COURT OF APPEAL FOR ONTARIO
DATE: 20220401
DOCKET: C67342, C69515, C67344, C68039, C67336, C69507, C67343 & C69506
Fairburn A.C.J.O., Miller and George JJ.A.
DOCKET: C67342 & C69515
BETWEEN
Her Majesty the Queen Appellant/ Respondent by way of cross-appeal
and
Samuel Atwima Respondent/ Appellant by way of cross-appeal
DOCKET: C67343 & C69506
AND BETWEEN
Her Majesty the Queen Appellant/ Respondent by way of cross-appeal
and
Triston Johnson Respondent/ Appellant by way of cross-appeal
DOCKET: C67344 & C68039
AND BETWEEN
Her Majesty the Queen Appellant/ Respondent by way of cross-appeal
and
Kevin Okrah Respondent/ Appellant by way of cross-appeal
DOCKET: C67336 & C69507
AND BETWEEN
Her Majesty the Queen Appellant/ Respondent by way of cross-appeal
and
David Ratnam Respondent/ Appellant by way of cross-appeal
Counsel: Roger Pinnock and Erica Whitford, for the appellant/respondent by way of cross-appeal Joelle Klein, for the respondent/appellant by way of cross-appeal Samuel Atwima Andrew Stastny, for the respondent/appellant by way of cross-appeal Triston Johnson Faisal Mirza and Melody Izadi, for the respondent/appellant by way of cross-appeal Kevin Okrah Shedrack Agbakwa and Grant Purves, for the respondent/appellant by way of cross-appeal David Ratnam
Heard: February 16 and March 3, 2022 by video conference
On appeal from the acquittals entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on July 29, 2019 and July 30, 2019 (C67342, C67343, C67344, & C67336).
On appeal from the stay entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on July 23, 2019 (C67336).
On appeal from the convictions entered by Justice Sharon Lavine of the Superior Court of Justice, sitting with a jury, on August 16, 2019 (C69515, C69506, C68039, & C69507).
Fairburn A.C.J.O.:
I. OVERVIEW
[1] On March 13, 2017, four masked men attempted to enter a jewellery store. They were unsuccessful. Thirty minutes later, four masked men, dressed in the same attire as those at the first jewellery store, gained entry to and robbed a second jewellery store close by the first one. The next day, four masked men robbed a third jewellery store, not far from the first two stores. Each incident was caught on video. The getaway car was also caught on video at the second and third stores.
[2] About 90 minutes following the final robbery, police located the getaway car and a high-speed police chase ensued. When the car finally came to rest, Mr. Ratnam was removed from the driver’s seat, Mr. Johnson from the front passenger’s seat, and Mr. Atwima and Mr. Okrah from the back. There was also a fifth person in the back. He was separately tried as a young offender.
[3] The four adults were tried by judge and jury in the Superior Court of Justice. The indictment contained ten counts in total, including a count of attempt to commit robbery, accompanied by a count of disguise with intent to commit an indictable offence. The indictment also contained two counts of robbery, each accompanied by counts of disguise with intent to commit an indictable offence and use of an imitation firearm while committing an indictable offence. Finally, the indictment contained one count of aggravated assault and one count of failing to stop. All four accused faced each count except the fail to stop. Only Mr. Ratnam, who was in the driver’s seat of the getaway car, was charged with that offence.
[4] The jury started hearing evidence on June 20, 2019. About four weeks later, the Crown closed its case and the jury was sent home so the trial judge could hear two applications: (1) the Crown applied to have similar act evidence admitted across all counts to prove identity; and (2) Mr. Ratnam, on the basis of lost evidence, applied for a stay of proceedings in relation to the count of failing to stop.
[5] The trial Crown’s similar act application was allowed only in part, leaving the Crown unable to prove identity on multiple counts. This gave rise to applications for directed verdicts of acquittal in relation to many counts. Those applications were successful, and acquittals were entered on multiple counts. In addition, the fail to stop count was stayed.
[6] Almost a month after the Crown’s case had closed, the jury was recalled to decide the case on what remained of the indictment. The jury returned guilty verdicts on almost all counts. A chart containing all the counts and verdicts is included at Appendix “A” to these reasons.
[7] The Crown appeals from the directed verdicts of acquittal on the basis that the trial judge erred in law when she excluded similar act evidence across counts to prove identity. In particular, the Crown contends that the trial judge’s reasons on the similar act application are insufficient. The Crown also appeals from the stay of proceedings in relation to the count involving the fail to stop.
[8] Mr. Ratnam, Mr. Johnson, Mr. Atwima and Mr. Okrah (collectively “the respondents”) each bring a cross-appeal, raising five issues in total. Those appeals are directed at the convictions.
[9] For the reasons that follow, I would grant the Crown appeal and dismiss the cross-appeals.
II. BACKGROUND
[10] On March 13, 2017, in broad daylight, four masked men attempted to gain access to Graziella Fine Jewellery in Ajax, Ontario. The door was locked, and an employee refused to open it. The men eventually left when they could not gain access to the store. Everything was caught on video. One of the men was carrying a red Adidas bag. The men were wearing:
- Man One: a black hoodie with white stripes and white logo
- Man Two: a light grey jacket with three stripes on the sleeves
- Man Three: black clothing
- Man Four: black clothing
[11] Thirty minutes later, four masked men approached the door of Galbraith Jewellers, which is located very near Graziella’s. Again, the men were caught on video. Again, one of the men was carrying a red Adidas bag. Again, the men were wearing:
- Man One: a black hoodie with white stripes and white logo
- Man Two: a light grey jacket with three stripes on the sleeves
- Man Three: black clothing
- Man Four: black clothing
[12] The difference this time was that the men succeeded in gaining entry to the jewellery store. Once inside, they brandished two guns. The men dominated the employees and customers, two of whom testified at trial about feeling what they believed to be guns on their backs when they were made to lie on the floor. One of the masked men used a hammer with white tape to smash the jewellery cases. Another placed the jewellery in a black Adidas backpack. Then they left.
[13] A small blue car was waiting for the men, with a driver behind the wheel. This was all caught on video. They made good their escape.
[14] The next day, again in broad daylight, four masked men were again caught on video, this time gaining entry to Valdi’s Jewellery Shop in Oshawa, Ontario. Valdi’s was a short drive from the other two jewellery stores. Again, there were two guns. Again, the store employee was dominated. Again, one of the men used a hammer with white tape to smash the jewellery cases. Again, one of the men placed the jewellery in a black Adidas backpack. Again, a small blue car was waiting for them with a driver behind the wheel. Again, they made good their escape, but this time it was not for long.
[15] The only significant difference between the two robberies was that an employee at the second jewellery store was badly assaulted by the masked men. He sustained multiple lacerations to his head and broken teeth.
[16] Not even 90 minutes after the second robbery, a small blue car was located close to the scene. The police ascertained its location by pinging Mr. Ratnam’s cellular phone. Those pings were sent out by the police after they discovered that Mr. Ratnam had rented a small blue car the previous day, prior to the attempted robbery. A Hertz Rental Record was filed in evidence, establishing that Mr. Ratnam rented the small blue vehicle under his name.
[17] A high-speed police chase ensued, with a police vehicle being struck at one point by the blue vehicle and a police vehicle striking a civilian vehicle. Eventually, the police brought the blue vehicle to rest on Highway 401. Police removed the respondents from the car. Mr. Ratnam, who had been driving the vehicle, had an imitation firearm in his pocket.
[18] Some of the items found in the vehicle included:
(1) an imitation firearm on the backseat; (2) jewellery and other items from both robberies; (3) price tags, receipts and boxes from the jewellery shops; (4) a black Adidas backpack; (5) shoes containing glass shards; (6) a hammer with white tape; (7) clothing, some of which was similar to the clothing seen on the perpetrators the day before at the scene of the attempted robbery and the first robbery; and (8) blood from the victim of aggravated assault, including on a grey Adidas jacket with three stripes on the sleeves.
[19] When many of those items, such as the hammer, clothing, and firearms, were compared with the images captured on video at the scenes of the crimes, the resemblance was striking in nature.
[20] Mr. Atwima’s phone also contained some highly probative circumstantial evidence, connecting him to each crime scene, including the scene of the attempted robbery. For instance, on March 13 and 14, 2017, the days of the crimes, Mr. Atwima’s phone search history included:
(1) “jewelry store in oshawa”; (2) “jewelry in oshawa”; (3) “small ajax jewelry”; (4) “Valdi’s Jewellery Shop Oshawa, ON”; (5) “Ron Ga braith Jewellers Ajax, ON”; and (6) “oshawa jewlery”.
[21] This was a powerful Crown case.
III. CROWN APPEAL
(a) Overview
[22] As previously noted, the Crown appeal rests on two broad grounds. The Crown argues that the trial judge erred in law when she: (1) excluded similar act evidence across counts to prove identity; and (2) stayed the proceedings in relation to the count involving fail to stop. I agree that the trial judge committed both errors.
[23] I will start with the ground of appeal involving the similar act evidence.
(b) The Error in Relation to the Similar Act Evidence
(i) Overview
[24] Trial judges face inherent challenges when dealing with multi-accused, multi-count indictments involving Crown applications to admit similar act evidence across counts. Owing to the nature of these applications, typically brought at the end of the Crown’s case, and outside the presence of the jury, there is often a good deal of pressure placed upon trial judges to apply complex legal principles to lengthy factual records, while being mindful not to keep the jury waiting for too long.
[25] That was the challenging situation the trial judge faced in this case. The record demonstrates that as she worked her way through the issues she was keenly alive to the fact that the jury was waiting and made efforts to move the matter forward as expeditiously as possible. Despite those best efforts, as will be seen, the application developed a life of its own, and ultimately ended in error.
(ii) The Parties’ Positions at Trial
[26] Immediately after the prosecution’s case closed, the jury was sent home, the trial Crown laid out its arguments for why the evidence on each count should be admissible on the other counts to prove the identity of each accused.
[27] The trial Crown’s primary position was based upon a theory of group similar act: that the crimes were strikingly similar in nature and that each was committed by the same group of men, that the accused were those men and that there was evidence specifically linking each accused to the group at the relevant time.
[28] The trial Crown’s secondary position was that, even if the trial judge was not satisfied that the group was constant, the similar act evidence was still admissible across counts to prove the respondents’ identity in each crime. This secondary position was rooted in the submission that the crimes were all strikingly similar in nature and, with the exception of Mr. Okrah, there was independent evidence linking each of the accused to each of those crimes. In relation to Mr. Okrah, and for reasons that are not entirely clear on this record, the trial Crown seems to have been of the view that there was only independent evidence linking Mr. Okrah to the last robbery scene. [1]
[29] The respondents took different positions in response to the trial Crown’s similar act application.
[30] Mr. Atwima conceded the entire application, acknowledging that the similar act evidence could apply across counts to prove his identity. [2]
[31] Mr. Johnson conceded the similar act application as it related to the robberies, but not the attempted robbery. Therefore, he acknowledged that the jury could properly receive a similar act instruction in relation to the Galbraith and Valdi’s robberies (and the associated counts connected to those robberies).
[32] Mr. Okrah altogether resisted the cross-count application of the evidence. While he acknowledged the highly similar nature of the crimes, he maintained that there was no evidence linking him to any of those crimes. His presence in the getaway car shortly after the second robbery was said to be just that: presence in a car.
[33] Mr. Ratnam also resisted the cross-count application of the evidence. While he was prepared to accept that he was linked to the final robbery by virtue of his status as the driver of the getaway car, he maintained that there was no other evidence linking him to any of the other crimes.
(iii) The Law of Similar Act Evidence to Establish Identity in the Group Context
[34] Before reviewing the rulings appealed from, it is helpful to first summarize the legal principles underpinning the trial Crown’s application. These legal principles provide some necessary context for the impugned rulings, which I will review in the following section of these reasons.
[35] I start by noting that the trial Crown was not seeking to admit similar act evidence that was extraneous to the indictment into the trial but was seeking to admit similar act evidence across counts on the indictment. Therefore, the entire subject of the similar act application was already intrinsic to the indictment and included evidence that the jury had already heard.
[36] As similar act evidence is presumptively inadmissible, even across counts, the sole question to be resolved at the application was whether the jury would be required to determine the issue of identity on each count by considering only the evidence admitted on that count (the presumptive position) or whether the jury would be entitled to determine the issue of identity on each count by considering all of the evidence heard at trial (the similar act position): see R. v. Poulin, 2017 ONCA 175, 346 C.C.C. (3d) 191, at para. 40.
[37] The onus rests on the Crown to establish the admissibility of similar act evidence by satisfying the trial judge that its probative value outweighs its potential prejudicial effect in the context of the particular case: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. The ultimate weighing of probative value and prejudicial effect requires an initial calibration of both.
[38] The probative value of similar act evidence springs from the objective improbability of coincidence: Handy, at paras. 47-48. In contrast, the prejudicial effect of similar act evidence springs from the moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice is rooted in concerns over whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice is rooted in concerns over things like the potential injection of delay and complexity into a trial, as well as juror distraction and confusion: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. See also: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at paras. 110-11. Of course, many of these concerns for prejudice will be attenuated, like in this case, where the application to admit similar act evidence relates to the cross-count use of evidence already elicited at trial: see R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24; R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87.
[39] Coming back to probative value, where the issue upon which the evidence is proffered is identity, such as this case, the demand for similarity between acts increases. The bar for similarity in the identity context is often referred to as a “high degree of similarity” or “strikingly similar”: R. v. Arp, [1998] 3 S.C.R. 339, at para. 45. See also: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 20; R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 98. The reason for the heightened bar for similarity relates to the driver of cogency in relation to similar act evidence used to establish identity: “the improbability that two persons would display the same configuration of matching characteristics in committing a crime”: Perrier, at para. 19. See also Handy, at para. 78.
[40] At the first stage of the similar act analysis involving questions of identity, the similarity stage, the court looks to the acts and asks how similar they are. From time-to-time, acts will contain signatures or trademarks, such that their similarity will be striking: Arp, at para. 45. See e.g., R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at paras. 5, 10, 12 and 24. More frequently, though, the requisite degree of similarity will result from an accumulation of commonalities, none of which will be sufficiently significant to constitute a signature or trademark.
[41] In assessing whether the evidence has that cumulative effect, we take guidance from Handy, at para. 82, where Binnie J. provided the following list of helpful considerations: (a) the “proximity in time of the similar acts”; (b) the “extent to which the acts are similar in detail”; (c) the number of occurrences involved; (d) the “circumstances surrounding or relating to the similar acts”; (e) the distinctive features involved in those acts; (f) whether there were any intervening events; and (g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.”
[42] Where the evidence of similarity points towards the acts having been likely committed by the same person, the trial judge must go on to the second stage and consider whether there is evidence linking the accused to the similar acts: Perrier, at paras. 23-24; R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), at para. 81; and Arp, at paras. 54-56. There need only be “some evidence” linking the accused to those acts: R. v. Sweitzer, [1982] 1 S.C.R. 949, at p. 954; Arp, at paras. 56-57; and Perrier, at para. 24. The “some evidence” threshold requires more than mere opportunity or possibility but does not demand more than “some evidence” upon which it can be said that the acts were in fact the acts of the accused: Sweitzer, at p. 954, cited with approval in Arp, at paras. 54, 56-57, and in Perrier, at paras. 23-24. See also Durant, at para. 91. This has been characterized as a “low evidentiary threshold” at the admissibility stage: Jesse, at para. 63.
[43] Such are the legal principles underpinning the trial Crown’s secondary position: that there was a high degree of similarity between the crimes and that, except for Mr. Okrah, there was some evidence linking each of the respondents to each of those crimes.
[44] As for the trial Crown’s primary position, it rested on a theory of group similar act, the legal principles for which are set out below.
[45] Crimes committed by groups can present special challenges in the context of similar act evidence applications aimed at proving the identity of an individual accused. To use group similar act evidence to establish individual identity (as opposed to group identity), the Crown must first establish that it is “highly improbable” that more than one group “employing the same modus operandi committed the crimes at issue”: Perrier, at para. 26. The same factors outlined in Handy, at para. 82, will be used to determine that degree of improbability.
[46] Once the requisite degree of improbability has been established, then the Crown must go on to establish a link between the individual and the crimes of the group. This is because it is individuals, not groups, who ultimately bear the responsibility for crimes. Therefore, even where it is highly improbable that different groups committed the crimes, “the ‘signature’ of the offence is the ‘signature’ of the group only”: Perrier, at para. 25.
[47] Accordingly, where group similar act evidence will be used to identify a particular accused, linkage evidence remains critical to the admissibility analysis. The means by which to identify that link, though, will fluctuate depending on whether the group’s membership remains static across the acts or whether the group’s membership rotates across the acts.
[48] Justice Major in Perrier, at para. 25, addressed both scenarios, first dealing with the situation where the group has static membership and then dealing with the situation where the group membership rotates:
If the Crown can prove that membership in the gang never changed and that all members were present and participating in all offences, then the signature of the group will be the signature of the accused such that a similar fact instruction will likely be justified (provided that the overall probative value of the evidence outweighs its prejudice). However, where group membership was not constant, the fact that an individual may have been a member of the gang on one occasion proves nothing more than a mere possibility that he was a member on another occasion. In this case 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. [Emphasis added.]
Recall that in this case, it was the trial Crown’s primary position that, to adopt the words of Perrier, at para. 25: “membership in the gang never changed and that all members were present and participating in all offences”.
[49] Perrier goes on to describe in more detail the means by which to prove the link between the individual accused and the group. At para. 32(1), Major J. addressed how to establish that link in the context of a group with static membership:
If the Crown can prove that group membership never changed, that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact. [Emphasis added.]
[50] Where the Crown cannot prove “that group membership never changed” and “that the gang always remained intact and never committed the criminal acts unless all were present”, then in accordance with Perrier, at para. 32(2), the following must be established:
Where membership in the group is not constant … then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused. This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. [Emphasis added.]
(iv) The Cascading Rulings and Clarifications
[51] By way of recap, based on the legal principles set out above, the trial Crown argued first that the similar act evidence should be admitted across counts on the basis of group similar act: the crimes were strikingly similar in nature, each was committed by the same group of men, the accused were those men, and there was evidence specifically linking each accused to the group at the relevant time: Perrier, at paras. 25, 32(1). In the event that the trial judge, as the gatekeeper of this evidence, was not satisfied that “group membership never changed”, then, aside from Mr. Okrah, there was an “additional link” or “connection” in the sense of “independent evidence linking the accused to each crime”: Perrier, at paras. 25, 32(2).
[52] After the similar act evidence ruling went under reserve, the jury started expressing concerns over delay. Two jurors had to be relieved of their duties. Accordingly, pressure was mounting to move the matter along. Against that backdrop, the trial judge gave what I will describe as the “initial ruling”, prefacing the ruling with the observation that she was reserving “the right to provide fuller reasons.” The full extent of the initial ruling follows:
The Crown seeks the admission of the evidence in each count in respect of the other counts on the indictment in relation to each of the individual accused on the basis of group identity. I am not satisfied that the Crown has established constancy of the group. I am not satisfied that Mr. Okrah is sufficiently connected to both robberies. In this context, an admission of evidence on a group identity basis would cause potential prejudice to Mr. Okrah and undue complexity. The application, as brought on a group identity basis, is dismissed.
[53] The trial Crown sought immediate clarification as to whether this ruling related only to Mr. Okrah “or all persons”. A good deal of back and forth ensued. Eventually, on the same day as the initial ruling, and despite the confusion swirling around the breadth of the ruling and the fact that applications for directed verdicts of acquittal were yet to be heard, all agreed that the jury could be recalled so that the defence case could be closed. Each accused elected to call no defence.
[54] The jury was again sent home and the dialogue about the reach of the similar act ruling continued. This resulted in the trial judge providing what I will refer to as the “first clarification”:
When I stated I am not satisfied the Crown has established the constancy of the group, I am not satisfied that Mr. Okrah is sufficiently connected to both robberies. What should be clear, is that by saying [the group has not been established], I was then, as counsel had all submitted during the application, referring to the alternate option that two independent evidence linking the accused to both robberies was then required and as I had understood, [the Crown] had conceded that there was only one connection for Mr. Okrah. Mr. Okrah was therefore not sufficiently connected to both robberies and therefore the required connectivity was not made out. I did not refer to Mr. Atwima or Mr. Johnson, because it was conceded by them that similar act evidence was admissible against them and it is implicit in my ruling, having not mentioned Mr. Ratnam, that I was satisfied that the connectivity requirement had been made out for Mr. Ratnam. [Emphasis added.]
[55] On my reading, the trial judge’s first clarification seems to suggest that, while the Crown’s primary position had failed, the Crown’s secondary position had succeeded. Therefore, the similar act evidence would be admissible against all but Mr. Okrah in relation to both robberies and the attempted robbery.
[56] Requests for further clarification continued. This resulted in what I will refer to as the “second clarification”, where the trial judge agreed with the trial Crown’s stated understanding of the scope of the ruling: “I heard Your Honour’s ruling to be that it’s admissible on all matters in relation to Mr. Atwima, Johnson, and Ratnam.” The trial judge responded affirmatively.
[57] Eventually court adjourned for the weekend. Requests for clarification continued on the Monday. After much back-and-forth, a brief “final ruling” was given:
Having considered the submissions of counsel, I am not satisfied that in the context of this case, with different jointly charged accused on the two robbery charges, that similar fact evidence can be admitted on a group identity basis without undue complexity and the prejudicial effect outweighing the probative value. The similar fact evidence with respect to Mr. Johnson and Mr. Atwima will be admitted.
[58] Again, counsel sought clarification. I will refer to what came of those requests as the “final clarifications.” Counsel to Mr. Johnson asked whether the final ruling related only to the robberies and not the attempted robbery. The trial judge confirmed the similar act would only apply across robbery counts and only in relation to Mr. Johnson and Mr. Atwima.
[59] Mr. Ratnam’s counsel asked for clarification as to where Mr. Ratnam stood on the question of admissibility. The trial judge responded that the evidence was only admissible across the robbery counts as it related to Mr. Johnson and Mr. Atwima. The trial judge’s comment therefore implied that the Crown’s similar act application, as it related to Mr. Ratnam, was dismissed. At least all parties proceeded on that understanding.
[60] As for Mr. Okrah, it was clear from the initial ruling that the trial Crown’s application was dismissed on the basis that the trial judge was not satisfied that the trial Crown had established that the group membership remained constant.
[61] Therefore, as between the initial ruling and the final clarifications:
(1) things remained static in relation to Mr. Okrah, with the entire similar act application dismissed; (2) between the first and final clarifications, the trial Crown’s application to admit similar act evidence across all counts in relation to Mr. Johnson and Mr. Atwima went from being granted across all counts to being dismissed as it related to the counts involving the attempted robbery; and (3) between the second clarification and the final clarifications, the trial Crown’s application to admit similar act evidence across all counts in relation to Mr. Ratnam went from being granted across all counts to being dismissed across all counts.
[62] Subsequent reasons were never provided to explain how the trial judge reached these results.
[63] Once the final clarifications were given, applications for directed verdicts of acquittal flowed. There is no need to get into the complexity of how those applications unfolded. What is important is that, at the end of the day, directed verdicts of acquittal were entered for each accused in relation to the count of attempted robbery and its related count of wearing a disguise. Mr. Okrah also obtained directed verdicts of acquittal on all counts arising from the Galbraith robbery on March 13, 2017 (the first robbery).
(v) The Parties’ Positions on Appeal
[64] The Crown’s fundamental objection on appeal is that the similar act application was resolved in a “perfunctory” way, without providing any insight into how the decision was reached. In short, the Crown contends that the rulings and clarifications fall well short of providing any degree of reasoning as to why the evidence was excluded, evidence that the Crown maintains called out for admission across all counts.
[65] While acknowledging that the reasons are somewhat thin, the respondents maintain that the rulings and clarifications must be read together, in light of the record as a whole and the parties’ positions taken at the voir dire. When considered in their proper context, the reasons are said to reveal a chain of reasoning that is sufficient to explain why the trial Crown’s application largely failed at trial. It is said that we should defer to that result.
(vi) The Failure to Provide Reasons
[66] Trial judges have an obligation to provide reasons for their decisions. At their core, reasons provide a level of public accountability for all judicial decisions, an accountability that is fundamental to maintaining the rule of law. Reasons serve important purposes, including: justifying the result, explaining to the public how the result was achieved, telling the party that lost why they lost, allowing for informed consideration as to whether an appeal should be taken, and if an appeal is taken, allowing for effective appellate review: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 35.
[67] Of course, when it comes to evidentiary rulings, the failure to provide reasons will not always be fatal “provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances”: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 156, leave to appeal refused, [2017] S.C.C.A. No. 225; R. v. Barrett, [1995] 1 S.C.R. 752, at para. 1.
[68] Although the standard for reasons in evidentiary rulings is more relaxed, an overarching duty of procedural fairness nevertheless remains. The subject matter of a ruling will necessarily inform the determination of whether procedural fairness requires that more detailed reasons, as opposed to bottom line rulings, be given: Tsekouras, at para. 156. Where an evidentiary ruling is pivotal to one of the parties’ positions, and especially where it carries the weight of that party’s case, the duty of procedural fairness is heightened and there will sometimes be a requirement for reasons that are more akin to those we expect in the context of a judgment: see R. v. Woodard, 2009 MBCA 42, 245 C.C.C. (3d) 552, at para. 25.
[69] Undoubtedly, the trial Crown’s similar act evidence application carried the whole weight of the prosecution’s case in the context of the attempted robbery. And, based upon the trial Crown’s concession at trial, it carried the weight of the prosecution’s case as it related to Mr. Okrah’s alleged involvement in the Galbraith robbery. To understand the centrality of the similar act evidence to the prosecution’s case one need look no further than the fact that the directed verdicts of acquittal were entered as a result of the similar act evidence rulings and clarifications. Accordingly, the duty of procedural fairness required that at least some reasoning be provided for excluding the similar act evidence.
[70] That duty was not met. There were formidable factual underpinnings to the similar act application that suggested the need in this case for an explanation. A proper application of the facts to the Crown’s primary and, indeed, secondary positions, pointed powerfully towards the admission of the similar act evidence, evidence that was already intrinsic to the indictment, across all counts to prove identity.
[71] Even when all of the rulings and clarifications are considered together, the trial judge never explained how she reached the conclusions she did. At the end of the reasons and clarifications, one is left wondering about the most important question: why? Why exactly was the evidence of similar acts excluded? Where did the Crown’s argument fall short? Why was the evidence of linkage judged to be insufficient?
[72] This was not a marginal Crown application. The Crown presented a formidable case for the admission of similar act evidence across counts to establish identity. The striking similarity between the crimes and the static nature of the membership of the group that committed those crimes springs from the videos of each crime, still-shots taken, and witness accounts.
[73] Starting with the actual robberies: they were proximate in time, similar in detail, and contained distinctive features. The victim stores were geographically proximate to each other. They were robbed less than 24 hours apart. They were both small business operations. Video footage shows that the four masked men played similar roles once inside of those jewellery stores. The victims were dominated in a similar fashion. Two of the men wielded firearms. One yielded a hammer with white tape. The hammer was used to break the jewellery cases and the jewellery was placed into a black Adidas backpack. A fifth person, the driver, waited nearby in the same small blue getaway car. To reiterate, all of this was caught on videotape.
[74] Regarding the attempted robbery, like the robberies, it also involved a small business operation. The scene of the attempted robbery was mere minutes away by car from the scene of the first robbery. The first and second crimes were committed 30 minutes apart, and all three crimes were committed in broad daylight.
[75] Further, like the robberies, the attempted robbery involved four masked men. Those men were of similar builds to the men seen in the other videos captured at the other crime scenes. Importantly, the men, who robbed Galbraith’s only 30 minutes after the attempted robbery of Graziella’s, were wearing exactly the same clothing:
- Man One: a black hoodie with white stripes and white logo
- Man Two: a light grey jacket with three stripes on the sleeves
- Man Three: black clothing
- Man Four: black clothing
[76] In summary, there was a powerful argument to be made that there was a striking similarity between the two actual robberies and that they were committed by the same four men. There was also a powerful argument that the four masked men who walked into and robbed Galbraith’s (the same men who robbed Valdi’s the next day) were exactly the same men who attempted to rob the first jewellery store. In other words, there was a powerful Crown argument that each crime was committed by the same group of men, that the accused were those men, and that the respondents, by virtue of their presence in the getaway car after the Valdi’s robbery, a car which contained items associated to the crimes, were linked to the group at the relevant time.
[77] As for the trial Crown’s secondary position, requiring “some evidence” linking the accused to each of the similar acts, describing it as a strong position would not be an overstatement. Merely considering the fact that they were found together in the getaway car 90 minutes after the final robbery ─ a car which contained two identical looking firearms to those used at the robberies, jewellery from the robberies, DNA from the victim of aggravated assault, and clothing from the attempted robbery ─ created multiple, powerful links. Of course, there was also the evidence that Mr. Ratnam rented the getaway vehicle prior to the attempted robbery, and Mr. Atwima conducted internet searches connected to the locations of the crimes.
[78] In the face of the evidentiary record, it was incumbent on the trial judge to address the degree of similarity between the crimes. It was also incumbent on the trial judge to explain how she concluded that the Crown had failed to establish the “constancy of the group” and that there was insufficient linkage evidence.
[79] The trial judge suggested at one point that it would cause “undue complexity” to allow the similar act evidence on a group identity basis to apply across counts, but it is unclear why that would be so. While increasing the complexity of the deliberative process is quite properly something to be weighed in determining whether similar act evidence should be admitted, the jury was already going to have to face this complexity since the trial judge permitted the evidence to apply for purposes of the robbery counts faced by Mr. Johnson and Mr. Atwima.
[80] In the circumstances, it was necessary for the trial judge to explain how she arrived at the result in this similar act application. The failure to have done so constitutes an error of law.
(vii) The Remedy
[81] This leaves the question of remedy. It is easier to understand this section of these reasons by reference to Appendix “A” to these reasons.
[82] There is no dispute that the directed verdicts of acquittal were entered as a result of the similar act rulings. Accordingly, the Crown’s position is that a new trial must be ordered on each count where a directed verdict of acquittal was entered, as well as the two counts where the jury brought back verdicts of not guilty.
[83] The respondents argue that if a new trial is ordered, it should be a retrial of everything, including the convictions. They take this position on the basis that if the trial judge is found to have committed a reversible error on the similar act application, and a new trial is ordered in relation to the counts involving directed verdicts of acquittal, then the error must be equally fatal to the convictions. [3]
[84] Counsel to Mr. Okrah argues that this way of approaching the remedy is a fair one. In his submissions, Mr. Okrah argues that things may have unfolded differently had the similar act ruling gone differently and we cannot unring the bell at this stage, so to speak. For example, the decision not to testify may well have changed had the similar act ruling been different. Accordingly, if the counts involving the acquittals are to be retried, so too should the counts involving the convictions since all the results were tainted by the error.
[85] Respectfully, I see no basis upon which to set aside the convictions in this case. I say this for a few reasons.
[86] First, as for Mr. Atwima, he originally consented to the Crown application and, therefore, to the admission of the similar act evidence across all counts to prove his identity. He later withdrew his consent to admission of the evidence on the attempted robbery count. He ended up with a ruling that excluded the evidence in relation to the attempted robbery. Consequently, the ruling he received was actually more beneficial to him than what he had originally agreed to and precisely in line with his final position at the admissibility voir dire. In these circumstances, I see no basis upon which to set aside his convictions.
[87] Second, as for Mr. Johnson, he consented to the admission of the similar act evidence across the robbery counts. Therefore, he ended up with evidence being used in a way that he consented to. In these circumstances, I see no basis upon which to set aside his convictions.
[88] Finally, as for Mr. Ratnam and Mr. Okrah, the similar act rulings also gave them exactly what they asked for: exclusion of the similar acts against them. In these circumstances, they cannot now claim that their convictions flowed from an inadequate ruling on similar act evidence. To the contrary, the jury did not consider similar act evidence across counts when finding that they committed the crimes they were found guilty of. In my view, the impugned ruling did nothing more than inure to their benefit. In these circumstances, I see no basis upon which to set aside their convictions.
[89] While I accept that in some cases it may be difficult to determine how a trial would have unfolded had rulings been different, in this case such a submission is rooted in speculation. The record in this case undermines the suggestion that the accused may have testified. Early on, counsel to Mr. Okrah, and others, made clear that, regardless of the result of the similar act application ruling, they were, as put by trial counsel to Mr. Okrah, “happy to declare” that the accused would not be testifying or calling any evidence. Accordingly, the similar act rulings and clarifications had no impact on that choice.
[90] One last issue on remedy needs to be briefly addressed. In its factum, the Crown asks this court to order a new trial on all counts “impacted by the erroneous rulings.” At the hearing of the appeal, it became clear that this request was meant to cover both the directed verdicts of acquittal and the acquittals decided upon by the jury.
[91] As reflected at Appendix “A” to these reasons, the jury returned two verdicts of acquittal. They both involved Mr. Ratnam. Those acquittals are not reflected in the Crown’s Notice of Appeal. Accordingly, I would not set them aside.
[92] I would, though, set aside each directed verdict of acquittal and order a new trial on those counts.
(c) The Stay of Proceedings
(i) Overview
[93] The Crown also appeals from the stay entered on the count of failing to stop, the only count on the indictment that Mr. Ratnam faced alone. As previously reviewed, Mr. Ratnam led the police on a dangerous chase. Before his vehicle finally came to rest on the shoulder of Highway 401, Mr. Ratnam sideswiped a police vehicle and a police vehicle struck a civilian vehicle.
[94] For the reasons that follow, I conclude that the trial judge erred in law by finding that the proceedings on this count had to be stayed.
(ii) The Parties’ Positions at Trial
[95] At the end of the Crown’s case, Mr. Ratnam brought an application to stay the fail to stop count. The application was predicated on lost evidence: photos taken by a police officer at the scene where the getaway car came to rest.
[96] During the trial, it emerged that officers from another police service had investigated the circumstances around the chase of the getaway vehicle. At Mr. Ratnam’s request, the trial Crown attempted to obtain photos that appeared to have been taken by an officer of the other police service. The trial Crown was unsuccessful because the phone on which those photos had been taken had been recalled in 2018 and, therefore, the photos no longer existed.
[97] While the photos were no longer available for disclosure, the trial Crown was able to obtain the accident collision report prepared by the officer who took the photos. That report included a diagram clearly depicting where the getaway car had come to rest on Highway 401, and where it sat relative to other vehicles near it. The Crown disclosed that report, as well as the police notes.
[98] Mr. Ratnam argued that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been violated as a result of the lost photos, the absence of which were said to adversely impact his ability to make full answer and defence. He argued that he needed the photos to better understand how the getaway vehicle and others had come to a stop on Highway 401, something that would place the defence in a “much more solid position” to challenge the credibility of the police officers who testified about the pursuit. Mr. Ratnam said that no remedy other than a stay of proceedings would suffice to address the prejudice he experienced as a result of the lost photos.
[99] While the trial Crown was prepared to concede that the lost photos triggered a s. 7 Charter breach, he maintained that no remedy was required because there was no prejudice arising from the breach. Even if the location of the stopped getaway car was somehow relevant to the fail to stop count, the trial Crown maintained that the diagram contained in the accident collision report was more than adequate to meet the needs of the defence. The trial Crown emphasized that, despite having that diagram in hand when the officers testified during the case for the Crown, Mr. Ratnam had chosen not to cross-examine those officers on that diagram. The failure to do so underscored what little relevance the photos would have had in the trial.
(iii) The Ruling Appealed From
[100] While reserving the right to “prepare more … complete reasons for [the] ruling”, the trial judge ruled as follows:
The Crown acknowledges that there has been a breach of Mr. Ratnam’s Section 7 rights. In determining the appropriate remedy, I would have been inclined to provide an alternate or intermediate remedy, rather than a stay of the charge of evade police, however, at this juncture, and in the very particular circumstances of this case, the only available remedy is a stay of proceedings of the charge of evade police, and that is granted.
No subsequent reasons were provided.
(iv) The Proceedings Should Not have been Stayed
[101] Pursuant to s. 24(1) of the Charter, an accused whose s. 7 rights have been breached because of lost evidence is entitled not to a stay of proceedings but to an “appropriate and just” remedy. Therefore, an accused is not automatically entitled to a stay of proceedings, or any remedy for that matter, simply because relevant evidence has been lost. Whether a remedy should be granted and, if so, what that remedy should be, turns on the question of prejudice caused by the breach: see R. v. La, [1997] 2 S.C.R. 680, at paras. 24-25; R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), at paras. 42-43; and R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at paras. 25, 36.
[102] Accordingly, standing on its own, the fact that evidence is missing, evidence that “might or might not affect the defence”, is not sufficient to establish that a remedy is owed and certainly not enough to establish that a stay of proceedings is required: see R. v. Bradford (2001), 52 O.R. (3d) 257, at para. 8.
[103] Indeed, a stay of proceedings is an extraordinary remedy, one that should be granted only in the “clearest of cases”: see R. v. Carosella, [1997] 1 S.C.R. 80, at para. 52; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82; La, at paras. 23-25; R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at para. 44; and Bero, at para. 42. Those circumstances will arise only where the prejudice to the accused’s right to make full answer and defence cannot be remedied through other means, or where prejudice would be caused to the administration of justice should the prosecution continue.
[104] When determining the degree of prejudice caused by the lost evidence, the trial judge must consider all of the other evidence available to the defence to fill the gap: Sheng, at para. 47.
[105] Respectfully, there is no indication in the brief reasons of an attempt to determine what prejudice the lost photos caused to Mr. Ratnam’s full answer and defence. The reasons proceed as if a remedy had to be given, and that while an “alternate or intermediate remedy” may have been appropriate, at that “juncture, and in the very particular circumstances of this case”, the only available remedy was a stay of proceedings. This statement leaves a number of questions, including the most significant question: what was the prejudice arising from the lost photos? It was an error in law to fail to address that question.
[106] In my view, there was no prejudice here and no remedy was owed. I say this for a few reasons.
[107] First, there was nothing in the submissions from the defence that supported the notion of prejudice, other than a bald claim that the photos would put the defence in a “much more solid position”.
[108] Second, the defence had the OPP accident collision report that included a clear diagram of where the getaway vehicle had come to rest relative to the other vehicles on the highway. The officer who drew the diagram was the same officer who took the photos of the scene and he testified at trial. In these circumstances, it is difficult to imagine what more the photos could have contributed to the trier of fact’s understanding about where the vehicles came to rest.
[109] Third, the fail to stop count rested not on where vehicles came to rest, but on the viva voce evidence of multiple witnesses who testified about Mr. Ratnam’s driving maneuvers.
[110] Finally, while the report and diagram had already been disclosed to Mr. Ratnam by the time that multiple officers testified about Mr. Ratnam’s driving maneuvers, counsel did not cross-examine the officers on the content of those documents. The failure to do so highlights the lack of prejudice arising from the lost photos.
[111] The trial judge erred in failing to consider prejudice. No remedy was required. I would set aside the stay of proceedings on the count of fail to stop and remit the matter to a new trial.
IV. CROSS-APPEALS
[112] The respondents combine to advance five grounds of appeal against conviction. They do so in different combinations and permutations.
(a) Severance
[113] Mr. Okrah and Mr. Ratnam argue that the trial judge erred when she refused to grant the respondents severance following the directed verdicts of acquittal. Mr. Okrah in particular submits that because he was acquitted of all counts except those related to the final robbery, he fell vulnerable to being found guilty of that series of offences through improper reasoning involving “guilt by association”. He adds that the trial Crown improperly emphasized those associations in the Crown’s closing address.
[114] I would not give effect to this ground of appeal.
[115] I start by addressing the second point first. Contrary to the submissions made, the trial Crown’s closing did not suggest to the jury that they could convict on the basis of guilt by association. I see no need to review the impugned passages in detail. Suffice to say that they relate to a Crown submission that quite appropriately pointed the jury to the totality of circumstances in which the accused found themselves, caught in the getaway car after the Valdi’s robbery, as circumstantial evidence that they were among the men involved in that robbery. The absence of any objection to the Crown’s closing on this point underscores the lack of impropriety.
[116] As for the trial judge’s refusal to grant the severance application, her reasons are solid and legally supported.
[117] Applications to sever the trial of accused under s. 591(3)(b) of the Criminal Code, R.S.C., 1985, c. C-46, like applications to sever counts under s. 591(3)(a), call for the exercise of discretion. Severance will be granted only where the “interests of justice” so require: R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 10. In this context, the interests of justice strive to balance the accused’s right to be tried on the evidence admissible against that accused, while at the same time preserving the societal interest in seeing justice done in a “reasonably efficient and cost-effective manner”: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16.
[118] Given the absence of statutory guidelines for granting severance, deference must be afforded to the trial judge’s ruling. Therefore, as long as the trial judge acts “judicially and the ruling does not result in an injustice”, deference is owed: Last, at paras. 14, 21.
[119] The trial judge accurately summarized the severance applications. She rejected the suggestion that jury instructions would be insufficient to enable the jury to conduct its task correctly without engaging in improper propensity reasoning. Instead, she found that carefully crafted and clear instructions on prohibited propensity reasoning would suffice. She in fact gave that instruction and no objection was raised as to its content. In my view, the decision to deny severance in this case is owed deference because it was judicially made and did not result in an injustice.
(b) Failure to Instruct on Party Liability
[120] Mr. Okrah, joined by Mr. Ratnam, objects to the jury charge as it relates to aiding and abetting.
[121] Having considered the instructions on aiding and abetting, it is not clear to me what the alleged deficiencies relate to. The instructions were vetted with the respondents during the pre-charge conference. No objections were taken to the main charge nor to the re-charge. Nor were any concerns expressed after the charge was delivered.
[122] Mr. Okrah acknowledges that the charge covered the point that mere presence at the place of the crime is insufficient to make out guilt. However, he argues that the charge was deficient in that it failed to make clear what findings were permissible from Mr. Okrah’s presence in the getaway car with the other accused. Again, I will not set out a rather lengthy passage from the charge on this point. Suffice to say that the jury was clearly told that “just being there does not make a person guilty.”
[123] To the extent that there is an objection for the first time on appeal about the instruction involving common purpose, I would also note that the jury received a clear instruction in accordance with the specimen charge available. The instruction was also approved of by all counsel. I will not go through the charge in detail.
[124] In my view, the path to findings of guilt for Mr. Okrah and Mr. Ratnam was through legally correct jury instructions.
(c) Failure to Give a Copy of the Charge to the Jury
[125] All of the respondents argue that a written copy of the charge should have been provided to the jury. While they recognize that it is not mandatory to do so, they argue that it should be done in cases where there are multiple co-accused that are differently situated.
[126] Whether to provide a written copy of the charge to the jury is a matter of discretion for the trial judge. In some cases, it may well be helpful to the jury to have a copy of the charge while deliberating. At the same time, no adverse inference can be drawn that a jury did not understand the instructions simply because they did not have a copy during the actual deliberative process.
[127] In this case, the trial judge decided not to provide a copy to the jury. She was not asked to provide one and, importantly, no one suggested, as they now suggest on appeal, that providing a copy was essential for the jury to properly deliberate. I would not give effect to this ground of appeal.
(d) Unreasonable Verdict
[128] Mr. Okrah alone says that the evidence at trial could not reasonably support his convictions in relation to the Valdi’s robbery. I will deal with this ground of appeal briefly.
[129] To succeed on his unreasonable verdict claim under s. 686(1)(a)(i) of the Criminal Code, Mr. Okrah must establish that no properly instructed jury, acting judicially, could reasonably have found him guilty: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. So, could a properly instructed jury, acting judicially, reasonably find him guilty? In my view, the answer is clearly yes.
[130] Mr. Okrah was arrested while seated in the getaway car about 90 minutes after the Valdi’s robbery, along with his three co-accused. The car contained jewellery taken from that robbery and weapons consistent with those used at that robbery, as well as the hammer with white tape and the backpack used to store the jewellery.
[131] This was not an unreasonable verdict.
(e) Failure to Find a Charter Breach Arising from the Warrantless Pings of Mr. Ratnam’s Phone
[132] All the respondents raise this fifth and final ground of appeal. They challenge the trial judge’s finding that the warrantless pings of Mr. Ratnam’s phone did not give rise to a Charter breach.
[133] As previously noted, to find the getaway car, the police “pinged” Mr. Ratnam’s cellular phone. In the normal course the police require prior judicial authorization to track a cell phone, but exigent circumstances can justify doing so without that prior authorization.
[134] At the time of the offences forming the subject matter of this appeal, the police were already investigating Mr. Ratnam for other jewellery store robberies that had been committed a few weeks prior. Therefore, once the Galbraith and Valdi’s robberies were committed and the getaway car was identified, police were able to identify Mr. Ratnam as the renter of that vehicle. The police decided that it was necessary to immediately locate Mr. Ratnam in an effort to prevent another violent armed robbery.
[135] Ultimately, Mr. Ratnam’s phone was pinged three times, after which the getaway car was located.
[136] Mr. Ratnam brought a ss. 8 and 9 Charter application, claiming that the warrantless pings breached his right to privacy and that this in turn led to his arbitrary and unlawful detention. The other accused joined the application on the basis that their detentions resulted from the breach of Mr. Ratnam’s s. 8 rights.
[137] The trial judge found no breach of Mr. Ratnam’s s. 8 rights, concluding that it was entirely reasonable for the police to believe that another robbery was imminent and, therefore, to exercise their powers in urgent circumstances. The respondents challenge this finding on appeal.
[138] In my view, there is no basis upon which to interfere with the trial judge’s finding on the s. 8 issue or the careful reasons that underpin it. It is therefore unnecessary to address the issue of standing.
[139] Where exigent circumstances exist, the police can use a cellular telephone ping to locate a suspect: see, for e.g., R. v. Bakal, 2021 ONCA 584, at paras. 24-25. These circumstances will arise where there is an imminent threat to the police or public safety, or the risk of the imminent loss or destruction of evidence: see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 32-33; Bakal, at para. 19.
[140] This record is built on exigent circumstances. There had been two very recent, violent robberies committed close to one another. The suspects were armed. They had demonstrated their penchant for terrorizing their victims by threatening them with guns. At the most recent robbery, they had demonstrated their willingness to seriously harm a victim, leaving him bleeding profusely from the head. The violence was escalating from crime-to-crime. The police had to act.
[141] While there was some discrepancy in the police evidence as to exactly when the decision was made to ping the phone, the trial judge was alive to that discrepancy and reviewed it in her ruling. Despite expressing some concern over those inconsistencies, the trial judge noted the practical fact that the decision was made in a fluid and dangerous situation. In the end, she found that the discrepancies, to the extent they existed, did not undermine the police evidence on this point. It was open to the trial judge to come to that decision. It was a reasonable one.
V. CONCLUSION
[142] The Crown appeal is granted. The cross-appeals are dismissed.
[143] All directed verdicts of acquittal are set aside. The stay of proceedings is set aside. A new trial is ordered on those counts.
Released: “April 1, 2022 JMF”
“Fairburn A.C.J.O.”
“I agree B.W. Miller J.A.”
“I agree. George J.A.”
APPENDIX “A”: ALL COUNTS AND VERDICTS
Graziella’s Fine Jewellery (March 13, 2017)
Attempt robbery (s. 463(a) of the Criminal Code)
- Mr. Atwima: Directed verdict
- Mr. Johnson: Directed verdict
- Mr. Okrah: Directed verdict
- Mr. Ratnam: Directed verdict
Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code)
- Mr. Atwima: Directed verdict
- Mr. Johnson: Directed verdict
- Mr. Okrah: Directed verdict
- Mr. Ratnam: Directed verdict
Ron Galbraith Jewellers (March 14, 2017)
Robbery using restricted or prohibited firearm (s. 344(1)(a) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Directed verdict
- Mr. Ratnam: Guilty
Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Directed verdict
- Mr. Ratnam: Guilty
Use of imitation firearm while committing the indictable offence of robbery (s. 85(2)(a) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Directed verdict
- Mr. Ratnam: Not guilty
Valdi’s Jewellery Shop (March 14, 2017)
Robbery using restricted or prohibited firearm (s. 344(1)(a) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Guilty
- Mr. Ratnam: Guilty
Aggravated assault (s. 268 of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Guilty
- Mr. Ratnam: Not guilty
Disguise with intent to commit indictable offence (s. 351(2) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Guilty
- Mr. Ratnam: Guilty
Use of imitation firearm while committing the indictable offence of robbery (s. 85(2)(a) of the Criminal Code)
- Mr. Atwima: Guilty
- Mr. Johnson: Guilty
- Mr. Okrah: Guilty
- Mr. Ratnam: Guilty
Driving incident following Valdi’s Jewellery Shop (March 14, 2017)
Fail to stop (s. 249.1(1) of the Criminal Code)
- Mr. Ratnam: Stayed
[1] I say “for reasons not entirely clear on the record” because, despite the trial Crown’s concession at trial on this point, the record reveals a good deal of evidence also linking Mr. Okrah to, by way of example and, at a minimum, the Galbraith robbery. After all, when caught in the getaway vehicle, Mr. Okrah (and his compatriots) were surrounded by a plethora of evidence from both robberies.
[2] Following the trial judge’s initial ruling discussed below, Mr. Atwima changed his position to align with that of Mr. Johnson.
[3] During oral submissions at the hearing of the appeal, Crown counsel was asked whether the Crown agreed with the respondents that, if a new trial were to be ordered on the similar act evidence issue, all verdicts, including the convictions, should be set aside and all counts (except the fail to stop count that was stayed), returned for retrial. The Crown agreed with that position. Shortly after the hearing of the appeal, the court communicated with counsel, asking for reattendance to assist the court with understanding why, if the Crown appeal succeeded, the convictions should also be set aside. Crown counsel then withdrew the earlier position, taken during oral submissions, asking only that the acquittals be set aside and a retrial ordered on those counts. All counsel were provided with a full opportunity to respond.
