Publication Warning

WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY — (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2024 05 13 COURT FILE No.: Toronto 4810-998-23-48122052

BETWEEN:

HIS MAJESTY THE KING

— AND —

JAMES ARRON STEWART

Before: Justice Christine Mainville

Preliminary Inquiry heard on: May 3, 6, 7, 8 and 9, 2024 Reasons on Similar Fact Application released on: May 13, 2024

Counsel: Emma Haydon and Pardeep Kaur................................................. counsel for the Crown Michael Wong.................................................................................. counsel for the accused

Mainville J.:

[1] Mr. Stewart is charged with having committed six bank robberies and with related offences, including having disguised himself with the intent to commit an indictable offence on those same occasions.

[2] The primary issue in this preliminary inquiry is identity. The Crown brought an application to adduce similar fact evidence as between the different counts, in support of its evidence of identity on each count.

[3] There is direct evidence linking Mr. Stewart to two of the robberies. The defence concedes that the last four of the six robberies, including those two, are sufficiently similar to each other and concedes the Crown’s application on the counts relating to those robberies. It argues, however, that the two first robberies in time are dissimilar to the others and that the Crown’s application ought to be dismissed in respect of those counts.

Test for Similar Fact Evidence

[4] The parties agree that I must apply the test set out in R. v. Handy, 2002 SCC 56 to determine the admissibility of the count-to-count similar fact evidence in this preliminary inquiry. This test was aptly summarized as follows in R. v. MacCormack, 2009 ONCA 72, at paras. 48 and ff.:

Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus falls upon the prosecutor to satisfy the trial judge, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Arp, [1998] 3 S.C.R. 339, at paras. 42 and 51.

Probative value depends upon the nexus established between the evidence of similar acts and the offence that the evidence is offered to prove. The degree of similarity required to permit the introduction of evidence of similar acts is a function of the issues in the case, the purpose for which the evidence of similar acts is being offered and the other evidence adduced at trial: Handy at paras. 76, 78 and 79; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 48.

Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp at para. 43.

In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45; Handy at para. 81.

[5] The Crown in this case argues that all six robberies present several significant similarities that, by their cumulative effect, tip the balance in favour of admission.

Facts

[6] The robberies themselves are not in dispute. They all occurred at different bank locations as follows:

• November 23, 2022: Royal Bank of Canada (RBC) branch at 5968 Bathurst St, Toronto
• November 28, 2022: Scotiabank branch at 628 Sheppard Ave W., Toronto
• January 16, 2023: Bank of Montreal (BMO) branch at 1859 Leslie St, Toronto
• January 25, 2023: Canadian Imperial Bank of Commerce (CIBC) branch at 800 Steeles Ave W., Toronto
• February 8, 2023: CIBC branch at 3315 Bayview Ave., Toronto
• February 13, 2023: Toronto Dominion (TD) Canada Trust, at 6209 Bathurst St, Toronto

[7] In all instances, a single white male entered the bank to commit the robberies. The male did so by walking into the bank, waiting in line for his turn, attending to the counter to engage with a teller, slipping a note to the teller that advised them in some manner that this was a robbery, having a limited exchange of words with the teller, receiving the cash from the teller that the teller had direct access to, taking that cash in hand and generally placing it in the pocket(s) of his hoodie, and walking out of the bank.

[8] The first two robberies are distinct from the last four in that they involved a somewhat different modus operandi. In those two instances, the suspect entered carrying a reusable plastic bag and left it in the waiting area before lining up for the teller. The note passed to the teller then referenced the bag and implied that it could be made to explode or be used as a weapon in some way. The bag was ultimately left behind and, on both occasions, it contained a note stating “Dirty Laundry” with a smiley face.

[9] On the last four occasions, the suspect did not bring in a bag or reference a potential explosion in any way. Instead, he held what appeared to be a small firearm in his hand and made threatening gestures towards the tellers with the weapon, all the while covering it with his hands and endeavouring to hide it from others in the vicinity.

[10] The defence argues that the distinct modus operandi between the two sets of robberies, amongst other dissimilarities, should lead to a dismissal of the Crown’s similar fact application as it relates to the first set of robberies.

Analysis

[11] The admissibility inquiry is case-specific and begins with a focus on the similarity between the acts themselves. It engages several considerations including proximity in time and place; similarity in detail and circumstances; number of occurrences; any distinctive feature(s) unifying the various incidents; intervening events; and any other factor that tends to support or rebut the underlying unity of the similar acts: MacCormack, at paras. 52-53.

[12] Despite the differing modus operandi as between the first and second set of robberies, there are several similarities between these robberies:

• All robberies were committed within a 3-month window and within a relatively limited radius in Toronto and in some general proximity to the accused’s residence.
• All robberies targeted banks. The bank branches all had direct outside access, as opposed to being inside a mall or other building with only indoor access.
• All involved a white male of a bulkier build, with the same body structure and similar-looking upper face, which was generally described by the witnesses but can also more accurately be seen on the video surveillance. In most cases, the man was described as white and on the fairer side – this can also be seen on video.
• Many tellers described the man as having blue eyes and no accent, but in the case of the first robbery, there is no description of the eyes, and in the second robbery, the teller thought that the suspect maybe had a European or Russian accent, but then indicated he might not be recalling correctly.
• The style of clothing is very similar in each instance. In each case, the male wears a dark toque on his head, with a hoodie placed over the toque. In each case, it is a grey hoodie although the one worn in the first two robberies is not the exact same one as is worn in the later robberies. The male also wears gloves on each occasion as well as a mask covering the bottom half of his face – generally a medical-style mask.
• In each instance, the suspect quietly comes into the bank, does not immediately approach the teller but rather patiently waits his turn in line along with other customers, and generally keeps his hands in the front pockets of his hoodie and his head down as he waits his turn.
• The male then passes a note to the teller, written in ink and all-cap lettering. In many instances, words are underlined or doubly underlined. The lettering is generally similar.
• The money is obtained under threat of some action.
• The note relays a need for the teller to act normally or be calm so as to not raise suspicion from others around.
• In each case, the money taken or asked for is from the teller, and limited to what the teller has at their counter (with the exception of the last robbery, which is not in contention here).
• In many instances, the suspect demands larger denomination bills, or bills as opposed to coins. The demand targets cash that is directly available to the teller.
• Talking is kept to a minimum but is driven by the teller’s conduct or response to the note.
• The suspect does not have any bag or implement to put the money in. He generally amasses it in his hands and puts it in his pockets.
• Once the suspect has the money, he promptly walks out. In all instances, the time spent in the bank is very limited, but impacted by the time spent waiting in line at the outset.
• In every instance, the suspect left the note behind.

[13] While I agree with the defence that there is not much of a distinctive pattern when it comes to the proximity in time and place of the offences, the relative proximity in both time and place remain important considerations to be able to assert that this could be the same individual. Had these robberies been in entirely disparate locations and timeframes, one could better question the links otherwise being made.

[14] The defence further argues that many of the above considerations are largely generic similarities that might apply to any number of bank robberies. It points, for instance, to the fact of wearing a disguise and of slipping a note to a bank teller.

[15] In support of its argument, it cites R. v. Johnson, 2011 ONSC 195, at para. 135, which emphasized the point that “generic similarities commonly seen in the commission of the alleged crime(s)” or “facts at the vague end of the spectrum” should not be relied upon to found admissibility.

[16] Certainly, some of the factors referenced above do not carry much weight in the circumstances of this case, such as the fact that banks were targeted and that the money was obtained under threat. Bank robberies are not uncommon and certainly some level of threat is typically used by the robber to achieve his goal of getting money from the bank.

[17] Still, the way in which these robberies were committed is not so generic as to apply to nearly every bank robbery or even to many of them. Bank robberies can be and are committed in a number of different ways. In some instances, the robber operates with others. In many instances, he or they make no secret of the robbery – customers and bank employees might be threatened and even harmed. In some, the vault or safes are targeted, and larger amounts of money is sought. In others, no note might be used – only words uttered. The method of communication and message communicated might have a number of distinct features. The robber’s attire might often seek to disguise identity, but the clothing and attire worn can vary in numerous ways.

[18] As stated by the Court of Appeal in MacCormack, at para. 65:

It is worth remembering that the search for similarities in the manner in which allegedly similar acts were committed is a question of degree. Like some other crimes, bank robbery may not show much diversity or distinctiveness, at least in the sense of a trademark or signature. Yet, the authorities allow the accumulation of significant similarities to satisfy the threshold for admissibility. Often, the probative force of an accumulation of circumstances exceeds the sum of its individual parts.

[19] In that case, which is in many ways quite similar to the present one, the trial judge was satisfied that the following similarities were sufficient to allow the evidence to go to identity on all counts, and this assessment was upheld on appeal:

In this case, the acts took place over an interval of one month. There were four occurrences. Each of the premises was a branch of the same bank, CIBC. Each was located in a strip mall, easily accessible from a controlled access highway. The bandit directly approached the teller without hesitation and demanded money. In three instances, the demand was for larger denomination bills. The bandit made no gestures, spoke in a low voice and said nothing but the words of demand he uttered. In every instance, the bank had few, if any, other customers, a circumstance apparently visible from outside the branch by a casual glance through the glass entrance doors and adjacent windows of the bank. The four branches are located in reasonable proximity to each other, three in Burlington, the fourth in Mississauga: MacCormack, at para. 63.

[20] Of some significance in MacCormack was the fact that video surveillance was available demonstrating that the acts occurred and in a particular manner. As such, there was credible evidence of the similar acts which favoured reception: see paras. 54 and 64.

[21] This is also the case here. I am able to directly assess the similarities between the different robberies, as it relates to the suspect’s appearance and the manner in which the robberies were committed and unfolded. The videos do allow me to observe a significant degree of similarity between each occurrence.

[22] And indeed, the accumulation of similarities among the several incidents in this case are more significant than the ones in MacCormack and in my view are sufficient to establish the objective improbability of coincidence, despite some dissimilarities.

[23] A particularly distinctive feature of this case is the notes used, which I am also able to directly compare given that they were all left behind.

[24] All the notes slipped to the tellers are handwritten in ink and use all-cap letters. They all convey a need to remain calm or to act in a way that does not raise suspicion. Many words are underlined once and some, twice. And while I am cautious, in accordance with R. v. Flynn, 2010 ONCA 424, at para. 18, about making handwriting comparisons given the lack of expert evidence on the point, I can observe many resemblances in the handwriting of the various notes.

[25] It is true that, as pointed out by counsel, there is a clear distinction between the note left in the first robbery and the other five. While also written in rounded all-cap letters, the handwriting seems somewhat different compared to the other notes. The writing is also much smaller and tidier than in the other cases. In addition, the note is far more detailed and does not use the word “robbery” or the phrase “be calm”. (Though it does state “smile and nod”, which implies remaining calm.) It is much less explicit than the other notes, in terms of it being a robbery.

[26] However, in my assessment, there are important similarities between the second robbery note and the second set of robberies, which assists in tying them all together.

[27] Indeed, the note left behind on November 28, 2022, is written in red ink like the ones left behind on February 8 and 13, 2023. The three notes are very similar in other respects as well. All start with the word “ROBBERY”, and in each case that word is underlined once or twice. All three notes also contain the statement “BE CALM” or “STAY CALM”, as does the one from January 25, 2023. The November 28, 2022 note also bears some resemblance to the January 16, 2023 note, including the mention to “be calm”.

[28] In these ways, the note from the second robbery is strikingly similar to the latter set of robberies.

[29] This is significant because the second robbery is of course also very similar to the first one, in its modus operandi.

[30] Not only are many aspects of those two robberies significantly similar, but they can also be said to include a signature by the robber.

[31] Specifically, the “Dirty Laundry” with a smiley face note left behind in a reusable plastic bag on each occasion strikes me as a form of signature-mark left behind by the robber. The similarities between these first two robberies are so great that one could certainly infer that they were committed by the same person – the similarities defy the possibility of coincidence.

[32] Thus, even though the first robbery is more dissimilar to the last four, the fact that the second robbery is sufficiently similar to the four serves to link them all together.

[33] Based on the MacCormack analysis, I would in any event have been satisfied that there were enough significant similarities as between all six robberies to meet the threshold for admissibility of the evidence as between counts, despite the dissimilarities pointed to by the defence.

[34] While there is a significant difference between the use of a purported firearm and not resorting to such a weapon, in both sets of robberies, there is an underlying threat should the teller not comply with the demand for money, and indeed a threat relating to some form of weapon or another. And both threats are made without the robber wanting to attract too much attention to himself.

[35] In any event, in addition to the above-cited similarities, the suspect in all instances takes the folded note from his hoodie pocket before placing it on the counter. And in the first three robberies, his note also cites a concern about alarms: in the first, “ NO ALARMS ” was underlined; in the second, the note stated, “YOU PRESS ALARM I MAKE BAG GO BOOM !”; and in the third, the note read “NO FUCKING ALARMS ”, with the word “alarms” again being underlined.

[36] I am satisfied that, cumulatively, all six incidents bear significant markers of similarity such that the evidence of each can be admitted for the purpose of proving identity on all six counts. Any moral or reasoning prejudice that could result from the admission of this evidence is significantly lessened by the fact that this is a preliminary inquiry and my role within that context.

[37] On balance, the probative value of the evidence is significant and is not undermined by the dissimilarities that do exist. Nor is the prejudicial effect of sufficient force to outweigh the probative value of the evidence.

[38] The Crown is thus permitted to rely on the similar identification evidence as between counts.

Released: May 13, 2024 Signed: Justice C. Mainville