R. v. Ibrahim
Court File No.: Toronto Date: 2015-07-22 Ontario Court of Justice
Between: Her Majesty the Queen — and — Nahui Ibrahim
Before: Justice Fergus O'Donnell
Heard on: 20 October and 12 November, 2014 and 7 and 8 May, 2015
Reasons for judgment released on: 22 July, 2015
Counsel:
- Ms. S. Loosemore, for the Crown
- Mr. G. Leslie, for the defendant, Nahui Ibrahim
O'Donnell, J.:
Overview
[1] Nahui Ibrahim stands charged with theft and assault with a weapon and possession of a knife for the purpose of committing a criminal offence. He was charged jointly with Andrew Edwards, but I stayed the charges against Mr. Edwards under s. 11(b) of the Canadian Charter of Rights and Freedoms after the trial was unduly delayed as a result of a failure by the police to subpoena a crucial witness who had left the country for several months by the time they got around to subpoenaing him.
[2] The combination of charges will be familiar to anyone who spends too much time around provincial court. The allegation is, in effect, that Mr. Edwards and Mr. Ibrahim robbed a student at York University late one night, but the lack of a summary conviction option for the actual charge of robbery necessitates resort to the combined charges of assault (perhaps with a weapon depending on the facts) and theft because otherwise a defendant in every robbery charge, however "minor",[1] would be entitled to a jury trial. I mention this not only because the creation of a summary conviction option for robbery charges would make a lot of sense but so that anyone reading these reasons will understand if I occasionally refer to "robbery" and the like—i.e. because that is what this was, even if there was no such charge in the information.
[3] This is entirely an identification case. There is no serious issue that the victim, Mr. Malik, was robbed at knifepoint just outside his home. He is not in a position to identify his assailants. The question is whether the evidence of two men being seen and recorded[2] entering and leaving a nearby apartment building around the time of the robbery, the evidence about the identity of those two men and the evidence about whether those two men were the same men who proceeded from the building to rob Mr. Malik is sufficient to prove beyond a reasonable doubt that those men were Mr. Ibrahim and Mr. Edwards, or to be more precise since Mr. Edwards's charges have been stayed, whether one of those men was Mr. Ibrahim.
[4] Sarmad Malik was a student at York University. Around 2 or 2:15 a.m. on 1 April, 2013 he was returning home from studying at the library. As he got close to his home on Sheffer Terrace he saw two people and they got closer to him as he got closer to home. One of them got in front of him and the other was behind him. They asked how he was; he realized what was going down. One of them told him to empty his pockets; he did. The other guy said "everything" and went through his pockets, taking his wallet and mobile phone also. As they were doing that, the first man, who was wearing a hoodie, brandished a large knife. This was the heavier of the two men (as between them, Mr. Ibrahim is heavier-set than Mr. Edwards, who, at the time of trial at least, was quite thin).[3] The hoodie looked too big for him; he was wearing grey sweat pants. He was about 5'7" or 5'8". Both men were black, in their late teens or early twenties. The second man, who had gone through his pockets, was thinner and a few inches taller. He was wearing jeans. After they robbed him of his $600 mobile phone and about $400 or $500 in cash, they walked south from his house (the opposite direction from 320 Assiniboine). He went inside, roused one of his house-mates and used his 'phone to call the police.
[5] Mr. Malik eventually reviewed photo line-ups but was unable to identify either of the assailants.
[6] Ali Shahid was another student. He had gone to a friend's apartment at 340 Assiniboine that night to study. He testified that between 1:40 a.m. and 2 a.m. he was parked outside 340 Assiniboine. He had just come back from a quick trip to a variety store with some friends in anticipation of a late night of studying for exams. He remained in his car while his friends went inside because he had to make a telephone call to his wife. As he sat in his car he saw two men outside the neighbouring building, 320 Assiniboine. One was heavier set than the other; the heavier-set one was wearing an over-sized wintry jacket and had a light-coloured scarf around the lower part of his face. He then saw them follow another man inside 320 Assiniboine. Mr. Shahid was making an assumption about them following the man into the building because the actual front door of the building was blocked from his line of sight, but I am satisfied on the video evidence and the admission that nobody else entered that building during the relevant time period that Mr. Shahid's assumption was correct. He said he then saw them standing by the side door of 320 very soon after. The video evidence from 320 Assiniboine shows that the two men who entered 320 Assiniboine by the front door had indeed exited by the side door within about two minutes. Mr. Shahid said he was confident they were the same people because their clothing was the same. The video evidence from 320 Assiniboine also confirms Mr. Shahid's description of the two "suspicious" men entering 320 Assiniboine within a second or two behind another man.
[7] Mr. Shahid said that the heavier of the two men then appeared to notice a man walking on the other side of Assiniboine, i.e. on the south side. The heavier man followed this person and signalled the thinner man to join him, with a signal that Mr. Shahid could not really make out. They caught up to the man on Sheffer Terrace. Mr. Shahid responded to these events by pulling out of the parking lot and into the intersection of Assiniboine Road and Sheffer Terrace. From that vantage point he had his car lights facing the scene and saw the heavier man pull something metallic and shiny from his jacket. The two men robbed the other man. Mr. Shahid called 911. The two assailants walked briskly southward.
[8] Mr. Shahid said there were other people around that evening but not at that time. The area was not very crowded.
[9] Constable David Caccia reviewed the building video footage and created an internal police bulletin with images of the two men entering and leaving 320 Assiniboine from that footage, which was circulated across the Toronto Police Service. 320 Assiniboine is within a minute's walk from the scene of the robbery. I am satisfied that there is no credible dispute that the men seen entering the building and the men seen leaving are the same two men.
[10] Constable Gary Hoang had been a school resource officer at C.W. Jefferys Collegiate, a secondary school in the Keele Street and Finch Avenue area for three years, ending in June, 2012. The school is quite close to the university area where the robbery occurred. On 2 April, 2013 he happened to meet Constable Caccia in the division parking lot and Caccia asked him to look at some images from the Malik robbery the day before. When he looked at the images he recognized one of the men in the video as a student he knew as "Nahui". This was the second of the two men entering the building. He was wearing grey sweatpants and a black or possibly very dark grey hoodie, which was clearly oversized.
[11] That evening he contacted a staff member from the school, mentioned "Nahui" as the first name of a student and was told "Ibrahim" was the surname, which he said he recognized instantaneously once it was said to him.[4] Constable Hoang testified that over a three year period he had been at C.W. Jefferys almost every day. He said he had often seen Mr. Ibrahim in the hallway. He tried to initiate contact with Mr. Ibrahim but got no response, so he took steps to determine if he was even a student at the school by making inquiries of staff and checking the yearbook, thus determining his name while he was the school resource officer. He recalled that Mr. Ibrahim would be at the school for a period and would then be absent for a stretch for some reason, but would then come back. He could not recall the last time he had seen Mr. Ibrahim but was confident that Mr. Ibrahim had been at the school for at least two of the three years he had been school resource officer.
[12] Constable Hoang identified Mr. Ibrahim in court.
[13] Constable Hoang was not cross-examined on his evidence.
[14] The police executed a search warrant at Mr. Ibrahim's home on 11 April, 2013. In the laundry room they found a pair of grey track pants and a large black Carhartt brand hoodie. Nothing traceable to Mr. Malik, the victim of the robbery, was found in Mr. Ibrahim's home. No white or light-coloured scarf was seized. I do not believe there is any serious issue about the seizure of these items in Mr. Ibrahim's home.
[15] I was favourably impressed with the witnesses who gave relevant evidence in the sense that I felt that all of them strove to give fair and balanced evidence and that none of them reflected any exaggerated confidence or any bias in giving their evidence. For example, Mr. Shahid was very receptive to suggestions put to him about his inability to provide various details of the people he saw outside 320 Assiniboine in light of the distance, time for observation and lighting conditions.
[16] Both counsel agreed that there were three things I had to be satisfied of before I could find Mr. Ibrahim guilty, namely:
(a) That Mr. Ibrahim was one of the two men on the video in 320 Assiniboine;
(b) That the same person was one of the people Mr. Shahid saw beside 320 Assiniboine shortly before the robbery.
(c) That the same person was involved in robbing Mr. Malik.
[17] The onus is on the Crown to prove each of the charges against Mr. Ibrahim beyond a reasonable doubt. Mr. Ibrahim is presumed innocent throughout the proceedings and has nothing to prove. Proof beyond a reasonable doubt is a very high standard of proof. I must be particularly cautious in identification cases because identification cases can result in wrongful convictions.
[18] There are clearly limitations in some of the evidence led by the Crown. For example, Mr. Shahid was making observations from a fair distance under less than ideal lighting conditions for at least some of the time. He described the heavier man's jacket as going to the knees and the heavier man in the building video does not have a jacket that goes to the knees; but because it is clearly oversized (as Mr. Shahid said), as seen on the video, it does run lower than some hoodies, running down to the bottom of the man's backside. Also, it might be said to be "possible" that because Mr. Shahid did not actually see the two men come out the side door of 320 Assiniboine, that there could have been another two men, although I think that is "possible" only in the most exaggerated sense of that word, given the tight timing, the video, the similarity of clothing and the very low pedestrian activity in the area at the time. As for Mr. Malik, one limitation with his evidence is that he describes the heavier man's hoodie as "grey" when the hoodie worn by the heavier man in the video appears black or at the very least extremely dark grey. It could also be observed that neither Mr. Shahid nor Mr. Malik referred to the heavier-set assailant wearing glasses, while the heavier man in the video is wearing glasses.
[19] I have considered the concerns raised by Mr. Leslie in his thorough submissions. I do not think that any of them is sufficient to demonstrate a reasonable doubt in this case.[5] For example, when it comes to the fact that neither Mr. Shahid nor Mr. Malik mentioned an assailant with glasses, Mr. Shahid was making his observations from such a distance and under such conditions that he conceded that he could not even tell the skin colour of the two men. Mr. Malik, the victim of the robbery, might be forgiven omitting a detail of that nature in the circumstances. It is often a minor miracle when victims of armed robberies remember anything other than the gun or knife with which they are faced. It takes some review of the video to notice the glasses because they are mostly frameless or very lightly-framed.
[20] When Mr. Leslie points to Mr. Shahid's evidence that the larger man had a scarf over part of his face but Malik's assailant was not wearing a scarf when he committed the robbery, he makes a valid but non-definitive point that it would make sense to wear a mask if one had one, but not every robber acts logically in the heat of the moment. From the sighting of the victim to the robbery was perhaps a minute.
[21] When I look at all of the evidence, I am entirely satisfied based on Mr. Shahid's evidence and the video evidence, that the two men Mr. Shahid saw disappearing out of sight near the front entrance of 320 Assiniboine were the same two men who had entered that building minutes before, following closely on another, apparently unrelated, man and who left 320 Assiniboine by the side entrance minutes later, where they again came to Mr. Shahid's attention. On all the evidence, any other conclusion would be perverse. The idea that those two men had their clothing doubles coincidentally in the area strikes me as untenable.[6] The man seen by Mr. Shahid was wearing an oversized hoodie, the man seen entering 320 Assiniboine within minutes of that was wearing an oversized hoodie and the man who robbed Mr. Malik, with Mr. Shahid having almost unbroken observations was also wearing an oversized hoodie. The connection between those two men and the two robbers on Sheffer truly is an unbroken connection on Mr. Shahid's evidence, which I accept unreservedly. Accordingly, I am satisfied beyond a reasonable doubt that the second and third of the questions has been answered in the Crown's favour.
[22] That brings us to the question of whether or not the Crown has proved beyond a reasonable doubt that Mr. Ibrahim is the heavier-set man in the video from 320 Assiniboine. The evidence available on that issue includes the evidence of Constable Hoang, my own observations in keeping with the ruling in R. v. Nikolovski, and other details such as the seized clothing.
[23] There was no dispute about Constable Hoang's entitlement to give recognition evidence in this trial, only about the weight that should be given to that evidence. That was a responsible concession. Constable Hoang's evidence, which I have noted was balanced and given without any sense of exaggeration or bias, was based on three years as a school resource officer, in daily attendance at the school attended by "Nahui", at least two years of which overlapped with "Nahui's" attendance. I do not think it undermines Constable Hoang's evidence that he cannot recall precisely when he last saw "Nahui". Given the context in which he came to know "Nahui", it would be surprising if Constable Hoang had any ability to lock down such a date, especially since "Nahui" was not involved in any specific events that caused Constable Hoang to interact with him. I am of the view that Constable Hoang's recognition evidence is of great value in the Crown's case. It was not even cross-examined on.
[24] When it comes to the Nikolovski evidence, I have reviewed the building video and the video of Mr. Ibrahim many times. There is a striking similarity in the general structure of the faces on both videos, the hairline and the structure of the beard (there is only an eleven day gap in the two videos). I have also noted that the glasses worn in both videos are strikingly similar, with a noticeable dark/black rim across the top and rimless or lightly-rimmed bottoms and sides. The man in both videos looks like the same man to me.[7]
[25] The Crown's case on identity is further strengthened by the clothing. The oversized hoodie worn by the man in the building video (who I am satisfied was one of Mr. Malik's assailants) is consistent with the appearance of the hoodie seized from Mr. Ibrahim's home a week-and-a-half later and the location, sizing and general characteristics of the label, which is visible on the building video albeit not in detail, is identical and not particularly common. In my repeated viewings of the video, I also took pains to assess Mr. Leslie's contention that the alleged tear that the Crown says is visible on the sweatpant leg of one of the men in the video is in fact just a crease. I am entirely satisfied that what is visible in the video is in fact a tear and that it is in the very same location as the tear in the sweatpants seized from Mr. Ibrahim's home.
Has The Crown Proved Its Case Beyond A Reasonable Doubt?
[26] On all of the evidence I am satisfied that the Crown has established beyond a reasonable doubt that the men Mr. Shahid saw around 320 Assiniboine were the same men seen on the building video, entering and leaving, that they were the two men who robbed Mr. Malik and that Mr. Ibrahim was the heavier-set of those two men. The Crown has proved its case beyond a reasonable doubt and I find Mr. Ibrahim guilty as charged.
Delivered: 22 July, 2015
Footnotes
[1] My use of the word "minor" to describe this offence is intended solely to position it relative to other types and characters of robbery, not in any way in the sense of "trivial" or "unimportant". The offence was not minor to the victim, Mr. Malik, and patterns of offence such as this are not minor to the broader community or to any local community that may be plagued by a pattern of such offences and as a result lives with the fear and uncertainty that comes with such offences and compromises their sense of security in their own neighbourhoods. However, the prosecution of such offences might be more ideally handled if there were a summary conviction option for the offence of robbery and the Charter of Rights would allow the creation of such an offence with a maximum penalty as high as five-years-less-a-day before a constitutional right to a jury trial would be triggered. The same would be true in relation to "minor" trafficking offences under the Controlled Drugs and Substances Act, for many of which no summary conviction option exists and in relation to which a defendant is entitled to require a trial by jury because of the maximum penalty by indictment, but for most of which offences the penalty actually imposed upon conviction comes nowhere close to the constitutional trigger of five years' imprisonment.
[2] There was no issue about the accuracy of the videotapes and it was agreed that no people other than the two people on the video played in court entered the relevant buildings during the relevant time period.
[3] There is also a distinct difference in build between the two men on the video at a nearby apartment building, the larger of whom I am satisfied beyond a reasonable doubt was Mr. Ibrahim.
[4] Obviously, certain parts of Constable Hoang's evidence were hearsay. I am not taking any of those components into account as part of the evidence against Mr. Ibrahim.
[5] Obviously, it is not incumbent on Mr. Leslie to demonstrate a reasonable doubt. The burden is always on the Crown to prove its case beyond a reasonable doubt, which includes the Crown demonstrating the absence of reasonable doubt.
[6] I am not troubled by Mr. Shahid's reference to the heavier man having a light-coloured scarf over the bottom of his face when he noticed him before entering the building. On the video, there is clearly a light coloured area of clothing under the heavier man's chin, that is, at the very least, consistent with this observation. The dropping of a scarf is a matter that would take a second or less. Indeed, it appears that the heavier man is removing his hoodie as he goes off screen on entering 320 Assiniboine.
[7] If my comparison of the video and Mr. Ibrahim in person and his time-of-arrest photograph were the only evidence on identity, it would be imprudent for me to found a conviction based on that evidence alone, but that is not this case.