Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 05 31 COURT FILE No.: Hamilton 20-4057

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

OMAR THOMAS

Before: Justice J.P.P. Fiorucci

Heard on: January 26, 27, 28 and February 16, 2021 Ruling on Similar Fact Application released on: May 31, 2021

Counsel: R. Branton, counsel for the Crown J. Alsbergas, counsel for the defendant Omar Thomas

FIORUCCI J.:

Introduction

[1] The defendant, Omar Thomas, is charged with three robberies. Each of the robberies occurred at convenience stores in the City of Hamilton. The robberies occurred on March 7, April 8, and April 25, 2020. Mr. Thomas also faces disguise with intent and breach of probation charges arising out of these incidents. The issue in this case is identity. The Crown seeks to prove that Mr. Thomas was the lone male perpetrator of two of the robberies and that he was one of two perpetrators who committed the other.

[2] Mr. Thomas elected to be tried in the Ontario Court of Justice and entered not guilty pleas to all charges. The Crown brought a similar fact application, seeking two orders: (i) an order that the evidence directly relevant to each count in the Information be admitted as evidence of identity on all counts; and (ii) an order that evidence relating to four prior robberies Mr. Thomas committed in November 2011 is admissible as evidence of identity on all counts in the Information. [1]

[3] Therefore, the Crown's application relates to conduct that is both intrinsic and extrinsic to the Information. The parties agreed to argue the application at the end of the Crown's case. This is my ruling on the Crown’s similar fact application.

The Issues and Positions of the Parties

Count to Count

[4] Crown counsel submits that there is a high degree of similarity in the manner in which the three convenience store robberies were committed between March 7 and April 25, 2020 and urges me to find that, on a balance of probabilities, the same person committed the three robberies. Furthermore, the Crown argues that there is some evidence linking Mr. Thomas to each of the 2020 robberies. The evidence pertaining to each robbery should, therefore, be considered in determining whether Mr. Thomas committed the other robberies.

[5] Defence counsel contends that the Crown has not met its burden for admission of similar act evidence to prove identity across each of the counts on the Information. The Defence points to significant dissimilarities amongst the three robberies and says that any similarities between the acts are generic and lack sufficient uniqueness for the probative value of the evidence to outweigh its potential prejudice.

The 2011 Robbery Convictions

[6] The Crown says that there are a number of significant similarities between the four robberies committed by Mr. Thomas in November 2011 and the 2020 robberies. The cumulative effect of these similarities warrant the admission and consideration of evidence pertaining to the 2011 robberies in determining whether Mr. Thomas committed the 2020 offences. The Crown submits that the probative value of the evidence outweighs its potential prejudice.

[7] The Defence says that any similarities are generic and do not rise to the level required to admit evidence of Mr. Thomas’s 2011 robbery convictions as similar act evidence. In fact, Defence counsel argues that the acts that formed the basis for Mr. Thomas’s 2011 robbery convictions are fundamentally dissimilar to the charged conduct.

Judge Alone Trial

[8] Crown counsel submits that the potential prejudice of admitting the similar act evidence is significantly diminished because this is a judge alone trial. Defence counsel relies on authorities that have held that the prejudice of admitting similar acts remains a concern in a judge alone trial, even though the prejudicial effect of the evidence may be somewhat lessened. [2]

Material Facts: The Three Robberies

The First Robbery: March 7, 2020

[9] On March 7, 2020, at 5:56 p.m., a male suspect robbed the Busy Bee Mart located at 83 Walnut Street South, Hamilton, Ontario. The perpetrator approached the female store clerk and requested four quarters in exchange for one dollar while holding out his right hand. When the store clerk opened the till, the suspect reached over the counter, held the till open, and removed money from it. The clerk tried to stop him by striking him on the head with her right hand and a bat that she retrieved from under the counter. The suspect fled the store on foot. He stole approximately $120.00.

[10] The following is a description of the suspect and his clothing in this first robbery: (a) A white face mask that partially covered his face. His nose and eyes were visible, and he appeared to be a black man; (b) A black jacket with white stripes down the sleeves and a white decal on the left chest; (c) A dark hat and a hood over his head; (d) He wore what appeared to be a black glove on his right hand and possibly a clear or light-coloured glove on his left hand; and (e) White shoes and dark pants.

The Second Robbery: April 8, 2020

[11] On April 8, 2020, at 10:52 p.m., two male suspects robbed the convenience store of the Pioneer Gas Bar located at 610 King Street West, Hamilton, Ontario. One appeared to be a “light-skinned male” [3] and the other was a black male. The two suspects approached the store clerk and requested change in exchange for a five-dollar bill. [4] The clerk opened the till to make the exchange. The light-skinned male then produced a knife while the black male went behind the counter and took money from the till. They stole approximately $150.00 and left the store on foot.

[12] The following is a description of the clothing worn by the black male perpetrator in this second robbery: (a) White shoes with a dark-coloured decal going across the side of them, and white shoelaces; (b) A navy blue long-sleeved top or jacket with a hood over his head. The blue top/jacket had a white decal on the left chest; (c) Wearing what appeared to be white or clear rubber/latex gloves; (d) Face concealed by a grey face mask and he was wearing a similar coloured head covering under his hood. Only his eyes and the bridge of his nose are exposed; and (e) Dark pants.

The Third Robbery: April 25, 2020

[13] On April 25, 2020, at 11:39 p.m., a male suspect robbed Select Convenience located at 54 Queen Street South, Hamilton, Ontario. The suspect approached the store clerk and asked for an HDMI cable. The clerk left the cashier till to help the suspect. After a few moments, the suspect held the clerk’s throat, pointed a hammer at him, and pushed him towards the cash counter. The suspect stated, “give me everything that you have, or I am going to hit you”. The suspect opened the till and took money totaling approximately $500.00.

[14] The following is a description of the suspect in this third robbery and the clothing he wore: (a) Black male; (b) Reddish/brownish coloured hoodie sweatshirt with gold writing on it and light/white strings; (c) Green shirt underneath the hoodie; (d) Dark green pants; (e) Black head covering; (f) White glove on left hand and black glove on right hand; (g) Black mask/face-covering with white decals on it; and (h) Tan/greenish/grey coloured shoes with white soles.

The Accused’s Four Prior Robbery Convictions

[15] On May 4, 2012, Mr. Thomas entered guilty pleas to four robberies that he committed in November of 2011. Set out below are the facts pertaining to Mr. Thomas’s convictions.

November 20, 2011: Dev Convenience

[16] On November 20, 2011, at approximately 7:45 p.m., Mr. Thomas entered Dev Convenience store located at 510 Driftcurrent Drive in the City of Mississauga. He asked the store clerk to make change for a larger bill. When the victim opened the till, Mr. Thomas produced a large can of bear repellant. He sprayed the victim in the face. As the victim fell to the ground, Mr. Thomas reached over the counter and stole approximately $1,200.00 from the till. He then left the store and was last seen running in a northbound direction.

November 22, 2011: Rocky Market Variety Store

[17] On November 22, 2011, at 5:24 p.m., Mr. Thomas entered the Rocky Market Variety Store located at 215 Royal York Road in the City of Toronto. Mr. Thomas was wearing a hoodie with a doo-rag on his head and gloves. He attended at the counter where the cash register was located and asked the lone female employee if she could make change from a larger bill.

[18] The clerk opened the cash register. Mr. Thomas removed a large cannister of pepper spray from his pocket and sprayed the victim in the face while attempting to reach over the counter into the cash register. When the victim attempted to stop Mr. Thomas, he sprayed her again. Mr. Thomas was unable to obtain any money from the register due to the clerk’s efforts. He fled the store on foot after grabbing some change from the countertop.

November 22, 2011: October Convenience

[19] On November 22, 2011, at approximately 6:42 p.m., Mr. Thomas attended at October Convenience store located at 3274 Lakeshore Boulevard West in the City of Toronto. The front door of the store was locked. Mr. Thomas knocked on the door and the lone male employee let him in.

[20] Mr. Thomas attended at the counter where the cash register was located and asked the victim if he could make change for a loonie. Once the victim opened the cash register, Mr. Thomas used a cannister of pepper spray to spray the victim in the face. Mr. Thomas then reached over and removed money from the cash register totaling approximately $300.00. He fled the store on foot.

November 26, 2011: Dollarama

[21] On November 26, 2011, at approximately 8:45 p.m., Mr. Thomas entered the Dollarama store located at 93 Dundas Street, in the City of Mississauga. He remarked about being cold. He then walked around the counter and entered the cash area armed with a knife. Mr. Thomas told the victim to open the till while pointing the knife at the register. The victim walked past Mr. Thomas and told the other two employees that they were being robbed. Mr. Thomas walked out of the store without obtaining any property.

Legal Principles

[22] Similar act and other discreditable conduct evidence is presumptively inadmissible in a criminal trial. This bad character evidence “invites a trier of fact to conclude from specific prior incidents of misconduct that an accused is a person of a certain character or disposition”. [5] It then invites the trier of fact “to use that character or disposition to support an inference of guilt of a specific offence or offences with which that accused is charged”. [6]

[23] The exclusionary rule is premised “upon the presumed predominance of prejudicial effect over probative value”. [7] Evidence of similar acts is admissible when this presumption is rebutted, which “occurs when the probative value of the evidence overcomes its prejudicial effect, that is to say, the moral and reasoning prejudice associated with it”. [8] The Crown bears the onus of satisfying “the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”. [9]

[24] In order for similar act evidence to be admissible to prove a fact in issue, “the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established”. [10] Only if this objective improbability of coincidence is established will the evidence have sufficient probative value to be admitted. [11]

[25] Similar act evidence may be used to prove identity. In R. v. Arp, the Supreme Court of Canada provided guidance to trial judges when the Crown seeks to tender similar act evidence to prove identity:

Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question. [12]

[26] In assessing whether the same person likely committed the acts “the trial judge must have regard to the manner in which the alleged similar acts were committed”. [13] In R. v. Arp, Cory J. stated that “[g]enerally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible”. [14] Cory J. went on to say, “[t]he similarity between the acts may consist of a unique trademark or signature on a series of significant similarities”. [15]

[27] While “a unique trademark or signature will automatically render the alleged acts "strikingly similar" and therefore highly probative and admissible,” [16] a unique trademark or signature is not required. Rather, “a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence”. [17]

[28] As the authors of McWilliams’ Canadian Criminal Evidence, 5th edition observe:

The trial judge may err if he or she focuses only on the uniqueness of the acts (or lack thereof), without considering whether the cumulative evidence “reveal[s] a series of significant similarities sufficient to render the objective possibility of coincidence improbable”. [18]

[29] In R. v. Arp, the Supreme Court of Canada suggested that “[i]n assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act”. [19] Therefore, during the first stage of the inquiry, any evidence linking the accused to each alleged similar act should generally not be considered. [20]

[30] This was explained by Watt J. in R. v. Durant, 2019 ONCA 74:

In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person. This analysis is confined to a consideration of the manner in which the acts were committed and not the evidence relating to the involvement of the accused in those acts. The result of this analysis establishes the likelihood of a common actor: Arp, at paras. 45, 50; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. See also, Woodcock, at paras. 79-81. [21]

[31] While splitting the first inquiry (manner in which the similar acts were committed) from the second (linkage or nexus between the similar acts and the accused) “is a helpful approach for many identity cases,” [22] there may be cases which “require considering evidence linking the accused to the acts together with an analysis of the acts’ similarities”. [23] However, caution is required if the trial judge does consider evidence linking the accused to the similar acts during the first inquiry. The first inquiry is focused on the improbability of coincidence and the trial judge must ensure that it is not distorted by evidence linking the accused to the acts. [24]

[32] If the trial judge is satisfied that the same person likely committed the similar acts, he or she moves on to consider whether there is some evidence linking the accused to the acts. [25] A link between the accused and the alleged similar acts is a precondition to admissibility. [26] The threshold is not particularly high. [27] It is not necessary for the trial judge to conclude that the similar acts were likely committed by the accused because the “[t]he answer to this question may well determine guilt or innocence”. [28] However, “[e]vidence of mere opportunity showing no more than the possibility that the similar act is that of the accused will not suffice to show the accused's participation in the alleged similar act”. [29]

[33] The authors of McWilliams’ Canadian Criminal Evidence, 5th edition note:

Where, however, the accused has been convicted of an offence relating to the similar acts, this is sufficient to meet the “some evidence” standard to link the accused to those acts, regardless of whether the conviction arises from a guilty plea or a trial by judge alone, or judge and jury. [30]

[34] The test for the admissibility of similar act evidence adduced to prove identity “is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi-count indictment against the accused”. [31]

Analysis

[35] The similarity between the acts must be determined on a case by case basis after considering all relevant factors. The factors include, but are not limited to, proximity as to time and place, number of occurrences of similar acts, similarities in detail and circumstances, any distinctive features unifying the incidents, intervening events, and any other factor which would tend to support or rebut the underlying unity of the similar acts. [32]

Count to Count

[36] The Crown has not met its onus of establishing on a balance of probabilities that the same person committed each of the three robberies, or that the same person committed any two of the three robberies. There are similarities amongst the three robberies, but they do not amount to a unique trademark or signature, nor do they cumulatively reveal a series of significant similarities that is sufficient to render the objective possibility of coincidence improbable.

[37] I agree with the Crown that the following similarities exist: (a) each of the three robberies was committed by a black male with the same general build; (b) the three robberies were committed at convenience stores with one clerk working; (c) the three robberies occurred in the same area of the city-the first and second robberies happened 2.4 km apart with the third robbery occurring at a location within that 2.4 km span; (d) the three robberies were committed within a relatively proximate time period of about seven weeks; (e) the first two robberies involved a perpetrator asking the clerk to make change in order to get the till open; (f) the robber in each wore a hoodie, a face mask and gloves; (g) the robber(s) in each arrived and left on foot; (h) the robberies happened in the evening hours.

[38] There are important dissimilarities amongst the three robberies which have led me to conclude that the high degree of similarity required to adduce such evidence to prove identity is lacking.

[39] Although the robber in the first and third robberies and the black male robber in the second robbery wore hoodies and face masks, each of the hoodies is a different colour and each of the facemasks were dissimilar in appearance. Crown and Defence counsel debated the significance, or lack thereof, of the fact that each of the perpetrators wore a face mask since the robberies all occurred very close to or within the time period when public health officials recommended that masks be worn owing to the COVID-19 pandemic. In my view, the wearing of a face mask by each robber, which in each case was different in appearance, is a very general similarity that provides minimal assistance to the Crown’s argument.

[40] The first robbery was committed by a lone black male who did not have a weapon and did not make any threats of violence. Once the till was open, the robber leaped on top of the counter and tried to hold the till open and take money as the clerk struck him on the head with her right hand and a bat. Even after being struck by the bat, the robber did not retaliate with violence but instead ran from the store as he was being chased by the clerk who still had the bat in her hands.

[41] The first and third robberies were committed by a lone male suspect, whereas the second robbery involved two perpetrators entering the store. Although the black male in the second robbery asked for and received change as a means of having the clerk open the till, this robbery was executed in a very different fashion than the first and third robberies. The black suspect did not leap over the counter to hold the till open. Instead, he walked calmly around the counter and took his time to remove cash from the till as the light-skinned suspect held a knife.

[42] Therefore, the second robbery involved a weapon and the threat that it would be used if the clerk resisted. The two suspects calmly walked out of the store after taking money from the till. Again, the clothing worn by the black male in this second robbery was different in appearance to the clothing worn by the robbers in the first and third robberies. The Crown suggests that the white shoes worn by the black male suspect in the second robbery are similar to the white shoes worn by the first robber. However, the surveillance video of the first robbery shows no distinctive features of the white shoes. Again, this general similarity does little to advance the Crown’s argument.

[43] The details and circumstances of the third robbery were completely different from both the first and second robberies. The lone male suspect entered the store holding his left hand to his ear as if he was speaking on a cell phone. He did not ask the clerk to make change but instead asked for an HDMI cable. The suspect then used violence and the threat of further violence to carry out the robbery. He took out a hammer, held the clerk’s throat, pointed the hammer at the clerk, and pushed him towards the cash counter. The suspect also made a verbal threat to hit the clerk if the clerk did not give him everything he had in the till.

[44] In my view, many of the similarities that exist amongst the three robberies are at a “level of generality lacking in real probative value”. [33] That, coupled with the significant dissimilarities set out above, result in the Crown failing to persuade me on a balance of probabilities that each of the three robberies, or any two of them, were committed by the same person.

[45] At this stage, I have not undertaken an assessment of whether there is some evidence linking the accused, Mr. Thomas, to each of the three robberies. The Crown’s application with respect to count to count similar acts fails at the first inquiry, the manner in which the similar acts were committed. I find that this is not the type of case that requires consideration of evidence linking the accused to the acts together with an analysis of the acts’ similarities during the first inquiry. The first inquiry is focused on the improbability of coincidence and the Crown has not succeeded in establishing that improbability of coincidence.

The 2011 Robbery Convictions

[46] The Crown contends that the details and circumstances of the four robberies Mr. Thomas committed in 2011 bear striking similarities to the manner in which the 2020 robberies were committed. Once again, I find that notwithstanding certain generic similarities as between the 2011 and 2020 robberies, the Crown has failed to meet its onus to admit these prior discreditable acts to prove the identity of the perpetrator of any of the 2020 robberies.

[47] First, I note that there are unique similarities amongst three of the four robberies Mr. Thomas committed in 2011. The November 20th robbery and the two robberies he committed on November 22nd all occurred at convenience stores in the evening hours and during each of them Mr. Thomas asked the clerk to make change in order to get the clerk to open the till. Significantly, in each of these three robberies, Mr. Thomas sprayed the victim with either bear repellant (November 20th) or pepper spray (both November 22nd robberies). For the November 26th Dollarama robbery, Mr. Thomas armed himself with a knife and pointed it at the till to try to get the clerk to open it.

[48] There are similarities between the first three 2011 robberies and the March 7 and April 8, 2020 robberies. These robberies were committed at convenience stores in the evening hours and the clerk was asked to make change. The November 26, 2011 robbery was committed in a similar fashion to the April 8, 2020 robbery as both involved a knife.

[49] Aside from these generic similarities, the details and circumstances of the 2011 and 2020 robberies are quite different. I start by observing that there is a nearly nine-year gap between the robberies Mr. Thomas committed in 2011 and the charged conduct. The charged conduct occurred in the City of Hamilton whereas the 2011 occurrences were in the Toronto area. None of the charged conduct involves the use of bear or pepper spray to incapacitate the store clerk. The use of bear/pepper spray is a distinctive feature of the November 20th and 22nd robberies which is absent in the 2020 robberies. This is a significant dissimilarity which tends to rebut the underlying unity of the similar acts.

[50] The Crown has failed to establish on a balance of probabilities that the November 2011 robberies and any or all of the 2020 robberies were committed by the same person such that it warrants admission of evidence of Mr. Thomas’s prior convictions to prove identity. The substantially reduced or lessened risk of prejudice in judge alone trials cannot be used as a gateway to the admission of prior discreditable conduct that is of marginal probative value and fundamentally dissimilar to the offences with which the accused is charged.

Conclusion

[51] The Crown’s application for the admission of similar act evidence across counts and the admission of evidence of Mr. Thomas’s prior robbery convictions as similar acts is dismissed.

Released: May 31, 2021 Signed: Justice J.P.P. Fiorucci

Footnotes

[1] Mr. Thomas entered guilty pleas to the November 2011 robberies on May 4, 2012. The Crown filed a transcript of the guilty plea proceedings as part of this similar fact application.

[2] R. v. T.W., 2014 ONSC 4531, at paras. 14-15; R. v. Villeda, 2011 ABCA 85, at para. 18; R. v. Y.C.B., 2014 ONSC 1037, at para. 108.

[3] Det. Cst. Przednowek opined that, based on the surveillance video, this suspect was either white or Middle Eastern.

[4] The Agreed Statement of Facts states: “The two suspects approached the store clerk…and requested change in exchange for a five-dollar bill”. However, the surveillance video shows the black male extending his right hand to give the clerk some coins and the clerk handing the black male a five-dollar bill.

[5] R. v. Durant, 2019 ONCA 74, [2019] O.J. No. 556 (Ont. C.A.), at para. 80.

[6] Ibid, at para. 80.

[7] Ibid, at para. 83.

[8] Ibid, at para. 83.

[9] R. v. Handy, 2002 SCC 56, at para. 55.

[10] R. v. Arp, [1998] S.C.J. No. 82, at para. 48.

[11] Ibid, at para. 48.

[12] Ibid, at para. 48.

[13] Ibid, at para. 49.

[14] Ibid, at para. 50.

[15] Ibid, at para. 50.

[16] Ibid, at para. 45.