CITATION: R. v. Omar, 2017 ONSC 5451
COURT FILE NO.: CR-17-10000450-0000
DATE: 20170914
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
IBRAHIM OMAR
Accused
Tania Monteiro, for the Crown
Chris Rudnicki, for the Accused
HEARD: May 29 to June 3, 2017
B.A. ALLEN J.
REASONS FOR DECISION
BACKGROUND
The Charges
[1] The accused, Ibrahim Omar, is charged under s. 85(2) of the Criminal Code with robbery with an imitation firearm, under s. 279(2) with forcible confinement and under s. 145(1)(a) with escape lawful custody. Mr. Omar also goes by the nickname “Ibi”.
[2] The robbery and forcible confinement charges arise from an incident that occurred at a party in a hotel in Toronto on June 2, 2013. Two other persons charged were young persons whose trials proceeded through youth court. The escape lawful custody charge arises from Mr. Omar breaking free of the officers who arrested him on January 21, 2014 at his high school.
Brief Overview of the Facts behind the Charges
[3] Three of the witnesses the Crown called attended the party at the hotel. The complainants, Nanayan Nyanin, Silina Boshnaf and Brittany Roussoulli were among six persons who arrived together by car. Mr. Nyanin’s friend, Anthony, who drove them to the party, was among the six persons.
[4] Two men greeted the six partygoers in the lobby of the hotel and accompanied them upstairs to the room where the party was being held. The living room was dark when they entered. The two men who greeted them led the six persons through the living room past a number of male attendees into the bathroom. The two escort men entered but did not remain in the bathroom.
[5] The bathroom was a confined space. Ms. Roussoulli’s evidence is that there were two sections to the bathroom, one containing the bathtub and the other the shower. The section with the shower was closest to the entrance to the bathroom, the bathtub being further away.
[6] The plan was for the six to smoke marijuana in the bathroom. A joint was being passed around. At that point, according to Ms. Boshnaf and Mr. Nyanin, three men entered the bathroom and, according to Ms. Roussoulli, only two men entered. The door was closed behind them. They robbed some of the occupants. Ms. Roussoulli’s evidence is that Mr. Omar was not one of the robbers. Ms. Boshnaf and Mr. Nyanin allege Mr. Omar was one of the robbers. One of the men used a firearm. The evidence supports the fact that the armed person was not thought to be Mr. Omar. The robbery occurred very quickly, lasting only a few minutes. The men then fled the room.
[7] The evidence of the three witnesses differs on some less consequential points but also diverges in more critical areas that affect the identification of Mr. Omar as one of the perpetrators.
[8] Some seven months after the robbery, on January 21, 2014, Officers Lauren Hassard and Carla Tolon were tasked to arrest Mr. Omar at his high school. He was called from his classroom by the principal as the officers waited in the hallway outside the room. He was arrested in the school but not cuffed. As the officers escorted him through the school he broke free. He was arrested some time later outside his home.
ISSUES
[9] On the robbery and forcible confinement charges the main issue is the identification of Mr. Omar as one of the persons involved in the robbery. If he is found to be one of the robbers, the question is whether he is jointly liable for armed robbery with the person who used the firearm. The firearm was never retrieved. There is a further question as to whether the facts support a finding that the firearm was a real firearm.
[10] The defence concedes the police had reasonable and probable grounds to arrest Mr. Omar. The question is whether the taking of custody of Mr. Omar was lawful.
ROBBERY AND FORCIBLE CONFINEMENT
Identification Evidence
Legal Principles
[11] Identification evidence is inherently unreliable. Many wrongful convictions result from the frailties of eyewitness identification evidence. Even well-meaning witnesses may misidentify individuals: [R. v. Miaponoose, (1996), 3 O.R. (3d), 419 at paras. 16-18, (Ont. C.A.); R. v. F.A. 2004 10491, at para. 39, (Ont. C.A.); and R. v. Quercia 1990 2595, at p. 389, (Ont. C.A.)]. Certain factors are useful measures for the strengths and weaknesses of this type of evidence:
• the presence or absence of distinctive features or appearance of the suspect;
• the witness’s previous acquaintance with the suspect;
• the witness’s opportunity to observe the suspect;
• the distance of the witness from the suspect; and
• evidence of focussed attention or any distraction by the witness.
[R. v. Miaponoose, at para. 16]
[12] There are different forms of identification evidence.
[13] Recognition involves a witness who knows or is familiar with the accused and recognizes them. Recognition evidence is merely a form of identification evidence. The same concerns that apply to other types of identification evidence and the same cautions must be considered with recognition evidence. The Court held: “[t]he level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence”: [R. v. Olliffe, 2015 ONCA 242, at para. 39, (Ont. C.A.); R. v. Campbell 2017 ONCA 65, 2017 ONCA65, at para. 10, (Ont. C.A.)].
[14] The difference between recognition cases and cases involving identification by a witness of a complete stranger is affected by “the timeline of the identification narrative”: [R. v. Charles, 2016 ONCA 892, at paras. 50-51 (Ont. C.A.)]. This refers to the immediacy of the recognition in relation to the commission of the offence. Certain indicia of familiarity can serve as measures of the strength of recognition evidence:
• the length of the prior relationship between the witness and the suspect;
• the circumstances of the prior relationship between the witness and the suspect; and,
• the timing of the contact between the witness and the suspect prior to the event where the witness recognized the accused.
[R. v. Brown 2006 42683 (Ont. C.A.)]
[15] In-dock or in-court identification is another form of identification evidence.
[16] This refers to a witness identifying the person sitting at the defence table or in the prisoner’s dock as the assailant involved in the crime before the court. The Ontario Court of Appeal affirmed the longstanding view that in-dock identification should attract little weight: [R. v. Izzard (1990), 1990 11055 (ON CA), 54 C.C.C. (3d) 252, at pp. 255-56, (Ont. C.A.) and R. v. Reitsma (1998), 1998 825 (SCC), 125 C.C.C. (3d) 1, at paras. 56-59, (S.C.C.)].
[17] The Supreme Court cautioned that: “…it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere”: [R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50, (S.C.C.)]. The danger lies in the possibility of the witness identifying the accused only because he is the person they see in court sitting in the place assigned for an accused.
[18] There is also a distinction to be made between the value of identification evidence that comes from a previous fleeting observation or a first identification in court, on one hand, and, on the other hand, identification evidence that arises in the context of previous encounters with the accused in relation to in-court identification.
We also note that this case is quite different from the classic case where the in-dock identification is central to the Crown's case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court. Here, the appellant was caught fleeing the scene and the in-dock identification was only one of several pieces of evidence linking the appellant to the guns found in the car. In addition, Mr. McLeod had had considerable contact with Doug over a summer and had given police a description of Doug that resembled the appellant.
[R. v. Muir, 2013 ONCA 470, at para.11, (Ont. C.A.)]
[19] The Law Reform Commission of Canada addressed some of the subjective factors that can affect the weight of identification evidence. The Commission cites the findings of psychologists who have examined the psychological processes of perception and memory often at play with witnesses giving identification evidence.
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 sense organs and transmitted to the brain do not constitute photographic representations of reality. Since perception and memory are selective processes, viewers are inclined to fill in perceived events and 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.
[Law Reform Commission of Canada Study Paper (1983) on “Pretrial Eyewitness Identification Procedures”, at p. 10] (the “Commission Paper”)
[20] There is no suggestion that identification witnesses are attempting to intentionally deceive the court when testifying as to a suspect’s identification. The Commission Paper points out that those witnesses are frequently completely unaware of the interpretative processes of filling in necessary but missing information. Very often witnesses give evidence in good faith without being conscious of the distortion that can infiltrate their evidence because of their interpretative processes. Hence, honestly given identification evidence can as a consequence be mistaken: [Commission Paper, p. 10].
[21] The Commission Paper also addresses the dangers that are inherent in photo line-ups. The Paper cites an American case that approved observations made by English scholars on this subject. The court in the American case observed that it is commonly understood that once a witness selects an accused in a photo line-up they are not likely to change their mind afterwards with the result that for practical purposes the issue of identity is decided at the photo line-up: [Commission Paper, p, 12, citing United States v. Wade, 388 U.S. 218 (1967)].
Evidence of Robbery Witnesses
Silena Boshnaf’s Evidence
[22] Ms. Boshnaf testified that when the joint was being passed around three men entered the bathroom. She identified the three men as Kimani, Joseph and Mr. Omar. What she saw first was Kimani throwing Anthony into the bathtub and punching him. Then she saw who she identified as Mr. Omar robbing Mr. Nyanin. She testified she next saw Joseph with a firearm in his backpack. She stated that he quickly drew it out revealing just the handle and trigger area. She did not see him take the gun out of the backpack. She stated that Joseph demanded that she hand over her belongings. She refused. Ms. Boshnaf described the firearm as being a matte silver semi-automatic with a black strip. She thought it was a real firearm.
[23] Ms. Boshnaf said everything happened very quickly. She testified she got a glimpse in her periphery of Mr. Nyanin emptying his pockets. At first she testified she did not know who asked Mr. Nyanin to empty his pockets. Crown counsel referred her to her statement to the police, given four years earlier in June 2013, where she told the police that Mr. Omar made Mr. Nyanin empty his pockets. While she indicated she did not recall that at trial she agreed what she told the police is accurate.
[24] Ms. Boshnaf indicated at trial that Mr. Omar was not wearing glasses. She was referred to her police statement where she said he was wearing glasses. She agreed that what she told the police is true. At trial Ms. Boshnaf said she saw the three assailants. However, she said she was uncertain as to whom was picking peoples’ belongings from the bathroom floor before they fled. At the preliminary inquiry she testified she saw only Kimani doing this. She adopted her earlier evidence. Ms. Boshnaf testified the bathroom door was closed during the robbery and when the men fled they opened it and ran out.
[25] Ms. Boshnaf testified Mr. Omar was not a friend but she had seen him around her school over the years and had encountered him in the community many times. She called him a “friendly acquaintance”. She identified him sitting at the defence table as the person called “Ibi” who she saw in the bathroom at the hotel.
[26] On December 23, 2013, some six months after the robbery, Ms. Boshnaf went to the police station for a photo line-up. She was presented with three photo line-ups. In one of the photo line-ups she identified one of the persons as being Mr. Omar, the person involved in the robbery. The defence conceded the photo was of Mr. Omar.
Nanayan Nyanin’s Evidence
[27] Mr. Nyanin confirmed Ms. Boshnaf’s evidence that while the joint was being passed around the bathroom three men burst into the room. At trial he described the three men as: male # 1 (identified as Kimani), an African, muscular, taller than him; male # 2 (identified by some as Mr. Omar), Somali in appearance, also taller than Mr. Nyanin but shorter than male # 1; and male # 3 (identified as Joseph), short and Somali or Ethiopian in appearance. Of note is that Mr. Nyanin had never met any of the three men before the robbery.
[28] Similar to Ms. Boshnaf, Mr. Nyanin testified that male # 1, Kimani, entered the bathroom first, followed by male # 2, and then male # 3, Joseph.
[29] Mr. Nyanin stated that before the men entered Joseph called him outside the bathroom. Joseph asked him where he was from and Mr. Nyanin indicated he was not from around there. Mr. Nyanin then re-entered the bathroom. The three men then came in and the bathroom door was closed behind them.
[30] Mr. Nyanin testified in-chief that Joseph pulled a gun from someone’s backpack but he did not recall who was carrying the backpack. Unlike Ms. Boshnaf, he said Joseph was not carrying the backpack. On cross-examination Mr. Nyanin testified he thought Joseph took the firearm from a backpack Mr. Omar was wearing. Defence counsel referred Mr. Nyanin to the transcript from the preliminary inquiry held on January 5, 2015. Mr. Nyanin acknowledged that the first time he identified who was wearing the backpack was at trial and further acknowledged that at the preliminary inquiry he also did not indicate who was wearing the backpack.
[31] Joseph pointed the gun directly at Mr. Nyanin’s face from about one foot away. Mr. Nyanin put up his hands. Mr. Nyanin testified Joseph then told him, “If you don’t give me what you have, I’m going to shoot you or blow your head off.” He described the firearm as a silver metal semi-automatic with a black handle. He also believed it was a real firearm. Mr. Nyanin then saw Kimani walk toward Anthony. He testified he saw Anthony fall into the tub and Kimani on top of him punching him.
[32] Mr. Nyanin testified that while Joseph was pointing the firearm at him, male # 2, a male taller than himself, started going through his pockets. Then male # 2 ordered Mr. Nyanin to take what he had out of his pockets. Mr. Nyanin did as he was told. He handed over his cellphone, wallet and watch. The three men ran out of the bathroom. Mr. Nyanin and the others who came with him went to the lobby and asked the person at the front desk to call the police.
[33] Mr. Nyanin conceded that the main focus of his attention was on Joseph and the gun that was in his face. He further conceded that he only saw the person who went through his pockets for a couple of seconds.
[34] The police arrived and asked them to go to the police station. Mr. Nyanin refused to give a statement. He said he was angry and afraid because his wallet contained his licence with his address on it and he feared for his and his family’s safety if he spoke to the police. Mr. Nyanin eventually did go to the police on July 20, 2014, almost a year after the robbery.
[35] In-chief at trial, Mr. Nyanin was asked to describe male # 2. He testified that male # 2 or # 3 was wearing glasses. He said male # 2 was taller than him, a bit chubby, with a long face, curly hair and a darker complexion and weighed approximately 170 – 190 lbs.
[36] Mr. Nyanin was shown his police statement to refresh his memory on how he described male # 2 to the police. He described him as dark skinned, larger than him at about 200 lbs., and as Somali or Ethiopian. He told the police at first he was not sure whether he wore glasses. When the police asked if he would recognize him if he saw him again he responded, “If he had glasses on, maybe.” Mr. Nyanin acknowledged that he gave the police a heavier weight than he gave at trial for male # 2.
[37] Mr. Nyanin made an in-court identification of Mr. Omar as male # 2, the man who robbed him. He acknowledged that Mr. Omar was not wearing glasses in court. He said it could have been Mr. Omar that was wearing glasses during the robbery. He maintained that Mr. Omar who was at the defence table in court had the same descriptors as he had previously given at trial except he observed that Mr. Omar looked slimmer at trial.
[38] Mr. Nyanin testified about male # 2’s ethnicity, his skin colour, his hair and his weight. Notably, he had no memory at trial of his facial features. On cross-examination he also said he might recognize him if he had glasses on. However, he admitted he was not confident that he could recognize male # 2. Mr. Nyanin also admitted that before the photo line-up he could give no details about his facial features.
[39] Mr. Nyanin admitted that when describing male # 2, when he could not remember his features, he described features that from his experience are commonly recognized as peculiar to Somalis, features that are distinct from the features of other black people. The general descriptors he gave included: a long face, curly hair, a larger forehead, darker skin and a smaller nose. Mr. Nyanin admitted that he approached the photo line-up without details as to male # 2’s features and that he was looking to identify a Somali-looking male of the height and weight he recalled with the general features he recognized as Somali.
[40] Mr. Nyanin’s problems with identification were more pronounced with Joseph, male # 3. Joseph was the person who held the gun one foot from Mr. Nyanin’s face. In spite of that close proximity Mr. Nyanin told the police nearly a year after the robbery that he did not recall anything about Joseph’s face. He said nothing of his ethnicity. Mr. Nyanin said he was not even sure if he was wearing a mask.
[41] The defence posed to Mr. Nyanin that it was only after he had attended Joseph’s trial where he saw the accused gunman, that he gave details about Joseph’s ethnicity. Mr. Nyanin acknowledged that Joseph’s trial occurred before he (Mr. Nyanin) testified at the January 5, 2015 preliminary inquiry in Mr. Omar’s case. His description of Joseph at the preliminary inquiry was similar to what he testified to at trial, that Joseph was Ethiopian or mixed.
[42] On July 20, 2014, nearly a year after the robbery, Mr. Nyanin was presented with three photo line-ups. As defence counsel took him through the photo line-ups Mr. Nyanin made distinctions between the black men he thought might be Somali or Ethiopian and those that he said might be West Indian or from other African countries. Defence counsel pointed out, and Mr. Nyanin accepted, that 9 of the 24 photos were of persons Mr. Nyanin identified as Somali or possibly Somali.
[43] From one of the three photo line-ups, Mr. Nyanin picked out a photo he identified as the man who robbed him. In answer to a question about why he thought the man was Mr. Omar he said that it was because of his mouth and the fact he had bags under his eyes which indicated to him that he wears glasses. Defence counsel acknowledged the person Mr. Nyanin selected was Mr. Omar.
[44] However, Mr. Nyanin also picked out another photo as the person who might have robbed him. He also described that person as Somali. But he also said that photo could possibly be of the person, male # 3, who attacked Anthony. He was not certain.
[45] The defence put to Mr. Nyanin that his description of male # 2 evolved and grew more detailed from the time of the incident in June 2013 and the police interview in July 2014, when he had no recall of his facial features, to the preliminary inquiry in January 2015 and trial in May 2017 when he saw the accused sitting at the defence table. Mr. Nyanin accepted that proposition but insisted that he had chosen the right person, the person who had robbed him.
Brittany Roussoulli
[46] Ms. Roussoulli testified that she knew all the guys who were at the party. She said she and the other five with whom she went to the party passed through the living room and the bedroom adjoining the bathroom accompanied by the two men who greeted them in the lobby. Unlike Ms. Boshnaf and Mr. Nyanin, Ms. Roussoulli testified that, as they walked to the bathroom, she saw Mr. Omar in the bedroom with some other men.
[47] Ms. Roussoulli testified that once in the bathroom, and just as the marijuana joint was being passed around, Joseph and Kimani came into the bathroom. Kimani came into the bathroom first, followed by Joseph. She said Mr. Omar did not enter. She said that for some years before the robbery she had been acquainted with Kimani, Joseph and Mr. Omar from school and from just hanging out. She saw Kimani take Anthony’s hat, push him into the tub and continuously punch him. She testified her focus was mainly on Anthony and Kimani.
[48] Ms. Roussoulli testified she tried to stop Kimani from hitting Anthony by pulling on his arm, but to no avail. Kimani began going through Anthony’s pockets while he was in the bathtub. When Kimani left the bathroom she helped Anthony from the bathtub.
[49] Ms. Roussoulli testified that she saw another development in her peripheral vision. She briefly glimpsed Joseph holding a firearm and pointing it at Mr. Nyanin. She said in-chief that she saw no more than that. On cross-examination defence counsel refreshed Ms. Roussoulli’s memory that she testified at the preliminary inquiry in March 2015 that she saw Joseph going through Mr. Nyanin’s pockets. She adopted her preliminary inquiry evidence. Ms. Roussouilli also testified that Joseph was wearing black rimmed glasses.
[50] Unlike Ms. Boshnaf and Mr. Nayanin’s evidence, Ms. Roussoulli testified she did not see Mr. Omar in the bathroom. She however conceded that because of the commotion and rapidly moving activity during the robbery someone else could have entered the bathroom without her noticing. The defence asked Ms. Roussoulli if there was any reason she would try to protect Mr. Omar. She asserted she was not close enough to him to even consider trying to protect him.
[51] Ms. Rousssouli made an in-dock identification and pointed to Mr. Omar at the defence table as the person she knows and who she did not see in the bathroom. She also immediately recognized him in one photo in the photo line-up.
Application of Legal Principles on Identification
[52] A finding of guilt hinges mainly on the observations of Ms. Boshnaf and Mr. Nyanin. Ms. Roussoulli’s evidence although useful for other reasons does not assist the Crown with placing Mr. Omar at the immediate scene of the robbery. She was acquainted with Mr. Omar for some years before the robbery. She spoke with some confidence that she did not see him in the bathroom. The extent of her evidence on identification is her concession on cross-examination of the possibility that the chaotic and fleeting atmosphere and her distraction with Kimani’s treatment of Anthony could have prevented her seeing Mr. Omar in the bathroom.
[53] This is a recognition case for Ms. Boshnaf in that she had some familiarity with Mr. Omar before the robbery. However, it is not a strong recognition case since Ms. Boshnaf admitted her view of Mr. Omar, male # 2, was only peripheral, a glimpse. It was a fleeting glance in a chaotic situation where understandably she was focussed mainly on Joseph, male # 3, who had pulled a gun from a backpack in front of her.
[54] This is not a recognition case for Mr. Nyanin. He had never met Mr. Omar or the other two men before. However, Mr. Nyanin was positioned to make a close-up observation of the male who robbed him of his belongings. He said it was male # 2 who robbed him. In his first description of male # 2 during his interview with the police, almost a year after the robbery, he described him as dark skinned, larger than him at about 200 lbs., and as Somali or Ethiopian. Interestingly, Mr. Nyanin’s first description of male # 2 contained no particulars as to his facial features.
[55] In coming around at trial to a more detailed description of male # 2, which included facial features, I believe Mr. Nyanin’s evidence was affected by the psychological processes addressed in the Commission Paper. It appears that he unconsciously engaged his interpretative faculties of perception and memory to fill in the necessary and missing details of male # 2’s features. By the time Mr. Nyanin got to trial some three years after he spoke to the police, he added to his description that male # 2 was taller than him, a bit chubby, with a long face, curly hair, of darker complexion and weighed approximately 170 – 190 lbs.
[56] The photo line-up was conducted on the same day as Mr. Nyanin’s police interview. Mr. Nyanin acknowledged that from his past experiences with Somalis he developed what amounts to a mental repertoire of general descriptors for features of Somalis that distinguish them from other Africans and other black people. Those descriptors included a long face, darker skin, curly hair, a larger forehead and a smaller nose.
[57] Mr. Nyanin admitted that he had those descriptors in mind when he reviewed the photos in the photo line-up. In fact, during cross-examination, defence counsel presented each photo to Mr. Nyanin. Defence counsel brought out the fact that, in distinguishing Somalis from non-Somalis, Mr. Nyanin used the general descriptors to distinguish who he thought was Somali from who was not. Significantly, based on the descriptors he used, this resulted in Mr. Nyanin selecting two men whom he thought could have been male # 2. One of his selections was Mr. Omar.
[58] I believe consistent with the findings in the Commission Paper that Mr. Nyanin may have mentally carried with him to trial those descriptors and the images from photos in the line-up. He identified the male sitting at the defence table as male # 2, the assailant who robbed him nearly four years earlier. But he noted that he was not as heavy as male # 2 and was not wearing glasses.
[59] Little weight can be given to his in-dock identification. I heed the caution of other courts that danger lies in the possibility that Mr. Nyanin identified Mr. Omar merely because he was sitting in the seat the court allocates for the accused. Along with this I considered that Mr. Nyanin’s identification evidence for the reasons discussed earlier is not otherwise very compelling. There is also the further concern addressed in the Commission Paper about the human tendency of a witness who, once selecting a person in a photo line-up, not being inclined to subsequently change their mind. Mr. Nyanin may well have fallen prey to that tendency.
[60] Glasses seemed to be somewhat of a defining identifier for Mr. Nyanin although he did not assign a consistent evidentiary meaning to his references to eye glasses. In his police interview Mr. Nyanin told the police he was not certain whether male # 2 was wearing glasses. At trial he said he was not sure whether it was male # 2 or Joseph wearing glasses. At points in his testimony he said he might be able to recognize his assailant if he had glasses on. During the photo line-up he said he could identify one of the photos he selected as Mr. Omar because he had bags under his eyes in the photo which meant to Mr. Nyanin that Mr. Omar wears glasses.
[61] The other witnesses testified about glasses being worn by an assailant. But their evidence as an identifier for Mr. Omar made the identification evidence even murkier. Ms. Boshnaf testified at trial that Mr. Omar was not wearing glasses and after being cross-examined about this, she accepted as true, her statement to the police that Mr. Omar was wearing glasses during the robbery. Just to add another layer of confusion about who was wearing glasses, Ms. Roussouilli, having testified that Mr. Omar was not in the bathroom, stated that Joseph was wearing black-rimmed glasses.
[62] Kimani was not an accused in this trial. So identification evidence associated with him does not go to an issue of guilt or innocence. The importance of this evidence in this trial, particularly as it was offered by Mr. Nyanin, goes to the reliability of his capacity under the circumstances of the robbery to describe another assailant with whom he interacted even more closely than with Mr. Omar.
[63] Joseph stood in front of Mr. Nyanin with the firearm pointed one foot from his face. However, when Mr. Nyanin spoke to the police one year later he had no memory of Joseph’s face. He told the police nothing about his ethnicity. In fact, he was not certain if Joseph was wearing a mask.
[64] Before the preliminary inquiry for Mr. Omar’s trial, Mr. Nyanin attended Joseph’s trial where Joseph was before the court as the accused gunman. Mr. Nyanin agreed that it was at the preliminary inquiry for Mr. Omar’s trial on January 5, 2015 that he first provided information about Joseph’s ethnicity. The description that Joseph was Ethiopian or mixed given at the preliminary inquiry was similar to what he told the court at trial.
[65] This, I find, is another instance of Mr. Nyanin filling in missing information at trial based on his past experience of seeing Joseph at his trial. This, I find, supports the view that Mr. Nyanin experienced problems, in the context of the fast-paced robbery playing out in front of him, with recalling and describing the persons who perpetrated the crime.
Conclusion on Robbery and Forcible Confinement
[66] Identity of an accused is a most fundamental element of an offence, an essential element that must be proven by the Crown beyond a reasonable doubt. I conclude that under the circumstances of this case to find Mr. Omar guilty of armed robbery would be dangerous. The evidence does not sufficiently establish to my satisfaction that Mr. Omar was one of the assailants.
[67] I find Ibrahim Omar not guilty of robbery with an imitation firearm under s. 85(2) of the Criminal Code. I must also find him not guilty of forcible confinement under s. 279(2). The Crown has not been able to prove Mr. Omar’s guilt of these offences beyond a reasonable doubt.
ESCAPE LAWFUL CUSTODY
[68] It is an offence under s. 145(1) (a) of the Criminal Code for a person to escape from the lawful custody of a police officer. To effect custody the officer must use words of arrest along with physical restraint or the accused must submit to physical restraint. Absent physical restraint of some sort the offence cannot be made out: [R. v. Costain, 2011 ONCJ 559].
[69] The Supreme Court of Canada in R. v. Whitfield dispensed with the subdivision of arrest into “custodial” and “symbolical or technical arrest”. The Court observed:
There is no room for what seems to be a new subdivision of “arrest” into “custodial” arrest and “symbolical” or “technical” arrest. An accused is either arrested or he is not arrested. If this accused was arrested, he escaped from lawful custody and is guilty under s. 125 (a) of the Criminal Code.
[R. v. Whitfield, 1969 4 (SCC), [1970] S.C.R. 46, at p. 48, (S.C.C.)]
[70] The defence does not dispute that the police had reasonable and probable grounds to arrest Mr. Omar when they arrested him at his school on January 21, 2014.
[71] There is no question that the police took custody of Mr. Omar and that he escaped police custody. The issue to determine is whether the arrest was lawfully executed.
[72] Mr. Omar was called outside his classroom by the principal. Officers Hassard and Tolon waited outside in the hallway. Officer Hassard took Mr. Omar by the arm and told him he was under arrest. Officer Tolon walked ahead of them as Officer Hassard escorted Mr. Omar through the halls and down some stairs in the school heading for the school exit. Mr. Omar broke free from Officer Hassard’s grip and ran through the hallways with the officers in pursuit. He eventually made his way outside and ran to a main street and escaped in a taxi eventually arriving at his home. The officers arrived outside his home. He left his home and ran a short distance. He was caught and arrested.
[73] It is recognized at common law and by the Constitution that an arrest is lawful only if the accused is promptly made aware of the reasons for the arrest. Section 10(a) of the Charter of Rights provides that everyone has the right on arrest or detention to be informed promptly of the reasons for the arrest. The Ontario Appeal Court observed:
The interests protected by subss. (a) and (b) are not the same. With respect to subs. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie v. Leachinsky, [1947] A.C. 573 at 587 - 88, [1947] All E.R. 567 (H.L.). It is, accordingly, essential that he be informed promptly or immediately of the reasons.
[R. v. Kelly 1985 CarswellOnt 74, at para. 15, (Ont. Sup. Ct., C. A.)]
[74] The Ontario Court of Appeal expressed the importance of this right in the following words:
Once detained, an individual is at the mercy of state actors. Thus, in the circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.
[R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219, at para. 21, (Ont. C.A.)]
[75] On encountering Mr. Omar, Officer Hassard told him he was under arrest. There is no evidence she advised him of the reason he was under arrest. The opportunity was available during the period she escorted Mr. Omar through the school halls and down stairs before he pulled away and ran.
[76] The defence questioned Officer Tolon about her role in the apprehension of Mr. Omar. She testified that she walked ahead of Officer Hassard and Mr. Omar. She said that when Mr. Omar asked why he was under arrest she responded that he was being arrested for a robbery. When, according to her interpretation of the circumstance, he pretended he did not know what she was referring to, she told him the arrest was for a robbery at a hotel.
[77] Defence counsel pointed out that Officer Tolon did not make a note of her advising Mr. Tolon of the reason for his arrest. Officer Tolon acknowledged this to be the case but she offered excuses why she failed to do this.
[78] The law and police protocol are clear on the importance of police preparing contemporaneous notes on critical non-privileged aspects of their investigations. The Ontario Court of Appeal stressed the central role officers’ notes play in the administration of the criminal justice system.
Reliable independent and contemporaneous police officer notes are central to the integrity of the administration of the criminal justice system.
The police officers’ notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to the reliability and integrity of the officer’s evidence that the notes record the officer’s own independent recollection.
[R. v. Schaeffer v. Ontario (Provincial Police), [2011] O.J., at paras. 69 and 70, (Ont. C.A.)]
[79] Officer Tolon had been an officer for 13 years at the time of the arrest. She explained that this was her first case with the Major Crimes Unit. She testified that the arrest of Mr. Omar and the subsequent chase and re-arrest of him were very taxing on her. She testified she was tasked back at the station after the arrest with preparing her first search warrant and with the preparation of her memo notes. This, she said accounted for her neglecting to include in her notes the information about advising Mr. Omar as to why he was under arrest. She insisted however that she recalls that she did give this information to Mr. Omar. She just forgot to write it in her notes.
[80] For a number of reasons, I have reservations about Officer Tolon’s evidence.
[81] Officer Tolon made a copious account of her observations of much less important matters. For instance, she recounted in some detail her grievances about the principal’s reactions and conduct in connection to the arrest. Yet she did not note a very critical matter, her explanation to Mr. Omar of the reasons for his arrest. This is critical to the Crown’s case and central to the accused’s guilt on this charge. Officer Tolon was not a novice at this time. She was an officer with 13 years’ experience. I find it is reasonable to conclude in the circumstances that had she advised Mr. Omar as she said she did she would have made a note of this.
[82] The arrest occurred some four years ago. Officer Tolon testified that during earlier involvements with the case before the trial she realized that she had not made a note of giving the reasons for the arrest. However, she did not seek at those times to prepare a subsequent statement to add this information to her account of the arrest. Surprisingly, she testified she was not aware she could do this or that she could contact the Crown’s office to advise of the additional information. Unfortunately for the Crown, Officer Tolon waited four years to provide information that is an element critical to the Crown’s ability to prove the charge of escape lawful custody.
[83] I do not accept that Officer Tolon provided Mr. Omar the reason for his arrest. The Crown has not proven beyond a reasonable doubt that taking custody of Mr. Omar was lawful.
[84] I find Ibrahim Omar not guilty of escaping lawful custody contrary to s. 145(1) (a) of the Criminal Code.
VERDICT
[85] I am satisfied the Crown has not proven Ibrahim Omar’s guilt beyond a reasonable doubt of robbery with an imitation firearm on count 1 on the indictment.
[86] I am satisfied the Crown has not proven Ibrahim Omar’s guilt beyond a reasonable doubt of forcible confinement on count 2 on the indictment.
[87] I am satisfied the Crown has not proven Ibrahim Omar’s guilt beyond a reasonable doubt of escape lawful custody on count 3 on the indictment.
[88] I therefore find Ibrahim Omar not guilty on counts 1, 2, and 3 on the indictment and acquittals will be entered accordingly.
B.A. ALLEN J.
Released: September 14, 2017
CITATION: R. v. Omar, 2017 ONSC 5451
COURT FILE NO.: CR-17-10000450-0000
DATE: 20170914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IBRAHIM OMAR
Accused
REASONS FOR DECISION
B.A. ALLEN J.
Released: September 14, 2017