Court File and Parties

COURT FILE NO.: CR-15-4412 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JEFFEREY J. MITCHELL Defendant

COUNSEL: M. Montemurro, for the Crown A. Furgiuele, for the Defendant

HEARD: February 13-16, 21-24, 2017

REASONS FOR JUDGMENT

MCKELVEY J.:

Introduction

[1] On June 5, 2015 at approximately 4:15 p.m. a masked man entered the CIBC bank located at 7027 Yonge Street in Markham. He was holding a gun and proceeded to take the cash from the cash drawers of three of the tellers. The monies stolen from the bank contained three dye packs which exploded in a red cloud of smoke as the robber was making his way to a vehicle located at one end of the CIBC parking lot.

[2] On June 11, 2015 the accused, Jefferey J. Mitchell was arrested. He is charged with the following offences:

1. That he was responsible for the robbery on June 5, contrary to section 343(d) of the Criminal Code
2. That his face was masked with intent to commit the indictable offence of Robbery contrary to section 351(2) of the Criminal Code
3. That while committing the offence of Robbery he used an imitation firearm contrary to section 85(2)(a) of the Criminal Code

[3] The defendant has admitted for the purposes of this trial:

1. That there was a robbery at the date and time alleged in the indictment and that the individuals robbed are as stated in the indictment;
2. The individual who committed the robbery was masked; and
3. That the person who committed the robbery used an imitation firearm.

[4] The defendant agreed at the commencement of trial that the sole issue to be determined at trial is the identity of the person who committed the robbery. The defence agreed that if the court were to find that the defendant was the person who committed the robbery he would be guilty of counts one, two and three.

[5] As a result, therefore, the sole issue before me is whether the Crown has proven the identity of Mr. Mitchell as the person who committed the robbery beyond a reasonable doubt.

[6] In considering whether the Crown has met its burden in this regard it is significant to note that the evidence relied upon by the Crown is circumstantial. As result in order to convict Mr. Mitchell on the basis of circumstantial evidence I must be satisfied beyond a reasonable doubt that his guilt is the only reasonable conclusion or inference that can be drawn from the whole of the evidence. In R. v. Villaroman, 2016 SCC 33, the Supreme Court pointed out the importance of considering all the evidence or lack of evidence in assessing whether there are reasonable inferences which are inconsistent with guilt (paras. 35 and 36). But, as noted by the Supreme Court, “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”.

Overview

[7] The Crown called a total of sixteen witnesses at trial. The defence did not elect to call evidence.

[8] Eric Chung, Mojtaba Dadfar, Maryam Fatourechi and Minah Kim were all in the bank at the time of the robbery and gave evidence about their observations.

[9] Alex Garvey, Amanda Wilkie, Sandy Hayes and Lisa Morris were all employed at the Mohawk Casino in June of 2015. Their testimony related to the discovery of a number of twenty dollar bills which were stained red and which were discovered by the casino in a count which occurred on June 7, 2015.

[10] Daniel Quinlan, Nancy Cascanette, Kira Wannamaker, Reesa Fallis and Janna Skora were all employed in June of 2015 at the Kawartha Downs Casino. They gave evidence with respect to $905 in cash which was stained red and which was discovered by the casino staff on June 9, 2015.

[11] Constable Sebastian Cultrera was the York Regional Police Officer who arrested Mr. Mitchell on June 11, 2015. Officer Kevin Coady is a member of the Ontario Provincial Police and liaised with the Kawartha Downs staff following their discovery of the red dye currency in that casino. Gerry Hanlon is a retired Toronto Police Services Officer who is a self-employed contractor who works with 3SI Security Systems who manufacture all of the dye packs used by banks in the Province of Ontario. He testified that the red stained bills found in the Mohawk and Kawartha Downs Casinos were consistent with dye packs manufactured by 3SI Security and which are used exclusively by banks in Ontario.

The Evidence from Witnesses at the Scene of the Robbery

[12] All of the witnesses who testified about the events which occurred at the time of the robbery were credible. The defence did not take any issue about their credibility. None appeared to have any reason to fabricate their evidence and in many respects their evidence was corroborated by video evidence which was taken at the time of the robbery. Nevertheless, it must be recognized that the robbery was a sudden and unexpected event and was potentially traumatizing to those who were present. The entire incident took place very quickly and these factors need to be taken into account in considering their evidence.

[13] Eric Chung was a teller at the CIBC branch when the robbery occurred. He testified that there were four tellers working at the time the robbery occurred. Each cash drawer had a dye pack contained in it. He first noted the robber when he saw him beside a co-worker, Catherine. The individual had a gun in his hand. He described him as a male, wearing a ski mask, gloves and a rain coat. In the robber’s right hand was a gun and in his left hand was a gym bag which was black or grey. The gym bag can be seen in a video taken by Mr. Dadfar on his telephone during the course of the robbery. He described the black bag as being in a square shape. In the video he took (Exhibit 1) a square gym bag looking black in colour can be seen.

[14] In Mr. Chung’s evidence he described how the robber pointed a gun at him and told him to “give me the money” and “no dye packs”. Mr. Chung opened the cash drawer and stepped back. The robber took everything from his cash box including the dye pack as well as some “bait money”. The bait money consisted of 10 ten dollar bills with previously recorded serial numbers for the bills. Mr. Chung described the robber as having white skin. This information is confirmed by a cellphone video as well as the other witnesses who were present and testified. He described the individual as being about 170 cm tall and estimated his age at between 40 to 50 years old. He also stated that the individual was a little chubby and had “a bit of a belly”.

[15] Mr. Dadfar was a customer who was dealing with a teller at the time of the robbery. He was bold enough to take a cellphone video which shows at least some portions of the robbery taking place. He confirmed that the robber was holding a black gun, but he could not say if the gun was real. He said the individual was three to five inches taller than him (he is 166 to 167 cm tall). He estimated the robber’s weight at 85 kgs and described him as “chubby”.

[16] After the robber had left the bank building, Mr. Dadfar continued his cellphone video and the robber can be seen moving quickly through the bank parking lot at which time the dye packs explode in a cloud of red smoke. He also saw the robber get into a dark coloured car. He could not identify the make or model of the car as he was paying attention to his video recording. He could just see the back of the car.

[17] Maryam Fatourechi was one of the tellers working at the bank at the time of the robbery. When she first saw the robber she was behind the counter. When he was in the bank he was moving fairly slowly which led Ms. Fatourechi to believe that he was over 40 years old. She described the individual as the same or a little taller than her. She is 165 cm tall. She described him as having a “belly”. She also thought he was white. She testified the robbery occurred at approximately 4:00 or 4:15 p.m.

[18] Minah Kim was a Financial Services Representative at the bank at the time of the robbery. She saw the robber with a black gym bag which was rectangular in shape with handles. She also saw white skin on the side of his face. He seemed calm and walked casually out of the branch after the robbery. As he exited, he turned to the right towards the bank parking area. She saw the dye pack blow up as the robber was en route to his vehicle. He then went to the end of the parking lot where his car was parked beside a garbage bin. She could see the driver’s side of the car but could not see the doors on the car. The robber got into the car on the driver’s side. She described the weather as raining and a little cloudy and dark which is also reflected on the cellphone video. She described the car as being dark in colour and a Honda Civic. The suspect was approximately 5’6” tall. He had a round face and a little bit of a belly. She estimated his age at in his 40’s or 50’s, but this was an estimate based on how he was moving because she could not see any of his facial features.

[19] Constable Sebastian Cultrera was the officer who arrested Mr. Mitchell on June 11, 2015. At the time of his arrest, he was entering a two door Honda Civic motor vehicle which was dark green. The arrest took place at 9:30 when it was dark. Constable Cultrera said that the vehicle which was dark green in colour appeared black depending on the angle from which it was viewed. Constable Cultrera described Mr. Mitchell as being 5’7” to 5’8” tall. He was medium build and did have a belly coming out of his shirt. He appeared to be in his early 50’s which was consistent with his known date of birth being November 25, 1961.

[20] The officer did not see any red dye stains in the car or at Mr. Mitchell’s home. He also found no dye stained clothing or a gun.

[21] According to a Ministry of Transportation record filed as an exhibit at trial, Mr. Mitchell is 173 cm tall or approximately 5’6½”.

[22] Based on the evidence from the officer and the eye witness accounts I have concluded that Mr. Mitchell fits the description of the perpetrator. As described by the eye witnesses, his height and the presence of a “belly” are consistent with the description from Officer Cultrera. The estimated age is consistent with that given by all of the witnesses although this observation must be tempered by the fact that none of the witnesses had an opportunity to see his face which might limit the reliability of that estimate. The robber was also wearing white shoes as seen in the cellphone video and these white shoes are consistent with a pair of white Puma shoes which were seized by Officer Cultrera at the time of the arrest.

[23] All of this evidence, however, does not come close to satisfying the identity of the perpetrator beyond a reasonable doubt. None of the witnesses were able to observe the face of the robber. No one could identify the defendant as the person who committed the robbery. The best that can be said from this evidence is that the accused’s physical characteristics are consistent with those of the person who committed the robbery. As pointed out by the defence, there are a large number of people in the population who would fit the description given by the witnesses who were present at the bank.

[24] Two of the witnesses in the bank gave evidence about the car which the robber used after exiting the bank. Mr. Dadfar testified that he could only see the back of the car. He described the colour of the car as being dark. He thought the colour was either black or some other dark colour. He did not recall the number of doors on the car and was not able to give an opinion on the make or model of the car as he was paying attention to the video he was recording.

[25] Ms. Kim testified that she observed the suspect get into a vehicle which was dark in colour. However, in her statement to police that she stated that she was 99 per cent sure that it was a black Honda Civic and was pretty sure that it was a four door vehicle. She was not able to see the vehicle’s license plate because it was covered up. When cross examined on her statement to the police that she thought it was a four door vehicle, she stated that after seeing the cellphone video it was hard to tell if it was a two door or a four door vehicle. This led her to believe that she may not have correctly described it as a four door vehicle. In the cellphone video, Ms. Kim is clearly seen going to a window in the bank which would give her the best view of the robber’s car. She calls out on the video that the vehicle is a Honda Civic. Exhibit 2B contains some still photographs from the cellphone video. On one of these photos, the side of the suspect vehicle can be seen. It appears from the photo that the front passenger window is significantly larger than the back passenger window. I have concluded that this photo is clear enough to establish that the suspect vehicle was in fact a two door vehicle.

[26] Photos that were taken of Mr. Mitchell’s vehicle by Constable Cultrera confirm his evidence that Mr. Mitchell’s vehicle was dark green in colour and was a two door Honda Civic. The officer described the vehicle as looking black from some angles. Having reviewed the photos, I accept his evidence that the colour of the vehicle looked dark and could be mistaken for black, especially on a dark, rainy afternoon, which were the conditions at the time of the robbery.

[27] I have also compared photos taken by Officer Cultrera of the rear of Mr. Mitchell’s vehicle (Exhibit 21) to the rear of the vehicle used in the robbery as shown in the cellphone video. While it is difficult to ascertain the colour of the vehicle from the cellphone video, it is apparent that the rear of the vehicle shown in the cellphone video appears identical to that of Mr. Mitchell’s vehicle. I also note that according to the Ministry of Transportation records, Mr. Mitchell’s vehicle is a 1999 Honda Civic, which would have been approximately 16 years old at the time of the robbery.

[28] Based on the evidence from Ms. Kim and Mr. Dadfar, as well as the cellphone video, the photos taken by Officer Cultrera and the Ministry of Transportation records, I have concluded that Mr. Mitchell’s vehicle fits the description given by the two eye witness accounts and the still photos which were taken from the cellphone video. This evidence, however, does not satisfy me that Mr. Mitchell’s vehicle was the one that was used in the robbery. No unique identifying information could be seen on the vehicle used in the robbery such as the license plate number because it had been covered up. Mr. Dadfar was devoting most of his attention to recording the video and Ms. Kim had only a brief opportunity to make her observation. The only conclusion that can be drawn from this evidence is that the accused’s vehicle is consistent with or similar to the vehicle used by the person who committed the robbery. Even though the vehicle was quite an old model, it must be borne in mind, that the Honda Civic automobile is a common vehicle owned by a large number of people in the population. In addition, the only observation of the suspect vehicle was from the rear. The fact that Mr. Mitchell owns a similar automobile does not come close to satisfying the identity of the perpetrator beyond a reasonable doubt.

The Evidence of Mr. Mitchell’s attendance at the Mohawk Casino

[29] The Crown introduced evidence of Mr. Mitchell’s attendance at both the Mohawk Casino and the Kawartha Downs Casino after the robbery. The evidence from both casinos is that red dye stained money was found in the cash boxes of the slot machines following Mr. Mitchell’s attendance at these casinos. The Crown’s position is that the red dye stained money was brought to the casinos and inserted into the slot machines by Mr. Mitchell as a means of laundering the damaged currency and that the doctrine of recent possession applies to provide compelling circumstantial evidence that Mr. Mitchell was in fact the person who committed the robbery at the CIBC branch.

[30] In addition, the Crown relies on a comparison of the clothing worn by the robber and Mr. Mitchell when he attended at the Mohawk Casino about 5 hours later as evidence to support its position that the accused committed the robbery.

[31] Lisa Morris was a Surveillance Officer at Mohawk Casino in June, 2015. In her evidence she testified that Mr. Mitchell attended at the casino at 9:32 p.m. on June 5, 2015. A copy of the surveillance video from his attendance on that date was introduced at trial. The defence acknowledged that it was Mr. Mitchell shown in this video.

[32] The video is significant in part because of the clothing worn by Mr. Mitchell. He is shown coming into the casino wearing a black t-shirt covered by a black jacket with white trim. He is also seen wearing track pants with three stripes down the side. The three stripes end about half way between Mr. Mitchell’s knee and his ankle. He is also seen wearing white shoes.

[33] In the cellphone video taken during the robbery, the robber is observed wearing a face mask, white gloves, dark sunglasses, and a clear plastic poncho which covers a black t-shirt. The robber is also wearing track pants with three stripes down the middle. These stripes end half way between the robber’s knee and ankle. The robber is also wearing white shoes. It is apparent with the exception of the black mask, gloves, dark sunglasses and clear poncho, the clothes worn by Mr. Mitchell at the casino under his black jacket with white trim are identical to those worn by the robber. While the defence acknowledges the similar appearance of the clothing, it is submitted that wearing a black shirt and white shoes is fairly common and that the track pants with three white stripes down the side is not particularly distinctive. I disagree. While there is no evidence before me about how common it is to find track pants with three stripes down the side which end half way between the knee and ankle, the presence of the three stripes is a distinguishing feature of these pants. In addition, it is not just the similarity of the clothing which is significant, it is also the fact that they are worn together in combination with each other. In this context, I consider the clothing worn by Mr. Mitchell and the robber to be distinctive. Further, it is significant in my view that Mr. Mitchell is seen wearing this clothing shortly after the bank robbery. The Agreed Statement of Facts marked as Exhibit 26 provides relevant information about the distance and approximate driving times between various locations. It has been agreed that the distance between the CIBC bank and Mr. Mitchell’s home in Cobourg, Ontario is approximately 120 kilometres and the driving time is approximately one and a half hours. The distance between the CIBC bank and the Mohawk Casino is approximately 70 kilometres and the driving time between those two locations is approximately one hour. The distance between Mr. Mitchell’s home in Cobourg and the Mohawk Casino is approximately 180 kilometres. The driving time between those two locations is approximately two hours. Mr. Mitchell arrived at the Mohawk Casino at 9:32 p.m.; meaning that he arrived within approximately 5 hours after the robbery. If he was responsible for the robbery there was adequate time for him to travel from the bank to Mohawk or alternatively to travel from the bank to his home and then to Mohawk.

[34] There is also evidence that red dye stained currency was discovered following Mr. Mitchell’s attendance at the Mohawk Casino. Lisa Morris was a Surveillance Officer at the Mohawk Casino in June, 2015. She gave her evidence in a professional and straight forward manner and it appeared to be consistent with the recorded video. Ms. Morris advised that the casino was provided with a photo of a male seen in the Kawartha Downs Casino. Mohawk Casino was asked to review video footage from its casino and undertook a review. This review revealed that Mr. Mitchell was in the casino for 5 minutes and 49 seconds on June 5, 2015. He arrived at the casino at 9:32 p.m. He gambled at only one slot machine which was identified as Machine No. A0813. Initially, Mr. Mitchell inserted five bills into the machine. The fifth bill was rejected by the bill validator on that machine. Initially, Ms. Morris thought that Mr. Mitchell then hit the spin button on the slot machine. However, the video surveillance reviewed by Ms. Morris shows the next action performed by the slot machine was to issue a cash out voucher. Based on this observation she thought that Mr. Mitchell had hit the cash out button and not the spin button after the fifth bill was rejected by the bill validator. This would appear to be a reasonable inference and one which I draw in the circumstances. After cashing out, Mr. Mitchell then inserted two more bills into the slot machine. After he inserted the two bills, he hit the spin button once. After he inserted the next bill he hit the spin button three times. He then inserted another bill, pushed the cash out button and received a voucher.

[35] By 9:35 p.m., or approximately 3 minutes after his arrival at the casino, Mr. Mitchell left the area of the slot machines and went to a redemption window where he redeemed his two vouchers. He received a total of $135 dollars plus some change in exchange for the two vouchers. In total, Mr. Mitchell inserted nine bills into the machine, one of which was rejected. He hit the spin button a total of four times and hit the cash out button twice to get the vouchers which were redeemed subsequently.

[36] During the course of her evidence, Ms. Morris suggested at one point that Mr. Mitchell inserted a total of seven bills as opposed to eight into the machine. This evidence was incorrect and was corrected in re-examination. I do not take anything from this error, however. During both examination-in-chief and cross-examination, Ms. Morris was taken through the transactions which occurred. Her evidence in this regard was consistent with eight bills being inserted into the machine and is supported by the video surveillance. In total, Mr. Mitchell put nine bills in to the bill validator, one of which was rejected leaving a total of eight bills which were inserted into the machine.

[37] It is interesting to note that the first voucher was redeemed for an uneven dollar amount despite the fact that Mr. Mitchell had not taken any spins on the slot machine before cashing out for the first voucher. Ms. Morris explained that this may have been due to the fact that there were some existing credits on the machine when Mr. Mitchell sat down to play. This seems to be a logical conclusion as Mr. Mitchell inserted only bills into the machine and in fact the slot machines do not accept coin currency

[38] Ms. Morris described Mr. Mitchell’s activity at the slot machine as minimal gaming, which is considered suspicious. This is because he only played the slot machine for four spins and cashed out initially before playing the slot machine at all. I accept Ms. Morris’ evidence in this regard. I find it very unusual that four bills would be inserted into a penny slot machine where the maximum bet was two dollars and then cash out before playing the slot machine at all. The suspicious nature of Mr. Mitchell’s activity is further supported by the fact that he was only in the casino for about 5 minutes.

[39] Mr. Garvey described how an MPS machine is used to count the money. He worked on the Mohawk Casino count team on June 7, 2015. As he was counting the money from unit A0813, the MPS rejected two twenty dollar bills. Mr. Garvey noted that the two twenty dollar bills had red dye on them. He reported this to his supervisor. The two twenty dollar bills were entered as an exhibit at trial and clearly had evidence of red dye on them. The counting process was all video recorded and as a result, there is independent evidence that the two bills came from unit A0813. Mr. Gerry Hanlon who works with the manufacturer of the dye packs gave evidence that the staining on these two bills are consistent with the staining caused by a dye pack.

[40] Sandy Hayes was also working on the count team on June 7, 2015. Subsequent to Mr. Garvey’s discovery of the two dyed twenty dollar bills, she was going through some of the money that had gone through the MPS machine and found five additional twenty dollar bills which were stained red. While she initially testified that she thought the five bills came from the same machine as the other two bills, she agreed on cross examination that she could not say that the five twenty dollar bills that she found came from the same machine as the one that Mr. Garvey had identified. Again, these bills were reviewed by Mr. Hanlon who testified that the staining had come from a dye pack.

[41] The evidence of the casino staff supports the following conclusions:

1. There were a total of two twenty dollar bills which were stained with red dye and which came from the slot machine A0813 which is the same slot machine which was being used by Mr. Mitchell on the evening of June 5.
2. Five additional red stained bills were found by Ms. Wilkie on the count which was performed on June 7, but which could not be directly attributed to any particular machine. In total there were seven red stained twenty dollar bills which would have been inserted into one or more slot machines between the morning of June 5 and the morning of June 7, which is within the time frame that Mr. Mitchell attended the casino.
3. The total number of bills identified with red dye at the Mohawk Casino was seven, which is one less than Mr. Mitchell is seen to insert in slot machine A0813. Thus, the number of bills found with red dye at the count does not rule out Mr. Mitchell as the person responsible for inserting those bills.

[42] The defence argues that the evidence from the Mohawk Casino is of little value because there were clearly other patrons who would have played the same machine and there is no evidence as to what type of currency Mr. Mitchell inserted into the machine nor do we know how much he won or lost on the spins he did make. Nor do we know whether five of the seven twenty dollar bills were even from the machine Mr. Mitchell was playing at. Nevertheless, I find that the evidence from the Mohawk Casino does have significant probative value. I have concluded that Mr. Mitchell’s activities at the Mohawk Casino were very suspicious. We know from the evidence of Mr. Garvey that at least two of the twenty dollar bills that had red dye on them came from slot machine A0813, the same machine that Mr. Mitchell inserted currency into. I also accept that the discovery of red stained bills at a casino is a very rare occurrence. None of the casino staff who testified in the action had ever encountered this situation previously. I infer that it is most likely that all of the red dyed currency came from the same machine and were inserted by the same person. The evidence of Ms. Morris is that no other individual other than Mr. Mitchell was observed engaged in the type of suspicious activity at that machine for the relevant time frame. There is no evidence before me which confirms that the dye stained bills came from the robbery at CIBC. Nevertheless, the evidence does legitimately point to Mr. Mitchell as a suspect who may have inserted the red dyed twenty dollar bills in exchange for vouchers which could be used to obtain unmarked currency. This evidence on its own does not rule out the possibility that another person could have been responsible, nor does it establish that the bills came from the CIBC robbery, but I consider it to be quite significant, in my consideration of the totality of the evidence including the evidence of the discovery of red dyed bills following Mr. Mitchell’s attendance at the Kawartha Downs Casino.

Evidence from the Kawartha Downs Casino

[43] Mr. Mitchell attended at the Kawartha Downs Casino on June 6 and June 8, 2015. Video surveillance was taken and entered into evidence at this trial. The defence acknowledged that it was Mr. Mitchell whose activities are shown on the video.

[44] On June 6, Mr. Mitchell attended at the casino at 4:08 p.m. He left the casino at 5:15 p.m. On June 8, he arrived at the casino at 7:45 p.m. and left at 8:34 p.m.

[45] There was a counting of the money from the slot machines which was done on the morning of Tuesday, June 9, 2015. The previous count would have been done on the morning of Saturday, June 6, 2015. Thus, the counting which was performed on June 9 would have counted money from June 6, 7 and 8.

[46] During the counting which was done on June 9, there was a large volume of red stained bills discovered in the count. These bills totalled $905 and included denominations of fives, tens and twenties. In addition, in an Agreed Statement of Facts marked as Exhibit 5, it was acknowledged that the serial numbers on sixteen of the ten dollar bills seized from the Kawartha Downs Casino were linked to the decoy bills stolen from the CIBC bank on June 5, 2015. I infer from these facts that the stained money found on June 9, 2015 at the Kawartha Downs Casino was money which was stolen from the CIBC on June 5, 2015.

[47] Exhibit 15 is an Occurrence Report prepared at the Kawartha Downs Casino. It includes a reference to what machines the dye stained money came from. There is an issue about the admissibility for this portion of the document which I will deal with later in these reasons. At this point I will deal with the evidence relating to the money found at the Kawartha Downs Casino without reference to any of the evidence as to which machines the funds came from.

[48] Janna Skora was a Surveillance Supervisor at Kawartha Downs in June 2015. She identified what she considered to be suspicious activity on the part of Mr. Mitchell. On June 6, Mr. Mitchell is seen approaching slot machine C0201 and sitting down. He is then seen accessing what appears to be a plastic bag in his pocket. Ms. Skora testified that this was unusual. Further, Mr. Mitchell was observed repeatedly taking money and putting the bills into the slot machines but the slot machines rejected the bills. One possible reason why a bill could be rejected is the presence of red dye. However, there are other potential explanations as well, such as a damaged, wrinkled or ripped bill.

[49] Ms. Skora referred to a pattern of minimal or no gaming at a number of these slot machines. Ms. Skora also referred to fidgeting behaviour by Mr. Mitchell and moving from one machine to another.

[50] Ms. Skora gave evidence about an incident which occurred at 8:10 p.m. on June 8. At that time Mr. Mitchell went to what is described as a cash ticket redemption machine or CTR, which allows patrons to insert either cash or vouchers and to receive vouchers or cash in return. CTR machines have closer camera scrutiny and there is a camera located directly above the CTR looking down at the machine. The video of the CTR machine shows Mr. Mitchell at the machine inserting two bills both of which are rejected by the machine. Ms. Skora testified that at least one of the bills which was rejected was a ten dollar bill. She stated that the upper portion of this bill has a reddish colour while the lower portion of the bill is the normal purple colour of a ten dollar bill. Screenshots from the CTR camera were introduced as evidence. Exhibit 18D is a CD which contains screenshots which were referred to by Ms. Skora during the course of her evidence.

[51] The defence argues that the clarity of the screenshots is not sufficient to identify a reddish colour on the bill. However, Ms. Skora has the benefit of interpreting video from the casino cameras on a routine basis in her role as Surveillance Supervisor. Further, having reviewed the screenshots in Exhibit 18D carefully, I am able to see a reddish tinge to what appears to be a ten dollar bill. I accept the evidence of Ms. Skora that Mr. Mitchell was attempting to insert a red dyed ten dollar bill at the CTR machine and that this bill was rejected by the machine likely because of the dye stain on the bill.

[52] The defence points to the fact that there are instances on June 6 and 8 where Mr. Mitchell is engaged in playing the slot machines. This was acknowledged by Ms. Skora in her evidence. The defence also points to the fact that Mr. Mitchell was not the only person who played the slot machines which are identified in the surveillance. The defence points to the fact that gambling may well be motivated by superstition and as a result, behaviour may seem odd and that it is not possible to exclude other players as being the source of the dye stained bills. The defence states that taking the evidence at its highest, at best Mr. Mitchell is observed with having two dye stained bills in his custody. It argues that this is not sufficient to exclude another player at the casino as the source of these bills. I conclude, however, that if Mr. Mitchell has two dye stained bills in his possession at the casino it is not reasonable to infer that another player at the casino was the source of those bills. Mr. Mitchell was under surveillance from the time he entered the casino on June 8 at 7:45 p.m. except for a period of less than 3 minutes when he went to the washroom. Prior to 8:10 p.m. when he was seen at the CTR machine he did not go to a cashier to exchange his vouchers for cash nor is there any observation of Mr. Mitchell receiving cash from another client of the casino. The suggestion that he received the red dye stained currency from someone else at the casino is in my view speculative and highly unlikely.

[53] It is also not reasonable to infer that Mr. Mitchell’s behaviour was motivated by superstition. Superstition might explain why he changed machines from time to time. It would not explain a pattern of minimal or no gaming at a number of slot machines nor would it explain the unusual behaviour of accessing bills from what appeared to be a plastic bag in his pocket. This latter observation is relevant given the evidence from a number of witnesses including Gerry Hanlon that the red dye from a dye pack might have the potential to rub off depending on how it was handled.

[54] With respect to the suggestion that another person could have been responsible for inserting some or all of the red dye stained currency into the slot machines, the evidence from all of the staff at both Mohawk and Kawartha Downs Casino’s was that finding dye stained bills was an extremely rare occurrence. None of the staff had any experience themselves finding red stained bills either before or after they were found in this case. Officer Kevin Coady who has been a member of the OPP since 2001 did testify, however, that he had experience where red dye stained currency had been found in casinos before. However, the weight of the evidence which I accept suggests this is a very rare occurrence.

[55] The inferences I draw from this evidence are as follows:

1. $905 of dye stained money was identified by the Kawartha Downs Casino on June 9. The funds were inserted into slot machines at the casino between the morning of June 6 and the morning of June 9.
2. All of the dye stained money came from the robbery on June 5 of the CIBC bank.
3. Mr. Mitchell was seen at the CTR machine on June 6 trying to exchange at least one dye stained bill at that machine.
4. I accept the evidence of Ms. Skora that on a significant number of occasions Mr. Mitchell acted suspiciously while in the casino on June 6 and 8. It was similar in a number of respects to what was observed at the Mohawk Casino.
5. Finding red dye stained currency in slot machines at a casino is a very rare occurrence.
6. The evidence points very strongly to Mr. Mitchell as being the individual who inserted the red dyed currency into the slot machines at the Kawartha Downs Casino.

Analysis

[56] As noted previously, the evidence in this case is circumstantial. Because of this the Crown must satisfy the court that the accused’s guilt is the only reasonable inference to be drawn from the proven facts. However, in considering circumstantial evidence the court ought not to consider the circumstantial evidence in a vacuum. Instead the totality of the evidence must be considered. Individual items which may not on their own establish guilt beyond a reasonable doubt may cumulatively do so. This position was recognized in R v. Uhrig, 2012 ONCA 470. In that case the court of appeal stated,

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction.

[57] It is also significant to understand the applicable principles relating to the evidence suggesting that Mr. Mitchell had possession of the stolen money when he attended at the Mohawk and Kawartha Downs Casinos subsequent to the robbery. In R. v. Kowlyk, [1988] 2 SCR 59, the Supreme Court of Canada set out the basic principles for the doctrine of recent possession as follows:

On the basis of the Canadian authorities referred to above, I am of the view that it is clearly established in Canadian law that the unexplained recent possession of stolen goods, standing alone, will permit the inference that the possessor stole the goods. The inference is not mandatory; it may but need not be drawn. Further, where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.

[58] The four requirements that must be met before the doctrine is applicable are as follows:

1. That the accused was in possession of property.
2. That the property was stolen.
3. That the theft was recent.
4. That the accused’s possession of the property was unexplained.

[59] Possession of the property is unexplained if there is no explanation provided at all, or if any explanation offered could not reasonably be true.

[60] I am satisfied that the criteria for the doctrine of recent possession have been met in the present case. I am satisfied that Mr. Mitchell had possession of currency stolen from the CIBC in the June 5 robbery. The evidence to support this inference includes the following:

1. Red dye stained money was found in both the Mohawk Casino and the Kawartha Downs Casino following visits by Mr. Mitchell to those casinos.
2. At least two of the seven red dye stained bills found at the Mohawk Casino were definitely linked to the same slot machine Mr. Mitchell was playing at.
3. Finding red dye stained money is a very rare occurrence which staff at both casinos had never seen before.
4. The red dye stained money found at the Kawartha Downs Casino came from the robbery on June 5 of the CIBC bank.
5. Mr. Mitchell engaged in suspicious activity at both the Mohawk and Kawartha Downs Casinos.
6. Mr. Mitchell is seen handling dye stained money at the CTR machine located at the Kawartha Downs Casino.

[61] I further conclude that the theft was recent. Mr. Mitchell’s attendance at the Mohawk Casino was within approximately five hours of the robbery. His attendance at the Kawartha Downs Casino was within a day and three days of the robbery.

[62] Finally, I conclude that Mr. Mitchell’s possession of the stolen property was not explained by any evidence at trial. There was simply no explanation in the evidence at trial as to why Mr. Mitchell would be in possession of the money stolen from the CIBC bank.

[63] In summary, there is compelling circumstantial evidence linking Mr. Mitchell to the robbery. Not all of this evidence on its own would be sufficient to establish the identity of Mr. Mitchell beyond a reasonable doubt as the person responsible for the robbery. However, when taken together there is compelling evidence leading to the conclusion beyond a reasonable doubt that Mr. Mitchell committed the robbery. This includes:

1. Mr. Mitchell’s physical attributes are consistent with the evidence of the eye witnesses and the available video of the robbery.
2. Mr. Mitchell’s vehicle is consistent with the description given by the eye witnesses and the available video of the vehicle used by the robber.
3. The clothing worn by Mr. Mitchell at the time of his attendance at Mohawk Casino shortly following the robbery is identical to that of the individual who committed the robbery.
4. I find that I am entitled to apply the doctrine of recent possession and rely on that doctrine to find there is a direct link between Mr. Mitchell and the red dye stained money which was found at the Mohawk and Kawartha Downs Casinos. The inference I draw is that Mr. Mitchell had possession of the proceeds of the robbery because he was the person who committed the robbery.

[64] In making this finding, I have considered whether the evidence or lack of evidence would support an inference inconsistent with guilt. In addition to the other theories suggested by the defence and which have been considered in these reasons it was suggested that the absence of dye staining in a black bag seized by the police was inconsistent with a finding of guilt. In the evidence of Officer Cultrera, he was cross-examined about the search which was carried out of Mr. Mitchell’s vehicle and his home. No dye stained clothing was found by the police. There was a black bag seized which did not show any evidence of red dye. This black bag was entered as an exhibit at trial. The evidence of Mr. Hanlon is that if the stolen money was placed in that bag at the time of the robbery, one would expect to see red dye staining on the inside of the bag. The evidence of the witnesses to the robbery and the cellphone video clearly establishes that the robber carried a black bag to collect the proceeds of the robbery. It is apparent, however that the black bag seized by the police at the time of Mr. Mitchell’s arrest is not consistent with the description of the black bag which was observed by witnesses to the robbery. The black bag which was described by the witnesses and which is shown in the video is a rectangular shape which is different than the soft sided black bag seized by the police at the time of Mr. Mitchell’s arrest. I am satisfied therefore that the black bag seized at the time of Mr. Mitchell’s arrest is not the black bag which was used in the robbery. The absence of red dye in the black bag found in Mr. Mitchell’s vehicle at the time of his arrest is not inconsistent, therefore, with Mr. Mitchell being responsible for the robbery.

[65] For these reasons, I conclude that the Crown has met its burden of proving beyond a reasonable doubt that the defendant was in fact responsible for the robbery at the CIBC on June 5, 2015. I am satisfied that the evidence in this case when considered in its totality excluded all reasonable alternatives to guilt. I therefore find that the defendant is guilty of all 3 counts set out in the indictment.

Occurrence Report prepared June 10, 2015

[66] Exhibit 15 is an Occurrence Report prepared by Ms. Kira Wannamaker. Most of this report is not controversial. It simply documents the activities of Mr. Mitchell which was observed through video surveillance of his activities at the casino on June 6 and 8, 2015. The videos of the surveillance have been retained and therefore the description of his activities can be compared to the video surveillance to confirm its accuracy. However, at the end of the Occurrence Report there is a brief summary of information received from the Count Team Supervisor, Reesa Fallis. The admissibility of this information is in dispute. The summary of this information sets out the slot machine numbers at Kawartha Downs where the red dyed currency had been found. The reason why this portion of the report was in dispute is because the surveillance from the counting room was no longer available and therefore the accuracy of the information contained in the report could not be confirmed. In addition, the original notes made by Ms. Fallis where she recorded the machine numbers where the red dyed currency had been found have been destroyed. As a result, the information contained in this portion of the report was hearsay. Neither Ms. Fallis nor Ms. Cascanette who conducted the count at the Kawartha Downs Casino on June 9 and who found the red dyed currency during the course of their count had any recollection either with or without reference to Exhibit 15 as to which slot machines had contained the red dyed currency.

[67] The Crown sought to rely on the information contained in Exhibit 15 for purposes of establishing that the red dyed currency which was found came from slot machines that Mr. Mitchell had played at during his attendances at the Kawartha Downs Casino on June 6 and 8, 2015. The defence objected to the admissibility of this evidence.

[68] Rather than deal with this issue separately during the course of the trial by way of a voir dire, it was agreed by the parties that I would hear the evidence at trial about the preparation of Exhibit 15 as part of a blended voir dire and then give my decision on the admissibility of this evidence as part of my reasons for judgment.

[69] There is no doubt that the slot machine identification information contained in Exhibit 15 is hearsay. The Crown seeks to introduce this evidence for the truth of its contents. The issue which arises is whether this hearsay statement is properly admissible.

[70] In R. v. Khelawon, [2006] 2 S.C.R. 787, the Supreme Court of Canada set out the governing principles with respect to the admissibility of hearsay evidence. Those principles are as follows:

1. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
2. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, as required by the principled approach.
3. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in a particular case.
4. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[71] In the present case, I have reached a conclusion on the guilt of the accused without the necessity of considering the evidence in question. As a result, my comments which follow will properly be considered as obiter.

[72] The Crown initially took the position that the summary contained in Exhibit 15 could be introduced under four different recognized exceptions to the hearsay rule. However, in my review of the evidence I have concluded that the only applicable categories under which the evidence could possibly be admitted is under the common law business records exception or the principled exception where the indicia of reliability and necessity are established.

[73] With respect to the common law business records exception, it applies to both oral and written statements which have been made reasonably contemporaneously, in the ordinary course of business by a person having personal knowledge of the matter who are under a duty to make the record or report and there is no motive to misrepresent the matters recorded. In this case all of the criteria would appear to be satisfied except for one. That issue is whether the records were made in the ordinary course of business by the casino. I have a concern as to whether that criteria has been satisfied in this case. The evidence of Ms. Kira Wannamaker who prepared the report is that occurrence reports are conducted routinely at the casino. There are policies with respect to the preparation of the report and staff are trained how to prepare the reports by way of a video review. The video surveillance which forms part of the review is only retained, however if a copy of the video has been made as part of the review. This evidence would tend to support the Crown’s position that the report was prepared as a business record. However, the evidence at trial was that there was no policy at the casino which covered a situation where dye stained bills are found in the casino’s slot machines.

[74] The evidence of Ms. Reesa Fallis who I found to be a very forthright and credible witness is that there was no procedure she was aware of to follow when she discovered red dye stained bills as part of the count. Her response to this situation was an ad hoc response based on what she thought was appropriate in the circumstances. This included notifying her supervisor and making a note of the bill numbers and where they were discovered. However, what seems to have flowed from that decision is an ad hoc process of dealing with the situation. Initially, for example Ms. Fallis reported the discovery to surveillance who oversaw the count process. She reported to surveillance again at the end of the count. She then took her notes to Mike Dean who was her supervisor. There was no evidence from Mr. Dean as to what he did and no evidence as to what happened to Ms. Fallis’ notes except for the fact that they are no longer available. This evidence suggests to me that the response to the discovery of the red dyed currency did not fall into a process which was part of the usual and ordinary course of business for the casino. The summary of machine numbers in Exhibit 15 does not fall within a typical kind of recording which provides some assurance of its inherent reliability.

[75] In R. v. Monkhouse, 1987 ABCA 227, the Alberta Court of Appeal noted the underlying rationale for the admission of business records by stating as follows:

These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.

[76] Given the way in which the casino’s investigation evolved, I have difficulty concluding that this portion of Exhibit 15 can properly be admitted as a business record. Having said that, the issue with respect to its reliability poses an even greater challenge to admissibility. In this regard, I will turn now to the principled exception to the hearsay rule which requires both indicia of necessity and reliability.

[77] In this case, the defence acknowledges that the requirement of necessity has been established but challenges the reliability of the information contained in the Occurrence Report.

[78] On the issue of reliability, the evidence at trial establishes that slot machines can be identified both by their location within the casino and their slot machine number. The evidence of Ms. Fallis is that as the red dye stained bills were brought to her attention in the counting area she recorded both the location and slot machine number which identified where the bills had come from. This information was apparently recorded on a spare piece of paper. She called surveillance which oversees the counting process on two occasions. The first was to notify them of red dye stained bills. At the end of the counting process she called surveillance again. She could not identify exactly who she spoke with as apparently casino procedure dictates that the identity of the surveillance staff not be disclosed to the count staff. The evidence of Ms. Fallis is that she gave the surveillance officer both the location number and the slot machine number for each of the red dyed bills which were found. As noted above, she then subsequently gave the piece of paper she had recorded the information on to her supervisor Mr. Mike Dean. However, there is no evidence as to what Mr. Dean did with the piece of paper.

[79] The evidence of Ms. Janna Skora is that she was a Surveillance Supervisor at Kawartha Downs at the time the red dye stained currency was found by the counting team. She stated that she received a telephone call from Ms. Fallis in the count room at around 2:00 p.m. Ms. Fallis provided her with the denominations and serial numbers of the currency. According to Ms. Skora, however, she was just provided with a list of the asset numbers or slot machine numbers and that she had to go to a conversion chart to get the location numbers for the machines. This evidence suggests she was not given location numbers for the machines. It represents a significant inconsistency between her evidence and that of Ms. Fallis.

[80] Ms. Skora stated that having received the information from Ms. Fallis, and having made her own list of the slot machine locations she provided the slot machine location list to her staff for the purposes of a video review. Because she was going off shift, she provided the list of machine locations to one of her staff to conduct the video review. That list would have been passed from shift to shift to the surveillance staff who proceeded to conduct the review. The results of the review and the original slip of paper prepared by Ms. Skora would then have been provided to Ms. Wannamaker who received all of the information at the start of her shift on the morning of June 10. She then proceeded to prepare the occurrence report. There is, however, no record of who actually conducted the review.

[81] Further inconsistencies arose during the evidence of Ms. Wannamaker who prepared the report. In her evidence, she made reference to the fact that she thought she had the original notes from Reesa Fallis, but she could not be sure. This is inconsistent with the evidence of Ms. Fallis who said she gave her notes to Mr. Dean as well as Ms. Skora who said she prepared the list which was used by her staff. Further, Ms. Wannamaker stated that she also had a list with the machine numbers which would be separate from the list of machine locations. She was not sure who prepared that list. This appears to be at variance with the evidence of Ms. Skora who said she gave the locations to her staff to conduct the review. What is also concerning here is that there is a lack of clarity over how many lists were used in the review and who they were prepared by. Ms. Wannamaker at least initially thought she had the original documentation which had been prepared by Ms. Fallis, but this would not appear to be consistent with the evidence of either Ms. Fallis or Ms. Skora. This is not to suggest that there were credibility issues amongst those witnesses. It simply reflects the fact that the flow of information on the critical issue of the identification of the machines involved has some degree of uncertainty associated with it.

[82] I have concluded that the circumstances surrounding the preparation for this portion of the occurrence report in question does not provide sufficient evidence to confirm the accuracy of the report. As a result, I find that this portion of the report has not met the threshold level of reliability required for it to be admitted in evidence. I therefore have not considered this portion of the report in my analysis of the case against the defendant.

Justice M. McKelvey

Released: April 28, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JEFFEREY J. MITCHELL Defendant REASONS FOR JUDGMENT Justice M. McKelvey

Released: April 28, 2017