CITATION: R. v. Sheikh-Hussein, 2015 ONSC 2888
COURT FILE NO.: CR-14-50000345-0000
DATE: 20150416
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Wilson, for the Crown
CROWN
- v -
MOHAMED SHEIKH-HUSSEIN
C. Morris, for Mohamed Sheikh-Hussein
DEFENCE
HEARD: January 19 and 20, and April 10, 2015
Thorburn J.
1. Overview
[1] Mohamed Sheikh-Hussein is charged with,
a) robbing a Canadian Imperial Bank of Commerce (CIBC) Bank while armed with a restricted or prohibited firearm (s. 344(1)(a) of the Criminal Code);
b) using an imitation firearm to commit the indictable offence of robbery (section 85(2) of the Criminal Code);
c) threatening death (section 264.1(1) of the Criminal Code), and
d) failing to comply with two probation orders (section 733.1(1) of the Criminal Code).
[2] On June 27, 2013, at approximately 17:02 an individual came to the CIBC, branch 2014 located at 201 Lloyd Manor Drive. At the time, only two tellers were working at the bank counter: Ms. Elissa Faraone (who was robbed) and Ms. Maria Notarianni (who was at the next counter about 9 feet away). It is agreed that the robber presented a note threatening to shoot everyone, whereupon Ms. Faraone handed him the money.
2. The Incident
Description of the Robber
[3] Ms. Faraone was the teller who served the robber and received the demand for payment. Ms. Faraone described the robber as approximately 25 years of age, "kind of Somalian" with a medium complexion, average body type and "average height", about five feet eight inches tall. She says she is not good at estimating height. The robber had a scruffy beard as though he were unshaven. He had some crooked teeth in the front. She does not remember how crooked but she noticed because at the time she was wearing braces and was sensitive about people's teeth. The man never smiled at her. His lips were not super thin. She did not notice his eyebrows.
[4] Ms. Faraone testified that the robber was wearing light coloured pants and shirt, light shoes and a safety vest with reflectors on it. The vest was so bright that it "threw me off" and she might not have noticed as much about the rest of his clothing. He had a hat and possibly also a hood. She thought he looked sloppy as the pants were really baggy.
[5] He wore work gloves with rubber grips on the palms.
[6] Ms. Notarianni was a teller at the counter next to that of Ms. Faraone. Ms. Notarianni testified that she was preoccupied with her own customers so only glanced at the person who robbed Ms. Faraone for a few seconds.
[7] Ms. Notarianni testified that the individual had a dark complexion, as though he was of Indian or Pakistani descent. She estimates that he weighed about 160 pounds, was about 6 feet tall, and was in his early twenties. He had some scruffy facial hair. She did not notice his teeth. He wore a distinctive checkered hat and she could not see his hair.
The Robbery
[8] The robber stood in line and then came to Ms. Faraone's counter. Ms. Faraone said that as he approached the counter she said, "Hi. How are you? How's your day?" He did not respond and instead passed her a note.
The Note
[9] She picked up the note with her bare hands and read it. It read, "Don't make any movements. This is a fucking robbery. Give me the cash that's in the front. Without any sudden movements. I have a gun on my waist. And I will shoot everybody in here. Starting with you. You have 2 minutes before I shot (sic) you in the face. Starting now!!!"
[10] After reading the note she nudged her safe and locked it with her knee. She took a step back so that he could see what was in her drawer. He said, "All of it". She was afraid as she saw a glimpse of a gun in the waist of the man's pants. She saw very little at that point.
[11] It is agreed that there are two fingerprints on the note neither of which are Mr. Sheikh-Hussein's.
[12] Ms. Faraone does not recall anything specific about the robber's voice but he spoke very softly and said very few words.
The Gun
[13] He pulled the gun out and showed it to Ms. Faraone quickly. She thinks it was about five inches long and black with some brown on the handle. She thinks it was metal. She did not get a good look at it and doesn't know much about guns. He pulled it straight up into her view and then put it back. He did not point it at her. She believes he did so with his right hand.
[14] At the time she believed the gun was real but afterwards thought perhaps it was not real because it was very small. In her police statement given shortly after the incident, she said she stared at the gun intently and thought it was fake.
[15] Ms. Notarianni did not see what happened nor did she see a gun.
[16] She gave the robber $1,500 in bills. He left at approximately 17:40 without incident.
Steps Taken After the Robbery
[17] At approximately 17:51, Ms. Faraone told Ms. Notarianni that she had been robbed and showed her a note that had been given to her by the robber. Ms. Notarianni took the note. Both she and Ms. Faraone handled it and she then put it in a drawer before police arrived.
Video and Photographic Images of the Robbery
[18] The entire encounter was captured on the bank video surveillance cameras.
[19] Surveillance photographs were taken from the video (Exhibit 9). Neither the video nor the photographs have been altered or enhanced in any way. The photographs accurately depict the robber and the last three photographs in particular, give a clear picture of the robber's face.
[20] The robber was at all times wearing a baseball cap. At times he had his hood up. In the video and accompanying photographs, his physique, hair and facial features are apparent.
3. Photographs of Mr. Sheikh-Hussein taken two months before his arrest (on April 26, 2013)
[21] Police headshots were taken on April 26, 2013, two months before Mr. Sheikh-Hussein's arrest. The features of the man who robbed the bank are distinctive and strikingly similar to those of Mr. Sheikh-Hussein as portrayed in the pictures taken of him two months before his arrest. Those common features include:
a) light to medium brown complexion (depending on the lighting);
b) high cheekbones;
c) strong angular jaw line;
d) thin goatee and moustache;
e) black curly hair tied in a ponytail at the back;
f) straight elevated nose;
g) clear large brown eyes; and
h) lower lip that protrudes slightly.
[22] Moreover, although the tellers were not able to positively identify Mr. Sheikh-Hussein, the features they described were not different from those seen in the video surveillance or still photographs taken from the video footage.
4. Identification of the Accused by Officers Pinheiro and McDonald
[23] Two police officers, from different services, Manuel Pinheiro and James McDonald were each provided a still image from the video of the robber taken during the robbery. Each identified the person in the photograph as Mohamed Sheikh-Hussein. Each of the two officers had had dealings with Mr. Sheikh-Hussein before being asked to identify him from a photograph of the bank robbery.
Officer Pinheiro
[24] Officer Pinheiro had two interactions with Mr. Sheikh-Hussein before trial. They were in 2010 and 2011.
[25] In 2010 Officer Pinheiro interviewed Mr. Sheikh-Hussein for 44 minutes. He testified that he was between 4 to 6 inches and 2 feet away from Mr. Sheikh-Hussein in a small room with one table and two chairs. At that time, Mr. Sheikh-Hussein was 23 years old, five feet eleven inches tall and approximately 145 pounds with short black hair and a thin goatee. He spoke with a slight accent from somewhere in Africa. Officer Pinheiro noticed that when he was not speaking, his lower lip separated from his upper lip. He also noticed that his eyebrows were pointed at the top. He observed that his skin was medium to dark just as he identified it when pointing at Mr. Sheikh-Hussein (who has a medium complexion) in court.
[26] Constable Pinheiro again saw Mr. Sheikh-Hussein in the summer and Fall of 2011 when he testified at the Preliminary Inquiry over several hours.
[27] On July 4, 2013, at 13:40 Constable Pinheiro received information from a crime analyst with the holdup squad. Based on his experience with Mr. Sheikh-Hussein and the photos he was provided of the person involved in the incident, he is 99.9% sure Mr. Sheikh-Hussein is the robber. He is not 100% sure as he has never seen Mr. Sheikh-Hussein in a pony-tail.
[28] Constable Pinheiro did not notice his teeth. Mr. Sheikh-Hussein has distinctive eyebrows that are at a 45 degree angle but the photo of the robbery does not show his eyebrows.
Officer McDonald
[29] Officer McDonald had four prior encounters with Mr. Sheikh-Hussein between 2006 and 2008.
[30] In December 2006, an incident occurred at 15 Larose Avenue (the building where Mr. Sheikh-Hussein lived.) On January 9, 2007, Officer McDonald reviewed the surveillance footage and the card registration of those who had entered the building at or around the time in question. He got booking videos and the only person who resembled the person in the surveillance video was Mr. Sheikh-Hussein. He therefore arrested Mr. Sheikh-Hussein in connection with the December 2006 incident, took him to the station, completed a strip search and had further interactions with Mr. Sheikh-Hussein because he was coughing up blood. Mr. Sheikh-Hussein accepted responsibility for that incident.
[31] On September 28, 2007, he got a bulletin about another matter, was provided with video of the event and recognized the person as Mr. Sheikh-Hussein. He thought it was Mr. Sheikh-Hussein because he recognized the eyebrows, high cheekbones and complexion. He went to get video surveillance from the building and decided he was sure it was Mr. Sheikh-Hussein. He did not deal with Mr. Sheikh-Hussein in person regarding that incident. Mr. Sheikh-Hussein accepted responsibility for that incident.
[32] On October 13, 2008 he went to see Mr. Sheikh-Hussein as he was a person of interest and he was asked to caution him and see if he had anything to say. Mr. Sheikh-Hussein was identified based on a composite drawing that showed the shape of his distinctive eyebrows, his thin face, the narrowness and pointiness of his chin. He went to see him and arrested him ten minutes after his arrival. Mr. Sheikh-Hussein pled guilty to involvement in that incident also.
[33] Finally, he captured a momentary glimpse of Mr. Sheikh-Hussein while he was on general patrol in his vehicle sometime between September and December of 2008 (although there is no record of this interaction in his police notes.)
[34] Officer McDonald noted that Mr. Sheikh-Hussein speaks quickly and has a hint of a Somali accent but he has no difficulty understanding him. He did not notice anything in particular about his teeth.
[35] In 2008 Mr. Sheikh-Hussein was approximately 5 feet nine or ten inches (but could be taller), with a thin build, about 140 to 150 pounds and short hair. He has a fuller face now.
[36] On June 28, 2013, he received a copy of the police bulletin about a bank robbery at Lloyd Manor Road. He recognized Mr. Sheikh-Hussein from the clear image of the person leaving the bank. No photo lineup was done. He looked at a couple of other photographs. This is standard procedure he says.
[37] Officer McDonald testified that he is 100% sure the image is that of Mr. Sheikh-Hussein. He recognized the high cheekbones, thin face, pronounced chin, distinctive eyes, slight facial hair and beard. He looked identical to the person he knew in 2008, except for the pony tail. He saw the police bulletin picture on his blackberry. He later looked at the photo on his computer and this did not change his view.
[38] Officer McDonald gave more evidence about the identity of the robber than he did at the Preliminary Inquiry. He states that is because at the Preliminary Inquiry he did not have his notes but has now had an opportunity to refresh his memory by referring to his police notes to assist him in recalling further detail.
[39] Officer McDonald testified that Mr. Sheikh-Hussein at one time resided in an apartment building located at 15 LaRose Avenue. That apartment building was located approximately 3 kilometres from the bank at 201 Lloyd Manor Road. A map depicting the distance between the two locations was introduced into evidence through Detective Constable McDonald.
5. The Terms of the Probation Order
[40] On April 3, 2012, Mr. Sheikh-Hussein pled guilty to three counts of robbery and was sentenced to a period of 14 months and 2 days in custody to be followed by a 3 year probation order. He was also ordered to keep the peace and be of good behaviour and not possess any weapons or imitation weapons. On the date of this robbery, Mr. Sheikh-Hussein was subject to that order.
6. The Issues
[41] It is agreed that there was a robbery at the CIBC bank on June 27, 2013.
[42] The only person who saw the gun is Ms. Faraone and she is not sure whether the gun was a real or an imitation gun. The Crown therefore concedes that it cannot prove the gun was a real gun.
[43] It is also agreed that the note handed to the teller is a death threat.
[44] The remaining issue to be determined is whether Mohamed Sheikh-Hussein was the robber with the imitation firearm who showed Ms. Faraone a note containing a death threat if money was not provided.
7. The Position of the Parties
[45] The Crown's position is that the CIBC surveillance video and photographs are a sufficient basis upon which to find Mr. Sheikh-Hussein guilty beyond a reasonable doubt of robbery using an imitation firearm. The surveillance video and photos were taken while the robber entered the Bank, approached the counter, was served at the counter, and exited the Bank. The Crown alleges that the photographs are sufficiently clear to satisfy the Court beyond a reasonable doubt that the person depicted in the photographs is Mr. Sheikh-Hussein.
[46] The Crown further submits that this evidence is bolstered by:
a) the evidence of two bank employees, Elissa Faraone and Maria Notarianni, who provided eye witness descriptions of the robber that are consistent with the visual images of the robber in the surveillance video;
b) two police officers, McDonald and Pinheiro, who had each had several encounters with Mr. Sheikh-Hussein before and could immediately identify him from still images taken from the surveillance video and photographs;
c) photographs of Mohamed Sheikh-Hussein taken by police two months before his arrest on these charges that are strikingly similar to images taken from the video of this incident and to the accused at trial; and
d) the geographical location of the robbery.
[47] The note containing the threat was introduced into evidence.
[48] The Crown takes the position that it has proven beyond a reasonable doubt that the weapon shown by the robber was an imitation firearm as defined under section 84 of the Criminal Code.
[49] Defence counsel submits that the surveillance footage and photographs are not sufficiently clear to enable the Court to identify Mr. Sheikh-Hussein as the robber.
[50] The Defence submits that no weight should be placed on the identification evidence given by the two police officers as they are not in a better position than the Court to compare the video surveillance footage of the incident and police photos of Mr. Sheikh-Hussein. Even if they were, the evidence should not be found to be reliable as neither of the officers had seen Mr. Sheikh-Hussein for several years before they purported to positively identify him.
[51] Neither of the two eye witnesses to the incident could positively identify Mr. Sheikh-Hussein.
[52] Finally, the Defence points out that Ms. Faraone noticed crooked teeth while neither of the two police officers who purported to identify Mr. Sheikh-Hussein did. This, the Defence suggests, demonstrates that the Crown cannot prove beyond a reasonable doubt, that Mr Sheikh-Hussein is the robber.
8. The Law
The Burden of Proof
[53] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offence beyond a reasonable doubt.[^1] Something less than absolute certainty but more than probable guilt is required, in order to convict.[^2]
[54] There must be a careful assessment of the evidence before determining whether guilt has been established.[^3] Parts of a witness' evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence.[^4]
[55] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, but to the total body of evidence upon which the Crown relies to prove guilt.
The jury might not be satisfied beyond a reasonable doubt on either the visual identification or the licence number standing alone, but viewed together, the one in relation to the other, those pieces of evidence might satisfy them beyond a reasonable doubt that the respondent was the assailant.[^5]
Identification Evidence
[56] The courts recognize the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses.
It cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim and witnesses. Not every witness can have the fictional James Bond's cool and unflinching ability to act and observe in the face of flying bullets and flashing knives.
The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed, The trier of fact may review the evidence of this silent witness as often as desired, The tape may be stopped and studied at a critical juncture.[^6]
Non-Expert Opinion Evidence
[57] Lay non-expert opinion evidence as to recognition can be provided by a witness at trial provided the lay witness possesses a degree of familiarity with the person recognized.[^7] In order to introduce this evidence, the witness being proposed must have some prior acquaintance with the person purportedly being identified which would render him in a better position than the trier of fact to make an identification from video or photographic images.[^8]
[58] However, the recognition evidence need not point to some unique identifiable feature or idiosyncrasy of the person to be identified. This is because people have vastly different abilities to identify and articulate features of people they know, recognize, and distinguish on a regular basis. Where a witness has little acquaintance with the accused, his or her recognition evidence may be of little value unless the witness can explain the basis in some detail. On the other hand, bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
9. Conclusion
[59] For the reasons that follow, I find Mr. Sheikh-Hussein guilty of robbing the CIBC Bank with an imitation firearm and with uttering a death threat in a note given to the bank teller.
The Video Surveillance and Photos Taken from them
[60] The video surveillance of the incident and photographs derived therefrom depict the robber walking, standing, leaning over the counter, and leaving the bank. At times the video shows the robber at very close range and the robber's face is clearly seen from a number of different angles.
[61] The robber has a medium build, black frizzy hair, light to medium brown skin, distinctive high cheekbones, a straight nose, medium lips, a long thin neck, a strong jawline, thin scruffy facial hair around his jaw. At times, his mouth is slightly ajar and his lower lip protrudes outward.
[62] Mr. Sheikh-Hussein has those same features.
[63] I find that the striking similarity between Mr. Sheikh-Hussein's features and those of the robber in the video surveillance footage is sufficient to satisfy me beyond a reasonable doubt that Mr. Sheikh-Hussein is the robber.
The Lay Opinion Recognition Evidence of Officers McDonald and Pinheiro
(i) Admissibility of the Offiers' Testimony
[64] I accept the lay opinion evidence of Officers McDonald and Pinheiro as I find they possess a sufficient degree of prior familiarity with Mr. Sheikh-Hussein to enable them to be in a better position than the Court to recognize Mr. Sheikh-Hussein from the bank surveillance video and/or the screen captures taken from that footage.
[65] As described above, Officer McDonald's first three encounters with Mr. Sheikh-Hussein were for significant periods and at close range. He is therefore in a better position to assess the similarity between Mr. Sheikh-Hussein and the robber than the Court due to his previous opportunity to view Mr. Sheikh-Hussein in various situations and from close range.
[66] Moreover, Officer McDonald has spent a great deal of time studying Mr. Sheikh-Hussein's features for the very purpose of recognizing him from photographs and on each prior occasion he was correct.
[67] The fact that his prior observations were made five years or more ago does not render them inadmissible given that Mr. Sheikh-Hussein was a young adult whose appearance did not change greatly during that period.
[68] Officer Pinheiro is also in a better position than the Court to identify Mr. Sheikh-Hussein. Officer Pinheiro had an unimpeded opportunity to view, observe and examine Mr. Sheikh-Hussein for 45 minutes from one to two feet away. By contrast, Mr. Sheikh-Hussein was never closer than approximately 5 metres from me for the two and one half days of trial.
(ii) The Probative Value of the Officers' Evidence
[69] Officer McDonald identified Mr. Sheikh-Hussein from the Hold-Up Squad bulletin regarding the bank robbery at 201 Lloyd Manor Road on his Blackberry mobile device. He made that identification despite the fact that he had never seen Mr. Sheikh-Hussein's hair styled in a ponytail although the police RICI photos taken in April, 2013, show that Mr. Sheikh-Hussein had his hair styled in a ponytail at that time.
[70] Moreover, Officer McDonald has accurately recognized Mohamed Sheikh-Hussein on three separate occasions, twice from surveillance video and once from a composite sketch. Officer McDonald was certain that the individual depicted in the surveillance images was Mohamed Sheikh-Hussein.
[71] Officer Pinheiro testified that, when he observed the images contained in the Hold-Up Squad bulletin regarding the bank robbery he was 99% certain it was Mr. Sheikh-Hussein. The only thing that gave him pause was the fact that he believed Mr. Sheikh-Hussein was in custody. Once he confirmed that Mr. Sheikh-Hussein was not in custody, he became 100% certain that the individual depicted in those photographs was the accused.
[72] Moreover, like Officer McDonald, Officer Pinheiro made his identification of Mr. Sheikh-Hussein having never seen him with his hair styled in a ponytail and having no knowledge that Mr. Sheikh-Hussein's hair was styled in a ponytail as recently as April, 2013.
[73] Finally, these two officers, from two completely different police services, whose prior interactions with Mohamed Sheikh-Hussein occurred at completely different times, determined that the individual depicted in the surveillance stills taken from the robbery of the CIBC at 201 Lloyd Manor on June 27, 2013 was Mr. Sheikh-Hussein.
[74] Although the Officers' testimony confirms for me that Mr. Sheikh-Hussein was the robber, I would have come to this conclusion with or without this evidence.
Evidence of the Two Eye Witnesses to the Event
[75] The robber's features as described by the two eye witnesses are consistent with the images on the surveillance video and police photos of Mr. Sheikh-Hussein.
[76] Ms. Faraone gave a description of the individual who committed the robbery. With the exception of the evidence concerning the crooked teeth of the robber, the description provided by Ms. Faraone is consistent with the appearance of Mohamed Sheikh-Hussein, as he appears in the police photos taken on April 26, 2013, two months prior to the robbery, and as he appeared before the Court.
[77] Her description of Mr. Sheikh-Hussein's crooked teeth does not raise a reasonable doubt as to his guilt because there is no evidence as to the state of Mr. Sheikh-Hussein's teeth in June of 2013. Officers McDonald and Pinheiro and Ms. Notarianni all testified that they could not comment one way or another, on the state of Mr. Sheikh-Hussein's teeth. No other witness gave evidence as to the state of Mr. Sheikh-Hussein's teeth in June of 2013.
[78] I note that the absence of evidence concerning the alignment of Mr. Sheikh-Hussein's teeth is different than evidence that is inconsistent with a description of the accused.[^9]
[79] This must also be seen in the context of evidence from both eye witnesses and the two police officers that is in all other respects entirely consistent with the images from the video surveillance of the incident.
[80] While the eye witness testimony confirms Mr. Sheikh-Hussein's general description, I would have come to my conclusion with or without this evidence.
The Fingerprint on the Ripped Paper
[81] Lastly, the unexplained fingerprint does not raise a reasonable doubt because the note was written on a ripped piece of paper of unknown origin and the robber wore gloves throughout as seen on the video.
[82] Taken together, having considered the inherent weakness in identification evidence, I am nonetheless satisfied beyond a reasonable doubt, on the basis of the cumulative evidence set out above, that Mr. Sheikh-Hussein is guilty of robbing Ms. Faraone, an employee of the CIBC bank.
[83] As a result, I find Mohamed Sheikh-Hussein,
a) not guilty of robbing a CIBC Bank while armed with a restricted or prohibited firearm;
b) guilty of the lesser and included offence of using an imitation firearm to commit the indictable offence of robbery (section 85(2) of the Criminal Code);
c) guilty of threatening death (section 264.1(1) of the Criminal Code); and
d) guilty of failing to comply with two probation orders (section 733.1(1) of the Criminal Code).
Thorburn J.
Released: April 16, 2015
CITATION: R. v. Sheikh-Hussein, 2015 ONSC 2888
COURT FILE NO.: CR-14-50000345-0000
DATE: 20150416
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
MOHAMED SHEIKH-HUSSEIN
Defence
REASONS FOR JUDGMENT
Thorburn J.
Released: April 16, 2015
[^1]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 [^2]: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para 242. [^3]: Regina v. S.W., (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.) at 517 (leave to appeal to S.C.C. refused [1994] 2 S.C.R.); Regina v. Oziel, [1997] O.J. No. 1185 (C.A.) at para. 8, 9; Regina v. Norman, (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4. [^4]: Regina v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 44. [^5]: R. v. Bouvier [1984] O.J. No 11 (Ont. C.A.) at pages 5 and 11, per Martin J.A. for the Court. In R. v. Gagnon 2000 CanLII 16863 (ON CA), [2000] O.J. No. 3410, (Ont. C.A.) at page 17, the Court held that “although a piece of evidence viewed in isolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitute corroboration.” [^6]: R. v. Nikolovski 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at paragraphs 19 to 21, Cory J. for the majority. [^7]: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] S.C.J. No. 90. [^8]: R. v. Berhe [2012] O.J. No. 5029 at para. 23. [^9]: R. v. Alexander, [2012] O.J. No. 4972 (S.C.J.) at para. 25.