Court File and Parties

Court File No.: CR-16-30000678 Date: 2017-05-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen Matthew Shumka for the Crown

- and -

Jermaine Smith Christian Pearce for Mr. Smith

Heard: April 10 - 13, 18, 19, May 1 and 12, 2017

Reasons for Decision

Corrick J. (orally)

Introduction

[1] Mr. Smith pleaded not guilty to two counts of robbery, two counts of disguise with intent, and one count of failing to comply with a recognizance. He was tried by me without a jury.

[2] At the outset of the trial, a voir dire was held to determine the admissibility of a statement Mr. Smith gave to the police following his arrest. On consent of both counsel, I heard the evidence on the voir dire and the trial together, other than the evidence of Mr. Smith, who testified only on the voir dire. On April 27, 2017, I ruled the statement inadmissible.

[3] Following my ruling, the Crown called further evidence. Mr. Smith called no evidence on the trial.

Background

[4] The following background facts are not in dispute.

[5] On February 2, 2014, at about 10:20 p.m., two masked men robbed Zhong Fei Yao at gunpoint. At the time, Mr. Yao was working in his convenience store, Hadfield Variety, at 80 Dearham Wood in Toronto. The bandits stole scratch lottery tickets, among other things.

[6] Sometime during the late evening of February 6, 2014, before 11:00 p.m., Vegnesh Ganesh was robbed at gunpoint by two masked men while he was working in his family’s convenience store, Daisy Mart, at 2537 Warden Avenue in Toronto. The bandits stole scratch lottery tickets, among other things.

[7] Mr. Smith’s girlfriend at the time, Diwayna Barrett, redeemed winning scratch lottery tickets that had been stolen in the February 2nd robbery on February 3, 2014 at three different locations between 12:28 and 1:57 p.m. She redeemed winning tickets stolen in the February 6th robbery on February 7, 2014 at four different locations between 9:37 a.m. and 12:07 p.m.

[8] Police identified Ms. Barrett from surveillance footage from some of the stores where she had redeemed the stolen tickets. Further investigation revealed her relationship with Mr. Smith. It also revealed that Mr. Smith was subject to a judicial interim release order that prohibited him from communicating with Ms. Barrett, and required him to reside at 101 White Oaks Court, Apt. 904 in Whitby.

[9] Police had mobile surveillance on Mr. Smith between February 18 and March 3, 2014. Mr. Smith was seen numerous times communicating with Ms. Barrett throughout this period.

[10] On March 5, 2014, police executed search warrants at Ms. Barrett’s residence at 3171 Eglinton Avenue East, Apt. 215 in Scarborough and at Mr. Smith’s residence at 101 White Oaks Court, Apt. 904 in Whitby. Ms. Barrett and Mr. Smith were present together at 101 White Oaks Court, contrary to the judicial interim release order prohibiting Mr. Smith from contacting or communicating with her. This is the basis for the fail to comply with a recognizance charge against Mr. Smith. Mr. and Ms. Barrett were arrested. Ms. Barrett was later released without charge.

[11] No evidence relating to the February 2 and 6 robberies was uncovered during the execution of the search warrant at Mr. Smith’s residence at 101 White Oaks Court.

[12] Eight instant lottery scratch tickets that had been stolen in the robberies were seized from Ms. Barrett’s residence: three from the February 2nd robbery and five from the February 6th robbery. All of the eight tickets were losing tickets. Nothing else related to the robberies was found at Ms. Barrett’s residence.

The Issue

[13] The issue in this trial is the identification of Mr. Smith as one of the people who robbed Mr. Yao and Mr. Ganesh.

The Evidence

Evidence of Mr. Yao

[14] The robbery of Mr. Yao was captured by a surveillance camera. The video is marked as Exhibit 9. It shows two masked men entering the store. One man is armed with a gun. He is wearing a striped hoodie. The other man is wearing black clothing.

[15] Mr. Yao testified that both men had black skin and Jamaican accents. He could see their skin around their eyes and neck. Although they did not say much, Mr. Yao recognized their accents. The men stole Mr. Yao’s wallet, Du Maurier and Players cigarettes, a diaper bag in which Mr. Yao had a few hundred dollars in cash and some bank statements, an envelope containing some cash, and some lottery tickets.

[16] During this robbery, Mr. Yao was punched twice; once near his right eyebrow and once in the mouth. His tooth was chipped, and he required stitches to the right side of his temple.

Evidence of Mr. Ganesh

[17] The robbery of Mr. Ganesh’s store on February 6 was not videotaped. Mr. Ganesh testified that late in the evening on February 6, two men entered his store. Both men were wearing balaclavas. Both men had dark skin. One man carried a hockey stick and a gun. The other man carried a sickle. The robber with the sickle stuffed packages of cigarettes into a black backpack that he wore on his chest. He also took between four and five hundred dollars from the till. The other robber took lottery scratch tickets. International long distance telephone cards were also taken in the robbery.

[18] Mr. Ganesh’s father was in the back of the store during the robbery. He ran to the front with two sticks in his hand. He swung and hit the robber with the sickle in the face. The robbers fled out the front door. Mr. Ganesh chased the robber who held the sickle, but stopped the pursuit when his father called him back. Mr. Ganesh found a black balaclava on the ground. He thought it had been freshly discarded because it was warm.

[19] Mr. Ganesh believed that the two robbers had French African accents, an accent he was familiar with because some of his friends have that accent. He not only heard the two robbers speaking to him and to each other throughout the robbery, he also heard the robber with the gun speaking to someone on his cell phone a half an hour before the robbery, when he came into the store to “case” it. Mr. Ganesh recognized his accent as French African.

[20] Mr. Ganesh testified that the man who had been in the store earlier was wearing the same bandana as the robber with the gun was wearing.

Ms. Barrett’s Evidence

[21] Ms. Barrett is Mr. Smith’s former girlfriend. Together they have one child. In February 2014, they were a couple. Mr. Smith was living off and on with her at 3171 Eglinton Avenue East, Apt. 215 in February 2014. They are no longer in a relationship. Their relationship ended a few months after Mr. Smith was arrested in March 2014, and she has not spoken to him since.

[22] Ms. Barrett admitted that she is the woman seen in the surveillance tapes, (Exhibits 4, 5, 7, and 8) redeeming scratch lottery tickets. She testified that Mr. Smith gave her the tickets. She could not remember when.

[23] Mr. Smith told Ms. Barrett that he had used his Petro-Points to buy gift cards that he then used to buy the lottery tickets. Ms. Barrett did not know that the tickets had been stolen in robberies. She described herself as a hard gambler who regularly bought scratch lottery tickets. Mr. Smith also bought her scratch lottery tickets on a regular basis.

[24] Ms. Barrett went to a number of different stores to redeem the winning tickets because she used some of the money she won to buy more tickets and she believed that purchasing tickets at different locations increased her chances of winning.

Positions of the Parties

[25] There is no dispute that the Crown has proven beyond a reasonable doubt that Mr. Smith breached a condition of a recognizance prohibiting him from contacting or communicating with Ms. Barrett.

[26] The dispute in this trial centres on the identity of the people who robbed the convenience stores on February 2 and 6, 2014.

[27] Mr. Shumka, on behalf of the Crown, asks the court to rely on the doctrine of recent possession to draw the inference from Mr. Smith’s unexplained recent possession of the stolen lottery tickets that he was one of the robbers in both the February 2nd and February 6th robberies.

[28] He relies on the following evidence:

• Ms. Barrett testified that Mr. Smith gave her a large number of unscratched lottery tickets that she then scratched and sorted into losing and winning tickets.
• Ms. Barrett is seen redeeming winning stolen tickets 14 hours after the February 2 robbery, and 11 hours after the February 6 robbery. On both occasions, Ms. Barrett is in the company of Mr. Smith.
• Mr. Smith’s slender build is similar to the build of the robbers seen in the security video and described by Mr. Ganesh. He also has dark skin as described by Mr. Yao and Mr. Ganesh.
• Mr. Smith lied to Ms. Barrett about how he obtained the lottery tickets, telling her that he had purchased them with gift cards he had bought with his Petro-Points. This, according to Mr. Shumka, is some evidence of consciousness of guilt.
• Ms. Barrett received the stolen tickets in an unscratched state. It defies logic, in Mr. Shumka’s submission, to sell stolen unscratched lottery tickets because losing tickets have no value and because of the possibility that the seller may be selling a ticket worth one million dollars.

[29] Mr. Pearce, on behalf of Mr. Smith, submits that in all of the circumstances of this case, the court cannot safely rely on an inference from Mr. Smith’s unexplained possession of the lottery tickets to conclude that he was one of the robbers.

[30] The only evidence that Mr. Smith was in possession of the lottery tickets was Ms. Barrett’s, and Mr. Pearce submits that her evidence is suspect for the following reasons. Ms. Barrett was arrested with Mr. Smith. She testified that while she was in the police station, one of the police officers told her that Mr. Smith had confessed to the robberies, and that she could home if she gave a statement indicating that Mr. Smith gave her the lottery tickets. The officer also said that if she went home, it would be unnecessary for them to call the Children’s Aid Society about her daughter. Finally, Ms. Barrett was warned by the officers before she gave her video-taped statement, that if she gave evidence that was inconsistent with what she said in the statement, she could face other charges.

[31] In addition, Mr. Pearce submits that there is doubt that the perpetrators of the two robberies are the same people. The only specific identifying characteristics of the robbers given by Mr. Yao and Mr. Ganesh were the accents of the robbers. Mr. Yao testified that the two robbers had Jamaican accents. Mr. Ganesh testified that they had French African accents. The robberies happened in different ends of the city. The Daisy Mart is located in the north-east end of the city and Hadfield Variety is in the south-east end of the city. Different weapons were used in the robberies. Mr. Yao testified that he was held up with a gun. Mr. Ganesh testified that one robber was armed with a sickle and the other with a hockey stick and gun.

Analysis

[32] As in all criminal trials, the Crown bears the onus of proving Mr. Smith’s guilt beyond a reasonable doubt. Mr. Smith is presumed innocent, and is not required to prove anything in this case.

[33] The applicable law on the doctrine of recent possession is not in dispute. The Supreme Court of Canada has held that, upon proof of the unexplained possession of recently stolen property, a trial judge may, but not must, draw an inference that the possessor stole the articles: R. v. Kowlyk, [1988] 2 S.C.R. 59 at para. 7. The strength of the inference will depend on all of the surrounding circumstances, but it is clear that proof of the unexplained possession of recently stolen property, without more, can give rise to the inference.

[34] I find that Mr. Smith was in possession of the recently stolen lottery tickets. I accept Ms. Barrett’s evidence that Mr. Smith gave them to her. In my view, she gave her evidence in a straightforward and credible manner. She did not appear to have any bias against Mr. Smith or the Crown. She told a consistent and logical narrative, and that narrative was not shaken in cross-examination.

[35] I am not, however, prepared to infer from Mr. Smith’s unexplained recent possession of the tickets that he was one of the robbers. In all of the circumstances of this case, to do so would be unsafe in light of the following:

1. Lottery tickets are easily transferred, unlike a stolen piece of art or jewellery that may take time to transfer to another.
2. Ms. Barrett testified that she was a heavy gambler and regularly (even everyday) played the lottery. Unscratched lottery tickets are of greater value to her than scratched ones.
3. The fact that Mr. Smith lied to Ms. Barrett about the origins of the tickets is as consistent with his knowledge of the stolen nature of the tickets as it is with him having stolen the tickets. It does not assist me in determining his guilt.
4. The fact that Mr. Smith has dark skin and a slender build and thus matches the general description of the robbers given by Mr. Ganesh and the depiction of the robbers on the security video is of negligible probative value.
5. Nothing connecting Mr. Smith to the robberies was revealed during the two-week period he was under surveillance by the police.
6. Nothing, other than eight stolen lottery tickets, connecting Mr. Smith to the robberies was located during the execution of the search warrants. No weapons, no clothing worn by the robbers, no masks, no backpacks carried by the robbers, no diaper bag or wallet stolen from Mr. Yao, no long distance telephone cards, and no other property stolen in the robberies were recovered.

[36] It would be unsafe to ground a conviction in this case on the basis of Mr. Smith’s possession of easily transferable goods 14 and 11 hours after a robbery. I am not satisfied beyond a reasonable doubt that Mr. Smith is one of the robbers, and I therefore find him not guilty of Counts 1, 2, 3, and 4.

[37] As I already mentioned, Mr. Smith has conceded that the Crown has proven beyond a reasonable doubt that he breached a condition of his recognizance, and I therefore find him guilty of Count 5.

Released: May 18, 2017 Corrick J.