COURT FILE NO.: CRIMJ(P) 1485/11
DATE: 2013-01-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Lemke, for the Crown
- and -
MAURICE BECKLES
B. Moss, for the defendant
HEARD: November 13, 14, 15, and 16, 2012
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
[1] Maurice Beckles, the accused, stands charged:
That he, on or about the 14th day of July, 2010, at the City of Mississauga, in the Central West Region, did rob Alexander Merrick contrary to section 344 of the Criminal Code of Canada; and
That he, on or about the 14th day of July, 2010, at the City of Mississauga, in the Central West Region, did use an imitation firearm to wit: an imitation handgun while attempting to commit the indictable offence of robbery, contrary to section 85(2)(a) of the Criminal Code of Canada.
[2] The accused pleaded not guilty to these charges.
EVIDENCE
Witness Alexander Merrick
[3] Mr. Alexander Merrick (Merrick) is the owner of Alexander Jewellers located at 221 Queen Street, Streetsville (Mississauga).
[4] On July 14, 2010, Merrick opened his store for business at 10:00 a.m. or shortly thereafter. He was standing near one of the front jewellery showcases talking on the phone when two young black males entered the store through the front door.
[5] One of the individuals was wearing what turned out to be a phony police badge around his neck as well as a baseball cap and sunglasses. They identified themselves as undercover fraud investigators.
[6] The individual with the badge stood in front of Merrick while the other male stood behind Merrick. The phone was taken out of Merrick’s hand. The individual with the badge then took out what appeared to be a gun and motioned for Merrick to move to the back of the store. Merrick grabbed the gun with both hands and a struggle ensued.
[7] Merrick was pushed and dragged to the back while being punched to the head and neck. One of the individuals attempted to place plastic cuff ties on Merrick’s wrists. A showcase was knocked over.
[8] At the back of the retail area is a door leading to a back room. During the scuffle the door was knocked off its hinges. In the back room, Merrick was able to grab a tool and with it struck a blow to the individual with the gun. Merrick was then punched in the eye and face.
[9] Up until this point, there were no other persons in the store. While Merrick and the two individuals were in the back room, two female customers entered the store. One the robbers, the smaller one, left the store. The other, with the gun, told Merrick to be quiet and that he did not want to hurt him. This individual then left the store as well. Both left the store by the front door.
[10] Merrick stumbled out of the back room and told the customers to call police and he activated the silent alarm.
[11] Merrick estimated that the individuals came into the store at approximately 10:30 a.m. The individual with the gun was described as wearing a dark cap and a silver and leather police badge on a chain. He was said to be a black male, with a goatee and slender face. He was of medium build and in his mid 20s. He was wearing a navy blue long sleeved ribbed sweater and dark pants.
[12] The second individual was a black male, shorter and with a round face. He was wearing a green shirt and dark pants and was of medium build.
[13] Merrick described the gun as not a revolver and more in the style of what the police use.
[14] Merrick was asked to look at Exhibit 5 which is a picture of a blue baseball cap. It was identified as the one worn by the individual with the gun. It was found on the floor of the store after the fact.
[15] As a result of the struggle, Merrick had a number of cuts and contusions and required staples in the top of his head. He also had to see an ophthalmologist with respect to a punch he took to the eye. He had injuries to his right hand.
[16] Merrick also described the individual with the gun as having gold rimmed sunglasses. While Merrick did not see them come off, he testified that in the back room the individual with the gun was not wearing them.
[17] On March 7, 2011, Merrick, at the request of the Peel Regional Police, participated in a photo line up. He was individually shown pictures of 12 black men. Exhibit 10 is three pictures chosen by Merrick which he thought matched the two robbers.
[18] The photo line up involved a process where Merrick was shown 12 pictures, one at a time. Each was in an envelope. For each picture Merrick had to take the picture out of the envelope and mark on it a yes if he had seen the individual before or a no if he had never seen the individual before. Upon marking the picture with a yes or no, Merrick had to the return the picture to its envelope and move on to the next envelope.
[19] On cross examination, Merrick agreed that he had a better opportunity to observe the individual with the gun because he was always in front of him.
[20] He also testified that the doors to the back room were two in number and that, as a result of the struggle, one came off its hinges and the other was hanging from the top hinge.
[21] Merrick also acknowledged that, at one point, one of the individuals tried to fix or close the doors to the back room.
[22] With respect to the photo line up, Merrick admitted that identifying the individuals involved was somewhat difficult. He thought it would have been easier if all the pictures were laid out in front of him. The photo line up was videotaped and audio recorded and the recording was made Exhibit 11. Merrick commented on the difficulty of picking out differences in persons with different skin colour or features such as Blacks or Asians.
[23] On cross examination, four pictures were discussed with Merrick. With respect to Picture 1, Merrick marked this as a no but said it was a hard call. It was closer to a maybe. He said that it looked something like the shorter guy. Merrick identified Picture 6 as the guy with the gun but still had some doubts. Merrick thought Picture 9 was much like Picture 6, being the guy with the gun. Merrick identified Picture 10 as the shorter individual who is alleged to be the accused.
Witness Janice Ing
[24] The second Crown witness was Janice Ing (Ing). She entered the store at approximately 10:30 a.m. along with her 14 year old daughter. She had never been to the store before but on a recommendation went to have a ring made for her husband as their 25th wedding anniversary was approaching.
[25] At the time of her testimony, Ing was retired but had worked 25 years in the corrections system, rising to the rank of lieutenant. She felt, as a result of her job, she had developed good observational skills.
[26] Ing testified that when she opened the door to the store she saw a man at the back struggling with what she called a bifold door. She testified he seemed frantic and was trying to put the door back in place. Ing, thinking this man worked at the store, said good morning but did not receive a response. She found that unusual. She then went to look at some rings in the display cases.
[27] Ing then testified that she heard a noise and a man came out of the back flailing his arms and bleeding. This man asked her to call 911 and said there had been a robbery. Ing made the call and then went out to see if she could see anyone running. She then returned to the store and located the owner who was at that point at the back of the store with a cloth to his head.
[28] Ing testified that she watched the man trying to put the door back in place for five or six seconds. She said she was trying to ascertain what type of person he was who was not greeting her as a customer. She testified that she made direct eye contact.
[29] Once the individual finished with the door she did not see him again nor did she see the other individual. The only other person she saw in the store was the owner.
[30] Ing described the person she saw as male, black, short hair, clean shaven, soft features, with warm eyes. He was six feet tall with a dark complexion.
[31] Ing testified that she saw a dark baseball cap on the floor near the display case at the front. She also noted a display case had been moved and another opened. There were two watches on the floor and a flip flop. Merrick testified that he had been wearing sandals at the time of the incident.
[32] This witness appeared to have good observational skills as she retained a significant amount of detail. Her answers were precise.
[33] Ing was also asked to participate in a photo line up which took place on July 28, 2012. The audio video recording of this procedure was made Exhibit 15. Ing was shown 12 separate photographs each in its own envelope. She too had to mark on each picture as she looked at them individually a yes if she recognized the person or no is she did not.
[34] Exhibit 14 is the two pictures she marked with a yes. She testified that Picture 9 she thought might be the guy but when she looked at Picture 11, she knew this was the guy she saw, focusing on his eyes and the overall look.
[35] Ing testified that in her mind she had a very clear version in her head of what the guy she saw looked like. She did say again the guy she saw was clean shaven. She thought Picture 11 was the guy because of his dark skin and his eyes. After seeing Picture 11 she was sure the man in Picture 9 was not the individual she saw. In cross examination, she testified that she was sure the man in Picture 11 was the guy she saw in the store working with the doors.
Witness Constable Derrick St. Denis
[36] The next witness was Constable Derrick St. Denis of the Peel Regional Police. At the time of the offence, he was with the forensic bureau and collected evidence at the crime scene.
[37] Exhibit 16 is copies of the pictures he took at the crime scene. The items seized for analysis were as follows:
101 sunglasses missing a lens;
102 single sunglass lens;
103 zip ties found on the floor;
104 baseball cap;
105 swab taken from a smear found on a display case;
106 swab taken from a smear on the back door;
107 swab taken from a smear taken from a cupboard door in the back room.
[38] Items 101 and 102 were analyzed by the officer but did not provide any fingerprints. Items 101, 104, 105, 106, and 107 were sent to the Centre for Forensic Sciences for analysis, as was item 201, which was a blood sample taken, on consent, from the accused.
[39] No fingerprints were obtained at the scene.
[40] There are no issues with respect to continuity or the handling of this evidence.
Witness Dr. Warren Trevor Claxton
[41] Dr. Warren Trevor Claxton, from the Centre for Forensic Sciences, was called as a Crown witness. He was qualified on consent as an expert in the analysis of bodily fluids and DNA. He was the expert who analysed the samples in issue.
[42] The glasses and missing lens were analysed but there was insufficient DNA to construct a profile.
[43] The baseball cap was described as a size 7.5, navy blue in colour with the letters US on the front. A sample was taken from the headband or sweatband for DNA analysis. They were able to develop two DNA profiles. One was referred to as a minor profile which included the DNA of two individuals, one of which was male. This profile was not suitable for comparison.
[44] The other was described as a major DNA profile and was that of a single individual and was suitable for comparison. The analysis determined that Merrick could not be excluded as a source of the major profile. It was the evidence of Dr. Claxton that there was a 1 in 170 billion chance that someone would have this profile. In other words, only one person in 170 billion people would be expected to have this profile.
[45] I accept that the accused’s DNA was found on the hat.
[46] A major profile suggests a greater amount DNA was available. If someone wore that hat and was sweating, there would be more skin cells transferred to the sweatband and from these cells DNA could be extracted. The witness testified that it seemed unlikely that such an amount of DNA would have transferred to the hat from one wearing.
[47] What cannot be determined is when the DNA was transferred. DNA apparently can survive for a long period of time.
[48] The swab taken from the glass encasement tested negative for the presence of blood. The swabs from the door and the cupboard tested positive for blood. DNA analysis suggested the blood was that of Merrick.
[49] On cross examination, Dr. Claxton agreed that it could not be determined which profile existed before the other and confirmed the minor sample could not be used for comparison.
[50] Exhibit 19 was an Agreed Statement of Facts filed by the Crown. It was agreed amongst other things that, of the photos shown to Merrick, Photo 10 was the accused.
[51] It was also agreed that Photo 11, as shown to Ing, was the accused.
[52] The badge worn around the neck of one of the individuals was located at the rear of the store but no fingerprints were located on it.
Witness Katrina Hetherington
[53] The defence called one witness, Katrina Hetherington (Katrina), who, at the time of the robbery, was the girlfriend of the accused. At the time, she was working as an exotic dancer in the Greater Toronto area and in London, Ontario.
[54] Katrina testified that, on July 14, 2010, she and the accused were living together in a condominium she rented in Etobicoke on Lakeshore Road. She described her terms of employment as that of a freelance dancer. She danced where she wanted and only when she wanted. She had no schedule nor did she get paid by any of the establishments where she danced. She was paid by her customers.
[55] Katrina testified that her relationship with the accused ended on July 18, 2010 as a result of a domestic dispute.
[56] She testified that she lost touch with the accused shortly thereafter but reconnected with him within the last year when the accused was in jail.
[57] Katrina testified that July 14, 2010 was a Wednesday and she travelled to London that day to work at a club. She said that she would have woken up at between 9:30 and 10:00 a.m. as that was her usual wake up time. When she awoke the accused was in the apartment, having awoken earlier. He was dressed.
[58] The plan was that both of them would go to London and on the weekend attend a concert in Kitchener. She thought the concert was on Friday night. She testified that she got up and showered and packed. This witness testified that she and the accused left for London together and would have arrived in London 1.5 hours to two hours later. Katrina testified that in London they stayed at an apartment owned by someone who went by the name Swag. She did not know his real name.
[59] Upon arriving in London, Katrina and the accused got some food and hung out in the apartment. She went to work around 5:30 p.m. She would have worked until the club closed which would have been around 2:00 a.m. the next morning.
[60] Katrina testified that the next day she and the accused hung out together until she had to go to work. Katrina believed she only worked two nights on that trip. She testified that, on their return to Toronto early Sunday morning, the domestic incident occurred.
[61] On cross examination by the Crown, Katrina agreed that her memory of that period was not completely sharp. She agreed she went to London to work and the accused went to have fun.
[62] She thought the concert took place either Friday or Saturday, she was not sure, but she was positive they left on the Wednesday, the 14th.
[63] Katrina acknowledged she gave a statement to the police on October 12, 2012. She agreed in that statement she told the police that at the concert she was admitted to the club immediately but that the accused had to wait in line. The accused was not happy with this and this issue was the start of the dispute that led to the incident on the Sunday.
[64] Katrina testified that when she reconnected with the accused when he was in jail she still had some lingering feelings for him but did not want to reconcile. She testified they are still friends.
[65] She admitted she cannot recall the actual time she woke up on the 14th but that it was normal for her to wake up between 9:30 and 10:00 a.m. She said her body was trained for that. She could not say how long the accused had been up. She thought that had he left that morning before she got up she would have know n as she is a light sleeper.
[66] She couldn’t testify as to the exact time she went to work on the 14th but said that she always went to work around 5:00 to 6:00 p.m. She did specifically recall being at work that day.
[67] Katrina agreed with the Crown attorney that nothing memorable happened on the 14th that would make it stick out in her mind but that she knew that they went to London that day.
[68] Katrina agreed that she could not specifically remember what time they left for London and that in her statement she told the police they left around 11:00 a.m.
[69] It was Katrina’s evidence that they stayed in London three nights and went to the concert in Kitchener on the Saturday night and drove home to Toronto arriving around 3:00 a.m. on the Sunday.
[70] Katrina described herself as a very loyal person but stated she was not testifying out of loyalty. She was subpoenaed to testify but agreed she would have to come to court if asked.
[71] Katrina testified that she was first approached by the accused’s lawyer regarding her testimony. She denied that she was exaggerating her ability to account for the accused’s whereabouts on the 14th. She was quite sure the accused could not have stepped out for an hour that morning without her knowing.
[72] When asked if she knew the time the robbery was alleged to have occurred, she testified she was told around 8:00 - 9:00 a.m. She agreed that she would have been still asleep at that time. She acknowledged she could not specifically account for the accused’s whereabouts at this time because she was asleep.
[73] Katrina testified that when the lawyer told her of the date, July 14, 2010, she immediately realized this was four days before the domestic incident and that the accused could not have done what was alleged and she recalled the days leading up to the incident on the 18th.
[74] When asked why she did not speak to the police before October 2012, Katrina said that she thought speaking to the lawyer earlier in the spring was enough. She admitted she knew the police were calling her parents looking for her but she did not know why and did not think it was for this investigation.
[75] On cross examination, Katrina admitted she was able to look at cell phone records given to her by the accused’s lawyer and was able to see that she made a call from London on the 14th at around 2:00 p.m. She admitted she worked backwards from there in putting together what they did that day and when. She agreed they could have left for London as late as 12:00 p.m.
[76] While she testified that she considered her memory to be okay, Katrina agreed that she could not tell the police any of her old phone numbers. Apparently, she changes her cell number often.
[77] Katrina was shown Exhibit 14, being a picture of the accused, and agreed that usually he was much better kept than he appears in that picture. He was usually well groomed, clean shaven and a good dresser.
[78] She was also shown Exhibit 16, being a picture of the blue hat, and she testified that she did not recognize it and had never seen the accused with it. She agreed the accused had a lot of hats.
[79] Katrina testified that she and the accused have talked very little about these allegations and why he is in jail. She testified that at first he did not want to talk about it.
SUBMISSIONS
On Behalf of the Accused
[80] Mr. Moss, counsel for the accused, asked the Court to keep in mind that appellate authority is rife with the concerns regarding eye witness identification. With respect to such witnesses, we need to distinguish between credibility and reliability and that often eye witness evidence is based on honest mistake.
[81] With respect to the photo lineup procedures, the two eye witnesses, the victim Merrick and a customer, Ing, both selected multiple pictures. Mr. Merrick was asked to review the photos approximately six months after the incident and, with respect to Ing, it was 12 months later.
[82] Merrick’s experience with the intruders was traumatic involving a scuffle with a gun. He could not always see the intruders’ faces and was able to get a better look at the man with the gun in front of him. The Crown alleges that it was the accused who was behind Merrick as the scuffle ensued.
[83] The accused points out that it was the evidence of Ing that she had eye contact with one of the intruders for five to six seconds, thinking he was the owner of the store. She had no idea anything out of the ordinary was occurring. It is alleged by the Crown that the intruder who Ing saw fixing the door to the back room was the accused. Ing did not see the second intruder.
[84] Ing, in her evidence, suggested she had good observation skills but she did not see the two intruders leave, one at a time, through the front door. She also described the door to the back room as a bifold door, on a track, which was incorrect.
[85] It is submitted that the descriptions of the intruders given by both Merrick and Ing were generic in nature although Ing referred to the intruder’s warm eyes.
[86] The defence notes that Ing picked two pictures in the photo line up, the first being Picture 9 and the second being Picture 11. She looked at Picture 11 for quite some time before identifying it with a yes and said that it was because Picture 11 was that of a black male with darker skin tone. She stated in the videotaped photo line up procedure that Picture 11 was the “stronger” of the two.
[87] Counsel for the accused submits that the two individuals in Pictures 9 and 11 look nothing alike and that one has a scar on the bridge of his nose.
[88] Counsel for the accused suggests the following frailties with respect to Ing’s identification.
She had only five seconds to observe the individual on the day of the attempted robbery.
The photo lineup took place 12 months after the incident.
She chose two pictures in her attempt to identify the individual she saw.
[89] With respect to Merrick, it is submitted that he has reliability issues and that his frailties as an eye witness are as follows.
When reviewing his 12 photos, Merrick said yes to three of the photographs and a fourth was a maybe. Pictures 6 and 9 allegedly were picked as the gunman and Pictures 1 (maybe) and 10 were allegedly the accused.
He admitted that his opportunity to observe the individual behind him was limited.
He was shown the photos eight months after the incident.
[90] It is the position of the defence that the identification of the accused through the photo line up process was vague and lacked certainty.
[91] It was conceded, however, that Picture 11 as chosen by Ing was the accused and Picture 10 as chosen by Merrick was the accused.
[92] The defence took no issue whatsoever as to the police procedure followed during the two photo line ups.
[93] With respect to the DNA evidence, it relates solely to the baseball cap found on the floor of the store. It is alleged that the intruder with the gun was wearing it when he and the other intruder entered the store. It is not alleged by the Crown that the accused was wearing the hat at the time of the robbery.
[94] It is submitted on behalf of the accused that all the DNA evidence says is that the accused wore the hat at some point or that his bodily fluid came into contact with the sweatband of the hat. It is submitted the DNA evidence is not compelling.
[95] With respect to the evidence of Katrina Hetherington, it is submitted on behalf of the accused that her evidence ought to be accepted and that it was unshaken on cross examination. She was able to fix the time period as it was four days later that she and the accused were involved in a domestic incident resulting in the arrest of the accused.
[96] It is submitted that she was able to review phone records which established she made a call from London, Ontario on July 14, 2010 at 2:00 p.m. With that she refreshed her memory.
[97] The defence argues that Katrina was not exaggerating her evidence. It was her understanding that the offence occurred at 8:00 – 9:00 in the morning, yet she said she likely awoke at her normal time, 9:30 to 10:00 a.m. Had the evidence been fabricated or exaggerated, then she would have been more exact in her times.
[98] If the evidence of Katrina is believed, then the accused was with her when the robbery occurred. In that regard, counsel submits that, further to the W.D. principles, if the Court believes Katrina, the accused is to be found not guilty. If she is not believed but her testimony raises a reasonable doubt, the accused is to be found not guilty. If there is no reasonable doubt based on the evidence of Katrina, the Court must look to all of the Crown’s evidence and determine if there is reasonable doubt.
[99] With respect to the latter consideration, it is submitted that the eye witness evidence is too frail and the DNA does not allow the Court to reach any conclusion, specifically, that the accused was one of the two men who meant to rob the store. The inference cannot be drawn that the accused was with the individual who had the gun and was wearing the cap.
On Behalf of the Crown
[100] It is submitted by the Crown that the only issue to be determined by this Court is that of identity and has the Crown proven the accused participated in the robbery.
[101] The Crown attorney admitted that, if the Court believes the evidence of Katrina, the accused ought to be found not guilty and that, if she is believed, the accused was with her when the robbery took place.
[102] He also recognizes that her evidence could raise a reasonable doubt.
[103] The Crown submits that I should reject the alibi evidence and that the Crown’s evidence as a whole is enough to convict.
[104] Crown counsel agrees that, with respect to eye witness evidence, the Court must exercise strong and vigilant caution. He submits there are three pieces of evidence that, on their own, would not warrant a conviction but taken together are sufficient to convict. They are the photo identification of Merrick, the photo identification of Ing and the DNA evidence from the hat. He submits that from totality of these three pieces of evidence inferences can be drawn sufficient for a conviction.
[105] The Crown submits that the DNA evidence corroborates the identification evidence.
[106] The Crown alleges that the accused was the intruder without the gun, the shorter of the two. He submits that it was the accused Ing saw working with the door. He submits that the hat found was that of the accused but worn by the other intruder.
[107] One of the authorities relied on by the Crown is R. v. Powell 2007 45918 (ON SC), [2007] O.J. No. 4196, a decision of T. Ducharme J. of the Superior Court of Justice. He submits that, with respect to eye witness evidence, there is a formula of questions to be considered when analysing this evidence.
How Much Time Has Lapsed Between the Incident and the Photo Line Up?
[108] In this case, it was eight months with respect to Merrick and 12 months with respect to Ing. The Crown admits these time frames result in an increased risk for error on the premise the longer the time period the less reliable the identification.
Is the Witness Identifying Someone He Knew or Someone He Has Never Seen Before?
[109] Neither Merrick nor Ing had seen the accused before the alleged attempted robbery and, therefore, their identification should be approached with more caution than if they were indentifying someone they knew.
The Physical Circumstances of the Sighting
[110] It is submitted by the Crown that Merrick was very close to the individuals he was trying to identify although he was involved in a struggle and did not have a good view of the man alleged to be the accused.
[111] Ing was farther away but was stationary and made eye contact with the individual for five or six seconds. It is submitted this was long enough to note and remember.
Duration of the Observation
[112] With respect to both witnesses, it cannot be said their observation of the intruders was fleeting. There was some period of time involved.
The Emotional State of the Witness at the Time of the Sighting
[113] The emotional state of Merrick was much different from that of Ing. Merrick was involved in a physical struggle with two men who meant to rob him. He was under considerable stress; the struggle would have been a distraction relating to his ability to observe.
[114] Ing, on the other hand, was under no such stress and had no distractions when observing the black male working with the door.
Quality of Descriptions
[115] For the most part, the descriptions provided by both witnesses were generic although it is argued by the Crown that the description by Ing had a greater degree of reliability. She only observed one intruder and only had to recall the identity of one intruder. Her description had some more detail such as the skin tone and the fact he had “warm eyes”. She described the person she saw as clean shaven and full featured. Both described someone well groomed and Katrina, in her testimony, agreed that the accused was always well groomed.
How Do the Descriptions Compare
[116] Both of the descriptions as provided by the two witnesses were very similar. There was no real discrepancy.
Has the Eye Witness Been Exposed to Other Images of the Person Being Identified?
[117] Both witnesses identified the pictures separately and were not exposed to other images or the influence of other persons.
Pre-Trial Process for Identification
[118] I have already commented that defence counsel took no issue with the process employed by the Peel Police in conducting the photo line ups. The one exception may be the time between the incident and the line up but this consideration was considered separately. I do not believe the witnesses’ descriptions or choices were influenced by the process. The issue is with respect to the identifications made given the process.
Has the Witnesses’ Identification Been Influenced By That of Other Witnesses?
[119] The answer to that question is no. There is no evidence that the two witnesses consulted with each other in any way.
How Does the Eye-Witness Description of the Person Compare With Their Appearance at the Time of the Incident?
[120] The crown submits that there was no real conflict with respect to the descriptions and the pictures chosen by the witnesses. There were some changes involving the length of hair and perhaps the existence of facial hair. Such differences were not significant.
Did Cross Racial Identification Play a Factor?
[121] Merrick, in his videotaped photo line up meeting, referred to this factor specifically; he noted that it is more difficult to denote differences in facial features regarding persons of another race. This goes to his reliability and suggests greater caution in considering his evidence.
Is There Any Other Reliable Circumstantial Evidence to Corroborate the Identification Evidence?
[122] The Crown submits that such evidence does exist. He submits the DNA evidence is corroborative of the photo selections of Merrick and Ing.
[123] With respect to the hat found on the floor, the Crown attorney submits that, on the evidence of Dr. Claxton, the hat would have had to be worn by the accused multiple times.
[124] The Crown admits, however, that the accused was not wearing the hat at the time of the robbery. The other intruder was wearing it.
[125] The Crown attorney submits that the evidence of Katrina Hetherington ought to be rejected on the basis of significant credibility issues. She admitted harbouring feelings for the accused and had the opportunity to talk to the accused when he was in jail and before she gave her statement.
[126] It is submitted that her testimony that she did not discuss the case with the accused is unbelievable. Her evidence is described as somewhere between an exaggeration and a fabrication. It is submitted that Katrina was unclear as to times and dates and that she could not even testify if the concert was on Friday or Saturday night.
[127] The Crown attorney submits that Katrina’s reliability is even worse and that she used the words probably and usually and spoke of her normal routine.
[128] The Crown submits that Katrina’s motive is to protect the accused and not to advance the truth.
ANALYSIS
[129] In keeping with the W.D. approach, I will first deal with the defence evidence, being the testimony of Ms. Hetherington.
[130] I do not believe fully the evidence of Ms. Hetherington. I choose not to believe her because much of her testimony was based on her normal practice or her normal routine, for example, her evidence as to when she awoke in the morning or when she went to work. Her evidence lacked certain specifics.
[131] However, the evidence of this witness did leave me with a reasonable doubt.
[132] I accept that it is likely or probable that Hetherington, on that day, carried on with her normal routine. She testified that on the day in issue it was likely she was awake at the time the offence allegedly occurred and was able to testify as to the accused’s whereabouts at the time the offence allegedly occurred. Such likelihood is sufficient to raise a reasonable doubt.
[133] Her evidence was not shaken under cross examination. She admitted having some feelings for the accused but was clear she had no wish to reconcile. I cannot conclude that her relationship was such that her intention was to protect the accused and not to tell the truth.
[134] It was Ms. Hetherington’s evidence that the accused was home with her at the time the offence was alleged to have occurred. She testified she was quite sure that the accused could not have left their home earlier in the morning without her knowing.
[135] Ms. Hetherington testified that, after she awoke, she showered and packed and they left for London, Ontario. There is no doubt that she was in London, certainly by 2:00 p.m. when she made a phone call, according to her phone records.
[136] Ms. Hetherington was not caught in any inconsistencies nor do I find that she exaggerated her evidence. She certainly did not try to tailor her evidence to the allegations. She testified that she was under the impression the offence occurred much earlier in the morning.
[137] Ms. Hetherington’s answers directly addressed the questions put to her, without exaggeration. As alluded to above, her reliance on her normal practice as opposed to what actually happened prevents me from believing her but does raise a reasonable doubt.
[138] On the defence evidence alone, the accused is entitled to an acquittal.
[139] As I have determined a reasonable doubt exists on the strength of the defence evidence, my comments on the Crown evidence will be brief.
[140] As stated previously, the evidence of eye witnesses is inherently unreliable. On the evidence of Merrick and Ing I was not convinced otherwise. The picture line-up was conducted well after the fact and identified more than one possibility in regards to the perpetrator the Crown alleges is the accused.
[141] Ing, while at all times at the front of the store, did not see either perpetrator exit the store through the front door as alleged by the Crown.
[142] The evidence in relation to the hat indicates the accused wore it or came into contact with it on some occasion. However, the Crown alleges the accused was the perpetrator without the hat. The evidence is circumstantial and that, together with the eye witness evidence, does not overcome the presumption of innocence and does not amount to proof beyond a reasonable doubt.
DECISION
[143] The accused, Maurice Beckles is acquitted of both charges.
Justice Thomas A. Bielby
Released: January 8, 2013
COURT FILE NO.: CRIMJ(P) 1485/11
DATE: 2013-01-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MAURICE BECKLES
REASONS FOR JUDGMENT
Bielby J.
Released: January 8, 2013