Court of Appeal for Ontario

Date: 2022-05-03 Docket: C67282

Doherty, Harvison Young and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jabourou Abdoulkader Appellant

Counsel: Craig Zeeh, for the appellant Craig Harper, for the respondent

Heard: April 21, 2022

On appeal from the conviction entered on January 18, 2019 and the sentence imposed on February 22, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice, with reasons on the defence application at 2019 ONSC 202.

Reasons for Decision

[1] The appellant was convicted of robbery and attempted robbery along with related charges. He was sentenced to a term of nine years imprisonment.

[2] At trial, the appellant sought to exclude the evidence found in his residence and car, arguing that the information to obtain (ITO) contained misleading information which, if excised, rendered the warrant invalid. The trial judge agreed that some information needed to be excised, but concluded that the remaining evidence was sufficient to justify the warrant.

[3] The appellant raises two grounds on this appeal. First, he submits that, because the warrant should not have been granted at the outset, the evidence discovered as a result of its execution should have been excluded. Second, he argues that the trial judge erred in finding that the weapon brandished during the successful robbery was a real.

[4] For the following reasons, the appeal is dismissed.

(1) The Factual Background

[5] On October 16, 2017, at approximately 7:15 a.m., a masked man attempted to enter a TD Canada Trust bank in Mississauga while the manager was conducting her opening procedures. The man was unable to enter, as the manager had locked the doors. He was described as tall, with black skin, wearing a black ski mask, black gloves, a black hooded sweatshirt, green army jacket, and carrying a black bag. He fled in a white U-Haul van parked on a nearby street.

[6] Four days later, on October 20, 2017, shortly after 7:15 a.m., a masked man, matching the description of the attempted Mississauga robber, successfully entered a TD Canada Trust bank in Ajax. The bank employees were conducting opening procedures when the man followed them into the bank. He had a black bag and a handgun. He directed the employees into the vault, ordered them to open the primary safe, and “racked” the handgun. He emptied the contents of the primary safe into his black bag and left at 7:25 a.m. Surveillance videos showed him driving away in a white U-Haul van.

[7] It was acknowledged at trial and in this court that the same person committed both the Mississauga and Ajax offences.

[8] Having obtained a search warrant, the Durham Regional Police Service arrested the appellant and searched his house and car on November 1, 2017. They found a number of incriminating items, including a black bag similar to that carried by the robber and cash totalling roughly $222,558 in the appellant’s car and buried beside his house.

[9] The police also seized a cellphone the appellant was carrying at the time of his arrest and obtained a warrant to search it. According to the information extracted, the phone had been used to search sunrise and sunset times before the robberies and to access web pages about luxury cars for sale after the Ajax robbery.

[10] The appellant was charged with robbery with a restricted or prohibited firearm, attempted robbery, two counts of having his face masked with intent to commit an indictable offence, and three counts of forcible confinement. He was convicted on all counts.

(2) Was the search warrant valid?

[11] The appellant argues that, after the misleading information was excised from the ITO, it contained insufficient grounds to justify issuance of the warrant.

[12] In his affidavit, Detective Constable Jason Price with the Durham Police, indicated he had asked other local police services for suspects in similar robberies and shared surveillance photographs of the robber. Peel Police provided the appellant’s name, stating that he had been convicted of robbing a bank in 2013 as part of “Project Early Bird”, which involved bank robberies with an identical modus operandi.

[13] The ITO also stated that “[the appellant] is currently on parole for his involvement in similar robberies utilizing the same motive of robbing a bank during the early morning hours just prior to it’s opening”.

[14] This information was inaccurate. The appellant had not in fact been convicted of that bank robbery. He had been acquitted of that charge, although he was convicted of attempted robbery of an armoured vehicle parked outside a bank.

[15] That attempted robbery took place shortly after the bank robberies at the centre of Project Early Bird. The group of men under the project’s surveillance included the appellant, his brother, and another man who was convicted of both the bank robberies and his involvement in the armoured car incident. The robbery charges against the appellant were stayed because he could not be identified as one of the perpetrators. He was on parole for the attempted robbery of an armoured truck at the time the incidents presently before the court took place.

[16] The appellant’s position, at trial and on this appeal, is that these statements showed negligence on the part of the affiant but not willfulness, and that “one can only surmise the powerful effect this misleading and false evidence might have had on the issuing justice”. The warrant, in his submission could not have been validly issued based on the excised ITO.

[17] The central question before the trial judge, then, was whether the warrant as excised could have issued.

[18] The applicable law is well established and, as the trial judge noted, not in dispute. As this court set out, at para. 18 of its decision in R. v. Green, 2015 ONCA 579, 337 O.A.C. 72, “[i]n considering the appellant’s submissions, the ITO must be read as a whole in a common-sense manner and having regard to its author. Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor.”

(3) Did the trial judge err in concluding that the warrant as excised and amplified could have issued?

[19] The trial judge concluded:

[G]rounds existed to believe that evidence with respect to the commission of these offences would be found at the places to be searched are based on the grounds to believe that the accused committed the offences. The grounds in support of this conclusion must be viewed cumulatively, not in isolation. [Emphasis added.]

[20] She set out, in summary form, the following four grounds:

(1) The accused is a man with black skin, about 6’4” tall and slim. The image captured of the robber without his face and head covering that is included in the ITO, and compared with a known photograph of the accused, does not permit any conclusion to be drawn other than the accused could be the robber in that his appearance is not obviously different than the appearance of the robber.

(2) U-Haul confirmed that the accused rented a U‑Haul van in the two months before the robberies, though at the time the warrant was applied for, further details about that were unknown to the police. An eye‑witness told police that about two weeks prior to October 31, 2017, she saw a U-Haul van parked at a location close to, but at some remove from the accused’s residence where he parked a vehicle as the police watched. The offences were committed on October 16 and October 20, 2017.

(3) During surveillance of the accused in late October, 2017, police saw him carrying a bag that looked the same as the bag carried by the robber. The images contained in the ITO of the robber, and of the accused, show them both to be carrying a black, leather-like shoulder bag. The bags appear to be of the same size and shape. The accused and the Ajax robber wore the bag in a cross‑body fashion, with the strap on the right shoulder, and the bag slung to the left side. The length of the strap appears to be quite long, such that the bottom of the bag came to the left knee of both the robber and the accused. Both bags had a pad attached to the strap. The strap was attached to the bag at both ends with two pieces of silver, rectangular shaped hardware. No material differences between the bags carried by the robber and by the accused can be discerned.

(4) The footwear worn by the Ajax and Mississauga robbers was similar to footwear that the accused wore when attending at TD Bank branches in September, 2017 to conduct personal banking. The footwear worn by the Ajax robber has a white and black sole, stripes on the side, black uppers and black laces that is indistinguishable in the photographs from the shoes worn by the accused when he attended a TD Bank on September 20, 2017.

[21] We see no error in the trial judge’s conclusion. With respect, the appellant’s submissions before this court rest on piecemeal arguments. For example, he argued that there was nothing particularly distinguishable about the black bag carried by the robber in the surveillance photos before the issuing justice of the peace.

[22] However, while each single factor relied upon by the trial judge in upholding the warrant, standing on their own, would have been insufficient, it is precisely the cumulative effect of them all that led her to conclude that the warrant could have validly issued.

[23] In effect, the appellant asks this court to impose an unduly onerous standard to the question of whether the warrant could have issued. As the trial judge expressly recognized, that standard is inapplicable to this case:

[T]he question is whether the issuing justice could have concluded that reasonable grounds exist to believe that there is in a building, receptacle or place, anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence. Reasonable grounds, in this context, has been described in various ways: “credibly-based probability”, “based on the operation of reason and not on mere suspicion”, and “a reasonable inference from the facts”. [Citations omitted.]

[24] Moreover, while the appellant dissected these four considerations in detail, especially the photographs included in the ITO, it also included additional information including police observations during the investigation into the 2017 robbery. Accordingly, we agree with the trial judge that the excised ITO, viewed in its entirety, provided sufficient evidence on which the justice of the peace could have issued the warrant.

[25] Given our finding that there was no breach of the appellant’s s. 8 Charter rights, it is unnecessary to address whether the evidence should have been excluded under s. 24(2).

(4) Did the trial judge err in finding that the appellant committed robbery with a firearm?

[26] The appellant argues that the trial judge erred in finding that the weapon used to commit the Ajax robbery was a real firearm, and by treating that fact as an aggravating factor in imposing a sentence of six years on the robbery with firearm count (out of a global sentence of nine years). He claims that there is no evidence distinguishing the weapon used in the robbery from an imitation firearm.

[27] There is no merit to this argument. The trial judge’s finding that the gun was real was amply supported by the record. The bank employee witness believed that gun was real, describing it as black, shiny and metal. She heard the appellant “rack” the gun which allowed the trial judge to reasonably conclude that the weapon was a real firearm. The video surveillance showed the robber pointing the gun at the bank employees in an obviously threatening way.

(5) Disposition

[28] For those reasons, the appeal is dismissed.

“Doherty J.A.”

“A. Harvison Young J.A.”

“J. George J.A.”