COURT FILE NO.: CR/14/40000/3970000
DATE: 20141201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENSAH and
BRIAN PICH
Paul Leishman, for the Crown
Joshua Frost, for Brian Mensah
Hans Cedro, for Brian Pich
HEARD: June 3, 4, 6, 9, 10, 11, 12, 13, 17, 18, 23, 24, 25, 26, 27 September 2, 3, 5, October 6, November 18, 21 and December 1, 2014
M. Forestell J.
REASONS FOR JUDGMENT
I History of the Case
[1] Brian Pich and Brian Mensah, were jointly charged with Aman Ali and Javon Edwards on an indictment charging them with four counts of robbery, one count of using an imitation firearm in the commission of the offence of robbery, one count of having their faces masked in the commission of an indictable offence, one count of unlawful confinement and one count of assault with a weapon. The charges arose out of the robbery of the staff and customers at the Lobster Trap restaurant in Toronto.
[2] On June 3, 2014, the trial on these charges commenced with a blended voir dire into the admissibility of statements made by Mr. Mensah, Mr. Pich and Mr.Ali. The parties called evidence over several days. Before making submissions on behalf of Mr. Ali, counsel for Mr. Ali and for the Crown advised that a ruling would not be necessary with respect to Mr. Ali’s statement. Mr. Ali then entered a plea of guilty to offences related to the robbery and was sentenced.
[3] On June 17, 2014, I excluded the statements of Mr. Pich and Mr. Mensah. The trial of Mr. Mensah, Mr. Pich and Mr. Edwards then proceeded before me over several days in June, September and October. The evidence was completed on October 6, 2014 except for possible reply evidence in relation to Mr. Edwards. The case was adjourned to November 18, 2014 for reply evidence and submissions. On November 18, 2014 counsel for Mr. Edwards was unable to continue to represent Mr. Edwards because he had been suspended by The Law Society. With the consent of all parties I heard submissions with respect to Mr. Mensah and Mr. Pich on November 21, 2014.
[4] I reserved my decision with respect to Mr. Pich and Mr. Mensah to December 1, 2014 and adjourned Mr. Edwards’ case to the same date to hear submissions on whether his charges should be severed from the indictment and dealt with after he has had an opportunity to retain and instruct new counsel. Mr. Edwards had consulted with three lawyers before agreeing to this procedure.
[5] Today, December 1, 2014, Mr. Edwards attended and advised that he had retained counsel in Mr. Cohen. Mr. Cohen was unable to attend court today, but spoke with the Crown and advised that Mr. Edwards consented to being severed from the other two accused. Mr. Edwards confirmed this. As a result, I ordered that Mr. Edwards be severed from the indictment.
[6] On November 26, 2014 I notified counsel for the Crown, Mr. Mensah and Mr, Pich that I would provide them with an opportunity to make further submissions on the significance of a small portion of the surveillance video that was entered as an exhibit. As I will discuss below, upon a close review of the video I am of the view that Mr. Pich can be seen on the video to be handing an item or items to Mr. Ali. I heard further submissions on the significance of this portion of the video today and adjourned for half an hour to consider those submissions.
[7] I will now render my decision in relation to Mr. Mensah and Mr. Pich. I will begin with an overview of the case and the positions of the parties. I will then summarize the evidence, my findings of fact and the applicable legal principles before turning to my conclusions and reasons with respect to each accused person.
II Overview of the Facts
[8] The robbery of The Lobster Trap restaurant occurred on January 25, 2012. A number of men entered the restaurant just before 10:00 p.m., wearing bandanas over their faces. At least two of the men had guns and at least one or two had knives. The men removed cash and liquor from the restaurant. They also took money, cellphones and other personal belongings from the staff and patrons.
[9] About one hour later, police responded to a report that several men were in a vacant apartment not far from The Lobster Trap restaurant. Police arrested the men in the vacant apartment for being unlawfully in a dwelling-house. The police located property in the apartment that had been stolen in the robbery. Video surveillance shows five of the men later arrested in the apartment arriving together at the apartment building just under one hour after the robbery was complete. The video shows three of these men carrying liquor bottles consistent with those taken from the restaurant. Three liquor bottles were found in the vacant apartment. Mr. Mensah and Mr. Pich are admitted to be two of the men on the video. The other three are Mr. Edwards, Mr. Ali and Awale Dirie. Mr. Ali and Mr. Dirie have pleaded guilty to offences related to the robbery of the Lobster Trap Restaurant.
III The Issues and the Positions of the Parties
[10] There is no question that all of the offences set out in the indictment occurred. The issue in this case is whether the accused committed those offences. The identity of the individuals who committed the robbery is the issue.
[11] It is not suggested by the Crown that the descriptions given by the victims of the robbery could in themselves support convictions of either accused. The Crown relies on the general description of the perpetrators of the robbery as part of the totality of circumstantial evidence that the Crown submits is consistent with the inference that both of the accused participated in the robbery. The Crown submits that the evidence, viewed as a whole, is not consistent with any other reasonable inference.
[12] The submission of counsel for Mr. Mensah is that the descriptions by the witnesses are clearly insufficient to satisfy the burden of proof. Counsel for Mr. Mensah submits that the circumstantial evidence as a whole is easily consistent with other reasonable inferences, including the inference that Mr. Mensah met the others sometime between the robbery and the entry to the apartment building.
[13] Counsel for Mr. Pich submits that the descriptions given by the victims of the robbery, with the exception of one witness, were that all of the robbers were black. Mr. Pich is white. The descriptions therefore exclude Mr. Pich. Counsel for Mr. Pich submits that the two knives and the green bandana found in the car of Mr. Pich are not necessarily connected to the robbery. Mr. Pich was found in possession of a hidden 100 Yuan note upon arrest. Yuan notes were stolen from one of the victims. Counsel for Mr. Pich submits that this evidence is equally consistent with the inference that Mr. Pich received the money later at the apartment. Mr. Pich is a former employee of the restaurant and was familiar with the layout. The robbers entered through an unlocked back door and asked for access to a safe that was not easily visible. Counsel submits that this evidence does not lead only to the inference that Mr. Pich was involved in the robbery.
IV Evidence
1. Events at the Lobster Trap Restaurant
(i) Approach to the Evidence of the Victims of the Robbery
[14] There were ten witnesses who were present in the restaurant when it was robbed. Their versions of events differ in some respects; their versions of the events have not always been consistent in every detail. Nordheimer J. recently made the following observations in a case involving the eyewitness testimony of several civilians:
None of the witnesses are one hundred percent clear in their recollections of what they saw nor are their recollections entirely consistent from one witness to the next. No one should be surprised at either of those realities. No one remembers every detail of what they observe. No one sees an event in exactly the same way as another observer of that same event. No one remembers the very same things as others do. All of that is simply human nature.
Further, there were some variations in what some of the witnesses said that they saw between the different times in which they have been called upon to give their evidence. In most cases, these witnesses have been required to recite these events at least three times: first to the police; then at the preliminary hearing; and finally at this trial. Those renditions have occurred over a period of about three and one-half years ‑ a passage of time that brings its own problems to the quality of the evidence in this case. Delay does not enhance the quality of any witness' evidence.
Those are realities that occur in most criminal cases. They are at least part of the reason why any trier of fact, whether judge or jury, is permitted to accept some, none or all of any witness' evidence. Put simply, a witness' evidence does not have to be taken on an all or nothing basis.”[1][^1]
[15] Those observations apply equally to the ten witnesses in this case who have told their accounts three times over a year and a half.
[16] In R. v. Miapanoose,[^2] Charron J.A. quoted the Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures" at page 10, where the Commission explained the psychological and physiological factors that can affect the testimony of an eyewitness:
Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.
[17] With those principles in mind I will review the evidence of each of the victims of the robbery.
(ii) Evidence of the Staff
Joe Marie Pineda
[18] Mr. Pineda was the dishwasher at the restaurant. On January 25, 2012, just before the robbery, he was washing dishes. The robbers came in through the unlocked back door into the kitchen area. The back door was generally unlocked. The men who entered said, "We have guns. Come with us in front." Mr. Pineda did not see the faces of the men because all of their faces were covered and they had hoods. Mr. Pineda remembered all of the robbers wearing black clothing. All of the robbers appeared to be young black men. However, Mr. Pineda did not see all of the men well.
[19] He testified that there was only one that he saw well. That man was black, almost 6' tall; 20 years-old or younger with a thin build. He had a baseball cap which was black with a hood over it which was also black. The man had a black scarf covering his face; he had a black jacket with a hood and black pants. The man had a black 9mm pistol in his right hand.
[20] Mr. Pineda saw two of the men with guns and one with a knife.
[21] Mr. Pineda testified the second man who he saw with a gun was also a black male. He was shorter: 5'8" or less; had a black hood, black scarf and black pants.
[22] The men went into the restaurant with Mr. Pineda. Mr. Pineda could only say that there were some robbers ahead of him and there was one robber behind him when they went into the dining room. When they got into the front part or dining area of the restaurant, one of the men stayed with Mr. Pineda while the others went into the two sides of the restaurant. He didn't see any part of the robbery because he bowed his head and prayed.
[23] He heard talk about opening the safe.
[24] Mr. Pineda was a credible witness who was careful in giving his evidence. He had only a limited opportunity to observe the participants in the robbery because he put his head down and did not look at the men and because of the stress of the situation.
Emma Whitaker
[25] Emma Whitaker was one of the two waitresses in the restaurant the night of the robbery. At the time of the robbery there were only two tables of patrons. The two tables were in separate sections of the restaurant. Both tables were finishing their meals and had paid. One table, in the first dining room, was occupied by patrons who were celebrating a birthday. (Daniel Poon, Cynthia Ma, Wing Ting (Corey) Chiu, Wan Ting (Yokey) Zhou, Carol Wah). The other table, in the second dining room, was occupied by some patrons who had recently arrived from China (Tao Selena Wang, Shaoquing (Grace) Lei and Wu Hoa).
[26] The cash area was near the front of the restaurant and on the same side as the first dining room. The back entrance and the kitchen also opened in to the first dining room. Towards the back and also off the first dining room was an area where there was a safe, a refrigerator and a bar area.
[27] Ms. Whitaker testified that a man with a gun came up to her and Tatianna (Tanya) Bocher, the other waitress, while they were cashing out in the cash area near the front of the restaurant. Ms. Whitaker tried to call 911, but the man took the phone and said, "Don't try that police shit." Ms. Whitaker then noticed that one of the men had Joe Pineda, the dishwasher.
[28] The men were at the tables demanding phones and wallets. The man with the gun went to the safe. He pointed to the safe and said, "Open the safe. Open the safe." Ms. Whitaker went towards the table of patrons in the first dining room. One of the men standing near the table reached into her waitress pouch and asked what other money she had.
[29] At about the same time, Tanya, the other waitress, was trying to tell the person at the safe that they didn't know the combination. Ms. Whitaker walked over and also said that they didn't know the combination and couldn't open the safe. She suggested taking the liquor. The tall person, who also had a backpack, was facing her and the other person who had been over at the table in the second dining room put the liquor into the back pack. The men left through the back. Ms. Whitaker called 911.
[30] Ms. Whitaker testified that during the robbery there were two men at the table in the first dining room, one at the safe and two at the table in the second dining room. Of the five, she only saw one with a gun. She saw one man with a knife briefly and had very little interaction with him. The knife was a basic serrated edge steak knife with a stainless steel blade, about 7 inches long.
[31] Ms. Whitaker described the men involved in the robbery as follows:
The first man who approached her at the cash was a very large man, very muscular and 6'1" or 6'2" tall. He had a hoodie with no zipper. He had a bandana covering his face; he had a gun in his left hand. He had very dark skin.
The second person was at the table in the first dining room. (This is the man who reached into the pouch.) He was 5'8" or 5'9" tall. He was wearing a black, furry hunter's cap. It was black and grey with fur. He had a red bandana and a black hoodie.
The third person she saw was furthest from her. He had a dark hoodie, tied up; a dark bandana; knit gloves; a knife in his hand and dark skin.
One man near the table in the second dining room was tall and lanky - 6'1" or 6'2"; he had a dark bandana; he had a hoodie done up; he had dark skin, but not as dark as the two near the birthday table. The hoodie was black and he had dark running shoes.
The other man near the table in the second dining room had a steak knife with a serrated edge.
[32] Ms. Whitaker saw only one person with a gun. That was the person making all of the basic demands and who went to the safe with Tanya, the other waitress.
[33] Ms. Whitaker placed the 911 call at 9:54 p.m. after the robbers had left.
[34] Ms. Whitaker confirmed that Brian Pich had worked at the restaurant for a number of years and was known to her. She testified that the existence and location of the safe were known to the employees of the restaurant, but that the safe was not visible to patrons.
[35] Ms. Whitaker was a credible witness who appeared to be trying to be truthful. She had a good opportunity to observe all of the participants in the robbery because she was located at the cash and then near the safe. Her description of the participants with whom she interacted was fairly detailed and reliable. Her ability to see the three participants who were in the second dining room was limited and less reliable.
Tatiana (Tanya) Bocher
[36] Ms. Bocher testified that when the robbery began, Ms. Bocher and Ms. Whitaker were at the cash register figuring out the tips to divide for the evening. One of the robbers came up to them and said, "It's a robbery." He demanded the cash from the register. He took the money from the register and then took the money from the table. He then told them to show him where the safe was. The man had a bandana over his face. All she could see were brown eyes. She couldn't remember the colour of the bandana. It was either a dark colour or white with red. The bandana covered his nose. His eyes were showing. He had a gun in his hand but she was not sure that it was a real gun.
[37] Another man who came to stand next to her when she was by the safe said, "Open the safe. Open the safe." She told the man that she could not open the safe. Eventually the men took liquor bottles. One of them asked her to open the refrigerator with her key. She unlocked the refrigerator and she believed that some wine was taken.
[38] Ms. Bocher saw three robbers in the first dining room. Two were beside the table and one was in the middle, beside her, telling her to open the safe.
[39] Ms. Bocher saw two men in the second dining room. She described the two in the second dining room. One man was taller than she is. She thought he had a green bandana. He had a dark green jacket with no hood. His face was covered. She just saw brown eyes and brown skin.
[40] Ms. Bocher was fairly sure that she saw five men: two in each dining room and the one individual who approached the two waitresses at the cash register and then took her to find the safe. She saw a gun in the hand of the man who first approached her and may have seen another gun.
[41] When the men left, Ms. Bocher counted them and counted five men.
[42] Ms. Bocher agreed in cross-examination that the robbery went fast and was confusing. She was not sure about colours of clothes except that they were dark clothes. One or two men had hoods on their heads. She did not see hair at all. The bandanas were dark in colour. There were no bandanas that were light in colour.
[43] Ms. Bocher confirmed that Mr. Pich had previously worked for the restaurant for three to four years.
[44] Ms. Bocher was clearly very anxious when she gave her evidence. She was a credible witness but like some of the other witnesses, she had only a limited opportunity to observe the participants in the robbery. Her evidence as to the sequence of events and the number of participants was reliable. She was positioned in a way that she was able to count the men as they left the restaurant.
(iii) Evidence of the Patrons
First Dining Room –- Daniel Poon, Cynthia Ma, Wing Ting (Corey) Chiu, Wan Ting (Yokey) Zhou, Carol Wah
Daniel Poon
[45] Daniel Poon had been at the table with Cynthia Ma, Wing Ting (Corey) Chiu, Wan Ting (Yokey) Zhou, Carol Wah and a man named Peter. Mr. Poon testified that he walked out of the restaurant with Peter between 9:00 and 9:30 p.m. Peter left, but Mr. Poon went back inside the restaurant between 9:35 and 9:40 p.m. The robbery of the restaurant was already in progress when he returned inside the restaurant.
[46] There was a man with the waitresses at the cash. The man was described by Mr. Poon as wearing a parka or winter jacket. He had a hood on the jacket with fur. He wore dark pants and dark winter boots. He was 6' or 6'1". He was skinny and had a red bandana over his face and dark skin. The man had a gun in his right hand. He pulled Mr. Poon with his left hand over to a table, patted him down and asked for his phone.
[47] Mr. Poon saw another man as well. The second man was described by Mr. Poon as being much taller than the first. He had a bandana over his face. Mr. Poon didn't remember the colour of it. The man was wearing a jacket which was not as puffy as the other one. He wore a large duck-billed hat. He had a dark complexion. He wore baggy jeans. He wore winter boots which were ankle high and black or some other dark colour. He had a gun in his right hand.
[48] Mr. Poon heard a third man in a different part of the restaurant but could not describe his appearance. The man spoke ‘street slang’.
[49] Mr. Poon’s evidence was credible and reliable with respect to the two men that he was able to observe.
Wang Ting (Corey) Chiu
[50] Ms. Chiu testified that after her meal at the restaurant that night she had been looking at her phone and when she looked up and put her phone on the table, she saw a man with a gun in his right hand pushing the dishwasher into the restaurant from the kitchen. The man pointed the gun at her and at her friends and told them to put their phones on the table. He then grabbed the phones. He was 5'8" or 5'9" tall. He had a navy blue hoodie with a white stripe on the rim of the hoodie around his face. His face was covered with a bandana. The gun was black and small ‑ about the size of his hand.
[51] Ms. Chiu testified that three or four men came in after the first man with the gun. Aside from the man with the gun, she only remembered two others. They all had bandanas covering their faces. One bandana was yellow; she couldn't remember the colour of the bandana on the face of the man with the gun.
[52] In terms of her description of the two men other than the man with the gun, Ms. Chiu testified that one had dark brown skin and one was white. She saw two men on the side of the restaurant where she was seated with her friends and three on the other side of the restaurant. The only face that she observed was the face of the "white guy", whose yellow bandana fell down. Ms. Chiu testified that he was gesturing and asking for the key to the safe. He was very nervous and seemed angry. The bandana fell down when he was gesturing. He searched the pockets of the blonde waitress after the bandana had fallen down. It remained down when he searched the waitress. The left side of his face was exposed.
[53] Ms. Chiu was 4-1/2 or 5 feet away from the waitress and the white man while this occurred.
[54] Ms. Chiu had seen the white guy with the yellow bandana on the other side of the restaurant before his encounter with the waitresses and before the bandana fell down.
[55] Ms. Chiu remembered three of the men having guns, but couldn't remember who had them.
[56] In cross-examination, Ms. Chiu said that the bandana fell when the white person was dealing with the waitress. She could not remember if he pulled it back up or, if it stayed down. She was taken to her preliminary inquiry transcript where she said that the light-skinned robber was talking to the dark-haired waitress when the bandana fell down. She adopted that answer, saying it had been two years and she couldn't remember everything.
[57] Ms. Chiu was a credible witness. Her evidence had some obvious problems with respect to reliability however. Her description of the man who searched the pouch of the waitress was completely different from the description of Ms. Whitaker. Ms. Whitaker described a black man with a black and grey furry hunter’s cap and Ms. Chiu described a white man with a yellow bandana that may have slipped down. Ms. Chiu’s evidence was not consistent in describing the events that occurred when the bandana slipped down. Ms. Chiu’s evidence, while credible, was not reliable with respect to the description of the white man.
Cynthia Ma
[58] Ms. Ma testified that a man with a gun ran up to her saying, "stand up" and "hands up" and, "Take out your cell phone and wallet." There was another person with a knife who was next to the man with the gun.
[59] Ms. Ma's description of the man with the gun was that he was around 6' tall; he had dark skin. All of the men were covered by hoodies and bandanas. One wore jeans. The bandana on the man with the gun was white and red. The hoodie on the man with the gun was grey. The gun was small ‑ 6 to 7 inches long. He was holding it in his right hand. The gun was pointed at the people in the restaurant.
[60] The person with the knife was the same height or possibly a little shorter. He also had on a hoodie. Ms. Ma couldn't remember the colour of the hoodie. She couldn't remember the colour of the bandana over his face. He was holding a knife with a red handle and wore dark coloured jeans. The knife was about 5 inches long: the blade was about 3 inches long and the handle, about 2-1/2 inches long.
[61] The man with the gun ran back and forth in the restaurant. He was asking someone to open the safe. The manager was saying that she didn't have the combination or the key to open it.
[62] Ms. Ma saw at least two guns. She heard four to five people talking. She heard the man with the gun asking the waitress to open the safe. She also heard other voices ‑ at least two men ‑ saying, "Hurry up. Come on. Open the safe." She was fairly sure they were different voices.
[63] Ms. Ma saw the man with the gun and the man with the knife yelling at the waitress to open the safe. They spoke to both waitresses. First, the dark-haired waitress was in the area with the safe. Then, the witness saw the blond waitress near the safe area. The waitresses did not come near their table during the robbery. The blond waitress was three to four tables away from their table. The dark-haired waitress was always 20 feet away.
[64] Ms. Ma was also a credible witness. Her evidence concerning the events that occurred was reliable, but she had a limited opportunity to make reliable observations of the participants in the robbery.
Wan Ting (Yokey) Zhou
[65] Ms. Zhou was using her cellphone when suddenly a man with a gun took it away. The person had on a hoodie and a covering over his face; he was a bit tall with dark skin. He spoke loudly and asked everyone to hand over their cell phones. He said they would not hurt anyone. Ms. Zhou's handbag was at her back and it was open. The man took her Louis Vuitton wallet and her cosmetic bag. She saw the man take Ms. Chiu's cell phone.
[66] Ms. Zhou saw three men on their side of the restaurant. On the other side she saw about two or three people, but she could not be sure of the number. Things were chaotic and the men were walking back and forth. She heard one of the robbers speaking to a waitress, asking her open the safe. The man said, "Give me the key to the safe" or something like that. The waitress replied that she didn't have the key.
[67] Ms. Zhou said that the person who took her cell phone had his face covered and she could only see his eyes and the top of his nose to above his eyebrows. He also had a hood covering the top part of his face. The covering was dark brown or almost black. She couldn't remember the colour of the hoodie. He was wearing gloves, but she did not remember the colour. He had dark brown skin.
[68] The other man on Ms. Zhou's side of the restaurant was tall and thin. He had dark brown skin. His face was also covered and he also had a hoodie covering part of his face. He was wearing dark clothing, but she could not remember the colour of the hoodie. She did not see whether that person was carrying anything.
[69] Ms. Zhou noticed that one of the men on the other side of the restaurant had a gun, but she was not sure what the men on the other side looked like. The man on the other side of the restaurant who was carrying a gun also had something covering his face. She couldn't remember the colour of the covering. Neither of the men with guns was pointing them at anyone.
[70] Ms. Zhou later got her cell phone and her wallet back. The waitress found her wallet and her cosmetic bag near the lobster tank in the restaurant. Nothing was taken from them.
[71] Ms. Zhou testified that, in total, she saw five robbers: three were on her side of the restaurant and two were on the other side. She also testified that she was scared and it was chaotic and they were in a hurry. She got the best look at the robber who took her cell phone. Of the remaining four, the next best look that she got was at the other man who was tall and skinny and who was on her side of the restaurant.
[72] Ms. Zhou believed that there were two waitresses and a manager working that night and she did not see any of the waitresses or the manager come near her table during the robbery. She did not see a mask fall off the face of the robber who was demanding a key to the safe, but she said that his back was to her.
[73] Ms. Zhou was also a credible witness, but she had a limited opportunity to make reliable observations of the people robbing the restaurant. She was mistaken about the presence of a manager in addition to the two waitresses.
Carol Wah
[74] Ms. Wah noticed someone walking through the kitchen back door saying, "Everyone put your hands up. Put your phones down." Ms. Wah stood up and put her hands up. She was facing the kitchen. She saw people walking into the restaurant with bandanas on their faces. One of the robbers came to their table and took Ms. Chiu's phone and Ms. Zhou's phone. Ms. Wah saw a handgun near the hip of one of the robbers in his hand. She did not remember seeing him point it at anyone. Daniel Poon came back in from outside. One of the robbers went to him and asked for his phone.
[75] One of the robbers asked the staff for the key to the safe and for cash, then the robbers were saying, "Let's go. Let's go."
[76] Ms. Wah saw three men and heard others asking for money. Ms. Wah was in one dining room and the men she couldn't see were in the other part of the restaurant, in the other dining room. The robbers were walking around and going back and forth.
[77] Ms. Wah described the three men that she saw as all being black males. One had a red bandana. She did not know if he carried a gun. The bandana was below his eyes, in the cheekbone area. One person had a white bandana. The person with the white bandana asked them to stay under the table, but it was too crowded, so they stood. One person had grey shorts or underpants.
[78] Ms. Wah was a credible witness, but had a limited opportunity to make reliable observations of the participants.
Second Dining Room ‑ Tao Selena Wang, Shaoquing (Grace) Lei
Tao Selena Wang
[79] Ms. Wang was at the Lobster Trap restaurant on January 25, 2012 with two friends: Wu Hao and Grace Lei. There was one other table of customers in the restaurant, but they were on the other side of the restaurant in the other dining room.
[80] Ms. Wang became aware of the robbery when a man came to their table with a knife in his hand. He pointed the knife at Wu Hao. The face of the man was covered. Next, another man ran over and took all of the cell phones at the table. Three of the men ended up coming to their table. Ms. Wang described them as follows:
• All three men had their faces covered.
• The first man who came over, pointing the knife, had a light grey hoodie. The covering of the man's face was black with a pattern. The man was about 178 cm tall. The knife had a silver blade.
• The second man had a black hoodie. He had black skin. He was around 180 cm tall. He had a medium build - not fat and not skinny. He weighed about 170 pounds.
• The person standing behind Ms. Wang was holding a gun. She remembered he was wearing a dark-coloured hoodie, but she didn't know the colour. He had dark skin. He was roughly 180 to 182 cm tall. His face was covered with a black cloth.
• The coverings on the faces of the robbers were square head scarves with patterns. They were pretty typical scarves that you could buy anywhere, including on the street.
[81] The man with the knife stood behind Wu Hao, the one with the black hoodie stood to the left side of Ms. Lei and the one with the gun stood behind Ms. Wang.
[82] The man who was beside Ms. Lei took Ms. Lei's purse and her keys. He was demanding the phones as well. The man standing near Wu Hao used a knife to point it at Mr. Hao's neck. He made Mr. Hao stand up and the robber beside him patted Mr. Hao’s pockets. Both before and after this occurred the robber with the gun directed them to look down at the table.
[83] After the robbery Ms. Wang noticed that Mr. Hao’s neck was slightly injured.
[84] Ms. Wang described the gun which she said looked like it was "not a revolver"; she said it was black and it had a matte finish. At the time, she did not believe it was a real gun, but she had never seen a real gun.
[85] Ms. Wang heard the men asking for the combination or key to the safe. She heard the waitresses trying to tell the men to leave.
[86] Ms. Wang testified that the scene was quite chaotic during the robbery.
[87] Ms. Wang identified the telephone that was taken from her and that she recovered from the police.
[88] I found Ms. Wang to be credible and her evidence of the events was reliable, but she had a limited opportunity to make reliable observations of the participants.
Shaoquing (Grace) Lei
[89] Ms. Lei lived in Toronto in 2012; Wu Hao lived in China and was in Toronto to visit her.
[90] The first thing that Ms. Lei saw during the robbery was a man coming with a knife in his hand. His face was covered with a red scarf. That person stood beside Grace and another person came and stood behind Ms. Wang. The second person had a gun. The man with the gun was pointing the gun at Ms. Wang, saying, "Take out your cell." The person behind Ms. Lei told them to empty their pockets. She does not think she saw a third person, but she heard other people. Wu Hao took out his cell phone and wallet and put them on the table. Ms. Lei told the person behind her that her cell phone was in her handbag which was behind her. She could not see, but she felt that he took out her purse. At the same time, the person with the knife had the knife at the neck of Wu Hao. Wu Hao tried to stand and the person did not want him to. The person said not to look around and to look at the table.
[91] Ms. Lei’s wallet and cell phone were taken. Her wallet was a black Prada wallet and in it was U.S. money, Canadian money, identification and Chinese money or, "Yuan". Her phone was an iPhone in a bright pink case.
[92] She described the person with the knife as a black man of medium build. His face was covered with a black scarf with a white pattern. He wore dark clothing, including a dark jacket with the hood up and dark pants. The knife was like a table knife with a silver blade and a blue handle.
[93] She described the person with the gun as a black man, carrying a black gun. He was 5'8" tall; skinny; he looked young around 20; he was wearing a black hoodie, so she couldn't see his hair; he had dark blue or black jeans; a red scarf covered his face; he wore black fleece gloves. She said there was a third black man. The third man was running around, yelling.
[94] Ms. Lei was a credible witness, but she had only a limited opportunity to make observations.
(iv) Findings of Fact with Respect to the Events at the Lobster Trap Restaurant
[95] All of the witnesses from the restaurant were credible in that they were doing their best to tell the truth and to recount as accurately as possible their observations of the robbery. There are, however, obvious reliability concerns with respect to the evidence of the staff and patrons of the restaurant.
[96] The robbery happened very quickly. The layout of the restaurant was such that no occupant had a clear view of all of the robbers all of the time. The men were moving from one part of the restaurant to another throughout the robbery. All of the men had their faces covered. The patrons of the restaurant were instructed to look down. The event was a stressful one for all of the witnesses.
[97] The only findings of fact that I can make from the evidence of the victims are the following:
• Five men entered the restaurant and stole the items described by the victims. I rely on the evidence of Ms. Bocher and Ms. Whitaker to reach this conclusion. They were in the best position to observe the restaurant as a whole. Ms. Bocher counted the men as they left. While some others in the restaurant were only able to see 2 to 4 men, these witnesses were not positioned to see the whole restaurant.
• All of the men who entered had their faces covered and all of the men wore dark clothing. This was the evidence of all of the occupants of the restaurant.
• One bandana was green. I find the evidence of Ms. Bocher to be credible and reliable on this point. She was not certain of the colour of every bandana, but recalled the green colour of the one bandana.
• One or more of the men asked Ms. Bocher to open the safe and one man asked her to open the refrigerator with her key. Ms. Bocher was the witness who was directly involved with the demands to open the safe and the demand to open the refrigerator. Her evidence on this sequence of events is supported by the evidence of Ms. Whitaker who came over to the safe area to assist Ms. Bocher. It is also supported by the evidence of the patrons who heard demands to open the safe and demands for a key.
• Two of the men had what appeared to be guns. This finding is based on the evidence of Mr. Pineda, Ms. Ma and Ms. Zhou.
• One man had a knife and held it to the neck of Wu Hao, causing a small cut. While there was some evidence of another knife also being wielded, I cannot find as a fact that there was more than one knife because of the confusion within the restaurant and the movement of the men who were robbing the restaurant.
• Four of the men had dark skin. The skin colour of the fifth man is not known. I do not find the evidence of Ms. Chiu that one of the men was white to be reliable. However, none of the patrons and staff saw every participant well. Ms. Whitaker had the best opportunity to see the participants and saw four black men. She did not see the fifth person well enough to describe him.
2. Events at 11 Flemington
[98] There is little dispute about the events at 11 Flemington that led to the arrest of Mr. Mensah and Mr. Pich. There was an Agreed Statement of Fact entered as Exhibit 34 at trial. It sets out a list of 30 items which are agreed. The Agreed Statement of Fact is attached as Appendix “A” to these reasons.
[99] The surveillance video from 11 Flemington (Exhibit 16) shows the arrival of Mr. Mensah and Mr. Pich with Awale Dirie, Aman Ali and Javon Edwards at 10:50 p.m. The 911 call from the restaurant was placed at 9:54 p.m. It takes about 6 to 7 minutes to drive from The Lobster Trap restaurant to 11 Flemington.
[100] Mr. Dirie and Mr. Ali have entered guilty pleas and admitted their involvement in the robbery.
[101] Mr. Mensah, Mr. Pich, Mr. Dirie, Mr. Ali and Mr. Edwards were arrested shortly after 11:00 p.m. in an apartment with 5 other men.[^3] Property stolen in the robbery was located in the apartment.
[102] I will briefly set out the relevant aspects of the surveillance video and the location of the stolen property recovered from the apartment as well as the location and appearance of the five men arrested for the robbery, including Mr. Mensah and Mr. Pich.
[103] Exhibit 16, the surveillance video from 11 Flemington recorded on January 25, 2012, shows five men: Awale Dirie, Brian Mensah, Javon Edwards, Brian Pich and Aman Ali approaching and then entering the building at 10:50:33 pm. Mr. Dirie, who is wearing a black back pack uses a key to open the door and enter. He is followed by Mr. Edwards who is carrying a bottle and talking on his phone. Mr. Edwards is followed by Mr. Mensah who is drinking from a bottle. Mr. Dirie and Mr. Mensah go upstairs. Mr. Mensah is followed through the door by Mr. Pich and then Mr. Ali. Mr. Ali is also carrying a bottle. Mr. Edwards, Mr. Pich and Mr. Ali go downstairs after entering the building. In the video, as Mr. Mensah, Mr. Pich and Mr. Ali are seen entering the building; Mr. Pich reaches towards Mr. Ali and Mr. Mensah with an object or objects. Mr. Ali takes the item or items handed to him by Mr. Pich and places them in his pocket. At 10:54 p.m. Mr. Mensah and Mr. Ali are shown on the video going downstairs in the same direction as Mr. Pich, Mr. Ali and Mr. Edwards.
[104] P.C. Strilec and P.C. Doyle attended at 11 Flemington, Unit 102 at about 11:05 p.m. on January 25, 2012. They had been flagged down by two Special Constables who had received a complaint about people in an unoccupied unit.
[105] When the two police constables and the special constables first arrived they were unable to get into the unit. They went outside and saw two men leave through the window. The men were both black. Neither was apprehended. The constables gained entry to the unit just after 11:09 p.m. There were a number of men milling around the unit.
[106] P.C. Strilec saw a male he later identified as Javon Edwards leaving the first bedroom and going towards the washroom. P.C. Strilec yelled at him to get out of the washroom. Mr. Edwards left and went back to the first bedroom.
[107] P.C. Doyle instructed all of the men from the bedrooms to move into the living room and sit down. P.C. Strilec stood by with 10 males in the living room while P.C. Doyle checked the bedrooms. P.C. Doyle found Javon Edwards in or near the closet in the first bedroom. The police found three cellphones on the shelf in the closet and they found money scattered on the floor.
[108] Mr. Edwards was arrested and everyone in the living room was also arrested.
[109] Two more cellphones were found in the toilet tank and four in the heaters in the living room.
[110] Mr. Mensah, Mr. Pich, Mr. Ali and Mr. Dirie were among the men arrested in the living room.
[111] Located within the apartment were the following bottles of liquor: a 750 ml. bottle of Grand Marnier (in the entryway to the apartment); a one-quarter full 40 oz. bottle of Bacardi dark rum in the bathroom of the apartment, and a one-quarter full 40 oz. bottle of Smirnoff vodka in the second bedroom of the apartment.
[112] A 750 ml. bottle of Grand Marnier, a 40 oz. bottle of Bacardi Dark rum and a 40 oz. bottle of Smirnoff vodka were among the bottles of liquor taken in the robbery.
[113] The following cellphones were located in the apartment:
• From the top shelf of the closet: a black LG phone, a black iPhone in a pink case and a white iPhone in a black case;
• From the toilet tank: a white iPhone in a clear silicone case and a black Samsung in a clear case; and
• From the heater in the living room: a black BlackBerry Bold, a BlackBerry Bold in a black case, a Samsung and a black iPhone.
[114] The nine phones located in the apartment corresponded with the phones stolen in the robbery.
[115] From the closet in the bedroom of apartment 102 Flemington the police seized $1,625 Cdn, $6 US and $705 Yuan.
[116] From each of the five men charged in the robbery the police seized the following money: from Mr. Ali, $820 Cdn; from Javon Edwards, $110 Cdn; from Awale Dirie, $115 Cdn; from Brian Mensah, $65 and from Brian Pich, $50 Cdn, $1 US and $1,100 Rupees.
[117] In addition to the money noted above, a 100 Yuan note was found by police between the buttocks of Mr. Pich when he was searched following his arrest.
[118] Approximately 1,000 to 2,000 Yuan was stolen from Shaoquing Lei in the robbery. Also taken from Ms. Lei were some US dollars and about $170 Cdn. From Hao Wu the robbers took about $1,200 Cdn. Approximately $750 Cdn in cash was taken from the till of the restaurant.
[119] Mr. Dirie and Mr. Ali both pleaded guilty to offences related to the robbery of The Lobster Trap Restaurant and both admitted their involvement.
[120] Mr. Dirie lived at 11 Flemington in apartment 208. A black knapsack that belonged to Mr. Dirie was found in an abandoned storage locker #204 in 11 Flemington. It contained a black Prada wallet. Two BB guns were found nearby.
[121] Mr. Awale, Mr. Mensah and Mr. Edwards all lived near 11 Flemington. Mr. Pich lived in Mississauga.
[122] The clothing of the five men charged in relation to the robbery at the time of their arrest is set out in the Agreed Statement of Fact. The only somewhat unusual article of clothing was the black and grey checkered hat with ear muffs worn by Mr. Ali.
[123] Mr. Pich’s car was located near 11 Flemington and contained a green bandana on the rear driver’s side floor and two kitchen knives with black handles in the compartment on the passenger side door. The knives did not have serrated blades.
[124] Javon Edwards testified and denied involvement in the robbery. He testified that he encountered the four other men when he was entering the apartment building just before 11:00 p.m. His testimony has no impact on the outcome of the charges against Mr. Mensah and Mr. Pich. Special Constable Tomczyszyn was called as a witness by counsel for Mr. Pich and cross-examined by counsel for Mr. Edwards. His evidence related to the arrest of Mr. Edwards and has no impact on the outcome of the case against Mr. Mensah or Mr. Pich.
[125] With that review of the evidence, I will now set out the legal principles and analysis.
V Legal Principles
Burden of Proof
[126] The burden of proof is on the Crown to prove the guilt of the accused beyond a reasonable doubt. Although tried jointly, each accused is entitled to be considered separately and is entitled to a verdict on each charge based on the evidence relevant to him.
Circumstantial Evidence and Inference
[127] The case against the two accused is entirely circumstantial. Hill J. summarized the approach of a trier of fact to a circumstantial case in R. v. Cunsolo[^4] as follows:
¶234 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. 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. 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 to be drawn from that evidence.
¶235 Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability, 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. [citations omitted]
[128] Watt J. in his Manual of Evidence, states, "An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must, be drawn in the circumstances."
[129] As set out by Ducharme J. in R. v. Munoz[^5]: "Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary facts to the inference or inferences sought to be drawn."
Co-Principal and Party Liability
[130] The position of the Crown is that while it is not possible to identify the individuals who performed specific acts within the restaurant during the robbery, I should conclude that the five men were engaged in a joint enterprise and that both of the accused in this case played a role in that enterprise. Alternatively, with respect to Mr. Pich, the Crown has argued that if I am unable to conclude that Mr. Pich was a co-principal, I should nevertheless be satisfied that he was a party to the robbery.
[131] Section 21(1) of the Criminal Code, R.S.C., 1985, c. C-46 provides:
Every one is a party to an offence who
a. actually commits it;
b. does or omits to do anything for the purpose of aiding any person to commit it; or
c. abets any person in committing it.
[132] As stated in E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2d ed. (Toronto: Canada Law Book 2010) at 15-81:
Where several persons act together toward a common criminal object, with the ‘requisite intent’, and any of them jointly or severally achieve the common object, all who are present at the commission of the crime commit the crime as joint principal offenders.[citations omitted]
[133] The Supreme Court examined the nature of aiding and abetting in R. v. Briscoe:[^6]
¶14 The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence… Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor ... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, 1997 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. ...
¶15 ... The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
¶16 The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. …
¶17 As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed….
[134] In R. v. Sparrow,[^7] Martin J.A. writing for the Court said:
¶53 Where, on a joint trial, there is evidence that a crime was committed by two or more accused persons acting in concert, it is, of course, appropriate to charge the jury with respect to the provisions of s. 21 of the Code even though it is uncertain which accused was the actual perpetrator. I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.
[citations omitted]
[135] As Griffiths J.A. said in R. v. Wood:[^8]
... Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s. 229(a), or as aiders or abettors pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear. ...
[136] With those principles in mind I now turn to my application of the principles to the facts of this case against each accused person.
VI Analysis
Brian Mensah
[137] The circumstantial evidence that points to the involvement of Mr. Mensah is the following:
• He is a black man and dressed in dark clothes and wore a grey hoodie like one of the men in the robbery;
• He was in the company of four other men one hour after the robbery. Five men committed the robbery;
• He was carrying a bottle of liquor that I infer was taken in the robbery;
• He accompanied Mr. Dirie upstairs after he entered 11 Flemington. Mr. Dirie was carrying the black backpack when he went upstairs with Mr. Mensah and was not carrying it when he came down. I infer that Mr. Dirie hid the backpack and the guns when he went upstairs with Mr. Mensah;
• He was in the foyer of the building when Mr. Pich handed items to Mr. Ali; and
• He was arrested in the apartment that contained the stolen property.
[138] In assessing the available inferences from the evidence as a whole I have considered that almost one hour had passed between the robbery and the entry of the five men into 11 Flemington, that Mr. Mensah lived in the neighbourhood and appeared to know the other men, that he was wearing clothing that was unremarkable for weather in January and that there were a number of men in the vacant apartment.
[139] The evidence in its totality supports the inference that Mr. Mensah was with the participants after the robbery and was aware that they possessed the BB guns and the property stolen in the robbery. The evidence does not permit me to infer that Mr. Mensah was present at or participated in the robbery.
[140] While Mr. Mensah’s presence at 11 Flemington in all of the circumstances is consistent with involvement in the robbery, it is not the only rational inference from all of the circumstances. Mr. Mensah lived in the area and appeared to know the other men. There was a gathering of young men in the vacant unit. The circumstances are equally consistent with Mr. Mensah joining the other men to drink and to attend the vacant apartment.
[141] While I would have no difficulty in concluding that Mr. Mensah probably or likely committed the robbery, I am unable to conclude beyond a reasonable doubt that Mr. Mensah did so. As a result, I must find Mr. Mensah not guilty of the charges.
Brian Pich
[142] In assessing the evidence relating to Mr. Pich, I have carefully considered the evidence of the witnesses as to the skin colour of the individuals who robbed the restaurant. Mr. Pich is Caucasian. Only one witness, Ms. Chiu, testified that she saw a Caucasian man.
[143] As I have already indicated, there are difficulties with this aspect of Ms. Chiu’s evidence. She testified that she saw the white man when his face covering slipped down as he was interacting with one or both of the waitresses. At one point Ms. Chiu said that the man left the covering down when he spoke to the waitresses. At another point she said that she could not remember. Both waitresses knew Mr. Pich and could have identified him if he was present and speaking to them without a covering on his face.
[144] Ms. Chiu said that he had a light yellow bandana on his face. No other witness described a yellow bandana.
[145] Considering her evidence as a whole and in the context of all of the other evidence I cannot rely on Ms. Chiu’s evidence. I find that she was a credible witness who was doing her best to tell the truth, but her evidence was not reliable. I have not relied upon her evidence concerning the white man.
[146] I also conclude, however, that the evidence of the witnesses does not exclude Mr. Pich. None of the witnesses saw the skin colour of every participant in the robbery. As I indicated earlier, I can only conclude that four of the five individuals were black and the skin colour of the fifth man is not known.
[147] I have considered all of the circumstantial evidence in the case to determine whether I am satisfied beyond a reasonable doubt that Mr. Pich was a party to the offences in this case. This includes the following:
• Mr. Pich was an employee at The Lobster Trap Restaurant and was familiar with the layout and routine of the restaurant. The men who robbed the restaurant entered through an unlocked backdoor near closing time.
• One of the men asked where the safe was (according to Ms. Bocher and Mr. Poon). From this I infer that the men robbing the restaurant were aware of the existence of a safe. The safe was not visible from the part of the restaurant accessible to patrons. Mr. Pich would have known of the existence of the safe like all of the other employees.
• Mr. Pich no longer lived in Toronto but was present at 11 Flemington in apartment 102 with the stolen property from the robbery one hour after the robbery took place on January 25, 2012.
• Mr. Pich had a 100 Yuan note hidden between his buttocks when he was arrested on the evening of January 25, 2012. 100 Yuan notes had been taken in the robbery. Counsel for Mr. Pich pointed out that Mr. Pich also possessed rupees when he was arrested. The rupees were not hidden in his buttocks. The presence of a hidden 100 Yuan note one hour after 100 Yuan notes were stolen in a robbery is another piece of circumstantial evidence that supports the conclusion that Mr. Pich was involved in the robbery.
• There was a green bandana found in Mr. Pich’s car the night of January 25, 2012. Ms. Bocher testified that she saw one of the perpetrators of the robbery wearing a green bandana. The other witnesses did not see a green bandana but, as I have already indicated, no witness saw every participant well. The patrons were directed to look down. The patrons were also in two different rooms and saw different individuals. A green bandana is not an entirely unique item, but the presence of the bandana in the car of Mr. Pich is another piece of circumstantial evidence that supports the conclusion that Mr. Pich was a participant in the robbery.
• Mr. Pich entered 11 Flemington with Mr. Mensah, Mr. Edwards, Mr. Ali and Mr. Dirie one hour after the robbery. These five men were known to each other. As I have already indicated, Mr. Dirie and Mr. Ali have admitted participating in the robbery. Mr. Pich can be seen in the surveillance video handing something to Mr. Ali as they enter the building. I infer that Mr. Pich and Mr. Ali did not coincidentally arrive together in the lobby of 11 Flemington.
[148] I have considered the totality of the evidence and any explanations for the circumstances and other inferences available on the totality of the evidence.
[149] It was argued that the evidence of some witnesses describing the men asking for a key and asking for the location of the safe was inconsistent with Mr. Pich being involved since he would have known the location and that the safe was a combination safe.
[150] The evidence as a whole is consistent with Mr. Pich informing his accomplices about the existence of the safe, but not being the individual to approach the employees. Ms. Bocher testified that the man who asked for access to the safe said “open the safe, open the safe”. She said that later, when the men were taking liquor, one of them asked for her to use her key to open the refrigerator. The evidence of the witnesses who heard someone ask for a key is consistent with Ms. Bocher’s evidence that one of the men asked for the key to the refrigerator.
[151] It was also argued that Mr. Pich could have spoken about the layout and routine of the restaurant without being part of the planning and execution of the robbery and could have attended the apartment at 11 Flemington with the two other participants of the robbery by coincidence. This suggestion is not only somewhat farfetched and speculative; it does not take into account the totality of the evidence, including the exchange of items with Mr. Ali at the door of the apartment, the bandana in the car and the 100 Yuan note on Mr. Pich’s person when he was arrested.
[152] Viewed in its totality, I am satisfied that the circumstantial evidence in this case supports the inference that Mr. Pich participated in the robbery. He assisted in the planning of the robbery by providing information about the routine and layout of the restaurant. He assisted in the execution of the robbery by driving the participants to and from the scene. He did this knowing that they intended to commit robbery and knowing that they possessed weapons and masks for this purpose. He intended to assist in the commission of the offences. While I cannot draw a conclusion about his precise role inside the restaurant, I am satisfied that the robbery was a joint enterprise and that he was a party to it. This is the only rational inference from the totality of the evidence. Common sense and logic cannot support any other inference.
VII Conclusion
[153] I am therefore satisfied that Mr. Pich is guilty of all counts. His participation in the joint enterprise of robbing the restaurant and patrons using masks, imitation firearms and a knife lead to a finding of guilt on all counts. The use of the knife in the robbery of Wu Hao was a part of this enterprise and although I cannot conclude that Mr. Pich was the individual who held the knife against the neck of Mr. Hao, his participation in the robbery makes him liable for that offence as well as the robbery and firearm counts.
[154] I find Mr. Mensah not guilty of all counts.
M. Forestell J.
Released: December 1, 2014
Appendix “A”
Agreed Statement of Fact
Pursuant to s. 655 of the Criminal Code, no evidence need be called to establish the following facts, which are admitted by the Crown and the Defence.
Mr. Pich was a former employee of the Lobster Trap Restaurant.
The time of the 911 call placed by Emma Whitaker was 9:54pm.
A $100 Yuan bill of Chinese Currency was found by police in Mr. Pich’s buttocks during the search conducted following his booking at 32 Division.
The black Volkswagen Golf belonged to Mr. Pich.
Two knives and a green bandana with pattern were located by police in Mr. Pich’s vehicle. These items were found in the locations within the vehicle as captured in the photographs of the vehicle. The photographs are filed as exhibits in the trial. A consent sample was taken from Hao Wu. The knives were submitted for the presence of blood. No blood was found on those knives.
Two guns were seized from abandoned storage locker #204 at 11 Flemingdon. The black knapsack was located inside the same storage locker in the same area as the guns, under some garbage bags. The guns were located under the garbage bags but not inside the knapsack. The guns were between a bent book and some cardboard. The black Prada wallet was located inside the knapsack. Mrs. Dirie confirmed that the backpack belonged to Awale Dirie. Awale Dirie is carrying a black knapsack on the surveillance video. The guns were determined to be BB guns. They did not pass the s. 2 definition of a firearm. They are imitation firearms.
On January 25, 2012 Awale Dirie resided at 11 Flemington Road, Apartment 208, in Lawrence Heights.
Javon Edwards lived at 48 Edengarth Court, in Lawrence Heights.
Brian Pich lived at 2815 Windjammer Road, in Mississauga.
Brian Mensah’s addresses were 9 Flemington Road, Apartment 404, Lawrence Heights and 5 Biggin/Bingham Court. He provided the Bingham/Biggin Court address during the booking process.
Aman Ali lived at 100 Lotherton Parkway, Apartment 506, in Lawrence Heights.
Clothing and Money
When arrested, Mr. Pich was wearing a black jacket, a dark grey sweater and shirt, a white tank top, black shoes with a red sole. Money seized from him was as follows: Rupees--5 X $100; 1 X $500, Canadian—2 X $20; 1 X $10; US—1 X $1.
Brian Mensah was wearing black jeans, a shiny black jacket with hood, a light grey hoodie, a grey baseball cap with a black brim, and ear flaps, with round sticker on brim, black & red Air Jordan shoes. (see photos) $65 Canadian was seized—3 X $20, 1 X $5.
Aman Ali was wearing a black jacket, a red T-shirt, Blue Jeans, Checkered Button up Shirt; Black & Red shoes; black and grey checkered hat with ear muffs; red bandana. As outlined in the booking video, he had approximately $840 in Canadian currency.
When arrested Javon Edwards was wearing a Black button up sweatshirt, a hooded shiny blue winter jacket, black pants. He had $110 Cdn—1 X $100, 2 X $5.
The clothing worn by Mr. Dirie is as on the booking video and as in the photographs of him.
Mr. Dirie, Mr. Mensah, Mr. Edwards, Mr. Pich and Mr. Ali are the 5 men captured by surveillance video entering 11 Flemingdon Road on January 25, 2012 at 10:50 pm. Mr. Mensah is drinking from a bottle.
Mr. Ali and Mr. Dirie both pleaded guilty to robbery and other counts, and admitted to being involved in the robbery at the Lobster Trap Restaurant. Both admitted to being captured on surveillance video entering the building at approximately 10:50pm.
Mr. Dirie resided at the time at 11 Flemingdon, Apartment 208. He is seen on the video entering the building first and heading up to the 2nd floor, followed by Mr. Mensah.
After police had secured the restaurant, Otto Brtnik, the owner was permitted to enter the restaurant. He checked the till along with Tatiana Bocher, and reported to PC Dawn Heighton the amount of money from the till that was taken, and the liquor that was taken. Approximately $750 in cash from the till was taken. The following liquor was reported stolen: a ¾ full 40 oz bottle of Smirnoff Vodka; a ¾ full 40 oz bottle of Bacardi Dark; a 750 ml bottle of Grand Marnier; Lapereyre White Wine; Martini Vermouth. Otto Brtnik advised Officer Heighton of this information, she noted the missing liquor and cash in her notebook. She passed on the information to Det. Wookie.
The money taken from the lobster trap restaurant funds was the tip money, cash proceeds, and some “float” money in the cashier’s till. These amounts totalled approximately $750.
The money taken from Hao WU was approximately $1,200 Cdn. Hao Wu’s cell phone, a black Samsung F490, and his cream coloured Gucci wallet were taken during the robbery. Both were valued at approximately $400. His cell phone was among those recovered at 11 Flemingdon. He recalls there being approximately $1,200 Cdn in his wallet.
The money taken from Shaoquing Lei included approximately $1,000--$2,000 in Chinese Currency as well as some Canadian currency (approx. $170) and some US dollars. Her wallet and items within her wallet were also taken.
A fingerprint of Aman Ali was located on one of the liquor bottles taken from the Lobster Trap Restaurant, the one located behind the door at 11 Flemington Road, Unit 102.
Forensic investigators refer to a principle of investigation: “Absence of evidence is not evidence of absence.” When an individual touches an object or surface, sometimes forensic evidence, like a fingerprint or DNA, is left on the object or surface and sometimes it is not. Whether evidence will be left on the surface depends on a variety of factors, and in the case of fingerprints particularly, the surface, temperature, humidity, and factors related to the individual’s skin are contributing factors.
No party arrested in the apartment at 11 Flemington Road, Unit 102 was wearing or had a red hoodie.
The reason for interrupting the taking of Mr. Pineda’s statement was so that Mr. Pineda could give police and one of the customers (Daniel Poon) access to a computer in a room in the building. Mr. Poon had an application on his cell phone that could help locate the phone. However, the application was not properly activated or connected to the internet. After this effort at locating his phone on the computer proved unsuccessful, the room where Mr. Pineda provided access to a computer was secured, and Mr. Pineda subsequently completed his statement. He did not speak to any other witnesses during this period.
The witnesses were kept separate and apart during the taking of the statements.
The money seized by police during the investigation was: Cdn $2, 785; Rupees $1,100; $7 USD; Yuan $805. $820 was seized from Mr. Ali (16 X $20; 8 X $50; 1 X $100). $110 Cdn was seized from Javon Edwards, on his person (2 X $5; 1 X $100). Seized from Brian Pich, on his person (not including the $100 Yuan in his buttocks) was: $50 Cdn, $1 USD, $1,100 Rupees. The amount of money taken from the closet of bedroom #1: $1, 625 Cdn (13 X $100, 1 X $50, 11 X $20, 2 X $10, 7 X $5); $6 USD; $705 Yuan (7 X $100, 1 X $5). Seized from Awale Dirie was $115 Cdn (4 X $20, 7 X $5). Seized from Mr. Mensah was $65 (3 X $20, 1 X $5).
On June 26, a police officer from 32 Division drove the distance from 1962 Avenue Road to 11 Flemingdon. It took him 6 minutes and 20 seconds. The distance travelled was 4.3 kilometres. He also travelled from 1962 Avenue Road to Yonge and Shepherd, and from there to 11 Flemington. That drive took 18 minutes and 6 seconds. The distance travelled was 11.4 kilometres. This test drive was done in good driving conditions, and began at 10:06pm.
COURT FILE NO.: CR/14/40000/3970000
DATE: 20141201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENSAH and BRIAN PICH
REASONS FOR JUDGMENT
M. Forestell J.
Released: December 1, 2014
[^1]: R. v. Kish, [2011] O.J. No. 957 at paras 3, 4 and 5 (S.C.J.) [^2]: [1996] O.J. 321 at para. 11 [^3]: One man was permitted to leave without being arrested. [^4]: 2011 ONSC 1349, [2011] O.J. No. 4204 (S.C.J.) at paras. 234 and 235 [^5]: 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) [^6]: 2010 SCC 13, [2010] 1 S.C.R. 411, paras. 13-17 [^7]: 1979 2988 (ON CA), [1979] O.J. No. 1233 at para 53 (C.A.) [^8]: (1989), 1989 7193 (ON CA), 51 C.C.C. (3d) 201 at 220 (Ont. C.A.)