DELIVERED ORALLY AND MADE AN EXHIBIT
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Joshua Nelson Erdodi
Defendant
Jayme Lesperance, for the Crown
Maria Carroccia, for the Defendant
HEARD: June 6, 7, 10, 11, 12, 13, 14, 2019 and September 17, 2019
REASONS FOR JUDGMENT
HEBNER J.
1Mr. Erdodi has been charged on a six-count indictment arising out of an incident that took place during the early morning hours of January 4, 2017 at the Town of Essex, Ontario. Specifically, Mr. Erdodi is alleged to have committed the following offences:
That he robbed Gary White of the sum of $2,300 while using a handgun contrary to section 344(1)(a.1) of the Criminal Code;
That he committed a break and enter with intent to commit an indictable offence while using a handgun contrary to section 85(1)(a) of the Criminal Code;
That he masked his face with intent to commit an indictable offense contrary to section 351(2) of the Criminal Code;
That he committed a break and enter of a dwelling house situated at 150 Steven Court and had committed therein the indictable offense of robbery with a firearm contrary to section 348(1)(b) of the Criminal Code;
That he used a weapon, namely a knife, in committing an assault upon Gary White contrary to section 267(a) of the Criminal Code;
That he stole the sum of $1,000 from Earl Pulles using threats of violence to Earl Pulles contrary to section 344(1)(b) of the Criminal Code.
2During the course of the trial, the court heard evidence from the following witnesses:
Kelly Bowie, from the Centre for Forensic Sciences. Ms. Bowie was qualified as an expert in the examination and interpretation of DNA from bodily fluids.
Constable Soucie, a police officer with the OPP at the time of the events.
Detective Coene, the lead investigator on the case.
Earl Pulles, one of the victims.
Bruce Beutler, a resident of Essex.
Gary White, one of the victims.
Leonard Pare, a taxi driver in the town of Essex.
Nicole White, one of the victims.
Melissa Iler, the spouse of the accused.
Sarah Martindale, an alibi witness.
3In addition, the court had the benefit of fulsome submissions from Crown counsel and defence counsel.
Background Facts
4Gary and Nicole White are spouses. Earl Pulles is Mrs. White’s son. At the time of the incident, the three of them lived together in a mobile home in a trailer park located in the Town of Essex, Ontario (“the White residence”). Between midnight and 1:00 a.m. on January 4, 2017, two men broke into the White residence. One of the men had a gun. The other man had a knife. The two perpetrators robbed the victims of approximately $3,000 in cash.
5The accused does not take issue with the events as described by the three victims. His defence is one of identification – namely he asserts that he was not one of the persons who committed the offenses.
The Incident
6All three of the victims gave evidence as to what occurred in the early morning hours of January 4, 2017.
7The mobile home in which the victims lived was a modest home. It had a living room, kitchen and dining area along with one bedroom and one bathroom. The mobile home had a main entrance through a sunroom with a sliding glass door and a back entrance. To enter the home, one had to either enter through the sunroom or through the back door. The main entry was into the main living space, with the living room on the right and the kitchen on the left. On one side of the living room was a chesterfield and a reclining chair. On the other side of the living room was a television. A coffee table was in the middle.
8All three of the victims gave their evidence as to what occurred. It is necessary to set out what each of them said.
Mr. Pulles
9Mr. Pulles described himself as having a mental disability. His source of income is Ontario Disability Support Program (“ODSP”). Mr. Pulles described Mr. and Mrs. White as also in receipt of ODSP. Mr. White would also perform odd jobs. Mr. Pulles described Mr. White as approximately 66 years of age, deaf in one ear and with a speech impediment.
10Mr. Pulles was familiar with the accused. He met him through a friend several years prior to the incident. He said that they would “hang out” on a fairly regular basis. Generally, when they were together, it involved the ingestion of crystal methamphetamine. Mr. Pulles described the accused as a larger man. Mr. Pulles described himself as approximately 5’4” tall, weighing 120 pounds. He described Mr. Erdodi as approximately six feet tall, weighing 200 pounds. He said that Mr. Erdodi was aggressive when drugs were involved.
11According to Mr. Pulles, he and his mother were in the living room. They fell asleep watching television. Mr. Pulles was on the couch and Mrs. White was in the reclining chair. Mr. White was in the kitchen assembling a table he had acquired. The fluorescent lighting was on in the kitchen, comprised of a ceiling fan with lights and a light over the sink. There was no lighting on in the living room aside from the television.
12Mr. Pulles and Mrs. White were awakened by a loud bang when two men came into the residence through the sunroom. Both men were wearing dark clothing with a hat and a bandanna covering their faces. The bandannas were black with little white dots. Mr. Pulles described their clothing as “jogging apparel”. One of the men was smaller and thinner than the other man.
13The thinner man pointed a black handgun at Mr. Pulles and Mrs. White. He said, “stay on the couch. Don’t fucking move or I’ll shoot you.” While the thinner man kept his gun pointed at Mr. Pulles and Mrs. White, the larger man approached Mr. White, who was kneeling on the floor at the time. He grabbed Mr. White around the neck and said, “give me your wallet and your fucking money.” He put a knife to Mr. White’s throat. Mr. Pulles said that Mr. White put up a fight. Mr. White received a cut during the scuffle. Mr. Pulles said he saw blood on Mr. White’s hand and on the right side of his neck. The larger man took Mr. White’s money but was unable to take his wallet. Mr. White had the money loose in one of his pockets – the money was not in his wallet.
14Mr. Pulles said that Mr. White had his mother’s disability money, her cheque having been cashed earlier in the day.
15At some point during the scuffle, the bandanna fell off of the larger man’s face and the larger man said, “oh fuck”. The larger man grabbed the bandanna with his hand and held it to his face and then ran out of the residence through the sunroom with the smaller man. The altercation lasted approximately four minutes.
16Mr. Pulles said he saw the side of the accused’s face and recognized it. He said he recognized the accused’s voice. He said he was familiar with the accused having seen him approximately 15 to 20 times. He would contact the accused when he wanted drugs. Mr. Pulles said he yelled out to the accused as he was leaving the White residence “I know it’s you Josh”.
17According to Mr. Pulles, the accused was at the White residence earlier during the afternoon of January 3, 2017. He said the accused attended with another man identified as “Ryan” and had brought some “crystal ice”, which I understand to be methamphetamine. The three men ingested the drug through their nostrils. The accused was at the White residence for this purpose for about 20 minutes. At the time, Mrs. White was in the kitchen with cash organizing her bills. The accused saw the cash.
18Mr. Pulles identified the knife as a small pocket knife with a brown handle, similar to a small hunting knife or jackknife. It was a folding knife, approximately four inches long with the blade out. During the scuffle, the knife dropped onto the floor.
19Mr. Pulles said that he was afraid of the accused. He said that an altercation took place the week before the robbery. The accused was demanding money from Mr. Pulles. Mr. Pulles said the accused shoved him.
20Under cross-examination, it was pointed out that Mr. Pulles has a criminal record extending from 1994 to 2011. He said he has a very bad memory but remembers traumatizing events. He said he was a drug addict until approximately 2011 and confirmed that he used crystal methamphetamine the afternoon prior to the robbery.
21Mr. Pulles said that in January 2017, he was regularly using crystal methamphetamine, but not every day. Once in a while he would contact the accused to ask him to bring over drugs. He would also call Ryan for drugs. He estimated that he took drugs approximately four to five times per month.
22There are discrepancies between Mr. Pulles’ evidence at trial and the information he gave to police right after the incident. I outline them here:
In his police interview, Mr. Pulles was asked if he used drugs the day of the robbery and he said, “not that I can remember”. He told the detective that he used drugs “back in the day” and “a long time ago”. He did not tell the detective that he used drugs within the 12 hours prior to the robbery.
He told the detective that two men were struggling with Gary.
He told the detective that he didn’t know which entrance the men had used to enter the home.
He told the detective that he didn’t see a knife.
He told the detective that the gun was a pellet gun.
He told the detective that he had last seen the accused approximately one month prior to the robbery. He did not tell the detective that he had seen the accused the afternoon prior to the robbery.
When the detective asked why his mother was targeted, he said that his mother “lends money to people”. He did not tell the detective that his mother had been counting money in the kitchen earlier in the day.
He told the police that the bandanna fell off the larger man’s face when he was running out the door as opposed to during the scuffle with Mr. White.
He told police that the smaller man said “oh fuck” as opposed to the larger man.
23When these discrepancies were put to Mr. Pulles, he said he remembered the details, such as the knife, after he spoke to the police. He said he did not tell police that he had used drugs because he did not want them to know. He admitted to hiding some of the facts from the police. He said it is “more important to tell the truth to the court”.
Gary White
24Mr. White said that he was setting up a microwave stand in the kitchen at the time of the robbery. He was using a screwdriver and pliers. Mrs. White and Mr. Pulles were sleeping on the couch in the living room. He said two men came into the residence. One of the men approached him. He was wearing a black coat and hat and his face was covered with a black mask. Mr. White did not see the other man. Mr. White asked the man who approached him what he was doing in his house and the man said, “I want your wallet”.
25Mr. White placed his arms over his chest area, trying to protect his wallet which was in his shirt pocket. Mr. White was kneeling on the floor. The intruder put his right arm around Mr. White’s neck and pulled him up off of the floor. He had a knife – Mr. White just had a glimpse of it. Mr. White said he did not fight back. Mr. White said the intruder took his wallet and the wallet dropped on the floor. The other intruder picked it up and took Mr. White’s cash out of the wallet. Mr. White said he had approximately $3,000 in cash which he planned to use to pay household bills the next morning. The money came from Mrs. White’s disability cheque.
26Mr. White said he only saw the top half of the intruder’s face. He said he did not see the face covering come off. After the intruder took the money, the two men ran off and disappeared. Mr. White chased after them, but they were gone. The only injury Mr. White suffered was a cut to his pinky finger.
27Mr. White was asked if he knew Mr. Pulles’ friends and he said he did not, that Mr. Pulles didn’t bring friends over to the White residence.
28Under cross-examination, Mr. White said that there were no visitors at the White residence the day prior to the robbery. He had not told anyone that he had cash on him – only Mrs. White was aware. He said he saw both men come into the residence from his side. He could only see their eyes. Their faces were covered with a ski mask type covering. He said he thought the two men were in the residence approximately 15 to 20 minutes. He was familiar with the accused having seen him previously. He confirmed that Mr. Pulles never had friends over to the White residence, that Mr. Pulles was always residing with them, and he and Mrs. White had been married almost 23 years.
Nicole White
29Mrs. White generally slept in the living room of the White residence in a recliner that turned into a bed. She was in that recliner watching television with Mr. Pulles at the time of the robbery. She estimates that she fell asleep at approximately 11:30 p.m. She woke up to a loud bang and Mr. White screaming her name. Two intruders had come into their home. Mr. White had been in the kitchen on the floor putting a cabinet together. One intruder had a gun. He held it with two hands and waved it back and forth between she and Mr. Pulles while saying “don’t move”. Mrs. White did not know the individual holding the gun.
30Mrs. White described the clothing of the two intruders as black jeans and a jacket. She said they wore hats and had bandannas covering their faces. The bandannas were solid black. The two men came in through the main entrance through the sun room.
31The second intruder had Mr. White by the neck. He had a jackknife. The intruder reached for the wallet in Mr. White’s shirt pocket. Mr. White resisted and there was a scuffle. The intruder cut Mr. White and Mr. White let go of the wallet. Mrs. White said that the bandanna fell off of this intruder’s face during the scuffle and she recognized the accused. She called out “Josh”, said “I’m calling the police” and the intruders ran out.
32Mrs. White said she saw the intruder’s eyes and, when the bandanna fell off, the side of his cheekbone and a little of his mouth. She could not remember if she saw the left side or the right side of the face. The intruder said, “oh fuck”. Mrs. White said she recognized the accused’s voice.
33Mrs. White has said that she did not see a knife. She estimates the incident lasted approximately 30 minutes. She said the gun was a black gun – it may have been a BB gun.
34Mrs. White said she was familiar with the accused. She said in the years prior to the robbery, the accused came over to the White residence often, approximately two to three times per week to see Mr. Pulles. Mr. Pulles and the accused were familiar with each other for a couple of years. The accused spent time at the White residence, approximately two to three times per week at the time of the robbery. Mrs. White said that the accused and Mr. Pulles used drugs in the bedroom of the home. Mrs. White said the accused stole items from her, particularly her wedding ring. She said that the accused brought the ring back but made her pay $40 for it. According to Mrs. White, her familiarity with the accused was such that he would walk into her house without knocking.
35Mrs. White said that many people would call Mr. Pulles on the telephone late at night and that Mr. Pulles would have people come to the White residence at all hours of the day and night.
36On the afternoon prior to the robbery, Mrs. White said that Mr. Erdodi was at the White residence. He and Mr. Pulles were ingesting drugs. She had just cashed her disability cheque and so had money with her at the time. She said that the money might have been in the open if she was counting it for her bills – that she was not necessarily private about it. She would count the money, review the bills, tell Mr. White what needed to be paid and then he would go and pay the bills in cash. She did the counting of the money in the kitchen.
37In cross-examination, Mrs. White’s criminal record was put to her. She had several drug offenses, in 1993 and 2007.
38Mrs. White had also given a statement to police. There were inconsistencies between her statement to the police and the evidence that she gave as a witness. Those inconsistencies were explored during the cross-examination. I outline them here:
When police asked Mrs. White how often the accused came to her home, she said “not a lot”. She said it was not more than ten times in the last year.
When police asked her how long it been since she had seen the accused, she said approximately one- and one-half months.
She had told the police officers that Mr. Pulles had been drug free for one-and one-half months at the time of the robbery. In her evidence, she said that Mr. Erdodi and Mr. Pulles ingested drugs the afternoon prior to the robbery.
She told police she did not see what the accused had on his face, but it was covered. She told them that Mr. Pulles told her it was a bandanna. In her evidence she said she saw a bandanna on the accused’s face.
She told police that she could not remember what colour the face covering was, but that Mr. Pulles told her it was red. In her evidence at trial, she said the bandanna was black.
She told police that the second intruder did not point the gun at she and Mr. Pulles – that he had it at his side. She told the police “he didn’t point it at nobody”. At the trial, she said that the gun was pointed at her and Mr. Pulles.
She told police that she had received her monthly ODSP cheque on December 20, before the holidays. The incident took place 14 days later. There was no explanation as to why she and Mr. White had so much cash in their house.
She told police it was the second intruder and not the accused that said, “oh fuck”.
Other Evidence of Events January 3-4, 2017
Melissa Iler
39Ms. Iler resides in a housing complex located at 33 Maidstone Avenue East in the Town of Essex. She resides in unit number 64. She lived there at the time of the robbery. The accused is her spouse. She and Mr. Erdodi have been together for approximately nine years and have a child together, two years of age.
40In January 2017, the accused was living with Ms. Iler intermittently – she described it as “off and on”. She said they had their differences and the relationship was breaking down. Ms. Iler is familiar with Mr. Pulles and Mrs. White. She said that she took the accused to the White residence in the trailer park on occasion. She would wait in the car when the accused went inside. She said that she drove the accused to the White residence so that he could purchase drugs from Mrs. White. The accused would purchase dilaudid or hydromorphone from Mrs. White. She knew that the accused and Mr. Pulles used drugs together.
41Ms. Iler said that she took the accused to the White residence on approximately 20 occasions. The visits were at any time of day. Ms. Iler said that Mr. Pulles would contact her residence on numerous occasions looking for the accused. He wanted the accused to come to the White residence and bring drugs. The accused and Mr. Pulles began spending time together for at least one year prior to the robbery.
42Ms. Iler described Mr. Erdodi as someone who required prescription drugs for pain. She said he had been seriously injured after being beaten in the penitentiary. She said that when his medications ran out, he would purchase pills from Mrs. White.
43Ms. Iler said that when she and the accused fought, the accused stayed with his friend, Rob Garant. At the time of the robbery, Ms. Iler and the accused were not on the best of terms and he was not staying at her residence.
44On January 3, 2017, Ms. Iler saw the accused in Essex. She drove him to Windsor in the evening and dropped him off at the Wendy’s restaurant on Howard Street. She said that the accused had no other means of transportation at the time. She next saw him later that night. She was sleeping and is not aware of the time. She heard the back door open, came downstairs, and the accused was there. He said he was grabbing a few things and would be on his way. She said the accused was with another male. The accused was wearing dark pants and a dark orange winter jacket. The other male was wearing a sweater with a hood. There was something around his neck. The second man changed his pants in her kitchen. She did not know why the other man was changing his pants and she did not ask.
45The two men were in her residence for approximately five minutes. Ms. Iler asked the two men to leave and they left. She did not ask where they were going. They left at the back entrance toward the front of the housing complex. She did not see them take anything with them.
46Ms. Iler said she was not surprised to see the accused at her residence. She did not recognize the other man.
47According to Ms. Iler, her home is approximately a five minute drive from the White residence.
48The next morning, the accused called Ms. Iler on his cell phone. Ms. Iler heard about the incident from a third party. Ms. Iler told the accused that she had heard something happened at the trailer park. He said he did not know anything about it.
49Ms. Iler was asked if she had driven Mr. Erdodi to the White residence the afternoon of January 3. She said she had not. She did not know where he was that day.
50Under cross-examination, Ms. Iler said that she took the accused to the White residence only when his prescription ran out. She recalled an incident about a wedding ring. She said that Mr. Pulles would take his parents’ belongings and sell them. She said that Mr. Pulles sold Mrs. White’s ring to the accused. Mrs. White came to Ms. Iler’s home for her ring and the accused returned it to her.
Sarah Martindale
51Ms. Martindale knows both the accused and Ms. Iler. She lives in the same housing complex. Apparently, she would socialize with the accused and the accused spent time with Ms. Martindale’s boyfriend.
52According to Ms. Martindale, she has a knack for repairing cell phones.
53On the night of the robbery, at approximately 11:30 p.m., according to Ms. Martindale, she walked through the Town of Essex with her four-year-old son coming home from her brother’s birthday party. She saw the accused on her way home. He was at the bus stop. They exchanged pleasantries and Ms. Martindale told the accused she was heading home. The accused asked if he could come with her and get her to help unlock a cell phone. The accused was with another man, who is shorter and skinnier than the accused. They were both wearing dark clothes. Neither of the men had bandannas.
54Ms. Martindale’s unit is in the same housing complex as that of Ms. Iler, on the opposite side. She said the two men were near Ms. Iler’s residence. Ms. Martindale said the that the man with the accused was “sketchy” and she thought maybe he was on drugs. The accused was acting normally. They arrived at her home. Ms. Martindale asked the accused to ask his friend to leave, and he did. The accused came into her residence.
55Inside the residence, the accused sat down while Ms. Martindale put her son to bed and telephoned her boyfriend. She then joined the accused who gave his phone to her. It was a black android type phone. She connected the phone to her computer and tried to unlock it. On approximately two to three occasions, while Ms. Martindale was working on the phone, the accused went outside for a cigarette. Ms. Martindale estimates that the accused was in her home for close to two hours. Eventually, she asked him to leave so that she could go to bed. The accused left the residence, leaving his phone with Ms. Martindale so that she could keep working on it.
56In her evidence in chief, Ms. Martindale said that she had given evidence at the bail hearing at the request of Mr. Erdodi’s lawyer. She was asked if the police ever contacted her, and she said, “no – not even once”. She continues to live at the same residence and insisted that no police officer ever approached her before or after the bail hearing about this matter. She did not give a statement to the police.
57Mr. Lesperance conducted a thorough cross examination of Ms. Martindale. In addition, Detective Coene was called to give reply evidence. The following came to light:
At the trial, Ms. Martindale said that the accused was wearing a coat. At the bail hearing, she said he was not wearing a coat.
At the bail hearing, Ms. Martindale said that the smaller man was wearing a bandanna, coloured red and blue or black.
Ms. Martindale discovered that the accused was a suspect in the White residence home invasion shortly after the robbery occurred but did not call police to volunteer information. She said she did not know it was “her job” to go to police.
It became clear that Ms. Martindale has little respect for police. She said that her boyfriend has a record. She said that in the past, she had provided a statement to police on another matter and they “trashed it”.
Ms. Martindale said that the police knew who she was and where she lived as they had attended at her residence previously with respect to her boyfriend.
Detective Coene learned about Ms. Martindale from the Crown’s office after the bail hearing. He was given Ms. Martindale’s address and telephone number and asked to try to obtain a statement.
Detective Coene called Ms. Martindale on May 16, 2017, at 9:44 a.m. He left a message on her cell phone. On May 25, 2017, at approximately 2:00 p.m. Detective Coene attended at her residence. Nobody was there. He tried to call her cell phone again. Detective Coene left a business card in her door.
On May 25, 2017, Ms. Martindale called Detective Coene. She scheduled an appointment with Detective Coene to provide a statement for the next morning, May 26 at 8:00 a.m. She did not attend the appointment.
At 8:21 a.m. on May 26, Detective Coene called Ms. Martindale and she did not answer. Her voice mailbox was full. He placed a second call at 8:45 a.m. She still did not answer. He placed a call on May 29 and left a message.
Ms. Martindale returned Detective Coene’s call at 6:20 p.m. on May 29. Ms. Martindale told Detective Coene that she had gone blind in one eye and could not attend her scheduled appointment. She set up another appointment for May 30 at 3:00 p.m.
Ms. Martindale did not attend the May 30th appointment with Detective Coene. He called and left her another message. The message was never returned. After that, Detective Coene gave up. He concluded that she was avoiding him and had no intention of providing a statement.
The Issue
58The decision in this case rests entirely on the identification of Mr. Erdodi by Mr. Pulles and Mrs. White. The accused was familiar to the two complainants. Thus, we are dealing with an instance of recognition.
Analysis
59The Court of Appeal, in the recent decision of R. v. Chafe, 2019 ONCA 113 at paragraphs 29-32, said the following about recognition evidence:
Recognition evidence is not “different” from identification evidence. It is subject to the same frailties and the same risks. This is significant where, as here, a jury may be quick to assume that, because the witness knows the person, the identification must be correct. A trier of fact could intuitively place undue reliance on the evidence of recognition without a clear instruction outlining the frailties. The trier of fact, whether judge or jury, must approach the evidence of recognition with the same caution as identification evidence and the evidence must have the same level of reliability.
Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition: see R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A), at para. 27.
With respect to recognition evidence, this court said in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 38:
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
It is crucial to remember, though, that recognition evidence is a form of identification evidence. The same level of assessment of the evidence must apply. Continuing on in Olliffe at para 39:
It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.
60Identification evidence itself is fraught with inherent frailties. The Court of Appeal, in R. v. Miaponoose, 1996 CanLII 1268 (ON CA), 1996 CarswellOnt 3386, illustrated the frailties by reference to the Law Reform Commission of Canada study paper (1983) on “pretrial eyewitness identification procedures”. The court said, at paragraph 11:
Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness's opinion when she says "that is the man" is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists. One example is pointed out by the Commission (at p. 10):
Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus, the final recreation of the event in the observer's mind may be quite different from reality.
Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.
While the circumstances surrounding the witness's identification can be subject to scrutiny in cross-examination, many of the more subjective processes that have led to it are impossible to expose in this fashion.
61I embark upon an analysis of the evidence of the complainants with these legal principles in mind. The key issue is the reliability of that evidence.
62Starting with Mr. Pulles, Mr. Pulles was firm in his evidence that the accused was the individual brandishing the knife during the robbery. He adamantly stated as such, on a number of occasions. There was no doubt in his mind. But was his evidence reliable?
63Mr. Pulles saw the side of the perpetrator’s face for mere seconds from across a relatively short distance. The area where the perpetrator was positioned was relatively well lit. Mr. Pulles heard the perpetrator say, “oh fuck”. Based on his brief glance of the perpetrator and hearing those two words, Mr. Pulles made his identification of the accused as the perpetrator.
64The fact that Mr. Pulles is well acquainted with the accused is a factor in favour of the reliability of Mr. Pulles’ evidence.
65There are a number of factors that would serve to question the reliability of Mr. Pulles’ evidence. Firstly, Mr. Pulles had ingested drugs earlier in the day. He was awakened abruptly just before the robbery. In addition, the numerous discrepancies between the evidence he gave the court about the incident and the information he gave to police right after the incident must be considered. In my view, Mr. Pulles was embellishing his evidence. The knife is an example. Mr. Pulles told the Detective that he did not see a knife. In his evidence, he said the intruder had a small pocket knife with a brown handle. Another example is the intruders’ entrance to the home. Mr. Pulles told the Detective that he did not know which entrance the men used to enter the home. At trial, he said they came through the main door way, passing through the sun room. He told the police that the bandanna fell off the larger man’s face when he was running out the door. At trial, he said the bandanna fell off during the scuffle with Mr. White. He told the police that the smaller man was the one who said, “oh fuck”. At trial he said that it was the larger man. All of these discrepancies between Mr. Pulles’ accounting of the events bring his ability to observe into question.
66In addition to reliability, I must consider the credibility of Mr. Pulles as a witness. He did not give the police the entire story when he gave them his statement immediately after the robbery. He did not tell the Detective that he had seen the accused on the day of the robbery. He did not tell the Detective about his mother counting money in the kitchen in the accused’s presence. Mr. Pulles admitted to hiding some of the facts from the police. This can only call into question his truthfulness.
67Returning then to the evidence of Mrs. White. Like Mr. Pulles, she was familiar with the accused. That familiarity is a factor in favour of the reliability of her evidence.
68There are several factors that call into question the reliability of Mrs. White’s evidence. She was situated on the lazy boy chair, in the farthest corner of the living room. She said that when the intruder’s bandanna slipped from his face, she saw his cheekbone and part of his mouth. She had mere seconds to make this observation. She said when the intruder said, “oh fuck”, she recognized his voice. However, once again there are discrepancies between what Mrs. White told the police immediately following the robbery and what she told the court during the trial. She told the police that she did not see what the accused had on his face, but that his face was covered. In her evidence, she said that she saw a bandanna on the accused’s face. She told police she could not remember what colour the face covering was, but that Mr. Pulles had told her it was red. In her evidence, she said the bandanna was black. She told police that the second intruder did not point the gun at she and Mr. Pulles – that he had it at his side. At trial, she said that he was pointing the gun at them. These discrepancies bring into question Mrs. White’s ability to accurately observe and recollect the events.
69I have similar concerns about Mrs. White’s credibility. There were things that she kept from the police in her statement following the incident. At trial, she said that Mr. Pulles and the accused were injecting drugs in her home the afternoon prior to the robbery. She told the police that she had not seen the accused for approximately one- and one-half months and that Mr. Pulles had been drug-free for one- and one-half months.
70In so far as Mr. Pulles is concerned, I take into account the manner in which he gave his evidence. He became argumentative with defence counsel during his cross examination, particularly when the discrepancies between his evidence and his police statement were pointed out.
71In the end, I cannot find that the identification evidence of Mr. Pulles and Mrs. White is sufficiently reliable such as to leave the court with no reasonable doubt. Although not necessary given this conclusion, I go on to address the alibi evidence.
Alibi
72The 911 call from the White residence was made at approximately 12:50 a.m., right at the time that Ms. Martindale said the accused was at her home. If I believe Ms. Martindale, or her evidence raises a reasonable doubt, then Mr. Erdodi must be acquitted.
73Ms. Martindale gave the court many reasons to disbelieve her. She avoided Detective Coene when he tried to contact her. She set up appointments to provide a statement and then did not show up. For whatever reason, she was not prepared to co-operate with Detective Coene whatsoever.
74Ms. Martindale was very argumentative with Crown counsel when he was questioning her. She kept insisting that she was not contacted for a statement. She would not concede that Detective Coene had made multiple calls to her phone and attended at her residence in an attempt to make contact.
75Despite Ms. Martindale’s obvious disdain for law enforcement, her refusal to co-operate with police following the robbery itself, and her combative and belligerent manner with Crown counsel, I find that Ms. Martindale’s evidence raises a reasonable doubt as to the whereabouts of the accused at the time of the robbery. Her recollection of events that occurred that night was clear, and she was not shaken on cross examination. In addition, she had reason to recall the timing of events, given it was the same night as her brother’s birthday party.
Disposition
76For the foregoing reasons, I find that the Crown has not proven Mr. Erdodi guilty beyond a reasonable doubt and he must be acquitted on all counts.
Pamela L. Hebner
Justice
Released: Orally on October 31, 2019
COURT FILE NO.: CR-18-4212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Joshua Nelson Erdodi
REASONS FOR JUDGMENT
Hebner J.
Released: Orally on October 31, 2019