ONTARIO COURT OF JUSTICE

CITATION: R. v. Abdi, 2021 ONCJ 454

DATE: 2021 08 26

COURT FILE No.: Kitchener 20Y157

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

IYLES ABDI

Before Justice W. G. Rabley Heard on August 23 and 24, 2021

Reasons for Judgment released on August 26, 2021

B. Thomas ………………………………………………………….counsel for the Crown

D. Condo ……………………………………………counsel for the accused Iyles Abdi

RABLEY J.

1. Iyles Abdi is charged with Robbery and breaching the curfew term of his bail. The Crown alleges that he was with two other males when they robbed Alice Abarowei of cash and the key to her rental vehicle on April 19th, 2020. Mr. Abdi pleaded not guilty to the offence. The Crown called Ms. Abarowei as well as 3 police officers. Other evidence was introduced by way of admission establishing that the gun found by the police was a firearm and that Mr. Abdi was on a form of bail at the time of the robbery.

2. The Defence elected to call no evidence and argued that the Crown has not proven beyond a reasonable doubt that Mr. Abdi was one of the individuals involved.

FACTS

3. The Crown called Alice Abarowei as its first witness. Ms. Abarowei was working as an escort on April 19th and had received a request from someone known to her as Rico to meet in a parking lot at a building in Waterloo.

4. Ms. Abarowei had Rico’s phone number and telephoned him to advise that she had arrived. He told her what part of the parking lot to drive to and she did so. At that point, he got into the front passenger seat and they began to chat.

5. Rico advised that he would like a friend to join them. Ms. Abarowei wanted to talk about more money. The friend arrived about 3 minutes later and sat in the back seat behind the driver. Å gun was then put to Ms. Abarowei’s right temple from behind and Rico began demanding that she give him her money. Rico searched the glove compartment box and then the console finding approximately $830 in cash. He then took the key to the car and demanded Ms. Abarowei’s phone. She refused and exited the vehicle saying that they would have to kill her before she would give it up. The males got out and fled towards a car that Ms. Abarowei hadn’t previously seen. They got into that vehicle and fled the scene.

6. Ms. Abarowei called the police and provided them with the address of 195 Erb Street West in Waterloo which was where she had previously spent time with Rico. She told the police that Rico was one of the men who had robbed her and described all three individuals involved as black males. The police responded to the Erb Street address within minutes and created a perimeter. The canine unit also responded and a search commenced. Two black males were located a short distance away. Neither of these was Rico who was not apprehended at that time.

7. Ms. Abarowei was asked to describe the person she knew as Rico. She recalled that he was African like a Somalian, that he was short and had curly hair. She could not recall any other details other than he had a baby face. She also recalled that at some point Rico had told her that he had just turned 18 and that before coming to Waterloo he was living in Ottawa.

8. Mr. Abdi is a young black male. He was present during his trial which was conducted with Zoom technology. The Crown asked Ms. Abarowei if she could see Rico on the Zoom screen but the computer she was using was on Speaker view and he was not in one of the three boxes she could see. The Crown adjusted the setting to Gallery view and asked the following questions:

Q. I have changed the setting on your screen. You should be seeing more things now, is that correct?

A. Yes

Q. Do you see Rico in the courtroom?

A. Yes

9. As fairly pointed out by counsel, Mr. Abdi was the only black male on the screen when the question was asked. The others on screen were counsel, a female and myself as the judge.

10. Ms. Abarowei was never asked to explain why she believed Mr. Abdi was Rico. Mr. Abdi’s physical appearance was not described for the record.

POSITION OF THE PARTIES

11. Counsel for Mr. Abdi submits that the evidence of identification in this particular case is so frail that Mr. Abdi should be acquitted. She submits that the Crown case relies upon dock identification made 16 months after the event and that such unreliable evidence does not meet the test necessary to establish guilt beyond a reasonable doubt.

12. The Crown submits that there is ample recognition evidence to prove that Ms. Abarowei knew the man whom she identified as Rico and that there is no question that he was the individual involved in the robbery on April 19th, 2020.

PRINCIPLES TO BE APPLIED

13. The law is clear that in a judge-alone trial, a judge can convict on the identification evidence of a single witness without any further confirming evidence, but that such evidence must be scrutinized closely before being relied on.

14. Unlike many cases, the focus in this trial is not on the credibility of Ms. Abarowei, but rather the reliability of her evidence of identification. The law applicable to the case before me was well stated by Justice Hourigan in R. v. Olliffe, 2015 ONCA 242, in paragraphs 37 to 39 where he said:

[37] Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.

[38] Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.

[39] The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.

ANALYSIS

15. With his usual candour, Mr. Thomas has set out a fair presentation of the Crown’s case in his closing submissions. He argues that by April 19th, 2020, Rico was no longer a stranger to Ms. Abarowei. In the three weeks preceding the date of the robbery, the two of them had met at least six times. Twice they had been intimate for half an hour. Four times, Ms. Abarowei had attended at Rico’s apartment to chill out for about an hour. For approximately three minutes prior to the robbery, Ms. Abarowei was chatting in the car with Rico prior to the friend’s arrival. Therefore, the Crown submits, her identification of Mr. Abdi is reliable because although Ms. Abarowei could not provide much detail of Rico’s description, such was not necessary because the man was known to her. To put it simply, her evidence can be relied upon because she recognized Mr. Abdi and knew him to be Rico.

16. It is argued that this is further corroborated in a small way by the fact that Rico said that he was from Ottawa and Mr. Abdi’s bail had an Ottawa address.

17. In R. v. Brown, 2006 CanLII 42683 (Ont. C.A.), the Court of Appeal recognized that there is a crucial difference between the identification of complete strangers and recognition evidence cases, because of the “timeline of the identification narrative”.

18. The strength of recognition evidence can be demonstrated through certain indicia of familiarity, such as:

19. The length of the prior relationship between the witness and the suspect;

20. The circumstances of the prior relationship between the witness and the suspect; and,

21. The timing of the contact between the witness and the suspect prior to the event where the witness recognized the accused.

22. Were it the case that there was evidence that Ms. Abarowei identified Mr. Abdi as Rico shortly after the robbery, the situation would be much different. In this particular case, she made her identification 16 months later. In my view, there are a number of factors to take into account when scrutinizing this evidence.

23. First, I would say that I have no issue with Ms. Abarowei’s credibility. I believe her that she was robbed in the manner that she has described and I accept that she genuinely believes that Mr. Abdi is Rico.

24. Mr. Abdi was not arrested at the scene. There is no link between Mr. Abdi and the two individuals who were arrested by the police. There is no evidence that Mr. Abdi was a resident or connected to 195 Erb Street. There is no evidence that Mr. Abdi was arrested in Waterloo or was in Waterloo at the time of the robbery other than the evidence of Ms. Abarowei. The DNA found on the gun belonged to one of the men arrested by the police and there is no link between the gun and Mr. Abdi. There is no evidence that Mr. Abdi’s fingerprints were found on the money or satchel located in the vicinity of the gun.

25. As stated by the Court of Appeal in Brown, the timing of the contact between a witness and the suspect is an important factor and in this case, it is even more so. Ms. Abarowei is a black female who was offering her services to mostly black men. She has continued in this line of endeavour to this day. Although it was a sensitive issue during cross-examination, it is fair to infer that many black men have come and gone in Ms. Abarowei’s life since April of 2020.

26. There was nothing unique about Rico that Ms. Abarowei could remember. She was not really able to describe him and there was no evidence that she provided more details to the police about the person who had robbed her that could assist in confirming her identification.

27. Although Ms. Abarowei had approximately five hours of combined contact with Mr. Abdi over a three week period of time, that was in April of 2020 and sixteen months have passed without any further contact between them and during much of that time she was high on marijuana.

28. Ms. Abarowei did not impress me as someone with an exceptional memory. When asked to describe Rico, she really could not do so. When asked to describe the two others involved in the robbery, she was unable to offer any description. When asked to describe the getaway car, she had no idea. When asked about her own rental car, she believed it was a Mazda but she appeared to be uncertain.

29. When asked about her memory, Ms. Abarowei indicated that it was not good and agreed that she was smoking marijuana when she was chilling with Rico. When asked how much money had been stolen she indicated in her evidence that it was $750. When questioned further, she acknowledged that she may have told the police that the amount was $830. In my view, the fact that Ms. Abarowei may be wrong about the amount normally wouldn’t be significant because it is human to remember things differently with the passage of time. What is important from my perspective is that she had read her police statement only a few days prior to this testimony where the amount was clearly written. She had obviously forgotten that detail by the time she testified a few days later. This inability to remember important details does not leave one with a sense of confidence in Ms. Abarowei’s overall ability to remember things.

30. It was also troubling that the police showed Ms. Abarowei a photograph taken from a security camera and then asked her to identify Rico. There is nothing wrong with showing a witness a photograph for identification purposes and no doubt, there is a good explanation for why, but that photograph was not tendered as an exhibit and there was no evidence led relative to it. The difficulty with the showing of the photograph is that Ms. Abarowei would know that the police had a picture of the man she described as Rico and it would be fair for her to assume that they would then arrest that man and that it was he who was before the court.

31. Ms. Abarowei was asked by the Crown “Do you see Rico in the courtroom?” Without being overly critical, the question might suggest to some that he was in the courtroom, especially since the Zoom setting had been changed and Mr. Abdi had then suddenly appeared when he wasn’t there before. He appeared on the screen as a young, black male. Indeed, he appeared on the screen as the only black male and the only other person other than court staff and counsel.

32. Ms. Abarowei pointed to Mr. Abdi immediately and identified him as the person who committed the robbery. I suspect that she was probably right, but given the circumstances before me and for the reasons previously discussed, in my view, it would be dangerous to make a finding of guilt in this case. As stated by so many courts in the past, the dangers inherent in identification evidence have resulted in far too many wrongful convictions.

33. The onus is upon the Crown to prove the case beyond a reasonable doubt. Although there was credible recognition evidence at the time that the offence occurred, the passage of sixteen months from the time of the incident to the time of trial has significantly diminished the weight of this evidence. The human memory is not perfect. Common sense suggests that it is impacted by the passage of time. Ms. Abarowei’s memory of events is not particularly good as evidenced by her inability to provide detail relative to so many important issues in this case. As a result, I agree with the Defence submission that the Crown’s case really does rest with dock identification made more than a year after the offence. Without more, I am obliged to find Mr. Abdi not guilty of the charges before me and for the reasons given, I do so.