ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-12080

DATE: 2013/04/05

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ABDULLAHI OSMAN
Appellant

Moiz M. Karimjee, for the Respondent

Leonardo S. Russomanno, for the Appellant

HEARD: March 13, 2013

On appeal from the convictions entered on december 22, 2011 by justice s. a. march of the ontario court of justice

C.D.A. McKinnon J.

[1] The appellant was convicted of being outside his home without the presence of a surety and consuming alcohol in violation of a recognizance entered into before a Justice of the Peace, in violation of s.145 of the Criminal Code. The offences occurred on October 15, 2011.

[2] Counsel for the appellant submits that the identification evidence which led to the conviction of the appellant was fatally flawed and that the appellant should be acquitted or, alternatively, be granted a new trial.

[3] Notwithstanding, Mr. Russomanno’s very able argument, for the reasons that follow, the appeal is dismissed.

The Facts

[4] On the evening of October 15, 2011, Constable Walrond, a member of the Direct Action Response Team, otherwise known as the DART Unit of the Ottawa Police Service, together with other members of the team, attended at 2561 Regina Street, unit 206, in the City of Ottawa. The mandate of the DART Unit is to investigate gangs and trafficking in firearms. Constable Walrond had information that people believed to be gang members were dealing drugs from that unit.

[5] Shortly after 7:00 p.m., Constable Walrond and members of his team knocked on the door. Whispering and shuffling of feet could be heard. Finally, a voice was heard saying “I’m coming.” The door was opened and a man invited Constable Walrond and his fellow DART members into the residence. The man identified himself as Michael McCormick. During a conversation between Constable Walrond and Mr. McCormick, Mr. McCormick denied any involvement in the trafficking of drugs and could not explain how certain drug paraphernalia got into his apartment. He later admitted that from time to time he let young people into his apartment to “chill and hang out on weekends,” in exchange for which they offered him cocaine.

[6] Constable Walrond mentioned that he had heard voices and movement inside the apartment. Mr. McCormick advised Constable Walrond that certain individuals had been in his apartment and had left through the back patio door.

[7] Constable Walrond went out onto the patio. It was dark and raining. He looked around the wall attached to the neighbouring unit and saw a person pressed up against the wall. In his notes, Constable Walrond described the person as “a black male, dressed in black clothing.” Constable Walrond himself is a black man. He apprehended the individual and walked him back towards the balcony. He asked the individual whether he lived there and the individual said he did not. He asked the individual what he was doing there, and the individual declined to answer. He arrested the individual for trespass at night.

[8] The individual was brought back into Mr. McCormick’s apartment, which was well lit. Constable Walrond continued to have a discussion with the individual. He detected an odour of alcohol on the individual’s breath. The individual told Constable Walrond that he had been drinking and was “simply chilling with his friends at the apartment.” Constable Walrond cautioned the individual and informed him of his right to counsel. He was then escorted to Constable Walrond’s police vehicle.

[9] The individual identified himself as Mohammed Youssef, date of birth August 18, 1990, residing at 34 Windways Crescent. He also provided a phone number. Because the verbal identification that the individual gave Constable Walrond generally matched the Ottawa Police records management system for a person named Mohammed Youssef living at that address, the decision was made to release him by way of a promise to appear. The only discrepancy was that the birth date was two days out, which did not concern Constable Walrond. Constable Walrond decided to drive the individual home.

[10] Constable Walrond identified the individual as being the accused in the court room. When asked to describe the individual he stated:

I’d say he’s just about my height or a little shorter…he was a little thicker than me. At the time he had like - not like a tight afro but like wavy - I call it kinky hair. I wasn’t really making any sort of specific observation other than he is a person that’s under arrest…anymore than like I would be making of you right now. (referring to Crown counsel who was questioning him in court.)

[11] On arriving at 34 Windways Crescent he knocked on the door. Individuals were in the residence but were reluctant to speak to Constable Walrond. He told them that they were not in trouble, that he just wished them to identify someone. Eventually a young man named Liban Youssef came out. Constable Walrond directed his flashlight at the individual in the back of the cruiser so that the young man could see the individual, Constable Walrond asked, “Who is this?” Liban Youssef replied, “That’s my brother.”

[12] Constable Walrond estimated that he was with the individual at the very least for 30 minutes and probably closer to one hour. He was asked by Crown Counsel, “Now how good a look would you get of his face?” He answered, “As good a look as I’m getting at your face right now.”

[13] A few days later, Constable Walrond ran Mohammed Youssef’s name through the police computer to determine any past dealings with the police. One incident involved a mischief call occurring in a movie theatre at which point the police were called and certain individuals were identified, including Mr. Youssef and three others. Constable Walrond looked at the photos of the individuals. When he saw a photograph of an individual known as Abdullahi Osman he immediately realized that the individual he had arrested and driven to 34 Windways Crescent was the individual in the photograph. He testified, “As soon as I saw his photograph, I’m like – that’s the guy, that’s the guy from the balcony at 2561 Regina Street.”

[14] A photograph of Mr. Osman was filed. It can be fairly stated that Mr. Osman is a black male with distinctive features.

[15] On further investigation Constable Walrond learned that on the night of October 15, 2011, Mr. Osman was bound by a recognizance including that he not be away from his residence without a surety and not consume alcohol. The records management system of the Ottawa Police had Mr. Osman listed as residing at 20 Windways Crescent, a few houses away from 34 Windways Crescent. However, the national Canadian Police Information Center (CPIC) report listed his address as 351 Abbeydale Circle.

[16] Constable Walrond decided he would attempt to locate Mr. Osman. On October 19, and 20, 2011 he attended 351 Abbeydale Circle. No one answered the door on either occasion.

[17] On October 20, 2011, he proceeded to 34 Windways Crescent where he had dropped off the individual on the night of October 15, 2011. There he met Mr. Mohammed Youssef. The person produced an Ontario Driver’s Licence to identify himself. Constable Walrond was asked what Mohammed Youssef looked like in relation to the person he had arrested on October 15, 2011. He said, “They look absolutely nothing alike.”

[18] On October 27, 2011 he re-attended at 351 Abbeydale Circle and asked the female who answered the door, who proved to be Mr. Osman’s mother, whether Abdullahi was home. He was. Abdullahi came up from the basement. Constable Walrond was asked by Crown counsel, “And what did you think once you saw him?” Constable Walrond answered, “If you’re referring to, is this the same guy from the 15th, then 100 percent. Like this is the guy I was dealing with at 2561 Regina Street.”

[19] When cross-examined, Constable Walrond agreed that his notes referred only to “a black male dressed in black clothing” when he initially observed the man outside the Regina Street residence on the night of October 15, 2011. There are no further notes of descriptors. He testified that he was not paying attention to height or weight at the time. He testified that he did not think identity was an issue and that he was perusing the file of Mr. Youssef simply to determine what sort of activity he had been involved with in the past, at which point he saw the photograph of Mr. Osman, which struck him immediately as the individual whom he had in fact been dealing with.

[20] Constable Walrond did not produce the photos of the other individuals at trial, nor did he attempt to conduct a photo line-up for the other police officers who had accompanied him. Constable Walrond reiterated that in his mind there was no issue of identity. Nonetheless, his police action report stated, “Identity was an issue and so Youssef was driven home to 34 Windways, where he said he lived with his mom and brother Liban.” It is further noted that, “after further investigation it was learned that the male that I charged for prowl at night was not in fact Mohammed Youssef but rather an adult male, Osman.”

[21] In re-examination he was asked to reconcile his evidence that identity was not an issue with his note in his police action report that identity was an issue. Constable Walrond explained:

Well, identity wasn’t an issue, whereas I thought like this guy is completely lying about who he is. Like, there’s no way this guy is Mohammed Youssef. But in the back of your mind you’re like, you know what? I just want to make sure for myself that this guy is Mohammed Youssef. So there was like that thing in the back of your mind that says, you know, I just want to make sure. But it wasn’t like I know for certain this guy is not Mohammed Youssef. That’s all that I meant by it.

[22] Once he brought Mr. Youssef to 34 Windways and the individual was identified by young Liban to be his brother, Constable Walrond stated, “I believed that Mr. Mohammed Youssef was in fact Mr. Mohammed Youssef and I had no reason to bring him downtown.”

[23] Constable Jeffrey Simpson accompanied Constable Walrond on the night of October 15, 2011 and dealt with the individual who was arrested. He was inside 2651 Regina Street, unit 206 on the night in question. He testified that Constable Walrond went out on to the patio and returned with an individual. Constable Simpson identified the individual as the accused sitting in the courtroom. He made no specific notes on the description of the individual. He simply recalled that he was “a black male, fairly tall, wearing dark clothing.” He recalled that the individual was asked several questions in the apartment by Constable Walrond. Following that, he followed Constable Walrond in his own cruiser to ensure the safety of Constable Walrond in the drive to 34 Windways Crescent. He was outside the car situated beside Constable Walrond when young Liban Youseff came out to identify the individual in the back of the car, whom Constable Walrond was pointing out with his flashlight. When asked how he could identify the individual, Constable Simpson stated, “because I recognize him.” He was asked if anything else stood out and Constable Simpson stated, “His face. I’d recognize him just like I’d recognize anybody else.” He stated that he was engaged with the accused for approximately 45 minutes.

The Disposition at Trial

[24] In his reasons for judgment, the learned trial judge reminded himself of the frailties of eyewitness identification, and stated:

Concerning this matter, there are certain principles that are clear concerning identification evidence that the court has to keep in mind. Firstly, eyewitness identification evidence is inherently frail. It must be scrutinized carefully in order to ensure that there are no wrongful convictions. Secondly, the court should not confuse an honest, sincere, confident witness with a reliable witness. It is necessary to examine the basis of the identification carefully to ascertain that the Crown has met the onus on it.

[25] The learned trial judge referred to the seminal authority, R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), and referred to the court’s statement that, “The weight of eyewitness identification will obviously vary greatly depending on the circumstances.” He stated:

It is necessary then to examine all the circumstances which can include the following: prior knowledge of the person being identified by the witness; the outstanding characteristics of the person being identified that made the identification certain; the physical conditions surrounding the observations by the witness, that is, the lighting conditions; the length of time for observations; the closeness of the witness to the person being described; the stress that the witness is going through when making the identification; the reason why the witness is observing the person to be identified; the ability of the witness to recall accurate details; the number of observations of the person by the witness; and the care taken by the witness when making the observation.

…I have applied these principles to this case. It is my decision that I am satisfied that the Crown has met the onus on it beyond a reasonable doubt that the person arrested in unit 206 on October 15, 2011 is the accused before the court. This is based on the following. Constable Walrond had a lengthy time to see the accused – between 30 to 60 minutes. He made his observations in an apartment that had good lighting. There were no obstructions to the officer seeing the accused and he was close to him. There were several opportunities to make these observations, both at that unit and later at 34 Windways where the accused was released. There was interaction between the officer and the accused involving questions and answers.

This is not a case of a fleeting glance where something unexpected happens to the witness. Constable Walrond was in the execution of his duty and was arresting the accused. It was not the high stress type of situation where a witness may observe a robbery or an assault. Of great importance to my decision is how Constable Walrond make the identification of the accused about four days after the incident. Constable Walrond is preparing his court brief and checks out Mohammed Youssef. It is in the course of that action that he sees the picture of the accused and realizes that the person that he charged was not Mohammed Youssef, but rather the accused. This is a far cry from a witness being shown one photo and asked if it is the perpetrator.

Further, Constable Walrond then goes to check out the matter. He sees Mr. Youssef at 34 Windways a few days later after October 15, 2011, and determines he is not the person he arrested. On October 27, 2011, about 12 days later, he goes to the accused’s residence and confirms he is the person that he has charged.

In my view, the failure by Constable Walrond to hold a photo line-up of the pictures of the accused with the other police who were present is not fatal to his identification. I have considered, coming to my decision, that Constable Walrond has no notes to describe the accused other than a black male with black clothing, which is of no assistance.

Defence counsel has suggested the lack of details in notes by Constable Walrond description as fatal. In some cases the lack of notes may be fatal, however the court is required to look at all the circumstances. Here, for the factors that I have already outlined, which include the length of time of the observations, being between 30 to 60 minutes in an arrest situation; the discovery of the photo of the accused by accident by the officer; the subsequent observation of the accused at his home, the shortness of time of these observations between October 15 and October 27, 2011, allow me to find that the lack of notes of the description does not raise a reasonable doubt.

Further, the trial occurred on December 14, 2011, about two months after the arrest on October 15, 2011. This is not the type of case where memory fades due to a long period of time between the arrest and the trial.

I have also considered the evidence of Constable Simpson who was present at the scene and gave evidence two months later that the accused before the court is the same person that was at the scene. This evidence is of some value to the Court, although on its own it would not be sufficient to establish identification. This can be considered to be confirmatory evidence, although there is no other confirmatory evidence.

I have also considered in coming to this decision the lack of any previous knowledge by the officers of the accused as one of the factors but it did not raise a reasonable doubt, in my view.

To conclude, I am satisfied beyond a reasonable doubt that the person arrested by Constable Walrond on October 15, 2011 is the accused before the court.

The Appeal

[26] Mr. Russomanno submitted that the learned trial judge erred by attributing significant weight to the identification made by Constable Walrond on October 17, 2011, after he had already seen the photo of the appellant; erred by attributing value to the in dock identification made by Constable Simpson and finding that it constituted confirmatory evidence; failed to scrutinize adequately Constable Walrond’s blanket assertion of recognition, given without any reference to what it was that allowed him to identify the appellant; and submits that the verdict was unreasonable.

The Law on Appeal

[27] The standard of review on appeal where an appellant asserts that a conviction is unreasonable is set out by the Supreme Court of Canada in R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, in which the court stated in para. 14:

In proceedings under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it…Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.

[28] The role of an appellate court is to determine whether, on the facts that were before the initial trier of facts, a jury properly instructed and acting reasonably could convict. The appellant court may disagree with the verdict, but provided the accused has had a trial in which the legal rules have been observed no complaint can be upheld if there is, on the evidence, a reasonable basis for the verdict: R. v. S.(P.L.)[P.L.S], 1991 103 (SCC), [1991] 1 S.C.R. 909.

[29] In R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, Justice Blair reviewed the special scrutiny permitted Appellate Courts in identification cases and cited Justice Doherty’s comments in R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), to that effect. Ultimately, at para. 21 of the decision, Justice Blair stated:

Although I accept the appellant's argument that the eyewitness identification of the appellant as the perpetrator of the crimes against Mr. Philipose and Mr. James is flawed and frail in this case, I am not satisfied that disposing of the appeal on unreasonable verdict grounds is the appropriate route in the circumstances. To do so I would have to be persuaded that, on the record before the trial judge, no properly instructed trier of fact acting judicially could reasonably have convicted the appellant: see R. v. Tat at para. 98 and R. v. A.(F.) at para. 35. In the end, I do not think the record supports such a conclusion.

[30] The most compelling authority that might assist the appellant is that of R. v. F.A., (2004), 2004 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.). In that case the appellant had been in the presence of the victim for a number of hours before the victim was viciously assaulted. Two eyewitnesses identified the appellant as being the assailant. A third eyewitness did not. More germane, however, was the description of the person who committed the assault as being “guy with white towel, 6 feet tall, thinner than me, 160-165 lbs, no facial hair, long hair outside towel, dreads.” In that case the police officer included the accused as one of three suspects and told the victim that “he was going to bring in a couple of suspects.” The police officer did not tell the victim that the guilty party might not be in the line-up.

[31] The case must be read very carefully because, as noted at para. 51, at the time of his arrest the appellant had short curly black hair, a moustache and a goatee. None of the Crown’s eyewitnesses suggested that the assailant had any facial hair. The court stated at para. 59 that “The description of the assailant provided by the eyewitnesses did not describe the appellant.” Read carefully, the case of F.A. is very different than the case at bar.

[32] Mr. Russomanno submits that the in dock identification by Constable Simpson of the appellant should not have been permitted at all. During the course of oral argument he accepted that the in dock identification was not a question of admissibility but one of weight: R. v. Hibbert, [2002] 2 S.C.R. 61.

[33] Because the evidence of Constable Simpson was admissible, the learned trial judge was permitted to rely on it as confirmatory evidence. The learned trial judge was careful to minimize the weight of that evidence in accordance with the authorities. As was stated in Hibbert, each case must be dealt with on its own facts.

[34] In this case, Constable Simpson had ample opportunity to observe the appellant on the evening of October 15, 2011. He was present when Constable Walrond pointed his flashlight at the appellant in the back of the police cruiser, and young Liban Youssef identified the appellant as being his brother. He next saw the individual two months later in court. There is nothing in the facts to suggest that Constable Simpson was subjected to any inappropriate prompting to identify the appellant. That being said, in court identification involving an accused is of little weight. Nonetheless, it is evidence upon which a trier of fact can rely. The learned trial judge did not err in so doing.

[35] More salient is the fact that Constable Walrond was the officer primarily involved with the appellant. He had ample opportunity to observe the appellant. He happened upon his photograph by accident, not bias or predisposition. He satisfied himself that the appellant was not Mohammed Youssef, a person who looked “absolutely nothing” like the appellant. He then satisfied himself that the appellant was in fact the individual he had dealt with in the night of October 15, 2011. His conduct was undertaken in good faith. When Constable Walrond testified that there was no issue involving the identification of the appellant, I understand him to mean that the identification of the appellant was obvious, given the circumstances.

[36] The fact the appellant had an address a few doors away from Mohammed Youssef and pretended to reside in the residence of Mr. Youssef, adds further proof that he is in fact the person who was present in the apartment on October 15, 2011. His attempt to deflect suspicion from himself and onto Mr. Youssef, aside from being shameful, is indicative of him being the guilty person.

[37] In sum, I am satisfied that the conviction is manifestly supported by the evidence. The learned trial judge applied the appropriate law in arriving at his decision.

[38] In the result, the appeal from conviction is dismissed.

C.D.A. McKinnon J.

Released: 2013/04/05

COURT FILE NO.: 11-12080

DATE: 2013/04/05

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

– and –

ABDULLAHI OSMAN
Appellant

on appeal from the convictions entered on December 22, 2011 by justice s. a. march of the ontario court of justice

C.D.A. McKinnon J.

Released: 2013/04/05