Court of Appeal for Ontario

Date: 2018-12-05 Docket: C61947 & C62089

Justices: Sharpe, Hourigan and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Jason Nicholas Miles and Errol Anthony Brown Appellants

Counsel

Howard Krongold, for the appellant, Jason Nicholas Miles

Jeffrey Couse and Marianne Salih, for the appellant, Errol Anthony Brown

Kevin Rawluk, for the respondent

Hearing and Appeal

Heard: November 22, 2018

On appeal from the convictions entered by Justice Maria T. Linhares de Sousa of the Superior Court of Justice on April 8, 2015, and from the sentences imposed on March 18, 2016.

Reasons for Decision

Overview

[1] The appellants were convicted of three counts of robbery with a firearm, three counts of forcible confinement, and one count of breaking and entering a place and therein committing the indictable offence of robbery following a judge alone trial in the Superior Court of Justice. Both appeal their convictions and seek leave to appeal sentence.

[2] The charges arise from a robbery of an Ottawa technology store that occurred shortly after the store closed at 9:00 p.m. Three store employees were present in the store's office at the time of the robbery. Two were tied up with telephone cords. Four robbers were involved, two at the front of the store and two at the back. One of the robbers at the front of the store carried what appeared to be a firearm. The four robbers fled after the alarm was tripped. None of the store employees were able to identify the appellants as any of the robbers, nor could the appellants be identified from security camera recordings as any of the robbers.

[3] The crucial evidence linking the appellant Errol Anthony Brown to the robbery was the discovery of his Blackberry cell phone at the front of the store. Brown admitted that it was his Blackberry but in a video-recorded statement to police admitted at trial he told the police that he thought that someone had stolen it from him earlier on the same day as the robbery.

[4] A search of the Blackberry revealed that its user had exchanged text messages with a person labelled "Flyd" at the phone number 613-302-8150. That number was registered to "Steven Miles" and there was evidence that the appellant Jason Nicholas Miles was known in his family as "Steven". The Crown alleged that the content of certain text messages between Brown and "Flyd" indicated preparation for the robbery and cell phone tower evidence placed the "Flyd" phone proximate to the technology store in question prior to and during the robbery. The police found Miles' fingerprints on an iPod case touched by one of the robbers and on the exit door through which the robbers fled. Miles had previously worked at the store and the manner in which the robbery was carried out suggested knowledge of the store's layout and operation.

[5] Neither appellant testified.

Issues: Conviction Appeals

[6] The appellant Brown raises the following grounds of appeal from conviction:

1. The trial judge misapprehended evidence relating to the text messages;
2. The trial judge failed to consider reasonable inferences exculpating the appellant; and
3. The trial judge erred by concluding that the employee who was not tied up was forcibly confined.

[7] The appellant Miles adopts those grounds of appeal and raises the following additional ground:

4. The trial judge erred by relying on inadmissible hearsay evidence linking the appellant to a phone.

Analysis

1. Text Messages

[8] There were text messages on Brown's phone, exchanged during the day of the robbery, with "Flyd" and with someone labelled "J". The texts used street slang and the Crown called an expert to explain the meaning of the texts. At 11:32 a.m. on the day of the robbery, Brown texted "Flyd": "Yo wake up I got a plan and am ready to work dog". Slightly more than an hour later, Brown's message to "Flyd" asked to borrow his "lighter". Subsequent messages sent to "J" asked to borrow his "ting" or "thing". J responded that he did not want to lend "the ting out these days" and that "all the niggas hav been asking the same shit and im not lending them it either". The Crown expert testified that "lighter" and "ting" or "thing" were slang terms used to refer to a firearm and that on the street, persons who needed a firearm to do something would commonly borrow the firearm from its holder and then return it to the holder.

[9] It is common ground that the expert and, as a consequence, the trial judge, erroneously proceeded on the basis that the terms "lighter", "ting" and "thing" were all used in the texts between Brown and "Flyd" and did not take into account that some of the texts were between Brown and "J". Brown also argues that the trial judge placed undue weight on the text message evidence given the expert's concession in cross-examination that "ting" or "thing" could also refer to a car.

[10] Despite the conflation of the "J" and the "Flyd" texts, we are not persuaded that the trial judge erred in her overall treatment of the text message evidence. There was evidence that the terms used could refer to firearms and it was a reasonable inference to interpret the texts to mean that shortly before the robbery, Brown was searching for a firearm in coded language. We are not persuaded that had the trial judge focused on the fact that the texts involved "J" as well as "Flyd" she would have come to any different conclusion.

2. Reasonable Inferences Exculpating Brown

[11] Brown argues that the trial judge failed to consider that his phone could have been stolen and that she thereby reversed the onus of proof.

[12] We do not accept that submission. The trial judge did consider Brown's explanation and she applied a proper and thorough W.D. analysis to the statement he gave the police. The content of some of the text messages sent from the phone after the time Brown thought it could have been stolen suggested that the messages came from Brown. One of them used his nickname "Don". It was open to the trial judge to reject Brown's explanation about the phone being stolen and to conclude that it did not leave her with a reasonable doubt. This did not amount to reversing the onus of proof.

3. Forcible Confinement

[13] Brown argues that the trial judge erred by finding that the third employee who was not tied up was forcibly confined. He submits that any confinement of that employee was trivial and momentary and therefore did not meet the legal definition of forcible confinement. He argues that finding forcible confinement in this case would amount to finding that every robbery involves forcible confinement.

[14] We disagree. This argument was not advanced at trial and the trial judge's reasons reveal no legal error. She identified the proper legal test and found that the robbers restricted the employee within a very small office while they collected the cash. The robbers subsequently forced the employee to follow them to the back of the store and the exit door. This was not a trivial or momentary restriction of her liberty and it went well beyond the elements of robbery. It was therefore sufficient to amount to forcible confinement.

4. Hearsay Evidence

[15] The "Flyd" phone, 613-302-8150, was never recovered. It was a pre-paid phone that can be opened without verification of the buyer's identity. There was no evidence connecting Miles to the name "Flyd". As noted, however, the phone was registered in the name of "Steven Miles" and there was evidence that Jason Miles was known to his family as "Steven".

[16] The contentious evidence linking the appellant Miles to the "Flyd" phone is the information from a post-it note. A police officer testified that he asked Miles' cousin, with whom Miles lived, for Miles' phone number. The officer's evidence was that the cousin then went back into the house, returned and showed the police officer a post-it note reading "Steven = cell 613-302-8150". When the cousin testified at trial, he denied giving the police that information and stated that he could not recall Miles' phone number.

[17] In her reasons, the trial judge listed as one of the facts implicating Miles in the robbery that the cousin had identified him as having the cell-phone number 613-302-8150.

[18] The evidence from the police officer that the cousin showed him the post-it note was the equivalent of the police officer testifying as to what the cousin had told him about Miles' phone number. It was a second-hand statement that was hearsay when used to establish the truth of the fact that the number was that of Miles. It follows that the trial judge erred by attaching any weight to this evidence.

[19] However, we agree with the respondent's submission that even if this evidence were excluded, we should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and uphold Miles' convictions because the evidence against Miles was overwhelming: see R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 53, 56-57.

[20] First, the post-it note was not the only evidence linking Miles to the phone. The phone was registered in a name that Miles' family used to refer to Miles and the phone was used to communicate with Brown at the time of and in relation to the robbery in the vicinity of where the robbery took place. There was no evidence of any other "Steven Miles" and no such individual lived at the address listed on the subscriber information. In our view, there is no realistic possibility that without the impugned evidence, the trier of fact would not have found that the phone was that of Miles.

[21] Second, there was a strong body of other evidence linking Miles to the robbery. In addition to the evidence of the phone, Miles' fingerprints were found at the scene on merchandise the robbers dropped as they fled and on the exit door. Miles was a former employee and that gave him knowledge of the store's layout, where the cash was kept and the place where the more valuable merchandise targeted in the robbery was stored. Several months after the robbery the police encountered Miles in a car with Brown and Miles gave the police a false identity.

[22] In our view, there is no realistic possibility that the outcome of this trial would have been different had the post-it note evidence been excluded. Given the strength of the Crown's case, the appeal should be dismissed despite the legal error in admitting it.

Sentence Appeals

[23] Brown argues that the trial judge erred by imposing the four year mandatory minimum sentence for robbery with a firearm pursuant to s. 344(1)(a.1) of the Criminal Code. He submits that the trial judge erred in finding both that he had knowledge that a firearm was used and that a real firearm was used as opposed to an imitation firearm.

[24] In our view, there was ample evidence from which the trial judge could conclude that Brown knew that a firearm was used in the robbery. His cell phone was used shortly before the robbery in an attempt to secure a firearm. There was evidence that all four robbers acted in concert. They arrived and left at the same time. The firearm was openly visible during the course of the robbery. We see no merit in this ground of appeal.

[25] Brown further contends in a submission made in his factum but not pressed in oral argument that there was insufficient evidence to establish that a firearm as opposed to an imitation firearm was used in the robbery. He submits that all of the evidence relating to the firearm came from the three employees. One of these employees testified that she was unfamiliar with firearms, another was traumatized by the robbery and had a poor memory of the incident, and the third testified that he did not get a good look at the firearm.

[26] We do not accept this submission. There is no question that one of the robbers used a gun, whether real or imitation. The description of the gun given by the three employees and the manner in which it was used were entirely consistent with it being a real firearm and there was no evidence that it was not. In our view it was open to the trial judge to find on this record that a firearm was used to commit this robbery.

Disposition

[27] For these reasons the appeals from conviction are dismissed. Leave to appeal sentence is granted but the sentence appeals are dismissed.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

G.T. Trotter J.A.