Court File and Parties

COURT FILE NO.: CR-17-6548 DATE: 20190522 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HAKEEM MOHAMED Defendant

Counsel: Amy Barkin, for the Crown Uma Kancharla for the Defendant, Hakeem Mohamed

HEARD: April 15-18, 23-26, 29-30 and May 1-3, 2019

Reasons for Judgment

MCKELVEY J.:

Introduction

[1] On the night of January 12/13, 2017, police were called to attend at the SpringHill Suites Hotel in Vaughan as a result of a complaint from a young woman who alleged that she had been sexually assaulted and had been the subject of human trafficking. After the police arrived, they learned that two of the alleged offenders had been staying at the nearby Pinecrest Motel. Police attended and saw a minivan taxi leaving the motel. This taxi was subsequently stopped. The two passengers in the taxi, A.P. and Adrian Scott, were arrested and a Glock handgun was found underneath the passenger seat of the minivan. The gun as well as some cellphones including a pink iPhone were seized.

[2] On February 2, 2017, Hakeem Mohamed was arrested and charged with sexual assault. Subsequently, data was extracted from the pink iPhone which had been seized from Adrian Scott in the early morning hours of January 13, 2017. There were a series of photos found in the iPhone showing what the Crown alleges is Mr. Mohamed holding the same Glock firearm which was seized by police on January 13, 2017. Mr. Mohamed was then charged with a series of firearms offences. Specifically, the firearms charges against Mr. Mohamed include a charge:

THAT on or about the 12th day of January in the year 2017 at the City of Vaughan in the Regional Municipality of York did, without lawful excuse, possess a restricted firearm, namely a handgun, without being the holder of a license permitting such possession and the holder of registration certificate for the said firearm, contrary to Section 91, subsection (3) of the Criminal Code of Canada.

[3] Mr. Mohamed was also charged with possession of a restricted firearm contrary to s. 92(3) of the Criminal Code, as well as handling a restricted weapon, contrary to s. 86(3) of the Criminal Code. Finally, Mr. Mohamed was charged:

THAT on or about the 12th day of January in the year 2017 at the City of Vaughan in the Regional Municipality of York did, carry a weapon, or an imitation of a weapon for a purpose dangerous to the public peace, contrary to Section 88, subsection (1) of the Criminal Code.

[4] The Crown advised at the commencement of trial that the complainant in relation to the assault, sexual assault, and human trafficking charges could not be located. As a result, at the request of the Crown, these charges against both Mr. Mohamed and his co-defendant, Adrian Scott were dismissed. The charges with respect to firearm possession against Mr. Mohamed continued.

The Photographs

[5] The photos in question were all found on the pink iPhone, which the Crown alleges were taken on the evening of January 12, 2017, at the SpringHill Suites Hotel in Vaughan. There are a total of eight photographs. Each of the photographs shows Adrian Scott with a pink iPhone equipped with a camera identical to the one which was seized from him in the early morning hours of January 13, 2017. Further, each of the photos shows three individuals who have been identified as A.P., Mr. Mohamed, and Adrian Scott. It is Mr. Scott who is holding the pink iPhone camera which is pointed towards a mirror. Two of the photographs have been marked as Exhibits 6A and 6B.

[6] The defence acknowledges that it is Mr. Mohamed who is shown as the centre person in Exhibit 6A. They do not acknowledge that it is Mr. Mohamed shown in the centre of Exhibit 6B. However, I have concluded there is no reasonable doubt that the person in the centre of all of the photographs is Mr. Mohamed. Mr. Mohamed who is standing in the centre of the photograph marked as Exhibit 6A is wearing a dark blue Canada Goose jacket with a distinctive green trim. In Exhibit 6B, an individual is seen wearing the exact same jacket and is flanked by the same two individuals, A.P. and Adrian Scott. Although the individual’s face is partially obscured in the other photographs by the hood of the Canada Goose jacket, there are sufficient similarities which satisfy me that the person in the middle continues to be Mr. Mohamed.

[7] In Exhibit 6A, Mr. Mohamed is seen smoking some type of cigarette and the person in the other photographs also appears to be smoking. Further, the height of the individual shown in the centre of all the photographs is similar and is slightly shorter than Adrian Scott. The colouring of this person appears to be identical. Finally, the data extraction for all of the photographs indicates that all of the photographs were taken in rapid succession between 3:33:45 on the morning of January 12, 2017 to 3:34:47 making it virtually impossible for someone else to have exchanged clothing and taken Mr. Mohamed’s place in the photos.

[8] In all of these photographs, Mr. Mohamed is seen holding what appears to be a Glock handgun. The Crown alleges that this is the same handgun seized by the police at the time of the arrest of A.P. and Adrian Scott. This arrest occurred at 1:13 a.m. on the morning of January 13, 2017.

[9] At trial, there was also an issue raised by the defence as to what camera had taken these photographs. I have no hesitation in concluding that the photographs were taken by the pink iPhone which according to the arresting officer was found on Adrian Scott at the time of his arrest in the early morning hours of January 13, 2017. Mr. Scott is seen in the photographs taking the photograph into a mirror with a pink iPhone which is identical to the one which was seized from him shortly afterwards.

The Evidence at Trial

[10] At trial, the Crown called the following witnesses:

1. Staff Sergeant David Mitchell. Mr. Mitchell was the York Regional Police Officer who arrested A.P. and Adrian Scott at 1:13 a.m. on the morning of January 13, 2017.
2. Detective Constable Ashley Smith. Officer Smith was the York Regional Police Officer who gave evidence about what is seen on two surveillance cameras on the night of January 12/13, 2017 at the SpringHill Suites Hotel.
3. Detective Michael Manhas. Officer Manhas is a member of the York Regional Police and gave evidence with respect to continuity of the two cellphones which were seized at the time of the arrest.
4. Detective Douglas James. Officer James is a member of the York Regional Police and gave evidence with respect to the continuity of the two cellphones which were seized from Mr. Scott.
5. Jonathan Wu. Mr. Wu is a civilian member of the York Regional Police and gave evidence with respect to his computer forensic examination of the iPhone seized from Mr. Scott.
6. Inspector Edmond Villamere. Inspector Villamere is member of the York Regional Police and gave evidence with respect to the arrest carried out in the early morning of January 13, 2017.
7. P.C. Dennis Chan. Officer Chan is a member of the York Regional Police and gave evidence with respect to the arrests made in the early morning hours of January 13, 2017 and the seizure of the two cellphones.
8. Salman Farasat. Mr. Farasat worked at the front desk of the SpringHill Suites Hotel on the night of January 12/13, 2017, and gave evidence with respect to the incident which occurred on the evening of January 12 and the telephone call to the police. He also gave evidence with respect to the background seen in the photographs found in the pink iPhone.
9. Detective Constable Mark Hoekstra. Detective Constable Hoekstra is a member of the York Regional Police and he gave expert opinion with respect to the handgun seized by the police at the time of the arrests in the early morning hours of January 13.

The Charges Related to Mr. Mohamed’s Alleged Possession of a Restricted Firearm

[11] There is no serious issue about the fact that the gun seized from the taxi in the early morning hours of January 13, 2017, is a Glock firearm. Detective Hoekstra’s evidence which was not seriously disputed and which I accept, is that his examination of the firearm disclosed it to be a Glock Model 22 .40 caliber firearm, which is classified as a restricted weapon under s. 84 of the Criminal Code.

[12] The issues which have been raised in this trial are as follows:

1. Has the Crown proved beyond a reasonable doubt that the photos found on the pink iPhone were taken at the SpringHill Suites Hotel in Vaughan at the date and time alleged?
2. Has the Crown proved beyond a reasonable doubt that the object being held by Mr. Mohamed in the photographs found on the iPhone is in fact a Glock firearm?
3. If the answer to question 2 is yes, has the Crown proved beyond a reasonable doubt that Mr. Mohamed was in possession of the firearm and in particular, did he have the requisite knowledge that the gun he was holding was a restricted firearm?

[13] With respect to the first issue, the defence argues that the times shown on the extraction data report cannot be relied upon to establish the date and time the photos were taken. During the evidence of Mr. Wu, he was asked by Crown counsel to turn on the iPhone. It was discovered that the iPhone battery was dead. However, when the cellphone was recharged and turned on, the date showing on the iPhone was January 1, 1970. In his cross-examination, Mr. Wu acknowledged that he did not know when the time and date on the phone had reverted to January 1, 1970. He also agreed that under normal conditions, the phone would not re-boot to a January 1, 1970 date. Mr. Wu was also cross-examined on two articles which suggest there was a problem with iPhones. This is illustrated by one of the articles which states as follows,

Posting an update to support its pages, Apple has revealed that changing the date to January 1 1970 on any iPhone, iPad or iPod touch running iOS 8.x or iOS 9.x (including the latest iOS 9.2.1 release) can stop it from turning on the next time it is restarted. It has confirmed a preventative fix for this will be released soon and in the meantime anyone already affected by the bug should contact Apple support (given their devices won’t be able to switch on to receive the update).

[14] While there is certainly some interesting issues associated with the January 1, 1970 date which showed up on the iPhone during the evidence of Mr. Wu, I am satisfied beyond a reasonable doubt that the dates and times shown from the meta data which was extracted from the iPhone are in fact accurate for the following reasons:

• The data extracted from the iPhone indicates that the photos were taken as noted earlier, between 3:33:45 to 3:34:47 on January 12, 2017. Mr. Farasat testified that the background shown in the photos is identical to a shower washroom at the SpringHill Suites Hotel in Vaughan. He noted in particular a frosted circle shown on the mirror, which is, in his experience, unique. While Mr. Farasat does not have a lot of knowledge about other SpringHill Suites Hotels, I also find the frosted ring on the mirror to be a unique feature of the background. There is no evidence to suggest that these three individuals were staying at any other SpringHill Suites Hotels at any other time, and the suggestion that it could have been another SpringHill Suites Hotel, I regard as speculative.
• The registration documentation for Room 508 at the SpringHill Suites Hotel shows that the room was rented by H.M. with an arrival time of 6:30 p.m. on January 11, 2017 and a departure time on January 13, 2017 of 236 a.m. Surveillance video at the hotel shows that H.M. was seen in the company of Mr. Mohamed, A.P. and Adrian Scott during this period of time.
• The defence suggestion that a glitch in the iPhone may have caused an inaccurate recording of the time and date is not consistent with the glitch described in the articles used for cross-examination of Mr. Wu. The articles suggest that the alleged glitch can stop the iPhone from turning on the next time it is restarted. However, in fact, the iPhone in question had no difficulty in turning on on numerous occasions during the examination and cross-examination of Mr. Wu.
• At the time of extraction of data, Mr. Wu removed the SIM card from the cellphone. The SIM card was not re-inserted into the phone and was placed into a small plastic bag which was then attached to the phone. Mr. Wu explained that if the phone has the SIM card inserted, then it can connect to the network and the phone can be set to take its time from the network. Thus, by removing the SIM card, the phone loses its ability to take the correct time and date from the network. It is possible, however, that the phone could have been set manually. In either case, however, Mr. Wu’s evidence was that if the phone battery dies it will lose its ability to remember the date and time which were last recorded. We know, however, that the battery on the phone must have been charged at the time the photos were taken. Otherwise the camera on the iPhone would not have been able to capture the photos recorded in its memory.
• Mr. Wu’s evidence is that the capture time for the photos which represents the time when the device took the picture will not change, even though the battery may subsequently die.

[15] The next issue to be addressed is whether the object held by Mr. Mohamed is a restricted weapon. It is readily apparent from the photographs that the object held by Mr. Mohamed is virtually identical to a Glock handgun. In particular, it can be seen that the object has the rectangular shape around the barrel and the distinctive sights on top of the barrel. It also has the very wide trigger guard which is distinctive of a Glock firearm. However, the evidence of Detective Constable Hoekstra during cross-examination is that there are plenty of imitations of Glock firearms on the market. He also agreed that there are a number of imitation firearms that look like a Glock. This makes it impossible to conclude based on the photograph itself that the object being held by Mr. Mohamed is a Glock firearm or a restricted firearm. There are, for example, no distinctive markings of a Glock firearm that can be seen in the photographs. In his evidence, Detectice Constable Hoekstra referred to a number of unique features on a Glock handgun. This includes the Glock logo on the barrel of the gun as well as the model number and ammunition type which are also found on the side of the barrel. None of these distinctive features can be seen in the photographs, because these markings are too small to be visible, even if they were present.

[16] It is the Crown’s position that a reasonable inference can be drawn that the gun seized by police in the early morning hours of January 13, 2017 is the same gun seen in the photographs.

[17] There is no direct evidence, however, linking the firearm seized on January 13, 2017 to the gun seen in the photos. Detective Hoekstra in his evidence testified that he checked for fingerprints on the gun but could not find any. He took a DNA swab but the DNA swab was not sent in for analysis. None of the photos show a magazine from the gun with bullets in it, or any other feature which would clearly identify it as an operating firearm.

[18] In the end, therefore, we are left with circumstantial evidence which the Crown relies upon in support of its position that the gun shown in the photo is the same gun seized at the time of the arrests on January 13, 2017. The Crown relies on the close temporal relationship between the time when the photos were taken and the time the arrests were carried out and the firearm seized. The fact that the photos show what appears to be an identical firearm to the one seized approximately 10 hours later does suggest that these were one and the same handgun. However, as noted earlier, this evidence is circumstantial. In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada set out the requirements for a conviction based on circumstantial evidence. In that case, the court holds that if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. The court goes on to state that when assessing circumstantial evidence, the trier of fact should consider other plausible theories or other reasonable possibilities that are inconsistent with guilt. It states that the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative which according to the decision, is a helpful way of describing the line between plausible theories and speculation.

[19] The Crown’s theory is premised on an assumption that the close temporal relationship between the photographs and the finding of a firearm in the taxi about 10 hours later, is sufficient to make a finding that Mr. Mohamed is holding the same Glock which was subsequently seized. In my view, however, while this theory might support a conclusion based on a balance of probabilities, it does not support a finding beyond a reasonable doubt in accordance with the standard set by the Supreme Court in the Villaroman case. In my view, it is not possible to rule out the possibility that Mr. Mohamed himself might have brought a second firearm with him to the hotel. This in turn raises a possibility that Mr. Mohamed is seen showing a gun which was different than the one found subsequently in the taxi occupied by A.P. and Adrian Scott. In this scenario, the only evidence we have to establish that the object being held by Mr. Mohamed is a restricted firearm is based on the photographs themselves which I have previously concluded are not sufficient to establish that what he was holding was a restricted weapon.

[20] It is significant to note that Mr. Mohamed was not in the taxi when the arrests of Mr. Scott and A.P. were effected. Mr. Mohamed was not arrested until February 2, 2017. As a result, we have no information as to what he might have been carrying with him on January 12, 2017. This, in my view, makes it impossible to rule out the possibility that at the relevant time, Mr. Mohamed was holding an object which looked like a real Glock but was in fact an imitation.

[21] I conclude in the circumstances that at its highest, the Crown has only proved beyond a reasonable doubt that Mr. Mohamed was carrying an imitation Glock firearm.

[22] I also accept the defence position that the evidence does not clearly establish beyond a reasonable doubt that Mr. Mohamed knew the object he was carrying was a real firearm. There is no video, for example, as seen in other cases where the accused makes some statement which confirms an understanding that what he is carrying is a firearm or makes threatening gestures to other persons. There is no evidence as previously noted to suggest that he knows it is a real firearm because a magazine with bullets is seen in the video or photographs. The short time frame over which the photographs were taken also makes it more difficult to conclude beyond a reasonable doubt that Mr. Mohamed is in fact aware that he is holding a restricted weapon if in fact that was the case.

[23] For the above reasons, I conclude that Mr. Mohamed must be acquitted on counts 9, 10, and 12.

The Charge of Carrying an Imitation Weapon for a Purpose Dangerous to the Public Peace

[24] I have accepted previously that the Crown has proven at a minimum that Mr. Mohamed was carrying an imitation firearm. However, in order to register a conviction on this basis, the Crown must also prove beyond a reasonable doubt that the weapon was being carried for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code. The photographs in this case show Mr. Mohamed pointing the weapon at a mirror. On one side of him is A.P. and on the other is Adrian Scott. The firearm is not pointed at either A.P. or Adrian Scott. In fact, the three persons appear to be posing and making a similar hand gesture in the photographs. There is no evidence to suggest that any other person is in the vicinity. There is no evidence that anyone is being threatened. In these circumstances I have concluded that the Crown has failed to establish beyond a reasonable doubt that the purpose of Mr. Mohamed’s possession of the weapon was for a purpose dangerous to the public peace. For these reasons, the accused is acquitted on this charge as well.

Justice M. McKelvey Released: May 22, 2019