ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140627

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMUD HASSAN and DION BENJAMIN

Anna Stanford for the Crown

Mary Cremer for Mohamud Hassan

Philip Klumak for Dion Benjamin

HEARD: June 9 to 18, 2014

MacDonnell, J.

[1] Mohamud Hassan and Dion Benjamin are charged with several offences arising from a ‘drug rip-off’ robbery in which Pierre Brochu, a small-time marihuana trafficker, was shot and wounded. The robbery occurred on October 24, 2011 in Mr. Brochu’s 17th floor apartment on Roselawn Avenue in Toronto.

[2] There is no dispute that three young males were present with Mr. Brochu at the time of the robbery. Nor is there a dispute that one of those males was Teneal Richards and that in the course of the robbery he produced a handgun and shot Mr. Brochu. The central issues in this trial are whether the Crown has proved that either Mr. Hassan or Mr. Benjamin was present, and, if so, whether they participated in the robbery and shooting.

[3] For the reasons set out below, I am not satisfied beyond a reasonable doubt that either of the two accused was with Richards at the time of the robbery. Accordingly, neither of them can be found guilty of any of the offences with which they are charged.

A. The Relevant Facts

[4] At the time he was robbed and shot, Pierre Brochu was 56 or 57 years of age. He had been on the Ontario Disability Support Program for several years as a result of a work injury that left him with chronic pain. About four years ago he obtained authorization to possess marihuana for medical purposes. Pursuant to the terms of the authorization, he was permitted to be in possession of about 900 grams at any one time.

[5] The regulations governing possession of medical marihuana require that the marihuana be purchased from Health Canada or a licensed grower. Mr. Brochu regarded the prices charged by those sources as too high, and he was obtaining his marihuana more cheaply from a friend. To finance his purchases, he was selling 30 to 50 percent of the marihuana, mostly in small amounts to people who lived in his apartment building. He testified that it was a matter of general knowledge within the building that he was doing this.

[6] Mr. Brochu testified that a couple of months before the robbery a neighbor in the building introduced him to “Dave”, who was interested in buying a gram or two of marihuana. Brochu went back to his apartment and obtained a small amount for Dave. Mr. Brochu testified that he was in Dave’s presence for about 10 to 20 minutes on this occasion, and that the actual interaction between them took about 4 or 5 minutes.

[7] Mr. Brochu said that he sold marihuana to Dave on three further occasions prior to the date of the robbery. Each time, the interaction was relatively brief. Most of the transactions occurred in Mr. Brochu’s apartment, and each was for twenty to thirty dollars’ worth of marihuana. On one occasion they had a conversation about people that Dave had met who had known Mr. Brochu years earlier in another part of the city.

[8] The fifth time that Mr. Brochu dealt with Dave was on October 24, 2011. In the afternoon he got a call from Dave inquiring about buying an ounce. Mr. Brochu told Dave that he did not have that much marihuana, but that he might be able to sell him half an ounce. A few hours later, Dave called and said that he was coming over. Around 8 or 9 pm, Dave called again and said that he was downstairs. Mr. Brochu went down to the west side door of the building to let him in.

[9] Dave was not alone. A video surveillance camera inside the building faces out through the west side door into a laneway. The images from the camera show that at 8:20:57 p.m., Dave arrived in the laneway with Teneal Richards and a shorter third male. Ninety six seconds after they arrived, Mr. Brochu appeared and opened the door. The three males entered the building at 8:22:40 and followed Mr. Brochu toward the elevators. Three minutes and thirty-nine seconds later, at 8:26:19, the surveillance video captured images of the same three males running out of the building.

[10] Mr. Brochu testified that within that three minute and thirty-nine second interval he had taken Dave and the other two men up to his apartment, intending to complete a marihuana transaction. Almost immediately after entering the apartment, Teneal Richards produced a handgun, grabbed him by the neck, and demanded that he hand over his money and his marihuana. He testified that both Dave and the third man assisted Richards in taking those things from him. Richards then cold-bloodedly shot him in the thigh and all three men fled from the apartment.

[11] Mr. Brochu was bleeding profusely from the gunshot wound to his leg. He called 911 and within minutes police and emergency personnel arrived. He did not tell the first police officer he spoke to the whole truth about what had happened. In essence, he hid the fact that he had let the men in to sell them marihuana – he claimed that three strangers had knocked on his door and that he was shot as they tried to force their way in. He repeated that version of events to an officer at the hospital later that evening. The next day, in the initial part of a K.G.B. statement at the 13 Division police station, he continued to conceal the fact that he had been engaged in marihuana trafficking. It was only after the police revealed that they had seen the images from the surveillance video showing him letting the men into the building that he admitted what had really happened.

[12] In the course of the K.G.B. statement, Mr. Brochu provided the police with descriptions of all three men. He described Dave as no more than 19 years of age, about 6’2” or 6’3”, skinny, 150 to 160 lbs., with “kinda buck teeth a little bit”. He also said that he had “a baby face”. He described the third male as ‘dark black, a skinny little guy with glasses, looking 17 or younger, the youngest of the three’.

[13] About two weeks after the robbery, Mr. Brochu re-attended at 13 Division, this time to view photo lineups. There is no suggestion that the procedure was not conducted fairly and properly. He was shown two lineups. For both he was provided with 12 large envelopes, each containing one photograph. He was told to shuffle the envelopes and then to begin opening them one at a time. He was told to examine each photograph. With respect to each, he was told that he had two options: he could either say “yes”, if he recognized the person in the photograph, or “no”, if he did not. He was told to mark his response on the back of each photograph. If the answer was “yes”, he was to tell the officer why he recognized the person, and to hold the photograph up to the video camera.

[14] A photograph of Mr. Hassan was included in the first lineup, and photographs of Richards and Benjamin were included in the second. When Mr. Brochu came to the photo of Mr. Hassan, he indicated that “no”, he did not recognize him. He made the same response with respect to the photograph of Richards. He did however indicate that a person who was not Richards (nor Hassan or Benjamin) “looks like the shooter”. Mr. Brochu also indicated that one of the photographs from each lineup could be Dave. The second of those photographs was of Mr. Benjamin. I will return to this later in these reasons.

[15] In the course of his testimony at trial, Mr. Brochu was asked to describe both Dave and the third person. He stated that Dave was about 6’1” or 6’2”, slim, 150 to 160 lbs., dark-skinned, and having a bit of an overbite. He was asked “Do you see Dave in the courtroom today?” He responded “yes”, and pointed to Mr. Benjamin, seated in the dock.

[16] He testified that the third male was perhaps 5’8” or 5’9”, with a slight build. He said that he had his hair in cornrows, that he was darker than the other two, and that he was maybe 19 or 20. He could not really recall anything about his face. He pointed to Mr. Hassan, seated beside Mr. Benjamin in the dock, as being this third person.

[17] Ms Stanford placed no reliance on Mr. Brochu’s dock identification of Mr. Hassan. Rather, she rested her case against him on the evidence of Detective Nasser. Detective Nasser was not involved in the investigation of the shooting of Mr. Brochu. He was, however, familiar with Mr. Hassan. On five occasions between late 2008 and the shooting, he had either dealt with Mr. Hassan personally or had been present when other officers had dealt with him. The fifth of those occasions was on October 18, 2011, six days before the shooting. On that date, Detective Nasser and his partner stopped three males running out of a Rexdale housing complex. One of the males was Mr. Hassan. The other two were Teneal Richards and his brother Terrell.

[18] On October 25, 2011, the day after the shooting, an image taken from the surveillance video at Mr. Brochu’s apartment building was posted on the Toronto police computer system. The posting requested assistance of other officers in identifying the males depicted in the image. Detective Nasser saw the posting on October 26, 2011 and recognized Mr. Richards. He provided that information to the officers investigating the shooting, and on November 8 he went to 13 Division to view the entire surveillance video. After watching the video, he came to the conclusion that the shorter of the three men was Mr. Hassan.

B. Discussion

(i) Has the Crown proved that Dion Benjamin was one of the males with Teneal Richards?

[19] In support of her submission that the court should be satisfied that “Dave” was Mr. Benjamin, Ms Stanford pointed to three circumstances: (i) Mr. Brochu’s recognition-based dock identification of Mr. Benjamin; (ii) the physical description of Dave that Mr. Brochu provided to the police on the day after the robbery; and (iii) the images of Dave on the surveillance video. She submitted that considered as a whole those circumstances point inexorably to the conclusion that Mr. Benjamin is Dave.

[20] A dock identification by a witness who has not previously identified the accused has virtually no value as identification evidence: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 49.

[21] I agree that a conclusion that an identification is reliable may be easier to reach where the witness is saying that the person identified is someone he has dealt with before: R. v. Turnbull et al. (1976), 63 Cr. App. R. 132, at 137; R. v. Aburto, [2008] B.C.J. No. 284, at paragraphs 21-22 (C.A.); R. v. Ryan, 2011 NLCA 53; R. v. Schinkel, 2013 MBQB 169.

[22] Justice Wood noted that in Turnbull, supra, Lord Widgery stated that “recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made”.[^2]

[23] For the purposes of the present discussion, I am prepared to accept the testimony of Mr. Brochu that Dave was someone with whom he had had four brief encounters over the preceding two months. I acknowledge that there are multiple reasons to be cautious about believing anything that Mr. Brochu says under oath. He has accumulated close to 50 criminal convictions over the past 40 years, including 17 convictions for offences of dishonesty, 8 convictions for misleading the administration of justice, and 11 convictions for failing to comply with court orders. In the 24 hours following the robbery, he gave the police four different versions of how he came to be shot, and he gave two of those versions while he was under oath. Further, his evidence in this trial with respect to what occurred at the material time was riddled with inconsistencies. Ms Stanford fairly characterized Mr. Brochu as a disastrous witness.

[24] However, no one disputes that Mr. Brochu was shot in the course of a robbery, that the robbery was a ‘drug rip off’, and that it was committed by one or more of the three males that Mr. Brochu let in by the side door of his building. The circumstances under which he let those males in, as captured in the surveillance video, support an inference that he knew at least one of them.

[25] Accordingly, I accept that Mr. Brochu had a basis upon which to recognize Dave and thus that he had a basis to say that Dion Benjamin, seated in the dock at trial, was Dave.

[26] However, there are additional circumstances to be considered in that regard, among them Mr. Brochu’s performance in the photo lineups.

[27] As I said earlier, about two weeks after the robbery, Mr. Brochu was shown two photo lineups. When he came to envelope #7 in the first lineup, he examined the enclosed photograph for some 40 seconds.

[28] Mr. Brochu put the photograph back into envelope #7 and returned it to the officer.

[29] After completing the first lineup, the same procedure was followed with respect to the second.

[30] With respect to Mr. Brochu’s selection of the person depicted in photo #7 in the first lineup, Ms Stanford noted that Mr. Brochu was not purporting to positively identify him as Dave.

[31] The subsequent statement is open to two interpretations.

[32] Mr. Klumak further submitted, however, that the doubt created by Mr. Brochu’s selection of photo #7 is compounded by his inability to say more than that the person in the second lineup “could even be Dave”.

[33] In defence of Mr. Brochu, Ms Stanford noted that there is a common sense difference between recognizing someone in flesh and blood and determining if a photograph is that person.

[34] Those submissions are not without merit. However, they only go so far in alleviating the concerns raised by Mr. Brochu’s performance in the photo lineups.

[35] In addition, Mr. Brochu himself qualified his ability to recognize Dave.

[36] As I have said, the in-court identification of Mr. Benjamin is the most important component of the Crown’s case against him.

[37] The description of Dave that Mr. Brochu gave to the police was a good description of Benjamin.

[38] Having considered the evidence as a whole, I am satisfied that the Crown has established that it is likely that Mr. Benjamin is Dave. However, in light of the concerns I have discussed I am not satisfied that the Crown has proved beyond a reasonable doubt that he is.

(ii) Has the Crown proved that Mohamud Hassan was one of the males with Teneal Richards?

[39] The evidence connecting Mr. Hassan to the robbery consists of (i) Brochu’s dock identification of him; (ii) Detective Nasser’s recognition of him in the surveillance video; and (iii) the evidence of association between Mr. Hassan and Teneal Richards six days before the robbery.

[40] Mr. Brochu did not claim to have ever seen Mr. Hassan prior to the robbery.

[41] Based on his prior dealings with Mr. Hassan, Detective Nasser is someone capable of recognizing him.

[42] The video camera was located in a hallway inside the west door of the apartment building.

[43] Notwithstanding those difficulties, Detective Nasser testified that after watching the surveillance video at 13 Division he was certain that the shorter man was Mr. Hassan.

[44] Detective Nasser acknowledged that what he perceived to be a moustache might actually just be a shadow.

[45] The fact that Mr. Hassan was found in Teneal Richard’s company six days prior to the robbery is relevant to the question of identification.

[46] Detective Nasser was a credible and trustworthy witness, but it is trite to say that in the area of identification credible and trustworthy witnesses can be mistaken.

C. Disposition

[47] For the foregoing reasons, I am not satisfied that the Crown has proved beyond a reasonable doubt that either Mr. Benjamin or Mr. Hassan were present at the time of the robbery and shooting of Mr. Brochu. Accordingly, both are found not guilty on all counts before the court.

MacDonnell, J.

Released: June 27, 2014

[^1]: at paragraph 102. Justice Wood dissented in the result but not on this point
[^2]: Turnbull, at page 137
[^3]: at paragraph 106