Court File and Parties

Ontario Court of Justice

Date: May 3, 2017

Court File No.: Central East Region: Newmarket Court 4911-998-15-03103/15-03104/15-03135/15-03136

Between:

Her Majesty the Queen

— and —

Ahmed Rashid Ahmed, Mbarouk Ahmed, Samir Ahmed

Before: Justice Peter C. West

Heard on: October 3, 12, 13, 14, 17, 18, 2016; January 5, 2017

Reasons for Judgment released on: May 3, 2017

Counsel

M. Ventola — Counsel for the Crown

T. Sarantis — Counsel for the defendant Mbarouk Ahmed

S. Pashang — Counsel for the defendant Ahmed Rashid Ahmed

A. Barnes — Counsel for the defendant Samir Ahmed

Introduction

[1] Mbarouk Ahmed and Ahmed Rashid Ahmed are charged on February 4, 2015 with robbery with a firearm, contrary to s. 344(1)(a) of the Criminal Code; with intent to commit robbery with a firearm, have their faces masked by means of a scarf, contrary to s. 351(2) of the Criminal Code; and possession of property, namely money of a value not exceeding $5000, knowing all or part of the said property has been obtained by an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code.

[2] Samir Ahmed and Ahmed Rashid Ahmed are charged with possession for the purpose of trafficking cocaine, contrary to s. 5 of the Controlled Drugs and Substances Act, and possession for the purpose of trafficking cannabis (marihuana), contrary to s. 5 of the Controlled Drugs and Substances Act.

[3] On October 3, 2016, a trial commenced on all charges set out above. Each accused was charged on separate Informations; however, all counsel agreed and consented to the trial proceeding as one trial for all three accused.

[4] At the commencement of the trial the Crown withdrew the robbery, disguise with intent and possession under charges facing Samir Ahmed and the possession for the purpose of trafficking, cocaine and possession for the purpose of trafficking, cannabis (marihuana) facing Mbarouk Ahmed.

[5] At the conclusion of the evidence on January 5, 2017, the Crown requested that the charge of disguise with intent facing Mbarouk Ahmed and Ahmed Rashid Ahmed be dismissed.

[6] On January 5, 2017, it was determined and agreed that counsel would provide written submissions and the matter would be adjourned to May 3, 2017 in Oshawa Court.

Factual Background

[7] On February 4, 2015, The Source retail electronics store, located at 3987 Highway 7 East, Markham, Ontario, was alleged to have been robbed at gunpoint. Miresh Gnaneswaran was the sole employee working that day. He could not recall what time he arrived at work that morning. An individual entered the store holding two signs and a gun, which he had at his hip pointing at Mr. Gnaneswaran. He had on a winter coat and a scarf around his face and told the clerk to lock the doors and put up the two signs on the front and back doors.

[8] Mr. Gnaneswaran was tied up in a back storage room with plastic ties and blue tarps were put up on the windows of the store. His jacket was put over his head so he could not see what was happening. The plastic ties were later cut and Mr. Gnaneswaran was forced to assist the individuals put items from the store into a U-Haul truck. He was given a clipboard to make it appear the items being put in the U-Haul truck was legitimate. Mr. Gnaneswaran was also instructed to disable or take down the video cameras in the store. Mr. Gnaneswaran heard two or three different voices.

[9] Mr. Gnaneswaran was never able to see the perpetrators' faces as their faces were covered with scarves. At some point Mr. Gnaneswaran was punched in the back of his head and his body. He was also kicked in the ribs. He did not remember how many times and he was not injured. The doctor told him he had no bruises from the punches or kicks. He did have a small bump on the back of his head.

[10] Big blue Rubbermaid boxes were used to put electronic items into. Mr. Gnaneswaran was retied with plastic ties when the men left. He eventually was able to free himself and call 911. Police came. The tarps were on the floor of the store. Mr. Gnaneswaran was taken to the hospital. He was bleeding from his wrist because of the plastic ties when he was trying to get free.

[11] He denied knowing any of the accused. He did not know a telephone number 647-289-6374. He does not have a cousin named Sundip. A tape recording was played for Mr. Gnaneswaran by the Crown. The audio recording had two male voices and one female voice. He denied one of the male voices was his voice.

[12] Mr. Gnaneswaran testified he could tell the men in the store had brown skin. His height is 5 feet seven inches and the men were all taller than he is.

[13] In cross Mr. Gnaneswaran agreed the store was in the process of product optimization, which involved packing up electronic items in their store to be shipped to other stores. He was told the day before the robbery, February 3, 2015, by his manager the product optimization was going to start the following week. As a result boxes were being packed up to be moved to other stores.

[14] He agreed there were other stores in the plaza, next door was a Pet Value store and there was a security guard patrolled to make sure everything was okay. Mr. Gnaneswaran remembered speaking to the security officer, who was Asian, that day during the robbery. He did not recall saying to the security guard, "What are you doing here?" He did not recall what he said but he did recall talking to him. Mr. Gnaneswaran also remembered seeing the Pet Value clerk while the men were putting items and boxes into the truck.

[15] He told the police the men were wearing gloves. He thought the gun was a real gun.

[16] Mr. Gnaneswaran testified he was asked to assist them load the U-Haul truck with items from The Source. He helped move a TV in a box onto the truck. He gave a store uniform, a shirt, to the first guy who came in the store. He thinks the other two guys also put on store shirts.

[17] Mr. Gnaneswaran denied the voice in the audio recording was his voice. He agreed it seemed this person was talking about the robbery at The Source. Initially Mr. Gnaneswaran testified he had never heard of gun referred to as a "burner" but later in cross he testified he had heard of this. He does not know of anyone by the name Sundip or Sanjeev. He agreed the person on the audio recording appeared to be someone employed by The Source and is concerned about losing their job. Mr. Gnaneswaran testified he was not concerned about losing his job because he had not done anything wrong.

[18] Approximately $76,000 of electronics goods were taken from The Source store. The items taken are set out in an Agreed Statement of Fact, Exhibit 5 and Exhibit 5A, Appendix A.

[19] The blue tarps used in the robbery were 20 by 10 in size with grey plastic on one side and blue plastic on the other side. They had black grommets, which is an identifier according to DC Moore. DC Moore searched the internet and found a similar tarp sold by Walmart and he attended the Aurora Walmart and discovered in the sporting goods department tarps made by Ventura, which were consistent with the tarps used in the robbery. On February 17, 2015, DC Moore attended the Walmart in the Dufferin Mall, which is quite close to 105 Denison Avenue and found the same Ventura blue/grey, 20 x 10 tarps with black grommets being sold. A surveillance video from February 1, 2015, shows an individual purchasing blue tarps from the Walmart in the Dufferin Mall. Dufferin Mall is located near the intersection of Dufferin and Bloor, in Toronto.

[20] DC Moore also attended the Dollarama in the Dufferin Mall and found that this store sold white zip ties. The surveillance video in this store had already been recorded over when DC Moore attended to determine if anyone had purchased white zip ties at this store around the time the blue tarps were purchased.

[21] DC Moore also attended a U-Haul rental facility located at 2950 Kennedy Road. The U-Haul truck was rented by Ahmed Rashid Ahmed. The name, birthdate, address, driver's license number and contact information matched the same information for the accused Ahmed Ahmed. The phone number referred to is 647-702-7173. The U-Haul was rented on February 3, 2015 at 2:21 p.m. and returned on February 4, 2015 at 1:36 p.m.

[22] On February 18, 2015, DC Moore also attended the U-Haul depot at a Daisy Mart at 2950 Kennedy Road to pick up a specific U-Haul truck, which was the same truck from the rental agreement mentioned above.

[23] A surveillance video taken on February 4, 2015, from an apartment building at 33 Taylorwood Dr., Oshawa, was played for Mr. Gnaneswaran. At 11:39 a.m., a black car can be seen pulling into the parking lot of the apartment building. The U-Haul truck can be seen arriving at 33 Taylorwood Dr. at 11:43 a.m. When the U-Haul truck pulled into the parking lot a grey car was following it. The truck stops and the driver exits, goes to the back of the truck, then walks to the grey car and speaks to its driver. The truck is repositioned so it is backed up to an entrance to the apartment building. The truck is then unloaded. Electronics equipment can be seen being brought into the building. A number of TV boxes can be seen being brought into the building, as well as the blue Rubbermaid boxes described by Mr. Gnaneswaran that were taken from The Source, into which various electronic items were put. Initially there are three men unloading and later two additional men become involved in assisting bringing items into the building.

[24] The quality of the CCTV video cameras is not very clear and it is impossible to distinguish facial features of the men who are unloading the U-Haul truck. All that can be said is the men unloading the truck have brown or black skin. Mr. Gnaneswaran denied one of the men coming around the U-Haul truck was his cousin.

[25] At 12:15 p.m., three men are seen carrying boxes out of the apartment building and placing them in the trunk of the grey car. This happens again. One of the blue Rubbermaid bins is put into the grey car's trunk. Another blue bin is brought outside and placed beside the grey car but this is later brought back into the building. At some point a male gets into the driver's side of the U-Haul truck and drives off. Someone stops the truck, speaks to the driver and then the U-Haul drives away at 12:29 p.m.

[26] At 12:29:45 p.m., a black car drove into the parking lot. Two of the males walk over to this car along with another male who had exited the building. The trunk of the black car is opened and the three males remove items from the trunk. The U-Haul truck can be seen returning to the parking lot. After this is done the U-Haul truck leaves again followed by the black car. At 13:24 p.m., three males exit the building and get into the grey car and leave.

[27] A search warrant was executed at 33 Taylorwood Dr., Unit B02 in Oshawa on April 22, 2015. Upon execution of the warrant a large number of items from The Source robbery were located in what was labelled room three, which was a bedroom. A search warrant log from the items seized from this address upon execution of the search warrant was entered as evidence. Room number three was locked and the officer in charge had a key, which he used to open the door.

[28] Mr. Gnaneswaran was recalled for further cross-examination. He testified he did not know anyone by the name of Sanjeef or Sanjith. He agreed his phone number on February 4, 2015 was 416-930-1080. He had the same phone number on October 1, 2015. He was called on that number by Officer Chabrynski to come to the police station. He was advised by the officer once he got to the police station he was not under arrest and he could leave whenever he wanted. He was cautioned and he was then told the police were investigating whether the robbery of The Source was an "inside job." He was asked by the officer about a phone number 647-289-6374. He told the officer he did not know that number, which was the same as he testified in court previously. He also testified he did not know anyone by the name of Yogendrajah Poologasinham.

[29] Mr. Gnaneswaran was then shown the cell phone records of Yogendrajah Poologasinham, pertaining to 647-289-6374 from June 1-27, 2015. He remembered Officer Chabrynski showing him a similar record on October 1, 2015. There were numerous calls and text messages between the 647-289-6374 number and Mr. Gnaneswaran's number 416-930-1080. Mr. Gnaneswaran could not recall what these calls or texts were about. He was not sure who this person is.

[30] Mr. Gnaneswaran is shown a call between his phone and 647-289-6374 on June 21, 2015 commencing at 2:45:26 for 606 seconds, about 10 minutes. Prior to this call and after this call there are text messages between 647-289-6374 and 647-606-2201. At 2:48:36 there is a phone call between 647-289-6374 and 647-606-2201 which lasts 416 seconds or just under 7 minutes. There are also a number of text messages between 647-289-6374 and 416-930-1080 starting from 2:50:53 and 2:55:28. Following these text messages there is a phone call between 647-289-6374 and 416-930-1080 that lasts 54 seconds. There are then a further series of text messages between 647-289-6374 and 647-606-2201.

[31] Mr. Gnaneswaran testified he did not remember a third person being brought into the call between his number and 647-289-6374. He agreed when Officer Chabrynski asked him if it was his voice in the three-way call he told the officer he had nothing to say and asked to speak to a lawyer. Mr. Gnaneswaran agreed he told the officer he would come back the next day after speaking to a lawyer. He did not come back or call the officer.

[32] Mr. Gnaneswaran did not remember what he and the person with phone number 647-289-6374 spoke about in their two calls on June 16 and 17, 2015. He agreed he was the only one using his phone between June 1 and 27, 2015.

[33] On April 22, 2015, at 6:43 a.m., a search warrant was executed at 105 Denison Avenue. PC Quinn was one of the ETF officers who first entered the residence. The first two floors were secured and he continued up the third floor stairs where he found a young male black standing on the landing and he asked him to come down to the second floor. He took control of this individual and handcuffed him. He was relieved by a YRP officer at 6:50 a.m., who took custody of this person.

[34] After the Toronto ETF had secured the residence DC Tompras was assigned to search the basement of the house. A TV was set up in the basement and the box for that TV was located behind the furnace. A Playstation 4, which appeared new, was under the TV. A further TV box was located in the basement with shipping label indicating, SAMUN32EH5300. The address on this label was 3987 Highway 7 East, Unit 2, Markham.

[35] A cell phone agreement from Wind Mobile, phone number 647-702-7173 was located in the basement. In addition, multiple video games in their original packaging, unopened, were also located in the basement.

[36] 105 Denison Avenue is located south of Dundas, between Bathurst and Spadina, near Kensington Market.

[37] PC Whittaker also attended 105 Denison Avenue for the execution of the search warrant. He was tasked with taking photographs of the residence. He also conducted a search of bedroom number three, which was at the top of the stairs on the third floor. He located a mobile phone, a Samsung, which was plugged into a wall socket charging. In the bedroom there is a chair, behind the chair was a hot plate, mixing bowls, measuring cups and baking soda. There was also a large bag of white powder that is used as cutting agent. A quantity of Canadian currency ($830.00) was also found on a table top next to the chairs.

[38] A Blackberry box was located on a shelf of the TV stand, which the TV was on. Inside the Blackberry box were three (3) bags of crack cocaine and a digital scale. The box was closed when it was first located. Xbox and Playstation games in their original packaging were also found. Mail addressed to Samir Ahmed, the driver's license of Samir Ahmed and a Bell phone bill for a mobile phone in the name of Samir Ahmed was seized.

[39] The TV was in standby mode when they entered the room. PC Whittaker did not recall if the TV was on when he first entered the room with DC Moore. PC Whittaker did not break the door leading into the room. The door was broken because it was locked, ETF broke the door to enter the room. There was also a business card, in the name of Samir Ahmed for a company called, Project Cleaners.

[40] DC Moore was also involved in the search of the townhouse at 105 Denison on April 22, 2015. When DC Moore entered the house he was directed to the second floor where he took custody of Ahmed Ahmed who was handcuffed to the rear and sitting just outside the bathroom, which is at the top of the stairs on the second level. DC Moore identified Ahmed Ahmed in the courtroom. Ahmed Ahmed was dressed in a t-shirt and boxer shorts when he was first arrested. DC Moore asks where his clothes were and Ahmed Ahmed tells him his clothes were in the basement. He was brought to the basement and allowed to dress in his clothes. He was then brought to the kitchen.

[41] DC Moore then was detailed to assist Det. Whittaker with the search of bedroom number 3, which is on the third floor at the top of the stairs. The door to bedroom 3 was broken, which was caused by the ETF breaking the door as it was locked. When DC Moore first entered the bedroom he saw the TV was on and shortly after he entered it changed to standby mode or a screensaver. There was also an odour of freshly burnt marihuana.

[42] DC Moore searched the closet and discovered a reusable shopping bag that contained three mason jars. Two of the mason jars contained a green leafy substance consistent with marihuana as well as a large Ziploc bag containing the same green leafy substance consistent with marihuana.

[43] A scale and a box for the scale was also found in bedroom number 3.

[44] A computer tower with the CD drawer open was found on the floor beside the TV. A close-up of the CD in the drawer indicates "Public Prosecution Services of Canada" and the bottom has "R. v. ADEN Ramaden; AHMED Samir; BURALLE, Ahmad; DIN, Chang; HECTOR, Michael; OMAR, Ahmad."

[45] There are two bedrooms on the third floor with a bathroom between them. DC Moore searched the bathroom and located a set of keys beside a waste basket and the toilet. There was a Honda motor vehicle key and key fob and two door keys. DC Moore found the broken piece of the door to bedroom number 3, which had a dead bolt lock and one of the door keys opened the dead bolt lock. DC Moore put in his notes the keys were consistent with someone throwing the keys and them ending up where they were found. DC Moore also testified they could have fallen out of someone's pocket.

[46] Ms. Hajrah Suleiman, the mother of the three accused, testified as to where her sons slept in the house at 105 Denison Avenue. They had lived at this address for eight or nine years. She lived there with her husband, her three sons and her oldest son, Abdul Aziz and his wife and children. Abdul Aziz was working. Ahmed and Mbarouk were attending school.

[47] The house had a basement, the first floor was the living room and kitchen, the second floor was two bedrooms and a washroom and the third floor had two bedrooms and a washroom. She and her husband's bedroom was on the second floor. Her son, Abdul Aziz and his family were in the other bedroom on the second floor. The first bedroom on the third floor was Samir's and the other bedroom on the third floor was Mbarouk and Ahmed as well. Sometimes Ahmed would sleep in the basement, he would decide when. There was a mattress in the basement and in Mbarouk's bedroom there was a bunk bed. In Samir's room there was one bed.

[48] After the police left, one of the bedrooms on the third floor had a broken door. This bedroom was Samir's bedroom, the first one. When the police came her husband was in their bedroom with their two grandchildren and Abdul Aziz's wife was staying in the other bedroom on the second floor by herself. When the police came she was in the kitchen with Ms. Suleiman helping her make breakfast. Abdul Aziz had already left the house.

[49] Mbarouk and Samir were not home as they had gone to Cuba. Ahmed was home and he was upstairs. She does not know which room he was in. He kept some of his clothes in Mbarouk's room and some of his clothes in the basement. When Samir is away sometimes Ahmed would stay in his bedroom on the third floor.

[50] There were some TVs in the basement. The police took two of the TVs when they left. Ahmed told his mother he had bought this TV.

[51] Ms. Suleiman's bedroom on the second floor has a lock and so does Samir's bedroom on the third floor. Ms. Suleiman testified when she would go upstairs the two bedrooms would often have the doors open.

[52] Abdul Aziz had two cars, a black Honda and a silver Toyota. He used his cars but if she needed a car or one of his brothers needed one, they would use it.

[53] Nadia Mohamed testified during the trial about her friendship with Mbarouk Ahmed. At one time they had been romantically involved but when he was arrested in April 2015 they were just friends. Mbarouk would call her from the jail after he was arrested, either every day or every other day. If Mbarouk wanted to call his family he would call Ms. Mohamed and she would call them and do a three-way call. In the summer of 2015, Ms. Mohamed testified she had heard the name, Sundip. She never spoke to Sundip but they did talk to each other through texts. She was provided Sundip's number and she was told to make a three-way call.

[54] She did not know who gave her Sundip's number as they all called her phone. All of the brother's called her and asked her to do three-way calls so she does not know who called and gave her Sundip's phone number.

[55] She did testify at a bail review respecting whether Mbarouk Ahmed could be released from custody. She read through the transcript of her evidence at the bail review. She testified it was her first time in court and she did not really remember much of what she was saying and she guessed from reading her evidence she made a lot of assumptions. She did not believe looking at the transcript would refresh her memory as she had already looked at it.

[56] The Crown provided her with a copy of the transcript, which she agreed showed she had sworn on the Koran to tell the truth. The date she testified was October 19, 2015. Ms. Mohamed testified she did not recall much of what she said and she was nervous and scared.

[57] At page 22 of the transcript Ms. Mohamed was asked by Mr. Mbarouk's lawyer, "So Mbarouk had asked you to connect a call while he's in custody with this person Sundip?" and she responded, "Yes." At trial the Crown asked if she was being truthful when she gave that answer and she responded, "I made an assumption and that was an error on my part and I passed that off as a fact. But I don't know who was on the call." Her answer at the trial was she did not know who called her and asked her to do the three-way with Sundip.

[58] The Crown then applied to cross-examine Ms. Mohamed pursuant to s. 9(2) of the Canada Evidence Act, having regard to the inconsistency in her answers. The Crown also pointed to Ms. Mohamed's answers to the Crown at the bail review, where she clearly indicated she had called Sundip at the request of Mbarouk Ahmed and then Mbarouk and another person, who was on Sundip's phone, spoke to each other about this incident. She indicated to the Crown at the bail review she had overheard the call between Mbarouk and Sundip and this other person. As a result of these glaring inconsistencies I permitted the Crown to cross-examine Ms. Mohamed.

[59] The Crown suggested to Ms. Mohamed she knew Mbarouk's voice when he called her. Ms. Mohamed initially said she talked to all three of the brothers so she would be asked to connect them in a three-way call and often she would not really know who was calling. She finally admitted knowing Mbarouk's voice because she had talked to him many times on the phone before his arrest and after. She would not agree she believed at the time of the bail review it was Mbarouk who asked her to connect him to Sundip, it was just an assumption. "It was – it was an assumption. I didn't – I wasn't sure. So, like, I didn't believe because I didn't know. I wasn't sure."

[60] She agreed she told the judge at the bail review, under oath, that it was Mbarouk on the phone, even though she was not sure. She indicated the question was a hypothetical question but when asked if the direct question of it being Mbarouk on the phone was a hypothetical question she answered, "No." She finally agreed she was asked directly if it was Mbarouk and she said, "Yes." She reverted back to it was an assumption and even though she did not know if it was true that is what she told the court. This was an error on her part and she offered her apologies.

[61] She agreed she told the judge she believed Sundip was a friend of Mbarouk's but all she could really say is she assumed they were friends. She agreed she recorded the conversation but then said she was not even in the room when it was recording. She could not remember now who asked her to make the recording of the conversation. She guessed her memory was better in October 2015, a year before testifying at the trial. She agreed the day after she made the recording she would have remembered who asked her to make it and because of the time that had passed she could no longer remember. She then changed this answer and said she never knew who asked her to make the recording of the call.

[62] The Crown then showed her a series of text messages between herself and Sundip. At p. 11 of the texts there is a text from Sundip to her, which reads:

"Show him that just stick with the original plan and when the trial come they will call my cuzzo and he will say that there was no strezzy and everything majority of the charges will get dropped."

Ms. Mohamed agreed she responded, "All right. I'll pass the message on to him. Thanks." She then texted Sundip back, "Moby said even if he doesn't want to do it and will go against you it's not a big deal. Because you're protected. If you consider me to be your bro I'll see you in court on the 22 nd of June, the name of the lawyer is Dominec Manzo. His number (blacked out) Call him and say you want to talk about the Ahmeds' case." She testified at the trial she did not know which brother went by the name "Moby."

[63] The Crown asked Ms. Mohamed who she was passing these messages onto and she indicated, "Whoever calls who calls the phone." It would be one of the brothers, although she could not say if all of the brothers knew about her communications with Sundip. She was asked why she wrote "Moby" and her response was that was a name given to her. When asked by whom, she responded, "I'm not sure. Whoever was on the line, just I don't remember."

[64] When it was put to Ms. Mohamed she said on a number of different occasions, "I'll tell him," she was referring to whoever called her first. She testified she received calls from all the brothers but mostly Mbarouk. She later indicated it could have been other persons calling from the jail asking her to do this, despite agreeing she did not know anyone else at the jail.

[65] In Ms. Mohamed's evidence at the bail review she was asked by the Crown at p. 92:

"Q: But you were aware from Mbarouk that he was involved in the illegal event in which, during which, tens of thousands of electronics was taken from The Source."

She responded:

"Um, as per my understanding like he was in possession of, I guess, some stolen goods, as per when I spoke to him about it. So when we had this conversation we realized obviously it was a – it was stolen goods as per my understanding he was in possession of stolen goods and these guys were the ones who, I guess, gave it to them or I'm not sure. It changed hands from them to, um – to Mbarouk and his brothers."

[66] Ms. Mohamed took the position at trial that Mbarouk was not in possession of stolen goods, rather, stolen goods were found in his house and that is what she was referring to. She misspoke again at the bail review.

[67] It was Ms. Mohamed's position at the trial that she and Mbarouk were just friends, they were not "close" friends. She agreed she described her relationship with Mbarouk as "very close friends" at the bail review. She testified they were closer at that time than now but even then they were just friends. She changed her evidence and agreed back then they were very close friends. Then she once again reiterated they were just friends although she used the phrase "very close friends" in her evidence at the bail review. She then testified at the time of the bail review she was interested in having a conversation about the possibility of renewing their previous romantic relationship with Mbarouk.

[68] The Crown brought an application to have Ms. Mohamed's transcript from the October 18, 2015 bail review put into evidence for its truth, pursuant to R. v. B. (K.G.), [1993] 1 S.C.R. 740. Written submissions were filed by the Crown and counsel for Mbarouk Ahmed. On January 5, 2017, Mr. Sarantis, on behalf of Mbarouk Ahmed, conceded the transcript of Ms. Mohamed's evidence at the bail review met the requirements set out by the Supreme Court in R. v. B. (K.G.) and it could be used as evidence of the truth of its contents.

Analysis

[69] At the conclusion of the trial it was agreed by the Crown and defence counsel that the Crown has not proven the charge of robbery with a firearm beyond a reasonable doubt. This was demonstrated by the Crown's request on January 5, 2017 to dismiss the charges of disguise with intent to commit the indictable offence of robbery against Mbarouk Ahmed and Ahmed Ahmed. All counsel agree the appropriate charge is the included offence of theft over $5000.

[70] The charge relating to possession of property, knowing that all or part of the property had been obtained by an offence punishable by indictment, relates to money of a value not exceeding $5000; however, no money was found (other than the $830.00 found in Samir Ahmed's bedroom) in respect of the robbery allegation, now the included offence of theft over. There was property alleged to be from the theft from The Source but there is no charge in respect of that property. Consequently, the charges of possession of property obtained by crime against Mbarouk Ahmed and Ahmed Ahmed are dismissed.

[71] I will deal first with the issue of whether the Crown has proven beyond a reasonable doubt that Mbarouk Ahmed was the individual who arranged with Nadia Mohamed to set up a three-way call between himself and the employee of The Source, Miresh Gnaneswaran, through Gnaneswaran's cousin, Sundip. Ms. Mohamed maintained in her evidence at the trial she could not remember who asked her to set up the three-way call and what she testified to at the bail review was in error and for which she apologized.

[72] From Ms. Mohamed's evidence at this trial there is no doubt Ms. Mohamed set up a three-way call between a person named Sundip and one of the Ahmed brothers. There is also no doubt Sundip is connected to the employee at The Source, Mr. Gnaneswaran, who Sundip refers to as his "cuzzo." There is no doubt in my view Mr. Gnaneswaran was the individual on the three-way call arranged by Ms. Mohamed with one of the Ahmed brothers as it involved his phone, 416-930-1080, which Mr. Gnaneswaran testified was not used by anyone other than himself. Further, having regard to the substance of that conversation the tape recording proves that Mr. Gnaneswaran was the other person on the three-way call. There is no doubt Ms. Mohamed recorded this conversation between one of the Ahmed brothers and Mr. Gnaneswaran, the employee of The Source. There is no doubt this recording was used to demonstrate to me that the incident from February 4, 2015 was not a robbery with a firearm but rather, was a theft staged to look like a robbery.

[73] I do not accept the evidence given by Ms. Mohamed at this trial as it relates to her lapse of memory as to which of the Ahmed brothers she arranged the three-way call for. It is my view the evidence she gave at Mbarouk Ahmed's bail review was true as she clearly and consistently testified she arranged with someone called Sundip at the behest of Mbarouk Ahmed to set up a three-way phone call between Mbarouk and Sundip's cousin, who she referred to as "the alleged victim," the Source employee.

[74] Ms. Mohamed testified at the bail review that Sundip had contacted her out of the blue and told her that he was a friend of Mbarouk's. She was instructed by Mbarouk Ahmed to tape record the three-way conversation she arranged so that it could be used in Mbarouk's defence if this person did not come forward to tell the truth in order to demonstrate Mbarouk Ahmed was not involved in a robbery with a firearm. She created that tape recording and provided it to Mbarouk Ahmed's defence lawyer and the recording has been used as intended. I do not accept Ms. Mohamed's evidence at trial that she did not listen to the conversation as she was recording it. I found Ms. Mohamed's evidence at the trial to be internally inconsistent, she often said one thing and then said the exact opposite, she was evasive and, quite frankly, on a number of occasions dishonest. There are a number of reasons why I have come to this conclusion, some of which I have set out below:

1. Ms. Mohamed was called at Mbarouk Ahmed's bail review as a potential surety;

2. She described herself as a "very close friend" (a characterization she was not prepared to admit at this trial where she said she was "just a friend") Her evidence on this issue was particularly incredible and unbelievable given it was her position she was prepared to take an unpaid leave from her job in order to supervise Mbarouk Ahmed 24/7 as his surety. Further, she admitted in her evidence at the bail review she saw a possibility she and Mbarouk might rekindle their previous romantic relationship.

3. The Crown at the bail review asked questions about what Mbarouk had told her concerning his involvement in the incident at The Source. She knew he was charged with armed robbery and although Mbarouk did not tell her all of the details about everything that occurred on that day he did tell her what was presented by the police was not true. Mbarouk did not tell her whether he went to the store or not but she told the Crown she overheard a conversation between Mbarouk and someone else about this incident. Ms. Mohamed volunteered, and the Crown learned for the first time, that she had arranged a three-way conversation between Mbarouk, who was in custody and Sundip, who she believed to be a friend of Mbarouk. Sundip connected his "cuzzo' who worked at The Source, into the three-way call. She told the Crown it was Mbarouk who asked her to connect Sundip's cousin to a three-way call with Mbarouk while he was in custody, which she did.

4. Ms. Mohamed agreed with Mr. Sarantis' suggestion at the trial she only told the Crown it was Mbarouk who requested she arrange the three-way call because of the leading questions asked by the Crown. Yet from my review of the transcript, the vast majority of the Crown's questions were open-ended. Further, as I have indicated it was Ms. Mohamed who volunteered the fact that Sundip, a friend of Mbarouk and the cousin of the Source employee had texted her out of the blue. He began texting her and she him.

5. She further testified at the bail review that Mbarouk requested her to tape record the three-way conversation, in the event the employee did not provide a statement to Mbarouk's lawyer or speak to the police to tell what really happened.

6. Ms. Mohamed testified under sworn oath on the Koran.

7. Ms. Mohamed did not have any motive to lie about Mbarouk Ahmed's involvement in this incident as she was testifying to assist him in being released from custody on bail, which was what occurred. In my view it is significant that all of the information about Mbarouk and Sundip and the three-way call between Mbarouk and Sundip's cousin, the alleged victim at the Source was volunteered by Ms. Mohamed. It is quite evident the Crown knew nothing about Sundip or Sundip's cousin being the employee at the Source or the texts with Sundip or the tape recorded phone call between Mbarouk and the employee until Ms. Mohamed volunteered the information.

8. Ms. Mohamed also testified as to her knowledge of Mbarouk Ahmed's involvement in the theft as a result of her conversations with him, he told her it was not a robbery but a theft. Her answer to a question by the Crown, in my view, proves this:

Q. Well, I mean, it's become apparent to you, hasn't it, in the course of talking to Mbarouk after he's been arrested, that he was involved in this illegal act in, in terms of taking things, whether it was he personally, or orchestrating from the Source, right?

A. Mm-hmmm. Yeah.

9. Ms. Mohamed refers in her texts to Sundip that the person giving her instructions is "Moby," which in my view permits the reasonable inference this is a nickname for Mbarouk, as opposed to Mbarouk's brothers, Samir or Ahmed Ahmed.

10. The text messages between Ms. Mohamed and Sundip, in my view, put a lie to Ms. Mohamed's evidence at the trial that she did not know which Ahmed brother she was connecting in the three-way call. At one point in her evidence she admitted she knew Sundip was a friend of Mbarouk, yet she changed this answer saying this was her assumption when, in my view, it was because she realized the impact of what she had just said.

11. Ms. Mohamed denied she knew Mbarouk's voice when she spoke to him by phone, despite having been romantically involved with him previously, speaking to him every day or every second day from his arrest in April 2015 to this three-way call on June 21, 2015. She later admitted she did know Mbarouk's voice but could not remember which of the Ahmed brothers she set up the three-way call with Sundip.

12. At trial she testified it was Mbarouk who she spoke to most often, the other brothers called her but not as often. In her evidence at trial she testified she really didn't know who was calling her at times from the jail, it could be any person calling her, despite admitting she did not know any other persons who were in custody.

[75] The text messages between Ms. Mohamed and Sundip, the three-way call between Mbarouk and Sundip's cousin and Ms. Mohamed's testimony at Mbarouk Ahmed's bail review demonstrate there was a plan to steal electronic equipment from The Source involving Sundip's cousin who worked there and Mbarouk Ahmed and others. It is my view when Ms. Mohamed refers to "Moby" she is referring to Mbarouk and when Sundip refers to "mob" he is referring to Mbarouk. Ms. Mohamed indicated in the texts Mbarouk wanted Sundip's cousin to come to court to tell the truth about what happened. Further, it is clear Sundip was passing on his cousin's message for Mbarouk and his brothers to wait till the trial when the cousin would say these things and the charge would be reduced to theft.

[76] It was finally agreed between Sundip and Ms. Mohamed at the end of the texts that a three-way call would be arranged so that Sundip's cousin, who I believe to be Mr. Gnaneswaran, and Mbarouk Ahmed could talk about these issues. Ms. Mohamed offered to set up the three-way call herself if Sundip was too busy. It is also clear from the texts that Sundip is concerned if Mbarouk "ratten" and tells what he knows then Sundip and someone called "flo" will get "sucked." Sundip tells Ms. Mohamed to tell Mbarouk, "Tell him to smarten up and stay solid or shit gonna get ugly and his gonna bring other mans down for triple the time he dealen with. Tell him stop that ratten shit and stay solid. Show him he gonna have flo and me facing 10 and up."

[77] In this case, for the reasons set out above I find Ms. Mohamed's evidence at this trial to be incredible and contrary to common sense and logic. I was not able to observe her evidence at the bail hearing but it is clear from the bail review transcript that she volunteered much of her evidence respecting what Mbarouk Ahmed told her about the incident, to arranging the three-way call between himself and Sundip's cousin, the alleged victim and she provided this evidence in a matter-of-fact way and straightforward manner, which was completely unlike the evasive, dishonest and equivocal manner she demonstrated during her testimony at this trial.

[78] Consequently, in my view the Crown has proven beyond a reasonable doubt Mbarouk Ahmed was the other individual speaking with Mr. Gnaneswaran on June 21, 2015, on this three-way call when Mbarouk Ahmed was in custody. In the recorded three-way call, Mbarouk Ahmed is discussing with Mr. Gnaneswaran the staging of the robbery. He is clearly asking Mr. Gnaneswaran to speak with his lawyer to provide a statement indicating there was no gun involved and that Mr. Gnaneswaran was not tied up. He is not telling Mr. Gnaneswaran that he was not involved in the theft of the electronics from The Source only that it was not a robbery. The motivation in trying to get Mr. Gnaneswaran to say these things was so that Mbarouk and his brothers would be released on bail as the charges would not be as serious as the charge of robbery with a firearm.

[79] I find beyond a reasonable doubt as a result of Ms. Mohamed's evidence at the bail hearing, the text messages between Ms. Mohamed and Sundip, which I find were made on the instructions of Mbarouk Ahmed and the recorded conversation of the three-way call between Mbarouk Ahmed and Miresh Gnaneswaran that Mbarouk Ahmed was involved in the theft of electronics equipment from The Source, located at 3987 Highway 7 East, Markham, Ontario. There will be a conviction on that charge.

[80] There is positive evidence that Ahmed Ahmed rented the U-Haul truck on February 3, 2015, that was used to take the electronics equipment stolen from The Source on February 4, 2015. Ahmed Ahmed's driver's license was provided at the U-Haul rental office. There is a reasonable inference that Ahmed Ahmed would have provided his driver's license with his photo ID and the clerk would have been satisfied the driver's license matched the person he was renting the truck to. Further, all of Ahmed Ahmed's personal information is provided on the rental form: his birthdate, address, cell phone number (same as a phone bill found in the basement of 105 Denison where Ahmed Ahmed slept) and the driver's license number. The U-Haul was rented on February 3, 2015 at 2:21 p.m. and returned on February 4, 2015 at 1:36 p.m.

[81] Mr. Gnaneswaran testified a U-Haul truck was utilized by the individuals who stole the electronics equipment. He had a clipboard to make it appear that the U-Haul truck being loaded with electronics from the store was a legitimate exercise. He also assisted the men involved in the theft load items onto the truck, in particular a large TV in a box. As I have found above, Mr. Gnaneswaran was a willing participant in the theft of the electronics from The Source.

[82] The U-Haul truck was driven to 33 Taylorwood Drive in Oshawa and arrived at 11:44 a.m. on February 4, 2015, according to the video surveillance. The truck was unloaded by three individuals who can be seen on the video surveillance of the apartment building where the items were off-loaded. Two additional individuals joined the original three men unloading the U-Haul truck and bringing the items into the apartment building. It is not possible to identify any of the individuals who were involved with the U-Haul truck because of the poor quality of the CCTV video surveillance.

[83] At 12:29 p.m., the unloaded U-Haul truck and a black car are seen leaving 33 Taylorwood Drive. The surveillance video is unable to capture the make or license plate of the black car. At 1:36 p.m., the same black car and U-Haul truck are seen on video pulling into the plaza parking lot of the U-Haul truck rental facility, which is associated with the Daisy Mart.

[84] Given the timing of the theft from The Source, the time when the U-Haul first arrives at Taylorwood Drive in Oshawa, when it leaves this address and arrives at 2950 Kennedy Road it is my view and I find that the U-Haul truck used for the theft is the same U-Haul truck that is unloaded in Oshawa and is the same U-Haul truck that is returned to the rental facility on Kennedy Road.

[85] There was no CCTV video surveillance from the U-Haul store for February 3, 2015, when the truck was rented as it had been recorded over or erased by the time the police discovered the address it was rented from. There was CCTV video surveillance from February 4, 2015, when the truck was returned. The image of the individual returning the U-Haul truck is very grainy and the image is not sufficiently clear to be able to identify the individual.

[86] Although Ahmed Ahmed cannot be positively identified as the driver of the U-Haul truck or as being one of the individuals who unloaded the U-Haul truck, I am of the view the Crown has proven beyond a reasonable doubt Ahmed Ahmed's involvement as a party to the theft of the electronics equipment from The Source as a result of his rental of this U-Haul truck. The theft involved taking approximately $76,000.00 of property from The Source. The truck was rented and returned for less than one day. This U-Haul truck was used during the theft and then driven to another location and unloaded. There is also evidence Ahmed Ahmed brought a TV into his residence and put it into the basement. When his mother asked him about it he said he purchased it. This was a lie as it was identified as coming from the theft of electronics from The Source. In my view this is another piece of evidence to consider respecting whether Ahmed Ahmed was a party to the theft. His rental of the U-Haul certainly aided the commission of the theft. Consequently, I find Ahmed Ahmed guilty of the theft over charge.

[87] This leaves the two CDSA possession for the purpose of trafficking charges involving crack cocaine and marihuana facing Samir Ahmed and Ahmed Ahmed.

[88] It is my view considering the totality of the evidence respecting the discovery of the two quantities of drugs in Samir Ahmed's bedroom that the Crown has failed to prove beyond a reasonable doubt the necessary elements of knowledge and control respecting each accused. I make this find for the following reasons.

1. Samir Ahmed was away on a trip to Cuba when the search warrant was executed. He had been away for 4 days at that point in time.

2. Although Ms. Suleiman testified the first bedroom, at the top of the stairs, on the third floor was used by her son, Samir, she also testified her son Ahmed used this room on occasion. Ahmed normally slept in the basement but Ms. Suleiman testified he stayed in Mbarouk's bedroom, the other bedroom on the third floor, because it had a bunk bed. Samir was away so it is certainly possible Ahmed was staying in Samir's bedroom.

3. Although the room had a deadbolt lock on it, Ms. Suleiman testified it was often unlocked and any of the occupants of the house could attend in it.

4. Further, a Honda car key fob with two door keys was found by police in the third floor bathroom on the floor between the waste basket and the toilet. One of the door keys opened the deadbolt lock on Samir's bedroom door. It is unknown how or when this key was deposited in the location it was found. It could have been put there by Ahmed as he was the only person on the third floor when the police entered the house on April 22, 2015 or it could have slipped from someone's pocket and fell onto the floor. One thing is certain, it was not in Cuba with Samir.

5. The key which opened the deadbolt was attached to a Honda car key fob. Abdul Aziz, an older brother who lived in the 105 Denison residence with his wife and two children owned a black Honda Civic, which Ms. Suleiman testified was driven by whoever needed it at any given time. This means any one of the persons who lived in the house could have gained access to Samir's bedroom by utilizing this door key whenever they had the keys to the Honda Civic.

6. There was some evidence that seemed to suggest someone was in Samir's bedroom just before the police arrived because DC Moore, who searched this room after ETF broke the door to gain entry, detected an odour of burnt marihuana and observed that the TV was initially on and then went to standby. Further, a Samsung phone was plugged into a charger that was plugged into a wall socket. It is likely that Ahmed was the person in Samir's room and he exited when he heard the commotion with the police, which would explain why he was on the third floor. Did Ahmed smoke some of the marihuana in the two mason jars or the large Ziploc bag or did he have his own marihuana cigarette when he went into the room or had someone else smoked marihuana in the room days before it was searched by the police? It is impossible to discern the answer to these questions. There was no evidence of a marihuana cigarette butt in an ash tray.

7. Ms. Suleiman also testified that friends of Samir would come into the house and go to Samir's bedroom.

8. There was no evidence who put the crack cocaine in the Blackberry box on a shelf in the TV stand or who put the marihuana into a shopping bag in the closet. Abdul Aziz could have put the drugs there to keep it away from his two young children and prevent them from accidentally coming across it if he put it in his own bedroom. Both drugs could have been put there by Samir or by Ahmed, there is no positive evidence tying any one person to the drugs. No forensic analysis was conducted respecting the Blackberry box or the shopping bag or the mason jars or the Ziploc bag.

[89] These are only some of the examples of circumstances which, in my view, clearly demonstrate that no one person had exclusive access to or possession of the illicit substances discovered in this bedroom.

Circumstantial Evidence

[90] Circumstantial evidence was defined in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 by McLachlin C.J.C. and Bastarache J. at para. 89:

Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred"

[91] When convicting based on circumstantial evidence alone, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris, 2009 SCC 28, [2009] S.C.J. No. 28 at para. 33.

[92] In R. v. Aiello (1978), 38 C.C.C. (2d) 485, the Ontario Court of Appeal held that it was not necessary for the prosecution to prove the required knowledge by direct evidence, but that it could be inferred from the surrounding circumstances.

Possession

[93] "Possession" is defined in s. 4(3) of the Criminal Code as the following:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person;

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[94] The test of knowledge and control sufficient to constitute possession is clearly outlined in Justice Watt's Manual of Criminal Jury Instructions on possession:

A person whap has actual physical control of something, as for example, by holding it in his/her hand, or keeping it in his/her pocket, has that thing in his/her possession.

A person who knowingly has a substance in the actual possession or custody of somebody else, or in some place for the use or benefit of him/herself or somebody else, has that substance in his/her possession, provided s/he has some element of control over that substance. Knowingly means that the accused is aware of the possession or custody of the thing by another, or in another place, and does not act through ignorance, mistake or accident. To decide whether the accused acted knowingly , you may consider evidence of the accused's words, acts or omissions, along with all the other evidence.

There are also circumstances in which several persons may have possession of an item at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has anything in his/her possession or custody, all of them are in possession of that substance, provided s/he has some control over that substance. Knowledge and agreement by the others who are not in actual possession of the substance is essential. Mere indifference or doing nothing is not enough.

[95] The law of possession requires proof of the elements of knowledge and control, as those terms have been interpreted in a long line of binding authority.

[96] It is now well established in the law of possession that proof of knowledge of the prohibited substance or thing is the mens rea of the offence, and control of the substance or thing is the actus reus. See: R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.); R. v. Terrence (1983), 4 C.C.C. (3d) 193 (S.C.C.). Section 4(3) of the Criminal Code provides for three distinct forms of this possession: first, having the substance "in his personal possession"; second, having the substance "in the actual possession or custody of another person" or "where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession" (known as joint possession); and third, having the substance "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (known as constructive possession).

[97] All three forms of possession by a principal or co-principal require proof of both knowledge and control. The issue in this case is whether the Crown has proved these two elements beyond reasonable doubt, as against any of the three accused and in relation to either or both of the prohibited things, namely, the gun and the cocaine. Alternatively, aiding or abetting by a party, pursuant to s. 21(1) of the Criminal Code, requires some act of assistance or encouragement of the principal "for the purpose of" aiding or encouraging the principal's possession of the prohibited thing. See: R. v. Dunlop and Sylvester (1979), 47 C.C.C. (2d) 93 (S.C.C.); R. v. Hibbert (1995), 99 C.C.C. (3d) 193 (S.C.C.).

[98] There is no evidence directly linking either Samir Ahmed or Ahmed Ahmed to the crack cocaine or the marihuana found in this bedroom. All of the individuals living in the residence had access to this bedroom despite there being a deadbolt lock on the door.

[99] Considering the totality of the evidence led by the Crown I am not satisfied beyond a reasonable doubt Samir or Ahmed Ahmed had knowledge and control of the cocaine. The evidence is entirely circumstantial and in my view there are other rational inferences available on the evidence that do not prove Samir Ahmed's or Ahmed Ahmed's guilt beyond a reasonable doubt. Consequently, both accused are acquitted of the CDSA offences facing them.

Released: May 3, 2017

Signed: Justice Peter C. West