COURT FILE NO.: CR-12-40000267-0000
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DAISHA LEWIS
Defendant
Tracey Vogel, for the Crown
Christopher R. Murphy, for the Defendant
HEARD: February 7, 8, 11, 12, 13 and 14, 2010
pardu j.
[1] The defendant, Daisha Lewis, is charged with robbery of two convenience stores, while using a firearm, and with having her face masked with intent to commit an indictable offence on both occasions. Her counsel concedes that in association with others, and knowing that a robbery was intended, she entered the stores with her face covered, thereby making her a party to the offence of robbery, however, his position is that she did so under duress and further, in any event, that she did not know that one of the principals had a firearm in his possession.
[2] I begin with a review of the evidence, beginning with that of the victims.
[3] Chris Huyng, tobacco company sales representative, went to a convenience store at 2 Branstone Road. He was at the counter discussing sales with the proprietor, Ming Fang Zhai around 8 in the morning on June 23, 2010 when a black male walked in and asked for a “Century Sam”, a variety of cigar. Huyng didn’t pay too much attention to him and assumed that the male continued further into the store. The next thing he knew, the male had gone behind the counter and was holding Ming, with his right arm wrapped around the front of her body, and a gun in his right hand. He was wearing a bandana covering the lower half of his face. The male told him to get down. He froze, and another three people walked into the store. They were all wearing bandanas and hoodies too. One of them pressed on his shoulder to encourage him to get down. The man with the gun was still with Ming, and the gun was obvious. The gunman had nothing covering his face when he first came in the store, but when he went behind the counter he had a blue bandana with white designs on it covering the lower half of his face. He was wearing a hoodie. Each of the other three who came in together was also wearing a black hoodie and a bandana on their face. He could not tell if any of the other three was a female.
[4] The gunman told him many times to get down. While he was down hands were going through his pockets, took his cell phone, wallet and took off his shoes. He was directed with kicks to his body to crawl behind the counter. He heard Ming moaning, she didn’t understand the instructions given to her in English by the gunman. He saw the action of the gunman’s arm striking Ming and heard her scream. He saw blood on her face. He heard the cash register falling to the floor and saw people putting cigarettes and money in a pack. The gunman ripped the telephone cord from the wall. He was ordered to stand up. A gold chain was ripped from his neck by a lighter skinned one of the three who had entered and who was shorter than the gunman. The gunman was the tallest of the group and had dark skin. The gunman punched him in the face and knocked him to the ground just before leaving. He heard the footsteps of each of the four persons leaving the store together. He was not knocked unconscious, but does not remember any of the four persons running back into the store to get chocolate. He does not know much about guns, and from his point of view, the gun could have been a real one or a replica. He doesn’t recall which way the fourth person was facing when in the store; his best recollection is that the three other than the gunman were all wearing bandanas. It is possible that the last person in the store was wearing sunglasses and a white baseball cap, and that he or she pulled up a hoodie to conceal the lower half of their face, but his best recollection is that all three who entered the store after the gunman wore blue bandanas over their faces. The Crown’s position is that the defendant was the fourth and last robber to enter the store and was standing by the doorway.
Ming Fang Zhai
[5] She is one of the proprietors of the convenience store. She was behind the counter talking to Chris Huygn when she says a black male came into the store and asked for DuMaurier cigarettes. She turned to her right to get cigarettes, and saw four persons rapidly entering the store. The front door to the store was latched open. As she was getting the cigarettes she was hit on the head with a hard object and there was a gun held to the left side of her body. She was dragged to the left. She said the gunman was not the same person who asked for cigarettes and that neither the man who asked for cigarettes nor the gunman wore anything to cover his face. Two of the persons she saw enter the store jumped over the counter to get money and cigarettes and searched for other things. Two were wearing bandanas covering the lower half of their faces, one by the door and one who jumped over the counter to take things. One of the persons who entered stood by the door, watching the door. That person was facing inside and blocked exit from the store. That person was wearing a bandana and tried to pull it up a bit. The gunman told her to put her hands on the counter, and hit her hard on the hand with the gun. The robbers were having difficulty opening the cash register. She went to help them and the gunman hit her hard in the face. She screamed each time she was hit. The gun was obvious to her. He told her to put her head in the refrigerator case, and she did so briefly. She saw Chris Huyng dragged to the area behind the counter. She did not see him struck. He was in a fetal position on the floor. The person who had been standing by the door, and one other came back into the store after leaving and grabbed ice cream and chocolate. She thought each of the five persons who entered the store was a male. She saw the person who was standing by the door when they first came into the store, and as she was dragged to the left. Again the Crown submits that the defendant was the last of the robbers who entered the store and that she stood inside, facing the store.
[6] Yu Zang is proprietor of the Winona market. He opened his store at about 10 to 8 on June 23, 2010. The door to the store was closed but unlocked. He was behind the counter when a male entered the store and went to the far corner of the store. The male asked for help several times, and when he finally went to the back corner of the store to help him the male took out a gun and pointed it at him. He was a black skinned male wearing a hoodie. The male held the gun in his right hand and dragged him to the floor by the shoulder. He searched his pockets and took his wallet and keys. He then heard other voices, and running footsteps, things falling to the floor and the sounds of coins and cigarettes being taken. He only saw the gunman. He does not recall hearing a female voice. As the robbers left, he could see the backs of two or three or perhaps three or four people leaving, including the gunman. He could hear his wife screaming outside as the robbers were about to leave the store. He could see that one of the robbers leaving was white.
[7] Wen Jen Wang ran the Winona market with her husband. On June 23, 2010 she was approaching her store while driving and she saw a vehicle parked close to the store and saw three black males get out of the car. They were all wearing dark clothing, and one was wearing a blue bandana with a white flower pattern on the lower half of his face. All wore hoodies, and pulled up the hoods over their heads before they went into the store. All three went quickly towards the store entrance. As she passed the car from which they had exited, she saw a white person sitting in the driver’s seat. She rushed to the store, fearing trouble. The front door of the store was latched open. She saw two of the people at the counter taking coins. She took just two or three steps into the store and saw two black men with hoods up and black bandanas on their faces behind the counter, at the cash register. She immediately left the store and called for help. Soon three of the intruders rushed out and she lost sight of them. Her main concern was for the welfare of her husband.
[8] The stolen vehicle used by the robbers was soon stopped. Items taken in both robberies were found in the car. Five people including the accused fled from the vehicle into a ravine but were soon apprehended. One of them, Andrew McLennan, was wearing an electronic ankle bracelet required as a condition of parole. It tracked his whereabouts at three minute intervals and places him in the area where both robberies took place. A firearm wrapped in a blue bandana with a white pattern was found in the vehicle, and is acknowledged to have been a firearm for the purposes of the charge of robbery “while using a firearm” although it is not acknowledged that this was the firearm used in the robberies.
Daisha Lewis
[9] On June 23, 2010 Daisha Lewis was living with her aunt at 25 Gabian Way. She planned to attend a meeting with her probation officer at 9:00 a.m., but before that wanted to drop off some clothes for a friend, Nathalie Charles. Nathalie was in an open custody facility and Daisha thought she could not go there herself since she was on probation. She called a friend, Gina, who was going to deliver the clothes to Nathalie. They arranged to meet by the Fairbanks swimming pool, off Dufferin Street. Daisha testified that she left the house to meet Gina there before her appointment. She was wearing jeans, a short sleeved tee shirt and a Chicago White Sox baseball hat. She walked for two to three minutes to Eglinton to catch a bus, and was standing at the stop when her friend, Leonard Charles, drove up at around 7:00 a.m. and offered her a ride to Dufferin and Eglinton. She walked south to the swimming pool but Gina was not there. Gina finally showed up, and Daisha asked if she could use her phone. Daisha herself did not have a cell phone. Gina invited Daisha to accompany her to her house and use the telephone there. Once she had access to a telephone, she called Marcus Charles and asked him for a favour. He said he was in the Dufferin area, and after some exchange of pleasantries, she asked him if he would come and get her and give her a ride to the probation office. He responded that he was dealing with something at that moment, but she asked him if he would pick her up at the swimming pool to give her a ride and he agreed.
[10] She left the clothes with Gina and headed back to the swimming pool. After some confusion she found her way there. She waited on the south side of the street to the south of the pool, Keywest Avenue for about three to five minutes. She saw a car turn from Dufferin to Keywest, continue past her, do a U-turn then pull up beside her. Christopher Bramley was driving. Kevin Woodley, also known as Ziggy was in the front passenger seat. She had never seen this silver car before. Marcus Charles was in the back seat behind Woodley. Daisha testified that she opened the back door, behind the driver, and said hi to the others when she got in the vehicle. Marcus didn’t respond and she asked him where were his manners. He said for her to hold on, he was on the phone. They started to drive towards the Dufferin subway station. Marcus tapped Christopher on the shoulder and told him to go pick up Andrew McLennan, also known as “Insane”. They went along side streets until stopping by some bushes and Insane walked to the car. Ziggy got out of the front seat and Insane sat there, and Ziggy came into the back seat. As soon as Insane got into the car he complained “there’s too many mens inside the veeks,” meaning that there were too many people in the car. Marcus said to Insane “that’s soft, that’s soft, we are just going to drop her off at probation,” meaning that it was not a big deal that Daisha was in the vehicle. Marcus was now seated in the middle of the back seat, Daisha behind the driver, and Woodley behind Insane.
[11] By now the car was on the same block as the store at 2 Branstone. Insane responded that they couldn’t drop Daisha at probation but had to “go deal with this right now.” The car was moving slowly, with the music playing. Insane directed Christopher to pull over at a spot by the store. Ziggy and Insane have their heads together by the headrest and are talking. She could not hear what they were saying. Ziggy then tells her that “Insane wants you to come on the eat with us,” meaning he wanted her to go on a mission to do something bad with them. She said no, “what eat?” and Ziggy responded, “you don’t know? We’re going to go rob this store right here.” Daisha said she responded, “na fuck that, I’m not involved.” Ziggy told Insane what she had said. Insane turned down the music volume and looked at her indicating “fuck that. What do you mean you are not coming inside? You’re going to come fucking inside, and you are going to stay by the fucking door and you are going to keep six,” meaning that she was to keep watch during the robbery. Insane was yelling at her, “like he’s pissed like, like don’t say no to me.” Daisha said she responded “na you guys are hot. I’m not doing it.” She testified that Insane told her that “you have to go inside because this guy (meaning Christopher) has to keep inside the car and drive for us.” She responded “No, I don’t want to.” Insane got mad and told her if you don’t go, then you “dunna”. This meant that he would beat her up or shoot her or that other serious consequences would follow if she did not comply with his demands. She took the threat seriously and thought it meant that she would either be shot or beat up so badly she would end up in the hospital.
[12] She asked him, “what do you mean, dunna?” and he responded, “you already fucking know what that means. Enough said.” Insane reached into a bag and pulled out a black hoodie and threw it at her and told her to put it on. He then ripped sunglasses off Christopher’s face and threw them at her and told her to put them on. He said “when you go inside, look down and keep low. And if you hear anybody come to the door, or if you see anybody coming to the door, whistle.” Daisha said she put the hoodie on because she didn’t want him doing anything to her. She was scared and nervous.
[13] They stopped by the store. Insane got out of the vehicle first. She was fixing the strings on the hoodie around her face so that her face was hidden from below the nose. Ziggy told her not to worry, it would just be in and out. She didn’t think anything bad would happen to the people working in the store. She didn’t run because she was scared, and that Insane would call his brother to deal with her if she ran away. She came out the driver’s side rear door, and Marcus and Woodley came out the rear passenger door. Bramley does not leave the car. The door to the store was open. Ziggy and Marcus went in ahead of her. She herself stepped into the store for a few inches, just enough to turn around and come back outside. She was fiddling with a metal patterned fence beside the steps to the store. She heard noises from inside the store of coins and papers. She was scared and didn’t want to be there. She went a bit further from the door to look but came back because she was scared Insane would be mad at her if she went too far out. She was there for about two to three minutes.
[14] She heard a big bang that made her jump. She didn’t want to look inside the store for fear Insane would yell at her for doing so when she was supposed to be looking out in front. Somebody said let’s go, she collided with one of the party. She rushed back into the store and grabbed some chocolates. She said she did so because she didn’t want Insane yelling at her for not getting anything. She said she was scared and didn’t know what to do. She didn’t know what she had grabbed until she got back into the car. Everyone took the same seats in the car. Insane was cussing about the lady, saying that he had told her a simple thing and it seemed like she was deaf. He said, “I had to give her a spa because she just doesn’t listen.” That meant a blow to the face. Insane was joking about this and the other males in the car were laughing about it. They stopped by a garage. Insane told them all to empty their pockets. He got angry when he saw the chocolates, saying, “are you fucking retarded? Why the fuck would you get chocolates? What is this going to do for you? You are not supposed to get chocolates, you are supposed to get cigarettes, lottery tickets, and money.” Insane was unhappy with the haul from the robbery and said we “have to go do a next one.” The goods taken from the robbery were put in the trunk. They drove along some back streets and Insane said, “okay we are going, we are going to eat this store.” (meaning commit a robbery there)
[15] They stopped by the store, and Insane told her “make sure this time you don’t take no stupid chocolates. Go get lottery tickets. You’re in charge of lottery tickets. I’m going to call you guys when I’m inside to let you guys know when to come inside.”
[16] Ziggy got the call. Insane was in the store. She didn’t run away because she was scared Insane would do something to her because of what he said earlier. This time all three came out the rear passenger door. She paused to tie her shoe laces on the front step. She went inside the store straight down an aisle where she thought the counter with the lottery tickets would be. When she realized she had gone in the wrong direction she saw Insane in the corner of the store. She could only see him from his shoulders up. He had his hood up and was looking down. She cannot see the owner of the store. Marcus and Ziggy were behind the counter. She heard a sound, and everyone started running. She did not take any lottery tickets. She has her hood on over her baseball cap and covering the lower part of her face, and sunglasses on. She was never wearing a bandana.
[17] The all got into the car, and Insane became concerned when they saw a police car behind them. Insane had told them all to take off their hoodies and other disguises as soon as they got back in the car. When Insane thought police might be following them, Insane told them to put everything they touched in their pockets. She was holding onto her hat and glasses. Insane leaned back in his seat, reach to his waist area and throw something in the back. She was in shock when she realized it was a gun. Ziggy asked her, “you didn’t know we had it on us?” She responded, “no, does it look like I know?” and started panicking even more. Kevin Woodely picked it up and asked Marcus to hold it. He refused. Kevin then asked her to hold it and she refused, saying “are you fucking crazy?” Kevin took a bandana out of his back pocket and wrapped the gun in it. She did not see where it ended up after that point. Police began pursuing the vehicle. Insane told them to make sure to cover their faces so police could not see them. He told them that if anything happened they were to keep running and not to stop. Insane told Christophe to “drive real good and try to get us out of this sticky situation.” Christopher responded that he was trying. Daisha testified that at this point she was scared she would die in the car in a crash. Christopher drove into a dead end street ending at a ravine. Insane was screaming at him and calling him a “dumb ass” for having done so. They all ran from the vehicle and she was arrested just going down the ravine, within ten seconds or so.
[18] She had had no dealings with any of the others earlier that day, or in the preceding days except to call Marcus for a ride. She knew nothing about earlier robberies committed by Insane and Woodley on June 18 and 22.
Analysis
[19] I begin with observations as to the credibility and reliability of the evidence. There is no doubt that the victims were traumatized by these robberies, and no doubt at all that the robberies occurred. The circumstances of their observations make it unsafe to rely on their evidence for precise details of the locations, numbers of the robbers, their individual actions and what they were wearing. These robberies took place in a very short time, in traumatic circumstances, with a sudden invasion of strangers, with an opportunity at times for only a fleeting glance at a participant. (See for example R. v. Jack, (2013) ONCA 80) The frailty of this evidence is illustrated by major differences between two persons present for the same event.
[20] For example, at the Branstone robbery, Huyng testified that a man asked for “Century Sam” cigars went around the counter and then held his right arm around Ming Fang Zhai with a gun in his right hand, and that he was wearing a bandana covering the lower half of his face. Ms. Zhai testified that a person different from one who asked for DuMaurier cigarettes came behind the counter and held a gun to her left side, and that he was not masked. Zhai did not see Huyng punched in the face, although she was right there and he was knocked to the ground. Huyng did not hear or see any of the robbers come back into the store after they left the first time to get ice cream and chocolates.
[21] Similarly Mr. Zang saw two or three, or perhaps three or four robbers leave the store and that one of them was white. His wife saw only three black males. It is common ground that four black skinned persons entered the store. Zhang had almost no opportunity to see anyone other than McLennan, the organizer of the robbery who forced him to the floor. His wife saw three of the participants getting out of the car, go into the store, saw two males behind the counter with hoods up and their faces covered, and saw three persons rush out again a short time later.
[22] Daisha Lewis is now 23 years old. She reads at a grade four level. Her counsel describes her as having intellectual limitations, and childlike in some respects in the manner in which she gave her evidence. I agree with those observations. I find that she gave her evidence in a generally credible manner. At times it was as if she was reliving the experiences she described. There was no suggestion of artifice or dissembling in the manner in which she gave her evidence. Her evidence was detailed and it is unlikely that it was invented by her. The Crown submits that her evidence was objectively improbable, and contradicted by the evidence of the victims. I do not accept those arguments.
[23] I begin with the observation that a reasonable person would be frightened of Andrew McLennan, nicknamed “Insane”. He was convicted of robbery in 2004 and in 2005. He was convicted of robbery with a firearm and another robbery in 2008 for which he was sentenced to 39 months in addition to 33 months pre-sentence custody. His violent treatment of Ming Fang Zhai was brutal and unnecessary. He committed two robberies within days of the robberies now before the court, and again brutally assaulted a helpless store clerk who was no threat to him. He frequented the same community as Daisha Lewis and he had a reputation for violence. As Daisha Lewis testified, he was nicknamed “Insane” because he behaved like a “psycho”. She herself had seen him rough up another person and use a gun to do so. She had seen him urge someone to physically “crush” another in the course of a fight. He openly assaulted a woman who did not welcome his overtures. Insane’s brother John gave a gun to someone so they could kill someone who was bullying another. While these events predate McLennan’s long incarceration they underscore the aptness of his nickname.
[24] What is also noteworthy is that violent retribution might follow seemingly trivial events in the community that Daisha Lewis knew. Just two weeks or so before the robberies, Daisha Lewis went to a friend’s house. Andrew McLennan was there. A young person named Kyle, who Daisha described as being not right in the head said something that insulted another person named Sheroni. As a result, someone was shot and killed in retribution for the insult, later on in the same day, long after the sting of the original “disrespect” would have faded.
[25] In Daisha Lewis’s young life, killing someone is not a theoretical possibility. Some six family members and friends have been shot and killed to date.
[26] Daisha Lewis herself did not adopt a criminal lifestyle. She has had a difficult upbringing. Her mother was evicted when she became ill and could not pay her rent. After her mother died, Daisha has lived in a variety of shelters and with other family members. Despite that, Daisha has had employment with the City of Toronto Parks and Recreation Department, and volunteered at a food bank. She is now just two credits short of a high school graduation diploma.
[27] All these circumstances are relevant to Daisha Lewis’s perception of the events of June 23, 2010.
[28] The Supreme Court of Canada has recently summarized the elements of the common law defence of duress in R. v. Ryan, (2013) S.C.C. 3:
- There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
- The accused must reasonably believe that the threat will be carried out.
- There is no safe avenue of escape. This element is evaluated on a modified objective standard.
- A close temporal connection between the threat and the harm threatened.
- Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
- The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
[29] The Crown submits that it would be illogical for McLennan to force an unwilling person to participate in a robbery, as this would needlessly increase the risks that something might go wrong, particularly when he had plenty of others willing to so engage.
[30] I am not prepared to ascribe logical or rational behavior to Andrew McLennan. He was, after all, committing robberies while wearing an electronic ankle bracelet which tracked his movements. His violence was entirely irrational. I accept the evidence of Daisha Lewis that he threatened her with serious violence in order to compel her to participate in the robbery. She knew of his reputation for violence and had seen examples of it firsthand. It was objectively reasonable for her to be frightened of him and to believe that the threat would be carried out. I accept her evidence that she thought he would either kill her or beat her up with such severity as to send her to a hospital if she did not comply. This would be consistent with his character and reputation. She did exhibit some fortitude and attempted to resist his demands several times. This does not mean she was not frightened of him.
[31] Was there a safe avenue of escape? Andrew McLennan frequented the same community. Their paths crossed on occasion at programs offered to residents of the area. While there were moments during the robbery when, for example, McLennan went into a store first and left the others in the car for a minute or two, I accept the evidence of the defendant that she did not flee because she feared she would not escape violent retribution if she did so. For a person with her life experiences this was a reasonable perception. McLennan’s actions demonstrate that the slightest hesitation to comply with his demands or a refusal to do so resulted in immediate violent consequences. There was no basis for her to conclude that she would escape those consequences later if she fled from the scene of the robberies, even if she would have been out of his immediate reach had she fled. Nor would it have been logical to expect that he would forego retribution because the participation he demanded of her was relatively minor, and not really necessary to carry out the robbery. To the defendant’s knowledge, lesser slights had resulted in homicides in her community.
[32] The harm threatened to Daisha Lewis was great. The tasks given to her by McLennan to keep watch at the door of the first robbery, and to go in and take lottery tickets at the second were of substantially less gravity compared to the harm threatened to her. The proportionality of analysis would be entirely different had she herself committed acts of violence.
[33] The evidence of the victims suggesting that Daisha Lewis was standing inside the door to the Branstone street store, and looking inside and blocking the way out, does not cause me to doubt her evidence that she stepped inside for a moment, then turned around and went back outside to watch as she had been instructed to do. I have already discussed the frailties associated with their evidence. Daisha Lewis was in the best position to describe her own movements, and did so in a credible manner.
[34] I am not satisfied that the gun used in the Branstone robbery would have been visible to Daisha Lewis. She may have stood at the front door, facing inwards for only a moment or two. Ms. Zhai testified that the robber held a gun to her left side, on the side opposite the door. There was a store counter between Ms. Zhai and the front door which was topped with a cash register and candy containers. Even Ms. Zhai testified that she presumed she was hit on the hand with a hard object. She did not say she saw the gun at that point. Ms. Lewis had no opportunity to see the gun used in the second robbery. I found her evidence that the first time she saw the gun was after the second robbery when McLennan threw it into the backseat credibly given.
[35] Nor is the fact that she fled when police stopped the vehicle inconsistent with duress. She knew she had just participated in a robbery. It would be entirely unrealistic for her to sit calmly in the car, wait for police to speak to her, and identify the others, given the threats to which she had been subjected.
[36] There is no basis to conclude that she voluntarily put herself into an association where she could be coerced. I reject the Crown’s suggestion that she was in the nascent stages of developing a relationship with McLennan. There were no communications between them in the days before the robberies reflected in McLennan’s cell phone records. Any contact she had with McLennan in the month or so before the robberies was incidental and not at her initiative.
[37] The Crown suggests that it was illogical for Lewis to call Marcus Charles for a ride, and that her actions in running back into the store to grab chocolates demonstrate that she was a willing participant. I do not conclude that calling Charles for a ride was so illogical as to cause me to doubt the essential credibility of her evidence. Similarly, while running back for the chocolates was somewhat bizarre, her narrative of why she did that and McLennan’s reaction seem too detailed to be fabrications on her part.
[38] In short I conclude that the Crown has not proven beyond a reasonable doubt that the defence of duress is not available to the defendant. I am not satisfied beyond a reasonable doubt that she knew McLennan had a gun with him until after the second robbery. The only reason she had her face masked, and participated in the robbery was because of the duress exerted by McLennan.
[39] For these reasons, the defendant is acquitted on all counts.
Pardu J.
Released: February 28, 2013
COURT FILE NO.: CR-12-40000267-0000
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAISHA LEWIS
REASONS FOR JUDGMENT
Pardu J.
Released: February 28, 2013