ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-30000348-0000
DATE: 20130228
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMES IYANAM
E. Rokash, for the Crown
N. Dwyer, for the Defendant
HEARD: February 13-15, 2013
m.a. code j.
REASONS FOR JUDGMENT
A. OVERVIEW
[1] The accused James Iyanam (hereinafter, Iyanam) is charged in a four count Indictment with break, enter and theft, forcible confinement, robbery, and assault police. All four offences arise out of a single incident, on November 23, 2011, at a high rise apartment located in the east end of Toronto.
[2] Although the accused Iyanam pleaded not guilty on arraignment, to all four counts, he admitted the essential elements of the offence of break, enter and theft during his testimony at trial. The evidence on that count is overwhelming and the defence conceded that there must be a conviction. On the other three counts, the issues are narrow.
[3] The first issue relates to the counts of robbery and forcible confinement. As noted, the accused was admittedly involved in a break and enter of the apartment in question, together with an accomplice (who he identified during his testimony at trial as Jamal White). This initial break and enter offence evolved into a robbery and forcible confinement, when one of the occupants of the apartment unexpectedly arrived home. The main principal in the robbery and forcible confinement was undoubtedly the accomplice (White). He escaped and has never been charged. The issue in dispute is whether Iyanam joined with the accomplice in the robbery and forcible confinement, either as a co-principal or as an aider and abettor, or whether he remained nothing more than a party to the initial break and enter in which he had admittedly participated. The second issue in dispute relates to the count of assault police. When the police arrived at the apartment, also unexpectedly, both the accomplice and Iyanam made their escape out of the entrance doorway where the police were standing. There was some physical contact between Iyanam and one of the officers. The issue is whether that contact was intentional or accidental.
[4] Mr. Dwyer on behalf of the defence, and Ms. Rokash on behalf of the Crown, conducted the trial with skill and professionalism. They focused on the two narrow issues in dispute and negotiated sensible admissions concerning all the other issues that were not realistically in dispute. As a result, only a few witnesses had to testify and counsel were able to concentrate on the real issues. I am grateful to both counsel for their responsible and effective advocacy. I reserved judgment at the end of the short trial.
B. FACTS
[5] Given that the two issues in dispute are narrow, I intend to summarize the facts that are not the subject of any significant disagreement between the parties. I will then refer to the disputed areas of evidence in greater detail, later in my reasons, when applying the facts to the law.
[6] The victim of the break and enter, robbery and forcible confinement was one Lolita Richards. She had been involved in a motor vehicle accident and had received a $13,000 civil settlement. She initially deposited the settlement cheque in her bank account. She then unwisely withdrew most of the money in cash and kept it in a shoe box, hidden in the hall linen closet of her apartment. She told her boyfriend, one Bosco Edwards, about the hidden cache of money.
[7] On the morning of November 23, 2011, Ms. Richards and her boyfriend Edwards had a fight in which he put his fist through the bathroom door in her apartment. Edwards was a visitor in the apartment and he left. Ms. Richards called the police. The police came and Ms. Richards gave them a statement. The police then took Ms. Richards to a shelter. She had been staying in the apartment temporarily. It was rented by a friend of hers, named Shanika, who was not home at the time of the fight. Ms. Richards left most of her belongings, including the hidden money, inside the apartment.
[8] There is no dispute that Edwards must have told others about Ms. Richards’ $13,000 civil settlement and about the fact that the money was hidden in her apartment. On the same morning as the fight between Ms. Richards and her boyfriend Edwards, according to the accused Iyanam’s account, Jamal White phoned and said that he needed to talk. White drove to Iyanam’s apartment building and picked him up. White then told Iyanam that he had a “mission to get some money” and told him about the $13,000 hidden in Ms. Richards’ apartment. White had a number of girlfriends and he went on to explain that both he and Edwards were in relationships of some kind with Ms. Richards. He further explained that Ms. Richards owed him $900, that she was disrespecting him and not paying him back, and that he was going to break into her apartment and steal the money. Iyanam inquired as to whether Ms. Richards would be home. White assured Iyanam that she would not be home. At this point, Iyanam agreed to participate in the “mission” to break and enter the apartment and steal the money. Iyanam understood that the plan was to steal any and all money that they found, and not just the $900 that Ms. Richards allegedly owed to White. Iyanam expected to receive a “cut” of the stolen money, hopefully half of it, in return for his participation in the break and enter.
[9] Iyanam and White drove around for most of the day, running various errands. During this time they received text messages from Edwards who, by now, had been involved in the early morning fight with Ms. Richards. At some point in the late afternoon, White and Iyanam drove to Ms. Richards’ apartment building. White removed a short crow bar from the trunk of his car and they went up to the eighteenth floor apartment. They knocked on the door and made sure that no one was home. They proceeded to pry the lock and door handle completely off the door, leaving a hole in the door and wood splinters on the floor. They both took turns with the crow bar and made a fair amount of noise breaking into the apartment. Iyanam was worried that neighbours along the hallway had heard them prying off the lock and door handle and that the neighbours would call the police.
[10] White and Iyanam entered the apartment and searched for the hidden money. They both searched in the bedroom and then Iyanam searched in the living room, without success. It is a small bachelor apartment with one bedroom and one bathroom, giving off an entrance hall, with a kitchen and living room and dining area also giving off the end of the same hall. Iyanam was becoming anxious about the amount of time it was taking and about the noise that they had made. He has a criminal record and he was afraid that the police would come and catch him committing the break and enter. He looked out the window from the living room to see if the police were coming.
[11] At this point, Ms. Richards returned to the apartment. She had come back in the early evening, around 5:00 or 6:00 p.m., to pick up her belongings. She noticed wood and debris on the floor at the entrance to the apartment as well as damage to the lock and the door. She proceeded inside cautiously and was immediately grabbed by the back of her head and her hair. The man who grabbed her was disguised by a scarf pulled up over his nose, with only his eyes visible. Iyanam agreed in his testimony that the accomplice White had covered his face with a scarf. Ms. Richards became aware of a second bigger and taller man, inside the apartment, who was Iyanam. His face was not covered. She did not know Iyanam but she had seen him around the neighbourhood and she subsequently identified him in a reliable photo line-up conducted by the police investigators.
[12] Ms. Richards was placed flat on the floor in the bedroom. The man with the scarf covering his face repeatedly asked her, “where’s my money” and “where’s the money?” She did not initially understand what money they were looking for and she replied “what money?” She also tried to call the police on her cell phone but she was stopped. She could not see what was going on, as she was lying on the floor of the dark bedroom with one arm and shoulder under the bed. She heard drawers being opened and her purse being dumped on the bed, as well as some discussion about whether to keep her health card.
[13] Ms. Richards conceded, in cross-examination, that the man with the scarf over his face did all the talking. When demanding money, he referred inter-changeably to “my money” and “the money”. She did not know him. Iyanam did not speak to her and she assumed that he was out in the living room area while she and the man with the scarf were in the bedroom. Ms. Richards agreed that at one point she heard Iyanam ask the man with the scarf over his face, “what’s going on here?” She also heard him say something like, “let’s go”.
[14] Iyanam’s account of the events in the apartment, after Ms. Richards’ arrival, is critical to the issue of whether he participated in a robbery and a forcible confinement. I will analyze his admitted conduct in greater detail in the next section of these reasons. In summary, he testified that he saw White assault Ms. Richards as she entered the apartment, grabbing her by the back of the neck and hair and then sweeping her into the bedroom. Iyanam was standing in the living room, near the entrance to the hall, and he asked White, “what are you doing, let’s go”. White replied, “don’t worry, chill out, I’m going to get my money”. Iyanam remained in the living room and heard White and Ms. Richards yelling at each other. Iyanam repeated a second time, “yo, let’s go”, and White again told him to “chill”.
[15] At this point, Iyanam came to the door to the bedroom where he could see Ms. Richards seated on the floor in a narrow space between the bed and the wall. White was standing over her, between her and the door, effectively preventing her from leaving. Iyanam noticed a purse emptied on the bed. He assumed that it belonged to Ms. Richards. He saw a camera, a gold necklace, and a gold pen on the bedroom floor and he picked up these items. He put them in his pockets and said “let’s go” to White. Once again, White put his hand up and told Iyanam to “chill”. Iyanam returned to the living room. He briefly sat down and examined the camera. He thought that it looked nice and he put it back in his pocket.
[16] Ms. Richards and the accused Iyanam both testified that she had been in the apartment for about three to four minutes when there was a knock at the door. It was two police identification officers who had been sent to photograph the hole punched in the bathroom door that morning, allegedly by Bosco Edwards. As the police officers arrived, at about 5:00 p.m., they noticed the damage to the entrance doorway to the apartment. This was not what they had come to photograph. There are slightly differing accounts as to what happened next, which I will review in greater detail below when analyzing the assault police issue. However, the witness accounts are generally consistent on the following points: it was Iyanam who went to the door and determined that it was the police who had knocked and who were outside in the hallway; Iyanam then went to the bedroom door and conveyed this information to White; White took off his gloves and took the short crow bar from his back pocket and put it on the bed; Ms. Richards got up off the floor and White told her to tell the police that everything was okay; Ms. Richards pretended to agree with this plan and went towards the door; either the police or Ms. Richards opened the door and she immediately cried out “help me, help me”; it was dark inside the apartment but there were lights in the corridor outside the entrance doorway to the apartment; Ms. Richards ran past the two police officers at the door and ran down the corridor; Iyanam followed closely after her, making some contact with P.C. McNaughton as he ran out the apartment door; the accomplice White ran out next, making some contact with the second officer, P.C. Sawyer.
[17] The two perpetrators of the various offences in the apartment ran in different directions down the eighteenth floor corridor and they both escaped. P.C. McNaughton chased Iyanam down the corridor and down a stairwell. As Iyanam fled along the corridor, he dropped the necklace that he had picked up in the bedroom. He also dropped the camera that he had taken. He testified that these items simply fell out of his pocket. He may also have dropped some of Ms. Richards’ money, that was found with the camera in the stairwell, although Iyanam denied this.
[18] Iyanam descended in the stairwell to the eleventh floor and went to the elevators. The elevator stopped and the doors opened. Ms. Richards was inside the elevator, by complete chance, also trying to escape. Iyanam asked her, “why did you do that?” In his testimony, Iyanam explained this utterance, stating that he thought White and Ms. Richards were in some kind of a relationship and he could not understand her conduct. He did not get in the elevator. Instead, he returned to the stairwell and made his way down to the second floor corridor. He knocked on an apartment door. He asked the occupant to let him stay and call a friend who would come and pick him up. He offered the occupant of this apartment $100 but she refused to let him stay and wait for his friend. However, she did call a taxi for him and she gave him a glass of water. He was sweating and out of breath. Iyanam left both his fingerprint and his DNA on the water glass. As a result, he was arrested on January 19, 2012, about two months after the offence.
C. ANALYSIS
(i) Whether Iyanam participated in the robbery and forcible confinement
[19] The first issue concerns co-principal and secondary party liability to the offences of robbery and forcible confinement, both admittedly committed by the accomplice (White). Iyanam admits that he was a co-principal, with White, to the offence of break and enter and theft. He and White were both actively engaged in breaking open the door to the apartment and then stealing various items found inside. Mr. Dwyer, counsel for Iyanam, also makes the realistic concession that the accomplice White went on to commit the offence of robbery, once Ms. Richards arrived at the apartment. According to the testimony of both Ms. Richards and Iyanam, White grabbed Ms. Richards by the back of her neck and by her hair and aggressively swept her into the bedroom and onto the floor where he proceeded to demand money from her. This conduct, of which Iyanam was fully aware, constitutes the essential elements of robbery pursuant to s. 343(c) of the Criminal Code.
[20] Similarly, Iyanam conceded in cross-examination that he knew Ms. Richards could not realistically leave the bedroom. Two men had broken into her apartment, she had been roughly dragged into the bedroom, she was in a confined space on the floor, White was standing over her and blocking her path to the doorway while demanding money, and she was frightened. I am satisfied that the accomplice White was committing all the essential elements of a s. 279(2) forcible confinement and that Iynam was aware of all these facts. See: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).
[21] Once Iyanam was fixed with knowledge of the robbery and forcible confinement offences being committed by his accomplice White, he proceeded to do the following acts:
• First, he initially remained in the living room, anxiously urging White that it was time to leave while looking out the window to see if the police were arriving;
• Second, he went to the bedroom door, stepped inside and picked up the gold necklace, gold pen, and digital camera that were strewn on the floor, and that he assumed belonged to Ms. Richards, and put them in his pockets. He testified that he did not initially intend to take these items, they simply caught his attention, and he wanted to look at one or more of them more closely. Mr. Dwyer realistically conceded that at some point, Iyanam’s taking and keeping of these items became, at a minimum, theft by conversion;
• Third, he heard a knock at the front door, went to the door and determined that it was the police, and then proceeded to the bedroom door and told his accomplice White that the police had arrived. White then got rid of the crow bar and made a plan that would allow them to escape, telling Ms. Richards to go to the apartment front door and tell the police that everything was alright. Iyanam and White then followed Ms. Richards out the front door and ran past the two police officers.
[22] I am satisfied that the above actions by Iyanam all constitute the actus reus of aiding the offences of robbery and forcible confinement. By watching for the arrival of police, stealing some of Ms. Richard’s valuables, and alerting White to the eventual arrival of the police, Iyanam undoubtedly assisted White in carrying out the robbery and forcible confinement and in successfully making his escape. As Dickson J. (as he then was) put it in the leading case of R. v. Dunlop and Sylvester (1979), 1979 20 (SCC), 47 C.C.C. (2d) 93 at 106 (S.C.C.), speaking for the majority:
Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. [Emphasis added].
[23] Given that the actus reus for s. 21(1)(b) aiding has been made out, the only live issue relating to Iyanam’s liability, as a secondary party, is whether he had the requisite mens rea for aiding the offences of robbery and forcible confinement. Iyanam testified that he did not want to be there in the apartment, once the break and enter had deteriorated into a robbery and forcible confinement, and that he repeatedly urged White to end it and leave. However, he frankly acknowledged that he made a choice to stay because he wanted to leave with White. It was White who had driven Iyanam there and he wanted White to give him a ride home. He agreed that he could have left on his own and taken a taxi, effectively abandoning White, but it was cold outside, he did not want to pay for a taxi, and he expected White to drive him back to where he had first been picked up that morning. Iyanam conceded that it was an unfortunate mistake that he had stayed and waited for White and that he now regretted this mistake.
[24] Iyanam’s conduct, in stealing from Ms. Richards while she was being assaulted, threatened and confined by White, potentially made him a co-principal to the offence of robbery. In other words, he was arguably more than a mere s. 21(1)(b) aider or secondary party. It is, therefore, the mens rea for either co-principal liability or secondary party liability or both that must be considered in this case. In R. v. Mena (1987), 1987 2868 (ON CA), 34 C.C.C. (3d) 304 at 313-319 (Ont. C.A.), the main principal in a robbery, one Sherlock Yee, brandished a gun, threatened the owner of a jewelry store and made him lie on the floor. Another party, the Appellant Mena, watched over the victim and carried out some of the stolen jewelry in a shopping bag. Mena’s defence was duress and so it was important to determine whether he was a co-principal or merely an aider and abettor. In the former case, duress would not be available as a defence. Martin J.A. gave the judgment of the Court and held that it was a factual issue for the jury to decide, as to whether Mena was a co-principal or simply an aider and abettor. Martin J.A. set out the leading text writer’s definitions of co-principal liability, including the following (supra at 315 and 317):
In Textbook of Criminal Law, 2nd ed. (1983), p. 330, Glanville Williams says:
Two persons may be guilty as joint perpetrators; and part of a crime may be committed by one perpetrator, another by another. Thus, in robbery, which involves the two elements of theft and threat, one person may steal while his companion makes the threat of force, and they are co-perpetrators.
It is, I think, clear that in the above passage the author is referring to the case where two people have acted in concert to commit a robbery as a joint enterprise.
On the appellant’s version, although he had carried a part of the stolen goods from the store on Yee’s command, he had not taken the goods from the showcase. It may be that, apart from the doctrine of duress, carrying the goods from the store would have made him a party to the robbery: see R. v. Campbell (1899), 1899 96 (QC CS), 2 C.C.C. 357. It is, however, unnecessary to decide that question. Nevertheless, in order to have himself committed the robbery under the co-perpetrator doctrine and, hence, be disentitled to the defence of duress by s. 17, it would, in my view, be necessary for the Crown to satisfy the jury beyond a reasonable doubt that the appellant intended to act in concert with Yee. [Emphasis added].
Also see: R. v. Pickton (2010), 2010 SCC 32, 257 C.C.C. (3d) 296 at paras. 62-9 (S.C.C.); R. v. Ball (2011), 2011 BCCA 11, 267 C.C.C. (3d) 532 (B.C.C.A.).
[25] It can be seen that Iyanam’s act of stealing from Ms. Richards, while White assaulted, confined, and demanded money from her, is a proper basis for co-principal liability, provided Iyanam and White were acting “in concert”, that is, pursuant to a “common intent” to commit robbery. Similarly, to find that he was an aider pursuant to s. 21(1)(b) of the Criminal Code, Iyanam’s “purpose” when stealing from Ms. Richards and keeping watch for the police, must have been to assist White in what Iyanam knew was a robbery. The statutory term “purpose”, used in this s. 21 context, means “intention”. See: R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 at 205-214 (S.C.C.).
[26] Most importantly, given the facts in this case, “intention” in the above two contexts includes foresight or knowledge that the consequences of Iyanam’s conduct would undoubtedly be to provide assistance to White in carrying out what had become a robbery and forcible confinement. Iyanam’s ulterior objective or motive was to escape from the apartment with White. In order to achieve this goal, however, he knew that waiting and watching at the window, checking when he heard the knock at the door, and advising White that the police had arrived, would all provide assistance to White in successfully completing the robbery and forcible confinement. It may not have been Iyanam’s purpose, in the sense of his motive or desire or ulterior objective, to assist White in successfully completing the robbery and forcible confinement. But it was his purpose, in the sense of a substantially certain and known result of his conduct, to assist in this way. As Martin J.A. explained, giving the judgment of the Court in R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 49 C.C.C. (2d) 369 at 383-4 (Ont. C.A.):
There is, however, substantial support for the proposition that in the criminal law a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct...
[27] Over fifteen years after the Ontario Court of Appeal decided Buzzanga and Durocher, the Supreme Court of Canada unanimously reached the same conclusion concerning the extended meaning of “intention”. Lamer C.J.C. gave the judgment of the Court in R. v. Hibbert, supra at 208-9 and 212...
[28] I am satisfied that Iyanam had the necessary intent to make him a s. 21(1)(a) co-principal and a s. 21(1)(b) aider, in White’s robbery and forcible confinement of Ms. Richards...
(ii) Whether Iyanam intended to apply force to P.C. McNaughton as he escaped out the door of the apartment
[29] The evidence on this second issue is not as clear, given that the four principal witnesses all gave somewhat different accounts...
[30] P.C. McNaughton, the victim of the alleged assault, testified that he knocked at the door twice...
[31] The second officer, P.C. Sawyer, testified that the officers knocked twice...
[32] Iyanam’s account was that Ms. Richards went to the apartment door...
[33] Ms. Richards’ account is that she went to the apartment door...
[34] In spite of these varying accounts, there is agreement on three points which all have exculpatory effect...
[35] In all these circumstances, I have a reasonable doubt as to whether Iyanam’s contact with P.C. McNaughton was intentional...
D. CONCLUSION
[36] In the result Iyanam is guilty on counts one, two and three but not guilty on count four.
M.A. Code J.
Released: February 28, 2013
COURT FILE NO.: CR-12-30000348-0000
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES IYANAM
REASONS FOR JUDGMENT
M.A. Code J.
Released: February 28, 2013