Court File and Parties

COURT FILE NO.: 0381A/18 DATE: 20200703 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – RAYMOND ELLIS, JEVANNY WALTERS, COLLIN WALTERS

Counsel: Matthew Bloch, for the Crown Luka Rados, for Raymond Ellis Samantha Saunders, for Jevanny Walters Katie Scott, for Colin Walters

HEARD: January 13, 20-24, & 28, and March 26, 2020

Reasons for Judgment

Garton J.

Introduction

[1] On June 29, 2020, the parties attended before me by way of a conference call. I read portions of my written reasons for judgment at that time but indicated that I would provide my written reasons, in full, which include photographs and screenshots from the surveillance footage, at a later date. These are those reasons.

[2] Jevanny Walters and Raymond Ellis are charged in Counts 1 and 2 of the indictment with unlawful confinement and robbery. The charges arose from the robbery of a gaming house in North York on February 3, 2018. During the course of the robbery, the perpetrators used duct tape to bind the hands of the complainant, Winston McKenzie, and another customer. The robbery, which was captured by a surveillance camera, was carried out by two males, one of whom brandished a handgun.

[3] Six days later, on February 9, 2018, another robbery at gunpoint took place at the same gaming house. This robbery was carried out by three males and was again captured by the surveillance camera. Counts 3 and 4 charge Jevanny Walters, his brother Collin Walters, and Raymond Ellis with the unlawful confinement and robbery of the gaming house’s cashier, Stephanie Mills. Again, the robbers used duct tape to bind the hands of customers. Ms. Mills’s hands, however, were not bound. Crown counsel conceded that Ms. Mills was not unlawfully confined. Accordingly, the three accused are found not guilty on Count 3.

[4] The main issue with respect to Counts 1, 2, and 4 is identification: that is, whether the Crown has established beyond a reasonable doubt that Jevanny Walters and Raymond Ellis perpetrated the robbery and unlawful confinement of Winston McKenzie on February 3, 2018, and whether they, along with Collin Walters, committed the robbery of the same gaming house on February 9, 2018.

[5] In addition to the viva voce evidence, the Crown relies on the following:

a) The surveillance footage of each robbery; b) Cell phone records; and c) Similar act evidence in relation to Jevanny Walters and Raymond Ellis. The similar act evidence is not applicable to Collin Walters as he is only charged in relation to the second robbery.

First Robbery: February 3, 2018

[6] The DVD recording of the robbery on February 3, 2018 shows that shortly after 11:35 a.m., according to the time stamp on the recording, two males robbed the Son Ben Thanh gaming house at 2437 Finch Avenue West in North York.

[7] One of the males, whom I will refer to as Robber #1, and whom the Crown alleges is the accused Jevanny Walters, entered while carrying a cell phone and stood at a gaming table. He conversed briefly with another patron, the complainant, Winston McKenzie. Mr. McKenzie testified that the male asked him how to play the machine. At 11:37:30, Robber #1 dialed a number on his phone. At 11:37:33, he put the phone to his ear. About a minute later, Robber #2, whom the Crown alleges is the accused Raymond Ellis, entered and brandished a handgun.

[8] Initially, Robber #1 pretended to be a victim of the robbery and crouched down at the end of the gaming table. However, Robber #2, within 30 seconds of entering, threw a roll of duct tape to Robber #1, who then got up and ordered Mr. McKenzie to put his hands behind his back and to keep his head down. Robber #1 then taped together Mr. McKenzie’s hands. As he did so, he placed a white plastic bag on the gaming table. Robber #1 also demanded that Mr. McKenzie give him his cell phone. Mr. McKenzie complied with that order.

[9] Robber #2, while pointing the gun at another victim who was lying on the floor, took money from that victim. Robber #1 later taped that victim’s hands together using the duct tape.

[10] Mr. McKenzie testified that while he was lying on the floor with his hands tied behind his back, he heard Robber #1 tell Robber #2 to shoot the cashier if he did not give him the money. Both robbers were in the office with the cashier at the time.

[11] After the robbers left, Mr. McKenzie freed his hands from the duct tape, tore off the tape from the hands of another patron, and went to a nearby gas station, where he called 911. He later returned to the gaming house with a police officer and provided a statement to police. He also located the cell phone that Robber #1 had taken from him earlier.

[12] Mr. McKenzie testified that the surveillance footage accurately depicts what happened during the robbery. Unlike the recording on February 9, the recording of the February 3 robbery has no audio component.

Second Robbery: February 9, 2018

[13] On February 9, 2018, the same gaming house was robbed again, this time by three men, one of whom was armed with what appears to be a handgun. According to the time stamp on the DVD recording, the robbery took place shortly after 10:00 p.m.

[14] The surveillance footage shows a male speaking on his cell phone inside the gaming house at approximately 10:05 p.m. The Crown alleges that this male was Collin Walters. He was wearing a construction vest and a red or orange hoody. The hoody was up over his head. A minute or so after this male put down his phone, two more robbers entered. One of these men, whom the Crown alleges is Raymond Ellis, pointed a handgun at the back of the male in the construction vest (alleged to be Collin Walters), who then pretended to be a victim by dropping down and crawling along the floor. However, within seconds, the gunman threw a roll of duct tape to this male, who then used it to bind the hands of other patrons. The man with the gun brandished it throughout the course of the robbery.

[15] The third robber, who entered the premise just behind the gunman and whom the Crown alleges is Jevanny Walters, took money from the cashier and placed it in a white plastic bag.

[16] The robbers exited the gaming house in the following order: the man in the construction vest and orange or red hoody, whom the Crown alleges is Collin Walters, followed by the man whom the Crown alleges is Jevanny Walters, followed by the gunman, whom the Crown alleges is Raymond Ellis.

[17] The evidence of Stephanie Mills was adduced by way of an agreed statement of facts. Ms. Mills was working as the cashier when the robbery took place. Her responsibilities included collecting money from the machines at the end of the day to give to her boss and paying any customers who had won money.

[18] On February 14, 2018, Ms. Mills met with the investigating officer, Detective Constable Jason Contant, who showed her the recording of the February 9 robbery. Ms. Mills confirmed that the recording accurately depicts the robbery. She pointed out herself, the three unknown males who committed the robbery, and the various customers who were gambling. She was not able to identify anyone. She had never seen any of the men before that night. She was never shown a photographic line-up.

[19] Prior to the robbery, the man in the construction vest had asked Ms. Mills for assistance in using one of the machines. Ms. Mills was reluctant to leave her station from behind the counter but eventually complied with his request. As she was speaking to him, the gunman entered and told everyone to “get down.” Ms. Mills could not say whether the gun was real but she described it as black, short, and small.

[20] The robber who entered after the gunman, whom the Crown alleges was Jevanny Walters, came toward her and asked her where the money was located. She told him that there was no money. This male then called out to the gunman.

[21] Ms. Mills was uncertain as to the amount of money taken but believed it was about $1,200. After the robbery, she instructed someone to call and notify her boss as to what had happened. She did not call the police.

[22] Ms. Mills was not present during the February 3, 2018 robbery and was never shown the DVD recording from that day.

Evidence Adduced by the Crown

Similar Act Evidence

[23] At the end of the Crown’s case, Crown counsel brought an application to allow the Crown to rely on evidence of similar acts as between counts in the indictment with respect to Jevanny Walters and Raymond Ellis.

[24] Counsel for Jevanny Walters and Raymond Ellis did not oppose the application.

[25] I was satisfied that the requirements governing the admissibility of similar act evidence as set out in R. v. MacCormack, 2009 ONCA 72, 64 C.R. (6th) 137, and other case law provided by the Crown had been met. Accordingly, I ruled that the Crown could rely on similar act conduct as between counts in the indictment with respect to Jevanny Walters and Raymond Ellis.

[26] The distinctive features unifying the two robberies include the following:

1. The same business was robbed on both occasions.
2. The robberies were carried out within a week of each other.
3. On each occasion, one robber entered the gaming house prior to the robbery.
4. The first robber that entered the gaming house spoke on his cell phone.
5. Shortly after the phone call ended, the other robber or robbers entered the gaming house.
6. The man with the gun was outside the gaming house prior to the robbery.
7. The surveillance footage shows that the same male brandished the handgun in both robberies. That individual wore the same black vest with diagonal stitching, a black hoody, black pants, black shoes, and black gloves.
8. In both robberies, the gunman threw a roll of duct tape to the robber who had entered the gaming house first and who had been on his cell phone prior to the robbery.
9. In both robberies, the robber who first entered the premise initially pretended to be a victim. However, after receiving the duct tape from the gunman, he used it to bind the hands of the customers.
10. Only one gun was used in each of the robberies.
11. The victims were lying on the floor when the robbers taped their hands together.

Testimony of Detective Constable Jason Contant

[27] Detective Constable Contant attended at the gaming house on February 14, 2018 and spoke to the owner of the business, Victor Tran. Officer Contant seized the DVD recordings of the two robberies and developed a multitude of screenshots or “stills” from them. The electronic versions of the stills (Exhibit 1) are somewhat clearer or brighter than the hard copies (Exhibit 9).

[28] Some of the stills were used in a Hold Up Squad Bulletin regarding the two robberies (Exhibit 13(a)). The bulletin contains photos of Robber #1 (whom the Crown alleges is Jevanny Walters) and the gunman (allegedly Raymond Ellis) from the February 3 robbery. It also contains smaller photos of the gunman (allegedly Raymond Ellis) and the male who entered with him on February 9 (allegedly Jevanny Walters). There are also two photos of the male in the construction vest and red or orange hoody, whom the Crown alleges is Collin Walters.

[29] The bulletin also included a still of the vehicle used by the robbers on February 3 and 9. The licence plate was not visible in either of the recordings. Officer Contant believed that the vehicle was possibly a newer model four-door Chevy Impala. After comparing it to Chevy images on the Internet, he thought it might be a 2010 model, but this was never confirmed. The vehicle was dark in colour, had five spoke rims, distinctive dark-tinted windows, and the left rear tail light was broken. It was apparent from the recording of the February 9 robbery, which took place at night, that the doors did not light up when opened.

[30] Officer Contant testified that he watched the recording of both robberies extensively.

[31] On February 21, 2018, Officer Contant and his partner, Detective Constable Moxam, were southbound on Keele Street near Eglinton Avenue when a “vehicle of interest” passed them. The officers followed it to a Caribbean-style restaurant, where a male exited the vehicle and went inside. The officers, who were in plainclothes, also entered the restaurant. Officer Contant testified that he immediately recognized the male, who was the accused Jevanny Walters, as one of the robbers he had seen in the February 3 and 9 surveillance footage.

[32] As the officers entered the restaurant, Jevanny Walters was speaking to a second male, whom Officer Contant also recognized from the surveillance footage as taking part in the February 9 robbery – more specifically, the male who entered first and was wearing the construction vest. Officer Contant identified himself, and advised this male, Collin Walters, that he was under arrest for armed robbery. Officer Moxam arrested Jevanny Walters.

[33] The car that Jevanny Walters was driving on February 21, 2018 was a 2010 Chevy Malibu. It was later searched by police, but nothing was seized. Officer Contant testified that he thought Jevanny Walters was driving a Chevy Impala on February 21, 2018. He explained that the Impala and Malibu are very similar in appearance.

[34] Officer Contant later learned that Collin Walters drove to the restaurant on February 21, 2018 in a Honda Civic.

[35] Photographs taken on February 21, 2018 of Jevanny Walters and Collin Walters in an interview room at the police station have been filed as exhibits – both electronic and hard copies.

[36] At the time of their arrest, Jevanny Walters and Collin Walters were each in possession of a cell phone. Both phones were seized. When Officer Contant called the number (647) 607-9925, the phone seized from Jevanny Walters rang. Similarly, when Office Contant called the number (647) 527-7822, the phone that had been seized from Collin Walters rang.

[37] On June 20, 2018, Officer Conant attended at 80 Orenda Court, Unit B4, in Brampton and spoke to Jamaal Ellis, who lived there with his older brother, the accused Raymond Ellis.

[38] Raymond Ellis was arrested on June 28, 2018. Exhibit 8 is a photograph taken of Mr. Ellis at the police station on that date.

Freedom Mobile Business Records

[39] Freedom Mobile business records, which were introduced through the witness Gord Kent, included:

i) cell phone records for the number (647) 607-9925 (“9925”). The records show that this number was registered to Jevanny Walters (D.O.B. August 25, 1992) of 80 Orenda Court, Brampton, Ontario, commencing on August 28, 2015, with an end date of February 24, 2018; ii) cell phone records for the number (647) 745-2790 (“2790”). The records show that this number was registered to Roy Anderson (D.O.B. November 1, 1988) with an address of 10 Marksbrook Lane, Unit 1102, Brampton, Ontario. The activation date was January 25, 2016, with an end or cancellation date of May 26, 2018; and iii) a “Customer Usage Report With Towers,” for the cell phone numbers 9925 and 2790, which covers the following time periods:

a) February 3, 2018 at 1:36:19 to February 4, 2018 at 22:39:40; and b) February 9, 2018, from 11:17:07 to February 10, 2018, at 21:45:48.

[40] Gord Kent testified that when a call is made on a cell phone, the system is designed to utilize the cell tower that gives the strongest signal, which is usually the closest tower. However, there are exceptions to this rule, such as when there are physical obstructions, network traffic issues, or large bodies of water.

[41] In terms of the Freedom Mobile tower system, Mr. Kent testified that generally speaking, the radius of the towers varies with the population density. The radius of towers in the downtown core varies from 500 metres to one kilometre. Outside the core, such as in North York, the radius ranges from one to two kilometres.

Capreit Limited Partnership Business Records

[42] The business records of Capreit Limited Partnership (“Capreit”) include a lease agreement between Capreit and the accused Raymond Ellis for Unit B4 at 80 Orenda Court in Brampton, commencing on May 1, 2017 and ending on April 30, 2018. The records indicate that the tenant, Raymond Ellis, provided to the landlord, Capreit, the personal contact number of (647) 745-2790. These records were introduced through the witness Satvir Hansra, who is the Associate Director of Operations for the building at 80 Orenda Court.

Bell Canada Business Records

[43] Bell Canada business records were introduced through the witness Denise Murley, an employee in Bell Canada’s Lawful Access Department. The records indicate that the number (647) 527-7822 (“7822”) was registered to Collin Walters of 49 Rathkeale Road, Apt. 907, Mississauga, Ontario.

[44] Bell Mobility’s “Calls and Events” record for 7822 covers the period between February 9, 2018, at 10:59:46 and February 10, 2018, at 21:45:45.

[45] Ms. Murley testified that as a general rule, when a call is made from a cell phone, the call will be picked up by or “ping” off the tower with the strongest signal. That tower is normally but not always the closest tower. Other factors that may affect which tower picks up the signal include weather, water, and buildings. Ms. Murley was unable to speak to the radius of signals emanating from any particular Bell Canada tower.

Google Maps

[46] A Google map shows that the distance between the gaming house at 2437 Finch Avenue West and the cell tower at 3400 Weston Road is approximately 469.24 metres.

[47] Another Google map shows that the distance between the gaming house and the cell tower at 35 Duncanwoods Drive is approximately 660.14 metres.

[48] Officer Contant, who worked out of 31 Division for seven years and was therefore very familiar with the Jane/Finch corridor, testified that these distances appear to be accurate.

[49] In R. v. Calvert, 2011 ONCA 379, [2011] O.J. No. 3086, the Court held that a trier of fact may take judicial notice of Google maps to assist in determining the distance between two locations because “maps are a readily accessible source of indisputable accuracy”: para. 8.

Defence Witnesses

[50] No witnesses were called on behalf of Jevanny Walters or Collin Walters.

[51] Raymond Ellis testified and denied any involvement in either of the robberies. He also testified that he had never met and did not know Jevanny Walters or Collin Walters.

[52] Raymond Ellis acknowledged that he had a cell phone with the 2790 number but testified that he stopped using it sometime in November 2017. He bought the phone at a flea market and used it for about a year or a year and a half. When he began to experience problems with it, he bought a new phone. He left the 2790 phone in his room for a while, but later gave it to his brother, Jamaal. He understood that Jamaal later sold it.

[53] Jamaal Ellis testified and supported Raymond’s evidence regarding the history and their use of the phone. He testified that Raymond gave him the phone with the 2790 number at the end of 2017, after Jamaal lost his own phone at a party. In early January 2018, Jamaal bought a new phone and sold the 2790 phone to another tenant who lived at 80 Orenda Court in Brampton.

[54] I will review the evidence of Raymond Ellis and Jamaal Ellis in more detail later on in these reasons.

Legal Principles

[55] The Crown relies on the surveillance footage of the robberies and the cell phone records to prove its case against each accused. The Crown also relies on similar act evidence with respect to the accused Jevanny Walters and Raymond Ellis.

The Surveillance Footage

[56] In R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 28, the Supreme Court recognized that high quality video surveillance can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime:

Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

Cell Phone Evidence

[57] The Crown relies on the cell phone records and cell phone tower evidence to show the approximate location of the accused and their movement in certain directions between locations. In R. v. Ranger, 2010 ONCA 759, at paras. 14 and 16-17, the Court of Appeal held that a trier of fact can rely on such records for that purpose:

The trial judge concluded that without expert evidence, he could take judicial notice of the approximate location of a cell phone at the time a particular call was made based on the cell phone tower that received the signal. Similarly, he could plot the directional movement of a cell phone over a particular time period by reference to the location of the different cell phone towers that received signals from that cell phone during that time period.

We note that the appellants concede that it is now notorious that cell phone users engaged in a cell phone call and travelling from point A to point B will find their cell phone signal passes from one cell phone tower to another at different locations along the route from point A to point B. We agree with and accept that concession. Given that concession, we do not think it can be argued that the trial judge erred in taking judicial notice that a particular cell phone was in a general location based on the tower that received the signal and that the path along which the cell phone was moving could be determined by reference to the cell phone towers that received the signal transmission in respect of particular calls.

In holding that the trial judge made no error by ruling that he did not require expert evidence on this issue and that he could take judicial notice, we stress that the Crown was seeking to use the cell phone evidence only to show the approximate location of the users and movement of the users in a certain direction between locations. In another case, the Crown may seek to rely on this kind of evidence for more specific or precise inferences. The defence may also satisfy the court that more specific or detailed inferences are relevant to the issues raised by the cell phone evidence. In those cases, the trial judge will require the Crown to lead the expert evidence necessary to address the more specific inferences that the Crown or the defence argue can or cannot be drawn from the evidence. On the specific facts of this case, the trial judge correctly determined that judicial notice could be taken of the general propositions outlined above.

[58] More recently, in R. v. Patterson, 2018 ONCA 774, at paras. 5-9, the Court of Appeal noted the probative value of cell phone records. The appellant in that case was charged with robbery and other related offences. The Crown sought to adduce records of a cell phone service provider to prove that signals from a phone found in the appellant’s possession and registered in his name were picked up by cell towers in the vicinity of the complainant’s residence prior to the robbery, in the late evening of January 5 and the early morning of January 6, 2013. Signals from the phone were also picked up by towers in the same area on the evening of January 6, when the robbery occurred. The appellant did not object to the admission of the cell phone records pertaining to the evening of the incident but sought to exclude the records from the late evening and early morning before the incident on the basis that their prejudicial effect exceeded their probative value. The Crown contended that the evidence supported an inference that the appellant was “scoping out the locale” for a potential robbery the night before the offence occurred.

[59] In admitting the evidence, the trial judge found that the cell phone records’ probative value was compelling and outweighed any prejudicial effect. The defence would have the opportunity to cross-examine the service provider witness concerning the reliability of the records and could argue before the jury that the witness was neither credible nor reliable. In closing submissions, defence counsel did, in fact, describe the Crown’s theory as speculative and suggested that the cell phone signals could have been affected by factors such as the topography of the area and by interference from nearby buildings.

[60] In finding that the cell phone records were properly admitted, the Court stated, at para. 9:

We see no error in the admission of the evidence. The inference sought by the Crown was available on that evidence. At the time of the incident, the appellant lived in Markham. The complainant lived on the other side of Toronto, in Etobicoke. The appellant’s presence in the vicinity of the complainant’s house the night before was of some value in assessing whether the appellant was involved in the incident the next day. It could also serve to rebut the appellant’s assertion that his presence in the area at the time of the offence was coincidental. The trial judge’s balancing of the probative value of the evidence against its prejudicial effect demonstrates no error and is entitled to deference.

Analysis and Findings

I. Jevanny Walters:

Counts 1 and 2: February 3, 2018 Robbery

[61] I will deal first with Counts 1 and 2 in the indictment in relation to Jevanny Walters: that is, whether the Crown has established beyond a reasonable doubt that Jevanny Walters unlawfully confined and robbed Winston McKenzie on February 3, 2018.

The Surveillance Footage: February 3, 2018

[62] The recording of the February 3 robbery is in colour and of good quality. The images are clear. There is no suggestion that the recording has been altered or changed. Mr. McKenzie testified that it accurately depicts what happened during the robbery.

[63] The recording was played a number of times during the trial. I have also watched it numerous times in my chambers. The recording can be put on pause and the images of Robber #1 can be studied and compared to the four photographs of Jevanny Walters taken by police after his arrest on February 21, 2018.

[64] I have also had the opportunity to compare screenshots of Robber #1 with the four arrest photographs of Jevanny Walters. The electronic copies of the stills can be magnified and are somewhat brighter than the hard copies. I note that Jevanny Walters’s current appearance is somewhat different from how he appeared in the police photographs. In particular, his hair was not in a bun during the trial.

[65] After carefully comparing the surveillance footage with Jevanny Walters’s appearance upon his arrest and at trial, I find that the recording of the robbery is cogent and compelling evidence that Jevanny Walters was the male referred to as Robber #1. The photographs and screenshots reproduced in these reasons support the proposition that they are one and the same person. In coming to this conclusion, I have cautioned myself, as I would a jury, with respect to the difficulties and frailties inherent in identification evidence.

[66] The time stamp on the recording shows that Robber #1 entered at 11:36:48 while holding a phone. He was not wearing a hat or mask or anything else that obstructed his face. He walked toward the camera and up to Mr. McKenzie, who was standing at the gaming table, and then stood beside him. Between 11:36:53 and 11:37:18, the robber’s facial features become more visible or distinct. Three screenshots taken during that time frame are set out below:

[67] The following are two of the four photographs taken of Jevanny Walters after his arrest on February 21, 2017:

[68] Robber #1’s face was out of the camera’s range while he was taping Mr. McKenzie’s hands together. However, at 11:39:34, he came back into view as he began taping another customer’s hands behind his back. During this process, from 11:39:46 to 11:39:51, Robber #1 stood up. His face is visible, and he can be seen calling out or saying something to someone. The screenshot at 11:39:48 captures him during this period when he was standing over the victim and holding the duct tape. This screenshot alongside an arrest photograph of Jevanny Walters is reproduced below:

Photo of Jevanny Walters (Arrest) February 21, 2018 Surveillance Recording February 3, 2018, 11:39:48

[69] A comparison of Jevanny Walters’s arrest photographs to the surveillance footage and screenshots taken from that footage show that Jevanny Walters appears to be the same age as the robber. He has the same build, skin tone, shape of face, hair colour, and facial features, including the forehead, nose, and brow line, as Robber #1. He had the same facial hair at the time, and an identical hair style. In fact, the size, shape, and position of the bun on Jevanny Walters’s head, as seen in the police photographs, appear to be identical to the size, shape, and position of Robber #1’s bun. I note that in the police photographs, a couple of loose braids are visible on the right side of his bun. Similar loose braids are also visible on the right side of Robber #1’s bun – they can be seen as he entered the premise and was walking toward the gaming table (see stills reproduced at 11:36:54: and 11:36:56 at para. 66 of these reasons) and are also visible in the still photograph at 11:39:48, when that image is magnified.

[70] Robber #1’s hairline on the right side of his forehead, temple, and sideburn area, as well as the facial hair on the right side of his face are visible on the surveillance footage from 11:37:02 to 11:37:33, and intermittently thereafter, as well as in the screenshot at 11:37:31 (see photograph at para. 74 of these reason). This pattern of hair growth is the same as Jevanny Walters’s hair line and pattern of hair growth along the right side of his face, as seen in the police photos taken on February 21, 2018.

[71] In summary, and as stated earlier, the surveillance footage of the robbery is cogent and compelling evidence that Jevanny Walters was the male referred to as Robber #1.

Cell Phone Records: February 3, 2018

[72] In addition to the surveillance footage of the robbery, the Crown relies on cell phone records.

[73] The Freedom Mobile records indicate that Jevanny Walters was the registered customer for phone number (647) 607-9925, with an address of 80 Orenda Court in Brampton. This phone was in Jevanny Walters’s possession when he was arrested on February 21, 2018. It rang when Officer Contant called that number.

[74] The surveillance footage shows Robber #1 dialing a number on his cell phone at 11:37:31, and holding the phone to his ear at 11:37:33, as seen in the still images reproduced below:

[75] The timing of this call, assuming for the moment that the time stamp of 11:37:33 on the surveillance footage is accurate, coincides closely – within 11 seconds – with a call made on Jevanny Walters’s cell phone. The records show that on February 3, 2018, at 11:37:45, a call lasting 36 seconds was made from Jevanny Walters’s phone to a cell phone with the number (647) 745-2790. The Freedom Mobile records for 2790 reflect the same information regarding this call, but with a four-second difference: they show that the call lasted 36 seconds but that it was received by 2790 at 11:37:49. Mr. Kent explained that there may be slight discrepancies between the timing of the same call on different records.

[76] The Crown alleges that the 2790 phone belonged to the gunman (whom the Crown alleges was Raymond Ellis), and that Jevanny Walters called the gunman from inside the gaming house. It is noteworthy that seconds after the call between Jevanny Walters and 2790 ended, the gunman entered the gaming house: according to the cell phone records, the call on Jevanny Walters’s phone ended at 11:38:21 and, according to the time stamp on the surveillance footage, the gunman entered 12 seconds later, at 11:38:33.

[77] Counsel for Jevanny Walters, as well as counsel for Collin Walters, submit that absent any evidence from the owner of the gaming house to establish the accuracy of the time stamps on the recording, there is no way of knowing when the robbery took place or when Robber #1 dialed the call and put the phone to his ear. The most that can be said is that he made the call sometime on February 3, 2018. The Crown has therefore failed to establish any correlation between the call made by Robber #1 and the call made on Jevanny Walters’s phone the same day at 11:37:45.

[78] Crown counsel submits that the accuracy of the time stamps on the DVD recordings can be inferred when those times are considered along with the Nikolovski evidence and the phone records. He noted that the phone records show not only when calls were made but also the general location of the caller based on the tower that received the signal. In addition, the path along which a cell phone is moving or a change in location of the cell phone can be determined by reference to the cell phone towers along the way.

[79] The phone records in the present case indicate that in the early hours of the morning on February 3, 2018, Jevanny Walters was in the general location of his home at 80 Orenda Court in Brampton and that he travelled later that morning to North York, where he called the 2790 number. He later returned to Brampton. The specifics of those calls are as follows:

A call made at 2:04 a.m. on Jevanny Walters’s phone (9925) was picked up by the tower at 80 Orenda Court in Brampton, which was the address provided to Freedom Mobile when the phone was registered to Jevanny Walters. Later that morning, at 11:37:45, a call made on Jevanny Walters’s phone (9925) to 2790 was picked up by the tower at 3400 Weston Road in North York, which is only 470 metres from the gaming house at 2437 Finch Avenue West. At 15:20:07, a call made on Jevanny Walters’s phone (9925) was picked up by the tower at his address at 80 Orenda Court in Brampton.

[80] Significantly, the records for 2790 show a similar pattern of travel for the user of that phone on February 3, that is, movement in the morning from Brampton to North York and then back to Brampton in the afternoon. In particular, both Jevanny Walters and the user of 2790 were in North York and in the same general vicinity when Jevanny Walters called 2790 at 11:37:45 – the signals from both their phones were picked up by the tower at 3400 Weston Road:

A call at 8:24:50 made on 2790 was picked up by the tower at 80 Orenda Court in Brampton. The call received on 2790 at 11:37:49, which was the 36-second incoming call from Jevanny Walters’s phone (9925), was picked up by the tower at 3400 Weston Road in North York, which was 470 metres from the gaming house. Less than an hour later, at 12:28:11, a call made on 2790 was picked up by the tower at 80 Orenda Court in Brampton.

[81] Counsel for Jevanny Walters submits that the location of the towers is not informative, given the various factors, such as physical obstructions, network traffic, or large bodies of water, that can affect which tower picks up a cell phone’s signal. Although these factors must be borne in mind, I also note that both Mr. Kent and Ms. Murley testified that as a general rule, the cell tower that gives the strongest signal is usually the closest tower.

[82] Counsel for Jevanny Walters submits that the towers are of no assistance in determining the precise location of a phone, given the evidence of Gord Kent that the towers have a 500-metre to 2000-metre radius.

[83] Although a phone’s precise location cannot be determined from the location of a tower, the phone records do provide circumstantial evidence of an association between Jevanny Walters and the user of the 2790 phone and of their movements on February 3. As noted earlier, both phones were in Brampton in the morning, and bounced off the tower at 80 Orenda Court, where Jevanny Walters lived. At 11:37:45, the signals from both phones were picked up by the tower at 3400 Weston Road in North York, which is less than 500 metres from the gaming house. Both phones were back in Brampton in the general vicinity of 80 Orenda Court later that afternoon.

[84] A consideration of the Nikolovski evidence and the phone records, in conjunction with the time stamps on the surveillance footage, leads me to conclude that the time stamps on the surveillance footage are accurate.

[85] First, according to Winston McGregor’s testimony, the DVD recording equipment was functioning properly on February 3 in the sense that it accurately recorded events during the robbery.

[86] Second, given the physical appearance of Robber #1 and that of Jevanny Walters as he appears in his arrest photographs, the surveillance footage is, in itself, cogent and compelling evidence that Jevanny Walters was the male referred to as Robber #1. There are no apparent physical dissimilarities.

[87] Third, according to the time stamp on the recording, Robber #1 made a call at 11:37:33. Jevanny Walters’s phone records indicate that he made a call on his phone to 2790 at virtually the same time. The phone records also indicate that when Jevanny Walters made that call, he was not in Brampton, where he lived and where he had been earlier that morning. Rather, he was in North York and in the same general location where the robbery took place. He later returned to Brampton.

[88] The DVD recording, which is the basis of the Nikolovski evidence, Jevanny Walters’s phone records, and the time stamps on the recording itself, are mutually reinforcing pieces of evidence. Together, they give rise to the strong inference that the time stamps on the recording are accurate.

Conclusion with respect to Counts 1 and 2

[89] The resemblance between Jevanny Walters and Robber #1 is self-evident. In addition, the phone records show that Jevanny Walters called 2790 at the same time that Robber #1, as seen in the surveillance footage, made a call on his cell phone. Seconds after Jevanny Walters’s call to 2790 ended, the gunman entered the gaming house.

[90] The phone records show that Jevanny Walters, who lived in Brampton, was in the general vicinity of his residence at 80 Orenda Court on the morning of February 3. However, at the time of the robbery and when he was making the call to 2790, he was in North York in the general vicinity of the gaming house. By 3:20 p.m., he was back in the vicinity of his residence at 80 Orenda Court in Brampton.

[91] The cell phone records show that the user of phone 2790 had a similar pattern of travel that day: the user of 2790 was in the vicinity of 80 Orenda Court in Brampton in the morning, in North York in the general vicinity of the gaming house at the time of the robbery when Jevanny Walters called 2790, and was back in the vicinity of 80 Orenda Court sometime after the robbery.

[92] Based on the totality of the evidence, including the Nikolovski evidence and cell phone records, the only reasonable inference available is that Jevanny Walters was the male referred to as Robber #1 in the February 3 robbery. The Crown has established its case on Counts 1 and 2 beyond a reasonable doubt. Jevanny Walters is accordingly found guilty on both of those counts.

Count 4: February 9, 2018 Robbery

The Surveillance Footage: February 9, 2018

[93] Given the accuracy of the time stamps on the February 3 surveillance footage, it is reasonable to infer that the time stamps on the February 9 surveillance footage are also accurate.

[94] Unlike the robbery on February 3, the February 9 robbery was carried out by three, as opposed to two individuals. However, the gunman was clearly the same person in both robberies. The modus operandi was also the same. The first robber entered on his own, pretended to be a customer, and was on his cell phone. Shortly after that call ended, the gunman entered. (During the February 9 robbery, a third robber, whom the Crown alleges was Jevanny Walters, entered with the gunman.) The robber who entered first initially pretended to be a victim. However, after being thrown a roll of duct tape by the gunman, that robber proceeded to bind the hands of the other patrons after they were ordered or forced to the floor.

[95] The recording of the February 9 robbery, like that of the robbery on February 3, is in colour and of good quality. The images are clear. There is no suggestion that the recording has been altered or changed. The cashier, Stephanie Mills, confirmed that it accurately depicts what took place during the robbery.

[96] As was the case with respect to the February 3 surveillance footage, I have had the opportunity to play and replay the recording of the February 9 robbery. I have been able to pause it and compare images of the third robber who entered with photographs taken of Jevanny Walters on February 21, 2018, following his arrest. I have also had the opportunity to compare screenshots of the third robber with Jevanny Walters’s arrest photographs. In making those comparisons, I bear in mind the difficulties and frailties with respect to identification evidence.

[97] The third robber was wearing what appears to be a knitted hat that covered his hair. However, his facial features and facial hair are visible. The facial hair of the robber is the same as that of Jevanny Walters in the police photographs. The robber’s age, build, skin tone, shape of face, and facial features appear to be the same as those of Jevanny Walters. I also note that although the robber’s hair was covered by his hat, that hat appears to have taken the same shape as Jevanny Walters’s bun, as seen in his arrest photographs. In making these observations, I refer in particular to the surveillance footage at: 22:09:12 to 22:09:13; 22:09:16 to 22:09:17; 22:09:49; 22:10:27 to 22:10:30; 22:11:07 to 22:11:18; and 22:11:19. I also refer to the screenshots reproduced in exhibit 9 at pages 16, 18, 20, and 21.

[98] Having compared Jevanny Walters’s arrest photographs with the surveillance footage and screenshots of the third robber who entered the gaming store on February 9, 2018, I am of the view that the surveillance footage is cogent evidence that Jevanny Walters was that robber.

Cell Phone Records: February 9, 2018

[99] Crown counsel submits that the cell phone records for February 9, 2018 show that Jevanny Walters was with the gunman (user of 2790) at or in the vicinity of 80 Orenda Court in the early evening and that they travelled together to pick up Collin Walters near 2100 Bovaird Drive East in Brampton around 8:30 p.m. From there, it is alleged that they drove to the gaming house on Finch Avenue West in North York to commit the robbery.

[100] In support of his submission that Jevanny and Collin Walters were both in the general vicinity of the gaming house shortly before and at the time of the robbery, Crown counsel relies on the fact that when Jevanny called Collin at 21:30:29, at 21:32:50, and again at 22:01:27, signals from both of their phones were picked up by a cell tower at 3400 Weston Road in North York, which was 470 metres from the gaming house. The latter call lasted slightly more than six minutes. Crown counsel noted that when the robber in the construction vest (alleged by the Crown to be Collin Walters) is seen in the gaming house at 22:05:37, he was on his phone. Crown counsel submits that he was still speaking to Jevanny Walters. In further support of this submission, the Crown relies on the surveillance footage that shows that the robber in the construction vest put down his phone at 22:07:37, which is virtually the same time that the call between Jevanny and Collin Walters ended. At 22:09:08, or one and a half minutes after their call ended, the gunman and the male alleged to be Jevanny Walters entered the gaming house. All three robbers were out the door by 22:11:30 and left the scene in the same vehicle in which they had arrived. The cell phone records show that 18 minutes after the robbers left, Jevanny Walters was in Mississauga and that he was back in Brampton at or in the vicinity of his residence at 80 Orenda Court by at least 11:37 p.m.

[101] A review of the cell phone records shows that Jevanny Walters (phone number 9925) and Collin Walters (phone number 7822) contacted each other on multiple occasions on February 9, 2018. Collin Walters was also in contact with the user of 2790 on multiple occasions that day. There is a slight discrepancy – a matter of a few seconds – between the Freedom Mobile and Bell records with respect to the timing of their calls. As indicated earlier, Gord Kent explained that slight discrepancies between different records is not unusual.

[102] Jevanny Walters’s cell phone records indicate that he was in Hamilton on February 9 between 1:10 p.m. and 6:54 p.m. There were four calls between Jevanny Walters and Collin Walters during that period.

[103] A call by Jevanny Walters to Collin Walters at 7:09 p.m. shows that Jevanny Walters was in Mississauga. However, all the calls made by Jevanny Walters between 7:35 p.m. and 8:17 p.m. bounced off the tower at 80 Orenda Court in Brampton. Two of those calls were to Collin Walters – one at 8:13 p.m. and another at 8:17 p.m.

[104] Jevanny Walters’s cell phone did not bounce off any towers between 8:17 p.m. and 9:25 p.m. However, a call that he received at 9:25 p.m. bounced off a tower at 25 Duncanwoods Drive, which is only 660 metres from the gaming house in North York.

[105] The cell phone records for 2790 show that the user of that phone was also in the vicinity of 80 Orenda Court in Brampton on February 9. Calls made to or received by 2790 between 10:00 a.m. and 8:27 p.m. were all picked up by a tower at that address, including the following five calls between 2790 and Collin Walters:

Calls from Collin Walters to 2790 at 4:08 p.m., 5:41 p.m., and 7:34 p.m.; and Calls from 2790 to Collin Walters at 5:51 p.m. and 8:27 p.m.

[106] Collin Walters’s cell phone records for February 9 indicate that he was in Orangeville that afternoon. However, the records indicate that between 7:31 p.m. and 8:44 p.m., he was in the vicinity of 2100 Bovaird Drive East in Brampton, where the Crown alleges that he was picked up by the user of 2790 and Jevanny Walters. Nine of the calls made between 7:33 p.m. and 8:27 p.m. include the following:

A call from Collin Walters to Jevanny Walters at 7:33 p.m.; A call from Collin Walters to 2790 at 7:34 p.m.; A call from Collin Walters to Jevanny Walters at 7:35 p.m.; A call from Collin Walters to 2790 at 7:36 p.m.; A call from Collin Walters to Jevanny Walters at 8:12 p.m.; Calls from Jevanny Walters to Collin Walters at 8:13 p.m. and 8:17 p.m.; A call from Collin Walters to 2790 at 8:18 p.m.; and A call from 2790 to Collin Walters at 8:27 p.m.

[107] Three further calls, at 8:32 p.m., 8:43 p.m. and 8:44 p.m., all of which were from 2790 to Collin Walters, indicate that Collin Walters was still in the general vicinity of 2100 Bovaird Drive East at those times. However, the user of 2790 was “on the move” by then and no longer in the area of 80 Orenda Court. The Brampton towers that picked up those three calls indicate that 2790 was in the general vicinity of Highway 410 & Williams Parkway, 2250 Bovaird Drive East, and 2100 Bovaird Drive East, respectively, at those times.

[108] As noted earlier, Jevanny Walters’s phone did not bounce off any tower between 8:17 p.m. and 9:25 p.m. However, a call that he received at 9:25 p.m. bounced off a tower at 25 Duncanwoods Drive in North York, which is only 660 metres from the gaming house.

[109] Calls made by Jevanny Walters to Collin Walters at 21:30:29 and 21:32:50 show that they were both in the general vicinity of 3400 Weston Road, which is 470 metres from the gaming house.

[110] At 21:38:06, Collin Walters called Jevanny Walters. Collin Walters’s call was picked up by a tower at 3400 Weston Road. Jevanny Walters’s call was picked up by the tower at 25 Duncanwoods Drive.

[111] At 22:01:27, Jevanny Walters called Collin Walters. Once again, the signals from both phones were picked up by a tower at 3400 Weston Road. The call is recorded in Jevanny Walters’s phone records as having lasted six minutes and 13 seconds, which means that it would have ended at 22:07:40. According to Collin Walters’s phone records, the call began at 22:01:24 and lasted six minutes and 18 seconds, ending at 22:07:42. This slight discrepancy between the records is, according to Gord Kent, inconsequential.

[112] The surveillance footage of the robbery on February 9 commences at 22:05:37, at which time the robber in the construction vest is seen in the gaming house and speaking on his phone. The position of the Crown is that this robber is Collin Walters and that he was partway through his six-minute and 13-second call from Jevanny Walters, which had commenced at 22:01:27.

[113] It is noteworthy that the robber in the construction vest put down his phone at 22:07:37, which is virtually the same time that Jevanny Walters’s and Collin Walters’s phone records indicate that their call ended – either at 22:07:40 or 22:07:42, respectively.

[114] At 22:09:08, or one and a half minutes after Jevanny and Collin Walters ended their call, the gunman and the male whom the Crown alleges is Jevanny Walters, entered the gaming house. The three robbers left the premise at 22:11:30.

[115] According to Detective Constable Conant, the surveillance footage shows that on both February 3 and 9, 2018, the robbers arrived and left the scene of the robbery using a vehicle. Jevanny Walters’s cell phone records for February 9 are consistent with his having travelled by car from North York back to Brampton that night: at 22:28:56, or about 18 minutes after the robbers left the gaming house, a call made by Jevanny Walters was picked up by a tower in Mississauga. The records also show that he was back at or in the vicinity of his residence at 80 Orenda Court in Brampton by at least 23:37:15.

[116] Reasonable inferences to be drawn from the February 9 cell phone records, together with the surveillance footage, include the following:

i) Jevanny Walters and the user of 2790 travelled together from the area of 80 Orenda Court in Brampton. They left that area around 8:30 p.m.; ii) Jevanny Walters and the user of 2790 picked up Collin Walters in the general vicinity of 2100 Bovaird Drive East in Brampton sometime after 8:44 p.m., when both the 2790 phone and Collin Walters’s phone bounced off a tower at that address; and iii) Jevanny Walters, the user of 2790, and Collin Walters travelled together to the general vicinity of 3400 Weston Road in North York, which was less than 500 metres from the gaming house: signals from both Jevanny Walters’s phone and Collin Walters’s phone bounced off a tower at that address during the calls made by Jevanny to Collin at 21:30:29, at 21:32:50, and again at 22:01:27.

[117] A strong piece of circumstantial evidence connecting Jevanny Walters to the robbery is the call made by him to Collin Walters at 22:01:27, which lasted six minutes and 13 seconds and during which both parties were in North York. This call would have been ongoing when the robber in the construction vest is seen in the gaming house at 22:01:24. The surveillance footage shows that that robber was, in fact, on his phone at that time, and that he ended the call at 22:07:37, which is the same time that Jevanny and Collin Walters ended their call. One and a half minutes later, the gunman and the third robber entered the gaming house. That third robber’s physical appearance is completely consistent with Jevanny Walters’s physical appearance as shown in his arrest photographs and, along with the phone records, constitutes cogent and compelling evidence that he was, in fact, the robber who entered with the gunman.

Similar Act Evidence

[118] The similar act evidence is additional circumstantial evidence that supports the conclusion that Jevanny Walters committed the robbery on February 9.

[119] The cumulative effect of the similarities between the robberies, which were only six days apart, is such that it is highly likely that the same individuals who robbed the gaming house on February 3 also robbed it on February 9. While the second robbery has the notable feature of a third participant, this fact does not detract from the general modus operandi – that is, the use of an “inside man” on the phone and the entry by other perpetrators shortly after the phone call ends. The introduction of the third participant on February 9 was arguably necessitated by the fact that the inside man on February 3 did not cover his face during the robbery and, as a result, could have been recognized as a robber if he played the same role at the same establishment on February 9.

[120] As stated, the modus operandi was the same in both robberies. One robber first entered the gaming house, pretended to be a customer, and was on his cell phone. Shortly after that call ended, the gunman entered. The gunman was clearly the same individual in both robberies – he was dressed in exactly the same clothing in each instance. In both robberies, the robber who entered initially pretended to be a victim and dropped or crouched down to the floor. However, after being thrown a roll of duct tape by the gunman, that robber proceeded to bind the hands of the other patrons after they had been forced or were ordered to the floor. Only one gun was used during the robberies.

[121] For the reasons already stated, I have found that the Crown has established beyond a reasonable doubt that Jevanny Walters was the robber referred to as Robber #1 in the February 3 robbery.

[122] As noted earlier, the physical appearance of the robber who entered with the gunman on February 9 is completely consistent with Jevanny Walters’s physical appearance as shown in his arrest photographs.

[123] Other similar act evidence between the counts in the indictment includes the following:

i) At the time of both robberies, signals from Jevanny Walters’s cell phone bounced off cell towers in the vicinity of the gaming house in North York, thereby showing his presence there despite the fact that he lived in Brampton; ii) At the time of both robberies, Jevanny Walters was in contact with another cell phone that was also in the vicinity of the gaming house; that is, 2790 on February 3, 2018, and Collin Walters’s cell phone number, 7822, on February 9, 2018; and iii) The robberies took place almost immediately after those phone calls ended.

[124] The objective improbability of coincidence of this similar act evidence, when taken cumulatively, gives it significant probative force.

Conclusion with respect to Count 4

[125] Based on the totality of the evidence, including the February 9 surveillance footage, the Nikolovski evidence, cell phone records, and the similar act evidence, I find that the only reasonable inference to be drawn is that Jevanny Walters was the robber who entered the gaming house with the gunman on that date. The Crown has established its case on count 4 beyond a reasonable doubt. Jevanny Walters is accordingly found guilty on that count.

II. Collin Walters

Count 4: February 9, 2018 Robbery

[126] The circumstantial evidence upon which the Crown relies to prove its case on Count 4 with respect to Collin Walters includes the surveillance footage and the cell phone records.

The Surveillance Footage: February 9, 2018

[127] According to the cashier, Stephanie Mills, the surveillance footage accurately depicts the robbery. For the reasons already given, I am satisfied that the time stamps on the February 3 surveillance footage are accurate and that it is reasonable to infer that the time stamps on the February 9 surveillance footage are also accurate.

[128] As noted earlier, the recording of the February 9 robbery is in colour and of good quality. I have had the opportunity to play and replay the recording. I have been able to pause it and compare the images of the robber in the construction vest to the photographs taken of Collin Walters on February 21, 2018 following his arrest. I have also compared the screenshots of the robber to Collin Walters’s police photographs.

[129] There are a number of times during the surveillance footage when the robber in the construction vest looks toward the camera. The following stills are two such examples:

[130] Other points when the robber is looking toward the camera include the footage at 22:07:39 and 22:09:57.

[131] The following are two photographs taken of Collin Walters after his arrest:

[132] The robber’s hair is not visible in the surveillance footage. Collin Walters’s shape of face, skin tone, facial hair, facial features, and stature appear to be consistent with those of the robber.

Cell Phone Records: February 9, 2018

[133] I have already reviewed in some detail the cell phone records relating to February 9, 2018. Briefly, the records show that on that day, Collin Walters was in contact on multiple occasions with both Jevanny Walters and the user of 2790. He was in Orangeville in the afternoon but in Brampton shortly after 7:00 p.m. Calls on his cell phone between 7:33 p.m. and 8:44 p.m. bounced off a tower at 2100 Bovaird Drive East in Brampton.

[134] Nine of the calls made between 7:33 p.m. and 8:27 p.m. include the following:

A call from Collin Walters to Jevanny Walters at 7:33 p.m.; A call from Collin Walters to 2790 at 7:34 p.m.; A call from Collin Walters to Jevanny Walters at 7:35 p.m.; A call from Collin Walters to 2790 at 7:36 p.m.; A call from Collin Walters to Jevanny Walters at 8:12 p.m.; Calls from Jevanny Walters to Collin Walters at 8:13 p.m. and 8:17 p.m.; A call from Collin Walters to 2790 at 8:18 p.m.; and A call from 2790 to Collin Walters at 8:27 p.m.

[135] Three further calls, at 8:32 p.m., 8:43 p.m. and 8:44 p.m., all of which were from 2790 to Collin Walters, indicate that Collin Walters was still in the general vicinity of 2100 Bovaird Drive at those times. However, the user of 2790 was “on the move” and no longer in the area of 80 Orenda Court. The Brampton towers that picked up those three calls indicate that 2790 was in the general vicinity of Highway 410 & Williams Parkway, 2250 Bovaird Drive East, and 2100 Bovaird Drive East, respectively, at those times. The clear and compelling inference to be drawn is that Collin Walters met up with the user of 2790 in the vicinity of 2100 Bovaird Drive East.

[136] From 21:30:19 to 22:01:24, there were four calls between Collin Walters and Jevanny Walters. On all four calls, Collin Walters’s cell phone bounced off a tower at 3400 Weston Road, which is 470 metres from the gaming house.

[137] The records show that Jevanny Walters was also in the vicinity of 3400 Weston Road when he called Collin Walters at 22:01:24. This call lasted 6 minutes and 18 seconds, or until 22:07:42. As previously noted, there is a slight discrepancy between Jevanny Walters’s cell phone records and Collin Walters’s cell phone records. Jevanny’s records show that the call was made at 22:01:27 and lasted 6 minutes and 13 seconds, or until 22:07:40.

[138] The surveillance footage of the robbery commences at 22:05:37, at which time the robber in the construction vest is speaking on his cell phone. At 22:07:37, the robber in the construction vest put down his phone, which is virtually the same time that Jevanny and Collin Walters ended their call, which was at either at 22:07:40 or 22:07:42, respectively, according to the cell phone records. Less than two minutes after his call with Collin Walters ended, Jevanny Walters entered the gaming house behind the man with the gun.

[139] The surveillance footage together with the cell phone records provide extremely compelling evidence that the robber in the construction vest was Collin Walters. Based on the surveillance footage and cell phone records, the only reasonable inference to be drawn is that Collin Walters travelled to the area of 2437 Finch Avenue West with Jevanny Walters and the user of 2790. Collin Walters then split from them, entered the gaming house, scoped it out, and alerted Jevanny Walters, with whom he was speaking on his phone while he was in the gaming house, as to when the robbery could commence. Shortly after Collin Walters communicated that information to Jevanny, their call ended, and Jevanny and the gunman entered the premise.

Conclusion on Count 4 with respect to the Accused Collin Walters

[140] The Crown has established its case on Count 4 with respect to Collin Walters beyond a reasonable doubt. Collin Walters is accordingly found guilty on that count.

III. Raymond Ellis

Counts 1, 2, and 4: February 3 and February 9 Robberies

[141] Raymond Ellis, age 30, denied any involvement in the robberies on February 3 and 9, 2018. He testified that he had never been to the gaming house at 2437 Finch Avenue West in North York and denied knowing or ever having met either Jevanny or Collin Walters. He acknowledged having a cell phone with the number 2790 but denied that it was in his possession in February 2018, as he had given it to his younger brother, Jamaal Ellis (“Jamaal”) around the end of 2017.

[142] Jamaal testified and supported Raymond’s evidence with respect to the phone. Jamaal testified that he kept the phone that Raymond had given him until early January 2018, when he sold it and bought a new phone. Jamaal denied being involved in either of the robberies.

[143] The principles in R. v. W.(D.), [1991] 1 S.C.R. 742, apply in determining whether the Crown has established beyond a reasonable doubt that Raymond Ellis was the gunman in either or both robberies.

Testimony of Raymond Ellis

[144] Mr. Ellis was born and raised in Etobicoke and has a Grade 12 education. He currently lives in Alliston with his partner and three children and runs a take-out restaurant in Wasaga Beach. He opened this business in the spring of 2019. Prior to that, he worked for Gilbert Steel Ltd. He was hired by that construction firm in 2009 and was employed there as a rodman in early 2018. Some of the job sites where he worked in early 2018 included the company’s prefab yard in Mississauga, the Pearson International Airport, and the emerging Eglinton Crosstown LRT (Light Rail Transit) in Toronto. His hours were from 7:00 a.m. to 3:00 p.m. During the winter, when the construction business slowed down, he had a part-time job as a forklift operator, where he worked from 5:00 p.m. to midnight.

[145] Raymond Ellis’s criminal record is as follows:

January 27, 2010: (1) Fail to Comply with a recognizance (2) Assault with intent to resist arrest Suspended sentence & 12 months’ probation, concurrent on each count.

February 27, 2015: Possession of a firearm knowing its possession was prohibited, contrary to s. 92(1) of the Criminal Code (2 counts) Seven months concurrent on each count (218 days pre-sentence custody) & three years’ probation, plus s. 110 weapons prohibition for 10 years.

[146] In February 2018, Mr. Ellis was living with Jamaal at 80 Orenda Court in Brampton, which he described as a housing complex consisting of three or four buildings in a half circle, with a children’s playground in the middle. He recalled that each building is 10 or 12 stories high. He shared an apartment with Jamaal, whom he described as being six feet four inches or six feet five inches tall and having the same complexion as himself. Mr. Ellis testified that he could not say for sure whether Jamaal is seen in the surveillance footage of the robberies on February 3 and 9, 2018. He denied, however, that he himself is in either of the recordings.

[147] Raymond Ellis and Jamaal no longer live together.

[148] Mr. Ellis testified that he bought a Samsung Galaxy phone with the 2790 number at a stall in a flea market on Steeles Avenue in Brampton and used it for a year to a year and a half. He did not recall exactly when he bought it, but testified that he replaced it in November 2017, which would mean that he purchased the 2790 phone sometime between the spring and fall of 2016. He paid cash for the phone, which was the only mode of payment accepted at the flea market. The phone came with a subscriber identification module or SIM card. He bought the phone because he wanted to upgrade from the Nokia phone he had been using.

[149] Mr. Ellis described the payment plan for 2790 as “pay as you go.” He bought a prepaid card at a convenience store and would then “top it up.” He had no knowledge of the history of the phone. He did not know a Roy Anderson, in whose name the phone had been registered, with an activation date of January 25, 2016, and an end date of May 26, 2018.

[150] Mr. Ellis testified that the phone worked well for the first few months but then developed “reception problems,” which he attributed, in part, to the fact that he was living in a basement apartment. His messages were “not going through” and he experienced a lot of dropped calls. In or around November 2017, he went back to the flea market and bought an iPhone 6, with the number (437) 998-3505 (“3505”). He kept that phone for about one and a half years before replacing it with another phone with a different number.

[151] Mr. Ellis testified that he has had several different telephone numbers over the course of his adult life but denied using multiple phones during the same period of time. He denied that he kept and used the 2790 number well into February 2018.

[152] Mr. Ellis testified that after purchasing the iPhone, he kept the 2790 phone in his room for a while. Around the end of 2017, he gave it to Jamaal after Jamaal lost his own phone. Although there were some issues with the phone, it was better than having no phone at all.

[153] Mr. Ellis testified that he never saw the 2790 phone after he gave it to Jamaal. He did not know how long Jamaal kept it. He was aware, however, that Jamal bought a new phone when he started working, which was sometime around the end of 2017 or beginning of 2018.

[154] Mr. Ellis acknowledged that he signed the tenancy agreement with Capreit on April 27, 2017, for Unit B4 at 80 Orenda Court, and that the contact number he gave to Capreit at that time was the 2790 number. He never advised Capreit of his new iPhone number, which he acquired in November 2017, claiming that “[it] just slipped my mind.”

[155] Although Mr. Ellis acknowledged signing the lease, his testimony in terms of identifying his initials and signature on that document was problematic. When shown the initials on each page, he stated, “I would say those are not my initials.” When shown the signature on page 10, he testified that it looked like his signature but that it also looked “like a scribble.” He noted that his signature is clear and legible.

[156] Mr. Ellis agreed that the phone records show that 2790 was in service until May 26, 2018, and that a number of calls made to and from it in February 2018 were picked up by a tower at 80 Orenda Court, where he lived. He agreed that the phone records show that Jevanny Walters also lived at 80 Orenda Court but denied knowing Jevanny or ever seeing him in the area.

[157] In cross-examination, Mr. Ellis was questioned about specific calls between Jevanny Walters’s phone and 2790, and calls between Collin Walters’s phone and 2790 on February 3, 4, 9 and 10. His position with respect to all of those calls was that he knew nothing about them as he no longer had the 2790 phone in February 2018, and he did not know either Jevanny or Collin Walters. He denied the suggestion that he still had the phone at that time and that he only got rid of it after learning that Jevanny and Collin Walters had been arrested for the robberies.

Testimony of Jamaal Ellis

[158] Jamaal Ellis, age 25, is currently employed as a forklift operator and works the 11:00 p.m. to 7:00 a.m. shift. His criminal record consists of a conviction on April 6, 2018, for possession of property obtained by crime, for which he received a 120-day conditional sentence.

[159] Jamaal testified that Mr. Ellis gave him the 2790 phone at the end of 2017 after Jamaal lost his own phone at a party. The phone had a SIM card and was working but there were some problems with it – there were dropped calls, sometimes text messages would not go through, and sometimes the reception was poor.

[160] Jamaal testified that he bought a new phone in early January 2018 and sold the 2790 phone to an acquaintance, Jermaine, who lived in the same building at 80 Orenda Court.

[161] When asked how he came to sell the phone, Jamaal explained that he used to take his nieces and nephew to a park that is part of the complex at 80 Orenda Court, where he sometimes saw Jermaine. One day, Jermaine told him that he had a “situation” with his girlfriend, who had thrown his phone from the balcony, and that he needed to replace it. Jamaal ended up selling the 2790 phone to him. Jamaal did not know Jermaine’s last name, but he believed he lived on the seventh floor in Unit 709. Jamaal described Jermaine as Black and about six feet six inches tall.

[162] Jamaal moved out of the apartment that he shared with Mr. Ellis on June 20, 2018, following the execution of a search warrant that day by the police in connection with the gaming house robberies. Jamaal saw Mr. Ellis’s name on the warrant. Mr. Ellis, who was not home at the time, was not arrested on these charges until June 28, 2018.

[163] While at the apartment on June 20, 2018, Detective Constable Conant asked Jamaal to unlock his cell phone. Officer Conant then photographed the screen of Jamaal’s phone showing Jamaal’s contact numbers for Raymond Ellis. There were three numbers listed: the 2790 number; the 3505 number; and (416) 357-0407.

[164] When asked how those numbers ended up on his phone, Jamaal testified that when he got his new phone in January 2019, Gmail automatically uploaded all his pictures and contact numbers from his old phone. He never deleted 2790 as a contact number for Mr. Ellis after he started using the phone himself or after he sold it. He denied the suggestion that Mr. Ellis was actually using all three numbers at the same time.

[165] Jamaal moved out of the apartment on June 20, 2018. He did not speak to Mr. Ellis until sometime in July 2018, when Mr. Ellis got out of jail. Other than on that one occasion, Jamaal has not spoken to Mr. Ellis at all. When asked why not, he stated, “I don’t want to speak to him.” He added that he did not want to speak to anyone after the execution of the warrant, during which he alleges that he was assaulted by the police. He added, “My name is not Raymond. My name is Jamaal.” He testified that he only attended court at this trial because he was subpoenaed as a witness. He denied coming to court to “cover up” for his brother.

[166] Jamaal testified that he did not know Jevanny or Collin Walters and did not commit a robbery with them.

[167] Jamaal testified that he is six feet three inches tall. A photograph of Jamaal was filed as an exhibit: Exhibit 17.

Conclusions on Evidence as regards Counts 1, 2, and 4

The robber who brandished the gun on February 3, 2018 was the same person who brandished the gun on February 9, 2018

[168] There is no question that the robber who brandished the gun on February 3, 2018, was the same robber who brandished the gun during the robbery on February 9, 2018. Although the gunman’s facial features are not clear in either the February 3 or 9 surveillance footage, the portion of his face that is visible on both occasions is consistent with that individual being one and the same person. The height and build appear to be the same. The gunman appears to be taller than the average male and has dark skin. In addition, the gunman wore the exact same clothing during both robberies, including the same black vest with diagonal stitching. I also note that the gunman, during both robberies, behaved in a similar way, in that he threw a roll of duct tape to the robber who had entered the gaming house first. That robber then proceeded to use the duct tape to bind the hands of patrons after they had been ordered to get down on the floor.

The gunman on February 3 and 9, 2018 was using the 2790 cell phone number

[169] There is also no question that the gunman on February 3 and 9 was using the 2790 cell phone number.

[170] As reviewed earlier, the cell phone records indicate that on February 3, Jevanny Walters and the user of 2790 travelled from the area of 80 Orenda Court to the vicinity of the robbery and then back again. In addition, Jevanny Walters called the 2790 number from inside the gaming house. Twelve seconds after that call ended, the gunman entered, and the robbery commenced.

[171] On February 9, there were numerous calls between the user of 2790 and Collin Walters. Between 17:51:38 and 20:27:43, the 2790 number bounced off a tower at 80 Orenda Court. At 20:13:15 and 20:17:39, Jevanny Walters’ cell phone also bounced off the same tower location.

[172] At 20:32:31, 20:43:52, and 20:44:41, the user of 2790 called Collin Walters. The records indicate that Collin Walters remained within the general vicinity of 2100 Bovaird Drive East during that period. The records also indicate that the user of 2790 left the area of 80 Orenda Court and was on the move, with the three calls bouncing off towers in the vicinity of Highway 410 and William Parkway, 2250 Bovaird Drive East, and 2100 Bovaird Drive East, respectively. As stated earlier in these reasons, the cell phone records provide clear and compelling evidence that Collin Walters met up with the user of 2790 in the company of Jevanny Walters. Signals from both Jevanny Walters’s and Collin Walters’s phones bounced off a tower at 3400 Weston Road during their calls at 21:30:29, 21:32:50, and 22:01:27. At 22:09:08, or one and a half seconds after the last call between Collin and Jevanny Walters ended, Jevanny Walters and the gunman entered the gaming house and the robbery commenced.

Was Raymond Ellis using the 2790 number in February 2018 and, in particular, on February 3 and 9, 2018

[173] Mr. Bloch, on behalf of the Crown, submits that there can be no doubt that Mr. Ellis was the user of the 2790 cell phone number on both February 3 and 9, 2018. He relies on the following circumstances with respect to that number:

1. Mr. Ellis acknowledged that he had used the 2790 number in the past.
2. Mr. Ellis provided the 2790 number to Capreit as a contact number when he rented the apartment at 80 Orenda Court in May 2017, and never advised Capreit of a change of number.
3. In June 2018, Jamaal had the 2790 number listed in his phone as one of the contact numbers for Mr. Ellis.
4. The Freedom Mobile records show no change in customer between 2016 and May 2018.
5. The Freedom Mobile records show that the 2790 number bounced off a tower at 80 Orenda Court a number of times on the dates for which records were provided, that is, for February 3, 4, 9, and 10, which suggests that the user of 2790 was living at that address. Mr. Ellis lived at 80 Orenda Court.

[174] Mr. Bloch submits that neither Mr. Ellis nor Jamaal were credible witnesses and that their evidence with respect to cell phone 2790 should be rejected.

[175] Mr. Bloch referred to Mr. Ellis’s and Jamaal’s respective criminal records, which is a relevant factor in assessing the truthfulness of their testimony. He submits that Jamaal provided a convenient but false narrative with respect to the phone. Mr. Ellis’s blanket denial of any association with 2790 in February 2018 is not credible, particularly in light of his problematic testimony regarding his initials and signature on the tenancy agreement between himself and Capreit in April 2017.

[176] In summary, Mr. Bloch submits that the cumulative effect of the surveillance footage, the cell phone records, and the similar act evidence is such that the Crown has established beyond a reasonable doubt that Mr. Ellis was the robber who brandished a gun during both robberies.

[177] Mr. Rados, on behalf of Mr. Ellis, noted various deficiencies in the surveillance footage with respect the images of the gunman, who was wearing a disguise on both February 3 and 9.

[178] Mr. Rados submits that Mr. Ellis’s evidence as to how and when he acquired the cell phone with the number 2790, and when he gave it to Jamaal, was credible and had the ring of truth. Jamaal’s testimony as to when and to whom he sold the phone was also credible. Their evidence is consistent with the fact that there is a known resale market for cell phones, which are in high demand.

[179] Mr. Rados submits that the fact that Mr. Ellis failed to provide Capreit with an updated contact number is of little moment. Nor is it of any significance that Jamaal failed to delete 2790 as a contact number for Mr. Ellis, given Jamaal’s explanation with respect to the automated synchronization of contact numbers when he obtained his new phone.

[180] Mr. Rados submits that Jamaal’s testimony that he sold the phone with the number 2790 to someone who lived at 80 Orenda Court explains why the calls made to and from 2790 bounced off the tower at that address on February 3, 4, 9 and 10. The cell tower at 80 Orenda Court would also have picked up signals from calls made outside that apartment complex and within a certain radius.

[181] Mr. Rados submits that, at the very least, the evidence of Mr. Ellis and Jamaal raises a reasonable doubt that Mr. Ellis was the gunman in the robberies.

The Surveillance Footage from Both Robberies

[182] The gunman, as seen in the surveillance stills from both robberies (see exhibit 9, at pp.2-8 and 15-17), clearly made an effort to disguise himself. The gunman’s head was mostly covered during both robberies. The hood over his head was pulled tightly toward the front of his face, making it impossible to make out his eyes, ears, forehead, or jawline. Both cheeks were substantially covered. There is no way to determine if he had a narrow or a round face. There is no clear profile of either his face or his head. Nor are there any distinguishing facial features that are visible. The gunman’s nose can be seen, but it is difficult to ascertain if there is anything distinctive about it, given the light reflecting off his nose, which makes the image somewhat blurry.

[183] It appears that the gunman had a moustache. It is not possible from the footage, however, to determine if it is similar to the hair growth above Mr. Ellis’s upper lip, as seen in his police photograph. As a result of shadows in the surveillance footage, it is not clear if the gunman had stubble or a beard. Mr. Ellis had a goatee at the time of his arrest.

[184] The gunman appears to be relatively taller than the average male, although it is not clear by how much. He had dark skin and what appears to be an “average” nose. As counsel for Mr. Ellis observed, any number of people would fit this generic description. While the gunman’s appearance is consistent with that of Mr. Ellis, it is also consistent with Jamaal’s appearance and anyone within a very broad grouping of people.

Freedom Mobile Records for 2790 and Capreit’s Records re Lease and Contact Number for Mr. Ellis

[185] The records relating to 2790 are in the subscriber name of Roy Anderson, who presumably created the account in order to activate the phone. The activation date was January 25, 2016, which was two years prior to the robberies. The termination date was May 26, 2018.

[186] The account was pre-paid. Value could be added to it by simply purchasing a prepaid phone card at a convenience store and, as Mr. Ellis put it, “topping it up.” As a result, the phone could be easily transferred from one person to another and was amenable to resale. A person could sell the phone while leaving intact the account with Freedom Mobile and the 2790 number. It was not necessary for a user of the phone to use it in their own name. Hence, the Freedom Mobile records do not reflect any changes in the subscriber for the account relating to 2790. The name of the original subscriber, Roy Anderson, is the only name that appears in the Customer Name and Subscriber Report.

[187] The phone could presumably be purchased through any number of venues, such as Craigslist, Kijiji, pawn shops, or a flea market, where Mr. Ellis testified that he bought it. It could also be transferred from person to person in a private transaction, which is how Jamaal testified that he sold it in January 2018. None of these kinds of transactions would be reflected in the Freedom Mobile records. Their absence, however, does not mean that they did not occur.

[188] Mr. Ellis testified that he had the phone for a year to a year and a half before he replaced it with an iPhone in November 2017, which means that he may have purchased the 2790 phone as early as the spring of 2016 or as late as the fall of 2016. He was clearly in possession of it on April 27, 2017, when he signed the tenancy agreement with Capreit, as he used 2790 as his contact number. Crown counsel asks the court to infer that Mr. Ellis was still in possession of the 2790 phone at the time of the robberies in February 2018. The Crown relies, in part, on the fact that Mr. Ellis never notified Capreit of a change of number.

[189] Mr. Ellis testified that it just “slipped his mind” to advise Capreit of his new number after he upgraded to the iPhone with the number (437) 998-3505. He had the iPhone for about a year and a half before he replaced it with another phone, which had the number (416) 357-0407. The latter number was the third or last contact number for Mr. Ellis listed in Jamaal’s phone on June 20, 2018. Jamaal’s evidence and the entries in his phone support Mr. Ellis’s testimony that he purchased two phones after his purchase of the 2790 phone.

[190] Mr. Ellis’s explanation as to why he failed to advise Capreit of his new phone number – that he simply forgot to update his contact number – is not farfetched and could reasonably be true. I note that there was no evidence of any problem arising with respect to his apartment during his tenancy, such as a flood, plumbing problem, or other issue that would have caused him to communicate with the landlord and prompted him to update his contact information.

[191] Mr. Ellis’s evidence with respect to his signature and initials on the tenancy agreement was problematic. He agreed that he was the tenant named in the lease, that he signed the lease (although he did not specifically recall signing it), and that he gave Capreit the contact number 2790, which he acknowledged he was using at that time. However, in cross-examination, Mr. Ellis took issue with the initials “RE” that appear on each page of the agreement. He also testified that although the signature on the agreement looks like his signature, it also looks “like a scribble,” whereas his signature is very legible.

[192] It is not clear why Mr. Ellis took issue with his initials – and to some extent his signature – on the lease when he freely acknowledged that he was the named tenant at 80 Orenda Court, that he lived there from May 1, 2017 until November 30, 2018, that when he signed the lease, he was using the 2790 number, and that he provided 2790 to Capreit as his contact number. As Mr. Rados stated, Mr. Ellis’s reluctance to acknowledge his initials appears not to have had any purpose and there is no apparent mischief behind it. I take Mr. Ellis’s evidence regarding his signature and initials into account in assessing his credibility, but given his admissions regarding his tenancy and his having provided Capreit with the number 2790, I do not attach a great deal of significance to it. Other than this one area of his evidence, Mr. Ellis testified in a direct and forthright manner.

[193] Mr. Ellis lived at 80 Orenda Court. The cell phone records show that the user of 2790 was in the area of 80 Orenda Court both before and after the robberies on February 3 and 9. The records also show that the user of 2790 was in the area of that address on February 4 and 10. The inference may be drawn that the user of 2790 lived at or in the vicinity of 80 Orenda Court, although that inference is somewhat weakened by the fact that the records cover only four days of usage. In any event, assuming that the gunman lived at or in the vicinity of 80 Orenda Court, that address encompasses a multi-story apartment complex consisting of three or four buildings. Calls made from homes and apartment buildings within a certain radius, perhaps as much as one kilometre, would also have bounced off the cell tower at 80 Orenda Court. Thus, the potential pool of users of 2790 – that is, tall dark-skinned males – could be quite substantial.

[194] During his testimony, Mr. Ellis provided the location of a number of the job sites where he was working in the early part of 2018. These included the Pearson International Airport, his employer’s prefab site in Mississauga, and the emerging Eglinton Crosstown LRT. If Mr. Ellis was using the 2790 phone, one might expect that the cell phone records would include cell towers in or near those locations. Yet none of the tower locations in the records for February 3, 4, 9, or 10, were shown to correspond with Mr. Ellis’s work sites.

[195] Mr. Ellis testified that he kept the 2790 phone for a while after he purchased the iPhone in November 2017. However, he eventually gave the 2790 phone to Jamaal around the end of 2017. Mr. Ellis’s evidence in this regard was supported by Jamaal’s testimony.

[196] Jamaal testified that Mr. Ellis gave him the 2790 phone at the end of 2017, after Jamaal lost his own phone at a party. Jamaal kept the 2790 phone until early January 2018, when he bought a new phone. He then sold the 2790 phone to another tenant in the same apartment building. Jamaal provided some detail with respect to the purchaser: his first name was Jermaine; he was Black; he was about 6 feet 6 inches tall; and he lived on the seventh floor in Unit 709.

[197] Crown counsel submits that Jamaal’s failure to come forward earlier and advise the police of potentially exculpatory evidence with respect to his brother’s case reflects adversely on his credibility. Jamal was not specifically asked why he failed to come forward with this information at an earlier date. However, there are a number of reasons why he may not have contacted the police. For example, he may not have appreciated the significance of the 2790 number at the time. He has had virtually no contact with Mr. Ellis since Mr. Ellis’s arrest. Jamaal moved out of the apartment on June 20, 2018, which was the same day that the search warrant was executed. He has not lived with Mr. Ellis since that date. He testified that he spoke to Mr. Ellis on one occasion in July 2018, after Mr. Ellis got out of jail, but has not spoken to him since then. When asked why he had not spoken to his brother, Jamaal stated, “I don’t want to speak to him.” It is apparent that there is no love lost between the brothers. When it was suggested to Jamaal that he came to court to “cover up” for Mr. Ellis, Jamaal stated quite forcefully that he came to court because he was subpoenaed.

[198] Even if Jamaal had realized the significance of the phone number, he may have been reluctant to contact the police out of concern that he was putting himself in jeopardy since, on his own evidence, he was in possession of the 2790 number as late as January 2018, which was just prior to the commission of the robberies. Jamaal may not have trusted the police, given his allegation of assault by the officers who executed the warrant. It is not for this court to determine if that allegation is true. The fact that Jamaal made the allegation, however, indicates a certain level of tension or discord that he felt between himself and the police. Jamaal may also have been reluctant to contact the police regarding the 2790 number because he would essentially be laying the blame on someone in the community who may or may not have been involved in the offences.

[199] In all of the circumstances, I do not find Jamaal’s failure to come forward earlier to provide information to the police about the 2790 number reflects adversely on his credibility.

[200] Jamaal was questioned as to why, on June 20, 2018, his phone contained 2790 as a contact number for Mr. Ellis. Jamaal explained that when he got his new phone in January 2018, Gmail automatically uploaded all his pictures and contact numbers from his old phone. Jamaal was never specifically asked whether he ever reviewed the automatically uploaded numbers with a view to deleting numbers that were no longer current. However, when cross-examined as to his failure to delete 2790 as a contact number for Mr. Ellis, Jamaal repeated that he did not delete it “because when I synched my phone when I got my new phone, I just synched all my contacts and pictures.” I gather from this answer that Jamaal did not bother to review or delete any outdated numbers that may have been uploaded, which could explain why 2790 remained in his phone as a contact for Mr. Ellis.

[201] Crown counsel submits that Jamaal came to court to “cover up” for Mr. Ellis. However, as already noted, it became apparent during Jamaal’s testimony that the relationship between the two brothers is strained. Jamaal no longer speaks to Mr. Ellis. Jamaal’s animus toward Mr. Ellis raises the question as to whether he would be willing to perjure himself in order to help him out. It is apparent that Jamaal is not particularly disposed to do the accused any favours.

[202] When the Crown’s case depends on circumstantial evidence, the Crown must demonstrate that an inference of guilt is the only reasonable inference available on the totality of the evidence: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 55. It is also important to remember that the evidence must be evaluated as a whole, rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden: R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 59.

[203] In the present case, the Crown relies on the surveillance footage, the cell phone records, and the similar act evidence.

[204] As reviewed earlier, observations of the gunman’s appearance as seen in the surveillance footage from both robberies are hampered by the fact that he wore a disguise. Nevertheless, it is apparent that he was a taller than average male with dark skin and an average-sized nose. These generic traits are consistent with the appearance of Mr. Ellis, Jamaal, and anyone within a broad grouping of people.

[205] The gunman may have lived at or within a certain radius of 80 Orenda Court, judging by the number of calls from or to 2790 that were picked up by the cell tower at that address over the course of four days. Mr. Ellis lived at 80 Orenda Court.

[206] The gunman used the 2790 cellphone number on February 3 and 9, 2018. Mr. Ellis used 2790 but not, according to his testimony, after November 2017.

[207] In support of his position that Mr. Ellis was using 2790 at the time of the robberies, Crown counsel relies on the fact that Mr. Ellis provided that number to Capreit in April 2017 and never notified Capreit of a change in number. I have found that Mr. Ellis’s explanation that he simply forgot to update Capreit with his new phone number, 3505, could reasonably be true. It is not a farfetched explanation.

[208] Crown counsel also relies on the fact that on June 20, 2018, Jamaal’s phone included 2790 as a contact number for Mr. Ellis. In my view, Jamaal’s explanation with respect to the automated upload of previous numbers from his old phone onto his new phone goes some way in explaining how 2790 could have ended up in his new phone as a contact number for Mr. Ellis.

[209] Crown counsel submits that Mr. Ellis’s evidence that he gave the 2790 phone to Jamaal in late 2017, and Jamaal’s evidence that he received the phone at that time but sold it in January 2018 to a fellow tenant at 80 Orenda Court should be rejected. Crown counsel referred to Jamaal’s testimony as a convenient but false narrative.

[210] In assessing Mr. Ellis’s credibility on this matter, I have taken into account his criminal record, which includes, among other entries, a conviction in 2010 for failing to comply with a recognizance. I have also taken into account Mr. Ellis’s somewhat problematic evidence regarding his initials and signature on the tenancy agreement. However, as explained earlier, I do not attach a great deal of significance to that part of his evidence, given his admission that he was the named tenant of the apartment and that he provided Capreit with 2790 as his contact number in April 2017. Other than this one area of his evidence, Mr. Ellis answered the questions posed to him in a direct and straightforward manner.

[211] Jamaal also gave his evidence in a straightforward manner. There was nothing in his demeanour that would suggest that he was being untruthful. In assessing Jamaal’s credibility, I take into account his criminal conviction for possession of property obtained by crime.

[212] For the reasons already stated, I do not find Jamaal’s failure to come forward and to provide the police with information about the 2790 phone to reflect adversely on his credibility.

[213] Although Crown counsel suggested that Jamaal came to court to “cover up” for Mr. Ellis, there is some question as to whether Jamaal would be willing to make up a story to help Mr. Ellis, with whom he has not spoken since July 2018.

[214] I have considered and assessed the evidence of Mr. Ellis and Jamaal in the context of all of the evidence, including the surveillance footage, cell phone records, and similar act evidence. I find that the evidence of Mr. Ellis and Jamaal that Mr. Ellis gave the 2790 phone to Jamaal in late 2017, and Jamaal’s evidence that he sold it to a fellow tenant in January 2018, could reasonably be true. There is, at the very least, a reasonable doubt that the phone was in Mr. Ellis’s hands on February 3 and 9. That being the case, there is a reasonable doubt that Mr. Ellis was the gunman in those robberies.

Conclusion on Counts 1, 2, and 4 with respect to the Accused Raymond Ellis

[215] After considering all of the evidence and submissions of counsel, I find that the Crown has failed to establish beyond a reasonable doubt that Mr. Ellis committed the robberies of the gaming house on February 3 and 9. Mr. Ellis is accordingly found not guilty on Counts 1, 2, and 4.

Dispositions

[216] For the reasons given, Jevanny Walters is found guilty on Counts 1, 2, and 4 in the indictment. Collin Walters is found guilty on Count 4. Mr. Ellis is found not guilty on Counts 1, 2, and 4.

[217] All three accused are found not guilty on Count 3.

Garton J.

Released: July 3, 2020