Between
Her Majesty the Queen, and
Abdirashid Ali Guled
[2005] O.J. No. 2781
Court File No. 7449/04
Ontario Superior Court of Justice
Brampton, Ontario
F. Dawson J.
Heard: March 22, 2005.
Oral judgment: March 22, 2005.
(42 paras.)
Charges: Criminal Code of Canada - Section 334(a) x 2 - Section 354(1)(b) x 2
Counsel:
Ms. A. Esson, Counsel for the Crown
Mr. L. Sabsay, Counsel for the Accused
1 F. DAWSON J. (orally):- The accused is charged with the theft of two Lincoln Navigators on December 11th, 2002. At that time he was employed or had been employed as a car jockey by Budget Car and Truck Rentals at the Toronto airport location for approximately 13 years.
2 His responsibilities were to clean vehicles at the garage on Indian Road and to deliver them to any of the three airport terminals, as directed by his supervisor. The clean vehicles were left in slots or spaces in the area of the terminals' parking facilities designated for use by Budget.
3 The keys to clean vehicles were then handed in at the nearby rental booth, together with a form that showed the vehicle's mileage, fuel status and condition. The counterperson would then input into the computer that the vehicle was clean and available for rental. The accused would then either take a dirty vehicle, returned by a customer, back to the Indian Road garage for cleaning, or he and other jockeys would be driven back to the Indian Road garage by a supervisor.
4 Movements of all vehicles in and out of the Indian Road garage were monitored by a security guard who scans the identification of arriving and departing vehicles into the computer, and also inputs the employee number of the car jockey driving the vehicle. If managers are driving vehicles the employee number is apparently not recorded.
5 The computer records filed in this case show that the two Lincoln Navigators in question had both been delivered to the Terminal 2 Budget location shortly after 7:00 a.m. on December 11th, 2002.
6 These vehicles are expensive and due to past thefts Budget had equipped these and other expensive vehicles with a Global Positioning System that utilized satellite technology to periodically report on the vehicle's location whenever the ignition of the vehicle was in the on position. Reports of that information, called Air IQ Reports, were filed at trial for each of the vehicles.
7 These showed that at 11:11 a.m., on December 11th, 2002, the first of the Navigators to be stolen was moving on Highway 401. By 11:26 a.m., it was already at a location on Orenda Road, where it was later located by the police.
8 The second Navigator was on the move by 3:28 p.m., on a highway ramp in Etobicoke, not long after that it was at the Orenda Road location.
9 On the morning of December 12th, 2002 Budget employee Ruth Disotell reviewed the Air IQ Reports and saw that the Navigators were off airport property. She determined that they had not been rented. Her supervisor Harry Edgar went to the area where the GPS indicated the vehicles were, and after locating them, called the Peel Regional Police Service. Edgar observed the vehicles being moved into a warehouse on Orenda Road. When the police entered that premises they arrested Kwame Antwi and Kwaku Anin, who are now the main Crown witnesses against the accused. Also arrested was Richard Erskine, who ran a shipping business at the Orenda Road address. He did not testify.
10 When arrested Kwaku Anin was in possession of shipping documents that showed a container had been rented on November 17th, 2002, almost one month before. The Navigators were bound for Ghana in West Africa. Both Antwi and Anin are from Ghana.
11 The police interviewed Antwi and Anin subsequent to their arrests. They provided information to the police, which they now agree was false and inaccurate. Significantly, during Kwame Antwi's first interview, Constable Bettes advised Antwi that what he really wanted was the inside person at Budget who supplied the Navigators. Antwi then ended up in detention at the Maplehurst Correctional Centre and was concerned that he would not get bail. Testimony from Antwi's common-law spouse and brother confirmed these concerns.
12 Antwi then initiated contact with Constable Bettes, who visited him at the jail. Antwi agreed to provide the name of the person at Budget and give a sworn statement on videotape. The officer arranged a Judge's Order to have Antwi brought to a police station. The video shows that Antwi was given immunity in respect of other things he might admit to. This would not apply to perjury as it seems to me. He apparently agreed that he would plead guilty to the offence. I do not have exact details of all of the terms of the agreement made with Mr. Antwi.
13 On the videotape, after confirming the immunity arrangement, Antwi spoke up and added, "And it's going to get me bail on Friday?" which the officer confirmed was correct. In the course of his statement he indicated that the accused had supplied the Navigators. Antwi later entered a plea of guilty in respect of the Navigators, and received a Conditional Sentence.
14 Kwaku Anin was released from custody. He thereafter, and before giving a further statement to the police which implicated the accused, spoke with Kwame Antwi. Anin later gave a videotaped statement to the police which did implicate the accused. However, he was unable to select the accused's photograph out of a photographic line-up. Based on the statements of Antwi and Anin the accused was arrested at work on January 30, 2003.
15 The accused testified at trial. He denied any involvement in the thefts. He knows Kwame Antwi, but denies the degree of social contact with Antwi that Antwi says the two had.
16 The accused, who is Somali, testified that Antwi sold watches and furniture and had asked him to recruit customers for him from the Somali community. The accused had arranged for another man to purchase furniture from Mr. Antwi on one occasion, but when the deal fell through Mr. Guled, the accused, had a lot of trouble getting a deposit back from Antwi. The accused testified that he went to Antwi's apartment three times but was always told by Antwi's girlfriend or common-law spouse that he was not there.
17 The accused has filed a grievance against his employer, Budget Car and Truck Rental for firing him. He and Kwame Antwi are both being sued by Budget for damages in relation to stolen vehicles.
18 The accused also testified that Kwame Antwi was well aware that he worked for Budget Car and Truck Rental. He testified that Antwi tried to raise the issue of the accused getting stolen vehicles from Budget but that he, the accused, always diverted the conversation or avoided it.
19 The most significant evidence against the accused comes from Kwame Antwi. Given the circumstances under which he first implicated the accused, I caution myself that I must proceed with great care before I accept or rely upon Kwame Antwi's evidence. He wanted bail. He knew the accused worked at Budget. The police told him that they really wanted - what they really wanted was the person at Budget. There are strong parallels here to the concerns that arise in respect of jailhouse informants.
20 I note that Antwi has a previous finding of guilt for obtaining by false pretences. Although Antwi denies it, Kwaku Anin said Mr. Antwi is known within the West African community as a person in the business of shipping stolen cars, to Ghana in particular. I accept this evidence.
21 The Crown acknowledges that Mr. Antwi seems not to be truthful in parts of his testimony, likely because he is trying to hide the fact that he is more deeply involved in the international shipment of stolen vehicles than he is prepared to admit. However, Crown counsel argues that Mr. Antwi has no motive or reason, in particular, to falsely implicate the accused, Mr. Guled.
22 No doubt Crown counsel's very candid concession in relation to the problems with Mr. Antwi's credibility, on some aspects of his testimony, is prompted by the numerous inconsistencies in his version of events, and numerous inconsistencies between his evidence and that of Kwaku Anin. There are indeed many such inconsistencies, which were reviewed by counsel in argument, and I don't propose to review them each here. However, it is the Crown's position that Antwi's apparent desire to maintain secrets related to his illegal business activities does not necessarily infect or flow through to his testimony that Mr. Guled was involved in these particular thefts.
23 I have carefully considered this submission. However, I would note that if Antwi was in the stolen car business to the extent the evidence suggests, he would have reason to be concerned or may well have reason to be concerned that his co-conspirators and business associates not be identified. He may well want investigators to be far off the track of his associates, his illegal methods, his illegal business and his income derived from illegal sources.
24 While I generally place little weight on demeanour, I watched Antwi as he was met again and again in cross-examination with contradictory prior statements to the police, some of which were under oath, as well as with his preliminary hearing testimony. Overall I formed the impression that he was an unscrupulous person. I have a real concern that he will say whatever he thinks will help him, and protect him, at any given time. Consequently, I am unable to accept the Crown's submission that Antwi has no reason or motive to implicate Mr. Guled. I think that if he wanted to protect himself, his business associates, his methods, his illicit income stream, he would have little compulsion in implicating someone not involved who was a viable suspect.
25 I then looked to see if there was other evidence in this case, which I am prepared to accept, which either confirms material aspects of Antwi's evidence in relation to Mr. Guled's involvement or otherwise tends to implicate Mr. Guled in the crimes charged.
26 The first potential source is, of course, Kwaku Anin. Crown counsel submits that unlike Mr. Antwi, Mr. Anin was not deliberately deceptive, and that he was trying to be truthful and helpful. However, I cannot ignore the fact that Mr. Anin is an accomplice and partner of Mr. Antwi in this criminal activity. He acted as the go-between to Richard Erskine, who did not like Kwame Antwi. He only gave evidence against Mr. Guled to the police after he had spoken with Kwame Antwi.
27 Given my serious concerns about Antwi, I have a real concern that Anin was and is under his influence. There are numerous differences between how Antwi and Anin describe the events as they went down on December 11th, 2002, and also in relation to prior meetings between themselves to make arrangements for the stolen vehicles. There are also some substantial inconsistencies between them as to whether Mr. Guled was introduced to Anin as the person who would be obtaining the vehicles from Budget.
28 Based on all of these inconsistencies I have a real concern that what I am being presented with may be a fabrication. One would not expect so many variations on the central features of what happened on December 11th, 2002, in particular, if the story were true.
29 When I look for any objective evidence that would support Anin's testimony of the accused's involvement, I can only say that I find none. Anin was unable to pick the accused out of a photo line-up. I acknowledge the photo of the accused in that line-up was taken quite some time ago, but the witness instructions brought this potential to the attention of Mr. Anin before he viewed the line-up. This failure to identify in an objective situation of viewing photographs does nothing to confirm Mr. Anin's evidence, and only heightens my concerns.
30 While I ruled the evidence of the in-dock identification admissible, I find it of no real value. Mr. Anin was not able to give a description of the person who drove him to the Navigator, other than to say that he was tall and with Somali features. Given his evidence that he was expecting that it would be Mr. Guled and that he had met him before, this vagueness is surprising and works against his credibility and reliability, as it seems to me.
31 As we have heard, numerous men of Somali background work for Budget and other car rental agencies, which share adjoining space in the airport terminal garages.
32 In his evidence, Anin seemed to state that if the accused was the Guled that Antwi described, then he was the driver. As I say, at the end of the day I have an abiding concern that this evidence may simply be a fabrication. It doesn't mean, obviously, that those Navigators weren't stolen that day. They clearly were. But one can easily think of many other potential scenarios than the one here, that would have led to their theft.
33 The evidence of Cynthia Boahen, who is Kwame Antwi's common-law spouse, and of Kwabena Antwi, Kwame Antwi's brother, do nothing to allay my concerns. In fact, the manner in which this evidence came forward is quite suspicious in my view, and is consistent with the concern that I have that Kwame Antwi is orchestrating the evidence to serve his own purposes.
34 Cynthia Boahen testified on March 11, 2005. Just the day before she came to court and gave a statement to the police. She had given a statement to the police back in 2003, after Kwame Antwi had been released from jail, and after Kwame Antwi had given Mr. Guled's name to the police. However, she did not mention in her 2003 statement to the police the things she told the police about on March 10, 2005, and testified to the next day. That testimony was that shortly after Kwame Antwi's arrest, the accused contacted her on a number of occasions and asked her to tell Kwame not to mention his, the accused's, name.
35 I am quite surprised that this would not have been included in the 2003 statement, given that at that time she was well aware that Kwame Antwi was implicating Mr. Guled. I am not prepared to rely on this evidence. I have concerns as to its reliability, given these circumstances that I have just mentioned, and the close association between Cynthia Boahen and Kwame Antwi. For this reason I am also not prepared to rely on her evidence that the accused brought $10,000.00 to Kwame Antwi in late 2002.
36 Kwabena Antwi also attended court to give a statement to the police during the course of this trial. This was after his brother, Kwame Antwi, had testified, and at his brother's request. He was then called as a witness and testified. He said he was with Cynthia Boahen on one occasion shortly after his brother's arrest when Mr. Guled attended and said to tell Kwame not to mention his, Guled's, name. He also testified that just 8 weeks before this trial the accused called him over on the street and told him to tell Kwame not to mention his name in court, and that he would pay Kwame from a civil suit he was bringing against Budget Car and Truck Rental.
37 Again, I note the unusual circumstances in which this evidence came forward during this trial. I also note that Kwame Antwi had given a sworn videotaped statement and extensive preliminary hearing testimony long before Kwabena Antwi says the accused suggested that Kwame should not mention his name. The accused was aware of this previous evidence, and it is not in keeping with common sense to think that such a suggestion shortly before a trial would be in any way effective. I have concerns that these events described by Kwabena Antwi never occurred.
38 The bottom line is that I have grave concerns about the truthfulness and reliability of the evidence of Kwame Antwi and those closely associated with him. In my view it would be unsafe to found a conviction on this evidence. I am not convinced of the guilt of the accused beyond a reasonable doubt by this evidence, and he will accordingly be found not guilty.
39 And I again extend my thanks to counsel for a case that was well presented on both sides.
40 MS. ESSON: Thank you very much Your Honour.
41 MR. SABSAY: Thank you very much.
42 THE COURT: I'll just make an endorsement on the indictment. I've just made an endorsement with today's date, counsel appearing, for oral reasons dictated in court accused found not guilty on both counts.
