Court File and Parties

COURT FILE NO.: 0133/19 DATE: 20200109 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the queen AND: ahmed mohamed marzouk, Defendant

BEFORE: S.F. Dunphy J.

COUNSEL: Geleta McLoughlin, for the Crown Mitchell Worsoff, for the Defendant

HEARD at Toronto: January 6, 7 and 8, 2020

REASONS FOR JUDGMENT

[1] Mr. Marzouk is charged with having robbed Mr. Hoszia Hinds on November 13, 2017 contrary to s. 343 of the Criminal Code. Evidence was heard on January 6, 7 and 8. I am rendering my judgment today.

Background Facts

[2] The case concerns a robbery at gun point of an automobile operated by Mr. Hoszia Hinds just outside the Don Mills subway station at or about 10:00 a.m. on November 13, 2017.

[3] In November 2017, the complainant Mr. Hoszia Hinds was newly-arrived in Canada having been sponsored by Mr. Jermaine Jackson. Mr. Jackson is the pastor of a small Toronto church. Mr. Hinds was intended to assist as a clergyman and with Gospel music. At that time, the employment arrangements for Mr. Hinds had not yet been worked out. Pending working out a more definitive arrangement, Mr. Jackson was to cover the living expenses of Mr. Hinds. This loose arrangement had been in place for about a year (Mr. Hinds arrived in September 2016).

[4] On or shortly before November 13, 2017, Mr. Hinds asked Mr. Jackson for $500 to cover his living expenses as per their arrangement. Mr. Jackson could not remember the precise amount requested but nothing turns on that detail. Mr. Jackson agreed to provide the funds but was in a bind because he was in the process of getting on a plane to head out for a vacation in Jamaica. Mr. Jackson recalled sending an email blast to a few friends to see if any of them could lend him the money needed until he – Mr. Jackson – got back. Mr. Jackson said that only one of his friends responded. The accused Mr. Marzouk said that he could help out. Mr. Marzouk agreed to lend the money to Mr. Jackson and arrange to give the money to Mr. Hinds as requested. Mr. Jackson then told Mr. Hinds that he had arranged with a friend to get the requested funds. He believes that he did so from the departure lounge at the airport. He gave Mr. Hinds a telephone number to contact Mr. Marzouk but does not recall giving him more than just the telephone number. Mr. Hinds said that he received only a phone number to contact to receive the money but did not have a name.

[5] During the morning of November 13, 2017, Mr. Hinds tried calling the number he was given repeatedly but no one answered. Then he received a text message from the number “Yh” which he understood to mean “yeah”. The message came from the number he had been calling, being the one received from Mr. Jackson earlier. The sender of the message – alleged by the Crown to be the accused Mr. Marzouk – wrote “is this kozei. Jerm told me bout u. U wana reach”. Mr. Hinds understood “reach” to mean “reach out” or come over. He responded “Yeah. Where you located” and then added his correct name “Hoszia”. By way of reply, he received an invitation to “meet me at donmils station in like 15 mins”.

[6] Mr. Hinds got in his car and drove to the Don Mills subway station. It was approximately 10:00 a.m. When he got there, he did not initially see who he was meant to meet. He was able to identify the man by calling the same telephone number. The man walked up to his car, confirmed he was the one sent by Pastor Jermaine and asked if he could get in. Mr. Hinds invited him to do so. He identified the accused in court as being the man who got into his car. Mr. Hinds said that the man wore a ski mask or similar such that his face was covered. It was winter weather outside and Mr. Hinds did not think anything unusual thus far. He expected that he would simply be given the money and that would be that. His understanding from Mr. Jackson was that all of the arrangements had been made by Mr. Jackson who would take care of paying the man back as well.

[7] The man asked him to drive to the nearby covered parking garage and, given the weather, Mr. Hinds agreed. At this point – perhaps one minute after the man had gotten into the car – the man began to ask Mr. Hinds repeatedly to tell him exactly what Jermaine had told him. While asking this, the man reached into his bag and pulled out a handgun wrapped in a scarf. The man held the gun to Mr. Hinds’ head. At this point the man had at least partially uncovered his face. Mr. Hinds formed the view that the man was white – I shall return to that observation later. Mr. Hinds’ description of the events that followed was somewhat confused as he was, in his own words, freaking out. Over the course of the next two minutes or so, the man:

a. Repeatedly asked Mr. Hinds what Jermaine had told him;

b. Asked him if he (Mr. Hinds) believed in God to which Mr. Hinds said “yes” and showed him some of his Gospel CD’s in the car;

c. Told him that he had “five keys” and “I need your car”;

d. Told him that he would drop the car off at the Finch Station later; and

e. Threatened to “end” him if he “went to the Feds”.

[8] Mr. Hinds described himself as “freaking out” and scared for his life after seeing the gun. He begged for his life. He was allowed to leave the car and the man drove away with it. He left behind his keys – including his house keys - and identification that disclosed his home address.

[9] Mr. Hinds was far away from home without his car, without his keys and in an area he did not know. It was between 10:00 a.m. and 10:30 a.m. He phoned his friend Quincy to come and get him. Quincy was then at work and would not be able to come until he got off work in the afternoon. Mr. Hinds waited for him.

[10] While waiting, Mr. Hinds sent a series of text messages and “Whatsapp” messages to Mr. Jackson after being unable to reach him by telephone. Mr. Jackson said that he was in the air at the time and only received the messages when he arrived in Jamaica and was able to put a Jamaican sim card into his phone.

[11] In one series of text messages time-stamped at 12:42 p.m., Mr. Hinds wrote:

Jermaine this guy you sent me to this morning pulled a gun on me and took my car he was going to shoot me why you put my life in danger bro

He still have my car talking about how he need to use it call me I have no car my house keys on it this white man you made me [c]ome SCARBOROUGH to meet a stranger who pulled a gun on me.

[12] In another series of text messages sent on a different program (it was unclear on the evidence which were sent by SMS and which were sent via Whatsapp although this next series appears to have been sent via Whatsapp):

I am in Fairview mall sitting down bro. Que coming for me. He has my car with my keys and gone with it. Bro. This white guy you sent me to you told him give me 500 dollars. The man pulled out a 9 mm gun and told me he got keys on him and need my car. He keep asking me a bunch of questions with the gun out in his hands.

[13] Shortly after 5:00 p.m., Quincy came to pick up Mr. Hinds. They drove to the Finch station where the man had said he would leave the car. They searched the area but did not find it. Quincy then drove Mr. Hinds to the police station where he arrived shortly after 6:00 p.m. to make his initial complaint.

[14] Mr. Jackson did not respond to either set of messages sent by Mr. Hinds until 5:33 p.m. when he wrote: “White guy. I don’t know no white guy”.

[15] Prior to arriving at the police station, Mr. Hinds had a further text message exchange with the man who took his car. He tried phoning him several times but once again, the phone was not answered. In the text messages, he asked where his car was adding “Jermaine know you and where you live why you not answering the phone. Bro I need my car or else I going to the cops”. A reply text message said “Yo 1 sec. Some sh** happen. I can’t talk”. Once again Mr. Hinds threatened to go to the cops and reminded him that Mr. Jackson knows where he lives. The text reply that came back was: “Brother I could’ve end u. Cuz I gave you a word. OK we’ll see. By the way Jermaine nows nthn on me. But [I] knw u”.

[16] After arriving at the police station, Mr. Hinds made a statement to police. Mr. Hinds did not have a name or anything beyond a cell phone number to identify the man who took his car. Neither he nor Mr. Jackson had an address of Mr. Marzouk to provide police. Mr. Jackson sent a picture of Mr. Marzouk through while Mr. Hinds was at the police station. Mr. Jackson sent it from Jamaica. He remembered retrieving the photo from the cloud. The photo he selected to send was a “selfie” taken by Mr. Marzouk showing both of them (Mr. Marzouk and Mr. Jackson). Before sending it to police, Mr. Jackson cropped his own image out of the photo so as not to confuse police. When he saw the cropped photo of Mr. Marzouk sent by Mr. Jackson, Mr. Hinds said that he immediately recognized him as the man who had robbed him earlier that day.

[17] Mr. Marzouk was arrested two days later on November 15, 2017. A couple of hours later, police located Mr. Hinds’ car in the parking lot of a townhouse complex two kilometers by road from Mr. Marzouk’s residence and just north of the Fairview Mall complex where it had originally been taken from Mr. Hinds. Mr. Hinds reported that the car had been driven some distance since it was taken from him because it was almost out of gas.

[18] Mr. Jackson was of course out of the country and thus had only limited relevant testimony to add to Mr. Hinds’ account. He confirmed that he contacted Mr. Marzouk (known to him as “Zoo”), that Mr. Marzouk agreed to advance the funds to Mr. Hinds and that he gave Mr. Hinds a contact number for Mr. Marzouk. He said that he had known Mr. Marzouk as a friend for some time and expressed doubt that the Mr. Marzouk that he knew could have done what he was charged with. He identified the photo of Mr. Marzouk that he sent to police from Jamaica and, in reply, provided a copy of the un-cropped version of the same photograph that clearly shows Mr. Marzouk as the one taking the photo with Mr. Jackson at his shoulder. He could not identify where and when the photo was taken beyond that it was a selfie that they took while “hanging out”.

[19] Mr. Marzouk testified in his own defence. His account of the events was straightforward. He stated that he never met Mr. Hinds in his life, was never in his car and never agreed to advance him $500 on behalf of Mr. Jackson nor was he ever requested to do so. At the time of the alleged car-jacking, Mr. Marzouk said that he was in class at York University where he continues to be enrolled as an undergraduate student. He said that the phone number that sent and received the text messages produced by Mr. Hinds was not his and the language used by the sender of the text messages would not be used by him. He denied having ever been friends with Mr. Jackson at all or ever having been in a photograph with Mr. Jackson. Indeed, he expressed the view that the photograph that Mr. Jackson gave to police on November 13, 2017 was simply taken from Mr. Marzouk’s Facebook page. For Mr. Marzouk, Mr. Jackson was no more or less than a drug dealer from whom he had purchased small amounts of marijuana a small number of times. If Mr. Hinds was held up at gun point and had his car stolen from him at or about 10:00 a.m. on November 13, 2017, Mr. Marzouk could not say. However, he stated quite clearly that he did not do it.

[20] There are few if any legal issues that need to be grappled with in rendering my decision. If a robbery in fact occurred, the defence denies that Mr. Marzouk was in any way involved in it.

Issues to be decided

[21] Given the nature of the disputes regarding the evidence, I have divided my analysis into two parts: (1) did a robbery of Mr. Hinds occur on November 13, 2017 as alleged; and, (2) if so, was Mr. Marzouk the person who committed the robbery?

[22] In connection with the second question, I must consider whether, as the Crown urges, I ought to draw an adverse inference in relation to the alibi evidence offered for the first time and without prior notice by the accused at trial.

Analysis and discussion

[23] I heard from three witnesses: Mr. Hinds, Mr. Jackson and the accused Mr. Marzouk. The defence challenged the credibility of both Crown witnesses while the Crown challenged the credibility of Mr. Marzouk. Where credibility is as fundamental an issue as it is here and where the accused has elected to testify, I always find it useful to review and keep top-of-mind the instructions I would be giving to a jury were the matter to be decided by a jury.

[24] First, considering and ultimately making findings about credibility must not devolve into a “winner take all” credibility contest. Credibility must be reviewed and weighed on a fact-by-fact basis. The testimony of a witness may be accepted in whole or in part or rejected in whole or in part. Preferring the testimony of one witness to another on a matter does not entail accepting all of one and rejecting all of another.

[25] Second, where the accused has testified, the rules summarized in R. v. W.(D.), [1991] 1 SCR 742 must be carefully followed to avoid any tendency – even unconsciously - to shift the burden of proof away from the Crown where it belongs. Those three rules are these: (1) if I believe the evidence of the accused that he is innocent of the crime charged, I must of course acquit him; (2) if I do not believe the testimony of the accused but am left in reasonable doubt by it, then I must give him the benefit of that doubt and acquit; (3) even if I am not left in doubt by the evidence of the accused, I must still review all of the other evidence to determine whether I am convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which I do accept.

(a) Was Mr. Hinds robbed on November 13, 2017 as alleged?

[26] Counsel for the defence candidly admitted in closing submissions that there appeared to be no basis to doubt that a robbery occurred. Mr. Hinds evidence on that central point was not shaken. However, he cautioned that this conclusion does not entail a finding that all of Mr. Hinds’ evidence about the incident must be accepted. I concur with both of those statements.

[27] While there were definitely some issues with Mr. Hinds’ evidence – in particular some confusion as to the finer details of the incident – his evidence in its broad lines was unshaken and convincingly given. It was corroborated in all of its material respects by the evidence of Mr. Jackson and by the text messages he produced.

[28] I find that the robbery described by Mr. Hinds in his testimony occurred on November 13, 2017 substantially in the manner described by him. I accept all of Mr. Hinds’ evidence regarding how the meeting was arranged, how he came to meet the man outside the Don Mills subway station, how the man got into his car and pulled a gun, his description of the dialogue that took place between them and his description of subsequent events leading to the initial complaint to police shortly after 6:00 p.m. on November 13, 2017. This conclusion does not extend to Mr. Hinds’ evidence regarding the identification of the accused as the robber – that question will be separately considered below.

[29] I also accept Mr. Jackson’s albeit limited evidence regarding these same matters and with the same caveat – the question of identification of the robber will be examined separately below.

(b) Was Mr. Marzouk the one who committed the robbery?

(i) Alibi defence

[30] Mr. Marzouk denied being the perpetrator of the robbery that I have found occurred. His evidence went further. He tendered an alibi suggesting that he was in class at York University when the incident occurred. If the alibi evidence were accepted by me, it would constitute a complete defence. Even if not accepted as a proven fact, such evidence might raise a reasonable doubt as to whether Mr. Marzouk was in fact the perpetrator. The first indication that the Crown had that Mr. Marzouk was relying upon the defence of alibi was when he took the stand after the close of the Crown’s case. No mention of such a defence was made beforehand, including during the judicial pre-trial in the Superior Court.

[31] The law in this area is not particularly controversial. It was recently summarized by the Court of Appeal in R. v. Bushiri, 2019 ONCA 797 (at paragraph 1) as follows:

At common law, an accused who advances an alibi defence at trial must disclose the substance of that defence to the prosecution in sufficient time and with sufficient particularity to allow the authorities to investigate it before trial. When the accused does not do so, the trier of fact may draw an adverse inference when weighing the alibi evidence.

[32] Two things emerge from this. First, the common law rule does not abrogate the constitutional right to silence. Second, the remedy for a breach of the rule is a limited one – the adverse inference that may be drawn applies only to the alibi evidence itself. It is never mandatory to draw such an inference and the decision to do so must be taken having regard to all of the facts.

[33] An examination of the alibi evidence tendered here very clearly demonstrates the wisdom of this rule. Mr. Marzouk alleged that he was in class at York University attending a Psych1010 class. Mr. Marzouk acknowledged that it was important to prove both that he had taken Pysch1010 and that he was taking this class on the date and at the time claimed (8:30 to 11:30 am on Monday November 13, 2017). In support of that, Mr. Marzouk brought only an undated and largely unidentified document entitled “Fall Timetable – Term F and Y” that appeared to indicate Psych1010 class was held on Mondays from 8:30am to 11:30 am. The document did not identify Mr. Marzouk as actually being enrolled in the class in 2017 nor did it confirm classes for that course were held at the indicated time in the Fall of 2017. Mr. Marzouk said that he had another document that he did not bring to court that would show that he was actually enrolled in the course that year.

[34] Among the things that the Crown might have been able to investigate with proper notice would be (i) whether Mr. Marzouk was enrolled in the class in the relevant year and term; (ii) whether classes were held at the times indicated in the unidentified document tendered by Mr. Marzouk; and (iii) whether there is any video evidence (whether from York University itself which Mr. Marzouk agreed has extensive and advanced video surveillance equipment on its campus or from the TTC that Mr. Marzouk said that he usually took to go to school). Mr. Marzouk was able to download Exhibit 3 – an unofficial transcript – during the morning break but that document did not contain evidence that Mr. Marzouk ever in fact completed the course.

[35] In the final analysis, while I find that an adverse inference should be applied to my consideration of the alibi evidence, this conclusion is essentially moot on the facts of this case. This is so for two reasons. First, the objective aspect of the alibi evidence is quite equivocal. Even if the objective, documentary evidence established satisfactorily that Mr. Marzouk was enrolled in a course that had classes scheduled from 8:30am to 11:30am on the day in question, it would not prove that Mr. Marzouk was actually present in class on that day and at that time. No attendance is taken in class. Even the best of students may have an imperfect attendance record and an 8:30 a.m. class on a Monday morning at a distant campus might be expected to have the odd student absence recorded. Second, and a corollary of the first point, the only unequivocal aspect of the alibi evidence offered is Mr. Marzouk’s own evidence that he was in fact there in class on that day. The same Mr. Marzouk has also unequivocally denied having been the perpetrator of the crime. His credibility is at issue equally in respect of both assertions. While it might theoretically be possible to reach a different conclusion as to Mr. Marzouk’s credibility as regards his denial of liability and as to his alleged alibi, practically speaking the two questions are very closely related. Mr. Marzouk’s assertion of having been in class will be subject to the very same questions of credibility as his assertions of innocence. The filter of an adverse inference appears to me to add little practical value to the analysis I must undertake.

(ii) Credibility and findings of fact

[36] What then is the evidence that identifies Mr. Marzouk as the perpetrator of the robbery and does that evidence rise to the standard of proof beyond a reasonable doubt? In this case, I find that the W.D. analysis offers a particularly helpful template to follow.

[37] It is clear to me that the first two steps in the W.D. analysis must be decided squarely against Mr. Marzouk. I cannot accept his own evidence that he is innocent nor can I rely upon any of his evidence to raise a reasonable doubt as to his guilt. I have concluded that Mr. Marzouk lied on the witness stand and did so in a pervasive and deliberate manner. This is one of the rare cases when I can accord no credit at all to any of the evidence offered by him as far as any matter at issue is concerned.

[38] Mr. Marzouk denied having been contacted by Mr. Jackson with a view to advancing $500 to Mr. Hinds. He denied having had anything but a somewhat distant, occasional and not particularly current (in November 2017) relationship with Mr. Jackson as simply a drug dealer who sold him marijuana from time to time. He certainly denied anything resembling a close or even intimate friendship with Mr. Jackson and categorically denied ever having taken a picture with Mr. Jackson. He suggested that he recognized Exhibit 1-F (the cropped photo of Mr. Marzouk sent by Mr. Jackson to police on November 13, 2017) as being a photo taken after a sports event at York University having nothing to do with Mr. Jackson that may have been publicly available on his Facebook page. He denied that Mr. Jackson’s shoulder could be seen in the bottom corner of the cropped photo. As with the bulk of Mr. Marzouk’s evidence, his evidence regarding the photo did not survive cross-examination in any event but was subsequently demolished when the un-cropped photos (Exhibits 5A and 5B) were brought to court by Mr. Jackson as reply evidence by the Crown. Those photos corroborate Mr. Jackson’s claim to having had a close friendship with Mr. Marzouk and utterly contradict Mr. Marzouk’s claim that he never took a photo with Mr. Jackson. I need not engage in speculation about why Mr. Marzouk lied on the witness stand. I have no doubt whatsoever that he did and did so deliberately. It is impossible for me to credit his oath with any value and I disregard substantially all of his evidence.

[39] It is here where the third part of the W(D) test is particularly important. My findings in regard to Mr. Marzouk’s evidence do not displace the Crown’s burden of proof. Guilt is not a corollary of a finding of “not credible”. I must examine all of the evidence I do accept and determine whether it discharges the Crown’s onus even if I accept substantially none of Mr. Marzouk’s evidence.

[40] I start with Mr. Hinds’ evidence of identification. He had never seen or heard of Mr. Marzouk in his life before the incident and indeed was never given more than a cell phone number from Mr. Jackson with which to make contact. The person who got into his car did not give a name and Mr. Hinds only saw the man’s face partially, for a brief period of time and at a time when he was under tremendous stress with a gun being pointed to his head. These are not ideal conditions from which to make a conclusive identification. With those frailties being acknowledged, the evidence that identifies Mr. Marzouk as the perpetrator is strong:

a. Mr. Hinds’ contact with the perpetrator of the robbery was arranged entirely via a telephone number given to him by Mr. Jackson;

b. Mr. Jackson testified that it was Mr. Marzouk’s number – a man known to him as “Zoo” – that he gave to Mr. Hinds and confirmed that he both sent the request for assistance to and received a positive reply from Mr. Marzouk;

c. Mr. Jackson also testified that Mr. Marzouk was the only person from whom he received a positive reply to his request for help;

d. The thesis of a wrong number or a misdialed number can be discounted because the text messages received back by Mr. Hinds made specific reference to “kozei” – phonetically close to “Hoszia” – and to “Jerm” with a “J” (Mr. Jackson’s first name is Jermaine);

e. The designated meeting place – Don Mills Station – is very close to Mr. Marzouk’s actual residence;

f. All caveats regarding the frailties of identification evidence being accepted, Mr. Hinds described the perpetrator as having curly hair, speaking English and not Arabic and doing so with the accent of a non-native speaker – all of which traits accurately describe Mr. Marzouk;

g. Subject to the same caveats, Mr. Hinds identified Mr. Marzouk from the photo sent by Mr. Jackson only a few hours after the incident and the photo is of a young man with relatively distinct angular features that might reasonably be expected to have left an impression upon him only a few hours earlier;

h. Mr. Hinds identified the accused in the courtroom as the robber (the same caveat applies here as well);

i. The robber agreed to return the vehicle – a very unusual occurrence consistent with a robber who had reason to believe that he could be found but also that his threat might also be heeded; and

j. The vehicle was subsequently found in the same area and within two kilometers of Mr. Marzouk’s residence (not at the Finch station as the robber had initially promised).

[41] I was asked to consider certain inconsistencies in Mr. Hind’s evidence that might cast some shadow upon the weight to be given to his evidence. I do not consider any of them to be particularly significant or material.

[42] Mr. Hinds said that he initially lived with Mr. Jackson for one or two months whereas Mr. Jackson said it was more like one or two weeks (and likely one). That is an immaterial collateral fact and such estimates are very often guesstimates at all events. Mr. Hinds described the perpetrator as a “white guy”. He also explained that where he comes from (Barbados), any light-skinned person is commonly referred to as white. Mr. Marzouk grew up in Egypt and has relatively light-coloured skin. Furthermore, his relatively brief view of the perpetrator’s partially uncovered face occurred in a parking garage in some degree of shade. I find nothing inconsistent in Mr. Hinds’ description of the perpetrator as “white” and his identification of Mr. Marzouk as the perpetrator. Mr. Hinds described the gun as being held “close” to his head in his police statement whereas he mentioned that it touched his head at trial. His explanation – naturally and readily given – was that he turned his head to speak to the perpetrator and it was then that the gun touched his head. Mr. Hinds was somewhat inconsistent in describing the face covering of the perpetrator as between his trial evidence, his police statement and the preliminary inquiry. A significant part of this confusion can be attributed to his own lack of a precise vocabulary to describe the winter garb that he was observing. This may or may not be a product of Mr. Hinds’ background from a tropical island. Be that as it may, he clearly struggled to describe what he saw as between a scarf and a ski mask. Even at trial he described the covering as being pulled up at one point and down at another. This confusion in vocabulary and lack of precision did not in any way signal to me a lack of honesty or of candour.

[43] Mr. Hinds gave the best evidence he could give as best he could recall it. His evidence was very strongly corroborated in its most material points by the text messages sent and received and by Mr. Jackson. It was in my view credible and reliable providing it is viewed in its full context.

[44] I turn for a moment to consider Mr. Jackson’s credibility. Mr. Marzouk sought to destroy Mr. Jackson’s credibility utterly. He described him as a drug dealer with whom he had only a somewhat distant, professional customer-dealer relationship. In fact, Mr. Jackson was a scrupulously fair witness. He brought out elements of his relationship with Mr. Marzouk that might embarrass Mr. Marzouk before his father in the audience only when pressed by defence counsel to do so under cross-examination. He quite fairly disclaimed any knowledge of the events beyond his limited role in arranging the introduction to Mr. Marzouk. He expressed doubt that Mr. Marzouk was the perpetrator in his text message to Mr. Hinds on the day (denying that Mr. Marzouk was white as alleged by Mr. Hinds) and continued to express doubt about whether the Mr. Marzouk that he knew could have been responsible when he testified at trial. It was perfectly clear that Mr. Hinds and Mr. Jackson did not co-ordinate their evidence in any way at trial and Mr. Jackson was quite forthcoming in saying what he could and could not remember. He was a very credible witness who qualified all of his evidence carefully and appropriately.

[45] The defence pointed to certain items of evidence that were lacking and suggested that these alone or in combination ought to raise in my mind a reasonable doubt. The defence pointed to the lack of evidence as to the ownership of the telephone number used by the perpetrator, the fact that the perpetrator’s text messages were composed in poor English replete with spelling errors contrary to Mr. Marzouk’s diction in court and the lack of any forensic evidence from the car.

[46] In my view none of these elements of missing evidence rise to the level of planting a reasonable doubt in my mind about the identification of Mr. Marzouk as the perpetrator of the robbery. Whether the phone number was traceable to Mr. Marzouk or not, the fact that Mr. Jackson used that number to contact Mr. Marzouk, that Mr. Marzouk responded to that communication and agreed to help Mr. Jackson by advancing the funds and that Mr. Hinds used the same number to contact the perpetrator and arrange a meeting virtually around the corner from Mr. Marzouk’s residence all point ineluctably to the conclusion that Mr. Marzouk was in control of that phone at the relevant time. The syntax of text messages is a subject worthy of its own university course and language is always context-sensitive. Suffice it to say that I find nothing persuasive in that argument. The lack of forensic evidence from the car or from the search warrant is not particularly unusual given a perpetrator who was described as wearing gloves and one who knew or ought to have known that he would likely be traced eventually given his close connection to Mr. Jackson even if Mr. Jackson lacked a precise address to give police.

[47] There is no such thing as a case where there is not some piece of evidence that might exist that has not been produced. The question is whether the evidence that has been produced rises to the high standard of proof beyond a reasonable doubt. The trier of fact’s job is not to speculate about what absent evidence might demonstrate unless the absence of that evidence itself- by its absence and in light of the other evidence – raises a reasonable doubt. That is not the case here.

[48] I find that Mr. Marzouk was the perpetrator of the robbery described by Mr. Hinds.

Disposition

[49] For the forgoing reasons, I find the accused Mr. Ahmed Marzouk guilty as charged of robbing Mr. Hoszia Hinds on November 13, 2017 contrary to s. 343 of the Criminal Code. A date shall now be set for sentencing.

S.F. Dunphy J. Date: January 9, 2020