WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

J. Battersby, for the Crown

— And —

Marlon Marshall

A. DeMarco, for the accused

Heard: January 14, 15, 16, 17, 22, 23, 27, 29, February 1, 2013

Decision

FELDMAN J.:

Introduction

[1] At this preliminary inquiry, evidence was called in relation to Marlon Marshall's alleged involvement in four counts each of robbery, wear disguise, use of an imitation firearm and one count of possession of property obtained by crime (January 10, 2012). At the Crown's request, I discharged Mr. Marshall on four counts of robbery with a firearm.

[2] On January 14, 2013, Robert Dean, entered guilty pleas before me to six counts of robbery, four of use of an imitation firearm and two counts of wear disguise and was sentenced. He was co-accused with Mr. Martin on those charges that were the subject of this preliminary hearing.

[3] Ms. Battersby, for the prosecution, submits that the evidence against the defendant on the January 10th allegations is overwhelming and that his identity on the remaining three robberies is established by objectively reliable circumstantial evidence.

[4] Mr. DeMarco, for the accused, does not contest committal on the January 10th charge, but submits that evidence of identity on the other counts is insufficient to commit for trial.

Committal Principles

[5] A preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. This does not require the judge to draw inferences from the facts or to weigh evidence, but he or she must weigh the evidence only in the limited sense of assessing whether it is reasonably capable of supporting the inferences the Crown asks the trier of fact to draw: R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52 (S.C.C.) at para. 1. Inferences must be ones that can be reasonably and logically drawn from a fact or group of facts established by the evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209.

[6] This is particularly so with circumstantial evidence where there is "an inferential gap between the evidence and the matter to be established": Arcuri, para. 23. In this regard, judges need determine whether the inferences sought to be drawn were reasonable and capable of filling the gaps in the evidence in the context of all the evidence: R. v. Turner, [2012] O.J. No. 3088 (Ont. C.A.), at para. 28.

[7] Ultimately, the judge's task is to decide whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt: Arcuri, para. 30.

[8] Judges are to be mindful that sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt: R. v. Turner, supra, referring to direction by McLachlin J. (as she then was), in R. v. Charemski, [1998] 1 S.C.R. 679 (S.C.C.).

The Evidence

The January 10 Robbery

[9] On January 10, 2012, police Mobile Support Services (MSS) observed Robert Dean pick up Mr. Marshall at Kennedy subway station in a blue Honda Civic. Mr. Marshall was wearing a dark winter jacket with a fur-trimmed hood. At a gas station, Mr. Dean purchased some Glad garbage bags. The two men travelled to several Scarborough plazas that had banks, eventually returning to one at 2359 Brimley Rd that had a CIBC bank. They entered it wearing black balaclavas over their faces, Mr. Marshall's having two eye openings and none for his mouth, Mr. Dean's with one eye opening. They both had likely imitation guns that they brandished while committing a robbery that they completed within a few minutes. Mr. Marshall entered the bank first, as did Mr. Dean's co-accused in the other robberies.

[10] Following the execution of the robbery, they then drove to a Holiday Inn in Markham where Mr. Marshall discarded a garbage bag found later to contain an imitation gun, black balaclava with one eye hole and one with two eye holes, Dean's beige wool hat with tassels and red stained money. DNA linked both men to their respective face coverings.

[11] After a high-risk takedown, police observed both men to have red dye staining on their clothes from an exploded dye pack contained within the monies taken from the bank and found a large amount of red stained money in the car. Mr. Marshall's jacket was recovered from the back seat of the Honda. It had black imitation fur lining. A small imitation black gun with a brown handle, described by one of the bank employees, was discovered in one of the accused's jacket pockets.

[12] The evidence pointing to Mr. Marshall as Mr. Dean's co-accused is overwhelming. Counsel for the accused does not seriously challenge committal on this and related charges. He will be committed for trial on the January 10 charges, including robbery, wear disguise, use imitation firearm and possession of property obtained by crime.

The December 16 Robbery

[13] Mr. Dean and his masked co-accused robbed a CIBC bank at 2300 Lawrence Ave East on December 16, 2011. As on Jan 10, both men were black males of similar stature, as described by police and witnesses. The same modus operandi of entering the bank in the morning hours, Dean's co-accused first, with guns drawn and the robbery completed within minutes was in operation. The co-accused was wearing a precisely similar black jacket with a fur-trimmed hood and fake fur lining that was of similar length and zippering. His face was covered by a similar black balaclava with two eye holes and none for the mouth. He was seen to carry a small revolver with a black barrel similar to the one subsequently seized from his jacket.

[14] One inference available on all the evidence relating to all the December 16 charges is that given the significant similarities in appearance, apparel, weaponry and modus, Mr. Marshall was that co-accused. I am mindful of discrepancies in the description of the men by the bank employees but note they were the product of traumatic and fast-moving events. I accept that particularly circumstantial identification evidence must be approached cautiously given its inherent frailties. But the authorities indicate that in relation to committal where more than one inference can be drawn, only the inferences that favour the Crown are to be considered: see Dubois v. The Queen, [1986] 1 S.C.R. 355, referred to in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635.

[15] It is my view that on all the evidence it is open to a reasonable jury properly instructed to be satisfied to the requisite standard that the identification of the accused is established. Mr. Marshall will be committed for trial on this and related December 16 counts.

The November 24 Robbery

[16] Robert Dean was one of two men who robbed the CIBC bank at 1100 Ellesmere Rd. Witnesses described the second man in terms similar to that of the earlier described robberies as 6'2", medium build, darker complexion than the light skinned co-accused, African Canadian, in his late 20s and with a tattoo in dark ink on the left side of his neck. It is of note that upon his arrest police observed such a tattoo similarly inked in on Mr. Marshall's neck. As well, witnesses saw him point a very small revolver with a brown handle at them, one similar to that found in the defendant's coat following his arrest on January 10. Bank surveillance videos showed him wearing a black balaclava with two eye holes and none for the mouth. The modus operandi of the robbery was similar to that of the others.

[17] In the context of all the evidence, including discrepancies by victim witnesses under trauma, it is open to the jury to infer that the second man was Mr. Marshall. He will be committed for trial on this and related counts.

The December 8 Robbery

[18] Again, Dean was one of two men who robbed the National Bank at 7380 McCowan Rd. in Markham. Their description and physical stature was similar to those involved in the other robberies. Dean's co-accused was first in brandishing his gun, again described as small, black and with a brown handle. The modus and timing was similar. The co-accused's face was masked by a balaclava, consistent in design and shape with the others and with part of his neck exposed as in the other offences.

[19] In considering whether it was Mr. Marshall behind the mask, the jury would consider the descriptions and circumstantial evidence in the weighing process. Inevitably directed to take into account discrepancies or gaps in the evidence, the trier of fact would as well be able to assess relevant cumulative similarities in the various counts in relation to modus, timing, physical stature and description of the suspects. In this regard, it would be open to the trial judge to suggest with regard to circumstantial elements of identification that the jury weigh the objective improbability of coincidence in the context of all the evidence.

[20] The elements of identification on this count are somewhat weaker than on the others, but not to the degree that a reasonable inference favourable to the prosecution on this issue of fact should be kept from the jury's consideration. It is for the jury to weigh the calibre of this evidence and competing inferences in the context of the direct and circumstantial identification evidence on all the charges. The accused will be committed for trial on this and other related counts.

Released: February 7, 2013

Signed: "Justice L. Feldman"