COURT FILE NO.: CRIMJ(P) 1258/18
DATE: 2024 02 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
K. Holmes, for the Crown
- and -
HASSAN HASSAN
J. Reisman, for the Defence
HEARD: December 4, 5, 6, 7, 2023
REASONS FOR JUDGMENT
F. DAWSON J.
Overview
[1] Hassan Hassan is charged with extortion, simple assault and aggravated assault pursuant to ss. 346(1.1)(b), 266 and 268 of the Criminal Code. The extortion is alleged to have occurred in Mississauga between May 1 and July 10, 2017. The assault and aggravated assault are alleged to have occurred on July 10, 2017.
[2] The complainant in relation to each of the charges is Mark Overton. Mr. Overton has had schizophrenia for many years and is not able to work. During the relevant time period he lived in apartments arranged through Supportive Housing in Peel (SHP). He supported himself by panhandling while receiving Ontario Disability Support Payments (ODSP).
[3] Mr. Overton testified that two men, whom he called "N.H." and "Kareem", extorted money from him over an extended period. He said Kareem, alleged to be the accused, would come to his apartment most mornings to demand money. He said N.H. would come in the evening and do the same thing. On occasion the men would beat him. N.H. and Kareem were two of several people much younger than Mr. Overton who would regularly hang out at Mr. Overton's apartment to smoke marijuana, drink alcohol and socialize.
[4] The complainant testified that on the morning of July 10, 2017 the person he called Kareem beat him severely. Despite taking two showers to try to stop the bleeding he remained covered in blood when he went out to panhandle at the off-ramp from Highway 403 to Hurontario Street in Mississauga. Police officers who observed his condition called an ambulance. When the police interviewed him in hospital, he revealed what had been occurring. Mr. Overton was rehoused in a safe place and the police began an investigation.
The Police Investigation
[5] Det. Cst. Hemat Sharma of the Peel Regional Police (PRP) spoke to the complainant at the hospital on Monday, July 10, 2017. He also conducted a video recorded interview of the complainant at a police division later that day.
[6] When speaking to Det. Cst. Sharma, the complainant described the man he called Kareem as follows: tall Black male, wears a toque, in his 20's, skinny, 6'4", very strong with an afro hairstyle and no facial hair. I note that during his trial testimony, the complainant said Kareem also wore his hair in braids. The complainant told the officer that he expected that N.H. would come to his apartment that evening and that Kareem would come to his apartment the next morning, as they always did.
[7] Det. Cst. Sharma took no steps to watch the complainant's apartment that evening but police surveillance was arranged for the morning of Tuesday July 11, 2017. At around 8:30 a.m. the accused was seen looking over a wooden fence that partially surrounds the small patio area of the complainant's ground floor apartment. The accused was observed walking onto the patio, placing his hands beside his head and peering into the apartment through a sliding patio door.
[8] When police officers approached, the accused identified himself and provided his address and phone number. According to Det. Cst. Sharma, the accused said he knew the complainant and usually entered the building through the complainant's apartment to go to the sixth floor to smoke or buy weed. The accused said he took that route as the main door was locked and you needed a key fob to get in. The accused testified that he saw blood in the area and that he asked the police if Mark was okay. The police let the accused go on his way.
[9] The accused is Black and 6'4" to 6'5" tall, but unlike the suspect, who was described by the complainant as having no facial hair, he had more facial hair than could be grown in a few days. Det. Cst. Sharma would not agree that the accused was permitted to leave due to the facial hair discrepancy to the description given by the complainant. He said it was because it was early in the investigation.
[10] Later on July 11, 2017 the police learned that the complainant had been taken to Brampton Civic Hospital due to ongoing pain. They attended the hospital and conducted a photo lineup. It is an agreed fact that the lineup was conducted fairly. However, Det. Cst. Sharma told the complainant he had seen someone looking into the complainant's apartment that morning, adding that the man's photo may or may not be in the lineup. An officer not involved in the case then administered the photo lineup.
[11] When viewing the photo lineup the complainant recognized two photos as people he knew from the community whom he said were not involved. When he got to photo number 12 the complainant nodded his head and said he was very confident that was the assailant he called Kareem. That photograph was of the accused. However, Det. Cst. Sharma agreed it was not a current photograph. In the lineup photograph the accused had some facial hair but significantly less than he did in his post-arrest photograph.
[12] At approximately 10:05 p.m. on Wednesday, July 12, 2017 the police attended at the home where the accused lived with his parents. The accused was awakened by his parents. He was arrested. The accused testified that his parents were hysterical and that the neighbours came out to watch. The accused said he was terrified, flustered and upset because he was being arrested for something he did not do. He did not recall it, but assumed the police read him his rights. He did not request a lawyer and cooperated by voluntarily participating in a video recorded interview.
[13] After his interview the accused was released without charges. Det. Cst. Sharma conducted the interview. He said the accused was very emotional throughout the interview. As Det. Cst. Sharma put it in cross-examination, the accused was very forceful in pleading his innocence.
[14] Although the accused admitted that his interview statement was voluntary, the Crown chose not to introduce it as part of its case. Selected portions of the interview were put to the accused in cross-examination. Turning to some of the portions of the interview that the accused was cross-examined on, although the accused was a student, he advised the officer that he also worked at a metal fabrication business. At p. 13 of his interview transcript the accused was asked if he worked on Monday. That was the day the complainant was badly beaten. The accused said he worked that day from 7:00 a.m. to 3:00 p.m. In his trial testimony the accused acknowledged that was incorrect. Prior to trial counsel for the accused disclosed an alibi to the Crown, claiming that the accused was doing volunteer work throughout the day on Monday, July 10, 2017.
[15] I will deal with the alibi in more detail later. In terms of telling Det. Cst. Sharma that he was working "on Monday", the accused testified that he was very flustered and upset during the interview. He said he was confused, afraid, and not able to think clearly. During cross-examination at trial on this portion of his statement the accused pointed to the previous page of the interview transcript where the officer also asked him whether he worked "yesterday". He told the officer he had. He was asked what time he worked yesterday and responded that he went in at "eight-ish". The officer then pointed out that he and the accused were speaking at that time outside the complainant's apartment. The accused responded, "We never met yesterday." When the officer maintained that they did, the accused said they met on Tuesday, and then ended up asking what day it was.
[16] Based on the transcript and the officer's evidence concerning the accused's demeanour during the interview, there is some objective evidence to support the accused's claim that he was upset, confused, and not thinking clearly. The accused testified that he was saying anything that he could to try to convince Det. Cst. Sharma that he was being wrongfully accused.
[17] During the recorded interview it was the accused who first brought up the name Kareem. It is the Crown's position that this is highly significant and shows that the accused is lying. The Crown maintains that the accused and another defence witness, Shannel Ramballi, have invented a false narrative that there is another tall Black male who the complainant called Kareem. It is the Crown's position that the accused is Kareem.
[18] The name Kareem first came up during the accused's interview at p. 8 of the transcript. The accused was explaining that he was not the only person who went through the complainant's apartment. He started to say that there were 10 or 15 guys who did so, but then interrupted himself and said: "Sorry, do you, do you guys think I'm Kareem? Is that what this is?" In another related passage of his statement which was also used in cross-examination, the accused indicated that there was another male called Kareem who also spent time at the complainant's apartment.
[19] Det. Cst. Sharma was asked in examination-in-chief whether before the interview the name Kareem had "come up with Hassan Hassan". He responded that it had not. It is unclear to me whether this means that the accused did not raise the name Kareem prior to the interview or whether the officer himself had not mentioned that name before the interview. In cross-examination Det. Cst. Sharma said he told the accused that Mark Overton had picked the accused out of a photo lineup. He did not recall telling the accused that the complainant said the photo he picked was Kareem or mentioning the name Kareem to the accused. In his trial testimony the accused maintained that the name Kareem was brought up to him more than once prior to his video recorded interview. He said Det. Cst. Sharma mentioned Kareem either in the police car or at the police station prior to his interview. No reply evidence was called on this point after the accused testified that Det. Cst. Sharma mentioned the name Kareem prior to the interview.
[20] As previously mentioned, the accused was released without charges following his July 12, 2017 police interview.
[21] The accused was rearrested and charged on September 5, 2017. Det. Cst. Sharma testified that prior to that date he received a report that a fingerprint matching the accused had been found on a bottle of Cîroc Vodka seized from the complainant's apartment. The complainant had previously advised Det. Cst. Sharma that there was a liquor bottle near the wall in his living room that only Kareem had touched.
[22] Significantly, a swab of the mouth of the Cîroc bottle yielded a hit on the convicted offender DNA database for a person named Kadeem Forrester. Det. Cst. Sharma testified that the police took no steps to investigate Kadeem Forrester because the other evidence they had collected pointed to the accused. Consequently, there is a gap in the evidence concerning whether Kadeem Forrester is or is not someone who could fall within the parameters of the description of Kareem provided by the complainant.
The Complainant's Evidence
[23] Mark Overton was 64 years old when he testified. He was 58 or 59 when the events occurred. He testified that he has been diagnosed with schizophrenia and he also referred to having paranoia. He said he took five prescribed medications every day, but he was only able to name two of them. He said he always took his medications as prescribed.
[24] The complainant said he loved marijuana and that he smoked 10 joints a day. The complainant said marijuana relaxed him. He did not believe it affected his memory. In cross-examination he acknowledged having smoked marijuana in the morning before he began his testimony at the trial.
[25] The complainant initially denied quite strenuously that he drank alcohol. However, his evidence changed in cross-examination. He then admitted that he would drink beer with the people who came over to his apartment. He denied using cocaine, although he acknowledged having used cocaine extensively in the past.
[26] The complainant agreed that many people considerably younger than him would come over to his apartment to hang out. They gave him marijuana and smoked marijuana and drank alcohol when they were there. He said those people accessed his apartment through the sliding patio door of his ground level apartment. He said the sliding door was always unlocked because he had lost his key fob to the main entrance of the building. He also said the lock on that door was broken.
[27] The complainant first described young people coming to his previous apartment at 1555 South Parade Court, unit 109 (South Parade). He met N.H. there. N.H. would bring others to his apartment. He did not know their names but made names up for the other people who came over. He said he also met the man he called Kareem at South Parade, and that he would see Kareem with N.H. at a nearby McDonald's. He said N.H. started to extort money from him at South Parade.
[28] The complainant testified that he later moved into a ground floor apartment at 20 Ceremonial Drive. After moving in he ran into N.H. and gave N.H. his new address. He said N.H. and others began to come to his new apartment at Ceremonial Drive. He testified that N.H. and Kareem then hooked up and began to extort him together. Other young people continued to hang out at his apartment as well. He said N.H. and Kareem would beat him on occasion. He would provide them with his panhandling money and some of his ODSP benefits. He said N.H. would come for money in the evening and that Kareem would come in the morning. He also said that Kareem drank beer and would make him buy Molson Canadian beer.
[29] The complainant testified that on the morning of July 10, 2017 Kareem beat him badly. He said that he was beaten with the leg of a chair and with an electrical cord. He was also kicked in the leg. He was bleeding so badly that Kareem ordered him to take a shower. His evidence varied between the beating going on for a short time to going on for perhaps an hour and a half. He said Kareem was at his apartment from about 7:30 a.m. until about 10:00 a.m. At 10:00 a.m. the complainant left to go panhandling. He said Kareem was still in his apartment at that time.
[30] Photographs taken by the police show that the complainant had numerous cuts, bruises and abrasions. The photos also show that the complainant's apartment was in disarray and that there was considerable blood staining in and around the apartment. The police located and photographed a broken chair on the patio. There was blood on the broken off leg of the chair.
[31] The complainant made an "in-dock" identification of the accused during his testimony. He said the accused was the man he knew as Kareem. The Crown does not rely on the in-court identification but rather on the complainant's description of his assailant and his selection of the accused's photo from the photo lineup.
[32] In cross-examination the complainant denied that he knew the accused as someone called "Izzy". He held firm that the accused was Kareem and that Kareem was the person who extorted money from him in the morning and who beat him on July 10, 2017.
[33] In examination-in-chief the complainant said he thought that Kareem would take the bus to school after visiting his apartment in the morning. In cross-examination he agreed that he only testified to that effect because of what he heard about the accused at the preliminary inquiry.
The Defence Case
Evidence of the Accused
[34] As already mentioned, the accused testified and denied that he ever extorted money from or assaulted the complainant. He said that when he was in high school and later in college, he would go to the complainant's apartment to smoke marijuana, sometimes drink alcohol and to socialize. He testified that he was one of 10 children in a middle-class immigrant family, that his parents were strict and that he needed a place to go to smoke marijuana and socialize.
[35] He initially went to the complainant's apartment on South Parade. He learned of the apartment from a member of his high school basketball team who lived in the same building as the complainant. He was introduced to N.H., who also lived in that building, and soon after that he was introduced to the complainant. He said he did not focus on the fact that the complainant was older or that his apartment was dirty. He was young and considered it a cool place to go.
[36] After the complainant moved away from South Parade there was a period of about "two semesters" duration when the accused said he did not attend at the complainant's apartment. That changed after a chance encounter with N.H. at a shopping mall. N.H. told him of the complainant's new address and he began to go to the complainant's apartment on Ceremonial Drive. He testified that he was also buying marijuana from a person who lived on the sixth floor of the same apartment building. On occasion, he would go there to buy marijuana in the morning.
[37] The accused said he would give some marijuana to the complainant. Other young people would come and go from the complainant's apartment. They all smoked marijuana and some of them drank alcohol. He testified that the complainant was both smoking and drinking and was always high and/or intoxicated.
[38] The accused testified that everyone who attended at the complainant's apartment knew him as "Izzy". He said that the complainant also called him Izzy. However, he testified that the complainant tended to get names mixed up and to call him and others by different names.
[39] The accused testified that there was a man who the complainant called Kareem who attended at the complainant's apartment on some of the occasions when he was there. The accused described Kareem as a Black Caribbean in his 20's who was 6'2" to 6'3" or possibly 6'4" tall. He had long hair and his hair style varied between an afro, braids and singles. The accused thought Kareem was Caribbean because he was sure Kareem was not East African. The accused testified that he and N.H. are of Somali descent.
[40] As already mentioned, the accused said that on July 11, 2017 he went to the complainant's in order to go through his apartment to gain access to the building and buy marijuana on the sixth floor. The accused also testified in detail about how upset, scared and confused he was when he was interviewed while in police custody on July 12, 2017. In terms of his fingerprint found on the Cîroc Vodka bottle, the accused said he had probably passed the bottle between people at the apartment. He said he did not know anyone named Kadeem Forrester. He maintained throughout his testimony that the complainant must have confused him with Kareem. In his testimony he mentioned, as is confirmed in his police interview, that before he was aware that the complainant had selected his photo in a lineup, he asked the police to show the complainant his photograph, believing that the complainant would exonerate him.
[41] The accused testified that after he had spoken with the police on July 12, 2017 he realized that on July 10, 2017 he had been doing volunteer work at Eastern Canada High School. That is a private high school he had attended on a part-time basis to obtain extra credits while he was also attending a public high school. While he had graduated from high school in 2015, he said he did additional volunteer work at the private school in 2017 to improve his resume to help him gain acceptance into the fourth year of an engineering program at the community college he was attending in 2017. He was enrolled in a three-year program at that time. The accused explained that the private school was prominent in the Somali community, and that he was helping the school to move locations. He explained how he attended at the private school after he was charged to obtain a document to support his alibi.
[42] I will deal with the alibi and issues associated with it when I review the evidence of Ahmed Dawson, the current principal of Eastern Canada High School.
Shannel Ramballi
[43] Ms. Ramballi was 24 when she testified as a defence witness at trial. She grew up in North York and still lives there with her parents. She is a manager with a well-known retail clothing outlet. She has no criminal record.
[44] Ms. Ramballi testified that she had not seen the accused since 2017 when she and her girlfriend Maria used to hang out at the complainant's apartment on Ceremonial Drive in Mississauga. She said she, the complainant and everyone else who attended at the complainant's apartment knew the accused as Izzy. She would take the bus from North York to meet her friend Maria in Mississauga so they could go to the complainant's. She said they went there to smoke weed, listen to music, joke around and have a good time. They would go to there after school. She named several people she would see there on occasion. That included a man called Kareem.
[45] Ms. Ramballi described Kareem as tall, brown, with curly hair and a goatee. She said Kareem and Izzy looked like each other but that they also had differences. She said the accused had a fuller beard, while Kareem had only a goatee.
[46] Ms. Ramballi said that the complainant would smoke marijuana and drink alcohol. She could smell alcohol on his breath. She said he slurred his speech. She also testified that, "Mark always confused all of us." She said the complainant would often call her Maria and would call Maria Shannel, although Maria is Spanish and Ms. Ramballi is Black. She said that the complainant would also get confused about other things. She said he would forget prior conversations and seemed to be generally forgetful. She thought that was due to the amount of weed he smoked and his alcohol intake.
[47] Ms. Ramballi testified that she had been to the complainant's apartment 10 to 15 times between January and June of 2017 and that she had seen Izzy there five to six times. She last saw the accused in June 2017. She had never met him elsewhere. She agreed to speak to the accused's previous lawyer and did so in 2018 after the accused contacted her on Snapchat. She testified that she has had no other communication with the accused aside from a message that he had changed lawyers.
[48] Ms. Ramballi was thoroughly cross-examined by Crown counsel. I will refer to her cross-examination later in my analysis.
Ahmed Dawson
[49] Mr. Dawson, who is not related to me, teaches math and physics and since September of 2018 he has been the principal at Eastern Canada High School. The previous principal and owner of the school is Abdinur Farah. Mr. Farah is currently in Somalia.
[50] Mr. Dawson testified regarding the accused's alibi. Although it was not made an exhibit, I was advised that the accused's previous lawyer served Crown counsel with particulars of an alibi. Det. Cst. Sharma testified that he attended the school on October 29, 2020 to investigate the alibi. Mr. Dawson testified that when the police arrived he got out the records confirming the accused's volunteer work, showed the records to the police and then put them back. Mr. Dawson testified that the records in question are kept in a locked filing cabinet in the school's office and that students have no access to them.
[51] Mr. Dawson testified that two to three years prior to trial the accused attended at the school and asked for confirmation of the dates and times of volunteer hours he had put in in 2017 to assist the school, which was moving locations. Mr. Dawson understood that the accused wanted the record to assist with an application for an educational program, not to establish an alibi in a court proceeding.
[52] Mr. Dawson testified that later in the day on which the accused made the request he retrieved the records from the locked cabinet. He said when he looked at the original record it "did not look good" and that he made a new copy of the record. He did so in handwriting by filling in a blank form titled "Community Involvement Activity Notification and Completion Form". He said he transferred the information accurately onto the blank form and signed it. Mr. Dawson then produced the original that he copied from, which became Exhibit 5, and a document he said was the copy he made, which became Exhibit 6. Both came from the school's records, which Mr. Dawson had not brought with him to court.
[53] The evidence is unclear as to exactly what was given to the accused, but initially I was under the impression that Mr. Dawson provided the accused with a photocopy of Exhibit 6. However, in cross-examination Crown counsel presented Mr. Dawson with yet another copy of the same form which contained the same information, but which has obvious differences from both Exhibits 5 and 6. That third version of the form became Exhibit 7. I was advised that form was provided to the Crown by one of the accused's defence counsel.
[54] Each of these exhibits contains information to the effect that on July 8, 9, and 10, 2017 the accused was engaged for many hours doing volunteer work at the school. The times are specified on the forms. On July 10, 2017 these exhibits indicate that the accused was engaged for 15 hours from "8-11 p.m.". The volunteer time amounts to 40 hours in total over three days.
[55] While the information in the three exhibits is the same, there are several differences in appearance between the documents. Those differences were put to Mr. Dawson in cross-examination. They include things such as the location on the form of a stamp, and the location of some dates and signatures on the forms. Mr. Dawson was at a loss to explain these differences. It was apparent that he was having difficulty remembering exactly what occurred. He was also not the principal when the first record, Exhibit 5, was prepared or when the accused claims he was doing the volunteer work, although he was at the school at the time and has some recollection of the accused.
[56] Mr. Dawson was firm, however, in stating that it would not have been possible for the accused to have accessed the secure records. While the forms indicate that the volunteer work the accused was doing included "data entry" and "arranging student's folders into cabinets", Mr. Dawson explained that work related to files containing work done by students which is kept for one year. He was firm in saying that the accused would have no way to access the records in question.
[57] After his testimony in the courtroom was completed, Mr. Dawson returned to the school to examine the records which he had not brought with him to court. He then provided further testimony by video link confirming that there was no other relevant information in the school's records.
[58] In re-examination, Mr. Dawson said it was possible that he had made more than one handwritten copy from the original, Exhibit 5, but he had no clear recollection one way or the other.
[59] While Crown counsel submitted that I should place little weight on Exhibits 5, 6, or 7 in terms of their support for the accused's alibi, Crown counsel agreed that the documents were admissible as records made in the usual and ordinary course of business, pursuant to s. 30 of the Canada Evidence Act, R.S.C. 1985, Chap. C-5.
Analysis
[60] This is essentially an identification case where the credibility and reliability of the witnesses is central to determining whether the Crown has discharged its onus to prove the guilt of the accused beyond a reasonable doubt. Crown counsel submits that in the circumstances here the issue can be framed as whether it has been established beyond a reasonable doubt that the accused is Kareem. Defence counsel agrees with this characterization of the issue. Both sides accept that the complainant was assaulted and extorted by Kareem but have very different takes on whether the accused is that person.
[61] At the outset of her submissions Crown counsel confirmed that she is not asking the court to place any weight on the complainant's in-court identification of the accused. That concession is appropriate having regard to the fact that the complainant had previously selected a photograph of the accused and had seen him at the preliminary inquiry. The focus is on the description of the perpetrator provided by the complainant and on the reliability of his selection of the accused's photo during the photo lineup, evaluated in the context of the evidence as a whole. Crown counsel also emphasizes the accused's appearance at the complainant's apartment on the morning of July 11, 2017.
[62] The dangers inherent in eyewitness identification cases are well known. As Doherty J.A. said in R. v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463, [1990] O.J. No. 2063 (C.A.), at para. 5: "The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law." I have kept those well-known dangers in mind.
[63] That said, this is not a case involving a fleeting glance or a relatively short observation of a perpetrator made under stressful circumstances. In this case, the complainant knew the perpetrator, who had been to his residence many times. The criminal misconduct in question also occurred over an extended period. While this does not eliminate the potential for error entirely, it undoubtedly reduces it significantly.
[64] I would add, however, that the complainant is Caucasian and the accused is Black. It is well known that there is a greater potential for honestly mistaken identification in cross-racial circumstances. This is also a factor I bear in mind.
[65] I also keep in mind that in evaluating the Crown's case it is the persuasive effect of the evidence as a whole which is important. I must take care not to reach my decision based only on a piecemeal assessment of the evidence: R. v. Button, 2019 ONCA 1024. However, during my reasons I will be required to focus on the evidence of the individual witnesses at times.
[66] As this is a case in which the accused testified and called evidence, in reaching my decision I have applied the principles described in R. v. W.(D.), 1 S.C.R. 742, at p. 757, as elaborated upon and explained in cases such as R. v. D.(B.), 2011 ONCA 51, at para. 114; R. v. Smits, 2012 ONCA 524, at para. 37; and R. v. Brown, 2018 ONCA 481, at paras. 67-69.
[67] Turning first to the complainant's evidence, I observe that Mr. Overton's schizophrenia is not readily apparent to a lay observer. His mental health challenges were not obvious when he testified. Neither the accused nor Ms. Ramballi indicated that they saw signs of mental illness in the complainant. I would not diminish the complainant's evidence in any way simply because he has a mental illness.
[68] That said, in this case there is evidence of very heavy marijuana use by the complainant at the relevant time. I also accept that the complainant was consuming alcohol on a regular basis at the relevant time. These are factors which, on their own, raise concerns about the reliability of a witness's perceptions and ability to recall. Substance abuse in the presence of schizophrenia and the concurrent use of prescribed medications does nothing to reduce those concerns.
[69] I also conclude that the complainant was not candid in examination-in-chief or during the early stages of his cross-examination when he said that he did not consume alcohol during the relevant time. He modified his testimony later in cross-examination to acknowledge drinking beer. Both the accused and Ms. Ramballi's evidence is that the complainant was drinking more than he was prepared to admit. Particularly in view of the complainant's inconsistency on this point, I accept the evidence of the accused and Ms. Ramballi that the complainant consumed significant quantities of alcohol on a regular basis.
[70] This finding does not diminish what the complainant said about the offences, but it raises a concern in my mind about relying on his level of certainty when evaluating his evidence regarding the selection of the accused's photograph as the perpetrator. I would add that the complainant acknowledged in cross-examination that his testimony that his assailant was heading to school on the morning of July 10, 2017 was based on what he learned at the preliminary inquiry. That at least shows that the complainant is subject to suggestion. To that, I would add that Det. Cst. Sharma told the complainant just before the lineup was administered that he had seen a man peering into the complainant's apartment on the morning of July 11, 2017. While he also told the complainant that the person's photo may or may not be in the lineup, in the circumstances I am of the view that this may have subtly increased the potential that the complainant would select as the perpetrator the face of the only Black male whom he recognized as someone who attended his apartment to smoke marijuana. The fact that the accused recognized two other people in the lineup from other contexts does little to diminish this concern.
[71] Significantly, during his video interview shortly after the assault, the complainant told Det. Cst. Sharma that the man who extorted him and assaulted him, Kareem, had no facial hair. Det. Cst. Sharma acknowledged in his evidence that the accused did have a significant amount of facial hair on July 11, 2017. The photo of the accused that was used in the photo lineup was an older photo of the accused. While that photo shows some facial hair it is not a prominent feature of the accused's appearance as shown by that photograph.
[72] These concerns about the complainant's evidence highlight the importance of examining the other evidence in this case. In this regard, the credibility of the accused's evidence looms large.
[73] The accused, of course, has testified that he is not the perpetrator. He says that there was another tall, slim, Black male in his 20's, known as Kareem, who attended on a regular basis at the complainant's apartment. That is backed up by Shannel Ramballi, who confirms the accused's evidence that he was known as Izzy, that the complainant tended to get people mixed up, and that Kareem bore some similarities in appearance to the accused.
[74] During closing submissions Crown counsel submitted that the accused and Ms. Ramballi had conspired to mislead the court by fabricating the existence of another tall Black male who was known as Kareem. Crown counsel submits I should reject Ms. Ramballi's evidence. However, Crown counsel also acknowledged that Ms. Ramballi's evidence was problematic for the Crown and conceded that I should acquit the accused if I find that she is credible or if I am left in a state of reasonable doubt by her evidence. For this reason, I will start with Ms. Ramballi's evidence.
[75] There is nothing about the manner or way in which Ms. Ramballi gave her evidence which suggests that she is not credible. There is no evidence of any communication between the accused and Ms. Ramballi aside from a Snapchat message where the accused asked her if she would speak to his lawyer and a later message that the accused had changed lawyers.
[76] Crown counsel conducted a very thorough cross-examination of Ms. Ramballi. No cracks appeared in her evidence. Ms. Ramballi was able to accurately describe the complainant's appearance, including that he had prominent sideburns. She also correctly answered questions in cross-examination about the location, layout, furnishings and paint colour of the complainant's apartment to an extent which, I find, is consistent with her having been there on a number of occasions. While her description was not perfect, it was not significantly flawed in my view. I have no evidence that she was shown the photographs.
[77] Having reviewed Ms. Ramballi's evidence carefully and in the context of the other evidence, I find no reason to reject it. Her evidence substantially confirms the accused's testimony that there was another Black male, named Kareem, who was at the complainant's apartment from time to time. Ms. Ramballi's evidence also confirms the accused's testimony that he was known as Izzy, that the complainant called the accused Izzy and that the complainant often confused people's names.
[78] At this point I would also mention that the complainant linked the Cîroc Vodka bottle to the perpetrator. While the only identifiable fingerprint on the bottle was from the accused, the DNA analysis of the swab from the neck of the bottle suggests that a convicted offender named Kadeem Forrester had likely been drinking from that bottle. "Kadeem" sounds a lot like "Kareem", yet the police took no steps whatsoever to investigate Kadeem Forrester. I have no evidence to counter the reasonable possibility, given the evidence of the accused and Ms. Ramballi, that Kadeem is also a tall, slim, Black male in his 20's who bears some resemblance to the accused. As a reasonable doubt can arise from the evidence or the lack of evidence, this is a significant shortcoming in the police investigation. While Det. Cst. Sharma did some very good police work in this case, his explanation that he did not investigate Kadeem Forrester because the other evidence pointed to the accused represents a classic form of tunnel vision. I would add that if investigation showed that Kadeem Forrester was quite different in his physical characteristics from the accused, that could have been of considerable assistance to the court in evaluating the case as a whole and the evidence of the accused and Ms. Ramballi in particular.
[79] As I have no basis upon which to reject Ms. Ramballi's evidence, I conclude her evidence lends significant support to the accused's testimony. However, I do not think that is a sufficient basis upon which to dismiss the case. While the complainant asserts that Kareem was the perpetrator, he has nonetheless asserted that the accused is the perpetrator. He could simply be mixing up the names as both the accused and Ms. Ramballi said he often did.
[80] It does not automatically flow from my acceptance of Ms. Ramballi's evidence that the accused should be found not guilty. However, it does follow that there was another tall Black male who looked somewhat like the accused who also attended on a regular basis at the complainant's apartment. This combined with my finding that the complainant is not a completely reliable witness and the failure of the police to develop any evidence about Kadeem Forrester, whose name sounds like Kareem and who is associated to the liquor bottle the complainant linked to his assailant, together with the accused's evidence, all contribute to leaving me in a state of reasonable doubt about the guilt of the accused.
[81] In terms of the accused's evidence, I note the following. I accept his testimony that when he was interviewed by Det. Cst. Sharma on July 12, 2017 he was scared, flustered and not able to think clearly. This is confirmed by the portions of the transcript that were referred to in evidence where the accused did not know what day it was and by Det. Cst. Sharma's evidence about the accused's demeanour at that time. I also note that the accused testified in cross-examination that he suggested to Det. Cst. Sharma that the complainant be shown his photograph because he was sure that would lead to his exoneration. That is confirmed by the interview transcript at p. 5. That is after-the-fact circumstantial evidence inconsistent with guilt. It is not determinative of anything on its own, but it is a piece of evidence of the type sometimes referred to as evidence of a "consciousness of innocence". It is the fact that such a statement was made that has evidential value, and I do not regard it as self-serving given the fact that it emerged during a rigorous cross-examination of the accused by Crown counsel.
[82] As a separate point, I would add that the accused withstood his cross-examination reasonably well, although he did not come out completely unscathed. Several inconsistencies were developed when he was cross-examined on his police statement. However, for the most part, I accept the accused's testimony that he was scared and flustered and was responding to the officer's questions without careful reflection while protesting his innocence. This could account for his statement that he was at work on July 10, 2017 and his failure to recall that he was doing volunteer work.
[83] As far as the accused's alibi is concerned, I am not prepared to place much weight on Exhibits 5, 6, or 7. There are too many unanswered questions surrounding the origin and accuracy of these exhibits. I find that Ahmed Dawson was doing his best to assist the court but that his recollection about what happened is limited. I also note that he was not the principal when the original document, Exhibit 5, was produced. He has no personal knowledge concerning the nature and extent of any volunteer work the accused did in July 2017.
[84] While I am not prepared to put significant weight on these exhibits, I do not discount them entirely. I am certainly not satisfied that the accused has put forward a false alibi. There remains some evidence, which I cannot entirely discount, to support the accused's testimony that he was not at the complainant's apartment on the morning of July 10, 2017.
[85] I have not overlooked the attendance of the accused at the complainant's apartment on the morning of July 11, 2017. Given my other findings, the significance of this evidence is somewhat diminished. I also cannot completely discount the accused's explanation for his presence.
[86] Considering the evidence as a whole, I find I am left in a state of reasonable doubt. While I do not accept the evidence of the accused, considered in the context of the rest of the evidence, it does leave me with a reasonable doubt. Other aspects of the evidence which contribute to my reasonable doubt are the failure of the police to investigate Kadeem Forrester, Shannel Ramballi's evidence supporting the accused's evidence in several important respects, the complainant's heavy use of marijuana, his use of alcohol, his lack of candour in that regard and his suggestibility, the fact that the complainant described his assailant as having no facial hair, and some minimal evidence supporting the accused's alibi.
[87] What happened to Mark Overton is terrible. He is a vulnerable individual who was badly harmed by unscrupulous people. But on the whole of the evidence I am not satisfied beyond a reasonable doubt that the accused is one of those who is responsible.
[88] The accused is found not guilty on all three counts in the indictment.
F. Dawson J.
Released: February 27, 2024
COURT FILE NO.: CRIMJ(P) 1258/18
DATE: 2024 02 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
HASSAN HASSAN
REASONS FOR JUDGMENT
F. Dawson J.
Released: February 27, 2024