DATE: June 26, 2024 ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — HALLIE NDORLEY

For the Crown: E. Minchopoulos For the Defendant: D. Genis Heard: May 8 - 10, 2024

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Ndorley is charged with robbery while armed with an imitation firearm, and various associated offences arising out of an encounter with Muneer Abdo on December 11, 2022.

[2] He is also charged, on a separate information, with possession of counterfeit money, and other related offences, arising out of the execution of a search warrant at his residence on December 28, 2022.

[3] The Crown proceeded by indictment and Mr. Ndorley elected to be tried on both informations together in the Ontario Court of Justice. He pleaded not guilty to all charges.

[4] The Crown called as witnesses Mr. Abdo and two police officers. They also put before the court a long, agreed statement of fact with several appendixes as well as one shorter supplementary agreed statement of fact. Mr. Abdo’s call to 911 as well as CCTV footage from a local Starbucks and CCTV of the back of Mr. Abdo’s business on Danforth Avenue were entered into evidence. Mr. Ndorley did not testify nor call any other witnesses.

B. THE ALLEGED ROBBERY

(a) Introduction

[5] Mr. Abdo testified to having met Mr. Ndorley near Mr. Abdo’s restaurant business and then having agreed to some sort of business arrangement with him. Several days after their initial meeting, according to Mr. Abdo, Mr. Ndorley came to the restaurant in the evening to meet with Mr. Abdo, pointed what looked like a gun at him, and stole $15,000 from Mr. Abdo – money meant to be invested in some sort of joint venture between them.

[6] Mr. Genis, on behalf of Mr. Ndorley, formally admitted at the outset of trial that Mr. Ndorley did indeed meet with Mr. Abdo on the occasions Mr. Abdo testified about, including December 11, 2022. He argues, however, that the Crown has failed to prove beyond a reasonable doubt that Mr. Ndorley committed any of the offences alleged to have occurred on the evening of December 11, 2022.

(b) The Salient Aspects of the Evidence

[7] According to Mr. Abdo, who runs a restaurant on Danforth Avenue in Toronto, Mr. Ndorley happened to be in the neighbourhood on December 6th looking for investment opportunities. Mr. Abdo expressed interest and they agreed to meet at a Starbucks on December 9th. Before Mr. Ndorley drove off, Mr. Abdo took a picture of Mr. Ndorley’s licence plate.

[8] At the Starbucks meeting (which was captured on CCTV) they spoke for approximately 10 minutes at a private table and agreed to meet at Mr. Abdo’s restaurant on December 11th in the evening. The idea was that both would invest $50,000 in the restaurant and split profits thereafter.

[9] Mr. Abdo went on to explain that on December 11th both he and Mr. Ndorley entered the restaurant from the rear parking area, sat down and spoke for approximately 30 minutes. Mr. Ndorley had a suitcase with him. Mr. Abdo asked Mr. Ndorley for identification. In response, Mr. Ndorley took out “what looked like a gun” from his right pocket and demanded Mr. Abdo’s money. Mr. Abdo had $15,000 in cash with him and handed it over. Mr Ndorley then left through the back door. Mr. Abdo waited then departed through the same door.

[10] Cross-examination of Mr. Abdo revealed several very significant inconsistencies. Most notably:

• When Mr. Abdo called 911, which he did almost immediately after the incident, he was asked what had occurred and he said that a man had stolen his money. He said absolutely nothing at first about a gun. When asked if the thief had threatened him, he again said nothing about a gun. Only after the 911 operator asked if the thief had a weapon did Mr. Abdo mention “something” in the thief’s pocket.
• When he gave his statement to the police some brief time later, he told the police that he had only met the robber, “two times” – once before the robbery, in the neighbourhood and on the night of the robbery. He left out the meeting at Starbucks, even though he was questioned carefully about what led up to the incident. When challenged on cross-examination he explained that in his native language (Arabic) words like “two times” and “yesterday” do not have the same precise meanings they do in English. He used those very words in his police statement and spoke in English, His English is excellent, having been in North America for approximately 25 years.
• CCTV shows Mr. Ndorley arriving at the restaurant carrying a suitcase and another bag that seems light or empty. He left the premises with both bags, each appearing heavy. Mr. Abdo could offer no explanation for this.
• Mr. Abdo never told the police about either bag.
• CCTV confirms that Mr. Abdo closely followed the supposed gunman out the very same door that the gunman used to leave the premises.

(c) My conclusions as to Mr. Abdo’s credibility and reliability

[11] Mr. Abdo’s story makes little sense on its face. His description of the contemplated business arrangement lacked any detail, not to mention how unusual it would be to enter into such an arrangement based on a 10-minute meeting at Starbucks.

[12] The many inconsistencies in his account to 911, and his statement to police officers and the court cast further doubt on his story. His odd explanations for those inconsistencies render his story even more incredible. As Mr. Genis put it to Mr. Abdo in cross-examination, I believe that Mr. Abdo is hiding something as concerns his interactions with Mr. Ndorley.

[13] I have no doubt that something out of the ordinary transpired between the two protagonists that night, but I am not convinced that Mr. Ndorley robbed Mr. Abdo.

C. THE COUNTERFEIT MONEY AND RELATED CHARGES

(a) Introduction

[14] On December 28, 2022, police executed a search warrant at Mr. Ndorley’s residence, looking for the “gun” that Mr. Abdo told police about approximately two weeks earlier.

[15] The search of the residence did not turn up any weapons, but police did find a significant amount of counterfeit currency and paraphernalia in the garage. They also found some counterfeit currency and a lot of genuine currency elsewhere in the house.

[16] The Crown relies principally on two detailed agreed statements of fact with associated photographs and other appendixes.

[17] Mr. Genis, on behalf of Mr. Ndorley, admits the counterfeit nature of what was found. The only issue he raises is whether the evidence proves beyond a reasonable doubt that Mr. Ndorley had both knowledge and control over the discovered contraband, i.e., was he in “possession” of it.

[18] The evidence of possession is entirely circumstantial. As the Supreme Court held in R. v. Villaroman, 2016 SCC 33 at paras. 35 – 38:

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts". However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. (Emphasis added)

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused":. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (Emphasis added)

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. (Emphasis added)

(b) The Agreed Statements of Fact and Appendixes

[19] The agreed statements of fact contain some very clear statements, but they are also rife with ambiguities.

[20] I set out what salient facts are clearly made out or implied in the statements of fact, along with what is not addressed:

• On the day of the search, Mr. Ndorley resided at the target address (377 Old Hardwood Avenue, Ajax, Ontario) with his wife. Two other adults and three children were also living there. How long any of them had resided there is not set out.
• A bible with Mr. Ndorley’s name engraved on it was found on the bedside table of the primary bedroom.
• Counterfeit money was found in two small pieces of luggage on the bedside table in the primary bedroom. There is no evidence as to whom these bags belonged to.
• The marriage certificate belonging to Mr. Ndorley’s and his wife was found in the primary bedroom.
• Counterfeit money and packaging material was found in the garage. There was no surveillance of Mr. Ndorley ever entering the garage and no evidence of his fingerprints being found in the garage or on any doors to the garage.
• Bundles of counterfeit currency were found in a briefcase near the television in the living room. There was no evidence as to whether the briefcase was open or shut.
• Counterfeit money and bank envelopes in other people’s names were found in a car registered to Mr. Ndorley’s wife.
• The only connection between Mr. Ndorley and that car is the fact that he was driving it two weeks earlier.
• Photos of two documents with Mr. Ndorley’s name on them (an Ontario vehicle permit showing a different address and an old Government of Canada pleasure craft licence) are among a collection of photographs taken by police. Many of the photos in this collection were taken in the garage yet many were not. The relevant agreed statement of fact is silent as to where the two documents were found. I am unable to conclude (as urged by the prosecution) that the photos of the two documents prove that the photos were taken in the garage. And even if they were, I could not conclude that that is where they were found.

[21] The bible on the night table beside the bed in the principal bedroom leads me to conclude that Mr. Ndorley occupied that bedroom. I cannot infer from the evidence that he occupied it alone, or with his wife.

[22] It is certainly possible that Mr. Ndorley knew about and was in control of the various caches of counterfeit currency in the garage, his wife’s car, the bags in the principal bedroom and the bag in the living room.

[23] However, applying R. v. Villaroman, supra, the evidence admits of a reasonable possibility that he did not. A reasonable, innocent scenario easily comes to mind: his wife, either alone or in partnership with one of the other adults residing there, ran this counterfeiting operation, never informing Mr. Ndorley. Mr. Ndorley never went in the garage nor saw the collections of currency, real and counterfeit, found elsewhere.

[24] Mr. Ndorley occupied the principal bedroom, but that doesn’t mean he was the principal resident of the house. It might have been one of the other adults who allowed Mr. Ndorley and his wife to sleep together in that room because it was a better fit for two people.

[25] Even if Mr. Ndorley was the principal occupant of the home and thus “responsible” for the entire premises, including the garage, our Court of Appeal has made it clear that “more than mere responsibility for a room in which [contraband] is found is required in order to establish possession”. R. v. Bertucci, [2002] O.J. No. 3870 (C.A.) at para. 18. See too, R. v. Terrence, [1983] 1 S.C.R. 357. Nor does that responsibility give rise to any presumption that Mr. Ndorley had knowledge and control of the contraband. R. v. Lincoln, 2012 ONCA 542.

[26] I reach the same conclusion as concerns the documents found in Mr. Ndorley’s wife’s car. The Crown has failed to prove that Mr. Ndorley was ever in possession of them.

D. CONCLUSION

[27] All the charges against Mr. Ndorley are dismissed.

Released on June 26, 2024 Justice Russell Silverstein