COURT FILE NO.: CR-21-10000146-0000
DATE: 20220513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDUL WASI HADI, PETER MITSAKIS, ALHAJI BANGURA and SHAHABELDIN MOHAMED
M. Passeri and A. Kwan, for the Crown
R. Chartier, for Mr. Hadi
M.J. Rombis, for Mr. Mitsakis
D. Varilone, for Mr. Bangura
A. Hussain, for Mr. Mohamed
HEARD: January 18-21, 24-27, February 1, 3, 4, 7-11, 2022
REASONS FOR JUDGMENT
SCHRECK J.:
[1] The Roop Mahal Jewellery store is located in a plaza in Brampton. On the morning of May 8, 2019, a tow truck backed into the front window of the store, breaking it and creating a large opening. A number of individuals, some of whom were armed with guns, entered the store through the opening, smashed display cases with hammers, removed the jewellery and quickly fled. Approximately $276,000 worth of jewellery was stolen.
[2] A few minutes before the robbery, an individual fired three shots into the ceiling of a salon located near the jewellery store and then immediately fled in a grey Dodge Caravan. It is the Crown’s theory that this was done to distract the police while the robbery was taking place.
[3] The Crown alleges that Abdul Wasi Hadi, Peter Mitsakis, Alhaji Bangura, Shahabeldin Mohamed and several others were involved in the planning and execution of the robbery and the discharge of the firearm that preceded it. All four defendants are charged with conspiracy to commit robbery and robbery. Mr. Mitsakis and Mr. Bangura face a number of charges in relation to the distraction shooting and they and Mr. Mohamed are also charged with being accessories after the fact. Mr. Mohamed is also charged with dangerous driving and flight from police in relation to conduct he is alleged to have engaged in at the time of his arrest. The defendants have elected to be tried in this court without a jury.
[4] Following are my reasons for the verdicts I have reached on each count in relation to each defendant.
I. OVERVIEW OF THE EVIDENCE
[5] While I have considered all of the evidence, I do not intend to provide a detailed summary of it in these reasons. Rather, I will provide a broad overview and then consider those details which are necessary to resolve the various factual and legal issues that arise.
[6] The defendants were charged with a number of other individuals who have been tried separately. They are Abdul Sami Hadi, Omer Gharibzada, Kennedy Richards-Coleman, Deshayne Newman and Abdul Nabi Hadi. At the time of the robbery, the defendants and others were being investigated by the police as part of a large investigation called “Project Kraken.” As part of this investigation, the police had installed a covert camera outside an auto repair shop located at 92 Crockford Boulevard in Toronto, which some of the defendants frequented. The police also intercepted some of their telephone communications and tracked their mobile devices. The Crown relies on the fruits of these investigative techniques as well as items that were seized when a number of the suspects were arrested a few hours after the robbery at the auto body shop.
[7] The Crown also relies on security video taken at and around the scenes of the robbery and the discharge of the firearm, as well as the testimony of various police officers involved in the investigation and various types of forensic evidence.
[8] While both the robbery and the discharge of the firearm were captured on video, the individuals involved were disguised and there is no direct evidence identifying any of them. As a result, the Crown relies on circumstantial evidence of the parties’ movements, activities and communications before and after the commission of the offences.
[9] None of the defendants take issue with the identities or involvement of the separately charged co-conspirators, although the Crown led evidence establishing their identities and participation in the offences.
II. ISSUES WITH RESPECT TO EACH DEFENDANT
A. Mr. Hadi
[10] The issues differ with respect to each defendant. Mr. Hadi is charged jointly with all of the others with conspiracy to commit robbery (Count 1) and robbery (Count 2). He takes the position that the Crown has failed to prove that he is the person alleged to be him in the video surveillance and intercepted communications relied on by the Crown, and in any event has also failed to prove that that person was a member of any conspiracy or a party to the robbery.
B. Mr. Mitsakis
[11] Mr. Mitsakis is alleged to have facilitated the robbery by being the distraction shooter. He is charged in Counts 1 and 2 and is also jointly charged with Mr. Bangura with conspiracy to commit a reckless discharge of a firearm (Count 3), possession of a loaded restricted firearm without authorization (Count 6), occupying a motor vehicle with a firearm (Count 7), possession of a prohibited device (Count 8) and accessory after the fact to robbery (Count 9). He is charged alone with reckless discharge of a firearm (Count 5) and having his faced masked with intent to commit an indictable offence (Count 6).
[12] Mr. Mitsakis takes the position that the Crown has failed to prove his identity as the “distraction shooter” and there is therefore no evidence of his involvement in the conspiracy or the robbery and no evidence that he possessed a firearm.
C. Mr. Bangura
[13] Mr. Bangura is alleged to have assisted Mr. Mitsakis in carrying out the distraction shooting and is alleged to have driven Mr. Mitsakis to and from the location of the distraction shooting. He charged in Counts 1 and 2 and together with Mr. Mitsakis in Counts 3, 6, 7, 8 and 9.
[14] Mr. Bangura acknowledges that he is the person seen on video at 92 Crockford after the robbery but takes the position that the evidence of his activities at that time does not prove that he was at, or involved with, the discharge of the firearm or the robbery.
D. Mr. Mohamed
[15] Mr. Mohamed is alleged to have been present when the police arrived to arrest everyone at 92 Crockford and is alleged to have been there to help the others dispose of evidence. It is alleged that he fled from the police in a vehicle and drove in a dangerous manner as he did so. Mr. Mohamed is charged in Counts 1 and 2 and is also charged with being an accessory after the fact to robbery (Count 10), dangerous operation of a vehicle (Count 11) and failing to stop when pursued by police (Count 12).
[16] Mr. Mohamed’s position is a blanket denial of every allegation made by the Crown.
III. OVERVIEW -- GENERAL LEGAL PRINCIPLES
A. The Presumption of Innocence and the Burden of Proof
[17] Each of the defendants is presumed to be innocent. Each may only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown. There is no onus on any defendant to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities. In applying the burden of proof, I must consider each count and each defendant separately.
B. Circumstantial Evidence
[18] The Crown’s case with respect to most of the counts is circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):
... [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.
[19] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts (at paras. 35-37):
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “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.
[20] It is important to keep in mind that the issue is whether guilt is the only reasonable inference, not the strongest reasonable inference to be drawn from the circumstantial evidence. An accused is entitled to an acquittal if there are reasonable inferences other than guilt, even if such alternative inferences are not as strong or compelling as an inference of guilt. Put another way, in a circumstantial case, a reasonable inference other than guilt is, by definition, a reasonable doubt.
[21] In considering whether an inference is reasonable, it is instructive to consider the authorities respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those authorities that in order to be reasonable, an inference need not be “easily drawn,” “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4.
C. Conspiracy and Joint Enterprise
[22] In cases where there is a conspiracy or other joint criminal enterprise, the acts or declarations of one co-conspirator or co-actor may be admissible against the others in certain circumstances. To use the out-of-court acts or declarations of an individual in this way, the Crown must prove (1) beyond a reasonable doubt that a conspiracy or joint enterprise exists; (2) on a balance of probabilities that the accused against whom the acts or declarations are sought to be admitted was a member of the conspiracy, based on evidence directly admissible against him; and (3) that the act or declaration of the alleged co-conspirator on which the Crown wishes to rely was made in furtherance of the conspiracy or common enterprise: R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. For the Crown to use the evidence in this way, the joint enterprise need not be a conspiracy and may include a broad common enterprise: R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 118; R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 33.
IV. COUNTS 1 AND 2 – CONSPIRACY TO COMMIT ROBBERY AND ROBBERY (ALL DEFENDANTS)
A. Overview
[23] All parties except Mr. Mohamed accept that a conspiracy existed in this case. The robbery was clearly carefully planned and involved the participation of numerous people. Nor do the defendants take issue with the Crown’s allegations against the individuals who are not on the Indictment before the court. However, each of the defendants take the position that the Crown has failed to prove their participation in any conspiracy or in the robbery.
[24] I will consider the evidence in relation to Counts 1 and 2 together as for each defendant, the evidence in support of both counts is virtually identical. Any evidence establishing each defendant’s alleged role in the conspiracy would also establish his participation in the robbery as either a party or a principal. Similarly, it can be reasonably inferred that anyone who participated in the robbery was also involved in the planning of it and therefore the conspiracy. While I intend no disrespect to Crown counsel, I question the need to include both of these charges in the indictment: R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58.
B. Mr. Hadi
(i) Evidence
[25] Three of the alleged co-conspirators have the surname Hadi: Abdul Wasi Hadi, Abdul Nasi Hadi and Abdul Sami Hadi. In these reasons, I will refer to the defendant, Abdul Wasi Hadi, as Mr. Hadi and I will refer to the others by their middle and surnames.
[26] As noted, Mr. Hadi accepts that a conspiracy existed, but not that he was a member of it. As a result, I need not consider the first stage of the Carter analysis.
[27] With respect to the second stage of the Carter analysis, the Crown submits that the following evidence is directly admissible against Mr. Hadi and therefore establishes his probable membership in the conspiracy as well as his participation the robbery:
- The day before the robbery, the person alleged to be Mr. Hadi and a number of the alleged co-conspirators met at 92 Crockford. Two vehicles that were involved in the robbery were also present: a white Dodge Durango used by the four robbers and a blue Hyundai Santa Fe.
- Between 7:14 a.m. and 8:10 a.m. on the day of the robbery, there are intercepted communications between a person alleged to be Mr. Hadi and Nabi Hadi in which they discuss their current whereabouts and arrange to meet one another. In the last call, the person alleged to be Mr. Hadi tells Nabi Hadi, “Yeah, when you get there, just park beside me on the … onto my driver door … so passenger to … your passenger to my driver. I’ll hop in one time.”
- Security video outside the Roop Mahal store shows that at 8:19 a.m., a light-coloured Range Rover and a light-coloured Chevrolet parked side by side directly in front of the store entrance. The blue Hyundai Santa Fe then parked beside the Range Rover on the driver’s side. Consistent with the earlier telephone conversation, the person alleged to be Mr. Hadi got out of the driver’s seat of the Range Rover and entered the front passenger seat of the Santa Fe. He was wearing a light-coloured hoodie, a dark-coloured baseball cap and dark pants. The same Range Rover returned to the area of the store at around the time of the robbery.
- At approximately 9:52 a.m., the blue Hyundai Santa Fe returned to 92 Crockford with Nabi Hadi driving. The person alleged to be Mr. Hadi, who was wearing the same clothing as seen earlier at the Roop Mahal store, exited the passenger side and then Nabi Hadi drove away. Shortly thereafter, the person alleged to be Mr. Hadi entered the passenger side of a grey Dodge Caravan with partial licence plate C**N 588. This vehicle was present at the shooting and the same vehicle arrived at 92 Crockford after the robbery, allegedly with Mr. Mitsakis and Mr. Bangura in it.
- At 12:56 p.m., one of the investigators, Det Balint, attended 104 Woodfern Drive in Scarborough because he “knew that Hadi brothers have lived” at that address. He saw the blue Santa Fe and a Range Rover. There were several people there, but Det. Balint was unable to identify them.
- Between 12:49 and 1:22 p.m., the covert camera at 92 Crockford captured all of the alleged co-conspirators (the person alleged to be Mr. Hadi, Wasi Hadi, Sami Hadi, the person alleged to be Mr. Mitsakis, Mr. Bangura, the person alleged to be Mr. Mohamed, Mr. Gharibzada, Mr. Newman, and Mr. Richards-Coleman) and a number of vehicles used during the robbery, including the grey Dodge Caravan, the blue Hyundai Santa Fe, and the silver Range Rover.
- At 1:09 p.m., Nabi Hadi removed a knapsack similar to one used by one of the robbers from the Santa Fe. The person alleged to be Mr. Hadi removed a hammer and a licence plate from the Range Rover and placed them in the Santa Fe. Later, the person alleged to be Mr. Hadi took the knapsack from Sami Hadi and put it in the Santa Fe. They drove away before the police arrived.
(ii) Identification
[28] Mr. Hadi’s primary position as outlined in his counsel’s written submissions is that the Crown has failed to prove that the individual alleged to be him in the video and audio surveillance is in fact him. As a result, the Crown cannot prove his membership in the conspiracy on a balance of probabilities, let alone beyond a reasonable doubt, or his participation in the robbery.
[29] The Crown invites me to compare the appearance of the individual said to be Mr. Hadi in the various videos to his appearance in a booking video made at the time of his arrest on June 27, 2019, as well as his appearance during the trial pursuant to R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. The comparison is important for three reasons.
[30] First, if it can be established that Mr. Hadi is the person in the videos, this would connect Mr. Hadi to the other alleged co-conspirators, to vehicles involved in the robbery, and to the location of the robbery earlier in the day it occurred.
[31] Second, there is no evidence that any of the telephone numbers associated with any of the intercepted communications were registered to Mr. Hadi and at no time do any of the parties to the intercepted calls identify themselves as Mr. Hadi. The only voice identification evidence relating to Mr. Hadi is based on a covert video made at 92 Crockford from May 3, 2019. In that video, the person said to be Mr. Hadi is seen sweeping the driveway outside the building while talking on the phone. In a contemporaneous intercepted telephone communication between Nabi Hadi and another person, the sound of sweeping can be heard in the background while the other person is speaking. Given Nabi Hadi’s connection to 92 Crockford, it is reasonable to infer that the person he was speaking to was the person who was sweeping outside 92 Crockford. If the covert video establishes that that person was Mr. Hadi, then it is reasonable to infer that Mr. Hadi was a party to other intercepted conversations involving the same telephone number used by a person with a similar voice.
[32] Third, there is no other evidence connecting Mr. Hadi to the other co-conspirators, any of the vehicles, or 92 Crockford Boulevard. There was no evidence of his fingerprints or DNA being found on any item, no evidence that any of the vehicles were registered in his name, and no evidence of any relation to or association with any of the other suspects. While Det. Balint testified that he “knew Hadi brothers have lived at” 104 Woodfern Avenue, he did not explain the source of this information or whom he was referring to. There are three individuals with the surname Hadi alleged to have been involved in these offences, but no evidence as to how they are related, if at all. Mr. Hadi was arrested almost two months after the robbery and there was no evidence as to where he was arrested. There is no evidence that he made any inculpatory statement.
[33] It is reasonable to infer that the person who had a conversation with Nabi Hadi at 8:10 a.m. on May 8, 2019 was the same person who parked next to him at the Roop Mahal store at 8:19 a.m. and got into the Santa Fe, as arranged during the telephone call. However, establishing that Mr. Hadi was the person in the call depends on the voice identification, which is turn depends on whether he can be identified in the May 3rd video.
[34] Having carefully viewed all of the videos on several occasions, I am satisfied that the person alleged to be Mr. Hadi is the same person in all of the videos. While he is hooded in the video taken at 8:19 a.m. on May 8th at the Roop Mahal store, he is clearly wearing the same clothing as seen later that day at 92 Crockford and it can be inferred that he is the person in the earlier intercepted telephone communication. I am also satisfied that this person was clearly part of the conspiracy. Put simply, the Crown’s case depends entirely on whether it can be established that the person in the videos is Mr. Hadi.
[35] As noted, I have watched the videos repeatedly. They are of fairly good quality. Most of them were taken from a distance away from the individual in question, although the covert camera at 92 Crockford does zoom in closer on several occasions. I have compared all of these to the booking video as well as Mr. Hadi’s appearance during the trial. The booking video is of good quality. Mr. Hadi’s entire body is seen during parts of it and his features are clear. While I could see Mr. Hadi’s face during the trial, which was conducted by videoconference, I did not see his entire body and the lighting was not particularly good.
[36] Mr. Hadi bears a clear resemblance to the person in the video. They both have full dark beards, are of similar build and appear to be of a similar age. While Mr. Hadi’s hair in the booking video is quite a bit shorter than the hair of the person in the video, I do not view this as significant given the amount of time that had passed. The issue I must determine is whether the similarities are such that I can be satisfied beyond a reasonable doubt that they are the same person.
[37] Having carefully considered the issue, I have concluded that while there are many similarities between Mr. Hadi’s appearance and that of the person in the videos, absent some other evidence, they are not sufficiently distinct to support the conclusion that they are the same person to the degree of certainty required to ground a criminal conviction. There is nothing particularly unique about any of the similar features. The person is of average, or perhaps a bit larger than average, build, as are many people. He does not seem to be unusually tall or short. Many people have full beards. At most, I can say that there is a fairly close resemblance between Mr. Hadi and the person in the video. But a resemblance, without more, does not amount to an identification: R. v. Rybak (2008), 2008 ONCA 354, 90 O.R. (3d) 81 (C.A.), at para. 121. The complete absence of other evidence linking Mr. Hadi to the other co-conspirators and the vehicles is, in my view, significant: R. v. Bero (2000), 151 C.C.C. (3d) 151 (Ont. C.A.), at paras. 57-58; R. v. John, 2010 ONSC 6085, at para. 110.
[38] I am satisfied that the person in the video and on the intercepted calls is probably Mr. Hadi. As a result, it could be argued that his probable membership in the conspiracy has been established because the person in the videos, who is probably Mr. Hadi, is in my view clearly a member of the conspiracy. However, even if the acts and declaration of the alleged co-conspirators is admissible against Mr. Hadi, nothing any of them said or did furthers the Crown’s case with respect to the issue of identification. After considering all of the evidence, including on the third stage of the Carter analysis, I am left with a reasonable doubt on the issue of identification.
[39] Mr. Hadi is found not guilty on Counts 1 and 2.
C. Mr. Mitsakis
(i) Evidence
[40] Mr. Mitsakis also accepts that a conspiracy existed, but not that he was a member of it. As a result, I need not consider the first stage of the Carter analysis.
[41] With respect to the second stage of the Carter analysis, the Crown submits that the following evidence is directly admissible against Mr. Mitsakis and therefore establishes his probable membership in the conspiracy as well as his participation in the shooting and therefore the robbery:
- The covert video shows that on the day before the robbery, the person alleged to be Mr. Mitsakis meets with a number of the co-conspirators at 92 Crockford. The blue Hyundai Santa Fe and the white Dodge Durango are present. The person alleged to be Mr. Mitsakis returns to 92 Crockford later in the day driving the white Dodge Durango.
- At 11:32 a.m. on the day of the robbery, the Peel Regional Police respond to a call about a shooting at the “Makeover Salon and Spa,” which is in a plaza a short distance from the Roop Mahal jewellery store. Security video from the plaza shows a person (alleged to be Mr. Mitsakis) wearing a green hoodie with white draw strings, light coloured pants, black gloves, black shoes, white socks, a dark facial covering and goggles being dropped off in a grey Dodge Caravan. Less than a minute later, the same person is seen along the front of the plaza with a beige handgun. The person fires a total of three rounds – two into the ceiling of the Makeover Salon and Spa and one into the ceiling of another business, iOptical, and then runs away. Other security video shows him re-entering the Dodge Caravan.
- The person alleged to be Mr. Mitsakis and Mr. Bangura are seen at 92 Crockford after the robbery meeting with all of the other alleged co-conspirators. They are seen getting in and out of the grey Dodge Caravan. The blue Hyundai Santa Fe and the silver Range Rover are also there. The person alleged to be Mr. Mitsakis is wearing a black glove, similar to that worn by the shooter.
- When the police arrive to arrest everyone, the person alleged to be Mr. Mitsakis and Mr. Bangura ran away. The person alleged to be Mr. Mitsakis is seen on video from a nearby address running wearing a grey hoodie, black boxer shorts and white socks. The police located torn beige pants and black Adidas shoes behind 92 Crockford. Mr. Mitsakis’s DNA was on the pants. Mr. Mitsakis was not apprehended at the time but was arrested at a later date.
- A loaded beige Glock firearm was located along the flight path taken by the person alleged to be Mr. Mitsakis and Mr. Bangura. A forensic analysis of three cartridge casings seized from the site of the shooting suggests that this was the gun that was used.
- A search of the Dodge Caravan resulted in the seizure of a green hoodie with white draw strings, a black face covering, grey pants, gloves and goggles, all similar to items worn by the shooter. There was forensic DNA evidence linking some of these items to Mr. Mitsakis.
(ii) Identification Based on the Videos
[42] As with Mr. Hadi, the Crown invites me to compare the appearance of the person in the videos said to be Mr. Mitsakis (except for the video of the shooter, who is disguised) with his appearance in a booking video made at the time of his arrest on August 5, 2019 and his appearance during the trial. I did so and concluded that Mr. Mitsakis bears a strong resemblance to that person. They have similar hair, a similar short beard, a similar build and appear to be of similar age. However, as with Mr. Hadi, based on the resemblance alone I am unable to conclude beyond a reasonable doubt that Mr. Mitsakis is the person in the videos.
(iii) DNA Evidence
[43] There is no question that the tan pants seized at the back of 92 Crockford came from the person in the video alleged to be Mr. Mitsakis. The person was seen wearing tan pants before the police arrived and is seen running away without pants immediately after.
[44] Dr. James Morrow, a forensic scientist from the Centre for Forensic Sciences (“CFS”) was qualified on consent to give opinion evidence respecting DNA comparisons. He testified that an examination of the waistband of the tan pants revealed the DNA profiles of at least two people. The profiles were compared with DNA from Mr. Mitsakis that had been seized pursuant to a warrant. According to Dr. Morrow, Mr. Mitsakis cannot be excluded as the donor of one of the samples and it is more than one trillion times more likely that the sample came from him than from an unknown person unrelated to him.
[45] Four profiles were also identified on a glove, track pants, a green hoodie, and a balaclava seized from the Caravan. Dr. Morrow concluded that Mr. Mitsakis cannot be excluded as the donor of one of the profiles on each of these items. The number of times more likely it was that the profile came from Mr. Mitsakis and three unknown people rather than four unknown people varied with respect to each item and was as follows: over one trillion (glove), 260 million (track pants), 5.8 million (hoodie) and 9.9 million (track pants).
[46] Dr. Morrow agreed that there was no way to tell when a DNA sample was deposited on an item. Samples can be deposited directly when the person touches the item in question, or indirectly when the object comes into contact with another object that the person had touched at some point.
[47] Relying on R. v. Spencer, 2020 ONCA 838, 154 O.R. (3d) 1 and R. v. Hodgson, 2017 ONSC 6870, counsel for Mr. Mitsakis points out that since more than one profile was found on the various items, it cannot be concluded that Mr. Mitsakis wore them on the day of the shooting. In my view, this submission fails to account for the cumulative effect of the evidence or the fact that unlike in Spencer and Hodgson, Mr. Mitsakis’s DNA was found on more than one item.
[48] Mr. Mitsakis’s DNA was found on the beige pants that had just been discarded by a person fleeing from the police who bears a strong resemblance to him as well as other items seized from a van that was connected to the distraction shooting. In my view, it is not reasonable to infer that Mr. Mitsakis wore the pants and the other items at some other time and that another person closely resembling him then wore them on May 8, 2019. The possibility of innocent coincidence can be safely excluded: Spencer, at para. 51. The only reasonable conclusion is that Mr. Mitsakis was the person wearing the tan pants on May 8, 2019.
(v) The Gun
[49] Three cartridge casings were located at the scene of the shooting. Jennifer Plath, a forensic scientist from the Firearms and Toolmarks Section of the CFS, conducted microscopic comparative examinations of those cartridge casing as well as casings obtained from test firing the gun seized at 92 Crockford. Ms. Plath was qualified to give expert evidence and testified that she was of the opinion that there was sufficient agreement between various characteristics of the casings such that she could conclude “within the limits of practical certainty” that they came from the same gun.
[50] As the defence did not take issue with Ms. Plath’s conclusions, I do not intend to analyse them in any detail and am prepared to rely on them. I took a different view with respect to Ms. Plath’s evidence in R. v. Donison, 2021 ONSC 2297, at paras. 188-196. However, the evidence in that case was significantly different. In Donison, there was no evidence that Ms. Plath had undergone any proficiency testing while in this case there was evidence that she underwent such testing annually. Unlike in Donison, she gave detailed evidence about error rates and validation studies that have been conducted with respect to this type of comparison. While Ms. Plath’s conclusions were reviewed by other CFS scientists in both cases, in this case she identified and outlined the qualifications of the other scientist.
[51] In the United States, the use of forensic feature-comparison such as this was the subject of a 2016 report by the President’s Council of Advisors on Science and Technology entitled Report to the President -- Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature Comparison Models (“PCAST”). The Report concluded that because of the subjective nature of forensic feature-comparison, the foundational validity and reliability of any method should be empirically established before such evidence is relied upon: “For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it”: PCAST, at p. 6. With respect to firearms analysis, the Report recommended, inter alia, that the expert conducting the examination undergo proficiency testing: PCAST, at pp. 112-113. As noted earlier, there was evidence of such testing in this case.
[52] Courts considering expert evidence are required to conduct an independent and objective evaluation of it to determine its reliability and cannot simply defer to the expert. As Professor Paciocco (now Paciocco J.A.) put it in “Taking a ‘Goudge’ Out of Bluster and Blarney: An ‘Evidence-Based Approach’ to Expert Testimony” (2008), 13 Can. Crim. L. Rev. 135, at p. 146 (cited with approval in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 117), “the ‘trust me’ approach, once typical in Canadian courts, has been replaced by the ‘persuade me’ standard.” In my view, the PCAST recommendations are helpful in this regard.
[53] I must respectfully disagree with the suggestion in R. v. Creary, 2021 ONSC 4937, at para. 34 that the PCAST report is some type of “evidence” that can only be considered if tendered as an exhibit at trial. The PCAST recommendations may assist in creating and applying a test to determine whether expert evidence respecting feature comparison analysis is sufficiently valid to be relied upon and in this sense is being used in much the same way as the court would consider legal precedents: Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.), at para. 47, per Weiler J.A., dissenting in part. In my view, the PCAST recommendations are akin to the recommendations of a commission of inquiry and while by no means binding, may be helpful to the court: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 30; Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 370, 311 N.R. 180, at para. 14.
(iv) Participation in the Shooting
[54] If Mr. Mitsakis was the person wearing the tan pants, then he is the person seen getting in and out of the Caravan on that date. The shooter, who was seen wearing a hoodie, gloves and a balaclava, was seen in that vehicle earlier in the day and the only reasonable inference is that the glove, hoodie and balaclava that were seized were worn by the shooter. Only one other person (alleged to be Mr. Bangura) was seen in that vehicle on that day. In my view, it is not reasonable to infer that Mr. Mitsakis wore the glove, hoodie and balaclava on some other occasion and that a different person wore them on the day of the shooting, discarded them and then vanished. The only reasonable conclusion is that Mr. Mitsakis wore those items on that day and that he was the shooter.
[55] Based on Ms. Plath’s evidence, I find that the gun seized at 92 Crockford was the gun used in the distraction shooting. As that gun was found near where Mr. Mitsakis fled, this strengthens my conclusion that Mr. Mitsakis was the shooter.
(v) Conclusion
[56] The shooting took place at a location and time proximate to the robbery. The vehicle used in the shooting was later at the same location as the vehicles used in the robbery. The only reasonable inference is that the shooting was, as the Crown alleges, intended to distract the police while the robbery was taking place. Mr. Mitsakis met with several of the co-conspirators the day before the robbery. The only reasonable inference is that he was involved in the plan to commit the distraction shooting as part of the plan to commit the robbery. In my view, Mr. Mitsakis’s participation in the shooting establishes that he was a member of the conspiracy not only on a balance of probabilities, but beyond a reasonable doubt. It also establishes that he aided the robbery and was therefore a party to it.
[57] Mr. Mitsakis is found guilty on Counts 1 and 2.
D. Mr. Bangura
(i) Evidence
[58] Mr. Bangura accepts that a conspiracy existed, but not that he was part of it.
[59] The Crown submits that the following evidence is directly admissible against Mr. Bangura and establishes his probable membership in the conspiracy and participation in the robbery:
- Mr. Bangura was in the van that Mr. Mitsakis exited prior to the distraction shooting and then re-entered, all of which occurred just before 11:30 a.m. on the day of the robbery.
- After the robbery, Mr. Bangura and Mr. Mitsakis arrive at 92 Crockford, where they wait for and meet all the other co-conspirators. Mr. Bangura and Mr. Mitsakis go in and out of the Dodge Caravan.
- When the police arrive at 1:24 p.m., Mr. Bangura attempts to flee but is arrested a short distance away.
- The firearm was located along the flight path Mr. Mitsakis and Mr. Bangura took when they fled.
- The items associated to the distraction shooter, including the green hoodie with white draw strings, black face covering, grey pants, gloves and goggles, were seized from the Dodge Caravan that Mr. Bangura had been in.
(ii) Was Mr. Bangura in the Van at the Time of the Shooting?
[60] Mr. Bangura acknowledges that he is the person seen in the covert video taken at 92 Crockford after the robbery on May 8, 2019, but submits that the evidence falls short of establishing that he was in the Caravan earlier when the distraction shooting took place.
[61] There were obviously at least two people in the Caravan when the distraction shooting took place, given how it drove away immediately after Mr. Mitsakis got into it. In my view, given that the Caravan arrived at 92 Crockford relatively soon after the shooting and that Mr. Mitsakis and the clothing he wore during the shooting were in it, the only reasonable inference is that it drove there directly from the shooting and Mr. Bangura was in it. The suggestion that at some point on the way to 92 Crockford the van stopped, the second individual got out and Mr. Bangura got in is, in my view, entirely speculative.
[62] In arriving at the conclusion that Mr. Bangura was in the van and involved in the distraction shooting, I have not relied on the fact that he attempted to flee when the police arrived, although the Crown submits that this should be considered as evidence of post-offence conduct. When the police arrived, there were many of them and their guns were drawn. In these circumstances, the fact that Mr. Bangura, a young Black male, attempted to flee may well be explained by factors other than an awareness of guilt: R. v. Davis, 2021 ONSC 8163, at paras. 53-58.
(iii) Conclusion
[63] Since Mr. Bangura was in the van when the shooting took place, he must have known about the shooting. Because the shooting was in integral part of the robbery, Mr. Bangura’s participation in it establishes his probable membership in the conspiracy. The question remains, however, whether his membership has been established beyond a reasonable doubt.
[64] Unlike with Mr. Mitsakis, there is no evidence that Mr. Bangura spoke to or met with any of the other conspirators prior to the robbery. However, he must have planned the shooting together with Mr. Mitsakis and must have been aware of the reason for it. As was stated in R. v. Longworth et al. (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.), at pp. 565-566:
… [I]t is not necessary to show that parties to a conspiracy were in direct communication with each other, or even that they were aware of the identity of the alleged co-conspirators. Moreover, it is not necessary to show that each conspirator was aware of all the details of the common scheme, but it must be shown that each of the conspirators were aware of the general nature of the common design and intended to adhere to it.
Based on the evidence in this case, I am satisfied beyond a reasonable doubt that Mr. Bangura was aware of the general nature of the scheme to rob the store and intended to adhere to it. I am also satisfied that by driving Mr. Mitsakis to and from the shooting, Mr. Bangura knowingly aided the robbery and was a party to it.
[65] Mr. Bangura is found guilty on Counts 1 and 2.
E. Mr. Mohamed
(i) Evidence
[66] While it is unclear from the written submissions prepared by counsel for Mr. Mohamed whether he accepts that a conspiracy existed, he does not suggest otherwise. In any event, for the reasons outlined earlier, I am satisfied that a conspiracy existed.
[67] The Crown relies on the following evidence with respect to Mr. Mohamed:
- The Range Rover, which was allegedly driven by Mr. Mohamed after the robbery, was seen in front of the Roop Mahal store at 8:19 a.m. on the day of the robbery together with the blue Santa Fe and was occupied by the person alleged to be Mr. Hadi. It was also noticed by Det. Balint when he attended 104 Woodfern Drive after the robbery.
- At 1:08 p.m., the Range Rover arrived at 92 Crockford and parked behind the Santa Fe. The driver, who is alleged to be Mr. Mohamed, was approached by Mr. Mitsakis and they had a conversation. The person alleged to be Mr. Hadi removed a hammer and a licence plate from the front passenger side of the Range Rover and put them in the Santa Fe.
- At 1:14 p.m., the Range Rover left 92 Crockford but returned two minutes later. The person alleged to be Mr. Mohamed got out of the driver’s seat and entered the building.
- The person alleged to be Mr. Mohamed re-entered the Range Rover and drove away just as the police arrived. When the police arrived, he allegedly began to drive at a high rate of speed while weaving in and out of traffic and then crashed into an unmarked police car, some concrete barriers and another vehicle. The sole occupant then got out and ran away through traffic. He was followed by D.C. Ross, who caught up to him, tackled him to the ground, and arrested him.
- According to MTO records, the licence plate on the Range Rover belonged to a different vehicle and had been noted as “missing”.
(ii) Identification
[68] In the written submissions filed by his counsel, Mr. Mohamed denies that he was ever in the Range Rover or that he attended 92 Crockford. I take this to mean that identification is in issue.
[69] The person alleged to be Mr. Mohamed drove away in the Range Rover at about 1:23 p.m., according to the covert video, or 1:24 p.m., according to Sgt. Arulanandam and D.C. Ross, two police officers who had arrived at 92 Crockford to participate in the take-down. The two officers saw the Range Rover drive northbound on Crockford Boulevard, make a U-turn, and then go southbound at a high speed.
[70] Sgt. Arulanandam followed the Range Rover and saw it go south on Crockford Boulevard and then west on Bertrand Avenue. P.C. Smith, a police officer who assisted in the take-down, was driving northbound on Crockford Boulevard when he noticed a Range Rover driving southbound in the northbound lane at a high rate of speed. The Range Rover narrowly missed P.C. Smith’s vehicle. P.C. Smith did not note the exact time he saw this, but it was some time after 1:25 p.m.
[71] Four unmarked police cars followed the Range Rover and tried to contain it. The Range Rover hit two of the police vehicles and then a concrete barrier. According to D.C. Ross, after hitting the barrier the Range Rover became airborne and then entered the intersection of Bertrand Avenue and Warden Avenue, where it collided with another vehicle.
[72] According to D.C. Ross, the driver of the Range Rover got out and began to run away through traffic, where he was almost hit by a couple of vehicles. He made it to the sidewalk and began to run southbound on Warden Avenue. D.C. Ross drove through the intersection and kept watching the person. He then stopped his vehicle and chased the suspect on foot. He yelled “Police, you’re under arrest” several times, but the person did not stop. Eventually, he tackled the person to the ground.
[73] There is no issue that the person who was tackled to the ground and arrested was Mr. Mohamed. D.C. Ross testified that this was the person he saw exit the Range Rover and his evidence on this point was not challenged. D.C. Ross and Sgt. Arulanandam had the Range Rover under observation from the time it left 92 Crockford to when it stopped and the driver got out. Based on this, I am satisfied beyond a reasonable doubt that Mr. Mohamed was the person driving and getting in and out of the Range Rover at 92 Crockford after the robbery.
(iii) Participation in the Conspiracy and the Robbery
[74] Mr. Mohamed first came to the attention of the police when he was seen in the Range Rover after the robbery. There is no evidence that Mr. Mohamed had any interaction with the other co-conspirators prior to or at the time of the robbery. His only role was that he drove the Range Rover that had been seen outside the Roop Mahal store earlier that day and in which there was a hammer and items of clothing which it can be inferred were used in the robbery. There is no evidence as to when or in what circumstances Mr. Mohamed came to be in the Range Rover. Given that there was evidence that different people drove different vehicles at different times, I am not prepared to conclude that Mr. Mohamed was driving the Range Rover when it was seen earlier that day at the Roop Mahal store or 104 Woodfern Drive.
(iv) Post-Offence Conduct
[75] In my view, Mr. Mohamed’s actions prior to the take-down are insufficient to establish his probable membership in the conspiracy. However, the Crown also relies on Mr. Mohamed’s actions after the police arrive, which the Crown submits is evidence of post-offence conduct. Mr. Mohamed, unlike Mr. Bangura, was already driving away when the police arrived and there is no evidence that he would have seen their firearms.
[76] Evidence that “an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person” can be considered together with other circumstantial evidence in determining whether the Crown has proven its case: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 18. However, it has been recognized that reliance on this type of evidence gives rise to a risk of error if a trier of fact draws an inference of guilt from evidence of post-offence conduct without considering alternative explanations for the conduct: White, at paras. 23-24.
[77] Evidence of post-offence conduct can be probative of a variety of issues, including identity or intent. When considering such evidence, it is important that a trier of fact identify the issues to which the evidence relates and not treat it as an “amorphous whole” that is potentially relevant to all issues, particularly where an accused is charged with more than one offence: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 91. In this case, in addition to conspiracy to commit robbery and robbery, Mr. Mohamed is also charged with being an accessory after the fact to robbery. In these circumstances, I am unable to conclude whether his flight from police was due to his participation in the conspiracy and the robbery or his being an accessory after the fact.
(v) Conclusion
[78] It is clear from Mr. Mohamed’s conduct when the police arrived that he knew that they were coming to arrest the people at 92 Crockford, and I infer from this that he was aware that a robbery had been committed. I also infer that he was present to assist the others in some capacity, which I will discuss in further detail later in these reasons when I consider the accessory charge in relation to him. However, given the absence of any evidence of Mr. Mohamed’s involvement prior to this point, I am not satisfied beyond a reasonable doubt that he was a member of the conspiracy or that he participated in the robbery.
[79] Mr. Mohamed is found not guilty on Counts 1 and 2.
V. COUNT 5 – CONSPIRACY TO COMMIT RECKLESS DISCHARGE OF A FIREARM (MR. MITSAKIS AND MR. BANGURA)
[80] Mr. Mitsakis and Mr. Bangura are charged with conspiring to commit an offence contrary to s. 244.2 of the Criminal Code, which provides as follows:
244.2 (1) Every person commits an offence
(a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or
(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.
(2) For the purpose of paragraph (1)(a), place means any building or structure — or part of one — or any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.
[81] For the reasons outlined earlier, the evidence supports the conclusion that Mr. Mitsakis and Mr. Bangura were part of a plan to have Mr. Mitsakis discharge a firearm at a shopping plaza near the location of the robbery. The shopping plaza is clearly a “building or structure.” It is obvious that people were present. Even if they were not, the shooting took place at around 11:30 a.m., when people would reasonably be expected to be present. Based on this, I am satisfied beyond a reasonable doubt that Mr. Mitsakis and Mr. Bangura conspired to commit the offence of recklessly discharging a firearm.
[82] Mr. Mitsakis and Mr. Bangura are found guilty on Count 3.
VI. COUNT 4 – RECKLESS DISCHARGE OF A FIREARM (MR. MITSAKIS)
[83] For the reasons outlined earlier, I am satisfied beyond a reasonable doubt that Mr. Mitsakis is the person who discharged the firearm during the distraction shooting and that he did so at a “building or structure” where other people were present or was reckless as to their presence.
[84] Mr. Mitsakis is found guilty on Count 4.
VII. COUNT 5 – HAVE FACE MASKED WITH INTENT (MR. MITSAKIS)
[85] Mr. Mitsakis is charged in Count 4 with an offence contrary to s. 351(2) of the Criminal Code, which provides as follows:
- (2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years;
[86] I have already explained why I am satisfied beyond a reasonable doubt that Mr. Mitsakis was the person who discharged the firearm during the distraction shooting. When he did so, he was wearing a facial covering and goggles, which clearly constitutes having his “face masked … or otherwise disguised.” The Crown must prove that he was masked with the intent to commit a specific indictable offence: R. v. Shay (1976), 1976 CanLII 1379 (ON CA), 32 C.C.C. (2d) 13 (Ont. C.A.). The obvious specific indictable offence is the one he actually committed, the reckless discharge of the firearm.
[87] Mr. Mitsakis is found guilty on Count 5.
VIII. COUNTS 6 TO 8 – FIREARM POSSESSION OFFENCES (MR. MITSAKIS AND MR. BANGURA)
A. Overview
[88] Mr. Mitsakis and Mr. Bangura are jointly charged with possessing a loaded, restricted firearm without being the holder or a licence or authorization to possess it, contrary to s. 95(1) of the Criminal Code (Count 6), being the occupants of a motor vehicle knowing that there was a restricted firearm in it for which no occupant had a licence or authorization, contrary to s. 94(1) (Count 7), and possessing a prohibited device (an overcapacity magazine) knowing that he was not the holder of a licence or authorization to possess it, contrary to s. 92(2) (Count 8).
[89] There is no issue that the firearm that was seized at 92 Crockford was a restricted firearm, that the overcapacity magazine that was seized with it is a prohibited device, and that neither Mr. Mitsakis nor Mr. Bangura had a licence or authorization to possess any of these items.
[90] Possession is defined in s. 4(3) of the Criminal Code in the following terms:
4.(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
All forms of possession require proof of actual knowledge as well as a measure of control: R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at paras. 15-16, aff’d 2006 SCC 26, [2206] 1 S.C.R. 940. Proof of subjective knowledge is required. Proving that a defendant ought to have known of the existence of the prohibited item is insufficient: R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, at paras. 29-30. The Crown is also required to prove that each accused had control over the prohibited item, not simply some element of control over the premises where the item was kept: R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 23.
B. Count 6
[91] For the reasons outlined earlier, I am satisfied beyond a reasonable doubt that Mr. Mitsakis discharged the firearm and therefore had personal possession of it.
[92] Since the firearm was later seized at 92 Crockford, it is clear that it was transported there in the van driven by Mr. Bangura, which in my view means that he had a measure of control over it. Given his involvement in the distraction shooting plan, he also had knowledge of it.
[93] Mr. Mitsakis and Mr. Bangura are both found guilty on Count 6.
C. Count 7
[94] For the reasons I have explained, I am satisfied beyond a reasonable doubt that Mr. Mitsakis and Mr. Bangura were both in the van and knew that the firearm was in it.
[95] Mr. Mitsakis and Mr. Bangura are both found guilty on Count 7.
D. Count 8
[96] The overcapacity magazine was with the gun. Mr. Mitsakis had personal possession of the gun and must have been aware of the nature of the magazine. However, there is no evidence that Mr. Bangura personally possessed the gun. Although he was likely aware of the nature of the magazine, I am not satisfied of this beyond a reasonable doubt.
[97] Mr. Mitsakis is found guilty on Count 8. Mr. Bangura is found not guilty on Count 8.
IX. COUNT 9 – ACCESSORY AFTER THE FACT TO ROBBERY (MR. MITSAKIS AND MR. BANGURA)
(i) The Elements of the Offence
[98] An accessory after the fact is defined in s. 23 of the Criminal Code in the following terms:
23(1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
[99] To obtain a conviction for this offence, the Crown must prove that (1) another person committed an offence; (2) the defendant knew that the other person committed the offence; (3) the defendant did something to provide assistance to the other person; and (4) the defendant provided the assistance for the purpose of helping the other person to escape. The Crown must charge and prove the commission of a specific offence committed by the person being assisted: R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 39 O.R. (3d) 161 (C.A.) at para. 19. For the purposes of s. 23, the term “escape” is not restricted to escaping arrest or apprehension and broadly includes “escaping justice” or avoiding prosecution or punishment: R. v. Paradis, 1977 CanLII 155 (SCC), [1978] 1 S.C.R. 264, at p. 273; R. v. D.G.H., 2009 SKPC 24, 335 Sask. R. 51, at paras. 47-49; R. v. Hubley, 2017 NSSC 44, at para. 103.
[100] The Crown submits that Mr. Mitsakis and Mr. Bangura were accessories after the fact in two ways: (1) by committing the distraction shooting in order to distract the police so the robbers could get away; and (2) by wiping down the Dodge Caravan and attempting to dispose of the gun and other items in it.
(ii) The Distraction Shooting
[101] For the reasons outlined earlier, I am satisfied beyond a reasonable doubt that Mr. Mitsakis and Mr. Bangura planned the distraction shooting for the purpose of facilitating the robbery, which they were aware was about to occur. However, in my view this does make them guilty of the offence of being accessories after the fact for the simple reason that the distraction shooting took place before the robbery. One cannot be an accessory after the fact in relation to an offence before it occurs. The plain language of s. 23 supports my conclusion. It states that “An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence” assists the person to assist his or her escape.
[102] Being an “accessory before the fact” was an offence at common law and related to a person “who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony”: R. v. Browne (1881), 6 O.A.R. 386 (C.A.). The term appears to have been used synonymously with “aiding and abetting,” forms of party liability now codified in s. 21(1) of the Criminal Code: R. v. Preston, 1949 CanLII 64 (SCC), [1949] S.C.R. 156, at pp. 164-165, per Kellock J., dissenting. In my view, if the offence of being an accessory after the fact is interpreted to include those who assist in the commission of offences before it occurs, there would be considerable overlap between s. 21(1) and s. 23 such that the former would be almost, although perhaps not completely, redundant: Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paras. 31-38; R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 491, at para. 107.
[103] In any event, in the context of this case, where Mr. Mitsakis and Mr. Bangura have already been found guilty of robbery as parties to the offence, a conviction for being an accessory based on the same conduct would inevitably result in the conviction being conditionally stayed pursuant to the rule against multiple convictions: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-753.
[104] For these reasons, I would not find Mr. Mitsakis or Mr. Bangura guilty of being accessories after the fact based on their participation in the distraction shooting.
(iii) Wiping Down the Van and Disposing of the Gun and Clothing
[105] After the Dodge Caravan arrived at 92 Crockford following the robbery, the covert camera captured Mr. Mitsakis wiping down parts of the van while Mr. Bangura sat in the passenger seat.
[106] After the police arrived, Mr. Mitsakis and Mr. Bangura got out of the van and attempted to flee. Mr. Mitsakis is seen on the security video from a nearby property running without any pants on, and a pair of tan pants are found near the fence in the area he ran to. It is clear that Mr. Mitsakis discarded his pants as he ran from the police.
[107] As noted earlier, the police located a loaded handgun as well as shoes and other items, also in the area where Mr. Mitsakis and Mr. Bangura were running. I infer from this that one or both of them discarded these items.
[108] Based on this, I infer that Mr. Mitsakis wiped the van down to remove any fingerprints or other evidence. Mr. Bangura was present when this occurred, and the Crown submits that his presence somehow makes him legally responsible for Mr. Mitsakis’s actions. While I have considerable doubt as to the validity of this submission, for reasons that will become apparent it is not necessary to resolve this issue.
[109] I also infer that Mr. Mitsakis discarded the gun because he believed that it may be evidence against him.
[110] In my view, it is clear that at least Mr. Mitsakis engaged in conduct with the intention of facilitating escape, although the evidence falls short of establishing that Mr. Bangura did so. What is not clear in my view is that Mr. Mitsakis performed these actions to assist anybody other than himself. There is no basis to conclude that there was any evidence in the van that would implicate anyone who had participated in the robbery, nor was there any evidence that the pants, gun or other items would do so. One of the essential elements of the offence of being an accessory after the fact is that the conduct forming the actus reus be for the purpose of assisting another person to escape. That element has not been proven.
[111] Mr. Mitsakis and Mr. Bangura are found not guilty on Count 9.
X. COUNT 10 – ACCESSORYAFTER THE FACT TO ROBBERY (MR. MOHAMED)
A. The Crown’s Theory
[112] Mr. Mohamed is also charged with being an accessory after the fact to the robbery. The Crown relies on evidence that he drove the Range Rover to 92 Crockford after the robbery. When he arrived there, the person alleged to be Mr. Hadi removed a hammer and a licence plate from the vehicle and put it into another vehicle. When the police later searched the Range Rover, they found items of clothing similar to that worn by one of the individuals who had entered the Roop Mahal store. There was also evidence that the licence plate on the Range Rover belonged to another vehicle. It is the Crown’s theory that Mr. Mohamed was assisting in moving and disposing of items that had been used in the robbery.
B. Did Mr. Mohamed Know That a Robbery Had Been Committed?
[113] There is no issue that a robbery took place. However, Mr. Mohamed does not appear on any of the video or intercepted communications prior to his arrival at 92 Crockford in the Range Rover, nor did any witness testify to seeing him before then. To obtain a conviction on this count, the Crown must be able to prove that Mr. Mohamed knew that the robbery had taken place.
[114] As summarized earlier, the evidence establishes that once the police arrived, Mr. Mohamed fled, first in the Range Rover and then on foot. The manner in which he did so indicates a desperate wish to avoid being apprehended. At the time Mr. Mohamed fled, the police had said or done nothing to suggest that they were going to arrest him. In my view, his actions clearly show that he was aware that a crime had taken place and that the reason the police were there was to arrest those who had been involved, including himself. By that point, he had had discussions with some of the others and was present when the hammer was removed from the Range Rover. The only reasonable inference is that he was fully aware of what crime had taken place.
C. Did Mr. Mohamed Do Anything to Provide Assistance to the Robbers
[115] Mr. Mohamed drove the Range Rover and the items that were in it to 92 Crockford and was driving the Range Rover to some other location when the police arrived. The only reasonable inference in these circumstances is that he was assisting the robbers by disposing of things that had been used in the robbery.
D. Did Mr. Mohamed Provide Assistance for the Purpose of Helping the Others Escape?
[116] As noted earlier, I am not satisfied beyond a reasonable doubt that Mr. Mohamed participated in the robbery. I am satisfied that the only conceivable purpose he could have had in assisting with the disposal of evidence was to assist others in avoiding prosecution.
[117] Mr. Mohamed is found guilty on Count 10.
XI. COUNTS 11 AND 12 – DRIVING OFFENCES (MR. MOHAMED)
A. Overview
[118] For the reasons outlined earlier, I am satisfied beyond a reasonable doubt that Mr. Mohamed was driving the Range Rover when the police arrived and that he did so in the manner described by the police witnesses. Based on this evidence, Mr. Mohamed is charged with dangerous operation of a conveyance, contrary to s. 320.13(1) of the Criminal Code (Count 11) and failing to stop a motor vehicle while being pursued by the police, contrary to s. 320.17 (Count 11).
B. Dangerous Operation of a Conveyance
(i) The Elements of the Offence
[119] Section 320.13(1) of the Criminal Code provides as follows:
320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
[120] The elements of the offence of dangerous operation were explained in R. v Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, applying the earlier decision in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49:
The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code) [since repealed and replaced by s. 320.13]. The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48).
(ii) Application to the Facts
[121] Mr. Mohamed drove at a high rate of speed in the wrong lane. He narrowly missed one police vehicle and hit two others, as well as a concrete barrier. The vehicle he was driving became airborne and landed in an intersection, where it collided with another vehicle. There can be no doubt that Mr. Mohamed’s driving was dangerous to the public in the circumstances and constituted a marked departure from the standard of care of a reasonably prudent driver, if not a drastic one.
[122] Mr. Mohamed is found guilty on Count 11.
C. Failing to Stop While Pursued by Police
(i) The Elements of the Offence
[123] Section 320.17 of the Criminal Code provides as follows:
320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.
To obtain a conviction for this offence, the Crown must prove that (1) the defendant was operating a motor vehicle; (2) a peace officer was pursuing the defendant in another motor vehicle; (3) the defendant knew that he was being pursued by a peace officer; (4) the defendant failed to stop as soon as is reasonable in the circumstances; and (5) the defendant had no reasonable excuse for his failure to stop: R. v. Kulchisky, 2007 ABCA 110, at para. 4; R. v. McLean, 2016 ONCA 38, 93 M.V.R. (6th) 1, at para. 6. While an earlier version of the offence in s. 249.1 of the Code (which has since been repealed) included the requirement that the defendant fail to stop “in order to evade the peace officer,” s. 320.17 contains no such requirement.
(ii) Application to the Facts
[124] It is clear from the evidence of the police witnesses that they were pursuing Mr. Mohamed in their motor vehicles. I am satisfied beyond a reasonable doubt that Mr. Mohamed knew that he was being pursued by police officers. That is why he drove in the manner that he did. It would have been reasonable in the circumstances for Mr. Mohamed to stop much sooner than he did. Indeed, he only stopped once his vehicle collided with another car. There is no suggestion that Mr. Mohamed had a reasonable excuse for his conduct.
[125] Mr. Mohamed is found guilty on Count 12.
XI. DISPOSITION
A. Abdul Wasi Hadi
[126] The verdicts with respect to Mr. Hadi are as follows:
- Count 1 (conspiracy to commit robbery): Not guilty
- Count 2 (robbery): Not guilty
B. Peter Mitsakis
[127] The verdicts with respect to Mr. Mitsakis are as follows:
- Count 1 (conspiracy to commit robbery): Guilty
- Count 2 (robbery): Guilty
- Count 3 (conspiracy to commit reckless discharge of firearm): Guilty
- Count 4 (reckless discharge of firearm): Guilty
- Count 5 (face masked with intent): Guilty
- Count 6 (possession of loaded restricted firearm without authorization): Guilty
- Count 7 (occupying vehicle with firearm): Guilty
- Count 8 (possession of prohibited device): Guilty
- Count 9 (accessory after the fact to robbery): Not guilty
C. Alhaji Bangura
[128] The verdicts with respect to Mr. Bangura are as follows:
- Count 1 (conspiracy to commit robbery): Guilty
- Count 2 (robbery): Guilty
- Count 3 (conspiracy to commit reckless discharge of firearm): Guilty
- Count 6 (possession of loaded restricted firearm without authorization): Guilty
- Count 7 (occupying motor vehicle with firearm): Guilty
- Count 8 (possession of prohibited device): Not guilty
- Count 9 (accessory after the fact to robbery): Not guilty
D. Shahabeldin Mohamed
[129] The verdicts with respect to Mr. Mohamed are as follows:
- Count 1 (conspiracy to commit robbery): Not guilty
- Count 2 (robbery): Not guilty
- Count 10 (accessory after the fact to robbery): Guilty
- Count 11 (dangerous operation of a conveyance): Guilty
- Count 12 (failure to stop when pursued by police): Guilty
Justice P.A. Schreck
Released: May 13, 2022
COURT FILE NO.: CR-21-10000146-0000
DATE: 20220513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDUL WASI HADI, PETER MITSAKIS, ALHAJI BANGURA and SHAHABELDIN MOHAMED
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: May 13, 2022