WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
J.N.-F.
Before: Justice Peter C. West
Heard on: April 8, 9, 10, 29 and 30, 2019 and May 2 and 3, 2019
Reasons for Judgment released on: July 18, 2019
Counsel:
- Ms. S. Thompson — counsel for the Crown
- Mr. A. Alibhai — counsel for the young person J.N.-F.
WEST J.:
Introduction
1J.N.-F. is charged with offences arising from a home invasion on February 25, 2018, at 77 Church Street in Toronto, where Lawrence Brown, an 80 year old gentleman, was assaulted in his home, tied up, and his wallet and his GMC Envoy, license BNWF601 were stolen.
2The charges in respect of the home invasion are:
a. Break and Enter with Intent to commit Indictable Offence
b. Forcible Confinement
c. Robbery
d. Disguise with Intent
e. Aggravated Assault
f. Theft of Motor Vehicle
3J.N.-F. was charged with robbery in respect of the 4 Seasons Convenience store located on 378 Wilson Road in Oshawa, Ontario on February 25, 2018. He was also charged with disguise with intent and fail to comply with bail condition, namely house arrest.
4The GMC Envoy was recovered by police on February 27, 2018, and returned to Mr. Brown on February 28, 2018. It was stolen again between March 3 and 4, 2018. J.N.-F. was charged with this theft of a motor vehicle, as well as a charge of fail to comply with bail condition, namely, house arrest.
5J.N.-F. is also charged with a robbery of the Big Bee Convenience store in Hamilton, Ontario on March 4, 2018, as well as disguise with intent and fail to comply with bail condition, namely, house arrest.
6Finally, J.N.-F. is charged with a robbery of the Circle K Convenience store in Whitby, Ontario, on March 5, 2018, as well as disguise with intent and fail to comply with bail condition, namely, house arrest.
7The Crown brought two applications respecting the evidence led during this trial. The first was an application to admit hearsay evidence respecting the police statement of Lawrence Brown, who was deceased prior to commencement of J.N.-F.'s trial. Mr. Brown's death had nothing to do with the home invasion. The Crown seeks to admit Mr. Brown's written out-of-court statement for the truth of its contents. The second application is a similar fact application respecting evidence relating to the different counts as going to identity of the perpetrators.
8At the outset of the trial a number of admissions were made by the defence. Date and jurisdiction were admitted respecting the charges before the court. It was admitted the robberies occurred on the dates and at the places indicated by the witnesses. There was no issue raised respecting the continuity of any of the items seized.
9A certified copy of the recognizance that J.N.-F. was subject to was filed on consent and admitted as Exhibit 1. This recognizance contained a "house arrest" term with clearly defined exceptions. J.N.-F. was found to have been involved in the robberies set out in the charges it was agreed by defence counsel that his guilt of the fail to comply with bail conditions was proven beyond a reasonable doubt.
10No issue was taken with the expertise and qualifications of Ms. Jennifer McLean, Forensic Biologist at the Centre of Forensic Sciences, who was a DNA expert in the analysis of DNA.
11It was admitted that Lawrence Brown was deceased and his obituary was marked and filed as Exhibit 2.
Position of the Parties
12The defence submitted the main issue in this case is whether J.N.-F. was identified as being one of the individuals involved in the home invasion at 77 Church Street, York on February 25, 2018; the second theft of Mr. Brown's SUV on March 3, 2018 to March 4, 2018, and the three robberies of convenience stores (4 Seasons: February 25, 2018; Big Bee Variety: March 4, 2018; and Circle K Convenience: March 5, 2018). It was the defence position that the Crown had not proven beyond a reasonable doubt that J.N.-F. was involved in the home invasion at Lawrence Brown's home or the re-theft of Mr. Brown's SUV or that he was one of the two individuals involved in either of the three convenience store robberies.
13The defence argued the Crown was unable to prove the cell phone found in the blue checkered "JANSPORT" backpack was in fact J.N.-F.'s iPhone because of the number of emails and Apple IDs associated with the phone. As a result many of the pieces of evidence referred to by the Crown are not available to prove identity.
14Mr. Alibhai submitted Mr. Brown's police statement should not be admitted for the truth of its contents because the Crown was unable to establish threshold reliability. Further, it was the defence position the three convenience store robberies do not have the "strikingly similar" characteristics to warrant a finding of count to count similar fact.
15The Crown pointed to numerous pieces of direct and circumstantial evidence which prove beyond a reasonable doubt J.N.-F. was involved in the home invasion, the assault and forcible confinement of Lawrence Brown, the theft of personal property of Lawrence Brown and the GMC Envoy, license BNWF601 and that J.N.-F. was disguised with intent to commit those indictable offences; the re-theft of Mr. Brown's SUV; the Big Bee Variety store robbery and the Circle K convenience store robbery. It is the Crown's position that as a result of his involvement in the commission of those offences J.N.-F. is guilty of breaching the house arrest condition of his recognizance on four occasions.
16At the outset of the trial Ms. Thompson advised she would not be proceeded on Count 19 and as a result of no evidence being led on this charge it is dismissed.
17The Crown conceded in her submissions that the aggravated assault (Count 5) of Mr. Brown was not made out by the evidence called on this trial. However, if I find J.N.-F. was involved in the home invasion of Mr. Brown on February 25, 2018, the Crown submitted the offence of assault causing bodily harm was made out based on the photographs and the evidence of the officer's observations of Mr. Brown's injuries. All other charges respecting the home invasion were proven beyond a reasonable doubt if Mr. Brown's police statement is admitted for its truth, together with the evidence of the officers who dealt with Mr. Brown and the photographs of the residence at 77 Church Street, York, Ontario.
18Further, Ms. Thompson conceded there was no evidence that J.N.-F. was in possession of property obtained by crime (Count 14) in respect of the Big Bee Variety robbery. I agree with this concession and as a result this charge is also dismissed.
19The Crown looks to the use of similar facts to prove J.N.-F.'s involvement in the 4 Seasons Convenience store robbery on February 25, 2018.
Hearsay Application
Factual Background of Home Invasion at 77 Church Street, York, Ontario
20On February 25, 2018, at 1:30 p.m., two men forced their way into Lawrence Brown's home at 77 Church Street, York, Ontario. Once inside the home the two men immediately knocked Mr. Brown, aged 80 years, to the floor and assaulted him by kicking and punching him in the chest and face area. His hands were then zip-tied and his feet were taped with duct tape. His watch, items from his wallet and his black 2002 GMC Envoy, license BNWF601 with the keys were stolen. Mr. Brown was taken by ambulance to hospital where he was interviewed by P.C. Maria Abdoullaeva and a statement was recorded in writing in her police issued notebook.
21P.C. Abdoullaeva was in uniform. Mr. Brown told her at the hospital, after being triaged by the emergency nurse that he wanted to provide a statement. The officer testified Mr. Brown appeared to be very sharp and with it despite the assault perpetrated upon him. Mr. Brown understood all of the questions put to him by the officer and his answers were responsive. The statement took about 45 minutes to complete because of interruptions by hospital staff. She attempted to record everything Mr. Brown said and read the statement back to him before he signed it. She asked Mr. Brown to advise her if she had recorded anything incorrectly. Mr. Brown advised her everything was correct and he signed the officer's police notebook.
22Mr. Brown still had a piece of zip-tie attached to his left wrist when he was in the emergency. He had several injuries to his head and there was blood to the right side of his face above his eye. He had a large scrape to his left elbow and he complained his ribs and chest were hurting. P.C. Abdoullaeva observed there appeared to have been a struggle in the house as a floor lamp had been knocked over and was on the floor. There was a length of blue duct tape on the floor that was twisted up in the same area as the lamp. There was a plastic zip-tie on the floor, as well as drops of what appears to be blood. A scenes of crime officer attended the hospital and took photographs of Mr. Brown's injuries, marked as Exhibit 3. Photographs were also taken of the area where Mr. Brown had described he was assaulted in his home, marked as Exhibit 4.
23Mr. Brown was unable to identify either of the two men who forced their way into his home as one was wearing a black and grey hoody jacket with his face covered by a scarf. He believed this individual was black. The other perpetrator he believed was white, wearing a red jacket with a hood. He was not able to see any facial features of either of two men who assaulted him.
24Mr. Brown's 2002 GMC Envoy, license BNWF601 was subsequently recovered on February 27, 2018, and was returned to Mr. Brown on February 28, 2018. The GMC Envoy was stolen a second time sometime between March 3, 2018 at 9:00 p.m. and March 4, 2018 at 11:00 a.m. from 77 Church Street, York, Ontario, according to a report given by Mr. Brown to police (see Exhibit 31).
25The Crown sought to enter Mr. Brown's statement to P.C. Abdoullaeva as evidence tendered for its truth as a result of Mr. Brown being deceased and unavailable. The traditional hearsay rule renders out of court statements to be presumptively inadmissible if they are tendered for their truth. The rationale for this rule is that the defence are not able to test the evidence through cross-examination and if such a statement is admitted for its truth it could hinder the court's fact-finding process. However, hearsay may be exceptionally admitted under the principled exception when it meets the criteria of necessity and threshold reliability (see R. v. Bradshaw, 2017 SCC 35, at para. 1, and R. v. Khan, 1990 CanLII 77 (SCC)).
26In my view the unavailability of Lawrence Brown, caused by his death, establishes the necessity criterion. The Supreme Court was clear in R. v. Khelawon, 2006 SCC 57, at para. 78, that the criterion of necessity is founded on society's interest in getting at the truth.
27In R. v. Bradshaw, supra, at para. 27, the Supreme Court held the hearsay dangers can be overcome and threshold reliability can be established in two ways: "(1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)."
28Justice Karakatsanis, for the majority further held in R. v. Bradshaw, supra, at paras. 28-31 and 56:
[28] Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination." These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement.
[30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement.
[31] While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty". Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process". The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken"; "under such circumstances that even a sceptical caution would look upon it as trustworthy"; when the statement is so reliable that it is "unlikely to change under cross-examination"; when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about"; when the only likely explanation is that the statement is true.
[56] Clarifying when corroborative evidence can be relied on to establish substantive reliability is not a departure from the functional approach to the admissibility of hearsay. There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established. In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability.
29As I indicated to counsel during submissions, Mr. Brown's statement to P.C. Abdoullaeva, does not identify either of the two individuals who forced their way into his home and assaulted and robbed him. The purpose of introducing his statement for the truth of its contents is to provide evidence as to what took place during the home invasion. It was a statement reduced to writing and reviewed with Mr. Brown by the officer prior to his signing it. It was made contemporaneously with the events he described and he had no motive to lie to the police.
30It is also significant that many of the items in his statement were confirmed and corroborated by the physical evidence and observations of the police officers who responded to the 911 call for assistance after the two assailants fled. There were signs of a struggle in the front hallway and Mr. Brown's injuries were consistent with his description of the assaultive behaviour of the two men, as well as the drops of blood on the floor in the living room just off the hallway. There was crumpled blue duct tape on the floor consistent with Mr. Brown's feet being taped and his removing the tape after freeing one of his hands as he described in his police statement. Further, there was a plastic zip-tie on the floor and there was still a plastic zip-tie attached to Mr. Brown's left wrist.
31Mr. Brown indicated in his statement he intended to go after these two men in his GMC Envoy but realized when he went outside it had been stolen along with his car keys, which had been on his kitchen table inside his home.
32In my view, for all of the above reasons the Crown has established the two criteria necessary for admission of Lawrence Brown's statement for the truth of its contents: necessity – he was deceased at the time of the trial and threshold and substantive reliability. As a result Lawrence Brown's statement contained in P.C. Abdoullaeva's notebook, a copy of which is reproduced in the Notice of Application, dated on April 3, 2019, will be marked as the next exhibit on this trial, Exhibit 42. Mr. Brown's police statement, reduced to writing, can be considered for the truth of its contents.
Factual Background of the Four Robberies, Re-theft of the GMC Envoy and Police Pursuit and Arrest of J.N.-F., A.P. and A.J.
a) Home Invasion Robbery of Lawrence Brown's Residence at 77 Church Street, York, Ontario
33I have set out above the factual circumstances surrounding the home invasion of Lawrence Brown's home, located at 77 Church Street, Toronto, Ontario on February 25, 2018.
34An important piece of evidence found in a phone located in a "JANSPORT" backpack found in the backseat of the black GMC Envoy BNWF601 on March 6, 2018, was the address of 77 Church Street, York, Ontario, which was entered into the "Notes" app of the phone on February 25, 2018, at 2:56:14 a.m., as well as two Google searches respecting the same address on that same date, at 10:45:04 a.m. and 10:46:01 a.m. As I will discuss in greater detail later in my Reasons for Judgment, it is my finding this cell phone was J.N.-F.'s cell phone and he recorded Lawrence Brown's address prior to the home invasion and searched Google Maps twice for this address prior to the home invasion occurring. It is my view this is not just a coincidence but relates directly to J.N.-F.'s involvement in the home invasion of Mr. Brown's residence.
b) 4 Seasons Convenience Store Robbery: February 25, 2018
35On February 25, 2018, Ms. Myongok Kim, age 64, the owner at the 4 Seasons Convenience store, 378 Wilson Road, Oshawa, Ontario was working at the store between 6 and 7 p.m. Two men came into the store and took the money and cash tray from the cash register, which they put in a bag. The two men were not that tall and slim. She testified she believed they were young from their voice, build and their behaviour.
36When the two males entered the store they went immediately behind the counter to the cash register. They told her they were stealing the money. She could not remember clearly what they said to her. The two men can be seen in terms of their clothing from the surveillance videos and photos filed as exhibits. One of them was wearing a red jacket with the hood up and he had black gloves on. His pants were black. The other male had on a grey and black jacket with a hood and was wearing a baseball hat and sunglasses. This person was wearing yellow or green gloves. She could not tell the colour of their skin as their faces were covered. Exhibit 6 are a series of photographs taken from the surveillance videos from the 4 Seasons Convenience store. Exhibit 7 is a disc with the store surveillance videos. Ms. Kim estimated they stole $400 to $500 from the cash register.
37She ran outside after them when they left the store and observed them leave in a black SUV or van that was parked across the street from the store. She did not call the police right away because she was confused by what had occurred. It is my view from Ms. Kim's evidence there is a reasonable inference she was frightened and upset by the actions of these two men.
c) Recovery of the GMC Envoy, licence BNWF601 on February 27, 2018 and Subsequent Theft of GMC Envoy between March 3 and 4, 2018
38An agreed statement of fact was filed as Exhibit 31, which dealt with the recovery of Mr. Brown's GMC Envoy and the subsequent theft of that same vehicle.
39The GMC Envoy, license BNWF601, was recovered at in Etobicoke, which is not far from either 77 Church Street, York (5 minutes by car) or the home address of J.N.-F., York (5 minutes by car). The GMC Envoy was returned to Mr. Brown on February 28, 2018.
40As will be discussed in greater detail later in my Reasons for Judgment, a search and examination of J.N.-F.'s cell phone by a police technician revealed his iPhone was in the precise geographic location of 77 Church Street, York, Ontario, at 2:56:45 a.m., on March 4, 2018, when the vehicle was stolen a second time.
d) Big Bee Variety Store Robbery: March 4, 2018
41On March 4, 2018, at 9:45 p.m., Ms. Farida Farooq, age 53, was working at the Big Bee Variety store, 4 Newton Avenue, Hamilton, Ontario when two men wearing masks came into the store. The first man ran immediately behind the counter and pushed her from her chair and said, "Open the till." On the surveillance videos, Exhibits 8, 9, 10 and 11 (from different angles in the store) the two men can be seen behind the counter pushing Ms. Farooq and the man wearing the orange gloves can be seen striking her on the left side of her face. They took all of the money from the cash registers. One of the two men took her cell phone.
42When the men first came into the store Ms. Farooq attempted to lock the door by pushing a button but the door would not lock because the second male put a bottle between the door and door jamb to prevent it from closing and locking. The perpetrator who placed the bottle between the door and door jamb was the individual wearing a black hoody with a grey rectangle on the back between the shoulders.
43This bottle was ultimately seized by Hamilton police and a swab (see Exhibit 22 Agreed Statement of Facts) was sent to the Centre of Forensic Sciences where a DNA profile (male, major) at 15 STR loci was found on the swab (see Exhibit 28, CFS Biology Report of Jennifer McLean). A DNA sample was obtained from J.N.-F. and compared to the DNA profile (male, major) at 15 STR loci found on the swab from the bottle used to prevent to door from closing. J.N.-F. /Individual CDW – 1847286C-1 (2-1) cannot be excluded as the source of the DNA from the swab (see Exhibit 29: Second CFS Biology Report of Jennifer McLean). The conclusion of Ms. McLean was:
The probability that a randomly selected individual unrelated to J.N.-F. would incidentally share the observed STR DNA profile is estimated to be one in greater than one trillion. [Note: In Ms. McLean's evidence she testified the actual number was one in 370 quadrillion.]
44The two males fled with the cash tray in hand after obtaining $1000 in cash, $900 in bus tickets, cigarettes and the complainant's cell phone. The video depicts one of the individuals to be wearing a black and grey hooded jacket with the hood up, black pants and orange gloves. He appears to have something black over his face from the photos taken from the surveillance videos, Exhibit 19. The other male is wearing a black hoody, with the hood up, black gloves, and black pants. The hoody has a grey rectangular square with some letters between the shoulders on the back of the hoody. This individual appeared to have something black covering his face and sun glasses. Ms. Farooq described both men as wearing ski masks with just little holes for their eyes.
45It is clear from the video that Ms. Farooq was very upset and distraught by the actions of these two men. She testified she was very scared and panicky. The men left the store within two minutes after first arriving.
46Andreas Hitzler, a University of Toronto Research Assistant was outside the Big Bee Variety store. He lives across from the store. He saw movement in the store and then saw two men move swiftly out of the store. He could hear clanging of coins and change in the bag they were carrying. He saw them go into a black SUV, a GMC Envoy, early 2000s, license BNWF601, which he told the police. The men's hoodies were drawn and they had masks which covered their faces and they were wearing sunglasses. He thought both men were black, one was a little over and the other a little under six feet tall, about 20 years old. Exhibit 12 is the 911 call. He was unsure if the first letter in license plate was an "E" or a "B" as he did not want to get too close to it. He was about 15 feet from the back of the GMC Envoy. When he went to Ms. Farooq she appeared to be in shock, very upset and her face was bruised.
47Hanna Farooq, the daughter of Farida Farooq, had installed an app on her mother's Samsung Android phone. On her phone she activated the "Find My Device" app to find her mother's phone. A map was displayed showing where her mother's phone was located. She showed the officers and took screen shots of the different maps showing where her mother's phone was travelling to. The first indication was on a highway in the Dixie area at 10:43 p.m., Exhibit 13. At 10:59 p.m., the phone was just south of the South Service Road, south of the Queen Elizabeth Way just west of Liveoak Drive, Exhibit 14. The final location of her mother's phone was at a large rectangular building on […] in York, which is an apartment building located at […], at 1:36 a.m. on March 5, 2018, Exhibit 15.
48Fraser Phillips is a Forensic Electronics Analyst (E Crimes) with Durham Regional Police Services since 2007. He provided evidence of how "find My Device" app works in terms of providing a map showing location of the phone as it moves from one location to another. This requires the phone to be on and have the "Find my Device" app installed. If the phone was not connected to the internet or Wi-Fi or on you would only see last location that device broadcast. Mr. Phillips agreed in cross-examination the location of the phone is provided and not who has the phone.
49Ms. Jennifer McLean, CFS Biologist, was qualified as an expert in bodily fluid identification, DNA analysis and interpretation including deposition, transfer and persistence of body fluid DNA. She wrote two reports (see Exhibits 28 and 29). The first report dated August 4, 2018, analyzed a swab taken from a bottle found at Big Bee Variety store, which was sent to CFS for DNA testing. Two DNA profiles obtained: Profile 1, male, 15 STR loci, strongest profile and majority of DNA and Profile 2, minor, could not identify gender. The second report, dated March 22, 2019, comparison sample from J.N.-F.'s DNA to generate a DNA profile to compare it with 2 profiles from August 4, 2018 report. J.N.-F. could not be excluded as the source of Profile 1. One explanation is J.N.-F. was the source of the profile or a second explanation is the random possibility it was not J.N.-F. – one in greater than one trillion. The exact number from the analysis was 1 in 370 quadrillion.
50In cross-examination Ms. McLean agreed there is no way to determine the date of deposition of the bodily substance obtained by the Hamilton police using the swab.
e) Circle K Convenience Robbery: March 5, 2018
51On March 5, 2018, at 11:05 p.m., Mr. Margesh Patel, age 19, a Durham College Research Assistant, was working as a clerk at the Circle K Convenience store, 1- 200 Carnwith Drive E, Whitby, Ontario when two men came into the store with their faces covered, wearing sunglasses. They told him to get the money out of the till as they came behind the counter. The man wearing the black and grey jacket with the hood up, black pants and orange gloves came in first. This appears to be the same black and grey jacket observed to be worn by one of the men who was involved in the 4 Seasons Convenience robbery. A second man was wearing a black hoody, which was up, with green or yellow gloves and black pants, and he stopped by the entrance door before coming behind the counter. This can be seen on the surveillance video. They took the store clerk's phone. One guy was about 6'1" and the other was 2-3" shorter. Both were wearing sunglasses. They took $50-$60 from till and $400 in coins. They also took packages of Backwoods cigars. They took a cash tray. Mr. Patel did not see their faces as the hoods were up, the strings pulled tight and the men were wearing sunglasses. He was not able to see the area around their eyes because of the sunglasses.
52On the black hoody worn by one of the men there was a rectangle, grey in colour with some letters between the shoulders, which can be seen on the surveillance video (see Exhibit 21B, still photograph taken from surveillance video, Exhibit 17). This person was also wearing what appears to be a blue shirt under this black hoody. Mr. Patel testified he was scared and panicked by the actions of the two men. They had him sit on the floor with his hands up and told him to take out his wallet, which the first guy took. The first guy took Mr. Patel's cell phone. They were robbers and thieves. Mr. Patel called 911 after the two men ran out of the Circle K, (see Exhibit 16).
f) Police Chase of GMC Envoy, license BNWF601 and Arrest of J.N.-F.: March 6, 2018
53On March 6, 2018, P.C. Sean Firth was operating a marked police cruiser southbound on Simcoe Street in Oshawa. He observed a dark-coloured SUV make a U-turn in the intersection. He did a vehicle check on the license plate, BNWF601 and the plate came back as a stolen vehicle. He confirmed vehicle was stolen and then advised dispatch of his location. He activated his roof lights and the SUV did a 3-point turn and drove directly at the police vehicle. The SUV's front passenger side drove into the rear passenger side of the police vehicle. The vehicle drove over a small retaining wall eastbound on Bloor Street in Oshawa. P.C. Firth pursued the SUV northbound on Simcoe Street to Highway 401 westbound.
54The SUV was driving in an erratic manner, debris was coming off the SUV and rubber from one of the tires. P.C. Firth requested additional back-up. Another police cruiser went ahead of the SUV and the SUV then struck the centre median and then went across three lanes of traffic, onto the shoulder and then onto a grassy shoulder between Highway 412 and 401 and then down a small embankment. The vehicle came to a stop and two individuals could be seen running from the front driver's side and front passenger's side of the SUV. They ran to a marshy area. A third individual was taken into custody by P.C. Waldman. The other two individuals were also arrested, one by P.C. Villena and the other by the K9. P.C. Firth shut off the SUV as it was smoking.
55P.C. Firth observed a black handgun in back of vehicle, partially under the seat in the back of the vehicle. He had no involvement with any of the three individuals who exited the SUV.
56P.C. Villena observed two individuals exit the GMC Envoy when it stopped in the ditch. The two individuals ran into a green space area. P.C. Villena engaged in a foot pursuit with one of these individuals and had to ground him. This person identified himself as A.J., birthdate […], 2002. He did not know which side of the vehicle A.J. exited from. P.C. Villena received information after speaking with A.J.'s mother that he lived at […].
57P.C. Roffey was involved in chasing the other individual who was running in the field from the GMC Envoy. He and P.C. Armstrong with the K9 unit effected the arrest of A.P., birthdate […], 2000. The GMC Envoy was towed to the SOCO garage to be searched. P.C. Roffey sealed all of the doors and did not enter the vehicle. He did not see any of the individuals exit the GMC.
58P.C. Louis Waldman joined the pursuit of the GMC Envoy and observed 5 police cruisers following the GMC on Highway 401. As the vehicle came to the Highway 412 exit it suddenly veered to the left and struck the centre median and then shot over the three lanes to the shoulder of Highway 401 and went down a slight embankment where it came to a stop. P.C. Waldman's police vehicle was adjacent to the GMC. He observed two individuals wearing hoodies, the driver and passenger exit the SUV and run into a field in a northwest direction. He started to go down to the SUV and detected motion from the backseat of the SUV. He saw an individual in a hoody climbing from the backseat into the front seat. This person was wearing a do-rag and a balaclava. P.C. Walkman gave the police challenge and this person complied. This individual lay on his stomach on the ground, was handcuffed by P.C. Waldman, who conducted a pat down search and advised this person he was under arrest for possession of stolen property. The youth identified himself as J.N.-F., birthdate […], 2002, and that he resides with his mother in Toronto. P.C. Waldman read the right to counsel and J.N.-F. said he understood and when he was asked if he wanted to speak to a lawyer he said he wanted to call his mother. P.C. Waldman placed him in the back of his police cruiser after conducting a second search.
59J.N.-F. was wearing a black hoody inside out with a grey rectangle with lettering on the back between the shoulders. He was also wearing black mechanics gloves, a balaclava and a do-rag (head wrap) with a pair of dark jeans and running shoes. His clothes were covered in mud from the ground where he lay on when arrested. His clothing can be seen in the booking video, Exhibit 26. His clothing was seized and can be seen in Exhibits 32 and Exhibit 33 (Enlarged photos).
60D.C. James Aquin has been a DRPS officer for 20 years and for the last 15 years he has been a member of the Forensic Investigative Services Unit. He had received a call for service on March 8, 2018, respecting a GMC Envoy, black, license BNWF601, which had been involved in a police pursuit the previous day. The Envoy had been towed to their police facility. Exhibit 32 is a bound book of photographs (230) of the vehicle and its contents photographed where items were found in the vehicle and then photographed outside the vehicle. Exhibit 33 is a book of enlarged photographs of items seized from inside the GMC Envoy.
61An iPhone (white) was found between the front passenger seat and the centre console (photograph 0049, Exhibit 32). A blue "JANSPORT" backpack was found on the rear passenger side seat (0056, Exhibit 32). The backpack was open and a black iPhone could be seen at the top of the items inside it (0057, Exhibit 32). Inside the JANSPORT backpack was a Backwood's Cigar package (0065 and 0066, Exhibit 32). Backwoods cigars were stolen from Circle K Convenience store.
62The clothing seized from J.N.-F. is shown in photograph 0195 and 0196, Exhibit 32. The black hoody turned inside out is shown in photograph 0197, Exhibit 32. Photograph 198, Exhibit 32, is a close-up of the light grey label with lettering on the back of the hoody between the shoulders as worn by J.N.-F. when he was arrested. Photograph 0199, Exhibit 32, shows the do-rag and ski mask/balaclava worn by J.N.-F. when he was arrested on March 7, 2018. Photograph 0201, Exhibit 32, were the grey/black gloves worn by J.N.-F. at the time of his arrest.
63A pistol style handgun, what turned out to be a BB gun, was also located inside the GMC Envoy on the driver's side back seat on top of a black jacket, which was beside a red and grey North Face jacket (0035 and 0036, Exhibit 32). A number of pairs of sunglasses were found inside the GMC. One pair was found on back seat close to middle on driver's side seat (0132, Exhibit 32).
64Three cell phones were found in respect of the three individuals who were in the GMC Envoy on March 6, 2018. One was found on A.J., which was damaged and could not be forensically examined. The white iPhone was found beside the front passenger seat and the centre console. A black iPhone was located inside the blue checkered "JANSPORT" backpack in the back seat on the passenger side. A warrant was obtained to search the phones and Mike Shishko of the DRPS eCrimes Unit was able to gain access to the iPhone found in the "JANSPORT" backpack and downloaded the data on this iPhone. He used a tool called cellebrite, which allowed him to process different types of data. The cellebrite report, which can be utilized to search the data on the iPhone is contained in Exhibit 36, which is a USB stick. J.N.-F.'s name was found in this phone, as well as a reference to Mom […]. Mr. Shishko found the address 77 Church Street in this iPhone. On February 25, 2018, at 2:56:14 the address 77 Church Street, York, ON, M5N 1H2 was put into the Notes app. In addition, at 10:45:04 and 10:46:01 two Google map searches were conducted respecting 77 Church Street, York. Further, this iPhone was at 77 Church Street, on March 4, 2018 at 2:56:45 based on the Google Map Database.
65Mr. Shishko agreed there were four Apple IDs connected with the iPhone and 4 email accounts on the phone. He did not know who the owner of the SIM card was.
66The final witness on the trial was Detective Michael Baggio, who was with DRPS Major Crimes – Robbery. He first became involved in the investigation of the stolen GMC on March 7, 2018. At this point there had been two recent robberies, the 4 Seasons Convenience store and Circle K Convenience store. Cell phones were seized and a search warrant was obtained. Only two of the three cell phones were able to generate reports. As a result of information/data obtained from the cell phone found in the "JANSPORT" backpack, Det. Baggio believed it was used by J.N.-F. during relevant time period surrounding the robberies discussed above. After reviewing information/data retrieved from the second phone, Det. Baggio believed this phone was being used by A.P. The last 4 digits of the phone number for this phone were […]. There was nothing found in A.P.'s phone that related to the robberies in question.
67The first iPhone from the backpack was searched by Detective Baggio for clues within the phone's data to determine who owned and/or used the phone: images, texts, emails, names, pictures, addresses and searches for example were examined. There were a number of Apple IDs associated with this phone. The phone number for this phone was […]. This number is also associated with out-going calls made from this iPhone. An email address associated with this iPhone was [...]@gmail.com. This was one of the Apple IDs associated with the phone. This email was also associated with a Facebook website: […], which had an image of J.N.-F. (see Exhibit 39).
68There was a bank transaction located in the iPhone's data, which was an Interac eTransfer from J.N.-F. to K.E. in the amount of $10.67. This transaction was made on February 17, 2018, at 1:02 p.m. The account attributed this transfer being made by [...]@gmail.com and related to J.N.-F. There was a notification back to "J." that an eTransfer was accepted by K.E.
69Det. Baggio then looked for images within the phone to determine if there were images of J.N.-F. taken during the time period around the four robberies. He found image 5003, which is a selfie of the young person, J.N.-F.. Det. Baggio testified he was looking for images taken around the times associated with the robberies. On February 28, 2018, at 7:56:40 p.m. there is an image of J.N.-F. with a woman and a further image of J.N.-F. smoking in a close-up photograph. Images were related to the Gmail address noted above. There were a number of photos of J.N.-F. found in the phone, which were referred to during Det. Baggio's evidence.
70A number of the Note entries include J.N.-F.'s full name and phone number. On February 5, 2018, there is a letter from J.N.-F. to his school about his attendance and a request for a Metro Pass, which includes his contact telephone number, […]. Detective Baggio testified this was the same number provided to him by J.N.-F. after he was arrested, as his home contact number for his mother.
71Detective Baggio was able to locate an essay in the Note app on the iPhone, dated February 12, 2018, which is entitled J.N.-F., which dealt with "Canada being one of the greatest countries in the world to live in." It was Detective Baggio's belief this was an essay written by J.N.-F. for school, which he put in his iPhone.
72On March 3, 2018, at 7:43:20 p.m., phone number […], was sending messages to J.N.-F. asking him to "come here please." There were a series of messages exchanged between this phone number and J.N.-F.'s phone. The messages are sent to "J." and are from […] and signed "Wife" with two emojicons: a heart and a ring.
73There was a further text message from February 23, 2018, 1:34:12 p.m., from "Mom" from phone number […], asking if J.N.-F. wanted her to apply for a new Health card tomorrow? This text message was to J.N.-F.'s phone number ending in […] and was an on-going exchange between J.N.-F. and his mom. This phone number for "Mom" was the same number provided by J.N.-F. for his mother during the booking. It was Detective Baggio's view this black iPhone was clearly being used by J.N.-F..
74There was a text message exchange between J.N.-F.'s phone […] and the other iPhone with the last 4 digits […], referring to "A." (who Det. Baggio believed to be A.P.). On March 3, 2018, at 11:33 a.m., "Do you wanna get a whip no?" There was a response from J.N.-F., "Do you wanna see if other one is there first?" at 11:35 a.m. on same date. The response appears to be "lifham check." The response was "I doubt it's there." J.N.-F. responds, "Alright if it's not we'll have to get one." "A." responds, "We have to." J.N.-F. responds, "think I shouldn't go, you think it is there?" This an exchange between those two phones. According to Det. Baggio's testimony, "Whip" is a slang term, which refers to a vehicle. The date is March 3, 2018 in the late morning, which is about 10 hours before the time period between March 3, 2018 at 9 p.m. and March 4, 2018 at 11 a.m., when Lawrence Brown's vehicle was stolen for a second time. Det. Baggio believed this exchanged demonstrated a conversation between A.P. and J.N.-F. concerning the re-stealing of Mr. Brown's vehicle.
75Det. Baggio discovered the address 77 Church Street, York, entered twice in the Note section of J.N.-F.'s iPhone. Further, there were two Google map searches of this same address, 77 Church Street, York, just five and a half hours before the home invasion of Mr. Brown's home occurred. Further, on March 4, 2018, at 2:56:45 a.m. J.N.-F.'s phone was at 77 Church Street based on the iPhone's Google GPS location services and this was reflected in the data of the phone. This was around the time Mr. Brown's GMC Envoy was likely stolen for the second time.
76DRPS became aware of the Hamilton robbery on March 4, 2018, of the Big Bee Variety store and when the surveillance video was observed, one of the robbers was seen to be wearing a black hoody with a grey rectangle on the back between the shoulders with lettering, which was consistent and similar to the hoody worn by J.N.-F. when he was arrested on March 7, 2018, after he was commanded to get out of the black GMC Envoy license BNWF601. This same hoody can be observed being worn by one of the robbers of the Circle K Convenience store on March 5, 2018.
77J.N.-F. turned himself into the police on October 9, 2018 when he was charged with the offences before the court. There was no evidence during the trial as to what occurred after the arrest of the three young men on March 7, 2018, after the damage caused to a police vehicle and the subsequent police pursuit occurred. There is a reasonable inference that J.N.-F. was not charged after his arrest on March 7, 2018, and that the police conducted further investigation until just before October 9, 2018, when J.N.-F. surrendered himself into police custody.
78It is my view considering the totality of the evidence concerning the contents of the cell phone, discussed above, the iPhone found in the JANSPORT backpack in the backseat of the GMC Envoy, license BNWF601, with phone number […], connected with Apple ID: [...]@gmail.com, which is also an email address, I find there is a reasonable inference that this iPhone belonged to and was used by J.N.-F. I find this is the only logical and reasonable inference that can be drawn from the whole of the evidence.
79Detective Baggio testified it was his understanding that A.J. lived at […] and A.P. lived at […], which were locations close to where J.N.-F. lived. The defence provided two Google maps depicting these addresses in relation to J.N.-F.'s address, Exhibits 40 and 41. In my view the proximity of these three individuals' home addresses provides some evidence of prior contact and knowledge of each other prior to the police pursuit and subsequent arrest on March 7, 2018.
Law Respecting Whether Crown has Proven the Charges Beyond a Reasonable Doubt
80As in any criminal case J.N.-F. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
81J.N.-F. did not testify on these proceedings, which is his right. There is no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove J.N.-F.'s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence.
82I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit J.N.-F. of any of the offences he faces if any of the Crown witnesses' evidence raises a reasonable doubt after considering it in the context of the evidence as a whole. If it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of J.N.-F. beyond a reasonable doubt in relation to each of the offences he is facing.
83I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.
84More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.
85Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, 2016 SCC 33, at paras. 55-56, is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence," (see R. v. Wu, 2017 ONCA 620, at paras. 9 and 14-15). In a recent decision, R. v. Bella-Santana, [2019] O.J. No. 1674 (OCJ), at para. 57, Felix J. provided a useful summary of the guidance on the appropriate analysis required when the prosecution's case depends on circumstantial evidence as provided by the Supreme Court in Villaroman. I adopt this reasoning:
The trier of fact should be alerted to unconscious efforts to "fill in the blanks" or "bridge gaps" in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;
Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;
"A reasonable doubt is a doubt based on 'reason and common sense'; it is not 'imaginary or frivolous'; it 'does not involve proof to an absolute certainty'; and it is 'logically connected to the evidence or absence of evidence'": Villaroman, at para. 28;
Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;
Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;
When assessing circumstantial evidence the trier of fact should consider other "plausible theories" and other "reasonable possibilities" which are inconsistent with guilt: Villaroman, at para. 37; and,
In distinguishing between a plausible theory and speculation the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38.
86Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:
It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
87These are the principles I must apply in my assessment of the totality of the evidence led during J.N.-F.'s trial.
88As can be seen from my discussion of the factual circumstances surrounding each of the charges facing J.N.-F., there are a number of pieces of direct and circumstantial evidence which either identify J.N.-F. as being involved in the robberies or lead to reasonable inferences that J.N.-F. was involved in one or more of the robberies.
89Before addressing the Crown's similar fact application it is my view there are a number of pieces of evidence, both direct and circumstantial, which identify J.N.-F. as being involved in a number of the offences set out in the information. It is my intent to deal with this evidence first to determine whether the Crown has proven those offences beyond a reasonable doubt prior to embarking upon an analysis and assessment of whether the circumstances of the robberies are so strikingly similar it would be an affront to common sense to conclude the similarities are due to coincidence.
Analysis
90It is my view looking at the totality of the evidence dealing with the home invasion/robbery of Lawrence Brown on February 25, 2018; the re-theft of Mr. Brown's GMC Envoy between March 3 and 4, 2018; the robbery of the Big Bee Variety store on March 4, 2018; the robbery of the Circle K Convenience store on March 5, 2018 and the police pursuit of the GMC Envoy, license BNWF601 on March 6, 2018 and J.N.-F. arrest in the early morning hours of March 7, 2018 when he exited Mr. Brown's GMC Envoy, there is direct and circumstantial evidence identifying J.N.-F. as being an involved participant in each of the events referred to above. What follows is the evidence I believe, when considered in its totality that proves the offences arising out of those incidents beyond a reasonable doubt. I am satisfied J.N.-F.'s guilt is the only reasonable and logical conclusion available considering the totality of this evidence, which I will now set out in detail below.
91The two perpetrators of the home invasion of Lawrence Brown had their faces covered such that Mr. Brown was unable to provide any description of them, which could be used to identify his assailants. All he was able to say was one of his assailants, who he believed was white, was wearing a red hooded jacket and the other person, who he believed was black, was wearing a black and grey hooded jacket with his face covered by a scarf. He was unable to see the facial features of either person because as soon as they came inside his house, he was knocked to the ground and he was punched and kicked in his face and chest, causing him bodily harm.
92In J.N.-F.'s iPhone (seized from the JANSPORT backpack in the back seat of the GMC Envoy) there was a Note, which had the address of Mr. Brown, namely, 77 Church Street, York, Ontario, M9N 1N2. This Note was created at 2:56:14 on February 25, 2018. In addition, J.N.-F.'s iPhone had 2 Google map searches made on February 25, 2018 at 10:45:04 and 10:46:01, just two hours and 45 minutes prior to the home invasion that occurred at 1:30 p.m. There was no explanation or reason provided by the evidence as to why a Note with this address would be in J.N.-F.'s iPhone. In my view the only reasonable inference to be drawn from this evidence is that J.N.-F. was one of the persons who planned the home invasion and was involved in assaulting, forcibly confining and robbing Mr. Brown.
93There was no surveillance video in Mr. Brown's house or in the area around Mr. Brown's residence that depicted the type and colour of red jacket or the black and grey jacket worn by his assailants. The Crown submitted one of the two individuals who robbed the 4 Seasons Convenience store can be seen on the video surveillance to be wearing a red hooded jacket, however, it is completely unknown if this is the same red jacket as described by Mr. Brown, whose description is essentially generic in nature. I will deal with this in more detail when I address the Crown's similar fact application. Mr. Brown described the second young man as wearing a black and grey hooded jacket. The same observation applies to this black and grey hooded jacket. The Crown pointed to the fact that at both the 4 Seasons and Circle K robberies one of the assailants was wearing a black and grey hooded jacket, however, again, it is unknown if what appears to be a very similar black and grey hooded jacket worn during those robberies was the same as the black and grey jacket described by Mr. Brown in his statement. This is because his description lacks any detail or specificity as to what parts of the jacket were back or grey. Consequently, I cannot draw any inferences respecting the clothing described by Mr. Brown as identifying any of the perpetrators.
94However, Mr. Brown's GMC Envoy appears to be a constant and recurring feature of the evidence relating to J.N.-F. in terms of its initial theft on February 25, 2018; J.N.-F.'s text messages with A.P. concerning the need for a "whip," a motor vehicle, and whether the previous whip (GMC Envoy) is available to steal; the GMC's re-theft between March 3 and 4, 2018; its use during the Big Bee Variety robbery as identified by Mr. Hitzler on March 4, 2018 and the fact J.N.-F. is arrested in the GMC Envoy on March 6, 2018.
95Mr. Brown's vehicle was recovered by police at […] in York, which was a 5 minute car ride from J.N.-F.'s apartment building, where he lived with his mother. Mr. Brown's residence is only a six minute drive from J.N.-F.'s apartment according to Google Maps. J.N.-F. has Mr. Lawrence Brown's address in his iPhone prior to the home invasion and he conducted two Google Map searches of that same address just before the home invasion occurred.
96The GMC was returned to Mr. Brown on February 28, 2018. As described in the evidence, J.N.-F.'s iPhone has a text message exchange between his iPhone and the iPhone of A.P., who is referred to by J.N.-F. as "A.," on March 3, 2018 at 11:33 a.m.:
A.P.: "Do you wanna get a whip no?"
J.N.-F.: "Do you wanna see if other one is there first?" (11:35 a.m.)
A.P.: "lifham check," "I doubt it's there."
J.N.-F.: "Alright if it's not we'll have to get one."
A.P.: "We have to."
J.N.-F.: "think I shouldn't go, you think it is there?"
97Det. Baggio testified this exchange was discovered on the two iPhones he determined were being used by J.N.-F. and A.P. He testified "whip" is a slang term, which refers to a vehicle. The date is March 3, 2018, in the late morning, which is about 10 hours before the time period between March 3, 2018 at 9 p.m. and March 4, 2018 at 11 a.m., when Lawrence Brown estimated his vehicle was stolen for a second time. In my view this exchange when considered with all of the evidence leads to a reasonable inference these two young men were involved in the original home invasion and theft of the GMC Envoy and are planning to steal another vehicle. J.N.-F. suggested they check to see if the GMC Envoy is available to steal again. They stole the keys to this vehicle during the home invasion and there is a reasonable inference on the evidence they still had those keys and used them to steal the GMC Envoy a second time.
98More significantly, J.N.-F.'s iPhone's Google GPS location feature disclosed that J.N.-F.'s iPhone was at 77 Church Street, York, Ontario, at 2:56:45, which was after Mr. Brown had gone to bed and prior to his awakening and discovering his GMC Envoy had been stolen again. Again, there is a reasonable inference on the evidence that J.N.-F. and A.P. stole the GMC Envoy around the time (2:56:45) J.N.-F.'s iPhone was located at 77 Church Street, York, Ontario on March 4, 2018.
99The black GMC Envoy, license BNWF601 was observed by Mr. Hitzler, a University of Toronto research assistant, on March 4, 2018, around 9:45 p.m., just outside the Big Bee Variety store in Hamilton, Ontario. Mr. Hitzler saw two men dressed in dark clothes wearing masks and sunglasses run from the Big Bee Variety and get inside the GMC Envoy and drive off just after the robbery of Ms. Farooq. There were carrying bags from which he heard coins banging together. He provided the license plate of the GMC Envoy – BNWF601 – when he called 911.
100Further, in the Big Bee Variety store and Circle K Convenience store robberies, one of the two men involved was wearing a black hoody with a grey rectangle, with some lettering, on the back between the shoulders. I find this hoody is the same hoody J.N.-F. was wearing when he was arrested on March 7, 2018, by P.C. Waldman, outside the black GMC Envoy license BNWF601 on an embankment between Highway 401 and Highway 412. The grey rectangle is the label – "BIGGY THREADS M" – on the inside of J.N.-F.'s black hoody, which he was wearing inside-out (see Exhibit 32, Photographs 0197 and 0198 and Enlarged photograph of label in Exhibit 33), because of a very distinctive design taking up the complete back of the hoody (see Exhibit 32, Photographs 0210 and 0211, which show 3 pictures of a woman's face (nose to chin) with red lips holding and smoking a cigar). I find based on this distinctive grey rectangle on the back of the dark hoody that this hoody was being worn by J.N.-F. on the three occasions described.
101The second perpetrator in both the Big Bee Variety store and Circle K Convenience store robberies placed a bottle between the entrance door and the door jamb to prevent the door from being locked. The perpetrator who did this was wearing the hoody with the grey rectangle on the back. This can be determined by both surveillance videos (see Exhibits 8-11: Big Bee Variety videos and Exhibit 17: Circle K videos). The bottle at the Big Bee Variety store robbery was recovered by Hamilton police and a swab of the bottle revealed a DNA profile, which J.N.-F. cannot be excluded from – one in 370 quadrillion. I find based on the expert evidence of the CFS Biologist, Ms. McLean, that the DNA she recovered from the swab was J.N.-F.'s DNA.
102Finally, one of the perpetrators involved in the Big Bee Variety robbery stole Ms. Farooq's cell phone. Her daughter Hannah Farooq, had installed the "Find My Device" on her mother's phone, which she activated when she got to the Big Bee Variety store after the robbery. She was able to take screen shots of maps on her phone using this app, which showed the progress of her mother's phone as it travelled across the Queen Elizabeth Way from Hamilton and made its way to […] in York, J.N.-F.'s apartment building address. It did not move from this location. I do not accept the defence submission that because A.P. and A.J. also live in York, only 5 or 10 minutes from J.N.-F.'s residence that this phone may have been turned off or run out of battery and then been taken to one of those individual's addresses. In my view considering the totality of the evidence this would be pure speculation, particularly having regard to the evidence of the distinctive hoody worn by J.N.-F. and the fact it was J.N.-F.'s DNA that was found on the bottle. Further, the phone stopped moving when it got to […], which is J.N.-F.'s address. Ms. Farooq's phone is just one additional piece of evidence to consider when assessing whether the Crown has proved J.N.-F.'s involvement in the Big Bee Variety store robbery.
103I have no doubt based on the whole of the evidence that J.N.-F. was involved as an active participant in the home invasion of Mr. Brown's residence (February 25, 2018); the re-theft of Mr. Brown's GMC Envoy (March 4, 2018 around 2:56:45); the Big Bee Variety robbery (March 5, 2018); the Circle K robbery (March 6, 2018) and his involvement with the GMC Envoy and the police pursuit on March 6-7, 2018.
104I am satisfied on the totality of the evidence beyond a reasonable doubt that J.N.-F. is guilty of the offences surrounding the home invasion and robbery of Lawrence Brown. The fact Mr. Brown's address was found in J.N.-F.'s iPhone and the two Google map searches of that address defy coincidence. It is my view based on his continued involvement with Mr. Brown's address on March 4, 2018, at 2:56 a.m., when his iPhone was located at this address when the GMC Envoy was stolen a second time and his continued involvement with the GMC Envoy, the text messages from March 3, 2018, concerning the need to get a "whip," the GMC's re-theft (March 4, 2018), the Big Bee Variety robbery using the GMC to get away (March 4, 2018) and the police pursuit of the GMC Envoy, license BNWF601 (March 6-7, 2018) where after he moved from the back seat of the GMC Envoy to the front passenger seat and then got outside where he was arrested by P.C. Waldman – on the totality of that evidence J.N.-F.'s involvement is established beyond a reasonable doubt in the home invasion robbery of Mr. Brown.
105I am satisfied beyond a reasonable doubt J.N.-F. was involved in the re-theft of the GMC (the fact his iPhone is located at Mr. Brown's address on March 4 at 2:56 a.m. around the time the GMC was likely re-stolen) and the text messages between J.N.-F. and A.P. concerning finding a "whip" and going back to Mr. Brown's address to see if it is there.
106I am also satisfied beyond a reasonable doubt that J.N.-F. is guilty of the offences surrounding the Big Bee Variety robbery on March 4, 2018, because of the many significant pieces of evidence directly and circumstantially tying J.N.-F. to it. The distinctive black hoody with the grey rectangle with lettering on the back, J.N.-F.'s DNA on the swab taken from the bottle the person wearing the distinctive hoody placed in the door, the fact the two perpetrator's fled in Mr. Brown's GMC Envoy as observed by Mr. Hitzler, and Ms. Farooq's cell phone that ended up at J.N.-F.'s address all establish beyond a reasonable doubt J.N.-F.'s guilt concerning the offences surrounding the Big Bee Variety robbery.
107Finally, I am satisfied beyond a reasonable doubt that J.N.-F. is guilty of the offences surrounding the Circle K robbery because of the distinctive hoody with the grey rectangle on the back and the fact the person wearing the distinctive hoody with the grey rectangle put something in the door to prevent it from being locked as was done at the Big Bee Variety robbery. When these facts are added to the fact J.N.-F. was wearing the exact same distinctive hoody with a grey rectangle on the back when he was in the GMC Envoy and was arrested (March 6-7, 2018) it is my view the only reasonable conclusion available on the totality of the evidence is the guilt of J.N.-F. in respect of the Circle K robbery.
Similar Fact Application
108The Crown has applied to have me consider the evidence relating to the various counts facing J.N.-F. as similar fact evidence going to prove identity. The Crown provided an application and factum relating to this issue prior to the commencement of the trial. Both counsel are basically in agreement respecting the applicable law but disagree on its application to the facts in J.N.-F.'s case. As I will discuss later, it is my view this application is an attempt to link J.N.-F. to the 4 Seasons Convenience robbery on February 25, 2018, some five and a half hours after the home invasion.
The Law
109Evidence of similar acts is presumptively inadmissible, whether the similar acts are charged as separate counts in a multi-count indictment or involve uncharged extraneous misconduct: R. v. Handy, 2002 SCC 56, at para. 78 and R. v. Durrant, 2019 ONCA 74, at para. 82. The general exclusionary rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt or innocence, poses grave dangers to a fair trial (see Handy, at paras. 31-36). Nonetheless, courts have recognized that exceptions can be made where the evidence of prior discreditable conduct "may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse" (see Handy, paras. 41-42).
110The probative value of evidence cannot be considered in the "abstract" and must be assessed against the facts sought to be established by the impugned evidence. As such, it is critical to identify the issue to which the evidence is relevant: Handy, at paras. 69, 73-74; R. v. Kangasivam, 2016 ONSC 2548. In order to be admissible, the similarities between the matter in issue and the proposed similar fact evidence would have to be "such that absent collaboration, it would be an affront to common sense to conclude that the similarities were due to coincidence" (see Handy, para. 41). The identity of the perpetrators is the critical issue in this case and it is the issue to which the similar fact application is directed.
111In R. v. Arp [1997] 3 S.C.R. 339, at para. 45, Cory J., for the court, held that where similar fact evidence is adduced on the issue of identity:
… there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts "strikingly similar" and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. 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).
See also Handy, at paras. 77-80; R. v. MacCormack, 2009 ONCA 72, at para. 50; R. v. Perrier, 2004 SCC 56, at para. 21-23; R. v. Shearing, [2002] 2 S.C.R. 33, at para. 48-50 and Kanagasivam, at para. 21.
112The standard is described as "strikingly similar" or "highly distinctive" in the nature of a "signature" but a unique signature is not required. "A signature is not required in every case as a significant number of similarities in combination may, by their cumulative effect, warrant admission" (see MacCormack, at paras. 51 and 61). "The key is whether there is such a high degree of similarity between the acts that it is likely they were committed by the same person" (see Kanagasivam, at para. 22). If a trier of fact determines that the acts in question are strikingly similar and on a balance of probabilities is satisfied they were committed by the same person then the evidence will have sufficient probative value to outweigh the prejudicial effect (see Arp, at paras. 48 and 50).
113Once deciding the threshold has been met the trial judge must determine whether there is a link between the defendant and the alleged similar acts. The link to the defendant is a prerequisite to admissibility (see Perrier, at para. 23).
114A further issue respecting similar acts is whether there is evidence that a group is involved in the criminal activities, in this case the robberies of convenience stores. Where group membership is not constant, the fact that an individual may have been a member of the group on one occasion proves nothing more than a mere possibility that he is a member on another occasion. The evidence of group activity must be accompanied by evidence linking the individual to each of the group's offences for which he has been charged, either by virtue of the distinctiveness of his role or by other independent evidence. Without this additional link, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and the similar fact evidence will not have sufficient probative value to outweigh the prejudice caused (see Perrier, at paras 25, and 32-34).
115In a recent unreported decision on similar fact evidence, Justice S. Magotiaux of the Ontario Court of Justice in R. v. Ottley, unreported, dated May 3, 2019, made this observation concerning robberies involving a group of individuals where the membership changes:
It is necessary to link the accused to each allegedly similar act in a changing group situation because there would otherwise be a gap in proof that could bring unfairness. The accused would be at risk of conviction for acts committed by a group of which he is a member, but in which he did not personally participate: Perrier, at para. 25; Kanagasivam, at paras 44-45, 75. Where, however, the group composition does not change, each accused must be individually linked to only one of the acts that have been found to be strikingly similar. In this scenario, there is no risk of conviction "by association", for acts committed by other members of a group.
I adopt these observations.
Analysis
116As I have discussed above, there is direct and circumstantial evidence, quite apart from similar fact evidence, which provide irrefutable links to prove J.N.-F.'s involvement in the following offences beyond a reasonable doubt:
The robbery of Lawrence Brown on February 25, 2018;
The forcible confinement of Lawrence Brown on February 25, 2018;
The assault causing bodily harm of Lawrence Brown during the home invasion on February 25, 2018;
The disguise with intent to commit an indictable offence on February 25, 2018;
The break and enter into Mr. Brown's home when the two perpetrators forced their way into Mr. Brown's house on February 25, 2018;
The theft of Mr. Brown's 2002 GMC Envoy, license BNWF601 on February 25, 2018;
The theft of Mr. Brown's 2002 GMC Envoy, license BNWF601 between March 3 and 4, 2018;
The robbery of Farida Farooq at the Big Bee Variety store in Hamilton, Ontario, on March 4, 2018;
The disguise with intent to commit an indictable offence on March 4, 2018 during the robbery of the Big Bee Variety;
The robbery of Patel Margesh at Circle K Convenience store in Whitby, Ontario, on March 5, 2018;
The disguise with intent to commit an indictable offence on March 5, 2018 during the robbery of the Circle K Convenience store; and
Four counts of breach of recognizance by failing to comply with the condition of house arrest on February 25, 2018, between March 3 and 4, 2018, March 4, 2018 and March 5, 2018.
117This leaves the offences surrounding the robbery of the 4 Seasons Convenience store in Oshawa, Ontario, on February 25, 2018. The Crown submits the characteristics of the robberies involved in this case are "strikingly similar" and thereby establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence, proving the identity of J.N.-F. as being one of the two individuals who robbed Myongok Kim at the 4 Seasons Convenience store on February 25, 2018, only five and a half hours after the home invasion of Lawrence Brown.
118The only evidence led by the Crown from the evidence of the clerk and the surveillance videos demonstrated that only two masked persons were involved in each of the four robberies in question. There was no evidence of anyone else keeping watch outside of Mr. Brown's house or of a third person keeping watch while the robberies unfolded inside the convenience stores where that person was either standing outside the store or remaining inside the GMC Envoy. The arrest of J.N.-F., A.P. and A.J. on March 7, 2018, after the police pursuit involving the GMC Envoy raises the issue of which of these three young men were potentially involved in each of the four robberies.
119I do not know from the evidence called at J.N.-F.'s trial what his connection to these other two individuals was. The defence brought out that they all lived relatively close to each other, within several kilometres of each other. I do not know if A.P. or A.J. were charged with the same offences as J.N.-F.. I do not know from the evidence led by the Crown whether there was evidence proving A.P. or A.J. was conclusively involved in any of the four robberies. A.P. and A.J. are not wearing distinctive clothing that can be linked to any of the four robberies in the same way J.N.-F. wore the same distinctive black hoody with the grey rectangle with lettering on the back, which clearly linked him to two of the convenience store robberies as well as the evidence obtained from his iPhone linking him to Mr. Brown's address and to the black GMC Envoy's theft and re-theft.
120The Crown points to a number of similar characteristics in respect of each of the three convenience store robberies (4 Seasons, Big Bee Variety and Circle K):
Proximate in time
2 youthful males
Wearing hooded jackets with hoods up
Faces covered
One male goes behind counter first followed by a second male
The two males are both wearing gloves
They go to cash register and ask for money
Clerk is alone
In two of robberies two males left in a black SUV
121It is my view the characteristics focused on by the Crown of each of the three robberies are quite common and would apply to many robberies of convenience stores throughout the GTA. It is difficult to see how these characteristics reach the level of being strikingly similar such that I would conclude they were committed by the same person or group of persons as set out in the caselaw. However, assuming I was able to determine that this threshold had been met, it is my view there is nothing to link J.N.-F. to the 4 Seasons Convenience store robbery as one of the perpetrators.
122The clothing worn by the two persons who are involved in the robberies changes, although as I have found, J.N.-F. wore the same distinctive hoody with a grey rectangle with lettering between the shoulders on the back. There was a grey/black jacket worn by one of the perpetrators, which appeared to be identical or very similar based on which portions of the jacket were black and which portions were grey, during the 4 Seasons robbery and the Circle K robbery. Mr. Brown described one of his assailant's wearing a black and grey hooded jacket but he was not asked for a detailed description of this jacket such that it could be compared to the black and grey jacket seen on the surveillance video. Although the clothing worn by A.P. and A.J. were included in the photographs in Exhibit 32, the jackets worn by A.P. and A.J. do not match the black and grey hooded jacket seen in the surveillance videos of the 4 Seasons and Circle K robberies. The jackets worn by A.P. and A.J. on March 7, 2018, appear from the photographs to be solid black (see Exhibit 32, Photographs 0109-0118 [A.P.] and 0168-0169 [A.J.]). Neither of these jackets are distinctive and the hooded jacket worn by the first perpetrator who enters the Big Bee Varity appears to be a dark grey jacket. No other item of clothing was distinctive in the way J.N.-F.'s hoody was distinctive.
123Mr. Brown described in his statement that one of the perpetrators was wearing a red hooded jacket. One of the perpetrators in the 4 Seasons robbery was wearing a red hooded jacket, yet no red hooded jacket was found on A.P. or A.J. when they were arrested or found in the GMC Envoy. Further, it is unknown if the red hooded jacket described by Mr. Brown is the same red hooded jacket observed in the 4 Seasons Convenience store surveillance video. No black and grey hooded jacket was found inside the GMC Envoy or found to be worn by A.P. or A.J.. Consequently, there are no inferences able to be drawn respecting who was involved with J.N.-F. in the Big Bee Variety robbery or the Circle K robbery. Certainly there was evidence linking A.P. to the re-theft of Mr. Brown's vehicle on March 4, 2018 because of the text exchange between J.N.-F. and A.P. ("A."), however, there were no distinctive articles of clothing observed in the surveillance videos worn by the first perpetrator who entered the convenience store prior to J.N.-F. who wore the distinctive black hoody with the grey rectangle with lettering on the back, which can be seen in the surveillance video of both the Big Bee Variety and Circle K robberies and was identical to the black hoody with the grey rectangle on the back between the shoulders J.N.-F. was wearing when he was arrested on March 7, 2018.
124The iPhone believed by Det. Baggio to be owned and used by A.P. had nothing on it linking A.P. to any of the robberies other than the text exchange with J.N.-F. concerning the obtaining of a "whip." It is my view there were no reasonable inferences available respecting who was involved with J.N.-F. where I have found on the totality of the evidence his identity can be determined beyond a reasonable doubt.
125It is clear from the surveillance videos that the individuals involved in these robberies wore gloves, most likely to prevent fingerprints from being left on surfaces in the convenience stores. However, I do not draw any conclusions from the colour of the gloves worn by the individuals involved in the robberies. There are occasions where certain individuals appear to be wearing similar coloured gloves from one robbery to the next, for example, someone is wearing orange coloured gloves at the Big Bee and Circle K robberies and someone appears to be wearing green or yellow gloves at the 4 Season and Circle K robberies. It is impossible to know if these are the same or identical gloves because of the quality of the surveillance videos. A further difficulty is that the hooded jackets being worn at the two robberies by the individual wearing orange gloves appears to be different as is the hooded jackets worn by the person wearing green or yellow gloves. I draw no conclusions from the colour of the gloves.
126In fact, J.N.-F. appeared to be wearing different coloured gloves at the Big Bee (black) and at the Circle K (green or yellow) robberies from the surveillance videos and the gloves he was wearing when he was arrested on March 7, 2018 were grey/black. The fact black gloves and an orange glove were found in the GMC Envoy when it was searched on March 8, 2018, perhaps indicates that different combinations of the three individuals who fled from the GMC were involved in the different robberies. It does not prove in my view that any one individual was involved in a specific robbery. The evidence led by the Crown does not support that the same two persons were involved in each of the convenience store robberies.
127The surveillance videos also disclose the perpetrators attempted to cover their faces in some fashion by using ski masks, balaclavas or scarves and sunglasses. Again, there was nothing distinctive concerning the coverings used by the perpetrators to hide their identities or facial features. There was a camouflage baseball cap, which in my view is distinctive and can be seen in the 4 Seasons Convenience store surveillance video being worn by the perpetrator wearing the black and grey hooded jacket. An identical camouflage baseball hat was found inside the GMC Envoy but I cannot see from the police photographs, Exhibit 32, where it was located inside the GMC or which of the three individuals it was beside or near. Consequently, it does not assist in linking one of the three individuals who were subsequently arrested as being involved in the 4 Seasons robbery.
128It is my view there is no evidence specifically linking J.N.-F. as being one of the two persons involved in the 4 Seasons Convenience store robbery on February 25, 2018. As a result I have a reasonable doubt as to his involvement in that robbery and the three charges relating to the 4 Seasons robbery are dismissed.
Released: July 18, 2019
Signed: Justice Peter C. West