Court File and Parties

COURT FILE NO.: CR14-4-0000621-0000 DATE: 20150710 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – COSMO JAMES, Defendant

Counsel: Frank Schembri, for the Crown Shane Martinez, for the Defendant

HEARD: June 8, 9, 10, 11 and 15, 2015

REASONS FOR JUDGMENT

CLARK J.

INTRODUCTION

[1] On March 19, 2013, two masked men robbed the Bell store at 170 Rimrock Rd., in Toronto. The accused was tried by this Court, sitting without a jury, on a three-count indictment charging robbery, wear disguise with intent, and possession of property obtained by crime.

[2] The trial commenced on June 8, 2015. The Crown’s case was completed on June 15, whereupon the defence elected to call no evidence. On June 15, after hearing submissions, I remanded the matter to June 18 to consider my decision and formulate my reasons for judgment. On June 18, since I had not completed my reasons, I remanded the matter one further day. On June 19, despite still not having completed my reasons, I gave judgment, finding the accused guilty on all three counts. I indicated at that time that I would release my reasons for judgment in writing when the matter returned for sentencing. What follows are my reasons on two evidentiary points that arose during the trial and, in turn, my reasons for judgment on the trial itself.

FACTUAL OVERVIEW

[3] On March 19, 2013, members of the Toronto Police Hold-up Squad (“HUS”) were investigating a number of suspects in connection with several earlier robberies. One suspect was a male by the name of Brandon Caleb (“Caleb”). As part of the investigation, members of the Toronto Police Mobile Support Services (“MSS”)[^1] had been conducting surveillance on Caleb.[^2]

[4] Earlier that day, Detective Constable (“D/C”) Neil Hollywood followed Caleb, who at that time was driving a Toyota Solara, from 56 Blossomfield Drive, in Toronto, to an Enterprise car rental agency, at 3050 Dufferin St., in Toronto, where he rented a Volkswagen (“VW”) Passat, with an Ontario licence plate, BPBH 838. From there, Hollywood followed the VW to 150 Rosemount Drive, in Toronto. Caleb left 150 Rosemount shortly after, accompanied by a woman in her mid-twenties[^3] and two children.

[5] Hollywood followed the VW back to the Enterprise lot on Dufferin St. Arriving there at 2:38 p.m., U/K #1 and the two children boarded the Solara. Caleb and U/K #1 then drove the two cars back to 150 Rosemount. Caleb parked the VW in the rear of 150 Rosemount, but a few minutes later moved it to the front and parked on the street. A short time later, a blue Plymouth Neon arrived at 150 Rosemount.

[6] At 3:06 p.m., Caleb left 150 Rosemount in the VW, followed by the Neon, and drove to a Shoppers’ Drug Mart, at 1995 Weston Road, in Toronto.

[7] At 3:11 p.m., Caleb left the area of the Shoppers’ Drug Mart and drove to Lawrence Square Mall, at Lawrence Avenue and Allen Road, in Toronto. At this point, MSS members noted that there was a passenger in the VW, whom they designated as U/K #2.

[8] Once at Lawrence Square Mall, Caleb entered the mall, while U/K #2 stayed in the car. Shortly before Caleb returned to the vehicle, U/K #2 got out of the car and stood beside it. D/C Hollywood took advantage of that opportunity to take several photographs of U/K #2.[^4]

[9] Hollywood testified that he believes U/K #2 to be the accused. Defence counsel did not challenge that opinion in cross-examination and, in the course of argument, took no issue with the proposition that the person designated as U/K #2 was, in fact, his client. Having examined the exhibits and compared them to the accused as he appears before me, I find as a fact that U/K #2 was the accused (R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197), and hereafter refer to him as such.

[10] Once Caleb was back at the VW, he and the accused then drove to the south side of the mall, where a black male, whom the police designated as U/K #4,[^5] got in the vehicle.

[11] At 3:51 p.m., MSS followed the VW from Lawrence Square Mall to Yorkdale Mall, which is in the area of Dufferin St. and the 401 Highway.

[12] Upon arriving at Yorkdale, at approximately 3:53 p.m., Caleb parked on the north side of the mall, near the Sport Chek store. At that point, the accused left the VW and entered the mall; he was not carrying anything in his hands at that time. Caleb and U/K #4 remained in the car.

[13] One of the MSS crew, D/C Ian Sinclair, parked his vehicle and entered the mall. While parking his car, he lost sight of the accused. Entering the mall, Sinclair was unable to see the accused and, not knowing in which direction he had gone, he positioned himself near the top of an escalator just inside the entrance the accused had used.

[14] At 4:01 p.m., Sinclair saw the accused exiting the mall, carrying a black bag. Sinclair said the location at which he saw the accused can only be reached in one of two ways: from an escalator from the nearby movie theatres or from the Sport Chek store. Sinclair was able to exclude the possibility that the accused had come from the movie theatre escalator because, had he done so, Sinclair would have seen him from his vantage point.

[15] Sinclair followed the accused outside and saw him get back into the VW. The vehicle then left the mall, heading northbound on Dufferin St. Moments later, at 4:05 p.m., MSS lost contact with the VW due to heavy traffic.

[16] One of the HUS officers assigned to the investigation, D/C Liam Wauchope, had not been taking part directly in the surveillance, but was in the area and monitoring the radio. When he learned that MSS had lost the VW, he decided to go to 14 Daystrom Ave., another address associated to the investigation, hoping that the VW might appear there.

[17] A short time after MSS lost sight of the VW, at approximately 4:20 p.m., or perhaps as late as 4:26 p.m., two masked men entered the aforementioned Bell store, announced that they were robbing the store, and demanded to be shown where the high-end cell phones were kept. One employee, Joselito Santua, remained stationary and put his head down on his desk. Another, Loren Schwamborn, took one of the robbers to the store safe, located in an adjacent room, and sat on the floor as first one robber and then the second proceeded to scoop 102 cellular telephones into a hockey bag and leave. After the robbers had left, Bell staff called 911.

[18] The robbery was also reported to 911 by a passing motorist, Christopher Whitten.[^6] Whitten testified that, as he drove past the plaza in which the Bell store is located, he saw three men, each wearing what he described as a ski mask, outside the store walking, in his words, “with a sense of urgency.” Whitten turned into the plaza to investigate what he had seen.

[19] When he first saw the men, Mr. Whitten said that they were approximately 10 to 15 metres from, and walking toward, a vehicle that he described as a white, four-door, VW, bearing a licence plate, BPBH 838. By the time they reached the VW, Whitten had passed them, but he stopped a short distance past the car and continued to make observations. He said he could see the three men milling about the trunk of the car.

[20] Santua and Schwamborn each spoke of only two robbers. Likewise, the security video from the Bell store shows only two robbers. That said, I found Whitten to be an impressive witness and, inasmuch as:

(i) it is clear that the video before the court does not cover all of the area surrounding the store;

(ii) there were three people in the car before the police lost sight of it shortly before the robbery;

(iii) there were three people in it when Wauchope next saw it at 4:40 p.m.;

(iv) Whitten was correct in the details he gave the 911 operator concerning the make of the car and its licence plate; and

(v) it was never suggested to Whitten that he was in error on this issue;

I accept his evidence and find as a fact that, albeit only two men actually entered the Bell store, there were three persons involved in the robbery.

[21] Whitten’s report was, in turn, broadcast over the police radio. Wauchope heard about it on his way to 14 Daystrom.

[22] Wauchope arrived on Daystrom at 4:33 p.m. Approximately 30 seconds after he arrived, while he was still getting set up to observe the premises, the VW appeared. The car came toward him at a fast pace, and came to a quick stop two houses north of 14 Daystrom, where, although no one got out of the vehicle, the trunk popped open. Moments later, the VW was then driven quickly into the driveway of 14 Daystrom. Three males got out and went to the trunk. According to Wauchope, two of them matched the descriptions of the robbers he heard on the police radio. Wauchope observed one of the males pull a large bag, resembling a hockey bag, out of the trunk, put it on his right shoulder, and then, together with the other two men, proceed into the house via the side door. Wauchope immediately began to make a number of phone calls for backup.

[23] At 4:48 p.m., a number of other officers arrived at 14 Daystrom, including two from the HUS, Det. Robert Lemaitre and D/C Richard Rand.

[24] Initially, Lemaitre intended to wait for further backup to arrive, including the TPS Emergency Task Force (“ETF”) before attempting to arrest the suspects. Moments later, however, an elderly couple arrived and entered 14 Daystrom before the officers could stop them. Lemaitre, concerned that the three suspects were armed and dangerous, did not want any more persons to enter the home. Accordingly, he, Rand and Wauchope approached the house.

[25] Lemaitre was just about to knock on the side door, when a woman came out of her own accord. The officers took control of her and handed her off to another officer who took her down the driveway. With the door now open, Lemaitre announced their presence and ordered everyone to come out of the house. Lemaitre said that inside the door was a staircase that led to a basement apartment; he said he could see several people at the bottom of the stairs.

[26] In response to Lemaitre’s command, the accused came to the door and stepped out. Ordered to lie on the ground, he started to lower himself, but, instead of actually getting down, he fled. Several officers, including Rand, gave chase. After a short pursuit, he was captured several streets away. Caleb and a third man, Jafari Hunter, were arrested at the house.

[27] In the early morning of March 20, 2013, police officers executed a search warrant on 14 Daystrom. During their search, they found 92 of the cellular telephones taken in the robbery at 170 Rimrock the preceding day.[^7] Most were contained in what I find as a fact was the hockey bag the accused bought the day before at Sport Chek. Det. Richard Weller of the TPS Forensic Identification Service (“FIS”) recovered the remaining 10 phones taken in the robbery later that day, in the course of executing a search warrant on the VW. He also seized a Sport Chek receipt for the sale of one hockey bag bearing a date of March 19, 2013, and a time of 15:59.

EVIDENTIARY RULINGS

[28] Two pieces of evidence the Crown sought to adduce were strenuously resisted by the defence. Respecting one, in a brief oral pronouncement, I ruled that the Crown could adduce the proffered evidence, but indicated that I would provide further reasons as time permitted. Respecting the other, as I will explain, I reserved my ruling, not once but twice, pending further evidence bearing on the issue. Before giving my reasons for decision on the trial proper, I will, as indicated above, give my reasons on these two evidentiary issues.

(i) The Sport Chek Security Video

[29] The Crown sought to adduce a composite video recording from a number of closed circuit television (“CCTV”) cameras in the Sport Chek store at the Yorkdale Mall and from another camera showing the area immediately outside the store. Defence counsel argued that the Crown ought not to be permitted to do so because the prosecutor did not call anyone from the store to adequately authenticate the video. For the following reasons, I held that the video was sufficiently authenticated to warrant its admission.

[30] As for the location at which the video was recorded, Sinclair testified that he had been in that Sport Chek store on other occasions and could attest that what was displayed by the various CCTV clips was in fact the interior of that store and the environs immediately outside it.

[31] As for the date and time the recording was made, the video itself has a time/date legend. I recognize, of course, that, standing on its own, that information would be hearsay. I further recognize that such time/date stamps are often inaccurate.[^8] Based on the following evidence, however, I am confident that the time and date information on the Sport Chek video is correct:

(i) Sinclair saw the accused enter the mall at approximately 3:53 p.m., which is only shortly before the time (according to date/time information on the video) he is first seen in the Sport Chek;

(ii) Sinclair next saw the accused, coming from the direction of the store, at 4:01 p.m., carrying a bag that he had not had when he entered the mall;

(iii) as earlier noted, a receipt for the sale of a bag at 15:59 on March 19, 2013,[^9] was found in the VW when it was searched the next day;

(iv) the Sport Chek video shows the accused leaving the store at 4:00:56 p.m. with a bag in his hand that matches the bag Sinclair described and the bag later found full of cell phones in the basement of 14 Daystrom;

(v) as a result of his having detailed a subordinate to secure the CCTV from the Sport Chek store, Lemaitre received the video proffered for admission within a matter of a few days of the robbery.

[32] Counsel does not dispute Hollywood’s identification of his client in the photographs that officer took and does not dispute that the person depicted in the Sport Chek CCTV is his client. There is no suggestion by counsel that the video has been altered or tampered with. Given, then, the concordance between Sinclair’s observations and the times thereof, on the one hand, and the times on the Sport Chek video and the receipt, on the other (taken together with the fact that LeMaitre said he received the video in response to the specific request he made in connection with the robbery and within scant days of his having made the request), it is obvious to me that the video shows what it purports to show.

[33] A helpful précis of the law as it relates to the authentication of proffered photographic evidence can be found in R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, where, at para. 28, Trotter J. stated:

The leading Canadian case on authenticating images is R. v. Creemer and Cormier, 1967 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.S.C. App. Div.). McKinnon J.A. noted the following requirements for authentication at p. 22:

All the cases dealing with the admissibility of photographs go to show that such admissibility depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so.

This formulation has been widely accepted in many subsequent decisions and by numerous commentators: see, for example, R. v. Maloney (No. 2) (1976), 1976 1372 (ON SC), 29 C.C.C. (2d) 431 (Ont. Co. Ct.), R. v. Penney, supra, R. v. Schaffner (1988), 1988 7108 (NS CA), 44 C.C.C. (3d) 507 (N.S.C.A.), at pp. 509-511, R. v. J.S.C., 2013 ABCA 157, [2013] A.J. No. 455 (C.A.), R. v. Adams (2011), 2011 NSCA 54, 274 C.C.C. (3d) 502 (N.S.C.A.), Sydney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th edition (Toronto: LexisNexis, 2014), at pp. 44-45 and pp. 1294-1296, David Watt, Watt's Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88 and David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462.

[34] Earlier, at para. 25, Trotter J. observed that photographic evidence is neither presumptively inadmissible nor presumptively admissible; rather, it is “conditionally admissible”, i.e.: “[c]ertain pre-conditions must be ‘established’ on the basis of ‘some evidence’ before a photograph is admissible…” In the next paragraph, he went on to say:

This proposition is demonstrated in R. v. Nikolovski (1996), 1996 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.), in which the Court considered the admissibility of videotape evidence. Writing many years ago, Cory J. said the following at p. 416:

Once it is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but is to a certain extent, testimonial evidence as well …

[35] By way of authenticating an exhibit, the offer of proof need not consist of direct evidence; rather, a sufficient foundation for proffered photographic evidence can be established circumstantially: R. v. Wilder, [2002] B.C.J. No. 2110, 2002 BCSC 1333, at para. 288. In this case, Sinclair’s evidence that what one sees on the video is the inside of the Sport Chek store taken together with his evidence as to the date and times of his observations of the accused (in particular, his observation of the accused carrying a bag that appears to be identical to the bag that the video shows him purchasing in the store), provides not only a sufficient, but a compelling foundation authenticating the proposed video.

[36] There was no suggestion put to any of the officers who testified, and none raised in oral argument, that the video has been tampered with, or altered, or that it is in any way misleading.

[37] In the final analysis, then, being satisfied that the video is exactly what it purports to be, I admitted the proffered video clips.[^10]

(ii) Clothing Seized from the Accused

(a) Reopening the Crown’s Case

[38] During the course of the trial, the Crown sought to introduce through D/C Kerry Stewart a police property bag containing certain items said by the Crown to have been seized from the accused. These consist principally, though not exclusively, of articles of clothing he was allegedly wearing when he was arrested.

[39] When the items were first proffered through Stewart, defence counsel objected on the basis that no sufficient foundation had been laid concerning the continuity of the clothing. Although Mr. Martinez objected to any of the clothing being entered, it became apparent, in the course of argument on the matter, that the item to which he takes strongest objection is a pair of woolen gloves. Their importance from the prosecution’s standpoint is that, on the Bell security video, one of the robbers can be seen wearing gloves that bear a strong resemblance to them. That said, although in oral argument neither side alluded to the accused’s jeans, also seized from him at the police station, for reasons I will explain below they are also of significance.

[40] One of the officers who apprehended the accused was Police Constable (“P/C”) Jason Tanham, a uniform officer from 32 Division. Tanham testified that, as he would do with any arrested person, immediately after handcuffing the accused, he searched him. Among a number of items Tanham seized was what he described as “a pair of black gloves” that he found in the accused’s right rear pants’ pocket. As will shortly become evident, that description is of some moment on the question of admissibility. Tanham placed the things he seized from the accused in a police property bag. He then took the accused to his police car, where he gave him a second pat down search before lodging him in the backseat. During that second search, Tanham found a small bag of marijuana.

[41] Tanham then transported the accused to 32 Division. Once the accused had been booked into the station, Tanham, together with another officer, performed a strip search on the accused. Apart from a small scrap of paper, Tanham found nothing else in that third search.

[42] In his cross-examination of Tanham, Mr. Martinez played the booking video and paused it at a point at which Tanham can be seen taking things out of a property bag and placing them on the booking sergeant’s counter. Counsel suggested to him that what appears in the video as a small black mass was, in fact, the gloves. Tanham said he was not sure. Understanding that the arrest took place more than two years ago, and, further, that presenting a prisoner to the booking sergeant is, presumably, a somewhat routine event for Tanham, I can well understand why he would not be able to remember. That said, defence counsel suggests, and it seems reasonable to me to infer, that the black mass one can see on the counter is the gloves.

[43] D/C Stewart testified that, on the evening of March 19, Lemaitre detailed her to seize the accused’s clothing. However, since she is female and the accused male, her partner, D/C David Caccia, actually entered the interview room in which the accused was being held. He told the accused to take off his clothes so that they could be seized and gave him an orange jumpsuit into which he could change. He then left so the accused could change in private. A few moments later, he went back into the room and picked up the accused’s clothing, which, by that time, was lying in a heap on the floor. He left the room and immediately handed over the clothing to Stewart.

[44] Stewart took the items she received from Caccia and, along with certain other items she took from the property bin outside the interview room,[^11] and put everything into a police property bag bearing the number D462309. Included among the items in that bag, when it was presented to her in court, was another property bag bearing the number D462307. Stewart recognized the bag as the one she had seen that night, but could not remember whether she got it (462307) from Caccia or from the bin outside the interview room. It only makes sense, however, that she must have gotten the bag (462307) from the bin because, in my opinion, neither Tanham, nor any other officer, would have left a property bag in the interview room with the unattended accused.

[45] On Wednesday, June 10, 2013, at the time the clothing was initially proffered as an exhibit, defence counsel objected that, since Stewart had not seized the clothing directly from the accused, the Crown had not demonstrated continuity. Since Stewart indicated that she had gotten the clothing from Caccia, and since Caccia had not yet given evidence, I made the contents of the bag, D462309, a lettered exhibit, “A”.

[46] On Thursday, June 11, 2013, D/C Caccia testified. The sole purpose of his testimony was to establish continuity. Yet, during his testimony, Crown counsel did not move to have the lettered exhibit admitted. After his evidence was complete, I raised, on my own motion, the question of whether the lettered exhibit should become a full exhibit. At this juncture, defence counsel again objected, indicating that, since Tanham had seized the gloves and Tanham had not yet testified, he would prefer that argument on the matter be deferred until after Tanham had given his evidence.

[47] P/C Tanham gave his evidence later on Thursday, but, by the end of the sittings for the day, only his examination-in-chief had been completed. At no point during Tanham’s examination-in-chief did Crown counsel move to have the lettered exhibit become a full exhibit.

[48] Since the court did not sit on Friday, June 12[^12] Tanham’s cross-examination was deferred to Monday, June 15, 2013. On June 15, Tanham’s cross-examination was conducted and completed. At the conclusion of his evidence, once again, the Crown failed to move to have the lettered exhibit admitted into evidence. After calling some other evidence, the Crown then closed its case without having addressed the status of Exhibit “A”. When that occurred, I reminded Crown counsel that the admissibility of the proffered clothing had never been determined. In response, Crown counsel indicated that his failure to seek to move the clothing into evidence was the result of oversight on his part. I indicated that, since the Crown had formally rested, in order for the evidence to be admitted the Crown would first have to seek leave of the court to reopen its case. I then proceeded to hear argument. Mr. Martinez argued strenuously against the admission of the evidence on the issue of continuity, but made no submissions on the issue of whether it would be appropriate to permit the Crown to reopen its case. Having heard both sides, I reserved on the admissibility issue and proceeded to hear final arguments on the trial proper.

[49] The principles governing reopening of the Crown’s case were set out in R. v. M.B.P., 1994 125 (SCC), [1994] 1 S.C.R. 555, [1994] S.C.J. No. 27, where, speaking for the majority at para. 19 ff., Lamer C.J. held:

19 The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense -- that is, will be prejudiced in his or her defence. A trial judge's exercise of discretion to permit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice are served.

20 Traditionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused. That is, a court's discretion with respect to reopening will be exercised less readily as the trial proceeds. The point is illustrated by taking the following three stages in a trial:

(1) before the Crown closes its case,

(2) immediately after the Crown closes its case but before the defence elects whether or not to call evidence (most commonly, this is where the defence has moved for a directed verdict of acquittal for failure by the Crown to prove some essential ingredient of its case), and

(3) after the defence has started to answer the case against it by disclosing whether or not it will be calling evidence.

21 In the first phase, before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the recalled witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck.

22 Once the Crown actually closes its case and the second phase in the proceeding is reached, the trial judge's discretion to allow a reopening will narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences will heighten. The test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversight or inadvertent omission by the Crown in the presentation of its case, provided of course that justice requires it and there will be no prejudice to the defence.

[50] Lamer C.J. went on say, at para. 29, that, notwithstanding a trial has reached the stage where the Crown would normally not be permitted to reopen its case, reopening might nonetheless be permissible in a case in which the defence had somehow contributed to the Crown’s failure to adduce evidence necessary to its case:

29 Notwithstanding the importance which has historically attached to the stage reached in the trial proceeding and the fact that a court's discretion to permit the Crown's case to be reopened is highly restricted once the defence starts to answer the case against it, it is true that the strict ex improviso rule is no longer applied in Canada. However, the circumstances in which the Crown may be allowed to reopen at this stage are very narrow. The two most common examples are where:

(1) the conduct of the defence has either directly or indirectly contributed to the Crown's failure to adduce certain evidence before closing its case: R. v. Champagne, 1969 951 (BC CA), [1970] 2 C.C.C. 273 (B.C.C.A.); Crawford v. The Queen (1984), 1984 5667 (ON SC), 43 C.R. (3d) 80 (Ont. Co. Ct.); and

(2) the Crown's omission or mistake was over a non-controversial issue to do with purely formal procedural or technical matters, having nothing to do with the substance or merits of a case: Kissick v. The King, 1952 27 (SCC), [1952] 1 S.C.R. 343; Robillard, supra; Champagne, supra; R. v. Huluszkiw (1962), 1962 600 (ON CA), 37 C.R. 386 (Ont. C.A.); R. v. Assu (1981), 1981 356 (BC CA), 64 C.C.C. (2d) 94 (B.C.C.A.).

[51] In all the circumstances of this case, I am satisfied that the Crown fully intended to move to have Exhibit “A” made a full exhibit, but simply failed to do so by oversight. I am also satisfied that the accused never intended to call evidence, in any event. In my view, then, no prejudice to Mr. James will ensue from permitting the Crown to reopen its case

[52] On the other hand, if I am wrong in holding that this is an ordinary case, in which the Crown should be permitted to reopen as a matter of course, in my opinion it would fit, nevertheless, into that special category of case of which Lamer C.J. spoke. That is to say, by asking the court, not once but twice, to defer ruling on the question of the admissibility of the clothing, defence counsel contributed, albeit inadvertently, to the Crown’s oversight in this regard.

[53] In either case, I am of the view that the Crown should be permitted to reopen. Accordingly, I grant the motion to reopen.

(b) Continuity of the Proffered Evidence

[54] Having permitted the Crown to reopen it case, I turn now to the substance of the objection to the court receiving this evidence.

[55] To begin, it is well settled that, “[g]enerally, the continuity of an exhibit goes to weight, not to admissibility”: R. v. West, 2010 NSCA 16, at para. 130. In a similar vein, in Wilder, at para. 289, Romilly J. stated:

The failure of the Crown to prove continuity of the evidence potentially affects the authenticity of the evidence. However, providing there is some evidence of authenticity, issues of continuity go to the weight of the evidence, not its admissibility. Moreover, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown's case unless they raise a reasonable doubt about the exhibit's integrity. See R. v. Dawdy and Lamoureaux (1971), 1971 694 (ON CA), 4 C.C.C. (2d) 122 (Ont. C.A.); R. v. Oracheski (1979), 1979 ALTASCAD 140, 48 C.C.C. (2d) 217 (Alta. C.A.); R. v. DeGraaf (1981), 1981 343 (BC CA), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Taylor (1988), 1988 7797 (NB QB), 93 N.B.R. (2d) 246 (N.B.Q.B.).

I adopt those remarks.

[56] The video evidence clearly depicts that each robber wore gloves. A pair of woolen gloves was among the various possessions the Crown alleges were seized from the accused. As noted above, defence counsel objected to the introduction of the proffered gloves on the basis that the prosecution had not demonstrated continuity and, further, on all of the evidence there was reason to doubt that the proffered gloves were the same gloves that Tanham seized from the accused. For this proposition, he relies on what he says is a disparity between the gloves Tanham described having seized from the accused and the gloves the Crown seeks to put into evidence. In sum, counsel submits, the gloves are “an unidentified object of unknown origin.” I disagree.

[57] Tanham said he found “a pair of black gloves”, whereas, counsel points out that the gloves the Crown puts forward are black and grey. In fairness to the accused’s position, Stewart, for her part, described the gloves she seized as black and grey.[^13] The gloves the Crown proffers, while they are principally black in colour, have a pattern consisting of grey lines that encircle the palm and the back of the hand. Having said that, it strikes me that, albeit Tanham’s description can be said to be less than complete, to characterize the gloves he seized simply as black is not an unfair description of them given that they are predominantly black.[^14]

[58] Tanham said that, together with other property he seized from the accused, he put the gloves in a police property bag. He did not note the number of the bag and, at this temporal remove, could not remember it. However, as noted above, included in the property bag into which Stewart put the clothes, now proffered for admission, is another property bag, bearing the number 462307. Tanham’s name and badge number are written on that bag and Tanham identified his signature on the bag.

[59] Defence counsel makes much of the fact that the other persons arrested at 14 Daystrom Drive, Caleb and Jafari Hunter, were in custody in 32 Division and suggests that it is possible that the gloves were seized, not from the accused, but, rather, from either Caleb or Hunter. Based on the following evidence, however, I reject counsel’s hypothesis.

[60] D/C Stewart testified that, while Caleb and Hunter were being investigated, they were housed, at least so far as she was aware, in an area of 32 Division occupied by the Major Crime Unit (“MCU”), whereas the accused was housed in the Criminal Investigation Bureau (“CIB”), which is located in a different area of the station. Moreover, these two areas are reached by walking in different directions from the booking area, through which all prisoners must transit upon first entering the station. She denied the suggestion, put to her in cross-examination, that Hunter and Caleb were in the CIB area, and there is no other evidence to suggest that they were.

[61] For his part, D/C Caccia confirmed Stewart’s evidence, at least in relation to Caleb. He said he dealt with Caleb before he dealt with the accused and that his dealings with Caleb took place in the MCU.

[62] In summary on this issue, I find that there is a sufficient evidentiary basis upon which to reliably conclude that the items contained in the property bag (462309) originated with, and were seized from, the accused. Accordingly, my ruling, nunc pro tunc, is that the contents of Exhibit “A” will become a full trial exhibit, namely, Exhibit 29.

REASONS ON THE TRIAL PROPER

[63] The case is entirely circumstantial. Accordingly, I remind myself that, in order to convict, I must be satisfied beyond a reasonable doubt that the guilt of the accused is the only rational inference to be drawn from all the evidence I accept: R. v. Griffin, 2009 SCC 28; R. v. Bentley, [2015] B.C.J. No. 1158, 2015 BCCA 251. Furthermore, insofar as the defence advances a hypothesis consistent with innocence, I also remind myself that “[t]his is a high standard that requires that alternative explanations be excluded, because “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt (citations omitted)”: R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, at para. 68.

[64] To begin, the following assertions made by the Crown are not seriously disputed by the defence:

(i) that the accused was in the VW (BPBH 838) used by the robbers shortly before to the robbery;

(ii) that Mr. Whitten saw a number of men wearing balaclavas walking “with a sense of urgency” toward the same VW and correctly reported its make and licence number to the police;

(iii) a short time later, D/C Wauchope saw the VW pull into the driveway at 14 Daystrom Drive and saw three men get out of the car and saw one of them carry a large bag into the house;

(iv) the same bag was later discovered in the basement of the house and contained numerous of the stolen cellular telephones;

(v) that the bag found in the house was the same bag the accused bought at 15:59 that day in the Sport Chek store;

(vi) that Caleb, Hunter and the accused were in the basement of 14 Daystrom when the police approached the house and demanded that the occupants come out.

[65] Inasmuch, then, as the accused was with Caleb and Hunter both before and after the robbery, the questions I must decide are: (i) whether the Crown has proven beyond a reasonable doubt that the accused was with the robbers when they committed the robbery and (ii) if so, whether he participated in the robbery, as either a principal or a secondary party.

[66] I wish to first deal with an apparent conflict in the evidence of the Crown witnesses.

[67] On one hand, Santua and Schwamborn only saw two robbers. The video from inside the store confirms that only two robbers entered the store.

[68] On the other hand, Mr. Whitten says that he saw three men in balaclavas walking briskly along the side of the store, all of whom appeared to be holding things in their hands. Based on the video, I have concluded that he is mistaken in this regard. The video shows only two men in balaclavas approaching the store, only two robbers inside the store and only two robbers, after the robbery, moving quickly along the side of the building, but no third person. Moreover, whereas Whitten said each of the three men he saw was holding a number of things in his hands, the video shows only one of the two men holding things in his hands. The other robber visible on the video is carrying the hockey bag, but Mr. Whitten made no mention of seeing anyone carrying a bag.

[69] Notwithstanding the disparity between Whitten’s evidence and the video, there is no question in my mind that there were three men in the VW because MSS saw three men in it shortly before the robbery and Wauchope saw three men in it when it arrived at 14 Daystrom, shortly after the robbery. I find as a fact that one of those men was Caleb, who, just as he had been before the robbery, was still wearing his blue jacket when he got to 14 Daystrom. Because neither of the robbers was dressed the way Caleb was dressed and because Caleb rented the VW and had been driving it before the robbery, I infer that he was driving the vehicle throughout the entire time.

[70] It may be that Mr. Whitten thought he saw three men because there was a third man at the car. Whatever the cause of his mistake, it matters not, in any event, because the fact that Caleb rented the VW, when he had a vehicle of his own, was with the robbers both before and after the robbery, and appeared to be acting in concert with them throughout, convinces me beyond a reasonable doubt that there were three people involved in the robbery.[^15]

[71] Mr. Martinez does not take issue with the proposition that there were three men involved in the robbery, but, rather, contends that the third robber, and the third person in the car with Caleb and Hunter when it arrived at 14 Daystrom, was someone other than the accused. For that theory to be viable, there would have had to have been a fourth man. In determining whether there is a reasonable doubt on that score, I propose to examine the evidence in three stages, namely, what I will call the pre-robbery phase, the robbery itself and the post-robbery phase.

(i) The Pre-Robbery Phase

[72] For reasons earlier stated, I am satisfied beyond a reasonable doubt that the accused bought the bag in which the stolen phones were later found. Further, after buying it, he went back to the VW, rejoined Caleb and Hunter, and drove off in their company. Including tax, the bag cost $45.19; yet, when he was arrested, the accused had only slightly more than $5.00 on his person. Against that backdrop, it makes no sense to me that the accused would buy the bag that was used to carry away the loot from a robbery that happened no more than half an hour later, using what would appear to have been a substantial portion of the money he had to do so, yet part company with his two companions before the robbery took place, leaving them with the bag.

[73] As earlier noted, Santua said the robbery took place at approximately 4:15 p.m. Defence counsel argues that I should find that it took place at approximately 4:28 p.m. because, according to his submission, the time on the Bell video shows that it took place at 3:28 p.m.[^16] For this, counsel relies on what he said was Santua’s evidence that the time stamp was exactly one hour behind the actual time. I do not agree, however, that that was the gist of Santua’s evidence.

[74] Having listened to the evidence again, I note that Santua did not say that the video was off by one hour exactly, but, rather, “it’s like one hour, at least”. Then, with the video playing and the time stamp showing the time of 15:25, Crown counsel put a leading question to the witness, to wit: “So, this actually would be about 4:26?”, to which suggestion the witness responded in the affirmative. I am not convinced, however, that the robbery was as late as that because, in response to a question from the court, the witness said, “I know the fact that it’s one hour because it happens around four o’clock, past, after four o’clock.” He went on to say that he was “not aware about the delay of time of the camera.” I conclude, therefore, that his evidence amounts to nothing more than an estimate that he based on the fact that the robbery occurred as he was doing a particular shipping task that he always does about that time, namely, somewhere after four p.m.

[75] For his part, Schwamborn said that the incident happened around four o’clock, but, when pressed further, said it was about 4:15 or 4:20.

[76] As for Whitten, his evidence was unhelpful on this issue. The most he could say is that he saw what he saw somewhere between when he got off work, at 3:30 p.m., and 5:00 p.m.

[77] It would have been helpful to know exactly what time the robbery took place[^17] because the closer in time the robbery was to 4:05 p.m., when the accused was last seen in company with Caleb and Hunter, the more remote the possibility that they could have found a fourth man and enlisted him to participate in the robbery. Even giving the accused the benefit of the doubt, and putting the time of the robbery as late as approximately 4:25 p.m., when (with the time adjusted) the video shows the two robbers approaching the building, that still leaves only 20 minutes for Caleb and Hunter to drop off the accused, find a fourth man, and drive from somewhere nearby Yorkdale Mall to 170 Rimrock Rd. Defence counsel submits that the robbers could have readily done this because the locations are near to one another. I disagree.

[78] The only map in evidence[^18] was introduced with the cellular telephone records. It shows that the scene of the robbery is some distance north of Yorkdale Mall. March 19, 2013, was a Tuesday, so it would have been the beginning of rush hour and the video reveals that it was snowing,[^19] albeit lightly, at the time of the robbery. To my mind, both of those factors would have made driving slower than it would otherwise have been. In all the circumstances, it strikes me as extremely unlikely that Caleb and Hunter would have had enough time to drop off the accused and find a fourth man in time to get to Rimrock Rd. by 4:25 p.m. Moreover, although one cannot discern distances with any precision from the exhibit, the distance from Yorkdale to 170 Rimrock appears to be, more or less, about half the distance from Rimrock to Daystrom Drive. Insofar, then, as the VW was last seen by the police at 4:05 p.m. and next seen at 14 Daystrom at approximately 4:40 p.m., the greater distance between Rimrock and 14 Daystrom (than between Yorkdale and Rimrock) would, other things being equal, suggest a longer driving time from Rimrock to Daystrom than from Yorkdale to Rimrock. That, in turn, suggests to me that the robbery may well have occurred earlier than the time indicated on the video.[^20]

(ii) The Robbery

[79] I turn now to the robbery itself.

(a) Race of the Robber

[80] To begin, the accused is black. That is germane because Santua said that one of the men who robbed him was black. He knew this, he said, because, although the man wore a balaclava, he could see the skin surrounding the man’s eyes through the eye openings in the balaclava. Defence counsel cross-examined Santua vigorously on this point and asks the court to find that his evidence is unreliable.

[81] I need not deal in any detail with Santua’s evidence because it is not clear to me which of the two robbers he was referring to in this regard.[^21] That said, since:

(i) it is admitted[^22] that “[o]n October 24, 2013, Brandon Caleb and Jafari Hunter plead[ed] guilty to being parties to the March 19, 2013, robbery of the Bell Store at 170 Rimrock Road”;

(ii) both robbers that Santua saw wore balaclavas; and

(iii) Hunter and Caleb are both black;

even if I were to accept that Santua saw black skin through the eye holes of the robber’s mask, that conclusion would not serve to identify Mr. James, as distinct from Caleb or Hunter.

[82] I am prepared to consider Santua’s evidence on the issue of the race of the one robber only to the limited extent that nothing in his testimony would indicate that the robber was not black, and, thus, not Mr. James: R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373, 146 C.C.C. (3d) 52 (C.A.), at para. 17, citing Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474.

(b) Blue Underwear

[83] As the two robbers scooped telephones out of the safe, they were at times bent over. Capturing this activity from behind the robbers, the video[^23] clearly shows that one robber had red undershorts and one had blue undershorts.[^24] When Hunter, Caleb and James were investigated at 32 Division, later that day, it was discovered that Hunter had red underwear and both the accused and Caleb were wearing blue underwear.[^25] Having looked closely at the underwear in the video and the underwear seized from the accused, they appear to me to be the same shade of blue.

[84] I am satisfied for two reasons, that the blue robber was not Caleb:

(i) Caleb is seen in two photographs Hollywood took at approximately 3:30 p.m., wearing a blue outer jacket,[^26] whereas, in the video, the blue robber is wearing what appears to be a black or dark grey jacket; and

(ii) at the time of his arrest, Caleb was wearing bright blue athletic shoes with a slightly narrowed toe,[^27] whereas the video reveals[^28] that the blue robber was wearing what appear to be black shoes with a more rounded toe than Caleb’s shoes.

(c) Jackets

[85] With respect to the men’s outerwear, Wauchope said the three men who got out of the VW at 14 Daystrom, were wearing, respectively, a black jacket, a blue jacket, and a “black/grey hoodie”. The latter description aptly describes one of the hooded sweatshirts seized from 14 Daystrom.[^29] Understanding that Caleb was wearing a blue jacket when Hollywood photographed him at Lawrence Square Mall, I find as a fact that the man Wauchope saw wearing a blue jacket was Caleb. The other two appear to have been wearing jackets that, according to Wauchope’s description, resemble what the robbers can be seen wearing on the video and what was broadcast over the police radio in connection with the robbery.

[86] In this regard, the video is important. Camera 10 shows, for a period of about 40 seconds, the blue robber manhandling Mr. Santua. In doing so, he had his arms extended in front of his body. One can see on the blue robber’s left arm several bands of horizontal piping in a colour lighter than the rest of the garment. The hooded sweatshirt seized from the basement of 14 Daystrom has what, in my opinion, is identical piping.[^30]

(d) Gloves

[87] Since deciding to admit Exhibit 29, I have watched the video again numerous times in an effort to compare the gloves worn by the blue robber to the gloves seized from the accused. Camera 11,[^31] shows the blue robber wearing what appears to be a pair of black and grey gloves. I say “appears to be” because the robber’s hands are not always visible and, even when they are, his movements are rapid, making it hard to get a really clear view of his gloved hands. Thus, it is not possible, from looking at the Camera 11, to say to a certainty that they are the same gloves. Nonetheless, they do appear to be similar.[^32]

[88] Camera 10, however, affords a much longer and better look at the blue robber’s hands. During the same period of about 40 seconds,[^33] earlier mentioned in connection with the jacket, the blue robber’s hands are clearly visible. Although his movements are quick, one can see a grey pattern on the black gloves. It is still not possible to discern the precise pattern, so as to be able to say to a certainty that the pattern is the same as that found on the gloves Tanham seized from accused, but, in my opinion, the two pairs of gloves are, in the least, very similar.

(e) Jeans

[89] Wauchope described one of the three men he saw arriving at 14 Daystrom as wearing jeans that were, in his words, “very dark”. That is a fair description of the accused’s jeans; while they are blue, they are so dark as to appear, at a glance, to be black.

[90] The video[^34] shows the blue robber’s back and the left side, including the back of his jeans. I have examined the jeans seized from the accused[^35] and compared them to the blue robber’s jeans. As with my comparison of the gloves, comparing the blue robber’s jeans to the accused’s jeans was made difficult by the man’s quick movements. Nonetheless, I noted a pattern of stitching on the rear pockets. As was the case with the gloves, one can get a glimpse of the stitching on the blue robber’s jeans when viewing Camera 11, but a much longer and clearer view can be had by viewing Camera 10.

[91] I appreciate, of course, that a great many pairs of jeans, perhaps even the vast majority, typically have some sort of decorative stitching on the rear pockets, generally in a colour distinct from the colour of the denim. Often, such stitching runs horizontally across the pocket and, usually mid-way across the pocket, dips downward, coming to a point so as to form something resembling a chevron.

[92] Like most jeans, both the blue robber’s jeans and the accused’s jeans have a continuous band of stitching across both rear pockets. Having said that, what differentiates both pairs from most other jeans, in my opinion, is that, on each pair, the stitching drops to a point, not once but twice, first about one third of the way across each pocket and again, about two thirds of the way across. In my opinion, the stitching on the two pairs of jeans is identical. That said, obviously, there must be many pairs of such jeans in circulation, as it were. In effect, then (as I will discuss shortly in connection with the footprint impressions), even if the stitching pattern is identical, it is merely a class characteristic. From that fact, standing alone, it is, of course, impossible to say that the blue robber’s jeans and the accused’s jeans are one and the same garment. Nonetheless, considered in the context of the other similarities in their manner of dress and other factors connecting the accused to the robbery, in my opinion, the prospect that the accused and a robber (who was not the accused) were, within the space of a few hours, wearing jeans with identical stitching on the pockets, is very remote.

(f) Shoes

[93] The blue robber’s shoes can be seen in the video[^36] and in one of the still photographs extracted from it.[^37] The accused’s shoes can be seen in two photographs taken when he was in custody later on March 19, 2013.[^38] While admittedly there is no detail evident in either the video or the still extracted from it that would permit one to conclude that the blue robber’s shoes and the accused’s shoes are one and the same pair, they are similar to the limited extent that, in each case, they appear to be dark athletic shoes with rounded toes.

(g) Footprint Impressions

[94] Det. Smissen of FIS was qualified, on consent, as an expert in the analysis of footprint impressions. He testified concerning footprint impressions found at the scene of the robbery.

[95] Of the many impressions left in the snow outside the Bell store, only one was of any utility. Smissen testified that the impression[^39] was identical in terms of class characteristics to the accused’s right shoe and was the same size, namely, size 12.[^40]

[96] The defence did not challenge those assertions. Rather, counsel focused on Smissen’s acknowledgement in examination-in-chief that he could discern only class characteristics, i.e.: characteristics attributable to every shoe of a particular model made by that manufacturer, but no individual characteristics that would link the impression to the accused’s shoe, as distinct from any shoe of that class and size. He also asked the court to consider Smissen’s further concessions, in cross-examination, that that the model of Nike shoe worn by the accused is “fairly popular” and that size 12 is not uncommon in his experience.

[97] Given those factors, while standing alone the similarity between the impression and the accused’s shoe proves nothing, when “considered in the context of the rest of the evidence” (R. v. Portillo, 2003 5709 (ON CA), [2003] O.J. No. 3030, 176 C.C.C. (3d) 467, (C.A.), at para. 31), it is entitled to some weight, in my view.

(h) Summary

[98] Looked at in their totality, the foregoing comparisons of the blue robber’s clothing and footwear with the accused’s clothing and, to a lesser degree his footwear, suggest very strongly that the accused was the blue robber.

(iii) Post-Robbery Phase

(a) If not with Caleb and Hunter, how did the accused get to 14 Daystrom?

[99] The defence contends that there is a reasonable possibility on the evidence that the accused was not present at the robbery, but, rather, that he parted company with Caleb and Hunter before it took place and only came to be with them again, at 14 Daystrom, afterwards.

[100] In weighing that contention, I fail to understand how, without a vehicle, the accused could have managed, at the start of rush hour, to get himself from wherever he was when, supposedly, he parted company with Caleb and Hunter to 14 Daystrom in time to be there before Wauchope arrived at 4:36 p.m., which, on the defence theory, he must have done or, presumably, Wauchope would have seen him arrive. Although there is no direct evidence on the point, it is quite evident from the map[^41] that 14 Daystrom Drive is at least several miles north and west of Yorkdale Mall. While it is not impossible, perhaps, that the accused could have gotten there in that time frame, it strikes me as unlikely.

[101] If the accused did not arrive with Caleb and Hunter, then it seems to me that about the only way he could have gotten from a location that must have been somewhere near Yorkdale to Daystrom in time to be there before Wauchope arrived at approximately 4:40 p.m., would have been to take a taxi.[^42] The fare for such a ride would be substantial, it seems to me, at least for a man who, as earlier noted, had only had slightly in excess of $5.00 on him when he was arrested. Assuming, then, for the sake of this discussion, that he knew that Caleb would shortly return to 14 Daystrom, it simply makes no sense to me that the accused would spend virtually the last of his money to travel by taxi to a destination to which, presumably, he would have known he could have been driven for free by simply remaining with Caleb. On the other hand, if he did not know that Caleb would return to 14 Daystrom, there is no reason apparent to me why he would go there at all.[^43]

[102] The Crown contends, of course, that the accused did not part company with Caleb and Hunter; rather, it says that the accused was with Caleb and Hunter all the time, that he participated in the robbery, and that it was he who subsequently arrived with them at 14 Daystrom, as seen by Wauchope.

(b) If not the accused, who was in the VW when it got to 14 Daystrom?

[103] Mr. Martinez does not dispute that two of the three men Wauchope saw were Caleb and Hunter. He suggests, however, that there is a reasonable doubt whether the accused was the third man Wauchope saw arriving at 14 Daystrom. For this proposition, he relies on a number of arguments, each of which I will address, to convince the court that the third man in the VW was someone other than the accused.

[104] To begin this discussion, Mr. Martinez reminds the court that there were other people who were targets of the police investigation into earlier robberies, any one of whom might have been the third person in the VW. These include two other persons proposed as targets for the surveillance detail on that very day, namely, Colin Caleb and Matthew Beckford.

[105] Counsel is critical of the police investigation, which he says fell prey to tunnel vision in that no follow up was done on either Colin Caleb or Beckford to exclude them as having been involved. Mr. Martinez also mentions the fact that U/K #1 was not further investigated, despite having assisted Caleb to bring back the Toyota Solara from the Enterprise car rental agency.

[106] The term “tunnel vision” has been defined as a “single-minded and overly narrow focus on an investigative or prosecutorial theory so as to unreasonably colour the evaluation of information received and one's conduct in response to that information.”[^44] Tunnel vision occurs where an investigator becomes so focused upon an individual or incident that no other person or incident registers in the investigator’s thought process. Tunnel vision can result in “the elimination of other suspects who should be investigated. Equally, events which could lead to other suspects are eliminated from the officer's thinking.”[^45] An investigator can fairly be accused of tunnel vision where, having preconceived that a suspect is guilty of a crime, the investigator ignores viable alternative suspects or ignores information that would point to culpability on the part of someone other than the person the officer then suspects. But that presupposes, in my view, that there is, at the least, some reasonable indication that someone other than the present suspect(s) may be responsible for the crime under investigation.

[107] In this case, on the other hand, although other persons may have been involved in the earlier robberies the police were investigating, there was nothing to suggest anyone else had been involved in this particular robbery. The police had every reason to believe that three men had been involved in the robbery and they had those three men in custody. As for Colin Caleb and Beckford, neither was sighted by any of the MSS team that was conducting surveillance on Brandon Caleb on March 19, and there is nothing to suggest that either Colin Caleb or Beckford had any knowledge of, much less involvement in, the robbery. As for U/K #1, the mere fact that she helped Brandon Caleb, by driving his Toyota for him, does not raise a reasonable suspicion that she knew that he had rented the VW for a nefarious purpose. In my view, then, Mr. Martinez’s tunnel vision criticism is utterly without foundation.

[108] Mr. Martinez also argues that there is a reasonable doubt whether the accused was in the VW when it arrived at 14 Daystrom because Wauchope failed to identify the accused as one of the three men he saw, notwithstanding that he knew the accused from another investigation and recognized him some minutes later, when he came to the side door, just prior to the accused making his attempt to escape. For the following reasons, Wauchope’s failure to identify the accused does not raise a doubt in my mind that the accused was not one of the three men he saw.

[109] First, Wauchope was viewing the men in the VW from a distance. Moreover, initially, he said, in order to be unobtrusive, he was viewing them through his rear-view mirror.

[110] Second, when, a short time later, Wauchope got out of his car, the men were already moving toward the house. Given his position, he would not have been looking at them full-on, so to speak, but, rather, would have been looking at their right sides. Further, when Wauchope approached to get a better vantage point, his view was partly obstructed by a hedge.

[111] In support of his contention that the accused was not the third man in the car, defence counsel also relies on the telephone records for what has been admitted[^46] to be the accused’s telephone.[^47] The records show that the accused’s phone was used to make three telephone calls, commencing at 16:40:50, 16:42:58 and 16:44:10, respectively; in the aggregate, the calls lasted 75 seconds. This is important, counsel contends, because Wauchope stated in cross-examination that the men were outside 14 Daystrom until about 4:45 p.m., but he never saw anyone using a cellular telephone. Based on that evidence, the inference is available, counsel suggests, that Wauchope never saw anyone on the phone because the accused was already inside the house.

[112] That inference is buttressed, counsel argues, by the fact that, as the record reveal, each of the three calls was serviced by a different cell site (tower). For this proposition, Mr. Martinez relies on the evidence of a Crown witness, Robert Lebovic.[^48]

[113] Lebovic said that cellular telephone systems are designed in such a way that a telephone is serviced by the cellular tower with the strongest radio signal. Within a given area, the towers are set up so as to emit signals of roughly the same strength. What that means, most of the time, according to the witness, is that a call will be handled by the geographically closest tower, but, he added, there are numerous exceptions to this general assumption. One such exception, upon which counsel relies, is that, if one uses a cellular telephone inside a house, successive calls from the same location could be handled by different towers as a function of obstruction of the radio signal caused by the physical structure of the building and/or by electro-magnetic interference emanating from appliances or other electrical devices in the house.

[114] For the following reasons, measured against the rest of the evidence that I accept, the telephone records, whether considered on their own or in conjunction with other arguments raised by counsel, do not raise a reasonable doubt in my mind that the accused was not one of the three men that Wauchope saw arrive at 14 Daystrom.

[115] First, Lebovic said that being inside a building was not the only reason that, albeit a telephone is stationary, it might access more than one tower to make successive calls. Another explanation he offered was that the volume of other telephone traffic already utilizing a particular tower might render that tower incapable of accepting a call, even though, vis à vis the telephone seeking to access the system, its signal is the strongest.

[116] Second, for some period of time after they arrived at 14 Daystrom (long enough for Wauchope to take note of it), the three men remained in the car before they got out, such that it is possible that Wauchope was not in a position to see whether someone was on the phone or not.

[117] Third, for some period of time, when the men were outside the car, they were huddled by the trunk of the VW, such that Wauchope’s view might well have been obstructed.

[118] Fourth, as I understood his evidence, Wauchope did not purport to have noted these times with absolute precision, but, rather, only approximately and, inasmuch as he did not make his notes contemporaneously with the events, only from memory.

[119] Fifth, there is no evidence as to what it was that Wauchope relied upon to determine these times. Whether he used a watch or some other device, such as a cell phone, there is no evidence that his time source was synchronized with the time utilized by the Mobilicity computer that created the records now in exhibit.[^49] While it might seem picayune to split hairs, as it were, over the possibility of small discrepancies in time, it is important to remember that the three men were only outside for a matter of a few minutes between their arrival and the time they entered 14 Daystrom. Even a slight difference between whatever source Wauchope was using to tell time and the source Mobilicity was using could explain why he did not see anyone using a cell phone.

[120] Lastly, even if there were no uncertainty concerning the time, Wauchope was busy making telephone calls to summon backup, such that he might have missed some activity, even if he was in a position to observe it, or, if he observed it, he might have failed to note it and failed to remember it in the course of giving his evidence more than two years later.

(c) If it was not the accused, what became of the third man in the VW?

[121] The further problem for the accused in terms of raising a reasonable doubt that he was not in the VW with Caleb and Hunter, when they arrived at 14 Daystrom, is, at the risk of repetition, that there is no question that there were three persons in the car. So, if it was not the accused, who was the third man in the VW?

[122] Counsel suggests that the court can infer that the accused was not in the VW when it arrived at 14 Daystrom from the fact that no witness identified the man who Caleb and the accused picked up at Lawrence Square, who was designated as U/K #4, as Hunter. The argument is idle. It ignores the fact that the surveillance officers were not involved in Hunter’s arrest.[^50] It seems obvious to me that, since Hunter was not one of the original targets of the surveillance detail, such that the MSS officers had no way of knowing who he was at the time they first observed him, they would, in keeping with their practices, simply have designated him as an unknown. That said, to suggest, as counsel does, that U/K #4 and Hunter are not the same person is to posit that not only did the accused part company with Caleb and U/K #4, but, further, that U/K #4 also left Caleb’s company. But that would mean that, between 4:05, when Caleb, the accused, and U/K #4 are last seen together by the police, and the time of the robbery (which was, at most, twenty minutes later), in order to have three people involved in the robbery Caleb would have had to find not just one, but, indeed, two new people (one of whom would have had to have been Hunter), each of whom was prepared to participate in a robbery.

[123] Defence counsel also relies heavily for his assertion that the third man Wauchope saw was not the accused on the fact that no heavy winter jacket was found in the house consistent with what he says the robbers can be seen to be wearing in the video. I reject this submission. To my observation, neither of the jackets one sees in the video looks particularly heavy. Admittedly, the jacket worn by the red robber appears to be quilted, but, even so, it does not look particularly heavy relative to what one typically sees by way of winter outerwear.

[124] The evidence before the court shows that at least two jackets were found in the basement of 14 Daystrom, the black pullover hoodie[^51] and the hoodie with the piping on the sleeves.[^52] Obviously, however, there must have been at least one other jacket in the basement, namely, the blue jacket that Caleb is seen to be wearing earlier in the day and that he was still wearing when he arrived at 14 Daystrom Drive in the VW. There were three men in the basement and three jackets. It must be remembered that when the accused fled he did so clad only in a shirt.

[125] In fairness to Mr. Martinez’s argument on this point, it must be noted that the quilted jacket the red robber wore was not recovered. One obvious explanation is that it might have been discarded before the robbers arrived at 14 Daystrom. When that possibility was discussed in the course of oral argument, Mr. Martinez rejected it out of hand, arguing that the robbers would not likely have discarded any garments because they held on to other things that incriminated them. Be that as it may, it is not unreasonable, in my view, to suppose that the robbers discarded one or more things used in the robbery; for example, the video clearly shows that each robber wore a balaclava, but only one balaclava was recovered.

[126] As earlier noted, to postulate that the third man in the VW was not the accused begs the question of how Caleb and Hunter would have had time to drop off the accused somewhere and then find and enlist another confederate to do the robbery. It also begs a further question, namely, if the supposed other man arrived with Caleb and Hunter at 14 Daystrom, where was he when the police searched the house?

[127] There were numerous people in 14 Daystrom when the police took control of the premises, but none of the persons who were extracted from the house could have been the third man in the car. Lemaitre said that, once he arrived at 14 Daystrom, with the help of other officers, he secured the scene. Once the ETF arrived, Lemaitre said they “cleared” the house, by which I understood him to mean that they methodically searched the house to ensure that all occupants were removed. Defence counsel does not quarrel with either the proposition that three men arrived in the VW or the proposition that no one was left in the house once the ETF had cleared it. Rather, he seeks to explain the absence of this fourth man[^53] by suggesting that he must have escaped from the rear of the house before the police had full control of the situation or during some interval after the police arrived when no officer was watching the back yard.

[128] Counsel argues that the fourth man could have come to know of the presence of the police because Lemaitre was outside armed with “a machine gun”, [^54] and the elderly couple who entered the house just before the police approached would have noticed Lemaitre, including the fact that he was heavily armed, and could have communicated that fact to the people inside. With that knowledge, counsel suggests, the fourth man might well have fled.

[129] The argument is without merit. There is no evidence to support the contention that the elderly couple noticed Lemaitre at all or, if they did, that they noticed he was armed. Further, there is no evidence that the elderly couple communicated with any of the men who had arrived shortly before. Since the couple entered by the front door, whereas the three men had entered by the side door, which leads to a basement suite, the evidence, on its face, suggests they did not communicate with the men in the basement. That inference is supported, in my view, by the fact that, as Lemaitre approached the house, a woman exited from the side door. Although she was quickly approached by the police and hustled away, the clear sense I got from Lemaitre’s evidence was that, until she came out of the house, she had been unaware of the police presence.

[130] Turning next to the suggestion that somebody fled the premises, there are four windows on the rear of 14 Daystrom, two on the main floor and two in the basement; there are no doors.

[131] As for the likelihood that the fourth man escaped via a main floor window, the evidence puts Caleb, Hunter and the accused in the basement. As earlier noted, it would appear that the basement is set up as an apartment, separate from the main floor accommodation. There is no evidence that there is direct interior access between the main floor and the basement, but there may well be. Even assuming there is, however, though certainly not beyond the realm of possibility, it strikes me as unlikely that someone in the basement apartment would see fit to access a separate living space on the main floor in order to make his escape from a rear window on that level.

[132] As for the basement windows, they are very small and only slide open halfway, such that it strikes me that they would be difficult to climb out of.

[133] D/C Richard Rand was one of the HUS officers who accompanied Lemaitre when he first approached the house. Lemaitre went to the side door, but Rand went further up the driveway to the south east corner of the house, where he could watch the backyard. By this time, according to Rand, there were lots of police officers on scene.

[134] Rand said he saw a man’s face at one of the basement windows. He said the man’s face was pushed up against the screen on the window and he looked panicked. He told the man that he was the police and directed him to move away from the window. The fact that there were screens on the windows makes it even less likely, to my mind, that someone would have used one of those windows as a means of egress.

[135] The fact that Rand saw a man at the window who appeared to be panicked also tends, somewhat at least, to refute Mr. Martinez’s suggestion that the occupants were aware of the police presence before the police approached, such that someone might have escaped before the police positioned themselves so as to be able to observe the backyard. If the occupants had known before the police approached, as counsel suggests, and if escape by that route was as easy as counsel would have the court accept, it begs the question why at least two of the perpetrators, Caleb and Hunter, were still in the house.

[136] Likewise, if the accused knew that the police were outside, as counsel suggests was likely the case, one has to ask oneself why he would wait until the police actually approached the house and demanded the occupants come out and surrender themselves before he chose to flee. Furthermore, if escape via a rear window and, in turn, the backyard, was as easy as Mr. Martinez suggests, and if the backyard was unguarded at least part of the time the police were present, one also has to ask why, instead of taking this easy, unguarded route, the accused chose to leave by a door at which armed police were stationed waiting to take people into custody.

[137] When a man, who, as it happens, was the accused, appeared at the side door, Rand went to assist Lemaitre. From that point forward, he acknowledged that he could no longer see the windows on the rear of the house. When the accused fled, Rand chased him.

[138] Lemaitre testified that, after Rand took off after the accused, there was still an officer in the back yard. It was suggested to Lemaitre that he could not be sure of that because his focus was on the stairwell inside the side door. While he acknowledged that his principal focus was on activity in the house, he said that he remembered an officer being in the backyard both before and after the accused fled, rejecting the suggestion that only Rand had been in the backyard.

[139] Det. Michael Brammall, a 32 Division officer, was also at 14 Daystrom, as a result of Lemaitre having asking the local division for additional help to contain the scene.

[140] Brammall said that, almost immediately after his arrival, he and his partner went to a position on Daystrom where the street runs east/west, as opposed to north/south, as it does in front number of 14. From that position, he could see the backyard of 14 Daystrom by looking between two houses. He said he realized that the backyard might be a viable means of escape for someone in the house. Accordingly, to prevent possible escape, he and his partner moved to an adjacent street, Lindy Lou Rd., and took up a position where they could, once again, see the backyard of 14 Daystrom, but from which they could better intercept anyone who might attempt to escape. He could not see the backyard during the time he was repositioning himself.

[141] Mr. Martinez made much in oral argument of the fact that Brammall appreciated that the backyard might be a viable escape route. However, the mere fact that Brammall recognized the possibility of escape, does not, without more, impart an air of reality to the prospect that someone actually did escape by that means.

[142] When they saw the accused flee, Brammall and his partner ran back in the direction of their first position, but, quickly realizing that they were too late to have any chance of intercepting the accused, they immediately returned to their second position on Lindy Lou Rd. Brammall said he and his partner were gone from that position approximately 45 seconds.

[143] Brammall said that, during the time he was watching 14 Daystrom, no one attempted to leave via the backyard. The only person he saw run from the house was the accused. He also testified that he went into the backyard of 14 Daystrom after the house had eventually been cleared by the ETF. He said he saw nothing noteworthy at the rear of the premises and, in particular, said he did not remember any windows being open.

[144] Mr. Martinez spent a great deal of time closely examining the witnesses, trying to expose gaps in the police observation of the backyard. There were many officers present at what was a dynamic scene involving potentially armed and dangerous suspects. It is, therefore, not surprising to me, that no one can say to a certainty exactly what each officer was doing and when. Thus, the possibility exists that someone might have left via the backyard unnoticed. It is equally clear, on the other hand, that several officers from whom the court heard made a concerted effort to guard against just such an escape attempt as postulated by the defence. In the face of that evidence, the mere contention that such an escape could have happened does not raise a reasonable doubt in my mind that it did. In sum, I find no air of reality to the suggestion.

(d) After-the-fact conduct - flight

[145] It is not disputed that the accused attempted to flee. However, relying on R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, Mr. Martinez submits that no negative inference can be drawn from the accused’s flight, because there is another plausible explanation, namely, that he fled because he was the subject of an arrest warrant. For the following reasons, I conclude that counsel’s reliance on Arcangioli is misplaced.

[146] Although two officers testified that they were aware of the existence of a warrant for arrest of the accused, neither was asked how he knew that to be the case or whether he had ever actually seen the warrant. Thus, strictly speaking, the evidence concerning the existence of the warrant is hearsay. Assuming, however, the officers’ information to be reliable and trustworthy I am, for purposes of this discussion, prepared to ignore that.

[147] There is, however, no evidence that the accused knew of the existence of the warrant. Neither officer was asked either what the warrant was for or by what means it came to be issued. I mention that because if, on the one hand, it were a bench warrant, then, presumably, one could safely infer that anyone with a passing awareness of the criminal justice system, who had failed to appear for court, would know that a warrant would have issued for his arrest. I note, parenthetically, that there is no evidence before me of the extent, if any, to which the accused has been involved in the criminal justice system.[^55] If, on the other hand, it were a warrant in the first instance, the accused might very well be entirely unaware of its existence, in which case, fear of being arrested on the outstanding warrant would not explain his flight. In this case, there is simply no evidence whether the accused knew of the existence of the warrant or not.

[148] The seminal case on after-the-fact conduct is R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, where, at para. 22, Rothstein J., speaking for the majority, held:

The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may [page450] be highly incriminating, while in others it might play only a minor corroborative role” (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantial evidence. Thus, while the term “consciousness of guilt” may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged - provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated.

[149] At para. 37, Rothstein J. went on to say:

Arcangioli, and its successor case White (1998), stand for the proposition that a “no probative value” instruction will be required when the accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences (White (1998), at para. 28; Arcangioli, at pp. 145 and 147).

Since, as noted above, there is no evidence that the accused knew of the existence of a warrant for his arrest, his post-offence conduct is not “‘equally explained by’ or ‘equally consistent with’ two or more offences”. That said, as with any other circumstantial evidence, the relevance or probative value of the accused’s flight must be weighed against the factual matrix of this case: White, at para. 38. Having considered the accused’s flight along with the rest of the facts as I find them, I have concluded, “as a matter of logic and human experience” (White (2011), at para. 47), that it supports an inference that he did so because he knew he had just robbed the Bell store.

RESULT

[150] None of the aforementioned pieces of evidence is conclusive of guilt in itself. Indeed, standing alone, some prove nothing. At the risk of stating the obvious, however, in a criminal trial no single piece of evidence is required to bear the entire burden of proving the prosecution’s case. Rather, it is the cumulative effect of all the evidence that I must consider: R. v. Uhrig, 2012 ONCA 470, at para. 13, citing R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. With that in mind, I must consider the combined effect of:

(i) the fact that the accused was with the Caleb and Hunter very shortly before the robbery;

(ii) the fact that, during the time he was with them, he bought a bag in which the lion’s share of the stolen goods was found scant minutes after the robbery;

(iii) the similarity between the jeans, the underwear, the gloves and the footwear the blue robber and the accused wore within the space of less than one hour;

(iv) the similarity between the hooded garment worn by the blue robber and the hoodie found in the basement of 14 Daystrom;

(v) the presence at the robbery scene of a footprint impression that, despite having no individual characteristics that would link it to the accused’s shoe, was made by the same type and size of shoe as the accused was wearing;

(vi) the fact that the accused was in 14 Daystrom with Caleb and Hunter shortly after the robbery (taken together with the implausibility of the notion that he could have gotten there within the time available time by any means other than with Caleb and Hunter); and

(vii) the fact that the accused attempted to flee (taken together with the fact that there is no evidence of any reason, other from an awareness of having participated in the robbery, why he would have fled).

The odds against this constellation of facts occurring together randomly and innocently (i.e.: without the accused having been a participant in the robbery), are, in my view, nothing short of astronomical.

[151] Although I appreciate that all the accused need do is raise a doubt, it is trite to observe that it cannot be an imaginary or frivolous one; rather, it must be a reasonable doubt. As I have endeavoured to explain, nothing in the theory advanced by the defence has a sufficient air of reality to raise a reasonable doubt. On the contrary, the suggestion that the third person involved in the robbery, and later seen by Wauchope arriving at 14 Daystrom in company with Caleb and Hunter, was someone other than the accused, and, further, that this fourth person then escaped from 14 Daystrom Drive undetected, is nothing short of fanciful.

[152] Having carefully weighed all the evidence, I am satisfied beyond a reasonable doubt that the only rational conclusion is that the accused was one of the two men who entered the Bell store and robbed Mr. Santua and Mr. Schwamborn, namely, he is the person I have referred to as the blue robber. In the result, as I indicated orally on June 19, 2013, I find the accused guilty on all three counts on the indictment.

R. A. Clark J.

Released: July 10, 2015

[^1]: MSS, as its name suggests, is a support group. It does not do its own investigations; rather, it conducts surveillance for other units of the TPS. [^2]: In this regard, the police had two other targets upon whom they intended to conduct surveillance on March 19, 2013: Colin Caleb and Matthew Beckford. [^3]: This woman was designated for purposes of the ongoing surveillance as “U/K #1”. Her actual identity was never established in evidence, but is of no moment in relation to proving the offences charged. [^4]: Exhibits 9(c), (d), and (e). [^5]: For the sake of clarity, I note that no evidence was led concerning the police having designated anyone as U/K #3. I infer that that designation was likely given to someone observed in connection with other surveillance that was being conducted that day in connection with two additional HUS targets, namely, Colin Caleb and Matthew Beckford. [^6]: On consent, pursuant to section 714.1 of the Criminal Code, Whitten testified by video link from Alberta. [^7]: Although the search warrant was not executed until the next day, the hockey bag was located and seen to contain cellular telephones within minutes of the police entering the house on March 19. [^8]: Indeed, in this very trial, the time shown on the video from the Bell store is acknowledged by all concerned to be something on the order of an hour slow. [^9]: Exhibit 23(d). [^10]: Exhibits 17 (a) and (b). [^11]: Kerry explained that outside each interview room in the Criminal Investigation Bureau there is a bin. The bin is meant to be a repository for any property belonging to a suspect who is being held in that room. Each bin has an accompanying board on which the prisoner’s name is written. [^12]: Because a Crown witness was unavailable. [^13]: Lest there be any confusion in this context, I hasten to add that it does not follow from the fact that I have earlier described what Tanham placed on the booking sergeant’s desk as “a black mass” that the gloves (if, indeed, the black mass is the gloves) are different gloves than the black and grey gloves that Stewart later seized. The mass, as depicted on the video, is so small and nondescript that, if it is the gloves Tanham seized, it is impossible to say whether they are entirely black or black and grey. [^14]: By way of comparison, I note that the hooded sweatshirt depicted in one of the photographs, now Exhibit 18 (k), was described by D/C Rhonda Haley, the FIS officer through whom the photograph was introduced, simply as “black”. In cross-examination, defence counsel had no quarrel with that description. In a similar vein, Wauchope testified to having found what he described as “two black hoodies” in the basement of 14 Daystrom. Clearly, it seems to me, one of the garments he was speaking of is the garment depicted in Exhibit 18(k). In cross-examination, Mr. Martinez took no issue with Wauchope’s description. Yet, when one looks at the photograph, it is abundantly clear that the garment has what I would describe as horizontal grey piping at intervals on the sleeves and a single line of piping running vertically on each side of the front. I mention this other garment (Exhibit 18(k)) in the context of the gloves only to illustrate that it is quite common for people to describe an object by reference to its principal features, while at the same time omitting to mention one or more less prominent characteristics. Accordingly, the fact that Tanham described the gloves as black does not, without more, suggest to me that he was describing a different pair of gloves than the ones Stewart later seized and which the Crown presently offers for admission. [^15]: I note as well, of course, that there is an admission before this court, that Caleb pleaded guilty to a charge of robbery arising from this incident. Strictly construed, the admission that Caleb pleaded guilty to robbery is not proof of the fact that he actually took part in the robbery. Rather, to be useful in this context, the admission ought to have been that Caleb actually took part in the robbery, as opposed to simply having pleaded guilty to a charge arising from it. Having said that, I think the parties thought that the admission would serve to prove, in this proceeding, the fact that Caleb actually took part in the robbery of the Bell store. More specifically, as I understand Mr. Martinez’s position, the accused does not dispute the proposition that Caleb was a party to the robbery. [^16]: Leaving aside the need to adjust the time, counsel is mistaken about when the robbery occurred, as noted on the video. Exhibit 3, Camera #7, covers one side of the building in which the Bell store is located, shows the two robbers approaching the building at 15:25:55 (as displayed on the video) and Camera 10 shows the actual robbery actually in progress by 15:26:23, when the two robbers approach Mr. Santua and proceed into the room containing the safe. Thus, according to the video, the robbers were embarking upon the robbery nearly three minutes ahead of the time counsel mentioned in his submissions. [^17]: This would have been readily ascertainable had the Crown simply proven when Mr. Whitten’s call was received by the 911 operator. [^18]: Exhibit 24(b). [^19]: Exhibit 3, Camera 13. [^20]: Adjusted by one hour. [^21]: It is probably the robber that I have determined was the accused, because the video makes clear that that robber had much more interaction with Santua than the other, but I cannot be sure. [^22]: Exhibit 28, para. 4. [^23]: Exhibit 3: Camera 11. [^24]: Given the similarity in the way the two robbers were dressed, there is little else beyond their underwear to differentiate one from the other. Accordingly, for ease of reference, I will refer to them from this point forward as “the red robber” and “the blue robber”. [^25]: Mr. James’ undershorts are now Exhibit 20. [^26]: Exhibits 9(a) and (b). [^27]: See the photographs of Caleb’s shoes, now Exhibits 7(a) and (b). [^28]: Exhibit 3: Camera 11. [^29]: A photograph of which is now Exhibit 18(k). [^30]: Exhibit 18(k). It is important, however, to examine the video closely. On first viewing the video, the blue robber’s hooded outer garment appears to be different than Exhibit 18(k) by virtue of the fact that the horizontal piping on the sleeves does not go as high up the sleeves as the piping on Exhibit 18(k) and because, instead of there being vertical piping, such as is present on the front of Exhibit 18(k), there is what appears to be some sort of design. Having watched the video several times, however, it is apparent to me that the blue robber wore a T-shirt over top of the hoodie, thereby partially obscuring the horizontal piping, (i.e.: on the upper arms of the garment) and completely obscuring the vertical piping on the body of the garment. [^31]: When viewing Exhibit 3, there is a period of time between what is denoted on the video as 15:26:25 to 15:27:03 where Camera 10 shows the robbers entering the store. [^32]: Exhibit 3 also includes a file (Stills of #7 – 170 Rimrock) of certain still photographs extracted from the video. In two of them, 201301319_13.jpg and 201301319_15.jpg, the blue robber’s gloves are visible. [^33]: Denoted on the video as 15:26:25 to 15:27:03. [^34]: Exhibit 3, on both Camera 11 and on Camera 10, between approximately 15:26:25 and 15:27:03. [^35]: The accused’s American Eagle brand jeans are one of the items now comprising Exhibit 29. [^36]: Exhibit 3. [^37]: Exhibit 3, Stills of #7 – 170 Rimrock, 20130319_7.jpg. [^38]: Exhibit 8(a) and (c). [^39]: Smissen’s “F2”, a photograph of which is now Exhibit 5(b). [^40]: A photograph of the soles of the accused’s shoes is now Exhibit 8(d). [^41]: Exhibit 24(b). [^42]: Counsel did not suggest that Caleb drove him to 14 Daystrom Drive before the robbery and I find as a fact that there would not have been sufficient time for Caleb to have done so and still have gotten to Rimrock Rd in time to commit the robbery. [^43]: Wauchope said that he went to 14 Daystrom Drive because it was an address associated with the investigation he and other members of the HUS were conducting. He said, at another point, that he knew the accused from “another investigation.” That the accused was not a suspect in the HUS investigation is also made clear from the evidence of D/C Hollywood to the effect that the accused was not one of the listed targets of surveillance that day. Therefore, although there is no direct evidence as to where the accused lived, since he was not one of the suspects in the ongoing HUS investigation, but the address of 14 Daystrom Drive was connected to it, I deduce that the accused did not live at that address. [^44]: The Commission on Proceedings Involving Guy Paul Morin (Toronto: Queens Printer, 1998), Recommendation #74. [^45]: The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Manitoba: Manitoba Queen's Printer, 2001), at p. 37. [^46]: Exhibit 28, para. 1. [^47]: Telephone records for the accused’s telephone, Exhibit 24(a), were admitted, on consent, as business records. [^48]: Mr. Lebovic is the Manager of the Lawful Access Group of Mobilicity, the service provider for the accused’s cellular telephone. He testified on consent concerning certain facts surrounding the manner in which cellular telephone systems operate. In keeping with the holding in R. v. Hamilton, [2011] O.J. No. 6301 he was not qualified as an expert, but, rather, relying on his experience in the industry, simply stated as fact his understanding of these matters. [^49]: In this regard, I note that the records were admitted for the truth of their contents, but there was no admission that the information they contained was factually correct. [^50]: Hollywood and Sinclair went to 14 Daystrom Drive and were involved in the pursuit of the accused, but, as I understand their evidence, neither officer had any involvement with Hunter. [^51]: Photographs of which are now Exhibits 18(i) and (j) [^52]: A photograph of which is now Exhibit 18(k). [^53]: I.e.: a man in addition to Caleb, Hunter and the accused. [^54]: Mr. Martinez made much of the fact that Lemaitre said he was armed with “a machine gun”, suggesting that it must have been a large, obtrusive weapon that would have surely been noticed by the elderly couple. But, as I indicated during the course of oral argument, the weapon Lemaitre described as a machine gun would, it seems to me, be more correctly described as a submachine gun, many of which are quite compact. [^55]: I am mindful that Wauchope testified that he knew the accused from another investigation, but, quite properly, the officer said nothing about the outcome of that other investigation as it related to the accused. It does not follow, then, from the mere fact that he may have been the subject of an investigation that the accused knew that he was being investigated; nor, by extension, does it follow that he has any familiarity with the criminal justice system.