Court File and Parties

Ontario Court of Justice

Date: December 1, 2014

Court File No.: Ottawa 14-R2058

Between:

Her Majesty the Queen

— and —

Mohamed Ismail Jama and Mohamed Ali Salad

Before: Justice Robert Wadden

Heard on: November 24-28, 2014

Reasons released on: December 1, 2014

Counsel

Ms. Lisa Miles — Counsel for the Crown

Ms. Diane Condo — Counsel for Mohamed Jama

Ms. Jasna Drnda — Counsel for Mohamed Salad

Reasons for Judgment

WADDEN J.:

[1] Mohamed Jama and Mohamed Salad are charged on a seventeen count information with offences including uttering threats, forcible confinement, extortion, assault, intimidation, being unlawfully in a dwelling and firearms offences. Mr. Jama and Mr. Salad are alleged to have taken over an apartment and committed various crimes in it during late November and early December, 2013.

[2] On December 3, 2013 the police were called to an apartment building at C[…] St. in Ottawa after a complaint was made that the superintendent of the building, Marc-Andre Aubin, had been threatened with a gun in apartment X2. The police arrested both Mr. Jama and Mr. Salad in the apartment and a 9 mm handgun – a prohibited firearm - was found on the balcony.

Apartment X2

[3] Apartment X2 was rented by P.D. P.D. testified that as of December 2013 she had known Mr. Jama for several months and had met Mr. Salad more recently through Mr. Jama. She testified that the men had been staying on and off in her apartment for several days and that by December 3 she had wanted them to leave but they would not. On December 3 she eventually left the apartment about 4:30 or 5 p.m. and went to stay elsewhere for the night. She was told the next day that Mr. Jama and Mr. Salad had been arrested in her apartment and a gun found there.

Evidence of Marc-Andre Aubin

[4] Marc-Andre Aubin was the superintendent of the apartment building at C[…] St., where he had been working for approximately 2 months prior to December 3, 2013. He lived in the building on the fifth floor in apartment X1. He knew P.D., the tenant of apartment X2, who lived on the same floor. He testified that he had seen Mr. Jama and Mr. Salad "quite a few times" as they were in the building just about every day. He had seen them coming from apartment X2 and elsewhere in the building, such as the entrance and stairs. He did not know them by name but frequently spoke to them in passing. Prior to December 3 he had not had any difficulties with them.

[5] Mr. Aubin positively identified both Mr. Jama and Mr. Salad in court, without hesitation. He acknowledged that numerous people came to P.D's apartment from time to time, including other black males, but Mr. Aubin had no uncertainty in his ability to distinguish Mr. Jama and Mr. Salad from other black males. Throughout his testimony he consistently maintained that he could identify these men.

[6] Mr. Aubin testified that on the afternoon of December 3, 2013 he was asked by Mr. Jama to go to apartment X2. He went into the apartment around 5 p.m. and was speaking to Mr. Salad in the bedroom when Mr. Jama suddenly "came out of nowhere" from behind and pointed a black gun to the left side of his face. Mr. Jama demanded that in the future Mr. Aubin provide information about who was coming and going from the building, such as police, and that he make copies of keys for certain apartments. During this encounter Mr. Salad remained on the bed, not saying or doing anything. When Mr. Aubin agreed to Mr. Jama's demands the gun was taken away and Mr. Aubin left the apartment. Nothing else was said. Mr. Salad did not say anything during the encounter or as Mr. Aubin left.

[7] Mr. Aubin maintained that he could see Mr. Jama as he held the gun to his face and spoke to him. Although he had a limited view he believed it was a gun held to his face from the way it looked, the way it felt and the way it was being used.

[8] When Mr. Aubin left the apartment he called his uncle, who then called Mr. Aubin's district manager, to report what had happened. Mr. Aubin said he did not call the police due to concern that Mr. Jama and Mr. Salad would know he had called them. His district manager called the police and Mr. Aubin left the building and went to a nearby restaurant to wait for them. As he left the building the police were already in the lobby, but he did not speak to them.

The Police Response

[9] The police were dispatched in response to this incident at approximately 5:37 p.m. When they first arrived at the apartment building they were not aware in which apartment the gun incident had taken place so they waited in the lobby for approximately 45 minutes.

The Evidence of L.R.

[10] While the police were in the lobby another witness, L.R., arrived at the apartment building.

[11] L.R. testified that she knew Mr. Jama through her ex-boyfriend, M.J., who was a drug addict. She testified that she had first met Mr. Jama in the weeks before December 3 and she understood Mr. Jama to be Mr. M.J.'s drug dealer. In the weeks prior to December 3 she and Mr. M.J.'s father had made an arrangement with Mr. Jama to pay off Mr. M.J.'s debt. L.R. testified that there were no explicit threats made by Mr. Jama to her but she agreed to pay half of the debt because she was concerned that Mr. Jama knew where she lived and she was afraid he would come to her house.

[12] On December 3 Mr. Jama called her and told her that "plans had changed" and he needed all the outstanding debt repaid immediately, rather than in instalments as had been agreed upon. L.R. hurried home, got her bank card, made arrangements to bring her son to a relative's house and got in a cab. She went to a bank machine and withdrew enough money to pay off the whole debt. She dropped her son off with an aunt and told her the address she was going to and how long she expected to be, so that if anything happened someone would know where she had gone. She testified she did not consider saying "no" to Mr. Jama because he knew where she lived. When she arrived at the building she saw uniformed officers in the lobby but did not speak to them.

[13] L.R. called Mr. Jama from the lobby and he sent Mr. Salad to bring her up in the elevator. They went to apartment X2. On entering the apartment she kept her jacket and boots on and went into the bedroom with Mr. Jama, where she sat on the chair while he sat on the bed. When he asked for the money she asked him if she paid it in full would he leave her alone. She did not feel he was agreeing to that, but she gave him the money anyway.

[14] L.R. then said she wanted to leave but Mr. Jama told her, politely, to sit down and talk. L.R. returned to the seat she had been in. Mr. Salad then came into the room and sat on the bed beside Mr. Jama. A gun appeared – L.R. was not sure if Mr. Salad had brought it in or if Mr. Jama took it out of his pocket. Mr. Jama was holding the gun, saying to L.R. "look at this, look at this" as he rested it on his lap, with the barrel pointed towards her. L.R. testified she was feeling nerve-wracked but stayed calm. At one point Mr. Jama was agitated by the conversation and racked the gun, twice, with the barrel pointed down. Mr. Salad said something to calm him down. At other points Mr. Jama was waving the gun around.

[15] L.R. testified that as they were in the bedroom the police began knocking on the door. Mr. Jama turned off the lights and told her to take off her jacket and lay on the bed with him. Mr. Salad took the gun and walked onto the balcony. L.R. was challenged on her ability to see Mr. Salad from the bedroom, given the obstruction of curtains and furniture and her position on the bed. I am satisfied from a review of the photographs of the apartment and the description of it provided by the police witnesses and L.R., that L.R. would have been able to see Mr. Salad on the balcony, and that there was sufficient time before the police entered for her to have been looking out. I accept her evidence that she saw Mr. Salad on the balcony in the area where the gun was found.

The Firearm

[16] The police entered the apartment and found L.R. and Mr. Jama in the bedroom and Mr. Salad in the living room. After a brief search a semi-automatic 9 mm handgun, unloaded, was found on the balcony near the place where L.R. had seen Mr. Salad minutes before.

[17] It is admitted that the gun that was found is a prohibited firearm with an obliterated serial number.

Identification

[18] Counsel for Mr. Jama and Mr. Salad take the position there is insufficient evidence with respect to the identification of Mr. Jama and Mr. Salad by Mr. Aubin. I disagree. The identification evidence from Mr. Aubin is unequivocal. He was acquainted with Mr. Jama and Mr. Salad for the two months he was the superintendent of the building, having seen them frequently and spoken to them regularly. He positively identified both men in court and described the role each played on December 3.

[19] Mr. Aubin's identification is corroborated by other evidence. According to P.D., Mr. Jama and Mr. Salad were in her apartment shortly before the time Mr. Aubin said he arrived. P.D. left the apartment approximately 4:30 – 5 p.m. that afternoon and Mr. Jama and Mr. Salad were there. In fact, her evidence was that she left the apartment because those men would not leave. According to the evidence of L.R., Mr. Jama and Mr. Salad were in the apartment shortly after Mr. Aubin left, when she arrived at approximately 6 p.m. They were still present in the apartment when the police arrived. I accept the evidence of Mr. Aubin identifying each of these men.

[20] I have no doubt that L.R. accurately identified Mr. Jama and Mr. Salad. She identified each man in a photo lineup within days of the events, and again in court. Both men, and no one else but L.R., were in the apartment when the police entered.

The Firearm Offences

[21] I accept the evidence of Mr. Aubin that Mr. Jama held a black gun to his face. Mr. Aubin was in a position to see what was being held to his face. He immediately notified his uncle which led to the police attending and discovering a black gun within approximately an hour and a half of it being used on him. The discovery of the gun in the same apartment where he says it was used on him is strong circumstantial evidence that it was the same gun.

[22] I find that Mr. Jama was in possession of the prohibited firearm when Mr. Aubin was in the apartment. I accept that Mr. Jama used the firearm to threaten Mr. Aubin. Even though no threatening words were uttered, holding a gun to Mr. Aubin's face while making demands is clearly conveying a threat to cause death or bodily harm to him.

[23] I further accept the gun located by the police was the same gun L.R. saw Mr. Jama and Mr. Salad handling. L.R. described the gun as a grey and black gun that was not a revolver and that was a little smaller than a police officer's gun. In court, she positively identified the gun located by the police as the one she saw Mr. Jama and Mr. Salad handle. Although I treat this evidence with the usual caution of in court identification, it is corroborated by the fact that the gun was found in the same place on the balcony she observed Mr. Salad moments after he left the bedroom. I accept she was in a position to see Mr. Salad on the balcony from her position on the bed, even though when the police entered the room she was facing the opposite direction. There was sufficient time for her to make the observations before she ended up in that resting place.

[24] The only discrepancy in L.R.'s description of the gun was in her original statement to the police, in which she described it as light grey in colour. Given the condition of the gun as I observe it, it can fairly be described as grey and black. I do not regard this as a striking inconsistency in the context of all of her evidence. Even absent L.R's description and identification of the gun, given the circumstances in which it was found by the police, within minutes of her having seen it, I have no doubt that the firearm located is the same gun she saw.

[25] I find that the Crown has proven Mr. Jama guilty of Counts 1 and 2 of possession of a prohibited weapon and prohibited firearm contrary to s. 91(3) of the Criminal Code. The serial number was defaced and there is a presumption under s. 108(4) that Mr. Jama had knowledge of that. Mr. Jama has therefore been proven guilty of Count 3, contrary to s. 108(2) of the Code.

[26] I accept the evidence of Mr. Aubin that Mr. Jama threatened him with the firearm and I find he has been proven guilty of Count 5, of using the firearm while committing the offence of threatening, contrary to s. 85(3), and Count 6 of careless use of a firearm contrary to s. 86(3).

[27] The offence of pointing a firearm is an offence of general intent. I accept L.R.'s evidence that Mr. Jama pointed the firearm at her as he laid it on his lap. This is sufficient to prove the offence of pointing the firearm at L.R. contrary to s. 87(2), and I find that Count 10 has been proven beyond a reasonable doubt. L.R.'s evidence of Mr. Jama waving the firearm around and racking it in the bedroom are further evidence of careless use of a firearm and provide further evidence to prove Count 6 contrary to s. 86(3).

[28] With respect to Mr. Salad, I do not find there is sufficient evidence that he was a party to Mr. Jama's offences against Mr. Aubin. Mr. Salad did not say or do anything while Mr. Jama held the gun to Mr. Aubin's face. There is not sufficient evidence to prove that he knew Mr. Jama would use the gun on Mr. Aubin or that he did anything to assist or encourage Mr. Jama.

[29] However, I accept L.R's evidence that Mr. Salad took the gun from Mr. Jama after the police started knocking on the door, and that Mr. Salad went onto the balcony and hid the gun. I do not accept the submission of Mr. Salad's counsel that a defence of necessity is available. There is simply no evidentiary foundation or air of reality to that.

[30] I find that Mr. Salad's actions constitute possession of the firearm and that the Crown has been proven that that he is guilty of Counts 1 and 2 of possession contrary to s. 91(3) of the Criminal Code. As the serial number of the gun had been obliterated and there is no evidence to rebut the presumption under s. 108(4), Mr. Salad has been proven guilty of Count 3, contrary to s. 108(2) of the Code.

[31] As Mr. Salad was under a s. 109 firearms prohibition order on December 3, 2013 he will also be found guilty of Count 11, possession contrary to a prohibition order, contrary to s. 117.01 of the Code.

[32] With respect to the count of careless use of the firearm, I find that Mr. Salad has not been proven to be a party to Mr. Jama's use of the firearm against Mr. Aubin or later in the presence of L.R. During Mr. Salad's possession of it he carried, handled and hid it, but these actions do not constitute a "use" of it. It is clear from the wording of s. 86 that there is a distinction between carrying, handling, storing and using a firearm. As the particulars of Count 6 specify "use" of the firearm I find that offence has not been proven against Mr. Salad.

Extortion of L.R.

[33] Mr. Jama is charged, in Count 9, that he did "by threats, … with intent to obtain money, induce L.R. to pay money to Mohamed Salad and Mohamed Jama, contrary to s. 346, subsection (1.1) of the Criminal Code …"

[34] The Crown takes the position that the actions of Mr. Jama in demanding L.R. pay money to him constitute extortion. Counsel for Mr. Jama takes the position that Mr. Jama never threatened L.R., that he was polite throughout his dealings with her and there was no extortion.

[35] The law relating to extortion under s. 346(1.1) of the Code was set out by the Supreme Court in R v. Barros 2011 SCC 51. The Court held, at paragraph 53, that

Extortion requires the Crown to establish beyond a reasonable doubt (i) that the accused has induced or attempted to induce someone to do something or to cause something to be done; (ii) that the accused has used threats, accusations, menaces or violence; (iii) that he or she has done so with the intention of obtaining something by the use of threats; and (iv) that either the use of the threats or the making of the demand for the thing sought to be obtained was without reasonable justification or excuse.

[36] The Court further noted, in paragraph 54, that "'one item in the accused's course of conduct' is not to be isolated, but taken in the context of the 'course of conduct considered in its entirety'".

[37] Mr. Barros was a private investigator who had been hired by an accused person. Mr. Barros approached the investigating officer on the case and told him that he knew the identity of the confidential informant in the investigation. Mr. Barros then mentioned several cases he had worked on when he was a police officer where the charges had been dropped in order to protect an informer's identity. Mr. Barros did not make any threats, but the investigator testified that he understood Mr. Barros to be asking him to drop the charges if he didn't want the identity of the informant to be revealed. The Court held that constituted extortion.

[38] What was of importance in R. v. Barros was the shared knowledge and experience of Mr. Barros and the investigator. They both understood the consequences that certain action or inaction would have, without it having to be stated. The Court stated, at paragraph 60, that

the law does not require the person accused of extortion to act clumsily and without subtlety. What is required is that the message be sent in words definite enough to convey to a person of ordinary intelligence in the position of [the investigating officer], taking into account his shared police background with Mr. Barros, a threat of harm to his "secret source" if the prosecution was not ended.

[39] The drug world is also an environment in which there is an unspoken understanding that predictable consequences that will follow certain actions. As has been recognized by Ontario courts, the drug subculture is steeped in violence. The weak are at the mercy of the strong, and the victimized have less resort to the protection of law enforcement as they, or those close to them, are engaged in illegal activities themselves. Real or implied violence is a constant factor in the drug world.

[40] It was in this environment that Mr. Jama's demand that L.R. pay him money occurred.

[41] L.R is an articulate, well-educated young woman who works full-time and raises her son as a single mother. I find she is familiar with the drug subculture, having been a drug user before her child was born and having been in a relationship for years with a drug addict, M.J.. She was aware that Mr. Jama was a drug dealer and had to be taken seriously. She had an eight-year old son at home and she knew that Mr. Jama either knew where she lived or could easily find out through his connections to Mr. M.J.. She knew that the prospect of Mr. Jama coming to her home to collect the money from her posed a risk of harm to her and her son.

[42] A "veiled reference may constitute a threat if it is sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she fears or would prefer to avoid": see Barros at para 61.

[43] In this case, it is clear from the evidence that the demand by Mr. Jama that L.R. bring money to him contained a veiled threat that unwanted consequences would befall her if she did not comply. L.R. testified that she did not want to give Mr. Jama the money but did so out of fear of the consequences. Her actions on the night of December 3 speak volumes – she arranged for someone to look after her son, and made sure that person knew the address she was going to and when she would be expected back. She brought no identification and minimal items with her in case she was robbed. These actions speak of her concern for the risk of violence that existed in her dealings with Mr. Jama.

[44] I find that Mr. Jama's actions fit the criteria for extortion set out by the Supreme Court in R. v. Barros. Mr. Jama demanded that L.R. pay money to him and intended his demands to include a veiled threat to L.R. that unwanted consequences would befall her if she did attend the apartment to pay him the money.

[45] In these circumstances, I find that Mr. Jama committed an extortion of L.R. contrary to s. 346(1.1) of the Code.

Unlawful Confinement of L.R.

[46] Mr. Jama and Mr. Salad are jointly charged with unlawful confinement of L.R. contrary to s. 279 of the Code. The Crown asks me to find that L.R. was unlawfully confined in the apartment, at least from the point that she told Mr. Jama she wanted to leave until the police arrived.

[47] L.R. testified that she felt compelled to stay in the bedroom when Mr. Jama asked her to. I accept that the act of confinement may be committed by psychological, rather than physical, means, and I recognize that L.R. may have reasonably felt there were implied threats compelling her to stay. However, in order to convict on this charge I must find that the Crown has proven the mental element for Mr. Jama – that he intended to confine L.R. On an assessment of the evidence surrounding that incident I find there are competing inferences available about his state of mind. I do not find the offence has been proven. Nor do I find it has been proven against Mr. Salad.

Offences against P.D.

[48] Counts 12 to 17 on the information allege that Mr. Jama committed numerous offences against P.D.

[49] P.D. was the tenant of apartment X2. She was not at home when the police arrested Mr. Jama and Mr. Salad in her apartment. She was arrested and questioned by the police in the days following December 3 but was not charged. In her statement to the police at that time she denied any knowledge of a gun and did not allege Mr. Jama and Mr. Salad had committed any crimes against her, except being unlawfully in her apartment.

[50] On January 28, 2014 P.D. testified before a landlord and tenant tribunal that Mr. Jama had committed acts of violence against her including assault, extortion, intimidation and pointing a firearm. Her testimony at the tribunal was ruled admissible at this trial under the principled exception to the hearsay rule.

[51] In court, P.D. recanted the evidence she gave at the tribunal and denied that any of those crimes had occurred. She testified that in December 2013 and January 2014 she was addicted to drugs and alcohol and regularly engaged in prostitution. By the time of trial she had been clean of addictions for eight months, turned her life around and regained access to her child. She testified that she lied in her testimony to the tribunal because she wanted to keep her apartment and felt it would further her cause to portray herself as a victim of abuse at the hands of Mr. Jama.

[52] The manner in which P.D. testified at the tribunal is compelling, and some of what she alleges is corroborated by injuries observed by Mr. Aubin. But given her blanket denial of these allegations at trial, her stated motive to lie at the tribunal and her admissions of substance abuse in the period surrounding her tribunal testimony I cannot accept her evidence at the tribunal as reliable. On her description of her lifestyle at that time compared to now she presents as a more credible witness now.

[53] At trial, P.D. testified that in December 2013 Mr. Jama had been staying in her apartment and refused to leave. His intransigence led her to leave her own apartment and stay elsewhere. Based on her testimony at trial, which I accept, and all the other evidence I accept, I find that the Crown has proven that Mr. Jama was unlawfully in the dwelling of P.D. for the purpose of committing indicable offences, contrary to s. 349 of the Code.

[54] Having rejected P.D's evidence from the tribunal I find the charges of assault, assault with a weapon, extortion, intimidation and pointing a firearm relating to P.D. have not been proven.

Summary

[55] In summary, Mr. Jama is found guilty of

• Count 1, contrary to s. 91(3)
• Count 2, contrary to s. 91(3)
• Count 3, contrary to s. 108(2)
• Count 5, contrary to s. 85(3)
• Count 6, contrary to s. 86(3)
• Count 9, contrary to s. 346(1.1)
• Count 10, contrary to s. 87(2); and
• Count 15, contrary to s. 349.

He is found not guilty of Count 4 (s. 96(2)), Count 7 (s. 264.1), Count 8 (s. 279), Count 12 (s. 266), Count 13 (s. 267), Count 14 (s. 346), Count 16 (s. 423) and Count 17 (s. 87).

[56] Mr. Salad is found guilty of

• Count 1, contrary to s. 91(3)
• Count 2, contrary to s. 91(3)
• Count 3, contrary to s. 108(2) and
• Count 11, contrary to s. 117.01

Mr. Salad is found not guilty of Count 4 (s. 96(2)), Count 5 (s. 85(3)), Count 6 (s. 86(3)), Count 7 (s. 264.1), Count 8 (s. 279) and Count 9 (s. 346).

Released: December 1, 2014