CITATION: R. v. McMillan, 2015 ONSC 4141
COURT FILE NO.: 14-3000455-0000
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM McMILLAN
Leslie Zamojc, for the Crown
Richard Elbrit, for Mr. McMillan
HEARD: June 22-25, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] On April 14, 2013 a man pulled a knife on three women at a bus stop in Scarborough. He demanded their purses. Two of the women lived in a nearby apartment building. One of them said that she knew the robber as he also lived in the building. She says that she knew him as the occupant of a bachelor apartment. The robber, the women all agreed, was wearing a hoody, jeans, and a jacket. They differed on some of the other details identifying the robber. Security camera footage from the building shows a man matching the description of the robber running into the back of the building and entering the bachelor apartment.
[2] The person occupying the bachelor apartment was Adam McMillan, the accused before the court. The police later seized sunglasses, a hoody, and a knife from the bachelor apartment. Those sized items matched the descriptions given by the victims. Was Mr. McMillan the robber? In my view he was, and for the reasons that follow I find him guilty of all counts.
FACTS:
[3] On April 14, 2013 Frances Slade, Florence Baldwin, Shantel Lawrence, and Ivan Lawrence were at the bus stop on Midland Avenue in front of 2550 Kingston Road. The bus stop is near the corner of Midland Avenue and Kingston Road. At that corner Kingston Road runs in a southwest-northeast direction and Midland Avenue runs in a north-south direction.
[4] The buildings at 2550 and 2560 Kingston Road are on the same property. They are large apartment buildings. There is a long driveway that leads from the area of the bus stop on Midland Avenue to the back door of 2560 Kingston Road. Ms. Slade, Ms. Baldwin, and Mr. Lawrence lived in an apartment in 2560 Kingston Road. Ivan Lawrence is Shantel Lawrence’s father.
[5] When the four of them went to the bus stop, a man was sitting in the shelter. He appeared nervous and fidgety. Mr. Lawrence walked down the street to Park Street to look for the bus. After Mr. Lawrence left the man in the shelter pulled out a knife. He said “no-one’s gonna get hurt, just give me your purse, c’mon ladies”. Ms. Slade and Ms. Lawrence started screaming for help. The screaming attracted the attention of a man across the street. The robber then turned and ran in the direction of 2560 Kingston Road. The man across the street, Robert Cyr, ran across Midland Avenue to chase the robber. Ivan Lawrence, summoned by his daughter Shantel, also ran back to chase the robber. Neither man found him.
[6] Florence Baldwin says that she knew the robber as the man who lived in the bachelor apartment in the ground floor of 2560 Kingston Road. Although it is a large building, there is only one bachelor apartment and it is on the ground floor. Surveillance footage from security cameras shows an individual running across the parking lot behind 2560 Kingston Road, entering the building using a key fob, and then entering the bachelor apartment. Mr. McMillan lived in the bachelor apartment at the time. He was the sole tenant.
ANALYSIS:
[7] Identification is the sole issue in this case. Identification evidence is inherently unreliable. Identification evidence must be approached with caution in order to prevent miscarriages of justice: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Quercia, (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380, [1990] O.J. No. 2063 (C.A.). This case, however, is not strictly an eyewitness identification case because Ms. Baldwin, one of the three victims, testified that she knew the robber from previous interactions. She said that he was the man who lived in the bachelor apartment in their building.
[8] Ms. Baldwin stated that when she got to the bus shelter she recognized the man sitting there as Adam. She identified Mr. McMillan as Adam in Court. She had met Adam. Adam lived in the bachelor apartment in the building. There was only one bachelor apartment at 2560 Kingston Road. They had chatted a few times, although the chats were not what she described as “big chats”. These chats were always in the lobby. Once she was putting up Christmas decorations in the lobby and he said “great job”. Later in her testimony she said she wasn’t sure if the chats were at Christmas, since that chats were within the previous six weeks. In cross-examination she said the chats might have been at Easter – which made more sense, since Mr. McMillan moved in to the building in February, 2013. Given Ms. Baldwin’s familiarity with Mr. McMillan, I can give her in-dock identification some weight, although not a great deal of weight. I give her identification of Mr. McMillan as the robber from having known him a significant amount of weight.
[9] Ms. Slade also testified that she recognized the man in the bus shelter, although she called him Robert. She later corrected herself when her memory was refreshed with the preliminary inquiry testimony and said that his name was Adam. She also said that he was the man who lived in the bachelor apartment. Under cross-examination, however, it became apparent that she did not recognize the robber as the man who lived in the apartment. She agreed with the suggestion that she did not recognize him as he was disguised. It also became apparent that she identified the tenant of the bachelor apartment as the robber based on hearsay information from others. I can give her evidence that she knew the robber no weight. Ms. Lawrence did not know him prior to the robbery.
[10] All three women provided similar descriptions of the robber and his clothing. Ms. Baldwin said he wore a dark knee-length trench coat, a hoodie, blue jeans, and unique running shoes. She said that he was white and had reddish hair and a moustache. She described him as shaggy-looking. In cross-examination she said the hoody had a tan colour and a blue colour. Ms. Slade said that he was wearing a light black ¾ length parka, a grey hoody, a baseball cap, hair pulled back, blue jeans, and sunglasses. He had a light beard growth and a bit of a moustache. Ms. Lawrence said he was white with reddish hair and a moustache. He was wearing a hoody with tan and grey stripes, a blue trench coat, blue jeans, and grey sunglasses with black lenses.
[11] Security camera footage shows a man in a hoody running through the parking lot behind 2560 Kingston Road. He runs up to the back door of the complex, and then opens the door with a key fob at 1:17:48 pm. A camera placed right near the door captures a reasonably clear image of the man, although it is not clear enough to positively identify Mr. McMillan as the robber on its own. He is wearing sunglasses, a hoody, and a toque. He has a moustache. He is wearing a black ¾ length jacket. The hoody has stripes that appear to be tan. He is running with one hand in his pocket. Mr. Cyr testified that the person he was chasing had one hand in his pocket. Both Mr. Cyr and Mr. Lawrence testified that the man they chased ran in the direction of 2560 Kingston Road, although they did not see him enter. The video shows two men running down the driveway shortly after the man in the hoody entered the back of 2506. I have no difficulty in finding that these two men were Mr. Cyr and Mr. Lawrence. Interior cameras show the man in the hoody walking into the lobby seconds later. A shiny and distinctive metal piece on his sunglasses is visible. The police seized similar sunglasses from the bachelor apartment. They also seized a tan-and-black hooded shirt from the bachelor apartment, as well as a steak knife.
[12] Shantel Lawrence identified the seized sunglasses and hooded shirt as those worn by the robber. She identified the steak knife as that wielded by the robber. Her identification of those items was not seriously challenged in cross-examination.
[13] Ivan Lawrence also testified. He said that the man in the bus shelter was wearing a silver or grey hoody and a pair of jeans. He could not see his face and did not look at his shoes. He said he had no reason to take notice of the man.
[14] There were certain weaknesses with the Crown’s case. For reasons I don’t understand, none of the security camera footage was shown to the three women or to Ivan Lawrence or Robert Cyr. Furthermore, the three victims were never asked the time of the incident. This makes it difficult to match the time of the attack with the man running through the parking lot and into the back of the building. Each of the victims gave a different description of the knife. Ms. Baldwin described it as a pocketknife or switchblade. Ms. Slade described it as a small pocketknife. Ms. Lawrence described it as a serrated knife. They all gave different lengths for the blades. Ms. Baldwin did not mention sunglasses. She also said he was wearing unique running shoes; Ms. Lawrence said that the running shoes were white. As Mr. Elbrit points out, the police did not do a photo line-up. Furthermore, Ms. Baldwin did not give the police the name “Adam” at the time of the investigation. I accept Mr. Elbrit’s suggestion that she may not have known his name at the time of the robbery and likely learned it subsequently. Name issues notwithstanding, she clearly and consistently identified the robber as the man in the bachelor apartment.
[15] That said, the problems with the descriptions given by the victims were the kinds of problems one would expect from witnesses undergoing a traumatic event and testifying about it more than two years later. I have little difficulty in finding that the man in the bus shelter wielding a knife was Mr. McMillan. I say this for the following reasons:
- Florence Baldwin knew the robber as the man living in the bachelor apartment in 2560 Kingston Road;
- The building superintendent, Rudy Somwaru, identified the person living in the bachelor apartment as Adam McMillan. Mr. Somwaru was present when Mr. McMillan signed the lease for the bachelor apartment and recognized him;
- Sunglasses and a hoody seized by the police from Mr. McMillan’s apartment were identified by Shantel Lawrence as having been worn by the robber;
- The hoody seized by the police had black and tan stripes. Ms. Baldwin mentioned that the hoody had some tan colour in it;
- Ms. Baldwin and Ms. Lawrence both said that the robber had reddish hair. Mr. McMillan has reddish hair.
- All three women said that the robber had facial hair. The man in the security camera footage had facial hair.
- The victims said that after asking them for their purses and their money, the robber ran through the parking lot of 2560 Kingston Road towards the building. Security camera footage shows a man running through the back parking lot of 2560 Kingston Road, entering with a key fob, and then letting himself into the bachelor apartment. The man is wearing sunglasses and a hoody that are similar to the sunglasses and hoody identified by Shantel Lawrence and seized by the police from the bachelor apartment.
DISPOSITION:
[16] I am satisfied beyond a reasonable doubt that Mr. McMillan is guilty of counts 1, 2, and 3 on the indictment, which are the three counts of robbery. I am also satisfied beyond a reasonable doubt, based on the evidence of Ms. Slade, the security camera footage, and the fact that the hoody was pulled over his head that Mr. McMillan was disguised. Accordingly, I find him guilty of count 4 on the indictment. I am also satisfied beyond a reasonable doubt that Mr. McMillan carried a knife for a purpose dangerous to the public peace. He is therefore guilty of count 5 on the indictment.
[17] At the time of the robbery, Mr. McMillan was subject to a probation order. Justice Robertson of the Ontario Court of Justice imposed the probation order on June 22, 2011. The probation order required Mr. McMillan to keep the peace and be of good behaviour. He clearly did not keep the peace when he committed the robbery. The probation order also prohibited Mr. McMillan from possessing or carrying a weapon. He clearly breached that term by using a knife in the course of the robbery. Accordingly, I am satisfied beyond a reasonable doubt that he is guilty of counts 6 and 7 on the indictment.
R.F. Goldstein J.
Released: June 29, 2015
CITATION: R. v. McMillan, 2015 ONSC 4141
COURT FILE NO.: 14-3000455-0000
DATE: 20150629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM McMILLAN
REASONS FOR JUDGMENT
R.F. Goldstein J.