COURT FILE NO.: CR-15-70000554-0000 DATE: 20160812

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JAMES MacADAM

Counsel: Yeshe Laine, for the Crown Julia DeFilippis, for the accused

HEARD: August 2, 3, & 5, 2016

S.A.Q. AKHTAR J.

REASONS FOR JUDGMENT

Introduction

[1] The accused James MacAdam stands charged with the counts of Robbery, Aggravated Assault and Failing to Comply with Probation. The charges stem from an incident occurring at St Clair Flowers, 2781 St. Clair Avenue East, in Toronto, situated at the intersection of St. Clair Avenue East and Rexleigh Drive. The victim in this case, Hristo Velev was hit on the head from behind causing him to fall to the floor and lose consciousness. When he came to, he found that his wallet had been stolen.

[2] The facts underlying the charges of Robbery and Aggravated Assault are largely undisputed. The sole issue in this case is that of identification i.e. was the accused the person who attacked Mr. Velev?

[3] Ms. Laine, for the Crown, relies upon the direct identification of the accused by two Crown witnesses and circumstantial evidence obtained after the accused’s arrest to demonstrate his guilt. Ms. De Filippis, for the defence, submits that the identification evidence tendered by the Crown is so unreliable that it cannot be considered. She further argues that the evidence garnered after Mr. MacAdam’s arrest has alternative innocent explanations and should not be taken to corroborate the Crown’s case.

The Witnesses

Hristo Velev

[4] On 3 October 2014, Mr. Velev and his wife, Mariana Beneva, paid a visit to St. Clair Flowers to purchase some flowers for friends with whom they were having dinner. They arrived at some time between 6:15 and 6:20 pm, and parked on Rexleigh Drive, just opposite the rear of the flower store and facing away from St. Clair Avenue East. Mr. Velev alighted the car and headed to the flower store alone, leaving his wife in the car.

[5] Going into the flower shop through the rear entrance, Mr. Velev met a stranger who appeared to be leaving the store. Mr. Velev said “Hi” to this man but received no response. After purchasing some flowers and conversing with the shop’s owner, Mr. Velev, holding his wallet in his hand, began to make his way back to his car through the rear of flower shop. As he did so, he noticed the man that he had previously encountered standing between the shelving units of the flowers on display.

[6] Walking towards his car, Mr. Velev heard the sound of someone running rapidly behind him and, as he turned, he was hit on the left side of his head behind his ear. Mr. Velev believed his assailant used his hand to strike him and believed his attacker to be the same man that he had seen moments earlier amongst the flower shelving units. The force of the blow resulted in Mr. Velev falling to the ground, striking his head on the floor and losing consciousness.

[7] When he awoke, he was helped to his feet by an unknown man, and his attacker was nowhere to be seen. Mr. Velev’s wallet was also missing and never found by the police in their investigation of the incident. Mr. Velev testified that the wallet contained approximately $100: four or five $20 bills and two to three $5 bills.

[8] Mr. Velev described the man who had assaulted him as a white male approximately 1.8 metres tall, between the ages of 30-35, with a build larger than his own slim stature. The assailant had wavy hair that was “brownish blonde”, the length of which lay between his ear and shoulder and was wearing a dark jacket. In cross-examination, Mr. Velev said that he could not recall whether the jacket was brown or black. When shown a photo line up by the police, however, Mr. Velev failed to pick out any individual as the person who attacked him.

[9] An ambulance was called and Mr. Velev was taken to hospital where a cut on his head sustained as a result of his fall, required staples. A medical examination, however, revealed that his injuries were far more serious and that he had suffered bleeding in his brain. Mr. Velev remained in hospital for eight days receiving treatment.

[10] As part of an Agreed Statement of Facts, the parties agree that Mr. Velev sustained the following injuries as a result of the blunt force trauma received during the robbery:

1. Mr. Velev suffered a moderate amount of subarachnoid haemorrhaging overlying the frontal temporal regions, bilaterally. He also suffered mild right subdural haemorrhaging. These injuries are commonly referred to as bleeding in and around various areas of the victim’s brain.
2. Mr. Velev suffered a fracture to the right parietal bone that extends to involve the right frontal bone and the lateral wall of the right orbit. These are the bones on the rear and top right side of Mr. Velev’s head, and those that lead down the front of his head towards his right eye.
3. Mr. Velev furthered suffered an eight cm laceration to the right side of his head. He received staples to close this wound.
4. Mr. Velev remained in the hospital between the 3rd of October and the 11th of October, 2014, under observation, until the bleeding in his brain had subsided.

[11] There is no dispute that these injuries would fall within the meaning of s. 268(1) of the Criminal Code, R.S. 1985, c. C-46, and would constitute the type of injury required to establish Aggravated Assault.

[12] In cross-examination, Mr. Velev admitted that there were gaps in his recollection and that he was unable to remember every single detail of the attack. However, he denied any confusion in the facts that he could remember and insisted that the greatest impact on his memory was after the attack. For example, he could not remember how he got back to his car or when the ambulance arrived at the scene. He maintained, however, that the man seen at the rear of the shop in between the shelving units was the same man that he had met when entering the flower store.

Mariana Beneva

[13] Ms. Beneva, sitting in her car, saw her husband enter St. Clair Flowers by the rear door and did not see her husband again until after the robbery had taken place.

[14] Her attention, however, was caught by a man who came from the parking area situated at the rear of the store and in front of the flower shelving units. She recalled that he appeared to be wandering around aimlessly as if he were lost. The man looked nervous and tense, and approached her car looking in her direction. She returned his gaze and saw him come around the van, pass it and continue in the direction of St. Clair Avenue East. She checked her side mirror and was unable to see him on the side walk. Three to four minutes later, she saw the same man as he stood in an alleyway beside the flower shop. A few seconds later, he disappeared. Ms. Beneva said she saw this man a third and final time, a few minutes later, running very fast on the sidewalk, crossing Rexleigh Drive in front of her car and turning right onto Glenwood Crescent.

[15] Shortly afterwards, Ms. Beneva saw her husband emerge from the parking area near the flower store. He had blood on his head and hands, and she could see a bump on the right side of his head. Ms. Beneva testified that the blood, however, was coming from the other side of his head.

[16] On 8 October 2014, Ms. Beneva was shown a series of twelve photographs and asked if any of them contained the man she saw on Rexleigh Drive on 3 October 2014. She initially selected Photograph 9 but when shown Photograph 11 she told the police that her first identification had been an error and that the man on Rexleigh Drive was the man in Photograph 11. There is no dispute that Photograph 11 is a picture of the accused, James MacAdam. At trial, Ms. Beneva also performed an in-dock identification confirming the accused as the man she had seen on the day of the robbery.

Yujan Li

[17] Mr. Li was working at St. Clair Flowers on 3 October 2014. He dealt with Mr. Velev prior to the assault and was the person who contacted the police after being notified of the robbery.

[18] Earlier, Mr. Li had seen a male come into the store and stand by the counter. When Mr. Li enquired as to what the male wanted, he received no response. The male left the store but returned five to ten minutes later. Mr. Li once again asked him what he was looking for and the male replied that he wanted to buy some roses. After being told that the roses were kept in the flower cooler, the male left. Mr. Li described the male as white, between the ages of 25-30, 1.73 metres tall, big build weighing approximately 200 pounds, with brownish blonde hair. Mr. Li also testified that the male was wearing a spring jacket and a carrying a backpack although he could not remember the colour of either item.

[19] Mr. Li saw and spoke to Mr. Velev before he was robbed. Shortly thereafter, he testified that another unnamed customer brought Mr. Velev back into the store and the police had been called. Mr. Li, too, was shown a photo line up but like Mr. Velev, he was unable to identify the male that he saw. At trial, however, when asked whether he saw the male in court, he pointed to the accused.

[20] In cross-examination, Mr. Li appeared to agree with the suggestion that the male’s hair was brown but in re-examination he clarified that it was more of a combination of blonde and brown.

Police Constable Joshua Berry

[21] At approximately 6.30 pm, PC Berry received a radio call that a robbery had taken place at 2781 St. Clair Avenue East. He drove northbound on O’Connor Drive and approaching the intersection with St. Clair Avenue East, turned right on Glenwood Crescent to avoid heavy traffic and get to the flower shop more expeditiously.

[22] As he drove eastbound on Glenwood Crescent, he noticed a white male, approximately 6-foot-tall, weighing 210 pounds with shoulder length, wavy, dirty blonde hair. The man was wearing a white plaid shirt and jeans in addition to carrying a beige and green backpack. PC Berry stopped the man as he matched the description of the person who had robbed Mr. Velev. The man that he had stopped was the accused, James MacAdam. PC Berry told the court that there were no other people or vehicles in the area.

[23] PC Berry observed that Mr. MacAdam was out of breath as if he had been running and also appeared to shaking nervously. PC Berry testified that Mr. MacAdam immediately pulled out a packet of cigarettes and began to smoke. The officer also noted that he had fresh cuts on his left hand, specifically the nails of his ring finger and pinkie in addition to a cut near the knuckle of his left ring finger. Mr. MacAdam also had mud on his shoes and jeans.

[24] Upon arrest, Mr. MacAdam was searched. The cigarette package was found to have blood on it. A wallet containing identification and credit cards belonging to Mr. MacAdam was found in his rear left jeans pocket. In his right rear side pocket was a sum of money: four $20 bills and three $5 bills.

[25] At the close of the Crown’s case, the defence indicated that it had no evidence to call.

The Identification of the Accused

The Legal Principles Surrounding Eyewitness Identification

[26] As indicated, there is but one issue in this case: was the accused, James MacAdam, the man who robbed Mr. Velev?

[27] Mr. Li identified Mr. MacAdam as the person inside his store moments before the robbery took place. Ms. Beneva was certain that he was the man she saw acting suspiciously on Rexleigh Drive moments before the robbery and running down Glenwood Crescent a short time later.

[28] Eyewitness identification requires a special scrutiny before providing the basis for a conviction. The law is replete with miscarriages of justice where persons are wrongly convicted because of mistaken identification. Witnesses may honestly believe in the correctness of their identification but still be wrong. As a result, when the Crown’s case depends entirely or substantially on eyewitness identification, the law requires me to closely examine the circumstances in which the identifying witnesses made their observations before providing the police with an identification: see R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, 1996 SCC 213, [1996] 2 S.C.R. 461, at pp. 461-62; and R. v. Burke, 1996 SCC 229, [1996] 1 S.C.R. 474, at p. 498.

[29] What is central to the question of eyewitness identification is the reliability of the identification rather than the credibility of the witness providing the identification: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 14; and R. v. Ollife, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 37. A court must consider issues such as the familiarity of the suspect to the witness, the conditions under which the witness observed the suspect, whether the identification was made in stressful circumstances, and the length of time that the witness had to make their observation.

[30] Of the three civilian Crown witnesses only Mr. Velev was unable to provide any form of positive identification. Mr. Li was unable to pick out any individual from the photo line up but, as mentioned, performed an in-dock identification of the accused as the man he had seen in his store. However, I place no weight on this evidence. In-dock identifications have been discredited for obvious reasons: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 49-51; and R. v. Tebo (2003), 2003 ONCA 43106, 172 O.A.C. 148 (C.A.) at para. 19.

The Circumstances of Identification

Mr. Li and Mr. Velev

[31] Mr. Li’s description of the man that he had seen in the flower shop loosely correlated to the description given by Mr. Velev and Ms. Beneva of the man that they had seen. However, I found Mr. Li’s evidence to be inconsistent and confused. He claimed the man seen at the counter was 1.73 metres, considerably shorter than the description given by Mr. Velev and Ms. Beneva and, more significantly, than the accused’s actual height. He also testified that the man was wearing a spring jacket and backpack although he could not remember the colour of either.

[32] Mr. Li’s evidence with respect to the male’s appearances in the flower shop was also inconsistent. He initially told the court that he saw and spoke to Mr. Velev between the two appearances. Shortly afterwards, he changed his evidence and claimed that Mr. Velev arrived after the male had left the second time. Finally, he gave evidence that the male left the store using the front entrance which would have meant that the male could not be the same person that Mr. Velev met when he entered the shop by the rear entrance.

[33] Although the Crown urges me to find that that the man seen by Mr. Li was the accused, I am unable to do so. It may well be that the male that Mr. Li encountered was Mr. MacAdam. However, Mr. Li’s evidence is too vague and conflicted for me to make that determination.

[34] Mr. Velev, on the other hand, was candid about being unable to identify his assailant. He maintained, however, that the person he saw between the flower shelves was the same man he had met minutes earlier when entering the flower shop.

[35] Mr. Velev’s interaction with the accused, the daylight conditions and the short passage of time between the two encounters leads me to accept that Mr. Velev was correct in this regard.

[36] Both Mr. Velev and Ms. Beneva testified as to the dearth of people in and around the flower shop area. It is clear from the exhibits depicting the area surrounding St. Clair Flowers that, in order to exit the shop and return to his van, Mr. Velev would have had to have turned his back on the shelving area. It is therefore reasonable to infer that Mr. Velev was hit from behind by the man he saw standing in that area. I would add that although Mr. Velev was unable to positively identify his assailant, his description does not exclude the accused.

Ms. Beneva

[37] Ms. Beneva testified that she saw the man on three occasions in the early evening of 3 October 2014. The first was moments after her husband left the car and her attention was drawn to a white male who appeared nervous and tense. He was wandering around as if he was lost and approached Ms. Beneva’s car looking in her direction a few times. The man’s appearance so disturbed Ms. Beneva that she locked the doors of her car as he approached for fear that he might want to enter the vehicle.

[38] The man came around the car, passing it and walking in the direction of St. Clair Avenue. However, when Ms. Beneva looked in the passenger side mirror to check his whereabouts she was unable to see him on the sidewalk.

[39] Ms. Beneva saw the man for a second time, four to five minutes later, behind some bushes beside the parking area of the shop. Ms. Beneva testified that she could see the side of his body for only a few seconds and could definitely make out the same hair colour and shape.

[40] Two or three minutes later, Ms. Beneva saw the man running down the sidewalk, crossing Rexleigh Drive in front of her car and turning right down Glenwood Crescent.

[41] Ms. Beneva described the man as a white male in his early 30s, having dark blonde wavy hair going down to the middle of his neck. She recalled him as being between 175 and 180 cm tall, well built, and wearing a grey or beige jacket.

[42] Ms. De Filippis argues that the circumstances surrounding Ms. Beneva’s sighting of the male fail to provide any of the reliable criteria of identification required in this case. Ms. De Filippis contends that Ms. Beneva’s view of the male was fleeting and that her initial suspicions caused her to view each sighting in a biased manner leading her to believe, wrongly, that she was seeing the same man on each of the three occasions.

[43] With respect, I do not share that view. Ms. Beneva’s observations took place when it was still daylight and no one else was present. The only other people in the area were two men some distance away at the corner of St. Clair Avenue East. Ms. Beneva testified that there was no traffic or any other obstruction barring her observations. She saw the male approaching her directly and met his gaze on at least three occasions. Although it was put to her, in cross-examination, that she averted her eyes due to her fear and discomfort, she insisted that this only happened on the last occasion that he looked at her.

[44] Ms. Beneva saw the man for approximately four seconds whilst he was directly in front of her at a distance of four to five metres away. Although one could argue that Ms. Beneva was stressed, there is no doubt that she was sufficiently alert and able to observe him clearly. The male’s suspicious behaviour and Ms. Beneva’s fears for her safety drew her attention to him and, if anything, would have made him more conspicuous to her.

[45] Finally, Ms. Beneva’s three sightings of the man all took place in a very short space of time. I reject any notion of bias in her judgment. Instead, I find that she had every reason to remember him from the first encounter which so disturbed her.

[46] For these reasons, I am satisfied that Ms. Beneva did see the same man on each of the three occasions on 3 October 2014. I am also satisfied that, in the circumstances of this case, Ms. Beneva’s opportunity to observe the man was sufficient to make a reliable identification when shown the photographic line up.

The Photo Line Up

[47] At the outset, the defence conceded that there was no procedural impropriety with respect to the police line up shown to Ms. Beneva on 8 October 2014. The line up was sequential, made up of similar looking males, had been videotaped and complied with the recommendations of the Sophonow Inquiry (Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) (Winnipeg: Manitoba Justice, 2001)). Ms. De Filippis, however, urges this court to discard the line up evidence because it was compromised by Ms. Beneva’s selection of two of the photographic candidates. She further argues that, in selecting the accused, Ms. Beneva’s hesitation in identifying Mr. MacAdam demonstrated her lack of confidence in that choice.

[48] Having reviewed the recording of the identification procedure several times, I do not agree. When Ms. Beneva picked Photograph 9, she hesitated and told the supervising officer that “I think it’s this guy”. When asked to explain her choice, Ms. Beneva said that it was because “he has something in his eyes” and that he was staring at her the same way. She added “I hope I’m right” signifying, in my view, some doubt about her selection. When shown Photograph 11 - the photograph of the accused - the difference could not be more clear. On seeing the photograph, Ms. Beneva immediately drew a breath and uttered “Oh that was the guy”. There was no hesitation in selecting Photograph 11 and when asked whether she was sure, Ms. Beneva checked the photograph again. In my view, this was not a sign of hesitation but one of caution to ensure that she had not made a mistake. At trial, Ms. Beneva was certain that Photograph 11 correctly depicted the man that she had seen.

[49] I pause at this juncture to remind myself of two important points. First, the confidence level of a witness in identifying a suspect is not a substitute for the reliability of that identification. As has been referenced in numerous cases, even an honest witness certain of their accuracy in identifying an offender can be wrong: see, for example, R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at p. 383; and R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 27. Secondly, the weight to be given to an identification is not a “constant” but varies with the circumstances of each case: Miaponoose, at p. 452; and R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 91. The point is that Ms. Beneva’s certainty that she had picked out the man that she had seen, whilst relevant, should not be given undue weight.

[50] Turning specifically to Ms. De Filippis’s arguments, I do not find the fact that Ms. Beneva selected two different photographs to be fatal to her identification. The Sophonow procedure allows for this type of mistake: see for example, Pelletier. The weight to be given to the identification depends, in part, on her explanation and why the later selection was preferred. I accept Ms. Beneva’s explanation that she was confused or as she put it, “her brain tricked her”. She was doing her best to identify the man she saw and picked out someone similar. After seeing the second photograph, she immediately realised that she had made an error and rectified it.

[51] I also reject Ms. De Filippis’s contention that, at trial, Ms. Beneva contradicted her identification by agreeing with the suggestion that the man she had seen had a “round” face. Ms. De Filippis points to the accused’s visage as being oval. However, it was clear to me, watching Ms. Beneva testify, that her first language was not English and that she took the word “round” as being a synonym for “big”. When agreeing with Ms. De Filippis, she repeatedly pointed to the photograph of the accused illustrating she agreed only that the visage was big.

The Clothing

[52] That being said, Ms. De Filippis raises two issues that negatively impact on the weight to be given to Ms. Beneva’s identification evidence.

[53] First, she argues a lack of specificity with respect to Ms. Beneva’s initial report of the man she saw other than the general description of the race, height and weight of the man seen. The only distinct feature offered by Ms. Beneva was the colour, length and style of the man’s hair. This type of generic identification could apply to a large number of individuals.

[54] Secondly, Ms. Beneva described the accused as wearing a grey or beige jacket and made no mention of a backpack. As Ms. De Filippis points out, this does not accord with Mr. Velev’s description of the male in the flower shop wearing a dark jacket or the dark jacket found in the backpack that the accused was carrying when he was arrested.

[55] Ms. Laine responds that this discrepancy can be explained because Ms. Beneva saw the accused wearing the jacket with his hood down. The interior lining of the jacket is an orange beige colour which, argues Ms. Laine, could have misled Ms. Beneva into thinking the accused was wearing a lighter coloured jacket particularly when seen with his grey and green backpack.

[56] I accept that Ms. Beneva might not have seen the backpack as it is small and fits very close to the body. However, I reject the notion that Ms. Beneva was confused by the jacket’s hood and lining. This possibility was never put to Ms. Beneva when she testified. Moreover, Ms. Beneva said that she saw the accused from the front and the side which would have given her an opportunity to see the sleeves and front of the jacket and not just the hood or the back. It is more plausible that Ms. Beneva was focused on the suspect’s face and did not pay attention to his clothing, as she herself testified when giving evidence.

[57] Notwithstanding this explanation, the lack of specificity in Ms. Beneva’s description and her failure to identify the accused’s jacket and backpack reduces the weight to be given to her identification evidence.

The Evidence Found Upon Arrest

[58] Ms. Laine acknowledges the difficulties in Ms. Beneva’s identification but makes clear that the Crown’s case does not depend solely upon it. She points to the circumstances of PC Berry’s arrest of the accused and the items seized thereafter.

[59] The parties agree that Mr. Velev was robbed shortly before 6.34 pm at which point the police were called. PC Berry stopped the accused as he was walking westbound on Glenwood Crescent within minutes of the 911 call.

[60] Ms. Laine relies upon PC Berry’s observations of the accused’s demeanour and lighting up of a cigarette when stopped. The officer also testified, in cross-examination, that in his experience, persons that he approached did not usually behave in this manner. I agree with Ms. De Filippis, however, that nothing can be taken from the accused’s nervousness or smoking when PC Berry stopped him. The danger in drawing an inference from this type of demeanour evidence is that it relies solely on PC Berry’s subjective interpretation of the accused’s behaviour which may be equivocal: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 76; and R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. There is no universal form of reaction to being stopped by a police officer: a member of the public might well be nervous and agitated when detained by law enforcement.

[61] However, PC Berry’s testimony was not confined solely to demeanour evidence. He also provided evidence of the following:

• The accused’s breathlessness when stopped
• The cuts on the accused’s knuckle and finger nails
• The money found in the accused’s rear jeans pocket
• The TTC transfer ticket found in the accused’s backpack
• The damp dark hooded jacket found in the accused’s backpack

[62] I deal with each in turn.

The Accused’s Breathlessness

[63] PC Berry testified that after stopping the accused, he noticed that Mr MacAdam was out of breath as if he had been running. The location where the accused was arrested on Glenwood Crescent was a short distance from St. Clair Flowers. The officer in charge, Detective Anthony Taylor, testified that when he walked from this location to the flower shop, it took him approximately 8 minutes and 11 seconds. Moreover, PC Berry gave evidence that there was no one else present on the street and no traffic. The clear inference is that the accused was the man seen by Ms. Beneva running from Rexleigh Drive and down Glenwood Crescent.

The Cuts on the Accused’s Left Hand

[64] PC Berry noticed a number of cuts on the accused’s left hand: one near the knuckle of the ring finger and two just at the base of the nails of the ring finger and pinkie. I reject Ms. De Filippis’ interpretation of the cuts as resulting from the accused biting the base of his nails. The photographed injuries, depicted in Exhibit 13B, look as if they were caused by the accused’s hand coming into forceful contact with an object. This, of course, would be consistent with the accused striking the back of Mr. Velev’s head with his hand, as Mr. Velev had testified.

The Money Found in the Accused’s Rear Jean Pocket

[65] Two different items were found in the accused’s rear pockets. In the rear left pocket, the police found a wallet containing various pieces of identification and credit cards belonging to the accused but no cash. However, in the rear right pocket, were four $20 bills and three $5 bills: a denomination and an amount of money corresponding closely to those described by Mr. Velev as being in his possession before being attacked. The amount, the denominations, and the fact that the money was not stored in the wallet and kept in a separate pocket, leads to a reasonable inference that this was the money stolen from Mr. Velev a short time earlier.

The TTC Transfer Ticket

[66] The accused’s backpack also yielded a TTC transfer ticket dated 3 October 2014 for the 23 Dawes bus which begins its journey from the Main Street subway station. Ms. Laine tendered a TTC map detailing the route that the bus would normally take. The bus journey would start at Main Street and continue northbound on Dawes Road, westbound on Ferris Road before turning north on Rexleigh Drive. It would then return to Main Street by going eastbound along St. Clair Avenue East and southbound on Dawes Road.

[67] The route would take the 23 bus right in front of St. Clair Flowers. At trial, Mr. Velev identified, on Exhibit 2C, the location of the Rexleigh Drive bus stop, at the intersection of St. Clair Avenue East and Rexleigh. It can be seen as being a very short distance from St. Clair Flowers.

[68] The relevance of the ticket is twofold. First, it puts the accused in the immediate vicinity of St. Clair Flowers. Secondly, it refutes the argument put forward by Ms. De Filippis that it was possible that the accused might have come from the direction of the Taylor Creek wooded area via one of the streets branching off Glenwood Crescent.

The Jacket

[69] When PC Berry stopped the accused on Glenwood Crescent it was raining. Yet, the accused was wearing a white and green plaid shirt and had placed a dark hooded jacket inside the backpack that he was carrying. PC Berry testified that when the jacket was examined it was damp to the touch. Ms. Laine argues that the accused was wearing the jacket when he assaulted Mr. Velev and ran down Glenwood Crescent. She submits that prior to being stopped by PC Berry, the accused removed the jacket and placed it in his backpack in order to avoid being discovered.

[70] After the fact conduct should be approached with caution particularly if it is an equivocal piece of evidence which might be misused by the trier of fact and work an unfairness to the accused. This is not that type of evidence. It is a piece of circumstantial evidence used by the Crown to show that the accused committed the offence and took steps to avoid apprehension. As such, the evidence “is treated as any other circumstantial evidence. It is not to be considered in isolation, but together with the rest of the evidence in its entirety”: White, at para. 132.

[71] In assessing this submission, I look to potential other reasons for why the accused might have placed a wet hooded jacket in his backpack whilst rain was falling. I must confess that I am unable to find any. The dampness of the jacket leads me to infer that the accused was wearing it when the rain began to fall. It would make little sense to remove the jacket after the rain had started and place it inside the backpack whilst the jacket was still wet. It would make even less sense to remove the jacket whilst the rain was falling rather than continue wearing it.

[72] I conclude, when taking into account the evidence in its entirety, that the accused removed his jacket to avoid detection.

Conclusion on Identification

[73] Mr. MacAdam was stopped on Glenwood Crescent mere minutes after the offences had been committed. This was the very same street that Ms. Beneva saw the male she identified turn into when running across Rexleigh Drive. When arrested, the accused was in possession of virtually the same amount of money and denominations contained in Mr. Velev’s stolen wallet. Finally, the accused’s hands displayed signs of injury consistent with a punch to the back of Mr. Velev’s head.

[74] It might be possible to find alternative explanations for each individual piece of evidence obtained after the accused’s arrest. However, when the volume of evidence is looked at as a whole it forms a formidable body of circumstantial evidence pointing irresistibly to the guilt of the accused.

[75] Standing alone, Ms. Beneva’s direct evidence of identification may not have been enough to overcome the high threshold required to convict Mr. MacAdam of the offences for which he stands trial. However, when combined with the body of cogent circumstantial evidence that I have referred to, the case against the accused is proven beyond a reasonable doubt.

[76] Accordingly, I find the accused guilty of the counts of Robbery and Aggravated Assault.

[77] As was agreed by both the Crown and defence at the outset of the trial, a determination of guilt on those counts would automatically lead to a finding of guilt on the remaining count of Failing to Comply with Probation. A finding of guilt is therefore entered on that count.

S.A.Q. Akhtar J.

Released: