This week’s top three summaries: R v Barton, 2021 ONCA 451: #Charter 24(2) connection, R v Macfie, 2021 SKQB 151: #impaired RPG, and R v Ismail, 2021 ONSC 4426: #identification & circumstantial evidence
R v Barton, 2021 ONCA 451
[June 23, 2021] Charter s.24(2) – Connection of Violations to Evidence Seized [K. Feldman, B.W. Miller, David M. Paciocco JJ.A.]
AUTHOR’S NOTE: A connection between a Charter violation and evidence sought to be excluded does not need to be directly causal. It can also be contextual or temporal. Factually, this case makes this point better than most. As a step in getting warrantless entry into Mr. Barton’s apartment, police moved a planter in the hallway. Within the planter they then found a handgun. The Court of Appeal agreed with the Appellant that the trial judge made an error in determining there was insufficient connection between the warrantless entry and the discovery of the gun to warrant exclusion.
Facts
[1] Zachary Barton was convicted by a jury of firearms-related offences. During a warrantless search, police found a semi-automatic handgun inside a planter located in a common hallway outside Mr. Barton’s apartment. The next day, while executing a search warrant, police found ammunition for the firearm and a bulletproof vest inside Mr. Barton’s apartment.
[2] Mr. Barton appeals his convictions. He contends that the trial judge erred in concluding the semi-automatic handgun was not “obtained in a manner that infringed or denied” his rights under the Canadian Charter of Rights and Freedoms, given the causal, contextual, and temporal links he alleges between the search of the planter and what was conceded by the Crown to be unconstitutional police conduct in seeking to search his apartment without a warrant. In the alternative, Mr. Barton argues that the trial judge erred in finding that he did not have a reasonable expectation of privacy in the hallway or the planter.
Causal Connection under s.24(2)
[4] Police officers discovered the semi-automatic handgun as a result of a step they had taken to gain unlawful warrantless entry into Mr. Barton’s apartment. Specifically, they moved the planter in the hallway to assist their efforts in breaching the front door. After moving the planter, the officers observed a string protruding from its cylinder. Inferring that the string might be attached to a key that would give them warrantless entry to Mr. Barton’s apartment, the officers pulled the string which led to a bag secreted in the planter. They opened the bag and discovered the semi-automatic handgun inside.
[5] Since the semi-automatic handgun was discovered as a result of a step officers had taken to gain unlawful entry to the apartment, the discovery is causally connected to the Charter breach: see, R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at paras. 33-35. The trial judge erred in finding otherwise.
Contextual and temporal connections under s.24(2)
[6] The trial judge also erred in drawing the conclusion on these facts that the contextual and temporal connections between the unlawful entry of the apartment and the discovery of the semi-automatic handgun were remote and attenuated. We see no basis in the evidence for these holdings.
[7] We are therefore persuaded that the semi-automatic handgun was unconstitutionally obtained. As a result, reference to the discovery of the semi-automatic handgun must be excised from the information to obtain the search warrant.
New Trial Needed
[9] A new trial is therefore required to determine whether excision of the discovery of the semi-automatic handgun from the warrant information will lead to a finding that the later warranted search was unconstitutional. This finding could, in turn, have an impact in deciding whether to exclude the semi-automatic handgun itself, since additional Charter breaches occurring during the same investigation can enhance the seriousness of each of the Charter breaches: see e.g., R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 48.
Conclusion
[12] Accordingly, we set aside Mr. Barton’s convictions and order a retrial on all charges.
R v Macfie, 2021 SKQB 151
[May 25, 2021] Impaired and 80 or Over – Charter s.9 – RPG for Impaired [Popescul C.J.Q.B.]
AUTHOR’S NOTE: Reasonable grounds for an arrest for Impaired operation requires an officer to believe, on reasonable grounds, that a person is in care and control of a vehicle (or was) and their ability to drive is impaired to any degree. Many cases start with the police finding a person sleeping in their car who appears groggy and has the smell of alcohol on their breath. This decision confirms in a summary conviction level decision that many of these observations are normal for a person just awoken and do not speak to their level of impairment.
Introduction and Background
[1] This is a summary conviction appeal brought by the Crown following a trial in Provincial Court. The respondent, James Ross MacFie [Mr. MacFie] or [the respondent], was charged with having care or control of a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) (since rep) of the Criminal Code, RSC 1985, c C‑46, and having care or control of a motor vehicle while his blood alcohol level exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) (since rep) of the Criminal Code. The charges arose after an off-duty member of the Royal Canadian Mounted Police came across Mr. MacFie apparently asleep or passed out in his vehicle at 4:40 a.m. in the parking lot of a grocery store in Birch Hills, Saskatchewan.
[3] The learned trial judge [trial judge] concluded, after hearing evidence within a voir dire that there were Charter breaches and that all the Crown’s evidence from the time the Charter breaches occurred must be excluded. Without its crucial evidence, the Crown was unable to establish the essential elements of either count and an acquittal on both counts inevitably followed.
[5] The Crown appeals the acquittal on the s. 253(1)(b) charge (exceed the legal limit) on the basis that there were no Charter breaches and, if there were, the evidence ought not to have been excluded pursuant to s. 24(2). The Crown seeks an order that sets aside the acquittal and requests that a conviction be entered and the matter remitted back to the trial judge for sentencing. In the alternative, it requests that the acquittal be set aside and that the matter be returned to the Provincial Court for a new trial.
[6] At approximately 4:40 a.m. on June 24, 2018, Cst. Keven Carreau [Cst. Carreau], a member of the RCMP, was on his way home after completing his shift. As he drove through the Village of Birch Hills he noticed a truck in the parking lot of a grocery store. The truck was parked oddly in that it was perpendicular to the designated parking spots. This piqued his interest. He wondered if there might be a break and enter in progress.
[7] Cst. Carreau approached the truck and noticed that there was a single male slouched forward towards the steering wheel. Cst. Carreau became concerned that the occupant, subsequently identified as the respondent, may not be breathing or was having some type of a medical issue.
[8] Upon closer examination, Cst. Carreau noted the following:
- the respondent appeared to be sleeping or passed out
- the respondent was in the driver’s seat, slouched forward towards the steering wheel
- the respondent had an unlit cigarette in his hand
- there was an open bottle of beer on the console next to the respondent
- the vehicle was running with the keys in the ignition.
[9] As a result of these observations, Cst. Carreau thought that the respondent might be impaired. He then aroused the respondent and made the following, additional observations:
- within the first few seconds of being awoken, the respondent appeared confused and did not appear to know what was going on
- the respondent had very intense bloodshot eyes which Cst. Carreau described as “the worst I’ve seen so far”
- the respondent had a strong odour of liquor coming from his breath
- the respondent had “a droopy face”, meaning what a person’s face looks like when they consume alcohol such that the muscles of the face become a bit looser
- the respondent told Cst. Carreau that he had been taking a nap; the respondent’s speech was very slurred when he said these words.
[10] Based upon the above observations, Cst. Carreau concluded that Mr. MacFie was impaired by alcohol. He then placed Mr. MacFie under arrest. Cst. Carreau then assisted Mr. MacFie out of his truck and into the police vehicle “as he had a hard time moving around”.
[13] Upon arrival at the Prince Albert detachment Cst. Carreau assisted Mr. MacFie in placing a call to the lawyer of his choice. Upon dialing the number, the answering machine of the lawyer was reached. This was not surprising since the call was made to the law office and it was approximately 5:30 a.m. A message was left on the answering machine requesting the lawyer call the Prince Albert RCMP detachment. Cst. Carreau then asked Mr. MacFie whether he wanted to call someone else. According to Cst. Carreau’s testimony, “… Mr. MacFie advised me that, no, he just wanted to talk to them”.
[14] No one from the law firm phoned back. After waiting the requisite observation period, two breathalyzer tests were administered, both of which resulted in readings of 130 milligrams of alcohol in 100 millilitres of blood—amounts that exceed the legal limit.
[15] At trial, the defence argued, among other things, that the Charter rights of Mr. MacFie were infringed. The trial judge agreed. In particular, the trial judge found that,
(a) The police officer had arbitrarily detained/arrested Mr. MacFie contrary to s. 9 of the Charter because, although he honestly believed that he had reasonable and probable grounds to detain and make the breathalyzer demand, he did not have objectively sustainable grounds for this belief; and
(b) The police officer had infringed Mr. MacFie’s right to counsel contrary to s. 10(b) because he did not fulfill the informational and implementational obligation as contemplated in R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236.
[16] As a result of these breaches, the trial judge then embarked on a s. 24(2) analysis, ultimately concluding that all evidence obtained subsequent to the breaches should be excluded
Analysis: Reasonable and Probable Grounds
[21] The requirement for the Crown to establish reasonable and probable grounds as a prerequisite for a breathalyzer demand and an arrest is well established. In R v Gunn, 2012 SKCA 80, 291 CCC (3d) 265, Caldwell J.A., succinctly and clearly described the process and considerations as follows:
7 A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” the individual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that belief must be rationally sustainable on an objective basis (see: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours.
8 Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd).
9 When determining whether the standard of “reasonable grounds to believe” has been met, it is important to keep in mind that a police officer need only believe an individual’s ability to drive is slightly impaired. This follows on the ratio in R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, aff’d 1994 CanLII 94 (SCC), [1993] S.C.C.A. No. 90, [1994] 2 S.C.R. 478n, where the Ontario Court of Appeal held that, for the purposes of s. 253(1)(a) of the Criminal Code, an impaired ability to operate a vehicle may be established where the Crown proves any degree of impairment from slight to great. As such, the precondition to an officer’s authority to make a breath-demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual’s ability to drive is even slightly impaired by the consumption of alcohol (see: R. v. Bush, at para. 48).
10 Given the standard to be met, any inference useful to a police officer when attempting to satisfy it must logically tend to support either (a) a belief that the individual has driven within the preceding three hours, or (b) a belief that the individual’s ability to operate a vehicle is impaired or that the individual is “over .08”. The fact an individual has operated a motor vehicle is, usually, readily established on the evidence without recourse to inferences of fact. However, an impairment assessment necessarily calls for the officer to draw one or more inferences from his or her own observations and the surrounding circumstances. Where the reasonableness of the officer’s belief is challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objective basis.
[22] In this case, the trial judge found that Cst. Carreau had made an unlawful arrest, contrary to s. 9 of the Charter, because he did not have reasonable and probable grounds to make the breath demand. Although the officer had a subjective belief, the trial judge found that the objective standard had not been met. The trial judge acknowledged that the officer had a “reasonable suspicion”, which would justify the detention and administration of a roadside screening device, but fell short of the somewhat higher threshold of reasonable and probable grounds.
[23] While it is clear that the circumstances that presented themselves to the officer most definitely raise a suspicion that comes close to reaching the reasonable and probable grounds threshold, I am unable to conclude that the trial judge, based on the reasons he articulated fell into legal error—especially when taking into account the deference owed to him as the trier of fact.
[24] Essentially, the trial judge concluded that although there was obviously some undisputable evidence of alcohol consumption, the evidence fell short of objective factors sufficient to establish reasonable and probable grounds. The trial judge identified that the Crown had failed to lead evidence of any motor impairment—except for the initial slurring when Mr. MacFie was awoken—a circumstance that was readily acknowledged as an ambivalent circumstance that could be explained by the abrupt arousal from a sleep. The trial judge noted that there was no further evidence led by the Crown in relation to slurring, other than upon being awoken. The trial judge summed it up by noting that the totality of sleeping with an unlit cigarette in his hand, very bloodshot eyes, the smell of alcohol, manner of parking and initial slurring upon arousal, did not, in these circumstances, amount to reasonable and probable grounds because they were not capable of supporting the officer’s belief that Mr. MacFie had driven while impaired or over the legal limit.
[25] The trial judge suggested in his reasons that there may have been more that the officer could have done by way of observation and articulation in order to meet a standard capable of supporting his subjective belief of “reasonable grounds”. This is a fair observation. Care must be taken both at the investigation stage and at trial to ensure that the full details of what led to the subjective belief are spelled out fully. Failure to do so will often lead to a result where the trial judge, as was the case here, was unable to arrive at the conclusion advanced by the Crown. Detailed observations and the articulation of those detailed observations are crucially important.
[27] Here, I am unable to conclude that the judge committed a legal error such that appellate interference is justified.
[28] Similarly, and affording the requisite deference to the trial judge on his s. 24(2) analysis, there is no justifiable basis to interfere with his conclusion and analysis with regard to the Charter remedy. He was alive to the issues and applied the legal principles appropriately.
[30] The Crown’s appeal is dismissed.
R v Ismail, 2021 ONSC 4426
[June 21, 2021] Recognition Identification and Circumstantial Evidence [K. Phillips J.]
AUTHOR’S NOTE: The difficulties with stranger identification are well known, but recognition cases can be very similar in nature depending on the nature of the incident and ability to observe. Here, a witness to a murder thought he recognised a neighbour as the shooter. The shooting occurred quickly and in poor lighting conditions. Other evidence suggested that the witness could not distinguish between the accused and his brothers who lived together. This case provides a good overview of the law of identification evidence and applies it to a case of recognition as opposed to stranger identification. It’s a handy case to have in answer to the suggestion that somehow the frailties of ID evidence don’t apply or are attenuated when recognition evidence is considered.
Overview
[1] Idres Ismail is charged with murdering Mouhamed Serhan on May 27th, 2019.
[2] That night, Mr. Serhan was standing with two friends on the edge of a parking lot in a housing project on Heatherington Road. Two young black men approached. One or both said “what’s up…what’s up” before one of them immediately produced a handgun and killed Mr. Serhan with two shots to the torso fired from point-blank range.
[3] One of Mr. Serhan’s friends lied to this court about even being there that night. This leaves the other, Mr. Antoine Boutros, as the foundation of the Crown’s case.
[4] All agree that the principal issue is identification. Antoine Boutros testified that in the 3 to 5 stressful seconds surrounding the event he, despite the darkness, recognized the shooter as one of the Somali brothers who lived across the courtyard from him. In addition, the Crown has tendered evidence from Mr. Ismail’s cell phone, which shows his presence at the crime scene at the material time, as well as some communications and evidence of decisions made by him afterward which the Crown argues are suggestive of consciousness of guilt.
Eye-Witness Identification
[6] Cases that turn on the issue of identification are notorious contributors to the disastrous phenomenon of wrongful conviction. The dangers of eyewitness identification evidence and the risk of miscarriages of justice are well known. The concern, generally, is one of reliability, as opposed to credibility of the eyewitness. There is a real risk of honest but mistaken identifications by well-meaning witnesses. The Court of Appeal for Ontario discussed this at some length in R. v. Jack, 2013 ONCA 80, at paras. 13-14.
[7] The trier of fact must critically examine all the circumstances of the identification evidence. The areas of concern are numerous. I can do no better that Hill J., who set out a non-exhaustive list of things to consider in R. v. Gonsalves, 2008 CanLII 17559 (ON SC), [2008] OJ No. 2711, at para. 39:
Our experience with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability. Judicially created checklists, based on long experience with the inherent dangers of eyewitness identification evidence, assist in assessment of the circumstances of a specific identification …. Was the suspect a complete stranger or known to the witness? Was the opportunity to see the suspect a fleeting glimpse or something more substantial? Was the setting in the darkness of night or in well-illuminated conditions? Was the sighting by the witness in circumstances of stress …? Did the witness commit the description to writing or report the description to the police in a timely way? Is the witness’ description general, generic or vague or is there a description of detail including distinctive features of the suspect and his or her clothing ….? Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness’ initial sighting of the suspect and the rendering of the descriptive account to the police or the court? Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness’ description of the suspect failed to include mention of a distinctive feature of the accused? Is the eyewitness identification unconfirmed?
[8] Arguably, the most dangerous type of identifications are those involving a very limited opportunity to observe the suspect. As stated in R. v. Pelletier, 2012 ONCA 566, at para. 90:
First, countless authorities acknowledge the inherent frailties of eyewitness identification evidence, especially in cases that involve fleeting glimpses of unfamiliar persons in stressful circumstances.
[9] Also, it has been noted both in the recommendations made by the Sophonow Commission, and in the myriad of cases that have cited the Commission’s findings, there is a very weak link between the confidence of a witness and their accuracy: see R. v. Hanemaayer, 2008 ONCA 580, at paras. 21-22.
[10] I further observe that the risks inherent in eyewitness identification are only amplified where there is a cross racial identification, in particular where the description is generic and could describe any number of people. This is relevant here as Mr. Boutros is endeavouring to identify a black man when he himself is not black. This subject was discussed in R. v. Bao, 2019 ONCA 458, at paras. 21-23:
P.C. Storozuk’s description of the driver was also bereft of any detail – “Asian male, dark hair.” As defence counsel at trial (not Ms. Caterina) submitted, this could describe any Asian male. It may even have been an apt description of the men who were found hiding in the bushes near the crashed minivan. Importantly, this description was not relayed to the dispatcher by P.C. Storozuk as the events unfolded; it was recorded in his notebook after he had viewed the appellant’s OHIP card. The lack of any meaningful description of the driver seriously undermined P.C. Storozuk’s identification evidence. As this court noted in Gough, at para. 37, generic descriptions are of little assistance: see also R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 16; R. v. Ellis, 2008 ONCA 77, at paras. 5, 8.
P.C. Storozuk was also unable to identify any clothing that might have been visible from his vantage point, not even the colour of the clothing that the driver was wearing on the upper part of his body.
There was another need for caution on the part of the trial judge – this was a case of cross-racial identification: see R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610; R. v. Richards (2004), 2004 CanLII 39047(ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32; and R. v. Mey, 2011 ONCA 288, 280 O.A.C. 319, at para. 35. The trial judge included this feature in his reference to the inherent frailties of identification evidence generally. However, he never really grappled with this feature in the context of this case. This was a serious issue, especially in light of P.C. Storozuk’s generic description.
[11] I must always keep in mind that despite the superficial appeal of an “I was there, I know what I saw, I saw him” witness, eyewitness identification is nothing more than opinion evidence. The job of the trier of fact is to assess the circumstances underlying that opinion to determine if it is supported and trustworthy. A mere statement that “that is the man” alone is an unsafe foundation for a conviction. Our appellate Courts have been warning of the problem with this type of bald assertion of identification for over 70 years. The British Columbia Court of Appeal stated in R. v. Browne and Angus, [1951] BCJ No. 88, 1951 CanLII 393 (B.C.C.A.), at paras. 15-16:
A positive statement “that is the man”, when rationalized, is found to be an opinion and not a statement of single fact. All a witness can say is, that because of this or that he remembers about a person, he is of the opinion that person is “the man”. A witness recognizes a person because of a certain personality that person has acquired in the eyes of the witness, which, when associated with something in the mind of the witness, causes the latter to remember that person in a way the witness does not remember any other person.
Unless the witness is able to testify with confidence what characteristics and what “something” has stirred and clarified his memory or recognition, then an identification confined to “that is the man”, standing by itself, cannot be more than a vague general description and is untrustworthy in any sphere of life where certitude is essential.
[12] The same was repeated by the Court of Appeal for Ontario a year later in R. v. Smith, 1952 CanLII 116 (ON CA), [1952] O.R. 432:
If the identification of an accused depends upon unreliable and shadowy mental operations, without reference to any characteristic which can be described by the witness, and he is totally unable to testify what impression moved his senses or stirred and clarified his meaning, such identification, unsupported and alone, amounts to little more than speculative opinion or unsubstantial conjecture, and at its strongest is a most insecure basis upon which to found that abiding and moral assurance of guilt necessary to eliminate reasonable doubt.
[13] This has been affirmed in countless cases in the years since. In short, a generic description that could fit possibly thousands of individuals and does not allow the trier of fact to distinguish between them will carry little weight: R. v. Foster, 2008 CanLII 8419, at para. 40.
[14] The fact that an eyewitness knew the suspect does not alleviate the concerns of relying on eyewitness evidence, particularly where there is limited opportunity to observe the assailant. In other words, the fact that a witness invokes recognition testimony in identifying a suspect should not in any way relieve the trial judge from their responsibility to treat that evidence with caution. The Court of Appeal for Ontario in Chafe has recently affirmed, relying on its earlier decision in Oliffe, that recognition evidence is a form of identification evidence, and that the same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. In R. v. Chafe, 2019 ONCA 113, at paras. 31-32, the Court writes as follows:
With respect to recognition evidence, this court said in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 38:
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
It is crucial to remember, though, that recognition evidence is a form of identification evidence. The same level of assessment of the evidence must apply. Continuing on in Olliffe, at para. 39:
It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
[15] Even where the witness claims to have a prior relationship or acquaintance with the suspect, the quality of the opportunity to observe as well as conflicting evidence are still relevant to the reliability of the identification: R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A), at para. 27.
The Evidence of Antoine Boutros
[17] On May 27, 2019 at about 10:40 p.m. he was standing on a sidewalk near one of the parking lots with Mr. Serhan and Ahmed Hassan, otherwise known as Big Bird. The trio were socializing in an ordinary way. Mr. Boutros had his dog with him. A car pulled up to the curb a short distance away. No one paid it any mind. Mr. Boutros remembers that two men approached. While he is not sure, he thinks one or maybe both of them said “what’s up…what’s up”. Then, the shooting happened, and Mr. Serhan lay dead.
[18] Mr. Boutros’s evidence is that he recognized the shooter. It was one of the brothers from the Somalian family that had moved into the unit across from his place about two years before. Mr. Boutros’s family’s front door faced the other family’s front door across an unobstructed lawn over a distance of about 45 feet. While he had never interacted with any of them, he was sure that the shooter was one of the young men from that dwelling.
[19] Police determined who lived in that unit and put a photo line-up to Mr. Boutros. He picked out Mr. Idres Ismail. Later, he would tell police that Mr. Ismail went by a nickname – “Nick Montana” – and that he had seen him around from time to time prior to May 27, 2019. He is certain that he has the right guy.
[20] I have significant reliability concerns about the identification evidence of Antoine Boutros.
[21] At the material time, Mr. Boutros was spending very little time in the Heatherington Road neighbourhood. He had started a car detailing business and was working long and hard, six days a week, setting out each morning at 7 a.m. to return after 8 p.m. On his one day off, he would hang out mostly at a friend’s place at a residence in the project away from the Ismail home. I consider, therefore, that Mr. Boutros would have had very little opportunity to see any of the comings and goings from the Ismail residence in the time proximate to May 2019. It is also worth pointing out that the evidence is that the Ismail brothers were also out and away from the Heatherington Road complex much of the time. None of these fellows struck me as homebodies. As a result, it appears that Mr. Boutros would have crossed paths with Mr. Ismail and his brothers only rarely and sporadically.
[22] While Mr. Boutros’ evidence is recognition evidence in that he was not identifying a stranger, it is not as if he and Mr. Ismail were close or indeed had any relationship at all. Mr. Boutros agreed that he had never had a conversation with Mr. Ismail or even heard his voice before. He had never stood beside him or within 25 feet of him.
[23] I will note the obvious: this shooting unfolded as a surprising and very stressful situation. It came on without warning, seemingly out of the blue. Mr. Boutros remembers the key events as occurring over the span of about 3 to 5 seconds. Because of some construction, there was very limited artificial lighting. It is agreed that the area in question was quite dark. I consider that Mr. Boutros’ ability to observe things was significantly compromised. I will go further and say I was troubled by the inconsistency between Mr. Boutros’ evidence before me about which way he was facing when the shooter and his partner showed up and what he said at the preliminary inquiry on the same subject. At trial he said he was looking in their direction; at the preliminary inquiry, he said they came from behind him as he was looking at Mr. Serhan.
[24] Mr. Boutros’ description of the shooter is quite generic. He describes him as “tall, brown, with black hair”. He is unable to estimate height or weight. He is unable to describe body type, demurring when asked if the shooter was athletic, chubby or stocky. He cannot say if the shooter had any facial hair or anything about his hairstyle. He is unable to describe any clothing or the presence or absence of jewelry. He has given inconsistent evidence about the shooter’s apparent age. At the police station on May 28, 2019 he estimated 17 to 20. At trial he indicated 22 or 23. To my mind, proffering an age description that spans the six years from 17 to 23 is effectively an admission of having no idea.
[25] The most significant reliability concern stems from the fact that, on his own evidence, Mr. Boutros has trouble telling the Ismail brothers apart. He was inconsistent on this subject, at times claiming the ability to pick from amongst them and at times admitting that he could not. In my view, a fair assessment of his evidence is that he simply cannot tell one brother from another with anything close to confidence. I cite the following transcript reference as illustrative of the point:
Mr. Addelman: And part of the reason, or the en – the entire reason you don’t know if it’s four, five or six young men that are coming and going from that home is because you cannot tell one from the other?
A. No, I can’t – I can’t tell one from the other.
[27] Mr. Boutros does not even know how many Ismail brothers there are. The best he can do is estimate: 4, 5, 6 maybe more.
[28] The reason the issue of Mr. Boutros being unable to tell the Ismail brothers apart is so important is that there is some evidence that another of the Ismail brothers may have been at the scene. A cigarette was found close to the shooting location with that other brother’s DNA on it. Moreover, there is some evidence that an Ismail brother may be the declarant on a video message found on the deceased’s cell phone. The video message involves a young black male making what appear to be threats to anyone concerned about the September 2017 shooting death of Mouhamed Serhan’s younger brother Hamzeh, who went by the street name “EZ”. A transcript of the video runs as follows:
your homey got smoked my nigga, hmm, I’ve been smok’n on fuck’n easy (EZ) everyday man, nigga, what the fuck you gonna do about that, uhhh? Take it easy before you end up like easy (EZ), good thing I aint with the (UI) my nigga. You want to pull up on me you know where I’m at. What the fuck.
[29] It is fair to call this video threatening. It appears to indicate that the declarant had something to do with EZ’s death. It challenges the viewer: “what the fuck you gonna do about that” and warns him “take it easy before you end up like EZ”. The “you want to pull up on me you know where I’m at” requires no interpretation.
[30] It is common ground in this trial that the declarant in the video is someone other than Idres Ismail. There is no evidence that Mr. Ismail is connected to the video at all. That said, Mr Ismail looks quite similar to the young man on the video, so much so that the police originally thought it was him. The similarity between Mr. Ismail and this unknown male is relevant when assessing the fact that a witness has identified Mr. Ismail as the shooter in this case. While he does not appear to be the originally intended recipient, Mr. Serhan saw fit to save the video and viewed it sometime before he was killed. He died, therefore, possessed of a phone containing a death threat conceivably made in his direction by someone other than the accused. Indeed, he was killed while holding a record of a death threat possibly made by one of Idres Ismail’s brothers.
[32] Months later, Mr. Boutros indicated that he remembered that the shooter went by the nickname “Nick Montana” and that he had heard him be called that by various neighbourhood kids at various times before May 28, 2019. While I might not ordinarily make much of that sort of memory evolution, I learned that Mr. Boutros also has a nickname: “Tony Montana”. It is difficult to accept that Mr. Boutros would have had a nickname so similar to his own just slip his mind on May 28, 2019. One would think that when one goes by “Tony Montana”, the fact that someone living 45 feet away in the same little neighbourhood is going around as “Nick Montana” would make an impression on the brain. More probably, Mr. Boutros learned the “Nick Montana” nickname some time after May 28, 2019 as he discussed things with others from the neighbourhood, endeavouring to piece together who was responsible for the shooting. Mr. Boutros’ present insistence that he was familiar with the “Nick Montana” nickname for Idres Ismail on May 28, 2019 but could not recall it for the police is hard to believe.
The Cell Phone and Text Messages
[34] I agree with the Crown that the cell phone tower and text information establish that Idres Ismail was present at the shooting and left immediately afterward. Moreover, the text communications show that he was motivated to leave the city soon after the shooting. He called VIA Rail and he looked into an Airbnb so that he and Salwa could go to Montreal. Indeed, when the police first contacted him, he lied about his whereabouts, falsely claiming to be in Montreal.
[35] As well, in the hours after the shooting, Mr. Ismail sent numerous texts to Ms. Osman. The following is a selection of the most relevant. At 23:14, shortly after the 911 call was received at 22:41, Mr. Ismail writes: “I need to move my fams [family] asap babe girl fr [for real]”. At 23:16 he writes: “shit pop off near my house yo plz”. At 23:19, “Wallah I love u I can’t talk to much on here I love you u know that” and at 23:41 “Wallah shit got real babe girl”. Finally, at 23:44 he writes: “I fucked my self up nicely”.
[36] I infer from this after the fact conduct that Mr. Ismail felt a pressing need to refrain from going home and indeed felt a need to flee the city. A desire to leave a scene and especially a desire to stay away from home and instead to leave town after a shooting could be considered after the fact conduct indicative of guilt in respect of that shooting. The desire to flee is a piece of circumstantial evidence relevant to state of mind in the form of consciousness of having done wrong.
[37] I should note here that Mr. Ismail’s desire to flee was somewhat temporary. Even in his text exchanges with Ms. Osman he appears to change his mind about the idea. After hearing from police on May 28th, 2019 that he was wanted for murder he contacted counsel and turned himself in soon thereafter. Nonetheless, I shall consider the after the fact conduct as it might relate to identification, either on its own or as corroboration of the evidence of Mr. Antoine Boutros.
[38] I wish first, however, to discuss a puzzling utterance that occurred in the police interview room on May 28, 2019 immediately after Mr. Boutros had selected Idres Ismail’s photo from the line-up. An exchange between Mr. Boutros and Sergeant O’Brien went like so:
Boutros: Yes.
O’Brien: Okay. Yes what. Who’s this person yes? Why’re you saying yes? How do you recognize them?
Boutros: Well, this person is the face that I saw…
O’Brien: Okay.
Boutros: …that’s the taller guy.
O’Brien: Okay. And who is he in all of this?
Boutros: And this guy lives in … across of my house.
O’Brien: Okay. And what was their involvement in this incident?
Boutros: That I don’t know.
O’Brien: You don’t know.
Boutros: The reason what all that happened, I don’t know. That just happened really quickly.
O’Brien: Okay. All right. So just write yes.
[39] The lead interviewer, Detective Hill comes back in, understandably confused. In short order, Mr. Boutros indicates that he had misunderstood the question and goes back to being quite certain that the man he is identifying is the shooter.
[40] I recognize that no witness is expected to be perfect at all times. However, I cannot fully shake the impression that Mr. Boutros here expressed some hesitation and self-doubt about the nature of the involvement on the part of the man being identified. The question “what was their involvement in this incident?” is pretty simple and clear. The answer “that I don’t know” is worrisome.
[41] When I consider this stumble in light of the DNA evidence that possibly puts another of the Ismail brothers at the scene as well as the video threat on the phone of the deceased that possibly emanates from an Ismail brother other than Idres, and the fact that Mr. Boutros admittedly has trouble telling the Ismail brothers apart, I find a body of evidence crystalizes that at least makes it plausible that Idres Ismail was there, but was not the shooter. I do not say that is what happened, but it is not a proposition I can reject.
[42] After the fact conduct is a form of circumstantial evidence. In order to convict on the basis of circumstantial evidence, I must be satisfied beyond a reasonable doubt that Idres Ismail’s guilt is the only rational inference that can be drawn from the evidence or the absence of evidence: R. v. Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, at para. 37. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof required.
[43] If Idres Ismail was the second man, in other words there but not the shooter, it is plausible that he would have conducted himself after the fact in the same way he actually did. As a man present at what was effectively an execution, he might have felt an impulse to leave the scene and maybe even to leave town.
[44] Indeed, it might not have only been the police that Mr. Ismail was worried about facing in the hours after the event. On that front, I found it noteworthy that his first communication to Ms. Osman was about moving his whole family.
Conclusion
Conclusion
[50] I have real worry that Antoine Boutros is trying hard to identify Idres Ismail because he is convinced that he is guilty, and he wants to do right by his deceased friend. He has so assured himself of the righteousness of his cause that I think he genuinely believes that he saw what he says he saw. That said, it would be unsafe to convict on the basis of Antoine Boutros’ evidence. It is unacceptably replete with significant reliability and credibility frailties. The after the fact conduct and associated texts do not point to guilt as the only rational or reasonable inference and are therefore unable to supplement the Boutros evidence to the degree called for in the circumstances.
[51] The Crown has failed to discharge its heavy burden. I am left with a reasonable doubt after considering the whole of the evidence. I find Idres Ismail not guilty.
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