DATE : June 22, 2021 ONTARIO COURT OF JUSTICE Old City Hall - Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY BLUECLOUD

For the Crown: S. Husband For the Defendant: C. De Giorgio and M. Yassa Heard: November 26, 2020 March 1–5, 8–10 and May 18, 2021

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Bluecloud elected to be tried by me on numerous offences arising out of seven bank robberies, as well as one count of breach of recognizance and one count of breach of probation. Mr. Bluecloud has pleaded not guilty to all counts on the information.

[2] Mr. Bluecloud concedes that if he is found guilty of any of the robberies, he should also be found guilty of the breaches.

[3] The seven robberies occurred on the following dates and at the locations listed, in the City of Toronto:

Incident 1: November 14, 2019, at the CIBC located at 790 Bay Incident 2: November 18, 2019, at the Bank of Montreal located at 120 Bloor East Incident 3: November 18, 2019, at the Scotiabank located at 555 Yonge Incident 4: April 6, 2020, at the Scotiabank located at 19 Bloor West Incident 5: April 9, 2020, at the Scotiabank located at 649 Danforth Incident 6: April 14, 2020, at the Scotiabank located at 2198 Lakeshore Incident 7: April 17, 2020 at the TD Bank located at 580 Sheppard

[4] The sole issue with respect to each robbery is whether the Crown has proven beyond a reasonable doubt that Mr. Bluecloud was the perpetrator of each robbery. No witness identifies Mr. Bluecloud as the perpetrator. The case against Mr. Bluecloud with respect to all the alleged offences is entirely circumstantial.

[5] The Crown has brought a similar act application. Mr. Husband is applying to have the evidence from each incident applied to all other incidents on the basis that they were committed by the same person (the “count-to-count” aspect of the application), and also to admit evidence relating to a robbery which Mr. Bluecloud committed in 2017 and pleaded guilty to in 2018 (the “2017 Robbery”) on all counts (the “extrinsic” aspect of the application).

[6] It was agreed that the evidence on the trial proper and the similar act application would be heard together.

[7] Many witnesses testified – several concerning each robbery. None of the witnesses’ credibility was challenged. The reliability of their observations, on the other hand, varied as among them, as one might expect from witnesses to such an event. As for the characteristics of the perpetrators, I place far greater reliance on the copious video evidence from the robberies than I do on the eye-witness testimony.

[8] Prior to the commencement of the hearing of evidence on the trial, the Crown sought the admission of an utterance made by Mr. Bluecloud shortly after his arrest for the first three incidents. This application was abandoned at the end of submissions.

[9] Mr. Bluecloud is also charged with offences arising out of an eighth robbery. In November 2020 I severed that charge from the other seven robberies for reasons I shall explain below.

[10] During the trial, which took place over Zoom; with all parties, witnesses and counsel participating remotely, Mr. Bluecloud said something in response to a question I asked him. Mr. Husband sought admission of that utterance and I ruled it inadmissible, the reasons for which I shall also explain below.

B. THE MOTION FOR SEVERANCE

[11] Mr. Bluecloud originally sought to have the charges grouped into three trials: one for the three November 2019 bank robberies, one for the four April 2020 bank robberies and one trial for an isolated robbery of two grocery store clerks and a bystander on April 18, 2020.

[12] The sole issue in the alleged bank robberies is whether Mr. Bluecloud is the perpetrator. The case against Mr. Bluecloud on the bank robberies is entirely circumstantial. While the similar act application had not yet been argued when I decided the severance motion, it was abundantly clear to me that the similar act application was potentially strong and that I as the trial judge was destined to hear the details of all the alleged offences during the hearing of the similar act application.

[13] As for the alleged offences arising out of the grocery store robbery, they are of a different nature entirely. Unlike in the seemingly unarmed bank robberies, this set of offences was committed by a perpetrator wielding a knife. Mr. Bluecloud was arrested while allegedly fleeing the scene of the crime. That he is the perpetrator of these April 18, 2020 crimes seems like it will be relatively easy for the Crown to prove. I was told that Mr. Bluecloud might well testify on this charge but not on the bank robberies.

[14] Whether severance should be ordered is governed by s. 591(3) of the Criminal Code. The trial judge may sever where “[he/she] is satisfied that the interests of justice so require”.

[15] The factors that may be considered by the trial judge on a severance application (regarding counts) include:

(a) the factual and legal nexus between the counts; (b) general prejudice to the Applicant; (c) the undue complexity of the evidence; (d) whether the accused wishes to testify on some counts, but not on others; (e) the possibility of inconsistent verdicts; (f) the desire to avoid a multiplicity of proceedings; (g) the use of similar fact evidence at trial; (h) the length of the trial having regard to the evidence to be called; and (i) the potential prejudice to an accused having regard to his right to be tried within a reasonable time.

R. v. Last, 2009 SCC 45 at para 18.

[16] In my view, there is a significant factual and legal nexus among the seven bank robberies. There is no significant risk of prejudice to Mr. Bluecloud in having these all tried together by a single judge without a jury. See R. v. E.(L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.) at 238; R. v. T.B., 2009 ONCA 177 at paras 26-27; R. v. J.C.L., 2012 ONSC 6603 at para 15.

[17] On the other hand, the “grocery store” offences are radically different in kind. Moreover, there are no witnesses in common such that a severance of the grocery store offences will duplicate court resources. And I find that the possibility of Mr. Bluecloud testifying in the case of the grocery store incident is a realistic one.

[18] I thus ruled that the seven alleged bank robberies would proceed as one trial and that the grocery store incidents would proceed at a second trial before a different judge.

C. THE MID-TRIAL UTTERANCE

[19] The COVID-19 pandemic has forced radical changes upon the justice system. In-person trials have become the exception, and those accused who choose to insist on being able to appear in court in-person are forced to wait, while those accused willing to waive their right to appear in person can have their Zoom trials more quickly.

[20] Mr. Bluecloud chose to waive his right to an in-person trial and agreed to a Zoom trial. He was, and continues to be in custody on these charges, and he was brought to a small secure video room at the detention centre every day for his trial.

[21] It goes without saying that it is essential that an accused hear every word spoken during their trial. During in-person trials, it is sometimes necessary to ensure that witnesses speak loudly enough to be heard, and where an accused is having difficulty they will usually tell their lawyer who will bring it to the attention of the presiding judge. It is most uncommon for the presiding judge to ask an accused if they can hear what’s going on. It is better, in my view, that judges ask the accused’s lawyer if the accused is following what’s going on during the proceedings. The reason for this is that an accused has the right to remain silent and shouldn’t be forced to answer a judge’s question during a trial. An accused would likely feel compelled to answer and there is a risk that something they might say could be incriminating. For these reasons, that is my usual practice.

[22] During Zoom trials, it is very difficult for the accused to signal to their lawyer that their connection has failed. During Mr. Bluecloud’s trial it appeared to me at one point as if Mr. Bluecloud’s connection to the Zoom hearing had fallen apart shortly before I called for a routine break in the proceedings. As court was resuming and as all the participants were signing onto the Zoom platform, and before all of them were in place, and before I thought the court was back on record, I asked Mr. Bluecloud if he had missed anything before we took the break. He said this: “I just got to the part where she was describing my build”.

[23] It turned out that we were indeed on the record. I wasn’t sure who else had heard Mr. Bluecloud’s answer to my question, so I brought it to the attention of counsel. Mr. Husband then brought an application to have it ruled admissible.

[24] After hearing oral argument from the Crown and defence I ruled the statement inadmissible. Mr. Husband marshalled the following authorities, none of which I felt supported his position: R. v. Drascovic, [1972] 1 O.R. 396-403 (C.A.); R. v. Govedarov, [1974] O.J. No. 1837 (C.A.); R. v Higham, 2007 ONSC 20103; R. v. Tayongtong, 2017 ONSC 4154; and R. v. Jarvis, 2002 SCC 73.

[25] In my view, the entire event was precipitated by my error in addressing Mr. Bluecloud and asking him a direct question. I created a situation where it was likely Mr. Bluecloud felt compelled to answer my question. Moreover, the event would not have occurred if Mr. Bluecloud had not been “forced” (by COVID-19 circumstances) to have a Zoom trial. Add to that the equivocal nature of the utterance and the lack of opportunity for Mr. Bluecloud to consult counsel before answering. I ruled that the prejudice associated with admitting the statement far outweighed its probative value and excluded it.

D. THE COURT’S FINDINGS WITHOUT REFERENCE TO SIMILAR ACTS

(a) Introduction

[26] Even though much of the Crown’s case revolves about the similar act application, there are several findings that can be made without reference to the alleged similar acts. It is worth examining the evidence before embarking on the similar act question to see if the Crown has succeeded in proving Mr. Bluecloud’s identity as the perpetrator of any of the robberies. All of these non-similar-act findings can then be carried over to the similar act analysis.

(b) Mr. Bluecloud’s characteristics

[27] A good profile of Mr. Bluecloud is available on the evidence. Post-arrest photos of Mr. Bluecloud, a booking video, the agreed statement of fact, and jail records lead me to conclude that Mr. Bluecloud:

1. Was in custody between Nov. 18, 2019 and March 27, 2020
2. Has dark hair and a distinctive hairline with a slight widow’s peak
3. Has pierced ears, the whole in his right ear being larger than average
4. Has a large and distinctive tattoo on the right side of his neck
5. Is indigenous, yet might easily be confused for Asian [1]
6. Speaks without an accent
7. Has a relatively large nose that is broad at the bottom
8. Has a slim to medium build
9. Is 5’10” or 178 cm tall
10. Was 34 years old at the time of the November robberies and 35 years old at the time of the April robberies

(c) Incidents #2 and #3

[28] The evidence leads to the inescapable conclusion that the perpetrators of robbery #2 and robbery #3 are the same individual and that Mr. Bluecloud is that individual.

[29] These two robberies occur minutes apart. Video clips from the bank and the McDonalds across the street from the bank show the perpetrator of robbery #3 arriving and departing in the same taxi.

[30] Bank video of robbery #2 and bank video of robbery #3 make clear that the perpetrators are dressed peculiarly and identically – the same distinctive grey jacket with a fur trimmed hood and a distinctive hem, the same shoes, the same black pants, the same dark red gloves, and the same face covering and glasses. Both perpetrators are described by witnesses at the banks as in the vicinity of 5’10’ and are of slim to medium build.

[31] A person dressed identically to the perpetrators of incidents #2 and #3 is captured on LCBO in-store video at 879 Bloor Street West 15 minutes after incident #3. There was some dispute as to the accuracy of LCBO employee Pamela McKinnon’s evidence as to the provenance of the video and whether it came from that store and was properly timestamped. I accept her evidence in this, and every other regard.

[32] The clothing of the individual seen in the LCBO store video is so particular and identical to the clothing worn by the perpetrators of the two robberies that the only available conclusion is that they are all the same person.

[33] Two of the LCBO videos capture a relatively good view of the perpetrator’s face. I viewed those videos and screen grabs from the videos several times. I compared them carefully to known images of Mr. Bluecloud. Applying the principles set out by the Supreme Court in R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197, I conclude that the person in the LCBO videos is Mr. Bluecloud. I note the distinctive hairline, the facial structure, the pattern of facial hair, the shape of the nose and the striking general likeness.

[34] The defence argues that the law as articulated in Nikolovski requires the Crown to prove that the video in question has not been altered. This argument was considered and rejected by the Alberta Court of Appeal in R. v. Bulldog, 2015 ABCA 251 at paras. 26-33. The Court concluded that, Nikolovski imposes no requirement that the video not be altered. The words that appear to suggest that refer to non-alteration as a sufficient condition, but not a necessary one. Moreover, such a requirement would not be justified in principle and could lead to perverse results. The Court held at paragraph 33 that:

the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show.

[35] As Mr. Husband points out, the Court also went on to state that the category of witnesses that can authenticate a video is broad and open-ended. Since some of the classes of people who can authenticate a Nikolovski video – such as eyewitnesses to the event described – would invariably not be in a position to testify to non-alteration of the video, it must be the case that non-alteration is not a barrier to consideration of a video for Nikolovski purposes.

[36] These passages from Bulldog have been followed in Ontario, including by the Court of Appeal: R. v. C.B., 2019 ONCA 380 at para 68; R. v. A.S., 2020 ONCA 229 at paras 27-28; R. v. I.C-F., 2020 ONCJ 524 at paras 27, 40.

[37] Ms. McKinnon’s testimony meets the threshold for the authentication of the LCBO video. She was able to testify that the video represents what it purports to show – the interior of the LCBO at 879 Bloor West – based on her familiarity with the layout of that location and her knowledge of its store number. She also testified as to the process by which such videos are made and maintained by the LCBO, and the ways in which accuracy is ensured. She testified as to the features that authentic LCBO security videos have, such as time and store stamps, and identified those features as present on the video.

[38] Defence counsel also argue that the LCBO video cannot be subjected to a Nikolovski analysis because it is not a video from the crime scene. I reject this argument. Courts have been prepared to compare a video of a perpetrator at a location other than the crime scene to the accused. For example, in R. v. James, 2015 ONSC 3902 at paras. 12, 17, 29-37, the Court admitted video evidence of a robber attending a Sport Chek store and purchasing a hockey bag that was used in a robbery at a different location approximately half an hour later. The Court compared the image of the person on the video to the accused in Court and concluded they were the same person.

[39] Defence counsel point to the testimony of Mr. Hood, an eyewitness to robbery #3, and assert that Mr. Hood categorically opined that the man in the LCBO video is not the robber and that I should thus have a reasonable doubt on the issue.

[40] While Mr. Hood does appear to be looking at the perpetrator when he enters the bank, the perpetrator’s head is turned down and away from Mr. Hood. Second, while Mr. Hood did indicate that he could see a goatee and determined the perpetrator to be white based on his cheekbones, he went on to acknowledge that he could not in fact see the perpetrator’s cheek structure, and could only see the region immediately around the perpetrator’s eyes. This admission undermines the weight of his earlier statements regarding the goatee and cheekbones. Third, Mr. Hood’s reason for not offering the opinion that they were the same person was “I can’t be a hundred per cent so I’m not going to say yes.”

[41] Moreover, in my opinion, Mr. Hood was an unreliable witness. His testimony changed repeatedly and his purported ability to make any accurate observations disintegrated under cross-examination.

[42] Finally, Mr. Hood’s opinion flies in the face of the overwhelming objective evidence noted above that the person in the LCBO is the perpetrator.

[43] I am thus convinced beyond a reasonable doubt that Mr. Bluecloud is responsible for the two robberies in question.

E. THE SIMILAR ACT APPLICATION

(a) Introduction

[44] As stated earlier, all the alleged robberies were captured on video. Several witnesses from each bank testified as to the heavily disguised perpetrators’ modi operandi, the words they spoke, their height and build, their ethnicity, etc. There is also before the court, photographic evidence of Mr. Bluecloud’s appearance when arrested on several occasions, as well as an agreed statement of facts concerning certain characteristics of Mr. Bluecloud and certain details concerning the robberies.

(b) The Law

[45] On a multi-count information, an accused is entitled to have separate, yet simultaneous trials on all the counts. As concerns any given count, evidence with respect to the other counts is generally not admissible. Likewise, evidence of other crimes not before the court is presumptively inadmissible.

[46] Where, however, the sole issue is identity, the trier of fact, in dealing with any one count, is allowed to consider the evidence of any other count or counts (whether on the information or not) where the judge is satisfied that all the offences being considered were likely committed by the same person and that there is some evidence linking the accused to the similar acts. R. v. Arp, 1998 SCC 769, [1998] 3 SCR 339; R. v. MacCormack, 2009 ONCA 72 at para 51; R. v. J.H., 2018 ONCA 245 at paras 31-32.

[47] In the case before me Mr. Husband argues that there are so many similarities as among all the bank robberies that this test is met as to all of them. Defence counsel disagree, arguing that the similarities are largely generic and that the dissimilarities demonstrate that it cannot be said that the robberies were likely all committed by the same person.

[48] The proper approach is to inquire whether the similarities, “viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors” R. v. Baskaran, 2020 ONCA 25 at para 40. The question is not whether each individual connection meets the Crown’s burden; it is whether the collection as a whole does. See too, R. v. Knezevic, 2016 ONCA 914 at para 31.

[49] As Mr. Husband accurately sets out in his factum, generally, at the first step of the Arp test, the focus should be on the similarities between the acts themselves, rather than attributes which link the acts to the accused. However, the case law is clear that, with appropriate caution, the Court can consider evidence that connects the offences to the accused at this step if such evidence also connects the offences to each other: R. v. MacCormack, 2009 ONCA 72 at paras 80-81. A court does not err in doing so, as long as there is a high degree of probative value and relevance to the evidence, and the focus remains on the similarity between the acts and the objective improbability of coincidence: R. v. Manitopyes, 2016 SKCA 61 at para 21.

[50] Where, as in this case, the accused is strongly linked to more than one of the acts, that unto itself can be a factor connecting the acts to each other: R. v. Manitopyes, 2016 SKCA 61 at para 30.

[51] A finding that any set of offences were likely committed by the same person does not inevitably lead to conviction. The ultimate burden on the Crown of proving each alleged offence beyond a reasonable doubt must be borne in mind. It is theoretically possible for the Crown to succeed with its similar act application as to all the alleged counts yet fail to secure a conviction on any of them. R. v. Arp, supra, at para. 79; R. v. Mitchell, 2008 ONCA 757 at paras 11-14.

(c) Introduction to my treatment of the evidence

[52] It is not my intention to summarize the vast quantity of evidence in this case. The transcript of the witnesses’ testimony and the exhibits are available for review. Rather, I intend to summarize what I believe are the salient similarities and dissimilarities among the eight robberies in question that assist me in deciding which, as among these eight robberies, were likely committed by the same person.

[53] Some of the conclusions that I draw are not a matter of contention. For those that are, I will explain why I have made the findings in question.

(d) The timing and location of the robberies

[54] The November robberies all occur within a short period of time and within a tight geographical boundary. The April robberies occur within a short period of time, but the geographical boundary among them is much wider.

[55] Mr. Bluecloud was available to commit all these robberies, in that he went into custody on Nov. 18, 2019, and was released on March 27, 2020. The seven robberies on the information all took place within 30 out-of-custody days.

(e) The heights of the perpetrators

[56] Most of the witnesses to the robberies gave estimates of the height of the robbers. As expected, these witnesses all had varying opportunities to observe in circumstances that were not ideally conducive to an accurate assessment of height and it is no surprise that for all the robberies the witnesses’ height estimates vary to some degree. The caselaw recognizes that “assessment of height is an opinion upon which witnesses often disagree”: R. v Dusanjh, 2016 ONSC 2358 at para 35. In some cases, the height of the perpetrator can be assessed by reference to a ruler beside the entrance to the bank. Many of the bank videos available show the perpetrator walking past that ruler.

[57] In my view it can be safely said that the perpetrator of every robbery but #6 is somewhere between 5’8” and 6’0”. As for robbery #6, I hesitate to draw this conclusion. One eyewitness put the perpetrator at 5’5”, and the other at 5’8” or 5’9” at most. The security camera footage suggests that the perpetrator is of average height. For robbery #6 I conclude that the perpetrator may have been around 5’10”, but I would not conclude that he was.

(f) The robbers’ other characteristics

[58] The perpetrator of all eight robberies is either described as having a light to medium build or is seen on the videos to have a light to medium build. [2]

[59] He is described as Asian by several witnesses in robberies #1, #3, #5, #6 and #7. He is described as indigenous by some witnesses in robberies #3 and #5. A few witnesses to the robberies opined that the perpetrator was white, one opined that he was black. In my opinion, none of the witnesses’ observations of ethnicity is reliable. The robber in every instance was so heavily clothed and masked that no witness would have been able to accurately assess ethnicity. Yet the significant number of witnesses who identify the perpetrator as either indigenous or Asian is noteworthy since Mr. Bluecloud is indeed indigenous yet might be said to appear Asian.

[60] The robber appears to be wearing socks or mittens on his hands in robberies #4, #5, and #7.

(g) The use of a taxi

[61] The robber departed from robberies #2, #3, #5, #6, #7 and 2017 in a taxi. In robbery #2 the robber departed from Yonge and Bloor. In robberies #5 and #7 the robber instructed the taxi driver to drive to Yonge and Bloor. In robberies #3, #6, and #7 the robber asked the driver to take him to an LCBO after departing the robbery, although he later changed his instructions to the driver after robbery #7. In robberies #5 and #7 the robber left a bag in the taxi while committing the robbery.

(h) The tattoo

[62] None of the bank videos shows a neck tattoo on the perpetrator. This is not surprising given how heavily disguised the robbers were. Their necks were largely covered. Only two witnesses say they saw a tattoo: Mr. Reim, who witnessed robbery #7, and Mr. Ismail, the cab driver for robbery #5.

[63] Defence counsel points to the evidence of Mr. Reim and argues that it undermines the Crown’s similar act argument, as well as the strength of the case against Mr. Bluecloud on robbery #7. While Mr. Reim testified that the tattoo was on the right side of the robber’s neck (as is Mr. Bluecloud’s), he told the police that it was on the left side of the robber’s neck. He explained in his testimony that he confused his left with the robber’s left when he spoke to the police.

[64] As Mr. Husband points out, Mr. Reim was clear, responsive to questions, and clearly observant on the day of the robbery. He stated unequivocally that he independently arrived at his conclusion that he had misstated which side of the robber’s neck the tattoo was on.

[65] As concern’s Mr. Reim’s description of the tattoo as “Asian or gang”, contrary to defence counsel’s argument, this is not inconsistent with Mr. Bluecloud’s tattoo. Mr. Reim’s words suggest a tattoo composed of calligraphic writing, in contrast to a tattoo that contains clearly printed roman characters or a picture. This is consistent with the tattoo on Mr. Bluecloud’s neck.

(i) Modi Operandi

[66] With only the rare exception, which I shall detail below, the robbers’ modi operandi are tremendously similar. The robbers all act alone. Their faces are covered. They do not brandish a weapon. The robberies are all relatively unsophisticated. They all threaten violence yet there is no actual violence except in robbery #6 where the robber pushes a teller out of the way in frustration.

(j) Demeanour

[67] Although there are some minor differences among the robberies, overall, the demeanours of the robbers are quite similar. Except in robbery #4, the robber is described as nervous and impatient. He is familiar with bait bills or dye packs in robberies #1, #3, #5, #6, and #7. He either throws or threatens to throw the bait bills in robberies #3, #5 and #7. In robbery #6 he tosses the dye pack aside.

(k) The hold-up notes

[68] Mr. Bluecloud presented a hold-up note in the 2017 robbery. Hold-up notes were presented in robberies #1, #4, #6 and #7. Mr. Husband argues that certain similarities among the notes support his similar act argument. Defence counsel acknowledge certain similarities but argue that these similarities are superficial or insignificant. They point to the many dissimilarities among them and argue that these dissimilarities are more significant than the similarities and undermine the Crown’s similar act application.

[69] I will not set out in detail the many similarities and differences alluded to by counsel in their submissions. I will simply say that I find the similarities between note #7 and the 2017 note to be remarkable. They fortify my conclusion (as set out below) that these two robberies were likely committed by the same person. As concerns the notes used in robberies #1, #4 and #6, weighing the differences and similarities I find them to be neutral on the similar act application.

[70] The hold-up notes have a greater impact on the reasonable doubt analysis set out later in these reasons.

(l) Conclusion re similar act

[71] I find on all the evidence that it is probable that robberies #1, #2, #3, #4, #5 and #7 along with the 2017 robbery were committed by the same person.

F. WHICH OFFENCES HAVE BEEN PROVED BEYOND A REASONABLE DOUBT?

[72] For each robbery I must examine all the evidence from the robbery itself, along with the evidence from the other similar act robberies and decide which, if any robberies have been proven beyond a reasonable doubt to have been committed by Mr. Bluecloud. Given the circumstantial nature of the evidence, the question becomes whether it is reasonably possible that someone other than Mr. Bluecloud committed any of the robberies on the information: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[73] As explained above, I am convinced beyond a reasonable doubt that the perpetrator of robberies #2 and #3 is Mr. Bluecloud.

[74] The many similarities between robbery #5 and robberies #2 and #3 which I found were committed by Mr. Bluecloud, along with the evidence concerning the appearance of perpetrator #5 in the taxi convince me beyond a reasonable doubt that Mr. Bluecloud committed robbery #5. I refer to the several characteristics of the perpetrator that are shared with Mr. Bluecloud: the neck tattoo, [3] the large ear-piercing, the hairline and the hairstyle. I also take into account the camo pants worn by the perpetrator that are similar to the camo pants Mr. Bluecloud was wearing when arrested in April, 2020, and the style and location of an ear piercing common to Mr. Bluecloud and the videos of the perpetrator.

[75] As concerns robbery #7, the similarities between it and robberies #2 and #3 (committed by Mr. Bluecloud), along with the very peculiar styling of the letters “a” and “y” in both the 2017 hold-up note (admittedly written by Mr. Bluecloud) and the note written by perpetrator #7 convince me beyond a reasonable doubt that Mr. Bluecloud is the perpetrator of robbery #7. I add to that the similarities in the grey jacket worn by the perpetrator of robbery #7 and Mr. Bluecloud in robberies #2 and #3.

[76] As concerns robbery #1, even though I am convinced that it is probable that this robbery was committed by Mr. Bluecloud, I nonetheless conclude that it is reasonably possible that it was committed by someone else. The letter “y” in the hold-up note is remarkably different from the letter “y” in the hold-up notes written by Mr. Bluecloud in 2017 and in robbery #7. This difference weighs heavily against the similarities between robbery #1 and any of the others.

[77] As concerns robbery #4, I reach the same conclusion as I do regarding robbery #1. Notwithstanding the similarities between that robbery and the others I conclude were probably committed by Mr. Bluecloud, I nonetheless have a reasonable doubt that Mr. Bluecloud is indeed the robber in robbery #4. Someone else might reasonably be responsible. The differences between hold-up note #4 and the 2017 and #7 hold-up notes contribute to my reasonable doubt.

[78] As concerns robbery #6, given my conclusion that it is not likely that this robbery was committed by the same person who committed all the others, Mr. Bluecloud must be acquitted. Specifically, I am left in doubt by the several witnesses who describe the perpetrator as shorter than Mr. Bluecloud, and the fact that the perpetrator either wore a blond wig or had blond hair. Finally, I consider the differences between hold-up note #6 and the notes in robbery #7 and the 2017 robbery to outweigh any similarities.

G. CONCLUSION

[79] For the reasons set out above I find Mr. Bluecloud guilty of all the alleged offences on the information related to robberies #2, #3, #5 and #7. I also find him guilty of fail to comply with a recognizance and probation.

[80] I find him not guilty of the remaining counts on the information.

Released on June 22, 2021

Justice Russell Silverstein

[1] Defence counsel argues that it is not open to me, without evidence, to conclude that Mr. Bluecloud, although indigenous, could be mistaken as Asian. I disagree. In my view it is open to me to apply my experience to matters concerning Mr. Bluecloud’s appearance.

[2] I refer in these reasons to the charged robberies as robberies #1-#7. I refer to the robbery for which Mr. Bluecloud was convicted as “the 2017 robbery”.

[3] The pictures of the perpetrator in the back of Mr. Ismail’s taxi clearly show he has a neck tattoo. I reject Mr. Ismail’s testimony to the effect that this was not a tattoo, but rather a piece of the perpetrator’s jacket. The perpetrator was not wearing a jacket.