Her Majesty the Queen v. Abdirisaq Muse
DATE: 2019-11-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN
AND: ABDIRISAQ MUSE
BEFORE: C.J. Brown J.
COUNSEL: Joanne M. Capozzi, Counsel for the Crown Franklin Lyons and Tamar Bitton, Counsel for the Defendant
HEARD: November 8, 2019
Ruling on THIRD PARTY SUSPECT APPLICATION
[1] The accused was arrested on May 11, 2017 and charged on October 15, 2017 with two counts of attempted robbery which had occurred on May 10, 2017, one count each as regards the two complainants, Mr. Pararajasingam and Ms. Manickam.
The Background
[2] The preliminary inquiry was held, with both trial counsel in attendance. The judicial pretrial was held September 25, 2018, again with both counsel in attendance. At the judicial pretrial, defence indicated that it would bring an application to obtain the insurance records related to the vehicle in which the complainants were sitting at the time of the alleged attempted robberies. The third party records application was to be brought 60 days prior to trial.
[3] This trial was scheduled to and did commence on October 15, 2019. Applications were brought for a stay of proceedings, approval to use a modified Parks question reading “Can you be impartial given that the accused is black” and a constitutional challenge to Bill C-75 which came into force on September 19, 2019.
[4] On October 22, selection of the jury began. On October 28, counsel for the defence advised that he would be bringing a third party suspect application and an application for disclosure of third party records. He advised the Court that, following commencement of the trial, on the evening of October 17, he went to the site of the alleged offence, spoke with some unknown and unnamed people in the neighbourhood, and learned that there had been a number of car-hijackings (“carjackings”) in the area. As a result, on October 21, he requested of Crown counsel all records of robberies involving two suspects from the date of the incident in question, May 10, 2017 to December 31, 2017. Crown counsel immediately requested information from Toronto Police Services and received a General Occurrence Summary and synopsis on October 28, 2019, which she provided to defence counsel.
[5] The General Occurrence (GO) report sets forth one carjacking involving 2 suspects which occurred in September of 2017 in the Parkdale area, several blocks from the subject incident. The synopsis indicates that video footage of the September incident existed and also identified one of the suspects, whose name is blacked out. There was not sufficient evidence to positively identify the second suspect or to lay charges. That investigation is ongoing. On that basis, defence counsel now raises the issue of the third party suspect and wishes to obtain the videotape of the September incident, as well as the name of the identified suspect.
[6] At the time this was raised by the defence, on October 28, he had not prepared or served a third party suspect application, but wished to make submissions orally. He gave cursory submissions, at which point I told him to wait until a proper application could be made, after more evidence was heard in the trial.
[7] In the normal course, this would have been done prior to the trial by bringing an application, served on the Crown counsel, such that the Respondent Crown’s reply could be prepared. Why the defence investigation was not conducted by counsel for the defence and an application prepared, served and filed prior to commencement of the trial was not explained by defence counsel. I note that the application was also raised prior to the end of Mr. Pararajasingam’s evidence and prior to commencement of Ms Manickam‘s evidence being given.
[8] The defence raised the issue of the application again on November 6, after all prosecution witnesses had testified. The application was served and filed and was argued on November 8.
The Positions of the Parties
[9] It is the theory of the defence that there was a third person at the scene of the incident, that the accused came during the attempted robbery, and was the person struck by the vehicle when it was attempting to get away from the perpetrators. It is the position of the defence that the accused was simply an innocent bystander, was jaywalking, was hit by the vehicle and the two perpetrators ran away.
[10] It is the position of the defence that the proposed evidence during the present trial of a possible third party suspect satisfies the evidentiary foundation for advancing an alternate suspect defence. Further, the probative value outweighs any prejudicial effect. Finally, it is the position of the applicant that the Court must use its discretion to admit such evidence which supports the presumption of innocence and gives practical effect to the right to make full answer and defence.
[11] It is the position of the Crown that the defence has failed to meet its onus regarding admission of third party evidence; that the evidence sought to be admitted is not relevant, material or admissible; that the evidence sought to be admitted related to the incident of September 20, 2017 is not sufficiently connected to the case; there is no sufficient connection between the third party and the crime, and that the evidence sought to be admitted is grounded in conjecture and speculation. It is the position of the Crown that there is no air of reality to the evidence sought to be admitted.
The Evidence
[12] The defence submits that there is an air of reality to the possibility that the two suspects in the September 20, 2017 incident and the May 10, 2017 incident are the same. The defence points to the following similarities:
- the perpetrators in both occurrences were black males;
- the perpetrators in both occurrences were of a similar age;
- both offences occurred in the Parkdale neighbourhood near one another;
- the