ONTARIO COURT OF JUSTICE
CITATION: R. v. Toussaint, 2018 ONCJ 648
DATE: September 25, 2018
Scarborough - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL TOUSSAINT and FELICIA CHAPMAN
For the Crown: J. Smith
For Michael Toussaint: M. Simrod
For Felicia Chapman: D. Goodman
Heard: July 24 – 26, 2018
REASONS FOR JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] The accused are each charged with a string of thefts of gasoline as well as possession of stolen license plates. The accused are charged on separate informations, but both their counsel have agreed that they be tried together.
[2] The Crown alleges that every few weeks, from April 9, 2016 through to January 20, 2017, the two accused would pump gasoline into their respective cars at various commercial gas bars and then leave without paying. At the end of the trial, the Crown sought convictions against Toussaint for eight (8) counts of gasoline theft and one count of criminal possession. As against Chapman the Crown sought convictions for twelve (12) counts of gasoline theft and two counts of criminal possession.
[3] The Crown relies on the affidavit evidence of the managers of the various gas bars, videos capturing the various thefts, evidence said to link both accused to the vehicles and license plates involved, and evidence linking the accused to each other.
[4] Neither accused testified at trial.
[5] Mr. Smith, for the Crown, argues that the videos and affidavits prove that theft occurred on the various alleged dates and that I can identify both accused on the videos as the perpetrators pursuant to R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] S.C.J. No. 122. In the alternative he argues that even if it is not possible for me to identify the accused on the videos, there is an overwhelming body of circumstantial evidence that proves beyond a reasonable doubt that both accused are the thieves and the criminal possessors of the license plates.
[6] Mr. Simrod and Mr. Goodman both argue that the video and affidavit evidence fall short of proving the thefts, and that, if indeed the thefts are proven, close examination of the videos suggests that persons other than their clients are the thieves. Alternatively, even if the videos do not exclude their clients, the circumstantial evidence admits of a reasonable possibility that someone other than their clients are responsible and that there is thus a reasonable doubt that their clients are guilty.
B. THE EVIDENCE AND MY FINDINGS OF FACT
(a) Introduction
[7] The police investigation began sometime in January, 2017. Police gathered affidavits from the managers of the various gasoline merchants as well as closed circuit video of each alleged theft going back as early as April, 2016. They discovered that the two license plates attached to the cars used in the thefts had been stolen before the thefts began.
[8] Further investigation revealed that in late January 2017 Mr. Toussaint (a heavy-set black man) operated and laid claim to a black Nissan Altima that is identical to the black Nissan Altima used by a heavy-set black man during the thefts. This investigation further revealed that in early February 2017 Ms. Chapman (a heavy-set black woman) operated and laid claim to a silver Nissan Altima that is identical to the silver Altima used by a heavy-set black woman during the thefts.
[9] Two Ontario license plates were used in the alleged thefts. On or about April 8, 2016 the rightful owner of BTJC 470 left her car bearing this plate to be scrapped. On April 9 the scrapyard owner noticed that the plate had been stolen.
[10] On May 21, 2016 plate ANWZ 655 was stolen from its rightful owner.
(b) The evidence of theft
[11] The affidavits relied on by the Crown are sworn to by the gas bar managers. They were admitted into evidence pursuant to s. 657.1 of the Criminal Code. Neither defence counsel sought to cross-examine any of the affiants.
[12] The affidavits are all largely identical in form. The affiant in each swears that gas was taken without payment on a particular day and at a particular time. Some affidavits specify which pump was used. The affidavits also say that accurate, unaltered videos depicting the thefts were given to the police.
[13] Detective Vicki Westervelt testified that she obtained the various videos from the gasoline retailers. She identified each one as to place and date as they were played and submitted as exhibits.
[14] All the videos quite clearly show the driver of a car approach the pump, exit their vehicle, pump gas without inserting a credit card, replace the hose and drive away. In some of the videos, another customer is shown pumping gas at another pump, but in all such videos, those other customers are clearly seen paying for their gas.
[15] In some of the affidavits there are some discrepancies between the time of the alleged theft as depicted in the video and the time set out in the affidavit. Notwithstanding these discrepancies I am satisfied beyond a reasonable doubt that the affidavits and videos together prove the commission of a theft of gasoline on each alleged occasion. As argued by Mr. Smith, it is open to me to accept the fundamental averments in these affidavits, notwithstanding these somewhat collateral inconsistencies. The affidavits, along with the testimony of Detective Westervelt clearly prove that the videos before the Court correspond to the thefts of gasoline referred to in the affidavits.
(c) The evidence as to the identity of the thieves
[16] I will briefly describe the thefts as depicted in the videos, with reference to particular characteristics of the perpetrator and his/her vehicle.
(i) The video evidence re Chapman
[17] On April 8, 2016 a woman pulls up to the gas pump driving a silver Nissan Altima with silver bumpers and a "Fosters" logo on the trunk lid. The car bears Ontario license plate BTJC 470 (470). It has no sunroof and has heavily tinted windows. The woman is medium height, black and heavy-set, wearing a black coat, jeans, brown boots and sunglasses. Her hair is in a ponytail of sorts. While fueling she puts her left leg on the pump island and her left hand on her left thigh.
[18] On May 12, 2016 a woman awkwardly backs up to the pump in a silver Nissan and plates (470) that are indistinguishable from the Nissan and plates used on April 8. The woman is black and heavy-set, with a large head of frizzy hair and a ball cap. She is wearing pants, sneakers, a white t-shirt and a vest. She also rests her left leg on the island and her left hand on her left thigh.
[19] On May 26, 2016 an identical silver Nissan is employed, this time with Ontario marker ANWZ 655 (655). The thief is a heavy-set black woman wearing boots that look identical to those worn by the thief on April 8 as well as a beige sweater. She too is wearing a ball cap over a large head of frizzy hair. She too rests her left leg on the island while pumping gas.
[20] On June 2, 2016 an identical silver Nissan is employed with the 655 plates. The thief awkwardly positions the car. She is a black, heavy-set woman wearing sunglasses with her hair tied up in some fashion and what look like brown sandals and a skirt. She does not rest her left leg on the island, but it is worth noting that the car is positioned somewhat far from the pump, which would have made such a stance uncomfortable.
[21] On July 3, 2016 the thief awkwardly approaches the pump in an identical silver Nissan bearing plate 655. She is a black heavy-set woman wearing a two-tone ball cap. Significantly (see below) she has a yellow and blue plaid garment (likely a shirt) tied around her waist. The shirt she is wearing bears a telltale logo over the left shoulder blade. She too rests her left leg on the island for a period of time.
[22] On July 15, 2016 the thief employs a silver Nissan that is identical to the previous ones, except the rear bumper is black. The car displays plate 470. She is a black, heavy-set woman wearing jeans, sunglasses, a t-shirt and a ball cap. She wears a necklace.
[23] On July 29, 2016 a black Nissan bearing plate 470 pulls into the station. Shortly thereafter, on a video that is hopelessly distorted, one can see a woman passenger emerge from a dark car and steal gas.
[24] On August 1, 2016 a car seemingly identical to the one used July 15, with plate 655 is employed. The thief is again a heavy-set black woman with a ball cap identical to the one used by the perpetrator on July 15. She is wearing a t-shirt with bold letters on the front.
[25] On September 22, 2016 the thief arrives in a silver Nissan identical to the one used on July 15, bearing plate 655. She is a heavy-set black woman wearing a necklace, a white skirt and a grey tank top. Her hair is tied up high on her head and she is wearing sunglasses. For a while she rests her left leg on the island with her left hand on her left thigh.
[26] On October 8, 2016 the thief is operating an identical Nissan to the one last described with plate 655. She is black and heavy-set wearing the same yellow and blue plaid garment around her waist as was the thief on July 3 and an identical ball cap to the one used by the thief on July 15 and Aug 1. The same insignia over her left shoulder blade can be seen as on the thief on July 3. She rests her left leg on the island while she steals the gasoline.
[27] On November 18, 2016 an identical Nissan bearing plate 655 is used and the thief is again a heavy-set black woman wearing a ball cap. She too rests her left leg on the island.
[28] On December 5, 2016 the approach to the pump is awkward. The Nissan is identical to the one used on Nov 18, except the front bumper is black, as well as the rear bumper. The heavy-set black female thief is wearing a black and white scarf and a leather cap. She rests her left leg on the island towards the end of her pumping experience.
[29] The January 2, 2017 thief uses an identical Nissan to the one used by the December 5 thief, with the 655 plate. Her approach to the pump is just as awkward as the earlier approach noted above, and in the same way. The thief is a black heavy-set woman wearing a leather cap. Her left leg rests on the island.
[30] On January 20, 2017, the last documented theft, an identical Nissan bearing marker 655 is used, but this time the thief is the passenger. She is again black and heavy-set. She wears a scarf identical to the black and white scarf worn by the thief on December 5, 2016 and a ball cap identical to the one seen on July 15, August 1 and October 8. She too rests her left leg on the island.
[31] There are so many similarities in the various thieves' method of operation, physical characteristics, clothing, driving ability, vehicle and plates used that I have no doubt that the thieves depicted in the videos described above are one and the same person.
[32] Upon merely viewing the videos, and applying the principles in Nikolovski, supra, I cannot conclude whether the thief is Ms. Chapman. None of the videos provides a good enough view of the thief's face so as to allow me to compare those views with the face of Ms. Chapman as depicted in her arrest video, or as I saw it in court. That determination stands to be made upon further review of the balance of the evidence, and I shall address it below in these reasons.
(ii) The video evidence re Toussaint
[33] On July 1, 2016 the thief, a heavy-set, bearded black man, is operating a black Nissan Altima bearing Ontario marker BTJC 470. The Nissan has a sunroof, a spoiler and twin exhaust pipes. He is wearing a necklace, a ball cap, white shoes, Capri-length pants and a long-sleeved shirt
[34] On July 19, 2016 the thief is operating a black Nissan that is identical to the Nissan of July 1, with the same Ontario marker. The thief is a heavy-set, bearded black man wearing an earring in both ear lobes.
[35] On October 1, 2016 the thief is operating a black Nissan with the 470 plate on the front dashboard. He is black, bearded and heavy-set and is wearing a ball cap strikingly similar to the one worn by the thief on July 1. He too wears a necklace and an earring in each earlobe.
[36] On October 6, 2016 an identical Nissan is involved bearing plate 470. The thief is indistinguishable from those responsible for the earlier thefts. He is wearing a necklace and flip flop shoes with a broad band over top of each foot.
[37] On October 28, 2016 we see what looks like the same car, the same plate, and a thief who is indistinguishable from the earlier thieves. He too wears a necklace that is indistinguishable from the necklaces noted above. He seems to be wearing a set of ear buds.
[38] On October 31, 2016 we see what looks like the same car, same plate and a heavy-set black thief wearing ear buds.
[39] On November 4, 2016 the thief is operating a GMC SUV bearing plate BTJC 470. The thief is indistinguishable from those described above and is wearing ear buds.
[40] On November 6, 2016 the thief is operating a black Nissan identical to those described above. Again it bears plate 470. The black, heavy-set thief is indistinguishable from those described above. He is wearing ear buds.
[41] On December 1, 2016 a heavy-set black man is operating a black Nissan that is identical to those described above. This Nissan has a yellow and green object dangling from the rear-view mirror and displays plate 470. The man in question is wearing flip flops that are identical to those worn by the man depicted in the video of October 6, 2016.
[42] The January 18, 2017 theft involves an identical Nissan bearing 470 and a thief who is indistinguishable from those described above.
[43] As is the case with the set of thefts alleged to have been committed by Ms. Chapman, as concerns this set of thefts, there are so many similarities in the various thieves' method of operation, physical characteristics, clothing, vehicle and plate used that I have no doubt that the thieves depicted in the videos described above are one and the same person.
[44] And again, as in the case of the female thief, upon merely viewing the videos of the thefts perpetrated by the heavy-set black man, and applying the principles in Nikolovski, supra, I cannot conclude whether the thief is Mr. Toussaint. None of the videos provides a good enough view of the thief's face so as to allow me to compare those views with the face of Mr. Toussaint as depicted in his arrest photos, or as I saw it in court. That determination stands to be made upon further review of the balance of the evidence, and I shall address it below in these reasons.
(iii) The Similar Fact application
[45] Before proceeding any further I must deal with the issue of the admissibility of evidence relating to all other counts in deciding whether each accused was the thief in any individual count against him or her.
[46] The Crown argues that, as concerns each accused, the thefts are so similar to each other that I am entitled to rely on the evidence of all counts in deciding whether each accused was the thief in any individual count against him or her. Both defence counsel disagree.
[47] The law concerning this issue (the admissibility of so called "similar fact" evidence) is well summarized by Watt J.A. in R. v. MacCormack, 2009 ONCA 72 at para. 48.
Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus falls upon the prosecutor to satisfy the trial judge, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at paras. 42 and 51.
[48] When the similar act evidence is offered in support of proof of identity the following principles apply:
As we have already seen, evidence of similar acts is received on the basis of an objective improbability of coincidence. The evidence derives its probative value from the degree of similarity among the acts under consideration. Where the evidence is offered to prove identity, we require a high degree of similarity among the acts for the evidence to be admitted. In some cases, the acts display a unique trademark or signature that renders them "strikingly similar" and satisfies the strict standard for admissibility. In other instances, the cumulative effect of a number of significant similarities in the manner in which the acts were committed will satisfy the admission requirements.
To gain entry as evidence of similar acts, whether involving extrinsic misconduct or con-duct that is subject of other counts on the same indictment, the evidence of similar acts must be appropriately connected to the facts alleged in an individual count. Similarities in character, proximity in time and frequency of occurrence are important factors.
MacCormack, supra, at paras. 61 – 62
[49] In my view, the alleged thefts are so strikingly similar that the test for admissibility is easily met. It should be noted that I have reached the conclusion as to the similarity among the counts against each accused without reference to any evidence linking each accused to any of the thefts. As such, any possible prejudice to them in applying the evidence "cross-count" is all but entirely eliminated. R. MacCormack, supra; R. v. Woodcock (2003), 2003 CanLII 6311 (ON CA), 177 C.C.C. (3d) 346; and R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228
(iv) Further evidence relevant to the identity of the thieves
[50] When Ms. Chapman turned herself in on January 30, 2017 in connection with this investigation she drove herself to the police station in a silver Nissan that was identical to the silver Nissan used in the theft on January 20, 2017, just 10 days earlier. After her release she sought to recover the vehicle, claiming it as her own.
[51] When police seized and searched Ms. Chapman's silver Nissan they discovered a parking ticket issued at 160 Chalkfarm on the windshield, documents in her name, and a yellow and blue garment indistinguishable from the one worn by the female thief on two occasions.
[52] On January 26, 2017 police entered the basement parking garage at 160 Chalkfarm, Mr. Toussaint's residence. They were looking for the black Nissan Ultima used in the thefts. They found a black Nissan Ultima that had a yellow and green object hanging from the rear view mirror. It also had the stolen plates BTJC 470 in the trunk. These plates had duct tape attached to the back of them. A roll of such tape was also found in the trunk. Mr. Toussaint was the individual who shortly later claimed this car at the police garage.
(iv) Is the female thief Chapman, and is the male thief Toussaint?
[53] These two questions are not independent of each other. It was admitted by defence counsel at trial that the two accused are acquainted. Indeed, when Chapman was released on bail after her arrest, Toussaint acted as her surety. Moreover, the stolen plate, BTJC 470 was used by both the male and female thieves, which suggests that the thieves know each other. Ms. Chapman had recently received a parking ticket at Mr. Toussaint's residence.
[54] The evidence against each accused is circumstantial. For each accused I must ask myself whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. It must also be emphasized that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. R. v. Villaroman, 2016 SCC 33 at paras. 35 and 38.
[55] As concerns Ms. Chapman, I reviewed the video of her appearance at the police station upon her arrest and I observed her over the course of three days in court. She is a heavy-set black woman with a figure that is identical to the thief's figure. She displays no physical characteristics that are dissimilar to those of the female thief.
[56] She was in possession of, and making full use of, a silver Nissan identical to the silver Nissan used merely 10 days earlier in the last theft committed by the female thief.
[57] The Nissan she possessed upon her arrest contained a garment indistinguishable from the garment worn around the waist by the female thief on two occasions.
[58] She has a fairly close relationship with Mr. Toussaint, who was in possession of a car that contained stolen plates used by the female thief on two occasions.
[59] Even though some minor changes had been made to the bumper of the thief's silver Nissan over the course of the thefts, all the evidence strongly suggests that Ms. Chapman's Nissan is the silver Nissan used by the female thief and that she is the thief. Her connection to Mr. Toussaint, who is also strongly implicated in the thefts alleged against him, and whom I shall discuss next, further supports this conclusion.
[60] As concerns Mr. Toussaint, I have closely examined photos taken by police upon his arrest, a video of him at the police station and I have observed him in court over three days. He is a heavy-set, bearded black man who is indistinguishable in any way from the male thief. Upon arrest he was wearing flip flop shoes identical to those worn by the perpetrator on more than one occasion.
[61] His black Nissan is identical to the one used by the thief, including the yellow and green object hanging from the rear-view mirror. The stolen plates used in the thefts are found in the trunk of his car. The tape on the back of the plates supports the conclusion that they were temporarily affixed to the car for the purpose of stealing the gas.
[62] The only scenario inconsistent with the guilt of both accused is as follows: a thief closely resembling Mr. Toussaint, and a thief closely resembling Ms. Chapman, each had possession of the two Nissans and then transferred possession of the two Nissans to the two unwitting accused within days of the two accused's apprehension by police. Such a scenario is not reasonably possible.
C. ANALYSIS
[63] In the result, I find both accused guilty as charged regarding the alleged thefts with the exception of the July 29, 2016 allegation re Ms. Chapman. The distorted video for this date raises a reasonable doubt as to the identity of the car and perpetrator.
[64] I also find both accused guilty with respect to the charges against them of possession of the stolen license plates (one count for Mr. Toussaint, and two counts for Ms. Chapman). The fact that Ms. Chapman's possession of both plates begins almost immediately after the theft of each plate, and her nefarious use of the plates support the conclusion that she knew both plates were stolen. Mr. Toussaint's nefarious use of plate 470, and the fact that he began to use it after Ms. Chapman's nefarious use of it support the conclusion that he knew it was stolen.
Released on September 25, 2018
Justice Russell Silverstein