COURT FILE NO.: 10-A10698
DATE: 20120206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – SURAR AYAD and RASHAD MOHAMMAD HAQANI Defendants
James Cavanagh, for the Crown
Alan Brass, for the Defendant Ayad, Kimberly Hyslop for the Defendant Haqani.
HEARD: January 24, 25, 26, 27, and February 6, 2012
Reasons for Judgement
T.D. RAY, J
Introduction
[ 1 ] The defendants were tried before me on the following count:
That the said Surar AYAD & Rashad Mohammad HAQANI, on or about the 8th day of February in the year 2010 at the City of Ottawa In the East Region did rob Brandon Clouthier, contrary to section 344, subsection (l) of the Criminal Code .
[ 2 ] Mr Clouthier was 15 years old at the time of the alleged robbery on February 8th, 2010 and a student at Bell High School, Ottawa. It is alleged that the defendants, who were also students, approached him while he was in line with a friend in the school cafeteria, asked him to go outside with them, forcibly pushed him up against a wall and took his new I-phone, given to him as a birthday present. It is alleged they also took his wallet, but he managed to grab it back. It is also alleged that they told him not to tell anyone. Mr Clouthier went to the principal’s office to report the incident.
Issue
[ 3 ] The issue in this case is identity.
Crown Evidence
[ 4 ] The Crown evidence included that of the complainant, Brandon Clouthier, his friend Erica Stone, the school principal, the vice-principal, a video of a photo line-up, and Ottawa Police Cst Sheffield.
[ 5 ] Mr Clouthier is 16 years old and in Grade 11 at Bell High School. He started at Bell H.S. when he was 14. On February 8, 2010, he was in Grade 9 and had just turned 15. February 6, 2010 was his 15 th birthday. His mother had given him an I-phone. Mr Clouthier related that on Monday, February 8 at around noon, he was standing in line at the cafeteria with his friend Erica Stone. He had his new I-phone in his chest shirt pocket. Two persons approached him and said “come with us”. When he said “why?” one of them repeated in a “stronger tone” – “come with me”. Mr Clouthier left Erica and followed the two persons down a hall and outside beside a side entrance to the school. The one person, he identified as Rashad shoved him up against the wall and took his I-phone from his pocket then passed it to the other person. When he argued, they both ignored him. The person he identified as Rashad then said “give me your wallet”, reached and took Mr Clouthier’s wallet from his pocket. Mr Clouthier managed to grab his wallet back. Rashad told him not to tell anyone. The two persons left to return into the school.
[ 6 ] Mr. Clouthier said that after walking around for about 15 minutes feeling “pissed” and hitting the wall with his fist, he went to the principal’s office to report the incident. Mr Clouthier told the principal the one boys name was Rashad. The principal left Mr Clouthier alone for ten minutes then returned and asked him to leave. Mr Clouthier said that as he was leaving the principal’s office, he saw the two defendants through a window, sitting outside the office in an ante room. Messrs Ayad and Haqani did not return to Bell High School again.
[ 7 ] Mr Clouthier identified the defendants in court, and said he had seen them around school. He knew Rashad by name. Later, in cross-examination, he clarified that he knew Rashad by name from other students and it wasn’t until after February 8, 2010, that he learned that he was the brother of another student who he knew. He also clarified that at the time he was initially confronted in the cafeteria he wasn’t sure of his name, but later as he was walking to the principal’s office he realized he knew the person as Rashad. Mr. Clouthier said he had only seen the other person around school once or twice. Occasionally he would see them outside the school but on the school property. He recognized them both as being older and bigger than him, and thought that perhaps they were in Grade 12. Mr Clouthier described them as being about the same height but that Rashad was more muscular
[ 8 ] A police officer interviewed him at home that evening. He believed that he told her the identity of Rashad. A few days later he was interviewed by an Ottawa Police detective, and then April 14, 2010 he attended a photo line-up at the Ottawa Police station.
[ 9 ] The defendants objected to a video recording of the photo line-up going into evidence. Following argument, I ruled the video admissible on the authority of the principles in R v Langille 1990 6782 (ON CA) , [1990] O.J. No. 1718 , 75 O.R. (2d) 65 (ONCA) and R v Tat , 1997 2234 (ON CA) , [1997] OJ. No. 3579 , 35 O.R. (3d) 641(ONCA) . The video showed Mr Clouthier carefully going through the photo line-up procedure on April 14, 2010, of some twenty photographs and identifying likenesses of the two defendants. He appeared to carefully consider each photograph. Photographs in the second array in which he identified Mr. Haqani, consisted of approximately ten photographs. Mr Haqani’s likeness was the eighth photo in the array, and was the third or fourth likeness of an Arabic person.
[ 10 ] In cross-examination, Mr. Clouthier confirmed that at the preliminary hearing he had identified the fellow with the poufy hair as being approximately 6 ft tall. In evidence under cross-examination he agreed with the suggestion put to him that the fellow with the poufy hair was between 6 ft 1” and 6 ft 2”. Mr Clouthier also confirmed that he had only seen him once or twice. He estimated that Mr. Haqani was the same as his height – 6ft.
[ 11 ] Erica Stone was Mr Clouthier’s close friend. She was also a friend of Mr. Clouthier’s girlfriend. Mr. Clouthier and Ms. Stone first became friends in elementary school. Ms. Stone is one year older and a year ahead in school. She was in Grade 10 in February, 2010. It was the practice of Mr. Clouthier and Ms. Stone to meet in the morning before class and again at noon. On February 8, 2010, they had arranged to meet at noon so that Mr. Clouthier could buy her lunch for her from his birthday money he had received two days earlier. They were waiting in line in the cafeteria. She said that Mr Clouthier was showing her his new I-phone, when two persons she knew as Rambo and Poodle Puff approached them and called Mr. Clouthier over with hand signals and voice commands. They were approximately 20 ft away. She said that Mr Clouthier hesitated at first and then approached them. She said she was unable to hear any conversation between them. He returned to Ms. Stone, gave her the money for lunch, asked her to get him something as well and that he would meet up with her. Rambo, Poodle Puff and Mr. Clouthier left the area. She later learned that Mr. Clouthier had his I-phone taken from him. She also later learned that he had been seen in the principal’s office.
[ 12 ] Ms Stone said that the names Rambo and Poodle Puff were used by her friends to refer to the two boys because one of her friends had a crush on Poodle Puff. She said she saw the two boys almost every day in the hallways. She said they were both in the 17 to 19 age range, Arabic; and Rambo had short hair while Poodle Puff had his hair brushed out in a pony tail. She said they were of average height. She said that Poodle Puff’s hair was his most distinguishing characteristic. He was the only student at the school with hair like that. She said the two boys were almost always together. She later learned their real names. Ms. Stone identified the defendant’s Mr Haqani as Rambo and Mr. Ayad as Poodle Puff. Ms Stone was interviewed by the principal, Mr Whitehead after the incident. She said it was possible that Mr. Whitehead had mentioned their real names at that time, but could not say for sure.
[ 13 ] Bell High School had approximately 950 students and is located in the west end of Ottawa. It includes a number of Arabic students spread across all grades. The principal of Bell high school, Mr Whitehead, described his initial meeting with Mr. Clouthier on February 8, 2010 after the incident. Mr Clouthier was visibly upset and crying. Mr Whitehead saw him in the hall inside the main entrance – outside his office and suggested he come into his office. Mr Clouthier told him he had just had his I-phone stolen. Mr. Clouthier told him that the two boys who took his i-phone were grade 12 students. Initially he said that Mr. Clouthier said he didn’t know their names, and then after being shown one of his statements - that Mr Clouthier had given him both names. He finally settled on saying that Mr Clouthier had said only that one of the persons was Rashad, and the other person was a student in Grade 12 with “poufy hair”. The conversation was fairly lengthy and Mr Whitehead said he told Mr. Clouthier that he thought he knew who the individuals were. During cross-examination, Mr Whitehead said he did not notice Mr Clouthier’s hands being bruised (from hitting a wall).
[ 14 ] Mr Whitehead left Mr Clouthier alone after calling Mr Clouthier’s mother, and with the assistance of the Vice Principal went to the cafeteria where they located Mr Haqani and Mr. Ayad. They were described as being approximately 20 to 25 feet apart from each other. One was in the cafeteria and the other was in the line-up area. Both were cooperative and accompanied Mr Whitehead and the V-P back to the main office. The boys were questioned separately but by Mr Whitehead and the V-P together. They both emptied their pockets. Mr Haqani took him to a locker that he said he shared with Mr. Ayad. No I-phone was found. Recently, Mr Whitehead discovered that the locker he was shown (in the range #836 – #841) was not a locker registered to Mr. Haqani, but that an entirely different locker (#938) at a different location was registered to him. The lockers were about 100 ft apart. Mr Whitehead agreed that students frequently change lockers without advising the office.
[ 15 ] In cross-examination, Mr Whitehead said that Mr Ayad was not 6’1” or 6’2” tall but was close to his own height of 5’ 10”. He estimated Mr. Haqani’s height at 5’10”. He denied telling Mr Clouthier that “I got the guys”. He agreed that one of the two boys may have been visible to Mr. Clouthier as he was leaving the school. He also agreed that he would have expected other students to be in the area where Mr. Clouthier had said the confrontation had occurred since it was the accepted smoking location for students.
[ 16 ] Mr. Whitehead’s notes from time to time complicated his evidence. He said that he took handwritten notes as he was speaking to Mr Clouthier, and recorded the names of Messrs Ayad and Haqani. Two days later – February 10, 2010 – he prepared typewritten notes from his handwritten notes and updated the information. Then he added to those notes when he interviewed Erica Stone. He described the notes as personal notes which I interpreted as including his own conclusions or opinions rather than an attempt to segregate his notes for the purpose of recording interviews from notes of his own thoughts or conclusions.
[ 17 ] Mr. Kicul, the Vice-Principal of Bell High School is in his sixth year as V-P of Bell High School. Mr Kicul told of being called in by Mr. Whitehead to assist. He had little independent recollection, and relied heavily on his note. He described himself as being frequently in the hallways particularly at the beginning of school and at noon. He said he frequently saw Mr Haqani and Mr. Rashad in the halls. He knew them both and knew that they both had attendance issues. He described Mr. Ayad as having large hair pulled back in a pony tail. No other student resembled him. He recalled that on February 8, 2010, he assisted Mr. Whitehead in bringing the two of them into the office. His own notes were made February 18, 2010 and were based solely on memory. During cross-examination, he agreed that he had recorded that Mr Whitehead had told him that Mr. Clouthier had identified the two boys by name, but said he couldn’t say that Mr. Clouthier had actually said their names. Mr Kicul indicated that there was no smoking permitted on school property. A location on the other side of the school and across a road was the permitted smoking area – not the area where Mr. Clouthier described the incident with the defendants.
[ 18 ] Ottawa Police Cst Sheffield was called to the school on February 8, 2010, and met with Mr. Whitehead. Later in the evening she met with Mr Clouthier, and several days later met with Ms Stone. She confirmed she was told the price of the I-phone was $699, and a case $29.99. Cst Sheffield said that Mr. Clouthier had described the events and that he knew the name of the one boy as Rashad but not the name of the other boy. She did not have a note of any physical descriptions.
[ 19 ] The Crown filed with the consent of the defendants an exhibit which contained photographic likenesses of the defendants taken on different days and with different hairstyles.
Defence Evidence
[ 20 ] Mr Ayad elected not to call evidence.
[ 21 ] Mr Haqani elected to give evidence on his own behalf. He is 20 years of age and lives with his parents and 6 siblings. He said he has worked as an apprentice doing construction work for the past several months. His evidence in chief was very brief. He said he was not involved in the robbery and did not take the I-phone. In cross-examination, he agreed that Mr Ayad had long hair in February, 2010, and that he was with Mr. Ayad in the cafeteria area at noon on February 8, 2010. However, he denied speaking to Mr. Clouthier or seeing him as he walked through the cafeteria. The majority of his responses were “it didn’t happen”. He did not attempt to explain or place in a context his movements or his activities that day. His tone was aggressive, combative and perfunctory. He insisted that up until the week before April 24, 2010, he had long hair – until he was shown his photograph of February 18, 2010. He said that he had seen Mr Clouthier going through other people’s sports bags in the gymnasium the Friday before the alleged robbery, but insisted that he didn’t report it to the police because he didn’t believe it was any of his business. He said he was 5 ft 7 or 5 ft 8.
Defence Position
[ 22 ] The defendants take the position that their identity was not sufficiently made out chiefly because they say Mr. Clouthier misdescribed their height. Mr Haqani takes the position that his evidence and his denial at least raises a reasonable doubt, and that the photo line-up was lacking because it portrayed only four Arabic looking students. Mr. Ayad takes the position that the evidence shows that it was Mr. Whitehead, not Mr. Clouthier that identified him; and that the viewing of the defendants by Mr. Clouthier immediately after speaking to the principal amounted to prompting as to identity. He contends that the photo line-up was flawed because of Mr. Clouthier’s inadequate physical description.
Analysis
[ 23 ] The elements of the offence have been made out. As counsel indicated, identity is the only issue. Identity must always be treated very seriously because of the inherent frailties of eye witness identifications. Our legal history is replete with tragic examples of wrongful conviction based on inadequate identification evidence. A trial judge must pay particular attention to the evidence and must be scrupulous to apply the reasonable doubt standard in a careful and considerate manner.
[ 24 ] Because Mr. Haqani gave evidence, I must apply the principles in R v W (D):
“In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole.....”
And further: “ A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
[ 25 ] Reasonable doubt is closer to absolute certainty than proof on a balance of probabilities. ( R v Starr [2000] S.C.R. 40 2 paragraph 242 (SCC))
[ 26 ] After considering Mr. Haqani’s evidence, I cannot say that I am left with a reasonable doubt. His attempt to throw doubt on Mr Clouthier by accusing him of theft – which was denied by Mr. Clouthier - was dubious at best. He aggressively stated during cross-examination that he did not and would not report anyone to the police for theft yet did so during his evidence for self serving purposes. Overall, his evidence amounted to a series of denials. I find it impossible to conclude that there was much beyond the series of denials for me to weigh. Of course I cannot ignore the evidence of Ms. Stone and Mr. Clouthier in weighing his evidence. However, I expressly do not weigh the evidence of Mr Haqani as against the evidence of Mr Clouthier and Ms. Stone.
[ 27 ] In considering all of the evidence concerning identity, I cannot say that I am left with a reasonable doubt. Mr. Haqani knew Mr. Clouthier. He said he was in the cafeteria but did not see Mr Clouthier. He denied robbing Mr. Clouthier of his I-phone. Mr. Clouthier knew who the defendants were. He knew only the name of Mr. Haqani. Mr Ayad was well known by his distinctive hair.
[ 28 ] At the photo line-up on April 14, 2010, Mr Clouthier pointed to the likenesses of the two defendants without hesitation. He still may not have known both their names but he knew their identity. While, Mr Clouthier’s verbal description after he identified the defendants was very brief, I must keep in mind that fifteen year olds in Grade 9 are not commonly assertive, articulate, and wordy particularly with strangers. They are typically developing these skills through high school. Mr. Clouthier typified these characteristics during his evidence. While he was responsive, he was quite brief in his responses. I also note that the police officer who supervised the line-up did not follow up with further questions concerning Mr. Clouthier’s verbal description to him. Mr Clouthier’s verbal description was consistent with the likenesses that he identified. The defence suggested that Mr Clouthier failed to note Mr. Ayad’s eyebrows, yet there was nothing in the evidence to suggest that his eyebrows as a characteristic were any different than anyone else.
[ 29 ] The exchange with Mr. Whitehead and Mr Kicul are of little value since Mr. Whitehead apparently only knew the name of the students that had been described to him by Mr. Clouthier. Neither of them was in a position to identify who perpetrated the robbery. They could only put names to Mr. Clouthier’s description. None of them were strangers to each other. Mr. Clouthier was in fact able to confirm the identity of the defendants as he left Mr. Whitehead’s office when he saw them through a window. He still didn’t know Mr Ayad’s name but he knew his identity, just as he knew Mr Haqani’s identity. The defendants are quite critical with Mr. Whitehead’s evidence. The difficulty was because of the manner in which he kept his notes. He was unable to differentiate between what he had been told, and what his own thoughts or conclusions were. This went more to the reliability of his notes rather than their accuracy. A number of possibilities were put to him concerning these notes and their reliability. I am satisfied that he did not tell Mr Clouthier the name of the second boy. What Mr Whitehead recorded in his note was his own thought process as to what the name might likely be of the persons that Mr. Clouthier had described to him. To conclude otherwise makes no sense. Mr Clouthier was there and saw the two boys who took his I-Phone. He knew the name of the one boy. He just didn’t know the name of the second boy. Mr Whitehead would only know what Mr Clouthier told him. The fact is that Mr Clouthier looked in the window of the room where the two boys were sitting in the area of the principal’s office as he was leaving and identified them as the boys who had taken his phone only a few minutes earlier.
[ 30 ] Ms Stone had been at the school for a year and a half. I found her to be a very credible witness. She saw the two defendants every day. They were obviously the subject of much conjecture amongst her friends. In fact one of the girls had a crush on Mr. Ayad. Messrs Ayad and Haqani were described as being almost always together. She had no hesitation in identifying the defendants. Her evidence differed from that of Mr. Clouthier in various ways, as one would expect where two people have not compared their evidence. However, she was in no doubt as to the identity of the defendants.
[ 31 ] I do not consider that Mr. Clouthier’s description of the defendants’ height raises a reasonable doubt. He had just turned fifteen and was in Grade 9. The defendants were in Grade 12. I accept that he felt intimidated by these senior students, and possibly saw them as taller and bigger. Mr Whitehead said he knew them well and estimated their height as 5 ft 10. I don’t accept Mr Haqani’s evidence concerning his own height. It was totally self serving. It is reasonable that Mr. Clouthier’s estimate of the defendants’ height differ by two inches or more. This case differs from the authorities I was referred to in that here the defendants were not strangers; and further height was not as defining a characteristic as Mr Ayad’s hair. Mr. Clouthier knew Mr. Haqani just as Mr. Haqani knew who Mr. Clouthier was.
Conclusion
[ 32 ] I am satisfied beyond a reasonable doubt that Messrs Haqani and Ayad were the boys who spoke to Mr. Clouthier on February 8, 2010 at noon while Mr Clouthier and Ms Stone were in the cafeteria line. I do not accept Mr. Haqani’s evidence that he had nothing to do with taking Mr. Clouthier’s I-phone. I accept Mr. Clouthier’s evidence that the defendants walked him outside, shoved him up against the wall and forcibly took his I-phone. I accept his evidence that Mr. Haqani took Mr Clouthier’s wallet and unsuccessfully tried to stop Mr. Clouthier from grabbing it back. The elements of the offence of robbery have been made out.
[ 33 ] I find the defendants guilty of Count #1.
[ 34 ] By way of post script, I want to comment on the courage demonstrated by Mr. Clouthier in coming forward as he has done. A civilized society is judged by its respect for the rule of law. During this trial, I heard evidence concerning conflicting values. One witness said he would never report wrongdoing because it was none of his business. The other witness, a fifteen year old student in Grade 10, has demonstrated his courage and perseverance in supporting the rule of law. In particular, I note that Mr. Clouthier was interviewed by two detectives, attended a photo line-up, was examined and cross-examined at the preliminary hearing, and was examined and cross-examined at this trial. Defence counsel are experienced, were thorough, and conducted themselves as they were required to in questioning Mr. Clouthier closely on personal matters. It would have been very easy for him to decline to continue with this case. He must have felt enormous pressures. Societies throughout the middle-east are currently embroiled in courageous efforts to have the rule of law established as the centre piece of their lives. Just as we commend and support them for their efforts, I want to commend Mr. Clouthier for coming forward as he has done.
Honourable Justice Timothy Ray
Released: February 6, 2012
COURT FILE NO.: 10-A10698
DATE: 20120206
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and SURAR AYAD and RASHAD MOHAMMAD HAQANI Defendants REASONS FOR Judgement The Honourable Justice T.D. Ray
Released: February 6, 2012