R. v. Gordon, 2015 ONSC 1192

COURT FILE NO.: 12-10000403

DATE: 20150223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW GORDON

Rebecca Edward, for the Crown,

Andrew Gordon on his own behalf

HEARD: February 4, 5, 6, 9-13, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT

[1] On the afternoon of January 9, 2010 Robert Shore was working in his office. Mr. Shore is a jeweller. He sells diamonds. A customer named “Alberto Greco” was supposed to pick up a very large and expensive diamond that day. It was a Saturday. The customer was not “Alberto Greco”. His name was David Compagnoni. Instead of coming in, purchasing the diamond and leaving, Mr. Compagnoni arrived with another man. Mr. Shore described this other man as a large and strong black man dressed in a construction vest and wearing a hoody. A security camera photo clearly shows the three men, including the man in the safety vest.

[2] Mr. Compagnoni’s original plan was to defraud Mr. Shore, but, to paraphrase Robbie Burns, the best-laid plans fraudsters and other criminals often go astray. When Mr. Compagnoni and the man in the safety vest got inside Mr. Shore’s office they did not buy jewellery. They did not try to defraud Mr. Shore. Instead, they carried out an armed robbery using a gun, handcuffs, and duct tape.

[3] Was the man in the safety vest and hoodie Mr. Gordon? That is what this trial was about.

FACTS:

1. The Set Up

[4] Robert Shore is a diamond importer. He sells diamonds predominantly to stores and manufacturers. He occasionally sells to the public when individuals are referred to him. Mr. Shore’s office was at 27 Queen Street East, Unit 902, in the City of Toronto. He described the security set-up. The office had what he called a “trap” or two-door entry. Essentially, he lets a person in the first door. The person cannot leave until he opens the second door. The building also has video surveillance. In order for a visitor to come to the 9th floor Mr. Shore is required to go down to the lobby and let them in. An elevator key is required.

[5] In January 2010 he received a phone call from a man named Alberto Greco. He now knows that this man is David Compagnoni. I will use Mr. Compagnoni’s name for convenience. Mr. Compagnoni introduced himself using the name Alberto Greco. He said that he was from Vancouver and mentioned that a customer had referred him. The customer’s name seemed familiar to Mr. Shore. Mr. Compagnoni said he was in the drywall business. As well, Mr Compagnoni mentioned that he normally dealt with a jewellery store in Vancouver. Mr. Shore knew the store to be a very high-end store that he had dealt with from time to time. He was, therefore, comfortable in dealing with this new customer.

[6] David Compagnoni testified for Mr. Gordon. He said that he is also in the jewellery business. His family owned jewellery stores and he had his own business. Antonio Bandiera gave him Mr. Shore’s contact information. Mr. Bandiera did business with Mr. Shore. Mr. Bandiera briefed him on what to say. The original plan was to use forged bank drafts to purchase the diamond. They would go to Mr. Shore’s office on Saturday as the banks would be closed. The fraudulent draft could not be verified until Monday. Mr. Compagnoni said that Marco Cippollone arranged fake identification for him in the name of Alberto Benji. (Someone, likely Mr. Shore, confused the names Alberto Greco and Alberto Benji. It doesn’t matter). He used the fake identification as part of his attempt to carry out the frauds. He said that he arranged obtaining the blank bank drafts from a man in a bar whose name he did not remember. He went with Mr. Bandiera to Niagara Falls to pick up the drafts.

[7] Mr. Cippollone also testified for the defence. He agreed that he had attended at Mr. Shore’s business with Mr. Compagnoni one time. Mr. Compagnoni identified himself as Alberto Benji. He supplied the fake identification in the name of Alberto Benji to Mr. Compagnoni. He knew that Mr. Compagnoni intended to defraud Mr. Shore. He said he knew nothing about the armed robbery.

[8] Mr. Shore testified that Mr. Compagnoni came in to the office at least twice prior to the robbery. On one of the visits (I draw the inference that it was likely the first visit, although nothing significant turns on that) Mr. Compagnoni came with a friend. This friend was obviously Mr. Cippollone. Mr. Compagnoni said that he was looking for a large 3 ½ or 4-carat diamond as an engagement ring to give to his girlfriend. Mr. Shore said that he would find one for him and gave him a quick lesson on diamonds. The friend was also looking for jewellery. The friend did not participate in the robbery.

[9] Mr. Shore told Mr. Compagnoni a couple of days later (likely during the second visit) that he had a 5-carat diamond and two 4-carat diamonds. Mr. Compagnoni liked the 5-carat diamond. Mr. Shore quoted him a price of around $220,000.00. Mr. Compagnoni then left and said he would get back to Mr. Shore. He then called and negotiated. They settled on a price of $220,000.00 including the ring. They agreed that Mr. Compagnoni would pick up the diamond on Saturday January 9, 2010. He said he needed it for that evening as he intended to present the ring to his girlfriend. They agreed on other terms.

[10] Mr. Shore testified that Mr. Compagnoni said he would pay using a bank draft. Mr. Shore’s friend warned him about fraudulent bank drafts, especially since Mr. Compagnoni was coming in on a Saturday. He called Mr. Compagnoni and said that he could not release the merchandise until he had verified the bank draft. He then made arrangements to have the draft verified by fax that day.

[11] Mr. Bandiera testified that his family has a jewellery business in Woodbridge. In 2010 he was on the wholesale side of the business. Mr. Shore was one of his suppliers. In January 2010 he was introduced to Mr. Compagnoni. They met in Mr. Bandiera’s office. Mr. Compagnoni told him that he was getting divorced and wanted to sell some of his jewellery. One day he went with Mr. Compagnoni to a Tim Horton’s in Niagara Falls. Mr. Compagnoni asked Mr. Bandiera to drive him. Someone gave Mr. Compagnoni an envelope. He saw that Mr. Compagnoni had two blank Scotiabank bank drafts. He was aware that the bank drafts could be used fraudulently.

[12] On another occasion Mr. Compagnoni went with him to Gravenhurst while he dealt with a store there called Gem & Dia. Mr. Compagnoni came into the store while he was dealing with the staff although Mr. Bandiera had asked him to wait in the car.

[13] Mr. Bandiera testified that he was concerned that Mr. Compagnoni was going to use one of the blank bank drafts to purchase goods fraudulently at Gem & Dia. He warned Mr. Compagnoni not to use them there. After the Gravenhurst incident, but before the robbery, Mr. Bandiera heard from the owner of a jewellery store in Mississauga called Gem Art Fantasy that someone – plainly Mr. Compagnoni – had tried to buy jewellery with a fake bank draft. He received that phone call on a Thursday.

[14] Mr. Bandiera and Mr. Shore met on Saturday January 9 2010 just prior to the robbery. Mr. Bandiera dropped off some unsold product and about $32,000.00 in U.S. and Canadian currency. Mr. Shore told him that he had a customer named Alberto coming in that afternoon to purchase a 5-carat ring and would use a draft to pay. Mr. Shore also told him that he was going to verify the draft. Alberto was the name of the man who had tried to use a fraudulent draft at Fantasy Gem Art. Mr. Bandiera says that he “put two and two together” and realized that it was Mr. Compagnoni who was going to do the fraud. He left Mr. Shore’s office at 1350. He testified that he received a call from Mr. Compagnoni. Mr. Compagnoni said he was buying the diamond. Mr. Bandiera informed him that Mr. Shore was going to verify the draft. He did not think about warning Mr. Shore, as “he had other things to take care of.” He further testified that on Monday he heard from Mr. Shore that someone had tried to purchase jewellery using a bank draft but had committed an armed robbery. Of course, Mr. Bandiera already knew that.

2. The Heist

[15] Mr. Compagnoni testified that on the day of the robbery he made arrangements to meet Mr. Bandiera. Mr. Bandiera picked him and drove him to Mr. Shore’s office. There was a black man in the back seat of Mr. Bandiera’s car. Mr. Compagnoni described him as between 5’10 and 6’, stocky, with a thick build, and what he called rasta braids. They were not introduced and they did not speak. The man muttered a few words with a thick Jamaican accent. He was wearing some kind of construction outfit. There was also a bag in the car. The bag had duct tape, handcuffs, and a pistol. Mr. Bandiera supplied the bag.

[16] Mr. Shore testified that Mr. Compagnoni came to the office with another man. He took the elevator down, let the men in, and then took them up to his office. The security photo shows Mr. Shore leading the two men in at 1420.

[17] In court, Mr. Shore described the other man as being black, a little taller than him, about 6’1”, very muscular and strong, and having salt-and-pepper hair. He could not recall if the man had facial hair. He said that he was wearing an orange safety vest and had a mask around his neck. It was a medical mask. The men told Mr. Shore that they were returning from a drywall job. The man was also wearing a hoody due to the very cold weather and gloves. Mr. Shore testified that the black man had no accent and had scruffy hair. He certainly did not say that the black man had dreadlocks and a thick Jamaican accent.

[18] He said that as they went upstairs the conversation was friendly and light. The unknown male, whom Mr. Shore identified in court as Mr. Gordon, did not participate that much in the conversation. Mr. Compagnoni stated that his friend was looking for a small gift for his wife for a few hundred dollars.

[19] Mr. Shore brought the men through the “trap” into his office. As he turned to go behind his desk he heard a yell. Someone – the man he identified as Mr. Gordon – slammed him against the wall. Mr. Shore struggled but the other man was larger and more powerful. This man cuffed him while Mr. Compagnoni put duct tape on his mouth. While Mr. Shore and the other man struggled, Mr. Compagnoni gathered up merchandise and put it in a bag. At one point Mr. Compagnoni pulled out a silver handgun and told Mr. Shore to stop struggling or he would shoot him, or words to that effect. The other man, who was sitting on Mr. Shore, told him to stop struggling, or he would stab him. Mr. Shore did not see a knife. The man sat on Mr. Shore for most of the robbery, which he estimated at 20 to 30 minutes. The security photo shows the two men leaving at 1443, with the man wearing a construction safety vest carrying a bag.

[20] Mr. Shore testified that he was very frightened. He did not think that the men would hurt him physically, but he was very exposed financially. He faced financial ruin.

[21] Mr. Shore testified that Mr. Compagnoni went right to the safe, which was open, and then to the place where Mr. Shore kept cash. It seemed to Mr. Shore that Mr. Compagnoni knew exactly where everything was kept.

[22] As Mr. Compagnoni was taking merchandise, Ronald Pollock came in to the office. Mr. Pollock’s office is right beside Mr. Shore’s but not connected. They are in the same business, but they each have their own companies. They are also brothers in law. Mr. Pollock was also seeing a client in his office. He heard banging coming from the direction of Mr. Shore’s office. Construction is often done in the building on Saturdays and Mr. Pollock at first assumed that was what was happening. When his client left he went to Mr. Shore’s office to see if he knew about the construction. He has a key. When he went into the office he saw Mr. Shore lying on the floor with a man standing over him. At first he thought that Mr. Shore had had a heart attack and the man was assisting him. Another man pushed Mr. Pollock down and threatened to shoot him. He opened his vest and showed Mr. Pollock a gun. Mr. Pollock described the gun as silver and looking like an old-style six-shooter. The man put handcuffs on him and tried to bind his mouth with tape, but only wrapped it around his chin.

[23] Mr. Pollock testified that the men left shortly after pushing him to the ground and putting the cuffs on him. The man in the construction vest said words to the effect of “let’s get out of here”. After they left Mr. Pollock realized that the handcuffs were not real and simply broke them. He assisted Mr. Shore as they cut away the tape. They went back to Mr. Pollock’s office and called 911. After the men left Mr. Pollock discovered that the cuffs weren’t real. The men were able to simply rip them off. Mr. Pollock untied him. They hit the panic button. The police arrived within a very short time.

3. The Aftermath

[24] Mr. Compagnoni testified that after the robbery Mr. Bandiera picked him and the other man up. They drove back to the condo. They dropped off the other man in the area of Queensway and Islington and he went on his way. Mr. Compagnoni and Mr. Bandiera then went into his condo at 1040 The Queensway. Only Alicia Kowalski, Mr. Compagnoni’s sometime girlfriend, was there but she was upstairs with her dogs. There was nobody else present. He specifically denied that Mr. Gordon was present. He said that Mr. Bandiera was there for about 45 minutes. He took the gun, all of the cash, and all of the jewellery, and left. He testified that he did not want to start a scuffle with Mr. Bandiera, as he is not, as he put it, a “predatory type of person”. As I commented in court, that may be news to Mr. Shore.

[25] Ms. Kowalski was living at Mr. Compagnoni’s condo at 1040 The Queensway on January 9 2010. She was working as a stripper at the time. She stayed at the condo on the weekends; otherwise she worked at the Sundowner in Niagara Falls during the week and lived at a motel. The landline at 1040 The Queensway was in her name. On the afternoon of the robbery she was watching television upstairs in the condo. She testified that she heard a commotion downstairs. She went to the stairs to investigate. She heard three voices, one of which was Mr. Compagnoni’s. He told her to go back upstairs. She did. She saw a bunch of little yellow envelopes on the floor. She did not know what they were. She testified that she does not know Mr. Gordon, Mr. Bandiera, or Mr. Cippollone.

[26] Mr. Bandiera testified that later in the afternoon Mr. Compagnoni called him and told him to come to the condo. Mr. Compagnoni told him to come around the back. He identified himself on a security camera as the person jumping over some kind of fence at the back of the building. The camera captures him as going in at 15:05:37 on January 9 2010 and exiting at 15:14:00 on January 9 2010. On the exit video he appears to be carrying a carrying a jewellery bag in his hand. It is unclear from the video what he was carrying it in. He explained that he could not leave his jewellery unattended in the car, due to insurance rules.

[27] Mr. Bandiera explained that he went to Mr. Compagnoni’s because he was going to take the diamond and re-sell it. The plan was that they would share the money. This was the conspiracy to which Mr. Bandiera eventually pleaded guilty. They agreed on this plan the day before. He had no difficulty with ripping off Mr. Shore, as he believed that Mr. Shore had ripped him off of $32,000.00.

[28] When Mr. Bandiera went to the house he saw a black man and heard a woman screaming upstairs. He also saw a gun, some jewellery, and some money. He thought that the crime had become a robbery and he wanted nothing to do with it. He testified that he had seen Mr. Compagnoni with a black man driving a silver Honda at a gas station a few days before. He testified that he thought that the black man at Mr. Compagnoni’s after the robbery was the same man he had seen at the gas station a few days earlier. In court he said that Mr. Gordon looked very similar to that guy but he could not say for sure.

4. The Investigation

[29] On the afternoon of the robbery the Toronto Police hold-up squad attended at Mr. Shore’s office at 27 Queen Street East. They interviewed Mr. Shore and Mr. Pollock, watched the building videos, and had the forensic team analyze the crime scene. Mr. Shore shared his suspicions that Mr. Bandiera had provided the robbers with information. The police commenced investigating Mr. Bandiera. They also obtained a fingerprint from the duct tape used on Mr. Shore. The fingerprint belonged to David Compagnoni. They tracked him to 1040 The Queensway and commenced surveillance. The police obtained the bank draft and identification used by Compagnoni in the fraud at Fantasy Gem Art. The identification had his photo but the name Alberto Benji. The police also observed Mr. Compagnoni with Marco Cippollone. They identified Mr. Cippollone and determined he was the Mario Greco from the Fantasy Gem Art fraud. Further investigation tied Ms. Kowalski and Mr. Compagnoni to 185 Legion Road. Ms. Kowalski testified that this was her condo but that she was staying with Mr. Compagnoni while she was waiting for it to be ready. On January 15 2010 the police executed a series of search warrants and arrested Mr. Compagnoni, Mr. Bandiera, and Mr. Cippollone.

[30] On January 18 2010 the police received a tip regarding Mr. Gordon. They commenced an investigation on Mr. Gordon. They gathered information about him and conducted surveillance. They matched cell phone numbers. They obtained a photo from the Ministry of Transport. On January 21 the police conducted a photo line-up with Mr. Shore. Mr. Shore identified Mr. Gordon as being Mr. Compagnoni’s accomplice. On January 22 2010 the police executed numerous search warrants and arrested Mr. Gordon.

ANALYSIS

[31] Mr. Gordon has not testified but has called evidence. If I believe the defence evidence, I must find him not guilty. Even if I do not believe the defence evidence, if it leaves me in a state of reasonable doubt then I must also acquit. Even if the defence does not leave me in a state of reasonable doubt, I must still determine whether, based on the evidence that I do accept, the Crown has proven each element of each offence beyond a reasonable doubt. See: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742

[32] A party may prove a fact by direct evidence, by circumstantial evidence, or by a combination of direct and circumstantial evidence. In this case, the Crown’s case rests on the following elements:

• The direct identification by Mr. Shore of Mr. Gordon as one of the two robbers;

• The identification of Mr. Gordon by Mr. Bandiera as the man who met Mr. Compagnoni before the robbery and was in the condo at 1040 the Queensway after the robbery (in itself circumstantial evidence); and,

• The circumstantial location evidence from the cell phone towers.

[33] If Mr. Shore’s identification and Mr. Bandiera’s evidence is discounted, that leaves the Crown with only a circumstantial case. In that case, the law determines that guilt must be the only reasonable explanation: R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.

[34] In my view, therefore, the issues on this case are as follows:

Does the defence evidence leave me in a state of reasonable doubt?
Does the eyewitness evidence identify Mr. Gordon as the second assailant?
Is guilt the only reasonable explanation?

1. Does the defence evidence leave me in a state of reasonable doubt?

[35] Mr. Gordon called David Compagnoni and Marco Cippollone as witnesses. Whether the defence evidence leaves me in a state of reasonable doubt depends on their credibility. Let me say right at the beginning that I found their testimony to be mostly fiction with the occasional truth, possibly by accident. Their lies were transparent, and they were transparently bad liars. The objective independent evidence contradicts them on key points. Their testimony was obviously calculated to protect Mr. Gordon.

[36] Mr. Compagnoni pleaded guilty to the robbery of Robert Shore and received a sentence of five years in the penitentiary. He is currently on parole.

[37] Mr. Compagnoni testified that a mutual friend in the real estate business introduced him to Mr. Gordon. Mr. Gordon, he was told, had access to private lending. At the time Mr. Compagnoni was renting 1040 The Queensway Unit 109. He was trying to arrange financing so that he could buy it. He had terrible credit. He would not be able to arrange a loan from a bank. As a result he was looking for different funding. He and Mr. Gordon had numerous conversations about funding the purchase. They are both from Hamilton and met in Hamilton. He anticipated making about $100,000.00 from the fraud on Mr. Shore. He needed to make money quickly. When he found out that Mr. Shore was going to verify the drafts he panicked and decided to rob him. He was going to rob Mr. Shore of whatever was in the office. Later he said that the robbery was Mr. Bandiera’s idea.

[38] Mr. Compagnoni also testified that he did not have a car and did not have the use of Ms. Kowalski’s car on the day of the robbery. In my view, however, his evidence on this point is not credible. His movements, as tracked by his cell phone use, show that he was very clearly travelling by car between 12:02 and 12:42 on the day of the robbery. He drove around Mississauga and then drove down Highway 427 and along the Gardiner Expressway to Bathurst and Dundas in downtown Toronto. He made a series of calls around downtown Toronto and then returned to the area of 1040 The Queensway by 15:13. He clearly had the use of a car in order to drive around Mississauga and Toronto since it is unlikely that he took cabs over such long distances over such a long period of time when he claims that he was financially strapped. That car was likely Ms. Kowalski’s.

[39] Furthermore, there was a call from Mr. Bandiera to Mr. Compagnoni at 13:54, four minutes after Mr. Bandiera left Mr. Shore’s office. Mr. Bandiera was located in the area of Adelaide and Church. Mr. Compagnoni was in the area of Bathurst and Dundas. Mr. Bandiera’s subsequent calls show that he stayed in the area of Adelaide and Church while Mr. Compagnoni moved closer to Mr. Shore’s office.

[40] Mr. Compagnoni’s assertion that Mr. Bandiera drove him to the robbery location is therefore not credible. The cell phone tower location evidence, which I accept, indicates that the handsets used by Mr. Bandiera and Mr. Compagnoni were clearly in different places prior to the robbery. For reasons that I set out later, I find that Mr. Bandiera did not drive Mr. Compagnoni to the robbery.

[41] Mr. Compagnoni also contradicted himself on a key point. He initially stated that when he found out that Mr. Shore was going to verify the drafts, he panicked and decided to rob him. In cross-examination, however, Mr. Compagnoni said that when he learned that Mr. Shore was going to verify the drafts he called Mr. Bandiera. Mr. Bandiera decided that they would do the robbery and suggested that a gun would be used.

[42] Mr. Compagnoni’s evidence that the second assailant had long dreadlocks appears to be wrong, based on the surveillance camera shots, although I acknowledge that those photos are not entirely clear. More importantly, this evidence is contradicted by Mr. Shore’s evidence. Although I find that Mr. Shore’s identification of Mr. Gordon is faulty (about which more later) his evidence, unlike Mr. Compagnoni’s evidence, is based on error rather than lies. Furthermore, dreadlocks are very distinctive. I believe that if this assailant had had dreadlocks Mr. Shore would have remembered that, even if the man’s hoody was up. Furthermore, Mr. Shore indicated that the second assailant had no accent. So did Mr. Pollock. Again, I believe that if the second assailant had had a thick Jamaican accent Mr. Shore and Mr. Pollock would have recalled that. I accept the evidence of both of these men over the evidence of Mr. Compagnoni that the second assailant had no accent.

[43] Another obvious contrivance is Mr. Compagnoni’s evidence that he came back to his condo at The Queensway after the robbery by himself. The surveillance video shows that he was with someone. That someone was clearly not Mr. Bandiera. Mr. Bandiera identified himself in the surveillance video. Three men attended the condo, not two, although that is not what Mr. Compagnoni said. Ms. Kowalski’s evidence corroborates the video evidence. Furthermore, I agree with Crown counsel that the idea that Mr. Compagnoni would conduct a robbery with no plan with a man he had never met seems like more than just a bad plan. It seems very unrealistic, especially since Mr. Compagnoni and the other assailant seemed to have pre-arranged roles.

[44] I also find it implausible that Mr. Bandiera took all of the loot and the cash, and possibly the bag with the gun. Although he was clearly carrying a jewellery bag when he left the condo at 1040 The Queensway, it seems rather small for the purpose. I acknowledge that this is not the strongest piece of evidence but it fits into the mix.

[45] Thus, Mr. Compagnoni’s evidence is not worthy of belief. He is a very bad liar indeed. It is very troubling that a man on parole came to court and contrived in order to protect an accused person. His story fits very loosely with the big picture of Mr. Gordon’s defence, but the details do not.

[46] I note that the Rule in Browne and Dunn required that the Mr. Gordon put to Mr. Shore that he was actually robbed by a man with dreadlocks and a thick Jamaican accent. Ordinarily where the rule is not followed it has an impact on the credibility of the subsequent evidence. In this case the rule was not followed. I assume that Mr. Gordon was not aware of it. I will not, however, use Mr. Gordon’s failure to put this evidence to Mr. Shore (and Mr. Pollock) to draw an adverse inference. In my view, even if the rule had been followed it would have made no difference. I have no doubt that Mr. Shore would have denied that the second assailant had a Jamaican accent and dreadlocks. The rule would also have required putting at this evidence to Mr. Bandiera. I have no doubt that Mr. Bandiera would have denied supplying the gun and the duct tape. He undoubtedly also would have denied taking Mr. Compagnoni to the robbery and picking him up afterwards. I am also very sure that he would have denied bringing the man with the thick Jamaican accent to the robbery. Mr. Compagnoni is so lacking in credibility that even a faithful adherence to the rule likely would make no difference.

[47] Mr. Cippollone’s evidence was no better than Mr. Compagnoni’s. The main purpose of his evidence was to show that Mr. Gordon and Mr. Cippollone did legitimate real estate business. Mr. Cippollone testified that he and Mr. Gordon have known each other for 5 to 6 years. They have a business relationship. Mr. Gordon was looking to sell a house and Mr. Cippollone had a potential buyer. He said that he worked with Mr. Gordon to find buyers. He was unable to find a buyer.

[48] Mr. Cippollone said that he did referrals for Howard Smilioci, a licenced real estate agent and a mutual friend. Mr. Cippollone also did referrals for Mr. Smilioci’s wife, who was a mortgage broker. Mr. Cippollone was not licenced as either a real estate agent or a mortgage broker. He says that he was simply paid a finder’s fee.

[49] I doubt very much that Mr. Cippollone does legitimate real estate business. Whatever Mr. Cippollone is, I doubt that he is a legitimate businessman. There is no evidence that any of his business ventures actually bore fruit. All he could say was that “it is a tough business.” It is difficult for me to say how much effort he actually put into legitimate business. On the other hand, Mr. Cippollone seems to have put real time and effort into obtaining a false ID for himself and Mr. Compagnoni in order to carry out frauds. He also said he could not fully recall what he had been convicted of. He testified that Mr. Compagnoni referred to him as “Tony” at Fantasy Gem Art and as “Mario Greco” at Mr. Shore’s office. In Mr. Cippollone’s version he simply “did not correct” Mr. Compagnoni, as if these names were just innocent slips. His current legal troubles do nothing to suggest that these frauds were a one-time (or two-time) affair.

[50] Mr. Cippollone’s criminal record was not entered into evidence although he reluctantly admitted that he was convicted of using a false identification and fraud. When Crown counsel suggested that he was found with identification in different names when he was arrested he said “that’s what I was told”, as if it had happened to someone else. He is currently in custody on, as he put it, “a few charges”. He is not 100% sure what all of them are. He testified that he “was told drugs” and agreed with Crown counsel that the drug was cocaine. He admitted that he did not report all of his referral income on his taxes.

[51] Mr. Compagnoni’s lies are important because they engage the key issues in this trial. Mr. Cippollone’s lies are not particularly relevant, however. Mr. Cippollone (and Mr. Gordon, for that matter) could well have had legitimate business and still carried out crimes. Plenty of people with proper day jobs carry out crimes unrelated to their jobs. Plenty of people living a criminal lifestyle also have some form of day job.

[52] Therefore, I do not believe the defence evidence and it does not leave me in a state of reasonable doubt. Indeed, I believe that it was contrived. That said, I am not using it as evidence of consciousness of guilt: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at para. 67.

[53] I now turn to the rest of the evidence in order to determine whether the Crown has proven each element of each offence beyond a reasonable doubt.

2. Does the eyewitness evidence identify Mr. Gordon as the second assailant?

[54] Eyewitness identification evidence is powerful evidence but is subject to great frailties. The evidence of eyewitnesses must be approached with caution in order to minimize the possibility of wrongful conviction: Hibbert; R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380, [1990] O.J. No. 2063 (C.A.).

[55] In court, Mr. Shore identified Mr. Gordon as the man who spun him around, struggled with him, and sat on him while Mr. Compagnoni gathered up the merchandise. In his testimony, Mr. Pollock described the man standing over Mr. Shore as being tall. He was taller than Mr. Pollock, who is 5’7”. He was wearing bulky clothing. He had a surgical mask around his neck and was wearing a construction safety vest. At no time did Mr. Pollock really see this man’s face, although he could tell that he was black. Mr. Pollock also said that he did not speak with a foreign accent. In cross-examination, he said that he could not remember if the man was wearing a hoody.

[56] On January 21 2010 the police showed Mr. Shore a photo lineup. The lineup consisted of 12 photos of similar-looking black males. Mr. Shore selected No. 2 as the person who sat on him and struggled with him. No. 2 was a Ministry of Transportation photo of Mr. Gordon. The officers asked him to tell them if he recognized any of the photographs. He was also told that “no” was okay. He testified that it was difficult to make an identification because these were not the best pictures. He also noted that he was sure No. 2 was Mr. Gordon but it was a blurry photograph.

[57] On August 25, 2010 the police showed Mr. Shore a second photo lineup. The police told him that the first lineup had a blurry photograph and so a second lineup was necessary. A video recording of the lineup procedure was shown in court and Mr. Shore testified about it. Mr. Shore was given 12 envelopes. Each envelope contained a photograph. The officer who administered the lineup had no connection to the investigation and did not compile the photographs. Mr. Shore was asked to take each photograph out of its envelope, sign and date the back of the photograph, and write “yes” or “no” depending on whether he recognized the person. Mr. Shore selected No. 3 as the person who robbed him. In fact, Mr. Gordon was No. 12.

[58] Having observed Mr. Shore carefully, I found him to be a credible witness. Although he did not exaggerate, he was very confident in court about his identification of Mr. Gordon. Mr. Shore testified that he had a mental picture of the second assailant. He explained his failure to select the correct picture in the second photo lineup because Mr. Gordon looked very different in that picture than he looked on the day of the robbery.

[59] Mr. Shore’s confidence that Mr. Gordon carried out the robbery demonstrates the great wisdom of the common law in putting very little confidence in eyewitness identification evidence. That caution extends especially to very confident witnesses. Mr. Shore was extremely sure that Mr. Gordon was the man. Mr. Shore said he knew Mr. Gordon was the second assailant the moment he saw him in court. That is the sort of comment from an eyewitness that should raise judicial eyebrows.

[60] Mr. Shore is plainly an honest witness doing his best to assist the court, but his evidence is flawed. The original photo lineup was problematic, as the police acknowledged by doing a second photo lineup. The photograph of Mr. Gordon was taken from his Ministry of Transportation photo. The other 11 photographs were taken from the Toronto Police database. As a result, the 11 photos on the lineup from the database are smooth and clear. The Ministry photograph was printed on a piece of paper. That paper was scanned and physically attached to the photo lineup. A Toronto Police forensic artist then manipulated the colour saturation and cropping of the other 11 photos so that they would be similar and none would stick out. The whole thing was then scanned. The problem is that one photograph does stick out – Mr. Gordon’s. His photograph is the only blurry one. Furthermore, his head is noticeably larger than the heads of the other men – it seems stretched and his neck is much wider. Mr. Shore’s evidence was that his assailant was a large and powerful man. It is impossible to know whether Mr. Shore’s attention was drawn to the photo because Mr. Gordon seemed larger and more powerful than the other men in the lineup or because Mr. Gordon really was his assailant. I do not wish to be too critical of the police in conducting the original lineup – there was some urgency to identifying and finding Mr. Compagnoni’s accomplice. The police had an older photo of Mr. Gordon from their database. They made a judgment call to use the newer photograph, even though it created other problems. Indeed, Detective Lemaitre, who I found to be very professional, forthrightly acknowledged the problems with creating this photo lineup.

[61] The second photo lineup also does not assist. Mr. Shore testified that now that he has seen Mr. Gordon in Court, he realizes that No. 12 was the correct one. There is no doubt that the photograph of Mr. Gordon resembles the Mr. Gordon who is in Court. In my opinion, after carefully examining photo no. 2 from the first line up, I am confident that the photograph does not resemble Mr. Gordon as he appears in court. I am thus inclined to give no weight to Mr. Shore’s confident assertion that Mr. Gordon is the assailant, simply because I do not think I can trust Mr. Shore’s power of observation – again, I stress, not because of any dishonesty on his part. I cannot trust his power of observation because of his comment that Mr. Gordon’s photograph in the second photograph looks very different than he did on the day of the robbery. Critically, Mr. Gordon in his second line-up photograph is very recognizably the Mr. Gordon in Court. If he looks so different from the day of the robbery, how could Mr. Shore have been so sure that when he saw him in court he knew Mr. Gordon was the second assailant?

[62] I am also concerned about Mr. Shore’s ability to identify his assailant based on his observations at the time of the robbery. The assailant was wearing a hoody. His head was mostly covered. They did not have extensive interaction. As well, Mr. Shore could not recall whether the second assailant had facial hair.

[63] Mr. Shore testified before me that his assailant had salt-and-pepper hair. He also testified at the preliminary inquiry that his assailant had salt-and-pepper hair. Mr. Gordon clearly has salt-and-pepper hair. Mr. Shore’s observation is undermined by two facts: first, the assailant was wearing a hoody which stayed up the whole time, and in the security camera photograph it appears that it covers much of his head. And second, Mr. Shore did not mention salt-and-pepper hair to Detective Harris who, I gather, interviewed him after the incident. The hair colour of a person is an important identifying feature. Based on the evidence that I have before me, Mr. Shore did not mention salt-and-pepper hair until after he observed Mr. Gordon at the preliminary inquiry. That clearly undermines his observation of the assailant’s hair colour.

[64] Mr. Shore’s in-dock identification also carries little weight. Mr. Gordon was the only black person in the dock of the court and Mr. Shore identified the second assailant as black. The experience of our courts with in-dock identification is that it is virtually useless as a proper tool of identification. I am also mindful that cross-racial identification can be problematic. Mr. Shore is white; Mr. Gordon is black.

[65] Therefore, I can give almost no weight to Mr. Shore’s identification of Mr. Gordon as his assailant. On its own, Mr. Shore’s identification is not enough to support a conviction. That, however, is not the end of the matter. Flawed eyewitness identification evidence that is confirmed by circumstantial evidence can go a long way towards minimizing the danger of conviction based on eyewitness identification: R. v. Quercia at para. 25. Mr. Gordon very obviously matches the general description of the man in the safety vest. I will deal with this issue below when I consider the circumstantial evidence.

[66] I turn now to the identification by Mr. Bandiera.

[67] Mr. Bandiera was originally indicted with Mr. Gordon. A joint trial began before Campbell J. in September 2013. Shortly after the trial started his lawyer contacted the police and the Crown to explore the possibility of a plea of guilty and assistance. He pleaded guilty before McMahon J. on September 18 2013 to one count of conspiracy to commit an indictable offence. On June 4 2013 McMahon J. sentenced him to two years less a day conditional. Mr. Bandiera is currently in custody after being found guilty of two unrelated counts of fraud over and one count of fail to appear. He received a sentence of two years.

[68] Mr. Bandiera’s evidence must obviously be approached with caution. The facts of this case require that I must look for independent evidence that confirms his evidence: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. See also R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, 87 C.R. (6th) 144, [2011] O.J. No. 3344.

[69] Important details of Mr. Bandiera’s story only came out after he decided to cooperate with the Crown. He admitted that he had lied to the police in his first statement. He attempted, ineffectively, to minimize his own involvement in the criminal activity, although I do not believe Mr. Compagnoni’s evidence that Mr. Bandiera was the one who decided to rob rather than defraud Mr. Shore. I also do not believe that Mr. Bandiera supplied the gun, duct tape, and the handcuffs simply because I doubt very much (based on the cell tower evidence) that he and Mr. Compagnoni met just prior to robbery. I certainly do not believe Mr. Bandiera when he said that he was unaware that Mr. Compagnoni would turn from fraud to armed robbery. They clearly had telephone conversations on the day of the robbery. That contact was by text message and voice call. It is clear that both men were aware that Mr. Shore would check the drafts and that the fraud would fail. I accept Mr. Shore’s evidence that the robbers must have known where the cash was located. I accept that that information came from Mr. Bandiera. Furthermore, in his initial statement to the police Mr. Bandiera did not tell the police about the black man at Mr. Compagnoni’s apartment. Those details only came out later, when Mr. Bandiera decided to plead guilty and assist the Crown by testifying against Mr. Gordon. He admitted that he lied to the police in his first statement. He said that he did not mention the black man because he had concerns about his safety.

[70] Having said all that, I accept Mr. Bandiera’s identification of Mr. Gordon as the man with Mr. Compagnoni on the Thursday prior to the robbery. I also accept his identification of Mr. Gordon as the man in Mr. Compagnoni’s condo on the afternoon after the robbery. I accept I accept it because other independent evidence confirms it.

[71] Mr. Bandiera testified that he dropped Mr. Compagnoni at his condo at 1040 The Queensway after driving with him to Gravenhurst. It was the Thursday or Friday before the robbery. Mr. Compagnoni was meeting a friend. He saw the friend. He said that the friend was a tall coloured guy, not a white guy. The friend was driving a silver car. Mr. Compagnoni introduced them. He thinks that the man’s name was Gordon. The fact that this man was Mr. Gordon is corroborated by cell tower evidence. On Thursday January 7 2010, two days prior to the robbery, Mr. Gordon’s cell phone was making calls in the same area as Mr. Bandiera and Mr. Compagnoni. Furthermore, there were telephone calls between Mr. Compagnoni and Mr. Gordon:

• The cell phone used by Mr. Gordon made a call to the cell phone used by Mr. Compagnoni at 17:37:12. Mr. Gordon’s cell phone was in the area of the cell phone tower at Upper James and Alderlea in Hamilton. Mr. Gordon lives in Hamilton.

• The cell phone used by Mr. Gordon received a call at 17:37:38. Mr. Gordon’s cell phone was in the area of the cell phone tower at Upper James and Alderlea in Hamilton.

• Mr. Compagnoni’s cell phone called Mr. Gordon’s cell phone at 19:53:10. Mr. Gordon’s cell phone was in the area of the cell tower at the Gardiner Expressway and Kipling in Toronto. Mr. Compagnoni’s condo at 1040 The Queensway is not far from this cell tower.

• The cell phone used by Mr. Gordon received a call at 21:21:31. Mr. Gordon’s cell phone was in the area of the Airport Business Park near Highway 401.

• Police surveillance officers observed a silver Honda Prelude parked at the residence of Yasim Kaboglu on January 19 2010. At the time of the robbery Ms. Kaboglu was Mr. Gordon’s girlfriend. Mr. Gordon used a cell phone registered in her name throughout the relevant time period. Her address was 12 Anson Drive in Hamilton. It was only about 200 meters from Mr. Gordon’s address at 71 Moxley Drive in Hamilton. The silver Honda was registered to one Avril Gordon. Avril Gordon’s relationship to Mr. Gordon is unknown, although Detective Lemaitre believes that he may be Mr. Gordon’s father. This belief seems reasonable based on birth dates.

• Mr. Cippollone indicated that Mr. Gordon drove a Honda, although he did say he thought it was coloured black.

[72] I infer from this evidence that on the evening of January 7 2010 Mr. Gordon travelled in the silver Honda from Hamilton to meet Mr. Compagnoni in Toronto, and returned to Hamilton later that evening. I am satisfied that the man seen by Mr. Bandiera on the Thursday prior to the robbery was Mr. Gordon, especially since the name “Gordon” was used.

[73] I am also satisfied that Mr. Bandiera’s evidence about the presence of the man in Mr. Compagnoni’s condo after the robbery is also corroborated by independent evidence. I am satisfied that this man was Mr. Gordon:

• The security camera footage taken from 1040 The Queensway shows that Mr. Compagnoni was not alone went he went home after the robbery. He was with another man although the resolution makes it impossible to say that it is Mr. Gordon. Mr. Compagnoni insisted that the man with the thick Jamaican accent did not come into the condo with him. The security camera footage, unlike Mr. Compagnoni, does not lie.

• Ms. Kowalski very clearly said that she heard the voices of three men, and that one of those men was Mr. Compagnoni. This evidence is, in itself, corroborated by the security camera footage. I found Ms. Kowalski’s evidence to be credible, notwithstanding that she displayed a very poor attitude in court.

[74] In making this finding, I am aware that Mr. Bandiera admitted that he has difficulty with giving a description of people of colour. Furthermore, I am also aware that he told the police that the black man at Mr. Compagnoni’s condominium was taller than him. He told the police that the man was 6’4”. Mr. Bandiera is 6’2”. Mr. Gordon asked if he could stand beside Mr. Bandiera so that I could compare their heights. Mr. Gordon is about an inch shorter than Mr. Bandiera. Unlike the problems with Mr. Shore’s identification evidence, however, I am satisfied that this is a minor error. Mr. Gordon is a very large man and his size could easily give a person the impression that he is taller. As well, Mr. Bandiera certainly did not measure Mr. Gordon and was not close beside him. It is an easy error to make.

[75] In court, Mr. Bandiera said that Mr. Gordon “looked like” the guy. The identification of Mr. Gordon in court has little value. I am, however, satisfied that his identification of Mr. Gordon with Mr. Compagnoni two days prior to the robbery is accurate. I am also satisfied that his identification of Mr. Gordon at Mr. Compagnoni’s condo on the afternoon of the robbery is accurate.

3. Is guilt the only reasonable explanation?

[76] With Mr. Shore’s identification ruled out as doing anything other than showing that Mr. Gordon matches the general description of the second assailant, the Crown’s case turns largely on circumstantial evidence. In my view, Mr. Gordon’s participation in the robbery is the only reasonable explanation. I will explain why.

[77] The most obvious circumstantial evidence is Mr. Gordon’s presence in Mr. Compagnoni’s condo after the robbery and his meeting with Mr. Compagnoni on the Thursday prior to the robbery.

[78] The cell tower evidence combined with the text message from Mr. Compagnoni to Mr. Gordon on the day of the robbery is also important circumstantial evidence. I deal first with the text message.

[79] Mr. Compagnoni testified that he had a conversation with Mr. Gordon at some point in the morning to see if he could come up with money to close the transactions. They clearly had more than one, based on the cell phone records. He said that he was trying to line things up and get money. He testified that he did not have any other appointments that day. And yet, he sent this text message to Mr. Gordon at 12:04 pm on January 9 2010, only two hours prior to the robbery:

“Are on schedule”

[80] Mr. Gordon called Mr. Compagnoni about four minutes later and then commenced his journey into Toronto. He was obviously responding to the text message.

[81] Mr. Compagnoni had multiple conversations with Mr. Gordon on the day of the robbery. All were prior to the robbery. None were after. Mr. Gordon drove from Hamilton to Toronto. Mr. Compagnoni’s dedication to the legitimate business discussing financing for his condo with Mr. Gordon on a Saturday while at the same time planning and executing an armed robbery seems very strange and highly implausible. Indeed, so implausible that I do not believe it. Furthermore, if Mr. Bandiera really did take all the cash and loot after the robbery, I would have thought that Mr. Compagnoni would have been no better off financially and would have really needed Mr. Gordon’s legitimate financial help at that point. And yet, according to the cell phone tower evidence, Mr. Gordon made a phone call from a location very near 1040 The Queensway at 15:38:51, and then other calls indicating that he was back on his way to Hamilton.

[82] I turn to the location evidence. Lorne Ellison is an employee of Rogers Communications. He is a senior investigator in the Law Enforcement Support Department. He creates and interprets call detail records. From these records he is able to determine where particular cellular telephone calls are made in relation to particular cell phone towers. He has a great deal of experience with the Rogers network. He has testified on numerous occasions. He has been qualified as an expert witness on five occasions in this Court and in the Ontario Court of Justice. He was qualified in this trial as an expert witness in the area of cell phones, the interpretation of Rogers business records, and specifically call detail reports and cell tower technology.

[83] Mr. Ellison explained how cell phone tower technology works. Essentially, he explained, cell sites are designed to provide 360-degree coverage to an area around the site. The area around the tower is “sliced” into pie shaped slices or sectors. Each sector uses a different transmission and reception frequency. Cell phones use a kind of frequency hopping mechanism in order to maintain communications with towers as they move. The network registers which frequency is used by a particular phone at a particular site. This allows Rogers to determine which “sector” of the pie the cell phone made the call from.

[84] The system is not perfect. Mr. Ellison agreed in cross-examination that GPS is more accurate. Although it may be possible to track some phones in real time under exigent circumstances, the Rogers network is generally capable only of historic locating when a call is made or received or a text message is sent or received. The system does not generally register an inactive phone or a phone that is turned off.

[85] As well, radio signals must travel by line-of-sight, which means that the signal will not penetrate a depression and may be blocked by a hill or heavy concrete building. Mr. Ellison conceded that it is possible a cell phone could make a phone call and appear to be in one sector when in fact it is closer to a different cell tower, although he said that it is unlikely.

[86] I accept that although there are limitations on the system, it is generally accurate. It is certainly accurate enough to place the cell phone locations in this case, because the locations need not be precisely differentiated.

[87] The cell tower evidence combined with security camera footage from 27 Queen Street East and 1040 The Queensway on January 9 2010, the day of the robbery, paints a very compelling picture. I attach as Appendix “A” to these reasons a chart setting out my analysis of the cell tower evidence and the security camera footage. Without getting into the details, the phones I attribute to Mr. Gordon and Mr. Compagnoni were actually registered under other names (in the case of Mr. Compagnoni, a false name; in the case of Mr. Gordon, his girlfriend). There was agreement on this point at trial.

[88] There are slight time differences on the call detail logs between the calls registered to Mr. Gordon’s cell phone and Mr. Compagnoni’s cell phone. Mr. Ellison explained that there may be slight variations but the call durations are identical. Based on that explanation I am satisfied that these differences are insignificant. For convenience, when the two men are communicating I use the times registered to Mr. Gordon.

[89] I make the following findings of fact based on the telephone and security camera analysis:

• Mr. Gordon met Mr. Compagnoni on the Thursday prior to the robbery. This was after the attempted fraud at Fantasy Gem Art using false bank drafts.

• Mr. Gordon received the text from Mr. Compagnoni indicating “are on sched” at 12:04:04. Mr. Gordon called him back four minutes later at 12:08:12.

• Mr. Gordon left Hamilton at about that time and drove to Toronto.

• Mr. Bandiera drove into downtown Toronto sometime after noon. At 12:21:46 he called Mr. Compagnoni.

• Mr. Bandiera and Mr. Compagnoni exchanged text messages just prior to Mr. Bandiera walking out of 27 Queen Street East. They were in different areas of downtown Toronto.

• Mr. Bandiera left Mr. Shore’s office at 13:50:41 and called Mr. Compagnoni four minutes later. Mr. Compagnoni was located at Bathurst and Dundas when that call was made. Mr. Bandiera then made unrelated calls from the area of Adelaide and Church at 13:56:28, six minutes after leaving Mr. Shore’s office, and at 14:37:24.

• Between 14:20 and 14:42 Mr. Gordon and Mr. Compagnoni carried out the robbery.

• Between 15:04 and 15:14 Mr. Gordon, Mr. Bandiera, and Mr. Compagnoni met at Mr. Compagnoni’s condo at 1040 The Queensway. For the reasons mentioned earlier, I accept Mr. Bandiera’s evidence that the other man at the 1040 The Queensway was Mr. Gordon.

• Critically, Mr. Gordon’s cell phone made an outgoing call at 15:38:51, less than 40 minutes after a second man entered the condo at 1040 The Queensway with Mr. Compagnoni. The cell tower at Kipling and Jutland in Toronto picked up this call. That tower is very close to 1040 The Queensway.

• By 16:48:43 Mr. Gordon was on his way back to Hamilton, and passed through Brampton and Mississauga on the way, using Highway 401, Highway 403, and the QEW.

[90] I appreciate that, based on the cell calls, there would have been just over 20 minutes for Mr. Bandiera to drive from 27 Queen Street East to Bathurst and Dundas, pick up Mr. Compagnoni, and then drive him back to 27 Queen Street East. I have no evidence one way or the other about the amount of time it would take to drive from 27 Queen Street East to Bathurst and Dundas. A glance at the map submitted as part of the cell phone tower evidence suggests that it would be very tight, at best. Given Mr. Compagnoni’s overall lack of credibility, combined with the other evidence, I do not accept that the cell tower evidence supports his version of events. In my view, Mr. Compagnoni’s evidence does not detract from my conclusion that Mr. Gordon’s guilt is the only reasonable explanation from the circumstantial evidence, especially in light of the fact that Mr. Compagnoni and Mr. Bandiera entered 1040 The Queensway – and Mr. Compagnoni was clearly with someone else. To put it another way, it would be unreasonable to accept Mr. Compagnoni’s version.

[91] Another issue is that of the duct tape. The police seized a 4-roll package of duct tape from Mr. Bandiera’s workplace. One roll was missing. Forensic testing of that seized duct tape could not rule in nor rule out the roll as matching the duct tape used on Mr. Shore. Duct tape was also seized from Mr. Gordon’s house. Forensic testing excluded it as matching the duct tape used on Mr. Shore. In my view, the seized duct tape is neutral in the analysis. Duct tape is such a ubiquitous product – I would be surprised if most homes or businesses in Canada did not have some duct tape. The fact that a roll of duct tape was missing from the roll found at Mr. Bandiera’s workplace is certainly suspicious, and capable of supporting Mr. Compagnoni’s story. Again, however, Mr. Compagnoni’s story is so lacking in credibility overall that this evidence cannot rehabilitate him or make credible an incredible story, or detract from guilt being the only reasonable explanation.

[92] Although Mr. Shore’s identification of Mr. Gordon as the assailant is faulty, it should not be forgotten that Mr. Gordon fits the general description. By itself, this piece of evidence would clearly not be enough to convict Mr. Gordon. When combined with the other evidence, I am satisfied that Mr. Gordon was the person on the security camera at both Mr. Shore’s office and 1040 The Queensway. There is no other reason why Mr. Gordon would communicate and coordinate with Mr. Compagnoni and then be at his residence in the presence of Mr. Bandiera, the gun, and the loot.

[93] Let me put it this way: it was plainly no coincidence that Mr. Gordon drove to Toronto for a meeting with Mr. Compagnoni the Thursday before the robbery. That was after the attempted fraud at Fantasy Gem Art. More critically, it was even less of a coincidence that Mr. Gordon happened to drive into Toronto from Hamilton on a Saturday just before the robbery, talk to and text with Mr. Compagnoni, strongly resemble the description of the man who robbed Mr. Shore, be in Mr. Compagnoni’s condo right after the robbery, and then drive back to Hamilton. In fact, it is not coincidental at all. It is what happened.

[94] Thus, based on the whole of the circumstantial evidence I am satisfied that guilt is the only reasonable inference to be drawn.

DISPOSITION:

[95] Mr. Gordon is found guilty of Counts 1 to 5 on the indictment.

R.F. Goldstein J.

Released: February 23, 2015

Appendix “A”:

TIME

EVENT

LOCATION