COURT FILE NO. : 13-70000197-0000

DATE: 20130328

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

MIKHAIL GOMEZ

Yeshe Laine, for the Crown

Sharon Jethan, for the Accused

HEARD: March 12 – 23, 2013

G.R. Strathy J.

Introduction

1On January 6, 2010, just before 10:00 p.m., two men robbed the Carlaw Convenience store at gunpoint. They got away with about $100 and a few packages of cigarettes, but not before the proprietor hit one of them on the side of the head with a metal bar. After a struggle, the proprietor chased them out of his store and down the adjacent side street. There, he met a customer, who picked up the chase and followed the robbers as they made their way toward the Chester subway station. On the way, the customer managed to call the police on his cell phone.

2The police arrived at the subway at about 10:00 p.m. and arrested the accused, Mikhail Gomez, and his friend Nicholas John, on the subway platform. Mr. John had a handgun and $103.50 in his pants. Mr. Gomez was holding a duffle bag containing 22 packages of cigarettes. He had a fresh scalp wound, near his right ear.

3Mr. Gomez stands charged with (1) conspiracy to rob; (2) robbery while armed with a firearm; (3) assault; (4) wearing a disguise with intent; (5) possession of property obtained by crime; and (6) possession of cocaine.

4The sole issue is whether Mr. Gomez was one of the men who robbed the convenience store. Mr. Gomez and Mr. John denied robbing the store and testified that they had found the handgun, the money and the cigarettes, which had been abandoned by the real robbers. They claimed that the police arrested and charged the wrong men.

The Evidence

The Area

5I will briefly describe the neighbourhood of the robbery and the path taken as the robbers were chased from the scene.

6The Carlaw Convenience is located at 850 Carlaw Avenue, on the northwest corner of the intersection of Carlaw and Cruikshank Avenues. Ferrier Avenue is the first street west of Carlaw and runs north-south to the Danforth. The other major north-south streets, running west from Ferrier, are Logan, Arundel and Chester. A laneway called Plum Place runs north-south between Logan to the east and Arundel to the west. Ainsworth Road is the first major east-west street north of Danforth. It runs between Logan and Arundel, bisecting Plum Place. Just north of Danforth, running in an east-west direction between Ferrier and Chester, there is a series of parking lots and parkettes, linked by a concrete walkway. They terminate at the Chester subway station.

The Robbery

7Mr. Jing Yi Li, the proprietor of Carlaw Convenience, testified that he was completing a sale to a customer, Patricia Koury, when a man entered the store. He was wearing dark clothes and had a dark scarf or cloth covering the lower part of his face. He was about 1.78 meters to 1.8 meters tall and Mr. Li estimated that he weighed at least 200 pounds. He appeared to be in his twenties. From the colour of his skin around his eyes he appeared to be black. He had a gun in his right hand, which he pointed at Mr. Li’s face, and yelled “money”. He came behind the counter, pushed Mr. Li aside and took money from the open cash register. Mr. Li thought he took over $100 in $5 bills. He said the gun was grey or silver and was about 10 to 12 inches long.

8After Mr. Li was shoved aside by the first man, he grabbed a metal bar from the floor behind the counter. He saw a second man taking cigarettes from the shelf behind the counter and putting them in a light blue bag. He thought that the cigarettes were Players and du Maurier. He described the second man as shorter than the first, about 20 years old and around 1.75 meters tall, with a pretty strong build. He only saw a flash of the man’s face, but thought that he was black. He said that the man was wearing a coat that was yellow around the upper chest and shoulders.

9Mr. Li hit the second man with the metal bar, making contact on the right side of his face, beside the eye.

10The robbers struggled with Mr. Li behind the counter. It was suggested to Mr. Li in cross-examination that all three of them could not have fitted behind the counter at the same time, but he insisted that they were able to do so. At some point, the first man went around to the other side of the counter and began to hit Mr. Li on the top of his head with the gun. The second man was hitting him with his fists.

The Pursuit

11The two men then ran out of the store, with Mr. Li running after them, holding the metal bar. He followed them west along Cruikshank Avenue. It was dark, but he testified that he could see flashes of the men as they ran down the street. They turned south at Ferrier and he had chased them part way down the street when he encountered a customer, Mr. Laird McMurray, who was out walking his dog. Mr. Li told him that his store had been robbed. Mr. McMurray asked Mr. Li to watch his dog and began to run down Ferrier after the men. Mr. Li used his cell phone to call 911 and returned to his store where he was met by the police.

12Ms. Koury had been in the store buying cigarettes when the men came in. She testified that she was just reaching for her change when the door snapped open and two men walked into the store. The first man pulled down the scarf covering his face, pointed at her and said “You, down on the floor”. He walked behind the counter to where Mr. Li was standing. He had a gun in his gloved right hand and he pointed it at Mr. Li. Ms. Koury described it as a large L-shaped handgun, “greeney-grey” coloured, with a thick barrel. She described the first man as about six feet tall with broad shoulders. He was wearing a dark grey or blue heavy wool coat, a dark grey or brown scarf and dark grey or black gloves. He had a dark coloured winter hat with a rim or brim that was turned up and the underside was lighter coloured. She described him as black, and said that he had large thick lips and a large nose. His ears were large and stuck out. He appeared to be in his late twenties.

13She did not get a good look at the face of the second man, but when he entered the store, she saw that there was something white around his neck. She thought it was a white collar or a scarf. She described him as three or four inches shorter than the first man.

14When Ms. Koury realized that a robbery was in progress, she got down on the floor, covered her face with her scarf and crouched down “like a possum”, trying to make herself invisible. She heard the men yelling at Mr. Li to “get on the floor” and heard sounds of a struggle and shouting. She thought that the struggle had lasted about two minutes when she heard one of the men say something like “Its time, two minutes, cops, let’s go.” She heard footsteps running by her and then everything went quiet. She waited about ten seconds and, hearing nothing more, peeked under her scarf and saw that no one was in the store. She went out the door and saw Mr. Li running down Cruikshank after the robbers. They were in the middle of the road. She believed that he was behind the second man, because she saw that what she had taken to be a white scarf was in fact a white shirt collar or a hoodie. Mr. Li was about half way down the street at that point and the man with the white hoodie appeared to be about fifteen feet in front of Mr. Li. She saw the man turn around to look at Mr. Li, and at that point she observed that he was black.

15Ms. Koury ran back to the store and called 911. She confirmed the content of the 911 call that was played in court. In it, she identified the first man as black with a greyish-brown scarf over his face with a black hat with a visor. She said that she had seen someone with a white scarf or collar, but said that it could have been the store owner. She described the gun as a heavy thick gun with a thick barrel and a thick handle.

16Mr. McMurray was walking his dog southbound on the west side of Ferrier Street, when he saw two people running down the middle of the road on Cruikshank and then turn south on Ferrier. He recognized Mr. Li running about 150 feet behind them. He was bleeding and was carrying a metal bar. Mr. McMurray deduced that Mr. Li’s store had been robbed and that he was chasing the robbers. He took up the chase, catching up with Mr. Li south of the intersection of Cruikshank and Ferrier. He told Mr. Li to watch his dog while he ran after the two men.

17Mr. McMurray described following the two men south on Ferrier and into the parking lot that runs westerly off Ferrier north of the Danforth. He observed that one was wearing a dark coat and the other was wearing a dark coat and a white hoodie. He described them as between 5 foot 8 inches and 6 feet tall and said that they were “reasonably well made”, about 160 to 180 pounds. As the men entered the parking lot at Ferrier, they slowed down from a run to a brisk walk, apparently concluding that the store owner had run out of breath and was no longer following them.

18Mr. McMurray had lived in the area for over 25 years and was intimately familiar with the parking lot and the parkettes running north of the Danforth. Being careful not to be observed, and adjusting his pace to theirs, Mr. McMurray continued to follow the two men through the parking lot and the series of green spaces, and then through another parking lot west of Arundel, until he saw them enter the Chester subway station. He said the two men were constantly in his view, which was never obstructed, and he never lost sight of them. The men kept on the concrete pathway as they walked through the parkettes. He said that the parking lots and the parkettes were well lit, for public safety reasons, and said that there was no one else in the parkettes, the parking lots, Plum Place or Logan Avenue. When defence counsel suggested that he had lost sight of the men at Plum Place, he denied it, saying that he maintained a distance so that the men were always in his sight. Defence counsel also suggested that the men he had been following had gone up Plum Place before he got to the intersection. He disagreed, because he never lost sight of the two men, whom he described as “walking shoulder to shoulder.” He flatly dismissed defence counsel’s suggestion that, having lost sight of the two men, he began to follow two different men.

19While walking through the parking lots and the parkettes, he phoned 911 and told the police what had happened.

20As he crossed Arundel Avenue, he heard the sound of the eastbound subway train leaving the Chester station. At about the same time, he saw the two men enter the subway station, go past the ticket booth, and head down the stairs to the eastbound platform. Within a minute or so, he saw the police arrive and he ran up to them and told them that the suspects were on the eastbound platform.

The Arrest

21When police officers arrived at the Chester subway station they immediately descended to the eastbound platform where Mr. Gomez and Mr. John were standing talking, with their hands in their pockets. The only other people on the platform were a man and a woman. The police identified themselves and told them to take their hands out of their pockets. One of the arresting officers, Ovisho, testified that at this, Mr. Gomez pulled the white hoodie over his head, turned, and began to walk away. His evidence was confirmed by Officer Gall and by Officer Elliott.

22The two men were arrested. Mr. John was found with $103.50 in cash in his left pocket, largely consisting of $5 bills. A black gun was tucked into his waistband on his right side. It was a Beeman P17 pistol, later determined to be an air gun. It was 250 mm (about 10 inches) long and 150 mm (about 6 inches) high. Mr. Gomez was carrying a blue and black nylon duffle bag with a shoulder strap. Inside there were a number of loose packages of du Maurier cigarettes and a black patterned bandana.

23PC Ovisho testified that when Mr. John was placed on his back to facilitate a search, he began to kick and spat in his direction. He told him to stop and to straighten his legs. In order to subdue Mr. John, he delivered several hand strikes to his body, whereupon the kicking stopped.

24Mr. John was described by officer Ovisho as a male black, 6 foot 1 inch tall, 190 pounds, wearing a blue hoodie with a grey jacket on top, blue jeans and black shoes. Officer Ovisho said that he found a black ski mask in Mr. John’s possession, but Officer Gall described it as a grey toque. A pair of black gloves was found in Mr. John’s right jacket pocket. Mr. Gomez was described as male black, 5 feet 11 inches or 6 feet tall, wearing a black jacket, white hoodie, black jeans and white running shoes.

25PC Hopkins was involved in the arrest of Mr. Gomez at the subway station. He advised Mr. Gomez that he was under arrest for armed robbery and informed him of his right to counsel and cautioned him. He said that Mr. Gomez replied, “yeah, I fucked up”. He then asked whether he wanted to call a lawyer now and Mr. Gomez said, “yeah”. Mr. Gomez had a crescent-shaped injury to the right side of his head, above his ear. PC Hopkins escorted Mr. Gomez to a waiting ambulance to be taken to have his wound treated. Officers Baird and Perks accompanied him and EMS personnel to Toronto East General Hospital.

Trip to Toronto East General Hospital with Mr. Gomez

26PC Baird testified that at the hospital Mr. Gomez was informed of his right to counsel by PC Perks and cautioned and was asked whether he wanted to call a lawyer. He said that Mr. Gomez had spontaneously said that he had “fucked up” and that he and Mr. John had picked the store because it looked “easy and quiet.” He had hit Mr. Li in the face because Mr. Li was hitting him. PC Baird denied that these statements were made in response to any questions by the officers. He said that Mr. Gomez looked “solemn and defeated”.

27PC Perks testified that he read Mr. Gomez his rights and cautioned him, to which Mr. Gomez replied that he did not have a lawyer. He told Mr. Gomez that they could give him the name of a lawyer and he replied “OK”. He said that Mr. Gomez appeared to be visibly upset. He testified that while they were waiting for a doctor there was a general conversation and Mr. Gomez said, “I fucked up” and said that he had picked the store because “the store looked easy, very quiet.” In cross-examination, PC Perks acknowledged that Mr. Gomez said that he did not have a lawyer and expressed a desire to speak to a lawyer. He said, however, that the statement “I fucked up” was made without questioning or provocation. He could not say the same with respect to the other statements made by Mr. Gomez and he ultimately acknowledged that Mr. Gomez may have been questioned at the hospital after he had said that he wanted to speak to a lawyer and after he said that he had “fucked up”.

28The Crown relies on the statements allegedly made by Mr. Gomez that he “fucked up”. It does not seek to introduce the other utterances at the hospital. The defence does not dispute that the utterance “fucked up” was voluntary and admissible, but as I will explain below, it was Mr. Gomez’s evidence that on both occasions he had told the officers that they were “fucked up”, not that he had “fucked up.”

The Police Interview of Mr. John

29Mr. John was interviewed by DC Harris and DC Mullen at 54 Division in the early morning of January 7, 2010. DC Harris testified that after being given a general briefing about the robbery by another officer, he and DC Mullen spoke to Mr. John in an interview room at 1:53 a.m., explained the charges to him and read him his rights. After Mr. John stated that he did not wish to see a lawyer he agreed to give a video statement. As there were no video facilities in the room, he was taken to an interview room and the officers conducted a 25 minute video interview. He testified that Mr. John appeared upset at what had happened, but was soft spoken and calm. DC Mullen’s evidence was similar.

30In cross-examination, defence counsel accused Detectives Harris and Mullen of having provided Mr. Gomez with details of the crime and of persuading him to make a false confession by telling him that if he confessed he would not go to jail and would be able to go to college. The detectives denied this. They said that they did not question Mr. John until after he was read his rights, cautioned, and declined his right to counsel and after he said that he was willing to give a statement. They denied that Mr. John had protested his innocence.

31I turn to Mr. John’s evidence.

Mr. John’s Evidence

32Mr. John was called as a Crown witness. After hearing his evidence, and the evidence of the officers who took his statement, I granted leave to the Crown to cross-examine Mr. John on his videotaped statement and ultimately granted the application of the Crown to admit that statement for the truth of its contents. I will release my reasons on the KGB application in due course. I will review his evidence at this trial and in his statement.

33Mr. John testified that at about 8:00 p.m. on January 6, 2010, he and his friend Mr. Gomez had their hair cut at a salon on Pape Avenue. They met by chance, but they had been friends for a long time and decided to smoke marijuana in an alley behind the store. After this, they went for a pizza, and then smoked some more marijuana. The exact location where this occurred was a little unclear, but it was around Ainsworth Road and Plum Place. He testified that after this, they were walking south on Plum Place, when they saw two men running towards them, heading north. One of the men threw a bag into the back lot behind a house. They were about 10 or 20 feet away from the men when this happened. The men stopped running and walked past them, continuing north on Plum Place.

34Mr. John testified that they walked over to the bag and Mr. Gomez opened it. At this moment, one of the two men came back around the corner of the fence, confronted Mr. Gomez and tried to take the bag from him. There was a struggle, and the man hit Mr. Gomez on the side of the head. Mr. John said that he was trying to pull the man away from Mr. Gomez, when he heard the second man say “forget it, it’s not worth it” and the first man stopped trying to get the bag and continued up Plum Place. He described one of the men as black, in his 20s, about 6 feet 1 inch tall. He had a deep voice. He did not recall what either man was wearing. The second man was brown-skinned and about the same age.

35He said that the entire exchange between the time they first saw the two men and when they last saw them took two to three minutes.

36He and Mr. Gomez walked away from the scene of the confrontation and went to the Chester Station. On the way, they looked into the bag and saw a gun, money and cigarettes. He put the money in his pocket and the gun in his waistband.

37Mr. John said that the videotaped statement he gave to the police was not true. He said that he had been beaten up and punched on the subway platform and that one of the officers had kicked him three times in the side of his head. Another officer had punched his legs and someone had pressed against his ribs. He admitted that he had spat while he was on the ground, but said that he had gotten dirt in his mouth when he was lying face-down on the platform after his arrest. He said that when he got up to the street to be placed in the police cruiser, one of the officers accused him of pistol-whipping people and robbing innocent people. He said that he was told that his friend was getting stitches because he had been hit on the side of his head by a Korean man.

38He said that at 54 Division, Detectives Mullen and Harris explained the charge and accused him of robbing the store, an allegation he denied. He said that the detectives told him that if he gave a statement, he would not have to do any jail time and he would be able to go to college as he had hoped. He said he was cautioned that he did not have to say anything and that he was entitled to talk to a lawyer and he did not want to do so. He said he was in the interview room for 20-25 minutes before he gave the statement and the detectives were in the room with him for about half that time. He said they told him the details of the robbery, and that Mr. Gomez had been hit in the head in the robbery. This was all he could remember them telling him, but “there was probably more.”

39Mr. John’s video statement lasted about 25 minutes. The charges were explained to him. His right to counsel was explained and he stated that he did not want to speak to counsel. He was cautioned that he did not have to say anything and that anything he said could be given in evidence. It was explained that any discussions with persons in authority were not to influence him. He appeared to understand what was being said.

40Mr. John then gave a detailed statement of how the robbery had been planned and executed. He said he and Mr. Gomez had gone to the store the previous evening to scope it out and they discussed where they would run. He said he was wearing a bandana and Mr. Gomez was wearing a ski mask. He described going into the store and the proprietor being behind the counter and the female customer buying something. He described pointing the gun at the owner and the cash register being open and him going behind the counter to take the money while Mr. Gomez went behind to take the cigarettes and put them in the duffle bag. He described putting the money in his right pocket. He described Mr. Gomez being hit with a stick the proprietor had got from under the counter and then the three of them struggling behind the counter. He said he then went to the front of the counter and hit the man with the gun. He described the female customer being on the ground. As I will discuss below, Mr. John’s statement is consistent with the evidence of Mr. Li and Ms. Koury concerning the events inside the store.

Mr. Gomez’s Evidence

41Mr. Gomez swore he had nothing at all to do with the robbery. He said he had met Mr. John earlier that evening at a hair salon near Pape and Sammon. After getting their hair cut, they smoked a joint and talked in an adjacent alleyway. They got hungry and went for a pizza. It was a cold night, but rather than stay inside the pizza store to eat, they carried the pizza with them and walked towards Ainsworth and Plum Place, where they smoked another joint.

42After they finished the joint, they were walking south on Plum Place when they saw two men turn the corner of the pathway through the parkette and head north on Plum Place. He saw the men throw what looked like a duffle bag in a laneway or driveway just north of the pathway. The men continued walking, very fast, past them and continued north on Plum Place. After the men passed them, Mr. Gomez and Mr. John went to the bag, which was lying near a fence. He said that he was curious because he thought there might be something valuable in the bag. By this time, he said, it was about 9:48 or 9:49 p.m. This was obviously an estimate, as he was not wearing a watch.

43He had just picked up the duffle bag when one of the two men returned suddenly, attempted to grab the bag from Mr. Gomez, and hit him on the side of the head, possibly with a ring. The man said nothing to Mr. Gomez and Mr. Gomez said nothing to him. Although Mr. John was right beside him when this occurred, he said that Mr. John did not do or say anything. In spite of being hit, and making no resistance to the man’s attempts to reclaim the bag, Mr. Gomez did not relinquish the duffle bag. He said that he was going to let go of it, but he heard the second man, who was still up Plum Place, say “come on” and the man who had hit him gave up and simply left.

44Mr. Gomez was unable to describe either man. He said that it was dark and everything had happened very quickly. He was shocked and confused. He did say that the man who confronted him was bigger than the other, perhaps 6 foot 2 inches. He said he was wearing dark clothing.

45Mr. Gomez said that after the men left, he and Mr. John continued to walk to Chester station. They opened the bag and discovered that it contained some money, cigarettes and a handgun. Mr. Gomez said that they realized that the gun was fake. They were discussing what to do with these items when they realized that they were at the subway station. Mr. John put the money and the gun in his pockets, while Mr. Gomez retained the bag with the cigarettes, and they proceeded to the platform. They were still discussing the matter, on the platform, when the police arrived and arrested them.

46Mr. Gomez testified that the entire interaction with the two men, from the time he first saw them until the time he last saw them, lasted 30 seconds. It was put to him in cross-examination that Mr. John had said that it was two to three minutes. He suggested that Mr. John was confused.

47Mr. Gomez admitted that he looked away when the officers approached him and Mr. John on the subway platform, but he denied that he pulled up his hoodie. He said that he turned away because he had not done anything.

48Mr. Gomez denied that he had said that he “fucked up”, either when he was arrested at the subway station or at the hospital. He said that when he was arrested on the subway platform, he told the police officers that they were “fucked up” because they were beating Mr. John when he was not resisting arrest. He testified he said the same thing to officers Baird and Perks at the hospital, because they were harassing him and trying to get him to talk after he had told them that he wanted to speak to a lawyer.

49Having summarized the evidence of the key witnesses, I will now set out my findings concerning their reliability and credibility.

Comments on the Evidence

The Evidence of Mr. Li, Ms. Koury and Mr. McMurray

50I found the evidence of Mr. Li, Ms. Koury and Mr. McMurray to be careful, reliable and credible on the important issues. To the extent there may have been minor internal or external inconsistencies in their evidence, they were nothing more than what typically happens when several people see the same events from different perspectives or when one person recounts the same events several times.

51Ms. Koury was a good observer and a precise and thorough witness. Although she was on the ground with her head covered for much of the time, she made careful observations of what transpired after the men entered the store and after they left. Her descriptions of the men and their clothing were very specific and reasonably accurate. Her description of the large gun held by the first man generally matched the description of the gun found on Mr. John. Her description of the first man’s facial features is consistent with Mr. John’s appearance, as shown in the photographs, Exhibit 8. Her description of the white shirt collar on the second man matched the “hoodie” worn by Mr. Gomez. I accept her evidence that the white collar or scarf she observed on the second man in the store was the same as the white hoodie she saw on the man being chased down the street by Mr. Li.

52Mr. Li had a good recollection of the events and was specific and clear in his evidence. His description of how the robbery unfolded corresponds closely with Mr. John’s statement. At no point was Mr. Li’s testimony seriously impeached. He did not speculate or exaggerate. He was forthright on the limits of what he was able to observe and he did not try to overstate his evidence. I found him to be a straightforward and credible witness.

53Mr. McMurray struck me as a sensible and careful man, who was precise in his language and was not given to overstatement. He had seen two men fleeing the scene of a robbery and he was determined to follow them, without putting himself in peril. In court, he was doing his best to describe the events exactly as he saw them, without favouring either party. He was emphatic that he never lost sight of the two men, between the time he first saw them and when they entered the Chester subway station and went down the stairs to the eastbound platform. He had a good memory and gave his evidence precisely. He described the hoodie being worn by one of the men and he described the two men slowing down as they entered the parking lot off Ferrier.

54Defence counsel challenged the evidence of the three eyewitnesses concerning their ability to see outside that night. All three conceded that it was dark, but said they were able to see the things they described. I find the photographs put to these witnesses by defence counsel of little value in assessing the level of visibility for the human eye. The photographs were apparently taken by a lawyer or clerk employed by defence counsel and not by a professional photographer. There was no evidence concerning the conditions in which the photographs were taken or whether the camera was set to accurately depict what the human eye would have seen at night. Although some of the witnesses said that some of the photographs were accurate, this does not detract from their sworn evidence that they could see the things they described in their testimony. In particular, I accept the evidence of Ms. Koury that she was able to observe the white shirt or hoodie of the man being chased by Mr. Li and the evidence of Mr. McMurray that one of the men he followed was wearing a white hoodie.

55Defence counsel challenged Mr. McMurray’s evidence, suggesting in cross-examination and in argument that he could not possibly have maintained visual contact with the two robbers as they made their way through the parking lots and parkettes. Referring to the photographs, she suggested that Mr. McMurray’s view must have been obscured by darkness, or, at various times, by trees or other obstacles. The short answer to this is that Mr. McMurray was determined to keep the two men in view, and he was able to adjust his pace and his location in order to do so. He testified that the pathways were well lit for the protection of the public and well groomed so that people could not lurk behind bushes. The photographs produced by counsel are not proven to depict the precise locations from which Mr. McMurray made his observations.

56Mr. McMurray was intimately familiar with the area. He was concerned for his own safety, so he kept his distance, but he wanted to keep the two men constantly in view and he did so. He thought they were confident they had lost Mr. Li, so they slowed their pace and he was able to keep up. His descriptions of the route show that he knew where they were at all times and knew where he was. I find his evidence in this regard highly reliable. I accept Mr. McMurray’s evidence that he was able to see the men at all times after he took over the chase from Mr. Li until he saw them go down to the eastbound platform at the Chester subway and that he never lost sight of them.

57Before I leave the evidence of Mr. Li, Ms. Koury and Mr. McMurray, I will comment on the submissions of defence counsel as to the well-known frailties of eyewitness identification. She urged me to regard the identification of Mr. Gomez as one of the robbers as inherently unreliable. She referred to: R. v. Jack, 2013 ONCA 80; R v. Goran, 2008 ONCA 195; and R. v. Turner, 2012 ONSC 1651. I accept the principle that eyewitness identification evidence must be approached with great caution, but those cases were very different from the case before me. In Jack, the prosecution’s entire case rested on the eyewitness identification of the appellant by two victims. There was no other direct or circumstantial evidence to connect the appellant to the robbery. In Goran, there was little other evidence to confirm or support the identification evidence (para. 32), and the victims had previously identified someone other than the accused as their attacker in a photo line-up. Turner was also a case that rested primarily on eye-witness identification, and there were some significant weaknesses and inconsistencies in that evidence.

58In this case, in contrast, none of the eye-witnesses specifically identified Mr. Gomez as one of the robbers. None of them had a sufficiently clear view of the second robber, for a sufficient period of time, to enable them to do so. While their physical descriptions of the robbers are part of the evidence, they are far from being the only evidence and they are not the most significant evidence. As I will discuss shortly, the most important evidence is the physical evidence that connects Mr. Gomez and Mr. John to the robbery, the evidence from Mr. John’s KGB statement, and the utter incredibility of the version of events put forward by Mr. Gomez and Mr. John.

59That said, I accept that the evidence of the three eyewitnesses must be approached with some caution. In the case of Mr. Li and Ms. Koury, the incident was relatively brief and highly stressful. Their opportunity to observe was limited. Their descriptions, and the descriptions given by Mr. McMurray, did not match perfectly. Some aspects of their descriptions – facial features, for example, must be regarded with extreme caution. Other aspects, seeing a large gun in a gloved hand, or the “flash” of white around a neck, or the white hoodie against dark clothing on a dark night, are more likely to make an impression and to be more memorable.

Mr. John’s Statement

60Having carefully reviewed the video statement, and the evidence of Mr. John and Detectives Mullen and Harris, I have concluded that the video statement given by Mr. John was truthful. The setting in which the interview took place was casual. Mr. John was sitting on a sofa in the middle and each of the officers was in an armchair on either side of him. They were not taking notes. The atmosphere was not oppressive or intimidating.

61Mr. John appeared relaxed and did not seem to be under external stress. He spoke easily and did not appear to be straining to remember things. His answers did not appear rote or scripted. The questions were not, in general, leading and his answers appeared spontaneous and unrehearsed.

62Although the statement was not under oath, Mr. John was informed of the charges against him and of his right to counsel and was cautioned, and was told that the statement would be videotaped.

63There are several features of Mr. John’s statement that are notable for their degree of precision and the extent to which they match the evidence of Ms. Koury and Mr. Li. For example, Mr. John was very specific in saying that the cash register was already opened when he took the money out. At first, officer Mullen had said “Did you ask him to open it?” and Mr. John replied, “Yeah, I axed [sic] him to open it …” Shortly after that corrected himself and said, “… no, he didn’t open it, it was already open.” This detail, although small in itself, coincides precisely with Mr. Li’s evidence that the cash register was open when the men entered the store.

64Similarly, Mr. John’s description of the sequence in which the events occurred, with him going immediately behind the counter to the cash register and Mr. Gomez going for the cigarettes, was precisely as described by Mr. Li. He also described how he, Mr. Gomez and Mr. Li had struggled behind the counter, something that defence counsel had suggested to Mr. Li would have been physically impossible. Mr. John’s statement on this detail matched Mr. Li’s evidence. He also described the owner, accurately as “Chinese and maybe 40”, whereas he says that the police officers who escorted him to the station said that the owner was Korean. There is no evidence that the police officers knew any of these details about the robbery.

65Mr. John described slowing down after he ran from the convenience store, because he was tired, and then talking to Mr. Gomez about his head injury. This is consistent with Mr. McMurray’s evidence that the two men slowed down after entering the parking lot and that at one point he could hear them talking.

66The symmetry between the details provided by Mr. John and the events described by Mr. Li, Ms. Koury and Mr. McMurray supports the veracity of the statement.

67In addition, Mr. John provided some details in his statement that were entirely peripheral to the events of the robbery, but are confirmatory of his involvement. For example, when asked by the officers about the gun, he said that he had found it in the woods a few days earlier and kept it in the bottom drawer at home. Why would he provide this piece of detail if he had only found the gun a few hours earlier, as he testified at trial? He also added the detail, near the end of his statement, that he and Gomez had planned the robbery and had “scoped out” the store the night before, including discussing where they were going to run after the robbery. He said that they had looked to see where the cash register was. Again, this was an inculpatory level of detail that was entirely unnecessary and would not likely have been included in a coached and false statement. Detail is frequently, but not always, a signpost of truth. In this case, considered with all the other evidence, these small details volunteered by Mr. John, support the veracity of his statement.

68Mr. John appeared to be co-operative and genuinely remorseful. When asked at the conclusion of the statement what he would say to the store owner if he were there, he said “I would just say that I apologize for what I’ve done and it was a stupid thing to do, to even think about.” That statement appeared sincere and unrehearsed.

69There is nothing in Mr. John’s statement, or in the manner in which he gave it, to suggest that he was simply regurgitating information that had been provided to him by the police officers, very briefly at the police car or in the 10 or 12 minutes that he spent with Detectives Mullen and Harris before his video statement was taken. It is inconceivable that in the short time available, Mr. John could have been coached to give the coherent and detailed statement that he gave.

70I accept the evidence of Detectives Harris and Mullen concerning the circumstances in which the video statement was given, and find that Mr. John waived his right to counsel and gave the statement voluntarily. I reject Mr. John’s evidence that he only gave his statement after the detectives promised that he would not go to jail and that they coached him on the statement. I should also add that I reject the evidence given by Mr. John about being beaten on the subway platform. His admitted that he spat, but said that he was spitting dirt out of his mouth, an all-too-convenient explanation. In my view, Mr. John’s credibility has been severely compromised and I accept the evidence of the officers who arrested him in preference to his evidence.

71I also find that the statement was true because, as I will explain, I reject as false and fabricated the story now given by Mr. John and Mr. Gomez.

The Evidence of Mr. John and Mr. Gomez

72This story told by Mr. Gomez and Mr. John goes as follows: having walked through the parking lot at Ferrier and continued through the parkettes, the “real robbers” left the pathway at Plum Place and suddenly discarded the bag, containing the gun, the money and the cigarettes, in plain view, and then walked right past Mr. Gomez and Mr. John who, coincidentally, were coming south. Without waiting for the men to get well away from the area, Mr. Gomez picked up the bag and was suddenly accosted and wounded by one of the “real robbers” who just as suddenly gave up the struggle and disappeared. All this occurred without a word being spoken and without Mr. Gomez and Mr. John being able to give any useful description of either of the men. There was a conflict in the evidence as to whether Mr. John intervened to help Mr. Gomez in retaining the bag, and in the evidence about whether or not Mr. Gomez opened the bag before the “real robber” appeared. According to Mr. Gomez, this silent confrontation took only 30 seconds.

73The story continues that Mr. John and the wounded Mr. Gomez, now the possessors of the bag, without stopping to reflect on what to do with it, proceeded to walk along the path directly to the Chester subway station. Realizing that they were now close to the station, Mr. John decided to tuck the gun into his waistband and put the money into his pants pocket. Mr. Gomez retained the bag with the cigarettes in it. This coincidental placement of the contents of the bag had Mr. John holding the gun and the money – just like the first “real robber” had, and Mr. Gomez holding the cigarettes and having a head wound – just like the second “real robber” had.

74In order to make this story work, the defence theory has it that Mr. McMurray, unaware that he had lost track of the real robbers up Plum Place, now followed the innocent Mr. John and Mr. Gomez as they emerged onto the pathway, and continued to the subway station.

75A major problem with this story is that, according to Mr. John’s evidence at this trial, the encounter with the two men on Plum Place lasted two to three minutes. Mr. Gomez said that it lasted 30 seconds, but it seems inconceivable that everything they described could have happened in that short period of time. It was never put to Mr. McMurray in cross-examination that the two men he was following disappeared for even 30 seconds, let alone two to three minutes. It was suggested that he “lost” the two men he was following at the intersection of the pathway through the parkette and Plum Place, a suggestion he dismissed with some disdain. As I have noted, Mr. McMurray was emphatic that he had a clear view of the men at all times and never let them out of his sight.

76The evidence of Mr. John and Mr. Gomez of the encounter with the “real robbers” has been deliberately compressed into a short time frame by Mr. Gomez to try to make it consistent with Mr. McMurray’s evidence. This is why their story is that having found a loaded gun and stolen money and cigarettes, they did not stop to think and talk about what to do, and instead proceeded directly to the subway station, with Mr. John tucking the gun into his pants as they got to the station. That is also why Mr. Gomez said that they picked up the duffle bag at 9:48 or 9:49, when he was not even wearing a watch.

77The story given by Mr. Gomez and Mr. John is short on details and inconsistent. The absence of details in their evidence reflects an attempt to fabricate a consistent version of an allegedly dynamic interaction with the “real robbers”. The fewer the details, the easier the story is for two people to remember and the less likely it is that the storytellers will be tripped up. In spite of this, Mr. John and Mr. Gomez could not get their stories straight. Mr. John said that he came to Mr. Gomez’s assistance when the “real robber” re-appeared, while Mr. Gomez said that he got no help from Mr. John. Mr. John said that Mr. Gomez opened the duffle bag before the “real robber” returned. Initially, he said that only Mr. Gomez looked into the bag, whereas in cross-examination he said that he too looked into the bag. Mr. Gomez said that he did not open the bag until they were walking to the subway station.

78Their story also defies common sense. Why would the two robbers walk south on Ferrier, along the parkettes and then north again on Plum Place, moving closer to the scene of the crime rather than farther away? Having walked through the parking lots and parkettes why, with no one in the area, would the robbers suddenly discard the bag, money and all, in a relatively open area in Plum Place? Why, having discarded the bag, would they go back to retrieve it? When confronted by the owners of the bag, and allegedly ignorant of the contents, why would Mr. Gomez not immediately surrender it? Why would the real robber not succeed in taking the bag from the allegedly passive Mr. Gomez and suddenly give it up and walk away? Once they knew that the bag must have contained stolen goods and a gun, why would Mr. Gomez and Mr. John continue to walk directly to the Chester subway without even stopping ? Why on earth would Mr. John stick the gun inside his waistband just as they were about to enter the station? Why is it that neither Mr. John nor Mr. Gomez could give any meaningful description of the two men? The obvious answer is that their story was a complete fabrication.

79When the two men were arrested at the subway station, the taller man was in possession of the gun and the money. The second man, the shorter man, was wearing the white hoodie with gold on front, was carrying the bag with the cigarettes and had a wound on the side of his head. Their clothing and general physical descriptions, height, weight, and ethnicity matched the descriptions of the robbers that were given by the witnesses. Two men carrying those things, and matching those descriptions, were followed from the scene of the crime into the parking lots and parkettes. Either Mr. Gomez and Mr. John were those men, or Mr. McMurray lost the trail of the “real” robbers and pursued the unfortunate Mr. Gomez and Mr. John, who not only picked up the contraband, but distributed the money, the gun and the cigarettes between them in exactly the manner described by the witnesses, and Mr. Gomez got hit in the head just like the “real” robber. In my view, these things were not coincidental. The story given by Mr. Gomez and Mr. John is false from beginning to end.

Conclusions

80As Mr. Gomez testified and gave exculpatory evidence, I am required to apply the three step analysis set out by the Supreme Court of Canada in R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397, as follows: (i) if I believe Mr. Gomez’s evidence that he did not commit an offence with which he is charged, I must of course acquit him; (ii) even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, I must acquit him; (iii) even if I disbelieve his evidence, and it does not leave me with a reasonable doubt, I may convict him only if the rest of the evidence that I do accept proves his guilt of the offence beyond a reasonable doubt.

81For the reasons I have given, I do not believe Mr. Gomez’s evidence, nor does it leave me with a reasonable doubt as to his guilt.

82Further, the evidence as a whole establishes the following:

• there was an uninterrupted chain of observation of Mr. Gomez, first by Mr. Li and then by Mr. McMurray, from the scene of the crime to the eastbound subway platform where he was arrested;

• when he was arrested, Mr. Gomez had a fresh wound on the right side of his face, in the area where Mr. Li said he had hit the second robber with a metal bar;

• Mr. Gomez was wearing a dark jacket and a white hoodie with a gold design on the front, consistent with the evidence of the eyewitnesses;

• Mr. Gomez was the shorter of the two men and met the general description of the second man given by Mr. Li and Ms. Koury;

• Mr. Gomez was arrested holding a blue and black duffle bag containing 22 packages of du Maurier cigarettes;

• Mr. John, his friend, was apprehended with a large gun that matched the description given by Mr. Li and Ms. Koury and with $103.50 in his possession, consisting primarily of $5 bills;

• Mr. John’s height, weight, clothing and facial features were consistent with the descriptions of the first robber by the eyewitnesses;

• when the police arrived on the subway platform, identified themselves and commanded the men to take their hands out of their pockets, Mr. Gomez pulled up his hoodie and turned away, indicative of consciousness of guilt – I accept the evidence of the police officers in this regard and I reject the explanation given by Mr. Gomez that he turned away because he had not done anything wrong – this does not strike me as a natural reaction when a group of police officers run down the stairs with their guns drawn, shouting “Police, take your hands out of your pockets”;

• I accept the evidence of the police officers that after he was arrested, Mr. Gomez voluntarily uttered the words “I fucked up” and repeated these words at the hospital – again, indicative of consciousness of guilt – it follows that I reject the evidence of Mr. Gomez that he told the police that they were “fucked up, and in so doing I note that it was never put to any of the police officers on cross-examination that they may have misheard or misinterpreted Mr. Gomez’s utterances; and

• Mr. John’s statement, which I find was reliable and truthful, confirmed that he and Mr. Gomez planned and executed the robbery and that it occurred in substantially the way described by the witnesses.

83This evidence establishes beyond a reasonable doubt that Mr. Gomez was the “second man” in the robbery of the Carlaw Convenience.

Judgment

84For these reasons, I conclude that the Crown has discharged the burden of proving Mr. Gomez’s guilt of the offences charged, other than possession of cocaine, beyond a reasonable

doubt, and he is found guilty as charged on those counts.

G.R. Strathy J.