COURT FILE NO.: CR-18-5-581
DATE: 20191121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED MUSE FARAH and MOHAMED IBRAHIM ULUSOW
Defendants
Alice Bradstreet, for the Crown
Laurence Cohen, for the Defendant Mohamed Muse Farah
Talman Rodocker, for the Defendant Mohamed Ibrahim Ulusow
Spies J. (Orally)
HEARD: November 12-14, 19 and 20, 2019
Ruling on Crown’s Similar Fact Application
Overview
[1] In the months of May to June of 2017, there were 13 robberies or attempted robberies of male customers using Automated Teller Machines (ATMs) located in bank vestibules in the west end of Toronto. The Defendants were initially charged with all 13 robberies, but they were discharged on five of those robberies at the conclusion of their preliminary inquiry. They are now before this Court on the remaining eight robberies.
[2] As a result of these robberies, members of the 23 Division Major Crime Unit (MCU) launched an investigation. On June 22, 2017, officers from the MCU set up static surveillance on two different TD Banks. One of those banks was located at 2700 Kipling Avenue and had been the location of these types of robberies on five occasions between May 6 and May 31, 2017. At approximately 2:54 a.m., a man entered the TD Bank vestibule. At that time, two males that the police had been watching, and whom the police believed were watching the bank from a park across the street, crossed the street and moved towards the bank, while covering their faces using bandanas. They both entered the ATM vestibule of the bank where the man was using the ATM machine. At this time, police approached the bank and arrested the two males who were wearing the bandanas; the Defendants.
[3] The Defendant, Mohamed Farah, was arrested in front of the bank, without incident. A search incident to arrest revealed that he was in possession of a black handled meat cleaver. The Defendant, Mohamed Ulusow, fled and was arrested at gunpoint. During his flight, officers observed him discard what appeared to be a firearm. A firearm was seized from the area that Mr. Ulusow had disposed of it. There is no dispute that this was in fact an imitation firearm.
[4] Apart from the final alleged attempted robbery on June 22, 2017, when the Defendants were arrested, the complainants in the other seven robberies are not able to identify the persons who robbed or attempted to rob them save in very general terms, because those persons had hoodies pulled over their heads and their faces were covered save for their forehead and eyes. As a result, the central issue at this trial is the identification of the perpetrators in each of the seven robberies that took place before June 22, 2017.
[5] Mr. Farah is charge in connection with each of the robberies save for the attempted robbery of Saverio Gennuso on June 10, 2017. Only Mr. Ulosow is charged with that robbery as the Crown alleges that he was the only person seen on the video of that attempted robbery. Mr. Ulosow was not observed on the video of the robbery on June 15, 2017 and he has not been charged with that robbery. Accordingly, each of the Defendants have been charged with six robberies that took place before they were arrested on June 22, 2017.
[6] The Crown’s theory is that the Defendants worked in concert with an unidentified accomplice to effect these robberies and that they used an older model Honda CRV as a getaway vehicle. A search of that vehicle revealed property belonging to the robbery victims, and a firearm that resembles the firearm used in these robberies. There was also clothing found that the Crown alleges was worn by the third perpetrator when that person was part of a robbery.
[7] The Crown brought this similar fact application seeking an order that the evidence directly relevant to each count in the Indictment be admitted as evidence of identity on all counts. I heard all evidence with respect to each robbery or attempted robbery since the evidence forms the basis for the various counts in the Indictment. This application was argued at the end of the Crown’s case.
[8] These are my reasons for granting the Crown’s application.
The Law
[9] Counsel agree on the applicable law. All counsel rely on R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which provides for a principled approach to determine the admissibility of similar fact evidence. At para. 55 the Supreme Court of Canada confirmed that similar fact evidence is presumptively inadmissible unless the Crown can show, on a balance of probabilities, that the probative value of the evidence in relation to a particular issue; in this case identity, outweighs its potential prejudice.
[10] In Handy, at para. 82, the Supreme Court provides a non-exhaustive list of factors for the trier of fact to consider in an application to admit similar fact evidence:
(a) Proximity in time of the similar acts;
(b) Extent to which the other acts are similar in detail to the charged conduct;
(c) Number of occurrences of the similar acts;
(d) Circumstances surrounding or relating to the similar acts;
(e) Any distinctive feature(s) unifying the incidents;
(f) Intervening events; or
(g) Any other factor which would tend to support or rebut the underlying unity of the similar acts.
[11] The rationale for the admission and use of similar fact evidence, where identity is in issue, is the improbability that two persons would display the same configuration of matching characteristics in committing a crime; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 at para. 19. Where, as here, the evidence is tendered on the issue of identity:
… there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed – that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count); R. v. Arp, [1998] 3 S.C.R. 339, at para. 45 [emphasis added].
[12] Counsel also referred to R. v. Johnson, 2011 ONSC 195, [2011] O.J. No. 317, a decision of Justice Hill’s. Hill J. relied on appellate authority for the following propositions:
(a) The test for admission of similar fact evidence is the same whether the evidence is extrinsic or arises from the proof of other counts in the indictment, at para. 131;
(b) The Crown must establish a clear purpose for admitting the similar fact evidence. Such examples may include identification, mens rea, or to rebut anticipated defences, at paras. 132-133;
(c) The evidence must be more than mere “generic similarities” often seen in certain criminal offences; at para. 135;
(d) The similarity assessment requires attention to the existence of material dissimilarities between the transactions. Where the similarities are particularly strong or numerous, attendant dissimilarities may not defeat the legitimacy of the inference sought to be drawn; at para. 137, emphasis added;
(e) Regard must be had to moral and reasoning prejudice, but the risk of prejudice is lessened in a judge-alone trial, at para 139; and reasoning prejudice warrants consideration including distraction of the trier(s) of fact.
[13] The Defendants did not raise a concern about moral prejudice; namely a concern that I would consider the Defendants to be bad men and therefore more likely guilty. Mr. Rodocker did argue that there is a risk of reasoning prejudice in this case.
[14] The Crown relies on five recent decisions of the Ontario Court of Appeal that support the proposition that any prejudice, particularly where the allegedly similar acts do not extend beyond the counts of a multi-count indictment, is significantly attenuated to the “vanishing point” in a judge-alone trial. In the most recent decision, R. v. J.W., 2013 ONCA 89, [2013] O.J. No. 654 (Ont. C.A.) at para. 57, leave to appeal refused, [2013] S.C.C.A. No. 288 (S.C.C.), the court held that the risk of reasoning prejudice is considerably reduced in judge alone trials. As stated by the court in R. v. T.B. (2009), 2009 ONCA 177, 95 O.R. (3d) 21 at paras. 27, 33 (Ont. C.A.), as trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him/her or induce him/her to put more weight on it than is logically justified.
The Position of the Parties
The Crown
[15] It is the position of Ms. Bradstreet that the robberies were committed by one group comprised of three individuals, that they had a specific modus operandi, that the clothing of each of the three individuals is similar in each count; that the counts are closely interwoven and interrelated such that the totality of the evidence on one count should be admitted on all counts.
[16] In particular, Ms. Bradstreet asserts the following similarities:
(a) The acts all occurred in the same geographical area, namely in the west end of Toronto;
(b) Each robbery occurred in the very early morning hours under the cover of darkness between 12:25 a.m. and 3:43 a.m.;
(c) In each case the complainant was male and was about to use, using or had just finished using an ATM in an ATM vestibule of a major bank;
(d) There were two or three perpetrators and, in some cases, a fourth person in a get-away car;
(e) The perpetrators were black males;
(f) They were masked and usually wearing gloves;
(g) Weapons were displayed; always a firearm, sometimes an edged weapon;
(h) There was a use or threat of violence;
(i) Perpetrator #1 was ringleader in that he directed the others and used the complainant’s ATM;
(j) Each complainant was confined by a member of the group while Perpetrator #1 used ATM;
(k) Each complainant’s PIN was demanded of them;
(l) The complainant’s were robbed of personal items as well as cash.
(m) Perpetrator #1 was wearing a bleach stained blue hoody;
(n) Perpetrator #2 was wearing a combination of five specific clothing items;
[17] Although the Crown asserts that this one group had a specific modus operandi, the Crown did not argue that these were “signature” crimes of this group only, such that Perrier, supra would apply. She reasonably conceded that apart from clothing, the manner in which these robberies were conducted was not particularly unusual in terms of an ATM robbery. It is, however, the Crown’s position that some of the clothing worn by each of the three individuals is unique and similar in each count and, given what the Defendants were wearing upon their arrest, is the link for each of the Defendants to the robberies they are charged of that took place before June 22, 2017.
[18] In particular, the Crown asserts that Mr. Ulusow is Perpetrator #1. When he was arrested, he was wearing a navy-blue hooded sweatshirt that has a distinct bleach stain on the right sleeve. The Crown alleges that this stain is visible in the videos from each of the other robberies he is charged with. The Crown’s theory is that Mr. Farah is Perpetrator #2 and that he wore some combination of five clothing items in each of the robberies he is alleged to have committed. It is not suggested that any of these items are unique but rather the Crown relies on the fact that some combination of these clothing items (two or three) was worn in each of the robberies. When he was arrested, he was wearing two of those items.
Position of the Defendants
[19] Both Defendants argue that the Crown has failed to establish on a balance of probabilities that the value of this evidence outweighs its prejudicial effect, or potential misuse. In particular, they argue that the ATM robberies are not more than crimes of "generic similarity" as stated in Johnson, supra. at para. 135 and that the underlying facts do not meet the threshold of "signature or striking similarity" as articulated in Arp, supra.
[20] In support of this position, Mr. Rodocker submits that the eight incidents in the Indictment, are not a complete summary of similar acts. He relies on Handy, supra at para. 82(c) for the proposition that the number of occurrences of similar acts is an important and relevant factor to take into account. He relies on the evidence of Detective Allen about the other five robberies that the Defendants were originally charged with.
[21] Both Mr. Cohen and Mr. Rodocker submit that each of the specific ATM robberies has dissimilar characteristics in terms of the type of weapons, the number of suspects, the clothing, and transportation and that there is no uniform pattern of facts that would support, on a balance of probabilities, the inference that they are committed by the same perpetrators.
[22] Mr. Rodocker also argued that the Crown only relies on video evidence as no witness assisted the prosecution is making more certain the quality of this evidence. He argues that the videos that were taken by cameras in the ATM vestibules are of poor quality, not "high quality CCTV" as alleged by the Crown, and that this video evidence is an insufficient basis upon which to make the comparisons sought. Mr. Rodocker submits that the result is reasoning prejudice to Mr. Ulusow.
Analysis
[23] In making my decision I followed the following steps:
(a) First, I must assess whether there is a high degree of similarity between the manner in which the acts in question were committed to determine whether it is likely that the same person committed the alleged similar acts - that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. Arp, supra. at para. 50 (1) to (2). In my view, in this case, the manner in which the acts in question were committed includes what the perpetrators were wearing if that amounts to a unique trade mark.
(b) If I determine, on a balance of probabilities, that the same person or persons committed the alleged similar acts, the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted. Arp, supra. at para. 50 (3).
(c) If I conclude that the similar acts were likely the work of the same person or persons and there is some evidence linking a Defendant to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by that Defendant as that question may well determine guilt or innocence, Arp, supra. at para. 56.
[24] Turning then to a determination in whether or not there is a high degree of similarity between the manner in which the acts in question were committed so that I can determine whether it is likely that the same person or persons committed the alleged similar acts, the Defendants argue that there are important differences in the manner in which the robberies were committed.
[25] It is true, as argued by the defence, that there are dissimilarities. In considering these I must consider the words of Binnie J. in R. v. Shearing, 2002 SCC 58 at para. 60:
The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied.
[26] Each of the robberies occurred at a different ATM and as Mr. Rodocker submits, the Defendants are only now charged with one of the six robberies that occurred at 2700 Kipling Avenue. In my view the fact that different ATM’s were robbed is not a significant difference.
[27] Although the defence concedes that a common detail to several of the robberies, (considering both those charged robberies and those not on the indictment), is the separation of the complainant from the ATM either by pushing the complainant up against a wall or otherwise separating the complainant from the location of the ATM while one of the perpetrators tried to access that complainant's account via the ATM, this is not a detail that occurs in all of the robberies. I agree, but in my view that is not an important distinction as some of the complainants were more submissive than others. As Ms. Bradstreet submitted in these kinds of circumstances, not every robbery will go down in exactly the same way.
[28] The same is true, in my view, with respect to the fact that although in most cases the complainant's cellphone and wallet were taken, this did not occur in all of the robberies. For example, Mr. Robinson was asked for his phone, but he told the perpetrators that he did not have one and it appears they accepted that.
[29] It is also true that the number of perpetrators varies but since the Crown is not arguing that these robberies were committed by a defined group of men as the basis for her application, I do not find that to be a material difference.
[30] Perhaps more significant is that the Honda CRV, which is alleged to be the get-away vehicle, was only observed at most in three robberies. Even that, however, is not a difference that outweighs the similarities. First of all, some of the complainants were not in a position to see whether or not there was a vehicle. It is also possible that in some cases the perpetrators ran to their vehicle and that it was behind a building or otherwise not in view of the ATM vestibule.
[31] In my view, these differences might be important if the Crown was seeking to show that the same group committed these robberies and that the Defendants were members of that group and on that basis assert that they participated in the robberies. As I have already said, in my view, having regard to the manner in which the robberies were conducted alone would not raise these series of crimes to the level of a distinct modus operandi or the signature of a group.
[32] Mr. Rodocker also relies on the evidence of Detective Allen and submits that the eight robberies charged in the indictment are not a compete summary of the similar acts. He relies on Handy, supra, at para. 82 (c) for the proposition that the number of occurrences of similar acts in a relevant factor to consider. In particular, he relies on the five robberies in the period from May 6 to May 31, 2017, four of which were at 2700 Kipling Avenue and one at 2078 Kipling Avenue. Those were the five charges that the Defendants were not committed to trial on at the end of their preliminary inquiry. Mr. Rodocker submitted that the alleged robbery on June 22, 2017 was only one fifth of the robberies at this particular bank in a two-month period.
[33] I accept that these further five instances of robbery of an ATM have some or more of the similar facts found in the eight robberies before this Court in terms of date, geographical location, number or perpetrators, use of weapons, and other features of the manner of the robbery. However, I have no information as to why the judge conducting the preliminary inquiry decided that these five robberies did not meet the Shephard test. There is no evidence that the distinctive clothing the Crown relies upon on this application was visible in any video or otherwise identified by a witness in those cases.
[34] If the Crown’s application depended only on the similarities in the manner in which the robberies were committed, without considering the clothing worn by the perpetrators, I would agree with the Defendants that all the Crown has is what could be considered generic characteristics of an ATM robbery. However, what makes this application different is the clothing alleged to have been worn by the three men during each robbery and in particular, the clothing of two of those men that the Crown asserts are the Defendants.
[35] In this regard, I considered first the argument made by Mr. Rodocker that each video recording varies in quality. That of course is likely the product of a number of factors including the location and quality of the cameras. I disagree, however, that none of the videos could be described as high quality although I do agree that some are of poorer quality. It should also be noted that some parts of the video may be better than other parts. The Crown prepared still shots of the videos of the moments in time where she relies upon what can be seen in the video to support her position. Mr. Rodocker did not suggest that this caused any distortion but in addition to the quality of the videos he argued that there could be distortion of colours and distances in that some cameras appeared to have fish-eye lenses. I took all of this into account when I reviewed the video evidence again. I disagree with Mr. Rodocker that this involved reasoning prejudice. Rather, it was simply a function of my role as trier of fact in reviewing the videos and concluding whether or not I agreed with Ms. Bradstreet as to what could clearly be seen on the videos.
[36] When I reviewed the videos relied upon by the Crown in her PowerPoint presentation, subject to the robbery of Mr. Cutajar on June 18, 2017, I was satisfied that in each case save for the attempted robbery of Mr. Gennuso on June 10, 2017 and the robbery of Mr. Yang on June 15, 2017, one of the men in each robbery was wearing a navy-blue hoody with a distinctive and sizeable pink stain that was likely as a result of bleach (the “Bleach Stained Hoody”).
[37] Before I gave my oral reasons for granting this application, I asked Ms. Bradstreet about the Cutajar robbery. She showed me video images which satisfied me that Perpetrator #1 was wearing the Bleach Stained Hoody.
[38] At the end of the day, Mr. Rodocker advised me that he was considering bringing a motion for directed verdict with respect to the robbery of Mr. Gennuso on June 10, 2017 in light of my comments with respect to that robbery. In discussing this issue with counsel, I realized that when I excluded Mr. Gennuso as a robbery alleged to have been committed by Mr. Ulusow, I had mistakenly assumed that the Crown was not alleging that Perpetrator #1 could be seen in the video of this robbery. I realized my mistake and informed counsel that I would review the video of this attempted robbery to see if in fact Perpetrator #1 was visible on the video and in particular, whether or not he was wearing the Bleach Stained Hoody.
[39] Having now done so, I have concluded that I cannot say that the masked male who briefly entered the ATM vestibule was wearing the Bleach Stained Hoody. This attempted robbery unfolded very quickly, and it is only on the video clip marked “Door Entry” at the precise time of 1:29:30 that the right arm of the hoody can be seen, and then only in three of the five frames at that specific time. The perpetrator that tries to enter the ATM vestibule and grab Mr. Gennuso, is wearing a hoodie that appears to be the same colour as the Bleach Stained Hoody. With respect to the three frames where the right arm of the hoody can be seen, I do see a lighter whitish mark that could be in the location of the bleach stain and could be that stain. However it is not pink and the quality of the video does not allow me to make conclude that this mark is the bleach stain, particularly as there are a number of wrinkles on the right sleeve of the hoodie which cause light and dark shadows and in the last frame of the video at this specific time, similar whitish lines can be seen. It could well be that what the Crown alleges is the bleach stain is in fact caused by the light shining on the wrinkled sleeve.
[40] It is the Crown’s theory that in those cases where the perpetrator wearing the Bleach Stained Hoody was present, that that man acted as the ringleader in that he directed his cohorts to remove items from the complainant’s pockets, and to maintain a physical presence over the complainant during the robbery.
[41] In my view, the presence of one of the perpetrators wearing this Bleach Stained Hoody in each of these robberies, save for the attempted robbery of Mr. Gennuso on June 10, 2017, moves the generic similar aspects of these robberies to the strikingly similar level or a unique trademark, albeit I am sure an inadvertent one. For these reasons I find that it is likely that the same person committed the alleged similar acts as Perpetrator #1.
[42] The remaining question then is whether there is some evidence linking Mr. Ulusow to the alleged similar acts by Perpetrator #1. At the time of his arrest Mr. Ulusow was wearing a navy- blue hoodie. The right sleeve just above the elbow has about a six-inch stain that is pink in colour, which based on its appearance was likely made by bleach. It is wider at one end and tapers towards the end of the stain. Whether or not this stain was caused by bleach or something else does not matter - it is clearly not part of the original design. As such, given that Mr. Ulusow was wearing a navy-blue hoody with what appears to have the same bleach stain in the same location as seen on the Bleach Stained Hoody, I find that there is some evidence linking him to Perpetrator #1 in the robberies that were committed prior to his arrest in those cases where Perpetrator #1 was present and was wearing the Bleach Stained Hoody. This excludes the June 10, 2017 attempted robbery of Mr. Gennuso and the June 15, 2017 robbery of Mr. Yang.
[43] The Crown’s theory as it relates to Mr. Farah is not as straight forward. There are five items of clothing that the Crown argues were worn in some combination in each of the robberies Perpetrator #2, whom the Crown alleges is Mr. Farah. Those five items are as follows:
(a) A grey hooded sweatshirt with “Canada” written across the front in black cursive lettering, (“Canada Hoody”). This sweatshirt appears in the robberies on June 8, 11, 15and 18, 2017 (both Cutajar and Attard). As Ms. Bradstreet points out, the back of this Canada Hoody has some sort of an irregular white spot or stain roughly in the middle of the back, and this spot can be seen in varying degrees of clarity in all of these robberies.
(b) A hooded black jacket with neon green lining (“Black Jacket”) which appears in the robberies on June 10, and June 22, 2017;
(c) A pair of black track pants with three white stripes, which appears to be the logo of the Adidas brand, running vertically on each side of the pants from the ankle up the leg, stopping mid-thigh. The stripes end at an angle, each slightly longer than the one before it (the “Adidas Pants”). These appear in the robberies on June 10 (Iwankewycz), June 11 and June 15, 2017;
(d) Shorts with a thick grey vertical stripe on each side, flanked by two narrow white stripes (the “Striped Shorts”), which appear in the robberies on June 8, June 10, (Iwankewycz), June 15 and June 22, 2017. In the videos when shorts of this description are visible, it appears that they are sitting at the waist of the person alleged to be Perpetrator #2 and the pants overtop are either the Adidas Pants or plain grey sweat pants that are sitting a few inches below the waist, thus showing the top of the shorts;
(e) White running shoes with distinctive black markings (the “White Shoes”);
(f) Also of significance is the fact that the individual who was wearing the Canada Hoody or the Black Jacket during each robbery was either wearing the Adidas Pants or a plain pair of grey sweatpants.
[44] I have reviewed the videos and I agree with Ms. Bradstreet that in each of the robberies committed before the alleged attempted robbery on June 22, 2017 that Mr. Farah is charged with, one of the perpetrators was wearing some combination of these five clothing items and in each case at least two of those items and sometime three of those items. Although I find that the Canada Hoody is unique because of the spot that can be seen on the back of it, this hoody was not always worn by this perpetrator. The rest of these items of clothing could not be considered unique.
[45] However, as the court said in Arp, supra. at para. 45, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Given my finding that in each of the robberies, one of the perpetrators was wearing at least two and sometime three of the items of clothing that the Crown relies upon, I find that it is likely that the same person committed the alleged similar acts as Perpetrator #2. Furthermore, I find it relevant that in all but the robbery on June 15, 2017, this person was in the company of Perpetrator #1, the man wearing the Bleached Stained Hoodie, which in my view, further reduces the chance of coincidence.
[46] That leaves then the question of whether or not there is some evidence linking Perpetrator #2 to Mr. Farah. Mr. Cohen argues that at the time of his arrest, Mr. Farah was not wearing any unique clothing an in particular was not wearing the Canada Hoody or the White Shoes. In my view, the test at this stage is only whether there is some evidence linking Mr. Farah to Perpetrator #2. At this stage. I am not finding that the similar acts were likely committed by Mr. Farah.
[47] At the time of his arrest, Mr. Farrah was wearing a jacket that looks like the Black Jacket seen in the earlier videos and he was wearing grey sweat pants with shorts that look like the Striped Shorts, also seen in those videos. In my view, the fact Mr. Farah was wearing a black jacket and striped shorts that look like those items of clothing worn by Perpetrator #2, who wore some combination of the five items of clothing that the Crown relies upon, is some evidence linking Mr. Farah to Perpetrator #2.
[48] Finally, the Crown alleges that it is relevant that there was a third perpetrator on some occasions and that on those occasions that person can be observed to be a black male, wearing a hooded jacket that had a horizontal stripe across the back and pants that have vertical stripes up the sides. Clothing that looks the same was found in the Honda CRV that was seized by police that also contained two cellphones that were taken during these robberies. I agree that this evidence further reduces the chance of coincidence.
[49] For all of these reasons the Crown has satisfied me that the similar fact evidence is probative to the issue of identity. In my view that the probative value of this evidence outweighs any remaining prejudice there may be to the Defendants by the admission of this evidence in this judge alone trial.
[50] For these reasons the Crown’s application to admit similar fact count to count evidence is granted.
Spies J.
Written Reasons Released: November 21, 2019
Edited Decision Released: November 22, 2019
COURT FILE NO.: CR-18-5-581
DATE: 20191121
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMED MUSE FARAH and MOHAMED IBRAHIM ULUSOW
Ruling on Crown’s Similar Fact Application
SPIES J.
Written Reasons Released: November 21, 2019