The Defence Toolkit – August 21, 2021

This week’s top three summaries: R v SSS, 2021 ONCA 552: 3rd party #records, R v Da Silva Smith, 2021 ONSC 5521: #credibility argumentative w Def, and R v Stanley, 2021 ONCJ 423: #ID and breaks in continuity of observation

R v SSS, 2021 ONCA 552

[August 3, 2021] Third Party Records (Mills) & No Motive to Fabricate as Makeweight [Reasons by K, Feldman J.A. with P. Lauwers and Gary Trotter JJ.A. concurring]

AUTHOR’S NOTE: Although the focus of the case is the trial judge's familiar misuse of evidence about a lack of evidence of a motive to fabricate, the true gem in this judgment is the recognition of a lowered expectation of privacy in CAS investigative records (vs. some form of therapeutic records) for complainants in sexual assault/interference matters. This case can be used to as a helpful authority to more readily release valuable further statements by a complainant to the defence.

On the motive to fabricate issue, the trial judge erred in part by inferring the mother's potential motivations to the child complainant. The child's motives were not necessarily the mother's. 

Overview

[1] The appellant appeals his convictions for sexual assault and sexual interference, and seeks leave to appeal his sentence of six months’ imprisonment plus two years’ probation, along with various ancillary orders, including one under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The complainant was a young girl, eight or nine at the time of the alleged offences and eleven at trial. The appellant was a 20-year-old university student at the time of the alleged offence. The families of the complainant and the appellant were close. Sometime between February 1 and March 31, 2017, the complainant had a sleepover at her friend P.’s home. P. is the appellant’s younger sister. The complainant said that sometime during the sleepover, when P. was in the shower and she was in a chair in the kitchen, the appellant came in, kissed her, and touched her breasts and vagina over her clothes. She said she screamed as the appellant’s parents returned home from a shopping trip.

[3] The appellant testified, denying the complainant’s claim. He stated that he remembered the weekend the complainant slept over and that he was never alone with her.

[4] The appellant raises a number of grounds for the conviction appeal, most of which allege errors by the trial judge in her assessment of the credibility and reliability of the complainant and the appellant. In my view, the trial judge erred in fact and law by finding that the complainant and her mother had a motive not to fabricate the allegations, and by using that finding to enhance the credibility of the complainant. I would accordingly order a new trial.

Complainant's Evidence

[6] The complainant said that the incident took place while she was staying at the appellant’s house. The appellant’s father had picked her up on a Friday and taken her to their house for a sleepover with P. According to the complainant, the people at the house were P, the appellant, the appellant’s parents, and H., who she referred to as P.’s brother. The complainant testified in cross-examination that she did not see the appellant before she went to bed that night. She ultimately could not pinpoint the timing of the incident, but she said it occurred while she was in the kitchen on a “wheelie-chair.” At the time, P. was taking a bath, H. was at work, although she was not sure if he was at home, and the appellant’s parents were out at a shop.

[7] The complainant testified that the appellant “came downstairs.” She said the appellant kissed her on the lips, tickled her on her breasts, and patted her private part over her underwear after he moved her pants partway down. She said she screamed as the appellant’s parents returned home from their shopping trip. She told them what happened, they asked her a bunch of questions, and then they sent her upstairs and asked the appellant questions.

[8] In cross-examination, defence counsel asked the complainant about what occurred the next morning. She agreed that after she woke up, she played in the kitchen with P.’s mother and ate oranges. This accorded with the testimony of the appellant. The complainant also agreed that at some point, her mother arrived, and that the appellant came downstairs, said hello to her mother, and then went back upstairs. She similarly saw H. come down for lunch and go back to his room. She acknowledged that she had been guessing when she testified to H.’s whereabouts during the incident.

[9] The complainant described how she felt close to P. and how P. had helped her when she was bullied. When the complainant’s mother picked her up from the sleepover, she told her she had had a great time and wanted to visit P. again.

[10] In both the police statement and cross-examination, the complainant stated that she liked to scare her mother by telling her things that were not true. However, in cross-examination, she denied that she had made up the allegations against the appellant. The complainant also admitted that she was not sure whether the appellant’s parents went to the store the day she arrived or the next day. She acknowledged that she did not see the appellant before she went to bed, which was on the day she arrived.

Trial Judge's Findings

[16] The trial judge believed the complainant. She rejected the appellant’s evidence because she accepted the complainant’s evidence beyond a reasonable doubt, applying R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, and R. v. R.D., 2016 ONCA 574, 342 C.C.C. (3d) 236. In addition, the trial judge did not find the appellant’s evidence to be compelling in form or content, for two reasons: (1) the appellant’s demeanor had changed under cross-examination; and (2) she found it incredible that he remembered exactly which weekend his sister’s friend slept over, when he came home from university regularly on the weekends at different hours, and since two years had passed between the incident and his trial. The trial judge acknowledged, however, that aside from those frailties, the appellant’s blanket denial did not have any flaws. Nevertheless, for the trial judge, it did not raise a reasonable doubt.

Motive to Fabricate

[19] The trial judge found that she was satisfied beyond a reasonable doubt of the credibility and reliability of the complainant. One of the factors the trial judge considered in the portion of her analysis where she reached this conclusion was the complainant’s lack of motive to fabricate. She found that not only was there no evidence of motive to fabricate or animus, but that it was contrary to the interests of the complainant and her mother to come forward, and the fact that they did demonstrated how the complainant had no motive to fabricate. The trial judge used that finding as a make-weight to enhance the complainant’s credibility.

[20] The trial judge addressed the issue of motive to fabricate in the following two paragraphs of her reasons:

[164] I have taken into consideration that there is no evidence of a motive to fabricate or animus in this case. To the contrary, by coming forward the complainant stood to jeopardize her friendship with the defendant’s sister. The complainant’s mother risked the close relationship and support of the defendant’s parents, both of whom she considered family.

[165] The existence or absence of a motive to fabricate is a relevant factor to be considered. I acknowledge that when dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of any evidence of motive to fabricate is not the same as absence of motive to fabricate. It is dangerous and impermissible for me to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all. The burden of production and persuasion is upon the prosecution and an accused need not prove a motive to fabricate on the part of a principal Crown witness. [Footnotes omitted.]

[21] There are three errors in the trial judge’s approach. The first is a factual error, while the other two are legal errors. The errors are as follows: (1) there was no evidence from the complainant that she believed coming forward would jeopardize her friendship with P.; (2) the fact that the complainant’s mother did not want to undermine her relationship with the appellant’s parents in no way supports the credibility of the complainant – it is irrelevant to her credibility; and (3) even if the trial judge only found no evidence of motive to fabricate, treating the lack of evidence of motive to fabricate as a factor in assessing the credibility of the complainant in this case amounts to an error of law, because it had the effect of putting an onus on the appellant to disprove that the complainant had no motive to fabricate.

Errors in the trial judge’s reasoning

[25] Paragraphs 164 and 165, quoted above, are the trial judge’s response to counsels’ submissions. I interpret paragraph 164 as a finding by the trial judge that there was evidence of no motive to fabricate, i.e., there was motive on the part of the complainant and her mother not to come forward. The trial judge took this finding into consideration in concluding that the complainant must be telling the truth, and determining that she believed the complainant beyond a reasonable doubt.

[26] However, the trial judge erred by so doing. First, there was no evidence to support the trial judge’s finding regarding the complainant herself. The complainant was not asked any questions about whether she was concerned that her disclosure would jeopardize her relationship with her friend, P. There was no basis for the trial judge to infer such a concern from her evidence. The inference amounted to transferring the concerns of the complainant’s mother onto the complainant, a young child.

[27] Second, the trial judge relied on the mother’s desire to maintain a good relationship with the appellant’s family to bolster the credibility of the complainant’s account. That was an error of law. The mother’s motive cannot and does not speak to the credibility of the complainant’s story.

[30] First, the trial judge did not find a lack of evidence of motive to fabricate. Rather, she found that there was no motive to fabricate, which she used as a make-weight for the complainant’s credibility. Finding no motive to fabricate amounted to a factual error that was not available on the evidence. As explained above, the complainant was never asked about motive to fabricate or any concern that coming forward could jeopardize her friendship with P. In cross-examination she said she did not disclose her allegation to P., but she was not asked about her reason(s) for that decision. The question appeared to be part of a series of questions intended to suggest that the incident did not actually occur, as opposed to suggesting that the incident did occur, but that the complainant did not want to tell P. about it because she was afraid of ruining their friendship. The trial judge also based her finding that the complainant had no motive to fabricate on her perception that the complainant’s mother believed that she could jeopardize her relationship with the appellant’s family if the complainant came forward. This was a significant error because the mother’s motive or lack thereof cannot be attributed to the daughter.

[38] Not only is there no burden on an accused to prove a motive to fabricate, there is equally no burden on an accused to disprove that the complainant had no motive to fabricate.[1] If the accused does not raise the issue, it is not open to the trial judge to find that there was no evidence of motive to fabricate and to use that finding, not disproved by the accused, as a make-weight in support of the complainant’s credibility.

[39] The trial judge’s error in finding no motive to fabricate and using that to bolster the credibility of the complainant was a significant one in the context of this case. Her acceptance of the complainant’s credibility was the main reason she rejected the appellant’s evidence and found that it did not raise a reasonable doubt. As any aspect of the credibility analysis could have been critical to the finding of proof beyond a reasonable doubt, the trial judge’s error requires a new trial.

Third Party Records

[40] After the appellant was charged with the offences before the court, the Children’s Aid Society (“CAS”) sent a letter informing him that an investigation had been conducted into whether the complainant was in need of protection, and that the file had been subsequently closed. At trial, the appellant sought production of the CAS record as it related to the appellant and the complainant.

[42] Here, the trial judge concluded that the appellant had not satisfied the first stage, i.e., that the record was likely relevant. She therefore did not need to proceed with the next steps of the process.

[43] At trial, the appellant relied on the reasons enumerated in ss. 278.3(4)(a), (c), (d), (e) and (k) of the Criminal Code to establish likely relevance, based on the following three statements in the CAS letter:

1. CAS investigated a report that the defendant engaged in sexual activity with a child while in a care giving role.

2. The concern that the defendant was engaged in abusive sexual activity with a child while in a care giving role has not been verified.

3. The society was unable to verify the concerns as it was found that you were not in a caregiver role of the child at the time of the alleged incident.

[44] Based on these statements, the appellant argued that the record was necessary to make full answer and defence because it established that (1) witnesses were interviewed by the CAS, and their statements could be used to impeach their credibility; (2) the complainant’s allegation was not verified by the CAS; and (3) material representations were made to the CAS by the complainant or a witness.

[45] The trial judge found that the defence had not met its onus for three reasons. First, the letter did not say that the CAS had found no merit in the complainant’s allegation, but only that it could not verify that the appellant was in a caregiving role at the time of the incident. Second, there was no basis to conclude that the CAS had interviewed the complainant or other Crown witnesses. Third, even if the CAS record contained statements from the complainant or other Crown witnesses, the defence had the ability to obtain the same evidence from other sources. In particular, the appellant had access to members of his family who were at home with him during the alleged incident, and to the statements provided by the complainant and the other Crown witnesses.

[47] In Mills, at paras. 136-137, the Supreme Court held that the nature of the records provides trial judges with the informational foundation to assess the privacy interest at issue. Counselling records have been recognized as extremely private because of the trust involved in the counselling relationship and the subjective nature of the disclosures.

[48] In contrast, the record at issue here was the result of a targeted CAS investigation. If the complainant was interviewed, it was with respect to the very incident that is the subject of the charges against the appellant. The trial judge considered this same argument by the defence, regarding the lower level of privacy in CAS records than in counselling records, in the context of whether production was necessary in the interests of justice. The trial judge appeared to reject the submission, observing that CAS records regarding an alleged sexual assault can contain very private information about a complainant and their family. Nevertheless, the trial judge concluded that had she found likely relevance, then in the interests of justice, she would have been inclined to order the production of the CAS record for inspection by the court “given the narrow scope of the request for records only involving the defendant.”

[49] I would accept the submission of the appellant. Given that any statement by the complainant to the CAS, if she made one, would have related to the allegations in this case and would not have been of a therapeutic nature, the privacy interest in the record is not as high as in counselling records. If there was any such statement, it was reasonably possible that it would be logically probative of an issue at trial. In those circumstances, the trial judge stated that had she found likely relevance, she would have ordered production for review by the court in the interests of justice. In my view, that is the correct approach for the new trial.

CONCLUSION

[50] For the above reasons, I would allow the appeal, set aside the convictions, and order a new trial.

R v Da Silva Smith, 2021 ONSC 5521

[August 12, 2021] Credibility: Complainant Sparring with Defence Counsel, Attempted Murder: Proving Mental Elements [Nishikawa J.]

AUTHOR’S NOTE: At times, complaints in all sorts of matters bristle at the control exerted over them by defence counsel in cross-examination. Sometimes they lash out by making absurd suggestions or agreements with questions posed by counsel. These are examples of someone that is not concerned with telling the truth under oath unless it suits them. The moment their answers shift in purpose to sparring with defence counsel, they are admitting that they are not so concerned with their oath (even when this shift is plainly obvious). The witness box is no place for sarcasm, retort, or obfuscation. This case provides a useful analysis of such conduct leading to credibility issues for the Crown's witness. 

Overview

[1] On the afternoon of October 22, 2019, the accused, Jonathan DaSilva Smith, stabbed the complainant, Benny Settimo, in the neck and back.

[2] Mr. DaSilva Smith is charged with attempted murder, robbery, aggravated assault, and failure to comply. At trial, Mr. DaSilva Smith pleaded guilty to the charge of failure to comply with the release order dated August 14, 2019.

Facts

[3] The following facts are largely undisputed, unless indicated otherwise.

[4] On the afternoon of October 22, 2019, Mr. DaSilva Smith went to the home of the complainant, Benny Settimo. Mr. DaSilva Smith and Mr. Settimo had met while both were incarcerated at the Central East Correctional Centre (CECC) in Lindsay, Ontario. At one point, they were cell mates for approximately two weeks. Mr. Settimo was released before Mr. DaSilva Smith. After Mr. Settimo’s release, he checked up on Mr. DaSilva Smith, who remained incarcerated. They were also in touch after Mr. DaSilva Smith was released in August 2019.

[5] It is undisputed that Mr. DaSilva Smith had also gone to Mr. Settimo’s house a week or two before October 22, 2019. They “checked-up” on each other, talked, and smoked on the porch.

[6] On October 22, 2019, Mr. DaSilva Smith sent Mr. Settimo a message through Snapchat, asking what he was doing. Mr. Settimo told Mr. DaSilva Smith that he was having his hair braided by his girlfriend, Kylie. Mr. DaSilva Smith asked if he could come over and have his hair braided, and Mr. Settimo agreed. He told Mr. DaSilva Smith that it would cost $20.

[11] It is at this stage that Mr. DaSilva Smith’s and Mr. Settimo’s accounts begin to differ. It is undisputed, however, that Mr. Settimo, Kylie, and Mr. DaSilva Smith ended up hanging out in the parking lot at 5310 Finch Avenue East, while Jordan and Shane went somewhere else. According to Mr. DaSilva Smith, Jordan and Shane went to play pool at the Lyme Lounge pool hall, which was in a business centre a short distance away at 5330-5350 Finch Avenue East.

[12] There was a school bus parked in the parking lot at 5310 Finch Avenue East. Mr. Settimo opened the back emergency exit and he and Mr. DaSilva Smith went into the school bus. Kylie took photographs of them. At some point, Mr. Settimo pulled out a firearm to pose with. Both men posed with the firearm, but only Mr. Settimo held it.

[13] After taking the photographs, Mr. DaSilva Smith and Mr. Settimo exited the school bus. At that stage, according to Mr. DaSilva Smith, Mr. Settimo told him to tell his friends that he wanted to leave. Mr. DaSilva Smith went into the pool hall to speak with Jordan. Mr. DaSilva Smith testified that Jordan would drive Mr. Settimo back if he purchased an ounce of marijuana for $180, as had been previously agreed, or he would refund $20 for the return trip to Oshawa.

[14] Mr. DaSilva Smith and Jordan walked to the parking lot where Mr. Settimo was. The individual identified as Shane went back to the car.

[15] What happened next is highly contested. In brief, a struggle ensued in the parking lot. Mr. DaSilva Smith, who was carrying a knife, stabbed Mr. Settimo in the neck and back. Mr. Settimo took out his firearm and fired four shots. Mr. DaSilva Smith and Mr. Settimo’s accounts differ as to the sequence in which those events took place.

Mr. Settimo

[116] Mr. Settimo was a reluctant witness who had to be compelled to attend court under a warrant for his arrest. He openly questioned the need for his testimony and the need for the trial. Mr. Settimo expressed extreme discomfort about testifying in court. Despite being directed and reminded by the court, Mr. Settimo’s testimony frequently ventured into speculation, opinion and argument.

[117] Mr. Settimo did not listen to the questions being asked, both in examination-in-chief and on cross-examination, and resisted answering them. Instead, Mr. Settimo frequently used his testimony to suit his own purposes. In examination in chief, Mr. Settimo stated that he did not want Mr. DaSilva Smith to be punished. He testified that he had no ill will toward Mr. DaSilva Smith and advocated for him to be released. He expressed his wish that Mr. DaSilva Smith get his life back on track. Needless to say, I place no weight on those statements, but mention them for their impact on the credibility of Mr. Settimo’s testimony.

[118] Not surprisingly, on examination in chief, Mr. Settimo was evasive. Even though it was not a disputed fact, Mr. Settimo resisted identifying Mr. DaSilva Smith by name as the person who stabbed him in the neck. He went so far as to speculate that Mr. DaSilva Smith had “something sharp on his shirt,” and that is how he was cut. Mr. Settimo speculated, without solicitation, about Mr. DaSilva Smith’s motivation and other matters that were not relevant.

[119] By contrast, in cross-examination, Mr. Settimo was defensive and impatient. He became annoyed by defence counsel’s attempts to put contradictory statements or other evidence to him or to require answers to the questions being asked. He blamed and criticized defence counsel, saying “you’re making me say things” and “the more you’re getting me, the more I’ll talk.” As will be detailed further below, Mr. Settimo’s answers changed between his testimony in chief and on cross-examination. Mr. Settimo was excessively preoccupied with the objective behind the questions being asked, when his sole purpose should have been to answer truthfully.

[120] Mr. Settimo has a significant criminal record. Mr. Settimo refused to answer questions about his criminal record, stating that he did not remember any of the underlying facts. Similarly, Mr. Settimo testified that he did not remember how he acquired the firearm.

[123] In R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, the Supreme Court held that in respect of the testimony of certain “unsavoury” witnesses, the jury must be warned about the danger of relying on their testimony without confirmation.

[124] In this case, whether framed as a Vetrovec warning per se, for the reasons that follow, I find it appropriate to instruct myself to approach Mr. Settimo’s evidence with caution. I must consider whether his evidence on key points is confirmed by other independent evidence. Confirmatory evidence is that confirms relevant or important parts of Mr. Settimo’s evidence such that the court’s faith in his evidence is restored: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 41-43. While I may rely on Mr. Settimo’s evidence on key points even if it is not confirmed by independent evidence, I must exercise great caution in doing so.

[125] Mr. Settimo’s testimony raises significant concerns. Despite explicit and repeated direction, Mr. Settimo demonstrated an inability to keep his testimony to facts within his knowledge. Mr. Settimo’s reluctance to provide details when examined by the Crown and, subsequently on cross-examination, his volunteering of unsolicited details when he became upset raises significant concerns about the credibility and reliability of his evidence. It signals that, rather than answer the questions posed to him fully and truthfully, irrespective of who was asking them, that Mr. Settimo responded as suited him at the time. [Emphasis by PM]

[128] The nature and specifics of Mr. Settimo’s testimony changed significantly on crossexamination. While he previously tried to minimize Mr. DaSilva Smith’s role, he became upset on cross-examination and fully implicated Mr. DaSilva Smith. In contradiction to his earlier testimony, Mr. Settimo went so far as to say that it was Mr. DaSilva Smith, and not Jordan, who made the comment that he understood to be a demand for the bag. When his earlier statement was put to him, Mr. Settimo denied making the statement. During the course of Mr. Settimo’s evidence, Mr. DaSilva Smith went from being a pawn to being the main perpetrator. When asked about his earlier testimony, Mr. Settimo said he did not remember. On cross-examination, it was no longer something sharp on Mr. DaSilva Smith’s shirt that cut Mr. Settimo, it was Mr. DaSilva Smith “sawing” his neck.

[129] On cross-examination, Mr. Settimo speculated that Mr. DaSilva Smith was setting him up all along, including when he saw him a couple of weeks earlier, to get his firearm. He speculated that Mr. DaSilva Smith and his friends made multiple stops to discuss how they would get it.

[130] Mr. Settimo was also prone to exaggeration. He testified that he had been cut from “ear to ear,” that fries were coming out of his neck, and that he had to hold his neck to keep his head from falling off.

[131] Mr. Settimo refused to provide any information about his criminal record or how he acquired the firearm, stating that he had no recollection.

[132] The defence put to Mr. Settimo statements contained in the notes of PCs Adams and Goulah. The defence did not seek to adduce the statements for the truth of their contents and they are not admissible for that purpose. The defence submits that Mr. Settimo intentionally misled the officers and that this negatively impacts his credibility.

[133] Specifically, PCs Adams and PC Goulah noted that Mr. Settimo told them the following: ...

• He did not observe much because everything happened so fast; and
• He was on the ground when the males continued to attack him and this was when one of the males cut his throat.

[137] I find that while Mr. Settimo attempted to mislead the officers, not all of the statements were made for that purpose. It is quite likely that, given his state of shock, pain and confusion, Mr. Settimo made some of the statements without any particular objective in mind. As a result, in terms of Mr. Settimo’s credibility, I place limited weight on the statements made by Mr. Settimo to police immediately after the incident.

[138] Given the inconsistency and selectiveness of Mr. Settimo’s evidence, his testimony raises significant credibility and reliability concerns. Perhaps somewhat paradoxically, I believe that for the most part, Mr. Settimo was trying to tell the truth. He was forthright about possessing and shooting the firearm on the day of the incident. However, his testimony was occasionally incoherent. On cross-examination, he often responded impulsively. There were moments when he appeared to be overtaken by emotion, whether anger or distress. He admitted to rambling and sometimes appeared not to realize what he was saying. His discomfort at being compelled to testify was palpable. He was ill at ease with the courtroom process and setting. Mr. Settimo stated that he was anxious and suffered from post-traumatic stress disorder from an unrelated incident. While I would distinguish Mr. Settimo from an “unsavoury” witness in the sense of someone who is “prone to favour personal advantage over public duty” (Khela, at para. 4), I find it appropriate to approach Mr. Settimo’s evidence with caution and to look for confirmatory evidence on key issues: R. v. Roks, 2011 ONCA 63 (CanLII), 2011 ONCA, at para. 63.

Findings - Attempted Murder

[141]  The circumstances that were found to support an intent to kill in the attempted murder cases cited by the Crown included threats or comments made by the accused reflecting their state of mind, the number of times the accused stabbed the complainant, and the extent of the injuries. See: R. v. Foster, 2018 ONSC 6699, 151 W.C.B. (2d) 353; Martin.

[142] In R. v. Rajanayagam, [2001] O.J. No. 393 (Sup. Ct. J.), at paras. 22-24, aff’d [2001] O.J. No. 3236 (C.A.), the court found no intent to kill, as opposed to an intent merely to wound, where the bullets were not shot at a vital part of the anatomy and where there was no evidence of motive, plan or threats.

[143] In this case, the fact that Mr. DaSilva Smith stabbed Mr. Settimo in the neck, a vital part of the anatomy, and the seriousness of the injury would support an intent to kill. While the medical records do not state to how deep the wound was, it resulted in a significant neck hematoma. It is clear that the wound was not superficial.

[144] However, based on both Mr. DaSilva Smith and Mr. Settimo’s evidence, Mr. DaSilva Smith did not say anything before or while stabbing Mr. Settimo that would indicate that he intended to kill him. No threat or statement was made. Moreover, Mr. DaSilva Smith did not continuously stab Mr. Settimo. Based on both of their testimony, Mr. DaSilva Smith ran away after stabbing Mr. Settimo in the neck. On Mr. Settimo’s evidence Mr. DaSilva Smith fled because Mr. Settimo fired the gun, and Mr. DaSilva Smith believed something had been hit in the eye.

[145] Neither Mr. DaSilva Smith nor Mr. Settimo could recall how the wounds on Mr. Settimo’s back were inflicted. Mr. DaSilva Smith speculated that he cut Mr. Settimo while trying to get up from on top of him, which I have found to be an unlikely explanation. Mr. Settimo did not initially know that he was also stabbed in the back but believed that he was stabbed when hiding in the bush. This is inconsistent with Mr. DaSilva Smith having run away holding his eye. In any event, the wounds to Mr. Settimo’s back were superficial and would not support an intent to kill.

Aggravated Assault

[148] I am satisfied on the evidence that the Crown has demonstrated beyond a reasonable doubt that Mr. DaSilva Smith intentionally applied force to Mr. Settimo, that Mr. Settimo did not consent to the force Mr. DaSilva Smith intentionally applied, that Mr. DaSilva Smith knew that Mr. Settimo did not consent to the force, and that the force wounded, maimed, disfigured or endangered Mr. Settimo’s life. The wound was sufficiently deep that it required surgery to repair.

[149] It is therefore necessary to consider whether the Crown has demonstrated beyond a reasonable doubt that the defence of self-defence cannot apply.

Self-Defence

150] As noted earlier in these reasons, there is an air of reality to the defence of self-defence. The Crown must prove beyond a reasonable doubt that one of the three elements of the defence of self-defence identified above does not apply.

[151] In determining whether the act committed was reasonable in the circumstances, the court must consider all the circumstances, including, but not limited to, the following factors:

(i) the nature of the force or threat;

(ii) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(iii) the accused’s role in the incident;

(iv) whether any of the people involved used or threatened to use a weapon;

(v) the size, age, gender and physical capabilities of those involved in the incident;

(vi) the nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat;

(vii) any history of interaction or communication among the people involved in the incident;

(viii) the nature and proportionality of the accused’s response to the use or threat of force; and

(ix) whether the accused’s act was in response to a use or threat of force that he knew was lawful.

Did Mr. DaSilva Smith have reasonable grounds to believe that force was being used or threatened against him by Mr. Settimo?

[153] Mr. DaSilva Smith is significantly larger than Mr. Settimo, who is approximately five feet, six inches tall. On cross-examination, Mr. DaSilva Smith would not state his height but admitted that he is over six feet tall. Mr. DaSilva Smith knew that Mr. Settimo had a firearm because he took it out when they were in the school bus taking photographs. Mr. Settimo did not know that Mr. DaSilva Smith had a knife.

[154] Whether Mr. DaSilva Smith had reasonable grounds to believe that Mr. Settimo was using or threatening the use of force against him depends to a large extent on the sequence of events, specifically, whether Mr. Settimo took out his firearm before or after Mr. DaSilva Smith held a knife to his neck and stabbed him.

[155] Based on the evidence, I find it likely that Mr. DaSilva Smith held a knife to Mr. Settimo’s neck because he and Jordan wanted to take Mr. Settimo’s gun and that Mr. Settimo pulled out his firearm because Mr. DaSilva Smith was holding a knife to his neck. However, that likelihood is not sufficient to find that the Crown has proven beyond a reasonable doubt that self-defence does not apply.

[156] Mr. Settimo testified that he pulled out his firearm when Jordan was grabbing his bag and when Mr. DaSilva Smith was behind him cutting his neck. His testimony on this point was generally consistent. However, on cross-examination, when defence counsel put to Mr. Settimo that Mr. DaSilva Smith stabbed him in the neck because he was pointing a gun at him, Mr. Settimo testified as follows:

Q. So, I’m going to put it to you, sir, that Mr. DaSilva Smith did end up hitting you in the neck with a knife, sir. And that’s after you pointed a gun at his face. Agree or disagree?

A. I agree, since you’re a defence attorney.

[157] In all likelihood, Mr. Settimo’s agreement was a facetious retort as opposed to genuine agreement. However, this answer serves as an example of why it is difficult to place a significant degree of reliance on Mr. Settimo’s evidence. He treated cross-examination as a sparring match with defence counsel as opposed to an occasion requiring the utmost truthfulness and solemnity. [Emphasis by PM]

[158] Because of the significant credibility and reliability concerns that I have about Mr. Settimo’s evidence, I am unable to find that Mr. DaSilva Smith held the knife to Mr. Settimo’s neck before Mr. Settimo pointed the firearm at him. There is no independent evidence to confirm Mr. Settimo’s version of the event. The two individuals who were also present, Kylie and Jordan, were not called as witnesses. If Mr. Settimo pulled out and pointed his firearm before Mr. DaSilva Smith stabbed him or held the knife to his neck, Mr. DaSilva Smith had reasonable grounds to believe that force was being used or threatened against him.

[159] While I do not accept Mr. DaSilva Smith’s testimony that Mr. Settimo pointed his firearm when he was about to hand over the marijuana, and therefore before Mr. DaSilva Smith pulled out his knife, I am left with a reasonable doubt as to the order in which the events transpired.

[160] As a result, the Crown has not demonstrated beyond a reasonable doubt that Mr. DaSilva Smith did not have reasonable grounds to believe that force was being used or threatened against him by Mr. Settimo.

Robbery

[169] The Crown’s theory, that Mr. DaSilva Smith and Jordan wanted to rob Mr. Settimo of his firearm, strikes me as plausible. The fact that he went to speak to Jordan, and that they both returned to the parking lot where Mr. Settimo was, even though Jordan had handed the weed to Mr. DaSilva Smith, indicates that they had a plan.

[170] As detailed above, the broken strap and fallen D-ring support a struggle over Mr. Settimo’s bag. However, as the defence submits, the broken strap could be equally consistent with a struggle to disarm Mr. Settimo and get away. As a result, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. DaSilva Smith is guilty of the offence of robbery.

[171] Moreover, in examination in chief, Mr. Settimo testified that Mr. DaSilva Smith was a “pawn” and did not know that Jordan intended to take his bag. He stated that it was Jordan who made the comment that he understood to be a demand for the bag. However, in cross-examination, Mr. Settimo testified that it was Mr. DaSilva Smith who demanded the bag. Because of Mr. Settimo’s inconsistent testimony, I am unable to find that Mr. DaSilva Smith intended to rob Mr. Settimo of his firearm.

[172] On the W.(D.) analysis, I did not believe Mr. DaSilva Smith’s evidence; nor did it leave me with a reasonable doubt. However, I am not satisfied that the Crown has proved the charges beyond a reasonable doubt and therefore find Mr. DaSilva Smith not guilty of the charges.

R v Stanley, 2021 ONCJ 423

[August 10, 2021] Identification from CCTV - Break in Continuity [Pringle J.]

AUTHOR’S NOTE: Video evidence is everywhere these days. It is useful to remember that even when there is clear CCTV at one location, that doesn't always mean you can establish who and what you see is what police found minutes later. Herein, good CCTV footage minutes before a high speed chase with a vehicle did not prove who the driver was at the critical moments of the offence. The case provides a good argument by analogy where here is a break in continuity over the subject matter of concern and the principles in Villaroman.

The Facts

[1] Mr. Stanley stands charged that during the early morning hours of February 5, 2020 he committed the criminal offences of Dangerous Driving and Fail to Stop for Police. There can be no doubt that someone driving the defendant’s Range Rover committed those two offences on that date. The salient issue for me to resolve was whether the Crown had proven, to the requisite standard of proof beyond a reasonable doubt, that the offending driver was Mr. Stanley.

[2] I will but briefly summarize the evidence, given it was largely uncontroversial. At around 3 a.m. on February 5, 2020, the police dispatch system broadcast information about a recent shooting. Officers Baroudi and Kobayashi heard that broadcast, which informed all officers to be on the lookout for two vehicles fleeing the scene in opposite directions on Queen Street West.

[3] The location of the shooting was particularized as Queen Street West and Dennison, in 11 Division. Officers Baroudi and Kobayashi were in nearby 14 division, at Queen West and Roncesvalles, when they heard this radio broadcast.

[4] While the officers were still stopped at Queen and Roncesvalles, they saw a Range Rover drive by. It generically matched the hearsay description of a vehicle seen driving away from the shooting scene, in that it was a black SUV.

[5] They decided to investigate the SUV further and began to follow it. We know, concretely, that it was 3:07 a.m. by this point. The officers ran the licence plate, and determined the SUV was registered to two different persons. One of those registrants was Mr. Stanley.

[6] The SUV briefly appeared to stop in front of St. Joseph’s Hospital before driving away. At this point, the officers engaged emergency equipment and the situation evolved into a high speed police chase. The chase was captured on scout car video.

[7] There is no doubt that the driver of the defendant’s SUV committed the offences of Fail to Stop and Dangerous Driving on that date. Both offences were captured on video and, to be fair, were not disputed as having substantively occurred. The central issue was whether the Crown proved the driver at the time of these offences to be the defendant, Tariq Stanley, beyond a reasonable doubt.

[8] Both officers frankly acknowledged they could not identify anyone as the driver of that SUV. The windows appeared tinted, it was dark, and they were unable to see inside it. No other evidence relevant to the driver’s identity arose during either officer’s description of the high-speed chase. Ultimately a supervisor called off that chase, and the officers ended their pursuit.

[9] Street surveillance footage was tendered into evidence, which captured the scene of the earlier shooting at Queen and Dennison. The surveillance footage was conceded to be from the location of the shooting. One of the persons in that footage was conceded to be the defendant Mr. Stanley. More specifically, Mr. Stanley was the male wearing a bright yellow hoodie sweatshirt in the first clip shown.

[10] That first clip, labeled “Main Queen”, shows Mr. Stanley and an unknown person on Queen Street. The two, obviously together, attempt unsuccessfully to open a door. Finding the door locked, Mr. Stanley steps out of camera range. The unknown person, however, remains visible. At 2:51:46 on the video clip, the unknown person ducks for cover and runs away. We know from other clips that this is the shooting at Queen and Dennison.

[11] The “Exit Queen” clip captures that same vantage point, but from a wider perspective and further away. From this angle, one can see a vehicle driving slowly down Queen Street West before stopping at 2:50:47 on the clip. This vehicle stops at the side of the road just out of camera range. Its licence plate is undiscernible while the vehicle is in motion, and not visible at all after the vehicle stops. While the vehicle appears to be an SUV of some kind, the evidence does not establish its make or model. The vehicle is dark in colour. It could be dark blue, it could be dark grey, it could be black like the SUV registered to Mr. Stanley.

[12] The unknown male exits the vehicle from the front passenger side door. Mr. Stanley appears to exit from the drivers’ side area and walks around the rear of the vehicle. His actual exit from vehicle was not captured on this video, and thus from this clip I do not know whether he exits from the drivers’ side front or drivers’ side rear door. Mr. Stanley walks to the rear of the vehicle.

[14] The times on the third clip, “Black and White Clip”, do not accord with the first two played. At 2:55:10 on the clip, the vehicle can be seen pulling up to the sidewalk and stopping. Two persons exit. I am confident, when I consider this clip cumulatively with the other two clips, that Mr. Stanley has exited this vehicle from the drivers’ seat and the unknown person has exited from the front passenger seat. It was necessary to use the contents of the other two clips to draw this conclusion, since the vantage point of “Black and White” clip is from quite a distance, and only figures are visible.

[15] They approach the building and, as with the other clips, Mr. Stanley steps back to the car and opens the passenger side door as if to put his small bag inside. At 2:56:22 on this clip, it appears the two react to gunshots, an inference I again draw from considering all clips as a whole. Mr. Stanley enters that open front passenger side door, climbs somehow through the vehicle, exits from the front drivers’ side and runs across the street. The unknown male drops largely out of view behind the open passenger side door.

[16] At this point events become somewhat confused. An apparent third person approaches the vehicle behind that open passenger side door. There is movement from that area. Mr. Stanley is seen crossing the street again, towards the car, and the third person retreats back towards the building. But then either that same third person or perhaps a wholly new fourth person, approaches the vehicle again and enters it through the open passenger side door. The rear passenger side door also opens and closes.

[17] Meanwhile, Mr. Stanley has re-entered the vehicle from the drivers’ side and drives the vehicle away. I have identified Mr. Stanley as the person re-entering the car based on the lighter coloured shirt and the events of all three clips considered cumulatively. [PM Emphasis]

[18] These are the events of the surveillance clips as best as I can discern them. I should add that at no point are the licence plate specifics visible. The number of occupants inside the vehicle, when it pulls up next to the sidewalk, cannot be determined whatsoever. I cannot see inside the vehicle. I know two people initially exited the vehicle, and that one of them is Mr. Stanley. I do not know if anyone remained inside the vehicle. I know that a minimum of three people were inside the vehicle when it left the scene, and that Mr. Stanley was one of those three and he was the driver when the vehicle left the area of Queen and Denison.

[19] I do not know what time the shooting took place, although the evidence as a whole suggest it was somewhere around 2:51 a.m., or maybe 2:56 a.m....

[20] I know the police dispatch broadcast went over the air at “around 3:00 a.m.” according to Officer Baroudi. I know from the scout car video and officer Baroudi’s testimony that by 3:07 a.m. they had seen Mr. Stanley’s SUV in the area of Queen and Roncesvalles, and had begun to follow it. I know they followed it a short distance to St. Joseph’s Hospital, where the SUV stopped briefly before taking off at high speed. I also know the distance between the location of the shooting and the location where Officers Baroudi and Kobayashi first saw the defendant’s SUV was 3.8 km.

[22] When I consider the evidence as a whole, there is a strong inference that Mr. Stanley drove away from the shooting scene in his SUV and was still driving his SUV past officers Baroudi and Kobayashi before committing the driving offences. The Crown submitted this inference was the only reasonable one, and the suggestion of anything other than this occurring would be speculative. [PM Emphasis]

Argument and Legal Analysis

[23] The defence disagreed, and emphasized the application of R. v. Villaroman, 2016 SCC 33 to the circumstantial case at bar. Beginning at para. 35, under the heading of Whether the Inference Must Be Based on “Proven Facts”, the Supreme Court of Canada held that:

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: seeR. v. McIver,1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts:R. v. Khela,2009 SCC 4, [2009] 1 S.C.R. 104, at para.58; see alsoR. v. Defaveri,2014 BCCA 370, 361 B.C.A.C. 301, at para.10;R. v. Bui, 2014 ONCA 614,14 C.R. (7th) 149, at para.28.  Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence.  As stated by this Court inLifchus,a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidenceor lack of evidence”: para. 30 (emphasis added).  A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. ...

The second is fromR. v. Dipnarine,2014 ABCA 328, 584 A.R. 138, at paras.22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances

that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.

[24] Turning back to Mr. Stanley’s case, again I state there is a strong inference that Mr. Stanley was the person driving his SUV when the two driving offences were committed. There are also alternate inferences available. I find not only are they possible but they are reasonable, applying common sense and human experience. It is a reasonable inference that someone else was driving Mr. Stanley’s SUV when it was engaged in that high speed police chase.

[25] There are too many evidentiary gaps here for me to rule out reasonable inferences inconsistent with guilt. I do not know what type of vehicle Mr. Stanley left the shooting scene in. I do not know the plates of that other vehicle. I do not know how many people arrived in that vehicle, or how many people were in that vehicle when Mr. Stanley drove it away.

[26] I also, respectfully, cannot place any faith in the Crown’s submission that the timeframe engaged was so short as to exclude other reasonable inferences. I do not know what time the shooting happened. It could be, as the defence pointed out, as long as 20 minutes or more between the shooting and police seeing Mr. Stanley’s SUV at Queen and Roncesvalles.

[27] I cannot say, based on time and distance, that Mr. Stanley had no time to do anything but drive from the scene of the shooting to Queen and Roncesvalles. It is not unreasonable to conclude he stopped and exited the vehicle that he had driven away from the shooting scene. It is not unreasonable to conclude he could have stopped that vehicle and switched drivers, or switched vehicles. Such behaviour would not be unreasonable, and would make sense if one were hoping to avoid being linked to descriptors of a vehicle, its licence plate, or of its driver leaving a shooting scene. [PM Emphasis]

[28] It is not unreasonable to conclude that Mr. Stanley could have let one of those other people in the vehicle drive his SUV to St. Joseph’s, to drop off someone injured in the shooting. It is also not unreasonable to conclude that Mr. Stanley drove his own SUV to St. Joseph’s Hospital for that exact same reason but, upon becoming aware of a police presence, fled instead. I strongly suspect this is what happened. But I cannot rule out other reasonable inferences and, therefore, Mr. Stanley must be acquitted of both offences. [PM Emphasis]

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