Ontario Court of Justice

Date: 2015-07-21

Court File No.: Toronto 4817 998 14-75004041

Between:

Her Majesty the Queen

— and —

Abdulqadir Hassan Weydow

Before: Justice Richard Blouin

Heard on: May 1, 2015

Reasons for Judgment released on: July 21, 2015

Counsel:

• Ms. E. Haydon – counsel for the Crown
• Mr. S. Scratch – Counsel for the defendant Abdulqadir Hassan Weydow

BLOUIN J.:

Introduction

[1] Abdulqadir Weydow stands charged with three offences alleged to have been committed by him on June 18, 2014:

1. Assault
2. Assault with a Weapon (a knife)
3. Theft Under $5000 (there was a Robbery on any reading of the evidence, but the Crown laid a Theft charge)

At the conclusion of the Crown's case, Ms. Haydon conceded that the weapon had not been established, and proceeded only on the simple Assault.

[2] On June 18, 2014, around 10 pm, Ben Boateng was returning from work to his home in the Thorncliffe Park area of Toronto. As almost all nineteen-year-olds do, he was wearing ear buds and listening to music, and did not see or hear another young man approach from behind and put a headlock on him, asking him to, "run his pockets." The details of the Robbery that ensued are not important. There were three alleged assailants – the two main players were never identified, and the defendant is alleged to be the "look-out" (the third person).

[3] At the commencement of the trial, counsel identified the main issue to be that of identification of the defendant, with possibly an argument regarding whether the evidence revealed the role of the third person to be that of a party to the Robbery. The complainant testified. The defendant did not, and defence called no evidence other than being party to minor admissions and an agreed statement of facts.

The Complainant's Identification Evidence

[4] Since Ben Boateng was only a few minutes from home, he knows the residential street where he was robbed well. The evidence relevant to the complainant's identification of the third person includes:

• The area was dark. There was a street light ten feet away but the complainant thinks it was broken.
• One of the assailants referred to the third person as "Kadir," and told him to keep a look-out.
• The complainant had seen the third person before and told him, "I know you."
• The third person was telling the complainant, "You better not snitch."
• The complainant did not know the third person, but had "seen him around the area." He was not asked how many times he had seen him.
• The last time the complainant saw "Kadir" was a couple months before the Robbery at Flemingdon Park plaza.
• The complainant testified that he could clearly see the defendant's face.
• The complainant pointed out the defendant in court.
• The complainant did not phone police until the next evening because he had an exam the next day.
• The complainant remembered the third person from his high school years, although this was around four years earlier.
• The complainant asked a friend who confirmed that "Kadir" was a person who would rob people. This was before he consulted a yearbook.
• The complainant looked at a 2010 high school yearbook (when he was in grade 9, and the defendant was in grade 10).
• When the complainant looked at the names of grade 10 students, looking for "Kadir", he was unable to locate anyone.
• When the complainant looked at the grade 10 photos above the names, he was able to select the photo of Abdulqadir Weydow.
• Regarding the above photo identification from the yearbook, Mr. Boateng's testimony, in-chief, at page 34 of the transcript:

A. Yeah, I concluded that -- that it was actually him because it looked like it was spot-on, like -- like his face, and his name, like the short-form, and because I seen him around, and what people said about him, and, yeah, that's -- that was basically what I concluded, and yeah.

• The complainant told police that the third person was "the guy who looks like Kadir."

[5] When asked in examination-in-chief to describe what the defendant looked like, the complainant referred to his hair as not too long, like medium (he qualified by indicating not long as in touching the shoulders) and his build as chubby. The agreed statement of facts outline the following:

1. On June 19, 2014, Ben Boateng gave the following description to P.C. Dreglia in relation to the incident that had occurred on June 18, 2014: "3rd. Abdulqadir. Black, 18-19 years old, grey hoodies, his face was clearly visible, his hair was long, curly, black hair, kind of like a mini-afro, 5'10" tall, chubby build, I think he was wearing dark blue or black pants."

2. At 2:06 am on June 20, 2014, P.C. Dreglia arrested Abdulqadir Weydow at his residence at 1016 – 200 Gateway Blvd., Toronto. This building is in the neighbourhood described by Ben Boateng in the area of Don Mills Road and Eglinton Avenue.

When cross-examined regarding his evidence that the third person had medium-length hair with the above description to police that his hair was long, the complainant seemed surprised – "Long, I said that?"

[6] In addition, the complainant was asked about a specific description of the third person's face. He could give none, other than it was round and that he "had seen it from somewhere."

Findings

[7] Importantly, there was no evidence lead as to the defendant's appearance when arrested on June 20, 2014, so that a trier of fact could compare the complainant's description of the assailant with the appearance of the defendant when arrested. In addition, the police did not conduct a proper photo line-up, perhaps because of a concern the complainant had self-conducted one already, and would he have been tainted by it.

[8] The dangers of identification evidence, even regarding a witness who claims certainty, is well documented in Canadian law (the Sophonow Inquiry). The danger is significantly increased in situations where the witness' ability of observation was under poor lighting conditions, and during a traumatic incident, or where improper or insufficient out-of-court identification procedures are employed. Although this is a "recognition" identification case, recent opportunities to observe the defendant in the community were not fully explored. The only evidence of "seeing him around" the Flemingdon Park Community over the last few years, was the last time he saw him; three months before the Robbery. In addition, the complainant was told by a friend that the defendant was the guy he was looking for, and that he went to school at Marc Garneau. This led the complainant to search the 2010 yearbook.

[9] In my view, because of the shortcomings outlined above, the Crown falls far short of proving the identity of the lookout in this case upon a criminal standard of beyond a reasonable doubt, and the defendant must be acquitted. Although moot, there was plenty of evidence to establish party liability for the Robbery against that third party.

Released: July 21, 2015

Signed: "Justice Blouin"