Court File and Parties

Court File No.: 15-13215 Date: 2018-01-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Adam Ross Searay

Before: Justice Harris Bentley

Heard on: August 21-25, 30, 31, September 5 and 8, 2017

Reasons for Judgment: October 20, 2017, amended January 30, 2018

Counsel:

• Roger Dietrich, for the Crown
• Sia Pashang, for the accused Adam Ross Searay

Reasons for Judgment

HARRIS BENTLEY J.:

Charges

[1] Adam Searay is charged that on November 12, 2015, he did steal from Joshua Carreiro while armed with an offensive weapon, namely a handgun, contrary to section 344(1) of the Criminal Code of Canada, that he did use a firearm, namely a handgun, while committing an indictable offence under section 343(d) of the Criminal Code contrary to section 85(3) of the Criminal Code and that he did, with intent to commit an indictable offence, have his face masked by means of a shirt, contrary to section 351(2) of the Criminal Code.

[2] The defence concedes that all of the elements of the offences are made out except for the issue of identity. For clarity, the defence admits that an individual did steal from Joshua Carreiro while armed with an offensive weapon, namely a handgun, that the individual used a firearm, namely a handgun while committing robbery and that the individual had their face masked while committing a robbery.

[3] Although the defence admits that the individual had his face masked it did not admit that particular, that the mask was a shirt, as alleged in the indictment. In any case, I find, as set out below that the robber's face was masked with a shirt. If I am incorrect, in my view the words "by means of a shirt" are unnecessary detail. The surplusage rule is stated in Eugene G. Ewaschuk, Q.C., Criminal Pleadings and Practice in Canada (Toronto: Canada Law Book Limited, 1983), at pp. 222-223, as:

If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e., a non-necessary which need not be proved.

[4] An unnecessary allegation may be treated as surplusage if the essential elements of the offence are alleged and established. All of the elements of the offence are admitted except for identity. The Crown is not required to prove that the face covering was a shirt.

Facts

[5] On November 12, 2015, Jacques Chomiak parked his burgundy GMC pick-up truck, licence plate AE89001 at White Oaks Mall in London. He later discovered that the ignition was damaged and his vehicle was stolen at some point during the day.

[6] In the early afternoon on the same day, Joy Lewis attended the Scotiabank at 639 Southdale Road East in London to do some personal banking. When she arrived at the parking lot, she noticed two vehicles oddly parked at an angle blocking several parking spaces in front of the bank. One of the vehicles was a burgundy pick-up truck. As she parked her car further over, she noticed a male in the burgundy vehicle pull a hoodie up over his head. She entered the bank and waited to see a customer service representative. Kim-Ann Greidanus was in the bank along with other customers.

[7] In the bank, teller Joshua Carreiro was assisting a customer at wicket four as well as training Osvaldo Lopez who was standing nearby. Salma Omerovic was working at wicket 3 being supervised by Frances Regier. Abdallah Zebian was at the wicket to the right of Joshua Carreiro. All were assisting customers.

[8] At 2:35:33 p.m., the doors of the bank opened with a bang and a male (robber) entered yelling and swearing. A bank surveillance video clearly shows that he was wearing a dark hoodie with the hood up. His face was covered by white fabric with a space for his eyes. He was wearing blue jeans with a rip on the right knee and light brown running shoes. He had on black gloves with stark white markings on the knuckles and was carrying a handgun in his left hand.

[9] Various remarks were attributed to the robber with the essence being that he told everyone in the bank to get down and that he did not wish to kill anybody that day while holding a weapon in his left hand. Everybody got down onto the floor.

[10] The robber then transferred the weapon to his left hand and leapt up onto the counter in front of wicket two and demanded money. Josh Carreiro, who had locked himself out of his own wicket earlier, picked up Selma Omerovic's keys and got up. He took money out of Ms. Omerovic's wicket. He then moved onto another wicket. The robber wanted hundreds and fifties. He did not want dye packs.

[11] After taking the money from the second wicket, the robber jumped down off the counter and ran out the door at 2:36:30, less than a minute after arriving. He ran by Martha Pozeg, who had begun to enter the bank earlier but went back out when she saw what was occurring. He also ran by Jonathan Brett who had been warned by Ms. Pozeg not to go into the bank.

[12] Both Ms. Pozeg and Mr. Brett observed the robber to enter into the passenger seat of a truck in the parking lot and Mr. Brett was able to recall most of the licence number which corresponded with Mr. Chomiak's burgundy pick-up truck. The truck left the parking lot heading south onto Montgomery Road at a high rate of speed.

[13] Ian Gifford was walking north on Montgomery Road. He heard screeching tires and was then almost run over by a burgundy pick-up truck as it turned left into a driveway south of Farm Boy. The truck stopped and he observed a driver and a passenger who appeared to be having a "meltdown".

[14] Peter Wdowiak, an employee at Farm Boy, was having a coffee in his car in the parking lot outside the business. He observed a red truck zoom into a parking lot almost striking people including a child. The truck pulled into a space near Five Guys Burgers and Fries, a diner near Wellington Road. The driver exited and, grabbing a bag from the truck, walked north towards Earl's with the bag in his hand.

[15] Officer Walter Lebacher later used a dog to track the person. The dog was trained to follow the freshest scent. He tracked from the driver's side of the truck along the sidewalk on Wellington northbound. The dog then crossed Wellington Road and continued northbound. At the corner of Wellington Road and Montgomery Gate there was a bus stop with a green garbage bin. Officer Lebacher located a number of items in the bin.

[16] Officer Lebacher had the dog continue tracking northbound to a Kentucky Fried Chicken outlet (KFC). At the outlet, police had arrived and were arresting the co-accused, Kenneth Rowe. Sierra Bedard, a KFC employee testified that Mr. Rowe had attended the KFC and asked her to call a taxi for him approximately 6 minutes before he was arrested.

[17] Officer Robert Kerr located a devil mask and two black gloves in Mr. Rowe's pockets. The defence conceded that these items were not worn by the robber during the robbery of the Scotiabank.

[18] Officer Jerry Rozic seized a pair of light brown shoes, a screwdriver, jeans, a black hoodie and a white t-shirt from the bin at the bus stop.

[19] Detective Scott Chantler located a handgun under a garbage bin behind Don Brown's Appliances which was beside the KFC where Mr. Rowe was arrested.

[20] The handgun, screwdriver, hoodie and t-shirt were sent to the Centre for Forensic Sciences (CFS) for testing. Although there were at least three contributors for the handgun and hoodie and at least four for the handle of the screwdriver, there was no DNA profile suitable for comparison.

[21] Three swabs were taken from the t-shirt. Profile 1, that of a female, was discovered on the areas inside the front and back neckline of the t-shirt. Profile 2 was located on the inside front centre below the neckline of the t-shirt. The profiles were sent to the DNA Databank and there was a hit with respect to Profile 2 being the accused. A warrant was sought and a blood sample was provided by Mr. Searay. The CFS determined that the accused could not be excluded as the source of Profile 2. The odds were 1 in 800 quadrillion that the DNA profile came from someone else in Ontario.

[22] Joseph Cooke, a drug dealer who supplied the accused with drugs, testified that he had had a conversation with the accused on one occasion within the week before the robbery, looking at Google Maps and discussing escape routes for a robbery at Scotia Bank. He also testified that he spoke with the accused immediately after the robbery when the accused asked if there was any "heat". Mr. Cooke also met with Mr. Searay a few days afterwards and was told that he got away with the robbery. Mr. Cooke saw that he had new clothing as well as about $1500 in crisp new bills.

[23] Kenneth Rowe testified that he was the driver during the robbery. His evidence matched that of many witnesses in terms of where he went after the robbery with the truck and the items found in the bus stop garbage bin and under the dumpster. Mr. Rowe testified that he committed the robbery with a "black guy" who he had only met briefly, and not with Mr. Searay. He also testified that after being picked up in the stolen pick-up truck, they stopped at the trap (drug) house at 695 King Street and picked up clothes for the robber to wear during the robbery. He said that the accused was in and out of the trap house.

[24] Mr. Searay did not testify, neither did he call any evidence in his own defence.

Descriptions Provided by Various Witnesses

[25] Descriptions of the robber were provided by the various witnesses, being tellers or customers. I find that all of the witnesses were doing their best to recall a very traumatic incident in their lives and were all credible. Some of the witnesses got the colour of the clothing wrong as can be seen in the video or were not accurate about the height of the robber but overall, I found their evidence to be generally accurate.

Gender

[26] The descriptions provided by the various witnesses all included that the robber was a male due mostly to his voice and I accept that he was.

Accent

[27] The witnesses indicated that the robber did not have an accent and I accept that he did not.

Race

[28] The witnesses all described the robber as white except for Joshua Carreiro who said that his skin was between Spanish and Native and perhaps Indian colour. Almost all referred to the small amount of skin showing around the eyes. One witness referred to seeing the robber's hands but we know that this was not possible as they were gloved.

[29] Witness Ian Gifford testified that he was cut off by the burgundy truck as he was walking north on Montgomery. He was accurate with his description of the truck. He viewed both the driver and passenger. I find that the passenger was the robber given the evidence given by the witnesses of the robber entering the passenger side of the vehicle, fleeing north on Montgomery Drive and entering the parking lot all within a short period of time. I also take into account Mr. Rowe's evidence that there were only the driver and the robber in the truck. Mr. Gifford viewed the stopped truck from about 20 feet away at a time when the driver and the robber were not masked. He said that they were both white. He observed the passenger in profile and the driver from the back. He told police that he could not give any other identifying features other than race and hair. I find that he was credible and reliable. He chose not to guess at other features but was confident of the two features he described and was not moved on cross-examination.

[30] Kenneth Rowe said that the robber was light-skinned black. I will discuss his evidence below.

[31] The Crown asked me to view the surveillance video to make a determination as to race which is different in my view from asking the court to identify the accused as was commented upon in the case of R. v. Nikolovski, (1994), 92 C.C.C.(3d) 37, referred to by defence counsel in his submissions. In any event, I was unable to determine the race of the robber. The most that I could say from the surveillance video is that the robber did not have markedly dark skin.

[32] Given all of the evidence on race, I find that the robber was Caucasian. I rely in particular upon the evidence of witness Ian Gifford.

Height

[33] The range of height testified to by various witnesses was 5'6" to 5'11" with the following being the testimony of the various witnesses; 5'9"-5'10", 5'8", 5'10" to 5'11" – Regier's best guess, 5'8" to 5'9", 5'7", 5'6" to 5'7" – Brett said the robber was hunched over. Given the qualifications on the evidence at each end of the range, I find that the robber was between 5'7" and 5'10".

Weight

[34] The range of weight testified to by various witnesses was 160 to 195 pounds.

Build

[35] The descriptions of build varied from thin to heavy build and are generally unhelpful. Many witnesses mentioned that the robber was wearing a bulky sweatshirt which made it difficult to see the build. This is borne out in the video.

Age

[36] Salma Omerovic, a teller, described the robber as in his 20s. Joy Lewis testified that he was 20 – 30, not very old. Ian Gifford said that he was 24 or 25. I accept that the robber was in his mid-20s again relying mostly on the testimony of Ian Gifford.

Hair

[37] Ian Gifford, who was the only one who saw the passenger without the hood and face-covering, testified that the robber had short dark hair and I accept that he did for the reasons set out above.

Accused

[38] Officer Dan O'Reilly testified that when Adam Searay was arrested, he was 25, 5'8", 170 pounds, medium build, had short dark hair, and no accent. I have found that the robber was male, Caucasian, 5'7" to 5'10", 160 to 195 pounds, in his mid-twenties, had short dark hair and had no accent.

[39] The descriptions generally match Mr. Searay's description. The descriptive evidence does not rule out Mr. Searay.

Evidence of Joseph Cooke

Testimony regarding Adam Searay

[40] Joseph Cooke testified that, in 2015, he was a drug dealer and was involved with a group of four others, an inner circle including Mr. Searay and one who he called the commander-in-chief. He was addicted to hydromorphine. He sold drugs to Mr. Searay. At the time he testified, Mr. Cooke had made changes to his life and had been pill-free for a number of months as a result of being on the methadone program.

[41] At the time of the robbery in November 2015, Mr. Cooke was hiding from police, living in a basement apartment in a "crack shack" at 693 King Street. He sublet it and paid his rent with drugs. He had warrants out for his arrest and only emerged from the basement at night.

[42] Mr. Searay, he testified, had built up a debt to Mr. Cooke. He spoke to Mr. Cooke about doing a robbery and showed Mr. Cooke his phone with Google Maps on it, asking him about various escape routes with respect to a Scotiabank at Hyde Park and Fanshawe Road. Mr. Cooke thought that Mr. Searay was telling him this in order that Mr. Cooke continue to "spot out" or supply him with drugs without immediate payment.

[43] The day after he had heard of a robbery occurring, he received a telephone call from Mr. Searay asking him if there was any "heat". Mr. Cooke told him that officers had knocked on his door to ask for him by name. Mr. Cooke received payment and a tip from the commander-in-chief of the group on behalf of Mr. Searay to cover the debt owed.

[44] Mr. Cooke saw Mr. Searay next a few days later who told him that he went to New York state and Niagara Falls. He saw that Mr. Searay had new clothing and shoes and that he had something less than $1500 in fresh 20s, 50s and 100s. Mr. Searay told him that he "got away with it.", it being the bank robbery. He did not go to police at that time with this information.

Statement given to Police on December 3, 2015

[45] Mr. Cooke was arrested on his outstanding warrants on December 3, 2015. At that time, he gave a sworn statement to police. He had two motivations. First, he wanted to use the information to try to get out of custody. He was worried about going to jail as he had been labeled a rat by Mr. Searay's commander-in-chief and jail would be unsafe for him. He testified that police "wasted no time in telling me that they could not make any promises" but he continued to make the statement.

Attitude towards Mr. Searay and the Inner Circle

[46] Mr. Cooke's second and main motivation for giving the statement was that he had been betrayed by the group and that he wanted "to kick the commander-in-chief's dog when he's down". Mr. Searay was the dog. The commander-in-chief was pointed out sitting in the court room with other supporters of Mr. Searay during Mr. Cooke's testimony.

[47] Mr. Cooke told the court that in the week before December 3, 2015, two men had broken down his door at his apartment at 693 King Street with the intention of robbing him. He said that he "could not believe the betrayal when that person stuck their little wormy face through my doorway". He had called fire trucks before he realized that the two men were known to him, being part of the inner circle. As a result, he was labelled a rat and was cast out of his original close-knit group. Mr. Cooke was very much affected by what he viewed as a betrayal by people he thought were his friends. He was also concerned for his safety as a result of being out of the group which he described as violent.

[48] Mr. Cooke said in cross-examination, "Yeah, somebody did something to me and I'm doing something directly back to try and even out the playing field. It just so happens that it contained a lot of truth."

[49] When Mr. Cooke gave his statement to police, he directed his statements to Mr. Searay himself and pointed his finger at the camera. It was "very, very personal" for him. He was "on the outside looking in". He said, "You're going down sooner or later Adam."

[50] Mr. Cooke made other statements demonstrating his attitude towards the people observing the trial such as,

A. I only came forward after my door got kicked in...

Q. Right.

A. ...I had been labelled a rat for something I never asked for to happen...

Q. Right.

A. ...you know what I mean? So, that puts me in a whole new position of life...

Q. Right.

A. ...now I'm a rat, you know.

Q. Right.

A. So, I'm the kind of person, you're gonna call me something? Let's get it on.

Q. Let's get it on.

A. I'll show you how to be a rat. I'll be the biggest King Rat you ever seen.

[51] And later, in response to a question about Mr. Searay being involved with Mr. Cooke's girlfriend,

You do know his commander-in-chief is the mother of this kid, right?

Mr. Cooke's Criminal Record

[52] Mr. Cooke has a criminal record with 35 convictions, eight of which are for crimes of dishonesty including a conviction for attempting to obstruct justice in 2009. There are two drug charges, one possession of a weapon and the remainder are failures to comply with court orders.

Credibility

[53] Mr. Cooke said that Mr. Searay told him that there was a stolen truck parked across the road on the evening of the robbery. We know that the stolen truck was not stolen until the day of the robbery. We know that it was left at Five Guys diner and could not have been at the house either the day before or the day of the robbery after it occurred.

[54] Mr. Cooke said that Mr. Searay had come to the house either the day of the robbery or the day after. He asked to leave a duffle bag at Mr. Cooke's apartment. He "listed" the things in it to be clothing, shoes, a mask and a firearm. The evidence shows that the gun was located under the dumpster on the day of the robbery and the clothing and shoes used were found that day in the green garbage bin at the bus stop. None of the items could have been at the apartment.

[55] Mr. Cooke had also said that Mr. Searay did not come to him until after his trip to New York and Niagara Falls so this evidence is internally inconsistent.

[56] Mr. Cooke testified that he was shown a Google Map of the Scotiabank at Fanshawe Park Road. In his statement to police, the officer asked, referring to the Fanshawe Road bank, "So, that's the one we're looking at." Mr. Cooke said, "Yes, that's the one that was being seen. That's what I seen." The officer replied, "Yeah", and Mr. Cooke said, "And then I seen it on the news that that's the one that got robbed . I was like, oh, shit, he did it." Mr. Cooke recalled saying this in his statement. It is clear that during the giving of his statement, Mr. Cooke thought that the bank that was robbed was the Scotiabank at Fanshawe Park Road and not the actual Scotiabank robbed on Southdale Road. This misunderstanding may have led him to make the statement about being shown the Google map showing that bank. It is concerning.

[57] There was some confusion about whether Mr. Cooke had discussed the robbery with Mr. Searay. In chief he said,

Q. Did he tell you anything else?

A. Of course.

Q. What did he say?

A. He told me he got away with it.

Q. He got away with it?

A. He told me - he showed me all the spoils, all his goods. He showed me all his new gear, mm-hmm.

Q. All right. So, let me just - you've given us some information there...

A. Yeah.

Q. ...you said, "Got away with it." Did he say what "it" was?

A. Yeah.

Q. What did he say?

A. Bank robbery.

In cross-examination, the following was put to him,

Q. You never talked to Adam about what went down at the bank, did you?

A. Not at any point in time.

[58] And

Q. Okay. But you didn't talk to Adam directly?

A. No.

Q. Okay. He never told you anything about a robbery?

A. No.

Q. The only time anything came out of his mouth and, you, you know, you've used that term a lot that, "He said it to me; he said this and he said that." The only time something came out of his mouth about linking to a robbery, was when he asked you to view and help him with Google images, is that right?

A. That's correct.

Q. All right. And this was sometime obviously before the date of the robbery?

A. Yes.

[59] And

Q. Right. And you don't know for certain that Adam was actually there at the scene of the robbery that day?

A. No, I don't know for certain...

Q. You don't know.

A. ...other than what he tells me, no. He could be making it up, but I don't see why someone would lie to me about that.

In re-examination, Mr. Cooke had the following exchange with the Crown,

Q. Okay. Because what you answered my friend was, the only time that you spoke about the robbery was when you were going through the - the messages - going through the - the Google Maps, do you recall?

A. No, I'm talking about after he came back...

Q. Okay. And what...

A. ...to London...

Q. ..what I want to ask you...

A. ...and we're sitting together...

Q. Okay.

A. ...in my room after he came back.

Q. And when he came back, did he say anything to you about doing the robbery, when you were in the room with the new merchandise?

A. Other than where he's been. He's been in Niagara Falls after the fact...

Q. Yeah.

A. ...and what he did to try and stay cool in the hours following it...

Q. Right.

A. ...that's it.

Q. Okay. The last question then is: Did he say where he got the money from? Because that's what I'd asked you this morning.

A. Yeah, bank.

[60] For many reasons, I am concerned about Mr. Cooke's evidence, in part, as a result of his animus towards the inner circle generally and towards Mr. Searay in particular. His anger comes through clearly both in his police statement given December 3, 2015 and while he testified at trial August 25, 2017. I am also concerned that he gave the statement while he was in custody with one of his motivations being to gain the advantage of being released from custody. His criminal record is concerning, particularly the conviction for attempted obstruction of justice.

[61] I am mindful of Mr. Cooke's accounts of the pick-up truck being parked at the apartment and the duffle bag being brought back to the apartment after the robbery which are clearly incorrect. Mr. Cooke indicated that he was only telling the court what was told to him by Mr. Searay. It makes no sense that Mr. Searay would make these untrue statements about the truck and the duffle bag. The fact that Mr. Cooke made these comments did lend credence to the defence theory that Mr. Cooke heard about the robbery from the people at the apartment and from the news and then made up details to incriminate Mr. Searay. Even if these comments were simply embroidery on information Mr. Cooke actually had as opposed to complete lies, I have no way of knowing where the truth begins or ends.

[62] Mr. Cooke's evidence should be considered with the greatest care and caution. The Supreme Court of Canada has recognised the need to approach the evidence of unsavoury witnesses with caution so as not to lead to a miscarriage of justice. R. v. Khela (2009), 2009 SCC 4, 238 C.C.C. (3d) 489 (S.C.C.)

[63] I may rely upon Mr. Cooke's evidence even if it is not confirmed by another witness or other evidence, but it would be dangerous for me to do so. I look for some confirmation of his evidence before relying upon it. The corroborative, or confirming, evidence must be independent and material. In other words, it must not be tainted by connection to the Vetrovec witness. The evidence must confirm the accuracy of relevant aspects of the suspect evidence. The issue is whether the confirmatory evidence is capable of providing comfort to the conclusion that the evidence of the suspect witness implicating the accused is accurate.

R. v. Khela (2009), 2009 SCC 4, 238 C.C.C. (3d) 489 (S.C.C.)

R. v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.)

[64] In this case the DNA evidence is a piece of confirmatory evidence which shows a connection between Mr. Searay and the white t-shirt found in the green garbage bin with other items used during the robbery. Can this evidence give me comfort that Mr. Cooke can be trusted when he says that Mr. Searay told him and showed him evidence of his involvement in the robbery?

[65] Another piece of evidence is the close connection between Mr. Rowe who has pled guilty to these offences and Mr. Searay. Mr. Rowe resided at the trap house for two weeks before the robbery. They are friends and "have each other's backs". They trust each other.

[66] Finally, I have found that the description of the robber is generally consistent with Mr. Searay's features.

[67] Although these confirmatory elements exist, I am not comforted sufficiently to accept Mr. Cooke's evidence regarding the discussions he had with Mr. Searay. The confirmatory evidence mentioned above does not make up for the substantial credibility deficits. Coupled with my concerns about motivation and his criminal convictions, I reject Mr. Cooke's evidence with respect to Mr. Searay telling him about the robbery.

[68] I do accept that Mr. Cooke was a member of a close-knit group including Mr. Searay, Mr. Rowe and the commander-in-chief. I accept that there was a falling out and that Mr. Cooke found himself on the outside and felt betrayed and in danger. I accept that the original members of the group were antagonistic towards Mr. Cooke.

Evidence of Kenneth Rowe

Relationships with Mr. Searay and Mr. Cooke

[69] Kenneth Rowe was the co-accused of Adam Searay. He pled guilty to conspiracy to commit an indictable offence being armed robbery and possession of a firearm amongst other charges. He testified that he did not wish to appear at court and that if he had not been brought in by way of a judge's order, he would not have attended.

[70] Mr. Rowe testified that he had known Mr. Searay for five years, that he considered him a trusted good friend, someone that had his back. Mr. Rowe said that he had Mr. Searay's back as well. Mr. Rowe was in jail with Mr. Searay on the date he testified.

[71] Mr. Rowe described Mr. Cooke as someone he did not have a good relationship with because Mr. Cooke was selfish, "wants for himself and himself only", didn't contribute to everybody else and thought he was "better than the rest of us". As an afterthought, Mr. Rowe added that Mr. Cooke was a liar.

Evidence

[72] Mr. Rowe testified that on November 12, 2015, he woke up and went for a walk. He lived at a "trap house" at 695 King Street in London where people went in and out including Mr. Searay. Mr. Cooke also attended at the unit. I conclude that 693 King Street referred to by Mr. Cooke and 695 King Street are connected and part of the "trap house" or crack house described by each.

[73] Mr. Rowe testified that while he was out walking, a black male (later described as a light-skinned black male) pulled up beside him in a burgundy truck with the ignition ripped out. The male asked him if he wanted to make some quick money and that he had a moving job. Mr. Rowe had only met the male shortly beforehand.

[74] Mr. Rowe got into the truck and later said he was driving the truck and drove back to his place, the "trap house" at 695 King Street in London and after that he went for a drive with the male. He stopped at a parking lot on Southdale where there was a Scotiabank. The other male got out of the truck pulling down a hat over his face. At that point Mr. Rowe knew that he was probably going to "go in there and stick up a bank". He was in the bank for a minute.

[75] Afterwards, the male got back into the truck and said, "Go". They drove down the road to another parking lot. No-one else was in the truck. The male took off some clothes that they got from the trap house and left them on the seat. Mr. Rowe did not remember what the clothing was. There was a gun that looked like a "Cowboys and Indians" gun.

[76] Mr. Rowe and the male went their separate ways and Mr. Rowe "ditched" the truck in the parking lot. The male left before the truck was ditched in the parking lot. Mr. Rowe took the clothing, which was originally from the trap house, worn by the male and removed in the truck and threw it into a yellow "dumpster" at the bus stop on Wellington Road near the KFC. Mr. Rowe stashed the gun underneath another dumpster right outside the KFC.

[77] Mr. Rowe said that he was providing further elaboration about who the male was in addition to the information he provided police on November 12, 2015.

The Criminal Record

[78] Mr. Rowe has a criminal record with 31 convictions, 3 being for crimes of dishonesty, a number of offences of violence, weapons offences, one drug charge and numerous failures to comply with court orders.

[79] I am concerned about Mr. Rowe's evidence for a number of reasons. He is clearly a close friend of Mr. Searay's and an enemy of Mr. Cooke's. He has an extensive criminal record including crimes of dishonesty. His evidence is full of inconsistencies and statements that are clearly untrue.

Credibility Concerns

[80] The story Mr. Rowe tells about the meeting with the male makes no sense. Why would a person steal a truck, pick up a random accomplice who knew nothing about the plan and then go to a house to pick up clothes before robbing the bank? How would the black or light skinned black man, described by Mr. Rowe as "a buddy of mine that I'd just met" and "I just met 'im , like, that week", know about clothes being available at the trap house to be picked up? It makes no sense.

[81] Mr. Rowe said that he was told about a moving job by the male and only knew that there would be a robbery when the other male pulled his hat down outside the bank. Given that he knew the truck ignition was tampered with which he would have known the minute he was in the driver's seat and given that Mr. Rowe was arrested with a mask and gloves, he clearly knew that he would be doing something illegal. He lied to the court.

[82] Also, we can also see from the bank surveillance that the robber did not pull down a hat over his face. His face was covered with fabric. It is telling that Mr. Rowe deliberately lied about the face covering, the very piece of evidence which carries Mr. Searay's DNA.

[83] The witness' evidence about getting the clothes at the trap house is contrived. He lost no opportunity to add it and to include information to make the case stronger that clothes were being exchanged at the trap house and those clothes were picked up and used in the robbery. He would insert it into his answers when it was not being asked about. In contrast, he could not remember which clothes the robber wore. For example, he testified in chief,

Q. Let me ask you this then: So you're driving, this individual's in the passenger seat, anyone else there?

A. No.

Q. And while you're driving, does this individual do anything?

A. He took off some clothes that we got from the trap house .

Q. Okay. What did he do with those clothes?

A. Left them on the seat.

THE COURT: Sorry, he took off the clothes he got from?

MR. DIETRICH: The trap house.

A. The trap house that we stopped at before .

THE COURT: Oh, all right. Thank you.

MR. DIETRICH: Q. Do you recall what that clothing was?

A. I don't.

[84] And in chief while discussing what happened to the clothing after the robbery,

Q. All right. And do you know or do you recall why you did that? Why did you dump the clothing?

A. 'Cause I didn't wanna carry it.

Q. Okay. And the clothing that you had, is that the clothing that came from this person that went into the bank?

A. No, it was the clothing that we got from the trap house .

Q. Okay. But the clothing itself, though, was it on the person that went into the bank?

A. No, it was in the bag.

[85] And in cross-examination discussing the drug house:

Q. All right. Now, you indicated that you live in a, is that a trap house then?

A. Yes.

Q. Okay. And if I'm to believe that a trap house is a house that...

A. Where a lot of people come to to buy or sell drugs.

Q. Okay. And a lot of people reside in that...

A. Yes.

Q. ...apartment unit?

A. It's a lot of people that bring stuff there, leave stuff there, bring - like, drop things off, sell dope, pick up dope...

Q. Okay.

A. ... change clothes .

Q. Okay.

[86] Mr. Rowe's job was to make sure that the court knew that the clothes worn during the robbery had been obtained from the "trap house", a place that Mr. Searay frequented. This information would weaken or explain the fact that Mr. Searay's DNA was found on the white t-shirt.

[87] An unsavoury witness called by the Crown whose testimony in part supports the accused's defence is a mixed witness. The Vetrovec warning should apply to the inculpatory portions of the witness's testimony which are dangerous to rely upon without confirmatory evidence. Exculpatory evidence is explicitly excluded from the Vetrovic concern and I must simply determine whether it leads to a reasonable doubt.

R. v. Rowe, 2011 ONCA 753, [2011] O.J. No. 5382 (Ont. C.A.).

[88] Mr. Rowe's evidence about the black man and the clothes from the trap house are clearly exculpatory. Because of my concerns about Mr. Rowe's credibility as set out above, his lengthy criminal record with convictions for crimes of dishonesty and his partiality towards Mr. Searay, I do not accept parts of his evidence. Rather than the unbelievable story that he was randomly picked up by someone he had just met in order to commit a bank robbery, I find that that Mr. Rowe was involved in stealing the truck. When asked about the state of the truck's ignition, he spoke about it being ripped out, tampered with and then he said, "It was a piece of shit truck. I shouldn't be able to do that."

[89] I accept that Mr. Rowe was involved in the robbery and was in the burgundy pick-up truck.

[90] I find that after the robbery, Mr. Rowe drove the truck south on Montgomery to a driveway. This is confirmed by witnesses who were in the bank. I find that he turned into the driveway and almost hit witness Ian Gifford. Mr. Gifford confirms his evidence and is able to describe the two people in the truck. I accept that Mr. Rowe then "ditched the truck" in the parking lot and then made his way to the KFC on Wellington Road. This evidence is confirmed by witness Peter Wdowiak and Officer Lebacher with the tracking dog. We know that Mr. Rowe was arrested at the KFC.

[91] I accept that the clothing found in the garbage bin on Wellington Road at the bus stop was used during the robbery. This is confirmed by the security surveillance.

[92] I do not accept any of the evidence regarding being picked up by a relative stranger in the pick-up truck nor any of the evidence about picking up clothes at the "trap house".

[93] I do not accept the description of the person who committed the robbery as black or light-skinned black. This description was not given during Mr. Rowe's statement to police. I have determined as set out above that the robber was Caucasian.

DNA Evidence

[94] The revolver found under the dumpster, the sweat shirt, the white t-shirt and the screwdriver found in the garbage bin at the bus stop were sent to the CFS for DNA testing. The revolver had at least three contributors of DNA, but none were suitable for comparison. The sweatshirt had at least three contributors of DNA but none were suitable for comparison. The screwdriver had at least four contributors of DNA, but none were suitable for comparison.

[95] Three areas of the white t-shirt were examined. On the areas swabbed from the inside front and back of the neckline, there were at least three contributors with one major profile (Profile 1) belonging to a female. Similarly, a swab of the inside back centre below the neckline of the t-shirt indicated at least three contributors with one female major profile being Profile 1.

[96] The final area of the t-shirt swabbed was the inside front centre below the neckline. There were at least two contributors, one being the female Profile 1 and the other being a male co-major – Profile 2. I accept the evidence of the Christian Taylor, a forensic scientist from the Centre for Forensic Sciences (CFS) who was qualified as an expert able to give opinion evidence in the examination and interpretation of bodily substances and DNA. He testified that that Mr. Searay's DNA was on the t-shirt at this location with a random match probability of 1 in 800 quadrillion.

[97] Mr. Taylor testified that there were limitations with respect to the DNA analysis as follows:

a. It is not possible to determine the mechanism or how DNA was deposited, whether it was deposited directly or by secondary transfer,

b. It is generally not possible to determine the source of the DNA unless there is staining,

c. It is not possible to determine if the contact was brief or extended,

d. It is not possible to determine when the DNA was deposited, and

e. If other parts of the shirt were examined it might reveal other DNA.

[98] In considering various hypotheticals Mr. Taylor testified that DNA could be deposited if the shirt was over the face of the robber and saliva was deposited, if the shirt was around the mouth (by saliva or skin cells), if the person was wearing the shirt and sweating and if they were simply wearing it and it touched their skin.

[99] I have reviewed the video surveillance of the robbery, particularly clip one of the inner doors of the bank. In it, at 2:35:35, the robber is seen wearing white fabric over his face. I find that this fabric is similar to that of the white t-shirt found in the bin at the bus stop. The fabric is fine enough that the nose can clearly be seen and likely the mouth. If there is a problem with pixilation in that area, in my view it simply enhances the line of the mouth. It is in the area where one would expect the mouth to be found. The fabric on the robber's face above and below the eyes is hemmed. I recognize, as indicated by defence that any square of fabric can be manipulated into a shape. What makes me think that this is hemmed is that the hem is regular and consistent even when it is curved which would be difficult to achieve with a piece of fabric. The robber's nose and mouth is centred on either the front middle or back middle of the t-shirt neck. If the t-shirt were at any other angle, the sleeves of the t-shirt would show and they do not.

[100] I have examined Exhibit #9 being the white t-shirt found in the garbage bin at the bus stop. The fabric is soft which could allow the shape of facial features to be seen. The area around the neck of the shirt is hemmed and is slightly wider than the hem on the bottom of the shirt. The depiction of the covering of the face in the photograph of the robber is consistent with this shirt being worn with half of the neck area of the t-shirt below the eyes, the other half above and the remaining fabric of the shirt held back in some fashion behind the hood that covers the back of the robber's head. The remaining fabric at the front covers the rest of the face and the neck of the robber. I look to the items found in the bin at the bus top. All of the other items found were used in the robbery, the shoes, jeans and hoodie are all readily seen in the video. The screwdriver would have been used to start the truck when the ignition was punched out. This leaves the t-shirt. There was no other use for the white t-shirt as the large hoodie covered the upper torso of the robber. As well, there was nothing else in the bin which might have been used to cover the face.

[101] Consequently, I find that the white t-shirt found in the bin at the bus stop was worn by the robber during the course of the robbery to mask his face.

[102] Mr. Searay's DNA was located in the area where the robber's nose and mouth were located if the t-shirt were positioned with the front part of the neck below the robber's eyes.

[103] We know that the robber was a male as testified to by all of the eye-witnesses. Consequently, the female DNA being Profile 1 on the shirt is excluded as belonging to the robber.

The Onus and Standard of Proof

[104] Any person charged with a criminal offence is presumed to be innocent until the Crown has proven beyond a reasonable doubt that she or he committed the offence with which that person is charged. The onus of proof, as regards proving guilt, never switches from the Crown to the accused. In deciding whether the Crown has proved its case to the criminal standard, I must consider the whole of the evidence and I may only convict Mr. Searay if I am satisfied that the Crown has established his guilt beyond a reasonable doubt.

[105] In this case, given that the Crown's case is circumstantial, Mr. Searay can only be convicted if the court is "satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty". R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R 42 at para. 33.

Analysis

[106] The Crown argues that this case is similar to R. v. Ibrahim, 2014 ONCA 157. In that case, a balaclava and handgun were recovered shortly after a robbery with the DNA of the accused being the major contributor amongst multiple contributors. At para. 11, the court found that

The only reasonable inference available on the evidence was that the appellant was the masked assailant who robbed the Bank teller while pointing an imitation firearm (the toy gun) at her.

[107] On appeal, the Ontario Court of Appeal found that the court's verdict was not unreasonable. The court found the only reasonable inference available was that the accused wore the balaclava during the robbery. At para. 51, the court stated:

Moreover, there were no reasonable inferences available on the evidence that were inconsistent with the appellant's guilt. For example, the suggestion that the appellant may have worn the recovered balaclava and handled the toy gun at some other time and on another occasion is entirely speculative.

[108] In this case, Mr. Rowe and Mr. Cooke have testified that Mr. Searay attended frequently at the drug house, sometimes sleeping over. Mr. Rowe testified that he obtained a bag of clothing from the house to use in the robbery but I have rejected his evidence on this point. The expert from CFS testified that DNA can be deposited on an item in many ways, including secondary transfer, meaning that Mr. Searay's DNA could have transferred to another object or person and that person or object could have touched the t-shirt. However, having rejected Mr. Rowe's testimony about the origin of the clothing, there is no evidence that is before the court putting Mr. Searay in proximity with the shirt or with people who were in proximity to the shirt, except perhaps for Mr. Rowe. The only possible other inference would be that Mr. Rowe had Mr. Searay's DNA on him when he touched the t-shirt and by coincidence, he deposited it in the area where the robber's mouth and nose were. That is a fanciful and speculative inference.

[109] The defence seeks to distinguish Ibrahim because there were at least 2 contributors of DNA on the area below the centre front neckline of the t-shirt. As one of these is a female contributor, that argument is not persuasive. There were other minor contributors on other areas of the shirt which were not able to be analyzed. The defence also argues that the position of the DNA on the shirt suggests someone wearing the shirt in the normal manner. I disagree as set out above.

[110] The Crown also relies upon the case of R. v Mufata, 2015 ONCA 50. In that case, DNA was located on a pop bottle in a bathroom stall in which the victim had seen a bald black male looking at her. The evidence was that the person whose DNA it was was the last one to drink out of the bottle. There were no other contributors of DNA. The court held that there were no other inferences that were not fanciful or speculative, unlikely and totally lacking in evidentiary support.

[111] The defence argues that in Mufata, there was only one source of DNA and a description of race which he argues is not available here. As set out above, we do have a description as to race along with a number of other descriptors. We have DNA found in the exact spot where the nose and mouth of the robber was likely placed in the t-shirt, and we have a have a connection between Mr. Rowe, the admitted driver, and Mr. Searay.

[112] The defence relies upon the case of R. v. Kerr, 2014 ONCA 157. In that case, clothing was discarded after a robbery and the accused's DNA was located on a cap and sweatshirt. The court found that the evidence was not supportive of exclusive use as DNA of other individual males was located on the items. The court held that there was no way to exclude the possibility that Mr. Kerr had simply worn the clothing at other times, and that another male was the perpetrator.

[113] In Kerr, Justice Andre, citing R. v. Wong, 2011 ONCA 815, stated that there must be other evidence combined with the DNA evidence which permits a finding that the accused was the culprit.

[114] The defence also relied upon R. v. Ahmed, 2015 ONCA 848 involving DNA on a piece of plastic bag and R. v. Dodging Horse and Blancard, 2004 BSPC 0201, involving DNA on a dust mask with multiple major contributors. Both of those cases, similarly to Kerr, confirmed the requirement for additional evidence other than the DNA in order for the court to convict.

[115] I am satisfied that the other evidence present in this case and the DNA found on the t-shirt support the inference that Mr. Searay wore the white t-shirt around his head while he committed the armed robbery on November 12, 2015.

Statutory Interpretation

[116] Section 85(1) of the Criminal Code reads as follows:

85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(1) (a) while committing an indictable offence, other than an offence under …, 344 (robbery )…; [Emphasis added]

[117] As the indictable offence alleged to have been committed was robbery, I find Mr. Searay not guilty of the charge under section 85(3) of the Criminal Code.

Verdict

[118] Mr. Searay, I find you guilty of stealing from Joshua Carreiro while armed with an offensive weapon, namely a handgun, contrary to section 344(1) of the Criminal Code of Canada, and that you did, with intent to commit an indictable offence, have your face masked by means of a shirt, contrary to section 351(2) of the Criminal Code.

Released: January 30, 2018

Signed: Justice Harris Bentley