Court File and Parties

Ontario Court of Justice

Date: 2015-06-18

Court File No.: Central East - Newmarket 4911-998-13-07797-01; -02

Between:

Her Majesty the Queen

— and —

Gordon Edwards and Blair Kerr

Before: Justice David S. Rose

Heard on: November 25, 26, December 1, 2, 2014, January 14, 22, 30, February 17, March 2, May 4, 7 and 8, 2015

Reasons for Judgment released on: June 18, 2015

Counsel:

• K. Stewart, counsel for the Crown
• G. Ruta, counsel for the accused Gordon Edwards
• B. Funston, counsel for the accused Blair Kerr

ROSE J.:

Introduction

[1] Blair Kerr and Gordon Edwards were arraigned, and pleaded not guilty before me on a 35 Count Information. On May 8, 2015 I partly granted a Directed verdict motion brought by Mr. Funston, and acquitted Mr. Kerr on Counts 1 - 7. That same day Mr. Stewart asked me to dismiss Counts 5, 8 - 11, 28, 33 - 35 against both accused. These reasons for judgment therefore deal with the remaining charges, namely:

Counts 1/2 against Mr. Edwards only – May 29, 2013 Break and Enter into a business at 15005 Yonge Street in Aurora. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 3/4 against Mr. Edwards only – June 3, 2013 Break and Enter into a business at 444 Hollandview Trail in York Region. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 6/7 against Mr. Edwards only – July 15, 2013 Break and Enter into a business at 4585 Highway 7 in Vaughan. Possession of Property Obtained by Crime in relation to the same Break-in.

Count 12/13 against both accused – September 2, 2013 Break and Enter into a business at 292 Geneva Street in St. Catharines. Possession of Property Obtained by Crime in relation to the same Break-in.

Count 14 against both accused – September 4, 2013 Break and Enter into a business at 50 Lockridge Avenue in Markham.

Counts 15/16 against both accused – September 9, 2013 Break and Enter into a business at 900 Bray Circle in Newmarket. Possession of Property Obtained by Crime in relation to the same Break-in.

Count 17 against both accused – September 10, 2013 Break and Enter into a business at 129 Pederson Drive in Aurora.

Counts 18/19 against both accused – September 10, 2013 Break and Enter into a business at 13321 Yonge Street in Richmond Hill. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 20/21 against both accused – September 11, 2013 Break and Enter into a business at 1450 Clark Avenue, Unit 20 in Vaughan.

Counts 22/23 against both accused – 12 September 2013 Break and Enter into a business at 431 Alden Road, Unit 2 in Markham. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 24/25 against both accused – September 13, 2013 Break and Enter into a business at 70 Copper Creek Drive in Markham. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 26/27 against both accused – September 18, 2013 Break and Enter into a business at 1420 Regional Road 2 in Courtice. Possession of Property Obtained by Crime in relation to the same Break-in.

Counts 29/30 against both accused – 17 October 2013 Break and Enter into a business at 140 Queensway East in Georgina. Possession of Break in Instruments from the same day.

Counts 31/32 against both accused – October 9, 2013 Break and Enter into a business at 204 Silvercreek Parkway North in Guelph, Possession of Property Obtained by Crime in relation to the same Break-in.

[2] On January 22, 2015 I partly granted a motion by Mr. Stewart to admit similar fact evidence against Mr. Edwards only on the Counts 1/2, 6/7, 22/23. The Similar Fact Evidence Application Record has synopses of each break-in on the Information which was admitted by the defence for the truth of their contents, i.e., that break-ins did in fact occur at the times and places alleged. As a result of that ruling, it is evidence at this trial that Mr. Edwards previously broke into commercial places. This includes the same address as in Count 22/23, Alden Coffee Shop. The similar fact evidence was that Mr. Edwards pleaded guilty before Mr. Justice Schneider on November 5, 2008. In that proceeding Mr. Edwards admitted to being involved in some 38 Break and Enters into businesses in Toronto and the GTA region. In his guilty plea, Mr. Edwards admitted that in all cases he would break-in:

i - after communicating with a co-perpetrator;

ii - at night;

iii - at businesses;

iv - to steal money;

v - with a co-perpetrator would pick up the other and proceed to the target location to ensure departure from the location without detection, and arrange a rendezvous at locations when more than one place was entered on one night;

vi - by neatly removing a pane of glass from a door and placing it neatly aside the door, sometimes along with the trim;

vii - at locations that were largely food and coffee businesses;

viii - by gliding along the floor to avoid detection, and then locating the cash drawer or safe;

ix - wearing gloves, dark clothing, along with some hat, collared clothing or balaclava;

x - occasionally using a cardboard box to allow for protected glass removal and entry;

xi - using a cell phone or walkie-talkies; and

xii - using a GPS device.

[3] In final submissions I asked Mr. Stewart if he was alleging similar fact evidence as between the Counts, and he conceded that he was not. Therefore I will not consider similarities between the various allegations. The issue in this case is identity.

Non – Similar Fact Evidence

Surveillance

[4] Physical surveillance was conducted by members of the York Regional Police Service (YRPS) after Mr. Edwards was identified as a person of interest in the break-ins. The physical surveillance evidence was not seriously challenged, and I do not understand the credibility of that evidence to be in question.

[5] On July 29, 2013 Det. Boulay of YRPS identified Mr. Edwards going into, and leaving, 1575 Queen Street East in Toronto. Mr. Edwards was identified from a mug shot picture. Many photographs were taken that day of Mr. Edwards. Mr. Edwards was similarly located the next day, July 30, by Boulay and other surveillance officers, namely Bloxam, Holly, McPherson, Hay and Martin. Mr. Edwards was seen that day driving a Black Dodge Caliber with licence plate BSFD 455. Boulay determined that vehicle was registered to Car Sense Auto Rentals.

[6] On July 31, Mr. Edwards was seen in surveillance by Det. Boulay with a female who he thought was Terry Lancelotte. Boulay contacted Car Sense Auto Rentals and learned that the Dodge Caliber was rented to Ms. Lancelotte on July 30 with a tattooed male 5'10 – 5'11 in height. Boulay learned that all vehicles from that rental agency have tracking devices installed by the rental agency itself. This fact became significant in the investigation as things developed.

[7] On August 1, Det. Bloxam was at 1575 Queen Street in Toronto and took pictures of Mr. Edwards. Some of these highlighted his footwear. It appears that Mr. Edwards wears Nike Air Max running shoes. I heard no evidence about the relative rarity of Nike Air Max shoes, and I do take judicial note that Nike is an extremely popular brand of footwear. I say this because it appears that the culprit in some of the break-ins captured on video was wearing Nike running shoes. Bloxam took photographs that day of Mr. Edwards with a male whose identity was then unknown. He testified that the unknown male in the photograph is in fact Mr. Kerr. From my view of the photograph and Mr. Kerr who attended before me during this trial I agree that Mr. Kerr is the person in Exhibit 4(l).

[8] On September 4, 2013 Det. Boulay went to 1575 Queen Street. He had called the owner of Car Sense Car Rentals and learned that Ms. Lancelotte had rented another car, a Blue Ford Fusion, licence plate BSLC 721, 8 days previous. That vehicle was located by Boulay at 1575 Queen Street on September 4. He saw Mr. Edwards get into the vehicle. On September 10, Boulay went to 1575 Queen Street to do surveillance and again located the Blue Ford Fusion in the parking lot. At 11:45 p.m. Mr. Edwards was seen getting into the Ford Fusion and driving east bound on Eastern Avenue in Toronto, and 5 minutes after midnight the car was lost by the surveillance officers.

[9] On September 17, Boulay obtained a Production Order for the GPS tracking data for the Ford Fusion from the rental agency.

[10] On September 18, PC Marshall of YRPS was at 1575 Queen Street doing surveillance. He saw the Ford Fusion enter the parking lot at 1:47 p.m. and Mr. Edwards get out the driver's side door.

[11] On September 19, Mr. Edwards was seen by Boulay leaving 1575 Queen Street in the Ford Fusion. At 1:29 a.m. on September 20, Mr. Edwards was seen at 1950 Lawrence Avenue East in Toronto with another male. That person was subsequently identified from an in-store camera as being Mr. Kerr. Both Mr. Edwards and Mr. Kerr left in the Fusion. On September 26, Boulay learned that the rental agreement for the Ford Fusion was extended again – this time for an additional week. On October 9, Mr. Edwards was surveilled at Car Sense Auto sales arriving with Ms. Lancelotte. Boulay had been advised that Ms. Lancelotte may be exchanging the Ford Fusion for another car that day. The surveillance team watched Ms. Lancelotte drive in to the agency in the Fusion. She and Mr. Edwards appeared to discuss another car, but ultimately left again with the original Ford Fusion. They were tracked to 500 Dawes Road where, at 1:20 pm, Mr. Kerr got into the Fusion.

[12] Boulay had obtained a tracking device warrant and, with that in hand, had a tracking device installed on the Ford Fusion on October 9. A first tracking device was installed on the Ford Fusion but it inexplicably ended up on a Domino's Pizza truck, and a second one had to be re-installed. While the police already had access to the GPS location data operated by the rental agency, the police tracking device would allow for real time tracking of the vehicle. On October 16, 2013 Boulay went with this team (Boulay, McKay, Thomson, Bains, Young, Marshall, Tester and White) to 1575 Queen Street in Toronto. Bloxam was operating a computer which would give the team precise location data for the Fusion in real time. The Ford Fusion BSLC 721 was indeed located at 1575 Queen Street at 10:10 p.m. in the parking lot. Gordon Edwards drove the car with an unknown male in the passenger seat. The surveillance team followed it from downtown Toronto to Simcoe, Ontario where it stopped on Sheridan Boulevard near Queensway East. The police-installed Tracking device permitted the police to deploy themselves so as to investigate what the two men were doing that night. Bloxam went on foot at 3:16 a.m. to Queensway East in Simcoe where he saw an unknown male walking southbound to the location of the Ford Fusion. He determined that the window of an A&W restaurant drive through was smashed. After sharing this information with his squad, YRPS investigators asked the Ontario Provincial Police to stop the Ford Fusion as it left Simcoe and arrest the occupants.

[13] At 3:48 a.m. on October 17, Cst. Wagenaar and Bolton stopped the Ford Fusion with Gordon Edwards and Blair Kerr in it while they travelled northbound on Highway 24 in Simcoe, Ontario. This was about 30 minutes south of Brantford. Gordon Edwards was the driver, and Blair Kerr, the passenger. Both were arrested for the break-in at the A&W which had just taken place. Many items were seized from the car by the police incidental to the arrest. These included a yellow Fat Max Stanley Pry Bar, ear protectors, an extension cord, a grinder, two way radios, a wrench, screwdriver and many items of clothing. Notably the Crown points out that among the clothing seized was a dark hoodie, and a pair of Nike Air shoes.

[14] On arrest Mr. Kerr said that he lived at 500 Dawes Road in Toronto.

[15] Subsequent investigation by the OPP revealed that the A&W in Simcoe was broken into at 3:22 a.m. This was limited to a window being smashed in the drive through. There was no evidence of further entry into the restaurant.

GPS Surveillance

[16] On September 17, 2013, the YRPS had obtained the GPS data from the device installed and maintained in the Ford Fusion from the car rental agency. Documentary evidence was lead at trial which suggested that Car Sense Auto Sales rented a Blue 2007 Ford Fusion licence plate BSLC 721 to Terry Lancelotte on August 27, 2013. A rental agency agreement for that car and that date with Terry Lancelotte and "PractiCar Rentals" was put in evidence. It showed the return date of 18 September 2013, and also attached a document from Genuine Tracking Solutions for a specific "G.T. unit" and the same Ford Fusion. According to Exhibit 22, the accuracy of the device has a position accuracy of "10 metres 2D RMS". Another exhibit entered at trial showed the raw location data obtained by the police for that tracking device. It shows the vehicle identifier as a "721 BLSC Ford Fusion". Lastly, a YRPS civilian employee Della Rankin testified that she, in her capacity as a crime analyst, took the raw data and compared the location of the Ford Fusion at the time of various break-ins with the location of each break-in. She generated two reports; both were entered as exhibits at the trial (#27 and 30). The raw data generated from the car rental GPS was also entered as an exhibit (#34) Det. Boulay had given her the known locations of Gordon Edwards' residence at 1575 Queen Street East in Toronto and Mr. Kerr's at 500 Dawes Road. She obtained other locations using Bing Maps.

[17] Her evidence was that the Ford Fusion travelled to the vicinity of 4 Greenmeadow Court in St. Catharines on September 2, where it remained from 2:02 a.m. to 3:18 a.m. The Occurrence report filed indicates that at 2:40 a.m. that day the Dairy Queen at 292 Geneva Street in St. Catharines was broken into. Ms. Rankin was clear that the addresses from Bing Maps are approximations. The Fusion then travelled to the vicinity of 500 Dawes Road. Det. Boulay's evidence was that Greenmeadow Court in St. Catharines is 475 metres from 292 Geneva Street.

[18] On September 4, 2013 a break-in occurred at Beaver Creek Florist at 5:48 a.m. The Ford Fusion in which Mr. Edwards was seen by YRPS officers was located by the GPS device at Fairholme Drive in Markham between 5:23 and 5:42am, which is near the scene of the Beaver Creek Florist. The Fusion then travelled to the vicinity of 500 Dawes Road.

[19] Sometime between 10:10 p.m. on September 8 and 7:00 a.m. on September 9, 2013, the Little Caesar's Pizza at 17735 Leslie Street was broken into. That break-in was detailed in the Similar Fact Evidence materials at tab 16. According to the Della Rankin report in Exhibits 27 and 30, the Ford Fusion is approximately 250 metres away between the hours of 5:00 a.m. and 5:16 am, parked at 900 Bray Circle Newmarket. The Fusion then travelled to the vicinity of 500 Dawes Road.

[20] The Starbucks restaurant at 129 Pederson in Aurora was broken into sometime between 10:30 p.m. on the night of September 9, and 4:50 a.m. on September 10. Between 4:10 a.m. and 4:41 a.m. on September 10 the Blue Ford Fusion was located by GPS tracking on Star Crescent in Aurora, which is near the Starbucks. The Fusion then travelled to the vicinity of 500 Dawes Road.

[21] On September 10, at some point in the early morning, there were break-ins into two businesses at 13321 Yonge Street in Richmond Hill – Micatoni's and Domino's Pizza. Between 5:06 a.m. and 5:43 a.m. the Ford Fusion was stationed in the area of Ridge Road, which is a short distance from that location. The Fusion then travelled to the vicinity of 500 Dawes Road.

[22] On September 11, 2013, sometime between 2:30 a.m. and 8:45 am, the Pizza Pizza at 1450 Clark Avenue in Vaughan was broken into. The Ford Fusion was parked on Havenbrook Court in Vaughan from 3:55 a.m. to 5:03 a.m. Det. Boulay described that as being near 1450 Clark Avenue. Exhibit 27 has the two locations close on the map.

[23] Charge 22 – 23: Sometime between 3:35 p.m. on September 11 and 6:10 a.m. on September 12, 2013, Alden Coffee Shop at 431 Alden Road in Markham was broken into. GPS tracking put the Ford Fusion in the area of Hood Avenue and Alden Road, Markham between 1:57 a.m. and 2:28 a.m. That is near the Alden Coffee Shop according to both Det. Boulay and Exhibit 27. The vehicle then travels to 500 Dawes Road.

[24] Sometime between 1:00 a.m. and 9:00 a.m. on September 13, 2013 the Pizza Nova restaurant at 70 Copper Creek Drive was broken into. The Ford Fusion was parked in the area of Albert Roffey Crescent in Markham between 3:13 a.m. and 3:29 a.m. Det. Boulay and Exhibit 27 describe those locations as being near each other. The vehicle then travels to 500 Dawes Road.

[25] The last piece of GPS data from the car rental tracking unit is from September 18, 2013. Sometime between 11:37 p.m. the night before and 7:41 a.m. that day the Dairy Queen at 1420 Highway 2 in Courtice was broken into. The Ford Fusion was parked on Dale Park Drive, near 1420 Highway 2 from 4:28 a.m. to 6:17 a.m. that morning. The vehicle then travels to 500 Dawes Road.

[26] Both Mr. Funston and Ms. Ruta argue that the Crown has failed to prove the reliability of the GPS evidence. Mr. Funston argues that the document relating to the Genuine Tracking Solutions (GTS) at Exhibit "C" of Exhibit 29 was never authenticated. The GPS data from GTS is limited they also argue because the locations identified in the raw data are approximations and, according to the disclaimer, cannot be confirmed.

[27] As regards the evidence of the installation of the GTS device by Car Sense Auto Sales, I am satisfied that Exhibit 29 does provide evidence that Mr. Abramovich does own Car Sense Auto Sales and that he did rent the blue 2007 Ford Fusion with licence plate BSLC 721 to Terry Lancelotte on August 27, 2013. I recognize that the car rental agreement at Exhibit "A" to Mr. Abramovich's Exhibit "A" does evidence ownership of the Fusion and who he rented the vehicle to. That vehicle had a GTS tracking device, as Exhibit "C" shows, which I take to mean part of the car itself albeit an important feature given the issues litigated at trial. Exhibit 29 purports to be an Affidavit under s. 657.1 of the Criminal Code, and clearly it has the deficiency that it does not contain a statement of value as s. 657.1 (b) requires. Secondly, Exhibit "A" shows a car rental agreement between PractiCar Car and Truck Rentals and Terri Lancelotte, and not Car Sense Auto Sales. There is no reason however to doubt the accuracy of Mr. Abramovich's statement that he did rent the Fusion to Terri Lancelotte on August 27, 2013. This is not a case where anything turns on the value of the car, or on ownership of the car. That the letterhead said "PractiCar" and not "Car Sense" seems to me immaterial in this case. This is not a case about damages or privity of contract. Mr. Gniewek of Genuine Tracking Solutions testified at trial that he did install the tracking device on the 2007 Ford Fusion for Mr. Abramovich, which tends to confirm Mr. Abramovich's Affidavit that he owned the car rental company which installed the GPS tracking device on the car it owned, namely the 2007 Ford Fusion with licence plate BSLC 721 rented by Ms. Lancelotte.

[28] Similarly, to the extent that the evidence about the GPS raw data only evidences an approximation of the location of the device mounted on the Fusion, I agree that this affects the weight of the evidence. Nonetheless, the GPS data device was mounted on the Fusion by Mr. Abramovich as with all of his cars. GTS tracked the location of the Fusion, and Mr. Abramovich provided that data to YRPS pursuant to a Production Order. The relative precision or imprecision of the data is apparent to all, and will result in the appropriate weight being given to it in the overall context of this circumstantial case. It must be born in mind, and I do, that the GPS data tracks the Ford Fusion in early morning hours to parts of the province where neither Ms. Lancelotte nor Mr. Edwards has any connection according to the evidence.

[29] Another claim by Mr. Funston and Ms. Ruta is that Ms. Rankin's use of the GTS data was both unscientific and unreliable. To bolster that argument, the defence points out that Ms. Rankin used data in Exhibit 34 which had the licence plate "721 BLSC Ford Fusion", whereas the Ford Fusion evidenced in Exhibit 29 is BSLC 721. I disagree that this is anything more than a typographical error. There is no real dispute that both Det. Boulay and Ms. Rankin obtained the GTS data in Exhibit 34 from Mr. Abramovich, and had direct access to the data from GTS. Ms. Rankin plotted the geographical location of the Ford Fusion on maps relative to the scene and time of several break-ins. This is not something which requires a scientific opinion see R. v. Hamilton 2011 ONCA 399 at paras 279 - 280.

Forensic Evidence

[30] The Crown called two expert witnesses at trial. Dr. Elspeth Lindsay from the Center of Forensic Sciences (CFS) was qualified as an expert to give opinion evidence in the area of Trace evidence analysis relating to the analysis and comparison of paint. In qualifying her to give such an opinion I did not allow her to testify about the relative rarity of any match between two paint samples. Her report was filed at trial as Exhibit 6.

[31] Dr. Lindsay examined a safe that was seized from the break-in which occurred at Domino's Pizza on October 9, 2013 in Guelph. That safe was painted black. This is alleged in Counts 31 and 32 of the Information. She also examined the yellow Stanley Fat Max pry bar seized from the Ford Fusion when both accused were arrested on October 17. The safe from Domino's Pizza had yellow chips on it in an area of the safe which was damaged. Similarly the pry bar had black paint on it. Dr. Lindsay subjected the paint chips to Pyrolysis Gas Chromatography – Mass Spectrometry analysis, Fourier Transform Infrared Spectroscopy analysis, and an electron microscope. After examining those chips, as well as the paint on the Stanley pry bar, it was her opinion that the pry bar could not be excluded as a source of the yellow paint on the safe. Also, the safe could not be excluded as a source of the black paint on the Stanley pry bar. Dr. Lindsay fairly conceded in cross-examination that her conclusions can never be stated with 100% certainty, and that her conclusions should be analysed with other evidence.

[32] The second expert witness qualified to give an opinion in this trial was Mr. Menard, a Forensic Scientist Firearm and Tool Mark Examiner, also from the CFS. He was qualified to give an opinion on tool marks. Mr. Menard examined the same yellow Stanley Fat Max pry bar seized from the Ford Fusion driven by Mr. Edwards on October 17, 2013. He compared it to the safe from the Guelph Domino's Pizza break-in on October 9, 2013 where the safe had been pried open and severely damaged.

[33] Mr. Menard took micro-silicon casts of areas of the safe which appeared to have been damaged and had significant tool marks. He then compared them under a microscope to the Stanley pry bar. It was his opinion that the tool marks present on the safe were made by the pry bar. In his words, "…the possibility of the marking observed on the safe haven't been created from – or created by the use of a different tool other than this are so remote as be a practical impossibility." There were no significant disagreements of individual characteristics between the markings on the safe and the pry bar.

[34] Limitations to Mr. Menard's evidence were brought out in cross-examination. The tool, namely the pry bar, has the ability to alter its surface over use. Areas of disagreement between the compared items were not factored into the assessment, so long as he viewed sufficient agreement between them to draw his conclusion.

[35] The Defence relies on those limitations to argue that each of the limitations should afford the CFS expert witnesses no weight. With respect, I disagree. Each piece of forensic evidence has its own limitations. Dr. Lindsay only makes a class identification of the paint comparison, not an individual identification, and Mr. Menard does not assess dissimilarities in the compared objects. Even with these limitations in mind, it is the cumulative effect of both pieces of identification evidence which give considerable confidence to the identification of the pry bar found in the Ford Fusion on October 17, 2013 as being the one used in the Domino's Pizza break-in in Guelph.

Video Evidence

[36] The Crown lead security video evidence from within some of the places broken into. This related to the June 3, 2013 break-in at St. Louis Bar and Grill (Counts 3 and 4), where it appears that the culprit was crawling along the floor, at some point appeared to have some form of communication device. This video tape does not show the facial image of the culprit, or anything particularly distinguishing being worn by the culprit. The Subway Restaurant break-in on July 15, 2013 (Counts 6 and 7) was also captured on black and white video. There too the culprit crawled along the floor once in the restaurant, and wore a hooded shirt or sweatshirt which was, lighter than the colour of the video monitor on the cash desk. I cannot say that the shirt worn by the culprit was dark colour. A video recording from the break-in at Starbucks on September 10, 2013 was entered as a lettered exhibit at the trial but the Crown is not relying on it as part of its case. Video footage from the Pizza Pizza break-in on September 11, 2013 was entered as an exhibit at the trial. It shows the culprit crawling along the floor, wearing a dark hoodie-style sweatshirt.

[37] The Pizza Nova break-in on September 13, 2013 (Counts 24 and 25) was captured on video tape. The culprit crawled along the floor, wearing a dark coloured hoodie. Lastly, the October 9, 2013 break-in at Domino's Pizza on October 9, 2013 was recorded on video. The culprit used a yellow pry bar, and hooded clothing.

[38] Neither Accused called a defence.

Findings

[39] There are many individual charges in this case involving discrete events, and the Crown is not asking me to consider the similarities between the Counts as part of my reasoning. Therefore I will consider each break-in individually.

Counts 1 and 2: M&M Meat Shop, May 29 – 30, 2013

[40] The only evidence against Mr. Edwards in this break-in is his guilty plea from 2008 admitted as similar fact evidence. While this makes his involvement suspicious it is insufficient to prove that he is the culprit beyond a reasonable doubt. I acquit him of these counts.

Counts 3 and 4: St. Louis Bar and Grill, June 3, 2013

[41] The only evidence against Mr. Edwards on this charge is the video recording taken from inside the restaurant during the break-in. It does not identify Mr. Edwards, but only a culprit sliding along the floor using a two-way radio or other communication device. Mr. Edwards was indeed arrested with a two-way radio on October 17, 2013 but there is no evidence to particularize the type of device, or brand of what was used on June 3. There is insufficient evidence to convict him of these charges and he is therefore acquitted on these counts.

Counts 6 and 7: Subway Restaurant, July 15, 2013

[42] The Similar Fact evidence is admissible against Mr. Edwards on these charges. In addition there is a video tape of the culprit wearing a hooded shirt breaking into the cash area while on the floor. Mr. Edwards' involvement in this event is highly suspicious, but the evidence does not rise to the level of proof beyond a reasonable doubt and he is entitled to be acquitted of these charges.

Counts 12 and 13: Dairy Queen, St. Catharines, September 2, 2013

[43] GPS evidence puts the Ford Fusion within 475 metres of the Dairy Queen during the time of the break-in, and then returning to the vicinity of Mr. Kerr's apartment after the event. There is no direct evidence that either Mr. Kerr or Mr. Edwards were in the car at that time, although there is ample evidence that Mr. Edwards was using the car in the days before and after this break-in. Importantly, he was not the exclusive driver of the vehicle, since Ms. Lancelotte was the renter of the car. While suspicious, the evidence does not prove the identity of either Mr. Edwards or Mr. Kerr as being involved in the Dairy Queen beyond a reasonable doubt. They are therefore both acquitted of these charges.

Count 14: Beaver Creek Florist, September 4, 2013

[44] The only evidence against both accused in this case is the GPS tracking evidence, which has the Ford Fusion on Fairholme Drive, which is near the Beaver Creek Florist, at the approximate time when the break-in occurred. There is no direct evidence that either accused was in the car that morning, and Mr. Edwards was not the exclusive operator of the vehicle. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of this charge.

Counts 15 – 16: Little Caesars Pizza, September 9, 2013

[45] The only evidence against both accused is the GPS tracking data which had the Ford Fusion 250 metres away from the location of the restaurant during the time of the break-in. There is no evidence that either accused was in the vehicle at the time, and Mr. Edwards is not the exclusive driver of the car. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of these charges.

Count 17: Starbucks, September 10, 2013

[46] The only evidence against both accused is the GPS tracking data which had the Ford Fusion on Star Crescent in Aurora, which is near the Starbucks, between 4:10 a.m. and 4:41 a.m. on the morning of the break-in. The Fusion then travelled to the vicinity of 500 Dawes Road. There is no evidence that either accused was in the vehicle at the time, and Mr. Edwards is not the exclusive driver of the car. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of this charge.

Counts 18 – 19: Micatoni's and Domino's Pizza, September 10, 2013

[47] The only evidence against both accused in these charges is the GPS evidence, which puts the Ford Fusion stationed in the area of Ridge Road between 5:06 a.m. and 5:43 a.m. the Ford Fusion, which is a short distance from the scene of both break-ins. The Fusion then travelled to the vicinity of 500 Dawes Road. There is no evidence that either accused was in the vehicle at the time, and Mr. Edwards is not the exclusive driver of the car. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of these charges.

Counts 20 – 21: Pizza Pizza, September 11, 2013

[48] This restaurant was broken into sometime between 2:30 a.m. and 8:45 a.m. in the morning. The Ford Fusion was parked on Havenbrook Court in Vaughan from 3:55 a.m. to 5:03 a.m. This is near the Pizza Pizza. Mr. Edwards was surveilled in the Ford Fusion as late as 12:05 a.m. that morning, when it was in the vicinity of Mr. Kerr's residence. The video footage from the break-in has the culprit sliding across the floor wearing a dark hoodie. The Ford Fusion was tracked back to the vicinity of Mr. Kerr's residence at about 6:28 a.m. Mr. Edwards was seen in the Ford Fusion 3 hours and 50 minutes prior to that vehicle being parked near the scene of the Pizza Pizza break-in at the time of the break-in. There is no evidence that Mr. Kerr was in the vehicle at all that day. There is no evidence of Mr. Edwards being in or near the car in that 3 hours and 50 minutes. He is not the exclusive driver of the car. While the evidence is highly suspicious, it does not rise to the level of proof beyond a reasonable doubt, and both accused are entitled to acquittals.

Counts 22 – 23: Alden Coffee Shop, September 12, 2013

[49] The evidence in this break-in includes Mr. Edwards similar facts, including his break-in at the very same location several years earlier, in the same manner as the 2013 break-in. I have described this evidence more completely above. This break-in occurred sometime between 3:35 p.m. on September 11, and 6:10 a.m. on September 12, 2013. GPS tracking put the Ford Fusion in the area of Hood Avenue and Alden Road, Markham between 1:57 a.m. and 2:28 a.m. Mr. Edwards was one of two operators of the Ford Fusion at that time. The vehicle then travels to the vicinity of 500 Dawes Road. The sum of these pieces of evidence leaves no doubt in my mind that Mr. Edwards was the culprit. There is evidence of his unlawful entry into the very same place in the very same manner. This, coupled with the arrival of his car in the vicinity at the time of the break-in leaves no doubt in my mind that he was the culprit in 2013 who both broke in, and took the property. He is found guilty of both charges. The evidence against Mr. Kerr is highly suspicious insofar as he was seen with Mr. Edwards in that time frame, and Mr. Edwards travelled to the area of Mr. Kerr's residence after the break-in, but the proof against Mr. Kerr does not rise to the level of beyond a reasonable doubt. Mr. Kerr is entitled to be acquitted of these charges.

Counts 24 and 25: Pizza Nova, September 13, 2013

[50] This restaurant was broken into sometime between 1:00 a.m. and 9:00 a.m. on September 13, 2013. The Ford Fusion was parked in the area of Albert Roffey Crescent in Markham between 3:13 a.m. and 3:29 a.m. Those locations are near each other. The vehicle then travels to 500 Dawes Road. A video tape of the break-in has the culprit wearing a dark hooded sweatshirt which, while generally similar to the dark hooded sweatshirt found on Mr. Edwards on October 17, 2013 is sufficiently common to be of little value in making out identification. The culprit slides along the floor of the restaurant during the entry. There is no evidence that either accused was in the vehicle at the time, and Mr. Edwards is not the exclusive driver of the car. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of this charge.

Counts 26 and 27: Dairy Queen, September 18, 2013

[51] The Dairy Queen at 1420 Highway 2 in Courtice was broken into sometime between 11:37 p.m. the night before and 7:41 a.m. on September 18, 2013. The culprit smashed a bottom part of the glass door and cut a hole in the safe. The Ford Fusion was parked on Dale Park Drive, near 1420 Highway 2, from 4:28 a.m. and 6:17 a.m. that morning. The vehicle then travels to the vicinity of 500 Dawes Road. Mr. Edwards was seen by PC Marshall operating the Ford Fusion at 1:47 on September 18. Mr. Edwards was operating the car over 7 hours after it was in the vicinity of the break-in, and Mr. Edwards is not the exclusive driver of the car. There is insufficient proof to make out identity of either accused beyond a reasonable doubt. Both are entitled to be acquitted of this charge.

Counts 29 -30: A&W, October 17, 2013

[52] The Ford Fusion was followed by the police with the assistance of a GPS tracker travelling from Toronto to Simcoe in the dead of night on October 17, 2013. The car is located just after 3:00 a.m. very near the A&W, and left Simcoe only to be arrested a short time later. Mr. Kerr and Mr. Edwards were arrested in the car. There is only one conclusion which can be drawn from this evidence, which is that Mr. Kerr and Mr. Edwards travelled all the way to Simcoe for the purpose of breaking into the A&W restaurant, and left shortly afterwards. I can infer that the presence of Det. Bloxam on foot in the vicinity of the A + W at the time the Ford Fusion arrived there thwarted any further efforts to enter the restaurant, which had the drive-in window smashed. Because the offence was not complete both are convicted of Attempt Break and Enter.

[53] The items found in the Ford Fusion include various items, notably a pry bar, grinder flash light, ear muffs suitable for use with the grinder, gloves and a 2 way radio. All of these things found in the Ford Fusion that night have the physical characteristics that would enable them to be used or handled to facilitate a breaking or opening see R. v. Benischek (1963), 39 C.R. 285 (Ont.C.A.). The items were closely connected to both Mr. Kerr and Mr. Edward's joint venture to break into the A + W restaurant and there is no exculpatory explanation for their presence in the car that morning. Considering all of the evidence both accused are found guilty of Possession of Break-in instruments.

Counts 31 and 32: Domino's Pizza, October 9, 2014

[54] There is no GPS or surveillance evidence tying either accused to this event. The video tape shows the culprit using a yellow pry bar forcing open the safe while wearing a dark hoodie. The clothing identification is of limited assistance to me.

[55] As I found above, the pry bar found in the Ford Fusion on October 17, 2013 is part of a collection of break-in instruments. Mr. Kerr and Mr. Edwards were jointly in possession of those items. The pry bar was tied forensically to the break-in at Domino's Pizza in Guelph. Considering the evidence of Dr. Lindsay and Mr. Menard, I have no doubt that the pry bar found with Mr. Kerr and Mr. Edwards on October 17, 2013 was the very same pry bar used on the Domino's Pizza safe on October 9, 2013. Nonetheless, while Mr. Kerr and Mr. Edwards' possession of the instruments merely 8 days after the break in at Domino's Pizza is highly suspicious, after considerable reflection I have come to the conclusion that it would simply be unsafe to convict on these charges. The Crown has not proven these counts to the high standard of proof beyond a reasonable doubt.

Verdict

[56] In the result, Mr. Edwards is convicted of Counts 22, 23, 29, 30, and is acquitted of all other charges. Mr. Kerr is convicted of Counts 29 and 30, and acquitted of all other charges.

Released: June 18, 2015

Signed: "Justice David S. Rose"