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Transcripts

    Robinson Examination in Manslaughter Trial

    2010-08-05

  • This is the transcript of a witness who gives evidence for the crown, that he saw the client hit and kill the "victim". On Cross-examination it was shown that the witness could not have seen anything because his view was blocked by a wall and eventually it was shown that at the witness was looking away from the scene waiting for his drug dealer to show up. There are numerous other inconsistencies exposed as well.
  •  Friday, February 6th, 2009 1 M. Robinson -- cr-ex. (Boggs) 1 SUPERIOR COURT OF JUSTICE 2 (Toronto Region) 3 4 HER MAJESTY THE QUEEN 5 6 -against- 7 8 SERGEI IVALEV 9 10 11 --- Before the HONOURABLE MADAM JUSTICE CROLL at the 12 Metropolitan Toronto Courthouse on February 6th, 13 2009. 14 15 16 ------------------------------------------------------------- 17 TESTIMONY OF MARVIN ROBINSON ON FEBRUARY 6TH, 2009 18 ------------------------------------------------------------- 19 20 A P P E A R A N C E S : 21 R. Kleinhenz, Ms. For the Crown 22 R. Levin, Ms. For the Accused 23 R. Boggs, Esq. 24 25 Friday, February 6th, 2009 2 M. Robinson -- cr-ex. (Boggs) 1 INDEX OF PROCEEDINGS 2 Page 3 4 FRIDAY, FEBRUARY 6TH, 2009 5 MARVIN ROBINSON: Sworn. 3 6 Examination in-chief by Ms. Kleinhenz 4 7 Cross-examination by Mr. Boggs 37 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Friday, February 6th, 2009 3 M. Robinson -- cr-ex. (Boggs) 1 FRIDAY, FEBRUARY 6TH, 2009 2 3 REPORTER'S NOTE: Court already in session. 4 5 THE COURT: Is your next witness here? 6 ·MS. KLEINHENZÈ: Yes, he is. 7 THE COURT: We'll start for 15 minutes and then 8 we'll break. 9 ·MS. KLEINHENZÈ: Detective Gibson was just going 10 to get him. 11 12 MARVIN ROBINSON: Sworn. 13 14 THE REGISTRAR: Thank you. You may be seated. 15 THE COURT: Good afternoon, Mr. Robinson. 16 THE WITNESS: Good afternoon. 17 THE COURT: I'm going to ask you to speak 18 loudly, slowly and clearly. We're just going 19 to get started and then we're going to break 20 for lunch. 21 THE WITNESS: Okay. 22 THE COURT: But the Crown will be able to ask 23 you a few questions and then we'll be back at 24 2:15. 25 ·MS. KLEINHENZÈ: Okay. Thank you, Your Honour. Friday, February 6th, 2009 4 M. Robinson -- cr-ex. (Boggs) 1 2 EXAMINATION IN-CHIEF BY ·MS. KLEINHENZÈ: 3 Q. Hello Marvin, Mr. Robinson. 4 A. Hello. 5 Q. You have been brought to court today to 6 speak about an incident that you observed back in May of 7 2007, right? 8 A. (No verbal response). 9 Q. You need to indicate a yes or a no, you 10 can't nod, because the reporter needs to write down-- 11 A. Yes. 12 Q. --any responses. Thank you. And back in 13 May of -- well, first of all, how old are you, sir, now? 14 A. I'm 32. 15 Q. Thirty-two. Okay. And back in May of 16 2007, do you remember where you were living? 17 A. Yeah, I was on the street. I was living on 18 the street. I was homeless. 19 Q. And has that condition changed now? 20 A. Yeah. Yes. 21 Q. And you have a place to live now? 22 A. Yeah, I'm back home with my mom. 23 Q. When did you move back with your mom? 24 A. I'm not certain. A while ago. Maybe a 25 year ago. Friday, February 6th, 2009 5 M. Robinson -- cr-ex. (Boggs) 1 Q. A year ago. Now, on the day of May the 2 30th, do you remember what you did in the morning that day? 3 A. I was outside like I usually am. 4 Q. Where were you usually sleeping back then? 5 A. All over. 6 Q. Okay. And do you remember the night before 7 May the 30th, May 29th, do you remember where you stayed that 8 night? 9 A. Yeah. 10 Q. Where? 11 A. I was at a mall, Dragon Centre. Yeah, I 12 was at Dragon Centre. 13 Q. Okay. Do you know where Dragon Centre Mall 14 is? 15 A. It's in between Spadina and Queen. 16 Q. Okay. And where would you sleep in the 17 mall? 18 A. At the front. At the front -- front 19 entrance by the doors. 20 Q. Okay. And is there -- are there a lot of 21 entrances to this mall? 22 A. No, there's just the one front entrance. 23 Q. One front entrance. And do you know what 24 street that one is on, that front entrance? 25 A. I'm not sure. Friday, February 6th, 2009 6 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. Is it on the street that goes north 2 and south or the street that goes east and west? 3 A. It goes south. 4 Q. South? 5 A. North and south. 6 Q. Okay. And did you spend most of your day 7 at Dragon Centre Mall? 8 A. I spent the whole day there. 9 Q. Now, after it got dark, what were you doing 10 then? 11 A. Me and three other guys we were at the 12 curb. We were drinking and just hanging out. 13 Q. Okay. 14 A. I wasn't really drinking. They were 15 drinking but, yeah, I was with them. And um... we were 16 drinking for a while and I was smoking a cigarette. And what 17 I remember, I went back in the mall after I finished my 18 cigarette then I came back out and two of the guys that were 19 there were arguing, started arguing. And, um, one of the 20 guys was an older dude, I don't know his name, and the 21 younger dude I don't know his name either but I know he's in 22 the court today. I can see him right here. I'm looking at 23 him. 24 Q. Where is he? 25 A. He's in the booth box right there in the Friday, February 6th, 2009 7 M. Robinson -- cr-ex. (Boggs) 1 blue sweater. He was arguing with the older guy. I know the 2 older guy. And they weren't arguing long, then I just seen 3 him jump up and give buddy a punch. 4 Q. Okay. Who jumped up? 5 A. The younger guy, the guy that's in the 6 courtroom today. 7 Q. Okay. 8 A. And buddy fell down, the older guy that I 9 know fell down, and I ran back in the mall and I stayed in 10 the mall for a while. And when I came back out shortly 11 after, I don't know, I would say 15, 20 minutes, somewhere 12 around there, there were police cars, ambulance and, yeah, 13 that's all I remember. And they came up to me and asked me 14 if I seen what happened and I told them what I just said and 15 that was that. 16 Q. Okay. 17 A. Pretty much that was that. 18 Q. Okay. Now, the older guy you're talking 19 about, did you ever know him by name? 20 A. No, I just used to call him "Pops" because 21 he was a really older guy, right? So I just -- usually when 22 somebody is in that -- in that old bracket to me, I just call 23 him "Pops" or something near that effect. 24 Q. Okay. 25 A. Yeah. Friday, February 6th, 2009 8 M. Robinson -- cr-ex. (Boggs) 1 Q. You mentioned you were drinking -- there 2 were three guys there? 3 A. Yeah. 4 Q. Okay. Who was the third guy? Can you 5 describe him or tell me something about him? 6 A. I don't know, he wasn't really there long. 7 It was -- it was -- it was like that guy wasn't really there. 8 He just was there off and on. A black guy. It was a black 9 guy. I couldn't remember his name at the time, but he had no 10 leg. He was missing one leg. His name is Tony, I believe. 11 Afterwards I realized his name was Tony. But, yeah, he was 12 there as well. 13 Q. Okay. And were there any other guys there 14 with the older guy and the short guy? 15 A. There was -- there was me and there was the 16 older guy and the guy that's in the booth today and another 17 dude and I don't -- I don't really remember anything much 18 about him, right, but yeah that's about it. 19 Q. Okay. 20 THE COURT: I know we have just started, but 21 just if you have one or two more questions and 22 then we will break. 23 ·MS. KLEINHENZÈ: Okay. 24 25 Friday, February 6th, 2009 9 M. Robinson -- cr-ex. (Boggs) 1 BY ·MS. KLEINHENZÈ: 2 Q. So we've got you, the fellow the black guy 3 you said with the one leg? 4 A. Yeah. 5 Q. The older dude, the little dude and 6 somebody else? 7 A. Yeah, the older guy and the younger dude 8 that's in the penalty box right now, yeah. 9 THE COURT: The penalty box. 10 THE WITNESS: I just call it the penalty box, 11 ma'am. 12 THE COURT: Fair enough, Mr. Robinson. 13 14 BY ·MS. KLEINHENZÈ: 15 Q. And then one other guy, the guy you're not 16 too familiar with. 17 A. The older guy. 18 Q. The older guy. 19 A. That's it. The older man. The guy that I 20 called "Pops". 21 ·MS. KLEINHENZÈ: Okay. Perhaps we should break 22 at that point. 23 THE COURT: Okay. 24 ·MS. KLEINHENZÈ: I will go into another area. 25 THE COURT: Yes, that's fair enough. We will Friday, February 6th, 2009 10 M. Robinson -- cr-ex. (Boggs) 1 be back at 2:15. Mr. Robinson, I don't want 2 you discussing your evidence with any other 3 people and any of the evidence that you have 4 given so far with the Crown Attorney. You can 5 have other discussions, if necessary, but 6 nothing about what you have said so far; do you 7 understand that? 8 THE WITNESS: I understand. 9 THE COURT: Okay. Two fifteen, sir. 10 THE REGISTRAR: Court is in recess. Please 11 clear the courtroom. 12 13 R E C E S S (12:52 p.m.) 14 15 U P O N R E S U M I N G (2:25 p.m.) 16 17 THE COURT: Good afternoon. 18 ·MS. KLEINHENZÈ: Good afternoon, Your Honour. 19 THE COURT: Mr. Robinson. 20 21 MARVIN ROBINSON: Resumes witness stand. 22 23 EXAMINATION IN-CHIEF BY ·MS. KLEINHENZÈ (CONTINUED): 24 Q. Okay, Mr. Robinson, before lunch you ran us 25 through the scenario of what happened that night that you Friday, February 6th, 2009 11 M. Robinson -- cr-ex. (Boggs) 1 saw. I want to ask you a couple of things referring back to 2 that. First of all, the fellow you referred to as "Pops", 3 the older gentleman, can you describe him? 4 A. He's a taller -- he's a tall guy. I would 5 say he's about my height, I'm like 6'3". He's an older dude. 6 He's just an older man, older white guy and um... 7 Q. Do you remember what he was wearing that 8 night? 9 A. I think he had a pair of jeans on and maybe 10 a sweater. I wasn't really remember -- really remember right 11 now... 12 Q. Okay. 13 A. ...what he was wearing. 14 Q. Okay. And you pointed out the accused 15 before the Court as being the shorter male that was there? 16 A. Yeah. 17 Q. Do you remember what he was wearing? 18 A. Yeah, he was wearing a blue jeans and baby 19 blue and white sweater. 20 Q. Okay. Now, when you were -- do you 21 remember around what time you first saw the -- I guess for 22 the sake of clarity we can call him "Pops" because that's 23 what you referred to him as. 24 THE COURT: "Pops"? 25 Friday, February 6th, 2009 12 M. Robinson -- cr-ex. (Boggs) 1 BY ·MS. KLEINHENZÈ: 2 Q. That's what you referred to him as? 3 A. Yeah. 4 Q. Do you remember what time you saw Pops that 5 night? 6 A. The first time I seen him? 7 Q. Yeah. 8 A. He was there all day mostly. 9 Q. Most of the day? 10 A. Yeah, he was there for most of the day, 11 early evening. Maybe about one o'clock, two o'clock since 12 then, since the nighttime, yeah. 13 Q. And what about the accused, do you remember 14 what time he came on the scene? 15 A. He came in the evening. 16 Q. Okay. 17 A. He came in the evening time. He wasn't 18 there all day, he was there in the evening time. 19 Q. Okay. And when you told Her Honour that 20 you were watching this, you had gone from the area where they 21 were congregated or hanging around to the inside of the mall, 22 can you describe the area that's the inside of the mall, 23 those main doors that you're talking about? 24 A. Describe the inside of the mall? 25 Q. Yes. Friday, February 6th, 2009 13 M. Robinson -- cr-ex. (Boggs) 1 A. There's the front -- there's two sets of 2 doors. There's the front doors leading to go outside to the 3 outside and then there's the next set of doors leading to go 4 inside the mall. 5 Q. And between those two sets of doors, what's 6 in between there? 7 A. There's pay phones. There's stairs leading 8 up going to a karaoke place and ah there's a little place 9 there in the morning where they make these Chinese um... 10 cakes, these cakes. 11 Q. Okay. 12 A. Yeah. 13 Q. Okay. And when you were making the 14 observations, when you saw Pops and the accused outside, 15 behind which set of those doors were you standing? 16 A. The first set of doors. In between the 17 first -- the first set of doors. 18 Q. Okay. And were any of the doors open? 19 A. Yeah, they're always open. 20 Q. Okay. 21 A. Like how do you mean open? 22 Q. Physically open as opposed to the mall 23 being open, the door being actually open. 24 A. No. No. Those doors were closed. They 25 were all closed. The doors were closed. Friday, February 6th, 2009 14 M. Robinson -- cr-ex. (Boggs) 1 Q. And did you have any trouble seeing outside 2 of those doors? 3 A. No. 4 Q. Okay. Now, did you have any interaction or 5 did you have any conversation or anything with the accused 6 before the Court prior to this happening that day? 7 A. Yeah, he was asking me a question. I don't 8 know if he was asking me for a cigarette or something and I 9 said no I didn't have -- I didn't have a cigarette. That's 10 the only interaction I had with him. 11 Q. Okay. 12 A. It was maybe for like a minute, if that. 13 Q. All right. And whereabouts were you 14 physically, were you inside, outside? 15 A. We were outside on the corner like where we 16 all were drinking. We were on the corner. 17 Q. And when you had this conversation with the 18 accused, was there anything else that you were talking about 19 with him? 20 A. No. 21 Q. Okay. Did you make any observations of him 22 at that time? What did you think of him? 23 A. I wasn't really focusing on him. 24 Q. Okay. Now, when you saw -- when you 25 described what you saw, do you remember which direction Pops Friday, February 6th, 2009 15 M. Robinson -- cr-ex. (Boggs) 1 was facing when he was hit? 2 A. Yeah. 3 Q. Or you saw him get hit? What direction? 4 Was his back to you, his front to you, sideways? 5 A. His back was to me. 6 Q. And you said you thought it was preceded by 7 an argument? 8 A. Pardon me? 9 Q. You said you thought the hitting was 10 preceded by an argument of some sort? 11 A. Yeah. 12 Q. Could you hear anything of what was being 13 said? 14 A. No. No. 15 Q. Do you know which language they were 16 speaking? 17 A. Which language who was speaking? 18 Q. Pops and the accused. 19 A. I take it as English. I don't know. I 20 didn't hear it. 21 Q. Okay. Fair enough. 22 A. I'm taking it as English. 23 Q. All right. So when you go inside -- you 24 were conversing with them in English when you talked to them? 25 A. Yes. Friday, February 6th, 2009 16 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. So when you go inside and you're 2 standing between after -- behind those first set of doors and 3 you see the punch, now you mentioned you saw Pops went down? 4 A. Yeah, I seen him -- I seen him -- I seen 5 him fall down. I didn't -- I didn't really focus if he fell 6 left or he fell right. I think he fell backwards but, yeah, 7 he fell down. 8 Q. What did the accused do after he fell to 9 the floor, after Pop's fell? 10 A. He ran down. He ran. 11 Q. Okay. 12 A. He ran. He ran off. 13 Q. All right. Do you know what direction he 14 ran to? Do you remember? 15 A. Yeah, he ran towards the McDonalds ways, 16 that would be Queen and Spadina towards that way. I think he 17 ran down to Queen and Spadina ways, if that's Queen and 18 Spadina ways, because opposite you go to Spadina and College, 19 right, so, yeah, he went to Spadina and Queen way. I think 20 he ran towards Queen and Spadina. 21 Q. You say you think he ran? 22 A. Yeah. 23 Q. Are you -- 24 A. I know he ran, but I'm not sure which way 25 he ran. Friday, February 6th, 2009 17 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. Okay. That's fine. Now, Marvin, 2 you know you have a criminal record, right? 3 A. Yeah. 4 Q. Yeah? You have been in trouble with the 5 law a few times, several times? 6 A. Yeah. 7 Q. Yeah. And, actually, at the preliminary 8 hearing when you testified you had been in custody that 9 night? 10 A. Yeah. 11 Q. And you were arrested -- 12 THE COURT: In custody what night? 13 ·MS. KLEINHENZÈ: Sorry. 14 15 BY ·MS. KLEINHENZÈ: 16 Q. The night prior to the time you testified 17 at the preliminary hearing? 18 A. Yes. 19 Q. Okay. And have you used drugs in the past? 20 A. Yeah. 21 Q. Okay. And are you still using drugs? 22 A. No. 23 Q. When did you stop? 24 A. I don't know. I know I'm six months clean 25 right now. Friday, February 6th, 2009 18 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. 2 A. So six months clean of using drugs right 3 now or around six months. 4 Q. And at the time that you -- at this 5 incident, had you during that day either in the day portion 6 or the evening portion used any drugs? 7 A. Yes. 8 Q. What did you use that day? 9 A. Marijuana. 10 Q. Okay. And how often during the daylight 11 hours did you smoke marijuana that day? 12 A. How often -- could you repeat that? 13 Q. During the daylight hours of May the 30th. 14 A. Yeah, I heard that part. 15 Q. How many times did you smoke marijuana? 16 A. A few. 17 Q. Okay. 18 A. Maybe like three times, four times. 19 Q. Okay. And what about once it turned dark 20 in the evening hours? 21 A. No, I wasn't high anymore. Because at that 22 particular time before the incident, I was actually 23 waiting -- waiting for my -- my buddy to bring more, right. 24 That's one of the reasons why I was waiting in the mall. 25 Q. Okay. After Pops went down and you went Friday, February 6th, 2009 19 M. Robinson -- cr-ex. (Boggs) 1 back into the mall you said. 2 A. Mm-hmm. 3 Q. And did you move away from those front 4 doors? 5 A. No. 6 Q. You stayed at the front doors? 7 A. Yeah, I was there the whole time. 8 Q. Okay. Did you ever see Pops get up again? 9 A. No. 10 Q. Okay. Now, did you go outside again to 11 check on him or to do anything? 12 A. Yeah, I went outside to smoke a cigarette. 13 Q. Okay. 14 A. And I -- I -- I almost made it outside, but 15 I didn't -- I didn't fully go outside because I seen Pops and 16 I seen ambulance and I said I don't want -- I don't want to 17 be outside when those people are there, obviously. 18 Q. How come? 19 A. Huh? 20 Q. How come you didn't want to be outside? 21 A. I didn't want to be questioned. I didn't 22 want to be bothered. I didn't want to be involved. 23 Q. Okay. But you did get involved. 24 A. Yeah. 25 Q. How did that happen? Friday, February 6th, 2009 20 M. Robinson -- cr-ex. (Boggs) 1 A. Because I -- because I -- because I came 2 out the mall eventually and they were still there and one 3 officer -- one detectable [sic] came -- detective came to me 4 and he was speaking to me and I told him a wrong name. I 5 told him my name was Terry Mills I think at the time. I gave 6 him my correct phone number and my correct birth date. And 7 he asked me if I seen anything what happened and I told him 8 what happened, what I seen. And I asked him if he could talk 9 to me at the side of the mall because at that time I was 10 selling movies for the triads and I didn't really want to be 11 seen, being seen spoken [sic] to the cops, so I asked him to 12 do that and he moved me to the side of the mall. And another 13 police officer started questioning me and I said you guys 14 have my contact number, if I'm needed to go to court, I'll 15 come to court and whatever, that was it. I just had a 16 conversation with them and they let them go. That was it. 17 Q. So you said you spoke to two officers? 18 A. Yeah, one -- one -- one, um, what do you 19 call it, detective and whatever, and then one actual police 20 officer in uniform. 21 Q. In uniform? 22 A. Yeah. 23 Q. Okay. 24 A. But the first guy I talked to, I don't 25 know, he wasn't in uniform, so he was like an undercover or Friday, February 6th, 2009 21 M. Robinson -- cr-ex. (Boggs) 1 whatever. 2 Q. Okay. 3 A. He wasn't in uniform. And then another 4 officer in a uniform pulled up and was speaking to me 5 afterwards. 6 Q. Okay. And how come you gave him the name 7 Terry Mills? 8 A. I had warrants. I had charges. I just 9 didn't -- basically that was part of the reason and the other 10 half was I just didn't want to be involved. 11 Q. Okay. Now, we have -- were you aware that 12 there was closed circuit tv around the outside of the Dragon 13 City Mall? 14 A. Not at all, no. 15 Q. You are now, though, aren't you? 16 A. Yeah. 17 Q. And you had occasion to watch a videotape 18 at the preliminary hearing? 19 A. A little bit of it, yeah. 20 Q. Yeah. Okay. So if I may, Your Honour, I 21 would like to show Mr. Robinson some of the video and I'm 22 going to ask you if you can find yourself on the video, okay? 23 And I'm going to actually... I was actually going to bring 24 my computer up for him to see, but I just realized I'm hooked 25 into this thing. There's not a lot of cord there. See, it Friday, February 6th, 2009 22 M. Robinson -- cr-ex. (Boggs) 1 worked when I put it up there earlier. Would it be possible 2 for him to step a little bit further down? 3 THE COURT: Yes. Mr. Robinson, you can step 4 down so that you can see the computer. Are we 5 playing a lengthy part? Do we need a chair for 6 Mr. Robinson? 7 ·MS. KLEINHENZÈ: There will be a few parts, but 8 just several short parts. 9 THE COURT: Tell us if you want to sit down. 10 ·MS. KLEINHENZÈ: You are pretty tall so... 11 THE COURT: Maybe he should sit. Thank you, 12 Officer. 13 14 BY ·MS. KLEINHENZÈ: 15 Q. Okay. So I'm starting at 22:09 on the top 16 of the screen, 22:09:08, and I'm going to hit play, 17 hopefully. 18 19 ...Video commences playing. 20 21 Q. Okay. Now, Mr. Robinson, do you see 22 yourself -- 23 A. I'm right there. 24 Q. What are you pointing to? 25 A. Me. Friday, February 6th, 2009 23 M. Robinson -- cr-ex. (Boggs) 1 Q. What are you wearing there? 2 A. A white t-shirt and jeans and I have -- I 3 think I have my shirt in my hand. 4 Q. Okay. And what are you doing with your 5 other hand? 6 A. I'm on the phone. 7 Q. Now, do you recognize the man sitting down 8 on the left-hand side of the screen? He seems to be hunching 9 forward? 10 A. Yeah, that's Pops. 11 Q. That's Pops. Okay. Do you remember that 12 part of the night? 13 A. No. 14 Q. That's okay. Okay. Now, I'm showing you 15 this next screen is 22:23:58 on the video. 16 17 ...Video continues. 18 19 Q. All right. Do you recognize any of the 20 people standing in the centre at the bottom of the screen, 21 the three men? 22 A. Yeah. That's Pops and that's the buddy -- 23 the guy in the penalty box. 24 Q. So the man on the left is Pops? 25 A. Yeah. Friday, February 6th, 2009 24 M. Robinson -- cr-ex. (Boggs) 1 Q. And you're pointing -- 2 A. And the shorter guy is the guy that's in 3 the -- that's in the penalty box right there. 4 Q. And what about the fellow who seems to have 5 his shirt off there, do you recognize him at all? 6 A. No, I can't remember. 7 Q. Okay. And what about the fellow that just 8 sat down? This is 22:24:25. 9 A. No, that -- no. 10 Q. You don't recognize him? 11 A. No. 12 Q. Are you in that picture? 13 A. Yeah, I'm right there in the middle. 14 Q. Okay. So we're at 22:24 and following. 15 Now are you still seeing yourself in the screen? 16 A. Yeah. Yeah. 17 Q. Do you have any memory of what's going on 18 at this point? 19 A. Those two guys are -- the two guys are 20 drinking. 21 Q. And which two guys are you talking about? 22 A. The guys that were sitting down and now 23 Pops is sitting down, so they're all drinking. 24 Q. Okay. 25 A. They're all drinking. Friday, February 6th, 2009 25 M. Robinson -- cr-ex. (Boggs) 1 Q. And you're still in the screen? 2 A. Yeah, I'm right there. I'm still there. 3 I'm still there on the phone. 4 Q. I'm going to take you further in time here 5 through the magic of CCTV to 23:50 -- sorry, 22:50. Sorry. 6 If I can get there. Close enough, 22:49:58. Do you see 7 yourself? 8 9 ...Video continues. 10 11 Q. I'm going to go to full screen at 22:50:13. 12 Do you recognizes anybody in that photo, in the tape now? 13 A. Yeah, that's Pops. 14 Q. And which one of the three men are you 15 pointing to? 16 A. In the middle. I think he's in the middle 17 right here (indicating). 18 Q. Okay. Do you see yourself at this time, 19 22:50:41? 20 A. No. 21 Q. Who's standing there? 22 A. The guy in the penalty box. I'm back in 23 there now. There I am. 24 Q. Where are you now? 25 A. Right there (indicating). Friday, February 6th, 2009 26 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. You're pointing to the person that 2 just came out of the mall? 3 A. Yeah, that's me. I just came out. There I 4 am. 5 Q. Do you know what's happening at this point? 6 A. Yeah, we're just -- we're just talking, 7 still drinking. 8 Q. Do you see anybody drinking right there? 9 A. No, I can't really see anybody drinking, 10 but I knew we were drinking. 11 Q. Okay. Did you take a drink there? 12 A. Yeah, I was asking for a drink. I -- I -- 13 I just took a drink right now. 14 Q. Okay. 15 A. That's why I came out of the mall. I came 16 out of the mall to ask for a drink, to ask for a drink. 17 Q. Okay. 18 A. I'm still drinking and smoking a cigarette. 19 Q. And smoking a cigarette? 20 A. Yeah. 21 Q. At 22:52:52 do you see yourself in the 22 screen? 23 A. Yeah. 24 Q. Where are you now? 25 A. I'm gone now. I just went back to the Friday, February 6th, 2009 27 M. Robinson -- cr-ex. (Boggs) 1 mall. 2 Q. Are those doors that you keep going in and 3 out of-- 4 A. Yes. 5 Q. --are those the doors you referred to 6 earlier-- 7 A. Yes. 8 Q. --when we talked about -- 9 A. Yeah, those -- yeah, those are the doors 10 I'm referring to. 11 Q. And I'm going to move ahead now to 23:09, 12 if I can get there. Actually, I will stay at 23:08 so I 13 don't mess it up too much. So this is 23:08:18, 19, 20. How 14 about the three guys in the -- 15 A. They're still there. 16 Q. Which one is Pops? Can you tell? 17 A. No. I think Pops is the one over here 18 (indicating). 19 Q. You're pointing to the first person-- 20 A. Yeah, the first person. 21 Q. --of the three? 22 A. Yeah. 23 Q. The first person, the northern most person? 24 A. Yeah. 25 Q. Did you stay inside the mall that time? Friday, February 6th, 2009 28 M. Robinson -- cr-ex. (Boggs) 1 A. Pardon me? 2 Q. When you just went inside the mall, did you 3 stay in there for a while? 4 A. I was just right there. I wasn't deeply in 5 the mall, I was just in between the doors where I always 6 stay. 7 Q. Okay. Do you know what's directly behind 8 where the men are sitting? 9 A. Pardon? 10 Q. Do you know what's directly behind where 11 the men are sitting? 12 A. Going this way or that way? 13 Q. Right behind them against the building. 14 A. What's directly behind them? 15 Q. The building. 16 A. No, it's a part of the mall. 17 Q. Okay. 18 A. This whole side is a part of the mall. 19 Q. Okay. 20 21 ...Video continues. 22 23 A. I'm in the video again. 24 Q. Okay. 25 A. And the one legged dude. Friday, February 6th, 2009 29 M. Robinson -- cr-ex. (Boggs) 1 Q. What was his name again? 2 A. His name is Tony. 3 Q. Tony is on crutches, is he? 4 A. Yeah. Not all the time, though. And 5 that's the guy that's in the penalty box. 6 Q. Okay. You're pointing to the man standing? 7 A. Yeah. 8 Q. Okay. 9 A. And that's me behind him. 10 Q. And you're still in the white shirt? 11 A. Yeah. 12 Q. What's happening here, do you remember? 13 A. No, we're just -- we're just talking. I 14 was talking to Tony, I think. I was talking to Tony. Tony 15 was asking me what's going on and I was just -- just -- just 16 drinking. I was just drinking. 17 Q. Do you see yourself drinking there? 18 A. Yeah. Yeah, I'm beside Tony. 19 Q. Okay. Now, who's standing there in front 20 of Tony? 21 A. The guy that's in the penalty box. I'm 22 gone. I just left. 23 Q. Where have you gone at that point? 24 A. Back into the mall. 25 Q. Okay. Did the accused say anything to you Friday, February 6th, 2009 30 M. Robinson -- cr-ex. (Boggs) 1 there before you went inside? 2 A. I can't really remember. I think he asked 3 me if I had a cigarette or something, I can't really remember 4 what he said. 5 Q. What were the other fellows doing before 6 you walked in? 7 A. Just talking. 8 Q. Before you walked into the mall? 9 A. Before I talked to Tony? 10 Q. No, before you went into the mall just now. 11 A. I think everybody was drinking. I can't 12 remember. I think everybody was just drinking and 13 conversating. 14 Q. Okay. 15 A. Okay. 16 Q. Okay. You said "okay". What are you 17 looking for? 18 A. That's Pops and the guy in the penalty box. 19 Q. Which is Pops? 20 A. The guy at the back. 21 Q. Okay. 22 A. The bigger guy. The taller guy. 23 Q. And where is Pops now? 24 A. He's not there anymore. 25 Q. And where is the accused now? Friday, February 6th, 2009 31 M. Robinson -- cr-ex. (Boggs) 1 A. Sitting down. 2 Q. This is 23:12:47? 3 4 ...Video continues. 5 6 A. The accused is leaving. 7 Q. During that sequence, was there anything 8 else that happened? 9 A. All I knew before -- just before Pops went 10 missing, there was an argument going on and that's it. 11 Q. Okay. 12 A. That was it. 13 Q. What happened to Pops? 14 A. Pops fell down. 15 Q. And is that the incident you were referring 16 to earlier when you testified at first? 17 A. Yeah. 18 19 ...Video continues. 20 21 Q. Now what's happening now? 22 A. The accused is leaving. 23 Q. This is 23:13. 24 A. I think he just went to grab his bag or 25 something, yeah. Friday, February 6th, 2009 32 M. Robinson -- cr-ex. (Boggs) 1 Q. Okay. Do you recognize that other person 2 standing up? 3 A. No. 4 Q. Okay. 5 A. Tony just stood up, though. The guy with 6 the crutches just stood up now. Everybody is leaving. 7 Q. Now, do you remember this? 8 A. No. I just remember -- I remember to the 9 point where everybody got up and started leaving. 10 Q. Okay. I'm just going to take you a little 11 bit further. Sorry, I didn't hit play there. 12 13 ...Video continues. 14 15 Q. Tell me if you see yourself again coming 16 into the screen at any time or anybody you recognize? 17 A. Yeah, Tony. 18 Q. Okay. You're pointing to the man with the 19 crutches? 20 A. Yeah, he's there on the edge looking. 21 Q. Do you know where you are at this time? 22 This was a minute later? 23 A. I'm maybe -- I think I'm at the front 24 still. I was at the front. 25 Q. Do you recognize that man that just walked Friday, February 6th, 2009 33 M. Robinson -- cr-ex. (Boggs) 1 up in the dark clothing? 2 A. No, I think he was -- I think he was 3 somebody in a uniform, maybe an ambulance or something or 4 something like that. 5 Q. Okay. You don't know. 6 A. No, I don't know. Personally I don't know. 7 I can't remember. 8 Q. Okay. 9 A. That's the same guy, though. I know that's 10 the same guy walking back and forth on the phone. Okay, I'm 11 back out now. 12 Q. Okay. You see yourself? 13 A. Yeah. 14 Q. Where are you? 15 A. Right here (indicating). 16 Q. So you're pointing coming out of the mall? 17 A. Yeah. 18 Q. What are you doing? 19 A. I'm looking at something. 20 Q. Do you know what you're looking at? 21 A. I can't remember. I think I -- I don't 22 know. I can't really remember, but it's possible that I was 23 looking at, um, Pops on the floor. 24 25 ...Video continues. Friday, February 6th, 2009 34 M. Robinson -- cr-ex. (Boggs) 1 2 Q. You're still in the frame? 3 A. Yeah, I'm still there. 4 Q. Do you know the other person? 5 A. Who? 6 Q. In the frame there? 7 A. No. 8 Q. What are you doing now? 9 A. I'm walking. I'm walking. 10 Q. We're at 23:20:59. Where are you standing 11 now? 12 A. Right on the ledge, front of the doors 13 outside. 14 Q. Do you remember where Pops is? 15 A. I think he's on the floor. 16 Q. Now where have you gone? 17 A. I went to the other side of -- the other 18 side of the doors on the left. 19 Q. Okay. 20 A. I left for a minute. 21 Q. Do you remember seeing anything happen to 22 Pops afterwards? 23 A. Pardon? 24 Q. Do you remember anything happening to Pops? 25 Did you see anybody come? Friday, February 6th, 2009 35 M. Robinson -- cr-ex. (Boggs) 1 A. Yeah, ambulance. Ambulance. I seen 2 ambulance, but I didn't actually -- I didn't actually see 3 them put him on a stretcher and take him away, but when I 4 came back he was gone, he wasn't there anymore. 5 Q. Okay. 6 A. And ambulance and police and officers and 7 everybody was still there, but he was gone. 8 THE COURT: Thank you. Marvin, do you want to 9 come back to this seat, sir. 10 THE WITNESS: Okay. 11 12 REPORTER'S NOTE: Marvin Robinson resumes witness stand. 13 14 BY ·MS. KLEINHENZÈ: 15 Q. Do you think if anybody called ambulance or 16 anybody? 17 A. No. No. No. 18 Q. You didn't call? 19 A. No. 20 Q. How come? 21 A. Pardon me? 22 Q. How come you didn't call? 23 A. I just didn't want to be involved. 24 Q. What made you change your mind about 25 getting involved? Friday, February 6th, 2009 36 M. Robinson -- cr-ex. (Boggs) 1 A. About getting involved? 2 Q. Yeah. 3 A. When the detective came and seen me in the 4 jail and he said that that -- that the person that I saw got 5 hit, he's -- he's -- he's possibly dead, he could be dead, 6 and I said okay -- 7 Q. How did that change your mind? 8 A. Because I said if -- if -- if he's dead, 9 well, justice -- I think justice should be served. The 10 person who did that should -- should -- should pay a price, 11 right? 12 Q. Okay. 13 A. So that's what I thought to myself. 14 Q. Just a brief indulgence, Your Honour. All 15 right, Mr. Robinson, that's all the questions I have for you, 16 but the defence counsel is going to have some questions for 17 you. 18 A. Okay. 19 THE COURT: Ms. Levin or Mr. Boggs? 20 ·MR. BOGGSÈ: If I may. 21 ·MS. LEVINÈ: Thank you, Your Honour. 22 THE COURT: Mr. Boggs is going to have some 23 questions for you. 24 THE WITNESS: Okay. 25 Friday, February 6th, 2009 37 M. Robinson -- cr-ex. (Boggs) 1 CROSS-EXAMINATION BY ·MR. BOGGSÈ: 2 Q. Mr. Robinson. 3 A. Yes. 4 Q. You were walking in and out of that door on 5 the video that we just saw? 6 A. Constantly, yes. 7 Q. All right. Now, that was the Dragon City 8 Mall that you were at? 9 A. Yes. 10 Q. All right. And do you recognize this as a 11 diagram of the Dragon City Mall? 12 A. No. 13 Q. You don't? 14 A. No. 15 Q. Do you see where it says Dragon City Mall 16 there? 17 A. Yeah, I see where it says Dragon City Mall. 18 Q. All right. And right beside those there's 19 a representation of doors? 20 A. Where would the reputation [sic] of doors 21 be? Where the dot is there? 22 Q. Where it says "Dragon City Mall"? 23 A. Okay. 24 Q. Directly to the right there's a 25 representation of doors? Friday, February 6th, 2009 38 M. Robinson -- cr-ex. (Boggs) 1 A. Okay. 2 Q. Do you see that? 3 A. Yeah. 4 Q. And there's a foyer area? 5 A. Yes. 6 Q. And another set of doors here (indicating)? 7 A. That's correct. 8 Q. Now, that's set up the way the Dragon City 9 Mall is, correct? 10 A. That's correct. 11 Q. All right. Now, when you were going 12 through the doors from the sidewalk, is it fair to say that 13 when you were sitting down, you were sitting down here at the 14 corner of this building? 15 ·MS. KLEINHENZÈ: Sorry, I can't see where you're 16 pointing, Mr. Boggs. 17 ·MR. BOGGSÈ: I will stand here. 18 THE COURT: Yes. 19 20 BY ·MR. BOGGSÈ: 21 Q. When you were sitting down with the other 22 gentlemen, you were sitting down right at the corner here of 23 this building? 24 A. I think that's where it is. I'm not really 25 getting where this map is, but, yeah, I would say that's Friday, February 6th, 2009 39 M. Robinson -- cr-ex. (Boggs) 1 where we're sitting. 2 Q. All right. And when you get up, you walk 3 to the left here and walk through where it says "East 4 Entrance" through those doors? 5 A. Yes. 6 Q. And when you get in there, you say that you 7 don't go into the mall? 8 A. No. 9 Q. You stay between those two sets of doors? 10 A. That's correct, because there's -- yeah, 11 there's another -- there's another set of doors right here 12 (indicating), right. 13 Q. That's the second? 14 A. Yeah, these are the doors to leading to go 15 on the outside and there's a foyer and then there's another 16 set of doors that go into the mall. 17 Q. All right. So when you were standing in 18 the foyer-- 19 A. Yeah. 20 Q. --you were standing somewhere around the 21 word "Foyer" in that document? 22 A. No, I was standing right at the front where 23 the doors are. 24 Q. Okay. 25 A. Right at the front. Friday, February 6th, 2009 40 M. Robinson -- cr-ex. (Boggs) 1 Q. In that space enclosed? 2 A. Yeah, right at the front doors. 3 Q. Marked by "Foyer". 4 A. Yeah. 5 Q. But you're closer to the front? 6 A. Yeah, I'm always at the front. 7 Q. All right. Now, were you to the north or 8 to the south of those doors? 9 THE COURT: Can you see? Maybe we can move it. 10 I don't know if that's going to help. 11 ·MR. BOGGSÈ: It might very well. I'm hard to 12 see around, I know that. 13 THE COURT: No, no. Perfect. Does that help? 14 ·MS. KLEINHENZÈ: It should, yes. Thank you. I 15 don't know, maybe it would be easier if you 16 describe where you're pointing as well for the 17 record. 18 THE COURT: Okay. 19 20 BY ·MR. BOGGSÈ: 21 Q. All right. Now, when you're standing at 22 the doors, were you standing at various locations or were you 23 in one spot more or less? 24 A. I was in one spot more or less. 25 Q. All right. Now, can you point to where you Friday, February 6th, 2009 41 M. Robinson -- cr-ex. (Boggs) 1 were? 2 A. Like I said, I didn't move from the front 3 of these doors. 4 Q. Okay. 5 A. Yeah. Because at the front of these doors, 6 there should be some phones right here. 7 Q. Mm-hmm. 8 A. And, ah, yeah, right here, the foyer, and 9 these are the north entrance. So I was right here 10 (indicating). I was never over this side really except for 11 the one time I -- I -- I left and I went around the corner 12 because I seen my friend, but, yeah, I was here at these 13 front doors. 14 Q. You're motioning the length of the doors. 15 A. Yeah. I was like right -- right -- like 16 right at the top part, though. I was right at the top part 17 at this corner at the doors. You're saying these are the 18 front doors. I was usually right at this corner here 19 (indicating). 20 Q. You say "usually"? 21 A. Yeah. 22 Q. Were you there most of the time? 23 A. Yeah, most of the time. I would say all of 24 the time except for one or two times I wasn't there, I was 25 probably in the foyer. But, yeah, most of the time I was Friday, February 6th, 2009 42 M. Robinson -- cr-ex. (Boggs) 1 here. 2 Q. All right. Now, do you know when exactly 3 you were standing at the corner by the door and when you were 4 roaming through the foyer? 5 A. What do you mean do I know? I was roaming 6 through the foyer later on, yeah, later on when the -- the 7 cops were -- cops were there and the paramedics and everybody 8 was there. I was roaming around the foyer from there to 9 those doors back and forth, around the outside, yeah. Before 10 the incident and when everybody was drinking for most of the 11 day, I was here (indicating). If I wasn't drinking with them 12 on the corner, I was right there on the top corner there. So 13 I could kind of see. I could kind of see here. I could kind 14 of see the wall or the curb or whatever you want to call it 15 where we were drinking. I could kind of see there, yeah. 16 Q. All right. So when you say kind of see, 17 you're recognizing that the corner of the building is a bit 18 of an obstruction to where those guys were in the video? 19 A. Yeah. Yeah. That's right. 20 Q. And after you get up and go into the foyer 21 by the front doors, the other two fellows get up and that's 22 when they have their argument? 23 A. No. You're asking me when I went into the 24 foyer is when these two guys got up? 25 Q. Well -- Friday, February 6th, 2009 43 M. Robinson -- cr-ex. (Boggs) 1 A. Is that what you're asking me? 2 Q. I can put you right to the video. 3 THE COURT: It was a bit of a confusing 4 question, Mr. Boggs, for me as well. 5 ·MR. BOGGSÈ: We'll just play it and he'll see. 6 THE COURT: It had a lot of compound parts to 7 it. 8 ·MR. BOGGSÈ: Understood. 9 THE COURT: Okay. 10 MR. BOGGS: A picture is worth a thousand 11 words, I guess. At 23:11. Can we cue it to 12 23:11? 13 ·MS. KLEINHENZÈ: Oh, you want me to? 14 ·MR. BOGGSÈ: I don't know how. 15 ·MS. LEVINÈ: We don't have control of the 16 buttons. 17 ·MS. KLEINHENZÈ: At 23:11? Okay. 18 THE COURT: You might get a bit of a traffic 19 jam down there if you want Mr. Robinson... 20 ·MR. BOGGSÈ: I can watch over here. 21 THE COURT: Okay. 22 ·MR. BOGGSÈ: Mr. Robinson, can you... 23 24 REPORTER'S NOTE: Witness leaves witness stand. 25 Friday, February 6th, 2009 44 M. Robinson -- cr-ex. (Boggs) 1 ·MS. KLEINHENZÈ: At 23:11:18, how's that? 2 ·MR. BOGGSÈ: Good. 3 ·MS. LEVINÈ: Actually, we need before that. 4 ·MS. KLEINHENZÈ: Sorry, are we going before that 5 then? 6 ·MS. LEVINÈ: Before that, yeah. 7 ·MS. KLEINHENZÈ: So you don't want 23:11 -- I'm 8 sorry, Your Honour. 9 ·MS. LEVINÈ: Just at the beginning. 10 THE COURT: Excuse me. Remarks are to be 11 addressed to me, not each other. 12 ·MS. LEVINÈ: My apologies. 13 THE COURT: Is that a good place to start, Mr. 14 Boggs, 23:10? 15 ·MR. BOGGSÈ: Yeah, that's fine. 16 17 ...Video commences playing. 18 19 BY ·MR. BOGGSÈ: 20 Q. Okay. You see that you've just sat down? 21 A. Yes, that's correct, I just sat down. 22 Q. Then the little guy is standing up? 23 A. That's correct. 24 Q. The fellow you're calling Pops is sitting 25 down beside Tony? Friday, February 6th, 2009 45 M. Robinson -- cr-ex. (Boggs) 1 A. That's correct. 2 Q. And you are closest to the doors? 3 A. That's correct. 4 Q. You get up -- 5 A. And there I am getting up. 6 Q. And you leave. You're inside the doors 7 now? 8 A. Yes. 9 Q. And the little guy sits down. 10 A. That's right. 11 Q. All right. So the argument hasn't happened 12 yet. 13 A. No. 14 Q. And you're now in the foyer? 15 A. No, I'm not in the foyer. I'm at the doors 16 still. 17 Q. Right, but inside the doors? 18 A. That's correct. 19 Q. Now the little guy just got up? 20 A. That's correct. 21 Q. And Pops gets up and walks towards him? 22 A. That's correct. 23 Q. And they are sort of circling around? 24 A. Yes. 25 Q. And this is where you said they had their Friday, February 6th, 2009 46 M. Robinson -- cr-ex. (Boggs) 1 argument? 2 A. Yeah. 3 Q. Okay, that's fine. You can stop. Can we 4 stop? Now, when they're circling around -- shall we go back 5 now? 6 A. Okay. 7 8 REPORTER'S NOTE: Marvin Robinson resumes witness stand. 9 10 Q. Now, when they're circling around like that 11 having their argument, you were on the other side of the 12 doors? 13 A. I'm outside by the doors like where I told 14 you, this corner right here (indicating). 15 Q. Right. 16 A. Right here (indicating). 17 Q. You're pointing on the wall there? 18 A. These are the doors and I'm outside. I'm 19 not inside the mall between the doors where the foyer, I'm 20 outside on this corner like right -- like right here. Kind 21 of like hiding right here (indicating). 22 Q. Now, when I asked you earlier, you said you 23 were in the foyer behind the doors. 24 A. No, I was outside always on the -- I'm 25 always at this corner at the doors. Friday, February 6th, 2009 47 M. Robinson -- cr-ex. (Boggs) 1 Q. You're always -- 2 A. When I say at the doors, I don't 3 necessarily mean I'm inside or outside, I'm just at the 4 corner. Like now I'm saying I'm outside directly right at 5 this corner, at the doors outside. Not in the foyer, but 6 right here (indicating). Right at this corner (indicating). 7 That's what I told you earlier. I could -- I could always -- 8 I could always see. I could always see this ledge where 9 they're sitting. 10 Q. Are you saying that you hadn't gone through 11 those doors? 12 A. No, I didn't go through the door. 13 Q. You didn't go through any doors? 14 A. No, not at that time. I was just -- I was 15 just there. I was just there right by the doors. 16 Q. And -- 17 A. Back and forth. Either here or there or 18 there or whatever, but, yeah, by the doors. I'm always by 19 the doors. 20 Q. And it's right after this argument that you 21 say that Pops went down? 22 A. Yeah. 23 Q. Right? 24 A. Yeah. 25 Q. All right. Now, you had gone inside the Friday, February 6th, 2009 48 M. Robinson -- cr-ex. (Boggs) 1 doors by that time? 2 A. No. 3 Q. No. So you were outside the building the 4 whole time? 5 A. By the doors, yeah. 6 Q. All right. 7 A. By the doors. 8 Q. All right. Now, I'm going to direct your 9 attention to a passage of the preliminary hearing. I have a 10 copy here. I will also pass up a copy of your interview with 11 the police. You remember giving testimony at the preliminary 12 hearing, right? 13 A. Yeah. 14 Q. And you swore to tell the truth, right, the 15 whole truth? 16 A. Yeah. 17 Q. Nothing but the truth? 18 A. Yes. 19 Q. And at the preliminary hearing you were 20 asked a series of questions... 21 A. Yeah. 22 Q. ...by Ms. Kleinhenz and also by defence 23 counsel? 24 A. That's right. 25 Q. And you were also asked a few questions by Friday, February 6th, 2009 49 M. Robinson -- cr-ex. (Boggs) 1 the judge? 2 A. Pardon me? 3 Q. You were also asked a few questions by the 4 judge? 5 A. Yes, that's correct. 6 Q. And when you were talking to the judge, in 7 particular, you were telling the truth? 8 A. Yeah, I was telling the truth, but back -- 9 back -- back -- back then I was -- I was incarcerated. Like 10 I said, I was tired. I -- I -- I was in a holding cell. I 11 did say I was in a bullpen all day and I had been threatened 12 and I wasn't really -- I was basically tired. And I was 13 still homeless at the time and, yeah, pretty much. 14 Q. Okay. All right. Now, on page 30 -- and I 15 will give you a set to read yourself, if you like. Would you 16 like that? 17 A. Pardon me? 18 Q. Would you like to read the testimony 19 yourself? 20 A. I've been reading it all day. 21 Q. Do you want to read it now or do you want 22 me to read it to you? 23 A. Okay, you can read it to me. 24 Q. Will do. Now, you're asked a question by 25 defence counsel about where you are and you give an answer Friday, February 6th, 2009 50 M. Robinson -- cr-ex. (Boggs) 1 and then the Court intervenes. The court says: 2 "Sorry, I think you may have your left and your 3 right mixed up. 4 "The Witness: Yeah. 5 "The Court: Just the way you are saying it 6 because you said left and right. Are you 7 saying towards Spadina Avenue? 8 "The Witness: Yeah. Like if that's the front 9 of the mall, they we're facing this way, yeah. 10 "The Court: Well, sir, that -- 11 "The Witness: Right way. The right. I don't 12 understand this total diagram here of this map 13 here. 14 "The Court: Well, that may be the problem. 15 Were you inside the mall when you made the 16 observations that you made? 17 "The Witness: The mall - I'll tell you how the 18 mall is. There's two doors. There's in 19 between the front door and then there's another 20 door to go inside the mall. I was in between 21 the two front doors looking out." 22 23 And at the top of 31: 24 25 "You see in that diagram there is something Friday, February 6th, 2009 51 M. Robinson -- cr-ex. (Boggs) 1 that says "East entrance"." 2 And your answer is: "East entrance, where is 3 that? 4 "The Court: Do you see that? Do you see 5 Dragon City Mall?" 6 Your answer: "Yes." 7 "Look to the right and you see the words "East 8 Entrance". 9 "The Witness: Behind it, yeah. 10 "The Court: Yes. Okay. 11 "The Witness: Yes. 12 "I assume that that is the entrance into the 13 foyer of the mall. 14 "The Witness: That's one entrance. There's 15 two close entrances. There's two - there's two 16 entrances. There's one where the Dragon City 17 Mall would be. 18 "The Court: Right. 19 "And then there's another one where saying 20 where the east entrance is. 21 "The Court: All right. 22 "The Witness: There's two of them. 23 "The Court: And do I understand your evidence 24 to be that you were in between those two 25 entrances? Friday, February 6th, 2009 52 M. Robinson -- cr-ex. (Boggs) 1 "The Witness: No, I was at the front, at the 2 front where Dragon City Mall is. 3 "You were in there? 4 "Yeah, I was right in there. 5 "The Court: You were through two sets of 6 doors? 7 "The Witness: Yes, two sets of of doors. 8 Yeah, I was in between two sets." 9 10 And at the top of 32: 11 12 "The Court: And so are you making the 13 observations through those two sets of doors, 14 is that what you are saying? 15 "The Witness: No, I was making observations 16 through the front door. 17 "The Court: Through? 18 "The Witness: Yeah, the front doors, the 19 opposite - what you're saying is the two sets 20 of doors was behind me, so there was one sort 21 of doors behind me. 22 "The Court: Right. 23 "The Witness: And there was another set of 24 doors in front of me. Right at the front. 25 "The Court: All right. Friday, February 6th, 2009 53 M. Robinson -- cr-ex. (Boggs) 1 "The Witness: So I was right between the front 2 doors looking through the window outside. 3 "So you were between two sets of doors - 4 "The Witness: Yeah." 5 Now, it's absolutely clear there that you're 6 between the east entrance front doors and the inner doors 7 that mark the boundaries of that foyer, right? 8 A. I'm in between this door and this door and 9 this is the foyer going inside the mall, right, so, yeah, I'm 10 in between. I'm in between. I would say that's in between. 11 Q. You're not outside like you said -- 12 A. No, I'm in between, though. 13 Q. All right. So you have got a set of closed 14 doors between you and the two guys that were arguing, right? 15 A. Okay. Yeah. 16 Q. And if you had a set of closed doors from 17 that distance, you couldn't hear them arguing? 18 A. I couldn't hear them arguing, no. 19 Q. Right. And even if you could hear them, 20 you wouldn't know what they were saying, right? 21 A. Pretty much, no. 22 Q. So you didn't know they were arguing at 23 all. 24 A. I knew they were arguing because there was 25 -- because -- because the -- the look on both of their faces Friday, February 6th, 2009 54 M. Robinson -- cr-ex. (Boggs) 1 weren't good. Before I went inside -- before I went inside 2 the mall when I was out there with them, everybody looked 3 good, everybody looked fine, everybody looked peachy. When I 4 was -- when I was looking at them, the older guy, he looked 5 upset. The smaller guy, the shorter guy, the accused, he 6 looked upset as well. They both looked upset. This is what 7 I'm observing, they both looked upset. They both looked like 8 they're -- like they were upset. I can't say anything 9 further. They just looked like they're upset. The look on 10 both of their faces, they were totally changed from the time 11 I went out there smoking a cigarette and drinking with them, 12 right. The look changed. So they both looked upset. Both 13 of them looked upset. No one else looked upset. I wasn't 14 upset. No one else looked upset, but those two individuals 15 looked upset pretty much. 16 Q. Fair enough. All right. Now, initially 17 before everybody gets up, you're all packed down close 18 together at that corner? 19 A. That's correct. And no one looked upset. 20 Everybody looked fine. 21 Q. All right. Now, you get up and leave, go 22 inside the foyer, and they get up and they circle, correct? 23 A. Correct. 24 Q. All right. Now, once they get up, they 25 start off approximately parallel to the corner of that Friday, February 6th, 2009 55 M. Robinson -- cr-ex. (Boggs) 1 building; is that right? 2 A. I don't know where they start off. They 3 were just down -- they were just down here. They were just 4 circling down. 5 Q. That's right. Now you're pointing partway 6 down the diagram -- 7 A. Yeah. 8 Q. To about the second door here -- 9 A. Yeah, they were going down. 10 THE COURT: Mr. Robinson, one at a time. So 11 let Mr. Boggs finish. 12 THE WITNESS: Okay. 13 THE COURT: And, Mr. Boggs, you let Mr. 14 Robinson finish. 15 16 17 BY ·MR. BOGGSÈ: 18 Q. You were pointing moving your finger around 19 the area between that square shaded area and these letters 20 "CCTV", correct? 21 A. Yes. 22 Q. That's where you were identifying them 23 standing and moving about? 24 A. Yes. 25 Q. All right. Now, earlier you had pointed Friday, February 6th, 2009 56 M. Robinson -- cr-ex. (Boggs) 1 out that the corner of the building had obstructed your view 2 from where you were standing inside the foyer. 3 A. Yeah. 4 Q. All right. Now, you can see that not only 5 does the corner of the building, but this entire wall here 6 obstructs your view if you're standing here, where you said 7 you were standing, and these fellows are roaming around 8 between the CCTV -- 9 A. Yeah, they're going -- they're roaming 10 around. They're going down, up, down, up. They're just 11 roaming around. This is where -- this is where we all were 12 drinking, so they're going from we were drinking down. Maybe 13 not as far down, but they're going up, down, up, down. 14 They're just roaming around. 15 Q. All right. 16 A. They're just roaming around. 17 Q. My question, though, is this. 18 A. What's your question. 19 Q. You can see that when they're down here 20 next to the CCTV and the square, your obstruction is -- your 21 view from where you say you were standing inside the foyer is 22 obstructed not only by the doors, but also this wall of the 23 building, the north wall on the southern part of the 24 building. That wall obstructs your view, correct? 25 A. No, that's not correct. This wall does not Friday, February 6th, 2009 57 M. Robinson -- cr-ex. (Boggs) 1 obstruct my -- this wall does not obstruct my view. I could 2 still see from this corner to that corner. I could still see 3 from that corner to that corner. That wall is like a ghost 4 wall. That wall does not obstruct my view. 5 Q. All right. It's a ghost wall, so you're 6 saying that it's glass and you can see through it? 7 A. I'm not saying it's glass and I can see 8 through it, I'm just pretty much saying it doesn't obstruct 9 my view at all. 10 Q. But earlier -- 11 A. I could still see from standing either 12 inside or outside these doors, I could still see the street. 13 I could still see the street where we were all drinking. 14 Further down, when you get further down, I cannot see, but 15 from here to here I can see. 16 Q. All right. Now, what you just pointed to 17 when you said that you cannot see further down was the area 18 between the square shaded area and the CCTV -- 19 A. I don't know what "CCTV" is, first of all. 20 Q. That's the area that you pointed to when 21 you said these fellows were roaming between that area. All 22 right. You just now said you couldn't see that. 23 A. Just now said I can't see the CCTV or I 24 can't? 25 Q. Yes. Friday, February 6th, 2009 58 M. Robinson -- cr-ex. (Boggs) 1 A. I could just see from here to here 2 (indicating). 3 Q. That's right. 4 THE COURT: So that you know, Mr. Robinson, 5 "CCTV" on the map is representing a closed 6 circuit television. 7 THE WITNESS: Oh, okay. 8 THE COURT: That's what that is. 9 THE WITNESS: Okay. 10 ·MR. BOGGSÈ: That's correct. 11 12 BY ·MR. BOGGSÈ: 13 Q. Now, is it possible that you were getting 14 some view of this through the corner of that wall if that 15 wall was glass? 16 A. No. 17 Q. It is not possible? 18 A. No. 19 Q. You're not saying that you were looking 20 through that piece of glass. 21 A. No, I'm not saying that at all. 22 Q. All right. You're saying that you're -- 23 A. I'm saying -- what I'm saying is this 24 doesn't obstruct my view from seeing from the corner to the 25 sidewalk. Friday, February 6th, 2009 59 M. Robinson -- cr-ex. (Boggs) 1 Q. All right. Now, when you were standing 2 inside of the foyer, at some point when you were standing 3 inside the foyer, Pops goes down, correct? 4 A. Yeah. 5 Q. He's down on the ground, right? 6 A. Okay. Yeah. 7 Q. Now, you earlier said that you could not 8 see the area immediately north of the CCTV, correct? 9 A. No, that's not correct. I always could 10 have seen from here to here (indicating). 11 Q. That's right. But immediately north of the 12 CCTV, this orange dot here. 13 A. That's going down further. Yeah, I can't 14 see down there further. That's too far down. I can't see 15 that far down. 16 Q. All right. Now, I put it to you -- just to 17 be clear, are you saying that you saw Pops go down and hit 18 the ground? 19 A. Yes. 20 Q. All right. Now, I put it to you that when 21 he falls, he falls somewhere beyond that television camera. 22 A. Beyond this you're saying, the CTT [sic]? 23 Q. Yeah. 24 A. That's probably -- I see -- I seen him 25 fall. I don't think he fell beyond the CTT [sic], the Friday, February 6th, 2009 60 M. Robinson -- cr-ex. (Boggs) 1 whatever the camera you want to call it. 2 Q. Okay. The reason we know that is that when 3 he falls, he's outside of the range. Do you want to see 4 that? 5 A. I came outside and I seen him on the 6 ground, yeah, and he wasn't -- he wasn't -- he wasn't beyond 7 the CCTV. He was nearby. He was here. He wasn't beyond the 8 CCTV range. 9 Q. I'm going to suggest to you that there's no 10 possible way that you could have seen that man fall or what 11 happened to him to make him fall because you were inside the 12 foyer and you've admitted that your view was obstructed. 13 A. No. 14 Q. I'm going to suggest to you that after a 15 while you did come out, and we see you come out of the foyer, 16 you looked down at the sidewalk and you saw Pops lying on the 17 ground. That's right? 18 A. That's what I remember. 19 Q. And it was after you saw him lying on the 20 ground that you figured out what had happened? 21 A. No. No. That's not correct. That's not 22 correct at all. 23 Q. Are you telling us that you somehow were 24 able to bend your vision around that wall? 25 A. I never had -- I didn't have to bend my Friday, February 6th, 2009 61 M. Robinson -- cr-ex. (Boggs) 1 vision around the wall. Like I said, I could clear -- I 2 could clearly see from that corner to that -- to that -- to 3 that end of the street. There's no -- there's no vision to 4 bend. There's no -- there's no vision to not see or not 5 bend. I could clearly see. I have a clear sight of where I 6 am to where -- to where the wall -- to where the side wall 7 is. Further down from the CTT [sic] I cannot see, right, 8 that's further down. But from where I'm standing from that 9 corner, from out here -- from here to here I could see 10 clearly. There's no -- there's no blurred vision. 11 Q. Mr. Robinson, did you notice when you were 12 watching that video that you can't see any of the front doors 13 of the east entrance, any part of them? 14 A. Can't see -- can't see any of these doors 15 you're saying? 16 Q. That's right. 17 A. Yeah. Yeah, of course I notice I can't see 18 the doors. But if I'm standing in this corner, I could -- I 19 could -- I could see clearly. Like I don't have -- I don't 20 have -- on the videotape you don't have to see the doors. 21 The doors are in here, right. The doors are going in like 22 where this wall is where you're saying that -- the glass door 23 you're saying is blocking my vision supposedly, that's -- 24 that's where you can see. You cannot see the doors. From 25 here to here you cannot see the doors. But from standing in Friday, February 6th, 2009 62 M. Robinson -- cr-ex. (Boggs) 1 this corner you can see on an angle. You can see perfectly 2 the corner on the angle. You can see that. So anybody 3 standing here could see the street clearly. Anybody standing 4 in this corner could not see because then this wall would 5 come into effect here. But from this corner you could see 6 clearly. 7 Q. You said you could see the street clearly? 8 A. You could see the street, sidewalk, the 9 whatever. The street is part of -- this is the sidewalk, 10 this is the street, right, so you can see clearly what's 11 going on here. There's no vision being blocked. So, yes, 12 you can see the street and, yes, you can see the sidewalk, 13 from this corner though. From this corner. You can't really 14 come out of this corner too much because then this wall is 15 going to take effect. If you get closer, this wall is going 16 to take effect, so the wall will now be part of the vision 17 where you can't see the street or the wall. But from here 18 you're okay. You're fine here (indicating). 19 Q. Well -- 20 A. In between the foyer on the front you can 21 see okay and even outside you can still see. As long as -- 22 as long as you're in this corner looking down, and that's 23 exactly what I was doing, I was looking down. 24 Q. You now agree that you were on the inside 25 of the foyer. Friday, February 6th, 2009 63 M. Robinson -- cr-ex. (Boggs) 1 A. I didn't agree to that. I just said if 2 someone was to be inside or if someone was to on the outside 3 like I was, you could see clearly. It doesn't matter if 4 you're on the inside or it doesn't matter if you're on the 5 outside, you can still see the street corner and the curb 6 where we all were drinking. You could still see that 7 clearly. Anybody could see it clearly. I'm tall too, so 8 that's an advantage I have too that I'm tall, so I can even 9 see it more clear. 10 Q. Mr. Robinson, is it fair to say that your 11 memory from that period of time is a little faded? 12 A. No. 13 Q. It was two years ago. 14 A. Yeah, it wasn't -- it wasn't two years ago. 15 It's always been the way it was. It's just like, you know, I 16 remember certain -- I remember certain parts of an incident 17 and I don't remember certain parts. 18 Q. Yeah. Is it fair to say that with regard 19 to what happened to Pops that night-- 20 A. Yes. 21 Q. --you didn't really see much? 22 A. No, that's not -- that's not -- that's not 23 fair, no. That's not fair to say. 24 Q. All right. So when you told that to the 25 police, "I didn't see much", you were lying? Friday, February 6th, 2009 64 M. Robinson -- cr-ex. (Boggs) 1 A. No, I wasn't lying. I've seen what I've 2 seen and I've seen certain parts and I didn't see certain 3 parts. Nothing switched. 4 Q. All right. I'm going to direct your 5 attention to page 41 of the transcript of your interview with 6 the police on June 13th of 2007. 7 THE COURT: I'm sorry, what page? 8 ·MR. BOGGSÈ: Page 41. 9 10 BY ·MR. BOGGSÈ: 11 Q. And here you're quoting yourself talking to 12 the police on the night of the incident and you say -- they 13 are talking -- they're asking you about an officer whether or 14 not he was wearing a uniform. This is Officer Gibson. 15 He says: "Wearing a uniform or? 16 And your answer is: "Yeah, he was wearing a 17 uniform and I -- I didn't like his attitude, 18 'cause it was like, "Well did you see 19 anything?" I'm like, "No, I didn't see much 20 man." And he said to me, "Oh, you sure you 21 were right there when it - were you right there 22 when." And I said like, "I'm not gonna lie, I 23 was here." 24 Now, there when you're talking to the police, 25 you're saying "I didn't see much". That's the first thing Friday, February 6th, 2009 65 M. Robinson -- cr-ex. (Boggs) 1 you say when an officer asks you. 2 A. Yeah. 3 Q. And you quote that to the police on June 4 13th of 2007, right? 5 A. Right. 6 Q. And that is when they're interviewing you 7 at the detention centre, right? 8 A. No, that's I think -- that's when they 9 were interview -- yeah, when he was interviewing me at the 10 police -- at the detention centre and when I was actually 11 there on the scene. 12 Q. Right. You're quoting yourself at the 13 scene. 14 A. Yeah. 15 Q. And what you said was that you didn't see 16 much, right? 17 A. Yeah. 18 Q. And that was the truth. 19 A. Yeah, I told him a wrong name too. They 20 asked me before they asked me -- they asked me my name and I 21 told them a wrong name and I said I didn't want to get 22 involved. And he said, "What happened?" And I said, "I 23 didn't really see much." I was scared. I was lying, 24 basically. I was saying I didn't see much, I didn't see 25 anything really and I don't want to be involved and I gave Friday, February 6th, 2009 66 M. Robinson -- cr-ex. (Boggs) 1 the wrong name. 2 Q. That's not the only time you said it, 3 right? 4 A. No. 5 Q. Because on page 12 of the same transcript, 6 June 13, Detective Gibson asks you: 7 "Okay. Okay. Can you go through that again 8 and tell me - from start to finish ---" 9 And you say: "--- Like you know - like I said 10 to the officer I didn't really see much." 11 A. Yeah, that's -- that was my story and then 12 when the officer said somebody died, yeah, I switched. I 13 said, yeah, I'll be involved. I'll go to court, yup. That's 14 what I said before, yeah. 15 Q. And I'm going to suggest to you that 16 although you didn't see much, what you might have seen you're 17 not sure of because you were high? 18 A. No, I wasn't high at the time at all. I 19 was high during the day. At the incident or while we were 20 drinking I wasn't high. I was waiting, that's what I was 21 doing there. I wasn't -- at the time the incident was going 22 on or previously before, that's what I was wait -- I was 23 waiting for my drugs to get high, so I wasn't high. I was 24 waiting that's why I was on my phone and that's one of the 25 reasons why I was in and out of the mall, because I was Friday, February 6th, 2009 67 M. Robinson -- cr-ex. (Boggs) 1 supposed to meet my dealer inside the foyer and he never 2 showed. He never showed up. I think maybe he showed up and 3 maybe that's when he seen the incident going on, but I wasn't 4 high. I wasn't high at all. 5 Q. All right. I'm going to direct your 6 attention -- 7 A. I wasn't high at all. I wish. 8 Q. I'm sorry? 9 A. I wasn't high at all. 10 Q. Okay. To page 14 of that same interview. 11 A. Yeah. 12 Q. And there... well, to be complete on page 13 13 at the bottom, Detective Gibson asks: 14 "Do you know what they were drinking?" 15 And your answer is: "Yeah, I do first they 16 were drinking um I think it was some ah I know 17 they were drinking whisky afterwards. I mean, 18 um Listerine afterwards, but before they were 19 either drinking Canadian club or something - 20 something I don't think it was sherry. I don't 21 really remember 'cause I was high. I - I was - 22 I just smoked a joint outside, whatever. 23 "Gibson: Marihuana? 24 "Robinson: Yeah. 25 "Gibson: Okay." Friday, February 6th, 2009 68 M. Robinson -- cr-ex. (Boggs) 1 So you were high? 2 A. During the day I was high, yes, that's 3 correct, I was high. 4 Q. You were high at the time. 5 A. No, not at the time. 6 Q. All right. Well, you tried this at the 7 preliminary hearing too and at page 18 of the preliminary 8 hearing -- 9 THE COURT: Mr. Boggs, before we get into the 10 preliminary hearing, we'll take our afternoon 11 break. So now, Mr. Robinson, you are in the 12 middle of being cross-examined. You must not 13 discuss your evidence with anyone over the 14 break; do you understand that sir? 15 THE WITNESS: I understand. 16 THE COURT: Okay. Fifteen minutes and then we 17 will continue. 18 THE REGISTRAR: Court is in recess for 15 19 minutes, please clear the courtroom. 20 21 R E C E S S (3:40 p.m.) 22 23 U P O N R E S U M I N G (4:00 p.m.) 24 25 MARVIN ROBINSON: Resumes witness stand. Friday, February 6th, 2009 69 M. Robinson -- cr-ex. (Boggs) 1 2 CROSS-EXAMINATION BY ·MR. BOGGSÈ (CONTINUED): 3 Q. Now, Mr. Robinson, just before we broke I 4 had directed your attention to a quote where you had said 5 "because I was high I just smoked a joint whatever". Now, at 6 the preliminary hearing Mr. Shulman, who was representing my 7 client there, had asked you -- had brought your attention to 8 the same quote and he said those are your exact words. 9 THE COURT: Where are you in the preliminary? 10 ·MR. BOGGSÈ: Page 20. 11 12 BY ·MR. BOGGSÈ: 13 Q. This was just after denying that you were 14 high. And the court intervenes again. 15 The court says: "The question is, do you 16 recall making that statement to Detective 17 Gibson, yes or no?" 18 And the witness, you, say: "Yes." 19 "The Court: All right. Was it true? 20 "The Witness: Pardon me? 21 "The Court: Was it true? 22 "The Witness: Was it true? Yes. 23 "The Court: Yes. 24 "The Witness: At the time, yes. 25 "The Court: At the time it was true. Friday, February 6th, 2009 70 M. Robinson -- cr-ex. (Boggs) 1 "The Witness: Yes. 2 "The Court: Okay there you go. 3 "Mr. Shulman: Thank you, Your Honour. 4 QUESTION: But now you're testifying it's not 5 true, you were not -" 6 And your answer interrupts and you say: "No, 7 I'm not testifying it's not true. I'm saying 8 it was true. 9 "QUESTION: So you were impaired by marijuana - 10 "ANSWER: I was high - 11 "QUESTION: - at the time they were drinking. 12 "ANSWER: I was high and I was drinking, yes." 13 14 And over the page 21 at the top: 15 16 "QUESTION: Again, I'll repeat. You were 17 impaired by marijuana at the time you were 18 drinking --" 19 THE COURT: At the time -- 20 21 BY ·MR. BOGGSÈ: 22 Q. "QUESTION: ...at the time they were 23 drinking? 24 "ANSWER: Yes." 25 Now, do you remember being asked those Friday, February 6th, 2009 71 M. Robinson -- cr-ex. (Boggs) 1 questions? 2 A. Yes. 3 Q. And you remember giving those answers? 4 A. Yes. 5 Q. And that was the truth, right? 6 A. Yes. 7 Q. So at the time those gentlemen were 8 drinking, you had just smoked a joint and you were high. 9 A. Yes. 10 Q. So you lied here today when you said you 11 weren't high. 12 A. I wasn't high -- when I was -- when I -- 13 when I was drinking with those guys, I was high, but when the 14 incident, when I seen the incident, I wasn't high anymore. 15 So I wasn't -- I wasn't high or impaired or whatever you want 16 to call it when I seen the incident. 17 Q. So when you were sitting down -- 18 A. The incident -- when I -- when I was 19 sitting down on the curb drinking, the incident didn't occur 20 yet and I mean I was high. But when the incident occurred, I 21 wasn't high anymore, right? I smoked one joint, I wasn't 22 high anymore. So I wasn't impaired or I wasn't drunk like 23 how you are saying I was. Two different situations, right? 24 When I was sitting down and I was drinking with those dudes, 25 yeah, I was high. When the incident happened which was -- Friday, February 6th, 2009 72 M. Robinson -- cr-ex. (Boggs) 1 which was -- it was a little -- it was a little time gap in 2 between, I wasn't high anymore. 3 Q. A little time gap? 4 A. Yeah, maybe 15, 20 minutes, maybe longer. 5 That's what I mean when I say time gap, maybe 15, 20 minutes. 6 Q. Excuse me for just a minute. All right. 7 I'm going to direct your attention to page 70 of the 8 interview you gave to the police on June 13th at the 9 detention centre. You tell detective Gibson: 10 "Honestly I'm not - I'm not giving no 11 statement - I just - I just basically said 12 "that's what I remember seeing man". 13 "Gibson: Mm-hmm. 14 "Robinson: I was. Half of it might be fudgey 15 right now, because, but the officer look at my 16 eyes, I go "I'm high right now man" and that's 17 what I'm -- that's what I'm telling you what it 18 is and I don't want to do this right here." 19 So not only were you high when you were sitting 20 down drinking -- or when you were sitting down with the 21 fellows that were drinking, but you were also high right 22 after the incident when the officer starts asking you about 23 it, right? 24 A. That was way after. I wasn't high anymore. 25 The officer didn't ask me right after -- right after what Friday, February 6th, 2009 73 M. Robinson -- cr-ex. (Boggs) 1 happened. The officer came on the scene a long time after -- 2 Long after -- long after the fact we were drinking. We 3 weren't drinking anymore, everybody left, so that was way 4 long after. The officer asked me what was going on with the 5 situation, that was way after. 6 Q. Right. And you're telling him then that it 7 might be all fudgey to you because you're high right when 8 you're talking to him. 9 A. Yeah, I did. I got high. The incident was 10 over, yeah, I got high. Yeah. 11 THE COURT: Just one moment. 12 ·MS. KLEINHENZÈ: I think the transcript says 13 "half of it might be fudgey". Perhaps if we 14 could use the witness' own words parroted back 15 to him each time. 16 THE COURT: Thank you, Ms. Kleinhenz. Mr. 17 Boggs, let's try to do that. 18 19 BY ·MR. BOGGSÈ: 20 Q. "Half of it might be fudgey right now, 21 because, but look at my eyes, I go "I'm high 22 right now man". 23 That's what you said, right? 24 A. That's what I said. 25 Q. And that was the truth? Friday, February 6th, 2009 74 M. Robinson -- cr-ex. (Boggs) 1 A. That's what I said. 2 Q. Was it the truth or were you lying? 3 A. That was -- that was the truth, yeah. I 4 was high right then and there, but that was long after the 5 fact that the incident was already over. When I was being 6 questioned by the officer, the incident was over... it was 7 over. 8 Q. In point of fact you were high throughout 9 that day. 10 A. I was high different -- I wasn't high -- I 11 was high different -- different periods of the day. 12 Q. Were you high throughout the day? 13 A. Throughout the day different periods of the 14 day. Not throughout the day. Just different periods of the 15 day I was high, not throughout the day. I didn't just woke 16 up and I was high, like you know what I mean? There was a 17 good part of the day I wasn't high and there was a good part 18 of the day -- some parts of the day I was high. 19 Q. I'm going to direct your attention -- 20 A. I don't stay high long. I stay high maybe 21 for about five, ten minutes. Yeah, pretty much. 22 Q. On page 18 of the preliminary inquiry 23 transcript you say: 24 "I was high there throughout the day. I was 25 high throughout the day. I wasn't high on that Friday, February 6th, 2009 75 M. Robinson -- cr-ex. (Boggs) 1 occasion. I was high throughout the day the 2 whole day. 3 "QUESTION: What do you mean by - that you were 4 high? 5 "ANSWER: What do you mean? I was high. I was 6 smoking marijuana. I was high. 7 "QUESTION: You were under the influence of 8 marijuana? 9 "ANSWER: Pardon me. 10 "QUESTION: You were under the influence of 11 marijuana? 12 "ANSWER: Not at the time, throughout the day I 13 was, yeah. Throughout the day. At the 14 incident, I was perfectly fine." 15 A. That's correct. When the officer was 16 asking me what was going on, that wasn't the incident. I say 17 that in my own words that wasn't the incident, the incident 18 was over, so I was high. Previously before that, no. I 19 wasn't high then in the incident, I was perfectly, perfectly 20 fine. 21 Q. So you were high throughout that day. 22 A. Yes. 23 Q. And that evening. 24 A. Yes. 25 Q. But at that precise moment -- Friday, February 6th, 2009 76 M. Robinson -- cr-ex. (Boggs) 1 A. It wasn't a precise moment. You're making 2 it sound like it was a precise moment. It wasn't a precise 3 moment at all. 4 Q. Pops had collapsed at several different 5 moments, did he? 6 A. That one moment, no, I wasn't high. 7 Q. So at that one moment throughout that whole 8 day, you just -- 9 A. It wasn't a one moment. There was lots of 10 periods during the day, like I said, I wasn't high. Not just 11 like that one moment I wasn't high. Different periods of the 12 day, like I said, I was not high. But you're right, at that 13 exact point in time when Pops when I see him fell down 14 because he got punched out, I was not high. Afterwards when 15 the cops came and the ambulance came and I was questioned by 16 the officers, yeah, I was high. I was scared and I was high 17 and I didn't want to -- I didn't want to comment about what 18 I've seen at all. 19 Q. It's fair to say that you were so high at 20 the time you didn't know what you had seen? 21 A. Pardon me? 22 Q. It's fair to say that you were so high when 23 you were talking to the officers that you didn't know what 24 you had seen? 25 A. No, that's not fair to say that at all. Friday, February 6th, 2009 77 M. Robinson -- cr-ex. (Boggs) 1 Q. Is it also fair to say that you don't have 2 trouble lying to the police? 3 A. That's fair to say I don't have trouble 4 lying to the police at certain times when I -- when I'm -- 5 when I'm in danger, yeah, or when I'm scared of certain 6 situations, that's correct. 7 Q. It's fair to say that you've done it many 8 times? 9 A. I wouldn't say I've done it many times. I 10 did it a few times. 11 Q. Is it fair to say that you do it because 12 you think you can get away with it? 13 A. No, that's not fair to say. 14 Q. You lie to the police because you think 15 you're going to get caught lying? 16 A. I lie to the police because I have 17 warrants. I usually have a warrant. That's the only time I 18 lie to them. 19 Q. All right. And when you lie to the police, 20 you might expect that you get away with it, right? 21 A. That's the obvious. 22 Q. That's the obvious, right? 23 A. That's right. 24 Q. Is it fair to say that you're good at 25 lying? Friday, February 6th, 2009 78 M. Robinson -- cr-ex. (Boggs) 1 A. No. I wouldn't say that. 2 Q. You lie -- 3 A. I try to lie. It doesn't really work out. 4 I always get caught in my lies. 5 Q. You do? 6 A. Pretty much. 7 Q. Now, on May 31st, the night, whether it was 8 the 30th at night or the 31st after midnight when you were 9 talking to the police, you lied to them twice at least that 10 night, right? 11 A. I lied to them once. I told them my wrong 12 name. 13 Q. You told them the wrong name? 14 A. Yeah. 15 Q. You also told them you didn't see much. 16 That was the truth, right? 17 A. What was the truth, that I didn't see much? 18 Q. Right. 19 A. Yeah. 20 Q. That's right. So you only lied once. 21 A. Yeah, I told them a wrong name. 22 Q. Is it fair to say that you told them what 23 you thought they wanted to hear? 24 A. No. 25 Q. Because you wanted to go? Friday, February 6th, 2009 79 M. Robinson -- cr-ex. (Boggs) 1 A. I told them what I seen. I didn't tell 2 them what I thought they wanted to hear. I told them what I 3 seen. 4 Q. Now, when you lied about your name, you 5 told them your name was Terry Mills? 6 A. Yeah. That I'm not positive, but I think 7 that's the name I told them I said, yeah. 8 Q. But your real name is Marvin Robinson? 9 A. That's correct. 10 Q. You use a bunch of other names too? 11 A. No. Usually it's Terry Mills or Mike 12 Mills. Yeah, usually it's those. 13 Q. Terry Mills or Mike Mills? 14 A. Or Mike Mills. 15 Q. You use that one too? 16 A. I didn't use that one, but I've used -- 17 I've used that one in the past. 18 Q. You also go by Trevor Mills? 19 A. Yes. 20 Q. There's other names you use as well? 21 A. Pardon me? 22 Q. There's other names you use as well? 23 A. Is that another name I use as well? 24 Q. No, there are other names. 25 A. No, those are usually the names I use. Friday, February 6th, 2009 80 M. Robinson -- cr-ex. (Boggs) 1 Q. Usually. 2 A. Yeah. 3 Q. But there are times when you use different 4 ones? 5 A. No. 6 Q. So that's not usually, that's always. 7 A. That's always, yeah. That's always I use 8 those names, yes, that's correct. 9 Q. And you try one or another, whichever you 10 think will get you -- 11 A. I don't try one or the other. I just use 12 one and if that's the one that comes to me at the time when 13 I'm in the situation, that's the one I use. I don't try one 14 or the other. 15 Q. You are whoever pops in your head on that 16 particular day? 17 A. Pardon me? 18 Q. Your name is whatever you decide it is at 19 that particular day? 20 A. At that particular time. 21 Q. And you give those names regardless of the 22 fact? 23 A. Regardless of what fact? 24 Q. The fact that your name is Marvin Robinson. 25 A. Yeah. Okay. Yeah, you're right. That's Friday, February 6th, 2009 81 M. Robinson -- cr-ex. (Boggs) 1 correct. 2 Q. Now, you during the taped interview that 3 you gave on June 13th of 2007, when you were in jail, you had 4 a discussion with a Constable Bradley and a Constable Gibson, 5 correct? 6 A. Correct. 7 Q. Now, on page 9 of the transcript of that 8 interview, they're talking about the name and the birth date 9 that you gave at the time of the incident. 10 A. Mm-hmm. 11 Q. And Gibson asks: 12 "And you're birth date you gave was - do you 13 know what birth date you gave?" 14 And your answer is: "1983 June somethin'." 15 And Gibson replies: "1973 June 15th?" 16 THE COURT: "1978". 17 ·MR. BOGGSÈ: "1978", sorry. My eyes are getting 18 worse. 19 20 BY ·MR. BOGGSÈ: 21 Q. And your answer is: 22 "Yeah, my -- that's my real birthday still 23 actually." 24 And Gibson says something unintelligible. 25 "Yeah, June -- June the 15th, 1977 is my real Friday, February 6th, 2009 82 M. Robinson -- cr-ex. (Boggs) 1 birthday right there." 2 So when you got June 15th and it was 1978, you 3 were surprised. 4 A. No, I've said -- I've said from the get-go 5 June '77, so I don't know how the June '78 came into play. I 6 said -- I told them it was June 15th, 1977. 7 Q. What's going on here is you're asked what 8 birth date you gave at the time, right, and your answer is, 9 "1983 June somethin'". That's what you said then. That's 10 what you thought you said, right? 11 A. That's what he asked me. I said June the 12 15th, 1977. 13 Q. You're saying that the transcript is wrong? 14 A. Yes. I'm saying I've always said my 15 birthday is June the 15th, 1977. 16 Q. So this whole conversation is all wrong? 17 A. I didn't say the whole conversation is all 18 wrong. I just said -- well, I'm telling you what I've said 19 and I said June the 15th, 1977. I didn't lie about my birth 20 date. I always kept it to June the 15th, 1977. That's the 21 correct day. That's my correct birth date. 22 Q. You didn't tell the officer at the time 23 that your birth date was June 15th, 1978? 24 A. I don't recall telling him that. I do 25 recall telling him my birthday is June the 15th, 1977. Friday, February 6th, 2009 83 M. Robinson -- cr-ex. (Boggs) 1 Q. You don't lie about your birth date? 2 A. I don't lie about my birthday, no. I just 3 usually lie about my -- my -- my name. 4 Q. So this is all wrong? 5 A. Pardon me? What are you asking that it's 6 all wrong? 7 Q. That you said you gave "1983 June 8 somethin'"? 9 A. Yeah, that's -- that's -- that's what I -- 10 that's to my knowledge that's -- that's wrong. I usually say 11 June the 15th, 1977. That's my original birthday. 12 Q. All right. So whoever was transcribing 13 that made that up? 14 A. I don't know. I wouldn't say they made it 15 up. Maybe that's what he -- maybe he heard me say 1977 and 16 mistake me and put it on the transcript as 1978, but I said 17 1977. 18 Q. I'm not talking about '78 now, I'm talking 19 about 1983. 20 A. Okay, I'm talking about 1977, that's my 21 birthday, June the 15th. 22 Q. Do you understand that he asked you what 23 date you thought you gave them? That was the question? 24 A. Yeah. Yeah. Maybe I was confused but 25 that's what -- I don't lie about my birthday. That's why Friday, February 6th, 2009 84 M. Robinson -- cr-ex. (Boggs) 1 usually I get away with it, because my birthday is the same 2 and everything is the same usually, but the name -- the name 3 -- the fake name usually messes the situation up. 4 Q. All right. So now you've just said that 5 that's why usually you get away with it? 6 A. Yeah. 7 Q. So usually you are successful when you're 8 lying about it? 9 A. Sometimes. Sometimes I'm not. 10 Sometimes -- sometimes I don't get away with it. 11 Q. You said a few minutes ago here today that 12 you don't usually get away with it. 13 A. I don't usually get away with it, but 14 sometimes I do. Don't usually meaning that I don't get away 15 with it; sometimes I do though. I get -- I get -- I get 16 harassed every day. I get -- I get -- I get bothered by the 17 police every day. Twice a day, sometimes three times a day. 18 Q. All right. Now, at the time that you were 19 to testify at the preliminary hearing in February of 2008, 20 you got yourself arrested, correct? 21 A. I got myself arrested? 22 Q. Yes. 23 A. I didn't get myself arrested, I was -- I 24 had warrants. 25 Q. You got arrested in February of 2008? Friday, February 6th, 2009 85 M. Robinson -- cr-ex. (Boggs) 1 A. Somewhere around there, yeah. 2 Q. And when you were arrested, you gave the 3 wrong birth date and the wrong name and the wrong address? 4 A. I don't recall giving the wrong birth date. 5 I recall giving the wrong name. 6 Q. Okay. I'm going to read a synopsis for a 7 guilty plea to you on a charge of obstruct peace officer. 8 The date and time is Tuesday, February 5th, 2008 at 9 approximately 6 p.m. Location 250 Queen Street East, No. 1, 10 and there's a victim listed. 11 On Tuesday, February 5th at 5:40 p.m., 2008, 12 members of the Primary Response Unit were 13 responding to community complaints about 14 constant disturbances and drug activity at 250 15 Queen Street East, Unit 1. They arrived on the 16 scene and investigated the accused and a second 17 party who were in the apartment. The accused 18 identified himself verbally as Trevor Mills 19 with a date of birth of June 15th, 1978, and 20 stated that he lived in Montreal at 78 Red Head 21 Drive. Officers continued with the 22 investigation at which point the accused stated 23 that his name was Michael Mills with a date of 24 birth of June 15th, 1977. Officers persisted 25 with the accused. The accused then changed his Friday, February 6th, 2009 86 M. Robinson -- cr-ex. (Boggs) 1 name to Mike Robinson. Further investigation 2 then revealed that the accused was actually 3 Marvin Robinson with a date of birth of June 4 15th, 1977. At 6 p.m. the accused was placed 5 under arrest, transported to 51 Division and 6 held pending a show cause hearing. 7 Now, all of that is true, isn't it? 8 A. No, I was high at that time. I could tell 9 you -- I could tell you right then and there, I was high. 10 When I got arrested that night or that day, I was high. I 11 can't remember what I told them. 12 Q. You did the thing -- you are alleged 13 to have done the things that you say you do from time to 14 time, like give them the wrong names. You're alleged to give 15 them the names that you say that you do use, Trevor Mills and 16 Mike Robinson and Michael Mills, right? 17 A. Yeah. 18 Q. All things that you do. 19 A. It's all things that I do. 20 Q. And you also gave them the wrong birth 21 date, right? 22 A. Probably. 23 Q. Probably? 24 A. I'm not saying I remember fully. I was 25 high. Friday, February 6th, 2009 87 M. Robinson -- cr-ex. (Boggs) 1 Q. Because you're first -- 2 A. Do you realize the rest of the 3 statement where -- I was caught in a drug house. I was 4 totally high. I was totally high, so I don't remember what 5 they said or what I said to them. 6 Q. Well -- 7 A. I could tell you that much. I don't 8 remember what I said. I probably gave them a thousand birth 9 dates or a thousand names. I don't know, I was high. At 10 that time -- at that point in time in that situation, I was 11 fully high. And I wasn't high on marijuana either, I was 12 high on a different substance, so I don't know what I said. 13 Q. What was the different substance? 14 A. It was a different substance. It was a 15 different drug. It wasn't marijuana. 16 Q. Was it crack? 17 A. Yeah, it was. That time I was a heavy user 18 back then. Yeah, so that was the substance and I was using 19 at that time. 20 Q. You were a heavy user before that as well? 21 A. No. 22 Q. No? You weren't using crack prior to then? 23 A. No, I wasn't a heavy user before that, 24 prior to that. 25 Q. You had gone to rehab for crack, though, Friday, February 6th, 2009 88 M. Robinson -- cr-ex. (Boggs) 1 prior to that. 2 A. I went to rehab a lot of times. 3 Q. Because you used crack. 4 A. For crack, marijuana, alcohol. I went to 5 rehab for different reasons. 6 Q. It's fair to say that you go to rehab 7 because you're a heavy user? 8 A. I use period. I use period. Back then I 9 used period. 10 Q. You use -- 11 A. There were certain points of me being a 12 heavy user and there were certain points of me being not 13 using at all. 14 Q. You don't go to rehab unless you have a 15 problem with a drug, right? 16 A. That's correct. 17 Q. Right. So you had a problem with a drug 18 and you went to rehab. 19 A. That's correct. You do not have to be a 20 heavy user to go to rehab. 21 Q. And you just said that you would go to 22 rehab because you're a heavy user. 23 A. I didn't say that. I said I had a drug 24 problem, I went to rehab. 25 Q. You're changing your testimony-- Friday, February 6th, 2009 89 M. Robinson -- cr-ex. (Boggs) 1 A. No, I'm not. 2 Q. --within sentences. I heard you 3 incorrectly? 4 A. Yes, you did. 5 Q. Did everybody else hear you incorrectly? 6 A. (No response). 7 Q. Did everybody else hear you incorrectly? 8 A. I don't know. Why don't you ask everybody 9 else? I can only answer for myself. 10 Q. You don't have a problem lying sitting 11 right here today under oath either, do you? 12 A. If I -- what are you asking me if I don't 13 have a problem? 14 Q. You do not have a problem lying under oath 15 today. 16 A. I don't lie under oath, so, yeah. I don't 17 lie under oath. 18 THE COURT: Mr. Boggs, you're not going to 19 finish -- rather, are you going to finish with 20 Mr. Robinson today? 21 ·MS. LEVINÈ: No. 22 THE COURT: Okay. Well, then, let's break now 23 since in any event I guess even if you finish, 24 we would have re-examination. Is this a 25 convenient place to end your cross? Friday, February 6th, 2009 90 M. Robinson -- cr-ex. (Boggs) 1 ·MR. BOGGSÈ: Any place. It doesn't matter. 2 THE COURT: Then we will end it here. 3 ·MR. BOGGSÈ: I'm sorry? 4 THE COURT: Then we will end it here. Mr. 5 Robinson, you need to be back on Monday at ten 6 o'clock. Come a little bit before ten, but you 7 will be in that box at ten o'clock on Monday. 8 And, sir, you are in the middle of being 9 cross-examined. Don't discuss your evidence 10 with anybody over the weekend, anything about 11 this case with anyone, including, of course, 12 the Crown Attorney or the police or anybody 13 else; do you understand that? 14 THE WITNESS: I understand. 15 THE COURT: Okay. 16 ·MR. BOGGSÈ: Thank you. 17 THE COURT: Okay. Ten o'clock on Monday. 18 THE REGISTRAR: Court is adjourned until 19 February 9th at 10:00 a.m. Please clear the 20 courtroom. 21 22 23 -------------------- 24 25
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