Warning

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: March 31, 2022

Between:

HER MAJESTY THE QUEEN

— AND —

E.T., a young person

Before: Justice T. Lipson

Reasons for Judgment released on March 31, 2022

Counsel: Ms. H. Lischak ..................................................................................................... for the Crown Mr. M. Spratt ................................................................................... for the young person, E.T.

Lipson J.:

Reasons for Judgment

[1] E.T., a young person within the meaning of the Youth Criminal Justice Act, entered pleas of not guilty to charges of robbery, possession of a weapon, disguise with intent and possession of a stolen vehicle.

[2] The Crown alleges that around 11:30 p.m. on December 1, 2020, E.T. and another individual robbed Edgard Treminio at gunpoint, taking his cell phone and car keys. The robbery took place in the back parking lot of the residential building at 1170 Fisher Avenue in Ottawa. The Crown further alleges that the two persons then stole Mr. Treminio’s Ford Edge SUV from the parking lot and drove off. Police officers arrested E.T. while he was in the victim’s vehicle on December 8, 2020. E.T. was seated in the front passenger seat of the vehicle at the time of his arrest. He was with another individual who was seated in the driver’s seat.

[3] Identification is the only issue regarding the alleged offences occurring on December 1, 2020. The Crown’s case is entirely circumstantial. There is evidence that one of the two assailants, whom the Crown alleges was E.T., was wearing a black Under Armour jacket had a distinctive white rectangular square covering the chest area of the jacket. There was also a white Under Armour logo over the left breast pocket. Video evidence of the robbery in exhibit 1 shows one of the robbers to be wearing a dark jacket with a white rectangular square.

[4] There is also video evidence of two individuals, joined briefly by another, loitering in front of 1170 Fisher Avenue in the early morning hours of December 1, 2020, approximately 20 hours before the robbery. One of the individuals, whom the Crown alleges is E.T., is wearing a dark jacket with the distinctive rectangular white square across the chest area and what appears to be a logo in the left upper chest area. This individual is also wearing his hood up over his head and has a blue medical mask concealing much of his face.

[5] E.T. was arrested in the stolen vehicle some seven days later on December 8, 2020. He was wearing a red jacket. Underneath the red jacket, E.T. was wearing a black Under Armour jacket with the distinctive white rectangular square and a logo in the left upper chest area.

[6] E.T. is black. He was 17 years of age at the time of the robbery. He has a slim build. His current driver’s licence indicates that he is 5 feet 6 inches.

[7] The victim of the robbery, Mr. Treminio, said there were two assailants. One appeared to be older and taller than the other. He described the younger and shorter of the two robbers as black, 5 feet 1 inch tall, possibly younger than 20, wearing a “coffee colour jacket more towards a dark colour”. He thought the shorter robber was wearing jeans and running shoes. He could not remember the colour of the running shoes. He was unable to provide any details about the shorter robber’s face or even whether he was wearing a mask. Mr. Treminio’s lack of meaningful and detailed description of the younger and shorter robber is completely understandable. He was and continues to be traumatized by the events of December 1, 2020.

[8] As I indicated earlier, there was surveillance video taken several hours before the robbery of individuals loitering in front of the building at 1170 Fisher Avenue. The individual alleged to be E.T. is wearing a blue medical mask and has a hood over his head. He is black, slim and appears to be a young man in his late teens or early twenties. Significantly, he is wearing a dark jacket with a rectangular white square that is similar to that worn by the younger of the two robbers. It is not possible to say that this is the same design or make as the jacket depicted in the video of the robbery.

[9] The other identification witness was Mr. Marcier who was the building superintendent at 1170 Fisher. Avenue. He observed the two men seen in exhibit 2 loitering in front of the building several hours before the robbery. Mr. Marcier said that he wasn’t close enough to the men to see their facial features or even whether they were wearing masks. The shorter of the two was black, skinny and younger looking than the other. Mr. Marcier was unable to provide evidence regarding the younger one’s height.

[10] Mr. Marcier testified that he looked at the surveillance video of the robbery in the company of the police. He said he was able to zoom into and enlarge the images. He was certain that the jacket worn by the shorter robber was the same as the one worn by one of the individuals loitering earlier in the front of the building. The court was not provided with the zoomed-in images this witness claimed he saw which permitted him to identify the jacket. This fact limits the ability of the court to independently assess the value of that identification evidence.

[11] Constable Hobbs looked at the two surveillance videos with this witness, but her notes did not reflect that she or Mr. Marcier were able to zoom in or enlarge the robbery video. However, she was also of the opinion that the jacket worn by the loiterer and the robber to be of the same make and style.

[12] Upon a careful review of the evidence of the witnesses and the surveillance video as well as the stills from the videos, I am satisfied that the jacket worn by the robber was very similar, if not the same, as the jacket worn by one of the individuals loitering in the front of the building in the early morning hours of December 1, 2020. The jacket is also very similar to the one worn by E.T. at the time of his arrest on December 8, 2020.

[13] The central issue to be resolved is whether it was E.T. who was wearing that jacket on the night of the robbery.

[14] The Crown asks the court to find that the robber who was wearing the same distinctive jacket that E.T. was wearing at the time of his arrest in the victim’s vehicle is the accused.

[15] The Crown has presented a circumstantial case that rests on a general resemblance of E.T. to one of the robbers, E.T.’s possession of a jacket on December 8 that is very similar in appearance to the one worn by one of the robbers on December 1, and E.T.’s presence in the victim’s stolen car on December 8.

[16] In assessing the Crown’s case, I am guided by the principles set out by Justice Cromwell in R. v. Villaroman, 2016 SCC 33 which is the leading authority on the use of circumstantial evidence and its relationship to proof beyond a reasonable doubt. The case affirms that an inference of guilt drawn from circumstantial evidence must be the only inference that the evidence permits. The Crown is required to negative any inferences that are based on logic and experience applied to the evidence or the absence of evidence, not on speculation. Alternative inferences must be reasonable, not just possible.

[17] The jacket worn by E.T. at the time of his arrest appears to be similar to the jacket worn by the male loitering in the front of the building on December 1, 2020. However, it is not possible to conclude that the robber captured on video in the back and the individual seen at the front of the building at 1170 Fisher Avenue are in fact the same person. I am unable to find on the evidence that the person in the front of the building was wearing the same jacket as what the robber was wearing. As well, even though the person in the front of the building was wearing a jacket very similar to what the accused was wearing on the night of the arrest, there is no evidence about the manufacturing, sale, distribution and, most importantly, the uniqueness of this jacket. There is nothing unique about the jacket itself such as defect, mark or stain or any indication that it belonged to the accused. It is also true, as submitted by defence counsel, that clothing, unlike distinctive facial features, can be borrowed or worn by different people and I note that there was a seven-day gap between the time of the robbery and the arrest of the accused. Had there been evidence of E.T. wearing this jacket immediately before or after the robbery, I would likely come to a different conclusion. After all, it is reasonably possible that prior to his arrest, the accused may have borrowed the jacket, or someone had borrowed his jacket a week earlier. The evidence does not eliminate a reasonable inference that it was not E.T. who was one of the robbers.

[18] The evidence concerning the jacket really comes down to this: When he was arrested, E.T. was wearing a jacket with similarities to the one worn by the robber seven days earlier. With respect to the robber’s description, it can be said that E.T.’s general appearance regarding his colour, height and body type is consistent with the description of the robber given by the victim. It is also generally consistent with the description provided by Mr. Marcier and Constable Hobbs of the loiterer in front of the building on December 1. However there are no particular details of identification relating to either the robber or the loiterer in the evidence that would allow these general similarities to be afforded great weight.

[19] The fact that E.T. was wearing a similar jacket when he was found in the victim’s stolen vehicle on December 8, 2020 makes it more probable that he was one of the robbers on December 1. In my assessment of the totality of the evidence, it is more likely than not that E.T. was one of the two individuals who robbed Mr. Treminio. However, there is a lack of detail in the description of the robber compared to E.T. The deficiencies in the identification evidence do not permit me to find that the record conclusively establishes to the requisite standard that E.T. was one of the robbers.

[20] In summary, this is a case where the prosecution has established likely or probable guilt. In a criminal case, the strength of the evidence must go much further than establishing probable guilt. It must establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

[21] Counts 2-4 are therefore dismissed.

[22] Count 1 alleges that on December 8, 2020, E.T. was in possession of Mr. Treminio’s stolen vehicle. Of course, had the accused been found guilty of the robbery of December 1, 2020, it would follow that is guilty of possession of the vehicle stolen during the robbery. However, as I have found, the evidence does not establish beyond a reasonable doubt that E.T. was one of the robbers.

[23] The evidence on the possession charge is that two persons, one of whom was the accused, entered the stolen vehicle on December 8, 2020. E.T. sat in the passenger seat. There is no evidence that he had the keys and there was no property in his possession or in the vehicle connecting him to the vehicle. There was also nothing obvious about the vehicle that would indicate it was stolen. There is no connection in the evidence between the stolen licence plates and E.T. There is no evidence that it was E.T. who on December 8 unlocked the car doors with a remote device. There is no evidence that E.T. had control over the vehicle and, most importantly, that he had knowledge that the SUV had been stolen.

[24] In the result, count 1 must also be dismissed.

Released: March 31, 2022 Justice T. Lipson