COURT FILE NO.: 7988/19
DATE: 2019-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Didiodato, Counsel for the Crown
- and -
ALEXANDRE ETHIER
Jennifer Tremblay-Hall, Counsel for the Defendant
HEARD: November 12, 13 and 14, 2019
McMillan J.
REASONS FOR JUDGMENT
OVERVIEW
[1] The accused appeared before me for his trial on a three-count indictment respecting the robbery of a convenience store appended to a self-serve gas bar on August 28, 2018 at 12:55 a.m. in the Town of Elliot Lake. The offender was armed with a knife and verbally threatened the clerk if he were to summon police within 15 minutes of the offender’s departure.
[2] Crown and defence counsel have acknowledged that the singular issue for trial is the identification of the individual who committed the robbery. Simply put, if the evidence relating to identification establishes the accused to be the offender beyond a reasonable doubt, then he is to be found guilty on each count, and if not, then verdicts of not guilty are to be entered on each. Hence, the court need not address the evidence supporting the essential ingredients of each of the three counts in the indictment and which I find to have been established in any event subject to the offender’s identification.
[3] The trial proceeded with the Crown calling the gas bar attendant, A. Kirby; police officers B. Leeson, R. Campbell, and S. Groot and; the accused’s mother J. Michaud. Defence counsel called one witness, the accused’s sister, J. Ethier.
[4] Evidence of the identification of the offender who committed the robbery was presented in the form of security video recordings from a total of 15 cameras at the Esso gas bar and convenience store, as well as eye-witness testimony of the attendant/clerk, Austin Kirby. The remaining evidence as to identification of the offender was recognition evidence provided by Officer B. Leeson, the accused’s mother, J. Michaud, and sister, J. Ethier, all of which was vetted on Leaney voir dires concerning their qualifications to give opinion evidence.
SUMMARY OF THE EVIDENCE
[5] Approximately one hour after midnight on August 28, 2018, a black GMC pick-up truck drove up to one of the island gas pumps at the Esso service station. An individual exited the front passenger door and entered the kiosk. The sole employee, 22-year-old Austin Kirby, had returned to the service counter and was on his cellphone speaking with his girlfriend. The offender approached Kirby while brandishing a small knife and demanded the money in the cash register and Number 7 Reds cigarettes. Kirby was told not to call police for 15 minutes as the offender stated he knew where Kirby resided. The offender also took lottery tickets and left the kiosk and re-entered the black GMC truck through the front passenger door. The truck drove away.
[6] Kirby had not hung up on his girlfriend and she had heard the audio of the robbery. She called 911 or police who attended the scene at 1:07 a.m. in the persons of Leeson in one cruiser, and his partner, Constable Wallback, in another vehicle. Leeson spoke to the clerk and was informed that the offender had just left the scene in a black GMC truck and indicated its direction of travel. Leeson ran to his cruiser and began a search for the truck in Elliot Lake. He did not have a description of the offender. He searched unsuccessfully from 1:12 to 5:50 a.m., August 28, 2019.
[7] At approximately 1:15 a.m., Leeson received details from the other officer of the suspect’s appearance, including clothing, sunglasses, three-inch knife, and a licence plate number. Officer Leeson held a predisposition that the offender in this case was the accused and that locating the vehicle would lead him to the offender whom he believed to be the accused person in this matter.
Austin Kirby
[8] He had been employed at the service station since February 2018. He is the only eye-witness who testified at the preliminary hearing and at trial. He believed this matter had been concluded at the preliminary hearing where he had identified the accused Alex Ethier as the person who robbed the Esso station on August 28, 2018. The offender approached the service counter with a small knife in hand and demanded the money in the till. He was wearing a red hoodie, red pyjama pants, and sunglasses with a black frame and purply/blue tinted lenses.
[9] Mr. Kirby does not recall exactly what was said to him by the offender who spoke in a low, deep tone of voice and in a calm manner. He testified that he recognized the voice as that of a customer who attended two to three times a week to buy smokes (Number 7 Reds), snacks and gas. The customer drove a black GMC pick-up truck. He identified the accused in the courtroom as the offender.
[10] In the course of cross-examination, Mr. Kirby acknowledged that his memory was better following the event than at trial. His direct involvement with the offender lasted one minute and seven seconds. The offender only spoke a few words and in a nondescript volume. Mr. Kirby acknowledged that he has a poor memory, “not the greatest”, and couldn’t say how many times he might have heard the voice in the weeks prior to the robbery, bearing in mind that the accused took up residence in Elliot Lake in June 2018. He heard the voice on multiple occasions in the store.
[11] The witness did not “process” the voice until after attending with his manager and police and repeatedly reviewing the videos. He was told by police that the store had previously been robbed by Alex Ethier. He was also told by police that the black GMC truck belonged to Alex Ethier. From the name, Kirby’s girlfriend obtained a photograph of the accused on line. He formed a firm belief that it was Alex Ethier who robbed the store on August 28, 2018.
[12] Mr. Kirby was not acquainted with the accused and was not requested to participate in a photo line-up. He did not tell the police initially that he recognized the offender’s voice. He provided the police with an incorrect description of the offender’s height, around 5-foot, 9-inches, similar to Mr. Kirby’s height. The accused is significantly taller. He did not provide any observation regarding the presence or absence of hair or facial hair. His trial evidence of his description of the offender’s sunglasses worn in the robbery changed to conform with sunglasses shown to him in September 2018 by police that had eventually been found in the accused’s truck.
[13] Mr. Kirby agreed with defence counsel that at the time of this robbery and shortly thereafter he wasn’t sure who the offender was but that subsequent events fortified his belief that Alex Ethier was the offender. The police had subsequently told him that this accused had stolen gas from a Canadian Tire gas bar at 6:00 a.m., August 28, 2018, and that he was eventually picked up by the police outside of Sudbury.
Joanne Michaud
[14] Ms. Michaud is the mother of the accused and has lived in Elliot Lake for 25 years. She is acquainted with her son since his birth and most recently since his return to Elliot Lake in June 2018. He previously resided in Timmins. He visited with her at Easter of 2018. Prior to the robbery at the Esso service station, she had last seen him on August 26 or 27, 2018, when he attended at her home. She gave him $5.00 for gas. He had a drug addiction and she didn’t know where he was residing.
[15] The only change in his appearance at trial from his last visit was that he previously had longer hair, approximately two inches longer. There were no other changes. However, in cross-examination when asked about a mustache, she corrected her evidence to say that he did have a mustache and facial hair. She had reviewed the video, Exhibit 2, and her audio statement to police in preparation for trial that morning.
[16] Upon reviewing the video in court showing the offender in the store on cameras 14 and 15 at 12:55:01 to 12:56:12, and in reference to identity, she testified that the person in red “looks like” her son’s walk and the way he stands. She went on to say that she couldn’t be one hundred percent sure “because I can’t see his whole face” and she couldn’t tell because of the sunglasses. She then alluded to the three still photos, Exhibit 3, shown to her and referenced the lips, big hands, and build as features similar to her son’s. She said it seemed like his face but couldn’t tell with the sunglasses and that it looked like his mouth. On camera 2, she indicated that the black truck at the gas pump looked like his truck but couldn’t be sure. Her son acquired a black truck on his return to Elliot Lake.
[17] When she last saw her son August 26 or 27, 2018, he was wearing completely different clothing than that worn by the offender in the video of the robbery. On August 28, 2018, the police attended upon her and showed her three still photos or frames from the video entered as Exhibit 2 at trial. The police told her that they believe her son is the offender shown in the photos. She had never seen her son in the clothes worn by the offender. She recalls telling police that if they were sure the offender was her son, she would believe it to be him because of the state that he was in.
[18] During the aforesaid police attendance upon her, she was very upset and emotional. She knew that if arrested, her son would be taken into custody and be safe, which is all she really wanted. She acknowledged that her identification could be “clouded” by her emotional state and commitment to getting him off the street. She knew he wouldn’t voluntarily accept any help regarding his addiction. She attended the preliminary hearing in February 2019 but did not testify. She may have indicated at that time that she wasn’t one hundred percent sure that the offender was her son.
[19] Ms. Michaud has “waffled” over the past year-and-a-half as to whether the offender in the video is her son. She can’t be sure because she really can’t see his whole face and that the similarity in the walk and stance doesn’t mean it’s her son. She continues to have some doubt whether or not it is her son. On the matter of identification, she is “up and down” because “I can’t see him. He’s camouflaged.” She is 60 to 70 percent sure that it is her son but continues to have doubts. She acknowledged that the offender could easily be someone else.
Detective Brandon Leeson
[20] Detective Brandon Leeson, has been an OPP officer since August 2014 and at the relevant time, was stationed in Elliot Lake and was one of the two officers that responded to the radio call at 1:04 a.m. on August 28, 2018 regarding a robbery at the Esso service station. On arrival, Mr. Kirby identified himself and advised that the offender had just left in a black GMC pick-up truck on Highway 108, travelling north. The officer did not obtain an immediate description of the offender and ran to his cruiser focused on apprehending the black truck which he believed belonged to the accused. The other officer, Constable Wallback, remained to view the video footage and interview Mr. Kirby.
[21] Detective Leeson was called as another identification witness. On August 15, 2018, he had observed the accused’s black truck in a driveway on the officer’s residential street. There was no occupant in the truck. On August 16, 2018, he received a call from a relative of the accused expressing concern for Mr. Ethier’s wellbeing.
[22] On August 20, 2018, Detective Leeson was assisting another officer with an unrelated matter at the residence where he had previously observed the Ethier black pick-up. The accused was present, and Detective Leeson spoke to him regarding the wellbeing inquiry of August 16, 2018 over a period of 11 minutes. The officer has a “very good memory of the accused’s appearance from that conversation”. He described the accused’s appearance as a long slender face, unkempt, unshaven, a bit of straggly facial hair on his chin, orangish-red in colour as was his hair, and unshaven for a mustache. He appeared anxious, nervous and sweating. He observed the truck to have a white Rough Country sticker on the back window. His next observation of the accused was at the preliminary hearing during the accused’s attendance and the officer’s testimony of just under one hour. He did not make any notes of his observations of August 20, 2018 respecting the accused’s appearance at that time nor the accused’s appearance at the preliminary hearing. His identification of the accused as the offender in the video surveillance is based on the offender’s facial features, including his facial hair. Detective Leeson’s notes of Ethier’s appearance on the August 20, 2018 exchange were not made until August 28, 2019, following the robbery.
[23] With regard to the video, Exhibit 2, played at trial, Detective Leeson’s opinion evidence was that upon reviewing the totality of the video cameras, he can identify the offender in the red hoodie as the accused, Alexandre Ethier. His identification is based on the observations he made on August 20, 2018 having regard to the face, facial hair, straggly, unshavenness, long and slender face, bushy medium length hair, unshaven goatee style on his chin, with longish, orangish/reddish hair coming from his chin and unshaven mustache.
[24] The video of note supporting Detective Leeson’s identification is channel 15, between 12:55:03 and 12:56:14, which enables him to match the facial description of what he saw previously to the overall appearance of the offender’s face and the resemblance to the accused in court. His identification opinion is primarily based on the facial features associated with Detective Leeson’s observations during the 11-minute conversation on August 20, 2018. It isn’t based on mannerisms.
[25] With regard to his observations of the accused on August 20, 2018, Detective Leeson made no mention of the offender’s height, size, hands, body build, age, complexion, or presence or absence of any piercings. Factors of facial recognition of the accused was premised on the entirety of the face, including facial slenderness, length, nose, goatee/mustache, and unshavenness. He could see the long nose with some clarity, and it was unique to the person in the video. Detective Leeson disagreed with defence counsel’s suggestion that the offender’s face is not clearly shown in the video, but rather that the video clearly depicts the offender’s face. He testified that considering the totality of the facial features he was able to identify the offender as the accused with a hundred percent clarity. In addition to the 11-minute conversation on August 20, 2018, Detective Leeson also relied on having seen a glimpse of the accused outside his truck in the driveway of 124 Axsmith while the officer was driving home from work on August 15, 2018, shortly after 6:30 p.m.
[26] While on patrol following the robbery, Detective Leeson received a description of the offender from Officer Wallback who had remained to view the videos. He did not receive an identity of the offender from Wallback. From the time Detective Leeson was informed that the offender left in a black GMC pick-up truck, he immediately formed the belief that the offender was the accused considering the accused’s involvement in previous robberies.
[27] Detective Leeson was adamant that the video demonstrated the colour of the offender’s facial hair to be orange/reddish when the video footage was played at trial in stop and start segments. He was asked by defence counsel to isolate on the video footage where the offender’s facial hair can be seen to be orange/reddish. Video footage of camera 15 in the vicinity of 12:55:03 to 12:55:14 was played in stops and starts in increments of seconds or less. The witness was not able to isolate any point in the video that depicted any orangish/reddish facial hair. The particular camera 15 and timeframe coincides with the still-framed photos comprising Exhibit 3.
[28] Detective Leeson testified repeatedly that he was able to make his observation concerning the colouration of facial hair based on “the totality” of the video footage. On this aspect of his evidence, he affirmed that from viewing the video he concluded that the offender had orange/reddish facial hair but was unable to identify a video moment that illustrates the facial hair of the offender to be orangish/reddish.
[29] Although he noted an observation as to the accused’s height, he stated that in terms of identification he wasn’t testifying as to height; he was testifying as to the offender’s face. His identification of the offender in the video as being the accused is based on the facial features and that is what he relies on; not height or build, “just facial features”. In his identification of the accused as the offender in the video footage, he relies on the person’s nose; the long slender face; the unshaven part of the mustache; and the straggly, unshaven, unkempt orangish/reddish facial hair on the chin.
Detective Campbell
[30] He is an OPP officer who had involvement in this investigation regarding his interaction with Joanne Michaud on August 28, 2018. He attended her residence and obtained an audio statement from Ms. Michaud from which he prepared a synopsis. She informed him that her son Alex Ethier had been to her house the previous day looking for money and described his clothing which was different than that worn by the offender in the video surveillance. She was visibly upset and became more upset in the course of the interview. She indicated that if the police were telling her that her son’s black pick-up truck was involved in the Esso station robbery, then it would be him, if it was a hundred percent true.
[31] According to the synopsis, she advised Officer Campbell that when last seen the previous day, her son exhibited facial hair; not a full beard; that he’s not a hairy person but does have a little bit of facial hair. She didn’t believe he had hair on his upper lip. Detective Campbell testified that the offender in the video has facial hair and a mustache of some sort.
[32] Detective Campbell returned to the mother’s residence that day accompanied by Detective Constable Marshall Hutchinson. They provided her with the three still framed photographs that were entered as Exhibit 3 at trial. Detective Campbell had viewed the video surveillance and confirmed that the offender was not wearing the same clothing as that described by the mother when she last saw him on August 27, 2018.
Detective Steven Groot
[33] Detective Groot is an OPP officer who was requested to assist in the investigation of this robbery. He reviewed the general report of Constable Wallback at the Elliot Lake detachment. He undertook a search of the area looking for the black GMC Sierra pick-up truck involved in the robbery and shown in the video surveillance that he downloaded. He ascertained the full licence plate number and ran it through the MTO and determined the registered owner to be the accused. The MTO registration particulars set out in a certified true copy, dated September 6, 2018, was entered as Exhibit 5 at trial through this witness.
[34] The accused was arrested in the vicinity of Sudbury by the Sudbury Regional Police and his truck was taken to a nearby service centre where a search of it was conducted by Detective Groot pursuant to a search warrant. He photographed the vehicle, inside and out, and prepared a bound photobook containing 37 photos and which was entered through this officer as Exhibit 6 at trial. The photos were reviewed by Detective Groot. Photos 9 and 11 depict a pair of red-framed, tinted sunglasses, on the floor in front of the front passenger seat. Photo 34 depicts an empty Number 7 cigarette package of the brand taken in the robbery and found in the box of the truck. Photo 36 is an envelope with mail addressed to the accused at a Chelmsford address. Photo 37 depicts the Rough Country white decal observed on the truck involved in the robbery.
[35] In his cross-examination, Detective Groot acknowledged that the driver’s door was operable and functioned properly. Photos 13, 26 and 27 depict cigarette packages in the front console of brands different than those stolen in the Esso robbery. There were not any forensic investigations undertaken with respect to this robbery. The licence plates for this truck were issued to the accused on May 29, 2018. Detective Groot conducted a video interview of the accused at the Blind River OPP detachment on August 30, 2018. The video was played in the trial and stopped at 15:32. Detective Groot observed the accused to have facial hair of more than a couple day’s growth and which was dark. He viewed the video surveillance of the robbery and couldn’t determine the colour of the offender’s facial hair other than to say it was dark. The sunglasses discovered in the truck did not match the description given by the clerk, Mr. Kirby. The sunglasses found in the truck had a red frame with orange/blue tint. Detective Groot observed the sunglasses worn by the offender in the robbery video to be dark sunglasses, and the officer was unable to say exactly what colour they were.
Josee Ethier
[36] Ms. Ethier is the 30-year-old sole sibling of the younger accused and is the daughter of Joanne Michaud. She relocated from Elliot Lake to London, Ontario in 2008 where she has been continuously employed as a commercial insurance underwriter since 2010. She has had a positive relationship with her brother. She has remained in contact with him by cellphone and is aware of his drug addictions. In 2018 she returned to Elliot Lake on most long weekends and has only recently married.
[37] Prior to August 2018, she last saw her brother in June 2018. At that time the accused looked the same as he does in this trial except for his hair which was longer. She testified at his preliminary hearing and observed the video surveillance footage at that time. During her weekend visit in June 2018, she and her brother were both staying at her mother’s house in Elliot Lake. Previous interaction with her brother would have occurred on a weekend in April or May for either Easter or the May 24th holiday. Prior to that, likely for the Family Day weekend and at Christmas perhaps.
[38] Excerpts of the video surveillance from camera 14 and 15 were played for the witness and she was questioned in respect thereof. She testified that she recognized the location as the interior of the Esso service station store in Elliot Lake.
[39] When asked if she recognized the offender in red, she replied that she did not. Camera 15 was stopped at frame 12:55:12 and the witness was asked the following:
MS. TREMBLAY-HALL: Q. You see that person in the red outfit to the left of the screen?
A. I do.
Q. Okay. Can you see the face of that person?
A. Kind of.
Q. Okay.
A. Yeah.
Q. Do you recognize that face?
A. Not in the slightest.
Q. What about those hands or any other features of that particular person?
A. I do not.
Q. Can you distinguish the facial features of that particular person?
A. They’re wearing sunglasses, and I can’t tell by this stopped portion, but there was a lot of facial hair in the other part of the video.
Q. Okay. Have you known your brother to have facial hair on occasion?
A. From time to time.
Q. Can you help us out with the colour of his facial hair when it does come in?
A. It would be like very light in colour, like blonde.
Q. Okay. And does this person on the screen in camera 15 and the previous camera that we watched, 14, in red, does that person look like your brother Alex?
A. It does not.
[40] She denied that her identification evidence was tainted because the accused is her brother. In cross-examination, Ms. Ethier acknowledged the following with respect to the video frame on camera 15 at 12:55:13:
MR. DIDIODATO: Q. I’ll just ask my question again. Where on his face is it that you see facial hair in this frame?
A. Mustache and like goatee/chin area.
Q. Okay. So, I’m going to stop – or I have stopped the video here at 12:55:06. And you’d agree with me that you can’t see the same dark facial hair in this frame, is that fair?
A. Fair, yes.
Q. It actually appears this person has little to no facial hair.
Q. From this angle...
Q. The red person that is.
A. ...yes, but on the other angle there was clearly quite a bit of facial hair.
Q. Right. I’m going to suggest to you it’s possible, based on this video, that what appears to be dark facial hair at a prior video, 12 – at the prior frame where you noted it before, 12:55:13, is just shadowing on his face. Is that possible?
A. In the other video it also showed from the other angle, so sure, it’s possible, but it genuinely – or looks like he has dark facial hair.
Q. Okay. And a similar question – you said this person looks nothing at all like your brother Alex Ethier, but you’d agree it’s possible that that’s him in that video, is that fair?
A. It’s – yeah, it’s possible; could be anyone really.
Q. Well, could it be you?
A. No.
Q. So, it couldn’t be anyone.
A. Couldn’t be anyone, no.
Q. But it could be Alex.
A. Sure.
Q. It’s fair to say, and I think my friend touched on this, you don’t think Mr. Ethier committed this offence.
A. Correct.
ANALYSIS
[41] The singular issue is identity. The main identification evidence is that of the eyewitness clerk, Austin Kirby, and the recognition witnesses Joanne Michaud, Detective B. Leeson and Josee Ethier.
[42] The eyewitness identification of the clerk, Austin Kirby, must be evaluated with caution. The humanness of such evidence was addressed in R. v. M.B. 2017 ONCA 653 by R.G. Juriansz J.A. at para. 29:
Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person. See R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. CA.), at pp. 450-451, and R. v. A. (F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39.
[43] Similar caution is required in regard to evaluating recognition evidence, a derivative of eyewitness evidence. In R. v. Olliffe 2015 ONCA 242, Hourigan J.A. expressed at para. 39:
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. 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: R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.
[44] With respect to identification evidence in general, the passage from R. v. Hobbert, 2002 SCC 39, [2002] 2 S.C.R. 445 (S.C.C.) at para. 50 raises awareness that:
...the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it.
In other words, the trial court should be acutely attentive to the reliability of the identification evidence proffered through either eyewitness or recognition witness testimony.
[45] Further, the court is reminded that identification evidence is opinion evidence and the certainty expressed ought not to be confused with accuracy having regard to psychological and physiological factors. This concern was addressed in R. v. Miaponoose (1996), 110 C.C.C. (3d) p. 445 (Ont. C.A.) by Charron J.A. at page 451 in a case dealing with the issue of witness identification.
[46] At page 451, Justice Charron referenced an excerpt from the Law Reform Commission of Canada Study Paper (1983) on “Pretrial Eyewitness Identification Procedures” with the following example (at p. 10):
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.
THE RELIABILITY OF THE WITNESSES’ EVIDENCE
Austin Kirby
[47] The gas bar/store attendant gave his evidence in conjunction with and reference to the video surveillance, played in court without any audio, and was asked by the prosecutor to comment on aspects depicted primarily on Channel 14 and 15, and at approximately 12:55 a.m. on August 28, 2018 (Exhibit Number 2). Mr. Kirby testified that the person wearing a red hoodie, red pajama pants, and sunglasses with a black frame and purply/blue lenses came up to him at the till with the knife and demanded the money. The offender had nothing else on his face. He was calm and spoke in a low, deep voice.
[48] Mr. Kirby recognized the voice as that of a regular customer who came into the store quite a bit, and typically drove a black GMC pick-up truck and bought Number 7 cigarettes. He identified the accused in the courtroom as the regular customer. The offender took the money in the register, Number 7 cigarettes, lottery tickets, and left. Mr. Kirby had telephoned his girlfriend on his cellphone and she overheard the exchange between the attendant and the offender and summoned police. The offender had exited from the front passenger door and re-entered the same way. Mr. Kirby could not identify the driver.
[49] The cross-examination of Mr. Kirby elicited factors that address the reliability of his evidence. The event was traumatizing for him. It lasted “a minute or so”. He has difficulty recalling what was actually said to him. The offender only spoke a few words and it wasn’t until after his manager and police attended that “afterwards, I kind of processed it.” The police told him that the store had previously been robbed by Alex Ethier and that the black truck was his. It was only during the course of his reviewing the video several times with the police that he realized that he might know that voice. He relayed that police information to his girlfriend who the next day produced a picture of Alex Ethier sourced on Google. Based on the police information previously given to him and the photo on Google, Mr. Kirby concluded that the robber was Mr. Ethier. The Google photo was not produced or entered at trial.
[50] With regard to the frequency of which he had heard the voice of the customer that Mr. Kirby associated with the offender depicted in the video surveillance, he reduced the frequency from two or three times a week over an uncertain duration to not being able to recall how many times he heard the voice and was unable to narrow it down other than on multiple occasions, at least two times previously. Mr. Kirby acknowledged that he doesn’t have the greatest memory. He knew nothing of Mr. Ethier in terms of height or facial hair, if any. He had told the police the offender was around 5’ 9” which was incorrect as the accused is considerably taller. He had described the sunglass tint as blue/gold which was incorrect. Initially, he didn’t tell the police that he recognized the voice and it wasn’t until after they had told him the name of the accused. He was not requested to participate in a photo line-up following the robbery.
[51] At trial, he admitted that he changed his evidence respecting his description of the sunglasses worn by the offender to conform with that of sunglasses shown to him by police in September 2018 that were recovered from a search of the Ethier vehicle, shown in Exhibit 6, photos 9 and 11. At trial, he acknowledged from viewing the videos that the offender had facial hair but didn’t describe that feature to the police following the robbery. Mr. Kirby couldn’t describe the existence of hair or its colour.
[52] The first time Mr. Kirby had actually seen the person named Alex Ethier was at the preliminary hearing in February 2019 in Elliot Lake some six months later. He observed the accused to be considerably taller than 5’ 9”. At the time of the robbery and shortly thereafter, Mr. Kirby wasn’t one hundred percent sure as to who the person was that committed the robbery. At trial, he was more confident that it was the accused, “more so today”, considering that the police had told him the name of the offender; the picture on Google; the sunglasses shown to him in September 2018 by police recovered from the accused’s truck; media reports and police advice that the accused had stolen gasoline early that morning from a different gas bar; and that the accused had been arrested in the Sudbury area.
Joanne Michaud
[53] The mother of the accused had last seen her son Alex Ethier on either August 26 or 27, 2018. She couldn’t be sure. He attended her residence requesting money for gas and she gave him $5.00. She knew he was residing in Elliot Lake and had been for a few months but didn’t know where. He had recently acquired a new truck of the description of the truck involved in the subject robbery. When she saw him at that time, compared to at trial, his hair was longer than at trial but no other changes in his physical appearance. She corrected herself later to say that he had facial hair at the time and none at trial.
[54] In examination in-chief, she was shown the video surveillance footage primarily from Channel 14 and 15, between approximately 12:55 and 12:56 a.m., August 28, 2018. She had reviewed her own video statement and the gas bar videos that morning. She was asked if she could identify the person in red. She testified that considering “the way he walks”, “the way he stands”, “it looks like” the accused’s walk. She maintained that she knew how her son walks but couldn’t be one hundred percent sure it was him because she couldn’t see his entire face. Then she referred to the pictures she saw, referring to Exhibit 3, and pondered on his lips, big hands and his physique. Again she stated that it seems like his face, looked like his mouth, but couldn’t tell with the sunglasses. Lastly, that the vehicle at the gas pumps looked like his truck.
[55] In cross-examination, Ms. Michaud informed that her son had been working in Timmins during the previous year at a minimum and returned to Elliot Lake in June 2018. She had seen him at Easter of 2018 when he stayed with her until she discovered that he had relapsed regarding his drug addiction which was taking a significant toll on her throughout that summer. The police attended upon her August 28, 2018 and she described the clothing her son was wearing on his visit either August 26 or 27, 2018 which were completely different than those worn by the offender in the videos.
[56] The police attended upon her August 28, 2018 and showed her three still video frames, Exhibit 3. She indicated to them that if they were sure that the offender was her son, she would believe it given the dire straights that he was in. She understood that if her son was arrested and taken into custody, he would be safe and that is what she really wanted at that moment when she was really upset and emotional and would have done almost anything to get him off the street.
[57] Ms. Michaud attended her son’s preliminary hearing in Elliot Lake in February 2019 but did not testify and that she might have indicated that she wasn’t sure the person shown in the video was her son. She vacillated during the past year-and-a-half as to whether or not the offender in the video was her son. She testified that she can’t be sure if it is her son because she really can’t see the face. Although the offender walks or stands similar to her son, it “doesn’t mean it’s him”. She continues to have some doubt that it is her son “because I can’t see him. He’s camouflaged”.
Detective Brandon Leeson
[58] This officer has been with the OPP since August 20, 2014 and was stationed in Elliot Lake at the time of the robbery at the Esso gas bar/store. He was one of two officers that responded to the scene and arrived at 1:07 a.m. Mr. Kirby came out and informed Officer Leeson that the person involved was driving a black GMC pick-up truck and had just left northbound on Highway 108. He did not immediately get any description of the offender in his haste to apprehend the offender. He immediately ran to his cruiser and left the scene. Officer Wallback remained at the scene with Mr. Kirby.
[59] Officer Leeson believed the vehicle to be one known to him and he patrolled targeted areas where he had seen this vehicle from 1:12 a.m. to 5:50 a.m. without success. While patrolling he received “further” details of the suspect’s description from Officer Wallback at 1:15 a.m. who was reviewing video surveillance with Mr. Kirby. The vehicle licence plate number confirmed Officer Leeson’s belief that the vehicle being sought was indeed the one he was contemplating. He had previously spoken to the owner of the vehicle at a residence on the same street as that of Officer Leeson, later revealed to be on August 20, 2018. Officer Leeson had seen the black truck while driving home on August 15, 2018 and had received a call from Justin Merk on August 16, 2018 respecting the wellbeing of his “little cousin”, Alex Ethier.
[60] On August 20, 2018 at 1:00 a.m., Officer Leeson was accompanying another officer on a different matter at 124 Axsmith Street and by chance encountered the accused there and spoke personally with him regarding the wellbeing call of the cousin. The officer could see his long, slender face which was unshaven and with a bit of straggly facial hair on his chin and was “orangish-red in colour, as his hair is”. He was unshaven above his lip; appeared anxious and very nervous and kind of sweating. The discussion between the officer and the accused lasted for 11 minutes and served as the basis for the officer’s description of the accused’s face. He had no further personal involvement with the accused except for court matters, and testified for just under an hour at the preliminary hearing. The officer’s notes of his August 20, 2018 attendance, Exhibit 4, do not reference anything regarding the accused’s appearance or demeanour supporting identification. Officer Leeson was testifying on the basis of his independent recollection concerning those observations. He testified that he did make notes regarding the August 20, 2018 encounter but not until August 28, 2018. He did not make any notes respecting the accused’s appearance at the preliminary hearing.
[61] Officer Leeson viewed Channel 15, 12:54:57 to 12:56:13 respecting the identity of the offender and testified that based on the “totality” of the video surveillance the offender is Alexandre Ethier, supported by the observations of the officer on August 20, 2018 of the accused, including a long and slender face, bushy, medium length hair, unshaven, straggly goatee style on his chin,, and an unshaven mustache.
[62] The officer was then shown Channel 15, 12:55:03 to 12:56:14 and testified that this was the “video of note” that assists him in identifying the offender as Alexandre Ethier by matching the officer’s facial description of August 20, 2018, including long nose, slender face, unshaven straggly facial hair, and overall facial appearance which “resembles” the accused.
[63] In cross-examination, Officer Leeson acknowledged that his recognition identification of the accused being the offender shown in the video surveillance evidence is primarily based on the entirety of the facial features. It is his evidence that the video clearly shows the face of the offender. His recognition is based primarily on his 11-minute discussion with the accused on August 20, 2018 and the previous drive-by sighting of him on a driveway on the officer’s way home. Officer Leeson had immediately suspected the accused to be the only suspect in this robbery from the moment he received the description of the black pick-up truck considering the accused’s history of previous robbery and convictions.
[64] Officer Leeson returned to his detachment shortly after 3:49 a.m. August 28, 2018 to view the video surveillance repeatedly until 4:44 a.m. During that time and based on facial features apparent in playing the video in segments by momentary stop and starts, he could see the tinged colour of facial hair as orange/reddish. He did so to fortify his belief that the suspect, Alex Ethier, was the offender shown in the video before going out looking again for the accused.
[65] At defence counsel’s request, Officer Leeson was asked to demonstrate or isolate the point or points in time on the video that the orange/reddish colour of the straggly, unshaven facial hair could be seen. Considerable time was spent in attempting to do so with the assistance of the Crown. The officer was reluctant, if not evasive in acknowledging that he was unable to isolate in the video footage his observation of red/orange facial hair.
[66] The officer was not relying on any characteristics other than the face and facial features to positively identify the accused as the offender shown in the video surveillance. In conclusion, the witness testified that his identification of the offender in the video as being the accused was predicated on the nose, a reddish/orange goatee, straggly, unshaven, unkempt, a long face, and unshaven mustache.
Detective Ryan Campbell
[67] He and his partner, Detective Constable Hutchinson attended upon Ms. Michaud on August 28, 2018 with the three still frame photographs entered as Exhibit 3 to elicit identification of the offender shown therein. The photographs are numbered 1, 2 and 3 in the bottom left-hand corner of each. He had attended earlier that day and obtained an audio recorded statement from Ms. Michaud from which he created a synopsis. She informed that her son had been to see her the day previous asking for money. She provided a description of the clothing he was wearing. She was very upset over his drug addiction.
[68] Ms. Michaud indicated in the statement that if the police told her the robbery involved his black truck it would be one hundred percent true. She indicated that her son has a little bit of facial hair, not a full beard, and didn’t believe he had hair on his upper lip. Sergeant Campbell stated that the video appears to show the offender has facial hair, including a mustache of some sort. He had himself viewed the video surveillance.
Detective Steven Groot
[69] He is also an OPP officer who was involved in the investigation of the robbery. He reviewed the general report of Constable Wallback and conducted a search for the black GMC pick-up in the Town of Elliot Lake without any success. He downloaded the video of the robbery and determined the licence plate of the black truck to be AW36808 which he ran through the MTO databank for particulars of registration. The response was entered as Exhibit 5 at trial and established that the vehicle was registered to the accused on May 29, 2018.
[70] The Sudbury police came into possession of the vehicle August 30, 2018 upon the accused being arrested. Officer Groot photographed the vehicle and a compendium of the 37 photos was entered as Exhibit 6 at trial. Photos 9 and 11 illustrate a pair of red framed sunglasses with orange tinted lenses on the floor adjacent to the front passenger seat. An empty package of Number 7 cigarettes was located in the box of the truck. A different brand of cigarettes, DK’s, were located in the console. The driver’s door of the vehicle was operable and according to Officer Groot there was nothing wrong with the driver’s door. No forensic evidence was undertaken respecting either the truck contents or the Esso kiosk.
[71] Officer Groot interviewed the accused at the Blind River detachment on August 30, 2018 and a video recording was made. At that time, the accused had facial hair of more than a couple day’s growth and which was dark. He couldn’t comment on the issue of any colour of facial hair as one would have to be right in front of the individual to determine colour. He also viewed the video surveillance of the robbery and couldn’t determine the colour of the offender’s facial hair other than to say it was dark. He acknowledged that the sunglasses recovered in the black pick-up do not match the description given by the store clerk, Mr. Kirby.
Josee Ethier
[72] The accused is her younger brother and with whom she has a positive relationship. Although she moved to London, Ontario from Elliot Lake in 2008, she would see her brother on holiday visits to her mother in Elliot Lake, including most long weekends. She was aware of his drug addiction. She had last seen the accused in June 2018 while sourcing a wedding venue. They were both staying at her mother’s house. At that time, he appeared the same as he did at trial; no facial hair but a different haircut. She testified at the preliminary hearing in Elliot Lake. She had previously seen her brother in either April or May; Family Day weekend; and at Christmas.
[73] Upon viewing the video surveillance at trial, she identified the robbery location as the Esso gas bar and kiosk. She was asked if she recognized the offender shown on Channel 14 at 12:54;55 in red and she responded “no”. She was shown Channel 15 at 12:55:12 with her attention drawn to the face of the person in red. Asked if she could see the face of the offender, she responded, “kind of” and when asked if she recognized the face, she stated, “not in the slightest”, or the hands. On the subject of facial features, she testified that elsewhere there was a lot of facial hair. Her brother would have facial hair from time to time, but it would be very light in colour, “like blonde”.
[74] Ms. Ethier maintained that the offender in the videos did not look anything like her brother. His facial hair doesn’t grow in as depicted in the video and she honestly doesn’t recognize the face at all. She denied that her opinion was tainted because the accused is her brother. In cross-examination she indicated that the person’s facial hair appears to be black on the mustache and goatee/chin area. She agreed that it was possible that what appears to be dark facial hair in one frame is just shadowing on his face in another frame.
[75] Ms. Ethier acknowledged to the Crown that it was possible that the person shown in red in the video was her brother and that she didn’t believe her brother committed this robbery. The Crown entered as Exhibit 8 a copy of an email dated December 5, 2018 from her to the Crown’s office intended to inquire about her brother’s mental health while in custody and whether he was receiving the proper assistance as opposed to influencing the Crown to release him.
DECISION
[76] Quite apart from the identification evidence, there is circumstantial evidence that could arguably implicate the accused in the robbery. He was in Elliot Lake shortly before the robbery. The black GMC pick-up truck used in conjunction with the robbery belonged to him. His visit to his mother shortly before the day of the event to obtain money could be evidence of motive. The reported theft of fuel from another gas bar that same morning considering that his truck wasn’t fueled at the Esso station in the course of the robbery. He was a drug addict in dire straights shortly before the robbery according to his mother. Officer Leeson had observed him to be anxious, very nervous and sweating during their interaction on August 20, 2018. His cousin, Justin Merk, had inquired of the police on August 16, 2018 concerning the accused’s wellbeing and was worried about him. The accused had left Elliot Lake and was arrested in the Sudbury area on August 30, 2018. The accused apparently had a history of robbery related offences.
[77] The witnesses called to testify at trial were honest, forthright and credible, and I must be cautious in evaluating the certainty of the eye witness evidence of the clerk Austin Kirby and the recognition evidence of Detective Brandon Leeson in terms of its reliability.
[78] The concern that I have for the reliability of Mr. Kirby’s identification evidence arises from the influence of the police officers. He was told from the very outset that the offender was Alex Ethier, not that it could be him or probably was him, but matter of factly that it was him, a person unknown to Mr. Kirby. The police also told him that this person named Alex Ethier had previously robbed that store. Based on that immediate police identification told to him and which was not predicated on the results of a photo line-up, he obtained on the internet a photo of a person he believed to be this Alex Ethier individual. There was not any evidence led relating that photo to the appearance of the accused. It is unknown when the photo was taken; the context in which it was taken; characteristics of the person that could be associated with the offender shown in the videos or the accused present at the preliminary hearing and at trial.
[79] Mr. Kirby did not see the accused in person until he identified him at the preliminary hearing in February 2019, some approximate six months after the robbery and by a witness who in his own words doesn’t “have the best greatest memory”. The second opportunity for identification in person was at the trial, 14 months after the robbery, in circumstances in which the accused was accompanied by a police officer and was shackled. Mr. Kirby testified that he recognized the offender’s voice as that of a customer and being a “deep calmish” voice. The offender had only spoken a few words in uncertain volume and over a very brief period. Mr. Kirby did not relay this observation initially to the police and only after reviewing the videos and being told who they believed the offender to be. Mr. Kirby was incorrect in his description to police of the offender’s sunglasses and his height.
[80] He wasn’t sure shortly after the robbery who the offender was but believed the accused to be the offender at the preliminary hearing and in reference to the trial, “more so today”. He was also told by the police later the same morning as the robbery that Mr. Either had stolen gasoline from the Canadian Tire gas bar and that information served to further convince Mr. Kirby that the accused was the offender in the Esso gas bar robbery.
[81] Notwithstanding his repeated reference to the “totality of the evidence”, Officer Leeson’s identification is essentially based on an 11-minute conversation that he had with Mr. Ethier at 1:00 a.m. on August 20, 2018 by happenstance. Officer Leeson had accompanied another police officer on an unrelated matter at a residence and the accused was present. Officer Leeson engaged Mr. Ethier in furtherance of the wellbeing inquiry of his cousin. He did not make any notes of Mr. Ethier’s appearance nor of the discussion at that time. He only did so at some time following the robbery and his review of the video footage, arguably to support his recognition identification of the accused as the offender.
[82] Detective Leeson concluded that the perpetrator of the Esso robbery was Alex Ethier immediately upon learning on his arrival at the scene that a black GMC pick-up truck had been involved and well in advance of viewing the video surveillance. He was convinced that it was the accused without having received any description of the offender from Mr. Kirby but knew Mr. Ethier had a truck of that description.
[83] His recognition identification is based on his observations during the 11-minute conversation, contrasted with the offender’s facial features in the video. The term that Ms. Michaud uses to describe the offender’s face was that it was “camouflaged” and that she couldn’t “see his whole face”. Officer Leeson was adamant that the videos depicted an offender with orange/reddish straggly facial hair but was unable to isolate any depiction on the video that supported that evidence. He testified orangish-red in colour, “as his hair is”. That contention is simply unsupported by the video and still frame evidence.
[84] At the trial, I viewed the accused to be clean shaven with very short hair on the sides of his head with longer medium brown hair combed or slicked back on the top of his head. I am not able to identify the offender shown in Exhibit 2 and Exhibit 3 with any reasonable degree of assuredness as the accused. The hooded sweatshirt obliterates his head. It also serves to create a degree of shadowing around the perimeter of the face. The sunglasses are quite large and cover the majority of the upper portion of the face. The appearance in photo 1, Exhibit 3, depicts very little if any facial hair, while photo 3 depicts considerable facial hair that is very dark in colour.
[85] Both counsel contended at trial that the individual who would be in the best position to identify the offender in the video and still frames as her son would be his m other, Joanne Michaud. I accept that, notwithstanding the relationship of mother and son, she was doing her best to be forthright and candid with the court in the presentation of her evidence. Simply stated, her evidence on that issue was that it could be him but she couldn’t be sure and quantified her recognition in the percentage of 60 to 70 percent.
[86] She referred to the still photos, Exhibit 3, when commenting on the lips and hands as possible indicators of her son. However, the still frame photos are not sharp and comprise a degree of distortion. For example, the hands and faces of both individuals are shown to be hazy, grainy, muddled, unrefined and qualified. When contrasting the still frames, Exhibit 3, with the video Channel 15 at 12:55:06, 12:55:13, and 12:55:14, the depictions in Exhibit 3 are less than in the video and some of the foreground is lost which may be attributable to zooming in on the subjects or attempting to enlarge their appearance. Whatever was done to create Exhibit 3, it results in some distortion.
[87] Independent of my own inability to identify the accused, beyond a reasonable doubt, as one and the same person shown in Exhibit 2 and 3, I would reach the same conclusion or result when considering only the evidence of the witnesses who testified at the trial in this matter. I do have concerns about the reliability of the evidence of Mr. Kirby and Detective Leeson, both of whom were certain that the offender was indeed the accused. While concluding that the accused could be the offender shown in Exhibit 2 and 3, Ms. Michaud, his mother, was uncertain and Ms. Ethier did not recognize the offender as her brother.
[88] In the result, and upon a consideration of all of the evidence presented at trial, I find that the evidence does not rise to the required threshold in establishing beyond a reasonable doubt that the accused is the offender who committed the robbery of August 28, 2018.
[89] Accordingly, all three counts in the indictment are to be dismissed against Alexandre Ethier.
McMillan J.
Released: December 13, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALEXANDRE ETHIER
REASONS FOR JUDGMENT
McMillan J.
Released: December 13, 2019