CITATION: R. v. Loots-Scott, 2015 ONSC 5300

COURT FILE NO.: CRIMJ(P)587/14

DATE: 2015-08-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Sean Doyle, for the Crown

– and –

RYAN LOOTS-SCOTT

Joanna G. Gordon, for the Defendant

Defendant

HEARD: August 17-19, 2015

REASONS FOR JUDGMENT

M. J. Donohue, J:

THE CHARGES

Count 1: Robbery s. 344 November 20, 2013

Count 2: Being Masked with Intent to Commit Robbery s. 351(2) November 20, 2013

OVERVIEW

[1] A robbery was committed in the early hours of the morning of November 20, 2013, by three males breaking into the Dhillon home. The issue for the court is whether the Crown has proven beyond a reasonable doubt that Mr. Loots-Scott was one of those three intruders.

[2] The Defendant is charged with one count of robbery and one count of being masked with intent to commit robbery.

[3] The primary witness was Mr. Loots-Scott’s girlfriend who testified that he confessed to the crime that same morning.

THE EVIDENCE HEARD AT TRIAL

[4] It was not disputed that there was a robbery at the Dhillon home in Brampton in the early morning of Wednesday, November 20, 2013. Security cameras at the residence captured individuals in hoodies exiting and carrying items that appeared to be TVs. At one point an individual departed wearing a CCM backpack.

The Robbery

[5] Nineteen-year-old Gurbir Dhillon was home alone while his parents were away on vacation for the month of November. The house was about 3400 square feet.

[6] Police observed that a basement window screen had been sliced open and the basement door access to the ground floor of the home had been forced open from a locked position. Police photographs of the home taken the following day showed that the home had been, in the words of Officer Rodriguez, “somewhat ransacked”. Drawers and cupboards were left open with contents strewn about.

[7] Gurbir Dhillon testified that he awoke sometime between 2:30 and 4:00 a.m. when his bedroom door was being opened. Three males entered wearing black clothing. Each carried a kitchen or butcher knife. He was pushed out of bed onto the floor and kicked.

[8] He said that all three were masked and hooded. One wore a black bandana. He thought that one was white or Caucasian; one was dark skinned and one looked Asian. The black male was wearing a blue hoodie with a state name on it.

[9] He thought they were all pretty tall. At trial he recalled they were almost six feet tall. In his police statement he remembered that he said they were 5’9”. He thought that meant about the same thing.

[10] In the courtroom, Mr. Dhillon was asked by the Defence to look at the height of Mr. Loots-Scott. He agreed that Mr. Loots-Scott did not look six feet tall. Mr. Dhillon was unsure of his own height and said he thought the accused was a lot taller than him.

[11] I observed that Mr. Dhillon was an unusually short man, perhaps not more than five feet tall. I also observed that he has brown skin and appeared to be of South-Asian heritage.

[12] Mr. Dhillon thought the white male was stocky; not too skinny.

[13] Mr. Dhillon was asked by the intruders to show them where the valuables were in the house. He followed them from room to room and tried not to look at them. He kept his head down. He did not recognize their voices. He thought they were there for 20-30 minutes.

[14] Mr. Dhillon testified that the intruders took two TVs, approximately $2,000 in cash, a GPS system, some bottles of alcohol, some jewellery, a laptop, and a cell phone.

[15] Mr. Dhillon said he made no secret that his parents were away. He agreed that he had had other friends over for some partying. His friend Paul Notay had been doing free tattoos for friends at Mr. Dhillon’s house.

[16] I find Mr. Loots-Scott is not excluded as not being close to six feet tall. Mr. Dhillon’s perception of tall was consistent with his view of Mr. Loots-Scott being ‘a lot taller than him’.

Handshake Incident

[17] On the Tuesday evening before the robbery, Mr. Dhillon had been out in his car with his friend Paul Notay. They met up with an acquaintance, Mr. Loots-Scott who repaid $60 borrowed from Mr. Dhillon a week or two before. As they parted Mr. Loots-Scott went to shake hands with Mr. Notay. The latter’s hands were dirty and so he made a “fist bump” instead.

[18] Within 15 minutes Mr. Dhillon and Mr. Notay received an angry phone call from Mr. Loots-Scott about the offensive handshake. Both Mr. Dhillon and Mr. Notay apologized on the phone.

[19] Neither Mr. Dhillon nor Mr. Notay considered this incident to be significant. Mr. Dhillon did not mention it to police when his statement was taken the day after the robbery. Months later, in 2014, police called and asked about their activities on the evening before the robbery and they related these details.

The Confession

[20] Shalom Patrick was Mr. Loots-Scott’s girlfriend at the time. She recalled that on a Tuesday in November 2013, she had been calling his cell and he was not answering her. She said it was a Tuesday as she had her regular singing class that evening. Early the next morning, on the Wednesday, she received a call from him and he arranged to pick her up.

[21] In the car he made a number of disclosures to her, which she related to police four days later.

[22] On Sunday November 24, 2015, Ms. Patrick called police reporting a threat of violence against her father by Mr. Loots-Scott. She gave a statement that day and in the course of her interview she disclosed what Mr. Loots-Scott had told her about being involved in a robbery.

[23] Ms. Patrick stated that when Mr. Loots-Scott picked her up it was about 5:30 a.m. Wednesday morning. She questioned him why he had not answered his phone and where he had been.

[24] Of note, she said he had:

• “robbed a brown guy”

• at a big house

• whose parents were away, and

• who was home alone.

[25] He told her that he did it with his friend Jarrett Phillips, whom she knew, and a third person, whom she did not know.

[26] He told her that they took about $600 in “weed” and a couple of TVs.

[27] He also told her that, earlier in the night, Mr. Loots-Scott had had a problem with the boy’s friend who did not give a proper handshake.

[28] Cell phone records between Ms. Patrick’s phone and Mr. Loots-Scott’s phone show nine attempted calls around midnight, which were not answered and went to voicemail. There were a further five calls from her phone to his around 4:30 a.m. that went to voicemail. The records then show a four-minute phone call from his cell phone to hers around 5:47 a.m.

Search of Jarrett Phillips Apartment

[29] It was agreed that Mr. Loots-Scott and Jarrett Phillips were friends. Police searched Mr. Phillips residence on the same day Ms. Patrick reported the information. Police found bottles of liquor, a laptop in a red CCM knapsack, a Blackberry, an IPhone, and jewellery, all of which belonged to the Dhillon residence.

[30] It was agreed that police also found a blue hoodie sweatshirt with “Virginia” printed across the chest, and a blue bandana in the kangaroo pocket at the Phillips residence.

[31] Mr. Phillips pled guilty to possession of stolen property.

Fabrication

[32] It was the Defence position that Ms. Patrick fabricated this confession.

[33] Ms. Patrick and Mr. Loots-Scott had had a stormy relationship. She testified that they dated about four and a half years and broke up finally in May 2014, some six months after this robbery. They had broken up often before. Ms. Patrick had made reports to police of abuse and then chosen not to testify. She agreed that she had said she did not want to testify in this trial. She explained that Mr. Loots-Scott had pressured her to not testify. She did not recant her story but told police she did not want to testify.

[34] In cross-examination, the Defence was able to elicit from Ms. Patrick her frequent willingness to go to police. A Facebook chat with Jarret Phillips’ girlfriend, Johnna, a few weeks after the robbery, was produced. It showed Ms. Patrick threatening to report to police if Johnna did not disclose what Mr. Loots-Scott had said to Johnna.

[35] Ms. Patrick explained that she knew Mr. Loots-Scott and Mr. Phillips were under court order not to communicate and for this reason she made this statement to Johnna that she would indeed inform police if they were not following the order. I find this to be a reasonable explanation.

[36] The Defence submitted that Ms. Patrick was motivated to fabricate this evidence to ensure that Mr. Loots-Scott was put into custody.

[37] I find the evidence is to the contrary. When Ms. Patrick gave her statement on November 24, 2013, it was to discuss the threat made against her father. She asked police whether Mr. Loot-Scott would be put in custody and said, “I’m just asking because I’m afraid to be honest like I feel bad.” At trial, Ms. Patrick explained that she felt badly that she “snitched on him.”

[38] Her evidence was that she continued to love him and wanted them to work things out. Their relationship continued another six months until May 2014. She visited him while he was in custody on more than one occasion.

[39] The Defence suggested that Ms. Patrick came into this information by some other manner within those four days rather than from Mr. Loots-Scott. Ms. Patrick, however, denied having any relationship with Mr. Loots-Scott’s friends, as he did not like her talking with them.

[40] The Defence further challenged Ms. Patrick’s credibility, that she did not tell police her information about the robbery until four days afterward and some three days after one of their “break ups”. The Defence pointed out that Ms. Patrick had called police before when she alleged she was intimidated or abused and that she was not fearful of calling police. Ms. Patrick agreed with this.

[41] Ms. Patrick said that she had never lied to police. She was not impeached on any inconsistencies in this regard. I found her evidence straightforward and credible. She was not shaken on cross-examination on any point. Her only inconsistency, which was not raised at trial but I note nonetheless is the timing of Mr. Loots-Scott’s call to her on the morning of November 20, 2013. She thought he called her around 5:00 a.m. The phone records show it was at 5:47 a.m. I do not find this a significant inconsistency.

[42] As was his right, Mr. Loots-Scott elected not to testify.

ANALYSIS

[43] The defence urged me to find Ms. Patrick to be an unreliable witness in light of her emotional history with Mr. Loots-Scott and her willingness to involve police.

[44] I, therefore reviewed all the evidence to consider whether there was confirmatory support for her evidence.

[45] McWilliams’ Canadian Criminal Evidence discussed the common sense approach to confirmation and corroboration at 34:50 p. 34-18. They refer to the Supreme Court of Canada in R. v. Vetrovec (1982) 1982 CanLII 20 (SCC), 67 CCC 2d 1 (S.C.C.) p. 19.

Does the potentially confirmatory evidence “strengthen the belief that [the witness] was telling the truth”? Can it be said the “evidence is capable of inducing a rational belief that [the witness] is telling the truth”?

[46] The testimony of Ms. Patrick setting out the details she said she learned from Mr. Loots-Scott were consistent with this robbery; that he robbed a “brown guy”, in a big house, whose parents were on vacation, who was home alone. They stole a couple of TVs.

[47] The timing of the disclosure to her is within hours of it occurring and her disclosure to police was within four days.

[48] He told her that there were three of them involved and one was Jarrett Phillips whom she had met.

[49] Her testimony was corroborated by the search of Mr. Phillips residence which revealed a number of the stolen items.

[50] Mr. Loots-Scott described the incident of the handshake to Ms. Patrick. The incident was not significant to either Mr. Notay or Mr. Dhillon and was not mentioned when the robbery was first investigated. Mr. Dhillon did not connect the two events.

[51] Although insignificant, the handshake incident being confirmed by Mr. Notay and Mr. Dhillon, further corroborates Ms. Patrick’s recounting of information she says she received from Mr. Loots-Scott.

CONCLUSION

[52] This is a strong case of circumstantial evidence supporting the confession made to Ms. Patrick. I am satisfied that Ms. Patrick’s evidence is reliable in light of the evidence corroborating her statement.

[53] On a review of all the evidence, I am satisfied beyond a reasonable doubt that identity of the accused, Mr. Loots-Scott is established and that he was one of the three masked robbers of the Dhillon residence.

[54] Accordingly, I find the defendant guilty on both counts.

M.J. Donohue, J.

Released: August 27, 2015