COURT FILE NO.: CR-18-30000615-0000
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS McDONALD
Defendant
T. Pittman, for the Crown
A. Karapancev, for the Defendant
HEARD: October 21, 22 and 24, 2019
Davies J.
A. Overview
[1] Two men robbed a convenience store in Scarborough just before 11:00 p.m. on December 4, 2016, stealing cash and lottery tickets. There were several security cameras in and around the store so the robbery was caught on videotape.
[2] The only issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. McDonald was one of the two men who carried out the robbery. There is no direct evidence that Mr. McDonald was involved. The store clerk is not able to identify either of the two people involved. They are not identifiable from the surveillance video either. They had hoods pulled up over their heads, obscuring their faces. However, the police found several items of clothing that match the clothing worn by the participants in the robbery in an apartment and in a car linked to Mr. McDonald.
[3] Because the Crown’s case on the issue of identification is entirely circumstantial, Mr. McDonald can only be found guilty if the only reasonable inference from all the evidence is that he was one of the two men who committed the robbery. I must consider carefully the possibility that Mr. McDonald was not involved. If, after applying logic and reason to the evidence or the absence of evidence, there remains a plausible argument that Mr. McDonald was not involved, he must be acquitted: R. v. Villaroman, 2016 SCC 33 at paras. 30 and 37. I must also be careful not to rely on conjecture or speculation to bridge any inferential gaps in the evidence: R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446 (S.C.) at para. 31.
[4] For the reasons that follow, I find that the only reasonable inference from all the evidence is that Mr. McDonald was one of the two men who robbed the convenience store on December 4, 2016 and I find him guilty of robbery.
[5] Mr. McDonald is also charged with wearing a disguise with the intent to commit an indictable offence. I heard no evidence that Mr. McDonald was wearing a disguise during the robbery and, as a result, he is acquitted on that count.
B. Description of Participants in the Robbery
[6] The two people who robbed the store were each wearing some distinctive clothing.
[7] One was wearing a black jacket with red and black checkered sleeves and a large Pepe Jeans logo on the back. He was also wearing reddish-orange gloves with black on the fingers and palms, and black writing on the back. During the robbery, this man walked behind the check-out counter, grabbed the store clerk by the neck and pushed him to the ground. He told the clerk to open the cash register. He took most of the cash out of the register before leaving the store.
[8] The other man was wearing a black hooded sweatshirt with a large “Crooks & Castle” logo embroidered on the back. He was wearing a baseball cap that had a sticker on the brim. He had the hood of the sweatshirt pulled up over his hat. He was wearing grey sneakers with white laces and white soles. He was also wearing blue gloves with a black stripe across the back and black fingertips. This person also went behind the check-out counter during the robbery and stole a large number of lottery tickets. It is the Crown’s theory that Mr. McDonald was the person wearing the Crooks & Castle sweatshirt and blue gloves.
[9] The store clerk testified that he recognized the person in the red and black checkered jacket from earlier in the evening. The surveillance video shows that a black man wearing the same black jacket with red and black checkered sleeves came into the convenience store at 6:13 pm and again at 6:17 pm. He made a purchase and spoke to the clerk both times. When he came in the second time at 6:17 pm that evening, he was with a white man with facial hair who was wearing a dark blue hooded sweatshirt with a white logo on the chest, a blue baseball cap with a logo and a sticker on the brim, and white sneakers. There is video surveillance from outside the store that shows these two people arriving at the store in a black car. The person in the blue sweatshirt was driving the car. The person in the black and red checkered jacket was in the front passenger seat. The make and model of the car cannot be identified from the video. It is the Crown’s theory that the white man with the dark blue sweatshirt and baseball cap who was driving the black car was also Mr. McDonald.
C. Evidence Connecting Mr. McDonald to the Robbery
[10] The police searched an apartment on Sewells Road in Scarborough on January 8, 2017, just over a month after the robbery. Mr. McDonald was in the apartment when the police arrived just before 6:00 a.m. Mr. McDonald’s girlfriend and a young child were the only other people in the apartment at the time.
[11] Mr. McDonald was wearing just a pair of underwear and a tank top when the police arrived. He was given an opportunity to get dressed before he was taken to the police station. The Crown filed a screen shot taken from Mr. McDonald’s videotaped statement on the day of his arrest. He is wearing a dark blue hooded sweatshirt with a white logo on the chest. The Crown argued that the sweatshirt Mr. McDonald put on before he left the apartment with the police matches the sweatshirt worn by the white man in the convenience store a few hours before the robbery.
[12] The police found Mr. McDonald’s wallet and driver’s license in the pocket of a pair of jeans in the living room. They also found a blue San Diego Padres baseball cap with a gold and black sticker on the brim on a chair in the living room. The Crown argues that this hat matches the hat worn by both the white man in the blue sweatshirt who came into the store before the robbery and the person in the Crooks & Castle jacket.
[13] Finally, the police found an Infinity key clipped inside the pocket of a backpack on the floor in the master bedroom. Mr. McDonald’s birth certificate was also in the backpack. The backpack was under a pile of clothing and other items when the police found it. The Crown argues that this is Mr. McDonald’s backpack and key.
[14] The police also had a warrant to search a black Infinity G35, which they found parked outside the Sewells Road apartment building. The key found in the black backpack in the apartment opened the car. The police found three cell phones in the car. In the trunk, they found a black hooded Crooks & Castle sweatshirt. They also found two pairs of gloves: a pair of reddish-orange gloves with black on the fingertips and palm and black writing on the back, and a blue pair with a strip of black fabric across the back as well as black fabric on the fingertips and palms. Finally, the police found two pairs of sneakers: a pair of grey Nike high-top sneakers with white laces and white soles and a pair of white Air Jordan high-top sneakers with blue accents on the soles and laces. The Crown says all the items found in the trunk match items worn by the two people during the robbery or when they were in the store earlier in the evening.
D. Defence Position
[15] Counsel for Mr. McDonald argued that there are several significant gaps in the Crown’s case and, as a result, the Crown has not proven beyond a reasonable doubt that Mr. McDonald was the individual in the Crooks & Castle sweatshirt that robbed the convenience store on December 4, 2016.
[16] First, the defence argued that there are gaps in the evidence connecting Mr. McDonald to the Infinity G35. The defence acknowledged that the only reasonable inference from all the evidence is that the Crooks & Castle sweatshirt and the gloves found in the Infinity G35 were worn by the individuals during the robbery. However, the defence argued that there is not enough evidence to prove the car or the items in the car belong to Mr. McDonald.
[17] The defence points to the following pieces of evidence or gaps in the evidence to challenge the Crown’s argument that the Infinity G35 belongs to Mr. McDonald:
- There is no evidence that Mr. McDonald is the registered owner of the Infinity G35 or that he ever drove that vehicle.
- There is no forensic evidence connecting Mr. McDonald to the Infinity G35 or anything found in the trunk.
- There is no evidence about what car, if any, was used by the individuals who robbed the store.
- There is evidence that the car that the two people got into after leaving the store a few hours before the robbery is not the Infinity G35. When the driver’s door of that car is opened, an image is projected onto the ground from the underside of the door. The officers who searched the Infinity G35 did not testify about seeing an image being projected from the bottom of the door when they opened driver’s door.
- Three cell phones were found in the Infinity G35, which suggests that the car was used by more than one person. The cell phones were never searched so there is no evidence about the registered owners of the phones.
- The police found a BMW key at the apartment as well as a Vehicle Licence Registration Renewal Application in Mr. McDonald’s name for a 2000 grey BMW.
[18] Second, the defence argues that even if the Court finds that the key located in the backpack in the apartment provides a link between Mr. McDonald and the Infinity G35, there is no evidence about when the items found in the trunk were put there, or by whom. The defence argued that the passage of time between the robbery and the search of the Infinity G35 weakens any possible link between the items in the Infinity, the robbery and Mr. McDonald. The defence argues that someone else could have committed the robbery and placed the items in the trunk of the car without Mr. McDonald’s knowledge sometime between December 4, 2016 and when the police searched the car on January 8, 2017.
[19] Third, the defence argued that other than the Crooks & Castle sweatshirt and gloves, none of the items worn by the second robber or the person who came into the store with the man in the black jacket with checkered sleeves earlier in the evening are truly distinctive. The defence argues that the video is not clear enough to identify logo on the blue sweatshirt worn by a person believed to be Mr. McDonald as a Nike logo, or to identify the logo on the baseball hat that person was wearing as a San Diego Padres logo. Counsel argued that the best that can be said from the video is that the sweatshirt may be a Nike sweatshirt and the hat may be a San Diego Padres hat. I am satisfied that the blue sweatshirt has a Nike logo on the chest, however, I am not able to identify the logo on the baseball cap with any degree of certainty. It may be a San Diego Padres logo but the video is not sufficiently clear for me to make that finding.
[20] The defence argues there is nothing distinctive about the grey and white sneakers worn by the person believed to be Mr. McDonald on the night of the robbery. The defence also argued that there is no evidence the shoes found in the car would even fit Mr. McDonald.
[21] Finally, the defence argued that even if the Court is satisfied that Mr. McDonald was in the store with the man in the red and black jacket earlier in the evening, there is not enough evidence to find beyond a reasonable doubt that Mr. McDonald was the second person involved in the robbery. The defence argued that it defies logic that Mr. McDonald would take steps to alter his appearance by changing his top and shoes before returning to the store for the robbery but the other individual would wear the same clothes for the robbery that he wore earlier in the day.
E. Findings and Conclusion
[22] I agree with the defence that some of the clothing worn on the day of the robbery by the person believed to be Mr. McDonald is not truly distinctive. For example, there is nothing distinctive about a dark blue Nike hooded sweatshirt. Nike is a very popular brand and hooded sweatshirts are prevalent in our society. There is also nothing about the white sneakers that the white man in the Nike sweatshirt was wearing a few hours before the robbery that would allow me to clearly identify them on the video as high top Air Jordan sneakers, the brand of sneakers found in the trunk of the Infinity G35. Similarly, the video is not clear enough to identify the specific brand of the grey sneakers worn by one of the participants in the robbery.
[23] Nonetheless, some of the items worn during the robbery are truly distinctive, including the Crooks & Castle sweatshirt and the two pairs of gloves. The colour and style of the gloves in the trunk of the car match precisely those worn by the participants in the robbery, including the black stripe across the back of the blue gloves and the black writing on the back of the reddish-orange gloves.
[24] Based on the totality of the circumstantial evidence, I am satisfied that the Crooks & Castle sweatshirt, gloves and grey sneakers in the trunk of the Infinity G35 were worn during the robbery. The sweatshirt and gloves are easily identifiable. And the presence of two pairs of shoes in the trunk that match the style and colour of the two pairs of shoes worn by the person believed to be Mr. McDonald on the night of the robbery support my finding.
[25] The key issue then is whether the Crown can establish that the items in the Infinity G35 belong to Mr. McDonald. I agree with the defence that if the Crown cannot establish a clear link between Mr. McDonald and the Infinity G35, as the owner or driver, there would be no basis to conclude that the Crocks & Castle sweatshirt, gloves and shoes found in the trunk belong to him or that he was involved in the robbery.
[26] I find that the black backpack in the bedroom of the apartment belongs to Mr. McDonald. It was in the bedroom where he was when the police arrived and his birth certificate was in it. I find that the Infinity key located in the backpack also belonged to Mr. McDonald.
[27] Notwithstanding the absence of evidence about the registered owner of the Infinity G35 or forensic evidence connecting Mr. McDonald to the car or the items in it, I am satisfied that the black Infinity G35 belonged to or was being driven by Mr. McDonald. He was in possession of the key to the car and it was parked outside the apartment building where Mr. McDonald was staying. The evidence that Mr. McDonald is the registered owner of another car, a grey BMW, does not detract from my finding that the Infinity G35 was his car.
[28] No one piece of evidence would, on its own, be sufficient to establish beyond a reasonable doubt that Mr. McDonald was the man in the Crooks & Castle sweatshirt and blue gloves who participated in the robbery. However, the constellation of items found in the apartment and trunk of the Infinity and the evidence linking Mr. McDonald to the Infinity satisfies me beyond a reasonable doubt that Mr. McDonald was one of the participants in the robbery. There is no other reasonable inference to be drawn from the evidence in this case. The fact that Mr. McDonald put on a sweatshirt on the day of his arrest that matches the sweatshirt worn by the white man in the store hours before the robbery only strengthens my conclusion.
[29] Any suggestion that someone else had access to and put all the items of clothing in the trunk of the Infinity without Mr. McDonald’s knowledge sometime between December 4, 2016 and January 8, 2017 is speculation.
[30] I therefore find Mr. McDonald guilty of robbery.
Davies J.
Released: November 22, 2019
COURT FILE NO.: CR-18-30000615-0000
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
THOMAS McDONALD
REASONS FOR JUDGMENT
Davies J.
Released: November 22, 2019