ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/14/40000397/0000
DATE: 20151026

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

JAVON EDWARDS

Paul Leishman, for the Crown
L. Cohen, for Javon Edwards

HEARD: June 3, 4, 6, 9, 10, 11, 12, 13, 17, 18, 23, 24, 25, 26, 27; September 2, 3, 5; October 6; November 18, 21; December 1, 2014 and September 3, 2015

M. Forestell J.

REASONS FOR JUDGMENT

I History of the Case

[1] Javon Edwards was jointly charged with Aman Ali, Brian Pich and Brian Mensah on an indictment charging them with four counts of robbery, one count of using an imitation firearm in the commission of the offence of robbery, one count of having their faces masked in the commission of an indictable offence, one count of unlawful confinement and one count of assault with a weapon. A fifth accused, Awale Dirie, entered a guilty plea in relation to the robbery prior to the preliminary inquiry. The charges arose out of the robbery of the staff and customers at the Lobster Trap restaurant in Toronto.

[2] The trial has followed an unusual procedural course. On June 3, 2014, the trial on these charges commenced with a blended voir dire into the admissibility of statements made by Mr. Mensah, Mr. Pich and Mr.Ali. The parties called evidence over several days. Before making submissions on behalf of Mr. Ali, counsel for Mr. Ali and for the Crown advised that a ruling would not be necessary with respect to Mr. Ali’s statement. Mr. Ali then entered a plea of guilty to offences related to the robbery and was sentenced.

[3] On June 17, 2014 the trial of Mr. Mensah, Mr. Pich and Mr. Edwards continued before me, proceeding over several days in June, September and October. The evidence was completed on October 6, 2014 except for reply evidence in relation to Mr. Edwards. The case was adjourned to November 18, 2014 for reply evidence and submissions. On November 18, 2014 counsel for Mr. Edwards was unable to continue to represent Mr. Edwards because he had been suspended by The Law Society. With the consent of all parties I heard submissions with respect to Mr. Mensah and Mr. Pich on November 21, 2014.

[4] I reserved my decision with respect to Mr. Pich and Mr. Mensah to December 1, 2014 and adjourned Mr. Edwards’ case to the same date to hear submissions on whether his charges should be severed from the indictment.

[5] On December 1, 2014, Mr. Edwards attended and advised that he had retained Mr. Cohen as counsel. Mr. Cohen was unable to attend court that day but spoke with the Crown and advised that Mr. Edwards consented to being severed from the other two accused. Mr. Edwards confirmed this. As a result, I ordered that Mr. Edwards be severed from the indictment. On December 1, 2014 I found Mr. Pich guilty and I found Mr. Mensah not guilty.

[6] On September 3, 2015 I heard the reply evidence and submissions in relation to Mr. Edwards. It was agreed on behalf of Mr. Edwards that the trial evidence heard before severance applied to Mr. Edwards’ trial. New counsel had access to all transcripts from the previous proceedings. He did not seek to supplement the record or recall any witness for further cross-examination.

[7] I will now render my decision in relation to Mr. Edwards.

II Overview of the Facts

[8] The robbery of The Lobster Trap restaurant occurred on January 25, 2012. A number of men entered the restaurant before 9:54 p.m., wearing bandanas over their faces. At least two of the men had guns and at least one or two had knives. One man held a knife to the throat of one of the patrons, causing a small cut. The men removed cash and liquor from the restaurant. They also took money, cellphones and other personal belongings from the staff and patrons.

[9] About one hour after the robbery, police responded to a report that several men were in a vacant apartment in a building at 11 Flemington, not far from The Lobster Trap restaurant. Police arrested the men in the vacant apartment for being unlawfully in a dwelling-house. The police located property in the apartment that had been stolen in the robbery. Video surveillance shows that five of the men later arrested in the apartment arrived together at the apartment building just under one hour after the robbery was complete. The five men in the video are Mr. Edwards, Mr. Mensah, Mr. Pich, Mr. Ali and Mr. Dirie. Mr. Ali and Mr. Dirie pleaded guilty to the robbery, Mr. Pich was found guilty. Mr. Mensah was charged but was acquitted.

[10] Mr. Edwards testified and offered an explanation for his presence in the apartment at 11 Flemington on the night of the robbery. Mr. Edwards testified that he went to the apartment to give money to a man named “Delon Wickham”. Mr. Wickham testified and confirmed that he called Mr. Edwards and asked him to bring money and that Mr. Edwards arrived a short time later with the money. Mr. Edwards denied being present at the robbery and testified that he went directly from his home to the apartment at 11 Flemington, arriving just as the other four men in the video arrived. He knew the other men, but had not been with them prior to their arrival at 11 Flemington.

III The Issues and the Positions of the Parties

[11] There is no question that all of the offences set out in the indictment occurred. The issue in this case is whether the accused committed the offences. It is not suggested by the Crown that the descriptions given by the victims of the robbery could in themselves support a conviction. The Crown relies on the general description of the perpetrators of the robbery as part of the totality of circumstantial evidence that the Crown submits is consistent with the inference that Mr. Edwards was one of the participants in the robbery. In addition to the description, the Crown points to Mr. Edwards’ entry to 11 Flemington with four other men, two of whom admitted involvement in the robbery and one of whom was found to be guilty of the robbery. The Crown also points to Mr. Edwards’ proximity to and handling of the stolen property found in the Flemington apartment. The Crown submits that the evidence, viewed as a whole, is consistent with guilt and is not consistent with any other reasonable inference. The Crown submits that I should reject Mr. Edwards’ evidence and that it should not raise a reasonable doubt.

[12] Counsel for Mr. Edwards submits that I should accept the defence evidence, including the testimony of Mr. Edwards. He argues that the evidence is credible and reliable and consistent with the evidence as a whole. At the very least, it is argued that the evidence should raise a reasonable doubt. Alternatively, even if I reject the defence evidence and it does not raise a reasonable doubt, counsel for Mr. Edwards submits that the evidence as a whole should not satisfy me of Mr. Edwards’ guilt beyond a reasonable doubt.

IV Evidence

1. Events at the Lobster Trap Restaurant

[13] In my reasons for judgment with respect to Mr. Mensah and Mr. Pich (2014 ONSC 6987) I reviewed the evidence of the robbery in some detail. I also set out my approach to the evidence of the witnesses to the robbery and my assessment of the credibility and reliability of that evidence. The evidence is the same with respect to Mr. Edwards and I will not repeat that portion of my previous reasons for judgment. My findings of fact with respect to the robbery remain the same. I will reproduce those findings here for convenience (paragraph 97):

• Five men entered the restaurant and stole the items described by the victims. I rely on the evidence of Ms. Bocher and Ms. Whitaker to reach this conclusion. They were in the best position to observe the restaurant as a whole. Ms. Bocher counted the men as they left. While some others in the restaurant were only able to see 2 to 4 men, these witnesses were not positioned to see the whole restaurant.

• All of the men who entered had their faces covered and all of the men wore dark clothing. This was the evidence of all of the occupants of the restaurant.

• One bandana was green. I find the evidence of Ms. Bocher to be credible and reliable on this point. She was not certain of the colour of every bandana, but recalled the green colour of the one bandana.

• One or more of the men asked Ms. Bocher to open the safe and one man asked her to open the refrigerator with her key. Ms. Bocher was the witness who was directly involved with the demands to open the safe and the demand to open the refrigerator. Her evidence on this sequence of events is supported by the evidence of Ms. Whitaker who came over to the safe area to assist Ms. Bocher. It is also supported by the evidence of the patrons who heard demands to open the safe and demands for a key.

• Two of the men had what appeared to be guns. This finding is based on the evidence of Mr. Pineda, Ms. Ma and Ms. Zhou.

• One man had a knife and held it to the neck of Wu Hao, causing a small cut. While there was some evidence of another knife also being wielded, I cannot find as a fact that there was more than one knife because of the confusion within the restaurant and the movement of the men who were robbing the restaurant.

• Four of the men had dark skin. The skin colour of the fifth man is not known. I do not find the evidence of Ms. Chiu that one of the men was white to be reliable. However, none of the patrons and staff saw every participant well. Ms. Whitaker had the best opportunity to see the participants and saw four black men. She did not see the fifth person well enough to describe him.

2. Events at 11 Flemington

(i) Video Surveillance and Agreed Facts

[14] Exhibit 16, the surveillance video from 11 Flemington taken on January 25, 2012, shows five men: Javon Edwards, Awale Dirie, Brian Mensah, Brian Pich and Aman Ali approaching and then entering the building at 10:50:33 p.m. Mr. Dirie, who is wearing a black back pack, uses a key to open the door and enter. He is followed by Mr. Edwards who is talking on his phone. Mr. Edwards is followed by Mr. Mensah who is drinking from a bottle. Mr. Dirie and Mr. Mensah go upstairs. Mr. Mensah is followed through the door by Mr. Pich and then Mr. Ali. Mr. Ali is also carrying a bottle. Mr. Edwards, Mr. Pich and Mr. Ali go downstairs after entering the building. At 10:54 p.m. Mr. Mensah and Mr. Dirie are shown on the video going downstairs in the same direction as Mr. Pich, Mr. Ali and Mr. Edwards.

[15] There was an Agreed Statement of Fact entered as Exhibit 34 at trial. It sets out a list of 30 agreed facts with respect to events surrounding the arrest of Mr. Edwards and others at 11 Flemington. The Agreed Statement of Fact is attached as Appendix A to these reasons. I rely on all of those facts but will summarize only some of them and those are the following:

• The 911 call from the restaurant was placed at 9:54 p.m. It takes about 6 to 7 minutes to drive from the Lobster Trap restaurant to 11 Flemington.

• From each of the five men charged in the robbery the police seized the following money: from Javon Edwards, $110 Cdn. (one $100 bill and two $5 bills); from Mr. Ali, $820 Cdn; from Awale Dirie, $115 Cdn; from Brian Mensah, $65 and from Brian Pich, $50 Cdn, $1US and $1,100 Rupees.

• In addition to the money noted above, a 100 Yuan note was found by police between the buttocks of Mr. Pich when he was searched following his arrest.

• Approximately 1,000 to 2,000 Yuan was stolen from Shaoquing Lei in the robbery. Also taken from Ms. Lei were some US dollars and about $170 Cdn. From Hao Wu the robbers took about $1,200 Cdn. Approximately $750 Cdn in cash was taken from the till of the restaurant.

• Mr. Dirie lived in the building in apartment 208. A black knapsack that belonged to Mr. Dirie was found in an abandoned storage locker #204 in 11 Flemington. It contained a black Prada wallet. Two BB guns were found nearby.

• Mr. Ali, Mr. Mensah and Mr. Edwards all lived near 11 Flemington. Mr. Pich lived in Mississauga. Mr. Edwards lived a very short distance from 11 Flemington. It would not take more than a few minutes to walk from Mr. Edwards’ residence to 11 Flemington.

• Mr. Pich’s car was located near 11 Flemington and contained a green bandana on the rear driver’s side floor and two kitchen knives with black handles in the compartment on the passenger side door.

[16] The clothing of the five men charged with the robbery at the time of their arrest is set out in detail in the Agreed Statement of Fact. The only somewhat unusual article of clothing was the black and grey checkered hat with ear muffs worn by Mr. Ali.

(ii) Evidence of Police and TCHC Constables

[17] P.C. Strilec and P.C. Doyle attended at 11 Flemington, Unit 102 at about 11:05 p.m. on January 25, 2012. They had been flagged down by two Special Constables who had received a complaint about people in an unoccupied unit.

[18] When the two police constables and the special constables first arrived they were unable to get into the unit. They went outside and saw two men leave through the window. Both men were black. Neither was apprehended. A third man was in the process of leaving through the window and then went back inside.

[19] P.C. Strilec and a TCHC Constable entered the unit while P.C. Doyle chased one of the men who escaped through the window and another TCHC Constable stood by at the window.

[20] P.C. Strilec entered the unit just after 11:09 p.m. He testified that a TCHC constable already had three men pinned on the ground near the entryway. He saw that there were a number of men ‘running around’ the unit.

[21] P.C. Strilec saw a male he later identified as Javon Edwards leaving the first bedroom and going towards the washroom. P.C. Strilec testified that he saw the man enter the bathroom and stand facing the toilet. He saw the man’s upper body moving but could not tell what he was doing. P.C. Strilec yelled at him to get out of the washroom. Mr. Edwards left and went back to the first bedroom.

[22] P.C. Strilec walked past the first bedroom to the second bedroom. He looked into the first bedroom as he walked past and saw people in the bedroom. After he looked quickly in the bedrooms his escort, P.C. Doyle, arrived. They yelled at everyone to come in to the living room. P.C. Strilec stayed in the living room while P.C. Doyle went to check the bedrooms. P.C. Strilec heard P.C. Doyle yell ‘get out of the closet’. P.C. Strilec went to the first bedroom and saw P.C. Doyle struggling with a man later identified as Javon Edwards. P.C. Strilec saw money on the floor and on the shelf of the closet. He saw three cellphones stacked on the shelf near the rear corner. P.C. Strilec took the phones and stacked them on the window ledge of the bedroom.

[23] P.C. Strilec testified that after the people in the living room were placed under arrest by P.C. Doyle, P.C. Strilec went into the washroom. He saw a bottle of Bacardi rum. He checked the toilet tank and saw two cellphones in the tank of the toilet. P.C. Strilec testified that at the point that he saw the cell phones, Mr. Edwards was standing near the door to the washroom and took the cell phones out of the tank. P.C. Strilec agreed that Mr. Edwards was handcuffed with his hands behind his back, but that he was able to remove the phones. P.C. Strilec put the phones on the window ledge in the first bedroom with the other property.

[24] TCHC Constable Tomczyszyn testified that he and a police officer entered the unit together. He testified that he went left towards the kitchen and the police officer went right towards the hallway that led to the bedrooms and bathroom.

[25] Constable Tomczyszyn testified that shortly after entering the apartment he heard a scuffle in the bedroom. He went into the bedroom and saw a police officer making an arrest. He saw money on the shelf and the floor of the open closet. The officer left the room with the arrested man and Constable Tomczyszyn took the money from the closet and stacked it on the window ledge. Constable Tomczyszyn remained in the bedroom with the money until he was asked to stay with the arrested man in the second bedroom.

[26] P.C. Doyle testified that when he arrived in the apartment there were about 12 men walking around the apartment. He and P.C. Strilec ordered them into the living room and P.C. Doyle went to check the bedrooms. He heard noises from the closet in the first bedroom. He yelled, ‘police ‑ whoever is in the closet, come out’. He entered the bedroom and approached the closet. He testified that Javon Edwards was in the closet. He was slightly hunched over and his hand was reaching up towards the shelf of the closet. P.C. Doyle saw money on the floor of the closet and on the top shelf. After a short struggle, he arrested Mr. Edwards and placed handcuffs on him. P.C. Doyle took Mr. Edwards to the second bedroom and read him his rights and performed a pat down search. P.C. Doyle returned to the living room to place the other men under arrest and then returned and remained with Mr. Edwards. At a later point P.C. Doyle asked a TCHC constable to stay with Mr. Edwards.

[27] Four cellphones were found in the heaters in the living room.

[28] The nine phones located in the apartment corresponded with the phones stolen in the robbery.

[29] Located within the apartment were the following bottles of liquor: a 750 ml. bottle of Grand Marnier (in the entryway to the apartment); a ¼ full 40 oz. bottle of Bacardi dark rum (in the bathroom of the apartment) and a ¼ full 40 oz. bottle of Smirnoff vodka (in the second bedroom of the apar