Court File and Parties

COURT FILE NO.: CR-15-40000599-0000 DATE: 20170621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANTHONY BIRCH and LANCE RICHARDSON Accused

COUNSEL: C. Valarezo, for the Crown Y. Rahamim, for the A. Birch B. Irvine, for L. Richardson

HEARD: March 6-10, 13-17 & May 15, 2017

REASONS FOR JUDGMENT

A.J. O’Marra J.

[1] Anthony Birch and Lance Richardson are charged with two counts of robbery contrary to s. 343, two counts of use imitation of firearm in the commission of an indictable offence contrary to s. 85(2)(a), two counts of assault causing bodily harm contrary to s. 267(b), two counts of threatening to cause death contrary to s. 264.1(1)(a) of the Criminal Code involving the robbery of Floryna Balagbag and Andre Pal on August 21, 2014. Further, Mr. Birch is charged with wearing a disguise during the commission of the offence contrary to s. 351(2) of the Criminal Code.

[2] It is alleged that Mr. Birch and Mr. Richardson robbed, assaulted and threatened to cause the death of Ms. Balagbag and Mr. Pal as they were having a late night picnic in the Baycrest Park the evening of August 21, 2014. Ms. Balagbag and Mr. Pal had met that evening at the Yorkdale subway station and walked into the Baycrest Park where they found a bench near the middle of the park off the pathway and south of the baseball diamond. As they had their picnic, sitting on the bench, they observed two people approach them from the direction of the pathway to the Yorkdale mall. One of the males was wearing a black hoodie zipped up over his face with a skeleton mask. The other person was wearing a green hoodie. He had nothing covering his face.

[3] The male in the black zipped up hoodie produced a silver revolver and the male in the green hoodie brandished a large cleaver like knife. They demanded that Ms. Balagbag and Mr. Pal hand over all of their belongings. Mr. Pal gave them his wallet and cell phone. Ms. Balagbag gave them her purse.

[4] Mr. Pal was pistol whipped by the male in the black zipped up hoodie and knocked to the ground. Ms. Balagbag was pulled to the ground. Both of them were repeatedly kicked and punched. The robbers threatened to kill both of them.

[5] After a short period of time the assailants left in the direction of the pathway to the Yorkdale subway station and Mall. Mr. Pal began to search for his cell phone to call police. As he did so, the male in the green hoodie returned and appeared agitated. He knocked Mr. Pal to the ground again and began to kick him. He was followed by the male in the black hoodie, now with a bandanna across his face. Again Ms. Balagbag was assaulted. Both of the assailants said “where’s the shank?” Mr. Pal and Ms. Balagbag believed they were referring to the large cleaver-like knife brandished earlier by the male in the green hoodie who smelled strongly of alcohol. After the further assault they left again in the direction of the pathway to the subway/mall pathway.

[6] Mr. Pal had not been able to find his phone. He found a person nearby as they went toward the park entrance. He used his phone to contact the police to report the robbery.

[7] It is alleged that Mr. Birch was the assailant wearing the black zipped up hoodie with the skeleton mask who pistol whipped Mr. Pal, and Mr. Richardson, the assailant in the green hoodie who brandished the cleaver-like knife.

[8] Mr. Birch was arrested in the park that night where he acknowledged the ownership of a bag which contained a black zipped up hoodie with skeleton mask, an imitation silver revolver and black plastic pistol. Mr. Richardson was arrested after Mr. Pal identified Mr. Richardson in a photo lineup presented by the police approximately two weeks later, September, 3, 2014. Ms. Balagbag was unable to identify anyone in the photo line-up presented to her.

[9] On the trial, both accused testified in their own defence. Mr. Birch testified that he had attended a birthday party for a friend in the neighbourhood where the park is located and brought him a gift wrapped replica revolver handgun. Mr. Richardson was also at the party where he was acting as a DJ. Birch said at the end of the party he could not find his bag, in which he had carried the gift. A friend told him it had been taken by two people and pointed in the direction of the park. Mr. Birch claimed he had gone to the park in search of his bag when he encountered police who had just found his bag. He had nothing to do with the robbery.

[10] Mr. Richardson testified that he was not at the party as Mr. Birch testified but at his apartment as required under a curfew condition of a probation order.

[11] The issues on this trial are identification and the application of the factors as set out in R. v. W. (D.), [1991] 1 SCR 742 in the assessment of the evidence relied on by the defence.

The Evidence

Andre Pal

[12] Andre Pal testified that he met his then girlfriend, now wife, Ms. Floryna Balagbag at the Yorkdale subway station just before 11:00 p.m. August 20, 2014 to have a late night picnic in the Baycrest Park. They found a bench between two trees south of the baseball diamond. It was a warm clear night and while the location where they sat was dark, there was lighting along the pathway to the east of them and bright enough that they could see one another. Two people approached from the direction of the north pathway to the Yorkdale subway station/mall about 20 or 30 minutes later. One of the males wore a black hoodie zipped up over his face with a red or white skull design. He pulled a silver gun out as he came towards him. The other male wore a green hoodie with nothing covering his face. He held a knife which was more cleaver-like. He could clearly make out his face. The male in the black hoodie initially pointed the gun at Floryna’s head then turned it toward him also pointing it at his head and said: “give me everything you got.” Mr. Pal started to take everything out of his pockets, his black wallet and cell phone. He handed them to the male in the black hoodie who took the wallet, but threw away the cell phone. His wallet contained his bank card, a couple of dollars, driver’s license and health card.

[13] The male in the green hoodie placed the cleaver like knife on his left shoulder. The black hoodie male struck him over the head with the gun as he sat on the bench. As Mr. Pal started to get up the male in the black hoodie told him to get to his knees on the grass and he put the gun to his head and asked him where he was from. He wanted to know if he was from the neighbourhood. At one point the male in the black hoodie said to the other male “I might have to kill this nigger”. He told them that he did live in the area and tried to calm them.

[14] As Mr. Pal looked towards Floryna, he was hit again in the head with the gun behind the left ear causing him to drop face down onto the ground. Soon after he was kicked and punched. He could hear Floryna being physically assaulted as well. During the assault Mr. Pal said he heard the male in the black hoodie call the male in the green hoodie several times by the name “Chem”.

[15] Then he heard them running away. It sounded like they were moving in the direction of the pathway back to Yorkdale subway and mall. As he got up he saw Floryna face down or lying on her side on the ground. They began to search for his phone. A few minutes later the guy in the green hoodie returned and said repeatedly, “where’s the shank, where’s the shank.” He punched Mr. Pal and knocked him to the ground again. He began to kick and punch Mr. Pal when the guy in the black hoodie returned and he heard him trying to “corral the green hoodie guy”.

[16] Ms. Balagbag and Mr. Pal said that the male in the green hoodie was intoxicated and they could smell the alcohol.

[17] Before the assailants left one of them picked up Mr. Pal’s bicycle, which had been propped up against the back of the bench and hit him with it. Again, the males left in the direction of the pathway to the Yorkdale station/mall. He and Floryna went in the opposite direction in the park, northeast looking for someone who had a phone to call the police.

[18] Mr. Pal stated that as a result of being hit with the gun he was bleeding from the top of his head, he was bruised in the back of his left ear and had a large bump on his head.

[19] He only saw the male in the black hoodie while sitting down or after having been knocked to the ground. He thought that he was in his early 20’s, perhaps 18 to early mid 20’s, approximately 5’ 10”. He appeared bulkier, stockier or more athletic in appearance to the male in the green hoodie who had a thin build.

[20] He described the male in the green hoodie him as having olive toned skin, perhaps Italian, Greek or East European. He could see his eyebrows which were full and dark. He described the shape of his face as very thin, an oval type face and his nose as quite thin. He had light scruffy facial hair and thin moustache. He had long curly hair, slicked back and tied back. He estimated his height to be similar to his own 6’ 1”, “if not taller”. When he first described the males who had attacked him on his 911 call, he said that they were 5’8” to 5’9”.

[21] The next morning Mr. Pal and his mother went to the park to look for any of his possessions. His mother found the knife/cleaver in its sheath on the grass near where the robbery had taken place. Mr. Pal identified it distinctive cleaver-lie shape as the one held by the male in the green hoodie. Later, Mr. Pal found his wallet in the grass near the bottom of the pathway to the subway station.

[22] On September 3, 2014, he was shown a photo lineup in which he identified Lance Richardson as “the guy in the green hoodie”. Mr. Pal testified that his identification of Lance Richardson as the assailant in the green hoodie was 75%, if not more.

Floryna Balagbag

[23] Ms. Balagbag testified that she met her boyfriend, Andre Pal at the Yorkdale subway station and walked into the Baycrest Park to have a picnic. They arrived at the bench. It was dark however, there was pathway lighting and the baseball field lights were still on.

[24] Two males approached them, one wearing a green hoodie with a black baseball cap, the other a black zipped up hoodie with a skull mask imprinted on the hoodie. The male with the black hoodie held a silver gun and the male with the green hoodie held a knife or shank. They demanded all their possessions and she handed over her purple purse to the male in the green who emptied it out on the ground. The male in the black hoodie pointed the gun at her head, which he touched her forehead with as she and Andre sat on the bench. After his attention went to Andre she was pulled to the ground and punched and kicked repeatedly when she heard a loud smack. From the ground she looked over and saw Andre also on the ground and he appeared to be unconscious. She pulled her arms up over her head to protect herself and eventually played dead.

[25] After being punched and kicked she heard them run off through the grass in the direction of the pathway to the Yorkdale subway station. She heard Andre whisper her name while she was still on the ground. They got up and started looking for Andre’s cell phone. Within a few minutes the guy in green and the one in black came back, who this time had the hoodie down but a blue bandanna covering his face. The guy in green was very aggressive and knocked Andre down. She was knocked down and curled up again when they were kicking and hitting her. She thought they said something about looking for a shank. Again, they stopped and she heard them go toward the pathway leading to the Yorkdale station.

[26] She described her injuries as a golf ball size lump to her forehead, her ear was swollen, her stomach was sore from where she had been kicked a few times and her wrist was sore to move for a long time.

[27] When the male in the black hoodie returned with the bandanna over his face she could see part of his face which was brown in colour, similar to that of Andre. Further, she said she could see his hands and they were the same colour. In cross-examination, it was noted that she stated at the preliminary inquiry she had not noticed their hands and “I don’t think they had gloves”.

[28] Ms. Balagbag also described the male in black as having curly hair a few inches on his head, which was uncovered the second time he returned to assault them.

[29] With respect to the male in the green hoodie she described him as having olive toned skin and very thin skinny features. He had long skinny nose, facial hair, like under the chin. His lips were skinny with a somewhat fuller bottom lip and his eyes were light in colour, a grey green. His build was slender and he was taller than the male in the black hoodie. He slurred his words and had a heavy scent of alcohol from his mouth.

Constables Craig Brister and Katelyn Cowie

[30] Police Constable Craig Brister with partner Constable Katelyn Cowie were on uniform patrol August 21, 2014 when they received a radio call at 12:02 a.m. with respect to a robbery in the Baycrest Park. The information received was there were two males involved, 21 to 25 years Arabic/European, one wearing a black sweatshirt zipped to the face and black pants who had a silver gun. The other suspect had a green hoodie on and black pants. The victims were in the park on a bench just south of the baseball diamond.

[31] Constable Brister drove the police vehicle through the entrance at the south end of the park and proceeded along the walkway slowly toward the north end where the baseball diamond was located. The park was dark although there was walkway lighting. In addition, they had their normal headlights, alley lights and take down lights activated on their cruiser.

[32] As they proceeded slowly up the walkway, Constable Brister observed a black male walking southwest along the north side of the walkway approximately 10 to 20 yards away. Constable Cowie observed that the male did not look at them as they drove slowly up the walkway. Constable Brister continued to watch him through the car window. He noted that the male did not match the description of the suspect. He was wearing a black shirt with a white logo. He watched him walk towards the Yorkdale Mall ramp along the tree line about 10 yards away. As he continued to watch him he noted that the male’s pace increased to almost running toward the ramp. In his rear view mirror he observed the male make a casting, lobbing motion with his right arm, like he was throwing something toward the tree line. Constable Brister said it was the motion of his arm that caught his attention.

[33] Constable Cowie did not see the motion as she was scanning the area for suspects. Constable Brister told her what he saw and then turned the vehicle around to drive toward the ramp where the male was heading. They lost sight of him briefly when the cruiser was turned around to follow him. When they arrived at the ramp they saw the male at the bottom of the ramp moving to the sidewalk and heading westerly away from the park.

[34] Constable Brister drove halfway down the ramp and stopped, as the male turned around and came back toward them. Before either he or his partner exited the vehicle, the male, later identified as Anthony Birch asked them why they were following him. His hands in his pockets which caused the officers concern because they were investigating a robbery call which involved a gun and knife. Constable Cowie told him to take his hands out of his pockets. He lifted his shirt and said “go ahead search me.”

[35] Constable Brister described him as being calm and cooperative. He told the male they were investigating a robbery which had occurred in the park and that one of the suspects had been described as wearing all black. Birch produced his driver’s license. After his identity was confirmed and that there were no wants or warrants, he was told he was free to go. Instead of continuing back down the ramp he went back up the ramp toward the park again. Both Constable Brister and Cowie thought it was unusual he would return into the park after they had just seen him leave it. Cowie asked him why he was going into the park. They testified that he told them he was going back to find money he had lost.

[36] The officers returned to their cruiser, continued down the ramp to turn around and return to the park. On arriving back into the park, Brister and Cowie saw Mr. Birch speaking with two officers at a police canine unit vehicle just past the top of the ramp.

Sergeants Michael Quinn and Scott Foulds

[37] Sgt. Michael Quinn was working with Sgt. Scott Foulds, both canine officers on August 21-22, 2014. Just after midnight at 12:08 a.m. they received a radio call about a robbery that had just occurred in the Baycrest Park. They were on scene in their canine unit SUV with search dog Oden at 12:14 a.m. They heard a police radio call as they drove slowly through the park that other officers were investigating a suspect in the southwest corner of the park on the Yorkdale mall pathway.

[38] As they drove slowly in that direction, Sgt. Foulds, in the passenger seat, told Sgt. Quinn to stop the vehicle because he could see a bag in the bushes. Sgt. Quinn stopped and Sgt. Foulds left the vehicle and went toward the location where he observed the bag. As Sgt. Quinn exited the driver’s side a male came up from the ramp, later identified as Birch. He came toward the officer he and approached him at the front of the unit.

[39] Sgt. Quinn observed that the male was sweating profusely. He was agitated and stated, “you know man I’m really kind of annoyed”. The officer asked him why, and he said, “These cops just stopped me and searched me for no reason”. Sgt. Quinn told him that they were investigating a robbery in the park. The male stated that he knew that, and they searched him and his phone. Sgt. Quinn said he tried to calm him down and asked his first name, which he provided. He asked him if he was coming from work to which he said, “Yes”. He asked what he did for work and he told the officer he worked at Mr. Lube.

[40] Sgt. Foulds approached them at the front of the canine unit holding bag he picked up near the tree line. Birch looked at past Sgt. Quinn at Foulds and said “that bag is mine”. Quinn asked if there was any ID in the bag and Birch answered there were some pay stubs. Sgt. Quinn testified that he was confused with respect to his claim of the bag, and asked him “why is your bag here and you’re with police officers over there”. He answered “because the police were searching me”. Sgt. Quinn said his response did not make sense to him, so he asked again why his bag was over here where they were, but he had been over there. He received the same response, “the officers had just searched me”. Quinn said he was not answering his question and again Mr. Birch stated the officers searched him and they could search him too.

[41] As Foulds walked toward the truck the bag felt heavy to him and asked – “what’s in it?” Birch said it had his clothes. Foulds put the bag on hood of the car at which point Birch reached over and said “I’ll open it for you.” He reached in the bag and pulled out a black hoodie. It was a black hoodie with a skeleton mask.

[42] Birch tried to reach into the bag again. Once the black hoodie was out of the bag the officer could see the handle of a pistol. Foulds called out there was a gun. Quinn took ahold of Mr. Birch’s right arm preventing him from reaching into the bag and Foulds took ahold of his left arm. Constable Brister who had come up to the area with Cowie took Birch’s left arm to relieve Foulds and cuffed him. He moved him to the rear corner panel of the canine unit. Foulds then said he found a second firearm. It was a silver revolver with a bandanna wrapped around the handle. The first firearm seen appeared to be a black semi-automatic pistol and the second firearm, a silver .38 caliber revolver.

[43] When Birch was moved to the rear of the truck Foulds said the revolver was a .38. Constable Brister heard Birch to say “it’s just a BB gun”.

[44] Constable Brister took custody of Birch and walked him to his cruiser where he was placed into the rear seat. The in car video recorder had been activated. Birch was advised he was under arrest for possessions of weapons dangerous. Twice on the in car camera video he stated that the gun located in his bag was a BB gun. Later, when he was being asked his particulars such as his address, he stated,

…I wasn’t responsible for that robbery in the area and you guys know I wasn’t responsible for that robbery in that area but you guys still want to charge me because you see a BB gun in my bag that didn’t even match the description that the lady described to you. That’s bullshit”.

[45] The officers who dealt with Mr. Birch that night, Brister, Cowie, Quinn and Foulds made no mention to him of the gender of the victim or victims. He had just been told that there had been a robbery in the park. Further, on the booking room video he is heard to mutter, “I did not have to disclose I dropped the knapsack”. Contrary to his evidence that he was searching for his backpack allegedly stolen by someone at the party, and which just happened to be in the location where Brister had seen him make a tossing motion.

[46] Foulds testified that he took the search dog, Oden, to see if he could pick up any scents. The dog led him north from where the bag was found to a bush where Mr. Pal’s bike had been discarded. The dog then proceeded easterly from the bike toward the park bench where the officer observed a number of articles, purse, change purse, strewn near a park bench, the obvious location of the robbery.

Anthony Birch

[47] Anthony Birch 21 in August 2014 testified that he had learned of a birthday party for a former football coach called Mario at his home of 20 or 21 Neptune Crescent in the Lawrence Park area. The address is several blocks to the east of Baycrest Park, about a 20 minute walk.

i) The Bag and the Silver Revolver

[48] He finished work at about 8:30 p.m. at Mr. Lube and Michael, a co-worker drove him to the party. He was wearing his work clothes which consisted of a Mr. Lube t-shirt, sweatshirt, black pants and work boots. He had his backpack with him, which contained a birthday present he had purchased that day for about $200, a BB gun that looked like a revolver for his friend, a hunter. It was in a box he had gift wrapped with Christmas paper at another store nearby. He believed the BB gun was black, just as depicted on the cover of the box.

[49] He arrived at the party and changed out of his work clothes, under which he wore on a basketball jersey and basketball shorts. He changed from his work boots to his running shoes. He wore a black pashmina head covering and baseball hat. He gave the gift to Mario although he could not recall if it was opened or where it was put. He placed his bag which contained his work clothes and some articles from his work place on the floor where other bags were located.

ii) Photographs and the Party

[50] To show he was at 21 Neptune Crescent that night he produced photographs he said had been texted to him by someone in the days following the party. He could not remember who it had been. In the photographs of a group of people near and on a staircase he is wearing a basketball jersey, shorts, pashmina and ball cap. He said the photographs were taken at the party that night.

[51] Mr. Birch testified that he knew Lance Richardson for some 4 to 5 years, not as a close friend, but more an acquaintance he met at parties where Lance would DJ. He said Mr. Richardson was at Mario’s that night playing the music. There are a number of individuals in the photograph with Mr. Birch, one of whom is Lance Richardson.

[52] Mr. Richardson said that the photographs used by Mr. Birch to show he was at the party that night were in fact photographs taken weeks earlier, August 9, 2014 at his own birthday party in his apartment. He described the interior of his apartment and other items in the photograph as evidence of where the photographs were taken, contrary to Mr. Birch’s assertion they were taken at a residence on Neptune Crescent, August 21, 2014.

iii) The Missing Bag

[53] Mr. Birch said he drank a great deal at the party. At some point during the evening a friend, Cayla said she was hungry and began to bug him for his VISA credit card. He went to look for his bag where he kept it and found that the bag was gone. He asked a number of people if they had seen his bag. A person named Kevin told him he saw people leave with his bag and they went “this way” and he pointed in the direction of the park. He set out to look for his bag.

[54] Mr. Birch testified that he had extensive nerve damage as a result of an accident that he was involved in 2013 requiring him to use a cane. When he walked he would “wobble”, as he described it. Notwithstanding, he left the party without his cane and walked to the park to look for “people” who had taken his bag. He searched none of the streets in between the address of 20 Neptune Crescent, but went directly to the park.

iv) Searching for the Bag

[55] As he walked through the park on the pathway he said he could see a lot of property scattered about and an article that looked like a purse, but did not pick it up and stayed on the path. He continued to walk through the park toward the pathway toward the Yorkdale mall.

[56] He saw that a police car was following him down the pathway on the ramp to Yorkdale. He turned and went to where they were stopped and asked why they were following him. They searched him and took apart his cell phone. He said he was very angry at having been stopped and when he was let go he just started to walk away. He did not recall which direction he went because he was angry. The police asked why he was going into the park, but did not respond because he was very angry. He denied saying he was going back to look for lost money.

[57] He disputed Constable Brister evidence that he picked up his pace and almost ran or jogged to the ramp to Yorkdale. His injury and inability to walk properly would have prevented it. Further, he did not have his cane with him and he wobbled more so. With respect to the tossing motion seen by Constable Brister perhaps he saw his right hand jerk, which sometimes happened due to the nerve damage. He had not thrown anything away.

[58] When he returned to the park he encountered Sgt. Quinn who he told that he was “very pissed off” because he had been searched by the other officers on the ramp. He did not remember if he told the officer that he had been coming from work, but did recall being asked as to where he worked.

v) Claiming the Bag and Silver Revolver

[59] When he saw Foulds carrying the bag he did say that the bag was his however, he disputed both Quinn and Foulds’ evidence he reached over and pulled out the black hoodie. He never touched the bag. He said he was some 25 feet away at the time Foulds had the bag and said he found a gun. He said one of the officers stiff armed him and told him to step back, it was a safety protocol.

[60] The officer pulled out the silver handgun and said he had found a .38. He stated “that’s my BB gun”. He claims never to have seen the black zipped up sweatshirt with the skull pattern on the face area. Other articles in the bag, such as plastic zip ties, and blue rubber gloves were from work.

Lance Richardson

[61] Lance Richardson testified that he was not involved in the robbery at Baycrest Park. He was at home complying with a curfew condition required under a probation order.

[62] He returned home that evening from work and played video games with a sometimes co-roommate, Layton Clarke and another person he called Michaud. He testified that he received a text from his boss at 9:52 p.m. about the time he was to report to work the next day. His phone records indicate that at 1:01 a.m. he responded to his boss’ texts.

i) Totti

[63] The next morning at about the time he arrived at work on Friday, August 22 he received a call from someone he knew only as “Totti” over a communication app called “Voxer” in which he said Anthony Birch had been arrested. Totti said “I fucked up, I got him caught”. Richardson asked him what happened, but said he did not receive an answer.

[64] At about 1:30 to 2:00 pm he left a message for Birch to “give me a call so I know you’re alright”. Later, he received another message from Totti in which he said again he “fucked up”. When Richardson asked him what happened he replied that he dropped the knife in the park and he got Chemistry caught, a reference to Birch.

[65] Richardson said that he and Birch were close friends that they had known each other for four or five years having met at parties where he was a DJ and Birch had provided security. He had only met the person he called Totti at his birthday party on August 9, 2014 when he arrived with Birch. “Chemistry” was Birch’s nickname.

[66] Next, on the way home while on the bus he said he received a call from Birch, who told him he just got out on bail. Totti “fucked up, he got him booked and he’s looking at some serious time.”

[67] The next day he went to Birch’s place where Birch told him he was looking at some serious time. Birch told him that if the police called him, he wanted Richardson to tell them that he was with Birch at a party that night.

[68] Richardson testified that he did not ask Birch what happened that got him in trouble or ask him why he wanted him to provide an alibi for him. Surprisingly, he said being asked to lie to the police did not raise any alarms. He said he was focused on his own situation and that if called by police then it would raise an alarm.

[69] He described Totti as being about 5’8”, and having a darker complexion. He pointed him out in a photograph taken at his birthday party. He also recalled that Totti had a star or Star of David tattoo on his chest. The individual he pointed out in the photograph does not have a long thin face or nose.

ii) Voxer Messages

[70] Det. Constable Harrington, the officer in charge of the investigation received information that led her to call Mr. Richardson. At her request, he attended to the police station and played the Voxer messages he claimed he received from Totti saying that he had fucked up, got Birch in trouble and dropped the knife in the park. Some of it was in patois, but Mr. Richardson said he words “fucked up” and “knife” could clearly be heard.

[71] Det. Constable Harrington however, indicated that the messages played at that time contained no useful information that would be of assistance to their investigation. Mr. Richardson explained that the messages were no longer available because after Mr. Richardson’s property including his cell phone was returned to him the cell phone was kept by his then lawyer, Mr. McCool.

[72] Mr. Richardson acknowledged he was mistaken when he said he had spoken with Mr. Birch on the day of his bail release. However, he acknowledged that on Saturday, August 22, 2014 he had an eight minute telephone call with Anthony Birch as shown in his telephone records. He claimed the only conversation during those eight minutes was Birch tell him he had a situation he had to get out of and he wanted Richardson to act as an alibi to tell police if they spoke with him that they were at a party together.

[73] Mr. Richardson’s lawyer introduced a photograph through him taken at an earlier arrest, February 2014, which showed Mr. Richardson wearing a green hoodie sweatshirt with a large white Adidas emblem on the chest area. It had not been shown to Mr. Pal or Ms. Balagbag.

Megan Penny

[74] The defence called Megan Penny a friend of Lance Richardson who testified she had attended the birthday party for Mr. Richardson on August 9, 2014. In the photograph, Exhibit No. 3 she pointed to the person who was introduced to her that night as Totti. She had not met him before and received had some Instagram messages from him for a couple of weeks afterwards. She said that the person known as Totti had used the Instagram handle Trillmaleh Totti. She discontinued further communications because she did not like some things he said. She has had no contact with him since.

[75] Ms. Penny also identified Anthony Birch in the photograph as a person she heard referred to as Chemistry, sometimes Chem.

Credibility Assessment

i) Anthony Birch

[76] There are a number of aspects to Mr. Birch’s evidence, which lead me to reject it as lacking credibility.

• His claim that the bag he had taken to the party was stolen and that he went to look for it in the park. He said that someone at Mario’s house, Kevin, told him some people took it and pointed in the direction of the park. The park is several blocks away, yet he left without obtaining any description of the persons said to have stolen his bag or looked anyplace enroute to the park.
• He says that he had difficulty walking, he wobbled due to nerve damage, yet he claims to have left the party without a cane. Constable Brister and Constable Cowie saw no indication of him wobbling or walking with difficulty. He had no difficulty walking or an observable wobble on the security video tape at 32 Division either walking from the police cruiser through the sally port or into the booking hall. There is no observable difficulty with him being able to walk. He does not wobble.
• As he walked through the park he stated that he remained on the path, yet claimed to have seen items strewn about more than 50 yards away, the shortest distance between the path and the area around the bench where the robbery occurred based on the scale of the maps entered as exhibits. (See Exhibit 16(b)). He claims to have seen what looked like a “purse”. He did not go over to look to see whether his bag was there. It does not ring true that he would have seen items strewn about including a purse and would not have deviated from the path to look to see if the “stolen” bag was there.
• Mr. Birch’s claim that he did not make a casting or lobbing motion with his arm, but that Constable Brister may have mistaken his arm injury because of nerve damage was a vain attempt to explain away the amazing coincidence that in the location where Constable Brister saw the arm motion Sgt. Foulds found the bag that Mr. Birch said he went searching for in the park at night. It defies credulity, someone stole the bag from 20 Neptune Crescent and travelled several blocks into the north end of the park and robbed Mr. Pal and Ms. Balagbag near the middle of the park, then discarded it with a silver revolver in it at the same location Mr. Birch had been seen making a lobbying motion.
• He testified that he bought a BB gun for Mario from a store across the road from his workplace, although he could not remember its name. He said the box it was in depicted a black gun inside. He had it gift wrapped with Christmas paper in the store next door, the name of which he could not remember. He claims to have bought it that day to take to the party that night. He claimed never to have seen the gun in the box. He believed it was a black BB gun because that was what was shown on the box. He testified that on being taken to the cruiser he caught a glimpse of a silver revolver held by the officer from 25 feet away and said “that’s my BB gun”. How would he know a silver revolver found in the bag was a BB gun? There is no logical reason for him to have claimed that the BB gun he had taken to the party to give to Mario, believing it was black was the silver revolver found by Sgt. Foulds. Moreover, Foulds said he found a gun, a .38. When Birch was charged he was told that they found what they thought was a restricted weapon. If someone had stolen the bag how would he know it was not a real 38 in the bag. His response “there is no firearm you can confirm it’s a BB gun right now” was because he knew it was an imitation silver revolver BB gun he had put in the bag.
• Mr. Birch claimed that he was searching for his bag and had not found it until it was picked up by Foulds and he said it was his. However, in the booking room videotape he states, “I did not have to disclose to you, when I seen you guys I got scared and I dropped my knapsack”. In the booking hall he admits that he dropped the bag in the park, yet he testified at trial the bag had been stolen and he had been in the park looking for it.
• On the in-car videotape twice he refers to the person who was robbed as “that lady”. None of the officers, whose evidence I accept, told Mr. Birch the gender of the victim or victims. He would only have known one of the victims was a woman having participated in the robbery.
• I accept the officers’ evidence that Mr. Birch tried to pull personal items out of the bag to show that it was his and preempt their examination of the bag.
• I find his failing memory as one of convenience. He did not remember telling Quinn that he had been coming from work or remembered he said on the in car camera he finished work at 4:00 p.m. Further, he did not remember saying on the booking video he got scared when he saw the police in the park and dropped the bag, but he remembered and agreed with everything else he said before that as being true.
• He claimed his over consumption of alcohol at the party affected his ability to remember, yet none of the officers who dealt with him noted or remembered smelling alcohol coming from him or had any concerns about his ability to understand what was happening by virtue of alcohol consumption.
• He was evasive as to where the photographs came from he said were taken the night of the incident at a party on Neptune Crescent, whereas Lance Richardson described the background to the photographs as being the interior to the apartment he rented at the time and the people at his birthday party several weeks prior, which I accept.
• With respect to the photographs, Mr. Birch was wearing basketball shorts and jersey with pashmina and a hat over his head, yet in the park when he is arrested he was wearing black pants and a black t-shirt with pashmina on his head, but no hat. He indicated he changed at some point in the party from his basketball jersey and shorts because he was sweaty, yet he is wearing heavier darker clothing at the time of his arrest. Based on his evidence, he went through three changes of clothes, work clothes, basketball jersey and shorts, and the clothes he was wearing when arrested.

ii) Lance Richardson

[77] With respect to Mr. Richardson, I do not accept his evidence he was messaged by a person named Totti, a person he had no connection with beyond meeting him supposedly at a party, who gratuitously told him, he had “fucked up”, dropped a knife in the park and got Birch in serious trouble. There is no rational or logical reason for someone named Totti to have contacted Richardson and declare he dropped a knife in the park when he got Birch in trouble and Richardson needed to speak to Birch.

[78] The conversations Richardson said he had with Birch go beyond credulity. If Birch said he was in trouble and that he wanted Richardson to give him an alibi, surely, Richardson would have asked why, or to told him outright, no way, because it would have placed him in contravention of his probation conditions.

[79] In my assessment, Mr. Richardson’s evidence was concocted and contrived to put Birch and a person named Totti together as the robbers. He identified Birch as having the nickname, Chemistry or Chem, a name Mr. Pal heard used by one of the assailants, and that Birch’s co-assailant was Totti, whose only resemblance to one of the two assailants was the initial 911 call description of the suspects as 5’8” to 5’9” in height. The person in the photograph Richardson claimed was Totti bears none of the facial features described by the victims of the male in the green hoodie – thin olive toned face, skinny nose.

[80] The telephone records indicate that between 9:52 p.m. and 1:01 a.m. there is no other telephone activity on Mr. Richardson’s cell phone, a gap in time during which Mr. Richardson had the opportunity with Mr. Birch when the robbery occurred. It was only in cross-examination by the Crown with respect to the gap in time evidenced by the telephone records that he said he fell asleep playing video games as his explanation for his texting at 1:01 a.m. in response to the SMS message made earlier from his boss at 9:52 p.m. about work the next day. In my assessment he was making it up as he was being confronted.

[81] I do not accept the evidence of either Mr. Birch or Mr. Richardson, and it does not raise a reasonable doubt. Accordingly, I consider the evidence which I do accept as to whether the accused have been proven guilty of the offences charged.

Identification Evidence

[82] In this case, the Crown relies on direct eye witness evidence of Mr. Pal and Ms. Balagbag and circumstantial evidence to prove the identity of the assailants as Anthony Birch and Lance Richardson. There was no challenge to their credibility, rather it is the reliability of their identification evidence which must be assessed on the issue of identification.

[83] I recognize that both of the identification witnesses have frailties and weaknesses as to their observations and ability to observe that affects the weight given to their evidence. In Regina v. Afield (1983), 1983 ABCA 44, 42 A.R. 294, the Alberta Court of Appeal in distinguishing between the credibility of eyewitnesses and a determination of the reliability of their evidence based on the circumstances surrounding the identification stated:

The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting sure with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. They are convinced they are convincing.

[84] Counsel for Mr. Birch argued that there are a number of identifying features spoken of by the victims that exclude Mr. Birch or should raise a reasonable doubt.

1. There is an assertion by Ms. Balagbag that the second time the male in black hoodie appeared he had a bandanna on, but she could see his hair, which she described as curly and puffy. Mr. Birch had little hair, as can be seen in Exhibit No. 20 his arrest photograph.
2. Ms. Floryna Balagbag indicated that she could see the colour of his hands, brown like Andre, however earlier at a preliminary inquiry she said she did not notice anything about his hands and could not tell if he was wearing anything on his hands. In cross-examination she responded that she thought the questions were being asked as to whether there were any tattoos, rings or other detail about his hands. She remembered he did not have gloves and when asked as to the colour of his hands she indicated brown at trial.
3. There is a suggestion at the preliminary inquiry by Mr. Pal that the guy in black was taller than the guy in green. He said that was because he was confused by the questions, asked by Mr. Richardson’s counsel at the time. He realized his mistake when he read the transcript prior to the trial date and brought it to the attention of the Crown and police. He acknowledged candidly that he could not say with perfect clarity that seeing them at the preliminary hearing did not affect his memory although it was the reading of the transcript where he discovered his mistake.
4. Mr. Pal indicated that his observation of the male in the black hoodie’s eyes were Caucasian or olive toned, not like the eyes of Mr. Birch in his arrest photograph.
5. Mr. Pal indicated that the male in black spoke with a drawl, although with no accent whereas counsel submits that when Mr. Birch testified he had no drawl to his speech.

[85] Both victims indicated that the lighting was adequate to make observations. There was artificial lighting from the pathway and Floryna testified that the baseball diamond lights were on to the north of their location.

[86] Both encounters with the assailants took place over a number of minutes.

[87] I bear in mind that the initial observations made by the victims were made from a sitting position on the bench and then afterwards on the ground, from a protective position as they were being kicked and punched. The initial information with respect to height as given by Andre Pal and as broadcast by police dispatch: 5’8”, 5’9” was conveyed from that perspective.

[88] With respect to height, Mr. Birch is 5’71/2”. Mr. Pal indicated that the male in black was approximately 5’10” of a stockier build than the slender male in green sweatshirt. Floryna indicated that from her sitting position he was 4 or 5 inches taller than her at 5’5”.

[89] With respect to the eyes of the male in black, Floryna indicated that the person who dealt with her most, had round dark eyes similar to those of Mr. Birch in his mug shot.

[90] Both Mr. Pal and Ms. Balagbag gave similar age ranges for the male in black in the early to mid-20, Floryna late 20’s. Mr. Birch was at the time 21 to 22 years.

[91] Floryna indicated that the second time they came back the guy in black had the hoodie down with a bandanna across his face such that she could see his eyes and hair. There is clearly a discrepancy in her evidence with respect to the appearance of Mr. Birch when she said that the male in black had puffy curly hair. I note as well that Mr. Birch claimed to wear a pashmina all the time which was worn tied to his head with long ends hanging down. He was wearing a pashmina when he was arrested in the park that night. He did have a bandanna in his bag wrapped around the handle of the silver revolver.

[92] Although there are inconsistencies in some aspects of the identifying features of the male in the black hoodie as between Mr. Pal and Ms. Balagbag, however, in terms of height, build and appearance they are generally consistent as compared to Mr. Birch and his clothing in the bag. Where there are inconsistencies I take into account the position of both victims and trauma they were experienced – sitting on the bench and/or being pulled or knocked to the ground where they were repeatedly assaulted while in protective positions.

[93] In addition to the identifying information as to the hoodie with the skeleton mask and the silver revolver identified by the victims and found in his bag, I consider Mr. Birch’s actions in relation to the bag, which also contained a replica black and silver pistol, bandanna and black baseball cap.

[94] I accept as noted earlier he was seen to walk normally in the park, but then to increase his pace by Constable Brister as he passed the cruiser going toward the Yorkdale station mall pathway. Further, I accept the officer’s evidence that he saw a tossing motion by Mr. Birch toward the tree line where he pitched the bag which contained the black hoodie with the skeleton face mask, baseball cap, pistol and silver revolver. It was not an involuntary arm jerk motion as claimed by Mr. Birch. He was neither jerking nor wobbling on any of the video tapes as he entered through the sally port and into the booking hall of 32 Division. There was no indication of any officer who saw him in the park or who dealt with him that night he had any difficulty walking.

[95] I accept as well that when the bag was produced by Sgt. Foulds, Mr. Birch attempted to pre-empt the officer from searching it by reaching into it and pulling out something that he could identify as his – a black sweatshirt. He was prevented from reaching in again to pull anything else out by Sgt. Quinn.

[96] Further, I accept that Sgt. Foulds referred only to finding a gun when he first saw the handle of the pistol and then later found a .38, neither of which was pulled out in Mr. Birch’s presence. Without seeing them Birch was able to claim it was a BB gun. He knew it was a BB gun because he had put a silver revolver in the bag, and not a black BB gun gift purportedly given to Mario.

[97] There are two aspects of Mr. Richardson’s evidence which I accept – he was a close friend of Birch, contrary to Birch’s claim that they were only acquaintances, and that he had a nickname, “Chemistry”, also called “Chem”, a name referenced by one of the assailants during the robbery as heard by Mr. Pal.

[98] I consider as well that in the area where Birch first encountered Constables Brister and Cowie, the pathway to the Yorkdale station/mall, Mr. Pal found his wallet near the hill down to the subway station where the officers saw Birch. In addition, Mr. Pal’s health card and bank card were also found in the same area where he was first seen by Constables Brister and Cowie. The bike used to hit Mr. Pal and then taken from the bench was located in bushes along the same tree line where Birch had been seen by Brister and Cowie.

[99] The bike, the bag, the health card, bank card and wallet were all discarded along the same route travelled by Mr. Birch. I accept that Mr. Birch lied to the officers when he said he was going back into the park to look for lost money – as he declared on the booking tape, he dropped the bag when he saw the police.

[100] I am satisfied based on the identifiers as provided by Mr. Pal and Ms. Balagbag about the male dressed in black with the zipped up skeleton face hoodie, the size and build of the male, who held and used the silver revolver to pistol whip Mr. Pal, together with Mr. Birch’s actions and utterances in the park as observed by the officers and the location of his bag which contained the robber’s black zipped up hoodie and silver revolver, proximate to the where the articles taken from Mr. Pal were discarded that Mr. Birch was the assailant in the black zipped up skeleton mask hoodie.

[101] With respect to the male in the green hoodie whose face was uncovered, both Mr. Pal and Ms. Balagbag had a good opportunity to observe his appearance and features. Floryna Balagbag’s description of the male in the green hoodie’s face was that he was fair, lighter toned than the other guy. He had olive undertones, like a Latin person. With respect to his face it was thin, a long face with a thin nose, thin upper lip and fuller bottom lip. While Ms. Balagbag observed the male in the green hoodie wearing a black baseball cap, Mr. Pal’s observation was that his curly hair was pulled back, slicked back and tied with an elastic band – all features borne by Mr. Richardson. Ms. Balagbag’s evidence was that the male in the green hoodie spent most of his time and attention on Andre.

[102] In Regina v. Williams, [1992] O.J. No. 39 at para. 4, Martin J.A. observed with respect to photo line-up identification evidence:

Identification always has certain inherent frailties. Identification evidence may be strengthened if the identifying witness is able to pick out the person who he claims to have seen on the occasion in question from among a number of other persons similar in size and age and general physical appearance in a lineup.

[103] The photo lineup process in which Mr. Pal identified Mr. Richardson, the first photograph presented to him, was unchallenged. It was conducted properly. The photographs were presented in a sequential order of like appearance persons by an officer unrelated to the investigation. I also take into account that Mr. Pal identified an individual as one of the two assailants who wore the green hoodie without having any prior knowledge that Mr. Richardson was a close friend/associate of Mr. Birch or that there had been communication between them after the robbery August 21, 2014 in which an alibi was discussed.

[104] Counsel for Mr. Richardson argued that it is a major discrepancy the victims did not describe a large white “Adidas” symbol on the green hoodie sweatshirt of the assailant, which should raise a reasonable doubt that Mr. Richardson was that assailant. He has a green hoodie with a large white logo on the front of it.

[105] The photograph of Mr. Richardson in a green sweatshirt with the white Adidas logo was never put to the witnesses to either accept or reject that such a logo was on the sweatshirt of the green hooded assailant. The photograph was taken at an earlier time in reference to an unrelated event. The victims did identified the colour of the green sweatshirt worn by Mr. Richardson in earlier photographs which showed only his head and shoulders. They both accepted that the colour of the sweatshirt was the same as that worn by the taller, robber with the thinner build.

[106] In light of the manner in which the photograph of Mr. Richardson wearing a green hoodie with a large white Adidas logo was entered in evidence without having given the victim/complainants an opportunity to comment on it, I do not considered it to be a contradiction or discrepancy with respect to the reliability of their evidence. Had the photograph been presented to the witnesses fairly it may have assisted their recall, if any, as to whether such a symbol was present or not on the green hoodie sweatshirt.

[107] The defence for Mr. Richardson raises neither a defence of alibi that he was home with Layton and Michaud, failing to provide notice, nor specifically a third party suspect defence, “Totti” perpetrated the offence, but argues that Mr. Richardson’s evidence as to where he was and the purported comments by a person named “Totti” should at a minimum raise a reasonable doubt.

[108] In assessing Mr. Richardson’s evidence, as noted above, I reject his evidence as not being credible, either with respect to being home on the evening of the robbery, or having received calls or Voxer messages from a person purportedly called “Totti” who claimed dropped a knife in the park and gotten Mr. Birch into trouble.

[109] If the person pointed out in the photograph by Mr. Richardson and Ms. Penny is “Totti”, as noted earlier he does not bear any resemblance to the facial characteristics given by the victims of their assailant in the green hoodie sweatshirt, or the photograph of Lance Richardson picked out of the photo lineup by Mr. Pal.

[110] I am satisfied based on the descriptions provided by the victim witnesses and the identification of Mr. Richardson by Mr. Pal in an unchallenged and properly conducted photo lineup process he was the assailant in the green hoodie sweatshirt, and as such I find him guilty of the offences charged.

A.J. O’Marra J.

Released: June 21, 2017