WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

b) a terrorism offence;

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court: Ontario Court of Justice

Date: June 7, 2019

Court File No.: Burlington 1211118-0025

Between:

Her Majesty the Queen

— AND —

O.M., T.-J.W. and M.R.-M. ("young persons")

Before: Justice P.T. O'Marra

Heard on: November 5, 6, 7, 8, 19, 21, 22, 23, 26, 27, 2018; December 3, 6, 2018; March 11, 12, 13, and 14, 2019

Reasons for Judgment released on: June 7, 2019

Counsel

Elise Quinn — counsel for the Crown

James Miglin — counsel for the young person O.M.

Andrew Vaughan — counsel for the young person T.-J.W.

Andrew Morrison — counsel for the young person M.R.-M.

Introduction

[1] On September 28, 2017 at approximately 11:00 p.m. the complainant, S.M. was robbed at gunpoint of her personal belongings including a purse containing personal documents, cash and a cellular phone. At the time, S.M. was working out of room 212 of the Holiday Inn in Oakville, as an escort.

[2] Shortly before the robbery, S.M. had exchanged sexual services for money with a client. It was alleged that afterwards the client opened the door and another male handed a firearm to the client. The client grabbed S.M.'s throat and pointed the firearm at S.M. and said, "If you scream I will shoot you bitch". S.M. screamed for help and the client put the gun into her mouth. Three (3) other black males entered and ransacked the room and looked for valuables. The client remained in the room after the three (3) men fled down the hallway down the emergency exit. The client was last to leave but took S.M.'s purse.

[3] It was the Crown's theory that O.M. was the client, an adult co-accused identified as Mr. B passed the gun to O.M, and both T.-J.W. and MR-M ransacked the room.

[4] O.M. and Mr. B were arrested on October 25, 2017. T.-J.W. and M.R.-M. were arrested on November 13, 2017.

[5] O.M., T.-J.W. and M.R.-M. were charged jointly with the following offences:

1. Robbing S.M. with a firearm to wit: a black handgun, contrary to section 344(a.1) of the Criminal Code of Canada (hereinafter referred to as the "Criminal Code").

2. Did use an imitation firearm while committing the indictable offence of robbery, contrary to section 85(2)(a) of the Criminal Code.

[6] O.M. was charged alone with the following offences:

1. That he obtained the sexual services of S.M. for consideration, contrary to section 286.1(1) of the Criminal Code.

2. That he unlawfully recruited, exercised control, direction or influence over the movements of S.M. for the purpose of exploiting or facilitation the exploitation of S.M., contrary to section 279.01(1) of the Criminal Code.

3. That he had in his possession a weapon to wit: a black handgun for the purpose of the commission of a criminal offence, contrary to section 88(1) of the Criminal Code.

4. That he without a lawful excuse pointed a firearm to wit: a black handgun at S.M., contrary to section 87(1) of the Criminal Code.

5. That he used an imitation firearm to wit: a black handgun while he committed the indictable offence of robbery with a firearm, contrary to section 85(2)(a) of the Criminal Code.

6. That he verbally threatened to cause death to S.M., contrary to section 264.1(1)(a) of the Criminal Code.

7. That while he was at large on his recognizance of bail, failed without a lawful excuse to comply with the following condition: remain in his residence between 7:00 p.m. and 7:00 a.m. except for medical emergencies involving him or his family, unless in the presence of his surety, unless approved in writing by his surety dated and signed, contrary to section 145(3) of the Criminal Code. That while he was at large on his recognizance of bail failed without a lawful excuse the condition that he remain in his residence at all times except for the purposes of travelling directly to, from and while at school unless he was in the presence of his surety or his father for the purpose of prescheduled attendance while at school, contrary to section 145(3) of the Criminal Code.

[7] All three co-accused pled not guilty. At the outset of the trial, the Crown withdrew "use of the imitation of a firearm during the commission of a robbery" (count #7) against O.M. The Crown called 24 witnesses and filed 43 exhibits. An application for a directed verdict was advanced by counsel for O.M. at the close of the Crown's case. The Crown more or less consented to the application, and as such I directed a dismissal of the "human trafficking" charge (count #4) and the "curfew breach" charge (count #9) against O.M.

[8] Neither young person testified nor called a defence.

Summary of the Evidence

The Robbery at the Holiday Inn

The Evidence of S.M.

[9] On September 28, 2017, S.M. checked into the Holiday Inn in Oakville, to work as an escort. She had advertised her services on a website called "Backpage." The phone number that she used on the website was […]. The advertisement was filed and marked at exhibit #29.

[10] At approximately 10:03 p.m., S.M. testified that she began to receive text messages from phone number […] looking for her services. S.M found it odd that this person was texting her regarding the location of the elevators and had asked her to come out into the hallway to meet him. The reason she found this strange was if anyone walked through the front doors of the Holiday Inn they would immediately observe the elevators. She refused to meet him outside of her door.

[11] S.M. testified that her previous client had not shown up. That client had communicated through email. A portion of the address contained the word "Mexican".

[12] S.M. did recall in her direct examination that she received a text message from that same number earlier in the evening at approximately at 8:30 p.m. S.M. had texted out her rates and restrictions to the person (hereinafter referred to as the "the client") as well as her room number.

[13] At approximately 10:30 p.m., the client showed up at her door. S.M. greeted the client and asked him to come inside the room. The client sat down in a chair and immediately brought out two cellphones, one had a gold case and the other phone had a neon green case. He asked questions about whether or not she was an independent sex trade worker, and whether she was alone? The client also suggested that S.M. should come with him to Jamaica and make a lot of money. She felt that the conversation was "odd and creepy". However, she formed the opinion that the client could be a pimp since he had two phones with him. As well, he seemed to sympathize with S.M.'s frustration that her previous client had not shown.

[14] S.M. and the client engaged in sexual intercourse. She was paid $120.00 in cash which was placed on the side table next to the bed by the client. However, while having sexual intercourse, S.M. testified that there was a knock at her door. She got up and looked through the peep hole. She described that a tall black male that wore jeans, sneakers and a blue hoodie over his head, told her that her TV was loud and that she should turn it down. S.M. found this odd since her TV was not turned on. After they had finished having sexual intercourse, the client flushed the condom down the toilet. He did not say anything to S.M. but instead began texting on his phone. The client texting and his silence prompted S.M. to tell the client that she had to get going as she had friends waiting for her downstairs.

[15] S.M. testified that as the client opened the door to leave, he suddenly put his foot in the door to prevent S.M. from closing the door. She tried to push the door closed, but three other males pushed back on the door and rushed into her hotel room. She testified that the black male who previously knocked on her door, passed the client a handgun. The client placed his hand on S.M.'s throat and began to choke S.M. Immediately, the client placed the gun against her head. She bit his fingers as he tried to put them in her mouth. The client placed her in a headlock with his left arm. She stated that at this point, the client became very angry and shoved the gun into her mouth and down her throat. He told her "bitch, if you scream, I'll shoot you". S.M. screamed to get anyone's attention. She testified that she gagged and pulled the gun out of her mouth. S.M. described that the gun was black, heavy, made of metal, and approximately ten inches in length. With his free hand, the client grabbed S.M. around her throat.

[16] S.M. testified that as the client placed her in a head lock he stepped back and allowed the other three (3) individuals to run into the room. The three (3) men began to search for valuables. They flipped over the beds and looked underneath. The three (3) men searched drawers, closets, under tables and in garbage cans. After the client let her go he found her Chanel purse which was hidden under a pillow. Her purse contained a Swarovski crystal bracelet, credit cards and the following pieces of identification: a Russian passport, a permanent residency card, an Ontario driver's licence, and a health card. S.M. testified that she believed that the client fled the room with her purse after the other three males had left.

[17] The males rushed out of her room door down the hallway and "speed walked" towards the emergency exit and stairs.

[18] S.M. testified that she recalled checking her watch at 11:00 p.m. just before the males entered her room. She described that the robbery happened "very fast". She estimated that the robbery took approximately one (1) or two (2) minutes. She described the scene as chaotic. She was very fearful.

[19] S.M. left the room. She saw three people in the hallway.

[20] In her direct examination, S.M. described that the client was a young black male who had distinguishing facial features. Specifically, S.M. testified that the client's nose was "straighter". S.M. stated that she is five (5) feet four (4) inches in height, and therefore, she estimated his height to be approximately five (5) feet five (5) or six (6) inches tall. She stated that he had a medium build and was "heavier at the bottom". He had short curly hair. He wore jeans, a Gucci belt, a white T-shirt, a grey pull over vest that may have had a pattern on it, and Jordan sneakers. She described that the client had a Jamaican accent but qualified the accent as "more, like, an Indian person almost would have an accent…" S.M. observed that the client wore a gold chain around his neck. A golden square pendant about the size of a quarter, was attached to the chain.

[21] In her direct examination, S.M. identified the male that wore the blue sweater as African American. She described the other three men as young and "no older than 22".

[22] S.M. described that she suffered the following injuries: bruising inside her throat, scratches to her face and bruising to her to her neck. She identified herself in a photograph (exhibit #30) taken at the hospital by the police. Scratches below the right corner of her mouth and bruising on both sides of her neck can be observed in the photograph.

[23] In cross-examination, S.M. was questioned extensively about her body position as the door was forced open and she was choked. S.M. agreed with the suggestion that the person that choked her, put her in a headlock and placed the gun in her mouth, was behind and that her body position never changed.

[24] In cross-examination, S.M. agreed that she was unclear about the exact sequences of events. For example, exactly when the gun was pointed at her head and the client uttered the threat. However, she never wavered on the fact that the gun was pointed at her head.

[25] In cross-examination, S.M. confirmed that after the client sat down, he spoke to her in a manner that made her feel uneasy. Moreover, she asked the client for identification, as she felt that he may be underage. According to S.M., her main concern was to know his name, in case something happened. Nevertheless, the client never produced any identification.

[26] The services were provided. S.M. confirmed that the cash fee was left by the client on the table in between the two double beds. After the robbery, S.M. noticed that the money was still on the table.

[27] In cross-examination, S.M. was certain that the person that she texted that evening, was the client that appeared at her hotel room. She used the phone application titled TextNow. It permitted S.M. to communicate with email addresses via text messaging. For example, at the same time S.M. was communicating with the client, she was also communicating with someone identified as the "Working Mexican 69". The conversation commenced at 9:19 p.m. and stopped at 10:11 p.m. The conversation with "Working Mexican 69" was read from her iPad to Detective Ciardullo when she was interviewed by the HRPS the following day. The exchange seemed to confirm that the "Working Mexican 69" did not show up that evening. However, he did request that he meet S.M. in the hallway. S.M. testified in direct examination, the client also had requested to meet in the hallway. He found that this request was unusual. S.M. conceded that the request to meet in the hallway did not come from the client's phone, but rather from the "Working Mexican 69" email via the TextNow application.

[28] In cross-examination, S.M. admitted that upon reflection overnight, she recognized that she made a mistake in her direct examination, when she testified that she never talked to the client on the phone that evening. S.M. conceded that she did have a conversation regarding the location of her room. Again, she repeated that the client that showed up at her door, she felt was the same person whom she talked to on the phone that had an Indian accent.

[29] In cross-examination, re-iterated that before she was grabbed by the client, the handgun was passed to him by someone outside of the room. Counsel reviewed page 27 of the transcript of her hospital audio interview, wherein S.M. told the police that she " believed …somebody passed him the gun, and he turned around, he put his hand, and – and he had the gun". Since S.M. used the word "believe", counsel suggested that she never actually saw the transfer of the handgun. S.M. agreed that she used the word "believed" but that did not mean that she was uncertain that the client was passed the handgun. She assigned her misuse of the word "believed" to her poor English. As well, further in her statement at page 34, S.M. used the same expression that she "believed" that was the suspect when she was shown a photograph (exhibit #37(a)). However, S.M. also stated that she was uncertain if the male in the photograph was the male in the blue hoodie that knocked on her door and passed the handgun to the client.

[30] S.M. was asked similar questions regarding her videotaped statement in cross- examination, and her certainty that she saw the male in the blue hoodie/sweater passed the handgun to the client. At page 29 of her statement, she stated to Detective Ciardullo that "um, the person in the blue sweater, I think he passes the gun to him." S.M. adopted the answer as truthful. Further along in her statement at page 33, S.M. referred to the male twice as "somebody" that passed the handgun to the client.

[31] S.M. admitted in cross-examination, that she did not actually see the handgun passed to the client. However, she testified that as soon as the door was opened, she witnessed the male in the blue sweater standing in the hallway extending his arm towards the client, and subsequently, the client turned to her holding a handgun.

[32] In cross-examination, S.M. said at least three (3) to four (4) males, including the client came into the hotel room.

[33] In cross-examination, S.M. acknowledged that she had never seen an actual handgun in her life. She agreed with counsel's suggestion that the handgun was never "racked" and she never observed any ammunition.

[34] In cross-examination, S.M. agreed that she did not describe the uniqueness of the client's nose to the 911 operator. However, counsel put to S.M. a portion from her video recorded statement and the exchange that she had with Detective Constable Ciardullo, in regards to the fact that she described the client's nose as straighter and not as wide, as opposed to a more typical black person's nose which, in her opinion, was wider. S.M. disagreed with counsel's suggestion that she believed that a straight nose is "a distinct black feature."

[35] In cross-examination, S.M. agreed that she told the police at the hospital, that she did not customarily provide services to black males. But on this occasion she admitted that she had to, as she did not have a "high volume of work". She further stated, that she allowed herself on this occasion to trust a black person. She also insisted to the officer that she was not racist, as half her family was black. At the time of the incident, her boyfriend was black. S.M. testified that as a general rule, many escorts, including herself did not provide sexual services to black males. However, in the past S.M. admitted that with proper screening, she has provided sexual services to black male for cash. In re-examination, she explained that in her past experiences, she often found that black clients were pimps that might tend to harm an escort.

[36] S.M. admitted that after her trial preparation meeting with the Crown, she took her statements home to better prepare her testimony.

[37] In cross-examination, S.M. denied counsel's suggestion that S.M. accidentally closed the door on the client's foot and which made him angry.

Dayna Henderson's Statement

[38] Dayna Henderson was a hotel guest at the Holiday Inn the night of the robbery. Ms. Henderson and two friends occupied room #218. After the robbery, Constable Toth took a hand written statement from Ms. Henderson.

[39] Due to Dayna Henderson's failure to attend a courthouse located in Fairfax, Virginia to testify by video link-up on November 5, 2018, the Crown brought a hearsay application. I issued my oral reasons on March 13, 2019. I was satisfied that the relevant portion of Ms. Henderson's statement met threshold reliability under the principled approach to the hearsay exception and admitted the following portion of Ms. Henderson's statement for the truth of its contents:

We were in room 218 around 11p.m. on September 28 th ….I opened the door and went in the hall and I heard a woman screaming. Earlier in the night we came to our room at 11p.m. I saw three young men in the hall outside of a room just down the hall from mine. We had to step over their legs because sitting down in the hall with their legs stretched out…Back to when I heard the woman screaming I ran into the hall, looking…and I saw the same three males run to the staircase farthest from my room. I had focused on the yelling, walked towards it, and saw a room with the door cracked. I grabbed the handle, opened the door, and I saw a 4 th male with his hand on a womans [sic] throat holding her against the wall. I screamed "what are you doing", the male then ran towards me…he ran past me carrying a grey sweater, it looked like he was holding something under the sweater, it looked like he was holding something under the jacket. His arms were as if he was carrying a football or something under the sweater but I couldn't see what it was.

The Holiday Inn Surveillance Video

[40] The Crown called, Forensic Video Analyst Stephen Donohue, from the HRPS, Technological Crime Unit. He was tasked to attend the Holiday Inn and export the video surveillance of the evening of the offence from the Hotel's security camera system.

[41] Mr. Donohue compared the time on the security footage to real time. He noticed that the time on the security footage was seven (7) minutes and three (3) seconds slower than compared to the atomic clock. Therefore, the events depicted on the security footage actually commenced at 10:15 p.m.

[42] The Crown filed, on consent, a DVD of the security footage from the first floor (exhibit # 3) and Mr. Donohue's printed PDF report which contained still photographs of four black males walking the first floor and between 10:07:39 p.m. and 10:18:48 p.m. (exhibit #5 (b)).

[43] Page 4 of the report showed two pictures from Chanel 8 that depicted a lone black male walk toward the camera at 10:07:36 p.m. and then away from the camera at 10:07:38 p.m.. The lone male wore a grey hoodie, dark pants, with the hood over his head. He seemed to be holding an object in his right hand, which seemed consistent with a phone.

[44] The first photograph on page five (5), was a photograph taken closer of the same lone male. The time stamp was 10:07:39 p.m. In this image, the object in his right hand has lit up, similar to an iPhone or smartphone screen.

[45] The second photo on page five (5) taken at 10:12:59 p.m., was that of a lone male walking away from the camera. He carried a grey article of clothing "balled up" in his right arm. He wore a white T-shirt and a grey sweater that had dark trim around the collar and arms.

[46] The third photograph on page five (5), taken at 10:13:00 p.m., was a photograph of the lone male depicted in the second photograph on page 5, but further away from the camera.

[47] The first, second and third photographs on page six (6) taken between 10:13:00 p.m. and 10:13:02 p.m. were photographs of the same individual in the second and third photographs from page five (5) but further away from the camera.

[48] The first, second, and third photographs on page eight (8) taken at 10:18:48 p.m. showed three black males walking down the hallway toward the security camera. From left to right: the first black male wore a grey sweater, and dark pants. He had a skinny build. He seemed to shield his face from the camera with his left arm. The second black male had a heavy build. He wore a lighter grey hoodie sweater and dark pants. He seemed to shield his face with his left hand. The third black male wore a blue hoodie sweater, with white draw strings and dark pants. It seemed to be partially open or unzipped. There seemed to be white trim in that area of the open sweater. His build was similar to the first male. His hands were down to his side or in the pockets of the hoodie or pants.

[49] The first and second photographs on page nine (9) taken at 22:18:49 p.m. seemed to be the second and third males walking under the camera. The third male was still covering his face with his right hand. The third photograph was of the lone male that wore a sweater vest that carried the balled up grey sweater over his right arm. He walked towards the camera at 10:13:25 p.m. (Channel 7)

[50] The first photograph on page ten (10) taken at 10:13:26 p.m. was the lone male close to the camera that wore the sweater vest. (Channel 7) The second photograph taken at 22:13:48 p.m. was the same lone male walking away from the camera. (Channel 7)

[51] The assistant desk service manager of the Holiday Inn, Shavaiz Nadeem worked the evening of the robbery. He testified that there were emergency exits at both ends of the first floor. He confirmed that there was an exit and stairwell behind the security camera. There was a door to the lobby and the elevators were on the left, halfway down the hallway. He also confirmed that there was an exit door from the main level that led outside. However, guests were not meant to enter through that door, as there was no door handle.

The Photograph Line-up and the Screenshots Viewed While at the Hospital

[52] On October 24 th , 2017, S.M. identified O.M. in a police photograph line-up as the client who assaulted and robbed her at gun point. A DVD of the photograph line up procedure, the photograph line up instruction sheet, and a Peel Regional Police photograph taken of O.M. were entered at exhibits #6, #7 and #2, respectively.

[53] Detective Constable Scott Feddema administered the photograph line-up. The procedure was video recorded. Detective Constable Feddema testified the he never told S.M. that any of the suspects were in the photograph array. He did not provide the suspects' names to S.M. He read an instruction sheet to S.M. (exhibit #6)

[54] After S.M. identified photograph #7 in the line-up was O.M., she was asked by Detective Constable Feddema what led her to identify O.M. in the photograph. She responded that he had distinct facial features. In cross-examination, counsel pointed out that at page 10 of the transcript of the photo line-up video, S.M. referenced that the person she picked out had "distinct, like, black features". S.M. stated that his facial features were unique to someone who was African American. She stated that it was the straightness of his nose. She conceded that on a previous occasion she referenced the uniqueness of the client's nose but not on the date of the photograph line-up.

[55] S.M. confirmed that while at the hospital, she was shown photographs of the suspects by the police. Although, S.M. had difficulty recalling how many photos she was shown, Constable Ciardullo confirmed in his testimony that S.M. was shown two screenshots (Exhibit #37(a) and #37(b)) from the hotel security video. Exhibit #37 (a) was a screen shot of three black males on the second floor. Exhibit #37 (b) was a close up of a black male that wore a white T-shirt and a sweater vest.

[56] In cross-examination, S.M. testified that she told Detective Ciardullo after he showed her the still images, she had difficulty recognizing the black male as the client, and similarly had problems identifying the other black males as the individuals who rushed into her room. She acknowledged to Detective Ciardullo that she did not want to "sound racist" after she confessed about her uncertainty identifying the suspects in the screenshots. The video was played in the courtroom. At time stamp 41:10, it was clear from the video, when S.M. was shown the photographs, she whispered to Detective Ciardullo: "it's hard to recognize them".

[57] Counsel forcefully suggested to S.M., that she has difficulty recognizing people of "cross race" and, that she refused to admit to that in order not to weaken the prosecution's case. In response, S.M. denied the suggestion, but added that she did not want to be wrong and hurt someone. Furthermore, her uncertainty seemed to stem from the fact that when the suspects ran into her room, she did not get a good look at their faces.

[58] During the course of S.M.'s cross-examination on her audio recorded police interview on September 28, 2017, it became apparent that S.M. was shown two photographs by Constable Tinebra.

[59] Constable Tinebra testified that during S.M.'s interview, S.M. was shown two images from Constable Tinebra's work phone. The images were screen grabs taken by Constable Sebastian Del Castillo and forwarded to Detective Constable Tinebra. At approximately 11:56 p.m., Constable Del Castillo attended the Holiday Inn to retrieve the footage from the security camera. However, he was unable do so as the manager was unavailable. Instead, Constable Del Castillo viewed the footage and took two photographs on his iPhone.

[60] The first photograph/screen grab was a close up of the three black males walking towards the camera on the first floor. The second photograph/screen grab was a close up of the lone male that wore the sweater vest walking towards the camera on the first floor, carrying an object on top of his right arm.

[61] Both images were included in technological crime analyst Donohue's report. The copies were printed from Constable Tinebra's iPhone and entered into evidence. (exhibits #37(a) and #37(b)) The resolution of the images were poor. No facial features can be made out. Furthermore, there was a dominant bluish hue to both copies of the images.

[62] Constable Tinebra testified that the images observed on his phone, in her opinion, were unclear, a "bit blurred," and did not have any "identifying facial features."

[63] Constable Del Castillo returned to the station and uploaded the images from his iPhone to the HRPS computer system.

[64] Constable Del Castillo identified exhibits 37(a) and 37(b) as the two photographs that he generated.

The Search Warrants and the Arrests

Mr. B

[65] On October 25 th , 2017, after the execution of a search warrant at his home located at […], the adult co-accused in this matter, Mr. B was arrested by Constable Jason Caron. Mr. B was transported by Detective Constable Lukasz Walczykiewicz. When Detective Constable Walczykiewicz took over custody of Mr. B, he noted that Mr. B was wearing a blue hoodie with a white draw string and a white zipper. The blue hoodie was seized. A photograph of the blue hoodie was identified by the officer as the hoodie that he seized (exhibit #15). As well, Constable Walczykiewicz identified two cellphones that he seized. One cellphone was a silver iPhone 6, and the other was an ASUS smartphone. The number assigned to Mr. B was […].

[66] Detective Constable Walczykiewicz testified that there was nothing of evidential value located at Mr. B's residence.

[67] At the time of O.M.'s arrest for this matter, Mr. B was O.M.'s surety on another set of charges.

[68] Constable Zivkovic interviewed Mr. B. During the interview, he was shown images that were captured from the security camera (exhibit #12). Constable Zivkovic showed Mr. B the four photographs of the three suspects walking towards the camera. He identified himself as the individual on the right that wore the blue hoodie with white draw strings. He identified "M" as the individual in the middle. He identified the person on the right in the photograph as "LBT" and "BT."

[69] On November 2, 2017, Mr. B forwarded a text message to Constable Zivkovic that contained a link to a rap video titled "[…]" by "SBT". According to Mr. B, both "SBT" and "M" appeared in the video singing. Counsel for T.-J.W. and M.R.-M. conceded in their submissions that T.-J.W. was "SBT," "LBT," and "BT" and M.R.-M. was "M."

T.-J.W.

[70] On November 13, 2017, after the execution of a search warrant at his home located at […], T.-J.W. was arrested. Incidental to his arrest, a black iPhone 7 was seized from T.-J.W.'s front right pant pocket by Constable Brille.

[71] A Samsung smart phone was located in the living room, on a shelf of a coffee table underneath the glass top. A copy of a recognizance of bail in T.-J.W's name was located too. A pair of size thirteen (13) men's basketball shoes were located and seized beside a lay-z-boy chair on an enclosed balcony.

[72] A men's grey hoodie was located on a bedroom floor, in between a set of bunk beds and a wall. Hanging on the wall of this bedroom was a "basketball type of diploma" in T.-J.W.'s name. Inside the top drawer of a dresser in the bedroom closet was T.-J.W.'s Canadian passport, his birth certificate and his driver's license application.

[73] Detective Constable Walczykiewicz was the exhibit officer for the search of T.-J.W's home. In cross-examination, the Detective Constable agreed that given the "amount of clothes and stuff", T.-J.W.'s brothers may have lived there. (However, I have no evidence before me that T.-J.W. had any brothers that resided at the residence.)

O.M.

[74] On October 25, 2017 O.M. was under police surveillance. He was followed to a bus stop. Shortly before his arrest by members of the tactical unit, O.M. was observed speaking on a cellphone. Constable Eric Paroshy testified that after he took over the arrest of O.M. and placed him in his cruiser, he was handed a clear property bag. The officer did not take an inventory of the property bag. O.M. was transported to 20 Division in Oakville. Constable Paroshy testified that he turned over the property bag to Constable Wathen.

[75] O.M.'s property was inventoried by Constable Moss at 20 Division. He was in charge of booking prisoners. Constable Moss testified, that when he detailed O.M.'s property bag, it contained an iPhone. Constable Zivkovic attended 20 division and seized the iPhone. He described the iPhone as white with a black case. He removed the iPhone from the property bag, and from his cellphone, he called the number that he believed was assigned to O.M., […]. The iPhone lit up and displayed "No Caller ID." Constable Zivkovic turned off the iPhone and put it back into the property bag.

[76] Constable Zivkovic participated in the execution of a search warrant at O.M.'s residence located at […]. Constable Zivkovic was designated the exhibits officer for the search. Constable Zivkovic was shown several photographs of items that were seized from O.M.'s bedroom. (exhibit #9) He testified that a gold emblem that might be affixed to a chain was located on top of a white dresser inside his bedroom. Constable Zivkovic felt that the gold emblem was particularly important, as S.M. reported that the client wore something similar on his chain. A grey Ralph Lauren sleeveless sweater with black piping around the neck and sleeves, was seized from the top shelf of his bedroom closet. A grey Puma sweater was found on the floor of the bedroom near his bed. Finally, a gold colored iPhone case was found next to O.M.'s bed. The gold colour iPhone case was entered as exhibit #32.

M.R.-M.

[77] On November 13, 2017, M.R.-M. was arrested down the street from his residence. Subsequent to his arrest, a Samsung Galaxy S5 Neo android phone was seized from M.R.-M. Detective Powers testified, later that day she called the number assigned to the phone- […]. The call went directly into voicemail. In view of the fact that she had spoken earlier to M.R.-M. during the arrest procedure, Detective Powers believed that M.R.-M.'s voice was on the voicemail greeting. However, in cross-examination, Detective Powers conceded that she could not be absolutely certain, just that it sounded similar to M.R.-M.

[78] Detective Powers testified that M.R.-M. provided his mother "S's" phone number, in order that Detective Powers could notify a parent about his arrest. She called […] and "S" answered. Subsequently, Detective Powers returned to the station and met with M.R.-M.'s mother, "S."

The Cellular Phone Analysis

The iPhone 6 Extraction Report

[79] Production orders for the cellular phones were issued and served on the following service providers: Rogers, TELUS, and Freedom Mobile. Detective Constable Craig Fallis from the HRPS, Technological Crime Unit was assigned to extract data from various cellular phones. He is qualified to forensically analyze computer and digital devices. The officer connected the Cellebrite UFED physical analyzer program to the cellular phones to extract stored data. Afterwards, Detective Constable Fallis created an UFED extraction report package for the iPhone 6 that was seized from O.M. which he delivered to Detective Powers (exhibit #33).

[80] On page one (1) of this report, at tab one (1) under subtitle "Device Information" the Apple ID for the iPhone 6 was […] @gmail.com . The Apple ID is necessary in order for the phone to link contacts and information to a specific user. Detective Constable Fallis testified that the number assigned to this particular iPhone was 1- […] which was found on page one (1) of his report. The user account was under […] @gmail.com .

[81] On page two (2) at tab one (1) row twelve (12), the Snapchat application was logged into with the username "[…]."

[82] On pages three (3) and four (4) at tab one (1) under "Contacts (2)", the following information was located in the user's phonebook: The first two entries showed a contact named "Gang" with phone number […] and another named "[…]" with phone number […]. On the next page, there was a contact named "[…]" with phone number […], and "[…]" with a username "[…]" for Snapchat.

[83] These contacts were created on October 18 th , 2017. Detective Constable Fallis testified that this did not necessarily mean that on October 18 th , 2017 the numbers were originally entered into the phone. The date only represented when the contact card was created. According to Detective Constable Fallis, the date did not have any historical value.

[84] On pages five (5) to nine (9) at tab two (2), the "Call Log" was detailed. All the timestamps were dated from October 5 th , 2017 to October 25, 2017. The call log showed that the iPhone 6 had placed calls and Snap chatted with the numbers associated with "[…]," […] and "Gang."

[85] At tab three under "Chats" at page three (3), there was a chat on October 23, 2017 whereby the name "O" was used associated with […]. At page five (5) there was a reference to "Hi O" on October 23, 2017.

[86] Tab four (4) of the report referenced "Data Files". At page two (2) row 24, there was a thumbnail picture. The larger version of that image was found at page three (3) purported to be O.M.

[87] At page four (4) row 54, there was another thumbnail picture. The larger version of that image was found at page five (5) purported to be O.M. wearing a gold chain.

[88] At page six (6) row 74, there was a thumbnail image. The larger image was reproduced on page seven (7) purported to be Mr. B.

[89] At page eight (8) row 83, the thumbnail image was reproduced on the next page. This image was purported to be O.M.

[90] At Pages 11, 13, 15, 17 and 21 there were larger photographs also located on the iPhone 6 that seemed to be images of O.M.

[91] At Page 19 there was a picture of Mr. B wearing a bright green Food Basics work shirt.

The Samsung Galaxy S5 Neo

[92] Detective Constable Fallis testified that he used a different program to create the extraction for this android phone. His extraction report for this phone was marked as exhibit #31. According to page one (1) at tab one (1), the phone activation date for this phone was April 21, 2017. The name associated to this device was "M.R.-M."

[93] At page four (4), tab one, (1) row 27, the user name associated with Snapchat was "M.R.-M." and the account name was under "[…]". The User ID was the email address: […] @hotmail.com . In row 28, the user name for the "WhatsApp" application was […] @s.whatsapp.net . The account name was "[…]". The email address and mobile phone number associated with the WhatsApp program was […]@gmail.com and […], respectively. At page five (5), row 32, a Facebook account was set up on this phone. The Facebook account name was under "M.R.-M." The phone number and email address associated with the Facebook account was […] and […]@gmail.com . Detective Constable Fallis testified, that it was necessary for whoever created these accounts to input this data.

[94] At tab three (3), pages 3, 5, 7, 9, 11, 13, and 15 were photographs found in a gallery claimed to be of M.R.-M. Detective Constable Fallis testified that a gallery on a Samsung phone was the location where similar pictures were "taken, downloaded and saved". On page 17, there was an image, or a screen grab, from a video file associated with an Instagram application that contained the rap video "[…]." The image depicted M.R.-M. wearing a black Adidas sweater. M.R.-M. identity in the video was conceded by counsel.

[95] In cross-examination, Detective Constable Fallis testified that the "creation date" seen beside the thumbnail images was the date that the thumbnail was created. The creation date did not provide any definitive information regarding when the original picture was created or taken. The modified date was the date that the phone last accessed the data or the file.

[96] In cross-examination, Detective Constable Fallis conceded that he did not know the meaning of the "last activation date."

[97] In cross-examination, Detective Constable Fallis confirmed that the Samsung phone had 36 user accounts. The operating system of the Samsung Galaxy S5 was not locked to a particular user account or profile. The extraction report did not detail the dates that various user accounts accessed the Samsung Gmail service. As well, it was difficult to determine which individual user account accessed the thumbnails, since all of the pictures were stored in one gallery.

[98] In cross-examination, Detective Constable Fallis confirmed that he generated a separate extraction report for the SIM (Subscriber Identity Module) card that was removed and analyzed. The SIM card contained the user identity and phone number, and facilitated the user being contacted on that phone. The SIM card from the Samsung Galaxy S5 did not have a phone number.

[99] In cross-examination, Detective Constable Fallis confirmed that all of the call logs, and data files in the extraction report came from the phone itself, not the SIM card. It also appeared from the report under "SIM change time" that the SIM card may have been swapped out on October 3 rd , 2017.

[100] In cross-examination, Detective Constable Fallis was questioned about the precision and accuracy of the dates of files that were "deleted," "created" and "recovered." He testified that generally those dates were inaccurate and unreliable due to the program's attempts to recover as much of the data, as possible. However, he testified that the files found on the device were accurate.

[101] In re-examination, Detective Constable Fallis clarified his testimony regarding the relevance of the "creation time" in his iPhone 6 extraction report. He testified that this time stamp was not suggestive or probative of any prior communication. At its highest, the creation time only spoke to "when the entry was inputted or in the phone book."

Cellphone Activity on the Night of the Robbery

[102] A representative from Rogers' Communication, Lorne Ellison testified about cellphone tracking, as it related to the locations of cellphones. Mr. Ellison stated that as long as there was a clear line of sight, cellphone transmissions use the closest tower to that phone. However, there were a few exceptions to this rule. If, for example, there were tall buildings, high hills or something that was tall and concrete, the signal may use the next closest tower. But more often than not, according to Mr. Ellison, the communication will drop in a voice communication and retry the signal.

[103] Mr. Ellison prepared a Call Detail Report (CDR) for […] (exhibit #25) and for […] (exhibit #26).

[104] Constable Steve Rutledge prepared maps of the various locations of Rogers, TELUS and Freedom Mobile cellphone towers that were located within a few kilometers of the Holiday Inn that were associated with, and received signals from, phone number […] (O.M.), Mr. B's phone number […],[…] (T.-J.W) and […] (M.R.-M.) on the night of the robbery. (exhibits #21,22, and 23)

[105] I do not propose to set out all of the times that […] (O.M.) used Rogers' towers which were in close proximity to the Holiday Inn, however, from 9:31 p.m. until 11:39 p.m., […] used the towers 49 times. Mr. B's number […] connected to similarly situated towers on the night of the robbery, 23 times between 9:23 p.m. and 11:32 p.m. 911 was called by hotel staff at 11:27 p.m.

[106] T.-J.W's number […] contacted two (2) towers located at 1257 Speers Road and 2175 Marine Drive in Oakville, at approximately 11:22 p.m. The Speers Road tower was located approximately four (4) kilometres from the Holiday Inn. The Marine Drive tower was located further away.

[107] The number purported to be M.R.-M. […], contacted three towers located at 1260 Marlborough Court, 60 Old Mill Road and 2263 Marine Drive in Oakville between 9:29 p.m. and 11:23 p.m. seven (7) times.

[108] According to exhibit #25, on September 28, 2017 at 3:09 p.m., O.M.'s number contacted Mr. B's number for a period of 85 seconds.

[109] As well, O.M.'s number initially contacted S.M.'s number by text at 8:34:26 p.m. There were two subsequent text messages sent from S.M.'s number to O.M.'s number at 8:54:23 p.m. and 8:55:33 p.m. These communications pinged off a cell tower located at […]. O.M.'s residence located at […] was approximately 290 metres from that cell tower. O.M and S.M.'s numbers communicated with each other, mostly by text, 14 times between 9:57:05 p.m. and 10:18:11 p.m. These communications pinged off cell towers located in Oakville.

[110] On September 28, 2017, O.M and Mr. B's numbers were in contact with each other, 32 times. The majority of the communications (mostly by text message) commenced at 9:28:53 p.m. and ended at 11:10:32 p.m. During that period of time, 23 communications were sent while in close proximity of the Holiday Inn.

[111] M.R.-M.'s number called O.M.'s number at 9:29:07 p.m. for four (4) seconds. At 9:29:44 p.m., M.R.-M. called O.M.'s number and the call lasted 14 seconds. Both calls were re-directed into the Roger's voicemail system. These calls were made close to the cell tower located at 1260 Marlborough Court, Oakville.

[112] In cross-examination, Detective Powers agreed that on the evening of the robbery, there was no apparent cellphone communications between both M.R.-M.'s and Mr. B's numbers and S.M.'s number.

[113] At 9:31:22 p.m., O.M.'s number attempted to contact T.-J.M.'s number and went into voicemail. At 11:22:06 p.m., while the cell phone was close to a cellphone tower, located at 2175 Marine Drive, which was close to the intersection of Lakeshore Road and Third Line, Oakville, the caller had a 69 second conversation, which ended as the cellphone was close to the cellphone tower located at 1257 Speers Road, Oakville. It is worth noting that at 11:23:33 p.m., M.R-M.'s cellphone transmission pinged off the same tower located at 2263 Marine Drive, Oakville.

Backpage Advertisements and Escorts

[114] Detective Powers testified that on October 20, 2018, she reviewed the call logs and noticed quite a few unfamiliar numbers that were called on the night of the robbery. She conducted an open search of the numbers on Google. She noted that the numbers related to Backpage Advertisements that had been called by the number associated to M.-R-M. The sexual advertisements were linked to escorts in the sex trade located in Mississauga.

[115] On the date of the robbery, S.M. had a Backpage advertisement that contained her cellphone number.

[116] Detective Powers confirmed that six (6) calls were placed on September 28, 2017, between 6:57 p.m. and 8:06 p.m. to various Backpage Advertisements from M.-R.-M's Samsung Galaxy S5 Neo.

[117] According to Detective Powers' testimony, M-R.-M. called […] at 6:57 p.m. for a duration of 51 seconds, and at 7:48 p.m., he called […]. Both numbers were associated to a sex-trade worker that had advertised in Backpages. Exhibit #36 titled "preliminary results" showed that O.M.'s number called the same phone numbers at 7:51 p.m. and 8:03 p.m., respectively.

The Adult Co-accused, Mr. B

Direct Examination

[118] Mr. B was charged as an adult in relation to this robbery. At the time, Mr. B testified his charges were still outstanding and before the Superior Court of Justice, in Milton.

[119] On September 28, 2017, Mr. B was 24 years old. He was also O.M.'s surety for his recognizance of bail in another matter. Mr. B was a permanent residence in Canada. He originally came to Canada from Jamaica. He was an employee of Food Basics. Mr. B testified that he only knew the other two youths before the court as "[…]" and "[…] something." He did not know their actual names. He testified that he met O.M. though O.M.'s father.

[120] Mr. B testified, that on that day he received a call from O.M. O.M. asked if Mr. B could drive him to Oakville to meet a girl. That evening, Mr. B picked up O.M., M. R.-M. and T.-J. W. at O.M.'s residence on […]. Mr. B testified, that when he arrived at a hotel with "green lighting on top," O.M. directed Mr. B not to park in the hotel parking lot, but across the street in another parking lot. Mr. B testified that O.M. left the car and stated that he would be right back. Mr. B watched O.M. enter the hotel.

[121] After a while, according to Mr. B, he grew impatient as he had to go to work at Food Basics to start his 11:00 p.m. to 7:30 a.m. shift. Mr. B both texted and called O.M., however, O.M. did not respond initially. When O.M. finally did respond, Mr. B testified that O.M. texted him to come to the second floor and enter through a side door. Mr. B asked, or told, the two youths that they had to either come with him to the hotel, or they would have to wait outside of his car. Mr. B testified that he was not comfortable with leaving the youths alone in his car. The youths followed Mr. B through an exterior door into the hotel, which was propped open by a small canister of lip balm.

[122] Mr. B testified that the group attended the second floor and waited in the hallway for "around 15 to 20 minutes." Some people passed by as they sat on opposite sides of the hallway. While waiting in the hallway, Mr. B recalled two woman passing by his group. After waiting until "ten minutes or 20 minutes to 11:00," according to Mr. B, he decided to knock on the hotel room door, as he needed to go to work. Mr. B testified that he knocked on the door and a woman answered. He said to the woman, "please keep your noise down, because my daughter can't sleep." Mr. B testified that he said this so O.M. would see that he was outside of the room, and that he needed to leave for work. According to Mr. B, a few minutes later, the hotel room door opened, and suddenly the other two youths ran into the room and began to flip over "stuff". Mr. B observed that O.M. was holding a woman by her neck with one hand and with the other hand he held a gun to her head. The woman was on the bed screaming. She tried to get up, but was held down by O.M.

[123] Mr. B claimed that he was scared and panicked. He testified that he tried to get all them out of the room and told them to leave. Mr. B stated that the two youths left first, and O.M. remained in the room as they ran to elevators. However, they changed course and ran down the stairs through the emergency exit. As they ran away, Mr. B recalled the same two women that he had passed in the hallway, had exited their hotel room.

[124] Mr. B testified that he did not see O.M. exit the hotel room, however, he did see him holding a purse as he entered the car and drove away. According to Mr. B, he demanded that O.M. return the purse to the woman or throw it out of the car. Before O.M. threw the purse out of the car he stuck something into his pocket. The two youths did not have anything in their hands, nor did they say anything as the group drove away.

[125] Mr. B confirmed that he was wearing a blue hoodie that evening, and that his cellphone number was […].

[126] In his direct examination, Mr. B was shown results of the Cellular Phone Extraction report purported to be from O.M.'s iPhone (exhibit #33). Mr. B confirmed his identity in a photograph located on page 19 of the report. In that picture, Mr. B wore a bright green shirt with the Food Basics emblem on the right side of the shirt. He also confirmed his identity in a photograph on page seven (7) of the report.

[127] Mr. B was shown the three (3) pages of photographs created by the HRPS Technological Crime Unit taken from the hotel security video (exhibit #12). Mr. B circled a photograph of O.M. on the first page. He also circled and identified the two youths, "[…] and […]" and himself in the photographs on page two (2) of exhibit #12. Mr. B identified the blue hoodie that was seized after his arrest in exhibit #15. The YouTube video by "[…]" titled "[…]" which was exhibit #14, was shown to Mr. B for approximately twenty (20) seconds. He identified both […] and […] in the video. Moreover, Mr. B confirmed that he provided to the police the link to the video, in order to assist the police in identifying […] and […] by their real names.

[128] In direct examination, Mr. B identified all three accused in the courtroom as "[…]" (M.R.-M.) "[…] or […]" (T.-J.W.) and O.M.

[129] Mr. B testified that the handgun that he observed looked like a real handgun, but was unaware if it was an actual firearm.

Cross-Examination by Mr. Miglin on Behalf of O.M.

[130] In cross examination, Mr. B confirmed that he does not have a criminal record. In September 2017, he was working at both Food Basics and Coca Cola. Presently, he is only working at Coca Cola but operating two businesses in Jamaica from Canada. He is a father of a child that currently resides in Jamaica.

[131] Mr. B agreed that he called the police on October 16, 2017 in order to revoke O.M.'s recognizance of bail.

[132] Mr. B agreed that O.M. called him at approximately 10:00 p.m. to drive O.M. to visit a girl. He claimed that he did not suspect that O.M. was visiting an escort at a hotel. He testified that he suspected that, perhaps O.M. wanted to pick up something from the girl. He was shown the photograph of O.M. walking down the hotel hallway at 10:07 p.m. (exhibit #5(b)). Mr. B confirmed that he walked down the hallway approximately ten (10) minutes after O.M. entered the hotel. He waited approximately 20 minutes before he knocked on the door. He agreed that the time was approximately 10:45 p.m. Mr. B testified that before he entered the hotel, he had not called O.M. in order to advise him that he had to get to his work by 11:00 p.m.. However, Mr. B was shown exhibit #35, the CDR that outlined his iPhone ([…]) activity that evening. The CDR revealed that at 9:28:53 p.m. and 9:29:06 p.m., respectively, that it was Mr. B who had attempted to call O.M . This contradicted Mr. B's previous testimony, during which time he stated that O.M. called him first, in order to arrange a ride to the hotel. The evidence further revealed that Mr. B was last contacted by O.M. approximately 6 hours previously at 3:09:03 p.m.

[133] The report also confirmed that Mr. B made two (2) calls to O.M. at 10:15:14 p.m. and 10:17:14 for a duration of 55 and 16 seconds, respectively. This contradicted his earlier testimony that he did not speak to O.M. before he got out of the car and that the direction to come to the hotel room was sent by O.M. via text message. Furthermore, the activity report contradicted Mr. B's evidence regarding what he was doing in the hallway while waiting for O.M. The records show that from approximately 10:29 p.m. until 10:34 p.m., Mr. B was often texting O.M. It seemed at 11:02 p.m., O.M. sent another text to Mr. B. Mr. B responded at 11:03 p.m. The report also showed that between 11:03 p.m. and 11:10 p.m., Mr. B and O.M. engaged in frequent texting back and forth which also contradicted Mr. B's evidence.

[134] Mr. B conceded that he failed to live up to his obligations to the court as a surety when he neglected to call the police after he claimed to have witnessed O.M. commit a gun point robbery of an escort. However, he testified that since O.M.'s father was out of the country he could not revoke O.M.'s bail. But, he maintained that he told O.M.'s friend "Milton" about the robbery. Mr. B testified that he waited until O.M.'s father returned to the country, before he contacted the police to revoke the bail.

[135] Mr. B agreed with counsel's suggestion that when the two youths ran into the room, it looked like a planned event.

[136] Counsel confirmed with Mr. B that he told the police that he knew very little about handguns. He also told the court that, in the past that he wanted nothing to do with guns. However, counsel presented a picture of Mr. B seated and wearing a blue hoodie, similar to the hoodie in exhibit #15, smoking a joint and holding a handgun in his right hand. He seemed to be resting the gun comfortably on his lap. Mr. B denied that the handgun resting on his lap in the photograph was the same handgun used to rob S.M.

[137] Counsel suggested to Mr. B, that this was not the first time that he had pointed the finger of blame at O.M. for a crime that Mr. B actually had committed. For example, in August 2017 there were two street level robberies of cellphones, in Mississauga. On January 16, 2018, Mr. B was arrested and subsequently was interviewed by the police. During the interview, the police had told Mr. B that his car had been identified as being involved and that "kids" had exited the car and robbed the individuals' of their cellphones. In cross examination, Mr. B confirmed that during the police interview he told the police, that O.M. and O.M.'s brother were with him in his car driving around. Mr. B advised the police that when he stopped the car twice during a 15 minute period, O.M. and his brother jumped out of his car and committed the robberies and ran back to his car. Mr. B told the police that he had no idea that both youths were going to commit the robberies.

[138] Mr. B denied the proposition suggested by counsel, that when Mr. B was caught for both the robbery in this case, and the robberies in 2018, that his " modus operandi " was to blame it on the youth, O.M., despite being the adult.

[139] Mr. B denied that he manipulated, or used O.M., in order to commit both the robbery on S.M., and the robbery of the other victims.

[140] Mr. B denied that he set up O.M. with an escort, or gave him the money for sexual services on September 28, 2017.

[141] Mr. B denied that after O.M. engaged in sexual intercourse with S.M. that he robbed S.M.

[142] Mr. B testified the only reason that he drove O.M. to a hotel in Oakville, in order for O.M. to visit a girl for an hour or less, was because O.M. was a "good friend."

[143] Finally, Mr. B's explanation for lying, to both the police and to the court, regarding his association with handguns and firearms, was due the fact that he was "scared of what would happen, knowing that I'm already in a mess."

Cross-Examination by Mr. Vaughan on Behalf of T.-J.W.

[144] During his police interview, Mr. B told Constable Zivkovic that O.M. 'might' have called a girl on his cellphone. However, in cross examination, Mr. B testified that he "wasn't referring to the girl that it happened to that night." He was talking about another woman.

[145] Mr. B testified that after he knocked on the door and S.M. answered, he did not want to directly tell O.M. that he was late for work as he did not want S.M. to "feel bad" that he was waiting outside in the hallway.

[146] Mr. B denied that he believed the reason that O.M. was taking a lot of time the Holiday Inn was that he was doing something sexual in the room.

[147] Mr. B testified that he was not troubled, that he will be deported to Jamaica, as a result of any conviction for this gunpoint robbery.

[148] Mr. B denied that he broke into the room with a gun and robbed S.M.

[149] Mr. B also denied that he made up his story to deflect blame on the three (3) youths as he had in the past robberies that involved O.M. and his brother.

[150] Finally, Mr. B denied that he was proud of his criminality by taking pictures of himself smoking marijuana and carrying a handgun.

Cross-Examination by Mr. Morrison on Behalf of M.R.-M.

[151] Mr. B confirmed that he never had any discussions with M.R.-M. and T.-J.W. concerning a trip to a hotel. Mr. B claimed that the youths just happened to be in O.M.'s company the night he drove O.M. to Oakville. Mr. B agreed that there was consistent cellphone communication between himself and O.M.

[152] Mr. B reiterated that O.M. called a girl on his cellphone, but he could not be certain who he called.

[153] Counsel suggested that Mr. B was motivated to fabricate his evidence to avoid being deported after serving a lengthy jail sentence. Moreover, if he was deported after being imprisoned, Mr. B would not be able to provide financial support to his child in Jamaica. Mr. B responded that he was an enterprising man that could still operate a rental business in Jamaica.

[154] A Jamaican proverb was put to Mr. B by counsel that when translated meant: when someone is in trouble they will do anything to get out of that trouble . Mr. B was familiar with the proverb. But, he testified that he did not deflect attention away from himself, and point the finger of blame at the three (3) youths, in order to get out of his own tribulations.

[155] Mr. B testified that he never planned a robbery with "[…] or […]."

[156] Mr. B disagreed with the suggestion, that since he was going to be late for work, he had that kind of "pull" and could have just left O.M. behind and gone to work. Ironically, Mr. B stated that if he left O.M. at the hotel, he would have been shirking his responsibilities to the court, as O.M.'s surety.

[157] Mr. B agreed that his presence at work by 11:00 p.m. was critical for his company since he was a supervisor. He was responsible for unlocking the doors to the Food Basics store, in order to allow the night shift to enter the premises. Since that was the case, counsel suggested that when Mr. B knocked on the door, he told the "lady to hurry up". Mr. B denied that suggestion. However, his statement to police contradicted his testimony on this point. At page 48 of Mr. B's police statement, he told Constable Zivkovic that he "knocked on the door and told the lady to hurry up".

[158] Mr. B admitted that he lied to the police when he told Constable Zivkovic that he had no idea what had happened to S.M.'s purse. But, later in his statement he did acknowledge that he was aware that S.M.'s purse was thrown from the car as they drove away.

[159] Mr. B denied that he knocked on S.M.'s door in order to scope out the room before he robbed S.M.

[160] Mr. B disagreed with counsel's suggestion that "[…]" or M.R.-M. did not enter into the hotel room.

Re-examination

[161] Mr. B clarified his testimony regarding the blue hoodie that he wore when he was arrested. He testified that was not the same blue hoodie that he wore the night of the robbery as seen in exhibit #5(b) page eight (8). Mr. B testified that he owned two blue hoodies that were similar but one was lighter than the other.

[162] Although he admitted in cross examination that he used the words "lady hurry up" to the police in his statement, Mr. B still denied that he told S.M. to hurry up when she opened the door. He stated to S.M. "keep the noise down" in order to convey the message to O.M. that he needed to hurry up.

Positions of the Parties

The Crown

[163] The Crown submitted that the three youths, in association with Mr. B, robbed S.M. at gun point. S.M. was a strong witness and unwaivered in her description of the events. S.M. clearly identified O.M. as the client in a photograph line up that was unchallenged.

[164] The Crown conceded that Mr. B minimized his involvement in the robbery. There was no evidence that suggested that Mr. B gained anything from his testimony against the youth co-accused. At the time that he testified, he faced charges that were set for trial in the Superior Court of Justice.

[165] The Crown acknowledged that Mr. B was inconsistent in some of his testimony. A few inconsistencies were more significant than others. The Crown pointed out that if the Crown's case was predicated primarily on Mr. B's evidence then the Crown would have faced significant challenges. However, much of Mr. B's evidence was corroborated by S.M. and to a certain extent by the admissible portion of Ms. Henderson's statement. As well, other aspects of Mr. B's evidence were supported by the security video.

[166] There was corroborative evidence through the security camera surveillance that showed three (3) young black men were in the hotel at the time of the robbery. The video corroborated the fact that a solo black male entered first. This evidence was not conclusive of identity standing on its own, however, it was circumstantial evidence of the events and the number of men involved.

[167] The photograph of the beds turned over, the room ransacked and the photograph of S.M.'s injuries were corroborative of S.M.'s testimony.

[168] The Crown submitted that the phone records, raw data and the testimonial aids entered as exhibits, were all circumstantial pieces of evidence demonstrated that the youth co-accused were in the vicinity at the time of the robbery.

[169] The Crown argued that there was ample evidence that connects the youth co-accused together. In particular, the extraction reports of O.M. and M.R-M.'s cellphone and the rap video "[…]".

[170] The Crown submitted that the following evidence proved that number […] and the Samsung Galaxy S5 Neo that was seized, belong to M.R.-M.:

i. The cellphone was seized incidental to M.R.-M.'s arrest.

ii. M.R.-M.'s mother "S" was listed in his contacts in the phone. Detective Power spoke to "S" when she arrived to assist her son, when he was in detention at the police station.

iii. The call report on the phone matched the times on September 28, 2017 to the call logs in the phone extraction.

iv. The phone extraction report indicated the "unlock" pattern, the backup pin code, user accounts, the Snap Chat application and Facebook in the phone were in the name "[…]".

[171] Finally, on the issue of identity, the Crown submitted that there was overwhelming evidence of the identity of all parties. The Crown pointed to the seized clothing items that were similar to the clothing worn by the suspects on the security camera video. Mr. B testified to the identities of O.M. and the nicknames of the other two youths, "[…]" or "[…]" and the first name "[…]".

The Defence

O.M.

[172] Counsel for O.M takes the position, as has counsel for T.J.W and M.R.-M., that the Crown has not proven beyond a reasonable doubt the critical element of identity. In other words, the Crown has not met its burden that the three youths were present at the hotel and participated in the commission of a gunpoint robbery.

[173] However, counsel for O.M. conceded that if the Crown has met its onus on proving that O.M. was present in the hotel room, the court should find O.M. guilty of procurement for consideration sexual services, (count #3) and breach of his recognizance of bail (count #10). However, the court should dismiss the robbery, uttering a death threat, and the weapon related charges.

[174] Counsel submitted that the court should not be satisfied beyond a reasonable doubt that the iPhone alleged to be O.M.'s was in fact O.M.'s iPhone. Counsel suggested that there was no evidence led by the Crown that established how the police came into possession of the iPhone. Furthermore, the extraction report for the iPhone indicated that the activation date was October 18 th , 2017. There was no confirmation that the iPhone was even used on September 28, 2017.

[175] Counsel contended that the court should approach Mr. B's evidence with extreme caution and reject his testimony entirely. He should not even be considered a Vetrovec witness because his credibility and reliability was lower than a Vetrovec witness. According to counsel, Vetrovec witnesses usually admit that they were involved as an accomplice and then they detail how the crime was planned and committed. Counsel argued that since Mr. B did not admit that he planned and participated in the robbery and deflected blame on the youth co-accused, his testimony was on the same unsavory level of a "jail house rat". Counsel, however, acknowledged the Court of Appeal's rejection of categorizing unsavory witnesses along the lines of a Vetrovec warning. Nevertheless, I am urged to disbelieve Mr. B's evidence.

[176] A unique feature to Mr. B as a witness was the fact that even though he proclaimed his lack of knowledge of a robbery during this trial, the Crown must not actually believe his story of feigned ignorance, since he still faced prosecution by the Milton Crown Attorney's office in the Superior Court of Justice for the same offences. Counsel argued that there a degree of hypocrisy in the Crown's position regarding how the court ought to treat Mr. B's evidence. For example, the Crown wants the court to reject Mr. B's evidence when it does not serve the Crown's purpose, but only accept the evidence that supports the Crown's theory without any corroboration. The court was pressed to reject this approach in assessing Mr. B's evidence. In fact, counsel implored the court to completely reject Mr. B's evidence, and to simply "put it in a box, tie a bow around it and put it to the side". Mr. B lied to the police in his exculpatory statement and to the court in his testimony. For example, the court should find that Mr. B lied about his familiarity with handling firearms. Mr. B denied handling any firearms beyond a 'chicken gun' in Jamaica. Counsel presented a photograph of Mr. B smoking a joint with one hand and resting a firearm on his lap with his other hand.

[177] Counsel contended that the court should not examine or even look for any corroboration of Mr. B's testimony since he has absolutely no credibility. However, if the court was to consider any of his evidence, defence argued that since Mr. B was eight (8) years older than the youths, it was comical to suggest that Mr. B was duped into driving the youths to the hotel. The notion that Mr. B, 24 years old, had come to court and testified that the youth that he was the surety for, somehow tricked him, into participating in a robbery according to counsel, defied common sense.

[178] Counsel also argued that there was "an issue of providence or origin" of the white cell phone which was associated with cell number […], that was alleged to be O.M.'s cellphone that he used on September 28, 2018. In other words, the Crown has not established how the white iPhone came into police custody. Defence conceded that there was satisfactory evidence of continuity of the iPhone after it came into police custody. However, no evidence was led that explained how the iPhone came into the police possession. Constable Paroshy testified, after O.M.'s arrest that he was handed a plastic bag that contained O.M.'s property. He did not do an inventory of the contents of the bag. There was no evidence that there was an iPhone in the bag. Constable Paroshy testified that Constable Wathen took custody of O.M.'s property bag at the police division. Constable Moss, the booking officer, testified that he itemized the contents of the property bag and confirmed that an iPhone was with O.M.'s property. Finally, Constable Zivkovic attended the division and seized the iPhone found in O.M.'s property bag. There was strong continuity evidence, however, there was no testimony or evidence, as to how the iPhone came into police possession.

[179] Counsel conceded that it would not be a reasonable finding on the evidence that the complainant S.M., made up a story that she was robbed at gunpoint, however, counsel contended that S.M. did have credibility and reliability issues. For example, the court was asked to consider her to be a dishonest witness since she lied to hotel staff and guests, that the persons that ran away from her room were friends of hers. S.M. admitted that she told this untruth in order to protect her privacy.

[180] Counsel's second submission that S.M.'s evidence lacked credibility centered on her abject belief that she was positive about what had happened to her and who was responsible. Counsel intimated that this was due to S.M.'s attitude, and her "over preparedness" ever since she read and studied her statements before she testified. The logical extension of counsel's argument was that S.M. was not prepared to come to court and to give her best account of what had occurred to the extent that she could not, or would not, accept that there were issues and fragilities in her recollection. According to counsel, it seemed incongruous that S.M. recalled vivid details given the enormous trauma that she experienced during the robbery.

[181] Counsel argued that the reliability of S.M.'s evidence was undermined when she struggled in cross examination regarding the following:

i. Whether she closed the door on the client's leg.

ii. Whether she actually witnessed the gun being passed from one person to the other.

iii. The number of parties that entered her room (two (2) or three (3)).

iv. Where the parties were standing.

v. How the gun was used.

vi. How the purse was taken.

[182] Counsel submitted that the police led photographic line-up, wherein S.M. identified O.M., was problematic. Counsel stated that S.M. was tainted the moment the police showed her a still image purported to be of O.M. while she was being interviewed in the hospital. But, on the other hand, counsel did not concede that O.M. was the person in the still image taken from the hotel security system.

[183] Counsel claimed that since S.M. conflated a text and telephone conversation with two different persons that this demonstrated difficulties with S.M.'s memory. For example, initially S.M. believed that the person she spoke to on the phone had an Indian accent but when she met with the client he had a Jamaican accent. This was difficult to accept, since she had a Jamaican boyfriend at the time and claimed to be well versed in distinguishing the differences in accents. Furthermore, she seemed to be too consistent in her assessment of "typical black" features. For example, she described that black people often have a wider nose. When she identified O.M. in the photograph line up she stated that he had a typical black feature, a wide nose. However, in her examination in chief, S.M. stated that the client had typically un-black features.

[184] With respect to the grey hoodie that was seen in the security video, and the grey hoodie that was seized at O.M.'s residence, the only consistent characteristic was the colour. The vest that was seized and observed on the video was a little more similar. Counsel acknowledged that given the characteristics and the colour of the vest, it was particularly more distinct. However, counsel pointed that S.M. described the vest as beige in colour, not grey and that it did not have a pattern. Counsel also argued that S.M.'s description of the gold chain with an emblem cannot be said to match the object seized from O.M.'s residence. There was no evidence led as to the size of the emblem. The emblem that was seized had a distinctive logo. However, S.M. never testified that the emblem that she observed hanging from the client's chain had a logo imprinted on it. The gold iPhone case that was seized, according to counsel was more pinkish in colour. Furthermore, although S.M. said one of the two phones that the client possessed had a gold case, there was nothing more distinctive about the case such as a pattern or image. S.M.'s description of the phone case did not add much to the issue of identity given her generic description.

[185] If I am convinced beyond a reasonable doubt that O.M. was the client, counsel argued that I should still find his client not guilty of robbery. The sum of cash for S.M.'s services was left behind on the table by the bed after the robbery. Counsel argued that if, O.M., was aware of or a part of the planning and participated in facilitating the commission of the robbery (i.e. Texted the others to enter the room and held the door open) why did O.M. not take the money when he left.

[186] If I choose not to rely on Mr. B's evidence, counsel pointed out the only other witness to the robbery was Ms. Henderson. Although I found her statement met threshold reliability, counsel submitted that I am not bound to make certain findings of fact. For example, did Ms. Henderson observe that it was O.M. that ran out of the room holding something in a grey sweater? Moreover, counsel argued that Ms. Henderson's descriptions of the four (4) assailants was very different and inaccurate.

[187] Counsel contended that there was no reliable evidence that O.M. remained in the hotel room and committed the robbery with a gun. He posited that Mr. B, the adult, was the culprit that entered the room and committed the robbery.

[188] Finally, based on all the evidence, and the fact that a firearm was never located nor was it discharged or "racked" at the time of the robbery, the Crown has not proven beyond a reasonable doubt that the firearm was functioning. Counsel submitted that S.M.'s description of the handgun, was as consistent with the same characteristics of an imitation handgun.

T.-J.W.

[189] Counsel for T.-J.W. suggested that overall, there was much less evidence against his client. For example, there was no evidence that the phone attributed to T.-J.W. pinged off the tower closest to the Holiday Inn on September 28, 2017. The phone pinged off a cell tower located on Marine Drive, Oakville which was near the border between Mississauga and Oakville, approximately 20 minutes after the robbery. Counsel argued that the fact M.R.-M.'s phone pinged off a different tower on the same road, at approximately the same time did not mean that they were necessarily together. Counsel argued that given the urban setting and the number of cellphone towers in the area, signals could have been bouncing off different towers due to natural or man-made obstructions.

[190] Counsel pointed out that the Crown had suggested that it was difficult to accept material aspects of Mr. B's evidence and that at times he was neither reliable nor credible. Not surprisingly, counsel asked me to completely reject Mr. B's evidence.

[191] With respect to the grey hoodie and the size-13 running shoes seized at T.J.-W's residence, counsel submitted that the Crown did not establish that those items were worn by the individuals seen in the hotel security video surveillance. There was no evidence led regarding T.J.-W.'s shoe size or anything distinctive about the grey hoodie. Therefore, counsel argued that the clothes and the phone evidence were not evidence of anything.

[192] Counsel conceded that "[…]" was his client and Mr. B correctly identified T.J.-W. as "[…]". However, since there was no physical or forensic evidence that was led that assisted the Crown in proving identification, counsel argued that I am only left with Mr. B's evidence to assess. Counsel maintained, as have the other counsel, that Mr. B perjured himself. Furthermore, Mr. B had everything to lose if he did not lie under oath. Counsel argued that Mr. B had a motive to fabricate his evidence and shift the blame: He did not wish to be deported back to Jamaica nor serve a Federal penitentiary sentence.

[193] Alternatively, if I chose not to completely reject Mr. B's evidence and still consider his poorly constructed story worthy of belief, counsel pointed to some truthful aspects of his story that I should accept. For example, counsel argued that Mr. B's evidence that he insisted that the two youths, M.R.-M. and T.-J. W. exit his car and follow him into the hotel, should be accepted. Counsel pointed out that the constant texting between Mr. B and O.M., while O.M. was in the hotel, evidenced the fact that Mr. B grew impatient and no longer wanted to wait. Mr. B's insistence that the two youths either wait outside of the car or come into the hotel, according to counsel, demonstrated an absence of deliberation and planning in terms of the two youths. According to Mr. B, the reason he refused to allow the youths to remain in his car was due to his unfamiliarity with the youths. Consequently, counsel submitted that it was unlikely that Mr. B would have planned a robbery with two youths that he was barely acquainted with.

[194] Counsel submitted that Mr. B described that both youths wandered around the hall, rather than waiting for the hotel room door to open, which demonstrated youth's impatience and also their lack of planning.

[195] Counsel posited what really occurred that evening was that Mr. B "busted in" after O.M. left the room and robbed S.M.

[196] Counsel argued that S.M.'s evidence lacked reliability due to her conversations that she had with hotel staff and Ms. Henderson before she provided a statement to police. Furthermore, S.M. testified that there were three (3) persons in her hotel room when she was robbed, nonetheless counsel argued that since Ms. Henderson saw three persons running from the hotel room and a single individual remained with S.M. inside the hotel room, the fourth person did not go into the room. If that was the case and I find as a fact that the fourth person did not enter the room, counsel submitted that the fourth person was his client.

M.R.-M.

[197] Counsel for M.R.-M. submitted that the evidence presented by the Crown, did not make out the essential element of identifying M.R.-M. beyond a reasonable doubt. Alternatively, if the court is satisfied beyond a reasonable doubt that the Crown has established the identity of M.R.-M., the Crown has failed to prove the essential elements of knowledge and intent.

[198] Similar to the submissions made by counsel for O.M., counsel argued that Mr. B's evidence was neither credible nor reliable. He was a disreputable and unsavory witness. Furthermore, since Mr. B was an accomplice, his evidence fell into the category of testimony that may be said to be inherently untrustworthy.

[199] Counsel submitted that Mr. B possessed many untrustworthy characteristics typically found in an accomplice's circumstances. For example, he was an accomplice in respect to the very same allegations in the case at bar. His testimony was clearly designed to deflect blame on the others. He testified that when he gave a statement to the police he "was scared of what could happen knowing the mess I'm in". Therefore, it seemed that he contemplated that he had something to gain by assisting the police and eventually testifying for the Crown. Counsel contended in his written submissions, that Mr. B did not merely minimize his participation but totally "sanitized his role as a hapless bystander who just happened to be at the wrong place at the wrong time on account of his kindness and commitment to honour his promise."

[200] Counsel submitted that Mr. B's story that he was a de facto taxi driver, was farfetched and not worthy of belief. Furthermore, his assertion that his entire involvement was to keep a promise to drive his friend O.M. to the hotel that day, should not be believed.

[201] Moreover, Mr. B's claim that he had to wait for O.M. while he was in the hotel, and that he grew impatient as he had to attend for work at Food Basics, was another falsehood. Moreover, it seemed incongruous to spirit O.M. and the others, away from the scene, after his "charge" was involved in a violent robbery, but Mr. B still made to work, albeit late.

[202] As the surety for O.M., Mr. B's compliance with all of O.M.'s requests that evening, such as, driving Mr. B to the hotel to meet a girl, coming up to the room, not walking by the front desk, and then driving him away from the robbery, were inconsistent with his role as the O.M.'s supervisor while on bail.

[203] Furthermore, Mr. B's commitment to arriving at his work place on time, did not accord with his actions. It did not make sense that he needed to leave his car and attend to the second floor of the hotel, if he was in such a hurry to get to work. Counsel submitted that Mr. B's behavior was more consistent with actually having business in the hotel.

[204] S.M. contradicted Mr. B's assertion that he was merely an observer of the robbery. S.M. stated that the person that wore the blue hoodie passed the gun to the client. S.M. indicated that the same person knocked on the door before the robbery.

[205] Counsel pointed out that Mr. B perjured himself when he lied about his knowledge and handling of guns, after he was confronted with a picture of himself holding a gun and smoking marijuana.

[206] Counsel submitted that due to the poor quality of the hotel security camera footage and the stills, a reasonable observer cannot make out the identity of the four (4) males depicted in the hallway. This evidence was not conclusive of identification. Since the video was silent on what individuals did with respect to the events that occurred in the hotel, this evidence, at its highest, demonstrated presence and association, but did not permit any inference to be drawn with respect, what if, any role any of the persons played in the occurrence.

[207] Counsel argued that the only direct evidence that places M.R.-M. at the scene came from Mr. B. There was no other appreciable evidence that established the elements of identity, knowledge and intent.

[208] With respect to S.M.'s testimony regarding the number of assailants that entered the room, counsel argued that S.M. was less than equivocal that there were four (4) individuals in the hotel room. Although she was steadfast in her claim that the client used the gun and the person with the blue hoodie passed him the gun, she was less certain about whether there was one or two other persons involved. Furthermore, other than describing the other persons, or person, as black, S.M. could not provide any other characteristics. Finally, S.M.'s testimony did not assist the Crown in establishing the identity of M.R.-M. as a participant in the robbery.

[209] With respect to the cellphone tower data and call logs as they related to M.R.-M., counsel submitted that this evidence "only" established that the cellphones were in the general area at the time of the robbery, and did not pinpoint the actual location of the cellphones. Moreover, counsel did not concede that the Samsung Galaxy S5 Neo was his client's. Counsel admitted that at the highest, the phone records, only as they related to M.R.-M., suggested a reasonable inference that M.R.-M. had access to the Samsung Galaxy S5. Even though it was seized incident to his arrest, counsel argued, that the court cannot draw the inescapable conclusion that the iPhone was M.R.-M.'s iPhone. However, counsel submitted that the iPhone "could" be his phone, but the frailties in Detective Constable Craig Fallis' evidence regarding the Samsung Galaxy S5 Neo, suggested that the court was estopped from reaching that conclusion. Counsel raised the following points in Detective Constable Fallis' testimony:

i. The Samsung Galaxy S5 Neo unlike the iPhone, was not locked to a particular account or user profile. In fact, there were 36 user profiles on the cellphone. There was no evidence led that established the creation times for these multiple user profiles.

ii. Besides "[…]" in the user profile, there were other user profiles on the iPhone including, RV101, B.D., S.H. and C.D. These user profiles accessed the various services on the cellphone at different points in time. The data files on the cellphone were not linked to any particular user profile.

iii. The various images located on the cellphone did not have any information regarding the date when they were created, modified or accessed on the cellphone. The various images were not linked to any particular user.

iv. The extraction report showed a creation time for user B.D. on September 28, 2017, which bore no likeness or connection to "M" but nevertheless performed actions on the Samsung Galaxy S5 Neo.

v. The extraction report was generated by analysis of the cellphone and not the SIM card.

vi. A SIM card can easily be swapped out. The activation time for this cellphone was April 21, 2017. The extraction report did not assist in identifying any user profile or what was on the cellphone on the date of activation. The last activation time on the cellphone was October 1, 2017 and the SIM card change time was October 3, 2017.

[210] Finally, counsel argued that with respect to the cellphone evidence and Detective Constable Fallis' testimony as it related to the Samsung Galaxy S5 Neo that was found on M.R.-M. at the time of his arrest, it was impossible to conclude that at the time of the robbery, on September 28, 2017, the cellphone was actually being used by M.R.-M.

[211] Counsel submitted that the voice recognition evidence provided by Detective Powers regarding her opinion that she heard M.R.-M.'s voice on the voice mail recording of the Samsung Galaxy S5 was so suspect that it cannot be relied upon.

[212] With respect to M.R.-M.'s cellphone number that was linked to several Backpage Advertisements on September 28, 2017, counsel submitted that there was no evidence that M.R.-M. contacted S.M.'s cellphone. Furthermore, that the contacts were all made to escorts in Mississauga and not Oakville. The last call from the Samsung Galaxy S5 an hour before robbery, was made to an escort in Mississauga. Counsel argued that the court cannot rule out the alternative explanation that other users of the phone may have been in the habit of contacting escorts. It would be speculative to conclude that the efforts to contact escorts, was probative of any issue in the case or in any way connected to the robbery of S.M.

[213] Counsel argued that there was an absence of physical evidence, fingerprint, or forensic evidence that linked M.R.-M. to the hotel room and the robbery.

[214] The search warrant that was executed on his residence did not uncover any clothing that matched similar clothing worn by the suspects depicted on the hotel security camera video or still images. Moreover, none of the complainant's stolen property was located in his residence.

[215] Mr. B testified that he never saw M.R.-M. interact with S.M. nor did he possess any of S.M.'s belongings.

[216] Counsel argued that even if the court found that M.R.-M. was present at the robbery and fled from the scene, the circumstances did not lend itself to a reasonable inference that M.R.-M. had knowledge and intended for the robbery to have occurred. M.R.-M's flight from the scene was equally consistent with the common sense inference that he panicked due to what he had observed, and that any reasonable person would not have waited around.

[217] Counsel further submitted that the cellphone connection between M.R.-M. and T-J.W., their rap video, and O.M. listed as a Snapchat contact in M.R.-M.'s cellphone, taken at its highest only meant that they knew each other. However, their limited association did not lend itself to any inference that the youths, concocted a plan, or implemented any scheme to rob S.M. with a firearm. The Crown failed to produce any text messages, Facebook messages or any information that demonstrated any plan to commit a robbery.

[218] Counsel submitted that with respect to the volume of cellphone data, the Crown can only point out that on September 28, 2017, the Samsung Galaxy 5S Neo ascribed to M.R.-M., communicated with O.M.'s cellphone for a 3 second period at 9:28 p.m. and then for 14 seconds at 9:29 p.m.. There was no further cellphone activity between the Samsung Galaxy 5S Neo and any other suspects' cellphones. In fact, there was no evidence presented by the Crown that the Samsung Galaxy 5S Neo prior to the night of the robbery had communicated with O.M.'s cellphone or Mr. B's cellphone.

[219] Counsel argued that if the court determined that the element of identification was made out, it would be an impermissible leap to conclude that at the time, M.R.-M. was possessed with the knowledge that a robbery with a firearm was about to occur. It was further advanced by counsel, that M.R.-M. just being present at the scene and "hanging out with his friends" should not lead to an inference that he had knowledge about the robbery. In fact, counsel pointed to Mr. B's evidence that there were no discussions inside the car about a robbery. As well, Mr. B testified that he was the one that insisted that T.-J.W. and M.R.-M. leave the car and either remain outside of his car or attend with him to the second floor of the hotel. Mr. B always maintained the following:

1. He received direction from O.M. to attend the second floor and the hotel room.

2. He received text message from O.M. not to walk by the front desk but enter through a propped open side door.

3. M.R.-M. and T.-J.W. followed him to the hotel room.

4. He decided to wait near the hotel room, and M.R.-M. and T.-J.W. just waited with him in the hallway.

[220] Finally, as all counsel have argued in this case, the Crown has not proven beyond a reasonable doubt that a firearm was used in the commission of the robbery. Moreover, counsel submitted that there was no evidence that his client used, or was a party, to the use of an imitation firearm in the commission of an indictable offence. Based on the evidence presented that here was no reasonable inference that could have been drawn that M.R.-M. had knowledge or intent in respect to the use of an imitation firearm.

Analysis

General Principles and Findings of Credibility and Reliability

[221] In R. v. K.B., [2015] O.J. No. 2833 at paras. 28-30, Justice Hill commented on the need to for a trial judge to recognize the distinction between positive findings of credibility and proof beyond a reasonable doubt. Reasonable doubt can survive even when the complainant is credible and therefore a trial judge must recognize that the W.(D.) analysis does apply in criminal trials even where the accused does not testify. Where "credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard": R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8. What has come to be known as a W.(D.) direction, or its functional equivalent, relating the standard of proof to witness credibility fulfils this obligation. In R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-58, the court stated:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

[222] Without an accused testifying, evidence favourable to the defence may be grounded in evidence called by the defence or through the testimony of prosecution witnesses. Such evidence may engage the trier of fact in important credibility determinations respecting contradictory evidence. At paras. 37 and 39 of R. v. Smits, 2012 ONCA 524, the court stated:

There is now no doubt that in light of this court's decision in R. v. D.(B.), 2011 ONCA 51, at para. 114, that, even if an accused does not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the evidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the trier of fact in a state of reasonable doubt as to the accused's guilt. In that event, the trier of fact must acquit.

Trial judges in a judge alone trial do not need to adhere slavishly to the W.(D.) formula. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction: see R. v. Minuskin (2000), 68 O.R. (3d) 577 (C.A.), at para. 22.

[223] The Supreme Court of Canada stated that, "Assessing credibility is not a science….[I]t may be difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile various versions of events….While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize….In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization": R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 48-49, and see R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 128 and R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 29.

[224] The court may believe all, none or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 827 at para. 14; D.R. et al. v. The Queen (1996), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result) at 318; R. v. M.R., 2010 ONCA 285 at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at para. 5; R. v. Abdallah, [1997] O.J. No. 2055 (C.A.) at para. 4, 5. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, [2005] O.J. No. 39 (C.A.) at para. 44.

[225] However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439 at 453-4; Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.) at 8. Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 18 O.R. (3d) 509 (C.A.) at 517 (leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 290, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at para. 8, 9; R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4.

[226] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom -- this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.) at paras. 55-57. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.) at para. 66; R. v. Smith, 2010 ONCA 229 at para. 11; R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.) at paras. 28-30; R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.) at 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 123 O.A.C. 161 (C.A.) at 172.

[227] In considering whether the circumstances of a particular witness tend to make the credibility and/or reliability of their testimony sufficiently suspect to attract a caution or warning as to unconfirmed reliance on his or her evidence, a trial court will inevitably look to whether the witness' evidence incriminates the accused, the depth of the taint or concern as to the prosecution witness' trustworthiness, and, the relative importance of the witness to the Crown's case: R. v. Johnson, 2011 ONSC 195, [2011] O.J. No. 317 at 127.

[228] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect -- the evidence should, however, be capable of restoring the trier's faith in the complainant's account: R v. Kehler (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 (leave to appeal refused, [1997] S.C.C.A. No. 461, [1998] 1 S.C.R. vi).

Credibility of S.M.

[229] I found S.M. to be a very credible witness. She gave her evidence in a very intelligent manner, which demonstrated to me that she recalled these traumatic events accurately, to the best of her ability. I reject counsel's assertions that S.M. 'over prepared' her testimony to the extent that she could not accept any suggestion that she may have been inaccurate in her recollection. Her account was logical, internally consistent and rich with examples of particular detail which suggest that her account was the product of her actual memory. In my view, she was not shaken in cross-examination on any material detail. There were very few inconsistencies in her testimony.

[230] The Crown asked me to find that S.M. was a credible witness since she had no motive to lie or fabricate her testimony. I agree with the Crown's submission, however, I must consider this a neutral factor. The transformation of the absence of evidence of a motive to fabricate into a proven lack of motive is an error. The Ontario Court of Appeal in R. v. Bartholomew, 2019 ONCA 377, May 7, 2019, pointed out that "a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth…However, problems occur when the evidence is unclear – where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all" (Bartholomew, at paragraphs 21 and 22).

[231] The Court of Appeal indicated that as a result there is a "significant difference between absence of proved motive and proved absence of motive" (at paragraph 23):

…The reasons are clear..."it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth." This point was made in L.L., in which Simmons J.A. said, at para. 44: "the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate."

[232] Nevertheless, S.M. was a completely independent witness, having only met the client that evening and never having met the youths.

[233] The defence conceded that S.M. was robbed at gunpoint, but questioned her reliability as a witness. I find that S.M. was a reliable witness for the following reasons. S.M. spent approximately a half hour in the hotel room with her client. She recollected details that were corroborated by other evidence. For example, the hotel security video was not conclusive of the issue of identity, but was circumstantial evidence that supported the existence of three (3) young black males present in the hotel after a lone black male entered the hotel proximate to the times that events occurred. The police photograph of S.M.'s abrasions to her mouth and bruising to her neck (exhibit #30), in my view, were consistent with a gun being forced into her mouth and hand(s) on her neck and throat area, as she described in her testimony. Her testimony regarding the actions of the assailants that entered and ransacked the room were corroborated by the police photograph of the state of the hotel room (exhibit #4(a) pages 4-7). The phone records for all three youths and Mr. B placed all individuals in the vicinity at the approximate time of the robbery (exhibits #25, 26, 27 and #28). The CDR for O.M.'s phone number supported S.M.'s evidence that she was contacted by O.M.'s phone number that evening. The first contact from O.M.'s phone number was at 8:30 p.m. The constant communication between O.M.'s phone number and S.M. between 9:57 p.m. and 10:18 p.m. was consistent with S.M.'s testimony regarding the timing and frequency of communication between herself and the client. This extrinsic evidence supported S.M.'s evidence on the time that the client arrived. It also demonstrated that O.M.'s phone was pinging off the cell tower located at 60 Old Mill Road in Oakville.

[234] The inconsistencies which the defence pointed to in S.M.'s evidence were in my view of little significance and had no impact on the essential accuracy or truthfulness of her allegations. For example, counsel argued that S.M. was uncertain about whether two (2) or three (2) entered the room. In her examination in chief, S.M. testified that after the client stuck his foot in the door in order to keep it open, S.M. witnessed three (3) people rush into the room, including the black male that wore the blue hoodie. In her police statement, S.M. stated that two men showed up at the door. In cross-examination, she agreed that she could not be certain if two (2) or three (3) entered the room. In my view, this inconsistency did not undermine S.M.'s overall reliability as a witness. Ms. Henderson observed three males exiting and one male remained in the room choking S.M.

[235] S.M. stated she believed that the purse was taken from underneath the pillow by one of the intruders and later she testified that the client had taken it. To the extent that this was a contradiction, I do not consider it to be a material one. I also do not consider that her uncertainty of where individuals were standing when she was being choked and assaulted with a handgun to be problematic, rather I consider this to be understandable given the circumstances. Likewise, I am not persuaded that S.M.'s credibility is by her not having stated in her previous statements to the police that she actually observed the handgun being passed from the male in the blue hoodie to the client, but rather that she "believed" she saw the gun being passed. I accept her testimony that she saw a handgun passed to the client. In my view, she was unequivocal about what she saw. It is important to note that English was not S.M.'s first language. Moreover, the statement "I believed" does not necessarily connote uncertainty regarding an observation: indeed it amounts to an assertion of belief, which I accept to have been held. Counsels' suggestion to S.M. that she closed the door on the client's foot was based on speculation. Regardless, it was a suggestion that she rejected. I do not believe that she closed the door on the client's foot. If I accept that S.M. conflated her text and voice conversations with a person with an Indian accent rather than the Jamaican accented client, I am not persuaded that this is a material inconsistency. S.M. testified that the client had a Jamaican accent.

[236] Counsel suggested that there was an anomaly within the photographic line up process to the extent that S.M. was tainted when she was shown screen grabs three (3) weeks earlier, which were taken from the hotel security surveillance system of the individuals allegedly responsible for the robbery. Before I comment further on this issue, it should be noted that counsel for O.M. did not argue that the photo line procedure was incorrectly administered or executed.

[237] The policy used by HRPS in administering photo line-ups was not in evidence. I am mindful of the Sophonow Inquiry Protocols in analyzing the evidence. The Court is also cognizant of the reminder in R. v. Pelletier, 2012 ONCA 566, 291 CCC (3d) 279, at para 94 that:

...the recommendations of the Sophonow Inquiry about the manner in which photo line-ups should be conducted are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification, but they are neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight: R. v. Goulart-Nelson, [2004] O.J. 4010 (C.A.), at para. 11; R. v. Grant, 2005 ABCA 222, (2005), 198 C.C.C. (3d) 376, at para. 6; and R. v. Doyle, 2007 BCCA 587, at paras. 12-13.

[238] In the case at bar, Detective Constable Feddema provided S.M. with a copy of their Photographic Line-Up Direction (exhibit #6 "Photo Line-up Direction"). S.M. received a copy of the HRPS Photo Line-up Direction prior to participating in the photo line-up. For completeness, all twelve (12) of the points listed in the HRPS Line-up Direction are listed here because as they are relevant to this analysis:

Facilitator: Read sections 1, 2, and 3 to the witness prior to the commencement of the viewing.

1. You are about to view a number of photo images.

You must know and understand that:

• The people whose images you are about to view may not have been convicted of a criminal offence;

• The photo image of the person responsible for this crime may not be included in the images you are about to view;

• It is just as important to clear innocent persons from suspicion, as it is to identify the suspect;

• Certain features such as head and facial hair are subject to change;

• Regardless of whether you do or do not make an identification of the suspect, the police will continue to investigate this crime.

2. You will be shown the photo images one at a time:

• Take as much time as you require viewing each photo image;

• After you examined an image, indicate the results by circling the appropriate response on the back of the photo (Yes or No) write the number of the photo (meaning the order in which you have viewed it) and add the date and your initials;

• This photo line-up procedure is being recorded and any additional comments you choose to make during the process will also be captured;

• Once you have eliminated a photograph you will not be allowed to view it again;

• You are required to view all of the photo images presented in this line-up;

• At the conclusion of this photo line-up viewing, you will not be provided with any information concerning the results of the viewing;

• Please do not discuss this identification process or any aspect of this investigation with any other person.

Note to Facilitator:

• Every effort should be made to record the entire line-up procedure on digital video; where circumstances will not all that, the process should be at minimum audio recorded.

• Every effort should be made to have the line-up conducted by an officer who is unfamiliar with the investigation and identity of the suspect. If that is not possible, the following instruction must be given to the witness:

It is import to the integrity of the photo line-up process that I do not see the photos while you are viewing them.

[239] Constable Feddema was not involved in any other capacity during the investigation other than administering the photo line-up. He testified that he was unaware of the identity of the suspects. He confirmed that S.M. was shown twelve (12) photographs that were inside separate envelopes. The photo line-up was videotaped. S.M. selected and signed photograph seven (7) which was a photograph of O.M. Having reviewed the photo line-up in exhibit #8, I am satisfied that the photo line-up participants had similar physical characteristics to the accused, O.M., and that the photos were similar in size and colour to that of O.M.'s photograph.

[240] I accept as a fact that S.M. was not told that O.M.'s mug shot was in the photograph array, and that she was provided with the appropriate instruction to the photograph line-up procedure by Constable Feddema. As a result, I find that S.M.'s identification of O.M. in the photograph line-up was beyond reproach.

[241] I also find that S.M. was not tainted by viewing a grainy screen grab of the assailants in exhibit #37(a) and (b) taken on the night of the robbery. S.M. was shown the screen grabs on Detective Constable Tinebra's cellphone while S.M. was at the hospital three (3) weeks before the date of the photograph line-up. Although there was more colour in the photographs shown to S.M., in my view, there were absolutely of poor quality and disclose no distinctive facial features. I have closely examined the photographs in exhibit #5(b) page seven (7) and page nine (9) and compared them to exhibits #37(a) and (b), and I cannot discern or make out the facial features of the lone black male and the three other black males.

[242] There was a complete lack of material inconsistencies in S.M.'s evidence. What distinctions or inconsistencies existed were merely on minor issues of no evidentiary consequence. In its totality, I found S.M.'s testimony to be highly credible. Finally, I did not feel that S.M's lie to a hotel guest(s) that the culprits were "friends" in anyway diminished her credibility. Given her chosen profession, it may be understandable that S.M. wanted to mislead a curious hotel guest(s) the true nature of her relationship with at least one of the assailants.

Mr. B

[243] Mr. B was a problematic witness for the Crown. The Crown quite properly acknowledged that Mr. B was a suspect witness of Vetrovec character. Mr. B was a significant prosecution witness whose testimony incriminated all three co-accused. There was a degree of concern as to Mr. B's credibility and reliability considering that:

1. He minimized his involvement in the incident, to the extent that he testified that he was merely the de facto taxi driver that night.

2. He made the following inconsistent and deficient statements under oath in the context of the present case: