R. v. Aslami

R. v. Aslami Collection Decisions of the Court of Appeal Date 2021-04-21 Neutral citation 2021 ONCA 249 Docket numbers C66326 Judges Simmons, Janet M.; Lauwers, Peter D.; Nordheimer, Ian V.B. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Aslami, 2021 ONCA 249 DATE: 20210421 DOCKET: C66326 Simmons, Lauwers and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Milad Aslami Appellant Jill R. Presser and Cate Martell, for the appellant Emily E. Marrocco, for the respondent Heard: November 19, 2020 by video conference On appeal from the convictions entered on December 8, 2017, and the sentence imposed on April 26, 2018, by Justice W. Vincent Clifford of the Ontario Court of Justice. Nordheimer J.A.: [1] Milad Aslami appeals from his convictions on multiple charges related to the firebombing of a home in Ottawa that occurred on November 12, 2016. The issue at trial was whether the appellant was the firebomber. In my view, the trial judge made three serious errors in his analysis that led to the convictions. As a result of these errors, the convictions cannot stand. Background [2] The events leading up to the firebombing began with the appellant’s ex-wife having sex with a man, S.F., who had been the appellant’s friend, but was now a bitter enemy.[1] The appellant’s ex-wife, who had only recently separated from the appellant, engaged in this activity as a way of hurting the appellant. She ensured that the appellant learned of her sexual encounter with S.F. when, the day after the sexual encounter, and shortly before the firebombing occurred, she sent the appellant a picture of her and S.F. in bed together. [3] It was those few hours, after the picture was sent, when the home of S.F.’s former partner (and the mother of his children), was firebombed. At 2:00 p.m., a stolen van was driven into a vehicle parked in the carport of the home. A homemade incendiary device was then thrown through the living room window. Fortunately, the occupants of the home escaped unharmed. [4] Before and after the firebombing, the appellant’s ex-wife and S.F. received several messages, both by text and on social media platforms. The contents of some of those messages suggested that the sender was involved in the firebombing. At trial, both the appellant’s ex-wife and S.F. testified to their belief that it was the appellant who had sent these messages. Indeed, it was the appellant’s ex-wife who showed the messages she received to the police, which led to the appellant’s arrest. [5] At trial, the prosecution relied on evidence of the appellant’s motive (revenge for the sexual encounter) and the fact that the appellant had the opportunity to commit the attack. There was also a purported identification of the appellant as the firebomber, from a surveillance video, of which I will have more to say later. A crucial part of the prosecution’s case, however, were the messages received by the appellant’s ex-wife and S.F. [6] The defence theory was that some, or all, of these messages were, in fact, created by the appellant’s ex-wife and S.F. in order to frame the appellant for the firebombing and cause his removal from Canada. The appellant did not testify, nor did the defence lead any other evidence. The trial decision [7] This was a judge alone trial. The trial judge recognized that the prosecution’s case was largely circumstantial. He referred to the decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The trial judge acknowledged that the prosecution “may need to negative” other reasonable possibilities that arose from the evidence. [8] After reviewing the evidence, the trial judge found that it was the appellant who had sent the various messages that provided the crux of the prosecution’s case. He also admitted, and relied upon, identification evidence from the appellant’s ex-wife, who had watched a video of a person believed to be the firebomber that had been taken from a transit station surveillance camera. The appellant’s ex-wife identified the appellant as the person in this surveillance video. Finally, the trial judge made reference to the fact that the appellant had not testified. He followed this observation by finding that the appellant had, thus, not put forward any evidence of “an affirmative defence”. The trial judge concluded that there was “an overwhelming body of evidence” that established the guilt of the appellant beyond a reasonable doubt. Analysis [9] It is not necessary to address every complaint that the appellant makes regarding the trial judge’s reasoning. I said at the outset that the trial judge committed three serious errors in his analysis. It is only those errors that I will address, in turn. I begin with the trial judge’s handling of the messages. (a) The messages [10] As I earlier observed, the various messages were central to the prosecution’s case. In my view, the trial judge did not recognize the inherent fallibility of this evidence. [11] This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or “apps”, can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different person. Similarly, the timing of the messages can be altered to suit a particular purpose. [12] There were three sources of the messages in this case: SMS text messages, messages from an app called TextNow, and messages on a Facebook page. Each of these different sources has its own particular frailties. [13] It was part of the defence theory in this case, that these messages could have been sent by the appellant’s ex-wife, on her own or in conjunction with S.F., and could have been made to look like they came from the appellant, in order to frame the appellant for the firebombing. The appellant notes that this conduct would be consistent with the desire of his ex-wife to hurt him, or otherwise get revenge on him, arising from the breakdown of their relationship. It would also be consistent with the longstanding animus that existed between S.F. and the appellant. The appellant asserts that the trial judge’s finding that he authored the messages was based on logically flawed reasoning. (i) The SMS Messages [14] There is no dispute that the appellant’s ex-wife and S.F. received various SMS messages from someone. The police extracted the SMS messages both from the phone that belonged to the appellant’s ex-wife and from the phone that belonged to S.F. [15] In the case of the messages from the phone of the appellant’s ex-wife, the cellphone number from which the messages were sent was registered to someone other than the appellant. The only connection between the appellant and that cellphone number was the fact that the appellant’s ex-wife had saved the number as a contact in her phone under the name “Sumal Jan,” with a photo of the appellant. The appellant’s ex-wife testified that “Sumal Jan” was the appellant’s “real name from back home” and what his family called him. The appellant’s ex-wife testified that she also recognized the number as one used by the appellant. She added that she believed that she was communicating with him. A police detective gave evidence that there were several entries on the appellant’s ex-wife’s cellphone for the name “Sumal Jan” that had different phone numbers associated to them. [16] S.F. also received some SMS text messages on the day of the firebombing, but only a few, and they were sent in the space of two or three minutes. While these messages were extracted from S.F.’s cellphone by the police, the sender’s phone number could not be identified. There was no evidence that the phone number, from which these messages emanated, was connected to the appellant, other than S.F.’s evidence that he thought the messages came from the appellant. (ii) The TextNow messages [17] Between the day of the firebombing, November 12, 2016, at 12:59 p.m., and the next day, November 13, 2016, at 4:23 a.m., the appellant’s ex-wife exchanged a great many messages using the TextNow app with a contact that was, once again, saved by her as “Sumal Jan”. The appellant’s ex-wife again testified that she believed she was texting with the appellant. [18] Because these messages were received through the TextNow app, they could not be extracted from the appellant’s ex-wife’s phone. A witness from Rogers Communications provided technical evidence that only SMS text messages and voice calls appear in cellphone records, not communications sent through text apps like TextNow. [19] A police detective explained how they obtained the TextNow messages from the phone of the appellant’s ex-wife. The detective explained that the messages were contained in screenshots taken by the appellant’s ex-wife, while a detective watched, between 11:26 p.m. and 11:57 p.m. on November 13, 2016, the day the appellant was arrested, and then again in October 2017. [20] The TextNow messages raise a number of issues. For one, the prosecution did not lead any evidence to establish precisely when the TextNow messages were sent. The police officer testified that the data connected to each TextNow image shows only the time when the screenshot was created and not exactly when each of the captured messages was sent or received. The prosecution also did not lead any expert evidence regarding the functioning of the TextNow app, or its reliability, or any ability to manipulate the date, number, name of the sender, or any other details as to the operation of the app. [21] The appellant’s ex-wife testified to her belief that the times shown on the screenshots, in the small circles embedded at indefinite intervals between the messages, corresponded with when the TextNow messages were exchanged. However, because the timestamps appear infrequently, often with many messages in between, they only provide, at best, a rough sense of the timing of each message on the day it was sent or received. (iii) The Facebook messages [22] The third form of messaging was through Facebook. Facebook messages were exchanged between S.F. and someone using a Facebook account with the moniker, “Trustnoone Mob”. S.F. testified that he believed this account was associated with the appellant. He also testified that he believed he had been messaging with the appellant. The messages in question were sent between 2:40 p.m. on November 12, and 3:28 a.m. on November 13. Once again, the messages were obtained by the police through screenshots, taken by S.F. on his cellphone. (iv) The evidentiary value of the messages [23] I accept that there were SMS text messages, sent towards the end of the events leading to the arrest of the appellant, that could be used to support a finding that it was the appellant who sent those text messages to his ex-wife. In particular, the last of the text messages that were sent while the appellant was hiding from the police, who were actively searching for him, could be reasonably concluded to have been sent by the appellant. I should note, however, that even that conclusion is not without its difficulties since, when the appellant was arrested, no cellphone was found on his person and, for reasons that are not explained, the police did not search the residence for one.[2] In any event, those later text messages did not implicate the sender in the firebombing. [24] The bigger problem for the prosecution, however, is that the case did not rest on the contents of the SMS text messages. Rather, the incriminating messages were obtained from the TextNow app. Indeed, the appellant’s ex-wife testified that “[o]ur whole argument was over the TextNow app.” Unlike the SMS text messages, not only were the TextNow messages obtained in an unusual and not especially reliable way, there was nothing in the content of those messages that objectively established the appellant as the sender nor, as I have mentioned, was there any expert evidence offered regarding the functioning and reliability of the TextNow app.[3] [25] The trial judge did not deal directly with the problems surrounding the reliability of the TextNow messages. Instead, the trial judge engaged in an exercise of comparing the TextNow messages with the SMS messages, which led him to conclude that they all originated from the same person, namely, the appellant. The trial judge said: “I find that there are striking similarities in the substantive content, specific terms, tone, grammar and spelling when comparing the messages at tabs 1 and 3.” [26] In my view, this represents a flawed and unreliable foundation for the conclusion that the trial judge reached. Grammar and spelling are not, generally, unique to a single person. Further, there are many unusual expressions that are routinely used in text messages that do not reflect proper grammar or proper spelling. Further, any person who has ever sent a text message has very likely engaged in spelling errors or, worse, has had their intended language changed by the spell check function. [27] I also do not understand what the trial judge meant by, or how he could extract, the “tone” of the text messages. It is also not clear how tone would be unique to the appellant. If the sender appeared angry or frustrated, he would not be the only sender of text messages who might be operating with those emotions. Further, there was no dispute that there was animus between the appellant and his ex-wife, and an even greater animus between the appellant and S.F., at this time. [28] Further, the reference to “substantive content” is troubling because it effectively assumes that the appellant is the sender. In other words, reliance on the content of the messages engages somewhat circular reasoning. It assumes that, because the sender of the messages knew about the firebombing, it must be the appellant who sent the messages. This approach also fails to give any consideration to the defence position that, in fact, it was the appellant’s ex-wife and S.F. who were sending the messages as a way of framing the appellant. [29] Last, are the Facebook messages. In my view, these messages had no evidentiary value. There was no evidence whatsoever tying the appellant to these messages, save for the evidence of S.F. that he believed that they came from the appellant. The problem with relying solely on S.F.’s evidence on this point, given the obvious animus between the two, is self-evident. S.F., more than any other person, had reason to falsely implicate the appellant.[4] [30] As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not. (b) The identification evidence [31] There are two specific problems that arise from the identification evidence that was led in this case. One has to do with the appellant’s ex-wife’s identification of the appellant as the individual in a surveillance video. The other has to do with the clothing that the firebomber was observed by an independent witness to be wearing, proximate to the time when the firebombing occurred. [32] The first problem arises from a transit video camera that captured footage of the man, who the police believed was the firebomber. The man was wearing what a police officer described as “bright white pants” and a dark jacket. He ran past the camera, at 2:07 p.m., in an area that happens to also include the home of C.C., a friend of the appellant’s ex-wife. [33] On the day of the firebombing, the appellant arrived at this home, although the exact time when he arrived was a matter of dispute. The appellant asked to use the Wi-Fi to call for a ride. C.C. was not home but her boyfriend, H.M., was, as were C.C.’s children. According to H.M., the appellant stayed for about ten minutes. During that time, the appellant appeared to H.M. to be texting. H.M. testified that the appellant was wearing black jogging pants and possibly a black shirt. C.C. arrived home shortly after the appellant had left. Her children told her excitedly that the appellant had just visited. [34] There was a difference between H.M. and C.C. as to the timing of the appellant’s visit. H.M. believed the appellant visited at about 1:00 p.m. or 2:00 p.m., while C.C. was doing groceries or running errands. C.C. could not remember what she had been doing that day, but she believed that she would have returned home “before naptime, because I have to nap the kids”, “[s]o, 12, 12:30, 1, maybe, it’s usually”. [35] The trial judge accepted H.M.’s evidence on the timing of the appellant’s arrival. He appears to have dismissed C.C.’s evidence because she was equivocal about the time she returned. The trial judge then used the timing of the visit to authenticate some of the text messages. He said: Based on the evidence before me, I find that [the appellant] was at [C.C.’s] residence on November 12th, 2016 during the afternoon at which time he had access to WiFi and that he was texting. This has significant relevance to the determination of who authored the texts sent to [the appellant’s ex-wife] at that time. The timing and the description within the texts of what is occurring is astonishingly similar to what had actually occurred; as described in detail by [H.M.]. This is very persuasive evidence which clearly supports the position that [the appellant] authored the above-mentioned texts. [36] In my view, there are two problems with the trial judge’s treatment of this evidence. For one, you cannot use the fact that the appellant appeared to be texting to, in some fashion, link the appellant to the various text messages sent. One does not simply follow from the other. For another, it seems curious for the trial judge to dismiss C.C.’s evidence as to when she returned home, given the reason that she gave for establishing when that was, i.e., putting her children down for their regular nap. For yet another, even accepting H.M.’s evidence as to the time (between 1:00 and 2:00 p.m.), it remains a problem for the prosecution as that time is still before the firebombing occurred. It was the prosecution’s position at trial that the appellant visited the home after abandoning the van used in the firebombing. [37] That fact leads into the second problem with the identification evidence. It arises from the evidence of H.M. that the appellant was wearing black pants. The transit video shows the apparent firebomber, and he is wearing white pants. There is no suggestion, nor is there any evidence, that the appellant had the opportunity to change pants between his visit to C.C.’s home and the time of the firebombing. Further, the closer the appellant’s visit was to 2:00 p.m., the less time he would have had to both change his clothes and get to the firebombing. [38] The trial judge never addresses the evidence about the appellant’s clothing, although its importance in terms of the identification of the appellant, as the firebomber, is obvious. [39] The appellant’s ex-wife was shown the transit video. There was no dispute that she had sufficient familiarity with the appellant that, in appropriate circumstances, she could give opinion evidence whether a person seen in a video was, or was not, the appellant. The issue here was that the length and quality of the video did not provide those appropriate circumstances. Further, after viewing the video, the appellant’s ex-wife testified in chief that “[i]t looks to be [the appellant]” and then agreed in cross-examination that her evidence was that “[she] guess[ed] it kind of looks like him”. The appellant’s ex-wife did not explain what led her to believe that the person she saw on the video was the appellant. [40] The trial judge said that the video portion, showing the individual, was “short” (it was five seconds) and that the video’s resolution was “less than ideal”. Indeed, the appellant’s ex-wife agreed that it was “blurry”. The trial judge found that the appellant’s ex-wife’s opinion as to the identity of the person in the video would “clearly fall short” of establishing the identification of the appellant beyond a reasonable doubt, but he found that the evidence was nonetheless not worthless. The trial judge said it could be considered alongside other evidence. [41] The trial judge also noted, on this point, that the appellant’s ex-wife had seen how the person “had moved” in the video, in terms of her identification. However, the appellant’s ex-wife had not said that she relied on the physical movement of the person as a reason for her identification. [42] In my view, this evidence was worthless. It had no probative value on the issue of identification. As Hourigan J.A. observed in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39: The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. 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. [Citations omitted.] [43] This was not a case like R. v. Carroo, 2010 ONCA 143, 259 O.A.C. 277, at paras. 10 and 27, which the respondent relies on, where the identification was based on the witness’ “close contact” with the perpetrator “directly in the close quarters of a car with relatively good lighting” and where the witness had a “clear view of the perpetrator’s face and body type.” Quite the contrary. The trial judge erred in relying at all on the appellant’s ex-wife’s identification from the “blurry” video. (c) The van [44] The third serious error involves the evidence of the van that was used by the firebomber. It was a white van with signage on the side. The van belonged to a company that had reported it stolen the day prior to the firebombing. In other words, the van was stolen more than 24 hours prior to the appellant learning of the sexual encounter between his ex-wife and S.F., which is said to have been the catalyst for the firebombing. [45] There is no evidence implicating the appellant in the original theft of the van nor is there any evidence as to how it came into his possession, assuming of course, that it did come into his possession. The prosecution attempted to avoid this problem by suggesting that the appellant may have stolen the van some time after it was originally stolen. That would mean that the van would have had to have been stolen twice in under 24 hours. The prosecution’s suggestion would involve an incredible coincidence, and one for which there is absolutely no evidence. [46] The trial judge’s response to this issue was succinct. He said simply that it did not “support a plausible theory that is inconsistent with guilt and it [did] not raise a reasonable doubt”. That was, in my view, an inadequate response to this issue. It was also incorrect. SUMMARY [47] As I noted at the outset, this was an entirely circumstantial case. Consequently, the trial judge was required to follow the analytical route set out in Villaroman, where Cromwell J. said, at para. 37: When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.] [Emphasis in original.] [48] The trial judge purported to comply with this approach, but it is clear that he did not do so. He said that he could see “no other ‘plausible theories/reasonable possibilities’ other than that of the guilt of [the appellant.]” It seems likely that it was the errors, to which I have referred above, that caused him to reach that conclusion. [49] It also seems likely that that conclusion was the result of the trial judge not considering the evidence as a whole. Viewing the evidence as a whole is a critical part of its necessary evaluation, especially in a circumstantial case, in determining whether it proves guilt beyond a reasonable doubt. As Watt J.A. said in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81: “It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof” (citations omitted). [50] The problems with the text messages, combined with the evidence of the clothing that the appellant was wearing and his presence at the home of his friend at, or only shortly before, the time that the firebombing occurred, combined with the timing of the theft of the van used in the firebombing, had to raise a reasonable doubt, on any fair and objective view of the evidence, as to the appellant’s guilt. It was certainly sufficient to raise a plausible theory, or reasonable possibility, consistent with the defence theory. [51] In my view, the trial judge, in coming to his conclusions, manifestly failed to consider all of the evidence. Rather, he focussed on the evidence that supported a finding of guilt and ignored, or at least failed to adequately address, the evidence that raised “other reasonable possibilities" which were inconsistent with guilt and, thus, would have raised a reasonable doubt. CONCLUSION [52] I would allow the appeal, set aside the convictions, and order a new trial on all charges. In view of my conclusion on the conviction appeal, I do not reach the sentence appeal. Released: April 21, 2021 “J.S.” “I.V.B. Nordheimer J.A.” “I agree. Janet Simmons J.A.” “I agree. P. Lauwers J.A.” [1] The appellant and his wife were separated. Given the context of this case, and to avoid the use of names, I will refer to her throughout these reasons as the “appellant’s ex-wife”. [2] The police returned to the residence the next day and did seize a cellphone. However, it was registered to someone other than the appellant and its number was not linked to these messages. [3] For example, the appellant’s ex-wife suggested that she was able to use the TextNow app to conceal her phone number from the appellant. [4] S.F. had twice been charged in the past with drive-by shootings at the appellant’s family home based on information provided to the police by the appellant.