R v Ali 2016 SCJ mini 26

Court File No. 14-336903

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

YAQOUB ALI

REASONS FOR JUDGMENT

DELIVERED BY THE HONOURABLE JUSTICE R. MARANGER

on June 16, 2016, at OTTAWA, Ontario

APPEARANCES:

P. Napier Counsel for the Crown

L.S. Russomanno C. Moore Counsel for Yaqoub Ali

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

REASONS FOR JUDGMENT

1

Transcript Ordered: June 20, 2016 Transcript Completed: June 22, 2016 Approved by Maranger J.: July 13, 2016 Ordering Party Notified: July 14, 2016

THURSDAY, JUNE 16, 2016

REASONS FOR JUDGMENT

MARANGER J. (Orally):

Introduction

1On December 26, 2014 (Boxing Day), one of the busiest shopping days of the year, a shooting took place at the Tanger Outlets mall situated on the west side of the City of Ottawa.

2It took place outside of the Ralph Lauren/Polo store at approximately 3:35 p.m., in the presence of several shoppers including families with young children.

3The victim was Adel Al-Enzi. He was shot in the foot, however the bullet mainly damaged his running shoe, and he did not sustain a serious injury. He chose not to cooperate with the police and would not divulge the identity of the person who shot him.

4The accused before the court stands charged with 10 different counts relating to this shooting.

5The crux of this case was whether the Crown has proven beyond a reasonable doubt that the accused Yaqoub Ali was in fact the shooter. Depending on the answer to that question, he is either not guilty or guilty of the charges before the court.

6Respecting count 9, it was admitted that the accused was subject to a s. 109 prohibition order.

7As the trial unfolded and especially in light of evidence from a surveillance video, the decision came down to two questions: Has the Crown proven beyond a reasonable doubt that the man wearing a baseball hat and a Superman sweater was the shooter? If so, has the Crown also proven beyond a reasonable doubt that this man was Yaqoub Ali?

8In any criminal proceeding in Canada, the following core principles apply: an accused person is presumed to be innocent, that the burden of proving guilt falls upon the Crown (in other words an accused person does not have to prove anything, and does not need to testify). Furthermore, the Crown must prove the case against an accused beyond a reasonable doubt.

9To be convinced beyond a reasonable doubt means: to be certain, to be sure that an offence has been made out before convicting someone of the offence. And in circumstances where the evidence manages to convince the decision-maker that an offence probably or likely occurred requires a finding of not guilty.

10These core principles are non-negotiable and must be applied by a trial judge in a criminal proceeding without fail.

Evidence and findings of fact

11The evidence presented by the Crown consisted of the following categories of evidence: surveillance video evidence from the Ralph Lauren/Polo store, eyewitness testimony from civilians, evidence from first responder police officers and paramedics, expert evidence regarding the gun and bullet, cell phone records of calls and text messages exchanged between the accused and Al-Enzi, a photo book of the area where the shooting took place, a photo book of photographs taken from the accused's cell phone, and the testimony of the investigating officer in charge of this case.

12I now provide a brief summary of the evidence with an emphasis on what I considered to be essential in arriving at a decision.

Surveillance evidence

13The surveillance evidence filed as Exhibit 1 at trial showed video footage from three cameras numbered 5, 12 and 19 located inside the Ralph Lauren/Polo store.

14The identities of certain people seen in the surveillance video and relevant to this case were established. The identities in the video of the victim, Adel Al-Enzi, and two persons seen with him, Abdulaziz Al-Enzi and Abraham Bihi, as well as three of the eyewitnesses, Sharon Wu, Mona Hamilton and Adam Kilmartin, were either admitted or proven at trial.

15The identity of a man in a burgundy toque was never determined.

16The identity of the person alleged to be accused in the surveillance video was contested. This individual was a black male wearing a black baseball cap with a diamond shape emblem coloured white and red, a light blue hoodie sweater with a Superman logo and a dark-coloured vest. He was referred to as Superman at various times during the trial, and for convenience I will refer to him in that manner going forward.

17The surveillance videos allow for the following material findings of fact:

• On December 26, 2014, Adel Al-Enzi together with Abraham Bihi and Abdulaziz Al-Enzi are captured on surveillance video shopping in the Ralph Lauren/Polo store.
• The video also captures Superman who is first seen with a black male wearing a burgundy toque entering the store from 3:28:05 to 3:28:14.
• At one point Superman is seen conversing with Adel Al-Enzi who is in line at a cash register.
• The mannerisms and gestures of Superman allow for the inference that he is engaged in some type of dispute with Al-Enzi. The surveillance video, camera 12 from 3:33:21 to 3:34:17 supports this proposition.
• Camera 12 from 3:34:18 to 3:34:21 shows Superman walking away in a southerly direction, and Adel Al-Enzi heading in the same direction. They are moving rapidly.
• Camera 19 from 3:34:23 to 3:34:53 shows the following: Adam Kilmartin, an eyewitness, is on his cell phone outside, facing the store doorway about 8 to 10 feet away, Superman exits first, he appears to be reaching for something near his right hip, he has a rectangular bulge on his right thigh, he walks south, Adel Al-Enzi follows Superman walking south, Kilmartin turns and looks in that direction for about 20 seconds or so.
• Cameras 19 and 12 from 3:34:33 to 3:35:15 show people rushing back into the store, people in the store acting alarmed, it is at this point that a gun was seen and that a shot was just fired.
• The man in the burgundy toque is not seen exiting the store at the time of the shooting, and is seen shortly thereafter running north near the cash registers.

Eyewitness testimony

18The Crown called six civilian eyewitnesses: Sharon Wu, Monica Hamilton, Patrick Levesque, Marius Felix, Abdul Khogali, and Adam Kilmartin. Their evidence as to what they saw and who they described they saw with a gun varied, in some cases quite dramatically. Counsel representing the accused suggested that some of the eyewitness testimony was in fact exculpatory and that only Adam Kilmartin described the shooter or person holding the gun as someone wearing a Superman sweater, while each and every other eyewitness indicated that they did not see a Superman emblem on the clothing worn by the person they say they possibly saw holding the gun.

19In this case, following their description of the events and their description of the persons involved, each of the civilian witnesses was shown a portion of the surveillance video, and were asked if they recognized anyone in the video, and it was only Adam Kilmartin who said that he categorically recognized Superman as the shooter, Marius Felix indicated it could be him, while Mona Hamilton indicated she thought he was with that crowd but did not see him as the shooter. None of the other witnesses recognized anyone in the surveillance video.

20I would summarize the eyewitness evidence of each civilian as follows:

• Sharon Wu: She was in the Ralph Laurent/Polo store checking out items at the cash register about three metres from the door. She heard a loud gunshot. She looked through the glass window and saw a "pretty tall man 6 feet tall wearing a winter jacket blue and white holding a gun in both hands parallel to the cashier." A lot of people then ran to the back of the store. She took a glance at the gunman, she didn't take a second look. She was very scared. She was shown a portion of the surveillance video and did not recognize anyone. She did not participate in a photo lineup. She couldn't remember the colour of the skin of the individual that held the gun nor whether he was wearing a hoodie or a baseball hat.
• Mona Hamilton: She was walking with her husband outside of the store and noticed a man pointing a gun at the victim, and then she heard a pop. They were scared and shocked. She saw the bullet casing along the edge of the tree bed. She indicated she wasn't paying attention until it was happening. She described him as tall, slim, wearing a dark jacket with long blue sleeves, that he was holding the gun down on the guy, that he was tall, 6 feet. They were arguing. She indicated she looked at the gunman for quite a long time but wasn't looking at him when the gun was shot. She was 5 to 6 to 8 feet away she thought. She was shown the surveillance video and recognized the man with the vest and the blue ball cap and indicated that he was part of the crowd who was with the shooter but wouldn't say he was the shooter. She then said that she wasn't sure, she was second-guessing herself. The colour of the dark jacket and sleeves could have been the same, it could've been a white guy or a black guy, she just really only noticed the gun. She said she didn't notice any kind of symbol on his jacket. She said she didn't know if he was wearing a hat. In cross-examination, she indicated she couldn't determine whether he was black, Middle Eastern or South American. She was reshowed the video and in particular where Superman was, and indicated he was part of the crowd and not the gunman, as far she was concerned.
• Patrick Levesque: was inside the store. He was shopping at the back. He saw an unusual group of men walking in the store wearing gold jewelry. He said he didn't leave the store, he was in there the whole time. He observed one man walking back and forth in an intimidating manner. He wasn't sure how many minutes after that he heard a gunshot. He said he moved forward to see what was happening, that everyone inside was scattering, that people were rushing in. He saw a person going backwards holding a gun in his left hand, backing up slowly. He was wearing a blue and black puffy vest and a sort of blue sweater, and he was wearing yellow Timberland boots. He was 5'10" to 5'11". He said it was a small gun rectangular in shape, that he was 20 or 25 feet away. He pointed out on a photograph where he was standing, photo 24. He maybe viewed him for five seconds. He said it felt like five minutes. He was shown the surveillance video and couldn't recognize anyone. He was fairly adamant about the yellow Timberland boots, although said he wasn't a boot engineer. He did not see a Superman emblem or logo on the clothing of the shooter, he knew what a Superman logo was but he didn't see one. He didn't see a hat, that he might have been wearing a small toque. He did not remember giving a prior statement saying that the shooter was wearing earrings.
• Marius Felix: He was shopping with his daughter and his wife. They were walking along the mall grid system, quite near the Ralph Lauren store. He was shown page 8 of Exhibit 4 and identified a woman in red as the area where they were on the date in question. He then indicated that his daughter said there was a guy with a gun, that there was yelling between two men. They didn't see well. The gunman was lifting the gun up and down with his right arm. His daughter said "gun, gun" a couple of times. His daughter pulled his arm, and then they heard a shot. He described the gentleman with the gun as 5'10" to 6'2", black, with a dark ball cap with a red emblem on it. He had dark clothing and a vest over a jacket. He didn't see the individual's face or facial features, he maybe had a little goatee. His body type was slender, he was lean. He testified that the gun looked like a type of army pistol, a .40 or .45 calibre handgun. He was shown the surveillance video and initially stopped the video when he saw a black person with his hands in his pocket and said that may be the guy. In fact, it was someone completely unrelated to these events. He then testified that when he saw "Superman" in the video, that the vest and ball cap make him think that that's him, it is a more accurate depiction of who he saw. He participated in a photo lineup, and indicated yes to two out of 12 people; he marked "no" to a photo of the accused. In cross-examination he acknowledged that it was about a 15-second period of time from when he initially saw him to the end. He acknowledged that when viewing the video he was looking for a black person fitting that description. He was unequivocal that he saw the gun. He did not see a distinguishing logo or symbol on any of the individual's clothing but indicated that he was looking at him from an angle. He was wearing a vest, and that there was possibly red on the front of the hat.
• Abdul Khogali: was working as a security guard at the Ralph Lauren/Polo store. He said he saw an argument between two guys, he could not exactly say what it was about. Then when his memory was refreshed with a prior statement, he said he heard, "Come outside I will deal with you," that the black guy said this, but that now he was not sure of what was said. That he looked outside and saw a gun on the guy who pulled it out and shot toward the floor. He believes that they were the two people he saw arguing. After the shot was fired, a lot of people rushed into the store. No one was hit by the shot. He said that the shooter was a black male wearing a hoodie or a vest, but that nothing stood out about him. He couldn't be 100% sure, but he remembered the vest was black or blue, something along those lines. He was shown the surveillance video; he did not recognize anyone. In cross-examination it was brought out that he did not participate in a photo lineup. He said he saw the guy with the gun for maybe half a second. His observations were a matter of seconds. He could only say it was a black male wearing a blue sweater, that he wasn't sure. He could not describe the height, stature, weight of the person or anything else regarding the clothing. He did not see a Superman symbol on the man.
• Adam Kilmartin: indicated that he was originally shopping inside the Polo store. He saw a group of people that stood out because they were wearing baggy clothes and gold chains. He left the store and then he saw an altercation, he saw them outside. He was on his cell phone and he saw the altercation. He was about 7 to 10 feet away from the shooter. He couldn't say that he saw the face or the shot go off but he heard it, and he saw the gun being pointed vertically with one hand, that he was 15 feet away at that point. It lasted about a minute before the shot went off, but he could not honestly say how long he observed what took place. He believes he was observing it for as long as he was on the cell phone and the altercation was taking place, that his attention got drawn to what was happening. He saw the shooter and described the shooter as wearing a light blue hoodie with a Superman logo, a baseball cap, a bubble vest and camel pants. That after the shot, he went into the store, he didn't see where the shooter went. He said the shooter was of Somalian descent. His skin colour was dark, that he was 5'8" to 5'9". That he himself was 5'5" to 5'6". That he could not really say anything about his build because he was wearing clothing. He said he saw the victim in the store with two of his friends buying clothes, wearing a black bomber-style jacket, wearing gold chains. The witness was then showed the surveillance video, and on camera 19 at 3:34:24, he pointed out in no uncertain terms Superman and the victim as well as the persons that the victim was with that day, namely, Abraham Bihi and the victim's brother. He recognized them by the clothing they were wearing. When the witness pointed out Superman exiting the store, he also pointed himself out in the video, on a cell phone looking at the doorway as Superman exited followed by Al-Enzi. He was unequivocal in his recognition of the various participants in the surveillance video.
• In cross-examination it was brought out that in a prior statement made on December 29, 2014 he voluntarily went to the police station and gave a written statement. He acknowledged he made no mention of the Superman symbol or logo at that time, he further acknowledged that he was well familiar with the Superman symbol. He testified that after he received the subpoena to come to trial, in the last week or so he replayed the events in his mind and then remembered the Superman sweater and baseball hat. He acknowledged that he started recognizing some of the other participants once he was viewing the video, that he didn't recall them prior. He said he did not see a man with a burgundy hat. He didn't participate in a photo lineup. He gave no facial description. He gave an estimation of the victim at 5'10" and it was put to him that he was tailoring his evidence to fit the video. He saw the shooter at 5'8"-5'9" and the victim at 5'10". He felt the shooter was shorter because the shooter was trying to elevate himself over the victim with the gun. It appeared to him that he was almost hunched over to elevate himself. In re-examination, it was brought out that he never met with the Crown or the police prior to trial, that the statement he gave to the police on December 29 was completely voluntary and he attended because he felt he had to.

First responder/Police evidence/Firearm expert evidence

21The evidence of the paramedics, first responder police officers, investigating officers and firearm expert evidence was not especially controversial nor was it seriously contested during the course of this trial. It established the following to my satisfaction beyond a reasonable doubt: that a .40 calibre handgun was shot at the Tanger Outlets mall on December 26, 2014, that the bullet hit Adel Al-Enzi in the shoe/foot. The bullet was in fact lodged into the shoe. The shooting took place just outside the Ralph Lauren/Polo store, that it occurred in a crowded area at about 3:35 p.m.

22The victim would not provide any statement or assistance in identifying the shooter. Cell phones were seized from the victim as well as Abraham Bihi. The two men were eventually released without any charges.

23It was brought out in cross-examination of the first responder police officers by defence counsel that a dozen eyewitness statements were taken and that only two persons were involved in photo lineups, Marius Felix and a Carol Jones, and that neither of them selected a photograph of the accused as the shooter involved in the incident on December 26, 2014, and that only three of the 12 individuals provided video statements.

Arrest of the accused, execution of search warrant and evidence extracted from his cell phone

24On December 30, 2014 Yaqoub Ali, the accused, was arrested in a high-risk takedown based on information that he was in a vehicle suspected to have been involved in the shooting incident of December 26, 2014. The arresting officers seized the accused's iPhone and cell phone.

25It was brought out in cross-examination that a search warrant was executed at Yaqoub Ali's residence on December 30, 2014, and that the execution of the warrant did not yield a handgun or any clothing matching the clothing of Superman, i.e. a Superman sweater or a baseball hat such as the one being worn by Superman in the surveillance video.

Evidence extracted from cellular phones and iPhones

26A police officer with technical expertise in the extraction of information from cellular phones and iPhones presented evidence. The result was a series of text messages and a number of phone calls received by the accused from the victim and sent by the accused to the victim that were presented to the court. In terms of what evidence can be relied upon, I indicate that the only evidence I took into consideration in arriving at my decision were text messages sent by Yaqoub Ali, as they are admissible evidence of out-of-court utterances from an accused person. Those received by him would be hearsay evidence and thus inadmissible and I did not rely upon them.

27The police also extracted a series of photographs from the accused's cell phone. These were put in a photo book together with still photos extracted from the surveillance videos, all filed as Exhibit 15. The likely date of each photo from the iPhone was also provided.

28While a great deal of information was put forward in terms of the number, nature of telephone communications and text messages, I arrive at only two findings of fact from this entire area of evidence, and they are: that Yaqoub Ali and the victim Adel Al-Enzi knew each other and that they likely had some kind of a falling out or dispute. It is impossible to comment on the nature and extent or degree of the dispute or falling out. I make that finding based on the clear evidence that Yaqoub Ali text-messaged and called the victim several times in the months leading up to December 26, 2014. The dispute/falling out I base on the fact that there was a significant reduction in the number of calls and text messages in the weeks just prior to December 26, 2014, and one specific text message from Yaqoub Ali to the victim's phone on December 8, 2014 which said:

"What I did was some bird goof shit and I kno u showed me bare love fam and I shit all over that and I'm extremely sorry I dunno wat I was thinking even when I did that I didn't even answer any of his calls cuz it didn't sit well with me I'm embarrassed and at a loss for words except wallahi I'm sorry I don't blame u for not trusting me anymore I violated u and if there's anything I can do to fix that let me kno I feel like the biggest piece of shit"

29The photographs extracted from the accused's iPhone also establish that the accused and the victim knew each other. They are seen together in some of the photos.

30The photographs also show the accused wearing the same type of hat as Superman, black with a diamond and red lettering. He is shown in one photo taken on December 23, 2014 – Exhibit 15, photo 16 – wearing this type of hat.

31Miscellaneous other evidence: Counsel representing the accused established that the investigation did not determine whether there were any outside video cameras, that a dozen eyewitnesses were spoken to and that only two of them conducted photo lineups and that in each case the accused was not selected. That Adam Kilmartin was not interviewed by the police, that he attended voluntarily. However, the lead investigating officer Joanne Pilotte was adamant when cross-examined that she had absolutely no conversation with Adam Kilmartin concerning his evidence prior to attending court.

Analysis

Has the Crown proven beyond a reasonable doubt that Superman was the shooter?

32Counsel representing the accused argued that the eyewitness testimony at this trial in many ways served to exculpate Superman as the shooter, and that the failure of most of the eyewitnesses to have seen a Superman logo on the shooter, and to have properly identified him, and to have possibly described somebody else, should create a reasonable doubt in the mind of the court as to his being the shooter. The argument was compelling and not without merit.

33However, it must be remembered that eyewitness evidence is notoriously unreliable. In R v. Miaponoose, 1996 ONCA 1268, Justice Charron described it in these terms at paras. 9 and 11:

The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983). The Commission concludes in its study that "the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (at p. 7).

Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness's opinion when she says "that is the man" is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists. One example is pointed out by the Commission (at p. 10):

Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.

34The testimony of many of the eyewitnesses was a testament to the veracity and accuracy of the comments made concerning this type of evidence in Miaponoose. The failure of several witnesses to see the logo on the sweater or to provide very different accounts of how the gun was held, the physical description of the person holding the gun demonstrates the inherent frailty and unreliability of much of this evidence. I would categorize it as non-confirmatory as opposed to exculpatory.

35While most of the eyewitness identification evidence was equivocal, guarded, and lacking in precision, there was one glaring exception in this case and that was the testimony of Adam Kilmartin. He gave a very precise description of the clothing worn by the shooter. However, what sets his evidence apart from the others is that his account of where he was standing, and what he saw, and where he was looking is corroborated by the surveillance video evidence. In truth, he is standing right there when Superman and the victim exit the store. He is seen turning and looking in their direction for 20 seconds. Essentially, there is video evidence of him being a witness to what took place. It supports the likely accuracy of his account.

36This eyewitness evidence standing alone did not establish to my satisfaction that Superman was the shooter.

37What sets this case apart was the surveillance video evidence. In R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197, Mr. Justice Cory indicated the following regarding the usefulness of video evidence. At paras. 21-23, he said:

21 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.

22 So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. [...]

23 It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. [...]

38While the surveillance video evidence does not show the actual shooting, it shows everything leading up to the shooting. It shows a dispute between the victim and Superman. It shows them exiting the store. It shows Superman reaching for his right hip for what looks like a rectangular object. It seems to me that it is a reasonable inference given the other evidence that he is reaching for a gun. This coupled with the Kilmartin eyewitness evidence convinces me beyond a reasonable doubt that Superman was the shooter.

39Therefore with respect to question one, I find that the Crown has proven beyond a reasonable doubt that the individual who discharged a firearm on December 26, 2014 at the Tanger Outlets mall was the individual in the surveillance video wearing a Superman hoodie, a vest and a baseball hat with a diamond and a red emblem.

Has the Crown proven beyond a reasonable doubt that Yaqoub Ali is the person in the video wearing the Superman hoodie, vest, and baseball hat with a diamond and red emblem?

40I conclude that the Crown has established beyond a reasonable doubt that the individual in the surveillance video wearing a Superman hoodie, black vest and baseball hat with a diamond and red emblem was the accused before the court, Yaqoub Ali, for the following specific reasons:

• While the video surveillance evidence and photographs extracted from them are not clear enough to allow for the identification of the accused as Superman, they nonetheless allow me to confidently say that there is a resemblance between the man in the video and the accused before the court. They are both black, they have a similar facial structure, they are both lean, they have similar facial hair. Simply put, they do look alike.
• Photographs extracted from the accused's cell phone show Ali wearing the same type of baseball hat. It is a hat with a diamond shape emblem, yellow, with the word "diamond" written in red. In one photo, he is wearing it on December 23, 2014. It is the same type of hat Superman is wearing on December 26, 2014. The investigating officer, a veteran of some 12 years, who worked both in the drug unit and guns and gangs, testified that she had never seen a hat of this type before. For that matter, nor have I. I believe it is fair to say that it is somewhat uncommon.
• Text messages and phone calls from Yaqoub Ali and the victim evidencing that they knew one another, and in one case allowing for the inference that they had some kind of a dispute. A specific text message dated December 8, 2014 from Yaqoub Ali to the victim allows for this inference.
• Finally on this issue, if one juxtaposes the photographs at pages 7 and 31 of Exhibit 15, it shows a reasonably compelling resemblance between the accused and Superman. One of the photos is of Yaqoub Ali from his phone, the other is from the surveillance video.

41Finally, I would say that this was a case where the sum total of the evidence, the cumulative impact of each individual piece of evidence including the surveillance video, the eyewitness account that was supported by the surveillance video, the evidence extracted from the cellular phones of the accused including the text messages between the accused and the victim, and photos where he is wearing the same type of hat, have all acted in concert to convince me beyond a reasonable doubt that the shooter on that day was Yaqoub Ali.

42Therefore, I find Yaqoub Ali guilty.

CERTIFICATE OF TRANSCRIPT

EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription of the recording of R. v. Yaqoub Ali in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR32_20160616_090256__ 10_MARANGRO, which has been certified in Form 1.

June 22, 2016