COURT FILE AND PARTIES

COURT FILE NO.: 12R-1884-01-02

DATE: 2014/03/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ISMAN MOHAMED OSMAN

Dallas Mack and Matthew Humphreys, for the Crown

Leonardo Russomanno, for the Accused

HEARD: February 28, 2014 at Ottawa

RULING ON SIMILAR ACT APPLICATION RE COUNT TO COUNT

Kane J.

[1] The Crown on the close of its case has presented the second portion of its similar act application. Specifically, the Crown seeks permission to allow the jury to consider the evidence presented in several counts alleging robbery of convenience stores in the jury’s deliberation and decision of individual charges against the accused. This application is restricted to charges before the jury.

[2] The decision in the first portion of this application is dated February 17, 2014 (“Decision 1”).

[3] The Crown seeks to rely upon similar acts to prove identity of the accused as follows:

(a) Count to count, involving count 1 (Sept 20/2011), count 3 (Sept 8/2011), count 4 (Sept 15/2011) and count 8 (Sept 28/2011), (the “group robberies”)

(b) Count to count, involving count 2 (Sept 6/2011) and count 5 (Sept 20/2011) (the “solo robberies”)

(c) To rely upon the evidence in the 6 robberies and 2 attempted robberies (counts 1 to 8 inclusive), to prove the intent of the accused in relation to the conspiracy charge in (count 9).

[4] The issue as to paragraphs 3(a) and 3(b) above is identity.

[5] The Crown submitted that a similarity analysis is not required in 3(c) above. The Crown submits that a finding by the jury that the accused committed the robberies and attempted robberies alleged in counts 1 to 8 is relevant and probative of the accused’s intent on October 25, 2011 in count 9.

[6] The defence opposes the count to count similar act application regarding counts 1, 3, 4, and 8 and submits the Crown has failed to establish the threshold of significant similarities in relation thereto. The defence submits there are important dissimilarities between those four counts which outweigh and interrupt any similarities.

[7] The defence agrees that the jury be instructed that it may consider count to count evidence in counts 2 or 5, in deciding each of them pursuant to Decision 1. The jury will be so instructed.

[8] The defence submits the use of counts 1 to 8 to prove intent to conspire does not require similar act permission and may be considered by the jury in deciding the issue of intent in the conspiracy allegation in count 9 pursuant to R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

CHANGES SINCE DECISION 1

[9] The Crown has completed its evidence. A significant portion of that evidence was not presented in the pre-trial motion resulting in Decision 1.

[10] Since Decision 1, the Crown has filed a new indictment against Mr. Osman only. The Crown has deleted the following events considered in Decision 1, namely:

(a) The Gatineau September 21, 2011 group robbery, allegedly involving both former accused.

(b) The out of indictment group robbery in Rockland on October 5, 2011, to which Mr. Osman previously pled guilty.

[11] The group robberies, counts 1, 3, 4 and 8, require fresh consideration in light of the increased evidence, a single accused and the reduction of the comparable events.

RELEVANCE AND MATERIALITY

[12] The defence admits that the Crown has proven on a criminal standard, all essential elements in each of the 4 group robberies, the 2 solo robberies and the 2 attempted robberies, except as to the issue of identity of Mr. Osman. I agree.

[13] Determination whether the accused is one of the perpetrators in each is material and relevant as the evidence in each may advance the case before this jury. The test at this level is not onerous and has been met.

PROBATIVE VALUE VERSUS PREJUDICIAL IMPACT

[14] The faces of the robbers in each of the robbery counts are hidden by masks or balaclavas which requires the Crown to prove identity largely by circumstantial evidence.

SIMILARITY INQUIRY – COUNTS 1, 3, 4, AND 8

[15] Probative value increases as the similarity between the acts increases: R. v. Perrier, 2004 SCC 56, [2004] S.C.J. No 54, para. 21 and R. v. MacCormack, 2009 ONCA 72, para. 52.

[16] Where identity is in issue, a slightly higher degree of similarity between the acts is required: R. v. Arp, 1998 769 (SCC), [1998] S.C.J. No 82.

Such higher degree of similarity in an identity case is required as the trier of fact is being asked to conclude that the accused is exactly the person who committed the offence. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. The court needs, on a balance of probability, to be sure that the same person committed the same acts, such that it can safely be said that it is not a coincidence not a case of mistaken identity: Perrier, supra, paras. 19 and 20.

This higher degree of similarity may come from a signature, or it may be the result of a number of significant similarities, taken together, whose cumulative effect demonstrates the requisite level of similarity: Arp, supra, para. 451.

Similarities in the manner in which allegedly similar acts were committed is a question of degree. Some crimes such as bank robberies may not show much diversity or distinctiveness in the sense of a trademark or signature. The accumulation of significant similarities in the manner in which the acts were committed may satisfy the threshold for admissibility as often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts: MacCormack, supra, paras. 61 and 65.

[17] As to whether the requisite degree of similarity has been established, the following considerations, and others, should be considered:

(a) proximity in time of the similar acts;

(b) extent to which the other acts are similar in detail to the charged conduct;

(d) circumstances surrounding or relating to the similar acts;

(e) any distinctive feature unifying the incidents;

(f) intervening events; and

(g) any other factor which would tend to support or rebut the underlying unity of the similar acts. Not all factors will exist or be necessary in each case: R. v. Handy, 2002 SCC 56, [2002] S.C.J. No 57, paras. 82 and 84.

[18] It is noted that the Court in Handy, supra, was not dealing with the higher significant similarity requirement in identity cases, as referred to in Arp, supra, and Perrier, supra.

[19] The similarity requirement is to be conducted without consideration of linking evidence: Perrier, supra, para. 19.

[20] Linkage evidence may have a role in consideration of similarities: MacCormack, supra, paras. 57-58 and 81. Reconciling these two positions is difficult.

SIMILARITIES AND DISSIMILARITIES

[21] The evidence establishes the following considerations:

(a) Proximity in time – 26 days;

(f) Intervening acts – none.

Count 1 – September 2, 2011

[22] At 03:35 hours, three men robbed the Petro Canada gas bar at 6061 Hazeldean Rd. Ottawa. The intruders stole some $200 cash and $8,100 of cigarettes. They were in the store eight minutes.

[23] The robbers approached the clerk outside the store and directed him inside. They all proceeded to the cash counter. The clerk opened the cash drawer as directed and was then taken to and thereafter kept in the back room by the smallest intruder.

[24] The three intruders, based on the store video, are visually different. One is very heavy and taller than the other two. One is medium build. The third has a smaller frame than the other two. The video shows the skin on the arms of the medium robber and the neck of the smaller of the three are black.

[25] Each of the perpetrators wore balaclavas. The man in the blue T-shirt’s balaclava has a white face. The faces of the other two balaclavas are partially white and partially grey.

[26] The smallest intruder carried a black hand gun and searched the clerk for an alarm button. He remained with the clerk throughout.

[27] The clerk was told to kneel and raise his arms above his head in the back room. He could feel the gun against his back but was told not to worry as they only wanted cigarettes.

[28] The heavy set intruder is dressed in black, with a black upturned hoodie. A white shirt extends slightly below the hem of the black hoodie.

[29] The man wearing the T-shirt has dark green pants which appear to have an Adidas like emblem on the thigh. He and the heavy set male do the loading of cigarettes and remain standing throughout.

[30] The cigarettes were loaded into black garbage bags. The intruder in the T-shirt at one point walks towards the back room and returns with a large clear plastic bag to load the cigarettes.

[31] The intruders spoke English to the store clerk who also heard them speaking a foreign language which was not French.

[32] The intruder alleged to be Mr. Osman, wore black gloves with a white design on the top. The slighter man appears to wear black gloves.

[33] The cigarettes stolen included a lot of the Du Maurier brand. The intruders asked the clerk where the Belmont cigarettes were.

[34] The store phone was disconnected by the intruders who broke the phone line plug in doing so. The clerk had left his cell phone on the cash counter. The intruders removed its battery but left the cell phone in the store.

[35] The intruders did not ask about a secondary money safe in the store.

Count 3 – September 8, 2011

[36] At 02:00 hours, three black men, believed to be in their mid-twenties, robbed the Mac’s Milk convenience store at 1 Tartan Drive, Ottawa. Cash and some $5,000 of cigarettes were stolen. Time in the store was 14 minutes.

[37] One intruder approached the clerk outside the store, directed him to enter the store and go to the back room. The other two intruders joined them in the back room.

[38] Each intruder wore a black balaclava mask with a face design. One was armed with a hand gun.

[39] The intruder guarding the clerk on the video, places his hand on the clerk’s shoulder and directs him to the back room with arms raised behind his head. The clerk was detained there at gunpoint but was told he would not be hurt and they were only there to take some things. The gun was described as a dark silver hand gun.

[40] The clerk described the intruders as follows:

(a) Each had black skin and was in his mid-twenties.

(b) The tallest had a thin build and wore a Halloween mask with a white ghost face on it.

(d) The third intruder was shorter than the other two, approximately 165 cm. and appeared younger than the other two. He wore Adidas like pants.

[41] On the video recording, one of the intruders was taller and had a larger build than the other two. He wore purple gloves, a black sweater and dark pants. The face portion of his mask was partially white and partially grey.

[42] From the video, the gun man wore purple gloves.

[43] The male believed to be Mr. Osman, has a smaller build. He wore a dark, long sleeve sports jacket with Adidas like stripes running down the sleeves. He wore track pants with similar strips or bars running vertically down the pants. He wore black gloves with a white design on the top thereof.

[44] The third man had a medium build, wore purple gloves, a dark grey hoodie and dark pants.

[45] The male with the gun stayed in the back room with the clerk, told him to sit, searched him, found the safety button the clerk was wearing, took it and questioned whether it had been used. It was then placed on a table beside them.

[46] Two of the intruders, including allegedly Mr. Osman, left the back room and went to the store front and loaded cigarettes.

[47] The clerk was then summoned to open the cash drawer in the store. He complied. He turned over his cell phone to the intruders. The intruders left that cell phone in the store.

[48] The intruders took the cash and loaded it in a large bag with the cigarettes. They asked the clerk where the Belmont cigarettes were.

[49] The clerk was then told to return to the back room. The guard had the clerk raise his hands behind his head and then told him to stay there for five minutes before calling anyone. After, the robbers left the store.

[50] The clerk states that the intruders spoke English but at least two of them spoke another language he did not recognize, which was not French. The clerk said one or more of them spoke English with an eastern African accent.

Count 4 – September 15, 2011

[51] At 02:55 hours, three men robbed the Ultramar gas bar at the 1985 Trenton Road, Ottawa. Time in the store was eight minutes. Some $360 in cash and $11,450 of cigarettes were stolen. The intruders also stole a few DVD movies containers as they left the store which did not appear to be a primary purpose for the robbery.

[52] The three intruders met the clerk outside the store. Each wore what appear to be purple gloves. The clerk was directed inside. She was asked for her keys but was not asked about security buttons.

[53] One intruder wore a T-shirt and held a gun. The skin of his arms was black. He wore a balaclava with a full white face on the front of it.

[54] The clerk testified the gun was black with a grey handle. At times, it was pointed at her. At other times, it was laid on the counter.

[55] The gunman directed her to the back room and reassured her several times that she would not be hurt. The other two robbers loaded the cigarettes.

[56] One intruder behind the counter was heavy set and tall. He wore a burgundy coloured shirt or sweater, a balaclava and purple gloves. The face of his balaclava was partially white and partially grey. The clerk described this robber as heavy and about 6 feet in height. She estimated his weighed as approximately 200 lbs. This heavier man was the last to leave the counter area. The audio records one of the intruders verbally urging that they needed to leave and says something to the effect of “let’s go big guy”.

[57] The other man behind the counter wore a black sweater or top, and a black balaclava, the face of which was also divided between white and grey. The colour of his wrist skin appears to be black. The clerk described him as slim and about 5-9 to 5-11 in height. The clerk estimated the three were in their mid-twenties.

[58] The gunman directed the clerk to the cash drawer. She opened it and put the money in a bag and gave it to the gunman. The gunman directed her to remove the battery from her cell phone but reassured her it would not be stolen. She was directed to disconnect the store phone. She complied with both requests. They asked her if there was a second cash drawer. She took them to it and they took the money.

[59] The clerk testified that the intruders spoke English but at times two of them spoke a language she could not understand, which was not French. The audio records them speaking English frequently to one another.

[60] The store clerk was asked where the popular cigarettes were. The clerk in her testimony cited Du Maurier and Belmont as popular brands but stated no specific brands were named by the intruders.

Count 8 – September 28 - 2011

[61] At 03:45 hours, four men robbed the Mac’s Milk store at 5511 Manotick Main St. in Manotick. One of them was armed with a gun. The intruders remained in the store some 16 minutes and stole $100 cash and $4,800 of cigarettes.

[62] The store clerk was working in a back room when three masked men entered that room, pushed him and told him to stay there. They were wearing long jackets. The clerk believed there were another two or three intruders inside the store premises. That does not appear to be the case based on the video recording which shows four men in total. The intruder guarding the clerk tied the clerk’s hands with a telephone charger cable.

[63] The intruders each wore a mask, not balaclavas. The face masks were dark and had a coloured design or skull face on the front.

[64] One of the intruders is medium build and weight. His skin is black. He wore a burgundy coloured tank top, had bare arms. His mask has a black veil cloth around the back of his head. He wore black gloves with a white design on the top side of them.

[65] One of the intruders is noticeably much heavier in weight. He was dressed in black. He wore a shirt below his black top. A small portion of that shirt extends below the lower hem line of the black top after he begins loading cigarettes. His mask has no veil. He is a black male with short black hair. He wore red running shoes. He spent the entire time behind the counter, unloading shelves of cigarettes and putting them in bags.

[66] The third man was considerably smaller, had a lighter frame and was dressed in black clothing. He is behind and beside the front counter throughout. He waited and followed the lead of the heavy set robber who begins packing cigarette immediately.

[67] This heavier male wore black gloves with a white design on top. At one point he takes off both gloves while he loads cigarettes. A few minutes later, he puts his right hand glove back on but not the left glove. Police later found what appears to be a similar glove in the store. The robber’s left hand shows black skin.

[68] The man in the tank top later assists the two already unloading and packing cigarettes and then opens the cash drawer and takes the money in it. He seems to be directing the other two robbers behind the counter.

[69] The intruder who stayed with the clerk in the back room had a black gun but told the clerk it was not real. He told the clerk to remain seated in a chair and assured the clerk he would not be hurt. This guard told the clerk not to look at the intruder’s masked face. The clerk verbally gave instructions how to open the cash drawer but never left the back room during the robbery. Upon being asked, the clerk gave the intruders some garbage bags from the back room.

[70] No one spoke to the clerk about any particular brand of cigarettes. He was not asked whether there was a cash safe in addition to the cash drawer.

[71] As directed, the clerk gave the guard his cell phone after it rang during the robbery. The clerk found his cell phone in the store after the robbery. After the intruders departed, the clerk used the store phone to call police. The store phone had been unplugged by the intruders so the clerk plugged it in to call the police.

[72] Eventually, the two lighter weight men start moving the loaded bags away leaving the heavy set man alone behind the counter. The large man continues alone to unload and pack cigarettes. He eventually follows the first two who are no longer on camera. The last person to leave a few seconds later comes from the back room. He is tall and is dressed in black. He leaves the store.

[73] The clerk could not see the face of the intruders due to the masks. He stated they spoke English. He was unsure whether the intruders were white or black.

[74] On consent, the transcript of the store clerk’s evidence at the preliminary inquiry was read into evidence as he was unavailable to testify. Based on the transcript, the clerk’s knowledge of English is adequate but limited. His recollection at times was unclear.

ANALYSIS

[75] There are some differences between these four events however there is a noticeable repetitive similarity between them.

[76] One of the police witnesses testified that fear is commonly used with people like these store clerks to exert control and avoid the risk of interference from the clerk. In each of these four accounts, reassurance is given the clerk that they will be unharmed. It is an important and repeated occurrence and apparently not common during robberies.

[77] Particular or popular brands of cigarettes are commented upon in the first three events.

[78] The first three robberies involved three men. There were four in the last robbery.

[79] The heavy set taller robber is distinctively different in size from the others and present in at least three and possibly all four robberies. His job is always the same as he remains behind the counter packaging cigarettes. His size and repetitive presence are an identifiable and unifying factor between these robberies.

[80] In three robberies, one of the intruders, unlike the other robbers, wears either a T-shirt or a tank top shirt with bare arms. That person seems to be a directing mind in several of the robberies.

[81] All are convenience stores. Cigarettes and money are the objectives in each.

[82] Plastic bags are brought into or obtained in the store to carry out the cigarette packages. Two of the clerks testified that the store did not have black garbage bags which must therefore have been brought in by the intruders.

[83] A gun is used in each case. Whether the statement to the clerk on the one occasion that the gun was fake is true or not, is unknown. That statement could have been part of reassuring that clerk or perhaps why that clerk had his hands tied.

[84] The approach is always the same in that the clerk immediately or soon after is taken to the back room and guarded by one intruder with a gun. The female clerk spent considerable time in the store area with the intruders. She was needed to open the cash drawers.

[85] The division of labour always involves one intruder being assigned to the clerk while the other intruders immediately begin packing cigarettes.

[86] The four robberies each occurred between the hours of 02:15 and 03:45 while the clerk is the only one in attendance. They occur within greater Ottawa during a 26 day period.

[87] Balaclavas are used in three of the robberies, while masks are worn in count 4.

[88] In the March 22, 2012 robbery considered in Decision 1, two intruders were unmasked while the third intruder used a shirt to conceal his head and face. The clerk on March 22, 2012, remained at all times with the intruders at the cash and no weapon was used. One unmasked intruder in that case did no work, was perhaps intoxicated and wandered aimlessly about.

[89] The March 22, 2012 robbery is not a comparable on this motion. It does show however the level of variation that occurs in convenience store robberies. Its variations were important to the conclusion involving gang robberies in Decision 1.

[90] Safety measures such as taking cell phones, removing the batteries and then leaving and not stealing the clerk’s cell phone and disconnecting the store phone are repeated safety measures taken.

[91] In summary:

(a) the 4 group robberies of convenience stores during 26 days;

(b) the approach;

(d) the armed guarding of and relocating the store attendant in the back room;

(e) the participation of one very heavy male who always does the same job;

(f) the presence of one medium and one smaller male with the heavy robber;

(g) the common use of a language other than English or French;

(h) the fact all or most had black skin;

(i) the time of day;

(j) cigarettes being the principle objective;

(k) the bare arms of one intruder in three of these four counts;

when combined, are strong indicators that this is the same core group of robbers who performed the robberies on September 8, 15, 20 and 28, 2011, counts 1, 3, 4, and 8.

[92] The defence relies upon the following differences;

(a) Different languages spoken during the robberies.

(b) The PET alarms taken in two of the robberies, did not occur in the September 15 and 28 robberies.

(c) The intruders on September 8 specified brand of cigarettes, namely Belmont Milds and DuMaurier. In none of the other robberies is such a request made. The “popular” brands of cigarettes requested on September 15 merely add another distinguishing feature.

(d) The September 28th robbery discloses the only instance in which the store clerk was tied up.

(e) Mr. Abu Karea testified that during the September 8th robbery the assailants were using garbage bags that did not come from the store. In the other group robberies, the assailants exclusively used the bags from the store.

(f) The assailants used differently styled gloves. Decision 1 states: “if this is the same group, why are there so many variations as to this element which is another safety measure for the robbers?”

[93] The defence is correct that there are differences but are these sufficient to counter the strong similarities in the four events? I don’t think they are.

[94] As stated, the robberies with the most serious differences from these four events, as referred to in Decision 1, are not now relied upon by the Crown.

[95] One of the problems in the Crown’s prior similar act application was its inclusion of a robbery where the thieves spoke Arabic, not reportedly spoken in any of the other group robberies. That charge is not now before the court.

[96] As to the language distinction argument, the audio recording from the store in count 4 on September 15, 2011 is informative. There were three intruders in this robbery. At least two of them were black men plus the very heavy set male. Ms. Dickson testified that she had no specific knowledge but she believed that Mr. Osman and Mr. Mohamoud were of Somalian origin and Mr. Mohamoud weighed in her opinion, 270 lbs. The audio recording on September 15 has a lot of talking by and raised voices among the three robbers. The vast majority of that is in English. Some of that is akin to language seen in text messaging, as is very short sentences. Some of that same English, sounds like a mix of hip hop jargon which one might associate with black youth talking to one another, including the “accent” associated therewith.

[97] On the audio recording, there appears to be the odd remark by the intruders in a language other than English or French, as stated by Ms. Genier. If intruders speak English and another language from another country, it is not unusual that they might switch back and forth between the two languages. It is not distinctive that the same intruders might conduct one robbery exclusively in English.

[98] The difference in language and the hint of an accent in this case are not reliable indicator of distinctiveness based on the above observations.

[99] The safety measures taken in these robberies are similar but not identical. Some of those differences are understandable. Not every store clerk, Ms. Genier for example, was equipped with a PET alarm. The guard of the clerk in count 4 appears to be an addition to the core team. He only takes the clerk’s cell phone after it rings. In the other three robberies, cell and store phones are disconnected to prevent alarm calls. Balaclavas or masks, being armed and controlling and moving the clerk to an interior space are similar safety precautions which occur in each event.

[100] Ms. Gervais volunteered the two brands relied upon by defence as examples of popular brands. She stated in cross-examination that no specific brand was named. She stated that the intruders asked her where the “popular brands” were located in the shelves. There may have been a wish to take these “popular” brands. It appears clear from the videos and the time duration unloading shelves however that the robbers did not in any of these events restrict themselves to Du Maurier and Belmont. None of the clerks testified to that effect.

[101] Defence is correct that the only clerk tied was on March 28. The guard that morning was an addition to the core group. This clerk was unavailable to testify so his comportment and whether that was a factor could not be questioned upon, if that was the case. On that occasion, we continue to have a very large male unloading and packing and the medium built male on the tank top/muscle shirt doing the same job.

[102] Black garbage bags were used and appeared to be brought in by the intruders as they were not available from the store in at least two robberies.

[103] There are two types of gloves used as stated. The bare arm male preferred black gloves with a white design on them, except in one case. The other intruders alternate between similar black gloves and the purple gloves. It is a variation, but between two alternatives.

[104] The above differences are not distinctive or numerous enough to interrupt the important and numerous similarities of the participants and methodology in repeated robberies in a short period.

[105] The Crown has established that there are numerous similarities in each of the four robberies. Not at a level of signature, but significant and numerous enough to meet this threshold.

[106] This conclusion is strengthened if this court is permitted to consider linkage evidence. The above conclusion is independent however of linkage evidence.

LINKAGE

[107] The Crown’s case becomes stronger at this level.

[108] There is evidence linking the accused to each of these robberies. That evidence includes:

(1) A number of the video recordings from the convenience stores show several of the perpetrators wearing purple or pink coloured gloves during the robbery. Such gloves are worn during the robberies in counts 3 and 4 which occurred on September 8 and 15, 2011.

(2) Mr. Osman met Donna Dickson through her brother, Mr. Waldron. He told Ms. Dickson his name was Stan, not Isman. She thinks Mr. Osman looks Somalian, but she has no specific knowledge whether he is. Mr. Osman said he needed to rent a vehicle to drive to Toronto. At his request Ms. Dickson agreed to rent it for him. Ms. Dickson’s brother drove her, Mr. Osman and another black male to the car rental location to rent the vehicle for Mr. Osman. The third man was Mr. Mohamoud, who Ms. Dickson described as being in his mid-twenties, about 6 feet tall and weighed, she estimated 270 lbs. She believes this large male is from Somalia but cannot say for sure. At the car rental agency, Mr. Osman stated he had forgotten his driver’s license. Ms. Dickson agreed to rent the vehicle in her name and to use her credit card for the rental cost. Mr. Osman thereupon gave her about $350 cash for the rental fee. A SUV vehicle was rented for the period September 14 to 19, 2011 for Mr. Osman.

(3) Towards the end of this rental period, Ms. Dickson contacted Mr. Osman several times. She needed more money if he intended to extend the rental period. Mr. Osman picked Ms. Dickson up from work in the rental vehicle on September 19, 2011 to return the rental vehicle. Ms. Dickson was

R. v. Osman, 2014 ONSC 1789

Case Summary