R. v. Brown et al., 2013 ONCJ 785

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Brown et al. , 2013 ONCJ 785 DATE: 18 December 2013 COURT FILE No.: Newmarket 13-00471 BETWEEN: HER MAJESTY THE QUEEN — AND — TERVIL BROWN, DERRICK OSEI, RAYMOND SAAH, DAVONIE SENIOR Before Justice Joseph F. Kenkel Heard on December 5,6,9,10,13,18, 2013 Reasons for Committal released on December 18, 2013

Ms. C. Elmasry ..................................................................................... counsel for the Crown Mr. D. Munir ............................................................... counsel for the accused Tervil Brown Mr. G. Dorsz ................................................................ counsel for the accused Derrick Osei Mr. E. Ghebrai ......................................................... counsel for the accused Raymond Saah Mr. F.

Davoudi ........................................................ counsel for the accused Davonie Senior kenkel J.: Introduction [ 1 ] The complainant was awoken by a knock at his front door. He thought it was his uncle dropping by and he went downstairs and answered the door. Three masked men then forced their way into his house. The complainant saw one of them had a firearm. Those men were later joined by others. [ 2 ] The complainant was beaten while the robbers searched his house for money. He was then bound with duct tape and a bandana and taken from his house while still wearing only his underwear.

The robbers were taking the complainant to another location so that he could get them the money they were demanding. [ 3 ] The complainant’s girlfriend was able to escape the house during the home invasion. She fled without any clothing and apparently alerted a postman who was in the neighbourhood at the time. The complainant also attempted to get out of the moving car and he believes he saw a witness observe that. [ 4 ] The York Regional Police were called and they provided a fast and smart response.

An unmarked police car waiting on a major highway identified a suspect vehicle which was followed and then stopped at an intersection near the Sheridan Mall in Toronto. Occupants of the vehicle were removed at gunpoint. Two occupants fled but were arrested a short distance away. Inside the car police found the complainant still bound and in his underwear. They also located two firearms in the back seat area. The Evidence [ 5 ] This case is remarkable in that many of the events were captured on video. The complainant was a music producer and kept expensive equipment in his home.

He had a home video surveillance system that recorded the assailants approaching the house and showed them leaving with the bound and struggling complainant. The home video shows the complainant being stuffed into the suspects’ car while the driver waits and then shows the direction of flight. [ 6 ] By chance there was a CTV news helicopter in the area when the suspect vehicle was stopped by police. The helicopter video shows the circumstances of the takedown including the flight by two of the occupants of the vehicle. [ 7 ] Mr. Saah was the driver of the car that was used in the home invasion and abduction. Mr.

Osei was in the back driver’s side of that vehicle. A young person separately charged was found on the rear passenger side. [ 8 ] One occupant got out of the vehicle, pretended to move into a prone position on the ground, then got up and fled towards the mall. He was directly followed by PC Partridge. [ 9 ] Sheridan Mall internal video shows a suspect running through the mall with two police officers in close pursuit. As luck would have it an officer from Peel Regional police happened to be in that area at that time and joined in the pursuit.

The chase ended when Constable Doody of the Peel Regional police captured and arrested Mr. Senior. [ 10 ] Police also responded to a nearby apartment building in the direction of flight of the other suspect. A woman called saying a man had come to her door asking to use the phone. Toronto’s Emergency Task Force and York’s Emergency Response Unit both searched the building but did not find the remaining suspect. York detectives reviewed the building video and identified the suspect who had fled from arrest.

The building video shows that man moving about the building and repeatedly looking out the entrance without leaving. The detectives saw that the video did not show the suspect leaving the building so they took up surveillance outside. Later a maintenance worker notified police that there was a man trying to get out of the garbage room through a metal door. [ 11 ] York police arrested Mr. Brown as he was hanging out of a hole in the top corner of a metal door he’d pried back in the garbage area.

Analysis [ 12 ] There is direct evidence from the complainant as to the circumstances of the home invasion robbery, the use of a firearm and the abduction. [ 13 ] There is ample direct, circumstantial and video evidence upon which a properly instructed trier of fact could reasonably find that the persons in the vehicle where the complainant was found were all parties to a home invasion robbery and parties to the subsequent confinement and abduction all with firearms used.

[ 14 ] Mr. Saah and Mr. Osei were arrested at the vehicle. There is direct evidence, video evidence and circumstantial evidence upon which a properly instructed trier of fact could reasonably find that Mr. Brown was the person who fled the vehicle and was found hanging out the hole in the garage door of the apartment building. There is direct evidence, video evidence and circumstantial evidence upon which a properly instructed trier of fact could reasonably find that Mr. Senior was the person who fled from the vehicle, was pursued and then arrested by officers at Sheridan Mall. [ 15 ] Mr.

Dorsz submitted that the Crown has not proved abduction or kidnapping as alleged as the move to another location was suggested by the accused. The context of that suggestion though could reasonably be found to be one of duress. The robbers who had invaded the complainant’s home did not find the money they were looking for and as the complainant explained he feared he would be killed. He suggested going to another location to preserve his life hoping that help would intervene.

His resistance to entering the vehicle as shown in the video and his attempt to flee the vehicle as he described in his evidence all could reasonably be found to show the movement of the accused was not voluntary and amounts to abduction as alleged. The complainant’s release was dependent upon ransom by money. [ 16 ] Mr. Davouti submitted that there is no evidence showing that the firearms in the car were the ones used in the home invasion and abduction. He submits it’s possible other firearms were used that were taken by the two persons who fled the car and were disposed of during flight.

Given the direct evidence as to the use of a firearm and the circumstantial evidence I find that a properly instructed trier could reasonably find that the firearms found in the car were used in the home invasion and abduction. Conclusion [ 17 ] I find that the Crown has proved that there is sufficient evidence upon which a properly instructed trier of fact could reasonably find guilt on the following counts: 1. All four accuseds were parties to the use of firearms in the commission of robbery contrary to s.344(1)(a.1) 2.

That all four accuseds were parties to kidnapping with intent to hold the complainant against his will and did use firearms to accomplish that purpose contrary to s.279 (1.1)(a.1). 5. That Mr. Brown, Mr. Osei and Mr. Senior had their faces masked while committing indictable offences contrary to s.351(2). 7. That Mr. Brown and Mr. Senior did escape from lawful custody of a peace officer contrary to s.145(1)(a) [ 18 ] I agree the Crown has also proved on the same standard a kidnapping for ransom as described in s.279 (1)(

c) should the Crown wish to particularize the abduction in that manner in the Indictment but the count would otherwise duplicate the abduction on which the accused has been committed. [ 19 ] The accuseds will be discharged on the remaining counts. [ 20 ] All four accuseds are committed to stand trial in the Superior Court of Justice before a judge and jury. Released: December 18, 2013 Signed: “Justice Joseph F. Kenkel”