Ontario Court of Justice
Date: 2022 07 08 Court File No.: Toronto 998 19 75002908
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ISLAMUNDDIN ATTAYEE
Before: Justice Chamberlain
Heard on: October 18 and 19, 2021, and June 21, 2022 Reasons for Judgment released on: July 8, 2022
Counsel: Vivian Gallegos and Victoria Di Iorio........................................... Counsel for the Crown Islamunddin Attayee...................................... (Previously Represented by Colson Mills) ....................................................................................... Concluded by Representing Himself Paula Rochman....................................................................... Appointed as Amicus Curiae
Chamberlain J.:
[1] Islamunddin Attayee is alleged to have assaulted his spouse on a street corner in Toronto. Members of the public intervened to assist his spouse and to prevent him from further assaults leading to one of those individuals being struck as well. His spouse appears to have elected not to participate in the trial process. The main issue in this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Attayee was the person responsible for those assaults.
The Testimony on the Charged Offences
[2] On June 14th, 2019, a man was seen assaulting his presumed spouse a number of times, slapping her in the face on at least two occasions. Community members, some who were witnesses at this trial, intervened and one of those individuals was assaulted as well. Three of those individuals testified in this trial, Roger Savoie, Susan Da Costa and Linda Park.
[3] Roger Savoie was walking home from work on the evening of June 14, 2019, when a friend, another bystander, asked him if he could help. His friend told him a man was beating his wife. A little later he saw a couple with a child in a stroller exit a corner store. They appeared to be arguing in a language Mr. Savoie did not understand. When the man tried to take control of the stroller and the woman resisted, the man slapped the woman. Mr. Savoie got between them and told the man he could not do that. Neither really responded and both began to cross the street again, the man once again caught up to what the witness assumed was his wife and hit her again, this time landing a punch somewhere near the left side of her neck.
[4] Once again, Mr. Savoie placed himself between the two and held up his arms to protect the woman from any further attacks. The man continued to try to reach the woman. Other concerned citizens intervened to stop the man and Mr. Attayee is alleged to have hit one of the other women intervening. At this point, Mr. Savoie intervened physically, grabbing the man in a reverse bearhug (a bearhug with assailant facing away from Mr. Savoie who had picked him up from behind, and linked his arms around the man’s abdomen and arms). He described the man as small in stature and said he was able to lift him fairly easily.
[5] The man struggled, gradually slipping down between Mr. Savoie’s arms, even trying to bite Mr. Savoie on the forearm. The man then got away and walked north on Ontario Street from Gerrard Street. Mr. Savoie testified that he was not familiar with either the man or woman and had not seen them before or since.
[6] Susan Da Costa was also coming home from work when she stumbled upon this scene. At the intersection of Gerrard and Ontario Streets, Ms. Da Costa was on one corner waiting for the light to turn. On the other corner at the other side of the lights, she saw that same couple, the man, woman, and two children. She could tell there was a conflict of sorts between them, and then she saw the man slap the woman across the face. Ms. Da Costa yelled at him from across the street to stop.
[7] As Susan Da Costa crossed the street towards the couple she could see that they had resumed their conflict and she observed the man slap the woman again. Once again, he slapped her on the right side of her face. The man then began to cross the street with the stroller, but Ms. Da Costa was concerned for the children’s safety as he appeared to be crossing against the light. She grabbed the stroller and pulled it back up on the sidewalk, further angering the man. He raised a hand as if to strike her and she pleaded with him not to. She stepped back and another woman stepped in between her and the man to prevent the assault. The man struck this other woman with a closed fist on the side of the head. Ms. Da Costa believed the other woman may have been struck two to three times.
[8] Susan Da Costa took the time to remove herself, the complainant/presumed spouse, and the children away from the man to keep them and herself safe. The man soon after left north on Ontario Street from Gerrard Street. Ms. Da Costa stayed with the main complainant until the police arrived.
[9] Linda Park was walking on Gerrard Street when she heard what she described as the “inconsolable cries and screams of a small child”. She turned and observed a woman who was with a stroller being hit in the face by a man. She ran over to intervene immediately along with other concerned members of the public. Ms. Park called 911 and then confronted the assailant, telling him to stop and that he could not hit that woman and that he had to wait for the police to come.
[10] The assailant then turned on Ms. Park and punched her in the head a few times, first knocking her expensive sunglasses off her head and breaking them. He then hit her again in the head. She testified that her face was bruised the next day, but the injuries were not serious. Ms. Park corroborated that the man was then grabbed by another man and restrained temporarily. The assailant then fled the area and Linda Park remained and provided a statement to the police.
[11] Sarah Chippior is a Constable with the Toronto Police Service. On June 14, 2019, she was dispatched to attend to a domestic incident at Gerrard and Ontario Streets in Toronto. The individual whom she learned had been assaulted, presumably by her husband, was identified by a witness as Shakira Mohammed. Ms. Mohammed was uncooperative, refusing to give a statement, though she did confirm her name and address as well as her husband’s name: Islamunddin Attayee. It was conceded by both parties that Mr. Attayee’s name was admitted for the purpose of narrative to explain the officers’ actions after the initial investigation, but that the hearsay statements provided to the officers by witnesses who did not testify was not admitted for the truth of its content.
[12] Elias Tissawak is a detective constable with the Toronto Police Service. He testified that on the day in question, he and his partner, Constable Chippior, responded to a radio call about the alleged domestic assault. He testified that he spoke to a number of witnesses on scene, and he recorded some audio statements from those witnesses. He learned from his partner, Constable Chippior the name of the “male involved” and ran his name on the various police databases, believing their target to be Islamunddin Attayee.
[13] Based on in-car computer checks, they were able to find his address. They attended to Mr. Attayee’s residence and they were frustrated in their attempts to have him come out of his home. They were later informed by a neighbour that the individual had left from another door soon after they arrived. They were directed by senior officers to attend to the complainant’s home to check if he had attended at that address.
[14] When they attended at Shakira Mohammed’s home, they could hear loud voices inside. They knocked and announced themselves, were provided entry to the apartment. Ms. Mohammed directed them to the washroom. When they entered, the light was off, and Mr. Attayee was found after the officers pulled back the shower curtain. He was arrested.
Identification of the Assailant
[15] Roger Savoie stated his interaction with the assailant lasted some six minutes or so. When asked to describe the assailant, he stated that he believed the accused person in court was him. When asked to give a description of the person he saw that day, he noted that the man was about five feet six inches tall. Beyond that, he was simply certain the person in court was the same person who assaulted those women on the day in question.
[16] Susan Da Costa gave a general description fitting Mr. Attayee, describing him as wearing dress pants, a white dress top and black dress shoes. She testified that he was balding on the top of his head with graying hair on the sides. She guessed his age to be in the early to mid 50’s. As Ms. Da Costa was testifying remotely, when asked if she saw him in court that day, she testified that he was the individual in the Zoom box marked “accused.”
[17] Linda Park described him as short, dark hair, balding, cut short, wearing a beige jacket, pants. She pointed out Mr. Attayee in court. She was adamant that he was identical to the person who assaulted her. She testified: “He’s short as I described. He’s short and bald head, short dark shaved hair on the sides, black glasses, and . . . I know he hit me.” No mention of the glasses was made in her statement or by any other witness to the assaults.
[18] In her cross examination, she admitted to not having mentioned the glasses previously but confirmed that he was wearing those glasses on the day of the assault. When challenged further she maintained her position on the identity of the assailant, noting she had seen Mr. Attayee walking in the hallway on the day of trial and that his gait was exactly the same. There was no description of the purported gait and as a result it provided very little corroboration in this case. Further, no other witness corroborated that the assailant was wearing glasses on the day of the assault or that he walked with a particular gait.
[19] Notwithstanding the concerns about the need to identify the assailant and in particular in light of the lack of cooperation from the main complainant who might have been in the best position to do so, no photo line-up or any other process to have the assailant positively identified was done as part of this investigation.
Conclusion
[20] It is important to be cautious of what is termed in dock identification: relying solely on the identification of individuals by witnesses in the courtroom at the time of trial. The trial happened over two years after the alleged allegations. As well, we were well into one of the subsequent waves of Covid-19, and all parties in court, including Mr. Attayee were masked at all times. Because of Covid-19 restrictions, other than the staff, his counsel and myself, Mr. Attayee was the only other person in court, except for the last part of Ms. Park’s testimony which happened in person, and Roger Savoie who testified in court.
[21] The courts have been clear that I must be mindful of not over relying on in dock identification. In the Supreme Court of Canada decision of R. v. Hibbert, 2002 SCJ No. 40, the court stated:
50 I am of the view that, in the circumstances of this case, the trial judge should have cautioned the jury more strongly that the identification of the accused in court, by Mrs. McLeod and Mrs. Baker, was highly problematic as direct reliable identification of the perpetrator of the offence. I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above to the effect that such identification should be accorded "little weight", goes far enough to displace the danger that the jury could still give it weight that it does not deserve.
[22] On that basis and based on the evidence of the witnesses at trial, I find that the evidence of identity of the assailant is insufficient for me to find, beyond a reasonable doubt, that Mr. Attayee was the assailant on the day in question and I must acquit him of all charges.
Communications between a Witness and the Officer in Charge
[23] There was a very disturbing turn of events midway through the testimony of officer Sarah Chippior. Constable Chippior testified by zoom. The officer in charge, Jade McMurray and the Crown, Ms. Vivian Gallegos, were also on zoom. I was in person as was Mr. Mills, then counsel for Mr. Attayee. During Constable Chippior’s testimony, a number of pings were heard, four in fact, suggesting a notification of a message being received, such as is heard in the Facebook Messager application. The pings can be heard clearly in the recordings.
[24] During her testimony, I observed both Officer Chippior and Officer McMurray, suddenly lurch forward, heave their shoulders simultaneously, and bow their heads slightly as one does when one is suppressing a moment of laughter or as one says more colloquially, guffaws, though in this case, silently. When I first noticed their mutual silent guffaw, I thought perhaps I had missed something in someone’s words or looks that might have caused this reaction, so I began to watch the screen even more carefully. A few minutes later, another very similar guffaw occurred by both the witness and the officer in charge simultaneously, and based on my observations, it was clear that both were suppressing a laughter about something that was not related to any words or observations of any parties in the proceedings.
[25] I excused the witness, Officer Chippior, and raised it with the parties. At the time, I was assuming there were looks or some other inside joke exchanged through the zoom call. I said to the parties, in the absence of the witness: “I am a little concerned because if we were in court and there was eye contact and stuff being made, it just gives the impression that there is a possibility of influencing a witness, and it is not proper. So I just want to put that out there that it is really important, officer McMurray, if you are having a hard time, you know, keeping the face, there is no reason, you can certainly close or turn your camera off if that's an issue, if that's going to be an issue, but you can't be interacting or reacting surreptitiously with the witness while they are testifying, please.”
[26] Officer McMurray responded: “I understand, your honor. I am very sorry.”
[27] Mr. Mills pointed out that he noticed the same behaviour, but he pointed out the suppressed guffaws were in fact associated to the pings notifying a participant of a message being received. This in my view, was even more troubling, as it was suggesting that there may in fact have been communications through other means by the officer in charge and the witness while she was testifying. Appreciating that I was putting the Crown, Ms. Gallegos, on the spot when she would have been rightly focused on her examination in chief, I took the afternoon break and asked Ms. Gallegos to speak to her officer in charge and to confirm if there had been any communications outside of the courtroom.
[28] When returning from the break, Ms. Gallegos informed me that she did not speak to officer McMurray about this during the break because she did not intend to make herself a witness to any issues that might arise. She confirmed that she did not ask the officer if there had been any communications with the witness. The issue of the communications was never raised again by the Crown or Mr. Mills, and no disclosure or information was provided to Mr. Attayee or the court about those communications.
[29] I ordered a special copy of the transcript, asking the transcriber to note the pings during Officer Chippior’s testimony to see if it would correspond to my notes of the two incidents I had observed of suppressed guffaws during her testimony by both her and officer McMurray. I regret to say it did. In all, during her testimony, four pings were heard. I noted the suppressed guffaw on the second and third pings. The fourth ping happened after the break and discussion noted above and constable Chippior, at that time, apologized for it going off, indicating she did not know how to suppress the notifications.
Findings in Respect of Officer’s Chippior’s Testimony:
[30] I am convinced that Officer McMurray and the witness communicated through some other means than our Zoom trial while Officer Chippior was testifying. The simultaneous suppressed guffaws of both officers on two occasions, just following the notification ping of a message having been received can leave me with no doubt. The Crown, not Ms. Gallegos who was not available for the last day of trial, in their closing arguments, pointed out that any evidence of their communications was only circumstantial and that I should not give it much weight. I agree that the evidence was circumstantial, but I found it compelling, and I have no doubt those communications were happening during the officer’s testimony.
[31] I can make no findings with respect to the nature or substance of the communications because no record of that communication was ever produced. I question the rationale in not producing these records of communication to the accused and his counsel, as it seems very clear to me that this information, including who was a party to and how they were communicating, and the content of those communications were clearly relevant, as it might go specifically to the credibility of the witness herself, and perhaps even, the credibility of the whole investigation.
[32] As such, I write this ruling, blind to the content and nature of those communications. But having found that they were in fact communicating, I can only draw two possible conclusions:
(1) The communications were unrelated to the trial itself but was a sidebar discussion of other issues leading to the reactions of suppressed laughter on two occasions and of communications on probably at least four instances during Officer Chippior’s testimony; or,
(2) The communications were directly related to an issue at trial and the officers were undermining the trial process by communicating about matters relevant to the trial.
[33] Either option is incredibly troubling. I can make no findings about the nature of those discussions, but I can state, that in communicating during a trial with a witness who is testifying, even if totally unrelated to the issues at trial, served to undermine the process. It caused a rift between Mr. Attayee and his counsel, such that he was removed from the record, and because the Ontario Legal Aid Plan refused the application for a change of solicitor, Mr. Attayee was left without counsel.
[34] Further it undermined the administration of justice because it left the impression that the trial was not fair. How could a defendant, in an open court, who’s liberty is at stake and who faces significant consequences if found guilty, feel as though he’s had a fair trial if the witness and the officer in charge are communicating surreptitiously while testifying?
The Actions of the Crown in Relation to these Communications
[35] As noted above, I was deeply troubled by the complete inaction of the Crown on this issue. Crown Attorneys have duties to fairness as officers of the court and representatives of the Crown that go beyond that of the responsibility and duties of other parties before the court.
[36] The Ontario Court of Appeal stated in R. v. Ahluwalia, [2000] O.J. No. 4544, a case about a police agent who did not disclose their complete US criminal record and perjured themselves at trial:
72 The Crown has obligations to the administration of justice that do not burden other litigants. Faced with its own witness’s perjury and the fact that the perjured evidence coincided with the incomplete disclosure that the Crown says it innocently passed to the defence, the Crown was obliged to take all reasonable steps to find out what had happened and to share the results of those inquiries with the defence. In my view, the Crown did not fulfill its obligations to the administration of justice by acknowledging the incomplete disclosure discovered by the defence, and after making limited inquiries, professing neither a responsibility for the incomplete disclosure nor an ability to provide any explanation for it. The Crown owed both the appellant and the court a fuller explanation than it chose to provide.
R. v. Ahluwalia, [2000] O.J. No. 4544 at para 72 (Emphasis added)
[37] I expect better from the Crown. The law compels it, and justice demands it. This trial was irrevocably tainted by the actions of this witness, the officer in charge and the Crown. It is hard to imagine that Mr. Attayee might be feeling like he had a fair trial.
[38] But worse yet, I feel for the complainant, Ms. Mohammed, Linda Park, and the witnesses, Susan Da Costa and Roger Savoie, who came here seeking justice, or who stepped in to help a vulnerable victim and now find the whole process undermined by the actions or inactions of some of the players.
Released: July 8, 2022 Signed: Justice André Chamberlain