Court File and Parties
Ontario Court of Justice
Date: October 24, 2019
Court File No.: 18-3054
Between:
Her Majesty the Queen
— and —
Brian Deakin and David Stewart
Before: Justice Robert S. Gee
Heard on: September 30, 2019 and October 1, 2019
Reasons for Judgment released on: October 24, 2019
Counsel
Derek Zuraw — counsel for the Crown
Dale Henderson — counsel for the accused Brian Deakin
John Raftery — counsel for the accused David Stewart
Reasons for Judgment
Gee J.:
Introduction
[1] On the evening of October 6, 2018, the Maple convenience store located at 373 Colborne Street in the City of Brantford, Ontario, was robbed. It is alleged two masked persons were involved. One went inside and brandished a firearm or imitation firearm in one hand and a knife in the other. The other person is alleged to have stayed outside and kept watch while holding the door ajar.
[2] The Crown has alleged the person who went inside with the weapons was Brian Deakin, while David Stewart remained outside keeping watch, as such both accused are charged with committing robbery with a firearm contrary to s. 344(1)(a) of the Criminal Code and with having their faces masked during the commission of an indictable offence contrary to s. 351(2) of the Criminal Code.
[3] Mr. Deakin was also charged with breaching a term of a recognizance by being in possession of a weapon. The Crown led no evidence that Mr. Deakin was on a recognizance at the time so invited me to dismiss that charge and I will do so.
[4] No firearm or imitation firearm was ever recovered, and the Crown led no evidence capable of proving the item possessed by the robber was a firearm, as such, the Crown only seeks convictions for the accused on charges of robbery simpliciter and not on robbery with a firearm as charged.
[5] The issues at this trial are as follows. In relation to Mr. Deakin it is identity. He claims the Crown has failed to prove he was the person who was inside the store and robbed it. In relation to Mr. Stewart, he admitted he was the person who was outside the entrance to the store and held the door ajar. The issue is whether the Crown has proven he took part in the robbery. He claims he did not know the robbery was going to take place, he only knew the other person entered the store to do something unlawful or "bad" as he described it, but did not know what that was and that any acts he did take at the time were done under duress as a result of threats made to him by the other party.
[6] The evidence led by the Crown came in several forms. Three witnesses testified. The first was Mohamed Hijazi, the store clerk who was robbed who recounted the events. The second was Melissa Deakin, the sister of Brian Deakin who purported to identify her brother on the store's security video and the final witness was the officer in charge of the investigation, Detective Jason Davis. The other evidence came in the form of video from the several store security cameras, a clip of the police booking video of Mr. Deakin and the videotaped statement Mr. Stewart gave to Detective Davis when he was arrested. Neither accused testified and the defence called no other evidence.
[7] The balance of these reasons will explain why I find the Crown has proven the case beyond a reasonable doubt and findings of guilt will be made against both accused on both charges they are facing.
The Evidence
[8] Maple Convenience is on the southeast corner of Colborne Street and Park Avenue. The front of the store faces Colborne Street. It is a typical convenience store. It sits far enough back from Colborne Street to provide spaces for parking and entrance by vehicles can be made off Colborne Street or Park Avenue.
[9] The store has video surveillance cameras both inside and out. These cameras captured not just the robbery, but the events leading up to it and those following it. Apart from the video on the side of the store fronting Park Avenue, the videos are colour and of high quality. The Park Avenue video is black and white. The videos are dated and timestamped. It turns out the time indicated on the videos was 9 minutes behind the actual time. As nothing turns on the precise time the robbery occurred, references to times in these reasons is taken from the timestamps on the videos. As well the separate videos are referred to and logged as channels in the security system. Channel 1 for instance is the black and white video on the Park Avenue side, Channel 9 is the back aisle of the store, Channel 7 is from behind the counter, Channel 12 is the front outside of the store, etc.
[10] Mr. Deakin is first observed at the store alone, approximately 10 minutes before the robbery. He is wearing a grey hoodie with the hood pulled up over a baseball style hat. He enters the store, walks around the back of the store, down an aisle at the side opposite the front door, then leaves the store the same way he came in without making a purchase. Subsequent to this, he is seen on Channel 1 at 6:15:15 walking southbound on Park Avenue out of view.
[11] Then on Channel 1 at 6:20:15 the accused are seen walking together northbound on Park Avenue toward the store. At 6:20:45 they both walk to the front of the store. They are both wearing hoodies, the same grey one for Mr. Deakin, red for Mr. Stewart. Both accused as well are wearing gloves. Even though it was raining that night, of the numerous people observed on the videos, only Mr. Deakin and Mr. Stewart were wearing gloves. In fact, Channel 1 showed one person getting out of his car to go into the store while wearing shorts.
[12] Both accused remain out front of the store for several minutes. Mr Stewart, who is very tall, stands with his back leaning against the front windows of the store. Mr. Deakin who is much shorter and stockier, stands to Mr. Stewart's right. He leans against the store window as well with his left shoulder while standing in very close proximity to Mr. Stewart, much closer than two people would stand during normal human interaction. Both accused keep their hoodies up and their heads down.
[13] It is unclear for Mr. Stewart but by this point Mr. Deakin has his face masked. Channel 12 shows them in this position. At 6:22:18, two young women exit the store and walk past the accused. As they do. Mr. Deakin takes his right hand from his pocket and brings it up as if he's scratching his ear until the women have passed. It is apparent from this as well as their posture, the way they both are keeping their heads down, the way they are both standing that they are both trying to prevent their faces from being seen.
[14] At 6:22:59, Mr. Deakin entered the store. He immediately turns left, the opposite direction from the counter where Mr. Hijazi is. He walks around the other side of the store until he comes to the end of the counter to Mr. Hijazi's right side. By 6:23:18, the robbery starts. Mr. Deakin is behind the counter and by 6:23:25 what appears to be a gun is clearly visible when watched from Channel 7. By 6:23:54, Mr. Deakin is reaching with his right hand in the now open cash register and is taking the money. In his right hand he also has a knife. At 6:24:29 Mr. Deakin runs out the door. His run out the door is visible on Channel 16, which is a camera set at about eye level that is directly in front of the door to the store and looks out. It captures good quality, colour video of all persons as they enter and leave the store. When he runs out the door the object that appears to be a gun is still in his left hand.
[15] When Mr. Deakin enters the store, Mr. Stewart moves from where they stood together to the door at 6:23:04. This can be seen on both Channel 12 and 16. By 6:23:09 Mr. Stewart, who now has his face masked, has the door slightly ajar and he opens it even further. He remains that way until a car can be seen entering the parking lot at 6:24:00 from Channel 16. At 6:24:14 after watching the car park, Mr. Stewart leaves the front door. He walks across the front of the store toward Park Avenue and as he does so, he pulls his mask down providing a clear shot of his face on Channel 12. Channel 1 then picks him up coming around the side of the store. As he does so, he removes his gloves and starts walking south through the parking lot onto Park Avenue. As he gets to Park Avenue at 6:24:29 just as he's about to leave the view of the camera, he starts to run.
[16] After Mr. Deakin runs out of the store at 6:24:29 he also heads onto the Park Avenue side of the store and runs south down Park Avenue in the same direction as Mr. Stewart and leaves the camera view at 6:24:32, only 3 seconds behind Mr. Stewart.
Analysis
Brian Deakin
[17] Within a day or so of the robbery, the police issued a media release with pictures taken from the videos, seeking help from the public in identifying the suspects. Melissa Deakin saw this release and immediately contacted the police and identified the shorter, stockier suspect in the grey hoodie as her brother, Brian Deakin. She saw four pictures in the media release that she recognized as her brother and immediately left the thanksgiving dinner she was at and attended the police station to make a report.
[18] At trial the Crown sought to have her identify her brother from the videos. Evidence of this nature is only admissible if two criteria are met; the first being that the witness has a prior acquaintance with the person being identified and second, the witness must be in a better position than the trier of fact to identify the suspect. See: R v. Leaney, [1989] 2 SCR 393. For further discussion of these criteria see the Court of Appeal decision in R v. Berhe, 2012 ONCA 716 at paragraphs 13 to 23.
[19] At trial, a voir dire was commenced to determine if the evidence of Melissa Deakin met these criteria. At the conclusion of the voir dire, defence counsel for Mr. Deakin conceded it did. As defence counsel pointed out, just because a witness is qualified to give such evidence, does not necessarily mean their evidence ought to be accepted by the trier of fact or that it is by this fact, reliable. I must still make my own assessment of the witness's evidence and be satisfied beyond a reasonable doubt as to its accuracy, if I am to accept it.
[20] In this case I am satisfied beyond a reasonable doubt that Melissa Deakin can and has identified her brother on the videos. At the time of trial, she had not seen him in approximately two years, when she saw the media release and made her report to the police, she had last seen him about a year earlier. This passage of time does not I find detract from her ability to identify him. She testified throughout I find in an honest and fair manner. It was apparent her and her brother had a falling out over his lifestyle, but I do not find that this has affected either her credibility or the reliability of her evidence.
[21] She testified as brother and sister they grew up together and her brother had in fact been living with her the year before for about a month before they had their falling out. When asked, she stated the only change in his appearance since he moved out was that he was a bit heavier when he lived with her.
[22] When being asked to make an identification from the videos, I found that she gave her evidence in a careful, candid and honest manner. There were at least two clips played for her, where she stated she would not be able to make an identification from those clips, either because the view was too brief or the person moving too fast.
[23] There were several clips though where she testified she was able to identify the person in the grey hoodie as her brother. The first was Channel 9 at 6:14:04. This clip was from the time when Mr. Deakin entered the store alone about 10 minutes before the robbery occurred. In this clip he is seen walking along the back aisle of the store with his back to the camera. From this clip Ms. Deakin indicated she immediately recognized her brother's distinctive walk. She described it as the way he sways when he walks, and his arms move as a result to the front and back. She stated he has had this manner of walking since he was young. Defence counsel labelled it as a saunter while Ms. Deakin labelled it as a "thug walk."
[24] The walk does have a distinctive quality to it. Mr. Deakin's shoulders rotate back and forth as he walks which causes his arms to move more around his body rather than simply back and forth. This is a feature about Mr. Deakin that I am satisfied his sister, knowing him as she does and for as long as she does, would be able to recognize.
[25] The next clip she viewed was again from Channel 9 from 6:14:21 to 6:14:30. At this point Mr. Deakin walks back along the back aisle of the store retracing his steps from the previous clip. During this time in the store, Mr. Deakin does not have his face masked. Although he has his hood up and a baseball type hat on, the part of his face from the nose down in this clip is visible. Ms. Deakin testified she recognized his face in this clip. The cut of his chin and his big nose as she described it is what she observed that let her recognize the person as her brother.
[26] A clip from Channel 12 starting at 6:13:51 was also viewed by Ms. Deakin. In this clip Mr. Deakin walks into the store. The view as he does this is from behind and she testified she recognized the same walk of her brother's that she observed from the clip of the inside of the store. Then at 6:14:38 Mr. Deakin emerges from the store. He starts walking in the direction of the camera and at one point stops and turns to his left to look in the store through the front window. When he does this his face from the eyes down is in profile. He then turns and walks towards the camera out of view. While doing so his face is again in view from the nose down. Ms. Deakin again testified she recognized the face as that of her brother's; the nose, chin and lips were his. This clip lasts from 16:14:38 to 16:14:48 and I find given its quality and the amount of the face visible, especially when in profile, Ms. Deakin's identification from it is accurate and reliable.
[27] A further clip from which Ms. Deakin makes an identification is Channel 16 at 6:13:56. This channel it will be recalled, is the one at about eye level just inside the store door and provides a high quality, close-up view of the faces of persons entering. This clip captures Mr. Deakin entering while his face is unmasked. From viewing this clip Ms. Deakin testified based on the shape and outline of the face, the nose and the lips, that there was no doubt in her mind that the person was her brother. I recognize a witness's confidence does not equate with accuracy however this clip gives a very good view of the person's face, is clear and of high quality, such that again I am satisfied in the accuracy of Ms. Deakin's identification.
[28] It is based on these clips and Ms. Deakin's testimony as to her ability to recognize her brother from them, that I am satisfied beyond a reasonable doubt that her identification of her brother is accurate and reliable.
[29] There was other evidence led relating to Ms. Deakin and her brother I should comment on. There was some evidence from her that the shoes Mr. Deakin was wearing in the store were the same or like ones his sister testified he was wearing in a Facebook picture of him take before the robbery. I placed no weight in this evidence. The quality of the Facebook picture made an exhibit at trial would have made the identification of the shoes Mr. Deakin was wearing in it unreliable. However, in any event, shoes are something that people can and do change often, are not particular to any one person and even as described, there was nothing particularly distinctive about the shoes discussed at trial. As such I attributed no weight to this evidence in assessing her identification of her brother.
[30] It also came out during the trial, that since his arrest on these charges Mr. Deakin has called his sister numerous times in order to find out what her testimony would be and to inquire if she intended to attend for trial. In these calls he stated he was innocent, and she was going to put him in jail. At times he would threaten his sister that she would need to watch her, and her children's "backs" were she to testify. The last call she received from him was on the morning of the first day of trial where he again asked if she was going to testify. When she said she was he became irate and hung up on her.
[31] Although this behaviour is reprehensible and beyond the pale, I did not use it as corroborative of Ms. Deakin's identification. Nor did I view it as any consciousness of guilt or draw any adverse inferences against Mr. Deakin from it. I simply ignored it as it related to my assessment of his sister's ability to identify him from the video.
[32] I as well gave no weight to the booking video clip of Mr. Deakin. The Crown played this clip to demonstrate the manner Mr. Deakin walked at the police station was consistent with the walk visible in the video clips. I find I am not able to make a meaningful comparison. The police booking video is too short and I am not familiar with Mr. Deakin enough to make such a comparison. As such, as stated I placed no weight on the booking video in my assessment of whether the Crown has proven Mr. Deakin was the person in the grey hoodie that robbed the store.
[33] My satisfaction beyond a reasonable doubt that the person who entered the store and robbed Mr. Hijazi is based on Ms. Deakin's identification of him from the video as noted above.
David Stewart
[34] Identity is not the issue for Mr. Stewart. He conceded he is the person in the red hoodie observed on the videos. As he did not testify, his defence comes from his statement he gave to Detective Davis after his arrest which was led by the Crown at trial.
[35] His defence is that the acts he did to assist Mr. Deakin were done as a result of duress and that although he knew Mr. Deakin was going to do something "bad" when he entered the store, he had no knowledge that he was going to commit a robbery especially one with any type of weapon and as soon as he realized Mr. Deakin was committing a robbery, he left.
[36] For me to accept Mr. Stewart's defence, I would have to believe what he said in his statement to Detective Davis or at least have it leave me with a reasonable doubt. It does neither. Mr. Stewart's statement is too full of inconsistencies, unbelievable assertions and things that are demonstrably false for it to be believable or leave me with a reasonable doubt.
[37] The interview is one hour twelve minutes long and the transcript of it is 107 pages. His version of events eventually boiled down to this. He attended the store to purchase cocaine from a dealer he had dealt with about two times before. Mr. Stewart arrived without funds to pay for the drugs so he was spotted them by the dealer. After doing so the dealer asked Mr. Stewart to hold the door to the store open while he went inside to do something. If he did not do it the dealer said there could be consequences for Mr. Stewart and his family. Mr. Stewart interpreted this as a threat that the dealer could carry out as he was someone who had done "pen time" before. Mr. Stewart, because he was scared and not thinking properly due to his drug use complied, but according to him, as soon as he realized the dealer was committing a robbery with a weapon he fled. As such, he only did what he did under duress and had no knowledge that a robbery was about to take place and no intention to take part in one as can be seen from fact that he left as soon as he saw what was happening.
[38] Mr. Stewart's statement is not believable nor does it leave me with a doubt as there are too many instances where it is internally inconsistent, where he says one thing at one point and another at a later point, and as well he says too many things that are just demonstrably false. The changes to his version as well often only came about when Detective Davis pressed him or showed him parts of the video that contradicted him.
[39] For instance, early in the interview (pg. 16 and 17 of transcript) he stated he did nothing to disguise himself and at no point did he cover his face. This is clearly not true as was clear from the videos.
[40] He also stated that after getting the drugs the dealer entered the store and he saw him through the store windows (pg. 19 and 21 of transcript). This is also not true as can be seen form the videos. When Mr. Deakin enters Mr. Stewart moves to the door and watches from there, not at the windows where they were standing before.
[41] He initially stated he bought $40.00 worth of cocaine from the dealer (pg. 30 of transcript). When it was pointed out by detective Davis that at the point of the video where Mr. Stewart states the drug transaction took place, at no time does any money exchange hands between them. It was only then that Mr. Stewart claims the drugs were supplied to him as a spot, as he calls it.
[42] As for the drug transaction itself, that it would be done where he claims it was, out front of the store, under cameras he knew were there, in a well-lit area with other persons around simply defies belief especially given the video showed Mr. Stewart and Mr. Deakin just earlier walking up Park Avenue. At that time Park Avenue was dark and there were no other people on it. If the two were going to engage in a drug transaction, that would be the most logical place to do it to avoid detection.
[43] He also stated he had no idea where Mr. Deakin went after leaving the store (pg. 27 of transcript) and in fact he saw him running the complete opposite way from the direction Mr. Stewart went. That is Mr. Deakin went north across Colborne Street toward Dalhousie Street while he went south down Park Avenue (pg. 60-62 of transcript). Again, the video clearly shows this is not true. Mr. Stewart leaves and runs south on Park Avenue followed 3 seconds later by Mr. Deakin who is also seen running south on Park Avenue.
[44] Mr. Stewart initially claimed he had no idea what was going to happen when Mr. Deakin entered the store and he only realized his intentions when he saw what was happening. As the interview unfolded, Mr. Stewart ultimately admitted he knew Mr. Deakin was going to enter the store to do something bad, he just didn't know how bad (pg. 92 of transcript).
[45] The threat that was allegedly made was vague and changed at times. At one time it was "...if you don't, I'm coming to your fucking house and doing something" (pg. 44 of transcript). Later it was "my family will get hurt or me" (pg. 46 of transcript). Then even later "somebody could get hurt, somebody could get killed" (pg. 68 of transcript). Then just a few sentences later it changed to "do this for me or there could be consequences to you or your family" (also pg. 68 of transcript).
[46] He also claimed to have turned himself in to the police, which was simply untrue. He was arrested at his house by amongst others, Detective Davis, the police officer he was sitting across from and being interviewed by.
[47] There is also his claim that he left as soon as he realized what was happening. There are two problems with this claim, it is not true that is when he left, and it is not true that is why he left.
[48] The videos clearly show the robbery commenced by Mr. Deakin at 6:23:18, by 6:23:25 the gun is clearly visible. At 6:23:54 Mr. Deakin is taking the money from the register. Meanwhile, at 6:23:04 Mr. Stewart moved to the door. At 6:23:09 he opens the door and opens it even further at 6:23:31, well after the robbery has started and the gun is visible. He stays in that position, watching until 6:24:00 when the car pulls in and he starts glancing back and forth at the car. It is not until 6:24:13 until the car parks that Mr. Stewart leaves. He is clearly watching the robbery, aware of what is happening from 6:23:18 when it starts, to 6:24:13 when he leaves, a full 55 seconds.
[49] His claim that he left because he realized what was happening is also not believable. As can be seen from above he watched for nearly a full minute before he left. It is clear the real reason he left is because the car pulled in. Channel 12 shows Mr. Stewart holding the door ajar and watching. You can see him watch the car as it pulls in. You can see him continue to watch it and then decide to leave as it parks. He mentions this in his statement and is the only part of the statement that I find he was being truthful.
[50] He stated at least three times in his statement that he left because the car pulled in (pg. 21, 25 and 36 of transcript). In fact, he initially stated that he thought the car was an undercover police car and that is why he left. That makes sense, is consistent with the video and explains why he pulled down his face covering as he passed the car. Since he thought they were police he would want to ensure their attention would not be drawn to him.
[51] It is for all these reasons I do not believe Mr. Stewart's statement. I do not believe there was any drug transaction or was there any threats made by Mr. Deakin to him to compel him to participate in the robbery.
[52] As a result of this finding, no claim to duress can be made by Mr. Stewart. However, even were I to believe him, I find his duress defence could not succeed. The first issue is whether the defence was claiming a defence related to s. 17 of the Criminal Code, in which case robbery is specifically excluded from reliance on this section or if it was a claim under the common law defence of duress. Leaving aside whether Mr. Stewart was a principal or a party, which raises other issues in a claim of duress, the Supreme Court set out several preconditions to a successful duress defence. See R v. Ryan, 2013 SCC 3.
[53] First there must be an explicit or implicit threat of present or future death or bodily harm. In this case the so-called threat made was vague and kept shifting. In the end it was a threat of "do it or there could be consequences for you or family." It is unlikely this is a threat that could qualify for a duress claim.
[54] However, where Mr. Stewart's claim would falter most is on the requirement that there is no safe avenue of escape. Here Mr. Stewart simply could have left when Mr. Deakin entered the store. Mr. Deakin was in the store for approximately 90 seconds, Mr. Stewart is alone outside, he lives close by and he stated Mr. Deakin did not know where he lived. Simply put, he had a safe avenue of escape which he chose not to take. As such, his claim of duress would ultimately have failed even if I believed his statement.
[55] However, disbelieving Mr. Stewart's statement does not necessarily lead to a conviction. I still must be satisfied on the totality of the evidence he knowingly took part in the robbery. After reviewing the evidence, I am satisfied beyond a reasonable doubt he did.
[56] A review of the videos and his actions lead to no other reasonable conclusion. A review of the videos from outside the store both before during and after the robbery makes this conclusion inescapable. I have also been careful to not reason about Mr. Stewart's action backwards from my knowledge that a robbery ultimately occurred. What convinces me of this is the totality of the circumstances.
[57] For instance, both Mr. Stewart and Mr. Deakin are seen outside the store. They are in close proximity in apparent discussions. They are both masked. The fact they are masked is alone compelling evidence they are preparing for the robbery. Add to that, they are the only two persons wearing gloves, also compelling evidence in the circumstances that they are preparing to rob the store.
[58] As well, they were taking great pains to hide their faces from all other persons who were coming and going from the store at the time. The proximity in which they stood to each other, the way they kept their heads bowed and the way Mr. Deakin brought his hand to his face when other store patrons walked by all belie any innocent connotation to their actions.
[59] Then there is what Mr. Stewart did during the robbery. He kept his face masked, he stood by the door and held it ajar so it could not be locked remotely from within and he watched for nearly a minute as the robbery unfolded not once doing anything that would indicate shock or surprise at what he was witnessing. He only left when he became worried that the car that pulled into the lot was an undercover police car. Only then did he leave, and only then did he pull down his mask in the hope attention would not be drawn to himself.
[60] This also would explain why he removed his gloves as soon as he came around the side of the store. He was not wearing gloves because his hands were cold as he stated to Detective Davis, he was wearing them, so he did not leave fingerprints at the scene.
[61] Finally, its also clear Mr. Stewart and Mr. Deakin were working together that night as they both came up Park Avenue together that night and both ran back down Park Avenue close in time with each other in the same direction they came from.
[62] Given all of this, I also have no hesitation in concluding Mr. Stewart was aware that the robbery would be committed with the weapons Mr. Deakin possessed. All the evidence points to the two accused planning, preparing for and carrying out the robbery. There is no valid reason why Mr. Stewart would not be aware of all aspects of how the robbery was to unfold, including that weapons would be used.
Conclusion
[63] For all these reasons I find the crown has proven beyond a reasonable doubt that both accused are guilty. They planned, prepared and carried out this robbery in concert. As such, findings of guilt will be made for each accused on the included charge of robbery simpliciter as sought by the crown and as well on the charge of having their faces masked while committing an indictable offence.
October 24, 2019
Justice Robert S. Gee