Court of Appeal for Ontario

Date: 2022-03-01 Docket: C68105

Judges: Tulloch, Huscroft and Miller JJ.A.

Between: Her Majesty the Queen Respondent

And: Jerome Turner Appellant

Counsel: Richard Litkowski, for the appellant Linda Shin, for the respondent

Heard: February 22, 2022 by video conference

On appeal from the conviction entered on October 31, 2019, and the sentence imposed on February 21, 2020 by Justice Susanne Boucher of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was found guilty following trial by jury on five counts of armed robbery arising out of the robbery of several convenience stores. He appeals conviction and sentence.

[2] The appeal is dismissed for the reasons that follow.

Background

[3] The robberies occurred within a twelve-day period in 2017. All the robberies were committed by two people wearing face coverings, gloves, and hoodies. The taller of the two robbers threatened the clerk with a knife, while the shorter of the two took the money and goods.

[4] After the fifth robbery, the police discovered a black Acura that matched the description of the car seen at the location of the fourth robbery. Items inside the car appeared connected to the robberies. The police seized the car and impounded it. They determined that the car belonged to Gornes Gittens, who was arrested shortly afterwards, and subsequently pleaded guilty to all five robberies. Cell phone records revealed calls and messages between the appellant and Gittens before and after two of the robberies. Personal items inside the car had the appellant’s DNA on them, and there was an ID with his personal information, including his name, Jerome Turner.

[5] The sole issue at trial was the identity of the taller perpetrator.

[6] The appellant raises several issues on appeal. We address each of them in turn.

Similar Fact Ruling

[7] The trial judge granted the Crown’s application to use the similar fact evidence across counts to prove identity.

[8] The appellant argues that the trial judge erred in applying the test set out by the Supreme Court in R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228. The appellant raises a number of dissimilarities between the robberies and submits that the facts common to the robberies were not sufficiently distinctive to suggest that the perpetrators were the same two individuals each time. He argues that the composition of the perpetrators was not always constant and one or more other persons could have been involved.

[9] We disagree.

[10] The trial judge carefully considered the similarities and differences. She found that both the general circumstantial and specific individualized factors established that it was highly likely that the same two people performed the individualized roles in committing all five robberies.

[11] All of the robberies occurred within a twelve-day timespan in convenience stores late at night, in the southwestern part of the Greater Toronto/Hamilton area. The robbers always wore gloves, face coverings, and hoodies. The trial judge acknowledged that these factors would be meaningless on their own, but when considered with the specific factors, the general circumstantial factors were part of the unifying considerations supporting the probability that the same two individuals were involved in each robbery. The specific similarities were striking and included the following:

• Every robbery was a two-person job;
• The shorter person and the taller person played the same roles in each of the robberies;
• The shorter person had a distinctive posture;
• The shorter person entered each location after the taller person and acted as the bag man in every robbery;
• The taller person controlled the store clerk and brandished the knife in every robbery;
• The taller person had a distinctive posture;
• The taller person performed a signature move in jumping the counter; and
• The shorter person and the taller person wore clothing of the same size, shape, colour, and style in all of the robberies.

[12] The trial judge considered the dissimilarities but concluded that they did not detract from the cogency of the similarities to any significant degree. Her conclusion that it was highly likely that the same two people committed all five robberies is reasonable and amply supported by the record.

[13] The trial judge properly went on to conclude that there was evidence linking the appellant to the similar fact evidence, as required by Perrier. Among other things, the evidence linking the appellant included the appellant’s DNA on a blue rubber glove used in two of the robberies and found in the black Acura, which was identified as the getaway vehicle; video evidence from one of the robberies; and text messages placing the accused with Gittens at the relevant times or dates for the offences.

[14] Finally, the trial judge considered the potential prejudice to the appellant and concluded that it was outweighed by the high degree of probative value she found in the evidence. Her analysis is clear and thorough and there is no basis for this court to interfere. The similar fact application was properly granted. We see no errors in the trial judge’s instructions to the jury concerning the use of the similar fact evidence.

Post-Offence Conduct

[15] The appellant argues that a text message sent from the appellant’s phone to Gittens shortly after Gittens’s arrest should not have been admitted as post-offence conduct evidence from which guilt could be inferred, because there was no independent evidence of fabrication. In that text, the appellant expressed concern that Gittens’s car had been stolen and said that he spent $55 on a cab to get home as a result of the theft.

[16] There is no merit to this argument.

[17] There was ample evidence of fabrication, and the trial judge properly applied the law in R. v. O’Connor (2002), 62 O.R. (3d) 263 (Ont. C.A.). This included evidence of a ten-minute phone call from Gittens to the appellant after his car had been seized by the police, and before Gittens reported that the car had been stolen. A subsequent phone call by Gittens to the appellant, followed by the arrest of Gittens, preceded the appellant’s text message to Gittens expressing concern that his car had been stolen. These were all circumstances surrounding the appellant’s text that afforded independent evidence of fabrication. The trial judge explained why it did not matter that the text was sent to Gittens rather than to the police. It was open to the jury to conclude that the appellant had an interest in the theft narrative because the car contained inculpatory evidence and fit the description of the car seen leaving the scene of the fourth robbery.

[18] We see no error in the trial judge’s instructions to the jury on this point.

Section 8 Rulings

[19] The trial judge made two s. 8 rulings. In the first, she ruled that a warrantless search of Gittens’s cell phone violated the appellant’s s. 8 rights and excluded two pieces of evidence as a result: the appellant’s contact information, and a statement from the appellant in which he told the police that Gittens picked him up, that they went to his sister’s house, that Gittens’s car was stolen, and that he had to take a cab home. This ruling is not challenged on appeal, but it informs the second ruling.

[20] The appellant made a second s. 8 application to exclude his subscriber information, text messages and cellphone tower information, all of which was obtained from Gittens’s cellphone pursuant to a production order. The trial judge excised references to the search of Gittens’s cellphone and references naming the appellant as “Bounty”, but otherwise dismissed the application.

[21] The appellant argues that the trial judge’s approach to excision was too narrow and that subsequent investigative steps taken by the police that yielded additional information were inextricably linked to the initial search of Gittens’s phone, which formed the basis for the first s. 8 ruling finding a breach. We disagree.

[22] The court’s task on appeal is to determine whether the trial judge could have issued the production order, not whether this court would have done so. The trial judge acceded to most of the appellant’s requested excisions from the ITO and fully explained her reasons for denying the appellant’s other requests. In the absence of an error in principle, her decision is entitled to deference. We see no such error. The trial judge went on to conclude that, in the event she was wrong, the evidence should not be excluded under s. 24(2). We note that there is no challenge to her decision in this regard.

Sentence

[23] The appellant argues that his sentence – 21 months on each count less pre-trial custody – was too harsh. There is no basis to impugn the sentence in this case. The trial judge did not err in law or principle, nor can it be said that the sentence imposed was demonstrably unfit. On the contrary, in light of the appellant’s previous six-year sentence for ten similar robberies and the commission of the first of these offences only three days following the end of his parole period, the sentence imposed was at the low end of the range.

Conclusion

[24] The appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“B.W. Miller J.A.”