Court File and Parties
CITATION: R. v. Forbes and Vanderwyk, 2017 ONSC 7232
COURT FILE NO.: 16-0003318
READ ORALLY: 20171124
RELEASED: 20171205
CORRIGENDA: 20180426
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NIKEITA JESSEN FORBES and KATRINA ANNEMARIE VANDERWYK
Defendants
COUNSEL:
Melissa Montemurro, for the Crown
Anthony Paas, for Ms. Forbes, Robert Richardson and Taufiq Hashmani, for Ms. Vanderwyk
HEARD: September 25, 26, 27, 28, 29, October 10, 11, 12, 13, 16, 17, 18, 19 and 20, 2017
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE DI LUCA, MADE ON MAY 26, 2017, PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE
REVISED REASONS FOR JUDGMENT
The text of the original reasons have been corrected with the text of the corrigendum
(Released today’s date)
Di luca j.:
[1] Ms. Forbes and Ms. Vanderwyk are charged with a number of serious offences stemming from an armed robbery that occurred on August 1, 2014. On that date, two women entered the Asia Gold jewellery store located at 5010 Steeles Avenue West in the City of Toronto. One was armed with a taser and the other had a loaded handgun. During the course of the robbery, both the taser and the handgun were used. A shot was fired at the owner of the jewellery store, S.S., though thankfully it missed him. The firearm was also pointed at a child’s head. The child, P.S., is the daughter of the store owner.
[2] Despite the extraordinary risk to the lives of the persons inside the store, the robbery was fruitless. Nothing was taken and the robbers eventually fled the scene in the company of a number of men who were waiting outside, presumably keeping watch and attempting to also enter the jewellery store to assist with the robbery. The men involved in the robbery were never arrested.
[3] Ms. Forbes and Ms. Vanderwyk were tried before me, judge alone, over a three week period. On an earlier occasion, I heard a voluntariness voir dire relating to a post-arrest statement given by Ms. Forbes. For oral reasons provided at the time of the voir dire, I ruled that the statement was admissible. A Charter application relating to lost evidence was also argued at the end of the trial. The evidence on the Charter application was heard in a blended fashion along with the evidence on the trial proper.
[4] These reasons address both the substantive charges as well as the Charter argument.
[5] The charges against Ms. Forbes can be briefly stated as follows:
a. Attempt murder of Mr. S.S. by discharging a firearm,
b. Intentionally discharging a firearm at Mr. S.S. while reckless as to his life and safety,
c. Discharge a firearm at Mr. S.S.,
d. Point a firearm at Mr. S.S.,
e. Attempt murder of Ms. P.S.,
f. Point a firearm at Ms. P.S.,
g. Robbery with a firearm,
h. Point firearm at Mr. Sujeethan Pararasasinkam,
i. Possession of a firearm for the purpose of committing an offence,
j. Unlawful confinement of Mr. S.S.,
k. Unlawful confinement of Ms. P.S.,
l. Unlawful confinement of Mr. Sujeethan Pararasasinkam,
m. Possess a firearm while prohibited, and,
n. Possess a firearm without an authorization.
[6] The charges against Ms. Vanderwyk can be briefly stated as follows:
a. Attempt murder of Ms. P.S.,
b. Robbery with a firearm,
c. Possession of a taser for the purpose of committing an offence,
d. Assault with a weapon, namely a taser, against Mr. S.S.,
e. Assault with a weapon, namely a taser, against Mr. Sujeethan Pararasasinkam,
f. Unlawful confinement of Mr. S.S.,
g. Unlawful confinement of Ms. P.S., and,
h. Unlawful confinement of Mr. Sujeethan Pararasasinkam.
[7] At the outset of trial, Ms. Vanderwyk entered guilty pleas to all charges against her except the charge of Attempt Murder. As such, the only issue to be determined in relation to her involvement is whether the Crown has established that she was a party to the attempt murder of P.S. This determination turns on two issues. First, the Crown must establish that the person who pointed the gun at P.S.’s head attempted to murder P.S. Second, the Crown must further prove that Ms. Vanderwyk did something to aid or abet that offence. If the Crown fails on either issue, Ms. Vanderwyk is to be acquitted of this remaining charge.
[8] Ms. Forbes’ primary defence is identity. She argues that the Crown has failed to prove beyond a reasonable doubt that she is the second person inside the jewellery store along with Ms. Vanderwyk. Ms. Forbes also advances a number of alternative arguments. In particular, she argues that the Crown has failed to prove that her intent was to murder either P.S. or Mr. S.S. She also argues that the offence of unlawful confinement is not made out as the purported acts of confinement do not extend beyond that inherent in the commission of the offence of robbery. Lastly, she argues that the Crown has failed to prove that she possessed a firearm contrary to a weapons prohibition order.
Overarching Legal Principles
[9] Both Ms. Forbes and Ms. Vanderwyk are presumed innocent of each and every count in the indictment. It is the Crown’s onus to prove the charges beyond a reasonable doubt. Neither Ms. Forbes nor Ms. Vanderwyk is required to prove anything.
[10] Neither accused, as is her right, elected to testify. The Crown did, however, tender Ms. Forbes’ statement to police as part of its case. The statement is mainly exculpatory, as Ms. Forbes denies any knowledge of the robbery and denies ever having been to the Asia Gold jewellery store. If I accept the exculpatory portions of Ms. Forbes statement, I must find her not guilty on the counts relating to the robbery of the jewellery store. However, I do not need to accept that evidence in order to find Ms. Forbes not guilty of those charges. If that evidence leaves me with reasonable doubt on any count, Ms. Forbes is entitled to an acquittal on that count. Even if none of the evidence that favours Ms. Forbes leaves me with reasonable doubt, I must nonetheless review the balance of the evidence to assess whether on the basis of the evidence I accept the Crown has proven the case beyond a reasonable doubt.
[11] The Supreme Court has said that a reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[12] While likely or even probable guilt is not enough, proof to a level of absolute certainty is also not required. While there is no mathematical percentage used to describe proof beyond a reasonable doubt, it is understood that it falls much closer to absolute certainty than to proof on a balance of probabilities.
[13] In short, if, based upon the evidence before the court I am sure that Ms. Forbes and/or Ms. Vanderwyk committed one or more offences, I must convict her since this demonstrates that I am satisfied of her guilt beyond a reasonable doubt. If I am not sure, I must acquit.
[14] To be clear, I must also consider the evidence against each accused separately. Evidence that one accused committed the offence is not evidence in and of itself that the other accused committed the offence. Similarly, I must consider the evidence individually on each count in the indictment in order to assess whether the Crown has proven that particular count beyond a reasonable doubt.
Overview of the Robbery
[15] Much of the evidence relating to the nature of the robbery is not in dispute. Indeed, there is no issue that on August 1, 2014, two female suspects entered the Asia Gold jewellery store located on Steeles Avenue West, in Toronto. One was armed with a firearm. The other was armed with a taser. Inside the store they encountered the owner of the business, Mr. S.S., his employees Mr. Pararasasinkham and Mr. Vaya, as well as the owner’s daughter, P.S. The two female suspects had earlier that day entered the store under the pretext of purchasing jewellery, but were obviously “casing” the store in anticipation of the robbery.
[16] The jewellery store has a double door security system that requires customers to be “buzzed in”. As I understand it, customers are able to enter the first set of doors but in order to enter the second set of doors, which leads to the jewellery showroom, the first set of doors must be closed and an employee needs to activate a buzzer that unlocks the doors. However, if the second set of doors remain opened, the front doors will remain locked.
[17] Once the two suspects entered the store, they produced their respective weapons and began issuing commands to those present. The taser was deployed on Mr. Pararasasinkham, who was struck in the chest area. The firearm was brandished against Mr. Pararasasinkham and Mr. S.S. A shot was fired at Mr. S.S. The bullet missed him, striking a door to the jewellery repair room at the back of the store. The bullet went through the door and lodged into a work bench which was occupied by Mr. Vaya. Miraculously neither Mr. S.S. nor Mr. Vaya were injured, though they both could have been easily killed.
[18] The suspects eventually turned their attention to P.S., who at the time was 11 years of age. P.S. was cowering in the front corner of the store. One suspect, admitted to be Ms. Vanderwyk, vaulted over the counter and grabbed P.S., grappling with her, while the second suspect, alleged to be Ms. Forbes, trained her firearm on P.S. Further commands were issued and they were backed by threats to kill in the event of non-compliance. The interaction with P.S. lasts a matter of seconds and is fluid and frantic.
[19] It appears that the two suspects wanted the front doors unlocked so that three additional male suspects who were outside in the parking lot could enter the store, presumably to assist with the robbery.
[20] The two suspects soon realized that their attempts to have the front door of the jewellery store opened were futile, and it appears that they decided to abandon their plans to rob the jewellery store and simply fled.
[21] A significant portion of the robbery was captured on surveillance videos entered as Exhibit 20. This exhibit largely corroborates the viva voce testimony of the witnesses to the robbery. I note that Exhibit 20 is a video compilation of five video feeds taken from the security camera system at the Asia Gold jewellery store. The version on Exhibit 20 is not the original high quality video that would have been found on the security camera system, but rather is a lower quality copy taken using a cell phone camera. The original, which contained a feed from each of the 16 cameras located throughout and outside the jewellery store, was lost or destroyed following the robbery. A number of witnesses, including police witnesses, viewed the original video and testified as to their recollection of what could be seen on the original video. Some key observations relating to gestures made by the person holding the gun during the robbery could only be seen, or could best be seen on the original video, but not on the copy filed as Exhibit 20.
[22] The police delayed the seizure of the original video as the robbery took place on the long weekend in August. The plan was to have a tech unit attend after the holiday to retrieve the video. Perhaps unsurprisingly, when the tech unit returned to retrieve the video following the long weekend they discovered that it had been lost or destroyed. The failure of the police to immediately seize what was obviously known to be a key piece of evidence is the subject of the Charter application.
Evidence of Identity
[23] None of the witnesses to the robbery, apart from Mr. S.S., could identify Ms. Forbes as one of the suspects involved. Mr. S.S. offered a bare in-dock identification of Ms. Forbes and Ms. Vanderwyk as the robbers. When this identification was offered, Ms. Forbes and Ms. Vanderwyk were the only people sitting in the defendant’s dock and they were the only non-white persons in the courtroom. This purported identification had an off-the-cuff quality to it and was not responsive to the question that was being asked by the Crown. Perhaps for this reason and in recognition of the minimal value of this purported identification, the Crown did not place any weight on it in her submissions. The Crown, nonetheless, argues that it has presented a sufficiently strong circumstantial case that establishes beyond a reasonable doubt that Ms. Forbes is the second person inside the Asia Gold jewellery store.
[24] The Crown points to following items of evidence which it says support the only reasonable inference, namely, that Ms. Forbes is the suspect with the gun seen on Exhibit 20. The items of evidence include the following:
a. The photographs taken from the original surveillance footage (Exhibit 27 and 28), and the video (Exhibit 20) which show two suspects who share the same general physical characteristics as Ms. Forbes and Ms. Vanderwyk. Ms. Forbes has darker coloured skin and is roughly the same height and weight as the suspect armed with the gun.
b. The suspect with the gun appears to have a wig or weave that is in a “bob-style”. Ms. Forbes admits in her statement to police that she had a weave that was “like a bob cut” and that it belonged to her sister. Following the execution of a search warrant at her home the police found a number of mannequin heads and wigs, as well as a box for a wig. The box depicts a “bob-style” wig, though no matching bob-style wig was found.
c. During the course of the robbery, a number of items fell from the purse of the suspect with the gun. Two hairbands were retrieved from the showroom area of the Asia Gold jewellery store and it appears they came from the suspect’s purse. DNA taken from the hairbands is linked to Ms. Vanderwyk, who was not holding the purse during the robbery.
d. There is evidence of a close association between Ms. Vanderwyk and Ms. Forbes. Cell phone records show significant contact between them, both in terms of calls and text messages. Ms. Forbes admits in her statement that she and Ms. Vanderwyk were once in a romantic relationship, though were no longer friends at the time of the statement. Intercepted calls make it clear that they know each other. Lastly, they were both residing at the same apartment complex.
e. On August 1, 2014, the day of the robbery, there is significant contact between the cell phone of Ms. Forbes and the cell phone of Ms. Vanderwyk. A total of 57 calls and text messages take place between the two phones that day.
f. The travel patterns of the two cell phones show that they were both in the immediate vicinity of the Asia Gold jewellery store at the time of the robbery. In addition, the travel pattern supports the inference that Ms. Forbes and Ms. Vanderwyk were travelling together, or at least in the same general direction prior to and after the robbery. (See Exhibits 66, 67(a) and (b), 68(a) and (b)).
g. On August 2, 2014, the day after the robbery, the two cell phones are in communication with each other and in different locations. (See Exhibit 71).
h. The wiretap intercepts show that Ms. Forbes responds to the stimulation techniques employed by the police – which involved the posting of Crime Stoppers posters in the vicinity of her residence and attending at the residences of Ms. Forbes’s family and friends asking to speak to her about the robbery. Ms. Forbes admits in her statement to police that she saw the Crime Stoppers posters. As well, Ms. Forbes’ comments in the intercepts demonstrate, at a minimum an awareness that police have an interest in her in relation to the robbery, and implicitly an awareness of the robbery itself.
i. Ms. Forbes lies to police during her statement. In particular, she lies about having multiple cell phone numbers when the evidence establishes that she used one cell phone number only. She lied when she told police that she does not know where Ms. Vanderwyk lives – this lie was contradicted by intercepted communications, particularly Session 1687 and Session 3404. She lied when she claimed not to be able to identify a photograph of Ms. Vanderwyk shown to her during the interview. She lies about her own phone number, though ultimately admits it. She claims not to know Ms. Vanderwyk’s phone number, though her phone records suggest that it is a frequently called number. She lies about the number of times she was in contact with Ms. Vanderwyk, as set out in her cell phone records. She claims to be unable to identify Tiffany Graham Booth, though it is clear that they are well known to each other. She denies having heard anyone speak about the Asia Gold jewellery store robbery, though the intercepts would suggest otherwise. She also tells the police that those responsible for the robbery are not in Canada and that the police should ask Ms. Vanderwyk about them as she would know. She claims to not recognize photographs of Aaron Jones, Kweku Gyabeng and Keyon Small, despite intercepts and phone records that suggest she is in frequent contact with all three. She refuses to identify her own voice in certain intercept excerpts played to her. She would not admit that she was at home when the police knocked on her door and left a card – as part of a stimulation technique – though the intercepts show she was at home at the time and knew the police were knocking. She claims to have never had a gun, and in one of the intercepts she makes a reference to a “ting” being taken from her house by a guy, and makes a further reference to having a lifetime firearm ban.
j. Lastly, the Crown points to her alleged possession of a gun at some point proximate to April 23, 2015 and her attempts to purchase a gun by text messages sent on April 29, 2015, as evidence in support of the inference that she was the armed suspect on August 1, 2014.
[25] The evidence of identity is circumstantial. In order to be satisfied that the identity of the suspect with the gun has been proven to be Ms. Forbes beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence. In conducting this assessment, I must consider the evidence cumulatively and as a whole. While each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must view all of the pieces of evidence together to see whether the Crown has met its burden, see R. v. Villaroman, 2016 SCC 33.
[26] In my view, the circumstantial evidence of identity taken as whole fails to prove beyond a reasonable doubt that Ms. Forbes is the suspect armed with a gun inside the Asia Gold jewellery store on August 1, 2014. At best, I am satisfied that she is possibly the person inside the store and probably somehow involved in the robbery. Neither of these findings are sufficient for culpability on the criminal standard.
[27] I reach this conclusion for the following reasons:
a. The cell tower data and phone records show a call lasting approximately five minutes between the cell phone used by Ms. Vanderwyk and the cell phone used by Ms. Forbes at 8:21 p.m. until 8:26 p.m. The robbery of the jewellery store takes place at 8:23 p.m. and lasts approximately three minutes. I pause to note that Ms. Vanderwyk admits to possession of her cell phone at the time of the robbery. Indeed, it can be seen in her hand in the photographs and videos. No cell phone is seen in the second suspect’s hands. The Crown theory is that Ms. Forbes is in possession of her cell phone before and after the robbery but “must have” handed it off to someone else while the robbery was in progress. The Crown further hypothesizes that Ms. Forbes’ phone must have been given to the male parties who were outside the jewellery store so that they could listen in on the robbery. If one assumes that Ms. Forbes is inside the jewellery store, then the Crown’s theory has significant cogency. It naturally follows that if Ms. Forbes is inside the jewellery store holding the gun, her cell phone is probably elsewhere, likely with the male parties outside the store. However, I cannot start with the assumption that Ms. Forbes is inside the store. The evidence must establish that she is inside the store in order for this explanation to have any evidentiary grounding. As it stands, this piece of evidence supports a number of plausible inferences. One inference is that Ms. Forbes is on her phone but not inside the jewellery store. If she is on her phone but not in the store an inference arises that she may be outside or at least nearby keeping watch on the progress of the robbery, or perhaps simply listening in without any role in the robbery. A second inference is that Ms. Forbes is in the store but has given the phone to someone else who is listening in to the robbery as it progresses. A third inference is that Ms. Forbes is in the store with her phone in a pocket or purse but has also placed a call from her phone to Ms. Vanderwyk’s phone at the very time of the robbery, perhaps in an attempt to pre-emptively counter any later suggestion that she was inside the jewellery store. A final inference is that she simply gave her phone to someone else and is not present at the scene of the robbery and not otherwise involved.
b. In relation to this final inference, in order for the Crown’s theory to work it needs to prove that the cell phone was in Ms. Forbes’ possession immediately prior to and after the robbery. If it was not in her possession, a key plank of the Crown’s circumstantial case on identity falls away. In other words, in order to use the travel patterns established by the cell towers to demonstrate that Ms. Forbes was in the vicinity of the robbery before and after the robbery and, further, that she travelled in the same general direction as Ms. Vanderwyk, the Crown must prove that Ms. Forbes was in possession of her cell phone. Coincidentally, in order for the Crown’s overall theory to work it must then also prove that Ms. Forbes was not in possession of her phone at the precise time of the robbery. The Crown tendered a substantial body of evidence that demonstrates that the cell phone number admitted as being used by Ms. Forbes during the time frame of the wiretap intercepts was also the cell phone number she was using around the time of the robbery, and in fact was the cell phone she regularly used. That said, I am unable to determine whether she had the phone with her in the hours leading up to the robbery. It is possible that she gave the phone to someone else. This possibility is supported by the evidence of the calls between Ms. Forbes and Ms. Vanderwyk at the actual time of the robbery. Indeed, the Crown’s primary theory requires this to have happened. Ultimately, I have no way of determining when the phone was passed off. It could have occurred moments prior to the robbery, or it could have occurred an hour or two earlier. The phone records for calls and texts to and from this phone in the hours surrounding the robbery do not assist in determining this issue. Indeed, they reveal that on August 1, 2014, there were no calls or texts to or from the phone from 5:56 p.m. until the call with Ms. Vanderwyk at 8:21 p.m. The last two phone calls were at 4:28 and 4:29 p.m. and came from an unknown number that had not been in contact with Ms. Forbes phone on other occasions captured by the date range of the records. That said text messages sent at 4:27 p.m. were sent to a “James Brown”, to whom some 210 calls and texts had been made or sent prior to August 1, 2014 – thus supporting an inference that it was Ms. Forbes who sent these texts. Assuming that to be the case, the evidence suggests that at this point in time the phone is near the cell tower located at 30 The Queensway in Toronto and near Ms. Vanderwyk’s location but some distance from the robbery. In any event, what happens after that is not established by the evidence. In my view, it is possible that Ms. Forbes travelled to the jewellery store along with the three men and Ms. Vanderwyk. It is also possible that she gave her phone to someone at approximately 4:27 p.m., or perhaps some later time. I am unable to decide which possibility prevails on this evidence.
c. Further, the travel patterns demonstrated by the cell tower records raise another difficulty for the Crown. On the Crown’s theory, Ms. Vanderwyk and Ms. Forbes arrive at the Asia Gold jewellery store in one car in the company of three males who wait outside the store. After the robbery both cell phones proceed in a westerly direction, with Ms. Vanderwyk’s phone registering on a tower located at 1110 Finch Avenue West at 8:50 p.m. and then 9:41 p.m., and Ms. Forbes’ phone registering at a nearby tower located at 750 Wilson Heights Boulevard at 8:45 p.m. However, after that Ms. Forbes’ phone travels north towards a cell tower located at 120 Promenade Circle in Thornhill, with calls registering at 9:09 p.m. and 9:38 p.m., and Ms. Vanderwyk’s cell phone heads south towards a tower located at 3900 Allen Road, with a call registering at 9:51 p.m. Two possible inferences arise from this evidence. The first inference is that the two phones are not travelling in unison. The second inference is that if the phones were travelling in unison, for example by being in the same car, that pattern of travel would require that a call bounce off a tower in Vaughan at 9:38 p.m. and then bounce off a tower at 3900 Allen Road at 9:51 p.m., thirteen minutes later. I have no evidence before me suggesting that the distance between the towers, even assuming the trip commences and ends at the outermost edges of the cell tower coverage areas, could be done in 13 minutes. In any event, the best I can determine is that both are possibilities. The Crown’s theory is that Ms. Forbes is with Ms. Vanderwyk before and after the robbery. The evidence suggests that Ms. Forbes, if she regained possession of her phone at some point after the robbery, may or may not have been travelling with Ms. Vanderwyk.
d. The physical resemblance evidence does not greatly assist the Crown on the issue of identification. While it does not exclude Ms. Forbes as a potential suspect, it is generic evidence of physical characteristics that are shared by many people. In addition, the evidence of the wig box at Ms. Forbes’ home is also of limited value. The box itself has two wigs depicted on it, one of which is a “bob-style wig”. There is no way of knowing which wig was in the box originally. As well, the photo taken at the time of the search shows a number of mannequin heads with different wigs on them. Ms. Forbes confirms in her statement to police that she was in hair styling school and that she had access to a bob-style weave of an undescribed colour that belonged to her sister. At best this evidence might support the inference that Ms. Forbes had access to wigs, perhaps similar to the one worn by one of the suspects. However, this fact adds little to the identification analysis. Wigs and other disguises are commonly used in robberies. Apart from a vague description of a “bob-style” wig or weave, there is no evidence that connects anything in Ms. Forbes’ possession with the wig worn by the suspect in the robbery.
e. Similarly, the evidence of association between Ms. Forbes and Ms. Vanderwyk, while a factor to consider, does not strongly assist the Crown. It is clear that Ms. Vanderwyk and Ms. Forbes know each and are in frequent contact. It is also clear that Ms. Forbes knows of Ms. Vanderwyk’s involvement in the robbery and likely knows a fair bit about the robbery itself. However, it is a leap to assume that given their proximity they would have committed this offence together. At best, the evidence of association is a factor that I place some limited weight on.
f. None of the intercepted communications contain an admission of participation in the robbery. At the highest, they reveal the fact that Ms. Forbes knows about the robbery and also knows that the police are looking for her and Ms. Vanderwyk in relation to it. This evidence arose in response to stimulation techniques adopted by the police in order to get the targets of the investigation talking about the robbery. The techniques used by police were geared towards demonstrating that the police believed she was involved in the robbery and were closing in on her. In assessing this evidence I am mindful of the fact that Ms. Forbes was obviously reacting to these techniques, and reasonably feared that the police would arrest her for what they believed to be her involvement in the robbery. That fear does not, however, necessarily translate into evidence that she committed the offences. If Ms. Forbes had no involvement in the offences but came to believe that the police were interested in her, her reaction might well have been the same especially if she had knowledge of the robbery and/or the parties involved.
g. Ms. Forbes clearly and repeatedly lied in her statement to police. If I am satisfied that evidence independent of the statement demonstrates the falsity of the statement, I am entitled to use the disbelieved portions of the statement as post- offence conduct; see R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (Ont.C.A.). In this case, I am satisfied that the Crown has tendered independent evidence that demonstrates the falsity of many, though not all of her various statements to police. As such, I am entitled to consider what inferences can be drawn from this fabricated or untruthful evidence. In this regard, I note that Ms. Forbes has an obvious antipathy towards the police and police investigations. Her statement to police suggests that she is a person who is bent on thwarting the police questioning, through strategic assertions of the right to silence and/or blunt and false denials of various facts put to her. In doing so, she lies repeatedly and these lies give rise to a potentially culpable inference. However, her lies are equally consistent with her obvious antipathy towards the police and her desire to maintain her silence and not inculpate any of the people whom she may know are involved in the robbery. Again, while I am satisfied that she lied to police, I do not ascribe much weight to those lies in assessing the identification evidence.
h. Lastly, I am of the view that Ms. Forbes’ discussion of a gun on April 23, 2015 and her purported attempt to purchase a firearm on April 29, 2015, are in no way relevant or probative of whether she was present at the scene of the robbery on August 1, 2014.
[28] Looking at all the evidence of identification as a whole, I conclude that Ms. Forbes was possibly the second suspect and probably involved in some fashion in the robbery of the Asia Gold jewellery store. I am not, however, convinced beyond a reasonable doubt that she was the second suspect inside the store armed with the handgun. As a result, I find her not guilty of Counts 1 to 9, 13, 14 and 15.
Possession of a Firearm
[29] Ms. Forbes is also charged in Count 17 of the indictment with the offence of possessing a loaded firearm, namely a handgun, between the dates of August 1, 2014 and June 5, 2015. It is admitted that she does not possess an authorization or licence to do so. The Crown advanced three theories in support of this offence. First, if I was to be satisfied that Ms. Forbes was the armed suspect involved the robbery, the evidence relating to the possession and use of the handgun in the robbery would establish the offence. Second, the offence could also be made out on the basis of Ms. Forbes’ intercepted cell call on April 23, 2015 (Session 3404), wherein she stated “I’m so lucky this guy took the ting too...I have a lifetime firearm ban”. In the further alternative, the Crown argues that the offence of an attempt to possess a firearm could also be made out on the basis of the text messages sent and received on April 29, 2015 (Sessions 4559, 4560, 4561, 4563, 4564, and 4565). These text messages and intercepted cell call suggest that Ms. Forbes offered to purchase a firearm from another person.
[30] As indicated, I am not satisfied that Ms. Forbes is the armed suspect involved in the robbery so she cannot be convicted of this count on that basis. Secondly, while I accept the evidence of the police expert witness, Detective Kerr (Det.), on coded language and find that the reference to “ting” in the intercepted call is a reference to a firearm, especially when viewed in the context of the subsequent reference to a lifetime firearm ban, I am not satisfied beyond a reasonable doubt that this admission is sufficient to make out the offence of possession of a loaded firearm, namely a handgun, between the dates of August 1, 2014 to June 5, 2015. In my view, the admission is an admission of past possession of an item, likely a firearm, but I cannot be sure that it was an actual firearm, let alone a loaded handgun. Turning to the final theory, the text messages and call show that Ms. Forbes offered to take and/or purchase a gun from another individual who was in the process of purchasing a different handgun for himself. I am not satisfied that she ever reached an agreement to purchase the gun sufficient to make out an attempt to possess the gun; see R. v. Ellis 2016 ONCA 358. While an agreement to purchase a gun is not necessarily a pre-requisite to an attempt to possess a gun, in the circumstances of this case there is no other evidence - apart from the mere offer to take or purchase the gun, that suggests Ms. Forbes went beyond mere acts of preparation, even assuming her request demonstrated an actual intent to possess a firearm. I therefore find Ms. Forbes not guilty of Count 17. It follows that she is also found not guilty of Count 16 of the indictment, which relates to possessing a firearm while prohibited from doing so by reason of an Order under Section 109 of the Criminal Code.
Attempt Murder
[31] I turn lastly to Ms. Vanderwyk’s one remaining count, which is the attempt murder of P.S.
[32] In relation to the elements of the offence of attempt murder, I note that an “attempt” is defined in s. 24(1) of the Criminal Code as follows:
24(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
[33] In accordance with R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, nothing short of a subjective intent to kill will suffice as the mens rea for attempt murder. Proof of some lesser intent is not sufficient.
[34] Where the allegation is that a person is a party to an offence under s. 21(1)(b) of the Criminal Code, the person must know or be wilfully blind to the mens rea of the principal of the offence. While the person does not need to adopt the principal’s intent as his or her own, the person must do something with the intent of assisting the principal in the commission of the offence; see R. v. Briscoe, 2010 SCC 13, at paras. 17 and 18.
[35] The actus reus of attempt murder can encompass a very wide range of acts. Indeed, by definition “anything” done for the purpose of carrying out an intention meets the actus reus component of the offence. The only qualification is that the act committed must be one that is beyond a mere act of preparation; see R. v. Cline, 1956 CanLII 150 (ON CA), [1956] O.R. 539 (Ont.C.A.). In this regard I note that the mere pointing of a firearm at someone, which is its own offence can, when coupled with an intent to kill, satisfy the actus reus of attempt murder. The firing of a shot is not required; see R. v. Boudreau, 2005 NSCA 40, where an accused was convicted of attempt murder for confronting his wife in close proximity with a loaded rifle which he pointed at her while he had one hand on the trigger, and see also R. v. Goldberg, 2014 BCCA 313, where the accused was convicted of attempt murder in circumstances where he made extensive efforts to find the victim and upon finding her pointed a gun at her and threatened to shoot her. In both of these cases, the key issue was the intent. Once a finding was made that the accused had the requisite intent, there was little difficulty in finding that the pointing of a loaded firearm was an act in furtherance of the intent and beyond an act of mere preparation.
[36] The Crown argues that the suspect armed with the gun had a subjective intent to kill P.S., and attempted to do so when she pointed the gun at P.S. and pulled the trigger. The Crown points to the nature of the threats and commands that were uttered at the time, including a threat to kill if P.S. did not comply with the demand to unlock the jewellery store doors. As well, the Crown points to the fact that immediately prior to the gun being trained on P.S. the suspect had discharged a round towards P.S.’s father, narrowly missing him.
[37] The Crown next argues that Ms. Vanderwyk’s actions during this portion of the robbery support the conclusion that she was aiding and abetting the attempt murder. The video reveals that Ms. Vanderwyk is holding onto P.S. while the gun is being pointed at her. This portion of the robbery lasts mere seconds and is very fluid and fast-paced.
[38] Evidence of the trigger pull comes from a number of sources. First, in her evidence before me P.S. claimed to recall seeing the suspect actually pull the trigger. This was the first mention of her seeing this. It was not mentioned in any prior statement, nor in her evidence at the preliminary inquiry. The Crown also called police officers Pleskina, Williamson and Coulson, who viewed the original high quality security video on the night of the robbery. The essence of their evidence was that when the suspect points the gun at P.S.’s head, a “flinch” can be observed. The flinch was described as a distinct downward motion of the hand holding the gun. Interestingly, Det. Coulson could not see the purported flinch on Exhibit 20. Det. Williamson claimed he could see it on a high resolution monitor on which he viewed Exhibit 20 on following the preliminary inquiry, though he could not see it while testifying at the preliminary inquiry. Lastly, Det. Pleskina testified that the flinch could be observed on Exhibit 20.
[39] The Crown also called a firearm expert, Det. Kamstra, who testified that inexperienced users of firearms tend to anticipate the upward recoil of a firearm when they pull the trigger, and as a result they often flinch the gun downwards in an attempt to compensate. Experienced users learn to keep a rigid posture and not to react in anticipation of recoil. According to the expert, when a person anticipates a recoil and pulls the trigger but the gun does not fire, one will observe a downward flinch of the firearm. Det. Kamstra gave no evidence regarding the presence of a flinch on Exhibit 20. However, he did observe what appears to be a “canting” gesture on Exhibit 20 and opined that the canting gesture – which involves turning a gun sideways – is a gesture the can follow a misfire. He explained that if a person pulls the trigger and nothing happens, the instinctive and trained reaction is to turn the gun sideways and examine it to determine what happened. In his view, when Exhibit 20 is played frame by frame, this “canting” motion can be seen when the gun is being pointed at P.S. as she cowers behind the counter. His evidence on this issue was buttressed by evidence of the officers who viewed the original video as well as Exhibit 20, and noted that the gun appeared to have an “open” slide and visible barrel following the discharge of the bullet in the direction of P.S.’s father. An “open” slide and visible barrel would indicate that the gun had malfunctioned, jammed, or was out of ammunition.
[40] Taken together, the Crown argues that this evidence supports the following findings. First, the suspect with the gun fired it towards P.S.’s father intending to kill him. Immediately after the gun was fired the slide is seen to be open, and the barrel can be seen indicating that the gun is inoperative. The suspect with the gun then trains it on P.S. and makes certain demands backed by a threat to kill. The gun is flinched, indicating an attempt to fire the gun. The gun is then “canted”, indicating that the user of the gun has become aware of the fact that gun has not fired and is trying to examine it briefly. The gun is then retrained on P.S., and shortly thereafter is used in an attempt to strike P.S. – indicating that the user by then knew that the gun would not fire.
[41] These findings in turn support one clear inference, and that is that the suspect armed with the gun attempted to fire the gun at P.S.’s head. The Crown further argues that if I am satisfied that the suspect with the gun attempted to shoot P.S. in the head, the only reasonable inference would be that it was done in furtherance of a subjective intention to kill.
[42] I have some concerns about the evidence relating to the purported trigger pull. The portion of the robbery that relates to the interaction with P.S. lasts mere seconds. The movements of the suspect with the gun appear frantic and unfocussed. The gun is being waved around. P.S. is struggling with Ms. Vanderwyk, who is trying to control her movements. In the circumstances, I am not satisfied that P.S. would have been able see a trigger pull. Indeed, I am not sure that a trigger pull on a semi-automatic handgun involves any significantly observable movement, especially at some distance to an untrained eye and under the intense circumstances of the robbery. P.S.’s first mention of the trigger pull was in her evidence before me, some three years after the incident. While I accept that she truly believes she saw a trigger pull, I find her evidence on this point unreliable and I do not accept it. In terms of the purported flinch, I agree that when the video is slowed down to frame by frame, flinch- like movements can be identified. I also accept the evidence of the officers that they viewed movements that appeared to them to be flinch-like gestures. However, when I view the video clip I am unable to determine with any certainty whether the flinch is related to a failed trigger pull, or whether the flinch-like gesture is part and parcel of the erratic gesturing and movement of the gun as it is being waved by the suspect.
[43] Similarly, with respect to the “canting” I agree that when the video is viewed frame by frame a canting gesture can be discerned. However, when the video is viewed in real time the “canting” is barely perceptible and hardly indicative of an attempt to examine a malfunctioning firearm. The gesture is equally, if not more consistent with the erratic waiving of the gun, as P.S. is struggling with Ms. Vanderwyk.
[44] Lastly, when the interaction with P.S. is viewed in the context of the robbery, it strikes me that the purpose of pointing the gun at P.S. was to get her to open the outside doors of the jewellery store so that the three males outside could enter the store, presumably to assist with the robbery. It would not make a lot of sense to shoot P.S. in the head to accomplish this purpose. It seems more likely that the firearm was being waved and pointed at P.S. in order to compel her assistance in opening the door. The intent was to instill fear and use the threat of death, coupled with the pointing of the firearm to secure compliance.
[45] Having said that, for the purposes of this analysis I will assume that the Crown has been able to prove that the suspect with the gun intended to kill P.S. and this intention was evidenced by the trigger pull, flinching and canting of the weapon. The issue that remains to be determined is whether Ms. Vanderwyk would have been subjectively aware of the second suspect’s intention to kill P.S. and further took steps to aid and abet that intention. To be clear, I would not need to find that Ms. Vanderwyk also intended to kill P.S. It would be sufficient for me to find that Ms. Vanderwyk only wanted to aid the second suspect, knowing of the second suspect’s intent to kill.
[46] On the evidence before me, it is clear that the intent to kill P.S. could only arise during the unfolding of the robbery. There is no suggestion that the suspect with the gun entered the jewellery store with the intent to kill anyone. The intent was to commit armed robbery. That being the case the intent to kill had to crystalize during the unfolding of the events, and it arguably would have done so when the gun was pointed at P.S.’s head and the commands to open or unlock the door went unheeded. The outward manifestation of the intent to kill would have been observable in the trigger pull, the flinching and canting motions discussed above, coupled with the threat to kill. If Ms. Vanderwyk observed and interpreted these movements and utterances as demonstrative of an intent to kill P.S. by the second suspect and then took steps to aid that intent by holding P.S. so that the second suspect could shoot her, she would be guilty of aiding the attempt murder.
[47] In my view, given the brief duration and fluid unfolding of the event, it would have been virtually impossible for Ms. Vanderwyk to observe, assess and interpret the signs that suggest an intent to kill on the part of the second suspect. The more reasonable inference is that Ms. Vanderwyk was helping the second suspect by holding P.S. so that she could be threatened and intimidated into unlocking the front door of the jewellery store. On this basis, even if I were to find that the second suspect had the intent to kill, I am not satisfied beyond a reasonable doubt that Ms. Vanderwyk would have been subjectively aware of that intent and would have undertaken her acts of restraining P.S. with the intent of aiding the second suspect.
[48] As a result, I find Ms. Vanderwyk not guilty of attempt murder.
The “Lost Evidence” Charter Application
[49] In view of my disposition of the charges in this matter, I need not determine the Charter application. However, I will note the following. The high quality security video evidence was readily known to be a key piece of evidence on the evening of the robbery. It should have been seized promptly. Instead, it was lost through what I find was unacceptable negligence. The loss necessitated lengthy testimony where witnesses were called upon to reconstruct, years after the fact, what they saw during their first viewing of the video. This created an unfairness that was thankfully attenuated by the late discovery of the lower quality cell phone camera copy of portions of the original video.
[50] Nonetheless, the decision to not immediately seize the video is highly regrettable. It could easily have imperilled this prosecution.
Conclusion
[51] Ms. Forbes is found not guilty on all charges. Ms. Vanderwyk is found not guilty of attempt murder.
Justice J. Di Luca
Read Orally: November 24, 2017
Released: April 26, 2018
CORRIGENDA
Publication ban added pursuant to Section 486.4 of the Criminal Code
Name of Asia Gold jewellery store owner changed to initials
Name of daughter of jewellery store owner changed to initials
CITATION: R. v. Forbes and Vanderwyk, 2017 ONSC 7232
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NIKEITA JESSEN FORBES and KATRINA ANNEMARIE VANDERWYK
Defendants
REASONS FOR JUDGMENT
Justice J. Di Luca
Read Orally: November 24, 2017
Released: April 26, 2018