Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Issa Niang

Before: Justice David M. Paciocco – Ottawa, ON

Counsel:

• Mr. H. Shouldice for the Crown
• Mr. M. Smith for Mr. Niang

Reasons for Decision

Released September 14, 2015

Decision

Introduction

[1] Even though a single incident on August 20, 2013 is alleged before me, Mr. Issa Niang has been charged with three counts of robbery contrary to section 344(1), and three counts of unlawful confinement, contrary to section 279(2). One count of each kind of offence is particularized as applying to each of the three victims, Aiden Mahoney, Ezra Jasmann, and Tarin Rogers. I say "victims" this early in my judgment because it is not disputed that these young men, young teenagers at the time about to enter the tenth grade, were robbed. What is in dispute is whether the Crown has proved that Issa Niang was the older taller robber described by these victims, and whether, if he was involved in the robbery, the victims were also forcibly confined, as alleged. On the evidence before me that older, taller robber identified himself during the robbery as "Convict," a detail that takes on significance to the Crown's case.

Identification Evidence: Legal Framework

[2] The Crown, of course, is obliged to prove that Mr. Niang is one of the robbers beyond a reasonable doubt. The Crown's effort to do so in this case is complicated by the fact that none of the three witnesses to the robbery purported to identify Mr. Niang in court. While dock identification is not necessary to prove identity where there is other evidence sufficient to do so (R. v. Nicholson (1984), 1984 ABCA 88, 12 C.C.C. (3d) 228, leave to appeal to S.C.C. refused 56 N.R. 234 n), the Crown is left to rely upon two pre-trial events where Mr. Rogers provided information that the Crown contends links Mr. Niang to the robbery, coupled with other circumstantial evidence.

[3] The first of those occasions occurred when Mr. Rogers discovered an internet photograph of Mr. Niang that he believed to be of the older, taller robber. On October 2, 2013, Mr. Rogers sent a cropped version of this photograph by email to the investigator, Det. Sylvestre, with the attending comment, "konvict is the one holding his wrist." During a police interview that I admitted into evidence, Mr. Niang clearly agreed that this is a photograph of himself.

[4] Although the comment captioning the photograph in Mr. Rogers' email is unequivocal, Mr Rogers' in-court testimony about this earlier identification was tentative. He said, "I was fairly certain that one of the people in the picture was the person who called themselves Konvict at the time I guess." He then said "there were many individuals in the photo so I thought I should just show the one close-up who I thought was Konvict or who definitely looked very similar to the one who called himself Konvict."[1]

[5] The second identification occasion relied upon by the Crown was when Mr. Rogers, while viewing a photographic line-up at the police station on October 29, 2013 wrote, "Similair [sic] to Konvict" on a photograph of Mr. Niang. Initially, when Mr. Rogers was confronted with Mr. Niang's photograph, he wrote "Number 11, no," which he had been advised to do if the subject was not the suspect. Mr. Rogers paused and then asked, "Should I say if they look similar though?" He then went on to explain why this person looked similar to the suspect before writing "Similair [sic] to Konvict." In his testimony in-court Mr. Rogers commented on his reaction to this photograph at the time of the line-up and said "yea he had similar characteristics," and he adopted this as his evidence at the trial and provided details about why he found the photograph to be similar to the suspect.

Resemblance Evidence

[6] The nature of the identification evidence the Crown is relying upon raises two preliminary legal issues. The first is whether Mr. Rogers' observations on the two occasions described can even be treated as "identification evidence," given that the first effort produced only a tentative opinion, and the second, a mere observation of similarity. Indeed, as a matter of law, the photographic line-up qualifies as "resemblance evidence." In R. v. Dodd, 2015 ONCA 286 at para 76 the Ontario Court of Appeal observed that "resemblance evidence has little probative value," and endorsed its earlier position expressed in R. v. Ryback 2008 ONCA 354 at para 121, leave to appeal refused [2008] SCCA No. 31 that "[a]s a general rule, a resemblance without more, does not amount to an identification."

[7] This does not mean, however, that "resemblance evidence" is worthless. The Dodd Court also reinforced the Ontario Court of Appeal's position from R. v. Boucher (2000), 146 C.C.C.(3d) 52 at para. 19 where it said that, "[i]n the absence of some other inculpatory evidence, a resemblance is no evidence." It follows that when resemblance evidence is accompanied by other inculpatory evidence, the resemblance evidence is admissible and can contribute to a finding, provided the judge recognizes resemblance evidence for what it is.

Tentative Identifications

[8] It necessarily follows that it is not fatal to the Crown's case that Mr. Rogers offered only a tentative identification of Mr. Niang when viewing his photograph on the internet. The entitlement of courts to rely upon tentative identifications is, in my view, a necessary corollary of the standard warning given to juries that the confidence level of the witness has only a tenuous relationship with the accuracy of the witness: R. v. Richards (2004), 186 C.C.C. (3d) 333 at para 33 (Ont. C.A.). This being so, the weight given to efforts to identify a suspect is to be determined by the judge, and not by the witness. To be sure, expressions of uncertainty by an eye witness must be considered, but they do not govern.

Reliability of Identification Evidence

[9] Ultimately, in evaluating any identification case a judge must always bear in mind the dangers inherent in a witness's opinions about the identification of suspects, however those opinions may be expressed. The trial judge should pay close attention to the reliability of identification evidence given the circumstances in which the suspect is initially viewed, and the circumstances at the time of the identification. A cautious approach to such evidence includes scrutinizing an opinion about identification for its frailties, and paying regard to potential suggestive influences: R. v. Candir 2009 ONCA 915, [2009] O.J. No. 5485 at para 109 (Ont. C.A.); R. v. Henry [2010] B.C.J. No. 272 (B.C.C.A.); R. v. Fengstad (1994), 27 C.R. (4th) 383 (B.C.C.A.). With these cautions in mind, what matters most is not the certainty expressed by the identification witness, but the quality of the identification information offered, in all of the circumstances.

Admissibility of Pre-Trial Identification Evidence

[10] The second preliminary legal issue that I need to attend to arises because none of the three victims identified the accused in-court. Because of this, a threshold issue arises about the admissibility of evidence about the pre-trial identification efforts made by Mr. Rogers that I have just described. This is because, although in-court or dock identifications generally have little probative value (R. v. A.F. (2004), 183 C.C.C. (3d) 518 at para. 47 (Ont.C.A.)), the absence of an in-court identification can undermine the admissibility of testimony relating to pre-trial, or out-of-court acts of identification. After all, out-of-court identification evidence is admissible not as hearsay evidence establishing identification in its own right, but as original evidence to enable the probative value of an in-court identification to be assessed in its full context. Specifically, the fact that a witness previously identified the accused, or gave a particular description, is data that can be useful in deciding whether to trust the in-court identification. If there is no in-court identification, the non-hearsay basis for admitting the previous acts of identification therefore disappears, making the fact that these prior acts of identification occurred irrelevant: R. v. Tat paras 31-40 (Ont. C.A.); and see R. v. Langille (1990), 59 C.C.C. (3d) 544 (Ont.C.A.), re prior descriptions.[2]

[11] In R. v. Tat, supra at para 41, however, the Court described one other situation where prior identification evidence could be admitted:

The second situation in which out-of-court statements of identification have been admitted arises where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did.

[12] The underlying admissibility theory for this branch of the Tat rule is that, even though the witness has not identified the subject in-court, their testimony confirming that they had previously identified the suspect, coupled with proof that on the occasion referred to the witness had identified the accused, permits an inference that the witness identifies the accused as the offender. There is no prejudice in proceeding in this way since the witness, who recalls and affirms the earlier identification, can be cross-examined about it: R. v. Tat, supra at paras 44, 51-52.

[13] Once again, when this branch of the rule is being used, the evidence is not hearsay: R. v. Starr, supra at paras 222-223. The witness is offering original evidence about having previously identified the suspect on a specific occasion. This, coupled with original evidence that the witness identified the accused on that specific occasion supports the inference described. Evidence of the prior identification by the witness can be given by the accused person, or by another person who was present at the time.

[14] Since this testimony comes in as original evidence, the Starr Court held that when other witnesses testify about earlier acts of identification by a witness, those other witnesses should confine themselves to the fact of the identification. Only the identification witness should offer testimony about the reasons for the identification, so that those reasons can be cross-examined.

[15] The reason the application of this second avenue for the admission of the prior identification evidence falls into issue in this case is that Mr. Rogers did not testify that he previously "gave an accurate description or made an accurate identification." As indicated, with respect to the two prior acts of identification, he gave a tentative identification on the first occasion, and offered a mere opinion about similarity on the second.

[16] In my view, the prior acts of identification by Mr. Rogers, even though equivocal, are nonetheless admissible pursuant to the second ground in R. v. Tat, supra. When the Courts in Tat and Starr spoke of the requirement that the witness must testify that they previously "gave an accurate description or made an accurate identification," it is my view that they used the term "accurate" to communicate that the witness must, in their testimony, affirm that they made the identification effort the Crown is relying upon. In effect, these decisions require the witness to testify that it is true or accurate that they engaged in an identification exercise, however definitive or tentative the results of that identification effort may have been. The Courts did not, in my view, seek to confine the rule to affirmations that the identification that was made is accurate, thereby excluding proof of the history of identification information in the case of more tentative identification attempts.

[17] I say this because the point of requiring an in-court affirmation of the "identification" before admissibility is not to winnow out more tentative conclusions. It is to permit the accused to cross-examine the witness who made pre-trial comments relevant to identification about the circumstances said to support those comments. A person who recalls the procedure can be cross-examined about those material circumstances, regardless of the quality of the identification they offer.

[18] Moreover, in R. v. Tat, supra, the Court cited the British case of Smith v H.M. Advocate [1986] S.C.C.R. 135 with apparent approval, even though that case involved proving the history of prior identification evidence relating to a qualified identification.

[19] I therefore find that the identification evidence relating to the Facebook identification and the photo line-up identification attempts is admissible, along with the testimony of Mr. Rogers explaining the reason for the conclusions offered by him. This case does not turn, therefore, upon rules of evidence. It turns on whether, in all of the circumstances, the identification efforts made by Mr. Rogers coupled with other circumstantial evidence establishes Mr. Niang's guilt beyond a reasonable doubt.

Credibility and Reliability of Mr. Rogers' Evidence

[20] I will begin by assessing whether Mr. Roger's testimony relating to identification is credible and reliable. I find his evidence to be both.

[21] In arriving at this conclusion I am mindful that there was testimony before me that, on its face, does raise credibility concerns. First, I find that Mr. Rogers, Mr. Mahoney and Mr. Jassman did initially lie to the police about why they were with the robbers. They said that they were accosted when going to De La Salle High School to meet friends, when in fact they had gone there to assist Mr. Jassman in selling marijuana to some unfamiliar buyers who had contacted him. This lie does not flatter the young men, but it is understandable, and Mr. Rogers was quick to admit to this lie in his evidence in-chief.

[22] Second, the evidence before me is that the three young men did discuss details they would include in their police statements before they filled those statements out. I am persuaded by their evidence, however, that this was not done to invent or create false information, but to ensure that they each told the police the important things they had all observed.

[23] In these circumstances, it was appropriate for counsel for Mr. Niang to concede that in his evidence Mr. Rogers was attempting to tell the truth. It was clear to me that Mr. Rogers was indeed trying to offer a full and frank account of events that day, including by volunteering personal information about his own difficulties at the time.

Opportunity to Observe

[24] My conclusion that Mr. Rogers was a reliable witness, offering dependable evidence about identification, rests on my conviction that, subject to one important caveat, Mr. Rogers had a strong opportunity to observe the older, taller suspect, and that he remembers well what he saw.

[25] I begin by recognizing that Mr. Rogers' opportunity to observe the subject was imperfect because the taller robber was wearing a hat, and, according to Mr. Rogers' uncertain recollection, may also have been wearing sunglasses. Mr. Rogers nonetheless had an excellent opportunity to observe the suspects dress, body type, and facial structure.

[26] Specifically, the event occurred in the daytime, in good lighting conditions. The men were in close proximity to one another, face to face, for a protracted period of time. Mr. Mahoney estimated that he and his associates were with the robbers for ten minutes. Mr. Jassman testified it took longer than one might think, and offered a less realistic estimate of "between 15 and 30 minutes probably." The event was no doubt stressful, to be sure, particularly with the younger, shorter robber pulling a knife, the utterance of a death threat, and the taller, older robber punching Mr. Mahoney in the throat area, striking his collar bone. Still, Mr. Rogers had a lengthy and meaningful opportunity to observe his assailants.

[27] In finding that Mr. Rogers had a good opportunity to observe the identity of the older, taller robber, I have considered that when offered the opportunity to make an in-court identification of the accused, Tarin Rogers said "Yes I have to say I cannot say for sure given that the individual at the time was wearing a hat and it is hard to see faces, I guess." This comment does not shake my confidence in the material observations that Mr. Rogers did make. First, I am persuaded from Mr. Rogers' demeanour when he came into the courtroom to attempt to identify the suspect after leaving the security of the video-linked ante room from which he gave his testimony, that Mr. Rogers was afraid. He was asked to stand face-to-face with the accused, and to identify him. I am convinced that Mr. Rogers' fear softened the confidence he would express. This, of course, does not convert his failure to identify Mr. Niang as the suspect into affirmative evidence of Mr. Niang's identity, but it does reduce the impact that Mr. Rogers' expression of self-doubt about his ability to observe had on me.

[28] In my view, a better gauge of Mr. Rogers' opportunity to observe the face of the taller, older suspect is the way Mr. Rogers responded when asked to explain the similarities between the photograph of Mr. Niang in the photographic lineup, and the older, taller robber. Mr. Rogers testified that the man depicted in the photograph "definitely [had] a similar facial structure in the cheek bones, lips, chin and nose. During the time of the incident that was really all I could see of the man's face because of the hat and sun glasses, yeah." In short, while Mr. Rogers did not see all of the subjects' face, he had secured a familiarity with the exposed facial features of the suspect that was far greater than that suggested by his explanation for not making an in-court identification.

Quality of Description

[29] Nor am I prepared to accept the defence submission that, because of the general nature of the description offered by Mr. Rogers of the suspect, he had observed little. Mr. Rogers' description was not "vague" as claimed. Mr. Rogers said of the older, taller robber in his police statement, "He was about six foot three skinny dark black had a resurrect[3] hat gold watch gold necklace and was muscular, about 19 years old." In this description Mr. Rogers offered significant detail about the stature of the suspect, and precise, albeit select information about his dress. In evaluating the quality of a description it is helpful, in my view, to remember that one of the reasons the law permits witnesses to offer an opinion that a subject is the suspect is the ability that individuals have to recognize others, coupled with their common inability to be able to translate their specific observations into meaningful words. I have no doubt that Mr. Rogers' failure to provide greater precision in his police statement is attributable to that, rather than to an inadequate opportunity to observe.

Memory Retention

[30] I am also of the view that Mr. Rogers remembered the details he conveyed in his testimony. The two months that passed before Mr. Rogers first attempted to identify the suspect in the robbery is a relevant factor, but I am confident that Mr. Rogers, a perceptive young man, was able to retain sufficient information to offer the identification information that he did. Mr. Rogers was quite prepared in his testimony to concede when he did not remember things, and his account of those things he does "remember" is confirmed in many material particulars by the other witnesses, including his description of the events and the general descriptions he offered of the suspects. I trust Mr. Rogers' ability to remember the things he purported to recall.

[31] In making this finding I am mindful that Mr. Rogers conceded that his chronic marijuana use at the time had affected his memory generally, and that he also said that he suffered from a "mood disorder" at the time that would sometimes cause him to "dissociate" in stressful situations. He later clarified that he could observe events when "disassociating," but that it was his emotional processing that would be affected.

Analysis of Identification Evidence

[32] This is not a case, therefore, where the lack of a foundation for subsequent identification challenges the Crown's ability to establish guilt, or where infirmities in the witness's testimony leave a reasonable doubt. The question is whether the testimony given by this witness, which I credit and find to be reliable, is sufficient in all the circumstances to identify Mr. Niang beyond a reasonable doubt, given that Mr. Rogers offered only an equivocal identification of Mr. Niang, followed by some "resemblance evidence." In my view it is. The evidence of Mr. Rogers, evaluated in context, leaves no reasonable doubt in my mind that Mr. Niang was the taller, older robber.

Consistency with Physical Description

[33] First, Mr. Rogers' pre-trial description of the suspect is entirely consistent with the appearance of Mr. Niang. While in his testimony Mr. Rogers initially recalled the suspect being "just under six feet, if not six feet, he was not too tall," in cross-examination he adopted the description he had provided to the police that the suspect was six feet three inches, which, as the Crown puts it, is "spot on" the height attributed to Mr. Niang in the Ottawa Police data bank. Moreover, Mr. Niang has the wiry build described by Mr. Rogers, "thin and muscular." Mr. Niang also has "definitely dark black skin colour" as described.

The "Rezarek" Hat

[34] Second, Mr. Rogers testified that the suspect was wearing a "resurrect" hat, with "resurrect" spelled very strangely. As indicated, on October 1, 2013, Mr. Rogers selected Mr. Niang's photograph from the internet and sent it to Det. Sylvestre. In that photograph Mr. Niang is wearing a black baseball hat, of the kind described by Mr. Rogers, with a "Rezarek" crest on the front of it.

[35] The way in which this photograph was discovered by Mr. Rogers is particularly significant. After the robbery, the victims returned to the Ottawa South area where Mr. Jasmann lived. They went to the home of a girl who had connections at De La Salle High School where the robbery had occurred, in an effort to seek assistance in identifying who had robbed them. She assisted them in using Facebook profiles to seek out possible suspects. Ultimately, the victims found one young man who "matched" the younger suspect, named Cam Ron Ali. According to Mr. Mahoney, they observed on Mr. Ali's Facebook page, a photograph of a person they thought could be Convict, but were not sure. On October 1, 2013, Mr. Rogers found Mr. Niang's photograph, sporting a "Rezarek" hat, not by random searching, but by working from this other suspect's Facebook page.

The "Konvict" Nickname

[36] Third, after Mr. Niang was identified as the suspect, Det. Sylvestre visited a public Facebook page that contained a photograph and the words "Issa Konvict (MK)."

[37] I am confident that the photograph depicted on that Facebook page is of Issa Niang. In coming to this conclusion I am not relying on the opinion of Det. Sylvestre to this effect, because the Crown failed to conduct a Behre voir dire before offering recognition evidence relating to an exhibited image, as required by R. v. Behre [2012] O.J. No. 5029 (Ont. C.A.). The photograph is of good quality and I am able to compare it myself, both to Mr. Niang as he appeared in court before me, and to the police line-up photo, following the guidance provided by Mr. Rogers. The Facebook profile picture "definitely" has "a similar facial structure" to Mr. Niang "in the cheek bones, lips, chin and nose." As pointed out by the Crown, the picture also bears the same pattern in the eyes, with the right eye being opened wider, and the left eye partially closed.

[38] The Facebook identification, "Issa Konvict (MK)," that attended Mr. Niang's photograph is significant because, as indicated, during the conversation that occurred during the robbery, the tall, older robber is reported by the witnesses to have identified himself as "Convict." Specifically, Mr. Mahoney, in testimony I accept, said that the taller, older subject said "I am Convict and this is why I am robbing you. You were on my block." Moreover, that Facebook page, which was admitted on consent, describes a significant link to "Rezarek," proclaiming "worked at Resarek" and listing "Rezarek" next to the residence symbol on the Facebook page.

[39] Given that the Facebook profile picture is Mr. Niang, and the fact that the page contains reference to Resarek, which Mr. Niang is linked to through his admissions relating to the cropped photograph in exhibit 5, as well as his admission during the police interview that people do call him "Convict," I am satisfied on the balance of probabilities that this informative Facebook page belongs to Mr. Niang. That is the natural inference in all of the circumstances, and there is no evidence to the contrary.

[40] The evidence linking Mr. Niang to the nickname "Konvict," however it is spelled, is again, particularly significant. I am satisfied that this is an uncommon nickname. Det. Sylvestre conducted a search of the Ottawa Police Service data bank and found only three persons who use that nickname, two white subjects who spelled "Convict" with a "C," and Mr. Niang.

Corroborating Physical Details

[41] It is noteworthy that the two internet photographs bear other characteristics included in Mr. Rogers' description. In addition to the Rezarek hat, Mr. Rogers described "Convict" as wearing a black shirt and black pants. This is similar to the clothing depicted in the cropped photograph. Moreover, he said that "Convict" was also wearing a gold watch and a gold necklace. Both photographs show Mr. Niang wearing a gold necklace, and the Facebook profile has him sporting a gold watch on his right wrist, which is covered by his hand in the cropped photograph.

[42] Finally, it is also noteworthy that, with the exception of Mr. Jassman's height estimate, Mr. Niang fits the descriptions offered by Mr. Mahoney and Mr. Jassman. The photographs also show Mr. Niang wearing a gold bracelet, as described by Mr. Mahoney, as well as silver earrings, chin hair and short hair of the kind described by Mr. Jassman.

Consideration of Dangerous Features

[43] I have turned my mind to the dangerous features of Mr. Rogers' evidence, including that the suspect Cam-Ron-Ali site was discovered by the men in consultation, and that Mr. Rogers initially selected Mr. Niang's cropped photograph, in part, because of the hat. I am also aware that finding a subject on the internet wearing Rezarek wear was suggestive. I am not, however, left in any reasonable doubt by Mr. Rogers albeit tentative identification evidence, understood in context.

Conclusion on Identification

[44] In sum, for Mr. Niang to be innocent I would have to accept the possibility that, by coincidence, an innocent Mr. Niang happened to be linked to the other suspect, Mr. Cam-Ron-Ali's website; that by coincidence, when he identified Mr. Niang as the person he believed to be responsible, Mr. Rogers selected a young man who had recently lived in the area of the robbery and knew the Ali family who also lived in the neighbourhood; that by coincidence, Mr. Niang, who matches the descriptive features offered by the witnesses, including height and body type and skin tone, happened to have a Rezarek hat of the kind worn by the taller, older robber; and that by coincidence, he happened to go by the same rare nickname, "Konvict," used by the taller, older robber.

[45] As indicated, I am persuaded by the unreasonable improbability of coincidence that Mr. Rogers was much better at identifying the suspect than he believed, and that suspect is Mr. Niang. I am therefore finding Mr. Niang guilty of each of the three counts of robbery.

Unlawful Confinement

[46] I am also persuaded that Mr. Niang is guilty of three counts of unlawful confinement. In R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.C.A.), leave to appeal to S.C.C. refused [1985] 1 S.C.R. viii, the Ontario Court of Appeal adopted the following definition of the actus reus of "unlawful confinement," contrary to section 279(2):

[A] … physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physical application of bindings.

By virtue of subsection 279(3), the failure of the victim to resist is no defence, unless the accused proves, on the balance of probabilities, that the failure to resist was not caused by threats, duress, force or exhibition of force.

Actus Reus

[47] There is no question that Mr. Rogers, Mr. Mahoney and Mr. Jasmann were each deprived of their liberty to move from one place to another against their will. As indicated Mr. Mahoney estimated that he and his associates were with the robbers for ten minutes and Mr. Jassman testified that it took at least that long. While the three young men agreed to enter the secluded area behind a hedge to transact a marijuana sale, they did not enter with the intention of remaining there for ten minutes or so while being threatened verbally, and with a knife, and directed to hand over their belongings. It is obvious they did not remain there willingly during the robbery. Not surprisingly, each of the young men expressed in their testimony that they felt that they had to remain. This was a reasonable perspective for them to take, including because the large group of young men who were associated with Mr. Niang and the shorter, younger man with the knife, were standing outside the exit through the hedges. Whether those men were complicit does not matter. All of the immediate participants knew these additional young men were there, and their presence was intimidating in a way that would further discourage any attempt to leave.

[48] The actus reus of the offence of unlawful confinement is therefore made out.

Mens Rea

[49] The mens rea of the offence is not defined expressly in the Criminal Code. Basic principles of law require, however, that for "true crimes" such as unlawful confinement, a subjective mens rea is to be presumed absent a clear indication that an offence can be prosecuted based on objective fault: R. v. DeSousa, [1992] 2 S.C.R. 944 at 956; R. v. Kerr 2004 SCC 44, [2004] 2 S.C.R. 371 at para 78. There is no indication here that one can commit unlawful confinement by negligence.

[50] Where subjective mens rea is left to be presumed, the Crown must prove that the accused intended or was reckless as to any of the consequences set out in the offence, and the Court must be satisfied that the accused knew or was wilfully blind to the factual conditions required before an offence occurs: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont.C.A.); R. v. Theroux, [1993] 2 S.C.R. 5[4]

[51] To convict of the offence of unlawful confinement a Court must therefore be satisfied beyond a reasonable doubt that the accused intended or was reckless as to whether physical control was being assumed over the movements of the victims, and must do so with knowledge or wilful blindness that this was contrary to the wishes of the victims.

[52] I have no doubt, on the evidence before me, that Mr. Niang had the requisite mens rea. Mr. Niang and his shorter, younger associate directed things during their joint enterprise. The robbery occurred as they intended, including by confining the three victims without lawful authority so that their possessions could be taken in seclusion, and without the victims leaving. Mr. Niang and his associate intended to assume control over the movements of the victims, contrary to their wishes, and they were fully aware that the victims were submitting unwittingly, thereby losing their liberty to move from one place to another.

Verdict

[53] In all of the circumstances, I am finding Mr. Niang guilty of three counts of robbery contrary to section 344(1), and three counts of forcible confinement contrary to section 279(2), one count of each offence for each of the named victims.

Dated at Ottawa this 14th day of September, 2015

Justice David M. Paciocco

Footnotes

[1] I have spelled "Convict" with a "K" since this is how Mr. Rogers spelled it in his October 1, 2013 email message to Det. Sylvestre.

[2] But see R. v. Starr 2000 SCC 40, [2000] S.C.J. No. 40 where the Court endorses R. v. Tat, supra, but nonetheless describes this particular rule as the "the prior identification exception" to the hearsay rule.

[3] During his evidence, Mr. Rogers identified a hat bearing the stylized spelling "Rezarek," as similar to the hat worn by the assailant. I did not view Mr. Rogers' police statement to confirm how he spelled "resurrect," and am therefore ascribing the usual spelling to capture the oral testimony I heard. I make no finding, one way or the other, in terms of how Mr. Rogers spelled the word in his statement.

[4] The physical actions of the accused must also be "voluntary," although voluntariness is presumed to be present and is generally considered to be a component of the actus reus, not the mens rea: R. v. Stone, [1999] 2 S.C.R. 290.