



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kish, 2014 ONCA 181

DATE: 20140310


DOCKET: C53904

Goudge, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicole Yvonne Kish

Appellant



Philip Campbell and Zachary Kerbel, for the appellant

Susan Reid, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered by Justice Ian
    Nordheimer of the Superior Court of Justice, sitting without a jury, dated
    March 1, 2011, with reasons reported at 2011 ONSC 1303.

MacFarland J.A.:

[1]

The appellant appeals her conviction on a charge of second degree murder.
    The appellant, with the consent of the Attorney General, was tried by judge
    alone. She was sentenced to life imprisonment with parole ineligibility set at 12
    years. The appellant had also initiated an appeal of her sentence, but the
    court was informed by her counsel that the sentence appeal should be dismissed
    as abandoned.

OVERVIEW

[2]

In the early morning hours of August 9, 2007, Ross Hammond, a 32 year
    old married man, was stabbed on the north side of Queen Street West in the City
    of Toronto. He received multiple stab wounds to his chest and back as well as
    defensive wounds to his hands and arms. The most serious of his injuries were
    five stab wounds to his chest, two pierced his heart and one of those entered
    the chamber of his heart and ultimately proved fatal. Hammond died as the
    result of those stab wounds two days after he was attacked.

[3]

Hammond was stabbed during a fight with a number of street kids.  No
    one saw Hammond stabbed, and there was no direct evidence of who stabbed him.
    The identity of the person who stabbed him was the principal issue at trial.

[4]

This case involved the following types of circumstantial evidence:
    testimony from 17 civilian eyewitnesses, who saw the events of the evening from
    various vantage points; photographic aids and diagrams to establish sight-lines
    and illustrate the relevant locations; surveillance videotape recording
    portions of the events; forensic blood spatter and DNA evidence; a dying
    declaration; autopsy results; audio recordings of 911 calls and City TV video
    recordings which captured the immediate aftermath of the events and
    importantly, the appearance of the principal participants at the time.

[5]

The events of the evening can be roughly organized into three
    categories:

1.

The initial
    confrontation at the TD Bank ATM, located at the northwest corner of Euclid
    Avenue and Queen Street West, where a female street kid approached Hammond and
    his friend and co-worker, George Dranichak, and asked for $20.

2.

The fight at the
    stopped streetcar on the south side of Queen Street West that involved Hammond,
    a male street kid (Douglas Fresh) and two female street kids (the appellant and
    Faith Watts).

3.

The final fight
    on the north side of Queen Street West that involved Hammond and three street
    kids (Jeremy Wooley, an unidentified male and the appellant).

DEFENCE
    CONCESSIONS

[6]

The appellant does not dispute:

1.

that whoever
    stabbed Ross Hammond is guilty of second degree murder;

2.

that if she
    brought the knife to the fight and passed it to one of her friends with the
    intent that it be used on Hammond, she is guilty of second degree murder as an
    aider;

3.

the trial judges
    finding that the appellant and Faith Watts were involved in the south side
    altercation;

4.

that it was
    Faith Watts who stayed on the south side of Queen Street to tend to Fresh after
    he had been beaten by Hammond; and

5.

that the
    appellant was involved in the fight on the north side.

THE FACTS

(1)

The Initial Confrontation at the TD Bank ATM

[7]

Ross Hammond and his friend and co-worker George Dranichak had been out
    for the evening with other co-workers. They parted company with the others and
    went to a club together at Queen and Bathurst Streets. On leaving the club they
    proceeded along Queen Street West looking for a place to have something to eat.
    The trial judge found they were both under the influence of alcohol. Dranichak
    decided he needed cash and they headed to the ATM machine located at the
    northwest corner of Queen Street West and Euclid Avenue. Either before or after
    he used the machine, he and Hammond were approached by a female who asked them
    for $20. They responded to her request with rude, offensive remarks. The female
    responded loudly and with anger. The trial judge found that she began to yell
    at the two men using equally obscene language  and that her response was
    also fueled by the alcohol she had consumed that day with her friends Faith
    Watts, Douglas Fresh and Jeremy Wooley.

[8]

The trial judge found that this female street kid who had asked for the
    $20 was the appellant, and that she was soon joined by her friend and fellow
    street kid, Douglas Fresh.

[9]

The dispute between Hammond and Dranichak on the one hand and the
    appellant and Fresh on the other moved westward along the north side of Queen
    Street West. The female was loud and angry. At one point either Dranichak or
    Hammond threw Fresh into a storefront window and knocked the appellant to the
    ground. She and Fresh pursued Dranichak and Hammond, yelling at them and
    throwing bags of garbage at them.

[10]

There
    was a stopped eastbound streetcar just west of the intersection of Queen and Niagara
    Streets. Dranichak and Hammond crossed diagonally from the north to the south
    side of Queen Street West in the direction of that streetcar.

(2)

The Fight at Stopped Streetcar on the South Side of Queen Street

[11]

By
    now, Faith Watts, Douglas Freshs girlfriend, had joined Fresh and the
    appellant. It was at this point that Fresh attacked Hammond. The trial judge
    reasonably concluded that it was more likely Hammond who had thrown Fresh into
    the window because it was Hammond who Fresh attacked. Dranichak left the scene
    when the fight on the south side of the streetcar began. As the trial judge
    concluded, no other witnesses observed Dranichaks presence after this fight
    started. The trial judge noted that while [Fresh] may have intended to even
    the score, he failed in that objective as Mr. Hammond quickly got the better of
    Mr. Fresh in the fight. Hammond beat Fresh to the point where he was no longer
    defending himself and appeared to some to be unconscious.

[12]

While
    Hammond was beating on Fresh, two female street kids, the appellant and Watts
[1]
,
    were trying to get him off their friend, Fresh. They were described as pulling
    and punching Hammond on the back. Their efforts did not seem to be having much
    of an effect on Hammond, he tried to push them away, seemed to swat at them,
    but did not stop.

[13]

These
    findings of the trial judge were supported by the evidence of Cam Bordignon,
    who observed the fight from the southwest corner of Queen Street West and
    Niagara Street, and the evidence of Molly Stopford and Jonathan Paget, who
    observed the fight from within the streetcar that had stopped on Queen Street
    West at Niagara Street.

[14]

Molly
    Stopford was sitting on the passenger side of the stopped streetcar and
    Jonathan Paget was beside her, she had the window seat, he the aisle. The fight
    was ongoing immediately below where they were sitting. Stopford said that
    although both females were engaged in the effort to stop Hammond, one was more involved
    than the other. She said she assumed the two women were friends of Fresh
    because they were similarly attired, wearing baggy clothes and seemed to be
    yelling at the jock, trying to get him to stop fighting with their friend.

[15]

Stopford
    said that these women were similar in appearance. Both white, of medium height,
    slim build, light brown hair  and importantly, said: I didnt really
    differentiate between the two of them too much in my mind in terms of looks.
    Stopford distinguished the women by the roles they played  there was one woman
    that was more involved than the other one were her words.

[16]

Stopford
    observed the more involved female to have a knife. The handle was in her mouth,
    only the blade of the knife was exposed. She made this observation from only
    about four feet away through the open window of the streetcar. It is
    significant that within a few days of the stabbing, Stopford drew a diagram of
    the blade of the knife that she had observed in this womans mouth, including a
    round circle that marks a distinguishing feature of the knife that was used to
    fatally wound Hammond. In my view, it adds a certain weight to Stopfords
    evidence that she was able to accurately draw the knife that she said she saw,
    and that it very closely resembled the murder weapon.

[17]

In
    any event, when she saw the knife Stopford became upset and at that point she
    closed the window of the streetcar and deliberately turned her attention away
    from the fight.

[18]

When
    she next looked out to the south, she did not see the woman who had had the
    knife; she saw Fresh with blood on his face and noted that someone had helped
    him to the sidewalk. By the time Stopfords attention was turned back to the
    north side of Queen Street West, the fight on that side was clearly over. She
    noticed that one woman appeared to have suffered an injury to her arm and that
    she was being tended to by another woman.

[19]

Specifically,
    Stopford said that she saw the woman whom she had seen with the knife now on
    the north side of the street, and noted that another female had taken off her
    shirt and was wrapping it around the arm of the woman who had had the knife. Stopford
    thought these two females were the same two she had seen earlier, in the first
    fight. She also believed that the woman who was helping the woman who had had
    the knife was the other woman who had been the less involved female in the
    efforts to get Hammond off Fresh.

[20]

Stopford
    conceded on cross-examination that there was nothing in the descriptions of the
    two women that she could point to in order to distinguish between the two of
    them. It was by the roles they played in the first fight that she distinguished
    them.

[21]

Stopford
    next saw Hammond on the hood of a taxi cab on the north side of Queen Street
    West and at that point he was holding a knife in his right hand. She thought it
    was the same knife she had previously seen in the mouth of the more involved
    female. As it turned out, she was right about that. The weapon had obviously
    been used by Hammond on the appellant. Both Hammonds blood and the appellants
    blood were found on the area of the knife where the blade joins the handle.

[22]

Jonathan
    Paget was seated beside Stopford, and his evidence largely supported hers. The
    two were friends. They had been out together for the evening and were on their
    way home.

[23]

Paget
    observed two females in close proximity to where the fight between Hammond and
    Fresh was taking place. He said one of the women approached the fight and
    ended the fight and as she approached he very clearly recalled her yelling at
    the parties who were fighting in an effort to get them to stop. He described
    her as being dressed in street fashion.

[24]

He
    said that this female approached the fight with intent, moving toward the two
    male fighters very briskly with her arms out ready to help stop the fight. And
    she was able to stop the fight and got the short-haired male (Hammond) off the
    street kid (Fresh). Paget said that at some point during these events he
    noticed this female was holding a knife in her right hand. He only saw the
    blade of the knife, which he estimated to be about three inches long, the
    handle was concealed by the womans hand and fingers.

[25]

Paget
    saw the knife twice during the events of that evening. The first time was when
    he saw it in the females hand. He could not say if it was before or after the
    fight between Hammond and Fresh, but he recalled the knife in her hand as she
    walked from the front of the streetcar toward where he (Paget) was sitting.

[26]

The
    second time he saw that knife was when it was in Ross Hammonds hand as he lay
    on the hood of a taxi on the north side of Queen Street West. Paget also noted
    that when the female with the knife first approached, she was with a second female.
    At the end of the altercation, he noticed this second female tending to the
    first females cut arm. The woman who had been cut, who we know to be the
    appellant, was very upset about having been cut on the arm. Paget believed the
    woman who was tending to the appellant after the fight was the same female who
    accompanied her at the beginning of the fight on the south side of the street.

[27]

Paget
    was clear in his evidence that the woman who brought the knife to the fight on
    the south side of the streetcar was the same woman who ended up with the cut
    arm on the north side of the street.

[28]

He
    said it stuck in his memory because he had heard many times you should not
    bring a knife or a weapon into a fight because you may end up the one injured
    by it. He was reminded of that saying at the time because the woman whom he had
    seen bringing the knife to the fight was the one who ended up with a cut arm.

[29]

He
    was fairly certain in his evidence that it was the same girl. Neither Stopford
    or Paget could assist further in terms of descriptions of the two women.

[30]

The
    evidence is clear that the appellant was the person who ended up with the cut
    arm on the north side, that it was Faith Watts who was assisting her, and that this
    was at the very end of the events that took place on the north side of the
    street.

[31]

The
    trial judge accepted the evidence of Stopford and Paget. He concluded that the
    appellant had the knife on the south side and used it to get Hammond off Fresh
    by inflicting superficial wounds to his back.

[32]

The
    trial judge concluded that Watts stayed behind with Fresh after he was pulled,
    unconscious, to the south sidewalk, while the appellant went around the front
    of the streetcar in pursuit of Hammond.

[33]

Hammond
    was caught on video surveillance from the One of a Kind Pasta Shop between the
    south and north side altercations. He does not appear in that video to have suffered
    any debilitating injury and he does not have a knife in his hands.

(3)

The Final Fight on the North Side of
    Queen Street

[34]

After
    the fight with Fresh, Hammond moved around the streetcar to the north side of
    Queen Street West and became involved in a second fight. This time he was
    outnumbered  two men and a woman set upon him and he was put to the ground. He
    suffered stab wounds to his chest that would cause his death two days later.

[35]

The
    trial judge concluded that Jeremy Wooley, an unknown male and the appellant
    were engaged in that second fight with Hammond.

[36]

Melissa
    Gallately had a birds eye view of the fight on the north side. She lived in an
    apartment over the Select Mart, on the south side of Queen Street. The
    apartment consisted of the second and third floors above the store. On the
    evening in question, Gallately was in bed on the third floor with her infant
    son, trying to settle him, when her attention was drawn to the street by
    screaming and yelling. She went out onto the balcony for a closer look and saw
    three people  two males and a female  on top of one person. The taller of the
    two men wore a shirt that was totally unbuttoned and he wore nothing underneath
    it. The other male was shorter, with shorter hair and he wore shorts. The
    female was wearing a longer black skirt and a black tank top. Her hair was
    either in dreadlocks or it was matted and half-pulled up. Her hair was dark.

[37]

There
    was no one else around the group when Gallately first looked out, other than
    the man on the ground, who she described as being in almost a fetal position.
    He was trying to cover himself and protect his head from the beating that was
    being inflicted on him. She described the three attackers, the two men and the
    woman in the black skirt, as looking like street kids in dirty, disheveled
    clothing. The male on the ground who was receiving the beating looked older
    than the street kids and more conservative.

[38]

She
    observed both men punch, stomp and kick Hammond, but said that the man with the
    open shirt was being the more aggressive of the two men.  The woman was hunched
    over the man on the ground facing his stomach and chest area. She described the
    woman as kind of flailing toward his body  her arms were moving constantly and
    she was very angry. Gallately estimated that about thirty seconds into the
    fight, this same woman began to scream about being bloody and being stabbed. She
    saw nothing in the hands of either of the two men or the woman. Although the
    woman had screamed about being stabbed, it did not slow her down, Gallately described
    her as very aggressive. Although Hammond was making an effort to get up, the
    blows kept coming and knocked him to the ground. He tried several times and
    eventually got up and stumbled away. Gallately went on to describe Hammonds
    effort to stop a cab for assistance, but her attention was more focused on the
    girl who had been involved in the fight. She remained screaming on the sidewalk
    with the two men  calling for an ambulance and yelling that she was bleeding. 
    All three were soon approached by a police officer.

[39]

The
    CTV video taken in the immediate aftermath of the events clearly show the main
    characters, the appellant, Faith Watts, Jeremy Wooley and Douglas Fresh. How
    they were attired and how they looked that night is captured on film.

[40]

The
    appellant, distinctly, is the only one wearing a long black skirt and black
    halter top and her hair is in dreadlocks. Faith Watts on the other hand, is
    wearing gray shorts and Doc Marten style calf length boots.

ISSUES

[41]

The
    appellant raises two grounds of appeal:

1.

The trial judge
    accepted and relied on manifestly unreliable evidence in concluding that the
    appellant was the female armed with a knife on the south side of the street and
    was the person who took that knife to the north side of the street where she
    used it to fatally stab Hammond. This resulted in an unreasonable verdict.

2.

The trial judge misapprehended, or failed to confront,
    items of exculpatory evidence that could have contributed to the existence of a
    reasonable doubt. Most significantly, he did not consider the possibility that
    Faith Watts, Jeremy Wooley or the unknown third man involved in the final fight
    on the north side of Queen Street could have been the stabber.

(1)

First
    Ground of Appeal  Unreasonable Verdict

[42]

The
    appellant argues that the verdict is an unreasonable one. She says the evidence
    upon which the trial judge relied to conclude that the woman bleeding on the
    north side was the woman with the knife on the south side did not meet the
    criminal standard of proof and was insufficient to satisfy a reasonable trier of
    fact beyond a reasonable doubt. The critical and key issue on this ground of
    appeal is: who was the woman on the south side with the knife? The appellant or
    Faith Watts? In short, the appellant submits that the trial judge erred when he
    concluded that the female at the ATM machine in the initial confrontation was
    the appellant rather than Faith Watts; that the trial judge erred in accepting Stopford
    and Pagets identification of the appellant as the female armed with a knife on
    the south side of the street because it was manifestly unreliable; and that the
    trial judge erred in accepting the evidence of Melissa Gallately in relation to
    the appellants observed actions during the north side fight. The appellant
    argues that the trial judges reliance on the above-listed evidence resulted in
    an unreasonable verdict.

[43]

The
    test for finding an unreasonable verdict is well-settled. In
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, Arbour J. said:

The test for an appellate court determining whether the verdict
    of a jury or the judgment of a trial judge is unreasonable or cannot be
    supported by the evidence has been unequivocally expressed in
Yebes
as
    follows:

[C]urial review is invited whenever a jury goes beyond a reasonable
    standard [T]he test is whether the verdict is one that a properly instructed
    jury acting judicially, could reasonably have rendered.

and at para. 37:

The
Yebes
test is expressed in terms of a verdict
    reached by a jury.  It is however, equally applicable to the judgment of a
    judge sitting at trial without a jury.

The review for unreasonableness on appeal is different,
    however, and somewhat easier when the judgment under attack is that of a single
    judge, at least when reasons for judgment of some substance are provided.  In
    those cases, the reviewing appellate court may be able to identify a flaw in
    the evaluation of the evidence, or in the analysis, that will serve to explain
    the unreasonable conclusion reached, and justify the reversal.

[44]

The
    application of the test was explained by Watt J.A. in
R. v. Roks
, 2011
    ONCA 526, stating, at para. 122:

Under s. 686(1)(a)(i), an appeal court is entitled to review
    the evidence adduced at trial, to re-examine that evidence and to reweigh it,
    but only for the purpose of determining whether the evidence, as a whole, is
    reasonably capable of supporting the trial judges conclusion:
R. v. Burns
,
    [1994] 1 S.C.R. 656, at p. 663.  We must bring to bear on the exercise of
    evidentiary review, re-examination and reweighing, our assessment, informed by
    judicial training and experience, not simply our own personal experience and
    insight:
Biniaris
, at para. 42.

[45]

The
    appellant concedes that the test is a high one. She argues firstly that the
    trial judge erred in finding that it was the appellant who asked Dranichak and
    Hammond for $20 at the ATM machine. She submits that Dranichak identified the
    female at the ATM as Faith Watts rather than the appellant. He did so within a
    few days of August 9, 2007 and from police photographs shown to him. The trial
    judge rejected his evidence as unreliable.

[46]

Dranichaks
    iteration of events was at odds with the evidence of many other witnesses whose
    evidence the trial judge accepted. Dranichak testified that he and Hammond
    moved to the south side of Queen Street almost immediately after they left the
    ATM.  At this point he testified that he, Dranichak, was attacked by a male and
    a female on a bike. He was able to fight them off and make his escape in a
    taxi. Dranichak said he didnt know where Hammond was when he left and he was
    certain that they never got as far west as Niagara Street.

[47]

Contrary
    to Dranichaks evidence, the argument between he and Hammond and the male and
    female street kids who were following them moved westward along the north side
    of Queen Street  a fact witnessed by a number of witnesses. No other witness
    saw anyone on a bike who was actively involved in the initial dispute.

[48]

Mystica
    Cooper and Laura Quigley both described the angry, loud female street kid, who
    along with a male street kid was pursuing Dranichak and Hammond along the north
    side of Queen Street West, as wearing a long skirt with her hair in dreadlocks.
    The appellant was the only one wearing a long skirt with her hair in
    dreadlocks. The trial judge concluded that Cooper and Quigley could not both be
    mistaken. He was aware that they both had described the appellants hair colour
    as blondish when it was in fact brown. He noted that a number of witnesses had
    described many of the persons involved as being blond. The trial judge did not
    consider the misdescription as being significant. As he explained, the
    artificial lighting in the area distorted colour as some of the surveillance
    video evidence clearly demonstrated. The trial judges finding is supported by
    the evidence of Cooper, Quigley and Shawn Park. Their descriptions of the
    appellant match her appearance in fact, as captured on the CTV video as well as
    the police booking video.

[49]

The
    identification of the female street kid in the ATM confrontation as the appellant
    was a finding the trial judge was entitled to make on the evidence before him.
    Dranichaks evidence was at odds with that of many other witnesses. It was open
    to the trial judge to reject his evidence as unreliable.

[50]

Next,
    the appellant submits that the evidence of both Molly Stopford and Jonathan Paget
    was manifestly unreliable and the trial judge erred in relying on that evidence
    to identify the appellant as the woman with the knife on the south side.

[51]

The
    appellant places particular reliance on the following exchange between defence
    counsel and Molly Stopford:

Q.      So the woman that you thought was cut and the woman who
    was tending to the injury may or may not have been the same two that you had
    seen in the fight.

A.      Yes. I thought they were but its possible that I was
    wrong.

Q.      I gather your first instinct was that the girl who was
    cut was also the girl whod had the knife in the fight, is that right?

A.      Yes.

Q.      And I also understand that youve examined that idea
    closely, is that right?

A.      Mm, yeah, I guess so.

Q.      Its possible youre interchanging the two women that
    are in the fight in your mind?

A.      Yes, its possible.

and further on:

Q.      Between the two girls, youre not even 100 percent sure
    which one took the shirt off, which one was cut.

A.      Thats right.

Q.      Do you recall being asked by the police, Do you think
    you can tell them apart, and answering, Honestly, I dont know. I have no idea.

A.
Yes.

Q.      You agree with that again
    today?

A.      Yes.

Q.      Youre not 100 percent positive that the girl who was
    cut was the girl with the knife?

A.      Thats right.

Q.      Youre not 100 percent positive that the girl who took
    her shirt off was the second girl?

A.      Thats right.

[52]

In
    re-examination by the Crown, Stopford was questioned about what influence the media
    coverage of the event may have had on her evidence. She responded:

A.      I specifically tried to not let the media influence any
    of my memory.  But I suppose that  I hope that it didnt but I guess its
    possible that it created  it filled in some of the blanks, but I very strongly
    believe that I am only saying exactly what I saw.

[53]

I
    start by noting that it is unhelpful generally in cross-examination to repeat a
    witnesses statement to them that had been made in chief and ask if they are
    100 percent certain of that statement. First, it is not necessary for a
    witness to be 100 percent certain  that is not the criminal standard.
    Secondly, most reasonable persons would usually agree to a
possibility
they could be wrong or as the
    saying goes anything is possible. The trial judge was alive to this, stating
    in his reasons:

Our reliance on the evidence of any eyewitness also
    recognizes that an eyewitness does not have to be certain in his or her
    identification. To the contrary, it is well-recognized that there is a weak
    link between the certainty of an eyewitness and the accuracy of that witness
    evidence:
R. v. Hibbert
, [2002] 2 S.C.R. 445 at para. 52.

Rather than detracting from their evidence, in my
    view, their willingness to acknowledge the reality that they might be wrong
    only serves to enhance the genuineness with which they gave their evidence.
    Ultimately, it is the trier of fact who must assess the evidence and decide
    what evidence to act on.

[54]

I
    would also note that the trial judge was clear in his reasons that he was very
    much aware of the frailties of eyewitness evidence, and explained that trial
    judges caution jurors very strongly about these frailties and the need to take
    special caution in approaching such evidence. The trial judge elaborated:

[E]very witness will see events from their own
    perspectives. They will remember some aspects of the events better than others.
    In my view, those inconsistencies are minor in nature and, rather than
    detracting from the honesty of the witness evidence, they enhance it because
    they are precisely the type of inconsistencies that one would expect to see
    when asking multiple people to recall the same event. It does, however, further
    explain why we exercise the caution that we do when we approach the evidence of
    eyewitnesses and why we look for corroboration in other evidence.

[55]

There
    is no doubt the trial judge was aware that Stopford conceded in
    cross-examination that she may have been interchanging the two females and that
    her recollection may have been influenced by the media. The trial judge said
    [s]he also admits that she might be interchanging the two females in terms of
    which one had the cut arm, and Ms. Stopford does acknowledge that her
    recollection of the events may have been influenced by media coverage that she
    saw of the story.

[56]

As
    for Paget, on cross-examination he maintained that he was fairly certain the
    woman hed seen with the knife in her hand on the south side was the same woman
    he saw with the cut arm on the north side of the street. He was vague on any
    details which could help to identify the appellant.  He said that a saying had
    stuck in his mind at the time, that you should never bring a knife or a weapon
    to a fight because it may end up being used on you. He was struck by the irony
    that the appellant took the knife to the fight and ended up being cut by it.

[57]

Paget
    thought this at the time the events occurred, and while it is not
    identification
per se
, it is an indication of the impression made on
    his memory at the time  that the woman with the knife on the south side was
    the same woman who got stabbed on the north side. It is unlikely his memory
    would have been jogged that way if it had been someone other than the woman he
    had seen with the knife on the south side who ended up wounded on the north
    side.

[58]

In
    my view it was open to the trial judge to accept the evidence of Stopford and Paget.
    While their evidence was not identical, each was corroborative of the others
    on the material points. Both said the woman they had seen with the knife on the
    south side was the same woman who ended up with the cut arm on the north side 
    and there is no doubt the woman with the cut arm was the appellant.

[59]

The
    trial judge found, and his finding is not challenged, that the two women
    involved in the south side fight were Faith Watts and the appellant. Faith
    Watts admitted in her video evidence that the knife, ultimately found to be the
    murder weapon, was her knife. She said she pulled it out during the south side
    fight and was almost immediately disarmed by  she thought Richard Hammond.
    She described the knife as one she had stolen in Montreal. Her boyfriend Fresh
    had also stolen an identical knife at the same time. Freshs matching knife was
    found among his belongings when he was searched following these events.

[60]

The
    evidence is clear, however, that Watts remained on the south side and did not go
    to the north side until the fight on the north side was over. At that time, she
    went over to assist her friend, the appellant, who was bleeding.

[61]

There
    were only four people involved in the fight on the south side of the streetcar 
    Watts, the appellant, Fresh and Hammond. The knife is seen by both Paget and
    Stopford on the south side. Watts and Fresh stay on the south side, which
    leaves only the appellant or Hammond to take the knife to the fight on the
    north side. Hammond, as indicated earlier, is captured on video between the two
    fights  he does not have a knife in either hand and does not appear to be
    seriously injured at that point. By process of elimination, that leaves only
    the appellant who could have taken the knife to the north side. This fact,
    coupled with the evidence of Stopford and Paget, is strongly persuasive that it
    was the appellant who had the knife on the south side and the only one who could
    have taken it to the north side.

[62]

That
    this was the knife, identified by both Stopford and Paget, that was used to
    stab Hammond fatally and wound the appellant cannot be doubted on this record.

[63]

The
    nature of this evidence is not identification evidence in the strict sense.
    Neither Stopford or Paget were able to identify the appellant by a description
    of her features or what she was wearing at the time, other than in general
    terms  her clothing was baggy  her hair messy.

[64]

In
    dealing with Stopfords evidence, the trial judge specifically noted that she
    admitted she might be interchanging the two females. He did not specifically
    refer to the entire cross-examination about whether, for example, she was one
    hundred percent sure. It was not necessary for him to do so here. The point
    that he did mention was the common theme of the cross-examination and the trial
    judge was aware of it. But, as he was entitled to do, he accepted her evidence
    and that of Paget. As indicated earlier, their evidence was mutually corroborative
    and when considered with the rest of the evidence was powerfully persuasive
    overall.

[65]

The
    appellant submits that no one saw Watts transfer the knife to her. She suggests
    that it is equally plausible that Watts could have passed the knife to Jeremy
    Wooley or the unidentified third man who participated in the fight on the north
    side. The difficulty with this argument is that there was no reliable evidence
    that either of those men were ever on the south side of Queen Street at the
    material time. The only shred of evidence is that of Cam Bordignon, who gave a
    vague description of one of the onlookers to the south side fight, which might
    describe Wooley. It defies logic, however, to suggest that Wooley would simply
    stand by and witness his friend Fresh being pummelled into unconsciousness by
    Hammond, while doing nothing to help.

[66]

Finally,
    the appellant submits that the trial judge did not adequately deal with the
    inconsistencies in the evidence of Melissa Gallately. Had he done so, he would
    have rejected her evidence in relation to her observations of the appellant,
    who while engaged in the north side fight, was flailing her arms and hand
    toward the victims stomach and chest area.

[67]

Gallately
    gave a statement to the police the morning after the stabbing, and was
    cross-examined on that statement by defence counsel. She did not use the word
    flail in her statement to the police and did not specifically state that the
    female was beating the gentleman on the ground. She said that what she meant
    when she described the female as being on him was that she was crouched over
    him and that they were clearly landing blows, she was on top of him moving and
    flailing.

[68]

At
    the preliminary inquiry, Gallately also gave evidence and was cross-examined in
    relation to that. She again had explained that the two men were kicking and
    punching Hammond and that the female was on top of him. She  explained, when
    asked if she had seen the girl punch or kick:

Well, it was kind of a scuffle and I know she was on him.  She
    wasnt helping him.

[69]

She
    agreed that she had not mentioned the flailing of arms by the woman in either
    her statement to the police or in her evidence at the preliminary inquiry. When
    asked if she had any doubt about the arm flailing, she said:

No, I have a recollection to it. Just since I didnt say it
    before. Her motions and arm movements towards him were very aggressive.

[70]

Defence
    counsel took Gallately to both her statement to the police, which she gave the
    morning after the stabbing, and to the evidence she gave at the preliminary
    inquiry. In relation to her statement to the police, Gallately testified at
    trial that at the time she thought it had just been another bar fight, a common
    occurrence in the neighbourhood. She said if she had known that someone had
    died she may have, as she put it, been a little more, you know, diligent about
    coming up with extreme details.

[71]

In
    relation to her evidence at the preliminary inquiry, Gallately agreed that she
    had said the female assailant was on him and on top of him and that she had
    not said, then, that the female was flailing and moving her arms.

[72]

Defence
    counsel tried to have Gallately agree that the female was the least aggressive
    of the three who were attacking Hammond. She responded:

A.

No. Maybe
    physically but not verbally.

Q.      So physically shes 

(counsel interjects)

A.      She was quite angry, quite aggressive verbally and her
    mannerisms towards him were very aggressive.

and the cross-examination continued:

Q.      Okay. So from a verbal point of view, she was not the
    least aggressive.

A.      No.

Q.      But from a physical point of view she was the least
    aggressive.

A.      Yes. Yes. If youre taking the arm flailing out, yes.

Q.      If were taking the arm flailing out. Well, are we
    taking the arm flailing out?

A.      I dont know.

Q.      Do you have some doubt about the arm flailing?

A.      No, I have a recollection to it. Just since I didnt
    say it before.  Her motions and arm movements towards him were very aggressive.

[73]

The
    trial judge accepted the evidence of Melissa Gallately. In his reasons, he referred
    only to the statement she had given to the police and her evidence to the
    effect that she may have been more forthcoming and provided greater detail, had
    she known that someone had died. The trial judge accepted that explanation as
    honest and forthright. He did not specifically reference the preliminary
    inquiry evidence and appellants counsel argues that by then, Gallately knew
    that someone had died and the trial judge should have dealt with this
    inconsistency.

[74]

I
    do not agree. This experienced trial judge was well aware that on another
    occasion this witness had said something different from the evidence she provided
    at trial. She specifically had not mentioned the flailing of the female
    assailants hands and arms on the either of the earlier occasions. The trial
    judge only referred to the police statement, and he accepted her explanation.
    The appellants complaint is with respect to Gallatelys failure to mention the
    flailing on a second occasion. However, Gallately was not asked at trial why
    she had failed to mention the flailing arms at the preliminary inquiry as she
    had been asked about the statement to the police. Instead, defence counsel
    reviewed with her the evidence she had given at the preliminary inquiry and Gallately
    explained what she had meant when she said the female was on top of him.  She
    agreed she had not mentioned the flailing of arms but had no doubt, at trial,
    about what she had observed.

[75]

There
    was no blatant contradiction of her evidence on an earlier occasion, in the
    strict sense. She merely elaborated at trial. The trial judge was fully aware
    of and appreciated that, although having had the opportunity to do so, this
    witness had not mentioned the flailing arms on at least one of those earlier
    occasions.

[76]

In
    my view, the trial judges failure to mention the fact that Gallately had also
    failed to mention the flailing of arms at the preliminary inquiry is of no
    consequence. The shortcoming of her evidence was the same failure to mention
    the same conduct. He accepted her evidence despite her failure on the one
    occasion he referenced in his reasons, as he was entitled to do. As the trial
    judge, it was his call; I would not interfere with his finding.

[77]

I
    would also note that the testimony of Nataja DeSilvia and Saad Mir generally supports
    the evidence of Gallately.

[78]

DeSilvia,
    who worked at a restaurant on the north side of Queen Street West, witnessed
    the fight on the north side of the street. She described the female involved in
    the fight as younger, wearing a tank top, and with dreadlocked hair. She saw
    punches being thrown by all involved in the fight. When the fight ended,
    DeSilvia saw the man who had been beaten hook his arm into a taxi, and saw the
    taxi carry him west on Queen Street. She heard the female yell that he had
    stabbed her, and she said that the female who had been involved in the fight was
    bleeding and calling for an ambulance. DeSilvia saw another female come to
    help, and then DeSilvia called 911.

[79]

Saad
    Mir was driving a taxi on the night of the stabbing. He witnessed the fight on
    the north side of Queen Street, and testified that he saw a male being attacked
    by a female and two other males. Mir testified that the male being attacked was
    on top of the female, while the other two males were kicking at him. Mir said
    that the male and the female were struggling, and that the female was making
    punching motions, although Mir could not testify as to the force of the blows.
    After about ten seconds, Mir said that the male who was being attacked got up
    and tried to get into another taxi, but could not get in. That male then
    approached Mirs taxi. Mir saw that he had a knife in his hands, and locked his
    doors. However, the windows were open, and the male locked his arm around the
    centre post of the car on the passenger side. Mir drove slowly, as there was
    traffic, and the male fell from the car as they passed by the church. Mir
    testified that he made a U-turn and drove back towards Niagara Street and
    alerted a police officer to Hammonds condition. He then made another U-turn
    and drove west along Queen Street. At that time, he saw the female who had been
    involved in the fight. He said she was holding her left wrist and saying that
    she had been stabbed.

[80]

Based
    on all of the above, I would not give effect to this ground of appeal.  In my
    view, the verdict is a reasonable one and is amply supported by the evidence.

(2)

Second Ground of Appeal - Failure
    to Apprehend and Address Exculpatory Evidence

[81]

The
    appellant argues that the trial judge misapprehended the evidence in that he
    did not consider exculpatory evidence which may have raised a reasonable doubt
    about the appellants guilt.

[82]

In
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 217,
    Doherty J.A. noted:

Submissions premised on an alleged misapprehension of evidence
    are commonplace in cases tried by a judge sitting without a jury. A
    misapprehension of the evidence may refer to a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to evidence.

[83]

Both
Morrissey
and the recent decision of this court in
R. v.
    Alboukhari
, 2013 ONCA 581 are examples of cases where trial judges have
    misstated what the evidence in fact was. In both
Morrissey
and
Alboukhari,
this court quashed the convictions and ordered a new trial, as the
    misstatements were found to have played an important role in the trial judges reasoning.

[84]

This
    case is different in that the principal misapprehension alleged here is the
    trial judges failure to consider that Faith Watts, Jeremy Wooley or the
    unidentified third man could have been the killer.

[85]

Counsel
    for the appellant argues that this case is, on its facts, more like the case
    that was the subject of this courts decision in
R. v. Clouthier,
2012
    ONCA 636. In
Clouthier
the appellant was convicted of robbery and
    disguise with intent to commit an indictable offence. The offences arose from
    the robbery of a Macs Milk Store in Arnprior by a man wearing a balaclava. As
    the court put it, at para. 1:

The sole issue at trial was identity. The appellants principal
    ground of appeal is that in his reasons for conviction, the trial judge failed
    to give any consideration to evidence that the appellants DNA did not match
    that detected on a balaclava that was found near the scene of the robbery.

[86]

Sharpe
    J.A. writing for the court noted, at paras. 12-16:

In the circumstances of this case, the failure of the trial
    judge to address the significance of the DNA evidence is highly problematic.
    The Crown offered some evidence pointing to the appellant as the robber, but
    the Crowns evidence was far from compelling. While the evidence of the DNA on
    the balaclava did not conclusively demonstrate the appellants innocence, it
    was a significant piece of evidence that potentially exculpated the appellant
    and it therefore deserved some consideration by the trial judge.

The robbery took place on an October evening when one would not
    expect to see or find a balaclava.  This made it more probable that the
    balaclava found near the scene was the same one worn by the robber.  The
    balaclava covered part of the robbers mouth making it possible that the robber
    would have deposited DNA on the balaclava.

In my view the trial judge erred in law by failing to explain
    why the DNA and balaclava evidence did not raise a reasonable doubt as to the
    appellants guilt.

Another element in the evidence not dealt with by the trial
    judge was the store clerks evidence as to the height of the robber.  She
    testified that she is five feet five inches tall and that she was standing on a
    six inch platform behind the counter.  From that perspective, she was face to
    face with the robber and she estimated that he would have appeared an inch or
    less than an inch taller than her while she stood on the six-inch platform.
    This suggests that the robber could have been approximately six feet tall. The
    appellant is five feet seven or eight inches tall. The point was not emphasized
    by defence counsel in his closing submissions but it was mentioned and was
    clearly raised in the evidence.

While trial judges are not required to make reference to every
    piece of evidence, there is a duty to consider the evidence in its entirety,
    not simply the evidence that inculpates the accused.  In my view, the failure
    to deal with two items that tended to exculpate the appellant  the balaclava
    and the evidence as to the height of the robber  amounts to an error of law
    sufficient to justify setting aside these convictions.

[87]

The
    question raised here is whether there was a duty on the part of the trial judge
    to consider the alternate theories of liability raised by the appellant on this
    appeal  namely, the possibility that Faith Watts, Jeremy Wooley or the
    unidentified third man involved in the north side fight was the stabber  two
    of which were never raised in argument before the trial judge.

(a)

Faith
    Watts as the possible stabber

[88]

The
    appellant argues that the trial judge did not give the evidence that suggested
    Faith Watts was the actual killer the attention it deserved. She argues that
    the case against Watts was as strong as the case against her, and that the
    trial judges failure to deal with that evidence is a misapprehension of
    evidence amounting to an error in law. The misapprehension is the trial judges
    failure to consider what would amount to exculpatory evidence vis-à-vis the
    appellant.

[89]

This
    same argument was advanced at trial and rejected by the trial judge.

[90]

In
    this court, we begin with two important defence concessions:

1.

The appellant
    does not dispute the trial judges finding that it was the appellant and Faith
    Watts who were involved in the south side altercation; and

2.

The appellant
    does not dispute that it was Faith Watts on the south side tending to Fresh
    after he was beaten by Hammond.

[91]

The
    appellant points to the following evidence in support of her assertion that it
    is as likely that Faith Watts was the stabber as it is that she was:

1.

Watts owned the
    knife;

2.

Watts testified
    that she introduced the knife into the fight;

3.

All of the stabbing
    could have been performed on the south side;

4.

Dranichak
    identified Watts as the enraged female at the bank machine;

5.

Fresh, who was
    beaten, was Watts boyfriend; and

6.

DNA evidence
    strongly implicates Watts.

Watts Owned the Knife

[92]

As
    the trial judge noted in his reasons, that fact did not preclude his finding
    that the appellant had the knife in both the south side and north side fights. He
    rejected most of Watts evidence as unreliable given that, as she said, she had
    been drinking most of the day and at one point injected oxycontin. The mere
    fact that she was likely the owner of the weapon does not necessarily lead to
    the conclusion that she was the one who used it.

Watts Testified
    She Introduced the Knife into the Fight

[93]

The
    trial judge inferentially rejected the evidence of Watts that she introduced
    the knife into the fight by concluding, as he did, that the appellant either
    borrowed the knife earlier in the day or took it at the time Hammond beat
    Fresh.

[94]

Faith
    Watts had testified that she had her knife in her hand and almost immediately
    after opening the knife she was disarmed by, she thought, Hammond.

[95]

First,
    the only fight Watts was involved in was the fight on the south side and no
    issue is taken with the trial judges finding that after that fight Watts
    remained on the south side to tend to Fresh.

[96]

Second,
    Hammond is caught on the video from the One of a Kind Pasta Shop, after the
    south side fight and before the north side fight, and he is unarmed and
    apparently uninjured.

[97]

Third,
    if Hammond had taken the knife during the fight on the south side, it is
    unlikely events would have turned as they did.

[98]

Fourth,
    the suggestion contradicts the evidence of Stopford and Paget, which was evidence
    the trial judge accepted, that it was the appellant who had the knife in the
    south side fight.

Watts Could
    Have Performed all of the Stabbing on the South Side

[99]

Again,
    the video evidence from the One of a Kind Pasta Shop would suggest that Hammond
    was uninjured between the south side and north side fights.

[100]

The blood spatter
    from Hammond, and indeed the appellant, is all on the north side of the street.
    The only blood spatter on the south side belongs to Fresh.

[101]

Finally, Hammond
    comes into possession of the knife only after the north side fight  at which
    point he is obviously seriously wounded and the appellant has been stabbed.

Dranichak
    Identified Watts as the Enraged Female at the ATM

[102]

I have dealt
    with this evidence. The trial judge was entitled to reject Dranichaks evidence
    as unreliable for the reasons he gave.

[103]

There was a
    preponderance of evidence identifying the appellant as the woman with Fresh on
    the north side of the street in pursuit of Hammond and Dranichak before the
    fight on the south side of the street began.

[104]

I note that in
    his closing submissions to the trial judge, defence counsel (not Mr. Campbell) pointed
    to the lies and fabrications in Dranichaks evidence, and said:

I submit this court must be very cautious in using any of the 
    evidence of Mr. Dranichak in your findings of fact.

Fresh, the
    man who was beaten by Hammond, was Watts Boyfriend

[105]

While this may
    have provided Watts with a motive, the fact remains and the evidence is
    undisputed that she remained on the south side with Fresh after he was beaten
    by Hammond. There is no evidence that places Watts on the north side while the
    fight there is ongoing.

DNA
    Strongly Implicates Watts

[106]

The trial judge
    dealt with this point as follows:

It is at this point that I will again refer to the DNA evidence.
    It established that there was more of Mr. Hammonds blood found on the footwear
    of Ms. Watts than was found on the footwear of Ms. Kish. The defence relies on
    this evidence to direct attention to Ms. Watts as the more likely perpetrator
    of Mr. Hammonds murder than Ms. Kish. The fact is that the amount of blood
    found on the footwear and clothing of many of the persons involved, including
    these two, is miniscule. It does not provide a solid foundation for making the
    type of distinction urged by the defence especially given that  there was blood
    on the street that all of these people could have stepped in or collected on
    their footwear after the stabbing of Mr. Hammond. This again shows some of the
    limitations of physical evidence.

[107]

In my view, this
    was a matter for the trial judge. He was there, he saw the amount of blood that
    was deposited on Watts boots and the very bottom edge of her shorts  he
    called the amounts miniscule.

[108]

There is no
    doubt that Watts walked the area of the stabbing after it was over while tending
    to her friend, the appellant, who had been stabbed on the arm. Not only is she
    observed by a number of witnesses doing so, she is captured on the CTV video. The
    crime scene was not preserved. Monica Sloan of the Centre of Forensic Sciences
    rejected defence counsels suggestion that the higher you go up on someones
    body the greater the investigative value of the sample, if it turns out to be
    someone other than the person?  This suggestion, of course, was in relation to
    the location of the victims blood found on the shorts worn by Faith Watts.

[109]

In my view, the
    trial judges conclusion that the DNA evidence was of little assistance in this
    case in terms of assisting in the identification of the person who stabbed Ross
    Hammond is well supported in the evidence.

[110]

I see no
    misapprehension by the trial judge. He considered the defence suggestion that Ms.
    Watts was the female with the knife in the fights.  He did not fail to
    consider or address this exculpatory evidence. To the contrary, he considered
    it and rejected it for the reasons he gave.

(b)
Jeremy Wooley as the possible stabber

[111]

I would note
    that defence counsel did not argue or suggest at trial that Jeremy Wooley may
    have been the stabber. That being the case, it is hardly surprising that the
    trial judge did not deal with this theory in his reasons. Such a theory is in
    my view utter speculation and is without foundation in the evidence.

[112]

There is no
    reliable evidence that places Wooley on the south side at the time that the fight
    between Hammond and Fresh took place. The trial judge found that it was Fresh,
    the appellant, and Watts who were in pursuit of Hammond and Dranichak after the
    initial confrontation at the ATM. Dranichak left the scene, leaving Fresh, the
    appellant, Watts and Hammond as the four people involved in the fight on the
    south side of Queen Street. The only evidence concerning Wooley is a vague
    suggestion by Cam Bordignon about a bigger, husky guy being an onlooker as
    the south side fight took place.

[113]

Bordignon was
    heading to a bar with two of his friends after having had a few drinks at a
    friends place. He said he had a good buzz going to the bar.

[114]

He said he
    observed three or four street kids moving in the same direction after the two
    jocks. One was a male that initially went to fight one of the jock guys  a
    tall and skinny street kid.

[115]

Bordignon also
    recalled a bigger, husky guy, maybe about 200 pounds. He thought he had a
    scruffy appearance and was unshaven. He said he remembered these two street
    kids because of the fights, plural, that he had seen.

[116]

Bordignon did
    not know if any of the street kids he had seen crossing from the north side of
    the street to the south side were women. He watched the fight between Hammond
    and Fresh  they were the only two he recalled being in that fight. Bordignon said
    that the skinnier street kid was tended to after the fight by a female street kid
    who appeared to be his girlfriend.

[117]

Asked where the
    bigger, huskier street kid went he responded:

Um, I really noticed him when the fight moved across the street
    north.

[118]

On the north
    side he remembered two or three street guys beating on the jock guy  they had
    the jock on the ground and were punching and kicking him.  He remembered the
    huskier street kid saying you die tonight.

[119]

There is no
    evidence that Wooley was involved in the south side fight. The only fight he was
    involved in was the north side fight.

[120]

If Wooley was
    the stabber, someone had to get the knife to him, and the only person it could
    have been logically, was the appellant.

[121]

It was Faith
    Watts knife. Stopford and Paget saw the knife in the appellants possession on
    the south side. Watts remained on the south side with Fresh. Only the appellant,
    who went to the north side in pursuit of Hammond, could have transferred the
    knife to Wooley.

[122]

If she did transfer
    the knife, the evidence is that the statement by Wooley you die tonight is
    made as the beating of Hammond is underway, and the beating continues for a
    time after the statement is made.

[123]

The evidence is
    clear and the appellant concedes that she was the woman involved in the north
    side fight where she herself was stabbed.

[124]

The fact is that
    the appellant was an active participant in the north side fight  where a
    vicious beating was administered to Hammond  from its start to its finish and she
    continued her participation after hearing Wooley utter the words you die
    tonight.

[125]

If Wooley
    administered the fatal stab wounds, the appellant would still be guilty of
    second degree murder as a party.

[126]

However, there
    is no evidence that places Wooley in such close proximity to the south side
    fight that he could have received the knife from Watts.

[127]

To suggest he
    was the stabber is, on the record, speculative at best.

(c) Third man as
    possible stabber

[128]

There is
    evidence that a third unidentified male was involved in the north side fight. However,
    there is simply no evidence to support an inference that he was the stabber
    other than his involvement in that fight.

[129]

There is no
    evidence he was ever seen on the south side while that altercation was ongoing.

[130]

The fact that
    the unidentified male left the scene after the north side fight does not make
    it any more likely that he was the stabber.

[131]

We know an
    unknown male was involved and that an unknown male told Shawn Park that he had
    been stabbed in a fight. That is the extent of the evidence and it is hardly
    enough to raise any doubt let alone a reasonable one.  Further, it was not a
    ground argued at trial.

[132]

In my view,
    there is no basis to conclude that the trial judge misapprehended the evidence
    by failing to deal with exculpatory evidence as the appellant has argued.

[133]

The trial judge
    dealt with, and rejected for the reasons he gave, the submission that Faith
    Watts was the stabber. That is not a misapprehension of evidence.

[134]

Further, the
    suggestion that either Wooley or the unidentified third man were possible
    stabbers was not argued at trial.

[135]

In any event,
    for the reasons given, in my view there is simply no evidentiary basis on which
    to make such an argument.

DISPOSITION

[136]

I would dismiss
    the appeal.

Released: March 10, 2014 STG

J.
    MacFarland J.A.

I
    agree S.T. Goudge J.A.

I
    agree E.A. Cronk J.A.





[1]
The trial judge concluded that the two females who were attempting to assist
    Fresh were the appellant and Watts. The appellant does not dispute this
    finding.


