R. v. Jalal, 2020 BCPC 7

Citation: R. v. Jalal 2020 BCPC 7 Date: 20200117 File No: 253389 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUJJAD JALAL AND SIMBARASHE KAMZIMBI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: M. Myhre Counsel for Accused Jalal: M. Fogel Counsel for Accused Kamzimbi: C. Corriveau Place of Hearing: Vancouver , B.C. Date of Hearing: October 8, 9, 10, 11, November 6, 16, 2019 Date of Judgment: January 17, 2020

INTRODUCTION [ 1 ] On the afternoon of July 26, 2018 a group of young men rushed into Mr. McGee’s apartment and assaulted him. They used their fists, knees, a fish bat and a pair of scissors. Mr. McGee suffered a deep cut to his head, and a concussion. Mr. Kamzimbi and Mr. Jalal are charged with offences related to this event. Specifically, they are charged with break and enter with intent, assault with a weapon, and assault causing bodily harm. [ 2 ] During the trial, the Crown called several witnesses and filed surveillance video and still photographs capturing the images of the suspects while they were at Mr.

McGee’s building. Specifically, the images were from the intercom, the lobby, the elevator, and the stairwell. [ 3 ] Mr. Jalal testified and he acknowledged being in Mr. McGee’s suite. He testified he entered out of concern for his friends, he denied trying to grab Ms. McGee’s phone and he denied assaulting Mr. McGee. The central issue regarding Mr. Jalal is whether all of the accepted evidence proves his guilt beyond a reasonable doubt. [ 4 ] Mr. Kamzimbi did not testify and the central issue is whether the evidence proves beyond a reasonable doubt that he was the black male who assaulted Mr. McGee.

On this issue, the Crown relies heavily on the recognition evidence of two officers who identified Mr. Kamzimbi from the surveillance video and the still photographs. THE EVIDENCE Constable Tong [ 5 ] Constable Tong arrived at the McGee’s’ home at about 4:45 p.m. and he noticed that Mr. McGee had a head injury, that he had blood on his nose, and his speech was slow. Despite this, Constable Tong understood Mr. McGee and he felt that Mr. McGee understood him. Mr. McGee [ 6 ] Mr. McGee is 50 years old; he is on disability and he supplements this money by working under the table as a handyman.

He suffers from epilepsy, he has suffered concussions, and he occasionally has seizures. Mr. McGee is addicted to crack cocaine and he has a criminal record that includes convictions between 1989 and 1998 for failing to appear, assault, theft under, possession of a stolen credit card, failing to comply with a recognizance and drug possession. In total, there are 15 convictions. Finally, there are occasions when Mr. McGee has delivered drugs for others. [ 7 ] Mr. McGee has lived for several years with his wife in an apartment suite located at 2298 Cassiar Street. On the afternoon of July 26, 2018, Mr.

McGee was in his living room when he heard a knock at his door. Mr. McGee answered the door and outside in the hallway was his friend Rick and a black male. Rick asked for some baking soda and Mr. McGee told him that he did not have any. He then stepped out of his apartment and he saw a white male and Mr. Jalal standing in the stairwell. It appeared to Mr. McGee that Mr. Jalal was texting on his phone. [ 8 ] When Mr. McGee saw Mr. Jalal and the white male he quickly backed into his apartment and he tried to close the door.

Before he could close the door the black male and the white male pushed the door open and chased Mr. McGee into his apartment. [ 9 ] Mr. McGee retreated to the living room sofa. Mr. Jalal went to Ms. McGee and asked if she was on the phone with the police and he tried to grab her phone. The black male and the white male went into the living room and cornered Mr. McGee. At this point, the white male grabbed a fish bat that Mr. McGee kept stuffed in the cushions and he started hitting Mr. McGee in the head with it. The black male started kneeing and punching Mr.

McGee and he was joined by the white male who also kneed and punched him. The black male then grabbed a pair of scissors from the coffee table and he stabbed Mr. McGee on the rear left side of his head. During the assault, Mr. McGee could not hear any further conversation between Ms. McGee and Mr. Jalal. [ 10 ] Mr. Jalal ultimately left the kitchen area and approached Mr. McGee. Mr. Jalal then retrieved the fish bat and struck Mr. McGee a few times on the back of the neck. Thereafter the group ran from the apartment. [ 11 ] As for injuries, Mr.

McGee received a half-inch deep cut to his head, an injury to his nose and a concussion. [ 12 ] The next time that Mr. McGee saw Mr. Jalal was approximately a week or two after the assault. On this occasion, Mr. McGee encountered Mr. Jalal and the black male in the stairwell of the building. When this occurred, Mr. Jalal told the black male to apologize for what he had done to Mr McGee. The black male apologized and the parties went their separate ways [ 13 ] Mr. McGee first met Mr. Jalal in January 2018. Thereafter, he purchased cocaine from Mr. Jalal on average of two to three times per week.

The two originally had a good relationship; however, things began to deteriorate to the point where Mr. McGee felt nervous about Mr. Jalal. [ 14 ] Mr. McGee described the white male who assaulted him as, 6 foot 2 inches, medium build, wearing a black zippered hoodie, grey sweat pants, and runners. As for the black male, Mr. McGee described him as 6 foot 2 inches, slim, wearing a dark New York Yankees baseball cap, and black sweat pants. [ 15 ] The surveillance video from the lobby was played for Mr. McGee and he identified his friend Rick as the person who opened the front door for the three males.

He then identified a male in a white shirt as being Mr. Jalal and the person wearing the New York Yankees hat as the black male. Significantly, Mr. McGee was incorrect when he identified the male in the white shirt as Mr. Jalal. [ 16 ] Mr. McGee’s drug use has made him familiar with the drug trade. He has borrowed money from Rick in order to maintain his drug habit and he denied that he borrowed money from Mr. Jalal. Mr. McGee acknowledged that when he is under the influence of drugs

that he can be paranoid, irrational and his judgment is impacted. He also acknowledged that can be irritable when he is coming down from drugs. Mr. McGee testified that he was not under the influence of drugs when he was assaulted. [ 17 ] Counsel for Mr. Jalal suggested to Mr. McGee that, he had gone to the door with the fish bat because he was intent on fighting. Mr. McGee denied this suggestion and he also denied the suggestion that he pulled the black man into the apartment. [ 18 ] Counsel for Mr. Jalal presented Mr.

McGee a surveillance photograph and he agreed that he was incorrect in his direct evidence when he described the white male as wearing a black hoodie. Mr. McGee attributes his error to having been hit in the head with the fish bat and having a concussion. [ 19 ] Lastly, Mr. McGee was questioned during cross-examination about the Crown’s notes of his advance interview where he (Mr. McGee) thought that Mr. Jalal was at the apartment because of money owed. Mr. McGee testified that this was an error and that he did not owe Mr. Jalal any money. Ms. McGee [ 20 ] On the day of the assault, Ms.

McGee was in her apartment with her husband when she heard a knock on the door. Ms. McGee answered the door and she saw Rick in the hallway. She also saw a black male standing in the stairwell and peaking around the corner. [ 21 ] Rick asked Ms. McGee about money that she owed him and she explained that she would pay him on Friday. Rick then told her that if she did not pay him that she would get hurt. Ms. McGee then closed the door and she went to the kitchen area and phoned her friend, Ms. Betty-Jane Smith. [ 22 ] Approximately five minutes later Ms. McGee heard another knock at the door. She told Mr.

McGee not to answer it; he did not follow her direction and he got up and went to the door. When Mr. McGee went to the door his hands were empty. Ms. McGee could not hear what was said at the door because she was on the phone and in the kitchen. [ 23 ] Shortly after Mr. McGee opened the door a black man, a white man, and Mr. Jalal rushed into the apartment. Mr. McGee was slammed into the bedroom door and from there he retreated to the sofa in the living room. The black man and the white man went to Mr. McGee and Mr. Jalal went to Ms. McGee. [ 24 ] Mr. Jalal stood directly in front of Ms.

McGee and asked if she was talking to the police and she told him that she was speaking with a friend. Mr. Jalal then tried to grab the phone but Ms. McGee moved it behind her back. While this was occurring, the black man and the white man were kneeing and punching Mr. McGee and at one point, the black man stabbed Mr. McGee with a pair of scissors. [ 25 ] At some point, Mr. Jalal abandoned his efforts to get the phone, he then jumped over a loveseat and he started to hit Mr. McGee with his fists. Mr. Jalal then grabbed a small bat from beside the couch and he started to hit Mr. McGee with it. Ms.

McGee screamed and the three males ran from the apartment. Ms. McGee then called the police and she began treating Mr. McGee’s injuries. [ 26 ] While being questioned by the Crown, Ms. McGee acknowledged she had noticed an error in her police statement. In this regard, she incorrectly put in her statement that, Mr. Jalal first assaulted Mr. McGee and then confronted her, when in fact, Mr. Jalal confronted Ms. McGee first and then he assaulted Mr. McGee. [ 27 ] During cross-examination, Ms. McGee agreed that she was scared, overwhelmed and worried about her husband when the three males were in the apartment. Ms.

McGee was confronted with her police statement and she acknowledged telling the police that she was on the phone with Ms. Smith after the men entered her apartment whereas she testified that she was on the phone when the men entered. As for what she stated in her police statement, Ms. McGee testified that she mixed things up when she gave her statement, she attributed this to being upset and not thinking clearly at that time. [ 28 ] Counsel for Mr. Jalal also pointed Ms. McGee to the portion of her police statement where she stated that it was the black man who jumped over the loveseat; Ms.

McGee responded that her police statement was incorrect on this point. She explained that she was overwhelmed and traumatized when she wrote it. [ 29 ] Counsel for Mr. Jalal also suggested to Ms. McGee that she was being untruthful because she wanted Mr. Jalal in jail. It was suggested that this would protect Mr. McGee from having rushed the group with the bat and also free him from paying the money owed to Mr. Jalal. Ms. McGee maintained that Mr. McGee did not assault anyone with the bat and that he did not owe Mr. Jalal money. [ 30 ] As for Mr. Jalal’s appearance, Ms.

McGee described him as having short hair with a short ponytail and that he was wearing glasses with thicker rims and a white shirt. The surveillance video was played for Ms. McGee and she identified Mr. Jalal as the person in the video without a shirt. [ 31 ] As for the black male, Ms. McGee estimated that he was 6 foot 3 to 6 foot 4, between 20 to 40 years of age, very dark skin, skinny, dressed in black, and wearing a black New York Yankees baseball cap. Ms. McGee described the white male as being slightly taller than her height of 5 foot 2 inches. She also estimated that the entire event lasted 20 minutes. Ms.

Smith [ 32 ] Ms. Smith is 70 years old and she lives in the same building as the McGees. Her involvement in the matter occurred when she received a phone call from Ms. McGee. At the time Ms. McGee sounded slightly hysterical and she was asking Ms. Smith come up to her apartment right away because some guys were trying to push their way in. [ 33 ] Ms. Smith left her apartment and as she was securing her door she looked down the hallway and she saw three men come down the stairs, exit through a side door, and jump a fence. Ms. Smith made her way to Ms.

McGee’s apartment and while heading to the apartment she remained on the phone with Ms. McGee and at one point Ms. McGee said they are trying to hurt him.

[ 34 ] Ms. Smith arrived within a few minutes of receiving Ms. McGee’s phone call. When she entered the apartment Ms. Smith saw Mr. McGee with a blood-soaked cloth on his head. Ms. Smith waited in the apartment and the police arrived within seven minutes of her arrival. Constable McLachlan [ 35 ] Constable McLachlan testified he recognized Mr. Kamzimbi as the black male shown in the surveillance videos and still photographs from the lobby and intercom area of Mr. McGee’s apartment. [ 36 ] As for Constable McLachlan’s familiarity with Mr.

Kamzimbi, he testified he worked as a school liaison officer and he interacted with Mr. Kamzimbi when he was in grades 8, 9, and a portion of his grade 10 year. These interactions were four days per week several times per day. [ 37 ] The duration and significance of Constable McLachlan’s interactions with Mr. Kamzimbi were casual, short, and benign. In this regard, they usually involved the officer greeting Mr. Kamzimbi, encouraging Mr. Kamzimbi to make it to class and asking general questions regarding Mr. Kamzimbi’s welfare. There was the odd occasion when Constable McLachlan met with Mr.

Kamzimbi for 30 minutes to an hour. Constable McLachlan also went to Mr. Kamzimbi’s home during the teachers’ strike to see how he was doing. Constable McLachlan’s last interaction with Mr. Kamzimbi was in the summer of 2017 at a festival. Where they had a brief exchange. [ 38 ] As for Mr. Kamzimbi’s appearance, Constable McLachlan testified that when Mr. Kamzimbi was 15 he was slightly taller than other kids his age, that he had short hair, a somewhat oval face, athletic build and black skin. He also testified that Mr.

Kamzimbi’s appearance was generally the same during his high school years. [ 39 ] Constable McLachlan was asked to compare Mr. Kamzimbi’s in court appearance to how he appeared when the officer saw him in 2017. The officer responded that Mr. Kamzimbi had grown four to five inches, that his face is now much thicker, that his chin has rounded out and that he is more muscular. [ 40 ] The Crown asked Constable McLachlan to look at five photographs that were from a surveillance camera in Mr. McGee’s apartment lobby. Of these photographs, Constable McLachlan identified photograph 4 as showing Mr. Kamzimbi.

He testified that he identified Mr. Kamzimbi by the structure of his face in that it narrowed at the chin, the broad nose, the general complexion, and Mr. Kamzimbi’s overall build. When questioned further, Constable McLachlan testified that Mr. Kamzimbi was historically thinner and in the photographs he appears slightly different because he has filled out. [ 41 ] Constable McLachlan was cross-examined about the quality of the five photographs. He agreed that photograph 1 was of no assistance because the black male had his back to the camera.

Photograph 2 was of no assistance because a white male blocked the majority of the black male’s image including his face. As for photograph 3, the black male was at an angle to the camera and a portion of his jawline was obscured because he was holding a phone to the left side of his face. The officer also agreed that the male’s baseball cap and the colour resolution of the photograph made it almost impossible to determine the shape of the black male’s nose, eyes or lips. [ 42 ] As for photograph 4, Constable McLachlan agreed that the baseball cap made it almost impossible to see the shape of the male’s eyes.

He also agreed one could not tell the shape of the male’s head, or anything about his left ear. As for the mouth, Constable McLachlan testified that he could identify the lips and the shape of the mouth. [ 43 ] The surveillance videos were played for Constable McLachlan and on the lobby video he identified the black male shown at 3:54:50 as being Mr. Kamzimbi. As for the video of the intercom panel, he identified Mr. Kamzimbi as the black male in the video. He testified that he had a particularly good view of the male as he moved left to right and on two occasions when he came close to the camera.

Constable McLachlan identified 3:53:47 as a spot where he felt that he got a particularly good view of the black male. Constable Obuck [ 44 ] Constable Obuck testified that she recognized Mr. Kamzimbi as the black male shown in the surveillance videos and photographs. [ 45 ] As for Constable Obuck’s ability to recognize Mr. Kamzimbi, Constable Obuck has been a police officer for 17 years. Her recent assignment is with the Yankee Squad which is a squad that focusses on interacting with youthful persons. [ 46 ] While working in the Yankee Squad, Constable Obuck interacted with Mr.

Kamzimbi in excess of one hundred times. She first met him in 2014 or 2015 and her last contact with him was in August of 2019. The interactions were typically a few minutes and involved Constable Obuck stopping to speak with Mr. Kamzimbi. The longest interaction was a face to face discussion for approximately 20 minutes. [ 47 ] As for Mr. Kamzimbi’s appearance, Constable Obuck testified that when she regularly dealt with him that he was 5 foot 10 inches, black-skinned, short black hair, athletic and that there was nothing distinctive about him. As for changes, Constable Obuck testified that Mr.

Kamzimbi might be taller, but that his face was always familiar. [ 48 ] Constable Obuck felt that Mr. Kamzimbi had matured since the years 2014 to 2016. In this regard, she explained that he has just grown up and had the same face. [ 49 ] Constable Obuck was shown the surveillance photographs and she recognized Mr. Kamzimbi as the black male. She explained that she is not able to say what it is that caused her to recognize him just that she recognized the face and that she is 100 % certain that it is Mr.

Kamzimbi in the photographs. [ 50 ] The surveillance video from the lobby was played for Constable Obuck and she recognized Mr. Kamzimbi. Constable Obuck felt that the images at 3:54:27 and 3:55:57 best captured Mr. Kamzimbi’s features.

[ 51 ] Counsel for Mr. Kamzimbi cross-examined Constable Obuck on the image in photographs 3 and 4. Constable Obuck agreed that the photographs contained no references to height. She also acknowledged that photograph 3 was such that she could not see part of the male’s jaw, that she could not determine the shape of the male’s head, nor could she discern how short the male’s hair was. Constable Obuck was asked if she could see the male’s eyes and her response was that she recognized Mr.

Kamzimbi. [ 52 ] As for photograph 4, Constable Obuck acknowledged that she could only see a portion of the right side of the male’s face and that she could not see all of his eyes and only those portions that were lateral to the bridge of his nose and down. She agreed that she could not tell from the photograph if the male had long eyelashes. Mr. Jalal. [ 53 ] Mr. Jalal is 19 years old. He is living common law and he has a young child. In July 2018, he was living with his parents in a building that was about 100 metres from the McGee’s building. [ 54 ] On July 26, 2018, Mr.

Jalal was at his parents’ home with his friends, Austin, and Anthony. It was decided that Mr. Jalal and his friends would go across the street to Warren’s place. [ 55 ] Mr. Jalal has known Warren for some time and they are good friends. On occasion, Mr. Jalal would purchase beer for Warren, and on occasion, Warren and his wife would cook dinner for Mr. Jalal and his girlfriend. Warren and Mr. McGee lived in the same building and Mr. Jalal regularly visited the building because he knew 4 to 5 people living there. [ 56 ] When Mr.

Jalal and the others arrived at Warren’s building they waited at the front door for Rick, a mutual friend, to come down and let them in. Once inside the group took the elevator to the second floor and they went to Warren’s apartment. It was at this point that Warren reminded Mr. Jalal that he does not like more than two guests at a time. It was decided that the others would go to Rick’s apartment and socialize while Mr. Jalal visited with Warren. [ 57 ] While at Warren’s Mr. Jalal had one beer and had just started a second beer when Warren asked for a cigarette and he told Mr. Jalal to roll a marihuana cigarette.

Mr. Jalal rolled the cigarette and Warren opened the door to the suite to permit the smoke to escape from the apartment. [ 58 ] Prior to finishing his second beer, Mr. Jalal heard Rick and his friends in the hallway. From what he heard, Mr. Jalal concluded that Rick was asking his friends to leave his apartment. Mr. Jalal went out into the hallway and learned that Rick had asked Mr. Jalal’s friends to leave his apartment because he was going to go upstairs to Mr. McGee’s apartment and collect some money. [ 59 ] Mr. Jalal decided to follow Rick to Mr. McGee’s apartment. Mr.

Jalal’s purpose was to see if he could also collect some money that was owed to him. Mr. Jalal thought that he would ask Mr. McGee for his money after Rick had been paid. [ 60 ] The group, including the black male and the white male, took the north stairwell to the third floor. The hallway was not large enough to have all of them stand in front of the McGee’s apartment door so they arranged themselves with Rick at the door, followed by the black male, the white male and then Mr. Jalal who was in the stairwell. [ 61 ] Rick knocked on Mr. McGee’s apartment and the door was answered by Ms. McGee. At this stage, Mr.

Jalal was in the stairwell and he was taking a picture of himself drinking a beer. Mr. Jalal heard the door open and he heard Ms. McGee but he could not make out what was said. Mr. Jalal heard the door close and he assumed that Ms. McGee had gone to get Mr. McGee. [ 62 ] Mr. Jalal next heard Rick knocking on the door and Mr. McGee answering it. Mr. McGee aggressively exited his apartment and in his hand was a bat. His eyes were wide open, his clothes were ripped and he looked like he has been up for hours. Mr. Jalal assumed that Mr. McGee was strung out. [ 63 ] Mr.

McGee held the bat above his head and he swung it down at which point the black man grabbed the bat. Mr. McGee and the black man started wrestling for the bat and this made Mr. Jalal feel anxious and a little frightened for his friends. [ 64 ] Mr. Jalal believes that Mr. McGee pulled the black man into his suite at which point the white man followed. Mr. Jalal put his phone into his pocket and he followed the others. Mr. Jalal did this because he wanted to see if his friends were alright. [ 65 ] Once inside the apartment, Mr. Jalal encountered Ms.

McGee who was standing in the hallway between her bedroom and the kitchen. According to Mr. Jalal, Ms. McGee looked freaked out and mad. It was his perspective that she was panicked, frightened, and confused. [ 66 ] Mr Jalal did not move past Ms. McGee and they stood face to face with each other. From his position, Mr. Jalal could hear moans coming from the living room but he could not see into the room. As for Ms. McGee, she was swinging her phone and freaking out. Mr. Jalal asked her why she was doing this and she responded that she was on the phone with Betty-Jane. Mr. Jalal told Ms.

McGee that things did not need to escalate or get violent and that they would leave. Mr. Jalal then left the suite. He testified that he did not try and get past Ms. McGee because he was concerned that people might think he was acting inappropriately. He also testified that he did not try to take the phone from Ms. McGee, rather, she may have perceived that he was trying to take the phone because he was talking with his hands. [ 67 ] Mr. Jalal testified that he was frightened for his friends and that he felt that their lives were in danger. Mr. Jalal’s fear was based on his knowledge that Mr.

McGee carried a knife in his sock. Mr. Jalal elaborated that he did not attempt to pass Ms. McGee because she was screaming and he was concerned that any contact with her would be viewed negatively. As such, he decided to act selfishly and leave. [ 68 ] Mr. Jalal took the stairs as it was the fastest way out of the apartment building. Mr. Jalal saw Rick ahead of him and when he was on the stairs the other two caught up to him. Thereafter they exited and went out to the garden area where they sat on a ledge and

finished their beers before returning to Mr. Jalal’s parents’ home. [69] As for any plan to assault Mr. McGee, Mr. Jalal maintained he had no idea that Mr. McGee was going to be assaulted and thathis purpose in going to the apartment was simply to tag along in order to see if he could get the money that Mr. McGee owed him. Asfor entering the apartment, Mr. Jalal maintained that he entered to ensure that his friends were ok. [70] The Crown cross-examined Mr. Jalal about his relationship with Mr. McGee and he responded that it was good in July of 2018.The Crown suggested to Mr. Jalal that he sold drugs to Mr.

McGee and Mr. Jalal responded “allegedly.” The Crown then suggested thatMr. Jalal sold crack cocaine to Mr. McGee and Mr. Jalal responded, “I suppose.” He was then asked if he was uncertain about this andMr. Jalal said that he was not a scientist. He later testified that he never sold crack cocaine, rather, a couple times per week he wouldexchange crack cocaine for marijuana. [71] As for the monies that Mr. McGee owed, Mr. Jalal originally testified that it was not for crack cocaine and that he could notrecall why Mr. McGee owed him money. He then offered that Mr. McGee had borrowed money from him on occasion.

Later on in hisevidence, Mr. Jalal testified that about a week before the July 26 incident, Mr. Jalal became aware that Mr. McGee had shorted him justover a hundred dollars worth of marijuana. This amount represented approximately half of the transaction. When the Crown pointed outto Mr. Jalal that he had originally testified that he did not know the origin of the debt, Mr. Jalal responded that he did not know how toexplain it. [72] According to Mr. Jalal, he and Mr. McGee engaged in one or two further transactions of crack cocaine for marijuana in theweek leading up to July 26.

The Crown then asked why he went on July 26 to ask for money and not marijuana. Mr. Jalal respondresponded that he did not think that Mr. McGee would have the marijuana because he kept saying he would have some marijuana butthis never materialized. This prompted the Crown to explore how could Mr. McGee not have marijuana after the debt was acquiredgiven that he and Mr. Jalal had engaged in one or two subsequent transactions. Mr. Jalal responded by changing his earlier testimony andsuggesting that there had only been the one transaction after the debt was incurred. When confronted with this inconsistency Mr.

Jalalresponded that he did not understand the earlier question. [73] The Crown also questioned Mr. Jalal about the identity of the black man who he identified as Anthony and the identity of thewhite man who he identified as Austin. In response Mr. Jalal indicated that the two men were acquaintances and when it was pointed outto Mr. Jalal that he had changed from calling them friends he responded that it was a slip of the tongue and he denied that he was tryingto distance himself from them. [74] Further questions by the Crown related to Mr. Jalal’s association with Austin and Anthony. Mr.

Jalal testified that he did knowthem well, that they were part of a larger group, that their names were nicknames and that he did not know their last names. When askedif he could provide the name of someone who could assist in identifying Anthony, Mr. Jalal originally responded that this was theCrown’s job and then he stated that he could not because he no longer associated with the group. He also testified that it never occurredto him to get them to come and testify and to do so would be dangerous. [75] When questioned about knowing Mr. Kamzimbi, Mr.

Jalal testified that the first time they met was on the first day of the trial.The Crown suggested that Mr. Jalal was with Mr. Kamzimbi four years earlier at an incident at the Oakridge Mall. In response, Mr. Jalaloriginally testified, “no” but he then changed to he did not recall which evolved to it was possible. The Crown then suggested to Mr. Jalalthat there was an incident in 2016 where he had an encounter with the police when he was in the backseat of a vehicle with Mr.Kamzimbi and Mr. Jalal responded that he did not recall this happening. The Crown asked Mr.

Jalal if he was still maintaining that he didnot know Mr. Kamzimbi before the start of trial and Mr. Jalal indicated that he was and then he offered that Mr. Kamzimbi looked likeAnthony. LEGAL PRINCIPLES [76] Mr. Jalal and Mr. Kamzimbi are presumed to be innocent. This presumption remains throughout and is only displaced if theCrown has, on the evidence, satisfied me beyond a reasonable doubt that Mr. Jalal and Mr. Kamzimbi are guilty. [77] A reasonable doubt is not an imaginary doubt or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it isbased on common sense.

It is logically derived from all of the evidence or absence of evidence. It is not sufficient for me to believe thatMr. Jalal and Mr. Kamzimbi are probably guilty or likely guilty. If I do, I must acquit them. I acknowledge that proof to an absolutecertainty is not required for a finding of guilt, rather, the standard is to a level of proof beyond a reasonable doubt: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320. Mr. Jalal [78] In the circumstances of this case, Mr. Jalal testified and he denied any wrongdoing. As such, I must approach his evidence inaccordance with R. v. W (D), (SCC), [1991] 1 S.C.R. 742: 1.

If I believe the testimony of Mr. Jalal I must acquit him. 2. Even if I do not believe Mr. Jalal’s testimony but I am left in a reasonable doubt by it, I must acquit. 3. Even if I do not accept Mr. Jalal’s evidence, I must consider if on the basis of all the evidence that I accept am I convincedbeyond a reasonable doubt by the evidence of the guilt of Mr. Jalal. [79] The Crown argues that Mr. Jalal was not a credible witness and his evidence should be rejected. In support, the Crown arguesthat Mr.

Jalal’s evidence was inconsistent, that he was evasive, that his evidence evolved and that it was implausible and unbelievable.Some examples offered by the Crown include; Mr. Jalal’s reluctance to answer questions, his explanation for leaving his friends, histestimony regarding the “marijuana debt” and his evidence regarding when he first met Mr. Kamzimbi.

[ 80 ] As for the McGee’s, the Crown argues that their testimony was credible and reliable and therefore their evidence should be accepted. The Crown acknowledges some inconsistencies in their evidence but argues the inconsistencies were minor and do not detract from their overall reliability. Accordingly, the Crown encourages the court to accept the McGee’s evidence and argues their evidence proves Mr. Jalal’s guilt beyond a reasonable doubt. [ 81 ] Counsel for Mr. Jalal argues that the McGee’s evidence is so lacking in reliability that it would be unsafe to rely on their evidence.

In this regard, counsel highlights that Mr. McGee was addicted to crack cocaine, that he suffers from epilepsy and that he suffered a concussion. Counsel highlights the deficiencies in Mr. McGee’s evidence, notably, he incorrectly described Mr. Jalal as having a white shirt, his evidence changed on hearing Ms. McGee on the phone while being assaulted and he incorrectly described the white male as wearing a black hoodie. [ 82 ] Further to the above, counsel also argues the speed of the events and having been hit on the head compromised Mr. McGee’s reliability and that his confusion regarding Mr.

Jalal’s clothing demonstrates this and creates a doubt on whether Mr. Jalal assaulted Mr. McGee. [ 83 ] As for Ms. McGee, counsel argues that the trauma and emotion experienced interfered with her ability to observe what happened, record the events to her memory and accurately recall them. Counsel highlights some of the following difficulties with Ms. McGee’s evidence; her changing the order of events between her police statement and her interview with the Crown, her testifying that she was on the phone when the group entered the apartment whereas in her police statement she stated she phoned Ms.

Smith after the group entered, and her testimony that Mr. Jalal jumped over the loveseat while in her statement to the police she stated the black man jumped over the loveseat. [ 84 ] Counsel also refers to external inconsistencies. Specifically, Mr. McGee testified that the bat came from the cushions on the couch and Ms. McGee testified that the bat came from beside the couch, Ms. McGee estimated that the events occurred over twenty minutes whereas Ms. Smith’s evidence suggests that the events occurred over a few minutes. Ms. McGee incorrectly describing Mr.

Jalal as wearing a white shirt when the video surveillance establishes that he was shirtless. Finally, Ms. McGee described the men entering the apartment in a different order than described by Mr. McGee. [ 85 ] Counsel for Mr. Jalal also argues that his evidence should be accepted. In this regard, counsel argues that Mr. Jalal’s evidence was believable, coherent, and logical. Therefore, counsel argues Mr. Jalal’s denial requires that the court acquit him. [ 86 ] Finally, counsel argues, that even if the court does not believe all of Mr.

Jalal’s evidence, the totality of the evidence that is accepted raises a doubt. Based on the evidence that is accepted am I convinced beyond a reasonable doubt that Mr. Jalal is guilty Analysis Do I believe Mr. Jalal’s evidence? [ 87 ] I have no hesitation in rejecting those portions of Mr. Jalal’s evidence that conflict with the McGee’s evidence or is not supported by the surveillance images. My rejection of Mr. Jalal’s evidence is based on the cumulative difficulties with his evidence. Below I set out some but not all of the numerous reasons why I reject Mr.

Jalal’s evidence. [ 88 ] During cross-examination, Mr. Jalal was evasive to the extreme. In arriving at this conclusion, I have considered that testifying is foreign to most and can result in a response style that appears to be evasive. In this case, I am satisfied that Mr. Jalal’s responses were driven by a desire to avoid answering difficult questions and they were not a consequence of being nervous or confused. [ 89 ] Examples of Mr.

Jalal being evasive are, he took long pauses before answering questions, he would frequently avoid answering a question by asking a question and he frequently responded to the Crown’s questions by asking the Crown if it was a question. This was particularly evident when the Crown made suggestions to Mr. Jalal and Mr. Jalal repeatedly asked if they were questions despite having been told that all suggestions are questions. [ 90 ] A further example of Mr. Jalal’s evasiveness involved the subject of his drug trafficking to Mr. McGee. Mr.

Jalal originally stated he allegedly sold drugs, and when questioned on this he stated he “suppose” he sold drugs and when it was suggested that it was crack cocaine he responded that he was not a scientist. [ 91 ] Mr. Jalal’s evidence also contained some key inconsistencies. For example, Mr. Jalal testified that he could not recall why Mr. McGee owed him money, however, when pressed he developed an elaborate detailed story of Mr. McGee shorting him on a marijuana purchase that resulted in Mr.

McGee owing him one hundred dollars. [ 92 ] A further example of Mr Jalal being inconsistent is that during his direct examination Mr. Jalal referred to the black male and the white male on several occasions as “friends”, however, on cross-examination he retreated from this phrase and referred to them as “acquaintances”. [ 93 ] Mr. Jalal’s testimony addressing when he first met Mr. Kamzimbi further exemplifies Mr. Jalal’s inconsistency. In this regard, Mr. Jalal testified he first met Mr.

Kamzimbi on the first day of trial, however, when the Crown pointed to an incident at the Oakridge Mall apparently involving Mr. Kamzimbi and Mr. Jalal, Mr. Jalal responded that this did not happen which then became he could not recall if he had been with Mr. Kamzimbi at that time. [ 94 ] A further difficulty with Mr. Jalal’s evidence is that it simply did not make sense on several points. It did not make sense that he would just walk away and leave the apartment when he felt that his friends’ lives were in danger. This implausibility is amplified when one considers the following; Mr.

Jalal entered the apartment because he was afraid for his friends, further, once inside the apartment Mr. Jalal heard moaning, and finally, Mr. Jalal knew that Mr. McGee carried a knife in his sock. To believe that he would

walk away requires a strong imagination. [ 95 ] It did not make sense that Mr. Jalal would continue to trade crack cocaine for marijuana despite Mr. McGee still owing him one hundred dollars. It did not make sense that Mr. Jalal suddenly switched from wanting to obtain a hundred dollars worth of marijuana that was owed to him to wanting to receive cash. Finally, it did not make sense that Mr. Jalal would position himself in the stairwell rather than at the apartment door with Rick. I say this because Mr. Jalal’s claimed purpose for going to the apartment was to see if Mr. McGee had extra money to pay him.

One ponders how this purpose could be achieved while waiting in the stairwell. [ 96 ] A further observation with Mr. Jalal’s evidence is that it appeared to develop. Examples include, his evolving explanation for not trying to move past Ms. McGee, his description of a neighbour in the hallway, and his responses to the details of Mr. McGee owing him a hundred dollars. Do the portions of Mr. Jalal’s evidence that are accepted raise a reasonable doubt? [ 97 ] As previously stated, I do not believe the majority of Mr. Jalal’s evidence.

I do accept, he was the male in the videos without a shirt, that he waited in the north stairwell when Rick knocked on the door, that he entered the McGee’s apartment, and he went directly toward Ms. McGee and that the McGee’s knew him. These portions of Mr. Jalal’s evidence do not raise a reasonable doubt. Based on the evidence that is accepted am I convinced beyond a reasonable doubt that Mr. Jalal is guilty? [ 98 ] For this portion of the analysis, I turn to the credibility and reliability of the McGees’ evidence.

For the reasons below, I recognize some difficulties with the McGees’ evidence, however, I see the difficulties as minor and I conclude from the totality of the evidence that the Crown has proved Mr. Jalal’s guilt beyond a reasonable doubt. [ 99 ] The primary difficulty with the McGees’ evidence relates to identifying Mr. Jalal as the person who assaulted Mr. McGee. In this regard, Mr. McGee incorrectly identified Mr. Jalal in the surveillance video as the male wearing a white shirt. Similarly, Ms. McGee also described Mr. Jalal as wearing a white shirt. However, Ms. McGee also testified that she knew Mr.

Jalal and on the date of the assault that he was wearing medium-framed glasses and that his hair was in a pom-pom style ponytail. She also identified him in the surveillance video and she identified him in court. [ 100 ] In my view, Ms. McGee testifying that Mr. Jalal was wearing a white shirt, when he did not have a shirt on does not significantly detract from her reliability in identifying Mr. Jalal. My conclusion is not made in isolation, rather, I have considered the totality of Ms. McGee’s evidence including the minor inconsistencies and I find that I can rely on her identification evidence.

I say this because Mr. Jalal was known to her, moreover, Ms. McGee noted that he had a ponytail and glasses at the time of the assault. Significantly, this observation is confirmed by the surveillance video and it is significant given that Mr. Jalal was the only person in the apartment suite with this unique combination. [ 101 ] As for the other problems with Ms. McGee’s evidence, I do not find the errors identified by counsel to be significant. I accept Ms.

McGee’s explanation that her errors were due to the stress and trauma of the event, despite this, I do not accept that the events were so stressful that I cannot rely on the key portions of her evidence, particularly when those key portions are consistent with Mr. McGee or the video surveillance. [ 102 ] As for the inconsistencies between Mr. McGee and Ms. McGee, I do not find them to be significant and they do not undermine their credibility and reliability.

Given the speed of the events and the violence involved, I would expect there to be variations between the parties on minor issues such as, the order of entry, the precise location of the bat, and what each person was wearing. [ 103 ] Again, and despite some minor inconsistencies in her evidence, I found Ms. McGee to be a credible and reliable witness. She acknowledged the errors she made, she did not shy away from admitting she was afraid and traumatized, she readily admitted that her husband was addicted to crack cocaine and she did not try to embellish Mr.

Jalal’s actions when she testified that he made no psychical contact with her. [ 104 ] Lastly, I reject the suggestion that the police were notified to protect Mr. McGee from prosecution. In fact, calling the police would expose him to prosecution. [ 105 ] Similarly, I found Mr. McGee to be a credible and reliable witness. He was candid and forthcoming. He admitted his criminal record, he admitted his drug use, and he admitted having engaged in drug deliveries. Finally, the inconsistencies noted by counsel were minor and do not denigrate Mr. McGee’s reliability on key aspects of the assault. [ 106 ] In

summary, and based on the evidence that I accept, I am satisfied beyond a reasonable doubt that Mr. Jalal unlawfully entered the McGee’s apartment with the intention of assaulting Mr. McGee. Further, that he aided the others in assaulting Mr. McGee by trying to get the phone from Ms. McGee and finally, he struck Mr. McGee on the back of his neck with the fish bat. Mr. Kamzimbi [ 107 ] For consideration is whether of Constable McLachlan’s and Constable Obuck’s evidence satisfies me beyond a reasonable doubt that the black male in the surveillance videos and photographs is Mr. Kamzimbi.

On this issue, I have considered the officers’ testimony regarding their contact with Mr. Kamzimbi, their recollection of his appearance, the video and images in issue and the law related to recognition evidence: R. v. Panghali, [2010] BCSC 1710. I have also considered the quality and specifics of the videos and the photos. [ 108 ] The Crown argues that the recognition evidence proves beyond a reasonable doubt that Mr. Kamzimbi was the black male who entered the McGee’s apartment and assaulted Mr. McGee.

In support, the Crown points out the two officers who had extensive personal and a long-standing familiarity with Mr. Kamzimbi, recognized him and that the video and photographs relied on were clear and sufficient to make a positive identification.

[ 109 ] Counsel for Mr. Kamzimbi argues the evidence is insufficient to conclude beyond a reasonable doubt that Mr. Kamzimbi is the subject recognized by the officers in the surveillance videos and the photographs. Specifically, counsel points out the officers were inconsistent in their descriptions of how Mr. Kamzimbi’s appearance has changed between their memory of him and how he appeared in the surveillance materials. Counsel also argues the video evidence lacks sufficient quality and duration to conclusively identify Mr. Kamzimbi. [ 110 ] On the evidence, the officers’ familiarity with Mr.

Kamzimbi is without doubt and I have no difficulty in concluding that they can identify Mr. Kamzimbi in court and on the street. Despite this, identification on the street or in the courtroom is very different from identifying him from the photographs and videos that are exhibits in this case. I say this because; the photographs and videos in this case are less than ideal for identification purposes. Specifically, they do not capture the entirety of the subject’s face, their quality is lacking in light and crispness.

Moreover, there is no height reference, and there is no ability to determine the shape of the subject’s brow, head or jawline. [ 111 ] In considering the recognition evidence, it is noteworthy that Constable McLachlan testified that Mr. Kamzimbi’s appearance changed as he aged and it also changed between the year 2017 and his appearance in court. Specifically, he had grown 4 to 5 inches in height and his face had become much thicker. In contrast, Constable Obuck did not observe the changes referenced by Constable McLachlan. In fact, she testified that he had not changed significantly.

I do not know which officer is correct on the issue of physical changes and therefore I question the reliability of their evidence. Essentially, I would expect there to be some consistency between the officers on the issue of changes. [ 112 ] A further concern with the officers’ evidence is that both testified that Mr.

Kamzimbi was more muscular now than when they remembered him, and yet, I note the subject in the videos, particularly when viewed on the intercom video, appears to be skinny and does not appear to have a muscular build even in the slightest. [ 113 ] Finally, the reliability of the officers’ evidence is further diminished by the quality of the videos and the still photographs. As for the photographs, they do not capture the entirety of the subject’s face and the images are not always clear. I also observe that the pictures do not show the subject’s height, the shape of his brow or the shape of his head.

As for the videos, the quality varies, but it is noteworthy that the video at the intercom is slightly distorted and grainy with occasions when the images are overexposed. Finally, the video does not capture a complete clear image of the entirety of Mr. Kamzimbi’s face. [ 114 ] In

summary, I accept the subject shown in the videos, particularly at the intercom, strongly resembles Mr. Kamzimbi, and that the officers honestly believe it is him, however, the shortcomings noted undermine their claim that the person identified as Mr. Kamzimbi is in fact him. [ 115 ] For the reasons above and although I suspect that the person in the videos and photographs is Mr. Kamzimbi, there remains a doubt. Accordingly, the Crown has not proved the identity of Mr. Kamzimbi beyond a reasonable doubt and I find him not guilty. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia