Court File and Parties

COURT FILE NO.: 13-4/398

DATE: 20151015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Lavalle Bobb

BEFORE: E.M. Morgan J.

COUNSEL:
Anna Stanford, for the Crown
Charn Gill, for the Defendant

HEARD: Sept. 21-24 and Sept. 28-October 2, 2015

REASONS FOR JUDGMENT

[1] The Defendant is charged with participating in an armed home invasion that occurred on May 24, 2012 at the home of the Russell family at 27 London Green Court, unit 40, in North York.

[2] The indictment sets out that three Russell family members were robbed, and that they and a friend who was visiting at the time were unlawfully confined. The indictment also states that the Defendant was at the time at large on a recognizance and that he failed to comply with a condition of that recognizance.

[3] There were four people in the house at the relevant time: Cecil Russell (the father and owner of the townhouse), Ryan Russell (the younger son), Dru Russell (the older son), and Sophal Seang (Dru’s girlfriend). All were terrorized at gunpoint by intruders whose faces were obscured by coverings or hoodies.

[4] Cecil was robbed of gold jewelry he was wearing at the time, while Dru was tied up, held forcibly to the floor, and robbed of a substantial amount of cash he had in a dresser drawer. Ryan was also beaten until he showed the intruders where the cash was stored. A small quantity of marijuana was also stolen from the house.

[5] The Crown contends that the Defendant was one of the intruders and thus took part in a common plan to perpetrate forcible confinement and robbery that took place at the Russell home. Counsel for the Crown concedes that the case against the Defendant is circumstantial, as none of the four victims were able to identify the intruders. The question is whether the identification evidence provided by a taxi driver, a security camera, and a single fingerprint, together with certain observations by the victims, is sufficient to prove that the Defendant was indeed one of the participants in the home invasion.

I. The home invasion

[6] Three of the four victims of the events that occurred on the evening of May 24, 2012 – Cecil Russell, Ryan Russell, and Sophal Seang – gave credible evidence as to what transpired during the 10 or so minutes that the intruders were in the home. However, the victims were separated into different rooms by the intruders; as a result, each of the witnesses had only a partial perspective on what was taking place. Neither Cecil, nor Ryan, nor Sophal saw all of the intruders together in the same room, and so none of them could say with any certainty how many participants there were in total.

[7] The fourth victim – Dru Russell – gave more problematic evidence, for reasons which will be reviewed below. It was Dru who answered the knock at the front door when the intruders first entered. Accordingly, he was the only one of the witnesses who had even a passing view of the total number of intruders who entered the home. Since there is some controversy over the number of intruders, and this controversy over the precise number is central to the Crown’s position that the Defendant was one of them, Dru’s evidence is particularly important.

[8] Cecil Russell and Sophal Seang related the events in very similar ways. The similarity in their evidence makes sense considering that they were ushered into the same bedroom by the intruders. For the duration of the home invasion, Cecil and Sophal had virtually the identical perspective on the events.

[9] Cecil testified that sometime around 10:00 p.m. on May 24, 2012, he was watching television in his room on the third floor of the townhouse when he heard noises and footsteps coming up the stairs. His son Ryan came into his room and said that he did not know what was happening downstairs. Cecil started walking down the stairs when someone came running up and punched him in the face, causing his nose to bleed and his glasses to fly off. The person who struck him had a hoodie on and a bandana over his face, so Cecil was unable to identify his assailant.

[10] Cecil said that he was then pushed down the stairs and into Dru’s bedroom on the second floor. Dru was not in his room, but his girlfriend Sophal was sitting on the bed shivering with fright. For the duration of the home invasion, Cecil and Sophal remained in Dru’s room. One of the intruders held them at gunpoint for much of that time. Cecil indicated that he was not beaten any more during the course of the home invasion, although before they departed one of the intruders in Dru’s room yanked off two gold chains that Cecil had been wearing around his neck.

[11] A number of minutes after he was pushed downstairs, Cecil saw another of the intruders come into Dru’s room dragging or pushing Ryan. Cecil described the man as having a stocky build. This man also had his face obscured. The stocky man said to Ryan, “Where is it?” He then pulled a drawer out of the dresser and threw it onto Ryan. Ryan fell onto the floor.

[12] Sophal’s description of the events matched Cecil’s description. She testified that she finished a late shift at her work at a real estate office and came over to visit her boyfriend, Dru Russell, at about 9:30 on the evening of May 24, 2012. She was watching TV in Dru’s room on the second floor when she heard a commotion, and several minutes later Cecil came stumbling into the room with his face bleeding. She said that he was followed by a man pointing a gun at him.

[13] Sophal indicated that the only thing she heard the gunman say was, “Don’t move.” She did not say anything in response. Cecil said, “Please don’t hurt us.” Sophal testified that she could not identify any of the intruders that she saw that night. She said that she remained seated on the bed in Dru’s room throughout the ordeal, and that she did not look up at anyone’s face as she was very scared and shaking. Cecil confirmed that Sophal was in a very frightened state during the time that the intruders were present, and that he tried his best to comfort her once the first gunman had pushed him into Dru’s room.

[14] Cecil appears robust but is an older man, and Sophal is youthful but appears to be a frail young woman. It is entirely credible that they were both startled and frightened by the armed intruders and could not identify anyone. As indicated, neither of them could say with any certainty how many intruders there were altogether, as a number of men kept coming in and out of Dru’s room while Cecil and Sophal sat on the bed trying not to move. Sophal eventually called 911 when she thought the intruders had left the house, and her shaky voice on the tape recording of that phone call verifies that she was in a state of high anxiety and fear.

[15] A few moments after Cecil was pushed into Dru’s room, Sophal saw the initial gunman leave and three more intruders enter. These three physically pushed Dru’s brother, Ryan, into Dru’s room. Sophal thought that one of them had a gun pointed at Ryan’s head. They went into the drawer of a dresser and took some money that was there. The intruders then asked for more, and Ryan responded there is no more.

[16] Just as he said this, Sophal saw one of the intruders smash a glass jar on Ryan’s head, and Ryan fell to the ground. The man who smashed Ryan then turned to Cecil, and told him, “Blame this on your son.” He also told Sophal not to worry, that they will not hurt her because she is a woman.

[17] The intruder then took out the rest of the drawers in the dresser, and threw the last one on Ryan lying on the ground. In the meantime, the other intruders who had entered with this one were going quickly in and out of Dru’s and Ryan’s rooms, searching in the closet and around the other furniture. Sophal indicated that she did not see Dru the entire time they were there, and was not sure where he was or what they had done to him.

[18] Ryan testified that when he first heard the intruders enter the house he was in his own bedroom on the second floor. He immediately ran up the stairs toward his father’s room in order to hide in Cecil’s closet. A gunman followed him up the stairs, struck his father in the face as he was coming out of his room to see what the commotion was about, and then dragged Ryan out of the closet and down the stairs.

[19] When Ryan got to the second floor, he was pushed back into his own room and was told to lie on the floor. A moment later, Dru was pushed into the room and was being kicked and beaten while he lay on the floor. Ryan heard one of the intruders say, “Cock the hammer”, and Ryan yelled out, “Why?”. He testified that from where he was lying on the ground he could not see any of the intruders very clearly.

[20] After a while someone else came into Ryan’s room and yelled out, “Where’s the money?” Ryan said he’ll take him to the money, knowing that Dru kept some cash in his drawer. Ryan testified that he thought there might be about $2,500 in Dru’s room.

[21] One of the intruders dragged Ryan to Dru’s room and threw him on the floor. Ryan said that the man then threw a glass jar onto his head and it cut his ear. After that, the man took out the drawer from the dresser and threw it on Ryan as well. At some point during this physical abuse, the man said, “Blame this on your bro”. Ryan thought that he might have repeated it twice.

[22] Ryan stated that he could hear the intruders going through the furniture and ransacking the closet in Dru’s room. Photographs taken by the police in the immediate aftermath of the incident show very disheveled bedrooms in the house, as if the dressers and closets had all been emptied by people searching through them.

[23] When he heard the house go silent, Ryan eventually went downstairs and saw that the back door of the house was open. The screen door was also unlocked, although it generally does not stay open by itself. Ryan testified that the back door always stays locked, and that there are a couple of locks and a dead bolt on it. Ryan’s observations suggest that the intruders had left the residence by the back door.

[24] Like Cecil and Sophal, Ryan was unable to identify any of the intruders. He testified that they seemed to have their faces covered, and that in any case the events happened too quickly and he was mostly being beaten and forced to lie on the floor without a chance to look closely at any of them. Ryan was taken to the hospital after the police arrived, and photographs of him taken at the hospital show him to be bloodied and beaten quite badly. It is credible that he could not identify any of the assailants. It is also credible that he could not say for sure how many there were, since he had not seen them all together in the same room at any one time.

II. The identification issue

[25] Video footage from a security camera in front of the Russell townhouse shows six men approaching the front door of the house on the night of the incident in question. The doorway itself is out of the camera’s range, but the configuration of the townhouse complex makes it clear that the six individuals are approaching unit 40, owned by Cecil Russell.

[26] The video shows a group of four men who appear to have been waiting under a nearby tree. The first two approach the Russell residence walking relatively slowly. One of them has his face uncovered and the other has a hoodie pulled over his head and covering his face. The second pair of men from under the tree then run toward the front door after the first two, while another pair of men get out of a car that can be seen pulling into the development’s parking lot. These last two men then run toward the front door of the townhouse. It is dark outside and all of the men except the first one have their faces obscured with hoodies or hats pulled down. Crown counsel points out that the hoodies and headgear they are wearing all seem inappropriate to the springtime weather that evening.

[27] The way that these six individuals approach the townhouse together, with the latter four following the first two and their hoodies pulled over their heads, indicates something unusual about their approach. They do not appear to be ordinary, casual visitors. The security camera, which stays constantly trained on the same spot, never shows the six men leaving the Russell home that night. The next people that can be seen in the video arrive a short time later. They were identified by Ryan Russell as his two friends that had been planning to visit him that evening.

[28] The friends are shown in the video footage walking at a normal pace toward the door. They are wearing T-shirts appropriate to the springtime weather, and have nothing obscuring their faces. The normalcy of their approach to the house stands in stark contrast to the six men that approached earlier. A moment later, one can see the police arrive at the home and approach the front door of the Russell residence. The police are wearing their warm weather, short sleeved uniform shirts.

[29] There is also a security camera at the rear part of the townhouse. That camera shows several individuals running through a garden path a short while later (although the time cannot be determined with any precision as the clocks on the front and back security cameras were not synchronized). Crown counsel submits that this footage shows some of the intruders leaving the rear of the Russell house and walking toward a car waiting on the street behind the house. However, it is so dark at the rear of the property that it is hard to discern on the video precisely who is being shown or what is going on.

[30] The question of identity – was the Defendant part of the group of intruders that attacked the residents of the Russell home on May 24, 2012? – is central to the case. First and foremost, the Crown must establish beyond a reasonable doubt that the Defendant took part in the home invasion. As indicated, Cecil Russell, Sophal Seang, and Ryan Russell cannot identify him as being one of the intruders, and are not certain how many intruders attacked them in total.

[31] The question of identity is partly addressed by two taxi driver witnesses produced by the Crown. One of them, Harbinder Atwal, is crucial to the Crown’s case. He testified that he drove two passengers to the Russell residence at 27 London Green Court on the night of May 24, 2012. He was called on the phone by the first one, a passenger whom he had driven on previous occasions, and picked him up at 2000 Sheppard Avenue West, a building in the Jane and Sheppard area of Toronto, around 10:00 p.m. He then was directed by that passenger to go to 45 Driftwood Avenue, a high rise building immediately behind 27 London Green Court, where he picked up a second passenger who sat in the back seat behind the driver.

[32] The passenger who entered Mr. Atwal’s taxi at 45 Driftwood approached the car from behind and entered through the rear driver’s side door. This second passenger was a male, and immediately told Mr. Atwal to put the visor down on his windshield. The visor is positioned in such a way that it obscures the taxi’s internal security camera, so the face of the passenger sitting behind the driver cannot be seen on the video produced by that camera. The second passenger also told Mr. Atwal to turn the radio on loud, as a result of which Mr. Atwal was unable to hear the two passengers’ conversation.

[33] The second passenger – i.e. the one who entered the taxi at 45 Driftwood Avenue – was identified by Mr. Atwal as the Defendant. He picked him out of a police photo lineup. Counsel for the defense submits that there were a number of problems with the photo lineup, not the least of which is that the officer who put together the photo array, Richard Luczyk, attended at Mr. Atwal’s home together with the investigating officer, Michael McGinn, and was present when Officer McGinn conducted the photo lineup procedure. It was therefore not the “double blind” type of lineup that is optimal for identification purposes. In addition, the procedure was audio taped but not videotaped, and so it was not possible to see the way in which the photos were presented to Mr. Atwal.

[34] In addition to all of that, there is some confusion as to why the photo lineup was conducted at Mr. Atwal’s home instead of at a police station where it could be videotaped. Officers Luczyk and McGinn testified that they understood that Mr. Atwal did not want to come to the police station and would not participate in the identification procedure there. When Mr. Atwal was asked about this at trial, he indicated that he had no particular objection to coming to the police station, and testified that in fact he later did come to the police station to repeat the lineup procedure with a different set of photos. The police officers seemed to be unaware that Mr. Atwal had no objection to coming to the station, and Mr. Atwal seemed to be unaware that the police were under this impression.

[35] That said, this confusion appears to me to have been the result of unfortunate miscommunication between the officers and Mr. Atwal. I do not take it as an attempt by the police to skew the identification procedure. I am convinced that the photo lineup was done by Officers Luczyk and McGinn in a bona fide way.

[36] There was nothing untoward in the audio tape of the identification procedure, and Mr. Atwal never indicated that he was coached or that the photo he chose was suggested or in any way hinted at by Officer McGinn when it was showed to him, or, that he was influenced by Officer Luczyk or by any other police officer working on the investigation. Mr. Atwal was shown three different photo arrays, only one of which contained a photo of the Defendant, and he managed to select that one and no other photo.

[37] The main problem with Mr. Atwal’s identification of the Defendant is that it was dark on the night of May 24th, and Mr. Atwal testified that the second passenger had approached his car from the rear. Mr. Atwal had only a moment to see this passenger. Although Officer McGinn testified that Mr. Atwal seemed confident of his choice of the Defendant at the time he was shown the photo array, Mr. Atwal testified at trial that he could only be “70% sure” that the passenger was the Defendant. I therefore cannot rely on Mr. Atwal’s identification evidence alone. A 70% certainty in identification, without anything more, leaves ample room for reasonable doubt.

[38] However, there is more. The Defendant’s fingerprint was found on the window of the rear, driver’s side door of Mr. Atwal’s taxi. It is not possible to say when this print was left there by the Defendant, but it verifies that the person identified in the photo lineup, whatever the frailties of that lineup procedure may have been, was indeed a passenger in Mr. Atwal’s taxi at some point in the week preceding the photo lineup. That procedure took place on May 28, 2012, just four days after the attack on the Russell home.

[39] Furthermore, Mr. Atwal testified that the second passenger instructed him to let him and the first passenger off in front of 27 London Green Court at a spot in the parking lot in front of Cecil Russell’s unit 40, and to then wait for the two of them to return to the taxi in front of 45 Driftwood Avenue. Mr. Atwal did as requested, and the two passengers came out a short time later and met him as he sat facing southbound in front of 45 Driftwood. He indicated that the two passengers approached his car from the direction of the London Green townhouses.

[40] Mr. Atwal further testified that once the two passengers had returned to his taxi, they then told him to drive them back to 2000 Sheppard Avenue, where the first passenger got out. The second passenger remained in the rear driver’s side seat, and told Mr. Atwal to take him to 16 Bergemot Avenue, in the Rexdale neighbourhood. Mr. Atwal let the passenger off in the parking lot of an apartment building at that address.

[41] The Defendant was arrested on May 30, 2012. He was taken out of a taxi cab that was pulled over near the Jane Street and Wilson Avenue intersection, and was arrested on the spot. The driver of that taxi, Pius Adegbamigbe, was called by the Crown to testify. He indicated that at the time of the arrest, he had been told by the Defendant to drive him to 16 Bergemot Avenue. Mr. Adegbamigbe testified that, in giving these directions to him, the Defendant had referred to the address on Bergemot Avenue as “home”.

[42] The police executed a search warrant on 16 Bergemot Avenue, apartment 624. Officer McGinn testified that he participated in the search of that residence, and that a substantial number of documents were found there containing the Defendant’s proper name, Lavalle Bobbarrindell. According to Officer McGinn, this documentation included mail addressed to the Defendant at that residence, and statements from the City of Toronto, Canada Revenue Agency, and other sources addressed to the Defendant at 16 Bergemot Avenue. The evidence leaves no doubt that this is the Defendant’s home address.

[43] In addition to all of that, the Defendant’s cell phone was seized by the police when they executed the search warrant at his house, and it is obvious from the telephone records produced at trial that this is the very phone that was used to call Mr. Atwal on May 24, 2012. For his part, Mr. Atwal testified that he did receive a call from the Defendant’s phone number that night, but that he spoke with the first passenger rather than the second one whom he identified as the Defendant. Nevertheless, it is clear that the phone seized from the Defendant at his residence called Mr. Atwell on the night in question.

[44] A compliance officer from Bell Canada, Leslie Fitzgerald, and a radio frequency specialist at Bell Mobility, Syed Muhammad Zaidi, were produced by the Crown as witnesses. They testified as to the location of the cell phone on the evening in question. It appears from their combined testimony that the Defendant’s cell phone connected to a number of different cell phone towers on the evening of May 24, 2012. The phone appears to have moved around the northwest end of Toronto as follows:

At 19:54:29 a call is made from a cell tower at 2413 Islington Avenue;

at 21:58:50 a call is made from a cell tower at Highway 401 and Islington Avenue;

at 22:23:40 a call is made from a cell tower at 2999 Jane Street; and

at 23:33:49 a call is made from a cell tower at 2413 Islington Avenue.

[45] As it turns out, these are the cell towers that would have been used by the Defendant’s phone if it started out the evening at the Bergemot address, made its way to Driftwood and then to London Green Court, and then eventually back to Bergemot.

[46] The combination of factors – Mr. Atwal’s identification of the Defendant as the second passenger in his taxi, the Defendant’s fingerprint on Mr. Atwal’s taxi cab window, the fact that the Defendant’s cell phone was used in a way that followed the route of Mr. Atwal’s taxi, and Mr. Atwal’s testimony that the second passenger asked to be dropped off at the Defendant’s home address – adds up to proof that the Defendant was the second passenger to get into the taxi on May 24, 2012. The Defendant got into the taxi at 45 Driftwood Avenue just around 10:00 p.m., rode a short distance around the block to the front parking lot of 27 London Green Court, got into the taxi again a short time later in front of 45 Driftwood Avenue, and directed the driver to drive him to 16 Bergemot Avenue where he disembarked.

[47] Mr. Atwal was shown the security video from the front of 27 London Green Court, and identified his taxi pulling into the parking lot. He described how he pulled into a parking spot, and can be seen in the video pulling into the parking spot and discharging his two passengers who then run toward the entrance of unit 40. Putting all of the evidence together, there is no doubt that the Defendant is one of those two passengers.

[48] As already indicated, the security video does not actually show the front entrance to the Russell residence at 27 London Green Court, unit 40, although it does show the approaches to the front entrance. As also indicated, six men can be seen approaching the entrance, and none of them exit from that front approach. Two appear to exit from the rear of 27 London Green Court and walk toward a car waiting in front of 45 Driftwood Avenue. Is one of them the Defendant, who would have entered the front entrance as one of a group of six intruders and exited the rear door of the townhouse?

[49] All indications are that the group of six men seen on the security video are the intruders who attacked the Russell home. The only problem is that Dru Russell, the one resident of the Russell home who had the opportunity to see all of the intruders enter the townhouse, testified at trial that there were only four. That, then, raises the question of whether the two passengers in Mr. Atwal’s taxi, who would have been persons 5 and 6 entering the Russell house (just after the first group of four men who had been waiting under the nearby tree), were part of the group of intruders.

[50] Given that these last two men do not re-appear on the front door security video, it is difficult to imagine what happened to them or where they went if they were not part of the group that entered the Russell house. Nevertheless, it does raise a concern about the Crown’s evidence if Dru Russell is to be believed and there were only four home invaders in total. If there were 6 intruders, it is clear that the Defendant was one of them and was a participant in the assaults and robbery that took place there. However, if there were only four intruders, it is conceivable that the Defendant was not among them, since two of the six would not have participated in the offences that took place inside the house.

III. The number of intruders

[51] Counsel for the Crown submits that there were 6 intruders in the Russell house on May 24, 2012, not four as Dru Russell testified. She bases this not just on the fact that 6 men are seen on the security video approaching the front entrance of the house that night, but on the statement made by Dru Russell himself in his interview with the police just after midnight on May 25, 2012 – i.e. about two hours after the home invasion took place.

[52] In that interview, which was videotaped by the police and a transcript produced, Dru narrated the events by indicating that he was the member of the family that answered the door that night. He went on to relate that he looked through the door’s peep hole and saw a man with his face uncovered standing outside. He opened the door and the first man entered, closely followed by a second man with his face covered. One of these two pointed a gun at him, and the two of them forced him to lie face down on the floor.

[53] Dru was then asked by the police officer conducting the interview how many others came in after the first two intruders. He indicated that it was not easy for him to see clearly as he was lying face-down on the floor, but he could see the intruders’ legs go by as they rushed past him up the stairs. He answered that he saw, “like four or five”.

[54] Counsel for the Crown relies on this statement for the truth of its contents. She contends that it is more credible than the answer to the identical question that Dru gave at trial, where he said that he thought there were 4 intruders in total. On October 2, 2015, I ruled that Dru’s statement is admissible as a prior inconsistent statement, and that it meets the criteria of reliability and necessity as set out in R v B (KG), 1993 116 (SCC), [1993] 1 SCR 740.

[55] It is the Crown’s theory that Dru was reluctant to tell the truth at trial because, with the passage of time since May 24, 2012, he has had time to reflect on the reputational impact of implicating the Defendant in the offenses charged. Crown counsel argues that Dru does not want to be at odds with the Defendant or his friends. This prospect was raised in a line of questioning pursued by Crown counsel in examining Dru, where it was made clear that Dru is aware of the damage that might befall him if he were perceived to be a “snitch” by his circle of peers:

Q: You don’t want to be seen as someone who is a snitch?

A: I’m not a snitch.

Q: You would never want to be seen as a snitch because that’s dangerous, right?

A: Yeh.

Q: And you know [the Defendant] from the neighbourhood, right?

A: Yeh.

Q: So it is in your interest not to be seen to be giving evidence that may hurt [the Defendant] in this trial, right? You don’t want to be seen by [the Defendant] to be assisting the prosecution, right?

A: I prefer not to answer.

Q: Well, I’m going to make you answer.

A: I don’t know.

[56] The reason that Dru did not want to answer the last question in this sequence can be readily inferred without any conjecture or great leap of logic. As Crown counsel suggested, he did not want to be seen giving evidence against the Defendant.

[57] Combined with this is the fact that Dru was reluctant to tell either the police or the court that any cash was taken from him. It was his brother, Ryan, who testified that Dru had about $2,500 in cash that went missing from his room the night of the home invasion. Ryan also testified that a small quantity of marijuana that was in a knapsack in one of the closets was taken by the intruders as well.

[58] Although he was a victim of this crime, and was badly roughed up by the intruders in his home, Dru was a most reluctant Crown witness. He was curt in his answers at the best of times, and was not forthcoming on important information. As indicated, on the crucial issue of how many intruders he saw in his home, he was outright contradictory. Given his prior inconsistent statement on this question, I permitted Crown counsel to cross-examine him, and the cross-examination revealed him to be protecting the Defendant in precisely the way suggested by the Crown.

[59] I conclude that Dru told the truth about the number of intruders when he was interviewed by the police in the early hours of May 25, 2012. He saw two intruders hold him down on the floor at gunpoint, and another four rush past him up the stairs toward the bedrooms. By the time he got to trial he had changed his testimony and reduced the number of intruders in an effort to factor out the Defendant. In fact, however, there were 6 intruders in the Russell home that night, the very number seen on the security video approaching the front door of the townhouse.

IV. Party to the offence

[60] As stated at the outset, the Defendant was initially charged with armed robbery, forcible confinement, and failure to comply with the terms of a recognizance.

[61] No evidence has been led with respect to any recognizance or the Defendant’s alleged failure to comply with it. Accordingly, the Crown is not pursuing the charge relating to the recognizance.

[62] At the end of the trial, counsel for the Crown conceded that there is no proof that the people who invaded the Russell home on May 24, 2012 carried weapons. The witnesses indicated that they saw what they thought were real weapons bra