COURT FILE NO.: CR-18-5-581

DATE: 20200226

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMED MUSE FARAH and MOHAMED IBRAHIM ULUSOW

Defendants

Alice Bradstreet, for the Crown

Laurence Cohen, for the Defendant Mohamed Muse Farah

Talman Rodocker, for the Defendant Mohamed Ibrahim Ulusow

HEARD: November 12-14, 19-22, 24-28, 2019

spies j.

Reasons for Judgment

Overview

1In the months of May and June of 2017, there were 13 robberies or attempted robberies of male customers using Automated Teller Machines (ATMs) located in bank vestibules in the west end of Toronto. The Defendants were initially charged with all 13 robberies, but they were discharged on five of those robberies at the conclusion of their preliminary inquiry. They are now before this Court on the remaining robberies.

2As a result of these robberies, members of the 23 Division Major Crime Unit (MCU) launched an investigation. On June 22, 2017, officers from the MCU set up static surveillance on two different Toronto Dominion (TD) Banks. One of those banks was located at 2700 Kipling Avenue (“Kipling”) and had been the location of these types of robberies on five occasions between May 6 and May 31, 2017. At approximately 2:54 a.m., Ricardo Hamilton entered the Kipling TD Bank vestibule. At that time, two males that the police had been watching, and whom the police believed were watching the bank from a park across the street, crossed the street and moved towards the bank, while covering their faces using bandanas. They both entered the ATM vestibule of the bank where Mr. Hamilton was using the ATM machine. At this time, police approached the bank and arrested the two males; the Defendants.

3Mr. Farah is facing a total of 23 charges; one count of conspiring with Mr. Ulusow to commit robbery, contrary to s. 465(1)(c) of the Criminal Code; six¹ counts of robbery and one count of attempted robbery, contrary to s. 344(1)(b) of the Criminal Code; seven counts of robbery while having his face masked, contrary to s. 351(2) of the Criminal Code; seven counts of robbery while using an imitation firearm, contrary to s. 85(3)(a) of the Criminal Code and one count of carrying a concealed weapon; a meat cleaver, contrary to s. 88(2)(a) of the Criminal Code.

4Mr. Ulusow is now facing a total of 19² charges; one count of conspiring with Mr. Farah to commit robbery, contrary to s. 465(1)(c) of the Criminal Code; five counts of robbery and one count of attempted robbery, contrary to s. 344(1)(b) of the Criminal Code; six counts of robbery while having his face masked, contrary to s. 351(2) of the Criminal Code; and six counts of robbery while using an imitation firearm, contrary to s. 85(3)(a) of the Criminal Code.

5The Defendants elected trial by judge alone at the conclusion of their preliminary hearing.

The Issues

6Apart from Mr. Farah who argues that he is not guilty of an attempted robbery of Mr. Hamilton on the day he was arrested, the Defendants do not dispute that the other alleged robberies were in fact robberies. The only issue with respect to those robberies is whether or not the Crown has proven beyond a reasonable doubt that Mr. Farah was Perpetrator #2 in those robberies and Mr. Ulusow was Perpetrator #1 in those robberies.

7I heard from the police officers involved in the surveillance of the Defendants on June 22, 2017, as well as all the persons who were robbed or almost robbed. In each case the Complainants were not able to identity the persons who robbed or attempted to rob them save in very general terms, because those persons had hoodies over their heads and their faces covered save for their forehead and eyes. Apart from the last robbery, the Defendants deny that they were involved in any of the other robberies. Although their evidence was at odds in certain respects, they both testified that the first time they became involved in a robbery was when they were arrested on June 22, 2017.

8Mr. Farah takes the position that the Crown has not proven any of the charges against him. Even with respect to time of his arrest, it is his position that the Crown has not proven beyond a reasonable doubt that he was engaged in an attempted robbery of Mr. Hamilton or the related charges, including that he had a meat cleaver in his possession for the purpose of committing that robbery. Mr. Ulusow, however, in his evidence admitted that he intended to rob Mr. Hamilton and thereby admits his guilt with respect to the attempted robbery of Mr. Hamilton, including that he had his face masked and that he had in his possession an imitation firearm; Counts 22-24.

9As a result, the central issue at this trial is the identification of the perpetrators in each of the other robberies before this Court.

10The Crown’s theory is that the Defendants worked in concert with an unidentified accomplice to effect these robberies and that at least some of the time they used an older model Honda CR-V as a getaway vehicle. A search of that vehicle revealed property belonging to the robbery victims, and a firearm that resembles the firearm used in some of these robberies.

The Crown’s Similar Fact Application

11The Crown brought a similar fact application seeking an order permitting this Court to rely on the evidence that relates to each count as admissible evidence of the identity of the Defendants on all counts. Ms. Bradstreet argued that a group of three individuals had a specific modus operandi, that the clothing of each of the three individuals is similar in each count and that the counts are closely interwoven and interrelated such that the totality of the evidence on one count should be admitted on all counts.

12I heard all the Crown’s evidence with respect to each robbery or attempted robbery on a voir dire blended with the trial, since the evidence formed the basis for the various counts in the Indictment. This application was argued at the end of the Crown’s case and for oral reasons and written reasons given, I granted the application; see R. v. Farah, 2019 ONSC 6737.

13In coming to this conclusion, I found that if the Crown’s application depended only on the similarities in the way the robberies were committed, without considering the clothing worn by the perpetrators, all the Crown had was what could be considered generic characteristics of an ATM robbery. However, what made the application different was the clothing alleged to have been worn by the three men during each robbery and in particular, the clothing of two of those men that the Crown asserts are the Defendants. Ms. Bradstreet’s position on the application and at the end of the trial was that some of the clothing worn by each of the three individuals is unique and similar in each count and, given what the Defendants were wearing upon their arrest, that is the link for each of the Defendants to the robberies they are charged with that took place before June 22, 2017. It is the Crown’s position that the ringleader was Mr. Ulusow, the person she referred to as Perpetrator #1 on the videos and that Mr. Farah was the person she referred to as Perpetrator #2. I will refer to the video evidence using these terms but obviously without any finding at this stage as to whether or not those persons were in fact the Defendants as alleged.

The Evidence and Preliminary Findings of Fact

Relevant findings from my Similar Fact Decision

14Many of the findings of fact that I came to on the similar fact application are of assistance to my determining whether or not the Crown has proven any of the charges against the Defendants. The evidence of the Defendants did not change any of those findings. The robberies in issue had the following similarities:

(a) The acts all occurred in the same geographical area, namely in the west end of Toronto;

(b) Each robbery occurred in the very early morning hours under the cover of darkness between 12:25 a.m. and 3:43 a.m.;

(c) In each case the Complainant was male and was about to use, using or had just finished using an ATM in an ATM vestibule of a major bank;

(d) There were two or three perpetrators and, in some cases, a fourth person in a get-away car – in fact now I would say there are at least four perpetrators;

(e) The perpetrators were black males;

(f) They were masked and usually wearing gloves;

(g) Weapons were displayed; always a firearm and sometimes an edged weapon;

(h) There was a use or threat of violence;

(i) The person identified by the Crown as Perpetrator #1 was always seen wearing a bleach stained blue hoodie, and was the ringleader in that he directed the others and used the Complainant’s ATM. As already stated, the Crown alleges this person is Mr. Ulusow;

(j) Each Complainant was confined by a member of the group while Perpetrator #1 used the ATM;

(k) Each Complainant’s PIN was demanded of them;

(l) Some of the Complainants were robbed of personal items as well as cash;

(m) Perpetrator #2, whom the Crown alleges is Mr. Farah, was wearing a combination of up to five specific clothing items.

15I found that the manner in which the robberies were conducted did not raise these series of crimes to the level of a distinct modus operandi or the signature of a group. Despite these similarities, in my view conducting an ATM robbery in this way is not that unusual.

16When Mr. Ulusow was arrested, he was wearing a navy-blue hooded sweatshirt that has a distinct six-inch stain on the right sleeve, just above the elbow, that is pink in colour, which based on its appearance was likely made by bleach. It is wider at one end and tapers towards the end of the stain. Whether or not this stain was caused by bleach or something else does not matter - it is clearly not part of the original design. I found that because of the bleach stain that this is a unique piece of clothing (the “Bleach Stained Hoodie”).

17Mr. Ulusow was also wearing what he described, as bright khaki pants, dark charcoal Jordan shoes with white soles and interior red lining. He was wearing a black t-shirt with white print and a black bandana that covered his face when he entered the bank and a gray headband. When he came into the ATM, he had a white tank top that he was using to hide the firearm. He did not have any gloves on.

18I also found that save for the attempted robbery of Mr. Gennuso on June 10, 2017, the person the Crown identified as Perpetrator #1, whom the Crown alleges was Mr. Ulusow, was wearing the Bleached Stained Hoodie and the bleach stain is visible in the videos from each of the other robberies Mr. Ulusow is charged with. I also found that given the presence of one of the perpetrators wearing this Bleach Stained Hoodie in each of these robberies, that it was likely that the same person committed the alleged similar acts as Perpetrator #1.

19The Crown’s theory is that Mr. Farah is Perpetrator #2 and that he wore some combination of five clothing items in each of the robberies he is alleged to have committed. It is only suggested that one of these items is unique. The Crown relies on the fact that some combination of these clothing items (two or three) was worn in each of the robberies and that when Mr. Farah was arrested, he was wearing two of those items. The Crown also relies on the manner in which Perpetrator #2 was wearing pants over his shorts. In particular those five items are as follows:

(a) A grey hooded sweatshirt with “Canada” written across the front in black cursive lettering, (“Canada Hoodie”). The Canada Hoodie appears in the robberies on June 8, 11, 15and 18, 2017 (both Cutajar and Attard). The back of the Canada Hoodie has some sort of an irregular white spot or stain roughly in the middle of the back, and this spot can be seen in varying degrees of clarity in all of these robberies. I found that the Canada Hoodie is unique because of this spot that can be seen on the back of it, but that this hoodie was not always worn by one of the perpetrators in the robberies before this Court and in particular was not worn by Mr. Farah at the time of his arrest;

(b) A hooded black jacket with a full zipper, two zippered front pockets with neon/lime green pulls and a neon/lime green lining (“Black Jacket”). A Jacket that looks like this appears in the robbery on June 10, and Mr. Farah was wearing a jacket that looks like the Black Jacket on June 22, 2017. There is no evidence to suggest that this Black Jacket is unique in any way;

(c) A pair of black track pants with three white stripes, which appears to be the logo of the Adidas brand, running vertically on each side of the pants from the ankle up the leg, stopping mid-thigh. The stripes end at an angle, each slightly longer than the one before it (the “Adidas Pants”). Pants that look like these appear in the robberies on June 10 (Iwankewycz), June 11 and June 15, 2017. There is no evidence to suggest that the Adidas Pants are unique in any way;

(d) Dark shorts with a thick grey vertical stripe on each side, flanked by two narrow white stripes (the “Striped Shorts”). Shorts that look like this appear in the robberies on June 8, June 10, (Iwankewycz) and June 15 and Mr. Farah was wearing a pair of shorts that look like this on June 22, 2017. There is no evidence to suggest that the Striped Shorts are unique in any way.

In the videos when shorts of this description are visible, it appears that they are sitting at the waist of the person alleged to be Perpetrator #2 and if there are pants overtop, they are either what looks like the Adidas Pants or plain grey sweat pants that are sitting a few inches below the waist, thus showing the top of the shorts. The male wearing what appears to be the Striped Shorts, also wears the "Canada hoodie" during the robberies on June 8th and 15th. There are several other robberies in which the "Canada hoodie" and the Adidas pants are visible;

(e) White running shoes with distinctive black markings (the “White Shoes”). There is no evidence to suggest that the White Shoes are unique in any way;

(f) Also of significance is the fact that the individual who was wearing the Canada Hoodie or what looks like the Black Jacket during each robbery was either wearing what looks like the Adidas Pants or a plain pair of grey sweatpants.

20I found that in each of the robberies committed before the alleged attempted robbery on June 22, 2017 that Mr. Farah is charged with, one of the perpetrators was wearing some combination of these five clothing items and in each case at least two of those items and sometime three of those items. Although I found that apart from the Canada Hoodie, the rest of these items of clothing could not be considered unique, given the combination of similar looking items, I found that it was likely that the same person committed the alleged similar acts as Perpetrator #2. Furthermore, I found it relevant that in all but the robbery on June 15, 2017, this person was in the company of Perpetrator #1, the man wearing the Bleached Stained Hoodie, which in my view, further reduced the chance of coincidence.

21At the time of his arrest, the Crown’s position is that Mr. Farah was wearing two of the five items; a jacket that looks like the Black Jacket seen in the robbery of June 10th. He was also wearing plain grey sweatpants with shorts underneath that look like the Striped Shorts, also seen in certain videos. I would add that the manner in which Mr. Farah was wearing the pants was that the shorts were sitting at his waist and the sweatpants were sitting at his hips so that the top of the shorts was exposed. In addition, Mr. Farah was wearing all white Nike running shoes that do not look like the White Shoes and he was wearing an orange Nike fleece jacket underneath the Black Jacket. He had in his possession a pair of black and grey knit gloves which he was wearing during the attempted robbery as well as a dark mask that was covering his face.

22Finally, the Crown alleged that it is relevant that there was a third perpetrator on some occasions (Perpetrator #3) and that on those occasions that person can be observed to be a black male, wearing a black hooded jacket that had a horizontal stripe across the back and dark blue pants that have vertical stripes up the sides (collectively the “Striped Jacket and Pants”) and black Adidas running shoes. Clothing that looks the same was found in the Honda that was seized by police along with black Adidas running shoes and two cellphones that were taken during these robberies. I found that this evidence further reduced the chance of coincidence.

23I also considered the fact that the Honda, which is alleged to be the get-away vehicle, was only observed at most in three robberies. I found however that some of the Complainants were not in a position to see whether or not there was a get-away vehicle. I also found that it was also possible that in some cases the perpetrators ran to their vehicle and that it was behind a building or otherwise not in view of the ATM vestibule.

Observations of the Defendants by Det. Allen

24Det. Allen began his surveillance of the TD bank at 2700 Kipling at 12:30 a.m. on July 22, 2017. He was in an unmarked police vehicle in plain clothes but had a vest on that said “POLICE” across the front and the back. Det. Allen was in the parking lot of the plaza about 30 metres from the bank. He testified that at 12:52 a.m. a customer entered the ATM vestibule of the bank. At that time, he saw two individuals in the park across from the bank come out of the north end of the park. They ran in a diagonal direction towards Kipling through an opening in the fence up to the boulevard and then they returned to the park. He could not say if they were masked and he did not see any weapons. He watched them for the next couple of hours until they ran towards the bank just before he called a takedown. Det. Allen was not asked if he made any other observations of the males prior to calling the takedown.

Observations by D.C. Xiouris

25D.C. Xiouris testified that he was had been watching 2700 Kipling until Det. Allen took over at 12:30 a.m. I am not sure where he went thereafter but given his involvement in the arrest of the Defendants, he must have continued surveillance in the area. D.C. Xiouris testified that Officer Day went into the bank at 1:10 a.m. and he went in as well as some point and nothing happened. He also testified about someone who parked his vehicle in front of the bank at 2:18 a.m. and then went into the bank and then sat in his vehicle for about 30 minutes until D.C. Xiouris spoke to him and asked him to leave. D.C. Xiouris received some information about Det. Allen’s observations of the man in the brown pants, which would be Mr. Ulusow, at this time but as Det. Allen did not give this evidence, I did not consider it.

Arrest of the Defendants

26Det. Allen who called the take down at 2:54 a.m., got to the bank within seconds. As he exited his vehicle, he had his gun drawn. The individual with the gun (Mr. Ulusow) ran past him but he took the other person to the ground. There is no dispute that this person was Mr. Farah. After his arrest Det. Allen did a pat down search and discovered a large black handled meat cleaver in Mr. Farah’s outer jacket pocket – seven to eight inches long by four inches wide with a six-inch handle. Det. Allen admitted that he did not see this or any other weapon out at any point. Det. Allen identified this man as Mr. Farah and identified Mr. Farah in court.

27When the take down was called, D.C. Xiouris, who was also involved in the surveillance of the TD bank at 2700 Kipling, drove into the plaza and parked in front of the main doors to the bank. Like the other officers he was in an unmarked police car, in plain clothes and a police vest. He observed a male (Mr. Ulusow) with his face concealed, with a firearm in his left hand exiting the bank. He announced: “Police Stop, Drop the weapon” and he saw the male throw the firearm toward the north fence line and he heard a clunk. D.C. Xiouris ran after the male across Kipling and was able to tackle him when he lost his balance. He was having difficulty in controlling the male when D.C. Matthew Ellis arrived to assist him. As a result, Mr. Ulusow was arrested at gunpoint. After his arrest, officers seized a black firearm from the area that Mr. Ulusow had disposed of it. There is no dispute that this was in fact an imitation firearm. I find that it was in Mr. Ulusow’s possession before he was arrested.

28D.C. Ellis had also been assigned to do surveillance in the early morning hours of June 22, 2017. He too was in an unmarked police car and in plain clothes with a police vest with “POLICE” across the front. D.C. Ellis was originally assigned by Det. Allen to another location. At 12:52 a.m. Det. Allen told him to come to 2700 Kipling because he had seen two men “stalking” the bank. On arrival he was told to stand by. At 2:54 a.m. when Det. Allen ordered a take down, D.C. Ellis drove to the bank in about 10 seconds. Det. Allen and D.C. Xiouris and PC Day were already on scene. On arrival he saw a male running towards him, and he saw that he had what appeared to be a firearm in his left hand. The male did not comply with his instructions to stop and so he removed his firearm and pointed it at the male. The male discarded the firearm and kept running. He knew that other officers were present and so he went to assist Det. Allen and PC Day who were struggling with the other male but was told they were fine. D.C. Ellis then retrieved the firearm that was discarded by the male, which was where he saw him pitch it with his left hand. He secured the firearm in D.C. Xiouris’ vehicle. D.C. Ellis then went to assist D.C. Xiouris who was struggling with the male on the ground. D.C. Ellis stated that a black bandana with white emblems was covering the male’s face during the scuffle. He was arrested and a pat down search was done, and no further weapons were found. D.C. Ellis identified this male in court as Mr. Ulusow. When he testified Mr. Ulusow admitted that he was the person who attempted this robbery of Mr. Hamilton.

The robberies that are the subject of the charges before this Court

a) Robbery on June 8, 2017- Paul Robinson - Scotia Bank – 2251 Islington Ave (401 and Islington) – 12:55 a.m.

29Mr. Robinson had just arrived at the bank and he was pulling out money to pay a bill. As he was doing so, he turned around and saw three guys who were masked. They looked Somalian, in their early 20’s. He was told to “turn the fuck around” and “get away from the machine”. The third guy was at the ATM and was shorter than him (he is 5’10” to 5’11”) and did not have a weapon. Base on the video evidence I find that this man was wearing the Bleach Stained Hoodie; Perpetrator #1. They got his wallet and took out his two bank cards and were yelling at him for his pin. Perpetrator #1 took $1,000 from his account. He testified that the taller man had a gun and the other a knife. The man with the knife was about his height. The man with the gun was an inch or two taller than he was. He pulled the top of the gun back and said it was loaded, that he had just gotten out of jail and that he did not give a fuck about going back. Mr. Robinson testified that he was pushed into the corner with his back against the glass. The person with the knife was right beside him, pushing him. He was doing most of the talking. They were speaking in English and he could not detect an accent. They dropped his bank cards on the ground and ran off. He ran to his car to call the cops. His phone and wallet were in his vehicle. He did not know if they just ran away or got into a car.

30The video of this robbery shows a black male wearing the Canada Hoodie and shorts that look like the Striped Shorts showing underneath a pair of grey sweatpants, which are hanging down below the waist and running shoes that could be the White Shoes; Perpetrator #2. He appears to have a gun in his right hand. The third perpetrator is the one who searched Mr. Robinson’s pockets and held him back who I believe had the knife. He had a baseball cap on under his dark hoodie and he was wearing dark sweatpants. There was nothing unique about his clothing. This is the only robbery before this Court where one of the perpetrators is wearing clothing like this. As I will come to, there is no dispute that this third person was not the person whom the Crown refers to as Perpetrator #3.

b) Robbery June 10, 2017 – Peter Iwankewycz – TD Bank, 5731 Highway 7 (Martingrove and Highway 7 in Woodbridge) - 2:52 a.m.

31Mr. Iwankewycz testified that he went to the bank to deposit a cheque from work. I find from the video evidence that the first man that came in was wearing the Bleach Stained Hoodie, a mask and white gloves; Perpetrator #1. He was also wearing khaki coloured pants. The second man that entered was holding a gun and wearing what looks like a Striped Jacket and black Adidas running shoes but with dark grey sweat pants; Perpetrator #3. Both perpetrators were masked with their hoods up.

32Mr. Iwankewycz testified that they told him that they had a gun and a knife and told him to go against the wall and face the wall and then go onto his knees. One of the men (Perpetrator #3) put a gun to his back and on the video, he can be seen moving Mr. Iwankewycz back away from the ATM. Perpetrator #1 told him that if he moved, that the man would pull the trigger and shoot him. Perpetrator #1 also told him that he i.e. Perpetrator #1, had a knife and if he did not get what he wanted he would stab him. Perpetrator #1 went through his wallet and withdrew $500 with one of his cards. When he was unsuccessful with other cards, Perpetrator #1 ripped off his chain, took his ring and “sucker punched” him in the face.

33While the robbery is in progress, a man wearing what looks like the Black Jacket with the hood up and a mask and what looks like the Adidas Pants over what looks like the Striped Shorts and shoes that look like the White Shoes; Perpetrator #2 comes into the bank. His outer jacket is open, and it looks like he is wearing another hoodie underneath. Mr. Iwankewycz referred to him as the third person and testified that he must have been a look out because when he came into the bank a second time, he saw a car go through the drive through and he told then that they had to go.

34Mr. Iwankewycz testified that they took the $500 cash they could get from his bank cards, his cell phone, a necklace worth $3,000 that was of great sentimental value as it was given to him by his grandmother and his graduation ring, also of sentimental value as it cannot be replaced.

35Mr. Iwankewycz chased them outside, and they went into a getaway car that was moving. Two got into the back seat and the third into the front passenger seat. Accordingly, there must have been a fourth person – the driver, who had stayed in the car. Mr. Iwankewycz described the car was an older model smaller SUV, like a Rav4 or Jeep, that was not in the best shape. It was black with tinted windows. He did not notice this car when he came in.

36Mr. Iwankewycz described the men as all black, in their late teens or early 20’s. He assumed Perpetrator #1 was older because he was the one giving the commands and he appeared to be the ringleader. Perpetrator #1 was heavier, possibly by 10 to 20 pounds than the other two men who were skinnier but a bit shorter – one to three inches than Perpetrator #3.

37Mr. Iwankewycz heard all three men speak. They had an accent that he was not familiar with but when pressed he would say African.

c) Robbery June 11, 2017 – Sivakumar Panchundcharam – Scotia Bank – 1825 Dundas Street East (Dundas and Walton Drive in Mississauga) – 12:30 a.m.

38Mr. Panchundcharam testified that he went to the bank at about 12:30 a.m. to withdraw money. After he did so, and as he was leaving the bank, a man pointed a gun at him, and told him it was a robbery and that he had to go onto his knees. I find from the video evidence that this first man was wearing the Bleach Stained Hoodie and white gloves; Perpetrator #1. Mr. Panchundcharam saw two guys behind him. All three had their faces covered. He thought that the guy in the grey hoodie asked him to punch in his pin. He had black gloves. Although in the video evidence the word “Canada” on the front of the grey hoodie is not visible, the stain can be seen on the back and so I am satisfied that this man was wearing the Canada Hoodie (Perpetrator #2). Perpetrator #2 was also wearing clothing that looks like the Adidas Pants and the White Shoes. In this case if Perpetrator #2 is wearing shorts underneath the Adidas Pants, they cannot be seen.

39When Mr. Panchundcharam told Perpetrator #2 that he had reached his limit, he punched him. The man on the right took his debit and Visa and other cards and put them in a second ATM machine. The man at the top right asked for his watch, which he valued at $2,000. This man had his hands on his shoulder holding him down. This man, Perpetrator #3, was wearing clothing that looks like the Striped Jacket and Pants and the black Adidas running shoes. On the video he can also be seen holing a gun in his right hand.

40Mr. Panchundcharam testified that the three men were black, quite young, slim and he thought they were all pretty well the same height. He is 5’7” tall and they were all taller than him, he estimated 5’5” to 5’10’ tall. They all had their faces covered. They were speaking English with no accent that stood out. He was focused on the guy with the gun at the ATM; Perpetrator #1.

41The men were not able to get more money from his account but took the $1,000 that he had withdrawn. When they saw that someone was coming, they dropped his wallet and took off, taking his cards and his watch. They ran away around to the back of the building - he did not see a vehicle.

d) Robbery June 15, 2017 - Joseph Yang – TD Bank, 4141 Dixie Road – 4:00 a.m.

42Angelo Donatelli was across the street at the time Mr. Yang was robbed. He saw a vehicle driving erratically and then pull up in front of the TD Bank. It was a late model dark coloured SUV with a loud muffler that looked similar to a Honda CR-V. He saw two individuals get out of the car and then get back in and the car took off. Mr. Donatelli testified that there must have been a driver that stayed in the car given how quickly it left. He saw a person (Joseph Yang) stagger out of the bank and get in his car and leave. Mr. Donatelli drove to the front of the bank and he saw blood on the door and so he went to the police station to report what he had seen.

43Joseph Yang went to the bank at about 4:00 a.m. to deposit some money. He saw two persons with dark skin colour, and they asked him for money. He said he did not have any money, but they saw that he had money in his wallet - $1,200 which they took. The first person asked for the money and was holding a gun. He asked him to insert his bank card into the ATM and he said that he did not have money on that card. The first person then asked him for his car keys. He refused to give them, and they had a struggle. He was pushed to the ground and this person used the stock of his gun to hit Mr. Yang in the mouth, which caused him serious injury. They ran out and he got up and ran after them. He saw them get into a black jeep or a style similar to the kind the military uses, and they took off. He was not sure if there was a third person in the car.

44Mr. Yang described the first person as having dark coloured skin-close to an ordinary black person, who spoke English like a “normal person” when he asked Mr. Yang for money. The second person also had a non-shiny silver gun at his side the whole time – maybe at his waistband, he did not take it out or say anything. They were wearing dark clothing and their faces were covered. He did not recall their shoes at all.

45Based on the video evidence I find that the person the Crown refers to as Perpetrator #2 was there and wearing the Canada Hoodie, what looks like the striped Shorts under what looks like the Adidas Pants and what looks like the White Shoes. The person the Crown refers to as Perpetrator #1, with the Bleach Stained hoodie is not seen on the video. Perpetrator #3 had his gun out and he was wearing what looks like the Striped Jacket and Striped Pants and black Adidas running shoes.

e) Robbery June 18, 2017 – Marsel Attard - TD Bank, 430 Brown's Line –1:00 a.m.

46Mr. Attard went to the bank at about 1:00 a.m. on his way home from work to deposit some money. The parking lot was empty except for one car at the back of the parking lot. It was a black Honda CR-V-maybe a late 90’s or a Suzuki Trakker with tinted windows and it was sputtering. He left his car running and went inside and deposited the money. Two guys came into the bank. Mr. Attard testified that he did not pay attention to them at first but when he turned back, he saw that one guy had a knife or screw driver or a homemade shive that he flashed at him. He could only see the handle – he could not see a blade. Based on the video evidence both men were wearing bandanas. I find that this man was wearing the Bleach Stained Hoodie -Perpetrator #1. Perpetrator #1 did all the talking.

47The other guy was holding a gun-all he could see was the end of the butt. I find, based on the video evidence that this man was wearing the Canada Hoodie and clothing that looks like the Adidas pants, with what looks like the Striped Shorts showing underneath and shoes that look like the White Shoes; Perpetrator #2. There were only two men in the bank.

48Mr. Attard is 5’5” to 5’6” and testified that one guy (Perpetrator #2) was young, in his early 20’s and taller than him; 5’11” to 6’ and slightly skinnier than the other one. The one who was speaking (Perpetrator #1) was 5’8” to 5’9”. He believed the men were Somalian from the way they talked although he said that the only one who spoke was the man he gave his bank card to; i.e. Perpetrator #1.

49Mr. Attard testified that he gave the wrong pin at first because he was nervous but then he told the guy that he could get $1,200. He was told to empty his pockets and Perpetrator #1 went through his wallet. The other guy, Perpetrator #2, took his keys and went to his car and did not return. They ran out and got in the SUV and they were driving off as he ran out. When Mr. Attard got in his car, he realized that they had taken his cell phone. He got it back later from police – it is the Samsung Galaxy phone that was found in the Honda when it was searched.

f) Robbery June 18, 2017- Brett Cutajar – TD Bank, 250 Wincott Drive – 12:28 a.m.

50Mr. Cutajar testified that he was robbed by two guys. The first guy was masked and wearing a black/grey hoodie and Adidas Pants and he had a gun in his hand, and he came in first. Based on the video evidence I find that this man was wearing the Canada Hoodie and clothing that appears similar to the Adidas pants, similar to the Striped Shorts showing underneath and shoes that look like the White Shoes; Perpetrator #2. Mr. Cutajar told Perpetrator #2 that it was not a real gun and that “you’re not getting shit”. The man was confused. Mr. Cutajar explained how he knew it was not a real gun.

51The other guy, whom I find was wearing the Bleach Stained Hoodie and white gloves; Perpetrator #1, then came in with a knife. Mr. Cutajar had been stabbed before and testified that it wasn’t worth $100 and there were two of them. He believes that he gave Perpetrator #1 his pin and he got $100 from his account. They also took his iPhone which he got back later. He confirmed it is the iPhone that was found in the Honda.

52Mr. Cutajar described the men as black and probably younger than he was. They were taller than him-he is 6’tall and so they were maybe 6’2”. They maybe spoke in an African accent but not Jamaican - he though maybe from Somalia. He was not touched or injured in any way. He did not see a car and did not see how they got away.

g) Attempted³ Robbery June 22, 2017 - Ricardo Hamilton – TD Bank, 2700 Kipling – shortly before 3:00 a.m.

53Mr. Hamilton had just finished work for the night and went to an ATM to make a deposit shortly before 3:00 a.m. He did not notice anything suspicious when he arrived at the bank. He was only at the ATM for 13 to 15 seconds and was trying to get the cheque for deposit out. He looked briefly over his shoulders and noticed that two people who did not have their faces showing had come in. He thought it was possibly a holdup. Mr. Hamilton testified that no weapons were brandished that he saw, and he did not hear anything, and no words were spoken. Before he had a sense of what was happening, he turned around again and saw that the police had come in. He saw all of the lights from the police vehicles outside. They arrested the two persons – the Defendants.

54The video evidence shows the following. The Complainant enters the bank at 2:50:30 a.m. and the Defendants come in about two minutes later. Mr. Farah entered the ATM vestibule first and he was through the second interior door as Mr. Ulusow entered the first door. Both of their faces are covered and they both had hoods up over their head. Mr. Ulusow has what I presume is the white T-shirt recovered at the scene in his hands. No weapon is visible at this point. A few seconds later, Mr. Farah is standing behind Mr. Hamilton and it appears that he is reaching into the inside of his left jacket. It is the Crown’s position that he was reaching into his jacket for the meat cleaver. Seconds later it looks like Mr. Ulusow sees the headlights of the cars coming into the parking lot through the window and Mr. Farah is turning around as well. At this point, both Defendants are by Mr. Hamilton who is out of sight. As Mr. Ulusow turns around and there is a good view of the gun in his hand. At 2:52:31 a.m. Mr. Ulusow is running out of the ATM and is first to reach the interior second door. Mr. Farah is behind him and they are both running out. They are out of the bank at 2:52:36 a.m.. The Defendants were in the bank for about 19 seconds.

The seizure and search of the Honda CR-V

55Det. Allen admitted that between 12:52 a.m. and 2:50 a.m. on June 22nd he did not make any observations of a Honda CR-V while he was watching the TD bank at 2700 Kipling. D.C. Xiouris also admitted that he did not see the Honda CR-V while he was watching 2700 Kipling. D.C. Xiouris however who had been watching 2737 Kipling at an earlier time, testified that at 2:03 a.m. he saw a black Honda CR-V leaving 2737 Kipling.

56Det. Ellis and D.C. Xiouris seized the Honda CR-V (“Honda”), license plate BXXS483, VIN: JHLRD1852XXC807228 and sealed it. It was located at a parking lot at 5 Rountree Road unoccupied, which is one kilometre due south of 2700 Kipling. They followed it as it was towed by police to 23 Division where it was secured pending a search warrant. Det. Ellis testified that he had no further involvement with the Honda. A search warrant to search the Honda was obtained.

57The search of the Honda was conducted by Officer Homiuk, a Scenes of Crime (“SCO”) Officer who broke the seal on the Honda and seized and photographed the contents. Officer Homiuk did not testify when he executed the search warrant on the Honda but given it was only seized the night before and given the evidence of D.C. Joshi, which I will come to, I find that he must have done so the day after the arrest of the Defendants; June 23, 2017. Of relevance inside this vehicle Officer Homiuk found:

a) A black toque (“Black Toque”) that has DNA of Mr. Ulusow. I will come back to the significance of this but note here that this black toque was not worn by any of the perpetrators of any of the robberies before this Court;

b) A Procast Puma black backpack containing a Samsung cell phone and an iPhone. There is no dispute that these are the cell phones that were stolen from Messrs. Cutajar and Attard when they were robbed;

c) In a drawer under the rear passenger seat a CPSport gun and pellets;

d) An Institute of Power Engineers black bag which contained a black jacket and a pair of navy track pants that look like the Striped Jacket and Pants and black Adidas running shoes worn by the person the Crown alleges is Perpetrator #3 in some of the robberies. Based on the photographs introduced into evidence the Black Toque was found in this bag;

e) A pink backpack with Mr. Lube receipts for a 1998 Honda CR-V, dated June 20, 2017. The VIN number on the receipts matches the VIN of the Honda. The name of the customer on the receipts is Khalil Malcom with an Etobicoke address. There are also two copies of a CV for Khalil Nesbeth-Malcom in the same backpack. There was no evidence called as to who this person is or whether or not this person is the owner of the Honda;

f) A Tommy bag found under the carpeted rear hatch with white rubber gloves inside.

58Unfortunately, Officer Homiuk was not asked what he did with these items. The next evidence I heard about them came from D.C. Joshi. D.C. Joshi testified that on June 23, 2017 he removed the following items from the property locker:

a) A black toque (i.e. the Black Toque”);

b) A Samsung cell phone and an I-Phone;

c) A CPS4 BB gun;

d) Black jacket with grey stripes;

e) Blue track pants with a white stripe;

f) A pair of black Adidas running shoes;

g) Some Mr. Lube receipts;

h) One grey glove and

i) White rubber gloves.

59D.C. Joshi testified that all of these items were in one property locker although he could not say whether or not these items were stored separately or all together inside the locker as he had no notes about this. He did not say where this locker was although later, he referred to this locker as a “temp locker”, which I take to mean a temporary locker. This makes sense as D.C. Joshi was dealing with these items on June 23, 2017, the day after the arrest of the Defendants. He separated certain items; namely the Black Toque, the blue track pants, the black Adidas running shoes and the grey glove and arranged for them to be sent to the Centre of Forensic Sciences (“CFS”) for DNA analysis. He gave specific evidence about sealing the black toque which satisfies me that there is no issue with the continuity of this item from the time that D.C. Joshi retrieved it from the locker to the time of its arrival at the CFS. He sent the other items by courier to the property unit to be held. This included the BB gun which was not sent to CFS for analysis. I presume from this evidence that the locker where these items were originally kept was a locker located at 23 Division and that the property unit is at some other location.

60Photographs of the clothing that Mr. Ulusow and Mr. Farah were wearing at the time of their arrest were taken by Officer Randall and entered into evidence without this officer being called. D.C. Xiouris testified that he seized a white tank top that he noticed on the ground outside as evidence. I did not hear what happened to this. There was no evidence from Officer Randall as to where these items were or how they were being stored when the photographs were taken.

61D.C. Xiouris was the officer who seized some of the clothing that Mr. Ulusow was wearing at the time of his arrest, including the Bleach Stained Hoodie. He did not say what he did with these items, but he testified that when he was reviewing various video clips from the TD Bank robberies, he noticed a design on one of the hoodies; namely what I have concluded is a bleach stain on the Bleach Stained Hoodie. He testified that he had not appreciated the significance of this initially as he did not know much about the case. As a result, he “ordered the property back to 23 Division” to see if this mark was on the hoodie seized from Mr. Ulusow. As a result of what he saw he arranged to have additional photographs of the Bleach Stained Hoodie taken, including close ups of the stain. In cross-examination Mr. Rodocker did not ask him to clarify what he meant when he said he ordered the property “back” to 23 Division but clearly his evidence suggests that at this point this property was no longer at 23 Division.

The Black Toque and the evidence of Monica Sloan from CFS

62There is no dispute that Mr. Ulusow’s DNA was found on the Black Toque but there is a serious issue as to how that DNA got there.

63Mr. Ulusow testified that he did not recognize the Black Toque found and it was not his and he had never worn it.

64The Crown called Monica Sloan, a forensic scientist with CFS and I accepted her as an expert witness on the issue of the examination of items for the presence of blood, semen and saliva and DNA testing and her reports were entered into evidence.

65Ms. Sloan testified that she took a swab from the inside opening of a toque, which I find was the Black Toque. She found an amount of DNA that exceeded the minimal threshold; it was at the ideal level. Ms. Sloan could not say what bodily fluid this DNA was found in. She found two DNA profiles. She compared them to a DNA sample from Mr. Ulusow and concluded that the probability that a randomly selected individual unrelated to Mr. Ulusow would coincidentally share one of the DNA profiles was estimated to be one in more than one trillion.

66Not surprisingly, as a result of this evidence there was no dispute that Mr. Ulusow’s DNA was inside the Black Toque. Ms. Sloan testified that Mr. Ulusow’s DNA could be inside the toque because he wore it. The issue raised by Mr. Rodocker was whether or not Mr. Ulusow’s DNA had transferred to the Black Toque from the clothing seized at the time of his arrest. Ms. Sloan testified that this was possible but that typically for this to occur there would need to be a wet source of DNA and good contact with pressure. She agreed that it was possible that transfer could occur if the Black Toque was co-mingled in a bag with items of clothing that had Mr. Ulusow’s DNA.

Is the Honda the getaway vehicle seen in some of the robberies?

67Ms. Bradstreet submitted that the Honda was in fact the getaway vehicle seen in some of the robberies. Mr. Iwankewycz testified that the car he saw was an older model smaller black SUV, with tinted windows, like a Rav4 or Jeep, that was not in the best shape. Angelo Donatelli was across the street at the time Mr. Yang was robbed. He described the vehicle that he saw pull up in front of the TD Bank as a late model dark coloured SUV with a loud muffler that looked similar to a Honda CR-V. He saw two individuals get out of the car and then get back in and the car took off. That vehicle was clearly involved in the robbery of Mr. Yang. Mr. Attard testified that the parking lot was empty except for one car at the back of the parking lot that he described as a black, late 90’s Honda CR-V or a Suzuki Trakker with tinted windows. They ran out and got in the SUV and they were driving off as he ran out.

68In addition to this evidence, the phones belonging to Messrs. Attard and Cutajar were found in the Honda. As well clothing and shoes that look similar to the Striped Hoodie and Pants, and black Adidas shoes worn by Perpetrator #3 in some of the robberies were found in the vehicle, including the robberies of Messrs. Iwankewycz and Yang were Perpetrator #3 was observed. In addition, an imitation firearm was found although that cannot be tied to the robberies per se.

69In light of all of this evidence, I have no doubt that the Honda was used as the getaway vehicle in the robberies of Messrs. Iwankewycz, Yang, Attard and Cutajar.

The number of perpetrators in this group

70The evidence from the videos before me is clear, even if I assume that the same persons are always the persons the Crown identifies as Perpetrators #1 and #2. As for Perpetrator #3, the third perpetrator in the robbery of Mr. Robinson is much shorter that the person who is Perpetrator #3 wearing what appears to be the Striped Jacket and Pants. Some of the robberies are committed by only two people, Perpetrator #1 and #2. In most cases a third perpetrator was observed in the ATM vestibule; sometimes and in some cases, there is also evidence of at least one other perpetrator driving a getaway vehicle. For this reason, I accept Mr. Rodocker’s submission that assuming all of these robberies are connected that there were at least four members of this group.

Evidence of other robberies that the Defendants are not charged with

71Det. Allen admitted that he was aware of many more robberies that were similar in style and nature and that the police had investigated more than this series of ATM robberies. He received direct notice of all occurrences that were in the boundaries of 23 Division and four others. At the time of the arrest of the Defendants over the prior month to month and one half he was aware of at least 13 similar style robberies in this area as far south as Brown’s Line and as far north as Highway 7, just north of 23 division. The oldest one was from May 6, 2017. It was at the location of the arrest – 2700 Kipling. The number of participants was one to four.

72At the request of the defence, Det. Allen did some research and he was able to find two more robberies of ATMs that were not part of the original 13 that the Defendants were originally charged with. He gave some particulars of those robberies, but none included anyone in the Bleach Stained Hoodie that the Crown alleges connects the Defendants to the robberies before this Court. With respect to the other five robberies, I have no information as to why the judge conducting the preliminary inquiry decided that these five robberies did not meet the Shephard test. There is no evidence that the distinctive clothing the Crown relies upon in this trial was visible in any video or otherwise identified by a witness in those cases. In any event, given my finding on the similar fact application that having regard only to the manner in which the robberies were conducted does not raise the robberies before this Court to the level of a distinct modus operandi or the signature of a group, the fact there were other robberies of male customers at ATMs that the Defendants were not part of has no relevance to this trial.

73Ms. Bradstreet also relies on the evidence of Det. Allen that for the five weeks following the June 22nd attempted robbery of Mr. Hamilton there were no other ATM robberies in this area of Toronto. I do not give this evidence any weight because the arrest of the Defendants would have become known in the community and if the other robberies before this Court were committed by others as the Defendants assert, those persons could well have chosen to lie low for fear they would be caught.

Evidence of Mohamed Messrs. Farah and Ulusow

74Various admissibility issues arose during the evidence of Mr. Ulusow which I dealt with over the course of his evidence. I deal with those issues below. For reasons set out on the record and below, I have considered all of the evidence given by Mr. Ulusow, including evidence he gave on a voir dire. I therefore do not distinguish that evidence from the rest of his evidence in my summary that follows.

Their relationship

75Mr. Farah is 22 years old and was 20 years old at the time of the alleged offences. He was born in Somalia and came to Canada when he was seven years old. He is a permanent resident and lives with his mother. His brother, Cimarin, who was a year younger, was murdered recently. Mr. Farah went to a private Islamic school for grades nine and 10 and then went to another private school for grade 11. He did not progress through high school beyond that. In June 2017 he was working irregular hours as a general labourer and at restaurants. He and his mother lived at 2737 Kipling Avenue at the time.

76Mr. Ulusow is 24 years old - about two years older than Mr. Farah. Mr. Ulusow comes from a big family. He has four brothers and four sisters. He met Mr. Farah at the Islamic school when they were both in high school. He finished his high school diploma and went onto Humber College and completed a two-year police foundation course. He did not want to become a police officer but rather wanted to take credits so he could transfer to York University to take criminology, which he did. He completed his first year of that program by the end of April 2017. At the time of the robberies he was unemployed. Mr. Ulusow has no criminal record save for one breach of recognizance, which he pleaded guilty to and was sentenced to 50 days plus one day.

77Mr. Ulusow described Mr. Farah as someone more than an acquaintance but not his best friend. He knew Cimarin, who was also a friend like Mr. Farah. They would see each other at the basketball court, at the nearby school, at the community centre and at the mosque. He was never inside Mr. Farah’s house. Mr. Farah had been to his home two or three times to play video games while they were both in high school. He admitted he was older by at least two years than Mr. Farah. When asked who was more mature, him or Mr. Farah, he said he could not measure maturity and that he did not know who would listen to the other adding that he was not Mr. Farah’s father. He admitted that he did tell Mr. Farah that he should stay in school and look at what he had done. He added that this was good advice and hoped Mr. Farah would follow it.

78Mr. Farah confirmed that he met Mr. Ulusow, whom he called “Olio” in the Islamic school in 2012, when he was in grade 10 and Mr. Ulusow was in grade 12. He described him as one of his closer friends although he admitted that he had closer friends. They also had common friends. He thought he had been to Mr. Ulusow ’s home twice in 2016 and he admitted that he had never been to Mr. Ulusow ’s home to share a meal.

79The day of June 22ndJune 22, 2017 was in the last 10 days of Ramadan. Mr. Farah went out to play basketball after breakfast at a middle school near his apartment building with three or four friends. He testified that during this time he was smoking marijuana; which he smoked frequently back then. He was “chilling” with his friends and smoking marijuana and Mr. Ulusow came by at around 4:00 p.m. Mr. Farah said that by this time he was “too high” and not thinking straight. Mr. Ulusow agreed with this evidence and testified that they played basketball for one and one half to two hours. However, Mr. Ulusow testified that he did not recall Mr. Farah smoking marijuana while they were playing basketball and he personally did not because he was fasting.

80Mr. Farah testified that they stopped playing basketball around dinner time, although I note that dinner would not have been until sunset, which in June would have been closer to 9:00 p.m. In any event, Mr. Farah testified that he decided to go to work-out at a gym with one of his friends and Mr. Ulusow. His friend who had keys to the gym changed his mind and according to Mr. Farah, Mr. Ulusow suggested that they go to his home to eat. Mr. Farah testified that he had only been to Mr. Ulusow ’s home twice. It was a 15-minute walk away although he admitted that he could be wrong. Mr. Farah did admit that one of the reasons he and Mr. Ulusow got together was that they had agreed to go to late night prayers at 1:00 a.m. or 2:00 a.m. in the morning.

81Mr. Ulusow testified that after playing basketball he was really sweaty and feeling dirty. Mr. Farah asked him what his plans were, and he told him that he was going to go home and shower and then have a feast to break his fast and then go to the mosque to do late-night prayers which would commence at about 1:00 a.m. Mr. Ulusow testified that for the last 10 days of Ramadan there is an extra set of late-night prayers between 2:00 a.m. and 4:00 a.m. Mr. Farah told him that he would come to the late-night prayers at 1:00 a.m. with him and that he would come to his house and go with him. Mr. Ulusow told Mr. Farah to message him after he had broken his fast, which he expected would be some time after 9:00 p.m. as they break their fast when the sun goes down. He got a message saying Mr. Farah was outside his house at about 9:45 p.m. to 10:00 p.m.

82Mr. Ulusow agreed that Mr. Farah had been at his home twice before but stated that he had never been invited to his home for dinner before and he denied asking Mr. Farah to come to his home to break the fast. Mr. Ulusow said Ramadan is a sacred family time and he would not invite Mr. Farah over at that time. Mr. Ulusow said that the main reason that he would need to tell his mother before bringing Mr. Farah over for a meal was that once a male achieves puberty, he cannot be in the company of females who have reached the age of puberty unless they are covered. He testified that he had a big family and it is a sacred time and he would not randomly invite someone, particularly a male, given his mother and four sisters were home. He would need to advise them in advance so they could get ready. He disputed all of Mr. Farah’s evidence in this regard. On this point, although not relevant to the robberies, Mr. Ulusow’s evidence makes the most sense, particularly as whether or not they were smoking marijuana, Mr. Farah had been playing basketball on a warm day and presumably was not really showered and dressed to go to a mosque.

83On Mr. Farah’s version of events, he walked with Mr. Ulusow to his home. He testified that on the way Mr. Ulusow changed his mind because they both smelled of marijuana and Mr. Ulusow asked him whether he wanted to make some money. According to Mr. Farah, when he asked him what he meant Mr. Ulusow said that he knew a place – an ATM, where they could make money in 20 seconds. He suggested that he would grab clothes and that Mr. Farah was to wait for him outside the building. Mr. Farah admitted that he knew this meant a robbery of an ATM. He waited outside Mr. Ulusow’s building while Mr. Ulusow went inside to get some clothes. When he came out, he was carrying some clothes in a bag. Mr. Farah testified that they got back to his place about 9:00 p.m. to 10:00 p.m.

84According to Mr. Ulusow, after he played basketball, he walked home alone, which took him about 30 minutes. He got home, showered, changed and then waited until sunset at about 9:00 p.m. He then had a meal and got a snapchat message from Mr. Farah on his tablet stating that he was outside his home. Mr. Ulusow testified that he told his mother that he would see her at late-night prayers and that he was going there with a friend.

85Mr. Ulusow denied having or getting a bag of clothing. He testified that they decided to go back to where Mr. Farah lived. The plan was that they would hang out at Mr. Farah’s house for a bit and then go to the mosque. I do not know why Mr. Farah would simply have sent his message to Mr. Ulusow from his home rather than walk to Mr. Ulusow’s place and then turn around and walk back to his place. Mr. Ulusow testified that it was about 9:45 p.m. to 10:00 p.m. when they left his house and they arrived at Mr. Farah’s house between 10:20 p.m. and 10:30 p.m. Mr. Farah put it at about 10:00 p.m. Mr. Ulusow testified that the plan was to hang around Mr. Farah’s building until late night prayers which would be about two hours.

86According to Mr. Farah, when they arrived at his building his mother was at work and his brother, Cimarin, was gone. Mr. Ulusow waited for him while he went upstairs to get a jacket, a pair of pants (as he was wearing shorts because it was the summertime), and some shoes. He admitted that the clothing that he got was the black jacket with the neon green lining, the gray sweatpants and the white Air Max shoes that he was arrested in and that these items were his clothes and shoes. He testified that Mr. Ulusow gave him the meat cleaver and he put it in his back pocket, which must have been a reference to either the sweatpants or the shorts he was wearing. Mr. Farah testified that he did not discuss with Mr. Ulusow if he had a weapon, but he assumed that he had one. He did not know what kind of weapon nor did he see one. This evidence did not make sense if this was in fact Mr. Farah’s first robbery and given his evidence, he was very nervous about committing a robbery. I would have thought that he would have wanted to know if Mr. Ulusow had a weapon.

87According to Mr. Ulusow, when they got to Mr. Farah’s building, they went to the back of the building because Mr. Farah did not want him inside his apartment. Mr. Ulusow testified that he saw two black males whom he thought were of a similar age, smoking marijuana and he bought a gram from them and then he and Mr. Farah began to smoke with them and enjoy the weather. After some time, Cimarin, came out of the building “dressed to impress” with a nice chain that drew Mr. Ulusow’s attention.

88According to Mr. Ulusow, Cimarin greeted them and Mr. Ulusow asked him where he was headed. Cimarin showed him some money and said he was going to hear “Blow Band”. Cimarin asked him to go along but Mr. Ulusow told Cimarin that he was unemployed and broke and could go to any party. Mr. Ulusow testified that he knew that Cimarin was not working and so he asked him how he was doing so well. Cimarin said that if he was trying to make money, he had a “scheme” that he knew about. He said it was simple and all they had to do was go to an ATM and scare the person who would then give them cash. If that person fought back, they would run away, and nothing would happen. Mr. Ulusow testified that he thought it was okay if they did it fast to get money so he would no longer be broke. It was going to be “quick and easy” - his main focus was making money.

89Mr. Ulusow testified that after the idea was pitched to them, he and Mr. Farah talked about whether they should do it or not. Mr. Ulusow said that he and Mr. Farah talked about whether or not they would do the robbery for about 15 to 20 minutes while they were smoking marijuana and Cimarin was present. He could not recall exactly what they discussed other than they discussed the pros and the cons, and they agreed they were going to do it. In cross-examination he said that they did discuss how they were going to do it. Mr. Ulusow explained he did not testify to this before because he believed he could not, which is reasonable give the first ruling that I had made.

90According to Mr. Ulusow he then said that he needed “gear” as he was only wearing a t-shirt and pants. He testified that Cimarin then said that if you need “gear I got you” and Cimarin went into the building and a couple of minutes later Mr. Farah went in too. Cimarin came back in about five minutes with a bag that looked like a backpack. He told him that in it was the “shit I needed”. He saw a hoodie, a headband, a mask and what looked like a real gun. He thought it was a real gun and so he did not touch it. Mr. Ulusow testified in chief that he had no other conversation when Cimarin gave him the bag. In cross-examination by Ms. Bradstreet, Mr. Ulusow testified that when he looked into the bag, he asked Cimarin if it was a real gun and Cimarin said it was not, that it was a pellet gun and that he could just use it to scare the people. Mr. Ulusow also testified he examined the gun when he got it, that he had experience with legal target shooting and that he knew the gun was fake and empty and could not be used. Mr. Ulusow admitted that Mr. Farah was not present when Cimarin showed him the bag.

91Mr. Ulusow testified that he put the hoodie and the headband on and put the gloves in his pocket. He held onto the firearm because it was too heavy for a pocket. He put his white t-shirt over it. The gun was always in his hand. He took his tank top to hide it as it was a busy street and he did not want anyone to see a firearm in his hand. Mr. Ulusow testified that Mr. Farah would have seen the firearm in his hand. He said they both knew it was fake but he did not testify about any discussion to this effect by Mr. Farah so it is not clear how Mr. Farah would have known this.

92Mr. Ulusow testified that he did not see the meat cleaver at any time during the evening and he did not know where it came from. He did not know if Mr. Farah had a weapon. Mr. Ulusow said that Mr. Farah never asked Cimarin why he gave the gun to Mr. Ulusow rather than to him. His impression was that Mr. Farah had never done any of these robberies before either. Mr. Ulusow did not think to bring someone along for the robbery who had experience.

93Mr. Ulusow testified that they did not ask Cimarin for advice as to how the robbery should be done, because it was “very simple”. There was no discussion of the weapons, about how they would scare the person or how they would use the weapons. It was only once Cimarin brought the bag down that he saw the pellet gun. Cimarin had said he was going to bring him something before he brought the bag down and so he assumed he would bring a weapon. According to Mr. Ulusow, they picked 2700 Kipling as it was the only bank in the area.

94Although at first when it was put to him that the evidence he had told in Court was to protect the memory of his brother and he agreed, it was clear in my view, that he did not appreciate what this question really meant. When he did, he made it very clear that, as far as he was concerned, Cimarin had nothing to do with this robbery. He admitted that at the time Cimarin was living at home and that he saw him in the morning as they had breakfast together, but he insisted that Cimarin was not home when he went to grab clothes for the robbery. Mr. Farah denied that the clothes including the Bleach Stained Hoodie Mr. Ulusow put on were provided by his brother Cimarin. He said that he had never seen his brother wear this hoodie. To his knowledge, his brother was never involved in the robbery.

95Mr. Ulusow testified that they did not go straight to the park across from 2700 Kipling. They joined the two males that were at the back of Mr. Farah’s building smoking and they both started smoking marijuana and cigarettes. Mr. Ulusow started taking shots of Crown Apple, namely Crown Royal with an apple flavour, after he got the clothing from Cimarin. Mr. Ulusow could not remember if Mr. Farah was taking any shots but he testified that Cimarin was there drinking with them. According to Mr. Ulusow, they wanted to feel numb and “buzzed out” and discussing their plan. He denied that they both discussed that they did not want to do this.

96Mr. Ulusow testified that he was a religious person coming from a very religious family. He would do the five daily prayers all the time and during Ramadan he complied with the fasting requirement. During Ramadan you are never supposed to drink alcohol or smoke marijuana. He tried to adhere to the dictates of his religion. He admitted that he was drinking and smoking marijuana after the fast, but he denied he broke the tenants of his religion but then agreed he did. He then said that the drinking only happened once he decided to do the robbery to “kill the edge” and help “put me down”.

97According to Mr. Farah, they did not discuss how they would do the robbery or how he would use the meat cleaver which he said that he did not intend to use, and they did not discuss who would go in first. Mr. Farah had eaten breakfast and admitted he was smoking but he denied consuming alcohol. He said he did not know if others did so in the basketball area.

Mr. Ulusow and Mr. Farah go to the park across from 2700 Kipling

98Messrs. Ulusow and Farah went to a park on the north side of Kipling, kitty-corner from the ATM at the bank at 2700 Kipling. They were situated about a two-minute walk from the ATM and could see people going in and out of the ATM. Mr. Farah testified that they got to the park between 10:00 p.m. and 11:00 p.m. Mr. Ulusow believed that they entered the park sometime after midnight. Based on the evidence of Det. Allen they must have been there by 12:52 a.m. as they were the two individuals in the park that he saw then run towards Kipling and turn back. We know that police saw them run across for the first attempt at 12:52 a.m., they were only in the park for 5 to 10 minutes before they ran the first time.

99Mr. Ulusow testified it was a quick way of making money, their intention was not to hurt anyone, and they did not think about the mental part the victim would feel or their futures. They only discussed the positive, not the negative. There was no discussion as to who would go in first. They did discuss weapons and the purpose being to intimidate the victim. There was no conversation about how Mr. Ulusow was going to use his weapon. His idea was that he would show the pellet gun and if the person got scared and gave them cash, they would take it, if not, and the person resisted, they would bolt. That was a conversation they did have.

100According to Mr. Farah, they put their masks on when they reached the park. He denied that they did this later. Mr. Farah testified that as they were watching people, he was getting nervous and panicking. Mr. Farah admitted that he had a baggy of marijuana when he was arrested. When it was put to him again that he and Mr. Ulusow were smoking in the park he said he could not remember as he was “too panicked” but he had also testified that while he was still high, he was sure that they were not smoking marijuana while they were sitting on the park bench watching the ATM.

101Mr. Farah testified that he was thinking about going home because his heart was racing, and he was panicking and thinking that he did not want to do the robbery. He testified that he told Mr. Ulusow that he did not want to do this, and Mr. Ulusow responded that it was quick money and “let’s do it”. He could not explain why he simply did not walk away.

102When the evidence of Det. Allen about his observation about the two men in the park at 12:50 a.m. and running across the street and returning back was put to Mr. Farah he testified that he “just remembered this”. When asked why they retreated he said that he was panicking. Mr. Farah admitted that as far as he knew it was Mr. Ulusow ’s first robbery attempt and they were both frightened and uncertain. When Mr. Ulusow told him that he knew how they could make some quick money he did not say he had done this before. When it was put to Mr. Farah that it sounded like Mr. Ulusow was experienced Mr. Farah said he did not know because he was too high to ask questions.

103Mr. Ulusow admitted that the false start that Det. Allen saw at 12:50 a.m. did occur. He said it happened about five to 10 minutes after they arrived at the park. He said they simply ran from the bench across the street. They ran across the street and looked at each other and turned around because they got scared and had cold feet and ran back. Mr. Ulusow drew a line on a map showing the direct route they took the first time to run across the street before they changed their minds. He said that they turned back because they got scared and “cold feet”. Mr. Ulusow testified he did not remember Mr. Farah saying that he did not want to do the robbery.

104In cross-examination, Mr. Ulusow testified they ran across the street they looked at each other and he said: “Are you ready to do this?” and that Mr. Farah looked a little worried and he was scared so he said, “fuck it” and they both ran back. Mr. Ulusow then said he did not remember the exact words he said, and he only admitted that it was possible that he asked Mr. Farah “are you ready to do this?” He denied the suggestion that Mr. Farah said no. He disagreed that Mr. Farah said no. They both turned back. When asked how he knew that Mr. Farah was not ready given that he was wearing a mask, Mr. Ulusow said that he did not know but that they both stopped, and both were not ready. He strongly disagreed with the suggestion that he was the leader or that he had started walking first and told Mr. Farah to come. He said that if he was the leader, he would have gone into the bank first.

105There was a two-hour gap after this false start and Mr. Ulusow said they were sitting and watching but Mr. Ulusow testified that they did not see anyone at the ATM in that two-hour period. He said that they were also smoking more marijuana and talking about how they were going to do this. He then said they were not discussing how but since they got scared, they talked themselves into doing it. He later admitted that “of course we did talk about it before committing such a serious offence so yes we did talk about it”. Mr. Ulusow testified that it was a quick way of making money, there intention was not to hurt anyone, and they did not think about the mental part of how the victim would feel or their futures. They only discussed the positive, not the negative. There was no discussion as to who would go in first. They did discuss weapons and the purpose being to intimidate to the victim. There was no conversation about how Mr. Ulusow was going to use his weapon. He testified that he would show the pellet gun and if the person got scared and gave them cash, they would take it, if not, and the person resisted, they would bolt. That was a conversation they did have.

106When it was put to Mr. Ulusow that a number of people had gone in and out of the ATM in that two-hour period, he said he did not recall seeing that. He explained that they were smoking and “doing other things” and not 100% focused on the ATM. He could not recall what the “other things” were apart from talking and smoking. Mostly they were just waiting and psyching themselves up. He said however, they were paying attention. Mr. Ulusow denied that they were waiting for two hours for the “perfect victim” and said he did not know what that meant.

The attempted robbery of Mr. Hamilton

107In his evidence, Mr. Ulusow testified that this was not a crime done “on reason”. He attributed it to the fact that he was high and a little intoxicated. This ruined five years of hard work where he was trying to be a statistic of a black male who did make it to post-secondary. He said however that he was taking responsibility for the June 22nd robbery and by his evidence in effect he pleaded guilty to attempted robbery of Mr. Hamilton on June 22, 2017. He admitted his guilt to counts 22-24 inclusive and he admitted his intention was to rob the individual in the ATM vestibule.

108Mr. Ulusow testified that they took a different path when they went to do the robbery at 2:54 a.m. This time they went an indirect way, going north first to a yellow gate that prevents cars from coming into the park and then south again to the ATM. He said they did this because it was hidden from whomever was in the ATM and “more discrete”. Mr. Ulusow testified that Mr. Farah went in first because he had a firearm and that the situation could be worse both ways. When Mr. Farah went in first, he did not go in behind him immediately. They knew that there could be a dangerous person inside who could have a firearm or knife since it is normal for a person to have something on them. He denied that this plan meant that the idea was that if this person had a gun that Mr. Farah would get shot first. They wanted to see if the person would react and if they person did, they would run away. Mr. Ulusow admitted that Mr. Hamilton would have been robbed unless police showed up or he resisted.

109In chief, Mr. Farah testified that when one guy went into the ATM and was there for a while that Mr. Ulusow said, “lets go” and walked halfway across the road. Mr. Farah was still sitting on the bench and thinking about going home. Mr. Farah testified that Mr. Ulusow told him to “lets go inside” and he went. He testified that he was panicking and did not want to do this although he admitted he was the first one through the door. He had the meat cleaver in his back pocket and his face was disguised. He saw the back of the man at the ATM. Mr. Ulusow suggested they rob him, and he did not say anything in response. Mr. Farah denied ever taking out his weapon or saying anything. He testified that he was hesitating, so he decided to run because he did not want to do this. He never got a chance to look at the man at the ATM. He never took out his weapon nor did he ever say anything. He did not want to rob anyone and was panicking.

110According to Mr. Farah, when he went into the bank, he suddenly had a change of heart. He said that he had been thinking the whole time in the park that he should leave, and he admitted that he could have left. He said as soon as he reached the door of the bank he left and that he never looked at the guy at the ATM and he decided not to do the robbery before the police arrived. As soon as he hit the second door, he saw a car come in and when he got outside, he saw flashing lights. At first, he did not know who it was, and he only appreciated it was police after he got out of the building. They jumped on him and arrested him. He did not see what happened to Mr. Ulusow.

111In cross-examination Ms. Bradstreet showed Mr. Farah various parts of the video taken inside the bank. In particular she showed the video of Mr. Farah coming through the interior door and that he was then fully in the ATM vestibule. The video shows that Mr. Farah kept coming in and that he was reaching into a front left jacket pocket. Mr. Farah said that this was because the meat cleaver was falling out although I note that he had consistently said before this that he had the cleaver in a back pocket.

112Mr. Farah insisted that he only saw police once he ran outside. It was put to him that at 2:52:29 a.m., Mr. Ulusow can be seen looking towards the window and that at 2:52:31 a.m. cars can be seen pulling up and it is at that point that they both ran at the same time. Ms. Bradstreet put to Mr. Farah that if he is telling the truth then Mr. Ulusow must have had the same change of heart at the same time and not because he saw the police.

Physical Description of Cimarin

113Mr. Farah testified that his brother Cimarin was about an inch taller than he is and bigger than he is. He was a little bit overweight and not skinny like Mr. Ulusow.

114Mr. Ulusow testified that he knew Cimarin and that he was a friend like Mr. Farah. They would see each other at the basketball court, at the community centre and at the mosque. He also described Cimarin as bigger in size in terms of his weight or girth and about an inch taller. Mr. Ulusow is 5’11” tall. He said Cimarin would be 5’10” to 6’. This makes no sense of course. I presume he gave an incorrect answer as he was nervous on the stand.

115Mr. Ulusow admitted that in the videos, Perpetrator #1 does not look like Cimarin in terms of his build. He denied this person looked like him and testified that he has no idea who it is.

The evidence of the Defendants concerning the other robberies

116Mr. Farah denied being involved in any of the prior robberies and testified it was not him in any of the prior robberies and testified it was not him in any of the videos of those robberies. On some of those nights he said it was “best guess” that he was at home although he did not keep any record of this. Mr. Farah also denied knowing anything about the Honda and said he never seen it before. He does not know the person who is on the Mr. Lube receipt and testified that he had never meet this person.

117Mr. Ulusow testified that before this robbery he had never engaged in any criminal activity. This was a “freak incident”. Mr. Ulusow testified that this was not a crime done “on reason”. He attributed it to the fact that he was high and a little intoxicated. This ruined five years of hard work where he was trying to be a statistic of a black male who did make it to post-secondary.

118Mr. Ulusow testified that he was not involved with any of the other robberies and that he was not familiar with the Honda. He testified that he had never been in it and had never participated in any robbery using the vehicle. He was not aware of other robberies at this bank. Mr. Ulusow strongly disagreed with the suggestion that he was lying about the story with respect to Cimarin, or that the Blue Stained Hoodie was in fact his, that he was the leader of the group or that he had committed the other robberies.

119When Mr. Ulusow was asked if after the robbery, he was upset with Cimarin because he was arrested wearing a hoodie that had been used in every robbery, he testified that he only became aware of the significance of the hoodie he was wearing at the time of the robbery at the preliminary inquiry. He denied that at that time he was upset with Cimarin. He then said he did not recall if he was upset with Cimarin. He said he felt “annoyed” and “angry” but he continued his friendship with Cimarin after the preliminary inquiry. This was despite the fact that he said this case changed his life forever. He said it was not something that would cause him to never talk to Cimarin again. Mr. Ulusow did say that after he was arrested, he was not “as tight as he used to be” with Cimarin. He could not speak to Mr. Farah given conditions of his bail. He admitted going out with Cimarin after his arrest.

Analysis

Is Mr. Ulusow’s evidence about the statements made by Cimarin admissible?

120During the cross-examination of Mr. Farah, Mr. Rodocker put to him that his brother Cimarin had provided the Bleach Stained Hoodie to Mr. Ulusow. This suggestion was denied, and no objection was taken. The following day, when Mr. Ulusow was about to give the expected evidence that Cimarin had given this hoodie to him, an issue arose as to whether or not he was suggesting there was a third-party suspect and had failed to give proper notice as this evidence was clearly new to both the Crown and Mr. Cohen. Mr. Cohen complained that the lack of notice had affected the way he had conducted his defence of Mr. Farah and suggested he might need to bring an application for a mistrial. Ms. Bradstreet agreed that this was third party suspect evidence. Mr. Rodocker took the position that advance notice was not required as he was not advancing a claim that Cimarin committed the other robberies, and so the notice required for a third-party suspect did not apply although he agreed that would be one inference from this evidence. In fact, no one was suggesting that that Cimarin’s physical characteristic were like the person seen wearing the Bleach Stained Hoodie in the other robberies. Mr. Ulusow was also not suggesting that Mr. Farah was involved in the other robberies. Mr. Rodocker relied on R v. McMillan⁴ and R. v Fenton⁵.

121After hearing submissions, I ruled that this evidence was admissible and that it was not third-party suspect evidence and gave brief oral reasons. Initially I stated that Mr. Ulusow could give his evidence about the involvement of Cimarin but without giving evidences about any utterances made by Cimarin. I had not considered whether or not such evidence would be admissible as Mr. Rodocker had said that he did not need to elicit what Cimarin said to him. After I gave my initial ruling, Mr. Rodocker submitted that Mr. Ulusow should be permitted to testify about utterances made to him by Cimarin and this issue was discussed. Ultimately given his advice that the evidence of utterances made would not assist Mr. Ulusow or be relevant I ruled that Mr. Ulusow not give this evidence.

122The issues of utterances made by Cimarin came up again during the cross-examination of Mr. Ulusow by Ms. Bradstreet and this evidence became potentially important to the Crown’s case. Issues arose as to whether or not the evidence was admissible as hearsay evidence and whether or not Mr. Rodocker breached the rule in Brown v. Dunne⁶. After a discussion with counsel, and for oral reasons given, I decided to enter a voir dire to hear this evidence so that further argument could be made at the end of the trial about its admissibility. Since Mr. Ulusow had not been asked about this by Mr. Rodocker, Mr. Rodocker examined him in chief first on this issue and then he was cross-examined by Mr. Cohen and the Crown.

123During closing submissions neither Mr. Cohen nor Ms. Bradstreet made any further submissions concerning the admissibility of the evidence of Mr. Ulusow as to what Cimarin had said. Mr. Rodocker submitted that once Mr. Farah denied that his brother was even present it was not necessary to painstakingly confront Mr. Farah with everything that the brother might have said in his presence. I agree. It could reasonably be expected that Mr. Farah would deny any suggestion that his brother Cimarin was present and had made certain statements.

124I have also concluded that this evidence is not hearsay as I do not need to determine if the statements alleged to have been made by Cimarin are true, only whether or not they were made. If Mr. Ulusow is believed, then these statements go to his state of mind and why he decided to do the robbery and that is all.

125For these reasons I concluded that I could consider all of the evidence of the alleged discussion with Cimarin is admissible on the basis that I can determine whether or not Cimarin was present, whether or not he made certain statements as testified to by Mr. Ulusow and whether or not he gave Mr. Ulusow “gear” for the robbery including the Bleach Stained Hoodie.

The Law - R v. Villaroman

126In coming to my decisions in this matter I must carefully apply the law set out by the Supreme Court of Canada in R v. Villaroman,⁷ as apart from the attempted robbery of Mr. Hamilton, the Crown’s case against the Defendants depends on circumstantial evidence. In assessing circumstantial evidence inferences consistent with innocence do not have to arise from proven facts but may also arise from an absence of evidence. I must also be cautious about the dangers of the path of reasoning involved in drawing inference from the circumstantial evidence; namely the risk of filling in the blanks or jumping to conclusions. In this case I must be satisfied beyond a reasonable doubt that the guilt of the Defendants is the only reasonable inference that can be drawn from the evidence; See: R v. Loor⁸.

The Law - R. v. W.(D.)

127Since the Defendants testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)⁹ apply. With respect to each of the Defendants I must acquit that Defendant, if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.¹⁰ Finally, in considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of each of the Defendants, I am entitled to consider it in the context of all of the other evidence.¹¹

Reliability and Credibility Assessment – Mr. Farah

128With respect to the evidence Mr. Farah gave about what happened on June 22, 2017, I must consider the evidence that impacts on the reliability of his evidence. He admitted that he was smoking marijuana - he said that he was very high and admitted by midnight that he was very hungry as he had not eaten anything since breakfast, which meant the marijuana had an especially strong affect. Mr. Farah also admitted that this affected his memory and that his memory was not 100%. He denied drinking any alcohol and that evidence was not contradicted. Mr. Farah also admitted that panic would have affected his memory. Despite these admissions, Mr. Farah testified that he still remembers that day because it was “really shocking” and he insisted that that night changed his life and he remembers it.

129Mr. Farah showed no emotion as he testified, and he did not show any change in demeanor in cross-examination by Mr. Rodocker or the Crown. I did notice however that he seemed quick to agree to suggestions and it was not always clear that he understood them. Ms. Bradstreet described Mr. Farah as a very agreeable witness and Mr. Cohen also submitted that Mr. Farah was not sophisticated and did not truly understand all of the questions before he answered. I agree but do not accept Mr. Cohen’s further argument that Mr. Farah’s lack of sophistication was consistent with his evidence that this was his first robbery and that Mr. Ulusow was the leader.

130In cross-examination Mr. Farah admitted to Mr. Rodocker that he wanted to hold the memory of his brother Cimarin sacred and close. Initially he admitted that the story he told was to protect the memory of his brother but in my view, he clearly did not understand the question. Once he did, he was categorical that his brother Cimarin had nothing to do with this and that Cimarin was not home when he went into his home to grab some clothing for the robbery.

131As Ms. Bradstreet submitted, certain aspects of the evidence of both Mr. Farah and Mr. Ulusow cannot be true. There were aspects of Mr. Farah’s evidence that I will come to about the attempted robbery of Mr. Hamilton that I do not believe. Although I appreciate that I can still accept the rest of his evidence there were other aspects of his evidence about the events of June 22nd that made no sense. I do not accept that he was invited to have dinner with Mr. Ulusow and his family given the evidence of Mr. Ulusow on this issue which made sense. Mr. Farah had been playing basketball for some time and it also makes no sense that he would go for dinner, to the home where he admits he had never been for dinner before, dressed in his basketball clothes without showering and changing.

132I also find it impossible to believe that if this was the first time that Mr. Farah participated in a robbery that he would not have asked Mr. Ulusow more questions. Furthermore, he emphasized at length how nervous and panicked he was and that he did not want to do this robbery and yet he gave no credible explanation for why he did not simply leave, particularly after the first abandoned attempt. Mr. Farah had hours to think about this. Mr. Ulusow was not keeping him there against his will and he could have just gone home. As Ms. Bradstreet submitted, if they were both as nervous as they suggested at least one of them would talk the other out of it. In addition, if this was really Mr. Farah’s first robbery, I do not believe that he would have gone into the bank first. Furthermore, based on the video evidence, as Ms. Bradstreet submitted, it appears Mr. Farah came into the bank with confidence and he was not looking back for where Mr. Ulusow was.

133Ms. Bradstreet also submitted that Mr. Farah would have known that Mr. Ulusow was going to give this evidence and queried why did he not simply say it was true. She submitted that the theory that he has concocted a lie to protect the memory of his brother does not make sense. I do not accept that submission. I do not believe that Cimarin had anything to do with the attempted robbery of Mr. Hamilton for reasons I will come to, but I do accept the submission that if he had that that might be an incentive for Mr. Farah to lie to protect his memory.

134I also do not believe that Mr. Farah had his mask on the entire time. It would have been too hot for that. Mr. Ulusow said they masked up as they crossed the road and that evidence is consistent with the observations of Det. Allen and D.C. Xiouris. However, I accept that this may be an error due to the lack of reliability of his evidence.

135Both Defendants said that while they were in the park, they did not see anyone enter the bank even though on the evidence there were a number of persons who did so, and they were in the park to do a robbery. Ms. Bradstreet submitted that they were trying to distance themselves from the appearance that they were preying upon a smaller man since Mr. Hamilton was small in stature. She submitted that they waited two hours for the “perfect victim”. I agree this seems likely as both Defendants said they did not see the other persons at the bank in this two-hour period. For example, they did not say that they saw someone but were still too scared to commit the robbery.

136As I will come to, when I consider Mr. Farah’s evidence in the context of all of the evidence, I find that at least some of it is not true.

Reliability and Credibility Assessment – Mr. Ulusow

137Mr. Rodocker’s position is that the evidence of Mr. Ulusow at its core does not differ from that of Mr. Farah. He submitted that where it does, that Mr. Farah reconstructed the events to protect the memory of his brother. He submitted that Mr. Ulusow would not invite Mr. Farah to his home that evening and that Mr. Farah’s evidence in that regard was not believable. He submits that this is a complete answer to Mr. Farah’s evidence. I disagree as this is simply one occasion where I prefer the evidence of Mr. Ulusow to Mr. Farah. Even on Mr. Ulusow’s evidence Mr. Farah did come to his building that night even though they then turned around and went back to Mr. Farah’s building to hang out. That does seem odd.

138Ms. Bradstreet submitted that Mr. Ulusow’s evidence that he was taking this righteous path in his life and never considered any criminality and yet based on a quick conversation would completely turn his life upside down makes no sense given Mr. Ulusow’s evidence that he was doing everything for himself to make everyone proud. I agree with this submission but of course as we all know, there are many young men with lots of potential who fall prey to the idea that by breaking the law they can make some easy money. That said it is strange that Mr. Ulusow and Mr. Farah would choose to commit their first robbery during the last 10 days of Ramadan.

139Ms. Bradstreet submitted that Mr. Ulusow’s evidence about the conversation with Cimarin should also be rejected. She pointed out that based on the evidence of Mr. Ulusow, there was no expectation from Cimarin of any quid pro quo, namely payment or a cut of the robbery proceeds. I agree this seems odd. Why would Cimarin take the chance of Mr. Ulusow and his brother getting caught on their very first robbery attempt if, as Mr. Ulusow’s evidence implies this is how Cimarin was making easy money. I agree with Ms. Bradstreet that it also seems odd that Cimarin would send his brother, who has no criminal record and has never committed a crime, in to do a robbery, particularly as Mr. Farah was a year older. I agree that it is also odd that there was no real instruction as to how to commit the robbery and that no one asked any questions. Some of the evidence of Mr. Ulusow was even unclear on the discussion he had with Mr. Farah as to how to commit this robbery. In addition, as Ms. Bradstreet submitted, if this was the first robbery for both of them why would Cimarin give his brother a meat cleaver and Mr. Ulusow the imitation firearm? One would think that Cimarin would want his brother to have what would appear to be the better weapon.

140As I will come to, when I consider Mr. Ulusow’s evidence in the context of all of the evidence I find that at least some of it is not true.

Has the Crown proven beyond a reasonable doubt that Mr. Farah committed an attempted robbery of Mr. Hamilton on June 22, 2017?

141Mr. Cohen relied on R. v. Duplassie,¹² in support of his position that Mr. Farah is not guilty of attempted robbery with respect to the event on June 22, 2017. In Duplassie the Defendant was charged with a number of robberies including one charge of attempt to commit robbery and carry a concealed weapon. While he was under surveillance, the Defendant was seen looking in the direction of a Credit Union wearing a neck warmer and an imitation handgun lighter in his pocket. The Court of Appeal found that the trial Judge erred in leaving the charge of attempted robbery to the jury. They relied on R. v. Cline (1956),¹³ where Laidlaw J.A. stated at p. 29 that the actus reus must be more than mere preparation to commit a crime. When the preparation to commit a crime is in fact, “fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal intention to commit that crime”.

142The Court in Duplassie went on to refer to Henderson v. The King¹⁴ where the majority of the Supreme Court of Canada held that three defendants were guilty of an attempt to rob a bank when they armed themselves and drove towards the bank. They did not complete the robbery because they spotted police in the vicinity of the bank, but the Court held that their acts went beyond mere preparation.

143The Court also referred to R. v. Sorrell and Bondett¹⁵ where a defendant knocked on the door of a takeout food store which had closed 15 minutes earlier. The manager said they were closed and the defendant left. The defendants had balaclavas over their heads and another store employee noticed that one of them had a gun in his hand. The Court of Appeal found that if the trial Judge had found that the defendants intended to rob the store the acts done by them clearly had advanced beyond mere preparation and were “sufficiently proximate to constitute attempt”.

144After referring to these decisions, the Court in Duplassie found that while the evidence suggested the preparation to commit the crime was fully complete, there was insufficient evidence to conclude that the defendant took any steps beyond preparation. After two hours of watching the Credit Union he got in his car and drove away. “Unlike in Henderson and Sorrell and Bondett, the appellant in this case did not approach the Credit Union” (para. 12).

145Having reviewed these authorities there can be no doubt that Mr. Farah is guilty of the attempted robbery of Mr. Hamilton. He had fully prepared for this robbery including having his mask on and a meat cleaver in his pocket. He had run across Kipling from the park and into the bank. I also find that Mr. Farah was not reaching into his pocket to readjust the meat cleaver. He had just run from across the road and into the bank and as Ms. Bradstreet submitted it is too much of a coincidence that this happened just as he was approaching Mr. Hamilton from behind. Furthermore, I find that Mr. Farah was not truthful when he said that he had put the meat cleaver in a back pocket. I doubt that the kind of shorts and sweatpants he was wearing would have had a pocket that could hold this item and furthermore, the meat cleaver was in his jacket pocket when he was arrested, based on the evidence of Det. Allen. I find that in fact Mr. Farah was about to pull out the meat cleaver.

146I also reject Mr. Farah’s evidence that at the moment he decided not to continue with the robbery, and he turned and ran, that he had not seen police. The headlights of the police cars were visible through the large windows and even if he could not tell they were police, given the officers were in unmarked cruisers, clearly someone had arrived, and he and Mr. Ulusow decided to run. No words were stated to Mr. Hamilton and he barely knew they were there until they were right behind him. As Ms. Bradstreet submitted, why would both Mr. Farah and Mr. Ulusow decide to run out of the bank at precisely the same time if they did not see the headlights? They had not done anything by that point. In this regard, as Ms. Bradstreet submitted, Mr. Ulusow’s evidence makes a lot more sense in that when the car arrived, and they saw police they both ran.

147For these reasons I find Mr. Farah guilty of the attempted robbery of Mr. Hamilton; Count 22. In addition, Mr. Farah is guilty of having his face masked, Count 23 and having the meat cleaver in his possession for the purpose of committing the robbery, Count 25. As for Count 24, although Mr. Farah denied knowing that Mr. Ulusow had an imitation firearm, Mr. Ulusow was carrying it under a white T-shirt. Given how long he was with Mr. Ulusow in the park, I find that Mr. Farah must have seen it. For that reason, I also find Mr. Farah guilty of Count 24.

Has the Crown proven beyond a reasonable doubt that Mr. Farah was one of the perpetrators in any of the other robberies?

148I turn then to the question of whether the Crown has proven beyond a reasonable doubt that Mr. Farah was one of the perpetrators in any of the other robberies. In this regard, Ms. Bradstreet’s submissions center on what she described as an “incredible coincidence” that Mr. Farah and Mr. Ulusow wore clothing similar to that worn in the other robberies committed before the attempted robbery that they admit to.

149Ms. Bradstreet submitted that Mr. Farah’s link to the other robberies is strong. He was wearing what looks like the Black Jacket and shorts underneath grey sweatpants in the same way as seen in the video of the robbery of Mr. Iwankewycz on June 10th. That and the fact that he was with the person with the Bleach Stained Hoodie significantly narrows the pool.

150If I were to accept Mr. Farah’s evidence that the Hamilton attempted robbery was his first, then I have to consider what likelihood could there be that he randomly chose to put on his black jacket on that night which just happens to look like the Black Jacket worn by the person alleged to be Perpetrator #2 in the robbery of Mr. Iwankewycz. In addition what is the likelihood that the shorts Mr. Farah was wearing at the time of the attempted robbery of Mr. Hamilton also just happen to look the same as the Stiped Shorts worn by Perpetrator #2 at the robbery of Mr. Iwankewycz., and that Mr. Farah was wearing those shorts the same way during the attempted robbery of Mr. Hamilton as Perpetrator #2 in the robbery of Mr. Iwankewycz, in that the shorts were at the waist of that man with the pants that were over, hanging somewhat lower, showing the top of the Stiped Shorts. I recognize that Perpetrator #2 in the robbery of Mr. Iwankewycz was wearing pants that look like the Adidas Pants and shoes that look like the White Shoes and that Mr. Farah was not wearing these items when he was arrested but, in both cases, the other perpetrator was with Perpetrator #1 who was wearing the Bleach Stained Hoodie.

151In my view, regardless of whether or not it was Mr. Ulusow who was wearing the Bleach Stained Hoodie, Perpetrator #1 in the robbery of Mr. Iwankewycz was wearing the Bleach Stained Hoodie which further reduces the chance that the clothing Mr. Farah randomly chose to wear for the attempted robbery of Mr. Hamilton matched in so many respects to Perpetrator #2 in the robbery of Mr. Iwankewycz. In my view there is no other possible explanation for why Mr. Farah’s clothing would be worn by Perpetrator #2 in the other robbery unless he was the one wearing them. Mr. Farah testified that the striped shorts and the black jacket were his and he denied that they belonged to his brother. Although I have not found that the Black Jacket and the Striped Shorts are unique, the black jacket is certainly not common and in addition there is the way in which the Perpetrator #2 in the robbery of Mr. Iwankewycz was wearing the pants over the shorts. What makes it unique is the combination of what was worn on both occasions and how it was worn and the presence of Perpetrator #1 in the Bleach Stained Hoodie.

152In coming to this conclusion, I have considered the fact that during the robbery of Mr. Iwankewycz, there is no evidence that Perpetrator #2 had a bladed weapon in his possession. However, in that case Perpetrator #2 was acting as a look out and he had no contact with Mr. Iwankewycz. Mr. Cohen also submitted the fact that a knife was brandished in prior robberies is not consistent with the attempted robbery of Mr. Hamilton, but Mr. Farah never had a chance to take the meat cleaver out of his pocket.

153I recognize that there is no evidence of a meat cleaver being used in any of the other robberies. There were however different bladed weapons described including what looked like a screw driver. It also seems that there were different imitation firearms being used. What is perhaps unusual is that it does not seem that each perpetrator, assuming they were always the same person, had a particular weapon of choice. Nevertheless, the other similarities are enough in my view.

154Mr. Cohen submitted that with respect to the Black Jacket, there is no evidence as to how available this type of jacket is and whether or not it is distinctive for a young man to own one. Furthermore, there is nothing particular about the Striped Shorts that makes them unique and again, there is no evidence as to how popular these types of shorts are. I agree with these submissions which is why I have not found either of these pieces of clothing in and of themselves to be unique. However, in my view it is the odds of the combination of clothing that Mr. Farah chose to wear and the fact he admitted the Black Jacket and the Stiped Shorts are his that is important.

155With respect to the shoes, I have also considered the fact that Mr. Farah was arrested in shoes that do not look like the White Shoes. However, it would not be unusual for young men to have more than one pair of running shoes.

156The Crown’s submissions that Mr. Farah was Perpetrator #2 in the other robberies is more difficult. In the other robberies Perpetrator #2 is not wearing the Black Jacket and at first blush the only clothing link is what looks like the Striped Shorts and the way Mr. Farah was wearing pants over them. However, having found that Mr. Farah was Perpetrator #2 in the robbery of Mr. Iwankewycz on June 10th, I have found that Mr. Farah also had a pair of pants that look like the Adidas Pants in his possession and shoes that look like the White Shoes. If I include those items then the question is what is the probability that Mr. Farah owned or had access to these items as well as another person who acted as Perpetrator #2, who wore the Canada Hoody.

157In considering this question I have considered, as Mr. Rodocker submitted, that if in this part of the city there are a large number of males sporadically involved in ATM robberies and they are taking advantage of various imitation firearms, there could be different members of the group sharing other items such as clothing. It is true that there does not seem to be any consistency with respect to the weapons in terms of which person uses which weapon or even which type of weapon. There seem to be a number of different imitation firearms and bladed weapons and it cannot be said that a particular firearm or particular edged weapon is always in possession of the same person each time.

158However, it does seem that for the most part, the clothing is unique to each perpetrator. The Honda, which I have found was used as a getaway vehicle in some of the robberies, contained a bag of clothing that looks like the clothing and shoes worn by Perpetrator #3 in those robberies where I have identified someone in clothing that looks like the Stiped Jacket and Pants as well as black Adidas running shoes. When that person does appear in the robberies all three of these items are being worn. In other words, it is not as if different items of clothing are being shared as far as Perpetrator #3 is concerned. The fact that the person who was Perpetrator #3 in the June 8th robbery appears to be considerably shorter than the person who is Perpetrator#3 wearing what appears to be the Striped Jacket and Pants. Some of the robberies are committed by only two people, Perpetrator #1 and #2. In most cases a third perpetrator was observed in the ATM vestibule; sometimes and in some cases, there is also evidence of at least one other perpetrator driving a getaway vehicle. For this reason, I accept Mr. Rodocker’s submission that assuming all of these robberies are connected that there were at least four members of this group.

159Ms. Bradstreet conceded that on June 8th, the person she identified as Perpetrator #3 was considerably shorter than the others. In that case however Perpetrator #3 was wearing totally different clothing to what Perpetrator #3 was wearing when he can be observed in the other robberies; namely clothing similar to the Striped Jacket and Pants and the black Adidas running shoes. In my view, at the robbery of Mr. Robinson on June 8th, the person identified as Perpetrator #3 would be more accurately described as Perpetrator #4 as there is no doubt that this was a different, shorter person, dressed in clothing that does not appear in any of the other robberies before this Court. The fact that this person was not wearing any of the clothing that is seen at other robberies where Perpetrator #3 is present wearing what looks similar to the Striped Jacket and Pants and black Adidas shoes suggest that the clothing worn by each perpetrator was not interchangeable, save for Perpetrator #2 wearing either the Canada Hoodie or the Black Jacket.

160Furthermore, the person who appears to be the leader of the group and who used the ATM; Perpetrator #1, is always wearing the Bleach Stained Hoodie in all of the other robberies with the exception of the robbery of Mr. Yang on June 15th where no one wearing that hoodie appears.

161I would not expect shoes to be part of any sharing as they have to fit. I therefore find that in addition to the shoes Mr. Farah was wearing at the time of his arrest, the shoes he wore at the time of the robbery of Mr. Iwankewycz must have been his. Those shoes, what I have called the White Shoes are being worn in the other robberies by Perpetrator #2. In addition, in most of the other robberies, save for the robbery of Messrs. Panchancharam, Cutajar and Attard, Perpetrator #2 is wearing, as I have stated, the Striped Shorts and they show in the video because the pants Perpetrator #2 is wearing show the top of the shorts. In each of those robberies, Perpetrator #2 is wearing pants that look like the Adidas Pants worn by Mr. Farah at the time of the robbery of Mr. Iwankewycz or plain grey sweatpants that look like the pants he was wearing at the time of his arrest. In my view, in light of these consistencies, it does not seem possible that there would be another person who is Perpetrator #2, just because in these other robberies the person the Crown identifies as Perpetrator #2 is wearing the Canada Hoody. Again, it is the combination of these items of clothing and the way in which they are worn that makes the possibility of coincidence highly unlikely.

162I asked Ms. Bradstreet about the fact that at the time of the attempted robbery of Mr. Hamilton, Mr. Farah was wearing a bright orange jacket underneath the Black Jacket. She submitted that in the robbery of June 11th, Perpetrator #2 can be seen wearing something with a bright red fabric which might be consistent with what Mr. Farah was wearing underneath the Black Jacket at the time of his arrest. I checked the video again and do see what appears to be an orange or red strip of clothing that projects out of the bottom of the back of the Canada Hoodie, but I cannot tell what kind of clothing it is and certainly cannot tell that it is an orange jacket. That jacket is visible during the attempted robbery of Mr. Hamilton as the black jacket is not zipped up although the hood is up and pulled closed tightly.

163Ms. Bradstreet submitted it is not a coincidence that the attempted robbery of Mr. Hamilton shares many common features of the other robberies - the “MO is identical”. Despite the fact that neither Mr. Farah nor Mr. Ulusow asked for any instructions on how to do the robbery, they chose a male victim, a bank in the same general area as the other robberies, they attempted to rob Mr. Hamilton in the early morning hours, they had an edged weapon, and imitation firearm and were of the same build as the other perpetrators and wore identical clothing. She submitted that notwithstanding no instructions all of these coincidences could not have appeared if this had been their first robbery.

164There is merit to this submission although I must consider the fact that Mr. Farah was in possession of a meat cleaver and that is quite different from the bladed weapons described by some of the witnesses. It is also a strange choice of weapon. I appreciate Mr. Farah stated that Mr. Ulusow gave it to him but since he had to go inside to get clothing it would have made more sense for him to exchange it for a less conspicuous kitchen knife. Mr. Farah was not asked about this, but we do know that on his evidence he went inside his home having decided to do this robbery.

165As I said when I gave my reasons on the Similar Fact Application, the manner in which the robberies were conducted does not raise these series of crimes to the level of a distinct modus operandi or the signature of a group. That said, that does not mean that the similarities are of no significance, particularly given the evidence of Messrs. Farah and Ulusow that the attempted robbery of Mr. Hamilton was their first and that they did not get advice from anyone as to how to commit the robbery. The similarities are consistent with the notion that it was the same group of young men who were committing these robberies.

166As Mr. Cohen submitted there is nothing connecting Mr. Farah to the other robberies or the Honda; no DNA or fingerprints. He submitted that the best evidence the Crown has with respect to Perpetrator #2 is the Canada Hoodie given the mark on the back and that Mr. Farah is not associated with any of the robberies where this is seen. He was never found in possession of this hoodie. Furthermore, in those cases the person wearing the Canada Hoodie is also wearing what appears to be the Adidas Pants and the neither of which were being worn by Mr. Farah on his arrest. However, as I have said Mr. Farah was wearing pants that look like the Adidas Pants at the time of the June 10th robbery as well as the White Shoes. Furthermore, although I do not and could not identify Mr. Farah as Perpetrator #2 based on his facial features, his physical stature is similar to that of Perpetrator #2.

167I find, given the combination of clothing worn by Perpetrator #2 in the other robberies and how the pants were worn in those robberies, given my finding that Mr. Farah was Perpetrator #2 for the robbery of Mr. Iwankewycz, and given what he wore during the attempted robbery of Mr. Hamilton, and how he wore that clothing, that when I consider the combination of clothing from both of these robberies as compared to the other robberies, the possibility of coincidence seems so remote that in my view, the only reasonable inference is that Mr. Farah was Perpetrator #2 in all of the other robberies as alleged by the Crown.

168For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Farah is guilty of the charges in connection with the other robberies. In each case I find that he was Perpetrator #2 as alleged by the Crown and that he had his face masked and that he either had an imitation firearm in his possession or he must have been aware that Perpetrator #1 and/or Perpetrator #3 had one in his possession. As for Count 9, since the video evidence shows that Perpetrator #3 had a firearm out, even though it does not appear that Mr. Farah was in the ATM area to hear the announcement that they had a gun and a knife, I find that he must have seen it and known it was being used in the robbery. In the case of the robbery of Mr. Yang, where Perpetrator #1 was not observed, Mr. Yang saw a gun in the hands of each perpetrator.

Has the Crown proven beyond a reasonable doubt that Mr. Ulusow committed an attempted robbery of Mr. Hamilton on June 22, 2017?

169In light of Mr. Ulusow’s admissions when he testified in chief, the video evidence and the evidence I heard from Mr. Hamilton and the officers involved in his arrest, I have no difficulty in finding that the Crown has proven the charges against him of the attempted robbery of Mr. Hamilton, Count 22, having his face masked, Count 23, and having an imitation firearm in his possession for the purpose of committing the robbery, Count 24. He was not charged in connection with Mr. Farah’s possession of the meat cleaver.

Has the Crown proven beyond a reasonable doubt that Mr. Ulusow was one of the perpetrators in any of the other robberies?

170A key issue with respect to whether or not Mr. Ulusow is connected with any of the other robberies is how his DNA get on the Black Toque found in the Honda that I have found was the getaway vehicle used in some of the robberies. This toque was found in the duffle bag containing clothing that looks like the clothing worn by Perpetrator #3. It is admitted that this toque is not seen in any of the robberies.

171There were two theories presented as to how Mr. Ulusow’s DNA got onto the inside of the Black Toque. Ms. Bradstreet’s position is that Mr. Ulusow’s DNA got onto the inside of the Black Toque because it is his toque and he must have worn it and that this ties Mr. Ulusow to the Honda, the getaway car and this is not coincidental. Mr. Rodocker on the other hand argues that Mr. Ulusow’s DNA got onto the inside of the Black Toque because it was comingled with the clothing he was wearing at the time of his arrest.

172I have already reviewed all the evidence that I have on this issue. D.C. Joshi removed the Black Toque found in the Honda and a number of other items from a property locker that he referred to as a “temp” locker on June 23, 2017. Ms. Bradstreet submitted that what D.C. Joshi removed from the locker is what he decided to send to CFS but that is not correct. That said, I find that all of the items in the locker were seized from the Honda and D.C. Joshi considered which of those items should be sent to CFS for analysis.

173It is Mr. Rodocker’s position that based on the evidence of D.C. Joshi the clothing in the locker included the clothing worn by Mr. Ulusow at the time of his arrest and that the list that D.C. Joshi gave of what he removed from the locker was not a list of everything that was in the locker and that D.C. Joshi could not itemize everything in the locker. I do not accept that submission. D.C. Joshi gave no such evidence nor did his evidence give rise to such an inference. D.C. Joshi had notes of what was in the locker and all that his notes were lacking is that he could not say whether or not these items were stored separately or all together in the locker, as he had no notes about that. His evidence about what was in the locker was clear. I also note that the items D.C. Joshi testified that he removed from the locker matched the list of items that Officer Homiuk seized from the Honda and photographed. Furthermore, I agree with Ms. Bradstreet that as a matter of logic the police would not have thought to send any of the clothing worn by Messrs. Farah and Ulusow at the time of their arrest, to CFS as there was a record kept of what they were wearing and there could be no dispute about that. Furthermore, their clothing was seized by a different officer, D.C. Xiouris. There would have been no reason to keep that clothing with what was seized from the Honda or that it be considered for analysis by CFS.

174In summary, there was no suggestion that there were other items in the locker beyond the list of items D.C. Joshi testified to. D.C. Joshi clearly had notes of the items that were in the locker and that he removed. The only issue is that he could not say how these items were stored inside the locker and in particular he had no note that they were stored separately in the locker.

175For these reasons I conclude that the only possible source of transference of DNA from other items would be from the other items in the locker, all of which came from the Honda. There was no item of clothing in the locker that could have had Mr. Ulusow’s DNA apart from the Black Toque, given Mr. Ulusow’s evidence that he knew nothing of this Honda.

176I have also considered the evidence of Ms. Sloan that the amount of DNA that she found on the Black Toque exceeded the minimal threshold; it was at the ideal level, it was found on the inside of the toque and based on the photos taken by Officer Homiuk, the toque was not turned inside out when it was found, and that typically for transfer of DNA from one source to another source to occur there would need to be a wet source of DNA and good contact with pressure. Given that the Black Toque was inside the Honda, it would have been dry, and it was not raining when the Defendants were in the park and committed the attempted robbery so there would be no reason to think that their clothing was wet when it was seized. Therefore although Ms. Sloan agreed with Mr. Rodocker that it was possible that transfer could occur if the Black Toque was co-mingled in a bag with items of clothing that had Mr. Ulusow’s DNA, given that neither would have been wet, I do not see how, if I accept the rest of her evidence, that that could have occurred even if the clothing had been comingled.

177For these reasons, I conclude that the DNA on the Black Toque belonging to Mr. Ulusow is there because it was worn at some point by Mr. Ulusow. This means that he must have some connection to the Honda and that he was not truthful when he said he has no knowledge of the Honda or when he said that the Black Toque was not his.

178Ms. Bradstreet submitted that because Mr. Ulusow lied when he distanced himself from the Honda and said that the Black Toque was not his that I cannot rely on anything Mr. Ulusow says. I agree that this was a significant lie and although this does not mean that I should automatically reject all of his evidence, it is of significant concern.

179I turn then to Mr. Ulusow’s evidence that Cimarin gave him the Bleach Stained Hoodie, the firearm and other items for the robbery. I have already set out some of my concerns about that evidence. Mr. Rodocker submitted that Mr. Ulusow is not saying that this hoodie belonged to Cimarin or that Cimarin ever wore it. Given the evidence I have about Cimarin’s size, it seems unlikely that the Bleach Stained Hoodie would fit him; certainly, it would not fit him in the same way it fit the person who was Perpetrator #1 as seen in the videos.

180Mr. Rodocker submitted that the Bleach Stained Hoodie fits an average sized male. I agree. I am not able to see the size of this hoodie from the photographs as the label is not lying flat, but I agree with Ms. Bradstreet that based on the photographic and video evidence that the Bleach Stained Hoodie fit Perpetrator #1 in the same way as it fit Mr. Ulusow. It was not overly baggy or tight. It fit a little loose, similar to the way the other perpetrators wore hoodies as seen in the videos.

181I looked at the photographic and video evidence many times during the course of my deliberations. Although as I will come to, there are differences in the other articles of clothing that Mr. Ulusow was wearing when he was arrested as compared to what Perpetrator #1 wore in the robberies, I do find it significant that when Mr. Ulusow wore the Blue Stained Hoody during the attempted robbery of Mr. Hamilton, he had the hood up but had not pulled the draw string to tighten the hood around his face, as for example Mr. Farah had done when his wore his black jacket. When I checked the other robberies, I see that Perpetrator #1 wore the hood up in each robbery where he appears, but the hood was not drawn closed or tight around his face. In other words, Perpetrator #1 wore the Bleach Stained Hoodie in the same way as Mr. Ulusow did at the time he admits wearing it. This is in contrast to how the hood on the hoodie was worn by Perpetrator #2, whom I have found was Mr. Farah, whether he was wearing the Black Jacket or the Canada Hoodie, the third perpetrator in the robbery of Mr. Robinson, and Perpetrator #3 – all of these other perpetrators all wore hoods that were drawn tight around their faces during the robberies.

182In all of the robberies Perpetrator #1 wore a mask on his face allowing only his eyes to be seen. That mask was sometimes a dark colour and at other times appears to be a light grey.

183Mr. Rodocker argued that if Mr. Ulusow obtained clothes for the robbery as testified to by Mr. Farah, it is strange that he did not obtain a pair of gloves or dark pants. On the other hand, he allegedly took a meat cleaver and a gun. He submitted that Mr. Farah’s evidence in this regard is not capable of belief. I agree that that evidence seems incredible. Furthermore, there is no evidence of a meat cleaver being used in any of the other robberies. There were however different bladed weapons described. These are not always seen but in the robbery of Mr. Attard, Perpetrator #1 has what could be a screwdriver. It also seems that there were different imitation firearms being used. In the robbery of Mr. Iwankewycz, it looks like a silver firearm is being used and an imitation firearm was found in the Honda. What is perhaps unusual is that it does not seem that each perpetrator, assuming they were always the same person as the Crown asserts, had a particular weapon of choice.

184Mr. Rodocker argued that it is significant that Perpetrator #1 was always wearing gloves during the robberies; what appear to be white and grey gloves, and he relied on the fact that there is no evidence that Mr. Ulusow was wearing gloves during the attempted robbery of Mr. Hamilton. I have confirmed from the video evidence that when Mr. Ulusow entered the bank, he was not wearing gloves, unlike Mr. Farah, and there is no evidence that he was found in possession of any gloves. Mr. Ulusow was not asked why he was not wearing gloves.

185What also distinguishes Mr. Ulusow from Perpetrator #1 in the other robberies is that he was carrying his white T-shirt to cover the firearm. When I pointed this out to Ms. Bradstreet, she submitted that it was difficult to say if it was used in the other robberies. She said that Perpetrator #1 did have white fabric over his face, although she admitted that she could not say that it was the white shirt. I do not accept that submission. However, as Ms. Bradstreet submitted, this robbery was on Kipling Avenue, a busy street with cars passing, and it is reasonable to assume that Mr. Ulusow would have drawn a lot of attention if the gun had been exposed. Furthermore, since I presume the reason for gloves was to avoid leaving fingerprints, it is possible that Mr. Ulusow could have used the T-shirt to clean the ATM after he accessed it. He was not asked about this possibility.

186Mr. Rodocker submitted that on the robbery on June 8th of Mr. Robinson, Perpetrator #1 was wearing black sweatpants. He argued that if by June 22nd Mr. Ulusow was an old hand at this he was exhibiting no signs of his experience because instead of dark pants, he was wearing bright khaki pants and a distinctive black and white T-shirt. That T-shirt was not visible under the Bleach Stained Hoodie, so I do not find that significant, but I have considered the fact that Mr. Ulusow was not wearing dark coloured pants. However, on June 10, 2017, when Mr. Iwankewycz was robbed, on June 11th when Mr. Panchundcharam was robbed, and on June 18th when Mr. Attard was robbed, Perpetrator #1 was also wearing khaki or light grey pants. There is however nothing distinctive about any of these pants. Furthermore, the Crown did not suggest that Perpetrator #1 was wearing any distinctive shoes, nor have I been able to determine that. I find that the only thing that is distinctive about Perpetrator #1 is that he was wearing the Bleach Stained Hoodie with the hood up but the hood was not drawn tightly or at all around his face.

187Mr. Rodocker also submitted that the fact that clothing was found in the Honda that based on the video evidence was worn by Perpetrator #3 who participated in some of the robberies suggests that there were others involved in the ATM robberies other than Mr. Farah and Mr. Ulusow. I agree with that and as I have already stated, there could be as many as four young men involved in the series of robberies before this Court. Based on what I see from what was in the Honda however, everything that Perpetrator #3 was seen wearing in the videos; what I have described as the Striped Jacket and Pants and the black Adidas shoes, was all together in one bag, suggesting that the clothing each perpetrator wore was worn only by that perpetrator. It would have been different, if for example, a lot of clothing that appears to look like what we see in the videos was simply in a big pile in the back of the Honda. There was some loose clothing in the back of the Honda, but it was not the type of clothing worn by any of the perpetrators as it was clothing with a lot of unusual logos. There was also a Tommy bag in the back of the Honda that contained Nike pants and shoes and a hoodie with white rubber gloves in one of the pockets that presumably was being used for robberies. None of these articles of clothing appear in any of the robberies before the Court.

188Ms. Bradstreet submitted that Mr. Ulusow’s evidence does not make sense because if Cimarin gave him gear for the robbery as he testified it makes no sense that Cimarin would give the firearm to Mr. Ulusow rather than his brother. This is an important point in my view as there is no evidence from Mr. Ulusow to suggest that Cimarin knew that his brother had a meat cleaver and Mr. Ulusow testified that he did not know this.

189Mr. Rodocker challenged the Crown’s submission that the Defendants could not be this unlucky to be caught by police in their first and only robbery, and that the only reasonable inference is that they were involved in the others. It is his position that robberies are often committed by young foolish men and there always has to be a first time. I agree. It would be a mistake in my view to reason this way. The fact the Defendants were caught on the attempted robbery of Mr. Hamilton, in and of itself, does not assist me in determining whether or not they were involved in the other robberies.

190Mr. Rodocker submitted that the attempted robbery of Mr. Hamilton clearly depicted the Defendants as novices. He said the evidence of the false start was the best evidence of this. He argued that the first route they took was really bolting from one spot to the next and they both testified about an inability to complete their intended robbery and there is no alternative explanation but that they chickened out. He suggests this means they were novices at work. Ms. Bradstreet submitted in response that it was not a failed attempt. The Defendants were seen looking into the bank and she submitted they were just looking to see who was inside. There is no evidence as to who they saw. They could simply have changed their mind about the robbery given what they saw. It is only on the evidence of the Defendants that this was a false start. As for the alternate route, when she asked Mr. Ulusow why he took it he testified that they would be out of view from the person in the ATM. He and Mr. Farah could have realized that as a result of the false start. It does not in my view suggest inexperience. This was the only robbery at 2700 Kipling, of the robberies before this Court.

191I found both of these submissions persuasive. I certainly would not conclude that the fact the Defendants made this false start and changed their minds in and of itself suggested they were scared as opposed to their seeing someone in the bank or in a car passing by, that caused them to change their mind although I do not believe that Ms. Bradstreet put this proposition to them. Mr. Rodocker argued however that the first time the Defendants ran across Kipling, D.C. Xiouris passed them in his vehicle and that an experienced robber would have noticed this and realized that they had been spotted. The difficulty with this submission is that there is no suggestion that there was no traffic on Kipling at the time and D.C. Xiouris was in an unmarked car. The fact there were cars is why Mr. Ulusow said he was using the white T-shirt to hide the firearm-he did not want passing traffic to see the gun and be alerted. Furthermore, cars passing, such as the vehicle D.C. Xiouris was driving could have been the reason they turned back, and it could have nothing to do with them being nervous.

192Mr. Rodocker submitted that it does not appear that the same person is the same perpetrator in each robbery and that this calls into question whether or not Perpetrator #1 and Perpetrator #2 are the same in each robbery. It is his position that this evidence suggests that it is not a consistent trio who was committing these robberies and that this undermines the Crown’s argument that it is in fact the same person who is Perpetrator #1, who is wearing the Bleach Stained Hoodie.

193In support of his submission Mr. Rodocker took me through the video evidence of some of the robberies to attempt to establish differences in the size and height of the perpetrators from one robbery to the other. For example, he argued that in some robberies as the three perpetrators are about to exit the bank it seems that they are all roughly the same size, height and build. That however could be as a result of how the perpetrators are running and it is at odds to the extent the Complainants were able to describe the robbers as they distinguished them to some extent by height.

194With respect to the robbery on June 18th of Mr. Cutajar, Mr. Rodocker submitted that the best image of Perpetrator #1 appears in the video marked “door entry” at 12:12:51 a.m. He argued that the person shown at that point in the video does not look like Mr. Ulusow. He submitted that Mr. Ulusow is a very dark skinned male and the shape of his eyes and the bridge of his nose is different compared to the person in the video. Mr. Rodocker submitted that the eyes of Perpetrator #1 are more Caucasian and do not have the sharp corners of Mr. Ulusow’s and that the bridge of the nose looks different. It is his position that I could not conclude that this person looks like Mr. Ulusow. I have looked at this video and the others and compared them to the photograph taken of Mr. Ulusow at the time of his arrest. Given the quality of the videos, the fact that Perpetrator #1 was always masked, with only his eyes showing, I cannot see what Mr. Rodocker is referring to. I am not able to say whether or not Mr. Ulusow is Perpetrator #1 based on looking at him as compared to the images I see in the videos. His identification depends on the clothing he wore at the time of the attempted robbery of Mr. Hamilton and how he wore that clothing and the fact that he was with Perpetrator #2 whom I have found was Mr. Farah.

195In the same vein Ms. Bradstreet submitted that Perpetrator #1 moves in a similar way to Mr. Ulusow and that his run is somewhat distinct as his body is at a slant. To the extent that this can be seem from the way Mr. Ulusow ran out of the bank on June 22nd as compared to the other videos where Perpetrator #1 ran out, that is not something I observed. It is true that sometimes Perpetrator #1 appears to be almost lurching forward as he is running but he is running from police or someone else coming to the bank and so I do not find it very distinct. I am not able to say that Mr. Ulusow moves in the same way as Perpetrator #1.

196Nevertheless, for the reasons stated, given my concerns about the credibility of Mr. Ulusow’s evidence, given that I do not believe that he was given the Bleach Stained Hoodie by Cimarin, given the way he wore the hood of the Bleach Stained Hoodie on June 22nd, given Perpetrator #1 was wearing the hood of the Bleach Stained Hoodie at the other robberies in the same way, as well as the fact that in the other robberies Perpetrator #1 was found in the company of Perpetrator #2 and given my finding that Mr. Farah was Perpetrator #2 in the other robberies, in my view the only reasonable inference is that Mr. Ulusow was Perpetrator #1 in all of the other robberies as alleged by the Crown.

197For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Ulusow is guilty of the charges in connection with the other robberies. In each case I find that he was Perpetrator #1 as alleged by the Crown and that he had his face masked and that he either had an imitation firearm in his possession or he must have been aware that Perpetrator #2 and/or Perpetrator #3 had one in his/their possession.

Has the Crown proven beyond a reasonable doubt that the Defendants conspired together to commit the robberies?

198The final count to be considered is Count #1, has the Crown proven beyond a reasonable doubt that the Defendants conspired together to commit the robberies. Given the findings I have come to, there is no doubt that the Crown has proven beyond a reasonable doubt that the Defendants conspired to commit the robberies that I have found them guilty of.

Disposition

199Mr. Farah would you please stand.

200For the reasons I have given I find you guilty of Counts 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25.

201Mr. Ulusow would you please stand.

202For the reasons I have given I find you guilty of Counts 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, and 24.

Spies J.

Footnotes

1. 1Mr. Ulusow was not observed on the video of the robbery on June 15, 2017 and so only Mr. Farah has been charged with that robbery (Counts 13-15)
2. 2Only Mr. Ulusow was charged with the attempted robbery of Saverio Gennuso on June 10, 2017, Counts 5 and 6, as the Crown as there was only the only person seen on the video of that attempted robbery. When I considered the Crown’s Similar Fact Application, I concluded that I could not say that the masked male who briefly entered the ATM vestibule was wearing the Bleach Stained Hoodie, which the Crown alleged was worn by Mr. Ulusow. As a result, the Crown withdrew these charges.
3. 3Mr. Ulusow admits that this was an attempted robbery. Mr. Farah does not. That is an issue I must determine.
4. 4(1975), 1975 CanLII 43 (ON CA), 7 O.R. (2d) 750 (C.A.) aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824
5. 5[2019] O.J. No. 3105
6. 6(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.)
7. 72016 SCC 33
8. 82017 ONCA 696 at para. 21
9. 91991 CanLII 93 (SCC), [1991] 1 S.C.R. 742
10. 10See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13
11. 11See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).
12. 122001 CanLII 5328 (ON CA)
13. 131956 CanLII 150 (ON CA), 115 C.C.C. 18 (ON CA)
14. 14(1948), 1948 CanLII 17 (SCC), 91 C.C.C 97 (SCC)
15. 15(1978), 41 C.C.C. ((9) ON CA)