CITATION: R. v. Ibrahim, 2016 ONSC 897
COURT FILE NO.: 13-70000774
DATE: 20160304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADIB IBRAHIM
Defendant
Hank Goody and Derek Ishak, for the Crown
Peter Thorning and Richard Diniz, for the Defendant
HEARD: October 23, 2015
APPLICATION FOR JURY INSTRUCTION
RE CONSCIOUSNESS OF INNOCENCE
RULING
clark j.
INTRODUCTION
[1] In the late afternoon of May 14, 2012, while operating his taxi on King St. E. in Toronto, the accused, Adib Ibrahim, struck and killed Ralph Bissonette, who was riding a skateboard. Members of the Toronto Police Service arrived to investigate and, shortly after the incident, an officer arrested Mr. Ibrahim for dangerous driving. That same evening, while Mr. Ibrahim was still in custody, the charge was upgraded to second degree murder.
[2] Late in the trial, Mr. Thorning asked me to include in my charge to the jury an instruction on consciousness of innocence. I declined to give the instruction sought. I indicated that I would give reasons for that decision; these are those reasons.
THE EVIDENCE
[3] The proposed instruction pertained to three separate pieces of evidence.
[4] The first is the fact that the accused called 911 from the scene of the collision.
[5] The second is the fact that, when being booked into the station (at a time before he knew that Mr. Bissonette had died), Mr. Ibrahim asked about Mr. Bissonette’s medical condition.
[6] The third consists of the following portion of an interview that D/Sgt. Terry Browne, an investigator from the Toronto Police Homicide Squad, conducted with Mr. Ibrahim in the early morning hours of May 15, 2012:
Browne: Well Mister Ibrahim, we certainly want to make sure we get this right as well. And this is ---- This is why we’re speaking with you right now. Ahm clearly officer Whittemore and I were not there. The most we have right now is this video that we’ve --- that we’ve now obtained, which I’ve described to your [sic] what we can see on the video. There is some suggestion by a couple of witness [sic] that at some point ah the young man who’s now deceased may have banged on your----the hood of your vehicle. Do you recall that happening at any point, banging on your vehicle?
Mr. Ibrahim: No. No. I think you guys have car so you can check the car.
Browne: And we do. And--- and in all fairness we--- we do have your car. We’ve impounded it. We’re gonna [sic] get a Search Warrant to Ahm--- to certainly have a look at that and ah gather evidence forensically.
DISCUSSION
General Principles
[7] In R. v. S.C.B., 1997 6319 (ON CA), [1997] O.J. NO. 4183, 119 C.C.C. (3d) (C.A.), at paras. 33 and 34, the Court held:
33 The admissibility of after-the-fact conduct by an accused to support an inference that the accused did not commit the crime alleged should be approached on a principled basis. If the evidence is relevant, its probative value is not substantially outweighed by its prejudicial effect and it is not excluded by some policy-driven exclusionary rule, the evidence should be received when proffered by the defence: R. v. Watson (1996), 1996 4008 (ON CA), 108 C.C.C. (3d) 310 at 327 (Ont. C.A.).
34 After-the-fact conduct by an accused which is reasonably capable of supporting an inference adverse to the accused is admissible as long as its probative value outweighs its prejudicial effect and there is no exclusionary rule requiring the exclusion of the evidence: R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.). We see no reason why after-the-fact conduct, which is reasonably capable of supporting an inference favourable to the accused, should not also be received unless its probative value is substantially outweighed by its potential prejudicial effect. We are unaware of any evidentiary rule or theory of relevance which would admit evidence that an accused ran away when confronted by the police as evidence of guilt, but would exclude evidence that an accused effectively turned himself over to the police for whatever investigative purposes they desired, as evidence supporting an inference that the accused did not commit the crime.
[8] In R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, Major J. noted that where the “evidence cannot be said to be irrelevant to the issue in dispute, it might still be withdrawn from the jury by the trial judge on the basis that it is more prejudicial than probative.”
[9] In R. v. McFarlane, [2012] O.J. No. 2374, 2012 ONCA 355, the court was considering an argument that the trial judge had not instructed the jury that the evidence of an unsavoury witness could not be confirmed by independent evidence equally consistent with the witness’ evidence being true or false. At para. 14, the Court said:
14 The variation in the argument made during oral submissions requires a further brief comment. If a jury decides that evidence left with it as potentially confirmatory of a Vetrovec witness is equally consistent with the truth or the falsity of the Vetrovec evidence, then that evidence, as a matter of logic, cannot confirm the credibility of the Vetrovec witness. A trial judge may choose to give this instruction to a jury. We would not, however, make it mandatory. It is difficult to see how a jury could use evidence that it had found to be equally consistent with truth as with falsity to confirm the credibility of the witness. How could that evidence increase the jury's confidence that the Vetrovec witness was telling the truth? Articulation of the self-evident will usually do no harm and can, on occasion, help. We would not, however, go so far as to say that the failure to articulate the self-evident constitutes reversible error.
Although McFarlane concerned evidence of a statement made by the appellant that was said to be consistent with guilt, the principle stated above is equally apposite where the conduct is said to point toward innocence. To my mind, if the after the fact conduct in question is equally consistent with guilt or innocence, it cannot point to innocence so as to require the proposed instruction.
The Principles Applied
[10] To begin this discussion, I did not prevent defence counsel from calling the evidence in question. Nor did I forbid Mr. Thorning from suggesting in his closing address to the jury that these facts constituted some evidence of consciousness of innocence. Indeed, I went so far as to say that I would, in my recapitulation of the parties’ respective theories, refer to their positions on what, if anything, was to be made of this evidence. What I refused to do was to give, as part of my charge, an instruction to the effect that the evidence constituted some evidence of consciousness of innocence.
[11] Turning, then, to the question of whether I should have given the instruction sought, I will deal first with Mr. Ibrahim’s call to 911.
[12] Whatever Mr. Ibrahim’s state of mind at the time he hit Mr. Bissonette, i.e.: whether he did so by accident or on purpose, inasmuch as this incident took place in front of a great many onlookers and he was driving a marked taxi, it must have been obvious to him that, had he been inclined to flee, that he would not have been able to escape undetected.
[13] Further, it must have been obvious to Mr. Ibrahim that Mr. Bissonette was gravely injured, such that it would be in his best interests to summon emergency personnel forthwith in order to ensure that Mr. Bissonette got the medical attention he needed, thereby minimizing, so far as possible, any lasting harm to Mr. Bissonette, while at the same time minimizing the legal jeopardy he, Mr. Ibrahim, must have realized he would be facing. Thus, in my opinion, Mr. Ibrahim’s call to 911 is equally consistent with him having intentionally run Mr. Bissonette down, as the Crown alleges, or having hit him by accident, as he contends. As such, it has no probative value in terms of supporting an inference that Mr. Ibrahim did not have the state of mind alleged by the Crown.
[14] I turn next to the fact that, when being booked into the station (at a time before he had been told that Mr. Bissonette had died), Mr. Ibrahim asked about Mr. Bissonette’s medical condition. On the one hand, he could have been genuinely concerned for Mr. Bissonette. On the other hand, once arrested, surely it would have been even more apparent to Mr. Ibrahim than when he made the 911 call that he was in a precarious legal position and just as apparent that the better Mr. Bissonette’s condition was, the less precarious his position would be. Thus, once again, I conclude that Mr. Ibrahim’s inquiry was equally consistent with concern for the victim, on the one hand, and self-interest, on the other. As such, it did not warrant the instruction sought.
[15] That leaves for consideration Mr. Ibrahim’s suggestion during the interview that the police check his car for the absence of any evidence that would tend to show that Mr. Bissonette had touched his car, as he had been led to believe one or more witnesses had told the police.
[16] In R. v. Alli, [2012] O.J. No. 419, 2012 ONCJ 49, Pacciocco J. considered evidence of a similar offer to be capable of constituting evidence of innocence:
33 Mr. May emphasized that in considering the evidence of Mr. Alli, indeed, in considering the exculpatory version of events offered by the defence, I should give great weight to the fact that when confronted with the allegation he was street racing at the scene Mr. Alli not only denied that he had been racing but asked Cst. Shannon Woodward whether there would be any way to check the computer "chip" in the Mustang to confirm that he was not. Although no objection was made to this evidence, I do not find Mr. Alli's denial of guilt to be an admissible prior consistent statement declaring innocence under the rule in R. v. Edgar (2010), 2010 ONCA 529, 101 O.R. (3d) 161 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 466. By the time Mr. Alli denied speeding he had already concocted a story to tell the police and lied to them about being the driver. The denial of guilt was not spontaneous enough to warrant admissibility under the Edgar principles: R. v. Bhadura, 2011 ONCA 266, [2011] O.J. No. 1541 (C.A.). I do accept, however, that his invitation to check the computer chip is admissible in evidence as circumstantial evidence offered to support an inference of "consciousness of innocence": R. v. S.C.B, 1997 6319 (ON CA), [1997] O.J. No. 4183, at paras. 33 (C.A.). Asking for his on-board computer to be checked for a speed reading is consistent with innocence and I have considered it, along with his denial of guilt, on that basis.
34 Of course, Mr. Alli's challenge to the officers to check his computer is not definitive evidence that Mr. Alli was not speeding and was truthful in his testimony. Such an offer could signal a belief in innocence, accurate or mistaken, or it could be made simply by a person aware of his own guilt in order to create the impression of innocence in the hope that the chip would never be analyzed, or even in the knowledge that analysis is impossible. Evidence of an offer by the accused to submit to forensic testing, even to submit bodily samples for testing, is therefore circumstantial evidence of potential innocence, but its significance must be weighed in the context of all other evidence. I have done so and do not, in the circumstances of this case, find this evidence to be compelling enough to overcome the serious difficulties posed by Mr. Alli's account of what transpired. Mr Alli's offer does not, in my opinion, salvage his credibility. (Emphasis added.)
[17] On the other hand, in R. v. Chisholm, [1997] O.J. No. 1818 (S.C.J.), a sexual assault case in which the identity of the perpetrator of the assault was in issue, Hill J. rejected as evidence of a consciousness of innocence the fact that the accused had offered to give a biological sample. He held that evidence of consciousness of innocence was more likely to be admitted where it was necessary to counterbalance evidence said to reflect a consciousness of guilt. In that vein, it is important to recognize that the Crown in this case did not adduce any evidence that it contended demonstrated a consciousness of guilt.
[18] Similarly, in S.C.B., where the appellant had offered to take a polygraph test, the court noted, at para. 30, that “[a]n offer to take a test is hardly an unequivocal act. Its probative value depends on a number of factors. What did the accused know about the accuracy of the test? Did the accused believe he could ‘fool’ the machine? What advice did the accused have before making the offer? Was the offer a bona fide one?”
[19] In this case, Mr. Ibrahim knew that the police had his car and, doubtless, he would have realized that they were in a position to check it for any forensic evidence. The evidence of civilian witnesses was to the effect that the deceased had been hanging on to the vehicle as Mr. Ibrahim drove westbound on King St. E. and, according to at least one witness, that he struck the taxi several times with his hand. There was no damage to the taxi and Mr. Ibrahim would have been able to see that when he got out of his vehicle after the collision. In all the circumstances, then, it is not clear to me that the average person in Mr. Ibrahim’s position would likely have expected that, merely by hanging onto the vehicle and/or by striking it with his hand, the deceased would have left fingerprint impressions or any residue of bodily substances sufficient from which a DNA profile might be derived.
[20] Mr. Ibrahim did not offer the police anything that they did not already have the ability to check for themselves. Moreover, he knew that; thus, there really was no offer, as such. Further, I am not satisfied that he would have realized that there was anything to be gleaned from examining the taxi anyway. Mr. Ibrahim testified over the course of several days. His examination-in-chief lasted more than a day. He never mentioned at any time in his evidence what his state of mind was as it related to the possibility of forensic evidence being present on his taxi. That said, it would be speculative to suppose that he thought that, had Mr. Bissonette touched his car, there would likely be trace evidence on the vehicle. That being the case, Mr. Ibrahim’s remark did not warrant an instruction on consciousness of innocence.
RESULT
[21] In the result, I declined to give the instruction defence counsel sought.
R. A. Clark J.
Released: March 4, 2016
CITATION: R. v. Ibrahim, 2016 ONSC 897
COURT FILE NO.: 13-70000774
DATE: 20160304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADIB IBRAHIM
Defendant
REASONS FOR DECISION
R. A. CLARK J.
Released: March 4, 2016