CITATION: R. v. Abdulhakim, 2013 ONSC 3147

COURT FILE NO.: 10-340000-162-0000

DATE: 20130527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KAMAL ABDULHAKIM

M. Iny, for the Crown

J. Scandiffio, for Abdulhakim

HEARD: May 13-16, 2013

THORBURN J.

REASONS FOR JUDGMENT

I. THE ISSUE

I. THE ISSUE

1Kamal Abdulhakim is charged with the following offences:

i. robbery of Abdifatah Farah contrary to section 344(1)(b) of the Criminal Code, R.S.C., 195, c. C-46;

ii. robbery of Mustafe Ducaleh contrary to section 344(1)(b) of the Criminal Code;

iii. use of an imitation firearm while committing the offence of robbery contrary to section 85(2)(a) of the Criminal Code; and

iv. having his face masked with the intent to commit an indictable offence contrary to section 351(2) of the Criminal Code.

2There is no dispute that two men entered the Bilal restaurant and tried to rob it using an imitation silver handgun. The key issue to be determined is whether Abdulhakim was the first assailant who confined Ducaleh and assaulted him with the intent to steal money from the safe at the Bilal restaurant.

II. THE EVIDENCE

What Happened

II. THE EVIDENCE

3On Tuesday August 10, 2010, at approximately 12:07 p.m. two men entered the front door of the Bilal restaurant at 321 Rexdale Boulevard in the City of Toronto. At the time only Farah and Ducaleh were in the restaurant.

4Ducaleh testified that he was in the kitchen preparing food when the first assailant came in holding a gun, kicked him several times and asked where the safe was. He was told to lie on the ground. He told the first assailant there was no safe and the assailant kicked him again. The first assailant then pushed him toward the cash register. Ducaleh showed him the cash. The first assailant said this was not what he was looking for and continued to kick Ducaleh while he was on the ground. Ducaleh sustained a number of bruises and cuts and injured his finger.

5Meanwhile, the second assailant was with Farah in the dining area of the restaurant. When the first assailant did not find anything, the second assailant took Farah from the dining to the kitchen and hall area at the rear of the restaurant. The assailants tried to find the safe and take money but did not find it.

6Ducaleh said the first assailant was going to get a hot pot of liquid to pour on him. Ducaleh ran out the back entrance of the restaurant and around to the front of the restaurant. He yelled “Help me” and ran past the garage next door where several people were gathered.

7Ducaleh said he saw the two assailants running away from the front door of Bilal restaurant from a distance of approximately 40 feet. The first assailant ran east and the second ran west.

8Ducaleh chased the first assailant who ran across Rexdale Boulevard to the north side of the street. Ducaleh saw a police car travelling eastbound on Rexdale Boulevard. He pointed at the man running and told police he had been robbed. Ducaleh said he saw the police car chase the man into a parking lot between buildings 306 and 312 on the north side of Rexdale Boulevard.

9Both officers Rendon and Ahluwalia testified that Ducaleh stopped their police car as it was driving on Rexdale Boulevard and told them he had been robbed by the man he pointed at.

10Officer Rendon noted that it was a clear sunny day. Both officers followed the male as he ran. The male ran through the parking lot between buildings 306 and 312 to the end of the parking lot. When the male got to the end of unit 306 the officers exited their vehicle and were 10 to 12 feet from the male. They told him to stop but he ran a few more steps east when he was stopped by police, detained and arrested. Because the male resisted arrest he was taken to the ground and handcuffed.

11Officer Rendon says he lost sight of the male running for only one half second as the man turned right at the end of the parking lot. Officer Ahluwalia testified that he was able to see the male throughout, from the time Ducaleh pointed him out until the time of the male’s arrest.

12Both officers testified that at the time the male was chased and apprehended, no one else was on foot in the parking lot.

13Officer Ahluwalia said he saw the accused throw a blue coloured bandana underneath a green pick-up truck as he and Officer Rendon caught up with the male between two cars at the end of the parking lot. Officer Rendon testified that immediately after the male was arrested, he picked up a blue bandana and black baseball cap from the ground near the male.

14A plastic silver gun was later found in the kitchen of the Bilal restaurant.

Description of the First Assailant

Description of the First Assailant

15Farah testified that he called 911 just after the attempted robbery. The 911 call was entered as an exhibit at trial. Farah was the only person to speak to the dispatcher. In the 911 call Farah described the assailants as two black males, 20 to 25 years old who wore black clothes, black hats and wore bandanas. He said one of them had a silver handgun. He said they fled, one running east and one running west on Rexdale Boulevard.

16Ducaleh described the first assailant as five feet nine inches to six feet tall, with very short black hair, face covered by a handkerchief or scarf just under his eyes, wearing a black jacket or sweater and heavy shoes that hurt him when he was kicked. He believes the scarf worn on the assailant’s face was black or maybe blue with lines on it. The assailant looked Somali and spoke in English. He thinks the man was about 30 years old.

17At trial, Farah testified that the accused could not be the first assailant as the accused’s complexion was lighter than that of the first assailant. Farah conceded that for most of the time during the robbery he was face down lying on the floor near the men’s area of the restaurant with the second assailant. This was a different part of the restaurant than the place where Ducaleh and the first assailant spent most of their time. He also stated that at the time, he had “bad eyes” and wore glasses and was not wearing his glasses that day.

18Officer Rendon described the male who was arrested as a black male wearing a black T-shirt with the word “Adidas” across it, and dark blue jeans. He wore black leather shoes with rubber soles, blue jeans and a black Atlanta Braves baseball cap upon his arrest. A dark blue bandana with white design on it was found on the ground near where the accused was arrested.

19When he was arrested and taken to the station, police noted that he was six feet two inches tall and 160 lbs.

20Officers Rendon and Ahluwalia identified the accused as the person they arrested.

III. ANALYSIS OF THE LAW

III. ANALYSIS OF THE LAW

21An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of each offence beyond a reasonable doubt.¹ Something less than absolute certainty is required and something more than probable guilt is required in order to convict.² Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence.³

22In R. v. Bouvier⁴, Martin J.A. for the Court held that,

The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt.

The jury might not be satisfied beyond a reasonable doubt on either the visual identification or the licence number standing alone, but viewed together, the one in relation to the other, those pieces of evidence might satisfy them beyond a reasonable doubt that the respondent was the assailant.⁵

The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment.⁶ It is often the very certainty with which credible witnesses give their eyewitness testimony that causes triers of fact to mistake confidence with reliability.⁷ One must be particularly careful therefore in considering identification evidence.

23Some of the key factors relevant to a determination of the reliability of identification evidence where the honesty and sincerity of the witnesses is not at issue are as follows:⁸

i. Is the description general or a detailed description of distinctive features of the suspect and his or her clothing?⁹

ii. Has the witness described a distinguishing feature not shared by the accused or conversely has the witness' description of the suspect failed to include distinctive features of the accused?

iii. Was the opportunity to see the suspect a fleeting glimpse or something more substantial?¹⁰

iv. Was the witness familiar with the suspect?¹¹

v. What conditions were the observations made in?

vi. Were the observations reported in a timely manner?

vii. Were there intervening circumstances, capable of tainting the independence of the identification, between the witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court? and

viii. Is there is confirmation by others or independent evidence?

24Robbery is the act of taking or trying to take something of value by force or threat of force or by putting the victim in fear. Section 343 of the Criminal Code provides that a robbery is committed where an individual:

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c) assaults any person with intent to steal from him; or

(d) steals from any person while armed with an offensive weapon or imitation thereof.

25In the case of an assault on a person with intent to steal from him, to constitute robbery, the assault must be for the purpose of stealing from the person. There is no need to prove that a theft actually occurred.

26In the case of stealing from a person while armed with an offensive weapon the "weapon" can be an imitation firearm.

IV. ANALYSIS AND CONCLUSION

IV. ANALYSIS AND CONCLUSION

27Counsel for Abdulhakim submits that there is a reasonable doubt as to whether the first assailant was him for the following reasons:

(a) Farah testified that the accused he saw in court could not be the first assailant as the accused’s complexion was lighter than that of the first assailant.

(b) Ducaleh described both assailants as five feet nine inches to six feet tall while Farah said the first assailant was shorter than the second. The accused was measured upon his arrest and was six feet two inches tall.

(c) When the accused was arrested, he was wearing a black T-shirt with the word “Adidas” across the front. Neither Ducaleh nor Farah noted that the first assailant wore a T-shirt or that the shirt bore the word “Adidas” across the front. (Ducaleh said he believed he was wearing a dark jacket or sweater.)

(d) Officer Rendon testified that he grabbed the male, the male tried to run and they took him down. Officer Ahluwalia testified that the male stopped, they looked at him and he attempted to flee and was then detained.

(e) Officer Ahluwalia said he saw him throw the bandana under the green truck while Rendon said he picked up the bandana from the ground.

(f) Ducaleh and Officer Rendon said the first assailant was east of the parking lot between lots 306 and 312 Rexdale Boulevard when Ducaleh pointed him out to officers whereas Officer Ahluwalia placed him just inside the parking lot at the time police spotted him.

(g) Ducaleh said he waved down the police car from the sidewalk on Rexdale Boulevard whereas one of the officers stated that he was just on the side of the road at Rexdale Boulevard when he flagged down the police vehicle.

28Abdulhakim’s counsel submits that the identification evidence in this case is unreliable and insufficient to support a finding of guilt beyond a reasonable doubt.

29The Crown contends that on all significant points of evidence, the evidence of the Crown witnesses is unchallenged.

(a) Ducaleh testified that he saw two assailants run from the restaurant. He had a clear view of the first assailant and pointed at him to identify him to police.

(b) Thereafter, the police followed him with a clear unobstructed view until he was apprehended minutes later.

(c) When the male was found, his description matched the description given by Ducaleh and Farah shortly after the robbery: black male wearing dark clothing, and a black baseball cap. Moreover, the blue bandana with white lines on it as noted by Ducaleh was found by police within a few feet of the place where the male assailant was apprehended when no one else was on foot in the parking lot.

30I find that Farah’s description of the first assailant at trial should be rejected as he no longer had a clear memory of the event or the first assailant. By contrast, the description given by Farah to the 911 operator just after the event is consistent with the description of the accused who was arrested by police on August 10. In the 911 call Farah described the assailants as male blacks wearing baseball caps and bandanas. Finally, Farah acknowledged that he needed to wear glasses at the time, but was not wearing them at the time of the robbery and that for most of the time he was face down on the ground so he could not see much. Therefore, where the evidence of Farah and Ducaleh differ as to the description of the first assailant, I prefer the evidence of Ducaleh.

31Moreover, notwithstanding the frailty of identification evidence, the combined effect of the following factors satisfies me beyond a reasonable doubt that Abulhakim was the first assailant:

(a) Ducaleh in his police statement and Farah in the 911 call both described the first assailant as a young black male wearing dark clothing, and noted a distinctive black baseball cap and dark bandana. These descriptions were given shortly after the incident occurred;

(b) Ducaleh had a good opportunity to see the first assailant as the first assailant was preoccupied with him, not Farah;

(c) Ducaleh had the opportunity to view him over several minutes, while on the floor, walking over to the cash register, walking back and escaping past him;

(d) Ducaleh’s observations took place in very close contact with the first assailant in good lighting conditions;

(e) Ducaleh saw the first and second assailants run from the front door of the Bilal restaurant;

(f) It was a sunny day at midday with no one else running through the parking lot;

(g) Ducaleh’s uncontradicted evidence was that he never lost sight of the first assailant from the time he saw him run from the restaurant to the time he pointed him out to police;

(h) The police testified that they had a clear unobstructed view of the first assailant as he ran, from the time Ducaleh pointed him out to them to the time of his arrest. At the time of the chase and the arrest there was no one else in the parking lot;

(i) When Abdulhakim was arrested the officers noted that he was a young black male. He wore dark clothing. A distinctive dark blue coloured bandana with a white design and a dark baseball cap were found within a few feet of the place where he was arrested. Ducaleh noted that the dark blue bandana contained lines on it.

32The only inconsistency between the description given by Ducaleh and the male who was arrested is that Ducaleh said he thought he was wearing a black sweater or jacket and in fact he was wearing a black T-shirt. Given the distinctive bandana he was wearing, the other articles of clothing and black heavy shoes, Ducaleh was able to describe (that were entered as an exhibit at trial), the fact that he was seen running from the restaurant and viewed without interruption until the time of his arrest, I do not view this discrepancy as material.

33Moreover, I find that the defence evidence as to the precise place Ducaleh was when he stopped the police vehicle, and the precise location where the male was seen running when first spotted by police, is not material. The male was continuously running. This was a fluid event rendering it difficult to state with exact precision where he was. (Ducaleh and both officers outlined the same route taken by the male and Ducaleh and Officer Rendon placed him at almost exactly the same location whereas Officer Ahluwalia placed the male further along the path.)

34For the above reasons, I am satisfied beyond a reasonable doubt that the accused is the first assailant. It is agreed that the first assailant inflicted violence on Ducaleh while trying to steal from the safe at the Bilal restaurant. At the time, Ducaleh was a part owner of the restaurant.

35The Crown conceded that nothing was stolen from Farah and there was no evidence of any attempt to steal from Farah by the accused.

36The evidence of the only two witnesses to the robbery was that the first assailant had a silver hand gun that was later found in the restaurant. It was an imitation firearm.

37Ducaleh testified that during the robbery, the first assailant wore a bandana and a bandana of the same colour and similar was found on the ground next to the accused upon his arrest.

38For these reasons, I find Abdulhakim:

i. not guilty of robbery of Farah contrary to section 344(1)(b) of the Criminal Code;

ii. guilty of robbery of Ducaleh (within the meaning of section 343(c) of the Criminal Code) contrary to section 344(1)(b) of the Criminal Code;

iii. guilty of using an imitation firearm while committing the offence of robbery contrary to section 85(2)(a) of the Criminal Code; and

iv. guilty of having his face masked with the intent to commit an indictable offence contrary to section 351(2) of the Criminal Code.

Thorburn J.

Footnotes

1. 1R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 13.
2. 2R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
3. 3R. v. J.H., (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, [2005] O.J. No. 39 (C.A.), at para. 44.
4. 4(1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 (C.A.) at 264 & 272
5. 5; Ibid at 272; See also R. v. Gagnon (2000), 2000 16863 (ON CA), 147 C.C.C. (3d) 193, [2000] O.J. No. 3410 (C.A.), at para. 48, wherein Weiler J. for the Court held that “although a piece of evidence viewed in isolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitute corroboration.”
6. 6R. v. Miaponoose (1996), 1996 1268 (ON CA), 30 O.R. (3d) 419, 110 C.C.C. (3d) 445 (C.A.), at para. 9.
7. 7Ibid, at paras. 10-11; R. v. Goran, 2008 ONCA 195, [2008] O.J. No. 1069, at paras. 26-7.
8. 8R. v. Gonsalves (2008), 2008 17559 (ON SC), 56 C.R. (6th) 379, [2008] O.J. No. 2711 (S.C.) at para. 39, [The majority of the questions and citations that follow were presented by Hill J in a different format] .
9. 9R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5 & 8; R. v. F.A. (2004), 2004 10491 (ON CA), 183 C.C.C. (3d) 518, [2004] O.J. No. 1119 (C.A.), at para. 64; R. v. Richards (2004), 2004 39047 (ON CA), 70 O.R. (3d) 737, [2004] O.J. No. 2096 (C.A.), at para. 9
10. 10R. v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1
11. 11R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 (C.A.), at paras. 99-100