Toronto Criminal Lawyer - Dismissal of Assault and Weapons Charges

¶ 1 NEWTON J. (orally): Yes, in this particular case Silvio T. stands charged that on or about the 18th day of September in the year 1999, in the City of Toronto, in the Toronto Region, did carry or have in his possession an imitation of a weapon; to wit, a folding knife, for a purpose dangerous to the public peace, or for the purpose of committing an indictable offence, contrary to the Criminal Code.

¶ 2 And further, that Silvio T., on or about the 18th day of September in the year 1999, in the City of Toronto, in the Toronto Region, did in committing an assault on Libby S., use a weapon; to wit, a knife, contrary to the Criminal Code.

¶ 3 And further, that Silvio T., on or about the 18th day of September in the year 1999, in the City of Toronto, in the Toronto Region, did carry a concealed weapon; to wit, a folding knife, contrary to the Criminal Code.

¶ 4 In this particular case I can indicate this morning I reviewed all of the evidence that had been adduced on a previous occasion, and I do not propose to review it in detail.

¶ 5 Obviously credibility is a very salient aspect of my determination. In that regard I have addressed my mind to Mr. Justice Cory's remarks in Regina and W.(D.), and I have applied the test in that particular case to the evidence that has been adduced.

¶ 6 It is clear I can believe some, all, or none of what any witness says. It is also clear in this particular case that some of the witnesses, indeed, many of the witnesses, made their observations from different perspectives and at different time periods from when the events were unfolding.

¶ 7 I have also applied my mind to the definition of weapon in the Criminal Code, and to the elements of the offences as defined in the Criminal Code, and the authorities provided to me earlier by counsel; namely, Regina and D.(G.), and the other authorities in the Book of Authorities with respect to the weapons charges. Antley, of course, as counsel Mr. Penney has indicated is an old chestnut, if you will, at (1964), 2 C.C.C. 142; Rant, that was more of a self-defence case, 139 C.C.C. (3d) 447; R. v. G.(D.) 139 (3d) 291; and Proverbs (1983), 9 C.C.C. (3d) 249.

¶ 8 I can indicate I did have concerns with respect to the evidence of Libby S. At the end of the last day's proceedings I found that there were internal inconsistencies in her evidence, there were inconsistencies with her evidence and the evidence of the Crown witness. There were also inconsistencies in her evidence and a statement; and it appears as though today there was additional evidence adduced by the defence with respect to certain comments attributed to Ms Libby S. by Mr. H. and, of course, she denied those comments. That was another factor which contributed to the concern that I had and which, of course, I now have on the totality of all of the evidence that I have heard. It is my view that it would be unsafe to accept her evidence and, of course, accepting her evidence is certainly important to the Crown's case.

¶ 9 Now, dealing with the totality of the evidence, but first of all with the evidence of Mr. Silvio T. I found that Mr. T. was a very candid witness. Initially, I might say, I had some concern as to whether this knife was pulled out in anger or because he was somewhat concerned about various remarks that had been made to him to which he took offence to.

¶ 10 Obviously, if that were the case, that would not constitute a defence. Having said that, it became apparent in the cross-examination of Mr. Silvio T. that clearly he was concerned about his safety. These people were much bigger than he was, there were four people against one person, they were around him in a semi-circle, and he did articulate concerns as a result of a previous incident and a particular difficulty that he had with his eye.

¶ 11 He did not run away, and perhaps he could have run away; but in the circumstances as I found them, although this is a very important factor, I agree with Crown counsel it is not determinative. Really, balancing all of the evidence and accepting his evidence as I do, it was my take on the evidence, if you will, that he did not use this as a weapon, that he was concerned for his safety, and as a result Crown counsel concedes that if that is my finding of fact, he has fairly conceded that would be dispositive of the matter.

¶ 12 Ultimately, I did accept your evidence and the evidence of your friends. There were some inconsistencies in their evidence as well. It was of marginal assistance I felt. Really, it was your evidence which was determinative. Their position did assist in some respects in that they described that they were certainly larger, and other factors which would contribute to your concern.

¶ 13 So ultimately, based upon the totality of the evidence, I am not satisfied that the Crown has proven the elements of these offences beyond a reasonable doubt. I do accept your evidence and the characterization of that evidence that I have attempted to articulate.

¶ 14 In all of the circumstances I am not satisfied the case has been proved to the requisite degree and the charges will be dismissed.