee anyone in a headlock. There was no apparent reason why the knife was out. He doesn’t now know why he tried to grab the knife.

Hedoesn’t now remember whether he got the knife from the person. He now thinks he used one hand then both to try and get the knife. Hedoesn’t know if the other person let go of the knife at any point. He doesn’t know if the other person who intervened got the knife. Hedoesn’t know where the person who first had the knife went as he wasn’t paying attention to him. He was unable to say where exactlythe altercation happened as it all happened so fast.

JT said he left the washroom after he saw blood on his hands. [21] JT said he didn’t know which table he sat at and he didn’t know how long he sat there before police spoke with him. Hedoesn’t now remember his arrest other than that he was handcuffed. He was taken outside but doesn’t remember whether he was taken toa police car or a larger Jeep. He doesn’t know if he was searched or if any items were found during a search. JT agreed that the policetook false identification from him at some point.

He didn’t remember if he had a wallet or whether the identification was just in a pocket.He explained he had the false identification to use to buy alcohol. When asked how he felt about his arrest he said, “I don’t know I can’tremember …”. He didn’t remember what if anything was said to him by the officer. JT’s lawyer suggested to him that he told the policethat he didn’t do it and JT agreed with that suggestion, “Yeah I didn’t do anything”. [22] In cross-examination JT said he did not recall the police officer asking him for his name.

He agreed that being arrested by thepolice was a significant event but he said he didn’t remember anything about it because he was “drunk”. The false identification was areal driver’s license but it was not his, it belonged to an older friend. He agreed that he doesn’t now remember making the statementsuggested by his lawyer that he didn’t do anything.

He does remember that he “led on” the officer by telling him that he lived at theaddress on the license. [23] When questioned in cross-examination about how he says he grabbed the knife he replied, “I don’t know exactly” and lateron the same point, “it’s hard for me to remember”. He agreed his motions that he had shown earlier were guesses. He was unable todescribe the features of the washroom or the layout without guessing.

He remembers there were others in the washroom which is why heand his friend went into one stall to drink, but he can’t recall now if he heard them talking. [24] When questioned about what happened when he exited the stall JT said, “I don’t know, I can’t recall, I don’t remember”. Thewashroom diagrams of the other witnesses did not refresh his memory and he said he “wouldn’t be able to say” if they’re accurate. JT didrecall that he exited the stall first.

He agreed he walked straight towards the door and the 3-5 people were ahead of him in that directionbut still in the washroom and not the hall leading to the event. JT didn’t recall whether he saw the backs or the side of the 3-5 othersleaving. He didn’t say anything to anyone as he had no reason to. When asked whether the person with the knife was walking towardsthe door as part of that group JT said he wasn’t walking towards that door. When pressed he said, “I don’t remember that’s my answer”.He couldn’t say why he decided to try to take the knife away other than a vague notion that something might happen.

When asked whyhe didn’t just tell the person to put the knife down he replied, “I don’t know what to say to that”. When pressed further he said he wasvery drunk and doesn’t now remember what happened in the washroom. He didn’t recall if there were any loud or angry voices. He wasunable to answer questions about further incident details beyond those few facts he described. He was able to say that he recognized theCrown witnesses as persons who were there at the time but none of them were the person who initially held the knife. [25] Medical records were marked as Exhibit 5 on consent.

The CFS report for items submitted was marked at Exhibit 6 Analysis [26] Determining the credibility of the witnesses is the most important issue in answering the first question – whether the Crownhas proved the identity of the assailant beyond a reasonable doubt? I’ve assessed the evidence as a whole and make the findings of factthat follow in that context.

The case of R v WD (SCC), [1991] SCJ No 26 applies. [27] The defence admitted that the Crown could have called evidence to prove beyond a reasonable doubt that the accusedobstructed a peace officer and personated another person as alleged in counts 3 and 4 and that no defence related to intoxication or mensrea would apply. Documentary evidence of the Youth Sentence referred to in counts 6 and 7 was admitted on consent. Proof of counts1,2,5,6,7 otherwise rests on an assessment of whether the Crown has proved beyond a reasonable doubt that the accused was theassailant. [28] JT was not a credible witness.

I accept his testimony that he was in the stall with another person, that he emerged first andthat he was directly involved in a struggle with the knife. All of that evidence is consistent with the credible testimony of other witnessesand consistent with the circumstantial evidence. The remainder of his evidence including his account of his involvement in the strugglewas illogical and plainly unreliable. He was evasive during questioning in both examination-in-chief and in cross-examination.

Hisclaimed certainty on a few points related to his involvement in the altercation was surrounded by his claim of a complete lack of memoryabout most other surrounding details. His account of his involvement including the explanation for his wounds didn’t make sense andwas contradicted by external credible evidence. He drank quite a bit more than the other witnesses and was plainly more intoxicated.

Idid not find JT to be a truthful witness on the central points, but even if that finding is mistaken and his repeated lack of memory issimply due to intoxication I could place no weight on those portions of the events he claims to remember that were not confirmed byother credible evidence. [29] The complainant AJ was plainly a reluctant Crown witness. He admitted that he didn’t want the police involved despite thevery serious nature of his injuries. His initial statement to police immediately after medical treatment left out a number of details.

Heinitially told police he didn’t know who had struggled with him but later admitted that he knew the person. He didn’t want “anything todo with the police” when he was first interviewed. [30] He was drinking that evening and consumed marijuana but not to the point of intoxication. AJ’s account of the incident islogical – that he and his friends made fun of two guys emerging from one stall. The first guy out confronted him and they struggled. His

evidence regarding the confrontation and altercation is consistent with the evidence of the witness KC who was outside the washroom and ran inside after hearing loud voices and yelling. AJ is a big person and was able to put the other man in a headlock. He tightened his grip around that person’s head during the struggle. He didn’t see the knife and didn’t know he was stabbed, but as the Crown points out his injuries to his side and back buttocks/thigh are consistent with the areas of the body that could be reached by someone in a headlock.

The second person emerging from the stall was not involved in the fight and the credible evidence at trial including the testimony of Neena Jaswall shows there was only one person other than the complainant and the two witnesses who emerged from the washroom immediately after the stabbing. That person was wearing a red shirt and the evidence as a whole shows that person had been involved in the struggle with AJ. The altercation was brief and was over in seconds.

AJ’s overall account progressed in a logical fashion, showed a reason for the altercation and showed why the smaller person put in a headlock that was tightened might have resorted to stabbing to break free. [ 31 ] AJ initially told police that there weren’t other people in the washroom at the time he was stabbed but his evidence overall shows that his friends JK and TM were there with him at the outset. He was a reluctant witness and may not have wanted to involve his friends.

Given his focus on the altercation and the fact that he received multiple serious stab wounds it’s also possible that he simply didn’t know where his friends were during the altercation. It’s reasonable that he didn’t see himself being stabbed given that the wounds were inflicted to his side and back while he had a person in a headlock. AJ’s stated uncertainty as to whether the accused JT stabbed him was consistent with his presentation as a reluctant witness but also consistent with the fact that he didn’t see the knife or feel the wounds.

However, his evidence describes a circumstance that explains the use of the knife. AJ’s evidence does not identify any other person who could possibly have inflicted the injuries. [ 32 ] With respect to AJ’s identification of JT as the person who stabbed him, that evidence must be approached with great caution. See: R v Pelletier 2012 ONCA 566 at paras 89-95 . There’s no evidence that his dock identification was tested by a photo lineup or any other independent procedure.

There is evidence that there was some communication with others after the incident as teen texts and social media attributed a name to the person arrested. His position relative to the person in the headlock shows he would not likely be aware of what that person was wearing and the evidence shows his later statement that the assailant had worn a red shirt was likely derived from contact with others. There’s evidence that AJ knew the accused JT to a degree but there are no details of their prior contact.

I place very little weight on AJ’s identification of JT and assign it a non-zero weight only because there is some evidence of past knowledge of JT, and more importantly AJ’s testimony on this point is supported by other credible direct and circumstantial evidence. [ 33 ] While I approach his evidence with caution given his reluctance as a witness and some important differences in his initial statement to the police, I find AJ’s evidence is generally logical and consistent with other credible external evidence.

Differences in his evidence, particularly with regard to the first statement taken early at the hospital are reasonably explained by his medical condition at the time and his plain antipathy towards police involvement. Considering AJ’s evidence in the context of all of the evidence I find his testimony on the central points was generally credible and reliable. [ 34 ] KC was also drinking that evening prior to the event. He’s a year older than AJ and AJ’s friends. He went to the event with another person and was not with AJ’s group. KC went into the washroom when he heard loud voices and yelling.

His testimony that he grabbed the knife is consistent with the injury he received and consistent with the credible testimony of JK. He said another person held the wrist of the person with the knife which is also consistent with JK’s evidence. It’s understandable that he was unable to confirm whether or not the other person was JK as he was focused on the knife at the time. [ 35 ] KC’s dock identification of JT as the person he took the knife from was not supported by evidence of past association or independent photo identification.

However, KC’s evidence that he identified JT to the police shortly afterwards as the person he took the knife is supported by the evidence of Neena Jaswall and by the admitted fact of JT’s arrest at that time. It’s also consistent with Ms. Jaswell’s evidence that a person with a red shirt left the washroom as she entered and KC’s evidence that JT had been wearing a red shirt and dress clothes that evening.

His identification at the time was made when the events were fresh in his mind and the evidence shows he singled out the accused out of a crowd of many persons of similar description wearing similar dress including red shirts as shown in the cross-examination of other witnesses. That past identification as repeated at trial is consistent with the accused’s admission that he was present in the washroom and was the first person out of the stall.

It’s also consistent with the circumstances of the altercation set out by AJ and JK. [ 36 ] KC’s evidence was consistent with his injury, consistent with the credible evidence of other witnesses including Neena Jaswall. I find his evidence is credible and reliable in that context. [ 37 ] TM was with AJ that evening and also was drinking. He confirmed AJ’s evidence that they went into the washroom, saw two males in the same stall. An altercation followed when the males left the stall. TM said the first person to emerge was pushing and shoving and then was put into a headlock by AJ.

That’s consistent with the evidence of AJ and JK. He recalled a second person was also put into a headlock but TM’s evidence on this point didn’t make sense and was contradicted by the credible evidence of his other two friends. The suggestion that the second person out of the shared stall was also put in a headlock finds no support even in the accused’s evidence or the evidence of the persons present when the event staff entered the washroom. TM initially told the police that it was just JT who had been put in a headlock.

I find TM is now mistaken on this point. [ 38 ] TM was also apparently unaware of the intervention and presence of KC. TM’s identification of the accused JT as the person involved in the fight with AJ elicited twice in cross-examination was based on his recollection of the accused’s face. I find no weight can be placed on that identification given the lack of details to explain why he came to that conclusion. [ 39 ] TM’s account of the start of the altercation and the fact that the person who emerged from the shared stall was put in a headlock was credible and consistent with the other credible evidence at trial.

His present memory was unreliable as to the involvement of a second party in a headlock which was inconsistent with his statement to police and inconsistent with the other credible witnesses. Likewise his evidence that JK did not intervene is inconsistent with the credible evidence of JK and the observations of Neena Jaswell. TM admitted his memory of the events after the altercation started wasn’t good and some information he appears to have learned from others. I find I cannot place much weight on that portion of his testimony.

[ 40 ] JK was an impressive witness who testified in a neutral and factual manner and responded in detail to questions put by both counsel. Where the preceding witnesses conveyed directly or by demeanor to different degrees some reluctance to testify on behalf of the Crown, JK presented in a forthright manner. That doesn’t mean JK’s evidence was free of issues. His initial story to the police indicated that he was uninvolved in the incident. He explained that he said that to the police on affirmation because his parents were very upset about the incident and upset that he was going to speak with the police.

He’d told his parents he wasn’t involved and when he first spoke with the police he told them the same thing. Now at trial he’s 18 not 16 and he understands the special importance of telling the truth in this context. He specifically asked his father to wait outside the courtroom during his testimony so he could give the court a candid account. Considering JK’s age at the time and the circumstances as described I find the inconsistency between his evidence at trial and his initial report to police is reasonably explained. [ 41 ] JK went to the event with the complainant AJ and TM.

He had one or two shots of rum from the bottle the others shared and had some of the marijuana they shared hours earlier. JK testified that the accused JT emerged first from the shared stall and confronted AJ. JK’s group was laughing and this led to an altercation. JK’s evidence on this point is consistent with AJ and TM. He said after pushing and shoving AJ put JT in a headlock. That’s also consistent with AJ’s evidence and the credible portion of TM’s evidence. JK saw JT with a knife.

He did not see the stabbing but his evidence that AJ was involved in a fight with one person, that that person ended up in a headlock and that person had a knife is all consistent with AJ’s logical account, consistent with the circumstantial evidence of the location of the complainant’s injuries, consistent with the accused’s injuries as showing his proximity to the knife and his admitted presence in the washroom at that moment, and consistent with the observations of Neena Jaswell. [ 42 ] JK’s evidence that he grabbed the wrist of JT’s arm that held the knife is confirmed by the evidence of KC that a second person grabbed JT’s wrist as KC grabbed the knife from the other direction. [ 43 ] JK’s testimony as to the circumstances of the incident is consistent with the rest of the credible evidence at trial and was shown to be reliable.

His testimony that the person who first emerged from the shared stall was the person who fought with AJ and also the person who had the knife is consistent with the credible direct and circumstantial evidence at trial. He identified that person by name as JT but it’s plain that he got that name after the fact. He testified that he recognized the accused’s face but was unable to articulate what details led him to that conclusion.

I’m unable to give his dock identification much weight on that basis but I accept his evidence that the person first out of the shared stall was the assailant with the knife. [ 44 ] Sonia Sallan was working as event security and had no connection to any party. She went directly to the injured AJ so it’s understandable that she focused on him, but her evidence showed a person in a red shirt left the washroom as other witnesses said and two others were present in the washroom and left which is consistent with the evidence of TM and JK. Ms.

Sallan’s testimony was further evidence showing that the defence theory that TM and JK weren’t in the washroom during the altercation was not correct. [ 45 ] Neena Jaswall was able to provide much more detailed evidence regarding what happened with the persons in the washroom other than the complainant AJ immediately after the stabbing. She first encountered a man in a red shirt walking out past her. She then saw a person who looked shocked, holding a knife in his hand who said that he’d prevented his friend from being stabbed. She saw that the blade was towards his hand and he was cut.

She saw another man there wearing a turban which other evidence identifies as JK. He was the only person wearing a turban in the washroom. Ms. Jaswell’s observations are consistent with KC and JK’s evidence and further contradict the defence assertion that JK wasn’t in the washroom during the incident. She saw KC identify the accused for the police immediately after the incident from among a group of persons wearing red shirts. [ 46 ] The credible evidence at trial shows that the incident started with three 16 year olds in the washroom making fun of two others who had shared a stall to drink gin.

The first person to emerge from the stall confronted AJ and became involved in a struggle. AJ put him in a headlock. Nobody saw the stabbings including AJ, but the circumstances of the altercation and the location of the injuries is consistent with the blows having been inflicted by the person in the headlock to escape from the bigger AJ. That person had the knife in his hand until it was taken from him and he left the washroom. [ 47 ] In one of the few credible portions of his evidence, the accused admitted that he was in the shared stall and that he was the first to emerge.

The credible evidence of AJ and JK and the credible early portion of TM’s evidence show that the person who emerged first from the stall was the one person involved in the altercation with AJ. That person took out a knife until it was taken from him in a struggle.

Their evidence is consistent with JT’s injuries showing he was directly involved in the altercation in the washroom and in contact with the knife. [ 48 ] The combined evidence of the other witnesses including the identification of the accused to the police at the time of the incident by KC from among a group of young men is further evidence identifying the accused as the assailant. The accused was wearing a red shirt that was seized upon arrest.

While none of the dock identifications would be sufficient to identify the accused either alone or in combination, the whole of the evidence shows beyond a reasonable doubt that the accused was the assailant who stabbed AJ. I can find no evidence or combination of evidence that could reasonably leave a doubt in that regard. Aggravated Assault Included? [ 49 ] There are three ways that one offence may be included in another: • by description in the enactment creating the offence, • by description on the count on which the accused is charged, • or by specific statutory provision.

R v Pelletier 2012 ONCA 566 at para 105 [ 50 ] Section 239(1) of the Criminal Code proscribes the offence of attempted murder by “any means” and does not define the ways in which the offence may be committed. Aggravated assault is not included by the Code definition nor by a specific statutory

provision – Pelletier at para 107 . [ 51 ] The third way in which an offence may be “included” in another offence charged is where the description of the offence charged also contains the essential elements of another offence – Pelletier at para 109 . That’s the case here where Count 1 alleges that the accused attempted to murder AJ by stabbing. The particularization of that count as stabbing, a form of assault that involves wounding and endangers life, falls within the s.268(1) definition of Aggravated Assault. On count 1 as particularized, Aggravated Assault is an included offence.

Conclusion [ 52 ] I find that the Crown has not proved count 1 beyond a reasonable doubt but has proved the included offence of Aggravated Assault to the same standard. The Crown has proved the Assault with a Weapon alleged in count 2. The defence admits that the Crown could otherwise call evidence to prove count 3 Obstruct Peace Officer and count 4 Personation. The Crown has proved the accused possessed a weapon for a dangerous purpose as alleged in count 5.

The Youth sentence referred to in counts 6 and 7 was proved by documentary evidence and the findings above amount to breaches of the requirements of that order to keep the peace and not possess any weapons as alleged in those counts. [ 53 ] The Young Person JT is found guilty of Aggravated Assault s.268(1) on count 1, and guilty as charged on the remaining counts. Both parties are invited to make submissions with respect to multiple convictions for the same delict and whether a stay of count 2 would be appropriate. Released: January 10, 2017 Justice Joseph F. Kenkel