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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

ONTARIO COURT OF JUSTICE

Date: November 18, 2019

Court File No.: 3111-998-18-Y953

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.M., S.W., K.K., M.R.-M. (young persons)

Before: Justice A.D. Dellandrea

Heard on: September 4, 5, 6, 9, 10, 11, 12, 13, 16, 17, 19, 20, 23, 24, 25, 26, 27, 30, October 1, 2, 3, 4, 7, 2019

Reasons for Judgment released on: November 18, 2019

Counsel:

• Ms. Jennifer Goulin — counsel for the Crown
• Ms. Jennifer Budgell — counsel for the accused A.M.
• Mr. Paul Erskine — counsel for the accused S.W.
• Mr. Michael Owoh — counsel for the accused K.K.
• Ms. Leanna Seetahal — counsel for the accused M.R.-M.

DELLANDREA J.:

A. Introduction

[1] Three armed robberies were committed within just over two weeks in May of 2018. All three were at Scotiabanks within Mississauga. The robberies were committed at gunpoint by perpetrators whose faces were partially masked, with their heads hooded and hands gloved. The robbers entered the banks quickly, took command of the tellers with verbal threats of violence, and demanded that the drawers be emptied of cash. The money taken was stashed in a bag, then the group quickly fled.

[2] After the first robbery on May 10th, two hooded men were seen running from the area of the bank and entering a Black BMW nearby. A witness recorded the license plate of the vehicle and provided it to police. The BMW was registered to K.K.'s father.

[3] In mid-May, a project team was assembled by the Central Robbery Unit ("CRU") of the Peel Regional police to investigate the three robberies. Extensive surveillance began on three targets: K.K., A.M., and S.W. A fourth robbery was attempted on June 15, 2018, while the target vehicle believed to be carrying some of the targets was under the direct surveillance of the police. A.M. and S.W. had "masked up" inside the vehicle and rushed to the bank's entrance, only to find that the doors had already been locked. The robbery was foiled, and a takedown ensued. M.R.-M. was also arrested on scene, as the driver of the car that A.M. and S.W. had exited and re-entered following the botched robbery. K.K. was not present on June 15th. He was arrested three days later, in connection with the earlier robberies.

[4] A.M., S.W. and K.K. were each charged with multiple offences in relation to the May 10th, May 15th and May 25th robberies, and A.M., S.W. and M.R.-M. were charged in relation to the June 15th attempted robbery. In addition, A.M. and K.K. each face a single count of Fail to Comply with Recognizance/Undertaking.

[5] At the outset of the trial, the Crown filed a similar fact evidence application, asking that the evidence in relation to the three May robberies be admissible on each count, for the purpose of establishing the identity of the perpetrators. The evidence in relation to the similar fact application was received on a blended hearing, which was argued at the conclusion of the trial. Counsel for each of the three implicated defendants (A.M., S.W. and K.K.) opposed the similar fact application, arguing that there was a deficit of unique similarities between the incidents, and weak evidence of linkage between each incident and the individual accused.

[6] In a separate application, also conducted as a blended hearing, M.R.-M. alleged that investigators used excessive force in effecting his arrest, resulting in a breach of his section 7 rights under the Charter. The remedy requested by the applicant was a stay of proceedings under s. 24(1) of the Charter.

[7] At the conclusion of the evidence, Ms. Goulin conceded that the Crown's evidence with respect to the May 15th robbery (counts 4-6) was insufficient to meet the necessary standard of proof beyond a reasonable doubt on those counts. She invited the court to dismiss these charges with respect to all three parties (A.M., S.W., K.K.). They are hereby dismissed.

[8] On behalf of A.M., Ms. Budgell conceded that the evidence called had established her client's guilt in respect of the June 15th charges (counts 11 & 12), as well as the charge of Fail to Comply – Recognizance (count 13). On behalf of S.W., Mr. Erskine made a similar concession with respect to sufficiency of evidence against his client in relation to the June 15th charges. Convictions will be entered on these charges accordingly.

Positions of the Parties

[9] With respect to the remaining two May robberies, identity is the focal and highly contested issue at this trial. On behalf of the Crown, Ms. Goulin argues that there is sufficient direct and circumstantial evidence available to prove the participation of the three principal parties in both the May 10th and May 25th robberies, beyond a reasonable doubt. The Crown relies heavily on the videotape surveillance and stills from each of these incidents, which she argues is of sufficient quality and clarity to allow the court to safely confirm the identity of A.M. and S.W. as the perpetrators, pursuant to the principles of Nikolovski, notwithstanding that the suspects were hooded and partially masked. Beyond her reliance on the videotapes, Ms. Goulin relies on several items of circumstantial evidence of identification, referred to by her as the "bricks" which she suggests combine to build the proverbial "wall" of identification with respect to all three suspects for these two events.

[10] With respect to the June 15th incident, Ms. Goulin argued that the evidence of the parties' movements on that day, both before and during the takedown at the Scotiabank, was sufficient to establish M.R.-M.'s subjective knowledge and participation in the attempted robbery, as well as the collective knowledge and control by M.R.-M., A.M. and S.W. of the stolen red Pontiac used in its commission.

[11] Counsel for A.M., S.W. and K.K. collectively and individually argue that the Crown's evidence on the issue of identity of each of their clients for the May robberies is insufficient to meet the exacting but necessary standard of proof beyond a reasonable doubt, in order to support a conviction. With respect to A.M. and S.W., it is argued that a positive identification of either party could not safely be made based on what little that can be seen of their faces, namely: the top portion of their faces between the middle of the nose to the forehead. Ms. Budgell and Mr. Erskine further submit that the descriptions of the robbers offered by the witnesses to each incident are too generic to be considered as confirmatory of their client's identity, and the items of clothing seized from their respective residences are likewise not sufficiently probative to tip the scales of proof beyond a reasonable doubt.

[12] Both A.M. and S.W. take the position that the Crown's evidence is insufficient to prove their knowledge or control over the stolen vehicle used in the commission of the robbery on June 15, 2018.

[13] On behalf of K.K., Mr. Owoh submits that the circumstantial evidence of his client's alleged participation in both the May 10th and May 25th robberies is insufficient to prove his client's guilt beyond a reasonable doubt. While it is acknowledged that the K. family vehicle was associated with the May 10th incident, Mr. Owoh argues that the evidence is inconclusive as to who was the driver, and that a reasonable doubt should remain on the issue of identity. As for the May 25th incident, Mr. Owoh emphasized that the Crown's theory of K.K.'s liability rests entirely on circumstantial evidence, which does no more than to establish the possibility that someone picked the principals up in a vehicle, potentially a black one, in the residential area behind the bank. There being a complete absence of evidence as to who was driving the vehicle, if any, Mr. Owoh argues that the Crown's case necessarily fails against his client, K.K., whom the Crown theorizes was the getaway driver.

[14] On behalf of M.R.-M., Ms. Seetahal argues that the evidence fails to establish that her client had the requisite knowledge of the robbery to be liable for conviction as a party under s. 21(1) or s. 21(2). She suggests that the evidence is equally consistent with her client essentially being a dupe who was taken by surprise when his friends masked up at the door of the bank to which he had delivered them, and raced towards it to attempt to commit a robbery. On the charge of possession of stolen property, Ms. Seetahal makes a similar argument, of an absence of knowledge on her client's part with respect to the vehicle's status as stolen.

FUNDAMENTAL LEGAL PRINCIPLES

[15] Each of the parties charged are presumed to be innocent. There is no burden on any party to prove their innocence or to disprove their guilt. As with any criminal trial, the burden of proof remains entirely on the Crown throughout the proceeding, to prove each and every element of the offences charged, beyond a reasonable doubt. Where a reasonable doubt arises on the evidence, or on the lack of evidence, the accused is entitled to an acquittal.

THE EVIDENCE

a) May 10, 2018 Scotiabank Robbery

Bank surveillance and witnesses

[16] Less than 10 minutes before the Scotiabank at 660 Eglinton Avenue West, Mississauga was scheduled to close for the day, two men walked into the branch and began an armed robbery. Both wore hoodies over their heads, and masks over the lower portion of their faces. One of the men had a gun.

[17] Three different views from the bank's video surveillance cameras were introduced into evidence: one from just outside the entrance doors, and two different angles from within the bank, behind the tellers. While the videos have no sound, they are of excellent visual quality, and collectively capture the participant's movements for the duration of the robbery.

[18] The tellers had been in the process of doing their final reconciliations at their wickets for the day. The suspect wearing a black Nike hoodie leapt over the counter to the tellers' side, while the suspect in the green striped hoodie remained on the other side of the counter, pointing a handgun in his left hand in the direction of the staff. According to the witnesses, both shouted men "give us all the fucking money" loudly.

[19] One of the tellers, Ms. Haroon, testified that the man in black checked all of the wickets one by one, ending with hers, which had the majority of the available cash. The suspect approached her stall and repeatedly demanded "all the money." He emptied her drawer into a black bag, and demanded to know where there was more. Ms. Haroon explained that her bottom drawer was on a timer which could not be opened in less than five minutes. The suspect in black continued to rummage through drawers and a rear cabinet until the suspect in green eventually said "we have to go," and the parties fled.

[20] Ms. Haroon described the suspect in the black clothing as a young black man, perhaps in his 20s, with darker skin than the other suspect. He wore a ski mask over the bottom part of the face. She said he was tall and slim. Both he and his partner spoke in "slang" or street language, and were swearing.

[21] Ms. Haroon described the man in green as light skinned black, of similar age, who was thin and also agile. She testified that she saw his hair at the side and top of his head, and noticed that it was curly. She couldn't comment on the length of his hair or whether it was braided, because of his hood. Ms. Haroon agreed that she was only able to observe the top third of either suspect's face.

[22] Majid Alhereth was also working as a teller during the May 10th robbery. He was the first to see the men coming through the glass doors into the bank with their hoods up and gloves on. He described being able to see "only the eyes" and top of either man's face, because of their masks. Mr. Alhereth said that the suspect in green, who did most of the talking, pointed a gun at the staff and yelled "give us all the money or I swear I will shoot." Meanwhile, the man in black quickly jumped over the counter and searched through "all the drawers" for cash; discovering relatively little, as it was near the end of the shift and most had been transferred to the vault. The suspect in black put the cash into the bag he was carrying, and after a brief exchange between themselves, the pair fled the bank and went to the right from the exit doors. The camera outside the bank captured images of the suspects' partially covered faces as they exited.

[23] Mr. Alhereth described both robbers as skinny, and approximately 5'11" in height. He described the man wearing black clothing as "black" and the robber wearing green as "mixed" race, with curly hair at the top and the sides. Mr. Alhereth testified that the robber in green had brown eyes, which he noticed when the robber was pointing the gun at him.

[24] A third teller, Mr. Rayman Sagu also testified. Mr. Sagu noticed the man in green first, as he was holding a gun. The firearm was black, and appeared to Mr. Sagu, who had some experience with licensed handguns, to resemble a Glock.

[25] He saw that the robber's head was covered by the green hood, and his face was partially obscured by a black mask on the lower half of his face. Sagu described this suspects complexion as "lighter," and of "mixed race." He was slim, and tall, approximately 6 feet, and in his mid to late 20s.

[26] Mr. Sagu was closest to the robber wearing black, who had leapt over the counter into the teller's area. Mr. Sagu was in very close proximity to the suspect as he rummaged through all of the drawers in that area. The suspect wore all black clothes, with a mask covering half his face, from the bridge of his nose down to his chin. Mr. Sagu described his skin as black, and darker than the other suspect. He had gardening gloves on his hands. Sagu described the second suspect as approximately 6 feet, slim, young, in his 20's "at most". While going through the drawers, the suspect continuously shouted "give us the money, give us everything" and "I will fucking shoot you" to the tellers. Both men used slang or street talk when speaking to each other, and the staff. Mr. Sagu believes that the suspects stole approximately $1600 before fleeing.

[27] Ms. Carmita Matute was the supervisor on staff on May 10, 2018. She testified that the robber in black came directly to her desk after leaping over the counter and clearing the tellers' stalls. She described him as slim, and in his early 20s. While near her, he was nervously and frantically demanding money and trying to find cash. He was carrying a bag in his hands, and his skin was "very dark" or "African" black. She added that she could see his hairline, which was "frizzy" as he stood very close to her. Ms. Matute testified that she got "a very good look at his hair and his skin."

[28] Ms. Matute described the skin colour of the robber in green as "fair" or "white," and believed his hair was "blonde or reddish." She described his build as tall and slim, but was not able to offer any additional detail, as her focus had primarily been on the suspect in black who was nearest to her during the robbery.

Mr. Fahed Qassim

[29] Mr. Qassim was walking his dog on Guildwood Drive towards Eglinton Avenue just before 8:00 p.m. on May 10th, when he passed two men wearing track suits with zipped all the way up to cover their faces. Mr. Qassim described the man in the lighter hoodie as tall, black, with curly hair. The second man wore all black. They stepped out of the way and went around Mr. Qassim. He turned to thank them, but they had continued on.

[30] The men were walking quickly towards the Scotiabank plaza.

[31] Moments after he passed the two men, Mr. Qassim crossed to the other side of Guildwood, where he saw a black BMW parked on the side of the street. Mr. Qassim noticed that the vehicle's windows were heavily tinted, and that the rear right brake light was broken. In crossing the street, Mr. Qassim passed directly in front of the stationary BMW. He looked through the windshield and saw a male driver, holding a cellphone to his ear. The rearview mirror blocked Mr. Qassim's view of the driver's eyes and nose, but he could see that the man's skin tone was brown, and he had distinctly "top heavy" hair. He described the driver's hair as "really close above the ears, then longer and higher on top."

[32] Once Mr. Qassim had made his way to the other sidewalk and taken a few extra steps, he saw the same two men who had passed him earlier in the track suits now running out of the catwalk from the Scotiabank plaza towards Eglinton. Only a minute or two had passed since he had first seen them. They were running quickly, and they looked scared. Both men sprinted directly to the BMW. The man in the lighter (green) hoodie entered the front passenger seat of the BMW with a bag held closely to his waist, while the man in the darker hoodie got in the rear driver's side.

[33] Mr. Qassim heard the engine of the BMW revving loudly, as though the driver had applied the gas while the car was still in park. He looked at the car and memorized the license plate. He saw the BMW pull off quickly, and noisily. Mr. Qassim reported what he had seen to the police.

[34] In cross-examination, Mr. Qassim agreed that it would have been pointless for him to be shown a photo-lineup by the police to try to identify the driver, as he hadn't seen all of the man's face. The features which he distinctly recalls seeing of the driver were his skin tone, which he described as an "Indian complexion" and his unique haircut.

b) May 25, 2018 Scotiabank Robbery

Bank Video Surveillance

[35] At approximately 2:20 p.m. on May 25, 2018, three men wearing athletic hoodies over their heads and masks over their faces entered the Scotiabank at 3000 Thomas Street, near the intersection of Winston Churchill Blvd. Surveillance video clips from three different angles within the bank captured their movements.

[36] Two of the robbers, one wearing mostly black, and the other in light grey, leapt over the counter to the tellers' area. It appears that the robber wearing the grey hoodie initially held a gun in his right hand, but the item was later clearly seen in the hand of the robber in all black. The third robber, who wore a multicoloured hoodie of turquoise and grey initially remained on the opposite side of the counter, before directing a fleeing staff member to return behind the counter.

[37] None of the video clips provided could be said to offer a clear view of any of the suspects faces. The hoods worn by each of the perpetrators were so tightly drawn around their faces that little more than a small enclosure around the area of their eyes was visible. All three wore gloves on their hands.

Bank Witnesses

[38] Ms. Mary Coric was working as a senior teller at the Scotiabank on May 25th, 2018, having worked at that branch for 26 years. She described seeing the three men rush in the doors, with two of them leaping the counter with ease. She tried to run away from the area of the wickets, but was redirected by the robber in the bright blue and grey hoodie, who forcefully led her back around the counter. She testified that she thought that he had a weapon in his hand by the way that he was holding it toward her, but couldn't be certain of this. The robber in black who had leapt the counter was pointing a gun at all of the staff as he and the other suspect in grey frantically tried to empty out all of the wickets. At one point, the robber in black set the gun down on one of the teller's chairs, so that he could use both of his hands to try to unlock one of the drawers. All three of the robbers were shouting loudly at the staff and patrons to get down, and to give them the cash.

[39] Based on their thin stature, speed and agility, Ms. Coric opined that the robbers were all young men, in their early 20s. She described all three of them as skinny and fairly tall.

[40] Samira Rahim and Ahmed Tahir were also working at the Scotiabank on Thomas Street on May 25th. Both described the robbers as extremely loud, and panicked. Mr. Tahir recalls one of the suspects pointing a gun directly at him, while demanding that he open the drawers. He stepped back nervously as the suspects rummaged through all of the drawers of each wicket. Mr. Tahir recalled that one of the suspects' skin tone was similar to his own, which he described as light brown, while another of the men had much darker skin. However Mr. Tahir was unable to attribute his recollection of skin tone to any particular suspect with certainty.

[41] Mr. Ted Bradley was doing some banking within the manager's office of the Thomas Street bank when it was robbed. When Mr. Bradley saw the gun and heard the robber's commands to get down, he did so. Mr. Bradley lay on the bank floor and continued watching through the door as the incident unfolded. Mr. Bradley described the perpetrators as "younger," he estimated in their 20-30s, based on the way they moved so quickly and athletically.

[42] Mr. Bradley saw the trio of robbers exit the bank and run towards a fence adjacent to a residential area, just across the parking lot from the bank. Mr. Bradley saw the men moving along the fence, looking up as though they were about to jump over it. The fence in question led towards the area of Bonnie Street.

[43] Mr. Said Mohamad was a driving instructor who had pulled up with a student to the south parking lot of the 3000 Thomas Street Scotiabank on May 25th, 2018. From the vantage point of his vehicle's driver's seat, Mr. Mohamad saw three young men with hoods and masks sprinting out from the doors of the bank and across the parking lot, towards and then right past the front of his car.

[44] Mr. Mohamad described the robbers as thin, young and black. In a matter of seconds, they ran right through the parking lot towards the tall fence bordering the residences on Stoney Crescent. He watched all three men jump over the fence, and he called 911 and reported what he had seen.

Bonnie Street witnesses

[45] Ms. Sidra Fahad lived on Bonnie Street, just on the other side of the fence which borders the area of the Thomas Street Scotiabank. On the afternoon of May 25th, she was in her bedroom on the second floor of her home, looking down at her two children who were playing in their backyard. Suddenly she saw two or three men jump over the back fence into her yard. Ms. Fahad described the men as tall, and fit. She was unable to see any part of their faces, as they were completely covered by what she believed to be balaclavas or masks, with their hands gloved.

[46] As quickly as they landed in her yard, the men scaled the adjacent fence into her neighbour's yard. From there, Ms. Fahad saw one of the men open the gate on her neighbour's property leading between the houses, out to Stoney Crescent. They then disappeared from her view.

[47] Within a few minutes of having seen the men hop the fences, members of the Peel police canine unit arrived at Ms. Fahad's residence to investigate and receive her information.

[48] Ms. Abimbola Olaoyi resided at an address in the area of Stoney Crescent and Bonnie Street on May 25, 2018. Ms. Olaoyi had just returned to her house with one of her daughters in the afternoon when she saw a "slick" black car with heavily tinted windows coming along Stoney Crescent. The car was moving "very slowly" as it drove past. Ms. Olaoyi said she felt uneasy about the way the car was driving. Ms. Olaoyi saw the vehicle stop at the side of the road on Stoney Crescent, facing Bonnie Street. She entered her house after seeing it come to rest there.

[49] Ms. Olaoyi attempted to go out through her garage a short time later to do another errand, but she was stopped by a member of the Peel police on her driveway. There were several officers walking up her street, some of them with guns, others with dogs. She told officers about the car that she had seen and was directed to return to her house for her own safety.

[50] Ms. Olaoyi reported having focused on the car because it so closely resembled her other daughter's BMW that she wondered if perhaps it was her daughter approaching. She testified that she did not believe that she had seen a car like that in her neighbourhood before. A video capturing the view of an exterior camera of another Bonnie Street neighbor from May 25th was shown to Ms. Olaoyi, in which at least two black sedans are seen in the area that afternoon. Ms. Olaoyi agreed that these cars were black, but maintained that they weren't as "slick" as the car which she had observed near her house that day.

Canine Unit Tracking

[51] Constable Kurtis Vaughan of the Peel Regional Police testified. He provided detailed testimony of the numerous local, national and international certifications which he and his service dog Timber had completed since they were paired in June of 2017. Timber and Cst. Vaughan have had tremendous success in their active deployment. Since October 2017, they were responsible for over 23 successful "finds", which included tracking over challenging terrain such as concrete, and across a six-lane highway. Cst. Vaughan's expertise as a canine handler was not disputed by counsel for any of the defendants.

[52] Cst. Vaughan's role as a canine handler, which at its core consists in studying every movement and behavior of his service dog, such that he can properly interpret Timber's success in maintaining his focus on the track under investigation. Cst. Vaughan testified that there was no possibility of mistaking Timber's cues when he is "on scent:" his ears pop up, he moves low to the ground, his tail goes perfectly straight, and he becomes markedly stronger. When Timber loses scent, his behavior also changes immediately. His head comes up, his tail goes from straight to vertical, and he immediately turns right to try to "recast" to find the scent. When Cst. Vaughan sees this behavior, he tries to help Timber reacquire the scent by "pushing past" the area where it was last detected, often in expanding circles on more porous surfaces on which there is a greater likelihood of the scent being detectible.

[53] Cst. Vaughan was dispatched to the robbery call at Thomas Street at 2:23 p.m. on May 25th. He arrived on scene at 2:35 p.m. and was directed by a civilian to the fence where the suspects were seen climbing. Cst. Vaughan harnessed Timber and moved to the grass bordering the parking lot; a scenario which Cst. Vaughan described as a canine handler's "dream". Timber immediately signaled that he was on scent. They tracked west directly to an area on the fence, where Timber stopped and signaled again. Cst. Vaughan jumped onto the fence, and Timber immediately followed. They landed on the other side and Timber's behavior indicated that he had quickly regained the track. Cst. Vaughan saw two sets of fresh footsteps in the grass, leading to a side gate. Timber went straight to the gate, then followed it out to Stoney Crescent.

[54] When he reached the sidewalk on Stoney Crescent, Timber went "heads up." Cst. Vaughan then used the technique of trying to "cast" Timber by moving him towards a grassy section in the immediate area to see if he could regain the track. The officer's efforts were unsuccessful, as Timber was not able to re-acquire the scent in any of the directions on which the suspects might have fled on foot. Cst. Vaughan was confident that if there had been a continuation of the scent path on foot, Timber would have found it.

[55] Cst. Vaughan later learned from Cst. Anderson that the area where he and Timber had lost track was similar to where a civilian witness had reported seeing a black vehicle, possibly a BMW.

c) Central Robbery Unit ("CRU") Project team surveillance

[56] Following the May 25th robbery, a project team at CRU was officially formed in an effort to identify and apprehend whom officers believed to be the same group of suspects responsible for the May robberies. While significant surveillance of both K.K. and A.M. had already been conducted, a third target – S.W. – was then added, and group surveillance increased. Given the use of a firearm in each robbery, the project team received approval for the assistance of the Tactical Unit, who began to conduct tandem covert surveillance of the targets in support of the CRU investigation.

[57] Between May 25th and June 15th, several more sightings of the three principal targets in each other's company were recorded by the surveillance team, affirming the strong links which existed between the parties.

d) June 15, 2018 Scotiabank attempted robbery

[58] Surveillance officers observed A.M. pick up S.W. at his residence in the M.'s black Honda Civic at 2:49 p.m. on June 15th. At 3:16 p.m., A.M. and S.W. were seen collecting a third unknown male in the area of Tomken and Canadian Place. That third male was wearing a Bass Pro Hat was later identified as K.S.

[59] At approximately 6:45 p.m., Cst. Vanderwal was positioned near S.W.'s residence on Fourwinds Drive when he observed A.M.'s Civic entering a townhouse complex just east of his position. He saw four occupants in the vehicle. Nine minutes later, at 6:54 p.m. Cst. Vanderwal observed a red four-door Pontiac sedan exit the same townhouse complex at a high rate of speed.

[60] Cst. Vanderwal could see that there were four people inside the red car. The Pontiac proceeded west, but immediately did a U-turn on the road and returned in the opposite direction. The officer saw something being discarded from the rear passenger window of the car onto the roadway before it sped off. Cst. Vanderwal called out his observations to his surveillance team, suspecting that their targets had switched vehicles.

[61] Other members of the surveillance team quickly confirmed Cst. Vanderwal's suspicion. S.W. was seen in the front passenger seat, and A.M. to his rear, with an unknown male driver as well as an unknown fourth passenger. A check of the vehicle's license plate revealed that the car had been reported as stolen from an address in Peterborough four days earlier.

[62] The red Pontiac was first observed attending a jewelry store where one of the occupants entered the store, then quickly exited and returned to the car. From there, the Pontiac went to the Scotiabank at Hwy #10 and Derry Road.

[63] On its first attendance to the Scotiabank, the Pontiac idled in the bank parking lot for about 4 minutes. Then it pulled out of the plaza and began to go east on Derry Road. Once it reached the intersection with South Line, the Pontiac did a U-turn and returned directly to the entrance of the bank.

[64] Cst. Mark Finnie was parked in a spot facing the Scotiabank doors when the red Pontiac returned. The Pontiac drove right past Cst. Finnie's unmarked car, allowing him to clearly observe the two occupants on the passenger side "masking" up by raising their hoods over their heads and up over their faces. As the car rolled slowly towards the entrance to the bank Cst. Finnie could see continued movement within it. The car reached the doors to the bank, and stopped.

[65] Cst. Sean Osborne was also stationary within the bank parking lot when the Pontiac approached the second time. Cst. Osborne described his view of the vehicle as clear and unobstructed. He testified that he observed all four passengers within the Pontiac with their hoods up. As the car got closer to the entrance of the bank he saw more movement which he believed was the two passengers putting on masks and gloves.

[66] After no more than a minute, both passenger doors to the car opened, and Cst. Finnie and Cst. Osborne saw two men get out, their faces and hands covered, one of them carrying a bag and what both officers believed to be a gun. Both Cst. Finnie and Osborne called out what they had seen over the radio, by saying "they're masking up" and "gun."

[67] The two hooded men entered the first set of doors to the Scotiabank, but within seconds were sprinting back in the direction of the Pontiac, which had remained idling in the same spot, with the passenger doors still ajar. The two men hopped quickly back in.

[68] Cst. Jake Henderson called out the takedown. He drove directly at the suspect vehicle and stopped his vehicle right in front of it to prevent it from leaving. He looked through his windshield and held up his police badge, making eye contact with the driver and front passenger. The driver put the car into reverse and accelerated quickly, ultimately striking a parked civilian vehicle with considerable force. Cst. Henderson moved his police vehicle up against the driver's side panel of the suspect car, and exited. Three other officers followed suit by advancing their cars towards the Pontiac to pin it in and arrest its occupants.

[69] Cst. Henderson raced to the driver's side of the suspect vehicle, with his firearm drawn, pointed at the driver. His badge was visible and he was shouting "police, show me your hands, get out of your car" repeatedly. There were by now multiple CRU officers approaching the vehicle from all sides, making similar loud demands of the occupants.

[70] Cst. Henderson looked directly at the driver, who looked at him, but kept his right hand down out of the officer's view. The officer repeated his demand to the driver to show his hands. The driver did not comply. Cst. Henderson opened the driver's door, and repeated his demands, with his firearm still drawn. There was no response from the driver.

[71] Cst. Henderson re-holstered his sidearm and attempted to physically pull the driver out of the car. The driver clenched up and leaned away from the officer in resistance. Eventually Cst. Henderson succeeded in extracting the driver from the car, but there was continued active resistance from the subject, who was of considerable size. Cst. Henderson struck the driver at least once in the back as well as in the knee in order to take the driver to the ground. Cst. Davis came to assist in gaining control of the suspect, who was still resisting by keeping his hands tucked tightly under his chest.

[72] The subject refused to show his hands, which Cst. Henderson and Davis were collectively not able to secure, despite their best efforts of wresting with the driver to release them. Within a few moments of this struggle, a member of the TAC unit attended and deployed a taser to subdue the driver. Eventually compliance was achieved, and the driver was arrested, provided rights to counsel, and received medical attention to remove the taser prongs.

[73] The driver was identified as M.R.-M. S.W. was located in the front passenger seat, still hooded and gloved, with a bag worn around his body. Within it, a large mallet was located. A.M. was in the rear passenger seat, also hooded and gloved, with a tan mask still over his face. There was an additional satchel located in the rear passenger seat, which contained a large kitchen knife. Both A.M. and S.W. offered resistance to their extraction from the vehicle, and arrest. Tasers were deployed to gain their compliance and to effect their arrest. A fourth individual, K.S., was arrested from the rear driver's side of the Pontiac.

[74] All four parties were placed under arrest for robbery, and transported to the Division where their clothing was seized and submitted into property. A pair of white Nike Air Jordan shoes with distinctive blue soles and turquoise laces were seized from A.M. The shoes appeared similar to those observed on the video surveillance of the May 25th robbery.

Arrest of K.K.

[75] At 1:00 a.m. on June 16th, investigators used the tracking device which had been installed on the BMW to find K.K. He was located operating the vehicle at a gas station in Mississauga by Cst. Henderson and Osborne. An unknown male was in the front passenger seat and an unknown female was in the rear seat. K.K. was arrested for the May robberies, without incident.

[76] Cst. Henderson searched the BMW incident to arrest. He located two items of interest in the trunk of the car, which was accessible to the interior of the car via a compartment door between the back seat and the trunk. These two items were a black knitted balaclava and a pair of yellow and green gardening gloves – similar to the items worn by the robber clothed in black during the May 10th robbery.

Items seized by Search Warrant

[77] A search warrant was executed at the M.'s residence on June 18th, both by members of the Central Robbery Unit and another unit of the Peel Regional Police. Forensic identification services members photographed the scene first, then the investigative teams conducted their search.

[78] Cst. Henderson located a gun holster along with a disassembled handgun in the cold cellar area beneath the stairs to the basement. Cst. Henderson did not believe that the item was consistent with the firearms which had been observed on surveillance being used in the commission of the May robberies, so the item was not seized by Central Robbery.

[79] Within the bedroom which it was believed A.M. shared with his sister was photographed, then searched. There were two twin beds in the room, which was quite unkept. From the bed on the left, which was essentially covered with clothing, several items of interest were seized. Among these were: grey Nike sweatpants with a white and blue waistband, darker grey sweatpants with light grey waistband, and a blue and grey Under Armour hoodie. These items of clothing were seized based on their similarity to those worn by one of the suspects to the May 10th robbery. A.M.'s photo ID card from his school was also seized from the bedroom dresser.

[80] On the same day, a warrant was executed at S.W.'s residence at […]. Cst. Finnie searched S.W.'s bedroom and located his student ID card, as well as a black Nike hoodie similar to that which was worn by one of the robbers during the May 10th robbery.

ANALYSIS

a) Leaney analysis

[81] The Crown brought an application to permit the receipt of the lay opinion evidence of recognition from Cst. Michael Hranycey, with respect to the identification of S.W. in the surveillance footage captured from the first robbery. Cst. Hranycey was the community liaison officer assigned to J. secondary school at the relevant time. Upon receiving the bulletin with still images prepared by the Central Robbery Unit in relation to the May 10th robbery, Cst. Hranycey said that he immediately recognized the suspect wearing the black Nike hoodie with his face partially covered to be S.W.

[82] A voir dire was conducted according to the principles of Leaney to determine if the two preconditions for admissibility were met, namely: that the proposed recognition witness had a "prior acquaintance with the accused" and was "in a better position than the trier of fact to identify the perpetrator": Leaney, [1989] 2 S.C.R. 393, at p. 413.

[83] Between 2017 and 2019, Cst. Hranycey was the school resource officer assigned to J. high school, in Mississauga. He attended the school daily as part of his regular duties, in which he served as a liaison between the school and the Peel Regional Police. His responsibilities included doing presentations to students on various safety issues, attending school assemblies, conducting classroom visits, and having regular interactions with students in the hallways.

[84] On May 16, 2018, Cst. Hranycey received the bulletin from the Central Robbery Bureau of Peel Regional Police, which included still photographs from the video surveillance of the May 10th robbery at the Scotiabank at 660 Eglinton West. Cst. Hranycey was aware of the location of the bank, as it is only a short 5-minute drive from the school. It was not suggested to the officer that any of the students of his school were subjects.

[85] Upon viewing the bulletin, Cst. Hranycey said he recognized the male party wearing the black hoodie in the photos to be S.W. He testified that he made this recognition based on his dealings at school with him, and the resemblance between the person he knew, and the one depicted in the images – primarily based on "his eyes, skin complexion and build."

[86] Cst. Hranycey testified that he believed S.W. to have been approximately 5'11" to 6' in height, with black skin and an average build, which he believed to be consistent with the images in the bulletin.

[87] Another feature which the officer said he recognized of S.W. from the images were S.W.'s "dopey" eyes. Cst. Hranycey explained that what this descriptor meant to him was that S.W.'s eyes were "sunken, like his eyes were always tired, and they were closer together than the average person". The officer said that he remembered these characteristics of S.W.'s eyes from his first meeting and subsequent interactions at school, and he believed that the portion of the man's face depicted in the CRU bulletin was definitively S.W.'s. Cst. Hranycey conceded that he never made a note of S.W.'s eyes having these distinctive characteristics following any of his interactions at J. high school. The officer stated that it would not have been his habit to make notes about students unless there was a particular incident for which such notations would have been warranted.

[88] Cst. Hranycey said that he saw S.W. at school regularly, on average about 12-24 times a month, between February and May 2018, at a minimum of once or twice a week. In terms of more direct or prolonged contact, Cst. Hranycey explained that on "many" occasions, he was called to the VP's office to speak with S.W. directly about his non-attendance in class. The officer estimated having had approximately one to two dozen such interactions, as well as around half a dozen direct conversations with S.W. In terms of the duration of these interactions, the officer estimated that they would have lasted "no more than several minutes". Cst. Hranycey explained that students such as S.W. whose attendance was less than fully compliant tended to attract more of his focus and attention as a school resource officer.

[89] On April 5, 2018, the officer had direct contact with S.W., for the purpose of arresting him on a breach of a previous court order. Cst. Hranycey personally transported S.W. from school to the division, and remained with him while he was booked into the station. During this process, the officer was within the range of a few feet from S.W. while speaking and interacting with him.

[90] Having heard the evidence and submissions of counsel, I have concluded that the Crown has established that Cst. Hranycey's opinion evidence of recognition in relation to S.W. in the May 10th, 2018 video surveillance is admissible.

[91] Cst. Hranycey had known S.W. for approximately three months, prior to his observation of the central robbery bulletin capturing images of the May 10th robbery. During that period, Cst. Hranycey described having had regular contact with S.W. within the context of his role as the community liaison officer assigned to S.W.'s high school. There was reason for Cst. Hranycey to be aware of who S.W. was, as S.W. struggled with regular class attendance, which brought him to the vice-principal, and by extension, Cst. Hranycey's attention. Cst. Hranycey spoke directly with S.W. in the VP's office on "several occasions" during which time he had direct, face-to-face conversations with S.W., within close physical proximity, for a period of several minutes. Cst. Hranycey would inevitably have had the opportunity to make superior observation of S.W.'s facial and physical features during these conversations than the court has had the opportunity to make while observing S.W. in court.

[92] Still more significant would have been the opportunity for observation and recognition of S.W. on the occasion of Cst. Hranycey personally arresting him in April 2018. On this occasion, the officer's sole attention would have been focused on the task of conveying the words of arrest, rights and caution to S.W. as his young detainee. The officer went on to transport S.W. to the division, and remained with him while he went through the process of being lodged: a process of over 40 minutes' duration, during which the officer remained in S.W.'s direct company.

[93] On behalf of S.W., Mr. Erskine characterized Cst. Hranycey's opportunity to have recognized his client in the CRU bulletin as being effectively limited to this latter interaction of his arrest, which counsel characterizes as the only meaningful interaction which the officer had to observe him. Counsel also urged me to conclude that the officer's description of S.W.'s "dopey eyes" is an entirely subjective descriptor which ought to be rejected as a meaningless basis for the officer's purported recognition of S.W.

[94] However, it was clear from the officer's evidence that it was on the basis of the totality of his prior acquaintance with S.W., including the more mundane day-to-day experience of seeing S.W. in the hallways at J. high school, to needing to meet with him individually on several occasions to speak about his attendance record, to finally effecting his arrest on April 5th, 2018 that Cst. Hranycey said he was confident in his recognition of S.W. in the images contained in the Central Robbery Bulletin on May 16, 2018.

[95] While I do agree with the tenor of Mr. Erskine's criticism of the officer's use of the unfortunate descriptor of "dopey" to describe S.W.'s eyes, Cst. Hranycey did consistently explain with more objective terms what it was that he meant by this description. He said that S.W.'s eyes appeared to be "sunken," "tired" looking, and close together. The officer testified that he remembered this feature of S.W.'s eyes from having spoken to him in the hallways, and at the school office, as well as during his arrest. These more neutral terms are among those which I accept that the officer relied on, in addition to his observation of the skin tone and stature of the person depicted in the CRU bulletin.

[96] At the threshold determination under Leaney, the court must decide whether there is "some basis" for the opinion on recognition, before it can be given any weight: Berhe, 2012 ONCA 716, at para. 21. The "prior acquaintance" requirement under Leaney is aimed at precisely this question: allowing the trial judge to sort out whether the witness is sufficiently familiar with the person sought to be identified, such that they can be said to have articulable basis for their opinion. I conclude that the evidence of Cst. Hranycey does satisfy this threshold. The officer had upwards of two dozen interactions with S.W. during the four months of being acquainted with him as the resource officer at J. high school. Several of these interactions included direct verbal exchanges of some prolonged duration, and in close proximity. The officer was able to describe the features of S.W.'s face and stature upon which he relied in offering his opinion on the identity of the suspect in the CRU bulletin. I accept that the officer's position was superior to the court's for the purpose of the identification of the suspect captured on surveillance, and his evidence is admissible on this basis. The weight to be given to this evidence, on the ultimate issue of identification, is a separate issue for determination.

a) Similar Fact Application

[97] The Crown applied to have the court consider evidence across counts as similar fact evidence going to identity. Ms. Goulin filed an application and authorities in support of her argument, which was made at the conclusion of the trial. Defence counsel also provided authorities on the specific issues of similar fact going to identity and the appropriate boundaries of inference-drawing in this context.

[98] The parties essentially agree on the law but disagree on the application to the evidence in this case. I will summarize the general principles of law and then apply that law to the evidence to determine admissibility of the proposed similar fact evidence.

Applicable Legal Principles

[99] Evidence of similar acts is presumptively inadmissible, whether it is evidence proposed for use across counts or evidence of extraneous acts: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para 31; R. v. Durant, 2019 ONCA 74, at para 82. Exceptions to the inadmissibility of similar acts can be made where the probative value of the evidence, in legitimate paths of reasoning, outweighs its prejudicial impact: Handy, at para. 42.

[100] The probative value of similar fact evidence derives from the objective improbability of coincidence. Probative value is assessed in relation to the specific issues at trial to which the impugned evidence is said to relate: Handy, at para. 78; R. v. Kanagasivam, 2016 ONSC 2548, at para 20. Different considerations apply depending on the use sought to be made of the similar fact evidence.

[101] Where the similar fact evidence is tendered to assist in proof of identity, as it is here, it is well-established that a high degree of similarity is required: Handy, at paras 77-80; R. v. Arp, [1998] 3 S.C.R. 339, at paras. 43, 45. The standard is sometimes described as "strikingly similar" or "highly distinctive" in the nature of a "signature". The high standard of similarity can be reached by reference to one signature, or a collection of significant similarities: Durant, at para. 90.

[102] In assessing the probity of similar fact evidence, the court should first consider the manner of the commission of the allegedly similar acts to determine whether they are likely committed by a common actor or group; Arp, at para. 45; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. The greater the similarity, the higher the probative value that the evidence will be assigned.

[103] In assessment of similarity in the manner of commission of acts looks to factors such as: proximity in time and place, similarity in detail and circumstances, number of occurrences, distinctive features, intervening events, and any other factors raised by the parties to address the unique circumstances in a given case: Handy, at para. 82; Perrier, at para. 22. This assessment is neither a close microscopic dissection of the evidence, nor is it one which flies too far overhead and views broad associations as significant: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60. It is a global assessment, rooted in common sense.

[104] Where this first threshold is met, the judge must go on to determine whether there is a link between the accused and the alleged similar act: Arp, at para. 54. There needs to be "some evidence" on which the trier could find that the similar acts were those of the accused, as a precondition to admissibility: Perrier, at para. 23; Kanagasivam, 2016 ONSC 2548, at para. 23. The evidence of linkage must be more than mere opportunity, but need not reach a probability or likelihood standard. The "some evidence" threshold has been described by various members of the Supreme Court of Canada as "not very high" (per Major, J. in Perrier, 2004 SCC 56, at para. 23), or as a "low one": (per Moldaver, J. in Jesse, 2012 SCC 21, at para 63.)

[105] When similar fact evidence is proposed on a multi-count indictment or information, the link between the accused person and one count will be relevant to identity on any other counts which have been found to have the requisite degree of similarity in the manner in which they were committed: R. v. McCormack, 2009 ONCA 72, at para. 59; Arp, at para. 53.

[106] There is an added layer of analysis when the alleged acts are those of a group. Just because a person acts with a group on one occasion does not mean he acted with the group on another: Perrier, at para 25; Kanagasivam, at para. 43. Owing to this reality, the requirement of evidence that links the accused to the similar acts is particularly important in the group context.

[107] When a group is alleged to have committed the similar acts, the court must first determine if the group composition is static or changing. Where there is a static group, in the sense that the group does not act without all of its members present, and participating, then the signature of the group can become the signature of the accused. Perrier, at para. 25.

[108] In a rotating group environment, there is a recognized risk that simply by virtue of an individual's membership in a group, he might become implicated in crimes that he didn't commit, based solely on the fact of his association: Kanagasivam, at para 45.

[109] Perrier prescribes the method for assuaging this risk. It is the evidentiary requirement of a specific connection between the accused and the similar acts of the group, as a precondition to admissibility. The link can be established in one of two ways: a) through evidence that the accused played a sufficiently distinctive role in the crimes that no other member of the group or person could have performed it; or, b) by "other independent evidence" linking the accused to each crime.

[110] Without one of these extra links, the required nexus between the similar fact evidence and the acts of a particular accused is absent, and it will not have sufficient probative value to outweigh the prejudice caused by its admission.

[111] As a final practical matter, the Crown in this case bears the onus of demonstrating, on a balance of probabilities, that the probative value of the similar acts outweighs the potential prejudicial effect such that it should be admitted across counts to aid in proof of identity. Although credibility and reliability assessments are generally not admissibility concerns, there is a limited assessment of credibility and reliability of evidence required to consider probative value in the similar fact application: Handy, at para. 134; Arp, at para. 47; McCormack, at paras. 54, 64.

Positions of the Parties

[112] Ms. Goulin submits that there are sufficient similarities between the robberies to conclude that they were committed by the same group. She argues that the membership of the group was mostly consistent for the May 10th and May 25th incidents, and that notwithstanding the change to the composition of the group on June 15th, there are sufficient evidentiary links between each member and each of the earlier offences to allow for the admissibility of the similar fact evidence on the issue of identity.

[113] Counsel for A.M., S.W. and K.K. collectively submit that the evidence that the Crown seeks to rely on lacks the degree of similarity and probity necessary to achieve threshold admissibility, on the question of group activity, at the first stage. It is argued that to the extent that there are similarities between the incidents, the similarities are in respect of factors too generic to be considered probative. The defence also maintain that there are many dissimilarities which point away from the commission of the offences by the same group.

[114] On behalf of each of their clients, all three counsel further argue that the Crown's evidence fails to establish the additional specific link between the individual accused and each robbery necessary before similar fact evidence can be considered on the issue of identity in the rotating group context.

Analysis

[115] I will first assess the similarity between the acts, then consider linkage evidence, and finally weigh the probative value of the evidence against its prejudicial effect.

i) Is there a sufficient degree of similarity between the acts to conclude, on a balance of probabilities, that the same group likely committed the acts in question?

[116] Ms. Goulin relies on the following similarities between the May 10th and 25th robberies:

Location/Geographical Proximity:

(1) All of the robberies were committed at Scotiabanks, in Mississauga;

(2) All of the locations robbed were in the west end of Mississauga, within a short distance of where each of the suspects lived, and went to school;

(3) All of the locations were within plazas which bordered on residential neighbourhoods, and were highly accessible on foot;

(4) No single location was robbed twice.

Time Frame:

(5) The robberies occurred within the span of two weeks.

Time of Day:

(6) Time of day of all counts was similar, although not distinct. All of the robberies happened in the afternoon or evening, after school hours. The times ranged from 2:30 p.m. to 7:50 p.m.

Clothing Worn:

(7) The perpetrators on each date wore hoods over their heads, drawn tightly;

(8) The perpetrators on each date also wore masks – either balaclavas under the hoods, or scarves tied above them;

(9) The robbers wore gloves, which were always mismatched;

(10) One robber carried a bag or backpack over his body during each robbery.

Manner of Commission:

(11) The "takeover" style of the robberies was the same, wherein the robbers hurdled the tellers' wickets upon entering, and focused their attention almost exclusively on the tellers' drawers;

(12) There were no other "takeover" style robberies at Scotiabanks in Mississauga in May or June 2018.

Demands/Threats:

(13) In each of the completed robberies, the perpetrators entered the banks making loud, constant and aggressive demands of both the tellers and patrons to get down and to hand over the money.

Use of Weapons:

(14) One firearm was brandished in each of the robberies;

(15) In both May robberies, the gun was pointed directly at the tellers at close range. Whereas staff members at the May 10th location recalled one of the robbers threatening to shoot, the staff on May 25th did not hear any such specific threat.

Number of Assailants:

(16) For the May 10th robbery, two assailants entered the bank. On May 25th, there were three.

Foot to Vehicle Getaway:

(17) In each of the robberies, the perpetrators fled the bank plazas on foot in the direction of residential streets where it is believed that they were picked up by a getaway vehicle.

[117] The assessment of whether similarities rise to the degree of significance needed to admit evidence on the issue of identity is not meant to be a mathematical tally, but rather a holistic assessment of the similar and dissimilar factors: Shearing, at para. 60; Kanagasivan, at para. 149.

[118] Considering all of the factors reviewed above, I find the events involving the May 10th and May 25th robberies to be so significantly or strikingly similar as to overcome the possibility of coincidence. On the whole of the evidence, I find that these robberies were committed by the same group. I am not troubled by the variations in words used, or the number of assailants who participated. I do not find that these dissimilarities, and other minor differences identified, to detract from the cogency of the close proximities of location, nature, clothing, and manner of commission of these offences.

[119] I acknowledge that on May 25th there were three robbers, not just two, who entered the Scotiabank on Thomas Street. It is in this sense admittedly different. However, I have found that it fits the pattern of distinct similarity, even with the inclusion of a rotating group member. In McCormack, Justice Watt held that while a unique trademark common to all incidents sponsors admission, so too do a number of similarities in combination which "by their cumulative effect, warrant admission" (at para. 51). I have reviewed the very strong similarities in location, time frame demands, approach, clothing, weapons, departure, flight and roles of individuals in reaching my conclusion that this set of offences are so significantly similar that I am satisfied that they were committed by the same group.

[120] For the most part, the similarities across counts are quite striking in nature. The robberies all take place at Scotiabanks, in strip plazas, within a small geographical radius. The offences were brief, and committed quickly and hurriedly. The robbers in each incident displayed impressive speed and agility in order to leap the counters with ease. In both sets of robberies, the clothing worn by the perpetrators was an effective uniform: of a tightly bound hoodie coupled with a face mask or scarf, as well as gloves. A handgun was pointed by one of the robbers in each incident, while all members of the group used loud verbal demands to force the tellers' compliance. Witnesses to both incidents observed the masked robbers running from the location of the banks, towards residential areas. I have given careful consideration to the dissimilarities which existed, but conclude that they were likely the product of different members playing different roles on each occasion.

[121] I am satisfied that on a balance of probabilities, that the acts are so strikingly similar that they were likely committed by the same group.

Stage Two: Evidence of "Linkage" evidence to individual suspect(s)

[122] At the second stage of the similar fact analysis, I must determine whether there is a specific evidentiary connection which can be drawn between each accused and the similar acts of the group. Unless it can be established that the individual played a distinctive role in the crimes, there must be "other independent evidence" to establish their linkage to it: Perrier, at para. 25.

[123] Importantly, the fact that A.M. and S.W. have admitted to being members of the group who participated in the June 15th incident cannot be relied on to suggest that they acted as members of the group on earlier occasions: Perrier, at para. 40.

[124] The admissibility test for linking an accused to the similar acts of a rotating group is "some evidence," and that evidence must be comprised of something other than his simple membership in the group. In Kanagasivam, Justice Fairburn explicitly rejected the argument that a higher threshold for the linkage test should be imposed in the group context for assessing similar fact evidence (at para 50). What is required is "some independent evidence" of linkage in order for the evidence to be admitted against each accused, for each count.

[125] After considering all of the evidence, I have concluded that the Crown's similar act application with respect to S.W. and K.K. fails, due to a paucity of independent evidence capable of linking them to each count. I have reached a different conclusion with respect to A.M.

[126] With respect to the May 10th robbery, the following is the evidence which I conclude is available to link A.M. to the incident:

• Witness descriptions of the robber in the green hoodie (assessed for consistency or inconsistency with what is known of A.M.);
• The surveillance videos and stills from the scene, which permit my own observation of the similarities between the suspects A.M., as per Nikolovski;
• The evidence that A.M. is left-handed.

[127] The threshold assessment of "some" evidence of linkage has been described as a relatively low one. It must be remembered that the determination being made at this stage is not on the ultimate issue of whether identity has been proven beyond a reasonable doubt.

[128] In assessing the evidence of linkage between A.M. and the May 10th robbery, I have considered the descriptions offered by the witnesses on scene and compared them to what I know, based on my own observation of A.M., over the course of this 26 day trial.

[129] The suspect in the green hoodie was described by the majority of witnesses as "light skinned black" or "mixed race," tall and slim. One witness described him as white. Two of the tellers who were fairly near to him were able to describe his hair, which was quite visible at the sides of his head and forehead, due to his somewhat gaping green hoodie. The witnesses said that his hair was curly, or tightly curled, which led them to deduce that the suspect was partially black. One teller was able to recall that the suspect's eyes were brown. His age was estimated to be in his early 20s.

[130] I had the benefit of comparing the video surveillance still and videos from May 10th to both the runsheet photo of A.M. which was introduced as an exhibit, as well as to A.M. himself before me in court each day for in excess of a month-long trial. I also learned from the evidence called that A.M. is left-handed, as is the robber in green wielding the gun in his left hand during the robbery. I am satisfied by my own comparison of the consistency of the physical and facial features discernible on the May 10th video, along with the descriptions of the scene witnesses, to what I know of A.M., to conclude that there is "some" evidence of linkage between he and the May 10th robbery.

[131] The evidence of linkage between A.M. and the May 25th robbery is much more straightforward. Four items of clothing which bear a striking similarity to those items worn by one of the suspects during the Thomas Street robbery were seized from A.M. These items are sufficiently unique, and therefore probative, to achieve the threshold of "some evidence" of linkage between A.M. and the May 25th incident.

Stage Three: Balancing Probity and Prejudice

[132] Finally, I must balance the probity of the similar fact evidence applicable to A.M. against its potential prejudice. The probative value of the similar fact evidence of identification is high, as it goes toward the only live issue in this case. There is no disputing that the two May robberies transpired exactly as shown in the videos: the only question is who committed them. The threshold of significant or striking similarity has been met, and the evidence is patently probative.

[133] The similar fact evidence here was received as part of a blended hearing, as part of the totality of evidence which would otherwise have been heard in respect of all counts. There was no time or complexity added to the proceedings, and no risk that bad character evidence, not otherwise considered, would lead me towards impermissible propensity reasoning. Sitting as a judge alone, I caution myself that I cannot reason that an accused person who is linked to one allegation of criminality is therefore the sort of person who is more likely to have done the other acts alleged. The prejudicial risk of admitting similar fact evidence on a judge alone trial is recognized to be slim to none.

Conclusion on Admissibility

[134] As a result of the independent evidence of linkage between A.M. and both the May 10th and May 25th incidents, the similar fact evidence application is allowed, in order to permit cross-count consideration on the issue of identity.

[135] Briefly stated, while there was clear evidence of linkage between both S.W. and K.K. to the May 10th incident, I have concluded that there is a lack of independent evidence of linkage between either party and the May 25th incident in order to permit consideration of similar fact evidence on the issue of identity across counts. The similar act application in respect of S.W. and K.K. is dismissed.

[136] I turn now to consideration of all of the evidence as it applies to the Crown's case against each defendant on its merits, in reverse chronological order, beginning with the offences on June 15th, 2018.

June 15, 2018 Scotiabank Robbery

[137] A.M. and S.W. both conceded that convictions should be entered for each of them on counts 10 & 11: Attempted Robbery and Disguise with Intent. These concessions were very reasonably made, given that both young men were caught fleeing from the scene of what was obviously a botched robbery attempt, while visibly disguised. Convictions are hereby entered against both A.M. and S.W. on these counts.

[138] A.M. and S.W. jointly dispute the remaining count of Possession of Stolen Property, on the basis that the Crown's evidence has failed to establish that they had either knowledge or control of the stolen red Pontiac in which they rode to the scene of the robbery.

[139] M.R.-M. disputes both the Attempted Robbery charge and the Possession of Stolen Property charge, based on a similar argument, of a lack of evidence of his mens rea with respect to both counts.

Attempted Robbery: M.R.-M.

[140] M.R.-M. was never a target of police surveillance or suspicion in relation to any of the earlier robberies. His first appearance in this investigation was on the date of the final takedown when he was arrested as the driver of the stolen Pontiac which delivered A.M. and S.W. to the location of the attempted robbery.

[141] M.R.-M.'s observed involvement with the alleged co-conspirators began sometime earlier on the evening of June 15th, when A.M. was observed pulling his Honda Civic containing three other occupants into a townhouse complex on Fourwinds Drive. Nine minutes later, the stolen red Pontiac carrying four occupants, including A.M., raced from the complex. M.R.-M. was its driver. While there is no direct evidence of M.R.-M. having been one of A.M.'s three passengers just prior to the vehicle swap, it is both safe and logical to assume that he was.

[142] I agree with the Crown's characterization of the quick transfer of vehicles and hurried departure from Fourwinds towards the area of the robbery as powerful evidence of all parties' knowledge of both the vehicle's status, and the planned use to which it was about to be put.

[143] The evidence of the car's movements is also highly probative of M.R.-M.'s knowledge of the events which were about to unfold. After a brief and somewhat suspicious stop at a jewelry store, during which time K.S. entered the store while M.R.-M., A.M. and S.W. awaited him, M.R.-M. cruised by the front doors of the Scotiabank on Derry Street, pausing for just a few minutes before exiting again. After a very short drive away from the bank, M.R.-M. did a U-turn and proceeded directly to the entrance doors of the Scotiabank a second time.

[144] While this was happening, police officers saw all parties – including M.R.-M. – put their hoods up inside the car. Two of the occupants, including S.W. who was sitting directly beside the driver, also put on masks and gloves. S.W. had a bag containing a mallet slung over his shoulder, and another bag inside the car, which did not belong to the owner, included a large knife.

[145] M.R.-M. dropped A.M. and S.W. right at the front door to the Scotiabank, from where they burst into the branch, leaving their cars doors open as they went. M.R.-M. stayed on his mark, very clearly waiting for those two to return. The suggestion that M.R.-M. believed that his masked friends were attending the bank to make a lawful withdrawal at the ATM defies both reason and credulity.

[146] Finally, M.R.-M.'s after-the-fact conduct, of accelerating in reverse in an effort to evade apprehension by Cst. Henderson's initial advance of his police car is further evidence of his knowledge of the unlawful act which had been planned by the group in advance. Had M.R.-M. been ignorant of the criminality of A.M. and S.W.'s short trip to the Scotiabank, he would have had no reason to have sped off in such a panic from Cst. Henderson that he caused a collision with a parked vehicle.

[147] I am satisfied that the evidence of M.R.-M.'s knowledge of the plan to commit a robbery on June 15, 2018 has been well established beyond a reasonable doubt. Pursuant to s. 21(1)(b), I find M.R.-M. guilty of count 10, attempted robbery.

[148] Finally, M.R.-M.'s application under s. 7 of the Charter for alleged excessive force is hereby dismissed, with reasons to follow. Briefly stated, the applicant failed to establish that investigators used in excess of the force that was reasonably necessary to effect this objectively high-risk takedown.

Possession of Stolen Property: M.R.-M., A.M. and S.W.

[149] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control. (Morelli, 2010 SCC 8, at para. 16).

[150] The mens rea of possession can be established by evidence of actual knowledge or of willful blindness. Willful blindness is the chosen state of deliberate ignorance. An accused who suspects that property is stolen but who declines to make the inquires that will confirm their suspicion, preferring instead to remain ignorant, is culpable: Lagace (2003), 181 C.C.C. (3d) 12 (Ont.C.A.) at para. 28; Briscoe (2010), 2010 SCC 13, 253 C.C.C. (3d) 140 (S.C.C.).

a) Knowledge

[151] The assessment of willful blindness must be made on a subjective standard. The question is not whether the accused should have been suspicious, rather it is whether s/he was, in fact, suspicious: Malfara, (2006), O.J. No. 2069 (C.A.).

[152] The Crown submits that the doctrine of recent possession is also available to support an inference of the parties' knowledge with respect to the status of the vehicle. Any number of factors can be considered in determining whether a possession of a stolen item is "recent," including: the nature of the object, its rareness, the readiness by which it is likely to pass to another, and the ease of identification: Saieva v. The Queen, [1982] 1 S.C.R. 897; Morgan, 2013 ONSC 1522, at paras. 58-62.

[153] Mr. Thomas Monico was the registered owner of the Pontiac Pursuit G5. He last saw his car in his driveway in Peterborough, on the evening of June 10th, 2018. The keys to the car had been on the dresser in his adult son's bedroom. The keys, along with the car, were apparently stolen sometime around 10:30 p.m. Several of Mr. Monico's personal items were within the car when it was seized by police at the takedown, including his work glasses, a scarf, and several pairs of gloves.

[154] There is no evidence before me of how any of the defendants gained access to Mr. Monico's Pontiac, which they used 5 days after it's theft to commit a robbery. Notwithstanding the absence of this evidence, I am satisfied that the knowledge of each party can be readily inferred from the evidence which is available.

[155] I conclude that the doctrine of recent possession is available to infer knowledge in this case. While presumption of knowledge from recent possession has been held not to apply to common, easily transferable articles which are held for long periods of time, the same cannot be said for articles lacking these traits. M.R.-M., A.M., and S.W.'s use of a vehicle to which they had no connection to whatsoever makes their possession of it totally unexplained. In other words, I do not consider a vehicle to be an item which is "readily transferable" between teenagers. Also, within the vehicle were personal items which were plainly suggestive of ownership by someone else. Finally, the evidence of the group's rapid transfer between A.M.'s Honda Civic and the red Pontiac just before the robbery was committed is powerful and convincing evidence of all parties' knowledge of the nature of the item. Their conduct, in moving from a vehicle registered to one of the culprit's family, to another vehicle for which there was no such association was logically and internally aimed at avoiding detection by police. I am satisfied that M.R.-M., A.M. and S.W.'s knowledge of the status of the stolen vehicle has been proven beyond a reasonable doubt.

b) Control

[156] The evidence of M.R.-M. control of the stolen Pontiac could not be disputed. He was the sole driver of the vehicle both before, during and after the robbery. The elements of both knowledge and control by M.R.-M. have therefore been established beyond a reasonable doubt. A conviction will be entered on count 12.

[157] Control is a more elusive concept to prove against passengers of vehicles. Can it be said that the Morelli requirement of an "act of control" by A.M. and S.W. over the stolen vehicle has been proven beyond a reasonable doubt?

[158] Minutes before the four parties were first seen in the red Pontiac, they had been observed in A.M.'s Honda Civic which he had been driving. While it may be tempting to infer that by his relinquishing the role of driver, and taking the rear passenger seat in the stolen Pontiac as one of the principals to the anticipated robbery, A.M. must have directed M.R.-M. to assume the role of driver, and thus exercised an "act of control" over the vehicle, the evidence is insufficient to permit such a finding. There simply is no evidence of either A.M. or S.W.'s control over the vehicle itself, such that they could be fixed with the legal responsibility for its possession.

[159] Count 12 is dismissed against both A.M. and S.W.

Identification evidence & Nikolovski

[160] The Crown seeks to rely heavily on the video and photographic evidence from both the May 10th and 25th robberies, as well as the Central Robbery Unit surveillance images as among its primary sources of identification evidence for the remaining counts against A.M., S.W. and K.K. Before analyzing the individual items of evidence sought to be relied on against each person, I refer to the following principles of law which guide my analysis with respect to each.

[161] It has repeatedly been recognized by courts in Canada that eyewitness identification has many frailties and has often been one of the bases for wrongful convictions. I am very mindful of these risks.

[162] The Supreme Court of Canada also recognized in Nikolovski that many of the classic "frailties" of identification evidence do not exist. In the Nikolovski analysis, the eye "witness" under consideration may be a surveillance photo or video which is far superior to a human eyewitness, in the sense that it is "a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events" (Nikolovski, per Cory J.) Also, as Justice Ducharme observed in Sheardown, it is significant that unlike most eyewitnesses, the trier of fact "can observe the accused and the comparator photographs for as long as the trier deems necessary".

[163] In conducting the Nikolovski analysis, a clear caution must still be exercised by the trier, who must go on to carefully consider two key variables: the quality and clarity of the photo or video evidence, and quality of their own opportunity to compare these items of evidence with the accused.

[164] In assessing the quality and clarity of the photo or video evidence, there are two obvious issues for consideration. The first is the more practical one – the simple question of how clearly the photos or videos allow the trier to make observation of what the depiction purports to be. The opportunity for making an identification from a single still photograph of questionable quality is obviously quite different from the circumstance of being presented with high-definition video surveillance from multiple angles, which allow for slow-motion review, pausing and zooming features. Beyond the issue of a depiction's technical clarity is of course the related issue of what the image or video actually captures, in terms of the number of purportedly distinct features which are said to allow for the comparison, and legal identification to be made. A crystal-clear, high-definition image of a perpetrator in full disguise, in which no distinguishing personal features are visible will be given little to no weight in the assessment of identity.

[165] The second factor, of the quality of the trier of fact's opportunity to compare these items with the accused will also vary: depending on the length of the proceeding, where the defendant is positioned in court, whether or not he or she gives evidence from the witness stand, and the court's ability to make simultaneous comparison between the images and the person. Together, these factors will combine to determine the overall quality of the trier's opportunity to observe the alleged perpetrator.

[166] On this second factor, I make the following conclusions about the quality of my own opportunity to make observations of all three accused for whom identity was at issue at this case. This was a 23-day trial, in Courtroom #107. Due to the ongoing construction in the courthouse, the hallway which ordinarily permits the jurist to enter the courtroom from the back entrance, near the dais, was closed. As a result, I entered and exited the courtroom through the public entrance each day, and walked along the left side of the courtroom, past the prisoner's box, in order to take my place on the dais. By my rough calculations, I passed directly by A.M., S.W. and K.K. while they stood for each occasion of my arrival or departure approximately 184 times.

[167] This was an unusual circumstance which gave me the very unique opportunity to make close and careful observation of A.M., S.W. and K.K. While walking past them each day, I paused to look directly at each one of them, so that I could meaningfully evaluate the evidence before me on the pivotal issue of identity. I made notes of what I observed of their stature, skin tone, hair, eyes and facial features. I'm sure that this exercise felt somewhat uncomfortable for each of the young persons, which was of course not my intention. Rather, I felt that it was my duty to examine the physical features of each defendant as carefully as possible, as part of the critical exercise of comparison which I was responsible to do under Nikolovski. I turn now to that exercise.

May 25, 2018 Robbery

1) A.M.

[168] The witnesses to the robbery at 3000 Thomas Street were unable to provide much more than generic descriptors of the three assailants who entered the bank. The video surveillance clips introduced into evidence explains why. The culprits' hoods were each tightly drawn over their heads and lower half of their faces, with extra scarves tied over top, revealing little more than the skin around their eyes. Three of the four witnesses inside the bank were unable to comment at all on the skin tone of the suspects. Only one, Mr. Tahir, stated that he recalled that one of the robbers had darker skin than the others, however he could attribute skin colour to any of the suspects. All of the suspects hands were completely gloved.

[169] While unhelpful on the issue of facial features, the witness' descriptions of the assailants' stature were not inconsistent with what is known of A.M. The robbers were all described as being tall, thin and athletic, which in both A.M. and S.W.'s case, are accurate.

[170] I have reviewed the video footage of the May 25th robbery on multiple occasions, and conclude that owing to the extent of the disguises worn by each of the suspects on that date, any identification made on the basis of the surveillance images would be unreasonable. The circumstances here are analogous to those in Hill, in which the Nova Scotia Court of Appeal concluded that the identification of a perpetrator could not be supported on the basis of images in which all but "a very small portion of the face" was covered by a t-shirt or towel for the entirety of the transaction. Therefore, Nikolovski is not available to the Crown for these allegations.

Clothing

[171] When he was arrested at the takedown on June 15th, 2018, A.M. was wearing a pair of blue and white Nike hightop athletic shoes. Photos of the shoes were made exhibits.

[172] Three other items were seized from A.M.'s bedroom within his residence: two pairs of jogging pants with distinctive waist bands, and a two-toned turquoise and grey nylon Under Armour hoodie.

[173] Exhibit 45H is a composite of still images taken from the May 25th robbery. It includes closeups for four items of clothing worn by one of the suspects, in combination: two overlapping pairs of joggers with distinctive two-toned waistbands, white and blue Nike hightop shoes with turquoise laces, and a patterned blue and grey Under Armour hoodie. In essence, the complete outfit worn by one of the perpetrators to the May 25th robbery was seized from A.M. I have examined each of the physical items submitted into evidence, and have carefully compared them to what I can see of the clothing worn by the suspect in the May 25th surveillance evidence. This examination leaves me with no reasonable doubt that each of the articles of clothing are in fact one and the same.

[174] Standing alone, I consider this to be powerful and persuasive circumstantial evidence which allows for no other reasonable inference other than A.M.'s identity as the perpetrator of the May 25th incident, in the blue and grey jacket, doubled track pants, and bright white and blue Nikes. While it is true that A.M. shared his bedroom with his sister, and therefore did not have completely exclusive access to the items seized from within their jointly-held space, any suggestion that his sister was the one who wore all four items, including the shoes later taken from A.M.'s feet, would not be a reasonable one.

N.M.

[175] N.M. was a friend of K.K.'s, through whom he became acquainted with A.M. Late in the evening of May 25, 2018, N.M. picked up K.K., A.M., S.W., and two other unknown men and drove them to an after-prom party. An incident occurred at the party, causing the guests to quickly disperse. The same passengers re-entered N.M.'s vehicle after the party in order to depart.

[176] N.M. described having heard a statement made from the backseat of his vehicle, where A.M. was a passenger, to the effect that a robbery had been committed that day. N.M. checked the Peel police newsfeed on his phone, and saw the press release about the Thomas Street robbery.

[177] The Crown argues that N.M.'s evidence, of A.M.'s purportedly inculpatory assertion, is additional evidence of his complicity in the May 25th robbery.

[178] Ms. Budgell strenuously opposes any reliance being given to N.M.'s evidence, based on the serious reliability and credibility flaws it includes. Among these concerns are is the fact that N.M. was initially charged for his participation in incidents of criminality at the party on May 25th, but his charges were ultimately withdrawn, in exchange for his cooperation with the police in other investigations. Also, Ms. Budgell points to the overall vagueness and reluctance of N.M.'s testimony, which she suggests should engage real concerns with its reliability and credibility.

[179] I accept Ms. Budgell's submissions in their entirety on this issue, and place no weight on the evidence of N.M. In the final analysis, N.M. essentially resiled from his recollection of any reliable details surrounding the alleged assertion by A.M.'s, and offered no reliable evidence of identification.

[180] Without giving any consideration to the evidence of N.M., I am yet satisfied that A.M.'s possession of four distinct items of clothing, worn collectively during the commission of the May 25th robbery, is conclusive of the issue of his identity as one of its perpetrators.

[181] Finally, the witnesses within the bank on May 25th consistently described all three robbers as each issuing loud verbal commands to the staff and patrons to get down and to give up all the money. One of the other robbers (in black) pointed the gun at the tellers, while nearest to them behind the counter. When one of the tellers (Ms. Coric) ran from behind the counter towards one of the offices, the robber in blue and grey intercepted and physically re-directed her back behind the counter, where the other two assailants were. The evidence allows for no reasonable doubt as to A.M.'s knowledge of the group's intended and actual use of a firearm to commit the offence of robbery.

[182] There will be convictions on counts 7, 8 and 9.

2) S.W.

[183] My earlier findings with respect to the poor quality of observation offered by the May 25th surveillance footage, due to the near complete coverage of the parties' faces by their hoods and scarves are equally applicable to my assessment of the case against S.W.

[184] No Nikolovski identification could be attempted, nor supported on the basis of the May 25th surveillance evidence.

[185] What remains, in the case is no more than the very generic descriptions by the witnesses of the three assailants as "tall" and "fit," only one of whom (Mr. Said Mohamad) described any of the suspects as black.

[186] I agree with Mr. Erskine's submission that the generic criteria said to connect S.W. to the May 25th incident (tall, fit, agile, possibly black young man) are no stronger in combination than they are in isolation. The Crown's case against S.W. falls well short of proof beyond a reasonable doubt of his complicity in the May 15th incidents.

[187] I find S.W. not guilty of counts 7, 8 and 9.

3) K.K.

[188] There is no direct evidence of K.K.'s participation in the May 25th robbery.

[189] The Crown seeks to rely on the following circumstantial evidence to establish his identity as the alleged getaway driver:

(1) The evidence of Ms. Sidra Fahad, who described observing three individuals climbing over her fence from the direction of the Thomas Street bank, and then hopping another fence which gave them access to Stoney Crescent;

(2) The evidence of Ms. Abimbola Olaoyi, who described seeing a "slick" tinted black vehicle, similar to her daughter's BMW, positioned on Stoney Crescent at a proximate time to the robbery;

(3) The evidence of Cst. Kurtis Vaughan and his canine partner "Timber," who tracked an apparent human scent trail from the Thomas Street parking lot, over the fences identified by civilians as having been cleared by the suspects, out to a spot on Stoney Crescent where Timber went "heads up," in a manner that suggested the track ended where the suspects had been collected in a getaway vehicle.

[190] Ms. Goulin submits that common sense dictates that there had to have been a getaway car, and that by a process of deduction from the circumstantial evidence called, that the getaway car had to be K.K.'s BMW.

[191] Mr. Owoh, on behalf of the defendant, argues persuasively that at its highest, the Crown's circumstantial evidence is arguably capable of establishing only half of inference sought to be relied by the prosecution, namely: that a getaway car was used. Relying on the principles of Villaroman, Mr. Owoh argues that a number of other reasonable inferences are available on the evidence, beyond the conclusion that it was K.K.'s car. Among these, he suggests, are the possibility that if it was a BMW, it was other than K.K.'s – and finally, that it was not a BMW at all.

[192] I conclude that the first portion of the suggested inference advanced by the Crown, namely, that there was a getaway car, has been established beyond a reasonable doubt. In making this finding, I rely primarily on the evidence of Cst. Vaughan, whose testimony I accept as having conclusively established that the assailants fled from the Thomas Street parking lot and over the residential fences which he and Timber impressively followed, to arrive at the dead end of the scent trail on Stoney Crescent.

[193] Cst. Vaughan detailed the many successes of Timber's training and deployment with notable professionalism and humility. His evidence established that by the hundreds of hours spent together in daily training scenarios, he was able to interpret Timber's cues with skill and accuracy. I accept Cst. Vaughan's evidence that if the suspects' scent trail had continued past the curb of Stoney Crescent, he and Timber would have found it.

[194] What remains is the second half of the deduction: what was the getaway car, and who was its driver?

[195] I have concluded that the circumstantial evidence proffered does not support the argument that the BMW driven by K.K. is the only reasonable inference which could be drawn.

[196] Indeed as Mr. Owoh emphasized in his submissions, Ms. Olaoyi's description of the car that she saw on Stoney Crescent was itself somewhat vague and equivocal. She said the black car looked "a lot like" her daughter's BMW, based on his shape, which she observed only by its profile. Ms. Olaoyi did not observe the distinctive blue and white BMW logo on the car, or offer any other descriptors of the car, beyond it being "slick." She also testified that it could have been "any other car."

[197] I am unable to conclude that there could be no other vehicles, beside K.K.'s, which could reasonably fit Ms. Olaoyi's description. I note as well that on the surveillance footage captured from another Bonnie Street homeowner, at least two other black vehicles were captured in the area on May 25th.

[198] The evidence as it relates to K.K. for the May 25th, 2018 incidents leaves me with a reasonable doubt. K.K. is found not guilty of counts 7, 8 and 9.

May 10, 2018 Scotiabank Robbery

1) A.M.

[199] The Crown alleges that A.M. is the robber seen in the May 10th surveillance footage wearing the green hoodie and holding the gun. Ms. Goulin submits that there is sufficient consistency between the bank staff's descriptions of the robber, the runsheet and surveillance images of A.M., and my own observation of him in court during this proceeding to permit me to positively identify him pursuant to Nikolovski.

[200] Ms. Goulin also relies on two other pieces of circumstantial evidence of identity in support of the May 10th charges against A.M.: this left-handedness, and the robber's flight from the scene to a vehicle associated to one of his closest friends. The Crown is also entitled to cross-count consideration of the similar fact evidence in support of proof of identity for A.M.

[201] On behalf of A.M., Ms. Budgell points to certain inconsistencies in the descriptions of the civilians, as well as to remind me of the heightened risk of false identification which arises in situations like these, where the assailant's face is partially covered. Ms. Budgell provided me with the decisions of John and Campbell in which those courts declined to make a positive identification of the defendants based in part on certain items of clothing worn (hoods, hats) and poor camera angles which combined to make the identifications unsafe. I am urged to make a similar finding with respect to A.M. and the May 10th robbery in this case.

[202] Ms. Budgell also reminds me that there were no items of clothing associated to the May 10th robbery which could be associated to A.M., and it is suggested that left-handedness is too common a characteristic to be used in the calculus of proof of identity against A.M.

[203] The descriptions of the robber in the green hoodie given by the bank staff on their own are insufficient to establish that A.M. is the perpetrator. However, they are not without some utility.

[204] To be sure, as Ms. Budgell rightly points out, there are inconsistencies between the descriptions given, most notably that of Ms. Matute, who described the robber as white, with either brown, blond or red hair, as opposed to the three other employees who each described him as mixed race, or light skinned black.

[205] Ms. Haroon and Mr. Alhereth gave more detailed evidence of the robber's hair, which they said was visible on both sides of his temples and along the top of his forehead. Ms. Haroon testified that she could see "long curly hair" sticking out from his hoodie, around his face. Mr. Alhereth also described seeing curly hair "at the top of the hood and along the sides." Both Ms. Haroon, Mr. Alhereth and a third teller, Mr. Sagu, described the perpetrator as being light-skinned black or of mixed race. I agree with the accuracy of these descriptions, as they relate to the suspects hair and skin tone as they appear on the surveillance stills and video.

[206] I also note that the witnesses' descriptions of the physical characteristics of the suspect in the green hoodie are consistent with what is known of A.M. from both the runsheet photo and surveillance images, as well as with my own observation of him in court. A.M. is in fact tall, slim, and appears to be of either mixed-race or light skinned black complexion.

[207] I have reviewed the bank surveillance footage from the May 10th robbery on several occasions, and have benefitted from the ability to pause the video at multiple junctures to observe and compare the suspect's features to those of A.M. in the surveillance stills, runsheet, and physical presence in court.

[208] As a result of my opportunity to make several simultaneous comparisons between the person depicted in the May 10th bank surveillance imagery, and the known surveillance of A.M. as well as my extensive observation of him in court, I have concluded that there is an irrefutably strong resemblance between them.

[209] First, in contrast to the May 25th surveillance footage, the views afforded by the cameras at the May 10th robbery offer a far superior vantage point, and clarity of view of the suspects. Clip 3 captured the exterior entranceway to the bank, by which the suspects both entered and exited, at fairly close range. I am able to observe the visible facial features of both parties with significant detail from this clip.

[210] Clip 9 offered what I consider to be the best view of the suspect in the green hoodie. The camera was positioned behind the tellers' desks, facing out toward the customer area. This is the area which the robber in green occupied throughout the robbery, while the robber in black searched the tellers' drawers in the foreground. The robber in green keeps his left arm raised, pointing the firearm, which he periodically adjusts his face mask or scarf with the right. His green hood is over his head, but it is tied relatively loosely, such that it is gaping slightly at the sides of his head and at the crown of his head. There are several moments within the robbery when the suspect is looking directly towards the camera. I paused the video on each of these occasions and studied the robber's features carefully. The robber's high forehead and distinctly squared off hairline are plainly visible, as is his light brown complexion, and the tight curls of his dark hair.

[211] A.M. shares these unmistakably similar facial features. His high forehead meets his hairline in a near perfectly straight line, which bends a right angle at his temples. His eyebrows, like those of the robber in the green hoodie, are full, dark and lightly arched at the corners. His skin tone is identical to the man in green in the surveillance images, and his height and lean stature are also similar. I am satisfied that the evidence permits me to conclude that there is a very strong resemblance between the visible portions of the robber in green in the surveillance footage, and A.M.

[212] I acknowledge the Court of Appeal's finding in Rybak that as a general rule, a resemblance, without more, does not amount to an identification. However, it is also acknowledged that the combined force of evidence of a resemblance and other inculpatory evidence may assist in the prosecution's proof.

[213] There are three additional pieces of evidence on which the Crown relies to prove A.M.'s identity beyond a reasonable doubt. First, A.M.'s left-handedness. In the May 10th video, the robber alleged to be A.M. enters with the gun in his left hand, which he keeps raised throughout the incident, and points towards various staff members in a threatening manner.

[214] It is not disputed by his counsel that A.M. is left-handed, or that approximately ten percent of the population are left-handed. This is a relatively small percentage. Standing alone, this factor would be of limited probative value in the assessment of credibility. But it adds some weight to the cumulative evidence to be considered on this issue.

[215] Second: evidence of association. Ms. Goulin submits that I am entitled to consider the strong evidence of A.M.'s association to K.K. and by extension to K.K.'s vehicle, when assessing the evidence of the suspect's observed retreat to the K.'s BMW immediately following the robbery. I accept that the improbability of coincidence between these participants is a factor which contributes some weight to the inference that A.M. is the perpetrator.

[216] Finally, I can consider the similar fact evidence of the May 25th robbery, for which I have concluded that A.M. was a participant, in my assessment of the evidence of his identity among the rotating group of perpetrators on May 10th. Notwithstanding the addition of a third principal member for the May 25th incident, the general style of commission for both robberies are very similar. They involved quick, coordinated entry, a single gunman who largely controlled the tellers, and near constant verbal demands of compliance from all of the participants. The perpetrators of both incidents appeared to be young, fit and agile – with various members bounding with athletic ease over the counters. I am satisfied that the evidence supports the conclusion that these incidents were committed by the same group, of which A.M. was a member on each occasion.

[217] In conclusion, I am satisfied that the Crown has established the identity of A.M. as a perpetrator of the May 10th robbery beyond a reasonable doubt.

[218] Convictions will be entered on counts 1, 2 and 3 accordingly.

[219] In addition, a conviction will be entered on count 13, Fail to Comply Recognizance, based on Ms. Budgell's reasonable concession at the outset of her submissions.

2) S.W.

[220] The Crown seeks to rely on the following items of evidence to prove S.W.'s participation in the May 10th robbery:

(1) The Leaney identification evidence of Cst. Mike Hranycey;

(2) The court's own identification pursuant to Nikolovski;

(3) The black Nike hoodie;

(4) The seizure of the yellow and green gardening gloves and black balaclava in K.K.'s vehicle on June 18th.

[221] For the reasons outlined in my earlier ruling, I admitted the recognition evidence of Cst. Mike Hranycey for consideration on the ultimate issue of whether proof of S.W.'s identity in the May 10th robbery had been established beyond a reasonable doubt. Upon examining the Central Robbery Bulletin prepared from the surveillance stills of the May 10th robbery, Cst. Hranycey expressed his opinion that he recognized the robber in black clothing to be S.W., whom he had been acquainted with for approximately 4 months throughout his tenure as the resource officer at S.W.'s high school.

[222] I will not repeat the details of the extensive contact to which the officer made reference in support of his opinion of recognition as offered on the voir dire. I accept that the multiple instances of direct conversation and extended face-to-face contact which Cst. Hranycey had with S.W. during the period of their acquaintance offers some reliable evidence of identification. I also make this conclusion based on the quality of descriptors to which Cst. Hranycey referred in describing why he believed the perpetrator in black to be S.W. Cst. Hranycey said he recognized S.W. by his skin tone, stature, and most notably, by his "sunken" or "dopey" eyes which appeared closer together, and had a look of being "tired" all the time. While I don't necessarily agree with the officer's choice of adjectives for describing S.W.'s eyes, I understand the tenor of his description and do not disagree with its accuracy, by my own observation of the runsheets, surveillance imagery, and S.W. himself.

[223] S.W. has large, dark eyes which are heavily hooded and are fairly described as somewhat sunken. He has a strong, broad nose which has the effect of making his eyes appear to be somewhat closer together. His eyebrows are quite thick and pronounced.

[224] I conducted a similarly extensive and repeated review of the surveillance footage of the May 10th robbery as I did of the May 25th incident. I paused the video, and simultaneously compared it to the witness' descriptions, S.W.'s runsheet, the CRU bulletin, the police surveillance footage, and S.W. himself before me in court.

[225] I likewise cautioned myself with respect to the challenges of Nikolovski comparisons in circumstances where the suspect in the imagery is partially masked, as both robbers on May 10th were. I recognize that if a reasonable doubt remains as to his identity, S.W. is entitled to the benefit of it, and to an acquittal.

[226] The images from Clip 3 of the Scotiabank surveillance outside the principal doors offered the clearest and closest view of the suspect in the black clothing's face. These images permit me to observe the strong similarity between the suspect's dark skin tone, pronounced eyebrows, dark eyes, and prominent nose – and S.W.'s. From my review of all of the clips, I can also conclude that the suspect's tall, lean stature as described by the civilian witnesses is also consistent with S.W.

[227] Once again, I recognize that evidence of strong similarity under Nikolovski is not enough to ground a conclusion on the issue of identity, standing alone. Were I to be relying only on my own conclusion of the strong similarity between the surveillance images and S.W., I recognize that it would be unsafe to convict. However, there is additional circumstantial evidence of identification available in this case.

[228] I accept Mr. Erskine's submission that a black Nike hoodie with but a single distinctive white swoosh on the chest could hardly be described as a distinctive item of clothing registering a high degree of probity on the assessment of identification. It isn't a particularly distinctive item of clothing at all. Nevertheless, it happens to be the item of clothing worn on May 10th by one of the suspects. Thus the coincidence of this item in S.W.'s wardrobe offers some circumstantial evidence, of perhaps nominal weight, on the issue of identity.

[229] Finally, there is the evidence of the distinctive gardening gloves and balaclava, which appear in my assessment to be identical to those worn by the robber in black on May 10th, which are located in the trunk of K.K.'s BMW on June 18th. Mr. Qassim's evidence conclusively establishes that both robbers fled directly to the K. vehicle, which in itself offers circumstantial evidence of association – in both directions – between the robbers, and the getaway driver. The additional fact that these two unique items were left within the K. vehicle is further circumstantial evidence of the familiarity and association between the parties, which is consistent with what was plainly confirmed by the police surveillance evidence.

[230] In conclusion, I am satisfied that by the combination of the witness descriptions, Cst. Hranycey's recognition, the connecting physical items, together with my own confidence in the comparison I have conducted pursuant to Nikolovski, the Crown has established the identity of S.W. as a perpetrator of the May 10th robbery beyond a reasonable doubt. Convictions will be entered on counts 1, 2 and 3.

3) K.K.

[231] The following is the circumstantial evidence upon which I have concluded that the Crown has established beyond a reasonable doubt that K.K. was the operator of his family's black BMW into which A.M. and S.W. fled, and made their escape on May 10th, 2018.

(1) Limited access & opportunity. It is not disputed that the getaway car from the Eglinton Street robbery was the K. family vehicle. There were four members of the K. family seen by officers: K.K., his mother, father, and older brother. Police observed the BMW being driven by his mother and by K.K. On other occasions when it was seen, the driver of the vehicle could not be confirmed. K.K. was confirmed to have operated the BMW on a number of occasions after May 10th, at times in the company of his co-accused, on others with other unknown youth. On June 18th, 2018, he was arrested while operating the BMW. I am satisfied that K.K. could readily have accessed the BMW on May 10th, 2018.

(2) Similarity of physical features as observed by Mr. Qassim: Mr. Qassim saw the driver of the BMW from a distance of only a few feet, through the vehicle's windshield. While his view of the driver's face was partly obscured by the position of the rear-view mirror, Mr. Qassim was able to confidently describe the driver as a male with brown skin, probably Indian, with uniquely "high" hair which was short at the sides, but "neat" and "heavy on top." Surveillance photos taken of K.K. in early June were introduced and relied on by the Crown in support of its contention that Mr. Qassim's description of the driver's hair was both accurate, and probative of K.K.'s identity as the driver on May 10th. Several officers who conducted surveillance on K.K. in May 2018 also gave evidence in which they remarked on his uniquely puffy hair. I agree with Ms. Goulin's characterization of this rather unique physical evidence. The photograph of K.K. on the runsheet prepared on May 11th is also consistent with these descriptions of the driver's top-heavy hair.

(3) Dissimilarity of physical features between driver and other K. family members: K.K.'s brother was observed by the surveillance team on a number of occasions. He was described by Cst. Vanderwal as being much taller than K.K., with very short hair, in the style of a brush cut. Having observed both K. brothers, Cst. Vanderwal described their appearance as quite different.

(4) Strong association between K.K., A.M. and S.W. It was well-established by the surveillance conducted by the Central Robbery Unit after May 10th, that K.K., S.W. and A.M. were closely associated. They were seen together at each other's homes, schools, within each other's vehicles, shopping, eating at restaurants, attending court, or simply hanging out for prolonged durations at various Mississauga locations. The evidence of the parties' association is factor which I am able to consider in my evaluation of the totality of the circumstantial evidence as it bears on the issue of the identity of the driver of the BMW into which A.M. and S.W. fled on May 10th, 2018.

[232] According to Villaroman, before I may conclude that the circumstantial evidence points towards K.K.'s guilt, I must consider whether there are any other reasonable alternatives available on the evidence which point away, or raise a reasonable doubt as to guilt. If there are, then I must acquit. I need not consider speculative alternatives to guilt, only reasonable ones which arise on the evidence, or from a lack of evidence.

[233] Having carefully considered all of the evidence, I have concluded that the only reasonable inference available on the evidence is that K.K. was the driver of his family's BMW on the evening of May 10th, 2018, who waited on Guildwood Crescent while A.M. and S.W. committed the robbery, and raced back to the waiting car. While Mr. Qassim's opportunity to observe the driver might have been somewhat limited, it was clear enough for him to have seen what could only be described as K.K.'s most notable physical characteristic: his prominent head of dark curly hair. To conclude that it could have been some other person, with both a similar skin tone and similar hair as K.K.'s driving their family car would be purely speculative, in my estimation.

[234] Finally, while I have not relied on the evidence of the yellow and green gardening gloves and black balaclava located in the trunk of the BMW on June 18th as evidence of K.K.'s identity as the driver on May 10th, I am satisfied beyond a reasonable doubt that those were the items worn by S.W. on that date. While patterned gardening gloves might be considered a relatively common item to be found in the trunk of a car in May, their coincidence of being stored with a heavy knit balaclava changes them from being something arguably benign, to highly suspicious. I don't accept that there would have been any reason for anyone in the K. family to have these two items, together, for any legitimate purpose, such as the family renovation business. The only reasonable deduction is that these were the items seen on the video on S.W.'s hands and face.

[235] In conclusion, I am satisfied that the Crown has established K.K.'s guilt on counts 1 and 2. There being an absence of evidence of K.K.'s knowledge of the intention by A.M. and S.W. to wear masks in order disguise their faces during the commission of the robbery, I find K.K. not guilty of count 3.

[236] There was no evidence called to establish the terms of the undertaking for which K.K. was alleged to be in breach of on June 12, 2018. As a result, K.K. is found not guilty of this count.

[237] In closing, I wish to thank all counsel for their exemplary professionalism, preparedness, and effective advocacy during this lengthy trial. I greatly appreciated their courtesy and very helpful submissions.

Released: November 18, 2019

Signed: Justice A.D. Dellandrea