) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 7891

CITATION : R. v. Paul Weeden, 2013 ONSC 7891 COURT FILE NO.: 2625/12 DATE: 20131219 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – PAUL WEEDEN Defendant ) ) ) ) ) ) ) ) S. Latimer, for the Provincial Crown M. Cremer, for the Defendant ) ) HEARD: October 7,8,9,10,15, 2013 TZIMAS J. Introduction [ 1 ] Paul Weeden is charged with the following three counts: a. unlawfully robbing Mario Avgerinos on September 23, 2011, contrary to s.344 of the Criminal Code of Canada ; b. using an imitation firearm contrary to s.85(2) (

a) of the Criminal Code of Canada , also on September 23, 2011; and c. possessing marijuana cannabis for the purposes of trafficking, on September 27, 2011, contrary to s.5(2) of the Controlled Drugs and Substances Act . [ 2 ] The alleged robbery is said to have occurred on September 23, 2011. It is further alleged that Paul Weeden, together with D.L. and a third individual who has never been identified, went to Mario Avgerinos’ apartment. One of the three knocked on the door. When Mr. Avgerinos opened the door, the three stormed into his apartment. Mr.

Avgerinos was held down by one of the three perpetrators with something that felt like an imitation gun. He was held down facing into a couch by one of the two perpetrators and could not see what was going on. The other two ran through the apartment and are said to have stolen a number of items. The incident did not last very long. [ 3 ] Mr. Avgerinos identified D.L. to the police to be one of the three perpetrators. The police arrested D.L. In response to his arrest, D.L. identified Mr. Weeden as the person who orchestrated the robbery. He said that Mr. Weeden asked him to identify Mr. Avgerinos’ apartment.

D.L. took Mr. Weeden and the other individual to the door but before he knew it, he was pushed into the events of the robbery. [ 4 ] A few days later, the police searched Mr. Weeden’s room at the apartment that he occupied with his mother. The police found marijuana, a cell phone, a baton, a Rogers phone bill and $1,710.00 in cash. [ 5 ] The Crown bears the onus of proving beyond a reasonable doubt that Mr. Weeden participated in the alleged robbery; that he used an imitation firearm in the course of the said robbery and that he also possessed marijuana cannabis for the purposes of trafficking.

EVIDENCE [ 6 ] To begin with, the parties agreed to the filing of an expert report that concluded that the substance that was found in Mr. Weeden’s room was marijuana and that it was possessed for the purposes of trafficking. [ 7 ] The Crown led evidence from five witnesses: Mr. Avgerinos, the complainant; D.L., one of the individuals who admitted to participating in the robbery; Officer Warren Matheson, who took a statement from D.L. and who executed the search warrant; Officer Warren Chase, who interviewed Mr. Weeden; and Constable Shane McFadden, who executed the search warrant on Mr. Weeden’s room.

The parties also filed on consent the Expert Report of Constable Carrabs regarding the seizure of the marijuana from Mr. Weeden’s room. Testimony of Mr. Avgerinos [ 8 ] Mr. Avgerinos is the complainant. It should be noted right at the outset that he appeared to be a reluctant witness. Although he

acknowledged reporting the robbery to the police, at the trial he made it clear that he had moved on in his own life from the alleged incident. He said that he had his own personal troubles with the law and his priority was to get his own life back on track. [ 9 ] That said, Mr. Avgerinos explained that he had been living at H[…] for 3-5 months prior to the incident. He said that the building management was asking him to leave the apartment because of unpaid rent. [ 10 ] Mr. Avgerinos explained that on the day of the incident, he was expecting D.L. to come for a visit.

He said that his roommate introduced him to D.L.. When he heard the knock on the door, he said that he saw D.L. through the peep hole and answered the door. As he opened the door, three people barged in. D.L. was the first to come in but he was followed by two others, who had their faces covered, either with bandanas or with their sweaters pulled over their faces. Mr. Avgerinos said that the person who came in after D.L. was carrying a gun, though he did not know if the gun was real. He said that he did not dwell on that fact. [ 11 ] Mr.

Avgerinos said that he did not know exactly what happened next because there was a lot of commotion and he was held face down on the couch. He recalled that D.L. and another man ran through the kitchen and his roommate’s room, while the third guy held him down with the gun. Mr. Avgerinos explained that he thought it was a gun because it was something metallic that touched his skin. He also said that D.L. kept telling him that everything would be ok. He said that the guys were asking him for money and for the weed.

He said that it was his roommate who was dealing marijuana and that he did not know anything about any money or any weed. [ 12 ] Mr. Avgerinos testified that the guys took his ring, his chain, his bracelet, his wallet containing his I.D. cards, an IBM ThinkPad, some other bracelets, his roommate’s chain and bracelet, some toonies, a scale, cell phones, and $1,500.00 he had hidden in his jeans located in his closet. Many of these items had sentimental value for Mr. Avgerinos. The guys told him not to look and as they departed they told him “Don’t chop on my block”. [ 13 ] Mr.

Avgerinos confirmed that just a week before the robbery he had completed an intermittent sentence because he was previously convicted on several counts of assault and assault with a weapon. He also stated that in May 2013 he was charged with possession of marijuana, driving dangerously, and flight from police. [ 14 ] A few weeks after his reporting of the robbery, Mr. Avgerinos was presented with a photo line-up. Mr. Avgerinos confirmed in his testimony that he did not identify Mr. Weeden as one of the perpetrators.

He further confirmed that he marked some other photographs of other individuals as possible suspects, but their characteristics and features did not resemble Mr. Weeden. Mr. Avgerinos seemed to be confused over the colour of D.L.’s hair, but otherwise he was able to identify D.L. as one of the three participants in the robbery. [ 15 ] On the subject of his statement to the police, Mr. Avgerinos could not remember all the details but he confirmed the statement he gave to the police to be true. [ 16 ] Mr.

Avgerinos indicated that following the robbery he was concerned about telling his mother what had happened, because the apartment was in his mother’s name. He said that the building management did not believe him when he reported the robbery. They thought that he was making the incident up to avoid paying the rent. When Mr. Avgerinos did tell his mother of his predicament, she told him to report the incident to the police, and so he did. [ 17 ] Immediately following the incident, Mr. Avgerinos called his girlfriend. He went to her house and spent the night there.

His roommate also came over to the girlfriend’s home. On the next day, and given his mom’s advice, Mr. Avgerinos attended at the Police Station at Square One to report the incident. Mr. Avgerinos explained that although his roommate came with him, he did not participate in the reporting. [ 18 ] Mr. Avgerinos also testified that the day after his reporting to the police, he returned to the apartment with his friends and his cousin to clean up. At some point, he went out to grab some smokes with his cousin and he saw D.L. at the construction site located on the premises of H[…]. Mr.

Avgerinos said that he pointed out D.L. to his cousin. He said that his cousin confronted D.L. about the incident. Mr. Avgerinos also said that he went up to D.L. and asked him why he would set him up. As far as Mr. Avgerinos was concerned, D.L. organized the robbery with a couple of his friends. Testimony of D.L. [ 19 ] D.L. testified that at the time of the alleged robbery he was only seventeen. He had just started living at H[…] Street, the apartment building where Mr. Avgerinos also lived and where the robbery is said to have occurred. D.L. pleaded guilty to the robbery in youth court. At the time of Mr.

Weeden’s trial, D.L. was 19 years old. He appeared to be quite anxious when he testified and made it clear to the court that he was doing everything he could to move on with his life. [ 20 ] D.L. testified that he met Mr. Weeden while he was smoking weed at a park, just behind the apartment building. They chatted briefly and told each other their names. D.L. said that he came to know that Mr. Weeden lived at the same building as his aunt but that he did not know much more about him. On that first occasion, D.L. said that he bought some weed from Mr. Weeden. D.L. ran into Mr. Weeden a second time. He said that Mr.

Weeden asked him where he purchased his weed. D.L. said that he purchased the weed from Mr. Avgerinos. [ 21 ] The following day, D.L. met Mr. Weeden and another guy in the lobby of the H[…] apartment building. D.L. said that Mr. Weeden asked him to identify to him and his friend Mr. Avgerinos’ apartment. D.L. said that in that moment, he understood that the request was limited to identifying the apartment. It did not occur to him that anything else was wrong or that he would be asked to do something different. [ 22 ] However, once in front of the apartment door, Mr. Weeden asked D.L. to knock on the door.

D.L. maintained that he still thought that they were just visiting Mr. Avgerinos. He said that when Mr. Avgerinos opened the door, Mr. Weeden and the other fellow pushed D.L. into the apartment and rushed in behind him. D.L. said that Mr. Avgerinos and his roommate were held down onto the floor. D.L. said that he was obliged to play along because he heard a “click” sound and feared for his safety. He stayed with Mr. Avgerinos and held

him down while one of the other guys ran through the apartment. He said that he heard about some money being taken but he did not see anyone taking anything out of the apartment. He also saw a television being smashed on the floor, although he did not say who smashed it. [ 23 ] When Mr. Weeden’s friend, the third guy, ran out of the apartment, so did D.L. and Mr. Weeden. D.L. returned to his aunt’s apartment. He did not call the police. [ 24 ] The following day, D.L. went to work at the construction site located close to the H[…] apartment. That was where he recently had started to work. Later in the day, Mr.

Avgerinos and some other guys, including one very big guy, came over to the construction site and yelled at D.L. to return the money that was taken. D.L. tried to ignore them because he said he did not take any money. However when the guys persisted, his boss came over to see what was going on. The guys told D.L. that they understood that he was working and told him that they would see him after work. [ 25 ] A short while later, D.L. was arrested by Officer Matheson on the H[…] grounds, by the construction site.

Before being taken to the police station, D.L. took Officer Matheson down to the apartment garage and identified a red car that he thought belonged to Mr. Weeden. At some point following his arrest, D.L. indicated that he realized that he was really in trouble. He began to worry that he was the only one who was being arrested and that if he did not tell the police of the other participants, he would go down for something he did not do. [ 26 ] Once at the police station, and after being fully informed of his rights, D.L. was interviewed by Officer Matheson. He was asked how the plan for the robbery was “hatched”.

D.L. gave confusing answers as to whether or not he knew Mr. Weeden’s first name. He referred to him as the “P” guy. In another instance, he said he did not even know if his name was Paul. He explained that once he told Mr. Weeden and the other fellow where he was buying his weed, things unfolded quickly and he could not “bitch out”. He tried to explain to Officer Matheson that what lay behind the robbery was a turf war between drug dealers. D.L. made reference to Mario “chopping weed” and that Mr. Weeden had taken exception to that activity. [ 27 ] D.L. was shown a photograph of Mr.

Weeden, at which point, D.L. confirmed Mr. Weeden’s identity. However, D.L. held firm that he did not know who the third person was. [ 28 ] D.L. also explained that everyone at the apartment complex knew that they could purchase weed at Mr. Avgerinos’ apartment. He said that the cameras outside of Mr. Avgerinos’ apartment were broken so there was no fear of getting caught. [ 29 ] On cross-examination, D.L. confirmed that he knew Mr. Avgerinos well. He agreed that Mr. Avgerinos was a friend that:

a) he had spent time at his apartment;

b) they listened to music together; and

c) that he came to understand that he could buy weed from Mr. Avgerinos. [ 30 ] D.L. also agreed that he could have identified Mr. Avgerinos’ apartment from a distance and left it at that. He also agreed that he did not have to respond to Mr. Weeden’s initial request, but he did. Finally, he said that he knocked on the door because he was told to knock on the door. In that moment, he did not feel that he could back out.

In short, with the benefit of hindsight, D.L. agreed that there was a lot that he could do differently but he did not at the time. [ 31 ] Also on cross, D.L. was challenged with the proposition that he was the one who set up the robbery and that he asked Mr. Weeden and the other fellow to assist him. He was the only one of the three who knew anything about Mr. Avgerinos’ apartment and Mr. Avgerinos’ activities. But he needed some help to carry out the robbery. D.L. denied that proposition. He said that he was scared, that he was an idiot, and that he was mistaken to hang out with those guys.

Testimony of Officer Matheson [ 32 ] Officer Matheson described two encounters with Mr. Avgerinos. His first contact was on September 24, 2011, when he took a statement from Mr. Avgerinos. He noted that both Mr. Avgerinos and his roommate attended at the station, but Mr. Avgerinos’ roommate did not wish to give any statement and would not agree to any attendance by the police at their apartment to obtain forensic evidence such as possible fingerprints and scene photos. [ 33 ] Mr. Avgerinos gave a statement that included a description of D.L.

He did not give any description of any individual with features resembling Mr. Weeden. Officer Matheson wrote out the statement. Mr. Avgerinos reviewed it and signed off on it. Given his roommate’s refusal to allow the police to view their apartment, Mr. Avgerinos did not agree to that request. [ 34 ] On the following day, Mr. Avgerinos contacted Officer Matheson to advise him that D.L. was working at the construction site located at the H[…] apartment grounds.

Officer Matheson attended there with Constable McFadden and they arrested D.L. and brought him to the police station. [ 35 ] Officer Matheson confirmed that before leaving H[…], D.L. pointed out a red car that he said belonged to one of the other participants in the robbery. Unprompted, D.L., who was very emotional, offered the name Paul as one of the other perpetrators. He said that he was black, that he lived on the 12th floor and that he was in his twenties. Officer Matheson also indicated he believed that Mr.

Avgerinos was on site when he attended at H[…] but that he did not speak with him. [ 36 ] Officer Matheson also confirmed that he did not create the photo line-up that Mr. Avgerinos reviewed. However, he was informed that Mr. Avgerinos selected D.L. from the line-up but he did not identify Mr. Weeden. [ 37 ] With respect to Mr. Weeden, Officer Matheson confirmed that he did not interview Mr. Weeden. Nor was Mr. Weeden at home when he attended at Mr. Weeden’s home to execute the search warrant on September 27, 2011. He also indicated that it was his understanding that Mr.

Weeden attended voluntarily at the police station soon after his room was searched. Testimony of Officer Warren Chase

[ 38 ] Officer Warren Chase interviewed Mr. Weeden. In that interview, Mr. Weeden was adamant that he did not own any gun, that he was not involved in any robbery and that he had stopped dealing in drugs and was working with his stepfather. Mr. Weeden made it clear that he thought he was under arrest on account of the marijuana that was found in his room. Even though Officer Chase explained that he was arrested because of a home invasion, a robbery and the use of a firearm, Mr. Weeden did not waiver from his position that he did not participate in any robbery.

He said that he did not have any friends and that he did not talk to anyone at the building. Testimony of Constable Shane McFadden [ 39 ] Constable McFadden testified on the items that were removed from Mr. Weeden’s room. He confirmed that Mr. Weeden’s mother, who was at the apartment, agreed to leave the apartment voluntarily. Mr. Weeden was not home. He also confirmed that the door to Mr. Weeden’s bedroom was damaged because the door was locked. The items of interest found in Mr.

Weeden’s room included: a Rogers TV Bill; a copy of a Crown Disclosure Document; marijuana in two separate ziplock bags, one consisting of marijuana in bulk and the other with small baggies of marijuana divided into individual portions; cash in the sum of $1,710.00; a metal object that expands to 2.5 ft.; and an LG cell phone. The cell phone was not tested to see if it even functioned properly. The Rogers Bill was in Mr. Weeden’s name for cable and internet. It was not a phone bill. [ 40 ] Officer McFadden confirmed that no laptops, firearms, or bullets were seized.

Nor did they seize any wallets, jewellery, bank cards, i.d. cards with Mr. Avgerinos’ name, or clothing. [ 41 ] Constable McFadden also confirmed that he was the one who prepared the photo line-up. He explained that a computer program is used to select the photos. Expert Report – Filed on Consent of the Parties [ 42 ] With respect to the marijuana seized, an Expert Report, prepared by Constable John Carrabs filed on the consent of the parties, identified the marijuana seized as “Cannabis Marijuana – 145.5 grams”, with a projected street value of $2,910.40.

Constable John Carrabs concluded that the marijuana seized was “not only for personal use but also for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs Substances Act . He based that conclusion on the observation of the various separate individual packages of marijuana and explained that there would be no reason to weigh and to package the marijuana into smaller amounts unless it was for the purposes of selling it. ANALYSIS [ 43 ] The Crown has the burden to prove beyond a reasonable doubt that Paul Weeden robbed Mr.

Avgerinos at his apartment; that he used an imitation firearm; and that he possessed marijuana for the purpose of trafficking. Five witnesses were called to provide evidence in support of the three charges. [ 44 ] For the reasons that follow, the Crown has not proven the first two counts beyond a reasonable doubt. The Defence consented to the Expert Report that reported on the quantity of the marijuana seized and that concluded that the marijuana was packaged for the purposes of trafficking. Mr.

Weeden turned himself in voluntarily to the police following the seizure of the marijuana and assumed that he was being arrested because of that seizure. [ 45 ] Turning to the first of the three counts, robbery contrary to s. 344 of the Criminal Code of Canada , the Crown essentially relies on the testimony of D.L. to support the charges against Mr. Weeden. Although the complainant, Mr. Avgerinos, testified, the Crown seemed to distance himself from that testimony. He suggested that Mr. Avgerinos had checked out of the prosecution and had little genuine interest to describe to the court what happened.

The implication seemed to be that Mr. Avgerinos’ evidence might not be reliable, although the Crown did not articulate that specific concern. [ 46 ] Despite the Crown’s own caution regarding Mr. Avgerinos’ testimony, the Crown was prepared to rely on his evidence that he heard one of the robbers say, “Don’t Chop on my Block”, to support the conclusion that the robbery was motivated by drug dealers’ turf battles. [ 47 ] The Crown argued that Mr. Weeden was a drug dealer at the same apartment complex as Mr. Avgerinos.

He did not appreciate that a newcomer to the neighbourhood, D.L., went to a supplier other than him for weed. Mr. Weeden wanted to deter Mr. Avgerinos from any further drug dealing activity. It stood to reason that the only way to do that was to rob him and his roommate and to threaten him with what resembled a handgun. Since D.L. was the one who had the dealings with Mr. Avgerinos, it made sense that Mr. Weeden would ask him to identify Mr. Avgerinos’ apartment. [ 48 ] Stated at its highest, the Crown based its theory of the case against Mr.

Weeden on the view that it was unlikely that D.L. was lying about the incident. D.L. was not a drug dealer. He did not have any reason to deter Mr. Avgerinos or to tell him “don’t chop on my block”. Had it been D.L. who planned the robbery, he would have taken measures to protect himself. For starters, since he was living and working at the apartment complex one would have expected him to conceal his identity by wearing a hood. He didn’t do that. In addition, from the start, he co-operated with the police and was candid on the stupidity of his own actions. [ 49 ] In contrast to the Crown, counsel for Mr.

Weeden raised six major areas of concern that would raise reasonable doubt over the allegations against Mr. Weeden. [ 50 ] First, counsel identified a number of significant differences on material points between D.L.’ s and Mr. Avgerinos’ testimony that could not be reconciled. [ 51 ] Second, the defence questioned whether the robbery even occurred. Mr. Avgerinos was facing financial difficulties and could not pay his rent. He faced eviction. If he could bring a police report to the building manager to the effect that he was robbed, he might be given a break for his inability to pay, or so Mr. Avgerinos thought.

[ 52 ] Third, the defence questioned D.L.’ s credibility and suggested that he was deliberately downplaying his role in the incident. It was not plausible that D.L. would be drawn into a robbery by people he did not know. [ 53 ] Fourth, even if a robbery occurred, the identification of Mr. Weeden raises at the very minimum, serious doubts. D.L. may have identified Mr. Weeden because he was new at H[…] and did not know anyone else besides Mr. Avgerinos. More significantly, Mr. Avgerinos did not identify Mr. Weeden in his review of the photo line-up. [ 54 ] Fifth, the defence questioned Mr.

Avgerinos’ overall implausibility of his complaint. This was an allegedly serious and traumatic experience and yet, once the robbers were gone, there was no immediate call to the police. What prompted the call to the police was not the invasion but the confrontation with the building manager and his mother’s advice on what to do. [ 55 ] Finally, the results of the police search of Mr. Weeden’s room bore no resemblance whatsoever with the items that Mr. Avgerinos said were stolen from his apartment. Although there was a substantial sum of money that was found in Mr.

Weeden’s apartment, it is impossible to say that the money was the money that was taken from Mr. Avgerinos. There was no probative value in either the different denominations that were found, or the total sum. [ 56 ] The Crown did not provide satisfactory responses to these doubts. Rather, the Crown spoke of the inferences that could be drawn from D.L.’s conduct and the plausibility of D.L.’s account of what happened as compared to Mr. Avgerinos’ account.

But plausibility is not enough to meet the onus of proving the charges beyond a reasonable doubt. [ 57 ] I agree with the Defence’s concerns about the differences in the testimony of Mr. Avgerinos and D.L. as they concerned the actual incident. Mr. Avgerinos, who confronted the three individuals seeking to enter his apartment, said that two of the three were masked or otherwise concealed their faces. He confirmed that D.L. did not hide his face. D.L. said that the faces were not concealed. Mr. Avgerinos described D.L. as an active and willing participant in the robbery.

D.L. said he was a reluctant participant and tried to keep Mr. Avgerinos calm. D.L. said that he did not see anyone take anything out of the apartment. Mr. Avgerinos enumerated a number of items that were stolen from his apartment. D.L. said that he merely held Mr. Avgerinos down, while at least one of the other two individuals ran through and searched the apartment. Mr. Avgerinos said he was held down by somebody using a metal implement resembling a gun. That person was not D.L. In fact, Mr. Avgerinos said that it was D.L. who ran through his apartment.

Finally, D.L. said that on the next day, some guys came over to the construction worksite and demanded the return of their money. Mr. Avgerinos said that he did not demand anything from D.L.. He said that he merely asked D.L. as to why he set him up. Rather, he called Officer Matheson to tell him where D.L. would be found. [ 58 ] These differences are difficult to reconcile. Mr. Avgerinos did come across as someone trying to put a distance between the incident in 2011 and his testimony at trial. There were many details that he said he could not remember.

But D.L. was also reluctant to testify and seemed to be very nervous during his testimony. Mr. Avgerinos’ testimony essentially supported the defence’s theory of D.L. being the mastermind behind the robbery, whereas D.L. described himself as the victim. [ 59 ] Strictly speaking, the question of who masterminded the robbery is not material to the question of whether Mr. Weeden participated in the robbery.

But given D.L.’s contention that he was a victim and that he was forced into the robbery by essentially two strangers, the question of who masterminded the robbery goes to D.L.’s own credibility. [ 60 ] A closer look at what might have been D.L.’s role raises further questions over his credibility. For starters, given D.L.’s evidence that everyone at H[…] knew of the Avgerinos apartment as a source for weed and that everyone also knew about the broken cameras, it puts into question his contention that Mr. Weeden required his help to identify that apartment. In other words, why would Mr.

Weeden need the assistance of a younger newcomer to the neighbourhood if the Avgerinos apartment and the broken cameras were notorious facts? [ 61 ] D.L.’s depiction of himself as a young and foolish innocent bystander, who unwittingly got into trouble, is at the very least suspect. D.L.’s explanation for his conduct might have been credible if he said he was threatened by Mr. Weeden or otherwise compelled to impress Mr. Weeden. But D.L. agreed that he did not have to tell Mr. Weeden where he got his supply of weed. He said that he was not threatened by Mr. Weeden.

Nor did he suggest that he wanted to impress or otherwise ingratiate himself with Mr. Weeden. That begs the question as to why D.L. would get involved with people who were essentially strangers. [ 62 ] In contrast to these observations, for somebody who tried to present himself as an ignorant victim, D.L. was actually very knowledgeable, especially given his very recent arrival in the neighbourhood. D.L. was the one who knew what would be found in the Avgerinos apartment. He knew the layout of the Avgerinos apartment and he knew that the cameras were broken outside of the Avgerinos apartment.

All that knowledge makes it plausible that D.L. was well positioned to initiate the robbery with the assistance of his friends. [ 63 ] Building on that possibility, once caught by the police, D.L. was very concerned that he not be left “holding the bag” or go down for the robbery. He clearly did not wish to have anything to do with the third participant and either deliberately or because he really did not know, he would not disclose the identity of that person. Perhaps he wished to protect both of his friends. Since he had some information about Mr.

Weeden, it was not that difficult to identify him as the mastermind of the incident. He had no loyalties to a stranger or at best an acquaintance, like Mr. Weeden. [ 64 ] These are considerations that raise reasonable doubts over D.L.’s version as to what happened in the Avgerinos apartment and whether Mr. Weeden was even there. D.L.’s compromised credibility puts Mr. Weeden’s participation in the alleged robbery into serious doubt. [ 65 ] These doubts are supplemented by difficulties over the identification of Mr. Weeden. I find it significant that when Mr.

Avgerinos was shown the photo line-up he identified D.L. without any difficulty but he did not pick out Mr. Weeden. Apart from the skin colour, the individuals he did identify, as possible suspects, did not resemble Mr. Weeden. Even with Mr. Avgerinos’ distancing himself from the robbery at the time of this trial, his review of the photo line-up occurred within a couple of weeks of the incident. At that time, Mr. Avgerinos was not distancing himself from the incident. His memory was clear and recent. This difficulty increases the

doubts insofar as they relate to the identification of Mr. Weeden as a participant in the robbery. [ 66 ] The Defence raised additional doubts over the actual occurrence of the robbery. That doubt is based on Mr. Avgerinos’ financial difficulties and the need for him to find a way of avoiding the payment of rent and his eviction from his apartment. The Defence supported that theory with the additional evidence that Mr. Avgerinos would not permit the police to collect evidence from his apartment and that he delayed reporting the incident until a day later. This contention is not without some merit.

But it would not explain why D.L. would not deny the occurrence of the robbery, if it did not occur at all. D.L. did not do that. To the contrary, he was swift to identify others so that he could spread blame. His concern was to avoid having to carry the complete burden of the blame and the punishment. It makes no sense that D.L. would admit to the occurrence of the incident if none occurred. Insofar as the delayed reporting to the police or the refusal to allow the police to visit the apartment are concerned, there may be any number of explanations as to why Mr.

Avgerinos’ roommate, in particular, would be reluctant to entertain any visit by the police and any investigation. [ 67 ] Another source of reasonable doubt rests with the results of the police’s search of Mr. Weeden’s room. I agreed with the Defence’s concern that in particular, the items that were removed from Mr. Weeden’s room bore no resemblance whatsoever with the items that Mr. Avgerinos reported to be stolen from his apartment. In a nutshell, especially with the additional doubts in this case, the absence of any evidence in Mr. Weeden’s room enlarges the reasonable doubts over Mr.

Weeden’s participation in any robbery. [ 68 ] Finally, Mr. Weeden’s own conduct and his reaction in his statement to the police is compelling. He attended at the police station voluntarily following the search of his room believing that the police were concerned with the discovery of the marijuana in his room. He seemed to be completely surprised by the allegations concerning the robbery and the use of an imitation gun. Throughout his interrogation he was steadfast in his denial that he had absolutely no connection to those accusations.

That denial stood in stark contrast to his admission, in effect, to the marijuana found in his room. He did suggest that he had not engaged in trafficking activities for a couple of months, but he did not pursue that explanation at any length. [ 69 ] At the end of the day, the court is left with significant doubt over Mr. Weeden’s participation in any robbery at Mr. Avgerinos’ apartment. In other words, whether or not a robbery actually occurred, the Crown has not proven Mr. Weeden’s participation in the alleged robbery beyond a reasonable doubt. [ 70 ] Regarding the count that Mr.

Weeden used an imitation firearm, while attempting to commit a robbery, the reasonable doubt over Mr. Weeden’s participation in any robbery subsumes this count. Moreover, there was virtually no evidence to support this count. D.L. said he heard a click of some sort and thought somebody might get shot. He did not see anything else. Mr. Avgerinos felt a metal implement on his neck and suggested that he also saw a gun. He said that D.L. was not the one who held a gun. But he also said that as between the two unknown perpetrators, either of them might have used the gun. Finally, the search of Mr.

Weeden’s room did not result in the finding of any firearms or bullets whatsoever. [ 71 ] On the third count, Mr. Weeden never denied that he had marijuana in his possession. The evidence does not support the contention that the marijuana was a fruit of the home invasion. The quantity of the marijuana was confirmed to be 145.5 grams, with an estimated street value of approximately $2,910.00. The conclusion that Mr. Weeden possessed the marijuana for the purposes of trafficking was supported by its packaging in small quantities, and allows for the inference that Mr.

Weeden was a drug dealer and that he was in the possession of cannabis marijuana for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . CONCLUSION [ 72 ] On the first count against Mr. Weeden, the Crown has not proven that Mr. Weeden unlawfully robbed Mr. Avgerinos on September 23, 2011 beyond a reasonable doubt. I find Mr. Weeden, not guilty. [ 73 ] On the second count against Mr. Weeden, the Crown has not proven that Mr. Weeden used an imitation firearm while attempting to commit a robbery on September 23, 2011 beyond a reasonable doubt. I find Mr.

Weeden not guilty. [ 74 ] On the third count, the evidence before the court supports the conclusion beyond a reasonable doubt that Mr. Weeden possessed Marijuana cannabis for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . I find Mr. Weeden guilty of the third count. Tzimas J. Released: December 19, 2013 CITATION : R. v. Paul Weeden, 2013 ONSC 7891

COURT FILE NO.: 2625/12 DATE: 20131219 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PAUL WEEDEN Defendant REASONS FOR JUDGMENT TZIMAS, J. Released: December 19, 2013