COURT FILE NO.: 11-40000239-0000

DATE: 20120313

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTHONY CLARKE

Defendant

David Wright, for the Crown

Maurice Mattis, for the Defendant

HEARD: February 21-23 and 27-29, 2012

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The accused Anthony Clarke (hereinafter, Clarke) is charged in a one count Indictment with robbery. He is alleged to be an aider and abettor who stood by, guarding the front door of a No Frills grocery store in Toronto, while the principal entered and robbed the store at closing time. The robbery is captured on video tape and the principal can be seen, armed with a handgun which he uses to threaten a store employee. That employee takes the principal to the store office and hands over cash and coins from the safe. Once again, this is all captured on various store surveillance cameras. The robber fled from the scene, leaving a trail of coins behind him.

[2] The only issue in the case is identification. The principal has not been prosecuted. The Crown seeks to prove that Clarke is the secondary party who stood near the front door. The Crown’s case rests on circumstantial evidence, including the following: first, Clarke’s appearance is said to “strongly resemble” the appearance of the robber who can be seen standing near the front door in one of the surveillance videos; second, Clarke is alleged to have made an incriminating oral utterance, upon arrest, that is recorded in a police notebook; and third, Clarke’s fingerprint was found on the wrapping of a roll of duct tape found in a knapsack in a car that is said to be connected, by inference, to the robbery.

[3] The trial was conducted, without a jury, over a six day period. The defence challenged the admissibility of the accused’s oral utterance, allegedly made at the time of his arrest. A voir dire was held during the trial. Issues of voluntariness, as well as s. 10(b) and s. 10(a) Charter of Rights issues, were raised. In addition, the accused testified on the voir dire and denied making the notebook oral utterance attributed to him.

[4] No defence evidence was called on the trial proper. I reserved judgment, after hearing closing submissions on both the voir dire and on the merits. These are my Reasons for Judgment, both on the voir dire and on the trial.

B. FACTS

(i) The robbery

[5] The facts relating to the robbery are not in dispute. The last two employees to leave the No Frills store, which is located near Jane Street and Lawrence Avenue in Toronto, both testified. In addition, the store’s various surveillance videos were made exhibits. It was about 9:15 p.m., on May 16, 2009, when the two employees were exiting the store by the front door. That door gives onto a large parking lot where very few cars were parked at this time of night.

[6] A black male approached the two female employees and asked about applying for a job. This was a ruse as he quickly grabbed one of the employees and forced her inside the store at gunpoint. The other store employee escaped and ran towards her car in the parking lot. The man with the handgun yelled “go get her” and his accomplice, who was standing nearby, chased the second store employee. However, this second robber quickly gave up the chase and returned to the front of the store. He was also a black male.

[7] The video surveillance tapes show that the first store employee went upstairs to the store’s office, together with the first robber who continued to brandish a handgun. She then gave him $4,660 in cash and about $3,000 in coins. The coins were of all denominations and they were wrapped in rolls. The robber put the cash in his pockets and put the rolls of coins on a tray and ran out of the store. The store employee then pressed the hold-up alarm.

[8] The second robber, who had given up chasing the second store employee in the parking lot, returned to the front door in the meantime and briefly entered the No Frills store. He then turned and exited the store. It is at this point that the image of his face was captured on one of the video surveillance cameras. It is unclear where he went, after exiting the store.

[9] The second store employee, after succeeding in running away through the parking lot, flagged down a bus on Jane Street and had the bus driver call the police. She looked back at the No Frills store and saw a man dressed all in black come out of the store and flee to the east. He went through a pedestrian gate leading from the parking lot to a residential area. The police arrived quickly and the second store employee directed them to this residential area.

[10] The man dressed in black was alone when he exited the store and fled to the east. It can be inferred that this was the principal who was armed with a handgun and who had carried out the actus reus of the robbery. The principal robber’s accomplice was dressed in a grey hoody that was black on the inside and he was also wearing black gloves. There is no evidence as to where the accomplice went, after briefly chasing the second store employee, except that he briefly returned to the store and then exited on his own, as noted above. This all happened before the principal robber emerged from the store, with the stolen money, and then ran on his own to the east.

[11] Neither store employee got a good look at the two robbers. The first robber, dressed in black, pulled up some kind of face covering upon entering the store. The second robber, dressed in a grey hoody, was never close to either of the two store employees. As a result, no identification evidence was elicited from the two store employees.

(ii) The police investigation

[12] The robber in black, who fled to the east, left a trail of coins behind him. The police followed the trail of coins through the pedestrian gate leading from the parking lot to a residential street. The trail of coins continued for a short distance down this street and ended at an intersection. The two residential streets that meet at the intersection are Thurodale and Martini.

[13] The police conducted a canvas of the neighbourhood. One of the residents, who testified at trial, had noticed a black Chevrolet Impala SS with shiny chrome custom rims and mag wheels, earlier in the evening at around 7:30 p.m. It was parked near the intersection of Thurodale and Martini. It also had dark tinted windows. It was quite a distinctive or noticeable car. The witness recognized the model and he and his wife commented on it.

[14] As a result of this information, the police began searching for the car. About three hours after the robbery, at 12:18 a.m. on May 17, 2009, the police observed a black Chevrolet Impala SS with shiny chrome rims and dark tinted windows. The driver, a black male, was filling the car with gas at a service station located at Jane Street and Trethewey Drive in Toronto. The police shone a flashlight into the backseat area and observed rolls of coins and loose coins. At this point, the driver of the vehicle, one Gary Williams, was arrested.

[15] A search of the car revealed a number of items of interest. In the backseat area, aside from the loose coins and rolls of coins, there was a fairly distinctive checkered knapsack. It contained the following items: a grey hoody that was black on the inside; three black knitted gloves; a partial ski mask; and an apparently new roll of duct tape, together with its plastic wrapper which had been removed. Loose in the backseat area, the police found a pair of grey track pants, a black tee shirt with a white tee shirt under it, and one black stocking. In the trunk of the car, the police found a blue bandana, a black hoody, and a large black duffel bag. Inside the duffel bag there was a large quantity of coins in rolls. The police later counted the money and there was $975 in sixty rolls of coins in different denominations.

[16] The driver of the car, Gary Williams, was alone when he was arrested. He was wearing a leather jacket, a black tee shirt, blue jeans, and a baseball cap. The police found a blue binder and various job applications in the backseat area of the car. They also found other documents such as conviction notices for parking tickets. The various documents in the car were in the name of Eric Asare as well as one document in the name of Gary Williams. There was no evidence at trial as to the ownership or licensing of the car. Although he was arrested, Williams was never prosecuted.

[17] The only fingerprint that the police lifted from the items found in the car was the accused Clarke’s. It was found on the plastic wrapper that had been removed from the roll of duct tape that was inside the checkered knapsack on the backseat. The identification officers reached their conclusion about Clarke’s fingerprint on June 6, 2009, that is, about three weeks after the robbery. The Hold-Up Squad officers, who were in charge of the case, were advised of the fingerprint match that same day. It was to take almost six more months before they arrested Clarke.

(iii) The arrest of the accused Clarke

[18] The accused Clarke was not arrested until December 1, 2009, over six months after the robbery. Officers at 31 Division had obtained a warrant for his arrest in relation to a domestic assault. They telephoned his mother who advised that he was living in the London area but that she would contact him and arrange his surrender. He attended at the station with his mother, the day after the 31 Division officers had called her, and he was taken into custody on the domestic assault charge.

[19] It was 9:20 p.m. on December 1, 2009 when Clarke was arrested for the domestic assault and was advised of his right to counsel. He was then paraded before the booking Sergeant where he was again advised of his right to counsel and told that he could have reasonable use of the telephone. He told the arresting officer, P.C. Curtis Quesnelle, the name of his lawyer although he could not spell her last name. P.C. Quesnelle understood that Clarke wished to speak to his lawyer and he advised Clarke that he would do his best to contact her. He placed Clarke in an interview room in the Family Services Unit, searched him, and then checked the Law Society web site in order to find Clarke’s lawyer. He found a name that was similar to the one Clarke had given him. He asked Clarke if she was his lawyer and Clarke confirmed that she was. P.C. Quesnelle then phoned the lawyer and left a message, advising her that Clarke was in custody on a domestic assault charge at 31 Division, that he was being held for a bail hearing at Finch Court the next morning, and that she could call him at the 31 Division phone number, which he left for her on the message.

[20] It was now around 9:40 p.m. and P.C. Quesnelle did not expect the lawyer to call back at that time of night. Accordingly, he also called duty counsel at around 9:40 to 9:50 p.m. and left a further message with the same information as he had left for Clarke’s lawyer. P.C. Quesnelle prepared the paperwork on the domestic assault and did not question Clarke about it. He had not received a call back from duty counsel, or from Clarke’s lawyer, by the time his shift ended at 10:00 p.m.

[21] When preparing Clarke’s case for court, P.C. Quesnelle found a bulletin on the police data base advising that the Hold-Up Squad had an interest in Clarke. He phoned Detective Nicol at 9:50 p.m. and was advised that Hold-Up Squad officers would attend at 31 Division.

[22] Before ending his shift, P.C. Quesnelle took Clarke to Interview Room C in the Criminal Investigation Branch to await the arrival of the Hold-Up Squad officers. It was about 9:55 p.m. There are no facilities for video-taping in this room. P.C. Quesnelle ended his shift and left 31 Division station at 10:00 p.m.

[23] The Record of Arrest for Clarke’s domestic assault charge indicates that a duty counsel named Johnston called in to 31 Division at 10:39 p.m. on December 1, 2009. It also indicates that an officer identified as “8955 LD” took the call. P.C. Laurie Dorrington testified that this was her badge number and that she was on duty at 31 Division that night. She had no recollection and no note in her memo book of taking a call for Clarke from duty counsel on the night in question. She would have made a note of it, if she had taken the call. She explained that, on occasion, one officer will take a call from duty counsel and will ask another officer who is working on the computer to enter the fact of the call on the Record of Arrest.

[24] The two Hold-Up Squad officers, Sgt. Richard Harris and Detective Michael Mullen, arrived at 31 Division at 11:45 p.m. on December 1, 2009. They knew that Clarke had been arrested by 31 Division officers and was charged with a domestic assault. They obtained the names of the arresting officers, upon arrival at 31 Division, but they did not inquire as to the status of Clarke’s s. 10(b) Charter rights in relation to the 31 Division charge, that is, they did not determine whether Clarke had requested or received a call from counsel. They intended to arrest him for the No Frills robbery and they knew that they would have to give him his s. 10(b) Charter rights in relation to that more serious charge. Accordingly, they thought that it mattered little whether Clarke had already spoken to a lawyer in relation to the domestic assault charge.

[25] Officers Harris and Mullen entered Interview Room C at 12:04 a.m. and introduced themselves to Clarke. It is a small room with a table and chair bolted to the floor. Clarke was seated and the officers were standing. Det. Mullen asked the questions and made notes. Sgt. Harris simply observed. Det. Mullen’s notes of the interview, which both officers adopted in their testimony, are as follows:

Q. Anthony, you are going to be charged with robbery while armed with a firearm.

A. What robbery?

The officers agreed that they had not advised Clarke of the date or place at which the robbery occurred. In response to Clarke’s question, Det. Mullen produced a still surveillance photograph of the second robber inside the front door area of the No Frills store. The interview continued as follows:

A. Okay. That’s me but if that’s all you got I’m not saying anything.

Q. Anthony, before you say anything else I want to explain something.

At this point, Det. Mullen read Clarke the standard s. 10(b) Charter caution concerning his right to counsel. The interview continued as follows:

Q. Do you understand?

A. Yes.

Q. Do you wish to call a lawyer?

A. No. I want to know what else you got.

At this point, Det. Mullen read Clarke the two standard cautions concerning the right to remain silent and concerning contact with other officers and each time confirmed with Clarke that he understood. The interview then continued as follows:

Q. Anthony, we would like to talk to you on video about the robbery.

A. It looks like you guys got nothing. I have nothing else to say.

The officers then left the room at 12:15 a.m. Sgt. Harris reviewed Det. Mullen’s notes, was satisfied with their accuracy, and initialed them.

[26] Both officers were aware of the video interview room that was available at 31 Division but their normal practice was not to use it for their initial contact with an arrestee. Their practice was to introduce themselves, arrest the suspect, explain the reasons for the arrest, give the arrestee his right to counsel, and then ask him if he wished to give a video-taped statement. Many accused, in their experience, do not want to give statements on the record on video-tape. The officers agreed that video-taping is the best way to take a statement and had Clarke denied the charge, or been willing to make a statement, they would have taken him to the video interview room. Everything that had occurred off-camera would then have been reviewed on-camera, at the beginning of the video interview.

[27] The officers agreed that Clarke’s admission, when shown the surveillance still, was significant. They had no explanation as to why they did not ask Clarke to review Det. Mullen’s notes of the interview and to have him confirm their accuracy by initialing the notes. They agreed that they often ask witnesses to initial notebook statements for accuracy and they ask accused to read and sign written statements. They did not regard Clarke’s oral utterance as a “statement”. It was simply part of a “conversation”. They agreed that the utterance was made before they had given Clarke any cautions, including any s. 10(b) Charter caution. They also agreed that it was elicited by showing him the video surveillance still.

[28] Det. Mullen explained why he did not give Clarke any particulars of the robbery, such as the date and place, when arresting him for “robbery while armed with a firearm”. This was because he wanted to stay away from the evidence, as much as possible, prior to cautioning Clarke. Det. Mullen had no intention of interviewing Clarke, or of taking a statement, before he had cautioned Clarke, Nevertheless, Det. Mullen agreed that the surveillance still was evidence. It was real evidence from the crime scene. He agreed that showing the surveillance still to Clarke had a tendency to elicit a response, as opposed to simply providing an answer to Clarke’s question. Det. Mullen had not intended to show Clarke the still photograph, except at a later point if he was taking a formal statement from Clarke. He, nevertheless, believed it was appropriate to show Clarke this piece of real evidence, after Clarke asked “what robbery” and prior to cautioning him, because it showed Clarke the jeopardy that he was in.

[29] The accused Clarke testified on the voir dire. He was 29 years old at the time of trial. He had finished high school and had gone to trade school. He was working as a welder at a car parts plant, outside of Stratford, while awaiting his trial. He had a criminal record for possession of stolen goods and for breach of probation. Both offences were committed in 2002.

[30] Clarke did not disagree with P.C. Quesnelle’s evidence on any significant point. Indeed, he agreed that this officer made a real effort to contact his lawyer and told him that a message had been left for his lawyer. He denied ever receiving a call back from duty counsel and he did not really remember any discussion about duty counsel, as he had asked to speak to his own lawyer. Clarke acknowledged being told that Hold-Up Squad officers were coming to see him.

[31] Clarke’s account of events, after the Hold-Up Squad officers arrived, was completely at variance with their account. He testified that they came in the room, asked him where he was on the date of the robbery, showed him the surveillance still and asked, “isn’t this you?” He replied, “no”. They left the room. Sgt. Harris then returned to the room alone, asked him some personal questions, advised him that they were more interested in Gary Williams than in him, and asked him to implicate Gary Williams in the robbery, possibly in return for reduced charges. He replied, “I can’t help you, me and Gary Williams are not friends like that,” meaning that he and Williams were not involved in committing criminal offences together. When Clarke was unable to assist the police, Det. Mullen entered the room and became aggressive. Clarke alleged that Det. Mullen slapped him on the face, punched him in the chest and told him to “stop lying” and to “tell the truth”. Clarke continued to deny any involvement in the robbery and the officers left again. They eventually returned and told him that he would be charged with robbery. They never advised him of his right to counsel.

[32] Clarke was not injured or in pain and he made no complaints to the booking officer when he was taken to the cells. Police photos were taken of him the next morning and they do not show any marks from slaps on his cheeks.

C. LAW

(i) The admissibility of the oral notebook utterance

[33] The accused Clarke’s account of his interview with the two Hold-Up Squad officers, in substance, alleges that they fabricated the admission recorded in Det. Mullen’s notebook. Clarke also alleges various promises, threats and violence by the officers. However, none of these inducements produced any incriminating statements. Clarke’s account is that he consistently denied being the man who is seen in the surveillance still during the No Frills robbery.

[34] I am satisfied that the issues summarized above relate to the accuracy and authenticity of the oral utterances recorded in Det. Mullen’s notebook, and not to their voluntariness. Accordingly, they are issues of weight to be resolved at trial and not issues of common law admissibility to be resolved on the voir dire. In other words, if the trier of fact was to determine at trial that the oral utterances were actually made by Clarke, in the manner that the Hold-Up Squad officers allege, then they were clearly voluntary statements. Nothing in the officers’ accounts, if they are believed, would raise an issue concerning common law voluntariness. See: R. v. Park (1981), 1981 CanLII 56 (SCC), 59 C.C.C. (2d) 385 at 395 (S.C.C.); R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont.C.A.), aff’d (1987), 1987 CanLII 69 (SCC), 35 C.C.C. (3d) 287 (S.C.C.); R. v. Menenzes (2001), 2001 CanLII 28426 (ON SC), 48 C.R. (5th) 163 (Ont. S.C.J.); R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68 at paras. 56-65 (Ont. S.C.J.).

[35] The more significant issue raised in relation to the admissibility of the oral utterances is whether they were obtained in violation of sections 10(a) and 10(b) of the Charter of Rights. Clarke testified that he was never advised of his s. 10(b) rights by the Hold-Up Squad officers. The officers conceded that they did not provide Clarke with any s. 10(b) caution until after they had showed him the surveillance still which elicited the incriminating response, “okay, that’s me”.

[36] The context for the s. 10(b) issue in this case is the change in the accused’s jeopardy that occurred when the Hold-Up Squad officers arrived at 31 Division. Clarke was already charged and detained in relation to a domestic assault allegation. His s. 10(a) and s. 10(b) rights had been complied with, in relation to that charge. It is significant that Clarke invoked his s. 10(b) Charter rights, when arrested at 9:20 p.m. on December 1st, 2009 on that minor charge. P. C. Quesnelle, who was a credible witness, agreed that Clarke wanted to speak to his lawyer and so the officer left a message for her at 9:40 p.m. There is no dispute that she had not yet returned the call when the Hold-Up Squad officers arrived at 31 Division at 11:45 p.m. that night. There is conflicting evidence as to whether Clarke had received a call from duty counsel at 10:39 p.m.

[37] In any event, it matters not whether Clarke had succeeded in speaking to counsel in relation to the domestic assault charge. The Hold-Up Squad officers intended to arrest and charge him with the No Frills robbery and they did so at 12:04 a.m. on December 2, 2009. At this point, Clarke was detained on a much more serious charge and the officers were obliged to “immediately” caution him, pursuant to sections 10(a) and 10(b) of the Charter, in relation to that robbery.

[38] The law on this point is clear. In R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at paras. 47-8 (S.C.C.), McLachlin J, as she then was, summarized the relevant principles, speaking on behalf of a unanimous Court on this point:

…there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning. This is because the accused’s decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces.

…the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

Also see: R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) 1(S.C.C.); R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.); R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 118 C.C.C (3d) 17 (Ont.C.A.).

[39] There was some argument as to whether the Hold-Up Squad officers complied with s. 10(a) of the Charter when they advised Clarke simply that he was arrested for “robbery while armed with a firearm.” Given that the particular robbery had occurred over six months ago, it should not be surprising that the accused would ask “what robbery?” Some authorities, in some circumstances, have not required the police to specify the time or place or to provide any particulars of the offence, when advising the accused of “the reasons” for arrest pursuant to s.10(a) of the Charter. See: R. v. Jackson (2005), 2005 ABCA 430, 204 C.C.C (3d) 127 at para. 25 (Alta. C.A.); R. v. Williamson, 2011 ONSC 6584 at paras. 132-159; R. v. Tallarico, [2009] O.J. No. 4881 at paras. 20-22 (Ont. S.C.J.).

[40] The test for compliance with s. 10(a) of the Charter focuses on “the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used.” See: R. v. Evans, supra at para. 35. The Court in R. v. Evans, supra at para.31, held that there are two purposes underlying s. 10(a). The first purpose is to facilitate the individual’s right to resist an unlawful arrest, a right that always existed at common law. Morden J.A., as he then was, (Howland C.J.O. and Martin J.A. concurring) described this s. 10(a) purpose in R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 at 424 (Ont. C.A.):

Functional considerations support this analysis. The interest protected by paras. (a) and (b) are not the same. With respect to para. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8. It is, accordingly, essential that he be informed promptly or immediately of the reasons.

The second purpose underlying s. 10(a) is that it helps to inform the detainee’s decision concerning the exercise of s. 10(b) rights. Wilson J. described this purpose in R. v. Black, supra at p. 12, speaking on behalf of a unanimous Court:

Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.

Also see: R. v. Latimer (1997), 1997 CanLII 405 (SCC), 112 C.C.C. (3d) 193 at para. 28 (S.C.C.); R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C (3d) 541 at paras. 16-22 (Ont. C.A.).

[41] In applying these principles, the two leading Supreme Court of Canada authorities on s. 10(a) have not focused on whether the police used the formal or technical charging language of a particular Criminal Code offence. Rather, the Court in both Evans and in Latimer asked whether the accused would have understood the substance of the incident or matter for which he was being detained. In R. v. Evans, supra at paras. 36-7, McLachlin J., as she then was, concluded as follows:

The appellant’s response to the officer’s statement that, while he had originally been arrested on marijuana charges, things had now taken “quite a change”, indicates that the appellant was aware that the focus of the questioning had changed and that he was then being questioned with respect to the killings. It might, therefore, be argued that he was given the facts relevant to determining whether he should continue to submit to the detention. Nor can any failure to comply with s. 10(b) be attributed to failure to advise the accused of the reasons why his detention and questioning was continuing.

These considerations suggest that the requirements of s. 10(a) were met in the case at bar.

In R. v. Latimer, supra at paras. 30-1, Lamer C.J.C. gave the unanimous judgment of the Court and concluded as follows:

On the facts of this case, I have no doubt that the trial judge was right in finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained for investigation into that death.

[42] The references in Evans to “the killings” and to “the facts relevant” to deciding whether to submit to an arrest both suggest that the police must make some general reference to the incident that they are investigating. The reference in Latimer to “that death”, namely, the death of the accused’s daughter, similarly suggests that the broad facts of the incident under investigation must be understood by the accused. This is consistent with the two purposes that underlie s. 10(a) of the Charter. It is also consistent with Doherty J.A.’s observation concerning s.10(a) in R. v. Sawatsky, supra at paras. 28 and 29, where he stated:

“Jeopardy” in this context includes the detained person’s risk of self-incrimination. That risk cannot be measured without knowledge of the reason for the detention and the subject matter of the police inquiries.

In most cases, disclosure of the reason for detention will also reveal the subject-matter about which the police wish to question or otherwise investigate the detained person. Compliance with s. 10(a) of the Charter will, in those cases, provide the necessary information as to both the reason for the detention and the subject-matter of the investigation.

[43] In the case at bar, the police simply used the technical charging language of a Criminal Code offence when they referred to “robbery while armed with a firearm”. This is precisely what Evans and Latimer have held to be unnecessary. Given that the incident in question had occurred over six months ago, I am inclined to the view that the police did not advise Clarke of “the facts relevant” to the function of s. 10(a), as McLachlin J. put it in Evans, or of “the subject matter” of their inquiries, as Doherty J. A. put it in Sawatsky. There is nothing to indicate that Clarke would reasonably have known or understood the incident or matter that he was now detained for, unlike the accused in Evans and in Latimer.

[44] It is unnecessary to decide definitively whether there was a violation of s. 10(a) of the Charter as I am satisfied that a violation of s. 10(b) immediately followed upon the accused’s arrest for robbery. By simply producing the surveillance still to Clarke, the officers were not answering his question. Unless one assumes that Clarke is guilty of the robbery, the photograph simply shows the dark image of a black male in a hoody against a pale nondescript background. This image does not advise him that he is being detained and is under investigation in relation to a robbery on May 16, 2009 at a No Frills store on Jane Street in Toronto.

[45] Rather, the true effect of producing the photograph to Clarke was to display an important piece of potentially incriminating real evidence and to implicitly seek his response to that evidence. Det. Mullen conceded that the act of presenting this evidence to Clarke had the tendency or effect of eliciting a response. For all practical purposes, the police were questioning Clarke about important evidence in the case, after arresting him and prior to advising him of his s. 10(b) Charter rights. This was a clear and obvious violation of well known legal principles concerning s. 10(b) rights.

[46] For over 20 years, the case law has held that s. 10(b) imposes three distinct obligations on the police. They were summarized in R. v. Evans, supra at para.42, a case that was decided in 1991:

The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Black, supra. In Black, the rider was added that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is suspended.

See also: R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.). It was recently clarified in R. v. Suberu, supra at para 42, that these duties crystallize “immediately upon detention”. Suberu was released on July 17, 2009, some four and a half months prior to the arrest in this case. It was an important and well publicized decision of the Court.

[47] There is no suggestion that the Hold-Up Squad officers in this case did not understand their duty to “immediately” advise Clarke of his s. 10(b) Charter rights, upon arrest for the robbery and prior to “eliciting evidence from the detainee”. I am satisfied that the officers violated Clarke’s well known s.10 (b) rights.

[48] In applying the s. 24(2) Charter principles set out in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), all three lines of inquiry concerning admissibility of the oral utterance tend to favour its exclusion. In terms of the first inquiry, the state conduct was serious. The officers were violating long established and well known Charter precepts. This was not a technical or inadvertent violation of some lesser known aspect of the Charter, nor was it a close judgment call made during a fast moving encounter on the street. See: R. v. Grant, supra at paras. 74-5 and 133; R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C (3d) 4 at paras. 23-4 (Ont. C.A.)

[49] The second line of inquiry also favours exclusion as the impact of the s. 10(b) violation on Clarke’s Charter-protected interests was significant. The utterance in question was not spontaneous or inevitable. In this regard, see: R. v. W. (J.) (1996), 1996 CanLII 1938 (ON CA), 109 C.C.C. (3d) 506 at 510-511 (Ont. C.A.). Clarke had already invoked his right to counsel when charged earlier in the evening with a minor offence. It can be inferred that he would have done the same, when faced with the more serious charge of robbery, but for the device of using the still photograph to elicit a response. As the Court put it in Grant, surpa at para. 95:

The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual’s protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b). The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.

[50] Finally, the third line of inquiry also favours exclusion. In assessing the public interest in a trial on the merits, the reliability and the importance of the particular piece of evidence are the most important factors. The oral utterance in this case is undoubtedly important to the Crown’s proof but it is far from reliable. This form of notebook statement, or “verbals” as they are known in the United Kingdom, have always been approached with caution by the courts. It is the most unreliable way in which to record a statement and, in this case, it is alleged to be fabricated. The officers could easily have asked the accused to review Det. Mullen’s note of the statement and to amend it or initial it for accuracy. In the United Kingdom, this procedure is now mandatory. Alternatively, and given the significance of Clarke’s alleged notebook admission, the officers could have taken him into the 31 Division video interview room and reviewed their notebook record of the statement with him on videotape, in order to obtain a reliable record of his response. None of this was done and I am satisfied that there are live issues as to whether the statement was ever made. The unreliable record of the oral utterance is, therefore, a factor favouring exclusion. See: R. v. Grant, supra at paras. 81-3 and 97; R. v. Learning, supra at paras. 54 and 119-190.

[51] Balancing the three lines of inquiry, they all favour exclusion and, as the Court stated in Grant, supra at paras. 89-98, statements obtained in violation of the Charter will generally or presumptively be excluded:

In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

[52] For all these reasons, the Charter application is allowed and the oral utterance allegedly made by Clarke is excluded from evidence pursuant to s. 24(2).

(ii) The video surveillance still and the rule in Nikolovski

[53] I am satisfied that the black male depicted in the video surveillance still, near the front door of the No Frills store on the night in question, is a party to the robbery. He generally resembles the man who chased the second store employee through the parking lot and who then returned to the front of the store. He also entered the store at the time when the principal robber was upstairs in the store office, stealing cash and coins from the safe. It can be reliably inferred that he was keeping a lookout at the front door.

[54] The Crown relies on the rule in R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.) and asks the Court to compare the image of the man in the video surveillance still with the accused Clarke, both in a contemporaneous police “mug shot” and today in the court room. The Crown submits that it can be inferred that they are one and the same man or, at least, that there is a “strong resemblance”. The defence concedes some general similarities between the accused Clarke and the man in the still photograph, such as their complexions and their lips and mouth area, but submits that there is no proper basis for a positive identification.

[55] I am not satisfied that a positive identification can be made of the accused Clarke, based on the surveillance still alone. The photograph is not of the best quality, indeed, parts of the image are grainy. In addition, the hood of the man’s hoody is pulled up over his head, covering his hair and forehead and casting a shadow over the sides of his face. The features that are visible and that are relied on by the Crown, are the nose, eyes, lips, facial hair, and jaw line. These features are simply not clear enough and not distinctive enough to allow the trier of fact to safely make a positive identification.

[56] However, I agree that there is a resemblance between Clarke and the party to the robbery depicted in the video surveillance still. There are no dissimilar features, that would exclude Clarke, and there are a number of similarities such as skin colour, facial hair, the general shape of the lips and nose and, perhaps, the eyes.

[57] 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 this element of the offence beyond reasonable doubt. See: R. v. Brown (2009), 2009 ONCA 563, 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.); R. v. John, 2010 ONSC 6085, [2010] O.J. No. 4738 at para. 15 (S.C.J.).

[58] Whether evidence of a resemblance does or does not complete the Crown’s proof on the issue of identification, of course, depends on the strength of the other circumstantial evidence in relation to that issue. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 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 prosecutor’s proof.

Also see: R. v. Boucher (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.)

[59] I now turn to a consideration of the other circumstantial evidence relating to the issue of identification.

(iii) The fingerprint evidence

[60] The only other evidence relating to the issue of identification is the fingerprint found on the duct tape wrapper. It will be recalled that the plastic wrapper was found inside a knapsack on the backseat of the Chevrolet Impala, some three hours after the robbery.

[61] I am satisfied that the Chevrolet Impala was the getaway car used by the principal in the robbery. There is compelling circumstantial evidence linking the car to the robbery: it is a distinctive kind of car that was seen parked at the intersection of Thurodale and Martini, prior to the robbery; the principal robber fled from the No Frills store and ran directly to the intersection of Thurodale and Martini; the trail of coins that this robber left behind ended at that intersection; the same distinctive kind of car was found by the police three hours after the robbery; it contained almost $1,000 in rolls of coins of various denominations; the rolls of coins are very similar to the ones stolen in the robbery. In all these circumstances, I am satisfied that this particular car was used in the robbery by the principal.

[62] The connection between the robbery and the knapsack containing the duct tape and the plastic wrapper, found in the backseat of the car, is not as strong. First, it is unclear from the evidence whether the second robber (who is alleged to be Clarke) ever escaped from the crime scene in this car. The video surveillance evidence and the eye witness testimony from the second store employee do not indicate that he fled to the east, together with the first robber. Second, the distinctive checkered knapsack was not connected to the robbery. Neither the video surveillance evidence nor the eye witness evidence of the two store employees placed the knapsack at the scene of the crime. Third, the duct tape and the duct tape wrapper were not connected to the robbery. There is no suggestion that duct tape was ever used or carried during the robbery. Furthermore, duct tape has many innocent uses, both in households and in various kinds of employment. Fourth, no coins or cash from the robbery were found in the knapsack.

[63] There is some circumstantial evidence connecting the knapsack to the robbery. First, the knapsack was found in the back seat of the getaway car. However, items not connected to the robbery were also found in the car such as the grey sweatpants in the backseat area and the blue binder and various job applications also found in the backseat area. In other words, the sole function of the car and of the items found in the car was not their use in the robbery. Second, some of the other items found in the knapsack can arguably be connected to the robbery such as the grey hoody and the black gloves. However, these items are not so distinctive as to infer that they were necessarily the same grey hoody and the same black gloves that the second robber can be seen wearing in the surveillance still. Third, the car was stopped and searched fairly soon after the robbery. The fact that the plastic duct tape wrapper was still in the knapsack with the duct tape, rather than discarded as garbage, suggests that the wrapper may have been removed from the duct tape fairly recently. This temporal connection, however, is not strong as it depends on certain assumptions about human behaviour and how people normally dispose of garbage. Furthermore, there was a three hour gap between the robbery and the finding of the duct tape wrapper in the knapsack in the car. As a result, there was some opportunity, unrelated to the robbery, for the duct tape and its wrapper to find their way into the car and the knapsack.

[64] It can be seen that the circumstantial connection between the fingerprint evidence and the robbery is not strong. In particular, the inference that Clarke left his fingerprint on the duct tape wrapper at a time when he was involved in planning and preparing for the robbery, or when escaping from the robbery, is not strong. The case is somewhat similar to R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), where the accused’s fingerprint was found on a pizza box that was undoubtedly used in a home invasion robbery. The robbers needed a ruse to get in the house and one of them stood at the front door and knocked, while holding the pizza box, pretending to be a pizza delivery man. Doherty J.A., speaking for the Court, explained the true weight of this piece of evidence (supra at paras. 19-21 and 24):

The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.

In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.

The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box. Put somewhat differently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.

The trial judge’s finding that the fingerprint evidence could bear the full weight of the Crown’s burden flowed at least in part from his erroneous premise that fingerprint evidence was “highly inculpatory evidence”. The trial judge should have started from the premise that the probative value of the fingerprint evidence depended upon whether there was other evidence capable of permitting a reasonable inference as to when the fingerprint was placed on the pizza box.

[65] The difference between Mars and the case at bar is that there is some evidence, albeit not strong, inferring that Clarke’s fingerprint could have been placed on the duct tape wrapper at some time connected to the robbery, as summarized above at para. 63. Furthermore, there is some other incriminating evidence relevant to the issue of identity aside from the fingerprint evidence, namely, the evidence of a resemblance between Clarke and the second robber. See: R. v. Samuels, [2009] O.J. No. 4177 (C.A.); R. v. McLetchie, [2011] O.J. No. 1244 at para.63 (S.C.J.).

[66] As Doherty J.A. put it in R. v. Mars, supra at para. 19, “the probative value of fingerprint evidence depends on the totality of the evidence”. I turn now to a consideration of this final issue.

(iv) The totality of the evidence on the identification issue

[67] The final issue in the case is whether the evidence of a resemblance between the second robber and Clarke, combined with the evidence of Clarke’s fingerprint on the duct tape wrapper, satisfies the Crown’s burden of proof on the issue of identification. As with any circumstantial evidence, these individual items of evidence may seem weak and insufficient, when viewed in isolation. However, the proper approach is to consider their combined weight, when viewed together. The Crown’s burden of proof in relation to an essential element of the offence, like identification, applies to the totality of the evidence and not to individual items of evidence. See: R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.); R. v. Côté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 at 76 (S.C.C.); R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.)

[68] To satisfy the Crown’s burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference from the primary facts. Therefore, in the context of the identification issue in the case at bar, the Crown cannot succeed unless the only reasonable inference from the facts is that the accused Clarke was the second robber. See: R. v. Cooper (1978), 1977 CanLII 11 (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 1985 CanLII 3545 (ON CA), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.).

[69] It is extremely suspicious that Clarke both resembles the second robber and his fingerprint was found on the duct tape wrapper inside the knapsack on the backseat of the getaway car. However, I cannot say that the only reasonable inference from these primary facts is that Clarke must be the second robber. There are alternative reasonable hypotheses as to how and when Clarke’s fingerprint came to be on the duct tape wrapper in the knapsack in the backseat of the car. The evidence of a resemblance between Clarke and the second robber needs much stronger circumstantial support, aside from the equivocal inference provided by the fingerprint, before there could be a proper basis for a conviction.

[70] In short, the Crown has satisfied me to a degree of strong suspicion that Clarke is the second robber but not to the degree of proof beyond reasonable doubt. That standard, of course, is closer to certainty than it is to probability. I simply cannot be sure that Clarke is the second robber. See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.).

D. CONCLUSION

[71] For all the above reasons, Anthony Clarke is not guilty on the one count of robbery that is charged in the Indictment.

[72] I would like to thank both counsel for the thorough, efficient, and professional way in which they conducted this trial.

M.A. Code J.

Released: March 13, 2012

COURT FILE NO.: 11-40000239-0000

DATE: 20120313

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANTHONY CLARKE

REASONS FOR JUDGMENT

Code J.

Released: March 13, 2012