WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Hafeez, 2019 ONCJ 134

DATE: 2019 03 01

COURT FILE No.: Toronto 4817-998-17-75002465-01, 4817-998-17-75002242-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRIAN HAFEEZ AND DERECK SAMPSON

Before Justice J. W. Bovard

Heard on February 19, 20, 21, 22, 25, 2019

Reasons for Ruling released on March 1, 2019

Ms. V. Hentz ........................................................................................ counsel for the Crown

Mr. G. Butler ......................................................... counsel for the defendant Brian Hafeez

Mr. C. O’Connor ......................................... counsel for the defendant Dereck Sampson

Bovard J.:

[1] These are the court’s reasons for its ruling with regard to committal to stand trial for Mr. Brian Hafeez and Mr. Dereck Sampson. Mr. Hafeez is charged with Mr. Sampson in counts one and two of the information ending in 2465. Count one alleges a conspiracy between them to commit the indictable offence of assault on the complainant.

[2] Count two charges them with committing an aggravated assault on the same person. The offences allegedly occurred on February 15, 2017.

[3] Mr. Hafeez is charged alone on the same information with sexually assaulting the same complainant on February 15, 2017.

[4] In addition, Mr. Hafeez is charged alone on a separate information, ending in 2242, with failing to comply with his recognizance of bail on March 10, 2017, by breaching a condition that he not communicate with the same complainant.

[5] Mr. Hafeez is also charged on that information with criminal harassment of the same complainant on March 10, 2017.

Regarding the information ending in 2465:

[6] Mr. O’Connor concedes committal for Mr. Sampson on count two: aggravated assault. Therefore, Mr. Sampson is committed to stand trial on that count.

[7] On that same information, Mr. Butler concedes committal for Mr. Hafeez on the sexual assault. Therefore, Mr. Hafeez is committed to stand trial and that count.

[8] Both Mr. O’Connor and Mr. Butler contest committal with regard to the conspiracy charge on this information.

[9] Mr. Butler also contests committal with regard to the charge of aggravated assault on this information.

Regarding the information ending in 2242:

[10] Mr. Butler concedes committal for Mr. Hafeez on the charge of breaching his recognizance and on the charge of criminal harassment. Therefore, Mr. Hafeez is committed to stand trial on those counts.

[11] Given these concessions, I will refer to the evidence on these charges only as needed in order to make my rulings on the charges for which committal is contested.

[12] The evidence is as follows.

[13] First, counsel very helpfully prepared an extensive agreed statement of facts, which is exhibit 1. It states the following:

[14] Agreed statement of facts:

(1) Date

(2) Jurisdiction

(3) Identity upon arrest

(4) Continuity and authenticity of video surveillance (time stamps are inaccurate):

(a) 334 Donlands video is approximately 15 hours ahead

(b) 250 Cosburn is 48 minutes ahead

(5) Google Maps of the area (x2) can be tendered without a witness

(6) The injuries to A.S. meet the definition of aggravated assault

(7) The medical records of A.S. are admitted

(8) That Brian Hafeez was bound by a valid recognizance on the dates of March 10-13, 2017 with a condition not to communicate or associate directly or indirectly with A.S.

(9) The SOCO photos of the Search Warrant execution at Dereck Sampson's residence can be tendered without a witness

(10) That for the purposes of the prelim, it is conceded that there is some evidence that Dereck Sampson is the person depicted on the video surveillance at 250 Cosburn, wearing clothing that matches the clothing seized from apartment #208 at 250 Cosburn Ave. As a result, the Crown is not required to bring a Nikolovski application with respect to his identity and presence on that video.

(11) The Blackberry cellphone that was seized from 105 Cadorna Avenue was analyzed by Toronto Police Tech Crimes and it is agreed the following information is true:

(a) The phone number associated with this device is 647-762-1899;

(b) There are multiple photos and videos on the device depicting Brian Hafeez on this device;

(c) That there is a contact of 'Dereck' in that device with a phone number of 647-963-9261

(d) That there were missed incoming calls from 647-963-9261 on February 16, 2017 at the following times: 02:45:24, 02:47:42, 02:54:52, 03:05:21 and 17:53:49; and

(e) That there was a received text from 647-963-9261 on February 16, 2017 at 02:50:14 saying 'Call me asap'.

(12) The LG Flip phone that was seized from 250 Cosburn Ave, #208 was analyzed by the Toronto Police Tech Crimes and it is agreed the following information is true:

(a) The phone number associated with this device is 647-963-9261;

(b) That images of Dereck Sampson and a female were located on this device;

(c) That there were incoming text messages addressed to both 'Dereck' and 'Joni' located on this device;

(d) That there is a contact of 'Brian' in that device with a phone number of 647-762-1899.

(13) The Samsung flip phone that was seized from 250 Cosburn Ave, #208 was analyzed by the Toronto Police Tech Crimes and it is agreed that the following information is true:

(a) That there was no SIM card in this device;

(b) That there is a contact of 'Brian Hafeez' in that device with a phone number of 647-762-1899.

(14) That the data extracted from the above cellphones does not represent the totality of the information on the devices, however that is the only information (of relevance to these proceedings) that was able to be extracted at this time.

(15) That there is video surveillance seized from 250 Cosburn Avenue that includes the following captures of relevance:

(a) At 04:14:00 individuals matching the description of Dereck Sampson and a female believed to be Joni Scott exit the address out the back of the building. (Actual time: 3:26:00pm);

(b) At 4:24:10 an individual matching the description of Dereck Sampson enters the front of the building using the keypad (Actual time 3:36:00pm);

(c) At 4:25:45 an individual believed to be Joni Scott enters the front of the building (actual time 3:37:45);

(d) Both of these individuals appear on multiple camera angles just after these times as they progress into the building, including on the bottom corner of the video where stairs ascend to the second floor; and

(e) At 4:25:50 an individual believed to be Joni Scott walks away from the camera on the first floor with a black dog and a garbage bag, and exits via the rear doors. (actual time 3:41:50).

[15] The complainant testified that she has known Mr. Hafeez for four years. They dated for three years. Recently, leading up to the day in question, she told him that she wanted out of the relationship. He called her work on various occasions and made allegations against her.

[16] On the day in question, they got together for Valentine’s Day at Mr. Hafeez’s home, 105 Cadorna Ave. They had a few drinks after which the complainant fell sleep. Mr. Hafeez finished the bottle of Hennessy that they were drinking and went to bed.

[17] The complainant woke up in the morning. Mr. Hafeez was in the bedroom. She told him that she had to go to work. He asked her to call in sick so that they could spend the day together. She agreed and called in sick. She did so because she wanted to talk to him about their relationship.

[18] Mr. Hafeez was going outside of the house and speaking on the phone quite a bit, which was unusual for him to do.

[19] She told him that she wanted to go home. He asked her to stay to have something to eat. She said that she did not want to eat, but he ordered some food to be delivered anyway. The food came between 1PM and 3 PM.

[20] Shortly after the food arrived, Mr. Hafeez received a telephone call. He went outside to talk on the phone for about 10 minutes. Prior to that he had been outside on the phone for about 20 minutes.

[21] They did not discuss the phone calls when he came back in the house.

[22] He wanted to have sex, but she told him that she did not want to. He pushed her down on the couch and had sexual intercourse with her against her will.

[23] Afterwards, she remain on the couch for about five minutes. He went to the bathroom and closed the door and turned on the water. She walked over to the bathroom door and heard him describing her appearance and what she was wearing.

[24] Up to that point she had not left the house because she wanted to retrieve her curling iron from the bathroom and use the bathroom herself. Plus, she wanted to collect some other things that she had there.

[25] When she collected all of her things she left the house. She walked towards a bus stop that was close by. Mr. Hafeez knew that she was going to the bus stop because she did not call a taxi and he was not driving her home. This is the way that it had been for the three years that they were dating each other.

[26] As she was walking to the bus stop she saw a black man wearing a ski mask on the same side of the sidewalk as her, walking towards her and in the direction of Mr. Hafeez’s house. Mr. Hafeez was out on the porch. She crossed the street. She just had a quick look at the masked man, but she believed that he had on the jeans and a blue/green jacket.

[27] She looked back towards Mr. Hafeez’s home and saw Mr. Hafeez nod at the masked man in a “yes” gesture. The masked man and Mr. Hafeez met right outside of Mr. Hafeez’s porch on the lawn.

[28] She continued to the bus stop. While waiting for the bus, the complainant looked in her purse to find change for the bus fare. When she looked up, the masked man grabbed her hair from the front of her head and started slashing her. She could not see the object that he was using to slash her. She estimated that he was approximately 5’7” tall. She is 5’3” tall.

[29] As the masked man slashed her he said “this is from Brian”, which is Mr. Hafeez’s first name.

[30] Nothing was stolen from the complainant in the attack.

[31] He slashed her face six times. She saw blood dripping from her face and hands. When he stopped, she ran away and asked a crossing guard that was nearby to call 911. The crossing guard told her to go to a flower shop that was close by. They would be able to help her there.

[32] The crossing guard, Ms. Tsirigotis, said that she was working at a crosswalk close to the bus stop where the attack occurred. She saw a masked man at the bus stop. The man had crossed the street at her crosswalk on the way to the bus stop. She was 1-2 feet from him. His mask was black. She looked at ex. 9, a picture of the blue mask that the police found in Mr. Sampson’s apartment. She said the masked man’s mask was similar. He had on a ¾ length blue coat. He was approximately 5’5”. She is 5’4”.

[33] The complainant went to the flower shop. The owner called 911. The owner testified, but beyond verifying that the complainant came into his shop bleeding and that he called 911, there is no need to discuss the rest of his evidence for the purpose of the preliminary hearing.

[34] The ambulance came and attended to the complainant. She was hospitalized for two days. The police took a statement from her at the hospital. She gave a second statement later.

[35] In the first statement, she said that the man wore a black mask. In the second, she said that it was blue. She was not sure which it was. She denied that she ever saw a ski mask found by the police, or that she was told that the police found one.

[36] In the first statement she said that the man’s jacket was green. In the second statement she said that it was blue/green.

[37] Mr. Thomas testified that he was driving southbound on Donlands Avenue when he saw the complainant running, bleeding, holding her face.

[38] He also saw a man running away from the complainant’s location. He followed the man. The man ran down Donlands Avenue and turned right on Cosburn Ave. As Mr. Thomas passed the man, the man took off or started to take off a ski mask. The man entered 250 Cosburn Avenue.

[39] The man wore a blue winter coat. The ski mask was blue, also. Mr. Thomas was pretty sure that the man had on blue jeans. He described him as a black man, approximately 5’6” to 5’7” tall. He was maybe in his 30s. In his statement to the police he described him as being dark brown.

[40] The police arrested Mr. Hafeez for the charges that he faces before me arising out of the incidents on February 15, 2017. The court released on bail with a condition that he not contact the complainant. Committal is not contested on the counts of breaching this recognizance, therefore I will not discuss the evidence in their regard.

[41] The Crown introduced many exhibits, which are comprised of Google maps of the area in which all of the incidents took place. The maps include the relevant locations and buildings. There are many pictures of the complainant’s injuries. There are pictures of the bus shelter where the attack occurred that depict blood and hair on the ground. There are pictures of a blue ski mask and a blue/green coat and several phones that were seized from Mr. Sampson’s apartment.

[42] For the purpose of the preliminary hearing there’s no need to discuss these exhibits in detail. Suffice to say that they serve as visual aids to fill in the witnesses’ accounts of the events.

[43] There is a picture taken from a surveillance video of the lobby of 250 Cosburn Avenue, which depicts Mr. Sampson wearing a blue jacket on the day in question at 4:24 PM. This time is conceded by the parties to be 45 minutes fast.

[44] The defence admitted that the person depicted in the picture and in the surveillance video is Mr. Sampson.

[45] For the purpose of the preliminary inquiry it is not necessary to discuss the arrest of Mr. Sampson in apartment 208 at 250 Cosburn Avenue.

[46] On February 17, 2017, the police searched Mr. Sampson’s apartment and found a blue and green jacket in the closet. Ofc. Burtin testified that the jacket was very clean; as if it had been washed recently.

[47] A medium light blue ski mask was found in the closet of the bedroom. Seven cell phones were seized.

[48] Ofc. Sirbos testified with regard to the investigative work that he did at 250 Cosburn Avenue. It is not necessary to discuss his evidence for the purpose of the preliminary hearing. However, I should mention that he took a statement from a woman named Joni Scott, who was Mr. Sampson’s common-law partner. A voir dire was held with regard to the admission of this statement. However, in the end all counsel agreed that the statement was not necessary for the purpose of the preliminary hearing and therefore, I should not make a ruling with regard to it.

[49] The complainant’s daughter testified with regard to the breach of recognizance charges. Since committal is conceded on these charges, it is not necessary to discuss her evidence.

[50] The test with regard to committal to stand trial after a preliminary hearing is set out in United States of America v. Sheppard (1976), 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424 at 427:

… the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, … required to commit an accused person for trial in any case in which there is admissible evidence, which could, if it were believed, result in a conviction.

[51] In Arcuri v. The Queen 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) @ Para. 25 the court held that:

“The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established… (Para. 23) (Emphasis Added)

[52] The court said that in cases such as these,

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. (Para. 23) (Emphasis Added)

[53] Guilt does not have to be the only reasonable inference from the evidence: Arcuri at para. 25; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, 27 C.C.C. (3d) 97.

[54] The mandate of the preliminary inquiry justice requires the justice to consider the whole of the evidence, including any defence evidence: Arcuri (supra) @ Para. 32.

[55] A "scintilla" of evidence is enough to justify a committal to trial at a preliminary hearing: Re Skogman and The Queen, 13 C.C.C. 161 @ p. 173.

[56] At the preliminary hearing stage, any doubt concerning whether there is sufficient evidence to commit an accused to stand trial should be resolved in favour of the Crown: Ex Parte Hill 1970 Vol. 1969 CanLII 491 (ON SC), 2 C.C.C. 264 @ 272.

[57] The following evidence is relevant with regard to the drawing of inferences for the purpose of the Sheppard test in this case.

(1) Mr. Hafeez and Mr. Sampson knew each other. Mr. Hafeez had Mr. Sampson’s phone number.

(2) While the complainant was with Mr. Hafeez, he was going outside to talk on the phone repeatedly on the day in question. The complainant said that this was unusual. He did not tell her who he was speaking with.

(3) The complainant heard Mr. Hafeez in the bathroom with the door closed and the water running describing her appearance and the clothes that she was wearing shortly before she left the house.

(4) The masked man and Mr. Hafeez communicated with each other in the front of Mr. Hafeez’s house as the complainant was walking to the bus stop. Mr. Hafeez nodded a “yes” gesture to the masked man.

(5) Shortly afterwards, the masked man attacked the complainant, saying “this is from Brian”, which is Mr. Hafeez’s first name.

(6) Clothing that was described by some of the witnesses as being worn by the masked man was found in Mr. Sampson’s apartment. I grant that the evidence with regard to the colour of the mask is not certain, however its colour does conform to one of the witnesses’ description of it.

(a) In addition, a blue/green coat was found in Mr. Sampson’s apartment. The complainant described the masked man as wearing such a coat. The crossing guard said that it was blue.

(b) The witness that followed the masked man in his car said that the man wore a blue coat and a blue ski mask. He saw him starting to take off the mask. He followed the masked man to the building where Mr. Sampson lived.

(7) There is a picture from surveillance video of the lobby of the building where Mr. Sampson lives that depicts Mr. Sampson wearing a blue jacket on the day in question just after 3:30 PM.

[58] Based on this evidence, I find that there is a reasonable inference that Mr. Sampson and Mr. Hafeez conspired to commit an assault on the complainant and that they committed an aggravated assault on her.

[59] After considering all of the evidence, the above jurisprudence, and counsel’s submissions, I find that the Crown adduced sufficient evidence to pass the Sheppard test with regard to both Mr. Hafeez and Mr. Sampson on count one: that they conspired together to commit an indictable offence of assault on the complainant, and on count two: that they committed an aggravated assault on the complainant.

[60] They are both committed to stand trial on these offences.

Released: March 1, 2019

Signed: Justice J. W. Bovard