SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 577/13
DATE: 20140213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. S. Latimer, for the Crown

• and -

STEPHEN STEPHENSON

S. Stephenson, self-represented

HEARD: February 10, 2014

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] Mr. Stephenson pleaded not guilty to a single count of robbery. He chose to represent himself at trial.

[2] On behalf of the prosecution, Sahde Notice (the complainant) testified as did Peel Regional Police Service Constable Ashby. Mr. Stephenson elected to testify on his own behalf.

THE EVIDENCE

The Complainant is Robbed

[3] Ms. Notice testified that on October 3, 2012, she was a student at Sandalwood Heights Secondary School in Brampton.

[4] School ended at 3:00 p.m. The complainant remained to watch some of a flag football game with a friend. At about 3:30 p.m., she left the school to walk home. She went part way with a friend.

[5] By the time that Ms. Notice was walking north on Rockstep Court she was alone. At a point, a car came south on this residential street and passed her position. The complainant observed the vehicle to be a silver/gray older model Pontiac with tinted windows. She thought the car was occupied by two males in the front seat.

[6] According to Ms. Notice’s evidence, the car turned and pulled into the driveway at 21 Rockstep Court on the opposite side of the street to where she was walking. The vehicle was about 35 feet distant.

[7] Ms. Notice recalled that when she turned her head she saw two male persons exit the car. The witness described these individuals as a male with a dark grey hoodie (DG) and a second wearing a light grey hoodie (LG). As the two walked up behind her she slowed somewhat as she was nervous.

[8] The complainant testified that she heard someone say, “Go, call the girl”. DG then called out, “Sweetie, Sweetie”. He then blocked her path on the sidewalk. LG was about three to five metres behind her and then he disappeared. Ms. Notice testified that she became aware that the car had left the driveway and was about 15 feet away in a position to exit Rockstep Court by Pine Landing Trail.

[9] The complainant informed the court that DG, not without some difficulty, yanked two chains/necklaces from around her neck. She sustained a scratch to her throat. One chain, which she had had since being a young child included the name, “Sahde”. The second chain, which she had had since grade 5 or 6, had the word, “Love”.

[10] DG then ran and entered the car. The complainant is of the view that LG was in the car too before it sped off. According to the complainant, she only had a glance of the vehicle driver through the tinted windows. He was black-skinned and wearing a blue or purple shirt.

[11] On Ms. Notice’s evidence, she screamed out for her chains as the car turned onto Pine Landing Trail. She continued to repeat the observed licence number to herself until she obtained a pen from her backpack to write the vehicle licence plate number on her hand - “BPNB 439”. Exhibit #3 at trial is a photograph of the complainant’s hand with the writing on it.

[12] Within minutes, the complainant encountered a person with a cellphone who telephoned her mother who came to the scene. Ms. Notice spoke to the police on the phone and attended a police facility.

Mr. Stephenson’s Trip to Rockstep Court

[13] Mr. Stephenson informed the court that he moved from Toronto to Brampton in about September 2012. He was unfamiliar with the Brampton area. He resided with his mother, her boyfriend and a step-brother. The accused stated that he attended the Peel Alternative School. He also spoke of being employed through an agency performing the general labour of loading car parts for a Magna subsidiary. Mr. Stephenson testified that he has no criminal record.

[14] The accused testified that on October 3, 2012, he went to the Bramalea City Centre in Brampton to buy some food. He also wanted to get some “weed”. Mr. Stephenson testified that he is a “weed smoker” and that he knew how to get it immediately in Toronto. On October 3, 2012, he “needed” weed. He wanted to get high.

[15] On the accused’s evidence, after eating at the Centre, he went outside. On his evidence, he saw some guys, an “Asian guy and some black guys,” he thought were smoking marijuana.

[16] Mr. Stephenson testified that he got in his vehicle and drove back to the location of the group of males he had walked past earlier. He stopped his car and through the window inquired as to whether anyone knew where he could get some weed. The Asian guy told him to hang on. He was told, “Yah”. Then a male wearing a black jacket and a grey hoodie came toward him asking how much he wanted. The accused testified that he responded by saying, a “20 sac” which is two dimes of weed.

[17] Mr. Stephenson informed the court that this male did not want to deal in front of the mall. He then got into the accused’s car along with a friend who was wearing a black hoodie. He did not know these individuals – they were “way younger” than him – just like kids. Mr. Stephenson testified that he believed the two males had the marijuana on their person in the car – “It has to be”.

[18] Mr. Stephenson testified that once he had picked up the two passengers – “…I gave him the twenty bucks and then they were telling me where to go like drive this way, to exit out of the parking lot” and then directions away from the City Centre. Later, in cross-examination, the accused maintained that he handed to the male in the rear seat $20.00 about seven minutes into the drive. (“We’re not at Bramalea when I gave him the money…”) Mr. Stephenson testified that as the driving went on he thought perhaps that his passengers were directing him to a location where they would obtain the marijuana.

[19] He followed instructions to drive and turn right or left as directed. There was conversation. He related that he was new to Brampton. They said that they were from Malton. Mr. Stephenson testified that, “I’m not really trusting them because they’re in my car you know”. In cross-examination, the accused also stated that he was “not suspicious of anything”.

[20] On Mr. Stephenson’s evidence, he believed the two would provide him with weed. He had not smoked in three weeks.

[21] Mr. Stephenson agreed in cross-examination that during the 15-minute drive to Rockstep Court he did not ask where they were going. The long drive did not seem odd to him as he believed the sellers would not deal in an open area but rather somewhere more discreet.

[22] According to the accused, after about a 15-minute drive, on a side street he now knows to be Rockstep Court, the male persons in his car became jumpy and excited. One said a couple of times, “Pull over right here” and pointed to the far side of the road. He did not ask why they were stopping. He complied and they rushed out and went behind his car. On the accused’s evidence, he at no point asked, during the drive or before the two males exited his car, as to where his marijuana was.

[23] Mr. Stephenson was questioned in cross-examination as to whether he was at all concerned that he would lose his money:

Q. And you’re suspicious about what’s going on?

A. No, no, no. I’m suspicious if these guys are running with my money and if they’re coming back, that’s what…I’m not suspicious of what’s going on…

A short time later, again in cross-examination, the accused stated:

Why I know they’re coming back because there’s a jacket on my passenger seat so they had to come back for their jacket…so I knew wherever they’re going, they ain’t going far without it…

[24] Mr. Stephenson then pulled into the first driveway on the left and then parked on the street facing the opposite way to which he had travelled. He had not been there before. Mr. Stephenson testified that he remained in the car chilling. He turned the car engine off. He was in his phone – looking at Twitter, girls and YouTube for one or two minutes. He did not see Sahde Notice. He first saw her at court after he was arrested. He knows nothing about a robbery. He never looked to see where his passengers had gone.

[25] The accused testified that two or three minutes after the males left his car, they “ran back” from behind his car, jumped into the car and said, “Drive, drive, drive”. He did so although they were irritated that he wasn’t driving fast enough. He wondered what was going on. He had no idea what they had done but he thought that something went down. At this point, his cellphone was in the cup holder.

[26] As he drove back to the Bramalea City Centre, there was discussion about him being on BlackBerry Messenger (BBM). It was discussed that if they had each other’s contacts on BBM, the accused could “holler” at them when he needed weed. According to the accused, one of the males took his phone to add him on BBM in their phone by scanning his barcode and PIN. His phone was out of his immediate possession only a short time.

[27] Mr. Stephenson testified that when he was asked if he wanted to buy a chain, he said that he did not have money for that and that he just wanted the weed. He did not see any chains. He was told that if anyone wanted a chain, DG and LG could be found at the Centre’s food mall.

[28] The accused testified that when he let the males out at the Centre he was only provided a dime of weed. They said that this is all they had.

[29] Mr. Stephenson informed the court that after dropping the two males off he then drove straight home to his residence at 69 Abitibi Lake Drive in Brampton. On his evidence, this is a 5-minute drive to his home which he also agreed was a few blocks from the scene of the robbery. He went quickly into the house to get some zigzag papers from his room and then right back out to his car as he was excited to smoke the weed he had purchased.

The Police Investigation

[30] Constable Ashby received a radio dispatch call at 3:45 p.m. on October 3, 2012 of an alleged robbery. When the officer checked vehicle registration records with the licence number provided by the complainant he learned that the plate was registered to 20-year-old Stephen Stephenson resident at 69 Abitibi Lake Drive in Brampton.

[31] At about 5:10 p.m., Consts. Ashby and Henderson took up surveillance on the Abitibi Lake Drive residence. The subject vehicle was in the driveway. At about 5:30 p.m., the accused exited the residence whereupon he was arrested before he could drive away.

[32] To Const. Ashby’s recall, Mr. Stephenson may have had one leg in his car when he was taken to the ground by Const. Henderson. Mr. Stephenson testified that he was seated in his car before he was arrested. He retrieved some zigzags from the house and was rolling a spliff. The officers had their guns drawn when Const. Henderson tapped on the window glass for him to get out of the car slowly with his hands up. He was then arrested in possession of marijuana. On the accused’s evidence, his phone was in the car and not in his pocket.

[33] According to Const. Ashby, the accused was handcuffed and during a search incident to arrest a BlackBerry cellphone was removed from his right pants pocket.

[34] Const. Ashby testified that his police experience included service in CIB as well as break-and-enter and robbery units. In the hundreds of offences he has investigated, “in just about everyone” he has located pictures/photos and/or texts relating to the subject property. As a result, he believed that in this case the arrestee’s phone would contain evidence relating to the Rockstep Court robbery.

[35] Const. Ashby informed the court that on examining the seized cellphone he found it to be on and unlocked. He was concerned that if he didn’t view the contents, the phone could lock and the opportunity to secure evidence would be lost and, without a password, the relevant evidence inaccessible in the future. To the constable’s recall, either on the Abitibi driveway or on the way back to the police station, he opened a pictures file in the phone and discovered a photo of a hand on which lay two chains – one with the name “Sahde” and the other with the word “Love”. At trial, Ms. Notice identified the chains in the downloaded photo (Exhibit #2) from Mr. Stephenson’s phone as the personal property taken from her by force without her consent.

[36] Const. Ashby testified that at the station he opened the phone’s BBM file to examine text messages for evidence. When he opened this file, he found that Mr. Stephenson’s profile or representative picture was also the photo of the hand with the chains. Production orders and a search warrant were subsequently utilized to search the phone for further evidence.

[37] Mr. Stephenson testified that the recent updates part of his BBM account would show activity relating to the male persons having temporary possession of his phone on October 3, 2012. The accused recalled that when he was in an interview room at the police station, he heard one of the police officers outside the room say words to the effect of, “Oh, my God, this idiot has a picture on his phone”.

[38] Mr. Stephenson testified that he has no prior criminal record and that, in his view, “to rob a girl, that’s as low as you can get”.

POSITION OF THE PARTIES

The Prosecution

[39] Mr. Latimer submitted that the credible evidence at trial established that Stephen Stephenson was a party to the robbery of the complainant. The circumstances, it is said, demonstrate knowledge of the crime and intention to assist the two unknown parties who approached Ms. Notice on the sidewalk.

[40] It was submitted that the accused’s evidence is implausible that he would drive for 15 minutes with two males he had never met and whom he believed already had the marijuana with them which he was purchasing. It was further argued that, accepting the evidence of the complainant, Mr. Stephenson would have been in a position to see the robbery in progress after he re-positioned his car for a quick getaway on Pine Trail Landing. Mr. Latimer submitted that the accused’s evidence is not believable that he would pay no attention to DG and LG who left his vehicle with his payment for the weed.

[41] Crown counsel asks the court to reject the accused’s evidence that the photo of the stolen chains in his phone was taken by someone else without his knowledge. It was further argued that it is not reasonable to believe that the accused did not operate or check his phone between 3:30 p.m. and the time of his arrest at about 5:30 p.m.

[42] On the issue of the legality of the police search of Mr. Stephenson’s phone, the Crown submitted that Const. Ashby’s evidence that, based on his extensive investigative experience, he undertook a cursory look in the phone for evidence of the robbery was consistent with the authority described in R. v. Fearon, 2013 ONCA 106 (leave to appeal granted, [2013] S.C.C.A. No. 141).

The Defence

[43] Mr. Stephenson’s position is that he was not involved in the alleged robbery. He had no knowledge of the crime and did not see it occur.

[44] The defence position is that Mr. Stephenson was in effect duped by two persons to unwittingly act as the getaway driver for a robbery he knew nothing about.

[45] The accused argued that on October 3, 2012 he was just interested in obtaining some weed. He understood that those he was dealing with wanted to complete the transaction in a discreet way. When the males left his car he considered that they would return as they had left property in his vehicle. Mr. Stephenson submitted that while his car was positioned as instructed he did not see a robbery. He was on his phone and the males returned from a position behind his car.

[46] Mr. Stephenson argued that he has no prior criminal record and it makes no sense that he would participate in a robbery proximate to where he lived, with his vehicle licence plate clearly visible to a victim, and then photograph stolen property thereby creating further evidence against himself.

ANALYSIS

General Principles

[47] The trier of fact may believe all, none or some of a witness' evidence: R. v. D.A.I., [2012] 1 S.C.R. 189, at para. 72; R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 837; R. v. B.C., 2011 ONCA 604, at para 5 (leave to appeal refused, [2011] S.C.C.A. No. 519); R. v. M.R., 2010 ONCA 285, at para. 6. Accordingly, a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[48] However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, at pp. 819-820.

[49] Assessment of a witness’ credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom – this includes “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57 (aff’d (2012), 2012 SCC 72, 290 C.C.C. (3d) 404 (S.C.C.)).

[50] However, a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot support a finding of guilt: R. v. A.(K.) (1999), 1999 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.), at para. 44.

[51] The burden of proof is upon the Crown to establish guilt beyond a reasonable doubt. Accordingly, an accused’s silence at trial is not a distinct piece of evidence capable of being placed on the evidentiary scales or given “make weight” effect in determining whether the prosecution has discharged its burden: R. v. Noble (1997), 1997 388 (SCC), 114 C.C.C. (3d) 385 (S.C.C.), at pp. 428-9; R. v. Luu (2010), 2010 ONCA 807, 264 C.C.C. (3d) 48 (Ont. C.A.), at paras. 30-32; R. v. Scott (2012), 2012 BCCA 99, 280 C.C.C. (3d) 232 (B.C.C.A.), at paras. 96-7 (leave to appeal refused, [2012] S.C.C.A. No. 211).

[52] In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty (R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4) – inference must be carefully distinguished from conjecture or speculation – at all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence and the trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference sought to be drawn. Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively – with circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact's application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8.

[53] While not essential to the prosecution’s proof of crime, evidence of motive may circumstantially contribute, in the context of the whole of the evidence, to establish an accused’s culpability.

[54] Where good character evidence is properly admitted, it may be capable of supporting the accused’s credibility and may circumstantially enhance the improbability that he or she committed the offence(s) charged: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 29; R. v. F.E.E., 2011 ONCA 783, at para. 67; R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont. C.A.), at p. 65. In appropriate cases, good character evidence may be sufficient of itself to raise a reasonable doubt: R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at paras. 99-101.

[55] A passive participant cannot be liable as a party to a crime. However, a person who drives others to the location of a robbery and agrees to act as the get-away driver, intending that the crime occur and that accomplices should be assisted in fleeing the scene, can be found guilty of the robbery.

Fact-Finding in This Case

[56] The prosecution submitted that it produced a compelling circumstantial case making it the only reasonable inference that Stephen Stephenson was a party to the robbery – a fully engaged wheelman. It was submitted that in finding it has discharged its onus of proof beyond a reasonable doubt, the court should reject the accused’s evidence as unbelievable and incapable of raising a reasonable doubt.

[57] Mr. Stephenson’s version of events has him in effect tricked by a couple of kids who persuaded him to drive 15 minutes from the Bramalea City Centre and back again all without giving him the marijuana for which he paid until ripping him off after this half hour – a round trip which included the commission of a robbery he knew nothing about.

[58] In his testimony under oath, Mr. Stephenson denied all knowledge of, or involvement in, the robbery of Sahde Notice. In addition, in his testimony, the accused asserted his good character through the absence of a prior criminal record and his evidence that he would not be involved in the robbery of a woman. Mr. Stephenson emphasized the unlikelihood of his knowing participation in the robbery given that his vehicle licence plate would be clearly visible to the victim.

[59] On the record here, certain factual matters cannot seriously be considered to be in dispute:

(1) Sahde Notice was robbed of two chains/necklaces on October 3, 2012 at about 3:30 p.m. on Rockstep Court in Brampton

(2) two of the persons responsible, who were unknown to the complainant, came out of, and returned to, a vehicle driven by Stephen Stephenson – the car was parked briefly on the street and following the robbery left the scene in a hurry

(3) by 5:10 p.m. on October 3, 2012, Mr. Stephenson’s car was parked in the driveway of his residence at 69 Abitibi Lake Drive in Brampton, a location generally in the same neighbourhood as the scene of the robbery

(4) at about 5:30 p.m. on this date, the accused was arrested at his vehicle in the residence driveway – his cellphone, seized incidental to his arrest, contained a photo of the two chains taken in the robbery.

[60] While it is possible to interpret Ms. Notice’s evidence as to the position of the accused’s car in relation to her position when robbed as placing the occurrence of the crime visible through the front windshield of the vehicle, this evidence is not entirely clear. Similarly, on Mr. Stephenson’s evidence of letting two passengers out on the road who went behind his car, followed by a left turn into the first driveway and the taking up of a parked position facing the opposite way, it could not be said that the passengers could not have moved further down the road to a position behind the accused’s car. All of this is to say that the court is unable, on the state of the record, to be satisfied that the robbery happened beside or in front of the accused’s car.

[61] That said, the Crown presented a strong circumstantial case against Mr. Stephenson. Two of the robbers were transported to the scene by the accused. During the physical robbery, the accused moved his vehicle to a position to be able to quickly exit Rockstep Court onto a street leading to Sandalwood Parkway. After the robbery, Mr. Stephenson drove off in haste with his passengers and the victim’s jewellery. About two hours after the robbery, the accused had a photo of the chains stored in his cellphone.

[62] In content and manner of presentation, Mr. Stephenson’s explanation for these circumstances defies belief. Put differently, on the whole of the evidence, the only reasonable inference is that the accused was a knowing party to the robbery.

[63] There were inconsistencies within Mr. Stephenson’s evidence including the following:

(1) the accused variously testified that he paid over $20.00 before leaving the Bramalea City Centre, and, that the payment was made 7 minutes into the drive after leaving the Centre

(2) Mr. Stephenson informed the court both that he didn’t trust the two males with his money as well as saying that he was not suspicious that he would be ripped off as he still had custody of one of their jackets.

[64] Mr. Stephenson’s chronology of events is inconsistent with the police surveillance evidence – evidence which the court accepts. According to the accused, he drove quickly from Rockstep Court and back to the Centre where he dropped off his passengers and then straight home where he obtained zigzag papers for immediate use back in his car where he was anxious to smoke. With the robbery at about 3:30 p.m., and allowing 15 minutes for the drive back to the Centre, with a 5-minute return drive home, Mr. Stephenson would have been home by 5:00 p.m. Surveillance commenced at 5:10 p.m. with the accused’s car in the driveway but it was not until 5:30 p.m. that the accused exited his residence. It is apparent that Mr. Stephenson did not, as he maintained, quickly obtain the zigzag papers and go to his car to smoke.

[65] Further, there are inherent improbabilities in the account provided by Mr. Stephenson including:

(1) new to Brampton, Mr. Stephenson approached complete strangers in an effort to purchase marijuana

(2) he permitted two strangers to enter his car and to direct him 15 minutes’ driving distance into an area he claimed to be unfamiliar with

(3) the accused purportedly paid money to strangers without seeing or obtaining the marijuana

(4) without taking judicial notice, or relying on the experience of the courts, it can be said that two dimes of weed, at a $20.00 cost, is, if not a hand-to-hand transaction level, nevertheless a very minor drug transaction – while perhaps not prudently conducted outside at the Centre, an experienced purchaser like the accused would surely wonder why miles of separation from the Centre was necessary to complete the transaction with persons whom he believed were in immediate possession of the weed

(5) Mr. Stephenson at no point asked where they were going or when he would get the marijuana

(6) it appears that, despite ongoing conversation in the car on the trip to Rockstep Court no names, nicknames or handles were verbally exchanged

(7) when the passengers described by the accused told him to stop his vehicle and to park on the other side of the street he did not ask why

(8) with two strangers fronted with his $20.00 for a marijuana buy unexpectedly leaving his car in a rush, the accused claimed to not be interested in looking to see where they went or what they were doing – he simply chilled with apparent deliberate disinterest in what was going on around him.

[66] From my observations of Const. Ashby and on consideration of his evidence, I am satisfied that he seized the accused’s cellphone from the accused’s pants pocket incident to arrest. I further accept that the officer reasonably believed that the phone could contain evidence relating to the alleged robbery and that because failure to immediately examine the phone could result in a permanent lock-out of access, he made a cursory examination of the phone’s picture file before returning the arrestee to the police station.

[67] I am prepared to find that the subsequent and more extensive warrantless search of the phone at the police station exceeded the justifiable authority of a lawful search incident to arrest. That said, the Fearon decision post-dates the police conduct in this case. In all the circumstances, the precise boundaries applicable to warrantless searches of cellphones remained unclear and the issue is currently set to be reviewed by the Supreme Court of Canada. Const. Ashby’s actions did not engage a deliberate or wilful breach of Mr. Stephenson’s s. 8 Charter right, the extent of the breach was not overwhelming, the authorized cursory examination of the phone would itself have grounded the issuance of a warrant, and the photo is real non-conscriptive evidence which is reliable in nature and material to the prosecution proof of a serious crime.

[68] The accused’s account as to how the photo of the stolen chains came to be in the pictures file of his cellphone made little sense. Permitting two strangers to manipulate his cellphone when he had yet to receive marijuana from them for the money he provided, and when he believed something had “gone down” when they were absent from his vehicle, is quite implausible.

[69] Mr. Stephenson’s account of how the photo of the victim’s jewellery came to be in his cellphone, like his evidence as to the circumstances of his vehicle at the scene of the robbery, was a demonstrable, but ultimately transparently invented, effort to conceal the truth.

[70] On the whole of the evidence, the prosecution has established Mr. Stephenson’s guilt beyond a reasonable doubt.

CONCLUSION

[71] Mr. Stephenson is found guilty as charged.

HILL J.

DATE: February 13, 2014

COURT FILE NO.: CRIMJ(P) 577/13

DATE: 20140213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. STEPHEN STEPHENSON

BEFORE: HILL J.

COUNSEL: S. Latimer, for the Crown

S. Stephenson, self-represented

REASONS FOR JUDGMENT

HILL J.

DATE: February 13, 2014