Court File and Parties
COURT FILE NO.: CR-16-400003320000 DATE: 20170404 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – CONREY ZAVIER FRANCIS Accused
Counsel: Kathy Nedelkopoulos, for the Applicant Adam Schultz, for the Respondent
HEARD: March 21-24, 27, 2017
Reasons for Judgment
DUNNET J.: (Orally)
[1] The accused has been charged with armed robbery at two banks. He has also been charged with using an imitation firearm while committing the indictable offence of robbery and having his face disguised with a balaclava with intent to commit an indictable offence.
Toronto-Dominion Bank, 3174 Yonge Street, Toronto
Domenico Rosso
[2] On January 2, 2015, at 6:30 p.m., Domenico Rosso was working as a customer service representative at the Toronto-Dominion Bank at 3174 Yonge Street in Toronto. He was assisting a customer when a man standing six or seven feet in front of him pulled out a grey handgun from his right coat pocket and pointed it at Mr. Rosso.
[3] The man threw a grocery bag on the counter in front of Mr. Rosso and said, “Give me your fucking money.” He demanded fifties and hundreds and warned Mr. Rosso not to press the button to alert police.
[4] To access the money, Mr. Rosso required Adriane Hunter, a financial services representative, to swipe her security card at the cash dispensing unit located behind Mr. Rosso. Mr. Rosso placed four $50 bills and a decoy pack with counterfeit bills into the bag the man had given him. The man grabbed the bag and walked out of the bank.
[5] Mr. Rosso testified that the man was in his thirties or forties, and five feet, nine inches to six feet tall. He described the man as a huskier gentleman, but not fat, weighing 200 to 250 pounds. Mr. Rosso testified that the man spoke without an accent.
[6] The man was wearing loose-fitting clothing and a hoodie. A dark grey ski mask covered his face, including parts of his eyes and nose. Mr. Rosso was able to see the colour of his skin through the opening of the mask around his eyes. Mr. Rosso testified that the man looked like he had a darker brown complexion and he could have been Black, or Asian, or South-East Asian.
[7] In his testimony, Mr. Rosso identified the accused seated in the prisoner’s dock as the man who robbed the bank. In cross-examination, he agreed that he made the identification because he assumed that the police were diligent in arresting “the right guy.”
[8] Mr. Rosso testified that he did not think the man’s gun was real because it looked dirty and discoloured. It did not have a metallic finish and could have been made of plastic.
Gretchen Wintermeyer
[9] Gretchen Wintermeyer was a customer who was involved in a transaction with Mr. Rosso when she heard someone say something. She turned around and realized that a man was holding a grey gun in his right hand and pointing it at Mr. Rosso. He tossed a plastic bag at Mr. Rosso and in a loud and threatening voice, demanded fifties and hundreds.
[10] Ms. Wintermeyer froze and made a mental note to stand still and not agitate the man. She did not look at him. She saw Mr. Rosso swipe his card at the cash dispensing unit and then ask a female teller to swipe her card.
[11] Before he left the bank, the man said, “Don’t call the cops. If ‘yous’ fucking do, I’ll come back and take ‘yous’ hostage.”
[12] Ms. Wintermeyer described the man as five feet, eight inches to five feet, ten inches tall, with a stocky, solid build, weighing 200 to 220 pounds. He was Black and had a Caribbean accent.
[13] He wore a grey hoodie that covered his head and a coat down to his knees. His face was covered with a balaclava that exposed his eyes and nose and a bit of his mouth.
Adriane Hunter
[14] Adriane Hunter was sitting at a desk behind the wickets when she saw a man jogging into the bank.
[15] He approached Mr. Rosso and stood in front of him. He motioned for Ms. Hunter to come towards him. When he was two or three feet away from her, the man waved a gun at her and threw empty grocery bags at her and Mr. Rosso. She described the gun as silver and thought that it had been painted a “tinny” or aluminum colour and looked “fake.”
[16] When the man told Ms. Hunter to empty the tills, she explained to him that there was no money in the tills. He told her that if she called the police or pressed the panic button, it would be a hostage situation. She was scared and worried that she would die.
[17] The man was angry and yelling and he was constantly sniffling as if he had a cold or something wrong with his nose.
[18] In her testimony, Ms. Hunter explained that Mr. Rosso was the only teller that day and after he used his card three times to access cash from the dispensing unit, a supervisor had to override his request.
[19] Mr. Rosso swiped his card and asked Ms. Hunter to swipe her card. Mr. Rosso put the cash into one of the bags and handed it to the man, who then left the bank.
[20] In examination-in-chief, Ms. Hunter described the man as being between five feet, ten inches to five feet, eleven inches tall and overweight. In cross-examination, she agreed that she told the police that the man was between 25 years old and his forties, and five feet, nine inches to five feet, ten inches tall and “a bigger guy, not athletic,” weighing 200 pounds.
[21] She agreed she told police he was wearing a black light-weight winter coat, gloves and a ski mask with the eyes and mouth cut out.
[22] Ms. Hunter’s evidence was that she saw the man’s eyes and maybe his mouth. She described his skin colour as brown or “light-skinned black.” Although she agreed that individuals with his skin colour would include African Canadians or African Americans with a lighter shade of black skin, or South-East Asians, or individuals of Middle-Eastern or Hispanic origin, she said that she focused on the colour of the man’s skin and not his ethnicity.
Eric Robinson
[23] Customer relations coordinator Eric Robinson was seated at his desk a few metres from the front doors to the bank when a man came into the bank moving swiftly and brandishing a silver gun in his left hand. His arm was in an upright position with the nozzle of the gun facing towards the ceiling.
[24] As he veered towards the wickets 20 feet away, the man said, “This is a robbery. Nobody call the cops. Don’t press any buttons. Otherwise I’ll shoot.”
[25] First, he approached Ms. Hunter and demanded money. Then he went to Mr. Rosso and demanded money. He was not yelling or screaming, but made his demands known.
[26] Mr. Robinson saw Mr. Rosso swipe his card at the cash dispensing unit and give the man money. The man put his gun into the front left pocket of his hoodie and left the bank.
[27] When it was suggested to Mr. Robinson that the man did not use the words, “I’ll shoot,” and used the words, “I will take you hostage,” Mr. Robinson said that the word “hostage” never came up.
[28] He agreed that when the man was speaking to the tellers, Mr. Robinson would have been looking at the man’s back and the tellers would have been in a better position to hear what he was saying.
[29] In examination-in-chief, Mr. Robinson described the man as five feet, ten inches tall. He agreed that he told police that the man was a white male, 35 to 45 years old, five feet, nine inches tall and “fairly chubby,” weighing 225 to 230 pounds.
[30] Mr. Robinson testified that the man was wearing a hoodie over his head. His pants and top were brown and he wore black sneakers. His mouth and nose were covered with a mask and no hair was visible.
[31] Mr. Robinson agreed that he told police that the man was wearing black sweat pants, a brown hoodie sweat top and purple surgical gloves. Only the eyes and mouth were cut out of the mask. He testified that he saw the man’s eye region and forehead as the man walked past him and he described the man as Caucasian with white skin.
Shernice Cassar
[32] Customer service representative Shernice Cassar was seated at a desk counting cash in a room at the back of the bank behind the tellers’ wickets.
[33] She heard someone say, “Give me all the money.” She stood up and through a glass window in the wall of the room, through which she could see the floor of the bank, she saw a man in dark clothing with a mask covering his face standing in front of Mr. Rosso’s wicket. She recalled seeing a silver gun that was six to eight inches long in the area of the man’s chest.
[34] She only looked through the window for two seconds because she wanted to ensure that the money that she had been counting was secured. She was about to call the police when she heard the man say that he would come back if anyone called 911. She did not make the call and waited for someone to knock on the door to tell her that it was safe to leave the room.
[35] Ms. Cassar described the man as big, weighing 200 to 220 pounds. He was wearing dark clothing and a mask that covered his face, except for his eyes. In examination-in-chief, she testified that she did not know the colour of his skin. She agreed that she told police that the man was Caucasian with white skin.
[36] In cross-examination, Ms. Cassar said that when she gave her police statement, she thought that the man was white, but at trial, she was unable to remember the colour of his skin. She agreed that she would not have told the police that the man had white skin unless she was able to make that observation at the time.
Gonzalo Suarez
[37] Branch manager Gonzalo Suarez was in his office which was located 25 feet from the tellers’ wickets. He heard someone say, “This is a robbery,” and through the open door to his office, he saw a man with his right hand in the air holding a gun. The gun was big and grey with a “fake shine.”
[38] When Mr. Suarez first saw him, the man was in front of Mr. Rosso’s wicket. He heard the man say, “I want fifties and hundreds.”
[39] He recalled the man looking at him and saying, “Don’t call the police. If you call the police or do something, I will come back and take one of you.” He agreed that the man could have used the word “hostage.”
[40] Mr. Suarez kept his eyes on Mr. Rosso and Ms. Hunter, hoping that they would follow bank protocol in order to ensure that no one would be harmed.
[41] The next thing he recalled hearing the man say was, “Have a nice day,” as he left the bank.
[42] Mr. Suarez described the man as five feet, eight inches or five feet, nine inches tall, weighing 240 to 250 pounds.
[43] The man was wearing sweat pants and a sweater made from the same dark material. Mr. Suarez thought that the man was wearing gloves and white tennis shoes. His face was covered with a mask with holes for his eyes and mouth. It appeared to Mr. Suarez as if the man had made the mask himself because the holes were large.
Cheryl Chau
[44] Financial advisor Cheryl Chau was seated in the branch manager’s office when she heard someone yelling. Through the open door to the office, she saw a man wearing a hoodie and a dark ski mask covering everything but his eyes. He was walking towards Mr. Rosso yelling, “Give me all the cash. Do not press the button, or I will come back and shoot you.” Ms. Chau did not remember the man using the word “hostage.”
[45] The man paced back and forth holding a silver gun in his left hand. Ms. Chau told the police that based on the way the man was waving the gun around, it seemed light and did not appear to be real.
[46] Ms. Chau saw Mr. Rosso go to the cash dispensing unit and the man walk over to Ms. Hunter and tell her not to press the button. She saw Ms. Hunter open the tills to show the man that there was no cash inside.
[47] Ms. Chau recalled the man taking out a dark grey plastic bag, but she could not see if Mr. Rosso put anything into the bag. The man grabbed the bag and told Ms. Hunter to have a nice day.
[48] Ms. Chau described the man as over six feet tall, and weighing over 200 pounds.
[49] She told the police that his skin colour was white. She testified that she was able to make the observation by looking at the man’s eyes as he walked into the bank.
Toronto-Dominion Bank Security Video
[50] The security video from the Toronto-Dominion Bank is very grainy and the image is not clear. The video shows a person entering the bank at 6:31 p.m. and leaving at 6:33 p.m., wearing dark pants and a dark top, a hoodie over his head, white gloves and white shoes. None of the person’s face is visible.
Bank of Montreal, 1705 Avenue Road, Toronto
Joe Josephson
[51] On January 2, 2015, at approximately 6:50 p.m., Joe Josephson was working as a customer service representative at the Bank of Montreal at 1705 Avenue Road in Toronto. A man opened the door and entered the bank shouting, “Give me your money.” He wanted fifties and hundreds.
[52] With his right arm bent upwards at the elbow, the man was swinging a gun around in the air. Then he put the gun into the right front pocket of his hoodie and said that he did not want to hurt anybody.
[53] The man approached the wicket where customer service representative Jaime Gold was standing and said, “Give me all your big bills.” The man put a grey plastic bag on her wicket.
[54] Mr. Josephson was standing at the wicket beside Ms. Gold’s. The man asked Mr. Josephson if he had pressed the button, meaning the button in the wicket that alerts police of a robbery, and he said no.
[55] Assistant manager Tabitha Lobo approached Mr. Josephson and Ms. Gold and stood behind them. She explained to the man that the money was kept in a cash dispensing unit and he said, “Okay, give me the money.”
[56] Ms. Lobo removed $2000 and either Ms. Lobo or Ms. Gold put the money into the bag. The man asked Mr. Josephson and the women if they had pressed “the button” and they said no. He took the bag and said, “Have a good evening.” Then he walked out of the bank.
[57] Mr. Josephson said the man was in his late forties and about five feet, “tenish” inches tall. He was heavy-set and weighed 240 pounds or so.
[58] He was wearing a sweatshirt with a hood covering his head and purple disposable gloves. A balaclava covered his face, except for his eyes and mouth.
Bank of Montreal Security Video
[59] The security video from the Bank of Montreal shows a man entering the bank at 6:49 p.m. He is wearing dark-coloured pants and a dark top with a hoodie over his head. He is also wearing white gloves and white shoes. None of his face is visible except through a small opening for his mouth. He has a silver gun in his left hand. He pulls a bag out and puts it on the counter. He is seen grabbing the bag and leaving the bank at 6:51 p.m.
[60] In the video, the man’s shoes have Velcro fasteners and a black border around the top of the soles. In the frame captured at 6:49:50 p.m., the left shoe appears to have a dark scuff mark on the top of the shoe in the area of the baby toe.
Photographs of the Accused Taken on January 2, 2015
[61] At the time of the robberies, the accused was living at a community residential centre at 418 Sherbourne Street in Toronto. On January 2, 2015, he was captured on the security camera when he left the residence at 5:11 p.m. and again when he returned at 10:16 p.m.
[62] Photographs show him wearing dark pants and a dark jacket with a light coloured hoodie, white shoes with Velcro fasteners and a dark hat with red stripes.
Photographs of the Accused Taken on January 8, 2015
[63] On January 8, 2015, the police conducted surveillance of the accused and took photographs in which he is wearing dark pants and a dark jacket, a light-coloured hoodie, white shoes and dark hat with red stripes – clothing similar to the clothing that he was wearing in the photographs taken at his residence on January 2, 2015.
The Text Messages
[64] On December 15, 2014, at 7:21 p.m., Joanne Mcmillan sent a text message to the accused that read: “Hey did u hit a bank yet for Annie.” At 7:23 p.m., the accused replied: “Not yet soon I’m still working I’ll get it done tell her stop worrying.”
[65] On January 4, 2015, the accused sent a text message to someone named Stephanie that read:
Hey Stephanie your asking me why I’m so pissy yesterday I’m sitting in the mall for 7 hours all you want to do every night is party and fucking all these guys you don’t even care about your own body when you catch aids you think everything is a fucking joke you really take me for a fucking fool you couldn’t even come to the mall and spend time with me and now I have to pay a $200 phone bill and your on the phone laughing and sleeping you don’t even know the problems I have right now but who gives a fuck I’ll be back in prison soon anyways then your wish will come true for me to suffer in there you really think you are the only one in pain you injoy your life because soon you will forget all about me I’m just another guy who bought you thinks you remember one thing I never ever did nothing to hurt you
The Positions of the Parties
[66] The position of the Crown is that the accused committed both robberies using a gun and disguising his face with a balaclava and that he should be found guilty on all counts.
[67] The Crown relies on the following evidence in support of the assertion that the gun was real: Ms. Wintermeyer said that she froze when she saw the gun pointed at Mr. Rosso. Ms. Hunter said that she was worried that she would die when the man waved the gun at her. Ms. Chau heard the man say, “I will come back and shoot you.” Mr. Josephson heard the man say that he did not want to hurt anyone.
[68] The Crown submits, in support of its contention that the accused robbed the Toronto-Dominion Bank at 6:30 p.m. and the Bank of Montreal 20 minutes later, that the banks were located within a few blocks of each other and that in both robberies, the perpetrator wore the same clothing. Further, photographs from the security cameras at the accused’s residence capture him wearing similar baggy clothes with a hoodie and white shoes before and after the robberies.
[69] It is submitted that the shoes captured on the bank security videos are white and that the Bank of Montreal video shows that the shoes have Velcro fasteners and a black border on the top of the soles similar to the shoes worn by the accused in the photographs taken at his residence on January 2, 2015 and while he was under police surveillance on January 8, 2015.
[70] The Crown contends that in both robberies, the perpetrator used a silver gun and a grey plastic bag to hold the money. In both robberies, he demanded fifties and hundreds. Before he left, he told the employees to have a good day or a good evening.
[71] It is submitted that the witnesses were consistent with respect to the man’s height and weight. Further, Mr. Rosso and Ms. Hunter were in the best position to observe the man’s skin colour, whereas Mr. Robinson was mistaken and Ms. Cassar’s evidence cannot be relied on.
[72] The Crown suggests that the text messages are instructive and provide a motive for the robberies. When Joanne Mcmillan used the words, “hit a bank,” she meant “rob a bank” and the accused replied that he would “get it done” “soon.”
[73] It is submitted, further, that the telephone bill mentioned in the accused’s text of January 4, 2015 provides a financial motive for the robberies and the accused’s statement in the text message that he would be back in prison soon is further evidence that the accused was the person who robbed the banks.
[74] The defence submits that the eye witness accounts and circumstantial evidence do not prove beyond a reasonable doubt that the accused was the person who robbed the banks.
[75] It is submitted that the only apparent consistency in the evidence is that the robber was overweight and wore dark pants and white shoes.
[76] The defence accepts that there are similarities between the shoes captured on the bank security videos and the shoes worn by the accused at his residence and on January 8, 2015. The defence points out that the dark mark on the top left side of the man’s shoe visible on the Bank of Montreal security video is not on the left shoe in the photograph of the accused taken six days later.
[77] The defence contends that the witnesses’ evidence about the race and colour of the perpetrator’s skin is inconsistent. Mr. Rosso and Ms. Hunter agreed that the man they saw could have been a multitude of races. Ms. Chau initially told the police that the man was white, but when she saw the accused in court, she said that she could not remember the colour of his skin.
[78] Further, Mr. Rosso admitted that he made the in-dock identification because he assumed that the police caught the right man.
[79] The defence submits that the meaning that the Crown wishes to place on the text messages presumes that the accused is the man who robbed the banks. Further, the word “hit” in the message of December 15, 2014 is open to multiple interpretations and the accused could be returning to prison for reasons other than because he robbed the banks.
[80] Thus, it is the position of the defence that the accused should be acquitted on all counts.
[81] The defence notes, in the alternative, that the gun used in the robberies was not recovered. There is no evidence that the gun was functioning and the fact that the man said that he did not want to hurt anybody does not mean that the gun was real.
[82] It is submitted that the majority of the witnesses heard the man say that he was going to return and take hostages, not that he was going to return and shoot them. Therefore, the Crown has not discharged its burden of proving beyond a reasonable doubt that the gun used in the robberies was an actual firearm.
Analysis
[83] The case against the accused depends wholly or substantially on the accuracy of eyewitness identification. A trier of fact must be cautious about relying on eyewitness testimony to find an accused guilty of any criminal offence. Innocent persons have been wrongly convicted because eyewitnesses have made honest mistakes in identifying the person they saw committing a crime.
[84] It is possible for an honest witness to make a mistake in identification. Even a confident witness may be honestly mistaken, but entirely wrong about their identification of the person who committed the crime.
[85] In this case, all of the witnesses appeared to be telling the truth about what they saw and remembered during the robberies.
[86] There is similarity in their descriptions of the clothing worn by the man who robbed the banks. They testified that he was wearing dark pants and a dark top with a hoodie worn over his head. He was wearing a mask that covered his face, except for his eyes and mouth. Four of the witnesses said that he was wearing gloves.
[87] The person captured in the bank security videos was wearing dark clothing, a hoodie over his head, gloves and white shoes. None of the person’s face is visible in the Toronto-Dominion Bank video. In the Bank of Montreal video, none of the face is visible, except through a small opening for the mouth.
[88] The witnesses who described the man’s build were consistent in their description of the man as big, heavy-set, husky, overweight and chubby.
[89] With respect to the robbery at the Toronto-Dominion Bank, Ms. Wintermeyer and Mr. Suarez testified that the man was holding the gun in his right hand and Mr. Rosso said that he took the gun from his right coat pocket. However, Mr. Robinson and Ms. Chau testified that the man was holding the gun in his left hand.
[90] With respect to the robbery at the Bank of Montreal, Mr. Josephson testified that the man was holding the gun in his right hand. However, on the bank security video, the person is holding the gun in his left hand.
[91] Four of the witnesses testified that the gun appeared to be an imitation firearm. Mr. Rosso testified that the gun did not look real. Ms. Hunter said that it looked fake. Mr. Suarez said that it had a “fake shine.” Ms. Chau testified that it did not seem to be real.
[92] Mr. Rosso testified that the man did not have an accent, whereas Ms. Wintermeyer said that he spoke with a Caribbean accent.
[93] The evidence of Mr. Rosso, Ms. Hunter, Mr. Robinson and Mr. Josephson put the man’s age between 25 years old and late forties. The seven witnesses who testified about his height estimated that it was between five feet, eight inches and over six feet, a difference of more than four inches.
[94] All of the witnesses testified about the man’s weight and their estimates were between 200 to 250 pounds, a 50 pound difference.
[95] The discrepancy in testimony regarding the colour of the man’s skin is difficult to reconcile. Mr. Rosso testified that he had a darker brown complexion. Ms. Hunter said that his skin was brown or “light-skinned black.” Ms. Wintermeyer said that the man was Black. On the other hand, Mr. Robinson, Ms. Cassar and Ms. Chau testified that the colour of the man’s skin was white.
[96] Of greater concern is the evidence with respect to the man’s race. Mr. Rosso testified that he could have been Black, or Asian, or South-East Asian. Ms. Wintermeyer said that he was Black. Ms. Hunter agreed that the man could have been African Canadian or African American with a lighter shade of black skin, or South-East Asian, Middle-Eastern or Hispanic. Mr. Robinson and Ms. Cassar testified that the man was Caucasian.
[97] Mr. Rosso identified the accused as the man who robbed the Toronto-Dominion Bank for the first time in the courtroom where the accused was sitting in the prisoner’s dock. Mr. Rosso agreed that he made the identification because he assumed that the police arrested the right man. This identification is entitled to no weight.
[98] The bank security videos are not of sufficient clarity and quality to conclude that the person in the banks is the accused or that the shoes seen in the photographs of the accused taken on January 2 and January 8, 2015 are the same shoes worn by the person in the bank.
[99] Moreover, the text messages are capable of more than one interpretation and this piece of circumstantial evidence does not, in my view, assist in providing the motive for the robberies, as suggested by the Crown.
[100] In assessing the eyewitnesses’ identification, I have considered the reliability of the witnesses, the circumstances in which they made their observations and the descriptions they gave after they made their observations.
[101] There are significant inconsistencies with regard to age, height and weight, as well as the hand in which the man was holding the gun. The most glaring inconsistencies, however, are with respect to the colour of the man’s skin and his race.
Disposition
[102] As this case depends entirely, or to a large extent, on the eyewitness identification, given the inconsistencies in the eyewitnesses’ testimony, I am not satisfied beyond a reasonable doubt that the accused was the man who robbed the Toronto-Dominion Bank or the Bank of Montreal on January 2, 2015.