ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-186
DATE: 20151023
BETWEEN:
Her Majesty the Queen
Mr. Michael Martin, for the Crown
- and -
Ronald Blair Alexander Eby
Ms Jill Gamble, for the Accused
Accused
HEARD: October 20, 21, 22, 2015
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] On May 26, 2015, someone robbed the Mac’s Convenience Store in downtown Owen Sound. There is no question about that – the video surveillance evidence speaks for itself. The robber was disguised. Cigarettes and money were stolen. Violence was used in that the clerk was assaulted by the much larger suspect. None of that is disputed. None of that could be disputed as we all watched the video in the Courtroom.
[2] Was it Mr. Eby? That is the factual issue to be decided.
[3] Mr. Eby was tried before me, without a jury, in Owen Sound on October 20, 21 and 22, 2015. I reserved my Judgment until today.
The Charges
[4] Ronald Eby is charged with robbery. The formal charge reads:
Her Majesty the Queen presents that Ronald Blair Alexander Eby, on or about the 26th day of May, 2015, Central West Region, did steal the sum of approximately $150.00 from John Kim, an employee of Mac’s Convenience Store located at 280 10th Street East, Owen Sound, and at the time thereof did use violence to John Kim, contrary to section 344(1)(b) of the Criminal Code of Canada.
[5] For the Court to find Mr. Eby guilty of robbery, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Ronald Eby stole money from the store;
ii. that Mr. Eby used personal violence on Mr. Kim; and
iii. that the personal violence accompanied the stealing.
[6] If I am not satisfied beyond a reasonable doubt of each of these essential elements, I must find Mr. Eby not guilty of robbery.
[7] If I am satisfied beyond a reasonable doubt of each of these essential elements, I must find Mr. Eby guilty of robbery.
[8] Ronald Eby is also charged with wearing a disguise with intent. The formal charge reads:
And further, that Ronald Blair Alexander Eby, on or about the 26th day of May, 2015, Central West Region, with intent to commit an indictable offence, did have his face masked, contrary to section 351(2) of the Criminal Code of Canada.
[9] For the Court to find Mr. Eby guilty of wearing a disguise with intent, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Ronald Eby had masked, coloured or otherwise disguised his face; and
ii. that Mr. Eby intended to commit an indictable offence while his face was masked, coloured or otherwise disguised.
[10] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of wearing a disguise with intent.
[11] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Eby guilty of the offence.
[12] Finally, Ronald Eby is charged with uttering a threat. The formal charge reads:
And further, that Ronald Blair Alexander Eby, on or about the 26th day of May, 2015, Central West Region, did by words knowingly utter a threat to John Kim to cause bodily harm to John Kim, contrary to section 264.1(1) of the Criminal Code of Canada.
[13] For the Court to find Mr. Eby guilty of threatening, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Ronald Eby made a threat;
ii. that the threat was to cause bodily harm to John Kim; and
iii. that Mr. Eby made the threat knowingly.
[14] If Crown counsel has not satisfied me beyond a reasonable doubt of each ofthese essential elements, I must find Mr. Eby notguilty of threatening.
[15] If I am satisfied beyond a reasonable doubt of each of these essential elements, I must find Mr. Eby guilty of threatening.
Presumption of Innocence
[16] Mr. Eby is presumed to be innocent of the charges. He has no burden of proof. That rests entirely with the Crown. The Crown must prove beyond a reasonable that the events that form the basis of the offences actually occurred and, more important in this case, that Mr. Eby was the culprit. It is not for Mr. Eby to prove that he was not involved in the robbery.
[17] The Crown must prove, beyond a reasonable doubt, each essential element of each charge.
Evidence of the Accused
[18] Mr. Eby did not testify at trial. The Defence called no evidence.
II. The Positions of the Parties
[19] The Crown argues that there is a constellation of factors existing here which amount to proof beyond a reasonable doubt that Mr. Eby is the person who robbed the store.
[20] It is submitted by the Crown that the police evidence concerning similarities between the accused and his footwear and the characteristics of the robber is compelling. Further, the evidence of the prosecution’s chief witness, Ms. Taylia Robson, who allegedly heard Mr. Eby confess to having committed the robbery and who allegedly saw items that he stole from the store, is generally credible and reliable.
[21] The Defence focusses on the evidence of Ms. Robson. In short, it is submitted that her story cannot be safely relied upon. She is not a reliable witness.
[22] Ms. Gamble argues that, although the Court may be satisfied that Mr. Eby is likely or probably the robber, the case for the prosecution falls short of proof of identity to the requisite standard of beyond a reasonable doubt.
III. Analysis
[23] This case is a one-issue proceeding: the identity of the robber.
[24] Ms. Gamble made it clear in final submissions that there is no dispute about whether the Mac’s store was robbed on or about May 26, 2015 – it was. There is no dispute that money was stolen. There is no dispute that violence was used against the clerk, Mr. Kim, when he was pushed up against the office door and had the arm of the suspect pressed against his neck area. There is no dispute that the robber had his face disguised or masked. There is no dispute that the robber uttered threatening words to Mr. Kim, twice: “don’t let me hurt you”.
[25] The store video and the evidence of Mr. Kim establish beyond a reasonable doubt every essential element of every charge on the Indictment, but for the identity of the robber. That is conceded by the Defence.
[26] The Court’s assessment of the identity of the robber comes down to three main pieces of evidence.
[27] First, we have the evidence of the store clerk, John Kim. Mr. Kim believes that the person who robbed the store is an Aboriginal male (“native” was the word used by Mr. Kim), tall and big. There is evidence that Mr. Eby is a First Nations person. He is certainly tall and big.
[28] Second, there is the testimony of Taylia Robson. She was living in a motel with the accused at the material time. She states that she saw money and cigarettes from the robbery within hours of it occurring. She states that Mr. Eby effectively confessed to her that he had committed the robbery.
[29] Third, we have the video surveillance evidence from the store that was robbed as compared to the police observations of Mr. Eby and his footwear. It is alleged that the suspect in the video and the accused are similar in their walking styles and size. It is further alleged that the shoes worn by the accused when he attended at the Owen Sound Courthouse to be remanded in to custody after his arrest and which were later seized by the police are similar to those worn by the culprit in the surveillance video.
[30] The Owen Sound Police Service conducted a very competent investigation in this case. The leadership of Detective Sergeant Fluney and Detective Constable Matheson led to the accumulation of a significant amount of evidence against the accused. Their doggedness led to an arrest when, at first blush, it seemed to be an impossible case to solve.
[31] Is it enough? Am I sure that it was Mr. Eby who robbed the store?
[32] There is no doubt that Mr. Eby is similar in size to the robber. I can see that for myself, and I accept the evidence of the police (Detectives Robertson and Matheson) on that point.
[33] Further, I accept the evidence of the police (Detectives Robertson and Matheson) that Mr. Eby walks in a manner similar to the gait of the robber in the store video - with locked knees and pigeon-toed. The police made rather lengthy observations of Mr. Eby walking in the downtown core of Owen Sound not long after the robbery occurred.
[34] The Defence takes no issue with the admissibility of that police evidence. Clearly, the police are entitled to give those opinions. R. v. Graat, [1982] S.C.R. 819 (S.C.C.), at page 12; R. v. Hill, [1986] O.J. No. 1206 (C.A.), at page 4; R. v. Tainsh, [2015] O.J. No. 5194 (C.A.), at paragraphs 3 and 7.
[35] In addition, I accept the evidence of Mr. Kim that the robber had a look around his eyes of someone who could be a First Nations person. We know from the Indian status card found in Mr. Eby's wallet, post-arrest, that he is of Aboriginal heritage.
[36] I also accept the evidence of the police that the shoes worn by Mr. Eby when he was being remanded in to custody at the Owen Sound Courthouse, post-arrest, are quite similar to those worn by the culprit, even to the very fine point of having pull tabs on their backs that are dark coloured with a lighter stripe in the middle of the tabs.
[37] Again, the Defence takes no issue with the admissibility of that police evidence.
[38] Mr. Kim described the robber as being a male of a certain age range that is consistent with Mr. Eby, and a height that is consistent with Mr. Eby, and an overall size and build that is consistent with Mr. Eby, and a belly shape that is consistent with Mr. Eby’s appearance in the Salvation Army thrift store video (dated very shortly after the robbery). That evidence of Mr. Kim in terms of the physical appearance of the robber is consistent with the observations of the police during their surveillance of Mr. Eby not long after the robbery occurred.
[39] All of that combined, however, as candidly acknowledged by Detective Constable Matheson in cross-examination at trial, would not have provided reasonable and probable grounds to even arrest the accused, never mind proof beyond a reasonable doubt.
[40] How much does the evidence of Ms. Robson add to the equation? The Defence submits very little because, although she was not deliberately lying to the Court, her memory is so cloudy that her evidence is unreliable.
[41] According to Ms. Robson, when she woke up in her motel room one morning, Mr. Eby was there. She observed several coins on top of the fridge. She observed several packages of cigarettes inside the fridge. The money and the cigarettes were not there the night before. Mr. Eby confessed to her that he had robbed the Mac’s store located in the downtown of Owen Sound.
[42] There are some frailties to the evidence of Ms. Robson which make me pause.
[43] First, Ms. Robson was a crystal methamphetamine addict in May 2015. At the time of the robbery, she had recently binged on the substance. With some prodding, she eventually admitted in cross-examination at trial to being somewhat foggy back then. Quite frankly, her overall demeanour and frequent hesitancy in the Courtroom suggests that she was also struggling with her memory when she testified at trial. It must be mentioned that this event was not long ago. This matter came to trial at a remarkably quick pace. The robbery was less than five months ago. In the circumstances, Ms. Robson demonstrated at trial a relatively poor recollection of some of what occurred back in late May 2015.
[44] Second, Ms. Robson's evidence was inconsistent in some material respects. For example, in cross-examination at trial, Ms. Robson first denied that her mind was foggy on May 26, 2015 because of the substance use. Shortly afterwards, still in cross-examination, the witness admitted to being somewhat foggy and confused at that time. As another example, the most significant one by far, in direct examination at trial, Ms. Robson indicated that she first saw the clothes worn by Mr. Eby during the robbery when they were in the garbage in the motel room. In cross-examination, she indicated that the accused was still wearing the clothes when she saw them. As a third example, in her police statement given on June 13, 2015, Ms. Robson told the officer that she was “like, drunk” on May 26, 2015. In cross-examination at trial, however, she denied passing out from alcohol and/or drugs but rather simply from being tired as she was coming down from a meth binge. It does not make sense to me that someone would use the word “drunk” to describe a state of sleepiness.
[45] Third, it is clear that Ms. Robson did not report the alleged confession by Mr. Eby to the police until she was confronted once in custody herself, weeks later. It matters not that she had been arrested on something unrelated. The fact is that she did not go to the police with what she claims was unequivocal proof that the man living with her, temporarily, had robbed a local store. She was abusing substances in the meantime, to the point of being hospitalized. These things, standing alone, make me concerned about Ms. Robson’s veracity.
[46] Fourth, the ability of Ms. Robson to make quick and accurate observations seems to be limited, in certain situations. For example, at trial, she was asked by the Crown to watch a video of the interior of the Salvation Army thrift store in Owen Sound, dated shortly after the robbery. Ms. Robson was directed to watch to see if she saw someone recognizable. The large video screen was positioned just a few feet from the witness box. When two persons were clearly seen entering the store, two persons who were in fact Ms. Robson herself and Mr. Eby, the witness said nothing. Only later did she confirm that those two persons clearly seen in the video are her and the accused.
[47] I have some sympathy for Ms. Robson. She came to Court and answered all of the questions put to her. She was polite and appeared to be trying hard to do her best to assist the Court. She is a young lady who has been through a lot. I do not think that she is out to frame the accused or to deliberately lie to the Court. In fact, she has no animus at all towards Mr. Eby or any motive to fabricate evidence against him. In isolation, she is most certainly not, though, an ideal witness.
[48] I must not look at the evidence piece-meal, however. The totality of the circumstances must be assessed; the similarities between the robber and the accused cannot be viewed in isolation from the evidence of Ms. Robson. Further, the evidence of Ms. Robson cannot be divorced from what we know to be true from the other evidence at trial.
[49] There is an overwhelming amount of undisputed evidence that corroborates the testimony of Ms. Robson.
[50] First, I accept the undisputed evidence of Mr. Kim that mainly one dollar and two dollar coins were stolen during the robbery. It turns out that Ms. Robson described seeing rows of one dollar and two dollar coins in the motel room when she woke up, which coins were not there the night before. Ms. Robson was consistent and unequivocal on that point.
[51] Second, I accept the undisputed evidence of Mr. Kim and can see for myself in the store video that the robber wore a bandana to mask his face. It turns out that Ms. Robson testified that Mr. Eby told her that he wore a bandana when he robbed the Mac’s store the night before. Ms. Robson was consistent and unequivocal on that point.
[52] Third, I accept the undisputed evidence of Mr. Kim that Player’s Rich regular size cigarettes, among others, were stolen during the robbery. It turns out that Ms. Robson smokes that brand of cigarette. It is clear from the store video that the robber was not grabbing cigarettes indiscriminately. He was looking for something in particular. Further, it turns out that Ms. Robson testified that one of the brands of cigarettes that she observed in the fridge of the motel room was Player’s Rich, regular size, which cigarettes were not there the night before. Ms. Robson was consistent and unequivocal on those points.
[53] Fourth, Mr. Kim is a very small, young-looking, Asian-looking man. It turns out that Ms. Robson testified that Mr. Eby told her that the clerk was a “little Asian kid”. Ms. Robson was consistent and unequivocal on that point.
[54] Fifth, the store video evidence is clear that Mr. Kim put up no resistance during the robbery, was exceptionally calm and essentially stood near the robber during the theft. It turns out that Ms. Robson testified that Mr. Eby told her that the clerk just stood there during the robbery. Ms. Robson was consistent and unequivocal on that point.
[55] Faced with what could not possibly be a series of coincidences, in her typical esteemed advocacy manner, Ms. Gamble opines that perhaps Ms. Robson learned those details from someone else, the true robber, but not from Mr. Eby. With respect, I cannot accept that speculative argument.
[56] Having considered the entire package, the puzzle is complete. The overwhelming corroborative evidence more than compensates for any imperfections in the testimony of Ms. Robson, standing alone.
[57] Ms. Gamble is correct that there is an important distinction between proof beyond a reasonable doubt and proof of probable or likely guilt. As Courts used to tell juries routinely, the former is closer to absolute certainty than it is to proof on balance.
[58] On the totality of the evidence, I am satisfied beyond a reasonable doubt that it was Mr. Eby who wore a disguise and robbed the store, stealing money and cigarettes, exerting violence against the clerk and threatening him in the course of the episode.
[59] Despite Ms. Gamble’s very able submissions, I am sure that Mr. Eby is guilty.
IV. Conclusion
[60] For all of the foregoing reasons, I find Mr. Eby guilty on all counts.
Conlan J.
Released: October 23, 2015
COURT FILE NO.: CR-15-186
DATE: 20151023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Ronald Blair Alexander Eby
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: October 23, 2015