ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3-397-13
DATE: 20130815
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SOLOMON SALIK
D. Emami, for the Crown
D. Sommers and M. Hassell, for Mr. Salik
HEARD: August 8, 2013
H. Sachs J.
Introduction
[1] Mr. Salik was charged with four sets of offences arising out of four convenience store robberies that were committed on December 10, 13, 26 and 27, 2011. At the end of the Crown case the defence brought a motion for a directed verdict in relation to the offences arising from the first two robberies. I granted their motion with reasons to follow. These are my reasons.
The Crown’s Evidence
[2] The Crown did not make a count to count similar fact application. Thus, the Crown took the position at the beginning of the trial that the trier of fact would have to consider the evidence concerning each robbery separately.
The Evidence Concerning the Robbery on December 10, 2011
[3] On December 10, 2011, Ms. Shah was working at a convenience store located at 102 Island Road, Toronto. At around 8:40p.m. three people came into her store wearing masks and robbed her. Ms. Shah testified that one of those people wore a grey hoodie, had a complexion that was a bit darker than hers (Ms. Shah appears East Indian) and was about her height (5'3"). Ms. Shah stated that because all three people were covered, she could not identify any of them.
[4] A surveillance video of the robbery was filed. That video showed that one of men who committed the robbery was wearing a loose grey hoodie (with the hood covering head), a black bandana that covered most of his face, gloves and black running shoes with some white on them. His hairline was visible and he had dark hair with a widow’s peak. In terms of build he appeared to be of average height and weight. There was nothing distinctive about his appearance.
[5] Seventeen days later, on December 27, 2011, Mr. Salik was arrested by the police. At the time of his arrest he was wearing a grey hoodie and black running shoes with some white on them. In his pocket he had a pair of gloves and a black bandana with some white markings. Mr. Salik has long dark hair, with a widow’s peak at the front. He is of small to average height and his build (which does not appear to have changed since December 27, 2011) is an average one. He has a complexion that is darker than white.
The Evidence Concerning the Robbery on December 13, 2011
[6] On December 13, 2011 Mr. Manicham was working at a variety store located at 359 Pitfield Road in Toronto. At about 9:30p.m. two men entered his store and robbed him. One of the men was wearing a grey hoodie. Both men were masked. When asked about the man in the grey hoodie Mr. Manicham replied that he "thought" he was male. He also stated that because only a very small part of the man’s face was showing, he did not observe his skin colour, although he thought it was white or brown. Mr. Manicham testified that the person in the grey hoodie was shorter than him and he is more than 5 feet. On cross-examination Mr. Manicham stated that he could not say with any certainty that Mr. Salik was one of the people who robbed him.
[7] The surveillance video of the robbery shows that one of the men who committed the robbery was wearing a grey hoodie with the hood covering his head, dark gloves, a black bandana covering most of his face and black running shoes with some white on them. The hairline of the man is visible and shows dark hair with a widow’s peak. On the video there was nothing distinctive about the man’s height or build.
[8] The other evidence that the Crown relied on to support its case that Mr. Salik was the man in the grey hoodie on December 13, 2011 was Mr. Salik’s appearance when he was arrested on December 27, 2011, which I have already reviewed.
The Test for a Directed Verdict
[9] The test for a directed verdict is whether there is any evidence which, if believed by a properly instructed jury acting reasonably, would justify a conviction. As stated by McIntyre J. in R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 at para. 161:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly instructed jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of admissibility has been made.
[10] Where the Crown’s case relies on circumstantial evidence, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23). However, as McLachlin C.J.C. stated in Arcuri, at para. 23:
The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
Analysis
[11] In this case there was no direct evidence that Mr. Salik was the man in the grey hoodie who committed either the December 10,2011 or December 13, 2011 robberies. The Crown’s case against Mr. Salik was a circumstantial one and the inferences that the Crown sought to have the jury draw from the evidence they had presented was that the jury could be satisfied beyond a reasonable doubt that Mr. Salik was the man in the grey hoodie who committed the robbery on December 10, 2011 and the robbery on December 13, 2011. In the Crown’s submission, these inferences were reasonable because when Mr. Salik was arrested over two weeks later he had on a grey hoodie, was wearing black running shoes with white markings and had a pair of gloves and a black bandana with white markings in his pocket. In terms of physical appearance he had dark hair with a widow’s peak and his height, weight and skin colour were not inconsistent with the height, weight and skin colour of the man in the grey hoodie who committed the robberies in question.
[12] There is nothing distinctive about a young man with darker skin of short to average build and dark hair with a widow’s peak in the City of Toronto. There is also nothing distinctive about such a man wearing a grey hoodie, black Nike running shoes with white markings and having a pair of gloves and a black bandana in his pocket in the middle of winter. Thousands of young men could appear this way at any given time in Toronto. To draw the inference that this man was the same man as appeared in the surveillance videos of either the December 10, 2011 or the December 13, 2011 robberies would be unreasonable, especially when considered in light of the burden of proof needed to justify a conviction. The gap between the Crown evidence and the inference it sought to have drawn from that evidence with respect to each of the two robberies under consideration was simply too great.
[13] For these reasons I directed that verdicts of not guilty be entered with respect to Counts 9 and 16 of the indictment.
H. SACHS J.
Released:
COURT FILE NO.: 3-397-13
DATE: 20130815
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SOLOMON SALIK
REASONS FOR JUDGMENT
H. Sachs J.
Released: August 15, 2013