ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-30000307-0000

DATE: 20140219

B E T W E E N:

HER MAJESTY THE QUEEN

Phillip Tsui for the Crown

• and -

OMAR MOHAMED

Luka Rados for Omar Mohamed

HEARD: February 3 - 5, 2014.

REASONS FOR JUDGMENT

CORRICK J. (orally)

Introduction

[1] Mr. Mohamed is charged with robbing Justin Simon on May 10, 2012, while armed with an imitation firearm. He was tried by me without a jury.

[2] By way of overview, the Crown alleges that Mr. Mohamed was one of three men who robbed Mr. Simon at gun and knife point of his cell phone, jewellery and cash. It is alleged that Mr. Mohamed was the robber who held a gun to Mr. Simon’s face.

[3] The issue in this trial is the identification of Mr. Mohamed as the robber.

The Evidence

The Robbery

[4] The case against Mr. Mohamed depends on the eyewitness testimony of Mr. Simon. He testified that on May 10, 2012, at approximately 11:30 p.m., he was sitting on some landscape rocks at the corner of Birchmount and Sheppard Avenues smoking a cigarette. He was approached by a panhandler, whom he knew as Paco. Paco asked him for some change. He replied that he had none. Paco then asked him for the time. When Mr. Simon pulled his cell phone from his pocket to see the time, it was snatched out of his hand. Mr. Simon looked up and saw a man holding his cell phone and pointing a gun at his face. Two other men approached Mr. Simon. One held a box cutter; the other held a knife. They pulled him backwards. While one held the knife to his throat, the other man searched his pockets, his underwear and his socks. They took $183.00, his cell phone, his keys, his cigarettes, the ring off his finger, the watch off his wrist, and the chain from around his neck. The men then ran west on Sheppard Avenue, crossed north and went into the side door of 365 Bay Mills Blvd.

[5] It is alleged that Mr. Mohamed is the man who held the gun. Mr. Simon testified that the man who held the gun was one or two feet in front of him. Although it was night, there was artificial light from a nearby bus shelter. Mr. Simon does not wear glasses or contact lenses and has good vision. He said he could see the gunman "clear as day." He estimated that he looked at the gunman for about two minutes. The entire incident lasted fewer than five minutes. During the robbery, the gunman said to Mr. Simon, "Do you know where you are" and "Do you know who we are?" Mr. Simon did not respond. He testified that the gunman had no discernible accent.

[6] Once the robbers fled, Mr. Simon spoke to Paco, who told him that they had asked him to ask Mr. Simon for the time.

[7] Mr. Simon described the gunman as between 17 and 19 years old, 5'8" or 5'9" tall, dark complexion, hair on his chin, a scar in the middle of his forehead and a bit of an afro. He testified that he mostly recalled the scar in the middle of his forehead. The scar appeared somewhat fresh. It did not look like it had been there for a few years.

[8] Two or three days after the robbery, Mr. Simon confronted Paco about the robbery, and asked him where Mr. Simon’s belongings were. Paco returned his keys to Mr. Simon and told him that he tried to get his other belongings back, but was unable to do so. He told Mr. Simon that Mr. Mohamed was one of the robbers, and that he hung out at 365 Bay Mills Blvd., apt. #402. He also gave Mr. Simon a cell phone number.

[9] Three or four days after the robbery, at approximately 3:00 p.m., Mr. Simon was walking north on Birchmount Avenue near the scene of the robbery. He saw a man standing about 40 feet away from him. The man approached Mr. Simon at the corner of Birchmount and Sheppard. Mr. Simon recognized him as the gunman. He said, "Wagwan," an expression that means, "what's going on." He asked Mr. Simon where he was going and where he lived. He told Mr. Simon that he was out there all the time and that he would see him again. Mr. Simon believed the man was trying to intimidate him. The encounter was brief, about two minutes. Mr. Simon noticed the scar in the middle of the man's forehead. He said that the man's afro was sticking out from the ball cap he was wearing.

[10] Mr. Simon did not report either incident to the police. He testified that he grew up in a neighbourhood where calling the police was something that was not done. Therefore, he did not think about calling the police.

[11] A few months later, on July 6, 2012, Mr. Simon, his girlfriend and their children were at Agincourt Mall, when Mr. Simon saw a man he believed to be one of the other people who had robbed him. That man was talking on his cell phone. A few moments later, he was joined by another man. Mr. Simon believed these men were following him and his family throughout the mall. Mr. Mohamed was not one of the men at Agincourt Mall. After discussing it with his girlfriend, Mr. Simon called the police on July 8, 2012 to report the robbery because he feared for his family’s safety.

The Identification

[12] Officers Huk and Phillips interviewed Mr. Simon at his home on July 8, 2012. Officer Huk took a written statement from Mr. Simon at that time. As Mr. Simon spoke, Officer Huk took verbatim notes of what he said. According to Officer Huk, Mr. Simon described the man with the gun as Omar. Mr. Simon said, "He is African, I think Somalian. 5'8", medium build, 17 to 18 years old. He has a scar on his forehead and sort of an afro. Medium black complexion."

[13] Officer Phillips prepared an occurrence report based on the information Mr. Simon provided. The occurrence report included Mr. Mohamed's name and the description Mr. Simon provided. On the basis of this report, Officer Coroghly prepared a photo line-up for Mr. Simon to review. He believed that Mr. Mohamed was a suspect. He created the photo line-up using the following physical descriptors: male, brown skin, medium body type, and an age range of plus or minus five years from 17 to 19 years of age. He did not include the description of the scar in the middle of his forehead or the afro hair style as descriptors, although it is possible to do so. According to Officer Coroghly, including the scar and afro hairstyle would have limited the range of photographs available to him. He was creating three line-ups for Mr. Simon to view, one for each suspect. He did not want to limit his options because he had to find 36 photographs.

[14] Officers Klodt and Whitley showed Mr. Simon the three line-ups on July 17, 2012. They were not involved in the investigation, although they knew Mr. Mohamed was a suspect in the case. The line-up procedure was video-taped. Before viewing the line-up, the officers told Mr. Simon to keep in mind that appearances may change including age, weight, facial hair, hairstyle, hair length, skin tone or any marks such as tattoos or scars. Mr. Simon viewed the first line-up of twelve photographs. He identified Mr. Mohamed's photograph as a photograph of the gunman in the robbery. He testified that he assumed Mr. Mohamed's photograph would be in the line-up.

[15] Mr. Simon spent quite a long time viewing a photograph other than that of Mr. Mohamed during the line-up process. He can be seen in the video placing his hand over parts of the photo. He testified that the person looked familiar to him but he wanted to be sure. He was looking "really hard" to see a scar in the photograph but was unable to see one. He was trying to picture the person with an afro hairstyle. When he saw the photograph of Mr. Mohamed he recognized it immediately. He testified that the photograph had everything he was looking for – the "afro-ish" hair, the little goatee and the mark on his forehead. He recognized him as the person who robbed him with the gun.

[16] Mr. Simon identified Mr. Mohamed in court as the gunman. Other than the lawyers and court personnel, Mr. Mohamed was the only other person in the courtroom. He was the only person seated in the prisoner’s box.

Defence Evidence

[17] Mr. Mohamed testified. He denied robbing Mr. Simon. He denied confronting Mr. Simon on the street, and he denied having seen Mr. Simon at Agincourt Mall.

[18] He testified that he has had a scar on his forehead since he was three or four years old.

Analysis

[19] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[20] The first is that Mr. Mohamed is presumed to be innocent. The second is that the Crown bears the burden of proving Mr. Mohamed's guilt beyond a reasonable doubt. It is a very high standard, but does not require the Crown to prove his guilt with absolute certainty.

[21] The third is the principle set out by the Supreme Court of Canada in the decision of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Mohamed's evidence, I must acquit him. If I do not believe Mr. Mohamed's evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Mohamed's evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence I do accept that Mr. Mohamed is guilty.

[22] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

[23] I will deal first with the identification evidence in this case. Our jurisprudence is replete with cautions to trial judges about the inherent weaknesses of eyewitness identification evidence. On March 6, 2013, the Ontario Court of Appeal in the decision of R. v. Gough 2013 ONCA 137 again described eyewitness identification evidence as “notoriously unreliable” and repeated the call for triers of fact to exercise considerable caution.

[24] I must also bear in mind that there is a very weak link between the level of confidence a witness has in his identification and the accuracy of that identification: R. v. Hibbert (2002), 2002 SCC 39, 163 CCC (3d) 129. Eyewitness identification evidence is fraught with danger, in part, precisely because of the confidence of the honest identification witness in his evidence.

[25] Mr. Simon, who gave eye-witness identification evidence, was both a credible and honest witness. I have no doubt that he made his best effort to honestly recall the events of May 10, 2012 to the court, and that he believes that Mr. Mohamed is the man responsible for robbing him at gunpoint. The gunman was a stranger to Mr. Simon. Although he saw him on two occasions, both occasions were brief. The first occasion was under very stressful circumstances. Two months elapsed between the last time he saw the person he believed to be the gunman and when he viewed the line-up.

[26] I find that the line-up was properly presented to Mr. Simon. The content of the line-up, however, was problematic. Of the twelve photographs, Mr. Mohamed was the only person with an afro hairstyle and the only person with a scar on his forehead. Although Officer Coroghly testified that he did not believe that his scar was very "clear, strong or powerful," Mr. Simon obviously thought it was. He testified that he thought the scar was unique, and that it was an important thing to look for in the photo line-up. Also, Mr. Mohamed was the only person in the line-up with an afro hairstyle.

[27] Given that the line-up contained only one person with these distinctive features described by Mr. Simon, I attach little significance to Mr. Simon's identification of Mr. Mohamed in the line-up. The warning to witnesses given at the outset of the line-up process to bear in mind that hairstyles and distinctive marks, such as scars and tattoos, can change is insufficient to overcome the fact that Mr. Mohamed was the only person with an afro hairstyle and a scar on his forehead.

[28] Similarly, the in-court identification of Mr. Mohamed is of limited probative value. At paragraph 49 of R. v. Hibbert, Justice Arbour described in-court identification as having "an almost total absence of value as reliable positive identification." This is especially true in this case where Mr. Simon's previous exposure to Mr. Mohamed at the preliminary hearing and to his photograph in the photo line-up taint the reliability of his subsequent identification of him in the courtroom. I attach no weight to the in-court identification of Mr. Mohamed.

[29] Having concluded that the identification of Mr. Mohamed by Mr. Simon is to be accorded little or no weight, I turn now to consider the other evidence. There is very little. Mr. Mohamed lives in the Bay Mills area. He testified that he frequents the recreation room at 365 Bay Mills Blvd. He does not have an accent. This is insufficient confirmatory evidence to overcome the weakness of the identification evidence.

[30] In light of my conclusion on the strength of the evidence presented by the Crown, it is unnecessary for me to discuss Mr. Mohamed's evidence further.

[31] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that Mr. Mohamed robbed Mr. Simon. I therefore find him not guilty.

[32] Mr. Rados brought a Charter application to exclude the evidence that Mr. Simon identified Mr. Mohamed in a photo line-up. In view of my decision, it is not necessary to decide the Charter application.

Corrick J.

Released: February 19, 2014

COURT FILE NO.: CR-13-30000307-0000

DATE: 20140219

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
OMAR MOHAMED

REASONS FOR JUDGMENT

Corrick J.

Released: February 19, 2014