R. v. Moore & Stanojevic, 2016 ONCJ 185

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

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

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

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

Court Information

Ontario Court of Justice

Date: March 30, 2016

Court File No.: Central East Region (Oshawa)

Between:

Her Majesty the Queen

— And —

Gerard Moore & Katrina Stanojevic

Before: Justice F. Javed

Heard on: November 30, December 1, 2, 4, 2015, January 22, February 24, 2016

Ruling on Committal released on: March 30, 2016

Counsel:

• M. Malleson — counsel for the Crown
• D. Wilson — counsel for the accused Gerard Moore
• J. Olver — counsel for the accused Katrina Stanojevic

F. Javed J.:

I. Introduction

1. The defendants Gerard Moore and Katrina Stanojevic were jointly charged with five counts of robbery with an offensive weapon, contrary to s.343 (d) of the Criminal Code. The alleged dates of the offences on the information are as follows:

   (1) August 21, 2014, (2) August 9, 2014, (3) August 10, 2014, (4) August 11, 2014, (5) August 12, 2014.

2. Mr. Moore is separately charged with five counts of Disguised (by means of a bandana) contrary to s.351(2) and four counts of Possession of a Weapon (a box cutter), contrary to s.88(1), respectively, of the Criminal Code.

3. The parties elected to have a preliminary hearing. Mr. Moore is in custody.

4. At the conclusion of the preliminary hearing, Mr. Malleson invited me to discharge Mr. Moore on count 2 as alleged, namely, robbery with an offensive weapon (August 9, 2014) and instead commit on robbery simpliciter. In addition, he invited a discharge on count 9 (possession of the box cutter on August 9, 2014). He also invited me to stay counts 2, 3 and 4 involving Ms. Stanojevic, leaving counts 1 and 5 (two counts of robberies with Mr. Moore).

A. Overview

5. The allegations involve four robberies of a Subway restaurant and a robbery at a Dollarama store in Ajax/Pickering in August, 2014. The main issue in the case is the identification of the perpetrator(s). The Crown's theory is that Mr. Moore committed the robberies with the assistance of Ms. Stanojevic as the get away driver. On each occasion, surveillance footage captures the robberies.

6. Mr. Malleson sought to admit two pieces of evidence, namely, a photo comparison compendium prepared by Derek Williams, a Forensic Audio/Video Technician with the Durham Regional Police Service (DRPS) and the opinion of Mr. Williams who did an infrared light test on a seized sweater worn by Mr. Moore at the time of his arrest.

7. A voir dire was conducted to determine the admissibility of the above evidence with an agreement that the evidence adduced on the voir dire would apply to the preliminary hearing.

8. On December 3, 2014, I ruled that on the record before me, the photo comparison compendium and the opinion on the infrared light test did not meet the test for expert evidence and therefore was inadmissible. Nor were the opinion(s) admissible as "summaries" or under s.540(7) of the Criminal Code. However, the compendium, which contains enhanced photos was admissible, minus the opinions, as a demonstrative aid. (See Exhibit 28). In addition, the infrared test was not admissible as non-expert evidence either. To the extent that my reasons on committal will overlap with the analysis of the above issues, this judgment should be read in conjunction with that ruling.

II. The Factual Background

9. The robberies themselves are not in dispute. What remains in issue is who committed them and whether the Crown adduced sufficient admissible evidence, that a reasonable jury properly instructed, could return a verdict of guilty. The Crown theorizes that Ms. Stanjoevic drove Mr. Moore to the robberies in the white Mazda (her mother, Karen Howard's car) on four of the five robberies. The theory is that the fifth robbery involved a red Honda Civic, driven by Ms. Stanojevic but registered to her sister (Jessica Stanojevic).

10. Mr. Malleson filed materials under s.540(7) of the Criminal Code which contained witness statements and photographs take by both civilians and the police. They also included photographs taken by the police of Mr. Moore upon his arrest, those during the execution of a search warrant at Ms. Stanojevic's home at 63 Hills Rd., from the search of a white Mazda and finally, a red Honda Civic.

11. The s.540 materials were bound and contained 21 tabs. They were eventually submitted on consent, thus took on separate exhibits during the proceedings. In my ruling, I will refer to the exhibit number with the corresponding tab in the compendium where necessary. The s.540 evidence was supplemented with the viva voce evidence of some witnesses. In particular, two civilians, Rishawn Dhir and Jayesh Sathwara gave viva voce evidence. I considered both their written statements and oral evidence. Although the robberies do not appear in chronological order in the information, for purposes of my judgment, I propose to review the evidence and the police investigation that followed, chronologically.

A. The Robberies

(1) August 9, 2014 – Subway at 465 Bayly St. West, Ajax

12. The police interviewed Amber Johnston at 7:25 p.m. (Exhibit 9) She stated that she was working in the back area of the restaurant when a male wearing a big black hoodie entered the store and locked the door. He jumped on the counter and took money from the till. She described him as 6'1-6'2, wearing dark jeans, a black hoodie with a black bandana with "little white things" (possibly skulls); all black sunglasses and around 25 years old. He had dark gloves on. She believed he was white in complexion. He had his hand in his right pocket during the robbery and said "open the cash". She took photographs of the male on her cell phone when he exited (Exhibit 28, tab 2). They do not materially assist with identification.

(2) August 10, 2014 – Subway at 225 Salem Rd. South, Ajax

13. The police interviewed Cherisse Franklin at 8:04 p.m. who advised that she was working at the restaurant when around 7:05 p.m., a male walked in and locked the door. He jumped on the counter and said "open it" pointing to the till. He had a knife in his hand. After taking some money he exited the restaurant. She described the person as male, white, 5'10, with a medium build, wearing black track pants, a black bandana with white skulls, silver framed mirror glasses, a black zip up hoodie sweater and black gloves. She further described the knife as a box cutter with a yellow handle. He stole $124.69.

(3) August 11, 2014 – Dollarama at 1899 Brock Rd., Pickering

14. Rehsawn Dir is 19 years old and worked at Dollarama located at 1899 Brock Rd. in Pickering. He testified that on August 11, 2014 at approximately 1:00 am, he was working when a white male walked in through the front door. He described the male with a black hood and ski mask with what appeared to be a skeleton pattern with white bones. He was also wearing sunglasses. He was wearing black gloves but they were fingerless. He appeared to be 6'2 with a slim build. He didn't appear to speak with an accent. He said "gimme the cash""open the cash register". When leaning forward, Mr. Dir noticed the perpetrator with an orange plastic exacto knife. After taking some money he left going in the direction of a La Senza retail store. He wasn't able to see where he exactly he went. The whole ordeal lasted 2-3 minutes.

15. The incident was supplemented with two police statements. First, the police interviewed Vida Karimy at 12:50 p.m. who stated that a male entered the store and said "open the cash, give me money". He thought he had a gun in his pocket. He described the person as 6'0 feet, slim, around 20 years old, dressed in black. His face was covered with a mask, which was black with a white skeleton. He had black sunglasses on. His jacket was also black, with a white skeleton.

16. Second, the police interviewed Kenneth Ponsonby who stated that at 12:30 p.m. he saw a young white man in his early 20's, approximately 5'10", 160 pounds wearing a black hoodie, black jeans, sunglasses and dark pants. He also had dark gloves on. His wife tried to open the door to the Subway restaurant from outside but it was locked. This male unlocked the door and ran in a westerly direction. He did not see a weapon.

(4) August 12, 2014 – Subway at 705 Kingston Rd., Pickering

17. The police interviewed Dharmin Patel at 2:02 a.m. He stated that he was making bread in the restaurant when a male came towards him holding a knife in his hand and pointed it to him and said "all right buddy, give me all the cash, open the drawer". He described him as male, white, around 6'0", 25 years old, wearing a black hoodie, jeans and sunglasses. He was holding a yellow box cutter. He had a black bandana with a white skull covering his face. He was "kind of big, like kind of fat". He stole about $200.00 and traveled in a westerly direction upon exit.

(5) August 21, 2014 – Subway at 705 Kingston Rd. Pickering

18. Jayesh Sathwara is 25 years old. He testified that he started working at 11:00 p.m. Around 12:00 a.m., a man entered the restaurant and locked the front door. He described the male as wearing jeans, a hooded sweater with his face concealed. The shirt was black and white with a checkered pattern. He was white, 5'8 or 5'9 and medium build. He couldn't see his hair as he had a mask on. He was wearing aviator sunglasses and gloves covering his hands.

19. The male came to his counter and said something to the effect: "I have a knife, open the drawer, back off or you will be in trouble". He held a yellow coloured box cutter to him while doing so. Mr. Sathwara agreed and punched in a sale for a sandwich. The till opened and the male reached in and took approximately $130.00 in cash. Mr. Sathwara was firm in his recollection that the male took a $100 bill and some $5 and $10 dollar bills. He had started his shift with a till of $150.00 containing one $100 bill, which he was supposed to record as a "cash drop" but forgot to do so.

20. As soon as the male exited the store, he called 911 on his cell phone and maintained a visual of the robber (Exhibit 21). He saw him go towards a parked car and get into the passenger door. The vehicle was positioned near a Lone Star restaurant, which shares a parking lot with the commercial plaza but some distance away. He described the vehicle as a 4 door red Honda Civic. This information was conveyed to the 911 dispatch. He testified that he noted the colour when the car turned out of a car dealership where there was some artificial lighting illuminating the area. He wasn't sure about the shade of red and couldn't explain how he knew the style of the car or the lights. The car turned right on Kingston Rd. It's not disputed that this translates into going eastbound on Kingston Rd.

B. The Police Investigation

(1) The first robbery - August 9, 2014

21. On August 9, 2014, Cst. Roy attended at the Subway restaurant located at 465 Bayly St. in Ajax for a robbery call. He attended as as the scenes of crime (SOCO) officer. His purpose was to photograph the scene. In particular, he noticed that the suspect had jumped on the counter leaving footwear impressions. He took photographs of this impression (Exhibit 28, tab 3,), which were later forensically examined by Det. Hamid of the DRPS. He also seized photographs taken by the complainant, Ms. Johnston. (Exhibit 28, tab 3)

(2) The second robbery - August 10, 2014

22. The next day, Cst. Roy was dispatched to attend at the Subway restaurant at 255 Salem. Rd. South in Ajax for another robbery call. From the dispatch call, he gleaned that the robbery was similar to the event described the day before. The suspect left a shoeprint (left shoe), which he photographed. (Exhibit 49, tab 5,) He did not speak to any witnesses during this time.

(3) The third robbery – August 11, 2014

23. The following day, the police responded to a Dollarama robbery at 1899 Brock Rd. in Pickering. Several witnesses were interviewed and photographs were taken of the scene (Exhibit 28, tab 10). The surveillance images show a light coloured sedan, in the vicinity of the robbery. In particular, they show what appears to be a person near the passenger door of the vehicle. Ultimately, the police believed this to be the get away car as well as a male ( believed to be Mr. Moore) entering the passenger door. Exhibit 28, tab 6.

24. Det. Airey of the DRPS was the Officer in Charge tasked with investigating the robberies. On August 12, 2014, after reviewing the above surveillance footage of the robberies he determined that they may be connected. The robberies were committed in a 12.5 km radius and all were within larger plazas with businesses in the Ajax/Pickering vicinity. Based on surveillance photographs, he believed that they might involve a light coloured sedan. During the briefings, Det. Airey testified that the information the police collected involved a 2 door vehicle that was missing a hub cap. The vehicle driven by Ms. Stanojevic on a subsequent date didn't have a missing hub cap and instead had 4 doors. He acknowledged this could have been a mistake on his part. His strategy was to set up static surveillance on the Subway restaurants in the area.

25. The police stopped cars matching the description but nothing became of this. Ultimately, the police conducted searches on the Ministry of Transportation systems and determined that a license plate BTLB256 returned to a 2000 white Mazda registered to Karen Howard, Ms. Stanojevic's mother. They also discovered that the red Honda Civic returned to a Jessica Stanojevic, the defendant's sister.

26. On August 12, 2014, the Subway restaurant at 705 Kingston Rd. in Pickering was robbed. The time of the robbery was approximately 1:00 a.m. and according to the s.540 materials, Mr. Patel was interviewed at 2:00 a.m. Cst. Thakur from the DRPS attended and took photographs of the scene. (Exhibit 12)

(4) Surveillance - August 13, 2014

27. The police investigation was still underway based on the information gleaned from the various surveillance images. Cst. Choltz was tasked by Det. Airey to assist Cst. Barr who was making observations at a Subway restaurant at 300 Harwood Ave. in Ajax. At 12:20 a.m., he arrived on scene. Cst. Barr was already present making observations of a vehicle of interest, bearing marker BTLB257, a white 4 door Mazda with two occupants. He was advised by Cst. Barr that at 12:05 am, he was parked in the plaza with a view of the Subway restaurant, a white 4 door Mazda pulled into the parking lot and the male, sitting in the passenger seat, began to look towards the Subway restaurant. He thought that perhaps the vehicle was "casing" the Subway. The vehicle contained a man and woman who were both Caucasian.

28. At 12:45 am, the same vehicle returned to the plaza and parked the car again. He saw the occupants and believed them to be the same individuals he saw earlier. He suspected that the car might be involved in the Subway robberies. The vehicle matched the description and he felt the vehicle was "casing" the Subway restaurant. He directed Cst. Choltz to follow the vehicle as it exited the plaza. Cst. Choltz did so not losing sight of it. He ultimately followed the vehicle to a housing complex on Deacon Lane in Ajax. There, he was able to see that Cst. King was effecting a traffic stop.

29. The same vehicle was followed to a Shell Gas station at 915 Westney Rd. in Ajax. There, images are taken of a male pumping gas. The license plate was also confirmed. They clearly show a 4 door, white Mazda sedan. There are no missing hub caps. They also capture a white male, shaved head, with tattoos on his right forearm, wearing dark pants, a black and white checkered hooded sweatshirt with red markings on the front as well as what appear to be black and grey shoes with white laces and white soles. The police believed this to be Mr. Moore. (Exhibit 28, tab 8). It's not disputed that this was in fact Mr. Moore.

(5) The traffic stop & identification

30. Cst. King works in the K9 unit and was tasked with stopping the above vehicle to identify the occupants. He followed the vehicle as it pulled into a townhouse complex. He noted that there were two people in the car. When he caught up to the car, the male had exited the vehicle and was moving towards the rear. He was unable to see what he was doing, if anything. He verbally identified the driver as Ms. Stanojevic and the male, as Mr. Moore. Neither were charged with any offences and were let go.

31. In cross-examination, Cst. King agreed that he was not engaged in a traffic stop under the Highway Traffic Act. Instead, he was asked by DC Airey to identify the occupants as the vehicle matched a description of the one involved in the robberies and was acting suspicious in the plaza with a Subway. He described this method of intelligence gathering as "common practice". He did not caution either person or provide them with their rights under the Charter.

32. He engaged the parties in a conversation, which was the subject of a voluntariness voir dire. He described both as polite, professional and forthcoming. Given the investigation was ongoing, he misled them about his true purpose for stopping them and asked why they had stopped at that location. This prompted a response that they thought they were being followed by a SUV. I was satisfied that on this record, this interaction was voluntary as there were no threats, promises or inducements. I refrain from making findings on any Charter issues as I have no jurisdiction to do so but I find the traffic stop problematic given the expressed dual purpose of the stop.

(5) Surveillance - August 13, 2014

33. On August 13, 2014, Det. Airey set up surveillance at the residence of Ms. Stanojevic, having connected the vehicle to the address. His purpose was to locate a white sedan, which he believed was involved in the robberies. At 1:03 pm, he saw a white 2000 Mazda, 4 door vehicle in the driveway. He subsequently got authorization to place a tracking device on this vehicle. This was approved and installed on August 21, 2014. It was subsequently removed by him on August 26, 2014 after the arrests. He could not say who was driving the car during this time, only that it went up north for a period of time. Ms. Karen Howard, Ms. Stanojevics' mother confirmed that her husband lived up north.

(6) The Arrest & Searches of Ms. Stanojevich and Mr. Moore

34. After the last Subway robbery on August 21 2014, the police arrested Mr. Moore and Ms. Stanojevic. Cst. Ali was working with his partner Cst. Todorovski who was driving a fully marked police cruiser. The pair were dispatched at 12:03 a.m., approximately 2 minutes after receiving a call to attend at the scene of a robbery at a Subway restaurant at 705 Kingston Rd. in Pickering. They had been informed via dispatch (and ostensibly, via Mr. Sathwara who called it in) that the Subway had been robbed and the suspect was male, white and got into the passenger seat of a red 4 door Honda Civic. He was masked, wearing sunglasses and 5'9 in height.

35. The pair were traveling westbound on Kingston Rd. and observed a 2 door red Honda Civic matching the description traveling at a high rate of speed given the posted speed limit. Satisfied that this vehicle matched the description, they decided to effect a u-turn and conduct a high risk traffic stop. Cst. Todorovski stated that he didn't lose sight of the vehicle. The vehicle, driven by Ms. Stanojevic, came to a stop without issue.

36. Cst. Ali dealt with the passenger, verbally identified as Mr. Moore. He was immediately arrested for robbery. Prior to starting his shift, Cst. Ali testified that information relating to the Subway robberies had been made available to officers on their "E-parade", their internal communication system. A description of the perpetrator as male, white, 5'10 to 6'2, 18-25 years old, skinny to medium build, wearing sunglasses, dark hoody covering face and using a box cutter was posted. He was satisfied that the combination of circumstances gave him reasonable grounds for an arrest. Upon searching him, Cst. Ali discovered a swiss army knife located on Mr. Moore's belt stored in a leather holder. In addition, Mr. Moore was wearing a plain black t-shirt, blue jeans, running shoes which were black/grey with white laces and a white sole. They were branded with a "DC" symbol. He also found a black rabbit foot. Mr. Moore was not wearing a hoody or sweater. All items were seized. Mr. Moore was transported to the police station and given his rights to counsel and cautioned. I do not propose to review this evidence given that I cannot make Charter rulings. Cst. Ali confirmed that the subsequent search of the car didn't reveal any sunglasses, a mask, a bandana, a box cutter or any gloves.

37. Cst. Todorvoski dealt with the driver, identified as Ms. Stanojevic. She was also arrested for robbery. A search incident to her arrest revealed $195.00 in cash found in a wallet. The money was in denominations of 1 $100 bill, 3 $10.00 bills, 1 $5.00 bill and 3 $20.00 bills.

38. Both defendants were photographed by the police. (Exhibit 24). Ms. Stanojevic was wearing a black zip up hoodie with a grey t-shirt and pajama bottoms. Mr. Moore was wearing a black t-shirt, blue jeans and black and grey shoes with white shoelaces and white soles. His fingers contained a tattoo of a skull, a tear drop on two fingers and a heart. His forearms also had tattoos. Mr. Moore also had a brown leather container attached to his belt, a black rabbits' foot, a lighter and a red pocket knife.

39. Cst. Todorvski testified that he did not see any items being discarded from the vehicle during what he described as "two seconds" to conduct the u-turn and stop the vehicle.

40. After the arrests, Det. MacKinnon attended in the area of the traffic stop and did a ground search of Highway 2 in Pickering in an effort to find any discarded items. He searched the south side of the ditch and the trail walking back to the location of the arrest. He didn't locate anything. He could not recall if he went further west, towards the area of the Subway restaurant. A map depicts the area and shows that some residential streets off Highway 2.

(7) Search at residence of Ms. Stanojevic, Honda Civic, White Mazda

41. Search warrants were eventually secured for the Honda Civic, the white Mazda as well as the residence of Ms. Stanojevic at 63 Hills Rd., Ajax. Det. Ellis assisted with the execution of the warrant on the red Honda Civic. The warrant specified the items to search including a yellow box cutter and a black sweatshirt. After searching the car, he seized a black hooded zip up sweatshirt behind the driver's seat. This was photographed and entered as Exhibit 16. It presents with a zipper on the front and in particular, the interior had a red plaid pattern. No other items, including the box cutter, were located.

42. Det. MacKinnon conducted a search of 63 Hills Hd. in Ajax. They were permitted entry by Jessica Stanojevic and Dalton Howard who he described as very cooperative. He seized five items including: a black "Bench" sweater, which was a double XXL in size. This was hung up in the closet in a room connected to Ms. Stanojevic's room. He also found some "husky" gloves with two fingers cut off on each glove, a black pair of sunglasses, a wallet with identification of Mr. Moore on a table in Ms. Stanojevic's room. All items were turned over to the exhibits officer, Det. Baggio. They were also photographed (Exhibit 28, tab 19, s.540 materials). Of significance is the discovery of silver rimmed aviator style sunglasses, which were hanging off a picture frame (Exhibit 28, tab 19, s.540 materials).

43. Finally, Det. Airey searched the white Mazda. After removing the tracking device, he located a pair of gloves in the glove box. These were photographed.

44. Det. Airey testified about the nature of the robberies relative to other robberies in the Durham region. He indicated that after the August 21, 2014 robbery, there was no other robbery until January 4, 2015. Indeed, after the defendants were arrested, no further robberies of Subway restaurants were committed. This evidence was also subject of a voir dire to determine its relevance. For my purposes, I ruled it inadmissible as investigative hearsay, which was not put in issue by the defence. In other words, the defence did not allege the investigation was inadequate which may make the evidence relevant and therefore admissible.

C. The Photographic Evidence

45. As noted above, Derek Williams prepared a photo comparison from various surveillance photographs. (Exhibit 28) The images were taken from the robberies as well as those gathered from the police investigation. Specifically, the compendium contains the following sets of colour images, which were submitted for comparison:

i. images of all robberies and suspects; ii. images of August 9 suspect to seized clothing; iii. images of August 10 suspect to seized clothing; iv. images of August 11 suspect to seized shoes; v. images of August 12 suspect to seized clothing; vi. images of August 12 get away vehicle to August 13 shell gas subject vehicle; vii. images of August 13 shell gas vehicle to known Mazda vehicle; viii. images of August 13 subject to Mr. Moore, and ix. images of August 21 suspect to seized clothing.

46. Mr. Williams testified that he enhanced some of the images for comparison purposes and used red markings to highlight comparisons. Despite the objection of the defence, I ruled this to be admissible as a demonstrative aid as I am sitting without a jury. Clearly the presence of a jury may take on different considerations as the potential of improperly suggesting a conclusion would be heightened. Further, as noted in my ruling on this issue, the defence didn't take issue with most of the enhanced photos. I permitted the parties to make submissions on their admissibility, especially if the enhancing process compromised the authenticity of the photographs. No further submissions on this were forthcoming. The inferences that can be drawn from this compendium are discussed below in my analysis of the similar fact evidence.

D. The Footwear Impressions Evidence

47. Det. Hamid provided expert opinion evidence on footwear impressions. For purposes of these proceedings, no issue was taken with her expertise. Her report and impressions were tendered as exhibits 42-67. She examined the photographs taken of the footwear impressions left behind by the perpetrator(s) at the Subway restaurant with the known impressions of the shoes worn by Mr. Moore on arrest. In particular, the seized shoes were a "DC Bristol" men's size 10.5. She made some test prints by applying the tread of the shoes to an inkless pad. She wore the shoe and then placed it on the tracing paper, which reacted with the chemical leaving an impression. She then compared the known impression to the unknown in the photographs, which did not contain full impressions and formulated an opinion.

48. Importantly, the impressions she had to work with were partial, not full shoe prints. While she could not say with certainty that the impressions matched, her opinion was provided in the negative, that is, she could not rule out that the test impressions of Mr. Moore's shoes and those left by the perpetrator did not match. At its highest, they were similar.

49. In cross-examination, she acknowledged some limitations to her opinion, namely that it would be limited by certain variables such as the surface on which the impression was left, characteristics of the person itself, such as movement of the foot which would be impacted by height, weight and the like. The angle and specific size and type of shoe would also impact the results as well. She also could not confirm if the design on the Bristol shoe was unique to that shoe or that manufacturer for that matter.

50. She testified that her opinion was largely based on class characteristics that she could identify and in particular, the specific design element of the tread pattern. She attempted to identify the similarities in the disruption of the pattern in the arches of the shoes, which she said were similar in the two impressions. However, she candidly acknowledged that this too had limitations such as not specifically knowing whether other brands had this pattern. In this case, there were at least 7 models of shoes that had the same class characteristics.

51. Overall, I did not attach much weight to the evidence of Det. Hamid given the many limitations to her evidence. She was hampered by incomplete impressions that were left at the scene. Regardless, it is some circumstantial evidence that I must consider when considering the strength of the inferences that the Crown has asked me to draw. Mr. Wilson submits that it should be completely disregarded. With respect, I disagree. I have considered this evidence in the context of the limited weighing I am permitted when analyzing the inferences to determine if they are reasonable and thus should be left with a jury.

E. Evidence of Karen Howard

52. Ms. Howard is the mother of Ms. Stanojevic. She testified that she was the registered owner of a white Mazda seized by the police. When shown some photographs of a white Mazda photographed by the police, she stated that while she was not sure of the vehicle's license plate, it looked similar. She was sold the vehicle by a friend with a dent on the passenger back side. I'm satisfied that the vehicle depicted in exhibit 37 is some evidence of being Ms. Howard's vehicle.

53. She stated that the white Mazda was largely driven by her children and mainly by her youngest daughter, Vanessa. She recalled "possibly" allowing the defendant to drive her car but it was rare. Her eldest daughter Jessica had her own car, a red Honda Civic. In any event, she knew that Mr. Moore and her daughter were dating but she did not approve of the relationship. He was not permitted in her home but her other daughter had told her that he had been seen in the backyard. He was not allowed to stay over.

54. She used her vehicle during the day as she worked as a massage therapist. She would usually be home between 5-7 pm. She did not keep track of her vehicle and would not necessarily know if it had left the driveway. The keys were left on the coffee table not on her person. She did not keep track of where the keys were as the vehicles were moved often due to limited space on the driveway. On August 14, 2014, she confirmed that her vehicle was driven north to Mathaswan by Vanessa to visit her father. This is corroborated by the tracking device on the vehicle. She also confirmed that the bedroom searched by the police was in fact the defendant's room.

55. She could not identify the gloves found in the vehicle after it was searched.

56. Mr. Malleson sought to introduce some evidence found in her daughter's bedroom to attach a possible motive to Mr. Moore. In particular, he sought to explore any addiction issues to Mr. Moore, which I found to be inadmissible as bad character evidence. In my view, it's also not relevant as "lifestyle" evidence given it's low probative value and lack of any connection to the alleged events in question.

F. Evidence of Jessica Stanojevic

57. Jessica Stanojevic is the defendant's sister. To avoid confusion, I propose to refer to her in my judgment as simply "Jessica". She testified that her sister and Mr. Moore were in a relationship. Before the search warrant was executed on her home, Mr. Moore slept over at her house on the "odd" occasion. She knew him to carry a bandana with a skull on it in his back pocket but could not be sure about a lucky rabbit. She also confirmed that she owned a red Honda Civic but at the time it was seized by the police, her sister, the defendant, was driving it.

58. She was asked if the defendant told her what happened on August 21, 2014. She could not recall.

III. The Test for Committal

59. In the parties written submissions, there appears to be some confusion about the appropriate test for committal. While both parties cite the controlling authorities (see below), they appear to differ on their interpretation. In my view, not much turns on what I perceive as a difference in semantics. Mr. Malleson in his written materials cites the test as 'some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a "scintilla of evidence" provided it registers in the scales as any evidence at all within the Sheppard test".

60. Mr. Wilson submits that the "scintilla of evidence" test is insufficient to commit an accused to stand trial. Further, the standard on which the preliminary inquiry judge may commit for trial is separate, distinct and very different from the standard of review of a decision to commit for trial. (R. v Martin, Simard & Desjardins and the Queen (1978), 41 C.C.C (2d) (S.C.C.); R. v. Mauro, [1993] O.J. No. 386 (Ont. Gen. Div.) ; R.v. Sparling, [1988] O.J. No. 1877 (C.A.). I take from this the implicit submission that the court should not dilute the committal test to the "scintilla of evidence" test applicable on review. I agree with this position.

61. The applicable principles were exhaustively summarized by Mr. Justice Casey Hill in R. v. Foster, [2008] O.J. No. 827 (S.C.J.). The case was a certiorari application involving the discharge of an accused charged with robbery based on circumstantial evidence. Hill J. in his customary format, discussed the function of the preliminary hearing court in the context of circumstantial evidence. The same issues are in play in this case. If there was a controversy on the standard of review, it's also resolved in his pithy statement of the applicable principles. I can do no better than repeat them in their entirety commencing at paragraph 31:

Role of the Reviewing Court

(1) The court reviewing by certiorari a committal for trial exercises limited authority for intervention:

(i) The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. Deschamplain (2005), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at 10 ; R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.) at 10, 13; R. v. Dubois (1986), 25 C.C.C. (3d) 221 (S.C.C.) at 224, 229-30.

(ii) The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin, [2004] O.J. No. 791 (C.A.) at para. 2 ; R. v. Tuske, [1978] O.J. No. 1253 (C.A.) at para. 3 ; R. v. Coke, [1996] O.J. No. 808 (S.C.J.) at paras. 12-13 .

(iii) Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge "reached a conclusion different from that which the reviewing court would have reached": R. v. Russell, at 10.

(2) While an erroneous ruling regarding the admissibility of evidence does not affect the preliminary inquiry judge's jurisdiction (Deschamplain, at 9-10; R. v. Fisher, [1987]O.J. No. 331 (C.A.) at 2), in the sense that the court has the right to be wrong (an error of law) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute such errors:

(a) committal where no evidence exists on an essential element of the crime charged (R. v. Skogman (1984), 13 C.C.C. (3d) 161 (S.C.C.) at 168) or, equally arbitrarily, failing to consider the whole of the evidence, in deciding whether there is some, as opposed to no, evidence: R. v. Deschamplain, at 11, 14-6; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.) at 233-5 ; R. v. Thomson (2005), 74 O.R. (3d) 721 (C.A.) at para. 11

(b) failure to observe a mandatory provision of the Criminal Code : R. v. Deschamplain, at 10; R. v. Forsythe (1980), 53 C.C.C. (2d) 225 (S.C.C.) at 229

(c) applying an incorrect test for committal and thereby "deciding an issue reserved to another forum": R. v. Dubois, at 230-2

(d) engaging in impermissible weighing of competing inferences: R. v. Sazant, at 234; R. v. Laframboise & Odette, [2007] O.J. No. 4212 (C.A.) at paras. 1 , 3; R. v. Clarke, [2002] O.J. No. 2340 (C.A.) at para. 4 ; R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 8 .

(3) Once the superior court of criminal jurisdiction exercising prerogative writ authority finds jurisdictional error on the part of the preliminary inquiry court, the court is "to assess the sufficiency of the evidence in order to determine the appropriate remedy": Laframboise & Odette, at para. 4.

Function of the Preliminary Hearing Court

(4) A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1)"[w]here all the evidence has been taken" at the preliminary inquiry"shall":

... if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial ...

(5) In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

(6) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial: R v. Savant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54, at 31. This committal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36; R. v. Monteleone (S.C.C.) at 198.

(7) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged - even if only a scintilla of evidence: (R. v. Martin, [2001] O.J. No. 4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (C.A.) at paras. 8 , 10) provided "it registers in the scales as any evidence at all within the Sheppard test" , [2002] 1 S.C.R. 869 (R. v. McIlwain (1988), 67 C.R. (3d) 393 (Ont. H.C.J.) at 309 ( McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4 ; and in R. v. Campbell at 165)). "To be logically relevant, an item of evidence does not have to establish on any standard, the truth or falsity of a fact in issue" - it need only "tend to increase or diminish the truth or falsity of a fact in issue" - "there is no minimum probative value required for evidence to be relevant": R. v. Arp (1999), 129 C.C.C. (3d) 321 (S.C.C.) at 338 .

(8) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. Deschamplain, at 9; R. v. Sazant, at para. 18 ; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172 .

In other words, the preliminary inquiry is not "a forum for litigating the merits of the case against the accused": R. v. Russell, at 11. Where more than one inference can be drawn from the evidence"only the inferences that favour the Crown are to be considered": R. v. Savant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence: R. v. Savant, at para. 16.

(9) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence to the extent of assessing "the reasonableness of the inferences to be drawn from the circumstantial evidence": R. v. Arcuri, at 35.

(10) In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact - a judge is not to ask whether facts ought to be inferred and is not to make "determinate factual inferences": R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J. No. 326 (C.A.) at para. 5 . A preliminary hearing court is not to apply the rule in Hodge's Case to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), 27 C.C.C. (3d) 97 (S.C.C.) at 107.

Nature of Circumstantial Evidence

(11) In a preliminary hearing, the prosecution leads relevant evidence in the form of primary facts. From these factual circumstances, the Crown may seek to establish the existence of a fact in issue, i.e. identity of the perpetrator, by submitting that an inference may reasonably and circumstantially be drawn from the primary facts - there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri, at 31-2; R. v. Cinous, at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense" (R. v. Figueroa et al., at para. 33; U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307) at times described as informal judicial notice: McWilliams' Canadian Criminal Evidence (4th ed.), S.C. Hill, D. Tanovich, L. Strezos (Aurora: Canada Law Book, 2003) at 23-6 to 16. The inferences to be drawn will depend on the nature of the primary fact, the fact that is sought to be inferred from it, the position of the parties, and the totality of the evidence: R. v. Figueroa, at para. 33 . A single item of circumstantial evidence may be the only evidence of an essential element of the offence: R. v. Arp, at 353.

(12) Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209 . A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa et al., at paras. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87 . "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307. The same point is made in C.P.R. Co. v. Murray, [1932] S.C.R. 112, at 117, in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45 :

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. Indeed, as Lord Shaw said in Marshall v. Owners of SS. Wild Rose [ 26 T.L.R. 608 ; [1910] A.C. 486 , at 494.]: "The facts in every case may leave here and there a hiatus which only inference can fill." The true doctrine in the matter is clearly stated by Lord Penzance in Parfitt v. Lawless [(1872) L.R., 2 P.&D., 462, at 472.]: "It is not intended to be said that he upon whom the burthen of proving an issue lies is bound to prove every fact or conclusion of fact upon which the issue depends. From every fact that is proved legitimate and reasonable inferences may, of course, be drawn, and all that is fairly deducible from the evidence is as much proved for the purpose of a prima facie case as if it had been proved directly." I conceive, therefore, that in discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.

(13) Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94 . A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at paras. 21-31 . The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, at para. 9.

62. It's clear to me that the parties are citing the same Sheppard test requiring "some evidence" on an essential element charged, which simply subsumes the 'scintilla of evidence' standard. Put differently, there must be more than just a 'scintilla of evidence' to commit.

A. Identification Evidence

63. Since the core issue in this case will be whether there is sufficient circumstantial evidence of identification to commit, the guiding principles are also worth repeating. In the seminal case of R. v. Nikolovski, [1996] 3 S.C.R. 1197 , the Supreme Court of Canada observed some of the inherent frailties of identification evidence and instructed courts to proceed with caution. In paragraph 28, the Court said this about the use that can be made of photographs or videotapes which is apt in this case:

Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

64. In this case, a significant part of the Crown's case rests on inferences and conclusions that can be formed by the photographic evidence as images were taken from all the robberies. Exhibit 28 captures these photos, in colour, as a demonstrative aid. As explained below, the images also assist in advancing the similar fact evidence and the evidence linking Mr. Moore to the alleged robberies.

B. Similar Fact Evidence

65. There is no direct evidence of identification that implicates either defendant. The Crown seeks committal based on the cumulative effect of the circumstantial evidence and the inferences to be drawn from them. In addition, the Crown relies on evidence from each count in the information as evidence of similar acts supporting the inferences sought. The applicable principles involving similar fact evidence in this context were helpfully summarized by Watt J.A. in R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.) beginning at paragraph 48 :

48 Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus falls upon the prosecutor to satisfy the trial judge, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 , at para. 55 ; R. v. Arp, [1998] 3 S.C.R. 339 , at paras. 42 and 51 .

49 Probative value depends upon the nexus established between the evidence of similar acts and the offence that the evidence is offered to prove. The degree of similarity required to permit the introduction of evidence of similar acts is a function of the issues in the case, the purpose for which the evidence of similar acts is being offered and the other evidence adduced at trial: Handy at paras. 76, 78 and 79 ; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 , at para. 48 .

50 Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp at para. 43 .

51 In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45 ; Handy at para. 81 .

52 The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 , at para. 21 . This phase of the inquiry into admissibility may be characterized as the "similarity" issue.

53 The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place; ii. similarity in detail and circumstances; iii. number of occurrences; iv. any distinctive feature(s) unifying the various incidents; v. intervening events; and vi. any other factor that tends to support or rebut the underlying unity of the similar acts. Handy at para. 82 ; Perrier at para. 22 .

54 For the most part, decisions about the admissibility of evidence do not involve evaluations of the probative value or weight of the evidence. The judge does not embark upon any appraisal of quality, weight or reliability of the evidence in deciding on admissibility: Arp at para. 47 . But, in deciding on the admissibility of evidence of similar acts, where the admissibility rule involves balancing probative value and prejudicial effect, the trial judge must, to some extent, venture into territory not usually travelled. This consequence is inevitable where admissibility depends on weight: Arp at para. 47 . The credibility of the evidence of similar acts is a relevant factor for the trial judge to consider in deciding on admissibility: Handy at para. 134 .

55 The countervailing consideration, prejudice, includes both "moral prejudice" and "reasoning prejudice." Moral prejudice is concerned with the potential stigma of "bad personhood" the prospect that the verdict will be based on prejudice rather than proof: Handy at paras. 42, 100 and 139 . Reasoning prejudice has to do with distraction of the trier of fact, especially a jury, from their proper focus on the offence(s) charged, aggravated by undue consumption of time by the introduction of evidence of similar acts: Handy at paras. 100, 144 and 146 .

56 The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp at para. 51 . The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by a judge sitting without a jury.

The Relevance of "Linkage" Evidence to the Admissibility Decision

57 The "similarity" issue that lies at the threshold of the decision about the admissibility of evidence of similar acts is to be based on an examination of the acts themselves. After all, it is the high degree of similarity between or among the acts that overcomes the improbability of coincidence: Perrier at para. 21 ; Arp at para. 49 . In general, the "similarity" issue is to be decided without reference to evidence linking the accused to each alleged similar act ("linkage evidence"): Perrier at para. 21 ; Arp at para. 49 .

58 The general rule that linkage evidence is not to be taken into account in determining the "similarity" issue is not unyielding: R. v. Woodcock (2003), 177 C.C.C. (3d) 346 , at paras. 80-81 (Ont. C.A.) . There may be cases where examination of the linkage evidence should form part of the "similarity" decision: Woodcock at para. 81 . Further, in many cases, the fact that a trial judge first considers whether there was any evidence linking the accused to the alleged similar acts will not amount to reversible error: Woodcock at para. 82 . It is not often easy to draw a bright line that distinguishes between evidence that demonstrates similarity among the acts and evidence that shows an accused's involvement in them.

59 Like the "similarity" requirement, which indicates a common perpetrator of the similar acts, a demonstrated link between the accused and the similar acts is also a precondition to admissibility: Arp at para. 54 ; R. v. Sweitzer, [1982] 1 S.C.R. 949 , at p. 954 . In a trial on a multi-count indictment, the link between an accused and an individual count will be relevant to the issue of identity on the other counts that disclose the required degree of similarity in the manner in which those offences were committed: Arp at para. 53 . The requirement that there be a link between the allegedly similar acts and the accused demands that there be some evidence upon the basis of which the trier of fact can make a finding that the similar acts were those of the accused. Evidence of mere opportunity to commit the similar acts is not sufficient: Arp at paras. 54 and 57 ; Harris v. Director of Public Prosecutions, [1952] A.C. 694, at 708 (H.L.) .

IV. Positions of the Parties

66. Counsel provided me with written material along with jurisprudence supporting their positions. Distilled to their core submissions, they are as follows.

67. Mr. Malleson submits that committal should follow on all the remaining counts based on:

(a) a cumulative review of all the evidence which supports reasonable inferences that implicate Mr. Moore and Ms. Stanojevic as the perpetrators; (b) there are similarities between the robberies which are "strikingly similar" to render them admissible as similar act evidence against both parties; (c) if necessary, the link between the robberies is strong. In particular, a reasonable inference of possession attaches knowledge and control to Mr. Moore to the seized items found in the vehicle and Ms. Stanojevic's bedroom; and finally (d) the alleged exculpatory evidence does not necessarily mean the incriminatory inferences are not available.

68. Mr. Wilson on behalf of Mr. Moore submits that Mr. Moore should be discharged on all the counts. In support of this position he responds to the Crown's submissions as follows:

(a) the sought inferences on the circumstantial evidence are not permissible as they are based on conjecture and/or speculation. This involves the following pieces of evidence: (i) the shoeprint evidence; (ii) the bandana evidence; (iii) the alleged discarding of evidence on August 21, 2014; (iv) the alleged stake out of Subway on August 13, 2014; (v) the sweater that changes colour; (b) the similar fact evidence is not admissible as it does not have a high degree of similarity to have the requisite probative value; (c) there is insufficient linkage evidence, which he submits is premised on an unavailable inference of possession of the impugned items; and finally (d) there is exculpatory evidence of identity which points away from Mr. Moore as the perpetrator.

69. Mr. Olver on behalf of Ms. Stanojevic, submits that the circumstantial evidence does not support the inferences that the Crown seeks to draw. In particular, the sought inferences are not "objectively reasonable". In submissions, I clarified with Mr. Olver that his use of "objective reasonable" was not a request to import a different standard to the limited weighing of inferences where there is circumstantial evidence. His position appears to be that the Crown's inferences are simply conjecture and/or speculation and therefore impermissible.

V. Analysis

1. The Circumstantial Evidence

70. Mr. Malleson submits that a jury could reasonably infer that Mr. Moore committed the five robberies, which in turn, would support the inferences against Ms. Stanojevic on the two remaining counts. In support, he cites the combined effect of the inferences from the following pieces of circumstantial evidence as well as the admission of the similar fact evidence.

(a) The shoeprint evidence

71. Mr. Malleson submits that the shoe prints are distinct which supports an inference that the prints from the robberies all came from the shoes attributed to Mr. Moore. On arrest, Mr. Moore was wearing black/grey shoes. As noted above, the impressions from this shoe were tested against the partial shoe print left at the scene of the robberies. Det. Hamid testified that based on general class characteristics, they were similar. Mr. Malleson points to 11 features (at paragraph 22 of his submissions) as to why this evidence is compelling. Mr. Wilson submits that the sought inference is impermissible speculation relying on the principles in R. v. Portillo, [2003] O.J. No. 3030 (C.A.) . In Portillo , supra , Doherty J.A. stated that the "footwear evidence could assist in proving either of the factual inferences needed to give the evidence relevance, only if the Crown could first prove the other factual inference for which the footwear evidence was offered. There, the evidence connecting the footwear to the appellant was weak as the shoes were found in the vicinity (not on the person) of Mr. Portillo. Mr. Wilson submits the Crown is engaging in the same impermissible speculation.

72. In my view, Portillo does not assist the defence because there, there was no evidence that sufficiently linked the shoes on which the expert opinion was based to the defendant. Here that link is present as Mr. Moore was arrested wearing the shoes which were used to compare the partial impression. Here, the suspect left shoe prints on the August 9, 10 and 21 robbery scenes. Det. Hamid sent the August 10 impression to the RCMP SICAR database, which reported that the impression was consistent with two of 32,000 sole patterns in the database. One of those two sole patterns matched the shoeprints from the other two robberies (August 9 and 21). The upshot of this is that Det. Hamid could say that based on the general characteristics of the seized shoes when compared with the partial impressions, the impressions were similar. In other words, she could not definitively connect the impressions to the shoes worn by Mr. Moore but that doesn't mean there was no connection at all between the shoes and Mr. Moore.

73. Mr. Wilson further contends that a jury could only consider the partial shoe prints and to go any further invites speculation. While I tend to agree that the footwear impression evidence alone would not support an inference of identity, it is an inference that a jury could evaluate in the context of the entire case. Here, unlike Portillo, supra , the impressions were tested against the shoes worn by Mr. Moore shortly after the August 21 robbery. The jury will also be in a position to consider the partial print with the seized shoe as well as the stills, which depict Mr. Moore wearing similar shoes (in the Shell Gas station surveillance). The inference becomes stronger when other pieces of evidence are considered. There is also further evidence of some rarity to the shoe print as testified to by Det. Hamid. The footwear impression evidence is simply some circumstantial evidence and it will be for the jury to assign how much weight, if any, to attach to evidence.

74. The more important evidence involves the similarities between the shoes depicted in the surveillance photos with those worn by Mr. Moore on arrest. In this case, the images show the suspect wearing shoes, in addition to the footwear impressions that were left behind. The compendium assembled by Mr. Williams shows the suspect wearing shoes that a jury can infer are black/grey with white laces and white soles. Further, the gas station surveillance photos of Mr. Moore on August 13 (one day after a robbery) and eight days before another robbery (August 21) show shoes that a jury can infer are black/grey and similar to those worn by Mr. Moore on his arrest. This evidence was not available to the trier of fact in Portillo and will not involve a jury in filling in gaps.

75. I find that there is a reasonable inference on the evidence that the seized shoes match those worn by the suspect during the robberies. It is not rife with speculation but at the same time, it is not overly compelling either. It is simply some evidence along with the rest of the evidence a jury can consider.

(b) The Bandanna Evidence :

76. Mr. Malleson submits that an inference arises that Mr. Moore possessed a bandanna with skulls on it in August 2014 based on the evidence of Jessica Stanojevic and the various witnesses who described the bandanna. Mr. Wilson submits that this only holds true if all witnesses were consistent in their description. I disagree. Various witnesses described the suspect wearing a black bandanna with white imaging including possibly skulls"white things" or a skeleton design. A jury can accept some, all or none of the evidence and decide how much weight to give it. I find that a jury can reasonably infer that the bandanna described by Jessica Stanojevic and the bandana worn by the suspect could be the same. It need not be an "all or nothing" proposition. A jury can arrive at different conclusions for each count.

77. It would not amount to speculation because it's not the case that there is no evidence at all that attributes possession to Mr. Moore. A jury could impute recent possession by the combined effect of the evidence of Jessica Stanojevic that she saw Mr. Moore in the backyard of her home at some point and the fact that he was seen with her sister on August 13, 2014 and again on August 21, 2014. Thus, while she can't place Mr. Moore in her home at the relevant times, the jury can consider the other evidence connecting the couple to arrive at their conclusion. This isn't the case where there's an absence of any evidence connecting Mr. Moore to Ms. Stanojevic (absent the arrest).

(c) Alleged Discarding of Evidence

78. Mr. Malleson submits that a jury could infer that both defendants discarded gloves, a bandanna, a knife and sunglasses after the Subway robbery on August 21 2014. I agree with the position advanced by the defence that to do so would amount to impermissible speculation. The evidence on this issue was that the police searched for the items but found nothing of interest. There is no evidence that the police saw the defendants discard anything. The time span to do so was short and the proven facts do not support this position. Such an inference is not available to a jury and amounts to impermissible speculation.

(d) Alleged Stake Out on August 13 2014

79. Mr. Malleson submits that a jury could infer that the defendants were "staking out" the premises during surveillance. I agree with the defence position that the evidence of "staking out" is weak and invites some speculation. The proven facts are that the car (4 door white Mazda) driven by the defendants was driven into a plaza that contained a Subway. It did not stop at the Subway nor did the parties enter the restaurant. Whatever the motive of the defendants (in that vehicle) might be, it is some evidence that a jury could consider, along with the rest of the evidence in deciding how much weight, if any, they will give to it. I do not find that it rises to the level of ascribing some planning.

(e) Sweater that changes colour

80. Mr. Malleson submits that an inference can be drawn by the jury that the hoodie observed on the August 9, 10 and 12 robberies is the same sweater and that this sweater is black or dark blue. The jury could infer that the colour changes due to the effect of the video. The defence objected to the admissibility of this evidence. In my ruling, I held that the experiment conducted by Mr. Williams did not meet the test of admissibility given the lack of similarity between the replication and the original event. (R.v. Collins, [2001] O.J. No. 3894 (C.A.) This evidence is not before me, thus I cannot consider it in my assessment of all the evidence. I'm mindful that a reviewing court may disagree: R. v. Fisher, [1987]O.J. No. 331 (C.A.) .

81. That being said, the suspect is seen wearing a dark hooded sweatshirt on August 10 with a light coloured line down the centre. [Exhibit 28, Exhibit 2, Exhibit 40(b)] A jury could infer that this is a zipper. On arrest, Ms. Stanojevic is photographed wearing a black hooded sweater with a zipper and the search of the red Honda Civic revealed a black hoodie with a dark flap and a zipper. [Exhibit 28, Exhibit 7]. A jury could find that they are the same.

(f) The Gloves

82. Mr. Malleson submits that a jury could infer that the gloves located at 63 Hills Rd. are the same ones worn by the suspects in the surveillance images. Mr. Wilson disagrees pointing to differences. In my view, a jury could reasonably infer from the images the following: that the subject's hands are covered by a black object on August 9, show black gloves with white markings on August 10, show hands covered on August 11 and most significantly, on August 12 the hands are clearly shown wearing a glove with white markings. Only the thumb and left index finger are shown. On August 21, 2014, the suspect is also shown wearing what appears to be a black glove. The gloves seized from the residence show tips of the left thumb, index and middle fingers removed. Similarly, they show the tip of the right finger removed. In my view, a jury could reasonably infer that the seized gloves and those shown worn by the suspect are one and the same. It would not be speculation to arrive at this conclusion.

2. The Similar Fact Evidence

83. The issue in this case is whether there's some evidence on the question of identification that a reasonable jury properly instructed could return a verdict of guilty. Again, there is no direct evidence implicating either defendant. Rather, the Crown asks the court to commit based on the cumulative effect of all the circumstantial evidence, which would leave the jury with a reasonable inference that Mr. Moore committed the robberies and Ms. Stanojevic was a party to them by driving the get-away car. To support its position, the Crown seeks to admit evidence of similar acts. No such application was made in relation to Ms. Stanojevic despite the Crown stating as such in their written submissions. I will return to this later in my analysis as not much may turn on this, especially, if I am satisfied that the similar fact evidence is admissible against Mr. Moore which would permit the Crown to rely on certain inferences vis a vis Ms. Stanojevic.

(a) Is there evidence of similarity between the counts?

84. In addition to the above principles cited by Watt J.A. in MacCormack , supra , in R.v. Woodcock, [2003] O.J. No. 3259 , the Ontario Court of Appeal explained how a trial judge must engage in the preliminary determination of assessing similarity in the impugned acts. The court quoted from Justice Cory in Arp, supra at paragraphs 77-78 :

[W]here identity is at issue, ordinarily the trial judge must first review the manner in which the similar acts were committed in order to determine whether it is likely that the alleged similar acts were all committed by the same person. It is useful to repeat the salient part of Cory J.'s direction at p. 342:

Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed - that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count) [emphasis added].

78 Justice Cory thus twice described the trial judge's review of the manner in which the similar acts were committed as a "preliminary determination". He then further commented at p. 344:

Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question.

In determining whether similar fact evidence should be admitted to prove identity, the trial judge must have regard to the manner in which the alleged similar acts were committed. In general, evidence linking the accused to each alleged similar act should not be part of this evaluation . ... In other words, the similarity of the acts indicates whether one person committed the crimes: in most cases, evidence as to the accused's connection to each similar act indicates whether the accused committed the crimes. Only after the trial judge has considered the manner of the commission of the similar acts and is satisfied that there is evidence which could lead the jury to conclude that all the acts were committed by one person should he or she admit the evidence related to each act for the jury's consideration, including the evidence of the accused's involvement in each similar act [underlined emphasis in first and third paragraphs in original; other emphasis in bold added]

85. Following the principles enunciated above, two points are worth noting. First, as a threshold issue, the test for admission that the Crown must meet is on a balance of probabilities, not proof beyond a reasonable doubt. Second, to warrant admission, the evidence can reveal a unique trademark or signature common to all incidents, but a signature is not required in every case. A number of significant similarities in combination may by their cumulative effect warrant admission: Arp at para. 45 ; Handy at para. 81 .

86. Mr. Malleson submits that the robberies in this case exhibit a high level of similarity. Mr. Wilson disagrees by pointing to the dissimilarities and makes a compelling case in support of his position at paragraph 36 of his written submissions. With respect to the defence position, I disagree. In my view, viewed cumulatively , I find that the robberies exhibit many significant similarities.

87. As Watt J.A. noted, the similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors. He provided a helpful, non-exhaustive list of factors to consider:

(i) Proximity in time and place . In this case, all robberies were committed over the span of 12 days in the Ajax/Pickering area. Of significance, four targeted Subway restaurants with one at a Dollarama retail store. Det. Airey testified that each location was in a large commercial plaza close to Highway 401. (Exhibit 35). It is significant that the first four robberies were committed on consecutive days (August 9, 10, 11, 12). Mr. Wilson points to the differences in times (approximately 7 p.m. on two occasions) and after midnight on 3 occasions. I do not view these as significant dissimilarities.

(ii) Similarity in detail and occurrences : In all four Subway robberies, the subject was described as wearing a dark hoodie (in one a black/white shirt), sunglasses and an object covering his face. In three of the four Subway robberies the object covering the subject's face is described to have skulls present, the suspect is described with a box cutter on four occasions (in one, it's described as orange), there's the presence of an object attached to the suspects' belt and the suspect leaves footprint impressions including on two occasions jumping on the counter reaching for the till. In my view, all of these details when cumulatively viewed are significant similarities rendering the probability of coincidence unlikely. The circumstances are also similar such that the suspect began by locking the front door (on two occasions), taking money (all occasions) and leaving via the front door. No violent gestures are made. In all robberies, only one employee is present. The significant differences include the suspect jumping on the counter on two occasions (not all), the description of the sunglasses (silver and black) and description of the white male (on one occasion "big/fat"). In my view, these differences are neither numerous or substantial.

(iii) Number of Occurences : The Subway restaurant is robbed on four occasions within a 6.5 km radius with a lone Dollarama store. While this dissimilarity breaks the trend, the similarities between the Dollarama robbery (sunglasses, clothing with skulls and the suspect locking the door) connect this incident in other significant ways to the Subway robberies. In other words, there's nothing distinct about the Dollarama event that weakens the uniqueness of the robberies.

(iv) Distinctive Features Unifying Various Incidents : In addition to the above, in three of the Subway robberies, the suspect had a yellow box cutter. I have reviewed the photographic images and I'm satisfied that the shoes being worn by the suspects are strikingly similar (black/grey with white laces and white soles). I also find that that the suspect in three robberies was carrying a small pouch attached to his belt.

(v) Intervening Events : The first four robberies were committed in a very short time span (Aug 9, 10, 11, 12). The next Subway robbery is on August 21, some 9 days later. This alone does not weaken the requisite level of similarity given the presence of other factors on the August 21 robbery, which bears similarities to the four preceding robberies.

(vi) Any other factor supporting or rebutting the unity of the acts : While there is no requirement that the occurrences exhibit a "trademark" or significant event, here the presence of a box cutter and locking the front door (on two occasions) come very close to qualifying as such. As noted by Cory J. in Arp, supra , if there is such a factor, the probative value of the evidence becomes high. While they don't exist in all of the cases, when considered with other features, they become significant making the probative value of the evidence high. Moreover, the positive identification of Mr. Moore wearing black/grey shoes on August 13 2014 is significant in supporting the unity of the acts (see discussion below).

88. In my view, when cumulatively considered, the similarities between the robberies are so similar, it reasonably follows that the same suspect committed them. The modus operandi in all of them is strikingly similar despite some minor variations. As cautioned by Binnie J. in Shearing at para. 60 "dissimilarities can always be exaggerated and multiplied" leading to distortion. I do not find that the dissimilarities identified weaken this preliminary consideration of the evidence.

89. Watt J.A. goes on to explain that in general"the similarity issue is to be decided without reference to evidence linking the accused to each alleged similar act". (MacCormack, supra at para. 57 ). There may exceptions to this general rule where examination of the linkage evidence should form part of the "similarity" decision. To do so would not amount to reversible error. Mr. Malleson submits I need not go this far. I disagree. On the record before me, this is a prime case where as a threshold issue, given the gap between the fourth and fifth robberies (August 12-21), examining the connecting events of all robberies would be important. For reasons cited below, I find that there is evidence linking Mr. Moore to all the robberies and more so than those in MacCormack, supra .

(b) Is there evidence of "linkage?"

90. Mr. Wilson forcefully submits that there is an absence of linkage evidence. With respect, I disagree. On arrest, Mr. Moore was wearing black/grey DC shoes with white laces and white soles, blue jeans, in possession of a rabbits' foot and a light brown leather knife pouch on his belt. His hair was very short but visible. In the red Honda Civic, $195.00 cash was found in a wallet and a black hooded sweater with black/red checkered markings but not in plain view. As noted above, a yellow box cutter, gloves and sunglasses (described by Mr. Sathwara) were not found.

91. Mr. Wilson anchors his submission that the evidence linking Mr. Moore to the robberies doesn't exist because there's no evidence to support that he was in possession of them. These items and my assessment of them are below:

(i) The shoes – The seized shoes (black/grey with lighter coloured laces and white soles) are similar to those worn by the suspect on the various stills of the robberies. For example, Exhibit 28, tab 1, shows the suspect wearing black shoes with white laces. In other stills, the comparison is even stronger. (See August 12, 2014 as there is a dark toe box and lighter laces and white soles. [Exhibit 28, p.19, 20 Exhibit 4]. More significantly, Mr. Moore is seen wearing very similar shoes on August 13, 2014 which is relative to the robberies. While it may not be possible to say with exact certainty that the seized shoes are the same as seen on the various surveillance images, I find this to be some evidence of a link to them.

(ii) The knife pouch – The seized knife pouch is small and brown leather. On the stills of August 9 and 21, 2014, the suspect is wearing an object at the rear of his right beltline. I find that this is some evidence of the items being the same without resorting to speculation and some evidence that links him to the seized item.

(iii) The bandanna – This item was not seized. The evidence of linkage comes from Jessica Stanojevic who testified that Mr. Moore owned a similar bandanna. She could not say when she saw him with it relative to the robberies.

(iv) A dark coloured hoody – A dark hoody was seized from within the Honda Civic but also on the person of Ms. Stanojevic. There's nothing distinctive about it's description in the various stills and I find that comparing the various photographs, a conclusion that they are the same can be reasonably reached. The fact that Mr. Sathwara could not comment on the flap covering the zipper does not dilute its' link. A unifying feature is a long zipper which appears in almost all the stills. It also has string around the neck with no knots. The search of Ms. Stanojevic's room resulted in the seizure of a similar item. There is some evidence that attributes possession to him given his status as boyfriend with her.

(v) Gloves – A pair were seized from 63 Hills Dr. These are distinctive such that they are construction type "husky" gloves and are black with white markings. The images from August 10, 2014 show the suspect wearing black gloves with a similar logo and velcro strap. [Exhibit 28, tab 3] It is noteworthy that a witness describes similar gloves. Similar gloves are seized from the bedroom. Despite some differences, I find that it can be reasonably concluded that they are the same and they are linked to Mr. Moore.

(vi) A light coloured sedan –Mr. Wilson and Mr. Olver both submit that the inference from the observed car on the stills (August 12, 2014) and the surveillance on August 13, 2014 and Ms. Howard's car is entirely speculative. While I agree that the inference is not the strongest one, there is a link to a 4 door white Mazda given the stills which show him pumping gas at the Shell gas station as well as the traffic stop.

(vii) The red Honda Civic . Mr. Wilson and Mr. Olver both point to the distinction between the description of the 2 door vehicle described by Mr. Sathwara who said it had 4 doors. Again, while not the strongest piece of evidence, it is reasonable to conclude that it was the same vehicle by considering the short amount of time between the robbery and the arrest, the direction and location of the vehicle when it was stopped and the time of day where not many cars would be on the road among other factors. As a passenger, there is some evidence of constructive possession given the context of their entire relationship, including him pumping gas into her mother's car almost a week before the August 21 incident. While the evidence of possession against Ms. Stanojevic is much stronger given her position as the driver, it is not the case that there is no evidence of possession against Mr. Moore. An indirect link is present.

(viii) The money – Mr. Sathwara described the suspect taking a $100 bill. On arrest, a $100 bill was found in a wallet in the car. [Exhibit 21] While it can't be proven that the bills are one and the same, it can be concluded, considering all the circumstances, that they are the same – and found in a wallet in a car described by him. The fact that Mr. Sathwara didn't point to $20 bills taken or did say there was more than 1 $5 bill, which were found among the money does not dilute the link either. It's location within the car also doesn't weaken the evidence of possession, given the factors cited above.

(ix) A rabbit's foot – Mr. Wilson submits that that the photos do not show Mr. Moore in possession of a rabbit foot found on his possession on arrest. In my view, it is reasonable to conclude that the stills show an item dangling from the male's jeans on his right leg bearing similarity to the black rabbit's foot seized from Mr. Moore on arrest. [Exhibit 28, tab 9, s.540 materials]. While the rabbit foot is not described by others in the other incidents, it does provide a link to one of the robberies.

(x) The jeans – Mr. Wilson highlights differences in the jeans to dilute the link. Again, a reasonable conclusion can be that they are the same. The jeans are a lighter shade of blue (not dark blue denim or a unique colour).

(xi) White male with shaved head – I agree that there is nothing unique about this description but it is some evidence of a link (i.e. it rules out individuals with darker skin tones and distinctive personal features such as hair styles and the like.

(xii) The sunglasses : On August 10, 12 and 21, 2014, the suspect is seen wearing sunglasses. Similar glasses are seized from Ms. Stanojevic's bedroom. [Exhibit 28, p.17, Exhibit 2]. Given my comments about linking Mr. Moore to her bedroom, this is some evidence of a link to the sunglasses as well.

92. Mr. Wilson submits that there is no evidence to prove that Mr. Moore was in possession of these items and thus he can't be linked to them. In particular he points to the evidence of Ms. Howard that she didn't know if Mr. Moore had been staying at the home during August 2014 and only saw him in the backyard on three occasions. In my view, it is appropriate to consider the totality of the evidence to draw an inference of knowledge and control and thus possession. These are (i) Mr. Moore was in a romantic relationship with Ms. Stanojevic and still with her at the time of arrest, (ii) Mr. Moore had in the past slept in her bedroom, (iii) a wallet was found in her bedroom that contained numerous pieces of his identification, (iv) some personal items were on a table, (v) a sweater sized XXL was located. While there's no evidence that this sweater belonged exclusively to Ms. Stanojevic, it is reasonable to conclude that given their relationship, it was shared.

93. A similar position is taken with the contents of the Honda Civic including the black hooded sweater. As a passenger, it is reasonable to impute knowledge and control of the items within the car. While the inference is stronger that Ms. Stanojevic as the driver of the car and the fact that it was registered to her sister is stronger, some evidence of possession relating to Mr. Moore is present. Mr. Sathwara described the suspect as wearing a black hooded sweater with black and white checkered spots. The seized sweater is black with a hood and according to Cst. Todorsvki, had black and red checkered spots. He also described the suspect taking a $100 bill, which was found in the wallet. Although there's no evidence that the wallet was Mr. Moore's, it is reasonable to conclude that he was in constructive possession of it given their relationship.

94. Mr. Wilson argues that in MacCormack, supra, there was direct evidence of possession and therefore a direct link between the accused and the robberies. Here, while there is no direct evidence relating to the items found in Ms. Stanojevic's bedroom, it is nonetheless reasonable to conclude that an inference of possession arises based on the whole of the evidence and thus an indirect link exists to connect him to the robberies. Moreover, there is direct evidence of possession relating to the items found on his person upon arrest, which a court can consider as a direct link.

95. Mr. Wilson cited the decisions in R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (C.A.) and R. v. Willis, [2010] O.J. No. 6015 (C.A.) as cases where possession wasn't proven in similar circumstances that couldn't link the accused to the impugned items. He further argues that in cases where courts have found unreasonable verdicts based on insufficient evidence of possession, a similar analysis is to be undertaken on the test for committal"in that there must be some evidence led capable of supporting a finding of guilt beyond a reasonable doubt". (Defence submissions, paragraph 45).

96. In my view, reliance on these cases is misplaced because the analysis of linkage evidence in the context of a similar fact application is on a standard of balance of probabilities, not proof beyond a reasonable doubt. As a threshold issue, the Crown need only meet their burden on a balance of probabilities to warrant admission. I was not pointed to any authorities that stand for the proposition that at this stage of the analysis, the Crown needs to prove a link beyond a reasonable doubt. The threshold issue of admissibility precedes the ultimate evaluation of the evidence, which is done by the trier of fact, considering all the admissible evidence (including the similar fact evidence if admitted). There need only be some evidence of a link on the requisite standard.

97. Moreover, what is distinctive about this case is that apart from the items seized from Mr. Moore on arrest, there is other evidence which links him to being in possession of the 4 door white Mazda, blue jeans and most significantly, the distinctive black/grey shoes on August 13, 2014 when he is identified as pumping gas in the vehicle. Mr. Wilson did not challenge this positive identification, nor do I think it's not obvious that it is Mr. Moore seen on this occasion. This identification is further evidence that links him (in some ways) to the robberies, along with the seized items.

98. Mr. Wilson's submission appears to be that the inferences, when viewed as a whole, don't amount to the higher level of proof - but that's not my task. In my view, the Crown has met their burden on admissibility. On each robbery, Mr. Moore can be linked to them.

(c) Does the proposed similar act evidence have probative value which exceeds it's prejudicial effect?

99. The similar fact analysis must also balance the proposed evidence. Prejudice refers to both "moral prejudice" and "reasoning prejudice". Moral prejudice s concerned with the potential that a verdict will be based on prejudice rather than proof while reasoning prejudice refers to the distraction of the jury from the proper focus of the offence. It must be noted that it's important to look at the context of the case and the impact the evidence has on the two prongs of impermissible reasoning. In the moral prejudice calculus, a court will start with an assessment of whether there exists an impermissible inference, which might be drawn from the evidence potentially usurping the presumption of innocence to such a degree that it would result in a wrongful conviction based on other conduct. As noted by Watt J.A. in MacCormack, supra , in a case not involving a jury, prejudice may have an attenuated influence but this does not mean that the test for admission is attenuated. It remains the same. I appreciate that this too can change depending on the particular circumstances of the case as the assessment is a qualitative one, going to Charter protected presumption of innocence and trial fairness.

100. In a case where the evidence of similar acts is on a count to count basis, while the rule of admission remains the same, the jury (if one exists) will invariably be instructed that if they conclude that some or all of the alleged acts of the accused are so similar that that same person likely did some or all of them, then they may use the evidence of other similar acts, along with the rest of the evidence , in reaching their verdict in relation to any other charge. See R. v. Thomas (2004), 190 C.C.C. (3d) 31 (Ont. C.A.) at pars. 38, 43 (emphasis added). Given the context of this case, I find that the probative value of the proposed evidence at this stage is high and outweighs any prejudice.

101. On balance, the Crown has met their burden and the evidence of similar acts as it relates to Mr. Moore is therefore admissible.

3. The Exculpatory Evidence

102. A preliminary hearing court is entitled to consider all the evidence, including any exculpatory evidence. This is especially the case in a case where identification is a live issue. (Chartier v. Quebec (Attorney General.), [1979] S.C.J. No. 56 at p.17) The defence point to the following pieces of exculpatory evidence:

(i) the red Honda Civic is a 2 door not 4 door vehicle; (ii) no mask, sunglasses, gloves or box cutters are found in the vehicle on the person of either defendant; and (iii) the money found in the car is "materially different" from that alleged to be stolen.

103. I agree with the defence that the first two items above are exculpatory however I'm of the view that the third item (money) is largely neutral, not exculpatory. Mr. Sathwara testified about the money that was stolen and cannot testify about what was found in the wallet. The fact that other money was found along with a $100 and $5 bill does not make it solely exculpatory.

104. The lack of items found in the car or on their person (item 2) is admittedly a serious problem for the Crown's case but not necessarily fatal. I say this because on the Crown's theory, there was very little time for the items to be discarded and on this record, there's no evidence that they were in fact discarded. A search turned up no items found. While this may be an issue at trial, I'm of the view that this lack of evidence does not weaken the other inferences that are available to a jury. Considering all the circumstances, including what was found on their person, in the car and the evidence of the similar acts (against Mr. Moore), a reasonable inference exists supporting the conclusion that both Mr. Moore and Ms. Stanojevic were involved in the August 21 2014 robbery. I reach this conclusion despite there being no similar fact application against Ms. Stanojevic. Mr. Olver fairly concedes that the admission of evidence of similar acts vis a vis Mr. Moore could strengthen the inference of liability in relation to Ms. Stanojevic as a party to the August 21 robbery. I find that inference to be an available one.

105. Conversely, I do not arrive at the same conclusion regarding the liability of Ms. Stanojevic regarding the August 12 robbery. Mr. Malleson submits that a positive conclusion regarding Mr. Moore would mean that it would follow that Ms. Stanojevic should be committed as well. He cites the combined effect of the following inferences:

(i) the video surveillance which shows the light coloured sedan as the get away car based on where it was parked during the robbery (away from Subway); (ii) in August 2014, she was permitted to drive the 4 door white Mazda and (iii) Ms. Stanojevic is identified as driving the 4 door white Mazda on August 13 2014.

106. With respect, I disagree. In my view, the above does not support a reasonable inference that extends liability to Ms. Stanojevic. Even if I were to consider the admission of the similar acts involving Mr. Moore, it goes no further because there's no evidence that Ms. Stanojevic was driving a light coloured sedan on August 9, 10, 11 or 12. It would amount to speculation that because she was stopped in a 4 door white Mazda on August 13 that somehow a jury could find that she was driving the same car the day before. Her relationship with Mr. Moore alone does not strengthen this inference. A jury could conclude that somebody else drove a get-away car on August 12. There's very little evidence (if any) of a get-away car on August 9, 10, 11.

107. I note, parenthetically, that Mr. Malleson asked the court to stay the charges against Ms. Stanojevic on the August 9, 10 and 11 robberies. No reasons were cited, but in my view, nothing on the August 12 incident advances the analysis against her.

VI. Conclusion

108. In light of all the admissible evidence, including the evidence of similar acts and reasonable inferences that are available to a jury properly instructed, a jury could return a verdict of guilty against Mr. Moore. He will therefore be committed to trial on all the remaining counts. Similarly, Ms. Stanojevic will be committed to stand trial on count 1 (August 21) but discharged on count 5 (August 12). I'm inclined to discharge her as opposed to stay the charges as invited by Mr. Malleson, as a jury could not reasonably convict her of the other counts.

109. While this isn't the strongest circumstantial case for the Crown, it is not my function to test it on the standard of proof beyond a reasonable doubt. The Sheppard test is lower and in my view, has been met.

110. I commend counsel for the quality of their written materials and professional presentation of the evidence. It was of great assistance to the court.

Released: March 30, 2016

Signed: "Justice F. Javed"