Court File and Parties
COURT FILE NO.: CrimJ(P)1534/19 DATE: 2020 07 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen A. Fedak-Tarnopolsky, for the Crown
- and -
Jerome Lemon-Allison R. Wellington, for the Defense
REASONS FOR JUDGMENT
Bloom, J.
I. THEORY OF THE CROWN
[1] The accused is charged that he, on or about the 20th day of November 2017, at the City of Mississauga, in the Central West Region, did rob the Scotiabank located at 660 Eglinton Avenue West, contrary to section 344(1)(b) of the Criminal Code of Canada.
[2] The Crown alleges that the Accused, Anthony Dass, and another male with their faces covered robbed a branch of Scotiabank located at 660 Eglinton Avenue West in Mississauga on November 20 of 2017 at approximately 3:57 pm.; that they fled in a black Honda Civic registered to the mother of the Accused; and that they drove in about ten minutes in that car to 3888 Duke of York Boulevard, Mississauga, where they took the elevator to unit 2725.
[3] Further, alleges the Crown, they took to that location from the bank Canadian and U.S. currency.
[4] The Crown also alleges that the Accused made inculpatory statements to police undercover officers in a police cell on January 29, 2018.
II. AGREED FACTS
[5] The parties filed an agreed statement of facts. I will now set out the material portions of those facts.
[6] On November 20, 2017 at approximately 3:57 p.m., three males wearing dark clothing and with their faces masked entered a branch of Scotiabank located at 660 Eglinton Avenue West in Mississauga; and stole $144,319.17 in Canadian dollars and $10,000.00 in U.S. dollars.
[7] One of the teller’s described one of the robbers as wearing an “army green” or camouflage coloured mask.
[8] The three men fled.
[9] Surveillance shows that on November 20, 2017 at approximately 4:08 pm a four door Honda Civic, dark in colour, entered the underground parking garage of 3888 Duke of York Boulevard, Mississauga; that at 4:11 pm four males entered an elevator through the parking garage; and that one of them was Anthony Dass. Mr. Dass had a shaven head.
[10] Mr. Dass called for delivery of a pizza after 1:00 am on November 21, 2017. The delivery was to be to unit 2725 at 3888 Duke of York Boulevard. Mr. Dass at approximately 1:59 am went to the lobby to pick up the pizza and was arrested.
[11] A Samsung cellphone was taken from him during his arrest.
[12] Police located Snapchat videos in the phone of Mr. Dass. These videos were date stamped November 20, 2017, and showed him and other persons holding stacks of currency with Scotiabank tags on them. Further, from still shots taken from those videos an employee of the branch of Scotiabank robbed was able to identify his signature on the stacks of cash.
[13] On November 21, 2017 at approximately 2:36 am the Accused was located inside unit 2725 of 3888 Duke of York Boulevard.
[14] He was then interviewed by police on November 21, 2017. He was wearing the clothing in which he was arrested, except that he was wearing shoes provided by the authorities.
[15] A search warrant was executed at unit 2725 of 3888 Duke of York Boulevard. On the kitchen counter were found an identification document with Mr. Dass’s photograph and an identification document for the Accused. A black balaclava was located inside the washing machine in the laundry room.
[16] Canadian currency totalling $48,370.00 Canadian and American currency totalling $3202.00 U.S. was seized from various locations in the bedrooms of the unit.
[17] On November 23, 2017 the police located a black, four door, 2002 Honda Civic with VIN number 2HGES16872H921375 in the parking garage at 3888 Duke of York Blvd. This vehicle was registered to the Accused’s mother, Sharon Lemon.
[18] Police located an army green, camouflage-coloured balaclava in the car. Scientific analysis demonstrated that the probability that the DNA profile on the mask belonged to anyone other than Mr. Dass was 1 in 89 quadrillion.
III. EVIDENCE
[19] I will now summarize the evidence.
A. Officer Beata Turczak
[20] Officer Beata Turczak of the Peel Regional Police introduced into evidence Snapchat videos taken from the cellphone seized from Anthony Dass.
[21] One such video was created November 20, 2017 at 5:21 pm and shows a male admitted by the parties to be Anthony Dass.
[22] Another such video created November 20, 2017 at 5:11 pm shows a male admitted by the parties to be Anthony Dass.
[23] A third video created November 20, 2017 at 4:54 pm shows a man alleged by the Crown to be the accused. Exhibit 7 contains a screen shot and a zoomed in screen shot of a portion of the video showing that man.
B. Officer Raymond Jackson
[24] Officer Raymond Jackson of the Peel Regional Police introduced building video surveillance from 3888 Duke of York Boulevard in Mississauga.
[25] I now will describe what that video footage showed, including screen shots or still photos taken from it.
[26] On November 20, 2017 at approximately 4:08 pm a dark-coloured Honda sedan bearing license plate number AVSE867 entered the underground garage at 3888 Duke of York Boulevard.
[27] At approximately 4:10 pm three persons in dark clothing, one with light shoes and carrying a bag, waited at the entrance to the elevator bank of the building proper from the underground garage. They entered the building proper as did a fourth person in dark clothing who came into the picture from the left.
[28] At approximately 4:11 pm four males, including Anthony Dass, entered elevator number 5. They exited the elevator on the 27th floor at approximately 4:12 pm.
[29] One of the four males had a full backpack, which was grey in colour.
[30] One still photo shows Anthony Dass, and to his right a man alleged to be the accused.
[31] Officer Jackson testified that there were likely multiple means of access by stairs to the underground garage and also likely bicycle access to it.
[32] Officer Jackson also stated in evidence that a four door 2002 Honda was registered as of November 20, 2017 to a Sharon A. Lemon according to a search of Ontario Ministry of Transportation records. Officer Jackson further testified that he arrested the accused at her home on January 29, 2018.
[33] Sometime on that day between 11:00 am and 12:02 pm the accused was placed into the cells for the first time and undercover officers interacted with him.
[34] Officer Jackson and another officer interviewed the accused commencing at 4:00 pm.
[35] The accused went back to the cells shortly after 6:23 pm when the interview had ended.
[36] During the interview on January 29, 2018 Officer Jackson showed the accused several photos and screen shots snipped from a video clip. Among them was the first page of exhibit 7, the screen shot which was taken from a Snapchat video from Anthony Dass’s cellphone and which the Crown alleged showed the accused.
[37] Officer Jackson testified that a Google Maps calculation of the distance between the bank robbed and 3888 Duke of York Boulevard taken on December 11, 2017 was 4 kilometres and 9 minutes; and that another taken in early 2019 was 3.3 kilometres and 8 minutes. He also conceded that factors such as a road closure would affect the time taken on any given occasion.
C. Officer Connor Forsyth
[38] Officer Connor Forsyth of the Peel Regional Police testified that on November 23, 2017 he attended at the parking garage of 3888 Duke of York Boulevard; and at parking spot 144 saw a black, four-door, Honda Civic bearing license plate AVSE867. I note that this was the same automobile earlier in my reasons described as registered to Sharon A. Lemon.
D. Officer David Matta
[39] Officer Matta of the Peel Regional Police testified that on November 21, 2017 he arrested Anthony Dass in the foyer of 3888 Duke of York Boulevard at 1:59 am.
[40] According to the officer’s testimony he then went to unit 2725 in the building. In the stairwell near the unit he encountered the accused who was in custody.
[41] The Officer also gave evidence that he took photographs while executing a search warrant in the unit.
[42] During his testimony, the officer viewed video evidence earlier tendered in evidence by Officer Turczak, which was created on November 20, 2017 at 4:54 pm and was alleged by the Crown to show the accused. Officer Matta testified that he was able to identify the premises where the video was taken as unit 2725 of 3888 Duke of York Boulevard by reference to the flooring, black couch, and picture above the couch he saw on the video. These items matched his recollection of the premises and photographs he took of it.
E. Video and Still Evidence Tendered by the Crown
(i) Bank Surveillance
[43] The Crown tendered bank video surveillance of the robbery.
[44] That evidence showed several individuals with their faces covered and dressed in dark clothing who enter the bank, appear to rob it, and then exit the bank.
(ii) Interview of the Accused on November 21, 2017
[45] The Crown tendered video evidence, and still evidence drawn from the video, of the accused at his interview by the police on November 21, 2017.
F. Officer Ryan Chan
[46] I will now summarize the testimony of Officer Ryan Chan. On January 29, 2018 Officer Ryan Chan, a member of the Peel Regional Police, worked in an undercover capacity on the matter.
[47] He interacted with the accused in the cells during two time periods that day. He made no audio or video recording of his interactions.
[48] During the first period Officer Faria, also acting in an undercover capacity, entered the cells. In the presence of the accused the two officers, pretending to be associates in illegal activity, discussed a criminal scheme involving credit cards. They also had conversation in the presence of the accused with a third undercover officer, Officer Stewart, who was pretending to have been separately arrested. They discussed with him the money-laundering services they could provide.
[49] During the second period the accused requested Chan’s services. He asked for the changing of serial numbers on money by substituting different bills. He mentioned the amount of approximately $20,000, specifically that he had about $20,000 in assorted denominations in respect of which the serial numbers needed to be changed. The accused had been present when Chan and Faria had offered to Stewart to provide to him the service of replacing bills with others bearing different serial numbers.
[50] During the second period the accused stated that police officers had during his absence from the cells showed him a bunch of pictures, but that these pictures did not prove anything.
[51] The officer did not remember the exact words the accused had used in asking for his money laundering services regarding the changing of the serial numbers of the bills. That conversation was short.
[52] Officer Chan gave the accused a telephone number to contact him. The officer knew of no one subsequently calling or texting that number.
G. Officer David Faria
[53] I will now summarize the testimony of Officer David Faria.
[54] Officer David Faria, a member of the Peel Regional Police, participated in an undercover capacity in the investigation of the accused on January 29, 2018.
[55] He entered the cells at 1:20 pm; he was there with Officers Chan and Stewart, who were also acting in an undercover capacity; the accused was also present.
[56] In the presence of the accused Faria and Chan discussed several money laundering techniques that Stewart could use. The three were posing as persons who had been arrested for criminal activity.
[57] The three officers were brought out of the cells at 4:05 pm. Prior to that time the accused had been taken out of the cells to speak to investigators. The three officers were returned to the cells. The accused was then returned to the cells.
[58] He had a worried look on his face. One officer asked if he was good. He said, “Just some fucked up shit.” In his presence, Officer Stewart said to Chan and Faria that he had their number and would call them to do business.
[59] The accused stated to Chan and Faria that he needed their number, because he would use their services 140% to change the serial numbers on about $20,000, that is to change the cash to bills with different serial numbers.
[60] He used the word “cleaned” regarding their services in relation to the money. He did not explain why he needed the serial numbers changed. He did say that the police did not have the money—that it was safe.
[61] He said that the police had pictures; he used the expressions “deep” and “wads of cash.” He said that the police had pictures of him holding wads of cash. He said some deep shit.
[62] He said that he had five dollar bills, ten dollar bills, and twenty dollar bills.
[63] Faria did not wear a recording device or carry a recording device while in the cells with the accused. He testified that a recording device could have been placed on his person before he entered the cells.
[64] Concerning the issue of the pictures, Faria testified that the accused said that the police had pictures deep with him holding wads of cash, but he was not specific as to whether he had been shown such pictures.
[65] When Officer Stewart was leaving the cells, Officer Chan asked the cells officer for a pen and paper so that he could write down his and Faria’s telephone number to give to the accused who had asked for it.
[66] The accused never said that he had money from a bank robbery.
H. Office Leon Stewart
[67] I will now summarize the evidence of Officer Leon Stewart of the Peel Regional Police.
[68] He was involved in the matter in an undercover capacity on January 29, 2018.
[69] He went to the cells area at approximately 11:42 am. When he arrived, Officer Chan was there. Then the accused arrived; subsequently Officer Faria arrived.
[70] When Faria arrived, Faria and Chan, also operating in an undercover capacity, discussed the reasons for their purported arrest. Then Stewart discussed with them the money laundering services they could provide.
[71] The accused said that bank robberies had bad karma, and that a person’s head was on swivel in a bank robbery.
[72] The accused was taken from the cells. Then the witness left the cells for a debriefing.
[73] Then the witness returned to the cells. Chan and Faria were there. The accused returned thirty minutes later.
[74] The accused made eye contact with him. The witness asked him whether he was good.
[75] The accused responded that he was as good as he was going to be.
[76] Subsequently the witness asked the accused again if he was good.
[77] The accused responded that he was fucked or screwed; and that they had pictures of him. Stewart responded that that was serious shit.
[78] The accused said that they had him holding it like this, at which point he was holding his hand in a C shape, that is as if he were holding something thick. The accused said “the robbery they have me holding it like this”, gesturing with his hand in a C shape as if he were holding something thick.
[79] Stewart responded that that was some serious shit.
[80] In cross-examination about the conversation the witness admitted that the accused could have meant that the police told him that they had pictures of him holding something thick in his hand, rather than intending to convey that the police had such pictures in fact. However, in re-examination the witness clarified that the words used by the accused were the ones to which he had testified and which are set out above.
[81] Stewart further testified that the accused then said to Chan and Faria that he needed their services to change numbers. He indicated a sum of 20,000, although in cross-examination he said that he was not certain the accused said 20,000.
[82] Stewart testified that the accused never said that he had robbed a bank; never said that he had money from a bank robbery; but did say that he knew a guy who robbed a bank or something to that effect.
IV. GOVERNING PRINCIPLES
A. Use of Video Evidence by the Trier of Fact
[83] The Crown relies upon principles set out by Justice Cory for the majority in R. v. Nikolovski, [1996] 3 S.C.R. 1197 at paras. 28 to 32:
28 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.
29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.
30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.
31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion.
32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification.
[84] The Defense contends that these principles only apply if the video evidence in question depicts the crime scene. I accept the Crown’s contention that this restriction is inapplicable. Justice Code of this court in R. v. John, 2010 ONSC 6085 and R. v. Walker, [2013] O.J. No. 6632 reflects that the use of video evidence generally can be made in applying the Nikolovski principles.
[85] To the same effect is the recent decision of the Ontario Court of Appeal in R. v. Keating, 2020 ONCA 242 at paras. 23 and 24; there Justice Doherty for the Court stated:
[23] The appellant’s primary submission arises out of the trial judge’s reliance on his own observation of the Facebook photographs to conclude that they were photographs of the appellant. The appellant argues that R. v. Nikolovski, [1996] 3 S.C.R. 1197 limits a trier of fact’s ability to identify an accused as a person depicted in a photograph or video to situations in which the photograph or video is a depiction of the accused committing the crime or acting in close proximity to the commission of the crime.
[24] There is nothing in Nikolovski, the case law flowing from it, or logic which supports the limitation advanced by the appellant. In cases like Nikolovski, in which the photograph or video is relied on as the exclusive evidence to establish an accused’s guilt, it follows that the photograph or video must be sufficiently probative to carry the evidentiary burden on all essential elements of the offence. In practical terms, it must show the accused committing the offence.
[86] Further, in R. v. John, 2010 ONSC 6085, supra at paras. 10 to 16 Justice Code elaborates on the application of the Nikolovski principles:
10 The rule in Nikolovski, supra, allows the trier of fact to draw his/her own conclusions on the issue of identity by comparing the TTC video surveillance evidence, and the still photographs derived from it, with the appearance of the accused John in the court room. In addition, there is the police photograph of the accused John used in the two photo arrays in January, 2009. It was made an exhibit at trial and can be compared to the surveillance evidence.
11 The trial proceeded without a jury over a period of nine days. I observed John closely over this period and compared his appearance today, and in the more contemporaneous police photo, with the appearance of the man in the Blue Jays cap as shown in the stills and in the TTC surveillance video. There is evidence of one change in appearance, namely, John now wears glasses whereas a number of witnesses testified that he did not wear glasses at the relevant time. There was no cross-examination on this evidence concerning whether John wore glasses in January, 2009. The man in the Blue Jays cap is not wearing glasses and the defence never suggested that this is a relevant dissimilarity. I accept the Crown's evidence that the wearing of glasses by John is a recent change in his appearance and that he did not wear glasses in January, 2009.
12 Mr. Enright, counsel for the Crown, very fairly submitted that the rule in Nikolovski could not provide an independent basis for convicting in the case at bar. He conceded that the Blue Jays baseball cap worn by the perpetrator is pulled down such that his eyes and his forehead are always obscured. I agree with this submission. I reviewed each frame of the video carefully and the eyes, forehead and hair of the man in question are never visible. His nose, mouth, chin, jaw line and left ear are visible. He has a moustache above his upper lip and, possibly, some facial hair on his chin. Mr. Enright submitted that these features all disclose a "strong resemblance" to the accused John and that this evidence, when combined with other identification evidence, provides a proper basis to convict.
13 I agree with the Crown's concession that it would not be safe for the trier of fact to positively identify the accused John as the perpetrator, based on the rule in Nikolovski. There are simply not sufficient features visible for me to conclude, with confidence, that John is the man in the Blue Jays cap.
14 However, I also agree that the Crown's further submission is sound, namely, that there is a resemblance between John and the perpetrator. Once the eyeglasses worn by John today are set aside, there is no dissimilar feature. Furthermore, the nose, mouth, moustache and jaw line are all similar, as between the accused John and the man in the Blue Jays cap.
15 The law is clear that evidence of a "resemblance", established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification, in determining whether the Crown has proved its case. See: R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264 at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.). Furthermore, evidence of a "resemblance" can complete the Crown's proof of identity, depending on the strength of the other identification evidence. As Watt J.A. put it in R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58 at para. 121 (Ont. C.A.), giving the judgment of the Court:
• As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution's proof.
Also see: R. v. Boucher, 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.).
16 I am therefore satisfied, based on my own observations, that there is a resemblance between the accused John and the man in the Blue Jays cap, who is the perpetrator. That evidence is entitled to some weight in relation to the ultimate issue of identity.
[87] The case at bar also requires me to caution myself as to the risks of cross-racial identification. In R. v. Richards, [2004] O.J. No. 2096 (Ont. C.A.) the court flagged those risks.
B. The Doctrine of Recent Possession
[88] In R. v. Kowlyk, [1988] 2 S.C.R. 59 at para. 12, Justice McIntyre for the majority summarized the doctrine of recent possession relied upon by the Crown in the case at bar:
- In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may‑‑but not must‑‑draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.
[89] In R. v. Cuming, [2001] O.J. No. 3708 at para. 34 (Ont. C.A.) Justice Charron for the court also addressed the doctrine of recent possession:
34 The Crown in her closing address misapplied these principles when she sought to use the absence of an explanation to prove that the appellant was in joint possession of the watches. The appellant's silence does not give rise to any inference that he is in possession of the goods in question and the jury should have been instructed to disregard any suggestion to the contrary. As noted in Kowlyk, the doctrine of recent possession simply describes a permissible inference that may be drawn from certain facts. Before any inference may be drawn, however, those facts have to be proven. The trier of fact must be satisfied that (a) the person is in possession of the goods; (b) the goods were stolen; and (c) the theft was recent. In addition, if an explanation is provided, the jury must be satisfied that it could not reasonably be true before it may draw an inference that the person is the thief or that he knew the goods were stolen. A proper application of these principles does not give rise to any issue with respect to an offender's right to silence.
[90] Although I have had regard to the doctrine of recent possession, ultimately for reasons discussed below I did not use it in coming to my conclusion.
C. The Burden of Proof
[91] The Defense draws to the Court’s attention the principles articulated by Justice Cromwell in R. v. Villaroman, [2016] 1 S.C.R. 1000 at paras. 22 to 43 which must apply to the matter before me where the Crown’s case is entirely circumstantial:
However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. I will touch briefly on both of these aspects.
(i) An Explanation of the Difference Between Direct and Circumstantial Evidence
[23] An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. One example of how this distinction may be conveyed to a jury is found in s. 10.2 of the Model Jury Instructions (online) prepared by the National Committee on Jury Instructions of the Canadian Judicial Council:
[1] As I explained at the beginning of the trial, you may rely on direct evidence and on circumstantial evidence in reaching your verdict. Let me remind you what these terms mean.
[2] Usually, witnesses tell us what they personally saw or heard. For example, a witness might say that he or she saw it raining outside. That is called direct evidence.
[3] Sometimes, however, witnesses say things from which you are asked to draw certain inferences. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might infer that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.
[24] While there is no particular required form of explanation, something along these lines will usually be helpful when one or more elements of the Crown’s case depends solely or mainly on circumstantial evidence.
(ii) The Relationship Between Circumstantial Evidence and Proof Beyond Reasonable Doubt
[25] The Court has generally described the rule in Hodge’s Case as an elaboration of the reasonable doubt standard: Mitchell; John v. The Queen, [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 843. If that is all that Hodge’s Case was concerned with, then any special instruction relating to circumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction.
[26] However, that is not all that Hodge’s Case was concerned with. There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge’s Case. He noted the jury may “look for — and often slightly . . . distort the facts” to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may “take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole”: W. Wills, Wills’ Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813.
[27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described — the danger of jumping to unwarranted conclusions in circumstantial cases — remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes: see B. L. Berger, “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated” (2005), 84 Can. Bar Rev. 47, at pp. 60-61.
[28] The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.
[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago — the risk that the jury will “fill in the blanks” or “jump to conclusions” — has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[31] I emphasize, however, that assistance to the jury about the risk of jumping to conclusions may be given in different ways and, as noted in Fleet, trial judges will provide this assistance in the manner they consider most appropriate in the circumstances: p. 549.
(iii) “Rational” v. “Reasonable” Inferences
[32] I have suggested the use of the word “reasonable” to describe the potential inferences rather than the word “rational” used by Baron Alderson in Hodge’s Case and in many other cases including Griffin. Which of these words should be used was one of the issues touched on by the Court of Appeal (at para. 9) and I should explain why I think that the word “reasonable” is preferable. The following comments also apply to the adjective “logique”, which has been frequently used in the French version of this Court’s jurisprudence on this issue.
[33] The words “rational” and “reasonable” are virtually synonyms: “rational” means “of or based on reasoning or reason”; “reasonable” means “in accordance with reason”: Canadian Oxford Dictionary (2nd ed. 2004). While some have argued that there is a significant difference, I do not find that position convincing: see, e.g., E. Scott, “Hodge’s Case: A Reconsideration” (1965-66), 8 C.L.Q. 17, at p. 25; A. M. Gans, “Hodge’s Case Revisited” (1972-73), 15 C.L.Q. 127, at p. 132. It seems that our jurisprudence has used the words “rational” and “reasonable” interchangeably with respect to inferences: see McLean; Fraser v. The King, [1936] S.C.R. 1, at p. 2; Boucher, at pp. 18, 22 and 29; John, at p. 792; Cooper, at p. 881; Lizotte v. The King, [1951] S.C.R. 115, at p. 132; Mitchell, at p. 478; Griffin, at para. 33. This, in addition to the dictionary definitions, suggests that there is no difference in substance between them.
[34] There is an advantage of using the word “reasonable”. It avoids the risk of confusion that might arise from using the word “reasonable” in relation to “reasonable doubt” but referring to “rational” inferences or explanations when speaking about circumstantial evidence: see John, per Laskin J., dissenting but not on this point, at p. 815. In saying this, I do not suggest that using the traditional term “rational” is an error: the Court has said repeatedly and recently that the necessary message may be imparted in different ways: see, e.g., Griffin, at para. 33.
(iv) Whether the Inference Must Be Based on “Proven Facts”
[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point R. v. McIver, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d R. v. Comba, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[39] I have found two particularly useful statements of this principle.
[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.
[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
[43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
V. ARGUMENTS OF THE PARTIES
A. Arguments of the Crown
[92] The Crown argues that the accused was a party to the robbery. To prove that allegation the Crown relies upon the application of Nikolovski principles to video and photographic evidence; the application of the doctrine of recent possession to evidence of cash allegedly found in the possession of the accused; evidence of inculpatory admissions allegedly made by the accused to undercover police officers while in police custody; and a number of other items of allegedly inculpatory circumstantial evidence.
B. Defense Arguments
[93] The Defense in addressing the Crown argument as to the application of the Nikolovski principles contends that the quality of the snapchat video evidence is fleeting and blurry, and insufficient to identify the accused. The Defense also argues that as trier of fact I must be careful in applying the Nikolovski principles in a cross-racial context such as the case at bar.
[94] The Defense also attacks the reliability of the evidence of the undercover police officers as to the inculpatory admissions allegedly made by the accused to them. The Defense bases that attack on the absence of video and audio evidence of the alleged statements, and inconsistency alleged by the Defense to exist respecting the evidence of the undercover officers.
[95] Finally, the Defense submits that the evidence before me does not meet the Villaroman standards for a finding of guilt in a case, such as this, of entirely circumstantial evidence.
VI. ANALYSIS
[96] The evidence in the case at bar is entirely circumstantial.
[97] I intend now to examine the components of that evidence, and then to apply to them collectively the burden proof in accordance with the principles prescribed in R. v. Villaroman, [2016] 1 S.C.R. 1000, supra.
[98] For purposes of my analysis I have grouped the evidence in the following categories: (1) evidence of acts and circumstances; (2) evidence of identity; (3) evidence of statements of the accused; and (4) application of the doctrine of recent possession.
A. Evidence of Acts and Circumstances
[99] In this category I include both matters admitted in the agreed statement of facts and evidence I accept as true.
[100] According to the agreed facts on November 20, 2017 at approximately 3:57 pm 3 males wearing dark clothing and with their faces masked robbed a branch of Scotiabank located at 660 Eglinton Ave. W. in Mississauga; one of the robbers wore an “army green” or camouflage-coloured mask.
[101] Further, according to the agreed facts at 4:08 pm a four door Honda Civic, dark in colour, entered the underground parking garage at 3888 Duke of York Boulevard in Mississauga.
[102] The time between the robbery and the entry of that automobile into the garage conformed generally to the 8 or 9 minute Google Maps calculation put in evidence by Officer Jackson. I accept the reliability and credibility of that evidence, but that evidence is subject to inherent weakness as a result of factors such as road closures.
[103] Taking together the agreed facts, the testimony of Officers Jackson and Forsyth, and the video surveillance introduced by Officer Jackson I find that the Honda automobile was registered to the accused’s mother as of November 20, 2017.
[104] I accept also based on Jackson’s evidence and the video surveillance that at approximately 4:10 pm three persons in dark clothing waited at the entrance to the elevator bank of 3888 Duke of York from the underground garage; and then, along with a fourth person in dark clothing who came into the picture, entered the building.
[105] According the agreed facts at 4:11 pm four males entered an elevator through the parking garage, one of whom was Anthony Dass who had a shaven head.
[106] Based on Jackson’s evidence and the video surveillance I accept that the four males exited the elevator on the 27th floor at approximately 4:12 pm; and that one of the males had a full, grey backpack.
[107] According the agreed facts Anthony Dass called for delivery of a pizza after 1:00 am on November 21, 2017; the delivery was to be to unit 2725 at 3888 Duke of York Boulevard; and Mr. Dass went to the lobby at approximately 1:59 am to pick up the pizza and was arrested.
[108] Further, it was stated in the agreed facts that Snapchat videos from Mr. Dass’s phone date stamped November 20, 2017 showed him and other persons holding stacks of currency which came from the branch of Scotiabank which had been robbed.
[109] According to the agreed facts on November 21, 2017 at approximately 2:36 am the accused was located inside unit 2725 of 3888 Duke of York Boulevard; he was arrested and interviewed by the police on November 21, 2017; and during the interview he wore the same clothing in which he was arrested, except for his shoes.
[110] Taking together the agreed facts and the evidence of Officer Matta, I find that on November 21, 2017 a search warrant was executed at unit 2725 of 3888 Duke of York Boulevard; during that search on the kitchen counter were found an identification document containing Mr. Dass’s photograph and an identification document for the accused; during that search a black balaclava was located inside the washing machine in the laundry room of the unit; and Canadian currency totalling $48,370.00 and American currency totalling $3202.00 U.S. was seized from the bedrooms in the unit.
[111] Taking together the agreed facts, the evidence of Officers Jackson and Forsyth, and the video surveillance introduced by Jackson I find that on November 23, 2017 police located the Honda registered to the mother of the accused in the parking garage at 3888 Duke of York Boulevard; that found within the vehicle was an army green, camouflage-coloured balaclava; and that scientific analysis demonstrated that the probability that the DNA on the mask belonged to anyone other than Mr. Dass was virtually nil.
B. Evidence of Identity
[112] The Crown has asked that as trier of fact I apply the Nikolovski principles, using the video and still photo evidence from the interview of the accused on November 21, 2017 as the known sample of the accused’s appearance.
[113] I have carefully and repeatedly reviewed the appearance of the accused in that evidence, being exhibits 15 and 16.
[114] Exhibit 15, the video, offers a medium clarity view of the accused’s appearance. The two still photos in exhibit 16 are not of as good a quality. The features of the accused, of which I am sure from the known sample, are a prominent forehead and medium brown skin tone. The accused is also wearing a black shirt with white lettering stating “Nike Air.”
[115] I am unable to identify any of the individuals apparently robbing the bank who appear in the bank surveillance video evidence, although I carefully reviewed that evidence.
[116] I have carefully and repeatedly reviewed the portion of the Snapchat video created November 20, 2017 at 4:54 pm and taken from the phone of Anthony Dass purportedly showing the accused holding currency. I have also reviewed carefully and repeatedly exhibit 7 which contains a screen shot and zoomed in screen shot from that portion of the video.
[117] The video clip is very short and the screen shots are not of excellent clarity. I am, however, able to conclude that the individual in both resembles the accused as he appears in the known sample. I find this resemblance based on the prominent forehead of the individual in the Snapchat video, exhibit 7, and the known sample, as well as the medium brown skin tone of the individual in the Snapchat video and the individual in the known sample.
[118] I am also able to say that the man in the Snapchat video and exhibit 7 is wearing the same black shirt with “Nike Air” written on it as the accused is wearing in the known sample. That fact reinforces the resemblance I find between the individual shown in the known sample and the one shown in the Snapchat video and exhibit 7.
[119] Although not part of the application of the Nikolovski principles, and analytically a circumstance belonging under evidence of acts and circumstances, I note that Officer Matta identified the premises where the Snapchat video under discussion was taken as unit 2725 of 3888 Duke of York Boulevard. He relied on the flooring, black couch, and picture above the couch as he recollected the premises and as portrayed in photographs he put into evidence. I accept his evidence that the Snapchat video was taken in unit 2725.
[120] I have carefully reviewed from exhibit 4, video surveillance footage of the elevator at 3888 Duke of York, and exhibit 6, a screen shot from that video footage. The screen shot shows Mr. Dass and another man.
[121] I have compared that man’s appearance in exhibits 4 and 6 to the known sample of the accused’s appearance.
[122] The surveillance footage is not of excellent clarity. Exhibit 6 is even less clear. However, I can discern in exhibit 4 in the man with Mr. Dass the prominent forehead and medium brown skin tone I have seen in the known sample of the accused’s appearance; and in exhibit 6 I can discern the prominent forehead. I find on the basis of those observations a resemblance between the accused as seen in the known sample and the individual in exhibits 4 and 6.
[123] In coming to my conclusions on identification I have applied the legal principles set out above in these reasons, including cautioning myself as to the risks of cross-racial identification.
C. Evidence of Statements of the Accused
[124] The accused attacks the reliability of the evidence of Chan, Faria, and Stewart as to the statements of the accused made to them.
[125] The accused argues that the reliability of that evidence is undermined by an absence of video and audio recording of the alleged statements.
[126] In R. v. Oickle, [2000] 2 S.C.R. 3 at para. 46 Justice Iacobucci comments on this issue of recording statements of an accused:
46 Before turning to how the confessions rule responds to these dangers, I would like to comment briefly on the growing practice of recording police interrogations, preferably by videotape. As pointed out by J. J. Furedy and J. Liss in “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim. L.Q. 91, at p. 104, even if “notes were accurate concerning the content of what was said . . ., the notes cannot reflect the tone of what was said and any body language that may have been employed” (emphasis in original). White, supra, at pp. 153-54, similarly offers four reasons why videotaping is important:
First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandating this safeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.
This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.
[127] Further, the accused attacks the reliability of the police evidence of the alleged statements based on alleged inconsistencies in the evidence of the three officers.
[128] Counsel for the accused explicitly stated that he was not attacking the credibility of the three undercover officers.
[129] In my view the evidence of the three officers was consistent in establishing that the accused had expressed a desire to retain the services of Chan and Faria, whom he believed to be money launderers, to change the serial numbers on bills by substituting other bills. I find that he expressed his desire that they provide that service.
[130] In assessing the reliability of the evidence of the three officers in relation to comments allegedly made by the accused about photographs that the police had shown to him, I take into account the evidence of Officer Jackson, which I accept, that he had shown to the accused the first page of exhibit 7; that photograph shows a man, whom I have found to resemble the accused, holding currency. I further take into account that the parties in the agreed facts admitted that the Snapchat videos show persons holding currency from the branch of the Scotiabank which had been robbed.
[131] I find that the evidence of the three officers was consistent in establishing that the accused believed that the police had pictures of him; I accept that evidence. Chan testified that the accused had stated that the pictures did not prove anything. The other two officers testified that the accused spoke of the police having pictures of him holding something thick or wads of cash. Despite the lack of exact consistency in the testimonial words of the three officers, I find that the accused did utter words to them supporting the inference that he was the person shown in the first page of exhibit 7. I have made that finding by assessing the evidence of the officers in the context of all of the other evidence and agreed facts to which I have referred, including Officer Jackson’s evidence about showing the accused the first page of exhibit 7.
D. Application of the Doctrine of Recent Possession
[132] The Crown alleges that the doctrine of recent possession could apply either based on the accused’s presence with stolen cash inside unit 2725 or based on his holding stolen cash in a Snapchat video.
[133] In the case before me determining whether there has been proof of the “possession” element of the requisites for the application of the doctrine of recent possession would require me to assess contextual evidence and make a finding. It is not a clear case where the accused is shown to be uncontestably in possession of the items in question. In my view, it is fairer and more appropriate in the case at bar to apply the principles set out in Villaroman, supra to all of the evidence rather than making the kind of determination which I have described and then another based on Villaroman.
[134] Accordingly, I intend now to turn to the application of the Villaroman principles to the case at bar.
E. Application of the Villaroman Principles
[135] I take into account the agreed facts, all of the evidence, and the submissions of the parties, as well as the findings and analyses I have made above.
[136] The only reasonable inference open to me is that the accused was a party to the robbery of the Scotiabank branch on November 20, 2017, as alleged by the Crown. I see no other conclusion based on logic and common sense applied to the record in the light of human experience. Only speculation could lead me to another conclusion.
[137] The evidence and agreed facts taken together establish that the accused, after being party to the robbery in some fashion, arrived with Anthony Dass and another man at 3888 Duke of York in the automobile registered to the Accused’s mother. That automobile contained the balaclava which Dass had worn in the robbery.
[138] The three men joined by another then went up in an elevator to unit 2725. There the accused was captured on a Snapchat video holding money from the robbery.
[139] On January 29, 2018 he made an admission to undercover officers that he was shown on the video.
[140] All of the acts and circumstances I have outlined, my findings of resemblance between the accused and other video and photographic evidence, as well as my findings in relation to the statements he made to the undercover officers support my conclusion of guilt.
[141] I, therefore, find the accused guilty as charged.
Bloom J.