Court File and Parties

Court File No.: 10-3109, Halton

Date: 2012-02-17

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Colin Lemoyre

Before: Justice Stephen D. Brown

Heard on: September 7, 8, and November 22, 2011

Further written submission received: December 15, 2011

Reasons for Judgment released: February 17, 2012

Counsel:

Emily Pecorella, for the Crown

Deniz Sarikaya, for the accused Colin Lemoyre

S.D. Brown, J.:

1.0: Issues Before the Court

[1] Mr. Lemoyre is charged with the attempted robbery of Kristina Natale of OxyContin tablets contrary to section 344(b) of the Criminal Code. The date of the alleged offence is October 1, 2010. He elected trial before me.

[2] The issues before the court are twofold. One, should the Crown be permitted to amend the information to substitute "employees of Shoppers Drug Mart" as the named victim in the information from the presently named Kristina Natale; and two, do the acts of the defendant go beyond "mere preparation" and reach the level of attempted robbery.

2.0: The Evidence at Trial

2.1 Evidence of Kristina Natale

[3] Kristina Natale is a young woman that was employed as a part time cosmetician at the Shoppers Drug Mart on Kerr Street in Oakville on October 1, 2010. She had worked there for three years prior to this incident.

[4] She was working a five hour shift and sometime after the commencement of her shift, she left the store to get change so that she could buy a bottle of water. When she was re-entering the store, she observed a male standing against the front wall of the store smoking a cigarette. He was wearing a brown hooded jacket with the hood up, carrying a shopping bag and was approximately 24 years of age. He was talking on a cell phone.

[5] She went back into the store and took her position at the cosmetic booth located at the front of the store by the entrance. Shortly afterwards the male entered the store alone and passed close by her and then went down the cosmetics aisle which was called aisle two. He stopped in front of the razor blade section and remained there for quite a while. She greeted him when he entered the store but he did not acknowledge her.

[6] Ms. Natale was suspicious of this male because he looked similar to the description of suspects of thefts from the drug store on previous occasions that wore baggy hooded sweatshirts or jackets with the hood covering their heads.

[7] As he remained looking at the razor blade display located about 10 meters away from her, she saw him tilting his head as if to look at her and although she couldn't see his eyes because of the hood she believed that he did this on more than one occasion. He remained at that location for about 5 to 10 minutes. She had observed that he had long sleeves and that the sleeves concealed his hands. At one point, she observed what she thought was a crumpled piece of paper sticking out of one of the sleeves. She continued to observe him to ensure that he didn't put anything into the bag that he had in his other hand.

[8] She then thought that she would try to get a security call made to spook him and attempted to get the attention of the cashier at the front of the store by waving her arms at her. The cashier did not see her so after about two minutes of trying to get her attention, she asked another customer to go and get the supervisor who was in the pharmacy area located at the back of the store. She asked the customer to walk over to pharmacy and ask for Stephanie who was the acting supervisor on the shift that evening.

[9] Just after this, the cashier at the front came over to the cosmetics area to return a cart and Ms. Natale asked her to do a page asking for security to aisle two.

[10] The cashier returned to her station and did the page not long afterwards, which was audible to everyone in the store.

[11] By this time, Mr. Lemoyre had left aisle two and was going to different aisles and Ms. Natale was following him, observing him from the opposite end of the aisles. She would lose sight of him for brief periods and then see him again as he passed the end of another aisle. Ultimately, he came up aisle number five and at this point there was another individual who was about two feet in front of the defendant, walking towards her as well.

[12] The person in front of Mr. Lemoyre was a male wearing a black sweater, a black hat, and track pants, and she recognized this male as being the same one that had earlier walked past the defendant in aisle two while he was standing there, and she thought that she heard him say hello to the defendant. That male was also observed by her to be walking back and forth in front of the pharmacy area that is located at the back of the store, as well as up and down many of the aisles of the store.

[13] As they both walked towards her in aisle five, she did not see them having any interaction and the male with the black sweater was in front of the defendant.

[14] When she was about three feet away from the male in the black hooded sweater, she heard the security page that she had earlier requested. At this time, she heard the male in the black sweater say, "Are you fucking kidding me" as if into the air and then he walked towards her and read her name tag out loud and made some sort of noise.

[15] At this time, she had observed the defendant who had walked past her by about four feet during this interaction and saw that he had something that resembled a knife blade sticking out of his sleeve of the opposite hand that he had the bag in. She estimates that she observed this during a quick three-second glance.

[16] At the time that she saw this, he was between aisles three and four near the front of the store. He was close to the cosmetic booth at the front of the store where she normally stood. She can't remember if he was moving or standing.

[17] She panicked because of this and the previous interaction with the other male and ran down aisle seven in the opposite direction and told one of the young merchandisers named Victoria about this. As she and Victoria were walking out of aisle seven, she saw Stephanie Sebastiani, the supervisor, and told her that she had seen someone in the store with a knife.

[18] The supervisor directed them to attend at the lockup room behind the post office at the back of the store and she stayed there with other employees until the police had arrived.

[19] Just before the police confronted him, she peeked out of the room and saw him standing in front of the pharmacy area that is at the back of the store by the post office. At this time, the police directed her to go back into the lockup room.

[20] She was asked to identify him by a police officer while the defendant was on the floor in front of the pharmacy with a gun trained on him.

[21] Ms. Natale suffers from severe anxiety and was understandably quite upset and traumatized by this event. She was understandably quite visibly upset when interviewed by the police after the event and had a difficult time giving her evidence at this trial at times.

[22] During her evidence, she identified several surveillance photographs of the defendant, which shows the reusable shopping bag in his hand, but no knife blade is visible in any of the surveillance video.

[23] In cross-examination, she could not recall if the male in the black sweater that she observed was talking on a cell phone while he was in the store but she did admit that he may have been and that he may have been saying hello into his cell phone, rather than directed at the defendant. The same possibility existed that he made the utterance that he did after he heard the security page into his cell phone. She acknowledged never seeing that individual after that time.

[24] When defence counsel played the surveillance video, she confirmed that the male in the black sweater is seen entering the store before the accused and is talking on a cell phone at the time. Indeed, during most of the video surveillance captured of this gentleman, he appears to be talking on a cell phone as he is wandering about the store. She also confirms that Mr. Lemoyre is seen on the video at 6:53 p.m. opening a piece of paper and looking at it.

[25] Surveillance cameras of the defendant at the time that Ms. Natale was observing him did not record anything resembling a knife in his hand.

2.2 Evidence of Carla Martins

[26] Ms. Martins is 21 and at the time of these events she worked for Shoppers Drug Mart as a postal clerk. When the post office wasn't busy, she would help put orders away in the pharmacy that is located next to the post office in the back of the store.

[27] She had gone over to assist Stephanie Sebastiani that night in the pharmacy and at that time, they heard a security page to cosmetics. She thought that she saw a male with a hoodie up over his head, when she looked up, who was standing in aisle four. He was about 8 to 11 feet away from her and he was just standing there.

[28] Her supervisor, Stephanie, went up to cosmetics and she saw her come back and speak to the owner and then go to the post office to make a call.

[29] The next thing that she noticed was the same hooded male standing at the back corner of the store staring at the items in the travel section shelf. That section was in front of the pharmacy section but to the left of it. She estimated that he was there for about 10 to 15 minutes.

[30] After this time, Stephanie told her to get into the vault in the post office area and she went in there with Kristina, Stephanie and Victoria.

[31] On cross-examination, the security video was played for her and it became obvious that the accused had not remained in the vicinity of the pharmacy for the whole period of time but had, at different times, ventured up and down different aisles to other areas of the store.

2.3 Evidence of Stephanie Sebastiani

[32] Ms. Sebastiani was age 24 at the time of this event. She was called in that evening to assist at the pharmacy.

[33] While working in the pharmacy, she recalls hearing a security page to cosmetics so she answered the page by proceeding toward the cosmetics counter at the front of the store. While she was walking there, she saw Kristina walking towards the front of the store and followed her.

[34] When she reached Kristina, she saw her point to the male in the brown hoodie who was, at the time, in aisle eight facing the pop coolers with his back towards her. Kristina had told her that he had a knife, although Ms. Sebastiani could not see his hands at that time. She observed him for under a minute and then went to the back of the store and found the owner and told him and the owner told her to call the police.

[35] She went to the post office area at the back of the store and called 911 and reported the incident to the police. She says that at the time that she was placing the call, she saw someone who was wearing a brown hoodie outside the front of the store and informed the dispatcher that she had seen this and shortly after this, she saw him back in the store.

[36] When she next saw him, he was at the back of the store in the pharmacy area. He seemed to be looking at the drugs in front of the pharmacy. She wasn't sure whether there were any customers at the pharmacy at the time.

[37] At another time, she looked around the store for him to try to see him and give the dispatcher a description of him. She observed that he had a shopping bag in his hands but didn't observe anything else.

[38] After this, she went into the back room with the other employees and stayed there until the police arrived and spoke to them.

[39] In cross-examination, she admitted that she had never seen the face of the person in the brown hoodie and that she never saw a knife in his hand.

[40] Mr. Sarikaya suggested to her that the male entered the store at 6:46 p.m. and was taken out of the store by the police at 7:07 p.m. He suggested that in the intervening period, the accused had never left the store. Ms. Sebastiani agreed that it was possible that the person that she saw outside the store with a brown hooded jacket was a different person from the accused.

[41] The video surveillance tapes were played for the witness that showed that during these periods, he is not seen leaving the store. She suggested that he may have left through the entrance door rather than the exit door but agreed that there is no handle on the inside of the entrance door and one would have to grab the seal with their fingernails and pull the door open to get out of that door if it were closed. There is then a small vestibule and then another exit door and she wasn't sure whether that one had a handle on the inside or not.

[42] Other video was played for Ms. Sebastiani and it showed that at various time the accused was seen in different aisles of the store and wasn't always at the back of the store. As well, he was always seen to be alone and not with anyone else.

2.4 Evidence of Allen Bonner

[43] Constable Bonner is a senior constable with the Halton Regional Police and has been employed with them for 24 years.

[44] He was the first officer to respond on the scene and gave his evidence in a clear, ordered and precise manner.

[45] He stated that he received a radio call at 7:01 p.m. and upon arrival at the store, his task was to first clear all civilians out of the store because of the report that there was a man in the store armed with a knife.

[46] He cleared as many individuals out of the store as he could and when he was at the back near the pharmacy, there was one male remaining and he was trying to get his attention to tell him to leave the store when the accused, who was standing at the end of an aisle in the back middle of the store, looked over and made eye contact with Constable Bonner.

[47] Constable Bonner who had his firearm drawn, then commanded the accused to drop his bag and get on the ground. He stated that the accused didn't seem to recognize that he was a police officer and failed to obey the first command. He was told to do this again and the accused complied.

[48] After his arrest, Constable Bonner conducted a thorough search of the area for about 20 minutes looking behind and below shelving where the accused had been standing. After this thorough examination, Constable Bonner directed another officer to search the area again and that was done, however, no weapon was ever found.

[49] Constable Bonner's actions are seen on the surveillance tape and he is to be commended for the calm, professional, and measured approach that he took in this very volatile situation.

2.5 Evidence of Tim Woolands

[50] Constable Woolands has been employed with Halton Regional Police since 2002.

[51] At 6:59 p.m. on October 1, 2010, he responded to a 911 call to the Shoppers Drug Mart. He arrived at 7:07 p.m. and observed other officers present. He saw the accused on the floor at the back of the drugstore by the pharmacy. Shortly after being apprised of the situation, he arrested the accused for robbery and handcuffed him.

[52] When advised why he was under arrest, he appeared to understand and Constable Woolands then conducted a search of the accused. He retrieved a cob of corn from the pocket of his sweatshirt and removed a note from the front pocket of his hooded sweatshirt.

[53] The note was folded in half and was written in red crayon and stated:

I have a loaded gun in my pocket

you are being robbed For all your 80 mg OxyContin i don't want

to hurt

any one but if you don't cooperate

You leave me no choice

do not lock the doors down just let me go and I will spare you

[54] He hadn't read the note initially because his search was primarily for weapons, but later on he read the note at the station and realized its significance. It was folded in half as it appears in Exhibit 5 filed at this trial. He believes he checked the accused's bag that he was carrying, at some point, but believes that it was empty.

[55] In cross-examination, it was suggested that he also found the accused's wallet on him during a search, together with other items such as receipts and other pieces of paper that he had on him, but Constable Woolands cannot remember if he did because, at the time, other pieces of paper would have had no significance to him. He confirms that he did not find a red crayon on the accused during his search.

2.6 Evidence of Clayton Gillis

[56] Clayton Gillis has been a constable with the Halton Regional Police Service since 2002 and has been a detective constable with the Criminal Investigations Bureau since 2008.

[57] He had not attended the scene that evening but had heard the radio transmissions and was briefed by Constable Woolands and shown the note written in red crayon found on the accused. He was assigned to interview Mr. Lemoyre and did so on October 1, 2010 from 9:41 p.m. to 10:14 p.m. The unsworn statement was recorded on videotape and was done after Mr. Lemoyre had consulted with duty counsel.

[58] He stated that Mr. Lemoyre appeared dishevelled and unkempt. His mannerisms were slow and in the opinion of Constable Gillis were indicative of someone who may have been under the influence of alcohol or a drug. Mr. Lemoyre apparently made an admission to Constable Gillis that he had used his prescription drugs earlier that day but denied taking any other drugs.

[59] Notwithstanding this, counsel for Mr. Lemoyre did not object to the inclusion of the statement as part of the Crown's case, unless it was introduced only for use in cross-examination, should Mr. Lemoyre testify.

[60] The Crown put this statement in as part of its case so both the inculpatory and the exculpatory parts of the statement must be considered in the overall assessment of the issues.

[61] The Crown then closed its case and the defence elected to call no evidence.

2.7 The Statement of Colin Lemoyre

[62] Mr. Lemoyre's statement commenced at 9:41 p.m. It is important to note that when Constable Gillis interviewed the accused, he did not have the opportunity to view the DVD's from the surveillance at the Shoppers Drug Mart that covered the incident.

[63] He was also, it appears, under the impression that the male who was seen in the store with the black hat and sweater may have been an accomplice of the accused and possibly the same male that was videotaped passing a similar hold up note to a pharmacist at another nearby Shoppers Drug Mart store earlier that day.

[64] Constable Gillis also had information that Mr. Lemoyre was seen with a knife and of course had a copy of the holdup note with him in the interview.

[65] Mr. Lemoyre was adamant that he never had a weapon on him at any time during the incident. He did admit to authoring the holdup note but he wasn't questioned as to when or where that was done.

[66] He was shown a picture of the surveillance from the other Shopper's store robbery that day and was asked if he recognized the male in those pictures and he replied that he looked like the male in the black sweater and hat that was in the store that evening at the same time that the accused was. He said that he had seen him walking around the store and a couple of times they glanced at each other.

[67] He was surprised when he was told that the picture was of a male that robbed another pharmacy earlier that day using a similar note and conceded that this did not look good and would send up red flags for the police. Yet he always maintained that he didn't know the individual and had no interaction with him that day or any other. The Crown conceded that it could not prove a link between the two incidents.

[68] Mr. Lemoyre admitted in the video that he had a drug problem. He stated that he had broken his back on two occasions; once in a car accident in 2007 when he was 17 and again in a fall from a ladder in 2008. He admitted that he had been taking OxyContin for pain management since 2008 and had a prescription for it. He said that his prescription was for 20 mgs, three times per day. He was also prescribed Percocet.

[69] Constable Gillis then broached the incident in the store and asked the following question:

Q. Okay so how do we get to the point where you go into a drugstore and plan or attempt to rob them of all the 80 milligram OxyContin that they have. Like if you were to legitimately get prescriptions it's not working for you, you want stronger stuff or you selling it or?

A. I was angry and intoxicated at the time.

Q. You were – what were you angry about?

A. Just my entire life.

Q. Why are you angry about your life? Because of those incidents you had or more than – deeper stuff like that? Like family issues, relationship issues?

A. Yeah that and I guess everything that's been going on in my life.

(Transcript of the video interview page 11)

[70] Mr. Lemoyre then went on to explain that at that time he was basically homeless. He would stay at his father's home on some occasions but couldn't live there permanently because the Children's Aid Society did not approve of him living with his 14-year-old sister who lived at his father's.

[71] As a result of this, he had been staying in shelters and at other locations, sometimes sleeping outside. He was unemployed and only possesses a grade 11 education.

[72] He stated that the previous evening to his arrest he had slept at his father's house although he wasn't supposed to.

[73] He awoke at around 9:00 a.m. and, during the course of the day, he took his three prescription pills of OxyContin - one at 9:00 a.m., one at 1:00 p.m. and one at about 6:00 p.m. He left his father's house around noon and spent most of the day just walking around town alone.

[74] When Constable Gillis then asked him what his intention was in going into the Shoppers Drug Mart that day, he replied:

Not to do anything really. It was just more, just in my mind…I wasn't gonna, like I wasn't really gonna do nothing.

[75] Constable Gillis then confirmed that the note was written by the accused. When it was read to him and shown to him, the following exchange takes place on page 22 of Exhibit 6B:

Q. Do you think that's a little bit of a reason for us to be concerned?

A. Yeah.

Q. So when you say you didn't have any intentions of actually doing anything. Why would you walk into Shoppers Drug Mart dressed the way you were with that knife in your pocket with no intentions of doing anything?

A. In the back of my mind it was in my mind but I, like I couldn't do it.

Q. So at some point you intended to do it but when you went into the store you kinda chickened out or got scared off?

A. Yeah I thought about it. I just felt for the people for the working there how they would feel.

Q. So, you mentioned that you were using 20 milligrams of Oxy you're asking in this note for 80 milligram Oxy so what was your intention of – if you were to go through with this and succeed like were you planning on consuming these or selling them or what?

A. Consuming them.

[76] Throughout the interview, he adamantly denied having any weapons on him during this incident despite being pressed on this by the officer.

[77] At page 30 of Exhibit 6B, the transcript of the interview, the following exchange takes place between Officer Gillis and the accused:

Q. And you're adamant that there was no weapon involved in this whole incident? Do you remember carrying a weapon?

A. No I never had any weapon whatsoever on me.

Q. Cause once again like I, I, I would be better prepared if I had seen the video before I came to speak to you but time is just not – timing has worked out because we didn't have the video yet and I didn't wanna, wait around before I spoke to you. But when the video comes if, if what they're alleging is – I mean it makes things a lot more, serious nature if you're walking around with a weapon right?

A. Which I was not.

Q. OK well like I said I wasn't there but there was at least one person who claimed that they had seen you with a knife in your hand while you were wandered the aisles at Shoppers Drug Mart.

A. No I had no knife whatsoever.

3.0: Positions of the Parties Regarding Application to Amend the Information

3.1 Position of the Crown

[78] At the conclusion of oral submissions by the Crown on November 22, 2011, I questioned Ms. Pecorella about the wording of the information that alleges that the accused did attempt to rob Kristina Natale of OxyContin tablets contrary to section 344(b) of the Criminal Code.

[79] In other words, since the Crown chose to particularize that victim in the information, if I find that Mr. Lemoyre did not have an intention to rob Ms. Natale, but may have had an intention to rob the pharmacy clerk of the drugs, should the Crown's case fail?

[80] Ms. Pecorella then responded with an application to amend the information pursuant to section 601(2) of the Criminal Code that was vigorously opposed by Mr. Sarikaya for the accused. Since it was at the end of the day, the parties agreed to provide me with further written submissions on this issue.

[81] The Crown seeks to amend the information to insert the words "a pharmacy employee of Shoppers Drug Mart" instead of the named victim Kristina Natale.

[82] The Crown's position is that pursuant to section 601(4), the powers to amend an information are broad and can occur at any stage of the proceedings. The Crown argues that the test is whether the amendment can be made without causing irreparable prejudice to the accused.

[83] The Crown submits that it was clear from the start of the trial that the Crown's theory was that the defendant attempted to rob the pharmacy at the Shoppers Drug Mart of OxyContin.

[84] They state that the initial synopsis provided to Mr. Lemoyre in disclosure does not even mention the name Kristina Natale. That may be true but Mr. Lemoyre would have had the information read to him at his first court appearance which does include her name.

[85] The Crown submits that the victim's name is not an essential element of the offence and that the gravamen of the offence is to attempt to rob any person in the store of OxyContin tablets.

[86] The Crown further submits that the cross-examination of the witnesses was full and complete and that there is nothing in the questions to suggest that the defence was misled about the victim or the theory of the Crown's case.

[87] The Crown argues that the defence, before submissions, gave to the Crown a copy of R. v. Gordon, 2009 ONCA 170 that deals with whether the doctrine of transferred intent applies to inchoate crimes such as attempted robbery and therefore the Crown has failed to prove the case beyond a reasonable doubt because there was no evidence that the accused attempted to rob Ms. Natale.

[88] The Crown argues that it is therefore clear that the defence counsel turned his mind to how the information was laid, versus the evidence that was called at trial. In other words, counsel was aware that although the named complainant in the information was Ms. Natale, the Crown's evidence was focused upon an attempted robbery of the pharmacy. The Crown then argues that the defence therefore could not have been prejudiced in its ability to respond to the Crown's case, either through cross-examination or in deciding whether to call evidence.

[89] With respect to the timing of the amendment being after the close of the Crown's case and after the accused has elected to not testify and close his case, the Crown submits that any prejudice that may have been caused to the accused can be remedied by an adjournment, and a recalling of witnesses for further cross-examination.

3.2 Position of the Defence

[90] Mr. Sarikaya points out the accused elected trial in the Ontario Court of Justice and the trial commenced on September 7, 2011 and then the taking of evidence was concluded on September 8, 2011. The defence elected to call no evidence and the matter went over to November 22, 2011.

[91] The defence points out that this is an amendment that was not sought by the Crown at the close of its case, at the close of the case for the defence, and not until I had mentioned the issue after the completion of the Crown's final submissions.

[92] Mr. Sarikaya argues that his client will have been misled and prejudiced by any amendment to the information at this late stage. He further asserts that having regard to the test in section 601(4)(e) and considering the merits of the case, and the evidence adduced at trial that there would be injustice to the accused if the charge were amended.

[93] Mr. Sarikaya submits that the cross-examining of all the police officers in the case was designed to address the issue of the attempted robbery of Kristina Natale and not a pharmacy employee at Shoppers Drug Mart.

[94] As well, he states that neither Ms. Sebastiani nor Ms. Martins, who took turns working in the Pharmacy, were cross-examined about their observations of Mr. Lemoyre in relation to their interaction with Ms. Natale and about their observations of Mr. Lemoyre.

[95] The defence submits that the timing of the application is a factor to be considered in assessing the prejudice to the defendant. Both the defence and the Crown had closed their cases on September 8, 2011 and it was some two and one-half months later, on November 22, 2011, that the Crown first mentioned anything about the particularizing of the victim as being Ms. Natale in the information, and then only after the subject was raised by the court after the Crown had concluded its submissions.

[96] The defence submits that section 601(5) directs the court to consider an adjournment where an amendment to the information is being sought. However Mr. Sarikaya submits that an adjournment would not remedy the prejudice caused by allowing an amendment. He suggests that all witnesses would have to be recalled to testify again and that would defeat the second public policy purpose of the power of amendment to avoid a multiplicity of proceedings. He points out that Ms. Natale was not a willing witness during the trial and that the witnesses would view having to be called back as being caused by the defendant.

[97] Finally, Mr. Sarikaya argues on behalf of the defendant that denying the amendment to the information would not result in an unwarranted windfall for the accused. He submits that the defendant is not clearly culpable of an offence and points out many of the weaknesses in the Crown's case.

[98] He points out that neither Ms. Martins nor Ms. Sebastiani, who were both working in the pharmacy that night, noted suspicious behaviour on the part of the accused.

[99] He points out that the note that was found on Mr. Lemoyre does not, he suggests, appear to match the crumpled piece of paper that Ms. Natale saw him looking at once in the store, in that the note entered as an exhibit is folded in half.

[100] He also points to excerpts in Mr. Lemoyre's statement that indicate that he didn't wish to do anything when he was in the store.

4.0: Analysis

[101] Section 601 of the Criminal Code permits an amendment to a count in an information at trial. The section states:

601. (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect.

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and

(a) a count in the indictment as preferred; or

(b) a count in the indictment

i) as amended, or

ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

(b) that the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negatived,

(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

(c) that the indictment or a count thereof is in any way defective in form.

[102] Section 601(4) and (5) requires that the court consider certain factors when deciding whether or not to permit the amendment. That subsection reads:

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry;

(b) the evidence taken on the trial, if any;

(c) the circumstances of the case;

(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.

[103] In allowing an amendment of an indictment at appeal, Doherty, J.A. stated in R. v. Irwin this of the power of amendment pursuant to section 601(2):

25 On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused?

26 I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another. As long as prejudice to the accused remains the litmus test against which all proposed amendments are judged, it seems unnecessary to characterize the effect of the amendment on the charge itself. If the accused is prejudiced, the amendment cannot be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described?

[104] Mr. Justice Doherty discussed the policy consideration in allowing trial judges a broad power of amendment. He states at paragraph 32 that policy considerations apply to the amendment power:

32 In holding that the amendment power, even on appeal, can extend to the substitution of a different substantive offence, I must acknowledge the policy implication of that holding. As Laskin C.J.C. so clearly put it in Elliot, supra, at p. 199, it is the responsibility of the Crown and not the court to settle the charge which will be brought against the accused. While I accept the force of that observation, I am moved by a different policy consideration. If there is no power to make the amendment, even in the total absence of prejudice, there can be no impediment to a new prosecution on the substituted charge. That prosecution would involve a re-litigation of exactly the same issues on presumably exactly the same evidence. I see no value from the point of view of the due administration of justice in a second trial in those circumstances. Witnesses would be inconvenienced and resources spent for no purpose other than to give an accused a second chance to litigate issues which had been fully canvassed at the first trial. I go even a step further. I think the possibility of a different assessment of the same issues and the same evidence on a second trial does a disservice to the due administration of justice. In my view, denying the power to amend to substitute a new charge where the substitution could not prejudice the accused would be akin to ordering a new trial where there had been an error in law at trial which could not have caused any prejudice to the accused. In both situations, the result strikes me as an unwarranted windfall for an accused.

33 My conclusion as to the scope of the amending power addresses only the first of two issues which an appellate court must face in deciding whether to make an amendment. Having found that the power exists, the court must go on and determine whether it should be exercised in a given case. The amending power can be exercised only if the accused will not be "misled or prejudiced in his defence or appeal." The nature of the proposed amendment and the stage of the proceedings at which it is sought will be important factors in determining whether an accused has been misled or prejudiced. The risk of prejudice is particularly great where it is proposed to materially amend an indictment on appeal and affirm the conviction on the basis of that amendment. As Cory J. said in R. v. Tremblay:

It is, I think, an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended. ...

34 Therefore, while I am satisfied that this court has the power to make the amendment requested by the Crown, the nature and timing of the proposed amendment demand a cautious approach and a thorough consideration of the potential prejudice to the accused flowing from the amendment.

[105] The evidence in this case clearly from the outset alleged an attempted robbery of a pharmacy employee of OxyContin. The holdup note that was found on the accused's person demanded that this prescription drug be given to him or there would be dire results.

[106] It seemed apparent to me, especially when the holdup note was introduced into evidence, that the theory of the Crown was that the accused intended to rob someone at the Shoppers Drug Mart, on that date and time and location, of OxyContin drugs by threats of violence.

[107] The evidence of Ms. Natale indicates that she initially seemed to suspect the accused because of his "suspicious" actions and his hoodie that fit the description of other suspects that employees had been told about.

[108] She never once stated in her evidence that she thought that he was there to rob the pharmacy. Indeed, she kept observations of him after he went into aisle two and was looking at the razor blade section because I find that she was suspicious that he was a potential shoplifter.

[109] It was when she saw what she thought was a knife blade showing from his sleeve that she ran and related that to her supervisor. I am not convinced on the evidence that she thought that Mr. Lemoyre was anything other than a potential shoplifter acting in a suspicious manner and worthy to be kept under observation when she first took up observation of him. It was only later when she saw the knife that she became alarmed and feared for her safety.

[110] The essence of the Crown's case has always been the holdup note combined with the suspicious behaviour of the accused in the store and his proximity to the pharmacy. This would have been apparent to the defence from the outset, when the note was disclosed, no doubt before a trial date was set, as well as in the questioning of the accused by Constable Gillis.

[111] Further, the inclusion of the phrase that the defendant did "attempt to rob Kristina Natale of OxyContin tablets" in the information is informative to this analysis. Had the words "OxyContin tablets" been omitted from the wording in the original information, I could well see that the defence argument would gain considerable strength.

[112] However, on the evidence lead at the very outset of the trial from Ms. Natale in direct examination, it was apparent that she was a part-time cosmetician whose station was at the opposite end of the store from where the pharmacy was located and that she had no duties or responsibilities for the dispensing or the control over any prescription drugs.

[113] Applying the principles that I am required to consider under section 601(4) and (5) of the Criminal Code, I am not of the opinion that the accused has been misled by the evidence.

[114] That said I cannot be certain that the defence did not "hang their hat" on the mistake by the Crown in its failure to specify the proper victim and recognize that they had not specified the proper victim at any time in this trial, even despite being given a case on point, before submissions began by the defence and by failing to aver to the problem until after the conclusion of their final submissions.

[115] I will therefore amend the information as requested. However, I would allow the defence to reopen its case if it desires for the purpose of calling any evidence if it so wishes. In light of my findings to follow it will not be necessary to put the defence to this election.

4.1 Has the Crown Proven the Offence of Attempted Robbery Beyond a Reasonable Doubt?

[116] The position of the Crown is that they have proven beyond a reasonable doubt that the defendant had gone beyond mere preparation and had committed the offence of attempted robbery as charged.

[117] The defence argues that the acts of the accused show, at best, mere preparation and do not reach the level required to found an attempt.

[118] Section 24 of the Criminal Code states:

24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

[119] The fine line between what is an attempt and what is mere preparation is a distinction that has vexed judges for many years.

[120] As Le Dain J. wrote in the case of R. v. Deutsch at paragraph 26:

26 Several different tests for determining whether there is the actus reus of attempt, as distinct from mere preparation to commit an offence, have been identified as reflected at one time or another in judicial decisions and legislation. All of them have been pronounced by academic commentators to be unsatisfactory in some degree. For a thorough analysis of the various tests, with suggestions for an improved test, see Meehan, The Law of Criminal Attempt -- A Treatise, 1984, chapter 5, and Stuart, Canadian Criminal Law, 1982, pp. 529 ff. There is a succinct appraisal of the various tests in the English Law Commission's Report No. 102 of 1980 entitled, Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment. See, for example, Kelley v. Hart, 61 C.C.C. 364, per McGillivray J.A. at p. 370; R. v. Brown, [1947] O.W.N. 419, per Laidlaw J.A. at p. 421; R. v. Cline, 115 C.C.C. 18, per Laidlaw J.A. at p. 26; and Haughton v. Smith, [1975] A.C. 476, per Lord Reid at p. 499. Despite academic appeals for greater clarity and certainty in this area of the law I find myself in essential agreement with this conclusion.

[121] He goes on to state at paragraph 27:

27 In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question.

[122] Watt J.A. recently restated the principles engaged by section 24(2) of the Criminal Code in R. v. Root, 2008 ONCA 869, where he stated in paragraphs 93 to 100 as follows:

93 Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressed beyond it to constitute the actus reus of an attempt is a question of law. Designation of a judge's decision to characterize an accused's conduct as mere preparation or the actus reus of an attempt as a question of law is of particular importance in cases like this where the appellant's right of appeal is restricted to questions of law alone.

94 In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete. In every attempt, what is incomplete is the actus reus of the substantive offence. But incompleteness of the actus reus of the substantive offence will not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more than preparatory way. Dynar at paras. 73 and 74.

95 The actus reus may be but does not have to be a crime, tort or even a moral wrong. R. v. Cline, [1956] O.R. 539, at p. 550 (C.A.).

96 The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other. We leave the determination of where on the continuum the conduct lies to the common sense judgment of trial judges. R. v. Deutsch, [1986] 2 S.C.R. 2 at pp. 22-23.

97 The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form. Deutsch at p. 23.

98 To determine on which side of the preparation/attempt divide an accused's conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23.

99 Relative proximity may give an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p. 26; R. v. Henderson, [1948] S.C.R. 226 at p. 245. Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapse before the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26.

100 To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence. To constitute the actus reus of an attempt, an act must be sufficiently proximate to the intended crime to amount to more than mere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. Williams, Criminal Law (The General Part), at p. 625. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime.

[123] Applying these principles to the facts as I have found them in this case follows next.

[124] I find that Kristina Natale was an honest witness but that she was mistaken in some important aspects of her testimony. Most importantly, although I am of the view that Ms. Natale honestly thought that she saw a knife blade sticking out of Mr. Lemoyre's sleeve during her interaction with the male in the black sweater, I find as a fact that the defendant did not possess a knife at any time while in the Shoppers Drug Mart.

[125] My findings are based on the evidence that I do accept. The surveillance video discloses no image of the defendant with a knife. Furthermore, the very thorough search conducted by Constable Bonner and another officer subsequent to his search found no knife in the possession of the defendant or in the area that the defendant was standing at the time of his arrest. It is possible that the defendant put the knife somewhere else in the store, but it is more probable in my view that he never had one.

[126] Had he put the knife in some other area of the store, it is likely that, at some point, an employee of the store would have found it, but no such evidence exists.

[127] I also reject the theory that the defendant was somehow associated with the male in the black sweater, as Ms. Natale and the police initially believed. My close viewing of the surveillance tapes indicate that although defendant and that male pass by each other on several occasions, there is no indication of any recognition or interaction by either of them towards the other.

[128] The unidentified male is seen to be spending the majority of his time on his cell phone, while Mr. Lemoyre is not seen to be using a cell phone at any time while he is in the store.

[129] It is suggested by the Crown that he may have disposed of the knife when he left the store but I also reject this theory. Although Ms. Sebastiani thinks that she saw him outside the store, she is open to the possibility that it was another person that she saw similar in appearance. She never did see his face.

[130] As well, I view it as unlikely that he would have gone to the effort of exiting the store through the entrance doors and would have more likely exited through the normal exit, although video of the store exit does not show Mr. Lemoyre exiting the store any time after he entered until he was escorted out by police under arrest.

[131] Finally, Mr. Lemoyre's adamant denials that he ever possessed a weapon that day on the videotape are assertions that I accept. He seems in the video statement to be almost offended that he was being accused of having a weapon. His first statement to the police about the events of that night is a question; "I'd like to know what the whole knife thing was over about" [sic].

[132] Ms. Natale was anxious about what she observed to be a shabbily dressed, suspicious male who fit the description of a known thief, who seemed to interact, in her view, suspiciously with another male and who appeared to be loitering for an inordinate amount of time in front of product shelves.

[133] When Ms. Natale heard the unidentified male utter a profanity at the time that the security alert went out over the public paging system and saw his somewhat bizarre behaviour towards her that she described, this panicked her in my view and she saw perhaps what she expected or dreaded seeing at that time. She was unaware that the unidentified male was on a cell phone almost all of the time until the security video was played for her.

[134] What is the strongest evidence that supports the Crown's theory?

[135] Mr. Lemoyre is obviously in possession of a holdup note. He is seen loitering around various locations in the store, sometimes in the vicinity of the pharmacy and at one time right in front of the pharmacy. He makes no attempt to purchase or even, it appears, pick up and examine any items that he is looking at; he just stares at the shelves. He is seen dressed in a jacket that has a large hood that obscures his face from the side. He is carrying a shopping bag. He is seen at one point to open up a piece of paper (that the Crown urges me to accept is the holdup note) and then put it away. Finally, in response to a question put to him from Constable Gillis on the video tape when he is asked how do we get to the point where you go into a drug store and plan or attempt to rob them of all their 80 milligram OxyContin, the reply from the accused is that "I was angry and intoxicated at the time".

[136] At first analysis, it seems as if the Crown's case is overwhelming.

[137] As is stated in Deutsch, supra, at paragraph 26:

To determine on which side of the preparation/attempt divide an accused's conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished.

[138] The accused was proximate to the location of the intended robbery; at times, he was right in front of the pharmacy counter as the Crown points out. He had in his possession a note that would have conveyed to the reader a threat of violence should they not provide him with the sought after drug. All he had to do to complete the offence was to put the note in front of an employee in the pharmacy and wait for them to give him the drugs.

[139] The Crown argues that his loitering when being in the store, his positioning of himself near or in view of the pharmacy, was simply Mr. Lemoyre waiting for an opportunity to present the note when there were few, if any, other customers at the pharmacy. Proximity, the Crown argues, is now so close to a complete offence that it is well over the divide between mere preparation and an attempt.

[140] These are attractive and compelling arguments.

[141] Yet I am left with some nagging questions.

[142] When, for instance, did he write the note? I am not sure whether he wrote the note before he set out towards the drug store that day or if it had been written days or even weeks earlier. Due to Mr. Lemoyre's unfortunate circumstances of being essentially homeless, one would expect that he would carry most of his possessions with him most of the time. The note may very well have been written at some earlier time perhaps as preparation for some other intended robbery, not the one of the Shoppers Drug Mart on the day in question.

[143] At first, this seems like a fanciful piece of speculation especially when coupled with his statements to the police, but after I viewed his statements in their entirety, I see that the most damming statements come as a result of suggestive and controlling questions posed by the officer. This is in no way meant to be a criticism of the officer but when viewed in the entire context of the situation and the power imbalance that existed it has to be taken into account.

[144] Mr. Lemoyre later goes on in the statement on several occasions to state that he had decided that he couldn't do that to the people in the store.

[145] At page 22 of the transcript of the video interview, the following exchange takes place:

Q. So when you say you didn't have any intentions of actually doing anything. Why would you walk into Shoppers Drug Mart dressed the way you were with that knife in your pocket with no intentions of doing anything?

A. In the back of my mind it was in my mind but I, like I couldn't do it.

Q. So at some point you intended to do it but when you went into the store you kinda chickened out or got scared off?

A. Yeah I thought about it. I just felt for the people for the working there how they would feel.

[146] First, we see that Constable Gillis is asking extremely suggestive questions to Mr. Lemoyre who, by Constable Gillis' assessment, may be under the influence of drugs, and by the defendant's admission had taken at least three OxyContin tablets that day. The first question asked above suggests again that he went into the store with a knife in his pocket. His response, rather than being an admission to having a knife, in my view is something that Mr. Lemoyre just ignored or overlooked in the question.

[147] I also believe that it is possible that Mr. Lemoyre just overlooked or ignored the temporal setting of the questions that he had abandoned the intention only after he entered the store as opposed to some time before going into the store.

[148] In other words, I think that it is possible that Mr. Lemoyre had once thought about robbing that store or some other store of drugs and had made the note in preparation for that crime. Because I am not sure when he did this, I cannot say that the abandonment of his intention occurred before he went into the store or even reached the store, or whether it occurred after he was in the store.

[149] If it occurred after he was in the store, then of course he would have crossed the threshold from preparation to an attempt. See R v. Kosh, [1965] 1 C.C.C. 230. In that case, however, the facts were that the two accused had attended the premises in the early morning hours and attended at a door of a business which one of them illuminated with a flashlight and attempted to manipulate the lock, it appears, for about two minutes before leaving the area without entering the door and without being interrupted in any way. In holding that the offence of attempt break and enter had been made out, the Saskatchewan Court of Appeal affirmed the conviction. The court in that case held on page 235:

In my view, once the essential element of intent is established, together with overt acts towards the commission of the intended crime, the reason why the offence was not committed becomes immaterial. Once these elements are established, it makes no difference whether non-commission was due to interruption, frustration or a change of mind.

[150] Similarly in the case of R. v. Dennis, [1998] A.J. No. 114, the Alberta Court of Appeal affirmed a conviction for an attempted robbery when the accused was seen to be watching a restaurant with binoculars, 11 minutes from closing time, while sitting in his car. At one point, he drove over to look into an unmarked police car before returning and taking up surveillance again. He was in possession of a loaded, cocked handgun when arrested. Mr. Dennis had testified that he had been "casing" the restaurant with a view to a possible hold up but had not decided whether to carry it out by the time he was arrested.

[151] The Court of Appeal in Dennis, supra, held at paragraph 6 that the trial judge did not commit error when he found that the actions of the accused that night went beyond mere preparation. They said:

6 First, counsel contended that the preparation stage had not ended, and no step to put the design into action had begun, so the offence of an attempt was incomplete. The trial judge saw and heard the witnesses, especially Mr. Dennis, and some evaluation of his personality and character must be relevant to that question. For example, is he a meticulous, or an impulsive, person? Is he decisive, or indecisive? Seeing the witnesses gives an advantage. And in our view, cocking the gun was something the trial judge could well consider as going beyond preparation. It certainly gives the lie to merely casing, with no decision to rob. Driving over to peer into the unmarked police car might also go beyond preparation. We repeat that the closing time of the restaurant was only 11 minutes away. It would close without Mr. Dennis' having to take a single other step.

[152] My analysis of the facts in this case takes into account the appearance and the demeanour of Mr. Lemoyre in the video statement taken shortly after his arrest. He seems in the statement hesitant and unsure in certain areas, except those dealing with the knife. He seems like a lost soul to me in that video and by his description of his life up to the time of his arrest and by the actions that one can observe in the surveillance video.

[153] I have no doubt that at one point he had contemplated robbing a drug store. I do have a reasonable doubt that he contemplated robbing Shoppers Drug Mart on the evening that he was arrested.

[154] The paper that he is seen looking at in the store on surveillance video may have been another one of the papers that he had in his possession when he was arrested, other than the holdup note. The paper he was seen holding was crumpled and not folded in half like the holdup note entered as Exhibit 5. Although there may be some crinkles visible on the note, I cannot come to the conclusion after examining all of the evidence that he was simply looking at the holdup note while in the store, trying to bolster his courage to commit the offence or even ensuring that he had the note with him. He may have been looking at another paper that was in his possession at that time.

[155] The lack of a red crayon found on him suggests that he wrote the note at the very earliest before he left home that day, some six hours before the incident. Indeed, the note may have been written days or weeks before this. I simply do not know. He was wandering aimlessly around town most of the day, on his own.

[156] He was seen not just lurking around the pharmacy but on several occasions walking up and down other aisles in the store. He was seen staring at the cold drink refrigerator for some time at one point. Are these the actions of a man who is intent on robbing a pharmacy of drugs, or a poor homeless wretch who is looking at items that he may want yet cannot afford? It was never brought out in evidence whether he had any money on him at all when he was arrested.

[157] At the time of his arrest, he appeared to be moving slowly and when confronted by Constable Bonner with handgun drawn, he initially did not follow commands to drop his bag and get face down on the floor. It appeared to Constable Bonner at first that he didn't even recognize that he was being confronted by a police officer, even though Constable Bonner was in full uniform with gun drawn. Constable Bonner was of the opinion that he may have been under the influence of drugs or alcohol because of his appearance, and seeming lack of understanding that he was being arrested at first.

[158] In R. v. Sorrell, [1978] O.J. No. 714 (Ont. C. A.), our Court of Appeal upheld an acquittal by the trial judge of two accused charged with attempted robbery. The facts in that case were that the two accused were seen outside of a restaurant near closing time while masked with balaclavas and while one was armed with a handgun. The restaurant had been locked early for the night but the lights were still on and employees were in the restaurant. One of the two men rapped on the door and the window and the manager said that the restaurant was closed, which was met with surprised looks by the two. They then left the area of the restaurant and the manager called police who shortly after saw the accused and stopped them, finding a loaded handgun on one and a discarded balaclava nearby.

[159] The trial judge was not convinced beyond a reasonable doubt that the two accused possessed the necessary intention to rob the store. In that case, at paragraph 17, the Court of Appeal stated:

It will be observed that while the trial judge made an express finding that he was satisfied beyond a reasonable doubt that the respondents were the two men who had approached the store, and that one of them had a gun, he made no similar finding with respect to the existence of the necessary intent to rob.

[160] The court further states at paragraphs 22 to 25 the following:

22 In the present case, there was no evidence of the intent to rob other than that furnished by the acts relied on as constituting the actus reus. There was no extrinsic evidence in the form of statements of intention, or admissions by the respondents showing what their intention was.

23 The prosecution in this case was forced to rely exclusively upon the acts of the accused, not only to constitute the actus reus, but to supply the evidence of the necessary mens rea. This Court in R. v. Cline, supra, rejected the so-called "unequivocal act" test for determining when the stage of attempt has been reached. That test excludes resort to evidence aliunde, such as admissions, and holds that the stage of attempt has been reached only when the acts of the accused show unequivocally on their face the criminal intent with which the acts were performed. We are of the view that where the accused's intention is otherwise proved, acts which on their face are equivocal, may, nonetheless, be sufficiently proximate to constitute an attempt. Where, however, there is no extrinsic evidence of the intent with which accused's acts were done, acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime that the accused is alleged to have attempted to commit, and hence insufficient to establish the offence of attempt.

24 Counsel for the respondents while conceding that the trial judge's reasons are not free of ambiguity, submitted that they are reasonably open to the interpretation that he was searching for evidence that satisfied him beyond a reasonable doubt that the accused intended to rob the store in question, and at the end of his quest was not satisfied beyond a reasonable doubt, that the acts done by the accused supplied the necessary proof of intent.

25 We think that this submission accurately states the basis upon which the trial judge acquitted the respondents, and the Crown has not satisfied us that but for the self-misdirection with respect to which complaint is made, that the verdict of the trial judge would not necessarily have been the same. It is not to the point that, on the evidence, we would have reached a different conclusion with respect to the respondent's intentions.

[161] Before I move on from the Sorrell case, I must say that the participants in that appeal intrigued me. Mr. David Doherty, as he was then known, argued the case for the Crown. Terry O'Hara acted for one of the accused and Alan Gold for another. The panel of the Court of Appeal was made up of two of the recognized giants in the evolution of our criminal law, Justice's Dubin and Martin.

[162] Terry O'Hara was appointed to the Ontario Court of Justice in 1995 in the jurisdiction that I practiced prior to my appointment to the bench and I appeared in front of him many times. He was a huge man with a huge heart and a huge intellect. He singlehandedly took on the role of delay reduction in Newmarket and would sometimes sit until well into the evening doing pretrial after pretrial in his own personal quest to reduce delay and to ensure that just results were realized for all participants in the justice system.

[163] Yet when he did a trial, he would sit back, look at the witnesses and you could see him assess them and the evidence in a trial. He frequently would not take notes (such is the benefit of a photographic memory) and would become immersed in the case. At the end of it, he would give a clear, precise and eloquent judgment that would always leave the participants with the sense that he had listened intently to every witness and each counsel, and did his best to do justice in that case. He died early after too few years on the bench. Justice O'Hara loved the law and it consumed him. By his nature, he taught me many things that I strive to apply in my judicial duties.

[164] I need not say anything more about Mr. Doherty, as he then was, counsel for the Crown in Sorrell, or about Alan Gold who argued this appeal as co-counsel with Terry O'Hara. Their contributions to the law are and continue to be enormous.

[165] All these brilliant people arguing a point of law in 1978, one year before I even graduated from law school, that still defies clear, lucid, and easy definition, only perhaps because justice is tempered into the assessment and each case sometimes turns on a sense or feeling that is impossible to put into words.

[166] Even though in this case, there are utterances by the accused that could be interpreted to be inculpatory indicating that he went into the store with the intention to rob it, they were given in response to suggestive questions by the officer that presupposed that assertion. Considering the state that the police believe the accused to have been in and the accused's admission that he had taken at least three of his prescribed OxyContin pills that day and after carefully watching his actions as captured on surveillance video that day, I put little weight on his admissions and cannot dismiss the real possibility that he abandoned his intention to rob a drug store well before he entered that particular Shoppers Drug Mart.

[167] The actions of the accused on that day on the entire record before me, and the evidence as a whole in this case, leave me with a reasonable doubt concerning his intention, although not without a healthy suspicion.

[168] Accordingly I find him not guilty of the charge.

Released: February 17, 2012

Signed: "Justice Stephen D. Brown"