Court File and Parties

Date: November 8, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Farah Handule and Michael Mensah

Before: Justice Sandra Bacchus

Ruling on Committal for Trial

Counsel:

• P. Clement for the Crown
• F. Lyons for the Defendant (Handule)
• S. Agbakwa for the Defendant (Mensah)

Bacchus J.

Introduction

[1] On March 3, 2016, a home invasion robbery took place at 11 Shoreham Court Unit 26 in the City of Toronto. Trong Nguyen and Thuy Hoang were living in this residence along with their two young children. The residence is part of a complex of townhouse units.

[2] At approximately 10:30pm, Mr. Nguyen was standing outside the rear door of his home, smoking a cigarette when he was accosted by three men. Mr. Nguyen testified that a gun, approximately 8 inches long, was pointed at him by one of the robbers while a second assailant displayed a larger gun which he held diagonally across his chest under his coat. Mr. Nguyen estimated the length of this gun at 18 inches.

[3] The robbers demanded $10 and subsequently pushed Mr. Nguyen into his residence. Two of the three assailants entered the home while the third individual stood outside by their door. One of the assailants demanded a further $100 from the victims. A gun was pointed at Ms Hoang; threats were made. Ms Hoang complied with the demand and turned over the money.

[4] In addition to the money, the assailants took 6 containers of chocolate milk from the kitchen and Mr. Nguyen's Samsung phone. One of the assailants ran upstairs to look for jewellery.

[5] Terrified for herself and her children who were sleeping upstairs, Ms Hoang rushed out of the rear door of the residence to a neighbour's house for help, somehow getting by the third assailant who was standing by the doorway. Mr. Nguyen followed her, and the three assailants fled in the opposite direction.

[6] The issue for determination is whether there is some evidence upon which a jury reasonably instructed could find that the defendants were the individuals who perpetrated this home invasion robbery.

[7] In analysing the evidence and the reasonableness of the inferences sought by the crown in this case I am mindful of the following fundamental principles in determining the sufficiency of evidence and the proper exercise of the jurisdiction of the preliminary inquiry judge:

A. That the test for committal requires that where there is direct evidence adduced on all elements of an offense the case must go to trial even if a defense exists on the evidence. R. v. Sheppard (1977), 2 S.C.R. 1067;

B. That with regards to circumstantial evidence, I may engage in a limited weighing of the evidence but this weighing of evidence does not apply to issues of credibility; and where credibility issues arise they should be left to be resolved by the jury. R. v. Arcuri (2001) 2001 SCC 54, S.C.J. No. 52 (S.C.C.);

C. That the task of "limited weighing" does not mean considering the inherent reliability of the evidence itself but instead is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. Arcuri, supra, para. 30;

D. That a preliminary inquiry judge is not to discount the availability of reasonable inferences based on an absence of evidence. R. v. WardJackson, 2016 ONSC 4574 at para. 54.

E. That where reasonable inferences capable of supporting the crown's theory are available on the evidence, whether direct, circumstantial or a combination of both, the case must be left to the trier of fact to consider that evidence. It is not for this court to engage in assessing the quality and reliability of the evidence or any possible defense. The crown's case is to be taken at its highest at the preliminary inquiry stage. R. v. Charemski (1998), 123 C.C.C. (3d) 255 S.C.C.; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.).

Analysis

Description of the Robbers

[8] The home invasion was captured on surveillance video. (Exhibit 4).

[9] Consistent with what is apparent from the surveillance video the victims testified that there were three robbers all wearing dark clothing and winter jackets.

[10] The victims described the three individuals as black and that they were all similar in shade although the taller one who was holding a small gun may have been darker than the other two.

[11] This suspect who I will refer to as suspect 1 was described as approximately 6 feet tall, taller and chubbier than the other two perpetrators, about age 25, wearing jeans and a jacket that was possibly thick.

[12] Ms Hoang testified that suspect 1 had on a hoodie with two pockets in the front and something which was covering his face and that he was wearing a black article of clothing on his upper body.

[13] Suspect 2, the individual holding the large gun and who entered the home with suspect 1, was described by the victims as skinnier than suspect 1.

[14] Ms Hoang testified that this suspect was wearing a grey jacket.

[15] Suspect 3, who remained outside the residences was also described as skinnier than suspect 1 and wearing dark clothing.

[16] Suspects 2 and 3 were described by the victims as not as tall as suspect 1.

[17] Mr. Nguyen testified that none of the robbers had a beard or wore glasses or had pants with big white letters or numbers or designs on them, and there were no bright or white colours and he did not see any brand names. Mr. Nguyen testified that he believed all three individuals were wearing jeans.

[18] Officer Nitin Sedhev testified that he and officer Dominey reviewed the surveillance video from the Shoreham complex from 11:52pm to 1:20am. In doing so officer Sedhev testified that he was able to discern the route taken by the three suspects as they travelled through the Shoreham complex arriving at Unit 11-26 at approximately 10:50pm, then committing the robbery, fleeing the scene, and running into the rear of Unit 1-2 Shoreham court shortly after committing the robbery.

[19] Officer Nitin Sedhev testified that one suspect can be seen wearing all black with a hood up and his hands in his pockets. Officer Sedhev describes this individual as heavy set and wearing what he describes as a black winter jacket.

[20] Although there may be some controversy in the evidence as to whether the jacket worn by this suspect is black or grey for the purposes of the preliminary inquiry I accept the crown's evidence at its highest on this point.

[21] Officer Sedhev described, and it is apparent upon reviewing the footage, that a second suspect was wearing all black pants with a white area on both the left and right front pant legs discernible at different times throughout the footage. In addition this same suspect was wearing white gloves.

Evidence Tracing the Route of the Robbers

[22] There is both direct and circumstantial evidence that the three robbers who fled the scene of the robbery entered 1 Shoreham court unit 2 located at the other end of the complex. According to the evidence of Officer Sedhev based on his review of the surveillance footage the robbers ran into the rear door of 1-2 seconds after the robbery.

[23] Further, M.P. who was arrested as he exited the front door of unit 1-2 at 4:30am, plead guilty and admitted that he was one of the assailants involved in the robbery of an Asian couple at Shoreham and that at the time of the robbery he had a pellet gun and took $100.00 from the victims, a phone and some cartons of chocolate milk.

[24] The clothing M.P. was wearing at the time of his arrest, grey hoodie, faded jeans and running shoes with white markings, as well as his stature is similar to suspect 2. Further, at the time of his arrest there is some evidence that M. P. was in possession of the battery from Mr. Nguyen's phone.

[25] In addition, cartons of chocolate milk similar in quantity and in the basic description provided by the victims were located in a number of areas through Unit 1-2.(Exhibits 12a to d)

[26] There is a reasonable inference arising from the totality of this evidence that the cartons of chocolate milk found in unit 1-2 was stolen property taken from the earlier robbery at unit 11-26.

[27] There is a further reasonable inference which arises from the totality of the evidence including: M.P.'s admission regarding his involvement in the robbery, M.P.'s overall stature at the time which appeared thin, and the clothing that M.P. was wearing upon his arrest, that M.P. is suspect 2.

Identification Evidence – Michael Mensah

[28] Mr. Mensah was arrested exiting the rear door of 1-2 in the company of his mother at approximately 4:30am.

[29] At the time of his arrest Mr. Mensah was described by the police as 6 foot 1 or 6 foot 2 inches tall, heavier set, wearing a black hoodie, a white t-shirt underneath, and black sweat pants with the word Jordan in dark block lettering running from the shin to the ankle area towards the side of the left pant leg. Mr. Mensah was also described as wearing black running shoes. Exhibits 10a to c are photographs of Mr. Mensah taken following his arrest.

[30] Officer Sedhev testified that Mr. Mensah was much thicker than the others who were arrested with him at the time (eleven people) who were all very thin.

[31] Mr. Mensah was not wearing a winter coat when he was arrested nor is there any evidence that a coat was located in unit 1-2.

[32] The crown submits that there is some evidence that Mr. Mensah was one of the robbers who committed the home invasion based on the similarity in his appearance with suspect 1, and that he was the tallest and biggest built individual arrested coming from unit 1-2 at approximately 4:30am, and that the surveillance evidence that shows the three robbers entered Unit 1-2 after the robbery.

[33] The crown further submits that there is some evidence that Mr. Mensah was in recent possession of the stolen chocolate milk such that there is a reasonable inference that he was involved in the earlier robbery.

Identification Evidence – Farah Handule

[34] Mr. Handule was arrested with a group of 11 people which included M.P. exiting the front door of unit 1-2 at approximately 4:34am. At the time of his arrest Mr. Handule was wearing black pants with two areas of white design on the front of each thigh. On the right side there were three horizontal lines across the thigh area with a pronounced number '99' underneath. On the left side was a large white patch which covered a portion of the left side thigh and was comprised of letters and numbers inside the white patch.

[35] Mr. Handule was also wearing a winter jacket with pronounced fur around the hood, as well as all black shoes. Mr. Handule was not photographed wearing glasses however Officer Sedhev testified that he had often encountered Mr. Handule in unrelated matters and had only known of one occasion when he was not wearing glasses. Officer Sedhev could not say if Mr. Handule's glasses had been removed for the purpose of taking his photo upon arrest. (Exhibit 11a and b)

[36] I take the evidence of the crown at its highest at the preliminary inquiry and find that there is a reasonable inference that Mr. Handule was not wearing glasses when he was arrested.

[37] Mr. Handule was not wearing white gloves nor were any white gloves found in unit 1-2. There is no evidence of Mr. Handule's actual height and weight at the time of his arrest.

[38] The crown submits that there is some evidence that Mr. Handule was one of the robbers who committed the home invasion based on the similarity in his appearance with suspect 2; namely: that he is his thinner in build than suspect 1 along with the distinct similarity in the pattern of the pants worn by Mr. Handule at the time of his arrest to that of suspect 2.

[39] This evidence coupled with the surveillance evidence which shows the three suspects enter Unit 1-2 after the robbery, is some evidence, the crown submits, upon which a jury reasonable instructed could find that Mr. Handule was one of the robbers from the earlier home invasion.

Legal Principles

[40] In R. v. Boucher, (2000), O.J. No. 2373, the defendant was seen running into a hotel wearing black tearaway pants with a white stripe down the leg proximate to the time a bank robbery had occurred. The individual who had robbed the bank was described as wearing black tearaway pants but with no stripe.

[41] The Court found that the crown's case depended on the nexus between the description of the tearaway pants worn by the robber and the clothing worn by the defendant. Although these items of clothing resembled, the court held they did not match and as there was no other inculpatory identification evidence, the similarity in the description of the pants was insufficient evidence of identification:

In view of the dissimilar features of the pants there was no identification merely resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence. If there were other inculpatory evidence it may be that a trier of fact would have good reason for finding that the customer's testimony was unreliable. Since there was no other evidence the dissimilarities at worst renders the resemblance of no probative value and possibly stands as an exculpatory feature. Boucher, supra para.19

[42] In R. v. Gibbs, [2001] O.J. No. 479, the defendant was seen by a detective named Chase driving the same car used by a drug dealer to sell drugs but in a different part of the city. Both the defendant and the drug dealer were described as male blacks, both wearing hats one of which was described as light brown and the other grey. They both wore light coloured jackets, one of which was described as beige.

[43] Surveillance officers obtained a license plate from the drug dealer's vehicle and followed it, however the surveillance officers did not have observations of the vehicle at all times and surveillance was disengaged. Approximately half an hour later an officer was detailed to stop the vehicle bearing the license plate number associated to the target vehicle.

[44] On the issue of the identification evidence the Court found:

The fact that Chase's man and the accused were black males, one with a light brown kangaroo hat and a light coloured jacket and the other a grey Kangol hat and a beige jacket is no evidence of identification. The lack of any evidence of any personal or physical characteristics of Chase's man other than his gender and colour, coupled with the dissimilarity of hat colour, does not even add up to evidence of resemblance let alone evidence of eyewitness identification. Gibbs, supra para 20.

Findings

[45] There is no evidence that either Mr. Mensah or Mr. Handule was in actual or constructive possession of the chocolate milk.

The chocolate milk found in the residence was located in common areas of the unit. Mr. Mensah and Mr. Handule were arrested leaving the unit. There is no evidence which links them to any of the areas where the chocolate milk was found or to the residence as a whole, such that a reasonable inference is available that either defendant had knowledge or exercised a measure of care and control of the residence. There is no evidence from which an inference of possession of the chocolate milk which could support evidence of identification.

[46] With respect to potential identification evidence incriminating Mr. Mensah, the description of suspect 1 provided by the victims and apparent from the surveillance footage is a general one. There is nothing unique in the clothing described in relation to suspect 1 and the description of this suspect as big, tall or chubby is generic.

[47] There are a number of similarities between the appearance of suspect 1 and Mr. Mensah as well as some dissimilarities.

[48] Mr. Mensah at the time did appear to have a big build; Mr. Mensah was wearing dark clothing which included a hoodie. At approximately 6 feet tall Mr. Mensah's height is consistent with the description of suspect 1 as tall; Mr. Mensah's shoes were dark with minimal light/white decal potentially consistent with the shoes worn by suspect 1.

[49] There were however dissimilarities in the description of Mr. Mensah to suspect 1. Suspect 1 was described as having no beard whereas the evidence of Officer Sedhev is that Mr. Mensah had a beard and sideburns at the time of his arrest.

[50] Suspect 1 was described as wearing a winter jacket, whereas Mr. Mensah was wearing no jacket at the time of his arrest; suspect 1 was described as wearing a hoodie with two pockets in the front whereas Mr. Mensah is described by officer Sedhev as having no pockets on the front of his clothing.

[51] Suspect 1 can be seen wearing a white shirt which appears longer than the dark piece of clothing worn over top whereas Mr. Mensah's white T-shirt did not extend below his dark sweatshirt.

[52] Mr. Mensah is wearing pants that have the word Jordan appearing just above the ankle of one leg in bold dark letters. There is no evidence that this marking is observed by the victims or apparent from the surveillance footage.

[53] Some of these distinguishing features in the identification of suspect 1 and Mr. Mensah may certainly be attributed to the inability of the victims to have the opportunity to make these observations. It was dark, the victims were clearly frightened and testified they did not want to look at the robbers' faces understandably.

[54] That being said, in my view the subjective and generalized nature of the description of suspect 1 in relation to Mr. Mensah's appearance at the time is evidence which amounts at most to resemblance evidence. There was nothing unique in this individual's height or build which could be inferred as uniquely attributable to Mr. Mensah.

[55] In the instance of resemblance evidence, other confirmatory evidence of identification is necessary to meet the sufficiency threshold required. (Boucher supra, Gibbs, supra)

[56] The crown submits that this other confirmatory evidence arises from the reasonable inferences available given Mr. Mensah's presence at unit 1-2, where the robbers were seen to have entered after the robbery and his comparative stature to the other individuals detained at this address at approximately 4:30am.

[57] However, I find that the gaps in the surveillance of unit 1-2 and the lack of temporal connection between the robbers entering that unit and Mr. Mensah being found there do not permit such inferences.

[58] Officer Sedhev testified that he and officer Dominey reviewed the surveillance footage covering the area of the rear of this unit from the time of the robbery, 10:50am to 1:20am and determined that no one entered or exited the unit from the rear door during this time period. Further, there is evidence that officers were physically posted at the rear door from 1:20am until the occupants began to exit from the rear at 4:30am.

[59] However there were no surveillance cameras on the front door of the unit and the testimony regarding when the police commenced surveillance at the front of the home actually was vague.

[60] Officer Sedhev testified that he detailed an officer to watch the front of the residence shortly after 1:20am. He testified that this individual was officer Kent and that he, officer Sedhev subsequently took up the watch from officer Kent and was then himself relieved by officer Censoni.

[61] I did not hear evidence from Officer Kent regarding his or her observations of the front door of the residence and when these observations actually commenced, nor did Officer Sedhev recall when he began watching the front of unit 1-2. Nor did officer Censoni have any notes or any recall regarding when he began watching the front door of the residence only that it was sometime before 3:07am.

[62] Even if there had been evidence before me that there was police surveillance on the front door of the residence at 1:20am there still remains approximately two and a half hours between 10:50pm and 1:20am where there is no evidence of the comings and goings of any individuals from the front door of the residence.

[63] This is a gap in the evidence which cannot be bridged. There is no evidence that the group of 11 or more people the police encountered at the residence at 4:30am is the same group that was present when the robbers entered the residence or that the group remained static. This means further that there is no evidence that the robbers, save and except M.P., remained in the residence until the arrests at 4:30am. Further, it means that comparing the defendant's build and general clothing descriptions to the group present at 4:30am, does not yield confirmatory evidence of the identification of Mr. Mensah as one of the robbers.

[64] Also, given that there is no temporal connection between the presence of the defendant at the residence to the time the robbers ran into the residence, it is speculative to infer that the defendant was one of the perpetrators.

Identification Evidence – Mr. Handule

[65] There are similarities between the description of suspect 3 and the description of Mr. Handule at the time of his arrest.

[66] Both individuals were wearing dark winter jackets and dark pants with white markings on the front of the pant legs; both appear to have slim builds.

[67] There are dissimilarities as well.

[68] Suspect 3 was wearing white gloves whereas Mr. Handule was not wearing white gloves and no white gloves were located in the residence. Mr. Handule's court is fur lined around the hood. Officer Sedhev testified that the hood of the coat worn by suspect 3 did not have fur lining and further that Mr. Handule's coat appears shorter than the length of coat worn by suspect 3.

[69] The potential uniqueness of Mr. Handule's black pants with the white letters and numbers on the front could in my view have been enough to elevate the resemblance evidence to identification evidence had there been other confirmatory evidence of identification.

[70] For example, evidence of specific lettering or design on suspect 3's pants which matched the wording on Mr. Handule's pants may have elevated the resemblance evidence. Unfortunately all that can be discerned from the surveillance footage is two apparent white areas on the upper thigh of each leg of this suspect's pants; any designs or letters or numbers or specific characters if they are there, cannot be seen.

[71] It is clear from the photos of the other arrested parties that none of those individuals were wearing pants which resembled the potentially unique appearance of Mr. Handule's pants. However there is no evidence that the white patches on black pants worn by Mr. Handule and seen on suspect 3 are somehow rare or unique.

[72] Further, like the evidence in relation to Mr. Mensah there is no evidence that all of the robbers remained in 1-2 after they ran in, or to put it another way, that the group of individuals who were present in unit 1-2 when the police investigated them at 4:30am is the same group that was present when the three robbers entered the residence.

[73] As such evidence comparing Mr. Handule to the stature and clothing of others present in the residence in an effort to eliminate others and isolate him as a perpetrator of the robbery is speculative.

[74] Further there is no temporal connection between the time the robbers entered 1-2 at 10:50pm and Mr. Handule's discovery at that unit at 4:30am.

[75] As such I find it would be speculative to infer in the circumstances that any evidence of similarities between Mr Handule and one of the robbers amounts to identification evidence upon which he may be committed for trial.

[76] I am not to weigh evidence and certainly the observations I am about to make do not factor into my final determination of the sufficiency of evidence of identification. But there is overwhelming evidence that the robbers did not remain in unit 1-2 throughout the entire time.

[77] There were no coats or white gloves found in the residence, nor were any guns located. Further M.P. testified that he went to a creek behind the Shoreham complex and disposed of his gun. At least 11 people were coming out of the residence at approximately 4:30am. Officer Beaulac testified that a taxi pulled up sometime after 3:25am to the front of the residence and two women came out of the residence and were subsequently detained by the police.

Conclusion

[78] Six hours following the home invasion robbery that occurred at 11 Shoreham unit 26, the defendants were arrested coming from or while inside unit 1-2 at the other end of the Shoreham townhouse complex. The police had a more than ample basis to be suspicious of the occupants of unit 1-2 given surveillance footage clearly showing the three perpetrators entering the unit after the robbery.

[79] However there is an absence of evidence regarding the ins and outs of that residence from the time of the robbery until the arrests of the occupants.

[80] The gaps in the evidence regarding people moving in and out of that residence coupled with the lack of temporal connection between the arrests and the home invasion do not allow for reasonable inferences which could possibly elevate the resemblance evidence of the defendants to evidence from which a reasonable inference is available that these defendants perpetrated the home invasion robbery.

[81] Given that such an inference would be speculative at best considering the totality of the evidence before me, I find that there is no evidence upon which a reasonable jury properly instructed could convict the defendants.

[82] Accordingly both Mr. Mensah and Mr. Handule are discharged on all counts.

Date: November 8, 2016

Signed: Justice Sandra Bacchus