R. v. Saleh, 2017 ONCJ 450

ONTARIO COURT OF JUSTICE CITATION: R. v. Saleh , 2017 ONCJ 450 DATE: June 30, 2017 BETWEEN HER MAJESTY THE QUEEN — AND — MAHER SALEH Before Justice H. Borenstein Heard on April 24, 25 and June 14, 2017 Reasons for Judgment released on June 30, 2017 Ms. McIntyre.............................................................................................. counsel for the Crown Mr.

Alawi................................................................................................ counsel for Maher Saleh BORENSTEIN J.: [ 1 ] Maher Saleh is charged with possession of a weapon for a purpose dangerous to the public peace and carrying a concealed weapon. [ 2 ] There was a fight between two groups of young men at around 3:30 in the morning in the lobby of the Sheraton Centre Hotel in downtown Toronto.

It was captured on video. [ 3 ] The security staff attended and saw one male, allegedly the accused, stabbing or slashing another male with a knife. [ 4 ] The knife was variously described by witnesses in a specific and somewhat distinctive manner; red handle and big hook or curve at the tip of the blade. [ 5 ] The police were called and quickly attended. Numerous males were still on scene in the covered parking lot and driveway of the hotel. [ 6 ] Security officers pointed out the accused as the person with the knife.

He was detained by the police. [ 7 ] A pat down search was done by two officers before the accused was placed in the cruiser. Despite being told there was a knife, neither officer found a knife during the pat down search. [ 8 ] A video was played showing the accused in the back seat of the cruiser. It shows him squirming and moving extensively while in the back seat. It appeared as if he was trying to remove something. The victim of the stabbing did not cooperate with the police.

Given that, and given that no knife was found, the accused was released. [ 9 ] Once at the station, a search of the rear seat of the cruiser revealed a red handled folding knife with a hooked or curved tip. [ 10 ] I heard from several security guards and the officers who attended. I also saw a video of the incident, the video of the accused in the back seat of the cruiser and another video of a different accused detained in the back of that cruiser. I cannot see the faces of those involved in the fight on the video from the Sheraton Centre.

No defence was called. [ 11 ] It was conceded that it was the accused who was detained by the police at the Sheraton Centre and placed in the back of the cruiser.

[ 12 ] The issue is whether the Crown has proved beyond a reasonable doubt that the accused was the one with the knife. [ 13 ] Turning to the evidence more closely. William Ramsay [ 14 ] William Ramsay is the assistant security manager at the Sheraton Centre. He was supervising two contract security officers working that night. [ 15 ] At around 3:30 or 4 in the morning, he received a call about a fight in the lobby. [ 16 ] He and a colleague attended and saw two groups of young black men pushing and shoving each other.

They all appeared to be roughly 18-25 years old. [ 17 ] One male picked up a five foot lobby lamp and began swinging it at the other group. Ramsay’s colleague was able to grab the lamp from that male. [ 18 ] One group then ran to the elevators while the other remained in the lobby. One male in the lobby had a laceration to his head and was yelling that his IPhone was stolen. Security called EMS. [ 19 ] A lighter skinned black male then entered the lobby and a further confrontation began between this male and the ones who remained in the lobby. Two men began striking this male and he was thrown to the ground.

Ramsay and his colleague tried to pull this male out but Ramsay’s colleague yelled “knife”. Ramsay saw a male, allegedly the accused, stabbing and slashing at the male. Security backed away. Ramsay identified the accused in court as the male wielding the knife. The victim got up, stumbled and tried to run away but two men chased him kicking and punching him. Ramsay testified that the accused ran through the lobby holding a small silver bladed knife.

Security called the police advising that weapons were now present and someone was stabbed. [ 20 ] Ramsay lost sight of the accused for about a minute and a half and saw him again in the covered driveway of the Sheraton Centre. Staff kept the hotel doors closed. The men remained in the driveway. The police arrived within a couple of minutes. Ramsay pointed out the accused to the police and they took him into custody.

It is conceded that person was the accused. [ 21 ] The victim of the stabbing would not cooperate with the police and would not accept medical treatment. [ 22 ] In cross examination, Ramsay agreed he watched the security video before he made his notes. He agreed he only noted a generic description of the male without noting any facial features and that his description could apply to other males in the group. His notes indicated that the male with the knife was a black male with an afro, tall, slender wearing a hooded sweater.

However, Ramsay did testify that he pointed out the male with the knife to the police while that male was still on scene and that the police detained that male. [ 23 ] Ramsay did not see the handle of the knife. P.C. Bagchus [ 24 ] Constables Bagchus and Pascaris were partners that night. They received the call to attend the Sheraton Center. When they arrived, there was a group of about six males in the covered driveway area arguing or bantering. A security officer pointed out the accused and said he had a knife on him.

Bagchus detained the accused and did a pat down search of the accused’s pockets, waist band and up and down his legs but did not find a knife. P.C. Cardona arrived to assist. One of them also searched accused. Bagchus then went inside the lobby and saw a male collapsed on the floor. EMS attended. Bagchus then went to the 27 th floor with security to evict the other group. When Bagchus returned to the cruiser, the accused was gone. Pascaris told Bagchus that the accused was moving around a lot in the rear of the cruiser.

As a result of receiving that information, Bagchus watched the in car video and saw the same thing. That video was made an exhibit in this trial. As a result, Bagchus searched the back seat of the cruiser. Under that seat cushion was a red handled folding knife with a hooked tip. Bagchus had obtained the accused identity and went to the accused’s apartment the following day. The accused’s father answered the door. Bagchus asked to speak to Maher Saleh. Another son presented himself at the door with the accused’s name and date of birth.

Bagchus was not comfortable that that was he male from the night before so he left. He told his supervisor and he re-watched the in car video. Now he was sure it was not the right male. He went back to the apartment. The same older male answered the door and again presented the wrong male. Finally, the mother presented the accused who was then arrested.

I note this evidence but emphasize that this apparent deception at the door does not fall at the feet of the accused and will not form any part of my analysis. [ 25 ] Bagchus testified that, at the start of his shift, he or his partner would check the back seat of the cruiser for any objects left in the cruiser including under the rear seat cushion. He knows it was done and his notes indicate that it was done but he did not recall whether he or his partner checked the back seat. [ 26 ] There was only one other male placed in the rear of that cruiser that night.

That person was arrested for a break and enter and sat quietly in the back and was not shifting around. The Crown adduced the video of that detainee seated calmly and still in the back of the cruiser. P.C. Pascaris [ 27 ] P.C. Pascaris’ entire involvement occurred in the covered driveway of the Sheraton. When he arrived, he saw the group of males. A security guard said that the accused was in possession of a red handled knife. Pascaris did a pat down search of the accused but

did not find a knife. He searched the accused a second time within minutes because the accused was fidgety. He was satisfied with his search and did not find a knife. The accused was released at 5:45 am as the victim of the stabbing did not want to co-operate. [ 28 ] At the station, they again cleared the back seat and found a folded knife under the bench. The knife, which has a red handle and curved tip, was made an exhibit. [ 29 ] Pascaris was cross examined about the initial search of the cruiser. He did not specifically recall whether he or his partner searched the car.

He testified that he searched the car after the other detainee exited the cruiser but did not have an independent recollection of that either. [ 30 ] P.C. Pace testified but had nothing material to add. Mark Ducusin [ 31 ] Sheraton security officer Mark Ducusin testified. At around 4:30 in the morning, he was notified about a fight in the lobby and went to the lobby with Ramsay and two contract security officers. Ducusin saw the fight. As his colleague tried to intervene, Ducusin saw a male pull out a knife and slash toward another male. Ducusin warned his colleague about the knife and to back away.

The knife had a red handle and a silver hooked blade that was probably two to three inches long. He remembered the hook on the blade most distinctly and described it as a knife one would use to cut drywall. Ducusin was approximately five feet away when he made this observation. He also saw the male fold the knife and put it away. He thought he put it in his right pocket. When the police arrived, the accused was still outside the hotel in the covered driveway area. He identified the accused in court as the male he saw that night. I place no weight on the in dock identification for obvious reasons.

However, Ducusin testified that he pointed out the suspect with the knife to the police and they arrested and searched that male. It is conceded that it was the accused who was pointed out and arrested. He agreed that he did not mention the hooked tip of the knife in his police statement. [ 32 ] That was the evidence called in this case. [ 33 ] Has the Crown proved beyond a reasonable doubt that Saleh possessed the knife for a purpose dangerous to the public peace and concealed the knife?

The Crown submits it has and submits that the reasonable inference is that the various pat down searches done before the accused was placed in the cruiser missed the folded knife. [ 34 ] The defence submits the pat down searches ought to raise a reasonable doubt. Further, the defence submits that the Court should not draw any inferences from the accused’s movements in the back of the cruiser. He also points out the dangers of eye witness identification. Findings [ 35 ] I find the Crown has proven beyond a reasonable doubt that Saleh possessed and concealed that knife and placed it under the seat.

Further, given the circumstances at the Sheraton that night, it is clear that he possessed it for a purpose dangerous to the public peace. [ 36 ] While I do not rely on the in dock identification, the timing and the circumstances compel me to make that finding beyond any doubt. [ 37 ] The witnesses saw a male with a knife. They pointed out that male while he was still on scene to the police. The dangers associated with eye witness identification are lessened considerably given that timing. The witnesses need not note or describe the facial features when the person is still on scene, pointed out and apprehended.

Where witnesses see a man with a knife, point him out, where that male is placed in the rear of the cruiser, is seen on video trying to divest himself of something in the back of the cruiser, and then a knife is found under the very seat the male was seated, it strains credulity to believe there happened to already be a knife under that seat or that the other detainee placed the knife there. I would find beyond a doubt that it was same knife even if it had only been described as a knife.

But the fact that it was described by some as a folded knife, or red handled knife or a knife with a hooked tip, which describes the knife found, strengthens that inference. The description simply lends further proof to what has already been established. It is obvious that the officers patting down the accused missed the folded knife he had concealed somewhere, whether in his shoe or elsewhere. The video shows the accused actively doing something and, in the circumstances, I find that something is removing the knife. There is nothing in the evidence to suggest that the other detainee placed a knife there.

It would be a remarkable coincidence to be sure. Further, he sat in the back seat without much movement. Both officers testified that the back seat was cleared prior to their shift. While they did not independently recall which of the two partnered officers checked the seat, both were sure it was checked and noted the same. [ 38 ] In the end, based on the timing and the circumstances just mentioned, I am satisfied beyond a reasonable doubt on both counts Released: June 30, 2017 Signed: “Justice H. Borenstein”