



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 appellants ex-wife
    having sex with a man, S.F., who had been the appellants friend, but was now a
    bitter enemy.
[1]
The appellants 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 appellants 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 appellants ex-wife and S.F. testified to
    their belief that it was the appellant who had sent these messages. Indeed, it
    was the appellants ex-wife who showed the messages she received to the police,
    which led to the appellants arrest.

[5]

At trial, the prosecution relied on evidence of the appellants 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 prosecutions case, however, were the
    messages received by the appellants ex-wife and S.F.

[6]

The defence theory was that some, or all, of these messages were, in
    fact, created by the appellants 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
    prosecutions 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
    prosecutions case. He also admitted, and relied upon, identification evidence
    from the appellants 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 appellants 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 judges 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 judges handling of the messages.

(a)

The messages

[10]

As I earlier observed, the various messages were central to the
    prosecutions 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 appellants 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 judges finding that he authored the
    messages was based on logically flawed reasoning.

(i)

The SMS Messages

[14]

There
    is no dispute that the appellants 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 appellants ex-wife and from the phone that belonged
    to S.F.

[15]

In
    the case of the messages from the phone of the appellants 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 appellants ex-wife had saved the number as a
    contact in her phone under the name Sumal Jan, with a photo of the appellant.
    The appellants ex-wife testified that Sumal Jan was the appellants real
    name from back home and what his family called him. The appellants 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 appellants ex-wifes 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 senders 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 appellants
    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 appellants 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 appellants ex-wifes 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 appellants ex-wife. The detective explained that the messages
    were contained in screenshots taken by the appellants 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
    appellants 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 appellants 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 appellants 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 appellants ex-wifes 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 appellants 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 appellants
    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, its usually.

[35]

The
    trial judge accepted H.M.s evidence on the timing of the appellants 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 12
th
,
    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 appellants 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 judges 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 prosecutions 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 appellants 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 appellants clothing,
    although its importance in terms of the identification of the appellant, as the
    firebomber, is obvious.

[39]

The appellants 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 appellants 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 appellants 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 videos resolution was
    less than ideal. Indeed, the appellants ex-wife agreed that it was blurry.
    The trial judge found that the appellants ex-wifes 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 appellants
    ex-wife had seen how the person had moved in the video, in terms of her
    identification. However, the appellants 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 perpetrators face and body type. Quite the
    contrary. The trial judge erred in relying at all on the appellants ex-wifes
    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
    prosecutions suggestion would involve an incredible coincidence, and one for
    which there is absolutely no evidence.

[46]

The trial judges 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
    appellants 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
    appellants 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 appellants 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
    appellants family home based on information provided to the police by the
    appellant.


