Court File and Parties

COURT FILE NO.: CR-17-70000545-0000 DATE: 20181011 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MUHAMMAD IQBAL Accused

Counsel: Cara Sweeny, for the Crown Robert Lockhart, for the Accused

HEARD: May 22 – 25, 28 – 31, 2018 and June 3, 5 – 7, 2018, August 30, 2018, September 21, 2018 and October 11, 2018

B.A. ALLEN J.

REASONS FOR JUDGMENT

THE VOIR DIRE

The Charges and Basic Facts of the Incident

[1] The accused, Muhammad Iqbal, is charged on four counts: count 1, assault with a weapon, count 2, possession of a weapon, count 3, break and enter and count 4, theft under $5,000.00.

[2] At the material time, both Mr. Iqbal and the complainant, Anjun Fatima, lived at 43 Thorncliffe Park Boulevard, Toronto, Ms. Fatima on the first floor at unit 110 and Mr. Iqbal at unit 2102 on the penthouse floor. Mr. Iqbal resided with his parents and brother.

[3] The allegation is that early in the morning on October 26, 2015 Ms. Fatima was asleep in her bed with her young son and daughter. She was awakened by being shaken on the shoulder by a man standing beside the bed. Ms. Fatima screamed which awakened her daughter who started crying. The man fled the room. Ms. Fatima left the bedroom and called 911. Shortly thereafter the police arrived to speak to Ms. Fatima.

THE PROCEEDING

[4] Mr. Iqbal made a videotaped statement to the police during the evening of the day of the incident. The Crown seeks to admit the statement as a statement to a person in authority that was obtained voluntarily. The defence’s position is that Mr. Iqbal was detained during the interview. The defence seeks to exclude the statement as having been obtained in violation of Mr. Iqbal’s rights under s. 10(a) and 10(b) of the Charter. The claim is that Mr. Iqbal was not informed of the reason for his detention and his right to counsel. The defence seeks to have the statement excluded under s. 24(2) of the Charter.

[5] The trial proceeded as a judge-alone trial. On consent, the trial evidence and the Crown’s application to admit the statement and the defence’s application to exclude the statement for Charter violations were blended: [R. v. Sadikov, 2014 ONCA 752, at para. 30]; [R. v. Erven, [1979] 1 S.C.R. 926, at p. 932]; and [R. v. Gauthier, [1977] 1 S.C.R. 441, at p. 454].

[6] At the completion of the voir dire I excluded the statement with reasons to follow.

THE INVESTIGATION

Police Canvass of the Apartment Building

[7] The police reviewed CCTV video footage in the security office of the apartment building. The footage displayed the movements of a man the defence concedes is Mr. Iqbal. Mr. Iqbal is observed entering the main lobby of the building from the north hallway on the first floor where Ms. Fatima’s apartment is located. Later in the day, the security supervisor for the building, Erlis Guxholli, arrived and viewed the footage and confirmed the man in the footage was Mr. Iqbal.

[8] Police officers with the Major Crime Unit (“the MCU”) were tasked to canvass the apartment building to speak to people to see if anyone had heard or seen anything that could help the police. In the view of the police Mr. Iqbal was a person of interest. Officer Marcie Beaven-Brindle was one of the officers assigned to conduct the canvass.

[9] Photo images of Mr. Iqbal from the video footage were generated for use by the canvassing officers. A photo used for the canvass was shot from above Mr. Iqbal’s head in an elevator in the building. On October 26th at 1:00 p.m. Officer Beaven-Brindle knocked on the door of apartment 2102.

[10] Mr. Iqbal’s mother, Azra Iqbal, testified about the female police officer who knocked on the door of her apartment. She testified the officer asked about a man who was seen entering her apartment early that morning. Ms. Iqbal responded that she was not aware of this because she was sleeping when the officer knocked on the door. The officer showed her the photo.

[11] Ms. Iqbal testified she could not identify the person in the photos but said it resembled her son. She stated it was days later that she realized that the man in the photo was actually her son. Mr. Iqbal confirmed in testimony that the photos shown to his mother in court are the same photos shown to her by the police.

[12] Ms. Iqbal testified the police came to the door three or four times. She said her younger son answered the door the first time and at about 4:24 a.m. on October 26th. The younger son said the police were looking for someone in relation to the crime. Ms. Iqbal said she answered the door twice when the police knocked. The second time she thought was later in the afternoon.

[13] Mr. Iqbal also went to the door and spoke to the female officer. The officer asked him whether he knew about anything that had happened in the building. He denied knowing anything. He too stated that the police had come to the door over and over asking questions. Ms. Iqbal testified that later that afternoon she spoke to her son by phone and told him to go to the police to ask why they came to their door.

[14] Mr. Iqbal stated he was concerned about the police knocking so many times because his mother had had heart surgery two months earlier. Mr. Iqbal said he was also concerned because he observed the security supervisor, Mr. Guxholli, following him onto the elevator from the lobby and off of the elevator on the penthouse floor.

[15] Later that day, Officer John Apostolidis, an officer with the MCU, called Mr. Iqbal and asked if he could come to the police station for questioning. Mr. Iqbal told the officer he would attend and he did attend on October 26th at around 9:00 p.m. He testified he was not afraid that he had done anything wrong. He went immediately because he was afraid for his mother’s health. He did not want the police to come to the apartment door again.

Evidence of Investigating Officers

[16] Officers Apostolidis and Dimitrios Apostolopoulos, the latter also with the MCU, became involved in the investigation in the afternoon of October 26th. Those Officers were involved in interviewing Mr. Iqbal at the police station. They had learned the police had identified a “person of interest.”

[17] Officer Frank Olsen arrived at 43 Thorncliffe in the afternoon of October 26th. He learned through Officer Beaven-Brindle’s canvass that a “possible suspect” had been developed. He viewed the surveillance footage and occurrence report and learned the basic facts, that a break and enter had occurred in relation to a woman in apartment 110 and that a knife was involved.

[18] At 5:25 p.m., Officer Olsen generated a “Wanted for Identification” poster attaching five photos of the “possible suspect” obtained from the surveillance video. He posted the poster at the police station where other officers involved in the investigation could view it.

[19] Officer Olsen was asked on the voir dire what “a person of interest” refers to. The Officer stated a “person of interest” could be a “possible suspect”, a “possible witness”, or “possibly nothing.” He testified that as a Criminal Investigation Bureau investigator it would be routine for him to brief the MCU officers on the progress of the investigation, especially where it concerned a crime such as a break and enter.

[20] Other officers involved in the investigation variously referred to the male as a “suspect” or “person of interest”. In his notes about information he received, Officer Roger Marchak referred to the male as a “suspect”. Officer Melanie Lantaigne referred to the notes she made after watching the surveillance footage where she notes the male as a “person of interest.” She explained that a “person of interest” is someone the police are looking into, not someone who is deemed a “suspect.”

[21] In the afternoon of October 26th, Officer Apostolidis heard from Officer Apostolopoulos that a “person of interest” had been developed from the canvass conducted by Officer Beaven-Brindle. She had canvassed someone who looked similar to the male in the surveillance footage. Officer Apostolidis indicated that he learned from Officer Olsen’s posting and the Push Pin computer data which contained photos, the name of the male and his identity as Muhammad Iqbal and his date of birth and address.

THE INTERVIEW

Request for Mr. Iqbal to Attend

[22] Officer Apostolidis called Mr. Iqbal. On the voir dire the officer was asked what he said to Mr. Iqbal during the call. The officer testified that he explained to Mr. Iqbal about the investigation and asked if he was willing to attend at the police station to speak to them. Officer Apostolidis testified it was a brief call. Mr. Iqbal was cooperative. The Officer indicated he did not advise Mr. Iqbal of any consequences of not attending the police station and did not make any promises to him.

[23] Mr. Iqbal attended the station about one hour after he received the call. Officers Apostolidis and Apostolopoulos met him at the station and escorted him to a third floor interview room equipped with video recording equipment. Officer Apostolidis conducted the interview while Officer Apostolopoulos observed. The interview lasted from 8:57 p.m. to 9:22 p.m.

Mr. Iqbal’s Evidence

[24] Mr. Iqbal testified that when Officer Apostolidis called him to come to the police station, he felt he did not have a choice as to whether to do what the Officer requested. He testified he was also worried about the stress the police visits to the apartment were having on his mother’s health. He said he agreed to go promptly so he could quickly clear the matter up.

[25] After Mr. Iqbal gave his statement he was allowed to leave the station.

ANALYSIS

Voluntariness and Detention

The Parties’ Positions

[26] It is the Crown’s onus to show beyond a reasonable doubt that the statement was given voluntarily. The Crown submits it has met that burden.

[27] The Crown submits Officer Apostolidis’ language when he requested Mr. Iqbal attend the police station was not forceful or demanding. He asked Mr. Iqbal if he could come down to the police station, which in the Crown’s view, left Mr. Iqbal with the option of not attending if he did not want to. In the Crown’s view Mr. Iqbal had a choice whether to attend or not.

[28] Speaking of the contents of the interview the Crown also points to the fact that during the interview the Officer told Mr. Iqbal he did not have to give a statement. He advised him that he was entitled to seek the advice of a lawyer.

[29] The defence’s position is that Mr. Iqbal’s statement was not given voluntarily. When Officer Apostolidis called and asked him to attend Mr. Iqbal felt he had to go. Mr. Iqbal testified he had no choice.

[30] The defence’s position connects the issue of voluntariness to the issue of detention. Those concepts intersect where a person acquiesces to a direction or demand from a police officer to speak to them under circumstances in which the person reasonably feels they have no choice. The defence’s position is that the statement was given at the police station in circumstances in which Mr. Iqbal had no choice but to speak to the police.

The Basic Legal Principle on Voluntariness

[31] The Crown must prove the statement was not obtained by threats, promises, oppression or police trickery. The leading Supreme Court of Canada case, [R. v. Oikle, [2000] 2 S.C.R. 3] held:

First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness … If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[[R. v. Oikle, [2000] 2 S.C.R. 3, at para. 68]]

[32] There was in the Crown’s view no evidence of oppressive conditions or any promises or inducements in exchange for the statement. There was no police trickery or deceit to obtain evidence from Mr. Iqbal. Further, Mr. Iqbal was allowed to leave at the completion of the interview.

Voluntariness and the Request to Attend the Police Station

[33] To determine whether a reasonable person in the person’s circumstances would conclude that they had been deprived of their liberty of choice, certain factors may be considered: (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant: [[R. v. Grant, [2009] 2 S.C.R. 353, at para. 44]].

[34] In his notes, Officer Apostolidis refers to the conversation he had with Mr. Iqbal when he called him about coming to the police station. His notes indicate he asked whether Mr. Iqbal “could” come to the police station and further noted that Mr. Iqbal advised he will attend. On the voir dire, Officer Apostolidis testified he asked Mr. Iqbal if he “would like to” come down to the police station which suggests more choice on whether to attend or not.

[35] The Officer indicated his notes were a paraphrase of the conversation which I accept as reasonably the case when police officers make notes. However, in the end, and for reasons I outline later, when the totality of the circumstances are considered, I do not think much turns on the difference between the wording in the notes and those in the Officer’s testimony.

[36] Mr. Iqbal maintains, as he is entitled to, that he did not commit the break and enter and assault with a weapon. He said he went to the police not because he thought the police believed he was a suspect but to deal with the matter for the sake of his mother’s health.

[37] I find however, in spite of Mr. Iqbal’s denial that he believed he was a suspect, it would have been reasonable in the circumstances for Mr. Iqbal to have believed before he went to the police station that the police thought he was a suspect.

[38] Applying the [R. v. Grant] test, the circumstances that gave rise to the encounter with the police are important to consider. During the canvass, the police went to his apartment door on more than one occasion, two or three times. Mr. Iqbal was aware that at 1:00 p.m. on October 26th an officer was carrying a photo from the video footage which she showed to his mother. He also knew the police had come to the apartment early in the morning and spoke to his brother about the incident.

[39] Further, later in the afternoon, the security supervisor for the building, Mr. Guxholli, followed him onto the elevator and got off with him on the floor where Mr. Iqbal’s apartment is located. Mr. Iqbal also spoke to a police officer in the building before he received the call to come to the station.

[40] It would not be unreasonable for Mr. Iqbal to perceive he was regarded by the police to be a suspect in those circumstances.

[41] Looking at the police’s actions, they knocked on Mr. Iqbal’s apartment door on the first occasion very early at 4:24 a.m. in the morning on October 26th. They spoke to the younger brother at that time and told him they were looking for someone in relation to the crime. This visit was followed by at least one further visit and this time Officer Beaven-Brindle showed the mother a photo of Mr. Iqbal. Mr. Iqbal also went to the door on that occasion and spoke to Officer Beaven-Brindle.

[42] There is no suggestion here that the police conducted themselves improperly. This evidence is considered simply to inform a view of the situation Mr. Iqbal faced before Officer Apostolidis called him to go to the station.

[43] [R. v. Moran, [1987] O.J. No. 794 (Ont. C.A.)] addresses the issue of the language the police use in communicating with an individual from whom they wish to obtain information. Officer Apostolidis, according to his notes made shortly after he called Mr. Iqbal, were to the effect of asking if Mr. Iqbal “could come” to the station. Because of the proximity in time of the notes to the call, the words in the notes are likely more representative of what was said than the Officer’s memory at the voir dire two-and-a-half years later. However, even if I take the words “would like to come” the result would be the same. The Ontario Court of Appeal in [R. v. Moran] observed:

However, the language used by a police officer, although phrased in the form of a request, may, depending on the circumstances, be reasonably construed by the person to whom the request is made to be a direction or command. All the circumstances must be considered:

[[R. v. Moran, [1987] O.J. No. 794 (Ont. C.A.), at p. 258]]

[44] In the circumstances, I find reasonable Mr. Iqbal’s interpretation of Officer Apostolidis’ words as a direction which gave him no option. I make this finding irrespective of whether the words from the Officer’s notes or his testimony are considered.

Detention and Voluntariness

[45] The defence takes the position that Mr. Iqbal was detained while giving the statement at the police station.

[46] The Ontario Court of Appeal decided a case that assists with deciding the issue of voluntariness in circumstances similar to those in the case before me.

[47] In [R. v. Moran] the police were investigating the death of a woman. The police called a man who later became an accused and asked him to come and speak to the police. They asked whether he would prefer to speak to the police at his home or at the police station. Mr. Moran indicated he preferred the police station and stated he would be glad to assist the police. Towards the end of the interview the police asked the accused about his whereabouts on the day of the deceased’s death.

[48] After Mr. Moran gave his statement he was allowed to leave the station. The interviewing officer testified that he did not consider Mr. Moran to be a suspect at the time. The police officer asked Mr. Moran to return to the police station so another officer could review his previous statement with him. The second officer testified that at the time of the second interview Mr. Moran was not a suspect. He became a suspect when more evidence was gathered. He was arrested two months after the interviews.

[49] At a voir dire into the admissibility of his statements Mr. Moran testified that on both occasions, he thought he had to go to the police or the police would come after him.

[50] The Court held there need not be a threat or application of physical control to affect the voluntariness of a person’s choice whether to speak to the police or not. The Court held:

The application or threat of application of physical restraint is unnecessary to constitute detention within s. 10 of the Charter. Compliance with a demand or direction of a police officer by a person who reasonably believes that he has no choice to do otherwise constitutes a detention.

[[R. v. Moran, at pp. 255 – 256]]

[51] [R. v. Moran] went on to refer to a passage from the Supreme Court of Canada in [R. v. Therens, [1985] 1 S.C.R. 613]. That case also considered the issue of whether a person who is subject to a demand or direction by a police officer may reasonably regard himself or herself as free to refuse to comply.

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not,… Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.

[[R. v. Therens, [1985] 1 S.C.R. 613, at para. 57]]

[52] Short of physical restraint of liberty there is restraint captured by the notion of “psychological detention”. The defence takes the position that Mr. Iqbal was psychologically detained while he was giving the statement at the police station.

[53] The Supreme Court of Canada in [R. v. Grant] provides a useful formulation of the meaning of psychological detention.

[54] The Court observed that psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. The Court observed that in cases where there is no physical restraint or legal obligation the individual may not be certain whether they have been detained: [[R. v. Grant, at paras. 30 - 31]].

[55] Where police are authorized to question individuals to further an investigation there are limits to this power. [R. v. Moran] addresses the police authority:

In determining whether a person, who subsequently becomes an accused, was detained at the time he was interviewed by the police, it is important to bear in mind that a police officer when endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information can be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, as a general rule, he has no power to compel the person questioned to answer.

[56] [R. v. Moran] cites a non-exhaustive list of factors to consider in determining whether the person was detained during questioning:

a) The precise language the officer uses in requesting the person who subsequently becomes an accused to come to the police station, whether the person was given a choice;

b) Whether the accused was escorted to the police station or went on his own;

c) Whether the accused left at the end of the interview or was arrested;

d) The stage in the investigation: whether the police had already decided that a crime had been committed and that the accused was the perpetrator;

e) Whether the police had reasonable and probable grounds to believe the accused had committed the crime being investigated;

f) The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the person was confronted with evidence of his guilt; and

g) The subjective belief by the person that he or she was detained, although relevant, is not decisive, the question is whether he reasonably believed he was detained.

Pertinent Aspects of Mr. Iqbal’s Interview

[57] Officer Apostolidis testified that he proceeded with the interview as part of a continuing investigation. He was tasked to interview a male that other officers concluded looked similar to the male in the surveillance footage. He stated that he was not told that Mr. Iqbal was a suspect or a witness. He considered Mr. Iqbal a “person of interest”, someone who might have information to assist with the investigation.

[58] Officer Apostolidis explained that he gave Mr. Iqbal a caution as a witness. The Officer did not advise Mr. Iqbal that he was a “suspect”. He advised Mr. Iqbal: “At this point, we’re speaking to anybody who may have some information and that’s why you are here.” Those words were followed by a request that Mr. Iqbal affirm that he will tell the truth. Officer Apostolidis then read to Mr. Iqbal a formal caution to a witness as follows:

[Y]ou may be a witness at a trial concerning the events you describe in the statement and if at that time you recant your statement and claim it to be false, it can be used at a trial and you may be liable to prosecution under s. 137 of the Criminal Code for fabricating evidence, okay? Do you understand that? And I’ll read something else up here, you must understand that it is a criminal offence under s. 139 and s. 140 of the Criminal Code to obstruct justice or to commit public mischief by making a false statement to police during an investigation. Okay?

[59] After reading the caution, Officer Apostolidis went on to state:

Also please understand you don’t have to give this statement and if anybody has persuaded you in any way to give this statement, I want you to forget about all that. Okay? I only want you to give this statement if you freely choose to do so. Okay?

[60] Mr. Iqbal said “yes” in answer to questions as to whether he understood and answered “yes” in response to the Officer’s word “Okay?”

[61] Just before the substantive portion of the interview began Officer Apostolidis gave a further caution as follows:

Further thing that I’ll ask you is you can also have, you also have a right to counsel. Okay? And what that means is that if you wish to have a lawyer, I have to, it’s my duty to inform you that you have the right to retain and instruct counsel without delay if you feel that you need to. Do you understand that?

[62] Mr. Iqbal’s response to the question whether he understood the caution was “Right.”

[63] Later in the interview Officer Apostolidis began asking Mr Iqbal about his appearance, about his shaved head. The Officer then showed Mr. Iqbal photos from the surveillance footage.

Officer Apostolidis then asked:

Okay. Um - now at this point here I just want to show you a picture, okay? And it, can tell me if you know or even seen this person here, before. It’s just the person there in that photograph.

Mr. Iqbal answered:

Nope.

The Officer responded:

No?

Mr. Iqbal answered:

I can’t see who this is.

The Officer asked:

No? You don’t recognize that person?

Mr. Iqbal answered:

No.

Officer Apostolidis went on to say:

No? What about this one?

Mr. Iqbal answered:

I have never seen him.

Later, Officer Apostolidis asked:

Okay and you’ll agree with me that this person looks very similar to you?

Mr. Iqbal responded:

No.

The Officer then asked:

Can you tell me what’s the difference?”

Mr. Iqbal answered:

Can’t really see, I can’t see his face.

The Officer asked:

Okay. How about this one here? I want you to take, you can pick it up, you can look at it.

Mr. Iqbal responded:

I don’t know who this is.

Officer Apostolidis then asked:

Okay. Well – when I look at these pictures I do see a resemblance, Okay? Now I’m not trying to accuse you of anything but ---

Later the Officer said:

Okay. Now I’m not one hundred percent sure on the photo, okay, as you said it’s not very clear. I still think there’s a resemblance there, is there anything that you can show me that tells me that’s not you on that photo?

Mr. Iqbal responded:

I don’t know what to show you.

Application of the R. v. Moran Factors

[64] In applying the [R. v. Moran] factors I will deal first with those that I find most affect the issue of Mr. Iqbal’s choice and whether he was detained.

[65] I have already determined Mr. Iqbal believed, and it was reasonable to believe, he had no choice but to go to the police station when Officer Apostolidis asked him.

[66] In terms of the stage of the investigation, when Mr. Iqbal was at the police station, it was clear that the police believed a crime had been committed. As I will address below, Officer Apostolidis treated Mr. Iqbal like a “suspect” rather than a mere “person of interest” or “potential witness”.

[67] Regarding the nature of the questions asked, for the most part the questions asked were open-ended. Some were general in nature allowing Mr. Iqbal to freely give answers. However, the questions were not always in that form. In the critical area of the identity of the person who committed the crime, Officer Apostolidis became accusatory and somewhat confrontational.

[68] As is evident from the exchanges between the Officer and Mr. Iqbal, he showed Mr. Iqbal surveillance photos and when Mr. Iqbal denied knowing the depicted person, the Officer showed him more pictures, telling Mr. Iqbal the man in the photos looked like him. Despite Mr. Iqbal’s denials, Officer Apostolidis tried to encourage Mr. Iqbal to admit the person was him. Mr. Iqbal continued to deny it was him. As it turns out, those photos were of Mr. Iqbal. But that is of no consequence to the Officer’s duty to Mr. Iqbal.

[69] The Officer brought up Mr. Iqbal’s resemblance to the photos several times during the interview. I find in doing so Mr. Iqbal was confronted with evidence pointing to his guilt. The questions were not indicative of a general investigation. There was accusatory questioning that focused on Mr. Iqbal: [[R. v. Moran, at p. 261]].

[70] Regarding whether Mr. Iqbal reasonably believed he was detained, the answer to that inquiry is affirmative. In the first place, Mr. Iqbal felt he had no choice but to go to the police station. So it would be reasonable for him to believe he had to remain and answer the Officer’s questions.

[71] Officer Apostolidis told Mr. Iqbal he did not have to give a statement and should only give the statement if he freely chose to do so. However, that caution came after Mr. Iqbal was asked if he consented to being recorded. It came after he was asked to give an affirmation to tell the truth and after he was cautioned about the criminal implications of not telling the truth.

[72] That is, the formal part of the interview had already begun when Mr. Iqbal was told he did not have to speak to the police. That could reasonably have brought a feeling of obligation on Mr. Iqbal’s part to continue with the interview. The caution about choice would have been better placed at the start of the interview. As well, a more emphatic caution that Mr. Iqbal was free to leave before the interview started or at any time thereafter would have offered a more definite indication of choice.

[73] Regarding the factor of whether the police had reasonable grounds to arrest, Officer Apostolidis said he believed they did not. Mr. Iqbal was allowed to leave after the interview. I do not find that allowing Mr. Iqbal to leave the station following the interview negates the fact of Mr. Iqbal’s detention and his lack of choice during the course of the interview.

[74] There was no coercion or physical force applied by Officer Apostolidis. But I find the lack of choice and the power inherent in police authority is sufficient to establish psychological detention.

[75] Officer Apostolidis testified he considered Mr. Iqbal a “person of interest” and a “potential witness” rather than a “suspect”, as did other officers involved in the investigation. Mr. Iqbal was given a caution as a witness and told the police were speaking to anyone who may have some information. However, I do not think the importance lies in the label that the police applied to Mr. Iqbal. Crucial to determining Mr. Iqbal’s status in the investigation while he was giving his statement, is how he was treated as reflected through the questions he was asked.

[76] On the face of the questions asked in relation to the surveillance photos I find it is obvious Officer Apostolidis treated Mr. Iqbal like a suspect. This adds more support to the view that Mr. Iqbal was psychologically detained.

Conclusion on Voluntariness and Detention

[77] I find the Crown did not succeed in proving beyond a reasonable doubt that Mr. Iqbal voluntarily provided the statement to the police. The evidence establishes that Mr. Iqbal was psychologically detained in the police station during the course of his statement.

Right to be Informed of Reasons for Arrest

[78] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons for arrest. I found that Mr. Iqbal was psychologically detained by the police. This gives rise to his rights under s. 10(a) and places an obligation on the police to protect those rights.

[79] The Supreme Court of Canada held that the general expectation is that the arresting officer upon making the arrest will inform the person of the reason for the arrest. This applies as well to detaining officers. The Court observed that protection under s.10(a) has not been satisfied if the accused does not understand the basis for their apprehension, detention or arrest and the extent of their jeopardy: [[R. v. Latimer, [1997] 1 S.C.R. 217, at para. 31]].

[80] Officer Apostolidis informed Mr. Iqbal that the police were conducting an investigation for a break and enter. He did not inform him that the crime also involved an assault with a weapon, a very serious charge under the Criminal Code. Mr. Iqbal could not have understood the extent of his jeopardy when he was giving the statement. For that I find Mr. Iqbal’s rights under s. 10(a) were violated.

Right to Counsel

[81] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[82] The right to counsel is comprised of an informational component and an implementation component. The officer: (a) must provide the detainee with a reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances; and (b) except in urgent or dangerous circumstances, refrain from attempting to elicit evidence from the detainee until they have had a reasonable opportunity to retain and instruct counsel: [[R. v. Bartle, [1994] 3 S.C.R. 173, at p. 301]].

[83] Those components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.

[84] For the right to be properly exercised the accused must fully understand and appreciate the consequences of the decision to speak to counsel. An accused must be informed of the offence for which they were charged as part of the informational component: [[R. v. Black, [1989] 2 S.C.R. 138]]. The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay: [[R. v. Brydges, [1990] 1 S.C.R. 190]].

[85] Specifically, the implementation component requires the police to inform the accused of the right to counsel of his choice and to 24-hour access to duty counsel or a lawyer provided by Legal Aid. It is a serious error not to inform the accused of the existence of Legal Aid or duty counsel especially in light of the fact that such information is readily at hand: [[R. v. Brydges and R. v. Black]].

[86] Officer Apostolidis informed Mr. Iqbal that he had the right to retain and instruct counsel without delay if he felt he needed to. However, Mr. Iqbal was not fully informed of the offences the police were investigating. Mr. Iqbal was not told of a very serious offence which would have informed his decision whether to seek counsel. He was not informed of the 24-hour availability of duty counsel and Legal Aid nor given an opportunity to exercise his rights.

[87] I find Officer Apostolidis clearly violated Mr. Iqbal’s rights under s. 10(b) of the Charter.

THE SECTION 24(2) ANALYSIS

[88] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.

[89] [R. v. Grant] set down three inquiries that must be balanced: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in adjudicating the case on its merits.

[90] The seriousness of the breach falls along a spectrum. On one end are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights: [[R. v. Grant, paras. 72 and 74]].

[91] While not the most serious of breaches, I do not find the violations to be minor or inadvertent.

[92] My concern starts with the fact Officer Apostolidis gave Mr. Iqbal the impression he was being interviewed as a “potential witness”. He was given a caution as a witness and told he was being interviewed because the police were talking to people who might have information to assist the investigation. I find that misguided Mr. Iqbal into thinking the police regarded him as only a potential witness.

[93] As the interview progressed, and at several points during the statement, the Officer confronted Mr. Iqbal with surveillance photos of himself and told him the person looked similar to him. In spite of Mr. Iqbal’s denials, the Officer persisted in showing one photo after the other at different times insisting there were similarities with Mr. Iqbal.

[94] In spite of the police calling Mr. Iqbal a person of interest or a potential witness, he was treated like a suspect in the interview. Before the interview, the police had generated the photos from the surveillance footage to use in canvassing the building. This in my view means that Mr. Iqbal was in fact a suspect. This increased the police’s obligation to inform him of the crimes being investigated and to protect Mr. Iqbal’s rights to silence and to obtain and instruct counsel.

[95] Instead, Officer Apostolidis fell short of his duty. His failure to advise Mr. Iqbal of the extent of the seriousness of the crimes under investigation is not a trivial matter. That failure is connected to, and served to exacerbate, the failure to properly inform Mr. Iqbal of his right to counsel. Knowing his jeopardy would have allowed Mr. Iqbal to decide whether he wished to exercise that right or not before he spoke to the police.

[96] These were not technical or minor violations but in no way is there a suggestion of bad faith on Officer Apostolidis’ part. That notwithstanding, I find the court should not be seen to condone this type of conduct by the police.

[97] The second inquiry considers the impact of the breach on the Charter-protected interests of the accused. I find the impact of not knowing one’s actual status in the police investigation and not being aware of the seriousness of the crimes being investigated when being interviewed by the police is also not trivial. Not being properly advised of rights to counsel under those conditions adds to the impact on Mr. Iqbal’s rights. This left Mr. Iqbal in an unnecessarily vulnerable position.

[98] I find the impact, while not the most serious, is such that the court should dissociate itself from the police conduct.

[99] The third inquiry requires the court to look at the seriousness of the offence.

[100] The court must balance the implications of excluding evidence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.

[101] The offences involving breaking and entering and assault with a weapon are serious offences. Looking at the Crown’s case, I find the statement sought to be excluded does not contain evidence that provides conclusive proof of Mr. Iqbal’s guilt. The statement is largely exculpatory. Excluding the statement would therefore not in any fundamental way impair the court’s search for the truth at trial: [[R. v. Harrison, [2009] 2 S.C.R. 494, at paras. 81 and 82]].

[102] The court must engage in a fact-based balancing of the three lines of inquiry. The balancing must consider the effect that excluding the evidence would have on the long-term repute of the administration of justice.

[103] I find the seriousness of the breaches in combination outweigh the value of the statement for the Crown’s case. Given the nature of the violations, admitting the statement in the circumstances would bring the administration of justice into disrepute.

DISPOSITION

[104] I exclude the statement by Mr. Iqbal.

THE TRIAL

THE INCIDENT

[105] Ms. Fatima is a 35-year old married mother of two small children, a son age 10 and a daughter age 6 at the time of the incident. Her husband was away in Edmonton attending a pharmacy internship conference. The family occupied apartment 110 in the building. The apartment is on the ground floor.

[106] Mr. Iqbal was 28 years of age at the time of the incident. He worked as a taxi cab driver for Beck Taxi. He parked his taxi at the rear of the building at 43 Thorncliffe outside the north exit.

[107] On Sunday evening October 25, 2016, the son attended a birthday party. The family returned from the party around 11:00 p.m. The son returned with birthday cake. The mother shared some cake for the three of them before they went to bed. The mother left the remainder of the cake on the dining room table on a plate covered with a microwave cover. She left on the table the knife she used to cut the cake, a kitchen paring knife with a purple handle about 10 cm long from end to end.

[108] Ms. Fatima had both children sleeping with her in their parents’ bed because her husband was away. She estimated that they did not go to bed until quite late, around 2:00 a.m. The next thing Ms. Fatima indicated she remembered was that she was in a deep sleep and she thought she felt a hand on her right shoulder shaking her to wake her up. She testified she did not turn to look. She really did not know what had happened so she returned to her deep sleep. She then felt another more forceful shake of her shoulder and this time she woke up. When she felt the shakes on her shoulder, Ms. Fatima said she was lying on her left side facing her children with her back to the bedroom door

[109] Ms. Fatima testified it was about 3:16 a.m. when she was awakened by the shake on her shoulder. The notes of an officer who attended her home after she made a 911 call indicate that Ms. Fatima told him this occurred at approximately 3:00 a.m. to 3:30 a.m. Ms. Fatima agreed there is a discrepancy in the times. But she pointed out she was in a state of shock and just approximated the time.

[110] Ms. Fatima saw a man standing next to the left side of the bed by the night table. When she saw him she began to scream. She did not want him to get closer to her so she screamed louder. Ms. Fatima said the man put his forefinger to his lips, moved close to her face, and made the sound, “Sh-sh-sh” to stop her from screaming. Ms. Fatima continued screaming loudly.

[111] Ms. Fatima testified the man got very close to her face and took out a knife and put it to his lips to signal her to be quiet. She could see only the blade which she estimated was about three inches long. He pointed the knife towards her about seven to ten cm from her chin. The knife did not touch her body. Ms. Fatima explained that the knife touched the comforter that covered her. She began yelling and screaming madly. She began moving her hands and the comforter. The man then fled the room.

[112] Ms. Fatima said her screams were so loud they woke up her daughter and she started crying with her eyes closed. On cross-examination Ms. Fatima testified she took about 30 seconds to put her daughter to sleep before she left the bedroom. The son did not wake up while the man was in the room. She described him as a very sound sleeper.

[113] Ms. Fatima estimated she woke up at about 3:16 a.m. She testified about the time that elapsed between the time the man left the bedroom and when she got out of bed. She estimated 3 to 5 minutes after she put her daughter to sleep.

[114] When Ms. Fatima entered the living area she observed that the automatic closing mechanism to the front door leading to the hallway was broken. She testified that the door locks with a dead bolt and she recalled locking it before she went to bed. When she came out of the bedroom she saw that door was half opened. Ms. Fatima got frightened and called 911. She testified on cross-examination that about three minutes passed between the time she saw the man and when she called 911. Ms. Fatima made the 911 call at 3:21 a.m. The dispatcher remained on the phone until the police arrived. The police arrived shortly after the call.

[115] Ms. Fatima testified there is a glass sliding door that opens into her backyard. She found the back door was open. She explained that the latch on that door was inoperable and that before the night of the incident the door would not lock. Ms. Fatima explained that the sliding glass door was about half opened when she viewed it after she left the bedroom. She recalled closing that door and putting on the latch before she went to bed.

[116] During the 911 call Ms. Fatima could not describe the knife in any detail. She explained that at that time she had not noticed that the knife she left on the dining table was missing. It was only after the police arrived and asked if anything was missing from the apartment that Ms. Fatima noticed the knife with the purple handle she had left on the dining room table with the cake was missing.

[117] Ms. Fatima gave a statement to an officer who arrived on the scene. She also attended the police station later in the afternoon on October 26th and gave a video recorded statement.

[118] Defence counsel put to Ms. Fatima that she was very upset about being separated from her husband. Ms. Fatima agreed that this was the first time she and her husband had been separated and that it was a challenge to be alone with the children. She confirmed that she went out to visit him in Edmonton in December. Her husband was very concerned about her and the children.

[119] Defence counsel suggested this circumstance gave Ms. Fatima a reason to fabricate the story about the incident. He put to Ms. Fatima that she created the story in order to establish a situation that would justify her going to see her husband. Ms. Fatima denied this.

[120] The 911 recording was played during Crown counsel’s re-examination. Ms. Fatima began to cry from the witness stand. It was clear from Ms. Fatima’s voice on the recording that she was in an agitated and very disturbed state when she spoke to the dispatcher. She became breathless at times. Ms. Fatima testified she was so scared because her husband was not there to protect her and the children.

IDENTIFICATION EVIDENCE

[121] On cross-examination, Ms. Fatima testified the bedroom lights were off. The bathroom and hallway lights were on and the bathroom door was open. Ms. Fatima testified that the bedroom was well-lit because the bathroom was right next to the bedroom.

[122] Ms. Fatima provided a description of Mr. Iqbal to the police in a statement on October 26th: male, brown, late 30s, hair short, dark in colour, leather jacket, approximately 5′ 6″, thin build, with a big head and big eyes. She explained in cross-examination that she meant his eyes were wide open. Not that he had bulging eyes.

[123] A photo lineup was conducted. One of the pictures depicted Mr. Iqbal. The surveillance photos of Mr. Iqbal show a man with a shaved bald head. Mr. Iqbal, as he appeared in court was balding on the top with very sparse hair in that area and dark hair on the sides of his head. The photo of Mr. Iqbal in the photo lineup depicted him with a full head of black hair. Ms. Fatima did not pick Mr. Iqbal from the photo line-up.

[124] Ms. Fatima also made an in-dock identification of Mr. Iqbal as the man she saw in her bedroom.

[125] Ms. Fatima gave a description of the man in answer to defence questions. She said he had big eyes that were opened wide. He was kind of bald. She testified the man was too close to her face for her to see the rest of his body. She described his skin as “not fair”, “not brown”, “not white”. She described his skin as “wheatish coloured.” Ms. Fatima testified she had not seen the man before the incident.

[126] Defence counsel asked Ms. Fatima what she meant when she described the man’s skin colour as “wheatish”. Ms. Fatima testified she meant not dark brown, but rather light brown. Ms. Fatima indicated the police never showed her a surveillance photo of Mr. Iqbal. She saw his photo for the first time on a Global TV internet media release.

[127] Ms. Fatima testified that Mr. Iqbal had a scarf on. Defence counsel pointed to surveillance photos of Mr. Iqbal in the elevator and she agreed he was not wearing a scarf. Ms. Fatima testified the man had on a dark or black jacket. Upon questioning by defence counsel at trial after she agreed the jacket looked blue. She thought the jacket the man was wearing was leather but upon viewing photos at trial, she agreed it was not.

[128] Defence counsel referred Ms. Fatima to her testimony at the preliminary inquiry which took place on June 27, 2017. He pointed to the fact that she told the police and testified at the preliminary inquiry that the man in the bedroom had a moustache. Defence counsel then showed Ms. Fatima photos taken from surveillance footage captured just after the incident and she agreed it did not appear he had a moustache in the photos.

[129] Defence counsel also referred in her preliminary inquiry testimony to Ms. Fatima agreeing that she told the police the man had hair on his head. He pointed to the transcript where it indicates she told the police about the colour of the man’s hair. She agreed at the preliminary inquiry and at trial that she told the police the man had “white and grey, not black” hair. Ms. Fatima then agreed with defence counsel’s suggestion that Mr. Iqbal sitting in court does not have white and grey hair, only black hair. She observed that she saw him a year and a half ago and he could have dyed his hair.

[130] Defence counsel questioned Ms. Fatima about the man’s nose. He referred to the fact that she told the police the man had a “sharp nose”, an “elongated kind of nose”. Crown counsel directed the Court’s attention to a later part of the statement where Ms. Fatima says: “It was kind of sharp, but not too sharp, but it was an elongated kind of nose.” Defence counsel then suggested, looking at a photo of Mr. Iqbal in the elevator that he had a normal-sized nose, not elongated, with which Ms. Fatima agreed.

[131] Regarding the man’s age, defence counsel directed Ms. Fatima’s attention to the memo notes of Officer Marchak, an officer who arrived early at the scene in response to the 911 call. Ms. Fatima agreed that she told the Officer that the man was in his 40s confirming what the Officer had written in his notes. Mr. Iqbal was age 28 on October 26th. Ms. Fatima agreed there is a big age difference between ages 28 and 40.

THE VIDEO SURVEILLANCE FOOTAGE

Close in Time to the Time of the Incident

[132] Officer Jason Ngo was responsible for amassing the relevant footage from various video cameras in the building. He collected the footage from cameras in the elevator, from the main first floor lobby, from the north exit, from the rear exit and at the exit from the elevator on the penthouse floor where Mr. Iqbal’s apartment was located.

[133] The footage and time stamps on the footage corresponded with times Mr. Iqbal was in the various locations in the building. The relevant images were clipped from the footage and put together in a sequence on a seven-minute DVD. The times on the cameras are not entirely in sync. At points the footage jumps in time by a few minutes when the recording on the DVD moves from one camera to another. Officer Ngo also took a series of still photos of certain locations where Mr. Iqbal is seen in the building. He took photos of doors and other areas on the exterior of the building.

[134] Officer Ngo testified about the images and times captured on the footage during the morning of October 26th. Each of the following times is in the morning hours:

2:50:33 (elevator camera) – Mr. Iqbal gets on elevator on the 19th floor and presses button to go down and arrives at the 1st floor the lobby; he goes right and enters the north hallway; 2:47:54 (main lobby camera) – Mr. Iqbal enters the north hallway 2:49:49 (main lobby camera) – Mr. Iqbal is entering the main lobby 2:49:51 (main lobby camera) – Mr. Iqbal is in the main lobby after leaving the north hallway where apartment 110 is located 2:50:12 (rear door camera) – hallway in that area is depicted 2:50:18 (rear door camera) – Mr. Iqbal is at the rear door operating an electronic device in his hands

*2:50:45 (rear door camera) – Mr. Iqbal opens the rear door and bends down to pick something up from the ground which he wedges in the door to keep it open

*3:21:48 (lobby camera) – Mr. Iqbal is back in the lobby having walked from the north hallway where apartment 110 is located.

*3:21:58 (lobby camera) – Mr. Iqbal is heading back toward the north hallway

*3:22:11 (lobby camera) – Mr. Iqbal re-enters the lobby

*3:22:37 (lobby camera) – Mr. Iqbal enters the elevator 3:26:08 (elevator camera) – Mr. Iqbal is on the elevator 3:26:59 (elevator camera) – Mr. Iqbal gets off on the penthouse floor where his apartment is. 3:52:55 (elevator camera) – Mr. Iqbal is re-entering the elevator 3:53:44 (elevator camera) – Mr. Iqbal is on the elevator and presses the button to get off on the 2nd floor 3:51:32 (north hallway exit camera) – Mr. Iqbal exits the north hallway exit 3:51:29 (north exit exterior camera) – Mr. Iqbal comes down steps from 2nd floor exits to the parking area 3:52:50 (exterior camera) – a taxi is seen leaving the parking lot

• The times most relevant to Mr. Iqbal’s whereabouts

MR. IQBAL’S EVIDENCE

On Examination-in-Chief

[135] Mr. Iqbal does not deny that he is the man seen leaving the north hallway at 3:21:48 a.m. where Ms. Fatima’s apartment is located, which is around the time the intruder left her apartment and she made the call to 911.

[136] Looking back before that time, Mr. Iqbal confirmed that on October 26th at 2:50:26 a.m. he got onto the elevator on the 19th floor, two floors below the penthouse on the 21st floor where he lived. He explained that he went into the stairwell on the 19th floor at the opposite end of the hall from his apartment to smoke a cigarette. Mr. Iqbal confirmed he got onto the elevator on the 19th floor and then got off at the main lobby. He indicated he went from the lobby down the north hallway on the first floor.

[137] Mr. Iqbal stated that he was on route to the north door with the intention of going to his taxi parked in the lot outside the north door. This he said was the most direct route to his taxi. He testified he had left his cell phone in the car and was going to retrieve it.

[138] Mr. Iqbal testified that when he reached the north door, he did not go out. He said he realized he did not have his fob key to get back in through the north exit if he went outside. He testified he turned around and went back down the north hallway to the main lobby. Mr. Iqbal confirmed that he walked from the main lobby to the rear exit. He confirmed that at 2:50:45 a.m. he opened the rear door and bent down to pick something up from the ground to prop the door open.

[139] Mr. Iqbal testified he was operating his iPad Mini 2 while he was at the rear door. He said he was likely playing a game.

[140] Mr. Iqbal explained why he chose to exit the rear exit rather than the north exit. He said that outside the rear exit there is always debris like sticks that can be used to prop the door open if a person does not have a fob key. He said this is not true of the north exit where to get to that exit a person has to go up several stairs from the first floor to a platform outside that door which Mr. Iqbal explained is always clear of debris that could be used to prop the door open.

[141] Mr. Iqbal testified he exited the rear door at 2:50:45 a.m. and went to his taxi where he found his cell phone. He indicated that he noticed that he had missed calls from his girlfriend. He decided to stay in the car and call his girlfriend. He testified he remained in the car for about 25 minutes.

[142] The video footage from the main lobby camera next shows Mr. Iqbal entering the lobby at 3:21:48 a.m. after leaving the north hallway where Ms. Fatima’s apartment 110 is located.

[143] Mr. Iqbal gave an explanation of where he was for the period from 2:50:45 a.m. until 3:21:48 when he is seen leaving the north hallway. There are no cameras in the north hallway.

[144] Mr. Iqbal testified that after the 25 minutes in his car, he did not re-enter the building through the rear exit. He explained that it was cold out and he was wearing shorts, sandals and a jacket so he decided to enter another door at the end of the parking lot he said closer to where his car was parked. Mr. Iqbal went down the stairs at that exit to the B2 basement level.

[145] Mr. Iqbal explained that he did not go through the rear exit that he had propped open because he did not know whether the door would still be propped open after he had unexpectedly spent 25 minutes in his car talking to his girlfriend. Mr. Iqbal said he thought the security personnel or someone else might have removed the stick. So he decided he would go through the door nearer to his car. He indicated that the door was propped open allowing him to enter. He said that door was frequently propped open.

[146] Importantly, there are no security cameras on the B2 level; hence no surveillance footage of the path on the B2 level that Mr. Iqbal claims he took after he entered that door. He testified when he re-entered the building he was aiming to go back to his apartment on the penthouse floor.

[147] Mr. Iqbal walked down the pathway in the parking area at the B2 level and reached the garbage room door. To reach the lobby and elevator on the B2 level, Mr. Iqbal would have to pass through the garbage room door to proceed on his way to the lobby area on that floor. Contrary to the evidence given by the security supervisor that for safety and security reasons that garbage room door was always closed and locked in his experience, Mr. Iqbal testified that door is frequently open. He testified however that when he reached the garbage room door the door was closed and locked.

[148] The door is opened by using a PIN code. Mr. Iqbal had the PIN code. He explained that another taxi driver had earlier given him the PIN code which he said he saved in his cell phone. He entered the PIN code on the key pad and the door rolled open. Mr. Iqbal went through the garbage room and into the B2 lobby where the elevator is located.

[149] Mr. Iqbal did not use the B2 elevator to go up to his apartment. He walked through a door on the B2 level that led to the locker storage area. He said the door to that room was unlocked. He said he ran through the locker room hallway to the north exit at the B2 level up the stairs to the first floor. The locker room hallway runs in the same direction and is the same length as the north hallway on the first floor.

[150] Mr. Iqbal explained he could not get reception on his cell phone from the B2 level. He did not want to wait for the elevator. He said he thought it would be faster to get reception if he went through the locker room and went up the stairs at the north end of the locker room. He testified that when he reached the B1 level reception returned to his phone and he could then send emails and receive voice mail.

[151] At 3:21:48 a.m. the lobby camera on the first floor captures Mr. Iqbal emerging from the north hallway on the first floor and entering the main lobby. As noted earlier, there are no cameras in the north hallway. Mr. Iqbal then walked towards the garbage chute on the first floor, he said, to dispose of paper wrappers in his pocket. The main lobby camera shows Mr. Iqbal arrive at the elevator at 3:22:36 a.m. He confirmed that he entered the elevator from the main lobby and that the time on the clock in the elevator was 3:26:06 a.m. Mr. Iqbal confirmed that he exited the elevator on the penthouse floor at 3:26:59 a.m.

[152] At 3:52:55 a.m. Mr. Iqbal is observed getting on the elevator and at 3:53:44 a.m. getting off the elevator on the 2nd floor. He travelled down the north hallway on the second floor to the north exit where he had to go down several stairs to get to the north exit door. Mr. Iqbal explained that going out the north exit was the most direct route to his taxi. He got into his taxi. He testified he does not know where he went in his taxi.

On Cross-Examination

[153] The Crown cross-examined Mr. Iqbal as to why he did not go out the north hallway door on the first floor when he was going out to get his phone at 2:50:45 a.m. She suggested that were he to have exited that door he would have been captured on the exterior camera outside that door. The Crown then pointed to the image at 3:51:23 a.m. on the video footage that shows a camera that would have captured him if he had gone out that door. Mr. Iqbal denied that he decided not to exit that door for that reason.

[154] The Crown also cross-examined him on his evidence as to why he did not find something to prop the north hallway door open. The security supervisor and another resident called by the defence testified that the doors to the building are often propped open by debris. Mr. Iqbal denied this was the case with the north exit.

[155] The Crown pointed in the footage to debris on the floor and ground near the north exit to challenge Mr. Iqbal’s evidence that there was no debris to prop that door open. Mr. Iqbal responded that what was shown on the video is paper that would not work as a prop. Mr. Iqbal eventually conceded that he does not know whether people prop that door open. He said he never saw it propped open himself.

[156] The Crown also challenged Mr. Iqbal on his evidence that he was playing a game on his iPad Mini 2 when he arrived at the rear door. She put to him that the size of the device he had in his hands indicates it was a cell phone and not an iPad Mini 2. She questioned why he would get up so early in the morning to get his cell phone from his car and take his iPad with him to play a game. His answer was that he does not remember why.

[157] Crown counsel pointed to an image of Mr. Iqbal at 2:50:17 a.m. that shows him holding and manipulating the device with both hands. Crown counsel displayed a steno pad and suggested that an iPad Mini 2 is about the size of the steno pad. Crown counsel requested Mr. Iqbal measure the steno pad. He estimated it was about 5 ½ ″ - 6 ″ x 8½ ″ - 9 ″. A Google search of an iPad Mini 2 indicates the size is 7.87 ′′ x 5.3 ″. Crown counsel suggested the steno pad is a bit larger than the iPad Mini 2 and a lot larger than the cell phone depicted on the surveillance image.

[158] Mr. Iqbal denied he was using his cell phone on the video footage and insisted he was going to his car to get his cell phone. The Crown put to him that he did not actually go to his car. Mr. Iqbal disagreed.

[159] The Crown asked Mr. Iqbal the name of the girlfriend he was talking to from his car. Mr. Iqbal gave her first name “Severjana” and said he did not know her last name. The Crown questioned how he could not know the name of a woman he was charged with assaulting on three occasions, a girlfriend he had dated for several years. Mr. Iqbal responded that at the time of the incident that girlfriend had come back to him for about one month. But said he did not know her last name.

[160] Crown counsel asked why he remained in the car to speak to her, why he did not return to his apartment. He explained that while he was in the car, he was waiting to see if he could get any calls. Crown counsel questioned how many taxi fares he could possibly get at 3:00 a.m. on a Sunday morning. Mr. Iqbal insisted he was talking to his girlfriend and waiting for taxi calls.

[161] In answer to why he took the rather circuitous route through the B2 level, he testified the door to the B1 level was locked. The Crown asked why Mr. Iqbal would have the code to the garbage room. He responded that if he did not have a fob key, he could go through a propped open door, enter the building and go through the B2 level without being detected by any cameras. Without going through the garbage room door he would not be able to reach the B2 lobby and elevator. He conceded it was a safe way to sneak into the building undetected.

[162] Crown counsel questioned Mr. Iqbal about why he walked by the B2 level elevator and entered the locker storage area instead of getting on the elevator and going to his apartment. She questioned the length of time he would have to wait for the elevator after 3:00 a.m. She pointed out the route he chose to take was a long one - down the hallway of the locker room, then up to the first floor, then down the north hallway to the main lobby - instead of just getting on the elevator to the penthouse floor. Mr. Iqbal said he did this to get reception on his cell phone.

[163] Crown counsel referred to the surveillance footage at 3:21:48 a.m. where Mr. Iqbal is emerging out of the first floor north hallway and is not holding his cell phone. She suggested that in the images up to 3:22:00 a.m. and beyond he does not have his cell phone in his hand. Mr. Iqbal approached the large video monitor in the courtroom and agreed he had nothing in his hand. Then he said he thought he had something in his hand.

[164] Crown counsel referred to surveillance images where Mr. Iqbal appears on the elevator around 1:50 p.m. on October 26th with a shaved head and wearing a change of clothes. Mr. Iqbal said he did not remember when he shaved his head. He said he used to shave his head often at that time. Crown counsel also pointed out, and Mr. Iqbal agreed, that he had changed his clothes from his cut-off shorts to jeans and a white shirt with blue shoulders. Mr. Iqbal denied the Crown’s suggestion that he was trying to change his appearance from the morning.

[165] Crown counsel pointed out that at 1:54:49 p.m. on October 26th the elevator camera captures Mr. Iqbal with the white and blue shirt and bald head. The elevator cameras capture him at 2:18:22 p.m. wearing a striped shirt with a bald head. Mr. Iqbal also insisted the white shirt was dirty so he changed it. Mr. Iqbal testified that by 2:18 p.m. he saw the police in the building and that he had had a conversation with a police officer at that time.

[166] Mr. Iqbal testified when he walked down the north hallway on the first floor past Ms. Fatima’s apartment he did not hear any screams. He did not see anyone running out of Ms. Fatima’s apartment into the hallway at 3:21:48 a.m. Crown counsel put to Mr. Iqbal that he is attempting to convince the Court that he was walking down the north hallway at the same time Ms. Fatima reported someone just left her apartment and that he did not see or hear anything. Crown counsel asked whether he saw the door to apartment 110 open at about 3:20 a.m. or 3:21 a.m. and he responded that he did not. He testified he did not see a woman look outside apartment 110.

DEFENCES

The Alibi Defence

[167] The defence did not put the Crown on notice about the evidence that Mr. Iqbal spent 25 minutes in his taxi after he left the building by the rear exit at about 2:50:45 a.m. to go to his taxi supposedly to get his cell phone. The Crown did not become aware of the 25-minute period until Mr. Iqbal was on the stand testifying in-chief. Mr. Iqbal’s evidence is that when he retrieved his phone in the taxi he learned that his girlfriend had called him. So he returned her call from the taxi and spoke to her for 25 minutes.

[168] It was following that 25-minute period that Mr. Iqbal contends he took the route through the B2 level and eventually emerged at 3:21:48 a.m. in the north hallway. There is otherwise no evidence, no surveillance footage, of what Mr. Iqbal was doing after he is captured by a camera leaving the rear exit 2:50:45 a.m. He is next captured by the main lobby cameras coming from the north hallway past Mr. Fatima’s apartment very close in time to when the intruder left the apartment and within seconds of Ms. Fatima calling 911.

[169] The Crown raised the evidence of the 25 minutes in the taxi as alibi evidence.

[170] All alibi evidence must be disclosed to the Crown: [[R. v. Cleghorn, [1995] 3 S.C.R. 175]]. This requirement is an exception to the accused’s right to remain silent. The concern here is “the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial”: [[R. v. Noble, [1997] 1 S.C.R. 874]]. Disclosure must be adequate and timely. If the disclosure does not satisfy those requirements, the trier of fact may draw an adverse inference when weighing the alibi evidence at trial: [[R. v. Noble, at p. 111]].

[171] Alibi evidence must be evidence that is determinative of the final issue of guilt or innocence of the accused. It must be dispositive of guilt or innocence: [[R. v. Tomlinson, 2014 ONCA 158, at paras. 48 and 49]]. From the defence’s viewpoint the evidence of Mr. Iqbal’s actions during the 25 minutes is not alibi evidence because it is not dispositive of guilt or innocence.

[172] The Crown sought an adjournment of the trial to allow an opportunity for the Crown to investigate the alibi. Crown counsel proposed that she would seek access to Mr. Iqbal’s cell phone records either on consent or if consent is not extended, by a production order. The defence opposed the adjournment arguing the 25-minute period is not alibi evidence. I disagreed and granted the adjournment.

[173] The defence presented evidence of his route through the B2 basement level to establish that he could not have been the intruder who entered Ms. Fatima’s apartment because he was elsewhere either in the B2 basement or on his way from that level when the crime occurred.

[174] The defence had video footage prepared by a person they called as a witness. The footage was recorded while the trial was underway. Its stated purpose was to retrace the route Mr. Iqbal claims he took through the B2 level and to establish there are no security cameras on that level. The footage covers the route from the entrance to the garage outside the garbage room through the garbage room to the lobby on that level and through the locker room to the north exit from the locker room.

[175] The Crown was aware of that part of the alibi.

[176] Times and timing are critical elements in this case. Where Mr. Iqbal was and what he was doing during the time leading up to the crime and at the time of the crime could determine if he was in Ms. Fatima’s apartment. The credibility of Mr. Iqbal’s evidence about that 25-minute time period is critical to a final determination in this case.

[177] I find it would be an artificial limitation not to consider as part of his alibi the time period immediately before Mr. Iqbal’s evidence about his trip through the B2 level. I believe the credibility of his alibi evidence rests in looking at the totality of the evidence of where Mr. Iqbal was and what he was doing from the time he exited the rear door at 2:50:45 a.m. and was seen coming from the north hallway at 3:21:48 a.m. The 25-minute time period provides context to the B2 basement portion of Mr. Iqbal’s alibi.

[178] On June 7, 2018 I allowed the adjournment until August 30th to permit the Crown to either obtain the consent of Mr. Iqbal or failing that to obtain a production order for the cell phone records. The scheduled date took into account defence and Crown counsel’s availability and my unavailability until the week of August 27th.

[179] Mr. Iqbal originally consented to disclosure of the records and then disagreed as to the time period for the records requested by the Crown. The Crown ultimately did not obtain the records as the phone company did not maintain records as far back as 2015.

[180] As I found the 25-minute period to be alibi evidence which was not disclosed to the Crown I am entitled to draw an adverse inference about the credibility of that evidence. I will address the reasonableness of that defence later in the decision.

The Fabrication and Dream Defences

[181] The defence advanced two other defences.

[182] The defence argues that Ms. Fatima fabricated the incident as an excuse to go visit her husband in Edmonton. The defence contention is that Ms. Fatima missed her husband because his stay in Edmonton was the first time she and her husband were apart and she was alone with the children. Ms. Fatima denies this.

[183] The Crown was able to disprove that defence beyond a reasonable doubt. Apart from having no air of reality on the facts, this defense is not sensible. It seems quite an extreme move for a wife to make up such a dramatic and detailed account to justify going to be with her husband. I do not find fabrication to be a reasonable defence.

[184] The defence further argues that Ms. Fatima dreamt the incident and that it actually did not happen. The Crown was also able to disprove that defence beyond a reasonable doubt. There is no air of reality to that defence either. The 911 tape clearly illustrates the extreme fear Ms. Fatima was experiencing when she spoke to the dispatcher. She was very detailed in her account of the incident. There were also other facts that support the reality of her experience. The patio door and the front door to her apartment were open when she got out of bed to call the police.

FORENSICS

[185] No DNA for Mr. Iqbal was put in evidence. The police investigation of the building and the garbage in the garbage room did not disclose the knife with the purple handle or any other evidence related to the crime.

[186] The Crown’s position is that Mr. Iqbal entered Ms. Fatima’s apartment through the patio door at the rear of the premises.

[187] An expert evidence voir dire was conducted to inquire into one partial fingerprint that the police located and photographed on the aluminum frame of the patio door. Both the defence and Crown called expert evidence to testify about the value of the print for determining whether it is that of Mr. Iqbal. An enhanced version of the photo of the print was used in the analyses by the experts. Both experts found the fingerprint was not viable for the purposes of comparison in the police database, the Automated Fingerprint Identification System (“AFIS”). The print in both opinions is not suitable for identification.

[188] The defence expert, Shane Turnridge, an AFIS analyst with Peel Police Services, concluded, despite the poor quality of the print, that it was suitable for exclusion, that is, suitable to exclude Mr. Iqbal as the donor of the print. However, Mr. Turnridge’s report did not document the basis for his opinion on exclusion. The Crown expert, Christianne Lis, a supervisor with AFIS, opined that the poor quality and quantity of the print made it unsuitable for both identification and exclusion.

[189] I find the expert evidence had a neutral value. I find there is no basis to find that the partial print was of sufficient quality and quantity to assist with determining whether or not Mr. Iqbal was the donor of the print.

ANALYSIS

Overview of the Issues

[190] I find there is no question that Mr. Iqbal was the man walking down the north hallway where Ms. Fatima’s apartment was located. Ms. Fatima’s evidence is that she was awakened by the intruder at about 3:16 a.m. The male left the bedroom quickly. According to Ms. Fatima it took her about three to five minutes to settle her daughter and she then left the bedroom. She made the call to 911 at about 3:21 a.m. at about the same time Mr. Iqbal is seen emerging from the north hallway and entering the main lobby. There is no other person captured on video leaving the north hallway at that time.

[191] Mr. Iqbal’s evidence is that he was not the male who entered Ms. Fatima’s apartment. He says he was elsewhere at the time the crime was committed. Mr. Iqbal gave an explanation of where he was for the period from 2:50:45 a.m. until 3:21:48 a.m. when he is captured by the main lobby cameras emerging out of the north hallway where Ms. Fatima’s apartment 110 is located. There are no cameras in the north hallway. Mr. Iqbal presented the alibi evidence hoping to establish that he emerged from the north hallway after leaving the B2 level and mounting the north stairwell stairs to the main floor, not after leaving Ms. Fatima’s apartment.

[192] This is not a purely circumstantial case. There is an identification issue which I find works in conjunction with the circumstantial evidence of Mr. Iqbal’s whereabouts at the time the crime was committed. Mr. Iqbal contends that Ms. Fatima identified the wrong person.

[193] Ms. Fatima told one of the officers who arrived in response to the 911 call that the intruder was in his 40s. Mr. Iqbal was age 28 on October 26th. Ms. Fatima gave a description of Mr. Iqbal to the police in the afternoon of October 26th. Her description was male, brown, late 30s, hair short, dark in colour, leather jacket, approximately 5′ 6″, thin build, with a big head and big eyes.

[194] The surveillance photos of Mr. Iqbal show a man with a shaved bald head. Mr. Iqbal, as he appeared in court, was balding on the top with very sparse hair in that area and dark hair on the sides of his head.

[195] I find the fact that Ms. Fatima did not identify Mr. Iqbal on the photo lineup is of little consequence since the photo of Mr. Iqbal was taken years earlier when Mr. Iqbal had a full head of black hair. Equally, her in-dock identification of Mr. Iqbal as the intruder is of minimal consequence on its own since it is well-known that in-dock identification is notoriously unreliable and should be given limited weight: [[R. v. Izzard (1990), 54 C.C.C. (3d) 252 at 255-56 (Ont. C.A.)]] and [[R. v. Reitsma, [1998] 1 S.C.R. 769, at paras. 56-59]]. In-dock evidence is “deceptively credible, largely because it is honest and sincere”: [[R. v. Hibbert, [2002] 2 S.C.R. 445, at para. 50]]. I do not accept Ms. Fatima’s in-dock identification alone as evidence pointing to guilt.

[196] Ms. Fatima gave descriptions of Mr. Iqbal’s hair at the preliminary hearing as “white and grey, not black” and agreed that sitting in the courtroom Mr. Iqbal had black hair. Of course, as Ms. Fatima pointed out, Mr. Iqbal could have dyed his hair over the year and a half since the crime was committed. Ms. Fatima did not describe to the police that Mr. Iqbal was bald on top. But at trial Mr. Iqbal pointed out that at the time of the offence he routinely shaved his head as the surveillance footage shows. Ms. Fatima also gave evidence at the preliminary inquiry that the intruder’s skin was “wheatish” in colour and that he had a moustache at the time in question. She explained what she meant was that his skin appeared light brown.

[197] In assessing the identification evidence, the context in which Ms. Fatima formed a description of the intruder must be considered. I also have regard to the time lapse between the crime and the descriptions she gave in the years afterwards.

[198] Ms. Fatima described her experience as very frightening. The incident happened quickly and within minutes the intruder ran out of the room. Ms. Fatima testified there was sufficient light in the bedroom coming from the lights in the hallway and the adjacent bathroom. She said there was sufficient light to see what the intruder looked like. He stood close to her face. It is understandable why Ms. Fatima might not be able to recount the finer details of his description given the speed with which the incident occurred and her shock and fear at an intruder being in her bedroom in the middle of the night with a knife trained on her while she lay in bed with her children.

[199] I find Ms. Fatima’s initial description to the police of a male with brown skin, large eyes, dark hair, wearing a dark jacket, about 5′ 6″, in height, thin meets the general description of Mr. Iqbal as he appears in the surveillance footage and at trial. That is the description closest in time to the incident.

[200] The fact that Ms. Fatima described him as being in his late 30s rather than his late 20s; the fact she might have at some later point described his jacket as black leather rather than dark blue and not leather; the fact she did not have a fine-tuned description of his nose and the exact shade of brown of his skin and looking back thought he might have had a moustache, I find can be explained by the exigencies of her experience and the passage of time.

[201] Inconsistencies in witness testimonies on minor matters or matters of detail are not unexpected. Witnesses are not held to the standard of absolute recall of every detail. Inconsistencies on peripheral details clearly do not have the impact on credibility that inconsistencies on material matters have. The defence went to great lengths to highlight what I consider to be many minor inconsistencies in various other areas of Ms. Fatima’s evidence, to name a few: small discrepancies in time her estimations; the positioning of the children in the bed; whether Ms. Fatima moved the microwave cover; when she discovered the knife was missing; and in the evidence about her settling her daughter down.

[202] Even if I were to find inconsistencies in those areas, I would not conclude they devalued Ms. Fatima’s credibility in any substantial way. Those are matters that do not bear directly on the material issue to be decided as to whether Ms. Fatima correctly identified Mr. Iqbal as the intruder who committed the crime.

[203] Any deficiency or doubt that might linger in determining the identity of the male intruder from the identification evidence adduced, I find, can be tempered if a material link is established between the intruder and the male who was walking down the north hallway shortly after the intruder fled the apartment at the approximate time Ms. Fatima was calling 911.

Conclusion on the Alibi Defence

[204] For reasons that will become clear later, I do not accept Mr. Iqbal’s alibi defence. I arrive at this conclusion from the accumulated effect of problems I have with the credibility and plausibility of Mr. Iqbal’s account of how he found himself walking down the north hallway at 3:21:48 a.m. on October 26th. No singular problem with his evidence on its own leads me to my conclusion.

The Cell Phone

[205] Mr. Iqbal testified that at 2:50:45 a.m. he left the rear door of the building to go to his taxi to retrieve his cell phone. He is seen on the video footage looking down holding an electronic device in both hands. Mr. Iqbal claims the electronic device is an iPad Mini 2 and that he might have been playing a video game.

[206] The Crown’s position is that the device is a cell phone. During cross-examination of Mr. Iqbal, the Crown challenged Mr. Iqbal’s evidence by positing that an iPad Mini 2 is much larger than the device Mr. Iqbal is holding. She presented a steno pad to Mr. Iqbal which he measured to be close in size to the dimensions for an iPad Mini 2 device featured on the company website. An iPad Mini 2’s dimensions are 7.87" x 5.3".

[207] Apart from viewing the video footage in court of Mr. Iqbal carrying the electronic device, I was able to view it for myself several times in deciding this case. Albeit in relation to an identification case, the Supreme Court of Canada spoke on the value that video footage can have to a trier of fact particularly when it can be replayed and stopped for closer examination. I think the principle enunciated in relation to the identification of a person is generally applicable to other types of determinations involving video recordings. The Court observed:

The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped to study the pertinent frames.

[[R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 29]]

[208] Applying the guidance from [Nikolovski] to the circumstances of identifying the type of electronic device, my conclusion is that the device is much smaller than the size of an iPad Mini 2. The device is clearly visible in the video as Mr. Iqbal approaches and stands at the rear door. Judging from the proportion of the size of the device to the size of Mr. Iqbal’s hands it is evident that the size of the device is close to the size of his hands. That is, the device is much smaller than an iPad Mini 2. The device Mr. Iqbal is manipulating is more closely akin to the size of a cell phone. I believe Mr. Iqbal was carrying a cell phone.

[209] Then the question is, why would Mr. Iqbal not be truthful about what he had in his hands as he left through the rear door?

[210] The cell phone takes on a pivotal role in Mr. Iqbal’s alibi. To retrieve his cell phone is the reason he left the building through the rear door; it is his reason for remaining in the taxi after he retrieved messages from his girlfriend and speaking to her for 25 minutes while he says he was waiting for taxi calls; it is the reason he took the circuitous route up from the B2 level to the north hallway on the first floor, so he could get reception to retrieve voice mail and email messages about taxi customers. The cell phone provides the reason that he was not the intruder that invaded Ms. Fatima’s home.

[211] So if he was not going to his taxi to retrieve his cell phone because he already had his cell phone that raises the question of where he was going and what he did after he left the building at 2:50:45 a.m. I am entitled to draw an adverse inference in relation to the 25-minute alibi and I do draw the adverse inference that at trial Mr. Iqbal concocted the 25-minute stay in his taxi. One thing that becomes clear on all the evidence is that Mr. Iqbal was not telling the truth about going to his taxi to retrieve his cell phone. He is therefore hiding something he does not want the Court to know.

[212] There are other credibility problems with the evidence about the cell phone. On cross-examination as to what the girlfriend’s name is he gave only her first name, Severjana, saying he did not know her last name. The fact is that woman had been his girlfriend for several years and he had been charged with assaulting her on three occasions. To be clear, the evidence about those assaults plays no part in my decision on guilt of the offence before the court. I rely on that evidence solely in relation to the credibility issue related to the phone call.

[213] It is not plausible that Mr. Iqbal would not know his longstanding girlfriend’s name. Again, Mr. Iqbal was not being truthful. Perhaps, he did not want her to be identified and called as a witness to contradict his evidence about speaking to her in the early morning hours on October 26, 2015.

[214] On re-examination, defence counsel asked him if he was sure it was his girlfriend he was speaking to. Mr. Iqbal changed his evidence and said he was talking to his wife in Pakistan and then changed his evidence again and said he was not certain because it happened a long time ago. This throws another level of suspicion on his evidence about talking to someone from his taxi. He seemed palpably certain in-chief and on cross-examination as to whom he was talking and moments later was no longer certain whether it was his wife in Pakistan or not.

[215] There is another problem with his evidence connected to his cell phone. Concerning his evidence about what he did after entering the door that leads to the garbage room on the B2 level, Mr. Iqbal stated that rather than use the elevator from the lobby on that level which he had to pass by on his route, he chose to go through a locker room and up some stairs to the main floor north hallway where Ms. Fatima’s apartment happened to be. Mr. Iqbal’s reason for not taking the elevator he said was because the elevator might take too long to come and he wanted to rush and get reception on his cell phone so he could receive voicemails about taxi customers.

[216] Now again, I find this evidence implausible and Mr. Iqbal’s credibility lacking. It was after 3:00 a.m. when he reached the B2 basement level. He was not able to satisfactorily explain how it could be that there would be such demand for the elevator at that time in the morning requiring a long wait for it. Nor in my estimation, especially in view of the early morning hour, was he able to reasonably justify his concern that if he took the time to take the elevator he might lose taxi customers.

[217] It does not stand to reason that Mr. Iqbal would take the route through the locker room, the length of which he actually said he ran, and then up two levels of stairs to the first floor, in order to take the elevator to his apartment. The question is why he did this rather than just take the elevator from the B2 level straight up to the 21st floor, especially if he was in a hurry to access his cell phone. Mr. Iqbal’s evidence simply does not have the ring of truth.

The Alibi Route to the First Floor North Hallway

[218] Mr. Iqbal admitted that the route he says he took through the B2 level was not covered by surveillance cameras. One could move undetected through that area. Pursuing that route allowed Mr. Iqbal to emerge from that level and then out of the north hallway on the first floor into the first floor lobby without any surveillance footage of where he had been just before he was seen on the lobby camera. As noted earlier, there are no cameras in the north hallway. There is a camera at the north hallway exit and there is no image of him on that camera footage at the relevant time.

[219] When Mr. Iqbal exited the building at 2:50:45 a.m., he left from the rear exit on the first floor. He propped the door open with a stick which action is depicted on the camera at that exit. He said he did this because he did not have his key fob with him. Assuming he went out for some reason, the question is why he did not re-enter the building through the rear exit that he propped open. The police evidence was that it was still propped open when they arrived.

[220] Mr. Iqbal testified that he did not return through the rear entrance because he was not certain the door was still propped open after the 25 minutes in the taxi and he did not have his fob key to get back in. Mr. Iqbal said he chose another door, the door that led from the parking lot to the garbage room on the B2 level. He said he thought it would be propped open because it often was.

[221] According to Mr. Iqbal’s version of events, his only objective at that early hour after he left his taxi was to get back to his apartment on the 21st floor. However, his route in getting there was indirect and circuitous. There is no reasonable explanation as to why he went down to the B2 level rather than through a door that would take him to the first floor level. He did not bother to check the rear door he had actually propped open for his return. Mr. Iqbal was more than equally taking the chance that the other door would not be open.

[222] As noted earlier, the defence entered into evidence video footage they requested be taken by a person who they called as a witness to show the route Mr. Iqbal travelled and to establish there are no security cameras on that level. The footage covers the route from the entrance to the garage outside the garbage room through the door to the garbage room, into the lobby on that level and through the locker room to the north exit from the locker room.

[223] The garbage room at the B2 level is often locked requiring a code to enter. On Mr. Iqbal’s evidence, it just so happens Mr. Iqbal had previously been given that code by another taxi driver allowing him to pass through that room to the B2 lobby. This seems a rather cumbersome and strained venture given that Mr. Iqbal did not have to go to the B2 level to get to his apartment. I have already dealt with the credibility problems with Mr. Iqbal not taking the elevator on the B2 level. Mr. Iqbal’s evidence about his route through the B2 level simply does not have the ring of truth.

[224] Altogether, I find Mr. Iqbal’s evidence about his alibi route, combined with the various fabrications related to his cell phone to be strains on credulity. I believe Mr. Iqbal concocted a rather elaborate account of his whereabouts in order to mislead the court as to where he was at the time of the invasion into Ms. Fatima’s apartment.

A Reasonable Alternative Fact Scenario

[225] I arrive at my decision on Mr. Iqbal’s guilt in the context of the totality of the evidence I saw and heard at trial.

[226] Mr. Iqbal was emerging out of the north hallway at 3:21:48 a.m. By the time Ms. Fatima looked out from her front door the intruder was gone. She called the police and spoke to the dispatcher within minutes after the intruder fled the apartment.

[227] Mr. Iqbal’s presence in the north hallway immediately after the incident, together with the fabricated stories connected to his cell phone and his concocted evidence about his route through the B2 level, lead me to the irresistible conclusion that Mr. Iqbal was the intruder.

[228] Ms. Fatima testified credibly that the sliding glass patio door was opened about halfway after the intruder left. She explained that the latch on the door was not working properly so the door would not lock at that time. She stated however that she had closed that door before she went to bed.

[229] Ms. Fatima further testified that the front door of her apartment leading to the north hallway was also half open after the intruder left. There were also problems with that door. The mechanism that automatically shuts the door after one exits was also defective meaning that when one left through that door one would have to shut the door behind them. Ms. Fatima had also shut and locked that door before she went to bed.

[230] I accept the Crown’s theory that the intruder entered the apartment through the patio door, came into her bedroom and pointed the purple-handled knife Ms. Fatima had left on the dining table close to her face. When she continued to scream loudly and her daughter began crying the intruder fled the apartment through the front door not closing the door behind him. That intruder was Mr. Iqbal.

[231] Mr. Iqbal is shown on the video footage after the incident with different clothing on than is depicted on the footage before the incident. It appears that he changed his top more than once. He is also depicted in the post-incident footage with a clean shaved head which did not appear to be the case in the earlier footage. Those facts alone do not go far in proving an attempt to evade blame as the person who committed the offence. It is not especially unusual for people to change their clothes more than once in a day. As for the shaved head, Mr. Iqbal testified he frequently shaved his head at that time.

[232] However, those changes in Mr. Iqbal’s appearance tend to add to his deceptive scheme when considered together with the fabrications related to his cell phone and the concocted story about how he came to be in hallway near apartment 110 at the same time the intruder fled the apartment.

CONCLUSION ON BREAK AND ENTER

[233] This is a case involving direct eyewitness identification evidence and circumstantial evidence related to Mr. Iqbal’s whereabouts.

[234] I accepted Ms. Fatima’s credible direct eyewitness evidence that identified Mr. Iqbal as the man she saw in the apartment pointing a knife at her. Her identification evidence was bolstered by the Crown’s ability to disprove the alibi defence by challenging as unreasonable the inference that Mr. Iqbal was elsewhere when the incident occurred. The only reasonable conclusion that can be drawn from the totality of the evidence is that Mr. Iqbal was in the apartment and not outside or passing through the B2 level when the crime was being committed: [[R. v. Villaroman, [2016] 1 S.C.R. 1000]].

[235] Viewing the evidence on a whole, I find there is nothing that raises a reasonable doubt in my mind about Mr. Iqbal’s guilt of breaking into and entering Ms. Fatima’s apartment and I find him guilty of breaking and entering a dwelling place under s. 348(1)(b) of the Criminal Code.

CONCLUSIONS ON THE OTHER CHARGES

[236] Regarding the charge of assault with a weapon, I accept Ms. Fatima’s credible evidence that she left the purple-handled knife on the dining room table before she went to bed and that it was that knife that Mr. Iqbal held close to her face touching the comforter on her bed. What constitutes an assault is set out in s. 265(1) of the Criminal Code. An assault can be effected through the intentional non-consensual application of force; an attempt or threat of non-consensual application of force; or the interference with a person while carrying a weapon. Mr. Iqbal held the knife close to Ms. Fatima and placed it to his lips and said “sh-sh-sh” in a threatening manner. I find Mr. Iqbal’s actions fall under the third category of assault and I therefore find him guilty of assault with a weapon under s. 267(a) of the Criminal Code.

[237] Regarding possession of a weapon, s. 4(3) of the Criminal Code provides that actual possession of a thing requires actual physical custody of the object and knowledge of the nature of the object while in the person’s custody. Mr. Iqbal had actual possession of the knife when he threatened Ms. Fatima with it and I find him guilty of possession of a weapon under s. 88(1) of the Criminal Code.

[238] Regarding the theft charge, Ms. Fatima’s evidence is that she left the purple-handled knife on the dining room table before she went to bed and Mr. Iqbal used it to threaten her. Ms. Fatima discovered the knife was no longer on the dining room table after the intruder fled. It was not found anywhere in the apartment. The only reasonable inference that can be drawn from those facts is that Mr. Iqbal took the knife belonging to Ms. Fatima with him when he left the apartment and I find him guilty of stealing the knife valued under $5,000.00, contrary to s. 334(b) of the Criminal Code.

VERDICT

[239] The Crown was able to prove all charges and disprove all defences beyond a reasonable doubt. I find Muhammad Iqbal guilty on count 1, assault with a weapon, count 2, possession of a weapon, count 3, breaking and entering, and count 4, theft under $5,000.00.

[240] Convictions will be entered accordingly.

B.A. ALLEN J.

**Released:** October 11, 2018