Court File and Parties

Court File No.: CR17-076-0000 Date: 2017-06-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Mr. Michael Martin, for the Crown

- and -

Cory Greavette and Douglas Flett Ms. Jill Gamble, for the Accused Accused

HEARD: June 19 and 20, 2017

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

The Alleged Robbery

[1] In the early morning hours on March 30, 2017, the complainant, Thomas Reiley, 35 years old, was operating a taxi in the City of Owen Sound.

[2] He had his own licence and his own vehicle (a van), however, he had some association with a local company called Bayshore Taxi. That relationship required him to, among other things, pay “stand fees” to the company.

[3] Mr. Reiley testified that he was behind in his stand fees. He had $700.00 in Canadian currency in his van - $600.00 in fifties and $100.00 in twenties. The money was in his wallet which, in turn, was inside his jacket pocket near his left breast area. He also had some coins inside the van, between the two front seats with his clipboard. The coins were stored inside a Rubbermaid container with a red lid on it.

[4] Mr. Reiley testified that he received a call to attend at 1270 1st Avenue West, Owen Sound. He knew that place. He had been there before. He picked up three males. One of the males he knew at the time as the accused, Cory Greavette. The second male he did not know at the time but identified at trial (by reference to a photograph and by looking at the two accused in the prisoners’ dock) as the accused, Douglas Flett (whose middle name is Wayne). The third male was and still is unknown.

[5] They drove to Kelso Beach. Mr. Reiley waited inside the van for about 20-25 minutes. The three males left and then returned. Mr. Greavette sat in the front passenger seat. Mr. Flett sat behind Mr. Greavette. The third male sat behind the driver’s seat.

[6] They then drove back to 1270 1st Avenue West. They pulled into the laneway beside the house and to the rear of the house.

[7] According to Mr. Reiley, as he reached for his clipboard, Mr. Greavette grabbed him and pushed him down towards the floor. Mr. Flett was also pushing him down. There was a big scramble. Mr. Reiley felt a hand reaching for his wallet. Mr. Greavette pulled out a little bat from inside his sleeve. Mr. Greavette uttered some kind of threat along the lines of “if you move, I’ll hit you”, although the exact words are unclear. Mr. Reiley, scared, threw his wallet at Mr. Greavette. Outside the van, Mr. Greavette removed the money and threw the wallet onto the ground. Someone took the Rubbermaid container as well.

[8] Mr. Reiley testified that he then went to the back door and pounded on it, demanding his money back. Mr. Greavette opened the door briefly, said something like “what are you going to do about it” and then shut the door again.

[9] Mr. Reiley telephoned the police. He waited on scene for them to arrive.

The Police Search

[10] Just after 11:00 a.m. on March 30th, several hours later, the police knocked on the front door at 1270 1st Avenue West. They announced their presence and that they had a search warrant.

[11] Within a few seconds of that occurring, officer Ringel observed movement near the window that is off the flat roof at the rear of the house. Someone was then on the roof.

[12] Officer Ringel yelled repeatedly for the person to stand still and show his hands. Ringel’s firearm was drawn as there was no immediate compliance.

[13] The person on the roof was Mr. Greavette.

[14] For his part, Mr. Flett simply opened the front door of the house and was arrested. He was searched at the scene by officer Edmiston. Inside the pockets of his pants were found five fifty dollar bills, six twenty dollar bills, one five dollar bill, and some loose change.

[15] Under warrant, the police searched the house. In the room with the window that Mr. Greavette used to access the roof, officer Matheson found a rental agreement for the property in the name of Mr. Greavette. Some clothing was also found in that room, including a long-sleeve white t-shirt.

[16] Inside a cabinet in the kitchen, Matheson found a red Rubbermaid lid. A photo of that item had been shown to Mr. Reiley during his testimony at trial and was identified as being his or very similar to the one that was inside his van.

[17] In the living room, officer Daniels found a sword inside a sheath and a wooden club-like item with nails sticking out of it.

[18] At the police station, during the booking process, Sergeant Green counted money that was seized from Mr. Greavette: three fifty dollar bills, two twenty dollar bills, and $4.55 in coins.

[19] Sergeant Green also noted the money that had been seized from Mr. Flett: five fifty dollar bills, six twenty dollar bills, one five dollar bill, and some coins.

The Charges

[20] Cory Greavette faces four counts, and Douglas Flett has been charged with two offences, all on a single Indictment:

Her Majesty the Queen presents that Cory Greavette and Douglas Flett, on or about the 30th day of March, 2017 at the City of Owen Sound, Ontario, did steal Canadian currency from Tom Reiley, while armed with an offensive weapon to wit, a wooden dowel, contrary to section 344(1)(b) of the Criminal Code of Canada.

And further, that Cory Greavette and Douglas Flett, on or about the 30th day of March, 2017 at the City of Owen Sound, Ontario, did have in their possession property to wit, Canadian currency of a value not exceeding five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code of Canada.

And further, that Cory Greavette, on or about the 30th day of March, 2017 at the City of Owen Sound, Ontario, did in person knowingly utter a threat to Tom Reiley to cause bodily harm to Tom Reiley, contrary to section 264.1(1)(a) of the Criminal Code of Canada.

And further, that Cory Greavette, on or about the 30th day of March, 2017 at the City of Owen Sound, Ontario, did have in his possession a weapon to wit, a wooden dowel, for the purpose of committing an offence, contrary to section 88 of the Criminal Code of Canada.

[21] The accused were jointly tried.

What Does the Crown have to Prove?

[22] Of course, the verdicts on each of counts 1 and 2 do not need to be the same for both accused, and further, the verdicts across the various counts do not have to be the same either.

[23] For this Court to find the accused guilty of robbery, count 1, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Greavette and/or Mr. Flett stole money from Mr. Reiley; and ii. that Mr. Greavette was armed with an offensive weapon, a wooden dowel or a small wooden bat, at the time of the stealing.

[24] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of robbery.

[25] For this Court to find the accused guilty of possession of property obtained by crime, count 2, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Greavette and/or Mr. Flett possessed money; ii. that the money had been obtained by crime, that is, was stolen; and iii. that the accused knew that the money was stolen (which of course would be the case if the accused participated in the stealing of it).

[26] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused not guilty of possession of property obtained by crime.

[27] For this Court to find Mr. Greavette guilty of uttering a threat, count 3, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Greavette made a threat; ii. that the threat was to cause bodily harm to Mr. Reiley; and iii. that the threat was made knowingly.

[28] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Greavette not guilty of uttering a threat.

[29] Finally, for this Court to find Mr. Greavette guilty of possession of a weapon for a dangerous purpose, count 4, the prosecution must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Greavette possessed a weapon, the club-like item with nails; ii. that Mr. Greavette knew that what he possessed was a weapon; and iii. that Mr. Greavette had the item for the purpose of committing an offence.

[30] In terms of “possession”, the Crown relies on the constructive form – the weapon was found in Mr. Greavette’s residence, and he had knowledge and some measure of control over it.

[31] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Greavette not guilty of possession of a weapon for a dangerous purpose.

The Issues

[32] On counts 1, 2 and 3, the issue is whether the events described actually occurred and, if so, whether the culprits were Mr. Greavette and/or Mr. Flett.

[33] On count 4, the main issue is whether Mr. Greavette possessed the item in question.

[34] The robbery relates to the alleged theft of the money from Mr. Reiley’s wallet and from his Rubbermaid container. The reference to the weapon in count 1 is due to Mr. Reiley’s evidence about Mr. Greavette having a small bat that he had removed from under his shirt sleeve.

[35] The possession of property obtained by crime relates to the alleged stolen money.

[36] The threatening charge relates to the alleged comment from Mr. Greavette during the scramble inside the van.

[37] Finally, count 4 relates to the club-like item with nails in it that was seized by officer Daniels from inside the residence (Exhibit 6). Note that there is no allegation that the said item was used during the alleged robbery; it is not the little bat described by Mr. Reiley.

II. Analysis

[38] This was a very short trial – less than two days, including final submissions by counsel.

[39] For the prosecution, I heard from the alleged victim, Thomas Reiley, and the following police officers from the Owen Sound department: Bill Ringel, Richard Craig Matheson, Peter Daniels, Derrick Edmiston, Christopher Hartley, and Sandra Green.

[40] The Defence called no evidence at trial.

Assessment of the Evidence of Mr. Reiley

[41] I have concerns about the reliability and the credibility of Mr. Reiley.

[42] On reliability, he admitted at trial to having a “horrible” memory (that was his word), although he qualified that to not applying to what he says happened with the accused.

[43] In fact, his memory is so bad that he could not recall at trial that he gave a fairly lengthy audio-video recorded interview about the alleged robbery in a room at the police station. That interview occurred less than three months ago.

[44] At trial, Mr. Reiley had to be shown the audio-video recorded interview in order to remind him that it actually occurred. He explained that he forgot because he was also interviewed at about the same time for a criminal charge that was laid against him, which explanation I find rather bizarre since one has very little to do with the other.

[45] Prior to being shown the video in the Courtroom, Mr. Reiley testified that he was 100% positive that he had never been interviewed at the police station.

[46] On credibility, there were some highly material inconsistencies, in fact direct contradictions, in the evidence of Mr. Reiley.

[47] For example, he at first testified that he did not, that night/morning, know the name of Mr. Flett, “Wayne”. He later, after reviewing the transcript of his police statement, testified that he not only, at the time, knew the first name of Mr. Flett but he actually heard Mr. Greavette refer to Mr. Flett as “Wayne”.

[48] As another example, in direct examination at trial, Mr. Reiley described in some detail seeing the little bat come from underneath Mr. Greavette’s sleeve, yet in cross-examination Mr. Reiley confessed that he did not know where the bat came from and did not even know if Mr. Greavette was wearing a long sleeve top such that he could have concealed the object underneath it.

[49] Also on credibility, Mr. Reiley is an admittedly dishonest person. Shortly after March 30th, he used a credit card fraudulently. Sure, he testified that he had to because he had been robbed, however, our society is full of impoverished and disadvantaged individuals, and most of them remain law-abiding despite their difficult circumstances.

[50] Finally, again relevant to credibility, I found some of the evidence of Mr. Reiley to be lacking in basic common sense. For example, he testified that he was indebted to Bayshore Taxi for stand fees, had cashed some cheques on March 28th to pay the stand fees, but yet he did not pay the fees at the start of his shift on March 29th but rather chose to drive around with $700.00 plus cash in his van. He explained that it was rather busy at the taxi stand that day, however, I find it difficult to accept that any small business operator is ever seemingly too busy to accept delinquent fees.

[51] As another example, when confronted in cross-examination with allegedly inconsistent evidence between his police statement and his trial testimony, Mr. Reiley often criticized the police and expressed his disagreement that he ever said what the transcript shows.

[52] That occurred at least three times during his cross-examination at trial, regarding (i) the alleged threatening words uttered, (ii) whether some money was thrown back at him, and (iii) whether he called dispatch after the robbery.

[53] Although I highly doubt it, as the audio-video interview was not played in the Courtroom, I cannot eliminate the possibility that Mr. Reiley is correct that he never said any of those things to the officer. But what I can eliminate for certain is that Mr. Reiley would ever be able to remember what he said since he could not recall any interview at all having taken place at the police station.

[54] In summary, the evidence of Mr. Reiley is weak. On its own, it cannot be trusted.

The Other Evidence at Trial

[55] Can the other evidence adduced at trial compensate for the significant frailties in the testimony of Mr. Reiley?

[56] Unfortunately for the Crown, in my view, the answer is “no”.

[57] For every bit of potentially corroborative evidence, another question arises, or more than one.

[58] For example, it is true that both accused were found to be in possession of not insignificant sums of money, including fifties and twenties. But where is the rest of the $700.00? And who is the third suspect? And where did he go?

[59] As another example, it is true that a rather ordinary red Rubbermaid lid was found inside the residence. But why would it be stored neatly in a kitchen cabinet by thugs who had just attacked and robbed someone? And where is the actual container itself?

[60] In addition, it is true that Mr. Greavette acted very suspiciously when he tried to flee the house and then hide from officer Ringel after the police attempted entry to execute the search warrant. But why did Mr. Flett simply open up the front door?

[61] On Mr. Reiley’s evidence, they both had equal reason to fear the police for what they had done.

[62] The post-offence conduct evidence is consistent with guilt on the part of Mr. Greavette, however, it is not inconsistent with any other rational conclusion. R. v. Hall, 2010 ONCA 724, at paragraph 137.

[63] We know that Mr. Greavette had prior dealings with the police as the authorities were familiar with him. Perhaps he simply hates the police and had no intention of cooperating with them in any way.

[64] Finally, although it is true that weapons were found inside the residence, where is the key weapon, the little wooden bat described by Mr. Reiley? Where did it go?

[65] In the end, there is some, but not much, to add to the evidence of Mr. Reiley.

III. Conclusion

[66] Over the years, I have witnessed first-hand that, if any barrister could make a silk purse out of a sow’s ear, it would be Michael Martin.

[67] With a competent police investigation behind him, as this one was, and cogent officer testimony down the line from Sergeant Green to Constable Edmiston, which this Court had the benefit of receiving, Mr. Martin marshalled quite an argument in closing as to why this case has been proven to the requisite standard.

[68] In my opinion, it falls short of that, however.

[69] On the totality of the evidence, I am not sure that either accused stole any money from Mr. Reiley (counts 1 and 2), or that Mr. Greavette threatened Mr. Reilly (count 3).

[70] On count 4, I agree with Mr. Martin that the club-like item with nails in it is a weapon and could only be used for a criminal purpose. I am not sure, though, that Mr. Greavette had any knowledge of or control over it. It was not found in the bedroom that he seemed to be occupying. There was another person inside the residence at the time. And there is evidence that the house was frequented by others.

[71] For the above reasons, I find both accused not guilty on all counts.

[72] I wish to thank both counsel for their assistance.

Conlan J.

Released: June 21, 2017