R. v. H.A., 2019 ONSC 3932

COURT FILE NO.: 1/18

DATE: 2019 06 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.A.

Amy Stevenson, for the Crown

Ariel Herscovitch, for H.A.

HEARD: June 10, 11, 12, 13, 14, 17, 18 and 19, 2019

REASONS FOR JUDGMENT

conlan j.

I. Introduction

The Charges

[1] H.A. faces several criminal charges arising from a string of armed robberies in Peel and Halton Regions in December 2016 and January 2017. Specifically, he is charged as follows:

count 1 – January 12, 2017, at Burlington, possession of stolen property (a licence plate) under $5000.00, contrary to section 354(1)(a) CCC;

count 2 – December 23, 2016, at Oakville, disguise with intent, contrary to section 351(2) CCC;

count 3 – December 23, 2016, at Oakville, attempted robbery with a firearm, contrary to section 344(a) CCC;

count 4 – December 23, 2016, at Oakville, point a firearm, contrary to section 87 CCC;

count 5 – January 2, 2017, at Brampton, disguise with intent;

count 6 – January 2, 2017, at Brampton, robbery, contrary to section 344(b) CCC;

count 7 – January 7, 2017, at Brampton, disguise with intent;

count 8 – January 7, 2017, at Brampton, attempted robbery with a firearm;

count 9 – January 7, 2017, at Mississauga, disguise with intent;

count 10 – January 7, 2017, at Mississauga, robbery with a firearm;

count 11 – January 7, 2017, at Mississauga, disguise with intent; and

count 12 – January 7, 2017, at Mississauga, robbery with a firearm.

A Brief Overview of the Case

[2] The theory of the police and the Crown is as follows.

[3] H.A. was a passenger in a Mazda Protégé car that travelled to a plaza in Burlington on January 12, 2017. That car had a stolen licence plate attached to it. Hence, count 1. That car was allegedly used in the commission of all or some of the robberies.

[4] Counts 2, 3 and 4 relate to an attempted robbery that took place at a Royal Bank branch in Oakville on December 23, 2016. There is no question that the event took place. We have good video of it. The two robbers were disguised. One of the robbers used and pointed a firearm. Nothing was actually stolen.

[5] Counts 5 and 6 relate to a robbery at a Hasty Market convenience store in Brampton on January 2, 2017. Again, there is no doubt that the incident occurred. We have good video of it. The two robbers were disguised. Money and cigars were stolen.

[6] Counts 7 and 8 relate to an attempted robbery at a Mac’s Mart convenience store in Brampton on January 7, 2017. Similarly, there is no question that the event took place. We have good video of it. The two robbers were disguised. One of the robbers used and pointed a firearm. Nothing was actually stolen.

[7] Counts 9 and 10 relate to a robbery at a Mac’s Mart convenience store in Mississauga on January 7, 2017. Once again, there is no doubt that the incident occurred. We have good video of it. The two robbers were disguised. According to the store clerk, one of the robbers displayed a gun inside his coat or jacket. Money and cigars were stolen.

[8] Counts 11 and 12 relate to a robbery at a 7-Eleven convenience store in Mississauga on January 7, 2017. Likewise, there is no question that the event took place. We have good video of it. The two robbers were disguised. One of the robbers used and pointed a firearm. Money and cigars were stolen.

[9] In each case, the faces of the robbers on the videos are not visible because of the disguises that were worn – balaclavas and/or scarves.

[10] In each case, where the firearm is visible in the video, one can see that it is a handgun.

[11] On January 12, 2017, at a Starbucks in a plaza in Burlington, H.A. and three other males were arrested by the police. The vehicle that allegedly brought them there, the Mazda car, was searched and found to contain inculpatory evidence.

[12] H.A.’s DNA was found on more than one of the items seized from the Mazda car, but most importantly on a scarf. It is alleged that H.A. wore that scarf during the robberies, or some of them.

[13] One of the other arrestees, A.M., has admitted his involvement in the Royal Bank attempted robbery in Oakville. He has admitted that he was the man with the handgun. He has refused to say who the other robber was.

[14] There is no argument by the Crown that H.A. ever possessed or pointed a firearm during any of the robberies in question. The case against him on the firearm charges is premised on party liability.

[15] On count 1, the possession of the stolen licence plate, the Crown posits that H.A. was in joint possession of the plate, along with the other arrestees who travelled to the Starbucks plaza in Burlington on January 12, 2017.

[16] Finally, there is a concession by the Crown that must be noted before going any further. The Crown acknowledges that it cannot sufficiently link the handgun seized from the Mazda Protégé during the execution of the search warrant on January 14, 2017 to the gun used in any of the January 2017 robberies. Thus, the Crown invites this Court, on counts 7 through 12 of the Indictment, to find H.A. guilty on the basis of an imitation firearm having been used at the Mac’s Mart in Brampton, the Mac’s Mart in Mississauga, and the 7-Eleven in Mississauga.

The Trial

[17] H.A. was tried before this Court, judge alone, over 1.5 weeks. Both counsel were well-prepared, focussed, cooperative, and overall very competent. It was a treat to preside over the hearing.

[18] The Crown called numerous witnesses and filed dozens of exhibits. The Defence did not call any evidence.

The Issue

[19] The only issue is identity – was H.A. one of the disguised robbers at all or any of the places in question?

[20] The resolution of that issue requires this Court to decide the Crown’s similar act application. On the issue of identity, the Crown wants to have the evidence applied across the counts on the Indictment. The Defence opposes the application.

[21] We often refer to this as similar fact evidence. More precisely, it is similar act evidence, especially where the issue that it goes to is identity, in the context of robbery offences. After all, it is the act of each robbery and the actions and descriptors of each robber that are being analyzed.

The Basic Legal Principles

[22] H.A. is presumed to be not guilty. That presumption of innocence applies to each charge and never ceases unless and until the prosecution meets its burden to prove every essential element of that charge beyond a reasonable doubt. The burden of proof rests entirely with the Crown. H.A. has no burden to prove anything.

[23] Proof beyond a reasonable doubt is a high threshold. It means more than probable or likely guilt. It requires that the trier, this Court, be sure of H.A.’s guilt before finding him so.

[24] As H.A. is facing multiple counts, I must also remember that the verdicts need not necessarily be the same across the various charges.

The Essential Elements of the Offences

[25] In this case, it is unnecessary to review all of the essential elements of all of the charges. The only issue is identity.

[26] We have much video evidence of the actual crimes taking place – surveillance video from the Royal Bank in Oakville that was the subject of an attempted robbery in December 2016, and video footage from the convenience stores in Brampton and Mississauga that were robbed on the two days in January 2017.

[27] On each occasion, there were two culprits. Masked. Was H.A. one of them? That is the question to be decided.

II. Analysis

1. A Brief Sketch of the Evidence at Trial

Matt McDonald

[28] Matt McDonald (“McDonald”) is a very experienced detective with Toronto Police. On December 23, 2016, however, he was a civilian doing some personal banking in Oakville, at the Royal Bank (“RBC”) that was robbed.

[29] McDonald is a hero. He bravely confronted the robbers and foiled their attempt to steal money. He wrestled at length with the larger robber who had and was pointing a handgun. McDonald suffered a serious hand injury as a result.

[30] After being disarmed, the larger robber managed to escape. The smaller culprit had left previously.

[31] McDonald described the robbers as two black males, 5 foot eight to 6 feet tall, 25-30 years old.

Two RBC Employees

[32] To protect their privacy, I will not name herein the two RBC employees who testified at trial.

[33] The male employee testified that the robber with the gun was likely Somali. The witness used to have a Somali roommate. In cross-examination, that employee stated that the second robber looked “Arab”, with lighter skin.

[34] The female employee of RBC added little that was material to the trial evidence.

The Post-RBC Attempted Robbery Eye Witness

[35] Again, to protect her privacy, I will not name this lady who, on December 23, 2016, in the morning, saw something important after the RBC had been invaded.

[36] While she was walking outside, she observed a suspicious male who was running. He was a black male. Bushy, black hair. About 6 feet tall. He was wearing a long black coat to the knees. On a street not far from the RBC location, the male got into a waiting car. It was a “smallish” black car. The car then immediately drove away.

Richard Judson

[37] Richard Judson (“Judson”) is a sergeant with Halton Police. He was tasked with obtaining private home security system video footage from a residence on Newcastle Crescent in Oakville, the street where the eye witness mentioned immediately above had seen the male who was running get into the waiting car.

[38] Judson was successful in his task. The video footage was played in Court and clearly shows the person who was running get into the car.

[39] Judson described the car as looking like an older model Mazda Protégé or 323. In cross-examination, he fairly acknowledged that it could have been a Toyota.

A.M.

[40] This is the young man who attempted to rob the RBC and had the firearm at the time. He pleaded guilty on a prior occasion, in another Court.

[41] A.M. is also the man who was seen running and getting into the car on Newcastle Crescent. He admitted that at trial.

[42] A.M. is Somali. He is right-handed.

[43] A.M. was one of the four young men arrested by the police at the Starbucks in Burlington on January 12, 2017, along with H.A. He got to that location on that day in the Mazda Protégé that was ultimately searched by the police.

[44] Despite a successful application by the Crown to cross-examine A.M. at large, he was totally uncooperative at trial. He would not name the second robber at the RBC. He would not say whether the car that he got into on Newcastle Crescent was the same Mazda Protégé in question.

Clive Williams

[45] Clive Williams (“Williams”) is a very experienced detective with Peel Police. He was in charge of investigating the robberies in Brampton and Mississauga that are the subjects of counts 5 through 12 on the Indictment. Ultimately, the entire case was taken over by Halton Police.

[46] Besides what we can see in the videos filed as exhibits through Williams, we know from him that a witness recorded the licence plate of the vehicle associated with the Hasty Market incident on January 2, 2017 – BYVB 796.

[47] On December 6, 2016, that licence plate was reported to the police as having been stolen. In fact, both of the BYVB 796 plates were reported as stolen.

[48] One licence plate BYVB 796 ended up on the Mazda Protégé in question. According to Williams, external video footage from the Mac’s Mart attempted robbery in Brampton on January 7, 2017 shows a vehicle with the said rear plate but with a different front plate, ADWT 734. That front plate was registered to an unrelated lady who lives in Mississauga.

[49] The police have never recovered the second BYVB 796 plate or the second ADWT 734 plate.

[50] On January 11, 2017, the police, through surveillance, located the Mazda Protégé of interest. It had those two different licence plates on it. As of December 6, 2016, the Mazda was registered to H.A., though not plated.

[51] On January 11^th, the Mazda was seen being driven by another young man, H.K. He was one of the four males arrested on January 12^th.

[52] On January 11^th, H.A. was seen inside the Mazda, as a passenger. Also, on that day, the Mazda was seen at H.A.’s residence on Winding Trail in Mississauga.

[53] On January 11^th, H.K. and H.A. attended at a Burger King restaurant. Store video was played in Court. The young male admitted by the Defence to be H.A. is seen wearing a grey toque.

[54] I pause here to note that one of the robbers in the Hasty Market store video can be seen wearing a grey toque underneath a hood. And a grey toque was ultimately seized by the police from the Mazda Protégé.

[55] On January 11^th, many persons were seen by the police getting in and out of the Mazda. At one time, there were as many as five persons inside the car, including H.K. and H.A.

[56] Finally, we know from Williams that the search of the Mazda after the arrest of the four young men led to the discovery of many things of interest, including an Adidas bag (which looks similar to one visible in crime scene videos), a patterned scarf with tassels (which looks very similar to one seen in robbery videos and suspected by the police to have been worn by H.A.), a handgun, disposable gloves, a balaclava with one opening for both eyes, a wicker basket (which looks similar to one stolen in one of the convenience store robberies), Backwoods cigars (similar to those stolen in more than one of the robberies), a long trench coat (similar to that worn by A.M. during the RBC attempted robbery), money, and a grey toque.

Stephen Siomra

[57] Stephen Siomra (“Siomra”) is a sergeant with the Halton Police.

[58] On January 12, 2017, he was on the look-out for the Mazda Protégé in question. At 3:18 p.m., he saw the car parked in a plaza in Burlington. It had the two different licence plates attached to it. He saw three males exit the car and enter what he believed to be a nearby Hasty Market.

[59] A short time later, police located four young men inside a Starbucks (in the same plaza). According to Siomra, three of them were the same as the ones observed earlier by him exiting the Mazda. The fourth one, not seen exiting the Mazda, was A.M.

Alan Macewan

[60] Alan Macewan (“Macewan”) is with the Halton Police, currently seconded to the OPP’s anti-terrorism unit.

[61] On January 12, 2017, in response to Siomra locating the Mazda Protégé, Macewan attended at the plaza in Burlington. The male parties of interest were not found inside the Hasty Market.

[62] Four males were found inside Starbucks, at a rear table near the washrooms. The four males, including H.A., were arrested for possession of stolen property – the BYVB 796 licence plate on the Mazda. H.K. was searched, and a cell phone was seized from him.

Donald Beitz

[63] Donald Beitz (“Beitz”) is with the Halton Police as a firearms examiner and analyst. Without objection, he gave expert opinion evidence at trial in the field of the examination, verification and classification of firearms including BB guns and air pistols.

[64] Beitz examined the Colt handgun that was recovered from inside the RBC (remember that the robber was disarmed by the off-duty policeman) and the Winchester handgun that was seized from underneath the driver’s seat, to the left side, of the Mazda Protégé.

[65] Beitz testified that both are “firearms” as defined by the Criminal Code.

[66] Both operate with BBs and compressed air, not bullets, but neither was loaded when Beitz examined it.

[67] These types of non-conventional guns are not regulated or licensed in Canada. Anyone can buy one, including online.

Colleen O’Rourke

[68] Colleen O’Rourke (“O’Rourke”) is an experienced forensic officer with Halton Police. She seized items from the Mazda Protégé, under search warrant, on January 14, 2017.

[69] We know that the following items were found inside the Mazda:

-a blue disposable glove from inside the driver’s side door pocket;

-a red jacket on the driver’s seat;

-a patterned scarf, with tassels, underneath the driver’s seat, between the left side of the seat and the driver’s door;

-a handgun, found in the same location as the said scarf;

-two blue disposable gloves seemingly worn together with thin black gloves, from the rear driver’s side floor;

-an Adidas bag, on the rear floor, middle;

-a Paragon Security sweater, a plaid long-sleeve button shirt, a black glove, and a blue disposable glove, from the rear seat, middle;

-all from the trunk: a small wicker basket, lots of clothes including coats/jackets, a small display shelf, Backwoods cigars, flashlights, multiple cigar cutters, a small convenience store sign similar to one that was with the wicker basket that was stolen in one of the robberies, and a trench coat believed to be that worn by A.M. in the RBC attempted robbery;

-also from the trunk, a JanSport knapsack containing a Burger King receipt (matching the attendance of H.K. and H.A. observed by police on January 11, 2017), a grey toque, cash, and documents addressed to H.A.’s brother at the Winding Trail, Mississauga premises;

-multiple bags throughout the car;

-a lottery ticket, seized from the rear passenger side between the seat and the door; and

-a black balaclava with one opening for both eyes, from the rear floor, passenger side (similar to that worn by the unarmed robber at the RBC).

[70] On January 27, 2017, O’Rourke submitted some items to the Centre of Forensic Sciences (“CFS”) for analysis – the grey toque, a swab of the handgun, five blue disposable gloves, the black balaclava with the one opening for both eyes, and the patterned scarf with the tassels.

[71] Some fingerprints were lifted from the Mazda Protégé, inside and out. No identifications were made, however.

Warren Claxton

[72] Warren Claxton (”Claxton”) is a very experienced forensic scientist in the biology unit of the CFS. Without objection, he gave expert opinion evidence in the field of DNA and related areas.

[73] H.A., but none of the others arrested by the police on January 12, 2017, had his DNA sampled by the police.

[74] According to CFS testing and findings, H.A. cannot be excluded as the source of DNA Profile 1. The probability of there being a random match to someone else is very, very low – 1 in 19 quadrillion.

[75] That DNA Profile 1 was found on the grey toque seized from the Mazda Protégé (though there were at least two other contributors as well), and on one of the blue disposable gloves seized from the Mazda (though there was at least one other contributor as well), and as the single source on the patterned scarf with tassels that was recovered from the Mazda.

[76] Note, however, that only a one square centimetre cut-out from the said scarf was tested by the CFS. It is a relatively large scarf. The area that contained amylase, a substance that is often from saliva and that can contain DNA, was larger than the small piece that was tested.

[77] Claxton testified that DNA can remain on an item for a long period of time. He also stated that it was “possible” that someone spit or sneezed and thereby transferred saliva and DNA onto that small cut-out from the patterned scarf that was tested by the CFS and, essentially, was matched to H.A.

Tim Radley

[78] Tim Radley (“Radley”) has been with the Halton Police for ten years.

[79] Radley and two other officers entered the Starbucks in Burlington on January 12, 2017. Four males, including H.A., were sitting at a rear table near the washrooms. Radley had seen those four males walking in the plaza a short time earlier, when he was patrolling after hearing the information relayed by Siomra.

[80] Radley searched the nearby washroom. Inside a toilet tank, underneath the ceramic top, wrapped in paper towel, he found two Mazda car keys on one key ring.

Peter Galopoulos

[81] Peter Galopoulos (“Galopoulos”) has been with Halton Police since late 2009 and was one of two officers in charge of the Halton/Peel robberies in question.

[82] When the four males were arrested at Starbucks on January 12, 2017, their clothing was thereafter seized, and they were measured for height and weighed.

[83] H.K., described as middle eastern, stood 175 cm tall (about 5 foot 9 inches) and weighed 67.5 kilograms (about 149 pounds). A.M. – 183 cm tall (about 6 feet) and 86 kilograms (about 190 pounds), described as black. H.A. – 183 cm tall (about 6 feet) and 63.5 kilograms (about 140 pounds), described as black. And the fourth male – 183 cm tall (about 6 feet) and 54.5 kilograms (about 120 pounds), described as black.

[84] According to Galopoulos, H.A. is heavier today, by about 10-15 pounds, than he was when he was arrested in January 2017.

[85] It is noteworthy for our purposes that three of the four males arrested were the exact same height, and three of the four of them were within 30 pounds of one another.

[86] The jacket that H.A. was wearing at the time of his arrest had no hood on it.

[87] Galopoulos was the one who seized the patterned scarf from the Mazda, under search warrant. It was where indicated above - under the driver’s seat, on the left side, between the seat and the driver’s door. Galopoulos described the said scarf as being quite large, larger than normal.

[88] The cellular telephone seized from H.K. upon arrest was examined under warrant by the police. H.A. had no phone on his person when he was arrested.

[89] Because of information supplied by A.M., Galopoulos retrieved some documents from border officials that show that A.M. returned to Canada from overseas on January 11, 2017. The records do not show when he left the country or where he went. A.M. testified at trial that he went to Saudi Arabia on January 1^st, 2017.

Exhibit Evidence

[90] Many witness statements were filed on consent, without the need for oral testimony at trial.

[91] A man from New York City observed someone running near Newcastle Crescent on December 23, 2016, not far from the RBC location that was the subject of the attempted robbery and not long after the incident took place. The runner appeared to be a male, was wearing a balaclava and got into the back seat of a small black car that, according to the witness, resembled a Camry or a Valiant.

[92] H.A.’s older brother confirms that he, H.A., their other siblings and their parents all lived at Winding Trail in Mississauga in December 2016 and January 2017. The older brother had no knowledge of the Mazda Protégé. He has seen A.M. play basketball with H.A., once or twice. He also knows the fourth male that was arrested by the police on January 12, 2017, and he has seen that male playing basketball with H.A. and visiting inside their home. The older brother has never seen H.A. wear the patterned scarf in question, nor has he ever seen that scarf inside the family home, nor has he ever seen H.A. wear a grey or a blue hoodie. The older brother had been shown a still photograph, taken from store video surveillance, of the Brampton Mac’s Mart occurrence on January 7, 2017 in order to see the scarf in question.

[93] With regard to the Hasty Market robbery in Brampton on January 2, 2017, an eye witness (who was inside the store when the robbers entered but who then followed the assailants outside) stated that he saw the licence plate BYVB 796 on the front of what he believed was a black Honda that was associated with the robbers. That same eye witness described the two robbers as follows: (i) a white male, 6 foot 1 inch tall, medium build, 170 pounds, wearing a black ski mask, black hoodie and black pants, and (ii) a black male, 5 foot 9 inches tall, thin build, 140 pounds, wearing a black ski mask, black hoodie and black pants.

[94] Regarding that same robbery at the Hasty Market, the store clerk described the robber who took the money from the cash register as a black male and the one who demanded the cigars and mentioned the gun as a white male. When they left the store, the robbers got into an old rusty black Honda, in the words of the store clerk. According to the descriptors provided by the clerk, the white male was slightly taller and had a heavier build than the black male.

[95] A third civilian who witnessed the Hasty Market robbery provided quite different descriptions of the robbers. That witness was sitting in his car in the parking lot, waiting for his wife. He stated that both robbers were black males, one 5 foot 8 to 5 foot 10 inches tall and a heavy build, the other much shorter at about 5 foot 2 inches tall.

[96] That third civilian witness’ wife also spoke with the police. She described the robbers as being two black males, one medium build and the other short at 5 foot 1 to 5 foot 3 inches tall. The robbers got into an older black Honda, according to that female witness.

[97] The store employee of the Mac’s Mart in Mississauga has stated that the small sign that was seized by the police from the Mazda Protégé was with the basket of chocolate bars that was stolen from the store during the robbery on January 7, 2017.

[98] That same employee of that Mac’s Mart described the two robbers, one who opened his jacket and displayed a large gun. When they left the store, they got into a small dark car. Both robbers were brown-skinned males, one slim and about 6 feet tall and the other about the same height but with a bigger build. The bigger one had the gun.

[99] The store clerk at the Mac’s Mart in Brampton also described the two robbers: (i) a black male, maybe 5 foot 6 inches tall, slim build, pointing a gun, (ii) a male, possibly black, about the same size as the other one.

[100] Likewise, the store clerk at the 7-Eleven in Mississauga described the two robbers: (i) a black male, average build, 5 foot 11 inches tall, with a gun, (ii) a black male.

[101] Moving away now from the witness statements that were filed, there were many other exhibits filed at trial, besides of course the video surveillance footage. Only some of those other exhibits are dealt with below.

[102] It is agreed that the single lottery ticket seized by the police from the Mazda Protégé did not come from any of the robberies in question.

[103] Beitz’s two reports confirm that both the handgun left by the robber inside the RBC and the handgun seized from the Mazda Protégé are “firearms” as defined in section 2 of the Criminal Code.

[104] The two CFS reports confirm, for all practical purposes, a match between H.A.’s DNA and that found on the grey toque, one of the blue disposable gloves, and the patterned scarf with tassels, all items having been seized from the Mazda Protégé. There were, however, other contributors of DNA found on the said toque and on the said glove. And only a very small piece of the patterned scarf was tested (see the second page of Exhibit 43). Also, only H.A.’s DNA sample was supplied for comparison, not a sample from any of the other suspects.

[105] The Technological Crime Unit report for the examination of H.K.’s cell phone that was seized upon his arrest was filed, together with a transcript of the testimony of Craig Fallis (“Fallis”) of Halton Police, an expert in the forensic examination of cell phones. Fallis had testified at a prior related trial, in another Court, involving H.K. as the accused.

[106] That report (Exhibit 18) confirms that (i) images of the Mazda Protégé, with the rear licence plate BYVB 796, were on that phone, and (ii) there was a screenshot created on January 2, 2017 on that phone of the front of the Mac’s Mart store in Brampton that was robbed five days later, and (iii) there were several photographs of a young male on that phone (none of them appears to be H.A.), and (iv) there were messages on that phone, from January 4, 2017, that show enquiries being made about a gun and a Mazda Protégé (the latter H.K. appears to have been interested in selling), and (v) there was username information on that phone that clearly shows it belonged to H.K.

[107] Exhibit 25 is a Google map of the plaza in Burlington where the four males were arrested on January 12, 2017. It shows that the Mazda Protégé was parked in the same plaza as the Starbucks but quite some distance away.

[108] Exhibit 19 confirms that a female born in 1950 and living in Mississauga, relatively close to where H.K. lived at the time, was the registered owner of the licence plate ADWT 734, which plate was ultimately found on the front of the Mazda Protégé.

[109] Exhibit 20 confirms H.A.’s ownership of the Mazda Protégé, no plate attached, and his Winding Trail, Mississauga address.

[110] Exhibit 16 confirms the theft of the licence plate BYVB 796. In fact, from a vehicle in Mississauga, in December 2016, both plates were stolen with that number on them.

[111] Exhibit 9 is a series of good quality still colour photographs from the RBC attempted robbery. In those photographs, I can clearly see and recognize McDonald. I can clearly see and recognize A.M. Regarding the second robber with the bag, because of the disguise, I can only say that the person appears to be male and relatively slim.

[112] Exhibit 21 includes police photographs of H.A. and H.K. From those, I can clearly see that H.K. is considerably lighter skinned than H.A.

[113] Exhibit 49 confirms that A.M. entered Canada at Pearson International Airport late in the evening on January 11, 2017. Where he went and when, the documents do not reveal.

[114] Finally, a series of documents were filed which show that the locations of the five robberies/attempted robberies in Oakville, Brampton and Mississauga were all within about a twenty-minute drive of one another, maximum, approximately.

2. The Crown’s Similar Act Application

General Legal Principles Applicable to Similar Act Evidence

[115] In R. v. Durant, 2019 ONCA 74, [2019] O.J. No. 556, very recently decided by the Court of Appeal for Ontario, which was a case where the accused had been charged with two counts of first degree murder and the Crown was successful at trial in having the evidence applied across the two counts, the Court reminded us of the basic legal principles that are germane to this Court’s decision.

[116] Those principles include the following:

-evidence of similar acts is a kind of bad character evidence (paragraph 80);

-evidence of similar acts, even across counts, is presumptively inadmissible because its probative value is often slight and overwhelmed by its more potent prejudicial effect (paragraphs 81-82);

-the onus to rebut the presumption against the admissibility of similar act evidence rests with its proponent, the Crown, on a balance of probabilities (paragraph 97);

-the Crown must demonstrate a sufficient similarity in the manner in which each offence was committed to render coincidence improbable (paragraph 98);

-where the relevant issue is identity, the degree of similarity required between the acts is often described as “striking” – “strikingly similar acts” (paragraph 98);

-the similarity between the acts must be so unique that, viewed objectively and with common sense, it cannot be explained on the basis of mere coincidence (paragraph 99); and

-in assessing the similarity between the acts, the trial judge should consider only the manner in which they were committed and not evidence linking the accused to those acts, although there is no bright line between those two things in that there are times when the accused’s tie to the acts is inextricably woven with the circumstances of the conduct (the acts) itself (paragraphs 101-102).

Similar Act Evidence Relevant to the Issue of Identity

[117] Although already alluded to above, it is worth repeating the test for the admission of similar act evidence where the issue that the evidence goes to is the identity of the person who committed the crime.

[118] In that regard, set out below are paragraphs 50 through 53 of the Court of Appeal for Ontario’s decision in R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302, which, interestingly, was a case not unlike ours in many respects.

[50] Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp at para. 43.

[51] In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45; Handy at para. 81.

[52] The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. This phase of the inquiry into admissibility may be characterized as the “similarity” issue.

[53] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place;

ii. similarity in detail and circumstances;

iii. number of occurrences;

iv. any distinctive feature(s) unifying the various incidents;

v. intervening events; and

vi. any other factor that tends to support or rebut the underlying unity of the similar acts.

Handy at para. 82; Perrier at para. 22.

Similar Act Evidence, Relevant to the Issue of Identity, in the Context of Group or Gang Activity

[119] In cases involving a group or gang that is alleged to have committed multiple offences, all similar in nature, and the issue to be decided is whether the accused was the, or one of the, culprits involved in one or more of those crimes, the circumstances are such that legal error on the part of the gatekeeper, the trial judge, is tempting.

[120] The Supreme Court of Canada, in R. v. Perrier, [2004] 3 S.C.J. No. 54, put it this way, at paragraph 35 of its decision.

35 The circumstances of this case can lead to erroneously relying on what might appear a compelling syllogism:

All the offences were carried out by X gang.

A was a member of X gang.

Therefore A was a party to all the offences.

This syllogism is incomplete. It would apply only if the Crown could prove that membership in the gang was permanent and that all members participated in all the home invasions charged.

[121] Thus, the Supreme Court of Canada provided this direction to trial judges, at paragraphs 32-34 of its decision.

32 Where evidence of similar offences committed by a gang is being introduced not just to identify the gang itself but to identify a particular member, a sufficient connection between the individual and the crimes of the group must be established. This can be done in two ways:

(1) If the Crown can prove that group membership never changed, that the gang always remained intact and never committed the criminal acts unless all were present, and that the accused was a member of the group, and present, at the relevant time, that will be sufficient to connect the individual to the crimes of the group, and the evidence will usually have sufficient probative value to be admitted as similar fact.

(2) Where membership in the group is not constant, as in this case, then an additional “link” or “connection” must be made in order to use evidence of group activity against a particular accused. This additional requirement will be satisfied where (a) the accused’s role was sufficiently distinctive that no other member of the group or person could have performed it; thus he necessarily must have participated in all offences; or (b) there is independent evidence linking the accused to each crime. Without this second stage of analysis, there is a risk that the net will be cast too broadly and members of a group who participated in some crimes will be improperly convicted of other crimes by virtue of their association with the group alone.

33 Group similar fact evidence can be used to identify groups, but not to assign liability to particular members. Identifying the group will facilitate prosecution where it can be shown that membership in the group was constant and the individual members can be identified. Identifying the group will not likely facilitate prosecution where membership in the group was not constant, unless the role played by a particular accused was sufficiently distinct that he can be identified as having been involved in all the offences.

34 Where, as in this appeal, membership in the group varied, and the roles played by a particular accused were not distinctive, similar fact evidence may only be introduced against this accused once he has been linked to each individual crime. By that point, the utility of the inference may have dissipated, but any other approach generates too much potential prejudice and invites wrongful convictions.

[122] In paragraph 32(2)(b) of its decision, what does the Supreme Court of Canada mean when it says “independent evidence linking the accused to each crime”?

[123] Here, I slavishly adopt the very helpful and thorough analysis undertaken by Justice Fairburn, then of the Superior Court of Justice, at paragraphs 43 through 72 of Her Honour’s decision in R. v. Kanagasivam, 2016 ONSC 2548, [2016] O.J. No. 4568 (the reader is encouraged, in particular, to focus on paragraph 72, quoted below, although the entire analysis on this question is set out).

[43] While similar fact evidence of group activities may be admissible to identify a group responsible for crimes, it can only be used to identify an individual acting within the group when that individual can be specifically linked to the conduct in question. As noted in Perrier, just because an accused acts with a group on one occasion, does not mean he acts with the group on another occasion. As such, finding evidence that links the accused to the similar acts is “particularly important” in the group context: Perrier, at para. 25.

[44] Links to individuals acting within groups can be made in a few different ways. In circumstances where the constitution of the group remains static, and the group does not act without all members present and participating, then the signature of the group can become the signature of the accused: Perrier, at para. 25.

[45] In a rotating group environment, there is a risk that simply by virtue of membership in the group, the accused will become implicated in crimes he did not commit. To assuage this concern, Perrier instructs that a specific evidentiary connection must be drawn between the accused and the similar acts of the group. This link can be made in one of two ways: (a) through evidence that the accused played a distinctive role in the crimes; or (b) by “other independent evidence”: Perrier, at para. 25.

[46] There is no suggestion in Perrier, and there is no suggestion in this case, that any of the accused played distinctive roles. As such, for purposes of this case, the link between the accused and the group’s similar acts must be made through independent evidence. While the term “independent evidence” is not defined within Perrier, I take this to mean evidence of something other than simply membership in the group. After all, if simple membership in the group could be considered independent evidence linking the individual to the group’s crimes, then the matter would become circular, as the similar crimes would then become admissible on the basis of group membership. Such an approach would be antithetical to the very danger that Perrier points toward, allowing simple membership in a group to become a gateway for the admission of group similar fact evidence to establish the identity of an individual.

[47] The question is how much independent evidence linking an accused to a group act is required as a prerequisite to admissibility in a rotating group environment? As above, the defence argue that the evidence must verge on conclusively establishing the accused’s guilt in respect to an act before it will support admission. For the reasons that follow, I find that the some evidence threshold from Sweitzer, and adopted in Arp, is the correct test for admissibility.

[48] I start with the observation that there is nothing in Perrier that explicitly suggests a higher threshold test for linking an accused to the similar acts in a rotating group context. Indeed, in discussing the need for linkage evidence, Major J. specifically adverts to and, in fact, quotes fromSweitzer. He sets out the passage containing the requirement for “some evidence” of linkage as a prerequisite to admissibility and the threshold is referred to as a “not particularly high” one: Perrier, at paras. 23-24.

[49] Notably absent from the court’s discussion of linkage evidence is any suggestion that the Sweitzer threshold falls short of the task at hand in the group context. The court’s silence on the issue speaks loudly. If the court had intended to impose a more robust test, particularly after reviewing the “some evidence” threshold from Sweitzer, the court would have explicitly done so.

[50] As well, I see no compelling rationale for why a higher linkage test should be imposed in this context. Perrier acts as an important reminder that individuals, and not groups, are before the court being prosecuted. As such, in a situation like this case, when the issue is identity, it is the individual who must be linked to the conduct. While Perrier serves as a critical reminder to trial judges on this point, the reminder does not carry with it a higher threshold test and there is no reason why it should. Whether an individual acts alone or in a group, it is the link between him and the act that is important.[8] I can see no compelling reason why the individual needs to be more heavily linked to the acts simply because he is alleged to have acted with others.

[51] The next reason for rejecting the suggestion of a higher threshold test rests in the court’s specific consideration and rejection of a conclusiveness test in Handy, decided just two years prior to Perrier. In Handy, the court was asked to impose a “conclusiveness” test, meaning that the probative value of the evidence had to be so high “as to be virtually conclusive of guilt” before admission could be granted: Handy, at paras. 94-97. While engaging the term in a slightly different context than the defence do in this application, the comments of the court in Handy are nonetheless instructive. As Binnie J. noted, this type of threshold test would take “the trial judge’s ‘gatekeeper’ function too far into the domain of the trier of fact”: Handy, at para. 97. I find that this is equally true in the group crime context.

[52] Moreover, having decided this issue in 2002, the court was no stranger to the potential for fluctuating tests for the admission of similar fact evidence, including the concept of a conclusiveness test, or even a near conclusiveness test. Despite its familiarity with the potential for a more vigorous test as a prerequisite to admission, the court did not articulate one in Perrier. Again, the court’s silence on the issue speaks loudly. If the court had intended to depart from the timeworn Sweitzer some evidence test, and replace it with a near conclusiveness test, the court would have said it was doing that.

[53] I find that having quoted from Sweitzer and discussed the some evidence threshold in Perrier, and having rejected a conclusiveness test inHandy, Perrier must be read as imposing the pre-existing Sweitzer threshold for admission. While trial judges are reminded to look for “independent evidence” linking the accused to the group’s crimes, there need be no more than some independent evidence in this regard. By reinforcing this standard, the gatekeeper’s role is sure not to enter the domain of the trier of fact.

[54] As for the suggestion that certain comments made by Major J. reveal that he implicitly imposed a linkage test exceeding the some evidence requirement, I do not agree. When these comments are considered in their correct context, with respect, they do not support the proposition put forward.

[55] The comments relied upon include the court’s suggestion that “[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant” unless the role said to be played by an accused is distinct: Perrier, at para. 33. The defence also rely upon the following comment:

Where, as in this appeal, membership in the group varied, and the roles played by a particular accused were not distinctive, similar fact evidence may only be introduced against this accused once he has been linked to each individual crime. By that point, the utility of the inference may have dissipated, but any other approach generates too much potential prejudice and invites wrongful convictions. (See Perrier,at para. 34)

[56] Importantly, these comments do not appear in the part of the judgment dealing with principles of “Admissibility of Similar Fact Evidence for the Purpose of Identification”. Rather, they are located within the part of the judgment dealing with the “Application of Similar Fact Evidence to Crimes Committed by Groups”.

[57] In this latter part of the judgment, the court provides guidance in terms of how the “trier of fact” should go about the task of “using” similar fact evidence in a group crime context. The court discusses a two-stage test. At the “first stage”, where the group is being identified, the Arp test will be used to determine whether “one group activity can be used to identify the group responsible for another”: Perrier, at para. 31. Assuming the first stage is passed, the “trier of fact should be permitted to draw an inference that the same gang committed the acts”: Perrier, at para. 31.

[58] Where the evidence is to be used to identify an individual accused, and not just the group, a “second step” is required: “[o]nce the trier of facthas determined that the same group was involved, a second step or assessment is needed in order to determine if the evidence has enough probative value with regard to the individual accused to outweigh the prejudice it will cause [emphasis added]”: Perrier, at para. 31. In a rotating group environment, where no group member is said to play a distinctive role, this second step requires that the trier of fact find a “sufficient connection between the individual and the crimes of the group” by locating “independent evidence linking the accused to each crime”: Perrier, at para. 32.

[59] The two prerequisite approach in Perrier is different than that engaged by the trier of fact in a non-group environment. Indeed, in Arp, the court was asked to impose a requirement on the trier of fact that the accused be found guilty of one act beyond a reasonable doubt before that act could be used as similar fact evidence in relation to another act. This was referred to as an “anchor” approach to similar fact evidence. In rejecting this requirement, Cory J. observed that while a reasonable doubt may exist in relation to each similar act in isolation, two or more similar acts may support one another to arrive upon proof beyond a reasonable doubt in relation to each of the acts: Arp, at para. 66. It was ultimately determined that the trier of fact should be instructed that “they may find from the evidence … that the manner of the commission of the offences is so similar that it is likely they were committed by the same person”. If the trier of fact arrives upon this conclusion, “then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts”: Arp, at para. 80. Notably absent from the recommended instruction is any reference to linkage evidence.[9]

[60] While I agree with the defence that Perrier injects something new into the rotating group similar fact context, it largely rests in the second safety valve imposed on the trier of fact when considering group similar fact evidence; the need to first find independent evidence linking the accused to the acts before the evidence can be used to identify the accused (as distinct from the group).

[61] As before, the defence rely upon certain passages in Perrier to suggest that a higher threshold test than the one set out in Sweitzer has been imposed as part of the admissibility test: Perrier, at paras. 33-34. Importantly, the passages relied upon by the defence follow upon the court’s discussion of the two-step test to be conducted by the trier of fact before rotating gang similar fact evidence can be used to identify an individual. The court’s comments must be read in light of these preceding passages.

[62] I read the comments in Perrier, set out at para. 55 of this ruling, as the court making practical observations arising from the two-step test imposed on the trier of fact. The court’s comment that “[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant”, is a different way of stating the usage rule. The reality is that identifying the group will not typically facilitate prosecution unless the trier of fact also finds independent evidence linking the accused to the group’s acts. Moreover, once the linkage evidence if found, “the utility of the inference may have dissipated” because, by the time that the trier of fact has linked the accused to each of the acts, the trier of fact will already be some way down the path to identifying the accused as a participant in those acts. I do not read these comments as support for the proposition thatPerrier imposed a higher or more robust admissibility test.

[63] As for the defence argument that the application of the law to the facts in Perrier supports the view that the court implicitly imposed a higher threshold test for linkage evidence, I do not agree.

[64] The three home invasion offences that formed the subject of the similar fact evidence in Perrier were committed on December 15, 1997, January 2 and 14, 1998. Mr. Perrier was convicted of the January 14^th offence prior to his trial resulting in the appeal. There was strong evidence linking him to that crime.

[65] As for the January 2^nd offence, some of the stolen property was located in an apartment in which Perrier and two other men lived. The other men were also alleged to be involved in the robberies. The stolen property was found in a room containing Perrier and another man’s identification. Justice Major considered the non-exclusive use of the apartment “important”.

[66] The other independent evidence linking Perrier to the January 2 and December 15 crimes came from a witness named Wang. Mr. Wang had been convicted in relation to two of the home invasions, been sentenced to a long period of custody, and had been placed in the witness protection program. He had also been promised assistance with the parole and immigration authorities. On any account, Wang was a concerning Vetrovecwitness.[10]

[67] The only other evidence in respect to Perrier were call records that showed Wang and Perrier’s phones in communication before and after each of the incidents. There was no evidence as to where the phones were located at the time or what was said. As well, there was one intercepted phone call between Perrier and Wang that Ryan J.A., in the court below, said could be interpreted as expressing a concern about a “snitch”.

[68] Justice Major described the evidence available to link Perrier to the crimes as follows:

Aside from the testimony of the accomplice (Mr. Wang), the only evidence against the appellant was that related to the Fraserview incident, for which he had previously been convicted, the telephone calls to the accomplice and stolen property from the Osler Street incident found in an apartment he shared with two other alleged perpetrators of these crimes. (Perrier, at para. 39)

[69] The fact that Mr. Perrier was a member of the group during the January 14^th incident (the one for which he was convicted), could not be used to suggest that he acted as a member of the group on other occasions: Perrier, at para. 40. He had to be linked by independent evidence to each of the similar acts.

[70] The “independent evidence” linking him to the December 15 and January 2^nd acts was insufficient to achieve this purpose. In arriving at this conclusion, it appears that the court heavily discounted, if not altogether ignored the Vetrovec evidence for which there was little to no corroboration. Given the known and obvious dangers associated with Vetrovec evidence, it is unsurprising that the court concluded as it did. To rely upon uncorroborated Vetrovec evidence as the means by which to link Perrier to the group acts, would have the effect of permitting dangerous evidence to support the admission of propensity evidence. This is counterintuitive.

[71] Removing Wang from the equation, the court was left with some phone contact, the non-exclusive possession of stolen property, and a potential “snitch” call. Other than the final home invasion for which Perrier had already been convicted, there was a dearth of independent evidence linking him to the other two crimes. As such, I do not accept the submission that the application of the law to the facts in Perrier reveals the imposition of a near conclusiveness test. Indeed, the facts in Perrier could be easily said to fall well short of the requirement of some evidence of linkage.

[72] In the end, and for all of the reasons above, I find that the admissibility test for linking an accused to the similar acts of a rotating group is “some evidence.” The evidence must be comprised of something other than simple membership in the group.

The Law on Circumstantial Evidence

[124] In assessing the test outlined by the Supreme Court of Canada at paragraph 32(2)(b) of its decision in Perrier, supra, and then again (even more so) in assessing the merits of the charges themselves, especially in a case like ours where the offences charged constitute a series of robberies committed by persons whose faces cannot be observed, circumstantial evidence is necessarily relied upon by the Crown.

[125] It is important that trial judges recall the law, not so new anymore, on what inferences can and cannot be reasonably drawn from circumstantial evidence. In that vein, set out below are paragraphs 35 through 43 of the decision of the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[39] I have found two particularly useful statements of this principle.

[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]

[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

[43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.

The Law as Applied to the Facts of this Case

[126] I have elected to borrow the framework used by Justice Fairburn, as Her Honour then was, in Part G of the decision in Kanagasivam, supra.

[127] Hence, I ask myself, first, “is there a sufficiently high degree of similarity between the acts to be sure on a balance of probabilities that the same group likely committed the acts in question” (paragraph 76)?

[128] If the answer to that question is no, then that is the end of the analysis on the Crown’s similar act application, and the application would have to be dismissed. If the answer to that question is yes, then I will proceed to answer the next question – “is there evidence linking the accused to the crimes with which [he is] charged (paragraph 153)?

[129] Let us review the criteria suggested by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, recognizing that those criteria are not exhaustive, and appreciating as well that similar act applications are not to be decided on the basis of a score sheet that has checkmarks on one side of the equation and the other.

[130] All of the robberies/attempted robberies are proximate to one another, in time and place. The first one occurred on December 23, 2016, and the last one about two weeks later on January 7, 2017. They all occurred within about a twenty-minute drive of one another, in neighbouring regions, Peel and Halton. This factor favours the Crown’s position.

[131] There were five robberies in total. That is a significant number, although I have no evidence as to how commonplace or not these types of robberies are in Halton and/or Peel. This factor is relatively neutral.

[132] The factor of intervening events is not something of concern here.

[133] Thus, the resolution of the first question really boils down to two things: (i) the similarity in detail and circumstances surrounding or relating to the various robberies, and (ii) any distinctive feature(s) that may serve to unify the incidents.

[134] Having watched all of the video footage several times each, looked at in conjunction with the evidence supplied by the store clerks, there is no question that the three robberies that occurred on January 7, 2017 were very, very similar. Strikingly so.

[135] Two masked robbers each time. One robber with a gun, each time. The robber with the gun appears to be left-handed, each time. The robber without the gun, wearing a bright blue hoodie during at least two of the three occurrences (the Mac’s Mart in Brampton and the 7-Eleven) and wearing blue gloves under black gloves in all three occurrences, appears to be relatively more hyper and more excitable than the gunman, each time.

[136] To be frank, by their clothing (from head to toe), their sizes, and their actions inside the stores, the two robbers look identical in each of the three incidents that took place on January 7, 2017.

[137] Finally, in two of the three incidents, the robbers took money and Backwoods cigars.

[138] Yes, one who tries hard enough can always find something a little bit different among the incidents, and that is true here as well. For example, at the 7-Eleven store, the armed robber entered first, while he entered second in the other two incidents that occurred on January 7^th. A difference like that does not change my opinion that the three occurrences on January 7^th are strikingly similar in terms of the manner of the acts themselves.

[139] As for a distinctive feature that serves to unify those three occurrences, we can look past things like them all having occurred on the same date, and very close in time to one another, and in the same region. We have something much more valuable than that – a relatively calm, left-handed gunman whose responsibility it appears to be something besides money from the cash, like smokes. That is present in all three occurrences on January 7^th.

[140] In comparison, the RBC incident is an outlier. It is definitely not the same gunman. Not the same face disguise on the unarmed robber. Not the same clothing on the unarmed robber. Not the same behaviour by the unarmed robber in confronting and being rather frantic with an employee at the counter – that behaviour is completely absent in the RBC occurrence. Not the same method of transporting whatever is to be stolen.

[141] The Hasty Market incident on January 2, 2017 is not quite as similar to any of the three occurrences on January 7^th as compared to those three incidents resembling one another, however, the Hasty Market robbery remains, in my view, strikingly similar to those robberies that took place five days later.

[142] The Hasty Market occurrence involved two masked robbers. One robber with (or who mentioned that he had) a gun. The robber with the gun appears interested in cigars, with the other relatively more excited accomplice being responsible for collecting the money from the cash register. Money and Backwoods cigars were stolen. Similar sizes and actions of the two robbers as compared to the occurrences on January 7^th.

[143] In conclusion, I answer the first enquiry as follows: there is a sufficiently high degree of similarity between the acts, except the RBC occurrence, to be sure on a balance of probabilities that the same group likely committed them.

[144] The RBC incident is an exception. I am not satisfied that the same group that committed the January 2017 robberies likely committed the December 23, 2016 attempted robbery.

[145] As such, the evidence related to the RBC incident (counts 2 through 4) will not be considered by this Court in determining whether H.A. is guilty of any of counts 5 through 12, and vice-versa.

[146] In making that decision, I am fully aware that A.M., the gunman at the RBC, was arrested with H.A. and the others at the Starbucks in Burlington on January 12, 2017. That is some evidence that A.M. was a part of a group or gang of robbers, and if he was, and if that group or gang committed the other four invasions as well, then one could conclude that the same group or gang committed the RBC attempted robbery.

[147] The problem with that approach, in my view, is that it strays too far away from an examination of the similarity between the acts themselves. I just do not see the RBC event as being all that similar, never mind strikingly similar, to the four occurrences that took place in January 2017.

[148] In making my decision, I am also cognizant of things that the Crown says links the RBC incident with the other four robberies, including but not limited to, in the main, the Mazda Protégé. I do not accept that argument, however.

[149] With respect to the Mazda specifically, I agree with Mr. Herscovitch that it would be unsafe to find that the said vehicle was the one waiting on Newcastle Crescent on December 23, 2016. No identifiable licence plates. No view of the driver’s side of the car, in whole or in part. Very little to be seen of the front and rear of the car. Cameras placed quite some distance away from the car. A partially obstructed camera view for a portion of the video, which entire footage is relatively brief in any event. An ordinary, very common-looking small, dark sedan. Evidence from Judson that it could have been a Toyota. Evidence from two eye witnesses, neither of whom describe it as a Mazda.

[150] I am simply unable to make a reliable finding of fact that the car on Newcastle Crescent was the Mazda Protégé that was ultimately searched by the police.

[151] Now, on to the second query - is there evidence linking H.A. to the crimes described in counts 5 through 12?

[152] I am satisfied that the “some independent evidence” (my words) test set out by the Supreme Court of Canada at paragraph 32(2)(b) in Perrier, supra, as explained by the Court in Kanagasivam, supra, is met in our case.

[153] It is clear that the Crown must rely upon paragraph 32(2)(b) in Perrier, supra because this group or gang of robbers was definitely not static; we know that because A.M., a part of the group on the Crown’s theory of the case, was only involved in the RBC incident. Thus, paragraph 32(1) in Perrier, supra does not apply.

[154] Also, there is no suggestion by the Crown that the role of the slimmer robber in the various incidents was so distinctive that no other member of the group or gang could have performed it, and therefore, paragraph 32(2)(a) in Perrier, supra does not apply either.

[155] But, in my view, paragraph 32(2)(b) in Perrier, supra does apply and has been met in our case.

[156] There is no need to conduct an exhaustive review of all of the circumstantial evidence at this stage of the analysis. That will come when we discuss the merits of the charges themselves. What is important here is to identify cogent evidence, independent from the alleged fact that H.A. is a member of the group or gang of robbers, that links H.A. to the crimes.

[157] From that independent linkage evidence there may be more than one reasonable inference that could be drawn, and not necessarily from proven facts, but at this stage of the analysis, I would say that unless the inculpatory inference is especially weak a fulsome consideration of other reasonable inferences and the application of the Villaroman, supra principles ought to await the next section of these Reasons for Judgment, that dealing with the merits of the charges.

[158] The independent linkage evidence consists of the following. Collectively, even without considering anything else, they are sufficient to allow the similar act application.

[159] First, the scarf seized by the police. It was found inside the Mazda Protégé, which was registered to H.A. The accused had been seen inside that car the day before the arrest. The scarf, we can say for all intents and purposes, has H.A.’s DNA on it. That scarf looks very similar to the one worn by the unarmed robber at the Mac’s Marts in Mississauga and Brampton.

[160] Second, the blue disposable glove, seized from the Mazda, that, we can say in practical terms, tested positive for H.A.’s DNA. One can clearly see that the unarmed robber at both Mac’s Marts and at the 7-Eleven is wearing blue disposable gloves underneath black gloves.

[161] Third, although we cannot clearly discern whether the unarmed robber is wearing that same scarf at the 7-Eleven, and the store clerk’s statement is not helpful in that regard, we can see that he is wearing the same clothing otherwise – bright blue hoodie, long dark coat, and lighter pants. Also, remember that the 7-Eleven robbery was committed in very close proximity to the other two robberies committed on the same date, January 7, 2017, both in terms of time of day and location.

[162] Fourth, the Adidas bag seized by the police from the Mazda. That was found inside a car registered to H.A., that he was seen inside on January 11, 2017, and that he very likely travelled in to get to the Starbucks plaza in Burlington on January 12, 2017. It was in plain view on the floor, middle area, of the rear of the Mazda. That bag looks very similar to the bag used by the unarmed robber at the Hasty Market. The shape, size, colour, zippers, and logo are all, it appears to this Court, the same.

[163] Fifth and finally, the unarmed robber at the Hasty Market appears to be wearing a grey toque. That is visible underneath the hood. A grey toque was seized from the Mazda Protégé, and that toque, we can say in practical terms, tested positive for H.A.’s DNA.

[164] The above constitutes sufficient independent evidence that links H.A. to the Hasty Market incident (counts 5 and 6), and to the Mac’s Mart incident in Brampton (counts 7 and 8), and to the Mac’s Mart occurrence in Mississauga (counts 9 and 10), and to the 7-Eleven occurrence in Mississauga (counts 11 and 12).

[165] In conclusion, the Crown’s similar act application is granted in part. The evidence will be applied across counts 5 through 12 on the Indictment. As mentioned previously, the charges with respect to the RBC incident are to be assessed separately.

3. Findings on the Merits of the Charges

[166] Looking at the circumstantial evidence in its totality, as I must do, I am not sure, given the result of the Crown’s similar act application, that H.A. was the unarmed robber who participated in the RBC occurrence on December 23, 2016. Hence, I acquit him on counts 2 through 4.

[167] This is not a surprising result, as Crown counsel, quite fairly, implied in her closing submissions that it would be difficult to sustain convictions on those counts without the use of evidence related to the other robberies.

[168] Having watched the video footage several times, and having looked closely at the still photographs, in conjunction with the witness evidence, I cannot say that the unarmed robber at the RBC appears to be H.A., or even someone who looks a lot like H.A..

[169] A.M.’s evidence is useless on the identity of the unarmed robber.

[170] The DNA evidence linking H.A. to the RBC occurrence is weak – limited to the blue disposable glove that was seized from the Mazda Protégé by the police weeks later. No distinctive scarf. No grey toque.

[171] The other circumstantial evidence, including but not limited to the getaway car on Newcastle Crescent and the Adidas bag, is also, even collectively and in conjunction with the above, fairly weak. I cannot safely find as a fact that the getaway car was the Mazda Protégé, for reasons outlined above. I would likely venture out to conclude that the Adidas bag was the same one seized from the Mazda, however, that goes little distance to saying that the person with that bag at the RBC was H.A..

[172] Again, on the charges involving the RBC occurrence, I find H.A. not guilty.

[173] On count 1, possession of stolen property (the licence plate), both counsel, understandably, spent very little time on that charge in their closing submissions.

[174] On count 1, I find H.A. guilty.

[175] Simply put, there is no doubt that the licence plate that was on the Mazda Protégé on January 12, 2017 was stolen not that long beforehand, and that the car was registered to H.A., and that H.A. was inside the car, at a minimum, on January 11^th and on January 12^th, and that a licence plate is not something that was hidden from his view.

[176] Joint possession, which requires knowledge and control, has been established.

[177] In all of the circumstances, I am satisfied that the Crown has proven beyond a reasonable doubt that H.A. either had actual knowledge that the licence plate was stolen or that he was wilfully blind to that fact.

[178] On counts 5 through 12, it is not automatic that H.A. should be found guilty of all of those charges just because the Crown’s similar act application has been disposed of the way in which it has been.

[179] In my view, notwithstanding the disposition of the Crown’s similar act application, it would be unsafe to find H.A. guilty of the offences relating to the Hasty Market incident. I find him not guilty on counts 5 and 6.

[180] Let me explain. This gang or group of robbers was not static. Different robbers participated on different days, at least with respect to A.M. and the RBC occurrence. We know from the police surveillance evidence that the Mazda Protégé was like a taxi in that it picked up and dropped off several persons on just one day, January 11, 2017. We also know from the search evidence that the said car was just full of bags and clothing. And we know that the group that was arrested by the police on January 12^th included a fourth young male – not H.A., and not H.K., and not A.M., who may have been involved in the group’s criminal activity.

[181] In light of the direction provided by the Supreme Court of Canada in Villaroman, supra, it is reasonable to infer from the above that the RBC incident is not the only one where the composition of the robbers changed.

[182] The Hasty Market robbery occurred five days before the others that followed. Standing alone, it does not present with the same piece of evidence that is most powerful and which is present on January 7^th, namely, the patterned scarf that tested positive, single source, with H.A.’s DNA. And the grey toque worn by the unarmed robber is not distinctive and, therefore, it is difficult to link it with that seized by the police from the Mazda Protégé. Further, the Adidas bag can be safely linked to the group and to the car, but there remains a reasonable inference that could be drawn that the unarmed robber in possession of that bag was someone other than H.A.

[183] Of course, the phrase “standing alone”, used above, is a misnomer because this Court must consider the evidence on counts 7 through 12 in considering whether H.A. should be found guilty of the offences relating to the Hasty Market. That is, after all, the whole purpose of the Crown’s similar act application.

[184] Still, my reasonable doubt remains. I am highly suspicious, but I am just not sure whether H.A. was the unarmed robber at the Hasty Market.

[185] It is the constellation of all of the admissible evidence that must be considered, and I agree that a very reasonable inference would be to say that the unarmed robber in the three occurrences on January 7^th was the same unarmed robber on January 2^nd. I also think, however, that it could be reasonably inferred that the unarmed robber on January 2^nd was another member of this non-static group or gang of robbers.

[186] Remember, the four males arrested by the police on January 12, 2017 were, except for A.M., all of relatively similar size. Remember, as well, that there could have reasonably been more members of this group or gang of robbers besides those who were arrested by the police on January 12^th. And remember, too, that the Hasty Market occurrence took place several days before those on January 7^th.

[187] In the end, I have a reasonable doubt as to whether H.A. was one of the robbers at the Hasty Market, and thus, he is acquitted on counts 5 and 6.

[188] My conclusion is different on counts 7 through 12. I have no doubt that H.A. was the unarmed robber in those three occurrences at the Mac’s Marts and the 7-Eleven, and thus, I find him guilty on those six charges.

[189] Given the Crown’s concession, however, on counts 8, 10 and 12, the firearm charges, H.A. is found guilty on the basis of the weapon being an imitation firearm. Section 21(1)(b) or section 21(2) of the Criminal Code is the basis for H.A.’s guilt on those three counts, and that basis of liability, if identity is proven, is not disputed by the Defence.

[190] Counts 7 through 12 all occurred on the exact same date, within a very short period of time, and all in Peel (Brampton and Mississauga).

[191] The chance of this group or gang of robbers having changed its composition during those three occurrences is, in my view, significantly reduced.

[192] H.A.’s DNA was found on the patterned scarf that was seized from the Mazda Protégé. Quite reasonably, the Defence takes no serious issue with the fact that the scarf that was seized from the car is distinctive and is the one that was worn by the unarmed robber on January 7^th, at least at the two Mac’s Marts.

[193] The clothing worn by the one robber at the 7-Eleven makes it clear that it is the same unarmed person who participated in the two Mac’s Mart robberies.

[194] Thus, it is certainly, in my view, the same unarmed robber in all three incidents that occurred on January 7^th.

[195] The Defence is correct that it could be that H.A.’s DNA got onto the scarf because he wore it innocently during the winter, or he sneezed on it inside the car, or he spit on it inside the car, or in some other way.

[196] The Defence is also correct that it could be that someone else’s DNA is also on that scarf but just was not tested for by the CFS.

[197] The problem, though, is that the Defence argument takes the scarf in a vacuum. It is not just the scarf that must be considered in assessing the existence of other reasonable hypotheses that could be made, as per Villaroman, supra.

[198] Is it reasonable to infer that someone else wore that scarf and blue disposable gloves underneath black gloves and robbed the three places on January 7^th, in light of not only H.A.’s DNA on the scarf and on a similar blue disposable glove seized from the Mazda Protégé, but also in light of what else was found inside that car that was registered to and travelled in by H.A., and in light of H.A.’s height and weight not appearing to be inconsistent with that of the unarmed robber on January 7^th, and in light of the stolen licence plates that were on H.A.’s car being visible on exterior surveillance footage at the Mac’s Mart in Brampton, and, in the end, on the whole of the admissible evidence at trial?

[199] The answer is no. There is only one reasonable inference that can safely be drawn; there is only one reasonable hypothesis that can be made. That conclusion is that H.A. was the unarmed robber in the three incidents that occurred on January 7, 2017, and I so find.

[200] Without wanting to oversimplify the analysis, to explain succinctly why the verdicts are not all the same, what most significantly separates (a) the three incidents described in counts 7 through 12 from (b) the RBC occurrence and the Hasty Market occurrence is that (i) counts 7 through 12 involve the distinctive scarf that is matched to H.A. and (ii) the remarkably close proximity in time and location of the incidents that took place on January 7^th.

[201] The disposition of the Crown’s similar act application cannot assist the prosecution with regard to the RBC incident.

[202] The ruling on the similar act application can and does assist the Crown with regard to the Hasty Market occurrence, but there is still no powerful scarf evidence, and the five-day separation of that occurrence from the subsequent ones remains, making it more reasonable to infer that the composition of this non-static group or gang of robbers changed between January 2^nd and January 7^th.

III. Conclusion

[203] For all of these reasons, H.A. is found guilty on counts 1, 7, 8, 9, 10, 11, and 12, subject to the clarification noted above regarding counts 8, 10 and 12.

[204] On that clarification, regarding the robbery with a firearm charges stemming from January 7, 2017, those being counts 8, 10, and 12, the Indictment ought not to have read section 344(b), but rather it should have read 344(1)(a.1) or, at a minimum, 344(1)(b).

[205] In any event, the convictions for robbery with an imitation firearm shall be registered under section 344(1)(b), the charging section being 343(d).

[206] H.A. is found not guilty on counts 2, 3, 4, 5, and 6.

[207] I thank both counsel, Ms. Stevenson for the Crown and Mr. Herscovitch for the Defence, for conducting an extremely well-run trial.

Explanatory note: although H.A. is an adult, his initials are used throughout these Reasons, and initials are used for the other male suspects as well, because some of them were youths at the material times.

Conlan J.

Released: June 28, 2019

COURT FILE NO.: 1/18

DATE: 2019 06 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.A.

REASONS FOR JUDGMENT

Conlan J.

Released: June 28, 2019