R. v. Yousaf-Zai, 2010 ONCJ 196

Citation: R. v. Yousaf-Zai , 2010 ONCJ 196 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMED YOUSAF-ZAI and NADEEM JIWA Before Justice H. Borenstein Heard: November 16, 17, 2009, February 25, 2010, April 14, 2010 Reasons for Judgment delivered on May 4, 2010 Kosta Stratos ............................................................................................................. for the Crown G.J.

Partington ....................................................................... for the accused Mohamed Yousaf-Zai Laurence Cohen ................................................................................. for the accused Nadeem Jiwa BORENSTEIN J.: [ 1 ] Nadeem Jiwa and Mohamad Yousaf-Zai are charged with numerous offences arising out of three break-ins into cars and the theft of air bags and other property from those cars. The offences occurred in the early morning hours of April 14, 2007.

The sole issue at the end of the trial is identification. [ 2 ] In brief, at approximately 4:00 a.m. on April 14, 2007, the police received a call reporting that a car was being broken into on Bethany Leigh Drive in Scarborough. P.C. Denise Campbell and Jennifer King were the first officers on the scene. They spoke with two witnesses, Eric Sheon and Jonathan Reyes, who advised that as they were pulling up to Sheon’s home they came upon three men breaking into Sheon’s parked car trying to steal airbags.

As Sheon and Reyes stopped their car, the men fled and one dropped an airbag. [ 3 ] Sheon and Reyes gave police very general descriptions of two of the men. About two car lengths away, the police saw a van parked on the side of the road with its rear sliding door wide open. It is conceded that that van is registered to Mohamad Yousaf- Zai. The police looked inside the open van and saw keys in the ignition and property, including stereo equipment and airbags, in the back. Based on the affidavits filed at this trial, I am satisfied that the property in the van was stolen from the other cars that night.

I am also satisfied that van was brought to the scene by the men Sheon and Reyes saw breaking into Sheon’s car. [ 4 ] P.C. Campbell removed the keys from the ignition. She saw a wallet sitting on the passenger seat and removed the driver’s licence, which was in the name of Nadeem Jiwa. As P.C. Campbell was holding the driver’s licence, Mr. Reyes was standing behind her, looking over her shoulder and said that was the male who was standing by the back of the Sheon’s car.

The van’s licence plate was checked and came back registered to Mohammad Yousaf-Zai at an address in Markham. [ 5 ] Jiwa and Yousaf-Zai were arrested the following day. Both gave statements admitting to having been together in the van the night before. Both claimed that Yousaf-Zai dropped Jiwa off at home between 12:45 and 1:30 a.m. Yousaf-Zai told the police that he parked his car in his driveway leaving the keys in the van. In the morning, the van was stolen. Finally, the defence called Mr.

Galgan Malhotra, a thief and disreputable person, who testified that he was friends with Yousaf-Zai; he knew Yousaf-Zai leaves his keys in his van and that he took Yousaf-Zai’s van in the middle of the night and drove around breaking into cars. [ 6 ] Identification is the sole issue. Let me turn more closely to the evidence. P.C. Campbell [ 7 ] P.C. Campbell removed the licence from the wallet. It was in the name of Nadeem Jiwa, of 23 Florena Blvd. She testified that the photograph on the licence was that of the accused Nadeem Jiwa before the Court although the licence was never tendered as an exhibit.

Jonathan Reyes was standing behind her and saw the licence over her shoulder and immediately stated “that’s the guy. That’s the guy”. She asked him what he meant and he said that was the male standing by the trunk of Sheon’s car. [ 8 ] P.C. Campbell dispatched officers to check Jiwa’s residence. I heard no evidence as to what became of that check. She also dispatched officers to check the Markham address connected to the van. P.C. Campbell was advised that a female answered the door and told the police that Yousaf-Zai no longer lived at that address.

[ 9 ] P.C. Campbell questioned Reyes who provided Campbell with a general description of two of the males. P.C. Campbell testified that Reyes provided her with the following description: One male was white, one was Indian. [ 10 ] In re-examination, it was revealed that Reyes had provided further descriptors to P.C. Campbell. Both men were wearing black jackets. One was Indian or brown and that male was stocky and had some facial hair. The white male was 18 or 19 years old, of average height and possibly had a shaved head. [ 11 ] P.C. Jennifer Duggan testified that she spoke to Eric Sheon.

He saw three people breaking into the car and was able to offer a partial description of two of those males. Duggan testified that Sheon provided the following description: The two may have been wearing black jackets. One may have had a bubble type of vest. One had either permed or curly hair. One may have been brown, the other may have been white. [ 12 ] Mr. Sheon testified. He was being driven home by Jonathan Reyes at around 3:00 a.m. They had been out for the evening but drink any alcohol. As they pulled up to Sheon’s house, Sheon saw three men around his car. Reyes’ headlights were pointed toward them.

He was only metres away from the three men. He realized they were breaking into his car and trying to steal his airbags. He walked toward them. They made eye contact and appeared like deer caught in the headlights. He had only a few seconds to see them before they ran away. [ 13 ] In Court, Sheon described all three males as being around five feet, ten inches in height. One was slender, with curly hair and was wearing a black bubble-type vest. His skin had brown and white tones which Sheon explained meant he was East Asian or West Indian.

All he could say about the second male was that he was shorter and stouter than the first. [ 14 ] Sheon was evidently never asked to try to identify the males other than in dock at the trial in 2010. He testified that, to the best of his knowledge, the two accused were the two males. Yousaf-Zai was the taller, slender one while Jiwa was the shorter one. [ 15 ] Jonathan Reyes testified that when he and Sheon pulled up, he saw two men at the car and a third by the sidewalk. The headlights were shining toward the men and they were only metres apart. He did not know the men. They all ran.

One dropped an airbag. [ 16 ] Reyes testified that both males were wearing black jackets. One was stocky, 18 to 19 years old and was brown, Indian or Sri Lankan. Another was shorter and may have had a shaved head. He was white or light skinned. [ 17 ] When asked if he could provide any further description of the shorter male, he testified that all that he could recall was that the shorter male had a lighter complexion, a shaved head and that he knew immediately that it was the male whose photograph appeared on the driver’s licence.

He estimated the male to have been around 5’ 8” or 5’ 9” whereas the taller one was around 5’ 10, or 5’ 11”. He described the taller male as noticeably darker than the shorter male.

I note that Yousaf Zai is a little taller and a little darker than Jiwa. [ 18 ] Accordingly, if I were to consider all of the descriptive features mentioned by Reyes and Sheon, both to the police and in court, at the highest, Reyes described the two men in black jackets as follows: Stocky, 5’ 10” or 5’ 11”, 18 or 19, with some facial hair and was Brown, Indian or Sri Lankan white or light, shorter than # 1, 18 or 19, possibly with a shaved head. [ 19 ] Similarly, at its highest, Sheon described the two men wearing black jackets as follows: # 1 Male brown, East Asian or West Indian, 5’ 10”, slender, curly or permed hair # 2, white, shorter and stouter than # 1 One wearing a bubble vest. [ 20 ] It is conceded that the following information was recorded on the respective records of arrest for both accused: [ 21 ] Jiwa is noted as 19 years old and 178 centimetres tall, or 5’ 8”.

Yousaf Zai is described as 180 centimetres tall, or 5’ 9”. [ 22 ] Both accused gave statements to the police which the Crown introduced. In fact, Yousaf-Zai gave two statements. He called the police at 2:30 in the afternoon of April 14th and reported his van stolen. He also gave a statement to Detective Pyke on April 15, 2007 when he was arrested. [ 23 ] Jiwa’s statement to the police [ 24 ] Jiwa was in police custody giving a statement to Detective Pyke at 7:30 a.m. on April 14th, just hours after Sheon and Reyes saw the men by the car. No evidence was called as to whether his head was shaved.

The following exchanged occurred: Q: Do you know why you are here? A: Something about theft Q: Do you know about it? A: I was working up until 11 pm and then we went to play pool.

Q: Who is “we”? A: Amin and me. Q: Amin who? A: Yousaf. Q: Yes. A: Then he dropped me off at home at 1:30 a.m. Q: Were you and Amin ever on a street called Bethany tonight A: No. Q: Your wallet was found in a van registered to Mohamad Yousaf. A: I guess I left it in there tonight. Q: Why would your friends van be on Bethany? A: I don’t know. Yousaf-Zai’s first statement [ 25 ] It was conceded that, on April 14th at around 2:00 in the afternoon, a person called the police and identified himself as Mohamad Yousaf-Zai, age 23, born May 2, 1993 with a phone number of 416-321-6478.

That person reported that he was the owner of the van in question and reported that it had been stolen.

That phone call is the basis of the public mischief charge, which depends on the Crown proving that Yousaf-Zai was one of the men seen by Sheon or Reyes the night before. [ 26 ] Although there was no evidence as to Yousaf-Zai’s date of birth or telephone number, I am satisfied that Yousaf Zai made that phone call based on Yousaf-Zai’s subsequent statement to the police later that day. [ 27 ] Yousaf-Zai reported that he no longer lived at Markham Road address but lived with his mother at 1 Bramblebrook Avenue and had lived there for three days.

The male reported that he last saw his van in his mother’s driveway at around 12:45 a.m. that same morning. In other words, he told the police that he last saw his van about two hours before Sheon and Reyes saw it on Bethany Drive. He reported that he dropped his friend at home and drove to his mother’s home and parked. He said he may have locked his keys inside his van but could not recall. He could not find his keys. He advised that his keys, mechanics tools, body shop tools, other property and several provincial offences tickets were in the van.

Yousaf-Zai’s second statement [ 28 ] On April 15th, at 11:18 a.m., Yousaf Zai was arrested and gave a statement to Detective Pyke. The following exchange occurred between Detective Pyke and Yousaf-Zai: Q: Do you know why you are here? A: Yah – I was arrested for theft. Q: Where were you last night? A: I was at the garage at 123 Mansfield around 8 pm with Nadeem working on his car. Around 10 pm. I left to eat and Nadeem left in his own car to go eat. We got back to the shop around 1030 p.m. At 11:00 pm, both of us went out in my van driving the main streets, having some cigarettes because I can’t smoke at home.

My parents don’t know I smoke. Q: What time did you get home? A: Well I dropped Nadeem off at his place around 12:45 to 1:00 and I then went home to bed. Q: Were you ever on Bethany Leigh Drive? A: No. just the main streets. When I woke up the next day, I noticed my van was gone. Q: Did you lend it to anyone?

A: No. Q: Do you know how it was stolen? A: I leave the keys in the ignition and doors unlocked all the time. [ 29 ] Those are the statements of the two accused. There are differences between Yousaf-Zai’s and Jiwa’s statements. The Crown submits that the inconsistency demonstrates that both are lying and strengthens the case for the Crown. However, neither accused testified and the statement of each is only evidence as against that particular accused. There is also a contradiction between what Yousaf- Zai told the police in his first call and in his statement to Pyke.

In his first statement, he reported that he may have locked his keys in the van but could not recall. In his statement to Detective Pyke, he stated that he always leaves his keys in the ignition, unlocked. Galgan Malhotra [ 30 ] The defence called one witness, Mr. Galgan Malhotra. Mr. Malhotra has a record for theft and robbery and is a completely dishonest thief in whose evidence I would not place any faith. He was in drug rehabilitation in Montreal in 2010 and came to this trial to “man up”, in his words by admitting that he committed this offence three years earlier.

He testified that it was he, together with two others who committed this offence. [ 31 ] On the date in question, he called his good friend Yousaf-Zai at 1:00 a.m. as he felt like hanging out with Yousaf-Zai. There was no answer. Nonetheless, he took the bus to Yousaf-Zai’s home on Bramblebook arriving just after 2:00 a.m. He called Yousaf-Zai again but, again, there was no answer. He saw Yousaf-Zai’s van in the driveway and knew that Yousaf-Zai leaves his van unlocked. He wanted a cigarette so he went inside the van to look for one. Lo and behold, the keys were in the ignition.

Malhotra testified that he was struck with an idea: he would make some money by taking the van and break into cars and steal air bags. He met a fellow named Hakim two weeks earlier. Hakim lived in a shelter. When Malhotra called Hakim and suggested they drive around and break into cars, Hakim was all up for the idea. Hakim was with a third fellow, named Joe. Malhotra claimed he picked up these two at the Kennedy subway station and he taught them how to steal airbags out of cars. They broke into several cars, stealing property and airbags. Clearly, Malhotra knows how to steal airbags.

He has a record, which includes thefts of airbags, robberies, and a host of other offences, and demonstrated that he clearly knows how to steal airbags from cars. [ 32 ] Returning to Malhotra’s evidence, he testified that he and his two newfound friends drove around in the early morning hours back in April 2007 and broke into several cars culminating in the break-in into Sheon’s car. In cross-examination, he could not remember anything about the other cars broken into, including how many other cars were broken into, the streets they were on, their colours, but he remembered this one.

Despite three years having gone by and this witness in drug rehabilitation, he remembered this one in exquisite detail, including the name of the street the car was parked upon, Bethany Leigh Drive, and other details of this particular offence. In cross-examination, he could not remember which cell phone he used to call Yousaf-Zai or Hakim nor could he recall their phone numbers.

He could not remember which cell phone he was using nor who was his cell phone provider, he claimed to have phones from virtually all providers. [ 33 ] That was the evidence called at this trial. [ 34 ] Has the Crown proved that either or both Yousaf-Zai or Nadeem Jiwa were the ones who broke into the cars that night? The onus is on the Crown. There is no onus on either accused to prove their innocence. The Crown’s case against each accused must be assessed independently. One, both or neither may be guilty.

I have to also consider both accused’s statements to the police which were introduced by the Crown. [ 35 ] Cases involving eyewitness identification raise considerable risks given their potential for wrongful conviction. Eyewitness identification, even by honest witnesses, is notoriously unreliable. It is essential to review the basis for the opinion.

It is also essential to review any corroborating or contradictory evidence to support or cast doubt upon or otherwise establish identification. [ 36 ] The Crown argues that the identification evidence – buttressed by the admissions of both accused that they were together the night before in the van, coupled with the inconsistencies in their statements – demonstrates that both accused were the ones seen by Sheon and Reyes breaking into Sheon’s car.

The Crown argues the evidence of Mohotra is a pack of lies and is valueless. [ 37 ] The defence argues that Molhotra’s evidence should be accepted or at least raise a reasonable doubt. They point out that, apart from his credibility, he is certainly the type of person to commit this offence. They further argue that, apart from Molhotra’s evidence, the evidence of identification in this case is weak and insufficient to prove guilt beyond a reasonable doubt. [ 38 ] I will comment first upon Malhotra’s evidence.

As I indicated throughout these reasons, while Malhotra is a thief and disreputable, he is also unworthy of belief. I place no weight on his evidence. Ironically, he did establish that Yousaf-Zai had curly hair around the time of this offence. That much of his evidence I do accept. However, as for his evidence that he stole the van and committed these offences, I completely reject his evidence. [ 39 ] Dealing first with Mohamad Yousaf-Zai. [ 40 ] He owns the van that was used to commit this offence. By his statement, he was with Jiwa in that van several hours before it was seen on Bethany Leigh Drive.

He reported his van stolen. [ 41 ] The only direct identification of Yousaf-Zai occurred when Sheon identified him in dock three years after the incident. That in-dock identification is valueless. [ 42 ] Remarkably, no photo line-up or any other identification procedure appears to have ever been attempted in this case.

[ 43 ] His appearance is, in very general and generic terms, not inconsistent with the description provided by Sheon and Reyes. But that description is so generic as to be almost meaningless. [ 44 ] The male alleged to be Yousaf-Zai is described as 18 or 19 years old, 5’ 10”, brown skinned, possibly East Asian, West Indian, Indian or Sri Lankan with curly hair. He is described as slender. Yousaf-Zai is that height and he is slim. He had curly hair according to Malhotra. [ 45 ] His complexion would not be described as Brown, Sri Lankan or West Indian.

His complexion is only slightly darker than someone who is Caucasian. He is a little taller, slimmer and a darker than Jiwa. [ 46 ] There is also an inconsistency in Yousaf-Zai’s statement. When reporting his van stolen, he claimed that he may have locked his keys in the car but could not recall.

To Detective Pyke, he said that he always leaves his keys in the car unlocked. [ 47 ] All of those factors have to be weighed in this case in determining whether the Crown has proved beyond a reasonable doubt that Yousaf-Zai was one of the men seen by Sheon or Reyes. [ 48 ] Turning to Jiwa, in my view, the case against Jiwa is stronger than the defence submits. [ 49 ] He was identified by Reyes, who saw Jiwa’s driver’s licence photograph. The identification of Jiwa from a single photograph in the circumstances of this case requires considerable caution.

The police went over to the open van next to the break-in and pulled out the licence. Reyes saw the photograph on the licence and immediately identified that photo as the male he had seen at the back of Sheon’s truck. While Reyes seeing a single photograph may be an appropriate investigative step to further the investigation and should be given some weight, it is far too unreliable an identification procedure to result in a reliable identification that could be given much weight at trial. If that were the only identification of Jiwa, it would plainly be insufficient to result in a reliable identification.

The concern is that the witness mistakenly identified the photograph as the person he briefly saw. [ 50 ] But there is more. His wallet was in the van used to commit this offence and he admits being in the van several hours before it was seen by Sheon. That significantly bolsters the identification of Jiwa. There is a small element of circularity to this reasoning.

If the concern is that the witnesses mistakenly identified the photograph on the licence as the suspect he had just seen, then evidence that the male in the photograph was in fact in the van shortly before the offence is somewhat circular but, despite that, it does offer some strength to the identification. [ 51 ] Jiwa gave a statement to the police stating that he was in the van with Yousaf-Zai, that he was dropped off at home and must have left his wallet in the van. Does that statement raise a reasonable doubt in the context of all of the evidence?

The police went to his home yet no evidence as to whether he was home. [ 52 ] All of these factors have to be considered in determining whether I am satisfied beyond a reasonable doubt that Jiwa was one of the men by Sheon’s car. [ 53 ] In the end, the identification evidence in this case is weak. It is bolstered significantly by the circumstantial evidence. However, many questions raised in the evidence remain unanswered. [ 54 ] The men who broke into the car were strangers to Sheon and Reyes. They had only seconds to see the men. The area was well lit by the cars headlights.

Inexplicably, no photo line-up or other identification procedure was every employed in this case. The in- dock identification is valueless in this case. [ 55 ] The description of Jiwa was extremely generic. He was described as having a shaved head, yet there was no evidence as to how he appeared when arrested several hours later. In his statement to the police, he claimed to have been home. The police went to his home in the middle of the night, yet there was no evidence as to whether Jiwa was at home. Reyes testified that he immediately recognized the photograph on the licence. P.C.

Campbell testified that that licence was in the name of Nadeem Jiwa. How similar was the photograph on the licence to the description given by Sheon and Reyes. I do not know as it was never introduced into court. I presume it was a good likeness based on the evidence of Reyes and P.C. Campbell but it is unclear. [ 56 ] There is no reason why at least Sheon, who did not see the licence, was not asked to view a properly constructed, fair line- up. The fact that Jiwa’s appearance is not inconsistent with the general description given by the witnesses adds very little to the identification in this case.

He is 19 and has a light complexion. He is also a little shorter, stouter and lighter skinned than Yousaf-Zai. There is no evidence whether he had a shaved head when he was arrested the next morning. [ 57 ] The in-dock identification by Sheon is valueless three years later. [ 58 ] Malhotra is a friend of Yousaf-Zai. He is unworthy of belief. The defence points out that Malhotra is the type of person to commit this offence. That is true and is relevant to the issue of identification.

There is no similar fact evidence that Yousaf-Zai or Jiwa are also the type of people to steal airbags. [ 59 ] In the end, while highly suspicious, the proof against both of these men falls far short of proof beyond a reasonable doubt. [ 60 ] Further, with respect to Jiwa, his statement to the police, in the context of all of the evidence also raises a reasonable doubt. [ 61 ] They will both be acquitted. Released: May 4, 2010 Signed: “Justice Borenstein”