BRACEBRIDGE COURT FILE NO.: CR16-004
DELIVERED ORALLY: 20161021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TristanTaylor
Defendant
E. A. Carlton, for the Crown
C.R. Sheppard, for the Defendant
HEARD: September 12, 13, 14, 15 16, 19, 20, 21, 2016
VERDICT
MULLIGAN, J.:
[1] This matter proceeded as a judge alone trial on a four count indictment. Those counts relate to an allegation of an armed robbery at the IDA Pharmacy in Huntsville on March 3, 2015. Count one alleges that Tristan Taylor used a firearm, a handgun, to rob Allan Norton, the pharmacist, contrary to s. 344(a.1) of the Criminal Code of Canada (Code). Count two alleges that Tristan Taylor committed an assault on Allan Norton while using a weapon, contrary to s. 267(a) of the Code. Count three alleges that Tristan Taylor had his face masked with intent to commit an indictable offence, contrary to s. 351(2) of the Code. Count four alleges that Tristan Taylor was in possession of a firearm while he was prohibited from doing so by reason of a Court Order, contrary to s. 117.01(1) of the Code. All of these offences were alleged to have occurred on March 3, 2015.
[2] Mr. Taylor was represented by counsel throughout these proceedings. At the close of the Crown’s case, the defence elected not to call evidence. Prior to the trial beginning the Court dealt with applications brought by the Crown and defence and rulings were made.
Mr. Taylor’s arrest
[3] Mr. Taylor was arrested on March 4, 2015, the day after the alleged incident. He was arrested at a residence in Novar, a small community about ten kilometres north of Huntsville. After his arrest he was detained at the Huntsville O.P.P. Station and interviewed by Officer Muller. The interview was videotaped. Prior to the trial the Crown brought an application seeking to have the statement admitted into evidence as a voluntary statement. As part of the application the Crown called a number of O.P.P. officers to give evidence on a Voir Dire. The application seeking to have the statement admitted as voluntary was granted and both Crown and defence agreed that the Crown evidence called at the Voir Dire would form part of the evidence at trial.
Background
[4] Before reviewing in detail the evidence of various Crown witnesses, a brief overview of what is said to have occurred on March 3, 2015, will assist. Just before noon on March 3, 2015, an intruder forced his way into the dispensary area of the Huntsville IDA Pharmacy. The intruder was dressed in dark clothing with a hoody pulled down over his forehead. His face was masked with a scarf or similar object of clothing. He demanded opioids and when the pharmacist initially resisted, he struck the pharmacist across the forehead with a weapon which was held in his hand. Opioids were then provided to him in the form of full and partially full bottles from the opioid counter in the dispensary by the pharmacist. The pharmacist’s assistant observed the intruder who quickly left the area. The whole incident lasted about one minute. Video cameras captured images of the intruder, but no facial features were observed because of the masked clothing. The police arrived shortly thereafter and conducted a search and interviewed witnesses. A few witnesses stated that they thought they saw the intruder leaving the area moments later. One witness who was parked nearby came forward with information identifying Tristan Taylor as an individual who approached his car demanding a ride to Novar.
Mr. Taylor’s Statement
[5] On March 4, 2015, Tristan Taylor was interviewed by Detective Constable Andrew Muller while in custody at the O.P.P. Detachment. Earlier in the day he had been arrested at a residence in Novar. At that time he was read his rights and given an opportunity to speak to counsel. While at the detachment he spoke to counsel of his choice while in the cells. Later that evening he was interviewed. At the time of the interview Officer Muller provided this caution to Mr. Taylor:
Detective Muller: “Okay, now you realize you’re under arrest. You were read your rights. You talked to your lawyer, right?”
Tristan Taylor: “Mmhm, mmhm.”
Detective Muller: “Okay, you know you’re under no obligation to talk to me, really.” Tristan Taylor: “That’s right.”
Detective Muller: “But you know there’s two sides of every story. I haven’t heard what you have to say at all.”
Tristan Taylor: “I’m just here to listen. I have nothing to say”.
Later Detective Muller says: “This is a pretty serious crime, wouldn’t you say?”
Tristan Taylor: “I don’t even know. I don’t know anything about the crime yet.”…
Detective Muller: “Did you hear that there was even a robbery here in Huntsville?” Tristan Taylor: “No, I didn’t hear about it.”
Although Mr. Taylor asserted his right to remain silent, he did answer some questions about his whereabouts the previous day.
Detective Muller: “Well, do you mind telling me then where you were yesterday?” Tristan Taylor: “I was at home…
Detective Muller: “Could you vouch for that?”
Tristan Taylor: “Yeah, probably, actually my little brother. I was at his house most of the day…I was with him for a bit of the morning when I was on the phone with Welfare and whatnot…
[6] Mr. Taylor’s little brother or step-brother is Ryley Taylor, who was residing with his mother, Heather Branch, in Novar. The questioning continued:
Detective Muller: “How long were you at Heather’s [Branch] that day”?
Tristan Taylor: “I don’t know, until around noon or so and then I went home.”
Detective Muller: “Okay, who did you leave with?” Tristan Taylor, “It was a friend”.
[7] Mr. Taylor refused to provide the name of the friend. Detective Muller stated, “This is someone who’s going to maybe provide an alibi for you, for where you were yesterday. You’re only giving me an alibi ‘til noon, really, and potentially your little brother’s going to give you an alibi ‘til noon, after that, that’s it.” Later Detective Muller stated, “And if they got an alibi for you during the timeframe this happened, you’re – everything’s cool with you.” Tristan Taylor, “I guess. I don’t know.” Tristan Taylor later stated, “I’m not bringing anyone else into this, so I don’t really like – deal with in court, like you know.” Tristan Taylor later stated, “So, as far as the rest of the stuff goes and alibis and whatever, like, I can get my lawyer to do that in court.”
[8] Other than discussing his whereabouts the previous day, Mr. Taylor gave no inculpatory statements that would implicate him in the robbery the previous day. Mr. Taylor was not obligated to assist the police with their inquiries.
Identification Evidence
[9] The key issue in this case is whether or not the Crown has proven beyond a reasonable doubt that Tristan Taylor was the individual who committed the armed robbery of the Huntsville IDA Pharmacy. Because there was no clear identification of the intruder within the pharmacy, it is necessary to consider the evidence of all of the Crown witnesses that saw the intruder within the store or immediately thereafter. The evidence of one witness who saw Mr. Taylor in the vicinity shortly after the alleged occurrence is important in assessing the after the fact conduct of Tristan Taylor.
Agreed Statement of Facts
[10] An Agreed Statement of Facts provided that calls were made to 9-1-1 from the IDA Drugstore. The first call indicated a robbery in progress at 11:44:50 a.m. The second call at 11:45:15 a.m. from Allan Norton, the pharmacist, indicating that a robbery had occurred. Police records indicate that Tristan Taylor was 5’ 2.6” inches, weighed 96.8 pounds and was left handed. Further, he was subject to a Weapons Prohibition Order.
Allan Norton
[11] Allan Norton was the pharmacist on duty at the Huntsville IDA on March 3rd, 2015. He has been a pharmacist for 30 years. The store has a front door facing Main Street, as well as an exit to a laneway. The dispensary area is at the back of the pharmacy. It is cordoned off for the exclusive use of the pharmacist and pharmacist’s assistants. Access is through a counter level swinging door. Narcotics such as opioids in manufacturer’s bottles are kept in a locked cabinet below the counter. The doors are unlocked and left open during the workday.
The Pharmacy Location
[12] The pharmacy is located on Main Street East in Huntsville, bordered by Centre Street on one side and West Street on the other side. The back of the store leads to a laneway to Caroline Street which parallels Main Street. The next parallel street to the north beyond Caroline Street is Susan Street. Within the block between Caroline Street and Susan Street is situated St. Mary’s Church and hall. It is located at the northwest corner of Susan Street and Centre Street. The location of the church relative to the drug store is important with respect to the evidence of certain witnesses.
[13] While working at his computer terminal within the dispensary he observed someone attempted to come through the dispensary doors. He stood up to the person attempting to push him back, but the person swung at him and hit him in the head with what he observed was a gun held in the suspect’s hand. He was struck across the forehead resulting in some bleeding. His evidence was that he could see the gun in the person’s hand after receiving a glancing blow across his forehead. His evidence was that he could see a black handle of a gun in the intruder’s left hand. He felt that it was metal that struck him. The intruder was yelling for opioids, so Mr. Norton went to the opioid cabinet and crouching or kneeling down, began pulling full and partial bottles of opioids and placing them within the intruder’s jacket. The intruder also reached in and grabbed some bottles, repeating his demand seven or eight times correctly pronouncing the words of the opioids he requested. The suspect left quickly without demanding cash or any other prescription medications. Allan Norton said he is 5’ 8” in height. He thought that the suspect was slightly smaller than he was, possibly 5’ 6” or 5’ 7” with a smaller build.
[14] In cross-examination he stated the whole incident lasted about a minute. It was very quick. He could not see the suspect’s face because of the hoody pulled down over the forehead and the face concealed under a scarf. He could clearly only see the suspect’s eyes. He didn’t observe any facial hair or markings. He observed the clothing on the person’s upper body being a dark zippered jacket. He stated that the experience was scary. The suspect was yelling, “Give me your opioids.” After he was struck on the forehead he saw the gun. He observed a black handle. He was certain it was a gun handle. The gun was not pointed at him and there was no verbal threat of the gun. The suspect was holding it waist high.
[15] As far as the age of the suspect his assessment was that the person was a male in his 20’s because of the way he moved quickly and his voice, which sounded stressed to him. Mr. Norton stated that he was not a gun person. This was the first time he’d ever been involved in such an incident.
Marcia Oke
[16] Marcia Oke is a pharmacist assistant who has worked at the Huntsville IDA for 28 years. Her role is to assist the pharmacist in fulfilling prescriptions for prescription drugs. She was on duty at the time of this occurrence. As an assistant to the pharmacist, her role was to fill the patient’s opioid prescription from the manufacturer’s bottles stored in the narcotics cupboard below the counter.
[17] Sometime around 11:30 she saw a person who she thought was over dressed for the weather. His face was covered chin to nose. She didn’t see any weapon at first. She then observed the person trying to enter the dispensary area and saw a brief scuffle with the pharmacist, Allan Norton. She then saw Mr. Norton and the suspect walk toward the opioid counter. She saw Mr. Norton crouching down, bleeding from his forehead. She then saw a weapon in the suspect’s hand. The hand with the gun in it was resting on a drawer. It was in the suspect’s right hand. She saw the handle, and noticed a pattern or texture on the handle, and a black barrel six to eight inches long. She said she thought the gun was real. There were demands made by the suspect who was pronouncing the names of the opioids correctly. When he got various opioid bottles from Mr. Norton the intruder then walked out, again walking past her. She thought the person seemed young, 20-27 years of age, his skin was white. She is 5 feet tall and thought the suspect was possibly 5’ 3” to 5’ 5” and shorter than Allan Norton with a slim build. The person was wearing a dark jacket and blue jeans. The jacket was tight at the waist. She was asked about the quantity of drugs taken. She did an inventory after the robbery, which indicated that 19 bottles in total were taken, 14 were full and five were partially full. The drugs taken from the opioid drawers were Oxycocet, Endocet and Oxyneo.
[18] The video captured on the security cameras within the pharmacy was shown to Ms. Oke, including a still photograph captured from the video marked as Exhibit 6A. Ms. Oke became visibly upset when she saw that photograph which appeared to show a black handgun in the left hand of the suspect.
[19] In cross-examination she said about the suspect’s voice; Answer: “It was matter-of-fact. It was – he knew what he wanted and he just kept repeating it.” She did not see the suspect hit the pharmacist with the weapon. She testified she was shocked and frightened during this incident. She did see blood on Mr. Norton’s face and she was in a state of shock. She thought the robbery lasted an eternity.
Darren Armishaw
[20] On March 3, 2015, just before noon hour, Darren Armishaw was walking towards St. Mary’s Church hall with his sister, his uncle and his mother, Norma Armishaw. They were heading toward the church hall to attend the regular Tuesday noon hour lunch. They were walking along Centre Street, heading north towards the church. As he stopped for a cigarette, a person came from behind them and he said he heard something in bottles. He wasn’t exactly sure if it was pills. The person was bent forward and continued on toward the church steps area. The person was dressed in black clothing. He couldn’t see the face. There was no conversation between he and the person jogging by. He heard what sounded like pills or something in the person’s coat.
[21] In Examination in-Chief when asked who the person was he said it was Ted Taylor’s son. It is not disputed that Tristan Taylor is the son of Ted Taylor, however, the strength of Mr. Armishaw’s specific identification of the suspect was undermined in Cross-Examination for several reasons.
[22] Mr. Armishaw acknowledged that he is a person who has disabilities and has trouble with memory. He acknowledged that he was diagnosed as a slow learner with Attention Deficit Disorder. He was unable to read portions of the transcript proffered to him by the Crown in connection with his earlier testimony at a preliminary hearing. Those excerpts had to be read to him. In addition he acknowledged a criminal record for various offences including trafficking, uttering threats, breach of probation, failing to comply and obstructing a police officer.
[23] Although Mr. Armishaw lived in Huntsville at the time, he had been living elsewhere for two years prior to this incident.
[24] When the person went by he was wearing the hood up. The face was covered, only the eyes were visible. He couldn’t observe any marks on the face, didn’t make any observation about footwear or pants.
[25] After the lunch he went to Tim Horton’s about 1:30. The O.P.P. issued a detailed press release about an armed robbery of a local pharmacy at 1:48 p.m. While at Tim Horton’s he acknowledged talking to Steve Appleyard, but could not recall what he told Mr. Appleyard. Mr. Appleyard gave evidence at this trial and I will have more to say about his evidence in due course. He said that Mr. Appleyard showed him a picture of the suspect from Facebook.
[26] Mr. Armishaw identified Tristan Taylor as the person in the prisoner’s box at trial. However, I do not accept this as positive identification of the individual that ran past him. His identification of Tristan Taylor in the dock is not surprising. He had seen him before and knew him to be the son of his friend Ted Taylor.
[27] I do not accept Mr. Armishaw’s evidence as to a positive identification that Tristan Taylor was the person that ran past him in dark clothing wearing a hoody and with his face covered on Centre Street shortly after the robbery. In assessing his evidence I find that Mr. Armishaw is an individual who is easily influenced by events that may have occurred after the incident, such as conversations at the coffee shop that afternoon. However, I do accept his evidence that someone brushed by him wearing dark clothing with face covered and carrying something that could have sounded like pills. This evidence and the timing of this evidence is supported by the evidence of his mother, who was with him at the time.
Norma Armishaw
[28] Norma Armishaw is Darren Armishaw’s mother. They were walking up Centre Street towards St. Mary’s Church hall for the noon hour lunch. They had walked past the IDA Drugstore. Her plan was to return there after lunch. It was about a 15 minute walk to the church. She is a person with some mobility issues and walks slowly. She thought the time was about 11:45. As she walked along somebody brushed past her. She thought it was a young lad or guy. He was dressed in black, bent over, hunkered over a little bit. She heard something jiggling, such as pills and bottles. There was no conversation. They continued onto the church lunch and went back to the IDA after lunch but it was locked due to the robbery.
[29] In Cross-Examination she said that the person brushed by her. She didn’t see him coming. He was going really fast. She didn’t see the person’s face, only their back as they ran away. The jacket was zipped up with a hood.
[30] She later learned about the events of the day on television and through Facebook.
Shawn Caracciolo
[31] Mr. Caracciolo’s evidence was that he saw Tristan Taylor shortly after the time of the alleged armed robbery. Mr. Caracciolo was parked in St. Mary’s Church parking lot, while texting with a female friend. Tristan Taylor approached his driver’s side window and demanded a ride. I will review the evidence of Mr. Caracciolo in some detail. It can be considered “after-the-fact” conduct of Mr. Taylor and I will review the legal principles with respect to “after-the-fact” conduct later in this decision.
[32] Shawn Caracciolo is 31 years of age and is a general contractor living outside Huntsville. He was well acquainted with Tristan Taylor. Mr. Caracciolo broke his neck when he was 17 and subsequently became addicted to pain killers. He knew Tristan Taylor, because Tristan supplied him with OxyContin. He has purchased OxyContin ten to twenty times from Mr. Taylor, had visited Mr. Taylor at Mr. Taylor’s home in Novar and gave him a ride on at least one occasion. He knew Tristan Taylor did not have a car. His own addiction was from 2010 to 2015. In February 2015, he stopped using illicit prescription drugs. His addiction was not continuous. He consumes alcohol only socially. He did not consider Mr. Taylor a social friend. Mr. Taylor had never been to his residence, but simply supplied him with opioids for cash.
[33] On the day in question Mr. Caracciolo was helping a friend with some renovations issues. He took a break later in the morning. During the morning he was involved in some texting with a woman who he had met through a dating website. When driving, he received one particular text, so he pulled over and backed into a parking spot at St. Mary’s Church so that he could concentrate on these texts and look at pictures on Facebook.
[34] While he was there Tristan Taylor came up to his window and they had a brief conversation. The whole incident lasted about 30 seconds. In examination-in-chief, Mr. Caracciolo was asked the following questions and gave the following answers:
Q. So, besides the texting, what happens while you’re in your vehicle parked in the church parking lot facing Susan Street?
A. So, I backed into the parking lot and some – I was texting back and forth with…
Q. We don’t need to know the name of your friend.
A. …and then Tristan had come up to my driver’s side window and he asked me for a ride to Novar, to which I replied, “No” and he asked me for a ride again and I said, “No” and he said, “Give me a fucking ride” or sorry, yeah, he said “Give me a fucking ride” and I said no and he said, “If you tell anybody that you saw me here, I’ll know it’s you and I’ll come after you.”
Q. All right, so you’ve used the name ‘Tristan’.
A. Yes.
[35] Mr. Caracciolo’s evidence was that Mr. Taylor was dressed in dark clothing with a black coat, his face was not covered. He couldn’t see his hands. His voice was shaky. His breathing was heavier. His face was pale. He thought his tone of voice was aggressive. After this interaction, Tristan Taylor walked or strolled away.
[36] Mr. Caracciolo continued on to pick up his lunch.
[37] Mr. Caracciolo went to the O.P.P. Station on Sunday, March 8, 2015, indicating he had something to say about the robbery. He went on his own accord. However, he didn’t give a statement at that time. The police officer speaking to him advised him to speak to a lawyer and arranged that a lawyer call him.
[38] Subsequently, Mr. Caracciolo made a formal statement to the police on October 15, 2015. In the intervening time period Mr. Caracciolo would have had an opportunity to consult a lawyer with respect to his own involvement in the prior purchase of illicit drugs from Tristan Taylor.
[39] In order to support his evidence that this occurrence took place around lunch time, Mr. Caracciolo provided the investigating officer with several emails attaching the texting that he had been receiving and sending to a woman friend. The first email he sent to the officer sounded a note of caution about the timestamp on the email. As Mr. Caracciolo said in his email of October 16, 2015 to the officer, “Here’s the Facebook message that I know I had sent right before the specific time of the incident, as discussed yesterday. As you can see, Facebook had the wrong times for each message. This is clarified in the message Supervining (sic) message. As I state, I’m hungry and need to get lunch. Hope this helps, unless I need to talk to Facebook and find out what is going on with the wrong times. Maybe it was the time change. I am – I’m sure.”
[40] The time stamp on the message sent at that time showed 8:55 a.m. with subsequent texting at 9:43 a.m. and 9:48 a.m.
[41] On October the 19, 2015, Mr. Caracciolo sent a further email to the investigating officer stating, “Hey, Lou, please find attached the conversation between ‘blank’ and I on March the 3. I just realized that I had my time settings wrong on my computer.” The texting attached to the same messages previously referred to showed times of 11:55 a.m., 12:43 p.m. and 12:48 p.m., in other words, three hours later.
[42] On October the 20, 2015, Mr. Caracciolo sent a further email to the investigating officer with a string of texts said to have occurred earlier that morning. The timestamps as corrected show 11:19 a.m. and texting back and forth between Mr. Caracciolo and his female friend.
[43] Mr. Caracciolo’s evidence on Cross-Examination is that he was required to fix the time settings on his computer regularly. When he restored his computer each month the computer went back to factory settings and he had to change the custom settings to the proper time. So that the message which he received marked 9:55 a.m. was actually received at 11:55 a.m. This message was preceded by several other sexually explicit texts between Mr. Caracciolo and his female friend. Exhibit 35 showed these texts commenced at 11:19 a.m. and continued back and forth. I accept Mr. Caracciolo’s evidence that he met with Tristan Taylor in the parking lot at St. Mary’s Church around noon on March 3, 2015. He noted the time error in his first email to the officer and subsequently corrected for the time in accordance with his factory settings. In fact, one of his texts to his female friend said, “You make me so hungry and its past lunch”, the corrected time stamp was 12:43 p.m. This female friend responded, “So, go eat” at 12:48 p.m. I find it unlikely that texting conversation would have taken place three hours earlier, before 10 o’clock in the morning, given that Mr. Caracciolo’s evidence was that he had worked with a friend in the morning and was on his way to lunch. As the subsequent evidence review of Ryley Taylor and Heather Branch will show, Mr. Taylor was at Heather Branch’s house in Novar from about 8:00 a.m. to 10:30 a.m. that morning.
[44] The Crown called several witnesses to shed light on Mr. Taylor’s activities on March 3, 2015, the day of the robbery.
Jaimie Beauchamp
[45] Ms. Beauchamp is a caseworker with Ontario Works, Parry Sound. Tristan Taylor was one of her clients. They had an in-person meeting December the 11, 2014; as a result he received some benefits from Ontario Works in January 2015. In February he received another smaller benefit for his basic needs, but later in February his benefits were suspended and then terminated. She had a phone conversation with Mr. Taylor at 9 a.m. returning his voice message that he had left at 8:45. She found Mr. Taylor to be verbally abusive over the phone and passed the phone on to her supervisor, refusing to authorize any further benefit transfers to him.
Jeff Degagne
[46] Mr. Degagne was Jaimie’s supervisor at Ontario Works. The phone call to Jaimie from Mr. Taylor was passed on to him. Mr. Taylor was requesting a new caseworker. Mr. Degagne refused to change the caseworker and refused to authorize any benefits. The conversation ended.
Ryley Taylor
[47] Ryley Taylor is 21 years of age and at the relevant time was residing with his mother, Heather Branch, in Novar. He had broken his ankle and had limited mobility at that time. He and Tristan Taylor have the same father, Ted Taylor.
[48] That morning Tristan Taylor came over to the house as he often did to help with chores, bring in wood for the fire and feed the dog. That morning he said that Tristan Taylor was at the house from 8 a.m. until 10:30 a.m. He observed that Tristan Taylor made calls to his social worker while he was at the house. He thought it was about welfare issues. He observed that Mr. Taylor was quite angry after that discussion. His mother, Heather Branch, was also home, but she went to work. Tristan Taylor left about 10:30. Tristan Taylor didn’t return that day. Ryley Taylor tried to reach him by text or email without success. Mr. Taylor would often walk over to this house from his nearby residence. Mr. Ryley Taylor said that it was a ten or 15 minute ride to Huntsville from Novar and would take about four hours to walk.
Heather Branch
[49] Heather Branch is Ryley Taylor’s mother. Ryley was living with her after his ankle fracture. He had mobility issues and needed crutches. When she woke up Tristan was there. She’s known Tristan since 2014. While she was there she overheard Tristan on the telephone talking to the Welfare people. She went to work before 10:30. When she returned Ryley was home. She did not see Tristan Taylor again that day.
Steven Appleyard
[50] The Crown proposed to call Steven Appleyard as a witness with respect to original evidence going to the issue of identification. The evidence on a Voir Dire suggested that Mr. Armishaw told Steven Appleyard that it was Tristan Taylor who ran by him earlier in the day when he was going to the church lunch. As noted earlier in this verdict, Darren Armishaw gave evidence at trial and was subject to Cross-Examination about his recollection of events that day. By way of mid-trial ruling, I ruled that the proposed evidence of Mr. Appleyard did not constitute original evidence of identification, did not fall within any of the traditional exceptions to the rule against hearsay, and did not fall within an exception under the principle approach to hearsay.
[51] In my view, Mr. Appleyard’s evidence has very little value. At best it can be used as a confirmation that he met with Mr. Armishaw at Tim Horton’s in Huntsville shortly after the robbery.
Detective Constable Muller
[52] Detective Constable Muller interviewed Mr. Taylor at the O.P.P. Station. He had dealt with Tristan Taylor in the past. He indicated he thought Mr. Taylor was between 5’ 3” and 5’ 5” in height. He was a white male with a pale complexion, with a small thin build. Because the officer had dealt with Mr. Taylor in the past, he claimed to identify him from the video images captured on the camera at the pharmacy. I pause to note that the suspect was totally clothed in dark clothing with a hoody and face masked. No facial features could be seen on the video. In my view, the officer’s identification of Mr. Taylor could only be viewed, at best, as a hunch or at worst as tunnel vision and is of little value in identifying the suspect from the video.
Positions of the Parties – Crown Submissions
[53] The Crown acknowledges that this is a circumstantial case but submits that there is a web of evidence linking Tristan Taylor as the perpetrator of this armed robbery. Mr. Taylor had motive. He was financially distressed. On the very morning of the robbery he made demands upon Ontario Works in the face of his termination of benefits. He was a trafficker in opioids, having supplied Shawn Caracciolo with opioids for cash on ten to twenty occasions. The Crown further submits that this is a case of theft of drugs to get money by trafficking. Mr. Taylor’s alibi, made through his voluntary statement, was proved to be false or fabricated and his “after-the-fact” conduct showed elements of concealment and flight within a time period immediately after the robbery. As to identification, the Crown pointed to Officer Muller’s testimony, his belief that upon viewing the video the perpetrator was Tristan Taylor. The Crown also points to the evidence of Norma Armishaw and Darren Armishaw, who saw the suspect brushing past them as they were on the way to the noon hour lunch at the church hall. The evidence of Shawn Caracciolo indicated evidence of demanding and threatening behaviour when Mr. Taylor approached his car around noon-hour, only blocks from the IDA. Mr. Taylor’s statement to the police that he was with his step-brother, Ryley Taylor, until 12:00 was proved to be untrue. Ryley Taylor said that Tristan Taylor left the residence at 10:30 a.m.
Position of the Defence
[54] The defence stresses that the onus is on the Crown to prove the elements of these offences beyond a reasonable doubt. There’s a presumption of innocence and the onus never shifts to an accused person to explain their innocence. The defence submits that there was no independent evidence of fabrication of an alibi and therefore, fabrication cannot be made out on the evidence in this case. There should be no inference of guilt.
[55] There is nothing in the evidence of the pharmacist or pharmacist assistant that clearly identifies Mr. Taylor, other than being a person in his 20’s who was shorter than Mr. Norton. The suspect was completely covered in clothing. No gun was recovered at the scene or elsewhere and therefore the element of a firearm used in the commission of this offence has not been proven.
[56] The defence further submits that Mr. Armishaw’s evidence should be given no weight, given that the person he saw running by was completely covered, and his face could not be seen. Further, his acknowledged disability, his criminal record and his weakness in recollection of what happened all lessen the strength of his evidence.
[57] The defence submits that the evidence of Mr. Caracciolo is of no assistance, given his delay in providing a full account to the police and the various inconsistencies with respect to the timestamps on Facebook messages he provided to the investigating officer.
[58] Further, if Mr. Taylor was a narcotics trafficker in the past, it would be speculative to assume, on that basis, that he committed this robbery. Further, there are gaps in the evidence. There is no evidence that Mr. Taylor had access to a vehicle. The Crown has not proven how he got from Novar to Huntsville, about a ten or 15-minute drive by car on the day in question.
Analysis
[59] The Crown is required to prove each of the essential elements of each count beyond a reasonable doubt. This onus never shifts. Mr. Taylor has no obligation to prove his innocence. When jurors are triers of fact, judges often explain the principle of reasonable doubt as set out in Justice David Watt’s Manual of Criminal Jury Trial Instructions (Toronto: Carswell, 2005) at p. 146-147 as follows:
A reasonable doubt is not a far-fetched or a frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence…Proof of reasonable or likely guilty is not proof of guilt beyond a reasonable doubt.
[h]owever, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
[60] In considering the evidence in this case, I remind myself of the difference between logical inferences flowing from the facts in evidence as opposed to mere speculation. In D. Watt, Watts Manual of Criminal Evidence (Toronto: Carswell, 2005) at p. 108 an inference is defined as:
A deduction of fact which may logically and reasonably be drawn from another fact or a group of facts found or otherwise established in the proceedings. It is a conclusion that may not must be drawn in the circumstances.
[61] With respect to inferences, Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p.530 stated:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones that can be reasonably and logically drawn from a fact or a group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J. A. put in R. v. White, (1994) 1994 NSCA 77, 89 CCC (3d) 336 at p. 351, 28 CR 4th 160 (NSCA):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. The failure to observe the distinction involves an error on a question of law.
The Alibi
[62] Mr. Taylor’s statement to the police indicated he was with his step-brother, Ryley, in Novar until about noon hour on the day in question. The incident happened around 11:45 a.m. in Huntsville, about 15 minutes away by car. However, the evidence of Ryley Taylor indicated that Tristan Taylor left the residence in Novar about 10:30. The Crown submits that the alibi suggested by Tristan Taylor was deliberately fabricated and therefore an inference of guilt ought to be drawn. In R. v. O’Connor, [2012] O.J. No. 4410, the Ontario Court of Appeal dealt with and reviewed the law about alibi. As Associate Chief Justice O’Connor stated at para. 17:
It is well-settled that there is a distinction between an alibi that is disbelieved and therefore, rejected and an alibi that is found to be concocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference of guilt may be drawn.
[w]here the Crown adduces evidence from which it can be inferred that an accused fabricated an alibi, that evidence is capable of supporting an inference of guilt.
[63] At para. 19, the Court went on to say:
The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies.
[64] Was Mr. Taylor attempting to fabricate an alibi when he indicated to the officer that he was at his step-brother’s house until noon? That answer has to be considered within the context of questions that were put to him. First of all, he told the interviewing officer that he knew nothing about the events of the previous day, nor did the officer suggest to him the time this armed robbery took place. Mr. Taylor could easily have been mistaken about the time that he left his step-brother’s house. In the context of the interview as it was conducted, I am not satisfied that he was attempting to fabricate an alibi. It was not put to him that the robbery took place just before noon. I find that his statement has no evidentiary value under the circumstances.
Post-Offence Conduct
[65] The Crown suggests that Tristan Taylor’s post-offence conduct demanding a ride from Shawn Caracciolo is circumstantial evidence of his culpability for the crime. The Supreme Court of Canada reviewed the law of post-offence conduct as consciousness of guilt in R. v. White, 1998 789 (SCC), 1998 S.C.J No. 57. Major J. speaking for the court stated at paragraph 19:
Under certain circumstances the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime.
[a]s Weiler, J.A. noted in R. v. Peavoy (1997), 1997 3028 (ON CA), 117 CCC (3d) 226 (Ont. CA) at p. 238:
Evidence of after the fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
[66] As Major J. further noted at para. 21:
Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.
[67] In my view, the appearance of Tristan Taylor at Shawn Caracciolo’s car window and his demands to Mr. Caracciolo are very telling. Mr. Caracciolo was parked in the church parking lot only a block or so from the IDA Pharmacy. He was there just before 12 o’clock and the robbery in progress was reported to 9-1-1 at 11:45. Mr. Taylor demanded a ride three times. Mr. Taylor and Mr. Caracciolo had a previous relationship but there was otherwise no evidence of any hostilities between them. On his third demand he said, “Give me a fucking ride…if you tell anybody that you saw me here, I’ll know it’s you and I’ll come after you.” Those demands and a threat defy an innocent explanation.
[68] Mr. Caracciolo observed that Tristan Taylor was wearing a black coat. He couldn’t see his hands or anything that may have been carried, but he felt that Mr. Taylor was aggressive.
[69] His face was not concealed and he clearly identified Tristan Taylor.
[70] In my view, the conduct of Tristan Taylor in demanding a ride accompanied by a threat is circumstantial evidence of a desire to flee the area.
[71] The suspect seen on video at the drug store was wearing dark clothing, a hoody covered his head and forehead, a scarf or some other item of clothing covered up to his nose. Both the pharmacist and assistant pharmacist thought that the suspect was male, in his 20’s and shorter in stature than the pharmacist who was 5’8”.
[72] Moments later a person matching this description and similarly clothed with his face masked brushed past Norma Armishaw and her son Darren Armishaw. They both heard what they thought were pills rattling in the suspect’s coat. Although they did not see the subsequent encounter between Mr. Taylor and Mr. Caracciolo, they were on the same sidewalk walking along Centre Street that led from the drug store toward the church parking lot. Ms. Armishaw thought this was about 11:45 because they were walking toward the church basement for the 12 o’clock lunch, and they had not arrived yet.
[73] At the time of the robbery Mr. Tristan Taylor was not at Ryley Taylor’s residence. He left around 10:30 a.m. His demanding calls to Ontario Works employees that morning indicated he was desperate for money. The evidence of Mr. Caracciolo indicated that Tristan Taylor had previously sold him opioids for cash. The perpetrator of the crime demanded Opiates and nothing else and left with 19 full or partially full bottles of pills. Within minutes after the robbery, Tristan Taylor walked up to Shawn Caracciolo’s car window demanding a ride. His demands were accompanied by a threat. When the evidence is considered as a whole, I have no hesitation finding that the Crown has proven that Tristan Taylor committed the robbery of the Huntsville IDA on March 3, 2015. Having considered the identity of the perpetrator, I now consider the essential elements of the four counts before the court.
Count 1
[74] Count 1 on the indictment provides as follows:
Tristan Taylor stands charged that on or about the 3rd day of March 2015 in the Town of Huntsville, in the District Municipality of Muskoka, did use a firearm, to wit a handgun, in robbing Allan Norton of the IDA Pharmacy of prescription narcotics and did thereby commit an offence, contrary to s. 344(a.1) of the Criminal Code of Canada.
[75] Robbery is defined in the Criminal Code of Canada in s. 343, which provides as follows:
Every one commits robbery who,
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats or strikes, or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.
[76] Section 344(a.1) further provides:
344(1) Every person who commits robbery is guilty of an indictable offence and liable
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
[77] In my view, the indictment before the court includes the offence of robbery simpliciter. When the elements of that offence are made out then the court is required to determine whether or not the accused person used a firearm, therefore elevating the offence to one which would require the court to impose a minimum sentence under s. 344(a.1).
The Elements of the Offence of Robbery Simpliciter
[78] The elements of the offence of robbery simpliciter can be described as follows:
(i) that the accused stole something from the complainant;
(ii) that the accused used violence or threats of violence; and
(iii) that the accused used violence or threatened to use violence for the purpose of carrying out the stealing.
(i) Did Tristan Taylor Steal Something?
[79] Based on a review of all of the evidence, I am satisfied that Tristan Taylor stole opioids from the IDA Pharmacy. He entered into the dispensary area, made clear his demands, and forced the pharmacist to give him nineteen full or partially full bottles of prescription opioids. He then left the store, all within about one minute.
(ii) Did Tristan Taylor use Violence or Threats of Violence?
[80] I accept Allan Norton’s evidence that he was struck across the forehead by Tristan Taylor. He believed it was a handgun. It felt like metal. He later saw the weapon in Mr. Taylor’s hand. As a result of the striking across his forehead, he received an abrasion and bleeding from his forehead followed.
(iii) Did Tristan Taylor use Violence or Threaten to use Violence for the Purpose of Carrying out the Stealing?
[81] Allan Norton initially tried to push away Tristan Taylor when he entered into the cordoned off dispensary area. However, the immediate response of Tristan Taylor was to strike him across the forehead with the weapon while shouting demands for opioids.
[82] The pharmacist’s assistant, Ms. Oke, saw the weapon, heard the demands and observed the behaviour of Mr. Taylor at the opioid cupboard. When all of the evidence is considered, I am satisfied that the Crown has proved the elements of robbery simpliciter beyond a reasonable doubt.
Did Tristan Taylor use a Firearm – A Handgun?
[83] Section 2 of the Criminal Code of Canada defines “firearm” as follows:
Firearm means a barrelled weapon from which any shot, bullet, or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such barrelled weapon and anything that can be adapted for use as a firearm.
[84] It is not disputed that no such weapon was recovered at the scene or at any time thereafter as a result of the police investigation of this robbery. Both Allan Norton and Marcia Oke gave evidence about what they observed in Tristan Taylor’s hand during the robbery.
Allan Norton
[85] Allan Norton acknowledged that he was not a gun person, but he described what he thought was a gun in Tristan Taylor’s hand. It was black or dark metal with a square handle, and a barrel of about six inches. He also felt the weapon because he was struck across the forehead. He said it hurt and it felt like something hard with a metal feel. On cross-examination he said that he saw the gun in Mr. Taylor’s left hand after he had been struck across the forehead. He said it looked like a gun. He saw the handle and he said he was certain it was a gun handle. He acknowledged that the gun wasn’t pointed at him and there was no verbal threat of the use of the gun.
[86] But it is clear that he took the matter quite seriously after he was struck across the forehead and saw the gun. Prior to that, he attempted to repel the smaller intruder by pushing him back out of the dispensary area. After he was struck, he quickly complied in every respect for the repeated demands for opioids. He went to the cabinet and immediately started transferring full and part bottles to Mr. Taylor.
Marcia Oke
[87] Marcia Oke also acknowledged that she was not a gun person. She did not see any weapon immediately when Mr. Taylor walked past outside of the dispensary area. But she saw and observed the weapon when Mr. Taylor entered the dispensary area and made demands for opioids. She saw what she thought was a handgun in his hand resting on the drawer of the opioid cabinet. She thought it was in Mr. Taylor’s right hand that time. She saw a handle that she thought was black with a pattern or texture. She said it looked real and her evidence was that she thought it was real. In cross-examination, she agreed that she was shocked and frightened while observing this robbery. She froze in place. She answered a ringing phone simply to stop the distraction while the robbery was in progress.
[88] Although this event happened about a year-and-a-half prior to the trial, she became physically upset when she looked at the video image of Mr. Taylor with what she observed was a handgun in his left hand. She was only able to continue testifying after a break.
[89] I am satisfied that on all of the evidence, Tristan Taylor used a weapon in the commission of this offence. The issue for the court to consider is whether or not the weapon was a firearm as defined by the Criminal Code. Some weapons, such as an imitation handgun, do not fall within the definition of firearm under the Criminal Code (see R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069 at para. 46. In Wills, Doherty J.A. considered the issue of whether or not a firearm was used in an armed robbery when no weapon was recovered or discharged. In framing the discussion, Doherty J.A. stated at paras. 49-50:
I will, however, address the appellant’s submissions that, absent proof that a firearm was discharged or the recovery of a firearm, the Crown could not prove that the weapon used in the robbery was a firearm…
The Crown may prove that the alleged firearm fell within the definition by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered.
[90] In Wills, the offenders committed a home invasion robbery and the evidence indicated that one of the accused pointed a handgun at the victim and made threats.
[91] In Wills, Justice Doherty made reference to three other decisions of the Ontario Court of Appeal and stated at para 50, “This Court has upheld trial decisions that have drawn the inference even though the firearm was not discharged or recovered.”
[92] In R. v. Richards, 2001 21219 (ON CA), [2001] O.J. No. 2286 (C.A.), the Court made brief reference to the facts and stated at para. 4:
…Having regard to the description of the gun given by the witnesses, the circumstances surrounding the use of the gun – namely, that the witnesses were ordered to get down on the floor, had a gun pressed to the head, or threatened, and the modus operandi indicating that the appellant had ready access to guns called from different locations prior to the subsequent robbery – it was open to the trial judge to come to the conclusion that the gun used by the appellant was a firearm.
[93] In R. v. Carlson, [2002] O.J. No. 1884 (C.A.), the Court of Appeal noted that the issue of whether or not it was a firearm was not raised at trial and concluded at para. 16, in accordance with its previous position in Richards:
We are satisfied that taken cumulatively, the following items of evidence could reasonably support a finding that the handgun in issue was a firearm:
During the course of the robbery, the appellant brandished the gun, waved it around and eventually pointed it at the back of the employee’s head, all the while screaming that this was a “hold-up” and demanding money. Various witnesses described the gun as small and black with a six to eight-inch muzzle. The fact that the appellant had ready access to guns according to the combined testimony of his accomplice…
[94] In R. v. Charbonneau, 2004 9527 (ON CA), [2004] O.J. No. 1503 (C.A.), in brief reasons the Court stated at para. 3:
It is true that the complainant was equivocal on the question of whether she could tell for certain whether the gun was real or fake. However, the trial judge also had before him the evidence of the complainant’s clear belief that it was a gun, her description of the object, the appellant’s conduct in relation to it, and his use of it together with the appellant’s threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge’s finding that it was a handgun.
[95] I am satisfied from the totality of the circumstances surrounding this robbery that an inference can be drawn that Tristan Taylor had a firearm in his hand during the robbery. The following facts assist in drawing this inference:
• Ms. Oke saw what she thought was a real firearm and froze in place during the robbery;
• Allan Norton not only saw what he thought looked like a gun. He felt it. It was used to strike him across the forehead. When he felt the weapon and saw it, he immediately complied with the demands for opioids after initially attempting to repel the intruder from the dispensary area;
• The weapon in Tristan Taylor’s left hand seen on the video disturbed Ms. Oke when she viewed the video in court.
[96] Both Mr. Norton and Ms. Oke offered no resistance when they saw what they thought was a real handgun.
[97] I therefore find Tristan Taylor guilty of Count 1.
Count 2
[98] Count 2 provides:
And further that Tristan Taylor stands charged that on or about the 3rd day of March 2015, at the Town of Huntsville, in the said Region, did in committing an assault on Allan Norton, use a weapon, to wit, a handgun, and did thereby commit an offence contrary to s. 267(a) of the Criminal Code of Canada.
[99] Section 267 provides in part:
267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence…
[100] The essential elements of this offence can be broken down as follows:
(i) that the accused intentionally applied force to the complainant;
(ii) that the complainant did not consent to the force that the accused intentionally applied;
(iii) that the accused knew that the complainant did not consent to the force that the accused intentionally applied; and
(iv) that a weapon was involved in the accused’s assault of the complainant.
[101] I have already reviewed the evidence in detail with respect to Mr. Taylor’s conduct when he entered into the dispensary area of the IDA Pharmacy. He was initially pushed back by Mr. Norton. He responded by striking Mr. Norton across the forehead with the weapon he was carrying in his hand. There was absolutely no evidence that Mr. Norton consented to this activity in these circumstances. Further, it is patently obvious that Tristan Taylor knew that Allan Norton did not consent to this application of force. Mr. Norton not only saw the handgun, he felt it. He felt metal striking across his forehead and then observed the handgun.
[102] In R. v. Felawka, 1993 36 (SCC), [1993] S.C.J. 117, the Supreme Court of Canada stated, “A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.”
[103] In all of the circumstances, I have no hesitation in finding that the Crown has proven the essential elements of this offence beyond a reasonable doubt. I therefore record a verdict of guilty with respect to this count.
Count 3
[104] Count 3 provides:
And further that Tristan Taylor stands charged that on or about the 3rd day of March 2015, at the Town of Huntsville, in said Region, with intent to commit an indictable offence, did have his face masked, and did thereby commit an offence, contrary to s. 351(2) of the Criminal Code of Canada.
[105] Section 351(2) deals with disguise with intent. It provides as follows:
Every one who, with intent to commit an indictable offence, has his face masked or coloured, or is otherwise disguised, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[106] The elements of that offence can be broken down as follows:
(i) that the accused intended to commit an indictable offence; and
(ii) that the accused had his face masked.
Intent to Commit an Indictable Offence
[107] I have no hesitation in finding that Tristan Taylor intended to commit an indictable offence of armed robbery. He entered the cordoned off dispensary area by use of force, striking the pharmacist with a weapon, demanding that the pharmacist give him opioids.
Disguise
[108] Tristan Taylor was fully clothed in dark clothing. He wore a hoody that was pulled down over his forehead and a mask or similar facecloth covering his face, including his nose. According to the evidence of the pharmacist, Mr. Norton and his assistant, Ms. Oke. This was confirmed by the video image captured by the cameras at the pharmacy. The hoody and the facial covering made it impossible for the suspect to be identified by the images alone. I am satisfied that Tristan Taylor disguised his facial features for no other purpose than to hide his identity.
[109] I am satisfied that the Crown has proven beyond a reasonable doubt the essential elements of this offence. I therefore find Tristan Taylor guilty of Count 3.
Count 4
[110] Count 4 provides:
And further, that Tristan Taylor stands charged that on or about the 3rd day of March 2015, in the Town of Huntsville, in the said Region, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 109(1) of the Criminal Code at Bracebridge on May 5, 2009, and did thereby commit an offence contrary to s. 117.01(1) of the Criminal Code of Canada.
[111] Section 117.01(1) of the Criminal Code provides as follows:
Subject to ss.4, every person commits an offence who possesses a firearm, a crossbow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition, or an explosive substance while the person is prohibited from doing so by any order made under the Act or any other Act of Parliament.
[112] Subsection 3 further provides:
Every person who commits an offence under ss.1 or 2
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[113] As set out in the Agreed Statement of Facts, Mr. Taylor was under such a prohibition order. As para. 4 provides:
As of March 3, 2015, Tristan Taylor was subject to a weapons prohibition order under s.109(1) of the Criminal Code from Bracebridge on May 9, 2009, that prohibits Tristan Taylor from being in the possession of any firearm.
I am satisfied that the Crown has proven the elements of this offence beyond a reasonable doubt. Mr. Taylor was subject to a prohibition order with respect to the possession of a firearm. For the reasons more fully set out with respect to Count 2 in my judgment, I am satisfied that in all of the circumstances, an inference can be drawn that the object in Mr. Taylor’s hand was a firearm.
[114] I therefore record a verdict of guilty with respect to Count 4.
Delivered orally on October 21, 2016
NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.