)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2349

CITATION : R. v. Brown, 2013 ONSC 2349 COURT FILE NO.: 12-40000535-0000 DATE: 20130423 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – CHADDRICK BROWN and YAHYE HERSI Defendants )) )) )) )) ) ) ) ) Anna Stanford , for the Crown Andrew Stastny , for the Defendant, Chaddrick Brown John Scandiffio and Marsha Kideckel , for the Defendant, Yahye Hersi HEARD: February 19-22, 25-28, and March 1, 2013 SPIES J. Overview [ 1 ] The defendants, Chaddrick Brown and Yahye Hersi, are both charged with robbing Latoya Peters and her former boyfriend, Adil Osman, while armed with a firearm, in Ms.

Peters’ home at 87 Bagot Court, in the City of Toronto, on March 18, 2012, contrary to

section 344 of the Criminal Code . It is alleged that Mr. Hersi and two other youth offenders who participated in the robbery each had firearms. Although there is no dispute that Mr. Brown was not armed, the position of the Crown is that he is a party to the robbery and the use of a firearm. The defendants are also both charged with confining Ms. Peters and Mr. Osman without lawful authority during the robbery contrary to section 279(2) of the Criminal Code . In addition, Mr. Hersi is charged with uttering a threat to Ms. Peters to cause death to her on March 19, 2012, contrary to

section 264.1 of the Criminal Code . The defendants were arraigned on other charges that the Crown withdrew at the conclusion of the evidence. The defendants re-elected trial by judge alone and pleaded not guilty to the charges. [ 2 ] At the outset of the trial Ms. Stanford brought an application for an order permitting her to rely on the statement given by Mr. Hersi to police should he choose to testify. She also brought an application to introduce prior discreditable conduct and post-offence conduct with respect to Mr. Hersi. These applications were initially contested by Mr. Scandiffio.

He also contested the continuity of the two cell phones that Mr. Hersi had in his possession when he was arrested, one of which is material to the threatening charge. With the agreement of all counsel the trial proceeded by way of a voir dire on all of these issues which was blended with the trial.

It was agreed that the defendants could call evidence on the voir dire and that they would not be put to their election to call a defence until after all of the issues on the voir dire were decided. [ 3 ] After all of the evidence was heard on the voir dire , which included all of the evidence for the Crown’s case on the merits, Mr. Scandiffio conceded the voluntariness of the statement made by Mr. Hersi to police and that there was no longer any issue with respect to continuity of the cell phones.

After argument on the other Crown applications, I ruled that the evidence of prior discreditable conduct given by Ms. Peters of a prior incident when Mr. Hersi is alleged to have been showing off a gun was admissible solely to the issue of whether or not the gun that he is alleged to have had during the robbery was real. After argument began on the post-offence conduct application, Mr. Scandiffio conceded that application. As such I ruled that the Crown could rely on the evidence of the threats alleged to have been made by Mr. Hersi to Ms.

Peters as set out in Count 8 in support of Counts 1 and 2 which allege that Mr. Hersi robbed Ms. Peters and Mr. Osman while armed with a firearm. In my view this evidence was admissible on a number of bases including his consciousness of guilt. Arguably the person who made the threatening calls participated in the robbery as otherwise there would be no reason for that person to make the threats that are alleged. [ 4 ] Once all of the issues with respect to the voir dire had been dealt with, the defendants were put to their election. Mr. Stastny elected not to call any further evidence on behalf of Mr. Brown. Mr.

Scandiffio called Mr. Hersi. The Issues

[ 5 ] There was no challenge to the evidence of Ms. Peters that she and Mr. Osman were robbed in her home on March 18, 2012 and in fact Mr. Stastny conceded that Mr. Brown was at Ms. Peters’ house on that date and that he participated in a robbery. It was his position, however, that the firearms used were imitation firearms, that Mr. Brown was guilty only of robbery and that the Crown had not established his guilt as a party to either the use of firearms or the charges of unlawful confinement. [ 6 ] Mr. Hersi denied participating in any robbery of Ms. Peters and Mr. Osman and took the position that Ms.

Peters was either mistaken or lying when she picked him from a photo line-up. It is Ms. Peters’ position that she knows Mr. Hersi by the nickname C.Y. Although Mr. Hersi admits knowing Ms. Peters he denies being known as C.Y. or using that name. Mr. Hersi also denies making any threats to Ms. Peters and testified that the phones found in his possession belonged to someone with the nickname Kid. The Undisputed Evidence and Preliminary Findings of Fact Background [ 7 ] Ms. Peters had been living in a townhouse at 87 Bagot Court since June 1, 2011.

In a map drawn by Officer Christopher Bennoch, 87 Bagot is in the middle of a complex which consists of a row of townhouses which start at #83, which is by a path to Flemington Park, to the west of #87 and ends with #93, to the east of #87, which also has a path to the park adjacent to it. In other words, #87 is in the middle of this complex. All the townhouses in this building face south towards a parking lot and back onto the park. [ 8 ] Bagot Court is one of a number of courts that run off Varna Drive on the east side of Allen Road, north of Lawrence Avenue West. To the south of Bagot Court is Dorney Court.

On the west side of Allen Road both Edengarth Court and Amaranth Court run off Flemington Road. The area is known as Lawrence Heights. It was described by one of the officers as an “at risk area” that police pay special attention to. [ 9 ] At the time in question, according to Ms. Peters, Mr. Osman spent time during the day at her home but did not live there; he would go to his home at night. Ms. Peters had two young children at the time; a daughter who was almost three years old and a four year old boy. Their father is Orel Bradshaw. [ 10 ] Ms.

Peters testified that she recognized the four men that robbed her and Mr. Osman. She knows T.F. as T.F. and this is his government name. He is T.F. who was called as a witness by Mr. Stastny. He pleaded guilty to his participation in the robbery in Youth Court. Ms. Peters testified that she knows another of the men as R. and that his first name is I.G.; she did not know his last name. I understand that he is I.G. and that he was also dealt with in Youth Court but no evidence was called as to the outcome of his matter or whether or not he was in fact a participant in the robbery. Ms.

Peters testified that she knows the other two men as Kush and C.Y. She did not know their government names. Although there is an issue as to whether or not Mr. Brown used the nickname Kush, the evidence is clear that he is the one that Ms. Peters identified as Kush. As already stated, although the position of the Crown is that C.Y. is Mr. Hersi, Mr. Hersi testified that C.Y. is not his nickname. [ 11 ] Ms. Peters and Mr. Osman broke up in September 2012. Although Mr. Osman testified at the preliminary inquiry, Ms. Peters said that she hadn’t been able to find him for the trial.

The Defence did not suggest that any inferences ought to be drawn from the fact that Mr. Osman did not testify at the trial. The Relationship between Ms. Peters and the Defendants [ 12 ] Ms. Peters testified that the four men she alleges robbed her were known to her because these four men and others came to her home regularly to smoke marihuana that they had purchased elsewhere. Ms. Peters said that Kush was dating one of her friends and that was why he came. Once he started coming then “everyone” came.

She testified that they came whenever they pleased without her permission, they would stay as long as they wanted, they would smoke weed and drink alcohol at the front of her house, in the basement and the living room, that they were not her friends and she did not “chill” with them. She alleged that they would come and take over her house and be disrespectful to her. Ms. Peters did not like this and would ask them to leave but they would “disrespect me” and would not leave.

The men told her that she wasn’t from the “jungle”, a reference to the Lawrence Heights area and that “if we feel like chilling here we will and if we feel like leaving we will”. As I will come to, I find it more likely that people started coming to Ms. Peters’ home to buy marihuana from Mr. Bradshaw and perhaps later Mr. Osman and that it was understood that they could then smoke it in the home. [ 13 ] Ms. Peters identified both Mr. Brown as Kush and Mr. Hersi as C.Y. while they were sitting in the prisoner’s dock.

She testified that she has known Kush since September 2011; that he used to come to her house every day for one and a half months straight to smoke weed and drink alcohol. Ms. Peters testified that she knows C.Y. the same way as she knows Kush although he did not come as often as Kush. He was a “friend of a friend” and he started coming to her house about one to one and a half weeks later than Kush. He would be there a couple of days a week starting in November 2011. Ms. Peters testified that she did not see R. or T.F. as much as C.Y. and Kush. According to Ms.

Peters these men stopped coming about a week or so before Christmas until the end of January. They then started coming back but not as often.

[ 14 ] Ms. Peters testified that C.Y. was not a friend of hers or Mr. Osman’s. They wouldn’t text each other or socialize. She knew him only as C.Y. The name Yahye Hersi meant nothing to her; she had never heard that name until her first court appearance. [ 15 ] Ms. Peters estimated that she had seen C.Y. over 20 times before the robbery. He would sometimes chill at the house for seven consecutive days and other times just one or two out of seven. She thought it was five times out of seven on average but testified that he was not coming as often in December 2011 and January 2012 and thereafter. [ 16 ] Ms.

Peters testified that she would sell these men Century Sams from time to time but that they would buy their marihuana elsewhere. She eventually got Mr. Bradshaw to put a stop to these men coming to her home at the end of October, early November 2011, because they were not listening to her. I presume this is why she said that C.Y. and the others did not come as often in December 2011 and thereafter. The Robbery [ 17 ] Ms. Peters testified that on March 18, 2012, a little after 5 p.m., she was in her kitchen cooking dinner. Her son was sleeping on an air mattress in the living room. Her daughter and Mr.

Osman were watching television in the living room. [ 18 ] Ms. Peters heard a knock at the front door. She is not tall enough to see through the peephole and so she asked who it was. The person at the door identified himself as “Kush”. Ms. Peters testified that she recognized his voice and went to open the door. By this time Mr. Osman was up and coming to see who it was. By the time he reached her, she had already opened the door. Ms.

Peters testified that she opened the door for Kush because she assumed he was coming to ask for a “blunt”. [1] She testified she did not have any blunts and then corrected herself to say that she believed Kush had only come for a Century Sam. Ms. Peters testified that she would sell them individually from time to time. [ 19 ] At this point Kush and three other men pushed their way into the house. According to Ms. Peters, those men were known to her as C.Y., R. and T.F.. Ms. Peters said that she was pushed out of the way. Once inside she saw that three of the men, namely C.Y., R. and T.F., had pulled out guns. Ms.

Peters testified that the guns were not pointed directly at anyone but were held in a position to shoot. She believed them to be real. [ 20 ] According to Ms. Peters, C.Y. then asked her where her baby father was; a reference to Mr. Bradshaw. She told him that he was not there. At this point Ms. Peters alleges that C.Y. slapped Mr. Osman in the face and told them both to get into the living room. According to Ms. Peters, C.Y. told Mr. Osman “You can’t hustle on our block” or “Why are you hustling?” She was not sure of the exact words. [ 21 ] Ms.

Peters testified that R. and Kush were going through her handbag and the cupboards in the kitchen. C.Y. and T.F. then ordered her and Mr. Osman into the basement. Her daughter was crying and Ms. Peters told C.Y. she was not going to the basement. She testified that T.F. then pointed his gun towards her daughter and told her to “shut the fuck up”. Ms. Peters testified that her son, who was sleeping in the living room, slept through the robbery. She did not suggest that any of the men tried to get him up or that they spoke to him. [ 22 ] Ms.

Peters testified that she kept Century Sam cigars in a cupboard in the kitchen along with some change. She also had a scale there as she smoked marihuana and would weigh it when she bought it to be sure that she got what she bought. [ 23 ] Ms. Peters testified that C.Y. and T.F. brought Ms. Osman to the basement. She believed R. was in the basement at this point too. Kush was still in the kitchen. Ms. Peters then picked up her daughter and ran out of the house. As she left the house she said she was going to call police. She testified that the men had been in her house about five minutes by this time. Ms.

Peters said that she ran out the front door and ran knocking on neighbours’ doors and ended up at #89 Bagot and used her neighbour’s phone to call 911. [ 24 ] Ms. Peters testified that at the time of the robbery each of the men was wearing black gloves. She said C.Y. was wearing blue jeans, a navy blue silk jacket, but no hat. Kush was wearing a fitted cap. R. was wearing a red and black jacket, black pants, a red polo t- shirt, but no hat. T.F. was wearing a black and grey toque, a black hoodie, sweatpants, and black Nike Air Max running shoes. Each of the men had a gun save for Kush; Mr. Brown.

[ 25 ] In cross-examination Ms. Kideckel reviewed the very detailed descriptions of the men that Ms. Peters gave to police in her statement of March 20, 2012. With respect to Mr. Hersi she said that he was 18, has a space between his two upper front teeth, that he has dark skin, is six feet tall and skinny, that he is Somolian, that his hair is “semi African” in that it is curly but not too curly. She confirmed that she told the police the truth and that the event was fresh in her memory at the time. [ 26 ] Ms. Peters denied having any guns in her house at the time of the robbery.

She said there was no marihuana in the house when the kids were home. Ms. Peters testified that Mr. Osman did not sell drugs out of her house. I will come back to this. [ 27 ] Ms. Peters testified that the men took Mr. Osman’s wallet which had all of her and her children’s identification in it, her cell phone, Mr. Osman’s cell phone and her kitchen scale. When she went back to her home the next day she realized that her camera was gone as well. [ 28 ] The photographs taken by the Scenes of Crime Officer Bennoch before 9 p.m. on March 18, 2012 were introduced into evidence.

They show kitchen cupboard doors open and cushions on the couch in the living room on end, consistent with the rooms being ransacked. He dusted the townhouse for fingerprints but did not obtain any results apart from items he seized. I heard no evidence about those results. The Alleged Firearms [ 29 ] Ms. Peters described C.Y.’s gun as being all black, R.'s gun as silver or gold with black on the handle grip and T.F.’s gun as small; the size of her palm. She believed them to be real; they were all made of metal and none looked fake.

Later in her evidence she testified that she thought the guns were real because “they walk around talking about having guns”. Apart from one incident involving C.Y. she gave no particulars about this. [ 30 ] Ms. Peters testified that she believed R.'s gun was a 9 mm or 40 calibre gun but this was based on what she has seen in the movies so it is clearly not reliable. Ms. Peters testified that she had seen guns before but admitted that she has no experience with guns. Ms. Peters has never held or shot a gun. She has never seen a gun being shot.

She has no experience with imitation guns although she said she had seen a fake BB gun before. She did not explain how she knew it was fake. [ 31 ] As part of the prior discreditable conduct application Ms. Peters testified that C.Y. had walked around the neighbourhood bragging and showing off his new gun. She couldn’t remember when but thought it was probably a couple of months before the robbery. She was in the kitchen and C.Y. was standing sideways to her, between the screen and her front door which was open. There were a few people there; she couldn’t say how many or who.

She testified that he said “look at my new ting”. In re-examination when she was asked what he said again, she added for the first time that he said “it has an extended clip” and said that this was a direct quote. She did not hold or touch this gun. Ms. Peters admitted that this gun is not the same gun that she saw Mr. Hersi with at the time of the robbery. [ 32 ] In cross-examination by Mr. Stastny, Ms. Peters testified for the first time that when Mr. Bradshaw put an end to C.Y. and the others coming to her house to smoke weed in November 2011 that C.Y. threatened Mr.

Bradshaw, in her presence, that he was going to shoot him in the face. The 911 Call [ 33 ] The 911 call made by Ms. Peters was introduced into evidence. Ms. Peters sounded very hysterical on that call and could barely speak. She told the 911 operator that she knew the four guys and knew their names and that they were between 15 and 18 years old. She named C.Y. first, then Kush and then changed topics and started screaming, presumably because she saw the men now outside the townhouse. She can be heard yelling at them that they should bring her phone and that she had called the police on them.

The 911 operator told her to stay back. She told the operator that they had her phone and that her mother had no way to get in contact with her. She then told the operator that the men were T.F., I.G. and Kush, that they were wearing all black and that they had come to the house to rob her boyfriend. She was hysterical and crying throughout the call while the operator kept her on the line. It was difficult to tell what she was saying for parts of the call.

She told the operator that they had put a gun to her three year old’s head, that they had gloves on, that she didn’t know their last names and that although some did not live in the neighbourhood they would come to the neighbourhood, that she had seen them in the neighbourhood before, that she had just moved there and that she would say “hi” to them and had seen them walk past her house. Ms. Peters also told the 911 operator that she had never chilled with them. When asked about this statement in cross-examination Ms.

Peters said that she meant she did not hang out with them and said that she told the 911 operator that she knew C.Y. “through” the neighbourhood not that he lived in the neighbourhood. [ 34 ] Ms. Peters testified at trial that she did not see the men leave her house but she saw them at the end of Bagot Court. When she saw them after they left her home, they were running towards Dorney Court. Three were on foot and one was on a bike. (I note that Mr. Hersi testified that he has a cousin who lives in Dorney Court.) Mr. Osman then came out of the house with her son. She explained that

she was concerned about her phone because her mother had just had a stroke and her phone was the only way her mother could call her. That is why she kept yelling at the men about the fact that they had taken her phone. The Police Investigation [ 35 ] A surveillance tape from a camera located on the corner of number #83 Bagot facing the parking lot was introduced through Officer Bennoch. He was not able to testify as to when it was taken, but that evidence was given by Ms.

Peters who identified herself on the surveillance tape walking on the sidewalk outside her neighbour’s house while she was on the phone to the 911 operator following the robbery. This video is about 20 minutes long and it is clear that it starts before the robbery and continues until the police arrive in response to the 911 call. [ 36 ] What is very significant is that about three minutes into the video, you can see four men talking together just east of her townhouse building. One is on a bicycle and the description of the four, to the extent you can see, matches Ms.

Peters’ description of the four robbers save for one exception. When Ms. Peters was shown the surveillance video she testified that now that she saw the video, C.Y. was wearing the fitted baseball cap, not Kush. She identified which person C.Y. was on the video. As I will come to this evidence was never specifically denied by Mr. Hersi. [ 37 ] The officer in charge, D.C. James McDonald, testified that he did not try to obtain any records with respect to the Samsung phone seized from Mr. Hersi until he was asked to do so by the Crown just before Christmas 2012.

He said that in his experience he has always been able to go back to these records but in this case he hit a wall. He was looking for a record that would show incoming and outgoing calls, the times of text messages and possibly the actual texts. [ 38 ] D.C. Hawkins was one of the officers who took the first statement from Ms. Peters. He was also one of the officers who picked her up on March 20, 2012 to bring her into the station for a further photo line-up. During the course of the drive to the station Ms. Peters told D.C. Hawkins and his escort about threats that she had received. She gave D.C.

Hawkins a cell phone number that she said belonged to C.Y. This evidence was confirmed by Ms. Peters although she no longer recalled the number on the cell phone that was used to make the threats. When D.C. Hawkins dialed this number shortly thereafter, one of the cell phones seized from Mr. Hersi, which was in the office in a property bag, rang. He passed this information on to Officer Stinson. [ 39 ] Mr. Osman refused to talk to the 911 operator or to cooperate with the police or give a statement. Officer Daniel Janeczko, who responded to a call to attend #87 Bagot Court spoke to Mr. Osman. He observed that Mr.

Osman’s forehead was injured and a bottle was found on the stairs to the basement as was one glove. The First Photo Line-up [ 40 ] There was no issue raised with respect to the first set of three photo line-ups conducted with Ms. Peters by Detective Palermo on March 18, 2012 at about 9 p.m. She identified T.F. as “this is one of the guys who entered my house. I know him as “T.F.”. She identified a photo that is admitted to be of Mr. Brown as one of the guys who entered her house that she knows as Kush. As for R.; I.G., she identified his photograph as “I know this guy as I.G. aka R..

This is one of the guys who entered my house.” She was not shown a photo line-up with a picture of Mr. Hersi. The Alleged Threats to Ms. Peters [ 41 ] Ms. Peters testified that Mr. Osman transferred his cell phone number over to another cell phone; a Public Mobile phone. On March 19, 2012 an unfamiliar telephone number rang this phone and they didn’t answer it. They could see the number on the caller ID of the phone. She believes that just before dinner on that day she answered the phone and said “hello”.

The person on the other end said “you fucking rat – don’t come to Jungs [a short form for the jungle; a reference to Lawrence Heights] – I’m going to fly you”. Ms. Peters testified that the statement “I’m going to fly you” meant to her that he was going to kill her or do harm to her. She testified that although the person did not identify himself, she recognized the voice as C.Y.’s voice from the tone and the way he spoke. She laughed it off and hung up but it made her feel uneasy because her and her children’s lives were in danger. The phone rang more on that day with the same number but she didn’t answer it.

The next day she saw the same number and picked up the phone again and a similar threat was made. This time the phone was on speakerphone and Mr. Bradshaw was present and heard the threat. [ 42 ] In the meantime Ms. Peters was given a Blackberry by Mr. Bradshaw and she used it to call the number on her stolen phone a few times. She had asked her mother and cousin to do so as well. On March 19 th Ms. Peters testified that when she called her stolen phone C.Y. answered; she could recognize his voice. This was in the morning sometime between 11 a.m. and 12 noon.

He told her not to go to “fucking court” and called her a “fucking rat” and told her not to sleep at her house that night as he was going to “beat shots through your window”. [ 43 ] On March 20, 2012, Ms. Peters testified that her cousin forwarded a text to her that she had received from the number of the phone that had been stolen from Ms. Peters. That text said something like “laugh out loud – I’m going to fucking kill you if you come

back to Jungs you snitch”. The text was saved but she does not know where her Blackberry is and her cousin did not testify about this. For these reasons I do not find this text proven. The Arrest of Yahye Hersi [ 44 ] Mr. Hersi was arrested on March 20 th , 2012 by Officers Samson and Dolghii. Officer Samson testified that he was very familiar with the Lawrence Heights area as he had been with 42 Division for eight years.

They had been dispatched to deal with a low priority call and decided to drive through Lawrence Heights on the way as there had been a recent shooting in the area and they wanted to maintain a police presence. [ 45 ] Officer Samson was driving and testified that they drove into the area on Flemington Road at about 4:40 p.m. They saw a group of males loitering in front of #57 Amaranth Court. Officer Samson decided to ensure all was in order and drove into Amaranth Court. As he drove towards #57 Amaranth, the group of men dispersed.

At this point Officer Samson said that his attention was drawn to a grassy laneway area between Amaranth Court and Edengarth Court and a walkway there. He testified that he saw two men separate from the group and start walking in the laneway towards Edengarth Court. The men looked back and it appeared to Officer Samson that they saw the police car and then started walking quickly towards Edengarth Court. Officer Samson testified that he drove the scout car onto the grassy laneway between Amaranth and Edengarth Court. He lost sight of the two men for about 30 seconds.

Once he got to Edengarth Court, he saw the two men again and when they saw the police car they immediately turned around and started walking back towards Amaranth Court. At this point Officer Samson realized the two men were trying to avoid them and he wanted to determine what they were up to. He drove up to the laneway where he last saw them going back into Amaranth Court.

As Officer Samson pulled up to the curb of the laneway he saw that both men were now running towards Amaranth Court; one went right at the end of the laneway and the other left. [ 46 ] Officer Samson testified that after he put the car in park and got out, the men were out of sight. He chased the man running to the left and ran around back into Amaranth Court as he assumed that is where this man ran; there is an entranceway into the court. Officer Dolghii ran after the man that ran to the right.

As Officer Samson reached Amaranth Court he saw the male he was following standing on the island in the middle of the parking lot for Amaranth Court. He was stopped and Officer Samson yelled stop and asked him to come towards him. The man complied and was cooperative and showed no intention of trying to run away. They spoke in front of one of the townhouses. As the male approached, within seconds, he said that he had two cell phones that he was not supposed to have and that he was holding them for someone. Ms. Stanford admitted that this statement is admissible as part of the res gestae .

At this point Officer Samson did not know where Officer Dolghii was. At trial Officer Samson confirmed that the person who came to him was Mr. Hersi. [ 47 ] Officer Samson told Mr. Hersi that he was detaining him for possible breach of his conditions. He did a pat down search for weapons and found two cell phones in one pocket of his vest. At this point Officer Dolghii came over, having failed to catch the man he was chasing. Officer Samson handed the two cell phones to him. Mr. Hersi verbally identified himself as Yahye Hersi and Officer Dolghii checked his name with the station. At this point Mr.

Hersi was sitting down but he was getting fidgety so Officer Samson handcuffed him. Officer Dolghii determined that Mr. Hersi was under a condition not to have any cell phones and that he was wanted under a surety warrant. Mr. Hersi was given his rights to counsel and cautioned from the back of Officer Samson’s memo book. Mr. Hersi said that he wanted a lawyer. [ 48 ] The evidence of Officer Samson was largely confirmed by Officer Dolghii who also testified that the men ran and as a result he and Officer Samson chased them.

As I will come to, although questions were asked about the path the officers took, neither officer was challenged about the fact that Mr. Hersi ran from police in cross-examination. [ 49 ] The officers left the area with Mr. Hersi at 4:54 p.m. As they start to drive away, the in-car video shows Mr. Hersi asking what his charges are and he mentions home invasion. There is no response to this question from the officers. On the way to 32 Division Officer Samson stopped to talk to officers from a Community Response Unit (“CRU”) as he wanted them to try to find the man who got away from Officer Dolghii.

The in-car video shows the door opening to the backseat and Mr. Hersi asks again about his charges. All I can make out is that there was a reference to the surety warrant. When Mr. Hersi asks this question a little later of one of the CRU officers who was talking to him while he was in the backseat he told this officer that “the officer” said he was being charged with home invasion. Once the car was moving again and Mr. Hersi asked Officers Samson and Dolghii this question he was told he had been arrested for fail to comply and the surety warrant. [ 50 ] This exchange seemed important to Mr.

Scandiffio and he suggested Officers Samson and Dolghii were really arresting Mr. Hersi for home invasion. Mr. Hersi testified that he was told at the time of his arrest that there were a bunch of charges including home invasion and he testified that Officer Samson commented on his hair and asked him to open his mouth. There is some support for this from the statements made by Mr. Hersi in the in-car video I have already referred to. Officer Samson had no recollection of Mr. Hersi asking him about a home invasion in the car nor did he have any recall of asking Mr.

Hersi to open his mouth to see if there were any spaces between his teeth. Officer Samson testified that they were not looking for a robbery/home invasion suspect. Officer Samson testified that he was advised by Detective Palermo that night at 7:40 p.m. that Mr. Hersi was also going to be charged with robbery with a

firearm and threatening death. [ 51 ] I do not have any evidence as to how and when the police determined that Mr. Hersi was the fourth suspect in the robbery or how they knew he went by the name C.Y. as that is who they told Ms. Peters had been arrested. I accept the evidence of Officer Samson that he did not know that Mr. Hersi might be involved in a home invasion when he first arrested him. Officer Dolghii also testified that he did not know about these additional charges until after the arrest of Mr. Hersi and they arrived at the station.

Their evidence is consistent with what they said during the booking hall video. Furthermore, if they believed Mr. Hersi was the fourth suspect in the home invasion I can think of no reason why the officers would not admit this and why they would not have charged him with that as well. The officers were not asked if they knew about the home invasion at the time of arresting Mr. Hersi. If they did, and if they were aware of the detailed description of the men provided by Ms. Peters, it is possible that they considered whether or not Mr. Hersi matched the description. This, however, was not asked either.

I have, therefore, concluded that this issue, which is otherwise not relevant, does not adversely impact on the credibility of the officers or Mr. Hersi. [ 52 ] Officer Dolghii testified that the Samsung cell phone was charged and working when he seized it from Mr. Hersi. He checked the contacts on the phone and the entry for the first name and number under “My Profile” came up without a name and with the number 647-739-3141. As I will come to, that is the number that Ms. Peters said was showing for the phone used to make the threats to her. The Second Photo Line-up [ 53 ] Ms.

Peters testified that on March 20 th she received a call from police and was told there was one more line-up to look at. She was picked up from her home by D.C. Hawkins and his escort and brought to the station. Although D.C. Hawkins could not recall this, Ms. Peters testified that on the way to the station the police told her that C.Y. was arrested; he was referred to as C.Y. Ms. Peters admitted that she was going to the photo line-up to see if she could find C.Y. [ 54 ] The second photo line-up was done at 7:11 p.m. and Ms. Peters gave a second statement to police shortly thereafter.

During the second photo line-up, Officer D’Cunha advised Ms. Peters during the course of asking her the pre-photo line-up questions that they were investigating a home invasion robbery that occurred on March 18, 2012 at 87 Bagot Court. Directions then followed and included a statement as follows: As part of our investigation into this home invasion that occurred on March 18, 2012 you will be shown individual photographs to see if you recognize anyone in the photographs, for any reason . [ 55 ] The standard photo line-up instructions and questions were then put to Ms.

Peters which included the fact that: The person or persons involved in this incident may or may not be in the selection of photographs that you are about to view. It is just as important to eliminate innocent persons as suspects, as it is to identify guilty parties. “Do you understand?” to which Ms. Peters answered “Yes”. [ 56 ] The directions went on to advise Ms. Peters that once she looked at a photograph there were only two options; either to say “Yes” you recognize the person or “No” you do not. Ms.

Peters was told that if she did not recognize the person to say “No” but if she recognized the person for any reason to tell the officer “Yes” and “why” she recognized the person. [ 57 ] When Ms. Peters came to the photo that is admitted to be of Mr. Hersi, she paused for approximately fourteen seconds while looking at the photo before she said “Yes” which she then wrote on the back of the photograph. She did not state at the time who she believed this person to be nor was she asked why she recognized this person by Officer D’Cunha or Detective Marsden who was also present. [ 58 ] Mr.

Hersi testified that he thought this picture in the photo line-up was taken when he was arrested in August 2011. Assuming this is correct, having compared this picture to how Mr. Hersi appears in the in-car video when he was arrested, I find there was no material change in his appearance between the time of the photo and the time of his arrest for the charges before me. [ 59 ] Ms. Peters testified that she recognized the photo that she identified during this photo line-up and that it was a photo of C.Y. She was asked in her examination in chief when she looked at the photograph why she identified that photo.

She answered that she said “yes” because “it’s C.Y.” and then confirmed that he was the person who came into her house. She testified that she took a little time in saying “yes” because she was thinking “why did he do it?” and taking in his picture. In cross-examination Ms. Peters denied the suggestion that she couldn’t instantly pick C.Y. out in the photo line-up. She said that she instantly knew it was C.Y. but took longer to look at the picture and digest it because she was more upset with C.Y. because he was older than the other three or at least two of them.

She added that she had seen C.Y. at her house and that that is how she knew it was him. The Evidence of T.F.

[ 60 ] T.F. was called by Mr. Stastny on the voir dire and for the trial. He was an extremely reluctant witness and gave very short answers, often only when prompted a number of times. He made it very clear that he did not want to testify and that he did not know why he had been subpoenaed. Eventually I advised him that if he failed to answer questions to the best of his ability, I would have no alternative but to find him in contempt. This did not seem to make much of a difference. Generally, however, when counsel persisted, he would give at least a “yes” or “no” answer to a question. [ 61 ] Mr.

T.F. pleaded guilty in Youth Court to the robbery of Ms. Peters, to using an imitation firearm in the commission of that robbery and to the forcible confinement of Ms. Peters. Mr. T.F. claimed that his firearm was an imitation although he could not give any specifics as to how it came into his possession. When pressed Mr. T.F. testified that he picked this firearm up somewhere where he found it lying on the ground in the neighbourhood. He said this gun did not fire bullets. [ 62 ] When Mr. T.F. was asked if he knew if anyone was dealing drugs from Ms. Peters’ house he simply said he had no information. Mr.

T.F. testified that he knows Mr. Brown but not as “Kush”. He testified that he knows him as Chaddrick, that he knows him from the neighbourhood, and they had hung out before although he denied they were friends. As for Mr. Hersi, he said that he knows him as “Yahye” and denied knowing him as C.Y. or by any other nickname. They had hung out before as well. Mr. T.F. denied hanging out with either of these defendants at Ms. Peters’ house. [ 63 ] After some persistence by Ms. Stanford, Mr. T.F. finally admitted that the persons he did the robbery of Ms.

Peters with were the other persons he was charged with and that they were R., Kush and C.Y. He was then asked about the defendants in the prisoner’s dock and admitted that he was pretty sure Mr. Brown was “Kush” and when asked if Mr. Hersi was C.Y. he answered “Yes, I guess so”. In re-examination he said that he did not know Mr. Hersi as C.Y. and he didn’t think he had ever heard anyone call him by that name. [ 64 ] Mr. T.F. initially testified that the group was carrying imitation firearms, but later it was clear that he really had no information about the other firearms. He never touched them or tested them.

In re-examination Mr. T.F. said that he was told by the others that their guns were fake. He agreed that C.Y. used what appeared to be a gun during the robbery as did R. and that Mr. Brown did not have a gun. The Evidence of Yahye Hersi [ 65 ] Mr. Hersi was 19 years old at the time and he described the circumstances leading to his arrest. He grew up in the Lawrence Heights area until the end of 2011 when he moved to the Kipling and Eglinton area which is about a fifteen minute drive away. This is where he was living at the time of his arrest.

At the time he had a cousin who lived in Dorney Court that he visited two to three times a week and an aunt that lived at Cather Court, which is also in the area. [ 66 ] Mr. Hersi denied being chased by Officer Samson. He drew and marked a diagram as well of the area. He recalled being part of a group and seeing the officers drive by. According to Mr. Hersi the group did not start to disperse until someone said that the “cops” were on foot. Then everybody scattered. He was in the alleyway with Kid. He does not know Kid by his real name. According to Mr.

Hersi he walked into Amaranth Court and saw Officer Samson after taking only a couple of steps after the group scattered. He said the officer would not have been able to see him behind the townhouse. When he saw that one of the officers waved he then started walking towards the officer. Mr. Hersi denied ever running as alleged by Officers Samson and Dolghii. Mr. Hersi denied running around the corner or “busting” the corner; which is what he told police. He said if had “bust the corner” he would have been gone. [ 67 ] According to Mr.

Hersi, as he was walking towards Officer Samson he realized that he had two cell phones in the left pocket of his vest. He testified that a person known as “Kid” slipped the phones into his pocket. Mr. Hersi was clear in his evidence that he only realized that he had cell phones in his pocket when he put his hands in his pocket after he started walking and after he saw Officer Samson. He had no idea they were in his pocket before. He testified that he would not have taken the phones if he had known Kid was giving them to him.

If he had he would have run as well and thrown them away because he was on a condition not to have a cell phone. Mr. Hersi said that from where he was he could have run from police and that he knows a lot of ways towards the mall where he could have run. However, in Mr. Hersi’s statement to police he said that Kid gave the phones to him on the spot to put in his pocket “when we bust the corner”. [ 68 ] Mr. Hersi testified that he took the phones out of his pocket and gave them to Officer Samson because he had nothing to hide. It was suggested to Mr.

Hersi that it was not smart for him to put his hands in the pocket of his vest once he saw Officer Samson as it would be better for him to keep his hands in view. His repeated that he had nothing to hide. Mr. Hersi testified that at this point he told Officer Samson that he was on condition not to have cell phones. He was then handcuffed.

[ 69 ] Mr. Hersi alleges that after he gave his name he was told that he was wanted on a surety warrant and that there were a bunch of charges against him including home invasion and armed robbery. Mr. Hersi testified that he was asked to take off his hat and Officer Samson commented on his afro hair. He was then told to open his mouth, asked to smile and asked for his name. At this point Officer Dolghii was coming towards them. [ 70 ] Mr. Hersi did not know anything about this person with the nickname “Kid”. He did not know his government name, his age or where he lives.

All he knew was that he has a younger brother that goes to school or works. He said he had known him for about a year to see him in the neighbourhood. [ 71 ] When Mr. Hersi was questioned as to how he knew it was Kid who slipped the cell phones into his pocket he testified that he saw Kid with these phones in his hands. Although he agreed that there are a lot of black cell phones, he suggested that he recognized these particular phones as belonging to Kid. He knew that Kid had a Public Mobile phone. He admitted in cross-examination however, that he had no reason to pay attention to those phones.

In re-examination Mr. Hersi testified for the first time that before the police arrived they were playing music on the phones that Kid had. Mr. Hersi testified that when he arrived at the police station he was able to get a good look at the phones and said that they were Kid’s phones. [ 72 ] Mr. Hersi admitted knowing Ms. Peters although he said he did not know her as a friend. He met her one day when he went to buy weed from Mr. Bradshaw. He testified that he had seen Ms. Peters at the mall as well but would not say “hi” to her. Mr. Hersi admitted that he was able to recognize Ms.

Peters and that she would recognize him. [ 73 ] According to Mr. Hersi, he was only at Ms. Peters’ place in Bagot Court on four occasions; he could not say for sure when he was last there but said that it was always to buy weed from Mr. Bradshaw. He later testified that he went to Ms. Peters’ house to buy marihuana in July/August and after the end of September he did not go back there. Mr. Hersi admitted that he would see Ms. Peters at the house with Mr. Bradshaw. When Mr. Bradshaw sold marihuana it would be weighed on the scale that they kept in the kitchen. According to Mr.

Hersi, if you bought a Century Sam and weed from Mr. Bradshaw you could smoke the “blunt” in their basement. He did this on three of the four occasions and there was always a group of people in the basement every time he went there. According to Mr. Hersi, Ms. Peters and Mr. Bradshaw made their house a neighbourhood hangout. When he did stay to smoke his weed Mr. Bradshaw and Ms. Peters were also there smoking weed. He testified that on one of the four occasions Mr. Bradshaw was not there and Ms. Peters sold him weed and a Century Sam. He did not stay that time to smoke the blunt. Mr.

Hersi admitted that selling marihuana is a cash business and that he was aware there would be potentially a fair amount of cash in Ms. Peters’ house. [ 74 ] Mr. Hersi denied knowing the relationship between Ms. Peters and Mr. Bradshaw. Mr. Hersi denied ever meeting Mr. Osman and said he did not know if Mr. Osman was dealing drugs in the Lawrence Heights area. [ 75 ] Mr. Hersi also admitted that he knows the other three men alleged to have been involved in the robbery. With respect to the person Ms. Peters’ identified as “Kush”, namely Chaddrick Brown, Mr. Hersi testified that he knows him as Chaddrick.

He knows the person identified by Ms. Peters as R. as I.G.; he had heard the nickname R. but that is not what he called him. He knows T.F. by his first name. During his cross-examination Mr. Hersi admitted that when he was shown a picture of Mr. Brown he told police that he had seen him before but he did not know him by name. He also told police he knew R. by his nickname and did not know his real name. [ 76 ] Mr. Hersi testified that he is not C.Y. He denied being at Ms. Peters’ house showing off a firearm about a month prior to the incident and denied ever having any firearms on his person.

He lives with his mother and father and testified that there are no firearms in his house; there was never any search of his house. Mr. Hersi denied ever seeing any guns in Lawrence Heights, even imitation guns. [ 77 ] In his evidence in chief Mr. Hersi said that he was “pretty sure” that he was at home during the afternoon of March 18, 2012. He did not think that he left his house. At the time he was on house arrest and was subject to a 9 p.m. curfew. He said the only time he may have gone out was to get something to eat.

He then said he was pretty sure that he did leave to go to a plaza around his area to have something to eat and that he came back to the house. Mr. Hersi also denied making any phone calls on the cell phones found in his possession at the time of his arrest and he denied having possession of those phones before March 20 th . [ 78 ] In cross-examination by Ms. Stanford, Mr. Hersi confirmed that he was home all day on March 18 th and that his mother, who he is still in touch with and who is in good health, could confirm this. He said she would have no difficulty coming to testify that he was home on that day.

It was put to him that he was not home and he responded that he was 100% sure that he was home all day save for having a meal at the plaza and possibly going out to have a cigarette. Mr. Hersi’s statement to police was then put to him where he told police that he had come to his house at 9 p.m. and before that he was in the area of Lawrence Heights. When this inconsistency was put to Mr. Hersi he stated that this was why he had said he didn’t remember where he was a year ago and whether he left the house or not.

That had not been his evidence at all. [ 79 ] Ms. Stanford reviewed the description that Ms. Peters had given to police about C.Y. Mr. Hersi admitted that in March 2012 he was just past his nineteenth birthday, that he is of Somolian descent and that he was skinny. He admitted to having semi-afro curly hair that was not too curly but said this was like a lot of Somolian people. Mr. Hersi said that he thought he was taller than six feet.

He testified that he has four gaps between his teeth but when I asked him to show me I observed that the biggest and most obvious gap was between his two upper front teeth. [ 80 ] When Ms. Stanford asked Mr. Hersi whether he could explain what she called the amazing coincidence of one of the cell phones in his pocket at the time of his arrest being attached to the number that Ms. Peters alleged threats came from, he said he guessed it was a setup but did not know by whom.

By this he was referring to the fact that Kid was on house arrest so presumably he was suggesting that Kid had set him up although he did not say this. Ms. Peters was never asked if she knew someone named Kid and there was never any suggestion in the evidence that a person named Kid was involved in the robbery or would have reason to threaten her. Analysis [ 81 ] I now turn to my analysis. Since Mr. Hersi testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) [2] apply. I must acquit Mr.

Hersi if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt.

In my analysis, I am not bound by the strict formulaic structure set out in W.(D.) , but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt. [3] [ 82 ] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr.

Hersi, I am entitled to consider it in the context of all of the other evidence. [4] However, I must remind myself that this is not a credibility contest. [5] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the Crown witnesses to that of Mr. Hersi. [6] [ 83 ] Although Mr. Brown did not testify, he did call evidence; Mr. T.F. and so W.D. applies to the analysis of that evidence and the charges against Mr. Brown as well. Credibility Assessments (

a) Yahye Hersi [ 84 ] There was nothing about Mr. Hersi’s demeanour that assists in determining his credibility. However, as I will come to, his evidence changed materially when he was challenged and I have concluded that I cannot believe much of his evidence and that some of it was simply incredible. [ 85 ] Mr. Hersi has a criminal record as follows: - August 13, 2011 – Mr. Hersi was found guilty of breaching his recognizance and sentenced to seven days and five days pre-trial custody; - December 1, 2011 – Mr.

Hersi pleaded guilty to breach of recognizance and received six days pre-trial custody and nine months probation; - August 30, 2012 – Mr. Hersi pleaded guilty to possession of cocaine for the purpose of trafficking. He testified that at the time he had nowhere to live and so had gone to live with a friend. He claimed not to have known that there was cocaine in the apartment but then when he was asked if he knew that people in the apartment were involved in cocaine he said “yes”. Mr.

Hersi denied that the drugs found in the house were his but said that he pleaded guilty because the police said the cocaine came out of his pocket. He figured with his word against the officers, the officers would be believed. [ 86 ] I have doubts about Mr. Hersi’s evidence as to why he pleaded guilty to the cocaine charge but that conviction is not relevant to his credibility per se. The other convictions suggest disrespect for court orders but I find they are not of much assistance in

determining the credibility of Mr. Hersi. [ 87 ] What I found most significant in assessing Mr. Hersi’s credibility are the serious inconsistencies between Mr. Hersi’s evidence at trial and his statement to police as follows: (

i) Ms. Stanford impeached Mr. Hersi on his statement to police as to how he got the cell phones which, as I have reviewed, was materially different than his evidence at trial. Also in his statement to police he said that Kid gave the phones to him “when we bust the corner” which with the word “bust” suggests that they were both running. When these differences were put to Mr. Hersi at trial he agreed that there was a difference in his evidence but said he wasn’t given any choice because the two officers who took the statement had beat and kicked him multiple times before he gave the statement.

He also alleged that they put words in his mouth and told him that if he said something they would beat him up even more. This explanation was in my view totally fabricated. There had never been any hint of such an issue during the voir dire . It seems that Mr. Hersi is prepared to make up serious allegations of police misconduct when he feels it will help him explain a problem in his evidence. (ii) Ms. Stanford put a portion of Mr. Hersi’s statement to police to him when he was shown a picture of Mr. Brown and he denied knowing him by name. Mr.

Hersi denied changing his story at trial and said he was nervous when he was speaking to police and “said stuff that he didn’t mean”. This explanation was incredible. (iii) With respect to Mr. Hersi’s statement to police that he knew a person as R. and did not know his real name, which contradicted his evidence at trial, again his explanation for the difference was that he was nervous at the time. He also testified that he did not see this “as a big deal”, suggesting a casual attitude to being accurate when he testified. I agree with Ms. Stanford that Mr.

Hersi lied to police and at trial about the extent to which he knew Mr. Brown and Mr. I.G. and how he knew them and that his likely purpose in doing so was to try to distance himself from these men and the use of nicknames. (iv) Ms. Stanford put a portion of Mr. Hersi’s statement to police to him where he stated that he had no idea why Ms. Peters had picked out “my name”. For at least one of these occasions the officers had put to Mr. Hersi that Ms. Peters had identified him as “C.Y.”. Ms. Stanford’s argument was that Mr.

Hersi had slipped when he spoke to police by referring to C.Y. as his “name.” When this was suggested to Mr. Hersi at trial he responded that the officers were telling him that Yahye Hersi was C.Y. In argument Mr. Scandiffio submitted that Mr. Hersi had been told eight times by police that Ms. Peters said he was C.Y. That however, is not in evidence as the transcript is not in evidence. Mr. Scandiffio also submitted that Mr. Hersi had been “interrogated” for 73 minutes and that there was a “straight attack” on him.

These submissions suggest issues with the voluntariness of the statement even though voluntariness was conceded by Mr. Scandiffio after all the police officers involved were called on the voir dire . It is also alleged that the officers told Mr. Hersi that T.F., Kush and R. used his “name”; again there is no evidence of this. Finally, Mr. Scandiffio submitted that I should consider what Mr. Hersi meant by his “name”. Although I think there is some merit to the position taken by Ms. Stanford, Mr. Hersi’s explanation was not implausible.

I have, therefore, not considered this statement as an implicit admission that Mr. Hersi is C.Y. (

v) I have already set out the inconsistencies in Mr. Hersi’s evidence about where he was at the time of the robbery. He was clearly not being truthful about his whereabouts on the day of the robbery which is a very significant inconsistency. [ 88 ] Mr. Scandiffio made a number of submissions in support of his position that I should find that the evidence of Mr. Hersi is true or demonstrates his innocence. He began his submission by stating that Mr. Hersi had demonstrated his innocence by taking the stand given the code of silence in Lawrence Heights.

There are a number of problems with this submission including the fact that since Mr. Hersi denied he was present for the robbery, he did not implicate himself or any one else. In any event this submission applies to Ms. Peters with equal force. Although she moved from the area as a result of this incident, Mr. Hersi was not living there at the time either. [ 89 ] Mr. Scandiffio spent some time in his submissions trying to reconcile the evidence of Officers Samson and Dolghii and the evidence of Mr. Hersi in support of his position that Mr. Hersi is telling the truth when he says that he did not run from police.

He submitted that this was important to show that Mr. Hersi had no fear of police and nothing to hide and as such demonstrated his innocence to these charges. Mr. Scandiffio submitted that if Mr. Hersi knew about the phones in his pocket he could have run or thrown them away and that as he knew the neighbourhood he would have known where to run. Instead, when Officer Samson asked him to come over he walked towards him. [ 90 ] Setting aside whether or not there is merit to Mr.

Scandiffio’s premise, it is impossible to reconcile the evidence as he attempted to do because the officers were both very clear that they actually saw Mr. Hersi run from them. They did not base this evidence on assumptions about what he was doing when he was out of their sight for 30 seconds. Furthermore this is a specific area where Mr. Hersi’s evidence changed materially at trial. I prefer the evidence of Officers Samson and Dolghii on this issue, which was not challenged when they testified. They both said that Mr. Hersi ran and that he was chased by Officer Samson. [ 91 ] Mr.

Scandiffio also relies on the fact that Mr. Hersi immediately told Officer Samson about the cell phones. That is true but again I do not see how that establishes that Mr. Hersi is innocent of these charges. In any event given the inconsistencies in his evidence, I do not accept Mr. Hersi’s evidence as to how he came into possession of those cell phones. [ 92 ] For these reasons I have serious concerns about the credibility of Mr. Hersi and I find that I do not believe the evidence he gave me at trial denying his involvement in the robbery, nor does it raise a reasonable doubt.

(

b) T.F. [ 93 ] Ms. Stanford submitted that for the most part Mr. T.F.’s evidence was at best evasive and at worst an outright lie. It is her position that he was doing his best to help and protect his friends and that since this was his intent, I should only accept his evidence when his evidence contradicted the interests of his friends. [ 94 ] To the extent that Mr. T.F. gave exculpatory evidence supporting the defence of either defendant, it need only raise a reasonable doubt. To the extent his evidence was incriminating of either defendant, I have considered it with caution. I have already commented on Mr.

T.F.’s extreme reluctance to testify. I agree with Ms. Stanford that he did not want to give any evidence that would hurt his friends and in particular, the defendants. I therefore agree with Ms. Stanford that the evidence that he gave that is adverse to their position, which came only very reluctantly, is likely true. However, I could not consider Mr. T.F. a reliable witness and so I must consider his evidence very carefully. I have decided not to place much weight on it. (

c) The Police Officers [ 95 ] There was no suggestion during the cross-examination of any of the officers that they were being untruthful or that their evidence was not reliable. However during his closing submissions Mr. Scandiffio challenged the evidence of Officers Samson and Dolghii that Mr. Hersi was running at any time before his arrest. Given the serious concerns I have about the credibility of Mr. Hersi, as I have already said, I prefer the evidence of the officers on this issue. Otherwise, I also found the evidence of the officers credible and reliable. (

d) Latoya Peters [ 96 ] Ms. Stanford submitted that Ms. Peters was a very credible witness and that she was not shaken in any substantial way on her evidence concerning the details of the robbery, the identification of Mr. Hersi and the threats that came thereafter. It is her position that her evidence in this regard was clear, credible, consistent, both internally and externally, and corroborated. She also pointed out that Ms. Peters did not embellish her evidence. For example, although she testified that T.F. pointed the gun towards her daughter, she did not suggest the guns were ever pointed at her or Mr.

Osman. [ 97 ] It is Ms. Stanford’s position that the only real area of concern is the possibility of illegal drug activity taking place at 87 Bagot Court. She submitted that one can understand Ms. Peters’ reluctance to admit that there was drug dealing from her home particularly if she was on the periphery. The only direct evidence that she personally was selling drugs is the evidence of Mr. Hersi. [ 98 ] Mr. Stastny submitted that there are major shortcomings with the credibility of Ms.

Peters although he acknowledged that she was telling the truth about persons entering her home under false pretenses, that she was the victim of a robbery that occurred in her home and that she expressed genuine emotion in the 911 call. He also conceded that her evidence concerning the firearms she saw at the time of the robbery was fair. He submitted however, that her credibility was in issue with respect to the “finer details”. His main submission was that Ms. Peters was not truthful in her denial that drugs were being sold from her home and he argued that Ms.

Peters is capable of lying to the police and to the court when it suits her interests. On this basis he submitted that evidence of what Ms. Peters alleges that she saw with respect to guns before the robbery would be unsafe to rely upon. [ 99 ] Ms. Kideckel adopted the submissions of Mr. Stastny. She also submitted that the evidence of Ms. Peters should cause the court much concern and that it was exaggerated and full of contradiction, implausible and incredible. Ms. Kideckel submitted it is difficult to believe that Ms. Peters’ son would not wake up and that she would leave the home without him.

I do not accept this submission. First of all there was never any suggestion in the evidence that Ms. Peters’ son did wake up; certainly this was not put to Ms. Peters. Furthermore, from the surveillance video it is obvious that she only had her daughter with her. This is therefore not an attack on Mr. Peters as a witness but rather as a mother. I do not see how it is relevant but in any event, in my view it is unfair to challenge Ms. Peters’ decision to leave the house with her daughter and let her son lie sleeping in the living room.

Given the genuine terror in her voice during the 911 call it is impossible to second guess her after the fact. She did what she believed to be in the best interests of her children, namely leave the house with her daughter and call police. [ 100 ] There were some inconsistencies in the evidence of Ms. Peters that Ms. Kideckel relied upon. I have already referred to the issue of who was wearing a baseball cap.

Considering the accuracy of the detailed description she did give to police, being mistaken about who was wearing a baseball cap is not surprising and her correction at trial was what I would expect from an honest witness. [ 101 ] In cross-examination Ms. Peters denied telling the police that her house was a chill house. She was taken to her preliminary hearing evidence where she testified that people, including C.Y., used to “take my house as a ‘chill spot’” and that this occurred from the end of September to the end of October. When it was suggested this was an inconsistency Ms.

Peters testified that at the preliminary hearing she said that they “took” her house as a “chill house” but that she did not see it as a chill house. She saw it as a family house. I accept that explanation even though as I will come to, I find it likely that her home was being used for the sale and smoking of marihuana. I expect that was more likely the result of the men Ms. Peters was living with although she clearly knew about it and

participated in it. [ 102 ] Ms. Kideckel also submitted that Ms. Peters’ evidence concerning guns during the robbery made no sense. She argued that Ms. Peters alleged that C.Y. was holding a gun and since he is right-handed he must have been holding it in his right hand. Ms. Peters testified that he slapped the left cheek of Mr. Osman with an open hand. Ms. Kideckel submitted that he could not have done that without using his right hand and yet Ms. Peters presented herself as being sure of these kinds of details.

In my view these types of inconsistencies are ones that naturally arise from a witness doing her best to tell the truth about a traumatic incident that took place almost a year ago. [ 103 ] Ms. Kideckel relied on the statement by Ms. Peters in the 911 call as to how well she knew C.Y. and submitted that her evidence was inconsistent on this issue at trial. Mr. Stastny also submitted that in the 911 call Ms. Peters was evasive as to how she knew the people involved in the robbery and suggested that she did not want to admit how she did know them.

I agree there is an inconsistency there although it is more in the form of an understatement of how well she knew these men. I accept Ms. Stanford’s submission that although what Ms. Peters told the 911 operator was true she did not tell the operator everything. She had seen these men in the neighbourhood before, they were not her friends. However, as I will come to, I do not accept her statement that she did not chill with them. This, however, was only a small part of the call. Ms.

Peters may have been concerned about disclosing that her house was a place where drugs were sold from or may have only said what she did because of the traumatic experience of the robbery. Either way I do not find it significant and in any event, given the admissions of Mr. Hersi, it is clear that Ms. Peters knew him well enough to recognize him if he was in fact at the robbery. [ 104 ] I agree with Defence counsel that Ms. Peters was not entirely truthful when she testified about whether drugs were being dealt out of her home. Her evidence about selling only Century Sam cigars made no sense.

She admitted smoking marihuana recreationally and testified that is why she had the scale. Ms. Peters denied that people were coming to her house to buy drugs and denied that marihuana was being sold from her house or that this was why her house became a “chill spot”. In that regard I prefer the evidence of Mr. Hersi; his evidence makes much more sense and explains why Ms. Peters still had Century Sams that she would sell from her home and why her house became a chill spot. In fact at one point in her evidence when being questioned by Mr. Stastny, Ms.

Peters did say that they were selling “blunts” which had already been described in the evidence as a marihuana cigarette made from the paper of a Century Sam cigar. Because this evidence appeared to be at odds with her evidence that they were only selling Century Sams without marihuana, I asked Ms. Peters a question. She responded that she used the term “blunt” meaning just a Century Sam. I do not accept that evidence and believe she was trying to justify her mix up in using the term blunt when she did not intend to. I also agree with Mr.

Stastny that the fact drugs were being dealt out of her home is corroborated by a post she admitted that she made on Twitter after the robbery and in particular her reference to “stacks”; which I will come to. [ 105 ] There is also the inconsistency in Ms. Peters’ evidence generally concerning the Twitter messages following the robbery. In her evidence in chief Ms. Peters admitted that she posted something on Twitter the day of the robbery or the day after. She was not sure of exactly what she said but it was along the lines of querying how someone could do a home invasion with two children there.

She testified that after she posted it I.G.’s brother said something ignorant to her and so she took it down. Mr. Stastny showed Ms. Peters copies of messages that she had posted on Twitter. She recognized them and gave evidence about them. Although I appreciate, as submitted by Ms. Stanford, that because we do not have all the tweets, there is a question of context to consider, in my view these tweets are very much at odds with Ms. Peters’ evidence in chief, even if I accept that they were in response to a tweet that she was a “fucking rat”. [ 106 ] In the first message Ms.

Peters tweeted that they were “still sitting on those stacks you wanted to eat us for”. “Stacks” means money and “eat” means to rob. She denied that stacks was a reference to money from selling drugs and said that it was a reference to legal money she got from OSAP as she was a student and the child tax benefit. I do not accept that evidence; there would be no reason for her to be bragging about this if the money was legal. I believe that Ms.

Peters had a better recollection of these messages when she testified in chief than she admitted to, likely because she would not expect to be confronted with copies of them. This is consistent with the fact that she did not want to admit any knowledge of her house being used as a place for the sale of drugs. [ 107 ] Although for the reasons given I do not accept parts of Ms. Peters’ evidence, the areas where I do not accept her evidence can all be explained by her reluctance to admit that her house was being used to sell marihuana.

Although I do not make light of the fact she was not truthful to the court in these areas, I do not find that this means that I should reject all of her evidence. I can understand why she would not want to admit knowledge of illegal activity in her home. Overall, in all other areas, I found Ms. Peters to be a truthful and credible witness particularly with respect to the details of the robbery and the description of the men who committed it. Furthermore, as I will come to, given her prior interactions with Mr. Brown and Mr. Hersi I find her identification evidence reliable .

Findings With Respect to Chaddrick Brown (

a) The Alleged Robbery with a Firearm [ 108 ] Ms. Stanford submitted that she had proven beyond a reasonable doubt that Mr. Hersi used a real gun in the robbery and that Mr. Brown was a party to the robbery and the use of a firearm. She conceded that once the men were inside Ms. Peters’ house, Mr. Brown’s sole role was searching the kitchen and that he did not participate in any threats and did not have a firearm or order anyone to go

to the basement. She queried however, whether this was a joint enterprise among the four men as they are seen talking together on thesurveillance video just before the robbery and all four were wearing gloves during the robbery according to the evidence of Ms. Peters.Ms. Stanford submitted that it strained credibility to think that Mr. Brown would not know the others were armed given that there was adiscussion among the four men so close in time to the actual robbery. Furthermore, Mr. Brown must have known about the guns oncethe guns were drawn. On the evidence of Ms. Peters, Mr.

T.F. pulled out a gun right by the kitchen and Mr. Brown must have seen this.Nevertheless, Mr. Brown continued searching the kitchen. In fact she argued that he was able to do so because of the forcibleconfinement of Ms. Peters and Mr. Osman. As I will come to, Ms. Stanford relied on a number of cases in support of her position that thefirearm used by C.Y. was real. [109] Mr. Stastny conceded that Mr. Brown was a party to the robbery but submitted that the Crown had not proven beyond areasonable doubt that he knew anyone had a real firearm.

He argued that many of the cases provided by the Crown in support of herposition that the firearm was real are cases where the court has deferred to findings of fact of the trial judge. [110] As Ms. Stanford submitted, the evidence of a robbery is overwhelming. The 911 call was made at the time and given thedemeanour of Ms. Peters on that call it seems very unlikely that she had any time to think about fabricating anything as she was inhysterics. That could affect the reliability of her evidence in respect of some details, but not in my view the essence of what she told theoperator about a robbery occurring.

Furthermore, the evidence of Ms. Peters that there was a robbery was not contested. In addition sinceI have found that marihuana was being sold at 87 Bagot and that this was common knowledge in the neighbourhood; it does provide amotive for the robbery in that as Mr. Hersi conceded, selling drugs would be a cash business. It also supports the evidence of Ms. Petersthat C.Y. told Mr. Osman that he couldn’t “hussle” in the neighbourhood. That could also have been part of the motive. [111] The other evidence that corroborates Ms. Peters’ evidence of a robbery is the surveillance video.

Four young black men areseen very close to her home dressed virtually identically as she described in her evidence. She identified C.Y. or Mr. Hersi as the onewearing a very dark navy blue jacket and a baseball cap. On the issue of the cap she testified at trial that having now seen the tape shewas mistaken as to who was wearing the baseball cap. There is no evidence about whether or not she had seen the surveillance videobefore; certainly if she had she appeared to have forgotten it. I have not found that inconsistency to be significant. Furthermore as I havealready stated, Mr. Stastny conceded that Mr.

Brown participated in a robbery as did Mr. T.F.. [112] For these reasons I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Brown was a party to therobbery as a principal in that he was ransacking Ms. Peters’ kitchen. [113] The cases relied upon by the Crown in support of her position that a real firearm was used are as follows: (

i) R. v. Richards, (ON CA), [2001] O.J. No. 2286 (Ont. C.A.). At paragraph 4 the court noted that havingregard to the description of the gun given by the witnesses, the fact that the witnesses were ordered to get down on the floor, had a gunpressed to their head, were threatened, and the modus operandi indicating that the accused had ready access to guns called up fromdifferent locations prior to the subsequent robbery, left it was open to the trial judge to come to the conclusion that the gun used by theappellant was a firearm. (ii) R. v. Mills, [2001] O.J. No. 3675 (S.C.J.).

In this case the complainant described what appeared to her to be a sawed-offshotgun. She did not know anything about guns, she only had general familiarity with firearms that a person in Canada might pick up inordinary society, there was no evidence to suggest that what she saw was not a firearm and the accused was using it to intimidatesuggesting he was using it as a firearm.

At para. 19 Justice Eberhard stated that “where all the circumstances lead to an inference that theitem looking like a firearm is a firearm, it is open to the trier of fact to draw such an inference.” (Emphasis added) She noted that in thecase before her the operability of the shotgun was never really made an issue and she drew the inference that the item being brandished,causing alarm and fear, was a firearm. (iii) R. v. Carlson, [2002] O.J. No. 1884 (Ont. C.A.).

The court found that taken cumulatively the following items of evidencecould reasonably support a finding that the handgun in issue was a firearm: the evidence included the fact that during the course of therobbery the appellant brandished the gun, waved it around and eventually pointed it at the back of an employee’s head all the whilescreaming that this was a “hold up” and demanding money, that various witnesses described the gun as “small” and “black” with a 6-8inch muzzle and the fact that the appellant had access to guns according to the combined testimony of his accomplice and his commonlaw spouse.

With respect to this case Ms. Stanford pointed out that Ms. Peters testified that Mr. T.F. pointed his gun at her daughter andtold her to shut up. She also relies on the prior incident when he was bragging about a different gun, which she argues means that Mr.Hersi had access to guns. (iv) R. v. Charbonneau, (ON CA), [2004] O.J. No. 1503 (Ont. C.A.).

The court noted that the trial judge hadthe evidence of the complainant’s clear belief that the gun was real although she could not tell for certain, her description of the object,the appellant’s conduct in relation to it and his use of it together with the appellant’s threat to shoot while holding it. Furthermore therewas a complete absence of evidence to the contrary. The Court of Appeal concluded that this was a sufficient foundation to support thetrial judge’s finding that it was a handgun. [114] Mr. Stastny referred to the following cases:

(

i) R. v. Argueta , 2011 ONCJ 576 . In this case Justice Watson concluded that the Crown had not satisfied its burden of establishing beyond a reasonable doubt that the object was a real firearm. The evidence before the court was considerably stronger than the case at bar save that the court noted that there was no evidence that the defendant had ready access to guns. Justice Watson stated however, at para. 12(6) that: …in my experience in the courts, it is not uncommon to be advised of imitation firearms that appear to be real that have been used in the commission of violent crimes.

Although the gun was cocked once and cartridges were seen by at least one victim, and one victim indicated that the defendant attempted to show him where the cartridges were, absent expert evidence, I am unable to draw any definitive conclusions from this evidence as to the nature of the firearm on the totality of the evidence. [ 115 ] No firearms were recovered and so I have only the evidence of Mr. T.F. and Ms. Peters on this issue. Mr. T.F. testified that he had been told the guns were fake and that his gun was fake. His evidence about his own gun was dubious as he could not explain how he got his gun.

It defies belief that he would not be able to give any details about that. His evidence about the other guns was hearsay and not detailed enough to ascertain reliability. I therefore do not rely on this evidence. [ 116 ] That leaves the evidence of Ms. Peters. There is no question that Ms. Peters is not able to tell the difference between a real gun and an imitation gun, just by looking at them. She has never handled any gun and certainly did not handle any of the guns she alleges were used during the robbery. Ms. Stanford relies on the evidence of Ms.

Peters that on an earlier occasion she saw C.Y. in her front yard bragging about his “new ting” and argues that Mr. Hersi would not brag about

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