Court Information
Ontario Court of Justice
Date: December 9, 2019
Court File No.: Halton 18-1036
Between:
Her Majesty the Queen
— and —
Maurice Mullings
Before: Justice Lesley M. Baldwin
Heard: August 27, 28, 2019 and October 21, 2019
Reasons for Judgment Released: December 9, 2019
Counsel
E. O'Marra — Counsel for the Provincial Crown
K. Sharma — Counsel for the Defendant Maurice Mullings
Judgment
BALDWIN J.:
Charges
[1] Maurice Mullings is charged with 4 Criminal Code offences as follows:
(1) That on or about the 24th day of March in the year 2018, at the Town of Oakville, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did, in order to evade the peace officer, fail without lawful excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code;
(2) And on the same date in Oakville, did operate a motor vehicle on a street in a manner that was dangerous to the public, contrary to Section 249(1)(a) of the Criminal Code;
(3) And on the same date in Oakville, did operate a motor vehicle on a street in a manner that was dangerous to the public, contrary to Section 249(1)(a) of the Criminal Code;
(4) And on the same date in Oakville, having control of a vehicle that was involved in an accident with a vehicle at Post Road and Oak Walk Drive, and with intent to escape civil or criminal liability, failed to stop his vehicle, give his name and address, and offer assistance where a person has been injured, contrary to Section 252 of the Criminal Code.
Preliminary Matters
[2] After a thorough review of all the evidence, I have determined that the location of the accident and fail to remain occurred at Ravineview Way just west of 8th Line in Oakville.
[3] Count #4 is therefore amended to accord with the trial evidence as no prejudice is caused to the Defence in my doing so. Both Crown and Defence counsel missed it.
[4] The Crown proceeded summarily.
[5] On consent the Defendant was arraigned on a Provincial Offences Act information charging 2 counts as follows:
(1) That on or about March 24, 2018, at the Town of Oakville did operate a motor vehicle without first being the holder of an operator's licence for the current year, contrary to Section 32(1) of the Highway Traffic Act;
(2) That on the same date in Oakville, did drive a motor vehicle and approaching a stop sign at the intersection, did fail to bring the said vehicle to a full stop immediately before entering the intersection, contrary to Section 136(1)(a) of the Highway Traffic Act.
[6] At the end of the trial evidence, count #1 on the POA information was withdrawn by the Crown for lack of evidence on the issue. (I note that on day #2 of the trial, Officer Hurley testified that upon arrest Mr. Mullings only produced a health card. "To the best of my recollection, he's never been licenced in Ontario.")
[7] Charter Applications and voluntariness voir dires were dealt with in a blended fashion and rulings were made during the course of the trial.
[8] At the end of the trial, the only issue was identification. All the offences listed occurred, but was Mr. Mullings the driver of the vehicle involved in all the offences?
[9] There is no issue that the same vehicle was involved – a 2018, 4 door black Toyota Camry – plate CEHC201 – registered to Budget Car Rental and rented to Sujae McNeil. The car had been picked up from 5990 Airport Road in Mississauga and was to be returned March 19, 2018, which is 5 days before the offence date. Sujae McNeil plays no part in the trial evidence.
[10] The Crown's evidence on the issue of identity is circumstantial and therefore a thorough analysis of the issue is required to guard against any of the dangers of mistaken identification. (Reference R. v. Bao, [2019] Ontario Court of Appeal, 458; R. v. Amofa, [2019] Ontario Court of Justice, 705; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.))
The Evidence
The Beginning
Testimony of Officer Jason Hurley and Video Clips of the Camry Speeding Through the Walmart Super Centre Mall – Exhibit #4
[20] It was a Saturday at 5:14 pm. The road and weather conditions were good and it was sunny.
[21] Officer Hurley was on duty in uniform driving an unmarked black Dodge Caravan.
[22] Officer Hurley testified:
At this particular afternoon I was conducting traffic enforcement in that area, and I was heading back to 20 Division, which is located at 95 Oak Walk Drive. I was travelling northbound on Post Road, approaching the four-way intersection at Oak Walk Drive. The northbound and southbound has no traffic control as it's a fairly new development, and Oak Walk has stop signs for eastbound and westbound that lead into the Post Road housing complex.
As I was approaching the intersection, I noticed a black Toyota Camry go eastbound through the stop sign into the intersection. As I observed that I had to brake suddenly to avoid colliding with this vehicle. I made a clear observation of the interior of the vehicle as there was no tinted windows, and made observations of the driver of the vehicle.
Regarding the stop sign:
No…
Regarding observations of the driver and passenger:
Yes. Like I had mentioned, Your Honour, I had a clear view of the interior of this car. I noticed a male black driver in his late twenties. He had black hair, which were in cornrows, and he was wearing a black sweater. There was a front seat male passenger who was also male black, however, it was difficult to see anything of his face as he had his right hand up, and it appeared like he was on his phone. I did note that he did have black hair, what appeared to be black hair, and a black sweater or shirt.
Regarding comparison of hairstyles:
Yes, it did not appear that the passenger had cornrows or braids, or anything like that in his hair, whereas when my vehicle came to a stop it was directly in line with the passenger side window of the vehicle, so I was able to see straight in at the driver...
Regarding the pursuit:
As I abruptly come to a stop, that vehicle slowed, and then continues eastbound on Oak Walk Drive. I pulled in behind it following it in the van, and I ran the licence plate that I observed on the rear… This vehicle made a quick right turn, and it was at that intersection is when I activated the emergency equipment of the vehicle. The vehicle immediately slowed, but also began swerving to the left and right. When it was making those sudden movements I activated the siren of the van…
Regarding acceleration through Walmart:
As soon as I activated the siren, Your Honour, the vehicle slowed down, almost to a complete stop. I was coming to a stop and was about to exit my vehicle when suddenly the vehicle took off at a high rate of speed southbound on Oak Park Boulevard. This time of the day there are parks and there's a plaza, the Walmart Oakville Super Centre right next door. [my] lights were continually on. I reactivated the siren in an attempt to signal this vehicle to stop.
At Hays Boulevard the vehicle continued at a high rate of speed through that traffic control intersection making a left turn onto Hays Boulevard, which enters the main entrance of the Walmart. This vehicle accelerated fully eastbound…
…into the Walmart Supercentre.
At this point, Your Honour the vehicle was travelling at such a high rate of speed, I was at minimum 100 meters away from myself [sic] and he was accelerating towards the main entrance of Walmart. At this time of the day there was dozens of people and children entering and exiting the Walmart. By the time that I had made my left turn onto Hays Boulevard, I could observe the tail lights of that vehicle had already reached the next road which I believe is Taunton... By the time I'd made the left, Your Honour, that vehicle had already sped at between 80 and 100 kilometers through the main entrance of Walmart...
Surveillance Video Played
MS. O'MARRA: I'll pause it just a few seconds in. You agree with me Officer, that you can see various vehicles and people. You can't recognize them but people moving through the entrance?
EXHIBIT NUMBER 4: Walmart surveillance disk - produced and marked.
I cleared that area and provided the information over the police radio in regards to that vehicle that had taken off and the action that was taken, and myself and other officers in the area began to check the area for that vehicle.
Cross-Examination of Officer Hurley
Q. This vehicle was some distance away from you; is that correct?
A. No. When they -- when the passenger window was lined up with my direct line of sight, I was no more than a couple feet from my front bumper to his vehicle. I do that on purpose in that situation to identify who is in there and to get their attention…
Q. So the individual with the corn rows had sunglasses on his face; is that correct?
A. At that moment, yeah.
Q. Okay. When Mr. Mullings was arrested, he wasn't wearing sunglasses; is that correct?
A. I don't believe he was wearing sunglasses, no.
Q. You didn't find any sunglasses on him; is that correct?
A. Not that I recall, no.
Q. And you'd agree that the sunglasses were obstructing your view of this person's face; is that correct?
A. Just his eyes, yeah.
Q. But that's about a third of his face; is that correct?
A. I don't recall -- I don't really recall the sunglasses, so I can't say if they were tiny sunglasses or large, but yeah, a portion of his eyes were covered for sure.
Q. You didn't see any facial hair; is that correct?
A. Not that I recall, no.
Q. You'd agree that you've never seen Mr. Mullings before arresting him. I mean let me just put it this way. Mr. Mullings is a stranger to you; correct?
A. As far as I know he is. I don't know if in my 15 years I've made contact with him but I don't recall.
Q. And Mr. Mullings, you'd consider Mr. Mullings black.
A. Yes.
Q. That's how you described him. And as the vehicle was travelling by you, the windows were up on the vehicle?
A. Yes.
Q. I'm going to suggest to you, Officer, that you only had a couple of seconds to look into the vehicle; would that be correct?
A. Correct.
Q. Maybe two to three seconds?
A. Yes.
Q. You'd agree with me, Officer, that corn rows are not necessarily that uncommon of a hair style for black people?
A. I'm -- I'm not certain, possibly.
Q. You've seen it before; right?
A. Yes, many times.
The Middle
[23] At 5:20 pm, 6 minutes after the first sighting of the Camry, the car crash occurred.
Testimony of Officer Grant
Sure, so when I arrived on scene the vehicle that Mr. Mullings was apparently driving, it had crashed into another vehicle head-on. The airbags were deployed at the time in the first vehicle. The second vehicle was a mini-van. That was red in colour, and both vehicles had damage to it, so both front ends of both vehicles, front bumper had damage to it. The first vehicle which is the black Toyota Camry had more significant damage than the than the mini-van. Like I said before, the airbags were deployed on the Toyota Camry.
The doors were left open. As part of the call we were informed that the occupants of that vehicle had fled from the area leaving -- so they left pretty quickly and left the doors open on that vehicle, and later on before -- before getting the vehicle securely towed away, we had done a search on the vehicle to see if there was anything outside…
Regarding vehicle positions:
Sure. So as I said before D1 is the Toyota Camry; D2 is the -- the Honda mini-van. The vehicle was driving southbound on 8th Line, and had turned westbound onto Ravine Way. However, the way how the D1's vehicle was positioned, it's driving -- it landed into oncoming traffic, hence the collision onto D2's vehicle. So D1's car's is actually placed on an angle facing the opposite direction, so it's facing oncoming traffic. So it is taking part of the roadway of the eastbound lane, and D1 and D2 both have front end damage to both bumpers, and D1's vehicle also resulted in the airbags being deployed based on the impact of the -- of the collision.
Search of Camry:
So I did make reference to the fact that there was clothes. We located several clothes inside the trunk, some loose change, a laptop, music keyboard.
Photographs showing extensive damage to both vehicles were marked as Exhibits.
Regarding speed limit:
…but 8th Line and Ravine Way it should be 50 kilometers per hour.
Regarding intersection control:
It's just controlled by stop signs. There's no -- there's no traffic light signal at this intersection, so even in my diagram on page 31, Ravine Way once you get to the intersection of Ravine Way and 8th Line there is a stop sign at that corner -- at the corner of that intersection. There's no stop sign heading north or south on 8th Line.
Q. So the traffic on Ravineview Way approaching 8th Line that has the obligation to stop, north/south can just continue on 8th Line?
A. That's correct.
Testimony of Jing Nan Yu (Victim)
Examination in Chief:
Q. I was slowing down to a stop sign…
A. A car was coming down 8th Line and made a wide turn into my side of the road and collided with my car.
Q. I paused for a moment and then I got out of the car to talk with the other person, and him and another person fled the scene…
Q. Male…
A. Two.
Q. And do you have any recollection of their skin colour or hair colour?
A. Dark haired and dark skinned.
Q. And you describe them in your statement as black or Middle Eastern?
A. Correct…
Q. Okay. And so at the time you were 22?
A. Yes.
Q. And you thought they were about the same age as you; right?
A. Yes.
Q. Okay. And what was your speed?
A. Twenty to 30 kilometers an hour.
Q. Okay. And what was your -- what road were you on when the accident happened?
A. I was on Ravineview Way.
Q. Okay. And at the moment of the collision what did you hear and what did you feel?
A. I heard the sound of cars colliding and then I felt the airbag pop.
Q. And how did you feel emotionally?
A. I was shocked at first. I didn't really feel anything too much in the beginning.
Q. Any injuries to your -- any part of your body?
A. Yes, I hurt my hand.
Q. And tell us about that?
A. I think I sprained my hand, and then I went to physiotherapy for a year…
Q. Yes, I went to the hospital…
Q. Were you able to take any evasive action?
A. No.
Q. Do you have any recollection or sense of the speed of that other vehicle?
A. About 50 kilometers an hour.
Q. And what did the two males do after the collision? Can you go back and take me through that?
A. Right. So they stopped the car and then they -- one of them grabbed a bag, and then ran down Ravineview Way towards the direction that -- well past the direction that I was going.
Q. Do you have any recollection about what part of the vehicle the bag was taken from?
A. I believe it was a black -- the back seat.
Q. Okay. Did you try to say anything to one or both of those men?
A. No.
Q. Did they try to say anything to you?
A. No.
Q. Did you see the direction that they went?
A. West on Ravineview Way.
Q. And can you tell me is that a residential area, a corporate area?
A. It's a residential area.
Q. Okay. And did the men leave the area on foot or did they get into a vehicle?
A. They left on foot.
Q. Okay. And can you give us a sense of -- of their relative speed, were they walking? Were they running? In between; some sense of that?
A. I would say they were sprinting.
Cross-Examination by Mr. Sharma:
Q. And it was -- I, I take it there was some significant damage on your car?
A. Yeah, it was totalled.
Q. So you indicated that you were in shock; right...
A. Yeah.
Q. ...for some time? And your airbag had gone off?
A. Yes.
Q. Did the airbag make contact with you at all?
A. Yes, it did.
Q. So the airbag made contact with your face?
A. With my hand and my arm.
Testimony of Kamil Wozinski (Witness)
Examination in Chief:
Q. Okay. And at the time of this incident were you walking or in a vehicle?
A. I was in a vehicle.
Q. Were you driving?
A. Yes, I was.
Q. And what type of vehicle were you in?
A. I was in a SUV, a Honda CRV…
Q. Okay. So I understand that you were proceeding at about 30 kilometers an hour on Ravineview Way towards 8th Line?
A. Mm-hmm.
Q. Okay. And what happens from there?
A. So me and my mother were driving because we wanted to go to Whole Foods to get some food, and as we were driving, and then I see -- hear this massive bang, and right -- what happened was we see like a black Toyota and a red mini-van that got -- that occurred as an accident. And as we stopped to kind of examine the situation we see two gentlemen get out of the car and look into the back of the Toyota. They grab some backpacks and they started running towards us.
Q. I'm going to ask you to pause there.
A. Okay.
Q. So two men got out of their vehicle and you said they went to the back of the Toyota?
A. Yes.
Q. And was that the back, like the backseat, or back like a trunk area?
A. Backseat.
Q. Okay. These men, were you able to recognize their skin colour or hair colour?
A. Skin colour and hair colour, yes.
Q. Can you tell me about that, please?
A. Black skin and black hair.
Q. And the -- did you notice anything about the hair of either of those men?
A. Yes.
Q. Tell us about that.
A. One of them was wearing, I believe, they're called corn rolls. The other gentleman I do not recall.
Q. So I'll call man number one the one with the -- your word was corn roll?
A. Yes.
Q. Okay. And I'll call man number two the one who you don't remember his hair; okay?
A. Exactly.
Q. Okay.
A. Perfect.
Q. And do you remember the colour of anything they were wearing on their -- their torso or on their legs?
A. I do not remember the exact colours, and it would be very hard to tell -- recall from at this point.
Q. Would it refresh your memory to look at what's in your statement?
A. Yes, please.
Q. Sir, it's a short statement, if you could just yourself give this a read, and I'll re-ask the question; okay?
A. Okay.
Q. So do you remember what you told the police that they were wearing?
A. Yes, I do.
Q. Could you tell us about that please, sir?
A. So from what I remember they were wearing dark tops and light pants. The exact colour I do not remember.
Q. And were both of them wearing the dark tops with the light coloured pants, or only one of them?
A. Both.
Q. Okay. Did you recognize those men?
A. No, I did not.
Q. How many of the men reached in to get a backpack?
A. From where I was positioned I only saw one man.
Q. Do you remember was it man one with the corn rolls or man two who reached in for the backpack?
A. It was the man two.
Q. How many backpacks do you remember seeing?
A. I only saw one.
Q. And do you remember anything about the colour of the backpack?
A. The backpack was black…
Q. Did you see the accident happen or just hear it?
A. So I first heard it, and then when I looked up I saw it, the aftermath.
Q. Can you tell us about that?
A. So the aftermath what I saw was the Toyota, like a bang, and then I see the Toyota's slowly drifting backwards, and then from there I see the two gentlemen get out of the car, grab the backpacks and start heading towards west, along Ravineview Way. They ran right past my vehicle, and we tried to grab photo evidence, but unfortunately our cameras, phones were not working at that time. And then after that, as they were running, I observed, got out of the car, observed, and they took a left on Woodridge Street or Drive.
Q. You have in your statement Woodridge Way.
A. Yes, Woodridge Way. Thank you.
Q. And I understand Woodridge is W-O-O-D-R-I-D-G-E?
A. Yes.
Q. And that -- was that the -- this day the first and last time you saw those two men?
A. Yes, first and last time.
Q. And did you -- I understand that you saw that one of them had sunglasses?
A. Yes.
Q. Was it man one with the corn rolls or the other man who had the sunglasses?
A. I do not remember that exactly.
Q. But just one of them had sunglasses?
A. One of them, yes.
Q. And you also have in your statement that one of them had a scruff of facial hair?
A. Yes.
Q. And was that -- the glass -- sunglasses and the scruff of facial hair; were they on the same face or do you not recall?
A. I do not recall, unfortunately.
Q. Okay. Could -- did you -- could you tell which car had hit which?
A. From the aftermath of the accident it was challenging, but it did look like from where I was driving, I was on the right-hand side, as well as the mini-van, so it could have -- it seemed that the Toyota kind of swerved in and went into oncoming -- incoming traffic, swerved into our lane.
Q. And that's from the resting places of the vehicle.
A. Yes.
Q. Okay. Prior to hearing that bang had your attention been drawn to the red mini-van at any point?
A. Yes.
Q. Why?
A. Because we were driving at a slow pace, and I know there's a stop sign ahead, so I like to judge my distance, so I stopped before the vehicle.
Q. Sorry?
A. So I like to stop before it, so -- because there was a stop sign approaching, so I like to stop no -- stop a proper distance from the Toyota -- I mean, sorry, from the mini-van.
Q. Okay. And did you -- did you see the person who was in the red mini-van?
A. Yes, I did.
Q. And then you recognized her?
A. Yes.
Q. And was it Ms. Yu, Y-U, who's outside?
A. Yes.
Q. Okay. And do you recall -- did you offer her any medical assistance?
A. Yes. So first thing she got out of the car and told me to -- she wanted to stop those gentlemen that are running away, but then I just told her to relax. She was in a bit of a shock. Told her that I know first aid, and at that point I also called 911.
Q. Okay. And you remained on the scene to speak to police?
A. Yes, I did…
In Cross-Examination:
Q. Okay. You gave this statement approximately -- well, how long did it take the police to arrive after the car accident?
A. After I called 911 it was within minutes.
Q. Within minutes, okay.
A. Mm-hmm.
Q. And you remember how many police officers showed up?
A. When I first called 911 the first officer came, and then he went -- told them where the people ran off, and then he started chasing them, and then after that approximately three officers.
Q. How long did you speak to Ms. Yu for before the police officers came out?
A. Before the police officers, she -- she got out of the car and I tried to calm her down, told her to not sit on the step on the -- on the road so that -- 'cause she seemed to be in a bit of a shock. Again, I can't tell you exact time, but I did speak with her at the same time that I was contacting 911.
Q. Okay. Why would you think that she was in a state of shock?
A. Because she was jittery, shocking, panicking, really heavy breathing, and especially after seeing the vehicle, the airbags also were deployed from my....
The End
[24] At 5:58 pm Officer Jibrail came upon Mr. Mullings, the spontaneous utterance was made, and he was arrested by Officer Hurley at 5:59 pm – 38 minutes after the car crash and fail to remain - 45 minutes after he had first been observed.
Testimony of Officer Hurley (Continued)
Yes. At approximately 5:27 p.m., I attended the area, a dead end of Dellbrook and next to a pond…
…Dellbrook is found just underneath that and it runs south off of Postridge Drive. Now at the south end of Dellbrook, it is a dead end and you'll see in the east side of Dellbrook is a ravine which is a creek and a wooded, heavily wooded, area which is where we believed the suspects would travel to…
the pond starts at the south end, at the dead end of Dellbrook and Riverstone Drive which is just south of that is where the -- the sidewalks and the roadway continues. It's a fairly large pond. So I was set up in that area which was just south of Ravineview Way and 8th Line which you can see at the top right of this map…
I was sitting in this area in an unmarked black van making observations of people walking on this path. At approximately 5:58 p.m., I observed a male black, approximately six foot, thin build, wearing all black clothing on his cell phone and from the distance, he appeared to be the driver…
Q. Did you say anything?
A. No.
Q. Why?
A. I didn't want to -- he was too far away from me to actually say anything to him and I didn't -- if it was the suspect, I didn't want him to gain ground and start running away…
So this male that had come out of the woods, if you call it, or ravine, was walking in a southeast direction on the path. At this point he was on -- I was on the north side of the pond and he was now on the south side of the pond. So I used radio police -- radio communications to update units that were in the area and to attend on the south side in order to cut him off… Constable Jibrail attended the southwest side of this ravine and pond and I exited my vehicle and ran on foot around the opposite side of the pond to come up to the rear of this male that had exited the ravine.
Q. What surface were the male's feet on? Road, sidewalk, ravine, gravel path?
A. All of the above. He was coming out of, like, a wooded area which was mud, gravel and then coming up to sidewalk and grass and then asphalt where he was ultimately stopped.
As I was able to catch up on foot, I immediately recognized this male as the driver of the vehicle. At 5:59 I placed him under arrest for flight and dangerous operation of a motor vehicle and he was identified as -- with an Ontario photo health card as Maurice Mullings with a date of birth of 1989 March 17th. Now as I made observations to his clothing and such, he wasn't -- to my recall, he wasn't especially muddy but it was obvious that he had been walking through the ravine as he was dirty and his shoes were dirty which would mean he would've been off the path. There is a groomed, like a fine gravel path in this ravine, but to get from one side of the path to the other, you'd have to go into the, I guess it's plant and dirt area…
Q. Can you take a look at Mr. Mullings as he appears today with his -- in particular with anything on his face and his hair style? And can you compare how he looks today to how he looked when you dealt with him on March 24, 2018?
A. His hair is different. I don't remember him having a beard or anything like that. So yeah, there's some differences.
Q. And how is his hair different today versus that day?
A. It's in braids today and before it was in corn rows...
Testimony of Officer Jibrail
Examination in Chief:
A. I was dispatched to this incident at 5:39.
Q. And where were you?
A. I was working in a uniform patrol capacity in the Town of Oakville. I believe when I was dispatched I was near the police station, so near the Trafalgar Road and Dundas area.
Q. And were you operating a cruiser?
A. I was.
Q. And was it marked or unmarked?
A. I'd have to check my notebook at the beginning of my shift. That's -- I had vehicle 6158, that's one of the unmarked grey Taurus'.
Q. And what was your understanding of the nature of the call and where you were headed?
A. My understanding the nature of the call was, in my notes I have "DR24", that's Police Constable Hurley. I had noted that he had a vehicle take off from him from a traffic stop…
Q. And what was the description that you were provided that you were looking for?
A. I was told there were two male occupants, male black. I know that I was told the driver has cornrows, so one was wearing a black hoodie and light pants, with a backpack. And the other male had a black hoodie; black pants with cornrows; and had a thin build. That's what I have noted…
A. I have at 17:58 I was advised one of the males was possibly on the south side of the pond, at the dead end of Dellbrook, and that's when I drove south down Dellbrook where the road ends. If you see on the map on the same exhibit 2 or (b), in this case, Dellbrook ends. It's a circle at the end there.
Q. And can you tell us is this a corporate or a residential area?
A. It's a residential area.
Q. And can you describe between -- like on the map we can see Trafalgar Road, Penrose, Dellbrook, and then Ravineview Way and 8th Line, between Trafalgar and 8th Line, in that area, is there any green space, all houses, can you talk us through that?
A. Yeah, so there's numerous trails and ponds, and, you know, there's green space. There's -- obviously there's homes, pathways, walkways.
Q. So -- and then, so you said that you were advised that there was one individual, possibly, which side of the pond?
A. I have here noted on the south side of the pond…
A. I drove towards the end of Dellbrook, right where the circle is, where the roadway ends, and there actually just south, or I guess you could say -- yeah, south, just south of that is where there's an entrance into the -- the green space there, there's a trail…
A. And when I got out of the car I entered the trail, and I started walking, it would have been west, and I observed a male matching the description of the individual with the cornrows. I observed a male walking. At the time I didn't know it was Riverstone, but it was Riverstone Drive, walking westbound on Riverstone Drive towards Trafalgar Road.
Q. And tell us about his build and his hairstyle?
A. It was a black male, thinner build. He had cornrows, wearing black, and I had noted that he was actually speaking on his cell phone…
A. Yeah, I have here noted that he was approximately six-one.
Q. And was tell us about his manner of moving or breathing?
A. Upon approach I did note that he did have heavy breathing. I noted that he was covered in leaves. His shoes had fresh mud on them. His hair was also covered in leaves and brush.
Q. And anything else to do with -- any other physical observations of him?
A. No. I just have the -- the breathing, sweating; heavy breathing sorry; sweating, fresh mud, and then some of the leaves and brush on his hair, and clothes.
Q. What hand was his cell phone in?
A. It was his right hand.
Q. And where was it positioned with -- the cell phone with regard to his body?
A. It was just above his shoulder area against his ear. He was talking in -- into the phone.
Q. And what happened next?
A. Upon approach I identified myself, and I have here that he made an utterance in my notebook.
Q. And what did he say?
A. He said, "Sorry, I put you guys through this."
Q. Is that the gist or is that exactly what he said?
A. That's exactly what he said.
Q. And do you have that noted in any special way in your notebook?
A. I have quotations put in in my notebook, and that's it. I just have, he put his hands up and said, "sorry, I put you guys through this."
Q. And with regard to your notetaking practices, what does it mean for you when you put quotations before -- when quotations surrounded the words?
A. It's a word for word of what he said. It's not just a gist of what he said.
Q. Did you say anything to him before he put his hands up and said what you've indicated he said?
A. I would have approached, and I said, "Police, stop." And he wasn't running, he was walking. And then, like I said, he had his hands up to his phone. At this point I was right to his right side, and he turned over, and said to me, "I'm sorry to put you guys through this."
Q. Did you have any eye contact with him when he said that?
A. Yes. I was standing right in front of him at this point, to the -- or to the right of him.
Q. Is -- where is the phone with regard to his ear when he says, "I'm" -- when he says, "Sorry, I put you guys through this"?
A. It -- the phone's on his ear, like he, he's holding it with his right hand, and as I stated he was speaking into it. Whether he was on the phone or not, he was speaking into it.
Q. And ultimately, did you detain that male?
A. When I actually asked him for his ID -- I asked him if he has any identification on him. I have noted here that he replied he didn't, and it was almost immediate. My interaction with him was fairly brief because as soon as I approached, I made myself known; he made his utterance to me. I asked him if he has any ID on him. He said "no", and at this point it was Officer Hurley that attended our location and he immediately advised me that this male I'm off with was actually the driver of the motor vehicle, and that's when he was placed under arrest.
Q. So who physically puts him under arrest?
A. I believe it was Officer Hurley.
Q. And you said that -- sorry, throughout your observations of the male as he's moving, did he ever increase his pace or was it walking the whole time?
A. No, he was -- he was walking, actually. Even when I first observed him walking on Riverstone, and I was still in the brush area because if was March, it wasn't heavy -- there wasn't any heavy brush or leaves on the trees, I could see right through, and he was just walking, and he was on his phone, and -- I actually ran to catch up to him.
Q. And how long did that take?
A. Like 20 seconds, if that.
Q. And you've pointed in the courtroom, the individual who you've told us made that utterance, do you see them in the courtroom today?
A. Yes.
Q. Is that Mr. Mullings?
A. It is.
Q. When he made the utterance that you've told us about, is he stationary or still walking?
A. I actually have here, I've noted that upon my initial approach and his utterance that he actually continued walking.
Q. In the same direction, westbound?
A. Yes.
Q. Prior to him making that utterance did you have your hands on him at any point?
A. No…
Examination by Crown:
MS. O'MARRA: Can you -- can I ask you, Officer, to take a look at Mr. Mullings, as he appears in the prisoner box today, and you -- can you tell me about the appearance of his face and his hairstyle today as compared to this date back in 2018?
A. Fairly similar. I believe on that day his cornrows were back, if I'm not mistaken, and then same thing, but I think his facial hair was a bit shorter, as well.
Q. Today or then?
A. Then, so today his facial hair is longer.
Cross-Examination:
A. Yes.
Q. Is it fair to say that he could have been talking into the phone?
A. Yeah, like I said, I -- whether he was on his phone or not, I'm not sure, but I know it was against his ear, and he was speaking into it.
Q. So it's fair to say he could have made that utterance to someone on the other line of that phone; right?
A. Yes, but as I also mentioned that he turned towards me, after I identified myself, and he still had the phone to his ear when he said, "I'm sorry, I put you guys through this." He was looking at me…
Questions by the Court:
THE COURT: I just have one area to clarify that I may have misheard, and of course you both can weigh in if you want to. It was in your examination in-chief, Officer Jibrail, and it's about just before the utterance, "Sorry, I put you guys through this." Did I hear correctly, he put his hands up, and then said, "Sorry, I put you guys through this"?
A. Yeah, that -- that's what I have noted here.
THE COURT: So hands up.
A. I don't know if it was one or two hands, I just -- I do remember, though, he had one hand here. Whether he took it off his phone...
THE COURT: And you're....
A. ...and did one of these, sorry....
THE COURT: You've gesturing with your right hand up...
A. Yeah.
THE COURT: ...with the phone.
A. Yeah, so if I'm not mistaken, he was walking and I approached, and he kind of -- he still had his hand up here, and he did one of these, and said, "Sorry, I put you guys through this."
THE COURT: Okay.
A. But I do remember his right hand was still up towards his ear. Whether it was pressed on his ear or not, I -- I do know it was near his ear, though, and his phone was still in his hand.
THE COURT: Either counsel want to weigh in on that because I heard about the phone near the ear and then both hands up, and I needed to clarify.
MR. SHARMA: I....
MS. O'MARRA: Nothing from the Crown.
MR. SHARMA: I have nothing really to ask this officer, yeah. I....
THE COURT: That's fine. I just wanted to make sure...
MR. SHARMA: No, no, Your Honour...
THE COURT: ...I understand.
MR. SHARMA: ...I have no issue with your question.
Fingerprint Evidence
Testimony of Officer Nancy Naud – Forensic Identification:
Q. You provided me with a bound -- two bound copies of analysis R100.
A. Yes.
Q. And that is to do with an analysis of a Canada Dry two-liter bottle of ginger ale.
A. That's correct.
MS. O'MARRA: If this could be the next exhibit Your Honour?
THE COURT: Yes.
CLERK REGISTRAR: Crown Exhibit Number 6.
EXHIBIT NUMBER 6: Report of Analysis of Canada Dry ginger ale bottle - produced and marked.
- The unknown impression R100 was deposited by Maurice Mullings' left index finger.
MS. O'MARRA: Q. And you also authored fingerprint analysis report, Analysis R101, which was an analysis of a plastic bag; correct?
A. That is correct.
Q. And do you adopt the contents of both reports as part of your evidence?
A. Yes, please.
MS. O'MARRA: And if this R101 can be the next Crown exhibit?
CLERK REGISTRAR: Crown Exhibit Number 7.
EXHIBIT NUMBER 7: Report of analysis of plastic bag - produced and marked.
- The unknown impression R101 was deposited by Maurice Mullings' right thumb.
Regarding Fingerprints on Steering Wheel:
…but I have not come across a vehicle with the exception of a high end vehicle with wood grain on a steering wheel that has that nice smooth surface. The majority of the steering wheels that I've come across that I have analyzed, and I believe in this case, it's that molded plastic or that rubberized plastic and it does not lead well to fingerprints.
Summary of Evidence on Identification
1. Officer Hurley at 5:14 p.m. – The Driver:
- Male driver
- Black skin
- Black hair in cornrows (not uncommon for black people)
- Age late twenties
- Wearing black sweater or shirt
- Wearing sunglasses
- No facial hair
- Approximately six-foot
- Thin build
The Passenger:
- Male
- Black skin
- No cornrows or braids in short hair
- Face obstructed by cell phone to his ear
View:
- Clear unobstructed
Period of View:
- 2-3 seconds
2. Jing Nan Yu at 5:20 p.m. – The Driver:
- Male
- Dark hair
- Dark skinned
- Black or Middle Eastern
- Age – in his 20's
- "They" took a black bag from the back seat
The Passenger:
- Same as above
3. Kamil Wozinski – The Driver:
- Male
- Black skin
- Black hair in cornrolls
- Dark clothing on top, light coloured pants
The Passenger:
- Male
- Black skin
- No cornrolls in hair
- The passenger took black backpack from rear seat
*one had sunglasses – can't say which.
4. Officer Jibrail – Maurice Mullings @ 5:39 p.m.:
- Male
- Black skinned
- Black hoodie
- Black pants
- Black hair in cornrows
- Thin build
- Height 6'1"
- Breathing heavily; sweating; covered in mud, leaves and brush [head to toe]
5. Fingerprints of Mullings found in 2 items in the car's trunk.
6. The Utterance – "Sorry I put you guys through this".
Position of the Parties
[25] Defence submits that there is no link to prove identification beyond a reasonable doubt and places great emphasis on the fact no black bag or sunglasses were found on Mr. Mullings.
[26] The Crown submits that considering all the evidence in totality they have proven this case beyond a reasonable doubt.
Analysis and Conclusion
[27] I have applied R. v. W.D. in assessing all the evidence heard in this case.
[28] Based on all the evidence the driver was:
- Male
- Black skinned
- Black hair in cornrolls
- In his early to late twenties (Note: Defendant's date of birth from the information is March 17, 1989)
- Wearing a black top
- Approximately 6 feet tall
- Thin build
- Wearing sunglasses at time of first sighting
- Not the black male passenger with short hair who removed the black backpack from the rear seat
[29] Mr. Mullings was not just out for a stroll when Officer Jibrail came upon him.
[30] It was obvious that he had been running through the rough terrain and was covered in its debris; his shoes, clothes and hair. He was breathing heavily and sweating.
[31] His spontaneous utterance to Officer Jibrail who shouted 'stop police' was an admission of guilt. No other reasonable inference is available on the evidence. "Sorry I put you guys through this" with his hands up. Mr. Mullings might have well just said 'you got me'.
[32] Sunglasses are easy to discard and do not change my view on identification.
[33] Based on all the evidence and being alert to the test in R. v. W.D. and the instructions of the Supreme Court of Canada in R. v. Villaroman (supra) a finding of guilt is registered on all 5 counts.
Released: December 9, 2019
Signed: Justice Lesley M. Baldwin