Court File and Parties
Court File No.: Hamilton 19-2249 Date: 2020-01-09 Ontario Court of Justice
Between: Her Majesty the Queen — and — Trevor McLeod
Before: Justice P.H.M. Agro
Heard on: October 24th, 25th, 28th, 31st, and December 19th, 2019
Reasons for Judgment released on: January 9th, 2020
Counsel:
- Ms. M. Fahim — counsel for the Crown
- Ms. G. Eliany — counsel for the accused Trevor McLeod
Reasons for Judgment
Introduction
[1] Trevor McLeod is charged with five counts of robbery and five counts of disguise with intent in relation to each of those robberies.
[2] The incidents took place at five different convenience stores in this city on the 2nd, 10th, 16th, 17th and 19th of February, 2019.
[3] Three of the convenience stores are located in the Cannon Street corridor between Wentworth Street North on the west and Kenilworth Avenue North on the east. The remaining two are within those east and west boundaries, one a short walking distance to the north, the other, a short walking distance to the south.
[4] Each of the incidents took place between the hours of 10:44pm and 1:44am.
[5] For the purpose of establishing the essential elements of the offences of robbery and disguise with intent, the Crown called the store clerks who were on duty in four of the stores and the owner of the fifth.
[6] Video tape surveillance footage from each store was tendered as well as still shots taken from some of those videos. A brief statement of agreed facts, exhibit 1, fleshed out other uncontentious aspects of the Crown's case.
[7] At the opening of trial I was invited to grant the Leaney applications brought by both the Crown and the defence, as the identity of the accused as perpetrator of these offences is the sole issue before me. Those orders were made on consent.
[8] At the conclusion of the Crown's evidence, the defence consented to the Crown's similar fact application, seeking to have the evidence at trial apply across counts.
Evidence for the Crown
[9] On the evidence of the complainants and the video surveillance tapes from each location, I am satisfied beyond a reasonable doubt that the Crown has proven the essential elements of robbery and disguise with intent on each of the charging counts.
[10] During each incident, the perpetrator wore the same two-toned winter parka that extended below the hips, running shoes, a dark grey toque with the lettering PUMA pulled low on the forehead over the eyebrows, with the parka hood pulled over it, a scarf at the neck that was pulled up toward the nose, black winter gloves, two toned grey running shoes and on some occasions, light grey sweat pants.
[11] In each instance, the perpetrator enters the store and approaches the counter, brandishes a knife or threatens use of a weapon, demands money from the cash register and flees on foot with the cash or the cash tray. No other goods were stolen.
[12] When used, the knife was pulled from the right side of the perpetrator's clothing using the right hand.
[13] On the issue of identity, all complainants identified the perpetrator as a male but none were able to assist with facial recognition. One store clerk said the perpetrator had dark eyes and was muscular.
[14] Each of the complainants gave their estimate of the robber's height: varying from 5'8" to just over 6'.
[15] Having viewed the video surveillance and still shots taken therefrom, the need for recognition evidence was obvious.
Cheryl McLeod
[16] Cheryl McLeod was the first of the Crown's witnesses for that purpose. She is the accused's mother and he her only son.
[17] Trevor McLeod lived with his parents, Cheryl and Wayne McLeod, until his early twenties when he moved to Edmonton.
[18] He returned to Hamilton in 2015 and again lived with parents until 2017.
[19] By then Trevor had become severely addicted to drugs, heroin in particular, and became estranged from his parents and was homeless.
[20] In 2017 Trevor blocked his mother from viewing his Facebook account, so that manner of keeping up with him was foreclosed.
[21] Between August 2017 and the time of Trevor's arrest in late February 2019, there were only three direct contacts between mother and son.
[22] The first was in October 2018 when Cheryl was searching for him on the streets. She did locate him and he got into her car. That was a brief encounter.
[23] On February 15th, 2019, Cheryl went to St. Joseph's Hospital to see her son as she had heard he had suffered an overdose and was being treated there. Again, that was a short visit.
[24] The next contact was on the 19th of February 2019, the day of the last of the robberies, when Cheryl picked Trevor up at his request from St. Joseph's Hospital and drove him to his doctors at the Parkdale Medical Centre. After waiting for him to pick up a prescription, she dropped him off in the area of King Street and Sherman Avenue.
[25] The pick up at the hospital was not because Trevor had been a patient that day but because it was his habit to sleep in the hospital parking garage or its washrooms.
[26] Cheryl identified Trevor in the photographs, exhibit 7, taken from a video surveillance camera at 8:51 am as he exited the hospital on the 19th of February. He was wearing a black waist length parka, black pants, with a light grey hoodie underneath, a light grey toque and white running shoes with a black stripe on the sides. He was carrying a number of bags including a red duffle bag, a black back pack and a beige carry all.
[27] Cheryl identified the clothing and bags as those Trevor was wearing and carrying when he sat in her car when she took him to the Parkdale Medical Centre.
[28] During that encounter mother and son had a discussion about money and his lifestyle. Cheryl testified that Trevor told her he carries a knife for protection and that he sometimes robs people to get his drug money.
[29] On February 22nd Cheryl heard radio news reports of Hamilton Police seeking public assistance in identifying a suspect in a series of convenience store robberies.
[30] The following day she checked the Hamilton Police website and print media photos of the suspect. She testified that she immediately recognized Trevor and called police. She said her motivation for doing so was concern for community safety and that of her son.
[31] At trial Cheryl offered three areas of recognition:
Physical Descriptors
[32] Cheryl described her son as being between 6'1" and 6'3". Blue-eyed, with a distinctive thin nose and thin lips. She described his nose as having a "dimple" in the middle at his nostrils and that his nose and mouth were thin, as are hers.
[33] She testified that when Trevor was hospitalized for the overdose on the 15th of February, he was thin and gaunt, with his cheeks sunken in. He had a beard at the time but she did not elaborate about the style or length of that beard.
[34] When she picked Trevor up from St. Joseph's on the 19th of February she described him as extremely thin and scruffy with some facial hair as if he hadn't shaved.
[35] Cheryl was unable to remember what clothing Trevor was wearing other than a pair of gloves that were cut off at the knuckles.
[36] During her police interview of the 23 of February Cheryl was presented with Hamilton Police Services B.E.A.R. Unit photographs of the perpetrator, exhibit 3.
[37] On the first page of that 5 page series of photographs, she identified the creases in the suspects nose. In her oral testimony she said when shown the second photo in that exhibit that she had signed, "it's my son", indicating the prominent nose and the suspect's mouth as identifiers.
[38] Again on the third page of that exhibit, she signed the back of the photo, indicating recognition of the suspect's nose as Trevor's, but could not particularize at trial what it was about the suspect's nose that was recognizable as her son's.
[39] On the fourth page photo she wrote "jacket, nose, gloves I recognize to be his".
[40] There was no facial recognition of the perpetrator in the photo at page 5 of the exhibit.
[41] Her facial recognition of the sixth photo was of Trevor's nose and mouth.
[42] Multiple other videos and slides were shown to this witness which were included in exhibit 5, a series from each of the robberies.
[43] The best quality still photos from those videos were slides 11, 13 and 15 from the robbery of the 10th of February, and slide 24 from the robbery of the 16th of February.
[44] In the first three of those slides the suspect has a shaggy thick beard but his nose, cheeks and mouth are depicted. Again Cheryl identified the suspect's nose as being Trevor's as well as the thin lower lip.
[45] Slide 24 was a view of the suspect taken from above. Only the left side of the nose, mouth and chin are visible. Cheryl testified that the whole area of the nose and mouth were that of Trevor. In this photograph the suspect is bearded but the beard appears to be shorter than in slides 11, 13 and 15.
[46] Cheryl also identified Trevor in slide 40 of exhibit five, being a photograph of Trevor coming out of the Parkdale Medical Centre on the 19th of February, taken hours before the last robbery at the Big Bee Variety Store, counts 1 & 2.
Voice Descriptors
[47] The video of the robbery on the 10th of February, exhibit 5 slide 10 included an audio track in which the suspect was heard to say: "cash now, paper money now".
[48] Cheryl's recognition of Trevor's voice did not offer any distinguishing characteristics or descriptors of his voice. She testified that she just recognized that voice as Trevor's, especially in speaking the word "paper".
Clothing Recognition
[49] The perpetrator wore the same two toned winter parka in each of the robberies. Due to colour variations in each of the videos and slides, that parka at times appeared to be grey and black or olive green and black.
[50] The perpetrator wore the same two toned winter parka in each of the robberies.
[51] Cheryl also identified the PUMA toque as being one that she had known Trevor to own and wear as well as the black gloves worn by the suspect.
Alison Kovacs
[52] Alison Kovacs is Trevor's cousin.
[53] She last saw Trevor in 2018.
[54] The first occasion was in the summer of that year when Cheryl had been searching the streets for Trevor and summoned Alison to her vehicle to try to "talk some sense into Trevor".
[55] The second time was in October 2018 when he was in St. Joseph's Hospital for treatment for pneumonia.
[56] Kovacs didn't offer any description of Trevor as he appeared on those two occasions, other than to say that while in hospital he appeared skinny and a little ill and but better than he appeared in the summer.
[57] Kovacs also saw the media broadcasts from Hamilton Police seeking help to identify the perpetrator of the robberies. She testified that she knew who the suspect was, as she couldn't mistake Trevor's face, his jaw line, his "beak".
[58] Cheryl then contacted her and the two went to Hamilton Police on the 23rd of February, where Kovacs also reviewed the B.E.A.R. Unit photographs in exhibits 3 & 9.
[59] Kovacs' testimony was limited to two areas of description:
Physical Descriptors
[60] Kovacs recognition of her cousin was focused on his nose. She did not provide any descriptors that would distinguish his nose but kept referring to it in her testimony as "that nose".
[61] She confirmed her identification of Trevor in Exhibit 9 by his facial features and the nose specifically. The only slide she was able to identify in exhibit 3 was photo 6 writing on the back of that photo, "recognize the nose and mouth, facial features."
[62] When presented with exhibit 5, particularly slide 15 from the 10th of February robbery and slide 24 from the robbery of the 16th of February, she again emphasized recognition of the suspect's the nose as Trevor's.
Voice Descriptors
[63] The video with audio of the robbery of the 10th of February was played for Kovacs.
[64] She testified that the voice was "100%" Trevor's saying that the tone used was how Trevor speaks when he's being assertive.
[65] Kovacs did not describe any other distinguishing features of Trevor's person or voice and offered no recognition of the clothing worn by the suspect.
PC Zachary George
[66] Constable George arrested McLeod at the Salvation Army Men's Shelter on the 23rd of February 2019.
[67] At the time McLeod was wearing grey Adidas sweat pants under black snow pants, a grey sweat shirt and a grey zipped hoodie jacket. These items were seized and marked as exhibits at trial. The sweat pants and hoodie are light to medium grey in colour.
[68] McLeod wore a black winter jacket over his clothing at the time of arrest but that was not seized. The jacket was last seen at the Hamilton Wentworth Detention Centre but has since been lost.
[69] No hats, shoes or weapons were seized.
Evidence for the Defence
Wayne McLeod
[70] Wayne is Trevor's father and spouse of Cheryl. He acknowledged that he had less contact with Trevor over the last few years than his wife did and had no telephone contact at all.
[71] He was in agreement with his wife that his son's nose and lips were thin but put his height at 6'3". He confirmed that Trevor is right handed and blue eyed.
[72] He testified that the last time he saw his son was in October of 2008 when he was hospitalized for pneumonia where he visited with his wife for about an hour.
[73] He was aware of the February 2019 overdose but testified that by the time he and Cheryl learned of it, Trevor had left the hospital.
Physical Descriptors
[74] Wayne's physical descriptors were few. He did acknowledge that Trevor has a slender nose and thin lips. He testified that it's possible that Trevor had a beard but he'd never seen him with one.
[75] Various slides from exhibit 5 were put to Wayne. He was unable to discern any features that he could attribute to Trevor.
[76] When presented with exhibit 6, photos of the Parkdale Medical Centre, he opined that photo 5 looked a little like Trevor and conceded that the person depicted in exhibit 8, in the hospital parking lot, might also be Trevor.
Voice Descriptors
[77] The video with audio relating to the February 10th robbery was played for Wayne but he said he had no impression of the voice and didn't believe it was Trevor's.
Clothing Recognition
[78] Wayne did not recognize any of the clothing worn by the perpetrator as clothing ever worn by Trevor. He did say that Trevor was a skate board fan in relation the "DC" toque worn by the male in exhibit 6 photo 5.
Victoria Young
[79] Young has known McLeod since she was a teenager and more recently reconnected with him through her work as an outreach worker for the local AIDS network.
[80] For approximately six weeks before McLeod's arrest she had a sexual relationship with him and saw him frequently over that period.
[81] In the months prior to these robberies she had assisted him with attending medical and other appointments, helped him with applications to rehabilitation centres and assisted him with finding available shelters, including the Salvation Army where she was a residential worker.
[82] Young testified that all users of the Salvation Army shelter are searched for weapons on admission. To Young's knowledge, no weapons were ever confiscated from McLeod on any of his admissions.
[83] Young had some familiarity with McLeod's clothing because she assisted with clothing inventory on admission to the Salvation Army shelter and in February she did some laundry for him.
[84] She was familiar with McLeod wearing a short black peacoat, owning a black toque and three pair running shoes in black, red, and white with black laces that were dirty. She didn't know him to wear gloves and she found his hands were always rough and dry from cold weather.
[85] Young testified that she saw McLeod and spent time with him in February 2019 approximately 12 to 15 times. It was she that took him to hospital when he overdosed on February 14th and contacted his mother, leaving a message.
[86] As Young recalled on that occasion he was wearing the black peacoat, and a black toque. He had a short beard and was very, very thin.
[87] Exhibit 5, the series of videos and still photographs from each of the robberies were put to Young. Three categories of recognition were put to her.
Physical Descriptors
[88] Young testified that the suspect's beard, as shown in exhibit 5 slide 5, was straggly and longer than the beard McLeod had in February commenting McLeod's beard never covered his upper lip as depicted in exhibit 5, slide 11.
[89] With respect to slides 15 and 35 of exhibit 5, Young testified that McLeod was taller than the suspect and thinner. She also opined that McLeod did not have the same way of walking as the suspect and his mannerisms were different. She testified that McLeod bent his knees as he walked forward as depicted in exhibit 6, photos 5 & 6, taken at the Parkdale Medical Centre.
[90] Young testified that McLeod had a distinctive "pointy" nose but opined that the suspect's nose was fuller than McLeod's.
Voice Descriptors
[91] Young not only had personal contact with McLeod, she had spoken with him over the phone multiple times. When the video with audio, exhibit 5, slide 10 was played, she was unable to identify the voice as McLeod's and said she had never heard him speak with that tone of aggressiveness.
Clothing Descriptors
[92] Young did not recognize the two tone parka worn by the perpetrator as a jacket ever worn by McLeod. She knew of the black jacket depicted in exhibits 6 and 7 and the fluorescent green construction jacket depicted in exhibit 8. She knew him to have a two toned grey jacket with a full grey body and black cuff below the elbow, but not with the area of black over the shoulder and upper chest as worn by the suspect.
[93] The shoes worn by the perpetrator depicted in exhibit 5 were not recognizable as any of the shoes ever worn by McLeod, who usually wore the white running shoes shown in exhibits 6, 7 & 8.
[94] As for gloves, she did not know McLeod to wear them and did not recognize the gloves worn by the suspect.
[95] Young confirmed that it was McLeod shown in exhibit 6, recognizing various items of clothing, including the black jacket, white shoes, the construction workers vest under the jacket and the toque hat with "DB" lettering.
[96] She thought the male depicted in the series of slides in exhibit 8, the hospital parking garage photos looked like McLeod, recognizing the clothing items, the nose and crouched stance as McLeod's.
Analysis of Evidence
Surveillance and Other Police Evidence
[97] The overall quality of the video surveillance and still photographs was inconsistent.
[98] In most cases, the images of the perpetrator's face were distorted, grainy or blurred.
[99] While the quality of the surveillance video and still photographs is not an issue that affects the admissibility of the recognition evidence, it does touch upon its weight when the recognition is based on materials of poor quality: R v Field.
[100] Colours varied from one set of videos and photographs to another. This was most notable in the colour of the parka worn by the perpetrator. In some videos and photographs the parka appears to be olive and black, in other cases it appeared to be light or medium grey and black. I find this to be a significant factor in the recognition of the perpetrator's clothing by the witnesses Cheryl McLeod and Victoria Young.
[101] The fact that McLeod was wearing grey sweat pants and hoodie at the time of his arrest does little to advance the Crown's case. Light grey sweat pants and hoodies are commonly available and are ubiquitous items of leisure wear among young males.
[102] In exhibit 5, still shots 22 & 23, relating to the robbery of the 16th of February, the hood of the suspect's parka is down, but his head is covered by a hoodie worn under the parka that appears to be dark grey in colour.
[103] Likewise, the only robbery during which the perpetrator appeared to be wearing light grey sweat pants is that of February 17th. On all other occasions the perpetrator's pants were dark grey or black.
[104] Curiously, police did not seize McLeod's jacket or footwear when he was arrested, nor was there a warrant obtained to search for the other items worn by the suspect that may have been in McLeod's personal property at the Salvation Army Shelter.
[105] Neither did police seek to obtain shelter records regarding any weapons confiscated from McLeod while he stayed there.
[106] The evidence from surveillance sources on the morning of 19th of February, exhibits 6 and 8, depicts McLeod's clothing on the last day of the robberies. Other than black pants, there is no similarity between McLeod's clothing, headgear or footwear and that worn by the perpetrator in the robbery of the 19th of February or any of the other robberies earlier that month.
[107] While it is not unreasonable for a person, even when homeless, to change clothing, I find it unlikely given the limitations of homelessness and access to multiple wardrobe changes that none of the distinctive items of apparel depicted in exhibits 6 & 8, and known to be worn by McLeod, were ever worn by the perpetrator in any of the robberies.
[108] The clearest photographs of the person known to be the accused and identified by all witnesses as McLeod, are in exhibit 6, still shot 5, taken the morning of February 19th at the Parkdale Medical Centre and the arrest photo taken on 22 February. The first still shot depicts McLeod as gaunt but clean shaven. On arrest, three days after the Parkdale still shot, he is likewise gaunt but with a sparse growth of facial hair.
[109] In the agreed statement of fact at paragraph 3, it is stated that PC Steeds was dispatched with a tracking dog on February 2nd to follow a scent track south of the Big Bee Convenience store that had just been robbed. He followed the track to 267 Rosslyn Avenue North. He conducted a door knock at the residence but a heavier set male walked into the living room, turned off the lights and did not answer the door.
The Witnesses for the Crown
[110] As set out earlier in these reasons, none of the store clerks were able to identify the perpetrator beyond general statements of approximate height, and in the case of one witness, muscular with dark eyes. I find these descriptions to be useful only to the extent that they are descriptive of the perpetrator and confirm, but for the eye colour, my own assessment of the videos and still photographs.
[111] What remains is the testimony of the four Leaney witnesses.
[112] Certainly, family members, particularly parents, are best suited to offer recognition evidence.
[113] I accept the evidence of McLeod's parents that Trevor's eyes are blue and that he is 6'1" to 6'3" in height, more likely 6'3" as this evidence conforms with my own observation of McLeod over six days of trial appearances.
[114] Both Cheryl and Kovacs focused on the suspect's nose and, to a lesser extent, his jawline as defining physical descriptors. Cheryl gave a fuller description of those parts of her son's nose that she considered distinctive and those descriptors conform with McLeod's appearance in the prisoner's dock as well as in exhibits 8 and the still shot 5, exhibit 6.
[115] Wayne testified that his son had a thin nose, but without further enlarging on any distinctive features.
[116] Cheryl McLeod's motivation in going to police was the subject of cross-examination. I accept her explanation that she went to police because of concern for public safety and that of her son, though I find that concern for Trevor was the strongest motivator.
[117] I find that, though Cheryl was sincere, her testimony was somewhat overreaching to achieve that end as there were numerous internal and external inconsistencies in her testimony.
[118] For example, after testifying that she didn't recall what Trevor was wearing on the 19th of February when she picked him up from St. Joseph's Hospital, she then said she recognized the Puma hat worn by the perpetrator as the same hat worn by Trevor when she picked him up that day. Not only is that internally inconsistent, it is in direct contradiction to her testimony identifying Trevor in exhibit 6, still shots from the Parkdale Medical Centre surveillance video on the 19th of February.
[119] Similarly she identified the two tone coat worn by the perpetrator as being "similar" to one of Trevor's but then testified in relation to exhibit 3, still shot 5, that Trevor wore that jacket on the 19th of February, again in contradiction to the still shots of Trevor taken that day.
[120] I do not find Cheryl's identification of the clothing worn by the perpetrator as belonging to her son to be at all persuasive. She had only seen him once wearing outer clothing in 2019 and had no other familiarity about his wardrobe since he moved out in 2017.
[121] Cheryl's description of Trevor as "scruffy" and looking as if he hadn't shaved on February 19th is inconsistent with his appearance in exhibit 6 still shot 5 where one side of his face is clearly visible and he is clean shaven.
[122] Cheryl's testimony was also unreliable as it related to dates. There is discrepancy in the evidence of her being at hospital for Trevor's overdose in February. Wayne said that Trevor had been discharged before they could get there. His testimony is consistent with that of Young as it was she who took Trevor to hospital on the 14th of February and testified that he was discharged the same date.
[123] Cheryl seemed confused about this hospital admission and the admission in October 2018 for pneumonia. There was also some discrepancy between Cheryl and Kovacs about the time of year that Cheryl was cruising the streets looking for Trevor. Kovacs testified it was in the summer, Cheryl recollected it was in October.
[124] Only Wayne and Young commented on the perpetrator's body movements and mannerisms compared to those of Trevor. Both testified that the body movements of the perpetrator were not his and Young offered detail about the manner in which Trevor walks which is consistent with exhibit 6 still shots 5 & 6 and not those of the suspect.
[125] I give considerable weight to Young's testimony. She knew McLeod for several years and was in an intimate relationship with him through January and February of 2019.
[126] Young testified that McLeod is taller than the perpetrator that appears in the surveillance evidence and his mannerisms are different than McLeod's. She also distinguished McLeod's stature in February to be much thinner than that of the suspect, and McLeod's beard, when he had one, to be shorter, more sparse and never covering his upper lip as was depicted in exhibit 5, still shots 11 & 12.
[127] Young concurred with Cheryl and Kovacs about McLeod's distinctive nose but testified that McLeod's was pointier than that of the suspect.
[128] Not only was Young intimately and recently familiar with McLeod's physical stature and features she was, as she testified, quite familiar with his clothing, having done a large load of laundry for him as recently as February 2019.
[129] She was unable to identify any of the clothing items worn by the perpetrator as ever worn by McLeod or in his possession. Nor had she ever seen him wearing a PUMA toque or the running shoes depicted in any of the surveillance videos.
[130] I find that Young was in a better position to identify McLeod's clothing and footwear than other witnesses.
[131] Only Kovacs and Cheryl offered recognition of the perpetrator's voice as that of Trevor. Young did not recognize the voice as Trevor's and testified that he does not speak in such an aggressive tone.
[132] In R v Pinch, Hill, J. reviewed in some detail the relevant law on the issue of voice recognition and identification. At para 25 of Pinch the court set out 17 factors to be considered regarding the reliability of voice recognition and voice identification, including the scientifically accepted phenomenon "that different utterances of a given word by a given speaker are not acoustically invariant", that the speaker may have been disguising his voice, and the susceptibility of memory error and degradation.
[133] Unquestionably voice identification is fraught with frailties even in circumstances where the listener is familiar and listening to a clear recording: supra at para 73, citing R v Flynn.
[134] In this case there were only 5 words spoken by the perpetrator that formed the basis of the voice recognition.
[135] While I do not doubt the sincerity of the two Crown witnesses on this issue I find Young's testimony to be more reliable on this point. Unlike Cheryl, who on her testimony had only seen Trevor twice in 2019, and Kovacs, who hadn't spoken with her cousin since October 2018, Young has spoken with McLeod both personally and on the telephone quite regularly during the months preceding these robberies.
[136] The Crown argued that McLeod's statement to his mother while in her car on the 19th of February was a "confession". While it may open to me to draw that inference, I decline to do so in the circumstances of this case where the identification of the accused by recognition evidence is pivotal. In this case there is a competing inference that may be drawn that is more in line with the context in which the statement was made: that is a discussion between a mother and her estranged son who is describing to her the perils of his life on the streets as a homeless drug addict.
Conclusion
[137] As the trier of fact, I may draw my own conclusions regarding identity by comparing the evidence tendered with that of the appearance of the accused in court.
[138] I find McLeod to be between 6' and 6'3" in height as described by his parents. His hair colour is medium brown. He has worn a short but sparse beard throughout the trial. For that period of time, his beard has never extended below his upper lip.
[139] I find McLeod's nose to be distinctive. It is long and slender with visible indentations above each nostril where it meets the tip of the nose. His cheekbones are high and his jaw line square. His lips are thin with a distinct bow on the upper lip.
[140] In all, McLeod appears today as he did in the police photo exhibit 12, save perhaps for some added weight due to his being in detention since arrest.
[141] On the evidence of the witnesses Cheryl McLeod and Victoria Young, I find that at the time of the robberies McLeod was quite thin and his cheekbones more prominent.
[142] I find further that as of the 19th of February, the date of the last robbery, McLeod had no beard.
[143] The surveillance evidence on its own is of little assistance to the court in identifying McLeod as permitted by the Supreme Court of Canada decision of R v Nikolovski beyond my finding the perpetrator appears to be under 6' in height and heavier set than McLeod was known to be on the 19th of February 2019.
[144] The quality of the video evidence is too grainy for a Nikolovski assessment of the perpetrator's facial features. In most cases the only visible portion of the perpetrator's face was between the top of his eyes to his upper lip. In those photos where there is more facial exposure, the face is covered by a beard which shades out at the jawline in most photos or is covered by the collar of the parka worn by the perpetrator.
[145] From my own observation of that evidence I do find that the perpetrator's nose appears to be thin but I'm unable to discern the characteristics of McLeod's nose that are obvious from his police photo and seemingly seen by Cheryl and Kovacs despite the poor quality of that evidence.
[146] On my analysis, the Crown identification evidence is informed by nose recognition from poor quality surveillance and voice recognition based on five spoken words.
[147] Despite the qualification of Cheryl and Kovacs as recognition witnesses, I find it would be dangerous to convict on that evidence for the reasons I have set out and in the face of all of the other evidence before me.
[148] The testimony of Wayne McLeod and Victoria Young is more detailed about McLeod's physical characteristics and mannerisms and in the case of Young, is more reliable regarding McLeod's clothing and voice. Some of that testimony is supported by the store clerks, and the exhibits 6, 7, 8 & 12.
[149] Add to that the observations of PC Steeds with his tracking dog, made after the first robbery, I am not satisfied on all of the evidence that the Crown has met the requisite standard of proof of McLeod as perpetrator beyond a reasonable doubt.
[150] For these reasons, and the agreement of counsel that the evidence would apply across all counts, a verdict of not guilty will be entered on each of the ten counts before the court.
Released: January 9th, 2020
Signed: Justice P.H.M. Agro