CITATION: R. v. Mahmood Ahmad, Russell Bullock and Mohamed Taha, 2015 ONSC 2453
COURT FILE NO.: CR-14-10000056-0000
DATE: 2015/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Mahmood Ahmad, Russell Bullock and Mohamed Taha
Accused
Michael MacDonald, for the Crown
John Collins and Joanna Collins for Mahmood Ahmad,
Benjamin Moss for Russell Bullock, and Ismar Horic for Mohammad Taha
HEARD: March 9 -13, 16 - 20, 23 – 27, 30, April 8, 2015
REASONS FOR JUDGMENT
a.j. o’mARRA J.:
[1] On March 19, 2013 three armed men entered apartment 3107, 299 Glenlake Avenue, Toronto to rob Richard Kruk of drugs and money. As Mr. Kruk fled the apartment into the hallway one of the men shot him in the back with a sawed off shotgun. One of the other men shot at him with a 9 mm handgun, but missed. The three assailants fled the apartment. Mr. Kruk survived.
[2] After the shooting, Mohamed Taha drove the assailants away from the area of 299 Glenlake Avenue in a red Mazda motor vehicle, license number BRAM174. As Mr. Taha drove from the scene southbound on Keele Street he turned the vehicle sharply in front of a TTC bus being driven in the same direction causing a collision. After a momentary pause he drove the damaged vehicle northbound back to Glenlake Avenue where the vehicle came to a stop. All of the occupants save Mr. Taha, fled on foot. Moments later, Mr. Taha was arrested as he was standing beside the opened driver’s door of the red Mazda motor vehicle.
[3] Russell Bullock and co-accused Mahmood Ahmad were arraigned and pleaded not guilty to 12 counts which allege they committed the following offences under the Criminal Code in the home invasion robbery:
(1) attempt murder of Richard Kruk, s.239(1);
(2) aggravated assault endangering life, s. 268;
(3) assault with a weapon, to wit a firearm, s.267(a);
(4) discharge of firearm with intent to endanger life, s.244(b);
(5) commit robbery while armed with a firearm, s.344;
(6) unlawfully possess a loaded prohibited or restricted firearm, to wit: a sawed off shotgun, contrary to s.95(1);
(7) unlawfully possess a loaded prohibited or restricted firearm, to wit: a handgun contrary to s. 95(1);
(8) possess a prohibited or restricted firearm, to wit: a sawed off shotgun knowing its possession is unauthorized, s.92(1);
(9) possession of a prohibited or restricted firearm, to wit: a handgun knowing its possession is unauthorized, s.92(1);
(10) unauthorized possession of a firearm, to wit: sawed off shotgun, s.91(1);
(11) unauthorized possession of a firearm, to wit: a handgun, s.91(1),
(12) the unlawful confinement of Richard Kruk, s.279(2), and
[4] In addition, Mr. Bullock is charged with having in his possession a firearm while prohibited, contrary to s. 117.01
[5] Also, he was arraigned on a count of possession of a controlled substance for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act, however, at the close of the Crown’s case the Crown invited a directed verdict of acquittal in the absence of any evidence.
[6] Mr. Taha was arraigned and pleaded not guilty to three counts in the indictment, which allege on March 19, 2013 he was:
(1) an accessory after the fact to the offence of robbery, contrary to s.463 (a),
(2) he operated the Mazda motor vehicle in a manner dangerous to the public, contrary to s.249 (1), and
(3) he failed to remain at the scene of an accident, contrary to s.252 (1) of the Criminal Code.
[7] Although Mr. Kruk, the victim, identified Mr. Mahmood Ahmad as one of three robbers and the person who shot him, for reasons more fully explained below, at the close of the Crown’s case, the Crown and Mr. Collins, counsel for Mr. Ahmad, invited the Court to find Mr. Mahmood Ahmad not guilty on all counts due to Richard Kruk’s belated and unreliable identification of him and verified alibi evidence which placed Mr. Ahmad elsewhere at the exact time of the robbery. Mr. Ahmad was found not guilty on all counts.
[8] Mr. Taha, of the three accused, testified on the trial. He admitted that he was the driver of the red Mazda motor vehicle that night. He testified that the three passengers he drove to the area of 299 Glenlake Avenue were his friend, Fathe Ahmed, and two others whose names he learned afterwards, Andrew Douglas and Russell Bullock. Mahmood Ahmad was not one of them. Mr. Taha claimed he was caught up in events he was unaware would occur, after which he became an unwilling participant acting under duress.
[9] The central issue on the trial with respect to Russell Bullock is one of identification. Has it been proven that Russell Bullock was one of Mr. Kruk’s assailants that night? After the acquittal of Mahmood Ahmad, the Crown’s theory changed and now takes the position that Mr. Bullock was a participant and a party in an unspecified way to the offences alleged.
The Facts
The Home Invasion and Shooting of Richard Kruk
[10] Richard Kruk testified that he was staying at his girlfriend’s apartment, 3107-299 Glenlake Avenue on March 19, 2013. He had been a mixed martial arts fighter and instructor at the time. Sometime during the evening between 10 and 10:30 pm, after his girlfriend left the apartment to go to McDonalds three armed men entered his apartment through the unlocked front door. Two of the men were black males with handguns and the third he described initially to police as being Hispanic, then later as Middle Eastern looking, holding a sawed off shotgun. They all yelled at him to tell them where his safe was. He was forced to kneel on the floor with his hands behind his head. He was kicked and gun-butted in the head.
[11] One of the black men, larger than the other black man left to go to the safe located in a bedroom closet. The other two stayed by the front door with their guns on him. When the man returned angry that he could not access the safe Mr. Kruk said he saw an opportunity to push by the man with the shotgun into the hallway. Just as he passed through the door he heard two shots. He was shot in the back and collapsed in the hallway. The assailants fled. He staggered down the hallway hitting the doors and calling out for help. He collapsed finally outside of an apartment at the other end of the hallway. A number of residents hearing the gunshots and Mr. Kruk calling for help called 911. The first 911 emergency call was received by the police at 10:27 p.m.
[12] The first responding officers found Mr. Kruk collapsed and bleeding profusely outside the apartment at the end of the hallway. Police Constable Brian Doyle spoke with Mr. Kruk and asked him if he knew who had done this to him. Mr. Kruk told him that he did not know. When asked as to what they looked like he said there were three of them, black and one Hispanic. Later in the hospital on March 21, after initially refusing to speak with the police until his lawyer was present, he repeated to Det. Marc Cioffi the description that it was the three guys, two black guys and the other Hispanic.
[13] Later, on March 23, 2013 he told the police the guy who shot him with the shotgun looked Middle-Eastern. He recognized the person who shot him as being Mahmood Ahmad, the brother of a friend. The next day he identified Mahmood Ahmad in a photo lineup.
[14] He suffered grievous injuries. He underwent emergency surgery. Shotgun pellets were removed from his wounds. He had several shattered ribs and half of a lung removed.
[15] Mr. Kruk testified he really did not pay attention to the two black men because he was more focused on the man with the shotgun because he believed he recognized him. He said he was wearing a black jacket with a high collar, black gloves and toque with a bandana over his face up to his nose. He could see the man’s eyes, part of his forehead and nose. He thought he was about 5’8” tall and looked Middle Eastern.
[16] At trial, he testified that it was only later he realized the person who had shot him and looked Middle Eastern was the younger brother of a friend he had known for more than 20 years. He had seen his friend’s younger brother in passing a number of times at the family home. His explanation for the earlier answers to police that he did not know who shot him and it was two black guys and one Hispanic guy, was because they were given at a time he was concentrating on fighting for his life.
[17] Mr. Kruk has been charged that he was in possession for the purpose of trafficking marijuana, percocets and cocaine, recovered from the safe. He denied that the drugs were his. He acknowledged that he sold marijuana but only in small amounts to friends.
[18] Initially, he indicated that the safe belonged to someone else and that it was only being stored in the apartment. Then he indicated that it was his safe and that the contents belonged to another person. Later, he said that some of the contents in the safe were his.
[19] I found Mr. Kruk to be evasive and inconsistent in his answers and not a credible or reliable witness. However, I do accept his evidence to the extent that he described three armed assailants, two of whom were black as having entered the apartment to rob him. He was forced to his knees, kicked and gun-butted in the head. He was shot with a 12-gauge shotgun in the back, the pellets having been removed in surgery. One of the assailants fired a 9 mm handgun at him. The bullet that penetrated the door of an adjacent apartment was recovered from a pillow on a sofa in the living room, and the ejected 9 mm shell casing was found on the floor in the hallway.
Events Before and After the Home Invasion
Mohamed Taha
[20] Mohamed Taha testified that on March 19, 2013 after leaving a friend’s house about 8:30 to 8:45 pm, on his way to his mother’s house he decided to go to a McDonalds in the area of Queen Street and Church Street to get something to eat. The red Mazda he was driving was a rental car he had for about ten days for work purposes. He parked at the end of Dalhousie Street and walked a short distance to McDonalds. Out front he saw a friend, Fathe Ahmed known from high school. On exchanging greetings Mr. Ahmed told him that he was going to go to a party and asked if he had a car to give him a ride to get some weed. He told Mr. Taha that he was in a rush and that if he took him he would buy him food and pay gas money after he got the weed. Mr. Taha agreed. On returning to the vehicle he saw Mr. Ahmed on his telephone just before getting into the front passenger seat.
[21] Before Mr. Taha drove away, Mr. Ahmed asked if he would wait a minute because a friend was going to come with them. Notwithstanding Fathe having said he was in a rush, they waited for about five or ten minutes. A person Taha had never seen before came to the car and got in the rear passenger’s seat behind him. He did not know his name however, later learned as a result of the court process that it was Russell Bullock. After Bullock got into the car Mr. Ahmed asked Mr. Taha if he could also pick up another friend who lived down near the corner of Church and Front Street. He drove a short distance to the area and parked. A short time later a person he had seen before at the community centre, but whose name he did not know, walked towards the car and got into the rear passenger’s seat. Later, he learned his name to be Andrew Douglas.
[22] Mr. Taha identified photographs of Fathe Ahmed, Exhibit 25 and Andrew Douglas, Exhibit No. 24 – both black men. In court, he identified the accused, Russell Bullock, who is partially Filipino, not black, as the other passenger in his car that night.
[23] Mr. Ahmed directed Mr. Taha to drive to the area of Bloor and Spadina to get the weed. When they got to the area Mr. Ahmed told him that it was further on and he should keep going west. Just after the Keele/Bloor Street intersection Mr. Ahmed directed Taha to turn right and drive all the way up toward the next stop sign. He told him to stop there. He asked Taha to wait five minutes so he could get the weed if he was going back downtown whether he could drive him back. Mr. Taha agreed. Mr. Taha had started to charge his cell phone. He had a number of charging cables and the others in the back seat asked to charge their phones as they got out. The three passengers then left the car.
[24] Mr. Taha attempted to pull into a parking space on the street however he was unable to fully pull the car into the space and stopped it on an angle. He sat there listening to music on his radio and exchanged a number of text messages with some friends as he waited for them to return.
[25] In an agreed statement of fact entered as Exhibit No. 55, Mr. Taha’s cell phone records indicate a number of innocuous text messages sent and received on March 19, 2013 between 10:25 and 10:27 p.m., such as, text received, “Wuh you deal in wit” and text sent, “Nun juss got my phone fixed n shit”.
[26] The next thing he knew, he saw Fathe running toward the car in a panic. On getting into the front passenger’s seat Fathe said, “let’s get the fuck out of here – just go go go”. Just as he started to pull out he saw Andrew Douglas heading to the car and right behind him was Russell Bullock. Both men jumped into the rear passenger’s seat. Instantly there was an argument in which Andrew said to Fathe “You’re going to leave me”? Fathe responded that they were just going to drive around the building to pick him up.
[27] Everyone started yelling at Taha to “drive drive drive”. He turned right onto Glenlake from the road he had been parked on (Oakmount) and then made another right south on Keele Street.
[28] He did not know what had happened but he described the environment in the car as being “uncomfortable” with everyone yelling “drive drive drive”. As he drove southbound on Keele Street in the curb lane a police cruiser was seen entering the upcoming intersection. Someone in the car yelled, “They’re blocking the road”. Just then he turned to look back and he saw a shotgun pointed upward between the two back seat passengers, Douglas and Bullock. He testified that it looked like the sawed off shotgun recovered by the police later, shown to him in Exhibit No. 16.
[29] Mr. Taha testified, on seeing the shot gun he “just completely lost it and started shaking uncontrollably”. He heard someone yell “turn turn” and instinctively he turned the vehicle to the left. He had been driving in the curb lane and turned sharply across the left passing lane. He said he did not see the bus in the left lane as he turned in front of it. The bus smashed into the rear driver’s side causing the car to spin into the northbound lanes and the airbags to deploy. He heard someone in the car yelling “Drive drive go go go”. He said he was scared because “these guys had a shotgun” and he did not want to argue with them.
[30] He drove northbound on Keele Street to the first street (Glenlake) and heard someone say “make a right”. The car was driving in a jerky fashion. He stopped the car at which point he heard one of the rear doors open but he did not look back because he was too scared. Someone continued to yell “drive drive” and he got to a stop sign and found it too hard to continue and he stopped the vehicle on the next street and parked it (Indian Grove). The others had fled. He could not stop shaking and put his head down on the steering wheel. He sat for a few minutes then stepped out of the car at which point a police cruiser pulled up. The officer that exited placed him under arrest.
[31] Mr. Taha was specifically asked if he knew Mahmood Ahmed. He responded “no”, he had never seen him before. The first time he had ever seen Mr. Ahmed was in court after he was charged.
[32] In cross-examination, Mr. Taha acknowledged that he had never seen the person he identified as Russell Bullock before that night. He agreed that he had only seen the person after he got in the rear passenger door and glanced at him for a few seconds when they exchanged greetings. Later that evening, he saw the person he identified as Russell Bullock leave the vehicle and then again as he raced back to the car and jumped in the back seat. Even though they had been together in his car for over an hour he did not pay much attention to the backseat passengers.
The Investigation
[33] The investigation confirmed the route driven by Mr. Taha after the shooting took place and the flight of the assailants.
[34] Constable Paul Walker who was on patrol in the area received a radio call at 10:27 p.m. about the shooting at the 299 Glenlake Avenue apartment building. As he drove northbound on Oakmount Street from Bloor Street toward the intersection of Glenlake Avenue he saw a red Mazda motor vehicle parked on a 45 degree angle on the east side of Oakmount at the curb – sticking out from the other vehicles parallel parked along the curb. His in-car camera video, Exhibit No. 11, shows the red car not fully parallel parked with the front sticking out into the roadway.
[35] James Gauthier who lives near the corner of Glenlake Avenue and Oakmount Street heard the sirens of police cruisers as he stood on his porch to have a cigarette. He saw a red sedan, a new four-door Mazda, pull up in front of his house. The rear driver side door opened and two men who came running from the rear of the apartment building (299 Glenlake Avenue) jumped into the back seat of the car. He heard the second person who jumped into the back seat to yell something like “wait up”. The way he held his arms to his body as he ran it appeared he was holding something, but because of the shadows and limited lighting he could not tell what it was.
[36] Ryan Sadler was driving his vehicle northbound on Keele Street just north of Bloor when he saw a southbound red car in the curb lane next to a southbound TTC bus in the passing lane. The red vehicle made a quick U-turn maneuver right in front of the bus. He saw the bus hit the rear end of the car. Mr. Sadler continued northbound slowly in his vehicle and observed that the red Mazda kept moving northbound fleeing the scene of the accident. Mr. Sadler took the licence plate number down as BRAM174.
[37] The TTC bus on-board camera recorded the car turn in front of the bus and the collision occurring at 10:29 pm. (Exhibit No. 21)
[38] Mr. Marcel Grilo who was travelling northbound in his motor vehicle on Keele Street saw the collision as well. He followed the red Mazda as it headed northbound to the intersection of Keele Street and Glenlake Avenue where it turned right. He stopped at the intersection to observe it as the vehicle was brought to a stop. He saw one person exit the driver’s side and run northbound and two others exit the right side of the vehicle and run southbound.
[39] Constable Daniel Walker responding to the 911 shooting call in his cruiser was directed at 10:30 p.m. to the area of Glenlake Avenue and Indian Grove one street east of Keele Street to deal with a motor vehicle that had been involved in an accident and believed to have been involved in the circumstances of the shooting. On arrival, he saw a man standing beside the open driver’s door of the red Mazda stopped at the curb. The video recording from his in-car camera (Exhibit No. 22) shows Constable Walker arrest Mr. Taha beside the opened driver’s door of the vehicle. Constable Walker described Mr. Taha as appearing to be “very shaken up”, in shock and nervous.
[40] Christine Slanker who lives on Indian Grove south of the Glenlake Avenue intersection was standing on her front porch having a cigarette when she saw a young man come down the street and stop in front of her house. Her attention was drawn to him because he pulled down the hood of his hoodie, then take off his jacket. She thought it strange because it was cold that evening. It was dark out and her vision of him was obscured by tall bushes out front of her residence. She described him as being brown in complexion. Shortly after a second man came up to the first and the two continued south on Indian Grove.
[41] Moments later a third man came down Indian Grove walking down the centre of the road and he kept looking back up toward Glenlake Avenue. He stopped in front of her house. She was able to see him better than the other two who were on the sidewalk because the bushes did not obscure her view of him. He was heavier set and stockier than the other two and looked Hispanic. He continued south on Indian Grove after the other two. She went inside and told her husband. When he went out onto the porch he saw police cruisers at the Glenlake Avenue intersection.
[42] On March 22, 2013, Ms. Slanker was shown a photo lineup of 12 photographs. Russell Bullock’s photograph was number 12 in the array. She selected number 1 at the time, a person other than Mr. Bullock. Later, at the preliminary inquiry she identified Mr. Bullock in the dock as the person she saw that night. Similarly, at trial she identified Mr. Bullock. She was shown the lineup again and testified that in comparing photograph number 12 and number 1, which she had selected at the photo lineup she said that she thought number 12 was closest to the person she had seen.
The Forensic Evidence
[43] In the immediate area where the red Mazda had been left by Mr. Taha on Indian Grove just around the corner from Glenlake Avenue the police found several articles of clothing and a backpack discarded in bushes and on the sidewalk. They recovered a black toque, a black North Face jacket, a black and gray nylon North Face jacket, black glove, and a backpack. Inside of the backpack the police found two live shotgun shells.
i) Gunshot Residue
[44] The articles of clothing were submitted to the Centre of Forensic Sciences to determine whether DNA and/or gunshot residue could be detected on the items. Mr. Robert Gerard, a forensic chemist, testified that in analyzing a sample taken from the black North Face jacket he detected five particles of gunshot residue, each with all three of the requisite elements – lead, barium, and antimony. The presence of gunshot residue indicates that the garment was possibly worn by a person who may have discharged a firearm, was in the presence of someone who discharged a firearm or gunshot residue from another surface that was transferred by coming into contact with the garment.
ii) DNA Results
[45] Mr. James Sloots, a forensic biologist from the Centre of Forensic Sciences tested the black North Face jacket for the presence of DNA. Samples were taken from the inside left sleeve cuff, where there is presence of blood, and a cut out of the back of the jacket collar. A DNA profile was produced and compared with a DNA sample from Russell Bullock’s blood, obtained by warrant. He concluded that the sample from Russell Bullock used as a comparison could not be excluded as the source of the male DNA from the blood on the inside left sleeve cuff and the cut out from the neck collar of the black North Face jacket found near the vehicle. There was one minor contributor detected, however, the major contributor at 15 locii was that of profile number 1, Russell Bullock. Further, the probability that a randomly selected individual unrelated to Russell Bullock would coincidentally share the observed DNA profile was estimated to be 1 in 7.2 quintillion.
[46] Examination of the black glove found near the red Mazda revealed that it contained the DNA profile of Fathe Ahmed. Further, the gray North Face jacket found near the Mazda was determined to contain the DNA profile of Andrew Douglas. The other two passengers who were identified by Mohamed Taha.
iii) Cellular Telephone Number 647-852-5219
[47] After the red Mazda was seized and a search warrant obtained, the police located three cellular phones. The police also found a rental agreement in the centre console of the vehicle in the name of Mohamed Taha.
[48] When the car was searched at the Forensic Identification Services (FIS) garage by Detective Constable Steven Head he located the three cell phones left by Taha and his two backseat passengers and turned them over to Police Constable Montcalm to take to the service locker.
[49] Detective Mathew Abramovitz, the FIS officer in charge of the investigation testified that Constable Montcalm had the three cell phones on his desk opposite his desk. He took possession of them for the purpose of calling dispatch using 911 in order to ascertain the number associated to each phone.
[50] One of the phones had the number 647-854-5219. The Crown called the evidence of Sergeant Paul Beauparlant who was involved in an unrelated matter 5 months before the robbery to establish whose phone it was.
[51] Sergeant Beauparlant testified that on October 12, 2012, when he was on uniform bicycle patrol in the area of Queen Street East and Louvain Avenue, a high crime area, he saw an individual he perceived to be loitering in the rear courtyard of an apartment building at 29 Louvain Avenue. Under the authority of the Trespass to Property Act he stopped to investigate the individual. He asked the male to identify himself and to indicate why he was there. The male verbally identified himself as Jason Webster and stated that he was waiting for a friend, whose name he could not provide. The officer asked him for his address and telephone number. He gave an address of 202 Clonmore Drive, Toronto, and phone number 647-854-5219. Another male recognized by the officer from previous dealings came out of the building. He told the officer that he lived at 29 Louvain Avenue and that the person he was talking to was there to visit him.
[52] The officer recorded the contact information he received from the male. Later, on return to the station after a computer search he learned that the name “Jason Webster” was false. However, he found that the information provided by the male he had dealt with related to Russell Bullock. The officer checked an available photograph of Russell Bullock and confirmed in his Community Inquiry Report that the person he spoke to at 29 Louvain Avenue was Russell Bullock, the same person identified in the police photograph as Russell Bullock.
[53] Sergeant Beauparlant was called on the trial and testified that the person he dealt with was the accused before the court, Russell Bullock. He was unable to produce the photograph that he viewed on October 12, 2012, however, he maintained that the person he dealt with and whose photograph he identified him from was the same person before the court.
[54] The Crown contends that Beauparlant’s evidence with respect to the telephone number confirms that 647-854-5219 was the cell phone of Russell Bullock recovered in Taha’s vehicle.
[55] Defence counsel argued that Beauparlant’s evidence amounted to no more than an in-dock identification having failed to produce the photograph he observed on October 12, 2012. Further, the court should doubt the accuracy of the information provided by an individual who falsely identified himself to the officer in the first place. Although there is some force to the argument, I accept Sergeant Beauparlant’s evidence that shortly after dealing with the individual at 29 Louvain Avenue he went back to the station and viewed a photograph which bore the image of Russell Bullock. He recorded the information as he was required to do on the Community Inquiry Report, that the person he dealt with on that occasion was Russell Bullock with the known telephone number of 647-854-5219.
[56] Defence also contends that because Constable Montcalm was not called in evidence and Detective Constable Head testified that he turned over the cell phones to Constable Montcalm to lock in the FIS service locker that the chain of continuity was broken based on Detective Abramovitz’s evidence that the three cell phones were on Montcalm’s desk, not the service locker. In this instance, I note from the evidence that Constables Head, Montcalm, and Detective Abramovitz all worked in Forensic Identification Services in the same office with adjacent desks. Detective Abramovitz and the other officers were all working on the same case. Detective Abramovitz had detailed Montcalm to obtain the cell phones. I find that it is reasonable to infer that the phones Detective Abramovitz took from Constable Montcalm’s desk were the three phones seized under warrant from Mr. Taha’s motor vehicle.
[57] One of the three cellular phones seized from the Mazda was Mohamed Taha’s phone. The other phone with number 647-852-5350 was subscribed by a person named Troy Jackson, however, further investigation revealed that Andrew Douglas, a client of Toronto Social Services, listed that phone number as his.
Identification Evidence
[58] The Crown relies on direct eyewitness evidence and circumstantial evidence to prove the identity of one of the assailants as Russell Bullock.
[59] Each of the identification witnesses have frailties and weaknesses that affect the weight, if any, to be attached to their evidence. Martin J.A. in R. v. Williams, [1992] O.J. No. 39 at para. 4 stated:
Identification always has certain inherent frailties. Identification evidence may be strengthened if the identifying witness is able to pick out the person whom he claims to have seen on the occasion in question from among a number of other persons of similar age and size and general physical appearance in a line-up. On the other hand, an identification of an accused as the offender made for the first time when the prisoner is in the dock possesses particular frailties over and, above the normal frailties attaching to identification evidence.
[60] Similarly, Arbour J. in R. v. Hibbert, 2002 SCC 39, [2002] S.C.J. No. 40 at para. 50 set out a guiding admonition that must be kept in mind in considering “this superficially cogent evidence” because of its inherent dangers:
I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury (trier of fact), can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded “little weight”, goes far enough to displace the danger that the jury could still give it weight that it does not deserve.
[61] The misidentification of Mahmood Ahmad by Mr. Kruk as the assailant who shot him is illustrative of the fallibility of a confident identification witness’ opinion as to the person observed.
[62] The direct eyewitness evidence that identifies Russell Bullock as being involved in the circumstances that evening comes from Catherine Slanker, the woman who stood on her porch having a cigarette and Mohamed Taha, the driver of the car who transported three people to the area of the shooting and away afterwards.
[63] Ms. Slanker testified that she saw three males. The first two came down the street on the sidewalk in front of her house. Her attention was drawn to the first male because he took off his hood and jacket which she considered unusual given the cool weather that evening. He was followed closely behind by a second male. They both appeared to have a “brown” complexion. The third male came separately behind the other two down the middle of the road looking back up the road. She described him as Hispanic looking. She provided no other details in terms of his facial appearance. He was described as appearing to be heavier and stockier than the other two.
[64] When shown a photo lineup the next day she identified someone other than Russell Bullock as the person she saw. At the preliminary inquiry and at the trial when asked if she saw the person in court who she saw that evening she identified Russell Bullock.
[65] Although I find Mr. Kruk’s evidence to have been unreliable on the whole, I note that initially when he was in a state of extremis he described one of the three men who entered the apartment armed that night as Hispanic, as did Ms. Slanker.
[66] Mr. Taha indicated that the person he identified as Russell Bullock sat in the rear seat of his vehicle behind him. He observed him only for a few seconds when he initially entered the car and then again when he saw the person leave the car and return to the car as a third person later. He testified that he next saw him when they were in court as co-accused. That was when he learned his name was Russell Bullock. In some respects, Mr. Taha’s identification of Mr. Bullock as being one of the three men who joined him in his car that evening is akin to an in-dock identification, although he saw him at a much earlier time in the court process.
[67] The circumstantial evidence which provides an evidentiary link between Bullock and the scenario played out that evening is the DNA evidence found on the left sleeve and neck collar of the black North Face jacket discarded at the scene. In addition, one of the three cell phones recovered from Mr. Taha’s vehicle with the cell phone number 647-854-5219 is the same as given by an individual five months earlier to Sergeant Paul Beauparlant, who he identified as Russell Bullock. Sergeant Beauparlant’s identification of Russell Bullock during his testimony on the trial is also akin to an in-dock identification given the gap in time.
[68] I recognize that the identification of Russell Bullock by Ms. Slanker and to some extent that of Sergeant Beauparlant may have been influenced by the isolated presence of the accused in the prisoner’s dock and as such bears the inherent danger of misidentification beyond the normal frailties of identification evidence.
[69] The evidence Mr. Taha and Ms. Slanker considered individually or together as in-court identification of the person as Russell Bullock should be accorded little weight. However, the evidence of the DNA of Russell Bullock on clothing discarded by one of those involved in the vicinity of the Mazda motor vehicle and the cell phone with a number associated with Russell Bullock supports Taha’s identification of Bullock as one of the passengers in his car that night and by Ms. Slanker as the Hispanic looking man who walked down the centre of Indian Grove in front of her house.
[70] Each strand of identification evidence relied on by the Crown has its obvious weaknesses. Individually they are fraying threads however, when considered together with the DNA and GSR evidence, their collective strength is enhanced. When considered in conjunction with the DNA forensic evidence taken from the black jacket discarded by one of the perpetrators by Taha’s vehicle, I am satisfied that Mr. Taha and Ms. Slanker saw Russell Bullock that night.
[71] I consider as well Taha’s evidence of Bullock leaving the car, rushing back to it, the presence of a sawed off shotgun in the back seat between Bullock and Douglas, his flight from the car, the presence of gunshot residue found on the garment discarded by Mr. Bullock, as evidence of his involvement in the armed robbery that night.
[72] Further, I accept Richard Kruk’s evidence to the extent that there were three persons who entered his apartment that night all of whom demanded to know where the safe was located for the purpose of robbing him. They were all armed, two with handguns and one with a sawed off shotgun. The three persons who entered Kruk’s apartment had a common unlawful purpose – to rob Richard Kruk while armed with loaded firearms. The sawed off shotgun and the 9 mm handgun were both discharged as Mr. Kruk tried to flee his confinement.
[73] I am satisfied that Russell Bullock was at Richard Kruk’s apartment that night, with two others, all armed with firearms for the purpose of robbing him of drugs and money.
The Offences: Russell Bullock
[74] The Crown’s position is that Mr. Bullock is liable for offences charged as a party under s.21 of the Criminal Code. Section 21 reads as follows:
21(1) Every one is a party to an offence who,
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[75] Doherty J.A. in R. v. Jackson, 68 C.C.C. (3rd) 385 at p. 421, aff’d, 86 C.C.C. (3rd) 385 (SCC) explained the basic principles of accessorial liability under s.21(2) as follows:
Section 21(2) holds a person who forms an intention with another to effect an unlawful purpose and to assist in carrying out that purpose, liable for a crime committed by that other person if that crime is committed “in carrying out the common purpose” and if the non-perpetrator “knew or ought to have known that the commission of the offence would be a more probable consequence of carrying out the common purpose”. see R. v. Moore, 15 C.C.C. (3rd) 541 (Ont. C.A.).
The liability of the party for the incidental crime is premised on an intention to commit one crime (the unlawful purpose) and foresight that another crime (the incidental offence) will probably be committed by a confederate in the course of effecting the unlawful purpose.
Section 21(2) must be distinguished from s.21(1). The latter section is aimed at those who participate in the actual offence for which liability is imposed. Section 21(2) widens the circle of criminal culpability to include those who do not participate in the alleged crime but who do engage in a different criminal purpose and foresee the commission of the alleged offence by a party to that criminal purpose as a probable consequence of the pursuit of the criminal purpose: see R. v. Simpson, 38 C.C.C. (3rd) 481 at pp.488-91 (S.C.C.).
The reach of s.21 (2) depends substantially on how the foreseeability requirement is measured. That measurement necessitates the determination of the nature of the foreseeability required as well as a determination of what it is that must be foreseen.
[76] In this instance, I am satisfied based on the identification and forensic evidence cited above that Russell Bullock, either as a co-principal or aider and abettor under s. 21 (1) having entered the apartment armed and demanding the location of the safe from Kruk committed the offence of robbery while armed with a firearm. (Count No. 5 armed robbery)
[77] Similarly, Mr. Bullock as one of the three perpetrators who kept Richard Kruk in his apartment while they sought to affect the robbery confined him without lawful authority, and as such he is guilty of Count No. 12 unlawful confinement.
[78] All three robbers were armed in order to affect the common unlawful purpose of robbery and as such Mr. Bullock is guilty of possession of a loaded prohibited or restricted firearm offences, Counts 6, 7, 8, 9, 10, and 11.
[79] The Crown argues that under s. 21 (2) it ought to have been reasonably foreseeable that robbery with loaded firearms could result in the use of them. He ought to have known, all bearing firearms, that use of lethal force could result in serious and/or grievous harm to a person who resisted being robbed.
[80] Mr. Bullock is light skinned as compared to the others identified by Taha, Andrew Douglas and Fathe Ahmed. It is likely that he was the person who shot Mr. Kruk based on the general description given by Kruk of the three men who entered the apartment, and the one who shot him with the shotgun. Further, I cannot be sure that it was Russell Bullock who shot Kruk with the shotgun or shot at him using the 9 mm handgun. However, I am satisfied he was one of the three assailants engaged in a common unlawful purpose and who threatened Richard Kruk with a firearm. Whether he shot at Kruk or he was the third man threatening Kruk with a firearm he is guilty of assault with a weapon, Count No. 3.
[81] The offence of attempted murder is a specific intent offence. There is insufficient evidence to conclude that Bullock was the principal who shot Kruk with an intention to kill him, or as a party to the armed robbery that he knew killing him was part of the robbery plan. (See, R. v. Adams, [1989] O.J. No. 747 (OCA) citing R. v. Logan et al., 67 O.R. (2d) 87 for the direction, when considering s. 21 (2) objective foreseeability is not sufficient to inculpate a party to the offence of attempted murder). Mr. Bullock will be found not guilty of attempt murder, (Count No. 1).
[82] In considering the accessorial liability for general intent offences of aggravated assault and endangerment of life the question remains as to whether the shooting of Kruk was objectively foreseeable? Three men entered the apartment, armed with loaded firearms to rob Richard Kruk, a large man trained in mixed martial arts. They threatened him with firearms, forced him to his knees, kicked and gun-butted him in the head. All three were prepared to use violence to accomplish their common purpose. I am satisfied that it was reasonably foreseeable that use of a firearm could occur in these circumstances.
[83] Bullock, as a party to a common unlawful purpose, is guilty of the offences of aggravated assault, and discharging a firearm with intent to endanger life. (Counts 2, and 4)
[84] The Crown tendered in evidence certified copies of endorsed Youth Court Information and a 10 year Firearms/Weapons Prohibition Order made by the Youth Court on March 9, 2012 against Russell Bullock, pursuant to s.51 (1) of the Youth Criminal Justice Act. Based on the findings above, Mr. Bullock is found guilty of Count 16, possession of a firearm while prohibited.
The Offences: Mohamed Taha
i) Accessory after the Fact
[85] Mr. Taha testified in his own defence providing an exculpatory account as to his own involvement. In assessing the evidence as a whole I am guided by the principles set out in R. v. W. (D.), 63 C.C.C. 3d 397, (SCC).
[86] In assessing his credibility I consider the test cited by Code J. in R. v. Koroma and Cox, 2012 ONSC 4397 set out by O’Halloran J.A. in Faryna v. Chorny, [1952] 2 DLR 354 (BCCA) at p. 356-7:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be in harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.
[87] Counsel for Mr. Bullock argues that Mr. Taha’s claim of not being complicit is not credible. Why would those who planned to commit a robbery rely on finding someone with a car just by happenstance to provide the transportation to and from the robbery, as suggested by Mr. Taha. It would not have been a very good plan. Further, counsel argued that the way the vehicle was parked suggests it was to provide a quick departure.
[88] It may not have been a good plan by the others, but there are several aspects to his evidence in my assessment, which are consistent with the surrounding circumstances and credible. The first arises from the circumstance of his arrest. Once the vehicle was brought to a stop and the other occupants fled discarding clothing as they went, he remained at the vehicle. The arresting officer, P.C. Walker observed Mr. Taha to be shaken but cooperative. His behavior at the time of arrest is consistent with his declared shock and surprise at what had just transpired.
[89] Second, the red Mazda as a getaway vehicle could have been easily traced to him because it was rented in his name. Third, he texted messages casually with others as confirmed by service provider records as he sat waiting for Fathe and the others to return. His behaviour is consistent with him having no prior knowledge of any plan of the others to commit an armed robbery that night.
[90] The Crown in argument conceded that his evidence is he did not know in advance or afterwards about a robbery with firearms is sufficiently credible to raise a reasonable doubt at least with respect to the allegation that he was assisting the perpetrators’ escape and acted as an accessory after the fact. I agree.
ii) Dangerous Driving
[91] To prove dangerous driving the Crown must prove both the actus reus and the mens rea of the offence of dangerous operation beyond a reasonable doubt.
[92] First, the trier of fact must be satisfied the accused drove in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition, and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to have been at that place”. It is the manner in which the vehicle was operated that is at issue not that an accident was the consequence of the driving.
[93] Second, the trier of fact must be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. If an explanation is offered by the accused, then in order to convict, the court must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[94] The standard against which the conduct must be measured is conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found him or herself in when the events occurred in order to assess the reasonableness of the conduct.
[95] Mr. Taha has admitted to turning in front of the bus. It was objectively a marked departure from the standard of care of a reasonably prudent driver. However, he has offered an explanation. He asserts he acted out of fear and in a state of panic because of a comment made by one of his passengers that the police were blocking the road ahead, after which he saw the shotgun between his two backseat passengers, and he was being continually urged to drive. When told to “turn turn turn” he just reacted. He did not see the bus in the passing lane as he turned.
[96] Similarly, after the collision and being urged to “go go go”, “drive drive drive”, he continued to drive because he was in fear. They had a shotgun and he did not want to argue with them.
[97] Counsel for Mr. Taha argued that he acted under duress in these circumstances.
[98] In R. v. McRae, [2005] O.J. No. 3200 (OCA), the elements of the defence of duress were summarized as follows:
(1) The accused must act solely as a result of the threats of death or serious bodily harm to himself or another person. (2) The threats must be of such gravity or seriousness that the accused believed that the threats would be carried out. (3) The threats must be of such gravity that they might well have caused a reasonable person in the same situation as the accused to act in the same manner. (4) The accused must not have an obvious safe avenue of escape.
[99] The Court of Appeal in R. v. Mena, [1987] O.J. No. 392 observed that the threat required to invoke the defence of duress could be either express or implied. However, it was further observed:
Mere fear does not constitute duress in the absence of a threat, either expressed or implied. Where an implied threat is relied upon to constitute duress either under s.17 or under the common law, the threshold question is whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind. On this threshold question, an objective standard must necessarily be met. If the judge at the conclusion of the evidence is of the opinion that no reasonable jury could find that the words or conduct constituted a threat of the kind required, the judge will withdraw the defence of duress from the jury.
[100] Further, in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, the Supreme Court noted that verification of serious duress claims may be difficult and that courts should apply a reasonable but strict standard to the defence.
[101] In this instance, counsel argues that the threat was implicit given the presence of the shotgun and the urgings of his passengers to drive.
[102] The threshold question as set out in Mena is “whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind.”
[103] In R. v. McRae the accused, charged with being an accessory after the fact, claimed the defence of duress for helping his cousin destroy evidence and dispose of the bodies of two hitch hikers his cousin murdered while they were staying at the cousin’s remote cabin. The accused testified that he had been awakened in the early hours one morning by the accused who asked him to help because he had shot one of the hitch hikers and put his body in a fire. His cousin then woke up the other hitch hiker and told her to look in the fire, then shot her. He told the accused to help him put her body in the fire. The accused at trial testified that he was too afraid to leave because he believed that his cousin would hunt him down and kill him.
[104] At trial the judge concluded that there is no air of reality to the defence of duress because there were no specific acts or gestures that could objectively amount to a threat in the situation. The Court of Appeal found that the trial judge was in error in finding no air of reality. Rather, the situation in which the accused found himself in could reasonably be perceived as one of stark horror involving “escalating levels of irrational violence”. In that instance, the cousin’s conduct of murdering two people, shooting one in the presence of the accused, combined with his instructions to the accused to assist him while armed, was capable of communicating a serious threat that he would kill the accused if he failed to carry out his wishes.
[105] The other case relied on by Mr. Taha is R. v. Wood, [1999] O.J. No. 2278 which involved an accused charged with negligent operation of a motor vehicle, dangerous driving causing bodily harm and failing to remain at the scene of an accident. In that instance, the accused was stopped and blocked in by others with their cars because he had been driving erratically. The court found that the other drivers in doing so had been acting aggressively. While there was no physical violence made out the court accepted that the accused’s perception was that he believed he was in imminent peril. The court observed at para. 32:
I am satisfied, on the totality of the evidence, that Mr. Wood reasonably believed that he was being confined on Fairview Road. It was night time. He was scared on account of the obstruction of his exit from the street. His fright was compounded by the upset appearance of Fakih and Dolganiuk – both physically intimidating men whom the accused had given a reason to be aggravated with him.
[106] Further, one of the civilian witnesses ended up on the hood of Wood’s vehicle and smashed his windshield with his cell phone as he attempted to drive away. The court observed that the accused’s stated fear as a result was not unreasonable. He believed he faced an emergency and a threat to his personal safety.
[107] In this case, Mr. Taha, by turning his vehicle into the path of a bus he had been travelling beside, crossing a lane without warning, was a marked departure from the standard of care of a reasonably prudent driver. I do find his explanation of acting under duress as a result of an implicit threat does not apply in the circumstances. He did not know what had transpired before the passengers returned to his car. He knew they were agitated and wanted to get out of there. They were afraid of the police and he saw that there was a shotgun in the car. I do not doubt that he was in a state of fear. However, nothing was said or done to suggest that he was threatened by them, or that the shotgun would be used to shoot him. Nothing was said or done to cause a reasonable person in the same situation as the accused to act as he did – to immediately turn the vehicle from the curb lane across the path of a bus in the passing lane without looking. His situation was in no way one of stark horror or imminent peril as found in McRae or Wood if he did not turn when or where he did. Mere fear does not constitute duress in the absence of a threat. There were no acts, conduct or words that could be reasonably construed as an implicit threat to him from those he feared.
iii. Fail to Remain
[108] With respect to the charge of fail to remain under s.252(1):
Every person commits an offence who has care, charge or control of a vehicle…that is involved in an accident…and with intent to escape civil or criminal liability fails to stop the vehicle…
[109] Under s.252(2):
Evidence that an accused failed to stop his vehicle…is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.
[110] There is no dispute that Mr. Taha fled the scene of the accident. The issue here is whether there is evidence to the contrary as to his intent to escape “civil or criminal liability”.
[111] In R. v. Riopka, [1986] O.J. No. 2717, at para. 11 Borins D.C.J., as he then was, noted that it is well established that the civil or criminal liability referred to in the fail to remain offence must be in relation to the accident in issue. Further, at para. 13:
It is trite law that evidence to the contrary may be found in evidence led by the Crown or the defence, or may be found in evidence of facts which tend to negative that the defendant had the intent to escape civil or criminal liability.
[112] Earlier, in R. v. Vespa, [1979] O.J. No. 800 Brooke J.A. noted at para. 6:
That evidence to the contrary may include an explanation by the accused that negatives that the accused had the intent to escape civil or criminal liability. (See also, R. v. Campbell, 17 C.C.C. (2nd) 320 at p.322.)
[113] In this instance, I accept Mr. Taha’s explanation that he continued to drive away from the scene of the collision with the TTC bus because he was being urged to do so and he was in fear of those in his car who possessed a shotgun. His intent was not to escape the civil or criminal liability from the accident. His explanation is sufficient to raise a reasonable doubt in these circumstances.
[114] In the result, I find Mr. Taha not guilty with respect to Count 13, accessory after the fact and Count 15 fail to remain at an accident. I find Mr. Taha, guilty of Count 14, dangerous operation of a motor vehicle.
A.J. O’Marra J.
Released: April 8, 2015