ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-0029

DATE: 2014 06 19

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRAVON EDWARDS

Defendant

Sarah Stackhouse, for the Crown

Richard O’Brien, for the Defendant

HEARD: May 27,28, 29, 2014

REASONS FOR JUDGMENT

M. J. Donohue, J:

THE CHARGES

Count 1: Robbery S. 343(a) June 19, 2013

Count 2: Intent to Commit Robbery s. 351(2) June 19, 2013

Count 3: Robbery s. 343(a) July 22, 2013

Count 4: Being Masked with Intent to Commit Robbery s. 351(1) July 22, 2013

OVERVIEW

[1] Two robberies were committed in the early summer of 2013 at the same shopping mall jewellery store. The sole issue in this case is the identity of the robber.

[2] The defendant is charged with two counts of robbery, one count of intent to commit robbery and one count of being masked with intent to commit robbery.

[3] The primary witness was the storeowner aided by his store surveillance videos. Expert opinion evidence was provided regarding fingerprint analysis.

THE EVIDENCE HEARD AT TRIAL

[4] It was not disputed that there were two robberies; one on June 19, 2013 and the other on July 22, 2013 at Mirani Jewellery Store at Shopper’s World mall in Brampton.

[5] The retail value of stock taken on June 19, 2013 was $109,998.72 and on June 22, 2013, $30,455. The wholesale value of the stock was $$27,499.68 and $8,603.54 respectively. The jewellery stolen was all necklaces and chains and all was taken from showcases 4, 5, and 6 on both occasions.

[6] The layout of the store is depicted in photographs and on video. The owner testified that the store is 600 square feet. It has a wide opening to the mall walkway. Within the store are glass showcases in an L shape backed by an area for the owner to walk behind but not accessible to customers. The back wall behind the showcases has open display areas for jewellery such as gold chains.

[7] There are four surveillance cameras, which took 20 second footage of each robbery from four different angles. The action is clear but the focus is blurred on detail such as faces.

[8] The storeowner testified that he had not had any other robberies in the twelve or thirteen years that he owned the store except for a “grab and run” incident. In that case, a customer asked to see item. When shown the item they grabbed it from him and ran. The subject robberies were very different from that previous occasion.

Re Robbery #1 June 19, 2013

[9] The owner of Mirani Jewellery is Mr. Karakulak. He testified about both events and confirmed the surveillance video for both events.

[10] He described the incident of June 19, 2013 that occurred just before lunch on a weekday.

[11] Mr. Karakulak stated that he was alone in the store except for two potential customers who worked in the mall. They were identified in the video as wearing nursing outfits. His evidence was that a man with a duffle bag stood outside the store and another man ran into the store and vaulted or hopped the display counter into the clerk area.

[12] He said the man quickly grabbed the heaviest or largest gold chain necklaces from one of the open displays and strung them on his left hand.

[13] The man that jumped the counter had done so to the left of the store as he entered. When he exited he vaulted or hopped the countertop to the right of the store. He ran off with the other man from outside that had been carrying the duffle bag.

[14] Mr. Karakulak testified that he had no physical contact or words with the intruder; he just yelled for security and pressed the store panic button. He was frightened and felt violated. He was recovering from back surgery, six days prior.

[15] He stated that police came and dusted for prints. He could not say when the counters of the display cases were cleaned other than “periodically”.

[16] Mr. Karakulak described the man outside with the duffle bag as wearing an Adidas striped jacket with a hoodie. His description of the intruder was that he was black, tall, perhaps 6’3”, in his mid 20s, wearing Adidas striped black pants, a black hoodie and a navy balaclava or bandana on his face.

[17] Mr. Karakulak stated that at times the bandana slipped down such that he could see part of the intruder’s face. He saw his eyes and nose. He could not describe the man’s face in any way. He could not say whether the man had facial hair, or markings, scars or blemishes on his face. He could not give any distinguishing marks or details of the face and said he was unable to describe it. He confirms that he did not volunteer to the police that he had seen the man’s face.

[18] The video surveillance of the camera at 11:29:00 does show the intruder’s nose and mouth, consistent with the owner’s evidence that the face covering slipped down.

[19] The video surveillance also confirms the manner in which the one man came to stand outside the store with the duffle bag while the intruder loped in, vaulted the cabinets, gathered items and then vaulted out to join the other man and run off.

[20] The video surveillance shows a young black man wearing a hoodie and a dark face covering at times, Adidas pants and a dark hoodie with the hood up. He appears to have very long legs.

[21] A second witness, Michael Aigbokie, testified. He worked at the Rogers store adjacent to Mirani Jewellers. He heard a noise and observed two men run to the mall exit facing Charolais Blvd. He observed them go out the door and run across to an apartment building called Brampton Towers.

[22] The only description that Mr. Aigbokie could give was that one man was tall, perhaps 5’11’ or 6 feet and the other was perhaps 5’10. He confirmed they were black and looked to be in their 20s.

[23] Identity is not established with this general description.

[24] A third witness, Kamaluddin Jaffarally, was an employee of a bar, ‘kitty corner’ to Mirani Jewellers. He could see into the Jewellers and observed the two men in hoodies.

[25] The evidence of these three witnesses, individually or combined, is insufficient to establish identity.

Re Robbery#2 July 22, 2013

[26] Mr. Karakulak testified that around lunchtime on a later weekday he was working alone in his store. He did not have any customers. He observed an intruder run in, hurdle the counter and grab chains, putting them onto the man’s left arm. This time the intruder was alone. The intruder had a duffle bag with him but left it on the floor. The intruder hopped the counter on the left side of the store, similar to the incident in June. Exiting, however, he hopped over the counter at the left side of the store, which was different from the previous incident when the intruder left from the right side of the store.

[27] The owner said the intruder was wearing a gray or white T-shirt, gray pants, a ball cap, “corn locks” or rows in his hair, and a balaclava or covering on his face. Again he said the covering slid down and he could see the man’s face. He said the intruder was in his mid-20s.

[28] Mr. Karakulak agreed that he did not state to police that he had seen the man’s face.

[29] The video shows that the intruder’s nose was visible at frame 12:57:22.

[30] Mr. Karakulak said, “he thought” it was the same guy as the intruder in the June 11, 2013 incident. He described that this intruder had the same “modus operandi” of jumping the counters to grab the chains and jumping back out to run away.

[31] Two other mall store employees made some observations. Nancy Greene heard a commotion and observed a man run past her store. He was grabbing his pants up and yanking down a dark bandana from his face. She observed him run out the mall entrance facing Charolais Blvd. She followed and observed him to be running outside the mall to the Brampton Towers, also known as the Charolais Towers.

[32] Mr. Jaffarally, who worked in Scenes bar, kitty-corner to the Jewellers, testified that he saw the intruder in the store around 1:00 o’clock. He saw the intruder vaulting the counter top upon exiting the store, and as he did the intruder’s mask fell. The intruder had something in hand which may have been a chain. Mr. Jaffarally described him as very tall, skinny man with dark skin. He observed the intruder exit the mall and go to the first building by the mall which he thought was 95 Charolais.

[33] Neither the storeowner’s evidence nor the video evidence, alone or combined with the other eyewitnesses’ evidence is sufficient to identify the intruder.

Fingerprint Identification

[34] Constable Hofstetter gave expert opinion evidence. His expertise in forensic fingerprint identification was admitted. He testified that there are unique friction ridges on a person’s fingers that are formed while a person is still in the womb. Contaminants on the ridges such as sweat, oils, paint or blood, act as a stamp on an object and leave indentations on certain objects, which can serve as an identifying print for analysis.

[35] With some latent prints he can observe the ridges with the naked eye or with a flashlight. Others are not visible and he uses powder, which adheres to the ridges and gives contrast to what is otherwise not visible. He can then photograph them and sometimes lift them on to an acetate sheet.

[36] He explained that to compare fingerprints he uses both a quantitative and a qualitative approach. He looks for similarities and dissimilarities and considers the print as a whole. He stated that, at one time, the fingerprint analyst simply counted ten or twelve points of similarities to conclude there was a match. His approach is more thorough and he demonstrated the line-by-line, or ridge-by-ridge, comparison that he undertook. As well, he looked for the ridge flow, deviations, bifurcations, ridge dots or lakes, ridge endings and any other unique characteristics in the entire print.

[37] Once he concluded his analysis, it was reviewed with other similar prints by a third party, Constable Pflug, to consider whether the analysis was correct.

Analysis Re Robbery #2 July 22, 2013

[38] Constable Hofstetter was called on July 22, 2013 to do a fingerprint analysis at Mirani Jewellers around 1:30 p.m. He recalls it was a very hot day. He took photographs of the store and of the prints that he found. The photograph from the mall looking into the store showed the display cabinets to the left of the store oriented in a north-south orientation.

[39] That day, Constable Hofstetter found several latent impressions on the counters of the cabinets. The prints he analysed were wet and glistening. They did not need powdering and could be photographed as they were. The fact that they were wet suggested to him that they were recent.

[40] He found one print, labeled R1, which he determined was the left palm that was made with the left hand in an east-west orientation. There was some sliding of the print in an easterly direction. Another print of the left ring finger, labeled R2, was found in the same orientation.

[41] The officer reviewed the videos that day at the store. In his opinion, the location of these two prints matched the video of the intruder as he vaulted these counters on his way in to commit the offence. The orientation of the left hand in the photograph is consistent with these two prints.

[42] A third print, R3, he considered to be the right palm. It was oriented in a north-south direction, also consistent with the video still as the intruder vaulted into the clerk’s area of the store. The impression and orientation of the contact for both ran north to south.

[43] He explained that he used the automated fingerprint identification system to upload scanned copies of the prints. The computer marks the secondary ridges and bifurcations and converts them into a formula. It is submitted to the RCMP in Ottawa. Based on a mathematical relationship to the formula the computer provides the top twenty responding prints. It is then up to the analyst, himself, to determine if there is a match.

[44] In this case he found the three prints matched those of the defendant.

[45] Constable Hofstetter did a visual display of how each line of the print found is marked and then compared with the “Known” print. He confirmed that he found no dissimilarities between the prints he took from the store and those known to be of the defendant.

[46] On cross-examination, he explained that he did not attempt to measure the distances of the prints on the counters with the prints in the video because the two views are from different perspectives. The video was taken from the ceiling and the counters were photographed from ground level. As the angles and perspectives are different, he said they would not be directly compared.

[47] It was pointed out to the officer that the prints did not look identical to those of the defendant. He agreed to this but stated they seldom were identical in the field to those done in the controlled environment of a police station using ink and paper and an even pressure. He explained that the print sliding and uneven pressure or different contaminant will impact on ridges but not on the relationship of the ridges to one another. The flow of the ridges remains constant even with distortion by twisting, sliding, or uneven pressure. It is the spatial relationship that remains the same in each unique print.

[48] The officer pointed out that although he did not rely on simply counting points of similarities he nonetheless found over 36 similar characteristics between the R3 print found in the store and the print of the defendant. He found no dissimilarities.

[49] Under cross-examination, the officer agreed that he could not state when the print was made in the store. He considered that as it was wet and glistening, it was a recent print.

[50] It is not disputed that the defendant, who was 18 at the time of these events, is black and is more than six feet tall, fits the general description of the robber. As in R. v. Foster, 2008 8419 (ONSC), at para. 40, the only significance of this is that Mr. Edwards cannot be excluded as a suspect: “these descriptors might be described as “generic” with no detail that could distinguish the assailant from thousands of other people”: R v. Ellis, 2008 ONCA 77, [2008] O.J. No 361 (C.A.), at para. 5, 8.”

Similar Fact Application

[51] At the close of the Crown’s case the Crown brought an application to have the evidence among counts on the indictment used as similar fact evidence on the issue of identity based on a high degree of similarity between the two acts.

[52] The Crown compared the two events and noted both occurred on weekdays and at midday at the same location, Mirani Jewellery. One both occasions only the owner was working in the store, sitting in his chair behind the counter. An accomplice carried a duffle bag in the first instance and the intruder carried a duffle bag in the subsequent event.

[53] The intruder vaulted the cabinets to the left of the store in the same location as he entered each time. In both cases he stole only gold chains or necklaces and placed them on his left arm. The items were taken from only showcases 4, 5, and 6 in both events. The description of the intruder in both events was tall, male, black and in his 20s. He wore a balaclava or bandana that fell down at times in both cases. He did not speak either time.

[54] The event took place in 20 seconds in both robberies with the intruder exiting by vaulting the cabinets. The intruder exited the mall via the north doors facing Charolais Blvd. and was observed running to the same residential building next to the mall in both cases.

[55] The Crown noted several differences between the events but argued they were not significant. In the first event there were two customers in the store but no one in the second. An accomplice was present and carrying the duffle bag in the first robbery but the intruder was alone and carrying his own duffle in the second. In the first robbery the intruder wore a hoodie, adidas jacket and track pants where as in the second he wore a t-shirt, gray pants and a ball cap.

[56] In the first event there was no contact with the owner but in second there was contact, initiated by the owner, when he stepped into the path of the intruder. When the intruder vaulted the cabinets in the first event he left via the right side of the store but in the second event he left via the left side.

THE LAW

[57] Similar fact evidence is presumptively inadmissible. In R. v Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para 55., the Supreme Court of Canada directs that:

The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[58] A similar fact application seeks to allow the trier of fact to “infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable.” R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339 para 43.

[59] The Supreme Court of Canada advised a principled approach to the use of similar fact evidence on the issue of identity:

Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence is produced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar" and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed--that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted to prove the commission of another act (or count). [R v. Arp paragraph 45 ibid.]

[60] The Ontario Court of Appeal in R. v MacCormack, 2009 ONCA 72, [2009] 245 O.A.C. 271, at paras 52 and 53, directs how to proceed on an admissibility inquiry of similar facts,

The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para 21. This phase of the inquiry into admissibility may be characterized as the “similarity” issue.

[61] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

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. Handy at para 82; Perrier at para 22.

THE POSITION OF THE PARTIES

[62] It was the Crown’s position that the court should admit the similar fact evidence in the circumstances of the very similar events. The Crown seeks to have the court accept the evidence of Constable Hofstetter that the fingerprints analysed are those of the defendant and that the prints are those of the intruder on July 22, 2013. They ask the court to link the similar fact evidence to the defendant by virtue of the fingerprint identification.

[63] The defence position was that there were sufficient dissimilarities in the two events that would make it unsafe to find that the same person committed both acts. The defence argued that the fingerprints found did not appear to be the same as the defendants and urged me not to accept the officer’s opinion. He also urged me to find that the prints found did not match the location of the hand positions of the intruder. The defence’s position was that identity was not made out in this case beyond a reasonable doubt, even on the stronger evidence available relating to the second incident.

ANALYSIS

Similar Fact Application

[64] I have reviewed all the evidence, and in particular the video evidence from both incidents, to consider the manner in which two acts were committed.

[65] There are a number of clear similarities: the location was the same; the robberies occurred on weekdays and at midday; when the intruder left the mall by the same exit door and ran to the same residential building; the storeowner was working alone, sitting at his chair behind the counter; the act occurred in 20 seconds only; the items taken were only gold chains and only from showcases 4,5 and 6; the chains were strung on the intruder’s left arm; the intruder wore a bandana or face covering that fell down; the intruder did not speak, a duffle bag was available.

[66] The general description of the intruder in both events was a tall, black male in his 20s.

[67] A distinctive feature unifying the two incidents was the smooth physical leap that the intruder makes over the counters both on his way in and out of the store that is properly described as a trademark or signature. A comparison of frames 11:28:58 /11:28:59 on the video stills of June 19, 2013 with the two frames at 12:57:14/12:57:14 on the video stills of July 22, 2013 give the clearest evidence of the distinct similarity.

[68] I consider the dissimilarities in the two events. In the first event there were two customers in the store when the act occurred and none at the second event. As well, in the first event the intruder had an accomplice. The clothing worn by the intruder was different.

[69] On review, I cannot find that the dissimilarities distinguish the events and make it appear that the events were by a different person. The customers that were present in the first event were located to the far right of the store leaving a large area for the intruder’s entryway. Although there was an accomplice in the first event he was not involved in the robbery apart from carrying a duffle bag and running with the intruder to the exit doors. The clothing was similar in respect of the face covering but would be lighter clothes in the hot July weather that was described.

[70] I find a high degree of similarity between the two acts and conclude on a balance of probabilities that the same person committed both acts. The evidence will therefore be admitted on all counts.

Analysis of the Fingerprint evidence

[71] On review of the officer’s evidence, and the line-by-line comparison of the prints, I find that the prints found at the jewellers on July 22, 2013 are those of the defendant.

[72] The defence urged me to find that that the prints were in a different location, further toward the centre of the cabinet, than the placement of the intruders’ hands in the video still. However, I agree with the Crown that the angle of perspective is different in both photographs and does not allow such a comparison. The placement is not so obviously different as to exclude them being made by the intruder’s hands.

[73] The sliding of the left hand prints in an east west direction matches the movement of the intruder in the video. The northwest orientation of the right hand print is consistent with the orientation of the intruder’s right hand in the video.

[74] The evidence that the prints were wet and glistening when the officer arrived early that afternoon supports that they were made by the intruder that day.

[75] As I accept that the prints were made by the intruder that day and that the prints belonged to the defendant, I am satisfied beyond a reasonable doubt that the identity of the intruder on both occasions was the defendant.

[76] Evidence of this nature (fingerprints at scene of robbery) was similarly accepted as proof of identity in R v Sykes, 2014 NSCA 57, paras 45-49.

Offence Committed

[77] The Crown addressed the issue as to whether this was properly an offence of theft rather than of robbery. Section 343(a) has the element of “threats of violence”. I note that similar to the facts in R. v. MacCormack, para 85 and 86, the threat of violence can be implied from all the circumstances. Threats do not have to be verbal.

[78] On these facts, the very tall masked intruder leapt into the confined clerk space and rapidly gathered merchandise. From the video it is apparent that he is much taller and younger than the storeowner. Mr. Karakulak testified that he was frightened and that he was recovering from back surgery. The incidents have given him a continued fear of any passers-by that walk quickly near his store. He stated that he finds even the daily mall-walkers startle him.

[79] On my review of the video, I find Mr. Karakulak’s testimony that he was frightened to be reasonably founded in the circumstances. Although the intruder did not speak, I find that his conduct would objectively instil fear. I find that the threat of violence was implied such that this is properly found to be a crime of robbery.

CONCLUSION

[80] The similar fact evidence between counts is ruled admissible.

[81] The same person committed the robberies of June 19, 2013 and July 22, 2013.

[82] The similar fact evidence is linked to the defendant by virtue of his fingerprints being located in the same location, position, and orientation as the intruder in the video, as he vaulted the cabinets.

[83] Accordingly, I find the defendant guilty of all four counts.

M.J. Donohue, J

Released: June 19, 2014