COURT FILE NO.: CR-20-40000272-0000
DATE: 20210722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
Jacob owusu-sarpong
Daniel DeSantis and Brianne Bovell, for the Crown
Tony Bryant, for Mr. Owusu-Sarpong
HEARD: June 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 26 and July 5, 2021
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada
KELLY J.
reasons for judgment
[1] It is alleged that Mr. Owusu-Sarpong was involved, with another, in a home invasion robbery on September 27, 2018. Dr. C.J. was getting ready for work when two males dressed in construction clothing knocked on his door. Dr. C.J. opened the door following which the males, armed with what appeared to be handguns, entered the home demanding to know the location of the “safe” and the “money”. Dr. C.J. advised there was no safe in the home and only a small amount of money in his wallet. That did not deter the perpetrators.
[2] During the home invasion, Dr. C.J. was beaten, forced into the basement, had his pants and underwear removed and was tied up. When the perpetrators left the home, Dr. C.J. freed himself. He went to a neighbour’s home and the Toronto Police Service (“TPS”) was called. Dr. C.J. was taken to Sunnybrook Health Sciences Centre (“Sunnybrook Hospital”).
[3] After the TPS conducted a search of the home and it was cleaned professionally, Dr. C.J.’s stepdaughter found a Band-Aid on the floor of the master bedroom walk-in closet. It was seized by TPS and sent to the Centre of Forensic Sciences (“CFS”). A DNA profile was generated. In January 2019, the National DNA data bank returned a single DNA profile presumptively matching to Mr. Owusu-Sarpong.
[4] A further investigation into Mr. Owusu-Sarpong began. Amongst other things, data searches and surveillance were conducted. Eventually, an Information to Obtain (the “ITO”) was provided for judicial authorization in support of a search warrant for Unit 1104, 4500 Jane Street in the City of Toronto. This was a residence connected to Mr. Owusu-Sarpong.
[5] The search warrant was granted and on August 14, 2019 it was executed. Found during the search, amongst other things, were the following: three hard hats (two white, one yellow), two construction vests, a construction shirt, zip ties, a taser, a loaded firearm and a pellet gun. The DNA profiles from a bloodstain swab found on the inside front headband of the yellow hard hat and a bloodstain swab from the inside edge of a white hard hat could not be excluded as belonging to the victim of the home invasion, Dr. C.J..
[6] As a result of the TPS investigation, Mr. Owusu-Sarpong was charged with several offences committed contrary to the Criminal Code. They arise out of both the home invasion allegedly committed by Mr. Owusu-Sarpong (with another) on September 27, 2018 and from the execution of the search warrant on August 14, 2019. The offences are as follows:
| Count | Office | Section |
|---|---|---|
| 1 | Being unlawfully in a dwelling house. | 349(1) |
| 2 | Forcible entry. | 72(1) |
| 3 | Robbery. | 343 |
| 4 | Forcible confinement. | 279(2) |
| 5 | Aggravated assault. | 268(1) |
| 6 | Assault with a weapon. | 267(a) |
| 7 | Sexual assault with a weapon. | 272(1)(a) |
| 8 | Possession of a firearm knowing its possession is unauthorized. | 92(1) |
| 9 | Possession of a firearm contrary to a court order. | 117.01(1) |
| 10 | Possession of a loaded restricted or prohibited firearm. | 95(1) |
| 11 | Possession of a firearm contrary to a court order. | 117.01(1) |
[7] Mr. Owusu-Sarpong brought an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). He submitted that his s.8 rights to be secure against unreasonable search and seizure had been “infringed or denied”. As such, he sought to have the items seized during the search of Unit 1104, 4500 Jane Street excluded from the trial pursuant to s. 24(2) of the Charter. That application was dismissed in separate written reasons.
[8] At trial, Crown counsel called several witnesses from the TPS regarding both the investigation of the home invasion on September 27, 2018 and the search of Mr. Owusu-Sarpong’s home on August 14, 2019. Dr. C.J. and other civilian witnesses testified both about the home invasion, what occurred after the home invasion and the occupancy of the premises searched. Video evidence was shown from the neighbourhood of the home invasion. Admissions were made and filed as exhibits.
[9] Mid-trial, Mr. Owusu-Sarpong changed his plea on counts 10-11 from not guilty to guilty. I accepted the change in plea. The trial proceeded thereafter with evidence pertaining to counts 1-9 dealing with the home invasion on September 27, 2018.
[10] Mr. Owusu-Sarpong testified as did another defence witness, Mr. Kevonne Marshall. Mr. Owusu-Sarpong testified that he did not commit the home invasion robbery. Mr. Marshall, on the other hand, testified that he committed the robbery in the company of a man by the name of Mr. Dwayne Hydol, also referred to as “Vader” (now deceased).[^1] He testified that he borrowed a hard hat, two construction vests and a blue cooler from Mr. Owusu-Sarpong and returned them after the robbery. He says that Mr. Owusu-Sarpong was not present for the robbery.
[11] Mr. Owusu-Sarpong testified that Mr. Marshall borrowed a hard hat, two construction vests and a blue cooler from him prior to the home invasion robbery. After it occurred, Mr. Marshall returned the items in addition to others. He denies that he participated in the home invasion robbery.
[12] Reply evidence was called to show that on the afternoon of the robbery, Mr. Marshall was on a bus from Ottawa (where he had been attending school) to Toronto. The inference that Crown counsel seeks to be drawn from that evidence is that it is unlikely that Mr. Marshall was in Toronto at the time of the home invasion robbery.
[13] There is no issue but that a home invasion robbery occurred at G[...] Street and that most, if not all, of the offences set out above were committed. The issue is whether or not Crown counsel has proven beyond a reasonable doubt that it is Mr. Owusu-Sarpong who participated in the home invasion robbery. I find that Crown counsel has met the heavy burden of proof beyond a reasonable doubt to establish Mr. Owusu-Sarpong’s involvement in the home invasion robbery.
[14] After having considered the totality of the evidence, Mr. Owusu-Sarpong is convicted of Counts 1-7 (dealing with the home invasion). He is found not guilty of Counts 8-9 as Crown counsel concedes that they have not proven beyond a reasonable doubt that Mr. Owusu-Sarpong possessed a firearm as defined by the Criminal Code. Pursuant to his guilty pleas, Mr. Owusu-Sarpong is also found guilty of Counts 10-11 (dealing with the firearm seized during the execution of the search warrant).
[15] What follows are my reasons.
The Legal Framework
[16] As I have stated above, Mr. Owusu-Sarpong testified as did another defence witness, Mr. Marshall. Accordingly, when examining the defence evidence, I will consider the principles set out in R. v. W.(D.).[^2] I remind myself of those principles, which are as follows:
a. If I believe the evidence of the Messrs. Owusu-Sarpong and/or Marshall, I must acquit.
b. If I do not believe the evidence of Messrs. Owusu-Sarpong and/or Marshall but it raises a reasonable doubt as to Mr. Owusu-Sarpong’s guilt, I must acquit.
c. Even if I am not left in doubt by the evidence of Messrs. Owusu-Sarpong and/or Marshall, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mr. Owusu-Sarpong’s guilt.
[17] When considering the evidence of the defence witnesses, I have done so in the context of the evidence as a whole. I have not isolated the defence evidence in a vacuum. I am also aware that even if I disbelieve and am not left in reasonable doubt by one of the two defence witnesses, the other witness’s evidence may still be believed or raise a reasonable doubt.
Do I Believe the Evidence of Messrs. Owusu-Sarpong and Marshall?
[18] Mr. Owusu-Sarpong testified that he was not present when the home invasion robbery occurred on September 27, 2018, nor was he in the area of the home on September 21, 2018 when it appears the address was under observation by three males. He testified that at the time of the robbery, he was residing at Annie Craig Drive in the area of Lakeshore Blvd. and Park Lawn Road in the City of Toronto. In about mid-August 2018, Mr. Marshall (a drug customer) asked if he could borrow some construction clothing for a job. He obliged.
[19] Mr. Owusu-Sarpong testified that he does not “remember exactly” what he gave Mr. Marshall, but he recalls giving him a construction vest (“it could have been one or two”), a hard hat and a cooler. Mr. Owusu-Sarpong testified that sometime later, Mr. Marshall “brought back the stuff, plus more”. Mr. Owusu-Sarpong testified that this explains why so many of the items observed in the surveillance video on the day of the home invasion robbery were found in his bedroom and/or unit when the search warrant was executed on August 14, 2019.
[20] I do not believe the evidence of Mr. Owusu-Sarpong and I do not believe that Mr. Marshall was involved in the home invasion robbery.
The Evidence of Mr. Marshall
[21] Mr. Marshall is a 19 year-old male who was raised and currently resides on Driftwood Avenue in Toronto. He testified that he was born on May 6, 2002. As such, Mr. Marshall would have been a little over 16 years of age in September 2018 when the home invasion robbery occurred.
[22] Mr. Marshall testified that his friend, “Vader”, told him that he had a “job” for $100,000. They needed construction clothing for it. Mr. Marshall remembered that Mr. Owusu-Sarpong (his drug supplier) had some construction clothes. He asked to borrow them a few days before September 21, 2018 and Mr. Owusu-Sarpong obliged. Mr. Marshall testified that he attended at the home of Mr. Owusu-Sarpong who gave him a white hard hat, two construction vests and a blue cooler with a white cover, nothing else.
[23] Mr. Marshall testified that he attended at the target home of the robbery (G[...] Street) on September 21, 2018 in the company of three males, one of whom was Vader. He testified that he was around 5’10’ to 5’11” at the time. His friend, Vader, was approximately 6’2” or 6’3”. He did not know the other two males, did not talk to them and barely looked at them. He and Vader were both wearing white hard hats and construction vests during the visit. The third male (that he denies knowing) was also wearing a white hard hat and a construction vest. All three were wearing gloves. He does not remember the colour of the gloves.
[24] Mr. Marshall testified that when they were in the area on September 21, 2018, there was a “strong muscular guy” in front of the target house. He testified that, “we weren’t trying to make it get messy, so we rerouted” and decided to return another day. Mr. Marshall testified that he held on to the items borrowed from Mr. Owusu-Sarpong before they returned to commit the home invasion robbery on September 27, 2018. In between the two dates, he was at home: 26 Driftwood Avenue in the City of Toronto. When specifically asked, “You wouldn’t have been anywhere else, would you?”, Mr. Marshall replied, “no”.
[25] Mr. Marshall testified that he returned to the home of the invasion on September 27, 2018 (G[...] Street) in the company of two males. Again, he was with his friend Vader and one other male he did not know. He testified that he was wearing a white hard hat, a construction vest, gloves and a dust mask. Mr. Marshall testified that Vader gave him a “fake gun” as they exited the car. Vader also possessed a fake gun in addition to a knife. The third male remained in the car.
[26] Mr. Marshall testified that he and Vader knocked on the door and that they were “shocked” when an “old guy” (Dr. C.J.) answered. Vader immediately pushed Dr. C.J. into the home. He followed. He describes that “the old guy was fighting, he was fighting like constantly like he wasn’t stopping”. Both he and Vader started hitting Dr. C.J. with the fake guns.
[27] Inside the home, Mr. Marshall testified that they got to a set of stairs. That is when Vader kicked Dr. C.J. and he fell down the stairs. Once they got downstairs, Mr. Marshall realized that Dr. C.J. was bleeding “so much” and “he’s hurting because he is not even fighting back no more”. They continued asking for the safe and money. Dr. C.J. replied that he did not know what they were talking about.
[28] Mr. Marshall testified that he observed Vader “zip tying” Dr. C.J.. Vader removed Dr. C.J.’s clothes and said, “all righty, you don’t want to give the money, I am going to cut off your penis if you don’t give me the money”. Dr. C.J. continued to deny that he had money. Vader sent Mr. Marshall to look for the money in the home. He did so.
[29] Eventually, Mr. Marshall returned to the basement. He and Vader left the home. He realized that there was some blood on the hard hat, so he tried to clean it off before returning the items to Mr. Owusu-Sarpong. A few days later, he gave back the construction gear to Mr. Owusu-Sarpong, including the following: one white hard hat, two construction vests and the blue cooler. Mr. Marshall denies giving anything else to Mr. Owusu-Sarpong.
[30] Mr. Marshall testified that he did not remember much about the day because it was “crazy”. He has been trying to get the incident off his mind and smoking a lot because, amongst other things, Mr. Owusu-Sarpong is “sitting in jail” for something that he (Mr. Marshall) did.
[31] Mr. Marshall’s testimony, that he attended at G[...] Street on either date, is not believable for several reasons. Firstly, there is evidence that leads to the inference that Mr. Marshall was in Ottawa on September 21, 2018 and again on September 27, 2018. As such, he could not have cased the home on September 21, 2018 nor participated in the home invasion robbery on September 27, 2018.
[32] Mr. Marshall’s evidence about his stay in Ottawa may be summarized as follows:
a. He was a good basketball player. He was recruited for programs in Ottawa and North Carolina when he was in high school. He chose Ottawa. He testified that he was “probably” in grade 11 when he enrolled in the program.
b. When he went to Ottawa, he attended Notre Dame College and attended at Canada Topflight Academy for basketball. The program is for elite athletes and is very regimented. He was required to attend school and follow a certain routine including basketball before and after school.
c. Initially, Mr. Marshall stayed with his coach: Mr. Tony House. Eventually he moved to live with a family, arranged for by Mr. House.
d. Mr. Marshall testified that when he enrolled and attended the program in Ottawa, he stayed full time for two months. He was specifically asked, “you weren’t coming back to Toronto, were you?”. Mr. Marshall replied, “No”.
e. When Crown counsel suggested that Mr. Marshall stayed in Ottawa until September 27, 2018 (the date of the home invasion robbery), Mr. Marshall replied, “I think that might be, that might be it, right”. Mr. Marshall agreed that on that day, Mr. House took him to the bus station. During this portion of the evidence, Mr. Marshall was observed by Crown counsel to be squinting and it was suggested that he as “thinking”. Mr. Marshall replied, “I’m not thinking, I’m just wondering, yeah, I’m thinking like how do you know this, but yeah, he [Mr. House] came to my house that he put me at, knocked the door and said I am going to bring you to [the bus station] –yeah, yeah, that’s how it went”.
f. When it was suggested to Mr. Marshall that “the day that this robbery took place is the day … that Tony House took you to the bus station in Ottawa that afternoon so that you can get back to Toronto”, Mr. Marshall replied, “I don’t know”. The following exchange then occurred between Crown counsel and Mr. Marshall:
Q. Sir, I am going to suggest to you [that] you were not in Toronto at the time of this robbery?
A. So why are you trying to say it’s not me?
Q. Because you would have been in Ottawa, sir, you would have been in Ottawa boarding a bus that afternoon.
A. Oh.
Q. Sorry?
A. I said oh.
Q. Oh?
A. Yeah, I don’t know what to tell you.
Q. Did you commit this robbery sir?
A. Yes. …
Q. I am also going to suggest to you, sir, that you were never here the week before on September 21st, 2018 to scope out this place as well. What do you think of that?
A. I don’t know.
[33] In re-examination, Mr. Marshall explained that there were times that he would drive to Toronto leaving Ottawa at 1 or 2 a.m. and that he would return to Ottawa in time for his program. The following exchange took place in re-examination:
Q. If there’s information, sir, that puts you in Ottawa and returning by bus that very day –
A. Mm-hmm.
Q. – that the robbery took place, would you tell Her Honour how that could happen?
A. What do you mean, like how did I get back and forth?
Q. Yes, sir.
A. I got a drive.
Q. Did you come to Toronto on September 27th and return to Ottawa and then come back on a bus that very same day.
A. Yeah, my coach didn’t know I was sneaking out most times but I did come to Toronto a few times and that day I did come to Toronto.
Q. And who drove you back?
A. Just someone I know.
[34] I do not believe that Mr. Marshall snuck out of his Ottawa home in the early morning hours on the very day that he was returning to Toronto for good on September 27, 2018. Firstly, his evidence was contradictory:
a. Initially, Mr. Marshall testified that he remained in Toronto between September 21 and 27, 2018.
b. In cross examination, Mr. Marshall agreed that he went to Ottawa in and around the Labour Day weekend of 2018. At no time did he return to Toronto. It was only when he realized that he returned from Ottawa in the afternoon of September 27, 2018 by bus (making it almost impossible to have committed the home invasion robbery) that he suggested that he had come to Toronto and returned to Ottawa that very day (and on others) without anybody knowing.
[35] Based on the evidence of Mr. Marshall alone, it is reasonable to infer that he could not have travelled from Ottawa to Toronto in the early morning hours of September 27, 2018, finished the home invasion robbery at approximately 7:50 a.m., returned to his Toronto home on Driftwood Avenue and then travelled to Ottawa to be packed and picked up for the bus station to return to Toronto at 12:30 p.m.
[36] Further, Mr. House testified. Mr. House started recruiting Mr. Marshall in the summer of 2018. Mr. Marshall accepted an offer to attend Canada Topflight Academy and arrived on the Labour Day weekend. For the students, each day begins at 8:30 a.m. and ends at approximately 7:30 p.m., mixing academics and basketball. Attendance is mandatory. Mr. Marshall was billeted with Ms. Nicole Muila, in Ottawa, at the time of the home invasion robbery.
[37] Things did not go smoothly for Mr. Marshall in Ottawa. He began missing both classes and practices. He was not meeting expectations. As such, on September 26, 2018, it was decided that Mr. Marshall would be expelled from the program. Mr. Marshall’s coach in Toronto (Coach “Dash”) was advised of this by Mr. House by email at 5:22 p.m. on that date.
[38] The following day, on September 27, 2018, Mr. House received a series of texts from Ms. Muila. They stated the following, “Hello. Coach. Do you know how Kevonne will be going. On [sic] by train, bus and who will be paying the ticket. This morning, he is making pressure to me”. These texts would suggest that Mr. Marshall was in Ottawa on the morning of September 27, 2018 and putting pressure on Ms. Muila, prompting her to send these text messages.
[39] Lastly, Mr. House testified that he attended at the home of Ms. Muila in Ottawa at approximately 12:30 p.m. on September 27, 2018 (just over four hours after the home invasion robbery occurred in Toronto). He picked up Mr. Marshall (who was packed with multiple bags) and took him to the bus station. He purchased a bus ticket at approximately 1:39 p.m., handed it to Mr. Marshall and wished him the best of luck.
[40] To accept Mr. Marshall’s evidence would mean that he left Ottawa at 1:00 a.m. or 2:00 a.m. and drove to Toronto. He was picked up and driven to North Toronto to commit the home invasion robbery, leaving G[...] Street at approximately 7:50 a.m. He was returned to his home on Driftwood Avenue and thereafter picked up by “someone”. That “someone” drove him back to Ottawa in time to be picked up at his billet’s home at around 12:30 p.m. to catch a bus from Ottawa to Toronto. Logic, and the evidence of Mr. House, would dictate that time would not permit such a round trip to have occurred. Additionally, if he had already left Ottawa to go to Toronto, what was the point of returning to Ottawa to take the bus back to Toronto? He had already been dismissed from the program. Deciding to leave without waiting for the bus the following day would not likely have raised any issues.
[41] I also find that Mr. Marshall was not credible in the manner in which he provided his evidence. Mr. Marshall was evasive and when presented with the evidence placing him in Ottawa, he reacted consistent with someone who had been caught in a lie.
[42] For the abovementioned reasons, I do not believe that Mr. Marshall participated in the home invasion robbery. The inference to be drawn from the evidence is that he was in Ottawa at the time.
[43] Further, and even without the benefit of the reply evidence, that seems to put Mr. Marshall in Ottawa at the time the home was cased, on September 21, 2018, and at the time of the home invasion robbery, on September 27, 2018, his evidence is not believable. For example:
The Band-Aid: The evidence that Mr. Owusu-Sarpong did not participate in the home invasion robbery at G[...] Street is contradicted by the DNA evidence found on a Band-Aid located at the home after the invasion.
Although more will be said about finding the Band-Aid below, a Band-Aid was seized by the TPS from G[...] Street after the home invasion robbery occurred. It was found on the floor of the walk-in closet of the master bedroom by Ms. B.M. (Dr. C.J.’s stepdaughter) after Forensic Identification Services (“FIS”) had completed its investigation and the home was cleaned. It was analyzed by the CFS. The admission made pursuant to s. 655 of the Criminal Code with respect to the Band-Aid is as follows:
The Band-Aid seized by police from G[…] St. was analyzed by the Centre of Forensic Sciences. A swab of the adhesive surface of the Band-Aid was taken and analyzed. A single male DNA profile, STR Profile 1, was generated as a result of an analysis of that swab. Jacob Owusu-Sarpong cannot be excluded as the source of the STR Profile 1. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 1 originates from Mr. Owusu-Sarpong than if it originates from an unknown person unrelated to him. [Emphasis added]
The hard hats: Mr. Marshall testified that he borrowed only one white hard hat from Mr. Owusu-Sarpong, two construction vests and the blue cooler. Vader brought his own white hard hat but used one of the vests supplied by Mr. Owusu-Sarpong via Mr. Marshall. Mr. Marshall testified that only the white hard hat he used, the two vests and the blue cooler were returned to Mr. Owusu-Sarpong following the home invasion robbery.
Two white hard hats and one yellow hard hat were found in the home of Mr. Owusu-Sarpong when the search warrant was executed. The following is an admission regarding DNA found on the yellow hard hat and one of the white hard hats located in Unit 1104 (as seen on surveillance on September 27, 2018). The DNA results were set out in the admissions made pursuant to s. 655 of the Criminal Code. The relevant portions of those admissions are as follows:
The yellow hard hat seized by police from 4500 Jane St., unit 1104, was analyzed by the Centre of Forensic Sciences. A swab of bloodstain from the inside front headband of the hat was taken and analyzed. A male blood DNA profile, STR Profile 2, was generated as a result of an analysis of that swab. Dr. C.J. cannot be excluded as the source of STR Profile 2. The probability that a randomly selected individual unrelated to Dr. C.J. would coincidentally share the observed STR DNA profile is estimated to be one in greater than one trillion.
One of the two white hard hats seized by police from 4500 Jane St., unit 1104 was analyzed by the Centre of Forensic Sciences. A swab of bloodstain from the right side of the inside edge of the hat was taken and analyzed. A male blood DNA profile, STR Profile 2, was generated as a result of an analysis of that swab. Dr. C.J. cannot be excluded as the source of the STR Profile 2. The probability that a randomly selected individual unrelated to Dr. C.J. would coincidentally share the observed STR DNA profile is estimated to be one in greater than one trillion.
A swab of the inside front headband of the same white hard hat in paragraph 10 was taken and analyzed. DNA from at least three people, at least one of whom is male, STR Profile 1, was generated as a result of an analysis of that swab. Jacob Owusu-Sarpong cannot be excluded as the source of STR Profile 1. The STR DNA result are estimated to be greater than one trillion times more likely if STR Profile 1 originates from Mr. Owusu-Sarpong than if it originates from an unknown person unrelated to him. [Emphasis added]
Zip ties: Mr. Marshall denies that he took any zip ties from Mr. Owusu-Sarpong. He submits that Vader produced the zip ties when they were inside the home of Dr. C.J. during the home invasion robbery. To his knowledge, no zip ties were returned to Mr. Owusu-Sarpong.
Zip ties were seized from Unit 1104 and the bedroom occupied by Mr. Owusu-Sarpong. Those zip ties match the appearance of those seized from G[...] Street following the home invasion robbery. The zip ties seized from the home of Dr. C.J. were submitted to the Centre of Forensic Sciences for analysis. The relevant portion of the admission pursuant to s. 655 of the Criminal Code provides as follows:
A swab of the unstained areas on both sides of the zip ties was taken and analyzed. A single male DNA profile, STR Profile 2, was generated as a result of an analysis of that swab. Dr. C.J. cannot be excluded as the source of STR Profile 2. The probability that a randomly selected individual unrelated to Dr. C.J. would coincidentally share the observed STR DNA profile is estimated to be 1 in more than 1 trillion. [Emphasis added]
Gloves: Mr. Marshall denies that he borrowed any gloves from Mr. Owusu-Sarpong to use during the home invasion robbery or the visit on September 21, 2018. He did not return any gloves to Mr. Owusu-Sarpong.
The video surveillance from September 21, 2018 shows that the two perpetrators were wearing gloves: one set was black in colour and the other set was orange on the top of the gloves and black on the palms. (The orange gloves are particularly unique.) Gloves matching those descriptions were found in Unit 1104 during the search on August 14, 2019.
Clipboard: Mr. Marshall denied borrowing a clip board for the home invasion robbery. He did not return a clip board to Mr. Owusu-Sarpong.
A clip board is visible in the video surveillance on both days. One is also visible on a shelf in the bedroom occupied by Mr. Owusu-Sarpong in Unit 1104.
Height: Mr. Marshall testified that, at the time of the home invasion robbery, he was 5’10-5’11”. At the time of testifying he said that he was 6’2 or 6’3”. Vader was described as being 6’2” or 6’3”.
I find that Mr. Marshall was lying about his height in order to account for the height difference between the three males seen in the surveillance video taken on September 21, 2018 (where one male is noticeably shorter than the other two) and between the two perpetrators seen in the surveillance video taken on September 27, 2018 (where one is noticeably shorter than the other). There is a photo taken with Mr. House shortly after his arrival in Ottawa in and around the time of the home invasion robbery. Mr. House described himself as 5’10” in the photo. Mr. Marshall, also in the photo, is significantly taller. (Mr. Owusu-Sarpong is 5’7”.)
Knowledge of Specific Facts: It appeared that Mr. Marshall had very little knowledge of specific facts of the home invasion robbery on September 27, 2018. On other issues he was contradicted by the evidence of Dr. C.J.. For example:
i. Mr. Marshall testified that after beating Dr. C.J. in the kitchen, Vader “kicked” Dr. C.J. down the stairs. He testified that he saw Dr. C.J. fall down them. This is contradicted by the evidence of Dr. C.J..
Dr. C.J. testified that he was led down the stairs and not kicked. He did not fall down the stairs as Mr. Marshall describes.
ii. Mr. Marshall testified that both he and Vader went down to the basement with Dr. C.J. after he was kicked down the stairs.
This is contradicted by the evidence of Dr. C.J. who testified only one of the perpetrators went down to the basement with him initially. After several minutes, the second perpetrator joined them in the basement.
iii. When asked where Mr. Marshall went when he got upstairs, Mr. Marshall testified that he did not “really remember”. He testified that he “just looked in the rooms that looked more like it had money in there”. He went in a room where he was “finding like underwears [sic] and stuff”. He got frustrated upstairs and laid on the bed.
The master bedroom is distinct because of the walk-in closet that leads to the ensuite bathroom. Most of the drawers on both sides of the closet were found in an open state and appear to have been ransacked during the home invasion robbery. Had Mr. Marshall been searching in that area, I would have thought he would have a detailed recollection of it. He did not.
iv. Mr. Marshall testified that when he returned to the basement, he does not recall having to walk “over” anything when he did so. This is contradicted by the evidence shown in a picture of the basement.
A photograph taken by FIS shows a trunk and suitcases that were scattered in the hallway. If those had been placed there before Mr. Marshall’s return to the basement, he would have had to walk “over” them when he did.
v. Mr. Marshall testified that Vader removed three pieces of clothing from Dr. C.J. in the basement: his pants, underwear and a t-shirt. As such, they left Dr. C.J. completely naked in the basement. Of course, this is contradicted by the evidence of Dr. C.J. and the exhibits filed at trial.
Dr. C.J. was not wearing a t-shirt. He was wearing a dress shirt (i.e. with a collar and buttons) that he was still wearing upon the arrival of the TPS at G[…] and thereafter at the Sunnybrook Hospital. It was seized at the hospital and returned to FIS at the scene of the crime. It has been entered as an exhibit in this proceeding. It is not a t-shirt; it is a dress shirt and it is covered in blood.
Further, Dr. C.J. testified that only his pants and underwear were removed. This is corroborated by the fact that he was in his shirt at the hospital and the FIS photographs. The photos show his pants (with the belt) in a pile and the discarded underwear on the floor of the basement.
vi. Mr. Marshall testified that Vader told Dr. C.J. that he would cut off his penis if he did not comply with their demands. This is contradicted by the evidence of Dr. C.J..
Dr. C.J. testified that he recalled a threat to “cut” him. He did not recall anything being said about his penis.
[44] For these reasons, I do not believe the evidence of Mr. Marshall and that he participated in the home invasion robbery on September 27, 2018. Nor do I believe the evidence of Mr. Owusu-Sarpong: that Mr. Marshall borrowed the construction clothing (a white hard hat, two vests and the blue cooler) but returned more items to him after the home invasion robbery.
[45] As I have stated above, I do not believe that Mr. Marshall borrowed the construction clothing, committed the robbery and returned it together with additional items. The timeline set out above suggests that he was not even in Toronto at the time of the home invasion robbery. Further, there was a significant amount of incriminating evidence found during the search of Unit 1104 at 4500 Jane Street, Mr. Owusu-Sarpong’s home at the time.
[46] The video surveillance from both September 21 and 27, 2018[^3] shows the males who participated in this occurrence wearing distinctive clothing and carrying items that were found in Mr. Owusu-Sarpong’s room and a closet of the Unit searched. I will deal first with the surveillance videos:
a. On September 21, 2018 commencing a little after 6:51 a.m., the video surveillance captures the following:
i. A grey Nissan Maxima is driving north along G[…] Street towards Glenview Avenue. The Nissan Maxima stops. It turns left along Glenview Avenue and then it makes a U-turn. It parks along the couth curb just west of G[…] Street.
ii. At 6:54 a.m., a rear passenger door opens on the driver’s side. A black male exits wearing: a white hard hat, a yellow construction vest, dark pants, black shoes with white soles. He is smaller than the two other males who eventually exit the Nissan Maxima.
iii. Two other black males exit the Nissan Maxima on the passenger side of the car. One of the males is carrying a blue and white cooler. He is wearing a construction shirt and a yellow hard hat. He crosses to the east side of G[…] Street and walks south.
iv. The last male who exits from the passenger side is also wearing a construction vest and a white hard hat.
v. Two of the males walk south on G[…] Street on the west side (the same side as G[...] Street).
vi. At 6:56 a.m., a motor vehicle appears to pull out of the driveway at G[...] Street.
vii. At 6:58 a.m., two of the males are seen walking northbound on G[…] Street. The male on the east side rejoins them. They continue walking north.
viii. At 7:00 a.m., the males appear to walk up the driveway of G[...] Street. At 7:01:38 a.m., the male with the cooler appears to be out in front of G[...] Street. He appears to be carrying a clip board.
ix. At approximately 7:05 a.m., the males return to the Nissan Maxima. The shorter of the males gets back into the rear driver side. The other two get into the front and back seats on the passenger side of the Nissan Maxima. The car proceeds east on Glenview Avenue.
b. The video surveillance from G[…] Street, taken on September 21, 2018, provides additional information about what the perpetrators were wearing on that date. In addition to the items described above, the following is observed on this video:
i. At 6:55:56 there is a male who is larger in stature in front of G[…] Street. He is wearing a white hard hat, a construction vest, a long sweater, blue jeans, black shoes and wearing orange gloves with black palms.
ii. Behind this male is a male who is smaller in stature wearing a white hard hat, construction vest, black pants, black shoes with white soles, wearing a dark sweater and black gloves.
c. The video surveillance from 118 Glenview Avenue, taken on September 27, 2018, commences at 7:11:18 a.m. and shows the following:
i. The Nissan Maxima is observed driving north on G[…] Street. It makes a right turn to travel east along Glenview Avenue.
ii. At 7:12:31, two males are seen. One is shorter than the other. The shorter of the two males is wearing a white hard hat, a construction vest, black jeans and black shoes with white soles.
iii. The male who is larger in stature is wearing a yellow hard hat and a construction shirt. He has a blue and white cooler in his hand.
iv. At 7:13:30 the two males are walking south on G[…] Street. At 7:13:43 the two males walk up the driveway of G[...] Street. They are wearing white N95 masks over their faces.
v. Approximately 37 minutes later and at 7:50:23, two black males are observed walking north. The smaller of the two males appears to be walking quickly and carrying the blue cooler. He appears to have a grey type fanny pack around his waist. He is wearing the white hard hat. The larger male is carrying a clipboard and wearing a construction shirt.
vi. The smaller of the two males gets into the rear passenger seat. The larger of the two males gets into the front passenger seat. At 7:50 a.m., the Nissan Maxima drives eastbound on Glenview Avenue.
[47] In both videos, taken on September 21, 2018 and on September 27, 2018, there is a black male who is noticeably shorter than the others. Mr. Owusu-Sarpong is 5’7”. The stature and height of the shorter of the males is consistent with that of Mr. Owusu-Sarpong shown in photographs taken from one of the phones seized and the photos filed as exhibits at trial.
[48] The shoes worn by the shorter of the two males in both videos appear to be black with white soles. A pair of running or training shoes similar in appearance to those worn in the video were observed in the hallway closet during the execution of the search warrant at 4500 Jane Street, Unit 1104. The unique features of the shoes that demonstrate the similarities are as follows:
a. The top of the shoes is black in colour. They appear to be running or training shoes (as opposed to lifestyle type shoes such as Vans).
b. The soles of the shoes are white. On the bottom of the sole in the front part of the shoe are alternating colours on the treads – black and white. The back of the sole of the shoe is solid white in colour.
c. There appears to be a brand name on the heal area of the shoes that descends on a slant from the upper heal portion to the lower heal portion. It is mainly white in colour. The shoes found in the closet have a similar logo – “Reebok” is written in white on an angle from the heal of the shoe to the sole.
[49] As stated above, two white hard hats and one yellow hard hat were found in the home of Mr. Owusu-Sarpong when the search warrant was executed. There is an admission regarding DNA found on the yellow hard hat and one of the white hard hats located in Unit 1104 which may be summarized as follows:
a. On the yellow hard hat seized by police from 4500 Jane Street, Unit 1104: Dr. C.J. cannot be excluded as the source of STR Profile 2. The probability that a randomly selected individual unrelated to Dr. C.J. would coincidentally share the observed STR DNA profile is estimated to be one in greater than one trillion.
b. On one of the two white hard hats seized by police from 4500 Jane Street, Unit 1104: Dr. C.J. cannot be excluded as the source of the STR Profile 2. The probability that a randomly selected individual unrelated to Dr. C.J. would coincidentally share the observed STR DNA profile is estimated to be one in greater than one trillion.
c. On the same white hard hat referred to immediately above: Jacob Owusu-Sarpong cannot be excluded as the source of STR Profile 1. The STR DNA result are estimated to be greater than one trillion times more likely if STR Profile 1 originates from Mr. Owusu-Sarpong than if it originates from an unknown person unrelated to him.
[50] A blue and white cooler similar to that carried by the males on September 21, 2018 and September 27, 2018 was found in Unit 1104. When the cooler was located in Mr. Owusu-Sarpong’s unit, it contained zip ties and a rope.
[51] A clipboard similar to that observed in the surveillance was found on a shelf in the nightstand adjacent to Mr. Owusu-Sarpong’s bed. When shown a photo of the nightstand, Mr. Owusu-Sarpong agreed that the clipboard was located there and that it belongs to him.
[52] There were gloves found in the room occupied by Mr. Owusu-Sarpong. One pair are orange with black palms, similar to those worn by one of the perpetrators in the video surveillance (on September 21, 2018). A second set of black gloves is observed as well.
[53] A number of zip-ties were found in the home of Dr. C.J. during the investigation. Some of similar appearance were found in the unit (including the bedroom) occupied by Mr. Owusu-Sarpong.
[54] A Band-Aid with Mr. Owusu-Sarpong’s DNA was found on the floor of the walk-in closet located in the master bedroom. Mr. Owusu-Sarpong does not have any knowledge as to how a Band-Aid with his DNA on it came to be in the house. While I have considered the possibility that it may have been tracked into the home by various people who attended at the home after the invasion, I find that when I consider this together with the other evidence, it is reasonable to draw the inference that the Band-Aid was erroneously discharged by Mr. Owusu-Sarpong when he was rummaging through the drawers in the walk-in closet of the master bedroom.
[55] In addition to the items that are observed on the video surveillance, other items of interest are found in his home that suggests Mr. Owusu-Sarpong was involved in the home invasion robbery. Of particular relevance was the taser. As discussed below, Dr. C.J. believes that he may have been tasered in the shoulder area during the home invasion robbery.
[56] Mr. Owusu-Sarpong testified that in addition to receiving inculpatory items from Mr. Marshall, other items were given to him “right before” he got arrested. He testified that “some guy” he “used to deal to”, “hit” him “up” saying that he had a firearm for him. That male met him at “Arizona” (a club) during the Raptors play offs. He showed Mr. Owusu-Sarpong the firearm that “obviously” was a “fake” in addition to bullets. Some of the bullets could be fired from the firearm that Mr. Owusu-Sarpong already had (a “357 calibre”) so he took an interest in the bullets. Mr. Owusu-Sarpong testified that he and the male “worked out a deal where he gave me the whole bag” in exchange for narcotics.
[57] Mr. Owusu-Sarpong testified that he took the “fake gun” and everything else that was in the bag. That included the following:
a. Ammunition packaged in separate bags containing various bullets of the same calibre. He testified, “I got friends that have other types of guns I would have gave to, so that was the reason why I took it.”
b. Two cannisters of pepper spray.
c. A pellet gun.
d. A Taser (that Mr. Owusu-Sarpong says was not working).
e. A UPS uniform.
f. “weird looking gloves” that Mr. Owusu-Sarpong described as “Madbike” gloves. The gloves have plastic on the knuckles and are black in colour.
g. Magazines for firearms.
[58] For the Court to accept Mr. Owusu-Sarpong’s evidence, it would have to find that Mr. Marshall borrowed and returned various incriminating evidence used in the home invasion robbery and that one of Mr. Owusu-Sarpong’s drug acquaintances provided him with incriminating evidence including a taser, black gloves and a pellet gun. I do not accept that Mr. Owusu-Sarpong was used as a storage vault for items that were used in the home invasion robbery or that he was gifted numerous illegal items in exchange for some narcotics. I find that he possessed the items for purposes of committing crimes, in this case, the home invasion robbery.
[59] I do not believe Mr. Owusu-Sarpong’s evidence giving rise to an acquittal. Nor do I find that when I consider the defence evidence together with the rest of the evidence, that it raises a reasonable doubt. That, of course, does not end the inquiry. I will now turn to a consideration of the third prong of the W.D. analysis.
Has Crown Counsel proven Mr. Owusu-Sarpong’s Guilt beyond a Reasonable Doubt?
[60] I am satisfied that Crown counsel has proven Mr. Owusu-Sarpong’s guilt beyond a reasonable doubt. Although Dr. C.J.’s evidence does not greatly assist in the identity analysis, it proves other essential elements beyond a reasonable doubt. I will begin with his evidence.
The Home Invasion
[61] Dr. C.J. is a 69 year-old cardiologist at Sunnybrook Hospital. He is a widower, having lost two spouses to cancer. He is a father, stepfather and grandfather. At the time of the home invasion, he was sharing the home at G[...] Street with his stepson.
[62] Dr. C.J. described, and the photos show, that the home has two storeys with three bedrooms. There are three entries into the home (a front, side and back door). The main floor has a kitchen and living room. The master bedroom is on the second floor and has a walk-in closet that leads to an ensuite bathroom. To access that bathroom, one must walk through a walk-in closet with drawers and hanging spaces on either side. There is a basement that provides storage, a living room and an office.
[63] At the time of the home invasion, Dr. C.J. was alone in the house. His stepson had already left for work. Dr. C.J. was dressed for work as well. He was in his kitchen enjoying his breakfast and reading The Globe and Mail newspaper when he heard the doorbell ring. He looked through a glass panel that is adjacent to the front door.
[64] When Dr. C.J. looked through the glass panel, he observed two men wearing bright, reflective vests. Dr. C.J. testified that he was not sure if he should answer the door. But then he thought, “they were probably City of Toronto employees and I needed to move my car, or they needed to access the house. Whatever”. Dr. C.J. testified that he stepped out to ask what they needed. He then described the following:
a. Each man grabbed him by one of his arms. They went back into the house as they held his arms. They closed the door.
b. The two males appeared agitated and said, “we want the money, we want the money, we want the money”. When Dr. C.J. suggested that he did not know what the two males were talking about, they said, “There’s a safe in this house and it has money in it, and we want the money.” Dr. C.J. replied that there was no safe in the house. He advised that he had a wallet that contained “a bit of cash” but there was no money or safe in the house.
c. Dr. C.J. is uncertain as to how long the dialogue about the safe and money lasted but he was led into the kitchen and they started hitting him. He is uncertain as to whether he was being hit with fists or an object. When asked to specify if he has any recollection of the “texture” of the object he was being hit with, Dr. C.J. provided the following evidence:
Um-m, I’ve never been beaten before so I don’t know what – what one would expect, and my recollection is that whatever was hitting me was very hard and I thought harder than a fist. So I don’t know for sure whether it was some object, whether it could have been the gun. I don’t know. But it – again I’ve never been beaten up so I don’t know, but I would – it didn’t feel like punches from a hand. It felt like something harder than that.
d. Dr. C.J. testified that one of the males “sort of pointed to their – their lower abdomen where they had the gun, and I can’t remember if they had it in their hand or it was some kind of a – you know, a fanny pack type of thing, I’m not sure”. Dr. C.J. testified that he was told it was a gun. He does not know if both men had guns or not.
e. They were beating Dr. C.J., “primarily” on his face. They continued to ask, “Where is the safe?” and “Where is the money?” Dr. C.J. continued to deny that either was in the house.
f. The males then tied the wrists of Dr. C.J. “with some kind of wires”. He thinks that it might have been “like a cell phone charging cable” but he is not sure. He cannot recall if his hands were tied in front or in the back.
g. One of the males took Dr. C.J. to the basement. He walked. He cannot recall if one of the males was holding on to him or whether he was pushed. However, he did go down the stairs as directed.
h. The one male in the basement continued to hit Dr. C.J. in the face. He believes that he was being kicked because he “had a lot of pain” in his chest later. He believes that he was in the basement for approximately 15 minutes with the one male before the second came down. It could have been longer. He was in shock and survival mode. He was afraid he was going to die.
i. When the second male came downstairs, one of them bent the fifth finger on his left hand to the point that it broke. They continued to hit and kick him.
j. The males then removed Dr. C.J.’s pants and underwear. They said that they were going to cut him. They continued to beat him after his pants and underwear were removed.
k. One of the two males either wrenched his wrist or pushed him so that he landed “hard” on his wrist. He was suffering a lot of pain on both wrists.
l. Dr. C.J. described that he also suffered pain in his shoulder. He is “pretty sure” that he got “hit with a taser” when he was on the floor.
m. His hands were tied when he was upstairs. His feet were definitely tied, but he believes that that occurred after his pants were removed. Although he is not 100 percent certain, he believes that a zip tie was used to tie both his hands and feet.
n. Dr. C.J. is uncertain as to whether he had been unconscious, but he realized that it was quiet in the home and that “maybe” he was going to be “okay”. He managed to get to the phone in the basement office. There was no dial tone. He then went upstairs and crossed the street to a neighbor. 9-1-1 was called.
o. Eventually he was taken to Sunnybrook Hospiral.
[65] Dr. C.J. suffered the following injuries during the home invasion robbery:
a. Displaced fracture of his left hand pinky finger for which he had surgery on October 2, 2018.
b. Right radial fracture of the wrist for which he had surgery on October 3, 2018.
c. Right thumb tendon rupture.
d. Displaced fractures in right ribs 6, 7, 8, 9, 10 and 11.
e. Nasal fracture.
f. Lacerations requiring sutures in the following places: three locations on the scalp parietal and lip.
g. Abrasion on his back.
h. Hearing loss to the right ear caused from post-traumatic tympanic perforation for which he had surgery on February 22, 2019.
i. Bruised, swollen eyes.
j. Psychiatric issues for acute stress, delirium, sleep disruption, flash backs and symptoms of post-traumatic stress disorder.
[66] When shown a picture of himself taken at Sunnybrook Hospital after the incident, Dr. C.J. testified, “I can hardly recognize myself in this picture. Several people came to visit me that morning down in emerge, and they walked by. They didn’t – they couldn’t tell it was me.”
[67] In addition to attending for the surgeries referred to above, Dr. C.J. attended occupational and physiotherapy for the hand injuries. He obtained assistance from a psychiatrist for the post-traumatic stress disorder suffered. He has attended several follow-up visits with a plastic surgeon for his hand injuries as well as an orthopedic surgeon. He has attended appointments with the Ear, Nose and Throat surgeon for the repair of his ear drum.
[68] Dr. C.J. was off work for about three weeks. Because he is “not a very good person to be sitting around at home”, he started going back to work, part time after three weeks. He had casts on both arms when he did so.
[69] When asked to describe how he felt after having been beaten and some of his clothing removed, Dr. C.J. stated:
I felt terrible, and I felt that this was, by this point, definitely the worst day of my life, and I was afraid I might die. I was not sure whether I was going to survive this brutal beating, and it was absolutely horrendous. Definitely the worst day of my life.
The Identity of Mr. Owusu-Sarpong
[70] Dr. C.J. gave a description of the two males who invaded his home as follows:
a. Black males;
b. “let’s say, 180, 200 pounds”;
c. That he, himself, is 5’11”. He advised police that he had the sense that the perpetrators were about the same height as him, “give or take”;
d. They were wearing reflective vests, construction boots and hard hats;
e. They “looked like, you know, people who are doing work, you know, in the neighbourhood or whatever”.
[71] When Det. Beausoleil showed Dr. C.J. a photograph of Mr. Owusu-Sarpong on May 28, 2019, he advised that he did not recognize the person. He further stated that that person had never been in his home. When asked to look at Mr. Owusu-Sarpong in the Zoom courtroom, Dr. C.J. testified that “he had not been in the home”.
[72] Dr. C.J. is not able to positively identify Mr. Owusu-Sarpong as one of the perpetrators in the home. It is understandable why he was not able to do so: he was quickly fending off two males wearing masks as they entered the home. He was beaten and believed he might die. It is understandable that he is not able to provide a detailed description of the perpetrators or that he got their height wrong (he described both as being the same height). However, there is other evidence that assists in the identification of Mr. Owusu-Sarpong as being one of the males who was involved in the home invasion robbery. The absence of identification in these circumstances does not raise a reasonable doubt, particularly in light of the overwhelming evidence implicating Mr. Owusu-Sarpong as a perpetrator.
Surveillance and Evidence found at Mr. Owusu-Sarpong’s Home
[73] I have described the observations in the surveillance videos above and the fact that many of the items observed on the videos were found in Unit 1104 at 4500 Jane Street and in particular, the bedroom occupied by Mr. Owusu-Sarpong. I will summarize that evidence here:
a. One of the males is shorter than the other. Mr. Owusu-Sarpong is 5’7”. The photos of Mr. Owusu-Sarpong taken from his phone demonstrate that his stature is similar to that of the shorter male in the video surveillance.
b. The shorter male was wearing black training shoes on the date of the home invasion. A pair of training shoes, similar in appearance, is found in the Unit.
c. One of the males was wearing a construction vest on the date of the home invasion. A construction vest similar to that worn was found in Mr. Owusu-Sarpong’s bedroom.
d. The smaller of the two males was wearing a white hard hat. A white hard hat was found in Mr. Owusu-Sarpong’s bedroom. DNA on the hard hat cannot exclude either Dr. C.J. or Mr. Owusu-Sarpong as contributors.
e. The larger of the two males was wearing a yellow hard hat. DNA on the yellow hard hat cannot exclude Dr. C.J. as a contributor.
f. The blue and white cooler observed during both surveillance videos was found in Unit 1104.
g. Black and orange gloves as well as solid black gloves were observed worn in the videos on September 21, 2018. Gloves of a similar description (particularly the orange and black gloves) were found in Mr. Owusu-Sarpong’s bedroom.
h. Zip ties were used to tie up Dr. C.J. during the home invasion robbery. Zip ties of a similar appearance were found in the home of Mr. Owusu-Sarpong during the search.
i. A clip board is carried by one of the perpetrators at the time of the home invasion robbery. A clipboard in similar appearance was found in Mr. Owusu-Sarpong’s room.
j. Dr. C.J. advised that he believed that he may have been tasered during the incident. A taser was observed in Mr. Owusu-Sarpong’s room.
k. Dr. C.J. advised that he saw a handgun during the incident. Two handguns were found in Mr. Owusu-Sarpong’s bedroom – one was a firearm as defined by the Criminal Code. Another was a pellet gun.
The Band-Aid
[74] The Band-Aid found in the master bedroom walk-in closet provides strong circumstantial evidence that Mr. Owusu-Sarpong was in the home at the time of the home invasion robbery. Counsel for Mr. Owusu-Sarpong submits that there are two inferences that can be drawn from this evidence: it was inadvertently left behind by one of the assailants or it was tracked into the master bedroom walk-in closet from some other location within or just outside of the home (i.e., it became detached by an article of clothing worn by someone else like Mr. Marshall or any others who entered the home thereafter).
[75] Counsel for Mr. Owusu-Sarpong submits that a review of the evidence of those who “traipsed” through the home is required. He is right. The following people entered the home after the home invasion and were in the location of the master bedroom walk-in closet where the Band-Aid was found. Many were in their street shoes.
[76] The evidence of who was in the home may be summarized as follows:
D.C. Katelyn Holden: D.C. Holden was one of the first officers on scene at 8:07 a.m. She and P.C. Gregory entered the home from the side door. They proceeded to clear the residence. They did so systematically, “floor by floor” and “room by room”. When they got to the master bedroom, she noticed that the drawers in the walk-in closet were opened and the closet was in disarray.
Sgt. Michael McGhee: Sgt. McGhee arrived on scene at 8:20 a.m. He testified that he believes that he entered the home for the first time at approximately 11:06 a.m. with Ms. B.M.. He attended on the second floor to the master bedroom with Ms. B.M. and one other officer where a jewelry box was located.
Det. Marc Beausoleil: Det. Beausoleil was the lead investigator of the home invasion robbery. He arrived at 9:45 a.m. Det. Beausoleil testified that he entered the residence in the company of two FIS officers, D.C. Soucy and D.C. Greavette. Together, they conducted a “walk through” of the home. They started their walk through on the main floor of the home, moved to the basement and then went upstairs. He looked inside the master bedroom and observed the walk-in closet that lead to the ensuite bathroom. He did not go in. At 11:05 a.m., Det. Beausoleil, Ms. B.M. and Det. Soucy (he believes) entered the master bedroom. They went to the ensuite bathroom by walking through the master bedroom walk-in closet. Ms. B.M. opened the secret compartment at the bottom of the sink behind the kickplate.
P.C. Mark Soucy: P.C. Soucy is an FIS officer and was partnered with P.C. Greavette. They arrived at the home at approximately 10:00 a.m. They entered the home through the side door and did a “walk through” of the premise but did not touch anything. They dusted for fingerprints on the main floor and basement of the home. He does not have any recollection of dusting for fingerprints in the master bedroom walk-in closet. At approximately 11:05 a.m., Ms. B.M. arrived. They escorted her into the residence. They did a “complete” walk through to see if anything was missing. She also advised of a secret compartment under the bathroom vanity in the ensuite bathroom. P.C. Soucy went to the ensuite bathroom with Ms. B.M.. They located the jewelry box. At 13:01, Dr. C.J.’s stepson attended to collect some clothes for Dr. C.J.. D.C. Soucy escorted him to the master bedroom where he retrieved some clothing from the chest of drawers from the bedroom proper (as opposed to the walk-in closet).
D.C. Greavette: D.C. Greavette is now retired but he was a member of the FIS, partnered with D.C. Soucy. D.C. Greavette testified that, at one point, a family member arrived and advised of a concealed compartment in the upstairs bedroom. He testified that the secret compartment was in the master bedroom walk-in closet. D.C. Greavette testified that he lay on the floor of the master bedroom walk-in closet to open the secret compartment.
Mr. Frank Russo: Mr. Russo was the Vice-President of ServiceMaster on September 27, 2018. Mr. Russo got a call from the Chubb insurance adjuster, Ms. Mary Kamino with respect to G[...] Street on September 27, 2018 at approximately 2:00 p.m. Following that call, Mr. Russo attended at the home. He arrived at approximately 3:00 p.m. Mr. Russo and Ms. B.M. did a quick walk-through of the home so that Mr. Russo could observe the damages. They walked through the main floor and the basement. He does not recall going to the second floor of the home. He was in the home for 15 to 20 minutes.
Mr. Mauricio Reyes: Mr. Mauricio Reyes is a supervisor and works for a professional cleaning service, ServiceMaster. He attended at the home as arranged by the insurance provider. He was advised that the affected areas were the main floor and the basement. Mr. Reyes testified that he attended inside the home with Mr. Russo to look at these areas. He testified that he attended on the second floor and that Mr. Russo authorized a steam cleaning of the entire second floor. Mr. Reyes was in the company of five employees when they attended for the cleaning. They were wearing shoe covers inside the home. Mr. Reyes testified he assigned “Hernan” to steam clean the second floor. He believes that steam cleaning was conducted in all three bedrooms and in the upstairs hallway. This included the walk-in closet of the master bedroom. However, Mr. Reyes was not present when it happened. When he inspected the master bedroom thereafter, it appears that he did so from the threshold of the door only (i.e. he did not to into the master bedroom walk-in closet).
Ms. B.M.
[77] Ms. B.M. is the stepdaughter of Dr. C.J.. She located the Band-Aid in the master bedroom walk-in closet on the evening of September 27, 2018, after the TPS had completed their investigation. She had lived in the home at G[...] Street from the age of 3 until age 26. At the time of the incident, she was not living there. Her mother had passed away nine months prior to the home invasion.
[78] Ms. B.M. testified that she was notified of the home invasion. Following a visit with Dr. C.J. at Sunnybrook Hospital, she attended at the home. She believes that she went into the home with two other officers.
[79] Ms. B.M. testified that she walked throughout the home to determine what, if anything, was missing. She attended on the second floor. Her mother had a small jewelry box that contained items of sentimental value. She attended at the ensuite bathroom adjacent to the master bedroom walk-in closet. She believes that she was accompanied by Det. Beausoleil. There were other officers but, “it was a blur” and she “wouldn’t be able to even put a face” to who was with her at the time.
[80] Under the sink in the ensuite bathroom is a kick plate that can be pushed out. (In cross-examination, when asked if she observed any officer lying down on the floor either in the ensuite bathroom or in the master bedroom walk-in closet, Ms. B.M. testified, “… if it was, it would have been the bathroom to get the kickplate out, but I recall that I showed them how to do it. But perhaps they pulled the bottom of the vanity out”.) She pushed open the kick plate and retrieved the jewelry box. It was put back in its place by Ms. B.M.. She spent about a minute in the bathroom and then continued her walkthrough of the home.
[81] Ms. B.M. noticed that the drawers in the master bedroom walk-in closet were open. They were normally closed. It appeared that the contents had been rummaged through. She was in the home for approximately 15 minutes before she departed. She was permitted to return to the home when the police cleared the scene. She returned to it in the company of her brother.
[82] In the meantime, Ms. B.M. had contacted her insurance provider. It was agreed that the locks would be changed, and the home would be cleaned professionally. A security guard was hired.
[83] Ms. B.M. could not recall if she met Mr. Russo on the date of the home invasion or the day after. However, she did recall that the cleaning crew attended. She could not recall the exact time of their arrival, but thought it was in the late afternoon or early evening. She let them into the home, directed them “in terms of what needed to be done” and remained in the home while they worked.
[84] Ms. B.M. directed the attention of the cleaning service to the following:
a. The basement, kitchen and basement hallway were the main areas with blood.
b. The front door had been dusted for fingerprints and was covered in dust.
c. The basement cupboards and filing cabinet in the basement also had quite a bit of fingerprint dust on them.
d. The hallway from the main floor to the basement was covered in blood and needed to be cleaned.
e. The area rugs on the ground floor in the front hall were cleaned.
[85] When asked about the second floor, Ms. B.M. testified as follows: “So I had gone up to the second floor to see if they had dusted for fingerprints in the master bedroom closet. They had not. So – and there was no blood on the second floor.” They had not dusted for fingerprints in the master bedroom walk-in closet, “so there was nothing that needed to be cleaned”. As a result, Ms. B.M. testified that, “I indicated that the second floor did not need to be cleaned, but the second floor was never discussed with the insurance or ServiceMaster as being an area that needed to be cleaned. I was just checking to make sure there was no dust”. To her knowledge, the cleaning service did not go to the second floor “because there would be no reason for them to go upstairs”.
[86] Ms. B.M. recalled that the basement carpet was steam cleaned. Any attempt to remove the blood was unsuccessful. As such, the basement carpet had to be removed. To her knowledge, there was no reason to clean anything but the carpet in the basement and the area rugs on the main floor. There was no blood on the second floor carpet and as such, “there would be no reason to have the second floor steam cleaned”.
[87] Further, Ms. B.M. testified that the second floor carpet was not wet when she walked across it that evening with the officers who took the photos. She has no memory of the carpet being wet or leaving marks when she walked across it. She did not smell any scent nor did she observe any markings that would suggest that machinery had been “running” over the carpet.
[88] Ms. B.M. testified about finding the Band-Aid in front of a set of drawers on her mother’s side of the closet as follows:
So, when I went in to check for the dust, I noticed that the drawers in the master closet had been closed. So, it no longer looked like anything was out of place. And as I walked over to check, I was going over to sort of run my finger over to make sure there was none of the dust because the wood in that closet is dark, to see if there was something there.
So when I went to check for that, I bent down to check the bottom – like run my hand along the drawers, and as I did so, I noticed something on the floor. And I – I picked the item up prior to really being aware of what was there, and as I picked it up, I realized that it was a small piece of Band-Aid.
[89] Ms. B.M. testified that the Band-Aid was not easily observed because the Band-Aid is almost the exact colour as the carpet in the master bedroom walk-in closet. She found it next to the drawers that appeared to have been opened and ransacked during the home invasion robbery. When she did see it, she picked up the Band-Aid between her thumb and forefinger (as she described, she “literally pincered it”). It was not wet. She took it to the kitchen, placed it in a Ziploc bag, called Det. Beausoleil and waited for it to be retrieved by the TPS. It was approximately 7:00 p.m. when she did so. She cannot recall whether she located the Band-Aid, “just before the cleaning crew arrived or as they arrived”.
[90] The Band-Aid was retrieved. When the officer attended, he took photos in the area of the walk-in closet where it was found. She believes the cleaning crew had left before the TPS arrived.
[91] While I accept that many people walked in the area of the master bedroom walk-in closet after the home invasion and there is conflicting evidence about what happened there, when I consider the evidence of the Band-Aid together with all of the other evidence, I find that the reasonable inference to draw from this evidence is that Mr. Owusu-Sarpong was in the home at the time of the invasion.
Absence of Evidence
[92] Counsel for Mr. Owusu-Sarpong also submits that there is an absence of evidence that should raise a reasonable doubt with respect to Mr. Owusu-Sarpong’s involvement in the home invasion robbery. That includes: the fact that the black trainers were not seized during the execution of the search warrant to determine if there was blood on them; that no blood was found on two construction vests and a construction shirt analyzed by the CFS; there was no examination of the orange and black gloves observed; and there is no evidence that either gun found in the unit was examined for blood-like staining. Counsel submits that “given the nature of the assault on Dr. C.J., there is no determination one way or the other of the possible existence of any evidence of blood like staining” on these items.
[93] I have considered the absence of evidence as suggested by Counsel for Mr. Owusu-Sarpong. It does not raise a reasonable doubt about the identity of Mr. Owusu-Sarpong as one of the perpetrators of this horrible crime when considered in the context of the whole of the evidence.
Conclusion
[94] In assessing the evidence in this case, I remind myself of the principles set out in R. v. Griffin[^4] and R. v. Villaroman[^5] regarding circumstantial evidence. In Villaroman, the Supreme Court of Canada reviewed how the trier of fact should consider and assess circumstantial evidence at paras. 37 and 38:
[37] When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt: … ‘Other plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[38] Of course, the line between a ‘plausible theory’ and ‘speculation’ is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Citations omitted]
[95] Because circumstantial evidence requires inferential reasoning, it is important that I consider the reasonable alternative inferences in assessing the strength of the circumstantial evidence. In doing so, I remind myself of the following principle: am I satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty?[^6]
[96] When considering the circumstantial evidence, I also bear in mind the following principles, amongst others: that circumstantial evidence is not to be evaluated piece by piece but rather it is to be considered cumulatively and that a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the likelihood of coincidence.[^7]
[97] When I consider all of the evidence in this case, I find that when I view it logically and in light of human experience, the only rational inference to be drawn from the evidence is that Mr. Owusu-Sarpong was a participant in the home invasion robbery at G[...] Street on September 27, 2018.
[98] For the abovementioned reasons, I find the following with respect to each count:
Count 1: Mr. Owusu-Sarpong was in the home of Dr. C.J. at G[...] Street without lawful excuse. He entered it with the intent to commit an indictable offence contrary to s. 349(1) of the Criminal Code.
Count 2: Mr. Owusu-Sarpong forcibly entered the home in the company of another in a manner that caused a breach of the peace contrary to s. 72(1) of the Criminal Code.
Count 3: Mr. Owusu-Sarpong committed a robbery as he assaulted Dr. C.J. with intent to steal from him contrary to s. 343 of the Criminal Code.
Count 4: Mr. Owusu-Sarpong, together with his accomplice, forcibly confined Dr. C.J. in his home during the home invasion robbery contrary to s. 279(2) of the Criminal Code.
Count 5: Mr. Owusu-Sarpong committed an aggravated assault on Dr. C.J.. Mr. Owusu-Sarpong wounded, maimed, disfigured and endangered the life of Dr. C.J. contrary to s. 268(1) of the Criminal Code.
Count 6: Mr. Owusu-Sarpong committed a sexual assault with a weapon. This is a general intent offence that does not require proof of a sexual purpose or sexual gratification on the part of Mr. Owusu-Sarpong. I find that Crown counsel has proven beyond a reasonable doubt that Mr. Owusu-Sarpong (himself or as a party) touched Dr. C.J. without consent in circumstances of a sexual nature (the removal of his pants and underwear). I am satisfied that objectively, all of the circumstances surrounding the conduct demonstrate that the removal of Dr. C.J.’s pants and underwear was of a sexual nature and violated the sexual integrity of Dr. C.J.. As such, Mr. Owusu-Sarpong committed the offence of sexual assault with a weapon contrary to s. 272(1)(a) of the Criminal Code.[^8]
Count 8: As per Crown counsel’s submissions, Mr. Owusu-Sarpong is found not guilty of possession of a firearm knowing its possession is unauthorized contrary to s. 92(1) of the Criminal Code.
Count 9: As per Crown counsel’s submissions, Mr. Owusu-Sarpong is found not guilty of possession of a firearm contrary to a court order pursuant to s. 117.1(1) of the Criminal Code.
Count 10: Pursuant to his plea of guilt, Mr. Owusu-Sarpong is found guilty of possessing a loaded restricted or prohibited firearm contrary to s. 95(1) of the Criminal Code.
Count 11: Pursuant to his plea of guilt, Mr. Owusu-Sarpong is found guilty of possession of a firearm contrary to a court order pursuant to s. 117.1(1) of the Criminal Code.
[99] As such Mr. Owusu-Sarpong is found guilty of counts 1 to 7. I also find him guilty of counts 10 and 11, as per the plea. Mr. Owusu-Sarpong is found not guilty of counts 8 and 9.
Kelly J.
Released: July 22, 2021
COURT FILE NO.: CR-20-40000272-0000
DATE: 20210722
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
jacob owusu-sarpong
reasons for judgment
Kelly J.
Released: July 22, 2021
[^1]: Mr. Marshall testified that Vader died in a car crash in Niagara in June 2020. He did not attend a memorial service for him. [^2]: 1991 SCC 93, [1991] 1 S.C.R. 742 [^3]: The video surveillance was acquired from neighbours in the area. One of the cameras was on a home located at 118 Glenview Avenue and had a view facing south on G[…]. The other video surveillance was from the home of a neighbor located at G[…] Street. [^4]: 2009 SCC 28 at para. 33 [^5]: 2016 SCC 33 [^6]: See: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 33-34 [^7]: See: R. v. Consulo, 2011 ONSC 1349, [2011] O.J. No. 4204 (S.C.J.) at paras. 234 and 235 [^8]: See: R. v. Johnstone, 2014 ONCA 504 and R. v. Trachy, 2019 ONCA 622