Court File and Parties
COURT FILE NO.: CR-17-503-00 DATE: 2018 07 18 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Berg, for the Crown
- and -
SAAD FOUAD J. Kalina and S. Tejpal, for the Defence
HEARD: March 5-8, 2018 at Brampton
Reasons for Judgment
L. SHAW J.
Introduction
[1] Saad Fouad is charged with one count of robbery, contrary to section 343(a) of the Criminal Code of Canada, and one count of using an imitation firearm while committing the indictable offence of robbery, contrary to section 85(2)(a) of the Criminal Code of Canada. The charges arise from an incident that occurred on November 13, 2016.
[2] In a voir dire regarding the voluntariness of a statement Mr. Fouad gave to the Peel Regional Police on November 15, 2016, I found that the statement was made freely and voluntarily, and therefore was admissible as evidence in Mr. Fouad’s trial.
[3] In addition to that statement, the only evidence at trial were two witnesses called by the Crown. There was one agreed fact that the phone number (647) 620-7633 was registered to a cell phone owned by Mr. Fouad.
Overview of the Evidence
[4] On November 13, 2016, Mr. Fouad arranged to meet with Mr. Sanjeet Gogna at a residence located in Brampton, Ontario, for the purposes of selling Mr. Gogna an iPhone. They met outside the residence, and rather than selling Mr. Gogna the phone, Mr. Fouad took Mr. Gogna’s money. The allegation is that given the totality of the circumstances, there was an implied threat of violence and that Mr. Fouad therefore committed an act of robbery. It is also alleged that at the time of this act, Mr. Fouad was using an imitation firearm.
Mr. Gogna’s evidence
[5] Mr. Sanjeev Gogna testified that on November 13, 2016 he saw an advertisement on Kijiji for an iPhone 6 and called the phone number posted on the advertisement. The phone number was (647) 620-7633, which was registered to a cell phone owned by Mr. Fouad.
[6] Mr. Gogna testified that the person he spoke with was male and they discussed the price of the phone. Mr. Gogna was told by this person to meet him that evening at 39 Bruce Bear in Brampton, Ontario, between 6:30 and 6:45 pm. Mr. Gogna and his two children, who were teenagers, left their home and drove to a bank to withdraw $400 to purchase the phone. Mr. Gogna’s evidence was that at some point, he got a text from that same phone number asking to meet later, as the person he was to meet had friends and family at home and would meet him once they left. Mr. Gogna and his children then went to a mall. They arrived at 39 Bruce Bear at approximately 7:20 pm, and parked in front of the house.
[7] Mr. Gogna testified that he texted the same phone number after he arrived at the residence to ask the person where he was. The person responded by saying he needed some more time. While waiting in the car, Mr. Gogna observed a car on the street that stopped, and then moved and stopped and moved again. His daughter, who was in the rear seat, commented that the car looked fishy.
[8] At approximately 7:30 pm, a male came to the driver’s side of his car and asked Mr. Gogna if he wanted to check the phone and asked him to come to the basement of the house so he could show Mr. Gogna how it worked. This male had a white iPhone box in his hands. Mr. Gogna described the gentleman as a tall black man wearing a hoodie. He was approximately 18 to 20 years of age and had a slim build.
[9] Mr. Gogna testified that he got out of the car and walked along the side of the house towards the park at the rear of the house. To his right, there was a fence. The male was walking to his left and his two children were about 2 to 3 steps behind as they walked towards the rear of the house.
[10] Mr. Gogna testified that as they got to the rear of the house, he turned to his right, and at that point he saw a second male. He described this person as a tall, black, slim man, perhaps looking older than the first gentleman. According to Mr. Gogna, it was dark, and so he could not see these two men properly. The second gentlemen was also wearing a hoodie.
[11] Mr. Gogna testified that the second individual at the rear of the house was holding a gun in his right hand. He said that the man’s left hand was under his right wrist. Mr. Gogna testified that he was panicked when he saw this second man.
[12] On further questioning, Mr. Gogna described the object he saw in the man’s right hand as a “pipe kind of thing” that was dark black. His evidence was that the first man only had the iPhone box in his hands. According to Mr. Gogna, when he saw the second man, he stepped back and felt the first man’s hands on his side.
[13] When asked by the Crown, Mr. Gogna’s evidence was that given the lighting, he could not exactly tell the difference between a stick and a firearm, but that a stick is different than a pipe. He also admitted that he could not say exactly what the second male was holding, as he was only standing there a short time and his daughter was behind him screaming to leave her father alone. He described what he saw in the man’s right hand as being the length of his hand and that it looked longer than the normal size of guns he had seen in movies. He said that the diameter of the pipe was about 1.5 to 2 cm and it was circular in shape. He could not say if the front of this pipe was hollow or solid as it was dark, and he was only there a short time and was panicked. He testified that the reason he thought this male was holding a gun was that he was holding the object like a person would hold a gun.
[14] Mr. Gogna testified that when he saw this second male, the male told him to give him the money and that he shouldn’t worry as he was not going to do anything. At this time, the first male was standing behind him. According to Mr. Gogna, he gave the second male the money and he and his children ran from the area.
[15] On cross-examination Mr. Gogna acknowledged that it was a dark evening and that he could not make out the features of either man’s face.
[16] On cross-examination, his evidence was that what he saw the second man holding in his hand was a pipe but he could not be 100% sure. He admitted that it was possible that the man could have been holding a pen. On re-examination, his evidence was that he could not say exactly what the man was holding but that it looked like a gun.
[17] He admitted on cross-examination that he felt scared and panicked when he saw the second man, and the first thing he thought of was that he was being robbed. He admitted that the man did not threaten him or say he was going to harm the children, or to give him the money or else. He simply told him to give him the money. Mr. Gogna admitted that he was already scared so he gave him the money.
Megha Gogna’s Evidence
[18] Ms. Gogna, who is 18, testified that she went with her father to buy an iPhone from someone advertising it on Kijiji. They drove to a house and were waiting in the car. Ms. Gogna testified that there was a car that drove by and did a u-turn and drove by fast. She testified that it “felt kind of sketchy” and it was really dark.
[19] Her evidence was she saw a man standing by the driveway and her dad said he was going to get the phone and stated walking with this man towards the back of the house. She and her brother decided to follow their father and this man. She described the man as wearing a hoodie and dark sweat pants, but could not tell what he looked like. She said he was of dark skin colour, but could not see anything else. She testified that she thought he looked like a teenager or young adult.
[20] As they neared the rear of the house, her evidence was that she turned to the right and there was a second man standing there. She said her dad backed away and the first male they were walking with put his hand up and gave her father a gentle push towards the second man.
[21] Ms. Gogna testified that she began to plead with the first man to let her father go, and the first man said he was not going to do anything and to just give them the money.
[22] According to Ms. Gogna, the second man had his right hand up near her father’s stomach. She thought he had a gun in his right hand. She could not describe how he was holding what she thought was a gun. She described seeing something circular that she described as “just a little thing”. She described the length of the object as the distance between her knuckle to the end of her finger, or about 2 to 3 cm. Her evidence was that the front part of it was circular. She saw it protruding from his middle finger. She did not see anything else.
[23] Her evidence was that it just came to her mind that it was gun. She did not know what colour it was, as it was dark out. She looked at it once and she did not see much of it. Her evidence was that all she saw was that he was holding something and she looked at it really quickly. She testified that she thought he was holding a gun as there was something in his hand and her father was scared.
[24] Her dad handed over the money and the two men ran away and they went back to their car. The second man was wearing the same type of clothing as the first man.
[25] During cross-examination, Ms. Gogna admitted that while waiting in the car, she felt like they were in danger and she was already concerned for her safety before they walked to the back of the house. When she saw the second man, she agreed that the first thing she thought was that that something was going to happen although she did not specify what that was. When she saw him holding something in his hand, the first thing she thought was that it was a gun. She admitted that she did not know what she saw, but assumed it was a gun as her dad panicked. She agreed that all she saw was the tip of something. Her evidence was that no one threatened to hurt her or her father.
Mr. Fouad’s Statement
[26] Mr. Fouad was arrested on November 14, 2016. He gave a statement to Constable Hepton commencing at 1:37 am on November 15, 2016. The following are excerpts from Mr. Fouad’s statement:
HEPTON: Not physical, but violence itself can be a punch in the face, a threat, or just some kind of intimidation with, with a weapon or something. Okay? You get that? FOUAD: Mm-hmm. HEPTON: Okay. Now do you know where that violence or the threat came from? FOUAD: Yeah. HEPTON: Okay. Was it something you said? FOUAD: Yeah. HEPTON: What’d you say? FOUAD: I asked for the money. HEPTON: Yeah. FOUAD: And I told, I told his kids to go away. HEPTON: Yeah, ‘cause the kids were pretty young eh? FOUAD: Yeah. HEPTON: They could have got hurt easily. FOUAD: But they wouldn’t have. HEPTON: No, you wouldn’t hurt them? FOUAD: No. HEPTON: Okay. FOUAD: I just wanted food. HEPTON: You just wanted food? FOUAD: I swear to god…. HEPTON: Okay. Walk me through what happened yesterday pal. FOUAD: So I had, I had an iPhone 6 a while back and I already sold it. And like, like I said I had no food or anything. And I got so but my phones out of service but I can still receive incoming calls so that’s about it. So I got a call and they were asking for the phone, and I know it was wrong. Like I’m not even going to try and justify myself, but I saw the opportunity and I decided to carry out with it. So I just told them to meet me at a house beside the park. And he came and then I walked him around to the back and then that’s when I took his money. And then I just jet. HEPTON: Okay, and you said it was him and his kids? FOUAD: Yeah. HEPTON: How many kids? FOUAD: Two. HEPTON: Two kids? FOUAD: Yeah. HEPTON: Male or female? FOUAD: I think one was a boy, one was a girl. HEPTON: Yeah. FOUAD: If I’m not mistaken. HEPTON: Okay. And how much money was it that you took? FOUAD: 380. HEPTON: 380? FOUAD: (Nods head yes). HEPTON: Okay. What kind of violence did you use to get that money, or what did you say to him or, or what was the conversation between you two? FOUAD: I literally just told him give me the money, and he was like really scared and he just did. HEPTON: Oh. Why was he so scared though? FOUAD: I don’t know? HEPTON: No? FOUAD: Maybe it’s was ‘cause I was like bigger than him. The tone in my voice. HEPTON: Were you forceful, like give me money or just? FOUAD: I didn’t touch him at all. HEPTON: No? FOUAD: Like I didn’t touch him at all. But like I told him like give me your 1:52 money and then you can go and I told his kids just to step away. HEPTON: Yeah. FOUAD: And then he gave me the money and his son had already left. And then from there I just ran, and I don’t, I didn’t even look back or anything. HEPTON: Okay. Where did you run to? FOUAD: To my house. HEPTON: How’d you get there? FOUAD: I ran…… FOUAD: (Shakes head no). HEPTON: How many people were with you? FOUAD: I was alone. HEPTON: There wasn’t anyone else? FOUAD: (Shakes head no). HEPTON: Why would they say that there was more people than you? FOUAD: I don’t know, but I was alone. I was completely alone. HEPTON: Yeah? FOUAD: Yeah. HEPTON: Okay. Did you have any weapons on you? FOUAD: No. That’s, they were saying I had, I did an armed robbery, but it really wasn’t armed. I had nothing on me. I had a branch. HEPTON: Okay, so why would they, and they described two a T a gun. Okay? And that’s what our concern is that you pointed a gun at them. FOUAD: I don’t, I don’t… HEPTON: And you took. FOUAD: … have a gun. HEPTON: So why would they say that you did that? FOUAD: I don’t know. I had a stick it was dark out. I didn’t even point it at him I just asked him for the money and ran. That’s it like I, I didn’t even have time to point anything at him. I don’t have a gun to pull out. HEPTON: Okay. So how did this guy know that you had a phone? FOUAD: Well Kijiji. HEPTON: You had an Ad out? FOUAD: Yeah. HEPTON: Okay, and what kind of phone was it for? FOUAD: iPhone 6. HEPTON: Do you even have that phone? FOUAD: Not anymore. HEPTON: So your total intention was? FOUAD: No I had it before like when I posted it. HEPTON: Yeah. FOUAD: It was, they were real pictures like of my phone and I just never took the Ad down. HEPTON: Mm-hmm. FOUAD: It’s just he called me for the Ad and then like as everything was going through like I just thought of something wrong and did it. HEPTON: So in all reality here when he called you your total intention was 1:58 to steal his money. FOUAD: Yeah. HEPTON: Like you had no intention of giving him a phone. FOUAD: Yeah. HEPTON: Okay. An you see we’ve got three people, him and his two kids, that are all saying you had a gun. FOUAD: I didn’t, I didn’t have a gun. HEPTON: No? FOUAD: I didn’t have a gun. I’m telling you everything that happened. I did not have a gun. I don’t own a gun. I don’t have a gun. I don’t have access to a gun.
Crown’s Position
[27] The Crown’s position is that Mr. Fouad committed robbery, although there was no direct use of violence or explicit threat of violence. The Crown’s position is that overt threats are not necessary, and threats of violence can be expressed or implied by words and conduct. Based on the entirety of the circumstances, the Crown’s position is that there was an implied threat of violence, and that Mr. Gogna felt threatened and therefore gave Mr. Fouad his money.
[28] The Crown’s position is that based on Mr. and Ms. Gogna’s evidence, they both thought one of the men was holding a gun. The Crown’s position is that based on their description of what they saw and their belief that it was a gun, Mr. Fouad is guilty of using an imitation firearm to commit the offence of robbery.
Defence position
[29] The defence position is that while Mr. Fouad may be guilty of theft, he is not guilty of robbery. In his statement, he denied any use or threat of violence. Furthermore, there was no evidence of an implied threat of violence. This was supported by Mr. and Ms. Gogna who testified that they were not threatened. There was no evidence that when they arrived at the back of the house they did not have the choice to leave. Mr. Gogna was simply asked to hand over the money and he did.
[30] Mr. Fouad denies that he had a gun. He admits that he had a stick/branch, but denies pointing it at Mr. Gogna. The defence position is that Mr. and Ms. Gogna were already afraid before they walked to the rear of the house. Their belief that they saw a gun was the result of their imagination, and the assumption that they were in a sinister situation even before they saw the second man.
Analysis and Finding
(a) Robbery
[31] Section 343(a) of the Criminal Code provides as follows:
343 Everyone commits robbery who (a) Steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
[32] For Mr. Fouad to be guilty of robbery, the Crown must prove each of the following essential elements beyond a reasonable doubt:
i. That Mr. Fouad stole something from Mr. Gogna; ii. That Mr. Fouad used violence or threats of violence; and iii. That Mr. Fouad used or threatened to use violence for the purposes of carrying out the stealing.
[33] In his statement to the police, Mr. Fouad admitted to taking money from Mr. Gogna that was not his money and running away. The issue, therefore, is not whether he stole something, but whether he used a threat of violence and, if he did, whether it was for the purpose of stealing the money.
[34] To prove this element, the Crown must prove beyond a reasonable doubt that Mr. Fouad threatened to use violence. To establish that, the Crown must prove that Mr. Fouad said or did something by word, gesture, or conduct, that would cause a reasonable person in the same circumstances to apprehend or fear that s/he would be hurt: see: Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015).
[35] A threat of violence may be expressed or implied from words or conduct or from both words and conduct. Overt threats of violence are not necessary to constitute robbery. All the circumstances require consideration: see R. v. MacCormack, 2009 ONCA 72, 245 O.A.C. 271.
[36] In MacCormack, a man approached a teller at a bank requesting money. He had nothing in his hands. He had not threatened any violence. He did not display a weapon or make any threatening gestures. Nonetheless, the court found that the direct approach to a teller and demand for money without a withdrawal slip was conduct designed to intimidate and instill a sense of fear in its recipients, and ensure compliance with its demand. In those circumstances, the court found that the crime was robbery and not theft.
[37] I accept the evidence from the two Crown witnesses that there were two men involved in this incident, despite Mr. Fouad’s statement to the policed that he acted alone. Their evidence was consistent with respect to one man meeting them near their car and walking with them to the rear of the house, and a second man being present at the back of the house with something in his hand. Their evidence was also consistent that as they turned to their right after reaching the back of the house, the second male appeared. Their evidence regarding how many men were involved was not challenged during cross-examination. There is no reason or motive for either Mr. or Ms. Gogna to be untruthful or mislead the court regarding the number of men involved. On the contrary, there is motive for Mr. Fouad to be untruthful with the police regarding an accomplice in the incident.
[38] In this instance, there is no evidence of any violence or explicit threat of violence. The totality of the circumstances must therefore be considered. Mr. Gogna was directed by a male to attend at a particular street address on the understanding he was to meet one individual who was selling him a phone. It was dark out. He walked to the rear of a house where he unexpectedly met a second gentleman. That other gentleman held something in his hand, which both Mr. Gogna and his daughter thought was a gun. Although there was no specific threat, Mr. Gogna was told to give the man his money. At that same moment, his daughter was upset and was yelling at the man to leave her father alone. Mr. Gogna described himself as panicked, and he reacted by stepping back when he saw the second male.
[39] Mr. Fouad told the police that he told Mr. Gogna to give him the money and then he could go, and that his kids should just step away. He described Mr. Gogna as being really scared, and he thought it might have been because he was bigger and the tone in his voice.
[40] These were circumstances designed to intimidate and threaten Mr. Gogna to ensure compliance. Mr. Fouad admitted to holding a stick, although he denies pointing it at Mr. Gogna. He led Mr. Gogna from a public area to the rear of a home, out of public view, and in the dark. There, Mr. and Ms. Gogna encountered a second person that they both testified brandished something that was described as a pipe or something circular. Both Mr. and Ms. Gogna testified that they thought it was a gun. Although no threat was made and Mr. Gogna was only told to give the money, the situation on a whole implied that he would be allowed to leave once he gave the men his money.
[41] I find that given all of the circumstances, Mr. Gogna had reasonable grounds for his fear. It defies common sense that Mr. Gogna gave Mr. Fouad the money for any reason other than he felt compelled and threatened to do so.
[42] Mr. Fouad admitted in his statement to the police that he was the person who met Mr. Gogna at the house, escorted him to the rear, and demanded the money. This admission is consistent with Ms. Gogna’s evidence that the first male, i.e. the male that escorted them to the back of the house, was the one who demanded the money, however is inconsistent with Mr. Gogna’s evidence that it was the second male who demanded the money. I accept Mr. Fouad’s admission that he was the one who demanded the money. Based on Mr. Fouad’s admission, combined with the evidence from the Crown witnesses regarding the circumstances leading up to and at the time of the demand for the money, Mr. Fouad is guilty of robbery contrary to section 343(a) of the Criminal Code.
(b) Using an Imitation Firearm
[43] Section 85(2)(a) of the Criminal Code provides as follows:
85 (2) Every person commits an offence who uses an imitation firearm (a) while committing an indictable offence,
[44] To find Mr. Fouad guilty of using an imitation firearm while committing robbery, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:
- That Mr. Fouad committed robbery;
- That Mr. Fouad used an imitation firearm;
- That Mr. Fouad used the imitation firearm while committing the offence of robbery.
[45] I have found that Mr. Fouad committed the offence of robbery. The issue is whether he used an imitation firearm and did so while committing robbery.
[46] For the reasons that follow, I am unable to find, beyond a reasonable doubt, that Mr. Fouad is guilty of the offence under s. 85(2) of the Code.
[47] Both Mr. and Ms. Gogna testified that there were two males present during the incident. Both witnesses identified the first male as being the male that met them at the car and led them to the back of the house, and the second male as being the male they encountered to their right once they arrived at the back of the house. Both witnesses were also consistent that the second male was the male who brandished what appeared to them to be a gun. While their evidence was inconsistent with respect to the object that the second male was holding, they both confirmed that it was the second man, not the first, who appeared to have the object.
[48] Having accepted Mr. Fouad’s admission that he was the male who escorted Mr. and Ms. Gogna from the car to the back of the house, i.e., that he was the first male, I am unable to find that he is guilty of the offence of using an imitation firearm in the commission of an indictable offence. While Mr. Fouad, by his own admission, acknowledged that he was holding a stick at the time of the robbery, neither Crown witness identified him as the person who brandished what appeared to be a firearm. Further, Mr. Gogna, in his evidence, maintained that the first male had an iPhone box in his hands. I am not satisfied, beyond a reasonable doubt, that Mr. Fouad used an imitation firearm in committing the offence of robbery.
[49] For these reasons, Mr. Fouad is not guilty of using an imitation firearm while committing the indictable offence of robbery.
L. Shaw J. Date: July 18, 2018