COURT FILE NO.: CR 21-50000020-0000
DATE: 20220629
REVISED: 20221025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARC OWUSU-BOAMAH
Ken Lockhart, for the Crown
Andrew Stastny, for Mr. Owusu-Boamah
HEARD: January 4-7, 10, 2022
REVISED REASONS FOR JUDGMENT[^1]
R. MAXWELL J.
Overview
[1] The accused, Mr. Owusu-Boamah is charged with kidnapping the complainant, Severin Manov, extortion, using a firearm in the commission of an indictable offence, aggravated assault, administering noxious substance, fraud under $5000, and failing to comply with a probation order, contrary to the Criminal Code.[^2] He pled not guilty on all counts and elected to have a trial before me. The trial was conducted entirely over Zoom on consent of all parties.
[2] The main issue in the case is identification.
[3] At the end of the trial, the matter was adjourned for judgment. Before the matter returned before me for judgment, Mr. Owusu-Boamah absconded and a warrant was issued for his arrest. On April 12, 2022, I determined that it was in the interests of justice to proceed with judgment in the absence of the accused. I advised the parties that I found the Crown had established Mr. Owusu-Boamah’s guilt on all counts beyond a reasonable doubt, with reasons to follow. These are my reasons.
Factual Background
[4] On January 25, 2020, Mr. Manov was kidnapped from a parking lot of a residential apartment building at 2645 Kipling Avenue by a group of masked men. The timeline of the kidnapping is documented by video surveillance seized by the police from the apartment building and is not in dispute.[^3]
[5] At approximately 2:06pm, Mr. Manov’s silver BMW was driven into the parking lot of 2645 Kipling Avenue and parked in a parking spot. Shortly thereafter, two men in black hoods exited a silver Dodge Journey van parked several cars down from the silver BMW. The two men entered the silver BMW. A short time later, the video surveillance captured the Dodge Journey leaving its parking spot and stopping just before the parking spot where the silver BMW was parked. The two men in black hoods exited the silver BMW and approach the Dodge Journey. Shortly thereafter, the Dodge Journey departed from the parking lot, followed immediately by the silver BMW.
[6] As will be discussed below, at this time, Mr. Manov was inside the Dodge Journey. His BMW was driven to and from the parking lot by one or more of the group who kidnapped him.
[7] For the next 12-14 hours, Mr. Manov was held against his will. During the kidnapping, Mr. Manov was tortured by having hot liquid poured over the mid-section of his body causing 2nd degree burns to his stomach, legs, arms, hands, neck, and nose. He had lacerations on his wrists, which I find came from having his hands bound, and bruising to his forehead from being struck with a hard object.[^4]
[8] Ultimately, Mr. Manov was driven to a residential neighborhood in Mississauga. At 4:14am, he was removed from the trunk of a car and left in the roadway.[^5] He made his way to a home on Full Moon Circle in Mississauga and rang the doorbell equipped with video surveillance to ask for help[^6]. Police and ambulance services attended and Mr. Manov was transported to the hospital for treatment.
[9] There is no dispute that Mr. Manov’s debit cards were used over the course of the evening of January 25, 2020 into the early morning hours of January 26, 2020 to make, or attempt to make, withdrawals of cash and/or conduct transactions using accounts he held at the TD Bank.
[10] The Crown introduced documentation related to transactions completed or attempted on Mr. Manov’s personal and business accounts on January 25 and 26, 2020 through Lisa MacKenzie, a senior investigator with TD Bank Global Security and Investigations. Mr. Manov had two debit cards, one associated to him personally and the other in the name of his business, Manoff Transport Inc.[^7] Bank records and surveillance video from TD ATM machines located at 2574 Finch Avenue, 2390 Keele Street, and 2933 Major Mackenzie Drive respectively establish that transactions were completed or attempted, and inquiries made, on Mr. Manov’s accounts.
[11] The Crown also called evidence and filed documentation related to transactions completed or attempted on January 25, 2020 using Mr. Manov’s debit cards at two Cash Money stores – one located at 4080 Highway 7 and the other located at 2363 Finch Avenue West.[^8]
[12] The combination of video surveillance, banking records from the various TD Bank branches, and transaction records from the Cash Money locations establishes how and when the accounts were accessed to make transactions. Specifics of the transactions will be discussed shortly in reviewing the evidence of identification.
Positions of the Parties
[13] The Crown’s evidence of identification is circumstantial and rests on video surveillance from several locations, evidence of financial transactions conducted at Cash Money locations using the complainant’s debit cards, and fingerprint analysis. On behalf of the Crown, Mr. Lockhart argues that when the circumstantial evidence is viewed in totality, it establishes proof beyond a reasonable doubt that Mr. Owusu-Boamah was either a principal or party to all the offences. Specifically, Mr. Lockhart submits that Mr. Owusu-Boamah is the man who appears in video surveillance wearing a distinctive Nike Air tracksuit and who is involved in all stages of the incident.
[14] On behalf of Mr. Owusu-Boamah, Mr. Stastny argues that the Crown’s evidence does not establish, beyond a reasonable doubt, that Mr. Owusu-Boamah committed any of the offences. He points to the absence of any direct evidence identifying Mr. Owusu-Boamah as one of the perpetrators. As to the circumstantial evidence, he argues that it does not establish Mr. Owusu-Boamah’s identity as one of the perpetrators because there are other inferences which are inconsistent with guilt that arise from the evidence.
Applicable Legal Principles
[15] Mr. Owusu-Boamah is presumed to be innocent of these charges. There is no burden on him to prove or disprove anything. The burden to prove the case beyond a reasonable doubt always rests with the Crown.
[16] The Court of Appeal for Ontario summarized the proper approach to circumstantial evidence in R. v. Lights, 2020 ONCA 128 (Ont. C.A.), at paras. 36-37:
When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 100, at para. 20.
To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King, (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. (emphasis added)
See also R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Hudson, 2021 ONCA 772, at para. 70.
[17] As noted in Villaroman, at para. 30, where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact must be careful about too readily drawing inferences of guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits. The mischief of inference-drawing from circumstantial evidence arises where the trier of fact may conclude prematurely that a defendant is guilty without considering whether there are “reasonable alternative inferences”.
[18] Inferences consistent with innocence do not have to arise from proven facts: Lights, at para. 38. Justice Fairburn (as she then was) succinctly summarized this principle in R. v. Gill, 2017 CarswellOnt 9696, [2017] O.J. No. 3258 (Ont. S.C.), at paras. 11-12:
Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4 (S.C.C.), at para. 58, the defence does not have to “‘prove’ certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”
[19] A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A theory alternative to guilt can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38 and para. 43.
[20] The Crown need not negate every conjecture consistent with innocence to prove guilt beyond a reasonable doubt: R. v. Onyedinefu, 2018 ONCA 795, at para. 12. The 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”: Villaroman, at para. 38.
Analysis and Factual Findings
[21] Although there is no disagreement that Mr. Manov was kidnapped, some of the events leading up to the kidnapping are disputed. The evidence of what occurred before the kidnapping, while not directly relevant to the issue of identity, is relevant to putting the kidnapping in context and understanding how the men who kidnapped Mr. Manov worked together in a planned and coordinated fashion for a common purpose of extorting money from him through violence.
i. Events Leading Up to the Kidnapping
[22] The only evidence of the events leading up to the kidnapping comes from Mr. Manov’s testimony. In cross-examination, Mr. Stastny challenged the credibility of Mr. Manov’s evidence about the events surrounding the kidnapping and urged me to reject Mr. Manov’s evidence.
[23] I agree with Mr. Stastny that there are elements of Mr. Manov’s evidence about the encounters which preceded the kidnapping which are implausible. However, I find that the areas where Mr. Manov was being less than candid concern only his assertion that the kidnapping and extortion was random, not targeted, and that he does not know why this happened. There is evidently more to the story than Mr. Manov wished to share in his evidence.
[24] With that said, the motive or explanation for why this occurred is not directly relevant to the central issue in this case, which is whether the evidence establishes that Mr. Owusu-Boamah was one of the men involved in the crime. I find that, when viewed as a whole and in the context of the rest of the evidence, the core of Mr. Manov’s account about what happened leading up to the kidnapping is credible. Further, many parts of his evidence are corroborated by other evidence. With certain caveats, I accept that the prior encounters occurred in the manner in which Mr. Manov described and that he was generally truthful in his account of what led up to the kidnapping.
The December 19, 2019 Incident
[25] Mr. Manov testified that he was first confronted by masked men who demanded money from him on December 19, 2019. He testified that he was driving home on Scarlett Road in his silver BMW when his vehicle was cut off by another silver vehicle, forcing him to stop. He initially thought he was being carjacked. Two men exited the passenger front and rear doors of the vehicle and approached Mr. Manov’s vehicle. Mr. Manov testified that one man pointed a gun at him and demanded that he open his door. The two men entered his vehicle – one in the front passenger seat and the other in the rear passenger seat. The man in the front passenger seat pointed a gun at Mr. Manov.
[26] Mr. Manov described the man with the gun in the front passenger seat as having dark skin, wearing dark clothing, a bandana covering his head, and a mask with white spots covering his face. He estimated the man was approximately his height (5’9”). The man in the back seat was also black, wearing a greenish hooded jacket with fur trim on the hood. The hood was zipped up to his eye line and Mr. Manov could not see his face. He could not describe the man’s height or build because he was seated and wearing a winter coat.
[27] Mr. Manov testified he had never seen either man before.
[28] The man with the gun demanded Mr. Manov give them $50,000 and threatened to kill him and his family if he called the police. Mr. Manov agreed to pay them.
[29] The men searched the car and located $3000-4000 in the center console, which Mr. Manov said he had obtained in preparation for an upcoming family vacation to Florida. The men said they would contact him, although no contact information was exchanged. They departed in their vehicle and Mr. Manov drove home. He testified that he did not call the police because the men threatened him and his family and he did not believe the police could help.
[30] I accept that this initial encounter occurred in the manner described by Mr. Manov. His evidence that a group of men demanded money from him is consistent with the undisputed fact that, just over a month later, Mr. Manov was kidnapped and extorted for money. I also accept his evidence that the men concealed their faces and one had a gun which he used to intimidate him.
[31] I do not accept the implicit assertion in Mr. Manov’s evidence that this encounter was random. If this was a random act, then Mr. Manov would surely have called the police or alerted his family to the danger they faced. I also do not accept that Mr. Manov did not know what this was about. On his evidence, he accepted their demand to pay $50,000, without question. It is implied in his evidence that he knew these men could contact him without providing them with contact information.
[32] The only reasonable inference arising from Mr. Manov’s evidence about this encounter is that these men targeted him and that Mr. Manov had some knowledge of why money was being demanded from him. With that said, I accept Mr. Manov’s evidence that because the men wore masks, he could not see their faces. It is also possible that Mr. Manov knew why he was being targeted, but did not know the identity of these specific men (for example, if the men were acting on behalf of another party).
[33] Ultimately, I need not resolve whether Mr. Manov was being truthful when he testified that he could not identify any of the men, since the Crown does not rely on Mr. Manov’s evidence for identification. Further, as previously noted, the motivation of the men involved in extorting Mr. Manov does not bear on the main issue in this case, that is, the identity of Mr. Owusu-Boamah as one of the perpetrators.
Incidents between January 10 and January 24, 2020
[34] Mr. Manov testified that on January 10 or 11, after returning home from vacation, he was contacted by the men via WhatsApp, a smartphone application. The men again demanded money and Mr. Manov agreed to meet them at a Shell gas station located at Dixie and Britannia Road.
[35] An hour after receiving the text from the men, Mr. Manov arrived at the Shell gas station in his silver BMW and parked. A silver vehicle (which he testified appeared to be the same vehicle as the one from the Scarlett Road incident) pulled up next to his vehicle. A man exited from the front passenger seat and entered the front passenger seat of Mr. Manov’s BMW. Mr. Manov gave the man $2000 in cash. When the man demanded the full amount of $50,000, Mr. Manov asked for more time. Mr. Manov testified that the man took a pair of expensive sunglasses and a portable GPS device from the centre console and left his vehicle.
[36] Mr. Manov described the man as a black man wearing dark clothing, with his head covered in a bandana and a mask over his face such that he could only see his eyes. He could not say whether this man was one of the men he encountered during the Scarlett Road incident.
[37] Mr. Manov testified that the men contacted him via text WhatsApp text messaging to renew the demand for money after the January 10/11 meeting at the Shell gas station. He testified that there was an urgency in the texts. In addition to text messages, Mr. Manov had four or five meetings with the men at the Shell gas station or at a location on Major Mackenzie Drive. He testified that he typically entered their vehicle for the meetings and that there were typically three or four men in the vehicle. He was not able to see any of the men’s faces during these meetings, as their faces were covered with head covers and masks.
[38] While there was no physical violence during these meetings, Mr. Manov testified to at least one incident, the day before the kidnapping, during which a man in the vehicle held a gun in his hand, which he took to be a threatening gesture. Mr. Manov testified that over this period, he asked his dispatcher Sandeep Bopari to make two e-transfers to the men – one in the amount of $400 and another in the amount of $2000.
[39] There is one aspect of Mr. Manov’s evidence regarding the events between January 10 and 24, 2020 which I do not accept. I find that Mr. Manov was misleading in his evidence about the GPS which the men took from his BMW. In his examination in chief, he stated only that the men “took” a GPS device from his vehicle. However, in cross-examination, he acknowledged that he gave the men the password to the GPS, together with the address of his former employee, Richard Zancai. By way of an Agreed Statement of Fact, it is admitted that Mr. Manov’s dispatcher, Sandeep Bopari, received a series of calls and text messages on January 25, 2020[^9] from Mr. Manov’s cell phone, one of which read, “I told these guys to rob the guy, we put the GPS on his car, and it didn’t go good, just pay them so I can go. I’ll pay everything back please.”[^10]
[40] It is further agreed that, on January 26, 2020, Mr. Zancai located a GPS device attached to the bottom of his car.[^11]
[41] Aside from his evidence about the GPS device, I find that Mr. Manov’s description of the meetings to be credible. It is consistent with the events he described from December, in which he was threatened with a gun if he did not pay money, that the meetings took place inside the men’s vehicle, and that the men continued to mount pressure on Mr. Manov to pay the money by using intimidation and threatening conduct. I accept that these meetings and text communications between Mr. Manov and the group occurred and amount to a continued and coordinated effort by a group of men to extort money from Mr. Manov through threats of violence.
The January 24, 2020 Incident
[42] On the evening of January 24, 2020, Mr. Manov met the men at the Shell gas station. The men parked next to him in the parking lot and waved him over to enter their vehicle. Mr. Manov testified they were driving a small vehicle which was similar to the one he had seen before. Mr. Manov entered and sat behind the driver’s seat. There were three men in the vehicle – a driver, a man in the front passenger seat, and a man in the back seat. Mr. Manov testified that he could not describe the driver because he was seated behind him. The front passenger was a man with dark skin who wore dark clothing, a mask, and a covering over his head. Mr. Manov testified that this man looked like one of the men he interacted with on previous occasions. The man in the back seat had dark skin and wore a hoodie, mask, and sunglasses.
[43] The conversation was about the money and Mr. Manov assured them he was close to having all the money. The entire incident lasted three to five minutes and ended when Mr. Manov got out of their vehicle.
The Events of January 25, 2020
[44] Mr. Manov testified that he was scheduled to meet his brother, Mr. Bopari, and another person at the Shell gas station to discuss buying trucks for the company. Another man, Bhatti, who had done repairs on his trucks in the past, also attended the meeting.
[45] 15-20 minutes after arriving, Mr. Manov received a phone call from the men. They asked for his location and advised him they would come there shortly. The men arrived in the same vehicle Mr. Manov had seen before. When they arrived, Mr. Manov got into their vehicle and gave them $1000. There were four people in the vehicle – a driver, two passengers in the rear, and a front passenger. He again could not see the driver to describe him. He believed the front passenger was someone he had met on previous occasions and described him as a man with dark skin wearing a bandana and a mask. The man sitting closest to him in the rear had dark skin and wore a green-coloured jacket with fur around the hood. He could not see the man’s face because the hood dropped down to his eyeline. The other man sitting in the rear was also dark-skinned and wore dark clothing. He could not see his face.
[46] Mr. Manov testified that the men spoke anxiously to him about the money. He explained that he would sell a trailer to get them the money. Mr. Manov testified that the men then sent him into the Shell gas station to purchase cigarettes and Red Bull drinks. He exited their vehicle, made the purchase, and returned to their vehicle. When he returned, the men pointed at Bhatti and instructed Mr. Manov to tell him to come to the vehicle. Mr. Manov was unaware of any connection between the men and Bhatti, but did as he was directed. He testified that he did not tell Bhatti anything about the men, and Bhatti did not ask.
[47] According to Mr. Manov, while Bhatti spoke with the men, he left the area to go home. As he drove home, he received a phone call from Bhatti asking him where he was. He told Bhatti that he was driving home and that if he needed help, to call Sandeep. Once he arrived at his home, Mr. Manov received a text message from Bhatti directing him to meet him at a location on Kipling Avenue. Shortly thereafter, Mr. Manov drove in his silver BMW to the apartment building at 2645 Kipling Avenue. 5-10 minutes after parking his BMW in the parking lot, the same vehicle from earlier in the day pulled up in the parking lot. He locked his vehicle and went over to the other vehicle. There is no dispute that this other vehicle was a silver Dodge Journey.
[48] As he approached the passenger side of the Dodge Journey, the rear passenger side door opened and Mr. Manov saw a gun pointed at him. He was told to get in the vehicle. Once inside the Dodge Journey, the man in the rear continued to point the gun at Mr. Manov. Another passenger also pointed a gun at him. All the men were screaming at Mr. Manov to sit in the middle of the rear seats and put his hands between the seats and to keep his head down. Mr. Manov testified that the men showed him that there were bullets in the guns. He could not see the faces of any of the men.
[49] Mr. Manov testified that the men bound his wrists and legs using zip ties. One of the men in the rear seat then struck him multiple times in the head with a metal object, which he believed was a gun. Mr. Manov stated that he was dizzy, could not see, and almost lost consciousness. The men then covered his entire head with a bag. They took his phone and car keys. Mr. Manov testified he heard the men say that they would take his vehicle. He also testified that he left his wallet in his BMW and that he never got back to his vehicle once he was inside the Dodge Journey.
[50] As they drove away from the 2645 Kipling Avenue, Mr. Manov was struck again in the head with an object which he believed to be a gun. The men asked him for his debit and credit cards. He testified that they then stopped for a period of time and he believed they were withdrawing money from his account. He believed the men were withdrawing funds from his account because, at some point, someone put a phone to his mouth to speak to a bank representative to request an increase in his daily withdrawal limit.
[51] Mr. Manov testified that the men began to pressure him to find more money. He recalled that he had given his dispatcher Mr. Bopari a cheque for $17,000-$18,000 to pay some of his drivers. He stated that the men called Mr. Bopari from his phone and he spoke to Mr. Bopari and told him he needed the money to give to the men.
[52] Mr. Manov testified that the men were also sending text messages to his wife, who in turn, was texting back in Hungarian. He believed the men were attempting to lure his wife to them in the text messages. During this time, the men again hit him in the head with a hard object.
[53] A short time later, Mr. Manov heard an electric garage door open. The car backed up into the garage and he was taken from the vehicle. He heard other voices and believed he had been taken to a house. He still had a bag on his head when he was led into a room.
[54] Mr. Manov testified that the men threatened to shoot him in the leg if they did not get the money by 7:00pm and that he had until 7:00pm to live. Someone forced a gun into his mouth while the threats were made. Subsequently, someone then forced his mouth open and put a pill in his mouth. Someone then poured water into his mouth to swallow the pill. He heard one of the men say that his time was up because “Sunny” had gone to the police. He knew “Sunny” to be his dispatcher, Sandeep Bopari.
[55] Mr. Manov was then led to a different room that smelled like a sauna or steam room. He was instructed to lay down on a bench. His hands were still bound and his head was still covered. Someone pulled up Mr. Manov’s t-shirt and poured a burning liquid over his abdomen. Mr. Manov screamed out in pain. About two to three minutes later, more liquid was poured on his abdomen. A few minutes later, he was grabbed by the arms and put in a chair. He testified that he felt very sleepy and lost consciousness.
[56] The next thing Mr. Manov could recall was being taken from the trunk of a vehicle and thrown to the ground. He could not open his eyes and was shivering. He eventually looked up and saw houses. He had difficulty standing up, but was able to approach one of the houses and ring the doorbell for help.
[57] Again, there are aspects of Mr. Manov’s evidence about the events on the morning of kidnapping which are not believable. He claimed that he did not know of any prior association between Bhatti and the men. It is highly unlikely, if this was true, that Mr. Manov would have directed Bhatti to speak with the men without warning him that the men were violent, or that he was being extorted and threatened by the men. It is equally unlikely, if Bhatti did not know these men, that he would have gone with them in their vehicle, or that Mr. Manov would not have inquired into Bhatti’s well-being when he called later in the afternoon. Finally, it is not plausible that Mr. Manov would then go to the Kipling Avenue location at Bhatti’s direction, without asking him why or without having any discussion about what was going on.
[58] However, I find that these implausible aspects of Mr. Manov’s evidence do not undermine the core of his evidence about the events on the morning of January 25th. There is no dispute that Mr. Manov was kidnapped, that his debit cards were used while he was held captive, and that he suffered injuries during the kidnapping. When I consider the specifics of his evidence, his description of the events is corroborated by other evidence, including:
Video surveillance evidence showing that he went to an address on Kipling Avenue and that same surveillance showing his silver BMW being driven away from the location, followed by a Dodge Journey;
Evidence of transactions conducted with his debit cards after 2:00pm, consistent with his evidence that the men took his wallet and used his cards to withdraw, or attempt to withdraw, money;
Evidence from the bank records that several transactions were declined because the accounts reached daily withdrawal limits, consistent with his evidence that the men put him on the phone with a bank representative to request an increase to the withdrawal limit;
Photographs of his injuries which show bruising and swelling to his forehead, consistent with having been struck in the head with an object, lacerations around his wrists consistent with having been bound, and severe burns to his body, consistent with his evidence that he was burned with a hot liquid;
Evidence that Mr. Bhatti’s DNA was located on a water bottle inside the Dodge Journey, consistent with Mr. Manov’s evidence that Mr. Bhatti got into the Dodge Journey with the men;
Video evidence of him being removed from the trunk or back area of a vehicle and left in the roadway, then seeking help at a nearby home;
Evidence that his DNA was located on numerous items inside the Dodge Journey, including a plastic Shoppers Drug Mart shopping bag and a tuque, consistent with his evidence that he was transported in this vehicle; the DNA on the Shoppers Drug Mart bag also supports his evidence that the kidnappers put a bag on his head.
[59] Further, while there is no evidence to corroborate Mr. Manov’s evidence that he was struck with a firearm and that the men pointed a firearm at him during the kidnapping, in the context of all of the evidence and my finding that Mr. Manov’s evidence is generally credible and consistent as to the details of the force used against him, I accept his evidence that he was threatened with firearms and hit with firearms while he was being confined. His evidence in this regard is consistent with what I have found to be an escalating degree of violence employed by an increasingly anxious group of men to get Mr. Manov to comply.
[60] I also accept his evidence that he was forced to swallow a pill which caused him to feel drowsy and pass out. I find that, as a final stage of the kidnapping, the men drugged Mr. Manov before transporting him in the trunk of a vehicle and dumping him in the roadway. He was not challenged on this evidence in cross-examination and it is consistent with the planned and coordinated approach taken by the men. It is also consistent with the way Mr. Manov appeared once he was taken from the trunk of the vehicle, when he appeared disoriented and unsteady on his feet.
Conclusion – This Was a Coordinated Plan
[61] I find, based on the totality of Mr. Manov’s evidence, that this was a targeted extortion and kidnapping, executed through a coordinated and persistent pressure campaign involving increasingly violent tactics. I find that the men involved worked together with the same goal, to get money from Mr. Manov through actual and threatened violence.
[62] There are a number of features in the evidence which support this conclusion, including the following:
multiple men attended all the meetings;
the actual kidnapping took place over a short period of time, only a few minutes, with the men moving Mr. Manov from his vehicle to their rented Dodge Journey, stealing Mr. Manov’s vehicle, then leaving the area in tandem;
the men used increasingly violent threats while armed with firearms, including threatening violence to Mr. Manov and his family; the threats escalated to actual violence on the day of the kidnapping, including using firearms more overtly (i.e., placing the barrel into Mr. Manov’s mouth and striking him in the head with firearms multiple times);
as discussed in greater detail below, the men used Mr. Manov’s debit cards at several TD ATMs and two Cash Money stores; Mr. Manov’s debit card was first used within minutes of his kidnapping, indicative of a plan to immediately attempt to obtain money from Mr. Manov; the repeated attempts thereafter to use his debit cards illustrates a concerted plan to extract as much money as possible from Mr. Manov;
they had a location to hold Mr. Manov captive;
they took steps to ensure Mr. Manov was unable to identify them, the vehicle, or any locations, keeping their faces covered, a bag on Mr. Manov’s head, his arms and legs bound, drugging him, and later transporting him in the trunk of a vehicle and abandoning him in a random location;
multiple men were involved in the kidnapping and the events which followed the kidnapping.
[63] Against the backdrop of these factual findings, I turn now to assess the identification evidence.
ii. Analysis of the Identification Evidence
[64] There is no direct evidence identifying Mr. Owusu-Boamah as one of the perpetrators of the kidnapping or the events which followed the kidnapping. Throughout his testimony, Mr. Manov maintained that he did not know the identity of any of the perpetrators.
[65] By an Agreed Statement of Fact filed on the trial[^12], it is agreed that on February 24, 2020, Mr. Manov attended Toronto Police Services 23 Division and viewed four phone line-ups of 12 photos each. He did not recognize anyone in any of the 48 photographs, for any reason. It is also agreed that photos of Mr. Owusu-Boamah and another man, Kadeem Richards, were among the photos shown to Mr. Manov in the photo line-ups.[^13]
[66] As such, the Crown’s case for identification rests entirely on circumstantial evidence.
The Man in the Distinctive Nike Tracksuit Participated in the Kidnapping
[67] Mr. Lockhart submits that the video surveillance from the kidnapping, the banks, and the Cash Money store located at 2363 Finch Avenue West reveal that there is one perpetrator who is dressed in a distinctive Nike Air tracksuit who is involved in all stages of the incident.
[68] Based on my review of all of the video surveillance footage, I agree that there is one man who is dressed distinctively from any other man captured on the surveillance. He is wearing a dark-coloured Nike Air tracksuit with two white stripes down the side of the legs, a white stripe down the inside of the arms of the jacket, and a small white emblem on the left chest, and white script on the back of the jacket.
[69] The person in the Nike Air tracksuit is seen for the first time in the video surveillance from 2645 Kipling Avenue at 2:06pm entering the passenger side of Mr. Manov’s BMW. Approximately two minutes later, this person is captured on the surveillance video, now entering the silver Dodge Journey.
[70] I accept that the video surveillance establishes that a man dressed in a dark Nike Air tracksuit was inside Mr. Manov’s vehicle, at the beginning of the kidnapping, and was also inside the Dodge Journey, as the group departed from the scene with Mr. Manov held captive. I accept that the man dressed in a Nike Air tracksuit was present and participated in the kidnapping.
The Man in the Distinctive Nike Air Tracksuit Conducted Transactions Using Mr. Manov’s Debit Card(s) in the Period When Mr. Manov was Held Captive
[71] As noted earlier, Mr. Manov’s debit cards were used at TD ATM machines and at Cash Money locations during the time that he was held captive.
[72] The Crown alleges that the man in the Nike Air tracksuit was involved in some, but not all, of the transactions using Mr. Manov’s debit cards.
[73] The first of the transactions occurred within an hour of Mr. Manov’s kidnapping. At 2:53pm, a man in dark clothing (not the distinctive Nike Air tracksuit) with the hood up and wearing a white mask exited Mr. Manov’s silver BMW. Surveillance video from a TD Bank located at 2574 Finch Avenue West captured the vehicle as it was parked in front of the bank branch.[^14] The man entered the ATM vestibule and conducted transactions on the ATM machine. The bank records establish that four transactions were conducted on Mr. Manov’s business account, with one successful withdrawal of CAN$1200.
[74] Thereafter, at 4:28pm, Mr. Manov’s business debit card was used to conduct a foreign currency exchange at a Cash Money store located at 4080 Highway 7. A purchase of US$1000 was made at a cost of CAD$1343.08.[^15] There is no surveillance video from the Cash Money store at 4080 Highway 7 but, as will be discussed below, it is the Crown’s theory that this transaction was conducted by the man in the distinctive Nike Air tracksuit.
[75] The next transaction occurred at 5:10pm at a TD Bank located at 2574 Finch Avenue West. Video surveillance from the bank captured a man in dark clothing with a hood enter the bank. The banking records establish that at this time, this man used an ATM to withdraw CAD$2500 from Mr. Manov’s personal account.
[76] Shortly thereafter at 5:23pm, video surveillance from the Cash Money store located at 2363 Finch Avenue West captured the man in the distinctive Nike Air tracksuit enter the store. I find that this is the same man captured on the surveillance video during the kidnapping in the parking lot of 2645 Kipling Avenue. The man is captured as he entered the Cash Money store and as he exited. The tracksuit appears to be identical to one worn by the man involved in the kidnapping, with identical stripes on the arms and legs and white “Nike Air” script on the back.
[77] Bank records and Cash Money business records establish that a foreign currency exchange was completed at 5:23pm using a debit card ending in the same four digits as Mr. Manov’s personal debit card. A purchase of US$1200 was made at a cost of CAD$1611.26.[^16] The surveillance captured the man in the distinctive Nike Air tracksuit approach the counter and speak with the teller for an extended time before leaving. The interaction appeared to be friendly and the man can be seen smiling as he walks away from the counter. There is no other person present at the relevant time and I find that the man in the distinctive Nike Air tracksuit completed the foreign currency exchange noted in the records.
[78] There is no evidence of anything that happened between 5:23pm and 12:44am. At 12:45am on January 26, 2020, the man in the distinctive Nike Air tracksuit is again captured on surveillance attempting to conduct transactions using Mr. Manov’s debit card linked to his personal account at a TD Bank located at 2390 Keele Street. He is seen in surveillance with a man dressed in black. Each appears to be conducting transactions at adjacent ATM machines. It appears from the banking records that several withdrawals were attempted, without success. The man in the distinctive Nike Air tracksuit is captured on surveillance as he exited the bank. The same white stripes on the legs of his pants and the “Nike Air” script on the back of his jacket are clearly visible. I find the man in the Nike Air tracksuit to be the same man who conducted the transaction at the Cash Money store at 5:23pm and the same man involved in the kidnapping at 2645 Kipling Avenue.
[79] Finally, at 3:01am, TD bank records indicate that a transaction, listed as an “inquiry”, was conducted using Mr. Manov’s debit card linked to his personal account at the TD bank located at 2933 Major Mackenzie Drive in Vaughn. Video surveillance from 2933 Major Mackenzie Drive captured the man in the distinctive Nike Air tracksuit accessing Mr. Manov’s account from the ATM. I find this to be the same man as seen in earlier surveillance from 2645 Kipling Avenue, the Cash Money store at 2363 Finch Avenue West, and the TD bank at 2390 Keele Street.
The Transactions Conducted at the Two Cash Money Locations were Conducted Using an Account in the Name of Mr. Owusu-Boamah
[80] There is undisputed evidence that foreign currency exchanges conducted at both Cash Money locations using Mr. Manov’s debit cards on January 25, 2020 were done by accessing an account in the name of Marc Owusu-Boamah. There is no dispute that this account belongs to Mr. Owusu-Boamah.
[81] Jessica Soares, a compliance monitoring specialist for Cash Money testified as to the procedure for opening an account with Cash Money. She confirmed that an account file was created for Marc Owusu-Boamah on July 25, 2015. Mr. Owusu-Boamah’s account profile included his name, date of birth, addresses, home and work phone numbers, health card number, social insurance number, and information about his employer and his net income. A copy of Mr. Owusu-Boamah’s passport was also scanned into the file on July 28, 2015, together with a photocopy of his Social Insurance card. The file also contained a picture of Mr. Owusu-Boamah, taken at or around the time the account was opened[^17].
[82] The mere fact that the transactions were conducted using Mr. Owusu-Boamah’s account is not proof that Mr. Owusu-Boamah is the person who presented himself at the counter of the Cash Money locations to conduct the transactions. As Mr. Stastny points out, both tellers who conducted the transactions (Sargena Odisho from the 4080 Highway 7 location and Tavia Gordon from the 2363 Finch Avenue West location) were called as witnesses at the trial and neither could recall the transactions or provide any evidence as to the identity of the person who presented at the counter.
[83] He further argues that the practice for confirming a customer’s identification described by Ms. Odisho and Ms. Gordon leaves room for the possibility that someone other than Mr. Owusu-Boamah requested the transactions using Mr. Owusu-Boamah’s account without his knowledge or consent.
[84] I accept Mr. Stastny’s point that neither Ms. Odisho nor Ms. Gordon had an independent recollection of the transaction or the customer who requested the transactions at their respective locations. While they confirmed that the records show that the transactions were done using an account in the name of Mr. Owusu-Boamah, neither could offer any evidence about the transactions beyond what is captured in the records and in the video surveillance from the store located at 2363 Finch Avenue West and neither could offer any testimony as to what the person who came to the counter looked like.
[85] However, in my view, their evidence about the process of confirming a client’s identity offers compelling circumstantial evidence that it was Mr. Owusu-Boamah who presented himself at both Cash Money locations to conduct the foreign currency exchanges.
[86] Ms. Odisho, who was employed as an assistant manager at the Cash Money store at 4080 Highway 7 in Woodbridge, conducted the foreign currency exchange at 4:28pm in the amount of CAD$1343.08 (US$1000).
[87] She testified that, as a standard practice, when a customer requests a service, she first requests a phone number from the customer to retrieve the account file. She then confirms information in the file such as a name or other identifying information, such as the photo on file. She had no recollection of what identifying information she requested for the transaction on January 25th at 4:22pm.
[88] If a foreign currency exchange exceeds a value of CAD$3000, the customer must produce identification and answer certain identification questions. For foreign currency exchanges below a value of CAD$3000, a customer may verbally identify themselves by name or phone number.
[89] She confirmed that if a customer provides a phone number which corresponds to a known account, but gives a name that does not match the account, she would request identification from the customer and would not complete the transaction until she was satisfied of the customer’s identity. On cross-examination, she accepted that, for a transaction such as the one she completed at 4:22pm, if the phone number provided was linked to an account and the customer gave the name listed on the account, she would not have taken further steps to confirm the customer’s identification, as the transaction amount was under CAD$3000.
[90] Ms. Gordon, who was employed at the Cash Money location at 2363 Finch Avenue West, conducted the foreign currency exchange at 5:23pm in the amount of CAD$1611.26 (US$1200). Ms. Gordon followed a very similar procedure to that described by Ms. Odisho. She testified that she first asks the customer if they have a Cash Money account and then requests a phone number to call up the account. If no file comes up with the phone number, she requests a name to search. Once an account is retrieved by phone number or name, she then looks at the photo on file or asks for more information such confirmation of an address on file. She could not recall what information she requested or used to confirm the identity of the customer in this case.
[91] Ms. Gordon was shown a still photo taken from surveillance video from the Cash Money store. It was suggested to Ms. Gordon in cross-examination that the man conducting the transaction was wearing sunglasses and a hood. She testified that she could not say whether the man was wearing sunglasses for the entire transaction, but accepted that he appeared to be wearing sunglasses on his departure from the store. She also testified that she would typically ask a customer to remove their sunglasses so that she could see their face, but accepted that she had no recollection of doing so during this transaction and that there is nothing in the video surveillance to establish that the man took off his sunglasses.
[92] Ms. Soares, the compliance officer for Cash Money, also testified to the standard procedure expected for transactions at Cash Money stores.
[93] She testified that the standard practice for clerks conducting transactions is to first ask for a phone number to call up an account. To confirm that the account belongs to the customer, the clerk may check the photo on file, or ask for other information contained in the file, such as a name, date of birth, or an address, to confirm that the customer is the account holder. She accepted that what specific steps are followed to confirm a customer’s identity is at the discretion of the individual clerk.
[94] For foreign currency exchanges under CAD$1000, the company does not require the customer to show identification or create an account. If the foreign currency exchange is over CAD$1000, the customer is required to have an account. A teller may or may not ask for identification to confirm that the person at the counter is the account holder.
[95] On cross-examination, she accepted that the picture on file for Mr. Owusu-Boamah, taken in 2015 when he was 19 years old, would not have provided a strong point of comparison for confirming the customer’s identity in 2020. However, she indicated that the photo is not the only piece of confirming information a teller could use to confirm the identity of the customer.
[96] In my view, while it is fair to say that the practices and procedures used to confirm the identity of customers, to some extent, gives individual clerks some discretion as to what information to request, I accept the evidence that there are procedures in place to confirm the identity of a customer. While there were some minor variations in approach between Ms. Odisho and Ms. Gordon, their testimony was generally consistent. A transaction begins with asking a customer for their phone number to call up their account and then, at least one more piece of confirming information is requested, whether it is a name, date of birth, address, or a comparison with the photo on file. Both Ms. Odisho and Mr. Gordon testified that if information provided does not match what is in the file, they would ask for further confirming information before completing the transaction.
[97] I find that it can be inferred that the man in the distinctive Nike Air tracksuit who approached the counter at the Cash Money location at 2363 Finch Avenue West and requested the foreign currency exchange from Ms. Gordon provided either his phone number or his name, and that the information provided matched what was in the account file, as evidenced by the fact that the transaction was completed. If additional steps were taken to confirm that he was the person named in the account, Mr. Owusu-Boamah, those additional steps must have only served to further confirm his identity, otherwise the transaction would not have been completed.
[98] I accept Mr. Stastny’s submission that the photo might not have been a helpful comparator. It does not follow however, that the clerks did not or could not have confirmed the customer’s identity using other confirming information. If anything, a photo which did not “match” the appearance of the customer at the counter would have led to other inquiries to confirm the customer’s identity.
[99] Mr. Stastny argues that because the man would not have had to produce identification to conduct the transaction (because the transaction was below the threshold value requiring identification) someone other than Mr. Owusu-Boamah could have given his name and phone number to complete the transaction without.
[100] He points, in particular, to the fact that there is an association between Mr. Owusu-Boamah and Kadeem Richards, whose fingerprints and DNA were located inside the Dodge Journey and on items inside the Dodge Journey.[^18] In 2015, Mr. Owusu-Boamah and Mr. Richards were seen together at a store and later, found together at an apartment during the execution of a search warrant.[^19] In 2018, they were located together, with two other men, in an apartment which was the subject of a search warrant.[^20]
[101] There is evidence to suggest that Mr. Richards was involved in the kidnapping, or at least, was present in the Dodge Journey on January 25 and 26, 2020. Following the kidnapping, the police tracked the Dodge Journey to a car rental service[^21] and seized the vehicle to examine it for fingerprints. It is agreed that one of the clusters of fingerprints on the exterior driver’s side door of the Dodge Journey belonged to Mr. Richards. Mr. Richards’ DNA was also identified as one of four DNA contributors on the outside of a tuque located in the Dodge Journey. Mr. Manov’s DNA was also located on the exterior and interior of the tuque, as well as on a plastic shopping bag located inside the Dodge Journey.[^22]
[102] Mr. Stastny argues that there is a plausible inference arising from the evidence that Kadeem Richards, or someone else involved in the incident, could have used Mr. Owusu-Boamah’s Cash Money account to request the foreign currency exchanges.
[103] I do not agree. It is speculative, in my view, to suggest that Mr. Richards (or anyone else involved in the events) had the information necessary to complete the transactions on Mr. Owusu-Boamah’s Cash Money account. There is no basis to suggest that Mr. Richards or another person (1) knew Mr. Owusu-Boamah had an account at Cash Money; (2) knew his name as listed in the file; (3) knew his phone numbers; and, (4) knew that his phone number(s) were associated to his Cash Money account and would give them access to the account.
[104] I also agree with Mr. Lockhart’s submission that the only logical inference to be drawn is that the same person conducted the transaction at the Cash Money store at 4080 Highway 7. While there is no direct evidence of who presented themselves at the counter for this transaction, I find that the only reasonable inference, based on the evidence, is that it was Mr. Owusu-Boamah who conducted the transactions on his account, by providing his identifying information to complete the transaction. In light of my findings about the identification process, which I find was essentially the same for the two Cash Money locations, there is no reasonable basis to conclude that someone else conducted this transaction at the Cash Money store at 4080 Highway 7.
A Comparison of Known Images of Mr. Owusu-Boamah and Still Images taken from Video Surveillance Provides Some Evidence to be Considered on the Issue of Identification
[105] I find that the video surveillance from the TD ATM at 2390 Keele Street and the video surveillance from the Cash Money store at 2363 Finch Avenue West, when compared with known photographs and video recordings of Mr. Owusu-Boamah, provide additional evidence which supports a conclusion that Mr. Owusu-Boamah is the man in the distinctive Nike Air tracksuit who participated in the kidnapping and conducted the Cash Money transactions.
[106] Mr. Lockhart filed several arrest photos and booking videos of Mr. Owusu-Boamah, taken at times proximate to the events in question. The evidence filed included:
A photo of Mr. Owusu-Boamah taken by Peel Regional Police Service on March 31, 2020[^23];
A booking video of Mr. Owusu-Boamah taken by the Niagara Regional Police Service on April 7, 2020[^24];
A booking video of Mr. Owusu-Boamah taken by the Toronto Police Service on May 4, 2020[^25];
A photo of Mr. Owusu-Boamah taken by Toronto Police Service on July 15, 2020[^26];
[107] Mr. Lockhart invites me to compare these known images of Mr. Owusu-Boamah to stills taken from surveillance from the TD ATM at 2390 Keele Street and surveillance from the Cash Money store at 2363 Finch Avenue West, both of which offer a view of the face of the man in the distinctive Nike Air tracksuit. He submits that I can conduct my own review of the videos and photos and assess the similarities, in accordance with R. v. Nikolovski 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 (S.C.C.). Mr. Lockhart does not suggest that the videos and photos, on their own, establish Mr. Owusu-Boamah’s identity beyond a reasonable doubt. I agree that the stills taken from the TD Bank and the Cash Money surveillance videos are not of sufficiently good quality to allow for a positive identification on their own: R. v. Clarke, 2012 ONSC 1485; 2012 O.J. No. 1120 (Ont. S.C.), at para. 55.
[108] Rather, Mr. Lockhart argues that this evidence, on a continuum (from “valueless” to “does not exclude”, to “assists” to “Nikolovski”) goes beyond a standard of “does not exclude” and rises to the level of “assisting” the court on the issue of identity, in light of the distinctive features which can be discerned from the still images and compared to known images of Mr. Owusu-Boamah.
[109] Mr. Stastny accepts that it is open to me to consider the images and conduct my own comparison of the images to the known images of Mr. Owusu-Boamah. He submits however that the stills taken from the TD Bank and Cash Money surveillance have significant limitations and as such, a comparison with known images of Mr. Owusu-Boamah can go no further than to not exclude him as the man in the distinctive Nike Air tracksuit.
[110] The images taken from the surveillance have some limitations. The surveillance images from the TD Bank at 2390 Keele Street are grainy and there is overhead lighting which casts a shadow over the man’s face, making it difficult to see his full face clearly. He is wearing a hood over his head and is possibly wearing sunglasses on his face.
[111] However, I find that a number of distinct features can nevertheless be discerned from the still images taken from the surveillance. First, the general appearance of the man in the Nike Air tracksuit is consistent with the appearance of Mr. Owusu-Boamah. He is a black man, of a darker complexion, notably darker than the man beside him using the other ATM machine, whose hand is visible.
[112] More significantly, the outline of the man’s nose and mouth shape are visible, particularly in the image taken from timestamp 12:47:45am. The man’s nose is broad and his mouth is round shaped with fuller lips on the top and bottom. He has light facial hair above his upper lip.
[113] The images taken from the Cash Money surveillance have better resolution than the images from the TD ATM. The man in the distinctive Nike Air tracksuit is wearing a hood over his head and sunglasses. However, the distinct shape of his nose and mouth are again visible.
[114] When compared with the images of Mr. Owusu-Boamah taken by Peel Regional Police in March of 2020 and Niagara Regional Police in April of 2020, Mr. Owusu-Boamah has a similarly distinct broad nose and a full, round mouth with facial hair between his nose and upper lip. His features in the Peel Regional Police and Niagara Regional Police images bear a strong resemblance to the nose, mouth shape, and skin colour of the man in the Nike Air tracksuit in the surveillance from the TD ATM and from the Cash Money store. In my view, his face looks to be approximately the same shape across all these images and is not noticeably “chubbier” in the police photos, as suggested by Mr. Stastny.
[115] The image from the Toronto Police Service taken in May of 2020 is less helpful as a point of comparison because Mr. Owusu-Boamah’s head is tilted downward in one of the photos, casting a shadow over his mouth area. The photo appears to have been taken from a greater distance, making it more difficult to see the shape of his nose. A second photo, taken on a slight right profile, allows for a better view of Mr. Owusu-Boamah’s nose and mouth, but again, it is at an angle taken from a greater distance than the police images from the Peel Regional Police and the Niagara Regional Police.
[116] I conclude that, while there are some limitations in the surveillance stills, there are also distinctive features which can be discerned and which assist me on the issue of identification. The resemblance between the man in the distinctive Nike Air tracksuit from the surveillance stills and Mr. Owusu-Boamah can be considered, together with other evidence of identification, in determining whether the Crown has proved identification beyond a reasonable doubt: see R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264 at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.); R. v. John, 2010 ONSC 6085, [2010] O.J. No. 4738 at para. 15 (S.C.J.).
The Fingerprint Evidence
[117] Constable Kyle Wollery testified that on February 14, 2020, he was advised that Mr. Manov’s BMW had been located in a Tim Horton’s parking lot in Brampton. The vehicle was transported to a police division where an inventory search was conducted. Constable Wollery catalogued all the items located inside the vehicle. Among the items located was a Fiji brand water bottle, inside the storage compartment of the driver’s side door.
[118] Detective Constable Opresnik of the Toronto Police Forensic Identification Service was qualified as an expert in the collection, examination, and comparison of fingerprint impressions[^27] and testified to his examination of the BMW. His expert report was also filed as an exhibit on the trial, on consent.[^28]
[119] Detective Constable Opresnik photographed the vehicle[^29] and then examined the vehicle for latent fingerprint impressions. He processed the Fiji water bottle seized from the driver side door inside compartment, resulting in a fingerprint impression being developed on the middle area of the bottle.
[120] Detective Constable Opresnik compared the fingerprint impression to a known left middle finger impression belonging to Mr. Owusu-Boamah.[^30] He concluded that the fingerprint impression on the Fiji water bottle was created by the left middle finger of Mr. Owusu-Boamah.
[121] A second Forensic Identification Officer, Detective Constable Derouet (who did not testify at the trial, but who is referenced in Detective Constable Opresnik’s report), trained in friction ridge analysis, conducted an independent evaluation of the fingerprint evidence and confirmed that the fingerprint impression located on the Fiji water bottle came from Mr. Owusu-Boamah’s left middle finger.
[122] Detective Constable Opresnik also took swabs of several items from inside the BMW, including the Fiji water bottle. The Crown filed an Agreed Statement of Fact that only one person’s DNA was located on the swab from the water bottle and that the DNA from the Fiji water bottle came from Mr. Manov[^31]. Mr. Manov’s DNA was also located on a balaclava located inside the BMW. At least two other people’s DNA was located on a swab from the collar and cuffs of a leather jacket located inside the BMW, at least one of whom was man. The results were uploaded to the National DNA databank but did not return any hits. Mr. Owusu-Boamah’s DNA is included in the National DNA databank. Therefore, those unknown samples did not belong to Mr. Owusu-Boamah.[^32]
[123] The probative value of the fingerprint evidence is determined not in isolation, but when assessed in the context of the rest of the evidence. One of the factors which can impact the probative value of fingerprint evidence is whether the fingerprints are located on a moveable or immoveable object: R. v. T.G. and M.R. 2018 ONSC 5954, at paras. 88-91. In this case, Mr. Owusu-Boamah’s fingerprint was a moveable object. Moreover, Mr. Manov’s BMW was not recovered until February 19, 2020, leaving a window of time during which any number of people could have had access to the vehicle.
[124] Indeed, Officer Collins testified that on February 14, 2020, he observed a man (who was not Mr. Owusu-Boamah) initially standing near the BMW in the parking lot of the Tim Hortons, who then opened the vehicle door and sat in the driver’s seat for a short period of time before exiting the vehicle and walking into the Tim Hortons. When Officer Collins attempted to speak to the man after he exited the Tim Hortons, the man fled. What reasonable inferences flow from the presence of fingerprints may also be impacted by evidence which suggests an innocent explanation for the presence of fingerprints, such as an association to someone who may have granted access to the thing or place: T.G. and M.R., at para. 89.
[125] Mr. Stastny argues that, given that other people had access to the BMW, there are possible innocent explanations for how Mr. Owusu-Boamah’s fingerprint got on the water bottle in the BMW which also contained Mr. Manov’s DNA. He suggests that it is not speculative to suggest that Mr. Owusu-Boamah could have touched the water bottle after the kidnapping occurred, without having had any involvement in the kidnapping, because he has an association to Kadeem Richards. He further argues that there is no evidence as to when Mr. Manov’s DNA was deposited on the bottle, therefore it is possible that Mr. Owusu-Boamah touched the bottle and left a fingerprint at some point entirely divorced from the time period when Mr. Manov left his DNA on the bottle, or the time of the kidnapping.
[126] I accept that, viewed in isolation, Mr. Owusu-Boamah’s fingerprint on the water bottle would not be compelling evidence of identification. In isolation, it is possible, although speculative, that Mr. Owusu-Boamah could have touched the bottle at a time completely separate and apart from the kidnapping, given the fact that the vehicle could have been accessed by anyone with an association to the group who kidnapped Mr. Manov.
[127] However, when evaluated in the context of the whole of the evidence, the fingerprint evidence adds another piece of circumstantial evidence which supports a conclusion that Mr. Owusu-Boamah was part of the kidnapping. I will not repeat my review of the evidence: someone who has similar distinct features to Mr. Owusu-Boamah participated in the kidnapping and used Mr. Manov’s debit cards at ATM machines and at two Cash Money stores using an account in the name of Mr. Owusu-Boamah. In this context, it is logical to infer that Mr. Owusu-Boamah’s fingerprint was on a bottle with Mr. Manov’s DNA on it, inside Mr. Manov’s stolen car, because he touched the bottle during the course of the kidnapping.
[128] Any alternate, innocuous explanation for his fingerprint on the bottle, given the rest of the evidence, is highly improbable.
Conclusion
[129] The language of “improbability of coincidence” is most often used in reference to similar act evidence (R. v. Handy, 2002 SCC 56; [2002] 2 S.C.R. 908), but it can be aptly applied to the evidence in this case. Any one piece of the Crown’s identification evidence, when looked at in isolation, would not establish Mr. Owusu-Boamah’s identity as one of the perpetrators beyond a reasonable doubt. However, when looked at cumulatively and how the various pieces of identification evidence intersect, the likelihood that Mr. Owusu-Boamah is linked to the crimes by mere coincidence is nil.
[130] One would have to disregard the coordinated and planned approach of the men to execute a violent kidnapping and extortion with one person linked to all parts of the plan – the man in the distinctive Nike Air tracksuit who was present in both the BMW and the Dodge Journey during the kidnapping and who used Mr. Manov’s debit cards at TD Bank ATM machines throughout the night and at two Cash Money stores.
[131] One would have to discount the resemblance between Mr. Owusu-Boamah and the still photos taken from surveillance from the TD Bank and the Cash Money store of the man in the distinctive Nike Air tracksuit using Mr. Manov’s debit cards.
[132] One would have to accept that someone other than Mr. Owusu-Boamah would twice be able to use his Cash Money account to negotiate foreign currency exchanges using Mr. Manov’s debit cards, providing correct and sufficient information to two different clerks to identify himself falsely as Mr. Owusu-Boamah.
[133] One would have to accept that there is an innocent explanation for why Mr. Owusu-Boamah left his fingerprint on a water bottle that also contained the kidnapped man’s DNA and which was found inside the kidnapped man’s stolen vehicle.
[134] In my view, the only reasonable inference to be drawn from the evidence, when viewed in its totality, is that Mr. Owusu-Boamah participated, as a co-principal or aider under s. 21(1)(a) or (b) of the Code, in kidnapping, using a firearm in committing the kidnapping, defrauding, and extorting money from Mr. Manov by using his debit cards to withdraw money under threat of violence. I do not find that the evidence gives rise to other inferences inconsistent with guilt.
[135] Given my findings that Mr. Owusu-Boamah played a central role in all parts of the kidnapping, it can be reasonably inferred that he was also involved, as a principal or as an aider, in administering a noxious substance to Mr. Manov and in committing an aggravated assault on Mr. Manov, in furtherance of the violent kidnapping and extortion. It can be inferred that he, individually or collectively with others, was responsible for drugging and torturing Mr. Manov while he was confined to the residence, as part of an ongoing campaign of violence and confinement in which he was a central figure throughout. There is no evidence of who took what actions during the drugging and torture. However, I find that the only reasonable inference arising from the evidence is that Mr. Owusu-Boamah was present and played an active role in the commission of these offences, as a co-principal or as an aider, given the prominent role he played throughout the kidnapping in coordinating and executing the plan: R. v. Mena, 1987 CanLII 2868 (ON CA), [1987] O.J. No. 392 (Ont. C.A.), 34 C.C.C. (3d) 304, at p. 309; R. v. J.F.D., 2005 BCCA 202, [2005] B.C.J. No. 746 (BCCA), at paras. 8-14; R. v. Ball, 2011 BCCA 11, [2011] B.C. J. No. 39 (BCCA), at paras. 25-28; R. v. Cox, 2019 BCSC 499, [2019] B.C.J. No. 5454 (BCSC), at paras. 555-558.[^33]
[136] In the alternative, even if Mr. Owusu-Boamah was not physically present or did not personally commit the offences of administering a noxious substance and aggravated assault as a principal or aider, I find that he would still be a party to the offences by common intention under s. 21(2) of the Code.[^34]
[137] Section 21(2) provides:
Where two or more persons form an intention in common to carry out an unlawful common purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[138] In R. v. Cadeddu, 2013 ONCA 729, Chief Justice Strathy, citing Justice Watt in R. v. Simon, 2010 ONCA 754, leave to appeal to the Supreme Court of Canada refused, [2010] S.C.C.A. No. 459, set out a description of how s. 21(2) of the Code applies, at para. 51:
Persons who participate in the offence actually committed, whether as a principal, an aider or an abettor, have their liability determined under s. 21(1).
Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in an unlawful enterprise may attract liability. And the second relates to the offence for which participants in an unlawful criminal enterprise may be held liable: R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 15; R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406 (Ont. C.A.), at p. 409; R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399 (Ont. C.A.), at p. 408.
The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be captured by s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose.
The offence to which s. 21(2) extends liability is not the original "unlawful purpose" to which the subsection refers. The "offence" of s. 21(2) is a different crime, one that a participant in the original "unlawful purpose" commits in carrying out that original purpose. And so it is that we sometimes say that s. 21(2) extends liability to those engaged in one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose.
Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party's participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as "agreement", "offence" and "knowledge", must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 83; R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at p. 81; R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458.
[139] Justice Rosenberg distilled the elements of liability under s. 21(2) of the Code in R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 62, as follows: (1) an agreement to participate between principal(s) and parties in a common unlawful purpose; (2) the commission of an incidental and different crime by another participant; and (3) foreseeability of the likelihood of the incidental crime being committed.
[140] The first element is established in this case. In my view, it is clear that the parties shared a common intention to affect the unlawful purpose of kidnapping and extracting money from Mr. Manov using violence or the threat of violence. As outlined above, the group used a plan of persistent meetings and pressure tactics with violent undertones, to persuade Mr. Manov to pay them. On January 25, 2020, the final stage of the campaign, the tactics escalated to overt acts of violence including a coordinated kidnapping, threats with a firearm, assaults, and the parties actually taking Mr. Manov’s money using his debit cards. Different players may have played different roles in the unlawful purpose, but I have no doubt that they were all working together, to achieve the goal.
[141] As to the second element, one or more of the participants committed the offences of administering a noxious substance and aggravated assault by burning Mr. Manov. I find that these acts were committed in the course of carrying out the common unlawful purpose and are different than the common unlawful purpose.
[142] Finally, the accused must know or ought to have known of the probable commission of the acts which constitute the incidental offences. Were the offences which ensued a probable consequence of the unlawful purpose? In my view, the answer is yes.
[143] Kidnapping, by its very nature, is a violent crime which implies that harm to the victim is probable. Given the violent nature of the kidnapping and the common intention by the parties to extract money from Mr. Manov through violent means, Mr. Owusu-Boamah, if he did not personally commit the offences of administering noxious substance and aggravated assault, knew or ought to have known that a probable consequence of the kidnapping and extortion was the commission of further violent acts against Mr. Manov.
[144] Mr. Owusu-Boamah is liable for the acts which foreseeably flowed from the kidnapping, even if he did not personally commit the acts, and even if he did not contemplate the specific violence committed.
[145] Finally, there is no dispute that Mr. Owusu-Boamah was subject to a probation order at the relevant time. He was in breach of the term of the probation order to keep the peace and be of good behaviour.
[146] I find Mr. Owusu-Boamah guilty on all counts.
R. Maxwell J.
Released: October 25, 2022
COURT FILE NO.: CR 21-50000020-0000
DATE: 20220629
REVISED: 20221025
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARC OWUSU-BOAMAH
REVISED REASONS FOR JUDGMENT
Justice R. Maxwell
Released: October 25, 2022
[^1]: Revisions to the Reasons for Judgment are reflected in footnotes 2, 33, and 34 of these revised Reasons.
[^2]: Paragraphs 1 has been revised to reflect a correction to the list of charges. The original decision omitted the charge of fraud under $5000 from the list of charges Mr. Owusu-Boamah was arraigned on and entered pleas of not guilty.
[^3]: Mr. Lockhart filed a disk of 18 video files captured from surveillance cameras at 2645 Kipling Avenue (Exhibit 1b). The parties are agreed that the start time on each of the 18 video clips is not accurate, in that it is two days, seven hours, and 54 minutes behind the actual time. They are agreed that the actual timeframe of video clips capturing the relevant activity occurred between 2:00:59pm and 2:10:30pm. The video surveillance cameras at 2645 Kipling Avenue were motion activated, recording in short bursts triggered by a motion sensor rather than recording continuously. An appendix setting out the “face time” of each of the 18 video clips and the “actual” time was attached to the Agreed Statement of Facts – Exhibit 1a.
[^4]: Trial Proceedings, Exhibits 4a and 4b
[^5]: Trial Proceedings, Exhibit 2a and 2b
[^6]: Trial Proceedings, Exhibits 3a and 3b
[^7]: Trial Proceedings, Exhibit 6
[^8]: Trial Proceedings, Exhibits 8b, 8c, 8d
[^9]: Mr. Bopari provided a videotaped statement to the police on January 25, 2020. While he was going the statement, his phone received text messages from Mr. Manov’ phone.
[^10]: Trial Proceedings, Exhibit 25
[^11]: Trial Proceedings, Exhibit 21
[^12]: Trial Proceedings, Exhibits 13a and 13b
[^13]: Trial Proceedings, Exhibit 23
[^14]: Trial Proceedings, Exhibit 7
[^15]: Trial Proceedings, Exhibit 8d
[^16]: Trial Proceedings, Exhibit 8c
[^17]: Trial Proceedings, Exhibits 8a and 8b
[^18]: Trial Proceedings, Exhibit 20
[^19]: Trial Proceedings, Exhibit 22
[^20]: Trial Proceedings, Exhibit 22
[^21]: On January 27, 2020, officers from the Toronto Police Service learned that the silver Dodge Journey had been rented from a car rental service and returned on January 26, 2020.
[^22]: Trial Proceedings, Exhibit 20
[^23]: Trial Proceedings, Exhibit 12
[^24]: Trial Proceedings, Exhibits 17a and 17b
[^25]: Trial Proceedings, Exhibit 10
[^26]: Trial Proceedings, Exhibit 26
[^27]: Trial Proceedings, Exhibit 15
[^28]: Trial Proceedings, Exhibit 16
[^29]: Trial Proceedings, Exhibit 5a
[^30]: Trial Proceedings, Exhibit 24
[^31]: Trial Proceedings, Exhibit 19
[^32]: Trial Proceedings, Exhibit 18
[^33]: In response to a request from defence counsel during sentencing submissions for clarification on whether I had made a finding that Mr. Owusu-Boamah was present in the room during the drugging and torture, paragraph 135 has been revised to add the final three sentences.
[^34]: I have addressed the alternate route of liability under s. 21(2) of the Criminal Code for completeness because it was raised during submissions. Paragraphs 136-144 should not be taken to be a finding that Mr. Owusu-Boamah was not a principal actor or aider in the drugging and torture. As I have found in paragraphs 134 and 135 of these Reasons, Mr. Owusu-Boamah is liable as a principal or aider in these offences under s. 21(1)(a) or (b) of the Criminal Code and played an active role in the commission of the offences.