Her Majesty the Queen v. Matthew Armstrong
COURT FILE NO.: 17-73
DATE: 20190131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Matthew Armstrong
Defendant
Matt Collins and Elaine Evans, counsel for the Crown
Henry Burr, counsel for the Defendant
HEARD: October 15-19, 2018 October 29, 2018 January 14, 2019 January 17, 2019
REASONS FOR JUDGMENT
lacelle, J.
[1] During a late summer evening in June of 2016, a Shoppers Drug Mart in Cornwall was robbed by two masked men. The Crown alleges that Adam Martin and Matthew Armstrong were those men. They say that both men planned and participated in the robbery.
[2] The trial started with both accused before the court. Following the decision of Mr. Martin to change his plea and the transfer of his matter to another judge, only Mr. Armstrong remains.
[3] The issue in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Armstrong participated in the robbery. While a number of offences in addition to robbery are charged, counsel agree that if the court is satisfied beyond a reasonable doubt that Mr. Armstrong was one of the two men who conducted the robbery, convictions would follow on all other counts.
Overview of the evidence and preliminary findings of fact
[4] A number of admissions were made in the course of the trial and the court had the benefit of an agreed statement of fact on a number of issues. In the summary of the evidence that follows, the bulk of the facts are proven beyond a reasonable doubt. I have indicated where there is an issue as to what is a proven fact, or the use to which certain facts may be put. In some instances, I also confirm my findings of fact.
The robbery
[5] The robbery occurred on June 20th, 2016. It was witnessed by staff at the Shoppers Drug Mart and customers in or near the store. These witnesses collectively report that two men armed with knives and wearing masks came into the Shoppers Drug Mart and made their way to the pharmacy area. Once there, they directed a staff member to open the narcotics safe. They took various narcotics and a decoy box carrying a GPS. They also took cash. They then made their way out of the store.
[6] Unbeknownst to the masked men, Ralph Williamson was in the parking lot when they first arrived at the store. Mr. Williamson observed as the men approached the store in a minivan, parked the minivan, and then ran into the store. Their faces were covered.
[7] Mr. Williamson quickly deduced that a robbery was underway. He instructed his wife to call 911 while he made efforts to slow their departure in the minivan they had left running in the parking lot. When he could not find keys in the vehicle ignition, he decided to move it to another location in the parking lot. He filmed most of this on his cell phone, including the men running to the minivan after they had exited the store [“Mr. Williamson’s video”]. Most critically, he filmed the license plate for the minivan.
[8] A good portion of the activity within the Shoppers Drug Mart was also captured on video [“the store video”]. The witnesses to the robbery were also asked about their recollections about the appearance of each of the men involved in the robbery. A general description emerges from their evidence, much of which is confirmed by the videotaped images.
[9] One man was taller and heavier than the other. Both men were masked. The larger man had a knife described as a box cutter type knife while the other had a knife that was similar to a steak knife. Both men were described as having dark hair.
[10] The store video and the still images derived from it show that the larger of the two men was wearing a red baseball cap with a black beak and had a red item tied around his face. He was wearing red gloves. One of the still images (Capture 5) shows the left sided glove. The fingers on the palm side of the gloves are black as is the area of the cuff. Another still image from Mr. Williamson’s video (Exhibit 1 slide 21) shows the right hand area of the perpetrator as he is running with a shopping basket in that hand. What is visible of the hand in the image is black in colour.
[11] The taller man is also wearing a long sleeved blue shirt, long black shorts and black sports type shoes (see Captures 1 and 2). On the right leg of the shorts, just above the knee, lettering in a paler colour is visible.
[12] The shorter of the men wore a white baseball cap.
[13] No tattoos or other discernible marks were observed by any of the witnesses on either man.
[14] Mr. Williamson’s video shows the perpetrators getting into the minivan and leaving the Shoppers Drug Mart parking lot. The taller man wearing red masking items gets into the driver’s seat. The smaller man with the white ball cap goes to the passenger side of the vehicle.
The immediate aftermath of the robbery
[15] The two men fled from the Shoppers Drug Mart at 21:03 hours. The first police officer arrived on scene three minutes later.
[16] Four minutes after the men fled the Shoppers Drug Mart, the minivan filmed by Mr. Williamson travelled onto Cornwall Island (part of the Mohawk territory of Akwesasne) by way of the Seaway International Bridge in Cornwall. The vehicle was captured on video at the toll both leading onto the bridge at 21:07 hours.
[17] The images caught on video at the bridge [“the bridge video”] include an image of the driver and the passenger. The passenger is wearing a white ball cap and is smaller in stature than the driver. The driver is a dark haired individual. A number of tattoos are visible on his left arm. He has some facial hair.
[18] The bridge video also clearly shows the vehicle’s plate number. It is the same license plate as on the vehicle driven out of the Shoppers Drug Mart parking lot by the perpetrators of the robbery.
[19] The parties agree and I find beyond a reasonable doubt that the vehicle depicted in the video is the same vehicle that was used by the perpetrators of the robbery to leave the scene. This conclusion is inevitable given the brief period of time that had elapsed from the time the vehicle left the parking lot of the Shoppers Drug Mart and the matching license plate number. This conclusion is also supported by the fact that the passenger in the vehicle is wearing a white ball cap. This is consistent with Mr. Williamson’s video showing the perpetrator in the white ball cap getting into the passenger side of the minivan after the robbery.
[20] Because one of the stolen Fentanyl boxes was equipped with a GPS tracking system, the movements of the vehicle were traceable. Police ultimately determined that the vehicle proceeded onto Cornwall Island to McCumber Road South where it was abandoned. From that point, the GPS further tracked north of Kawenoke Apartment Road, indicating the suspects walked from the abandoned vehicle a short distance to that location.
[21] Heavy rain overnight and an unrelated investigation in the area prevented a more thorough search by police the night of June 20th. The search continued the next morning when a portion of the stolen drugs was found near McCumber Road South in the bush. All of these locations are on Cornwall Island.
The allegation of planning
[22] Twelve days before the robbery, on June 8th, 2016, Matthew Armstrong began residing at a half-way house for federal offenders on parole. The house, known as the Tom Lamothe Residence [“TLR”], was located in Ottawa.
[23] On June 17th, three days before the robbery, the accused left that residence. He was observed by one of the staff members, Nolan Belleville, carrying a television and a stereo as he left. He did not sign out upon leaving. Mr. Belleville suspected Mr. Armstrong was not coming back. Consequently, he contacted Ottawa police and other officials. A warrant was issued for Mr. Armstrong’s arrest because he was unlawfully at large and violating his parole conditions.
[24] The accused’s room was searched the next morning by another employee at the residence, Craig Murphy. During this search Mr. Murphy discovered a tablet type computer. Mr. Murphy inspected the tablet to determine the accused’s location. It was not locked. Mr. Murphy accessed the Messenger application where he found a “chat”.
[25] Mr. Belleville also reviewed the “chat” and thought it was a suspicious conversation. As a result, he contacted Mr. Armstrong’s parole officer. Police were also contacted. Ultimately, the police obtained a search warrant and seized the tablet.
[26] The tablet was not password protected. It was suggested to Mr. Belleville that because Mr. Armstrong’s room was likely unlocked, the tablet was likely accessible to anyone. He agreed. One of the police officers who examined the tablet also agreed that it could have been accessed by others since it was not password protected.
[27] The Crown alleges that the conversation Mr. Belleville found suspicious was between the accused and an individual named Lewis Edwards. It started on June 9, 2016, one day after the accused arrived at the halfway house, and ended on June 16th, one day before he left.
[28] On June 12, 2016, the Crown alleges that Armstrong messaged Edwards “if u had the chance to do a thing, especially if i was at the wheel, u want in”. Edwards replied: “100%”. The next day, it is alleged that Armstrong messaged: “I’m doing research as we speak”. Later he said: “I am just working on a switch car because it is good to have one”.
[29] The following day, on June 14th, Armstrong allegedly messaged: “We can do this other thing, I have just give me some time to work it” and then asked Edwards how good he was at getting stuff from Canadian Tire dirt cheap. He said “I just need to get tool”. On June 15th, he is alleged to have said to Lewis: “The coolest part about the skin coloured gloves, got large and medium”. Edwards responded: “Sweet just what we needed”.
[30] Later on June 15th, Armstrong allegedly messaged: “p.s. I think I found a good plan”. Later that day, Armstrong allegedly messaged: “Haha don’t worry about the thing every detail is worked”. When Edwards asked where he was, the reply was “I’m at the law library”.
[31] In the early morning hours of June 16th, four days before the robbery, Edwards messaged the person said to be Armstrong: “100% I hate my life I’m ready for whatever let’s geter done. See you tomorrow”.
Two days after the robbery
The encounter with police on Cornwall Island
[32] Two days after the robbery, on June 22, 2016, the accused came into contact with police officers with the Akwesasne Mohawk Police Service [“AMPS”]. At 7:45 a.m. police were dispatched because the accused was in the yard of a resident of Cornwall Island. He was bleeding as a result of having been in a fight.
[33] The police vehicle that responded to the call was equipped with a dash cam video. As a result, much of the police interaction with the accused was caught on video [“the dash cam video”]. An audio recorder worn by one of the responding officers further recorded some of the accused’s interactions with police.
[34] The accused was questioned by one of the officers (PC Thompson) about whether he had been assaulted. The accused confirmed that he had. The assault occurred at a party on the west end of Cornwall Island. He said he didn’t know who had assaulted him and didn’t want to press charges. The accused also told the officer that he had been staying at “Puttie’s”. The officer knew “Puttie” was a nickname for Tina Benedict.
[35] While the defence cross-examined PC Thompson and suggested he might have misrecorded these utterances since his notes were not made at the same time, PC Thompson was firm in his evidence that this is what the accused told him. He said he did not confuse the accused’s utterances with any information from the resident of the house where police attended. I find nothing unusual in the manner in which the officer went about making his notes for this incident and I accept his evidence on this point.
[36] The accused was asked by a second officer (PC Mitchell) to provide an audio-recorded statement confirming he did not want charges laid. The accused agreed. He told the officer that he didn’t know who assaulted him and that he did not want charges laid. He said he just wanted to get out of there and go home. He indicated that the night before he had been with a friend who had nothing to do with what had happened to him. He said that friend was Adam Martin. This statement is clearly audible on the recording of the statement entered into evidence. I am satisfied beyond a reasonable doubt that the accused provided this information to police.
[37] Police confirmed the accused’s identification with various ID cards which confirmed a home address in Brantford, Ontario. Police also attempted to conduct a records check. While the check would normally take 2-3 minutes, in this case, it was much longer. By the time police received word at 8:25 a.m. that the accused was wanted on a Canada wide federal parole warrant, the accused had been placed in an ambulance and sent to the Cornwall Community Hospital. While one of the officers immediately contacted his supervisor and told him the officers would attend the hospital to execute the warrant, he was told to refrain from doing so since another police force would be asked to attend for that purpose.
The accused’s flight from Cornwall in a stolen vehicle (the “post-incident conduct”)
[38] Mr. Armstrong left the Cornwall Community Hospital prior to receiving treatment.
[39] Sometime after that, he stole a vehicle from a commercial enterprise in Cornwall and drove to Ottawa, where he committed a series of driving offences while evading police. By this time, the police had been alerted to the fact that the vehicle had been stolen. The GPS device in the stolen truck permitted the police to locate the accused as he continued to drive the vehicle. The accused was ultimately stopped by police and arrested. Upon his arrest, a number of photos were taken of his person.
[40] The photos show that Mr. Armstrong is wearing long black shorts with prominent lettering, paler in colour, on the lower part of the right leg above the knee. The lettering is on the side of the shorts. A tattoo is visible below the shorts on his right leg. He is wearing black sports type shoes.
[41] A series of photos show the tattoos on Mr. Armstrong’s left arm. He has tattoos on the entire length of his arm. Below the elbow he has a tattoo with four prominent dark bands.
[42] The Crown says that the accused’s flight from Cornwall is post-incident conduct which is a further piece of circumstantial evidence showing he was a participant in the robbery. While the defence agrees that the facts relating to the accused’s flight from Cornwall are admissible in the trial, since the accused’s flight from Cornwall is consistent with other explanations, it cannot lead to the inference sought by the Crown.
The evidence of Tina Benedict
[43] Tina Benedict has a criminal record with 40 convictions. It includes multiple convictions for drug and alcohol offences, as well as offences of dishonesty (fraud, theft, uttering a forged document and personation with intent) and offences against the administration of justice. She has a history of significant substance abuse.
[44] Ms. Benedict confirmed that Adam Martin is her cousin. He is the son of her uncle Louis and aunt Roberta, who she loved. She used to babysit him. At this point in their lives, she considers Adam a friend. She said her family is close-knit and she wants to continue being friends with Adam. She agreed she would not want to make up untruths about her family. She is trying to get her life back on track now and family support is important in that.
[45] At the time of the investigation of the robbery, Ms. Benedict lived at 1509 Island Road on Cornwall Island. She also used a nickname – “Puttie”. People used both her given name and “Puttie” to address her.
[46] Ms. Benedict confirmed that she used Facebook. After refreshing her memory from her statement, she said that Adam used the name Lewis Edwards on Facebook. She said she wasn’t sure if her statement had helped her to remember that or if she just knew it.
[47] When asked about the significance of that name, she said that their family name had been taken from them a long time ago and that it was originally Edwards. Her grandfather had been adopted and became a Martin. The name Lewis was a reference to Adam’s father. When she was asked if she was friends on Facebook with Lewis Edwards, she said she thought so.
[48] Ms. Benedict testified about a time when Adam stayed with her for about a week. She wanted to help him by giving him a place to stay. During this time a friend of his also came to her house. She refreshed her memory from her statement to police and said she read in that document that his name was Matt. She gave equivocal evidence about whether her memory had been refreshed by her statement.
[49] Ms. Benedict could recall no significant conversations with Matt. As to what Matt did at her house, she said he listened to music. She referenced his stereo. She said he made a point of emphasizing it was a prized possession of some sort. She recalled that the stereo was black and red.
[50] Ms. Benedict said that Adam was there when Matt was in her house. At the time the music was playing, she said she and the men were probably getting high because she was heavily into drugs at the time. She recalled that the men were at her house in the summer about 2-3 years ago.
[51] As for what Matt looked like, she said the only thing she remembered was that he had long dark hair and that he wore it in a ponytail. She could not say how long he had been at her house and suggested it was maybe a couple of days. She said he left before Adam did but she did not know where he went.
[52] Ms. Benedict testified about learning that the police were doing a search of her house. She had gone for a ride with Adam and her friend Stacy. She learned about the raid from her cousin when they stopped at a friend’s house. Adam was there when her cousin mentioned the raid. She said that she returned to her house but Adam did not come with them. He got out of the car at McCumber Road at the intersection of Cornwall Island Road. She did not know why. He just asked them to stop and he got out.
[53] After she returned to her house, the police asked Ms. Benedict to provide a statement. She knew they were investigating a robbery. By this time, she had heard rumours about a robbery of the Shoppers Drug Mart. She went to the police station and provided a statement. She testified that she had watched it since but did not remember any of it. She said she did not remember telling the police that she had confronted Adam and he said he did it.
[54] Ms. Benedict reviewed police photographs of items in her house. The photos were taken during the execution of the search warrant. Ms. Benedict did not recognize the red glove on the table in the living room. She said it was not hers. She did not know how it got there. She did not see either Adam or Matt with it or anything like it. She also identified a stereo in the living area and said she believed it was Matt’s stereo.
[55] A number of credibility and reliability concerns were apparent during Ms. Benedict’s testimony. For instance, she frequently indicated that she did not remember things and that she had problems with her memory. Problems with memory ran in her family. She repeatedly said she did not remember any of her statement to police.
[56] Ms. Benedict said she did not know if during her statement she was telling the officer the truth or not because when she was using drugs it was a normal thing for her to lie. She said that at the time she gave the statement she was under the influence of drugs including crystal meth, cocaine, marijuana, and Percocet. Another reason she said she could not say whether her statement to police was true was because she had a personal dislike for authority figures, especially police. She would make trouble with them “just for the hell of it”. In a meeting with Crown counsel prior to her testimony, she said she didn’t know if she told the truth in her statement because she didn’t like the police and she lied to them. She told the officer present for that meeting that she couldn’t tell when she was telling the truth anymore and that she was a compulsive liar.
[57] At another point, Ms. Benedict expressed frustration with questions from Crown counsel and said “I’m ready to tell you what you want to hear. You’re leading me in the direction of not telling the truth because I just want to get out of here”. Later still she told counsel she wasn’t really listening to his questions and wasn’t thinking when she answered him.
[58] During the Crown’s cross-examination of Ms. Benedict under s. 9(2) of the Canada Evidence Act, Ms. Benedict was asked about telling police that Adam was hanging around with a guy named Matt back then. She said she was not sure and that she didn’t know if it was the same date. She said she guessed it was true that Adam was hanging around a guy named Matt but she didn’t remember. When asked about his appearance, she said “I just remember long hair”.
[59] She was also asked again about other details she had told police. She said it was true that Adam had an account on Facebook under the name Louis Edwards. It was also true that she was with Adam the day she gave the statement to police and that she was in the car with Stacy that dropped him off at McCumber Road.
[60] Ms. Benedict agreed that she had no reason to want to get Adam in trouble with police. She agreed that at the time she gave her police statement she wanted the police to find Adam. She agreed she did not want to see Adam get hurt. She agreed that making something up about a family member would be worse than telling police the truth about them, and that it would be worse for both the family member and her.
[61] With respect to her testimony about Matt, by the end of her evidence Ms. Benedict said she did not recall if anyone had come to stay at her place with Adam, that she was not sure if Matt was at her house at the time, and she did not recall anything about the kinds of clothes he wore or any tattoos or markings he had.
[62] Ms. Benedict’s demeanour as she testified varied. However, at times she presented with heavy eyes and appeared to be nodding off to sleep. Ms. Benedict confirmed that she had received her methadone doses during the trial but that she also experienced insomnia at times on the nights prior to her testimony. She said she had probably used cocaine and marijuana on the day she had not come to court.
The search of Tina Benedict’s residence
[63] Three days after the robbery on June 23rd, 2016, police executed a search warrant at the residence of Tina Benedict. One of the items seized was a red glove. The glove was located on a table in the living area of the residence. It was made an exhibit at trial.
[64] The glove seized is for the right hand. The palm area of the glove is black and the other side is red. The cuff is also black. The word “CANUCKLEHEAD” is printed in white on a velcro strap on the cuff.
[65] The police also located a stereo in the living area. It is black, silver, and red in colour.
Additional evidence and the absence of evidence
[66] The minivan that was used by the perpetrators of the robbery was stolen from an address proximate to the Shoppers Drug Mart. It was stolen on the day of the robbery sometime after 20:00 hours (e.g. within an hour of the robbery). The ignition was “punched” permitting the vehicle to operate without keys.
[67] No forensic evidence linking the accused was located in the minivan nor on the recovered boxes of drugs. There is no forensic evidence linking the accused to the red glove found at Tina Benedict’s residence.
[68] No forensic investigation was done with respect to the messenger account linked to Lewis Edwards.
The governing legal principles
The fundamental principles of criminal law
[69] In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. That burden never shifts. An accused person is not required to prove his or her innocence. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence the accused must be acquitted.
[70] A judge must always determine whether the Crown has proved each element of every offence charged beyond a reasonable doubt. This will only happen when there is evidence that the judge accepts that supports each element the Crown is required to prove. It is also important to note that a judge can believe a witness but still be left with a reasonable doubt about what happened after considering all of the evidence.
[71] As for what is meant by “reasonable doubt”, it is not an imaginary, far-fetched or frivolous doubt, and it must not be based upon sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Probable or likely guilt is not sufficient to meet the standard in a criminal trial. But the burden of proof is also not impossibly high. The Crown is not required to prove its case to an absolute certainty.
[72] If at the end of the case a judge concludes only that the accused is likely or probably guilty, the accused must be acquitted. Before an accused may be found guilty, and face the consequences of a conviction, a judge must be sure that he or she committed the offence charged (see D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; and R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at paras. 36-40).
The evidence of Tina Benedict and Vetrovec principles
[73] Vetrovec warnings are a matter of judicial discretion and are not required in all cases of unsavoury witnesses: R. v. Brooks, [2001] 1 S.C.R. 237.
[74] I find that a Vetrovec type caution is necessary in this case with respect to the evidence of Tina Benedict, who is an important witness for the Crown. I have included in my summary of her evidence the elements of Ms. Benedict’s evidence that lead me to conclude it should be subject to special scrutiny. I am mindful that while it is open to a trier of fact to convict on unconfirmed evidence from a witness who presents with these types of issues, it may be dangerous to do so. In considering her evidence, I find it is important to look for evidence from another source that is confirmatory and provides some indication that she is telling the truth.
The Nikolovski principles
[75] R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197 at paras. 22-23 confirms that a trier of fact is entitled to reach a conclusion about identification based solely on videotape evidence. The trier of fact must carefully consider whether the video is of sufficient clarity and quality and shows the perpetrator for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt.
[76] Nikolovski further recognizes the following principles:
a. Video and audio tapes may provide cogent and convincing evidence of culpability or equally powerful and convincing evidence of innocence (para; 15).
b. A trier of fact may use his or her own senses in determining the weight that should be accorded to the evidence of an audio or video tape (para. 16).
c. The frailties of eyewitness identification are well known. A number of factors come into play with the human identification witness, including their physical position during the event, their ability to observe the event given their own characteristics (e.g. sound vision and good hearing), their ability to communicate what they observed, the quality of their recollection of the event, the effect of fear or excitement on their ability to perceive the event, and the possibility of bias or a biased perception of the event or the parties involved (para. 19).
d. Videotaped evidence does not suffer from the same frailties as evidence from eyewitnesses. The videotape “remains a constant, unbiased witness with instant and total recall of all that is observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture” (para. 21).
e. The weight to be accorded the evidence may be assessed from a viewing of the videotape. The degree of clarity of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames (para. 29).
f. Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence they must exercise caution in doing so. They must carefully consider whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt, and they must be mindful if this the only evidence adduced as to identify. A trier of fact must be satisfied beyond a reasonable doubt that it identifies the accused (para. 30).
[77] While in Nikolovski the trier of fact was comparing videotaped images with the accused as he appeared before the court, I see no reason why its principles would not apply equally to a comparison with other images that have been proven to be of the accused person. Similarly, I do not see why the Nikolovski principles would preclude a comparison of images as part of a circumstantial Crown case. That is, while a comparison of the images may not give rise to a finding of proof beyond a reasonable doubt, similarities in the images may be considered as part of a circumstantial case. No submission to the contrary has been made by the defence.
Circumstantial evidence
[78] For reasons I will provide later, I find that the case for the Crown is based entirely on circumstantial evidence. This means that the Crown must prove beyond a reasonable doubt that the accused’s guilt is the only reasonable conclusion that can be drawn from the whole of the evidence.
[79] A trier of fact must guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences and be vigilant about the path of reasoning involved in drawing inferences from circumstantial evidence. An inference of guilt drawn from circumstantial evidence must be the only reasonable inference that such evidence permits. The inferences that may be drawn from any set of facts must be considered in light of all the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: R. v. Villaroman, 2016 SCC 33 at paras. 29-30.
[80] It is important to confirm that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. To hold otherwise would reverse the burden of proof. As explained in Villaroman, “[t]he issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: para. 36. Accordingly, an alternative theory to guilt is not “speculative” only because it arises from a lack of evidence: Villaroman at para. 36, R. v. S.B., 2018 ONCA 807 at para. 131.
[81] As further directed in Villaroman at paras. 37-38
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt … I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” … “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [citations omitted, emphasis in original]
[82] Ultimately, circumstantial evidence does not have to “totally exclude other conceivable inferences”: Villaroman at para. 42, S.B. at para. 153. Further, alternative inferences must be reasonable, not just possible: Villaroman at para. 42.
The positions of the parties
The Crown
[83] The Crown says it is open to the court to conclude solely on the videotape evidence from the store and the bridge that the accused was the taller perpetrator of the robbery. The Crown says this identification may be made primarily on the basis of a distinctive tattoo that is seen on the same arm on the driver in the bridge video and the photos of the accused taken upon his arrest.
[84] Alternatively, the Crown submits that the similarities between the accused and the perpetrator form part of a larger circumstantial case that proves beyond a reasonable doubt that the accused was a participant in the robbery. This includes his presence on Cornwall Island in the days following the robbery, the similarity of some of his clothing to the images of the taller perpetrator in the store video, and the seizure of a glove similar to the gloves worn by the taller perpetrator in the store video at the residence of Tina Benedict after the accused had been staying there.
[85] The Crown further relies on the evidence that the accused fled from Cornwall in a stolen vehicle as demonstrative of his guilt. The Crown argues that this is because his flight is only consistent with his consciousness of guilt for his participation in the robbery, and because he has demonstrated a modus operandi in stealing vehicles to flee.
The defence
[86] The defence argues that while there are a lot of “suspicious factors” in the evidence, each can point towards an inference other than the accused’s guilt. The defence argues that the evidence of planning suffers from a number of frailties, including insufficient evidence as to who the participants in the chat were, and the lack of concrete details to the plan. Counsel points out that there is no evidence the perpetrators used nude gloves and argues there is no link between the chat and the robbery.
[87] The defence submits that the perpetrator’s clothing is not so distinctive and includes items that are mass produced. Accordingly, the court cannot conclude that the accused was wearing the same items on other occasions. Further, no witness gave evidence about seeing a tattoo on the perpetrator’s leg (as is present in the accused’s arrest photos) and the store video is of insufficient quality to confirm its presence.
[88] As for the bridge video, the quality of the video is such that the only thing that can be said is that the image of the driver is consistent with images of the accused. It does not permit the conclusion that the driver is the accused. Further, to the extent that a tattoo with prominent bars is visible, the court has no evidence as to how common or unique this pattern is. It allows only for the conclusion that the presence of the tattoo is suggestive. Without expert evidence, it does not permit conclusive identification.
[89] The defence highlights the reasons to disregard the evidence of Tina Benedict. He points to Mr. Williamson’s observation of another vehicle quickly leaving the parking lot after the minivan, and suggests someone else might have been involved in the robbery. Finally, the defence argues that there was no physical or forensic evidence connecting the accused to the offence. Counsel suggests such evidence could be expected to be found in the minivan, yet nothing was recovered.
Analysis
[90] I am mindful of the risks presented in cases involving circumstantial evidence. I have considered carefully what facts I accept as proven beyond a reasonable doubt and the further inferences these facts may, or may not, support. I also confirm that I have only engaged in a comparison of images of the taller perpetrator of the robbery with images that have been proven beyond a reasonable doubt to be images of the accused.
[91] With respect to my further findings of fact, I begin with consideration of whether the Crown has proved beyond a reasonable doubt that the accused was the person in the chat with Lewis Edwards.
The chat with Lewis Edwards
[92] I have considered that the tablet found in the accused’s room was not password protected and that it was therefore accessible to others. Nevertheless, I am satisfied beyond a reasonable doubt that the accused was the person who participated in the chat with the person using the name Lewis Edwards. I arrive at that conclusion following consideration of a number of circumstances and factual findings. They are as follows:
a. The tablet was found in the accused’s room within hours of him leaving the residence;
b. The accused was a resident at the TLR during the days the chat was active;
c. The chat ended the day before the accused left the TLR;
d. While I am alive to the fact that it was a possibility, there is no evidence of any interference in the accused’s belongings by others during the time he was resident at the TLR;
e. The photograph of the person posted in the chat is consistent with the appearance of the accused in other confirmed images of the accused (e.g. the Ottawa arrest photos and the dash cam video);
f. The chat is with a person named Lewis Edwards. For reasons I will amplify later, I am satisfied beyond a reasonable doubt that Adam Martin used the name Lewis Edwards on a Facebook account;
g. Within 6 days of the chat ending on June 16, 2016, I am satisfied beyond a reasonable doubt that the accused was on Cornwall Island with Adam Martin a.k.a. Lewis Edwards. I am satisfied beyond a reasonable doubt that this is the case because this is what the accused himself tells the officers from the AMPS on June 22, 2016.
[93] Given these circumstances, I find it defies coincidence that the accused is not the person in the chat with Lewis Edwards. I find there is no reasonable alternative explanation. I am satisfied beyond a reasonable doubt that the accused is the person in the chat with Lewis Edwards a.k.a. Adam Martin.
[94] With respect to the finding that Adam Martin uses the name Lewis Edwards, this is based on the evidence of Tina Benedict. Ms. Benedict offered a cogent and detailed account of why this name had significance and she confirmed that Adam Martin uses it. The significance of the name relates to their shared family history and the name of her uncle. I find that her evidence on this issue is not subject to the same concerns about her reliability as other aspects of her evidence, particularly the concerns that arise based on her drug use. Her knowledge of this fact and her memory of it are not based on a momentary event, but her family history.
[95] Further, as regards her credibility on this issue, Ms. Benedict has no reason to falsely implicate her cousin Adam in the use of the name Lewis Edwards. If anything, her evidence at trial was protective of Mr. Martin. Given these circumstances, while I am alive to the need for caution in deciding what facts I accept from the evidence of Tina Benedict, I am satisfied beyond a reasonable doubt that Adam Martin used the name Lewis Edwards on Facebook.
[96] In determining that I accept Ms. Benedict’s evidence on this point, I have considered what other confirmatory evidence exists to support her evidence generally. I find the following pieces of evidence from independent sources provides me with confidence that Ms. Benedict has been truthful with the court about a number of issues:
a. Ms. Benedict’s evidence that a friend of Adam’s named Matt was staying with her is confirmed by the accused’s statement to AMPS that he is a friend of Adam’s and he was staying at Puttie’s;
b. Ms. Benedict’s evidence that people called her “Puttie” is confirmed by PC Thompson;
c. Ms. Benedict’s recollection that the men stayed at her house 2-3 summers ago is generally consistent with the time at which the accused told police he was staying at “Puttie’s”;
d. Ms. Benedict’s evidence that Matt had a stereo that was a prized possession is confirmed by the evidence of Mr. Belleville who said that the accused left the TLR with a stereo;
e. Ms. Benedict’s evidence that the stereo was black and red in colour was given before she viewed a photograph of her living room taken by police during the search warrant. The photo, entered into evidence, shows a stereo with black and red markings;
f. Ms. Benedict’s evidence that Matt had long dark hair and that he wore it in a ponytail is consistent with images of the accused in the dash cam video at which time he said he was staying at “Puttie’s”;
g. Ms. Benedict’s evidence that after learning police were searching her residence Adam asked to be let out of the vehicle at McCumber Road accords with other evidence admitted by the defence. That is, McCumber Road is the road near which some of the drugs from the robbery were left. This seems an unlikely product of coincidence. There is no evidence to suggest that Ms. Benedict might have been aware of the significance of this road to the investigation.
[97] This is not to say that I accept the entirety of Ms. Benedict’s evidence. But to the extent that her evidence is relevant to my findings, I have considered that there is independent evidence to confirm some of her account. This gives me confidence that she has given some credible and reliable evidence.
[98] Given my finding that the accused was the person involved in the chat with Lewis Edwards a.k.a. Adam Martin, I am also satisfied beyond a reasonable doubt of the following facts:
a. The accused and Adam Martin were engaged in a plan that required gloves and a “switch car”;
b. Whatever they were doing required a “good plan”;
c. The plan was that the accused would be “at the wheel”;
d. This plan was developed in the week prior to the robbery at the Shoppers Drug Mart in Cornwall.
The accused was in the last known location of the perpetrators of the robbery 24-36 hours after the robbery
[99] I am also satisfied beyond a reasonable doubt that the last known location of the perpetrators of the robbery was on Cornwall Island, where they abandoned the minivan and set off on foot. The GPS tracker confirms this.
[100] Given his dealings with the Akwesasne Mohawk Police Service, I am also satisfied beyond a reasonable doubt that the accused was on Cornwall Island in the company of Adam Martin within a day of the robbery. This is because the accused tells the police that he was with Adam Martin the night before, which was June 21st, 2016. I find beyond a reasonable doubt that the accused was in the last known location of the perpetrators of the robbery approximately 24-36 hours after the robbery.
Other circumstances relevant to the identity of the perpetrator
[101] In addition to this set of circumstances, the Crown has presented evidence that the accused had a tattoo and clothing that are similar to that of the taller perpetrator of the robbery. There is also evidence that he stayed in the location where a glove similar to that worn by the taller perpetrator of the robbery was found by police three days after the robbery.
The tattoo on the left arm with prominent bands
[102] I confirm at this time that while there are similarities between confirmed images of the accused and the driver in the bridge video, it would be unsafe to conclude beyond a reasonable doubt based on that comparison alone that the person in the bridge video is the accused.
[103] This is because the bridge video is of poor quality. The lighting is poor. The images are dark and grainy. I have repeatedly reviewed the video. The time during which the image of the driver and passenger are captured is extremely brief. While the still images derived from the video permit closer scrutiny of the driver’s appearance the images are still very grainy. They are most clear when viewed on a very large screen in a darkened room. Having viewed the video and still images in these conditions, I am satisfied beyond a reasonable doubt about the details visible in the images which I discuss below.
[104] As far as the quality of the dash cam video and Ottawa arrest photos are concerned, they are of much better quality. The images in the dash came video are well lit and clear. The accused appears on that video for a substantial period of time. The Ottawa arrest photos are clear and focused. They include different views of the accused’s person and clear images of his tattoos.
[105] The still images distilled from the bridge video enable some comparison with these images of the accused. I conclude that the images of the accused captured in his arrest photos and the dash came video show a man with generally similar features and dark hair. The most compelling similarity is that the arrest photos of the accused and the bridge video of the perpetrator show multiple tattoos on the left arm. In particular, these images show a tattoo with prominent bands in the same general area of the left arm below the elbow. In other words, the accused has a distinctive tattoo that is similar to that of the driver/perpetrator in the bridge video.
[106] I have considered the defence arguments about the limits of this evidence. However, expert evidence is not required to support my conclusion, either because an “overlay” analysis of the distinctive tattoo is required, or to provide some insight into how common the pattern in the tattoo may be. I find that the pattern in the tattoo on the accused’s left arm, below the elbow, with prominent bands, is distinctive. This is not to say that it is unique.
[107] To be clear, I cannot conclude based on my comparison of the images alone that the images are of the same tattoo. I conclude only that the tattoos visible in the images are similar to one another.
The black shorts
[108] The arrest photos of the accused and the dash cam video also show the accused is wearing long black shorts with paler lettering on the right short above the knee. This marking on the shorts is distinctive. It is also very similar to the shorts worn by the taller perpetrator of the robbery. This is most strikingly apparent in comparing the images of the accused on arrest with a still of the taller perpetrator from the store video, side by side (see slide 43 of the Crown’s slide show during submissions; see also slide 29).
[109] Insofar as the store video is concerned, it is of good quality. The perpetrators of the robbery are captured on different cameras in the store and are visible from multiple angles. They appear on the screen for significant periods of time. However, the resolution of the images is imperfect, particularly for images outside the safe area where the drugs were stored. I am unable to make out any of the lettering on the shorts worn by the taller perpetrator visible from the video taken outside the safe. The images from inside the safe are more clear, but the perpetrators are also closer to the camera. In that video, for instance, the letters on the sweatshirt of the shorter perpetrator in the white cap are visible and clear.
The glove found during the search of Tina Benedict’s residence
[110] The store video and Mr. Williamson’s video show that the taller perpetrator of the robbery is wearing red gloves with black palms. A glove matching that description was found by police at the residence of Tina Benedict.
[111] The accused’s own statement to the police confirms that he was staying at the residence of a person named “Puttie”. I accept Ms. Benedict’s evidence that this is her nickname. As I have said, confirmation of that fact comes from PC Thompson. I conclude beyond a reasonable doubt that the accused was staying at Ms. Benedict’s residence at a time proximate to and after the robbery. This is consistent with Ms. Benedict’s evidence that Adam was staying with her along with his friend Matt in the time leading up to the execution of the police search warrant. I conclude beyond a reasonable doubt that a glove with similar characteristics as the gloves used by the larger perpetrator of the robbery was found at the place where the accused was staying after the robbery had occurred.
[112] Ms. Benedict says that Adam was staying with her and that he was with her when she learned police were executing the search warrant at her residence. Her evidence on this point is generally consistent with the statement of the accused to police on June 22, 2016 confirming he had been to a party with his friend Adam Martin and that he was staying at Puttie’s. I accept beyond a reasonable doubt that the accused and Adam Martin, who I have already found had engaged in a plan of some kind involving gloves and a switch car, were both staying in the place where police found a red glove similar to the gloves used by the taller perpetrator of the robbery.
Other items of clothing worn by the perpetrator
[113] There is also a similarity in the black sports shoes worn by the taller perpetrator of the robbery and those worn by the accused in the arrest photos and dash cam video. While the shoes are much less distinctive than the tattoo, black shorts, or red glove, as the defence concedes, they may be characterized as consistent in their appearance.
[114] The Crown argues that the blue shirt worn by the accused in the dash cam video and that of the perpetrator in the store video are the same. There are, however, differences in the appearance of the cut of the shirt in each video. The Crown may be correct that the perception of this aspect of the appearance of the shirt is affected by the accused’s posture. Nevertheless, given this point of dissimilarity, which causes me to have a reasonable doubt that it is the same shirt, I prefer not to give the similarities in the shirt any weight in my analysis.
The dissimilarities
[115] I also consider that there are dissimilarities between the appearance of the accused in the arrest photos and dash cam video and that of the taller perpetrator of the robbery.
[116] First, the accused has long dark hair. This is not apparent on the taller perpetrator in the store video. Nor did any eyewitness suggest that either perpetrator had long hair. One witness described scruffy hair. However, given the masking items worn by the taller perpetrator, including a hat, I do not find that the length of the accused’s hair is a distinctive feature that precludes a finding that he is the taller perpetrator in the store video.
[117] Secondly, the photos of the accused upon arrest show that he has a tattoo on his right leg. It is clearly visible in the area below the hem of the long black shorts. No witness to the robbery testified about seeing any tattoos on either man. As far as the store video is concerned, it is of insufficient clarity to conclude whether or not the taller perpetrator of the robbery has a tattoo in the same area. The most that can be said for the Crown’s case is that the image is darker in the area where the tattoo on the accused is located.
[118] Insofar as the observations of the eyewitnesses are concerned, they described two masked perpetrators armed with knives who set about robbing the pharmacy. I do not find it surprising in these circumstances that these witnesses would not have been paying attention to the lower leg area of one of the perpetrators. As noted in Nikolosvski at para. 20, “[i]t cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim and witnesses. Not every witness can have the fictional James Bond’s cool and unflinching ability to act and observe in the face of flying bullets and flashing knives”. Considering the evidence of the eyewitnesses in tandem with what is visible on the store video, I cannot say that the taller perpetrator either did or did not have a tattoo on his lower right leg.
[119] I also consider that none of the eyewitnesses to the robbery observed any tattoos on the arms of either perpetrator. Again here, given that both individuals were wearing long sleeves, the absence of such observations does not lead to the conclusion that neither perpetrator had a tattoo. Neither this evidence nor the store video goes any distance in establishing whether the perpetrators had tattoos on their arms or not. However, as I have said, the bridge video, which includes an image of the taller perpetrator without long sleeves, confirms beyond a reasonable doubt that the taller perpetrator had numerous tattoos on his left arm.
[120] Finally, the driver in the bridge video has some facial hair. No image of the accused is similar in that respect. Given that facial hair is not an immutable characteristic, and the more than 24 hours that elapsed between the time of the bridge video and the time the dash cam and arrest images were recorded, not much turns on the presence or absence of facial hair.
Skin coloured gloves
[121] As emphasized by the defence, the chat between the accused and Lewis Edwards a.k.a. Adam Martin includes reference to skin coloured gloves. There is no evidence that skin coloured gloves were used in the course of the robbery.
[122] Gloves, however, were used. While I am aware of this difference in the evidence of planning, there is also some consistency with the manner in which the robbery was carried out.
The totality of the circumstances
[123] Given the findings of fact I have made, I am satisfied beyond a reasonable doubt about the following circumstances:
a. The accused and Adam Martin made a plan to do “a thing” involving a switch car and gloves the week before the robbery. The plan was that the accused would drive.
b. While this plan is not explicit, this is not fatal to the conclusion that a plan was developed between the two men.
c. The language used in the chat about the plan is generally consistent with the offence which occurred – a robbery committed with a stolen vehicle.
d. The accused was in the last known location of the perpetrators of the robbery with Adam Martin 24-36 hours after the robbery.
e. The accused has features that are similar to those of the perpetrator seen driving in the bridge video. One of those similarities is the location of a tattoo with a similar pattern on the left arm below the elbow.
f. The accused and Adam Martin stayed at a residence where police found a glove with similar characteristics to the gloves worn by the taller perpetrator of the robbery.
g. Two days after the robbery the accused was photographed and videotaped wearing shorts with distinctive markings that are similar to the shorts worn by the taller perpetrator of the robbery.
h. The shoes worn by the perpetrator in the video and by the accused upon arrest are consistent in their appearance.
i. The dash cam video and arrest photos show that the accused’s stature and build are similar to the taller perpetrator in the store video.
[124] Given the totality of these circumstances, I am satisfied beyond a reasonable doubt that the accused is the taller perpetrator of the robbery.
[125] I am satisfied beyond a reasonable doubt that there is no reasonable alternative explanation for this constellation of facts. It defies coincidence that the accused has such similar features and clothing to that of the taller perpetrator and is in the same geographical area as the site of the robbery within 36 hours of that event after planning to do “a thing” with a switch car where he would be “at the wheel”, if he was not the taller perpetrator who drove the getaway vehicle away from the scene of the robbery. Add to that list of coincidences the fact that a glove with similar characteristics to that worn by the taller perpetrator is found in a residence where the accused stayed after the date of the robbery and the prospect of coincidence is even more remote. I am satisfied that all of these circumstances make out proof beyond a reasonable doubt.
[126] I have considered the dissimilarities in the appearance of the perpetrator as compared to the accused. For the reasons I have given, I find those dissimilarities do not detract from the weight of the totality of the circumstances which defy coincidence.
[127] I have also considered the absence of evidence further linking the accused to the robbery, such as forensic evidence linking him to the minivan used by the perpetrators. I do not agree that forensic evidence would necessarily be expected in the circumstances. While it is possible that such evidence might be obtained, its absence does not lead inevitably to the conclusion that the accused could not have been the perpetrator.
[128] While the defence has suggested isolated explanations for some features of the evidence, the evidence must be considered in its totality. I reject the suggestion that someone else was involved in the offence, based only on the evidence of Mr. Williamson’s observation of another vehicle leaving the parking lot quickly, as speculative. This theory also does not dilute the force of the evidence against the accused.
[129] I have also considered the possibility that the accused left the halfway house and met his friend Adam Martin on Cornwall Island but had nothing to do with the robbery. However, this alternative explanation cannot account for the evidence of a plan between the men, the similarity in the tattoo visible on the perpetrator in the bridge video, the similarities in the shorts worn by the accused and the perpetrator, and the similarity between the red glove found at Tina Benedict’s and the gloves worn by the taller perpetrator. As a matter of human experience, I conclude that this list of coincidences is not simply the product of bad luck. It is not a case of the accused having been in the wrong place at the wrong time wearing generic items of clothing and sporting a common tattoo.
[130] In the result, as expressed in Martin v. Osborne, 55 C.L.R. 367 at p. 374 and cited with approval in Villaroman at para. 40, I am satisfied that “according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed”. I am satisfied beyond a reasonable doubt that Matthew Armstrong is the taller perpetrator of the robbery.
Additional issues
[131] Before concluding my reasons, I confirm that I have placed no reliance on certain parts of the evidence adduced during the trial.
[132] Case law warns about the dangers of post-incident conduct to establish “consciousness of guilt” because of the danger of misuse by the trier of fact. In order to be properly considered circumstantial evidence of guilt, evidence of post-incident conduct, such as flight, must be capable of satisfying a number of inferences. As explained in R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129 at para. 42, “[t]o be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence”. Where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, such evidence has no probative value with respect to any particular offence: Arcangioli at para. 43; see also R. v. Adamson, 2018 ONCA 678 at paras. 62 and 64.
[133] In this case, the fact that the accused left a half-way house in violation of his parole conditions is an undisputed fact. I am unable to conclude that the accused’s flight from Cornwall two days after the robbery related uniquely to his participation in the robbery when he had just had contact with police who might reasonably be expected to learn he had violated his parole conditions. I give no weight to the accused’s flight from Cornwall in concluding he was the taller perpetrator of the robbery.
[134] As for the modus operandi theory, the evidence is insufficient to support the conclusion sought by the Crown. The evidentiary record includes one instance where the accused stole a vehicle whose keys were left in the vehicle. It would be unsafe to conclude that this evidence is so strikingly similar to the theft of the vehicle used in the robbery (which was stolen by “punching out” the ignition) that the accused has a modus operandi and must have been the perpetrator of both thefts.
[135] I also accord no weight to the opinion evidence given by the police officers who testified in this trial regarding similarities between the images of the driver in the bridge video and photos of the accused, or the similarity of the glove found at Tina Benedict’s residence to the gloves in the store video. I draw my own conclusions on those issues. I also do not rely on the Facebook photos obtained by the Cornwall Police. I do not find it necessary to do so given that there is no issue that other images in the evidence are of the accused.
[136] Finally, I confirm that I have not based any of my analysis on evidence heard during the trial that was admissible only against Mr. Martin, such as the evidence regarding his statements to Ms. Benedict. I further confirm that the change in plea indicated by Mr. Martin before me has no bearing on whether the evidence presented by the Crown is sufficiently strong to prove beyond a reasonable doubt that the accused participated in the robbery. I have not relied on Mr. Martin' change in plea in any way.
Conclusion
[137] In the result, for the reasons set out above, the accused is found guilty on all counts charged.
The Honourable Justice Laurie Lacelle
Released: January 31st, 2019