ONTARIO COURT OF JUSTICE DATE: 2022 01 11 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, February 16, and September 9, 2021 Judgment released on: January 11, 2022 [^1]
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.
[2] Mr. Thomas elected to be tried in the Ontario Court of Justice and entered not guilty pleas on all charges. The Crown made a cross-count similar act application which I dismissed with written reasons at R. v. Thomas, 2021 ONCJ 305; [2021] O.J. No. 2973 . [^2]
[3] Identity is the issue with respect to each of the robberies. At trial, the Crown sought to establish that Mr. Thomas was the lone perpetrator of the March 7 and April 25 robberies and that he was one of two perpetrators who committed the April 8 robbery.
[4] These are my reasons for finding Mr. Thomas guilty of the counts relating to the April 25, 2020 robbery and not guilty of the counts relating to the other two robberies.
OVERVIEW
[5] Surveillance videos and still photographs from each of the three robberies were made exhibits on the trial. The accused made formal admissions in a brief that the Crown and Defence jointly filed as Exhibit 1 on the trial. This joint brief contains booking photographs of the accused that the police took on December 5, 2019 and April 29, 2020.
[6] The Crown, relying on the rule in R. v. Nikolovski [^3], urges me to identify Mr. Thomas as the black male perpetrator of each robbery by comparing his appearance in the courtroom and in his booking photographs with the appearance of the perpetrator in the surveillance videos and still photographs from each robbery. In the alternative, the Crown asks that I find Mr. Thomas guilty of each robbery based on the cumulative effect of the circumstantial evidence relating to each robbery, including Mr. Thomas’s resemblance with the black male perpetrator of each robbery.
[7] Mr. Thomas did not testify or lead any evidence.
LEGAL PRINCIPLES
[8] The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence it introduces satisfied the trier of fact beyond a reasonable doubt that the accused is guilty. [^4] A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”. [^5]
[9] In Mr. Thomas’s case, the Crown relies on videotape evidence to establish identity. In Nikolovski [^6], the Supreme Court of Canada held that because videotape evidence can present “very clear and convincing evidence of identification…triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime”.
[10] In Nikolovski [^7], the Supreme Court of Canada addressed this issue in the context of the trier of fact comparing the appearance of the accused in court with a videotape of the actual robbery. The Court cautioned that triers of fact must exercise care in identifying the accused as the perpetrator based solely on videotape evidence and noted that “[t]he degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence”.
[11] In R. v. Keating [^8], the trial judge accepted the complainant’s evidence, which established that the person in certain Facebook photographs committed the crimes alleged. The Crown also relied on the trial judge’s comparison of the person in the Facebook photographs with the person shown in the accused/appellant’s mugshot. [^9] The Court of Appeal noted that, “[b]ased on that comparison, the trial judge was satisfied that the appellant, who was obviously the person shown in the mugshot, was also the person shown in the Facebook photographs identified by the complainant”. [^10]
[12] The Ontario Court of Appeal rejected the appellant’s argument that Nikolovski [^11] “limits a trier of fact’s ability to identify an accused as a person depicted in a photograph or video to situations in which the photograph or video is a depiction of the accused committing the crime or acting in close proximity to the commission of the crime”. Doherty J.A., writing for the Ontario Court of Appeal in Keating [^12] stated:
The trial judge's in-court observations, including his assessment of the complainant's credibility and acceptance of her testimony, allowed him to conclude that the person in the Facebook photographs who had committed the crimes, was the same person who was before him in court. The trial judge's reliance on his own observations to forge the connection between the perpetrator of the crimes and the accused before the court did not offend the analysis in Nikolovski or any other evidentiary principle.
[13] The Crown submits that, for each of the three robberies, even if I am unable to identify Mr. Thomas as the perpetrator of the robbery based solely on the videotape evidence, the cumulative effect of the circumstantial evidence relating to each robbery, including Mr. Thomas’s resemblance with the black male perpetrator, establishes his guilt.
[14] I denied the Crown’s similar act application. In order to find Mr. Thomas guilty of any one of the robberies, the totality of the circumstantial evidence relating to that particular robbery must satisfy me beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty. [^13] I am mindful that inferences consistent with innocence do not have to arise from proven facts, as this would put “an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence”. [^14]
[15] When assessing the circumstantial evidence, I must consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. [^15] Other plausible theories or other reasonable possibilities “must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”. [^16]
[16] The Crown does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. [^17] As the Supreme Court of Canada noted in R. v. Villaroman [^18], “the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”.
[17] Circumstantial evidence “does not have to totally exclude other conceivable inferences”. [^19] The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable. [^20] Alternative inferences must be reasonable, not just possible. [^21]
[18] It is the cumulative effect of all the evidence that must satisfy the standard of proof beyond a reasonable doubt. In R. v. Uhrig [^22], the Ontario Court of Appeal explained how individual pieces of evidence, considered cumulatively, can satisfy the Crown’s burden:
Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[19] In R. v. John [^23], it would have been unsafe for the trier of fact to positively identify the accused as the perpetrator based on the rule in Nikolovski because there were insufficient features of the person visible in the videotape for the trier of fact to conclude, with confidence, that the accused was the person depicted in the videotape. [^24]
[20] However, this did not preclude the court from considering that there was a resemblance between the accused and the perpetrator; the nose, mouth, moustache, jaw line were all similar as between the accused and the perpetrator, and there was no dissimilar feature observed. Code J. stated: [^25]
The law is clear that evidence of a "resemblance", established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification, in determining whether the Crown has proved its case. See: R. v. Brown (2009), 251 O.A.C. 264 at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.). Furthermore, evidence of a "resemblance" can complete the Crown's proof of identity, depending on the strength of the other identification evidence. As Watt J.A. put it in R. v. Rybak (2008), 233 C.C.C. (3d) 58 at para. 121 (Ont. C.A.), giving the judgment of the Court:
As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution's proof.
Also see: R. v. Boucher (2000), 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.).
[21] Therefore, evidence of resemblance between the accused and the perpetrator in the videotape or photographs “is entitled to some weight in relation to the ultimate issue of identity”. [^26]
[22] Similarities between clothing worn or in the possession of the accused and clothing worn by the perpetrator can offer some circumstantial evidence on the issue of identity. [^27]
ANALYSIS
The Select Convenience Robbery on April 25, 2020:
[23] Mr. Thomas is charged with the following offences from April 25, 2020:
(1) Count 1: Robbery of Ronak Patel: s. 344 of the Criminal Code; (2) Count 2: Disguise with Intent to Commit an Indictable Offence: s. 351(2) of the Criminal Code; (3) Count 3: Failure to Comply with a Probation Order made on August 15, 2018 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code; (4) Count 4: Failure to Comply with a Probation Order made on August 15, 2018 (do not possess any weapons): s. 733.1(1) of the Criminal Code; and (5) Count 5: Failure to Comply with a Probation Order made on September 5, 2019 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code.
[24] On April 25, 2020, at 11:39 p.m., a male robbed the Select Convenience located at 54 Queen Street South, Hamilton, Ontario. The perpetrator approached the store clerk, Ronak Patel, and asked for an HDMI cable. The clerk left the cashier till to help the perpetrator. After a few moments, the perpetrator held the clerk’s throat, pointed a hammer at him, and pushed him towards the cash counter. The robber stated, “give me everything that you have, or I am going to hit you”. The robber then opened the till and took money totaling approximately $500.00.
[25] I find that the cumulative effect of the evidence adduced by the Crown in relation to the Select Convenience robbery establishes beyond a reasonable doubt that Mr. Thomas was the perpetrator.
[26] Mr. Thomas conceded the authenticity of the video surveillance inside the Select Convenience. These videos are of impressive clarity and quality. Notwithstanding the quality of the videos, an identification of Mr. Thomas as the robber cannot be made based solely on the video and stills from inside the Select Convenience. When he was inside the store, the perpetrator concealed the lower part of his face with a mask and, at some points during the robbery, he was wearing a hood which further concealed his head and his face. However, the upper part of the robber’s face, from the top of his nose to just above his eyes, is visible in certain video clips. From these clips, it is evident that the robber was a black male.
[27] The trial proceeded before me over a period of five days, during which I observed Mr. Thomas closely. [^28] I compared his appearance in court, and in his booking photos from December 5, 2019 and April 29, 2020 with the appearance of the robber in the Select Convenience videos. Based on my own observations, I find that there is a resemblance between the accused, Mr. Thomas, and the perpetrator of the Select Convenience robbery. In particular, the eyes, skin colour, height and build of the perpetrator seen in the Select Convenience videos resemble the eyes, skin colour, height and build of Mr. Thomas. This evidence of resemblance “is entitled to some weight in relation to the ultimate issue of identity”. [^29] I turn now to the other pieces of circumstantial evidence that the Crown relies upon.
[28] Clothing items worn by the robber are clearly visible in the Select Convenience videos. I reviewed the videos from the Select Convenience many times. I also stopped the videos at certain points and zoomed in during certain portions of the videos. From my review of the videos, I was able to observe that the robber wore the following items of clothing:
(a) a reddish/brownish coloured hoodie sweatshirt with gold writing on the chest which says “The North Face”; [^30] (b) in the overhead video behind the counter, a green hood is visible which suggests that the robber was wearing a green hoodie underneath the “The North Face” hoodie; (c) dark green pants; (d) when the robber comes behind the counter with his left hand on the clerk’s throat, he is not wearing a hood; the robber has a black fitted head covering on his head; (e) a white glove on his left hand and a black glove on his right hand; (f) a black mask/face-covering with white marihuana leaf decals on it; and (g) tan/greenish/grey coloured shoes with white soles.
[29] One of the videos from inside the store shows the perpetrator removing bills from the cash register, including five-dollar bills. The robber left the store at 11:42 p.m..
[30] Surveillance from the nearby Staybridge Suites at 20 Caroline Street South shows someone walking northbound on Hess Street South heading in the direction of King Street West at approximately 11:44 p.m.. This person can only be seen at a distance. No identifying features of the person or their clothing can be made out. A second person follows shortly behind the first person but turns right and is seen walking eastbound toward the Staybridge Suites camera wearing a dark jacket and what appears to be a baseball hat underneath a hoodie. This person has a backpack on their back.
[31] The Tim Hortons restaurant at 239 King Street West is approximately five minutes walking distance from the Select Convenience. Video surveillance of the dumpster area of the Tim Hortons depicts a male who resembles Mr. Thomas walking toward the dumpster at approximately 11:47 p.m.. The male is black and has a beard that resembles Mr. Thomas’s beard as depicted in the booking photographs from both December 5, 2019 and April 29, 2020. His height and build resemble the robber’s and Mr. Thomas’s height and build.
[32] When this male first appears in the video of the dumpster area of the Tim Hortons, he is wearing a black head covering that resembles the head covering worn by the robber of the Select Convenience. He appears to have something in his right hand because it casts a shadow on the wall as he walks into view. However, it is impossible to discern what the male has in his right hand. Three horizontal white stripes are visible on his right sleeve. When the male arrives at the first dumpster, he lifts his right hand as if he is placing something in the dumpster and then he walks away.
[33] Video from outside the front of the Tim Hortons shows the same black male that attended the dumpster area. The three white stripes are clearly visible on his right sleeve as is the black head covering. Again, the side profile of this male shows that he has a beard which is similar in appearance to Mr. Thomas’s beard in the booking photographs. The male then walks toward the Big Bee and Food Mart at 215 King Street West (“Big Bee”).
[34] The videos from the Big Bee are also of impressive clarity and quality. I find that they depict the same male who is seen in the video clips from the front of the Tim Hortons and the Tim Hortons dumpster area. At approximately 11:48 p.m., the black male entered the Big Bee, wearing the black head covering resembling the one worn by the robber of the Select Convenience and a green hoodie sweatshirt that matches the colour of the hood the robber was wearing. The right sleeve of the hoodie has the three horizontal white stripes. The male is wearing a dark coloured vest jacket over the hoodie and has a backpack on his back. Again, the height and build of this male resembles the height and build of Mr. Thomas and the robber of the Select Convenience. The shoes worn by the black male in the Big Bee resemble the colour and appearance of the shoes worn by the perpetrator of the robbery.
[35] When the black male paid for the items at the Big Bee, he removed a roll of bills from the right pocket of his pants. Again, the beard of the male in the Big Bee videos resembles the facial hair of Mr. Thomas depicted in the booking photos and the surveillance video from the Budget Inn at 737 King Street East where Mr. Thomas was arrested on April 29, 2020. By viewing the video outside the Big Bee and the still photographs from inside the Big Bee (especially Slide 42 of Trial Exhibit 2), I find that the nose of the black male resembles Mr. Thomas’s nose, both with respect to its size and shape, as seen in the booking photos. Furthermore, the black male in the Big Bee has puffiness around his eyes that resembles the puffiness seen around Mr. Thomas’s eyes in the booking photos.
[36] The video from outside the Big Bee shows the black male leave the store with the items he purchased in his hands. The black male is now with another male who is wearing a black jacket over top of a hoodie sweater; he has the hood up with a baseball hat underneath. In addition to similarities in clothing, this other male’s height and build resemble the height and build of the person who was seen walking in the Staybridge Suites video. This other male, who appears to be white, has two backpacks. One of the backpacks is turquoise in colour and has white trim on top and white side pockets.
[37] When the black male and this other white male leave the area of the Big Bee, they walk toward the Tim Hortons parking lot. They are seen leaving in a taxi. Mr. Thomas admitted the authenticity of the video surveillance of the apartment building located at 20 Emerald Street North where the two men are next seen at approximately 12:00 a.m. on April 26.
[38] I find that the black male and the white male seen in the video surveillance at 20 Emerald Street North shortly after midnight are the same male persons seen a few minutes earlier in the video surveillance outside the Big Bee based on their appearances, clothing and the matching backpacks (a total of three backpacks).
[39] I further find that the black male person seen arriving at 20 Emerald Street North shortly after midnight was Mr. Thomas. The evidence of resemblance between this male and Mr. Thomas in the booking photos and the Budget Inn video is very compelling. These similarities include the shape of his face, his skin colour, the shape and size of his nose, the shape of his eyes and puffiness around his eyes, the beard/facial hair, the shape and appearance of his lips, his height and build. Based on the similarities I observed, I find that Mr. Thomas is the male depicted in the video surveillance at 20 Emerald Street North.
[40] My finding that Mr. Thomas is the black male seen arriving at 20 Emerald Street North shortly after midnight is bolstered by later video from that apartment building. At approximately 12:19 a.m., a black male and white male enter an elevator at 20 Emerald Street North. The black male has the same height and build as the black male who arrived at the building shortly after midnight but is wearing different clothing. The white male is the same height and build as the white male seen earlier and is wearing the same clothing, including a black baseball hat with red Under Armour logo, black hoodie, and a black jacket. These males are seen with the same three backpacks as the earlier males. However, at this point, the black male has the turquoise backpack with white trim on his back.
[41] I find that the black male seen at approximately 12:19 a.m. on the 20 Emerald Street North videos is also Mr. Thomas. He is wearing a black baseball cap with a light coloured/white brim and a black hoodie sweatshirt with grey square or rectangular patches on the lower part of each sleeve. The hat and the sweatshirt in Mr. Thomas’s possession at the time of his arrest on April 29, 2020, three days later, resembled those worn by the black male in the elevator at 12:19 a.m..
[42] For the reasons outlined above, I find that Mr. Thomas was the black male who was at 20 Emerald Street North shortly after midnight on April 26 and was the same black male seen on the earlier surveillance from Big Bee and Tim Hortons. Therefore, Mr. Thomas was in the vicinity of the Select Convenience around the time that the robbery occurred and had the opportunity to commit the robbery.
[43] In the post-robbery videos (Tim Hortons, Big Bee and 20 Emerald Street North), Mr. Thomas is wearing items of clothing that resemble clothing worn by the robber of the Select Convenience, including a green hoodie sweatshirt, [^31] tan/greenish/grey coloured shoes with white soles, and a black head covering.
[44] The robber of the Select Convenience was seen taking stacks of bills from the cash register. In one of the elevator videos at 20 Emerald Street North, Mr. Thomas takes out a roll of bills in his right hand and looks at it while speaking with the white male. This is another piece of circumstantial evidence to be considered in the assessment of the totality of the evidence.
[45] P.C. Kevin Willson was qualified as an expert to give opinion evidence in the field of dog article searches, including his interpretation of Police Service Dog (PSD) Jake's behaviour and indications on articles that PSD Jake located in the vicinity of the Select Convenience robbery. In the early morning hours of April 26, 2020, PSD Jake located the following items, which had fresh human scent on them, in the area of Hess Street South (which runs parallel to Queen Street South) and George Street:
(1) Black bandana (face covering) with white marihuana leaves (located at 12:31 a.m.); (2) One white and one black medical style glove (located side by side at 12:34 a.m., and approximately 10 to 15 feet from the bandana); and (3) “The North Face” hoodie matching the one worn by the perpetrator of the robbery (located at 12:46 a.m., approximately 40 metres from the gloves).
[46] The above items were located by PSD Jake approximately an hour after the robbery. They were found a short distance from the robbery and within a short distance of each other. These items match the appearance of the items worn by the robber. A reasonable and logical inference is that each of these items was worn by the perpetrator of the Select Convenience robbery and later discarded by him. P.C. Willson testified that the gloves were located side by side, almost on top of each other, and they looked like they had been removed; the fingers were still turned inside out. I find that the items located by PSD Jake, that had fresh human scent on them, were worn by the perpetrator of the robbery.
[47] Another piece of circumstantial evidence relied on by the Crown is the DNA evidence. Mr. Brian Peck, a forensic scientist in biology at the Centre of Forensic Sciences (CFS), testified that swabs were taken of the inside of the white latex glove and the black nitrile glove located by PSD Jake. One individual stood out as the major profile on both gloves (STR Profile 1).
[48] Mr. Peck explained that there is nothing in a DNA profile that would allow him to say how the DNA was deposited. For instance, there is nothing in the DNA profile that provides information about whether the DNA was deposited by someone wearing the gloves or from some other kind of deposition, such as a sneeze. Mr. Peck testified that there is also nothing in a DNA profile that would permit him to say when it was deposited or who was the last person to wear the gloves.
[49] However, Mr. Peck testified that STR Profile 1 was the major contributor of DNA on both gloves. On both gloves, STR Profile 1 was a complete profile, with fifteen pairs of numbers. Mr. Thomas’s DNA profile was compared to STR Profile 1. This comparison resulted in the finding that Mr. Thomas could not be excluded as the source of the male DNA profile (STR Profile 1) from the white latex glove and the black nitrile glove located in the area of Hess Street/George Street. CFS Biology Report #2 dated December 29, 2020 states:
The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 1 originates from Omar THOMAS than if it originates from an unknown person unrelated to Omar THOMAS.
[50] Mr. Peck testified that with a likelihood ratio of greater than a trillion, there is an extremely strong association between Mr. Thomas’s profile and STR Profile 1.
[51] Having found that the white and black gloves located by the police in the vicinity of the robbery and analyzed by the CFS were the gloves worn by the robber of the Select Convenience, Mr. Thomas’s DNA on the inside of both gloves offers a further piece of circumstantial evidence connecting him to the robbery of the Select Convenience.
[52] On April 27, 2020, at approximately 2:00 p.m., P.C. Willson attended the area of the Tim Hortons at 239 King Street West with PSD Jake. P.C. Willson viewed the video from the night of the robbery which showed the suspect attending in the dumpster area of the Tim Hortons and appearing to drop something inside the dumpster.
[53] P.C. Willson went to the dumpster, which was the cardboard recycling bin, and opened the lid. Inside the bin, P.C. Willson found a green pair of pants. When he found them, one leg was pulled inside out and the material of the pants was very wrinkly. [^32] The colour and material of the green pants seized from the dumpster resemble the colour and material of the pants worn by the robber of the Select Convenience. Mr. Thomas’s attendance at the bin within minutes of the robbery where he appeared to place something inside the bin, and the discovery of these pants which resemble those worn by the perpetrator, are additional pieces of circumstantial evidence connecting him to the robbery.
[54] The police seized Mr. Thomas’s cell phone when he was arrested on April 29, 2020. The police located text messages that had been sent and received in the hours leading up to the robbery, between approximately 3:43 p.m. and 8:41 p.m. on April 25, 2020. The text messages were admitted into the trial with the consent of the Defence without a voir dire into their admissibility. [^33] The Defence did not dispute that Mr. Thomas sent the outgoing messages, nor did the Defence dispute that Mr. Thomas received the incoming messages.
[55] The Crown submits that the text messages provide important circumstantial evidence that Mr. Thomas was planning and discussing a robbery. The Defence submits that the text messages are ambiguous and can be interpreted in many ways other than planning of a robbery.
[56] The Crown relies primarily on the following messages as indicative of Mr. Thomas planning and discussing a robbery:
3:43 p.m. : Outgoing (Mr. Thomas): Ok, so roughly how long because I’m dying to leave the house and go make some money. Incoming: I’m coming from Macy’s now.
8:27 p.m. : Outgoing (Mr. Thomas): I’m waiting for a 100 stone and its Saturday its gotta be open a little longer.
8:28 p.m. : Outgoing (Mr. Thomas): Its dope that we won’t have to get. Incoming: No it’s not it closes at 9
8:29 p.m. : Outgoing (Mr. Thomas): We must be able to get another one . Outgoing (Mr. Thomas): I don’t care where Incoming: Might as well just hit the pioneer instead it will be worth more money.
8:30 p.m .: Outgoing (Mr. Thomas): Even if it’s queen .
[57] The documents in possession rule applies to paper and electronic documents, including text messages found on a cell phone located on an arrested person. [^34] The Defence did not dispute that the Crown had proven that the accused was in possession of the text messages. The text messages were introduced by the Crown as original circumstantial evidence of the accused’s participation in a plan to commit a robbery.
[58] Having considered the text messages, in the context of the evidence as a whole, I find that, at 8:30 p.m., Mr. Thomas was discussing his intention to commit a robbery. Earlier in the day, Mr. Thomas stated that he was “dying to leave the house to go make some money”. At 8:29 p.m., Mr. Thomas says “we must be able to get another one….I don’t care where” followed by the unknown party suggesting “might as well just hit the pioneer instead it will be worth more money”. I find that it is reasonable to infer from this exchange of text messages that Mr. Thomas is discussing with the unknown party his desire to commit a robbery and that the unknown party is suggesting a location to rob that would be “worth more money”. Mr. Thomas’s response, “even if it’s queen” is telling because the robbery that occurs approximately three hours later was at the Select Convenience located on Queen Street South.
[59] I find that the only reasonable conclusion that can be drawn from the whole of the evidence is that Mr. Thomas was the perpetrator who committed the robbery of the Select Convenience on April 25, 2020. The following pieces of circumstantial evidence, considered in combination, lead me to this conclusion:
a) Mr. Thomas’s eyes, skin colour, height and build resemble the eyes, skin colour, height and build of the robber seen in the Select Convenience surveillance videos; b) for the reasons set out above, I find that Mr. Thomas was in the vicinity of the robbery around the time that the robbery occurred and, therefore, had the opportunity to commit the robbery; c) Mr. Thomas attended at the dumpster area of the Tim Hortons within minutes of the robbery and appeared to deposit something in a dumpster; two days later, the police found pants inside this dumpster that were similar in colour and material to those worn by the robber; d) the police conducted a dog track in the area of the robbery and found clothing items with fresh human scent on them. These articles of clothing resembled those worn by the perpetrator of the robbery (“The North Face” hoodie, a white glove, a black glove, and a black bandana/mask with white marihuana leaves on it). Since these items of clothing were found a short distance from the robbery, shortly after the robbery, and were also found within a short distance of each other, I find that they are items of clothing that were worn by the robber and later discarded by him. Swabbing of the insides of the white latex glove and black nitrile glove produced a major profile suitable for comparison. Mr. Thomas could not be excluded as the source of this DNA profile (STR Profile 1). The random match probability that someone other than Mr. Thomas was the source of STR Profile 1 found on the inside of the gloves was one in a trillion. Mr. Peck characterized this as “an extremely strong association between the profile of Mr. Thomas and the profile, STR Profile 1”. Mr. Peck could not say how the DNA got on the gloves. I recognize that the accused is not required to provide an innocent explanation for the presence of his DNA on the gloves. [^35] However, the presence of Mr. Thomas’s DNA on the inside of the gloves, which I have found to be the gloves worn by the robber of the Select Convenience, is one piece of circumstantial evidence to be considered with the totality of the evidence to determine whether the only reasonable inference is that the accused is guilty; e) within minutes of the robbery, Mr. Thomas was wearing a green coloured hoodie which was the same colour as the hood the robber is seen wearing in the Select Convenience videos; f) within minutes of the robbery, Mr. Thomas was wearing a black head covering that resembles the one worn by the robber; g) both at the Big Bee and at 20 Emerald Street North, Mr. Thomas is seen with a roll of bills; h) the shoes worn by Mr. Thomas in the post-robbery videos are similar in colour and appearance to the shoes worn by the robber; i) the text messages that Mr. Thomas exchanged with an unknown party in the hours leading up to the robbery provide circumstantial evidence that he was planning to commit a robbery and was contemplating committing that robbery on Queen Street. Even without the text messages, I would have found that the Crown had established Mr. Thomas’s identity as the perpetrator based on the cumulative effect of the evidence of resemblance and the other items of circumstantial evidence. The text messages simply provide one further piece of circumstantial evidence supporting the conviction.
[60] The circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting only one inference-that Mr. Thomas committed the robbery at the Select Convenience, after which he left the store and discarded the “The North Face” hoodie, the white and black glove, and the black bandana and continued on to the Tim Hortons where he also discarded the pants that he wore during the robbery in the dumpster. The only reasonable inference on the totality of the evidence is that the accused is guilty of the Select Convenience robbery and each of the offences pertaining to this robbery.
The Pioneer Gas Robbery on April 8, 2020:
[61] Mr. Thomas is charged with the following offences from April 8, 2020:
(1) Count 6: Robbery of Neel Patel: s. 344 of the Criminal Code; (2) Count 7: Disguise with Intent to Commit an Indictable Offence: s. 351(2) of the Criminal Code; (3) Count 8: Failure to Comply with a Probation Order made on August 15, 2018 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code; and (4) Count 9: Failure to Comply with a Probation Order made on September 5, 2019 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code.
[62] 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 and the other was a black male. The two suspects approached the store clerk and requested change in exchange for a five-dollar bill. [^36] 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. The Crown alleges that Mr. Thomas was the black male who went behind the counter. The perpetrators stole approximately $150.00 and left the store on foot.
[63] Mr. Thomas conceded the authenticity of the video surveillance outside and inside the Pioneer. I reviewed the videos from the Pioneer robbery. I note that these videos are of impressive clarity and quality. However, the black male perpetrator seen in the video clips and stills is at all times concealing the lower part of his face with a mask and is wearing a hood tight to his head which further conceals his head and his face. He is also wearing a head-covering under the hoodie that conceals his forehead. Only the bridge of the black perpetrator’s nose and his eyes are visible.
[64] I am unable to identify Mr. Thomas as the black male perpetrator based on the videos and stills from the Pioneer. I reviewed the video surveillance many times and paused it at various portions. I compared the perpetrator’s appearance with Mr. Thomas’s appearance in court, and in his booking photos of December 5, 2019 and April 29, 2020. Due to the extent of the disguise worn by the black male perpetrator, the most that I can say is that the perpetrator’s eyes, skin colour, height and build are not inconsistent with Mr. Thomas’s eyes, skin colour, height and build. This evidence of resemblance “is entitled to some weight in relation to the ultimate issue of identity”. [^37]
[65] However, “a resemblance, without more, does not amount to an identification”. [^38] There must be some other inculpatory evidence to assist in completion of the prosecution’s proof. In this case, the Crown says that the shoes worn by the black male perpetrator of the Pioneer robbery match the shoes Mr. Thomas was wearing when he was arrested.
[66] I viewed the Pioneer videos many times focusing on the shoes worn by the black male perpetrator. I also stopped the videos at certain points and zoomed in on the shoes. I compared the shoes worn by the perpetrator with the photographs of Mr. Thomas’s shoes which the police seized when he was arrested three weeks after the Pioneer robbery.
[67] I agree with the Crown that the shoes worn by the black male perpetrator resemble those worn by Mr. Thomas when he was arrested; they are white shoes with a dark-coloured (possibly blue) stripe going across the side of them, a dark (possibly blue) portion on the top of the tongue of the shoes, and white shoelaces. I also agree with Defence counsel’s submission that, in certain frames of the videos, there appears to be a dissimilarity - the perpetrator’s shoes look like they have a dark area on the bottom portion of the tongue that does not appear on Mr. Thomas’s shoes.
[68] There is insufficient evidence for me to conclude beyond a reasonable doubt that Mr. Thomas was the black male robber of the Pioneer Gas bar. The cumulative effect of the resemblance of the eyes, skin colour, height, build and the shoes does not lead to a finding that the only reasonable inference to be drawn from the circumstantial evidence, viewed logically and in light of human experience, is that the accused is guilty of the robbery and the offences pertaining to the robbery.
The Busy Bee Mart Robbery on March 7, 2020:
[69] Mr. Thomas is charged with the following offences from March 7, 2020:
(1) Count 10: Robbery of Dingqiug Liao: s. 344 of the Criminal Code; (2) Count 11: Disguise with Intent to Commit an Indictable Offence: s. 351(2) of the Criminal Code; (3) Count 12: Failure to Comply with a Probation Order made on August 15, 2018 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code; and (4) Count 13: Failure to Comply with a Probation Order made on September 5, 2019 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code.
[70] On March 7, 2020, at 5:56 p.m., a black male 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 robber 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 perpetrator fled the store on foot. He stole approximately $120.00.
[71] Mr. Thomas conceded the authenticity of the video surveillance outside and inside the Busy Bee. The video surveillance from the Busy Bee is somewhat grainy; it is not as clear as the surveillance videos from the Select Convenience and the Pioneer. However, the videos are sufficiently clear to make out that the perpetrator was a black male. He wore a white face mask that partially covered his face, and a black hat underneath a hood that covered his head. The perpetrator’s nose and eyes are visible in the video from inside the store.
[72] I viewed the Busy Bee videos and stills many times, particularly the video and stills from inside the store. I also paused the videos at various portions. I compared the perpetrator’s appearance with Mr. Thomas’s appearance in court, and in the booking photos of December 5, 2019 and April 29, 2020. I am unable to identify Mr. Thomas as the perpetrator based on the videos and stills from the Busy Bee.
[73] However, the eyes, skin colour, height and build of the black male perpetrator are not inconsistent with Mr. Thomas’s eyes, skin colour, height and build. The size and shape of the perpetrator’s nose are similar to the size and shape of Mr. Thomas’s nose. However, as I stated above, the Busy Bee videos are of a lesser clarity than the others. Therefore, I was unable to see distinctive features of the perpetrator’s eyes and nose when I zoomed in on clips that showed his face. Again, the evidence of resemblance of the eyes, nose, skin colour, height and build “is entitled to some weight in relation to the ultimate issue of identity”. [^39]
[74] The Crown says that the black jacket and white shoes the perpetrator wore match the jacket and shoes that Mr. Thomas was wearing when he was arrested on April 29, 2020, which provides the other inculpatory evidence necessary to convict Mr. Thomas. When he was arrested, Mr. Thomas was wearing a black jacket with Adidas written on the left chest area and with white stripes down each sleeve. White stripes are visible on the sleeves of the perpetrator’s black jacket in the Busy Bee videos, but due to the lack of clarity of the videos, the word “Adidas” cannot be made out on the videos or stills even when I zoomed in on that area of the jacket. It appears that there may be writing on the perpetrator’s jacket but because of the quality of the video inside the store, it looks more like a white line on the left chest area. The most that I can say is that the black jacket worn by the perpetrator is similar to the jacket Mr. Thomas was wearing when he was arrested on April 29, seven weeks after the robbery.
[75] Although the videos and stills depict the perpetrator wearing white shoes, the videos and stills are not of sufficient quality for me to see any distinctive features of the shoes which would permit me to conclude that the perpetrator’s shoes resemble the shoes worn by Mr. Thomas when he was arrested on April 29.
[76] There is insufficient evidence for me to conclude beyond a reasonable doubt that Mr. Thomas robbed the Busy Bee on March 7, 2020. The cumulative effect of the circumstantial evidence, viewed logically and in light of human experience, does not lead to a finding that the only reasonable inference to be drawn is that the accused is guilty of the robbery and the offences pertaining to the robbery.
CONCLUSION
[77] On Information No. 20-4057, I find Mr. Thomas guilty of the following counts relating to the Select Convenience robbery on April 25, 2020:
Count 1: Robbery of Ronak Patel: s. 344 of the Criminal Code; Count 2: Disguise with Intent to Commit an Indictable Offence: s. 351(2) of the Criminal Code; Count 3: Failure to Comply with a Probation Order made on August 15, 2018 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code; Count 4: Failure to Comply with a Probation Order made on August 15, 2018 (do not possess any weapons): s. 733.1(1) of the Criminal Code; and Count 5: Failure to Comply with a Probation Order made on September 5, 2019 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code.
[78] I find Mr. Thomas not guilty of the remaining counts on the information (Counts 6 through 13) which relate to the Pioneer Gas bar robbery on April 8, 2020 and the Busy Bee robbery on March 7, 2020.
Released: January 11, 2022 Signed: Justice J.P.P. Fiorucci
Footnotes
[^1]: On November 30, 2021, I found Mr. Thomas guilty of Counts 1 through 5 on Information No. 20-4057 relating to the April 25, 2020 robbery of the Select Convenience and not guilty of the remaining counts on the Information. I advised that written reasons would follow. These are my written reasons. [^2]: In my ruling reported at R. v. Thomas, 2021 ONCJ 305; [2021] O.J. No. 2973, I also dismissed the Crown’s application to admit evidence of similar acts that were extrinsic to the charges on Information No. 20-4057. [^3]: R. v. Nikolovski, [1996] 3 S.C.R. 1197 (S.C.C.). [^4]: R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), at para. 39. [^5]: Ibid, at para. 36; R. v. Villaroman, [2016] 1 S.C.R. 1000 (S.C.C.), at para. 28. [^6]: R. v. Nikolovski, supra, at para. 23. [^7]: Ibid, at para. 29. [^8]: R. v. Keating, 2020 ONCA 242, at para. 26. [^9]: Ibid, at para. 25. [^10]: Ibid, at para. 25. [^11]: Ibid, at para. 23. [^12]: Ibid, at para. 26. [^13]: R. v. Villaroman, supra, at para. 30. [^14]: Ibid, at para. 35. [^15]: Ibid, at para. 37. [^16]: Ibid, at para. 37. [^17]: Ibid, at para. 37, citing R. v. Bagshaw, [1972] S.C.R. 2 (S.C.C.), at p. 8. [^18]: Ibid, at para. 38. [^19]: Ibid, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, at paras. 22 and 24-25. [^20]: Ibid, at para. 42. [^21]: Ibid, at para. 42. [^22]: R. v. Uhrig, 2012 ONCA 470, at para. 13. [^23]: R. v. John, 2010 ONSC 6085, at para. 15. [^24]: Ibid, at para. 13. [^25]: Ibid, at para. 15. [^26]: Ibid, at para. 16. [^27]: R. v. McLetchie; R. v. Salik; R. v. A.M., 2019 ONCJ 835. [^28]: During the trial proceedings, while in court, Mr. Thomas wore a mask covering the lower part of his face due to the COVID-19 pandemic. [^29]: R. v. John, supra, at para. 16. [^30]: “The North Face” logo can be seen by zooming in on the video clips which display the front of the sweatshirt. [^31]: On the Select Convenience video surveillance, the only thing that is visible is the green hood underneath the “The North Face” sweatshirt. [^32]: Photographs of the pants seized from the dumpster/bin were made Exhibit 9 on the trial. [^33]: The Cellebrite Extraction report with these text messages is Exhibit 8 on the trial. [^34]: R. v. Bridgman, 2017 ONCA 940, at paras. 67 and 71. [^35]: R. v. J.J., 2021 ONCA 788, at paras. 42 and 56. [^36]: 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. [^37]: R. v. John, supra, at para. 16. [^38]: R. v. Rybak, (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 (Ont. C.A.), at para. 121. [^39]: R. v. John, supra, at para. 16.