COURT FILE NO.: CR-18-0059-00

DATE: 2020-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Delaney for the Crown

• and -

MYLES EVAN BRIAN WABANO

B. Sacevich for the Accused

HEARD: October 21-25, 2019 at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Reasons For Judgment

Note: These reasons were delivered orally on January 28, 2020.

OVERVIEW:

1On March 13, 2018 Liana Millar (“Millar”) and Carol Seaton (“Seaton”) buried Millar’s father, who was also Seaton’s spouse. They had trouble sleeping and decided to go to a Tim Horton’s for coffee. Just before 1:00 a.m. on March 14, 2018 they were sitting in Millar’s vehicle drinking their coffee, when the car door was suddenly opened. Millar was then stabbed in the arm, and the assailant demanded her purse. She quickly gave him her purse, and he began to take off on foot. Seaton then chased the assailant and was threatened with a liquor bottle. She ultimately tackled the assailant to the ground and grabbed back the purse. She also grabbed a computer tablet from him and threw it to the ground. The assailant retrieved his tablet and ran away. Millar was treated for her injuries, which fortunately were not severe.

2The Crown alleges that the accused, Myles Evan Brian Wabano (“Wabano”) was the assailant. At the commencement of the trial Wabano stood charged with the following:

Count #1: Uttering a threat to cause death to Seaton contrary to s. 264(1)(a) of the Criminal Code;

Count #2: Stealing Millar’s purse and wounding her contrary to s. 343(b) of the Criminal Code [note that the indictment states s. 344(1)(b) – counsel consented to amend the indictment post-trial]; and

Count #3: Assault with a weapon, namely a bottle as against Seaton contrary to s. 267(a) of the Criminal Code.

3At the conclusion of the trial the Crown acknowledged that there was insufficient evidence to support the uttering threats charge and invited an acquittal. The Crown argues that there is overwhelming circumstantial evidence that proves beyond a reasonable doubt that it was Wabano who committed the robbery and assaults.

4Wabano denies that he committed these crimes. He suggests that it was an acquaintance of his, John Moonias (“Moonias”). Moonias had originally been arrested for the robbery and assault but was released upon providing Facebook Messenger posts authored by Wabano suggesting that he was the perpetrator.

5This is an identity case. The question for me to decide is whether the Crown has proven beyond a reasonable doubt that it was in fact Wabano who committed the robbery and assaults against Millar and Seaton.

THE EVIDENCE:

6Various police officers, a forensic science expert, Moonias, Millar and Seaton all testified. Wabano did not testify.

Moonias:

7Moonias testified that on the night of March 13, 2018 he was at a local mall with friends when they received a message from Wabano in a group chat asking to meet him at the Landmark Hotel. Moonias and his friends were all under the legal drinking age but Wabano was not. Wabano told them he had liquor.

8Moonias did not know Wabano well before that night; they shared mutual friends, participated in the same group chat and had met approximately one month before that.

9When the group all met up, Wabano shared a quarter bottle of Wiser’s with them. When that was finished, Wabano left briefly and returned with a 750ml bottle of Silent Sam vodka. The vodka was passed around the group. Eventually, they all decided to go to Wabano’s room at the Super 8 Motel, except for one individual who was so intoxicated they had to have an ambulance called to attend to them.

10Most of the group got on the city bus and went their separate ways. For reasons not known to me, they did not end up at the Super 8. Wabano, Moonias and another friend, “Farrah”, chose to walk.

11According to Moonias it was very cold on the night in issue. The three stopped at the McDonald’s restaurant on Red River Road to warm up. At this point, Moonias and Wabano took a “selfie” in the McDonald’s bathroom. That selfie shows Wabano wearing a black hooded jacket, a black t-shirt with a white “Puma” brand logo on the front, dark coloured pants, and a dark coloured toque. Moonias was wearing a black baseball cap, a black “DC” brand sweatshirt he had borrowed from Wabano, a light grey hooded sweatshirt underneath and light khaki pants.

12After McDonalds, Wabano and Moonias continued the long walk to the Super 8. Moonias acknowledges that he was drunk during the walk, and that part of the way he “blacked out” and does not remember anything until he came to on a different street.

13Moonias describes being scared and frightened by Wabano when he came out of his blackout. He states that Wabano was drunk, being aggressive and swearing. Wabano was angry and talking about robbing a “Macs” convenience store. Wabano pulled out a knife to show Moonias. Wabano was acting in such a manner that Moonias became afraid Wabano may use it on him.

14At this point Moonias decided not to continue with Wabano to the Super 8, but rather walk to his grandmother’s house. He estimates he left Wabano at approximately 12:25 a.m. on March 14. He believes that Wabano still had the partially drunk bottle of vodka with him.

15Moonias testified that when he arrived at his grandmother’s home, he had an argument with his father. Moonias contacted the police, who told him to “sleep it off”. He left the home and started walking on Ray Boulevard towards a friend’s home, but still intoxicated, he walked into the wrong house. The homeowners contacted the police. They took Moonias to the hospital to attend to injuries to his head. Moonias states he hit his head on the corner of the wall during the argument with his father.

16Surveillance footage at the hospital shows Moonias being escorted in at 1:52 a.m. on March 14 by two police officers. At the time, he was wearing the same light khaki pants he was wearing earlier that night and a light grey hooded sweatshirt. Moonias states that he received stitches for his head injuries and was driven to his sister’s home by police.

17The next day he read about the robbery in an online news story. Moonias states that Wabano then messaged him in the group chat bragging about it. The conversation will be set out in greater detail below.

18At some point it came to Moonias’ attention that the police were looking for him in connection with the robbery. He turned himself in to police. He was charged with the crimes. His family members subsequently provided police with screenshots of excerpts of the group chat in which Wabano states that he committed the robbery. Moonias was then released and provided a video-taped statement to police.

Millar:

19Millar testified that she was sitting in her vehicle with Seaton, in the parking lot of the Tim Horton’s at 310 Memorial Avenue, Thunder Bay, drinking coffee and talking. It was just before 1:00 a.m. The store itself was closed, and only the drive-thru was open.

20Millar was turned away from her driver’s side window and was facing Seaton. The door opened, she saw someone with a knife, and he stabbed her in the arm. He was acting in an erratic manner, he was drooling, his speech was slurred, and he was saying over and over “what have you got?” Millar held up her purse and yelled “take it”. He took the purse but just stood there and did not move for a moment. Millar’s impression was that he was “high”, “confused” and “stunned”. She testified that it was as if he had just woken up from a “trans-like state”.

21At this point Seaton got out of the vehicle to help. She went after Millar’s assailant and was struggling with him to recover the purse. Millar went to help and to try to take the knife so that Seaton did not get hurt.

22Millar states that everything happened very quickly. To the best of her recollection, the assailant, Millar and Seaton all ended up on the sidewalk in front of the parking lot. There was an altercation where they all slipped and fell to the ground as the struggle ensued. She recalls they fell forward and that she partially landed on the assailant. Millar held him down by the back of his neck and was pushing his face into the snow. She believes he would have had marks on his face from the altercation but could not be certain. She took the knife off him and at some point, Seaton recovered the purse. Millar then felt some pain in her knee and let him go.

23The assailant got up and Seaton tried to stop him from fleeing when he pulled out a vodka bottle and started to swing it at her. Millar noticed that Seaton had a tablet in her hand, which she subsequently dropped. Millar suddenly noticed pain and a wet sensation in her arm and called out to Seaton that she was hurt. Seaton turned her attention from the assailant and to Millar. The assailant ran away, dropping the bottle of vodka.

24Millar described the assailant as having dark skin, slim, dark hair and wearing a dark winter jacket and dark coloured pants. At trial she did not recall him having a hat on. She identified him from the witness stand as being Wabano. She was adamant that she saw his face clearly on the night in question. She acknowledged having seen a Facebook post within a few weeks of the event with a picture of Wabano as having been the individual charged. She had never been shown a photo line-up and based on her evidence it would be fair to say she had not seen a picture of Moonias.

Seaton:

25Seaton also describes the sequence of events as happening very quickly, such that at times she was confused as to what was happening. The sequence of events was not always clear from her evidence. She acknowledged that having buried her spouse earlier that day, she was not in a good frame of mind on the night in question.

26She recalls seeing someone open the driver’s side vehicle door. For a brief time, she was confused, did not initially get a good look at the individual; she thought it may have been Millar’s son. She then saw him appear to hit Millar in the direction of her arm. The individual then reached in the vehicle to grab Millar’s purse. He ran to the front of the vehicle towards the sidewalk and she quickly got out and went after him.

27She recalls Millar’s assailant swinging a bottle at her. She thinks it was a vodka bottle. He was shouting something to the effect of “I’m going to kill you”, but she did not take the threat as serious; she believed he was just trying to get her away from him. He then threw the bottle and began running with the purse. The bottle did not hit Seaton. Seaton could not identify the bottle at trial.

28She continued to chase him for the purse. She noticed an “Ipad” in his hands, along with the purse. At some point she grabbed the purse and she and the assailant fell forward, with him his stomach. Once they were on the ground, she took back the purse and grabbed the Ipad, uncertain as to whether it was in fact Millar’s. When Millar said it was not, Seaton took it and smashed it on the sidewalk and then handed it back to the assailant. He then began running in the direction of Intercity Shopping Centre, which is also the direction of the Super 8.

29She described the assailant as indigenous with pale skin, approximately 18-19 years old, wearing dark pants, a dark jacket, a black toque and looking “out of it”. Even though it was dark, she confirmed that there were streetlights. Once they had all fallen to the ground, she was only inches away from the assailant’s face and could see it very clearly. She also subsequently saw a Facebook article with Wabano’s picture, identifying him as the possible assailant, and recalls thinking “this is the guy”. She testified that she has an excellent memory for faces, and she identified Wabano as the assailant at the trial.

Police and Surveillance Evidence:

30At 8:24 p.m. on March 13, 2018 Wabano was seen on hotel video surveillance entering the Super 8 Motel with a computer tablet in his hands. He checked in to the hotel, and then subsequently left at 8:48 p.m. carrying the tablet.

31The Super 8 surveillance also shows Wabano returning to the hotel at 1:08 a.m. with the same tablet in his hand. From the surveillance there are no obvious marks on Wabano’s face, although the video is not clear. He is wearing the same clothing as he wore in the McDonald’s selfie.

32Photographs of Wabano taken when he was arrested on March 21, 2018 show scrapes to his nose and his forehead.

33Video surveillance was also gathered by the police from businesses around the Tim Horton’s store. It shows one individual entering on to Memorial Avenue by foot, wearing dark clothing, approximately 10 minutes prior to the time of the incident. The face of the individual is not clear. The individual does not appear to be staggering or otherwise show signs of intoxication.

34The Tim Horton’s video surveillance itself does not extend to the parking lot. Only the inside of the store to the windows can be seen. The video shows an individual lurking around the store and looking inside the windows at approximately 12:54 a.m., only minutes before the attack on Millar. The individual’s face cannot be seen. The images are blurred. The individual appears to be wearing a toque and a black top with a white logo. While the logo is not fully visible, it appears very similar to the white Puma logo on the shirt that Wabano was wearing.

EVIDENTIARY ISSUES:

35There were two evidentiary issues that arose and were decided during the trial in a blended voir dire. Brief oral reasons were provided at trial. I indicated I would provide more fulsome written reasons for those issues. They are:

a) the voluntariness and admissibility of the video statement of the accused, given to police while in custody on March 22, 2018; and

b) the authenticity of Facebook Messenger Group Chat excerpts for the purpose of s. 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-85 (“CEA”), and overall admissibility of those electronic documents.

Factual Background and Context:

36Moonias, through his aunt, provided police with excerpts from a group chat by the name of “Vagtastic Voyage”. Moonias acknowledges that he altered these messages by deleting any reference to other members of the group, to protect their privacy. He left only that part of the conversation that purports to be between himself and Wabano.

37The excerpts sought to be admitted into evidence start on Wednesday March 14, 2018 at 3:05 p.m. and are in reference to a media release from the police and news article with respect to the Tim Horton’s robbery and stabbing.

38The excerpts start with comments from an account by the name of “FuckboiiWabbz”. The photograph attached to that account is of a young male similar looking to Wabano, but his hand is over his face and therefore it cannot be said for certain that the photograph is Wabano.

39Part way through the conversation the name of the sender of the messages, changes to “Myles”. Moonias testified that you can either identify the nickname or the real name of the participant to the group chat through the click of a button in the account. He further testified that “FuckboiiWabbz” was the nickname used by Wabano for his account. An excerpt from the group chat participant list was attached to the chat showing that the name of the account holder for “FuckboiiWabbz” is Myles Evan Brian Wabano.

40The conversation, written exactly as it appears in the excerpts is as follows:

FuckboiiWabbz: LOL sorry bruhh..get to dangerous when I’m blacked out

Moonias: what the fuck happened I remember talking you out of robbing a store Oh fuck

FuckboiiWabbz: LOL I actually robbed two women last night Near Tim’s Crazy shiy Myles didn’t stab noone and it wasn’t in a car it was in a sidewalk on a sidewalk** plus it was 2 woman…it says only one woman wtf? yea doe It’s g bruhh LOL Plus I made it…wasn’’t a failed robbery.. never again to buzzed man shit I’m out tired of standing too

41Wabano was arrested on March 21, 2018 and then gave a video interview to police on March 22, 2018. He was asked about the Facebook group chat in the interview, along with the robbery. Inculpatory and exculpatory statements were made by Wabano during the interview. Wabano acknowledged his username of Myles Evan Brian Wabano, having participated in the group chat conversations, and having sent the messages. He denies that the excerpt before the court represents the entire conversation. He also vacillates between denying any knowledge of the robbery, and statements such as “…maybe I was part of it. I don’t know”. Wabano acknowledges not recalling all of the events of March 13 and 14, and at times during that night, being in a blackout state.

Voluntariness and the Police Video Interview:

42The Crown seeks to admit into evidence the video interview of the accused. For the out of court statement made by the accused during that interview, to a person in authority, to be admissible the Crown must prove beyond a reasonable doubt that the statements were made voluntarily.

43In determining the voluntariness of a statement made by an accused to a person in authority, all the circumstances surrounding the making of the statement must be considered. These may include but are not limited to whether any threats or promises were made to induce the statement, whether there is any evidence of oppressive circumstances, any police trickery employed in adducing the statement and the operating mind requirement. See: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.) at paras. 68-71.

44The Crown argued that it has discharged the burden imposed on it to prove beyond a reasonable doubt that the interview, and the statements made during it, was voluntary. Specifically, the Crown points to the following:

a) There were no oppressive circumstances at play. The interview was conducted in a calm, respectful and non-threatening manner. The officer displayed an even voice, was not loud or challenging. The interview was not lengthy and there was no deprivation of food, water or other necessities.

b) There were no threats made or inducements offered in return for cooperation. While the officer did state he was trying to help the accused out, this in of itself is insufficient to raise a concern that the will of the accused had been overborne.

c) There is no evidence before the court to suggest that the accused did not have an operating mind. He clearly understood. He answered questions and his responses were coherent. There is no indication that he did not understand what was happening to him.

45The Defence took the position that the circumstances surrounding the making of the statement do not render it voluntary. Specifically, the accused was interviewed the day after he was arrested. While he had been cautioned appropriately upon arrest, and had also exercised his right to counsel, he was not cautioned again prior to the commencement of the interview as to his right to silence. He was not informed that the interview could be used at trial as evidence against him. The Defence argues that while there was no Charter breach, the lack of a caution at the interview does affect the voluntariness of the interview. For the accused to have made an informed decision as to whether to speak to the police or not, he should have been given a caution at the outset of the interview.

46I concurred with the Crown and ruled the interview voluntary and therefore, admissible. Upon reviewing the tape of the interview and hearing the evidence of the officer who conducted it, I was satisfied that there were no oppressive circumstances at play, there were no threats or inducements offered and no police trickery employed such that the will of the accused was overborne. I noted that the questions asked were short and clear. The officer was seated during the interview, wore civilian clothing, spoke in plain language and did not use threatening body language or gestures. While the accused mentioned a couple of times that he wanted to be finished and that he wanted an Advil, there was no pressure exerted by the officer to answer further questions and no indication that the accused had any specific medical issues that required attention.

47With respect to the concern identified by the Defence, it is acknowledged that an accused must understand what is at stake before he makes the decision to speak to police. He must be aware of his jeopardy. This has a direct impact on the voluntariness of the statement.

48Despite the accused not being cautioned at the outset of the interview as to his right to remain silent and the possible use of the video interview, I am satisfied that he was fully aware of the extent of his jeopardy at the time he gave the interview. Mr. Wabano had already been arrested and cautioned. He was aware that he was being charged and what those charges were. The officer repeated the charges at the outset of the interview. His charges had not changed from when he was cautioned the day before. He spoke with his counsel of choice the previous evening for approximately 15 minutes.

49I also note that the interviewing officer indicated during the interview, on at least one occasion, that the accused was not required to answer his questions. While this was not in the form of a specific caution, I am satisfied that the lack of formal caution at the outset of this interview did not vitiate consent and that the statements made were voluntary.

Admissibility of Facebook Messages:

50The Crown argues that the Facebook messenger excerpts are admissible evidence, and should be admitted for the truth of their contents for the following reasons:

a) There is sufficient evidence for this court to conclude that they have been authenticated;

b) The evidence of Moonias and Wabano is sufficient to conclude on a balance of probabilities that Wabano was the author; and

c) As admissions against interest by an accused, the statements fall within an exception to the hearsay rule.

51The Defence opposes the admissibility of the Facebook excerpts. The Defence disputes that the records meet the best evidence requirement for admissibility. The Defence takes issue with Moonias’ acknowledgement that he altered the original group chat conversation. Moonias acknowledged having deleted information pertaining to other members of the chat, and to having changed his settings to remove the nickname “FuckboiiWabbz” and reveal the name “Myles”. The Defence argues that these modifications to the electronic communication render the evidence unreliable.

Legal Framework and Analysis:

52Printouts and screenshots of Facebook messages have been found to be electronic documents within the meaning of s. 31.1 of the CEA. See: R. v. Durocher, 2019 SKCA 97 at para. 80.

53Section 31.1 of the CEA imposes a burden on the Crown to prove the authenticity of the Facebook messages it seeks to have admitted as evidence by adducing evidence capable of supporting a finding that the electronic document is that which it is purported to be.

54Authentication is not an onerous requirement and may be established by either direct or circumstantial evidence. See: R. v. C.B., 2019 ONCA 392, [2019] O.J. No. 2424 (ONCA) at paras. 57, 66 and 68.

55Authenticity and authorship are two separate issues. Establishing the authenticity of a document does not necessarily prove authorship. However, demonstrating authorship is often sufficient to establish authenticity. See: R. v. Durocher, at para. 85.

56Authenticity is the first test to be satisfied under the provisions of the CEA; the best evidence rule is the second. See: R. v. Durocher, at para. 86.

Authenticity:

57In the case at bar the document is purported to be screenshots of an excerpt from a social media group chat conversation as between Moonias and Wabano.

58Moonias and Wabano were both members of the same group chat. Moonias testified that it was he who took the screenshots of the Facebook conversation. Included with the screenshots is part of the group chat page that lists the participants.The name of the account of “FuckboiiWabbz” is also showing as belonging to “Myles Evan Brian Wabano”. In his police interview, Wabano acknowledged that his username for Facebook Messenger was Myles Evan Brian Wabano. When asked about nicknames, Wabano did not admit that “FuckboiiWabbz” was his nickname, but rather claimed it to be “Playboy Wabbz”.

59Moonias testified that it was by communication through this group chat forum that he had met Wabano at a shopping centre approximately one month before, and that he came to meet up with Wabano on March 13, 2018. He recognized his picture, that was attached to the account of “Myles Evan Brian Wabano” and “FuckboiiWabbz”, although I acknowledge that the face is obscured by a hand. Moonias’ belief that Myles Wabano was “FuckboiiWabbz” was not undermined in cross-examination.

60I am satisfied that the Crown has met the onus of establishing authenticity for the purpose of threshold admissibility.

Authorship:

61This conclusion is further strengthened with the evidence as to authorship.

62With respect to authorship, the Crown merely needs to establish on a balance of probabilities that the accused was the author of the messages. See: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653 at para. 32. and R. v. Durocher, at para. 46.

63In the absence of evidence that gives an air of reality to a claim that this may not be so, as opposed to mere speculation, it is reasonable to infer that the sender has authored a message sent from his account. See: R. v. C.B., at para. 72.

64I find that the Crown has satisfied the onus placed on it with respect to authorship. The messages were sent from the account of “FuckboiiWabbz”/Myles Evan Brian Wabano. Not only did the accused acknowledge in his police interview that his username was “Myles Evan Brian Wabano”, he also acknowledged having sent the messages. The fact that he takes issue with the excerpts not representing the complete chat that happened that day does not detract from his authorship of the messages that are being admitted; this is an issue that will go to weight. Given his admission of having sent the message, his statement to the police that his family members had access to his account does not change my conclusions with respect to authorship.

Best Evidence:

65The Defence argues that in light of Moonias’ admission that he altered the group chat conversation by:

a) Deleting the messages of other members of the group; and

b) Changing the username view from nickname (“FuckboiiWabbz”) to the account holder (“Myles”),

the messages do not satisfy the best evidence requirements for admissibility of electronic documents under the CEA or otherwise.

66The CEA deems an electronic record to have met the best evidence rule if there is proof of the integrity of the electronic documents system by which the document was recorded or stored. The focus is on the integrity of the system and not the document. See: R. v. Hamdan, 2017 BCSC 676 at para. 77.

67There was no evidence proffered by the Crown with respect to the integrity of the electronic documents system. The Crown cannot, therefore, rely on the statutory presumptions under the CEA. This, however, does not render the document inadmissible. Resort may be had to common-law principles with respect to best evidence. See: R. v. Hamdan, at paras. 75 and 81.

68The best evidence rule has been relaxed. A secondary, as opposed to original document is permissible even where that document may be incomplete or inaccurate. In other words, the electronic document need not be identical to the original digital file. Concerns as to completeness and integrity are often a question of weight. See: R. v. Durocher, para. 84 and R. v. Hamdan, at paras. 49, 51 and 82.

69The evidence of Moonias is that he no longer has access to the group chat from which the excerpts were taken. After having originally been arrested for the robbery, his family encouraged him to distance himself from the group and delete the chat. He did so. Therefore, even though the electronic documents may not be the same as they were at the time of capture, before editing, they do represent the best evidence available at the time of trial of Wabano’s conversation with Moonias the day after the robbery.

Hearsay:

70The Crown acknowledged that the statements contained in the group chat excerpts are hearsay statements.

71Satisfaction by the Crown of the CEA requirements for admissibility does not, in of itself, allow for the admission of hearsay evidence. Hearsay evidence is presumptively inadmissible unless it falls within an exception to the hearsay rule or is shown to meet the criteria of “necessity and reliability”. See: R. v. Durocher, at paras. 57 and 81.

72The Crown sought to admit the Facebook group chat excerpts as an exception to the hearsay rule on the basis that they are admissions against interest, not to a person in authority, by an accused. I agree. The group chat excerpts were accordingly admitted into evidence.

ANALYSIS AND THE LAW:

The Presumption of Innocence and Proof Beyond a Reasonable Doubt

73The Accused is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty. This standard of proof is very stringent.

74In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At para. 39 of Lifchus, the court directed that even if one believes an accused is probably or likely guilty this is insufficient to establish guilt beyond a reasonable doubt and the accused must be acquitted. I cannot convict the Accused unless, based on the evidence before the court, I am sure that he committed the offence.

75There is no dispute as to whether the Crown has proven the elements of the offences under ss. 267(a) and s. 343 (b). There is no question that Liana Miller was robbed of her purse and wounded in the course of that robbery or that Carol Seaton was threatened with a bottle. Both crimes were committed by the same individual. As indicated at the outset, the identity of the assailant is the sole issue.

Position of the Defence:

76The Defence argues that:

a) There is sufficient evidence to show that Moonias was the perpetrator of the offences with which Wabano was charged; or

b) Alternatively, if I do not accept that Moonias committed the offences with which Wabano is charged, the evidence still raises a reasonable doubt that it was Wabano who committed those offences.

77In support of these positions, the Defence further argues:

a) This is a circumstantial case. The evidence is, at the very least, equally consistent with Moonias having committed the robbery and assaults. The presumption of innocence requires that when there are competing inferences, as there are here, they should inure to the benefit of the accused.

b) Millar and Seaton have both identified Wabano as the assailant. However, they have also both acknowledged that everything happened quickly on the night in question, they were grieving, under a significant amount of stress from the incident, and the officer at the scene described them as “amped up”. Their opportunity to observe and recall events accurately is compromised.

c) There were no descriptors used by Millar or Seaton that were unique to Wabano or would have distinguished him from Moonias. They merely described a dark haired, slim, indigenous man who was drooling and appeared to be “high”. Their description could be equally consistent with Moonias, who officers have acknowledged, looks quite similar. Photographs submitted as evidence in the trial demonstrate the similarities between the two men.

d) Neither Millar nor Seaton identified Wabano as the assailant from either a line-up or photograph line-up and had never been shown a picture of Moonias. They first identified Wabano only after having seen a Facebook news article that showed a picture of Wabano as having been the person arrested for the crimes. Their identification of Wabano as the assailant from the witness stand should be viewed with considerable caution and afforded little weight.

e) With respect to the clothing that was worn by the assailant, the evidence of Millar and Seaton is simply that it was dark clothing. They did not specifically identify the clothing (i.e. a Puma shirt). They were inconsistent as to whether he was wearing a hat or not.

f) The facial injuries on Wabano’s face at the time of his arrest are not relevant. There is no evidence as to when or how those injuries were sustained. Furthermore, the Super 8 surveillance that shows Wabano returning to the hotel at 1:08 a.m. does not show any facial injuries.

g) Moonias was taken to hospital on the night of the incident, bloodied, with injuries to the back of his head that required stitches. Seaton’s evidence that she pulled on the purse from behind the assailant is logically more consistent with the person falling backwards and hitting their head than falling forwards.

h) The Google Map evidence demonstrates that Wabano was within walking distance of the Tim Horton’s on the night in question, but so was Moonias. Moonias was found by police approximately 12 minutes away from the Tim Horton’s by foot. The Defence suggests this was within 15 minutes of the 911 call made by Seaton.

i) Millar’s evidence as to the direction the assailant ran in is consistent with the vicinity in which Moonias was located by police.

j) Moonias was the individual first charged by police for the crimes.

k) Moonias admitted that he was blackout drunk on the night of March 13 and the early hours of March 14. He was so drunk that he went into a stranger’s home. Millar’s and Seaton’s description of the assailant appearing “stunned” and the equivalent of “lights out, nobody’s home” is consistent with someone in a blackout state.

l) Moonias was found by police shortly after the attack to have drool or mucus on his face. There is no evidence, other than that of Moonias, of Wabano being in such a condition on the night in issue. The Super 8 surveillance that shows him returning to the hotel does not show him stumbling, staggering or exhibiting any other signs of intoxication.

m) The Facebook messenger group chat excerpts are not reliable evidence of Wabano’s guilt. Moonias has acknowledged tampering with the chat by deleting posts from other individuals and by changing the name from “FuckboiiWabbz” to “Myles”. It also is not the full conversation.

n) There is no forensic evidence linking the knife to Wabano. The only evidence we have linking a knife to Wabano is the self-serving evidence of Moonias who claims that Wabano had a knife earlier that night.

o) There is inconsistent evidence from the various witnesses as to the size of the tablet Wabano was allegedly holding.

p) The Tim Horton’s surveillance evidence is too grainy to be reliable.

q) The fact that Wabano’s DNA is on the bottle that was found at the scene is not determinative. Ms. Stadler, the forensic expert testified that it is not possible to ascertain when the DNA evidence was deposited and there was the DNA of two individuals found on the bottle. Moonias confirmed that he drank from the bottle.

Analysis:

78The Crown, on the other hand, argues that there is overwhelming evidence to support the proposition that Wabano committed the robbery and assaults on March 14, 2018 and not Moonias.

79I agree with the Crown. For the following reasons I find that the Crown has satisfied the burden placed on it of proving that Myles Wabano committed the crimes with which he is charged beyond a reasonable doubt:

a) At 8:24 p.m. on March 13, 2018 the Super 8 surveillance shows Wabano entering the building carrying a tablet. At 8:48 p.m. Wabano is seen leaving the hotel with the tablet. The evidence of Moonias is that Wabano had a tablet with him that night. Moonias did not have a device of any kind other than the cell phone he borrowed from “Farrah” temporarily at McDonald’s to take a selfie. The evidence of Seaton and Millar is that the assailant was carrying a tablet. Seaton took the tablet from him temporarily. Wabano was seen on Super 8 surveillance returning to the hotel at 1:08 a.m. on March 14, 2018 with the tablet in his hands. The fact that the witnesses, more than a year and a half later could not accurately describe the size of the tablet was insufficient to create doubt.

b) The evidence of Moonias is that Wabano purchased a bottle of Silent Sam vodka for the group to drink. They drank some at the Landmark hotel. Wabano kept the bottle and pulled it out in the bathroom at the McDonald’s restaurant, where he and Moonias each took a shot. Moonias believed that Wabano still had the bottle when they parted ways. Seaton testified that the assailant swung a bottle at her, although she could not be certain as to whether it was a bottle of vodka or water. He then tossed the bottle before running away. A bottle of Silent Sam vodka was found in the area of the robbery. That bottle had Wabano’s DNA on it, although not his alone.

c) The evidence of Moonias is that both he and Wabano were very intoxicated. Wabano was acting in an aggressive, violent and emotionless manner. He pulled out a knife and was talking about robbing a convenience store. To the best of Moonias’ knowledge, Wabano still had the knife when they parted ways. Wabano’s erratic behaviour concerned Moonias enough that he chose to part ways with him. There is no evidence that Moonias had a knife. A knife was used to stab Millar.

d) Wabano acknowledged in the police video statement that he takes an anti-depressant by the name of Wellbutrin that has the effect of making him “emotionless”. Wabano acknowledged having been drunk. Both Millar and Seaton described the assailant as appearing ‘out of it’.

e) The fact that Wabano was not stumbling or staggering on the Super 8 video surveillance does not mean that he was not intoxicated on the night in question or not in in the state described by Moonias, Seaton and Millar.

f) The evidence of Moonias is that when he left Wabano some time after midnight, Wabano continued walking towards the Super 8 in a direction that could have put him at the Tim Horton’s. Moonias, on the other hand, entered the wrong home, the home owners called the police, and he sat outside waiting for police to arrive. He did not go in the direction of the Tim Horton’s at all.

g) The Defence suggests that the police found Moonias at the home until approximately 12 minutes after the 911 call. I could not find the evidence to this effect, other than Defence counsel’s suggestion to Moonias that this was the case. If I have simply over looked this evidence, I note that the robbery took place minutes before the 1:00 a.m. 911 call. If Moonias had been the assailant, the Google Map evidence demonstrates that it would have taken him 12 minutes to go from the Tim Horton’s to the Ray Boulevard home on foot. While I acknowledge that Moonias could have been at the Tim Horton’s, this is nothing more than speculation. Furthermore, I do not find it to be a reasonable inference to be drawn from the evidence. Moonias not only needed time to get from the Tim Horton’s to Ray Boulevard, but he also needed time to enter the home, have the home owners call police and for the police to arrive. Nonetheless, Moonias’ evidence is that he was not at the Tim Horton’s on the night in issue and there is no evidence to contradict this.

h) Wabano, on the other hand, returned to his hotel 8 minutes after the 911 call. The hotel is 6 minutes on foot from the Tim Horton’s.

i) The assailant is described by Millar and Seaton as wearing dark coloured clothing. The Expert Hearing video surveillance shows a man entering the street and walking in the direction of the Tim Horton’s wearing all dark clothing. Millar described the assailant as wearing a dark jacket and dark pants. Seaton described him wearing a toque. Wabano was pictured in the McDonald’s selfie as wearing dark pants, a dark jacket and a toque. Moonias was not wearing dark coloured pants in the selfie and was not wearing a jacket. He was also not wearing a toque. Similarly, in the hospital footage of Moonias, taken less than an hour after the robbery, shows that he is still wearing lighter coloured khaki pants with no jacket or toque.

j) The Tim Horton’s video that shows a male lurking in the windows just prior to the robbery appears to be wearing dark clothing. On the top of his head is a toque. While the image is admittedly grainy, the emblem on the shirt of the male appears to be the Puma brand logo that Wabano was photographed wearing hours before at McDonald’s. The Super 8 video shows Wabano return to the hotel approximately 8 minutes after the 911 call was placed, wearing his toque, dark jacket, dark pants and Puma logo shirt.

k) When Wabano was arrested he had injuries on his face consistent with Millar’s evidence that she pushed the assailant’s face into the snow on the ground. I do not accept that Moonias’ injuries were consistent with the description of the altercation given by Millar and Seaton. While admittedly the altercation happened quickly, and the women were not clear as to certain details, Seaton was clear that when she pulled at the purse this turned the assailant around and he fell face down. Moonias’ injuries were to the back of his head, consistent with the explanation of his altercation with his father.

l) I acknowledge the Defence’s argument that the Super 8 video did not show cuts to Wabano’s face. The view of Wabano’s nose and forehead is not sufficiently clear to have seen whether or not there were scrapes.

80Overall, while the evidence may be largely circumstantial, the only reasonable and logical inference that may be drawn from it, is that Myles Wabano committed the robbery and assaults against Millar and Seaton on March 14, 2018. While I acknowledge that there are physical similarities in height, build and facial features as between Moonias and Wabano, I have no doubt as to Wabano’s guilt.

81With respect to the Defence argument that Moonias’ evidence is unreliable, I acknowledge that he was originally charged with these crimes and may have had an incentive to point the finger elsewhere. Despite this, I found him to be a credible witness overall. He answered the questions put to him in a forthright manner. He did not minimize his own behaviour on March 13, 2018. He acknowledged candidly that he was intoxicated to the point of going in and out of a blackout and entering a stranger’s home. He acknowledged having had an altercation with his father. He acknowledged that he did not remember certain things. For example, he could not identify the knife with any certainty. His testimony was largely unshaken in cross-examination.

82I do accept the Defence argument that there are considerable frailties associated with Millar and Seaton’s identification of Wabano as the assailant from the witness stand. While both women were confident that they had clearly seen and recalled his face, they had not previously identified him as the assailant in any out of court process such as through a photo line-up. The Facebook article they read may have also influenced their identification of Wabano. For these reasons, I afforded no weight to their identification of Wabano at trial and relied primarily upon their description of the assailant given at the time of the attack.

83I find that there is sufficient evidence supporting a conviction without reliance upon the Facebook messages. If, however, I am incorrect, this evidence confirms Wabano’s guilt with respect to the robbery at least. In the messages sent the day after the robbery, Wabano clearly acknowledges having robbed two women near “Tim’s”. While Wabano in his police interview tried to suggest that he did not actually commit the crimes, and was simply trying to brag, he also acknowledged that he did not remember the full night and he revealed details of the robbery in this group chat that were not yet known to the public. For example, the fact that part of the altercation took place on a sidewalk. He acknowledges both in the police statement and the excerpts having been in a blackout state. This is consistent with Millar and Seaton’s description of the state of the assailant.

84The Defence argues that little weight should be afforded to the messages because of the tampering by Moonias. The evidence of Moonias does not suggest that he altered the content of Wabano’s messages in any way. He simply deleted comments or reference to and from other individuals in the chat and changed the view to reveal Wabano’s name as opposed to his nickname. There is no evidence, merely speculation, of any tampering with the substance of Wabano’s messages to the group.

DISPOSITION:

85For the foregoing reasons, Myles Evan Brian Wabano is found to be guilty of Count #2, namely having robbed Liana Miller on March 14, 2018 and injured her by stabbing her contrary to s. 343(b) of the Criminal Code; and guilty of Count #3, namely that he did commit an assault against Carol Seaton on March 14, 2018 contrary to s. 267(a) of the Criminal Code by threatening her with a bottle. There will be a finding of not guilty with respect to Count #1 (s. 264.1(1)(a) - uttering threats).