R. v. C.(I.), 2011 ONCJ 205

WARNING THIS IS A PROCEEDING UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110.

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111.

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138.

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or

section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Brampton 09-1462Y DATE: April 14, 2011 Citation: R. v. C.(I.) , 2011 ONCJ 205 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — I.C. (A young person) Before Justice Richard H.K. Schwarzl Heard on August 16, 2010 and March 9, 2011 Reasons for Judgment released on April 14, 2011 Ms. Cynthia Nadler .................................................................................................. for the Crown Mr.

Paul Erskine.................................................................................................................. for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On April 27, 2009 Omar Mohamed (“the Complainant”) was attacked by three young men shortly before noon in front of a local high school in the city of Brampton . He was beaten then robbed at knife point. The Accused and two adults were arrested as a result of this occurrence. The Accused, who is being tried as a youth, was charged with Robbery, Weapons Dangerous and Breach of Recognizance.

The Accused has pled not guilty to each charge.

[2.] At trial, the Crown led evidence from the Complainant and four police officers. The defence called no evidence. At theconclusion of the evidence, the Breach of Recognizance charge was dismissed at the request of both counsel, leaving only theRobbery and Weapons Dangerous charges before the court. [3.] At all times I am cognizant of the presumption of I.C.’s innocence as well as the unshifting burden upon the Crown to provehis guilt beyond a reasonable doubt. In assessing the evidence I am mindful of, and apply, the principles set out by the Supreme Court ofCanada in numerous precedents including R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 and its progeny. [4.] The court may believe all, none or some of a witness' evidence. The trier of fact is entitled to accept parts of a witness'sevidence and reject other parts. Similarly, the trier may accord different weight to different parts of the evidence that it has accepted. [5.] The court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to the Accused's guilt. 2.0: ISSUES 2.1: The Robbery Charge [6.] With respect to the robbery charge, the issues raised are (

a) identification of the Accused and (

b) if the Accused is identifiedwhether he is a party to the offence. 2.2: The Weapons Dangerous Charge [7.] With respect to the Weapons Dangerous charge, the issue raised is whether the Accused ever possessed the knife seized bythe police at the scene. 3.0: FACTS 3.1: Omar Mohamed [8.] Omar Mohamed was born August 1, 1994 making him 14 years old at the time of this occurrence. He testified that on April27, 2009 sometime before the lunch hour he was walking in front of Chinguacousy Secondary School. He told the police he waswalking home from school at the time but in court he testified that he lied to the police.

He said that he had in fact skipped school andhad lied to the police because he did not want to get in trouble for truancy. [9.] Mohamed said that near the school he passed by a group of seven or eight boys, three of whom gave chase and attacked himtwice. Two of the attackers were black and the third was Indian. The first attack consisted of being punched and kicked, while thesecond attack included being searched and robbed at knife point.

Mohamed did not know any of the assailants and did not identify theAccused in Court. [10.] Mohamed gave the police the following descriptions of the three assailants: Assailant #1 [11.] The first attacker was black, short, had a “do-rag” on his head, no facial hair and was wearing long khaki shorts and a blackhoodie sweater. Assailant #2 [12.] The second attacker was also black, but taller than Assailant #1. He had long hair with a pony tail, and was wearing a tee shirt,shorts, and soccer shoes. Assailant #3

[ 13 .] The third attacker was Indian with short black hair, and wore a hoodie and a baseball hat. The Attacks [ 14 .] In the first attack Mohamed said that Assailant #1 punched him in the face while the other two were right behind him. He said that after being punched, he went to the ground at which point at least two of the assailants kicked him, but could not identify the kickers because he was covering his face to protect himself. As a result of this first attack, Mohamed suffered a swollen left eye with a cut underneath it as well as soreness near his right temple.

The nature and location of the injuries are confirmed by the photographs filed in court as exhibits. After being beaten, Mohamed got up and then tried to get away. [ 15 .] All three assailants followed Mohamed and attacked him again. This time, they told him to empty his pockets demanding to know if he had any money. He said that Assailant #2 was holding his arms while the other two searched him. Mohamed said that after being searched, Assailant #1 told Assailant #2 to take out his knife.

Assailant #2 pulled out a knife and told Mohamed, “If you try anything you will get hurt.” Mohamed described the knife as having a silver handle and a silver blade about three to four inches long. He gave no evidence that he saw any remarkable or unusual features of the knife. [ 16 .] When they didn't find any money, the assailants stole his jacket and backpack. Mohamed said Assailant #2 put a pair of white shoes into his backpack and then the group ran away with it as well as his jacket. Moments later, a passing police car stopped and the assailants dropped his jacket on the ground.

Shortly after more police arrived, Mohamed saw an officer carrying the knife he was attacked with. He also saw that Assailant #2 was still holding his backpack when the police intervened. 3.2: P.C. Jake Henderson [ 17 .] P.C. Jake Henderson interviewed the Complainant and the two adults arrestees, Patrick Bird and Anthony Rooplall, shortly after the incident. He had no dealings with the Accused. [ 18 .] Henderson described Patrick Bird as black, 5'7” to 5'8” tall, thin build with short or possibly shaved hair.

Bird was wearing a black tee shirt and khaki pants, which appeared to be regular pants rather than long shorts. [ 19 .] Henderson described Rooplall as south Asian (which I took to mean Indian), with a chin-strap beard and was wearing a white tee shirt, white socks and blue basketball pants. 3.3: P.C. Allan Dean [ 20 .] P.C. Allan Dean was the first officer involved. While on routine patrol, he was flagged down by the Complainant near Chinguacousy high school.

The Complainant told him that he had just been beaten and robbed of his backpack and jacket while pointing out a group of three young men who were on the other side of the road. Dean noticed Mohamed had a swollen eye and a scraped cheek. [ 21 .] Dean saw the three men standing about thirty feet away from his cruiser. Each was in close proximity to one another and the Complainant's jacket was at their feet. Although there were other people in the area, none appeared to Dean to be associated with this incident. Dean immediately walked up to the group and arrested all of them for robbery.

He did not see anyone hand anything between them. Given that there were three suspects Dean called for assistance which arrived within minutes. [ 22 .] On arresting the Accused, Dean saw that he was carrying the Complainant's backpack. He searched it and found a pair of black and white size 13 Nike Air Jordan shoes inside. [ 23 .] P.C. Dean then focussed his attention on Rooplall while other officers dealt with Bird and the Accused. Another officer, P.C. Cook, pointed out a knife on the ground near Rooplall, which Dean then seized. The knife, filed as Exhibit #11, is gun metal or silver- ish in colour.

Its blade folds into the body, each of which is about four inches long. The knife handle has a wave-like shape and contains perforations, or holes, through much of its length. Only the blade and the head of the handle can be seen while the knife is held in one's hand. 3.4: P.C. Adam Cook

[ 24 .] P.C. Adam Cook responded to P.C. Dean’s call for assistance. When he arrived on scene, he noticed all three suspects standing in close proximity to each other near P.C. Dean’s cruiser. [ 25 .] Cook approached the Accused who identified himself to the officer. Cook observed that the Accused was about 6’5” tall, with a large build weighing approximately 220 pounds. He noticed the Accused had an afro haircut and was wearing a black tee shirt, white gym shorts with blue trim, and red and black soccer shoes.

Nothing of relevance was found on the Accused when Cook searched him. [ 26 .] After placing the Accused in his cruiser, P.C. Cook noticed that while P.C. Dean was searching Anthony Rooplall, Rooplall dropped what turned out to be a knife from his left hand. Cook picked it up from the ground near Rooplall’s foot and gave the knife to P.C. Dean. 3.5: P.C. Justin Davis [ 27 .] P.C. Justin Davis attended the scene to assist P.C. Dean. When he arrived, other officers were already there.

Davis dealt with Anthony Rooplall whom he described as Guyanese of south Asian descent, 5’5” tall, 140 pounds, short black hair, thick black beard, and wearing a diamond ear stud. 3.6: P.C. David Dawe [ 28 .] P.C. David Dawe was a detective who was working at the station to which the suspects were brought following their arrests. He lodged into police custody a number of seized items including: • the knife picked up by P.C. Cook while P.C.

Dean was searching Anthony Rooplall; • Mohamed Omar’s backpack which was seized from the Accused; • the soccer shoes worn by the Accused on his arrest; and • the running shoes found inside the Complainant’s backpack. 4.0: ISSUES AND ANALYSIS RE THE ROBBERY CHARGE 4.1 Has the identity of the Accused been established beyond a reasonable doubt? 4.1.2: Position of the Defence [ 29 .] The Defence submits that there is a reasonable doubt that the Accused was one of the assailants. It was submitted that the Complainant’s testimony is unreliable because (

a) he said in court that he didn’t want to testify and (

b) he admitted to lying to the police about his activities leading up to the incident. The Defence further submits the Complainant did not identify the Accused directly. 4.1.3: Position of the Crown [ 30 .] The Crown submits that given the totality of the evidence, identification of the Accused has been proven beyond a reasonable doubt. 4.1.4: Analysis [ 31 .] There is no direct evidence that the Accused was involved. However, the totality of the circumstantial evidence overwhelmingly proves that he was. [ 32 .] With respect to Omar Mohamed, I found him to be a wholly credible and reliable witness.

I discount his lie to the police about coming from school. It was understandable given his admission in court that he didn’t want to get into trouble for skipping school. He was 14 years old and being worried about being truant reasonably explains his lie to the police. The Defence criticized Mohamed’s lack of specificity in describing the knife insofar as he did not describe its curvaceous and perforated handle.

Given that such details would be difficult if not impossible to see while the knife is being held in one’s hand, I give no stock to this submission. [ 33 .] The fact that Mohamed did not want to testify does not impinge upon his reliability as a witness. Despite not wanting to, he

did indeed testify. He adopted his video statement made shortly after the events when his memory was fresh. He was thoroughly and meaningfully cross-examined. Mohamed presented himself as guileless and without any animosity. He gave his testimony in a straight forward and fair manner. He was internally consistent and his evidence was consistent with that given by the police officers. There was no evidence that materially contradicted anything he said. [ 34 .] There were three attackers: one Indian and two black. P.C. Dean drove by within moments of the conclusion of the attacks. P.C.

Dean said that the Accused was in the immediate area with Bird and Rooplall and that the Accused was holding the Complainant’s backpack. [ 35 .] P.C. Cook described the Accused as a tall, large, black person wearing soccer shoes and carrying the Complainant’s backpack. Cook’s description is nearly identical to Mohamed’s. When the shoes made exhibits are compared, the soccer shoes the Accused was wearing when arrested are the same size as the pair of shoes placed into the Complainant’s backpack.

The inexorable conclusion is that the Nike shoes inside Mohamed’s backpack belong to the Accused. [ 36 .] Given the unique appearance of each of the three assailants, the proximity of the Accused in time and place to the offences, and his possession of the Complainant’s backpack there is no doubt that Patrick Bird is Assailant #1, the Accused is Assailant #2, and that Rooplall is Assailant #3 as described by Mohamed and confirmed by the police witnesses. [ 37 .] Based on the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that the Accused was one of the three men present during the attacks upon Omar Mohamed on April 27, 2009. 4.2: Was the Accused a party to the offence of robbery? 4.2.1: Position of the Defence [ 38 .] The Defence submits that the mere presence of the Accused is insufficient to attach criminal liability to him.

The Defence submits that it was Bird who punched the Complainant. Further, it is submitted that if the Accused was one of those who beat Mohamed, one would expect further and more serious injuries given the large size of the Accused. Lastly, the Defence submits that there is a reasonable doubt that the Accused (

a) possessed the knife and (

b) that he knew either of the other two assailants had a knife. 4.2.2: Position of the Crown [ 39 .] The Crown submits that the Accused was at all times an active participant in the beating, pursuit, and robbing of the Complainant. The Crown submits that the Accused held the knife to the Complainant and threatened him with it. In the alternative, the Crown submits that if there is a reasonable doubt that the Accused held the knife, he was nevertheless a party to the offence. 4.2.3: Analysis [ 40 .]

Section 21of the Criminal Code states: 21.

(1) Every one is a party to an offence who: (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. 21.

(2) Where two or more persons form a common intention to carry out an unlawful purpose and assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[41.] Mere presence is not sufficient. In order to be found guilty, there must proof beyond a reasonable doubt that the Accusedencouraged the principal, did something to facilitate the offence, and knew that an offence was being committed: R. v. Dunlop andSylvester (1979), (SCC), 47 C.C.C. (2d) 93 (S.C.C.). As far as intention in common is concerned, this phrase means nomore than that two (or more) persons must have in mind the same unlawful purpose.

The common intention may not be formed orarticulated in advance of the action, but may arise at the instant of the offence being committed, the mutual intention to pursue unlawfulpurpose and to assist each other therein being formed at the very moment of carrying it out: R. v. Vang (1999), (ONCA), 132 C.C.C. (3d) 32 (Ont. C.A.) [42.] Although there were two attacks, first a beating then a robbery, together they form a single, ongoing transaction and offence.

They involved the same people in the same time and location and were only interrupted by the Complainant’s efforts to leave. [43.] With respect to the first attack Bird, Rooplall, and the Accused were all intimately involved even though it was Patrick Birdwho punched the Complainant in the face, thereby causing the injury to Mohamed’s eye. When the Complainant went to the ground, hesaid at least two of the three assailants kicked him, but he could not tell which two or possibly more it was.

Given Mohamed’suncertainty as to the number and identity of the kickers, I am left in a state of reasonable doubt that this Accused was kicking OmarMohamed during the initial beating. [44.] With respect to the second attack, the Accused was part of the pack of three that pursued and pounced upon the Complainant. In addition to his participation in the hunt, there are three other facts linking the Accused to the robbery. The first is that on instructionsfrom Bird, the Accused produced a knife and threatened Mohamed with it.

The second is that the Accused was holding the Complainantby his arms against a fence while Bird and Rooplall searched him. The third is that the Accused was found by the police to be inpossession of the Complainant’s backpack with his own property in it shortly after the offence. [45.] The Defence placed great emphasis on the fact that the knife seized by the police came from Rooplall shortly after the policearrived, thereby potentially casting doubt that the Accused ever possessed it. This evidence does not raise a reasonable doubt in my mindbecause: (

a) it is clear from all the evidence that all three assailants were working in concert throughout; (

b) the uncontradicted evidence is that Bird instructed the Accused to take it out; (

c) the Accused told the Complainant “If you try anything, you will get hurt”; and (

d) given that there was time for the Accused to transfer his shoes into the Complainant’s backpack before the police arrived, there wasalso sufficient time for the Accused to transfer the knife to Rooplall. I am well satisfied that the Accused possessed the knife and threatened Mohamed with it.

The crown has proven beyond a reasonabledoubt that the Accused actually committed the crime of robbing Omar Mohamed jointly with Bird and Rooplall. [46.] Accordingly, I find the Accused guilty of robbery. 5.0: ISSUES AND ANALYSIS RE THE WEAPONS DANGEROUS CHARGE [47.] The sole issue with respect to the Weapons Dangerous charge is whether it has been proven beyond a reasonable doubt that theAccused was in possession of the knife while Mohamed was being robbed. [48.] In my analysis of the Robbery charge, I found as a fact that the Accused was in possession of the knife and used it during thecourse of a robbery committed by all three assailants.

At some point prior to the arrival of the police, the Accused gave it to Rooplall. [49.] Given this factual finding, I am satisfied that the Crown has proven beyond a reasonable doubt that the Accused was inpossession of the knife for a purpose dangerous to the public peace when he used it to commit the robbery offence.

[50.] Accordingly, I find the Accused guilty of Weapons Dangerous. 6.0: CONCLUSION [51.] For the reasons set out herein, the Accused is found guilty of Robbery contrary to

section 344 of the Criminal Code and he isalso found guilty of Weapons Dangerous, contrary to

section 88 of the Criminal Code. [52.] Pursuant to the principles set out in R. v. Kienapple (1975), (SCC), 15 C.C.C. (2d) 524 (S.C.C.), it is my viewthe Accused cannot be convicted of both offences as they arise out of the same criminal transaction. Subject to any further submissions,a conviction will be registered on the Robbery offence and a judicial stay will be imposed on the Weapons Dangerous offence. Released: Thursday, April 14, 2011 _____________________________________ Richard H.K. Schwarzl Justice of the Ontario Court of Justice