ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 11-5000245-0000
DATE: 20120314
BETWEEN:
HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED Defendant
Scott Arnold, for the Crown
John F. Scandiffio, for the Defendant
HEARD: March 5, 6, 7, 8, 9, 12 and 14, 2012
REASONS FOR JUDGMENT
pattillo j. :
Introduction
[ 1 ] Mohamed Muhyadin Mohamed is charged that he, on or about the 1 st day of October in the year 2009, in the City of Toronto, did rob Linda Na, contrary to Section 344(1) (b) of the Criminal Code , R.S.C. 1985, c.C-46.
[ 2 ] The charge concerns the robbery of a teller at a bank on October 1, 2009. Mr. Mohamed’s defence is that he was forced to carry out the robbery under duress.
[ 3 ] The trial was heard by me without a jury during the week of March 5, 2012. At the final argument on Friday March 5, 2012, both counsel argued the common law defence of duress. Following argument, I reserved judgment until Monday March 12, 2012.
[ 4 ] On March 12, 2012 prior to giving judgment, I raised with counsel whether the common law defence of duress applied at all given that section 17 of the Criminal Code excludes the defence where the offence is, among other things, robbery. The matter was adjourned to the afternoon to enable counsel to consider the question. Upon resumption, the issue was argued by counsel. It was then put over until today at the request of the defence to provide further time to consider and argue the issue. I have now heard that further argument.
Facts
[ 5 ] On the afternoon of October 1, 2009, the Bank of Montreal branch at 141 Saturn Road in Etobicoke was robbed.
[ 6 ] Sometime after lunch on that day, Ms. Linda Na, a teller who has been with the bank for 15 years and at the 141 Saturn Branch since October 2008, was approached by a young male who handed her a note. The note said: “Give me all your money. $20,000 I have a gun.” He didn’t say anything. She read the note and then opened her till and gave him roughly $400 which she had in her till. He took the money and ran out of the Bank. She said she was very nervous. After he left, she called out to her colleagues in the Bank that she had been robbed.
[ 7 ] Ms. Na had seen the individual who robbed her in the Bank previously accompanying his mother who was a Bank customer.
[ 8 ] She identified the individual shown in the photos taken by the Bank’s interior surveillance camera (Exhibit 1) as being the individual who robbed her. She later identified the accused from a photo line-up as the person who robbed her on October 1, 2009.
[ 9 ] Mr. Robert Terbrugge who was a financial planner at the Branch, was alone in his office on the afternoon of October 1, 2009. He heard screams and realized the Bank was being robbed. His immediate reaction was anger because the Branch had been robbed three weeks earlier. He saw the suspect run out the outer doors of the Branch. He followed him out of the Branch. He saw him running towards a car parked on the street in front of the Bank’s parking lot. He described the vehicle as a black, older model Honda Accord. Mr. Terbrugge proceeded after him. The suspect got into the passenger side of the vehicle. It started up quickly and immediately turned left into the parking lot of the plaza across the road. Mr. Terbrugge was able to get the letters “BE” from the licence plate.
[ 10 ] From an exterior surveillance video, the police were able to identify the licence plate number of the vehicle as “BEYW 191”. That vehicle was registered to the mother of an individual named Mustafa Gelle.
[ 11 ] The police put together a number of photos of the robber taken from the Bank’s surveillance cameras (Exhibit 1). On October 6, 2009, Detective Taylor contacted Mr. Stephan Fahel, who worked as a security guard for a condominium corporation on Dixon Road. The Detective showed Mr. Fahel the photos of the robber and he identified the individual in the photos as the accused. He has known the accused since the summer of 2006 and has spoken with him a number of times. He knew where he lived and he knew his mother and some of his friends.
[ 12 ] On October 8, 2009, Toronto Police executed a search warrant at Mr. Mohamed’s residence and arrested him on the charge before the court.
[ 13 ] Mr. Mohamed admitted during the Crown’s case that he robbed the Bank on October 1, 2009. His position is that in doing so, he was acting under duress and therefore should be relieved of any criminal liability.
Duress
[ 14 ] The defence of duress has a dual existence in our criminal law. It is available either pursuant to section 17 of the Criminal Code or pursuant to the common law.
a. Section 17
[ 15 ] Section 17 of the Criminal Code provides:
- A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused from committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
[ 16 ] Notwithstanding section 17, the courts of Canada have held that, in circumstances where it is not applicable, the more liberal common law defence of duress will continue to apply as a result of section 8(3) of the Criminal Code .
[ 17 ] This duality is explained in part by Code J. in R. v. Wilson (2011), 2011 ONSC 3385 , 272 C.C.C. (3d) 35 (Ont. S.C.J.) at paragraph 50 :
50 The reason why two distinct forms of the defence of duress have persisted in Canadian criminal law, one at common law and one under s. 17, is that the courts have interpreted the s. 17 defence as applying only to principals and not to secondary parties. In this regard, s. 17 begins with the language, "A person who commits an offence under compulsion by threats ..." This language has been interpreted narrowly as having no application to aiders and abettors and other secondary parties. Since s. 8(3) of the Criminal Code preserves common law defences, "except in so far as they are altered by or are inconsistent with this Act", the common law defence of duress continues to apply to all secondary parties. See: R. v. Paquette (1976), 1976 24 (SCC) , 30 C.C.C. (2d) 417 (S.C.C.) ; R. v. Hibbert , supra ; R. v. Mena (1987), 1987 2868 (ON CA) , 34 C.C.C. (3d) 304 (Ont. C.A.) .
[ 18 ] In addition, in R. v. Ruzic , 2001 SCC 24 , [2001] 1 S.C.R. 687; 153 C.C.C. (3d) 1 (S.C.C.), the Court held that the presence and immediacy requirements of section 17 infringe section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) and partially struck down section 17. Important for this case, however, is the fact that LeBel J., writing for a unanimous Court expressly noted at paragraph 19 of the decision that the appeal did not concern the constitutional validity of the listed excluded offences in section 17.
[ 19 ] It is clear from the plain wording of section 17 of the Criminal Code that if that section applies in this case, the defence of duress is not available to Mr. Mohamed given that he is charged with robbery.
[ 20 ] While the common law defence of duress applies in circumstances where the offence charged is not one of the listed offences in section 17 and that section is not otherwise applicable, it does not apply where the offence charged is one of the offences listed in section 17 .
[ 21 ] As LeBel J. states at paragraph 23 of Ruzic , supra , “Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether.”
[ 22 ] Counsel have been unable to provide me with any binding authority post- Ruzic which holds that the excluded offences in section 17, and specifically robbery, have been struck down for infringing the Charter .
[ 23 ] The defence has referred me to R. v. Li (2002), 2002 18077 (ON CA) , 156 O.A.C. 364; 162 C.C.C. (3d) 360 (Ont. C.A.). In Li , supra , the court considered the defence of duress in relation to a charge of kidnapping. Although kidnapping is not one of the listed offences in section 17 , “forcible abduction” is. The trial judge assumed, without deciding the matter, that kidnapping was an excluded offence under section 17 and permitted the common law defence of duress. The Court of Appeal agreed. Li , supra , is very different from this case where the charge in issue is a specifically included offence in section 17 . Although there was a Charter challenge to section 17 in Li , supra , it was not proceeded with.
[ 24 ] In addition, the defence has also provided two provincial court decisions, one from Nova Scotia and one from British Columbia both dealing with the defence of duress in relation to the charge of robbery.
[ 25 ] In R. v. Fraser , [2002] N.S.J. No.400 (N.S. Prov. Ct.) , the court held based on Ruzic, supra, and on the concurrence of both Crown and defence counsel that section 17 of the Criminal Code in so far as it eliminates the defence of duress concerning robbery is of no force and effect as being contrary to the Charter and in particular section 7 . The court purports to declare section 17 , at least in relation to the offence of robbery, to be inoperative. The decision does not appear to have been appealed or followed by any other court in Canada.
[ 26 ] In R. v. M.P.D. , [2003] B.C.J. No. 771 (B.C. Prov. Ct.) , the court considers the defence of duress at common law in relation to a charge of robbery. Referring to both Ruzic , supra and Li , supra , the court states at paragraph 54 of the decision in relation to Ruzic : “I do not propose to review the Court’s reasons for finding that section 17 of the Criminal Code violates section 7 of the Charter . It appears that is now settled in Canada. I need only have consideration to the common law principles relating to duress.” The learned judge then goes on to deal with the common law defence of duress in relation to a charge of robbery without discussing or considering whether the defence is available having regard to the fact that section 17 of the Criminal Code specially excludes it for robbery. The case does not assist Mr. Mohamed’s position.
[ 27 ] In the absence therefore of a Charter challenge by Mr. Mohamed concerning the constitutional validity of excluding the defence of duress for a charge of robbery in section 17, that part of section 17 of the Criminal Code remains in full force and effect.
[ 28 ] As a result, therefore, it is my view that section 17 of the Criminal Code applies in this case and because the offence charged is robbery, the defence of duress is not available to Mr. Mohamed.
[ 29 ] During the further argument before me, on March 12, 2012 and again today, counsel for Mr. Mohamed requested an adjournment to enable him to bring a Charter application to challenge the validity of section 17 in respect of all the listed offences or in the alternative just the offence of robbery. The Crown strongly opposes the request. It submits that the defendant’s proposed Charter application is too late. The trial is over. Further, such an application would not be in compliance with notice requirements of the Criminal Proceedings Rules and, given the seriousness of the issue, would result in significant delay and the potential involvement of other counsel.
[ 30 ] While the trial has been completed and Mr. Mohamed is clearly outside the time limits provided by the Criminal Proceedings Rules for bringing such an application, those reasons would not, in my view, automatically prevent him from bringing his proposed application. Further, and although it will necessarily delay the completion of this matter, the application can be dealt with expeditiously and any delay would fall to Mr. Mohamed. The court has a wide discretion in respect of procedure to facilitate a fair and expeditious determination of Charter issues: R. v. Blom (2002), 2002 45026 (ON CA) , 61 O.R. (3d) 51 (C.A.) at paragraphs 21 and 22 .
[ 31 ] I am, however, inclined to the Crown’s submission that in light of the fact that the defence has raised the defence of duress on the evidence, I should deal with it in the alternative based on the common law defence of duress. Depending on my decision on that issue, Mr. Mohamed’s proposed Charter application may become necessary, in which case it should proceed or it may be academic and unnecessary, in which case it should not.
b. The Common Law Defence of Duress
[ 32 ] In the event therefore that I am wrong in my conclusion that the defence of duress is not available to Mr. Mohamed in this case based on section 17 of the Criminal Code , I will proceed to consider the case based on the common law defence of duress.
[ 33 ] In Wilson , supra , at paragraph 61 , Code J. set out the three elements of the common law defence of duress. They are first, that the accused must be subject to a threat of death or serious physical injury. Second that there must be no safe avenue of escape or reasonable opportunity to render the threat ineffective. And finally, there must be proportionality between the threat and the criminal act alleged.
[ 34 ] Once the defence is properly raised on the evidence, the Crown must negative it by proving beyond a reasonable doubt that any one of the three elements does not exist on the facts of this case: Wilson , supra , at paragraph 63 .
[ 35 ] The Crown submits that the evidence establishes beyond a reasonable doubt that there was never any threat of death or serious physical injury. In the alternative, it is submitted that there was a safe avenue of escape for Mr. Mohamed when he went into the Bank.
[ 36 ] The only evidence concerning duress came from Mr. Mohamed.
[ 37 ] He is currently 23 years old. On Oct 1, 2009, he was attending York University and residing with his mother and eight siblings at 65 Bridesburg Road in Toronto. He woke up on that day at around 12 or 12:15 pm and got ready for school. He got a telephone call from his good friend Mustafa Gelle who usually drove him to school. He and Mustafa had been friends since grade 6. Mustafa told him he would pick him up for school in a half hour or 45 minutes. A little while later he got another call from Mustafa saying he should come outside. He went out and saw Mustafa’s car. He got into the front passenger seat. He greeted Mustafa. As the car pulled out, he looked back and noticed a person in the rear passenger seat. He didn’t pay any attention to him.
[ 38 ] When they went on the highway, they went in the wrong direction. He asked Mustafa why they were going the wrong way but he didn’t answer. He looked back again and the person in the back, who he described as a black male with wide shoulders, had a hoodie on and was wearing a mask. The person told him to look forward and he obeyed. He asked Mustafa what was going on and he again didn’t reply.
[ 39 ] He looked back again and the person in the back seat said that if he looked back again, “something was going to happen”. He said that he would shoot him. He saw a gun being pointed at him. The gun was black and the person was holding it in his right hand.
[ 40 ] They continued driving on the highway. He kept asking Mustafa what’s going on? He again didn’t respond.
[ 41 ] When they were about to leave the highway, the person in the back seat tossed a colourful stripped hoodie and a black backpack to the front. He was told to put the hoodie on and hold the back pack which he did.
[ 42 ] They kept driving. The car turned left onto a road. As they were driving towards the parking lot he was told to exit the vehicle and given a note. He was told to take the note to the teller in the Bank, collect what he is given and then proceed out.
[ 43 ] Mr. Mohamed said that the person put the gun to him and told him to do it. He also said that the man warned him that if anything he had planned didn’t go through, he would shoot Mustafa.
[ 44 ] He got out of the car and read the note as he walked towards the Bank. It said: “I have a gun. Give me $20,000.”
[ 45 ] At the doors to the Bank, he pulled the hoodie up over his head, put the back pack on his shoulder and went in. He got a drink at a water cooler and then went to the closest teller and handed her the note. He said he was nervous. He was thinking about what might happen to Mustafa in the car. He said nothing.
[ 46 ] After he got the money, he put it in the back pack and walked out of the Bank calmly. The teller gave him the note back.
[ 47 ] He said he went towards the car. He walked normally. He then said pretty quickly, like speed walking. He denied he was running as the bank employee said.
[ 48 ] He got into the front passenger seat of the car. The car sped through the plaza. He asked Mustafa if he was ok. He didn’t respond.
[ 49 ] The car sped through the plaza. The car exited the plaza and turned left on Burnhamthorpe. As they were driving, the person in the backseat asked for the money and the bag. Mr. Mohamed gave them to him and asked him if he was going to hurt him. The person said no because he had done what he was told. He asked for the hoodie. He then said drop me off. Mohamed asked him where? The person responded: Mustafa knows. They made a right on Dixie Road and he got out of the car. His face was still hidden.
[ 50 ] Mustafa then drove off. He asked Mustafa who the person was. Mustafa didn’t reply. Mustafa told him not to tell anybody what happened. He said the person knows where you live, he’s seen your family. If you say anything, there will be some consequences.
[ 51 ] Mustafa then drove him to York University. He went to class. He said he was confused, stressing and scared for his family and himself. He was scared about the man in the back seat coming after them if he told anybody what happened.
[ 52 ] Dealing with Mr. Mohamed’s evidence, I am unable to accept what he says occurred shortly before and after he robbed the Bank on October 1, 2009.
[ 53 ] Mr. Mohamed was not credible as a witness. He was argumentative and at times arrogant in many of his answers on cross-examination. He was often unresponsive and answered a question with a question. Mr. Scandiffio submitted that I should allow him some accommodation given that he had never testified before. Even factoring that in, I found that he was unresponsive and at times rude when there was no call for it. Parts of his story were being challenged and rather than simply denying the suggestions he choose to avoid answering or be argumentative.
[ 54 ] Mr. Mohamed’s evidence also contradicted other evidence which I accept. He said that he’d never been in the Bank before and that his mother didn’t have an account there. But Ms. Na, the teller, recognised him as having been in the Bank before with his mother who she said had an account there. She was not challenged on this point. It is too coincidental that he is picked up at his house, which is some distance from the Bank and driven without any direction from him to the very bank branch where his mother has an account.
[ 55 ] He initially said he walked normally from the Bank to the car. He then said he walked pretty quickly, like speed walking. He denied he was running. Mr. Terbrugge, who followed Mr. Mohamed out of the Bank, said he was running. He was not far from him and had a clear view. I accept Mr. Terbrugge’s evidence.
[ 56 ] Mr. Mohamed denied that he knew a person called Mohamed Rodal. When the Crown showed him a picture of a person he said was Mohamed Rodal, Mr. Mohamed denied that he knew the person in the picture. The Crown established in reply through Mr. Fahel, the security guard who knew and initially identified Mr. Mohamed for the police that the picture was of a person called Mohamed Osmun. Mr. Fahel said that he had seen Mr. Osmun and Mr. Mohamed together a number of times and that they came to his building to use the gym. In my view, Mr. Mohamed was not telling the truth when he denied knowing the person in the picture.
[ 57 ] I had difficulty believing his evidence concerning the presence of the person in the back seat of the car or his story generally. As a result, I do not accept that there ever was a person present in the back seat of Mustafa’s car on October 1, 2009.
[ 58 ] I got the sense from time to time that he made up his story as he went along. Asked how tall the person was in the backseat, he initially said he couldn’t say and then in almost the next sentence said he was 5’10”, almost 6’.
[ 59 ] Mustafa was picking him up to drive him to school. Yet Mr. Mohamed never inquired about the person in the back seat when he first got in the car. He said he trusted Mustafa and therefore anyone Mustafa had in his car. It was not until they got on the highway and were driving in the wrong direction that he asked Mustafa what was going on. He said Mustafa didn’t reply. In fact, according to him he asked Mustafa questions about what was happening on five separate occasions while the person was in the back seat and Mustafa never replied once. Nor did Mr. Mohamed ever pursue a response.
[ 60 ] Mr. Mohamed told his story in the witness box to the point when he went into the Bank without initially saying anything about a threat. He said simply that he was told to get out of the car, take the back pack and go into the Bank. He said that when he was in the Bank, he was thinking about Mustafa in the car. When he was asked why, he said “the guy put a gun to me and told me to do this. At the same time I was worrying about Mustafa’s life and my life.” It was only later in his evidence, after he’d told the story and he was asked why he didn’t alert someone in the Bank that he said the person in the back seat had threatened to immediately shoot Mustafa if he didn’t do what he asked.
[ 61 ] He also said that he was afraid for his family because the person knew where he lived. He never said, however, that the person ever threatened his family. In fact he said that it was Mustafa that told him afterwards that the man knows where you live and if you tell there will be consequences.
[ 62 ] There is no question that a threat to a third party (in this case to shoot Mustafa) can be sufficient to establish duress. I am unable to accept, however, that there was a threat to shoot Mustafa as Mr. Mohamed has described it. In my view, based on his evidence, it is another example of fabricating the story as he goes. Even assuming the threat was made, in my view it is not sufficient to satisfy the first element of the defence.
[ 63 ] As Code J. points out in his discussion of the first element of the defence at paragraph 61 of Wilson , supra , “the accused must reasonably believe that the threat will be carried out”. In my view, based on Mr. Mohamed’s own evidence, I am unable to conclude it was reasonable for him to believe that the threat would be carried out. There was not sufficient information present to enable a reasonable person in Mr. Mohamed’s position to conclude that the threat would be carried out. He knew nothing about the person in the back seat except that he had a gun. He knew nothing about the relationship between Mustafa and the person in the back seat. The person was in the car when he first got in. He said he trusted Mustafa and therefore anyone Mustafa had in the car. As they drove towards the Bank, he asked Mustafa questions about what was going on but Mustafa refused to answer him. He did nothing to ask Mustafa about the person either before or after the alleged threat to shoot him was made to determine whether the threat was genuine or that the person would carry out the threat. On his evidence he simply got out of the car and proceeded to rob the Bank. In my view, a reasonable person in Mr. Mohamed’s circumstances, who was being forced to commit a serious criminal act, would at least attempt to determine whether the person in the back seat really would shoot his friend.
[ 64 ] Accordingly, as stated at the outset of my assessment of Mr. Mohamed’s evidence, for the above reasons I am unable to accept any of his evidence concerning what occurred on October 1, 2009.
[ 65 ] For the same reasons Mr. Mohamed’s evidence does not raise a reasonable doubt in my mind in respect of any of the elements of the offence.
[ 66 ] I find that the Crown’s evidence, all of which I accept, coupled with Mr. Mohamed’s admission establish beyond a reasonable doubt that he robbed Linda Na at the Bank of Montreal branch at 141 Saturn Road on October 1, 2009 of his own free will. The evidence which I accept establishes beyond a reasonable doubt that none of the elements of the common law defence of duress exist in this case.
Conclusion
[ 67 ] In light of my findings on the evidence, Mr. Mohamed’s proposed Charter application to declare section 17 of the Criminal Code invalid insofar as it excludes the defence of duress for robbery becomes academic. Even if it was successful and the common law defence of duress was available, based on my conclusions on the evidence, including Mr. Mohamed’s evidence, that defence would fail.
[ 68 ] Accordingly, I am not prepared to grant Mr. Mohamed’s request for an adjournment to permit the defence to bring a Charter application.
[ 69 ] To repeat, therefore, based on the Crown’s evidence which I accept and Mr. Mohamed’s admission that he robbed Ms. Na on October 1, 2009, I find that the Crown has established beyond a reasonable doubt that Mr. Mohamed is guilty of the offence of robbery of Ms. Na on October 1, 2009.
L.A. Pattillo J.
Released: March 14, 2012
COURT FILE NO.: CR 11-5000245-0000
DATE: 20120314
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED
REASONS FOR JUDGMENT Pattillo J.
Released: March 14, 2012