SUPERIOR COURT OF JUSTICE – ONTARIO
RE: her majesty the queen
AND:
jessie breese, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Rosemarie Juginovic, for the Crown
Stephanie DiGiuseppe, Amicus
Jessie Breese (self-represented)
HEARD at Toronto: October 5, 7-9, 12,-14, 2020
REASONS FOR JUDGMENT
1This case is not about what happened but about who did it. The principal issue is the quality of the identification evidence.
2Mr. Breese is charged with participating in a bank robbery on May 24, 2018 and of possessing and recklessly discharging a firearm during the course of that robbery.
3Virtually all of the actions that constitute the physical elements of the offences charged are recorded on high quality surveillance cameras and in the presence of multiple witnesses who were able to comment upon those silent videos. The three individuals who committed the bank robbery wore gloves and had their faces almost completely obscured by hoodies, by a mask or both. The identification of Mr. Breese as one of the robbers depends very significantly on the testimony of Mr. Nathan Hunter who has admitted his participation in the robbery and is awaiting sentencing on his guilty plea.
4The Crown’s theory is that Mr. Breese is the tall man depicted in the bank’s surveillance video wearing a dark-coloured hoodie and holding a gun. Has the Crown proved beyond a reasonable doubt that Mr. Breese is that man?
Background facts
The robbery
5The core events giving rise to these charges and my findings of fact in relation to them can be quickly summarized.
6The narrative of the events that I shall relate below relies significantly upon video surveillance evidence from the TD Bank branch from the time of the incident (a few minutes before and after 5:00 p.m. on May 24, 2018). While Mr. Breese said that he wanted an expert to examine the video evidence at the pixel level to look for signs of tampering, I am fully satisfied that the clips all faithfully record the events depicted and were not altered or tampered with in any way.
7I reach this conclusion because:
a. Mr. Cummings, manager of crime prevention at TD Bank, explained the manner in which these recordings are made, stored and accessed. In brief, the recordings are created using a particular software platform and stored on servers located in each branch, including the branch in question, and can be accessed centrally over the network by Mr. Cummings and his staff when assisting police in an investigation. The software platform permits the images to be viewed and copied but does not permit them to be altered;
b. Each of the eye witnesses present in the branch who testified was able to identify the images as accurately reflecting what they saw and experienced;
c. While some of the eye witnesses remembered some details differently before viewing the images, for example, Ms. Yuen could only recall two men coming in although three are clearly visible on the video clip – the differences are readily accounted for by the traumatic nature of the events and the speed with which they occurred; and
d. There is no evidence at all that any of the video clips were subject to any kind of tampering – they are consistent with each other and synchronized with each other, showing the same thing from several different angles but at the same time.
8The evidence in no way suggests tampering has occurred as Mr. Breese suggests is possible. He was able to articulate no grounds for that suspicion beyond the natural differences in perspective and the frailties of memory of eye witnesses that courts are well familiar with. There were no steps taken by Mr. Breese or by his counsel (when he had counsel) to identify or retain an expert to provide the evidence he thought he might like to introduce. The interests of justice require allowances to be made with self-represented parties at trial but this does not extend to indulging every whim and suspicion. The trial proceeded.
9On May 24, 2018 a white Honda Accord four-door sedan bearing Ontario plate BMDH 641 drove by the branch of the Toronto-Dominion Bank located at 673 Warden Avenue in Scarborough shortly before 5:00 p.m. Initially the car pulled into the parking lot attached to the branch. After pausing a moment, the car turned around, exited the TD parking lot and entered the driveway and parking lot of the self-storage centre located next door. It’s license plate was clearly visible on a TD surveillance camera as it executed a three-point turn before exiting the TD property.
10It did not go far. The white Honda immediately made a right turn into the driveway of the property next door to TD belonging to a storage company. Here, the white Honda proceeded towards the back of the lot, parked briefly beside a truck and then, following another short delay, exited that parking space and rolled slowly back the way it had come towards Warden Avenue. Instead of exiting on to Warden Avenue though, the car pulled over to the side of the parking area just a few metres short of Warden Avenue and came to a stop opposite the front door to the TD branch, separated from it by a small grass median.
11There was a further short delay of about twelve seconds following which the two passenger side doors of the car opened and two men dressed in light grey hoodies and wearing blue nitrile gloves emerged. A split-second later, the rear driver-side door also opened and a man in a dark coloured – likely green – hoodie emerged. He too was wearing blue nitrile gloves. Nobody emerged from the driver’s seat of the car.
12The three men headed together, led by the man in the dark hoodie, across the grass median towards the nearby door of the TD branch. The driver-side passenger door from which the man wearing the dark hoodie had just emerged was left open and would stay open until they returned.
13As the three men made their way towards the entrance to the bank, a customer exited from the branch and passed the first of them in the doorway. He gave them a brief glance and proceeded on his way to the parking lot at the rear of the branch to retrieve his vehicle and exit.
14The man in the dark-coloured hoodie was the first to enter the branch, grabbing the door through which the customer had just passed with his left hand before it had a chance to fully close. He had his right hand in his pocket, his hoodie pulled up concealing much of his face and a mask that concealed all but his eyes and forehead. This was before the pandemic when such garb was more distinctive perhaps than it might appear today.
15The two other men in grey hoodies had their hoodies pulled tightly over their heads obscuring all but a small amount of each of their faces. They followed quickly on the first man’s heels.
16By the time he had taken one or two steps into the vestibule, the man in the dark hoodie had removed his right hand from his pocket and it could be seen by the surveillance camera to carry a dark-coloured handgun by his side.
17There were four tellers on duty and eight customers standing at the teller windows or in line at the time the three men entered the branch. It was a small branch with only a small banking hall before the teller windows and a variety of offices behind these.
18As identity is in dispute, I shall provisionally identify these three men as “dark hoodie”, “tall grey hoodie” and “medium grey hoodie” respectively. The closer views of the interior bank surveillance cameras provided additional identifying details of each of the three men but none of sufficient quality to make a confident identification. The hoodies and bulky clothing worn combined with nitrile gloves meant that the portions of their face left uncovered from time to time were the only parts of their skin visible at any time during the incident.
19Dark hoodie wore dark slacks and a dark coloured, likely green, hoodie without a logo and dark slacks. The hood on his sweater was worn up at all times when he was recorded by surveillance cameras and he had a mask on covering his face from the nose down. As a result of the hood over his head, only limited views of the area around his eyes was visible on the surveillance video. He was wearing glasses. He appears light-skinned or Caucasian in the video clips. That conclusion was confirmed by the testimony of the teller who had the closest look at him – Ms. Yuen. She positively identified him as being Caucasian. The video capture of him passing in front of the height marker installed by the bank just inside the vestibule door indicates that this man was somewhat taller than six feet, likely several inches taller, greater precision not being possible from the captured images.
20Tall grey hoodie was wearing a grey hoodie tied about his head with a “The North Face” logo visible on the upper chest area. He wore dark coloured slacks with a Nike logo. His face became partially uncovered in some of the surveillance clips and he can clearly be seen to be Caucasian wearing light-coloured sun glasses. He too appeared to be over six feet in height as he passed the marker on the vestibule door, although likely a little shorter than dark hoodie.
21Medium grey hoodie had his hoodie tied very tightly about his entire head the entire time, leaving only his nose and glasses-covered eyes showing. The hoodie bore a large “Adidas” brand across the chest and he wore dark slacks. He is clearly several inches shorter than the other two men. His skin complexion appears dark judging solely by his nose.
22The three men proceeded quickly towards the teller area. Dark hoodie was still in the lead at first. He proceeded towards the closest teller window, that of Ms. Mira Yuen. Ms. Yuen was attending to a customer and did not notice the three men enter at first. After a couple of seconds, she looked up and registered concern almost immediately.
23Dark hoodie continued walking directly towards Ms. Yuen’s teller window and from a distance of two or three paces, pointed the handgun he carried in his right hand towards the ground and a little to his left and fired a single round. There was no delay – he walked in, walked up towards the counter, brought the gun up slightly and fired immediately in an apparently casual manner. The surveillance video shows a brief flash-like event on the tile floor in line with where the gun was aimed at the point where the gun was apparently fired, some dust or smoke rising in the immediate area of this and persisting. A mark on the tile floor was clearly visible in the same spot thereafter.
24Ms. Yuen recalled that dark hoodie ordered everyone to get to the ground. She heard the men demand money. She dropped to the ground where she stood and saw no more of the events. Dark hoodie can be seen gesticulating with the gun once or twice after the shot was fired before turning around and heading back to wait by the vestibule door.
25Mr. Collins was next in line waiting for a teller when he heard a single shot go off and a shout ordering everyone to get to the floor. The surveillance video shows him deliberately turning his head in the direction of the shot and then slowly and deliberately taking a step or two away from the line and getting down to the ground where he lay for the rest of the incident. Other than the brief observations of the gun and the man holding it that he made when he glanced at it at the beginning, he observed no more of the incident and sought to avoid drawing attention to himself. I shall refer further to his observations of the gun and the man holding it below.
26Mr. Ferracuti was the manager of the branch on duty at the time. He was working the front teller area. He saw the three men soon after they entered the branch and began walking towards the teller area. By their disguises and the fact one of them carried a gun, he quickly determined that a robbery was in progress. He saw the man in the dark hoodie was carrying a small dark gun in his hand that he pointed down and slightly to the left of the teller area and fired a shot. He noticed things were hazy after the shot was fired, whether due to smoke or dust he could not say. In accordance with his training, he stepped forward to deal with the robbers. Medium grey hoodie and tall grey hoodie approached the teller window where he stood, just to the left of Ms. Yuen’s window. Mr. Ferracuti retrieved and then tossed on to the counter a prepared “decoy pack” of money which was immediately grabbed by medium grey hoodie who put it in his right front pocket.
27The decoy pack is a prepared package containing a small amount of money – Mr. Ferracuti estimated it at $220 – that is kept in an area beside the cash-dispensing machine for just this purpose. He said that the tellers are all trained not to disturb or touch it. The serial numbers of the bills in the pack are recorded and a GPS or exploding dye pack was concealed within – he did not know which was inserted in this case.
28The robbers – for at this point that is what they clearly were - continued to demand more money insistently. Mr. Ferracuti had to explain to one of them that he could do nothing to speed up the computer that was dispensing the money. At some point, Mr. Ferracuti heard one of the men say “Don’t make me use this gun again” or words to that effect.
29Mr. Ferracuti’s evidence matches quite neatly the gestures that dark hoodie can be seen to make with the gun in his hand immediately after the shot was fired and while people were getting down. I find that it was he who ordered people to get down and it was he who threatened them by saying “don’t make me use this gun again”.
30The two men in grey hoodies paced rapidly back and forth in front of the teller window occupied by Mr. Ferracuti in an obvious state of agitation. Mr. Ferracuti pressed the emergency dispense button on the cash dispensing machine several times to respond to their demands. This button is designed for use in just this kind of emergency and dispenses relatively small amounts of money in small bills and slowly. Each time it dispenses mixed bundles of about $200. It does so with some delay. It cannot be speeded up by the operator. He retrieved and passed over the counter two such bundles to tall grey hoodie.
31As soon as Mr. Ferracuti passed the second of the two emergency bundles over to tall grey hoodie, both men in grey hoodies swiftly retreated back the way they had come.
32Dark hoodie had retreated to the door by the vestibule area soon after firing his gun and, as noted above, struggled for a few seconds to attempt to clear the jam in the handgun he still carried in his hand. While he was doing this, something fell to the floor that dark hoodie can be seen to pick up. The three then ran out of the branch and back to the white Honda from which they had emerged only a few moments earlier.
33The white car began moving forward even before the three men returned to it, confirming that a driver remained in the car while the robbery was in progress. As soon as the three were back inside the car, it pulled away, making a swift left-hand turn on to Warden Avenue. Meanwhile, Mr. Ferracuti proceeded to lock the door to the branch and await the arrival of police.
34From the time the three men entered the branch until the time they left it, one minute and twenty seconds elapsed.
Issues to be determined
35I propose to break down the issues to be resolved in this case in the following order:
a. Did the man I have described as “dark hoodie” commit an armed robbery at the TD Bank branch at 673 Warden Avenue in Scarborough on May 24, 2018 contrary to s. 344(1)(a) of the Criminal Code? If so;
b. Has the Crown proved that Mr. Breese is the same “dark hoodie” beyond a reasonable doubt? If so;
c. Did Mr. Breese possess a loaded firearm while inside the above-mentioned TD Bank branch on that day; and
d. Did Mr. Breese intentionally discharge a firearm reckless as to the life or safety of another at that time and place contrary to s. 244.2(1) of the Criminal Code?
Analysis and discussion
(a) Did the man I have described as “dark hoodie” commit an armed robbery at the TD Bank branch at 673 Warden Avenue in Scarborough on May 24, 2018 contrary to s. 344(1)(a) of the Criminal Code?
36Section 21(1) of the Criminal Code describes parties to an offence as everyone who commits it, does or omits to do anything for the purpose of aiding another to commit the offence or who abets anyone who commits it.
37There can be no doubt whatsoever that the three men – dark hoodie, tall grey hoodie and medium grey hoodie – exited the white Honda Accord sedan, entered the TD Bank branch and approached the teller area with the common intention of committing a robbery. They came together, acted as a team throughout, and left together. This conclusion arises inexorably from the viva voce testimony of the four witnesses who saw and heard them in action inside the branch and from the video surveillance clips inside and outside the bank that were viewed and made exhibits.
38Their collective actions amounted to robbery as defined in s. 343 of the Criminal Code. The context in which dark hoodie carried a gun in his right hand, fired it, demanded everyone get down on the ground combined with the actions of the two men in grey hoodies demanding money from Mr. Ferracuti, taking it and demanding more, demanding that he speed up, the threat heard by Mr. Ferracuti of “don’t make me use this gun again” also lead to the conclusion that the three men, acting throughout as a team, intended to commit and committed a robbery together that afternoon. They stole money and used violence or threats of violence to overcome resistance to the stealing.
39Finally, the robbery was an armed robbery. The video surveillance clips and the eye-witness testimony of Mr. Ferracuti, Mr. Collins and Ms. Yuen all confirm that dark hoodie had a gun in his hand throughout.
40Can I find beyond a reasonable doubt that the item held by dark hoodie in his hand was an actual restricted or prohibited firearm? Notwithstanding the fact that the gun carried by dark hoodie that day has never been recovered and notwithstanding the fact that no evidence has been led regarding the recovery of a spent shell casing or a recovered bullet or bullet fragments, the totality of the evidence leads overwhelmingly to this conclusion.
41The Crown has cited the cases of R. v. Gordon, 2017 ONCA 436 and R. v. Charbonneau, 2004 CanLII 9527 (ON CA) for the common-sense proposition that the trier of fact is entitled (but of course not obliged) to conclude that an item may be identified as a handgun from the totality of the circumstances, including the description of it by eye witnesses, the manner and context in which it was used and the belief of those who observed it even if the handgun itself is not in evidence.
42Four testifying eye witnesses present in the bank branch during the robbery all testified about hearing the gunshot. Three of them actually saw the gun in the hands of dark hoodie.
43Ms. Yuen saw dark hoodie walking towards her counter holding a gun in his hand. She did not see him fire it, but thought she saw the bullet strike the ceiling. She hear the loud report of what she took to be a gun shot. She clearly believed that what dark hoodie carried was an operating handgun and heard the shot that she did not see come from it.
44Mr. Ferracuti also saw dark hoodie walking forward with a gun in his hand. He saw dark hoodie aim it to the left and downwards and fire it. He heard the loud report and saw the smoke or haze in the air afterwards. He heard one of the three men say “don’t make me use this gun again”. He clearly believed that the gun was an operating handgun that was in fact used to shoot a bullet into the floor area and had the opportunity and means to make that observation.
45Mr. Collins had lay experience with firearms. He did not see the firearm until after the shot was fired but he deliberately looked at it after hearing the shot fired. He heard the loud report of what he took to be a gun. He felt a piece of debris hit the side of his head immediately afterwards in circumstances that led him to believe it was caused by the gun shot. He looked over briefly at the gun and was able to observe the red iron gun sights and the fact that the slide appeared to be jammed in the back position, not having returned forward after firing. Mr. Collins had the opportunity and means to make his observations and had the added lay expertise of familiarity with firearms.
46Mr. Deol did not see the gun but heard what he took in the context to be a gun shot.
47The video surveillance cameras confirm the observations of all four witnesses. Dark hoodie can be seen to walk directly towards Ms. Yuen’s teller window, lifting his gun slightly but leaving it pointed at the ground. As noted, there is no sound to the video clip but a frame-by-frame view of the clip clearly shows the impact of a projectile on the floor directly in the line of fire of the gun. The common reaction of virtually all of the customers and bank staff a split-second after that apparent video evidence of a gun shot is unmistakable.
48The video evidence and the evidence of Detective Moreau both confirm Mr. Collin’s evidence regarding the apparent jamming of the gun after firing with the slide stuck in the back position. Detective Moreau, with extensive firearms experience, described an “out of battery” jam of a handgun as occurring when the slide is stuck at the back after firing and does not return. The round needs to be ejected to rack the slide forward and clear the jam. The video surveillance clips showing the gun in dark hoodie’s hand before and after the shot clearly show the slide in the forward position prior to firing whereas the front of the barrel uncovered by the slide is visible in profile in video clips from immediately after the gun was fired. The clips also show dark hoodie appearing to attempt to unjam the slide manually while standing at the vestibule door waiting for the other two men to retrieve the money and exit with him. While doing this, something falls to the floor – very possibly the spent cartridge – and is picked up by dark hoodie.
49I find that “dark hoodie” possessed a small, loaded handgun when he entered the 673 Warden Avenue TD Bank branch at approximately 5:00 p.m. on May 24, 2018. He brandished the gun as he approached Ms. Yuen’s teller window and he fired it into the ground area in front of him and to his left.
50From the context in which it was fired, the video evidence and the eye-witness evidence, I find that the firing of the gun was an intentional act by dark hoodie. After firing the gun, dark hoodie ordered occupants of the branch to get down and did so for the purpose of assisting the completion of the robbery that was in progress. A threat was made to fire it again. All of this points to an intentional act.
51Amicus urged me to consider the evidence of the gun jamming as opening up the possibility that the gun was fired by accident. I do not agree. The evidence of jamming described by Mr. Collins and Detective Moreau was of jamming after firing when the slide failed to return forward over the barrel as part of the re-loading process. The intentional nature of the shot fired is clear from the video evidence and the eye witness evidence of dark hoodie’s actions immediately afterwards. The shot was designed to attract attention, to intimidate and to lend authority to his command that everyone should get down. That was no accident.
52In reaching these conclusions, I have consciously eschewed any reference to the contested evidence of Mr. Nathan Hunter who has admitted to being “tall grey hoodie” during the robbery. I have not done so because I have found his evidence to be unreliable or unworthy of belief. Rather I have done so in order to address that specific question – the credibility and reliability of Mr. Hunter’s evidence regarding the robbery and Mr. Breese’s alleged role in it – separately below. Mr. Hunter’s evidence confirms all of the conclusions I have reached here and might be resorted to in addition to the other evidence that I have cited. However, none of these conclusions rely on Mr. Hunter’s evidence.
53I find that the Crown has proved beyond a reasonable doubt that dark hoodie committed an armed robbery within the meaning of s. 344(1)(a) of the Criminal Code.
(b) Has the Crown proved that Mr. Breese is the same “dark hoodie” beyond a reasonable doubt?
54The Crown presented both circumstantial evidence and direct evidence by which it is alleged that I may find that Mr. Breese is the person I described earlier as dark hoodie and that I may do so beyond a reasonable doubt. I shall now review that evidence and my conclusions on the issue of identification.
(i) Circumstantial identification evidence
55The bank’s surveillance video showed three men. Dark hoodie appeared to be somewhat over six feet in height, of medium to slight build possibly of a light complexion. He wore glasses when captured by the surveillance video but whether these were prescription glasses or merely for purposes of disguise cannot be said. Mr. Breese certainly fits that general description and thus cannot be excluded based on the surveillance video. In isolation, however, this evidence is clearly not sufficient to identify him as dark hoodie beyond a reasonable doubt.
56The surveillance video identified the white Honda automobile in which the three men arrived and in which they made their escape as a Honda Accord with Ontario licence plate BMDH 641. For reasons that are not material here, police learned that the license plate was not registered to the white Honda on which it was affixed. They also learned that the same automobile may be associated with an apartment building in Barrie at 90 Edgehill Drive.
57The investigative path that led police to this apartment building and ultimately to police locating and impounding the vehicle for purposes of a search under a warrant is not before me and is not relevant to any issue I must decide. What is relevant is that police attended the apartment building at 90 Edgehill Drive in Barrie and, upon speaking to the superintendent of the building (Mr. James Edgar), obtained a copy of surveillance video dated June 3, 2018 depicting the front driveway and lobby areas of that building covering a period of time that included 2:43 p.m. until 5:25 p.m. on that day.
58The clips from this building were played to Mr. Edgar (the aforementioned superintendent), Mr. Nathan Hunter (a confessed participant in the robbery) and Mr. Breese himself. Mr. Breese, Mr. Hunter and Mr. Edgar all identified Mr. Breese where he appears in the various clips.
59Mr. Hunter identified two other men in these video clips who he also said were involved in the robbery – the man I have called “medium grey hoodie” and the man driving the getaway car. I shall deal with Mr. Hunter’s other identification evidence more directly below. At this stage, I shall not reference Mr. Hunter’s evidence regarding this building or the contents of these video clips. I am quite deliberately segregating the conclusions of fact that I can reach without reference to Mr. Hunter’s evidence and those which rely upon his evidence in whole or in part given the issues raised with regard to Mr. Hunter’s credibility.
60The video clips depict the arrival and eventual departure on June 3, 2018 of a white Honda Accord sedan apparently identical to the getaway car filmed during the robbery on May 24, 2018. The license plate of the vehicle was visible in some of the clips and was the same (BMDH 641) as the getaway car used in the robbery. The car is depicted arriving at the front circular driveway at 2:44 p.m., parking in the circular driveway area for a time.
61The superintendent Mr. Edgar identified the accused Mr. Breese in several of the video clips and knew Mr. Breese as a tenant in the building for several years. He also identified tenancy documents listing Mr. Breese and his mother as occupants of a two-bedroom unit on the sixth floor of the building.
62The surveillance video depicted Mr. Breese exiting the elevator lobby area in the company of a shorter black man, walking directly towards the parked white Accord and interacting in a familiar way with men who were in or exited from the car for several minutes. The clips show that he returned to the elevator lobby with three of the men. A subsequent clip shows the four men leaving the elevator lobby area approximately ten minutes later at 3:25 p.m.
63As noted, police located and impounded the white Honda Accord with the license plate BMDH 641. Constable Tulli performed a search of the automobile pursuant to a warrant on June 7, 2018. He discovered what appeared to be red dye consistent with the dye packs used by banks on the rear passenger side door of the car during his search. He was indeed looking for just such a clue. He took swabs of this area and sent the samples to the Centre for Forensic Science. Mr. Bryant of the CFS received the samples and arranged for them to be tested. He found that the samples contained a chemical known as MAAQ which is commonly used in dye packs by banks.
64The bank’s surveillance video showed that it was “grey hoodie” who retrieved the “decoy pack” initially placed on the counter by Mr. Ferracuti in response to the demands of the robbers. He placed that decoy pack in his right front pocket. The external surveillance video showed that this same person – medium grey hoodie – got into the rear driver side door after the robbery, closely followed by dark hoodie. Tall grey hoodie – whom I shall hereafter identify as Mr. Hunter given his admission of guilt – is seen to get into the same door from which he originally emerged: the front passenger side door.
65It follows from this that medium grey hoodie, who had the decoy pack in his right front pocket, was very likely seated beside the rear passenger side door at the very place where Constable Tulli found the red stain.
66I find that the red stain found by Constable Tulli during his search of the white Honda automobile came from the explosion of a dye pack that was contained in the decoy pack taken by medium grey hoodie during the robbery. I further find that the vehicle depicted in the surveillance video as the getaway car used in the robbery on May 24, 2018 is the same vehicle depicted in the surveillance video parking outside the Barrie residence of the accused and with whose occupants the accused interacted in a familiar way on June 3, 2018, inviting three of them into the building and remaining with them for approximately ten minutes. The same vehicle was later searched by police and found to contain the red stain on the passenger side door described above that was caused by a chemical consistent with bank dye packets.
67All of this circumstantial evidence clearly connects Mr. Breese to the robbery but it does not alone permit his certain identification as tall dark hoodie. He is of the right height and build and the evidence shows a clear connection between Mr. Breese and the car used in the robbery. Knowing or associating with some of the robbers alone cannot demonstrate that Mr. Breese was one of them and the criteria of height, skin colour and build alone are simply too vague to permit one to narrow the list of candidates to one and one only.
(ii) Mr. Breese’s evidence
68Mr. Breese elected to call evidence. He had no witnesses available to testify. He had asked the Crown to subpoena certain named witnesses that he did not wish to call. Instead, he wanted to call three witnesses only one of whom he was able to identify and for purposes that remained unclear.
69Mr. Breese said that he wished to call a retired police officer regarding forensic tests of bullet fragments. The Crown called no evidence that any bullet fragments existed and no issue had been raised regarding bullet fragments. Mr. Breese did not ask that the gentleman in question be subpoenaed and took no steps to do so himself. He was able to articulate no logical basis for relevance. If no bullet fragments were found, that is consistent with the current state of the evidence that contains no evidence of a bullet or spent shall casing being found. If bullet fragments or a bullet were found, this would support the inference that the gun was in fact fired, which would undermine not advance the defence theory. At all events, there was no gun retrieved that might have permitted a ballistics matching. I did not suspend the trial to pursue that avenue left unpursued prior to trial by Mr. Breese.
70Mr. Breese also wished to have an unidentified forensic scientist who may have examined a pair of seized running shoes for DNA. For much the same reason, I declined to suspend the trial to enable him to pursue that avenue of inquiry left untouched by him prior to trial beyond general statements. As with the bullet fragments, there is no evidence that any shoes resembling the shoes seen on dark hoodie’s feet in the surveillance video clips of the robbery were ever found. A witness who might establish that Mr. Breese possessed a pair of similar-looking running shoes would undermine and not advance his case even if that witness was unable to find DNA belonging to Mr. Breese on the shoe – this latter being Mr. Breese’s apparent goal. If the shoes were not similar to those in the video, the case would be no further advanced that the state of evidence as it currently stands which is that no matching shoes have been located.
71Lastly, Mr. Breese wished to challenge the authenticity of the TD Bank surveillance video clips. I rejected that request as well for the reasons discussed above.
72Mr. Breese also elected to testify in his own behalf. He did so after being very thoroughly briefed both by me and by Amicus as to his right to remain silent, the Crown’s burden of proof, the presumption of innocence and other matters. I called his attention to the very thorough cross-examination of Mr. Hunter that he had witnessed and told him that he could expect to be questioned in a similar way and I reminded him that he had to follow my directions when testifying. He then took the stand and proceeded to make a single statement to the effect that he did not do what he is charged with. Then cross-examination began.
73It did not get far. Mr. Breese began by admitting a recent guilty plea in another matter but claimed that he had done so under duress and had so advised the judge involved. He identified Mr. Rose as either the source of duress or one of them (it was not clear). The suggestion that a judge would accept a guilty plea from someone who has told the judge that the plea was the product of duress is an unlikely one and can safely be discounted still further given that Mr. Breese also said that he raised that question before the Court of Appeal who had upheld his conviction very recently.
74Mr. Breese then confirmed that he knew Mr. Rose, Mr. Clarke and Mr. Hunter and for periods of time broadly consistent with Mr. Hunter’s testimony regarding the timing and type of relationship between the four of them. He confirmed that Mr. Hunter may have been to his apartment in Barrie in the company of Mr. Clarke and Mr. Rose as Mr. Hunter had claimed in his own testimony. When asked to confirm Mr. Rose in the same clips that Mr. Hunter had identified Mr. Rose from, Mr. Breese abruptly announced that the question caused him duress and that he would answer no more questions. He was advised by me that failure to answer questions could amount to contempt. I adjourned the matter until the next day to give him time to consider matters further. The next morning I advised him that failure to answer questions would mean that his evidence will have been entirely untested on cross-examination and that I could attach no material weight to it in consequence. He continued to refuse to testify or permit himself to be examined further.
75Mr. Breese testified that he did not commit the crimes he is charged with but refused to submit to any meaningful cross-examination. I cannot find that his testimony convinced me of his innocence or raised any reasonable doubt in my mind regarding any of the evidence that might be looked to support his conviction. His denial of guilt is entitled to no weight in these circumstances.
76What if any other inferences can I draw from his limited testimony? I cannot and do not draw any inference of guilt. What calculus went through Mr. Breese’s mind in deciding to testify in such a narrow fashion I cannot say. However, his own misapprehensions of what tactical devices might serve his interest does not displace the Crown’s burden and I cannot extend a conclusion that no material positive weight can be attributed to his evidence to a further conclusion that cross-examination, if pursued, would have established his guilt. I do not know and cannot guess. Adverse inference cannot leap tall mountains nor cross swift streams without credible supporting evidence.
77That does not mean that I cannot make use of what little evidence he did give on cross-examination. Mr. Breese confirmed Mr. Hunter’s testimony albeit to a limited degree. He confirmed the basic elements of timing and duration of his relationship with Mr. Hunter and with Mr. Rose and Mr. Clarke. He confirmed that Mr. Hunter’s claim to having been to his apartment in Barrie with Mr. Rose and in Mr. Rose’s car might be true. I draw this one adverse inference from Mr. Breese’s short excursion to the witness stand: I find that his abrupt refusal to confirm the identity of Mr. Rose in the video clip taken from the parking lot of his Barrie apartment building on June 3, 2018 should be construed as confirmation of Mr. Hunter’s evidence that the individual in question was indeed Mr. Rose. That too corroborates some of Mr. Hunter’s identification evidence.
(iii) Direct identification evidence
78On October 10, 2019, Mr. Nathan Hunter pleaded guilty to participating in the May 24, 2018 robbery and testified on behalf of the Crown at this trial. He has yet to be sentenced. I shall first relate the substance of his evidence in relation to the charges before me before discussing the evidence that has been introduced with a view to impeaching his credibility.
Mr. Hunter’s evidence
79Mr. Hunter is twenty-two years of age. He moved schools frequently as a child and finally dropped out of high school in Grade 9. At that time he lived in a group home. He described a fractious relationship with his mother when he was younger, culminating in his being kicked out of the house by her when he was about eighteen. He was homeless and living on the street for about a year prior to the robbery. This does not mean that he had no access to any shelter or place to put his things at any time. His brother helped when he could but he could not live with him.
80Mr. Hunter had known Mr. Breese and then Mr. Rose for about four to six weeks prior to the robbery. He met Mr. Clarke through Mr. Rose shortly thereafter. He would not call any of the three his friends but did hang out with them from time to time in the period leading up to the robbery. He said he spent “hours at a time” with Mr. Rose and in particular in his car. That hanging out included at least one trip to Barrie in Mr. Rose’s car to see Mr. Breese in his apartment. The car he knew as Mr. Rose’s car was the same Honda Accord sedan seen in the bank security video and the security video from Mr. Breese’s apartment discussed earlier.
81In the days prior to the robbery, Mr. Rose and Mr. Breese talked frequently about doing a robbery with him. He said that they brought the idea up at least a dozen times over the few days before the robbery. He did not want to do it and told them so, but they persisted in asking.
82On the day of the robbery, Mr. Hunter said that his “mind wasn’t in a clear state”. He was homeless, hungry and his mom had “gotten [him] into a bad attitude” and the robbery “ended up happening”. I will consider the evidence regarding threats made to Mr. Hunter below.
83On the day of the robbery, he could not remember if he was picked up or if he was already with them. The group – consisting of Mr. Clarke, Mr. Rose and Mr. Breese - initially went to a mall with a Money Mart that they thought they might rob. This plan was dropped and they decided to go to a bank instead. He could not recall how they chose the particular TD Bank branch. They drove to the bank in the car and pulled into the parking lot and scouted it out, looking at the cameras and the layout. Then they reversed out of there and went to the parking lot of the neighboring business. There, Mr. Rose parked the car near the doors to the bank and the three of them: Mr. Breese, Mr. Clarke and himself – got out.
84He described how the three of them disguised themselves. Mr. Breese put a mask over his face. He and Mr. Clark put their hoods up and he put his sweater over his face. He said that Mr. Rose provided him with the hoodie that he wore. He said that he was still hesitant about going through with the robbery but Mr. Breese urged him on and he followed.
85They walked into the branch. He saw the people in line and had a moment’s hesitation. Then he heard the gun shot and went to the counter and demanded money. He did not see the gun fired but heard it. He did not know that Mr. Breese had the gun when they left the car but only noticed it when they were inside the bank. He remembered demanding money and he remembered receiving loose bills in small denominations.
86Mr. Hunter viewed and commented upon the bank surveillance video clips. He identified the Honda Accord they came in and he identified Mr. Breese as being the man in the dark hoodie seen in the clips. He identified himself as the taller man in the grey “The North Face” hoodie and Mr. Clark as being the third man in the Adidas brand hoodie. Mr. Rose was the man driving the car, not shown in the video.
87The three then left the bank and returned to the car. They drove a short distance down the road when Mr. Clarke had a dye pack blow on him that burned the side of his leg a little. The car filled with red smoke. He is not sure exactly where Mr. Rose drove them after that. They went down some back roads, parked near some tracks. They hopped some fences and eventually ended up at the house of a friend of Mr. Rose where a car came and picked them up. He was dropped off at a mall and thereafter stopped hanging out with that group entirely.
88Before parting ways, they divided up the money. He thought the total was about $500 and that he got perhaps $150 or $200 of this. He spent the money on some clothes. He did see Mr. Breese once on the street where they had a friendly chat for about ten minutes. He has neither phoned nor hung out with Mr. Rose or Mr. Clarke since.
Tests applicable to assessment of Mr. Hunter’s evidence
89Ms. DiGiovanni as Amicus did an admirable job of ensuring that I fully understood all of the risks associated with accepting Mr. Hunter’s identification evidence. There can be no doubt that Mr. Hunter’s evidence is the lynchpin of the Crown’s case. Absent his evidence – and my believing at least that part of it relating to the identification of Mr. Breese – the Crown case would not be viable.
90There is also no doubt that Mr. Hunter presents with at least some aspects of an unsavoury witness. I shall explore just how unsavoury he might be and what impact that assessment has below. He is at the very least an admitted participant in a robbery who has not yet been sentenced and the Crown’s recommendation as to sentence in his case certainly reflects a considerable degree of weight being lent to the mitigating circumstances of an early guilty plea and early co-operation with police.
91Amicus and the Crown both pointed me to the Court of Appeal decision in R. v. Pellletier, 2012 ONCA 566 as providing a useful summary of the law with respect to the receipt and use of the testimony of unsavoury witnesses. I concur. Amicus also directed me to certain of the conclusions of the Kaufman Commission arising from the wrongful conviction of Guy Paul Morin. Yesterday’s news of the identification of Christine Jessop’s killer is a timely reminder of the risks of wrongful conviction on the strength of unreliable testimony.
92There are definitely a number of flashing yellow lights present here that dictate that any trier of fact – jury or judge alone – must weigh and assess the evidence of Mr. Hunter with great care. The Crown’s case could not proceed without his evidence, his admitted role in the robbery and the relatively light sentence he expects to receive could provide significant motive to tailor evidence.
93The presence of flashing yellow lights is not however a stop sign nor a “do not enter” sign. It means proceed with caution. The case law suggests that particular emphasis be placed on the presence of objective or third-party evidence that corroborates the evidence of the unsavoury witness in some material way even if it does not directly involve the question of the guilt of the accused. However the absence of corroboration is no more a bar to the reception of such evidence than its presence could require its acceptance. It is a factor to be considered carefully.
94At the end of the day what is called for is a trier of fact armed with an adequate appreciation of the risks of convicting substantially on the word of a single witness whose credibility warrants close examination at the very least. I consider myself so armed.
Is Mr. Hunter an “unsavoury” witness?
95A portion of final argument was consumed by a debate about whether Mr. Hunter should be considered an “unsavoury” witness.
96I cannot agree with any suggestion that Mr. Hunter has led a lifetime so permeated with crime that he was fundamentally unworthy of belief before his foot even crossed the threshold of the court-room. Other than his conviction for this robbery, his record is a clean one. He did admit to spending some few days in jail after being detained on charges laid following a complaint by his mother relating to threats made, charges that his mother subsequently withdrew. Nothing in that suggests dishonesty. He admitted to being “known to police” as a result of a troubled youth and numerous fights with his mother, but there is no evidence that any formal proceedings arose out of any of that or that any of it involved dishonesty. There is not, in other words, a history of dishonesty to contend with.
97Ms. DiGiuseppe made a spirited attempt to bring Mr. Hunter to agree that he had performed a solo bank robbery only two days prior to the one he has admitted to. A similar attempt had been made at the preliminary inquiry. Mr. Hunter agreed that the surveillance photos of that disguised robber (only part of the face was visible) bore some resemblance to him (as indeed they do). However he denied vehemently that he was the robber on that occasion. He has not been charged with that other robbery and I have no evidence that police consider him a suspect in it or have refrained from charging him as part of a quid pro quo. Beyond a superficial resemblance, there is nothing in the evidence regarding that other robbery that causes me to doubt Mr. Hunter’s testimony before me. I attach no weight to that particular interchange at all.
98The foregoing being said, Mr. Hunter’s guilty plea in connection with this robbery – the same robbery that Mr. Breese is charged with committing – requires that Mr. Hunter’s evidence be approached with caution, but a caution that is informed by a full appreciation of the context. His motives, his credibility generally and specifically in relation to the events of this robbery are all matters that ought to be subjected to close examination with a view to determining if his testimony about the matters at issue in this case is to be believed in whole or in part or whether concerns related to his credibility give rise to a reasonable doubt about the guilt of Mr. Breese.
Was Mr. Hunter tainted by police?
99I have considered carefully the suggestion that Mr. Hunter simply agreed with suggestions made by police regarding the details of the robbery in a desire to please his interrogators and gain their support for a hoped-for sentence reduction and that his evidence must be viewed as tainted and subject to doubt or otherwise treated as unworthy of belief. In her skillful and thorough cross-examination, Ms. DiGiuseppe elicited clear admissions from Mr. Hunter that he did not first suggest to police the names or roles of any of the other three participants in the robbery when he was questioned by police but rather agreed with police when they told him the names and roles of each of them. The degree of leading evident on these important issues is certainly not to the highest standards of policing. To the contrary, it runs quite contrary to the recommendations of the Kaufman Commission and what ought to be best practices.
100At one point Amicus suggested to Mr. Hunter that “what happened for the vast majority of this statement is the police told you what they thought happened at the TD Bank and you said yep, yes, yeah. You can agree or disagree” to which re replied “Okay” and then “yes” when asked if he agreed.
101At first blush, that exchange would appear to offer solid support for the thesis advanced by Amicus. However, this is an instance where the experience of reading an arid transcript differs quite importantly from the living-colour experience of a live hearing. Some context will help explain this.
102First, it was perfectly plain to me throughout that Mr. Hunter’s reading skills are halting at best and that he has not read transcripts of either his prior police statement or his preliminary inquiry testimony. When cross-examined about details of these, he gave his best memory of what he recalled saying, warts and all. There were numerous instances where he could not remember details of those statements or had only a high level memory. For example, at trial he could not remember what he had done earlier in the day and precisely how it was that he came to be in the car heading to commit a robbery. Had he been with the others all day or had they just picked him up by arrangement? In his police statement he mentioned driving in from Barrie, a detail that he did not recall at trial. It was clear to me that his recollections of the content of his two earlier statements given at trial were very significantly un-refreshed and “as is, where is” raw product.
103Second, the exchange quoted above followed only a moment after he told Amicus that he could not agree to a nearly identical suggestion that “throughout the entire statement what happens is that police tell you things that they think about the bank robbery and you agree with them”. He not only disagreed with her suggestion, but he reminded her that it was he who volunteered to speak to police. He further rejected the next suggestion that he did so because he “wanted that sentence reduction”, a suggestion that was made to him repeatedly and rejected just as often.
104In this context, when I heard Mr. Hunter answer “yes” to the very next question which simply repeated in slightly different words the suggestion that he had rejected with reasons a moment earlier, his answer of “yes” came across to this trier of fact as an expression of youthful frustration at a repetitive question he had already answered. He might similarly have said “whatever” or “and your question is?” He did not withdraw his earlier answer, he simply agreed with her to get her to move on. That is how that exchange was perceived by me as it occurred in real time.
105None of this detracts from the fact that Mr. Hunter did agree that he did not initially volunteer the names of Mr. Rose, Mr. Clarke or Mr. Breese1 to police. There is however no evidence before me that the other details of the robbery that he provided to me at trial are similarly mirrored by direct leading suggestions made by police in that initial interview, an interview whose details Mr. Hunter clearly only remembered at a very high level at trial at all events and would have been in no position to repeat reliably if it were not based on actual memories as opposed to memorized lines. Further, this is not a case where there is any reason to believe that Mr. Hunter might have been mistaken as to the identity of any of the participants in the robbery, all of whom were very well familiar to him at that time.
106I was also asked to draw negative inferences from Mr. Hunter’s evident caginess in concurring with the identification of Mr. Clarke as the man I have described as “medium grey hoodie”. I shall discuss below the question of Mr. Hunter’s motives for coming forward which in his case, as in many others, will always be thoroughly mixed. What he did know before coming in to the police station was that police were looking for him and for Mr. Breese in connection with the robbery. He knew from “the street” that Mr. Rose had already been taken into custody and that Mr. Clark was also a suspect. He did not know how police had any of these names, but given the disguises worn by all, the existence of an informant would certainly be a likely working assumption if not an assumed fact. Further, he was fearful of all three men and gave his reasons for that fear. They had guns or access to guns while he did not. Mr. Breese for his part testified as to his own fear of Mr. Rose. In that context, it is not at all surprising to me that Mr. Hunter should have confessed his own role for the reasons he explained but to have wanted to satisfy himself that police already knew of the others – especially Mr. Rose and Mr. Clark where his information about their status with police came from the “street” and not the news.
107The fact of the matter is that Mr. Hunter provided very significant granular detail of the robbery to me. I shall revisit that question when I discuss corroborating evidence below.
108He had some details wrong in small ways – errors that confirm the relatively un-rehearsed and un-refreshed nature of the memory he brought to the stand. For example, he remembered Mr. Breese exiting the vehicle first and then telling the others to come on. The video clearly shows that the two men in grey hoodies emerged from the car a split second before the man identified as Mr. Breese.
109I cannot infer from the evidence that I have that all of these details were supplied to Mr. Hunter by police and are not the product of his independent recollection. I have only been provided specifics of a very limited number of occasions where Mr. Hunter agreed with suggestions made by his interrogators that he himself had not volunteered. On those occasions at least, his wariness appears logical to me. If he were only repeating to me memorized lines of police suggestions rather than actual memories of his own experience, he should have been tripped up time and time again in cross-examination at trial as his memory of those verbal exchanges was quite choppy and indicative of little recent preparation in any detail. I assume that he had access to transcripts of both prior statements – witnesses generally do - but my observations of this witness lead me to conclude that he did not or could not read them at all or if did read them, he read only a small amounts. He did not come across to me as someone reciting a memorized script – he was recounting lived memories, some vivid some vague, from two years in the past.
Did Mr. Hunter lie about his motive for participating in the robbery?
110Amicus urged very strongly upon me the idea that Mr. Hunter showed himself to be dishonest on the witness stand and cannot safely be believed. She highlighted during her thorough cross-examination a number of instances of what I would more readily describe as exaggerations than lies. For example, Mr. Hunter said that he was homeless and hungry on the day of the robbery while he boasted to police during his statement that he did not need money and was able to stay with his brother. He did not live with his brother at that time and was not allowed to given his brother’s own housing situation. None of this detracts from his state of homelessness – a state that does not imply entire absence of shelter every night as opposed to a fundamental precarity of housing arrangements. Did he exaggerate his state of hunger in court or exaggerate his self-reliance to police? The answer is not one that I find it material to pursue.
111She suggested that he lied when he denied participating in a different robbery, something that I have reviewed earlier in these reasons and will not repeat.
112The main instance that was suggested as a clear and deliberate lie has to do not with what Mr. Hunter said in his testimony at trial but what he did not say. At the preliminary inquiry and again at trial, Mr. Hunter made no mention of any threats being received in relation to his participation in the crime. In his initial statement to police however he mentioned a specific threat allegedly made by Mr. Breese to put a bullet in his face if he didn’t agree to participate in the robbery. He made no mention of that at trial until he was cross-examined.
113Mr. Hunter did not agree with the suggestion that he had lied at the preliminary inquiry when he failed to mention the threats that he received. He said, plausibly in my view, that the quoted passage referred to events that day in the car prior to the robbery and not what had happened in previous days. The threat he described to police in his initial statement happened, he said, on a different day.
114I remain entirely unconvinced that Mr. Hunter was lying when he failed to mention the threat. I was asked to conclude that in the context in which he described the threat to police, he was definitely talking about the day of the robbery. The passages read to me are by no means so clear-cut and the ebb and flow of a stream of a conversation of the sort that occurred does not admit of the same level of minute analysis as a clause in the Income Tax Act.
115There is plenty of evidence that Mr. Hunter had a level of fear in relation to Mr. Rose and Mr. Clarke as well as Mr. Breese. He had limited history with any of them and he described them all as having access to guns – something he most certainly did not have. Mr. Breese himself claimed duress and refused to make another statement as soon as he as asked to identify Mr. Rose in a video clip.
116I do not conclude that Mr. Hunter was intentionally dishonest in either of the two prior statements he gave or at trial. There were certainly occasions in all of them where he showed himself to be reluctant to volunteer more than he needed to, but intentional dishonesty on his part is not something I have found present in anything that has been presented to me.
Did Mr. Hunter have the opportunity to make the observations he made?
117Amicus suggested that Mr. Hunter had only a relatively few minutes exposure to three men he identified as his accomplices during the robbery. Mr. Breese made a similar suggestion in his closing argument.
118I do not agree with those suggestions. Mr. Hunter outlined the extent to which he had hung out with Mr. Breese, Mr. Rose and Mr. Clarke in the month or so preceding the robbery.
119In the case of Mr. Breese, he said that he purchased marijuana from Mr. Breese once or twice in Toronto and “slowly got introduced to him” by a friend. He first met him about a month prior to the robbery. Over the course of that month, he visited Mr. Breese at least once in Barrie and was inside his apartment where he spent twenty or thirty minutes. Mr. Clarke and Mr. Rose were also in the apartment and it was Mr. Clarke who drove him there. He also hung out with Mr. Breese and another friend in downtown Toronto.
120He described meeting Mr. Rose on the street once. He was known to him as “Shaq”. He recognized the White Honda car from the robbery in the surveillance clip played from the Barrie apartment building. In addition to the robbery and the trip to Barrie, he said that he had been in that car five or six times with Mr. Rose to pick people up or things like that. Each time, the car was driven by Mr. Rose as it was in the video clip from the apartment in Barrie. He said that he had spent the night in that car at least once just hanging out.
121Finally, he described meeting Mr. Clarke through Mr. Rose. He had less exposure to Mr. Clarke whom he met a week or two after Mr. Rose but also knew him from rap videos on YouTube.
122Mr. Hunter identified Mr. Clarke as being the one accompanying Mr. Breese in the elevator lobby in the video clips from the Barrie apartment and identified Mr. Rose as the driver of the Honda Accord in the circular driveway area when the image was blown up.
123I am fully satisfied that Mr. Hunter had significant enough exposure to each of Mr. Breese, Mr. Rose and Mr. Clarke that the prospect of innocent mis-identification of any of them by him given a clear look is non-existent.
Does Mr. Hunter have a motive to lie?
124Mr. Hunter was carefully questioned about his motives for coming forward. His answers in this regard were quite along the lines of what I would expect – he emphasized those motives that tend to cast him in a favourable light over those that might appear somewhat less so. Two things can be true at once. Mr. Hunter can – and indeed most certainly did – have reasons both noble and base for turning himself in and providing police with a prompt confession (albeit four months later).
125The objective facts that I find pertinent to this question are these:
a. Mr. Hunter decided to turn himself in to police on September 24, 2018 as soon as his mother advised him that police were looking for him and had put a reward out for him in connection with this robbery;
b. He already knew from “street” sources that Mr. Rose and Mr. Clarke had been apprehended or were wanted and he learned - whether from the news or from his mother – that Mr. Breese was also wanted for the same robbery as he was;
c. At the police station, there was a delay while police verified that he was in fact wanted;
d. He spoke to duty counsel once detained at the police station;
e. He immediately agreed to give a statement to police as soon as they asked him to and he confirmed his own participation in the robbery in the course of that statement;
f. There is no evidence of any discussion before he did so of anything like a “quid pro quo”;
g. He did not ask for special consideration in relation to bail and was surprised when the Crown consented to his release on terms the next morning in Show Cause court;
h. He testified at the preliminary inquiry where he was extensively cross-examined by Mr. Breese’s counsel and by counsel for the other co-accused (who are not now party to this trial);
i. He pleaded guilty on October 10, 2019 at which time there was no joint submission on sentencing, the Crown indicating that it would be asking for two years less a day while defence indicated it would seek a lower sentence of fifteen to eighteen months;
j. Sentencing was adjourned until January 2020 to permit a Gladue report to be prepared;
k. Aboriginal Legal Services asked for and received a short delay to complete their work and the matter was adjourned to April, 2020, a hearing that was of course suspended due to the Covid emergency; and
l. Mr. Hunter is currently scheduled to be sentenced next month being the first date available when the matter was rescheduled after Covid restrictions were lifted in the Ontario Court of Justice.
126There are subjective factors that must also go into the mix. These include the following findings:
a. Mr. Hunter admitted that he knew he was caught when he heard police were looking for him even if he felt he could evade police for several months;
b. Mr. Hunter had no information as to how police learned of his involvement but decided not to fight it;
c. The birth of Mr. Hunter’s daughter in the intervening four months had changed his perspective – he very much wanted to put his past behind him; and
d. Mr. Hunter and almost anyone else certainly knew that a court would likely be more lenient in sentencing someone who has pleaded guilty and cooperated compared to someone who has not.
127I have no doubt that Mr. Hunter told the truth when he described his motives. His desire to turn the page and take whatever medicine was coming his way was certainly present. His assumption that there was little point in forestalling the inevitable was also present. It is quite logical that he should have felt less inhibition about revealing the role of others in the robbery when it was clear that somebody had told police about his own role. Finally, he would have been foolish not to be aware that consideration in sentencing might follow from early and full-throated cooperation. None of this suggests a motive to fabricate. Indeed fabrication of evidence would carry with it its own set of problems including the risk of squandering the benefit of whatever consideration he had earned were the lie to be found out, something that he could not control.
128I can give no credit to the idea that sentencing has somehow been held out as a hammer to ensure the “correct” behaviour at trial. Mr. Hunter set this train down the tracks on September 24, 2018 when he confessed to police. Neither he nor police nor Crown had any way of knowing then the series of circumstances that would see the sentencing still outstanding today. There is no basis to suggest that this trial was deliberately scheduled to be completed prior to Mr. Hunter’s sentencing – the two were on separate tracks.
Confirmation or corroboration of Mr. Hunter’s evidence
129Material elements of Mr. Hunter’s testimony have been corroborated by independent sources and this corroboration does add a degree of support for the credibility of Mr. Hunter’s testimony as to identification:
a. His evidence of knowing Mr. Breese, Mr. Rose and Mr. Clarke and the general duration of their relationship was confirmed by Mr. Breese in the limited cross-examination which did occur as was his identification of Mr. Rose and Mr. Breese on the video clips from Barrie and his evidence of driving to Barrie to see Mr. Breese with Mr. Rose in Mr. Rose’s car on a different occasion (in this latter case, Mr. Breese admitted that it was possible);
b. His evidence regarding scouting out of the immediate area around the branch before committing the robbery is borne out by the video evidence;
c. His evidence of the amount of money he got from the robbery is consistent with Mr. Ferracuti’s evidence of what was stolen (broadly, given the approximations given by both); and
d. His evidence of the exploding dye-pack in Mr. Clarke’s pocket was borne out by the video surveillance clips and the forensic evidence.
130All of the above evidence is confirmatory of the evidence given by Mr. Hunter. While it does not directly confirm his identification of Mr. Breese as “dark hoodie” in the surveillance video, it does establish independently his claim to both know and be able to recognize readily Mr. Breese, Mr. Clarke and Mr. Rose – the very individuals Mr. Hunter has said participated with him in the robbery. Corroboration of the testimony of a potentially untrustworthy witness is always helpful but is not a condition precedent to giving credit to such testimony. In this case, the corroborating evidence lends weight to Mr. Hunter’s evidence.
Conclusions regarding evidence of Mr. Hunter
131No witness appears in a single dimension. They must be understood to bring with them to the stand the complex maze of competing motives both noble and base, frail memories, imperfect perceptions, and conscious or unconscious bias that bedevils the human condition at the best of times. Among the elements of unconscious bias that afflicts many witnesses is a desire to view themselves in a favourable light - a light that becomes ever brighter even as the passage of time dims the vivid memory of an occasion or event. I have no doubt that all of this is as true of Mr. Hunter as it is of many others.
132Nevertheless, I am convinced that the core of Mr. Hunter’s testimony regarding the events of the robbery itself represented his best effort at a sincere account of what happened. This was my impression throughout his testimony in chief and it was not shaken during cross-examination. I have given careful consideration to the submissions of Mr. Breese and to the very detailed submissions of Amicus to review those initial impressions. That review did not alter my conclusions.
133Mr. Hunter’s manner on the witness stand was always respectful, never descending to hostility or confrontation despite a very aggressive and thorough cross-examination. He always tried to be responsive. He readily admitted areas where his memory was frail. He did not seek to make excuses for his behaviour but fully accepted responsibility, a conclusion that is not altered by his natural instinct to bring to the fore factors such as his homelessness that might mitigate but not excuse his behaviour. Material elements of his evidence have been independently confirmed, including by Mr. Breese in his limited testimony. He has taken responsibility for his actions and, trite as it may sound, he has turned his life around. He has not gotten into trouble in two years, he has stayed with his mother and is working a regular job in the construction trades. He has his handicaps – limited education, an erratic history with his mother and periods of homelessness. However, he is not a career criminal and swiftly and without hesitation accepted responsibility for his actions, even if he did wait until he knew police were looking for him. He has no history of lying. While leading questions from police is far from best practices when taking a statement, I do not find that Mr. Hunter was suggestible to the point of accepting suggestions that he knew to be untrue or even knew nothing about. I found him to be sincere.
134There is no risk here of an honest but mistaken identification of Mr. Breese by Mr. Hunter. Mr. Hunter knew each of the men in the car on sight, including Mr. Breese. He had spent significant time with them over the preceding weeks, including at least one trip to Barrie to Mr. Breese’s apartment where he was driven by Mr. Rose. Mr. Breese applied pressure on him to participate in the robbery over at least three days beforehand. He was not mistaken about who Mr. Breese was. He knew him and could readily recognize him. His identification of Mr. Breese as “dark hoodie” in the surveillance video was a sincere, truthful statement of his actual memory. It was not a planted suggestion that he acquiesced in.
135If I am left in any reasonable doubt as to the reliability of the identification of Mr. Breese by Mr. Hunter, Mr. Breese is entitled to the benefit of that doubt. My level of confidence in Mr. Hunter’s credibility and reliability as to the key question of identification must rise to that high standard. It does.
136I find that the man I have identified thus far as “dark hoodie” who robbed the bank that day was indeed the accused Mr. Breese.
(c) Did Mr. Breese possess a loaded firearm while inside the above-mentioned TD Bank branch on that day?
137I have already addressed all of the necessary elements of the offence of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code in the preceding two sections. In those sections I have concluded that Mr. Breese entered the bank branch with a handgun in his pocket, that he proceeded to remove it from his pocket and hold it in his right hand for the rest of the time he was inside the branch. I have concluded that the pistol the surveillance videos depict was in fact an operating firearm in that it was able to be and was used to fire a bullet. I have found that the gun was loaded with at least one cartridge immediately prior to firing the single shot discussed.
138The Crown has also proved through properly-given business record notices that Mr. Breese was not the holder of an authorization or license permitting the possession of a firearm at that place nor did he possess a registration certificate for that or any other firearm on that day.
139Each of the essential elements of this offence having been proved beyond a reasonable doubt, I find Mr. Breese guilty as charged under Count 2 of possessing a loaded firearm contrary to s. 95(1) of the Criminal Code.
(d) Did Mr. Breese intentionally discharge a firearm reckless as to the life or safety of another at that time and place contrary to s. 244.2(1) of the Criminal Code?
140The findings I have made in the preceding sections establish all of the essential elements of the offence of reckless discharge of a firearm pursuant to s. 244.2(1) of the Criminal Code apart from the reckless nature of the action.
141In the preceding sections I have detailed my reasons for concluding beyond a reasonable doubt that:
a. Mr. Breese possessed a loaded firearm inside the TD Bank branch on May 24, 2018;
b. Mr. Breese discharged that firearm inside the branch; and
c. The discharge of the firearm by Mr. Breese was an intentional act and not the product of accident.
142In addition to those three essential elements, the Crown must prove beyond a reasonable doubt that the when Mr. Breese discharged the firearm he was “reckless as to the life or safety of another person”.
143There can be no question that the circumstances in which the gun was intentionally discharged by Mr. Breese indicate a high degree of recklessness as to the life and safety of the ten or more people present in his immediate vicinity when he did so. I consider that this conclusion flows from the following circumstances in particular that I find were present here:
a. The gun was discharged indoors in an enclosed space;
b. There were more than ten people in the immediate vicinity;
c. A fragment – whether of the bullet or of the tile floor impacted by it – struck Mr. Collins on the side of the head, fortunately producing no injury;
d. Even though pointed down and away from the people present, the gun was fired at a hard surface and on an angle such that it was reasonably foreseeable that dangerous splinters or fragments of the floor tile could be sent in all directions at high speed to say nothing of ricochets of the bullet or fragments of the bullet; and
e. The gun was deliberately fired by him to facilitate a robbery in progress by intimidating those nearby.
144In all of these circumstances, Mr. Breese cannot fail to have been aware of the risks that his actions would pose to those around him. He decided to persist in this course of action in order to facilitate the commission of another crime – robbery – and to do so despite the risks that he must have been aware his conduct posed to those around him. In the words of McIntyre J. in Sansregret v. The Queen, 1985 CanLII 79 (SCC), 18 C.C.C. (3d) 223 (S.C.C.) “it is the conduct of one who sees the risk and who takes a chance” (at p. 233).
145Mr. Breese pointed to the absence of forensic evidence at trial regarding the bullet or damage to the floor. There is no evidence before me that police located the bullet or bullet fragments. I do not find that the lack of forensic evidence on these facts raises a reasonable doubt regarding the fact of the gun having been fired or what flowed from that shot or was reasonably foreseeable as a result.
146I find Mr. Breese guilty as charged of Count 3 of the indictment, reckless discharge of a firearm contrary to s. 244.2(1) of the Criminal Code.
Disposition
147Mr. Breese, I have found you guilty as charged under Court 1 (armed robbery); Count 2 (possession of a loaded firearm) and Count 3 (reckless discharge of a firearm). A time shall now be set to hear submissions as to sentencing.
S.F. Dunphy J.
Date: October 16, 2020
1 It is to be noted that Mr. Hunter clarified where he knew only the “street names” of some of these individuals in September 2018 but subsequently learned their actual names.
