CITATION: R. v. Abdoulkader, 2016 ONSC 563
COURT FILE NO.: CR-15-730-00
DATE: 20160122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. J. Goulin, for the Crown
- and -
NASSER ABDOULKADER
Mr. J. Giuliana, for the defence
HEARD: November 24, 25, 26 and December 7, 2015
REASONS FOR JUDGMENT
F. Dawson J.
[1] Nasser Abdoulkader has elected trial by judge alone on an indictment charging him with nine offences in relation to an alleged attempt to rob a Garda Security armoured truck. The accused was previously severed from his co-accused for reasons I have not been made privy to. The trial of the co-accused proceeded in January 2015 before a jury.
[2] When the matter came before me for trial on November 24, 2015 the Crown agreed to stay count one which charges attempted robbery. The accused then entered a plea of guilty to count two which alleges that he, together with his older brother Jabourou Abdoulkader and Daniel Antwi, conspired to commit robbery of the armoured truck. That conspiracy is alleged to have occurred over a 25 day period ending on April 23, 2013.
[3] The case proceeded to trial on the remaining counts which charge the accused with a variety of firearms offences related to the conspiracy to rob the armoured truck. The Crown filed an agreed statement of facts and called one police officer to provide general evidence about the investigation. That officer was not cross-examined. The Crown then closed its case.
[4] Nasser Abdoulkader then testified that he was unaware that any firearms would be involved in what he understood was to occur. He denied that he was in possession of any firearm. He said that his brother advised him that this was an “inside job”. According to the accused, his brother told him that Daniel Antwi had an arrangement with two Garda employees who were working on the armoured truck. They would turn over the money. Consequently, there would be no need for firearms. The accused maintained that he would not have agreed to participate if the plan included the use of firearms.
[5] After this testimony was given and in the midst of submissions I struck the plea of guilty to count two on the basis that if the crime was an inside job there was not, by definition, a conspiracy to commit a robbery. As conspiracy to commit robbery requires both an agreement and the intent to agree to commit a robbery the accused’s testimony was inconsistent with an admission of the essential elements of count two.
[6] Counsel were trying to streamline the proceedings by approaching the case as they did. I appreciate their efforts in that regard but the plea of guilty on count two could not stand. Crown counsel did not anticipate the accused’s evidence that this was an inside job. The trial was adjourned so Crown counsel could marshal evidence in relation to count two and to respond to the accused’s testimony that this was an inside job.
[7] When the court reconvened on December 7, 2015 counsel for the accused advised the court that after a further review of the Crown disclosure the accused agreed that the robbery was not in fact an inside job. However, the accused maintained his position that he honestly believed that it was an inside job based on what his brother told him. He maintained that he only agreed to participate when he was assured that no firearms or violence would be involved.
[8] Counsel requested that I proceed to decide counts two to nine on the basis of the agreed facts and the evidence before me. Full submissions were then made by counsel on both sides.
The Evidence In Greater Detail
The Prosecution Case
[9] The agreed facts indicate that the police were aware that Daniel Antwi had been watching a Garda Security armoured truck on its route for three weeks prior to April 23, 2013. Jabourou Abdoulkader, Daniel Antwi and an unidentified third party had also been seen hiding in a garbage enclosure outside a Bank of Montreal (BMO) at 985 Dundas Street East in Mississauga on the evening of April 2, 2013. The truck usually stopped at that location. This has the appearance of a “dry run”.
[10] The agreed statement of facts specifies that on April 22, 2013 Jabourou Abdoulkader offered the accused an opportunity to join in a criminal venture he and Daniel Antwi were planning. The accused testified that when he asked what that venture was he was told it was the robbery of an armoured truck. According to the accused, he immediately told his brother he would not become involved because he did not want anyone to get hurt. The accused testified that he told his brother he did not want to assist in anything that required the use of firearms.
[11] According to the accused, it was at that point that his brother told him it would be an inside job, that they were not going to use guns and that no one would get hurt. His brother told him that Daniel Antwi knew two of the guards. His brother said the accused would be paid $1,000 for assisting. His job would be to stay inside the garbage enclosure near the bank. Bags of money from the armoured truck would be brought to him there. He was to put those bags into a bigger bag and carry the money out through a gap in the fence. The accused repeated that he only agreed to participate because he believed it was to be a staged event, not a real robbery and that no firearms would be involved.
[12] The agreed statement of facts indicates that the police had Daniel Antwi under surveillance on April 22, 2013. They saw the accused and his brother arrive at a parking lot near an L.A. Fitness gym in Mississauga. The two were observed meeting with Daniel Antwi for about half an hour.
[13] On April 23, 2013 the police followed Daniel Antwi who was driving a rented Jeep Compass. Jabourou Abdoulkader was in the front passenger seat. They picked the accused up at his home. They drove to Antwi’s condominium where they remained for approximately one hour and 20 minutes. They then drove together in the rented vehicle to the area of the BMO previously referred to. The Jeep was parked in a housing complex near the bank. Daniel Antwi opened the back of the vehicle and Jabourou took out a large black duffle bag. It is agreed the luggage area of the Jeep was open to the interior of the vehicle.
[14] The three walked to the garbage enclosure near the doors to the BMO. Antwi walked there by means of a separate route and Jabourou and the accused walked together. Jabourou carried the large black duffel bag. The three met at a fence behind the enclosure. The black bag was handed over the fence to Daniel Antwi. Antwi took the bag and entered the garbage enclosure. Jabourou and the accused then hopped the fence and entered the enclosure. The three waited for the armoured truck for some 90 minutes.
[15] The truck did not arrive because it had been diverted by the police. It is an agreed fact that a full investigation has cleared the Garda employees in the truck of any complicity.
[16] At 12:21 a.m. on April 24, 2013 the three men left the garbage enclosure and returned to the Jeep Compass. Antwi put the black bag into the back of the vehicle. All three got into the vehicle and drove away.
[17] The police kept the Jeep under constant surveillance. The vehicle was stopped by members of the tactical unit. The accused was in the rear passenger seat behind the driver. All three were arrested at gunpoint for conspiracy to commit robbery. The vehicle was then searched incident to the arrests.
[18] A large black suitcase was found in the luggage area of the Jeep. Inside the suitcase was a large black hockey bag with “Easton” written on it. Within the Easton hockey bag the police found a loaded semi-automatic handgun, a loaded revolver and an assault style rifle, as well as a magazine for the rifle loaded with high velocity ammunition. The bag also contained a bullet proof vest, three men’s black jackets (two extra-large and one large) and another black hockey bag with “Aviation” written on it.
[19] A black balaclava was found in the back seat behind the driver’s seat. Another was found in the area of the front passenger’s seat. A third balaclava was found in Daniel Antwi’s back pocket. Antwi was the driver. Each of the three men was found in possession of black gloves. The accused also had sunglasses in his jacket pocket. None of the men were carrying any form of identification.
[20] It is agreed that the semi-automatic handgun is a prohibited firearm, that the revolver is a restricted firearm and that the ammunition in the rifle magazine was capable of piercing the body armour of the Garda employees. It is agreed that each of the firearms had ammunition which could be discharged in that firearm.
The Evidence of the Accused
[21] As I have mentioned, the accused said his brother first raised this matter with him on April 22, 2013. The robbery was to take place the next day. The accused maintained in his evidence that he was told that his role was to put money into a hockey bag and to carry the bag. He said he was not told anything else. He testified that at the half hour meeting with his brother and Antwi on April 22, 2013 he was simply introduced to Antwi. No details of the plan were discussed.
[22] The accused testified that he never saw any guns and never heard anything about how the crime was to unfold. He said there was no discussion in the car on April 23 and no discussion at Antwi’s condo. During the hour and 20 minutes they were at the condo the accused said he did not overhear any conversation between Antwi and his brother about what was to take place. The accused did say that while in the Jeep he was given gloves and told to wear them while putting the money in the hockey bag.
[23] The accused testified that while at Antwi’s condo he spent most of his time on the balcony smoking marijuana and cooking steak. He testified that Antwi took a separate route from the Jeep to the BMO because the three did not want to attract attention by “walking while black”. He maintained that although he was to be the “bag man” for the theft he never touched the bag his brother carried at any time. He testified that he was not curious about the bag and did not touch it or look into it during the 90 minutes spent in the garbage enclosure. He also maintained there was no other discussion of a plan or about what would happen when the truck arrived. He said he was not curious and did not ask. He said he was smoking weed while in the garbage enclosure. He said that because of that he became paranoid. Although he had not previously asked any questions or asserted himself, his paranoid state prompted him to insist on leaving when the armoured truck did not arrive.
[24] On the way back to the Jeep the accused said he fell behind as he had to stop to urinate. He recalled this because at that time he found a five dollar bill. He said that as a result he did not overhear any conversation on the way back to the vehicle and never touched the black bag. He said there was little conversation in the vehicle about what had happened beyond reference to “the next time”.
[25] The accused acknowledged that a balaclava was found in the back seat of the car near where he had been sitting. However, he maintained that he had never seen it.
[26] The accused also testified that he did not want to say “no” to his brother and that he did not want to ask too many questions. That was because he believed his brother was making a good deal of money from frauds. He said his brother would not let him in on that action if he caused difficulty on this occasion.
Analysis
[27] This case turns on the credibility of the accused. Accordingly, I instruct myself in accordance with R v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I accept the accused’s evidence I must find him not guilty. If I do not accept his evidence I must nonetheless find him not guilty if his evidence, either alone or in the context of the other evidence, raises a reasonable doubt in my mind as to his guilt. Even if his evidence does not raise a reasonable doubt, I may convict him only if I am satisfied on the basis of the evidence I do accept that his guilt has been established beyond a reasonable doubt.
[28] After considering all of the evidence I have come to the conclusion that I reject the evidence of the accused as unbelievable. I find that his evidence is untruthful. Consequently, his evidence is not capable of raising a reasonable doubt. I come to that conclusion for the following reasons viewed in combination.
[29] First, it is agreed this was not a staged robbery. It was known by all that the two guards in the truck were armed and would be wearing bullet proof vests. This means that Daniel Antwi and Jabourou Abdoulkader were planning a real armoured truck robbery. As the accused acknowledged in cross-examination, this was a major crime. Common sense leads to the conclusion that the plan hatched by the other two participants must have been to take the guards by surprise by emerging from the garbage enclosure when one or more of the guards were out of the truck and in the process of servicing the bank. Firearms would be a virtual necessity for the success of any such plan given that the guards were armed. Superiority of numbers would also assist the perpetrators.
[30] Masks, other disguises and gloves would also almost certainly be required to carry out such a robbery. Those who would confront the guards would need to be well prepared, to have a plan and they would need to have an opportunity to put on their masks and disguises. They would also need to ready their weapons before surprising the guards.
[31] It is agreed that Daniel Antwi had been observed following the route of the armoured car. Antwi, Jabourou Abdoulkader and a third unidentified man had also been seen waiting in the garbage enclosure on a previous night. There is no evidence the third man was the accused and it is an agreed fact that the accused was not invited to participate until April 22, 2013. This eliminates from consideration any inference that the accused had been in the garbage enclosure on the previous occasion. However, these facts demonstrate that this robbery had been carefully planned and rehearsed by the other two men. Further support for that comes from the fact that the vehicle used was rented and the garbage enclosure was an excellent hiding spot.
[32] Against this background I find the accused’s testimony that no one told him anything beyond that his role was to put money in a bag with gloves on and take it through a hole in the fence to be unbelievable. People who had carefully planned other aspects of a major crime such as this would surely not want such a weak link or potential vulnerability in their plan. It makes no sense to me that the accused would attend a one-half hour meeting on April 22, 2013 with the other two, ride in a car with them and spend an hour and 20 minutes with them at Antwi’s condo shortly before the robbery without being told more about what the plan was. It is equally unlikely that he would not have overheard conversation between the other two about how the robbery would be executed.
[33] I also find it to be beyond coincidence that the accused, like the other two, had no identification in his possession at the time of his arrest. The accused denied receiving any instruction beyond being told to put gloves on and to put the bags of money that would be brought to him into another bag. Yet, like the other two, he had no identification on his person.
[34] It is also a strange coincidence that, if the accused’s account is true, there just happened to be three guns, three jackets, three balaclavas, and three pairs of gloves located by the police. One of the balaclavas was found near where the accused was sitting in the vehicle. The two other men are described as being larger than the accused. The jackets were two in extra-large size and one in a large size. This also fits in with the accused as a more active participant. I observe that if the accused’s role was to stay in the garbage enclosure he would not need a matching disguise.
[35] When the large Easton hockey bag was removed from the suitcase in the courtroom during the trial it held the three firearms and the other items found in the bag by the police following the arrests. It was obvious that the bag held something of significant weight. Based on my observations it would be obvious to anyone seeing this bag carried that there were items of some weight inside. The accused initially testified he did not see that. He later said his brother carried the bag with ease. I do not accept that in circumstances where the bag was carried in his presence and passed over a fence with the firearms and other items inside that the accused was unaware that there were heavy objects in the bag.
[36] I find it to be completely unbelievable that the accused, who says his role was to stuff that bag, did not handle or touch the bag at any time, including during the 90 minutes waiting in the garbage enclosure. I observe that on the way to the enclosure the accused was alone with his brother who was carrying the bag. Antwi was not there. It is inconsistent with common sense that the accused would not have made some inquiries if he did not know what was in the bag.
[37] The accused also said that he was nervous and looking around on the way to the garbage enclosure. His brother told him to keep a lookout. One wonders why he would be looking around if he thought the bag was empty and did not contain anything that was potentially incriminating. What reason would there be to keep a lookout?
[38] The accused acknowledged that he had been told that Antwi knew two guards working on the truck. He testified, however, that he did not know whether there would be more than two guards on the truck. He acknowledged that any other guards would also be armed. He testified that he knew there would be cameras on the truck or at the bank. The accused could provide no satisfactory explanation for why in these circumstances he would believe that the crime contemplated could be successfully executed without anyone being armed with a firearm. There is no burden on the accused. However, common sense undermines the credibility of the accused’s testimony in these circumstances. If he contemplated the potential presence of one or more guards who were not part of the “inside job” then he would know that some force or threat of force would be needed to overcome any resistance by guards who were not in on the fix. Given that there was an armoured truck with armed guards a reasonable person would contemplate that firearms would likely be necessary. I make this comment in the context of assessing the credibility of the accused’s evidence only and not in reference to proof of the mens rea of any of the offences.
[39] I also note that the accused acknowledged that his brother and Antwi had balaclavas rolled up on their heads as they waited in the garbage enclosure. Clearly, the time when the armoured truck was expected had come and gone by the time the men left to return to the car. It makes no sense that the other two would have put on their balaclavas inside the enclosure but not have readied their firearms in preparation for confronting the armed guards in what is now agreed was to be a real robbery.
[40] I also place some but not heavy reliance on the fact that the accused chose to lie to the police rather than to remain silent during a video recorded interview conducted by the police following his arrest. The accused insisted on telling the court that his lawyer told him not to speak to the police despite being advised that communications with his counsel were privileged. Clearly he knew of his right to remain silent. When cross-examined about the lies he told to the police he maintained that he lied to the police because they would not stop asking him questions despite the fact that he did not want to talk to them. I should add that the statement was admitted to be voluntary. In the portion of the statement that he was cross-examined on the accused told the police that he had been at his “bitch’s house” and was picked up there by Daniel Antwi. He told the interviewing officer that he had no idea why the police stopped the vehicle.
[41] I would point out that telling the police officer lies, which the officer was obviously not accepting, was not the way to get the officer to stop asking questions. Consequently, the explanation the accused gave for lying to the police does not make sense. I do recognize, however, that lying to the police is something that may just as likely have occurred if the accused thought he was involved in a theft (an inside job) as a robbery. Therefore, I do not use this as evidence of after-the-fact conduct going to guilt but only as a factor in assessing the general credibility of the accused. His explanation about why he lied to the police does not make sense.
[42] The accused’s whole story about being brought in on an inside job lacks credibility for other reasons as well. Why would the other two bring in the accused on an inside job? They would not need his assistance if the guards were going to co-operate and turn over the money. Yet they would have to give the accused a cut for his assistance. This makes it unlikely that the offer the accused describes would have been made to him as he claims. In addition, this would have been obvious to the accused, which undermines his claim that he had no idea firearms were to be involved.
[43] At the end of the day I simply do not believe the evidence of the accused. I conclude he is not telling the truth. Too many facets of his evidence are out of line with common sense and normal human experience.
[44] What I am left with is evidence that three men were participating in a real robbery of an armoured truck. It was not an inside job. They were found in a car with two loaded handguns and a rifle with readily accessible ammunition, three balaclavas, three pairs of gloves and three black jackets of an appropriate size to fit each of them. They were observed using a rented vehicle, had no identification, and waited in a garbage enclosure in the dark at a location where an armoured truck, which had previously been followed by one of them, was scheduled to arrive and make a delivery. Based on the photographs the garbage enclosure was ideally suited as a hiding spot from which to surprise the guards once they got out of the truck.
[45] I find that this evidence satisfies me beyond a reasonable doubt that the accused was in possession of the firearms pursuant to both ss. 4(3)(a)(ii) and 4(3)(b) of the Criminal Code. I conclude beyond a reasonable doubt that the accused and the other two men were involved in a joint criminal enterprise to rob the armoured truck together and to assist each other therein with full knowledge that each of them would be armed with a firearm.
[46] It follows that I am satisfied beyond a reasonable doubt that the accused is guilty of conspiracy to commit robbery as particularized in count two. I am satisfied beyond a reasonable doubt that he agreed to participate in the robbery and that he intended to do so. A finding of guilt is registered on count two.
[47] I turn now to counts three to nine. Counts three, four and five allege the accused was an occupant of a motor vehicle knowing that the three firearms in question were in the vehicle. It follows from what I have said that these offences have been established beyond a reasonable doubt.
[48] It is an agreed fact that the accused did not have licences for the firearms in question. That fact combined with my other findings leads to convictions on counts six, seven and eight.
[49] Count nine charges the accused with altering a serial number on a handgun contrary to s. 108(1)(a) of the Criminal Code. Sgt. David Seward testified that the serial number had been scratched off the semi-automatic handgun. However, I observe that there is no evidence the accused did that and the presumption in s. 108(4) does not assist in proving an offence charged under s. 108(1)(a) in the circumstances of this case. The issue is not possession with knowledge of an obliterated serial number but whether it has been proven that the accused altered the serial number. That has not been proven and there will be a finding of not guilty on count nine.
[50] Count number one is stayed at the request of the Crown.
[51] In summary, findings of guilt are made on counts two to eight inclusive.
F. Dawson J.
Released: January 22, 2016
CITATION: R. v. Abdoulkader, 2016 ONSC 563
COURT FILE NO.: CR-15-730-00
DATE: 20160122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
NASSER ABDOULKADER
REASONS FOR JUDGMENT
Justice F. Dawson
Released: January 22, 2016