COURT FILE NO.: CRIM(P) 382/13
DATE: 2015 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Michael P. Michaud, for the Crown

• and -

NATALIE BROWN

Maurice J. Mattis, for the Defence

HEARD: May 11 to 15 and 19 to 22 and 25, 2015

REASONS FOR JUDGMENT

FAIRBURN J

[1] Ms. Brown is before the court on a three count indictment, alleging that she committed three robberies in the City of Brampton during the evening of July 19, 2012. Each of the victims were robbed at bus shelters. Each of the robberies occurred about thirty minutes apart. The Crown alleges that, on each occasion, Ms. Brown was the driver of the getaway vehicle. The Crown says that her accomplice was Revington Bailey. On the Crown’s theory, Mr. Bailey committed the actual robberies that escalated in seriousness over the course of the evening. In the first, he flashed a gun. In the second, he pointed a gun at the victim and then discharged it into nearby grass. In the third, he pointed a gun at the victim and pulled the trigger. No bullet emerged. In each case, the robber got away with handheld electronic devices. In the last two robberies, he was seen entering a vehicle in a location other than the driver’s seat. In the last robbery, a licence plate was obtained. The plate came back to Ms. Brown’s van.

[2] There is no dispute that the first two robberies occurred. Nor is there a dispute about what happened during those incidents, including the fact that Revington Bailey was the principal party. I find as a fact that the third robbery also occurred and that Mr. Bailey was the principal offender in respect to that one as well.

[3] The central issue for my determination on this trial is whether, having regard to all of the evidence, Ms. Brown aided Revington Bailey in committing the robberies.

The Evidence

Count #1: Robbery of Matthew Sinaga – Agreed Statement of Facts

[4] At about 10:25 p.m. on July 19, 2012, Matthew Sinaga was waiting at a bus stop at the corner of Steeles Avenue and Torbram Road. He was with his friend Eliezer Suean. They were approached by a black male wearing a black cap with red writing. It is agreed that this man was Revington Bailey.

[5] Mr. Bailey stood at the bus stop for “a couple minutes” before asking Mr. Sinaga and Mr. Suean whether they knew when the bus would arrive. When they said that they did not know, Mr. Bailey asked Mr. Sinaga to check the bus schedule on his iPhone 4. While he initially resisted, Mr. Sinaga eventually handed the phone to his friend and asked him to check. As Mr. Suean went to hand the phone back to Mr. Sinaga, Mr. Bailey took it and pretended to call Brampton Transit.

[6] Bailey then “flashed a gun” in their direction. He did this by lifting his shirt. The gun was in the waistband of his pants. He told them to “keep walking”. Both Mr. Sinaga and Mr. Suean walked to the Hilton Garden Inn and reported the incident to the police. They did not look back.

[7] Mr. Sinaga’s iPhone 4, worth between $350-399, was the only thing taken. It is agreed that on July 20, 2012, Mr. Bailey sold Mr. Sinaga’s telephone and a second one (unrelated to this case), to a Mr. Khawaja Ahmad. Mr. Bailey claimed that they were his property to sell. Mr. Ahmad paid $330 for both phones. Ms. Brown was not present for the sale.

Count #2: Robbery of Vimmi Dhingra – Agreed Statement of Facts

[8] At about 10:57 p.m. on July 19, 2012, Vimmi Dhingra was sitting down inside of a bus shelter at the corner of Dixie Road and Bovaird Drive. A black male with a black baseball cap approached her from the back of the bus shelter. It is agreed that this man was Revington Bailey. Mr. Bailey asked Ms. Dhingra for the time. She told him it was 10:57 p.m., after which he pulled a gun from his pocket, pointed it at her “belly”, and said “OK, give me whatever you have. Like cash, or your cell phone.”

[9] Ms. Dhingra told Mr. Bailey that she had no cash, at which time he told her to hand over her cell phone. She then put her phone in her purse and zippered it closed. Bailey told her to hand over her purse. Ms. Dhingra tried to run from the bus shelter and Bailey tried to snatch her purse. There was a brief struggle in front of the bus shelter, and then Bailey fired a shot into some nearby grass. At that point, Ms. Dhingra released her purse and Bailey ran toward a waiting vehicle on Dixie South.

[10] Mr. Bailey entered the vehicle before it drove away. He did not enter the driver’s seat. Ms. Dhingra said that “maybe” it was a van because of the height of the licence plate. She said that she did not see who was driving the vehicle or the licence plate number.

[11] Among other things taken from Ms. Dhingra were her Black Samsung Galaxy S2 phone, worth $500-$600. Her purse and cosmetics were also taken. So too were her Brampton transit bus tickets, purchased from the Springdale Pharmacy. (As below, these tickets and a receipt for them were later located in Ms. Brown’s van.)

Count #3: Robbery of Bhopinder Singh – 911 Call, Statement Given to Police and Preliminary Inquiry Evidence

[12] Mr. Singh was the third robbery victim. He was also at a bus stop. It is agreed that he called 911 at 23:29:04 p.m. on July 19, 2012, and spoke with a 911 operator for 6 minutes and 44 seconds.

[13] While Mr. Singh provided a statement shortly after the 911 call, and testified under oath at the preliminary inquiry, he could not be located at the time of trial. As it turns out, Mr. Singh had been here on a student visa which seems to have expired prior to trial. As such, the Crown brought a motion seeking the admissibility of the 911 call, Mr. Singh’s police statement, and his preliminary inquiry evidence.

[14] I first ruled on the 911 call, finding that it was admissible. Bearing in mind this ruling, the defence asked that Mr. Singh’s statement, given shortly after the 911 call, and his preliminary inquiry evidence, also be admitted into the proceedings. Counsel agreed that the statement and preliminary inquiry evidence should be received for the truth of their contents. Counsel agreed that this obviated the need to hear and rule on the balance of the motion.

911 Call: July 19, 2012

[15] In the 911 call, Mr. Singh said that he had just been “robbed” at the Goreway and Derry bus stop. He was calling from a Pizza Nova at 3417 Derry Road, about 100-150 metres from the intersection of Derry Road and Goreway Drive. Within seconds of the call commencing, Mr. Singh gave the licence plate for the getaway vehicle: BJNX 949. The plate was read back to him by the 911 operator with the use of words: “B as in boy, J like John …”. Mr. Singh confirmed she had the correct plate. As below, this plate is registered to Ms. Brown and is affixed to her van that was searched pursuant to warrant and found to contain the second robbery victim’s bus tickets and receipt.

[16] Mr. Singh told the 911 operator that he had been walking through the intersection when a male first started to follow him. Mr. Singh thought the man was also going to the bus stop, but when Mr. Singh stopped walking, the man hit him from the back with his forearm. Mr. Singh’s phone, a Blackberry, fell to the ground. The man picked up Mr. Singh’s Blackberry. He showed Mr. Singh a gun and then started running.

[17] He ran toward the vehicle with plate BJNX 949. Mr. Singh said that a “lady” was driving the car, a Dodge Caravan. Both the female driver and the man with the gun were black. The woman was between 25 to 30 years of age. The man was wearing a cap and a chain and was dressed in black. The gun he was carrying appeared to be a “pistol”.

[18] Mr. Singh said that as the man ran toward the car he was shouting “drive-drive-drive”. The woman drove off once the man was in the car.

Statement to the Police: July 20, 2012

[19] The police interview commenced at 12:14 a.m. At first Mr. Singh said that at about 11:15 p.m. he was crossing the intersection at Derry and Goreway and was heading toward the bus terminal. He was on the phone with his friend. He saw a black man following him and thought the man was also going to catch the bus. Once he arrived at the bus stop, the man hit him from behind with his forearm and his phone fell to the ground. The man grabbed his phone. Mr. Singh told the man that it was his phone and the man said “no-no”. The man started to back up at which point Mr. Singh said he needed his phone. The man then showed Mr. Singh a gun which was in his left waist area. He kept the gun down low. It was a black handgun and looked somewhat like the interviewing officer’s gun. The gun was in the man’s left hand and Mr. Singh’s Blackberry Bold, worth about $500, was in the man’s right hand.

[20] Mr. Singh started to approach the man who said, “I am going to shoot you”. When Mr. Singh said he needed his phone, the man “press the trigger and ah just a click sound”, but nothing came out of the gun. The man then started to run toward a Dodge Caravan that was “waiting for that guy”. It was parked in a mall in front of the Pizza Nova. A “lady was driving the car” and the man was shouting “drive-drive”.

[21] Mr. Singh told the officer that he did not get a look at the female. He was only able to confirm that she was black and that her hair was shoulder length. He was unable to say the colour of her hair or whether it was straight or curly. When asked by the officer, he was also unable to give an approximate age for the woman.

[22] Once the man was in the vehicle, Mr. Singh saw it drive out of the plaza and proceed eastbound on Derry Road. The entire interaction happened very quickly. Mr. Singh confirmed that it was a Dodge Caravan and reconfirmed the licence plate. On the video, he is seen holding a piece of paper on which he appears to have written the licence plate number.

[23] Mr. Singh admitted that he was still in a bit of shock. When asked to confirm the time that the robbery occurred, he said between 10:20 and 10:25 p.m. He said that the man was black, wearing a skull cap, between 25 to 30 years of age, clean shaven, wearing a black t-shirt and was wearing a silver chain on his neck. When asked to clarify what he meant by a “skull cap”, Mr. Singh said it was a “normal cap”. On the video he is seen holding his hands up in front of his forehead and making a motion as if to indicate a baseball cap. He was asked if it was a “baseball cap” to which he responded “I think it’s a baseball cap”, “a pointer one”. He then demonstrated again, suggesting a round part to the front of the cap. He said that he did not see the colour of the cap.

Preliminary Inquiry Evidence: June 20, 2013

[24] Mr. Singh also testified at Ms. Brown’s preliminary inquiry. He was affirmed. He testified through an interpreter qualified in Punjabi.

[25] He testified that at 11:20 p.m. on July 19, 2012, he was at the intersection of Derry and Goreway. He was walking to a bus stop when he saw a black male following him. He thought the man was also going to the bus stop. When Mr. Singh reached the stop, he was hit from behind by the black male’s forearm. His Blackberry fell to the ground. The black male retrieved it and Mr. Singh said, “that phone is mine”. The man said: “No, no, it’s mine now.”

[26] The black male started to move back a little and Mr. Singh moved toward him. The male said not to follow him, but Mr. Singh said, “give me my phone”. At that point, the male took a gun out from his left side. He held it by his waist. Mr. Singh then moved back a bit. Mr. Singh told him to give him his phone back and the man said he would shoot him. Mr. Singh went forward one step, at which point the man pressed the trigger but nothing came out of the gun. The male then started to run toward a vehicle that appeared to be waiting for him. He was saying “drive, drive” as he ran.

[27] When asked how far the male was from the car at that point, Mr. Singh said that the car was in a parking lot right behind the bus stop, “leaving about two-three parking spots”. Although it is not entirely clear from the transcript, it appears that Mr. Singh was suggesting that the vehicle was about 20 or 25 feet away from the bus stop and close to a Mac’s Milk and the Pizza Nova (from where the 911 call was placed).

[28] Mr. Singh ran after the male and saw him get into the vehicle. He sat in the passenger’s seat. Mr. Singh got near to the door and saw a “lady” in the driver’s seat. She made the car go “very fast” and he noted down the licence plate number: BJNX 949. Mr. Singh testified that after that “the car there the next door there is an exit; it went towards there – that and it took-went on to Derry West.” He clarified that there is an exit by the “Mac’s store there”. Mr. Singh testified that the vehicle was a Dodge Caravan. It was “metallic” in colour and shiny.

[29] When asked to describe the female driver, Mr. Singh said she was black and her hair was at shoulder length. Upon cross-examination, Mr. Singh said that the driver looked like a woman. He rejected the suggestion that the driver might have been male. He was asked to look at Ms. Brown, who stood up in the courtroom. The following exchange occurred:

Q. Okay. This is Natalie Brown right here. Stand up, Ms. Brown. Have you ever seen this woman before?

A. No.

Q. No. Okay. Take a good look. This is-this is not the woman you saw in the van; would you agree?

A. I want to tell this that it was a woman with black colour and she was the driver. That’s all. I don’t know anything else.

Q. Okay. So sitting there today and looking at Ms. Brown you can’t say that this was the woman in the van?

A. I don’t have any idea about that.

[30] Although it did not require a ruling, I would not have admitted both the preliminary inquiry evidence and the statement given by Bhopinder Singh for the truth of their contents. When all issues were still live, there had been discussion about whether, if the preliminary inquiry evidence were to be ruled admissible, the admission of the prior statement given by Mr. Singh may offend the prior consistent statement rule. As it turned out, there was no need to rule on this issue given the agreement of counsel arising from my 911 call ruling.

[31] Since this matter was resolved by counsel following upon the 911 ruling, that both the statement and preliminary inquiry evidence should be admissible and considered for the truth of their contents, R. v. Rhayel, 2015 ONCA 377 has been released. In brief, the judgment highlights the concern over the use of videotape statements to bootstrap the credibility of prior evidence ruled admissible under s. 715 of the Criminal Code. When used for this purpose, these statements fail to meet the necessity component of the principled approach to the hearsay rule. As noted by Epstein J.A., prior consistent statements are “generally inadmissible because they lack probative value, are often self-serving, and are hearsay”: Rhayel, at para. 77. See also: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 36.

[32] Given the arguable evolution of the law that has occurred mid-trial in this case, as it relates to the use of prior statements for the truth of their contents, when prior sworn evidence is also admissible, I wish to be clear that I have not used consistencies between Mr. Singh’s statement to the police and his preliminary inquiry evidence to make enhanced credibility and reliability findings. To the contrary, and out of an abundance of caution, I have only used his prior statement for purposes of assessing the impact of any inconsistencies between the two as it relates to the credibility and the reliability of his preliminary inquiry evidence.

[33] In an admittedly cautious approach, despite the agreement of counsel, I only rely on the prior statement for anything that can assist Ms. Brown, but specifically eschew any approach to the prior statement that would cause a potentially improper chain of reasoning, that because Mr. Singh said something in his statement to the police that is the same as what he said in his evidence at the preliminary inquiry, that it is more likely to be true. I am conscious of the concern expressed by Feldman J.A. in R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.) at para. 28, and quoted with approval in Rhayel: “A concocted statement, repeated on more than one occasion, remains concocted.”

[34] With that said, I find Mr. Singh to have been a credible witness at the preliminary inquiry. While there are some minor differences between what he said in the 911 call, the statement and the preliminary inquiry evidence, I find that they are just that, minor differences. For instance, in the 911 call he said that the woman driving the getaway car was between 25 and 30 years of age. An hour later in his interview with the police, as well as at the preliminary inquiry, he said he did not know her age. By the time of the interview, he said that the man with the gun was between 25 and 30 years of age. I find that the discrepancy between the various statements is wholly related to the shock he was in when he made the 911 call. He had just been confronted by a man with a gun who had pulled the trigger while it was pointing at him. The confusion on his part, about whether it was the man or woman who was 25-30 years of age, is understandable in the circumstances.

[35] Defence counsel also commented on Mr. Singh’s confusion about the time of the incident. In the 911 call he said that the robbery had just happened. In his statement to the police, less than an hour after the 911 call, he said that he had crossed the street at about 11:15 p.m. When asked to clarify when the robbery occurred, he said about 10:20-10:25 p.m. At trial he said it was at about 11:20 p.m. I find that when Mr. Singh was asked for clarification about the timing of the incident during his interview with the police, he was simply wrong when he said 10:20-10:25 in the interview. Again, this is understandable given the emotional condition that he must have been in. I find that this was nothing more than a slip of the tongue.

[36] There is also an inconsistency between the 911 call and Mr. Singh’s statement to the police and his testimony at the preliminary inquiry respecting what he heard the male robber say as he approached the car. In the 911 call he said that he heard, “drive, drive, drive”, yet in the latter statement and in his evidence he testified that he heard, “drive, drive”. Again, this is a minor discrepancy that does not shake my confidence in his evidence at the preliminary inquiry.

[37] Indeed, while only in a position to read his evidence, and cognizant of the limitations that this has imposed, I find him an entirely credible witness. He did not exaggerate or take liberties. He seemed intent on only giving evidence that he knew to be accurate and truthful. This is perhaps best gleaned from his responses in cross-examination to whether he recognized Ms. Brown. He unhesitatingly said that he had not seen her before.

[38] Of course, there is also the fact that his evidence about the licence plate is entirely corroborated. It would defy all coincidence that Mr. Singh would take down Ms. Brown’s licence plate incorrectly, yet the vehicle be found with evidence from the second robbery in it when it was searched. This confirmatory evidence provides powerful support to Mr. Singh’s credibility and the reliability of his observations.

Search of Motor Vehicle

[39] As part of the Agreed Statement of Fact filed at trial, it was agreed that Ms. Brown owns a Pontiac Montana van, grey in colour, with the licence plate number: BJNX 949. This vehicle was located by the police at 2:00 a.m. on July 20, 2012. At that time it was parked on the north side of 43 Goldwin Court, Toronto. This was Ms. Brown’s residential address at the time. The van was described by the officer who found it as a “silver Pontiac Montana”. The van was seized under warrant and searched. It is agreed that the search of the van revealed:

1. Ms. Dhingra’s stolen bus tickets and receipt from the Springdale Pharmacy;

2. A black new Jersey Devils cap;

3. A letter to Revington Bailey, dated July 19, 2012, terminating his employment.

Reporting the Van Stolen

[40] It is agreed that Cst. Jeff Hynek of the Toronto Police Service [“TPS”] attended at 43 Goldwin Avenue on July 20, 2012 at around 11:02 a.m. He spoke with Ms. Brown who informed him that her van had been stolen. She said that the last time she had seen it was at about 12:20 a.m. when she had walked to a nearby 7-11 store to pick up snacks for her children. The van was there when she left for and returned from the 7-11 store. Ms. Brown told Cst. Hynek that she went to bed when she returned from the 7-11 store and when she awoke at 8:30 a.m., and looked outside, she discovered the vehicle was gone.

[41] It is also agreed that when Ms. Brown attended 12-Division in respect to this matter later in the day, she was accompanied by Revington Bailey.

Ms. Brown’s Statement to the Police

[42] Ms. Brown gave a statement to the police. Following upon a voir dire, I ruled the statement voluntary and admissible. In the statement, Ms. Brown told the police that her boyfriend was Revington Bailey. She said that she last saw her vehicle on July 20^th around 12:20 a.m. This is consistent with what she told the TPS when she reported it stolen on July 20^th. In her interview, she told Cst. Plummer that she had gone to a 7-11 to get milk at around midnight. Her van was there at that time, but when she awoke at 8:30 a.m. it was gone.

[43] Ms. Brown also said at the outset of the interview that the van had been parked and left unused since the previous Saturday, which would have been July 14, 2012. She initially said that she did not lend the car to anyone. She told Cst. Plummer that there are four keys to the van, but that only one key starts the ignition. She also told Cst. Plummer that the vehicle does not have insurance and that she was wanting to sell it.

[44] When asked about what she was doing on Thursday July 19, 2012, Ms. Brown initially said that she went out with her mother for a few hours in the afternoon. She was home by 3:00 p.m. and made dinner. Early in the interview she said that she stayed in all evening, until she left to get milk at midnight.

[45] She confirmed that her boyfriend was Revington Bailey and he is 27-years of age. Late in the interview, she admitted that she had loaned her vehicle to Revington Bailey during the evening of July 19, 2012. She said that he dropped her at a Bingo hall at between 7 and 7:30 p.m. She did not specify which Bingo hall. She said that she later called him to come, pick her up, and take her home. She said that he did so somewhere between 11:00 and 11:45 p.m.

Evidence of Viviana Valenzuela

[46] Ms. Valenzuela is a property manager for the City of Toronto. In July 2012, she managed the building that Ms. Brown was residing at, 43 Goldwin Avenue. At that time, she knew Ms. Brown to be a resident at that location. She would have some contact with Ms. Brown when, among other things, she would come to pay her rent.

[47] Ms. Valenzuela was asked about contact with Ms. Brown on July 20, 2012. She had some memory of this contact. She could remember that on that date, sometime around the lunch hour, before 1:00 p.m. (when she used to open the office), she ran into Ms. Brown in the courtyard area of 43 Goldwin Avenue. Ms. Brown was with a “young, black” man who appeared to be about Ms. Brown’s age.

[48] Ms. Valenzuela was asked to recount what, if anything, Ms. Brown said to her. She seemed to have some difficulty doing so. At first she testified as follows:

She approached me and she told me – I can’t remember exactly the words, but she mentioned something about her car being stolen, and that – and she’s like something about the videos, to don’t bother, don’t show the videos, that she’s dealing with her insurance – something like that ….

[49] When asked by Mr. Michaud to slow down and recount what Ms. Brown said, the witness testified:

She approach me and she says like, my car was stolen, something like that. I can’t remember exactly the words … and she says something like, don’t bother with the videos. I don’t need the – something about the videos, because we have a camera system in the building, and she mentioned something about her insurance ….

… She says that – yeah, she’s like, oh, don’t, don’t don’t show the videos to the police, don’t bother. I’m dealing with insurance. Something like that it was, like I … can’t recall exactly the words ….

[50] After asking the requisite questions, Mr. Michaud inquired of Ms. Valenzuela whether she wished to refresh her memory with the use of the statement she acknowledged having given to the police. She said that she had already reviewed the statement and she could not remember exactly what was said. She then repeated that she thought Ms. Brown said “don’t show the video, don’t give the videos to the – don’t show the videos because I’m dealing with my … insurance.” When asked by Crown counsel who Ms. Brown had told the witness not to show the videos to, she said: “I think that it was because of the police, she called the police already. I can’t – I’m sorry, I can’t … remember exactly.”

[51] Asked again whether she wished to refresh her memory with the use of her prior statement, she again reinforced that she had “read it already outside, but how I told you, I can’t remember exactly, exactly the words that it came out of her mouth that day”. The only thing she said that she remembered Ms. Brown saying “exactly” was that her car had been stolen. Over the next while, Mr. Michaud continued to make attempts to refresh the witness’ memory, but to no avail. She continued to reinforce: “I can’t remember exactly the words, but I remember that she mentioned to me that her car was stolen …”.

[52] She said that she was nervous testifying and struggling with a distraction arising from a health concern regarding one of her parents. Later on, her evidence morphed into: “I remember exactly when she said to me the – my car was stolen, that I think that she called the police or the police was there, something like that, and, and that she was going to deal with her insurance – something like that, it was.” This morphed into “she mention something that I think that she called the police, but for me to don’t bother with video – something, because she was going to do something with her insurance.”

[53] While the Crown contemplated embarking on a s. 9(2) Canada Evidence Act application, this did not materialize. Instead, Ms. Valenzuela’s preliminary inquiry transcript was resorted to. After asking the predicate questions, Mr. Michaud had the witness review a piece of the evidence she gave at the preliminary inquiry to see if it would refresh her memory. She said that it did not help to refresh her memory, but that it was “what I told you”, “the police, the video – yeah, looking at that, I, I can think, right, and something like that, it is what happened that day”. The witness then said, having reviewed the transcript, while she could not remember the exact words, she recalled:

She says my car was stolen, my car was stolen, something about the police, and she’s like don’t bother with the video, something like that, because she’s – she was doing something with her insurance. I can’t … Because I remember, and now I don’t remember.

[54] At the preliminary inquiry, the witness testified that Ms. Brown had told her: “please don’t show the videos to the police”. She only remembered mentioning “something like that, not exactly”.

[55] Ms. Valenzuela was not cross-examined.

[56] While I do not find that Ms. Valenzuela was intent on being a difficult witness, she proved to be such. In the end, based on what I have summarized above, I have no confidence in her ability to recall what it was that Ms. Brown said to her. Other than her certainty that Ms. Brown spoke to her about her stolen vehicle, and the fact that Ms. Brown was in the presence of a black male when they had this conversation, I have serious reservations about her ability to recall anything. Given those reservations, I simply cannot and do not rely upon her evidence.

Evidence of Veronica Bailey

[57] Ms. Veronica Bailey is the step-mother to Revington Bailey. While they were not close, they had a “good” relationship. Ms. Bailey testified that Mr. Bailey was married in Jamaica in either 2009 or 2010 to a Heather Bryant. He also had a girlfriend in 2011 by the name of Simone. Ms. Bailey knew what both of these women looked like.

[58] During the evening of July 19, 2012, she was at home recovering from a medical procedure. The home was located at 29 Penelope St., Brampton. Revington Bailey arrived home between 6:00 and 9:00 p.m. to retrieve his mail. He rang the doorbell. When Ms. Bailey attended at the door to speak with Mr. Bailey, she saw a van at the “corner”. While Ms. Bailey said she is not good with colours, the van was either beige or “silverish” in colour. She saw a woman in the van. The woman was not Simone. It was a lighter skinned girl. While Simone is a little darker or about the same colour as Ms. Bailey, the woman in the van had a lighter skin shade. Ms. Bailey saw her sitting on the “left side” of the van. She was in the front of the van, but she cannot remember if it was the driver or passenger’s side of the van. It was established in cross-examination that the roadway from Ms. Bailey’s door is about 6.7 metres in distance. The van was parked a little down the roadway.

[59] She had not seen the woman in the van before. It was neither Simone nor Heather. Ms. Bailey only saw the woman from a “side glance” and so she could not say how old she was. She had black hair. Ms. Bailey was confident it looked like a girl because of the hair.

[60] Mr. Bailey only stayed at the door for about five minutes. He then told Ms. Bailey to go into the house. She did not see him again that evening.

[61] I found Veronica Bailey to be an honest and forthright witness. While she was clearly unimpressed with having to come to court and testify, it appeared to me that she made every effort to provide evidence that accorded with her best recollection. The Crown took steps on a few occasions to refresh Ms. Bailey’s memory and she adopted what she had previously said to the police. When asked whether she was endeavouring to be truthful when she spoke with the police, she seemed almost offended at the thought that she would not be truthful with them. I was impressed by her candour and forthright manner.

[62] I find that she was left unshaken in cross-examination. She exuded confidence that she knew Revington Bailey’s wife and girlfriend (Heather and Simone respectively) and the woman she saw in the van was neither of these women. The woman in the van had lighter skin than Ms. Bailey.

[63] While it is open to a trial judge to make observations of an accused and assess it against the evidence in the case, R. v. Slater, 2010 ONCA 376 at paras. 3-4, I am reluctant to do so here. While the Crown did not have to ask Ms. Bailey how Ms. Brown’s skin colour compared with the skin colour of the woman she had seen in the van, the decision not to ask that question leaves me assessing a matter that, in the circumstances of this case, seems somewhat nuanced. Shades of skin colour can be difficult to assess and, while I have looked at Ms. Brown relative to Ms. Bailey, I do not have confidence that I am seeing a sufficient difference to rely upon it in this trial. I do not do so.

[64] I believe her evidence.

Cell Phone Evidence

[65] It is agreed that on July 19, 2012, Ms. Brown’s cell phone number was 416-409-5837. It is further agreed that Revington Bailey’s cell phone number was 647-989-7330. The telephone records, including location history, for these phones on July 19, 2012, was admitted on consent.

[66] In addition, Lorne Ellison, a senior investigator in the law enforcement and support department of Rogers Communications, testified at trial. He testified about how to interpret the cell phone records. Much of his evidence was focussed on tower location information.

[67] Mr. Ellison testified that the general rule is that when using a cell phone in a way that requires a connection through a cell tower, the phone will seek out the strongest and closest signal. This will typically come from the closest tower but there are things that can result in a phone connecting to a further away tower. He used examples like high hills and tall buildings interfering with the sight line between the phone and tower. Where this interference occurs, the signal from the phone will bounce to the next closest tower with the strongest signal. It is not possible to know whether a device is bouncing off of the closest tower to it or, whether based upon an exception to the rule, the signal has bounced to the next closest tower with the strongest signal.

[68] As for the times reflected on the records, Mr. Ellison testified that they are as accurate “as possible”, cautioning that they are business records and not developed for purposes of law enforcement. He testified that the time reflected on the records is based on the atomic clock which is the “closest” measurement of time.

[69] The records filed on consent in this proceeding are for both Ms. Brown and Mr. Bailey’s phones. Other than one call at 3:35:35 p.m. on July 19^th, Mr. Bailey and Ms. Brown’s devices do not connect, one with the other, on that day. While Ms. Brown’s device appears to have been used more during the evening of July 19^th, both of their devices can be seen to travel in a very distinct pattern, commencing early in the evening, at a tower located close to 43 Goldwin Avenue. I have attached as Appendix “A” to this judgment, exhibit “1K” at trial. It provides a helpful snapshot of the locations of the towers connected to by the Brown and Bailey phones, the locations of the robberies, and the residences of Ms. Brown and Mr. Bailey. It also catalogues times that the phones connected with the various towers.

[70] What follows is a brief summary of the phone usage. In general, and at its core, Mr. Bailey and Ms. Brown’s electronic devices can be seen to move in a very distinct pattern over the course of the evening of July 19, 2012. They start bouncing off of a tower close to Ms. Brown’s residence, move north and eventually west toward Ms. Veronica Bailey’s residence at 29 Penelope Street. The devices then move in a south-westerly direction toward the general area where the robberies occurred.

[71] I have summarized the tower evidence as follows:

1. Between 5:00:01 and 6:36:14 p.m., both Ms. Brown and Mr. Bailey’s devices are connecting to a tower very close to 43 Goldwin Avenue: the “Jane and Weston” tower.

2. At 7:38:20 p.m., Ms. Brown’s device is connecting to a tower located at Highways 400 and 401: the “HWY 400 & 401” tower.

3. Between 7:57:49 and 8:02:15 p.m., Mr. Bailey’s phone connects to a tower at Jane Street and Applewood Crescent, directly north of 43 Goldwin Avenue and north of Highway 407. It connects to this tower three times in less than a five minute period: the “Jane St. & Applewood Cres.” tower.

4. At 8:03:34 p.m. Ms. Brown’s phone uses a tower at Highway 400 and Highway 7. Mr. Bailey’s phone uses that tower at 8:55:14. This tower is slightly southwest of the Jane and Applewood tower: the “HWY 400 & HWY 7 Cloverleaf” tower.

5. A short distance to the west of the Highways 400 and 7 tower, is a tower located at Highway 7 and Nova Star Drive. Between 8:20:53 p.m. and 8:29:01, Mr. Bailey’s device connects to this tower on seven occasions. Ms. Brown’s device connects to this tower at 8:34:34 p.m.: the “HWY 7 & Nova Star Dr.” tower.

6. Proceeding then in a south-westerly direction, Mr. Bailey’s device connects to a tower at Highway 7 and Islington Avenue at 9:11:42 p.m.: the “HWY 7 & Islington” tower.

7. Continuing to the west, Ms. Brown’s device started connecting with a tower at Highway 7 and Huntington Road. Her device first connects with this tower at 9:32:29 p.m. and last connects with it at 9:45:58 p.m.: the “HWY 7 & Huntington Rd” tower. It can be seen from Appendix “A” that this tower is close to 29 Penelope Street. While there was some evidence led through Mr. Ellison respecting which part of the HWY 7 and Huntington Road tower Ms. Brown’s device was connecting to, it is not clear to me from the radius maps filed that the tower was within a radius covering 29 Penelope Street.

8. Both of Mr. Bailey and Ms. Brown’s devices then start connecting with a tower even closer to 29 Penelope Street. This is known as the “Brampton” tower and Lorne Ellison testified about the radius it captures. The radius maps for this tower were filed as exhibits in this proceeding and it is clear that the radius for this tower covers 28 Penelope Street.

It is also clear from the evidence of Lorne Ellison that tower can be broken up into sections. Phone signals do not simply bounce off of a tower, they connect to a section of a tower. The section extends out into a pie shape, reaching the end of the radius that marks the perimeter for the tower’s reach. It is clear from Mr. Ellison’s evidence that, at points, Ms. Brown’s phone was within a part of the Brampton tower’s radius that included 29 Penelope Street.

Between 9:29:26 p.m. and 10:03:07 p.m., Ms. Brown and Mr. Bailey’s phones used this tower on a number of occasions, the last two being Mr. Bailey’s phone.

9. During the same period of time that Ms. Brown and Mr. Bailey’s phones were connecting to the “Brampton” tower, they were also connecting to a tower to the north, at Highway 50 and Mayfield Road: the “HWY 50 & Mayfield Rd.” tower. Mr. Bailey’s device used the tower at 9:45:29 p.m. and Ms. Brown’s device used it at 9:47:36 p.m.

10. Following on this cell tower activity, Ms. Brown’s device then started to connect to a tower to the south-west: the “Steeles & Airport Rd” tower. The first connection to that tower was made at 10:11:59 p.m. and the last one was at 10:15:30 p.m. Mr. Ellison was asked about this last connection and testified that it would have been a voice call of 587 seconds duration. While no radius maps were filed in respect to this tower, what is clear on Appendix “A”, is that the Steeles and Airport Road tower is close to Steeles Avenue and Torbram Road, the scene of the first robbery.

11. Finally, at 10:34:04 p.m., Ms. Brown’s device connected to the “Williams Parkway and Bramalea” tower. Again, while no radius map was filed, this tower is to the east of Bovaird Drive and Dixie Road, close to the scene of the second robbery.

[72] There are a few crucial pieces of evidence gleaned from the cell phone information. First, Mr. Bailey and Ms. Brown, despite being boyfriend and girlfriend, were not communicating over their devices after 3:36:35 p.m. on July 19, 2012. While this does not, on its own, suggest they were together, the rest of the records point in that direction.

[73] For instance, Mr. Bailey’s phone is connecting to a tower that is, for the most part, overlapping with Ms. Brown’s residential address until 5:11:41 p.m. After that time, there are no less than four towers that their devices both bounce off of in the same general periods of time during that evening. While Ms. Brown’s phone is used a great deal more than Mr. Bailey’s, their devices seem to have an established pattern of togetherness during that evening.

[74] Ms. Brown’s device is also very close to 29 Penelope Street and it is being used a great deal, connecting to two towers in the same period of time. Then the device is on the move again, eventually ending up to the southwest and closer to the scenes of the first two robberies.

[75] Ms. Brown’s device bounces off of a tower close to the scene of the first robbery five times, the last call being connected at 10:15:30 p.m. and lasting close to 10 minutes, meaning it would have ended close to 10:25 p.m. The first robbery occurred at approximately 10:25 p.m.

[76] As for the second robbery, Ms. Brown’s cell phone connects to a tower close to that location at 10:34:04 p.m. That robbery occurred just over 20 minutes later, at approximately 10:57 p.m.

[77] I instruct myself and am aware that this cell tower evidence is nothing more than another piece of circumstantial evidence, that must be considered along with all of the other evidence in the case: R. v. Hamilton et al., 2011 ONCA 399, at para. 345.

Legal Issues

Generally

[78] Before embarking on my factual findings and ultimate judgment, I remind myself about a few legal matters. First, while Ms. Brown did not testify, there is evidence that came out in the Crown’s case that is favourable to her. For instance, the fact that Mr. Singh said he had not seen her before is a favourable item of evidence and could raise a doubt. To the extent that I find evidence that came out during the trial favourable to the Ms. Brown, even if I do not accept that evidence, if it raises a reasonable doubt in my mind, I must acquit Ms. Brown.

[79] Even if the evidence that I find favourable to Ms. Brown does not leave me with a reasonable doubt about her guilt, I may only convict Ms. Brown on each individual count if I find that her guilt has been proven beyond a reasonable doubt.

[80] I instruct myself on the threshold for reasonable doubt. Ms. Brown is presumed innocent on all counts and this presumption is only displaced if her guilt has been established beyond a reasonable doubt. Reasonable doubt can arise from both the evidence presented and the lack of evidence: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] S.C.J. No. 77. It is not a far-fetched or frivolous doubt. It is based on reason and common sense and logically flows from the evidence or lack of evidence. Probable guilt is not proof beyond a reasonable doubt.

[81] The prosecution’s case rests on circumstantial evidence. I remind myself of the fact that, in cases of this nature, the proper approach is to assess the evidence cumulatively and as a whole. To find guilt in a circumstantial case, I must be satisfied that guilt is the only rational inference to be taken from the evidence. As noted in R. v. Griffin, 2009 SCC 28 at para. 33:

The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they 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. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 1997 CanLII 867 (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 2000 CanLII 2688 (ON CA), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29.

[82] As noted recently in R. v. Mufuta, 2015 ONCA 50 at para. 49: "[the] Crown must prove guilt beyond a reasonable doubt, which burden carries with it, in a circumstantial case, the duty of excluding all rational conclusions alternative to guilt.".

Count-to-Count Consideration

[83] As it relates to the multi-count indictment here, typically the evidence in respect to one count may not be used to bootstrap the Crown’s proof in respect to other counts. In order for this general rule to be forgone, the evidence must meet the admission criteria for similar act evidence. Here, the parties agreed that the allegations were sufficiently similar to justify count-to-count cross-pollination. I agree.

[84] The probative value of similar act evidence, whether of extrinsic or intrinsic misconduct, must enjoy a sufficiently probative quality that it outweighs its prejudicial effect, justifying its reception into evidence, or, in the case of intrinsic misconduct, its consideration on other counts: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 [Handy] at para. 55. The probative value of evidence will depend on what it seeks to establish and the strength of the link between the proposed evidence and the fact in issue. Where similar acts are proffered to establish identity of the perpetrator, as they are here, then a “high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence”: R. v. MacCormack, 2009 ONCA 72 [MacCormack] at para. 50. See also: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at para. 43. While a signature unique to the incidents will enhance the probative value of the evidence, it is not required, provided that, approached cumulatively, there are sufficient similarities to warrant admission of the evidence: Handy, at para. 81.

[85] As noted by Watt J.A. in MacCormack, the similarity inquiry is to be done on a case-by-case basis and involves a consideration of all relevant factors, including:

i. Proximity in time and place;

ii. Similarity in detail and circumstances;

iii. Number of occurrences;

iv. Any distinctive feature(s) unifying the various incidents;

v. Intervening events; and

vi. Any other factor that tends to support or rebut the underlying unity of the similar acts.

See: MacCormack at para. 53; Handy at para. 82; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 at para. 22.

[86] Here, there are numerous similarities. The robberies occurred within about a 1 hour time frame. They occurred in close proximity to each other. They each involved a black man with a gun. They each involved bus stops. They each involved stolen handheld devices. In two of them, the male was seen running to and entering a vehicle. In both of those incidents, he did not enter the driver’s seat.

[87] I agree with counsel that there is an improbability of coincidence when it comes to the similarity between the acts in this case.

[88] There must also be a demonstrated link between the accused and the similar acts. This is a precondition to admissibility. In a trial like this, on a multi-count indictment, “the link between the accused and an individual count will be relevant to the issue of identity on the other counts that disclose the required degree of similarity in the manner in which those offences were committed”: MacCormack at para. 59. Here, I find that there is a good deal of such evidence, including, but not limited to the fact of the cell phone data, the third robbery victim getting the licence plate for Ms. Brown’s vehicle, the locating of the second robbery victim’s receipt in her vehicle, and so on. Ms. Brown is already linked to one, if not more of the robberies.

The Elements of Robbery

[89] Robbery involves three critical elements:

1. that the accused stole something from the complainant;

2. that the accused used violence or threats of violence in doing so; and

3. that the accused used or threatened to use violence for the purpose of carrying out the stealing.

[90] The first two elements are easily met and non-controversial in this case. I find as a fact that three people had their phones stolen and more in the case of Ms. Dhingra. At a minimum, in each case a threat of violence was used. Each of the victims saw the gun. In the case of Ms. Dhingra the gun was pointed at her and then fired into the grass. In the case of Mr. Singh it was fired at him, but a bullet did not emerge. Mr. Singh was also assaulted from behind. The first two elements are met.

[91] The third element of robbery, the threat or use of violence for the purpose of carrying out the stealing, can involve three different things: (1) to obtain what is stolen; (2) to prevent resistance to the stealing; or (3) to overcome resistance to the stealing. In this case, it is clear that Revington Bailey, who I find acted as the principal in each of the robberies, used a threat of violence and, in the case of Mr. Singh, violence, to achieve all three purposes: obtain the cell phones and related items, prevent resistance that was being shown in the case of Ms. Dhingra and Mr. Singh, and to overcome resistance.

The Approach to Aiding

[92] In this case, it is alleged that Ms. Brown acted as the getaway driver. The Crown theory is that she falls within s. 21(1)(b) of the Criminal Code, doing something “for the purpose of aiding any person [in this case, Revington Bailey] to commit the robberies. Being an aider to an offence makes an individual a party to the offence within s. 21(1) of the Code.

[93] It is a matter of indifference at law whether an individual personally commits a crime or aids and abets another in the commission of crime: R. v. Pickton, 2010 SCC 32 at para. 51; R. v. Maciel, 2007 ONCA 196, leave to S.C.C refused [2007] S.C.C.A. No. 258 at para. 85. At its core, aiding within the meaning of s. 21(1)(b) means helping the principal offender to commit the offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 [Briscoe] at para. 14.

[94] There are three elements that must be proven in respect to an aider to an offence:

i. the offence was committed

[95] The Crown must prove beyond a reasonable doubt that the offence charged was committed. This element has been conceded in respect to the first and second counts of robbery. As it relates to the third count, I accept Mr. Singh’s evidence from the preliminary inquiry and find beyond a reasonable doubt that he was robbed as well.

ii. the accused aided its commission: conduct requirement

[96] This is known as the conduct requirement. In order to be found guilty as an aider, the accused must have said or done something to aid in the commission of the offence. The aider need not be present for the commission of the actual offence. There need not be an agreement between the principal and aider. All that must be proven is that the aider did something (or in some cases omitted to do something that was his or her legal duty), that actually assists the principal in committing the offence: R. v. Almarales, 2008 ONCA 692 at paras. 66-67. In short, there must be some connection between the act of aiding and the commission of the offence.

iii. the accused did so with the requisite mens rea

[97] When it comes to the mens rea for a person aiding in an offence, he or she must do or omit to do something for the purpose of aiding the principal to commit the offence. This means that the aider must know the principal intended to commit the offence and the aider must have intended to assist the principal in some way. In the end, to be found guilty of aiding in an offence, the aider’s purpose must be to aid in that offence: R. v. Helsdon (2007), 2007 ONCA 54, 216 C.C.C. (3d) 1 (Ont. C.A.) at para. 38.

[98] This constitutes a specific intent offence and recklessness will not suffice: R. v. Roach (2004), 2004 CanLII 59974 (ON CA), 192 C.C.C. (3d) 557 (Ont. C.A.) at para. 44. The “purpose” requirement for mens rea was addressed in Briscoe at para. 16: “The mens rea requirement reflected in the word ‘purpose’ under s. 21(1)(b) has two components: intent and knowledge.” Purpose is synonymous with intention to assist the principal.

[99] Wilful blindness can substitute for knowledge. Wilful blindness exists where the accused strongly suspects that the principal intends to commit a specific offence and deliberately chooses not to inquire. To be wilfully blind, the person must know there is a need to inquire and makes a deliberate decision to remain ignorant because he or she does not wish to know the truth: Briscoe at paras. 21-25; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at p. 584.

Findings

Did Revington Bailey commit the robberies?

[100] On the basis of all of the evidence I have heard, I am satisfied that Mr. Bailey robbed each of the three victims. It is agreed that he was the robber in the first two matters. I then consider the similarities in respect to the third robbery.

• each was committed by a black male;

• each was committed at night and within a one hour time span;

• each was committed within a close geographic radius one to the other;

• each targeted people at bus shelters;

• each targeted cellular phones;

• each robbery used the threat of force and in one case, actual force;

• each involved the threatened use, and in two cases, use of a firearm.

[101] The evidence points toward Mr. Bailey in respect to each of the robberies. The van bearing the licence plate that the final robbery victim so ably obtained, contained a termination letter for Mr. Bailey on the very day the robberies were committed. While not using his cellular phone as much as Ms. Brown, like hers, his phone (which I find he was using on the night in question) travelled in a pattern that ultimately took him to a location close to his step-mother’s residence not long before the robberies commenced. As seen in Appendix “A” to this judgment, her residence is not far from where the robberies occurred.

[102] Ms. Veronica Bailey was clear that he arrived at her residence to retrieve his mail. She connected a van on the street, either a beige or “silverish” colour, to the vehicle he had arrived in. A woman was in the van. While Ms. Bailey’s time for when Mr. Bailey was at her door seems to be earlier than when his and Ms. Brown’s phones were connecting to the towers closest to her home, I am not concerned by this piece of evidence. As above, I found that Ms. Bailey was an honest and forthright witness. It may be that she has an imperfect recollection of the exact time he was at her door and it may have been a bit later than the outside edges of the zone she gave at 9:00 p.m. Either that, or, he was at her door between 6:00 and 9:00 p.m. and simply stayed in that general area after that time. Either way, I am unconcerned. What is of critical importance is the fact that Mr. Bailey and Ms. Brown’s phones are in that area of 29 Penelope Street, providing some corroboration to Ms. Bailey’s evidence and the observations she made.

[103] Based on all of the evidence heard, I am satisfied beyond a reasonable doubt that Mr. Bailey committed all three robberies. He was the principal in these crimes.

Was Ms. Brown an aider to the robberies?

[104] I find beyond a reasonable doubt that Ms. Brown aided Mr. Bailey in the second and third robberies. I have a doubt on the first one. Here are my reasons why.

[105] The Crown argues that there is an “extreme unlikelihood” that Mr. Bailey would have used different drivers to commit the robberies. I agree that this is the case. But that does not answer the full question. Not only must Ms. Brown be the driver, but to conclude that she aided Mr. Bailey in the robberies, she must have either intended to assist him in the robberies by driving the vehicle or been wilfully blind in this regard. It is here that I find a weak link in respect to the first robbery.

[106] I have no doubt that Ms. Brown was driving her van the night of July 19, 2012 and that her van was used in the robberies. Ms. Brown’s cellular device was in and around the location of the robberies. She has an association with Revington Bailey, having admitted he was her boyfriend in July of 2012. Her cellular phone moves in a similar pattern to Mr. Bailey’s phone during the evening of July 19, 2012. I find as a fact that they were driving together in her van that evening. I also find as a fact that it was Ms. Brown who Ms. Veronica Bailey saw from her door the night of July 19, 2012.

[107] I find that Mr. Singh accurately obtained the licence plate for the vehicle that was used in the third robbery. This is confirmed by the fact that Ms. Dhingra’s receipt and tickets were found in the van.

[108] When Ms. Bailey attended at the TPS 12 Division she was with Revington Bailey. At the beginning of her interview with Officer Plummer, she was desperate to distance herself from her van, suggesting that she had not driven it for about a week. She was also desperate to place herself at home for the evening of July 19, 2012, suggesting that she returned home at 3:00 p.m. that afternoon, after being out with her mother. She initially told Officer Plummer that she stayed in until the milk run at midnight.

[109] Later in the interview, likely when she felt that the police were closing in, she suggested that she had loaned the van to Revington Bailey for the evening and she had gone to a Bingo hall. We know now, based on the cellular records filed, that if Ms. Brown was using her phone during the evening of July 19, 2012, neither of these things could be true. I find as a fact that she was using her phone that evening. It defies common sense that someone else would be using her phone so much.

[110] While Mr. Singh said at the preliminary inquiry that he had not seen Ms. Brown before, and I accept this evidence, he was very clear that he was able to make out very little of the female driver. He qualified his answer by saying: “I want to tell this that it was a woman with black colour and she was the driver. That’s all. I don’t know anything else.” I find that Mr. Singh was a truthful witness. He simply did not have an opportunity to make a detailed observation of Ms. Brown behind the driver’s wheel, which I find she was during the second and third robberies. Mr. Singh’s evidence does not mean that Ms. Brown was not the driver and it does not raise a doubt in my mind. Rather, taken as a whole, his evidence was that he simply did not make sufficient observations of the female driver to provide a positive identification.

[111] I find that Ms. Brown’s phone usage, connecting to the cell towers in close geographical and time proximity to the first two robberies, strong circumstantial evidence.

[112] Importantly, as above, and as confirmed by Mr. Ellison, she was on the phone also up to the time of the first robbery, connecting with the Steeles & Airport Rd tower at 10:15 p.m. for an almost 10 minute call. This evidence causes me to doubt whether Ms. Brown knew that Mr. Bailey was about to commit the first robbery. While I find that she was driving the van that night, she had to have known that Bailey was going to do what he did (or be wilfully blind about that fact) and intend to assist him in that endeavour. I have a reasonable doubt about whether she was caught unaware by Bailey’s conduct during the first bus stop robbery.

[113] Nonetheless, I am satisfied beyond a reasonable doubt in respect to counts 2 and 3. By the time that Bailey would have returned to the van after the first robbery, Ms. Brown must have known and I find, did in fact know, that he had just robbed someone. She then drove close to the next bus stop and waited for his return. She then drove close to the third bus stop and waited for his return. Based on a totality of the evidence, I find beyond a reasonable doubt that Ms. Brown knew by robbery 2 that Mr. Bailey was about to commit a robbery and she was intent on aiding him in that endeavour. I find beyond a reasonable doubt, also based on the totality of evidence, that Ms. Brown knew that Mr. Bailey was going to commit another robbery, the third robbery, and she was intent on aiding him in that respect.

[114] I find that in respect to both of these matters, she waited in her parked van for his return and made for a fast getaway.

[115] I find Ms. Brown not guilty on count 1. I find Ms. Brown guilty on counts 2 and 3.

FAIRBURN J

Released: June 9, 2015

COURT FILE NO.: CRIM(P) 382/13

DATE: 2015 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

NATALIE BROWN

REASONS FOR JUDGMENT

FAIRBURN J

Released: June 9, 2015