ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-567
DATE: 2014/12/23
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
Mohamed Dib
Accused
- and -
Mohamed Hersi
Accused
Julie Bourgeois, Counsel for the Crown
Natasha J. Calvinho, Counsel for the Accused, Mohamed Dib
Diane Condo, Counsel for the Accused, Mohamed Hersi
HEARD: September 29, 30, 2014, October 1, October 3, October 6, October 7, 2014
REASONS FOR JUDGMENT
CHARBONNEAU, M. Z.
[1] Mohamed Hersi and Mohamed Dib are jointly charged in an indictment containing twelve counts. All the counts relate to one incident of home invasion that occurred at the residence of Ricky Duval and his common law spouse Amanda Ross on the 19th day of July 2012.
[2] The uncontroverted evidence reveals that at approximately 1:00 a.m. there was a knock at the victims’ front door. Mr. Duval answered and opened the interior front door. The individual at the door appeared to be a pizza delivery man. While Mr. Duval was telling him he had not ordered a pizza, the individual gained entrance by forcing opened the exterior aluminum door. He produced a handgun and forced Mr. Duval down on the floor telling him he would shoot him. A second man entered and attempted to put duct tape over the mouth of Mrs. Ross.
[3] While the first individual was hitting Mr. Duval on the side and back of the head and asking him where the safe was, Mrs. Ross managed to push away and prevent the second individual from putting duct tape over her mouth. She ran to the front window where she proceeded to yell for help.
[4] Mr. Duval managed to get up and run outside through the open front door. He ran into the street and tried to stop a vehicle travelling northbound. He saw the two individuals standing on his front porch. They then got into a car parked in the driveway on the north side of his residence. That car backed up and then proceeded southbound. Mr. Duval observed a third man in the car.
[5] Meanwhile, Mrs. Ross had proceeded to call 911. The call was received by the 911 dispatcher at 1:06 a.m. Mrs. Ross testified she looked at her clock when she first heard the knock at the door and it indicated 1:00 a.m. On that basis, from the time the assailants entered the house to the time they left the house, approximately five (5) minutes would have elapsed. This is assuming Mrs. Ross’s clock was accurately set.
[6] There was in fact a safe hidden in the basement of the residence. It belonged to Mr. Duval’s father. Mr. Duval senior had moved the safe to his son’s house just a few months before. He had done so because he had himself been the subject of a robbery not long before that. Mr. Duval senior has a record for drug trafficking.
[7] The complainants provided a description of the two individuals and of the vehicle to the officers who first responded to the 911 call. They subsequently gave a description of the individuals on two occasions to the detective investigating the crime; one 3 to 4 hours after the home invasion and one on October 24, 2012.
[8] At the scene the police recovered the pizza box containing a pizza and the brown paper bag containing two cans of soft drinks that had been carried into the residence by the first individual and a piece of duct tape handled by the second individual. All these articles were processed for possible fingerprints.
[9] In October 2012, confirmation was received by the investigator that many prints belonging to Mr. Hersi were found on both the duct tape and both sides of the pizza box. Prints of four (4) different fingers belonging to Mr. Dib were found on the bottom of the pizza box namely the right ring finger, the left little finger , the left ring finger and the left middle finger. No prints belonging to Mr. Dib were identified on the top of the pizza box.
[10] Mr. Dib and Mr. Hersi were arrested on March 14, 2013 and they were charged with the twelve counts listed in the indictment filed with the Court:
(1) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did break and enter a certain place, to wit: a residence, situated at 119 High Street, Vankleek Hill Ontario committing the indictable offence of robbery, contrary to section 348 (1) (b) of the Criminal Code of Canada.
(2) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did use a firearm to wit: a handgun while committing the indictable offence of break and enter, contrary to section 85 (1) (a) of the Criminal Code of Canada.
(3) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did without lawful excuse, did (sic) in committing an assault upon Ricky Duval use a weapon to wit: a handgun, contrary to section 267 (a) of the Criminal Code of Canada.
(4) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did use a firearm to wit: a handgun while committing the indictable offence of assault, contrary to section 85 (1) (a) of the Criminal Code of Canada.
(5) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did without lawful excuse, point a firearm to wit: a handgun at Ricky Duval, contrary to section 87 of the Criminal Code of Canada.
(6) on or about the 19th day of July at the Township of Champlain, in the said Region, did without lawful excuse, did (sic) use a firearm to wit: a handgun at Ricky Duval, while committing the indictable offence of pointing a firearm at Ricky Duval, contrary to section 85 (1) (a) of the Criminal Code of Canada.
(7) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did assault Ricky Duval with intent to steal from him, contrary to section 344 (1) (b) of the Criminal Code of Canada.
(8) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did without lawful excuse or authority confine Amanda Ross, contrary to section 279(2) of the Criminal Code of Canada.
(9) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did use a firearm to wit: a handgun while committing the indictable offence of forcible confinement, contrary to section 85 (1) (a) of the Criminal Code of Canada.
(10) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did assault Amanda Ross with intent to steal from her, contrary to section 344 (1) (b) of the Criminal Code of Canada.
(11) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did use a restricted firearm to wit: a handgun, with the intent of robbing Ricky Duval of a safe, contrary to section 344 (1) (a) of the Criminal Code of Canada.
(12) on or about the 19th day of July 2012 at the Township of Champlain, in the said Region, did use a restricted firearm to wit: a handgun, with the intent of robbing Amanda Ross of a safe, contrary to section 344 (1) (a) of the Criminal Code of Canada.
[11] The parties agree there are only three issues in this matter. One of these issues only concerns Mr. Dib, namely: has the Crown proved beyond a reasonable doubt that Mr. Dib was the individual who came in carrying the pizza box and then threatening Mr. Duval with a handgun.
[12] The identity of Mr. Hersi is not in issue. Although he pleaded not guilty to all counts, his counsel told the court at the outset of the trial that he would not argue the issue of his identity as the individual who came in the house carrying the duct tape.
[13] The other issues are:
(a) whether the Crown has proved beyond a reasonable doubt that the handgun carried by the first individual was a real firearm in accordance with the definition in section 2 of the Criminal Code as alleged in counts 2, 4, 5, 6, 9, 11 and 12.
(b) whether count 8 charging unlawful confinement of Amanda Ross should be stayed by virtue of the Kienapple Principle.
Applicable Principles
1. Identity and the fingerprints evidence
[14] The presence of the fingerprints of Mr. Dib on the pizza box is only proof that he touched the box at a certain point in time. It does not constitute proof that he touched the box while committing the robbery. As the expert for the Crown testified it is impossible to determine when the prints were left on the box.
[15] In order to find that Mr. Dib was the individual who entered the complainants’ house with the pizza box there must be other evidence capable of establishing that the accused touched the pizza box at the relevant time: In R.v. Mars, (2006), CCC (3d) 376 at para 19 and 20, Justice Doherty delivering the judgment of the Court of Appeal sets the applicable test as follows:
“19. The probative value of fingerprint evidence depends on the totality of the
evidence. Fingerprint evidence will almost always afford cogent evidence
that the person whose fingerprint is left on the object touched that object.
However, the ability of the fingerprint evidence to connect an accused to the
crime charged will depend on whether there is other evidence capable of establishing
that the accused touched the object at the relevant time and place so as to connect the accused to the crime.
- In this case, the fingerprint evidence clearly established the appellant had
touched the pizza box at some point in time. However, the probative value
of the fingerprint evidence on the charges depended upon whether the entirety
of the evidence reasonably permitted the inference that the appellant touched
the pizza box in connection with the robbery and not at some other time and place.
The fingerprint evidence standing alone did not permit any inference as to
when the appellant’s fingerprint was placed on the pizza box. The reasonableness
of the verdicts, therefore, turns on whether the inference that the appellant touched
the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.”
2. Whether the handgun was a firearm
[16] The Criminal Code defines a firearm as follows:
“A barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death.”
[17] It is well established that the Crown has the burden of proving that the handgun was a firearm as defined: R.v. Covin [1983] SCR 725.
[18] In a case such as the present one where the object alleged to be a firearm is not recovered, the Crown may succeed to prove that the object is a firearm by circumstantial evidence if that evidence convinces the trier of fact beyond a reasonable doubt that it was a real firearm.
3. Count 8, unlawful confinement and the Kienapple Principle
[19] The Kienapple principle dictates that where the same transaction results in two convictions for offences with substantially the same elements, the accused should only be convicted of the most serious offence. There must be both a factual and a legal nexus between the two offences for the Kienapple principle to apply.
[20] The same issue was examined by the Court of Appeal in R.v. Rocheleau, 2013 ONCA 679 at paras 27 and 28. Tulloch JA first refers to the Supreme Court of Canada decision in R.v. Pritchard 2008 SCC 59, [2008] 3 SCR 195 and states:
“Turning first to the convictions for forcible confinement, I do not believe that
these convictions should be stayed pursuant to Kienapple. It is true that there is a
factual nexus between the robbery and forcible confinements occurred at the same
time and place. They were motivated by a single, common objective. No
significant intervening events severed the factual nexus between these
convictions. In short, the offences arose out of the same transaction.I am not satisfied, however, that there is a sufficient legal nexus between
the robberies and unlawful confinement convictions. The offences of robbery
and unlawful confinement protect different societal interests. The offence of
confinement is intended to protect individual autonomy and bodily integrity.
As described by the Supreme Court of Canada in R.v. Pritchard, 2008, SCC 59,
[2008] 3 SCR 195, at para. 24, unlawful confinement involves the following:
The authorities establish that if for any significant period of
time (the victim) was coercively restrained or directed contrary
to her wishes, so that she could not move about according to her own
inclination and desire, there was an unlawful confinement with s. 279(2)…
In discussing robbery as it relates to confinement, the court said, at para. 27:
Although every robbery involves an element of violence
or threatened violence, the level of violence does not always
occasion confinement of the significant duration required to satisfy
s. 279(2)… Not all robberies involve the domination of the victim.
[21] Justice Tulloch then indicates, at para. 29, why in R.v. Rocheleau the Kienapple principle did not apply:
“On the facts as admitted in this case, there was domination and a coercive restraint of the victims of sufficient length to attract liability for confinement discrete from the liability for robbery. Nor, in my view, could the additional impact on the individual’s freedom of movement and bodily integrity be seen as simply incidental to the robbery. The different societal interests protected by the two crimes are sufficient to negate any legal nexus between the robberies and unlawful confinements. Accordingly, I would not set aside the appellant’s unlawful confinement convictions pursuant to Kienapple.”
The Position of the Crown
a) Identity
[22] Crown counsel points to the following evidence which she claims is cumulatively sufficient to allow the court to reasonably infer that the prints of Mr. Dib were left on the box at the time of the robbery:
i) The location of the box on the floor close to the area where the culprit entered indicates the box was dropped and not thrown. This would be consistent with the limited smugging where prints overlap in the general area where Mr. Dib’s fingerprints were found.
ii) The location of Mr. Dib’s four (4) prints on the bottom of the box are consistent with one of the ways the intruder would have carried in the box while holding the gun with his right hand in a hidden fashion. The fact that there is no thumb print on the top of the box where one would expect at least one of the accused’s thumb to be is not fatal since the evidence of the expert is that a thumb print would not necessarily have been left on the box.
iii) The physical descriptions of the two assailants given by the victims, particularly the ones given by Mrs. Ross, are consistent with the known physical characteristics of the two accused namely: age, height, relative height between the two, skin color, body built, eyes of Mr. Dib and the description of the role performed by each of the assailants while in the house.
iv) The fact that the prints of only Mr. Hersi were found on the duct tape while the prints of both accused were found on the box.
b) Firearm
[23] Mrs. Bourgeois submits that the very specific description of the handgun given by the victims coupled with their own experience with handguns is sufficient to prove beyond a reasonable doubt that the handgun was a firearm. Moreover, there is other evidence which makes this conclusion reasonable namely, that Mr. Duval testified the metal barrel felt very real on his head, that he did not see a red or orange tip on the handgun and that the individual handled the handgun in a threatening way and said he would shoot him in the head.
c) Kienapple – Count 8
[24] The Crown submits there is no legal nexus between the count of robbery and count number 8 alleging the unlawful confinement of Amanda Ross. The Crown relies on the decision of the Court of Appeal in R.v. Rocheleau (supra).
[25] Mrs. Bourgeois argues that there was an attempt to unlawfully confine Mrs. Ross and that such confinement went beyond being simply incidental to the robbery. Duct taping her mouth would have constituted a clear domination of Mrs. Ross.
The Position of the Defence
a) Identity
[26] Mrs. Calvinho submits that the various descriptions of the suspect carrying the pizza box given by the victim are unreliable and totally insufficient to constitute the basis on which to conclude that Mr. Dib handled the pizza box in connection with the robbery.
[27] She submits that Mr. Duval admitted to the first responders that he had very little if anything to contribute to the description of the individuals in question. Counsel submits it is clear from the evidence that with time he progressively provides more and more details which he obviously adopts from the description given by Mrs. Ross in her descriptions to which he is privy. Counsel submits that Mr. Duval is not only an unreliable witness but he is a witness who obviously chose to lie in relation to the presence of the safe and his father’s involvement in drug trafficking.
[28] In relation to the descriptions given by Mrs. Ross, defence counsel submits that her description has widely varied from time to time and in some cases clearly does not fit with the physical characteristics of Mr. Dib. As such some aspects of her descriptions exclude Mr. Dib. At best in any event, her descriptions are only generic descriptions of the two individuals. As such her evidence is insufficient to contribute an acceptable basis to conclude that the only reasonable inference is that Mr. Dib’s fingerprints were left on the box at the time of the robbery.
[29] Mrs. Calvinho points to the evidence of Mr. Dib’s physical characteristics found on the CPIC chart and the arrest chart. At the time of arrest his face is much fuller than the description given by Mrs. Ross. Some of the characteristics given in the 2nd video interview and at the preliminary inquiry to the effect that the individual was 5’7” and 5’8”, not very big, around 140 lbs to 160 lbs, smaller in built than the other individual, mulato, considerably shorter than #2 and with a considerably smaller frame are clearly different and should exclude Mr. Dib as the pizza delivery man.
[30] Defence counsel also points to the following in support of her position.
i) Although the suspect forced opened the outside screen door none of Mr. Dib’s prints were found.
ii) Mr. Hersi’s prints were found all over the pizza box while he did not touch it during the robbery. If Mr. Dib is the other robber it is not logical that Mr. Hersi would have more prints on the box than him.
iii) Mr. Duval describes the suspect’s right hand as the one closest to the box while three of the prints found on the box are from his left hand. He also describes a hand over hand position with the gun touching the bottom of the box. The location of the prints can only lead to a very awkward and improbable holding of the box when entering the house.
iv) The decision of the investigator not to conduct a photo lineup in October when the prints of the two accused were identified is a critical absence of evidence which could have excluded Mr. Dib.
v) The expert’s evidence is that at least one other unidentified person and maybe more touched the box.
b) The firearm
[31] Mrs. Condo submits that the evidence of the two victims is insufficient to prove beyond a reasonable doubt that the handgun was a firearm as defined in the Code. The victim had only a brief look at the handgun. Mrs. Ross admitted she was not positive whether it was a real gun. The fact that Mr. Duval was convinced it was a real firearm because he felt the metal canon when pressed on his head is not conclusive since a false handgun can be made of metal. The defence points to the evidence of Constable Doucet that an imitation firearm can look exactly like a real firearm.
c) Kienapple
[32] The defence submits that R.v. Rocheleau can be distinguished on its facts. It is clear in Rocheleau that two employees were tied and brought to separate washrooms and duct taped to the stalls while the robbers went along their unlawful business. It is submitted there is no lengthy domination of the victims as was the case in Rocheleau.
Analysis
Identity
[33] I am convinced beyond a reasonable doubt that Mr. Dib is the individual who came in the house carrying the pizza box and the handgun. I come to this conclusion for the following reasons.
[34] Although in her very able submissions, Mrs. Calvinho correctly pointed to some discrepancies and variations in the descriptions given by the victims, I find that there are very telling consistencies which I find compelling. The variations and discrepancies clearly arise as time goes by and memory is affected. However, the initial descriptions given at a time when the memory of the victims was fresh are compelling in many respects. As I will explain later, I come to my conclusion on more than the descriptions. However, the initial descriptions go a long way on pointing the finger at Mr. Dib as the pizza delivery man.
[35] All of the following elements of the descriptions must be taken cumulatively. Alone they would fall short of the mark.
[36] First, the skin color of the assailants. Mrs. Ross describes the man with the duct tape as black. She describes the pizza man as an Italian male to the first responders and as a white male with olive skin a few hours later. Mr. Dib is of Lebanese origin and Mrs. Ross’ description in that regard is pretty accurate. She could have said a black male and a white male as Mr. Duval said to the first responders. Her description of Mr. Dib’s skin is not generic as Mr. Duval’s is but much more specific. The description happens to fit Mr. Dib’s skin color both on the photograph filed and as he appeared to me in the accused box.
[37] Secondly, Mrs. Ross’ description of the pizza man as having “racoon eyes” to the first responders and “really dark raccoon eyes” is also more than a generic description. The photo of Mr. Dib at the time of his arrest and as he appeared to me in court confirms that his eyes could be so described. Therefore, again a rather specific detail which fits.
[38] Thirdly, although Mrs. Ross describes the height of the pizza man as 5’8” in her interview with the investigator several hours after the robbery, she had indicated to the first responders a few minutes after the robbery that the pizza man was 5’10” to 5’11”. It must be remembered that Mrs. Ross only saw the man while sitting on the couch. On the other hand, Mr. Duval’s first indication of the height of the first suspect a few hours after the robbery was that “he was about 6 feet tall and shorter than the black guy”. This is of some significance because Mr. Duval first confronted the first suspect when he stood in front of him at the door, a situation where he would have a very good opportunity to view the height of the intruder. Mr. Duval is only 5’ tall and he always maintained that the intruder was at least 1 foot taller than he is.
[39] Although some aspects of Mrs. Ross’ descriptions from time to time can be argued to exclude Mr. Dib as the pizza delivery man, I am satisfied that a full review of the description in context does not take away the specificity of the elements mentioned. I have already explained my reasoning in relation to the height discrepancy. The same applies to the variation in skin color where Mrs. Ross talks about the intruder as “Mulato” or “Tan”. I find this is not an inconsistency. Rather she has always maintained he was not white but not black. Her description “olive” is quite accurate and was given when it was fresh in her mind.
[40] I agree with defence counsel that the Crown’s theory as to how the box and the gun were held when the box was carried into the house in order to explain the location of the fingerprints on the box is not helpful. However, the same can be said of the theory of both sides in relation to the location of the prints on the box. I find all of this to be mere speculation. The evidence of the expert is that there was a lot of what he calls “fingerprint activity” but I do not find any of the unidentified activity provides evidence that includes or excludes the accused as the culprit.
[41] Similarly, I do not find Mr. Duval’s testimony about how the intruder was holding the pizza box helpful. I find his memory on this aspect as in many other aspects poor. I cannot put any weight on his evidence in this respect.
[42] The other piece of evidence which I find compelling in establishing the presence of Mr. Dib as the first suspect is the fact that both his prints and Mr. Hersi’s prints were found on the pizza box.
[43] The evidence clearly establishes the following facts:
- Only the first intruder touched the pizza box during the robbery.
- Only Mr. Hersi handled the particular piece of duct tape that was used to unsuccessfully attempt to confine Mrs. Ross.
- The pizza box contained a complete pizza. It appears from the photographs introduced into evidence to be fresh in the sense of being hours old and not days old. The box itself is in good shape and appears relatively new.
4 ) This home invasion was planned and specifically targeted the complainants’ house and Mr. Duval senior’s safe. Part of the plan involved getting a pizza and drinks as a decoy.
[44] I conclude that Mr. Dib and Mr. Hersi left some of their prints on the box while together not long before the robbery. It is highly unlikely that the pizza would have been bought for the purpose of the robbery, then they would have parted company and an individual other than Mr. Dib, having the physical characteristics outlined above, would have shortly thereafter accompanied Mr. Hersi to commit the robbery.
[45] The cumulative effect of the description and the evidence of the fingerprints of both accused on the box in the context of this targeted robbery convinces me beyond a reasonable doubt that Mr. Dib was the intruder who carried the box into the victim’s house.
Firearm
[46] The Crown has failed to convince me beyond a reasonable doubt that the handgun was a firearm as defined by the Criminal Code. The incident only lasted several minutes and the opportunity to observe the handgun was limited. Mrs. Ross conceded in cross-examination she was not certain that it was a real firearm. Although Mr. Duval insisted that it was, his evidence is mostly based on the fact that the metal barrel of the handgun was held on his head. I am sure he is convinced that it was a real firearm but that is not enough. The evidence of a very experienced officer indicated that certain imitation handguns are made of metal and look exactly like real handguns. His evidence has to be given substantial weight and raises questions about Mr. Duval’s conclusion.
[47] Crown counsel also relies on the statement of the gunman “I will shoot you in the head” as evidence that he was holding a real handgun. Such evidence may in some cases be persuasive. However, in this case within a short time thereafter, Mr. Duval simply stood up and ran out the front door while the gunman who was standing beside him did and said nothing. The gunman’s statement of his intention and capacity to shoot Mr. Duval, in these circumstances, lacks a lot of credibility.
[48] The Crown has not proved beyond a reasonable doubt that a firearm was used in counts 2, 4, 5, 6, 9, 11 and 12.
Count 8 – Kienapple.
[49] I agree with the Crown that the actions of Mr. Hersi constituted an attempted unlawful confinement.
[50] Mr. Hersi’s actions in the context of the overall evidence convince me that the intruder’s intention was to dominate and control Mrs. Ross while they would force Mr. Duval to reveal where the safe was located. It was a specific and planned action to neutralize Mrs. Ross while the rest of the robbery could be put into effect. I am satisfied that the unlawful confinement of Mrs. Ross was not simply incidental to the robbery itself. It was a specific and planned action to neutralize Mrs. Ross to provide the necessary time and freedom to put the rest of the robbery into effect.
[51] The facts clearly support a finding that there is no legal nexus between the count of robbery and count number 8 of unlawful confinement. I find R.v. Rocheleau is applicable to this case.
[52] I am satisfied beyond a reasonable doubt that Mr. Hersi attempted to unlawfully confine Mrs. Ross when he attempted to put duct tape over her mouth. Mr. Dib is guilty as this obviously was a part of their common plan. Moreover, there is evidence Mr. Dib prompted Mr. Hersi to proceed with the taping when Mr. Hersi hesitated to do so when he realized Mrs. Ross was pregnant.
CONCLUSION
[53] For all of the above reasons, I find Mr. Dib and Mr. Hersi guilty of the following counts in the indictment:
[54] Count number 1, break and enter, contrary to section 348 (1) (b) of the Criminal Code of Canada.
[55] Count numbers 7 and 10, robbery, contrary to section 344 (1) (b) of the Criminal Code of Canada.
[56] Count number 8, attempted unlawful confinement of Amanda Ross, contrary to section 24 of the Criminal Code of Canada.
[57] I find both accused guilty of count number 3, assault with a weapon, contrary to section 267 (a) of the Criminal Code of Canada but I conditionally stay the conviction pursuant to the “Kienapple” principle. The Crown does not take issue with the stay of this count.
[58] I find both accused not guilty of counts number 2, 4, 5, 6, 9, 11 and 12.
Charbonneau, M.Z.
Released: December 23, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN, Plaintiff
-and-
Mohamed Dib. Accused
– and –
Mohamed Hersi, Accused
REASONS FOR JUDGMENT
Charbonneau, J.
Released: December 23, 2014