COURT FILE NO.: CRIMJ(P) 294/13

DATE: 2013 12 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

REVINGTON BAILEY

Defence

Adam Bernstein, for the Crown

Christopher Assie, for the Defence

HEARD: November 19, 20, 21, 22, 25, 26, 2013, at Brampton

DECISION: December 16, 2013

André J.:

[1] During the evening of July 19, 2012, a black male robbed three persons at three bus stops in Brampton and Mississauga within the space of one hour. The male was armed with what appeared to have been an imitation handgun which he discharged during one of the robberies. He stole cellphones from all three victims and three bus tickets from one victim. The third victim noted the licence number of the getaway van which the police impounded a few hours following the robberies. Within the getaway van were a baseball cap with Mr. Bailey’s DNA on it, the three stolen bus tickets and some of Mr. Bailey’s documents. The police recovered two of the stolen cellphones from a business owner who purchased them from Mr. Bailey on July 20, 2012. Mr. Bailey has denied any involvement in these robberies.

[2] The sole issue in this case is whether the Crown has proven the identity of the robber beyond a reasonable doubt.

[3] For the reasons outlined below, I conclude that the Crown has proven its case against Mr. Bailey beyond a reasonable doubt.

SUMMARY OF THE EVIDENCE

Matthew Sinaga

[4] Seventeen year old Matthew Sinaga was waiting for a bus at a bus stop at Torbram Road and Steeles Avenue in Brampton at approximately 10:25 p.m. when a black male, approximately 5’6” tall, approached him and asked him about the time the bus was expected to arrive. The male kept asking Mr. Sinaga to check his phone for the bus schedule. While attempting to call a number to find out the bus schedule, the male snatched the phone from Mr. Sinaga’s hand. The male then lifted up his shirt. He had a black handgun with a brown side patch tucked in his waistband. The male told Mr. Sinaga to keep walking. Mr. Sinaga walked to a nearby hotel and called the police.

[5] Mr. Sinaga gave the following description of his assailant:

• Male black, dark complexioned, 5’6” tall, approximately 30 years old with an average build. He had a scruffy beard and did not wear glasses. The male wore a black cap which had a brim. It had red writing on the forehead area. The writing started with the letter “V”.

• The male had earrings in both ears and a silver necklace with a cross on it. The male wore a black t-shirt and blue jeans. He had a Jamaican accent.

[6] Mr. Sinaga’s stolen phone was an I-Phone 4 which he had purchased three months earlier. It had an identification number which Mr. Sinaga subsequently gave to the police.

[7] Mr. Sinaga gave a statement to the police later that evening. The police showed him two photo line-ups on August 7, 2012, each with a picture of Mr. Bailey. The first had a picture of Mr. Bailey which had been taken in March 2012. Mr. Sinaga did not identify any of the persons in the photo line-up.

[8] Mr. Sinaga identified a photo of Mr. Bailey which had been taken after the police arrested Mr. Bailey, as that of the robber. He testified that he was “pretty sure” that the person shown in the photograph he had selected was indeed that of the robber.

[9] Two days after the robbery which lasted five to ten minutes, Mr. Sinaga’s friend told him he had seen a picture of the robber in a newspaper. Mr. Sinaga maintained however, that he had not seen Mr. Bailey’s photograph in the news.

[10] Mr. Sinaga did not give a description of the robber’s facial features to the police since he did not get a good look at the robber’s face.

Vimmi Dhingra

[11] Ms. Dhingra was waiting for a bus at Dixie Road and Bovaird Drive at approximately 10:57 p.m. when a black male approached her from the back of the bus stop. He looked at the bus schedule chart on a nearby pole and then asked her for the time. She retrieved her cellphone from her bag and told him it was 10:58 p.m. Thereupon, he approached her inside the bus stop, pulled out a black gun from his waist and held it within inches from her abdomen. He then demanded her cellphone and money.

[12] The male snatched Ms. Dhingra’s purse and the two engaged in a short tug of war for it. At one point Ms. Dhingra told the male that the bus was coming. The male then fired a shot into the grass. Ms. Dhingra released her purse. The man then ran to a van which was parked nearby and got into the passenger seat. It then sped away. Ms. Dhingra believed that the vehicle was a van because the licence plate was elevated.

[13] Ms. Dhingra gave the following description of the robber:

• Male black, dark complexioned, 5’5” to 5’6” tall, skinny build and in his early 20s.

[14] The male wore a black short sleeved t-shirt, a black baseball cap and dark coloured jeans, which were either blue or black. Ms. Dhingra could not describe the robber’s facial features in any detail and could not recall if he had any scars on his face. The robber did not have any beard or moustache. Ms. Dhingra did not see him with any earrings.

[15] Ms. Dhingra saw the robber’s face in a newspaper four or five days later, after members of her family told her that the newspaper had a picture of the robber. She identified Mr. Bailey in court as the person who robbed her.

[16] Ms. Dhingra could not recall if the cap which the robber wore had any writing on it. The incident lasted approximately 1 ½ minutes.

Bhupinder Singh

[17] 23 year old Bhupinder Singh was walking to a bus stop at Derry Road and Goreway Drive in Mississauga at approximately 11:20 p.m. when he noticed that a black male was following him. He was talking to his friend on his Blackberry cellphone when the male struck the back of his head from behind. He stumbled and released his cellphone. He looked back as he stood up and saw the male holding his phone. He asked the male for the phone. The latter refused and claimed that the phone now belonged to him.

[18] The male then pulled out a black handgun from his waist and pointed it at Mr. Singh. Mr. Singh went backwards. The male threatened to shoot him and then pressed the trigger. Mr. Singh heard a “click” sound. The male then turned around and ran to a Dodge Caravan a short distance away. He entered the passenger side and shouted to the female driver, “drive, drive.” The van then sped away, but not before Mr. Singh wrote down its licence number.

[19] Mr. Singh gave the following description of the robber:

• Male black, normal build, clean shaven and approximately 25-30 years old. The male wore a black t-shirt, black pants and had a baseball cap. He was clean shaven. Mr. Singh was unsure whether the male wore earrings. The male also wore a silver chain around his neck.

[20] Mr. Singh estimated that the male was approximately 5’10” to 5’11” tall but noted that the robber was standing on higher ground than where he stood.

[21] Mr. Singh could not describe the robber’s facial features. The robber did not wear glasses.

Simone Campbell

[22] Ms. Simone Campbell, an on again off again girlfriend of Mr. Bailey, testified that her phone number at the time of the incident was 647-979-7330 while Mr. Bailey’s number was 647-989-7330. Mr. Bailey and herself repeatedly texted each other on July 20, 2012, but did so in an attempt to rekindle their relationship. She read a number of offensive text messages sent to her from Mr. Bailey’s phone in the early hours of July 20, 2012, and called him back at approximately 9:00 a.m. that morning for an explanation for the messages. Mr. Bailey denied sending the text messages. Ms. Campbell admitted that she had visited Mr. Bailey every month since he was incarcerated and repeatedly stated that she wanted to continue her relationship with him.

[23] Constable Hynek, a member of the Toronto Police Service, attended 43 Goldwin Avenue, Toronto on July 20, 2012. Ms. Natalie Brown, Mr. Bailey’s girlfriend, reported that her van had been stolen. The vehicle in question which, unbeknownst to Ms. Brown, had been seized by the Peel Regional Police Force, turned out to have been the vehicle involved in the three robberies.

[24] Ms. Brown later attended 12 Division in Toronto accompanied by Mr. Bailey. Mr. Bailey identified himself with a Security Card with his picture on it. He indicated that his back pack which contained personal and work papers were in the stolen van.

[25] The officer provided the following description of Mr. Bailey:

Male black, 5’ 7” tall, skinny build. Mr. Bailey had a goatee and was unshaven. He wore a blue T-shirt and blue jeans. Mr. Bailey had a Jamaican accent.

[26] Mr. Khawaja purchased two cellphones from a person who identified himself as Mr. Bailey in the afternoon of July 20, 2012. Their identification numbers matched that of the phones stolen from Mr. Sinaga and Ms. Dhingra. The male showed a Security identification card to Mr. Khawaja which was different from the card which Mr. Bailey showed to Constable Hynek. However, both cards had the same licence number and expiry date. Mr. Khawaja stated that the black male and the person shown in the identification card produced by the male were one and the same. Mr. Khawaja had never seen the man before. He did not recall seeing any scars on the man’s face. Mr. Khawaja is 5’ 8” tall. The male was shorter than he was.

[27] A search of Ms. Brown’s van led to the recovery of three of the bus tickets stolen from Ms. Dhingra, a black baseball cap with the word “devils” written in red letters in the front area of the cap and a black back pack with a letter of termination dated July 19, 2012 addressed to Mr. Bailey.

[28] Police officers also located two black short sleeve T-shirts in Ms. Brown’s home.

[29] Ms. Natalie Brown testified that she had been dating Mr. Bailey for a few weeks before July 19, 2012. On the latter date, Mr. Bailey dropped her off at a bingo close to the home sometime after 8:00 p.m. He later picked her up after 11:00 p.m. and then drove her home where she remained for the rest of the evening. The next morning she discovered that her van had been stolen. She then called the police. She later went to a police division accompanied by Mr. Bailey who gave a report about his belongings which had been in the “stolen van”.

[30] Ms. Brown identified the black cap with the red lettering found in her van as the property of Mr. Bailey. She stated that two black short sleeved t-shirts found in her apartment belonged to Mr. Bailey which he used for work. She confirmed that her phone number at the time was 416-409-5837. She denied being in Brampton with Mr. Bailey during the evening of the robberies.

[31] The Crown tendered an Agreed Statement of Facts; the cellphone records of Mr. Bailey, Ms. Brown and Ms. Campbell on July 19 and 20, 2012; and a chart showing the Rogers Tower locations and cellular phone usage of Mr. Bailey and Ms. Brown from 5:00 p.m. July 19, 2012, to the early morning hours of July 20, 2012.

POSITION OF THE PARTIES

[32] The Crown submits that the identification evidence in this case is corroborated by forensic evidence that implicates Mr. Bailey and links him to all three robberies. The descriptions of the robber are all consistent and match Mr. Bailey. Secondly, there were items of personal property in the van that were used in the robbery. Thirdly, a hat which matched that described by the victims with Mr. Bailey’s DNA was found in the van used in the robbery. Fourthly, Mr. Bailey sold two of the stolen cellphones within 24 hours following the robberies. Fifthly, the cellphone records clearly confirm that Mr. Bailey and Ms. Brown were both involved in the robberies.

[33] The Crown submits that the cumulative weight of this evidence constitutes proof of Mr. Bailey’s guilt beyond a reasonable doubt.

[34] The defence concedes that the similar fact evidence establishes that the same male committed the robberies. However, the defence submits that the identification evidence in this case falls short of the requisite proof beyond a reasonable doubt given that:

1. None of the victims described the facial features of the robber;

2. None of the victims had a good look at the robber’s face;

3. In addition to the inherent frailties of identification evidence, there are grave concerns in this case about cross-cultural identification;

4. One of the victims gave contradictory evidence about the height of the robber and whether or not he had facial hair;

5. The black cap found in Ms. Brown’s van, while similar to that described by the victims, did not have writing which started with the letter “V”;

6. None of the witnesses observed the distinctive scars that Mr. Bailey has on his face;

7. Mr. Bailey’s post offence conduct is consistent with his innocence in that:

a. Mr. Bailey voluntarily attended at 12 Division to report that his possessions in the van had been stolen;

b. Mr. Bailey sold two of the cellphones given to him by Ms. Brown and gave the buyer his identification card; and

8. The logs of the cellphones of Mr. Bailey and Ms. Brown do not reveal who was using the phones on the night of the robbery.

LEGAL PRINCIPLES

[35] A number of legal issues arise in this case each of which will be discussed before an analysis of the evidence.

[36] The Crown clearly bears the burden of proving its case beyond a reasonable doubt. Even if I do not believe Mr. Bailey’s testimony or conclude that it is incapable of raising a reasonable doubt in the Crown’s case, I must nevertheless be satisfied of Mr. Bailey’s guilt beyond a reasonable doubt based on the evidence I accept.

IDENTIFICATION EVIDENCE

[37] The inherent frailties of identification evidence require me to carefully review the testimony of the three victims in this trial. The very fact that they all appear to be credible and trustworthy, does not lead inexorably to a conclusion that they are reliable: see R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.).

[38] In determining the reliability of identification evidence where the honesty of the witnesses is not in dispute, I must judiciously address the following questions set out in R. v. Gonsalves (2008), 2008 CanLII 17559 (ON SC), 56 C.R. (6th) 379 (Sup. Ct.), para. 39:

1. Was the suspect a complete stranger or known to the witness?

2. Was the opportunity to see the suspect a fleeting glance or something more substantial?

3. Was the setting in the darkness of night or in well-illuminated conditions?

4. Was the observation by the witness in circumstances of stress?

5. Did the witness commit the description to writing or did he or she report the description to the police in a timely fashion?

6. Is the witness’ description general, generic or vague or is there a description of detail including distinctive features of the suspect and his clothing?

7. Were there intervening circumstances, capable of tainting or contaminating the independence of the identification between the witness’ initial sighting of the suspect and the rendering of the descriptive account to the police or to the court?

8. Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely, has the witness’ description of the suspect failed to include mention of a distinctive feature of the accused?

9. Is the eyewitness’ identification unconfirmed?

[39] The following factors could be added to those set out in Gonsalves:

1. If a witness sees a photograph of the accused in a photo line-up, has that unfairly affected the witness’ ability to identify the accused in court proceedings? R. v. Miaponoose, at p. 445.

2. Did the line-up procedure, in person or by way of photographs, wrongly single out the accused from other photographs in the line-up?

3. How sure was the choice of a witness when he or she identified a suspect in a photo line-up?

[40] Additionally, issues associated with cross-cultural identification which arise where a witness or witnesses testify that all persons of a specific race appeared to look similar to them may have some bearing in this case: see R. v. Argueta, 2011 ONCJ 577, at para. 151.

SIMILAR FACT EVIDENCE

[41] Similar fact evidence is presumptively inadmissible. The prosecution bears the onus, on a balance of probabilities, to prove that the probative value of such evidence in relation to the issue in question outweighs its potential prejudice and is therefore admissible: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[42] Generally, in a multi-count indictment, evidence related to one count cannot be used as evidence relating to another count in the indictment. An exception to this rule is similar fact evidence but only if its probative value outweighs its potential prejudice.

[43] In determining the admissibility of similar fact evidence adduced to prove identity, the Supreme Court of Canada noted in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 50 that:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature or a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act.

[44] The Court in Arp, established the following two conditions for the admissibility of similar fact evidence on the issue of identification at para. 48:

(1) The trial judge must assess the degree of similarity in the manner in which the acts were committed to determine the likelihood that the same persons committed the similar acts.

(2) There must be some evidence that the accused committed the similar acts.

[45] The similar fact evidence, to be admissible, need not be conclusive of the issue on which it is proffered: see Handy, at paras. 94-97.

[46] A principled approach to the admission of similar fact evidence will depend on a finding that the accused’s involvement in the alleged similar counts is unlikely to be the product of mere coincidence: see Arp, at para. 45. When the force of these similar circumstances defies coincidence or some innocent explanation, the probative value of the similar fact evidence outweighs its prejudicial effect thereby making the evidence admissible: see Handy, at para. 47.

ANALYSIS

[47] Mr. Bailey testified that in July 2012 he lived with a friend called John and also with his then girlfriend, Natalie Brown. He communicated on a regular basis with a former girlfriend, Nicole Campbell. Ms. Brown did not know that he communicated regularly with Ms. Campbell. He had a cellphone which he had received from Ms. Campbell.

[48] On July 19, 2012, he attended a work-related meeting during which he was terminated. Following this meeting he went to Ms. Campbell’s residence where he spent some time. He then went to Ms. Brown’s residence.

[49] Ms. Brown later drove him to his father’s Brampton residence in the early evening of July 19, 2012. Upon arrival, he picked up his mail and Ms. Brown headed back to her Toronto residence. Along Highway 7, she stopped at a plaza to purchase some sheets. Mr. Bailey remained in the van and sent a number of text messages to Ms. Campbell.

[50] Upon her return to the van, Ms. Brown became upset with Mr. Bailey. She reproached him for not coming to the store with her and accused him of being on the phone. He got out of the vehicle and advised her that he would accompany her to the store if she wished.

[51] However, Ms. Brown started to accuse him of spending time with other women. She then got into her van and drove off, leaving him stranded on Highway 7. His cellphone was left in the van.

[52] Mr. Bailey then went to a bus stop and took a bus home. He got there between 9:00 p.m. and 10:00 p.m. He spent the night at his home. The next morning, he took a bus to Ms. Brown’s residence to retrieve his belongings from her van.

[53] Upon arrival Ms. Brown gave him the keys to her vehicle. He proceeded downstairs to the vehicle but found it was not there. He went back to Ms. Brown’s apartment and told her that the van was missing.

[54] Ms. Brown appeared shocked. She went down to look for the van and confirmed that it was missing. Mr. Bailey told her to call the police. He dialled the number and handed the phone to Ms. Brown.

[55] Ms. Brown later told him that the police attended the residence. He told her that he wanted to go to the police division to report his property which had been in the stolen vehicle.

[56] He went to the division and showed the officer his security card. He spent the rest of the day with Ms. Brown.

[57] Ms. Brown told him that she wanted to sell her van to pay some bills. She told him she had two cellphones which she did not use.

[58] He then offered to sell the phones for her at a store he had previously visited. He sold the phones and gave the seller a copy of his security card. He told the seller that the phones belonged to him. He then gave Ms. Brown the money he had been paid for the phones.

[59] Mr. Bailey denied knowing at the time that the phones he received from Ms. Brown were stolen. He also denied any involvement in the robberies.

ANALYSIS OF MR. BAILEY’S TESTIMONY

[60] At first glance Mr. Bailey’s version of events sounds rather convincing. On closer scrutiny, however, his testimony raises serious questions about his veracity.

[61] In the first place, Mr. Bailey testified in a very glib and smug manner and essentially shifted responsibility for the robberies to Ms. Brown. He maintained that she unceremoniously dumped him off Highway 7 after she accused him of spending time with other girls. This testimony I find to be self-serving and inconsistent with Mr. Bailey’s own testimony that Ms. Brown did not know about Ms. Campbell.

[62] I am also very sceptical about Mr. Bailey’s testimony that Ms. Brown drove off with his cellphone and belongings in the van. He admitted that he used the phone virtually all the time yet claimed that he frequently left the phone all over the place. He clearly did so given the incontrovertible evidence from his cellular phone usage records entered as an exhibit on consent, that at 10:02 p.m. his cellphone and that of Ms. Brown were in the general vicinity of the Rogers cellphone tower located at 9418 Gore Road in Brampton.

[63] I am also sceptical about Mr. Bailey’s testimony that Ms. Brown left him stranded on Highway 7 because his lawyer never put it to Ms. Brown that she had done so. Neither did he put to her that Mr. Bailey had done repairs to her vehicle on July 19, 2012, or that she wanted to sell her van to pay some bills. I therefore give little or no weight to that part of Mr. Bailey’s testimony.

[64] The defence relies on Simone Campbell’s testimony as proof that someone other than Mr. Bailey was in possession of Mr. Bailey’s phone the night of the robbery. She testified that she received some offensive emails from Mr. Bailey’s phone which were sent after midnight on July 19, 2012. Mr. Bailey advised her on July 20, 2012, that he was not the sender.

[65] Ms. Campbell, however, is not a credible witness. She made no mention of this when she spoke to the police on July 22, 2013. Secondly, she has an interest in the outcome of this trial since she wishes to have an intimate relationship with Mr. Bailey. Indeed, she has visited him regularly in custody and has maintained regular telephone contact with him. Thirdly, she gave contradictory evidence about what happened on the morning of July 20, 2012. She initially stated that she saw the offensive emails after she woke up and then ten minutes later, called Mr. Bailey around 9:00 a.m. However, in cross-examination, she confirmed that between 6:39 a.m. and 7:15 a.m. she sent six text messages to Mr. Bailey and that he responded to her messages at 7:53 a.m.

[66] Additionally, it is rather strange that Mr. Bailey, who admitted to using his phone continuously throughout the day, never called his cellphone or made any efforts to retrieve it after he arrived at his home between 9:00 p.m. and 10:00 p.m. on July 19, 2012. Neither did he ask his friend John to use his phone. His lame excuse for not doing so was that his friend, John, made a fuss about everything.

[67] Furthermore, there are inconsistencies in Mr. Bailey’s testimony in chief and in cross-examination about the timing of his movements on the evening of July 19, 2012. For example, he testified in chief that he arrived at his home after being left stranded, between 9:00 p.m. and 10:00 p.m. When questioned in cross-examination he changed his testimony by stating that he arrived after 10:00 p.m. Additionally, Mr. Bailey testified in chief that Ms. Brown went shopping around 8:00 p.m. to 8:30 p.m. Given his testimony that he and Ms. Brown had earlier spent five to 10 minutes at his father’s Brampton home, he must have left the home between 7:30 p.m. and 7:45 p.m. before retracing his route home. That, however, would have virtually been impossible given that at 7:38 p.m., Ms. Brown’s cellphone was in the general vicinity of Highway 400 and 401 while she was on her way, according to Mr. Bailey, to his father’s home. Secondly, the cellphone records of Ms. Brown, which have been marked as Exhibit 21, show that her phone was located in the general vicinity of the home of Mr. Bailey’s father between 9:29 p.m. and 10:03 p.m. When confronted with this inconsistency, Mr. Bailey replied that he was no longer certain about the timing of his movements that evening.

[68] Additionally, Mr. Bailey admitted to lying to Mr. Kawaja about ownership of the two cellphones. What was his reason for doing so? After all, he claimed that he was merely helping Ms. Brown.

[69] I reject Mr. Bailey’s testimony about receiving the two stolen cellphones from Ms. Brown for an additional reason. Ms. Brown gave uncontradicted evidence that she had two cellphones, one which she used and another used by her teenaged daughter.

[70] Mr. Bailey had been dating her for a few weeks before July 19, 2012. It is highly unlikely that Ms. Brown would have owned these two additional phones which Mr. Bailey apparently knew nothing about.

[71] Mr. Bailey relies on his voluntary attendance at the police division as proof that he was not involved in the robberies. I disagree. By his own admission he believed at the time that the van had been stolen. He never thought that the police had towed the van away. For that reason, he had no difficulty producing his security card to the police.

[72] Mr. Bailey had no hesitation showing Mr. Kawaja his security card when selling the two stolen cellphones. This is not surprising given that he had no idea that the Peel Police Force was investigating Ms. Brown’s van in connection with the robberies. Furthermore, as Mr. Kawaja advised him, he required Mr. Bailey to present identification in order to sell the cellphones.

[73] The acceptance of Mr. Bailey’s version of events would lead me to the following scenario. After dumping Mr. Bailey on Highway 7, Ms. Brown picked up an unknown male and drove back to Brampton. Not only did she do so but this unknown male was similar to Mr. Bailey in height, complexion and build. Furthermore, this stranger who perpetrated the three robberies wore a cap strikingly similar to that owned by Mr. Bailey and additionally, wore a short sleeved black t-shirt similar to that worn by Mr. Bailey. The male also had a Jamaican accent as did Mr. Bailey. In my view, it would simply be preposterous that this extraordinary set of coincidental occurrences unravelled on the night of the robberies.

[74] For the above reasons, I find Mr. Bailey’s version of events to be unworthy of belief and incapable of raising a reasonable doubt in this case.

[75] I now turn to the remaining evidence called in this trial.

[76] In the first robbery the uncontradicted evidence is that at approximately 10:25 p.m. a black male, approximately 5’ 6” to 5’ 7” tall approached Mr. Sinaga and inquired about the bus schedule. The male repeatedly asked Mr. Sinaga to check the schedule on his phone. Mr. Sinaga’s friend tried to do the same without success. The male snatched the phone from Mr. Sinaga’s friend. The man then exposed a black handgun tucked in his waistband and ordered Mr. Sinaga and his friend to keep walking.

[77] Is there a high degree of similarity between this act and the other two incidents such that the probative value of the similar fact evidence outweighs its prejudicial effect?

[78] In the second incident, a black dark complexioned male, approximately 5’5” to 5’6” approached from the back of a bus stop and asked Ms. Dhingra about the bus schedule. Before he did so, he looked at a bus schedule chart just as the black male who robbed Mr. Sinaga earlier that evening. As she placed her phone back into her bag, the male approached her, pointed a small black gun at her and demanded that she give him all she had. The two struggled for Ms. Dhingra’s bag and the male fired a shot into the ground. He fled to a waiting van, got into the passenger seat and sped away.

[79] In the third incident, a black male struck Mr. Singh from behind as the latter approached a bus stop. The male retrieved Mr. Singh’s cellphone from the ground and then took out a small handgun from his waist when Mr. Singh approached him to demand the return of his phone. The male pointed the gun at Mr. Singh who heard a “click” when the male pressed the trigger. Mr. Singh backed off and the male fled to a waiting van which he entered through the passenger door. The black female driver then sped away.

[80] Is there a unique trademark or signature or a series of significant similarities between these three acts?

[81] In my view there is. The similarities are more striking in the first two acts than in the third, but the similarities are no less significant in all three.

[82] All three incidents occurred in the evening. All involved the robbery of an individual at a bus stop within a one hour period. In all three, the threat of violence with a black handgun, or actual violence as in the third incident, was present. In the first two incidents, the black male initially expressed an interest in finding out the bus schedule as an obvious pretext to have the two victims retrieve their cellphones. In the first two incidents, he snatched the phones after the victim had innocently tried to obtain the information requested by him.

[83] The black male did not ask Mr. Singh to check the bus schedule, but as the black male had done in the second incident, he approached from behind. Unlike the first two incidents, he struck the victim from the back, but as the black male had done in the two previous incidents, he stole the victim’s phone. He reached for his gun from his waist when Mr. Singh approached him just as the black male had done in each of the two previous incidents. He then entered a waiting van through the passenger door in a manner similar to the black male in the second robbery.

[84] In my view, the manner in which these three robberies were committed is strikingly similar. Alternatively, the incidents possess a series of significant similarities such that in all likelihood, they were committed by the very same individual. It is not necessary for the court to find that the incidents were identical, merely that they were strikingly similar or that there were a series of significant similarities which together establish an “objective unlikelihood of coincidence”: see R. v. Harvey (2001), 2001 CanLII 24137 (ON CA), 57 O.R. (3d) 296 (Sup. Ct.), at para. 62.

[85] I must also consider whether the similar acts were that of Mr. Bailey. The similar fact evidence need not be conclusive of the issue of identity.

[86] The evidence of identity referable to the similar fact evidence is as follows:

(1) The photo lineup evidence related to the robbery involving Mr. Sinaga.

(2) The identification evidence of Ms. Dhingra.

(3) The evidence of the distinctive cap worn by the robber and the DNA evidence that linked Mr. Bailey to a similar cap located in the getaway van.

(4) The height, build, complexion and accent of the robber match that of Mr. Bailey.

[87] This evidence does not conclusively establish the identity of the robber. However, it constitutes some evidence of identity that must be considered in deciding whether the Crown has proven Mr. Bailey’s guilt beyond a reasonable doubt. The significant similarities in the three incidents and the evidence linking Mr. Bailey to them, render the similar fact evidence admissible.

[88] I must now consider all the evidence related to Mr. Bailey’s involvement in each act. In order to find Mr. Bailey guilty of these robberies and the related three charges of use of an imitation handgun in the commission of an indictable offence, I must be satisfied beyond a reasonable doubt that Mr. Bailey’s seeming involvement is not a matter of mere coincidence. To find Mr. Bailey guilty I must conclude that the only rational conclusion I can draw from all the evidence is that Mr. Bailey was the black man who robbed Mr. Sinaga, Ms. Dhingra and Mr. Singh.

[89] Mr. Sinaga’s general description of the robber matches Mr. Bailey. However, it likely matches thousands of other dark complexioned black males. Mr. Sinaga picked out Mr. Bailey’s photograph out of the second photo lineup he viewed but this identification, in and of itself, does not establish Mr. Bailey’s guilt to the requisite standard of proof required. It is merely some evidence of the identity of the robber.

[90] In the first place, Mr. Sinaga failed to pick out Mr. Bailey’s photograph in the first photo lineup he viewed. Secondly, he picked out two other photographs in the second photo lineup which he described as similar to that of the robber. The fact that Mr. Sinaga, like Ms. Dhingra and Mr. Singh, could not describe the robber’s facial features raises questions about the photo lineup evidence relied upon by the Crown. Thirdly, while Mr. Sinaga picked out Mr. Bailey’s photograph as that of his robber, he conceded in cross-examination that he was “pretty sure”. That degree of certainty falls short of the requisite proof to establish the identity of the robber.

[91] Similarly, Ms. Dhingra testified that she saw a picture of her robber four to five days following the incident after a family member advised her that a picture of the robber was in a newspaper. She testified that she recognized Mr. Bailey’s photograph before she read the newspaper article identifying him as the robber. Ms. Dhingra also identified Mr. Bailey in court as the person who robbed her.

[92] However, this evidence suffers from the same frailties as that of Mr. Sinaga. Absent any description of the robber’s facial features, how could Ms. Dhingra be positive that Mr. Bailey was the robber? The incident lasted a mere minute and a half. She was not staring at the robber during the whole time. She was also frightened. She testified that the robber did not have a beard or moustache, unlike Mr. Sinaga who testified that his assailant had facial hair.

[93] In assessing her testimony regarding the identity of the robber, I am mindful of the perils of cross cultural identification. All three victims of the robbers are of South Asian heritage. They may view persons of a certain ethnic background as all looking the same. Indeed, Mr. Kawaja testified that all black males look alike or something to that effect. I therefore cannot place much significance on the fact that Ms. Dhingra saw a photograph of the robber four or five days following the incident or her docket identification of Mr. Bailey.

[94] But there is other evidence that points to the identity of the robber. Mr. Sinaga testified that the robber wore a black cap which had red lettering on the forehead area. The lettering started with the letter “V”. Ms. Dhingra also testified that her robber wore a black cap but she did not know whether it had any lettering. That is not altogether surprising given that the robbery happened very quickly. Mr. Singh also testified that the robber wore a baseball cap, although he did not pay attention to the colour.

[95] The significance of Mr. Sinaga’s testimony is that a black cap with red lettering was located in a van, the licence plate of which connected it to the third robbery. The lettering did not commence with the letter “V” but significantly, the lettering on the cap found in Ms. Brown’s van had red lettering on the forehead and the word “Devils”. Even if the word did not start with the letter “V” it is significant, at the very least, that the man Mr. Sinaga identified as the robber had the same height and build as Mr. Bailey and also wore a cap strikingly similar to one worn by Mr. Bailey. The DNA evidence found on the cap confirms Ms. Brown’s testimony that it belonged to Mr. Bailey.

[96] Secondly, Mr. Sinaga testified that the robber wore a black t-shirt and blue pants. Ms. Dhingra testified that the man who robbed her wore a black t-shirt with “half sleeves” and blue or black jeans. Mr. Singh similarly testified that the man who forcefully stole his phone wore a black t-shirt and black pants.

[97] Undoubtedly, black clothing is ubiquitous in wardrobes across the city. Mr. Bailey, we learnt from his girlfriend, Natalie Brown, owned the two black t-shirts found by the police within her residence. That discovery, in and of itself, is insufficient to establish Mr. Bailey’s involvement, but it constitutes some evidence to be considered in the assessment of that guilt.

[98] More significant is the evidence that links Mr. Bailey to the vehicle involved in the robberies. Constable Hynek’s testimony and that of Ms. Brown clearly establish ownership of the van. Ms. Brown’s uncontradicted evidence confirms that in the evening of July 19, 2012, Mr. Bailey was inside that van. Ms. Brown claims that Mr. Bailey drove the vehicle after he dropped her off at bingo but both Ms. Dhingra and Mr. Singh gave credible evidence that the van was being driven by a third party at the time of the two robberies. Mr. Singh went further and testified that a black woman was the driver. The Agreed Statement of Facts includes a statement from Mr. Bailey’s mother-in-law that Ms. Campbell was not the driver of the van when Mr. Bailey visited her home on July 19, 2012. Additionally, I note parenthetically that Ms. Brown testified that she could not recall being with Mr. Bailey in Brampton during the evening of the robbery. I disbelieve Ms. Brown for two reasons and indeed find as a fact that she was with Mr. Bailey during the evening of the 19th of July.

[99] First, the cellphone records which the defence concedes as being accurate show that from 10:11 p.m. to 10:34 p.m. Ms. Brown’s telephone was located within the general vicinity of Steeles Avenue and Airport Road and also Williams Parkway and Bramalea Road, in close proximity to the first robbery. Even if the Roger’s Tower locations do not give the precise location of the phones, they nevertheless place it in Brampton which Ms. Brown testified she never visited on July 19, 2012. The fact that Ms. Brown testified that she had her cellphone with her that night confirms that she must have been in her van at those important times.

[100] Secondly, when the Crown asked Ms. Brown specifically whether she was with Mr. Bailey in Brampton during the evening of July 19, 2012, she paused for four to five minutes and then asked whether she was obliged to answer the question. When advised that she had to, she testified that she could not recall.

[101] The fact that Ms. Brown was less than forthright and unwilling to testify about the robberies was further borne out by her attendance in court on November 25, 2013, with a note from her doctor indicating that “she is not emotionally stable enough to state reasonable evidence in a court of law.” I therefore reject Ms. Brown’s testimony that Mr. Bailey had dropped her off at bingo on July 19, 2012, and had picked her up after 11:00 p.m. that evening following which they had gone to her home.

[102] The three bus tickets stolen from Ms. Dhingra were found in the van in the front passenger seat. Both Ms. Dhingra and Mr. Singh testified that the robber entered the passenger seat of the van.

[103] The police also recovered Mr. Bailey’s back pack in the van linked to the robbery in the early morning hours after the robbery. The bag contained a letter of termination addressed to Mr. Bailey dated the very same day of the robberies.

[104] Constable Hynek’s testimony, which was largely uncontradicted, places Mr. Bailey in the company of Ms. Brown at 12:00 midday on the day following the robbery. He received a copy of Mr. Bailey’s security identification card which contained a distinctive number on that card.

[105] The significance of this identification emerges in Mr. Kawaja’s testimony. A black male who sold cellphones stolen from Mr. Sinaga and Ms. Dhingra had in his possession a security identification card which, although different from that which Mr. Bailey showed to Constable Hynek, had the identical number and the expiry date on the security card shown to Mr. Kawaja. Significantly, Mr. Kawaja, who is 5’8” tall, described the black male who sold him the phones as being shorter than him. Mr. Bailey confirmed that he was the one who sold the cellphones to Mr. Kawaja.

[106] Mr. Bailey is inexorably linked to the robberies by an examination of all the evidence that I accept as credible. This includes the physical description of the robber by the victims, Mr. Sinaga’s identification of his photograph, his relationship with the owner of the getaway vehicle, his DNA on the black cap found in the van, the black t-shirts found in Ms. Brown’s residence which matched that worn by the robber, the evidence that Mr. Bailey was a co-occupant of the van during the evening of the robberies, his property located in the van and his sale of two of the stolen cellphones to Mr. Kawaja.

[107] Added to this are the cellphone records that clearly confirm that Ms. Brown, who admitted that she had her cellphone that evening, was in the general vicinity of the first two robberies between 10:15 p.m. and 10:34 p.m. and Mr. Singh’s testimony that a black female drove the getaway van which licence plate matched that of Ms. Brown’s vehicle. The fact that there is no evidence that Ms. Brown’s vehicle was stolen or occupied by another male during the evening of July 19, 2012, further suggest that the only rational conclusion from this constellation of facts is that Mr. Bailey was the robber in all three incidents.

[108] There is some evidence, the defence suggests, which raises reasonable doubt about the identity of the robber. This includes Mr. Singh’s prior inconsistent testimony that his robber was 5’10” to 5’11” tall, that Mr. Bailey wears glasses while the robber did not and that Mr. Bailey voluntarily went to 12 Division – Toronto, and gave Constable Hynek his security identification card.

[109] Mr. Singh was not shaken in cross-examination that he may have mistaken the robber’s height because of the elevation of the ground behind the bus stop where the robber stood. A photograph of the scene admitted as an exhibit in this trial confirms that the ground at the back of the bus stop was indeed higher than that where the bus stop stood. Mr. Singh may not have stated so explicitly when he testified in the Preliminary Hearing in May 2013, but based on his uncontradicted version of events, it is clear that the robber, who was behind him, was on higher ground than he had been at the time of the robbery.

[110] The fact that Mr. Bailey wore glasses during his trial does not mean that he was not involved in the robberies. Indeed, except for a few short periods, he did not wear his glasses when he testified. To that extent, it would have been a simple thing for him not to have worn his eyeglasses during the robberies.

[111] The defence also suggests that by failing to observe the distinctive scars that Mr. Bailey possesses above one eye and on the bridge and tip of his nose, the identification evidence falls short of the requisite standard of proof beyond a reasonable doubt.

[112] I disagree. The court had difficulty observing these scars under the ideal lighting conditions of the courtroom. I was only able to see them when defence counsel pointed them out in court after he asked Mr. Bailey to stand in the witness box. In less than ideal lighting conditions and given Mr. Bailey’s complexion and the cap he wore during the robberies, it would have been virtually impossible for the victims to have seen what defence counsel has generously described as distinctive scarring.

[113] In my view, the Crown has proven its case against Mr. Bailey beyond a reasonable doubt. Accordingly, he is convicted of all six charges.

André J.

Released: December 16, 2013

COURT FILE NO.: CRIMJ(P) 294/13

DATE: 2013 12 16

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

REVINGTON BAILEY

REASONS FOR JUDGMENT

André J.

Released: December 16, 2013