ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-R1884-01/12-R1884-02
DATE: 2014/02/17
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUSTAFA FARA MOHAMOUD and
ISMAN MOHAMED OSMAN
Dallas Mack and Matthew Humphreys, for the Crown
Diane Condo, for Mustafa Fara Mohamoud and
Leonardo Russomanno, for Isman Mohamed Osman
HEARD: January 13, 15 and February 4, 2014 at Ottawa
REASONS FOR decision
kane j.
Crown Similar Act Application
[1] The Crown seeks to rely upon similarity of conduct consisting of:
(a) discreditable charged conduct to prove the identity of the perpetrators in each charged incident.
(b) other discreditable conduct outside of the conduct forming the subject of the charges before this Court.
[2] This application is brought prior to trial in relation to discreditable conduct events involving the accused in relation to (b) above, namely similar acts independent of the subject matter of these charges and not therefore otherwise relevant.
[3] It is the intention of the Crown to bring the other portion of this application regarding (a), namely count to count similar acts, at the end of its case as evidence related to each charge is relevant and admissible.
[4] The Crown identifies the issue for which it seeks to introduce similar act evidence in the case of (a) and (b) above, namely to prove the identity of the perpetrators in each of the charged incidents.
October 1 and 5, 2011 Kemptville and Rockland
[5] As against Osman, the Crown seeks to introduce into evidence his arrest in Rockland on October 5, 2011 after committing a robbery of a convenience store, regarding which Osman pled guilty to that robbery and to a robbery that occurred on October 1, 2011 in Kemptville. The Crown seeks to introduce this October 1 and October 5, 2011 evidence to prove the identity of Osman in the charged incidents. The Crown seeks the introduction of this evidence based upon the alleged similarities between these two robberies and the charged incidents, namely the similarities in the modus operandi, the clothing worn and the items taken.
September 21, 2011 Gatineau
[6] The Crown seeks permission to introduce into evidence the events of an alleged robbery that occurred on September 21, 2011 at a Petro Canada gas station in Gatineau Québec as against Osman and Mohamoud. The Crown seeks to introduce this evidence to prove the identity of Osman and Mohamoud in the charged events of the indictment. The Crown alleges that the similarities as to the modus operandi, the clothing worn and the items taken, in the Gatineau robbery and the events charged, permit introduction of the Gatineau event as similar act evidence. The Crown relies upon the similarity in the manner in which the Gatineau robbery and the robberies to which the respondents are charged; namely the clerk was robbed at gunpoint, the assailants wore masks or balaclavas and a large amount of cash and cigarettes were stolen. The Crown submits that these similarities justify introduction of the Gatineau robbery as similar fact evidence. This Gatineau robbery on September 21, 2011, is the same date as the two alleged attempted robberies, being counts 8 and 9 in the indictment.
[7] The Crown submits that the above similar act evidence sought to be introduced is:
(a) sufficiently linked to the two accused,
(b) relevant on the issue of identification,
(c) sufficiently similar to be more probative than prejudicial,
(d) the prejudicial effect is minimal as the conduct is similar in nature and severity to the events charge. The evidence as to the uncharged conduct will involve minimal inconvenience to the court and the parties.
Charges Proceeding To Trial
[8] There are 14 counts in the indictment alleging a series of convenience store robberies by the accused spanning eight months from July 21, 2011 until March 22, 2012.
[9] Eight of the counts allege offences jointly against the two accused consisting of robbery, attempted robbery, conspiracy together to commit robbery and possession of a weapon, namely a machete knife.
[10] There are five separate counts against Mr. Osman alone, alleging robbery and one count of failing to stop his vehicle at the direction of police.
[11] One count of robbery is against Mr. Mohamoud only.
Summary of Alleged Robberies and Similar Acts
[12] I will now summarize the occurrences and in doing so, will make reference to some of the evidence which may point to one or both accused. I do so without confusing the multi-step examination to be conducted as required by the Supreme Court.
1. July 21, 2011 - Robbery by Both Accused
[13] Four men robbed a Mac’s Milk convenience store at 1 Hobin St. at 02:20 hours. The faces of all four males were covered with a mask or clothing. Police state that one of the intruders was armed with a knife. The male employee was escorted into the back office and detained there at knife point. Police allege that Mohamoud went directly behind the counter and spent his entire time in the store loading bags with cigarette packages. Time in the store was 12 minutes. Some $155 of cash and $6,400 of cigarettes were stolen.
[14] Police testified that at least three of the intruders wore towels around their head to cover their face. Mohamoud it is alleged wore beige pants and white running shoes with strips on them similar to the Adidas brand. The store clerk was taken into the back room by the guy with a knife. The clerk held his hands in the air.
[15] The store clerk testified at the PI. He testified that four or five intruders were involved in the robbery. All intruders wore a mask. He described the masks of at least some of them as made of cloth. He stated at least one or maybe two of the intruders held knives. The intruders spoke Arabic with one another. The intruders had very dark skin.
[16] He was taken to the back office by one of the intruders with a knife and told to kneel down and not move. He was told he would not be hurt. This intruder took the alarm button the clerk was wearing. This intruder was thin, wore white pants, brown shoes with white laces, and white gloves.
[17] Another of the intruders was tall and huge. The third was short.
[18] The store contained a cash drawer, a small safe and a larger safe. The intruders brought the clerk from the office to the store counter with his arms raised above his head. The intruders wanted his assistance to open the large safe. The clerk advised he lacked access to it. The intruders emptied the cash drawer and small safe of money. They also wanted bus tickets. The intruders asked for cartons of cigarettes but the clerk stated he did not have access to the carton containers. After the clerk opened the cash drawer as directed, he was then taken back to the back room in the store.
[19] The clerk stated the intruders were taking as much of the cigarette packages as they could.
(Full text continues exactly as provided through paragraph [169] and the closing lines.)
Kane J.
Released: February 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUSTAFA FARA MOHAMOUD and
ISMAN MOHAMED OSMAN
REASONS FOR DECISION
Kane J.
Released: February 17, 2014